Exhibit 4(vv)
DATED 14th MARCH, 2005
----------------------
(1) CHINA NETCOM GROUP CORPORATION (BVI) LIMITED
AND
(2) CHINA NETCOM CORPORATION (BVI) LIMITED
AND
(3) CHINA NETWORK COMMUNICATIONS GROUP CORPORATION
AND
(4) PCCW LIMITED
---------------------------------------------
DEED OF ASSIGNMENT
in relation to the Subscription Agreement
dated 19th January, 2005
---------------------------------------------
Xxxxxxxxx and May
00xx Xxxxx, Xxxxxxx Xxxxx
Xxx Xxxxxxxxx Xxxxx
Xxxxxxx, Xxxx Xxxx
(XXX/LHYY/VPM)
HK050320155
THIS DEED OF ASSIGNMENT is entered into on the day 14th of March, 2005
BETWEEN:-
(1) CHINA NETCOM GROUP CORPORATION (BVI) LIMITED, (the "Subscriber"), a company
incorporated in the British Virgin Islands and whose registered office is
at P.O. Box 3140, Wickhams Cay 1, Road Town, Tortola, British Virgin
Islands (Business registration number 341457); AND
(2) CHINA NETCOM CORPORATION (BVI) LIMITED, (the "Alternate Subscriber"), a
company incorporated in the British Virgin Islands and whose registered
office is at P.O. Box 3140, Wickhams Cay 1, Road Town, Tortola, British
Virgin Islands (Business registration number 637903);
AND
(3) CHINA NETWORK COMMUNICATIONS GROUP CORPORATION, ("China Netcom"), a
state-owned enterprise established under the laws of the People's Republic
of China and whose registered office is at Block C, No. 156 Fuxingmen Nei
Da Jie, Xi Cheng District, Beijing, People's Republic of China;
AND
(4) PCCW LIMITED, (the "Company"), a company incorporated in Hong Kong with
limited liability and whose registered office is at 00xx Xxxxx, XXXX Xxxxx,
XxxXxx Xxxxx, 979 King's Road, Quarry Bay, Hong Kong.
WHEREAS:-
(A) The Subscriber, the Company and China Netcom entered into a Subscription
Agreement dated 19th January, 2005 pursuant to which the Subscriber
conditionally agreed to subscribe for 1,343,571,766 new Shares in the
Company at a price of HK$5.90 per Share (the "Subscription Shares").
(B) Clause 4.4 of the Subscription Agreement entitles the Subscriber to assign
all of its rights under the Subscription Agreement (including the right to
subscribe for and be issued and allotted the Subscription Shares at
completion of the Subscription and the rights and benefit of and to the
Company Warranties) to a company which is wholly-owned by the Subscriber.
(C) The Subscriber wishes to assign its rights, title and interest in, to and
under the Subscription Agreement to the Alternate Subscriber. The Alternate
Subscriber is wholly-owned by the Subscriber, which in turn is wholly-owned
by China Netcom.
2
NOW IT IS AGREED as follows:-
2. DEFINITIONS AND INTERPRETATION
2.1 In this Deed (including the Recitals):-
(A) capitalised words used but not defined in this Deed shall bear the
meanings given to them in the Subscription Agreement; and
(B) rules of construction and interpretation set out in the Subscription
Agreement shall apply to this Deed.
2.2 In this Deed, unless otherwise specified:-
(A) references to clauses and sub-clauses are to clauses and sub-clauses
of this Deed; and
(B) headings to clauses and schedules are for convenience only and do not
affect the interpretation of this Deed.
3. ASSIGNMENT
3.1 With effect from the date of this Deed and in consideration of the
undertakings given by the Alternate Subscriber in clause 4 and the Company
in clause 5, the Subscriber hereby assigns all of its rights, title and
interest in, to and under the Subscription Agreement to the Alternate
Subscriber including:-
(A) the right to subscribe for the Subscription Shares at the Subscription
Price, free from Encumbrances on the terms and subject to the
conditions set out in the Subscription Agreement;
(B) the benefit of the Company Warranties and all other undertakings given
by the Company to the Subscriber under the Subscription Agreement.
3.2 Notwithstanding the provisions of sub-clause 3.1 and any other provision of
this Deed, the Subscriber agrees that it shall remain liable for any breach
by it of the Subscription Agreement, and shall remain bound to perform and
comply with all its covenants, undertakings and obligations under the
Subscription Agreement in the event of breach of the Subscription Agreement
by the Alternate Subscriber (including, without limitation, the obligation
to subscribe for and pay for the Subscription Shares).
