EXHIBIT NUMBER 4(a)6
THIS AGREEMENT dated March 23, 2006 is made
BETWEEN:-
(1) CHINA ENTERPRISES LIMITED, a company incorporated in Bermuda whose
registered address is situated at Xxxxxxxxx Xxxxx, 0 Xxxxxx Xxxxxx,
Xxxxxxxx XX00, Xxxxxxx and whose principal place of business in Hong Kong
is at 0/X Xxxx X Xxxxxx, 00 Xxxx Xx Xxxx, Xxxx Xxxx, Xxxx Xxxx (the
"Subscriber"); and
(2) WING ON TRAVEL (HOLDINGS) LIMITED, a company incorporated in Bermuda whose
principal office in Hong Kong is situated at 7th Floor, Xxxx X. Centre, 00
Xxxx Xx Xxxx, Xxxx Xxxx, Xxxxxxx, Xxxx Xxxx (the "Company"),
each a "party" and collectively the "parties".
WHEREAS:-
(A) the Company is a company incorporated in Bermuda and having an authorised
share capital of HK$1,500,000,000 divided into 1,500,000,000 Shares of
which 437,586,108 Shares are in issue and are fully paid or credited as
fully paid as at the date of this Agreement;
(B) the Company proposes to issue Notes of up to HK$1,000,000,000 in aggregate
principal amount of Notes;
(C) the Notes will be constituted by a trust deed expected to be dated the
Completion Date (as defined herein) (the "Trust Deed") between the Company
and a trustee (the "Trustee") to be appointed by the Issuer and approved
by the Subscriber and subscribers of the Other Subscription Agreements
acting reasonably. Payments of principal on the Notes will be made on
behalf of the Company by paying agents appointed under a paying and
conversion agency agreement expected to be dated the Completion Date (the
"Paying and Conversion Agency Agreement") between the Company, the Trustee
and the paying agents named therein (the "Paying Agents");
(B) the Company now has agreed to issue and the Subscriber has agreed to
subscribe for the Subscription Note upon and subject to the terms and
conditions set out in this Agreement.
NOW IT IS HEREBY AGREED as follows:-
1. INTERPRETATION
1.1 In this Agreement and the recitals hereto, the words and expressions set
out below shall have the meanings attributed to them below unless the
context otherwise requires:
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"Announcement" means the announcement to be made by the Company
concerning this Agreement and the proposed issue
of the Notes as required by the Listing Rules as
(only so far as it relates to the description of
the Subscriber) approved by the Subscriber;
"Audited Accounts Date" means 31st December, 2004;
"Business Day" means any day other than a Saturday on which
banks in Hong Kong are open for business;
"Capital Reduction" means the proposed reduction in the nominal
value of the issued share capital of the Company
from HK$1.00 each per Share to HK$0.10 per Share
by cancelling HK$0.90 paid up on each issued
existing Share as set out in the announcement of
the Company dated 1st March 2006;
"Capital Restructuring" means the Capital Reduction and the Subdivision;
"CEL Subscription Agreement" means the subscription agreement of even date
for the subscription of the Notes in the
aggregate principal amount of HK$300 million
entered into between the Company and China
Enterprises Limited on no more favourable terms
than those offered to the Subscriber under this
Agreement;
"Completion" means the date fixed for completion pursuant to
Clause 4 or, where the context so admits or
requires, the performance by the parties hereto
of their respective obligations under Clause 4;
"Completion Date" has the meaning ascribed thereto in Clause 4.1;
"Conditions" means the terms and conditions to be attached
to or form part of the Notes (with such
amendments thereto as the parties may agree),
and "Condition" refers to the relative
numbered paragraph of the Conditions;
"Conditions Precedent" means the conditions precedent set out in
Clause 3.1;
"Conversion Rights" means the rights attached to the Notes to
convert the principal amount of the Notes or a
part thereof into Conversion Shares in
accordance with the
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Conditions;
"Conversion Shares" means the Shares to be issued by the Company
under the Notes (upon exercise by a Noteholder
of the Conversion Right, or otherwise pursuant
to the Conditions);
"CSH" means China Strategic Holdings Limited, a
company incorporated in Hong Kong with limited
liability and the shares of which are listed on
the Main Board of the Stock Exchange;
"Group" means the Company and its Subsidiaries from time
to time and a "member of the Group" shall be
construed accordingly;
"HK$" and "cents" means Hong Kong dollars and cents, respectively;
