Further Undertakings. 8.1 The Company undertakes with the Sole Sponsor that it shall do all such acts and things and execute all documents as may be required under the Applicable Laws or by the Stock Exchange in connection with the Main Board Listing Application (including, in the case of the Company, effecting all necessary filings with the Stock Exchange and ensuring that each of the Directors shall sign or cause to be duly signed on their behalf all documents required to be signed by them as Directors for the purposes of or in connection with the Transfer of Listing or such filings). 8.2 The Company undertakes to the Sole Sponsor that the Company shall: (a) comply with the Main Board Listing Rules and the GEM Listing Rules in relation to any supplemental listing document to the Listing Document and further agrees, except for the Listing Documentation or except as otherwise provided pursuant to the provisions of this Agreement or as required by Applicable Laws or the Stock Exchange, not to issue, publish, distribute or make available directly or indirectly to the public any document (including any listing document, announcement, supplement, circular and press release), material or information in connection with the Transfer of Listing, or make any amendment to any of the Listing Documentation, or any amendment or supplement thereto at any time prior to the expiry of the period of six months from the Transfer Date (excluding, for the avoidance of doubt, any document, material or information which may be connected with the Transfer of Listing solely because it extracts, reproduces or contains references to the Transfer of Listing, the Listing Documentation or information contained therein) without the prior written consent of the Sole Sponsor (which consent shall not be unreasonably withheld or delayed); procure the Hong Kong Share Registrar to do all such acts and things as may be required to be done by it in connection with the Transfer of Listing and the transactions contemplated herein and shall procure that such appointment shall not be amended or terminated before completion of the Transfer of Listing without the prior written consent of the Sole Sponsor; (b) use its reasonable endeavours to procure that the Company will maintain a listing for, and will refrain from taking any action that could jeopardise the listing status of, the Shares on the Main Board of the Stock Exchange for not less than six months after the Transfer Date, except following a withdrawal of such listing which has been approved by the relevant shareholders of the Company in accordance with the Main Board Listing Rules or following an offer (within the meaning of the Hong Kong Code on Takeovers and Mergers issued by the SFC) for the Company becoming unconditional; (c) the Company shall comply with all Applicable Laws (including, without limitation and for the avoidance of doubt, the rules, regulations and requirements of the Stock Exchange and any other Governmental Authority) including, without limitation: (i) (A) comply with the Stock Exchange’s rules or other requirements to publish and disseminate to the public, under certain circumstances, information affecting any financial information in the Listing Document, and (B) announce in an announcement any information so required by the Stock Exchange to be published and disseminated to the public in connection with the Transfer of Listing at any time prior to the expiry of the period of six months from the Transfer Date (in the case after the Transfer of Listing, excluding, for the avoidance of doubt, any document, material or information which may be connected with the Transfer of Listing solely because it extracts, reproduces or contains references to the Transfer of Listing, the Listing Documentation or information contained therein), provided, however, that no such announcement shall be issued by the Company without having been submitted to the Sole Sponsor for their review not less than two Business Days prior to such issuance, or such lesser period of time as is necessary for the Company to avoid violation of any Applicable Laws, and (c) comply with the applicable CSRC Rules and where applicable, make all necessary filings (including the CSRC Filings) and obtain all necessary Approvals required under the CSRC Filings; (ii) deliver to the Stock Exchange the declaration substantially in the form set out in Appendix 5, Form F of the Main Board Listing Rules; (iii) providing to the Sole Sponsor any such other resolutions, consents, authorities, documents, opinions and certificates which are relevant in the context of the Transfer of Listing owing to circumstances arising or events occurring after the date of this Agreement but before 8:00 a.m. on the Transfer Date and as the Sole Sponsor may reasonably require; and (iv) complying with all the undertakings and commitments made by it in the Listing Document and shall use its best endeavours to procure the Directors to comply with all the undertakings and commitments by the Directors in the Listing Document; (d) shall not, at any time after the date of this Agreement up to the Transfer Date, amend or agree to amend the Articles of Association save as requested by the Stock Exchange or to comply with the requirements under the Main Board Listing Rules, the GEM Listing Rules or Applicable Laws; (e) shall not, and procure that no other member of the Group will: (i) at any time after the date of this Agreement up to the Transfer Date, do or omit to do anything which causes or can reasonably be expected to cause any of the Warranties to be untrue, inaccurate or misleading at any time prior to or on the Transfer Date; (ii) enter into any commitment or arrangement which has or will or may have a material adverse effect on the Transfer of Listing; and (iii) take any steps which, in the reasonable opinion of the Sole Sponsor, are or will or may be materially inconsistent with any statement or expression, whether of fact, policy, expectation or intention, in the Listing Document; (f) ensure that any issues identified and as disclosed in the Internal Control Report have been, are being or will promptly be rectified or improved to a sufficient standard or level for the operation and maintenance of efficient systems of internal accounting and financial reporting controls and disclosure and corporate governance controls and procedures that are effective to perform the functions for which they were established and to allow compliance by the Company and the Board with all Applicable Laws in all material respects, and, without prejudice to the generality of the foregoing, to such standard or level recommended or suggested by the Internal Control Consultant in the Internal Control Report; (g) provide all such information known to it relating to the Group or itself or otherwise as may be reasonably required by the Sole Sponsor in connection with the Transfer of Listing for the purposes of complying with any requirements of Applicable Laws (including, without limitation and for the avoidance of doubt, the applicable CSRS Rules, the requirements of the Stock Exchange or of the SFC or of any other relevant Governmental Authority); (h) promptly provide full particulars thereof to the Sole Sponsor if, at any time up to or on the date falling 12 months after the Transfer Date, there is a significant change which affects or is capable of affecting any information contained in the Listing Document or a significant new matter arises, the inclusion of information in respect of which would have been required in any of the Listing Document had it arisen before any of them was issued, and, in connection therewith, further (i) inform the Stock Exchange of such change or matter if so required by the Sole Sponsor; (ii) at its expense, promptly prepare documentation containing details of such change or matter if so required by the Stock Exchange or the Sole Sponsor and in a form approved by the Sole Sponsor, deliver such documentation through the Sole Sponsor to the Stock Exchange for approval and publish such documentation in such manner as the Stock Exchange or the Sole Sponsor may require; (iii) at its expense, make all necessary announcements to the Stock Exchange to avoid a false market being created in the Shares; and (iv) not issue, publish, distribute or make available publicly any announcement, circular, document or other communication relating to any such change or matter without the prior written consent of the Sole Sponsor, and for the purposes of this Clause 8.2, significant means significant for the purpose of making an informed assessment of the matters mentioned in Rule 11.07 of the Main Board Listing Rules; (i) comply with the all Applicable Laws (including, without limitation, the CSRC Archive Rules) in connection with (A) the establishment and maintenance of adequate and effective internal control measures and internal systems for maintenance of data protection, confidentiality and archive administration; (B) the relevant requirements and approval and filing procedures in connection with its handling, disclosure, transfer and retention of transfer of state secrets and working secrets of government agencies or any other documents or materials that would otherwise be detrimental to national securities or public interest (the Relevant Information); and (C) maintenance of confidentiality of any Relevant Information; (j) where there is any material information that shall be reported to the CSRC pursuant to the Applicable Laws (including, without limitation, the applicable CSRC Rules), promptly notifying the CSRC or the relevant PRC Governmental Authority and providing it with such material information in accordance with to the applicable Laws, and promptly notifying the Sole Sponsor of such material information to the extent permitted by the applicable Laws; and (k) without prejudice to the foregoing obligations, do all such other acts and things as may be reasonably required to be done by it to carry into effect the Transfer of Listing. 8.3 The undertakings in this Clause 8 shall remain in full force and effect notwithstanding the completion of the Transfer of Listing and the matters and arrangements referred to or contemplated in this Agreement.
Appears in 1 contract
Samples: Sponsor's Agreement
Further Undertakings. 8.1 6.1 The Company undertakes to each of the Sole Global Coordinator, the Sole Bookrunner, the Sole Sponsor, Joint Lead Managers and the International Underwriters that, and the Warranting Shareholder undertakes to procure that:
6.1.1 the Company will comply in all respects with the Sole Sponsor that terms and conditions of the International Offering and, in particular, without limitation:
(a) to comply with all applicable Laws in effect from time to time, in particular, to comply with the obligations imposed upon it shall do all such acts by the Companies Ordinance, Companies (Winding Up and things Miscellaneous Provisions) Ordinance and execute all documents as may be required under the Applicable Laws Listing Rules in respect of or by reason of the Stock Exchange in connection with making of the Main Board Listing Application (Global Offering including, in but without limitation, the case making of the Company, effecting all necessary filings with the Registrar of Companies in Hong Kong, the Stock Exchange and/or the SFC and ensuring that each the making available for inspection in Hong Kong of the Directors shall sign or cause documents and in the manner referred to be duly signed on their behalf in the paragraph headed “Documents Delivered to the Registrar of Companies and Available for inspection” of Appendix V to the Prospectus during the period specified in that paragraph; and
(b) to comply in all documents required to be signed by them as Directors for the purposes of or in connection aspects with the Transfer terms and conditions of Listing or such filings).the Global Offering and, in particular, to allot and issue the International Offer Shares to Placees under the International Offering;
8.2 The Company undertakes to the Sole Sponsor that 6.1.2 the Company shall:
(a) comply with the Main Board Listing Rules and the GEM Listing Rules in relation will use its best endeavours to any supplemental listing document to the Listing Document and further agrees, except for the Listing Documentation or except as otherwise provided pursuant to the provisions of this Agreement or as required by Applicable Laws or the Stock Exchange, not to issue, publish, distribute or make available directly or indirectly to the public any document (including any listing document, announcement, supplement, circular and press release), material or information in connection with the Transfer of Listing, or make any amendment to any of the Listing Documentation, or any amendment or supplement thereto at any time prior to the expiry of the period of six months from the Transfer Date (excluding, for the avoidance of doubt, any document, material or information which may be connected with the Transfer of Listing solely because it extracts, reproduces or contains references to the Transfer of Listing, the Listing Documentation or information contained therein) without the prior written consent of the Sole Sponsor (which consent shall not be unreasonably withheld or delayed); procure that the Hong Kong Share Registrar to Registrar, the White Form eIPO Service Provider and the Receiving Bank (as defined in the Hong Kong Underwriting Agreement) will comply with the terms of their respective appointment and will do all such acts and things as may be required to be done by it each of them and by the time specified or necessary in connection with the Transfer of Listing Global Offering and in particular, but without limitation, as set out in the Share Registration Services Agreements, White Form eIPO Service Agreement and the transactions contemplated herein Receiving Bank Agreement (as defined in the Hong Kong Underwriting Agreement), respectively. None of the terms of the appointment of the Hong Kong Share Registrar, the White Form eIPO Service Provider and the Receiving Bank shall procure that such appointment shall not be amended or terminated before completion of the Transfer of Listing without the prior written consent of the Sole SponsorGlobal Coordinator (for itself and on behalf of the International Underwriters) which consent shall not be unreasonably withheld or delayed;
(b) use its reasonable endeavours to procure that 6.1.3 each of the Company will maintain a listing forWarrantors will, and will refrain from taking cause its Affiliates and subsidiaries and any action that could jeopardise party acting on its behalf to, comply with the Listing Rules and Companies (Winding Up and Miscellaneous Provisions) Ordinance (as relevant) in relation to supplemental listing status ofdocuments and further agrees not to issue, publish, distribute or make available any announcement, circular or document without the prior written consent of the Sole Sponsor and the Sole Global Coordinator;
6.1.4 as soon as practicable and in any event before the commencement of dealings in the Shares on the Main Board of the Stock Exchange for not less than six months after the Transfer DateExchange, except following a withdrawal of such listing which has been approved by the relevant shareholders of the Company in accordance with the Main Board Listing Rules or following an offer (within the meaning of the Hong Kong Code on Takeovers and Mergers issued by the SFC) for the Company becoming unconditional;
(c) the Company shall comply with all Applicable Laws (including, without limitation and for the avoidance of doubt, the rules, regulations and requirements of the Stock Exchange and any other Governmental Authority) including, without limitation:
(i) (A) comply with the Stock Exchange’s rules or other requirements to publish and disseminate to the public, under certain circumstances, information affecting any financial information in the Listing Document, and (B) announce in an announcement any information so required by the Stock Exchange to be published and disseminated to the public in connection with the Transfer of Listing at any time prior to the expiry of the period of six months from the Transfer Date (in the case after the Transfer of Listing, excluding, for the avoidance of doubt, any document, material or information which may be connected with the Transfer of Listing solely because it extracts, reproduces or contains references to the Transfer of Listing, the Listing Documentation or information contained therein), provided, however, that no such announcement shall be issued by the Company without having been submitted to the Sole Sponsor for their review not less than two Business Days prior to such issuance, or such lesser period of time as is necessary for the Company to avoid violation of any Applicable Laws, and (c) comply with the applicable CSRC Rules and where applicable, make all necessary filings (including the CSRC Filings) and obtain all necessary Approvals required under the CSRC Filings;
(ii) will deliver to the Stock Exchange the declaration substantially in the form set out in Appendix 5, Form F of the Main Board Listing Rules acceptable to the Stock Exchange;
6.1.5 save for the Distribution, the Company will use all reasonable efforts to procure that none of the connected persons or their respective associates (as defined in the Listing Rules) of the Company will apply for or acquire, either by itself or through a company controlled by it, any Offer Shares either in their own names or through nominees unless permitted to do so under the Listing Rules and obtain confirmation from the Stock Exchange to that effect;
6.1.6 save for any change to the plans for the use of proceeds subject to the Listing Rules, the Company will use all of the net proceeds received by it pursuant to the Global Offering in the manner specified in the section headed “Future Plans and Use of Proceeds - Use of Proceeds” in the Offering Circular and the Prospectus. The Company will maintain and implement adequate internal controls and procedures to monitor and audit transactions that are reasonably designed to detect and prevent any use of the proceeds from the Global Offering that is inconsistent with any of the Company’s representations and applicable obligations;
6.1.7 except pursuant to the Loan Capitalisation Issue, the Distribution, Global Offering, the Over-allotment Option, options which may be granted under any share option scheme of any member of the Group or with the prior written consent of the Sole Sponsor and Sole Global Coordinator (iiifor itself and on behalf of the International Underwriters) providing and unless in compliance with the requirements of the Listing Rules, the Company will not, at any time within the First Six Months Period (as defined in the Hong Kong Underwriting Agreement), (a) offer, accept subscription for, pledge, allot, issue, sell, lend, mortgage, assign, charge, contract to issue or sell, sell 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 or create an Encumbrance over, either directly or indirectly, conditionally or unconditionally, any such 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 in any of the foregoing) or deposit any Shares or other securities of the Company with a depositary in connection with the issue of depositary receipts; 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 in any of the foregoing (including, without limitation, any securities convertible into or exchangeable or exercisable for or that represent the right to receive, or any warrants or other rights to purchase, any Shares or other securities of the Company or any interest in any of the foregoing); or (c) enter into any transaction with the same economic effect as any transaction described in (a) or (b) above; (d) agree or contract to, or publicly announce any intention to enter into, any transaction described in
(a) or (b) above; in each case whether any such transaction described in (a) or (b) or (c) above is to be settled by delivery of Shares or other securities, in cash or otherwise. The Company will not enter into any of the transactions described above or agree or contract to or publicly announce any intention to enter into any such transactions such that the Warranting Shareholder would cease to be controlling shareholders (as defined in the Listing Rules) of the Company during the Second Six Months Period (as defined in the Hong Kong Underwriting Agreement); and the Company will ensure that if any of the transactions described above are carried out during the Second Six Months Period, it will take all reasonable steps to ensure that any such act will not create a disorderly or false market for any Shares or other securities of the Company;
6.1.8 without prejudice to Clauses 3.6.2, 3.6.3 and 3.6.4, (A) the Company will pay (and indemnify each of the International Underwriters) any tax, duty, levy, fee or other charge or expense (if any) which may be payable in the Cayman Islands, Hong Kong or elsewhere, whether pursuant to the requirement of any Laws, or otherwise, in connection with (a) the creation, allotment, issue, sale or transfer of the Offer Shares by the Company to the International Underwriters and the subsequent subscribers or purchasers as part of the initial distribution of the International Offering Shares by the International Underwriters in the manner contemplated in this Agreement (except to the extent such amounts have been collected from or paid by the subsequent purchasers); (b) the Global Offering, and (c) the execution and delivery of, or the performance of any of the provisions under, this Agreement;
6.1.9 the Company shall provide to the Sole Sponsor any Sponsor, the Sole Global Coordinator, the Sole Bookrunner, the Joint Lead Managers and the International Underwriters all such other resolutionsinformation known to the Company or which on due and careful enquiry ought to be known to the Company and whether relating to the Group or the Company or the Controlling Shareholders or otherwise as may be reasonably required by the Sole Sponsor, consents, authorities, documents, opinions the Sole Global Coordinator (for itself and certificates which are relevant in the context on behalf of the Transfer of Listing owing to circumstances arising or events occurring after the date of this Agreement but before 8:00 a.m. on the Transfer Date and as International Underwriters), the Sole Sponsor may reasonably require; and
(iv) Bookrunner and the Joint Lead Mangers in connection with the Global Offering for the purposes of complying with all any requirements of applicable Laws (including, for the undertakings and commitments made by it in avoidance of doubt, the Listing Document and shall use its best endeavours to procure requirements of the Directors to comply with all Stock Exchange or of the undertakings and commitments by the Directors in the Listing DocumentSFC or of any other relevant authority);
(d) 6.1.10 the Company shall not, not at any time after the date of this Agreement up to and including the Transfer Datedate on which all the Conditions are fulfilled or waived, amend or agree to amend the Articles of Association save as requested by the Stock Exchange or enter into or allow any Group Company to comply with the requirements under the Main Board Listing Rules, the GEM Listing Rules or Applicable Laws;
(e) shall not, and procure that no other member of the Group will:
(i) at any time after the date of this Agreement up to the Transfer Date, do or omit to do anything which causes or can reasonably be expected to cause any of the Warranties to be untrue, inaccurate or misleading at any time prior to or on the Transfer Date;
(ii) enter into any commitment or arrangement which has could materially and adversely affect the Global Offering or will which is outside the ordinary course of business of any member of the Group or may have a material adverse effect on the Transfer of Listing; and
(iii) take any steps which, in the reasonable opinion of the Sole SponsorGlobal Coordinator, are or will or may would be materially inconsistent with any expression of policy or intention in the Prospectus or make any material amendment to any of the service contracts of the Directors or waive or release a Director from any provision of his service contract and the Company shall do all such acts and things to enforce or preserve the rights of the Company under the service contracts;
6.1.11 at any time within the period during which the Over-allotment Option may be exercised, the Company shall not declare or make any payment of dividends, make any other distribution of profits whatsoever, any return of value or any issue of bonus Shares to its shareholders or offer or agree to do any of the foregoing or announce any intention to do so;
6.1.12 if, at any time prior to the completion of the issue of the Offer Shares by the Company, any event occurs as a result of which any of the Offer Documents, as then amended or supplemented, would include any untrue statement of a material fact or expression, whether of fact, policy, expectation or intentionomit to state any material fact necessary to make the statements therein, in the Listing Documentlight of the circumstances under which they were made, not misleading, or if it should be necessary to amend or supplement the Offer Documents to comply with applicable Laws, the Company and the Warranting Shareholder will promptly notify the Sole Sponsor and Sole Global Coordinator and will prepare and provide to the Sole Sponsor and Sole Global Coordinator an amendment or supplement which will correct such statement or omission and effect such compliance and will not distribute any such amendment or supplement to which the Sole Sponsor and Sole Global Coordinator objects;
(f) 6.1.13 ensure that any issues identified and as disclosed in any internal control report prepared by the Internal Control Report Controls Consultant have been, are being or will promptly be rectified or improved to a sufficient standard or level for the operation and maintenance of efficient systems of internal accounting and financial reporting controls and disclosure and corporate governance controls and procedures that are effective to perform the functions for which they were established and to allow compliance by the Company and the Board with all Applicable Laws in all material respectsapplicable Laws, and, without prejudice to the generality of the foregoing, to such standard or level recommended or suggested by the Internal Control Controls Consultant in the Internal Control Reportits internal controls report;
(g) provide all such information known to it relating to the Group or itself or otherwise as may be reasonably required by the Sole Sponsor in connection with the Transfer of Listing for the purposes of complying with any requirements of Applicable Laws (including, without limitation and for the avoidance of doubt, the applicable CSRS Rules, the requirements of the Stock Exchange or of the SFC or of any other relevant Governmental Authority);
(h) promptly provide full particulars thereof to the Sole Sponsor 6.1.14 if, at any time up to or on the date falling 12 months 30 days after the Transfer Listing Date, there is a significant change which affects or is capable of affecting any information contained in the Listing Document Offer Documents or a significant new matter arises, the inclusion of information in respect of which would have been required in any of the Listing Document Offer Documents had it arisen before any of them was issued, and, in connection therewith, furtherthen the Company shall:
(ia) to the extent that permitted by and subject to the compliance with the applicable Laws and the Listing Rules, promptly provide full particulars thereof to the Sole Sponsor and the Sole Global Coordinator;
(b) if so required by the Sole Sponsor and the Sole Global Coordinator, inform the Stock Exchange of such change or matter if so required by the Sole Sponsormatter;
(iic) at its expense, promptly prepare documentation containing details of such change or matter (if so required by the Stock Exchange or the Sole Sponsor and in a form approved by the Sole Sponsor, deliver such documentation Global Coordinator) promptly prepare and (through the Sole Sponsor and the Sole Global Coordinator) deliver to the Stock Exchange for approval documentation containing details thereof in a form agreed by the Sole Sponsor and the Sole Global Coordinator and publish such documentation in such manner as the Stock Exchange or the Sole Sponsor and the Sole Global Coordinator may require;; and
(iiid) at its expense, make all any necessary announcements to through the Stock Exchange and the press to avoid a false market being created in the Offer Shares; and
(iv) not issue. To the extent that permitted by and subject to the compliance with the applicable Laws and the Listing Rules, publishthe Company undertakes to have prior consultation with the Sole Sponsor and the Sole Global Coordinator prior to issuing, distribute publishing, distributing or make making available publicly any announcement, circular, document or other communication relating to any such change or matter without the prior written consent of the Sole Sponsor, and for the purposes of this Clause 8.2, significant means significant for the purpose of making an informed assessment of the matters mentioned in Rule 11.07 of the Main Board Listing Rules;
(i) comply with the all Applicable Laws (including, without limitation, the CSRC Archive Rules) in connection with (A) the establishment and maintenance of adequate and effective internal control measures and internal systems for maintenance of data protection, confidentiality and archive administration; (B) the relevant requirements and approval and filing procedures in connection with its handling, disclosure, transfer and retention of transfer of state secrets and working secrets of government agencies or any other documents or materials that would otherwise be detrimental to national securities or public interest (the Relevant Information); and (C) maintenance of confidentiality of any Relevant Information;
(j) where there is any material information that shall be reported to the CSRC pursuant to the Applicable Laws (including, without limitation, the applicable CSRC Rules), promptly notifying the CSRC or the relevant PRC Governmental Authority and providing it with such material information in accordance with to the applicable Laws, and promptly notifying the Sole Sponsor of such material information to the extent permitted by the applicable Laws; and
(k) without prejudice to the foregoing obligations, do all such other acts and things as may be reasonably required to be done by it to carry into effect the Transfer of Listingaforesaid.
