EXHIBIT D
SEPTEMBER 9TH, 2004
SINO-JP FUND CO., LTD.
and
SINO-JP ASSET MANAGEMENT CO., LTD.
INVESTMENT MANAGEMENT AGREEMENT
XXXXXX and XXXXXX
2
INVESTMENT MANAGEMENT AGREEMENT
THIS AGREEMENT is made on September 9th, 2004.
BETWEEN:
(A) SINO-JP FUND CO., LTD., a company incorporated under the laws of the
Cayman Islands whose registered office is at XX Xxx 000XX, Xxxxxx
Xxxxx, Xxxxx Church Street, Xxxxxx Town, Grand Cayman, Cayman Islands,
(the "COMPANY"); and
(B) SINO-JP ASSET MANAGEMENT CO., LTD., a company incorporated under the
laws of the Cayman Islands, whose registered office is at Scotia
Centre, 4th Floor, XX.Xxx 2804, Xxxxxx Town, Grand Cayman, Cayman
Islands (the "INVESTMENT MANAGER").
WHEREAS:
1 The Company has as its principal object to carry on business as an
investment company.
2 The Company wishes to appoint the Investment Manager to manage the
assets and investments of the Class B Sub-Fund and to implement the
investment policies and objectives of the Company in respect of the
Class B Sub-Fund on the terms and conditions set out herein.
IT IS AGREED as follows:
1 INTERPRETATION
1.1 In this investment management agreement (the "AGREEMENT") the following
words and expressions shall have the following meanings:
Affiliate means any employee, director or shareholder of
the Investment Manager;
Articles means the memorandum of association and the
articles of association of the Company as
amended from time to time;
Class B Sub-Fund means a sub-fund of the Company set up by the
directors of the Company pursuant to
resolutions passed at a board meeting held on
9 September 2004;
3
Delegate means any person, firm or company that the
Investment Manager may appoint to carry out
its duties under this Agreement;
Asia Pacific Wire & Cable means Asia Pacific Wire & Cable Corporation
Corporation Limited Limited, a company incorporated in Bermuda;
APWCC Shares means common stock in Asia Pacific Wire &
Cable Corporation Limited acquired by the
APWCC Shares ; and
Investment means the APWCC Shares or other asset of any
description the acquisition of which is
authorised under the investment policy of the
Class B Sub-Fund and is permitted within the
investment restrictions set out in the
Articles.
Subscription Price means the price paid by the Company to
subscribed the APWCC Shares which is equal to
USD 2.581 per share. The subscription price is
subject to adjustment due to stock dividend ,
stock split or any reorganization of APWCC.
1.2 In this Agreement:
1.2.1 any reference to a Recital, Clause or Schedule is to the
relevant Recital, Clause or Schedule of or to this Agreement
and any reference to a sub-clause or paragraph is to the
relevant sub-clause or paragraph of the Clause or Schedule in
which it appears;
1.2.2 the clause headings are included for convenience only and
shall not affect the interpretation of this Agreement;
1.2.3 the singular includes the plural and vice versa;
1.2.4 any gender includes the other genders;
1.2.5 any phrase introduced by the terms "including", "include", "in
particular" or any similar expression shall be construed as
illustrative and shall not limit the sense of the words
preceding those terms; and
1.2.6 references to any document or agreement are to be construed as
references to such document or agreement as is in force for
the time being and as amended, varied, supplemented,
substituted or novated from time to time.
2 APPOINTMENT OF INVESTMENT MANAGER
The Company hereby appoints the Investment Manager to be, and the Investment
Manager hereby agrees to act as, the investment manager to manage the assets and
investments of the Class B Sub-Fund on the terms and conditions set forth in
this Agreement.
4
3 DUTIES OF THE INVESTMENT MANAGER
3.1 During the term of this Agreement, the Investment Manager shall provide
investment management services to the Company in respect of the Class B
Sub-Fund in accordance with the investment objectives and policies and
subject to the investment restrictions described in the Articles. In
particular, the Investment Manager shall, in respect of the Class B
Sub-Fund:
3.1.1 review and evaluate the proposed asset acquisition and
investment strategies of the Company when required to do so by
the Company or as may be necessary from time to time;
3.1.2 execute, or cause to be executed, purchases and sales of
Investments on behalf of the Company as the Investment
Manager, in its discretion, deems to be in the best interests
of the Company;
3.1.3 carry out reviews of the Investments of the Company whenever
the Investment Manager shall deem it necessary, or when
required to do so by the Company;
3.1.4 recommend to the Company, the manner in which monies required
for the redemption or repurchase of Participating Shares or
for other purposes of the Company should be realised;
3.1.5 advise the Company as to the making of distributions by the
Company;
3.1.6 prepare material for inclusion in the annual and semi-annual
financial reports of the Company whenever the Company shall
properly require such material;
3.1.7 if required, advise with respect to the valuation of the
Investments; and
3.1.8 advise the Company as to the exercise of any rights attaching
to the Investments.
