Exhibit 1.1
REORGANIZATION AGREEMENT AMENDMENT (NO. 1)
This Reorganization Agreement Amendment (No. 1) constitutes a binding
agreement (this "Agreement") dated December 2, 2005 between Guangxi Yuchai
Machinery Company Limited ("Yuchai"), China Yuchai International Limited ("CYI")
and Xxxxxxx Investments Limited ("Xxxxxxx").
WHEREAS
I. Yuchai, CYI and Xxxxxxx have on April 7, 2005 entered into a Re-organization
Agreement (the "Reorganization Agreement") in furtherance of the terms of the
Agreement dated July 19, 2003 entered into between Guangxi Yuchai and CYI (the
"July 19 Agreement").
II Mr. Xxx Xxxx was appointed the Chairman of the Board of Directors of Guangxi
Yuchai Machinery Group Company in May, 2005.
III. At the 8th meeting of the 4th Board of Directors of Yuchai held on October
28th, 2005, Guangxi Yuchai Machinery Group Company recommended that Mr. Xxx Xxxx
be appointed as a member of the Board of Directors of Yuchai and the Chairman of
the Board of Yuchai. At the meeting, the Board of Directors of Yuchai resolved
to put the nomination of Xxx Xxxx to the shareholders of Yuchai for approval at
the Interim Shareholders Meeting of Yuchai to be held on 2 December 2005.
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IV. The parties expressed, in the Reorganization Agreement, a non-legally
binding desire to complete the Restructuring Exercise, by 30 September 2005, the
parties now recognise that the Restructuring Exercise would take more time than
anticipated to complete.
V. Under Clause 1.8 of the Reorganization Agreement, the amount of US$20,000,000
became due for payment by Yuchai to CYI on 24 June 2005 but remains unpaid.
VI The parties have recognized that circumstance have changed since the
execution of the Reorganization Agreement and have agreed that they will enter
into negotiations on the Reorganization Agreement on the basis of a
comprehensive consideration of the benefits and interests of each party and in
consideration thereof have agreed to extend the term of the Reorganization
Agreement pending the completion of these negotiations.
IN CONSIDERATION of the mutual agreements contained herein, and intending
to be legally bound hereby, and subject to all applicable laws and regulations,
the parties hereto agree as follows:
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INTERPRETATION
1.1 All terms and references used in this Agreement which are defined or
construed in the Reorganization Agreement but are not otherwise defined or
construed in this Agreement shall have the same meaning and construction in
the Reorganization Agreement.
1.2 Any reference in this Agreement to 'THE REORGANIZATION AGREEMENT' shall
include the Reorganization Agreement, as from time to time amended,
modified or supplemented, and any document which amends, modifies or
supplements the Reorganization Agreement.
1.3 The headings in this Agreement are inserted for convenience only and shall
be ignored in construing this Agreement. Unless the context otherwise
requires, words denoting the singular number only shall include the plural
and vice versa.
1.4 This Agreement has been written in the English and Chinese languages. The
parties agree that (a) the English language version of this Agreement shall
be binding upon the parties, (b) the Chinese language version of this
Agreement has been inserted as a translation of the English language
version of this Agreement and shall not be binding upon the parties, and
(c) in the event that there are any inconsistencies between the English and
Chinese language versions of this Agreement, the English language version
of this Agreement will prevail.
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2. AMENDMENTS TO THE REORGANIZATION AGREEMENT
The parties hereby agree that the following provisions of the
Reorganization Agreement shall be amended in the following manner:-
2.1 Clause 1.8 of the Reorganization Agreement
Clause 1.8 of the Reorganization Agreement shall be deleted in its entirety
and replaced with the following text:
"In consideration of CYI's agreement to ensure that Xxxxxxx will under the
terms of the share exchange in Clause 2.4 receive no less than 6,354,911
Newco shares, Yuchai shall on the earlier of (i) the date of the completion
of the transactions described in Clause 2.6 and (ii) 31 December 2006 pay
CYI an amount of US$20,000,000 in cash into such bank account as CYI shall
notify Yuchai in writing."
2.2 Clause 2.10 of the Reorganization Agreement
Clause 2.10 of the Reorganization Agreement shall be deleted in its
entirety. The parties agree that such deletion shall be effective on and
from 27 October 2005.
2.3 Clause 4 of the Reorganization Agreement
The words "31 December 2005" appearing in the third line of Clause 4 of the
Reorganization Agreement shall be deleted and substituted by the words "31
December 2006 or such other date as the parties may agree in writing".
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3. INCORPORATION
3.1 The parties agree that this Agreement constitutes the effective and binding
amendment of the Reorganization Agreement.
3.2 The parties agree that the due date for the performance of the
Reorganization Agreement shall be adjusted according to this Agreement. The
due date set by the Reorganization Agreement shall be completely and
unconditionally replaced by the due date set by this Agreement as the final
due date. Until 31 December 2006, all parties shall not undertake any claim
for compensation due to any action or matter arising from the
implementation of the Reorganization Agreement. The Parties hereby agree
that if the completion of the transactions set out in clause 2.6 of the
Re-organization Agreement is not achieved by 31 December 2006, the Parties
shall be entitled to claim all compensation pursuant to the Re-organization
Agreement.
3.3 The Reorganization Agreement and this Agreement shall be read and construed
as one document and this Agreement shall be considered to be part of the
Reorganization Agreement and, without prejudice to the generality of the
foregoing, where the context so allows, references in the Reorganization
Agreement to 'this Agreement' or 'this Reorganization Agreement', howsoever
expressed, shall be read and construed as references to the Reorganization
Agreement as amended, varied, modified or supplemented by this Agreement
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4. COSTS AND EXPENSES
Each party shall bear its own expenses, including legal fees, incurred in
connection with the preparation, review, negotiation and execution of the
terms of this Agreement.
IN WITNESS WHEREOF, each of the parties hereto has caused this Agreement to be
executed on its behalf as of the day and year first above written.
GUANGXI YUCHAI MACHINERY COMPANY LIMITED CHINA YUCHAI INTERNATIONAL LIMITED
Signed: /s/ Xxxxx Xxxxxxx Signed: /s/ Teo Xxxx Xxxx
Name: Xxxxx Xxxxxxx Name: Xxx Xxxx xxxx
XXXXXXX INVESTMENTS LIMITED
Signed: /s/ Qin Xxxx Xxxx
Name: Qin Xxxx Xxxx
The party named below acknowledges and accepts as of the day and year first
above written the contents of this Agreement and irrevocably undertakes to use
reasonable efforts to cause Yuchai to fulfill its obligations under this
Agreement.
GUANGXI YUCHAI MACHINERY GROUP COMPANY
Signed: /s/ Xxxxx Xxxxxxx
Name: Xxxxx Xxxxxxx
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