EXHIBIT 4(ee)
SIGNING DRAFT:- 17 JULY 2003
PLACING AGREEMENT
RELATING TO SHARES OF
PCCW LIMITED
DATED 17th July, 2003
PACIFIC CENTURY REGIONAL DEVELOPMENTS LIMITED
PCCW LIMITED
and
CITIGROUP GLOBAL MARKETS ASIA LIMITED
XXXXX & XXXXX
Hong Kong
CONTENTS
Clause Page
1. Interpretation......................................................1
2. Placing Obligations and Option Shares...............................1
3. Appointment of the Placing Agent and the Placing....................2
4. Completion..........................................................3
5. Commission and Expenses.............................................3
6. Warranties and Indemnity............................................4
7. Conditions..........................................................5
8. Restrictions........................................................6
9. Announcements.......................................................8
10. Subscription Agreement..............................................8
11. Time................................................................8
12. Costs...............................................................8
13. Notices.............................................................8
14. Governing Law.......................................................9
Schedules
1. Interpretation.....................................................11
2. Selling Restrictions...............................................14
3. Completion Mechanics...............................................16
4. Representations and Warranties.....................................17
5. Details of the Vendors and the Placing Shares......................21
Signatories.................................................................10
THIS PLACING AGREEMENT is made on 17th July, 2003
BETWEEN:
(1) PACIFIC CENTURY REGIONAL DEVELOPMENTS LIMITED and the other VENDORS
(if any) named in Part A of Schedule 5 (the Vendors);
(2) PCCW LIMITED of 00xx Xxxxx, XXXX Xxxxx, XxxXxx Xxxxx, 000 Xxxx'x
Xxxx, Xxxxxx Xxx, Xxxx Xxxx (the Company); and
(3) CITIGROUP GLOBAL MARKETS ASIA LIMITED of 00xx Xxxxx, Xxxxx Xxxxxxxx
Xxxxxx, Xxxxxxx, Xxxx Xxxx (the Placing Agent)
WHEREAS:
(A) The Company is incorporated with limited liability under the Companies
Ordinance (Cap. 32 of the laws of Hong Kong) and has an authorised
share capital of HK$1,600,000,000 divided into 6,400,000,000 shares of
HK$0.25 each ("Shares") of which 4,653,754,074 Shares have been issued
and are fully paid and all of which are listed on the Stock Exchange;
(B) The Vendors are the beneficial owners of 1,526,773,302 Shares, the
registered holder or holders of certain of which are set out in
Schedule 5; and
(C) The Placing Agent, in reliance upon the representations, warranties
and undertakings of the Vendor and the Company contained herein, has
agreed, as agent of the respective Vendors, to procure purchasers for
or failing which itself as principal to purchase a total of
715,000,000 Shares owned by the Vendors, upon the terms and subject to
the conditions set out in this Agreement.
NOW IT IS HEREBY AGREED as follows:
1. INTERPRETATION
This Agreement will be interpreted in accordance with the provisions
of Schedule 1.
2. PLACING OBLIGATIONS AND OPTION SHARES
2.1 Firm Placing Shares: The Vendors agree to sell, or procure the sale
of, the Firm Placing Shares and the Placing Agent agrees, as agent of
the respective Vendors, to procure Placees to purchase, or failing
which itself as principal to purchase, the Firm Placing Shares on the
terms and subject to the conditions set out in this Agreement.
2.2 Option Shares: If a number of Option Shares is stipulated in Schedule
5, then the Vendors unconditionally and irrevocably grant to the
Placing Agent the right to require the Vendors to sell, or to procure
the sale of, an additional number of Shares up to (but not exceeding)
the number of Option Shares so stipulated in Schedule 5.
2.3 Option exercise notice: The Option shall be exercisable at any time
and on any one or more occasions (up to an aggregate number of Shares
equal to the number of Option Shares) by written notice given by the
Placing Agent to the Company no later than the Option Expiry Time.
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2.4 Option Shares are Placing Shares: Any Option Shares stipulated in a
notice given by the Placing Agent under Clause 2.3 shall become
Placing Shares and all the provisions of this Agreement applicable to
the Placing Shares shall apply to such Shares.
2.5 Election: At any time the Placing Agent may elect that some or all of
the Placing Shares are purchased by it as principal from the Vendors
at the Placing Price and, in that event, the Placing Shares may be on
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 Vendors of such election or of the
number of Placing Shares so purchased as principal, other than in
accordance with the provisions of this Agreement, or of the price(s)
at which those Shares are sold to purchasers.
2.6 Not less than 6 Placees: Having regard to the Listing Rules, the
Placing Agent will endeavour to ensure that the Placing Shares are
placed with not less than 6 different Placees (but without affecting
any right or obligation of the Placing Agent to purchase Placing
Shares as principal).
2.7 Obligations of Vendors: Each of the Vendors shall sell the number of
Firm Placing Shares set out against its respective name in paragraph
2 of Part B of Schedule 5. To the extent the Option is exercised, the
Option Shares shall be made available and sold by the Vendors in the
same respective proportions as the Firm Placing Shares. The Placing
Agent shall have no obligation to proceed to Completion unless all
the Vendors comply fully with their obligations to sell Placing
Shares. Subject to the foregoing, and save as provided in Clause 5.5,
all obligations of the Vendors under this Agreement are joint and
several (but without prejudice to anything separately agreed among
the Vendors for allocation of obligations and/or resulting
liabilities among themselves). If only one Vendor is named in
Schedule 5 then all references to Vendors shall be to that sole
Vendor and provisions relating to several Vendors shall be construed
accordingly.
