EXHIBIT 3
ENGLISH TRANSLATION
CHINESE FINANCIAL EDUCATION DEVELOPMENT FOUNDATION
AND
[NAME IN CHINESE]
(HUACHEN AUTOMOTIVE GROUP HOLDINGS COMPANY LIMITED)
-----------------------------------------
AGREEMENT FOR THE
SALE AND PURCHASE OF SHARES IN
BRILLIANCE CHINA AUTOMOTIVE HOLDINGS LIMITED
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XXXXX &
00xx Xxxxx Xxxxxxxxx Xxxxx
00 Xxxxxxxx Xxxx
Xxxx Xxxx
LKL/EC/DK/DK01936.FIN(2)(Clean).doc
CONTENTS
CLAUSE HEADING PAGE
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1. Definitions and Interpretation..............................................................1
2. Sale of the Sale Shares.....................................................................3
3. Consideration...............................................................................3
4 Offer.......................................................................................3
5 Completion..................................................................................4
6. Warranties..................................................................................5
7. Further Obligations of the Vendor...........................................................7
8. Restriction on Announcements................................................................8
9. General.....................................................................................8
10. Governing Law and Submission to Jurisdiction................................................9
Execution ...........................................................................................11
This Deed was executed by the following parties on 18 December 2002:
(1) CHINESE FINANCIAL EDUCATION DEVELOPMENT FOUNDATION, a non-governmental
non-profit making organisation established in the People's Republic of
China whose legal address is at 48 Xijiaominxiang Xicheng District,
Beijing 100031, PRC (the "VENDOR"); and
(2) [NAME IN CHINESE] (HUACHEN AUTOMOTIVE GROUP HOLDINGS COMPANY LIMITED),
a wholly state-owned limiTed liability company established in the
People's Republic of China whose legal address is at 00 Xxxxxxxxxxx
Xxxx, Xxxxxxx Xxxxxxxx, Xxxxxxxx City, Liaoning Province 110032, PRC
(the "PURCHASER").
RECITALS:
(A) The Company is a company incorporated in Bermuda with limited liability
whose principal place of business in Hong Kong is at Suites 2303-2306,
23rd Floor, Great Xxxxx Xxxxxx, 00 Xxxxxxx Xxxx, Xxxxxxx, Xxxx Xxxx. As
at the date hereof, the Company has an authorised capital of
US$50,000,000 divided into 5,000,000,000 Shares, each with a par value
of US$0.01. Of such Shares, 3,666,052,900 Shares have been issued and
are fully paid-up and are listed on, and dealt in on, the Stock
Exchange and on New York Stock Exchange, Inc. in the form of American
depository shares.
(B) The Vendor, as beneficial owner, has agreed to sell, and the Purchaser
has agreed to purchase, a total of 1,446,121,500 Shares beneficially
owned as at the date hereof by the Vendor, representing approximately
39.45% of the total issued share capital of the Company, and the
Purchaser has agreed to make the Offer, in each case upon the terms and
conditions hereinafter contained.
