Exhibit 4.4
AS OF OCTOBER 6, 2005
CHINA GRENTECH CORPORATION LIMITED
GRENTECH (BVI) LIMITED
SHENZHEN GRENTECH COMPANY LIMITED
ACTIS CHINA INVESTMENT HOLDINGS NO. 1 LIMITED
STANDARD CHARTERED PRIVATE EQUITY LIMITED
JAFCO ASIA TECHNOLOGY FUND
GAO YINGJIE
GUOREN INDUSTRIAL DEVELOPMENTS LIMITED
ZHUANG KUNJIE
DRAG INVESTMENTS LIMITED
AND
HENG XING YUE INVESTMENTS LIMITED
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AMENDED AND RESTATED
SHAREHOLDERS' AGREEMENT
RELATING TO
CHINA GRENTECH CORPORATION
LIMITED
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CONTENTS
PAGE
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CLAUSE
1. INTERPRETATION..................................................... 4
2. PURPOSE OF THE COMPANY............................................. 8
3. DIRECTORS AND MANAGEMENT........................................... 9
4. RESERVED MATTERS................................................... 11
5. INFORMATION AND REPORTING.......................................... 17
6. CONFIDENTIALITY.................................................... 18
7. RELATIONSHIP WITH THE FOUNDING SHAREHOLDERS AND THE INVESTORS...... 21
8. TRANSFER OF SHARES................................................. 24
9. FURTHER ASSURANCES................................................. 25
10. NON-ASSIGNMENT..................................................... 25
11. WAIVER OF RIGHTS................................................... 27
12. AMENDMENTS......................................................... 27
13. INVALIDITY......................................................... 27
14. NO PARTNERSHIP OR AGENCY........................................... 27
15. ENTIRE AGREEMENT................................................... 27
16. CONFLICT WITH MEMORANDUM AND ARTICLES.............................. 28
17. TERMINATION OF AGREEMENT........................................... 29
18. EXIT............................................................... 29
19. JOINT AND SEVERAL.................................................. 31
20. NOTICES............................................................ 31
21. SETTLEMENT OF DISPUTES............................................. 34
22. COUNTERPARTS AND LANGUAGE.......................................... 34
23. GOVERNING LAW...................................................... 34
24. AGENT FOR SERVICE OF PROCESS....................................... 34
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THIS AGREEMENT is made as of October 6, 2005
BETWEEN:
(1) CHINA GRENTECH CORPORATION LIMITED, incorporated under the laws of the
Cayman Islands, whose registered office is at P.O. Box 2681 GT, George
Town, Grand Cayman, British West Indies (the COMPANY);
(2) GRENTECH (BVI) LIMITED, incorporated under the laws of the British Virgin
Islands, whose registered office is at P.O. Box 957, Offshore
Incorporations Centre, Road Town, Tortola, British Virgin Islands (the BVI
SUBSIDIARY);
(3) SHENZHEN GRENTECH COMPANY LIMITED, a wholly foreign owned enterprise
established under the laws of the PRC, whose registered office is at Block
A, 16F, Zhongyin Tower, Caitian North Road, Futian District, Shenzhen, PRC
(the SUBSIDIARY);
(4) ACTIS CHINA INVESTMENT HOLDINGS NO. 1 LIMITED, a public company
incorporated and existing under the laws of Mauritius, whose registered
office is at Les Cascades, Edith Cavell Street, Port Louis, Mauritius
(ACTIS);
(5) STANDARD CHARTERED PRIVATE EQUITY LIMITED, incorporated under the laws of
Hong Kong, whose registered office is at 10th Floor, Standard Chartered
Bank Building, 4-4A Des Voeux Road Central, Hong Kong (SCPE);
(6) JAFCO ASIA TECHNOLOGY FUND, incorporated under the laws of the Cayman
Islands, whose registered office is at P.O. Box 309, Grand Cayman, Cayman
Islands, British West Indies (JATF);
(7) MR. GAO YINGJIE, a PRC citizen at 23-402 Yitian Road Futian District,
Shenzhen, Guangdong Province 518026, PRC;
(8) GUOREN INDUSTRIAL DEVELOPMENTS LIMITED, incorporated under the laws of the
British Virgin Islands, whose registered office is at P.O. Box 957,
Offshore Incorporations Centre, Road Town, Tortola, British Virgin Islands;
(9) HENG XING YUE INVESTMENTS LIMITED, incorporated under the laws of the
British Virgin Islands, whose registered office is at P.O.Box 957 Offshore
Incorporations Centre Road Town, Tortola, British Virgin Islands;
(10) MR. ZHUANG KUNJIE, a PRC citizen at Longtang Park Huli District, Xiamen
Fujian Province 361000 PRC; and
(11) DRAG INVESTMENTS LIMITED, incorporated under the laws of the British Virgin
Islands, whose registered office is at P.O. Box 957, Offshore
Incorporations Centre, Road Town, Tortola, British Virgin Islands.
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WHEREAS:
(A) The Company holds 100% of the equity interest of the BVI Subsidiary, which
in turn holds 100% of the registered capital of the Subsidiary.
(B) At the date of this Agreement, the Company has an authorized share capital
of US$50,000 divided into 2,500,000,000 shares of US$0.00002 each.
(C) The Company has allotted and issued to the Investors (except Actis) and CDC
Group PLC (CDC) Preference Shares. CDC transferred its Preference Shares to
Actis on July 6, 2004.
(D) This Agreement sets out the terms governing the relationship of the Founding
Shareholders, BVI Holdcos and the Investors as direct or ultimate shareholders
in the Company.
IT IS AGREED as follows:
1. INTERPRETATION
DEFINITIONS
1.1 In this Agreement:
ACCOUNTS means in relation to any Financial Year:
(a) its unaudited balance sheet (and the unaudited consolidated balance sheet,
if any, of the Company and its Subsidiaries) as at the Accounts Date in
respect of that Financial Year; and
(b) its unaudited profit and loss account (and the unaudited consolidated
profit and loss account, if any, of the Company and its Subsidiaries) in
respect of that Financial Year,
together with any notes, reports or statements included in or annexed to them;
ACCOUNTS DATE means, in relation to any Financial Year of the Company, the last
day of that Financial Year;
AGREEMENT means this agreement;
ARTICLES means the Articles of Association of the Company;
BOARD means the Company's board of directors or any duly appointed committee of
it;
BUDGET means the budget of the Company (including operating budget and capital
expenditure budget) for a particular Financial Year in a format approved from
time to time by the Board;
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BUSINESS means the business intended to be carried on by the Company Group, as
described in Clause 2.1;
BUSINESS DAY means a day (other than Saturday, Sunday or public holiday) on
which banks generally are open in Hong Kong for a full range of business;
BUSINESS PLAN means a rolling business plan for the Company Group relating to
the then current Financial Year and the three succeeding Financial Years to be
updated annually;
BVI HOLDCOS means Heng Xing Yue Investments Limited, Drag Investments Limited
and Guoren Industrial Developments Limited (and BVI HOLDCO shall be construed
accordingly);
SALE means the acquisition (whether through a single transaction or a series of
transactions) by a person or his Connected Persons of Shares or of an interest
in Shares as a result of which such person(s) acquire(s) a Controlling Interest
(as defined in the Articles) in the Company;
CHANGE OF CONTROL means, with respect to a BVI Holdco, any sale, assignment,
transfer, pledge, hypothecation, mortgage, encumbrance or other type of
disposal, whether through one or a series of transactions, by which a Founding
Shareholder (or other BVI Holdco shareholder who executes a Deed of Adherence to
the transfer restrictions in the Articles) ceases to hold 100% of the legal and
beneficial interest of such BVI Holdco that such shareholder holds as of the
date of execution of this Agreement;
COMPANY includes any body corporate, wherever incorporated;
COMPANY GROUP means the Company and the Subsidiaries from time to time;
COMPANY GROUP MEMBER means any member of the Company Group including, for the
avoidance of doubt, the BVI Subsidiary and the Subsidiary;
COMPETITOR means any business operator on a list prepared by the Company that
the Company shall update each quarter (or more frequently, if necessary to
reflect the emergence of new competitors as a result of corporate mergers and
acquisitions, strategic alliances or joint ventures) and provide to the
Investors, provided that such list may consist of only those domestic PRC
business operators that are actual competitors and/or have similar customer base
as that of the Company Group in the markets in the PRC in which the Company
operates in respect of its principal products;
COMPLETION means completion of the subscription of Shares by the Investors;
CONFIDENTIAL INFORMATION means information as that described in Clause 6.1(a) to
(c) herein and all information, know-how and records (in whatever form held) in
any way connected with the Business including (without prejudice to the
generality of the foregoing) without limitation all formulae, designs,
specifications, drawings, data, operations and testing procedures, manuals and
instructions and all customer and
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supplier lists, sales information, business plans and forecasts and all
technical or other expertise and all computer software and all accounting and
tax records, correspondence, orders and enquiries that are confidential or not
generally known;
CONNECTED PERSON means
(a) in relation to an individual, that individual's spouse, co-habitee,
children, grand-children and any Permitted Transferee (as defined in the