3. APPOINTMENT OF THE PLACING AGENT AND THE PLACING
3.1 Appointment: Each of the Vendors hereby appoints the Placing Agent to
the exclusion of all others as its agent to procure Placees to
purchase the Placing Shares on the terms and subject to the
conditions set out in this Agreement and the Placing Agent, relying
on the representations, warranties and undertakings on the part of
the Vendors and the Company contained herein, accepts such
appointment on the terms and subject to the conditions set out in
this Agreement. Subject as specifically provided in this Agreement,
any transaction carried out by the Placing Agent pursuant to this
Agreement (other than any purchase by the Placing Agent of Placing
Shares as principal) shall constitute a transaction carried out at
the request of the Vendors and as their agent and not on account of
or for the Placing Agent. The Placing Agent shall not be responsible
for any loss or damage to any party in connection with the Placing
(save and except, in the case of the Vendor and the Company, for any
loss or damage arising out of any gross negligence, wilful default or
fraud on the part of the Placing Agent).
3.2 Authority: Each of the Vendors hereby confirms that the foregoing
appointment confers on the Placing Agent in accordance with the
provisions hereof all powers, authorities and discretions on its
behalf which are necessary for, or reasonably incidental to, the
Placing (including the power and authority to delegate its functions
hereunder to any other person or persons to act as agent or agents of
the Placing Agent), and hereby agrees to ratify and confirm
everything which the Placing Agent shall lawfully do or have done
pursuant to or in anticipation of such appointment, powers,
authorities and discretions. Each of the Vendors agrees, promptly on
request by the Placing Agent, to execute or do, or procure that there
shall be executed and done, all such documents and things as the
Placing Agent acting reasonably may deem necessary for such purposes.
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3.3 Placing: The Placing Shares shall be offered by the Placing Agent as
agent for the Vendors at the Placing Price (together with such Hong
Kong stamp duty, Stock Exchange trading fee, SFC transaction levy and
investor compensation levy and brokerage as may be payable by
placees) during the Placing Period, subject to Clause 2. The offer of
the Placing Shares to Placees by the Placing Agent shall be
conditional upon this Agreement not having been terminated prior to
Completion.
3.4 Clear title: The Vendors shall sell or procure the sale of the
Placing Shares to be sold pursuant to the Placing free and clear of
all Liens and together with all rights attaching thereto at the date
hereof, including the right to receive all dividends or other
distributions declared, made or paid on the Placing Shares at any
time after the date hereof.
3.5 Selling restrictions: The Placing Agent confirms and undertakes to
the Vendor that it will use all reasonable endeavours to comply with
the selling restrictions and other provisions set out in Schedule 2.
3.6 Stock Exchange: The Placing Agent may select brokers of its choice to
report the transaction to the Stock Exchange and to effect the
transaction on the Stock Exchange as a crossing on the Stock
Exchange.
3.7 Cooperation: The Placing Agent will, to the extent that it may
reasonably do so, cooperate with the Company and the Vendors to
assist the Company and the Vendors to comply with any applicable law,
regulation or direction of the Stock Exchange, the SFC or any other
applicable regulatory body in connection with the Placing.
4. COMPLETION
4.1 CCASS deposit: To the extent (if any) that the Placing Shares are not
already deposited and held in CCASS, each of the Vendors will, no
later than 12:00 noon on the date of this Agreement (or such other
time and date agreed between the parties) deliver to the Placing
Agent for deposit into CCASS a number of Shares at least equal to the
maximum total number of Firm Placing Shares and Option Shares which
may be required to be sold by it under this Agreement, and will
provide to the Placing Agent all such further documents and
authorities as may be necessary or desirable to enable the Placing
Agent on behalf of such Vendor to effect transfer and settlement of
the Placing Shares at Completion as required and contemplated by
Clause 4.2 and Schedule 3..
4.2 Completion: Completion will take place on each relevant Closing Date
in accordance with the provisions of Schedule 3.
4.3 Clear title on delivery: The Vendors shall procure that all Placing
Shares delivered at Completion in accordance with the preceding
provisions of this Clause 4 shall comply in all respects with Clause
3.4.
5. COMMISSION AND EXPENSES
5.1 Commission: In consideration of the services of the Placing Agent in
relation to the Placing, the Vendors shall pay the Placing Agent an
underwriting commission equal to:
(a) 2.0 per cent. of the aggregate Reference Price of the Placing
Shares; plus
(b) an amount equal to one-half of the amount by which the aggregate
Placing Price exceeds the aggregate Reference Price.
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The Placing Agent is hereby authorised to deduct such commission from
the payments to be made by it to the Vendors pursuant to paragraph 2
of Schedule 3. The Placing Agent shall be entitled to retain any and
all such brokerage as may be charged to and received from Placees.
5.2 Placing expenses: In addition to the commission referred to in Clause
5.1: (a) the Vendors will pay all Hong Kong seller's ad valorem stamp
duty, fixed duty on the instruments of transfer, seller's Stock
Exchange trading fee and SFC transaction levy and investor
compensation levy as may be payable in respect of the sale of the
Placing Shares to the Placees and to the Placing Agent, which amounts
the Placing Agent is hereby authorised to deduct from the payments to
be made by it to the Vendors pursuant to paragraph 2 of Schedule 3
for the purposes of paying the same on the Vendors' behalf; and (b)
whether or not the Placing is completed, the Vendors will bear all
legal and out-of-pocket expenses incurred by the Placing Agent in
relation to the Placing which, if ascertained at the Closing Date,
the Placing Agent is hereby authorised to deduct from the payment to
be made by it to the Vendors pursuant to paragraph 2 of Schedule 3.