8.3 The undertakings in this Clause 8 shall remain in full force and effect notwithstanding the completion of the Transfer of Listing and the matters and arrangements referred to or contemplated in this Agreement.
Appears in 1 contract
Samples: International Underwriting Agreement
Further Undertakings. 8.1 (A) The Company undertakes and the Selling Shareholder jointly and severally undertake to each of the Joint Global Coordinators, the Joint Sponsors and the Hong Kong Underwriters that:
(i) the Company and the Selling Shareholder will comply in all respects with the Sole Sponsor that it shall do all such acts terms and things conditions of the Hong Kong Public Offering and, in particular, without limitation:
(a) to comply with any obligation imposed upon them by the Companies Ordinance and execute all documents as may be required under the Applicable Laws Hong Kong Listing Rules in respect of or by reason of the Stock Exchange in connection with making of the Main Board Listing Application (Hong Kong Public Offering including, in but without limitation, the case making of the Company, effecting all necessary filings with the Registrar of Companies in Hong Kong, the Hong Kong Stock Exchange and ensuring the SFC and the making available for inspection in Hong Kong of the documents and in the manner referred to in the paragraph headed "Documents available for inspection" of appendix X to the Prospectus during the period specified in that paragraph;
(b) in respect of the Company, to allot and issue and, in respect of the Selling Shareholder, to sell and transfer the Hong Kong Offer Shares in accordance with the Offer Ratio to successful applicants under the Hong Kong Public Offering and, if any of the Hong Kong Offer Shares falls to be taken up pursuant to clause 5(A), to the applicants under clause 5(F) or, as the case may be, as the Joint Global Coordinators direct; and
(c) as soon as practicable following announcement of the basis of allocation of the Hong Kong Offer Shares and in any event no later than 9:00 a.m. on 17th December, 2003 (or such other time and date as may be determined in accordance with the terms of the Hong Kong Public Offering and this Agreement), to cause definitive share certificates representing the Hong Kong Offer Shares to be posted or made available for collection in accordance with the terms of the Hong Kong Public Offering to successful applicants or, as the case may be, procure that the share certificates for Hong Kong Offer Shares in respect of which successful applicants have elected for delivery into CCASS shall be duly delivered to the depositary for Hongkong Clearing for credit to the stock account of such CCASS participant(s) as may be specified for such purpose by or on behalf of the relevant applicant;
(ii) each of the Directors shall sign or cause Company and the Selling Shareholder will require the Share Registrar and the Receiving Bankers to be duly signed on their behalf all documents required to be signed by them as Directors for the purposes of or in connection with the Transfer of Listing or such filings).
8.2 The Company undertakes to the Sole Sponsor that the Company shall:
(a) comply with the Main Board Listing Rules terms of their respective appointments and the GEM Listing Rules in relation to any supplemental listing document to the Listing Document and further agrees, except for the Listing Documentation or except as otherwise provided pursuant to the provisions of this Agreement or as required by Applicable Laws or the Stock Exchange, not to issue, publish, distribute or make available directly or indirectly to the public any document (including any listing document, announcement, supplement, circular and press release), material or information in connection with the Transfer of Listing, or make any amendment to any of the Listing Documentation, or any amendment or supplement thereto at any time prior to the expiry of the period of six months from the Transfer Date (excluding, for the avoidance of doubt, any document, material or information which may be connected with the Transfer of Listing solely because it extracts, reproduces or contains references to the Transfer of Listing, the Listing Documentation or information contained therein) without the prior written consent of the Sole Sponsor (which consent shall not be unreasonably withheld or delayed); procure the Hong Kong Share Registrar to do all such acts and things as may be required to be done by it each of them and by the time specified or necessary in connection with the Transfer of Listing Global Offering and in particular, but without limitation, the Registrar's Agreement and the transactions contemplated herein Receiving Bankers' Agreements, respectively. None of the terms of the appointments of the Share Registrar and the Receiving Bankers shall procure that such appointment shall not be amended or terminated before completion of the Transfer of Listing without the prior written consent of the Sole SponsorJoint Global Coordinators (on behalf of the Hong Kong Underwriters) which consent shall not be unreasonably withheld or delayed;
(biii) the Company and the Selling Shareholder shall promptly notify the Joint Global Coordinators of (1) anything occurring or coming to the attention of the Company or the Selling Shareholder (as the case may be) subsequent to the execution of this Agreement and immediately prior to the time and date detailed in clause 12(A) as a result of which any of the Hong Kong Offering Documents would include an untrue statement of a material fact or omit to state a material fact or would be misleading in any material respect, and (2) every significant new factor likely to affect the Global Offering which arises between the date hereof and the time and date detailed in clause 12(A) and which comes to the knowledge of the Company or the Selling Shareholder (as the case may be); and if any information is notified to the Joint Global Coordinators under this clause, the Company shall, and the Selling Shareholder shall procure that the Company shall, following, if applicable, confirmation from the Hong Kong Stock Exchange, the SFC and/or any other relevant regulatory authority that it considers such action necessary or appropriate, prepare and publish such supplements and/or amendments to the Hong Kong Offering Documents or other documents and make such announcements as the Joint Global Coordinators may reasonably require and, if necessary, after the Company shall have obtained any applicable regulatory approval or consent;
(iv) the Company will comply with the Hong Kong Listing Rules in relation to supplemental listing document(s) that may be issued in connection with the Global Offering and further agrees not to issue, publish, distribute or make available any announcement, circular or document as contemplated above without the prior written consent of the Joint Global Coordinators;
(v) the Company will, in compliance with the Hong Kong Listing Rules, deliver to the Hong Kong Stock Exchange the declaration substantially in the form set out in Xxxxxxxx 0, Xxxx X xx xxx Xxxx Xxxx Listing Rules acceptable to the Hong Kong Stock Exchange;
(vi) the Company will use its reasonable best endeavours to procure that none of the promoters, directors, supervisors or chief executives of the Company or any of its subsidiaries or any associate (as such term is defined in the Hong Kong Listing Rules) will himself or itself (or through a company controlled by him or it) apply for any Offer Shares either in his or its own name or through nominees unless permitted to do so under the Hong Kong Listing Rules;
(vii) the Selling Shareholder will use its best endeavours to procure that none of its directors, supervisors, chief executives or any of its associates (as such term is defined in the Hong Kong Listing Rules) will himself or itself (or through a company controlled by him or it) apply for any Offer Shares either in his or its own name or through nominees unless permitted to do so under the Hong Kong Listing Rules;
(viii) the Company will maintain use the net proceeds received by it pursuant to the Global Offering in the manner specified in the Prospectus under the section headed "Future plans and use of proceeds" and in the event and to the extent that any such net proceeds is placed on deposits with banks due to their not immediately being used for the specific purposes as described in the Prospectus, it shall place such proceeds on short-term bank deposits; and
(ix) the Company will pay any tax, duty, levy, fee or other charge or expense (if any) which may be payable in the PRC and Hong Kong or elsewhere, whether pursuant to the requirement of any law, rule or regulation or otherwise, in connection with the creation, allotment and issue or the sale and transfer (as the case may be) of the Offer Shares, the Global Offering, the execution and delivery of, and the performance of any of the provisions under, this Agreement.
(B) The Company undertakes to each of the Joint Global Coordinators, Joint Sponsors and Hong Kong Underwriters that, and the Selling Shareholder undertakes to procure that, except pursuant to the Global Offering (including pursuant to the Over-allotment Option), during a listing period of 180 days after the Prospectus Date, the Company will not without the Joint Global Coordinators' prior written consent and unless in compliance with the requirements of the Hong Kong Listing Rules offer, pledge, charge, allot, issue, sell, contract to allot, 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, or repurchase, any of its share capital or any securities convertible into or exercisable or exchangeable for or that represent the right to receive such share capital or enter into any swap or other arrangement that transfers to another, in whole or in part, any of the economic consequences of ownership of such share capital, whether any of the foregoing transactions is to be settled by delivery of share capital or such other securities, in cash or otherwise, and further that, in the event of a disposal of any shares of the Company or any interest therein within 12 months after the date falling 180 days after the Prospectus Date, it will take all reasonable steps to ensure that such an issue or disposal will not create a disorderly or false market for the shares of the Company.
(C) The Selling Shareholder undertakes to each of the Company, the Joint Global Coordinators, the Joint Sponsors and the Hong Kong Underwriters that:
(i) except pursuant to the Global Offering (including pursuant to the Over-allotment Option), it will not without the prior written consent of the Joint Global Coordinators and unless in compliance with the requirements of the Hong Kong Listing Rules, at any time during a period of 180 days after the Prospectus Date offer, pledge, 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, any of the share capital or other securities of the Company held by it that are convertible into or exercisable or exchangeable for, or that represent the right to receive any such share capital or enter into any swap or other arrangement that transfers to another, in whole or in part, any of the economic consequences of ownership of such share capital, whether any of the foregoing transactions is to be settled by delivery of share capital or such other securities, in cash or otherwise, and further agrees that, in the event of a disposal of any shares of the Company or any interest therein within 12 months after the date falling 180 days after the Prospectus Date, it will take all reasonable steps to ensure that such a disposal will not create a disorderly or false market for the shares of the Company; and
(ii) it will, at any time after the Prospectus Date up to and including the date falling 12 months following the date on which dealings in the H Shares on the Hong Kong Stock Exchange commence immediately inform the Company, the Joint Global Coordinators and the Joint Sponsors of any pledges or charges of any shares of the Company or other share capital of the Company beneficially owned by it and the number of such shares of the Company or other securities so pledged or charged and of any indication received by it, either verbal or written, from any pledgee or chargee of any shares of the Company or other share capital of the Company pledged or charged that such shares of the Company or other share capital of the Company will be disposed of.
(D) Each of the Company and the Selling Shareholder further undertakes to each of the Joint Global Coordinators, the Joint Sponsors and the Hong Kong Underwriters that it will not use, and will refrain cause each of its subsidiaries not to use, the proceeds from taking the sale of its H Shares or ADSs, directly or indirectly, for any action purpose or activity that could jeopardise would cause the Underwriters or any purchaser of the H Shares or ADSs to be in violation of the United States Trading With the Enemy Act, as amended, the United States International Emergency Economic Powers Act, as amended, or any of the foreign assets control regulations of the United States Treasury Department (31 CFR, Subtitle B, Chapter V, as amended) or any enabling legislation or executive order relating thereto, or in connection with business, operations or contracts with the Governments of or with any person or entity in Burma (Myanmar), Cuba, Iran, Libya or Sudan or any agent or "Specially Designated National" or "Blocked Person" (identified in 31 CFR, Subtitle B, Chapter V, Appendix 1) thereof, or in connection with contracts in support of projects in or for the benefit of the Governments of the above indicated countries.
(E) The Company shall, and the Selling Shareholder shall procure that the Company will:
(i) use its best endeavours to obtain and maintain all approvals (if any) required in the PRC by the Company to acquire its required foreign exchange;
(ii) following completion of the Global Offering, use its best endeavours to ensure that it has sufficient foreign exchange to meet payment of any dividends which may be declared in respect of the H Shares and the ADSs;
(iii) use its best endeavours to maintain the listing status of, of the H Shares on the Main Board of the Hong Kong Stock Exchange for not less than six months at least one year after the Transfer Date, Conditions have been fulfilled except following a withdrawal of such listing which has been approved by the relevant shareholders of the Company in accordance with the Main Board Hong Kong Listing Rules or following an offer (within the meaning of the Hong Kong Code on Takeovers and Mergers issued by the SFCMergers) for the Company becoming unconditional;
(civ) procure that the audited accounts of the Company shall comply with all Applicable Laws (including, without limitation and for the avoidance of doubtfinancial years ending 31st December, 2003 and 31st December, 2004 will be prepared on a basis consistent in all material respects with the rules, regulations and requirements accounting policies adopted for the purposes of the Stock Exchange Company Accounts contained in the report of the Reporting Accountants set out in appendix I to the Prospectus, and any other Governmental Authority) includingthat a statement of the Group's pro forma results will be included in the Company's annual report for the financial year ending 31st December, without limitation:
2003 (i) (A) comply which statement shall comprise the Group's pro forma results for the 6 months ended 30th June, 2003 included in the Prospectus and its actual results for the 6 months ending 31st December, 2003, adjusted to reflect what its results for this period would have been had the Restructuring occurred on 1st July, 2003, and be accompanied by a management discussion comparing these results with the Stock Exchange’s rules or other requirements to publish Group's pro forma results for the year ended 31st December, 2002 included in the Prospectus and disseminate a report from the Company's independent auditors on the pro forma results for the year ending 31st December, 2003 similar to the publicreport on the pro forma results for the year ended 31st December, under certain circumstances2002 and the 6 month periods ended 30th June, information affecting any financial information 2002 and 2003 included in the Listing Document, and (B) announce in an announcement any information so required by the Stock Exchange to be published and disseminated appendix II to the public in connection with the Transfer of Listing at any time prior to the expiry of the period of six months from the Transfer Date (in the case after the Transfer of Listing, excluding, for the avoidance of doubt, any document, material or information which may be connected with the Transfer of Listing solely because it extracts, reproduces or contains references to the Transfer of Listing, the Listing Documentation or information contained thereinProspectus), provided, however, that no such announcement shall be issued by the Company without having been submitted to the Sole Sponsor for their review not less than two Business Days prior to such issuance, or such lesser period of time as is necessary for the Company to avoid violation of any Applicable Laws, and (c) comply with the applicable CSRC Rules and where applicable, make all necessary filings (including the CSRC Filings) and obtain all necessary Approvals required under the CSRC Filings;
(ii) deliver to the Stock Exchange the declaration substantially in the form set out in Appendix 5, Form F of the Main Board Listing Rules;
(iii) providing to the Sole Sponsor any such other resolutions, consents, authorities, documents, opinions and certificates which are relevant in the context of the Transfer of Listing owing to circumstances arising or events occurring after the date of this Agreement but before 8:00 a.m. on the Transfer Date and as the Sole Sponsor may reasonably require; and
(iv) complying with all the undertakings and commitments made by it in the Listing Document and shall use its best endeavours to procure the Directors to comply with all the undertakings and commitments by the Directors in the Listing Document;
(d) shall not, at any time after the date of this Agreement up to the Transfer Date, amend or agree to amend the Articles of Association save as requested by the Stock Exchange or to comply with the requirements under the Main Board Listing Rules, the GEM Listing Rules or Applicable Laws;
(e) shall not, and procure that no other member of the Group will:
(iv) at any time after the date of this Agreement up to and including the Transfer Date, do or omit to do anything date on which causes or can reasonably be expected to cause any all of the Warranties Conditions are fulfilled (or waived) in accordance with this Agreement, not amend or agree to be untrue, inaccurate or misleading at any time prior to or on amend its articles of association save as requested by the Transfer Date;
(ii) enter into any commitment or arrangement which has or will or may have a material adverse effect on the Transfer of ListingHong Kong Stock Exchange; and
(iiivi) take any steps whichthe Restructuring, insofar and to such extent as not having been completed as at the date of this Agreement, shall be completed before dealings in the reasonable opinion of H Shares on the Sole Sponsor, are or will or may be materially inconsistent with any statement or expression, whether of fact, policy, expectation or intention, in the Listing Document;
(f) ensure that any issues identified and as disclosed in the Internal Control Report have been, are being or will promptly be rectified or improved to a sufficient standard or level for the operation and maintenance of efficient systems of internal accounting and financial reporting controls and disclosure and corporate governance controls and procedures that are effective to perform the functions for which they were established and to allow compliance by the Company and the Board with all Applicable Laws in all material respects, and, without prejudice to the generality of the foregoing, to such standard or level recommended or suggested by the Internal Control Consultant in the Internal Control Report;
(g) provide all such information known to it relating to the Group or itself or otherwise as may be reasonably required by the Sole Sponsor in connection with the Transfer of Listing for the purposes of complying with any requirements of Applicable Laws (including, without limitation and for the avoidance of doubt, the applicable CSRS Rules, the requirements of the Hong Kong Stock Exchange or of the SFC or of any other relevant Governmental Authority);
(h) promptly provide full particulars thereof to the Sole Sponsor if, at any time up to or on the date falling 12 months after the Transfer Date, there is a significant change which affects or is capable of affecting any information contained in the Listing Document or a significant new matter arises, the inclusion of information in respect of which would have been required in any of the Listing Document had it arisen before any of them was issued, and, in connection therewith, further
(i) inform the Stock Exchange of such change or matter if so required by the Sole Sponsor;
(ii) at its expense, promptly prepare documentation containing details of such change or matter if so required by the Stock Exchange or the Sole Sponsor and in a form approved by the Sole Sponsor, deliver such documentation through the Sole Sponsor to the Stock Exchange for approval and publish such documentation in such manner as the Stock Exchange or the Sole Sponsor may require;
(iii) at its expense, make all necessary announcements to the Stock Exchange to avoid a false market being created in the Shares; and
(iv) not issue, publish, distribute or make available publicly any announcement, circular, document or other communication relating to any such change or matter without the prior written consent of the Sole Sponsor, and for the purposes of this Clause 8.2, significant means significant for the purpose of making an informed assessment of the matters mentioned in Rule 11.07 of the Main Board Listing Rules;
(i) comply with the all Applicable Laws (including, without limitation, the CSRC Archive Rules) in connection with (A) the establishment and maintenance of adequate and effective internal control measures and internal systems for maintenance of data protection, confidentiality and archive administration; (B) the relevant requirements and approval and filing procedures in connection with its handling, disclosure, transfer and retention of transfer of state secrets and working secrets of government agencies or any other documents or materials that would otherwise be detrimental to national securities or public interest (the Relevant Information); and (C) maintenance of confidentiality of any Relevant Information;
(j) where there is any material information that shall be reported to the CSRC pursuant to the Applicable Laws (including, without limitation, the applicable CSRC Rules), promptly notifying the CSRC or the relevant PRC Governmental Authority and providing it with such material information in accordance with to the applicable Laws, and promptly notifying the Sole Sponsor of such material information to the extent permitted by the applicable Laws; and
(k) without prejudice to the foregoing obligations, do all such other acts and things as may be reasonably required to be done by it to carry into effect the Transfer of Listingcommence.
