FOLANGSI CO., LTD
基石投资协议
2023年10月26日
FOLANGSI CO., LTD
(廣州佛朗斯股份有限公司)
及
柳工机械香港有限公司及
海通国际资本有限公司及
海通国际证券有限公司
目录
条款 | 页次 |
1. 定义及诠释 | 2 |
2. 投资 | 6 |
3. 交割条件 | 8 |
4. 交割 | 9 |
5. 对投资者的限制 | 10 |
6. 确认、声明、承诺及保证 | 12 |
7. 终止 | 20 |
8. 公告及保密 | 20 |
9. 通知 | 21 |
10. 一般事项 | 23 |
11. 规管法律及司法权区 | 25 |
12. 副本 | 26 |
附表1 投资者股份 | 附表1 |
附表2投资者详情 | 附表2 |
本协议（本“协议”）于2023年10月26日由以下各方之间作出：
(1) 廣州佛朗斯股份有限公司，于2007年12月5日在中国注册成立的有限公司并于 2016年11月25日完成股份制改革，注册办事处位于xxxxxxxxxxxxxxxx000x（ “本公司”）;
(2) 柳工机械香港有限公司，在香港注册成立的公司，其注册办事处位于香港湾仔168号xxxxxxxxxx00x（“xxx”）；
(0) xxxxxx有限公司，位于xxxxxxx0 xxxxxxx一期3001-3006室及3015-3016 室（“海通国际资本”或“独家保荐人”）; 以及
(4) 海通国际证券有限公司，位于xxxxxx000 xxxx大廈22 樓（“海通證券”
或“整体协调人”）。
而：
(A) 本公司已提交申请将其股份（定义见下文）在联交所（定义见下文）以全球发售
（“全球发售”）方式上市，包括：
(i) 本公司公开发售1,213,600 股H股份（可予调整）以供香港公众人士认购（“香港公开发售”）；及
(ii) 本公司根据证券法S规例（定义见下文）于美国境外向投资者（包括向香港专业及机构投资者配售）及/或根据144A条（定义见下文）或证券法其他登记豁免规定在美国境内向合资格机构买家（“合资格机构买家”）提呈有条件配售 10,922,400 股H股份（可予调整及视乎超额配股权行使与否而定）（“国际发售”）。
(B) 海通国际资本担任全球发售的独家保荐人，海通国际证券担任全球发售的整体协调人。
(C) 作为国际发售的一部分，投资者拟认购投资者股份（定义见下文），其须遵守并按本协议所载条款及条件基准行事。
兹约定如下：
1. 定义及诠释
1.1 于本协议（包括其附表及说明），除文义另有所指外，下列各词语及表达具有以下涵义：
“联属人士” 就特定人士或实体而言，除文义另有所指外，指直接或间接透过一间或多间中间公司控制或受控于或共同受控于指定人士或实体的任何人士或实体。就本释义而言，“控制”一词（包括“控制”、“受控于”及“共同受控于”）指直接或间接拥有指示或促使指示某人士的管理及政策的权力，不论是否透过拥有具投票权的证券、以合约方式或其他途径；
“总投资金额” 指相等于发售价乘以投资者股份数目的金额；
“批准” 具有第6.2(f)条所赋予的涵义；
“联系人/紧密联系人” 具有上市规则赋予该词的涵义，而“联系人/紧密联系人” 须据此诠释；
“经纪佣金” 指根据上市规则附录八7(1)段的规定，按总投资金额的1%计算的经纪佣金；
“营业日” 指香港持牌银行一般向香港公众开放进行正常银行业务及联交所开放证券交易的任何日子（星期六、星期日及香港公众假日除外）；
“中央结算系统” 指由香港中央结算有限公司设立及运作的香港中央结算及交收系统；
“交割” 指根据本协议的条款及条件完成对投资者股份的认购；
“公司条例” 指香港法例第622章《公司条例》（经不时修订、补充或以其他方式修改）；
“公司（清盘及杂项条文）条例” 指香港法例第32章《公司（清盘及杂项条文）条例》（经不时修订、补充或以其他方式修改）；
