EXHIBIT 4.13
Dated 15 April 2004
NAM TAI ELECTRONIC & ELECTRICAL PRODUCTS LIMITED
and
NAM TAI ELECTRONICS, INC.
and
THE EXECUTIVE DIRECTORS
(AS DEFINED HEREIN)
and
THE HONGKONG AND SHANGHAI BANKING CORPORATION
LIMITED
and
THE PUBLIC OFFER UNDERWRITERS
(AS DEFINED HEREIN)
PUBLIC OFFER UNDERWRITING AGREEMENT
relating to a Public Offer consisting
initially of 20,000,000 Shares (subject to adjustment) of nominal value HK$0.01
each in the capital of
Nam Tai Electronic & Electrical Products Limited
LINKLATERS
10th Floor, Alexandra House
Chater Road
Hong Kong
Telephone (852) 2842 4888
Facsimile (852) 2810 8133/2810 1695
Ref: L-065038-05-001/DWLT/KKLC
TABLE OF CONTENTS
CONTENTS PAGE
1 INTERPRETATION ............................................. 2
2 THE GLOBAL OFFERING ........................................ 10
3 THE PUBLIC OFFER ........................................... 14
4 COSTS, EXPENSES, FEES AND COMMISSIONS ...................... 21
5 REPRESENTATIONS, WARRANTIES AND UNDERTAKINGS ............... 23
6 FURTHER UNDERTAKINGS ....................................... 25
7 INDEMNITY .................................................. 32
8 CONTRIBUTION ............................................... 35
9 TERMINATION IN EXCEPTIONAL CIRCUMSTANCES ................... 36
10 GENERAL PROVISIONS ......................................... 38
SCHEDULE 1 The Public Offer Underwriters ........................ 47
SCHEDULE 2 The Executive Directors .............................. 48
SCHEDULE 3 The Reorganisation Documents ......................... 49
SCHEDULE 4 The Conditions Precedent Documents ................... 50
SCHEDULE 5 Advertising Arrangements ............................. 52
SCHEDULE 6 Professional Investor Treatment Notice ............... 53
SCHEDULE 7 The Warranties ....................................... 55
SIGNATURE PAGE .................................................. 75
- i -
THIS AGREEMENT is made on 15 April 2004
BETWEEN:
(1) NAM TAI ELECTRONIC & ELECTRICAL PRODUCTS LIMITED, a company incorporated
under the laws of the Cayman Islands whose registered office is at Century
Yard, Cricket Square, Hutchins Drive, P.O. Box 2681 GT, George Town, Grand
Cayman, British West Indies (the "COMPANY");
(2) NAM TAI ELECTRONICS, INC., a company incorporated under the laws of
British Virgin Islands whose registered office is at McW. Todman & Co.,
McNamara Chambers, PO Box 3342, Road Town, Tortola, British Virgin Islands
(the "SELLING SHAREHOLDER");
(3) THE EXECUTIVE DIRECTORS (as hereinafter defined);
(4) THE HONGKONG AND SHANGHAI BANKING CORPORATION LIMITED, a company
incorporated under the laws of Hong Kong whose registered office is at 1
Queen's Road Central, Hong Kong ("HSBC"); and
(5) THE PUBLIC OFFER UNDERWRITERS (as defined herein).
RECITALS:
(A) The Company was incorporated in the Cayman Islands with limited liability
on 9 June 2003 under the Companies Law and has submitted a valid
application (together with all necessary supporting documents) to the
Registrar of Companies in Hong Kong to be registered as an oversea company
in Hong Kong under Part XI of the Companies Ordinance on 19 March 2004;
(B) As at the date of this Agreement, the authorised share capital of the
Company is HK$20,000,000 divided into 2,000,000,000 Shares, of which
800,000,000 Shares have been allotted and issued and are fully paid or
credited as fully paid;
(C) As at the date of this Agreement, the Selling Shareholder is the legal and
beneficial owner of 800,000,000 Shares representing 100% of the existing
issued share capital of the Company;
(D) The Selling Shareholder has agreed to offer for sale the Public Offer
Shares pursuant to the Public Offer at the Offer Price (as defined
herein);
(E) The Company, the Selling Shareholder and the International Underwriters
(as defined herein) are expected to enter into the International
Underwriting Agreement (as defined herein) providing for the International
Underwriters to purchase or procure the purchase of the International
Placing Shares (as defined herein) on the terms and subject to the
conditions set out therein;
(F) The Selling Shareholder is expected to grant to HSBC, exercisable at the
sole and absolute discretion of HSBC, the Over-allotment Option (as
defined herein) to require the Selling Shareholder to sell up to an
aggregate of 30,000,000 additional Shares, subject to and on the terms of
the International Underwriting Agreement;
(G) Immediately upon completion of the Global Offering (as defined herein) and
assuming the Over-allotment Option (as defined herein) will not be
exercised, the Selling Shareholder will own 600,000,000 Shares
representing 75% of the existing issued share capital of the Company or,
if the Over-allotment Option (as defined herein) expected to be granted is
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fully exercised, the Selling Sharehofder will own 570,000,000 Shares
representing 71.25% of the existing issued share capital of the Company;
(H) At a meeting of the board of Directors held on 8 April 2004, resolutions
were passed pursuant to which, inter alia, Directors were authorised to
agree and sign on behalf of the Company this Agreement and all the other
relevant documents in connection with the Global Offering;
(I) The Public Offer Underwriters have severally agreed to underwrite the
Public Offer, on the terms and subject to the conditions set out herein;
(J) The Executive Directors are the executive directors of the Company;
(K) The Company has appointed HSBC to act as the sponsor in respect of the
listing of the Share on the Stock Exchange;
(L) The Selling Shareholder has appointed HSBC to act as the global
coordinator, lead manager and bookrunner of the Global Offering;
(M) The Selling Shareholder proposes to appoint HSBC to act as the Receiving
Banker for the Public Offer;
(N) The Company proposes to appoint Computershare Hong Kong Investor Services
Limited to act as its Hong Kong branch share registrar and transfer
office;
(O) HSBC, on behalf of the Company, has submitted an application to the Stock
Exchange for listing of and permission to deal in the Shares in issue and
the Shares to be issued as described in the Prospectus; and
(P) The Warrantors have agreed to give the representations, warranties and
undertakings contained in this Agreement.
IT IS HEREBY AGREED as follows:
1 INTERPRETATION
1.1 DEFINITIONS
in this Agreement (including the Recitals and the Schedules), the
following expressions shall, unless defined otherwise or the context
otherwise requires, have the following meanings:
"ACCEPTANCE DATE" the date on which the Application Lists close in
accordance with the provisions of Clause 3.1.2;
"ACCEPTED PUBLIC OFFER Public Offer Applications which have been
APPLICATIONS" accepted (whether in whole or in part)
pursuant to the provisions of Clause 3.1.3;
"ACCOUNTS DATE" 31 December 2003;
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"AFFILIATE" in relation to a particular company, any company
or other entity which is its holding company or
subsidiary, or any subsidiary of its holding
company or which directly or indirectly through
one or more intermediaries, controls or is
controlled by, or is under common control with,
the company specified. For the purposes of this
definition, the term "control" (including
the terms "controlling", "controlled by" and
"under common control with") means the possession,
direct or indirect, of the power to direct or
cause the direction of the management and policies
of a person, whether through the ownership of
voting securities, by contract, or otherwise;
"AGREEMENT AMONG PUBLIC the agreement expected to be entered into on the
OFFER UNDERWRITERS" date hereof between HSBC and the other Public
Offer Underwriters governing certain rights and
obligations as between the Public Offer
Underwriters in relation to the Public Offer;
"APPLICATION FORMS" the application forms on which Public Offer
Appliations may be made, which are in agreed form
(as amended or supplemented pursuant to Clause 6.1
.1 (x));
"APPLICATION LISTS" the application lists referred to in Clause 3.1.2;
"APPROVALS" includes all approvals, sanctions, orders,
franchises, clearances, declarations,
qualifications, licences, permits, certificates,
consents, permissions, authorisations, filings and
registrations and "APPROVAL" shall be construed
accordingly;
"ARTICLES OF ASSOCIATION" the articles of association of the Company
conditionally adopted on 8 April 2004;
"BOARD" the board of directors of the Company;
"BROKERAGE" brokerage per Share of 1% of the Offer Price;
"BROKERAGE, FEE AND the Brokerage, the Trading Fee, the Transaction
LEVIES" Levy and the Investor Compensation Levy;
"BUSINESS DAY" a day that is not a Saturday, Sunday or public
holiday in Hong Kong;
"CCASS" the Central Clearing and Settlement System
established and operated by Hong Kong Securities
Clearing Company Limited;
"COMPANIES LAW" the Companies Law, Cap. 22 (Law 3 of 1961, as
consolidated and revised) of the Cayman Islands;
"COMPANIES ORDINANCE" the Companies Ordinance (Chapter 32 of the Laws of
Hong Kong) (as amended);
"CONDITIONS" the conditions set out in Clause 2.1.1;
"CONDITIONS PRECEDENT the documents listed in Schedule 4;
DOCUMENTS"
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"CONTINUING BUSINESSES" the businesses carried out by the Group in the
three years ended 31 December 2003, except for the
Discontinued Businesses;
"DEED OF INDEMNITY" the deed of indemnity dated 15 April 2004 provided
in connection with the Global Offering entered
into between the Selling Shareholder and the
Company;
"DIRECTORS" the directors of the Company whose names are set
out in the section headed "Directors, Senior
Management and Staff" in the Prospectus;
"DISCONTINUED the Group's discontinued businesses related to the
BUSINESSES" trading and manufacturing of essential components
and subassemblies for mobile phones in the three
years ended 31 December 2003;
"ENCUMBRANCE" any pledge, charge, lien, mortgage, security
interest, claim, pre-emption rights, equity
interest, third party rights or interests or
rights similar to the foregoing;
"EXECUTIVE DIRECTORS" the executive directors of the Company whose names
and addresses are listed in Schedule 2;
"FINAL OFFERING CIRCULAR" the final offering circular expected to be issued
by the Company in connection with the
International Placing (as amended or supplemented
pursuant to Clause 6.1.1 (x));
"FORCE MAJEURE EXPIRY the Listing Date;
DATE"
"FORMAL NOTICE" the formal notice to be published in connection
with the Public Offer, which is in agreed form (as
amended or supplemented pursuant to Clause 6.1.1
(x));
"GLOBAL OFFERING" the Public Offer and the International Placing;
"GOVERNMENTAL AUTHORITY" any public, regulatory, taxing, administrative or
governmental, agency or authority (including,
without limitation, the Stock Exchange and the
SFC), other authority and any court at the
national, provincial, municipal or local level;
"GROUP" the Company, NTSZ and NTIC or, where the context
so requires, in respect of the period before the
Reorganisation is completed, the Continuing
Businesses operated by NTSZ and the businesses
operated by NTIC and the sales co-ordination and
marketing activities operated by NTEEPHK;
"HK DOLLAR" AND "HK$" Hong Kong dollar, the lawful currency of Hong
Kong;
"HOLDING COMPANY" has the meaning ascribed thereto in section 2 of
the Companies Ordinance;
"HONG KONG" the Hong Kong Special Administrative Region of the
PRC;
"INDEMNIFIED PARTY" has the meaning ascribed thereto in Clause 7.1;
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"INDEMNIFYING PARTY" has the meaning ascribed thereto in Clause 7.1;
"INTERNATIONAL PLACING" the conditional placing of the International
Placing Shares on and subject to the terms of the
Placing Documents and the International
Underwriting Agreement;
"INTERNATIONAL PLACING the 180,000,000 Shares initially to be offered for
SHARES" sale by the Selling Shareholder and placed under
the International Placing, subject to adjustment
as provided in the International Underwriting
Agreement;
"INTERNATIONAL PLACING the underwriters identified in the International
UNDERWRITERS" Underwriting Agreement as being the several
underwriters of the International Placing;
"INTERNATIONAL an international underwriting agreement expected
UNDERWRITING AGREEMENT" to be entered into on the Price Determination Date
among the Company, the Selling Shareholder, the
Executive Directors, HSBC and the International
Placing Underwriters in substantially agreed form;
"INVESTOR COMPENSATION SFC investor compensation levy per Share of 0.002%
LEVY" of the Offer Price;
"LAWS" include all laws, rules, statutes, ordinances,
regulations, guidelines, opinions, notices,
circulars, orders, judgements, decrees or rulings
of any Governmental Authority and "LAW" includes
any one of them;
"LISTING COMMITTEE" the listing committee of the Stock Exchange;
"LISTING DATE" the day on which dealings in the Shares commence
on the Stock Exchange;
"LISTING RULES" the Rules Governing the Listing of Securities on
The Stock Exchange of Hong Kong Limited;
"MACAO" the Macao Special Administrative Region of the
PRC;
"NOMINEE" HSBC Nominees (Hong Kong) Limited;
"NTEEPHK" Nam Tai Electronic & Electrical Products Limited,
a company incorporated under the laws of Hong
Kong;
"NTIC" Nam Tai Investments Consultant (Macao Commercial
Offshore) Company Limited, a company incorporated
in Macao and wholly owned by the Company;
"NTSZ" Name in Chinese (Namtai Electronic (Shenzhen)
Company Limited), a wholly foreign owned
enterprise established under the laws of the PRC
and wholly owned by the Company;
"OFFER DOCUMENTS" the Public Offer Documents and the Placing
Documents;
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"OFFER PRICE" the final Hong Kong dollar price per Offer Share
(exclusive of the Brokerage, Fee and Levies) at
which the Public Offer Shares are to be offered as
determined in accordance with the provisions of
Clause 2.5;
"OFFER SHARES" the Public Offer Shares and the International
Placing Shares;
"OPERATIVE DOCUMENTS" the Reorganisation Documents, the Deed of
Indemnity, the Price Determination Agreement, the
Receiving Banker Agreement, the Registrars
Agreement and the Sub-Registrars Agreement;
"OVER-ALLOTMENT OPTION" the option expected to be granted by the Selling
Shareholder to HSBC, exercisable by HSBC, to
require the Selling Shareholder to sell up to an
aggregate of 30,000,000 additional Shares pursuant
to the international Underwriting Agreement;
"OVER-ALLOTMENT SHARES" the additional Shares which the Selling
Shareholder may be required to sell at the Offer
Price pursuant to the Over-allotment Option;
"PENSION SCHEMES" the provident fund, retirement and welfare fund
schemes of members of the Group as described in
the section headed "Directors, Senior Management
and Staff" of the Prospectus;
"PLACING DOCUMENTS" the Preliminary Offering Circular and the Final
Offering Circular;
"PRC" the People's Republic of China (which shall for
the purposes of this Agreement, unless otherwise
indicated, exclude Hong Kong, Macao and Taiwan);
"PRE-IPO SHARE OPTION the share option scheme adopted by the sole
SCHEME" shareholder of the Company by way of written
resolution dated 22 March 2004, the principal
terms of which are summarised in the paragraph
headed "Pre-IPO Share Option Scheme" in Appendix V
of the Prospectus;
"PRELIMINARY OFFERING the preliminary offering circular dated 12 April
CIRCULAR" 2004 and prepared in respect of the International
Placing and circulated to the Public Offer
Underwriters (as amended or supplemented pursuant
to Clause 6.1.1 (x));
"PRICE DETERMINATION the agreement expected to be entered into on the
AGREEMENT" Price Determination Date between the Company, the
Selling Shareholder and HSBC (on behalf of the
Public Offer Underwriters) to record their
agreement of the Offer Price;
"PRICE DETERMINATION means the date on which the Offer Price is fixed
DATE" for the purposes of the Public Offer in
accordance with the Public Offer Documents and
Clause 2.5;
"PROFESSIONAL INVESTOR the notice from HSBC in the form set out in
TREATMENT NOTICE" Schedule 6;
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"PROPERTY VALUERS" LCH (Asia-Pacific) Surveyors Limited;
"PROSPECTUS" the prospectus to be issued by the Company in
connection with the Public Offer (as amended or
supplemented pursuant to Clause 6.1.1(x));
"PROSPECTUS DATE" the date of issue of the Prospectus, which is
intended to be on or about 16 April 2004;
"PUBLIC OFFER" the offer of the Public Offer Shares for sale on
and subject to the terms and conditions set out in
the Public Offer Documents;
"PUBLIC OFFER valid applications for Public Offer Shares made on
APPLICATIONS" Application Forms (including, without limitation
and for the avoidance of doubt, applications made
on white Application Forms by HKSCC Nominees
Limited on behalf of applicants who have given
electronic application instructions) and
accompanied by cheques or cashier's orders for the
full amount payable on application which are
honoured on first (or, at HSBC's option,
subsequent) presentation and otherwise in
compliance with the terms of the Public Offer
Documents;
"PUBLIC OFFER APPLICATION application moneys received in respect of Public
MONEYS" Offer Applications;
"PUBLIC OFFER DOCUMENTS" the Prospectus and the Application Forms;
"PUBLIC OFFER SHARES" the 20,000,000 Shares initially being offered for
sale by the Selling Shareholder pursuant to the
Public Offer, as adjusted in accordance with
Clauses 2.3 and 2.4;
"PUBLIC OFFER OVER- a situation where the aggregate number of Public
SUBSCRIPTION" Offer Shares being applied for under Public
Offer Applications is greater in number than the
aggregate number of the initial Public Offer
Shares;
"PUBLIC OFFER UNDER- has the meaning attributed thereto in Clause
SUBSCRIPTION" 3.4.2;
"PUBLIC OFFER the underwriters whose names and addresses are
UNDERWRITERS" listed in Schedule 1, being the several
underwriters of the Public Offer;
"PUBLIC OFFER UNDERWRITING in relation to a Public Offer Underwriter, the
COMMITMENT" maximum number of Public Offer Shares the
application for which such Public Offer
Underwriter has agreed to underwrite pursuant to
the terms of this Agreement, as calculated by
applying the percentages set out in Clause
3.4.2(a) to the number of initial Public Offer
Shares, subject to adjustment as set out in Clause
2.4;
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"RECEIVING BANKER" HSBC, in its capacity as the bank appointed to
hold the application monies received in connection
with the Public Offer pursuant to the Receiving
Banker Agreement;
"RECEIVING BANKER the agreement to be entered into by the Selling
AGREEMENT" Shareholder, the Nominee, HSBC, which is in the
agreed form;
"REFERENCE PUBLIC OFFER the amount obtained by A x (B - C) where A = the
AMOUNT" Offer Price, B = the initial number of Public
Offer Shares, C = the number of unsubscribed
Public Offer Shares which are reallocated to the
International Placing in accordance with Clause
2.4;
"REGISTRARS" Bank of Butterfield International (Cayman) Ltd.,
being the principal share registrar of the
Company;
"REGISTRARS AGREEMENT" the registrars and transfer agent agreement to be
entered into between the Company and the
Registrars in agreed form;
"RELEVANT PUBLIC OFFER in relation to any Public Offer Underwriter, a
APPLICATION" Public Offer Application made or procured to be
made by such Public Offer Underwriter, the number
of Public Offer Shares comprised in which is
applied to reduce the Public Offer Underwriting
Commitment of such Public Offer Underwriter
pursuant to the provisions of Clause 3.4.1 ;
"REORGANISATION" the corporate reorganisation of the Group in
preparation for the listing of the Shares on the
Stock Exchange as defined and described in the
Prospectus;
"REORGANISATION the documents referred to in Schedule 3;
DOCUMENTS"
"REPORTING ACCOUNTANTS" Deloitte Touche Tohmatsu;
"SFC" the Securities and Futures Commission of Hong
Kong;
"SHARE OPTION SCHEME" the share option scheme conditionally adopted by
the sole shareholder of the Company at an
extraordinary general meeting held on 8 April
2004, the principal terms of which are summarised
in the paragraph headed "Share Option Scheme" in
Appendix V of the Prospectus;
"SHARE(S)" ordinary shares of nominal value HK$0.01 each in
the share capital of the Company;
"STOCK EXCHANGE" The Stock Exchange of Hong Kong Limited;
"SUB-REGISTRARS" Computershare Hong Kong Investor Services Limited,
being the Hong Kong branch share registrar of the
Company;
"SUB-REGISTRARS the branch registrar agreement to be entered into
AGREEMENT" between the Company and the Sub-Registrars, which
is in agreed form;
8
"SUBSIDIARIES" the Subsidiaries of the Company named in the
accountants' report, the text of which is set out
in Appendix 1 to the Prospectus, and "SUBSIDIARY"
means any or a specific one of them;
"SUBSIDIARIES" has the meaning ascribed thereto in the Companies
Ordinance;
"TRADING FEE" Stock Exchange trading fee per Share of 0.005% of
the Offer Price;
"TRANSACTION" any transaction, act, event, omission or
circumstance existing of whatever nature;
"TRANSACTION LEVY" SFC transaction levy per Share of 0.005% of the
Offer Price;
"UNDERWRITERS" the Public Offer Underwriters and the
International Placing Underwriters;
"UNDERWRITING DOCUMENTS" this Agreement, the Price Determination Agreement
and the International Underwriting Agreement;
"US" AND "UNITED STATES" the United States of America, its territories,
its possessions, any State of the United States
and the District of Columbia;
"US SECURITIES ACT" the United States Securities Act of 1933 (as
amended or supplemented);
"VERIFICATION NOTES" the verification notes dated 15 April 2004
prepared by Linklaters in connection with the
verification of the Prospectus;
"WARRANTIES" the representations, warranties, agreements and
undertakings to be given by the Warrantors in
Schedule 7; and
"WARRANTORS" the Company and the Selling Shareholder.
