24th May 2006 THE PERSONS NAMED IN SCHEDULE 1 and TRADE MEDIA HOLDINGS LIMITED CALL OPTIONS DEED RELATING TO SHARES IN HC INTERNATIONAL, INC. Herbert Smith LLP
Exhibit
4.32
XXXXXXX
XXXXX
Execution
Copy
24th
May 2006
THE
PERSONS NAMED IN SCHEDULE 1
and
TRADE
MEDIA HOLDINGS LIMITED
_________________________________________
RELATING
TO
SHARES
IN
HC
INTERNATIONAL, INC.
_________________________________________
THIS
DEED is
made
on 24th
May
2006
BETWEEN
|
1.
|
The
persons named in Schedule 1 hereof whose respective addresses
are set out
in Schedule 1 (the “Grantors”);
and
|
|
2.
|
TRADE
MEDIA HOLDINGS LIMITED,
a
company incorporated in the Cayman Islands and having its registered
address at P.O. Box 219 GT, Strathvale House, North Church Street,
Xxxxxx
Town, Grand Cayman, Cayman Islands (the “Grantee”).
|
WHEREAS
|
(A)
|
Reference
is made to the sale and purchase agreement in relation to the
Shares dated
the same date of this Deed made between IDG Technology Venture
Investment,
Inc. and the Grantee (the “Sale
and Purchase Agreement”).
|
|
(B)
|
Each
Grantor is the legal and beneficial owner of the relevant Option
Shares
(as defined below) set out in Schedule
1.
|
|
(C)
|
In
consideration of the Grantee agreeing to enter into the Sale
and Purchase
Agreement, the Grantors have agreed to grant options over the
Option
Shares to the Grantee on the terms and conditions set out in
this
Deed.
|
IT
IS HEREBY AGREED:
| 1. |
INTERPRETATION
|
| 1.1 |
In
this Deed, unless the context requires otherwise, terms used herein
shall
have the same meaning as those used in the Sale and Purchase Agreement
save that:
|
|
“Accounts”
|
means
the latest audited consolidated balance sheet and profit and
loss account
of the Company and its subsidiaries in respect of the accounting
reference
period ended on the Accounts Date;
|
|
“Accounts
Date”
|
means
31 December 2005;
|
|
“Acquisition
Price”
|
means
HK$2.2592 per Option Share;
|
|
“Beijing
Huicong”
|
means
北京慧羖国榻犼瑑有榰公司(Beijing
Huicong International Information Co., Ltd.), a sino-foreign
cooperative
joint venture company incorporated in the PRC;
|
|
“Beijing
Huicong Option
|
|
|
Equity
Interests”
|
means
the entire equity interest of the Grantor in the registered capital
of
Beijing Huicong (representing 18% of the entire registered capital
of
Beijing Huicong) and any Equity Interests for the time being
representing
the same by reason of any alteration in the registered capital
of Beijing
Huicong or any amalgamation, reorganisation or reconstruction
of Beijing
Huicong, provided that the Beijing Huicong Option Equity Interests
shall
represent not less than 18% of the total Equity Interests as
at the date
of completion of the sale and purchase of all the Beijing Huicong
Option
Equity Interests;
|
|
“Business
Day”
|
means
a day (other than a Saturday or Sunday) on which banks in Hong
Kong are
generally open for business;
|
|
“Company”
|
means
HC International, Inc, a company incorporated in Cayman
Islands;
|
|
“Completion”
|
means
completion of the sale and purchase of the Option Shares upon
each
exercise of the Options in accordance with Clause 6.2;
|
|
“Equity
Interests”
|
means
equity interests in the registered capital of Beijing
Huicong;
|
|
“Exercise
Notice”
|
means
a notice to exercise the Option(s) in the form set out in Schedule
3;
|
|
“Exercise
Price”
|
means
HK$2.2592 per Option Share which shall be payable in cash, subject
to
adjustment as provided for in Clause 3;
|
|
“Group”
|
means
the Company and its subsidiaries as at the date of this Deed;
|
|
“HC
Construction”
|
means
HC Construction Co., Ltd., a company incorporated in the PRC;
|
|
“HC
Construction Option”
|
means
the option granted by HC Construction to the Grantee whereby
the Grantee
has the right to request HC Construction to sell or to procure
the sale of
all of HC Construction's Equity Interests in Beijing Huicong
pursuant to
the terms of the HC Construction Option Deed entered into between
HC
Construction and the Grantee dated the same date as this
Deed;
|
-2-
|
“HC
Construction Option
|
|
|
Deed”
|
means
the option deed entered into by HC Construction and the Grantee
dated the
same date of this Deed in relation to the HC Construction
Option;
|
|
“Individual
Grantors”
|
means
Grantors other than IDG Technology Venture Investment, Inc.,
[*
Material omitted and filed separately with the Securities and
Exchange
Commission pursuant to a request for confidential treatment under
Rule
14-b2 of the Securities Exchange Act of 1934, as amended.];
|
|
“Options”
|
means
the options granted by the Grantors to the Grantee whereby the
Grantee has
the right to request the Grantors to sell or to procure the sale
of Option
Shares pursuant to Clauses 2.1.1
of
this Deed;
|
|
“Option
Period”
|
means
the period commencing on the date of completion of the Sale and
Purchase
Agreement and ending on the expiry of the 12-month period from
the date of
the completion of the Sale and Purchase Agreement;
|
|
“Option
Shares”
|
means
the issued Shares (details of which are set out in the third
column (from
the left) of the table in Schedule 1) which are legally and beneficially
owned by the relevant Grantors and any Shares issued to [*
Material omitted and filed separately with the Securities and
Exchange
Commission pursuant to a request for confidential treatment under
Rule
14-b2 of the Securities Exchange Act of 1934, as amended.]