THE PARTIES HEREBY AGREE AS FOLLOWS:
1. DEFINITIONS AND INTERPRETATION
1.01 In this Deed, unless the context permits otherwise, the following words
and expressions shall have the following meanings:
"COMPANY" means Brilliance China Automotive Holdings Limited;
"COMPANIES ORDINANCE" means the Companies Ordinance (Chapter 32 of the
Laws of Hong Kong);
"COMPLETION" means completion of the sale and purchase of the Sale
Shares pursuant to Clause 5;
"COMPLETION DATE" means the date hereof (or such other date as the
Parties may agree in writing);
"CONSIDERATION" means the total consideration for the sale and purchase
of the Sale Shares, being the sum specified in Clause 3.01;
"DIRECTORS" means the directors of the Company;
"HK$" means the lawful currency for the time being of Hong Kong;
"HONG KONG" means the Hong Kong Special Administrative Region of the
PRC;
"LISTING RULES" means the Rules Governing the Listing of Securities on
the Stock Exchange;
"MANAGEMENT TEAM" means 4 of the executive directors of the Company
(i.e., Xx. Xx Xiao An (also known as Xx Xxx On), Mr. Su Qiang (also
known as So Keung), Mr. Hong Xing and Mr. He Tao (also known as Ho
To));
"OFFER" means the conditional general offer for the Offer Shares to be
made by CLSA Limited, on behalf of the Purchaser and the Management
Team, in accordance with the Takeovers Code;
"OFFER SHARES" means the existing issued Shares (whether they are
ordinary shares or American depository shares) but excluding the Sale
Shares and any other Shares (whether they are ordinary shares or
American depository shares) owned by the Purchaser and the Management
Team and parties acting in concert with them on the Completion Date
and/or acquired or agreed to be acquired by the Purchaser and the
Management Team and parties acting in concert with them while the Offer
remains open for acceptance;
"PARTIES" means the parties executing this Deed and "PARTY" means
either one of them;
"PARTIES ACTING IN CONCERT" has the meaning ascribed thereto in the
Takeovers Code;
"PRC" means the People's Republic of China but excluding, for the
purposes of this Deed, Hong Kong, Taiwan and Macau Special
Administrative Region of the PRC;
"SALE SHARES" means the 1,446,121,500 Shares to be bought and sold
pursuant to Clause 2;
"SALE SHARE PRICE" means HK$0.10 per Sale Share;
"SFC" means the Securities and Futures Commission of Hong Kong;
"SHARES" means ordinary shares with a par value of US$0.01 each in the
capital of the Company;
"STOCK EXCHANGE" means The Stock Exchange of Hong Kong Limited;
"TAKEOVERS CODE" means the Hong Kong Code on Takeovers and Mergers;
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"TAX" means all forms of taxation, estate duties, deductions,
withholdings, duties, imposts, levies, fees, charges, social security
contributions and rates imposed, levied, collected, withheld or
assessed by any local, municipal, regional, urban, governmental, state,
federal or other body in Hong Kong or elsewhere and any interest,
additional taxation, penalty, surcharge or fine in connection
therewith; and
"US$" means the lawful currency for the time being of the United States
of America.
1.02 The expressions the "VENDOR" and the "PURCHASER" shall, where the
context permits, include their respective successors and permitted
assigns.
1.03 In construing this Deed:
(a) the rule known as the ejusdem generis rule shall not apply
and, accordingly, general words introduced by the word "other"
shall not be given a restrictive meaning by reason of the fact
that they are preceded by words indicating a particular class
of acts, matters or things; and
(b) general words shall not be given a restrictive meaning by
reason of the fact that they are followed by particular
examples intended to be embraced by the general words.
2. SALE OF THE SALE SHARES
Subject to the terms of this Deed, the Vendor shall sell as beneficial
owner the Sale Shares and the Purchaser shall purchase such Shares free
from all liens, charges and encumbrances and together with all rights
now or hereafter attaching thereto (including all rights to any
dividend or other distribution declared, made or paid on or after the
date of this Deed).
3. CONSIDERATION
3.01 The total consideration payable to the Vendor for the Sale Shares shall
be HK$144,612,150.
3.02 The Consideration shall be payable on Completion Date in accordance
with Clause 5.03(a).