8.3 The undertakings in this Clause 8 shall remain in full force and effect notwithstanding the completion of the Transfer of Listing and the matters and arrangements referred to or contemplated in this Agreement.
Appears in 1 contract
Samples: Underwriting Agreement (China Life Insurance Co LTD)
Further Undertakings. 8.1 The Company undertakes with the Sole Sponsor that it shall do all such acts and things and execute all documents as may be required under the Applicable Laws or by the Stock Exchange in connection with the Main Board Listing Application (including, in the case of the Company, effecting all necessary filings with the Stock Exchange and ensuring that each of the Directors shall sign or cause to be duly signed on their behalf all documents required to be signed by them as Directors for the purposes of or in connection with the Transfer of Listing or such filings).
8.2 A) The Company undertakes to each of the Sole Sponsor that Joint Global Coordinators, the Joint Sponsors and the Hong Kong Underwriters that, and China Netcom Group and CNC BVI undertake to procure that:
(i) the Company shallwill comply in all respects with the terms and conditions of the Hong Kong Public Offering and will, in particular, without limitation:
(a) comply with the Main Board Listing Rules obligations imposed upon it by the Companies Ordinance and the GEM Hong Kong Listing Rules in relation respect of or by reason of the making of the Hong Kong Public Offering including, but without limitation, the making of all necessary filings with the Registrar of Companies in Hong Kong, the Hong Kong Stock Exchange and the SFC and the making available for inspection in Hong Kong of the documents and in the manner referred to any supplemental listing document in the paragraph headed "Documents available for inspection" of Appendix VIII to the Listing Document Prospectus during the period specified in that paragraph;
(b) allot and further agreesissue the Hong Kong Offer Shares to successful applicants under the Hong Kong Public Offering and, except for if any of the Listing Documentation or except as otherwise provided Hong Kong Offer Shares falls to be taken up pursuant to clause 5(A), to the provisions applicants under clause 5(F) or, as the case may be, as the Joint Global Coordinators direct; and
(c) as soon as practicable following announcement of the basis of allocation of the Hong Kong Offer Shares and in any event no later than 16 November 2004, cause definitive share certificates representing the Hong Kong Offer Shares to be posted or made available for collection in accordance with the terms of the Hong Kong Public Offering to successful applicants or, as the case may be, procure that the share certificates for Hong Kong Offer Shares in respect of which successful applicants have elected for delivery into CCASS shall be duly delivered to the depositary for Hongkong Clearing for credit to the stock account of such CCASS participant(s) as may be specified for such purpose by or on behalf of the relevant applicant;
(ii) the Company will not, at any time after the date of this Agreement or as required by Applicable Laws or up to and including the Stock Exchange, not to issue, publish, distribute or make available directly or indirectly to the public any document (including any listing document, announcement, supplement, circular and press release), material or information in connection with the Transfer of Listing, or make any amendment to any date on which all of the Listing DocumentationConditions are fulfilled (or waived) in accordance with this Agreement, amend or any amendment or supplement thereto at any time prior agree to amend the expiry Memorandum and Articles of Associations of the period of six months from the Transfer Date (excluding, for the avoidance of doubt, any document, material or information which may be connected with the Transfer of Listing solely because it extracts, reproduces or contains references to the Transfer of Listing, the Listing Documentation or information contained therein) without the prior written consent of the Sole Sponsor (which consent shall not be unreasonably withheld or delayed); procure Company save as requested by the Hong Kong Stock Exchange or other regulatory authorities which are entitled to exercise jurisdiction over the Company lawfully;
(iii) the Company will use its best endeavours to procure that the Share Registrar to and the Receiving Bankers will comply with the terms of their respective appointments and will do all such acts and things as may be required to be done by it each of them and by the time specified or necessary in connection with the Transfer of Listing Global Offering and in particular, but without limitation, the Registrar's Agreement and the transactions contemplated herein Receiving Bankers' Agreement, respectively. None of the terms of the appointments of the Share Registrar and the Receiving Bankers shall procure that such appointment shall not be amended or terminated before completion of the Transfer of Listing without the prior written consent of the Sole SponsorJoint Global Coordinators (on behalf of the Hong Kong Underwriters);
(biv) use its reasonable endeavours to the Company will procure that the Share Registrar duly enters the names of the investors in the Shares under the Global Offering, their respective nominees or the HKSCC Nominees Limited, as the case may be, in the register of members of the Company as holders of the relevant Shares;
(v) the Company will comply with the Hong Kong Listing Rules in relation to supplemental listing documents and further agrees not to issue, publish, distribute or make available any announcement, circular or document as contemplated above without the prior written consent of the Joint Global Coordinators;
(vi) the Company will, in compliance with the Hong Kong Listing Rules, deliver to the Hong Kong Stock Exchange the declaration substantially in the form set out in Xxxxxxxx 0, Xxxx X xx xxx Xxxx Xxxx Listing Rules acceptable to the Hong Kong Stock Exchange;
(vii) the Company will procure that none of the Directors or their associates (as defined in the Hong Kong Listing Rules) will himself (or through a company controlled by him) apply for any Offer Shares either in his own name or through nominees unless permitted to do so under the Hong Kong Listing Rules and having obtained confirmation to that effect, and if any such application has been made or he has indicated an interest to apply for Offer Shares, he shall forthwith notify the Joint Global Coordinators (on behalf of the Hong Kong Underwriters);
(viii) the Company will use the net proceeds received by it pursuant to the Global Offering in the manner specified in the Prospectus under the section headed "Future plans and use of proceeds", and to the extent that they are not immediately applied to the specific purposes as described in the Prospectus, it shall deposit such proceeds into interest-bearing bank accounts or invest them in investment-grade debt securities;
(ix) the Company will pay any tax, duty, levy, fee or other charge or expense (if any) which may be payable in the PRC, Hong Kong and elsewhere, pursuant to the requirement of any law, rule or regulation or as provided for in this Agreement, in connection with the creation, allotment and issue of the Offer Shares, and the execution and delivery of, and the performance of any of the provisions under, this Agreement;
(x) the Company will maintain a listing for, and will refrain from taking any action that could jeopardise the listing status of, for the Shares on the Main Board of the Hong Kong Stock Exchange for not less than six months at least one year after the Transfer Datedate on which dealings in the Shares first commence on the Hong Kong Stock Exchange (the "LISTING DATE") and to pay all fees and supply all further documents, information and undertakings and publish all advertisements or other materials 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 Main Board Listing Rules or following an offer (within the meaning of the Hong Kong Code on Takeovers and Mergers issued by the SFC) for the Company becoming unconditional;
(c) the Company shall comply with all Applicable Laws (including, without limitation and for the avoidance of doubt, the rules, regulations and requirements of the Stock Exchange and any other Governmental Authority) including, without limitation:
(i) (A) comply with the Stock Exchange’s rules or other requirements to publish and disseminate to the public, under certain circumstances, information affecting any financial information in the Listing Document, and (B) announce in an announcement any information so required by the Stock Exchange to be published and disseminated to the public in connection with the Transfer of Listing at any time prior to the expiry of the period of six months from the Transfer Date (in the case after the Transfer of Listing, excluding, for the avoidance of doubt, any document, material or information which may be connected with the Transfer of Listing solely because it extracts, reproduces or contains references to the Transfer of Listing, the Listing Documentation or information contained therein), provided, however, that no such announcement shall be issued by the Company without having been submitted to the Sole Sponsor for their review not less than two Business Days prior to such issuance, or such lesser period of time as is necessary for the Company to avoid violation of any Applicable Laws, and (c) comply with the applicable CSRC Rules and where applicable, make all necessary filings (including the CSRC Filings) and obtain all necessary Approvals required under the CSRC Filings;
(ii) deliver to the Stock Exchange the declaration substantially in the form set out in Appendix 5, Form F of the Main Board Listing Rules;
(iiixi) providing the Company agrees and undertakes that it will not effect any purchase of Shares, or agree to do so, which may reduce the holdings of Shares held by the public to a level below the requisite public float requirement as set out in the Hong Kong Listing Rules or as agreed by the Hong Kong Stock Exchange, on or before the date falling six months after the Listing Date, without having obtained the prior written consent of the Joint Global Coordinators (on behalf of the Hong Kong Underwriters);
(xii) that the documents listed in Schedule 7, Part B shall be delivered to the Sole Sponsor any such other resolutionsJoint Global Coordinators not later than the signing of the U.S. and International Underwriting Agreement, consentsand that the documents listed in Schedule 7, authorities, documents, opinions Part C shall be delivered to the Joint Global Coordinators not later than the closing of the U.S. Offering and certificates which are relevant the International Offering as provided for in the context U.S. and International Underwriting Agreement.
(B) The Company undertakes to each of the Transfer Joint Global Coordinators, Joint Sponsors and Hong Kong Underwriters that no further Shares or securities convertible into equity securities (whether or not of Listing owing a class already listed) may be issued or form the subject of any agreement to circumstances arising such an issue within six months from the date on which dealings in the Shares first commence on the Hong Kong Stock Exchange (whether or events occurring not such issue of Shares or securities will be completed within six months from the commencement of dealing), except in certain prescribed circumstances, which includes the issue of Shares pursuant to the share option scheme of the Company.
(C) Each of the Company, China Netcom Group and CNC BVI undertakes to each of the Joint Global Coordinators, Joint Sponsors and Hong Kong Underwriters that, without the prior written consent of the Joint Global Coordinators (on behalf of the Underwriters), it will not, for a period of 180 days after the date of this Agreement but before 8:00 a.m. on which dealings in the Shares first commence on the Transfer Date and as the Sole Sponsor may reasonably require; and
(iv) complying with all the undertakings and commitments made by it in the Listing Document and shall use its best endeavours to procure the Directors to comply with all the undertakings and commitments by the Directors in the Listing Document;
(d) shall not, at any time after the date of this Agreement up to the Transfer Date, amend or agree to amend the Articles of Association save as requested by the Hong Kong Stock Exchange or to comply with the requirements under the Main Board Listing Rules, the GEM Listing Rules or Applicable Laws;
(e) shall not, and procure that no other member of the Group will:Exchange,
(i) at offer, pledge, sell, contract to sell, sell any time after the date of this Agreement up option or contract to the Transfer Datepurchase, do purchase any option or omit contract to do anything which causes sell, grant or can reasonably be expected agree to cause grant any option, right or warrant to purchase, lend or otherwise transfer or dispose of, directly or indirectly, any of the Warranties share capital of the Company or any securities convertible into or exercisable or exchangeable for, or that represent the right to be untruereceive, inaccurate or misleading at any time prior to or on the Transfer Date;such share capital; or
(ii) enter into any commitment swap or other arrangement which has that transfers to another, in whole or will in part, any of the economic consequences of ownership of such share capital, whether any such transactions described in sub-clause (i) or may have a material adverse effect on (ii) above is to be settled by delivery of the Transfer share capital of Listingthe Company or such other securities, in cash or otherwise; andor
(iii) take any steps which, in the reasonable opinion of the Sole Sponsor, are or publicly disclose that it will or may be materially inconsistent with enter into any statement or expression, whether transaction described above. The foregoing provisions of fact, policy, expectation or intention, in the Listing Document;
(fthis clause 11(C) ensure that any issues identified and as disclosed in the Internal Control Report have been, are being or will promptly be rectified or improved to a sufficient standard or level for the operation and maintenance of efficient systems of internal accounting and financial reporting controls and disclosure and corporate governance controls and procedures that are effective to perform the functions for which they were established and to allow compliance by the Company and the Board with all Applicable Laws in all material respects, and, without prejudice shall not apply to the generality of the foregoing, to such standard or level recommended or suggested by the Internal Control Consultant in the Internal Control Report;
(g) provide all such information known to it relating to the Group or itself or otherwise as may be reasonably required by the Sole Sponsor in connection with the Transfer of Listing for the purposes of complying with any requirements of Applicable Laws (including, without limitation and for the avoidance of doubt, the applicable CSRS Rules, the requirements of the Stock Exchange or of the SFC or of any other relevant Governmental Authority);
(h) promptly provide full particulars thereof to the Sole Sponsor if, at any time up to or on the date falling 12 months after the Transfer Date, there is a significant change which affects or is capable of affecting any information contained in the Listing Document or a significant new matter arises, the inclusion of information in respect of which would have been required in any of the Listing Document had it arisen before any of them was issued, and, in connection therewith, furtherfollowing:
(i) inform the Stock Exchange sale of such change or matter if so required by Shares to the Sole SponsorUnderwriters;
(ii) at its expense, promptly prepare documentation containing details of such change or matter if so required the issuance by the Stock Exchange Company of Shares or ADSs upon the exercise of an option or a warrant or the Sole Sponsor and conversion of a security outstanding on the date of the Prospectus of which the Underwriters have been advised in a form approved by the Sole Sponsor, deliver such documentation through the Sole Sponsor to the Stock Exchange for approval and publish such documentation in such manner as the Stock Exchange or the Sole Sponsor may require;writing; or
(iii) at its expensetransactions by any person other than the Company relating to Shares, make all necessary announcements ADSs or other securities acquired in open market transactions after the completion of the Global Offering. The 180-day restricted period described in the foregoing provisions of this clause 11(C) is subject to extension such that, in the event that either:
(i) during the last 17 days of the 180-day restricted period, the Company issues an earnings release or material news or a material event relating to the Stock Exchange to avoid a false market being created in the SharesCompany occurs; andor
(ivii) prior to the expiration of the 180-day restricted period, the Company announces that it will release earnings results during the 16-day period beginning on the last day of the 180-day period, the "lock-up" restrictions described above will, except if otherwise waived in writing by the Joint Global Coordinators on behalf of the Underwriters, continue to apply until the expiration of the 18-day period beginning on the issuance of the earnings release or the occurrence of the material news or material event.
(D) Each of China Netcom Group and CNC BVI has undertaken to the Company, the Joint Global Coordinators, the Joint Sponsors and the Hong Kong Underwriters that, except to the extent permitted under the Global Offering or the Over-allotment Option:
(i) it will not issueand shall procure that the relevant registered holder(s) will not, publish, distribute or make available publicly any announcement, circular, document or other communication relating to any such change or matter without the prior written consent of the Sole SponsorHong Kong Stock Exchange and unless in compliance with the requirements of the Hong Kong Listing Rules, during the period commencing from the date of the Prospectus and ending on the date which is six months from the date on which dealings in the Shares first commence on the Hong Kong Stock Exchange (the "FIRST SIX-MONTH PERIOD"), dispose of, nor enter into any agreement to dispose of or otherwise create any options, rights, interests or encumbrances in respect of any Shares in respect of which they are shown by the Prospectus to be the beneficial owner (the "CHINA NETCOM GROUP'S SHARES");
(ii) it will not, without the prior written consent of the Hong Kong Stock Exchange in the six-month period commencing on the expiry of the First Six-month Period (the "SECOND SIX-MONTH PERIOD") dispose of, nor enter into any agreement to dispose of or otherwise create any options, rights, interests or encumbrances in respect of, any of the China Netcom Group's Shares and to such extent that immediately following such disposal or upon the exercise or enforcement of such options, rights, interests or encumbrances, China Netcom Group or CNC BVI would then cease to be a controlling shareholder (as defined in the Hong Kong Listing Rules) of the Company; and
(iii) it will, on any disposal of such the China Netcom Group's Shares during the Second Six-month Period, take all reasonable steps to ensure that any such disposal will not create a disorderly or false market, save that any offer for sale contained in a listing document (as defined in the purposes Hong Kong Listing Rules) shall not be subject to such restrictions.
(E) Each of this Clause 8.2China Netcom Group and CNC BVI undertakes to each of the Company, significant means significant the Joint Global Coordinators, the Joint Sponsors and the Hong Kong Underwriters that at any time during the period commencing on the date by reference to which disclosure of the direct or indirect shareholding of China Netcom Group and CNC BVI in the Company is made in the Prospectus and ending on the date which is 12 months after the date on which trading in the Shares commences on the Hong Kong Stock Exchange:
(i) it will, if it pledges or charges any Shares or other securities of the Company in respect of which it is the beneficial owner in favour of an authorised institution (as defined in the Banking Ordinance of Hong Kong) for a bona fide commercial loan, immediately inform the purpose Company of making an any such pledges or charges and the number of shares or other securities of the Company so pledged or charged; and
(ii) it will, if it receives any indication, either verbal or written, from any pledgee or chargee of any shares or other securities of the Company that such shares or other securities of the Company will be disposed of, immediately inform the Company of any such indication.