3.2 The Investment Manager may appoint Delegates to perform in whole or
part any of its duties or obligations upon such terms as to authority,
liability and indemnity as shall be determined by the Investment
Manager. The Investment Manager shall exercise due care and diligence
in such appointment and shall supervise the conduct of such Delegates.
3.3 In the absence of wilful default, fraud or negligence of the Investment
Manager in the appointment and supervision of the Delegates, the
Investment Manager shall not be liable to the Company for the acts and
omissions of such Delegates and shall be indemnified by the Company in
accordance with the terms of this Agreement.
3.4 The Investment Manager shall provide reasonable assistance to the
Company in the preparation of offering material, reports to investors
and regulatory filings including the provision, as promptly as may be
reasonably practicable, of any information regarding the Investment
Manager and its directors, officers and affiliates.
5
3.5 The Company, the directors, officers, employees and/or agents of the
Company shall have the right to have access to the Investment Manager's
offices in order to inspect and copy during normal business hours at
the Company's expense such books and records as are necessary to verify
the accuracy and completeness of the information provided by the
Investment Manager pursuant to sub-clause 3.4 or to verify compliance
with the terms of this Agreement subject to such restrictions as the
Investment Manager may reasonably deem necessary to preserve the
confidentiality of such information. This right of inspection shall
terminate upon the termination of this Agreement.
4 DISCRETIONARY AUTHORITY
4.1 Subject to the investment objectives and policies and
investment restrictions as set out in the Articles, to the
overall supervision of the Company and to the directions given
by the board of directors of the Company, the Investment
Manager shall have complete discretion in the investment and
reinvestment of the Investments with full power and authority
to make such purchases and sales, or to issue directly to a
broker or dealer, orders for such purchases and sales of
Investments.
4.2 The Investment Manager is authorised to maintain a cash
reserve of such amount as it may deem prudent and to invest
such cash reserve in any manner it determines in order to
reasonably preserve the Company's assets.
5 LIMITATIONS
In carrying out its duties, the Investment Manager shall at all times:
5.1 observe the investment objectives and policies and investment
restrictions set out in the Articles or as those objectives, policies
and restrictions are amended and from time to time communicated in
writing by the Company to the Investment Manager;
5.2 act within the scope of the borrowing restrictions set out in the
Articles; and
5.3 with regard to all matters, exercise such judgment which a prudent
manager of an investment portfolio would reasonably exercise in the
proper discharge of its duties.
6 DIRECTION AND COMPLIANCE
The board of directors of the Company may at any time give to the Investment
Manager written guidelines and/or directions relating to the Investments
generally or with regard to specific matters. In carrying out its duties, the
Investment Manager shall comply with such lawful and proper written guidelines
and/or directions as the board of directors of the Company may give from time to
time.
6
7 REPRESENTATIONS AND WARRANTIES
The Investment Manager represents and warrants to the Company that:
7.1 it is duly incorporated and in good standing under the laws of its
jurisdiction in which it is incorporated and has and will at all times
have the necessary power to enter into and perform its obligations
under this Agreement and has duly authorised the execution of this
Agreement;
7.2 this Agreement constitutes the legal, binding and enforceable
obligations of the Investment Manager;
7.3 the execution, delivery, observance and performance by the Investment
Manager of this Agreement will not result in any violation of any law,
statute, ordinance, rule or regulation applicable to it; and
7.4 it has obtained all the necessary authorisations and consents to enable
it to enter into this Agreement and to manage the Investments and the
necessary authorisation and consents will remain in full force and
effect at all times during the term of this Agreement.