5.3 Other expenses: As between them and the Placing Agent, the Vendors
and the Company shall be liable for the costs and expenses of their
own legal and other professional advisers and their own out-of-pocket
expenses incurred in connection with the Placing. In the case of the
Company, this includes (for the avoidance of doubt) all printing
and/or advertising costs relating to the Placing and, in the case of
the Vendors, this includes (for the avoidance of doubt) any and all
costs incurred in connection with the depositing of Placing Shares
into CCASS in accordance with Clause 4.1 and any seller's
registration or transaction costs incurred in connection with the
Placing. To the extent (if any) that any such costs for which the
Company or the Vendors are responsible are paid by the Placing Agent
on the Company's or (as the case may be) any Vendor's behalf, the
Company or the Vendors (as appropriate) will reimburse the Placing
Agent for the same within a reasonable time on demand.
5.4 No set-off: All payments to be made pursuant to this Clause 5 shall
be made in full without any set-off, deduction or withholding for or
on account of any taxation unless the payer will pay to the payee
such increased amount as will result, after the set-off, deduction or
withholding of the relevant tax, in the receipt by the payee of a net
amount equal to the full amount which would otherwise have been
received by it had no such set-off, deduction or withholding been
made.
5.5 Allocation: Except for costs incurred by a particular Vendor for its
own account, all commissions, costs and expenses payable by the
Vendors under this Clause 5 shall be allocated among the Vendors pro
rata according to the numbers of Placing Shares respectively sold by
them.
6. WARRANTIES AND INDEMNITY
6.1 Warranties: The Vendors and the Company jointly and severally
represent, warrant and undertake to the Placing Agent as set out in
Schedule 4. Such representations, warranties and undertakings shall
be deemed to be repeated by the Vendors and the Company on the
Closing Date with reference to the facts then subsisting and shall
remain in full force and effect notwithstanding completion of the
Placing and the sale of the Placing Shares to the Placees and, where
appropriate, to the Placing Agent. Each of the Vendors and the
Company separately undertakes and agrees that up to and until
Completion it will forthwith notify the Placing Agent if at any time
anything has occurred which would or would be likely to render untrue
or incorrect in any material respect any of the representations,
warranties and undertakings referred to in this Clause 6.1 if such
representations, warranties and undertakings were to be given and
made at such time.
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6.2 Indemnity:
(a) Indemnity: The Vendors and the Company jointly and severally
undertake to the Placing Agent for itself and as trustee for
each other Indemnified Person to indemnify each Indemnified
Person against all or any Proceedings whether threatened,
brought or established against any of the Indemnified Persons by
any person (other than, for the avoidance of doubt, the Vendors
or the Company), directly or indirectly, arising out of or in
connection with the Placing or any other transactions
contemplated hereby and against all losses, costs, charges,
expenses and liabilities (including legal fees as they are
incurred) which any of the Indemnified Persons may suffer or
incur (save and except for any loss or damage arising out of any
gross negligence, wilful default or fraud on the part of the
relevant Indemnified Person).
It is hereby confirmed and acknowledged by the parties hereto
that the Placing Agent's willingness to enter into this
Agreement may depend upon the provision by the Company of the
undertaking set out in this Clause 6.2 and that without such
undertaking the transactions contemplated in this Agreement and
the Subscription Agreement may not have proceeded.
Each of the Vendors and the Company agrees that none of the
Indemnified Persons will have any liability (save for the
obligations imposed on them under this Agreement) to the
Vendors, the Company or any other person, directly or
indirectly, arising out of or in connection with the Placing or
any transactions contemplated hereby.
(b) General: The undertakings contained in this Clause 6.2 shall
extend to include all losses, costs, charges, expenses and
liabilities which the relevant Indemnified Person may pay or
incur in investigating, disputing or defending any Proceedings
in respect of which indemnity may be sought against the Vendors
or the Company in accordance with this Clause. The relevant
Indemnified Person may be entitled to have full control over the
conduct of any such Proceeding, provided that it shall provide
the Vendors or the Company with copies of all relevant
correspondence and documentation, and shall take into account
all reasonable requests of the Vendors in relation thereto.
6.3 No double claim: The amount of any claim by either of the Placing
Agent or any other Indemnified Person against the Company pursuant to
Clause 6.1 or 6.2 shall be reduced by any amount recovered in respect
of the relevant matters from the Vendors pursuant to such Clause and
vice versa where it has recovered any amount from the Company under
any such Clause.
6.4 Continuity: The foregoing provisions of this Clause shall remain in
full force and effect notwithstanding completion of the Placing.
7. CONDITIONS
The obligation of the Placing Agent to proceed to Completion is
conditional upon:
(a) the Subscription Agreement having been entered into by the
parties thereto;
(b) dealings in the Shares on the Stock Exchange resuming (following
suspension on Thursday, 17 July, 2003) no later than Friday, 18
July, 2003 and, subsequent thereto, listing of or dealings in
any of the Shares on the Stock Exchange not having been
suspended at any time prior to Completion;
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(c) there not having come to the attention of the Placing Agent at
any time prior to Completion (i) any material breach of, or any
event rendering untrue or incorrect in any material respect, any
of the representations, warranties or undertakings referred to
in Clause 6.1 or (ii) any breach of, or failure to perform, any
of the other obligations of the Company or the Vendor which are
required to be performed at or before Completion; and
(d) there not having occurred and come to the attention of the
Placing Agent at any time prior to Completion (i) any suspension
or limitation of trading in securities generally on the Stock
Exchange or the New York Stock Exchange or the establishment of
minimum prices on the Stock Exchange or the New York Stock
Exchange or (ii) the declaration of a banking moratorium in Hong
Kong or by Federal or New York State authorities in the United
States or (iii) any change in local or international financial,
political, military, economic or market (including stock market)
conditions or currency exchange rates or exchange controls
including, without limitation, any outbreak or escalation of
hostilities, declaration by the United States of a national
emergency or war or other calamity or crisis or (iv) any adverse
announcement, determination or ruling of any governmental or
other regulatory body (including delay in approval of the
Placing Announcement or any other relevant announcement by any
relevant stock exchange), which (or the effect of which) would
(in any case mentioned in (ii), (iii) or (iv) above), in the
sole judgment of the Placing Agent, make it impracticable or
inadvisable to proceed with the Placing.