under the options granted as set out in the fourth column of
Schedule 1
during the Option Period, together with any further shares, stock
or other
securities in the Company which are derived from the Option Shares
or
which are distributed by the Company in respect of the Option
Shares and
any shares, stock or other securities for the time being representing
the
same by reason of any alteration in the share capital of the
Company or
any amalgamation, reorganisation or reconstruction of the Company
up to
and including Completion;
|
-3-
|
“Pre-IPO
Share Option
|
|
|
Scheme”
|
means
the pre-IPO share option scheme adopted by the shareholders of
the Company
on 30 November 2003;
|
|
“PRC”
|
means
the People’s Republic of China;
|
|
“Shares”
|
means
ordinary shares of HK$0.10 each in the share capital of the
Company;
|
|
“Share
Option Scheme”
|
means
the post-IPO share option scheme adopted by the shareholders
of the
Company on 30 November 2003;
|
|
“Shareholders”
|
means
holders of Shares;
|
|
“Takeovers
Code”
|
means
the Codes or Takeovers and Mergers and Share Repurchases;
|
|
“Taxation”
|
means
all forms of tax, duty, rate, levy, charge or other imposition
or
withholding whenever and by whatever authority, and whether of
the PRC or
elsewhere, including (without limitation) profits tax, provisional
profits
tax, salaries tax, provisional salaries tax, property tax, provisional
property tax, interest tax, estate duty, customs and other import
duties,
excise duties, rates, stamp duty, capital duty, fees payable
on any
increase of the authorised or issued share capital of a company
or on the
allotment of any shares in a company, and any other taxes, duties,
rates,
levies, charges, imposts or withholdings corresponding to, similar
to,
replaced by or replacing any of them together with any interest,
penalty,
fine or additional sum in connection with any Taxation, and any
liability
to make a payment by way of reimbursement, recharge, indemnity,
damages or
management charge connected in any way with any Taxation and
regardless of
whether any such taxes, duties, rates, levies, charges, imposts,
withholdings, interest, penalties or fines are chargeable directly
or
primarily against or attributable directly or primarily to the
Company,
any of the subsidiaries or any other person, whether any amount
in respect
of any of them is recoverable from any other person and “Tax”
shall be construed accordingly;
|
|
“Warranties”
|
means
the warranties set out in Schedule 2; and
|
-4-
|
“Warrantors”
|
means
IDG Technology Venture Investment Inc, [*
Material omitted and filed separately with the Securities and
Exchange
Commission pursuant to a request for confidential treatment under
Rule
14-b2 of the Securities Exchange Act of 1934, as amended.]
and Xx. Xxx Xxxxxxxx.
|
| 1.2 |
In
this Deed, save where the context otherwise
requires:
|
| 1.2.1 |
a
reference to a statute or statutory provision shall include a reference
to
that statute or provision as from time to time consolidated, modified,
re-enacted or replaced by any statute or statutory provision; to
any
repealed statute or statutory provision which it re-enacts (with
or
without modification); and any subordinate legislation made under
the
relevant statute;
|
| 1.2.2 |
words
in the singular shall include the plural, and vice
versa;
|
| 1.2.3 |
the
masculine gender shall include the feminine and neutral and vice
versa;
|
| 1.2.4 |
a
reference to a person shall include a reference to a firm, a body
corporate, an unincorporated association or to a person's executors
or
administrators;
|
| 1.2.5 |
a
reference to a Clause, paragraph or Schedule (other than to a schedule
to
a statutory provision) shall be a reference to a Clause, paragraph,
or
Schedule (as the case may be) of or to this
Deed;
|
| 1.2.6 |
if
a period of time is specified and commences from a given day or
the day of
an act or event, it shall be calculated exclusive of that
day;
|
| 1.2.7 |
references
to any legal term for any action, remedy, method or judicial proceeding,
legal document, legal status, court, official or any legal concept
or
thing shall in respect of any jurisdiction other than Hong Kong
be deemed
to include what most nearly approximates in that jurisdiction to
the Hong
Kong legal term;
|
| 1.2.8 |
references
to writing shall include any modes of reproducing words in a legible
and
non-transitory form; and
|
| 1.2.9 |
the
headings in this Deed are for convenience only and shall not affect
the
interpretation of any provision of this
Deed.
|
| 1.3 |
The
designations adopted in the recitals and introductory statements
preceding
this Clause apply throughout this Deed and the
Schedules.
|
| 1.4 |
Where
any obligation in this Deed is expressed to be made, undertaken
or given
by two or more parties, they shall be jointly and severally liable
in
respect of it.
|
| 1.5 |
Where
any reference to “Completion” is made in this Deed, it shall be construed
as “Completion in relation to each exercise of the
Option”.