(F) The Company undertakes to each of the Joint Global Coordinators, the Joint Sponsors and the Hong Kong Underwriters that it will inform the Hong Kong Stock Exchange as soon as it has been informed assessment of the matters mentioned in Rule 11.07 clause 11(E)(i) and (ii) above by China Netcom Group or CNC BVI, and disclose such matters as soon as possible thereafter by way of an announcement published in the newspapers.
(G) The Company further undertakes to each of the Main Board Listing Rules;
(i) comply with the all Applicable Laws (including, without limitationJoint Global Coordinators, the CSRC Archive RulesJoint Sponsors and the Hong Kong Underwriters that it will not use, and will cause each of its subsidiaries not to use, the proceeds from the sale of its Shares or ADSs, directly or indirectly, for any purpose or activity that would cause the Underwriters or any purchaser of the Shares or ADSs to be in violation of the United States Trading With the Enemy Act, as amended, the United States International Emergency Economic Powers Act, as amended, or any of the foreign assets control regulations of the United States Treasury Department (31 CFR, Subtitle B, Chapter V, as amended) or any enabling legislation or executive order relating thereto, or in connection with business, operations or contracts with the Governments of or with any person or entity in Angola (A) the establishment and maintenance of adequate and effective internal control measures and internal systems for maintenance of data protectionUNITA), confidentiality and archive administration; Burma (B) the relevant requirements and approval and filing procedures Myanmar), Cuba, Iraq, Iran, Libya, North Korea or Sudan or any agent or "Specially Designated National" thereof, or in connection with its handling, disclosure, transfer and retention contracts in support of transfer of state secrets and working secrets of government agencies projects in or any other documents or materials that would otherwise be detrimental to national securities or public interest (for the Relevant Information); and (C) maintenance of confidentiality of any Relevant Information;
(j) where there is any material information that shall be reported to the CSRC pursuant to the Applicable Laws (including, without limitation, the applicable CSRC Rules), promptly notifying the CSRC or the relevant PRC Governmental Authority and providing it with such material information in accordance with to the applicable Laws, and promptly notifying the Sole Sponsor of such material information to the extent permitted by the applicable Laws; and
(k) without prejudice to the foregoing obligations, do all such other acts and things as may be reasonably required to be done by it to carry into effect the Transfer of Listing.
8.3 The undertakings in this Clause 8 shall remain in full force and effect notwithstanding the completion benefit of the Transfer Governments of Listing and the matters and arrangements referred to or contemplated in this Agreementabove indicated countries.
Appears in 1 contract
Samples: Underwriting Agreement (China Netcom Group CORP (Hong Kong) LTD)
Further Undertakings. 8.1 The Company undertakes with During any period after execution of this Agreement, each party shall take all reasonable efforts to procure any necessary third parties to execute documents and take behaviors reasonably required by relevant parties so that relevant parties may fully enjoy interests under all clauses of this Agreement. All relevant expenses shall be at the Sole Sponsor cost of relevant parties. This Agreement has been executed and delivered as agreement by each party on the date listed first above. Executed as agreement: CHINESE ACADEMY OF SCIENCE (official seal): Legal representative or authorized representative (signature): Witnessed by: Witness signature: Executed as agreement: CHINA NETWORK COMMUNICATIONS GROUP CORPORATION (official seal): Authorized representative (signature): Witnessed by: Witness signature: Executed as agreement: China Netcom Group Corporation (BVI) Limited (official seal): Director (signature): Director or corporate secretary (signature): Witnessed by: Witness signature: EXHIBIT 1 DECLARATION OF TRUST To: Chinese Academy of Science of Xx 00 Xxxxxxx Xxxx, Xxxxxxx Xxxxxxxx, Xxxxxxx, Xxxxx Date: 2004
1 We, China Netcom Group Corporation (BVI) Limited of P.O. Box 3140, Wickhams Cay I, Road Town, Tortola, British Virgin Islands, hereby declare that it shall do all such acts and things and execute all documents as may be required under the Applicable Laws or by the Stock Exchange in connection with the Main Board Listing Application (including, shares specified in the case of Schedule hereto (the Company, effecting "Relevant Shares") are now and have at all necessary filings with times since the Stock Exchange and ensuring that each of the Directors shall sign or cause to be duly signed on their behalf all documents required to be signed by them as Directors Relevant Shares became registered in our name been held in trust for the purposes of or in connection with the Transfer of Listing or such filings)you absolutely.
8.2 The Company undertakes to the Sole Sponsor that the Company shall2 We hereby undertake:
(a) comply with the Main Board Listing Rules and the GEM Listing Rules in relation 2.1 to any supplemental listing document account to the Listing Document and further agrees, except you for the Listing Documentation all distributions or except as otherwise provided pursuant to the provisions of this Agreement or as required by Applicable Laws or the Stock Exchange, not to issue, publish, distribute or make available directly or indirectly to the public any document (including any listing document, announcement, supplement, circular and press release), material or information in connection with the Transfer of Listing, or make any amendment to any of the Listing Documentation, or any amendment or supplement thereto at any time prior to the expiry of the period of six months from the Transfer Date (excluding, for the avoidance of doubt, any document, material or information which may be connected with the Transfer of Listing solely because it extracts, reproduces or contains references to the Transfer of Listing, the Listing Documentation or information contained therein) without the prior written consent of the Sole Sponsor (which consent shall not be unreasonably withheld or delayed); procure the Hong Kong Share Registrar to do all such acts and things as may be required to be done by it in connection with the Transfer of Listing and the transactions contemplated herein and shall procure that such appointment shall not be amended or terminated before completion of the Transfer of Listing without the prior written consent of the Sole Sponsor;
(b) use its reasonable endeavours to procure that the Company will maintain a listing for, and will refrain from taking any action that could jeopardise the listing status of, the Shares on the Main Board of the Stock Exchange for not less than six months after the Transfer Date, except following a withdrawal of such listing which has been approved by the relevant shareholders of the Company in accordance with the Main Board Listing Rules or following an offer (within the meaning of the Hong Kong Code on Takeovers and Mergers issued by the SFC) for the Company becoming unconditional;
(c) the Company shall comply with all Applicable Laws (including, without limitation and for the avoidance of doubt, the rules, regulations and requirements of the Stock Exchange and any other Governmental Authority) including, without limitation:
(i) (A) comply with the Stock Exchange’s rules or other requirements to publish and disseminate to the public, under certain circumstances, information affecting any financial information in the Listing Document, and (B) announce in an announcement any information so required by the Stock Exchange to be published and disseminated to the public in connection with the Transfer of Listing at any time prior to the expiry of the period of six months from the Transfer Date (in the case after the Transfer of Listing, excluding, for the avoidance of doubt, any document, material or information which may be connected with the Transfer of Listing solely because it extracts, reproduces or contains references to the Transfer of Listing, the Listing Documentation or information contained therein), provided, however, that no such announcement shall be issued by the Company without having been submitted to the Sole Sponsor for their review not less than two Business Days prior to such issuance, or such lesser period of time as is necessary for the Company to avoid violation of any Applicable Laws, and (c) comply with the applicable CSRC Rules and where applicable, make all necessary filings (including the CSRC Filings) and obtain all necessary Approvals required under the CSRC Filings;
(ii) deliver to the Stock Exchange the declaration substantially dividends whether in the form set out in Appendix 5of cash, Form F of the Main Board Listing Rules;
(iii) providing to the Sole Sponsor any such other resolutions, consents, authorities, documents, opinions and certificates which are relevant in the context of the Transfer of Listing owing to circumstances arising or events occurring after the date of this Agreement but before 8:00 a.m. on the Transfer Date and as the Sole Sponsor may reasonably require; and
(iv) complying with all the undertakings and commitments made by it in the Listing Document and shall use its best endeavours to procure the Directors to comply with all the undertakings and commitments by the Directors in the Listing Document;
(d) shall not, at any time after the date of this Agreement up to the Transfer Date, amend or agree to amend the Articles of Association save as requested by the Stock Exchange or to comply with the requirements under the Main Board Listing Rules, the GEM Listing Rules or Applicable Laws;
(e) shall not, and procure that no other member of the Group will:
(i) at any time after the date of this Agreement up to the Transfer Date, do or omit to do anything which causes or can reasonably be expected to cause any of the Warranties to be untrue, inaccurate or misleading at any time prior to or on the Transfer Date;
(ii) enter into any commitment or arrangement which has or will or may have a material adverse effect on the Transfer of Listing; and
(iii) take any steps whichstock, in the reasonable opinion of the Sole Sponsorspecie or otherwise, are or will other moneys paid to us on or may be materially inconsistent with any statement or expression, whether of fact, policy, expectation or intention, in the Listing Document;
(f) ensure that any issues identified and as disclosed in the Internal Control Report have been, are being or will promptly be rectified or improved to a sufficient standard or level for the operation and maintenance of efficient systems of internal accounting and financial reporting controls and disclosure and corporate governance controls and procedures that are effective to perform the functions for which they were established and to allow compliance by the Company and the Board with all Applicable Laws in all material respects, and, without prejudice to the generality of the foregoing, to such standard or level recommended or suggested by the Internal Control Consultant in the Internal Control Report;
(g) provide all such information known to it relating to the Group or itself or otherwise as may be reasonably required by the Sole Sponsor in connection with the Transfer of Listing for the purposes of complying with any requirements of Applicable Laws (including, without limitation and for the avoidance of doubt, the applicable CSRS Rules, the requirements of the Stock Exchange or of the SFC or of any other relevant Governmental Authority);
(h) promptly provide full particulars thereof to the Sole Sponsor if, at any time up to or on the date falling 12 months after the Transfer Date, there is a significant change which affects or is capable of affecting any information contained in the Listing Document or a significant new matter arises, the inclusion of information in respect of which would have been required in any the Relevant Shares;
2.2 subject to the terms of the Listing Document had it arisen before any of them was issuedTrust Arrangement Deed In Respect Of Shares In China Netcom Group Corporation (Hong Kong) Limited among Shandong Provincial State-owned Assets Supervision and Administration Commission, andChina Network Communications Group Corporation and ourselves, to transfer or otherwise deal with the Relevant Shares as you may from time to time direct in connection therewith, further
(i) inform the Stock Exchange of such change or matter if so required by the Sole Sponsorwriting;
(ii) at its expense, promptly prepare documentation containing details 2.3 to exercise the voting powers and other rights in respect of such change or matter if so required by the Stock Exchange or the Sole Sponsor and in a form approved by the Sole Sponsor, deliver such documentation through the Sole Sponsor to the Stock Exchange for approval and publish such documentation Relevant Shares in such manner as the Stock Exchange or the Sole Sponsor may require;
(iii) at its expense, make all necessary announcements you shall from time to the Stock Exchange to avoid a false market being created time direct in the Shareswriting; and
(iv) not issue, publish, distribute 2.4 to sign or make available publicly any announcement, circular, document execute such documents or other communication relating to any such change or matter without the prior written consent of the Sole Sponsor, and instruments as may be necessary for the purposes of this Clause 8.2Paragraph 2.
3 In consideration of us holding the Relevant Shares in trust for you and our undertakings as set out in Paragraph 2 above, significant means significant you agree to hold us harmless for the purpose of making an informed assessment of the matters mentioned in Rule 11.07 of the Main Board Listing Rules;
(i) comply with the all Applicable Laws (includingany costs, without limitation, the CSRC Archive Rules) expenses and liabilities incurred or arisen in connection with (A) the establishment and maintenance holding of adequate and effective internal control measures and internal systems the Relevant Shares in trust for maintenance of data protection, confidentiality and archive administration; (B) the relevant requirements and approval and filing procedures in connection with its handling, disclosure, transfer and retention of transfer of state secrets and working secrets of government agencies you or any other documents of our acts performed under or materials that would otherwise be detrimental pursuant to national securities or public interest (this Declaration. References herein to the Relevant Information); and (C) maintenance of confidentiality of Shares shall where the subject or context permits or requires include references to any Relevant Information;
(j) where there is any material information that shall be reported to the CSRC pursuant to the Applicable Laws (including, without limitation, the applicable CSRC Rules), promptly notifying the CSRC or the relevant PRC Governmental Authority and providing it with such material information in accordance with to the applicable Laws, and promptly notifying the Sole Sponsor of such material information to the extent permitted by the applicable Laws; and
(k) without prejudice to the foregoing obligations, do all such other acts and things as may be reasonably required to be done by it to carry into effect the Transfer of Listing.
8.3 The undertakings in this Clause 8 shall remain in full force and effect notwithstanding the completion of the Transfer of Listing and the matters and arrangements referred to or contemplated in this AgreementRelevant Shares.
Appears in 1 contract
Samples: Trust Arrangement Agreement (China Netcom Group CORP (Hong Kong) LTD)
Further Undertakings. 8.1 The Company undertakes with the Sole Sponsor that it shall do all such acts and things and execute all documents as may be required under the Applicable Laws or by the Stock Exchange in connection with the Main Board Listing Application (including, in the case of the Company, effecting all necessary filings with the Stock Exchange and ensuring that each of the Directors shall sign or cause to be duly signed on their behalf all documents required to be signed by them as Directors for the purposes of or in connection with the Transfer of Listing or such filings).
8.2 The Company undertakes to each of the Sole Sponsor that Joint Sponsors, the Overall Coordinators, the Joint Global Coordinators, the Joint Bookrunners, the Joint Lead Managers, the Co-lead Manager, the CMIs and the other Hong Kong Underwriters that, and each of the other Warrantors undertakes to procure that: the Company shallwill comply in all material respects with the terms and conditions of the Hong Kong Public Offering and, in particular, without limitation:
(a) to comply with all applicable Laws in effect from time to time, in particular, to comply with the Main Board Listing Rules obligations imposed upon it by the Companies Ordinance, the Companies (Winding Up and Miscellaneous Provisions) Ordinance and the GEM Listing Rules in relation respect of or by reason of the making of the Global Offering including, but without limitation, the making of all necessary filings and obtaining all necessary Approvals with the Registrar of Companies in Hong Kong, the Stock Exchange and the SFC and any other relevant Governmental Authority and the making available of documents on display in the manner referred to any supplemental listing document in Appendix V to the Listing Document Prospectus “Documents Delivered to the Registrar of Companies and further agreesAvailable on Display” during the period specified in that paragraph;
(b) to comply in all material aspects with the terms and conditions of the Global Offering and, except in particular, to allot and issue the Hong Kong Offer Shares to successful applicants under the Hong Kong Public Offering and, if any of the Hong Kong Offer Shares falls to be taken up pursuant to Clauses 3.4.6 and 3.4.7, to the applicants under Clause 3.4.6(i) or, as the case may be, as the Overall Coordinators directs; and
(c) as soon as practicable following announcement of the basis of allocation of the Hong Kong Offer Shares and in any event no later than 5:00 p.m. on December 4, 2023 (the date specified in the Prospectus for the Listing Documentation despatch of the share certificates), to cause definitive share certificates representing the Hong Kong Offer Shares to be posted or except made available for collection in accordance with the terms of the Hong Kong Public Offering to successful applicants or, as otherwise provided pursuant the case may be, procure that the share certificates for Hong Kong Offer Shares in respect of which successful applicants have elected for delivery into CCASS shall be duly delivered to the provisions of this Agreement or as required by Applicable Laws or the Stock Exchange, not to issue, publish, distribute or make available directly or indirectly depositary for HKSCC for credit to the public stock account of such CCASS participant(s) as may be specified for such purpose by or on behalf of the relevant applicant; the Company will use its best endeavours to procure that the Registrar, the White Form eIPO Service Provider and the Receiving Bank will comply with the terms of their respective appointment, all applicable Laws (including, without limitation, the Guidelines for Electronic Public Offerings published by the SFC) and any document (including any listing document, announcement, supplement, circular and press release), material or information reasonable instructions from the Overall Coordinators in connection with the Transfer of ListingGlobal Offering, or make any amendment to any of the Listing Documentation, or any amendment or supplement thereto at any time prior to the expiry of the period of six months from the Transfer Date (excluding, for the avoidance of doubt, any document, material or information which may be connected with the Transfer of Listing solely because it extracts, reproduces or contains references to the Transfer of Listing, the Listing Documentation or information contained therein) without the prior written consent of the Sole Sponsor (which consent shall not be unreasonably withheld or delayed); procure the Hong Kong Share Registrar to and will do all such acts and things as may be required to be done by it each of them and by the time specified or necessary in connection with the Transfer of Listing Global Offering and the transactions contemplated herein thereunder, and in particular, but without limitation, as set out in the Registrar Agreement, any agreement between the Company and the White Form eIPO Service Provider and the Receiving Bank Agreement, respectively; none of the terms of the appointments of the Registrar, the White Form eIPO Service Provider and the Receiving Bank shall procure that such appointment shall not be amended or terminated before completion of the Transfer of Listing without the prior written consent of the Sole Sponsor;
Overall Coordinators (bfor themselves and on behalf of the other Hong Kong Underwriters) use its reasonable endeavours to procure that which consent shall not be unreasonably withheld or delayed; each of the Company will maintain a listing forWarrantors will, and will refrain from taking cause its Affiliates and subsidiaries and any action that could jeopardise party acting on its behalf to, comply with the Companies Ordinance, the Companies (Winding Up and Miscellaneous Provisions) Ordinance and the Listing Rules (as relevant) in relation to supplemental listing status ofdocuments, if any, and further agrees not to issue, publish, distribute or make available any announcement, circular or document in connection with the Global Offering without the prior written consent of the Overall Coordinators (for themselves and on behalf of the other Hong Kong Underwriters) and the Joint Sponsors; as soon as practicable and in any event before the commencement of dealings in the Shares on the Main Board of the Stock Exchange for not less than six months after the Transfer DateExchange, except following a withdrawal of such listing which has been approved by the relevant shareholders of the Company in accordance with the Main Board Listing Rules or following an offer (within the meaning of the Hong Kong Code on Takeovers and Mergers issued by the SFC) for the Company becoming unconditional;
(c) the Company shall comply with all Applicable Laws (including, without limitation and for the avoidance of doubt, the rules, regulations and requirements of the Stock Exchange and any other Governmental Authority) including, without limitation:
(i) (A) comply with the Stock Exchange’s rules or other requirements to publish and disseminate to the public, under certain circumstances, information affecting any financial information in the Listing Document, and (B) announce in an announcement any information so required by the Stock Exchange to be published and disseminated to the public in connection with the Transfer of Listing at any time prior to the expiry of the period of six months from the Transfer Date (in the case after the Transfer of Listing, excluding, for the avoidance of doubt, any document, material or information which may be connected with the Transfer of Listing solely because it extracts, reproduces or contains references to the Transfer of Listing, the Listing Documentation or information contained therein), provided, however, that no such announcement shall be issued by the Company without having been submitted to the Sole Sponsor for their review not less than two Business Days prior to such issuance, or such lesser period of time as is necessary for the Company to avoid violation of any Applicable Laws, and (c) comply with the applicable CSRC Rules and where applicable, make all necessary filings (including the CSRC Filings) and obtain all necessary Approvals required under the CSRC Filings;
(ii) deliver will submit to the Stock Exchange the declaration substantially in the form set out in Appendix 5, Form F of the Main Board Listing Rules acceptable to the Stock Exchange via FINI; none of the connected persons (as defined in the Listing Rules;
(iii) providing of the Company will apply for or acquire any Offer Shares either in their own names or through nominees unless permitted to do so under the Listing Rules and obtain confirmation from the Stock Exchange to that effect; the Company will use all of the net proceeds received by it pursuant to the Sole Sponsor any such other resolutions, consents, authorities, documents, opinions and certificates which are relevant Global Offering in the context manner specified in the section headed “Future plans and use of proceeds - Use of net proceeds” in the Prospectus and in the case of any change in the use of the Transfer net proceeds, the Company shall comply with the relevant requirements under the Listing Rules, the Articles of Listing owing Association and any applicable Laws. The Company will not directly or indirectly use any of the proceeds from the International Placing to circumstances arising fund any operations in, to finance any investments, projects or events occurring after activities in, to make any payments to, any country, or to make any payments to, or finance any activities with, any person, targeted by any of the economic sanctions promulgated by any Executive Order issued by the President of the United States or administered by the United States Treasury Department’s Office of Foreign Asset Control. The Company will maintain and implement adequate internal controls and procedures to monitor and audit transactions that are reasonably designed to detect and prevent any use of the proceeds from the Global Offering that is inconsistent with any of the Company’s representations and applicable obligations; except pursuant to the Capitalization Issue and the Global Offering (including pursuant to the Over-allotment Option) and Shares that may be issued under the Share Scheme, during the period commencing on the date of this Agreement but before 8:00 a.m. and ending on, and including, the date that is six months after the Listing Date (the “First Six-Month Period”), the Company will not, and will procure each other Group Company not to, without the prior written consent of the Joint Sponsors and the Overall Coordinators (for themselves and on behalf of the Transfer Date other Hong Kong Underwriters) and unless in compliance with the requirements of the Listing Rules: allot, issue, sell, accept subscription for, offer to allot, issue or sell, contract or agree to allot, issue or sell, mortgage, charge, pledge, hypothecate, lend, grant or sell any option, warrant, contract or right to subscribe for or purchase, grant or purchase any option, warrant, contract or right to allot, issue or sell, or otherwise transfer or dispose of or create an Encumbrance over, or agree to transfer or dispose of or create an Encumbrance over, either directly or indirectly, conditionally or unconditionally, any Shares or other securities of the Company, as applicable, or any interest in any of the Sole Sponsor may reasonably requireforegoing (including, without limitation, any securities convertible into or exchangeable or exercisable for or that represent the right to receive, or any other warrants or other rights to purchase, any Shares or any shares of such other Group Company, as applicable), or deposit any Shares or other securities of the Company, as applicable, with a depositary in connection with the issue of depositary receipts; and
or repurchase any Shares or other securities of the Company, as applicable, or 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 Shares or other securities of the Company, as applicable, or any interest in any of the foregoing (ivincluding, without limitation, any securities convertible into or exchangeable or exercisable for or that represent the right to receive, or any warrants or other rights to purchase, any Shares or other securities of the Company, as applicable); or enter into any transaction with the same economic effect as any transactions specified in Clause 6.1(viii)(a) complying with all or 6.1(viii)(b) above; or offer to or agree to or announce any intention to effect any transaction specified in Clause 6.1(viii)(a), 6.1(viii)(b) or 6.1(viii)(c) above, in each case, whether any of the undertakings transactions specified in Clause 6.1(viii)(a), 6.1(viii)(b) , 6.1(viii)(c) or 6.1(viii)(d) above is to be settled by delivery of Shares or other securities of the Company, as applicable, or in cash or otherwise (whether or not the issue of such Shares or other shares or securities will be completed within the First Six-Month Period); the Company will not, and commitments made by it will procure each other Group Company not to, enter into any of the transactions specified in Clause 6.1(viii)(a), 6.1(viii)(b) or 6.1(viii)(c) above or offer to or agree to or announce any intention to effect any such transaction, such that any of the Controlling Shareholders would cease to be a “controlling shareholder” (as defined in the Listing Document and shall use its best endeavours to procure Rules) of the Directors to comply with all Company during the undertakings and commitments by period of six months immediately following the Directors expiry of the First Six-Month Period (the “Second Six-Month Period”); in the event that, during the Second Six-Month Period, the Company enters into any of the transactions specified in Clause 6.1(viii)(a), 6.1(viii)(b) or 6.1(viii)(c) above or offers to or agrees to or announces any intention to effect any such transaction, the Company shall take all reasonable steps to ensure that it will not create a disorderly or false market in any Shares or other securities of the Company; the Company will maintain the listing of the Shares on the Stock Exchange for one year from the Listing Document;
Date; without prejudice to Clauses 3.4.6(ii), 3.6.2 and 3.6.3, the Company will pay any tax, duty, levy, fee or other charge or expense (dif any) which may be payable in Hong Kong or elsewhere, whether pursuant to the requirement of any Laws or otherwise, in connection with the creation, allotment, issue, sale or transfer of the Offer Shares, the Global Offering, or the execution and delivery of, or the performance of any of the provisions under, this Agreement; the Company shall not, not at any time after the date of this Agreement up to the Transfer Date, amend or agree to amend the Articles of Association save as requested by the Stock Exchange or to comply with the requirements under the Main Board Listing Rules, the GEM Listing Rules or Applicable Laws;
(e) shall not, and procure that no other member of the Group will:
(i) at any time after including the date of this Agreement up to on which all the Transfer DateConditions are fulfilled or waived, do or omit to do anything which causes or can reasonably be expected to cause any of the Warranties to be untrue, inaccurate or misleading at any time prior to or on the Transfer Date;
(ii) enter into any commitment or arrangement which has or will or may have a material adverse effect on the Transfer of Listing; and
(iii) take any steps which, in the reasonable opinion of the Sole SponsorJoint Sponsors, are or will or may would be materially inconsistent with any expression of policy or intention in the Prospectus or make any material amendment to any of the service contracts of the executive and non-executive Directors or waive or release an executive or non-executive Director from any provision of his/her service contract and the Company shall do all such acts and things to enforce or preserve the rights of the Company under the service contracts; at any time within the period during which the Over-allotment Option may be exercised, the Company shall not declare or make any payment of dividends, make any other distribution of profits whatsoever, any return of value or any issue of bonus Shares to its shareholders or offer or agree to do any of the foregoing or announce any intention to do so; if at any time prior to the completion of the issue of the Offer Shares by the Company, any event occurs as a result of which any of the Offer Documents, as then amended or supplemented, would include any untrue statement of a material fact or expression, whether of fact, policy, expectation or intentionomit to state any material fact necessary to make the statements therein, in the Listing Document;
(f) ensure that any issues identified and as disclosed in light of the Internal Control Report have been, are being or will promptly be rectified or improved to a sufficient standard or level for the operation and maintenance of efficient systems of internal accounting and financial reporting controls and disclosure and corporate governance controls and procedures that are effective to perform the functions for circumstances under which they were established and made, not misleading, or if it should be necessary to allow compliance by amend or supplement the Offer Documents to comply with applicable Laws, the Company and the Board with all Applicable Laws in all material respects, and, without prejudice Warrantors will promptly notify the Joint Sponsors and will prepare and provide to the generality of Joint Sponsors an amendment or supplement which will correct such statement or omission and effect such compliance and will not distribute any such amendment or supplement which the foregoing, to such standard or level recommended or suggested by the Internal Control Consultant in the Internal Control Report;
(g) provide all such information known to it relating to the Group or itself or otherwise as may be reasonably required by the Sole Sponsor in connection with the Transfer of Listing for the purposes of complying with any requirements of Applicable Laws (including, without limitation and for the avoidance of doubt, the applicable CSRS Rules, the requirements of the Stock Exchange or of the SFC or of any other relevant Governmental Authority);
(h) promptly provide full particulars thereof to the Sole Sponsor Joint Sponsors objects; if, at any time up to or on the date falling 12 months 30 days after the Transfer Listing Date, there is a significant change which affects or is capable of affecting any information contained in the Listing Document Offer Documents or a significant new matter arises, the inclusion of information in respect of which would have been required in any of the Listing Document Offer Documents had it arisen before any of them was issued, and, in connection therewith, furtherthen the Company shall:
(ia) promptly provide full particulars thereof to the Joint Sponsors and the Overall Coordinators;
(b) if so reasonably required by the Joint Sponsors, inform the Stock Exchange of such change or matter if so required by the Sole Sponsormatter;
(iic) at its expense, promptly prepare documentation containing details of such change or matter (if so required by the Stock Exchange Exchange, or if so reasonably required by the Joint Sponsors or the Sole Sponsor Overall Coordinators) promptly prepare and in a form approved by the Sole Sponsor, deliver such documentation (through the Sole Sponsor Joint Sponsors) deliver to the Stock Exchange for approval documentation containing details thereof in a form agreed by the Joint Sponsors and publish such documentation in such manner as the Stock Exchange or Exchange, the Sole Sponsor Joint Sponsors and the Overall Coordinators may require;; and
(iiid) at its expense, make all any necessary announcements to through the Stock Exchange and the press to avoid a false market being created in the Offer Shares; and
(iv) . The Company undertakes not to issue, publish, distribute or make available publicly any announcement, circular, document or other communication relating to any such change or matter aforesaid without the prior written consent of the Sole Sponsor, and for the purposes of this Clause 8.2, significant means significant for the purpose of making an informed assessment of the matters mentioned in Rule 11.07 of the Main Board Listing Rules;
(i) comply with the all Applicable Laws (including, without limitation, the CSRC Archive Rules) in connection with (A) the establishment and maintenance of adequate and effective internal control measures and internal systems for maintenance of data protection, confidentiality and archive administration; (B) the relevant requirements and approval and filing procedures in connection with its handling, disclosure, transfer and retention of transfer of state secrets and working secrets of government agencies or any other documents or materials that would otherwise be detrimental to national securities or public interest (the Relevant Information); and (C) maintenance of confidentiality of any Relevant Information;
(j) where there is any material information that shall be reported to the CSRC pursuant to the Applicable Laws (including, without limitation, the applicable CSRC Rules), promptly notifying the CSRC or the relevant PRC Governmental Authority and providing it with such material information in accordance with to the applicable Laws, and promptly notifying the Sole Sponsor of such material information to the extent permitted by the applicable Laws; and
(k) without prejudice to the foregoing obligations, do all such other acts and things as may be reasonably required to be done by it to carry into effect the Transfer of Listing.
8.3 The undertakings in this Clause 8 shall remain in full force and effect notwithstanding the completion of the Transfer of Listing Joint Sponsors and the matters and arrangements referred to or contemplated in this Agreement.Overall Coordinators
Appears in 1 contract
Samples: Hong Kong Underwriting Agreement
Further Undertakings. 8.1 6.1 The Company undertakes to each of the Sole Global Coordinator, the Sole Bookrunner, the Sole Sponsor, the Joint Lead Managers and the Hong Kong Underwriters that, and the Warranting Shareholder undertakes to procure that:
(i) the Company will comply in all respects with the Sole Sponsor that terms and conditions of the Hong Kong Public Offering and, in particular, without limitation:
(a) to comply with all applicable Laws in effect from time to time, in particular, to comply with the obligations imposed upon it shall do all such acts by the Companies Ordinance, Companies (Winding Up and things Miscellaneous Provisions) Ordinance and execute all documents as may be required under the Applicable Laws Listing Rules in respect of or by reason of the Stock Exchange in connection with making of the Main Board Listing Application (Global Offering including, in but without limitation, the case making of the Company, effecting all necessary filings with the Registrar of Companies in Hong Kong, the Stock Exchange and/or the SFC and ensuring that each the making available for inspection in Hong Kong of the Directors shall sign or cause documents and in the manner referred to in the paragraph headed “Documents Delivered to the Registrar of Companies and Available for Inspection” of Appendix V to the Prospectus during the period specified in that paragraph;
(b) to comply in all aspects with the terms and conditions of the Global Offering and, in particular, to allot and issue the Hong Kong Offer Shares to successful applicants under the Hong Kong Public Offering and, if any of the Hong Kong Offer Shares falls to be duly signed on their behalf all documents required taken up pursuant to be signed by them as Directors for the purposes of or in connection with the Transfer of Listing or such filings).
8.2 The Company undertakes Clauses 3.4.6 and 3.4.7, to the applicants under Clause 3.4.6(i) or, as the case may be, as the Sole Sponsor Global Coordinator directs;
(c) do all such things as are necessary to ensure that the Company shall:
(a) comply with grant by the Listing Committee of the Stock Exchange of the listing of, and permission to deal in, the Shares on the Main Board Listing Rules and the GEM Listing Rules in relation to any supplemental listing document to the Listing Document and further agrees, except for the Listing Documentation or except as otherwise provided pursuant to the provisions of this Agreement or as required by Applicable Laws or the Stock Exchange, not to issue, publish, distribute or make available directly or indirectly to the public any document Exchange (including any listing document, announcement, supplement, circular additional Shares to be issued pursuant to any exercise of the Over-Allotment Option) is obtained and press releasenot revoked; and
(d) as soon as practicable following announcement of the basis of allocation of the Hong Kong Offer Shares and in any event no later than 5:00 p.m. on 12 March 2018 (the date specified in the Prospectus for the despatch of the share certificates), material to cause definitive share certificates representing the Hong Kong Offer Shares to be posted or information made available for collection in connection accordance with the Transfer of Listing, or make any amendment to any terms of the Listing DocumentationHong Kong Public Offering to successful applicants or, or any amendment or supplement thereto at any time prior as the case may be, procure that the share certificates for Hong Kong Offer Shares in respect of which successful applicants have elected for delivery into CCASS shall be duly delivered to the expiry depositary for Hong Kong Securities Clearing Company Limited for credit to the stock account of such CCASS participant(s) as may be specified for such purpose by or on behalf of the period of six months from relevant applicant;
(ii) the Transfer Date (excluding, for the avoidance of doubt, any document, material or information which may be connected with the Transfer of Listing solely because it extracts, reproduces or contains references Company will use its best endeavours to the Transfer of Listing, the Listing Documentation or information contained therein) without the prior written consent of the Sole Sponsor (which consent shall not be unreasonably withheld or delayed); procure that the Hong Kong Share Registrar to Registrar, the White Form eIPO Service Provider and the Receiving Bank will comply with the terms of their respective appointment and will do all such acts and things as may be required to be done by it each of them and by the time specified or necessary in connection with the Transfer of Listing Global Offering and in particular, but without limitation, as set out in the Share Registration Services Agreements, White Form eIPO Service Agreement and the transactions contemplated herein Receiving Bank Agreement, respectively. None of the terms of the appointment of the Hong Kong Share Registrar, the White Form eIPO Service Provider and the Receiving Bank shall procure that such appointment shall not be amended or terminated before completion of the Transfer of Listing without the prior written consent of the Sole SponsorGlobal Coordinator (for itself and on behalf of the Hong Kong Underwriters) which consent shall not be unreasonably withheld or delayed;
(biii) use its reasonable endeavours to procure that each of the Company will maintain a listing forWarrantors will, and will refrain from taking cause its Affiliates and subsidiaries and any action that could jeopardise party acting on its behalf to, comply with the Listing Rules and Companies (Winding Up and Miscellaneous Provisions) Ordinance (as relevant) in relation to supplemental listing status ofdocuments and further agrees not to issue, publish, distribute or make available any announcement, circular or document without the prior written consent of the Sole Sponsor and the Sole Global Coordinator;
(iv) as soon as practicable and in any event before the commencement of dealings in the Shares on the Main Board of the Stock Exchange for not less than six months after the Transfer DateExchange, except following a withdrawal of such listing which has been approved by the relevant shareholders of the Company in accordance with the Main Board Listing Rules or following an offer (within the meaning of the Hong Kong Code on Takeovers and Mergers issued by the SFC) for the Company becoming unconditional;
(c) the Company shall comply with all Applicable Laws (including, without limitation and for the avoidance of doubt, the rules, regulations and requirements of the Stock Exchange and any other Governmental Authority) including, without limitation:
(i) (A) comply with the Stock Exchange’s rules or other requirements to publish and disseminate to the public, under certain circumstances, information affecting any financial information in the Listing Document, and (B) announce in an announcement any information so required by the Stock Exchange to be published and disseminated to the public in connection with the Transfer of Listing at any time prior to the expiry of the period of six months from the Transfer Date (in the case after the Transfer of Listing, excluding, for the avoidance of doubt, any document, material or information which may be connected with the Transfer of Listing solely because it extracts, reproduces or contains references to the Transfer of Listing, the Listing Documentation or information contained therein), provided, however, that no such announcement shall be issued by the Company without having been submitted to the Sole Sponsor for their review not less than two Business Days prior to such issuance, or such lesser period of time as is necessary for the Company to avoid violation of any Applicable Laws, and (c) comply with the applicable CSRC Rules and where applicable, make all necessary filings (including the CSRC Filings) and obtain all necessary Approvals required under the CSRC Filings;
(ii) will deliver to the Stock Exchange the declaration substantially in the form set out in Appendix 5, Form F of the Main Board Listing RulesRules acceptable to the Stock Exchange;
(iiiv) providing save for the Distribution, the Company will use all reasonable efforts to procure that none of the connected persons or their respective associates (as defined in the Listing Rules) of the Company will apply for or acquire, either by itself or through a company controlled by it, any Offer Shares either in their own names or through nominees unless permitted to do so under the Listing Rules and obtain confirmation from the Stock Exchange to that effect;