1.2 OTHER INTERPRETATION
In this Agreement, unless otherwise specified:
1.2.1 references to "RECITALS", "SECTIONS", "CLAUSES", "PARAGRAPHS" and
"SCHEDULES" are to recitals, sections, clauses, paragraphs of and
schedules to this Agreement;
1.2.2 a reference to any statute or statutory provision shall be construed
as a reference to the same as it may have been, or may from time to
time be, amended, modified or re-enacted;
1.2.3 references to a "COMPANY" shall be construed so as to include any
company, corporation or other body corporate, whenever and however
incorporated or established;
1.2.4 references to a "PERSON" shall be construed so as to include any
individual, firm, company, government, state or agency of a state or
any joint venture, association or (whether or not
having separate legal personality);
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1.2.5 references to writing shall include any modes of reproducing words
in a legible and non-transitory form;
1.2.6 references to times of the day are, unless otherwise specified, to
Hong Kong time;
1.2.7 headings to Clauses, sections and Schedules are for convenience only
and do not affect the interpretation of this Agreement;
1.2.8 the Schedules form part of this Agreement and shall have the same
force and effect as if expressly set out in the body of this
Agreement, and any reference to this Agreement shall include the
Schedules;
1.2.9 references to documents being "IN AGREED FORM" are to the form of
the draft or final or executed version thereof signed for
identification by or on behalf of the Company and HSBC with such
alterations as may be agreed between the Company and HSBC but such
documents in agreed form do not form part of this Agreement;
1.2.10 references to "best knowledge, information, belief and/or
awareness" of any person or similar terms shall be treated as
including but not limited to any knowledge, information, belief and
awareness which the person would have had if such person had made
due and careful enquiries; and
1.2.11 words in the singular shall include the plural (and vice versa) and
words importing one gender shall include the other two genders.
2 THE GLOBAL OFFERING
2.1 CONDITIONS PRECEDENT
2.1.1 OBLIGATIONS CONDITIONAL
The obligations of the Public Offer Underwriters under this
Agreement are conditional upon:
(i) HSBC, on behalf of the Public Offer Underwriters, receiving
from the Company and the Selling Shareholder (as the case may
be) the Conditions Precedent Documents not later than 6:00
p.m. on the Business Day before the Prospectus Date;
(ii) the Registrar of Companies in Hong Kong registering one copy
of the Prospectus certified by two Directors (or by their
agents duly authorised in writing) as having been approved by
resolution of the Board and having endorsed thereon or
attached thereto all necessary consents and other documents as
required by the provisions of section 342C of the Companies
Ordinance not later than the Business Day before the
Prospectus Date;
(iii) the Listing Committee granting listing of and permission to
deal in the Shares in issue and to be issued pursuant to the
Pre-IPO Share Option Scheme and the Share Option Scheme
(subject only to despatch of the share certificates in respect
thereof and such other normal conditions acceptable to the
Company and HSBC, on behalf of the Underwriters) not later
than 16 May 2004 and such listing and permission not
subsequently having been revoked prior to the commencement of
dealings in the Shares on the Stock Exchange;
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(iv) the Offer Price being duly determined as provided in Clause
2.5 and the Price Determination Agreement having been executed
by the Selling Shareholder and HSBC (on behalf of the Public
Offer Underwriters);
(v) the execution and delivery of the International Underwriting
Agreement on or before the Price Determination Date; and
(vi) the International Underwriting Agreement; to the extent that
it is subject to any specific conditions, becoming
unconditional in accordance with its terms (other than any
condition for the other Underwriting Documents to become
unconditional) and not having been terminated in accordance
with its terms or otherwise.
2.1.2 UNDERTAKING BY THE COMPANY, THE SELLING SHAREHOLDER AND THE
EXECUTIVE DIRECTORS
Each of the Company, the Selling Shareholder and the Executive
Directors undertakes to use its best endeavours to procure that the
Conditions are fulfilled by the times and dates stated therein, and
in particular shall furnish such information, supply such documents,
pay such fees, give such undertakings and do all such acts and
things as may be required by HSBC (on behalf of the Public Offer
Underwriters), the Stock Exchange, the Registrar of Companies in
Hong Kong, the SFC and any relevant Governmental Authority in
connection with the application for the listing of and permission to
deal in the Shares on the Stock Exchange or the fulfilment of the
Conditions.
2.1.3 HSBC'S WAIVER
HSBC may, for itself and on behalf of the other Public Offer
Underwriters, in its sole and absolute discretion, by giving notice
to the Company and the other Public Offer Underwriters on or before
the respective latest times on which the relevant Condition may be
fulfilled:
(i) extend the deadline for the fulfilment of any or all
Conditions by such number of days and/or hours and/or in such
manner as HSBC may determine on behalf of the Public Offer
Underwriters but in any event no later than 16 May 2004; or
(ii) waive (conditionally or unconditionally) the Condition under
Clause 2.1.1(i) on behalf of the Public Offer Underwriters.
2.1.4 TERMINATION
If any of the Conditions is not fulfilled, or waived in accordance
with Clause 2.1.3, this Agreement shall terminate with immediate
effect except that the provisions of Clause 9.2 shall apply.
2.2 STABILIZATION
2.2.1 HSBC is hereby appointed as stabilizing manager in connection with
the Global Offering and may (but shall not be obliged) and not as
agent for the Company or the Selling Shareholder, to the extent
permitted by applicable Law of Hong Kong or elsewhere, over allocate
or effect any other transactions (in the market or otherwise and
whether in Hong Kong or elsewhere) with a view to supporting the
market price of the Shares at a level higher than that which might
otherwise prevail
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in the open market for a limited period after the commencement of
trading in the Shares ("STABILIZING ACTION").
2.2.2 HSBC may, in its sole and absolute discretion, appoint any of its
Affiliates or any other person(s) to be its agent(s) for the
purposes of taking any stabilizing action, with such authorities and
rights as HSBC has pursuant to Clause 2.2.1.
2.2.3 Stabilizing action, if taken, may be discontinued at any time.
2.2.4 Any liability, expenses and any loss resulting from such stabilizing
action shall be borne, and any profit arising from such stabilizing
action shall be beneficially retained, by HSBC.
2.2.5 Each of the Warrantors and the Public Offer Underwriters (other than
HSBC) undertakes to the Public Offer Underwriters (including HSBC)
that it will not take or cause or authorise any other person to
take, and the Warrantors shall cause their respective affiliates,
agents and/or subsidiaries not to take, directly or indirectly, any
stabilizing action or any action which is designed to or which
constitutes or which might be expected to cause or result in the
stabilization or manipulation, in violation of applicable Laws, of
the price of any security of the Company, provided that the granting
of the Over-allotment Option under the International Underwriting
Agreement shall not constitute a breach of this Clause 2.2.5.
2.3 CLAWBACK FROM INTERNATIONAL PLACING TO PUBLIC OFFER AND POOLS
2.3.1 The aggregate number of the initial Public Offer Shares shall be
increased in the following manner: if the number of Shares validly
applied for in Accepted Public Offer Applications represents (i) 15
times or more but less than 50 times (ii) 50 times or more but less
than 100 times or (iii) 100 times or more, of the number of Shares
initially available for purchase under the Public Offer, then Shares
will be reallocated to the Public Offer from the International
Placing, so that the total number of Shares available under the
Public Offer will be increased to such number as represents
approximately 30% (in the case of (i)) or 40% (in the case of (ii))
or 50% (in the case of (iii)), respectively, of the number of Offer
Shares initially available under the Global Offering (before taking
into account any exercise of the Over-allotment Option).
2.3.2 In the event of a reallocation of Offer Shares from the
International Placing to the Public Offer pursuant to Clause 2.3.1,
the relevant number of International Placing Shares shall be
withdrawn from the International Placing and made available as
additional Public Offer Shares offered for sale pursuant to the
Public Offer, provided always that for the avoidance of doubt, any
such reallocation shall have no effect on obligations of the Selling
Shareholder to pay the commission due to the Public Offer
Underwriters which shall be determined pursuant to Clause 4.1.
2.3.3 The total number of Shares initially available under the Public
Offer (after taking into account any reallocation pursuant to this
Clause 2.3) shall be divided equally into two pools for allocation
purposes: pool A and pool B. The Shares in pool A will be allocated
by HSBC in its sole and absolute discretion on an equitable basis to
applicants who have applied for Shares with a total amount of HK$5
million (excluding the Brokerage, Fee and Levies payable) or less.
The Shares in pool B will be allocated by HSBC in its sole and
absolute discretion on an equitable basis to applicants who have
applied for Shares with a total amount of more than HK$5
12
million (excluding the Brokerage, Fee and Levies payable). HSBC
shall in its sole and absolute discretion determine the allocation
ratio for the two pools described above subject to the provisions
relevant thereto set out in the section headed "Structure and
Conditions of the Global Offering" in the Prospectus. Any Shares
which are reallocated from the International Placing to the Public
Offer pursuant to this Clause 2.3 shall, subject to the provisions
of this paragraph, be allocated in such manner as HSBC may, in its
sole and absolute discretion, determine.
2.4 ALLOCATION OF PUBLIC OFFER UNDER-SUBSCRIPTION TO INTERNATIONAL PLACING
If a Public Offer Under-Subscription shall occur, HSBC, at its sole and
absolute discretion, may (but shall not be obliged to) reallocate all or
any of the Public Offer Shares comprised in any such Public Offer
Under-Subscription from the Public Offer to the International Placing and
the Public Offer Underwriting Commitment of the relevant Public Offer
Underwriter or the Public Offer Underwriters, as the case may be, shall be
correspondingly automatically reduced in the same proportion as the
aggregate amount of Public Offer Shares is reduced as a result of any such
reallocation.
2.5 PRICE DETERMINATION
The Offer Price shall be fixed by agreement between the Selling
Shareholder (after consultation with the Company) and HSBC (on behalf of
the Public Offer Underwriters) in Hong Kong dollars after market demand
for the International Placing has been determined, which price (net of
Brokerage, Fee and Levies) shall not exceed HK$4.20. It is expected that
the Offer Price will be determined on or around the 22 April 2004,
provided that such determination shall in any event be made no later than
26 April 2004.
2.6 APPOINTMENT OF SPONSOR, GLOBAL COORDINATOR, BOOKRUNNER, LEAD MANAGER AND
PUBLIC OFFER UNDERWRITERS
2.6.1 Subject to the terms and conditions of this Agreement:
(i) the Company hereby appoints, to the exclusion of all others,
HSBC as its sponsor in respect of the listing of the Shares on
the Stock Exchange;
(ii) the Selling Shareholder hereby appoints, to the exclusion of
others, HSBC as the global coordinator, bookrunner and lead
manager to manage the Global Offering; and
(iii) the Selling Shareholder hereby appoints, to the exclusion of
others, the Public Offer Underwriters as underwriters for the
Public Offer,
and HSBC and other Public Offer Underwriters relying on the
representations, warranties, agreements, undertakings and
indemnities herein contained and subject as hereinafter mentioned,
accept their respective appointments hereunder.
2.6.2 Each such appointment is made on the basis, and upon terms, that the
appointee is irrevocably authorised to delegate all or any of its
relevant rights, duties, powers and discretions in such manner and
on such terms or subject to such conditions as it thinks fit (with
or without formality and without prior notice of any such delegation
being required to be given to the Company or the Selling
Shareholder) to any one or more of its Affiliates.
2.6.3 Each of the Company and the Selling Shareholder hereby confirms that
the foregoing appointments confer on each appointee and its
Affiliates all rights,
13
powers, authorities and discretions on behalf of the Company and the
Selling Shareholder which are necessary for, or incidental to, the
performance of its roles contemplated by this Agreement and hereby
agree to ratify and confirm everything which such appointee and its
Affiliates have done or shall do in the exercise of such rights,
powers, authorities and discretions.
3 THE PUBLIC OFFER
3.1 PUBLIC OFFER
3.1.1 OFFER OF PUBLIC OFFER SHARES
The Selling Shareholder will, subject to the determination of the
Offer Price pursuant to Clause 2.5, offer the Public Offer Shares
for purchase by the public at the Offer Price plus Brokerage, Fee
and Levies which is payable in full on application in Hong Kong
dollars, on and subject to the terms and conditions set out in the
Public Offer Documents and this Agreement. HSBC will, subject to
registration of the Public Offer Documents in accordance with
Clauses 2.1.1 (ii) and 2.1.1(iii), cause the Formal Notice to be
published in the newspapers and publications and on the date(s) set
out in Schedule 5 (or such other newspapers, publications and/or
date(s) as the Company, the Selling Shareholder and HSBC may agree).
3.1.2 APPLICATION LISTS
The application lists for the Public Offer Shares will, subject as
mentioned below, open at 11:45 a.m. on 21 April 2004 and will close
at 12:00 noon on the same day. In the event of a tropical cyclone
warning signal number 8 or above or a "black" rainstorm warning
signal (in any such case, a "SIGNAL") being in force in Hong Kong at
any time between 9:00 a.m. and 12:00 noon on 21 April 2004 then the
application lists will open at 11:45 a.m. and close at 12:00 noon on
the next Business day. All references in this Agreement to the time
of opening and closing of the application lists shall be construed
accordingly.
3.1.3 BASIS OF ALLOCATION
The Selling Shareholder agrees that HSBC shall have the sole and
exclusive right, in its sole and absolute discretion, on and subject
to the terms and conditions set out in the Public Offer Documents
and this Agreement, to accept or reject (in whole or in part) any
Public Offer Application and, where the number of Public Offer
Shares being applied for exceeds the total number of the Public
Offer Shares, to determine the basis of allocation of the Public
Offer Shares.
Each of the Company and the Selling Shareholder (as the case may be)
shall, and shall procure (and insofar as it is able) that the
Receiving Banker and the Sub-Registrars shall, as soon as
practicable and in no event later than 10:00 p.m. on the Acceptance
Date provide to HSBC with such information and assistance as HSBC
may require for the purposes of determining;
(i) in respect of a Public Offer Over-Subscription, the basis of
allocation of the Public Offer Shares; or
14
(ii) in respect of a Public Offer Under-Subscription, the number of
Public Offer Shares in respect of which Accepted Public Offer
Applications have not been received.
3.1.4 RECEIVING BANKER; NOMINEE
The Selling Shareholder will appoint the Receiving Banker to act as
receiving banker in connection with the receiving of Public Offer
Applications and the Nominee in connection with the receiving and
holding of Public Offer Application Moneys and any interest accruing
thereon, in both cases on and subject to the terms and conditions of
the Receiving Banker Agreement.
3.1.5 REGISTRARS AND SUB-REGISTRARS
The Company and the Selling Shareholder will appoint the Registrars
and the Sub-Registrars to provide services in connection with the
processing of Public Offer Applications on and subject to the terms
and conditions of the Registrars Agreement and the Sub-Registrars
Agreement.
3.1.6 FURTHER ASSURANCE
Without prejudice to the foregoing obligations, each of the Company,
the Selling Shareholder and the Executive Directors undertakes with
the Public Offer Underwriters that it will give all such assistance
and provide all such information and do (or procure to be done) all
such other acts and things as may be required by HSBC to implement
the Public Offer and this Agreement and that it will comply with all
requirements so as to enable listing of and permission to deal in
the Shares to be granted by the Listing Committee, such dealing to
commence on or before 16 May 2004 and to enable such listing to be
maintained thereafter, including in particular, effecting all
necessary registrations and/or filings with the Stock Exchange, the
SFC and the Registrar of Companies in Hong Kong, and the Executive
Directors and the Company will take all steps to ensure that each of
the Directors shall duly sign or cause to be duly signed on their
behalf all documents required to be signed by them as Directors for
the purpose of or in connection with any such registrations and/or
filings or the obtaining of listing of and permission to deal in the
Shares on the Stock Exchange.
3.2 PUBLIC OFFER DOCUMENTS
The Company will, on the Prospectus Date, issue the Public Offer Documents
and will cause such number of copies as HSBC directs of the Public Offer
Documents to be delivered to HSBC or as HSBC directs.
3.3 SALE OF PUBLIC OFFER SHARES
3.3.1 No later than 8:30 a.m. on the day which is two Business Days after
the Acceptance Date, the Selling Shareholder will deliver the
relevant share certificates for the Public Offer Shares together
with instruments of transfer and/or any other documents required to
effect the transfer of the Public Offer Shares under the applicable
Laws to the Sub-Registrars. The Selling Shareholder agrees to give
all consents and do all acts and things and execute all and any
documents which in the sole and absolute discretion of HSBC are
deemed necessary or desirable to effect the sale of the Public Offer
Shares. The Selling Shareholder shall sell each Public Offer Shares
free from any Encumbrance and with the benefit of all rights
15
attached thereto and thereafter accruing thereto including the right
to receive all dividends or other distributions which may declared,
paid or made thereon at or after the date of the transfer of the
Public Offer Shares pursuant to Clause 3.3.3.
3.3.2 Upon receipt by the Sub-Registrars of the Application Forms for the
Accepted Public Offer Applications, the Company shall (and the
Selling Shareholder shall procure that the Company) as soon as
practicable thereafter and in no event by later than 8:30 a.m. on
the fourth Business Day after the Acceptance Date:
{i) procure that the Sub-Registrars shall, conditional upon the
fulfilment of the Conditions, effect the cancellation of the
relevant share certificates for the Public Offer Shares and
the transfer of the public offer shares to the successful
applicants;
(ii) procure that the names of the successful applicants (or, where
appropriate, HKSCC Nominees Limited) shall be entered in the
register of members of the Company accordingly (without
payment of any registration fee); and
(iii) procure that share certificates in respect thereof (each in a
form complying with the Listing Rules and in such number and
denominations as directed by HSBC) shall be issued and
despatched, or delivered or released to successful applicants
(or where appropriate, Hong Kong Securities Clearing Company
Limited for immediate credit to such CCASS stock accounts as
shall be notified by HSBC to the Company for such purpose), or
made available for collection (as applicable) as provided for
in the Public Offer Documents and this Agreement.
3.4 UNDERWRITING OF THE PUBLIC OFFER
3.4.1 PUBLIC OFFER UNDERWRITERS' SET OFF
In relation to each Public Offer Application made or procured to be
made by any of the Public Offer Underwriters otherwise than pursuant
to the provisions of Clause 3.4.2, the Public Offer Underwriting
Commitment of such Public Offer Underwriter shall, subject to the
Application Form relating to such Public Offer Application having
been duly completed and marked with the name of such Public Offer
Underwriter (or any sub-underwriter of such Public Offer Underwriter
and designated as such) and to such Public Offer Application having
been accepted (whether in whole or in part) pursuant to the
provisions of Clause 3.1.3, be reduced pro tanto by the number of
Public Offer Shares comprised in such Public Offer Application to
the extent that such Public Offer Application has been accepted
until the Public Offer Underwriting Commitment of such Public Offer
Underwriter is reduced to zero. Application Forms and cheques or
cashier's orders for the full amount payable on application in
respect of Public Offer Applications to which this Clause 3.4.1
applies may be submitted in the manner provided for in the Public
Offer Documents with delivery of a copy to HSBC, on or before 10:00
a.m. on the Acceptance Date,
3.4.2 SEVERAL UNDERWRITING COMMITMENTS
On and subject to the terms and conditions of this Agreement and in
reliance upon the Warranties, if and to the extent that, by 12:00
noon on the Acceptance Date, there shall remain any Public Offer
Shares which have not been validly applied for pursuant to Accepted
Public Offer Applications or in respect of which payment has
16
not been cleared (a "PUBLIC OFFER UNDER-SUBSCRIPTION"), the Public
Offer Underwriters (other than any Public Offer Underwriter whose
Public Offer Underwriting Commitment has been reduced by Relevant
Public Offer Applications to zero pursuant to Clause 3.4.1) shall,
subject as provided in Clause 3.4.7, apply or procure applications
for such Public Offer Shares at the Offer Price in accordance with
the terms and conditions set out in the Public Offer Documents
(other than as to the deadline for making Public Offer Applications
and the terms of payment) and shall pay or procure to be paid the
full amount payable on application (plus Brokerage, Fee and Levies)
in accordance with Clause 3.4.6, provided that the obligations of
the Public Offer Underwriters in respect of such Public Offer Shares
under this Clause 3.4.2 shall be several (and not joint or joint and
several) on the basis that each Public Offer Underwriter shall apply
or procure applications for the number of such Public Offer Shares
up to but not exceeding the number of Public Offer Shares calculated
by applying the percentage set opposite the name of such Public
Offer Underwriter in column (II) below to the total number of Public
Offer Shares finally determined, subject to adjustment as referred
to in Clauses 2.3 and 2.4 (if applicable) and each Public Offer
Underwriter's obligations in respect of such Public Offer Shares
shall be borne in the proportion which:
(a) the number of Public Offer Shares calculated by applying the
percentage set opposite the name of such Public Offer
Underwriter in column (II) below to the total number of Public
Offer Shares finally determined:
(I) (II)
NAME OF UNDERWRITER %
HSBC 71
BNP Paribas Peregrine Capital Limited 10
Nomura International (Hong Kong) Limited 10
Cazenove Asia Limited 3
DBS Asia Capital Limited 3
VC CEF Capital Limited 3
less the number of Public Offer Shares comprised in Relevant
Public Offer Applications of such Public Offer Underwriter
bears to
(b) the aggregate number of Public Offer Shares less the aggregate
number of Public Offer Shares comprised in Relevant Public
Offer Applications of all Public Offer Underwriters.
The obligations of the Public Offer Underwriters determined pursuant
to this Clause 3.4.2 may be rounded, as determined by HSBC in its
sole and absolute discretion, to avoid fractions and odd lots. The
determination of HSBC shall be final and conclusive.
3.4.3 ACCEPTANCE OF APPLICATIONS
The Selling Shareholder agree with the Public Offer Underwriters
that all duly completed Application Forms received prior to the
Application Lists being closed and accepted by HSBC pursuant to
Clause 3.1.3, either in whole or in part, will, if accompanied with
a remittance which has been duly cleared, be accepted by the
17
Selling Shareholder before calling upon the Public Offer
Underwriters or any of them to perform the obligations imposed on it
by this Clause 3.4.
3.4.4 CALCULATION OF PUBLIC OFFER SHARES APPLIED FOR
Following the closing of the Application Lists, the Company and the
Selling Shareholder shall procure that the Receiving Banker and the
Sub-Registrars shall as soon as possible, and in any event not later
than 5:00 p.m. on the second Business Day following the Acceptance
Date, to calculate the number of Public Offer Shares for which duly
completed Application Forms have been received and to complete the
processing of the Public Offer Applications and in the event of a
Public-Offer Under-Subscription, to notify HSBC forthwith of the
number of the unsubscribed Public Offer Shares.