Each of the Vendor and the Company undertakes promptly to inform the
Placing Agent of any matter or circumstance which comes to the
attention of either of them which can reasonably be expected, if
coming to the attention of the Placing Agent, fall within (b), (c) or
(d) above. If any of such conditions shall not have been fulfilled or
(alternatively) waived by the Placing Agent by Completion, this
Agreement and the obligations of the Placing Agent hereunder shall
ipso facto cease and terminate at that time (or at such earlier time
as the relevant condition shall have become incapable of fulfilment
and the Placing Agent shall have determined not to waive fulfilment
and notified the same to the Vendor) and no party shall be under any
liability to any other for costs, damages, charges, compensation or
otherwise under this Agreement, except (i) in relation to
obligations, agreements and liabilities arising prior to such
termination (including liabilities arising prior to such termination
under the representations, warranties and undertakings referred to in
Clause 6.1), (ii) that the Vendor shall remain liable for the payment
of all costs and expenses referred to in Clause 5.2 or 5.3 already
incurred or to be incurred in consequence of such termination and
(iii) that the provisions of Clause 6 shall remain in full force and
effect.
8. RESTRICTIONS
8.1 Lock up: In order to induce the Placing Agent to enter into this
Agreement and in consideration of the obligations of the Placing
Agent hereunder:
(a) each of the Vendors undertakes to the Placing Agent that (except
for any exchange or redemption by way of transfer of Shares in
relation to the AIG Bonds or the Intel Bonds or the sale of the
Placing Shares pursuant to this Agreement) from the date hereof
and on or prior to the date being six months after the date of
this Agreement it will not and will procure that none of its
nominees and companies controlled by it (whether individually or
together and whether directly or indirectly) will (without the
prior written consent of the Placing Agent) (i) offer, issue,
sell, contract to sell, sell any contract to purchase, purchase
any option to sell, grant any option, right or warrant to
purchase, or otherwise transfer or dispose of (either
conditionally or
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unconditionally, or directly or indirectly, or otherwise) any
Shares (excluding the Placing Shares) or any interests therein
or any securities convertible into or exercisable or
exchangeable for any such Shares or interests or (ii) enter into
any swap or similar agreement that transfers, in whole or in
part, the economic risk of ownership of such Shares, whether any
such transaction described in (i) or (ii) above is to be settled
by delivery of Shares or such other securities, in cash or
otherwise or (iii) announce any intention to enter into or
effect any such transaction described in (i) or (ii) above; and
(b) the Company undertakes to the Placing Agent that (except for (i)
the new Shares to be allotted and issued to the subscribers
named in the Subscription Agreement and (ii) any Shares or other
securities or rights issued or granted to shareholders by way of
bonus or under any scrip dividend or similar arrangement
providing for the allotment of Shares in lieu of the whole or
part of a dividend on Shares of the Company in accordance with
its Articles of Association or as a result of the exercise of
conversion rights under the following convertible bonds issued
by the Company or its subsidiaries: US$54,377,474.95 5%
Mandatory Convertible Note due 2005 issued by PCCW Limited on 28
June 2002 to Telstra Corporation Limited, amended and restated
with effect from 25 April 2003; US$450,000,000 1% Guaranteed
Convertible Bonds due 2007 issued by PCCW Capital No. 2 Limited
on 29 January 2002 and guaranteed by the Company and PCCW-HKT
Telephone Limited; and US$1,100,000,000 3.5% Guaranteed
Convertible Bonds due 2005 issued by PCCW Capital Limited on 5
December 2000 and guaranteed by the Company, the exercise of
exchange or redemption rights under, or the transfer or disposal
of interests in Shares pursuant to the terms and conditions of,
the AIG Bonds or the Intel Bonds, the exercise of options
granted to Xxxxx Xxxxxx pursuant to the terms and conditions of
a consulting agreement dated 17 August 1999, the exercise of all
existing and future employee share options granted by the
Company from time to time and shares issued under any employee
share award scheme of the Company from time to time or on the
exercise of any other rights existing at the date of this
Agreement and (iii) further options granted under existing share
schemes) from the date hereof and on and prior to the date being
six months after the date of this Agreement it will not (without
the prior written consent of the Placing Agent) (i) allot or
issue or offer to allot or issue or grant any option, right or
warrant to subscribe (either conditionally or unconditionally,
or directly or indirectly, or otherwise) any Shares or any
interests in Shares or any securities convertible into or
exercisable or exchangeable for any Shares or interest in Shares
or (ii) agree (conditionally or unconditionally) to enter into
or effect any such transaction described in (i) above or (iii)
announce any intention to enter into or effect any such
transaction described in (i) or (ii) above.
8.2 Placees independent: The Placing Agent will use its reasonable
endeavours to ensure that the Placees will be third parties
independent from the Vendors and their associates. Each Vendor shall
in any event notify the Placing Agent if it becomes aware that any
party connected with such Vendor or any of its associates intends to
acquire Shares in the Placing. For the purposes of this paragraph,
"associates" shall have the meaning ascribed thereto under Rule 1.1
of the Listing Rules, and (for the avoidance of doubt) a person who
is, or would be treated as, acting in concert with any of the Vendors
in relation to the Company for the purposes of the Hong Kong Code on
Takeovers and Mergers shall not be considered to be independent of
such Vendor.