"Hong Kong" means the Hong Kong Special Administrative
Region of the People's Republic of China;
"Interim Accounts Date" means 30th June, 2005;
"Listing Rules" means the Rules Governing the Listing of
Securities on the Stock Exchange;
"Memorandum of Association means the memorandum of association and the
and Bye-Laws" bye-laws of the Company from time to time;
"Notes" means the 2% convertible notes to be constituted
by the Trust Deed in the aggregate principal
amount of up to HK$1,000,000,000 issued or to be
issued by the Company with the benefit of and
subject to the provisions of the Conditions,
substantially in the form set out in Schedule 1
and "Note" shall be construed accordingly;
"Noteholder" means the person who is for the time being the
holder of a Note;
"Offers" means the GDI Offer and the China Strategic
Offer (both as defined in the circular dated
10th September 2005 of China Strategic Holdings
Limited and the circular dated 14th September,
2005 of Hanny Holdings Limited);
"Other Subscription means the CEL Subscription Agreement and the six
Agreements" subscription agreements all of even date for
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the subscription of the Notes (excluding the
Subscription Note) entered into between the
Company and each of the following parties on
terms no more favourable than those offered to
the Subscriber under this Agreement:-
Gandhara Advisors Asia Ltd.
Highbridge International LLC
Highbridge Asia Opportunities Master L.P.
DKR Soundshore Oasis Holding Fund Ltd
PMA Capital Management Limited, acting as agent
on behalf of funds managed by it (as specified
in the relevant subscription agreement to which
it is party)
Mr. Ma Ho Man, Xxxxxxx
Xxxxxxxxx International Limited
"Placing" mean the placing of up to 175,000,000 new
Shares as set out in the announcement of the
Company dated 1st March, 2006;
"PRC" means the People's Republic of China;
"Shares" means as at the date hereof shares of HK$1.00
each in the share capital of the Company and (in
the context of the Placing, the Subscription
Note and shares which fall to be issued pursuant
thereto) ordinary share(s) of HK$0.10 each in
the capital of the Company after completion of
the Capital Restructuring;
"Subdivision" a proposed subdivision of each unissued share of
HK$1.00 each into 10 shares of HK$0.10 each as
described in the announcement of the Company
dated 1st March 2006;
"Subscription" means the subscription of the Subscription Note
by the Subscriber under this Agreement;
"Subscription Note" means the Note of aggregate principal amount of
HK$300 million;
"Subsidiary" has the meaning ascribed to it in the Listing
Rules;
"Stock Exchange" means The Stock Exchange of Hong Kong Limited;
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"Warranties" means the representations, warranties and
undertakings contained in Clause 5.
1.2 Expressions defined in the Conditions shall, unless the context otherwise
requires, have the same meanings where used herein.
1.3 The expressions "Company" and "Subscriber" shall where the context permits
include their respective successors and permitted assigns and any persons
deriving title under them.
1.4 In this Agreement, unless the context requires otherwise, references to
statutory provisions shall be construed as references to those provisions
as replaced, amended, modified or re-enacted from time to time; words
importing the singular include the plural and vice versa and words
importing gender or the neuter include both genders and the neuter;
references to this Agreement or any issue document shall be construed as
references to such document as the same may be amended or supplemented
from time to time; unless otherwise stated, references to "Clauses" and
the "Schedule" are to clauses of and schedules to this Agreement. Clause
headings are inserted for reference only and shall be ignored in
construing this Agreement.
2. SUBSCRIPTION OF THE SUBSCRIPTION NOTE
2.1 Subject to fulfilment of the Conditions Precedent, the Company shall issue
the Subscription Note to the Subscriber and the Subscriber hereby agrees
to subscribe for or procure the subscription of the Subscription Note at
its face value.
2.2 Subject to fulfilment of the Conditions Precedent, on Completion, the
Company shall, issue the Subscription Note at their face value to the
Subscriber which shall be paid for by the Subscriber to the Company or
such other party as it may direct in writing at Completion by delivery of
a banker's draft or by telegraphic transfer of the relevant amount in
accordance with Clause 4.2.