3.4.5 NOTIFICATION TO THE PUBLIC OFFER UNDERWRITERS
Subject to Clause 2.4, in the event of a Public Offer
Under-Subscription so that the Public Offer Underwriters are obliged
to apply for or procure applicants for the Public Offer Shares
representing the shortfall, HSBC on behalf of the Selling
Shareholder will, subject to receiving notification from the
Receiving Banker and Sub-Registrars pursuant to Clauses 3.1.3 and
3.4.4, cause the Receiving Banker as soon as possible and in any
event by 9:00 p.m. on the Acceptance Date (such Business Day being
hereinafter referred to as the "Shortfall Notification Date") to
notify the Public Offer Underwriters of the number of Public Offer
Shares falling to be taken up pursuant to Clause 3.4.2 (subject to
adjustment taking into account applications rejected due to
application cheques which were dishonoured upon first presentation
(the "BOUNCED CHEQUES")). HSBC on behalf of the Selling Shareholder
will, subject to receiving notification from the Receiving Banker
and Sub-Registrars pursuant to Clauses 3.1.3 and 3.4.4, cause the
Receiving Banker as soon as possible and in any event by 5:00 p.m.
on the second Business Day following the Acceptance Date to notify
the Public Offer Underwriters of the number of Public Offer Shares
falling to be taken up pursuant to Clause 3.4.2, having taken into
account the Bounced Cheques. If there is no Public Offer
Under-Subscription, then the obligations of the Public Offer
Underwriters in relation to the Public Offer pursuant to this Clause
3.4 shall cease.
3.4.6 PUBLIC OFFER UNDERWRITERS' PURCHASE OBLIGATIONS
As soon as practicable, and in any event not later than 2:00 p.m. on
the third Business Day which falls immediately after the Shortfall
Notification Date and subject to the Conditions having been
fulfilled or waived by HSBC (on behalf of the Public Offer
Underwriters) pursuant to Clause 2.1, each of the Public Offer
Underwriters will:
(i) deliver to HSBC duly completed Application Form(s) for such
number of Public Offer Shares as fall to be taken up by it
pursuant to Clause 3.4.2 specifying the names and addresses of
the applicants and the number of Public Offer Shares to be
allocated to each such applicant; and
(ii) pay, or procure to be paid, to the Nominee the aggregate
amount payable on application in respect of the Offer Price
for such Public Offer Shares as fall to be taken up by it
pursuant to Clause 3.4.2 (which shall include all
18
amounts on account of Brokerage, Fee and Levies in accordance
with the terms of the Public Offer),
and the Selling Shareholder will, as soon as practicable after such
payment and in no event later than 8:30 a.m. on the fourth Business
Day after the Shortfall Notification Date, duly transfer to the said
applicants the Public Offer Shares to be taken up as aforesaid and
procure the Sub-Registrars to duly issue and deliver the share
certificates in relation to such Public Offer Shares, in each case
on the basis set out in Clause 3.3.
3.4.7 HSBC'S OPTION
If a Public Offer Under-Subscription shall occur, HSBC shall have
the right (but shall not be obliged) to apply or procure
applications for (subject to and in accordance with this Agreement)
all or any of the Public Offer Shares which any Public Offer
Underwriter is required to apply or procure applications for
pursuant to Clause 3.4.2. Any application submitted or procured to
be submitted by HSBC pursuant to this Clause 3.4.7 in respect of
which payment is made in accordance with Clause 3.4.6, specifying
the relevant Public Offer Underwriter whose obligations HSBC is
thereby satisfying, shall satisfy pro tanto the obligation of the
relevant Public Offer Underwriter under this Clause 3.4 and shall
not affect any agreement or arrangement between the Public Offer
Underwriters regarding the payment of underwriting commission.
3.5 DEFAULT OF A PUBLIC OFFER UNDERWRITER
Subject to the provisions of the Agreement Between Public Offer
Underwriters (which shall not be binding on or confer any rights upon any
persons other than the parties thereto), none of HSBC or any of the Public
Offer Underwriters will be liable for any failure on the part of any of
the other Public Offer Underwriters to perform any of such other Public
Offer Underwriter's obligations under this Agreement. Notwithstanding the
foregoing, each of HSBC and the Public Offer Underwriters shall be
entitled to enforce any or all of its rights under this Agreement either
alone or jointly with any or all of the other Public Offer Underwriters.
3.6 PAYMENT OBLIGATIONS RELATING TO THE PUBLIC OFFER
3.6.1 PAYMENT TO THE SELLING SHAREHOLDER
The Public Offer Application Moneys held by the Nominee will, in
accordance with the provisions of the Receiving Banker Agreement and
subject to Clauses 3.6.2, 3.6.3 and 3.6.4, be paid over to the
Selling Shareholder through Nam Tai Group Management Limited in Hong
Kong dollars by 9:30 a.m. on the Listing Date by crediting the
Designated Bank Account (as defined in this Clause 3.6.1), upon the
Nominee receiving written confirmation from HSBC in accordance with
the provisions of the Receiving Banker Agreement that, inter alia,
the Conditions have been fulfilled and that the Sub-Registrars has
despatched valid share certificates in the names of successful
applicants or HKSCC Nominees Limited (as the case may be) for the
Public Offer Shares provided that the Nominee will, in accordance
with the provisions of the Receiving Banker Agreement, deduct from
the amount so payable to the Selling Shareholder and pay to HSBC
(where a person other than HSBC is entitled to any amount so paid,
as agent on behalf of such person) or to such person as HSBC may
instruct:
19
(i) the underwriting commission, the sponsorship and financial
advisory fee and other fees and expenses payable under Clauses
4.1 and 4.2; and
(ii) the whole or such portion of the fees, costs and expenses
which remain payable by the Selling Shareholder under Clauses
4.3 and 4.4 as HSBC may calculate and direct being an amount
representing HSBC's estimate of all such fees, costs and
expenses provided that:
(a) without prejudice to the Selling Shareholder's
obligation under Clauses 4.3 and 4.4, any actual payment
by HSBC to such person who is entitled to payment under
Clauses 4.3 and 4.4 shall not be made without prior
consent of the Selling Shareholder;
(b) if the amount deducted pursuant to this paragraph (ii)
is insufficient for purposes of covering such fees,
costs and expenses, the Selling Shareholder shall pay to
HSBC (where a person other than HSBC is entitled to any
amount so paid, as agent on behalf of such person)
and/or to such person as HSBC may instruct an amount
equal to such shortfall forthwith upon receipt of demand
for the same from HSBC and, in any event, no later than
five Business Days from the date of such demand); and
(c) HSBC shall within three months of the date of this
Agreement pay to the Selling Shareholder through Nam Tai
Group Management Limited by crediting the Designated
Bank Account an amount equal to the balance of the
amount of fees, costs and expenses deducted under this
paragraph (ii), if any, after payment by HSBC on behalf
of the Selling Shareholder of the aforementioned fees,
costs and expenses, and
such payment of the Public Offer Application Moneys (subject to the
deductions to be made pursuant to this Clause 3.6.1) into the
Designated Bank Account shall discharge the Public Offer
Underwriters of any further payment obligations with respect to the
Public Offer Shares.
For the purpose this Clause 3.6.1, "DESIGNATED BANK ACCOUNT" means
the following bank account of Nam Tai Group Management Limited, a
wholly owned subsidiary of the Selling Shareholder and incorporated
in Hong Kong:
Holder of the Bank Account: Nam Tai Group Management Limited
Bank Name: The Hongkong and Shanghai Banking Corporation Limited
Account Number: 500-815287-001.
3.6.2 PAYMENT OF BROKERAGE, FEE AND LEVIES
HSBC, on behalf of the Public Offer Underwriters, will arrange for
the payment by the Nominee to the persons entitled thereto of the
Brokerage, Fee and Levies in respect of Accepted Public Offer
Applications, such amounts to be paid out of the Public Offer
Application Moneys.
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3.6.3 PAYMENT OF TRADING FEE, TRANSACTION LEVY AND INVESTOR COMPENSATION
LEVY ON BEHALF OF THE SELLING SHAREHOLDER
HSBC, on behalf of the Selling Shareholder, will arrange for the
payment by the Nominee of the Trading Fee, the Transaction Levy and
the Investor Compensation Levy payable by the Selling Shareholder in
respect of Accepted Public Offer Applications to the Stock Exchange,
such amounts to be paid out of the Public Offer Application Moneys.
3.6.4 PAYMENT OF STAMP DUTY ON BEHALF OF THE SELLING SHAREHOLDER
HSBC, on behalf of the Selling Shareholder, will arrange for the
Nominee to transfer from the Public Offer Application Moneys such
amount of the stamp duty payable by the Selling Shareholder and the
purchasers of the Public Offer Shares in connection with the
transfer of the Public Offer Shares, for payment by HSBC to the
Inland Revenue Department of the Government of Hong Kong.
3.6.5 REFUND OF PUBLIC OFFER APPLICATION MONEYS
In accordance with the terms of the Receiving Banker Agreement and
the Sub-Registrars Agreement, the Nominee will pay, and the
Sub-Registrars will arrange for the distribution of cheques, to
applicants under the Public Offer who are entitled to receive any
refund of Public Offer Application Moneys in accordance with the
terms of the Public Offer Documents.
3.6.6 DISCHARGE FROM PUBLIC OFFER UNDERWRITER'S OBLIGATIONS
As soon as the Public Offer Shares comprising the Public Offer
Underwriting Commitment of a Public Offer Underwriter shall be
purchased and paid for by the Public Offer Underwriter and/or
purchasers procured by such Public Offer Underwriter and/or
otherwise pursuant to this Agreement, such Public Offer Underwriter
shall be discharged from all further liability under this Agreement
save in respect of Clauses 10.8 and 10.9 and any antecedent breaches
under this Agreement.
4 COSTS, EXPENSES, FEES AND COMMISSIONS
4.1 UNDERWRITING COMMISSIONS
In consideration of the services of the Public Offer Underwriters under
this Agreement, the Selling Shareholder will pay to HSBC (for itself and
on behalf of the Public Offer Underwriters) an underwriting commission at
the rate of 3.0% of the Reference Public Offer Amount, out of which the
Public Offer Underwriters will meet all (if any) sub-underwriting
commissions. For the avoidance of doubt, if the number of Public Offer
Shares is reduced as provided in Clause 2.4, the Public Offer Underwriters
shall not be entitled to the commission of 3.0% in relation to those
unsubscribed Shares which are reallocated to the International Placing
pursuant to Clause 2.4, and if the number of Public Offer Shares is
increased as provided in Clause 2.3, the Public Offer Underwriters shall
not be entitled to the commission of 3.0% in relation to those Shares
reallocated from the International Placing to the Public Offer pursuant to
Clause 2.3.
4.2 SPONSORSHIP AND FINANCIAL ADVISORY FEE AND OTHER FEES AND EXPENSES
The Selling Shareholder will further pay to HSBC a combined sponsorship
and financial advisory fee and such other fees and expenses of such
amounts and in such manner as
21
have been separately agreed between the Company (or any member of the
Group) and/or the Selling Shareholder (or any member of its group) and
HSBC.
4.3 PUBLIC OFFER UNDERWRITERS' EXPENSES
The Selling Shareholder shall also pay to HSBC on behalf of the Public
Offer Underwriters, all amount of costs, fees and expenses (including,
without limitation, the costs of the Public Offer Underwriters' legal
advisers and all travelling, telecommunications, postage and other
out-of-pocket expenses) incurred by the Public Offer Underwriters or any
of them or on their or its behalf under this Agreement or in connection
with the Public Offer.
4.4 EXPENSES TO BE BORNE BY THE SELLING SHAREHOLDER
The Selling Shareholder shall be responsible for all costs, fees and
expenses arising from, in connection with or incidental to the Global
Offering, which shall include but are not limited to the following:
(a) the stamp duty payable by the Selling Shareholder and purchasers of
the Public Offer Shares in connection with the transfer of the
Public Offer Shares in the Public Offer;
(b) any other capital duty, premium duty, tax, duty, levy and other
fees, charges and expenses payable (including any fines or
penalties), whether pursuant to any Law or otherwise in respect of
the transfer of the Offer Shares, the Global Offering and all
transactions contemplated thereunder, the execution and delivery of,
and the performance of any of the provisions under, the Underwriting
Documents save for any profit tax payable in Hong Kong by any of
HSBC or the Underwriters, arising out of any commission or fees
received by any of such parties pursuant to the Underwriting
Documents;
(c) fees and expenses of the Reporting Accountants;
(d) fees and expenses of the Receiving Banker;
(e) fees and expenses of the Property Valuers;
(f) fees and expenses of the Registrars and the Sub-Registrars;
(g) fees and expenses of all legal advisers;
(h) fees and expenses of the public relations consultants;
(i) fees and expenses of the translators;
(j) fees and expenses of other agents and advisers of the Company and
the Selling Shareholder;
(k) fees and expenses related to the application for listing of the
Shares on the Stock Exchange and the maintenance of a listing on
the Stock Exchange;
(l) fees and expenses related to the filing or registration of the
Public Offer Documents and any amendments and supplements thereto
with any relevant authority, including the Registrar of Companies in
Hong Kong;
(m) costs and expenses relating to the launching of the Global Offering
and the conducting of roadshows, syndicate analysts' briefing and
video and other presentations relating to the Global Offering;
22
(n) printing and advertising costs;
(o) the costs of preparing, printing, delivery and distribution
(including transportation, packaging and insurance) of documents of
title to the Offer Shares; and
(p) costs of despatch and distribution of the Offer Documents and all
amendments and supplements thereto in all relevant jurisdictions.
4.5 PAYMENT
All amounts due hereunder shall be due and payable on or before the
Listing Date and may be deducted from the Public Offer Application Moneys
pursuant to Clause 3.6.
5 REPRESENTATIONS, WARRANTIES AND UNDERTAKINGS
5.1 REPRESENTATIONS, WARRANTIES AND UNDERTAKINGS BY THE WARRANTORS
The Warrantors jointly and severally represent, warrant, agree and
undertake to the Public Offer Underwriters and each of them in the terms
set out in Part 1 of Schedule 7. The Company represents, warrants, agrees
and undertakes to the Public Offer Underwriters and each of them in the
terms set out in Part 2 of Schedule 7. The Selling Shareholder further
represents, warrants, agrees and undertakes to the Public Offer
Underwriters and each of them in the terms set out in Part 3 of Schedule
7. The Warrantors accept that each of the Public Offer Underwriters is
entering into this Agreement in reliance upon each of such
representations, warranties, agreements and undertakings.
5.2 RIGHTS IN RELATION TO THE WARRANTIES
5.2.1 Each of the Warranties shall be construed separately and shall not
be limited or restricted by reference to or inference from the terms
of any other of the Warranties or any other term of this Agreement.
5.2.2 The Warranties shall remain in full force and effect notwithstanding
completion of the Global Offering.
5.2.3 The Warranties are given on and as at the date of this Agreement
with respect to the facts and circumstances subsisting at the date
of this Agreement. In addition, the Warranties shall be deemed to be
given on and as at:
(i) the date on which the Public Offer Documents are registered by
the Registrar of Companies in Hong Kong as required by section
342C of the Companies Ordinance;
(ii) the Acceptance Date;
(iii) the Price Determination Date; and
(iv) immediately prior to 8:00 a.m. on the Force Majeure Expiry
Date,
in each case with reference to the facts and circumstances then
subsisting. For the avoidance of doubt, nothing in this Clause 5.2.3
shall affect the on-going nature of the Warranties.
5.2.4 Each of the Warrantors undertakes to give notice to each of the
Public Offer Underwriters forthwith of any matter or event coming to
their respective attention at any time on or prior to the last date
on which the Warranties are deemed to be
23
given pursuant to the provisions of Clause 5.2.3 which shows any of
the Warranties to be or to have been untrue or inaccurate or
breached.
5.2.5 If at any time on or prior to the date on which the Warranties are
deemed to be given pursuant to the provisions of Clause 5.2,3, by
reference to the facts and circumstances then subsisting, any matter
or event comes to the attention of any of the Warrantors which:
(i) would or might result in any of the Warranties, if repeated
immediately after the occurrence of such matter or event,
being untrue or inaccurate or breached; or
(ii) would or might render untrue, inaccurate or misleading any
statement, whether of fact or opinion, contained in the Public
Offer Documents, the Formal Notice or the Preliminary Offering
Circular or any of them if the same were issued immediately
after the occurrence of such matter or event; or
(iii) would or might result in the omission of any fact which is
material for disclosure or required by applicable Laws to be
disclosed in the Public Offer Documents, the Formal Notice or
the Preliminary Offering Circular or any of them (assuming
that the relevant documents were to be issued immediately
after occurrence of such matter or event); or
(iv) would or might result in any breach of the representations,
warranties or undertakings given by any of the Warrantors or
any circumstances giving rise to a claim under any of the
indemnities as contained in, or given pursuant to, this
Agreement,
such Warrantor shall forthwith notify and consult the Company (for
itself and on behalf of the Selling Shareholder) and HSBC (for
itself and on behalf of the other Public Offer Underwriters) and
shall take such steps as may be requested by HSBC (for itself and on
behalf of the other Public Offer Underwriters) to remedy the same.
5.2.6 If any matter or event referred to in Clause 5.2.5 shall have
occurred, nothing herein shall prejudice any rights that HSBC or any
of the Public Offer Underwriters may have in connection with the
occurrence of such matter or event, including without limitation its
rights under Clause 9.
5.2.7 Each of the Company and the Selling Shareholder shall not, and shall
procure that their respective Affiliates will not, and the Executive
Directors and the Selling Shareholder shall procure that the Company
will not:
(i) do or omit to do anything which may cause, and will use its
best efforts not to permit, any of the Warranties pursuant to
Clause 5.1 to be untrue or inaccurate or breached in any
respect at or prior to any time referred to in Clause 5.2.3
(assuming such Warranties to be repeated at such times with
reference to the facts and circumstances then subsisting); or
(ii) do or omit to do anything which could materially and adversely
affect the Global Offering.
24
5.2.8 For the purpose of this Clause 5:
(i) the representations, warranties, agreements and undertakings
shall remain in full force and effect notwithstanding the
completion of the purchase of the Offer Shares, the completion
of the Global Offering and all other matters and arrangements
referred to or contemplated by this Agreement; and
(ii) if an amendment or supplement to the Public Offer Documents,
the Formal Notice or the Preliminary Offering Circular or any
of them is published after the date hereof pursuant to Clause
6.1.1(x), representations, warranties, agreements and
undertakings relating to any such documents given pursuant to
this Clause 5 shall be deemed to be repeated on the date of
publication of such amendment or supplement and when so
repeated, representations, warranties, agreements and
undertakings relating to such documents shall be read and
construed subject to the provisions of this Agreement as if
the references therein to such documents means such documents
when read together with such amendment or supplement.