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9. ANNOUNCEMENTS
9.1 No announcements: Save as otherwise required by law or by the Stock
Exchange or the New York Stock Exchange or the SFC or, in the case of
PCRD, by the Singapore Exchange Securities Trading Limited, each of
the Vendors and the Company hereby undertakes that no public
announcement or communication (other than the Placing Announcement)
which is material in relation to the Placing shall be made or
despatched by the Company or any of the Vendors between the date
hereof and the day falling one week after the Closing Date without
the prior written consent of the Placing Agent as to the content,
timing and manner of making or despatch thereof.
9.2 Costs: The Company will pay any printing or publishing costs
associated with the Placing and the publication of the Placing
Announcement and any costs, charges, fees and expenses of the
Company's share registrars in Hong Kong including their fees and
expenses in effecting the transfer of the Placing Shares, and the
issue of certificates therefor in board lots, to the Placees and,
where appropriate, the Placing Agent or any purchaser to whom the
Placing Agent has onsold any Placing Shares (if any).
10. SUBSCRIPTION AGREEMENT
The Vendors and the Company hereby undertake to the Placing Agent
that:-
(a) they will not make any alteration to the terms or conditions of
the Subscription Agreement without the prior written consent of
the Placing Agent; and
(b) they will fully and promptly perform the Subscription Agreement
in accordance with its terms and will take all such steps and
execute all such documents as may be necessary or desirable for
the Subscription Agreement to become unconditional and to be
completed.
11. TIME
Time will be of the essence of this Agreement.
12. COSTS
Subject as specifically provided herein, each of the parties to this
Agreement will bear its own costs and expenses incurred in connection
with the Placing.
13. NOTICES
13.1 Any notice or notification in any form to be given by the Placing
Agent to any Vendor or the Company may be delivered in person or
posted or sent by fax addressed to:
in the case of the Vendors:
Pacific Century Regional Developments Limited
0 Xxxxxxx Xxxx #00-00
Xxxxxxxxx 000000
Fax Number: (00) 0000-0000
Attention of: Company Secretary
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in the case of the Company:
PCCW Limited
00xx Xxxxx, XXXX Xxxxx
Xxxxxx Xxxxx
000 Xxxx'x Xxxx
Xxxxxx Xxx
Xxxx Xxxx
Fax Number: (000) 0000-0000
Attention of: Company Secretary
13.2 Any notice or notification in any form to be given by any Vendor or
the Company to the Placing Agent may be delivered in person or posted
or sent by fax addressed to:
Citigroup Global Markets Asia Limited
00xx Xxxxx
Xxxxx Xxxxxxxx Xxxxxx
Xxxxxxx, Xxxx Xxxx
Fax Number: (000) 0000 0000
Attention of: Xxxxx Xxxxxx
13.3 Any such notice or notification shall take effect, in the case of a
letter, at the time of delivery and, in the case of fax, at the time
of despatch.
14. GOVERNING LAW
14.1 This Agreement shall be governed by and construed in accordance with
the laws of Hong Kong.
14.2 The parties irrevocably agree that the courts of Hong Kong shall have
jurisdiction to settle any disputes which may arise out of or in
connection with this Agreement. The parties each submit irrevocably
to the non-exclusive jurisdiction of the courts of Hong Kong in
relation to such matters.
14.3 Each Vendor hereby appoints Pacific Century Regional Developments
(HK) Limited of 38th Floor, Citibank Tower, Xxxxxxxx Xxxxx, 0 Xxxxxx
Xxxx, Xxxxxxx, Xxxx Xxxx as its agent for service in relation to any
matter arising out of or in connection with this Agreement.
14.4 Each of the parties irrevocably waives any objection it may now or
hereafter have to the laying of venue of any action or proceeding in
any court and any claim it may now or hereafter have that any action
or proceeding has been brought in an inconvenient forum.
IN WITNESS whereof this Agreement has been entered into the day and year first
above written.