“关连人士／核心关连人士” 除文义另有所指外，具有上市规则赋予该词的涵义，而“关连人士/核心关连人士”须据此诠释 ;
“合约（第三者权利）条例” 指香港法例第623章《合约（第三者权利）条例》，（经不时修订、补充或以其他方式修改）；
“控股股东” 除文义另有所指外，具有上市规则赋予该词的涵义，而“控股股东”须据此诠释；
“延迟交付日期” 待香港公开发售及国际发售的包销协议订立及成为无条件且并未终止的前提下，指整体协调人根据第4.3条须知会投资者的较后日期；
就相关股份而言，“处置”包括直接或间接；
(i) 发售、质押、抵押、出售、按揭、借出、设立、转让、出让或以其他方式处置任何法定或实益权益（包括设立或同意设立或出售或授出或同意出售或授出任何购股权或合约以购买、认购、借出或以其他方式转让或处置、任何认股权证或权利以购买、认购、借出或以其他方式转让或处置或购买或同意购买任何期权、合约、认股权证或出售权）（不论直接或间接，有条件或无条件），或在相关股份或任何其他可转换、可行使或可交换该等相关股份的证券的法定或实益权益中建立任何性质的第三方权利，或代表有权收取该等相关股份、或订约进行上述行为（不论直接或间接，有条件或无条件）；或
(ii) 订立任何掉期或其他安排，以向另一名人士全部或部分转让相关股份的任何实益所有权或其中任何权益或该等相关股份或该等其他证券的所有权或其中任何权益的任何经济效益或后果；或
(iii) 直接或间接订立与上文(i)及(ii)所述的任何交易具有相同经济效果的任何其他交易；或
(iv) 协议或协定或公开宣称有意订立上文(i)、(ii) 及(iii)所述任何交易，于各情况下，无论上文(i)、(ii) 及(iii)所述任何交易将透过交付相关股份或该等可转换或可行使或可交换相关股份的其他证券的方式、以现金或以其他方式结算；“处置”须据此诠释；
“全球发售” 具有说明(A) 所赋予的涵义；
“政府机关” 指任何政府、监管或行政委员会、董事会、组织、机关或代理、或任何证券交易所（包括但不限于联交所及证监会）、自律组织或其他非政府监管机关、或任何法院、司法机关、特别法庭或仲裁处，在各种情况下均不论属国家、中央、联邦、省、州、地区、市、地方、国内、国外或超国家性质;
“本集团” 指本公司及其附属公司；
“港元” 指香港法定货币；
“香港” 指中华人民共和国香港特别行政区；
“香港公开发售” 具有说明(A) 所赋予的涵义；
“香港联交所”或“联交所” 指香港联合交易所有限公司；
“H股份” 指公司每股供认购、以港币交易及拟在香港联交所上市（在完成招股书中所述的股份分拆）面值0.25人民币的境外上市外資普通股；
“获弥偿方” 具有6.5条所赋予的涵义，而如文义所指，“获弥偿方” 指彼等任一方；
“国际发售” 具有说明(A) 所赋予的涵义；
“国际发售通函” 指预期将由本公司就国际发售向潜在投资者（包括投资者）发行的最终发售通函；
“投资者股份” 指投资者根据本协议的条款及条件在国际发售中认购的H股份数目，乃按照附表1计算并由本公司及整体协调人厘定；
“法律” 指所有相关司法权区内任何政府机关（包括但不限于联交所及证监会）的所有法律、法令、立法、条例、规则、法规、指引、意见、通告、通函、指令、要求、命令、判决、判令或裁定；
“交易征费” 于任何情况下，指占总投资金额0.0027%的证监会交易征费（或于上市日期的现行交易征费），占总投资金额0.00565%的联交所交易费（或于上市日期的现行交易费）及占总投资金额0.00015% 香港会计及财务汇报局交易征费；
“上市日期” 指H股份首次于联交所主板上市的日期；
“上市规则” 指香港联合交易所有限公司证券上市规则以及联交所上市决策、指引及其他规定（均经不时修订或补充）；
“禁售期” 具有第5.1条所赋予的涵义；
“发售价” 指根据全球发售提呈发售或出售股份时的每股H股份最终港元价格
（不包括经纪佣金及交易征费）；
“超额配股权” 具有国际发售通函所赋予的涵义；