8 POWER OF ATTORNEY
8.1 The Company hereby appoints the Investment Manager as its true and
lawful attorney (with full power to appoint substitutes and to
sub-delegate) on behalf of the Company and in the Company's own name or
otherwise, at any time and from time to time to:
8.1.1 sign, seal, deliver and complete all transfers, renunciations,
proxies, mandates, assignments, deeds and documents and do all
acts and things which the Company could do in relation to the
Investments; and
8.1.2 in the absolute discretion of the Investment Manager to vote
or abstain from voting in respect of any resolution at any
meeting held by a company, trust or limited partnership which
forms part of an Investment.
8.2 This power of attorney shall terminate with immediate effect upon the
termination of this Agreement for whatever reason, or upon receipt by
the Investment Manager of a notice to that effect from the Company.
9 FEES AND EXPENSES
9.1 The Company and the Investment Manager agree to observe the provisions
of the Option Agreement (the "OPTION AGREEMENT") dated September 15,
2004 between the
7
Company and Pacific Electric Wire & Cable Co., Ltd. relating to the
7,307,948 APWCC Shares.
9.2 The Company agrees that on each occasion that the Company receives a
payment of the Half-yearly Guaranteed Return (as defined in the Option
Agreement) pursuant to Clause 5 of the Option Agreement relating to the
7,307,948 APWCC Shares, the Company will be obliged to pay and the
Investment Manager will be entitled to receive from the Company an
amount equal to 20% of the Half-yearly Guaranteed Return.
9.3 If, on the sale of any part of 2,766,154 APWCC Shares, the selling
price per APWCC Shares exceeds the Subscription Price per APWCC Shares
paid by the Company on acquisition of the APWCC Shares, the Company
will obliged to pay and the Investment Manager will be entitled to
receive from the Company an amount equal to 20% of the proceeds exceeds
the Subscription Price. . If there is no profit following the sale of
the APWCC Shares, the Investment Manager acknowledges and agrees it
will not be entitled to claim any amount from the Company in respect of
the sale of the APWCC Shares.
10 CONFLICTS OF INTEREST
10.1 The Investment Manager may buy and sell Investments on its own account.
Nothing in this Agreement shall prevent the Investment Manager from
contracting or entering into any arrangement with the Company or any
other financial, commercial, advisory or other transactions with any
individual, firm, person or company, including investors in the Company
or any entity whose securities form any part of the Investments.
10.2 The services of the Investment Manager shall not be exclusive to the
Company, and the Investment Manager shall be free to render similar
services to other persons, firms or companies, so long as its services
to the Company are not impaired thereby, and to retain for its own use
and benefit all fees or other monies payable thereby. The Investment
Manager shall not be under any duty to disclose to the Company any fact
or matter which comes to the attention of the Investment Manager or any
employee or agent of the Investment Manager in the course of the
Investment Manager rendering similar services to others or in any
business or in any other capacity conducted by the Investment Manager
which is unrelated to the carrying out of its duties under this
Agreement.
10.3 The Investment Manager may have commercial relationships with entities
in respect of whose securities the Investment Manager may advise the
Company, or with respect to which entities the Investment Manager or
persons associated with the Company may be an officer or director.
10.4 Nothing in this Agreement shall preclude any director, officer or
employee of the Company or of the Investment Manager from acting in the
capacity of director, officer, employee or agent of the other.
8
10.5 Some securities considered for investment by the Company may also be
appropriate for other clients advised by the Investment Manager,
including Affiliates as well as other funds and for the Investment
Manager's own account. If the purchase or sale of securities consistent
with the Company's investment policies and one or more of these other
funds or clients advised by the Investment Manager or by an affiliate
are considered at or about the same time, the Investment Manager
undertakes that transactions in such securities will be allocated among
the several clients in a manner deemed fair and equitable by the
Investment Manager. These allocations may be advantageous or
disadvantageous to the Company.
11 NO PARTNERSHIP OR AGENCY
Nothing in this Agreement is intended to or shall operate to create a
partnership or joint venture of any kind between the parties, and save as is
otherwise set out in this Agreement neither party is authorised to act as agent
for the other and neither party shall have authority to act in the name or on
behalf of or otherwise to bind the other in any way (including but not limited
to the making of any representation nor warranty, the assumption of any
obligation or liability and the exercise of any right or power).
