EXHIBIT NUMBER 4(a)5
CONTRACT FOR PLACING AND SUBSCRIPTION OF 3,660 MILLION SHARES OF WING ON
THIS AGREEMENT is dated 30th November, 2004 and made
BETWEEN:
1. CHINA ENTERPRISES LIMITED, a company incorporated in Bermuda and whose
principal place of business in Hong Kong is situated at 8th Floor, Xxxx X.
Centre, 00 Xxxx Xx Xxxx, Xxxx Xxxx, Xxxxxxx, Xxxx Xxxx (the "Vendor");
2. WING ON TRAVEL (HOLDINGS) LIMITED, a company incorporated in Bermuda and
whose principal place of business in Hong Kong is situated at 7th Floor,
Xxxx X. Centre, 00 Xxxx Xx Xxxx, Xxxx Xxxx, Xxxxxxx, Xxxx Xxxx (the
"COMPANY");
3. DEUTSCHE BANK AG, HONG KONG BRANCH, whose principal place of business in
Hong Kong is at 55th Floor, Xxxxxx Kong Center, 0 Xxxxx'x Xxxx Xxxxxxx,
Xxxx Xxxx (the "Placing Agent").
WHEREAS:
(A) the Vendor has agreed to appoint the Placing Agent as placing agent for
the purpose of procuring, as agent of the Vendor, purchasers for the
Placing Shares (as defined below) on the terms and subject to the
conditions set out in this Agreement;
(B) the Vendor (together with persons acting in concert with it and its
associates) is the beneficial owner of 8,650 million Shares and the Vendor
has agreed to sell 3,660 million Shares on the terms and subject to the
conditions set out in this Agreement; and
(C) the Company has agreed to issue, and the Vendor 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 (including the Introduction):
"Associates" the meaning given to that term in the Listing
Rules;
"Audited Accounts Date" 31st December, 2003;
"Business Day" any day (excluding a Saturday) on which
banks generally are open for business in Hong
Kong;
"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);
"Completion" completion of the Placing in accordance with
Clause 4;
"Conversion Price" initially HK$0.02 per Conversion Share
(subject to adjustments);
"Conversion Shares" the Shares which fall to be issued upon
the exercise of conversion rights attached to
the Convertible Note;
"Convertible Note" HK$260 million convertible note issued by the
Company on 14th June, 2004 of which a principal
amount of HK$55,000,000 is outstanding as at the
date of this Agreement, and convertible into
Conversion Shares at the Conversion Price;
"Group" the Company and its Subsidiaries and the expression "member of the
Group" shall be construed accordingly;
"HK$" Hong Kong currency;
"Hong Kong" the Hong Kong Special Administrative
Region of the People's Republic of China;
"Interim Accounts Date" 30th June, 2004;
"Listing Rules" the Rules Governing the Listing of Securities
on The Stock Exchange of Hong Kong Limited;
"Other Placing Agreement" the meaning ascribed thereto in Clause 2.7;
"Placee" any institutional investor procured by the
Placing Agent to purchase any of the Placing
Shares pursuant to the Placing Agent's
obligations hereunder;
"Placing" the offer by way of a private placing of the
Placing Shares procured by the Placing Agent to
select investors on the terms and subject to the
conditions
set out in this Agreement;
"Placing Announcement" the press announcement in the agreed form
proposed to be issued by the Company in
substantially such form immediately following
the execution of this Agreement;
"Placing Completion Date" 3rd December, 2004 or such other date as the
Vendor and the Placing Agent shall agree;
"Placing Period" the period commencing upon the execution of this
Agreement and terminating at 5:00 p.m. on the
Business Day prior to the Placing Completion
Date, unless terminated earlier pursuant to the
terms of this Agreement;
"Placing Price" the price of HK$0.028 per Placing Share;
"Placing Shares" 3,660 million Shares;
"Proceedings" any legal action or proceedings in connection
with this Agreement;
"Regulation D" Regulation D under the US Securities Act;
"Regulation S" Regulation S under the US Securities Act;
"Rule 144A" Rule 144A under the US Securities Act;
"Shares" fully paid ordinary shares of HK$0.01 in the
capital of the Company;
"SFC" the Securities and Futures Commission of Hong
Kong;
"Stock Exchange" The Stock Exchange of Hong Kong Limited;
"Subscription" the subscription by the Vendor for the
Subscription Shares on the terms and subject to
the conditions set out in this Agreement;
"Subscription Completion the Business Day after the date upon which the
Date" last of the conditions set out in Clause
6.2 shall have been satisfied provided that the
Subscription Completion Date shall not be later
than the date falling 14 days after the date of
this Agreement or such later time and/or date as
the Company and the Vendor may agree in writing;
"Subscription Completion" the meaning given to that term in Clause 6.5;
"Subscription Price" HK$0.028 per Subscription Share;
"Subscription Shares" 3,660 million new Shares;
"Subsidiary" has the same meaning as in Section 2 of the
Companies Ordinance;
"Takeovers Code" Hong Kong Code on Takeovers and Mergers;
"Transfer Documents" has the meaning given to it in Clause 4.1;
"United States" has the meaning given in Regulation S;
"US Exchange Act" the United States Securities Exchange Act of
1934, as amended; 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 Vendor and the Placing Agent with (in the
case of a draft) such alterations (if any) as may be agreed between the
Vendor and the Placing Agent.