4. OFFER
4.01 The Purchaser undertakes to the Vendor, following and subject to
Completion, to comply with its obligations under the Takeovers Code to
make the Offer to the holders of the Offer Shares (other than such
holders in respect of which the SFC may agree may be excluded from the
Offer) together with the Management Team to purchase the Offer Shares
at a cash price per Offer Share equal to the Sale Share Price, such
Offer to be conditional only on the Purchaser and the Management Team
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receiving acceptances in respect of the Offer Shares which will result
in the Purchaser and the Management Team and parties acting in concert
with them (if any) holding, in aggregate, more than 50% of the total
issued Shares following the close of the Offer. The Vendor undertakes
to the Purchaser to use its best endeavours to procure that the Company
and the Directors comply with their respective obligations under the
Takeovers Code. Following Completion and in accordance with the
Takeovers Code, the Parties shall use their respective best endeavours
(and the Vendor shall use its best endeavours to procure that the
Company uses its best endeavours) to procure the despatch by such date
as is required under the Takeovers Code (or such later date as may be
approved by the SFC and agreed in writing by the Parties) to all
holders of the Shares on the register of members of the Company as at
the latest practicable date stated in the offer document (whether they
are holders of ordinary shares or holders of American depository
shares) (other than such holders in respect of which the SFC may agree
may be excluded from the Offer), of the offer document.
4.02 The Parties hereby undertake that they will each use all reasonable
endeavours to supply such information as may be reasonably required to
be included in the documents to be despatched or the announcements to
be issued pursuant to the Takeovers Code in connection with the Offer,
take respective responsibility for such information and authorise the
publication, despatch and/or release of such documents and
announcements.
5. COMPLETION
5.01 Completion shall take place on the Completion Date at the offices of
Xxxxx & XxXxxxxx, Beijing (or such other date and place as the Parties
may agree in writing) when all (but not some only) of the events set
out in Clauses 5.02 and 5.03 shall occur.
5.02 At Completion, the Vendor shall deliver or cause to be delivered to the
Purchaser:
(a) duly executed instruments of transfer and sold notes in
respect of all of the Sale Shares in favour of the Purchaser
(or its nominee) accompanied by the relevant share
certificates (other than the share certificates representing
110,006,000 Shares of the Sale Shares (i.e., share certificate
numbers BLC00013026 and BLC00006473) and the 6,000 Shares
which are held by The Bank of New York, in its capacity as the
depositary for the Vendor, in its custodian account entitled
"unexchanged shares", all of which have been lost by the
Vendor) and a Hong Kong dollar cheque drawn in favour of the
Government of the Hong Kong Special Administrative Region for
the Vendor's estimated share of stamp duty payable in respect
of the transfer of the Sale Shares;
(b) such waivers or consents as the Purchaser may require to
enable the Purchaser or its nominees to be registered as the
holder(s) of any of the Sale Shares;
(c) certified copies of any powers of attorney under which any of
the documents referred to in this Clause 5.02 are executed or
evidence satisfactory to the Purchaser of the authority of any
person signing on behalf of the Vendor; and
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(d) such other documents as may be required to give to the
Purchaser good title to the Sale Shares and to enable the
Purchaser or its nominees to become the registered holders
thereof.
5.03 At Completion, the Purchaser shall, subject to compliance by the Vendor
of all of its obligations under Clause 5.02:
(a) pay the Consideration in such manner as the Parties may agree;
and
(b) deliver to the Vendor a certified copy of the minutes of a
meeting of the board of directors of the Purchaser which is
held for the purposes of approving the execution by the
Purchaser of this Deed.
5.04 Without prejudice to any other rights enjoyed by the Purchaser or any
other remedies available to the Purchaser, if in any respect the
provisions of Clause 5.02 are not complied with by the Vendor on the
Completion Date, the Purchaser may:
(a) defer Completion to a date not more than 28 days after the
Completion Date (and so that the provisions of this Clause
shall apply to Completion as so deferred); or
(b) proceed to Completion so far as practicable (without prejudice
to its rights under this Deed); or
(c) rescind this Deed.
6. WARRANTIES
6.01 The Vendor represents, warrants and undertakes to and with the
Purchaser (to the intent that the provisions of this Clause shall
continue to have full force and effect notwithstanding Completion) that
each of the following statements is true and accurate as at the date
hereof:
(a) It is the beneficial owner of the Sale Shares, free and clear
of any lien, charge, or other encumbrance whatsoever and the
Company has not exercised any lien over any of the Sale Shares
and there is no outstanding call on the Sale Shares and all of
the Sale Shares are fully paid.