Articles) of that individual; and
(b) in relation to an undertaking, any member of that undertaking's group and
any Permitted Transferee (as defined in the Articles) of that undertaking;COSTS
means liabilities, losses, damages, costs (including legal costs) and expenses
(including taxation), in each case of any nature whatsoever;
DEED OF ADHERENCE means a deed in the form attached as Schedule 1 to be executed
by any person who becomes a Shareholder;
DIRECTORS means the Company's directors;
EB DIVIDEND means the amount of any dividend declared on the Ordinary Shares and
payable to the BVI Holdcos (or to the Investor on their behalf) equal to amounts
due and payable by the BVI Holdcos to the Investors under the EB Subscription
Agreement (including the EB Premium) at the end of the Financial Year for which
such dividend on Ordinary Shares is declared;
EB PREMIUM has the meaning defined in the EB Subscription Agreement;
EB SUBSCRIPTION AGREEMENT means the agreement between Heng Xing Yue Investments
Limited, Drag Investments Limited, Guoren Industrial Developments Limited and
the Investors for the subscription of exchangeable bonds dated 17 September
2003;
EMPLOYMENT AGREEMENT means each of the respective employment agreements executed
by the key officers and employees of the Company;
EXCHANGEABLE BONDS means the bonds issued by BVI Holdcos to the Investors under
the EB Subscription Agreement;
FINANCIAL YEAR means a financial period of the Company commencing on 1 January
and ending on 31 December;
FOUNDING SHAREHOLDERS means Mr. Gao Yingjie and Mr. Zhuang Kunjie (and FOUNDING
SHAREHOLDER shall be construed accordingly);
GROUP means, in relation to a company, that company and its subsidiaries from
time to time;
INTELLECTUAL PROPERTY RIGHTS means patents, copyrights, rights in designs, trade
marks, rights in trade or business names or internet domain names, topography
and database rights, moral rights, rights in confidential information (whether
registered or
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unregistered, and including applications for any such rights) and any
intellectual property rights having the same or similar effect anywhere in the
world;
INVESTOR CONSENT means the written approval by or on behalf of the holders of
85% of the Preference Shares and the Exchangeable Bonds (calculated on an
as-converted, as-exchanged basis);
INVESTORS means Actis, SCPE, and JATF (and INVESTOR shall be construed
accordingly);
INVESTORS DIRECTORS means those directors on the Board nominated by the
Investors pursuant to Clause 3.2 or, in the case of the Subsidiary, a director
on the board of directors of the Subsidiary nominated by the Investors;
LISTING means a listing of the Ordinary Shares on the NASDAQ National Market,
New York Stock Exchange, The Hong Kong Stock Exchange Limited or the Singapore
Stock Exchange;
LISTING CONDITIONS means an underwriter's firm underwriting commitment for an
offering price based on a post-money market capitalization for the Company of
not less than (i) US$115,000,000 and (ii) a price/earnings ratio of 8.6 with
respect to the audited net profit after tax of the Company for the previous
Financial Year prior to the Listing or such other criteria to be agreed upon by
the BVI Holdcos and the Investors;
MEMORANDUM AND ARTICLES means the Company's memorandum and articles of
association;
ORDINARY SHARES means ordinary shares of US$0.01 each in the capital of the
Company;
PARTIES means Actis, SCPE, JATF, the BVI Subsidiary, the Subsidiary, Heng Xing
Yue Investments Limited, Drag Investments Limited, Guoren Industrial
Developments Limited, Mr. Gao Yingjie, Mr. Zhuang Kunjie and the Company (and
PARTY shall be construed accordingly);
PREFERENCE SHARES means the redeemable convertible preference shares of US$0.01
each in the Company;
PRC means mainland China;
RESERVED MATTERS means those matters set out in Clause 4.2;
SHAREHOLDERS means the parties or members of the parties' Groups who legally or
beneficially own Shares from time to time (and Shareholder shall be construed
accordingly);
SHARE(S) means any shares or other securities of the Company, of any type
whatsoever, regardless of class of rights, whether now authorized or not, and
rights, options or warrants to purchase any securities of any type whatsoever
that are, or may become convertible or exchangeable into shares or voting
securities of the Company;
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SUBSIDIARIES means any undertaking in which the Company (or persons acting on
its behalf for the time being) directly or indirectly holds or controls either:
(a) a majority of the voting rights exercisable at general meetings of the
members of that undertaking on all, or substantially all, matters; or (b) the
right to appoint or remove directors having a majority of the voting rights
exercisable at meetings of the board of directors of that undertaking on all, or
substantially all, matters;
TERMINATION DATE means the date of termination of the Employment Agreement; and
UNDERTAKING means a body corporate or partnership or an unincorporated
association carrying on trade or a business with or without a view to profit. In
relation to an undertaking which is not a company, expressions in this Agreement
appropriate to companies are to be construed as references to the corresponding
persons, officers, documents or organs (as the case may be) appropriate to
undertakings of that description.
HEADINGS
1.2 The headings in this Agreement do not affect its interpretation.
AGREED FORM
1.3 A reference to a document in this Agreement in the AGREED FORM is to a
document agreed by the parties and initialed by them or on their behalf for
identification purposes.
EXERCISE OF POWERS OF CONTROL
1.4 Where any obligation in this Agreement is expressed to be undertaken or
assumed by any party, that obligation is to be construed as requiring the
party concerned to exercise all rights and powers of control over the
affairs of any other person which it is able to exercise (whether directly
or indirectly) in order to secure performance of the obligation.
SCHEDULES
1.5 References to Schedules are to the schedules to this Agreement.
KNOWLEDGE, INFORMATION, BELIEF AND AWARENESS
1.6 References to the knowledge, information, belief or awareness of any person
shall be treated as including any knowledge, information, belief or
awareness which the person would have if the person made all usual and
reasonable enquiries.
2. PURPOSE OF THE COMPANY
BUSINESS
2.1 The business of the Company Group shall be technology development,
production and sale of telecommunications products, investment in and
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establishment of related businesses and information consultancy and to
endeavor to maximize economic benefits to the parties.
COMMERCIAL PRINCIPLES
2.2 The business of the Company Group shall be conducted in the best interests
of the Company in accordance with the general principles of the then
current Business Plan approved by the Board as well as ethical business
practices and compliance with PRC law and on sound commercial profit-making
principles with the aim of generating the maximum achievable maintainable
profits available for distribution.
Without limiting the generality of the foregoing, the Company will use its
best endeavors to ensure that the business of the Company and each Company
Group Member will be designed and carried on in a way that:
(a) provides safe and healthy working conditions for its employees and
contractors;
(b) encourages the efficient use of natural resources and promotes the
protection of the environment;
(c) treats all employees fairly in terms of recruitment, progression,
remuneration and conditions of work, irrespective of gender, race,
color, language, disability, political opinion, age, religion, or
national/social origin;
(d) allows consultative workplace structures and associations which
provide employees with an opportunity to present their views to
management;
(e) takes account of the impact of its operations on the local community
and seeks to ensure that potentially harmful occupational health and
safety, environmental and social effects are properly assessed,
addressed and monitored;
(f) upholds high standards of business integrity and honesty, and operates
in accordance with local laws and international good practice
(including those intended to fight extortion, bribery and financial
crime); and
(g) properly records, reports and reviews financial and tax information
relating to the business.
3. DIRECTORS AND MANAGEMENT
SUPERVISION BY THE BOARD
3.1 The Board shall, subject to the Reserved Matters, be responsible for the
overall direction, supervision and management of the Company.
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3.2 The Board shall comprise seven Directors of whom:
(a) Actis shall be entitled to nominate, appoint and maintain in office
one Director as well as one non-voting observer;
(b) SCPE shall be entitled to nominate, appoint and maintain in office one
Director as well as one non-voting observer;
(c) JATF shall be entitled to nominate, appoint and maintain in office one
Director as well as one non-voting observer;
(d) Heng Xing Yue Investments Limited shall be entitled to nominate,
appoint and maintain in office one Director as well as one non-voting
observer;
(e) Drag Investments Limited shall be entitled to nominate, appoint and
maintain in office one Director as well as one non-voting observer;
and
(f) Guoren Industrial Developments Limited shall be entitled to nominate,
appoint and maintain in office two Directors as well as one non-voting
observer.
