Exhibit 4(pp)
Dated 28th October, 2004
(1) ASIAN MOTION LIMITED
(2) PACIFIC CENTURY PREMIUM DEVELOPMENTS LIMITED
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SUBSCRIPTION AGREEMENT
relating to
shares in the capital of
PACIFIC CENTURY PREMIUM DEVELOPMENTS LIMITED
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XXXXXXXX XXXXXX
00/X, Xxxxxxxxx Xxxxx
00-00 Xxxxxx Xxxx
Xxxxxxx
Xxxx Xxxx
THIS AGREEMENT is dated 28th October, 2004 and made
BETWEEN:
1. ASIAN MOTION LIMITED, a company incorporated in the British Virgin Islands
and whose registered office is at P.O. Box 957, Offshore Incorporations
Centre, Road Town, Tortola, British Virgin Islands (the "Subscriber"); and
2. PACIFIC CENTURY PREMIUM DEVELOPMENTS LIMITED, a company incorporated in
Bermuda and whose principal place of business in Hong Kong is at 0xx Xxxxx,
Xxxxxxxxx 0, 000 Xxxxxxxxx Xxxx, Xxxx Xxxx (the "Company").
WHEREAS:
(A) the Subscriber is the beneficial owner of 1,411,333,335 Shares and the
Subscriber has agreed to appoint the Placing Agent (as defined below) as
placing agent for the purpose of procuring, as agent of the Subscriber,
purchasers for the Placing Shares (as defined below) on the terms and
subject to the conditions set out in the Placing Agreement; and
(B) the Company has agreed to issue, and the Subscriber has agreed to subscribe
for, the Subscription Shares subject to and on the terms set out in this
Agreement
THE PARTIES AGREE THAT:
1. INTERPRETATION
1.1 Definitions: In this Agreement and the Introduction:
"Accounts" the audited consolidated profit and loss accounts of
the Property Group for the financial year ended on
the Accounts Date and the audited consolidated
balance sheet of the Property Group as at the
Accounts Date, both as set out in Appendix I of the
circular issued by the Company dated 2nd April,
2004;
"Accounts Date" 31st December, 2003;
"Announcement" the press announcement in the agreed form proposed
to be issued by the Company and PCCW Limited jointly
in substantially such form immediately following the
execution of this Agreement;
"Associates" the meaning given to that term in the Listing Rules;
"Business Day" any day (excluding a Saturday) on which banks
generally are open for business in Hong Kong;
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"CCASS" the Central Clearing and Settlement System operated
by Hong Kong Securities Clearing Company Limited;
"Companies Ordinance" the Companies Ordinance (Cap. 32 of the Laws of Hong
Kong);
"Group" the Company and its Subsidiaries and the expression
"member of the Group" shall be construed
accordingly;
"HK$" Hong Kong currency;
"Hong Kong" the Hong Kong Special Administrative Region of the
People's Republic of China;
"Listing Rules" the Rules Governing the Listing of Securities on The
Stock Exchange of Hong Kong Limited;
"Placee" any institutional investor procured by the Placing
Agent to purchase any of the Placing Shares pursuant
to the Placing Agent's obligations under the Placing
Agreement;
"Placing" the offer by way of a private placing of the Placing
Shares procured by the Placing Agent to selected
investors on the terms and subject to the conditions
set out in the Placing Agreement;
"Placing Agreement" the placing agreement between the Subscriber and the
Placing Agent of even date in respect of the placing
of the Placing Shares at the Placing Price;
"Placing Agent" Xxxxxx Brothers Asia Limited;
"Placing Completion 1st November, 2004 or such other date as the
Date" Subscriber and the Placing Agent shall agree in
writing;
"Placing Price" the price of HK$2.18 per Placing Share;
"Placing Shares" 118 million Shares;
"Property Group" has the meaning ascribed thereto in the circular
issued by the Company dated 2nd April, 2004
"Regulation S" Regulation S under the US Securities Act;
"Shares" fully paid ordinary shares of HK$0.10 each in the
capital of the Company;
"SFC" the Securities and Futures Commission of Hong Kong;
"Stock Exchange" The Stock Exchange of Hong Kong Limited;
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"Subscription" the subscription by the Subscriber for the
Subscription Shares on the terms and subject to the
conditions set out in this Agreement;
Subscription the Business Day immediately after the date upon
Completion Date" which the last of the conditions set out in Clause
2.2 shall have been satisfied provided that the
Subscription Completion Date shall not be later tha
the date falling 14 days from the date of this
Agreement or such later time and/or date as the
Company and the Subscriber may agree in writing,
such agreement not to be unreasonably withheld or
delayed and subject to compliance in full with the
connected transaction requirements of the Listing
Rules;
"Subscription
Completion" the meaning given to that term in Clause 2.5;
"Subscription Price" HK$2.18 per Subscription Share;
"Subscription Shares" 118 million new Shares;
"Subsidiary" has the same meaning as in Section 2 of the
Companies Ordinance;
"United States" has the meaning given in Regulation S; and
"US Securities Act" the United States Securities Act of 1933, as
amended.