(b) The Sale Shares represent 39.45% of the entire issued share
capital of the Company and constitute all the issued shares in
the Company that are owned by the Vendor and no issued Shares
are owned by any of the Vendor's associates (as defined in the
Listing Rules).
(c) It is a non-governmental non-profit making organisation
established and validly existing under the laws of the PRC. No
receivers have been appointed nor has it been wound up, and it
has not taken any steps for its winding up. No petition has
been presented for its winding up and no distress, execution
or other process has been levied on any of its assets.
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(d) It has the organisational power and other power to enter into
and perform its obligations under this Deed and to carry out
the transactions contemplated hereby.
(e) It has taken all necessary organisational action or other
action to authorise the entering into and performance of this
Deed and to carry out the transactions contemplated hereby.
(f) This Deed is a valid and binding obligation on the Vendor.
(g) All information contained in this Deed (including the
Recitals) is true and accurate in all respects and not
misleading in any respect.
6.02 The Vendor acknowledges that the Purchaser entered into this Deed in
reliance upon the warranties referred to in Clause 6.01 and have been
induced by them to enter into this Deed.
6.03 Any liability of the Vendor in respect of a breach of the warranties
referred to in Clause 6.01 shall survive Completion.
6.04 Each of the warranties referred to in Clause 6.01 shall be separate and
independent and, save as expressly provided to the contrary, shall not
be limited by reference to or inference from any other warranty or any
other term of this Deed or other warranties referred to above or other
clauses.
6.05 Without restricting the rights of the Purchaser or otherwise affecting
the ability of the Purchaser to claim damages on any other basis
available to it, in the event that any of the warranties referred to in
Clause 6.01 is broken or (as the case may be) proves to be untrue or
misleading, the Vendor shall, on demand, pay to the Purchaser:
(a) the amount to restore the Purchaser to its original position
(had the warranties referred to in Clause 6.01 not been
breached or (as the case may be) had they been true and not
been misleading); and
(b) all costs and expenses incurred by the Purchaser in connection
with or as a result of such breach and any costs (including
legal costs on a solicitor and own client basis), expenses or
other liabilities which the Purchaser may incur either before
or after the commencement of any action in connection with:
(i) any legal proceedings in which the Purchaser claims that
any of the warranties has been broken or is untrue or
misleading and in which judgment is given for the Purchaser;
or (ii) the enforcement of any settlement of, or judgment in
respect of, such claim.
6.06 The benefit of the warranties referred to in Clause 6.01 may be
assigned in whole or in part and without restriction by the person for
the time being entitled thereto.
6.07 If any sum payable by the Vendor under this Clause 6 shall be subject
to Tax (whether by way of deduction or withholding or direct assessment
of the person entitled thereto), such payment shall be increased by
such an amount as shall ensure that after
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deduction, withholding or payment of such Tax the recipient shall have
received a net amount equal to the payment otherwise required hereby to
be made.
7. FURTHER OBLIGATIONS OF THE VENDOR
7.01 The Vendor undertakes to and with the Purchaser to indemnify the
Purchaser or the Company against any liability incurred by the
Purchaser or the Company arising from or in connection with the loss of
the share certificates representing 110,006,000 Shares of the Sale
Shares (i.e., share certificate numbers BLC00013026 and BLC00006473)
and the 6,000 Shares which are held by The Bank of New York, in its
capacity as the depositary for the Vendor, in its custodian account
entitled "unexchanged shares") (collectively hereinafter referred to as
the "LOST SHARE CERTIFICATES") by the Vendor and/or the failure by the
Vendor to deliver the Lost Share Certificates to the Purchaser at
Completion or the Purchaser's request made to the Company or Bank of
New York to issue a replacement share certificate in respect of the
Shares listed in the Lost Share Certificates or the Purchaser (or its
nominee) not being able to be registered as the holder of all of the
Sale Shares in the Company's register of members or any claims, losses,
expenses, disbursements or other liabilities in connection therewith
(collectively referred to herein as the "PURCHASER'S CLAIMS"). The
indemnity to which this Clause 7.01 relates includes, without
limitation, all payments, costs or expenses arising from or in
connection with the settlement of any Purchaser's Claims or the
enforcement of any judgement or decision in respect of such Purchaser's
Claims.