|
-5-
| 2. |
GRANT
OF THE OPTIONS
|
| 2.1 |
In
consideration of the Grantee agreeing to enter into the Sale and
Purchase
Agreement and, subject to the completion of the Sale and Purchase
Agreement in accordance with its terms,
|
| 2.1.1 |
the
Grantors hereby grant to the Grantee an irrevocable and, subject
to the
terms of this Deed, unconditional right to purchase all (but not
part
only) of the Option Shares at the Exercise Price (subject to adjustment
in
Clause 3)
at any time during the Option Period; or
|
| 2.1.2 |
if
the Grantee, whether by itself or through other entities, makes
a general
offer for the Shares under the Takeovers Code at a price not less
than the
Acquisition Price during the Option
Period,
|
| (i) |
each
of the Grantors shall, if required by the Grantee, accept such
general
offer in relation to the Option Shares, and shall, if required
by the
Grantee, enter into irrevocable undertakings in the form set out
in
Schedule 4 (the “Irrevocable Undertaking”) hereof to accept such general
offer;
|
| (ii) |
if
the general offer becomes unconditional, the Grantors shall receive
the
final offer price in accordance with the terms of the general
offer;
|
| (iii) |
the
Options granted under Clause 2.1.1
shall not be exercised; and
|
| (iv) |
subject
to Clause 4.4,
the Grantee shall exercise the HC Construction Option at the same
time,
|
provided
that:
|
(i)
|
the
Grantors shall not be required to execute any Irrevocable Undertaking
unless the Grantee shall have fulfilled its obligations under
Clause 4.4;
and
|
|
(ii)
|
if
such general offer does not become wholly unconditional, the
Grantee shall
have no obligation to purchase any of the Option Shares or the
Beijing
Huicong Option Equity Interests, notwithstanding any prior exercise
of
such options; and
|
| 2.1.3 |
each
of the Grantors irrevocably and unconditionally undertakes not
to sell,
transfer, dispose of, charge, encumber or otherwise deal with in
any way
the relevant Option Shares (or any interest therein) which are
legally
and/or beneficially owned by them during the Option Period, save
with the
prior written consent of the Grantee.
|
| 2.2 |
Subject
to the terms and conditions of this Deed, the Grantors shall, on
exercise
of the Options, sell or procure the sale of the Option Shares and
the
Grantee shall purchase the Option Shares, free from any claim,
options,
charge, lien, equity, encumbrance, rights of
|
-6-
pre-emption
or any other third party rights of whatsoever nature together with all
rights
attached or accruing thereto on and after date of such exercise.
| 2.3 |
All
rights (save for the voting rights) attached to the Option Shares
shall
accrue to the Grantee on and from the date of service of an Exercise
Notice on each of the Grantors and, following Completion, the Grantors
shall account to the Grantee for all dividends or other distributions
of
the Company declared or paid subsequent to the date of service
of the
Exercise Notices and shall exercise all voting and other rights
at the
direction of the Grantee.
|
| 2.4 |
The
Grantors shall use reasonable endeavours to procure that, until
the
exercise or expiry of the Options, the Company shall not, save
pursuant to
any outstanding undertaking, options granted or given by the Company
prior
to the date of this Deed (including but not limited to options
granted
under the Pre-IPO Share Option Scheme and the Share Option Scheme
as at
the date of this Deed [*
Material omitted and filed separately with the Securities and Exchange
Commission pursuant to a request for confidential treatment under
Rule
14-b2 of the Securities Exchange Act of 1934, as amended.]),
issue any shares, stock or securities or make any alteration in
its share
capital.
|
| 2.5 |
The
Grantors waive and agree to procure the waiver of any restrictions
on
transfer (including pre-emption rights) which may exist in relation
to the
Option Shares under the memorandum and/or articles of association
of the
Company or otherwise.
|
| 2.6 |
The
Grantee shall not be obliged to complete the purchase of the Option
Shares
unless all Grantors complete the sale of all the Option Shares
set out in
an Exercise Notice simultaneously and unless (save as provided
in Clause
4.4)
the sale of the Beijing Huicong Option Equity Interests pursuant
to
exercise of the HC Construction Option is completed simultaneously
with
Completion.
|
| 2.7 |
The
Grantee shall not make a general offer under the Takeovers Code
at an
offer price less than the Acquisition Price at any time during
the Option
Period. The Options under Clause 2.1.1 and the right under Clause
2.1.2
shall lapse and cease to have any effect if the Grantee, whether
by itself
or through other entities, makes a general offer for the Shares
at a price
less than the Acquisition Price during the Option
Period.
|
| 3. |
ADJUSTMENT
TO EXERCISE
PRICE
|
| 3.1 |
The
Exercise Price shall from time to time be adjusted as
follows:
|
| 3.1.1 |
Consolidation
or Subdivision:
|
If
and
whenever there shall be an alteration to the nominal value of the Shares
as a
result of consolidation or subdivision, the Exercise Price shall be adjusted
by
multiplying it by the following fraction:
A
B
-7-
where
A
= the
nominal amount of one Share immediately after such alteration; and
B
= the
nominal amount of one Share immediately before such alteration.