1.2 Agreed Form: Any reference to a document being "in the agreed form" means
in the form of a document or and the draft thereof signed for
identification on behalf of the Subscriber and the Company with (in the
case of a draft) such alterations (if any) as may be agreed between the
Subscriber and the Company.
1.3 Reference: References in this Agreement to persons include references to
bodies corporate and references to the singular include references to the
plural and vice versa. References to "Clauses" are references to the
clauses of this Agreement.
1.4 Headings: Headings are inserted for convenience only and shall not affect
the interpretation of this Agreement.
2. SUBSCRIPTION
2.1 Subscription: subject to the fulfilment of the conditions set out in Clause
2.2, the Subscriber agrees to subscribe as principal for the Subscription
Shares and the Company agrees to issue the Subscription Shares at the
Subscription Price on the Subscription Completion Date free from all liens,
charges and encumbrances together with all rights attaching to them,
including the right to receive all dividends declared, made or paid, on and
after the Subscription Completion Date.
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2.2 Conditions: Completion of the Subscription is conditional upon:
(a) the Stock Exchange granting listing of and permission to deal in the
Subscription Shares;
(b) the Bermuda Monetary Authority approving the issue of the Subscription
Shares (if required); and
(c) completion of the Placing having occurred pursuant to the terms of the
Placing Agreement.
2.3 Fulfilment: The Company and the Subscriber shall each use their respective
best endeavours to procure the fulfilment of the conditions set out in
Clause 2.2 and in particular shall furnish such information, supply such
documents, pay such fees, give such undertakings and do all such acts and
things as may reasonably be required by each other, the SFC and/or the
Stock Exchange in connection with the fulfilment of such conditions.
2.4 Non-Fulfilment: If the conditions set out in Clause 2.2 are not fulfilled
on or prior to 30th November, 2004 or such later date as may be agreed in
writing between the Company and the Subscriber, the obligations of the
Company and the Subscriber under this Clause 2 shall terminate and neither
of the parties shall have any claim against the others for costs, damages,
compensation or otherwise in respect of the Subscription.
2.5 Completion: Subject to the fulfilment of the conditions set out in Clause
2.2, completion of the Subscription ("Subscription Completion") shall take
place at the office of the Company at or before 4:00 p.m. on the
Subscription Completion Date or such other time as the Company and the
Subscriber may agree in writing (subject to compliance with the Listing
Rules) all but not some only of the following business shall be transacted:
(a) the Company shall :
(i) allot and issue to the Subscriber or its nominee the Subscription
Shares and shall promptly thereafter register the Subscriber or
its nominee as the holder of the Subscription Shares and shall
cause to be delivered to the Subscriber definitive certificates
of title in respect of the Subscription Shares in the name of the
Subscriber or its nominee; and
(ii) deliver to the Subscriber certified copies of the resolutions of
the board of directors of the Company allotting the Subscription
Shares pursuant to Clause 2.5(a)(i); and
(b) the Subscriber shall make or procure the making of payment in
Hong Kong dollars for value on the Subscription Completion Date
to the Company of the aggregate Subscription Price of the
Subscription Shares less the expenses properly incurred by it in
connection with the Subscription and the Placing to the bank
account nominated for the purpose by the Company (such nomination
being made) not less than 2:00 pm on the Subscription Completion
Date or in such other manner as may be agreed between the
parties, which shall constitute a
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complete discharge of the Subscriber's obligations in respect thereof.