3. CONDITIONS PRECEDENT
3.1 The obligation of the parties hereto to effect Completion shall be
conditional upon:-
(a) the passing by the requisite majority required under the Listing
Rules of shareholders of the Company in general meeting of all
necessary resolutions to ratify the Company's entering into this
Agreement and performance of the transactions contemplated in this
Agreement including the issue of the Subscription Note and the
Shares which fall to be issued and allotted on exercise of
conversion rights attached to the Subscription Note;
(b) the Listing Committee of the Stock Exchange having granted (either
unconditionally or subject only to conditions to which the Company
and the Subscriber both acting reasonably do not object) listing of
and permission to deal
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in the Conversion Shares;
(c) the passing by the requisite majority required under the Listing
Rules of shareholders of CSH in general meeting of a resolution to
approve the terms of the CEL Subscription Agreement (including the
exercise of conversion rights and exchange rights attached to the
Notes);
(d) the obtaining of all consents (including shareholders approval) that
are required under the Hong Kong Code on Takeovers and Mergers or
the Executive (as defined in that Code) in connection with the
Offers;
(e) if required, an increase of authorised share capital of the Company
to facilitate the issue of the Conversion Shares and the Bermuda
Monetary Authority having approved the issue of shares of the
Company permitted by such increased authorised capital, the issue of
the Subscription Note and the Conversion Shares and the
transferability of the Note and the Conversion Shares;
(f) the completion of the Capital Restructuring,
(g) the Warranties made by the Company in this Agreement and specified
at Clause 5.1 being true, complete and accurate and not misleading
when made and shall be true, complete and accurate, and not
misleading as at Completion as if made at Completion;
(h) the Subscriber having received a legal opinion to be dated the
Completion Date issued by Xxxxxxx Xxxx & Xxxxxxx, Bermuda counsel of
the Company in respect of (i) the due incorporation and valid
existence of the Company; and (ii) the due execution and
enforceability against the Company of this Agreement, the Notes and
the Trust Deed; (iii) the issue of the Subscription Note and the
issue and allotment of the Conversion Shares under the laws of
Bermuda in form and substance satisfactory to the Subscriber and the
subscribers under the Other Subscription Agreements, all acting
reasonably;
(i) the Subscriber having received a legal opinion to be dated the
Completion Date issued by Xxxxxxxx Xxxxxx, Hong Kong counsel of the
Company in respect of the enforceability against the Company of this
Agreement, the Notes and the Trust Deed under the laws of Hong Kong
in form and substance satisfactory to the Subscriber and the
subscribers under the Other Subscription Agreements, all acting
reasonably;
(j) the Trust Deed and the Paying and Conversion Agency Agreement, each
in a form satisfactory to the Subscriber and the subscribers under
the Other Subscription Agreements, all acting reasonably, shall have
been executed by all parties thereto on or prior to the Completion
Date;
provided, however, the Subscriber may, at its discretion, waive
satisfaction of the Condition Precedents specified in Clause 3.1 (g), (h),
(i) and (j).
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3.2 The Company and the Subscriber agree that, in relation to the granting of
listing of and permission to deal in the Conversion Shares as referred to
in Clause 3.1(b), any condition which may be imposed by the Stock Exchange
and/or the Listing Committee thereof requiring approval or consent of the
Stock Exchange before the Notes may be transferred to a connected person
(as defined in the Listing Rules) of the Company shall be a condition to
which the Company and the Subscriber shall not reasonably object.
3.3 The parties shall use their respective reasonable endeavours to procure
the fulfillment of all the Conditions Precedents. If any of the Conditions
Precedents have not been fulfilled or waived by the Subscriber (in respect
of the Condition Precedent specified in Clause 3.1(d)) on or before the
day which falls on the expiry of 120 calendar days immediately following
the date of this Agreement (or such later date as may be agreed by the
parties hereto and the parties to the Other Subscription Agreements in
writing then this Agreement (save and except Clauses 7 to 11) shall lapse
immediately thereafter and be of no further effect and neither party to
this Agreement shall have any claim against or liability or obligation to
other party under this Agreement.
4. COMPLETION
4.1 Subject to the Conditions Precedent being fulfilled or (as the case may
be) waived, Completion shall take place at 20/F., Xxxxxxxxx Xxxxx, 00-00
Xxxxxx Xxxx, Xxxxxxx, Xxxx Xxxx (or such other place as the Company and
the Subscriber shall agree in writing) at 11:00 a.m. Hong Kong time on the
third Business Day next following the date of fulfilment of the Conditions
Precedent (other than the Condition Precedent set out in Clause 3.1(g),
(h), (i) and (j)) last in time to be fulfilled or waived by the Subscriber
(as the case may be) (or such other date as the parties and the parties to
the Other Subscription Agreements may agree in writing) (such date being
the "Completion Date") to the intent that Completion of the Subscription
and completion of the subscription of Notes under the Other Subscription
Agreements shall take place at the same time and place.