4. ALTERNATE SUBSCRIBER'S UNDERTAKINGS
4.1 With effect from the date of this Deed and in consideration of the
undertakings given by the Company in clause 5 and the Subscriber in clause
6, the Alternate Subscriber hereby undertakes to observe, perform,
discharge and be bound by the Subscription Agreement as if it were a party
to the Subscription Agreement in the place of the Subscriber (including,
without limitation, the obligation to subscribe for and pay for the
Subscription Shares).
3
4.2 Notwithstanding the provisions of sub-clause 4.1, nothing in this Deed
shall:-
(A) require the Alternate Subscriber to perform any obligation of the
Subscriber created by or arising under the Subscription Agreement
falling due for performance, or which should have been performed,
before the date of this Deed; or
(B) make the Alternate Subscriber liable for any act, neglect, default or
omission in respect of the Subscription Agreement committed by the
Subscriber or occurring before the date of this Deed.
5. THE COMPANY'S UNDERTAKINGS
5.1 With effect from the date of this Deed and in consideration of the
undertakings given by the Alternate Subscriber in clause 4 and the
Subscriber in clause 6, the Company hereby:-
(A) confirms its consent to and approval of the assignment of the
Subscriber's rights, title and interest in, to and under the
Subscription Agreement to the Alternate Subscriber pursuant to clause
3 above;
(B) accepts the Alternate Subscriber's undertaking to observe, perform,
discharge and be bound by the Subscription Agreement pursuant to
clause 4 above;
(C) confirms that it has received the requisite written notice required
pursuant to clause 4.4 (B) of the Subscription Agreement; and
(D) agrees to observe, perform, discharge and be bound by the Subscription
Agreement as if the Alternate Subscriber were a party to and executed
the Subscription Agreement in the place of the Subscriber, including,
without limitation, undertaking to issue the Subscription Shares to
the Alternate Subscriber (rather than the Subscriber), but subject to
the other terms and conditions of the Subscription Agreement.
5.2 Notwithstanding the provisions of sub-clause 5.1:-
(A) nothing in this Deed shall affect or prejudice any claim or demand
whatsoever which the Company may have against the Subscriber in
relation to the Subscription Agreement; and
(B) nothing in this Deed shall affect or prejudice any claim or demand
whatsoever which the Company may have against the Subscriber under the
Subscription Agreement in the event that the Alternate Subscriber is
in breach of its obligations under this Deed and/or the Subscription
Agreement (including, without limitation, the obligation to subscribe
for and pay for the Subscription Shares).
4
6. REPRESENTATIONS, WARRANTIES AND UNDERTAKINGS OF THE SUBSCRIBER AND THE
ALTERNATE SUBSCRIBER
6.1 Subscriber
The Subscriber hereby undertakes, represents and warrants to the Company as
follows:-
(A) It is the legal and beneficial owner of the whole of the issued share
capital of the Alternate Subscriber.
(B) China Netcom is the legal and beneficial owner of the whole of the
issued share capital of the Subscriber, and the Subscriber is the
legal and beneficial owner of all the issued shares in CNC HK held by
the CNC Group.
6.2 Alternate Subscriber
The Alternate Subscriber hereby undertakes, represents and warrants to the
Company:-
(A) As at the date of this Deed it has (subject to the obtaining by China
Netcom of the approval of the PRC State Council), and on the
Completion Date it will have, the full right, power and authority to
enter into, and to perform its obligations under, this Deed and this
Deed constitutes its legal, valid and binding obligations enforceable
in accordance with its terms.
(B) As at the date of this Deed it has (subject to the obtaining by China
Netcom of the approval of the PRC State Council), and on the
Completion Date it will have, obtained all governmental, regulatory or
similar consents required from any Authority, authorities, approvals
and permissions required to enter into, and to perform its obligations
under, this Deed and there are no regulatory or administrative
obstacles to the remittance of the Subscription monies to the Company
in Hong Kong in accordance with the terms of this Deed and the
Subscription Agreement.
(C) The Subscriber is the legal and beneficial owner of the whole of the
issued share capital of the Alternate Subscriber, and no person has
any outstanding warrant, option, pre-emptive right or any other right
of any description to require shares to be allotted or issued by the
Alternate Subscriber.