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SIGNATORIES
SIGNED by )
PACIFIC CENTURY )
REGIONAL DEVELOPMENTS LIMITED )
in the presence of: )
THE COMMON SEAL of )
PCCW LIMITED )
was hereto affixed in accordance with )
its articles of association )
in the presence of: )
SIGNED by )
duly authorised for and on behalf of )
CITIGROUP GLOBAL MARKETS ASIA )
LIMITED )
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SCHEDULE 1
INTERPRETATION
In this Agreement (including the Recitals) unless specifically provided
otherwise or the context otherwise requires:
(a) the following expressions shall have the following meanings:
Accounts Date means 31st December, 2002;
AIG Bonds means the US$250,000,000 secured redeemable bonds
exchangeable for Shares and constituted by a deed poll dated 7th
December 2001, as amended by supplemental deed poll dated 12th June
2003 and issued to AIG Asian Infrastructure Fund II L.P., American
International Assurance Company (Bermuda) Limited, AIG Asian
Opportunity Fund, L.P.;
Business Day means any day (excluding Saturdays) on which banks
generally are open for business in Hong Kong;
CCASS means Central Clearing and Settlement System established and
operated by HKSCC;
Closing Date means (i) in relation to the Firm Placing Shares, 3:00
p.m. on 21 July, 2003 or such other time or date as the Vendor and
the Placing Agent shall agree and (ii) in relation to any Option
Shares, the applicable Option Closing Date;
Completion means completion of the obligations of the parties under
this Agreement with respect to the Firm Placing Shares and/or any
Option Shares (as appropriate) pursuant to Clause 4 and Schedule 3;
Firm Placing Shares means 715,000,000 issued Shares to be sold, or
procured to be sold, by the Vendor;
General Rules means the General Rules of CCASS from time to time in
force;
Group means the Company and its Subsidiaries;
HKSCC means the Hong Kong Securities Clearing Company Limited;
HK$ or $ means Hong Kong Dollars, the lawful currency of Hong Kong;
Indemnified Persons means the Placing Agent and any person or persons
appointed as its agent or agents pursuant to Clause 3.2 together with
their respective affiliates, their respective directors, officers,
agents and employees and any other entity or person, if any,
controlling the Placing Agent or any such agent or any of their
respective affiliates within the meaning of either Section 15 of the
US Securities Act or Section 20 of the US Exchange Act and
Indemnified Person means any one of them;
Intel Bonds means the US$100,000,000 secured redeemable exchangeable
bonds due 2006 to 2007 exchangeable for Shares and constituted by a
deed poll dated 15th January 2002 and amended by supplemental deed
poll dated 28th October 2002 and second supplemental deed poll dated
11th June 2003 and issued to Intel Capital Corporation;
Investment Letter means a letter in the agreed form to be signed by
US investors;
11
Liens means liens, charges and encumbrances, claims, options and
third party rights;
Listing Rules means the Rules governing the listing of securities on
the Stock Exchange from time to time;
Operational Procedures means the Operational Procedures of HKSCC in
relation to CCASS from time to time in force;
Option means the right of the Placing Agent in Clause 2.2 to require
the Vendor to sell, or to procure the sale of, the Option Shares;
Option Closing Date means 3:00 p.m. on 21 July, 2003 or such other
time (during Hong Kong business hours) and date no earlier than one
Business Day following service of the relevant exercise notice given
pursuant to Clause 2.3 as the Placing Agent may stipulate in such
notice or such other time or date as the Vendor and the Placing Agent
shall agree;
Option Expiry Time means 5:30 p.m. on the date on which dealings in
the Shares on the Stock Exchange first resume;
Option Shares means such number of issued Shares (if any) as may be
stipulated as such in Schedule 5;
PCRD means Pacific Century Regional Developments Limited, details of
which are set out in Part A of Schedule 5;
Participant means a person admitted for the time being by HKSCC as a
participant of CCASS;
Placees means professional, institutional and other investors
selected and procured by or on behalf of the Placing Agent as
contemplated by this Agreement;
Placing means the placing by or on behalf of the Placing Agent and,
where appropriate, the purchase as principal by the Placing Agent of
the Placing Shares on the terms and subject to the conditions
referred to herein;
Placing Announcement means a press announcement to be issued on
behalf of the Company as soon as reasonably practicable following the
execution of this Agreement and in a form to be agreed between the
Company and the Placing Agent;
Placing Period means the period from execution of this Agreement up
to the Closing Date;
Placing Price means HK$4.40 per Placing Share;
Placing Shares means the Firm Placing Shares and any Option Shares;
Previous Announcements means the annual report of the Company for the
year ended on the Accounts Date, the announcement dated 2nd July,
2003 with respect to its 2002 20F filing, the announcement dated 9th
July, 2003 with respect to a PCCW-HKT Telephones Limited 6%
Guaranteed Note issue, and all other announcements and circulars
issued by the Company to the Stock Exchange and/or the shareholders
of the Company since the Accounts Date;
Proceedings means claims, actions, liabilities, demands, proceedings
or judgements;
QIB means a qualified institutional buyer as defined in Rule 144A;
12
Reference Price means HK$4.37 per Share;
Regulation S means Regulation S under the US Securities Act;
Rule 144A means Rule 144A under the US Securities Act;
SFC means the Securities and Futures Commission of Hong Kong;
Shares has the meaning given to it in recital (A);
Stock Exchange means The Stock Exchange of Hong Kong Limited;
Subscription means the subscription of new Shares pursuant to the
Subscription Agreement;
Subscription Agreement means the agreement of even date herewith in
the agreed form between the Vendor and the Company pursuant to which,
and conditionally upon completion of the Placing pursuant to Clause 4
and Schedule 3 and satisfaction of the other conditions set out in
that agreement, the Vendor will subscribe for a total number of new
Shares equal to the number of Placing Shares sold hereunder on the
terms set out in that agreement;
Subsidiary has the same meaning as in Section 2 of the Companies
Ordinance (Cap. 32 of the laws of Hong Kong);
United States has the meaning given in Regulation S;
US Exchange Act means the United States Securities Exchange Act of
1934, as amended;
US Securities Act means the United States Securities Act of 1933, as
amended; and
Vendors means PCRD.
(b) references to Clauses and the Schedules are to clauses of and the
schedules to this Agreement;
(c) words importing the singular include the plural and vice versa; words
importing a gender include every gender and references to persons
include bodies corporate or unincorporated;
(d) any document expressed to be "in the agreed form" means a document
approved by the parties hereto and for the purpose of identification
signed by the Vendor, the Company and the Placing Agent;
(e) the words "include", "includes" and "including" as used herein shall
be construed as if followed by the words ",without limitation,"; and
(f) the Schedules shall constitute a part of, and are hereby incorporated
into, this Agreement.
Headings are for convenience only and shall not affect the construction of this
Agreement.
13
SCHEDULE 2
SELLING RESTRICTIONS
The selling restrictions and other obligations of the Placing Agent referred to
in Clause 3.5 are as follows:
(a) General: 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 Schedule 4 or (ii) any public written information or statements or
omissions of the Vendor or the Company;
(b) Hong Kong: 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);
(c) United Kingdom: (i) it has not offered or sold and, prior to the
expiry of the period of six months from the Closing 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 Xxx 0000 (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;
(d) United States: (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 an Investment
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
14
of the Placing Shares and the Closing Date, only in accordance with
Rule 903 of Regulation S under the US Securities Act or to a limited
number of investors who sign an Investment Letter 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 an Investment Letter) 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.