(vi) save for any change to the plans for the use of proceeds subject to the Listing Rules, the Company will use all of the net proceeds received by it pursuant to the Global Offering in the manner specified in the section headed “Future Plans and Use of Proceeds - Use of Proceeds” in the Prospectus. The Company will maintain and implement adequate internal controls and procedures to monitor and audit transactions that are reasonably designed to detect and prevent any use of the proceeds from the Global Offering that is inconsistent with any of the Company’s representations and applicable obligations;
(vii) except pursuant to the Loan Capitalisation Issue, the Distribution, Global Offering, the Over-allotment Option, options which may be granted under any share option scheme of any member of the Group or with the prior written consent of the Sole Sponsor, the Sole Global Coordinator (for itself and on behalf of the Hong Kong Underwriters) and unless in compliance with the requirements of the Listing Rules, the Company will not, at any time within the First Six Months Period, (a) offer, accept subscription for, pledge, allot, issue, sell, lend, mortgage, assign, charge, contract to issue or sell, sell 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 or create an Encumbrance over, either directly or indirectly, conditionally or unconditionally, any such 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 in any of the foregoing) or deposit any Shares or other securities of the Company with a depositary in connection with the issue of depositary receipts; 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 in any of the foregoing (including, without limitation, any securities convertible into or exchangeable or exercisable for or that represent the right to receive, or any warrants or other rights to purchase, any Shares or other securities of the Company or any interest in any of the foregoing); or (c) enter into any transaction with the same economic effect as any transaction described in (a) or (b) above; (d) agree or contract to, or publicly announce any intention to enter into, any transaction described in (a) or (b) above; in each case whether any such transaction described in
(a) or (b) or (c) above is to be settled by delivery of Shares or other securities, in cash or otherwise. The Company will not enter into any of the transactions described above or agree or contract to or publicly announce any intention to enter into any such transactions such that the Warranting Shareholder would cease to be the controlling shareholder (as defined in the Listing Rules) of the Company during the Second Six Months Period; and the Company will ensure that if any of the transactions described above are carried out during the Second Six Months Period, it will take all reasonable steps to ensure that any such act will not create a disorderly or false market for any Shares or other securities of the Company;
(viii) without prejudice to Clauses 3.4.6(ii), 3.6.2 and 3.6.3, the Company will pay (and indemnify each of the Hong Kong Underwriters) any tax, duty, levy, fee or other charge or expense (if any) which may be payable in the Cayman Islands, Hong Kong or elsewhere, whether pursuant to the requirement of any Laws or otherwise, in connection with the creation, allotment, issue, sale or transfer of the Offer Shares, the Global Offering, and the execution and delivery of, or the performance of any of the provisions under, this Agreement;
(ix) the Company shall provide to the Sole Sponsor any Sponsor, the Sole Global Coordinator, the Sole Bookrunner and the Hong Kong Underwriters all such other resolutionsinformation known to the Company or which on due and careful enquiry ought to be known to the Company and whether relating to the Group or the Company or the Controlling Shareholder or otherwise as may be reasonably required by the Sole Sponsor, consentsthe Sole Global Coordinator, authorities, documents, opinions the Sole Bookrunner (for itself and certificates which are relevant in the context on behalf of the Transfer Hong Kong Underwriters) in connection with the Global Offering for the purposes of Listing owing to circumstances arising or events occurring after the date of this Agreement but before 8:00 a.m. on the Transfer Date and as the Sole Sponsor may reasonably require; and
(iv) complying with all any requirements of applicable Laws (including, for the undertakings and commitments made by it in avoidance of doubt, the Listing Document and shall use its best endeavours to procure requirements of the Directors to comply with all Stock Exchange or of the undertakings and commitments by the Directors in the Listing DocumentSFC or of any other relevant authority);
(dx) the Company shall not, not at any time after the date of this Agreement up to and including the Transfer Datedate on which all the Conditions are fulfilled or waived, amend or agree to amend the Articles of Association save as requested by the Stock Exchange or enter into or allow any Group Company to comply with the requirements under the Main Board Listing Rules, the GEM Listing Rules or Applicable Laws;
(e) shall not, and procure that no other member of the Group will:
(i) at any time after the date of this Agreement up to the Transfer Date, do or omit to do anything which causes or can reasonably be expected to cause any of the Warranties to be untrue, inaccurate or misleading at any time prior to or on the Transfer Date;
(ii) enter into any commitment or arrangement which has could materially and adversely affect the Global Offering or will which is outside the ordinary course of business of any member of the Group or may have a material adverse effect on the Transfer of Listing; and
(iii) take any steps which, in the reasonable opinion of the Sole SponsorGlobal Coordinator, are or will or may would be materially inconsistent with any expression of policy or intention in the Prospectus or make any material amendment to any of the service contracts of the Directors or waive or release a Director from any provision of his service contract and the Company shall do all such acts and things to enforce or preserve the rights of the Company under the service contracts;
(xi) at any time within the period during which the Over-allotment Option may be exercised, the Company shall not declare or make any payment of dividends, make any other distribution of profits whatsoever, any return of value or any issue of bonus Shares to its shareholders or offer or agree to do any of the foregoing or announce any intention to do so;
(xii) if at any time prior to the completion of the issue of the Offer Shares by the Company, any event occurs as a result of which any of the Offer Documents, as then amended or supplemented, would include any untrue statement of a material fact or expression, whether of fact, policy, expectation or intentionomit to state any material fact necessary to make the statements therein, in the Listing Documentlight of the circumstances under which they were made, not misleading, or if it should be necessary to amend or supplement the Offer Documents to comply with applicable Laws, the Company and the Warranting Shareholder will promptly notify the Sole Sponsor and Sole Global Coordinator and will prepare and provide to the Sole Sponsor and Sole Global Coordinator an amendment or supplement which will correct such statement or omission and effect such compliance and will not distribute any such amendment or supplement to which the Sole Sponsor and Sole Global Coordinator objects;
(fxiii) ensure that any issues identified and as disclosed in any internal control report prepared by the Internal Control Report Controls Consultant have been, are being or will promptly be rectified or improved to a sufficient standard or level for the operation and maintenance of efficient systems of internal accounting and financial reporting controls and disclosure and corporate governance controls and procedures that are effective to perform the functions for which they were established and to allow compliance by the Company and the Board with all Applicable Laws in all material respectsapplicable Laws, and, without prejudice to the generality of the foregoing, to such standard or level recommended or suggested by the Internal Control Controls Consultant in the Internal Control Reportits internal controls report;
(gxiv) provide all such information known to it relating to the Group or itself or otherwise as may be reasonably required by the Sole Sponsor in connection with the Transfer of Listing for the purposes of complying with any requirements of Applicable Laws (including, without limitation and for the avoidance of doubt, the applicable CSRS Rules, the requirements of the Stock Exchange or of the SFC or of any other relevant Governmental Authority);
(h) promptly provide full particulars thereof to the Sole Sponsor if, at any time up to or on the date falling 12 months 30 days after the Transfer Listing Date, there is a significant change which affects or is capable of affecting any information contained in the Listing Document Offer Documents or a significant new matter arises, the inclusion of information in respect of which would have been required in any of the Listing Document Offer Documents had it arisen before any of them was issued, and, in connection therewith, furtherthen the Company shall:
(ia) to the extent that permitted by and subject to the compliance with the applicable Laws and the Listing Rules, promptly provide full particulars thereof to the Sole Sponsor and the Sole Global Coordinator;
(b) if so required by the Sole Sponsor and the Sole Global Coordinator, inform the Stock Exchange of such change or matter if so required by the Sole Sponsormatter;
(iic) at its expense, promptly prepare documentation containing details of such change or matter (if so required by the Stock Exchange or the Sole Sponsor and in a form approved by the Sole Sponsor, deliver such documentation Global Coordinator) promptly prepare and (through the Sole Sponsor and the Sole Global Coordinator) deliver to the Stock Exchange for approval documentation containing details thereof in a form agreed by the Sole Sponsor and the Sole Global Coordinator and publish such documentation in such manner as the Stock Exchange or the Sole Sponsor and the Sole Global Coordinator may require;; and
(iiid) at its expense, make all any necessary announcements to through the Stock Exchange and the press to avoid a false market being created in the Offer Shares; and
(iv) not issue. To the extent that permitted by and subject to the compliance with the applicable Laws and the Listing Rules, publishthe Company undertakes to have prior consultation with the Sole Sponsor and the Sole Global Coordinator prior to issuing, distribute publishing, distributing or make making available publicly any announcement, circular, document or other communication relating to any such change or matter without the prior written consent of the Sole Sponsor, and for the purposes of this Clause 8.2, significant means significant for the purpose of making an informed assessment of the matters mentioned in Rule 11.07 of the Main Board Listing Rules;
(i) comply with the all Applicable Laws (including, without limitation, the CSRC Archive Rules) in connection with (A) the establishment and maintenance of adequate and effective internal control measures and internal systems for maintenance of data protection, confidentiality and archive administration; (B) the relevant requirements and approval and filing procedures in connection with its handling, disclosure, transfer and retention of transfer of state secrets and working secrets of government agencies or any other documents or materials that would otherwise be detrimental to national securities or public interest (the Relevant Information); and (C) maintenance of confidentiality of any Relevant Information;
(j) where there is any material information that shall be reported to the CSRC pursuant to the Applicable Laws (including, without limitation, the applicable CSRC Rules), promptly notifying the CSRC or the relevant PRC Governmental Authority and providing it with such material information in accordance with to the applicable Laws, and promptly notifying the Sole Sponsor of such material information to the extent permitted by the applicable Laws; and
(k) without prejudice to the foregoing obligations, do all such other acts and things as may be reasonably required to be done by it to carry into effect the Transfer of Listingaforesaid.
8.3 The undertakings in this Clause 8 shall remain in full force and effect notwithstanding the completion of the Transfer of Listing and the matters and arrangements referred to or contemplated in this Agreement.
Appears in 1 contract
Samples: Hong Kong Underwriting Agreement
Further Undertakings. 8.1 The Company undertakes to each of the Sole Sponsor, the Sponsor-OC, the Overall Coordinators, the Joint Global Coordinators, the Joint Bookrunners, the Joint Lead Managers, the Hong Kong Underwriters and the Capital Market Intermediaries that, and each of the other Warrantors undertakes to procure that:
(i) the Company will comply in all respects with the Sole Sponsor that terms and conditions of the Hong Kong Public Offering and, in particular, without limitation:
(a) to comply with all applicable Laws in effect from time to time, in particular, to comply with the obligations imposed upon it shall do all such acts by the Companies Ordinance, the Companies (Winding Up and things Miscellaneous Provisions) Ordinance and execute all documents as may be required under the Applicable Laws Listing Rules in respect of or by reason of the Stock Exchange in connection with making of the Main Board Listing Application (Global Offering including, in but without limitation, the case making of the Company, effecting all necessary filings with the Registrar of Companies in Hong Kong and the Stock Exchange and ensuring the making available for documents on display and in the manner referred to in the paragraph headed “Documents delivered to the registrar of companies in Hong Kong and available on display” of Appendix VII to the Prospectus during the period specified in that each paragraph;
(b) to comply in all aspects with the terms and conditions of the Directors shall sign or cause Global Offering and, in particular, to allot and issue the Hong Kong Offer Shares to successful applicants under the Hong Kong Public Offering and, if any of the Hong Kong Offer Shares falls to be duly signed taken up pursuant to Clauses 3.4.6 and 3.4.7, to the applicants under Clause 3.4.6(i) or, as the case may be, as the Sponsor-OC direct; and
(c) as soon as practicable following announcement of the basis of allocation of the Hong Kong Offer Shares and in any event on their behalf all documents required the date specified in the Prospectus for the despatch of the share certificates, to cause definitive share certificates representing the Hong Kong Offer Shares to be signed posted or made available for collection in accordance with the terms of the Hong Kong Public Offering to successful applicants or, as the case may be, procure that the share certificates for Hong Kong Offer Shares in respect of which successful applicants have elected for delivery into CCASS shall be duly delivered to the depositary for HKSCC for credit to the stock account of such CCASS participant(s) as may be specified for such purpose by them as Directors or on behalf of the relevant applicant;
(ii) the Company will use it reasonable endeavours to procure that the H Share Registrar, the White Form eIPO Service Provider and the Receiving Bank will comply with the terms of their respective appointment, all applicable Laws (including, without limitation, the Guidelines for Electronic Public Offerings published by the purposes of or SFC) and any reasonable instructions from the Sponsor-OC in connection with the Transfer of Listing or such filings).
8.2 The Company undertakes to the Sole Sponsor that the Company shall:
(a) comply with the Main Board Listing Rules Global Offering, and the GEM Listing Rules in relation to any supplemental listing document to the Listing Document and further agrees, except for the Listing Documentation or except as otherwise provided pursuant to the provisions of this Agreement or as required by Applicable Laws or the Stock Exchange, not to issue, publish, distribute or make available directly or indirectly to the public any document (including any listing document, announcement, supplement, circular and press release), material or information in connection with the Transfer of Listing, or make any amendment to any of the Listing Documentation, or any amendment or supplement thereto at any time prior to the expiry of the period of six months from the Transfer Date (excluding, for the avoidance of doubt, any document, material or information which may be connected with the Transfer of Listing solely because it extracts, reproduces or contains references to the Transfer of Listing, the Listing Documentation or information contained therein) without the prior written consent of the Sole Sponsor (which consent shall not be unreasonably withheld or delayed); procure the Hong Kong Share Registrar to will do all such acts and things as may be required to be done by it each of them and by the time specified or necessary in connection with the Transfer of Listing Global Offering and the transactions contemplated herein thereunder, and in particular, but without limitation, as set out in the H Share Registrar Agreement and the Receiving Bank Agreement, respectively;
(iii) none of the terms of the appointments of the H Share Registrar, the White Form eIPO Service Provider and the Receiving Bank shall procure that such appointment shall not be amended or terminated before completion of the Transfer of Listing without the prior written consent of the Sole Sponsor;
-OC (b) use its reasonable endeavours to procure that the Company will maintain a listing for, for itself and will refrain from taking any action that could jeopardise the listing status of, the Shares on the Main Board of the Stock Exchange for not less than six months after the Transfer Date, except following a withdrawal of such listing which has been approved by the relevant shareholders of the Company in accordance with the Main Board Listing Rules or following an offer (within the meaning behalf of the Hong Kong Code on Takeovers and Mergers issued by the SFC) for the Company becoming unconditionalUnderwriters);
(civ) each of the Warrantors will, and in particular the Company will use its/his/ her best endeavours to cause the Group Companies, and any party acting on its behalf to, comply with the Companies Ordinance, the Companies (Winding Up and Miscellaneous Provisions) Ordinance and the Listing Rules (as relevant) and any requirements to publish information affecting the information contained in the Prospectus including supplemental listing documents and further agrees not to issue, publish, distribute or make available any announcement, circular or document as contemplated above without the prior written consent of the Overall Coordinators (for themselves and on behalf of the Hong Kong Underwriters) and the Sole Sponsor (such consent not to be unreasonably withheld or delayed);
(v) the Company shall itself will give every assistance, and will cooperate with and fully assist, and procure the members of the Group and the Warranting Parties, and their respective directors, officers, employees, affiliates, agents, advisors, reporting accountants, auditors, legal counsels and other relevant parties engaged by the Company in connection with the Global Offering to cooperate with and fully assist in a timely manner, each of the Sole Sponsor, the Sponsor-OC, the Overall Coordinators, the Joint Global Coordinators, the Joint Bookrunners, the Joint Lead Managers, the Hong Kong Underwriters and the Capital Market Intermediaries, to facilitate its performance of its duties, as the case may be, as a sponsor, a overall coordinator and/or a capital market intermediary and to meet its obligations and responsibilities (including its obligations and responsibilities to provide materials, information and documents to the Stock Exchange, the SFC, the CSRC and other regulators) under all applicable laws, regulations, rules and regulatory requirements (whether having the force of law or otherwise) from time to time in force, including, without limitation, the Code of Conduct, the Listing Rules and the CSRC Rules;
(vi) the Company will comply with (and the Company hereby confirms that it has duly complied with) all Applicable applicable Laws (including, without limitation and for the avoidance of doubt, the rules, regulations and requirements of the Stock Exchange Exchange, the SFC and any other Governmental Authority) including, without limitation:
(ia) complying with the Listing Rule requirement to document the rationale behind the Company’s decision on allocation and pricing, in particular where the decision is contrary to the advice, recommendation(s) and/or guidance of the Overall Coordinators (Ain the capacity of overall coordinators) in accordance with paragraph 19 of Appendix F1 to the Listing Rules;
(b) complying with and procuring the Directors to comply with their obligations to assist the syndicate members in accordance with Rule 3A.46 of the Listing Rules, including but not limited to keeping the syndicate members informed of any material changes to information provided under Rule 3A.46(1) of the Listing Rules as soon as it becomes known to the Company and the Directors;
(c) notifying the Stock Exchange and providing it with the updated information and reasons for any material changes to the information provided to the Stock Exchange under Rule 9.11 of the Listing Rules;
(d) keeping the Sole Sponsor and the Overall Coordinators (in the capacity of overall coordinators) informed of any material change to the information previously given to the CSRC, the Stock Exchange and the SFC, and to enable the Overall Coordinators to provide (or procuring their provision) to the CSRC, the Stock Exchange and/or the SFC, in a timely manner, such information as the CSRC, the Stock Exchange or the SFC may require;
(e) providing to or procuring for the Overall Coordinators (in the capacity of overall coordinators) all necessary consents to the provision of the information referred to in paragraph (vi) of this Clause to them; and complying, cooperating and assisting with record-keeping obligations of the Company, the Overall Coordinators (in the capacity of overall coordinators) and the CMIs under the Code of Conduct and the Listing Rules, including but not limited to, in the situation where the Company may decide to deviate from the advice or recommendations by the Overall Coordinators (in the capacity of overall coordinators); and
(f) the Company shall inform the Stock Exchange and the SFC of such change or matter in accordance with the Laws, or if so reasonably required by any of the Sole Sponsor, the Overall Coordinators and the Underwriters (including the Capital Market Intermediaries).