The rights of any Shareholder to nominate, appoint and maintain in office a
Director(s) as indicated in this Clause 3.2 shall continue for as long as
such Shareholder, in conjunction with its affiliates, holds a minimum of
25% of its holdings owned immediately post-Completion (on an as-converted,
as-exchanged basis). For the avoidance of doubt, the exercise of conversion
or exchange rights on the Shares or Exchangeable Bonds shall not be deemed
to diminish the holdings of any Investor for the purpose of calculating its
Director appointment rights.
APPOINTMENT AND REMOVAL OF DIRECTORS
3.3 A party may appoint or remove a Director nominated by it by notice to the
Company signed by it or on its behalf. The appointment or removal shall
take effect when the notice is delivered to the Company, unless the notice
indicates otherwise. The parties shall use their respective votes in the
Company to ensure that the Board is constituted by persons nominated and
appointed in the manner set out in this Agreement. For the avoidance of
doubt, the appointment and removal of any Investors Director shall reside
only with the appointing party.
QUORUM
3.4 The quorum for transacting business at any Board meeting shall be five
Directors (including two Investors Directors) present (whether in person or
by means of a conference telephone or any other equipment which allows all
participants in the meeting to speak to and hear each other simultaneously)
when the relevant business is transacted. If a quorum is not present, the
Board meeting shall be automatically postponed for five Business Days at
the same
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time and place (and notice to that effect shall be given to all Directors),
and a quorum shall be formed when any four of the Directors are present in
the manner as aforesaid subject to Clause 4 (Reserved Matters). A Director
shall be regarded as present for the purpose of a quorum if represented by
an alternate Director in accordance with the Memorandum and Articles.
CONVENING DIRECTORS' MEETINGS
3.5 Any three Directors may call a meeting of the Board. The Directors shall
hold Board meetings in the PRC, and such meetings shall be held quarterly
to the extent practical but in any case at least once every six months.
NOTICE AND AGENDA
3.6 At least 14 days' written notice shall be given to each Board member of any
Board meeting in accordance with the Memorandum and Articles unless at
least four Directors, including two Investors Directors, approve a shorter
notice period. Any notice shall include an agenda identifying in reasonable
detail the matters to be discussed at the meeting together with copies of
any relevant papers to be discussed at the meeting. If any matter is not
identified in reasonable detail, the Board shall not decide on it, unless
all Board members agree otherwise in writing to waive such notice.
BOARD VOTING
3.7 Subject to Clause 4 (Reserved matters), the Board shall decide on matters
by simple majority vote. Each Director shall have one vote. Any Director
who is absent from a meeting may nominate any other person or persons to
act as his alternate and to vote in his place at the meeting.
4. RESERVED MATTERS
USE OF POWERS
4.1 The parties shall use their respective powers to ensure, so far as they are
legally able, that no action or activity falling into the scope of any of
the Reserved Matters is taken (whether by the Board, the Company, any
Company Group Member or any of the officers or managers within the Company
Group) unless such matter has been approved by a majority of the Board
including two Investors Directors. For the avoidance of doubt, (1) the
construction of a headquarters with a floor area of no more than 15,000
square meters and (2) items under Clauses 4.2(b), 4.2(d-h), and 4.2(l)
covered by a Business Plan or Budget properly approved as a Reserved Matter
under Clause 4.2(c), provided that such items in (2) are described in
sufficient detail in the Business Plan or Budget to enable the Investors
Directors to give informed consent on each such item when approving the
Business Plan or Budget.
RESERVED MATTERS
4.2 The Reserved Matters are:
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(a) changes in share capital
changing the authorized or issued share capital of any Company Group
Member, including the issue of Shares or other securities and the
granting of any option to issue of Shares or other securities save for
any issue of Ordinary Shares (i) at a price based on a pre-money
equity valuation of the Company of not less than US$118,147,500 and
(ii) that does not cause the aggregate of all Ordinary Shares issued
as a non-Reserved Matter under this Clause 4.2(a) (if any) to exceed
15% of the issued Ordinary Share capital (on a fully-diluted basis as
calculated on the date of Completion);
(b) changes in name or nature of business
changing the name of any Company Group Member (save for the change of
the name of the Company to include the Chinese translation) or
changing the nature or scope of the business of any Company Group
Member, including the addition of any new business and the termination
of any existing business;
(c) Business Plan and Budget
adopting each Business Plan and Budget;
(d) borrowings
any Company Group Member borrowing or raising money (including
entering into any finance lease, but excluding trade credit and other
short-term borrowings incurred in the ordinary course of operations)
which would result in the Company Group's aggregate borrowing
exceeding RMB10 million;
(e) investments and capital expenditure and commitments
any Company Group Member making any investment incurring any capital
expenditure or commitment singly, or cumulatively in any quarter, in
excess of RMB10 million;
(f) acquisitions and disposals
any Company Group Member acquiring or disposing of (whether in a
single transaction or series of transactions and whether by way of
merger, consolidation, other business, combination or otherwise) any
business, assets or any shares in any company where the value of the
acquisition or disposal exceeds RMB10 million;
(g) partnerships and joint ventures
any Company Group Member entering into or making a material alteration
to any partnership or joint venture involving a new or amended
business registration, profit-sharing agreement directly or
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indirectly involving an amount in excess of RMB 10 million, or
technology license or collaboration;
(h) material contracts
any Company Group Member entering into any contract, guarantee,
liability or commitment which:
(i) falls outside the scope of the Business; and
(ii) singly or cumulatively in any quarter could involve an obligation
of a material magnitude or nature; for this purpose MATERIAL
means a liability for expenditure in excess of RMB5 million
(including the allocation of non-cash resources such as
personnel).
(i) charges
creating any mortgage, charge, encumbrance or other security interest
of any nature in respect of all or any material part of any Company
Group Member's undertaking, property or assets save as security in
respect of any liability of any Company Group Member and the value of
such security shall not exceed three times the amount of the liability
to be secured or in the case where accounts receivable are comprised
in the security, the security coverage ratio shall be reduced to two.
For the purpose of this Clause 4.2(i), in the case of dispute, the
value of the security shall be determined by the Auditors.
(j) dividends
any Company Group Member declaring or paying any dividend (whether
final or interim) or other distribution with the exception of (i) the
EB Dividends and (ii) for each Financial Year and so long as the
Preference Dividends (as defined in the Articles) have been paid for
that year, declaration (but not payment) by the Company of dividends
for the Ordinary Shares (D_Ord) calculated as follows:
(1-b)
D_Ord = (----- X (D_PF + D_EB))
b
where,
D_Ord = Dividend on Ordinary Shares that may be declared (but not
paid) as a non-Reserved Matter under this Clause 4.2(j)
D_PF = Preference Dividends that have been paid in that Financial Year
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D_EB = EB Dividends less any EB Premium that have been paid in that
Financial Year
b = Percentage of outstanding shareholdings held by Investors on an
as-
(P + EB)
converted, as-exchanged basis = (--------)
TSC
P = Number of Ordinary Shares that would result from the conversion of
all Preference Shares outstanding
EB = Number of Ordinary Shares that would result from the exchange of
all Exchangeable Bonds outstanding
OS = Number of Ordinary Shares outstanding less EB
TSC = Total number of Ordinary Shares that would be outstanding when
Investors have fully converted their Preference Shares = P + OS + EB
Example (for illustration purposes only):
At Completion:
P = 67,269;
EB = 262,731
OS = 670,000
TSC = 1,000,000
b = (67,269 + 262,731)/1,000,000 = 33.0%
D_PF = 5% * US$5,300,000 = US$265,000
D_EB = 5% * US$20,700,000 = US$1,035,000
D_Ord = $2,639,394
(k) litigation
any Company Group member initiating or carrying on litigation or other
dispute resolution proceedings (i) which could have a material effect
on the Company Group or (ii) involves a claim in excess of RMB 10
million.
(l) connected party transactions
any transaction, loan, undertaking, warranty, guarantee or arrangement
or agreement between (i) a BVI Holdco or Founding Shareholder (or any
Connected Person of a BVI Holdco or Founding Shareholder); and (ii)
any Company Group Member save as provided in the Business Plan and the
Budget that have been approved in accordance with Clauses 4.1 and
4.2(c).
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(m) amendment of memorandum and articles
any alteration of the Memorandum and/or Articles or other
constitutional documents of any Company Group Member (save in
connection with a Listing approved by the Investors and the BVI
Holdcos in accordance with Clause 20.2.
(n) subsidiaries
any changes in the ownership of Subsidiaries (whether in a single
transaction or series of transactions and whether by way of merger,
consolidation, other business, combination or otherwise).