15
SCHEDULE 3
COMPLETION MECHANICS
1. Vendor's obligations: On the applicable Closing Date each Vendor
shall:
(a) procure that its designated Participant gives an irrevocable delivery
instruction to effect a book-entry settlement of the Placing Shares
on Completion in accordance with this Agreement and the General Rules
and the Operational Procedures to the credit of the stock accounts of
the Participants of the Placees in accordance with the details
provided to the Vendor by the Placing Agent prior to Completion; and
(b) deliver to, or procure that there be delivered to, the Placing Agent
or as it may direct, evidence of the giving of the delivery
instruction in (a).
2. Placing Agent's obligations: Against compliance by the Vendors with
their obligations pursuant to paragraph 1 above and subject to Clause
7, the Placing Agent (or its nominee or agent) shall on the Closing
Date make or procure the making of payment to the respective Vendors
in Hong Kong dollars of the aggregate Placing Price of the Placing
Shares respectively sold by them (less the amounts of underwriting
commission and expenses referred to in Clause 5), the payment of
which shall constitute a complete discharge of the Placing Agent's
obligations to purchase the Placing Shares hereunder. Such payment
shall be made for value on the Closing Date and to such bank account
held with a leading bank in Hong Kong as may be notified by the
respective Vendors to the Placing Agent at least one Business Day
before Completion.
16
SCHEDULE 4
REPRESENTATIONS AND WARRANTIES
The Vendors and the Company jointly and severally represent, warrant and
undertake to the Placing Agent that:
(a) Placing Announcement: 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 form and context in which
they appear, all expressions of opinion, intention or expectation
contained therein are made on reasonable grounds and are truly and
honestly held by the directors of the Company (such representation
and warranty being given only by the Company) and of each Vendor
(such representation and warranty being given only by the Vendor) and
are fairly based, all forecasts, and estimates therein are honest and
fair and there are no other facts omitted the omission of which makes
any such statement or expression in the Placing Announcement
misleading in any material respect or which are or can reasonably be
expected to be material in the context of the Placing;
(b) Previous Announcements: with respect to all the Previous
Announcements, all statements of fact contained therein were true and
accurate in all material respects and not misleading in any material
respect and all expressions of opinion or intention contained therein
were made on reasonable grounds and were truly and honestly held by
the directors of the Company and were fairly based and there were no
other facts omitted so as to make any such statement or expression in
any of the Previous Announcements misleading in any material respect
or which would or might have been material in the context in which
the Previous Announcements were made;
(c) Accounts: the consolidated balance sheet of the Group as at the
Accounts Date and the consolidated income statement, the consolidated
cash flow statement and the consolidated statement of changes in
equity of the Group for the financial year ended on that date
(including the notes thereto) as set out in the annual report and
accounts of the Group for the year ended on the Accounts Date
together gave a true and fair view of the state of affairs of the
Group as at the Accounts Date and of the profits or losses, cash
flows and changes in equity of the Group for the financial year ended
on that date and were prepared on the basis set out therein;
(d) No material adverse change: save as disclosed in the Placing
Announcement or the Previous Announcements, since the Accounts Date:
the business of the Group has been carried on in the ordinary and
normal course and no contracts or commitments of an unusual or unduly
onerous nature have been entered into by any member of the Group;
there has been no material depletion in the net assets of the Group
taken as a whole; and there has been no material adverse change, nor
any development reasonably likely to involve a prospective material
adverse change, in the condition, financial or otherwise, or in the
earnings, business, operations or prospects of the Group taken as a
whole;
(e) No litigation: save as disclosed in the Placing Announcement or the
Previous Announcements, neither the Company nor any of its
Subsidiaries is engaged in any litigation, arbitration or
governmental proceeding which (individually or in aggregate) can
reasonably be expected to have or have had during the twelve months
preceding the date hereof a significant effect on the financial or
trading position or prospects of the Group or which individually or
collectively are material for disclosure in the context of the
Placing and no such litigation, arbitration or proceeding is
threatened or pending: nor, to the best of the knowledge, information
and belief of the directors of the Company, are there any
17
circumstances which can reasonably be expected to give rise to any
such litigation, arbitration or proceeding;
(f) Indebtedness and obligations: except under the AIG Bonds and the
Intel Bonds no circumstances or events have arisen or occurred or so
far as the Vendor and the Company are aware are likely to arise or
occur such that any person is (or would, with the giving of notice
and/or lapse of time and/or fulfilment of any condition and/or the
making of any determination, become) entitled to repayment of any
material indebtedness prior to its due date for payment by any member
of the Group, or to take any step to enforce any security for any
such indebtedness of any member of the Group and no person to whom
any indebtedness for borrowed money of any member of the Group which
is payable on demand is owed has demanded or threatened to demand
repayment of the same: no member of the Group is party to or under
any obligation which is material and is of an unusual or unduly
onerous nature; neither this Agreement nor the Placing nor the
Subscription will constitute or give rise to a breach of or default
under any agreement or other arrangement to which the Company or any
other member of the Group is party or give rise to any rights of any
third party in respect of any assets of the Group;
(g) Corporate power and consents: each of the Vendors and the Company has
power under its constitutional documents to permit its entry into
this Agreement and the Placing in the manner set out herein and this
Agreement (and its performance) has been duly authorised (such
authorisation remaining in full force and effect), executed and
delivered by, and constitutes legal, valid and binding obligations
of, such Vendor and the Company enforceable in accordance with its
terms; there is no authorisation, consent, approval or notification
required for the purposes of or as a consequence of the Placing or
the Subscription either from governmental, regulatory or other public
bodies (including, without limitation, the Stock Exchange) or
authorities or courts or from the respective shareholders of such
Vendor or the Company (except under the AIG Bonds and the Intel
Bonds) or from any third party pursuant to any contractual or other
arrangement to which such Vendor or the Company or any other member
of the Group is party; the Placing and the compliance by each of the
Vendors and the Company with all of the provisions of this Agreement
will not conflict with or result in a material breach or violation of
any of the terms or provisions of, or constitute a material default
under, any agreement or instrument to which it is a party or by which
it is bound or to which any of its property or assets is subject
other than the AIG Bonds and the Intel Bonds and will not contravene
any law or regulation applicable to, or any order of any court or
governmental agency with jurisdiction over, such Vendor, the Company
or any member of the Group, or any of their respective assets or
properties.