(D) The execution, delivery and performance by it of this Deed does not
and will not result in a material breach of any provision in its
memorandum or articles of association or other constitutional
documents.
(E) No order has been made and no resolution has been passed for the
winding up of the Alternate Subscriber or for a provisional liquidator
to be appointed in respect of it and no petition has been presented
and no meeting has been convened for the purposes of winding up the
Alternate Subscriber.
5
(F) No administration order has been made and no petition for such an
order has been presented in respect of the Alternate Subscriber.
(G) No receiver (which expression shall include an administrative
receiver) has been appointed in respect of the Alternate Subscriber.
(H) The Alternate Subscriber is not insolvent or unable to pay its debts
and has not stopped paying its debts as they fall due.
(I) No event analogous to any described in paragraphs (E) to (H) has
occurred in or outside the British Virgin Islands with respect to the
Alternate Subscriber.
(J) Under the laws of the British Virgin Islands, neither the Alternate
Subscriber nor any of its properties, assets or revenues are entitled
to any right of immunity on the grounds of sovereignty from any legal
action, suit or proceedings, from set-off or counter claim, from the
jurisdiction of any court or arbitral tribunal, from service of
process, from attachment prior to or in aid of execution of judgment
or arbitral award, or from other legal process or proceedings for the
giving of any relief or for the enforcement of any judgment or
arbitral award.
(K) Neither the Alternate Subscriber nor any of its directors or Principal
Officers, is a Disqualified Person.
6.3 Repetition of Subscriber/Alternate Subscriber Warranties, etc
(A) The representations and warranties set out in clauses 6.1 and 6.2 are
given as at the date hereof and shall be deemed to be repeated by the
Subscriber and the Alternate Subscriber respectively on the Completion
Date as if given or made on such date, with reference in each case to
the facts and circumstances then subsisting.
(B) Each of the Subscriber and the Alternate Subscriber undertakes to
disclose in writing to the Company anything which will be or is
reasonably likely to be a breach of any of the representations and
warranties set out in clauses 6.1 and 6.2 on and as at the Completion
Date promptly after such thing comes to its notice both prior to and
on the Completion Date. Each of the Subscriber and the Alternate
Subscriber agrees promptly to provide such information as may be
reasonably requested by the Company, from the date hereof until the
Completion Date, in order to enable the Company to assess whether a
breach of any representations and warranties set out in clauses 6.1
and 6.2 will occur on the Completion Date.
7. CHINA NETCOM GUARANTEE
7.1 Guarantee Obligations
In consideration of the Company entering into this Deed at the request of
China Netcom (as China Netcom hereby acknowledges), China Netcom shall as
primary obligations of it:
6
(A) procure that the Alternate Subscriber shall duly observe and perform
all its obligations owed to the Company under this Deed and the
Subscription Agreement or any other agreement entered pursuant or
ancillary to such documents;
(B) if and whenever the Alternate Subscriber shall be in default in the
payment when due of any amount payable to the Company under this Deed
and/or the Subscription Agreement or any other agreement entered into
pursuant or ancillary to such documents and within two Business Days
after being given notice to that effect by the Company, pay to the
Company all amounts then so payable by the Alternate Subscriber to the
Company as though China Netcom instead of the Alternate Subscriber was
expressed to be the principal debtor; and
(C) indemnify the Company against all costs and expenses (including legal
fees) which the Company may pay or incur in collecting any amount
payable by the Alternate Subscriber or China Netcom and referred to in
clause 7.1(B).
7.2 Indemnity
Any amount not paid by the Alternate Subscriber and not recoverable from
China Netcom on the basis of a guarantee (whether because of any legal
limitation, disability or incapacity on the part of the Alternate
Subscriber or any other matter or thing whether known to the Company or
not) shall nevertheless be recoverable from China Netcom on the basis of an
indemnity.
7.3 Indulgence etc.
(A) China Netcom acknowledges that its liability under this clause 7 shall
not be discharged or affected in any way by time being given to the
Alternate Subscriber or by any other indulgence or concession being
granted to the Alternate Subscriber or by any other act, omission,
dealing, matter or thing whatsoever (including without limitation any
change in the constitution of the Alternate Subscriber or China
Netcom, any amendment to this Deed and/or the Subscription Agreement
or any such other agreement entered pursuant or ancillary hereto or
the liquidation, dissolution, reconstruction or amalgamation of the
Alternate Subscriber or China Netcom or the illegality or
unenforceability of this Deed or such other agreement) which but for
this provision might operate to release China Netcom from its
obligations under this clause 7.