(o) liquidation and winding-up
any Company Group Member entering liquidation or bankruptcy
proceedings or taking any action with respect to debts due and payable
that may cause it to enter liquidation or bankruptcy proceedings;
4.3 In the event that any action is taken on any Reserved Matter by any Company
Group Member without the approval of a majority of the Board including two
Investors Directors as required under Clause 4.1, any of the Investors
shall have the right to issue notice to the Company of breach of the
relevant undertakings and demand that specified remedial action be taken by
the relevant Company Group Member(s). Such remedial action may include, at
the sole option of the Investors and without prejudice to any claim for
damages, unwinding any action taken in respect of a Reserved Matter or
relevant post-Completion undertaking. If such remedial action is not
completed within 30 days of the date of issuance of such notice, the
Investors shall have the right to redeem the Preference Shares in
accordance with Article 12(h)(iii) of the Articles.
MEETINGS OF SHAREHOLDERS
4.4 General meetings of the shareholders shall take place in accordance with
the applicable provisions of the Memorandum and Articles including on the
basis that:
(a) the quorum shall be duly authorized representatives of four
Shareholders (with one Shareholder being permitted to appoint one
representative for such meeting) shall constitute a quorum provided
that if a quorum is not present, the Shareholders meeting shall be
automatically postponed for five Business Days at the same time and
place (and notice to that effect shall be given to all Directors), and
a quorum shall be formed when any three Shareholders are present in
the manner aforesaid;
(b) the notice of meeting shall set out an agenda identifying in
reasonable detail the matters to be discussed; and
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(c) a decision to approve any of the Reserved Matters shall require the
affirmative vote of the representatives of two Investors present at
the meeting in accordance with Clause 4.1.
Any matters requiring a general meeting of or approval by the Shareholders
under relevant laws, but not covered by the Reserved Matters, shall be
dealt with in accordance with the Memorandum and Articles.
REMUNERATION COMMITTEE
4.5 The parties shall procure that:
(a) there shall be a standing committee of the Board called the
remuneration committee which shall comprise the Chairman of the Board,
one of the Investors Directors and any one other Director (other than
the Investor Directors) (the REMUNERATION COMMITTEE);
(b) the Chief Executive of the Company Group shall have a right to notice
of all meetings of the Remuneration Committee and to attend and speak
at all or any such meetings other than on matters concerning his own
remuneration but shall not be a member of the Remuneration Committee;
and
(c) the Remuneration Committee shall have the sole authority to make
determinations on all matters concerning the emoluments of the
Founding Shareholders and other managers (including, without
limitation, salary reviews and the setting of bonus levels and
performance targets).
AUDIT COMMITTEE
4.6 The parties shall procure that there shall be a further standing committee
of the Board called the audit committee which shall comprise the Chairman
of the Board, one of the Investors Directors and any one other Director
(other than the Investor Directors) (the AUDIT COMMITTEE) and that the
Audit Committee shall:
(a) review the financial statements of the Company Group Members and, as
necessary, take advice to be assured that the principles and policies
adopted comply with statutory requirements and with the best practices
in accounting standards;
(b) consult with the external auditors (and, if any, internal auditors)
regarding the extent of their work;
(c) seek to satisfy itself that the internal control and compliance
environment within the Company Group Members is adequate and
effective; and
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(d) recommend to the Board the appointment and level of remuneration
of the external auditors.
LISTING COMMITTEE
4.7 The parties shall procure that there shall be a further standing committee
of the Board called the Listing Committee which shall comprise seven
Directors including three Investors Directors (the LISTING COMMITTEE) and
that the Listing Committee shall select underwriters and financial advisers
and explore and pursue a Listing of the Company.
SUBSIDIARIES
4.8 The board of directors of the BVI Subsidiary shall consist of the same
individuals as the Board in accordance with Clause 3.2. The board of
directors of the Subsidiary shall consist of six directors including one
Investors Director. The board of directors of the Subsidiary shall decide
all matters (with the exception of matters by statute requiring a unanimous
vote) with the approval by a simple majority of directors (including one
Investors Director) either present at a meeting or by written resolution
except for items within the scope of earlier resolutions which have been
approved by the Directors which only require approval by a simple majority
of directors, provided that the relevant items are described in sufficient
detail in such earlier resolution to enable the Investors Director to give
informed consent on each item. The directors of the BVI Subsidiary and the
Subsidiary shall be appointed and removed by the Board subject to Clause
3.3.
5. INFORMATION AND REPORTING
INSPECTION AND INFORMATION
5.1 Each party may examine the separate books, records and management accounts
to be kept by each Company Group Member. The Company shall supply each
party all information, in such form as a party reasonably requires, to keep
it properly informed about the business and affairs of the Company Group
Members and generally to protect its interests as a Shareholder and, in
particular, the Company shall notify each party of any material development
to, or affecting the business of, each Company Group Member.
5.2 Each party shall be entitled, upon reasonable notice to the Company, to
inspect the facilities and premises of any Company Group Member and to
discuss the business operations, properties and financial and other
condition of any Company Group Member with its officers, employees,
directors and independent certified accountants, advisers and investment
bankers.
ACCOUNTS, BUSINESS PLAN AND BUDGETS
5.3 Without prejudice to the generality of Clause 5.1, the Company shall supply
the parties with copies of:
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(a) the annual consolidated financial statements of the Company (including
all the information contained in the Accounts), audited by a
recognized international accounting firm in a form acceptable to the
Investors and in accordance with International Accounting Standards or
generally accepted accounting principles, standards and practices in
Hong Kong within four months following the end of the period to which
such financial statements relate;
(b) each Business Plan and Budget for each Financial Year by the end of
February in that Financial Year;
(c) consolidated monthly management accounts (in English and Chinese) and
business reports (in Chinese) of the Company Group, substantially in
the form of the specimen attached as Schedule 2, prepared in
accordance with International Accounting Standards or generally
accepted accounting principles, standards and practices in Hong Kong,
to include a consolidated profit and loss account, balance sheet and
cash flow statement (including a retrospective comparison of actual
versus budgeted profit and loss and cash flow and a rolling forecast
of profit and loss and cash flow) broken down according to the
principal divisions of the Company Group and including a statement of
progress against the relevant Business Plan, within 20 days of the end
of each month to which such report relates;
(d) written details (including management's reasonable estimate of
potential liability thereunder) of any litigation or arbitration
commenced or threatened against any member of the Company Group which,
if successful, would be likely to have a material adverse effect on
the Company Group as soon as practicable after such litigation or
arbitration is threatened or commenced; and
(e) copies of all board minutes or resolutions passed by the board of
directors of any Company Group Member.
6. CONFIDENTIALITY
CONFIDENTIALITY OBLIGATION
6.1 Each of the parties shall use (and shall ensure that each of their
respective Subsidiaries shall use) all reasonable endeavors to keep
confidential (and to ensure that their respective officers, employees,
agents and professional and other advisers keep confidential) any
information:
(a) which it may have or acquire before or after the date of this
Agreement in relation to any Company Group Member's customers,
business, assets or affairs; this includes, without limitation, any
information provided pursuant to Clause 5 (Information and reporting);
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(b) which it may have or acquire before or after the date of this
Agreement in relation to the customers, business, assets or affairs of
another party resulting from:
(i) negotiating this Agreement;
(ii) being a Shareholder;
(iii) having appointees on the Board; or
(iv) exercising its rights or performing its obligations under this
Agreement; or
(c) which relates to negotiations relating to this Agreement or the
contents of this Agreement (or any agreement or arrangement entered
into pursuant to this Agreement).
Without limiting the generality of the foregoing, none of the parties shall
without the prior written approval of the others make any announcement
concerning or otherwise disclose or divulge any information concerning the
terms herein except with regard to the Investors' involvement or interest
in the Company.
EXCEPTIONS FROM CONFIDENTIALITY OBLIGATION
6.2 The obligation of confidentiality under Clause 6.1 does not apply to:
(a) the disclosure (subject to Clause 6.3) on a 'need to know' basis by a
party to a company which is a member of that Group (or a shareholder
of such member) where the disclosure is for a purpose reasonably
incidental to this Agreement;
(b) information which is independently developed by the relevant party or
acquired from a third party to the extent that it is acquired with the
right to disclose the same;
(c) the disclosure of information to the extent required to be disclosed
by law, any stock exchange regulation or any binding judgment, order
or requirement of any court or other competent authority;
(d) the disclosure of information to any tax authority to the extent
reasonably required for the purposes of the tax affairs of the party
concerned or any member of its Group;
(e) the disclosure (subject to Clause 6.3) in confidence to a party's
professional advisers of information reasonably required to be
disclosed for a purpose reasonably incidental to this Agreement or for
the purpose of assessing such person's investment in the Company
Group;
(f) the disclosure of information to lenders;
19
(g) information which becomes within the public domain (otherwise than as
a result of a breach of this Clause 6);
(h) any announcement made in accordance with the terms of Clause 22
(Counterparts);
(i) information disclosed by any Investor (or its fund manager) for the
purposes of fund reporting or inter-fund reporting or to its fund
manager and its respective affiliates, advisers, consultants,
auditors, directors, officers, employees, shareholders, investors or
insurers;
(j) information disclosed by any Investor to a bona fide proposing
investor of any class of shares (including without limitation a Sale
as defined in the Articles) provided that such Investor shall provide
a confidentiality undertaking in favor of the Company in the agreed
form; or
(k) information disclosed by any Director to its appointor or any of its
affiliates or otherwise in accordance with the foregoing provisions of
this Clause 6.2.