6 FURTHER UNDERTAKINGS
6.1 FURTHER UNDERTAKINGS BY THE COMPANY, THE SELLING SHAREHOLDER AND THE
EXECUTIVE DIRECTORS
6.1.1 The Company undertakes to each of the Public Offer Underwriters that
it will, and the Executive Directors and the Selling Shareholder
shall procure that the Company will:
(i) maintain a listing for the Shares on the Stock Exchange for at
least one year after the Conditions have been fulfilled and to
pay all fees and supply all further documents, information and
undertakings and publish all advertisements or other material
as may be necessary or advisable for such purpose, except
following a withdrawal of such listing which has been approved
by the relevant shareholders of the Company in accordance with
the Listing Rules or following an offer (within the meaning of
the Hong Kong Code on Takeovers and Mergers) for the Company
becoming unconditional;
(ii) procure that no connected persons (as defined in the Listing
Rules) of the Company will itself (or through a company
controlled by it) apply or purchase any Offer Shares either in
its own name or through nominees unless permitted to do so
under the Listing Rules, and if any such application therefor,
or after due and careful enquiries, it becomes aware of any
indication of interest therefor, has been made by such
persons, it shall forthwith notify HSBC (on behalf of the
Public Offer Underwriters);
(iii) procure that there shall be delivered to the Stock Exchange as
soon as practicable the declaration in the form set out in
Appendix 5, Form F of the Listing Rules;
(iv) procure that the audited accounts of the Company for its
financial year ending 31 December 2004 will be prepared on a
basis consistent with the accounting policies adopted for the
purposes of the financial statements
25
contained in the report of the Reporting Accountants set out
in Appendix I to the Prospectus;
(v) save as pursuant to any share option scheme of any member of
the Group, not without the prior written consent of HSBC (on
behalf of the Public Offer Underwriters) and unless in
compliance with the Listing Rules:
(a) at any time after the date of this Agreement up to and
including the date falling six months after the date on
which dealings in the Shares first commence on the Stock
Exchange (the "FIRST SIX-MONTH PERIOD"):
(I) offer, accept subscription for, pledge, issue,
sell, lend, mortgage, assign, charge, contract to
issue or sell, sell any option or contract to
purchase, purchase any option or contract to sell,
grant or agree to grant any option, right or
warrant to purchase or subscribe for, lend or
otherwise transfer or dispose of, either directly
or indirectly, conditionally or unconditionally,
any of the share capital or other securities of
the Company or any interest therein (including,
but not limited to, any securities that are
convertible into or exchangeable for, or that
represent the right to receive any such capital or
securities or any interest therein); or
(II) enter into any swap or other arrangement that
transfers to another, in whole or in part, any of
the economic consequences of ownership of any such
capital or securities or any interest therein; or
(III) enter into any transaction with the same economic
effect as any transaction described in paragraphs
(I) or (II) above;
(IV) agree or contract to, or publicly announce any
intention to enter into, any transaction described
in paragraphs (I), (II) or (III) above,
whether any such transaction described in paragraphs (I)
or (II) or (III) above is to be settled by delivery of
Shares or other securities, in cash or otherwise; and
(b) enter into any of the foregoing transactions in
paragraphs (a)(I), (II) and (III) above, or agree or
contract to or publicly announce any intention to enter
into any such transaction, such that the Selling
Shareholder would cease to be a controlling shareholder
(as defined in the Listing Rules) of the Company during
the six-month period immediately following the First
Six-Month Period (the "SECOND SIX-MONTH PERIOD");
(vi) not, at any time after the date of this Agreement up to and
including the date on which all of the Conditions are
fulfilled (or waived) in accordance with this Agreement, amend
or agree to amend the Articles of Association save as
requested by Stock Exchange;
26
(vii) until the date falling one year after the Listing Date,
without the prior written consent of HSBC, not enter into or
procure, or permit any member of the Group to enter into any
commitment or agreement or arrangement:
(a) of an unusual or onerous nature or outside its ordinary
course of business, whether or not that contract,
commitment or arrangement would constitute a material
contract for the purposes of the Prospectus; and
(b) which could materially and adversely affect the business
or affairs of the Company and the Group taken as a
whole;
(viii) until the date falling six months after the Listing Date:
(a) discuss with HSBC:
(I) any major new developments in its sphere of
activity which are not public knowledge which may,
by virtue of the effect of those developments on
its assets and liabilities or financial position
or on the general course of its business, lead to
substantial movement in the price of its listed
securities;
(II) any change in the Company's financial condition or
in the performance of its business or in the
Company's expectation of its performance which, if
made public, would be likely to lead to
substantial movement in the price of its listed
securities; and
(III) any proposals or circumstances which may lead to
any such developments or changes as described in
paragraphs (I) and (II) above,
(b) forward to HSBC for perusal in draft all documents to be
sent to shareholders and all press announcements to be
issued by the Company to the Stock Exchange during such
period;
(ix) until the date falling six months after the Listing Date,
furnish to HSBC copies of all reports or other communications
furnished to shareholders, and deliver to HSBC (i) as soon as
they are publicly available, copies of any reports and
financial statements furnished to or filed with the Stock
Exchange or any securities exchange on which any class of
securities of the Company may be listed, and (ii) such
additional information concerning the business and financial
condition of the Company publicly available as HSBC may from
time to time request (such financial statements to be on a
consolidated basis to the extent the accounts of the Company
and its subsidiaries are consolidated in reports furnished to
its shareholders generally or to the Stock Exchange);
(x) without prejudice to any other rights of any party hereto, if
at any time until the completion of the Global Offering:
(a) Clause 5.2.5 applies; or
(b) any event shall have occurred as a result of which the
Offer Documents or the Formal Notice or any of them (as
then amended or
27
supplemented pursuant to the provisions of this Clause
6.1.1(x)) would include an untrue statement of a
material fact or omit to state any material fact
necessary in order to make the statements therein, in
the light of the circumstances under which they were
made when such document was issued, not misleading; or
(c) if it shall be necessary to amend or supplement the
Offer Documents or the Formal Notice or any of them to
comply with applicable Law,
promptly notify HSBC of such event and, subject to the
provisions of this Clause 6.1.1(x), the Company (for itself
and on behalf of the Selling Shareholder) shall, at its own
expense, amend or supplement the Offer Documents, the Formal
Notice or any of them, as the case may be, and shall issue and
publish such other announcement, circular, document, material
or information and do such other act or thing as necessary or
advisable to correct such statement or omission or effect such
compliance with applicable Law or as may be requested by HSBC
and shall, without charge, supply HSBC or as such person(s) as
it shall direct with as many copies as HSBC may from time to
time request of the aforesaid documents, material or
information;
Except for the Offer Documents and the Formal Notice or except
as otherwise provided pursuant to the Underwriting Documents,
each of the Company and the Selling Shareholder undertakes
that it shall not, and each of the Executive Directors
undertakes to procure that the Company shall not, without the
prior written approval of HSBC (for itself and on behalf of
the Public Offer Underwriters), issue, publish, distribute or
otherwise make available any document (including any
prospectus or offering circular), announcement, material or
information in connection with the Public Offer (including any
supplement or amendment thereto).
The Company will advise HSBC promptly of any proposal to amend
or supplement the Offer Documents or the Formal Notice or any
of them, and will not effect such amendment or supplementation
without HSBC's consent (such consent not to be unreasonably
withheld or delayed);
(xi) during the period of one year after the Listing Date, refrain
from taking any action that could jeopardise the listed status
of the Shares on the Stock Exchange, provided however, that
this paragraph shall not prevent the Company from taking any
action for the delisting of the Shares so long as (a) the
Company complies in all respects with the Listing Rules and
all other applicable Laws, and (b) the requisite approval of
such action by the holders of the Shares is duly obtained;
(xii) for so long as the Shares are listed on the Stock Exchange and
during the period of one year after the Listing Date, file
with the Stock Exchange, the SFC and any other Governmental
Authority in Hong Kong and the Cayman Islands, such reports,
documents, agreements and other information which may from
time to time be required by applicable Laws to be so filed
because the Shares are listed on the Stock Exchange; and
(xiii) provide to HSBC (on behalf of the Public Offer Underwriters)
any such other resolutions, consents, authorities, documents,
opinions and
28
certificates which are relevant in the context of the Global
Offering owing to circumstances arising or events occurring
after the date of this Agreement, but on or before 8:00 a.m.
on the Force Majeure Expiry Date and as HSBC may require.
6.1.2 Each of the Company and the Selling Shareholder undertakes to each
of the Public Offer Underwriters that it will, and the Executive
Directors and the Selling Shareholder shall procure that the Company
will:
(i) comply in all respects with the terms and conditions of the
Global Offering as provided for in the Offer Documents and the
Underwriting Documents and,in particular, transfer the Public
Offer Shares to successful applicants under the Public Offer
and, if any of the Public Offer Shares falls to be taken up
pursuant to Clause 3.4.6, to the applicants under Clause
3.4.6(i);
(ii) comply in a timely manner with its obligations under the
requirements of the Stock Exchange in connection with the
Global Offering (including, without limitation, the Listing
Rules);
(iii) procure compliance with the obligations imposed upon it by the
Companies Ordinance, the Companies Law and the Listing Rules
in respect of or by reason of the matters contemplated by this
Agreement, including but without limitation:
(a) the making of all necessary registrations with the
Registrar of Companies in Hong Kong and the Registrar of
Companies in the Cayman Islands; and
(b) the making available for inspection at the offices of
Johnson Stokes & Master of the documents referred to in
Appendix VI to the Prospectus during the period referred
to therein; and
(iv) procure that the terms of the Registrars Agreement, the
Sub-Registrars Agreement and the Receiving Banker Agreement
shall not be amended without the prior written consent of
HSBC.
6.1.3 The undertakings in this Clause 6.1 shall remain in full force and
effect notwithstanding the completion of the Global Offering and all
matters contemplated in this Agreement.
6.2 RESTRICTIONS ON DEALINGS AND RELATED MATTERS
6.2.1 The Selling Shareholder agrees and undertakes that, save as pursuant
to the offer for sale of the Offer Shares under the Global Offering
or the Over-allotment Option or any stock lending arrangements
agreed between the Selling Shareholder and HSBC in connection with
the Global Offering, without the prior written consent of HSBC (on
behalf of the Public Offer Underwriters) and unless in compliance
with the Listing Rules:
(i) during the First Six-Month Period:
(a) save for using the Shares beneficially owned by it as
security (including a charge or a pledge) in favour of
an authorised institution (as defined in the Banking
Ordinance (Chapter 155 of the Laws of Hong Kong)) for a
bona fide commercial loan, it will not offer, pledge,
29
charge, sell, contract to sell, sell any option or
contract to purchase, purchase any option or contract to
sell, grant or agree to grant any option, right or
warrant to purchase or subscribe for, lend or otherwise
transfer or dispose of, either directly or indirectly,
conditionally or unconditionally, any share capital or
other securities of the Company or any interest therein
(including, but not limited to any securities that are
convertible into or exchangeable for, or that represent
the right to receive, any such capital or securities or
any interest therein); or
(b) enter into any swap or other arrangement that transfers
to another, in whole or in part, any of the economic
consequences of ownership of any such capital or
securities or any interest therein; or
(c) enter into any transaction with the same economic effect
as any transaction described in (a) or (b) above; or
(d) agree or contract to, or publicly announce any intention
to enter into, any transaction described in (a) or (b)
or (c) above,
whether any such transaction described in (a) or (b) or (c)
above is to be settled by delivery of such capital or
securities, in cash or otherwise; and
(ii) during the Second Six-Month Period, it will not enter into any
of the foregoing transactions in paragraphs (i)(a) or (b) or
(c) above or agree or contract to or publicly announce any
intention to enter into any such transactions if, immediately
following such transfer or disposal, the Selling Shareholder
will cease to be a controlling shareholder (as the term is
defined in the Listing Rules) of the Company; and
(iii) until the expiry of the Second Six-Month Period, in the event
that it enters into any such transactions or agrees or
contracts to, or publicly announces an intention to enter into
any such transactions, it will take all reasonable steps to
ensure that it will not create a disorderly or false market in
the securities of the Company.
6.2.2 Subject to Clause 6.2.1, the Selling Shareholder agrees and
undertakes that, if at any time after the date of this Agreement up
to and including the date falling twelve months from the Listing
Date, it shall (i) if and when it pledges, mortgages or charges any
securities or interests in the securities of the Company
beneficially owned by it, immediately inform the Company and HSBC in
writing of such pledge, mortgage or charge together with the number
of securities so pledged or mortgaged or charged; and (ii) if and
when it receives indications, either verbal or written, from any
pledgee or mortgagee or charges that any of the pledged, mortgaged
or charged securities or interests in the securities of the Company
will be disposed of, immediately inform the Company and HSBC in
writing of such indications. The Company agrees and undertakes that
upon receiving such information in writing from the Selling
Shareholder, it shall, as soon as practicable, notify the Stock
Exchange and in accordance with the requirements of the Listing
Rules or the Stock Exchange make a public disclosure in relation to
such information by way of press announcement.
30
6.2.3 Each of the Executive Directors and the Selling Shareholder agrees
and undertakes not to (whether itself or through any company
controlled by it) apply or subscribe for or purchase any Offer
Shares either in its own name or through nominees unless permitted
to do so under the Listing Rules, and if any such application has
been made or it has indicated an interest to acquire such Offer
Shares, it shall forthwith notify HSBC (on behalf of the Public
Offer Underwriters);
6.2.4 The Company agrees and undertakes that it will not, and the Selling
Shareholder and each of the Executive Directors undertakes to
procure that the Company will not, effect any purchase of Shares, or
agree to do so, which may reduce the holdings of Shares of persons
other than the directors of the Company, its substantial
shareholders or their respective associates (as defined in the
Listing Rules) to below 25% on or before the date falling six months
after the Listing Date without first having obtained the prior
written consent of HSBC (on behalf of the Public Offer
Underwriters).
6.2.5 The Warrantors will procure that none of the connected persons shall
be accepted as subscribers or purchasers of any Offer Shares either
in its own name or through nominees unless permitted to do so under
the Listing Rules and such subscriptions or purchases are disclosed
in the Prospectus.
6.3 OBLIGATIONS AND LIABILITY
6.3.1 The obligations of each of the Company, the Selling Shareholder, the
Executive Directors shall be binding on his, her or its personal
representatives and successors (as the case may be).
6.3.2 Any liability to the Public Offer Underwriters or any of them
hereunder may in whole or in part be released, compounded or
compromised and time or indulgence may be given by HSBC on behalf of
the Public Offer Underwriters or any of them as regards any person
under such liability without prejudicing the rights of any other
Public Offer Underwriter or the relevant Public Offer Underwriter's
other rights against such person or the relevant Public Offer
Underwriter's rights against any other person under the same or a
similar liability.
6.3.3 Subject to the provisions of the Agreement Between Public Offer
Underwriters (which shall not be binding on or confer any rights
upon any persons other than the parties thereto), for the avoidance
of doubt neither HSBC nor any of the Public Offer Underwriters shall
be responsible or liable for any breach of the provisions of this
Agreement by any of the Public Offer Underwriters (other than itself
in its capacity as a Public Offer Underwriter).
6.3.4 Save and except for any breach of any of its obligations under this
Agreement and/or any loss or damage arising out of any gross
negligence, wilful default or fraud on the part of HSBC or the
relevant Public Offer Underwriter, no claim shall be made against
HSBC or any of the Public Offer Underwriters or against any other of
the Indemnified Parties (such right of the Indemnified Parties being
held by the Public Offer Underwriters as trustee for the Indemnified
Parties) by any of the Warrantors (and the Warrantors shall procure
that none of its affiliates shall make any such claim), to recover
any damage, cost, charge or expense which any of the Warrantors may
suffer or incur by reason of or arising out of the carrying out by
HSBC or any of the Public Offer Underwriters of the work to be done
by any of them or the performance of their respective obligations
hereunder or otherwise in
31
connection with the Offer Documents, the Global Offering and any
associated transactions (whether in performance of its duties as
underwriters or otherwise). Specifically (but without prejudice to
the generality of the foregoing), none of HSBC or the Public Offer
Underwriters shall have any liability or responsibility whatsoever
for any alleged insufficiency of the Offer Price or any dealing
price of the Offer Shares or any announcements, documents,
materials, communications or information whatsoever made, given,
related or issued arising out of, in relation to or in connection
with the Company or the Global Offering (whether or not approved by
HSBC or any of the Public Offer Underwriters).
7 INDEMNITY
7.1 Each of the Warrantors (collectively, the "INDEMNIFYING PARTIES" and
individually, an "INDEMNIFYING PARTY") jointly and severally undertakes to
HSBC, the Public Offer Underwriters and each of them, for themselves and
on trust for the other Indemnified Parties (as hereinafter defined), to
indemnify and hold harmless HSBC and each of the Public Offer Underwriters
and each of their respective subsidiaries and Affiliates and each of their
respective representatives, partners, directors, officers, employees,
assignees and agents (collectively, the "INDEMNIFIED PARTIES" and
individually, an "INDEMNIFIED PARTY") (on an after-tax basis) against:
(i) all actions, suits, claims (whether or not any such claim involves
or results in any actions or proceedings), demands, investigations,
judgement, awards and proceedings, joint or several, from time to
time instituted, made or brought or threatened or alleged to be
instituted, made or brought against or otherwise involve, (together
the "ACTIONS") and
(ii) all losses, liabilities and damage suffered and all payments,
expenses (including legal expenses and taxes (including stamp duty
and any penalties and/or interest arising in respect of any taxes)),
costs and charges (including, without limitation, all payments,
expenses, costs or charges suffered, made or incurred arising out
of, in relation to or in connection with the investigation, dispute,
defence or settlement of or response to any such Actions or the
enforcement of any such settlement or any judgement obtained in
respect of any such Actions) (together, the "LOSSES") which may be
made or incurred or suffered by,
an Indemnified Party (with such amount of indemnity to be paid to HSBC or
the relevant Public Offer Underwriter to whom the Indemnified Party is
related to cover all the Actions against and Losses suffered, made or
incurred by such Indemnified Party) arising out of, in relation to or in
connection with:
(a) the performance by HSBC or any of the Public Offer Underwriters of
their respective obligations under this Agreement or the Offer
Documents or otherwise in connection with the Global Offering; or
(b) the issue, publication, distribution or making available of any of
the Offer Documents or the Formal Notice (including any amendments
or supplements thereto) in accordance with the terms of this
Agreement and/or any announcements, documents, materials,
communications or information whatsoever made, given, released or
issued arising out of, in relation to or in connection with the
Company or the Global Offering (whether or not approved by HSBC or
any of the Public Offer Underwriters); or
32
(c) the offer or transfer of the Offer Shares; or
(d) a breach or alleged breach on the part of any of the Indemnifying
Parties of any of the provisions of any of the Underwriting
Documents or an action or omission of an Indemnifying Party or any
of their respective subsidiaries, directors, officers or employees
resulting in a breach of any of the provisions of any of the
Underwriting Documents; or
(e) any of the Warranties being untrue, inaccurate or having been
breached or being alleged to be untrue, inaccurate or alleged to
have been breached; or
(f) any untrue statement or alleged untrue statement of a fact contained
in any Offer Documents, the Formal Notice or in any announcements,
documents, materials, communications or information whatsoever made,
given, released or issued arising out of, in relation to or in
connection with the Company or the Global Offering (whether or not
approved by HSBC (or any of the Public Offer Underwriters), or, in
each case, any supplement or amendment thereto, or any omission or
alleged omission to state therein a fact necessary in order to make
the statements therein, in light of the circumstances under which
they were made, not misleading, or any of the Offer Documents or the
Formal Notice, or such announcement, document, material,
communication or information or any such supplement or amendment
thereto not containing any information material in the context of
the Global Offering whether required by Law or not; or
(g) any breach or alleged breach of the Laws of any country or territory
resulting from the distribution of any of the Offer Documents, the
Formal Notice or any announcements, documents, materials,
communications or information whatsoever made, given, released or
issued arising out of, in relation to or in connection with the
Company or the Global Offering (whether or not approved by HSBC or
any of the Public Offer Underwriters) and/or any offer, sale or
distribution of the Shares, otherwise than in accordance with and on
the terms of those documents and the Underwriting Documents; or
(h) the Global Offering failing to comply with the requirements of the
Securities and Futures (Stock Exchange Listing) Rules (Chapter 571V
of the Laws of Hong Kong), the Listing Rules or any other applicable
Laws; or
(i) any statement in any of the Offer Documents, the Formal Notice or
any announcements, documents, materials, communications or
information whatsoever made, given, released or arising out of, in
relation to or in connection with the Company, the Selling
Shareholder or the Global Offering (whether or not approved by HSBC
or any of the Public Offer Underwriters) being or alleged to be
defamatory of any person; or
(j) any failure or alleged failure by any of the Directors to comply
with their respective obligations under the Listing Rules; or
(k) the breach or alleged breach by the Company, the Selling Shareholder
or other members of the Group of applicable Laws,
provided that the indemnity provided for in this Clause 7.1 shall not
apply in respect of an Indemnified Party to the extent where any such
Action made against, or any such Loss suffered by, such Indemnified Party
arises out of or in connection with fraud, gross negligence or wilful
default on the part of such Indemnified Party; and any settlement or
33
compromise of or consent to the entry of judgement with respect to any
Action or Loss by any of the Indemnified Parties shall not prejudice any
right, claim, action or demand any of the Indemnified Parties may have or
make against the Warrantors or any of them under this Clause 7.1 or
otherwise under this Agreement.
7.2 If any of the Warrantors becomes aware of any claim which may give rise to
a liability under the indemnity provided under Clause 7.1, such party
shall promptly give notice thereof to the other parties in writing.
7.3 Counsel to the Indemnified Parties shall be selected by HSBC. The Company
and/or the Selling Shareholder, as the case may be, may participate at its
own expense in the defence of any such Action, provided however, that
counsel to the Company and/or the Selling Shareholder shall not (except
with the consent of the Indemnified Parties) also be counsel to the
Indemnified Parties.
7.4 None of the Indemnifying Parties shall, without the prior written consent
of the Indemnified Parties, settle or compromise or consent to the entry
of any judgement with respect to any Action, commenced or threatened, or
any claim whatsoever in respect of which indemnification or contribution
could be sought under this Clause 7 (whether or not the Indemnified
Parties are actual or potential parties thereto).
7.5 Any settlement or compromise by any Indemnified Party in relation to any
claim shall be without prejudice to, and without (other than any
obligations imposed on it by Law) any accompanying obligation or duty to
mitigate the same in relation to, any claim, action or demand it may have
or make against any of the Indemnifying Parties under this Agreement. The
Indemnified Parties are not required to obtain consent from any of the
Indemnifying Parties with respect to such settlement or compromise. The
rights of the Indemnified Parties herein are in addition to any rights
that each Indemnified Party may have at Law or otherwise and the
obligations of the Indemnifying Parties herein shall be in addition to any
liability which the indemnifying Parties may otherwise have.
7.6 If an Indemnifying Party enters into any agreement or arrangement with any
adviser for the purpose of or in connection with the Global Offering, the
terms of which provide that the liability of the adviser to the
Indemnifying Party or any other person is excluded or limited in any
manner, and any of the Indemnified Parties may have joint and/or several
liability with such adviser to the Indemnifying Party or to any other
person arising out of the performance of its duties in connection with the
Global Offering, the Indemnifying Party shall:
7.6.1 not be entitled to recover any amount from any Indemnified Party
which, in the absence of such exclusion or limitation, the
Indemnified Party would have been entitled to recover from such
Indemnified Party; and
7.6.2 indemnify the Indemnified Parties in respect of any increased
liability to any third party which would not have arisen in the
absence of such exclusion or limitation; and
7.6.3 take such other action as the Indemnified Parties may require to
ensure that the Indemnified Parties are not prejudiced as a
consequence of such agreement or arrangement.
7.7 No claim shall be made against any Indemnified Party by any Indemnifying
Party to recover any Losses incurred by the Indemnifying Party in
connection with or arising out of the services rendered or duties
performance by the Indemnified Party under this
34
Agreement or otherwise in connection with the Global Offering and the
application for the listing of, and permission to deal in, the Shares on
the Stock Exchange unless and to the extent that they are finally
judicially determined by a court of competent jurisdiction to have arisen
primarily as a result of fraud, gross negligence or wilful default(1) of
the relevant Indemnified Party.
7.8 For the avoidance of doubt, the indemnity under this Clause 7 shall cover
all costs, charges and expenses which any Indemnified Party may incur or
pay in disputing, settling or compromising any Action to which the
indemnity may relate and in establishing its right to indemnification
under this Clause 7.
7.9 All amounts subject to indemnity under this Clause 7 shall be paid by the
Indemnifying Party as and when they are incurred within 10 Business Days
of a written notice demanding payment being given to the relevant
Indemnifying Party by or on behalf of an Indemnified Party.
7.10 This Clause 7 shall remain in full force and effect notwithstanding the
completion of the Global Offering in accordance with the terms of this
Agreement or the termination of this Agreement.