12 LIABILITY OF THE INVESTMENT MANAGER
12.1 The Investment Manager shall indemnify and hold harmless the Company
against all loss, costs, liabilities, obligations, claims, taxes,
penalties, fees and demands (including legal costs and expenses arising
there from or incidental thereto) which may be suffered or sustained by
or made against the Company resulting or arising in any way from a
breach of this Agreement or the fraud, negligence or wilful default by
the Investment Manager.
12.2 The Company shall indemnify the Investment Manager against actions,
costs, claims, damages, expenses or demands to which it may be put as a
result of its performance of its obligations under this Agreement, save
in respect of any actions, costs, claims, damages, expenses or demands
which results from any act or omission occasioned by the wilful
default, fraud or negligence of the Investment Manager.
12.3 If any third party makes a claim against, or notifies an intention to
make a claim against, the Investment Manager which may reasonably be
considered as likely to give rise to a liability under this indemnity
(a "relevant claim"), the Investment Manager shall:
12.3.1 as soon as reasonably practicable give written notice of that
matter to the Company, specifying in reasonable detail the
nature of the relevant claim;
12.3.2 not make any admission of liability, or come to any agreement
or compromise in relation to the relevant claim, without the
prior written consent of the Company (such consent not to be
unreasonably withheld or delayed);
9
12.3.3 give the Company and its professional advisers reasonable
access to the premises and personnel of the Investment Manager
and to any relevant assets, accounts, documents and records
within the power or control of the Investment Manager so as to
enable the Company and its professional advisers to examine
such premises, assets, accounts, documents and records and to
take copies at their own expense for the purpose of assessing
the merits of the relevant claim;
12.3.4 subject to the Company indemnifying the Investment Manager to
the Investment Manager's reasonable satisfaction against any
liability, costs, damages or expenses which may be incurred,
take such action as the Company may reasonably request to
avoid, dispute, resist, compromise or defend the relevant
claim.
13 TERMINATION
13.1 The Company may terminate the appointment of the Investment Manager:
13.1.1 if the Investment Manager shall commit any breach of its
obligations under this Agreement and shall fail, within ten
days of receipt of notice served by the Company requiring it
so to do, to make good such breach;
13.1.2 at any time by giving notice in writing to the Investment
Manager:
(a) if the Investment Manager goes into liquidation
(except a voluntary liquidation for the purpose of
reconstruction or amalgamation upon terms previously
approved in writing by the Company) or if a receiver
is appointed of any of the assets of the Investment
Manager or if the Investment makes or proposes any
arrangement or composition with its creditors or
class of creditors; or
(b) on the redemption of all of the Participating Shares.
13.2 The termination of the appointment of the Investment Manager under the
provisions of this Clause shall be without prejudice to any antecedent
liability of the Investment Manager. The Investment Manager shall be
entitled to receive all fees and other monies accrued due up to the
date of such termination but shall not be entitled to compensation in
respect of such termination.
13.3 The Investment Manager shall, on the termination of its appointment
under the provisions of this Clause, deliver to the Company all books,
registers, correspondence and records of the Company which are in its
possession.
10
14 CONFIDENTIALITY
The Investment Manager shall not disclose any information relating to
transactions under this Agreement or any information provided to the Investment
Manager by the Company relating to the Investments to any third party without
the Company's prior written consent. The Investment Manager may disclose
information if:
14.1 it is commercially customary to do so; or
14.2 if such disclosure is, in the reasonable opinion of the Investment
Manager necessary to carry out any transaction contemplated by this
Agreement; or
14.3 if such disclosure is required by any applicable law or in connection
with any litigation; or
14.4 such information is known to the recipient, or is generally available
at the time of disclosure.
15 ASSIGNMENT
Neither party shall without the prior written consent of the other party (such
consent not to be unreasonably withheld or delayed or subject to unreasonable
conditions) assign, transfer, charge or deal in any other manner with this
Agreement or any of its rights under it, or purport to do any of the same, nor
sub-contract any or all of its obligations under this Agreement. Each party is
entering into this Agreement for its benefit and not for the benefit of another
person.
16 ENTIRE AGREEMENT
This Agreement, and the documents referred to in it, constitutes the entire
agreement and understanding of the parties and supersedes any previous agreement
between the parties relating to the subject matter of this Agreement.
17 VARIATION
No variation of this Agreement or of any of the documents referred to in it
shall be valid unless it is in writing and signed by or on behalf of each of the
parties.