4.2 At Completion all (but not some only) of the following business shall be
transacted:-
(a) the Company shall deliver to the Subscriber
(i) a certified copy of the board resolution of the Company
approving and authorising the execution and completion of this
Agreement, the issue to the Subscriber (or as it may direct)
of the Subscription Note by the Company and the execution of
the Trust Deed;
(ii) certified copies of documentary or other evidence reasonably
satisfactory to the Subscriber showing that the Conditions
Precedent (to the extent not waived) have been fulfilled;
(iii) the Subscription Note duly issued in favour of the Subscriber
or as it may direct;
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(iv) a certified copy of the Trust Deed and the Paying and
Conversion Agency Agreement; and
(b) the Subscriber shall deliver a banker's draft issued by a licensed
or registered bank in Hong Kong in the amount of HK$300 million made
payable to the Company or such other person as the Company may
direct or effect payment by telegraphic transfer to an account
designated by the Company.
4.3 Neither the Company nor the Subscriber shall be obliged to proceed to
Completion if the Other Subscription Agreements cannot be completed at the
same time. Accordingly, if any of the Other Subscription Agreements cannot
be completed at the same time, the Company or the Subscriber may by notice
in writing to the other elect to:-
(a) defer Completion to a date not more than 28 days after the said date
(and so that the provisions of this Clause 4 (except this Clause
4.3) shall apply to Completion as so deferred); or
(b) terminate this Agreement without any liability on the part of the
Company or the Subscriber.
4.4 In the event of a termination of this Agreement pursuant to Clause 4.3,
all obligations of each of the parties under this Agreement, save for
Clauses 7 to 11, shall cease and determine and neither 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.
5. REPRESENTATIONS, WARRANTIES AND UNDERTAKINGS
5.1 The Company hereby represents, warrants and undertakes to the Subscriber
that as at the date of this Agreement and as at Completion that each of
the matters set out below will be true, complete and accurate, and not
misleading in all respects:
(a) the Company is duly incorporated and validly existing in good
standing under the laws of Bermuda and the information contained in
Recital (A) is true and accurate. The entire existing issued share
capital of the Company is listed on the Main Board of the Stock
Exchange;
(b) subject to the fulfilment of the Conditions Precedent, the Company
has the authority to enter into and perform this Agreement and that
in entering into this Agreement, the Company does not do so in
breach of any applicable legislation and this Agreement constitutes
and the Subscription Note, when issued, shall constitute valid,
binding and enforceable obligations of the Company;
(c) subject to the fulfilment of the Conditions Precedent, the Company
has full power and authority to issue the Subscription Note and
perform its obligations thereunder;
(d) the Company is not in any material breach of any rules, regulations
or
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requirements of the Stock Exchange or its listing agreement made
with the Stock Exchange and, subject to the fulfilment of the
Conditions Precedent, all necessary consents, authorisations and
approvals of any governmental agency or body required in Hong Kong
or Bermuda for or in connection with this Agreement and the
Subscription Note and the performance of the terms hereof and
thereof have been obtained or made or shall have been obtained or
made by Completion;
(e) subject to the fulfilment of the Conditions Precedent, the execution
of this Agreement and the issue of the Subscription Note shall not
infringe and shall not be contrary to any laws of Hong Kong or
Bermuda and shall not result in any breach of the terms of the
Memorandum of Association and Bye-laws;
(f) all statements of fact contained in the Announcement will when it is
issued be true and accurate in all material respects and not
misleading in any material respect 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 be truly
and honestly held as at the date of the Announcement and will 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 in any material respect;
(g) each member of the Group is duly incorporated or established and
validly existing under the laws of the place of its incorporation or
establishment with power to own its assets and has all material
authorisations and licenses to conduct its business in the manner
presently conducted nor is there any reason why any such
authorisation or license should be withdrawn or cancelled 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;
(h) the audited consolidated accounts of the Group for the financial
year ended on the Audited Accounts Date:
(i) have been prepared in accordance with generally accepted
accounting principles and the accounting standards issued by
the Hong Kong Institute of Certified Public Accountants that
were applicable for such financial year and (save and except
those accounting principles, standards and practice which only
came into effect or cease to be effective in the relevant
financial year) on a consistent basis; and
(ii) comply in all material respects with all applicable
ordinances, statutes and regulations as at the Audited
Accounts Date and show a true and fair view of the state of
affairs of the Group and of its results for the period in
question;