(vii) as soon as practicable and in any event before the commencement of dealings in the H Shares on the Stock Exchange’s rules or other requirements to publish and disseminate to the public, under certain circumstances, information affecting any financial information in the Listing Document, and (B) announce in an announcement any information so required by the Stock Exchange to be published and disseminated to the public in connection with the Transfer of Listing at any time prior to the expiry of the period of six months from the Transfer Date (in the case after the Transfer of Listing, excluding, for the avoidance of doubt, any document, material or information which may be connected with the Transfer of Listing solely because it extracts, reproduces or contains references to the Transfer of Listing, the Listing Documentation or information contained therein), provided, however, that no such announcement shall be issued by the Company without having been submitted to the Sole Sponsor for their review not less than two Business Days prior to such issuance, or such lesser period of time as is necessary for the Company to avoid violation of any Applicable Laws, and (c) comply with the applicable CSRC Rules and where applicable, make all necessary filings (including the CSRC Filings) and obtain all necessary Approvals required under the CSRC Filings;
(ii) deliver will submit to the Stock Exchange the declaration substantially in the form set out in Appendix 5, Form F of the Main Board Listing RulesRules acceptable to the Stock Exchange via FINI;
(iiiviii) providing none of the connected persons (as defined in the Listing Rules) of the Company and none of their respective associates will itself (or through a company controlled by it) will apply for or acquire any Offer Shares either in their own names or through nominees unless permitted to do so under the Listing Rules or a waiver from compliance with the Listing Rules duly granted from the Stock Exchange to that effect;
(ix) the Company will use all of the net proceeds received by it pursuant to the Global Offering in the manner specified in the section headed “Future Plans and Use of Proceeds” in the Prospectus and in case of any change the Company has to obtain prior consent from the Sole Sponsor (such consent shall not be unreasonably withheld or delayed) and such change to be in compliance with the requirements under the Listing Rules and/or the requirements of SEHK. The Company will not directly or indirectly use any such other resolutions, consents, authorities, documents, opinions and certificates which are relevant in the context of the Transfer proceeds from the Global Offering to fund any operations in, to finance any investments, projects or activities in, to make any payments to, any country, or to make any payments to, or finance any activities with, any person, targeted by any of Listing owing the economic sanctions promulgated by any Executive Order issued by the President of the United States or administered by the United States Treasury Department’s Office of Foreign Asset Control. The Company will maintain and implement adequate internal controls and procedures to circumstances arising or events occurring after monitor and audit transactions that are reasonably designed to detect and prevent any use of the proceeds from the Global Offering that is inconsistent with any of the Company’s representations and applicable obligations;
(x) except pursuant to the Global Offering (including pursuant to the exercise of the Over- allotment Option), during the period commencing on the date of this Agreement but before 8:00 a.m. on and ending on, and including, the Transfer date that is six months after the Listing Date and as (the “First Six-Month Period”), the Company will not without the prior written consent of the Sole Sponsor may reasonably require; andand the Overall Coordinators (for themselves and on behalf of the Hong Kong Underwriters)(such consent shall not be unreasonably withheld or delayed) and unless in compliance with the requirements of the Listing Rules:
(iva) complying allot, issue, sell, accept subscription for, offer to allot, issue or sell, contract or agree to allot, issue or sell, assign, mortgage, charge, pledge, hypothecate, lend, grant or sell any option, warrant, contract or right to subscribe for or purchase, grant or purchase any option, warrant, contract or right to allot, issue or sell, or otherwise transfer or dispose of or create an Encumbrance over, or agree to transfer or dispose of or create an Encumbrance over, either directly or indirectly, conditionally or unconditionally, any H Shares or other equity securities of the Company, as applicable, or any interest in any of the foregoing (including, without limitation, any equity securities convertible into or exchangeable or exercisable for or that represent the right to receive, or any other warrants or other rights to purchase, any H Shares or other equity securities of the Company), or deposit any H Shares or other equity securities of the Company with all a depositary in connection with the undertakings issue of depositary receipts; or
(b) enter into any swap or other arrangement that transfers to another, in whole or in part, any of the economic consequences of subscription or ownership (legal or beneficial) of any H Shares or other equity securities of the Company, or any interest in any of the foregoing (including, without limitation, any equity securities convertible into or exchangeable or exercisable for or that represent the right to receive, or any warrants or other rights to purchase, any H Shares or other equity securities of the Company); or
(c) enter into any transaction with the same economic effect as any transactions specified in Clause 6.1(x)(a) or 6.1(x)(b) above; or
(d) offer to or agree to or announce, or publicly disclose, any intention to effect any transaction specified in Clause 6.1(x)(a), 6.1(x)(b) or 6.1(x)(c) above, in each case, whether any of the transactions specified in Clause 6.1(x)(a), 6.1(x)(b) or 6.1(viii)(c) above is to be settled by delivery of H Shares or other equity securities of the Company, or in cash or otherwise (whether or not the issue of such H Shares or other shares or equity securities will be completed within the First Six-Month Period);
(xi) the Company will not, and commitments made by it will procure each other Group Company not to, enter into any of the transactions specified in Clause 6.1(x)(a), 6.1(x)(b) or 6.1(x)(c) above or offer to or agree to or announce any intention to effect any such transaction, such that the Controlling Shareholder would cease to be a “controlling shareholder” (as defined in the Listing Document and Rules) of the Company during the period of six months immediately following the expiry of the First Six-Month Period (the “Second Six-Month Period”). In the event that, during the Second Six-Month Period, the Company enters into any of the transactions specified in Clause 6.1(x)(a), 6.1(x)(b) or 6.1(x)(c) above or offers to or agrees to or announces, or publicly discloses, any intention to effect any such transaction, the Company shall take all reasonable steps to ensure that it will not create a disorderly or false market in any H Shares or other securities of the Company in a manner that violates the Listing Rules and/or the SFO;
(xii) during the 12 months following the Listing Date, the Company will use its best endeavours to procure maintain the Directors to comply with all listing of the undertakings and commitments by H Shares on the Directors in the Listing DocumentStock Exchange;
(dxiii) without prejudice to Clauses 3.4.6(ii), 3.6.2 and 3.6.3, the Company will pay any tax, duty, levy, fee or other charge or expense (if any) which may be payable by the Company in Hong Kong or elsewhere, whether pursuant to the requirement of any Laws or otherwise, in connection with the creation, allotment, issue, sale or transfer of the Offer Shares, the Global Offering, or the execution and delivery of, or the performance of any of the provisions under, this Agreement;
(xiv) the Company shall not, not at any time after the date of this Agreement up to and including the Transfer Datedate on which all the Conditions are fulfilled or waived, amend or agree to amend the Articles of Association (save as requested for allowing the Articles of Association that have been conditionally adopted by the Stock Exchange Company to become effective upon Listing, as described in the Prospectus) or enter into or procure any Group Company not to comply with the requirements under the Main Board Listing Rules, the GEM Listing Rules or Applicable Laws;
(e) shall not, and procure that no other member of the Group will:
(i) at any time after the date of this Agreement up to the Transfer Date, do or omit to do anything which causes or can reasonably be expected to cause any of the Warranties to be untrue, inaccurate or misleading at any time prior to or on the Transfer Date;
(ii) enter into any commitment or arrangement which has could materially and adversely affect the Global Offering or will which is outside the ordinary course of business of any member of the Group or may have a material adverse effect on the Transfer of Listing; and
(iii) take any steps which, in the reasonable opinion of the Sole Sponsor, are or will or may would be materially inconsistent with any statement expression of policy or expression, whether of fact, policy, expectation or intention, intention in the Listing DocumentProspectus or make any material amendment to any of the service contracts of the Directors or waive or release a Director from any provision of his service contract and the Company shall do all such acts and things to enforce or preserve the rights of the Company under the service contracts;
(fxv) ensure that at any issues identified and as disclosed in time within the Internal Control Report have beenperiod during which the Over-allotment Option may be exercised, are being or will promptly be rectified or improved to a sufficient standard or level for the operation and maintenance of efficient systems of internal accounting and financial reporting controls and disclosure and corporate governance controls and procedures that are effective to perform the functions for which they were established and to allow compliance by the Company and the Board with all Applicable Laws in all material respectsshall not declare or make any payment of dividends, andmake any other distribution of profits whatsoever, without prejudice any return of value or any issue of bonus Shares to the generality its shareholders or offer or agree to do any of the foregoing, foregoing or announce any intention to such standard or level recommended or suggested by the Internal Control Consultant in the Internal Control Reportdo so;
(gxvi) provide all such information known to it relating to the Group or itself or otherwise as may be reasonably required by the Sole Sponsor in connection with the Transfer of Listing for the purposes of complying with any requirements of Applicable Laws (including, without limitation and for the avoidance of doubt, the applicable CSRS Rules, the requirements of the Stock Exchange or of the SFC or of any other relevant Governmental Authority);
(h) promptly provide full particulars thereof to the Sole Sponsor if, at any time up to or on the date falling 12 months 30 days after the Transfer Listing Date, there is a significant material change which affects or is capable of affecting any information contained in the Listing Document Offer Documents or a significant new matter arises, the inclusion of information in respect of which would have been required in any of the Listing Document Offer Documents had it arisen before any of them was issued, and, in connection therewith, furtherthen the Company shall:
(ia) promptly provide particulars thereof to the Sole Sponsor and the Overall Coordinators;
(b) if so reasonably required by the Sole Sponsor and/or the Overall Coordinators, inform the Stock Exchange of such change or matter if so required by the Sole Sponsor;
(ii) at its expense, promptly prepare documentation containing details of such change or matter if so required by the Stock Exchange or the Sole Sponsor and in a form approved by the Sole Sponsor, deliver such documentation through the Sole Sponsor to the Stock Exchange for approval and publish such documentation in such manner as the Stock Exchange or the Sole Sponsor may require;
(iii) at its expense, make all necessary announcements to the Stock Exchange to avoid a false market being created in the Shares; and
(iv) not issue, publish, distribute or make available publicly any announcement, circular, document or other communication relating to any such change or matter without the prior written consent of the Sole Sponsor, and for the purposes of this Clause 8.2, significant means significant for the purpose of making an informed assessment of the matters mentioned in Rule 11.07 of the Main Board Listing Rules;
(i) comply with the all Applicable Laws (including, without limitation, the CSRC Archive Rules) in connection with (A) the establishment and maintenance of adequate and effective internal control measures and internal systems for maintenance of data protection, confidentiality and archive administration; (B) the relevant requirements and approval and filing procedures in connection with its handling, disclosure, transfer and retention of transfer of state secrets and working secrets of government agencies or any other documents or materials that would otherwise be detrimental to national securities or public interest (the Relevant Information); and (C) maintenance of confidentiality of any Relevant Information;
(j) where there is any material information that shall be reported to the CSRC pursuant to the Applicable Laws (including, without limitation, the applicable CSRC Rules), promptly notifying the CSRC or the relevant PRC Governmental Authority and providing it with such material information in accordance with to the applicable Laws, and promptly notifying the Sole Sponsor of such material information to the extent permitted by the applicable Laws; and
(k) without prejudice to the foregoing obligations, do all such other acts and things as may be reasonably required to be done by it to carry into effect the Transfer of Listing.
8.3 The undertakings in this Clause 8 shall remain in full force and effect notwithstanding the completion of the Transfer of Listing and the matters and arrangements referred to or contemplated in this Agreement.t
Appears in 1 contract
Samples: Hong Kong Underwriting Agreement
Further Undertakings. 8.1 The Company undertakes with the Sole Sponsor that it shall do all such acts and things and execute all documents as may be required under the Applicable Laws or by the Stock Exchange in connection with the Main Board Listing Application (including, in the case of the Company, effecting all necessary filings with the Stock Exchange and ensuring that each of the Directors shall sign or cause to be duly signed on their behalf all documents required to be signed by them as Directors for the purposes of or in connection with the Transfer of Listing or such filings).
8.2 The Company undertakes to each of the Sole Sponsor that Sponsor, the Sole Overall Coordinator, the Sole Global Coordinator, the Joint Bookrunners, the Joint Lead Managers, the CMIs and the other Hong Kong Underwriters that, and each of the other Warrantors undertakes to use its reasonable endeavours to procure that: the Company shallwill comply in all material respects with the terms and conditions of the Hong Kong Public Offering and, in particular, without limitation:
(a) to comply with all applicable Laws in effect from time to time, in particular, to comply with the Main Board Listing Rules obligations imposed upon it by the Companies Ordinance, the Companies (Winding Up and Miscellaneous Provisions) Ordinance and the GEM Listing Rules in relation respect of or by reason of the making of the Global Offering including, but without limitation, the making of all necessary filings and doing all such things (including but not limited to any supplemental listing document providing all such information and paying all such fees) as are necessary to obtain all necessary Approvals with the Listing Document and further agreesRegistrar of Companies in Hong Kong, except for the Listing Documentation or except as otherwise provided pursuant to the provisions of this Agreement or as required by Applicable Laws or the Stock Exchange, not the SFC and CSRC and any other relevant Governmental Authority and the making available of documents on display in the manner referred to issue, publish, distribute or make available directly or indirectly in Appendix V to the public Prospectus “Documents Delivered to the Registrar of Companies and Available on Display” during the period specified in that paragraph;
(b) to comply in all material aspects with the terms and conditions of the Global Offering and, in particular, to allot and issue the Hong Kong Offer Shares to successful applicants under the Hong Kong Public Offering and, if any document of the Hong Kong Offer Shares falls to be taken up pursuant to Clauses 3.4.6 and 3.4.7, to the applicants under Clause 3.4.6(i) or, as the case may be, as the Sole Overall Coordinator directs; and
(including c) pursuant to Clause 3.3.3 in this Agreement, cause definitive share certificates representing the Hong Kong Offer Shares to be posted or made available for collection in accordance with the terms of the Hong Kong Public Offering to successful applicants or, as the case may be, procure that the share certificates for Hong Kong Offer Shares in respect of which successful applicants have elected for delivery into CCASS shall be duly delivered to the depositary for HKSCC for credit to the stock account of such CCASS participant(s) as may be specified for such purpose by or on behalf of the relevant applicant; the Company will use its reasonable endeavours to procure that the Registrar, the HK eIPO White Form Service Provider and the Receiving Banks will comply with the terms of their respective appointment, all applicable Laws (including, without limitation, the Guidelines for Electronic Public Offerings published by the SFC) and any listing document, announcement, supplement, circular and press release), material or information reasonable instructions from the Sole Overall Coordinator in connection with the Transfer of ListingGlobal Offering, or make any amendment to any of the Listing Documentation, or any amendment or supplement thereto at any time prior to the expiry of the period of six months from the Transfer Date (excluding, for the avoidance of doubt, any document, material or information which may be connected with the Transfer of Listing solely because it extracts, reproduces or contains references to the Transfer of Listing, the Listing Documentation or information contained therein) without the prior written consent of the Sole Sponsor (which consent shall not be unreasonably withheld or delayed); procure the Hong Kong Share Registrar to and will do all such acts and things as may be required to be done by it each of them and by the time specified or necessary in connection with the Transfer of Listing Global Offering and the transactions contemplated herein thereunder, and in particular, but without limitation, as set out in the Registrar Agreement, any agreement between the Company and the HK eIPO White Form Service Provider and the Receiving Banks Agreement, respectively; none of the terms of the appointments of the Registrar, the HK eIPO White Form Service Provider and the Receiving Banks shall procure that such appointment shall not be amended or terminated before completion of the Transfer of Listing without the prior written consent of the Sole Overall Coordinator (for itself and on behalf of the other Hong Kong Underwriters) which consent shall not be unreasonably withheld or delayed; the Company will comply with the Companies Ordinance, the Companies (Winding Up and Miscellaneous Provisions) Ordinance and the Listing Rules (as relevant) in relation to supplemental listing documents, if any, and further agrees not to issue, publish, distribute or make available any announcement, circular or document in connection with the Global Offering without the prior written consent of the Sole Overall Coordinator (for itself and on behalf of the other Hong Kong Underwriters) and the Sole Sponsor;
; as soon as practicable and in any event before the commencement of dealings in the Shares on the Stock Exchange, the Company will submit to the Stock Exchange the declaration substantially in the form set out in Form F in Regulatory Forms of the Listing Rules acceptable to the Stock Exchange via FINI; using its reasonable endeavours to procure that none of the core connected persons (bas defined in the Listing Rules) of the Company will apply for or acquire any Offer Shares either in their own names or through nominees unless permitted to do so under the Listing Rules and obtain confirmation from the Stock Exchange to that effect; the Company will use all of the net proceeds received by it pursuant to the Global Offering in the manner specified in the section headed “Future Plans and Use of Proceeds - Use of Proceeds” in the Prospectus and in the case of any change in the use of the net proceeds, the Company shall comply with the relevant requirements under the Listing Rules, the Articles of Association and any applicable Laws. The Company will not directly or indirectly use any of the proceeds from the Global Offering to fund any operations in, to finance any investments, projects or activities in, to make any payments to, any country, or to make any payments to, or finance any activities or business of or with any person or entity, or of, with or in any territory, that is subject to any sanctions Laws and regulations, or in any other manner that will result in a violation by any individual or entity (including, without limitation, by the Sole Sponsor, the Sole Overall Coordinator and the Underwriters) of any sanctions Laws and regulations. The Company will maintain and implement adequate internal controls and procedures to monitor and audit transactions that are reasonably designed to detect and prevent any use of the proceeds from the Global Offering that is inconsistent with any of the Company’s representations and applicable obligations; except pursuant to the Global Offering (including pursuant to the Over-allotment Option), during the period commencing on the date of this Agreement and ending on, and including, the date that is six months after the Listing Date (the “First Six-Month Period”), the Company will not without the prior written consent of the Sole Sponsor and the Sole Overall Coordinator (for itself and on behalf of the other Hong Kong Underwriters) and unless in compliance with the requirements of the Listing Rules: allot, issue, sell, accept subscription for, offer to allot, issue or sell, contract or agree to allot, issue or sell, mortgage, charge, pledge, hypothecate, lend, grant or sell any option, warrant, contract or right to subscribe for or purchase, grant or purchase any option, warrant, contract or right to allot, issue or sell, or otherwise transfer or dispose of or create an Encumbrance over, or agree to transfer or dispose of or create an Encumbrance over, either directly or indirectly, conditionally or unconditionally, any Shares or other securities of the Company, as applicable, or any interest in any of the foregoing (including, without limitation, any securities convertible into or exchangeable or exercisable for or that represent the right to receive, or any other warrants or other rights to purchase, any Shares or any shares of such other Group Company, as applicable), or deposit any Shares or other securities of the Company, as applicable, with a depositary in connection with the issue of depositary receipts; or repurchase any Shares or other securities of the Company, as applicable, or 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 Shares or other securities of the Company, as applicable, or any interest in any of the foregoing (including, without limitation, any securities convertible into or exchangeable or exercisable for or that represent the right to receive, or any warrants or other rights to purchase, any Shares or other securities of the Company, as applicable); or enter into any transaction with the same economic effect as any transactions specified in Clause 6.1(viii)(a) or 6.1(viii)(b) above; or offer to or agree to or announce any intention to effect any transaction specified in Clause 6.1(viii)(a), 6.1(viii)(b) or 6.1(viii)(c) above, in each case, whether any of the transactions specified in Clause 6.1(viii)(a), 6.1(viii)(b), 6.1(viii)(c) or 6.1(viii)(d) above is to be settled by delivery of Shares or other securities of the Company, as applicable, or in cash or otherwise (whether or not the issue of such Shares or other shares or securities will be completed within the First Six-Month Period); the Company will not enter into any of the transactions specified in Clause 6.1(viii)(a), 6.1(viii)(b) or 6.1(viii)(c) above or offer to or agree to or announce any intention to effect any such transaction, such that any of the Controlling Shareholders would cease to be a “controlling shareholder” (as defined in the Listing Rules) of the Company during the period of six months immediately following the expiry of the First Six-Month Period (the “Second Six-Month Period”); in the event that, during the Second Six-Month Period, the Company enters into any of the transactions specified in Clause 6.1(viii)(a), 6.1(viii)(b) or 6.1(viii)(c) above or offers to or agrees to or announces any intention to effect any such transaction, the Company shall take all reasonable steps to ensure that it will not create a disorderly or false market in any Shares or other securities of the Company; the Company will use its reasonable endeavours to procure that the Company it will maintain a listing for, for and will refrain from taking any action that could jeopardise the listing status of, the Shares on the Main Board of the Stock Exchange for not less than six months after one year from the Transfer Listing Date, except following a withdrawal of such listing which has been approved by the relevant shareholders of the Company in accordance with the Main Board Listing Rules or following an offer (within the meaning of the Hong Kong Code Codes on Takeovers and Mergers issued by the SFCand Share Buy-backs) for the Company becoming unconditional;
(c) ; without prejudice to Clauses 3.4.6(ii), 3.6.2 and 3.6.3, the Company shall comply with all Applicable Laws (includingwill pay any tax, without limitation and for the avoidance of doubtduty, the ruleslevy, regulations and requirements of the Stock Exchange and any other Governmental Authority) including, without limitation:
(i) (A) comply with the Stock Exchange’s rules fee or other requirements to publish and disseminate charge or expense (if any) which may be payable in Hong Kong or elsewhere, whether pursuant to the publicrequirement of any Laws or otherwise, under certain circumstances, information affecting any financial information in the Listing Document, and (B) announce in an announcement any information so required by the Stock Exchange to be published and disseminated to the public in connection with the Transfer of Listing at any time prior to the expiry creation, allotment, issue, sale or transfer of the period of six months from the Transfer Date (in the case after the Transfer of Listing, excluding, for the avoidance of doubt, any document, material or information which may be connected with the Transfer of Listing solely because it extracts, reproduces or contains references to the Transfer of ListingOffer Shares, the Listing Documentation Global Offering, or information contained therein)the execution and delivery of, providedor the performance of any of the provisions under, however, that no such announcement shall be issued by this Agreement; the Company without having been submitted to the Sole Sponsor for their review shall not less than two Business Days prior to such issuance, or such lesser period of time as is necessary for the Company to avoid violation of any Applicable Laws, and (c) comply with the applicable CSRC Rules and where applicable, make all necessary filings (including the CSRC Filings) and obtain all necessary Approvals required under the CSRC Filings;
(ii) deliver to the Stock Exchange the declaration substantially in the form set out in Appendix 5, Form F of the Main Board Listing Rules;
(iii) providing to the Sole Sponsor any such other resolutions, consents, authorities, documents, opinions and certificates which are relevant in the context of the Transfer of Listing owing to circumstances arising or events occurring after the date of this Agreement but before 8:00 a.m. on the Transfer Date and as the Sole Sponsor may reasonably require; and
(iv) complying with all the undertakings and commitments made by it in the Listing Document and shall use its best endeavours to procure the Directors to comply with all the undertakings and commitments by the Directors in the Listing Document;
(d) shall not, at any time after the date of this Agreement up to the Transfer Date, amend or agree to amend the Articles of Association save as requested by the Stock Exchange or to comply with the requirements under the Main Board Listing Rules, the GEM Listing Rules or Applicable Laws;
(e) shall not, and procure that no other member of the Group will:
(i) at any time after including the date of this Agreement up to on which all the Transfer DateConditions are fulfilled or waived, do or omit to do anything which causes or can reasonably be expected to cause any of the Warranties to be untrue, inaccurate or misleading at any time prior to or on the Transfer Date;
(ii) enter into any commitment or arrangement which has or will or may have a material adverse effect on the Transfer of Listing; and
(iii) take any steps which, in the reasonable opinion of the Sole Sponsor, are or will or may would be materially inconsistent with any expression of policy or intention in the Prospectus or make any material amendment to any of the service contracts or appointment letters of the executive and non-executive Directors (as the case may be) or waive or release an executive or non-executive Director from any provision of his/her service contract and the Company shall do all such acts and things to enforce or preserve the rights of the Company under the service contracts; at any time within the period during which the Over-allotment Option may be exercised, the Company shall not declare or make any payment of dividends, make any other distribution of profits whatsoever, any return of value or any issue of bonus Shares to its shareholders or offer or agree to do any of the foregoing or announce any intention to do so; if at any time prior to the completion of the issue of the Offer Shares by the Company, any event occurs as a result of which any of the Offer Documents, as then amended or supplemented, would include any untrue statement of a material fact or expression, whether of fact, policy, expectation or intentionomit to state any material fact necessary to make the statements therein, in the Listing Document;
(f) ensure that any issues identified and as disclosed in light of the Internal Control Report have been, are being or will promptly be rectified or improved to a sufficient standard or level for the operation and maintenance of efficient systems of internal accounting and financial reporting controls and disclosure and corporate governance controls and procedures that are effective to perform the functions for circumstances under which they were established and made, not misleading, or if it should be necessary to allow compliance by amend or supplement the Offer Documents to comply with applicable Laws, the Company and the Board with all Applicable Laws in all material respects, and, without prejudice to the generality of the foregoing, to such standard or level recommended or suggested by the Internal Control Consultant in the Internal Control Report;
(g) provide all such information known to it relating to the Group or itself or otherwise Warrantors will as may be reasonably required by soon as practicable notify the Sole Sponsor in connection with the Transfer of Listing for the purposes of complying with any requirements of Applicable Laws (including, without limitation and for the avoidance of doubt, the applicable CSRS Rules, the requirements of the Stock Exchange or of the SFC or of any other relevant Governmental Authority);
(h) promptly will prepare and provide full particulars thereof to the Sole Sponsor an amendment or supplement which will correct such statement or omission and effect such compliance and will not distribute any such amendment or supplement which the Sole Sponsor objects; if, at any time up to or on the date falling 12 months 30 days after the Transfer Listing Date, there is a significant change which affects or is capable of affecting any information contained in the Listing Document Prospectus or a significant new matter arises, the inclusion of information in respect of which would have been required in any of the Listing Document Prospectus had it arisen before any of them was issued, and, in connection therewith, furtherthen the Company shall:
(ia) as soon as practicable provide full particulars thereof to the Sole Sponsor and the Sole Overall Coordinator as so reasonably required thereby;
(b) if so reasonably required by the Sole Sponsor, inform the Stock Exchange of such change or matter if so required by the Sole Sponsormatter;
(iic) at its expense, promptly prepare documentation containing details of such change or matter (if so required by the Stock Exchange Exchange, or if so reasonably required by the Sole Sponsor or the Sole Sponsor Overall Coordinator) as soon as practicable prepare and in a form approved by (through the Sole Sponsor, ) deliver such documentation through the Sole Sponsor to the Stock Exchange for approval documentation containing details thereof in a form agreed by the Sole Sponsor and publish such documentation in such manner as the Stock Exchange or Exchange, the Sole Sponsor and the Sole Overall Coordinator may require;; and
(iiid) at its expense, make all any necessary announcements to through the Stock Exchange and the press to avoid a false market being created in the Offer Shares; and
(iv) . The Company undertakes not to issue, publish, distribute or make available publicly any announcement, circular, document or other communication relating to any such change or matter aforesaid without the prior written consent of the Sole Sponsor, Sponsor and for the purposes of this Clause 8.2, significant means significant for the purpose of making an informed assessment of the matters mentioned in Rule 11.07 of the Main Board Listing Rules;
(i) comply with the all Applicable Laws (including, without limitation, the CSRC Archive Rules) in connection with (A) the establishment and maintenance of adequate and effective internal control measures and internal systems for maintenance of data protection, confidentiality and archive administration; (B) the relevant requirements and approval and filing procedures in connection with its handling, disclosure, transfer and retention of transfer of state secrets and working secrets of government agencies or any other documents or materials that would otherwise be detrimental to national securities or public interest (the Relevant Information); and (C) maintenance of confidentiality of any Relevant Information;
(j) where there is any material information that shall be reported to the CSRC pursuant to the Applicable Laws (including, without limitation, the applicable CSRC Rules), promptly notifying the CSRC or the relevant PRC Governmental Authority and providing it with such material information in accordance with to the applicable Laws, and promptly notifying the Sole Sponsor of Overall Coordinator (such material information to the extent permitted by the applicable Laws; and
(k) without prejudice to the foregoing obligations, do all such other acts and things as may be reasonably required consent not to be done by it to carry into effect the Transfer of Listingunreasonably withheld).