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. APPOINTMENT OF PLACING AGENT
2.1 Appointment: The Vendor hereby agrees to appoint the Placing Agent and the
Placing Agent, relying on the representations, warranties and undertakings
herein contained, agrees to act as the placing agent for the Vendor in
connection with the Placing on the terms provided for in this Agreement.
2.2 Placing Agent's powers: The Vendor hereby confirms that this appointment
confers on the Placing Agent, in accordance with the provisions hereof,
all powers, authorities and discretion on behalf of the Vendor which are
necessary for, or reasonably incidental to, the Placing (including,
without limiting the foregoing and if necessary, the completion of the
relevant contract notes on behalf of the Vendor and the submission of such
contract notes and other documents for stamping and registration) and
hereby agrees to ratify and confirm everything which the Placing Agent may
lawfully, reasonably and properly do in the exercise of such powers,
authorities and discretion in accordance with this Agreement.
2.3 Sub-placing agents: The Placing Agent may in turn appoint other
sub-placing agents to procure purchasers for the Placing Shares. The
Placing Agent confirms and undertakes that it shall require any
sub-placing agent or other person through whom it may affect the Placing
or offer any Placing Shares to observe the provisions of this Agreement.
Any transaction legally, properly and reasonably carried out by the
Placing Agent (and any sub-placing agent) shall constitute a transaction
carried out at the request of the Vendor and as its agent and not in
respect of the Placing Agent's own account.
2.4 Information: The Vendor and the Company shall:
(a) provide to the Placing Agent, at its reasonable request, with all
such information known to it or which on reasonable enquiry ought to
be known to it and relating to the Group as may be reasonably
required by the Placing Agent in connection with the Placing for the
purposes of complying with all requirements of applicable law or of
the Stock Exchange or of the SFC; and
(b) promptly provide to the Placing Agent particulars of every
significant new factor known to it which is in their reasonable
opinion capable of materially affecting assessment of the Placing
Shares in the context of the Placing which arises between the date
hereof and 12:00 noon on the Placing Completion Date.
2.5 Free from encumbrances: The Vendor shall sell the Placing Shares to be
sold pursuant to the Placing free from all liens, charges and encumbrances
and together with a rights attaching to them, including the right to
receive all dividends declared, made or paid after the date hereof.
2.6 Further assurances: The Vendor undertakes with the Placing Agent that it
shall do all such other acts and things as may be reasonably required to
be done by it to carry into effect the Placing in accordance with the
terms of this Agreement.
2.7 The Other Placing Agreement: The parties hereto hereby acknowledge that on
even date, the parties hereto have entered into an agreement for the
placing by the Placing Agent on a fully underwritten basis up to 2,340
million existing Shares and the subscription by the Vendor of such number
of new Shares as is equal to the number of Shares placed under that
agreement (the "Other Placing Agreement"). The parties hereto hereby agree
that all Shares placed by the Placing Agent on behalf of the Vendor shall
be deemed to be Shares placed under this Agreement (up to a maximum number
of the Placing Shares) and thereafter, under the Other Placing Agreement.
Similarly, any allotment and issue of new Shares by the Company to the
Vendor shall first be made to satisfy obligations of the Company to issue
Subscription Shares under this Agreement.
3. PLACING AGENT'S UNDERTAKINGS
3.1 Placing: The Placing Agent undertakes on or before the end of the Placing
Period to procure purchasers for, or failing which to purchase itself, all
of the Placing Shares at the Placing Price (together with such Hong Kong
stamp duty and Stock Exchange transaction levy as may be payable by
buyers).