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(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
relevant 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;
(i) the interim accounts of the Group for the period ended on the
Interim Accounts Date:
(i) have been properly prepared in accordance with generally
accepted accounting principles and accounting standards issued
by the Hong Kong Institute of Certified Public Accountants
that were applicable for such period and (save and except
those accounting standard which only came into effect or cease
to be effective for such periods) on a consistent basis;
(ii) comply in all material aspects with all applicable ordinances,
statutes and regulations in force as at the Interim Accounts
Date;
(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
relevant 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) since the Interim Accounts Date and save as otherwise publicly
announced by the Company prior to the date hereof:-
(i) 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 may give rise to a material adverse change
in such position in the foreseeable future; or
(ii) each member of the Group has carried on its business in the
ordinary and usual course so as to maintain it as a going
concern;
(iii) no member of the Group has incurred or become subject to any
liability or obligation of a material nature except
liabilities and obligations incurred under contracts entered
into in the ordinary course of business;
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(iv) no further liability for taxation of a material nature has
arisen, or shall arise, otherwise than as a result of
activities in the ordinary course of business of the Group;
and
(v) no member of the Group has acquired, sold, transferred or
otherwise disposed of any assets of a material nature to the
Group taken as a whole or cancelled or waived or released or
discounted in whole or in part any debts or claims of a
material nature, except, in each case in the ordinary course
of business;
(k) 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, is there any investigation or enquiry by
any governmental agency or regulatory body outstanding or
anticipated against any member of the Group, in each case which can
reasonably be expected to 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 Company;
(l) the execution and delivery of, and the performance by the Company of
its 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, 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
(ii) 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
(iii) infringe, breach or violate the terms of any mortgage, deed of
trust, indenture, loan agreement, 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, in either case, which could reasonably be expected
to have a material adverse effect on the operation or the
financial position of the Company;
(m) there is no claim, litigation, arbitration, prosecution or other
legal proceedings or investigation or enquiry in progress or pending
or threatened against any member of the Group which would materially
and adversely affect the operations of the Company nor is the
Company aware of any claim or any facts
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or circumstances of a material nature which could give rise to a
claim against any member of the Group and which can reasonably be
expected to 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 Company;
(n) without the prior written consent of the Subscriber (which consent
shall not be unreasonably withheld or delayed), from the date hereof
until the issue of the Subscription Note, no act will be done other
than any issue of Shares pursuant to the Placing and the Capital
Restructuring and no circumstance will arise which will had the
Subscription Note been issued as at the date hereof (or but for
Conditions 8.3 and 8.5 would) give rise to an adjustment of the
Conversion Price under Condition 8 of the Notes;
(o) all publicly available information and records of the Company
(including information contained in announcements, annual reports,
statutory filings and registrations) are and were, when supplied or
published, true and accurate in all material respects and not
misleading in any material respect;
(p) save for options issued under any employee share option schemes, the
proposed issue of Shares pursuant to the Placing, no unissued share
capital of the Company is under option or agreed conditionally or
unconditionally to be put under option and no person has an
outstanding warrant, pre-emptive right or any other right of any
description to require shares to be allotted or issued by the
Company; and
(q) there is no outstanding indebtedness of any member of the Group
which has become payable or repayable by reason of any default of
any member of the Group and which will have a material adverse
effect on the Group as a whole or on the Company's ability to
perform any of its obligations contemplated hereunder.
5.2 The Company hereby agrees and acknowledges that the Subscriber is entering
into this Agreement in reliance on the Warranties and is entitled to treat
such representations and warranties as conditions of the Agreement.
5.3 Prior to the Completion Date, the Company undertakes to notify the
Subscriber in writing if it is aware of any breach of the Warranties made
by the Company under this Agreement and specified in Clause 5.1 (or of any
matter or event coming to its attention which shows any such Warranties to
be or to have been untrue, inaccurate or misleading) and to provide
details of such breaches (or matters or events) in such notice.