EMPLOYEES, AGENTS AND ADVISERS
6.3 Each of the parties shall inform (and shall ensure that any subsidiaries of
it shall inform) any officer, employee or agent or any professional or
other adviser advising it in relation to the matters referred to in this
Agreement, or to whom it provides Confidential Information, that such
information is confidential and shall instruct them:
(a) to keep it confidential; and
(b) not to disclose it to any third party (other than those persons to
whom it has already been disclosed in accordance with the terms of
this Agreement).
The disclosing party is responsible for any breach of this Clause 6 by the
person to whom the Confidential Information is disclosed.
RETURN OF CONFIDENTIAL INFORMATION
6.4 If this Agreement terminates, each party may by notice require the others
to return the first party's Confidential Information. If so, each other
party shall (and shall ensure that its subsidiaries and its officers and
employees and those of its subsidiaries shall) return all original written
documents containing Confidential Information which have been provided by
or on behalf of the party demanding the return of Confidential Information
(save, in each case, as required by law or regulation, for any submission
to or filings with governmental, tax or regulatory authorities). The other
party shall return or destroy the Confidential Information as soon as
practicable after receiving notice.
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SURVIVAL AFTER TERMINATION
6.5 The provisions of this Clause 6 shall continue to apply for two years after
termination of this Agreement.
INTELLECTUAL PROPERTY
6.6 Any Intellectual Property Rights created by the Company Group are to be
owned by the Company Group whether the creation thereof has been
contributed to by a party or otherwise. The Company, each of the BVI
Holdcos, each of the Founding Shareholders, the BVI Subsidiary and the
Subsidiary undertake to take all reasonable steps to protect the
Intellectual Property Rights (whether owned, licensed or otherwise) of any
Company Group Member which may include the registration of such
Intellectual Property Rights with government departments or authorities in
all relevant countries.
7. RELATIONSHIP WITH THE FOUNDING SHAREHOLDERS AND THE INVESTORS
PROMOTION OF THE COMPANY GROUP'S INTEREST
7.1 The parties confirm their intention to promote the best interests of the
Company Group and to consult fully on all matters materially affecting the
development of the business of the Company Group. Each party shall act in
good faith towards the other in order to promote the success of the Company
Group.
NEW SHAREHOLDERS
7.2 Notwithstanding any other provision of this Agreement, the parties agree
that no person shall become a holder of Shares (whether by way of
subscription, transfer or otherwise, or indirectly through a Change of
Control of a BVI Holdco) unless it has agreed to be bound by the continuing
provisions of this Agreement.
RESTRICTIONS ON OTHER BUSINESS INTERESTS
7.3 Each Founding Shareholder undertakes and covenants that during his
Employment he will not directly or indirectly:
(a) be employed, engaged, concerned or interested in any other business or
undertaking (except as provided in Clause 7.4); or
(b) engage in any activity which the Board reasonably considers may be, or
become, harmful to the interests of the Company or of any Company
Group Member or which might reasonably be considered to interfere with
the performance of his duties under his Employment Agreement with the
Company.
21
7.4 Neither Mr. Gao Yingjie nor Guoren Industrial Developments Limited will,
while Guoren Industrial Developments Limited or its Permitted Transferee
(as defined in the Memorandum and Articles) holds Shares, make any
investment in any other company which competes with any Company Group
Member in excess of 3% of the total issued share capital of such company.
Neither Mr. Zhuang Kunjie nor Drag Investments Limited will, while Drag
Investments Limited or its Permitted Transferee (as defined in the
Memorandum and Articles) holds Shares, make any investment in any other
company which competes with any Company Group Member in excess of 3% of the
total issued share capital of such company.
RESTRICTION ON COMPETITION ETC. AFTER TERMINATION OF EMPLOYMENT
7.5 Each Founding Shareholder undertakes and covenants with each Investor that
he shall not, whether directly or indirectly, on his own behalf or on
behalf of or in conjunction with any other person, firm, company or other
entity:
(a) for the period of two years (subject to Clause 7.6) following the
Termination Date of his Employment Agreement, solicit or entice away
or endeavor to solicit or entice away from any Company Group Member
any person, firm, company or other entity who is, or was, in the three
years immediately prior to the Termination Date, a client of any
Company Group Member with whom the Founding Shareholder had business
dealings during the course of his employment in that three year
period. Nothing in this Clause 7.5(a) shall prohibit the seeking or
doing of business not in direct or indirect competition with the
business of the Company Group;
(b) for the period of two years (subject to Clause 7.6) following the
Termination Date, solicit or entice away or endeavor to solicit or
entice away from any Company Group Member any person, firm, company or
other entity who is, or was, in the three years immediately prior to
the Termination Date, a prospective client of such Company Group
Member. For the purposes of this Clause 7.5(b) and Clause 7.5(d) the
term "prospective client" shall mean any person, firm, company or
other entity which was, in the three years immediately prior to the
Termination Date, being actively solicited or responded positively to
canvassing by any Company Group Member and with which solicitation the
Founding Shareholder was personally involved during the course of his
employment in that three year period. Nothing in this Clause 7.5(b)
shall prohibit the seeking or doing of business not in direct or
indirect competition with the business of the Company Group;
(c) for the period of two years (subject to Clause 7.6) following the
Termination Date, have any business dealings with any person, firm,
company or other entity who is, or was, in the three years immediately
prior to the Termination Date, a client of any Company Group Member
with whom the Founding Shareholder had business dealings during the
22
course of his employment in that three year period. Nothing in this
Clause 7.5(c) shall prohibit the seeking or doing of business not in
direct or indirect competition with the business of the Company Group;
(d) for the period of two years (subject to Clause 7.6) following the
Termination Date, have any business dealings with any person, firm,
company or other entity who is, or was, in the three years immediately
prior to the Termination Date, a prospective client of any Company
Group Member with whom the Founding Shareholder had business dealings
during the course of his employment in that three year period. Nothing
in this Clause 7.5(d) shall prohibit the seeking or doing of business
not in direct or indirect competition with the business of the Company
Group;
(e) for the period of two years (subject to Clause 7.6) following the
Termination Date, solicit or entice away or endeavor to solicit or
entice away any individual who is employed or engaged by any Company
Group Member as a director or in a managerial, executive or technical
capacity and with whom the Founding Shareholder had business dealings
during the course of his employment in the three year period
immediately prior to the Termination Date;
(f) for the period of two years (subject to Clause 7.6) following the
Termination Date, employ or engage, whether on an employed or
self-employed basis or in any other office or capacity, any individual
who is employed or engaged by any Company Group Member as a director
or in a managerial, executive or technical capacity and with whom the
Founding Shareholder had business dealings during the course of his
employment in the three year period immediately prior to the
Termination Date; and
(g) for the period of two years (subject to Clause 7.6) following the
Termination Date, carry on, set up, be employed, engaged or interested
in a business anywhere in the PRC, including but not limited to
Competitors (as defined in the Memorandum and Articles), which is or
is about to be in competition with the business of the Company Group
as at the Termination Date. It is agreed that in the event that any
such company ceases to be in competition with the Company Group this
Clause 7.5(g) shall, with effect from that date, cease to apply in
respect of such company. The provisions of this Clause 7.5(g) shall
not, at any time following the Termination Date, prevent the Founding
Shareholder from holding shares or other capital not amounting to more
than 3% of the total issued share capital of any company whether
listed on a regulated market or not and, in addition, shall not
prohibit the seeking or doing of business not in direct or indirect
competition with the business of the Company Group.
23
7.6 The period during which the restrictions referred to in Clauses 7.5(a) to
(g) inclusive shall apply following the Termination Date shall be reduced
by the amount of time during which, if at all, the Company suspends the
Founding Shareholder under the provisions of his Employment Agreement.