3.2 Placees: The Placing Shares shall be offered by the Placing Agent to the
Placees in board lots of the Shares. The choice of Placees for the Placing
Shares shall be determined solely by the Placing Agent, subject to the
requirements of the Listing Rules (in particular, the Placing Agent shall
use all reasonable endeavours to ensure that Placees shall be parties
independent of the Vendor and the Company and the connected persons (as
defined in the Listing Rules) of the Company and shall not be parties
acting in concert with the Vendor for the purposes of the Vendor for the
purposes of the Takeovers Code). If there should be less than six Placees,
the Placing Agent shall procure that all necessary consents are obtained
from the Placees for the publication of their identities as required by
paragraph 13.28 of the Listing Rules, and shall use its best endeavours to
ensure that such information is available for incorporation in the Placing
Announcement so that no separate or further announcement is required to be
made by the Company in respect thereof. Notwithstanding the above, at any
time the Placing Agent may elect that some or all of the Placing Shares
are purchased by it as principal from the Vendor at the Placing Price and,
in that event, the Placing Shares may subsequently be sold by the Placing
Agent as principal to purchasers at any price(s) as the Placing Agent in
its discretion may determine, without being under any obligation to notify
the Vendor of such election or of the number of Placing Shares so
purchased as principal, or of the price(s) at which those Shares are sold
to purchasers provided that any stamp duty payable in respect of such sale
by the Placing Agent as principal shall be borne by the Placing Agent.
3.3 Placee details and Transfer Documents: Without prejudice to the Placing
Agent's rights under Clause 8.1, to the extent any transfer of Placing
Shares will not be settled by book-entry settlement through CCASS, by no
later than 6:00 p.m. on the Business Day prior to the Placing Completion
Date, the Placing Agent shall deliver to the Vendor a schedule showing
details of the Placees including their names, the number of Placing Shares
purchased by each Placee, country of incorporation (if a corporation),
addresses (or registered address if a corporation), and as soon as
practicable thereafter and in any event not later than 12:00 noon on the
fourth Business Day thereafter deliver to the Stock Exchange and the SFC
such substantially completed details of the Placees in the form from time
to time prescribed by them.
3.4 Oral contracts: Without limitation to Clause 3.5, the Placing Agent
undertakes that the Placing shall be affected by telephone conversations
leading to concluded contracts which shall then be confirmed by letter of
confirmation.
3.5 Compliance with laws: The Placing Agent confirms and undertakes to the
Vendor and the Company that :
(a) it will not, directly or indirectly, engage in price stabilisation
in relation to the Placing;
(b) it will not, directly or indirectly, offer, sell or deliver any
Placing Shares or distribute or publish any documents (including,
without limitation, any prospectus, form of application, offering
circular, advertisement or other offering material or any report or
other document calculated to invite or lead to offers or agreements
being made to purchase Placing Shares) in any country or
jurisdiction except such as, and under circumstances that, will not
result in or constitute a material breach by it of any applicable
laws and regulations provided that this will not apply where the
breach arises, directly or indirectly, by reason of (i) a breach by
the Vendor or by the Company of a representation, warranty or
undertaking in Clause 7.1 or (ii) any public written information or
statements or omissions of the Vendor or the Company;
(c) it has not offered or sold and will not offer or sell in Hong Kong,
by means of any document, any Placing Shares other than to persons
whose ordinary business it is to buy or sell shares or debentures,
whether as principal or as agent, or otherwise in circumstances
which do not constitute an offer to the public within the meaning of
such term as used in the Companies Ordinance (Cap. 32 of the laws of
Hong Kong);
(d) (i) it has not offered or sold and, prior to the expiry of the
period of six months from the Placing Completion Date, will not
offer or sell any Placing Shares to persons in the United Kingdom
except to persons whose ordinary activities involve them in
acquiring, holding, managing or disposing of investments (as
principal or agent) for the purposes of their businesses or
otherwise in circumstances which have not resulted and will not
result in an offer to the public in the United Kingdom within the
meaning of the Public Offers of Securities Regulations 1995; (ii) it
has only communicated or caused to be communicated and will only
communicate or cause to be communicated any invitation or inducement
to engage in investment activity (within the meaning of section 21
of the Financial Services and Markets Act 2000 (the "FSMA"))
relating to the Placing Shares in circumstances in which section
21(1) of the FSMA does not apply; and (iii) it has complied and will
comply with all applicable provisions of the FSMA with respect to
anything done or to be done by it in relation to the Placing Shares
in, from or otherwise involving the United Kingdom;
(e) (i) it acknowledges that the Placing Shares have not been and will
not be registered under the US Securities Act, and have not been and
may not be offered or sold except pursuant to an exemption from, or
in a transaction not subject to, the registration requirements of
the US Securities Act; it has not offered or sold, and will not
offer or sell, any Placing Shares outside the United States except
in offshore transactions (as defined in Regulation S) in accordance
with Rule 903 of Regulation S or, within the United States to a
limited number of investors who sign a placing letter; accordingly,
neither it, its affiliates nor any persons acting on its or their
behalf have engaged or will engage in any directed selling efforts
(as such term is defined in Regulation S) with respect to the
Placing Shares or any Shares; and neither it nor any person acting
on its behalf has made or will make offers or sales of the Placing
Shares in the United States by any form of general solicitation or
general advertising (within the meaning of Regulation D under the US
Securities Act) in the United States; and (ii) it will offer or sell
the Placing Shares (A) as part of their distribution at any time, or
(B) otherwise until 40 days after the later of the commencement of
the offering of the Placing Shares and the Placing Completion Date,
only in accordance with Rule 903 of Regulation S under the US
Securities Act or to a limited number of investors who sign a
placing letter in connection with this Placing and, at or prior to
the
confirmation of a sale of the Placing Shares, it will have sent to
each distributor, dealer or person receiving a selling concession,
fee or other remuneration that purchases Placing Shares from it or
through it during the restricted period (other than to investors who
sign a placing letter in connection with this Placing) a
confirmation or other notice setting forth the restrictions on
offers and sales of Placing Shares within the United States or to,
or for the account or benefit, of U.S. persons.