(h) Placing Shares: the Placing Shares have been duly and validly
authorised and issued, are fully paid up, and rank pari passu in all
respects with the other issued Shares and were allotted and issued by
the Company more than six months prior to the date hereof, and each
Vendor represents that it is entitled to and will procure the
transfer of the full beneficial ownership of its Placing Shares to
the Placees or the Placing Agent (as applicable) in accordance with
the General Rules and the Operational Procedures, in all cases free
from and clear of all Liens;
(i) Stock Exchange and general compliance: the Company is not in material
breach of any rules, regulations or requirements of the Stock
Exchange or its listing agreement made with the Stock Exchange (and,
without limiting the foregoing, all announcements required to be made
by the Company under or in accordance with any such rules,
regulations or requirements, or pursuant to such listing agreement,
have been duly made): the Company and the Vendors have complied and
will comply with all other applicable rules, regulations and other
requirements material or relevant to the transactions contemplated by
this Agreement (including rules governing restrictions on and/or
disclosure of dealings);
18
(j) Inside information and dealings in and in relation to securities:
none of the Vendors is in possession of any unpublished information
with respect to the Company or the Group which is price sensitive in
relation to the Shares or other securities of the Company (or
otherwise material for public disclosure) and the Vendors have not
been, are not and will not be at any time in contravention of Part
XIV of the Securities and Futures Ordinance (Cap. 571 of the laws of
Hong Kong) in connection with the Placing and the related
transactions entered into or to be entered into pursuant to the
Subscription Agreement; none of the Vendors nor any person acting on
such Vendor's behalf or under its control has made or will make bids
or purchases for the purpose of creating actual or apparent active
trading in, or of raising the price of, any shares or other
securities of the Company or any right to purchase any such shares or
securities convertible into or exchangeable or exercisable for such
shares that is designed to or that has constituted, or that might
reasonably be expected to cause or result in, manipulation of the
price of any security of the Company;
(k) Securities dealing code: the Company has adopted a code for
transactions in its securities by its directors no less stringent
than the Model Code for Securities Transactions by Directors of
Listed Companies set out in the Listing Rules and such Code has been
and will be fully complied with in connection with the Placing and
the related transactions entered into or to be entered into pursuant
to the Subscription Agreement;
(l) Disclosures: the Vendors and the Company will make all appropriate
disclosures pursuant to, and will comply in all respects with, the
Listing Rules, the Hong Kong Code on Takeovers and Mergers and Part
XV of the Securities and Futures Ordinance (Cap. 571 of the laws of
Hong Kong), and all equivalent or similar requirements in Singapore,
in connection with the Placing and the related transactions entered
into or to be entered into pursuant to the Subscription Agreement;
(m) Incorporation and share capital: each of the Vendors and the Company
has been duly incorporated and is validly existing under the laws of
the jurisdiction of its incorporation with full corporate power and
authority to conduct its business and the information contained in
the recitals to this Agreement is true and accurate (such
representation and warranty concerning the recitals being given only
by the Vendors to the extent that it relates to recital (B)); without
limiting the foregoing, except for the Subscription or pursuant to
the AIG Bonds and the Intel Bonds or as specified in the Previous
Announcements, no person has any outstanding warrant, option,
preemptive right or any other right of any description to require
Shares to be allotted or issued by the Company;
(n) Regulation S: (i) none of the Company nor any 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 a Vendor or its affiliates, be given only by such
Vendor; (ii) the Vendors, 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 subject to the reporting
requirements of the US Exchange Act;
(o) No offer or sale requiring registration. Neither the Company nor the
Vendors 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 a Vendor or its affiliates, be given only by
19
such Vendor; neither the Company nor the Vendors 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 a Vendor or its affiliates, be given only
by such Vendor;
(p) Investment Company Act. 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;
(q) Provision of Information: each of the Vendor and the Company will
promptly provide the Placing Agent, at its request, with all such
information known to it or which on reasonable enquiry ought to be
known to it relating to the Group or such 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; and
(r) Repetition: all the aforesaid representations and warranties shall be
true also as at, and as if repeated at, the Closing Date (as if made
with reference to the facts and circumstances existing on the Closing
Date).
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SCHEDULE 5
PART A: DETAILS OF THE VENDORS
1. PCRD
Pacific Century Regional Developments Limited, a company incorporated
with limited liability in Singapore whose registered office is at 0
Xxxxxxx Xxxx #00-00, Xxxxxxxxx 000000.
PART B: DETAILS OF THE PLACING SHARES
1. Shares owned by the Vendors
Beneficial owner: PCRD
Registered Holder No. of Shares Held
PCRD 817,858,045
2. Firm Placing Shares
Vendor No of Firm Placing Shares
PCRD 715,000,000
-----------
Total 715,000,000
===========
3. Option Shares
Number of Option Shares: NIL
21