3. WARRANTIES AND UNDERTAKINGS
3.1 Company Warranties: In consideration of the Subscriber entering into this
Agreement and agreeing to perform its obligations hereunder to, the Company
hereby represents, warrants and undertakes to the Subscriber as follows:
(a) the Subscription Shares will when issued be fully paid up, rank pari
passu in all respects with the existing Shares then in issue, include
the right to receive all dividends and distributions which may be
declared made or paid after the Subscription Completion Date and be
free and clear of all liens, encumbrances, equities or other third
party rights;
(b) all statements of fact contained in the Announcement are true and
accurate in all material respects and not misleading in any material
respect in the context of the Subscription and the Placing and all
statements of opinion, intention or expectation of the directors of
the Company in relation to the Company or any of its Subsidiaries
contained therein are truly and honestly held and have been made after
due and careful consideration and there is no other fact or matter
omitted therefrom the omission of which would make any statement
therein misleading in any material respect or which is otherwise
material in the context of the Subscription and the Placing;
(c) the Accounts:
(i) have been prepared on a recognised and consistent basis and in
accordance with generally accepted accounting principles,
standards and practice in Hong Kong;
(ii) comply in all material respects with all applicable ordinances,
statutes and regulations and show a true and fair view of the
state of affairs of the Property Group and of its results for the
period in question;
(iii) are not affected by any unusual or non-recurring items and do
not include transactions not normally undertaken by the relevant
member of the Property Group (save as disclosed in the said
accounts); and
(iv) make adequate provision for all taxation whether in Hong Kong or
any other part of the world in respect of all accounting periods
ended on or before the respective date for which the relevant
member of the Property Group was then or might at any time
thereafter become or have been liable;
(d) since the Accounts Date, there has been no material adverse change in
the Property Group's condition, financial or otherwise, or the
earnings, business affairs or business prospects (whether or not
arising in the ordinary course of business) and no event has occurred
which in the reasonable opinion of the
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Company may give rise to a material adverse change in such position in
the foreseeable future;
(e) (i) none of the Company nor any of its affiliates (as defined in Rule
501(b) of Regulation D) nor any person acting on its or their behalf
has engaged or will engage in any directed selling efforts (as defined
in Regulation S under the US Securities Act) with respect to the
Placing Shares; (ii) the Company, its affiliates and any person (other
than the Placing Agent) acting on its or their behalf have complied
with and will comply with the offering restrictions requirement of
Regulation S under the US Securities Act; and (iii) the Company is a
"foreign issuer" as such term is defined in Rule 902 under the US
Securities Act and is not subject to the reporting requirements of the
US Exchange Act provided that no warranty is given by the Company in
connection with Subscriber or its affiliates (other than the members
of the Group);
(f) neither the Company nor any of its affiliates nor any person acting on
its or their behalf has offered or sold, or will offer or sell, any
securities under circumstances that would require the registration of
any of the Placing Shares under the US Securities Act; neither the
Company nor any of its affiliates nor any person acting on its or
their behalf has engaged or will engage in any form of general
solicitation or general advertising within the meaning of Regulation D
in connection with the offer or sale of the Placing Shares in the
United States provided that no warranty is given by the Company in
connection with Subscriber or its affiliates (other than the members
of the Group); and
(g) the Company is required to register as an investment company as
defined in the United States Investment Company Act of 1940 and will
not become an open-end investment company, unit investment trust or
closed-end investment company that is required to be registered under
Section 8 of such Act.
3.2 Warranties repeated: The representations and warranties set out in Clause 3
are given as at the date hereof and shall be deemed to be repeated by the
Company as at the Subscription Completion Date as if given or made at such
time, with reference in each case to the facts and circumstances then
subsisting. The Company undertakes up to and until completion of this
Agreement or its earlier termination to notify the Subscriber of any matter
or event coming to its attention prior to the Subscription Completion Date
which would or would reasonably be considered to render or have rendered
any of the representations and warranties made by it set out in Clause 3.1
untrue, inaccurate or misleading in any material respect. The Company shall
not, and shall use its reasonable endeavours to procure that no member of
the Group shall, at any time prior to or on the Subscription Completion
Date do or omit to do anything which may cause any of the representation
and warranties made by the Company and set out in Clause 3.1 to be untrue
in any material respect.
3.3 Subscriber Warranties: The Subscriber hereby represents, warrants and
undertakes to the Company that (a) the Subscriber has the necessary power
and authority and has obtained all necessary consents to enable it to sell
the Placing Shares under the Placing Agreement and (b) this Agreement
constitutes valid and legally binding and enforceable obligations of the
Subscriber.
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3.4 No merger: The foregoing provisions of this Clause 3 shall remain in full
force and effect notwithstanding completion of the Subscription.
3.5 Undertaking by the Subscriber: The Subscriber undertakes to accept the
Subscription Shares subject to the constitutional documents of the Company
and (subject to and conditional upon Subscription Completion) to pay to the
Company any interest accrued on the net proceeds from the Placing for the
period commencing on the Placing Completion Date and ending on the
Subscription Completion Date.