7.7 The Founding Shareholders agree that if, during either the term of his
employment with the Company or the period of the restrictions set out in
Clauses 7.5(a) to (g) inclusive he receives an offer of employment or
engagement, he will provide a copy of this Clause 7 to the offeror as soon
as is reasonably practicable after receiving the offer and will inform the
Investors of the identity of the offeror as soon as possible after the
offer is accepted.
7.8 Each Founding Shareholder undertakes and covenants that at no time after
the termination of his employment with the Company shall he directly or
indirectly represent himself as being interested in or employed by or in
any way connected with any Company Group Member, other than as a former
director or employee of a Company Group Member and (where applicable) as a
shareholder or former shareholder of the Company.
7.9 Each Founding Shareholder agrees that the restrictions imposed on him by
this Clause 7 extend to any actions by the Founding Shareholder:
(a) on his own account;
(b) on behalf of any firm, company or other person;
(c) whether alone or jointly with any other person; or
(d) as a director, manager, partner, shareholder, employee or consultant
of any other person.
7.10 Each Founding Shareholder agrees that, having regard to all the
circumstances, the restrictions in this Clause 7 are reasonable and
necessary but no more than sufficient for the protection of each of the
Investors and that they do not bear harshly on him. The parties agree that:
(a) each restriction shall be read and construed independently of the
other restrictions so that if one or more are found to be void or
unenforceable as an unreasonable restraint of trade or for any other
reason the remaining restrictions shall not be affected; and
(b) if any restriction is found to be void but would be valid and
enforceable if some part of it were deleted, the restriction shall
apply with the deletions that are necessary to make it valid and
enforceable.
8. TRANSFER OF SHARES
8.1 The Company and each BVI Holdco, Founding Shareholder and Investor
undertake to observe and abide by the restrictions specified in the
Articles (to
24
the extent applicable to such party as specified in the Articles) with
respect to transfer of Shares.
9. FURTHER ASSURANCES
EXERCISE OF RIGHTS AND POWERS
9.1 So far as it is legally able, each party agrees to exercise all voting
rights and powers (direct or indirect) available to it in relation to any
person and/or the Company to ensure that the provisions of this Agreement
are completely and punctually fulfilled, observed and performed and
generally that full effect is given to the principles set out in this
Agreement.
PERFORMANCE BY SUBSIDIARIES
9.2 Each party shall ensure that its subsidiaries perform:
(a) all obligations under this Agreement which are expressed to relate to
its respective subsidiary (whether as Shareholders or otherwise); and
(b) all obligations under any agreement entered into by any of its
subsidiaries pursuant to this Agreement.
The liability of a party under this Clause 9.2 shall not be discharged or
impaired by any amendment to or variation of this Agreement, any release of
or granting of time or other indulgence to any of its subsidiaries or any
third party or any other act, event or omission which but for this Clause
would operate to impair or discharge the liability of such party under this
Clause 9.2.
10. NON-ASSIGNMENT
10.1 No party shall, nor shall purport, to assign, transfer, charge or otherwise
deal with all or any of its rights and/or obligations under this Agreement
nor grant, declare, create or dispose of any right or interest in it, or
sub-contract the performance of any of its obligations under this Agreement
in whole or in part (other than pursuant to a transfer of Shares to a third
party in accordance with the terms of this Agreement and the Articles and,
in the case of the Investors, to a member of its Group) or to its fund
manager, other fund(s) managed by its fund manager.
10.2 Notwithstanding Clause 10.1, any rights of JATF under this Agreement may,
without prejudice to the rights of JATF to exercise any such rights, be
exercised by JAFCO Investment (Asia Pacific) Ltd. (JIAP) or any other fund
manager of JATF or their nominees (JATF MANAGER), unless JATF has (i) given
notice to the other parties that any such rights cannot be exercised by
JIAP or a JATF Manager and (ii) not given notice to the other parties that
such notice which is given under this Clause 10.2 has been revoked.
10.3 Notwithstanding Clause 10.1, Standard Chartered Bank (SCB) acts as an agent
in the capacity of Fund Manager for Standard Chartered Private Equity Ltd.
25
For the purposes of Section 118 of the Securities and Futures Act, this
Agreement constitutes a contract note provided in the name of SCB. SCB's
principal place of business, for the purposes of this Agreement, is 6
Battery Road, Singapore 049909.
10.4 Notwithstanding Clause 10.1, any or all of the rights, powers, discretions
and consent of any Investor under this Agreement may be delegated to and/or
exercised by an investment manager, investment adviser or general partner
authorized from time to time to act on behalf of such Investor and/or by
some other person or persons nominated by such Investor for the time being.
10.5 Notwithstanding any provision to the contrary contained herein, any
Investor may transfer any of its rights and/or obligations under this
Agreement (with or without a transfer of Shares) to one or more Permitted
Transferees provided only that such transfer is not made to a Competitor.
Permitted Transferee for the purposes of this Clause 10.5 only, means the
following:
(a) Any holding company or subsidiary of such Investor or a subsidiary of
any such holding company or any partnership which is a subsidiary
undertaking of such Investor or of any such holding company (each such
entity being referred to as a "Member of the Investor Group"). The
terms "holding company", "subsidiary" and "subsidiary undertaking"
shall, for the purposes of this Clause 10.5 only, have the meanings
given to them in the English Companies Act 1985;
(b) any investment fund:
(i) in which such Investor or a Member of the Investor Group has made
an investment equal to at least 10 percent of the total
commitments to the fund; or
(ii) which is managed by such Investor or a Member of the Investor
Group or of which such Investor or a Member of the Investor Group
is general partner or investment adviser;
(c) any unitholder, shareholder, partner or participant in any fund
referred to in (b) above;
(d) any manager, general partner or investment adviser of any fund
referred to in (b) above (or any officer, employee or partner of any
such manager, general partner or investment adviser);
(e) a trust for the benefit of any officer, employee or partner referred
to in (d) above (and/or his or her family members); and
(f) any trustee, nominee or custodian of any person referred to in (a)-(e)
above.
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11. WAIVER OF RIGHTS
11.1 No waiver by a party of a failure by another party to perform any provision
of this Agreement operates or is to be construed as a waiver in respect of
any other failure whether of a like or different character.
12. AMENDMENTS
12.1 A variation of this Agreement is valid only if it is in writing and signed
by or on behalf of each party (except that a variation of any provision of
this Agreement which only affects the respective rights and obligations of
the Founding Shareholders, the BVI Holdcos and the Investors as between
themselves does not need the Company's agreement).
13. INVALIDITY
13.1 If any provision of this Agreement is or is held to be invalid or
unenforceable, then so far as it is invalid or unenforceable it has no
effect and is deemed not to be included in this Agreement. This shall not
invalidate any of the remaining provisions of this Agreement. The parties
shall then use all reasonable endeavors to replace the invalid or
unenforceable provision by a valid provision the effect of which is as
close as possible to the intended effect of the invalid or unenforceable
provision.
14. NO PARTNERSHIP OR AGENCY
14.1 Nothing in this Agreement (or any of the arrangements contemplated by it)
is or shall be deemed to constitute a partnership between the parties nor,
except as may be expressly set out in it, constitute either party the agent
of the other for any purpose.
14.2 Unless the parties agree otherwise in writing, none of them shall:
(a) enter into any contracts or commitments with third parties as agent
for any Company Group Member or for the other party; or
(b) describe itself as such an agent or in any way hold itself out as
being such an agent.
15. ANNOUNCEMENT
15.1 No formal public announcement or press release in connection with the
signature or subject matter of this Agreement shall (subject to Clause
22.2) be made or issued by or on behalf of any of the Founding
Shareholders, BVI Subsidiary, the BVI Holdcos or the Company or any of
their respective Subsidiaries without the prior written approval of the
other parties (such approval not to be unreasonably withheld or delayed).
15.2 If a Founding Shareholder, BVI Holdco, the BVI Subsidiary or the Company
has an obligation to make or issue any announcement required by law or by
any stock exchange or by any governmental authority, the relevant party
shall
27
give the other parties every reasonable opportunity to comment on any
announcement or release before it is made or issued (provided that this
shall not have the effect of preventing the party making the announcement
or release from complying with its legal and/or stock exchange
obligations).
16. COSTS
16.1 Each party shall bear its own costs and expenses incurred in connection
with negotiating, preparing and implementing this Agreement and the
transactions contemplated by it.
17. ENTIRE AGREEMENT
17.1 This Agreement sets out the entire agreement and understanding between the
parties with respect to the subject matter hereof. This Agreement
supersedes any and all previous agreements, discussions and understandings
with respect to the subject matter hereof, except for matters contained in
the Subscription and Shareholders Agreement dated 17 December 2003, which
are not covered herein.