“各订约方” 指名列本协议的订约方，而如文义所指，“订约方” 指彼等任何一方；
“中国” 指中华人民共和国，仅就本协议而言，不包括中国香港、澳门特别行政区及台湾；
“初步发售通函” 指预期将由本公司就国际发售向潜在投资者（包括投资者）发行的初步发售通函（经不时修订或补充）；
“专业投资者” 具有证券及期货条例附表一第1部所赋予的涵义；
“招股章程” 指本公司就香港公开发售于香港刊发的最终的招股章程；
“公开文件” 指就国际发售刊发的初步发售通函及国际发售通函，本公司就香港公开发售刊发的招股章程及申请表格以及本公司就全球发售可能刊发的该等其他文件及公告（均经不时修订或补充）；
“合资格机构买家” 具有说明(A) 所赋予的涵义；
“监管机构”具有第6.2(h)条所赋予的涵义；
“相关股份” 指投资者根据本协议认购的投资者股份，以及根据任何供股、资本化发行或其他形式的资本重组从投资者股份衍生的本公司任何股份或其他证券抑或权益（无论该等交易将以现金或其他方式结算）；
“证券法” 指《1933年美国证券法》（经不时修订、补充或以其他方式修改）及根据该法律颁布的规则及规例；
“证监会” 指香港证券及期货事务监察委员会；
“证券及期货条例” 指香港法例第571章《证券及期货条例》（经不时修订、补充或以其他方式修改）；
“附属公司” 具有公司条例所赋予的涵义；
“美国” 指美利坚合众国、其领土及属地、任何州以及哥伦比亚特区；
“美元” 指美国法定货币；及
“美籍人士” 具有证券法S规例所赋予的涵义。
1.2 于本协议，除文义另有所指外：
(a) 凡提述“条”、“分条”或“附表”指本协议中的条、分条或附表；
(b) 索引、条及附表标题仅供说明之用，并不影响本协议的构成及诠释；
(c) 附表构成本协议的组成部分，并具有与本协议正文中明确规定的相同效力及作用，对本协议的任何提述均应包括附表；
(d) 单数应包含复数，反之亦然，且表示一种性别的词语应包含另一种性别；
(e) 凡提述本协议或其他文书将包括对任意一项的任何修改及取代；
(f) 凡提述法令或法律条文将包括：
(i) 经不时综合、修改、补充、修订、重新制定或被任何法令或法律条文所取代的法令及法律条文；
(ii) 已废除予以重新制定的任何法令或法律条文（不论是否有修改）；及
(iii) 据此订立的任何附属条例；
(g) 凡提述“法规”包括任何政府、政府间或超国家机构、机构、部门或任何监管、自我监管或其他机构或组织的任何法规、规则、官方指令、意见、通知、通告、命令、请求或指南（无论是否具有法律效力）；
(h) 除另有指明者外，所提述日期及时间分别指香港日期及时间；
(i) 凡提述一名“人士”，将包括个人、企业、公司、法人、非法人组织或机构、政府、州或国家机构、合营企业、协会或合伙，不论是否具有独立的法人资格；
(j) 凡提述 “包括”、“包含”及“包括有”须分别理解为包括但不限于、包含但不限于及包括有但不限于；及
(k) 凡就香港以外任何司法权区的任何行动、济助、方法或司法程序、法律文书、法律地位、法院、官员或其他法律概念或事件提述任何法律术 语，视为包括该司法权区最类近香港的法律术语。
2. 投资
2.1 待下文第3条所述的条件达成（或获各订约方共同豁免，惟第3.1(a)、3.1(b)、3.1(c)及3.1(d)条所载条件不得获豁免以及第3.1(e)条下的条件仅可获本公司、整体协调人及独家保荐人共同豁免除外）以及在本协议的其他条款及条件的规限下：
(a) 投资者将于上市日期根据国际发售（并作为国际发售的一部分）及通过整体协调人及／或其联属人士（以其作为国际发售相关部分国际承销商的国际代表的身份）按发售价认购投资者股份，及本公司将于上市日期根据国际发售（并作为国际发售的一部分）及通过整体协调人及／或其联属人士
（以其作为国际发售相关部分国际承销商的国际代表的身份）按发售价向投资者发行、配发及配售投资者股份，以及整体协调人将于上市日期根据
