ASSIGNMENT AND ASSUMPTION AGREEMENT
Dated as of July 10,2000
AMONG
PACIFIC CENTURY CYBERWORKS LIMITED,
CABLE & WIRELESS HKT LIMITED
AND
CITIBANK, N.A.
ASSIGNMENT AND ASSUMPTION AGREEMENT, dated as of the 10th day of
July, 2000, among PACIFIC CENTURY CYBERWORKS LIMITED, a company incorporated
under the laws of Hong Kong, SAR ("PCCW"), CABLE & WIRELESS HKT Limited (flkla
Hong Kong Telecommunications Limited), a company organized and existing under
the laws of Hong Kong, SAR ("HKT'), and Citibank, N.A., a national banking
association organized under the laws of the United States of America (the
"Depositary");
WHEREAS, HKT, the Depositary and holders from time to time of HKT
American depositary receipts are parties to that certain Deposit Agreement dated
as of December 6, 1996 (the "Original Deposit Agreement");
WHEREAS, as of the date of effectiveness of the Scheme between HKT
and the holders of HKT Shares (the "Effective Date"), HKT will become a
wholly-owned subsidiary of the Doncaster Group Limited, which is an indirect
wholly-owned subsidiary of PCCW;
WHEREAS, pursuant to the Scheme, (i) all of the outstanding HKT
Shares are being cancelled on the Effective Date in exchange for shares, par
value HKSO.05 per share, of PCCW ("Shares") and/or cash and (ii) accordingly all
of the HKT Shares deposited pursuant to the Original Deposit Agreement and held
by the Depositary's nominee as of the Scheme Record Date are being replaced by
the appropriate number of Shares (after giving effect to any cash consideration
paid to holders of HKT ADRs);
WHEREAS, HKT and PCCW desire that, effective on the Effective Date,
PCCW shall assume the obligations of HKT under the Original Deposit Agreement
and desire in furtherance thereof to amend and restate the Original Deposit
Agreement in the form set forth in Exhibit A hereto (as so amended and restated
as specified in Section 1.2 hereof, the "Deposit Agreement");
WHEREAS, Section 6.01 of the Original Deposit Agreement provides
that the form of Receipts and any provisions of the Original Deposit Agreement
may be amended by agreement between HKT and the Depositary in any respect which
they may deem necessary or desirable without the consent of the Holders;
WHEREAS, the Depositary is willing to act as the Depositary for the
ADR facility upon the terms set forth in the Deposit Agreement as amended and
restated hereby;
WHEREAS, all things necessary to make this Assignment and Assumption
Agreement a valid and binding agreement according to its terms have been done;
NOW, THEREFORE, THIS ASSIGNMENT AND ASSUMPTION AGREEMENT WITNESSETH
that, for and in consideration of the premises and of the covenants contained in
the Deposit Agreement and in this Assignment and Assumption Agreement and for
other good and valuable consideration the receipt and sufficiency of which are
hereby acknowledged, it is mutually covenanted and agreed as follows:
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ARTICLE 1.
ASSUMPTION; AMENDMENT AND RESTATEMENT
Section 1.1. Assignment and Assumption of Obligations by PCCW. Effective
on the Effective Date, (a) HKT does hereby assign all of its rights, duties and
obligations under the Original Deposit Agreement to PCCW, and (b) PCCW, the
successor in interest ofHKT, does hereby expressly assume the rights, duties and
obligations of HKT under the Original Deposit Agreement. Thereafter, HKT shall
have no further rights, and shall be relieved of all duties and obligations,
under the Original Deposit Agreement.
Section 1.2. Amendment and Restatement. In furtherance of the assignment
and assumption pursuant to Section 1.1 above, effective on the Effective Date,
the Original Deposit Agreement shall be replaced, superseded and restated in its
entirety in the form attached hereto as Exhibit A, with such further amendments
as PCCW and the Depositary may agree, and the "Deposit Agreement" shall mean the
Deposit Agreement as so amended and restated; provided that, any amendment which
shall prejudice any substantial existing rights of Holders of HKT ADSs shall not
become effective as to outstanding Receipts until the later of the Effective
Date and ninety days after notice is given thereof.
Section 1.3. Issuance of PCCW ADSs. Effective on the Effective Date, PCCW
hereby authorizes Citibank, N.A., as Depositary, to issue Receipts in connection
with the consummation ofPCCW's offer to acquire the entire issued share capital
ofHKT pursuant to the Scheme (the "Offer") and from time to time thereafter in
accordance with the terms and conditions of the Deposit Agreement as amended and
restated.
ARTICLE 2.
TERMINATION
Section 2.1. Termination. Upon the termination, expiration or withdrawal
of the Offer by PCCW, or if the Offer shall lapse in the circumstances set forth
in the Composite Document relating to the Offer, dated May 26, 2000, this
Assignment and Assumption Agreement and the amended and restated Deposit
Agreement shall terminate, and the Original Deposit Agreement shall continue in
full force and effect.
ARTICLE 3.
MISCELLANEOUS PROVISIONS
Section 3.1. Further Assurances. PCCW will, upon request by the
Depositary, execute and deliver such further instruments and do such further
acts as may reasonably be necessary or proper to carry out more effectively the
purposes of this Assignment and Assumption Agreement.
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Section 3.2. Other Terms of the Deposit Agreement. Subject to the
amendment and restatement and the assignment and assumption provided for in
Article 1 hereof, the Deposit Agreement shall continue in full force and effect
in accordance with the provisions thereof and the Deposit Agreement as amended
and restated is in all respects hereby ratified and confirmed.
Section 3.3. Terms Defined. Except as otherwise expressly stated herein,
all terms defined elsewhere in the Deposit Agreement shall have the same
meanings when used herein.
Section 3.4. Governing Law. This Assignment and Assumption Agreement shall
be governed by, and construed in accordance with, the laws of the State of New
York applicable to agreements made or instruments entered into and, in each
case, performed in such state.
Section 3.5. Multiple Counterparts. This Assignment and Assumption
Agreement may be executed in any number of counterparts, each of which so
executed shall be deemed to be an original for all purposes, but all such
counterparts shall together be deemed to constitute but one and the same
instrument.
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IN WITNESS WHEREOF, the parties hereto have caused this Assignment
and Assumption Agreement to be duly executed, all as of the day and year first
above written.
PACIFIC CENTURY CYBERWORKS
LIMITED
By: /s/ Xxxx Tin Fan, Xxxxxxx
---------------------------
Name: Xxxx Tin Fan, Xxxxxxx
Title: Deputy Chairman
CABLE & WIRELESS HKT LIMITED
By: /s/ Xxxxxx X. Xxxx
---------------------------
Name: Xxxxxx X. Xxxx
Title: Company Secretary
CITIBANK, N.A.,
as Depositary
By: /s/ Xxxxx X. XxXxxxxxx
---------------------------
Name: Xxxxx X. XxXxxxxxx
Title: Vice President
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