7.02 If any sum payable by the Vendor under Clause 7.01 shall be subject to
Tax (whether by way of deduction or withholding or direct assessment of
the person entitled thereto), such payment shall be increased by such
an amount as shall ensure that after deduction, withholding or payment
of such Tax the recipient shall have received a net amount equal to the
payment otherwise required hereby to be made.
7.03 The Vendor undertakes to and with the Purchaser to use its best
endeavours to assist the Purchaser in obtaining a replacement share
certificate issued by the Company evidencing its ownership of the
Shares listed in the Lost Share Certificates or for Bank of New York to
arrange for the issue of such replacement share certificate and to
procure the Purchaser (or its nominee) to be registered on the
Company's register of members as the holder of the Sale Shares. In
addition, the Vendor also undertakes to and with the Purchaser to do
and execute or procure to be done and executed all such further acts,
deeds, things and documents as may be necessary, or which the Purchaser
may require, to enable the Purchaser to be issued the foregoing share
certificate or to enable the Purchaser (or its nominee) to be
registered on the Company's register of members as the holder of the
Sale Shares.
7.04 The Vendor hereby irrevocably appoints the Purchaser as its attorney
(with full power of substitution) to exercise all rights attaching to
the Relevant Shares (as hereinafter defined) before the Purchaser (or
its nominee) is registered on the Company's register of members as the
holder of the Shares listed in the Lost Share Certificates (the
"RELEVANT SHARES"). In addition, the Vendor also agrees to do and
execute or procure to be done and executed all such further acts,
deeds, things and documents as may be
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necessary to give effect to this Clause 7.04 and to comply with its
obligations under this Clause 7.04.
7.05 The Vendor shall give all such assistance and provide such information
as the Purchaser shall reasonably request from time to time for the
purpose of enabling the Purchaser to make returns and provide
information as required to any Tax authority and to negotiate any
liability to Tax.
8. RESTRICTION ON ANNOUNCEMENTS
Each Party undertakes that as from the date of this Deed it will not
(save as required by law or the SFC or the Stock Exchange or any rule
of any relevant stock exchange) make any announcement in connection
with this Deed or the transactions or arrangements contemplated
hereunder or referred to herein unless the other Party shall have given
its consent to such announcement (which consent may not be unreasonably
withheld and may be given either generally or in a specific case or
cases and may be subject to conditions), provided that the restrictions
contained in this Clause 8 shall not apply so as to prevent the
Purchaser from making any disclosure required by law or the Takeovers
Code or the Listing Rules or any rule made by the Stock Exchange or the
SFC or any disclosure required by any stock exchange, supervisory or
regulatory body pursuant to which the Purchaser is subject.
9. GENERAL
9.01 Each Party shall bear its own costs and disbursements (including stamp
duty) of and incidental to this Deed and the sale and purchase hereby
agreed to be made.
9.02 Each notice, demand or other communication given or made under this
Deed shall be in writing and delivered or sent to the relevant Party at
its address stated at the beginning of this Deed (or such other address
as the addressee has by five (5) days' prior written notice specified
to the other Party).
9.03 This Deed (together with any documents referred to herein) constitutes
the whole agreement between the Parties; it is expressly declared by
each Party that no variations hereof shall be effective unless made in
writing signed by duly authorised representatives of the Parties.