(B) China Netcom acknowledges and agrees that its liability under clause
10 of the Subscription Agreement shall not be discharged or affected
in any way by the assignment by the Subscriber of its rights, title
and interest in, to and under the Subscription Agreement to the
Alternate Subscriber pursuant to this Deed.
7.4 Continuing Guarantee
The guarantee contained in this clause 7 is a continuing guarantee and
shall remain in full force and effect until all obligations of the
Alternate Subscriber hereby guaranteed
7
have been discharged in full. It is in addition to and shall not prejudice
nor be prejudiced by any other guarantee, indemnity or other security or
right against any third party which the Company may have for the due
performance of the obligations concerned.
8. WAIVER OF IMMUNITY
8.1 Immunity
It is acknowledged that the status of China Netcom in the PRC may afford it
certain protections and immunities not available to entities wholly
independent of any state body in the PRC and China Netcom has therefore
agreed to waive such protections and immunities as set out below.
8.2 Waiver
China Netcom irrevocably and unconditionally agrees with the Company that
in respect of any proceedings brought against China Netcom or its assets by
the Company in relation to this Deed or any other agreement entered into
pursuant to or as a result of this Deed:
(A) no immunity from those proceedings (including, without limitation,
suit, attachment prior to judgement, other attachment, the obtaining
of any judgement, execution or other enforcement, or the enforcement
and execution of any award rendered by an arbitral tribunal
constituted pursuant to this Deed) will be claimed by or on behalf of
itself or with respect to its assets;
(B) China Netcom shall (and hereby) waives any such right of immunity
which it or its assets now has or may subsequently acquire; and
(C) China Netcom consents generally in respect of any such proceedings to
the giving of any relief or the issue of any process in connection
with those proceedings, including, without limitation, the making,
enforcement or execution against any assets whatsoever (irrespective
of its use or intended use) of any order or judgement which may be
made or given in those proceedings or of any award rendered by an
arbitral tribunal constituted pursuant to this Deed.
9. CHOICE OF GOVERNING LAW
9.1 This Deed shall be governed by and construed in accordance with the laws of
England for the time being in force.
10. ARBITRATION
10.1 Any dispute, controversy or claim arising out of or in connection with this
Deed, including any question regarding its existence, validity or
termination, shall be referred to and finally resolved by arbitration under
the LCIA Rules, which Rules are deemed to be incorporated by reference into
this clause. The arbitration commission shall be the LCIA.
10.2 The number of arbitrators shall be three.
8
10.3 The seat of the arbitration shall be London.
10.4 The language to be used in the arbitral proceedings shall be English.
10.5 By agreeing to arbitration pursuant to this clause, the Parties waive
irrevocably their right to any form of appeal, review or recourse to any
state court or other judicial authority, insofar as such waiver may validly
be made. In particular, no Party may apply to the court to determine any
question of law arising in the course of the arbitration pursuant to
section 45 of the Arbitration Xxx 0000 or otherwise, and no Party may
appeal to the court on a question of law arising out of an award made in
the arbitration pursuant to section 69 of the Arbitration Xxx 0000 or
otherwise.
10.6 The Parties shall have the right to seek interim injunctive relief from a
court of competent jurisdiction, both before and after the arbitrators have
been appointed, at any time up until the arbitrators have made the final
award.
11. CONTRACTS (RIGHTS OF THIRD PARTIES) XXX 0000
11.1 No person who is not for the time being a Party to this Deed shall have any
right under the Contracts (Rights of Third Parties) Xxx 0000 to enforce any
term of this Deed.
12. COUNTERPARTS
12.1 This Deed may be executed in any number of counterparts, which shall
together constitute one deed. Any Party may enter into this Deed by signing
any such counterpart.
13. WHOLE AGREEMENT
13.1 This Deed, 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, except to the
extent that the same are repeated in this Deed.
13.2 Each of the Parties acknowledges that it has not been induced to enter into
this Deed by any representation, warranty, promise or assurance by any of
the others or any other person save for those contained in this Deed.
14. VARIATIONS
14.1 No variation of this Deed shall be effective unless made in writing and
signed by each of the Parties to this Deed.