国际发售（并作为国际发售的一部分）及通过整体协调人及／或其联属人士（以其作为国际发售相关部分国际承销商的国际代表的身份）按发售价向投资者分配及／或交付（视情况而定）或促使按发售价向投资者分配及
／或交付（视情况而定）投资者股份；及
(b) 投资者将根据第4.2条就投资者股份支付总投资金额、经纪佣金及交易征费。
2.2 投资者可选择于不迟于上市日期前三个工作日以书面通知本公司、整体协调人及独家保荐人的形式，透过投资者的全资附属公司认购投资者股份，而该投资者为专业投资者且为（i）并非美籍人士而且并非为任何美籍人士的利益而获取投资者股份；（ii）位于美国境外以及（iii）根据证券法S规例以离岸交易的形式认购投资者股份，惟：
(a) 投资者须促使该全资附属公司于该日期向本公司、整体协调人及独家保荐人提供书面确认，同意受投资者于本协议所作相同协议、xx、担保、承诺、声明及确认的约束，而投资者于本协议所作的协议、xx、担保、承诺、声明及确认须视作由投资者为其本身及代表该全资附属公司而做出；及
(b) 投资者(i)无条件及不可撤回地向本公司、整体协调人及独家保荐人保证该全资附属公司妥为准时履行及遵守其于本协议项下的所有协议、责任、承诺、保证、xx、弥偿、同意、声明、确认及契诺；及(ii)承诺根据第6.5条按要求充分有效地对各获弥偿方进行弥偿及保持弥偿。
投资者在第2.2条下的责任构成直接、主要及无条件的责任，以按要求向本公司、整体协调人或独家保荐人支付该全资附属公司有责任根据本协议支付的款项，并按要求立即履行该全资附属公司在本协议下的任何责任，而无需本公司、整体协调人或独家保荐人首先对该全资附属公司或任何其他人士采取措施。除文义另有规定者外，投资者一词须根据本协议诠释以涵盖该全资附属公司。
2.3 待根据第2.2条妥为缴付款项后，投资者股份在根据第4.4条交付予投资者时应为全额缴足股款，并不设有任何购股权、留置权、押记、按揭、抵押、索赔、衡平权益、产权负担和其他第三方权利，并与当时发行并将于香港联交所上市的H股份享有同等权益。
2.4 本公司及整体协调人可全权决定交付全部或部分投资者股份须根据第4.3条于延迟交付日期进行。
2.5 本公司及整体协调人（代表自身及全球发售的资本市场中介人、承销商）可按彼等可能协定的方式厘定发售价。投资者股份的确切数目将由本公司及整体协调人根据附表1最终厘定，且除非出现明显错误，否则该厘定将为决定性并对投资者具有约束力。
3. 交割条件
3.1 投资者根据本协议认购，以及本公司与整体协调人根据第2.1条发行、配发、配售、分配及╱或交付（视情况而定）或促使发行、配发、配售、分配及╱或交付（视情况而定）投资者股份之责任，仅于下列条件于交割当日或之前获各订约方逹成
或共同豁免后方可作实（第3.1(a)、3.1(b)、3.1(c)及3.1(d)条所载条件不可获豁免 且第3.1(e)条所载条件仅可获本公司、整体协调人及独家保荐人共同豁免者除外）：
(a) 就香港公开发售及国际发售订立包销协议，且于该等包销协议订明之时间及日期前生效及成为无条件（根据彼等各自之原条款或其后由各订约方协定豁免或修改），而上述包销协议概无被终止；
(b) 发售价已根据包销协议及协议各方就全球发售将予订立的定价协议协定；
(c) 联交所上市委员会授予H股份（包括投资者股份以及其他适用豁免及批准）上市及买卖，且有关批准、许可或豁免于H股份在联交所开始买卖之前并 未被撤销；
(d) 概无任何政府机构实施或颁布任何法例而禁止根据全球发售或本协议拟进行之交易之完成，且并无主管司法权区法院之现行命令或禁制令阻止或禁止有关交易之完成；及
(e) 投资者根据本协议之相关声明、保证、承诺及确认（于本协议日期并将于上市日期）在各重大方面属真实，准确，完整，且并无误导或欺骗性，投资者亦无严重违反本协议。