9.04 The provisions of this Deed (including but not limited to the
warranties referred to in this Deed and Clauses 7.01, 7.03 and 9.08)
which have not been fully performed on Completion shall remain in full
force and effect notwithstanding Completion.
9.05 If any provision or part of a provision of this Deed shall be, or be
found by any authority or court of competent jurisdiction to be,
invalid or unenforceable, such invalidity or unenforceability shall not
affect the other provisions or parts of such provisions of this Deed,
all of which shall remain in full force and effect.
9.06 Any right of rescission conferred upon the Purchaser shall be in
addition to and without prejudice to all other rights and remedies
available to it (and, without
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prejudice to the generality of the foregoing, shall not extinguish any
right to damages to which the Purchaser may be entitled in respect of
the breach of this Deed) and no exercise or failure to exercise such a
right of rescission shall constitute a waiver by the Purchaser of any
such other right or remedy.
9.07 No failure or delay by the Purchaser in exercising any right, power or
remedy under this Deed 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.
9.08 Upon and after Completion, the Vendor shall do and execute or procure
to be done and executed all such further acts, deeds, things and
documents as may be necessary to give effect to the terms of this Deed
and to place control of the Company and its subsidiaries (as defined in
the Companies Ordinance) in the hands of the Purchaser.
9.09 This Deed may be executed in one or more counterparts, and by the
Parties on separate counterparts, but shall not be effective until each
Party has executed at least one counterpart and each such counterpart
shall constitute an original of this Deed but all the counterparts
shall together constitute one and the same instrument.
10. GOVERNING LAW AND SUBMISSION TO JURISDICTION
10.01 This Deed shall be governed by and construed in accordance with the
laws of Hong Kong and the Parties hereby irrevocably submit to the
non-exclusive jurisdiction of the Hong Kong courts.
10.02 The Vendor hereby appoints the following person as its agent to receive
and acknowledge on its behalf service of any writ, summons, order,
judgment or other notice of legal process in Hong Kong. If for any
reason the agent named below (or its successor) no longer serves as
agent of the Vendor for this purpose, the Vendor shall promptly appoint
a successor agent and notify the Purchaser thereof. The Vendor agrees
that any such legal process shall be sufficiently served on it if
delivered to such agent for service at its address for the time being
in Hong Kong (whether or not such agent gives notice thereof to the
Vendor):
Xx. Xxxxx Xxxx
Address: Suites 2303-2306, 23rd Floor, Great Xxxxx Xxxxxx, 00 Xxxxxxx
Xxxx, Xxxxxxx, Xxxx Xxxx
10.03 The Purchaser hereby irrevocably appoints the following person as its
agent to receive and acknowledge on its behalf service of any writ,
summons, order, judgment or other notice of legal process in Hong Kong.
If for any reason the agent named below (or its successor) no longer
serves as agent of the Purchaser for this purpose, the Purchaser shall
promptly appoint a successor agent and notify the Vendor thereof. The
Purchaser agrees that any such legal process shall be sufficiently
served on it if delivered to such agent for service at its address for
the time being in Hong Kong (whether or not such agent gives notice
thereof to the Purchaser):
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Xx. Xx Xiao On (also known as Xx Xxx On)
Address: Suites 2303-2306, 23rd Floor, Great Xxxxx Xxxxxx,
00 Xxxxxxx Xxxx, Xxxxxxx, Xxxx Xxxx
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IN WITNESS WHEREOF the parties hereto have executed this document as a Deed on
the date appearing at the head hereof.
THE COMMON SEAL of )
CHINESE FINANCIAL EDUCATION )
DEVELOPMENT FOUNDATION ) SEAL
was hereunto affixed in the presence of: )
/s/ He Xxxx Xxxxx
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THE COMMON SEAL of )
[NAME IN CHINESE] )
(HUACHEN AUTOMOTIVE GROUP ) SEAL
HOLDINGS COMPANY LIMITED) )
was hereunto affixed in the presence of: )
/s/ Xxx Xx
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