5.4 The Company undertakes to indemnify the Subscriber in full from and
against all losses, liabilities, costs and claims which the Subscriber may
suffer or incur or arising out of, or in connection with, a breach of any
of the Warranties made by the Company and which are specified in Clause
5.1.
5.5 The Subscriber hereby represents, warrants and undertakes to the Company
that as at the
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date hereof and as at Completion:
(a) the Subscriber is duly incorporated and validly existing in good
standing under the laws of Bermuda;
(b) the Subscriber has the authority to enter into and perform this
Agreement and that in entering into this Agreement, the Subscriber
does not do so in breach of any applicable legislation and this
Agreement constitutes valid, binding and enforceable obligations of
the Subscriber; and
(c) the execution and delivery of, and the performance by the Subscriber
of its obligations under this Agreement do not and will not, and
this Agreement does not and will not breach any provisions of its
memorandum or articles of association.
6. TERMINATION BY THE SUBSCRIBER
6.1 Notwithstanding anything contained in this Agreement, the Subscriber may
by prior notice to the Company terminate this Agreement at any time prior
to payment for the Subscription Note to the Company on the Completion Date
if:
6.1.1 there develops, occurs or comes into effect:
(a) any event, development or change (whether or not local,
national or international or forming part of a series of
events, developments or changes occurring or continuing
before, on and/or after the date hereof), including an event
or change in relation to or a development of an existing state
of affairs of a political, military, industrial, financial,
economic, fiscal, regulatory or other nature, whether or not
sui generis with any of the foregoing, resulting in a material
and adverse change in, or which would be expected to result in
a material and adverse change in, political, economic, fiscal,
financial, regulatory or stock market conditions in the PRC
(including Hong Kong) and/or the United States and/or the
United Kingdom;
(b) the imposition of any moratorium, suspension or material
restriction on trading in securities generally on the Stock
Exchange due to exceptional financial circumstances or
otherwise;
(c) any material and adverse change in conditions of local,
national or international securities markets;
(d) any new law or regulation or change in existing laws or
regulations or any change in the interpretation or application
thereof by any court or other competent authority in Hong Kong
or any other jurisdiction relevant to the Group which shall
materially and adversely affect the business or the financial
or trading position of the Company;
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(e) any suspension of dealings in the Shares for a period
exceeding ten (10) Business Days other than due to the
clearance of the Announcement;
(f) a change or development involving a prospective change of
taxation or exchange control (or the implementation of
exchange control) in Hong Kong or elsewhere which would
materially and adversely affect the business, financial or
trading position of the Company; or
(g) the instigation of any litigation or claim of material
importance by any third party against any member of the Group
which would materially and adversely affect the business,
financial or trading position of the Company,
and which can reasonably be expected, in the opinion of the
Subscriber acting reasonably, to have or has had a material adverse
effect upon the condition, (financial or otherwise) or earnings,
business affairs or business prospects of the Company;
6.1.2 there is any breach in of any of the Warranties made by the Company
as set out in this Agreement and specified in Clause 5.1 which has
come to the knowledge of the Subscriber or any event which has
occurred or any matter which has arisen on or after the date of this
Agreement and prior to the Completion which (a) if it had occurred
or arisen before the date hereof would have rendered any of such
Warranties untrue, inaccurate or misleading, or (b) in the opinion
of the Subscriber acting reasonably, materially and adversely
affects the financial position or business of the Company;
6.1.3 there has been a breach of or failure to perform any of the
Company's obligations in any material respect under this Agreement.
6.2 In the event that the Subscriber terminates this Agreement pursuant to
Clause 6.1, all obligations of each of the parties under this Agreement,
save for Clauses 5.4, 7, 9 and 11, 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
antecedent breach.