8 CONTRIBUTION
8.1 If for any reason the undertaking to pay in Clause 7 is unavailable or
insufficient to indemnify and hold harmless an Indemnified Party in
respect of any Action or Loss referred to therein, then each Indemnifying
Party, in lieu of its obligations under Clause 7, shall contribute to the
amount paid or payable by such Indemnifying Party as a result of such
Action or Loss:
8.1.1 in such proportion as is appropriate to reflect the relative
benefits received by the Company and the Selling Shareholder on the
one hand and the Public Offer Underwriters on the other from the
Public Offer; or
8.1.2 if the allocation provided by Clause 8.1.1 above is not permitted by
applicable Law, in such proportion as is appropriate to reflect not
only the relative benefits referred to in Clause 8.1.1 above but
also the relative fault of the Company and the Selling Shareholder
on the one hand and the Public Offer Underwriters on the other in
connection with the statements or omissions that resulted in such
Action or Loss, as well as any other relevant equitable
considerations.
8.2 The relative benefits received by the Company and the Selling Shareholder
on the one hand and the Public Offer Underwriters on the other shall be
deemed to be in the same respective proportions as the net proceeds from
the Public Offer (before deducting expenses) received by the Company and
the Selling Shareholder bear to the total commissions received by the
Public Offer Underwriters, as set forth in Clause 4.1.
8.3 The relative fault of the Company and the Selling Shareholder on the one
hand and the Public Offer Underwriters on the other shall be determined by
reference to, among other things, whether the untrue or alleged untrue
statement of a fact or the omission or alleged omission to state a fact
relates to information supplied by the Company or the Selling Shareholder
on the one hand or by the Public Offer Underwriters on the other and the
35
parties' relative intent, knowledge, access to information and opportunity
to correct or prevent such statement or omission.
8.4 The parties hereto agree that it would not be just and equitable if
contribution pursuant to this Clause 8 were determined by pro rata
allocation (even if the Public Offer Underwriters were treated as one
entity for such purposes) or by any other method of allocation that does
not take account of the equitable considerations referred to in this
Clause 8. In no event shall a Public Offer Underwriter be required to
contribute any amount in excess of the amount by which the total
commissions received by such Public Offer Underwriter with respect to the
Public Offer exceeds the amount of any Losses that such Public Offer
Underwriter has otherwise been required to pay by reason of such untrue or
alleged untrue statement or omission or alleged omission. No person guilty
of fraudulent misrepresentation (with the meaning of Section 11 (f) of the
US Securities Act) shall be entitled to contribution from any person who
was not guilty of such fraudulent misrepresentation. The Public Offer
Underwriters' obligations to contribute pursuant to this Clause 8 are
several in proportion to their respective purchase or subscription
obligations hereunder (and not joint or joint and several).
8.5 The indemnity and contribution agreements contained in this Clause 8 are
not exclusive and shall not limit any rights or remedies which may
otherwise be available to any Indemnified Party at Law or in equity.
9 TERMINATION IN EXCEPTIONAL CIRCUMSTANCES
9.1 If, at any time prior to 8:00 a,m. on the Force Majeure Expiry Date:
9.1.1 there has been a breach of any of the Warranties or there has been a
breach by the Company or the Selling Shareholder of any of the
provisions of this Agreement; or
9.1.2 any matter has arisen or has been discovered which would, had it
arisen immediately before the Prospectus Date, not having been
disclosed in the Prospectus, constitute an omission therefrom; or
9.1.3 any statement contained in the Prospectus has become or been
discovered to be untrue, incorrect or misleading in any respect; or
9.1.4 there shall have occurred any event, act or omission which gives or
is likely to give rise to any liability of any of the Company or the
Selling Shareholder pursuant to the indemnities referred to in
Clause 7; or
9.1.5 there shall have been any adverse change or prospective adverse
change in the business or the financial or trading position of any
member of the Group; or
9.1.6 there shall have developed, occurred, happened or come into effect
or series of events, matters or circumstances concerning or relating
to:
(i) any change in, or any event or series of events likely to
result in any change in, local, national or international
financial, political, economic, military, industrial, fiscal,
regulatory, currency or market conditions or equity securities
or stock or other financial market conditions or any monetary
or trading settlement system (including, without limitation,
any change in the system under which the value of the Hong
Kong currency is linked to that of
36
the United States) in Hong Kong, the Cayman Islands, the US,
the United Kingdom, Japan or the PRC; or
(ii) any new Law or change in existing Laws or any change in the
interpretation or application thereof by any court or other
competent authority in Hong Kong, the Cayman Islands, the US,
the United Kingdom, Japan or the PRC; or
(iii) any event of force majeure affecting Hong Kong, the Cayman
Islands, the US, the United Kingdom, Japan or the PRC
including, without limiting the generality thereof, any act of
God, war, outbreak or escalation of hostilities (whether or
not war is declared) or act of terrorism, or declaration of a
national or international emergency or war, riot, public
disorder, civil commotion, economic sanctions, fire, flood,
explosion, epidemic, outbreak of an infectious disease,
calamity, crisis, strike or lock-out (whether or not covered
by insurance); or
(iv) the imposition of any moratorium, suspension or restriction on
trading in securities generally on the Stock Exchange or the
New York Stock Exchange or any suspension of trading of any of
the securities of the Company on any exchange or
over-the-counter market or any major disruption of any
securities settlement or clearing services in the US or Hong
Kong or on commercial banking activities in Hong Kong or New
York, due to exceptional financial circumstances or otherwise;
or
(v) a change or development involving a prospective change in
taxation or exchange control (or the implementation of any
exchange control) in Hong Kong, the Cayman Islands, the US or
the PRC,
which, in the sole opinion of HSBC (for itself and on behalf of the
Public Offer Underwriters):
(i) is or will be, or is likely to be, materially adverse to the
general affairs, management, business, financial, trading or
other condition or prospects of the Group or to any present or
prospective shareholder of the Company in its capacity as
such; or
(ii) has or will have or is likely to have a material adverse
impact on the success of the Global Offering or the level of
Offer Shares applied for or accepted or purchased or the
distribution of the Offer Shares or dealings in the Shares in
the secondary market; or
(iii) makes it impracticable, inadvisable or inexpedient to proceed
with the Public Offer and/or the International Placing on the
terms and in the manner contemplated in the Offer Documents,
then HSBC, in its sole and absolute discretion, may, on behalf of the
Public Offer Underwriters, upon giving notice to the Company and the
Selling Shareholder made pursuant to the provisions of Clause 10.16 on or
prior to 8:00 a.m. on the Force Majeure Expiry Date (with a copy of such
notice to each of the Selling Shareholder, the Executive Directors and the
other Public Offer Underwriters), terminate this Agreement with immediate
effect.
9.2 Upon the termination of this Agreement pursuant to the provisions of
Clauses 9.1 or 2.1:
37
9.2.1 each of the parties hereto shall cease to have any rights or
obligations under this Agreement and no party to this Agreement
shall be under any liability to any other party in respect of this
Agreement and no party have any claim against any other party to
this Agreement for costs, damages, compensation or otherwise, save
in respect of the provisions of this Clause 9 and Clauses 7, 8 and
10, any antecedent breaches under this Agreement and any rights or
obligations which may have accrued under this Agreement prior to
such termination; and
9.2.2 the Selling Shareholder shall pay to HSBC all fees, costs and
expenses set out in Clauses 4.2, 4.3, and 4.4 as soon as
practicable and in any event within 10 Business Days from the date
of receipt of written, demand for payment of the same; and
9.2.3 the Selling Shareholder shall refund forthwith all payments made by
the Public Offer Underwriters or any of them pursuant to Clause
3.4.6 (to the extent received) and/or by the successful applicants
under valid Applications (in the latter case, the Company and the
Selling Shareholder shall procure that the Sub-Registrars and the
Nominee despatch refund cheques to all applicants under the Public
Offer in accordance with the Sub-Registrars Agreement and the
Receiving Banker Agreement).
10 GENERAL PROVISIONS
10.1 RELEASE
Any liability to any party under this Agreement may in whole or in part be
released, compounded or compromised, and time or indulgence may be given,
by that party (and, where any liability is owed to any Public Offer
Underwriters, by HSBC on behalf of any or all of the Public Offer
Underwriters) in its absolute discretion as regards any person under such
liability without in any way prejudicing or affecting that party's rights
against any other person under the same or a similar liability, whether
joint and several or otherwise.
10.2 REMEDIES AND WAIVERS
10.2.1 No failure or delay by any party hereto in exercising any right or
remedy provided by Law under or pursuant to this Agreement shall
impair such right or remedy or operate or be construed as a waiver
or variation of it or preclude its exercise at any subsequent time
and no single or partial exercise of any such right or remedy shall
preclude any other or further exercise of it or the exercise of any
other right or remedy.
10.2.2 The rights, powers and remedies provided in this Agreement are
cumulative and not exclusive of any rights, powers and remedies
(whether provided by Law or otherwise.
10.3 SUCCESSORS AND ASSIGNMENT
10.3.1 This Agreement shall be binding upon, and inure solely to the
benefit of the parties hereto and their respective heirs,
executors, administrators, successors and permitted assigns, and no
other person shall acquire or have any right under or by virtue of
this Agreement.
10.3.2 Each of HSBC and the Public Offer Underwriters may assign or
transfer all or any part of the benefits of, or interest or right
in or under this Agreement.
38
10.3.3 Save as provided in Clause 10.3.2, no party hereto may assign or
transfer all or any part of the benefits of, or interest or right
in or under this Agreement.
10.3.4 Obligations under this Agreement shall not be assignable.
10.4 FURTHER ASSURANCE
Each of the parties hereto undertakes with the other parties hereto that
it shall execute and perform and procure that there are executed and
performed such further documents and acts as the other parties hereto may
reasonably require to give effect to the provisions of this Agreement.
10,5 Entire agreement and variation
10.5.1 Save as otherwise agreed by the relevant parties, this Agreement,
together with any document referred to hefein as being in the
agreed form, constitutes the entire agreement between the Company,
the Selling Shareholder, the Executive Directors, HSBC and the
Public Offer Underwriters relating to the underwriting of the
Public Offer to the exclusion of any terms implied by Law which may
be excluded by contract. Save as otherwise agreed by the relevant
parties, this Agreement supersedes all previous agreements or
understandings relating to the underwriting of the Public Offer
which shall cease to have any further force or effect and no party
hereto has entered into this Agreement in reliance upon any
representation, warranty, agreement or undertaking which is not set
out or referred to in this Agreement.
10.5.2 No party shall have any right of action (except in the case of
fraud) against any other party to this Agreement arising out of or
in connection with any representation, warranty, agreement or
undertaking which is not set out in this Agreement except to the
extent such representation, warranty, agreement or undertaking is
repeated in this Agreement or the other documents or agreements
referred to herein which are incorporated by reference in this
Agreement.
10.5.3 No variation of this Agreement shall be valid unless it is in
writing and signed by or on behalf of each of the parties hereto.
The expression "VARIATION" shall include any variation, supplement,
deletion or replacement however effected.
10.6 TIME OF ESSENCE
Any time, date or period referred to in this Agreement may be extended by
mutual written agreement between the Company (for itself and for and on
behalf of the Selling Shareholder and the Executive Directors) and HSBC
(for itself and for and on behalf of the Public Offer Underwriters), but
as regards any time, date or period originally fixed or any time, date or
period so extended as aforesaid, time shall be of the essence.
10.7 ANNOUNCEMENTS
10.7.1 Subject to Clause 10.7.2, no announcement or public communication
concerning this Agreement or the subject matter hereof shall be
made by any of the parties hereto (and each party shall procure
that their respective directors, officers and agents shall comply
with the restrictions of this Clause 10.7) without the prior
written approval of HSBC.
39
10.7.2 Any party hereto may make an announcement or public communication
concerning this Agreement, the subject matter hereof or any
ancillary matter hereto if and to the extent:
(i) required by Law; or
(ii) required by any Governmental Authority to which such party
is subject or submits, wherever situated, including, without
limitation, the Stock Exchange and the SFC whether or not
the requirement has the force of Law,
provided that in such case, the relevant party shall first consult
with HSBC in so far as it is reasonably practicable to do so.
10.8 CONFIDENTIALITY
10.8.1 Subject to Clause 10.8.2, each party hereto shall, and shall
procure that their respective directors, officers and agents will,
treat as strictly confidential all information received or obtained
as a result of entering into or performing this Agreement which
relates to:
(i) the provisions of this Agreement;
(ii) the negotiations relating to this Agreement;
(iii) the subject matter of this Agreement; or
(iv) the other parties.
10.8.2 Any party hereto may disclose, or permit its directors, officers
and agents to disclose, information which would otherwise be
confidential if and to the extent:
(i) required by Law;
(ii) required by any Governmental Authority to which such party
is subject or submits, wherever situated, including, without
limitation, the Stock Exchange and the SFC whether or not
the requirement for information has the force of Law;
(iii) required to vest the full benefit of this Agreement in such
party;
(iv) disclosed to the professional advisers and auditors of such
party under a duty of confidentiality;
(v) the information has come into the public domain through no
fault of such party;
(vi) the information becomes available to such party on a
non-confidential basis from a person not known by such party
to be bound by a confidentiality agreement with any of the
other parties hereto or to be otherwise prohibited from
transmitting the information;
(vii) the other parties have given prior written approval to the
disclosure, such approval not to be unreasonably withheld or
delayed; or
(viii) (where the disclosure is otherwise than by HSBC or its
directors, officers or agents) HSBC has given prior written
approval to the disclosure.
40
provided that in relation to (i), (ii) and (iii) above, such party
shall first consult with HSBC prior to making such disclosure.
10.9 RIGHTS OF CONTRIBUTION
The Selling Shareholder and the Executive Directors hereby irrevocably and
unconditionally:
10.9.1 (until the Underwriters' claims have become fully satisfied) waives
any right of contribution or recovery or any claim, demand or
action it may have or be entitled to take against the Company as a
result of any Action made or taken against it/him, whether alone
or jointly with the Company, as the case may be, in consequence of
its/his entering into this Agreement or otherwise with respect to
any act or matter relating to the Global Offering; and
10.9.2 acknowledges and agrees that the Company shall have no liability to
it whatsoever under the provisions of this Agreement or otherwise
in respect of any act or matter relating to the Global Offering.
10.10 INVALIDITY
If at any time any provision of this Agreement is or becomes illegal,
invalid or unenforceable in any respect under the Law of any jurisdiction,
that shall not affect or impair:
10.10.1 the legality, validity or enforceability in that jurisdiction of
any other provision of this Agreement; or
10.10.2 the legality, validity or enforceability under the Law of any
other jurisdiction of that or any other provision of this
Agreement.
10.11 COUNTERPARTS
This Agreement may be executed in any number of counterparts and by the
parties hereto on separate counterparts, but shall not be so effective
until each party has executed at least one counterpart. Each counterpart
each of which when so executed and delivered shall be an original, but all
of which together shall constitute one and the same instrument.
10.12 GOVERNING LAW
This Agreement shall be governed by and construed in accordance with the
laws of Hong Kong.
10.13 DISPUTE RESOLUTION
10.13.1 The parties hereto unconditionally and irrevocably agree that the
courts of Hong Kong shall have non-exclusive jurisdiction to
settle any disputes or differences (including claims for
set-off and counterclaims) arising out of or in connection
with this Agreement, including any dispute regarding the
validity or existence of this Agreement (each a "Dispute").
Each of the parties submits to the non-exclusive jurisdiction
of the Hong Kong courts in connection therewith and
unconditionally and irrevocably waives any objection which it
may have now or hereafter to the laying of any such proceeding
in the Hong Kong courts including any right to invoke any
claim that such proceeding have been brought in an inconvenient
forum.
10.13.2 The submission to jurisdiction pursuant to Clause 10.13.1 shall
not (and shall not be construed so as to) limit the right of any
of the parties to commence any
41
proceeding against any other party in whatsoever jurisdictions shall
to it seem fit nor shall the taking of any proceeding in any one or
more jurisdictions preclude the taking of any proceeding in any
other jurisdiction, whether concurrently or not.
10.13.3 Notwithstanding Clause 10.13.1, each of the parties hereto
unconditionally and irrevocably agrees that each of HSBC and/or the
Public Offer Underwriters shall have the option to refer any Dispute
to be finally resolved by arbitration in accordance with this Clause
10.13.3. Upon written notice by HSBC and/or the Public Offer
Underwriters pursuant to this Clause 10.13.3, such Dispute shall be
referred to and finally resolved by arbitration in accordance with
the UNCITRAL Arbitration Rules (the "RULES") as in force from time
to time and as may be amended by the rest of this Clause 10.13.
There shall be three arbitrators. The appointing authority shall be
the Hong Kong International Arbitration Centre ("HKIAC").
Where there are multiple parties, whether as claimant or as
respondent, the multiple claimants, jointly, shall appoint a
claimants-appointed arbitrator, and the multiple respondents,
jointly, shall appoint a respondents-appointed arbitrator for the
purpose of Article 7(1) of the Rules. The claimants-appointed
arbitrator and the respondents-appointed arbitrator shall then
choose the third arbitrator who will act as chairman of the arbitral
tribunal.
The seat of arbitration shall be Hong Kong, and the arbitration
shall be administered by HKIAC.
The governing law of the arbitration proceedings shall be the laws
of Hong Kong.
The language to be used in the arbitral proceedings shall be
English.
By agreeing to arbitration pursuant to this Clause 10.13.3, the
parties hereto irrevocably waive their right to any form of appeal,
review or recourse to any state court or other judicial authority,
insofar as such waiver may be validly made and to the fullest extent
permitted by applicable Laws.
The award shall be given by a majority decision. If there be no
majority, the award shall be made by the chairman of the arbitral
tribunal alone.
10.13.4 Without prejudice to the provisions of Clause 10.13.5 or Clause
10.13.6, each of the parties unconditionally and irrevocably agrees
that any writ, judgement or other notice of process shall, to the
fullest extent permitted by applicable Laws, be validly and
effectively served on it if delivered to its address referred to in
this agreement and marked for the attention of the person referred
to in that Clause or to such other person or address in Hong Kong as
may be notified by the relevant party (as the case may be) to the
other parties hereto pursuant to the provisions of this agreement.
10.13.5 The Selling Shareholder irrevocably appoints Mr. Jackie Wah of c/o
15th Floor, China Merchants Tower, Shun Tak Centre, 168-200
Connaught Road Central, Hong Kong as its authorised agent for the
service of process in Hong Kong in connection with this Agreement.
Service of process upon Mr. Jackie Wah at the above address shall be
deemed, for all purposes, to be due and effective service, and shall
be deemed completed whether or not forwarded to or received by any
such appointer. If for any reason such agent shall cease to be the
Selling
42
Shareholder's agent for the service of process, the Selling
Shareholder shall forthwith appoint a new agent for the service of
process in Hong Kong acceptable to HSBC and deliver to each of the
other parties hereto a copy of the new agent's acceptance of that
appointment within [14] days, failing which HSBC shall be entitled
to appoint such new agent for and on behalf of the Selling
Shareholder and such appointment shall be effective upon the giving
notice of such appointment to the Selling Shareholder. Nothing in
this Agreement shall affect the right to serve process in any other
manner permitted by Law.]
10.13.6 Where proceedings are commenced by any party in any jurisdiction
other than Hong Kong pursuant to Clause 10.13.2, upon being given
notice of such proceedings in writing, the party against whom such
proceedings have been brought shall immediately appoint an agent to
accept service of process in that jurisdiction and shall give notice
to the other party, as the case may be, of the details and address
for service of such agent.
10.14 IMMUNITY
To the extent that any party hereto may in any jurisdiction claim for
itself or its assets immunity from suit, execution, attachment (whether in
aid of execution, before judgement or otherwise) or other legal process or
to the extent that in any such jurisdiction there may be attributed to
itself or its assets such immunity (whether or not claimed), such party
hereby irrevocably agrees not to claim and irrevocably waives such
immunity to the full extent permitted by applicable Laws.
10.15 JUDGEMENT CURRENCY INDEMNITY
The obligation of any party (the "PAYING PARTY") in respect of any sum due
to any other party shall, notwithstanding any judgement in a currency
other than Hong Kong dollars, not be discharged until the first Business
Day, following receipt by the party to receive the payment (the "RECEIVING
PARTY") (as the case may be) of any sum adjudged to be so due in such
other currency, on which (and only to the extent that) the receiving party
(as the case may be) may in accordance with normal banking procedures
purchase Hong Kong dollars with such other currency. If the Hong Kong
dollars so purchased are less than the sum originally due to such party
(as the case may be) hereunder, the paying party agree, as a separate
obligation and notwithstanding any such judgement, to indemnify the
receiving party (as the case may be) against such loss. If the Hong Kong
dollars so purchased are greater than the sum originally due to the
receiving party (as the case may be) hereunder, the receiving party (as
the case may be) agrees to pay to the paying party an amount equal to the
excess of the dollars so purchased over the sum originally due to it
hereunder.
10.16 NOTICES
10.16.1 Any notice or other communication given or made under or in
connection with the matters contemplated by this Agreement shall
be in writing and shall be in the English language.
10.16.2 Any such notice or other communication shall be addressed as
provided in Clause 10.16.3 and, if so addressed, shall be deemed
to have been duly given or made as follows:
(i) if sent by personal delivery, upon delivery at the address of
the relevant party;
43
(ii) if sent by post, on the third Business Day after the date of
posting;
(iii) if sent by facsimile, on receipt of confirmation of
transmission.
10.16.3 The relevant addresses and facsimile numbers of each party hereto
for the purposes of this Agreement, subject to Clause 10,16.4, are:
NAME OF PARTY ADDRESS FACSIMILE NO.