4. GENERAL
4.1 Announcements: Save for the Announcement and save as required by law or by
the Stock Exchange or the SFC, each party hereby undertakes to use its best
endeavours to procure that no public announcement or communication to the
press, the Stock Exchange or the shareholders of the Company concerning the
Company and/or its Subsidiaries which is material in relation to the
Subscription shall be made by or on behalf of the Company between the date
hereof and the Subscription Completion Date without prior written approval
from the other party hereto as to the content, timing and manner of making
thereof, such approval not to be unreasonably withheld or delayed.
4.2 Time of the essence: Any time, date or period mentioned in this Agreement
may be extended by mutual agreement between the Subscriber and the Company
but, as regards any time, date or period originally fixed or any date or
period so extended as aforesaid, time shall be of the essence.
4.3 Waiver: No failure or delay by any party in exercising any right, power or
remedy under this Agreement shall operate as a waiver thereof, nor shall
any single or partial exercise of the same preclude any further exercise
thereof or the exercise of any other right, power or remedy. Without
limiting the foregoing, no waiver by any party of any breach of any
provision hereof shall be deemed to be a waiver of any subsequent breach of
that or any other provision hereof.
4.4 Assignment: No party hereto shall assign any of its rights under this
Agreement (all of which shall be incapable of assignment) or purport to do
so unless agreed by the other party hereto. This Agreement shall be binding
on and enure for the benefit of each party's successors and permitted
assigns.
4.5 Counterparts: This Agreement may be executed in any number of counterparts
by the party hereto on separate counterparts, each of which when executed
shall constitute an original and all of which when taken together shall
constitute one and the same document.
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5. NOTICES
5.1 Notices: All notices delivered hereunder shall be in writing in the English
language and shall be communicated to the following addresses :-
If to the Subscriber :
00xx Xxxxx, XXXX Xxxxx
XxxXxx Xxxxx
000 Xxxx'x Xxxx, Xxxxxx Xxx
Xxxx Xxxx
Fax no.: (000) 0000 0000
Attention: Company Secretary
If to the Company :
0xx Xxxxx, Xxxxxxxxx 0
000 Xxxxxxxxx Xxxx
Xxxx Xxxx
Fax no.: 0000 0000
Attention: Company Secretary
5.2 Deemed service: Any such notice shall be served either by hand or by
facsimile. Any notice shall be deemed to have been served, if served by
hand, when delivered and if sent by facsimile, on receipt of confirmation
of transmission. Any notice received on a day which is not a Business Day
shall be deemed to be received on the next Business Day.
6. GOVERNING LAW
6.1 Hong Kong Law: This Agreement is governed by and shall be construed in
accordance with the laws of Hong Kong for the time being in force and the
parties hereto hereby irrevocably submit to the non-exclusive jurisdiction
of the Hong Kong courts in connection herewith.
6.2 Subscriber's service agent: The Subscriber irrevocably appoints PCCW
Secretaries Limited of 00xx Xxxxx, XXXX Xxxxx, XxxXxx Xxxxx, 000 Xxxx'x
Xxxx, Xxxxxx Xxx, Xxxx Xxxx as its process agent to receive on its behalf
service of process of any proceedings in Hong Kong. If for any reason the
process agent ceases to be able to act as process agent or no longer has an
address in Hong Kong, the Subscriber irrevocably agrees to appoint a
substitute process agent with an address in Hong Kong acceptable to the
Company and to deliver to the Company a copy of the substitute process
agent's acceptance of that appointment within 30 days. In the event that
the Subscriber fails to appoint a substitute process agent, it shall be
effective service for the Company to serve the process upon the last known
address in Hong Kong of the last known process agent for that Subscriber
notified to the Company notwithstanding that such process agent is
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no longer found at such address or has ceased to act provided that a copy
of the proceedings is also sent to that the Subscriber's current registered
office or principal place of business wherever situated. Nothing in this
Agreement shall affect the right to serve process in any other manner
permitted by law.
AS WITNESS the hands of the duly authorised representatives of the parties on
the day and year first before written.
SIGNED by )
Alexander Xxxxxxx Xxxxx )
for and on behalf of )
ASIAN MOTION LIMITED )
in the presence of )
SIGNED by )
Xxxx Tin Fan Director )
for and on behalf of )
PACIFIC CENTURY PREMIUM )
DEVELOPMENTS LIMITED )
in the presence of )
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