Such
adjustment shall become effective from the day following the record date
of such
consolidation or subdivision.
| 3.1.2 |
Bonus
issue of Shares:
|
If
and
whenever the Company shall issue any Shares credited as fully paid to the
Shareholders by way of capitalisation of profits or reserves (including
any
share premium account and/or capital redemption reserve and including any
bonus
issue), other than Shares issued in lieu of a cash dividend, the Exercise
Price
shall be adjusted by multiplying it by the following fraction:
A
B
where
|
A
=
|
the
aggregate nominal amount of the Shares in issue immediately before
such
issue; and
|
|
B
=
|
the
aggregate nominal amount of the Shares in issue immediately after
such
issue.
|
Such
adjustment shall become effective from the day following the record date
of such
issue of Shares.
| 3.1.3 |
Capital
distribution:
|
If
and
whenever the Company shall pay or make any capital distribution to the
Shareholders, or shall grant to Shareholders rights to acquire for cash
assets
of the Company, the Exercise Price shall be adjusted by multiplying it
by the
following fraction:
A
-
B
A
where:
|
A
=
|
the
Acquisition Price per Share
|
|
B
=
|
the
fair market value on the record date of such capital distribution,
as
determined in good faith by a financial adviser appointed by
the Grantee
(the “Financial
Adviser”),
of the portion of the capital distribution or of such rights
which is
attributable to per Share.
|
-8-
Such
adjustment shall become effective from the day following the record date
of such
capital distribution or grant.
| 3.1.4 |
Rights
Issues of Shares:
|
If
and
whenever the Company shall issue Shares to all or substantially all Shareholders
as a class by way of rights in each case at less than the Acquisition Price
per
Share of such issue or grant to Shareholders, the Exercise Price shall
be
calculated by using the following formula:
(A
x
B) + (C x D)
(B
+
D)
where:
A
=
the
Acquisition Price per Share
B
=
the
total
number of Shares in issue immediately before such rights issue
C
=
the
subscription price per Share of the rights issue
D
=
the
number of new Shares issued immediately after the rights issue
Such
adjustment shall become effective from the day following the record date
of the
issue of such Shares or issue or grant of such options, warrants or other
rights
(as the case may be).
| 3.1.5 |
Issues
at less than Acquisition Price:
|
If
and
whenever the Company shall issue any Shares or issues or grants options,
warrants or other rights to subscribe for or purchase Shares (save for
those to
be issued upon the exercise of options granted as at the date of this Deed
in
accordance with the Pre-IPO Share Option Scheme and the Share Option Scheme
[* Material
omitted and filed separately with the Securities and Exchange Commission
pursuant to a request for confidential treatment under Rule 14-b2 of the
Securities Exchange Act of 1934, as amended.],
in
each case at a price per Share which is less than the Acquisition Price,
the
Exercise Price shall be calculated by using the following formula:
A
+
B
C
where:
|
A
=
|
the
total market capitalisation of the Company based on the Acquisition
Price
|
|
B
=
|
the
total consideration to be received from such
issues
|
-9-
|
C
=
|
the
total number of Shares in issue immediately after such
issues
|
Such
adjustment shall become effective on the day following the record date
of the
issue of such Shares or, as the case may be, the issue or grant of such
options,
warrants or other rights.
| 3.1.6 |
Issues
of Convertible Securities:
|
if
and
whenever the Company or any Subsidiary shall issue any securities which
are
converted or exchangeable into Shares at a consideration per Share which
is less
than the Acquisition Price per Share, the Exercise Price shall be adjusted
by
multiplying it by the following fraction:
(A
+
B)
C
Where:
|
A
=
|
the
total market capitalisation of the Company based on Acquisition
Price
|
|
B
=
|
the
total consideration to be received from issue of convertible
securities
|
|
C
=
|
the
total number of Shares in issue immediately after full conversion
of the
convertible securities
|
Such
adjustment shall become effective on the day following the Record date
of the
issue or grant of such securities.
| 3.1.7 |
Other
Events:
|
|
(a)
|
If
the Grantee determines that an adjustment should be made to the
Exercise
Price as a result of one or more events or circumstances not
referred to
in this Clause, the Grantee shall at its own expense, request
the
Financial Adviser to determine (acting as expert) as soon as
practicable
what adjustment (if any) to the Exercise Price is fair and reasonable
to
take account thereof and the date on which such adjustment should
take
effect and upon such determination such adjustment (provided
that the
adjustment would result in a reduction in the Exercise Price)
shall be
made and shall take effect in accordance with such determination,
such
modification (if any) shall be made to the operation of the provisions
of
this Clause as may be advised by the Financial Adviser to be
in their
opinion appropriate to give the intended result;
and
|
| 3.2 |
Any
adjustment to the Exercise Price shall not involve an increase
in the
Exercise Price (except upon any consolidation of the Shares pursuant
to
this Clause).
|
| 3.3 |
Every
adjustment to the Exercise Price shall be certified in writing
by the
Financial Adviser. Notice of any adjustments, including the new
Exercise
Price and the effective date
|
-10-
thereof,
shall be given to the Grantee as soon as practicable after the determination
thereof. In giving any certificate or making any adjustment hereunder,
the
Financial Adviser shall be deemed to be acting as experts and not as arbitrators
and, in the absence of manifest error, their decision shall be conclusive
and
binding on the Grantee and all persons claiming through or under them
respectively.
| 4. |
EXERCISE
OF THE OPTIONS
|
| 4.1 |
The
Grantee may exercise the Options by giving an Exercise Notice to
each of
the Grantors. The Exercise Notices may be given by the Grantee
at any time
during the Option Period in respect of all (but not part only)
of the
Option Shares.
|
| 4.2 |
Subject
to Clause 4.4
hereof, the Options shall be exercised and completed simultaneously
with
the exercise of the HC Construction
Option.