Nam Tai Electronic & Electrical 15th Floor, China Merchants (852) 2263 1223
Products Limited Tower
Shun Tak Centre
Nos. 168-200 Connaught Road
Central
Hong Kong
Attention: Mr. Joseph Hsu 15th Floor, China Merchants
Tower
Shun Tak Centre
Nos.168-200 Connaught Road
Central
Hong Kong
Nam Tai Electronics, Inc. 15th Floor, China Merchants (852) 2263 1223
Tower
Shun Tak Centre
Nos.168-200 Connaught Road
Central
Hong Kong
Attention: Mr. Jackie Wan
Any of:
Wong Kuen Ling 15th Floor, China Merchants (852) 2263 1223
Tower
Shun Tak Centre
Nos.168-200 Connaught Road
Central
Hong Kong
Guy Jean Francois Bindels 15th Floor, China Merchants (852) 2263 1223
Tower
Shun Tak Centre
Nos.168-200 Connaught Road
Central
Hong Kong
44
The Hongkong and Shanghai The Hongkong and Shanghai (852) 2845 5654
Banking Corporation Limited Banking Corporation Limited
Level 15
1 Queen's Road Central
Hong Kong
Attention: Ronald Tham
The Public Offer Underwriters The Hongkong and Shanghai (852) 2845 5654
Banking Corporation Limited
c/o The Hongkong and Shanghai Level 15
Banking Corporation Limited 1 Queen's Road Central
Hong Kong
Attention: Ronald Tham
10.16.4 A party may notify the other parties to this Agreement of a change
to its relevant address or facsimile number for the purposes of
Clause 10.16.3, provided that such notification shall only be
effective on:
(i) the date specified in the notification as the date on which
the change is to take place; or
(ii) if no date is specified or the date specified is less than
five Business Days after the date on which notice is given,
the date falling five Business Days after notice of any such
change has been given.
10.16.5 All references in this Agreement to notices given to or received
from, consents or requests from or waivers by or consultations with
the Public Offer Underwriters shall be to notices given to or
received from, consents or requests from or waivers by or
consultations with HSBC, on behalf of the Public Offer Underwriters.
10.16.6 All references in this Agreement to notices given to or received
from, consents or requests from or waivers by or consultations with
the Executive Directors and/or the Selling Shareholder (as the case
may be) shall be to notices given to or received from, consents or
requests from or waivers by or consultations with the Company, on
behalf of the Executive Directors and/or the Selling Shareholder (as
the case may be).
10.17 SURVIVAL OF REPRESENTATIONS, WARRANTIES AND OBLIGATIONS
The respective indemnities, covenants, undertakings, agreements,
representations, warranties and other statements of the Company, the
Selling Shareholder and the Executive Directors or any of them as set
forth in this Agreement or made by or on behalf of any of them pursuant to
this Agreement, shall remain in full force and effect notwithstanding
completion of the Global Offering and regardless of any investigation (or
any statement as to the results thereof) made by or on behalf of any of
the Public Offer Underwriters, any of their respective Affiliates or any
of their respective representatives, directors, officers, agents,
employees, advisers. Clauses 4.2, 4.3, 7,8,10.7,10.8 and 10.9 shall
survive completion of the Global Offering.
45
10.18 NO WITHHOLDING BY THE COMPANY, THE SELLING SHAREHOLDER AND THE EXECUTIVE
DIRECTORS
All payments by or on behalf of each of the Company, the Selling
Shareholder and the Executive Directors under or in connection with this
Agreement (including deductions from the Public Offer Application Moneys)
shall be paid without set-off or counterclaim, and free and clear of and
without deduction or withholding for or on account of, any present or
future taxes, levies, imposts, funds, duties, fees, assessments or other
charges of whatever nature, imposed, levied, collected, withheld or
assessed by any Governmental Authority or any interest, penalties or
similar liabilities with respect thereto ("TAXES"). If any Taxes are
required, by law to be deducted or withheld in connection with any such
payment, the Company, the Selling Shareholder and the Executive Directors,
as the case may be, will increase the amount so paid so thai the amount of
such payment received by the payee is such amount as the payee would have
received if no such deduction or withholding had been made.
10.19 NO TAXATION IN THE HANDS OF HSBC, THE PUBLIC OFFER UNDERWRITERS AND THE
INDEMNIFIED PARTIES
If any sum payable under or in connection with this Agreement to HSBC or
any of the Public Offer Underwriters or any of the Indemnified Parties, or
any sum payable under Clause 4 (other than under Clauses 4.1 and 4.2),
shall be subject to Taxes in the hands of any of them or taken into
account as a receipt in computing the taxable profits or losses of any of
them, the sum payable shall be increased to such sum as will ensure that,
after payment of any Taxes which would not have arisen but for that sum,
HSBC or such Public Offer Underwriter or such Indemnified Party shall be
left with a sum equal to the sum that it would have received in the
absence of such Taxes.
IN WITNESS WHEREOF this Agreement has been entered into the day and year first
before written.
46
SCHEDULE 1
THE PUBLIC OFFER UNDERWRITERS
NAME ADDRESS
The Hongkong and Shanghai Banking Corporation Level 15
Limited 1 Queen's Road Central
Hong Kong
BNP Paribas Peregrine Capital Limited 36th Floor, Asia Pacific Finance Tower
3 Garden Road
Central
Hong Kong
Nomura International (Hong Kong) Limited 30th Floor, Two International Finance Centre
8 Finance Street
Hong Kong
Cazenove Asia Limited 5001, One Exchange Square
8 Connaught Place, Central
Hong Kong
DBS Asia Capital Limited 16th Floor, Man Yee Building
68 Des Voeux Road
Central
Hong Kong
VC CEF Capital Limited 38th Floor, The Centrium
60 Wyndham Street
Central
Hong Kong
BNP Paribas Peregrine Capital Limited 36th Floor, Asia Pacific Finance Tower
3 Garden Road Central
Hong Kong
47
SCHEDULE 2
THE EXECUTIVE DIRECTORS
NAME ADDRESS
Wong Kuen Ling Flat B, 33rd Floor, Block 11
Tierra Verde
33 Tsing King Road
Tsing Yi
New Territories
Hong Kong
Guy Jean Francois Bindels Flat B, 33rd Floor, Block 11
Tierra Verde
33 Tsing King Road
TSING YI
New Territories
Hong Kong
48
SCHEDULE 3
THE REORGANISATION DOCUMENTS
THE documents referred to in paragraph 4 of the section headed "Further
information about the Company" in Appendix V to the Prospectus including the
following:
(a) Sale & Purchase Agreement dated 30 December 2002 regarding the transfer of
equipment from NTSZ to Zastron.
(b) Supplemental agreement dated 26 March 2004 between NTSZ and Zastron.
(c) Certificate of Incorporation of the Company.
(d) - First Board Minutes of the Company dated 13 June 2003
- Register of Members of the Company dated 16 June 2003
(e) Sale & Purchase Agreement dated 3 July 2003 regarding the transfer of
interest in NTSZ.
(f) approval document issued by the Ministry of Commerce of the PRC dated 3
December 2003 ([2003] 1108).
(g) Certificate of Approval for Establishment of Enterprises with Investment
of Taiwan, Hong Kong, Macao and Overseas Chinese in the People's Republic
of China dated 4 December 2003 ([1998] 0041).
(h) Business Licence issued by Shenzhen Administration for Industry and
Commerce to NTSZ dated 11 December 2003.
(i) Memorandum of Understanding dated 26 March 2004 between NTSZ and NTEEPHK.
(j) Consultancy Agreement dated 1 October 2003 entered between NTSZ and
NTIC,
(k) Approval document issued by the Macao Trade and Investment Promotion
Institute regarding the transfer of NTIC from NTE Inc. to the Company.
(l) Sale & Purchase Agreement dated 24 March 2004 regarding transfer of equity
in NTIC.
49
SCHEDULE 4
THE CONDITIONS PRECEDENT DOCUMENTS
1 A certified copy of the resolutions of the shareholders of the Company
referred to in paragraph 3 of Appendix V to the Prospectus.
2 A certified copy of the resolution(s) of the Directors or a committee of
the Board of Directors:
2.1 approving and authorising execution, delivery and performance of or
confirming this Agreement and each of the Operative Documents to which the
Company is a party together with all other agreements and documents
necessary for the Global Offering;
2.2 approving the listing of the Shares on the Stock Exchange;
2.3 approving and authorising the issue of the Preliminary Offering Circular
on behalf of the Company or ratifying the same; and
2.4 approving and authorising the issue and the registration with the
Registrar of Companies in Hong Kong and the filing with the Registrar of
Companies in the Cayman Islands of the Public Offer Documents.
3 A certified copy of the resolutions of the directors of the Selling
Shareholder, inter alia, approving and authorising execution, delivery and
performance of or confirming this Agreement and each of the Operative
Documents to which it is a party,
4 Certified copies of the Operative Agreements except for the Price
Determination Agreement.
5 A certified copy of each of the service contracts of the Directors.
6 Certified copies of the responsibility letters, powers of attorney and
statements of interests signed by all the Directors in forms previously
agreed by HSBC.
7 Two printed copies of each of the Public Offer Documents each duly signed
by two Directors or their respective duly authorised agents and, if signed
by their respective duly authorised agents, certified copies of the
relevant authorisation document.
8 The Verification Notes signed by or on behalf of each person to whom
responsibility is therein assigned (other than HSBC and its legal
advisers).
9 One signed original or certified copy of the accountants' report dated the
Prospectus Date by the Reporting Accountants, the text of which is
contained in Appendix I to the Prospectus.
10 One signed original of the statement of adjustments and letter relating
thereto both dated the Prospectus Date produced by the Reporting
Accountants.
11 One signed original or certified copy of the letter with the valuation
certificate(s) dated the Prospectus Date from the Property Valuers to the
Directors in connection with the valuation of the property interests of
the Group as at 29 February 2004, the text of which is contained in
Appendix III to the Prospectus.
12 One signed original of each of the letters from the Reporting Accountants
to the Directors and HSBC (as sponsor and on behalf of the Public Offer
Underwriters) confirming the
50
indebtedness statement contained in the Prospectus, commenting on the
statement contained in the Prospectus as to the sufficiency of working
capital and commenting on the other financial information set out in the
Prospectus, such letters to be (in form and substance) previously agreed
by the Reporting Accountants with the Company and HSBC on behalf of the
Public Offer Underwriters.
13 One signed original or a certified copy of each of the letters dated the
Prospectus Date referred to in the paragraph headed "Consents of experts"
in Appendix V to the Prospectus containing consents to the issue of the
Prospectus with the inclusion of references to their respective names, and
where relevant, their reports and letters in the form and context in which
they are included.
14 A letter from Johnson Stokes & Master to the Public Offer Underwriters
confirming that a copy of each of the documents specified in Appendix VI
to the Prospectus have been delivered to the Registrar of Companies in
Hong Kong as required by section 342C of the Companies Ordinance.
15 A certified copy of the written confirmation issued by the Registrar of
Companies in Hong Kong confirming registration of the Prospectus as
required by section 342C of the Companies Ordinance.
16 A certified copy of the Articles of Association of the Company which were
conditionally adopted by the sole shareholder of the Company at a special
general meeting which was held on 8 April 2004.
17 A certified copy of each of the material contracts referred to in
sub-paragraphs B(1) of the paragraph headed "Summary of material
contracts" in Appendix V to the Prospectus.
18 A certified copy of each of the following:
18.1 the translation certificate issued by the translators in respect of the
Prospectus; and
18.2 the certificate of registration of the Company under Part XI of the
Companies Ordinance.
19 Certified copies of powers of attorney or authorities under which any of
the Conditions Precedent Documents (other than those material contracts
referred to in paragraph 17 above) are executed.
SCHEDULE 5
ADVERTISING ARRANGEMENTS
NEWSPAPERS DATES
South China Morning Post 16, 17, 19, 20 and 21 April 2004
Hong Kong Economic Times 16, 17, 19, 20 and 21 April 2004
52
SCHEDULE 6
PROFESSIONAL INVESTOR TREATMENT NOTICE
1 You are a Professional Investor by reason of your being within a category
of person described in the Securities and Futures (Professional Investor)
Rules as follows:
1.1 a trust corporation having been entrusted with total assets of not less
than HK$40 million (or equivalent) as stated in its latest audited
financial statements prepared within the last 16 months, or in the latest
audited financial statements prepared within the last 16 months of the
relevant trust or trusts of which it is trustee, or in custodian
statements issued to the trust corporation in respect of the trust(s)
within the last 12 months;
1.2 a high net worth individual having, alone or with associates on a joint
account, a portfolio of at least HK$8 million (or equivalent) in
securities and/or currency deposits, as stated in a certificate from an
auditor or professional accountant or in custodian statements issued to
the individual within the last 12 months;
1.3 a corporation the sole business of which is to hold investments and which
is wholly owned by an individual who, alone or with associates on a joint
account, falls within paragraph 1.2 above; and
1.4 a high net worth corporation or partnership having total assets of at
least HK$40 million (or equivalent) or a portfolio of at least HK$8
million (or equivalent) in securities and/or currency deposits, as stated
in its latest audited financial statements prepared within the last 16
months or in custodian statements issued to the corporation or partnership
within the last 12 months.
HSBC has categorised you as a Professional Investor based on information
you have given us. You will inform us promptly in the event any such
information ceases to be true and accurate. You will be treated as a
Professional Investor in relation to all investment products and markets.
2 As a consequence of categorisation as a Professional Investor, HSBC is not
required to fulfil certain requirements under the Code of Conduct for
Persons Licensed by or Registered with the Securities and Futures
Commission (the "CODE") and other Hong Kong regulations. While HSBC may in
fact do some or all of the following in providing services to you, HSBC
has no regulatory responsibility to do so.
2.1 Client agreement
HSBC is not required to enter into a written agreement complying with the
Code relating to the services that are to be provided to you.
2.2 Risk disclosures
HSBC is not required by the Code to provide you with written risk warnings
in respect of the risks involved in any transactions entered into with
you, or to bring those risks to your attention.
2.3 Information about HSBC
HSBC is not required to provide you with information about its business or
the identity and status of employees and others acting on its behalf with
whom you will have contact.
2.4 Prompt confirmation
53
HSBC is not required by the Code to promptly confirm the essential
features of a transaction after effecting a transaction for you.
2.5 Information about clients
HSBC is not required to establish your financial situation, investment
experience or investment objectives, except where HSBC is providing advice
on corporate finance work.
2.6 Nasdaq-Amex Pilot Program
If you wish to deal through the Stock Exchange in securities admitted to
trading on the Stock Exchange under the Nasdaq-Amex Pilot Program, HSBC is
not required to provide you with documentation on that program.
2.7 Suitability
HSBC is not required to ensure that a recommendation or solicitation is
suitable for you in the light of your financial situation, investment
experience and investment objectives.
3 You have the right to withdraw from being treated as a Professional
Investor at any time in respect of all or any investment products or
markets on giving written notice to the Compliance Department of HSBC.
4 By entering into this Agreement, you represent and warrant to HSBC that
you are knowledgeable and have sufficient expertise in the products and
markets that you are dealing in and are aware of the risks in trading in
the products and markets that you are dealing in.
5 By entering into this Agreement, you hereby agree and acknowledge that you
have read and understood and have had explained to you the consequences of
consenting to being treated as a Professional investor and the right to
withdraw from being treated as such as set out herein and that you hereby
consent to being treated as a Professional Investor.
6 By entering into this Agreement, you hereby agree and acknowledge that
HSBC will not provide you with any contract notes, statements of account
or receipts under the Hong Kong Securities and Futures (Contract Notes,
Statements of Account and Receipts) Rules where such would otherwise be
required.
54
SCHEDULE 7
THE WARRANTIES
PART 1
1 CAPACITY AND AUTHORITY
1.1 Each of the Warrantors has the requisite power and authority to enter into
and perform its obligations under this Agreement and each of the Operative
Documents to which it is a party.
1.2 This Agreement and each of the Operative Documents to which the Warrantors
or any one of them is a party and any other document required to be
executed by the Warrantors or any one of them pursuant to the provisions
of this Agreement or any of the Operative Documents constitute or will,
when executed and delivered, constitute valid and binding obligations of
the Warrantors enforceable in accordance with their respective terms.
1.3 The execution and delivery of, and the performance by each of the
Warrantors of its obligations under this Agreement or any of the Operative
Documents to which it is a party do not and will not, and each such
document does not and will not:
1.3.1 result in a breach of any provision of the memorandum or articles of
association or bye-laws (or equivalent constitutive documents) of
the Warrantors or any member of the Group; or
1.3.2 result in a breach of, or constitute a default under, any indenture,
mortgage, charge, trust, lease, agreement, instrument or obligation
to which any member of the Group or any of the Warrantors is a party
or by which any member of the Group or any of the Warrantors or any
of their respective assets is bound;
1.3.3 result in a breach of any Laws to which any member of the Group or
any of the Warrantors is subject or by which any member of the Group
or any of the Warrantors or any of their respective assets is bound;
1.3.4 except as disclosed in the Prospectus and the Preliminary Offering
Circular, require any Approval from any Government Authority or the
sanction or consent of its shareholders; or
1.3.5 result in the creation or imposition of any Encumbrance or other
restriction upon any assets of any member of the Group.
1.4 Each member of the Group has been duly incorporated and is validly
existing under the laws of the jurisdiction in which it is established and
is capable of suing and being sued.
1.5 Each member of the Group has the legal right and authority to own, use,
lease and operate its assets and to conduct its business in the manner
presently conducted.
1.6 Neither the Company nor any of the Subsidiaries is in violation of any of
its respective constitutive documents.
1.7 None of the Warrantors or any of the Subsidiaries has taken any action nor
have any steps been taken or legal, legislative or administrative
proceedings been started or threatened (i) to wind up, dissolve, make
dormant, or eliminate the Company or (as the case may be) the Selling
Shareholder or (as the case may be) any of the Subsidiaries, or (ii) to
withdraw, revoke or cancel any Approval to conduct business of any member
of the Group.
55
2 THE REORGANISATION
2.1 Each step of the Reorganisation was effected in compliance with all
applicable Laws of all appropriate jurisdictions.
2.2 Neither the Reorganisation (or its implementation) nor any of the
Reorganisation Documents:
2.2.1 resulted or will result in a breach of any of the terms or
provisions of, or in the case of the Company, its Articles of
Association (or its articles of association at the time) or, in the
case of any Subsidiary, its constituent documents; or
22.2 resulted or will result in a breach of, or constituted or will
constitute a default under, any indenture, mortgage, charge, trust,
lease, agreement, instrument or obligation to which the Company or
any Subsidiary was or is a party or by which the Company or any
Subsidiary or any of their respective assets was or is bound; or
2.2.3 resulted or will result in a breach of any Laws to which the Company
or any Subsidiary was or is subject or by which the Company or any
Subsidiary or any of their respective assets was or is bound; or
2.2.4 resulted or will result in the creation or imposition of any
Encumbrance or other restriction upon any assets of any member of
the Group; or
2.2.5 has rendered or will render the Company or any of the Subsidiaries
liable to any additional tax, duty, charge, impost or levy of any
amount which has not been provided for in the accounts based upon
which the accountants' report was prepared by the Reporting
Accountants and set out in Appendix I to the Prospectus, or in the
Deed of Indemnity or otherwise described in the Prospectus and the
Preliminary Offering Circular.
2.3 All Approvals required in connection with the Reorganisation have been
obtained and are in full force and effect and no Approval is subject to
any condition precedent which has not been fulfilled or performed.
2.4 There are no legal or administrative or other proceedings pending anywhere
challenging the effectiveness or validity of the Reorganisation or any of
the Reorganisation Documents and, to the best knowledge, information,
belief and awareness of the Warrantors, no such proceedings are threatened
or contemplated by any Governmental Authority or by any other person.
3 THE GLOBAL OFFERING
3.1 The details of the authorised and issued share capital of the Company and
the Subsidiaries set out in the Prospectus and the Preliminary Offering
Circular are true and accurate in all respects.
3.2 There are no outstanding securities convertible into or exchangeable for,
or warrants, rights or options to purchase from the Company, or subscribe
for, or obligations of the Company to issue or sell, or pre-emptive or
other rights to subscribe or acquire, shares or securities in any member
of the Group.
3.3 The Offer Shares conform to the description thereof contained in the
Prospectus and the Preliminary Offering Circular and such description is
true and correct in all respects.
56
3.4 The Company has obtained an approval in principle for the listing of, and
permission to deal in, the shares of the Company in issue or to be issued,
as described in the Prospectus and the Preliminary Offering Circular, on
the Stock Exchange.
3.5 The performance by the Company and the Selling Shareholder of their
respective obligations under the Global Offering; the sale and transfer of
the Offer Shares; and the issue, publication, distribution or making
available of the Public Offer Documents, the Formal Notice and the
Preliminary Offering Circular have been duly authorised and do not and
will not:
3.5.1 result in a violation or breach of any provision of the Articles of
Association; or
3.5.2 result in a breach of, or constitute a default under, any indenture,
mortgage, charge, trust, lease, agreement or other instrument to
which any member of the Group is a party or by which any member of
the Group or any of its assets is bound; or
3.5.3 result in a breach of any Laws to which any member of the Group is a
party or is subject or by which any member of the Group or any of
their respective assets is bound; or
3.5.4 except as disclosed in the Prospectus and the Preliminary Offering
Circular, require any Approval from any Governmental Authority or,
in the case of the Company, the sanction or consent of its
shareholders; or
3.5.5 result in the creation or imposition of any Encumbrance or other
restriction upon any assets of any member of the Group.
3.6 All Approvals required for the performance by the Company and the Selling
Shareholder of their respective obligations under the Global Offering; the
sale and transfer of the Offer Shares; and the issue, publication,
distribution or making available of each of the Public Offer Documents,
the Formal Notice and the Preliminary Offering Circular have been or will
(prior to the Prospectus Date) be irrevocably and unconditionally obtained
and are in full force and effect.
3.7 All of the Offer Shares:
3.7.1 are fully paid up;
3.7.2 have not been issued in violation of or subject to any right of
pre-emptive right, right of first refusal or similar rights; and
3.7.3 are freely transferable by the Selling Shareholder and there are no
restrictions on subsequent transfers of the Offer Shares under the
Laws of the Cayman Islands.
3.8 No holder of Shares is or will be subject to any liability regarding the
Company arising out of his holding of Shares (except to the extent of the
amount payable for such Shares on purchase under the terms of the Global
Offering).
3.9 There are no limitations on the rights of holders of Shares to hold or
vote or transfer their shares.
3.10 All dividends and other distributions declared and payable on the shares
of capital stock of the Company may under the current laws and regulations
of the Cayman Islands be paid to the shareholders of the Company in Hong
Kong dollars, and may be converted into foreign currency that may be
freely transferred out of the Cayman Islands and all such
57
dividends and other distributions will not be subject to withholding or
other taxes under the laws and regulations of the Cayman Islands and are
otherwise free and clear of any other tax, withholding or deduction in the
Cayman Islands and may be so paid without the necessity of obtaining any
Approval from any Governmental Authority in the Cayman Islands.