8.3 The undertakings in this Clause 8 shall remain in full force and effect notwithstanding the completion of the Transfer of Listing and the matters and arrangements referred to or contemplated in this Agreement.
Appears in 1 contract
Samples: Hong Kong Underwriting Agreement
Further Undertakings. 8.1 6.1 The Company undertakes to each of the Joint Bookrunners, the Sole Sponsor, the Joint Lead Managers, the Co-Manager and the Placing Underwriters that, and each of the other Warrantors irrevocably undertakes to procure that:
(a) to comply with all applicable Laws issued from time to time, in particular, to comply with the Sole Sponsor that obligations imposed upon it shall do all such acts by the Companies Ordinance and things and execute all documents as may be required under the Applicable Laws Listing Rules in respect of or by reason of the Stock Exchange in connection with making of the Main Board Listing Application (Share Offer including, in but without limitation, the case making of the Company, effecting all necessary filings with the Registrar of Companies in Hong Kong, the Registrar of Companies in the Cayman Islands and the Stock Exchange and ensuring that each the making available for inspection in Hong Kong of the Directors shall sign or cause documents and in the manner referred to be duly signed on their behalf in the sub-section headed “Documents available for inspection” of Appendix V to the Prospectus during the period specified therein; and
(b) to comply in all documents required to be signed by them as Directors for the purposes of or in connection aspects with the Transfer terms and conditions of Listing or such filings).
8.2 The Company undertakes the Share Offer and, subject to the Sole Sponsor fulfilment or waiver of the Conditions, in particular, to allot and issue the Placing Shares to Placees under the Placing ; the Company will use its reasonable endeavours to procure that the Company shall:
Registrar and the Receiving Bank (aas defined in the Public Offer Underwriting Agreement) will comply with the Main Board Listing Rules terms of their respective appointment and the GEM Listing Rules in relation to any supplemental listing document to the Listing Document and further agrees, except for the Listing Documentation or except as otherwise provided pursuant to the provisions of this Agreement or as required by Applicable Laws or the Stock Exchange, not to issue, publish, distribute or make available directly or indirectly to the public any document (including any listing document, announcement, supplement, circular and press release), material or information in connection with the Transfer of Listing, or make any amendment to any of the Listing Documentation, or any amendment or supplement thereto at any time prior to the expiry of the period of six months from the Transfer Date (excluding, for the avoidance of doubt, any document, material or information which may be connected with the Transfer of Listing solely because it extracts, reproduces or contains references to the Transfer of Listing, the Listing Documentation or information contained therein) without the prior written consent of the Sole Sponsor (which consent shall not be unreasonably withheld or delayed); procure the Hong Kong Share Registrar to will do all such acts and things as may be required to be done by it each of them and by the time specified or necessary in connection with the Transfer of Listing Share Offer and in particular, but without limitation, as set out in the Registrar Agreement and the transactions contemplated herein Receiving Bank Agreement (as defined in the Public Offer Underwriting Agreement), respectively. Prior to the Listing Date, none of the terms of the appointments of the Registrar and the Receiving Bank shall procure that such appointment shall not be amended or terminated before completion of the Transfer of Listing without the prior written consent of the Sole Sponsor;
Joint Bookrunners (bfor themselves and on behalf of the Co- Manager and the Placing Underwriters) use its reasonable endeavours to procure that which consent shall not be unreasonably withheld or delayed; (in the case of the Company) the Company, and (in the case of other Warrantors) each of the Company will maintain a listing forand the Controlling Shareholders, will, and will refrain from taking cause its Affiliates and subsidiaries and any action that could jeopardise party acting on its behalf to, comply with the Listing Rules and any requirements to publish information affecting the information contained in the Prospectus including but not limited to supplemental listing status ofdocuments and further agrees not to issue, publish, distribute or make available any announcement, circular or document as contemplated above prior to the date of listing of the Shares on the Main Board Stock Exchange without the prior written consent of the Stock Exchange for Joint Bookrunners which consent shall not less than six months after the Transfer Datebe unreasonably withheld or delayed; as soon as practicable, except following a withdrawal of such listing which has been approved by the relevant shareholders of the Company in accordance with the Main Board Listing Rules or following an offer (within the meaning of the Hong Kong Code on Takeovers and Mergers issued by the SFC) for the Company becoming unconditional;
(c) the Company shall comply with all Applicable Laws (including, without limitation and for the avoidance of doubt, the rules, regulations and requirements of the Stock Exchange and any other Governmental Authority) including, without limitation:
(i) (A) comply with the Stock Exchange’s rules or other requirements to publish and disseminate to the public, under certain circumstances, information affecting any financial information in the Listing Document, and (B) announce in an announcement any information so required by the Stock Exchange to be published and disseminated to the public in connection with the Transfer of Listing at any time prior to the expiry of the period of six months from the Transfer Date (in the case after the Transfer of Listing, excluding, for the avoidance of doubt, any document, material or information which may be connected with the Transfer of Listing solely because it extracts, reproduces or contains references to the Transfer of Listing, the Listing Documentation or information contained therein), provided, however, that no such announcement shall be issued by the Company without having been submitted to the Sole Sponsor for their review not less than two Business Days prior to such issuance, or such lesser period of time as is necessary for the Company to avoid violation of any Applicable Laws, and (c) comply with the applicable CSRC Rules and where applicable, make all necessary filings (including the CSRC Filings) and obtain all necessary Approvals required under the CSRC Filings;
(ii) will deliver to the Stock Exchange the declaration substantially in the form set out in Appendix 5, Form F of the Main Board Listing Rules;
(iii) providing Rules acceptable to the Sole Sponsor any such other resolutions, consents, authorities, documents, opinions and certificates which are relevant in Stock Exchange; the context Company will procure that none of the Transfer of Listing owing to circumstances arising or events occurring after the date of this Agreement but before 8:00 a.m. on the Transfer Date and core connected persons (as the Sole Sponsor may reasonably require; and
(iv) complying with all the undertakings and commitments made by it defined in the Listing Document Rules) of the Company will apply for or acquire any Offer Shares either in their own names or through nominees unless permitted to do so under the Listing Rules and shall obtain confirmation from the Stock Exchange to that effect; the Company will comply with the requirements of the Listing Rules regarding the use of the net proceeds received by it pursuant to the Share Offer in the manner specified in the Offer Documents in the section headed “Future plans and use of proceeds”. The Company will maintain and implement adequate internal controls and procedures to monitor and audit transactions that are reasonably designed to detect and prevent any use of the proceeds from the Share Offer that is inconsistent with any of the Company’s representations and obligations under the preceding sentence; except pursuant to the Share Offer, the Capitalisation Issue, the grant of options under the Share Option Scheme and the issue of Shares on exercise thereof or as otherwise permitted under the Listing Rules, it will not and it, the Controlling Shareholders and each of the Company’s executive Directors will procure that its Subsidiaries will not, unless with the prior written consent of the Joint Bookrunners (for and on behalf of the Co-Manager and the Placing Underwriters) (such consent not to be unreasonably withheld or delayed) in compliance with the requirements of the Listing Rules, allot or issue, or agree to allot or issue, Shares or other securities of the Company (including warrants or other convertible or exchangeable securities) or grant or agree to grant any options, warrants, or other rights to subscribe for or convertible or exchangeable into Shares or other securities of the Company or repurchase Shares or other securities of the Company or enter into any swap or other arrangement that transfers, in whole or in part, any of the economic consequence of ownership of any Shares or offer to or agree to do any of the foregoing or announce any intention to do so during the six months immediately following the Listing Date and in the event of the Company doing any of the foregoing by virtue of the aforesaid exceptions or during the period of six months immediately following the expiry of the first six months period after the Listing Date, it will take all reasonable steps to ensure that any such act will not create a disorderly or false market for any Shares or other securities of the Company; the Company will use its best endeavours efforts to procure maintain the Directors listing of the Shares on the Stock Exchange for a period of at least one year following the Listing Date; without prejudice to comply with all Clauses 3.6.2, the undertakings Company shall forthwith pay (and commitments fully indemnify each of the Placing Underwriters) any tax, duty, levy, fee or other charge or expense (if any) which may be payable by the Directors Company in the Listing Document;
Cayman Islands and Hong Kong or elsewhere, whether pursuant to the requirement of any Laws, or otherwise, in connection with (da) the creation, allotment, issue, sale or transfer of the Offer Shares by the Company to the Placing Underwriters and the subsequent purchasers/subscribers as part of the initial distribution of the Placing Shares by the Placing Underwriters in the manner contemplated in this Agreement and the Offer Documents (except to the extent such amounts have been collected from or paid by the subsequent purchasers); (b) the Share Offer, and (c) the execution and delivery of, and the performance of any of the provisions under, this Agreement; the Company shall not, not at any time after the date of this Agreement up to and including the Transfer Datedate on which all the Conditions are fulfilled or waived, amend or agree to amend the Articles of Association save as requested by the Stock Exchange or enter into or allow any Group Company to comply with the requirements under the Main Board Listing Rules, the GEM Listing Rules or Applicable Laws;
(e) shall not, and procure that no other member of the Group will:
(i) at any time after the date of this Agreement up to the Transfer Date, do or omit to do anything which causes or can reasonably be expected to cause any of the Warranties to be untrue, inaccurate or misleading at any time prior to or on the Transfer Date;
(ii) enter into any commitment or arrangement which has could materially and adversely affect the Share Offer or will which is outside the ordinary course of business of any Group or may have a material adverse effect on the Transfer of Listing; and
(iii) take any steps which, in the reasonable opinion of the Sole SponsorJoint Bookrunners, are or will or may would be materially inconsistent with any expression of policy or intention in the Offer Documents or make any material amendment to any of the service contracts of the Directors or waive or release a Director from any provision of his or her service contract and the Company shall do all such acts and things to enforce or preserve the rights of the Company under the service contracts; if at any time prior to the completion of the issue of the Offer Shares by the Company, any event occurs as a result of which any of the Offer Documents, as then amended or supplemented, would include any untrue statement of a material fact or expression, whether of fact, policy, expectation or intentionomit to state any material fact necessary to make the statements therein, in the Listing Document;
(f) ensure that any issues identified and as disclosed in light of the Internal Control Report have been, are being or will promptly be rectified or improved to a sufficient standard or level for the operation and maintenance of efficient systems of internal accounting and financial reporting controls and disclosure and corporate governance controls and procedures that are effective to perform the functions for circumstances under which they were established and made, not misleading, or if it should be necessary to allow compliance by amend or supplement the Offer Documents to comply with applicable Laws, the Company and the Board with all Applicable Laws in all material respects, and, without prejudice to the generality of the foregoing, to such standard or level recommended or suggested by the Internal Control Consultant in the Internal Control Report;
(g) provide all such information known to it relating to the Group or itself or otherwise as may be reasonably required by other Warrantors will promptly notify the Sole Sponsor in connection with the Transfer of Listing for the purposes of complying with any requirements of Applicable Laws (including, without limitation writing and for the avoidance of doubt, the applicable CSRS Rules, the requirements of the Stock Exchange or of the SFC or of any other relevant Governmental Authority);
(h) promptly will prepare and provide full particulars thereof to the Sole Sponsor an amendment or supplement which will correct such statement or omission and effect such compliance and will not distribute any such amendment or supplement which the Sole Sponsor objects; if, at any time up to or on the date falling 12 months 30 days after the Transfer Listing Date, there is a significant change which affects or is capable of affecting any information contained in the Listing Document Offer Documents or a significant new matter arises, the inclusion of information in respect of which would have been required in any of the Listing Document Offer Documents had it arisen before any of them was issued, and, in connection therewith, furtherthen the Company shall:
(ia) promptly provide full particulars thereof to the Joint Bookrunners;
(b) if so required by the Joint Bookrunners, inform the Stock Exchange of such change or matter if so required by the Sole Sponsormatter;
(iic) at its expense, promptly prepare documentation containing details of such change or matter (if so required by the Stock Exchange or the Sole Sponsor Joint Bookrunners) promptly prepare and in a form approved by the Sole Sponsor, deliver such documentation (through the Sole Sponsor Joint Bookrunners) deliver to the Stock Exchange for approval documentation containing details thereof in a form agreed by the Joint Bookrunners and publish such documentation in such manner as the Stock Exchange or the Sole Sponsor Joint Bookrunners may require;; and
(iiid) at its expense, make all any necessary announcements to through the website of the Stock Exchange and in the press to avoid a false market being created in the Offer Shares; and
(iv) . The Company undertakes not to issue, publish, distribute or make available publicly any announcement, circular, document or other communication relating to any such change or matter aforesaid without the prior written consent of the Sole Sponsor, and for the purposes of this Clause 8.2, significant means significant for the purpose of making an informed assessment of the matters mentioned in Rule 11.07 of the Main Board Listing Rules;
Joint Bookrunners (i) comply with the all Applicable Laws (including, without limitation, the CSRC Archive Rules) in connection with (A) the establishment and maintenance of adequate and effective internal control measures and internal systems for maintenance of data protection, confidentiality and archive administration; (B) the relevant requirements and approval and filing procedures in connection with its handling, disclosure, transfer and retention of transfer of state secrets and working secrets of government agencies such consent not to be unreasonably withheld or any other documents or materials that would otherwise be detrimental to national securities or public interest (the Relevant Informationdelayed); and (C) maintenance the Company will not, and will not permit any of confidentiality its Affiliates to, resell within 40 days after the later of the close of the Share Offer, any Relevant Information;
(j) where there is Shares that have been acquired by any material information that shall be reported to the CSRC of them pursuant to the Applicable Laws (including, without limitation, the applicable CSRC Rules), promptly notifying the CSRC or the relevant PRC Governmental Authority and providing it with such material information in accordance with to the applicable Laws, and promptly notifying the Sole Sponsor of such material information to the extent permitted by the applicable Laws; and
(k) without prejudice to the foregoing obligations, do all such other acts and things as may be reasonably required to be done by it to carry into effect the Transfer of ListingShare Offer.
8.3 The undertakings in this Clause 8 shall remain in full force and effect notwithstanding the completion of the Transfer of Listing and the matters and arrangements referred to or contemplated in this Agreement.
Appears in 1 contract
Samples: Placing Underwriting Agreement