|
| 4.3 |
At
any time after the completion of the Sale and Purchase Agreement
and prior
to the giving of the Exercise Notice, the Grantee (and any person
authorised by it) shall be entitled to conduct such enquiries,
investigations and due diligence reviews of the business, affairs,
operations and financial position of the Group as the Grantee in
its
absolute discretion deems necessary, desirable or appropriate and
the
Grantors shall use their reasonable endeavours to, subject to Clause
7.1
hereof and the Grantee executing a confidentiality undertaking
in favour
of the Company (if required by the Company) on substantially the
same
terms set out in Clause 7.1, procure that the Grantee and any persons
authorised by it shall on giving reasonable prior notice and during
normal
office hours be given full access to the employees, premises, plant,
machinery, books of account, records and documents of the Company
and each
of its subsidiaries as the Grantee may reasonably
request.
|
| 4.4 |
Prior
to exercise of the Options or exercise of the Purchaser's right
to require
the Grantors to accept a general offer for the Shares under Clause
2.1.2(i) as the case may be , the Grantee shall use its reasonable
endeavours to obtain from the SFC a ruling (the “SFC
Ruling”)
under the Takeovers Code as to whether exercise of the HC Construction
Option is subject to Rule 25 of the Takeovers Code and if applicable,
to
apply for SFC consent under Rule 25 of the Takeovers Code;
and
|
| 4.4.1 |
if
the SFC Ruling is that the HC Construction Option will not breach
Rule 25 of the Takeovers Code, the Options (and the right under
Clause
2.1(i)) may only be exercised if the HC Construction Option is
exercised
and completed simultaneously;
|
| 4.4.2 |
if
the SFC Ruling is that the exercise of the HC Construction Option
will breach Rule 25 of the Takeovers Code (or if there are conditions
to
consent specified in the SFC Ruling ), the Options and the right
under
Clause 2.1.2(i) shall cease to be conditional upon exercise or
completion
of the HC Construction Option and accordingly may be exercised
and
completed independently of the HC Construction
Option.
|
-11-
| 4.5 |
The
Grantee shall use its reasonable endeavours to keep the Warrantors
notified of the progress of the SFC Ruling before applying for
and after
obtaining the SFC Ruling.
|
| 4.6 |
The
fee payable to the SFC in obtaining the SFC Ruling shall be shared
as to
half by the Grantee and as to half by the
Warrantors.
|
| 4.7 |
The
Grantee has the right, but not the obligation, to give the Exercise
Notice
and/or to complete the sale and purchase of the Option
Shares.
|
| 4.8 |
After
the giving of any Exercise Notice, the Grantee and the relevant
Grantor(s)
shall enter into formal sale and purchase agreement(s) containing
such
terms as the Grantor(s) and the Grantee may mutually agree within
15 days
of the date of the Exercise Notice. If the said parties fail to
execute
formal sale and purchase agreement(s) in respect of the relevant
Option
Shares, the Grantee shall have the right at its absolute discretion
(but
not the obligation) to proceed with the purchase of the Option
Shares upon
the remaining terms of this Deed, and the Grantors shall be obliged
to
sell the Option Shares in accordance with Clause
6.
|
| 4.9 |
[*
Material
omitted and filed separately with the Securities and Exchange Commission
pursuant to a request for confidential treatment under Rule 14-b2
of the
Securities Exchange Act of 1934, as amended.]
|
| 5. |
WARRANTIES
AND UNDERTAKINGS
|
| 5.1 |
Each
Individual Grantor warrants and represents that he or she has full
power
and authority to execute and deliver this Deed and to consummate
the
transactions contemplated under this
Deed.
|
| 5.2 |
Each
Grantor (other than the Individual Grantors) warrants and represents
to
the Grantee in the terms of the Warranties in paragraph 1 of Schedule
2
severally to the extent relating to the Option Shares owned by
it as set
out in Schedule 1.
|
| 5.3 |
Each
Grantor warrants and represents to the Grantee in the terms of
the
Warranties in paragraph 2 of Schedule 2 (and in respect of paragraphs
2.1
and 2.2, severally and only to the extent relating to the Option
Shares
owned by it as set out in Schedule 1).
|
| 5.4 |
Each
Warrantor warrants and represents to the Grantee in the terms of
the
Warranties in paragraphs 3 to 5 in Schedule
2.
|
| 5.5 |
The
Grantors shall procure that the Warranties (save for the Warranties
in
paragraph 5 of Schedule 2, where relates only to the date of this
Deed,)
are true and accurate at all times up to and including Completion
by
reference to the facts and circumstances then subsisting and, for
this
purpose, such Warranties shall be deemed to be repeated at all
times up to
and including Completion as if any express or implied reference
therein to
the date of this Deed shall be replaced by a reference to the time
at
which such Warranty is deemed to be
repeated.
|
-12-
| 5.6 |
The
Grantee shall be entitled to claim both before and after Completion
that
any of the Warranties is or was untrue or misleading or has or
had been
breached even if the Grantee discovered or could have discovered
on or
before entering into this Deed and before Completion that the Warranty
in
question was untrue or misleading or had been breached and Completion
shall not in any way constitute a waiver of any of the Grantee's
rights.
|
| 5.7 |
The
Grantee shall not, prior to the exercise or expiry of the Option
Period
and (if appropriate) Completion, transfer, dispose of, charge,
pledge or
encumber in any way its interests in any of the Option
Shares.