3.2 倘第3.1条所载任何条件（第3.1(a)、3.1(b)、3.1(c)、3.1(d)条所载条件不可获豁免且第3.1(e)条所载条件仅可获本公司、整体协调人及独家保荐人共同豁免者除外）于本协议日期后第一百八十(180)日（或本公司、投资者、整体协调人及独家保荐人可能书面协定的其他日期）或之前尚未获各订约方逹成或共同豁免，或全球配售未按第3.1(a)条所载的香港公开发行及国际配售承销协议所述的方式完成，投资者购买，以及本公司与整体协调人发行、配发、配售、分配及╱或交付（视情
况而定）或促使发行、配发、配售、分配及╱或交付（视情况而定）投资者股份
之责任应告终止，且投资者根据本协议向其他方支付的任何款项将由有关其他方于商业可行的情况下尽快及无论如何不迟于本协议终止之日起计30日且不计息偿还予投资者，以及本协议将告终止及失效，且本公司、整体协调人及／或独家保荐人的所有义务及责任将告终止；惟根据本第3.2条终止本协议不得有损于任何一方就有关终止时或之前的本协议条款向其他方享有或承担的累计权利或责任。为免生疑问，本条款中的任何内容均不得解释为赋予投资者在直至本条款规定的上述日期期间内纠正违反投资者根据本协议作出的xx、保证、承诺及确认的任何行为的权利。
3.3 投资者承认，无法确保全球发售将会完成或不会延迟或终止，倘全球发售因任何原因未能于预期日期及时间完成或根本不能完成，本公司、整体协调人或独家保
荐人毋须对投资者承担任何责任。倘全球发售因任何原因于预期日期及时间未能完成或根本不能完成或发行价格未能依照公开文件中所示价格区间，投资者特此放弃向本公司、整体协调人及／或独家保荐人或彼等各自的联属人士、董事、高级职员、雇员、代理、顾问、联系人、合伙人及代表提出任何索赔或诉讼的任何权利（如有）。
4. 交割
4.1 受第3条及本第4条所限，投资者将根据国际发售并作为国际发售的一部分，通过整体协调人（及／或其联属人士）（作为国际发售相关部分国际承销商的国际代表）以发售价认购投资者股份。因此，投资者股份将于国际发售完成的同时或于延迟交付日期（如适用）按本公司及整体协调人厘定的时间及方式完成认购。
4.2 投资者应于上市日期的三(3)个完整营业日前（无论投资者股份于何时交付）以港元向整体协调人通知投资者的有关港元银行账户足额缴足总投资金额连同相关经纪佣金及交易征费，以即时可用资金不作任何扣减或抵销电汇至整体协调人于上市日期前不迟于上市日期的五(5)个完整工作日前书面通知投资者的有关港元银行账户，该通知应包括（其中包括）付款账户详情及投资者根据本协议应付总金额。
4.3 倘整体协调人全权决定所有或任何部分投资者股份应于上市日期之后的日期
（“延迟交付日期”）交付，整体协调人应(i)不迟于上市日期前两(2)个营业日以书面方式知会投资者将延迟交付的投资者股份数量；及(ii)不迟于实际延迟交付日期前两(2)个营业日、以书面方式知会投资者延迟交付日期（惟延迟交付日期不得迟于超额配股权可能获行使的最后一日后的三(3)个营业日）。由整体协调人作出的有关决定将为最终决定并对投资者具有约束力。倘投资者股份将于延迟交付日期交付予投资者，投资者仍应按照第4.2条的规定支付投资者股份。
4.4 根据第4.2条投资者股份作出如期支付后，投资者股份交付予投资者（视情况而定）应透过中央结算系统，将投资者股份直接存入中央结算系统以记存于由投资者于不迟于上市日期前或根据第4.3条所厘定的延迟交付日期前三(3)个营业日以书面方式知会整体协调人的有关中央结算系统投资者户口持有人账户或中央结算系统股票账户。
4.5 在不损害第4.3条的情况下，交付及支付投资者股份可能亦以本公司、整体协调人、独家保荐人及投资者可能书面同意的其他任何方式进行，惟交付投资者股份应不迟于超额配股权可能获行使的最后一日后三(3)个营业日。
4.6 倘未按本协议规定的时间或方式接收或结算总投资金额及相关经纪佣金及交易征费（无论全部或部分），本公司、整体协调人及独家保荐人各自绝对酌情保留其全权终止本协议的权利，在该情况下，所有本公司、整体协调人及独家保荐人的所有义务及责任应终止（但不得损害本公司、整体协调人及独家保荐人对投资者因其未能履行其于本协议项下的义务而提出的任何索赔要求的权利）。投资者