3.6 No representations: The Placing Agent confirms and undertakes that it has
not made and shall not make to any person to whom Placing Shares may be
offered any representation or statement regarding the Company, the Group
or the financial or business position or prospects of the Company or the
Group which was not or is not, at the time of making the same, general
public knowledge in the marketplace.
4. COMPLETION
4.1 Vendor's obligations: By no later than 12:00 noon on the Business Day
prior to the Placing Completion Date, the Vendor shall deliver to the
Placing Agent to facilitate settlement on the Placing Completion Date,
evidence satisfactory to the Placing Agent that the Vendor has given an
irrevocable delivery instruction to effect a book-entry settlement of the
Placing Shares through CCASS to credit to the CCASS stock account of the
Placing Agent, which the Placing Agent shall have notified the Vendor on
the date of this Agreement.
4.2 Placing Agent's obligations: Against compliance by the Vendor with its
obligations under Clause 4.1 and subject to Clause 8, the Placing Agent
(or its nominees or agents) shall, in respect of the Placing Shares on or
before 4:00 p.m. on the Placing Completion Date make or procure the making
of payments to the Vendor in cleared funds in Hong Kong dollars of the
aggregate Placing Price of the Placing Shares (less the amounts referred
to in Clause 5.1), the payment of which shall constitute a complete
discharge of the obligations of the Placing Agent to place the Placing
Shares hereunder and such payment shall be made for value on the Placing
Completion Date to such bank account held with a bank in Hong Kong as may
be notified by the Vendor to the Placing Agent no later than 12:00 noon
one Business Day before Placing Completion Date.
5. PAYMENT OF FEES COMMISSIONS AND EXPENSES
5.1 Placing Agent fees and expenses: In consideration of the services of the
Placing Agent in relation to the Placing, the Vendor shall pay to the
Placing Agent:
(a) provided that completion of the Placing occurs in accordance with
Clause 4, in Hong Kong dollars a placing fee of 3.6 per cent. of the
amount equal to the Placing Price multiplied by the number of the
Placing Shares;
(b) Hong Kong seller's ad valorem stamp duty (if any) at the relevant
rate on the amount equal to the
Placing Price multiplied by the number of Placing Shares;
(c) seller's Stock Exchange trading levy, SFC transaction levy and
investor compensation levy, if any, and fixed stamp duty on the
instrument of transfer as may be payable in respect of the sale and
transfer of the Placing Shares to the Placees,
which amounts the Placing Agent is hereby authorised to deduct from the
payments to be made by it to the Vendor pursuant to Clause 4.2(a).
5.2 Placing not completed: If for any reason (other than any breach by the
Placing Agent of its obligations hereunder) this Agreement is terminated
or the Placing is not completed, the Vendor shall remain liable for the
payment of all costs and expenses referred to in Clause 5.1(b) and (c)
only to the extent already incurred.
5.3 Brokerage: The Vendor hereby acknowledges that, in addition to the
commissions, costs, charges and expenses referred to in Clause 5.1, the
Placing Agent shall be entitled to keep for its own account any brokerage
that it may receive from the Placees.
5.4 No deductions: All payments to be made by the Vendor pursuant to this
Clause 5 shall be made in full without any set-off, deduction or
withholding whatsoever.