|
| 5.8 |
The
Warrantors shall use reasonable endeavours to procure that until
the
exercise or expiry of the Options and (if appropriate) Completion
and save
with the prior consent of the Grantee (which consent shall not
be
unreasonably withheld or delayed):
|
|
(A)
|
no
alterations will be made to the memorandum and/or articles of
association
of the Company and no regulations or resolutions inconsistent
with them
will be adopted;
|
|
(B)
|
the
Company will not make any substantial change in the nature of
its
business, which shall continue to be carried on in the ordinary
course;
|
|
(C)
|
the
Company will not enter into any transaction that is not in the
normal and
ordinary course of conducting its business nor enter into any
transaction
which is not on arm's length terms;
and
|
|
(D)
|
no
resolution will be passed for the voluntary winding-up of the
Company.
|
| 5.9 |
The
Warrantors undertake to indemnify and keep indemnified at any time
and
from time to time the Grantee on demand from and against all claims,
liabilities, losses, costs and expenses which the Grantee may suffer
or
incur or which may be made against the Grantee either before or
after
Completion in respect of any breach of the undertakings or indemnities
in
this Clause 5.
|
| 5.10 |
The
total liability of each of the Grantors under this Deed shall not
exceed
the aggregate price for the Option Shares to be received by the
respective
Grantors .
|
| 5.11 |
Each
of the Grantors shall have no liability under this
Deed:
|
| 5.11.1 |
unless,
in the case of any particular claim, the amount thereof shall exceed
HK$1,000,000; or
|
| 5.11.2 |
until
the aggregate amount of all valid claims which could otherwise
be made
under this Deed shall exceed
HK$3,000,000,
|
at
which
time all such valid claims shall become payable.
| 5.12 |
The
liability of each of the Grantors to the Grantee hereunder
shall:
|
-13-
| 5.12.1 |
in
relation to any of the Warranties on Taxation, cease upon expiry
of 7
years from the date of Completion; and
|
| 5.12.2 |
in
relation to any of the other Warranties or other indemnities, cease
upon
the earlier of the expiry of 2 years from the date of
Completion.
|
| 6. |
COMPLETION
|
| 6.1 |
Completion
of the sale and purchase of the relevant Option Shares in relation
to the
exercise of the Options in full shall, subject to Clause 4.4,
take place simultaneously with the completion of the sale and purchase
of
the Beijing Huicong Option Equity Interests under the HC Construction
Option Deed at such time not later than 30 days after the date
of the
Exercise Notice or 5 Business Days after the exercise of the HC
Construction Option becomes unconditional (excluding such conditions
relating to the sale and purchase of the Option Shares), whichever
is the
later, and at such place in Hong Kong as may be specified in the
Exercise
Notice or otherwise notified by the
Grantee.
|
| 6.2 |
At
Completion, the following business shall be
transacted:
|
| 6.2.1 |
the
relevant Grantor(s) shall deliver or cause to be delivered to the
Grantee
duly executed instrument of transfer(s) and sold notes in respect
of the
relevant Option Shares as set out in the Exercise Notice in favour
of the
Grantee or its specified nominee accompanied by the share certificate(s)
for the relevant Option Shares or, where applicable, procure its
designated CCASS Participant to give irrevocable delivery instruction
to
effect a book entry settlement of the Option Shares in accordance
with the
General Rules and the Operational Procedures to the credit of the
stock
accounts of the CCASS Participants of the Grantee in accordance
with the
instructions provided to the Grantor by the Grantee prior to
Completion;
|
| 6.2.2 |
the
Grantee shall pay to the Grantors by electronic funds transfer
to the
Grantors’ respective bank accounts (as notified to the Grantee prior to
such payment) an amount equal to the aggregate Exercise Price for
such
Option Shares; and
|
| 6.2.3 |
the
Grantors shall procure that the directors of the Company shall
approve the
transfers of the Option Shares for registration and the entry of
the
transferee(s) in the register of members of the Company, in each
case
subject only to the transfers being subsequently presented duly
stamped.
|
| 6.3 |
If
any of the Grantors defaults (“Defaulting
Grantor”)
in transferring the relevant Option
Shares:
|
| 6.3.1 |
the
Grantee shall be deemed to be the duly appointed agent and attorney
of the
Defaulting Grantor with full irrevocable power to execute, complete
and
deliver in the name of and on behalf of the Defaulting Grantor
a sale and
transfer of the relevant Option Shares to the Grantee or its
nominee;
|
-14-
| 6.3.2 |
the
Grantee may request the Company to enter the name of the Grantee
or its
nominee in the register of members as the holder of the relevant
Option
Shares; and
|
| 6.3.3 |
the
Grantee shall forthwith pay the aggregate Exercise Price into a
separate
bank account in the Grantee's name and, when the Defaulting Grantor
shall
deliver up its certificate or certificates for the relevant Option
Shares
to the Grantee, the Grantors shall thereupon be paid the aggregate
Exercise Price, without interest and less any sums owed to the
Grantee by
the Grantors.
|
| 7. |
GENERAL
|
| 7.1 |
Each
party (including their representatives and authorised persons)
shall, and
shall use their reasonable endeavours to procure the Company that
it
shall, at all times keep confidential and not directly or indirectly
make
or allow any disclosure or use to be made of any information in
its
possession or otherwise obtained pursuant to this Deed relating
to any
other party, the Company and each of its subsidiaries or to the
existence
or subject matter of this Deed, except:
|
| 7.1.1 |
to
the extent required by law or any regulatory
body;
|
| 7.1.2 |
where
the information is already disclosed in the public domain otherwise
than
pursuant to or arising from a breach by the Grantee or any Grantor
(including their representatives and authorised persons) of its
confidentiality undertaking under this Clause;
or
|
| 7.1.3 |
with
the consent of the other party (which consent shall not be unreasonably
withheld).
|
| 7.2 |
Any
announcement or circular required to be disclosed or issued by
law or any
regulatory body (including the SFC and the Stock Exchange) shall
only be
made or issued after consultation with the other parties and after
taking
into account the reasonable requirements of the other parties as
to the
contents of such announcement or circular.