17.2 No party has relied or has been induced to enter into this Agreement in
reliance on any representation, warranty or undertaking which is not set
out in this Agreement.
17.3 Liability for fraudulent misrepresentation is not excluded.
18. CONFLICT WITH MEMORANDUM AND ARTICLES
SUPREMACY OF THIS AGREEMENT
18.1 If the provisions of this Agreement conflict with the Memorandum and
Articles or the constitutional documents of any Company Group Member, the
provisions of this Agreement shall prevail as between the parties. The
parties shall:
(a) exercise all voting and other rights and powers available to them to
give effect to the provisions of this Agreement; and
(b) (if necessary) ensure that any required amendment is made to the
Memorandum and Articles and/or constitutional document of any other
Company Group Member.
NO FETTER ON THE COMPANY
18.2 The Company is not bound by any provision of this Agreement to the extent
that it constitutes an unlawful fetter on any statutory power of the
Company. This shall not affect the validity of the relevant provision as
between the other parties to this Agreement or the respective obligations
of the other parties as between themselves under Clause 16.1.
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19. TERMINATION OF AGREEMENT
DURATION
19.1 Unless otherwise provided in this Agreement, this Agreement shall continue
in full force and effect for so long as the Investors or any member of any
Investors Group holds Shares. If as a result of any issue, sale or disposal
made in accordance with this Agreement, no Shares are so held, then this
Agreement shall terminate and cease to be of any effect. This Agreement
shall also terminate upon completion of a Listing notwithstanding that any
Investors Group hold Shares. This shall not:
(a) relieve any party from any liability or obligation for any matter,
undertaking or condition which has not been done, observed or
performed by that party before such termination;
(b) affect the terms of any agreement replacing this Agreement entered
into by the parties, or any successor of any of them holding Shares;
or
(c) affect the terms of Clause 6 (Confidentiality) of this Agreement.
LIQUIDATION
19.2 This Agreement shall also terminate upon a resolution being passed to wind
up the Company. In such event:
(a) each of the parties shall co-operate (but without any obligation to
provide any additional finance) with a view to enabling all existing
obligations of the Company Group to be completed insofar as its
resources allow. The parties shall consult together with a view to
novating or re-allocating outstanding contracts within the Business in
a suitable manner;
(b) the Company Group shall not assume any new contractual obligation for
the supply of products or services; and
(c) unless the parties agree otherwise, the parties shall ensure that the
Company is wound up as soon as practicable.
20. EXIT
LISTING
20.1 Each of the parties confirms its intention to effect a Listing within three
years from Completion.
20.2 Each of the Company, the BVI Subsidiary, the Subsidiary, and each BVI
Holdco, Founding Shareholder and Investor agrees to take all necessary
action as shall reasonably be requested by the Founding Shareholders to
achieve a Listing that has been approved by the BVI Holdcos with Investor
Consent, including, without limitation, assisting in the production of such
29
documentation as is required to effect a Listing, providing reasonable
assistance to those third party advisers advising the Company or Investors
in relation to a Listing or potential Listing, agreeing to such
undertakings in relation to the retention, disposal or manner of disposal
of their Shares or securities received as consideration for Shares (known
as "lock-ups") as are considered by the financial advisers in relation to
such Listing necessary or desirable in connection with a Listing and
agreeing to such warranties as are reasonably required in relation to a
Listing.
20.3 Investor Consent shall be deemed to have been given with respect to such
Listing if criterion (i) or (ii) in the Listing Conditions can be achieved.
20.4 Without limiting the generality of Clause 18.2, each of the parties agrees
that subject to completion of a Listing, any Shares held directly or
indirectly by the BVI Holdcos or the Founding Shareholders or any of their
Permitted Transferees (as defined in the Memorandum and Articles) shall be
subject to a lock-up period of 12 months after the expiry of the longest
lock-up period required of the Investors by the underwriters save that Heng
Xing Yue Investments Limited, upon the expiry of the longest lock-up period
required of an Investor by the underwriters, shall be permitted to dispose
of such number of shares of the Company which are the subject of the
Listing that will be derived from 8% of the Ordinary Shares that are issued
and outstanding as of the date immediately after Completion (as calculated
prior to (i) any conversion of Preference Shares and (ii) any issue of new
Ordinary Shares as a non-Reserved Matter under Clause 4.2(a)).
20.5 The parties acknowledge and accept that at the time of a Listing, the
Investors will not give:
(a) warranties, representations or any other form of undertaking in
respect of the Company's affairs or otherwise (save that, if so
requested by the purchaser or any underwriter, they will give a
warranty and representation that they have good title to their
Shares); or
(b) lock-ups in relation to any Shares other than as may be required by
statute or by the relevant stock exchange or the underwriters.
20.6 Each of the Investors confirms its intention to arrange as part of a
Listing the placing of part of the Ordinary Shares derived from the
Preference Shares and/or the Exchangeable Bonds held by them subject to (i)
the Board's approval and (ii) the agreement of the underwriters, with the
Investors to have priority over the other Shareholders in the disposal of
such Shares.
GENERAL
20.7 The parties will procure, so far as they are able, that the provisions of
this Agreement shall be applied in relation to any transfer, or proposed
transfer, of Shares in the Company or any interest in those Shares.
30
21. JOINT AND SEVERAL
21.1 The Investors' obligations under this Agreement are several and not joint.
The obligations of the Company, the BVI Subsidiary, the Subsidiary and each
Founding Shareholder and BVI Holdco are joint and several except where
expressly indicated otherwise.
22. NOTICES
NOTICES
22.1 Any notice or other formal communication to be given under this Agreement
shall be in writing and signed by or on behalf of the party giving it. It
shall be:
(a) delivered by hand; or
(b) sent by (i) registered mail to him at his last known address or such
other address (if any) as may for the time being be notified by him or
on his behalf to the Company for that purpose and (ii) facsimile or
other electronic communication,
in each case, it shall be marked for the attention of the relevant party
set out in Clause 20.2 (or as otherwise notified from time to time under
this Agreement). Any notice given by hand delivery, fax or post shall be
deemed to have been duly given:
(a) if hand delivered, when delivered;
(b) Notice by means of registered mail and electronic communication shall
be deemed sent on the latter of (i) the date of transmission of a
facsimile or other electronic communication and (ii) three Business
Days after the date of postage on registered mail.
ADDRESS OF NOTICES
22.2 The addresses and fax numbers of the parties for the purpose of Clause 20.1
are:
(a) CHINA GRENTECH CORPORATION LIMITED
Address: 16/F Zhongyin Tower, Caitian Road, Futian District,
Shenzhen, the PRC
Fax No: (86 755) 8350 1530
For the attention of: Mr. GAO Yingjie / Mr. LIU Qingchang
(b) GRENTECH (BVI) LIMITED
Address: 16/F Zhongyin Tower, Caitian Road, Futian District,
Shenzhen, the PRC
31
Fax No: (86 755) 8350 1530
For the attention of: Mr. GAO Yingjie / Mr. LIU Qingchang
(c) SHENZHEN GRENTECH COMPANY LIMITED:
Address: 16/F Zhongyin Tower, Caitian Road, Futian District,
Shenzhen, the PRC
Fax No: (86 755) 8350 1530
For the attention of: Mr. GAO Yingjie / Mr. LIU Qingchang
(d) ACTIS CHINA INVESTMENT HOLDINGS NO. 1 LIMITED:
Address: Les Cascades,
Edith Cavell Street,
Port Louis, Mauritius
Fax: +230-212-9833
For the attention of: Yannick Roussety
with a copy to: Actis China Limited
Beijing Representative Office
712, China World Tower 2
1 Jianguomenwai Dajie
Chaoyang District
Beijing 100004, China
For the attention of: Bay Chong Chin and Benjamin Cheng
Fax No: 8610-6505-8111
(e) STANDARD CHARTERED PRIVATE EQUITY LIMITED:
Address: 5/F, 6 Battery Road #05-00
Singapore 049909
Fax No: 65 6227-7028
For the attention of: Head of Global Private Equity
(f) JAFCO ASIA TECHNOLOGY FUND
c/o JAFCO Investment (Asia Pacific) Ltd.
Address: 6 Battery Road
#42-01 Singapore 049909
Fax No: +65 6221-3690
32
For the attention of: The President
Copied to:
JAFCO Investment (Hong Kong) Ltd.