6. SUBSCRIPTION
6.1 Subscription: subject to the fulfilment of the conditions set out in
Clause 6.2, the Vendor 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.
6.2 Conditions: Completion of the Subscription is conditional upon:
(a) the Stock Exchange granting listing of and permission to deal in the
Subscription Shares; and
(b) completion of the Placing having occurred pursuant to the terms of
this Agreement.
6.3 Fulfilment: The Company and the Vendor shall each use their respective
reasonable endeavours to procure the fulfilment of the conditions set out
in Clause 6.2 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.
6.4 Non-Fulfilment: If the conditions set out in Clause 6.2 are not fulfilled
on or prior to 14th December, 2004, or such later date as may be agreed in
writing between the Company and the Vendor, the obligations of the Company
and the Vendor under this Clause 6 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.
6.5 Completion: Subject to the fulfillment of the conditions set out in Clause
6.2, 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
Vendor may agree (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 Vendor or its nominee the Subscription
Shares and shall promptly thereafter register the Vendor or
its nominee as the holder of the Subscription Shares and shall
cause to be delivered to the Vendor definitive certificates of
title in respect of the Subscription Shares in the name of the
Vendor or its nominee; and
(ii) deliver to the Vendor certified copies of the resolutions of
the board of directors of the Company allotting the
Subscription Shares pursuant to Clause 6.5(a)(i); and
(b) the Vendor 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 (if any) in connection with the
Placing and the Subscription to the bank account nominated for the
purpose by the Company (such nomination being made) not less than
one Business Day prior to the Subscription Completion Date) or in
such other manner as may be agreed between the parties, which shall
constitute a complete discharge of the Vendor's obligations in
respect thereof.
7. WARRANTIES AND UNDERTAKINGS
7.1 Warranties: In consideration of the Placing Agent entering into this
Agreement and agreeing to perform its obligations hereunder, each of the
Vendor and the Company (except in respect of matters which relate only the
Vendor on which the Company gives no warranty) hereby represents, warrants
and undertakes to the Placing Agent as follows:
(a) Million Good Limited, a wholly-owned subsidiary of the Vendor is the
beneficial owner of the Placing Shares and the Vendor has the
necessary power and authority and has obtained all necessary
consents to enable it to sell or procure the sale of the Placing
Shares hereunder and this Agreement constitutes valid and legally
binding and enforceable obligations of the Vendor;
(b) the Placing Shares are fully paid up, rank pari passu in all
respects with the existing Shares in issue, include the right to
receive all dividends and distributions which may be declared made
or paid after the Placing Completion Date and are free and clear of
all liens, encumbrances, equities or other third party rights;
(c) all statements of fact contained in the Placing Announcement are
true and accurate in all material respects and not misleading in any
material respect in the context of 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 or
which is otherwise material in the context of the Placing;
(d) each member of the Group is duly incorporated and validly existing
under the laws of the place of its incorporation with power to own
its assets and to conduct its business in the manner presently
conducted and there has been no petition filed, order made or
effective resolution passed for the liquidation or winding up of any
member of the Group which is material to the operations and results
of the Group taken as a whole;
(e) save as previously disclosed by the Company to the public in writing
during the preceding twelve months, there is no litigation,
arbitration or other legal proceedings in progress or pending
against any member of the Group which if decided adversely to the
relevant member of the Group would have or have had during the
twelve months preceding the date hereof a material adverse effect on
the financial position of the Group (taken as a whole) or the
Company and which is material in the context of the Placing;
(f) save as previously disclosed by the Company to the public in writing
during the preceding twelve months, the Company is not in breach in
any material respect in the context of the Placing, of any rules,
regulations or requirements of the Stock Exchange or any applicable
law, decree, judgment, legislation, order, regulation, statute,
ordinance, treaty or other legislative measure;
(g) no material outstanding indebtedness of any member of the Group has
become payable or repayable by reason of any default of such member
of the Group and no event has occurred which, with the lapse of time
or the fulfilment of any condition or the giving of notice or the
compliance with any formality, may result in such indebtedness
becoming payable or repayable prior to its maturity date or in a
demand being made for such indebtedness to be paid or repaid;
(h) save as previously disclosed by the Company to the public in writing
during the preceding twelve months or otherwise than in the ordinary
course of business, no member of the Group has entered into a
material contract or commitment of an unusual or onerous nature
which, in the context of the Placing, might be material for
disclosure and each such company has carried on its business in the
ordinary and usual course;
(i) the audited consolidated accounts of the Group for the financial
year ended on the Audited Accounts Date:
(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 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 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 Group was then or might at any time
thereafter become or have been liable;
(j) the interim accounts of the Group for the period ended on the
Interim Accounts Date:
(i) have been properly prepared and fairly present and reflect in
accordance with generally accepted accounting principles,
standards and practice in Hong Kong;
(ii) comply on all material aspects with all applicable ordinances,