3.11 None of the Warrantors nor any of their respective affiliates, agents and
(where applicable) subsidiaries, nor any person acting on its or their
behalf, has taken or will take or caused or authorised or will cause or
authorise any other person to take, directly or indirectly, any
stabilizing action or any action designed to or which constitutes or which
cause or to result in, or that has constituted or which might reasonably
be expected to cause or result in, the stabilization or manipulation, in
violation of applicable Laws, of the price of any security of the Company,
provided that the granting of the Over-allotment Option shall not
constitute a breach of this paragraph 3.11.
4 THE ACCOUNTS
4.1 The audited combined results of the Group for each of the three years
ended the Accounts Date and the audited combined net assets of the Group
as at the Accounts Date contained in the accountants' report prepared by
the Reporting Accountants and set out in Appendix I to the Prospectus have
been prepared in accordance with generally accepted Hong Kong accounting
principles, standards and practices so as to give a true and fair view of
the combined net assets of the Group at the Accounts Date and of the
results of the Group for the accounting reference period of three years
ending on the Accounts Date and:
4.1.1 such accounts are accurate in all respects, make due provision for
any bad or doubtful debts and make appropriate provision for (or
contain a note in accordance with good accounting practice
respecting) all deferred or contingent liabilities, whether
liquidated or unliquidated at the date thereof;
4.1.2 depreciation of fixed assets has been made at rates sufficient to
spread the cost over their respective estimated useful lives to the
Group; and
4.1.3 the profits and losses shown by such accounts and the trend of
profits thereby shown have not been affected by any unusual or
exceptional item or by any other matter which has rendered such
profits or losses unusually high or low.
4.2 The unaudited management accounts of the Group for the 2 months ended 29
February 2004 have been prepared in accordance with generally accepted
Hong Kong accounting principles, standards and practices so as to give a
true and fair view of the state of affairs of the Group as at 29 February
2004 and of the results of the Group for the accounting reference period
of 2 months ended 29 February 2004 and:
4.2.1 such accounts make proper provision for any bad or doubtful debts
and make appropriate provision for (or contain a note in accordance
with good accounting practice respecting) all deferred or contingent
liabilities, whether liquidated or unliquidated at the date thereof;
4.2.2 depreciation of fixed assets has been made at rates sufficient to
spread the cost over their respective estimated useful lives to the
Group; and
4.2.3 the profits and losses shown by such accounts and the trend of
profits thereby shown have not been affected by any unusual or
exceptional item or by any other matter which has rendered such
profits or losses unusually high or low.
58
4.3 The Reporting Accountants, who have certified certain financial
statements of the Company and its Subsidiaries, are qualified independent
professional accountants as required by the Listing Rules, the Companies
Ordinance, the Professional Accountants Ordinance, and the rules and
regulations thereunder.
5 CHANGES SINCE THE ACCOUNTS DATE
5.1 Since the Accounts Date:
5.1.1 each member of the Group has carried on and will carry on business
in the ordinary and usual course so as to maintain it as a going
concern and in the same manner as previously carried on and since
such date has not entered into any contract, transaction or
commitment outside the ordinary course of business or of an unusual
or onerous nature;
5.1.2 there has been no material adverse change, or any development
involving a prospective material adverse change, in the general
affairs, management, financial condition or prospects of the said
business or the earnings, business affairs or net asset value of the
said business or of the Group taken as a whole as compared with the
position or prospects disclosed by the audited combined net assets
of the Group referred to in paragraph 4.1 above and there has been
no damage, destruction or loss (whether or not covered by insurance)
affecting the said business or its assets;
5.1.3 each member of the Group has continued to pay its creditors in the
ordinary course of business;
5.1.4 save as disclosed in the Prospectus and the Preliminary Offering
Circular no member of the Group has acquired, sold, transferred or
otherwise disposed of any assets of whatsoever nature or cancelled
or waived or released or discounted in whole or in part any debts or
claims, except in each case in the ordinary course of business;
5.1.5 save as disclosed in the Prospectus and the Preliminary Offering
Circular no member of the Group has purchased or reduced any of its
share capital, nor declared, paid or made any dividend or
distribution of any kind on any class of shares; and
5.1.6 no member of the Group has taken on or become subject to any
material contingent liability.
6 FINANCIAL REPORTING PROCEDURES
The Directors have established procedures which provide a reasonable basis
for them to make proper judgements as to the financial position and
prospects of the Group, taken as a whole, and the Group maintains a system
of internal accounting controls sufficient to provide reasonable assurance
that (!) transactions are executed in accordance with management's general
or specific authorisations; (ii) transactions are recorded as necessary to
permit preparation of complete and accurate returns and reports to
regulatory bodies as and when required by them and financial statements in
accordance with the relevant generally accepted accounting principles and
applicable accounting requirements; (iii) access to assets is permitted
only in accordance with management's general or specific authorisation;
and (iv) the recorded accountability for assets is compared with existing
assets at reasonable intervals and appropriate actions taken with respect
to any
59
differences. The Group's current management information and accounting
control system has been in operation for at least three years (or since
incorporation, whichever is shorter) during which none of them has
experienced any difficulties with regard to (i) through (iv) above or with
regard to ascertaining at any point in time the differences in real time
between budgeted and actual expenses.
7 ACCOUNTING AND OTHER RECORDS
The statutory books, books of account and other records of whatsoever kind
of each member of the Group are up-to-date and contain complete and
accurate records required by Law to be dealt with in such books and no
notice or allegation that any is incorrect or should be rectified has been
received. All accounts, documents and returns required by Law to be
delivered or made to the Registrar of Companies in Hong Kong and the
Cayman Islands or any other authority have been duly and correctly
delivered or made.
8 CAPITAL AND CONTRACTUAL COMMITMENTS
8.1 No member of the Group has any capital commitment or any guarantee or
other contingent liabilities.
8.2 No member of the Group is, or has been, party to any unusual, long-term or
onerous commitments, contracts or arrangements not wholly on an arm's
length basis in the ordinary and usual course of business. For these
purposes, a long-term contract, commitment or arrangement is one which is
unlikely to have been fully performed in accordance with its terms more
than six months after the date it was entered into or undertaken or is
incapable of termination by the relevant member of the Group on six
months' notice or less.
8.3 No member of the Group is party to any agency, distributorship, marketing,
purchasing, manufacturing or licensing agreement or arrangement or any
agreement or arrangement which restricts its freedom to carry on its
business in any part of the world in such manner as it thinks fit.
8.4 All the contracts and all leases, tenancies, licences, concessions and
agreements of whatsoever nature to which any member of the Group is a
party are valid, binding and enforceable obligations of the parties
thereto and the material terms thereof have been complied with by the
relevant member of the Group and by all the other parties thereto and
there are no grounds for rescission, avoidance or repudiation of any of
the contracts or such leases, tenancies, licences, concessions or
agreements and no notice of termination or of intention to terminate has
been received in respect of any thereof.
9 LITIGATION AND OTHER PROCEEDINGS
9.1 Save as disclosed in the Prospectus and the Preliminary Offering Circular
no litigation, arbitration or governmental proceedings or investigations
directly or indirectly involving any member of the Group or involving or
affecting any of the directors of any member of the Group or any member of
the Group is in progress or, to the best knowledge, information, belief
and awareness of the Warrantors, or any of them, is threatened or pending
and to the best knowledge, information, belief and awareness of the
Warrantors after due and careful enquiry, there are no circumstances
likely to give rise to any such litigation, arbitration or governmental
proceedings or investigations.
9.2 No member of the Group which is a party to a joint venture or
shareholders' agreement is in dispute with the other parties to such joint
venture or shareholders' agreement and to the
60
best knowledge, information, belief and awareness of the Warrantors after
due and careful enquiry, there are no circumstances which may give rise to
any dispute or affect the relevant member's relationship with such other
parties which might be expected to have a material adverse effect on such
joint venture or company or its business or finances.
10 INDEBTEDNESS/DEFAULT
10.1 Save as disclosed in the Prospectus and the Preliminary Offering Circular,
no member of the Group has any outstanding liabilities, term loans, other
borrowings or indebtedness in the nature of borrowings, including bank
overdrafts and loans, debt securities or similar indebtedness, hire
purchase commitments or any mortgages and charges.
10.2 No outstanding indebtedness of any member of the Group which is material
taken in the context of the Group as a whole has become repayable before
its stated maturity, nor has any security in respect of such indebtedness
become enforceable by reason of default by any member of the Group
10.3 No person to whom any indebtedness of any member of the Group, which is
material taken in the context of the Group as a whole and which is
repayable on demand, is owed has demanded or threatened to demand
repayment of, or to take steps to enforce any security for, the same.
10.4 No circumstance has arisen such that any person is now entitled to require
payment of any indebtedness or under any guarantee of any liability of any
member of the Group which is material taken in the context of the Group as
a whole by reason of default by any such member or any other person or any
guarantee given by any member of the Group which is material taken in the
context of the Group as a whole.
10.5 No event has occurred and is subsisting or, to the best knowledge,
information, belief and awareness of the Warrantors, is about to occur
which constitutes or would (whether with the expiry of any applicable
grace period or the fulfilment of any condition or the giving of any
notice or the compliance with any other formality or otherwise) constitute
a default under, or result in the acceleration by reason of default of,
any obligations under any agreement, undertaking, instrument or
arrangement to which any member of the Group is a party or by which any of
them or their respective revenues or assets are bound.
10.6 The amounts borrowed by each member of the Group do not exceed any
limitation on its borrowing contained in its articles of association or
bye-laws (or equivalent constituent documents), any debenture or other
deed or document binding upon it and except in the ordinary course of
business, no member of the Group has factored any of its debts, or engaged
in financing of a type which would not be required to be shown or
reflected in its audited accounts.
10.7 All the Group's borrowing facilities have been duly executed and are in
full force and effect. All undrawn amounts under such borrowing facilities
are or will be capable of drawdown. No event has occurred and no
circumstances exist which could cause any undrawn amounts under any such
borrowing facilities to be unavailable for drawing as required.
10.8 No event has occurred and no circumstances exist in relation to any
government, regional, state or local authority investment grants, loan
subsidies or financial assistance received by or pledged to any member of
the Group in consequence of which any of the member of the Group is or may
be held liable to forfeit or repay in whole or in part any such grant or
loan.
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11 ARRANGEMENTS WITH RELATED PARTIES
11.1 No indebtedness (actual or contingent) and no contract or arrangement is
outstanding between any member of the Group and any director of any member
of the Group or any of his associates (as defined in the Listing Rules).
11.2 Save as disclosed in the Prospectus and the Preliminary Offering Circular
or for such transactions as may be entered into by the Company pursuant to
any of the Operative Documents, no indebtedness (actual or contingent) and
no contract or arrangement is outstanding between any member of the Group
and the Warrantors (excluding the Company) or any of them or any company
(excluding the members of the Group) or undertaking which is owned or
controlled by the Warrantors (excluding the Company) or any of them
(whether by way of shareholding or otherwise).
11.3 None of the Warrantors (excluding the Company) nor any of their respective
associates (as defined in the Listing Rules), either alone or in
conjunction with or on behalf of any other person, is engaged in any
business of any member of the Group or any business similar to or in
competition with the business of any member of the Group to the extent
that there could be a conflict of interests between the Warrantors
(excluding the Company) or any of their respective associates (as defined
in the Listing Rules) and the general body of shareholders of the Company,
nor are any of the Warrantors (excluding the Company) or their respective
associates (as defined in the Listing Rules) interested, directly or
indirectly, in any assets which have since the date two years immediately
preceding the Prospectus Date been acquired or disposed of by or leased to
any member of the Group.
11.4 There are no relationships or transactions not in the ordinary course of
business between any member of the Group and their respective customers or
suppliers.
11.5 In respect of the connected transactions (as defined under the Listing
Rules) of the Group (the "CONNECTED TRANSACTIONS"): (A) the statements
contained in the Prospectus and the Preliminary Offering Circular relating
to the Connected Transactions are true and accurate and there are no other
facts the omission of which would make any such statements misleading, and
there are no other Connected Transactions which have not been disclosed in
the Prospectus and the Preliminary Offering Circular; (B) all information
(including but not limited to historical figures) and documentation
provided by the Company to HSBC and the Underwriters are true and accurate
and complete and there is no other information or document which have not
been provided the result of which would make the information and documents
so received misleading; (C) the transactions mentioned in the section
"Connected Transactions" in the Prospectus and the Preliminary Offering
Circular have been entered into and will be carried out in the ordinary
course of business, on normal commercial terms and are fair and reasonable
so far as the shareholders of the Company are concerned; (D) each of the
Company and (where applicable) the Selling Shareholder) has complied with
and undertakes to continue to comply with the terms of the Connected
Transactions disclosed in the Prospectus and the Preliminary Offering
Circular so long as the agreement or arrangement relating thereto is in
effect and shall inform HSBC should there be any breach of any such terms
either before or after the listing of Shares on the Stock Exchange; (E)
each of the Connected Transactions and related agreements and undertakings
as disclosed in the Prospectus and the Preliminary Offering Circular
constitutes a legal, valid and binding agreement or undertaking of the
relevant parties thereto; and (F) each of the Connected Transactions has
been consummated and was and will be effected in compliance with all
applicable Laws.
62
12 GROUP STRUCTURE
12.1 The Subsidiaries are the only subsidiaries of the Company.
12.2 No member of the Group has any branch, agency, place of business or
permanent establishment outside Hong Kong, the Cayman Islands, Macao and
the PRC.
12.3 No member of the Group acts or carries on business in partnership with any
other person or is a member of any corporate or unincorporated body,
undertaking or association or holds or is liable on any share or security
which is not fully paid up or which carries any liability.
12.4 Each joint venture contract and shareholders agreement in respect of which
a member of the Group is a party is legal, valid, binding and enforceable
in all respects in accordance with its terms under its governing law and
all relevant Approvals in respect thereof have been obtained.
12.5 None of the member of the Group is engaged in any business activity or has
any asset or liability (whether actual, contingent or otherwise) which is
not directly or indirectly related to the business of the Group as
described in the Prospectus and the Preliminary Offering Circular.
13 ACCURACY AND ADEQUACY OF INFORMATION SUPPLIED
13.1 The recitals to this Agreement are true and accurate in all respects.
13.2 Subject to limitations set out in the Prospectus and the Preliminary
Offering Circular, the statistical and market related data included in the
Prospectus and the Preliminary Offering Circular are based on or derived
from sources which the Warrantors believe to be accurate and reliable.
13.3 All information supplied or disclosed by or on behalf of any member of
the Group and/or any director of any member of the Group and/or any of the
Warrantors to the Underwriters, the Reporting Accountants, the Property
Valuers and other professional advisers to the Underwriters for the
purposes of the Global Offering is true and accurate and not misleading
and was given in good faith and all forward-looking statements so supplied
or disclosed have been made after due and proper consideration and, where
appropriate, are based on the assumptions referred to in the Prospectus
and the Preliminary Offering Circular.
13.4 All information requested from the Company by the Reporting Accountants
and the Property Valuers for the purposes of their reports, letters, and
certificates to the Company and/or the Underwriters has been supplied to
them. No information was withheld from the Reporting Accountants and the
Property Valuers and the Company does not disagree with any aspect of the
reports, letters or certificates prepared by the Reporting Accountants and
the Property Valuers and the opinions attributed to the Directors in such
reports or letters are honestly held by the Directors and are fairly based
upon facts within their knowledge after due and careful consideration.
13.5 The replies to the questions set out in the Verification Notes given by or
on behalf of the Company or the Selling Shareholder or the Directors were
so given by persons having appropriate knowledge and duly authorised for
such purposes and all such replies have been given in full and in good
faith and were, and remain, true and accurate and not
63
misleading and contain all information and particulars with regard to the
subject matter thereof with no omissions,
13.6 None of the Public Offer Documents and the Preliminary Offering Circular
contains or will contain any untrue statement or omit to state any
material fact necessary to make the statements therein, in the light of
the circumstances under which they are made, not misleading or which are
material for disclosure therein. All expressions of opinion or intention
therein (including but not limited to the statements regarding the
sufficiency of working capital, use of proceeds, indebtedness, prospects,
dividends, material contracts and litigation) are made on reasonable
grounds or, where appropriate, reasonable assumptions and are truly and
honestly held and there .are no other material facts the omission of
disclosure therein of which would make any such statement or expression
misleading.
13.7 All forward-looking statements contained in the Public Offer Documents and
the Preliminary Offering Circular are made after due and proper
consideration, are based on relevant assumptions referred to therein and
represent reasonable and fair expectations honestly held based on facts
known to the Group and/or the Warrantors or any of them and there are no
other assumptions on which such forward-looking statements are based other
than the assumptions referred to in the Public Offer Documents and the
Preliminary Offering Circular in which such forward-looking statements are
contained. Such forward-looking statements do not omit or neglect to
include or take into account of any facts or matters which are or may be
material to such forward-looking statements or to the Global Offering.
13.8 Without limiting the generality of the foregoing, each of the Prospectus
and the Preliminary Offering Circular contains all particulars and
information reasonably necessary to enable an investor to make an informed
assessment of the activities, assets and liabilities, financial position,
management and prospects of the Group and its profits and losses and of
the rights attaching to the Shares and there are no other facts the
omission of which would make any statement in the Prospectus or the
Preliminary Offering Circular misleading or which is in the context of the
Global Offering material for disclosure.
13.9 The report prepared by the Company in respect of the adequacy of the
Group's working capital and cash flow for the twelve-month period after
the date of the Prospectus has been properly compiled by the Company on
the basis of the assumptions stated therein and is presented on a basis
consistent with the accounting principles and policies adopted by the
Reporting Accountants in relation to the preparation of the Accountants'
Report contained in the Prospectus and the Preliminary Offering Circular
after making proper provision for all known liabilities (whether actual or
contingent or otherwise); that the assumptions upon which the report are
based have been made after due and careful enquiry and are fair and
reasonable in the context of the Group and that there are no facts known
or which could on due and careful enquiry have been known to the Company
or the Directors which have not been taken into account in the preparation
of the report or the omission of which would make any statement made in
such report or any expression of opinion or intention contained or
assumption made in such report misleading.
13.10 The Public Offer Documents and the Formal Notice contain and, when each of
them is issued, wilt contain all information and particulars required to
comply with all statutory and other provisions (including the Companies
Ordinance, the Companies Law and the Listing Rules) so far as applicable.
64
14 PROPERTIES
14.1 None of the members of the Group owns, operates, manages, leases or has
any other right of interest in any other property of any kind save for
those described in the valuation report set out in the Prospectus and the
Preliminary Offering Circular.
14.2 With respect to the rights and interests in property and other assets
(including but not limited to land and buildings) owned by members of the
Group:
(i) the relevant member of the Group has good and marketable title, or
has the right by Law to good and marketable title, to such property
and other assets or any rights or interests thereto;
(ii) there are no mortgages, charges, liens, claims, Encumbrances or
other security interests or third party rights or interests,
conditions, planning consents, orders, regulations or other
restrictions affecting any of such property and other assets which
could have an adverse effect on the value of such property and other
assets or adversely limit, restrict or otherwise affect the ability
of the relevant member of the Group to utilise, develop or redevelop
any such property or other assets; and
(iii) the relevant member of the Group is entitled as legal and beneficial
owner of such property and other assets to all rights and benefits
as landlord and/or licensor under the leases, tenancies or licences
to which it is a party as landlord and/or licensor in respect of
such property and other assets, and such leases, tenancies and
licences are and will be in full force and effect
14.3 Where any property and other assets are held under lease, tenancy or
licence by any member of the Group.
(i) each lease, tenancy or licence is legal, valid, subsisting and
enforceable by the relevant member of the Group;
(ii) no default (or event which with notice or lapse of time, or both,
would constitute a default) by any member of the Group has occurred
and is continuing under any of such leases, tenancies or licences;
and
(iii) no member of the Group has notice of any claim of any nature that
has been asserted by anyone adverse to the rights of the relevant
member of the Group under such leases, tenancies or licences or
affecting the rights of the relevant member of the Group to the
continued possession of such leased or licensed property or other
assets.
14.4 The ownership of and the right to use the land and buildings as described
in the Prospectus and the Preliminary Offering Circular by the relevant
member of the Group is not subject to any unusual or onerous terms or
conditions.
15 INSURANCE
15.1 The description of the Company's insurance coverage contained in the
Prospectus and the Preliminary Offering Circular is true, accurate and not
misleading. All the assets of each of the members of the Group which are
of an insurable nature have at all times been and are insured in amounts
reasonably regarded as adequate and prudent against fire and other risks
normally insured against by companies carrying on similar businesses or
owning assets of a similar nature and each member of the Group has at all
times been and is adequately covered against accident, third party injury,
defective products, environmental
65
liabilities, damage and other risks normally covered by insurance by such
companies. Nothing has been done or has been omitted to be done whereby
any such policies have or may become void or are likely to be avoided.
15.2 Save and except for outstanding medical claims made under the Group's
medical insurance policies, no claim under any insurance policies taken
out by any member of the Group is outstanding and there are no
circumstances likely to give rise to such a claim. None of the outstanding
medical claims made under the Group's medical insurance policies is
material in the context of the Group as a whole.
15.3 All premiums due in respect of such insurance policies have been duly paid
in full and all conditions for the validity and effectiveness of the said
policies have been fully observed and performed.
15.4 None of the Warrantors has any reason to believe that any member of the
Group will not be able to renew its existing insurance coverage from
similar insurers as may be necessary to continue its business at a cost
that would not adversely affect the condition, financial or otherwise, or
the earnings, business or operations of the Group, taken as a whole.
