EXHIBIT C
OPTION AGREEMENT
between
SINO-JP FUND CO., LTD.
and
PACIFIC ELECTRIC WIRE & Cable Co., Ltd
relating to
7,307,948 Shares in Asia Pacific Wire & Cable Corporation Limited
[Xxxxxxx & Xxxxxxx Logo Omitted]
36th Floor Xxxxxx Kong Center 0 Xxxxx'x Xxxx Xxxxxxx Xxxx Xxxx
T (000) 0000 0000 F (000) 0000 0000 DX 009121 Central 1
CONTENTS
1. Interpretation......................................................1
2. Grant of Option.....................................................2
3. Exercise of Option..................................................2
4. Completion..........................................................2
5. Guaranteed Return...................................................2
6. Continuing effect of this Agreement.................................3
7. Whole agreement and variations......................................3
8. Notices.............................................................3
9. Law and Jurisdiction................................................4
SCHEDULE 1................................................................5
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THIS Agreement is made on 2004
BETWEEN:
(1) SINO-JP FUND CO., LTD., (the "Purchaser"), a company incorporated in
the Cayman Islands and having its registered office at XX Xxx 000XX,
Xxxxxx Xxxxx, Xxxxx Church Street, Xxxxxx Town, Grand Cayman; and
(2) PACIFIC ELECTRIC WIRE & CABLE CO., LTD, (the "Vendor"), a company
incorporated in the Republic of China and having its registered office
at 26th Floor, No. 95, Xxxxxxx 0, Xxxxxx Xxxxx Xxxx, Xxxxxx 000,
Xxxxxx.
BACKGROUND:
By a share purchase agreement (the "Share Purchase Agreement") dated 10
September 2004 entered into by the Vendor, Asset Managers Co., Ltd. and others,
the Vendor has agreed to sell the Sale Shares in Asia Pacific Wire & Cable
Corporation Limited (the "Company") to the Purchaser. Pursuant to the Share
Purchase Agreement, the Vendor and Purchaser shall, upon Completion of the Share
Purchase Agreement, enter into this Option Agreement.
THE PARTIES AGREE THAT:
1. INTERPRETATION
1.1 In this Agreement, unless the context requires otherwise:-
"First Option" the option set out in row (1) of Schedule 1;
"Half-yearly Guaranteed
Return" has the meaning defined in Clause 5;
"Options" the call options granted under Clause 2.1,
including the First Option, the Second Option
and the Third Option;
"Option Dates" the respective dates on which the Options can
be completed as specified in Column (3) of
Schedule 1;
"Option Shares" 7,307,948 Shares of the Company (to be owned
by and registered in the name of the
Purchaser) particulars of which are set out
in column (2) of Schedule 1 hereto;
"Purchase Consideration" in relation to all the Option
Shares US$18,861,814, calculated based on the
per share price set out in Column (4) of
Schedule 1;
"Second Option" the option set out in row (2) of Schedule 1;
and
"Third Option" the option set out in row (3) of Schedule 1.
1.2 Unless otherwise stated or defined in this Agreement, terms and
expressions used in the Share Purchase Agreement shall have the same
meanings when used in this Option Agreement.
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1.3 The headings in this Agreement are for convenience only and shall not
affect the construction of this Agreement.
1.4 The schedule shall have effect as if set out herein.
2. GRANT OF OPTION
2.1 In consideration of the entering into of the Share Purchase Agreement
and the granting of the Half-yearly Guaranteed Return by the Vendor to
the Purchaser, the Purchaser hereby grants to the Vendor the Options to
purchase the Option Shares subject to and in accordance with the terms
of this Agreement.
2.2 The Option Shares shall be sold with good title thereto and free from
all liens, charges and encumbrances and with all rights attached
thereto as at the Option Date.
3. EXERCISE OF OPTION
3.1 Notice to exercise ("EXERCISE NOTICE") an Option may be given on one
occasion only on any day falling at least 30 Business Days prior to the
relevant Option Date (or the next Business Day if such day is not a
Business Day) in respect of all (but not part) of the Option Shares.
The exercise of the relative Option shall be completed on the Option
Date.
3.2 If the First Option is not exercised by an Exercise Notice on or before
the day falling 30 Business Days prior to the applicable Option Date
set out against it in Column 3 of Schedule 1, the First Option shall
forthwith lapse automatically and shall have no further force or
effect.
3.3 If the Second Option is not exercised by an Exercise Notice on or
before the day falling 30 Business Days prior to the applicable Option
Date set out against it in Column 3 of Schedule 1, the Second Option
shall forthwith lapse automatically and shall have no further force or
effect.
3.4 If the Third Option is not exercised by an Exercise Notice on or before
the day falling 30 Business Days prior to the applicable Option Date
set out against it in Column 3 of Schedule 1, the Third Option shall
forthwith lapse automatically and shall have no further force or
effect.
4. COMPLETION
4.1 In the event of an exercise of one of the Options, completion shall
take place at the offices of the Purchaser at the time and on the
Option Date specified in Column 3 of Schedule 1 for such Option, when
the following matters shall be transacted:-
(A) the Vendor shall pay or procure the payment to the Purchaser
(or as the Purchaser may direct in writing) of the Purchase
Consideration; and
(B) the Purchaser shall deliver to the Vendor transfers in favour
of the Vendor (or as the Vendor may direct in writing)
together (where appropriate) with the share certificates
therefor.