应按税后基准对因投资人未能按照第6.5条足额缴足总投资额和经纪佣金及交易征费而对各获弥偿方因此遭受或招致的任何损失和损害进行赔偿，使其免受损害并获得完全赔偿。
4.7 本公司、整体协调人及独家保荐人概不就未能或延迟履行其于本协议项下的责任负责，以及倘因超出本公司、整体协调人或独家保荐人（视情况而定）控制的情况（包括但不限于天灾、水灾、战争（不论是否宣战）、恐怖活动、国家、国际或地区紧急状态、灾难、危机、经济制裁、爆炸、地震、火山爆发、严重交通中断、政府运作崩溃、公众骚乱、政治动荡、敌对行动爆发或升级、疾病或流行病爆发或升级（包括但不限于SARS、H5N1、MERS及2019冠状病毒病）、火灾、暴乱、叛乱、民变、罢工、停工、其他行业行动、一般电力或其他供应故障、撞机、技术故障、意外或机械或电气故障、计算机故障或任何汇款系统故障、禁运、劳资纠纷及任何现有或未来法律的变更、政府活动的任何现有或未来行动或其他类似情况）而妨碍或延迟履行其于本协议项下的责任，则本公司、整体协调人及独家保荐人各自有权终止本协议。
5. 对投资者的限制
5.1 在第5.2条的规限下，投资者（为其本身及代表其全资附属公司（倘投资者股份由该全资附属公司持有））同意、与本公司、整体协调人及独家保荐人立约及向其承诺，未经本公司、整体协调人及独家保荐人各自的事先书面同意，投资者不会
（不论直接或间接）在自上市日期（包括当日）起计六(6)个月期间（ “禁售期＂）任何时间，直接或间接(i)以任何方式出售任何相关股份或于持有任何相关股份的任何公司或实体的任何权益，包括可转换、可交换、可行使上述证券或附有权利获取上述证券的任何证券或持有任何相关股份的任何公司或实体的任何权益，或同意、订立协议或公开宣布有意订立该项交易；(ii)允许其本身进行最终实益拥有人层面的控制权变更（定义见证监会颁布的《公司收购、合并及股份回购守则》）；或(iii)直接或间接订立与上述任何交易具有相同经济效果的任何交易；及倘于禁售期后任何时间出售（或以协议或合约，或意向公告出售）任何相关股份，则投资者将确保有关出售将遵守所有适用法律。
5.2 第5.1条所载事宜不会妨碍投资者向投资者的任何全资附属公司转让全部或部分相关股份，前提是在所有情况下：
(a) 于该转让前，有关全资附属公司作出书面承诺（以令本公司、整体协调人及独家保荐人满意的条款向彼等及以彼等为受益人）同意，及投资者承诺促使有关全资附属公司将受投资者于本协议项下的责任约束（包括第5条对投资者施加的限制），犹如有关全资附属公司本身受有关责任及限制所规限；
(b) 有关全资附属公司应被视为已作出第6条规定的相同承认、声明、确认、承诺及保证；
(c) 投资者及投资者的有关全资附属公司应被视为其持有的所有相关股份的投资者，且应共同及个别承担本协议施加的所有负债及责任；
(d) 倘于禁售期届满前任何时间，有关全资附属公司不再或将不再为投资者的全资附属公司，其应（及投资者应促使有关附属公司应）立即及在任何情况下于不再为投资者的全资附属公司前向投资者或投资者的另一家全资附属公司悉数及有效转让其持有的相关股份，且应发出或投资者应促使发出书面承诺（以令本公司、整体协调人及独家保荐人满意的条款向彼等及以彼等为受益人），投资者应促使有关附属公司同意受投资者于本协议项下的责任约束（包括第5条对投资者施加的限制），以及据此作出相同承认、声明及保证，犹如有关全资附属公司本身受有关责任及限制所规限，且应共同及个别承担本协议施加的所有负债及责任；及
(e) 有关附属公司(i) 并非亦不会成为美籍人士或为任何美籍人士的利益而获取投资者股份；(ii) 位于及将位于美国境外以及(iii) 将根据证券法S规例以离岸交易的形式认购相关股份。