16 COMPLIANCE WITH LEGAL AND REGULATORY REQUIREMENTS
16.1 Each member of the Group has carried on and is carrying on its business
and operations in accordance with applicable Laws and all statutory,
municipal and other Approvals necessary or desirable for the carrying on
of the businesses and operations of each of the member of the Group as now
carried on, as previously carried on and as proposed to be carried on have
been obtained and are (or were at the relevant time) valid and subsisting
and all conditions applicable to any such Approval have been and are
complied with and there are no facts or circumstances exist or have in the
past existed which may lead to the revocation, rescission, avoidance,
repudiation, withdrawal, non-renewal or change, in whole or in part, of or
in any existing Approvals or any requirements for additional Approvals
which could prevent, restrict or hinder the operations of any member of
the Group or involve any member of the Group in additional expenditure.
16.2 None of the members of the Group and the businesses now run by any of
them, nor any of their respective officers, directors, supervisors,
managers, agents, or employees have, directly or indirectly, (A) made or
authorised any contribution, payment or gift of funds or property to any
official, employee or agent of any governmental agency, authority or
instrumentality in Hong Kong, the Cayman Islands, Macao, the PRC or any
other jurisdiction or (B) made any contribution to any candidate for
public office, in either case, where either the payment or the purpose of
such contribution, payment or gift was, is, or would be prohibited under
applicable Law, of any locality, including but not limited to the U.S.
Foreign Corrupt Practices Act of 1977, as amended, or the rules and
regulations promulgated thereunder;
16.3 None of the members of the Group is a party to any agreement, arrangement
or concerted practice or is carrying on an practice which in whole or in
part contravenes or is invalidated by any anti-trust, anti-monopoly,
competition, fair trading, consumer protection or similar Laws in any
jurisdiction where any of the members of the Group has assets or carries
on business or in respect of which any filing, registration or
notification is required or is advisable pursuant to such Laws (whether or
not the same has in fact been made).
17 EMPLOYMENT AND PENSIONS
66
17.1 There are no amounts owing or promised to any present or former directors,
employees or consultants of any member of the Group other than
remuneration accrued due or for reimbursement of business expenses.
17.2 No directors or senior management or employees of any member of the Group
have given or been given notice terminating their contracts of employment.
17.3 There are no proposals to terminate the employment or consultancy of any
directors, employees or consultants of any member of the Group or to vary
or amend their terms of employment or consultancy (whether to their
detriment or benefit).
17.4 No member of the Group has outstanding any undischarged liability to pay
to any Governmental Authority in any jurisdiction any taxation,
contribution or other impost arising in connection with the employment or
engagement of directors, employees or consultants by it.
17.5 No liability has been incurred by any member of the Group for:
17.5.1 breach of any contract of service, contract for services or
consultancy agreement;
17.5.2 redundancy payments;
17.5.3 compensation for wrongful, constructive, unreasonable or unfair
dismissal;
17.5.4 failure to comply with any order for the reinstatement or
re-engagement of any director, employee or consultant; or
17.5.5 the actual or proposed termination or suspension of employment or
consultancy, or variation of any terms of employment or consultancy
of any present or former employee, director or consultant of any
member of the Group.
17.6 No dispute of material importance with the directors, employees (or any
trade union or other body representing all or any of such employees),
consultants or agents of any member of the Group exists or, to the best
knowledge, information, belief and awareness of the Warrantors, is
imminent or threatened. None of the members of the Group is aware of any
existing or imminent labour disturbance by the directors, employees or
consultants of any of its principal suppliers, customers or contractors
which might be expected to result in an adverse change in the condition,
financial or otherwise, or in the results of operations, business affairs
or business prospects or net worth of the Group.
17.7 The Group has in relation to its directors, employees or consultants (and
so far as relevant to each of its former directors, employees or
consultants) complied in all material respects with all applicable
statutes, regulations and bye-laws and the terms and conditions of such
directors', employees' or consultants' (or former directors', employees'
or consultants') contracts of employment or consultancy.
17.8 No contributions are being, or have been made by a member of the Group to
any pension, retirement, provident fund or death or disability benefit
scheme or arrangement other than the Pension Schemes and no member of the
Group participates in, or has participated in, or is liable to contribute
to, any pension, retirement, provident fund or death or disability benefit
scheme or arrangement in respect of past or present employees or directors
of the Group other than the Pension Schemes.
17.9 Each of the Pension Schemes complies with and has been operated in all
material respects in accordance with all applicable laws and regulations
and the rules of the
67
relevant scheme. There is no ground upon which any applicable
registrations or exemptions in respect of any of the Pensions Schemes
could be withdrawn or cancelled.
17.10 Other than contributions due to be paid at the next payment date, no
contributions (or contribution surcharge) in respect of any employee or
director of the Group or any other payment due to, or in respect of, the
Pension Schemes is unpaid.
17.11 All defined benefit retirement schemes are adequately funded and no
additional contributions by any member of the Group are currently due to
be made to make up for any shortfall.
17.12 There is no material dispute relating to the Pension Schemes, whether
involving any member of the Group, the trustees or administrators of the
Pension Schemes, any employee or director of a member of the Group, or any
other person and no circumstances exist which may give rise to any such
claims.
18 INTELLECTUAL PROPERTY
18.1 For the purpose of this paragraph 18, "INTELLECTUAL PROPERTY" means all
patents, patent rights, inventions, trade marks, service marks, logos,
get-up, registered or unregistered design rights, trade or business names,
domain names, trade secrets, confidential information, Know-how,
copyrights, semi-conductor topography rights, database rights and any
proprietary or confidential information systems processes or procedures
and of their intellectual property (whether, in each case, registered,
unregistered or unregistrable, and including pending applications for
registration and rights to apply for registration) and all rights of a
similar nature or having similar effect which may subsist in any part of
the world.
18.2 For the purpose of this paragraph 18, "KNOW-HOW" means confidential and
proprietary industrial and commercial information and techniques in any
form (including paper, electronically stored data, magnetic media, film
and microfilm) including without limitation drawings, formulae, test
results, reports, project reports and testing procedures, instruction and
training manuals, tables of operating conditions, market forecasts, lists
and particulars of customers and suppliers.
18.3 All Intellectual Property and all pending applications therefor which
have been, are or are capable of being used in or in relation to or which
are necessary for the business of each member of the Group are (or, where
appropriate in the case of pending applications, will be):
18.3.1 legally and beneficially owned by the relevant member of the Group
or lawfully used under valid licences granted by the registered
proprietor(s) or beneficial owner(s) thereof and such licences are
in full force and effect and have not been revoked or terminated
and there are no grounds on which they might be revoked or
terminated;
18.3.2 valid and enforceable;
18.3.3 not being infringed or attacked or opposed by any person;
18.3.4 not subject to any Encumbrance or any licence or authority in
favour of another;
18.3.5 in the case of rights in such Intellectual Property as are
registered or the subject of applications for registration, all
renewal fees which are due and steps which are required for their
maintenance and protection have been paid and taken; and
68
18.3.6 in the case of unregistered trade marks which are likely to be
material to any member of the Group,
and no claims have been made or threatened and no applications are
pending, which if pursued or granted might be material to the truth and
accuracy of any of the above statements in this Clause 18.3.
18.4 No member of the Group has received any notice or is otherwise aware of
(having made due and careful enquiries):
18.4.1 any infringement of or conflict with claimed or asserted rights of
others with respect to any rights mentioned in paragraph 18.3
above; or
18.4.2 any unauthorised use of any Know-how of any third party and no
member of the Group has made disclosure of Know-how to any person
except properly and in the ordinary course of business and on the
basis that such disclosure is to be treated as being of a
confidential character; or
18.4.3 any opposition by any person to any pending applications; or
18.4.4 any assertion of moral rights which would affect the use of any of
the Intellectual Property in the business of any member of the
Group; or
18.4.5 any facts or circumstances which would render any rights mentioned
in paragraph 18.3 above invalid or inadequate to protect the
interests of the relevant member of the Group or unenforceable.
18.5 The rights and interest held by the Group (whether as owner, licensee or
otherwise) in Intellectual Property comprises all the rights and interests
necessary or convenient for the carrying on of the business of each member
of the Group in and to the extent which it is presently conducted.
18.6 The processes employed and the products and services dealt in by a member
of the Group both now and at any time within the last six years do and did
not use, embody or infringe any rights or interests of third parties in
Intellectual Property in any respect (other than those belonging to or
licensed to a member of the Group and no claims of infringement of any
such rights or interests have been made or threatened by any third party.
18.7 All licences and agreements to which any member of the Group is a party
(including all amendments, novations, supplements or replacements to those
licences and agreements) are in full force and effect, no notice having
been given on any party to terminate them; the obligations of the parties
thereto thereunder have been fully complied with; and no disputes have
arisen or are foreseeable in respect thereof; and where such licences are
of such a nature that they could be registered with the appropriate
authorities and where such registration would have the effect of
strengthening the Group's rights, they have been so registered.
19 INFORMATION TECHNOLOGY
19.1 For the purpose of this paragraph 19, "INFORMATION TECHNOLOGY" means all
computer systems, communications systems, software and hardware owned,
used or licensed by or to any member of the Group.
19.2 The Information Technology comprises all the information technology
systems and related rights necessary to run the business of the Group.
69
19.3 All Information Technology which has been or which is necessary for the
business of any member of the Group is either legally and beneficially
owned by the relevant member of the Group or lawfully used under valid
licences granted by the registered proprietor(s) or beneficial owner(s)
thereof and such licences are in full force and effect and have not been
revoked or terminated and to the best knowledge, belief, awareness and
information of the Warrantors after due and careful enquiry, there are no
grounds on which they might be revoked or terminated.
19.4 All the records and systems (including but not limited to Information
Technology) material to the business of the Group taken as a whole and all
data and information of each member of the Group are maintained and
operated by a member of the Group are not wholly or partially dependent on
any facilities not under the exclusive ownership or control of a member of
the Group.
19.5 To the best knowledge, information, belief and awareness of the Warrantors
after due and careful enquiry, there are no bugs or viruses, logic bombs
or other contaminants (including without limitation, "worms" or "trojan
horses") in or failures or breakdowns of any computer hardware or software
or any other Information Technology equipment used in connection with the
business of any member of the Group which have caused any substantial
disruption or interruption in or to the business of any member of the
Group.
19.6 In the event that the persons providing maintenance or support services
for the Group's Information Technology cease or are unable to do so, the
members of the Group have all the necessary rights and information to
continue to maintain and support or have a third party maintain or support
the Information Technology which is material for the operations of the
Group as a whole.
19.7 Each member of the Group has in place procedures to prevent unauthorised
access and the introduction of viruses.
19.8 Each member of the Group has in place adequate back-up policies and
disaster recovery arrangements which enable its Information Technology and
the data and information stored thereon to be replaced and substituted
without material disruption to the business of the Group taken as a whole.
19.9 To the best knowledge, information, belief and awareness of the Warrantors
after due and careful enquiry, there are no defects relating to the
Information Technology owned or used by the business of any member of the
Group and the Information Technology owned or used by any member of the
Group has the capacity and performance necessary to fulfil the present and
foreseeable requirements of the business of any member of the Group.
20 DATA PROTECTION
20.1 Each member of the Group has complied in all respects with all applicable
data protection legislation, guidelines and industry standards.
20.2 No member of the Group has received any notice (including without
limitation any enforcement notice, de-registration notice or transfer
prohibition notice), letter, complaint or allegation from the relevant
data protection regulator alleging breach or non-compliance by it of the
applicable data protection legislation, guidelines and industry standards
or prohibiting the transfer of data to a place outside the territory.
20.3 No member of the Group has received a claim for compensation from any
individual in respect of its business under the applicable data protection
legislation, guidelines and
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industry standards in respect of inaccuracy, loss, unauthorised
destruction or unauthorised disclosure of data in the previous three years
and there is no outstanding order against any member of the Group in
respect of the rectification or erasure of data.
20.4 No warrant has been issued authorising the data protection regulator (or
any of his officers or servants) to enter any of the premises of any
member of the Group for the purposes of, inter alia, searching them or
seizing any documents or other material found there.
21 ENVIRONMENTAL MATTERS
21.1 For the purposes of this paragraph 21:
21.1.1 "ENVIRONMENT"means all or any part of the air (including, without
limitation, air within buildings or natural or man-made structures
whether above or below ground), water (including, without
limitation, territorial, ocean, coastal and inland waters, surface
water, groundwater and drains and sewers) and land (including,
without limitation, sea bed or river bed under any water as
described above, surface land and sub-surface land, and any
natural or man-made structures), and also includes human, animal
and plant life; and
21.1.2 "ENVIRONMENTAL LAW" means any treaty, national, state, federal or
local law, common law rule or other rule, regulation, ordinance,
by-law, code, decree, demand or demand letter, injunction,
judgement, notice or notice demand, code of practice, order or
plan issued, promulgated or approved thereunder or in connection
therewith pertaining to the protection of the Environment or to
health and safety matters (and shall include, without limitation,
laws relating to workers and public health and safety).
21.2 Each member of the Group has complied and is complying with all
Environmental Laws that are applicable to its business.
21.3 There is no civil, criminal or administrative action, claim, investigation
or other proceeding or suit pending or threatened against any member of
the Group arising from or relating to Environmental Law which is material
in the context of the Group as a whole and there are no circumstances
existing which may lead to any such action, claim, investigation,
proceeding or suit.
21.4 Each member of the Group conducts its operations so as not to lead to a
breach of Environmental Law and in accordance with good operating practice
of the industry in relation to all matters, practices and activities which
could affect or cause harm to the Environment.
21.5 None of the members of the Group occupies, leases, owns, uses or has
previously used, owned, leased or occupied, any property such that it is
or may be wholly or partly responsible for the costs of any clean-up or
other corrective action to any site or any part of the Environment.
21.6 There are no circumstances which require or may require any member of the
Group to incur significant expenditure which is material in the context of
the Group as a whole in respect of the Environment or under Environmental
Law.
22 TAXATION
22.1 All returns, reports or filings which ought to have been made by or in
respect of each of the existing member of the Group for taxation purposes
have been made and all such returns
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are up to date, correct and prepared with due care and skill and on a
proper basis and are not the subject of any dispute with the relevant
revenue or other appropriate authorities and there are no present
circumstances likely to give rise to any such dispute and the provisions
included in the audited combined results of the Group as at the Accounts
Date referred to in paragraph 4.1 above were sufficient to cover all
taxation (if any) in respect of all accounting periods ended on or before
the Accounts Date for which the Group was then liable, and the provisions
included in the unaudited management accounts of the Group for the 2
months ended 29 February 2004 referred to in paragraph 4.2 above were
sufficient to cover all taxation in respect of the period of 2 months
ended on 29 February 2004 for which the Group was then liable]. There is
no tax deficiency that has been asserted against any member of Group.
22.2 All information and statements concerning taxation and its application to
members of the Group in the Prospectus and the Preliminary Offering
Circular are true and accurate and not misleading.
22.3 Save as disclosed in the Prospectus and the Preliminary Offering Circular
(and subject to any reservation made therein), no tax or duty (including,
without limitation, any stamp or issuance or transfer tax or duty and any
tax or duty on capital gains or income, whether chargeable on a
withholding basis or otherwise) is payable to any Governmental Authority
in Hong Kong or the Cayman Islands in connection with:
22.3.1 the transfer of the Offer Shares;
22.3.2 the execution, delivery and performance of the Underwriting
Documents;
22.3.3 the delivery by the Selling Shareholder of the Offer Shares to or
for the respective accounts of the Public Offer Underwriters and
the International Placing Underwriters or to the initial purchasers
thereof (as the case may be) or from the International Placing
Underwriters to the placees of the International Placing in the
manner contemplated in the Underwriting Documents;
22.3.4 the payment by the Company to, and the receipt by shareholders of,
any dividend in respect of Shares; and
22.3.5 the sale, transfer or other disposition or delivery of any Shares,
including any realised or unrealised capital gains arising in
connection with such sale, transfer or other disposition.
23 IMMUNITY
None of the Warrantors nor any of their respective 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 counterclaim, from the
jurisdiction of any court, from service of process, from attachment prior
to or in aid of execution of judgement, or from other legal process or
proceedings for the giving of any relief or for the enforcement of any
judgement. The irrevocable and unconditional waiver and agreement of the
Warrantors in Clause 10.14 hereof not to plead or claim any such immunity
in any legal action, suit or proceeding based on this Agreement is valid
and binding under all applicable laws.
24 LAW AND JURISDICTION
24.1 Under the applicable Laws, the courts of the applicable jurisdiction of
each party will recognise and give effect to the choice of law and dispute
resolution provisions set forth in
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this Agreement and will enforce judgements of Hong Kong courts obtained
against the other parties to enforce this Agreement, provided that the
judgement:
(i) is not obtained by fraud;
(ii) is final and conclusive;
(iii) in the opinion of the relevant court after its review of such
judgement pursuant to international treaties concluded or acceded to
by the relevant jurisdictions or in accordance with the principle of
reciprocity, does not contradict the basic principles of Law of the
relevant jurisdictions;
(iv) in the opinion of the relevant court after its review of such
judgement pursuant to international treaties concluded or acceded to
by the relevant jurisdictions or in accordance with the principle of
reciprocity, does not violate state sovereignty, security or social
and public interest; and
(v) is for a definite sum of money.
PART 2
1 PROFESSIONAL INVESTOR
The Company has read and understood the Professional Investor Treatment
Notice and acknowledges and agrees to the representations waivers and
consents contained in the Professional Investor Treatment Notice. For the
purpose of this provision, the words "you" and "your" in the Professional
Investor Treatment Notice shall means "the Company" and "the Company's"
respectively.
PARTS 3
1 CAPACITY
1.1 The Selling Shareholder has been duly incorporated and is validly existing
under the laws of its place of incorporation and is capable of suing and
being sued.
2 THE GLOBAL OFFERING
2.1 The Selling Shareholder has good and valid title to, and is and will,
prior to the transfer of the Public Offer Shares to the purchasers thereof
under the Global Offering, be the legal and beneficial owner of, the
Public Offer Shares to be sold by it under the Global Offering, free and
clear of all Encumbrances and with the benefit of all rights attached
thereto and thereafter accruing thereto including the right to receive all
dividends or other distributions which may be declared, paid or made
thereon at or after the transfer of the Public Offer Shares pursuant to
Clause 3.3.3.
2.2 The execution and delivery by or on behalf of the Selling Shareholder of,
and compliance by the Selling Shareholder with, the terms of this
Agreement; the performance by the Selling Shareholder of its obligations
under the Global Offering; the sale and transfer of the Offer Shares; and
the issue, publication, distribution or making available of the Public
Offer Documents, the Formal Notice and the Preliminary Offering Circular
have been duly authorised and do not and will not:
2.2.1 result in a breach of any provision of the memorandum or articles of
association or bye-laws (or equivalent constitutive documents) of
the Selling Shareholder; or
73
2.2.2 result in a breach of, or Constitute a default under, any indenture,
mortgage, charge, trust, lease, agreement, instrument or obligation
to the Selling Shareholder is a party or by which the Selling
Shareholder or any of the Selling Shareholder's assets is bound;
2.2.3 result in a breach of any Laws to which the Selling Shareholder is
subject or by which the Selling Shareholder or any of its assets is
bound;
2.2.4 except as disclosed in the Prospectus and the Preliminary Offering
Circular, require any Approval from any Governmental Authority or
the sanction or consent of its shareholders; or
2.2.5 result in the creation or imposition of any Encumbrance or other
restriction upon any assets of the Selling Shareholder.
2.3 All Approvals required for the performance by the Selling Shareholder of
its obligations under the Global Offering; the sale and transfer of the
Offer Shares; and the issue, publication, distribution or making available
of each of the Public Offer Documents and the Preliminary Offering
Circular have been or will (prior to the Prospectus Date) be irrevocably
and unconditionally obtained and are in full force and effect.
3 PROFESSIONAL INVESTOR
The Selling Shareholder has read and understood the Professional Investor
Treatment Notice and acknowledges and agrees to the representations,
warranties and consents contained in the Professional Investor Treatment
Notice. For the purpose of this provision, the words "you" or "your" in
the Professional Investor Treatment Notice shall mean "the Selling
Shareholder" and "the Selling Shareholder's" respectively.
SIGNATURE PAGE
THE COMPANY
SIGNED by Li Shi Yuen, Joseph
for and on behalf of
NAM TAI ELECTRONIC &
ELECTRICAL PRODUCTS LIMITED
/s/ Tammie Mei Fung Tam
Tammie Mei Fung Tam
Johnson Stokes & Master
Solicitor, Hong Kong SAR
THE SELLING SHAREHOLDER
SIGNED by Li Shi Yuen, Joseph
for and on behalf of
NAM TAI ELECTRONICS, INC.
/s/ Tammie Mei Fung Tam
Tammie Mei Fung Tam
Johnson Stokes & Master
Solicitor, Hong Kong SAR
THE EXECUTIVE DIRECTORS
SIGNED by Li Shi Yuen, Joseph
as attorney for
WONG KUEN LING
/s/ Tammie Mei Fung Tam
Tammie Mei Fung Tam
Johnson Stokes & Master
Solicitor, Hong Kong SAR
SIGNED by Li Shi Yuen, Joseph
as attorney for
GUY JEAN FRANCOIS BINDELS
/s/ Tammie Mei Fung Tam
Tammie Mei Fung Tam
Johnson Stokes & Master
Solicitor, Hong Kong SAR
HSBC
SIGNED by Jonathan Orders
for and on behalf of
THE HONGKONG AND SHANGHAI
BANKING CORPORATION LIMITED /s/ Jonathan orders
/s/ [ILLEGIBLE]
CHOW KA LOK KEVIN
LINKLATERS
SOLICITOR, HONG KONG SAR
THE PUBLIC OFFER UNDERWRITERS
SIGNED by Jonathan Orders of
THE HONGKONG AND SHANGHAI
BANKING CORPORATION LIMITED
as the duly authorised agent or attorney of: /s/ Jonathan orders
BNP PARIBAS PEREGRINE CAPITAL LIMITED
NOMURA INTERNATIONAL (HONG KONG) LIMITED
CAZENOVE ASIA LIMITED
DBS ASIA CAPITAL LIMITED
VC CEF CAPITAL LIMITED
/s/ [ILLEGIBLE]
Chow Ka Lok Kevin
Linkiaters
Solicitor, Hong Kong SAR