30/F, Two International Finance Centre
8 Finance Street
Central, Hong Kong
Fax No: +852 2536-1979
For the attention of: The General Manager
(g) MR. GAO YINGJIE / GUOREN INDUSTRIAL DEVELOPMENTS LIMITED:
Address: 16/F Zhongyin Tower, Caitian Road, Futian District,
Shenzhen, the PRC
Fax No: (86 755) 8350 1530
For the attention of: Mr. GAO Yingjie
(h) MR. ZHUANG KUNJIE / DRAG INVESTMENTS LIMITED:
Address: Level 9, No. 3 Building East, SEG Science &
Technology Industrial Park, Huaqiang Road North,
Futian District, Shenzhen, the PRC
Fax No: (86 755) 332 4074
For the attention of: Mr. ZHUANG Kunjie
(i) HENG XING YUE INVESTMENTS LIMITED:
Address: 16/F Zhongyin Tower, Caitian Road, Futian District,
Shenzhen, the PRC
Fax No: + (86 755) 8350 1530
For the attention of: Ms. Huang Yin
CHINESE LANGUAGE
22.3 All notices or formal communications under or in connection with this
Agreement shall be in either English or Chinese or, if in any other
language, accompanied by a translation into English.
33
23. SETTLEMENT OF DISPUTES
23.1 If any dispute between the parties arises in connection with this
Agreement, they shall use all reasonable endeavors to resolve the matter
amicably. If one party gives another notice that a material dispute has
arisen and those parties are unable to resolve the dispute within 30 days
of service of the notice, then the dispute shall be referred to arbitration
in accordance with Clause 21.2.
ARBITRATION
23.2 All disputes arising out of or in connection with this Agreement shall be
finally settled under the Rules of Arbitration of the International Chamber
of Commerce by three arbitrators appointed in accordance with the said
Rules. The place of arbitration shall be in Hong Kong. The language of the
arbitration shall be English.
24. COUNTERPARTS AND LANGUAGE
24.1 This Agreement may be executed in any number of counterparts and by the
parties to it on separate counterparts, each of which shall be an original
but all of which together shall constitute one and the same instrument.
24.2 This Agreement is executed in English with translated Chinese drafts used
during negotiations for reference only and have no legal effect.
25. GOVERNING LAW
25.1 This Agreement shall be governed by and construed in accordance with the
laws of Hong Kong.
26. AGENT FOR SERVICE OF PROCESS
26.1 Each of the Parties (other than Actis) to this Agreement shall at all times
maintain an agent for service of process and any other documents in
proceedings in Hong Kong or any other proceedings in connection with this
Agreement. Any writ, judgment or other notice of legal process shall be
sufficiently served on the relevant party if delivered to such agent at its
address for the time being. If the agent at any time ceases for any reason
to act as such, each of the Parties shall appoint a replacement agent
having an address for service in Hong Kong and shall notify the other
parties of the name and address of the replacement agent. Failing such
appointment and notification, the Investors shall be entitled by notice to
the relevant party(ies) to appoint a replacement agent to act on the
relevant party's/parties' behalf. The provisions of this Clause applying to
service on an agent apply equally to service on a replacement agent.
34
AS WITNESS this Agreement has been signed by the duly authorized representatives
of the parties the day and year first before written.
SIGNED by /s/ Gao Yingjie
---------------------------
for and on behalf of
CHINA GRENTECH CORPORATION LIMITED
in the presence of: /s/ Yu Rong
SIGNED by /s/ Gao Yingjie
---------------------------
for and on behalf of
GRENTECH (BVI) LIMITED
in the presence of: /s/ Yu Rong
SIGNED by /s/ Gao Yingjie
---------------------------
for and on behalf of
SHENZHEN GRENTECH COMPANY LIMITED.
in the presence of: /s/ Yu Rong
SIGNED by /s/ Ashraf Ramtoola
---------------------------
for and on behalf of
ACTIS CHINA INVESTMENT HOLDINGS NO. 1 LIMITED
in the presence of: /s/ Kamalam Pillay Rungapadiachy
SIGNED by /s/ Alastair Morrison
---------------------------
for and on behalf of
STANDARD CHARTERED PRIVATE EQUITY LIMITED
in the presence of: /s/ Andrew Dawson
SIGNED by /s/ Vincent Chan Chun Hung
---------------------------
for and on behalf of
JAFCO ASIA TECHNOLOGY FUND
in the presence of: /s/ Wong Yun Pun
SIGNED by /s/ Gao Yingjie
---------------------------
for and on behalf of
GAO YINGJIE
in the presence of: /s/ Yu Rong
SIGNED by /s/ Huang Yin
---------------------------
for and on behalf of
HENG XING YUE INVESTMENTS LIMITED
in the presence of: /s/ Yu Rong
SIGNED by /s/ Zhuang Kunjie
---------------------------
for and on behalf of
ZHUANG KUNJIE
in the presence of: /s/ Chen Ming
SIGNED by /s/ Zhuang Kunjie
---------------------------
for and on behalf of
DRAG INVESTMENTS LIMITED
in the presence of: /s/ Chen Ming
SIGNED by /s/ Gao Yingjie
---------------------------
for and on behalf of
GUOREN INDUSTRIAL DEVELOPMENTS LIMITED
in the presence of: /s/ Yu Rong
35
SCHEDULE 1
DEED OF ADHERENCE
THIS DEED is made on the _____ of _____ 200__ by [_] (the SUBSCRIBER).
THIS DEED WITNESSES as follows:
1. The Subscriber confirms that it has read a copy of an agreement dated _____
_____ 2005 made between (1) the COMPANY, (2) GrenTech (BVI) Limited, (3)
Shenzhen GrenTech Company Limited, (4) Actis China Investment Holdings No.1
Limited, Standard Chartered Private Equity Limited and JAFCO Asia Technology
Fund (therein referred to as the INVESTORS), (5) Heng Xing Yue Investments
Limited, Drag Investments Limited and Guoren Industrial Developments Limited
(therein referred to as the BVI HOLDCOS) and (6) Mr. Gao Yingjie and Mr. Zhuang
Kunjie (which agreement is herein referred to as the AMENDED AND RESTATED
SHAREHOLDERS AGREEMENT) and hereby covenants to each of the persons referred to
in Clause 2(a) and (b) to be bound by the Amended and Restated Shareholders
Agreement in all respects as if the Subscriber were a party to the Amended and
Restated Shareholders Agreement as one of the [DELETE AS APPROPRIATE]
Investors/BVI Holdcos and to perform all the obligations imposed on such a party
to the Amended and Restated Shareholders Agreement, to be performed on, as on,
or after the date hereof.
2. This Deed is made for the benefit of:
(a) the parties to the Amended and Restated Shareholders Agreement as at the
date of the Amended and Restated Shareholders Agreement; and
(b) any other person or persons who may after the date of the Amended and
Restated Shareholders Agreement (and whether prior to or after the date
hereof) assume any rights or obligations under the Amended and Restated
Shareholders Agreement and be permitted to do so by the terms thereof.
3. Save as expressly set out in the Amended and Restated Shareholders Agreement,
in favor of the Subscriber, none of the parties to the Amended and Restated
Shareholders Agreement:
(a) makes any representations or warranty or assumes any responsibility with
respect to the legality, validity, effectiveness, adequacy or
enforceability of the Amended and Restated Shareholders Agreement or any
agreement entered into pursuant thereto;
(b) makes any representation or warranty or assumes any responsibility with
respect to the content of any information regarding the Company or any
member of the Group or otherwise related to the acquisition of Shares; or
(c) assumes any responsibility for the financial condition of the Company or
any member of the Group or any other party to the Amended and Restated
Shareholders Agreement or any other document; or
36
(d) assumes any responsibility for the performance and observance by the
Company or any other party to the Amended and Restated Shareholders
Agreement or any other document (save as expressly provided therein) of the
Amended and Restated Shareholders Agreement or any other document,
and any and all conditions and warranties, whether express or implied by law or
otherwise, are to the extent legally possible excluded.
For the purposes of the Amended and Restated Shareholders Agreement, the
Subscriber's address and other details for notices shall be:
Address: [ ]
Fax number: [ ]
For the attention of: [ ]
4. Words and expressions defined in the Amended and Restated Shareholders
Agreement shall bear the same meanings herein.
5. This Deed shall be governed by and construed in accordance with the laws of
Hong Kong. DULY DELIVERED as a Deed on the date and year first above written.
EXECUTED )
AND DELIVERED as a DEED by )
[INSERT NAME OF SUBSCRIBER] )
acting by two directors/a director and the secretary )
[EXECUTION BLOCK TO BE AMENDED TO REFLECT NATURE OF SUBSCRIBER]
[SIGNED by [ ] )
in the presence of: )]
[SIGNED by [ ] and )
[ ] for and on behalf )
of the Company )]
37
SCHEDULE 2
SPECIMEN OF CONSOLIDATED MONTHLY MANAGEMENT ACCOUNTS AND BUSINESS REPORTS
38