statutes and regulations and reflect a true and correct view
of the state of affairs of the Group and of its results for
the period in question;
(k) since the Interim Accounts Date:
(i) each member of the Group has carried on business in the
ordinary and usual course in all material respects so as to
maintain it as a going concern;
(ii) each member of the Group has continued to pay its creditors in
the ordinary course of business in all material respects;
(iii) there has been no material adverse change in the condition,
financial or otherwise, or the earnings, business affairs or
business prospects (whether or not arising in the ordinary
course of business) of any member of the Group and no event
has occurred which in the reasonable opinion of the Vendor or
the Company may give rise to a material adverse change in such
position in the foreseeable future;
(l) there is no order, decree or judgment of any court or governmental
agency or regulatory body outstanding or anticipated against any
member of the Group nor, to the best of the knowledge, information
and belief of the Vendor, having made due and careful enquiries, is
there any investigation or enquiry by any governmental agency or
regulatory body outstanding or
anticipated against any member of the Group which may have or has
had a material adverse effect upon the condition, financial or
otherwise or the earnings, business affairs or business prospects
(whether or not arising in the ordinary course of business) of the
Group or which is material in the context of the Placing;
(m) save as publicly announced by the Company prior to the date hereof
or pursuant to options granted or hereafter to be granted under the
share option scheme of the Company, no person has the right (whether
exercisable now or in the future and whether contingent or not) to
call for the allotment, conversion, issue, sale or transfer of any
share or loan capital or any other security giving rise to a right
over the capital of any member of the Group under any option or
other agreement (including conversion rights and rights of
pre-emption) and there are no encumbrances on the shares of any
member of the Group or any arrangements or obligations to create any
encumbrances; and
(n) the execution and delivery of, and the performance by the Vendor and
the Company of their respective obligations under this Agreement do
not and will not, and this Agreement does not and will not:
(i) result in a breach in any material respect of any provision of
the articles of association of any member of the Group; or
(ii) result in a breach in any material respect of, or constitute a
default under, any instrument to which any member of the Group
is a party or by which any member of the Group or any of their
respective properties is bound; or
(iii) result in a breach in any material respect of any laws to
which any member of the Group are subject or by which any
member of the Group or any of their respective properties are
bound; or
(iv) infringe any mortgage, contract or other undertaking or
instrument to which any member of the Group is a party or
which is binding upon it or its assets, and does not and will
not result in the creation of imposition of any encumbrance on
any of its assets pursuant to the provisions of any such
mortgage, contract or other undertaking or instrument;
(o) (i) none of the Company nor the Vendor nor any of its or their
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 provided that
this representation and warranty shall, to the extent that it
relates only to actions of the Vendor or its affiliates, be given
only by the Vendor; (ii) the Vendor, the Company, their 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;
(p) neither the Company nor the Vendor nor any of its or their
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 provided that this representation and
warranty shall, to the extent that it relates only to actions of the
Vendor or its affiliates, be given only by the Vendor; neither the
Company nor the Vendor nor any of its or their 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 this
representation and warranty shall, to the extent that it relates
only to actions of the Vendor or its affiliates, be given only by
the Vendor;
(q) the Company is not 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 face-amount
certificate company that is required to be registered under Section
8 of such Act;
(r) each of the Vendor and the Company will promptly provide the Placing
Agent, at its reasonable request, with all such information known to
it or which on reasonable enquiry ought to be known to it relating
to the Group or the Vendor as may be required by the Placing Agent
in connection with the Placing for the purpose of complying with any
applicable law, regulation or direction (including the establishment
of any defence to any action under any of the same, whether relating
to due diligence or otherwise) or any requirement of the Stock
Exchange, the SFC or any other applicable regulatory body;
(s) the Vendor shall ensure that none of its Associates shall purchase
the Placing Shares under the Placing;
(t) the Vendor has not been, is not and shall not be at any time engage
in insider dealing for the purposes of the Securities and Futures
Ordinance in connection with the Placing and the related
transactions entered into pursuant to this Agreement, neither the
Vendor nor any person acting on the Vendor's behalf or under its
control has taken or shall take, directly or indirectly, any action
designed or which was designed, or which constitutes or has
constituted or might reasonable be or have been expected to cause or
result in, stabilization or manipulation of the price of any Shares
or other securities of the Company;
(u) the Vendor and the Company shall make all appropriate disclosures
pursuant to, and shall comply in all respects with, the Listing
Rules, the Takeovers Code, the Securities and Futures Ordinance and
all other applicable laws and regulations in connection with the
Placing; and
(v) subject to completion of the Subscription, the Company has
sufficient financial resources to satisfy the payment of the balance
of the purchase price for the proposed acquisition of a 34.24%
attributable interest in Kingsway Hotel Limited described in the
announcement of the Company dated 24th November, 2004.