11
18 SEVERANCE
18.1 If any provision of this Agreement is found by any court or
administrative body of competent jurisdiction to be invalid or
unenforceable, such invalidity or unenforceability shall not affect the
other provisions of this Agreement which shall remain in full force and
effect.
18.2 If any provision of this Agreement is found to be invalid or
unenforceable but would be valid or enforceable if some part of the
provision were deleted, the provision in question shall apply with such
modification(s) as may be necessary to make it valid.
19 NOTICES
19.1 Any notice or other communication given under this Agreement shall be
in writing and signed by or on behalf of the party giving it and shall
be served by delivering it personally or sending it by pre-paid
recorded delivery or registered post or fax to the address and for the
attention of the relevant party set out in sub-clause 20.2 (or as
otherwise notified by that party hereunder). Any such notice shall be
deemed to have been received:
19.1.1 if delivered personally, at the time of delivery;
19.1.2 in the case of pre-paid recorded delivery or registered post,
48 hours from the date of posting;
19.1.3 in the case of registered airmail, five days from the date of
posting; and
19.1.4 in the case of fax, at the time of transmission.
Provided that if deemed receipt occurs before 9 a.m. on a Business Day
the notice shall be deemed to have been received at 9 a.m. on that day,
and if deemed receipt occurs after 5 p.m. on a Business Day, or on a
day which is not a Business Day, the notice shall be deemed to have
been received at 9 a.m. on the next Business Day. For the purpose of
this Clause, "Business Day" means any day which is not a Saturday, a
Sunday or a public holiday in the place at or which the notice is left
or sent.
19.2 The address and fax numbers of the parties for the purposes of
sub-clause 20.1 are:
Sino-JP Fund Co., Ltd.
Address: The Imperial Hotel Tower 17F
0-0-0, Xxxx-xxxxxxxxx
Xxxxxxx-xx
Xxxxx 000-0000
Xxxxx
12
For the attention of: Xx. Xxxxx Xxxxxxxx
Telephone: 00 0000 0000
SINO-JP ASSET MANAGEMENT CO., Ltd.
Address: Xxxx 000, Xxxx 0000
Xxxxxx Xx.0
Xxxxx Xxxx
Xxxxx Xxx Xxxx
Xxxxxxxx 000000
Xxxxx
For the attention of: Xx. Xxxxxx Sham
Fax number: 00 00 0000 0000
or such other or facsimile number as may be notified in writing from
time to time by the relevant party to the other party.
19.3 In proving such service it shall be sufficient to prove that the
envelope containing such notice was addressed to the address of the
relevant party set out in sub-clause 20.2 (or as otherwise notified by
that party hereunder) and delivered either to that address or into the
custody of the postal authorities as a pre-paid recorded delivery,
registered post or airmail letter, or that the notice was transmitted
by fax to the fax number of the relevant party set out in sub-clause
20.2 (or as otherwise notified by that party hereunder).
20 COUNTERPARTS
This Agreement may be executed in any number of counterparts, each of which,
when executed and delivered, shall be an original, and all the counterparts
together shall constitute one and the same instrument.
21 GOVERNING LAW AND JURISDICTION
21.1 This Agreement shall be governed by and construed in accordance with
the laws of the Cayman Islands.
21.2 Each party irrevocably agrees to submit to the non-exclusive
jurisdiction of the courts of the Cayman Islands over any claim or
matter arising under or in connection with this Agreement or the legal
relationship established by this Agreement.
13
22 LIMITED RECOURSE
Notwithstanding any other provisions in this Agreement, the Investment Manager
agrees that only the assets of the Company with respect to the Class B Sub-Fund
shall be available to satisfy the obligations of the Company under this
Agreement. The Investment Manager agrees that it shall have no recourse to the
assets of the Company other than with respect to the Class B Sub-Fund to satisfy
the obligations of the Company under this Agreement.
14
IN WITNESS WHEREOF the parties hereto have entered into this Agreement as a Deed
on the day and year first above written.
EXECUTED AS A DEED by )
)
)
------------------------------
duly authorised for )
and on behalf of )
SINO-JP FUND CO., LTD. )
in the presence of: )
)
------------------------------
EXECUTED AS A DEED by )
)
)
-----------------------------
duly authorised for )
and on behalf of )
SINO-JP ASSET MANAGEMENT )
CO., LTD. )
in the presence of: )
)
------------------------------