5. GUARANTEED RETURN
5.1 The Vendor hereby agrees and undertakes to, as from the date of
Completion of the Share Purchase Agreement to the end of the three (3)
calendar years thereafter (i.e. [14] September 2007), guarantee and
procure a return at the annual rate of 14.5% on the amount of the
Purchase Consideration, being a sum of US$2,734,963 for each such
calendar year.
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5.2 The guaranteed return under clause 5.1 above shall be paid by the
Vendor to the Purchaser on a half-yearly basis with a sum of
HK$1,367,481.50 ("HALF-YEARLY GUARANTEED RETURN") payable at the end of
each six (6) month period from the date of Completion of the Agreement
(i.e. on [14] March and [14] September of each year) in immediately
available funds by depositing such amount to a bank account to be
designated by the Purchaser from time to time, until and unless any of
the Options is exercised and completed, in which case clause 5.4 below
will apply.
5.3 In the event that the Vendor fails to pay any of the Half-yearly
Guaranteed Return due at the end of any such six (6) month period in
accordance with clause 5.1 above, the number of Option Shares shall be
reduced by 529,827 shares upon each time of such failure (and if such
Half-yearly Guaranteed Return is paid only in part, the number of
Option Shares shall be reduced on a basis pro rata to the ratio of the
unpaid amount as against the amount of the Half-yearly Guaranteed
Return).
5.4 In the event that completion of an exercise of an Option has taken
place in accordance with Clause 4, the Half-yearly Guaranteed Return
shall cease to accrue from the date of such Option Date on which
completion takes place and the Half-yearly Guaranteed Return shall be
calculated on a pro rata basis (based on the days elapsed until such
Option Date and on a 365 day year basis). Such pro rata amount of the
Half-yearly Guaranteed Return shall be payable by the Vendor to the
Purchaser simultaneously with completion of the exercise of the
relevant Option in a manner to be specified by the Purchaser.
6. CONTINUING EFFECT OF THIS AGREEMENT
6.1 This Agreement shall insofar as it remains to be performed continue in
full force and effect notwithstanding completion of the exercise of an
Option.
6.2 This Agreement shall be binding on and shall enure for the benefit of
the Vendor and the Purchaser and their respective successors in title
Provided that the benefits and obligations under this Deed cannot be
assigned by any party hereto without the other party's prior written
consent.
7. WHOLE AGREEMENT AND VARIATIONS
7.1 This Agreement, together with any documents referred to in it,
constitutes the whole agreement between the parties relating to its
subject matter and supersedes and extinguishes any prior drafts,
agreements, and undertakings, whether in writing or oral, relating to
such subject matter.
7.2 No variation of this Agreement shall be effective unless made in
writing and signed by each of the parties and/or the assignee of the
Purchaser (or any subsequent assignee thereof if such an assignment has
occurred pursuant to Clause 7 above).
7.3 Each party shall bear its own costs and expenses (including any stamp
duty or other levy, if any) arising out of or in connection with the
exercise and completion of the Options.
8. NOTICES
8.1 The provisions of Clause 14.12 of the Share Purchase Agreement shall
apply to this Agreement mutatis mutandis Provided that the Purchaser
shall be deemed to have the same address and other details as Asset
Managers Co., Ltd. in the Share Purchase Agreement.
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9. LAW AND JURISDICTION
9.1 HONG KONG LAW
This Agreement shall be governed by, and construed in accordance with
the laws of Hong Kong.
9.2 JURISDICTION
In relation to any legal action or proceedings to enforce this
Agreement or any matter or thing arising out of or in connection with
this Agreement ("Proceedings"), each of the parties hereto irrevocably
submits to the non-exclusive jurisdiction of the courts of Hong Kong
and waives any objection to Proceedings in such courts on the grounds
of venue or on the grounds that the Proceedings have been brought in an
inappropriate forum.
9.3 PROCESS AGENT
The provisions of Clause 15.3 of the Share Purchase Agreement shall
apply to this Agreement mutatis mutandis Provided that the provision
regarding Asset Managers Co., Ltd. therein shall be deemed to apply to
the Purchaser mutatis mutants.
IN WITNESS whereof the Agreement has been entered into the day and year first
above written.
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SCHEDULE 1
(1) (2) (3) (4)
OPTIONS OPTION SHARES OPTION DATE PURCHASE CONSIDERATION
First Option 7,307,948 5:00 p.m., 14 September 2005 US$2.581 per Option Share
Second Option 7,307,948 5:00 p.m., 14 September 2006 US$2.581 per Option Share
Third Option 7,307,948 5:00 p.m., 14 September 2007 US$2.581 per Option Share
SIGNED by )
)
)
for and on behalf of )
SINO-JP FUND CO., LTD. )
in the presence of: )
SIGNED by )
)
)
for and on behalf of )
PACIFIC ELECTRIC WIRE & CABLE CO., LTD )
in the presence of: )