7.2 Warranties repeated: The representations and warranties set out in Clause
7 are given as at the date hereof and shall be deemed to be repeated by
Vendor and the Company as at the Placing Completion Date as if given or
made at such time, with reference in each case to the facts and
circumstances then subsisting. The Vendor undertakes up to and until
completion of this Agreement or its earlier termination to notify the
Placing Agent of any matter or event coming to its attention prior to the
Placing 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 7.1 untrue, inaccurate or misleading in any material
respect. The Vendor and the Company shall not, and shall use their
respective best endeavours to procure that no member of the Group shall,
at any time prior to or on the Placing Completion Date do or omit to do
anything which may cause any of the representation and warranties made by
it and set out in Clause 7.1 to be untrue in any material respect.
7.3 Indemnity: Each of the Vendor and the Company undertakes on demand to
indemnify the Placing Agent or any person appointed as a sub-placing agent
pursuant to Clause 2.3 or any of their respective associates (as defined
in the Listing Rules) and any of their respective directors and employees
which shall have been involved in effecting the Placing (the "Indemnified
Parties") against all or any claims, actions, liabilities, demands,
proceedings or judgments brought or established against any of the
Indemnified Parties by any purchaser of any of the Placing Shares or by
any governmental agency, regulatory body or other person, directly or
indirectly arising out of or in connection with the Placing and against
all losses and all reasonable costs, charges and expenses (including legal
fees as they are incurred) which any of the Indemnified Parties may suffer
or properly incur (except for any loss, costs, charge or expense suffered
or incurred directly or indirectly as a result of or in connection with
any fraud, default or negligence on the part of the relevant Indemnified
Party or as a result of any breach of any provisions of this Agreement by
the relevant Indemnified Party) (including, but not limited to, all such
losses, costs charges or expenses suffered or incurred in disputing or
defending any Proceedings ).
7.4 No claims: No claim shall be made against the Placing Agent or any person,
appointed as a sub-placing agent pursuant to Clause 2.3 by the Vendor or
the Company to recover any damage, cost, charge or expense which the
Vendor or (as the case may be) the Company may suffer or incur by reason
of or arising from the carrying out by the Placing Agent of the work to be
done by it pursuant hereto or the performance of its obligations hereunder
or otherwise in connection with the Placing provided that such damage,
cost, charge or expense is not suffered or incurred directly or indirectly
as a result of any fraud, default or negligence on the part of the Placing
Agent or in connection with a breach by the Placing Agent of the
provisions of this Agreement.
7.5 No merger: The foregoing provisions of this Clause 7 shall remain in full
force and effect notwithstanding completion of the Placing.
7.6 Undertaking by the Vendor: The Vendor 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.
7.7 Moratorium: Each of the Vendor and the Company agrees that it will not,
prior to the expiry of 90 days following the Placing Completion Date,
offer, issue, allot, sell or otherwise dispose of any other Shares or any
securities convertible into or exchangeable or carrying rights to acquire
other shares of the Company, or enter into any derivative transaction that
has the economic effect of such sale, transfer or disposition, whether
settled in cash or otherwise, without the prior written consent of the
Placing Agent, provided that none of the foregoing shall prevent the
Company from issuing options, rights or Shares pursuant to the Company's
Share Option Scheme or upon conversion of the Convertible Note.
8. TERMINATION
8.1 Termination: Notwithstanding anything contained in this Agreement, if, at
any time prior to 12:00 noon on the Placing Completion Date, in the
reasonable opinion of the Placing Agent the success of the Placing or the
business or financial prospects of the Group would or might be materially
adversely affected by:
(a) any material breach of any of the representations and warranties set
out in Clause 7.1; or
(b) any of the following events:
(i) the introduction of any new law or regulation or any change in
existing laws or regulations or change in the interpretation
or application thereof; or
(ii) the occurrence of any event, development or change (whether or
not local, national or international or forming part of a
series of events or changes occurring or continuing before, on
and/or after the date hereof and including an event or change
in relation to or a development of an existing state of
affairs) of a political, military, industrial, financial,
economic or other nature, whether or not sui generis with any
of the foregoing, resulting in a material adverse change in,
or which might be expected to result in a material adverse
change in, political, economic or stock market conditions; or
(iii) the imposition of any moratorium, suspension or material
restriction on trading in securities generally on the Stock
Exchange occurring due to exceptional financial circumstances
or otherwise; or
(iv) a change or development involving a prospective change in
taxation in Hong Kong or the People's Republic of China or the
implementation of exchange controls which shall or might
materially and adversely affect the Company or its present or
prospective shareholders in their capacity as such; or
(v) any material change or deterioration in the conditions of
local, national or international securities markets occurs,
then and in any such case, the Placing Agent may terminate this Agreement
without liability to the Vendor by giving notice in writing to the Vendor,
provided that such notice is received prior to 12:00 noon on the Placing
Completion Date.