No
party may assign (whether absolutely or by way of security and
whether in
whole or in part), transfer, mortgage, charge or otherwise dispose
in any
manner whatsoever of the benefit of this Deed and no party may
sub-contract or delegate in any manner whatsoever its performance under
this Deed except with the prior written consent of the other
parties.
|
| 7.3 |
In
the event of an assignment pursuant to Clause 7.2, the original
contracting party remains liable to procure the performance of
the
obligations under the agreement by the
assignee.
|
| 7.4 |
Each
of the parties confirms that this Deed, represents the entire
understanding, and constitutes the whole agreement, in relation
to its
subject matter and supersedes any previous agreement between the
parties
with respect thereto and, without prejudice to the generality of
the
foregoing, excludes any warranty, condition or other undertaking
implied
at law or by custom.
|
-15-
| 7.5 |
If
any provision or part of this Deed is void or unenforceable due
to any
applicable law, it shall be deemed to be deleted and the remaining
provisions of this Deed shall continue in full force and
effect.
|
| 7.6 |
The
Grantors shall after exercise of the Options execute all such deeds
and
documents and do all such things as the Grantee may reasonably
require for
perfecting the transactions intended to be effected under or pursuant
to
this Deed and for giving the Grantee the full benefit of the provisions
of
this Deed, including vesting in the Grantee the legal and beneficial
title
to the Option Shares.
|
| 7.7 |
The
rights and remedies of the parties shall not be affected by the
giving of
any indulgence by any other party or by anything whatsoever except
a
specific waiver or release in writing and any such waiver or release
shall
not prejudice or affect any other rights or remedies of the
parties.
|
| 7.8 |
This
Deed may be executed in any number of counterparts and by the parties
to
it on separate counterparts, each of which when executed and delivered
shall be an original but all the counterparts together constitute
one
instrument.
|
| 7.9 |
No
variation of this Deed (or any of the documents referred to in
it) shall
be valid unless it is in writing (which, for this purpose, does
not
include e-mail) and signed by or on behalf of each of the parties
to this
Deed.
|
| 7.10 |
The
parties shall pay their own costs in connection with the preparation
and
negotiation of this Deed and any matter contemplated by it (including
but
not limited to their respective stamp duty, SFC transaction levy
and Stock
Exchange trading fee, if any).
|
| 7.11 |
No
delay or failure by a party to exercise or enforce (in whole or
in part)
any right provided by this Deed or by law shall operate as a release
or
waiver, or in any way limit that party's ability to further exercise
or
enforce that, or any other, right. A waiver of any breach of any
provision
of this Deed shall not be effective, or implied, unless that waiver
is in
writing and is signed by the party against whom that xxxxxx is
claimed.
|
| 7.12 |
The
parties acknowledge and agree that in the event of a default by
any party
in the performance of their respective obligations under this Deed,
the
non-defaulting parties shall have the right to obtain specific
performance
of the defaulting party's obligations. Such remedy to be in addition
to
any other remedies provided under this Deed or at
law.
|
| 8. |
NOTICES
|
| 8.1 |
A
notice (including any approval, consent or other communication)
in
connection with this Deed and the documents referred to in
it:
|
| 8.1.1 |
must
be in writing;
|
| 8.1.2 |
must
be left at the address of the addressee or sent by pre-paid first
class
post (airmail if posted to or from a place outside Hong Kong) to
the
address of the addressee or sent by facsimile to the facsimile
number of
the addressee in each case
|
-16-
which
is
specified in this Clause in relation to the party to whom the notice is
addressed, and marked for the attention of the person so specified, or
to such
other address or facsimile number in Hong Kong and/or marked for the attention
of such other person, as the relevant party may from time to time specify
by
notice given in accordance with this Clause.
| 8.1.3 |
The
relevant details of each party at the date of this Deed
are:
|
Grantors
[*
Material
omitted and filed separately with the Securities and Exchange Commission
pursuant to a request for confidential treatment under Rule 14-b2 of the
Securities Exchange Act of 1934, as amended.]
Grantee
Address:
c/o 22nd Floor, Vita Tower, 00 Xxxx Xxxx Xxxx Xxxx, Xxxxxxxx, Xxxx
Xxxx
Fax:
(000) 0000 0000
Attention:
Legal Department
| 8.1.4 |
for
the avoidance of doubt, must not be sent by electronic
mail.
|
| 8.2 |
In
the absence of evidence of earlier receipt, any notice shall take
effect
from the time that it is deemed to be received in accordance with
Clause
8.3
below.
|
| 8.3 |
Subject
to Clause 8.4
below, a notice is deemed to be received:
|
| 8.3.1 |
in
the case of a notice left at the address of the addressee, upon
delivery
at that address;
|
| 8.3.2 |
in
the case of a posted letter, on the third day after posting or,
if posted
to or from a place outside Hong Kong, the seventh day after posting;
and
|
| 8.3.3 |
in
the case of a facsimile, on production of a transmission report
from the
machine from which the facsimile was sent which indicates that
the
facsimile was sent in its entirety to the facsimile number of the
recipient.