5.3 投资者同意及承诺，除非经本公司、整体协调人及独家保荐人事先书面同意，投资者及其紧密联系人于本公司已发行股本总额的持股总额（直接及间接）将低于本公司全部已发行股本的10%（或上市规则不时就“主要股东”的定义规定的有关其他百分比）。
5.4 投资者同意，投资者按自营投资基准持有本公司股本，且在本公司、整体协调人及／或独家保荐人的合理要求下，向本公司、整体协调人及独家保荐人提供合理证据，表明投资者按自营投资基准持有本公司股本。投资者不应，且促使其控股股东、联系人及实益拥有人不会通过累计投标过程申请认购或购买全球发售的H股份（投资者股份除外）或申请认购香港公开发售的H股份。
5.5 投资者及其联属人士、董事、监事、高级职员、雇员或代理并无接纳或订立，且不得与本公司、本公司控股股东、本集团任何其他成员公司或其各自的联属人士、董事、监事（倘适用）、高级职员、雇员或代理订立任何不符合或违反上市规则
（包括联交所指引信HKEX-GL51-13或香港监管机构颁布的书面指引）的安排或协议（包括任何附函）。
5.6 根据任何适用法律的要求，在禁售期结束后的任何时间，如果投资者进行任何处置、同意或签订合同、或公开宣布有意进行任何处置，未经本公司、独家保荐人及整体协调人事先书面同意不得故意与直接或间接从事与公司业务竞争或潜在竞争的业务的其他人，或与该公司的控股公司、子公司或联营公司的任何其他实体进行此类交易；但本条款中的任何内容均不得限制投资者不知道H股份受让人的情况下通过联交所的场内交易（无论是通过经纪人还是代理人）或联交所二级市场的自动匹配交易处置投资者股份。
6. 确认、声明、承诺及保证
6.1 投资者向本公司、整体协调人及独家保荐人各方声明、保证、承诺、承认、同意及确认：
(a) 本公司、整体协调人、独家保荐人及彼等各自的联属人士、董事、高级职员、雇员、代理、顾问、联系人、合伙人及代表并无作出声明及发出保证或承诺或担保将进行或完成全球发售（在任何特定时期内或根本未作出）或发售价将在公开文件所载的指示性范围内，及倘全球发售因任何原因延迟、并无进行或未完成，或倘发售价并未在公开文件所载的指示性范围内，彼等将不对投资者承担任何责任；
(b) 本协议及投资者的背景资料及本协议各订约方的关系及安排须于公开文件及全球发售的其他营销及路演资料中披露及投资者将在公开文件及有关其他营销及路演资料及公告中被提及，尤其是，本协议将为须根据公司
（清盘及杂项条文）条例及上市规则就全球发售提交香港监管部门及于联交所及公司网站列示并可供公众查阅的重要合约；
(c) 发售价将完全根据全球发售的条款及条件厘定，而投资者并无权利对此提出任何异议；
(d) 投资者将透过整体协调人及/或彼等联属人士以彼等作为国际发售的国际承销商的国际代表身份认购投资者股份；
(e) 投资者将根据本公司章程或本公司其他组成或宪章文件、适用法律及本协议的条款及条件接受投资者股份；
(f) 投资者股份数目可受国际发售及香港公开发售之间的H股份根据上市规则第18项应用指引或联交所指引信 HKEX-GL-91-18或联交所可能批准的有关其他比例及本公司不时适用的比例重新分配的影响；
(g) 整体协调人、独家保荐人及本公司可全权酌情调整投资者股份的数目分配，以符合上市规则第8.08(3)条的规定，其规定于上市日期由公众人士持有的 证券中，由持股量最高的三名公众股东实益拥有的百分比，不得超过50%；
(h) 于订立本协议的时间前后或于其后任何时间但于国际发售结束前，本公司、整体协调人及/或独家保荐人与一名或以上其他投资者已订立，或可能及/ 或拟订立类似投资的协议，作为国际发售的一部分；
(i) 本公司、整体协调人、独家保荐人及彼等各自的附属公司、代理、董事、雇员或联属人士或参与全球发售的任何其他方均毋須就收购投资者股份或与投资者股份的任何交易有关的任何税项、法律、货币或其他经济或其他后果负责；
(j) 投资者股份并无亦不会根据美国证券法或任何州或其他司法权区的证券法登记，且不得在美国直接或间接或向任何美籍人士或代其或为其利益发