8.2 Termination: In the event that the Placing Agent terminates this Agreement
pursuant to Clause 8.1 it shall as soon as practicable thereafter return
to the Vendor all Placing Shares received by it pursuant to Clause 4.1 (i)
by crediting the CCASS account of the Vendor (as notified by the Vendor to
the Placing Agent) or (ii) at the option of the Vendor, by returning share
certificates in respect of the Placing Shares to the Vendor at the
Vendor's cost, and subject thereto all obligations of each of the Parties
under this Agreement, save for Clauses 5 and 7, shall cease and determine
and no Party shall have any claim against any other Party in respect of
any matter arising out of or in connection with this Agreement except for
any breach arising prior to such termination.
9. GENERAL
9.1 Announcements: Save for the Placing Announcement and save as required by
law or by the Stock Exchange or the SFC, the Vendor 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 Placing shall be made by or on behalf of the Company
between the date hereof and the Placing Completion Date without prior
written approval from the Placing Agent as to the content, timing and
manner of making thereof, such approval not to be unreasonably withheld or
delayed.
9.2 Time of the essence: Any time, date or period mentioned in this Agreement
may be extended by mutual agreement between the Vendor and the Placing
Agent 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.
9.3 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.
9.4 Assignment: The Placing Agent may assign to any person or persons the
benefit of the representations, warranties and undertakings contained
herein (in whole or in part). No other party hereto shall assign any of
its rights under this Agreement (all of which shall be incapable of
assignment) or purport to do so. This Agreement shall be binding on and
enure for the benefit of each party's successors and permitted assigns.
9.5 Counterparts: This Agreement may be executed in any number of counterparts
by the Parties 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.
10. NOTICES
10.1 Notices: All notices delivered hereunder shall be in writing in the
English language and shall be communicated to the following addresses :-
If to the Vendor :
8th Floor, Xxxx X. Centre
00 Xxxx Xx Xxxx
Xxxx Xxxx
Xxxxxxx
Xxxx Xxxx
Facsimile : 852 2537 6591
Attention : The Board of directors
If to the Company :
7th Floor, Xxxx X. Centre
00 Xxxx Xx Xxxx
Xxxx Xxxx
Xxxxxxx
Xxxx Xxxx
Facsimile : 852 2542 0298
Attention : Xxxxxxx Xxx
If to the Placing Agent :
00xx Xxxxx, Xxxxxx Xxxx Xxxxxx
0 Xxxxx'x Xxxx Xxxxxxx
Xxxx Xxxx
Facsimile : (000) 0000 0000
Attention : Xxx Xxxx
10.2 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.
11. GOVERNING LAW
11.1 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.
11.2 Vendor's service agent: The Vendor irrevocably appoints Treasureway
Services Limited of 8th Floor, Xxxx X. Centre, 00 Xxxx Xx Xxxx, Xxxx Xxxx,
Xxxxxxx, 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 Vendor irrevocably agrees to appoint a
substitute process agent with an address in Hong Kong acceptable to the
Placing Agent and to deliver to the Placing Agent a copy of the substitute
process agent's acceptance of that appointment within 30 days. In the
event that the Vendor fails to appoint a substitute process agent, it
shall be effective service for the Placing Agent to serve the process upon
the last known address in Hong Kong of the last known process agent for
that Vendor notified to the Placing Agent notwithstanding that such
process agent is no longer found at such address or has ceased to act
provided that a copy of the proceedings is also sent to that the Vendor'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 )
)
for and on behalf of )
CHINA ENTERPRISES LIMITED )
in the presence of )
SIGNED BY )
)
for and on behalf of )
WING ON TRAVEL (HOLDINGS) )
LIMITED )
in the presence of )
SIGNED BY )
)
and )
)
for and on behalf of )
DEUTSCHE BANK AG, )
HONG KONG BRANCH )
in the presence of )