14.2 No variation of the Subscription Agreement after the execution of this Deed
shall be effective unless made in writing and signed by each of the Parties
to this Deed.
14.3 The Company, the Subscriber and China Netcom each undertake and confirm to
each other and to the Alternate Subscriber that there has been no variation
or amendment of the Subscription Agreement (whether oral, written or
otherwise) prior to the execution
9
this Deed, and each of them agree and acknowledge that the Subscription
Agreement in the form annexed to this Deed and marked "A" for the purposes
of identification constitutes the whole and only agreement between them
relating to the subscription of, and issue and allotment of the
Subscription Shares.
15. FURTHER ASSURANCE
15.1 At any time after the Completion Date every Party hereto shall, at the
request of any other Party and at such requesting Party's cost, execute or
procure the execution of such documents and do or procure the doing of such
acts and things as the requesting Party may reasonably require for the
purpose of vesting in the requesting Party or its permitted assignees the
full benefit of all its rights in this Deed.
16. COSTS
16.1 Each Party shall bear its own costs arising out of or in connection with
the preparation, negotiation and implementation of this Deed.
17. DEED BINDING AND ASSIGNMENT
17.1 This Deed shall be binding on and enure for the benefit of each Party's
respective successors and permitted assigns. No Party shall assign any of
its rights under this Deed (all of which shall be incapable of assignment)
or purport to do so without the prior written consent of the other Parties.
18. WAIVER
18.1 No failure or delay by any Party 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. 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.
19. INVALIDITY AND SEVERANCE
19.1 If any provision of this Deed shall be held to be illegal, void, invalid or
unenforceable under the laws of any jurisdiction, the legality, validity
and enforceability of the remainder of this Deed in that jurisdiction shall
not be affected, and the legality, validity and enforceability of the whole
of this Deed in any other jurisdiction shall not be affected.
20. NOTICES
20.1 Any notice (which term shall in this clause include any other
communication) required to be given under this Deed or in connection with
the matters contemplated by it shall, except where otherwise specifically
provided, be in writing in the English language.
20.2 Any such notice shall be addressed as provided in sub-clause 20.3 and may
be:
10
(A) personally delivered, in which case it shall be deemed to have been
given upon delivery at the relevant address; or
(B) if within Hong Kong, sent by pre-paid post, in which case it shall be
deemed to have been given two Business Days after the date of posting;
or
(C) if from or to any place outside Hong Kong, sent by pre-paid airmail,
in which case it shall be deemed to have been given seven Business
Days after the date of posting; or
(D) sent by facsimile, in which case it shall be deemed to have been given
when despatched, subject to confirmation of uninterrupted transmission
by a transmission report provided that any notice despatched by
facsimile after 5:00 p.m. on any day shall be deemed to have been
received at 9:00 a.m. on the next Business Day.
20.3 The addresses and other details of the Parties referred to in sub-clause
20.2 are, subject to sub-clause 20.4:
If to the Subscriber, the Alternate Subscriber or China Netcom, to:
China Netcom Group Corporation (BVI) Limited
59/F, Bank of Xxxxx Xxxxx,
0 Xxxxxx Xxxx,
Xxxx Xxxx
Facsimile: x000 0000 0000
Attention: Wang Chuanbao
If to the Company, to:
PCCW Limited
00xx Xxxxx, XXXX Xxxxx,
XxxXxx Xxxxx,
000 Xxxx'x Xxxx,
Xxxxxx Xxx,
Xxxx Xxxx
Facsimile: x000 0000 0000
Attention: The Company Secretary
20.4 Any Party may notify the other Parties of any change to the address or any
of the other details specified in sub-clause 20.3, provided that such
notification shall only be effective on the date specified in such notice
or five Business Days after the notice is given, whichever is later.
11
IN WITNESS WHEREOF this Deed has been duly executed as a deed by the parties on
the date first above written.
EXECUTED as a Deed by )
CHINA NETCOM GROUP CORPORATION )
(BVI) LIMITED )
was affixed in the presence of:- )
EXECUTED as a Deed by )
CHINA NETCOM CORPORATION )
(BVI) LIMITED )
in the presence of:- )
EXECUTED as a Deed by )
CHINA NETWORK COMMUNICATIONS )
GROUP CORPORATION )
in the presence of:- )
The Common Seal of )
PCCW LIMITED )
was affixed in the presence of:- )
HK050320155