7. NOTICES
Any notice required or permitted to be given by or under this Agreement
shall be in writing and if to the Company or the Subscriber shall be given
by delivering it to its address or facsimile number shown below:
the Subscriber:-
Address: 8/F., Xxxx X. Centre, 00 Xxxx Xx Xxxx, Xxxx Xxxx, Xxxxxxx, Xxxx
Xxxx
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Fax: 0000 0000
Attention: Board of Director
The Company:-
Address: 7th Floor, Xxxx X. Centre, 00 Xxxx Xx Xxxx, Xxxx Xxxx, Xxxxxxx,
Xxxx Xxxx
Fax: 0000 0000
Attention: the Board of Directors
or to such other address or facsimile number in Hong Kong as the party
concerned may have been notified to the other parties pursuant to this
Clause and may be given by sending it by hand to such address or by
facsimile transmission to such facsimile number, or to such other address
or facsimile number as the party concerned may have notified to the other
parties in accordance with this Clause. In respect of notice served on the
Company, such notice shall be deemed to be served on the day of delivery
or facsimile transmission (or, if the day of delivery or transmission is
not a Business Day or if the delivery or transmission is made after 5:00
pm Hong Kong time, deemed to be served on the immediately following
Business Day), or if sooner upon acknowledgement of receipt by or on
behalf of the parties to which it is addressed. In respect of notice
served on the Subscriber, such notice shall be deemed to be served on the
Business Day after the date of delivery or facsimile transmission (or, if
the date of delivery or transmission is not a Business Day or if the
delivery or transmission is made after 5:00 pm Hong Kong time, the next
following Business Day).
8. COSTS AND EXPENSES
Each party shall bear its own costs (including legal costs) and expenses
in connection with the preparation, negotiation and settlement of this
Agreement. Capital fees or stamp duty (if any) relating to the issue and
delivery of the Subscription Note shall be borne by the Company.
9. GENERAL PROVISIONS RELATING TO AGREEMENT
9.1 Time shall be of the essence of this Agreement.
9.2 This Agreement shall be binding on and enure for the benefit of the
successors of each of the parties and shall not be assignable.
9.3 The exercise of or failure to exercise any right or remedy in respect of
any breach of this Agreement shall not, save as provided herein,
constitute a waiver by such party of any other right or remedy it may have
in respect of that breach.
9.4 Any right or remedy conferred by this Agreement on any of the parties for
breach of this Agreement (including without limitation the breach of any
representations and warranties) shall be in addition and without prejudice
to all other rights and remedies
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available to it in respect of that breach.
9.5 This Agreement (together with the other documents referred to herein
including, without limitation, the Subscription Note) constitutes the
entire agreement between the parties with respect to its subject matter
(neither party having relied on any representation or warranty made by the
other parties which is not contained in this Agreement) and no variation
of this Agreement shall be effective unless made in writing and signed by
the parties.
9.6 This Agreement supersedes all and any previous agreements, arrangements or
understanding between the parties relating to the matters referred to in
this Agreement and all such previous agreements, understanding or
arrangements (if any) shall cease and determine with effect from the date
hereof.
9.7 If at any time any provision of this Agreement is or becomes illegal, void
or unenforceable in any respect, the remaining provisions hereof shall in
no way be affected or impaired thereby.
9.8 Subject to the requirements of the Stock Exchange or any other law and
regulation, none of the parties hereto may make any press or other
announcements relating to this Agreement and the Notes without prior
consultation with the other parties hereto.
9.9 The terms of this Agreement and the Subscription Note shall remain valid
and enforceable notwithstanding the issue and redemption, conversion or
exchange of the Subscription Note to the extent that any of the terms in
this Agreement or the Subscription Note have not been fully and properly
performed or satisfied.
10. COUNTERPARTS
This Agreement may be executed by the parties hereto in any number of
counterparts and on separate counterparts, each of which when so executed
shall be deemed an original but all of which shall constitute one and the
same instrument and is binding on all parties.
11. GOVERNING LAW AND JURISDICTION
This Agreement shall be governed by and construed in accordance with the
laws of Hong Kong and each party hereby submits to the non-exclusive
jurisdiction of the courts of Hong Kong as regards any claim or matter
arising under this Agreement.
AS WITNESS whereof this Agreement has been duly executed on the date first
above written.
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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:- )
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SCHEDULE I
FORM OF THE NOTE
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Dated March 23, 2006
(1) CHINA ENTERPRISES LIMITED
(2) WING ON TRAVEL (HOLDINGS) LIMITED
---------------------------------------------
SUBSCRIPTION AGREEMENT
in respect of an issue of
2% Convertible exchangeable notes due 2011 by
WING ON TRAVEL (HOLDINGS) LIMITED
---------------------------------------------
XXXXXXXX XXXXXX
00xx Xxxxx
Xxxxxxxxx Xxxxx
00-00 Xxxxxx Xxxx
Xxxx Xxxx
Ref: DTFH/ISWY/A214-037