|
| 8.4 |
A
notice received or deemed to be received in accordance with Clause
8.3
above on a day which is not a Business Day or after 5 p.m. on any
Business
Day, according to local time in the place of receipt, shall be
deemed to
be received on the next following Business
Day.
|
| 8.5 |
A
notice given or document supplied to [*
Material omitted and filed separately with the Securities and Exchange
Commission pursuant to a request for confidential treatment under
Rule
14-b2 of the Securities Exchange Act of 1934, as amended.]
in accordance
|
-17-
with
the
details specified for the Grantors above shall be deemed to have been given
or
supplied to all the Grantors to whom such notice is addressed.
| 8.6 |
Each
party undertakes to notify the other parties by notice served in
accordance with this Clause if the address specified herein is
no longer
an appropriate address for the service of
notices.
|
| 9. |
GOVERNING
LAW
|
| 9.1 |
This
Deed shall be governed by, and construed in accordance with, Hong
Kong
law.
|
| 9.2 |
Each
party irrevocably agrees for the benefit of the Grantee that the
Courts of
Hong Kong shall have non-exclusive jurisdiction in relation to
any claim,
dispute or difference concerning this Deed and any matter arising
therefrom.
|
| 9.3 |
Each
party irrevocably waives any right that it may have to object to
an action
being brought in those Courts, to claim that the action has been
brought
in an inconvenient forum, or to claim that those Courts do not
have
jurisdiction.
|
| 9.4 |
The
submission to the jurisdiction of the Courts of Hong Kong shall
not (and
shall not be construed so as to) limit the right of the Grantee
to bring
legal proceedings in any other court of competent jurisdiction
including
without limitation the courts having jurisdiction by reason of
the
Grantee's domicile. Legal proceedings by the Grantee in any one
or more
jurisdictions shall not preclude legal proceedings by it in any
other
jurisdiction, whether by way of substantive action, ancillary relief,
enforcement or otherwise.
|
| 9.5 |
The Grantee
hereby appoints Publishers Representatives Limited, with correspondence
address at c/o 22nd
Floor, Vita Tower, 00 Xxxx Xxxx Xxxx Xxxx, Xxxxxxxx, Xxxx Xxxx
(Attention:
Legal Department), as its agent to accept service of legal process
on its
behalf. The Grantee hereby irrevocably agrees that if its
process agent ceases to have an address in Hong Kong or ceases
to act as
its process agent, it shall appoint a new process agent acceptable
to the
other Parties and will deliver to each of the other parties to
this
Agreement within 14 days a copy of written acceptance of appointment
by
the new process agent.
|
| 9.6 |
Each
Grantor hereby irrevocably appoints [* Material
omitted and filed separately with the Securities and Exchange Commission
pursuant to a request for confidential treatment under Rule 14-b2
of the
Securities Exchange Act of 1934, as amended.]
as its/her/his agent to accept service of legal process on its/her/his
behalf. Each Grantor irrevocably agrees that if its/her/his process
agent
ceases to have an address in Hong Kong or ceases to act as its/her/his
process agent, it/she/he shall appoint a new process agent acceptable
to
the other Parties and will deliver each of the other parties to
this Deed
within 14 days a copy of written acceptance of appointment by the
new
process agent.
|
| 9.7 |
Subject
to Clauses 9.5
and 9.6,
each party agrees that without preventing any other mode of service,
any
document in an action (including, but not limited to, any writ
of summons
or other originating process or any third or other party notice)
may be
served on any party by being delivered to or left for that party
at its
address for service of notices under
|
-18-
Clause
8
and each
party undertakes to maintain such an address at all times in Hong Kong
and to
notify the other party in advance of any change from time to time of the
details
of such address in accordance with the manner prescribed for service of
notices
under Clause 8.
IN
WITNESS
of which
the parties have executed this document as a Deed on the date first mentioned
above.
-19-
EXECUTION
PAGE
[*
Material
omitted and filed separately with the Securities and Exchange Commission
pursuant to a request for confidential treatment under Rule 14-b2 of the
Securities Exchange Act of 1934, as amended.]
SIGNED
SEALED and DELIVERED
by
)
)
漓凡生XXX
XXXXXXXX
)
[*
Material
omitted and filed separately with the Securities and Exchange Commission
pursuant to a request for confidential treatment under Rule 14-b2 of the
Securities Exchange Act of 1934, as amended.]
|
SEALED
with the Common Seal of
|
)
|
|
|
and
SIGNED
by
|
)
|
|
|
for
and on behalf of
|
)
|
|
|
IDG
TECHNOLOGY VENTURE
|
)
|
|
|
INVESTMENT,
INC.
|
)
|
|
|
in
the presence of:
|
)
|
|
[*
Material
omitted and filed separately with the Securities and Exchange Commission
pursuant to a request for confidential treatment under Rule 14-b2 of the
Securities Exchange Act of 1934, as amended.]
|
SEALED
with the Common Seal of
|
)
|
|
and
SIGNED
by
|
)
|
|
for
and on behalf of
|
)
|
|
TRADE
MEDIA HOLDINGS LIMITED
|
)
|
|
in
the presence of:
|
)
|
-20-