售、转售、抵押或以其他方式转让，惟根据实际登记声明或获豁免登记或进行不受限于证券法登记规定的交易或有关司法权区适用法律允许以外的其他司法权区除外；
(k) 其了解本公司、整体协调人、独家保荐人或国际发售的任何国际承销商概无作出证券法任何豁免有关随后再发售、转售、抵押或转让投资者股份的任何有效性声明；
(l) 除根据第5.2条外，倘投资者股份由一家附属公司持有而有关附属公司于禁售期届满前继续持有任何投资者股份，投资者应促使该附属公司在相关期内继续为投资者的全资附属公司及继续遵守本协议条款及条件；
(m) 其已收到（及可能于未来收到）可能构成投资者投资（及持有）投资者股份的重大非公开资料及/或证券及期货条例所定义的内幕消息，及其将：(i)严格按须知基准仅就评估其对投资者股份的投资或法律规定的其他方式不向其联属人士、附属公司、董事、高级职员、雇员、顾问、代理、合伙人及代表（“获授权接收人”）以外的任何人士披露有关资料，直至有关资料在投资者、或其任何获授权接收人无违约的情况下成为公开资料；(ii)尽全力确保获授权接收人（根据第6.1(o)条获披露有关资料的人士）按严格须知基准并无向获授权接收人以外的任何人士披露有关资料；及(iii)不会及将确保获授权接收人（根据第6.1(o)条获披露有关资料的人士）并无以可能导致违反美国、香港、中国或有关买卖的任何其他适用司法权区证券法（包括任何内幕交易条文）的方式购买、出售或买卖或以其他方式直接或间接买卖H股份或本公司或其联属人士或联系人的其他证券或衍生工具；
(n) 按机密基准提供予投资者及/或其代表的本协议、招股章程草拟本及初步发售通函草拟本所载资料及按机密基准可提供予（不论是书面还是口头）投资者及/或其代表的任何其他材料不得转载、披露、传阅或分发予任何其他人士，及所提供的有关资料及材料可予更改、更新、修订及完成，及投资者于决定是否投资投资者股份时不应倚赖有关资料及材料。为免生疑问:
(i) 可提供予投资者、及/或其的代表的招股章程草拟本及初步发售通函草拟本或任何其他材料概不构成于不允许进行要约、招揽或销售的任何司法权区收购、购买或认购任何证券的邀请或要约或招揽，及可提供予（不论是书面还是口头）投资者及/或其代表的招股章程草拟本及初步发售通函草拟本或任何其他材料所载资料不论如何概不构成任何合约或承诺的基准；
(ii) 不得以可提供予（不论是书面还是口头）投资者及/或其代表的初步发售通函草拟本或招股章程草拟本或任何其他材料的基准作出或收取认购、收购或购买任何H股份或其他证券的要约或邀请；及
(iii) 可提供予（不论是书面还是口头）或交付予投资者的初步发售通函草拟本或招股章程草拟本或任何其他材料可于订立本协议后进行进一步修订，及投资者于决定是否投资投资者股份时不应倚赖有关资料及投资者谨此同意进行有关修订（如有）并豁免有关修订权（如有）；
(o) 本协议并不共同或个别构成美国或有关要约属不合法的任何其他司法权区的证券销售要约；
(p) 投资者、任何其联属人士或代其行事的任何人士概无从事或将从事股份的任何定向销售工作（定义见证券法S规例）或就投资者股份进行任何形式的一般招揽或一般宣传（定义见证券法D规例）或以任何方式参与公开发售（定义见证券法第 4(2) 条）；
(q) 其已获提供其视为必要或适宜的所有资料，以评估收购投资者股份的价值及风险，并已获机会咨询本公司、整体协调人或联系保荐人其视为必要或适宜的有关本公司、投资者股份或其他有关事宜并取得回复，以评估收购投资者股份的价值及风险，本公司已向投资者或其代理提供投资者或投资者代表所需的投资投资者股份有关的所有文件及资料；
(r) 于作出投资决定时，投资者已及将仅倚赖本公司发出的国际发售通函内所载资料，而并无倚赖本公司、整体协调人及/或独家保荐人（包括彼等各自的董事、高级职员、雇员、顾问、代理、代表、联系人、合伙人及联属人士）或彼等的代表于有关日期或之前可能向投资者提供的任何其他资料，及本公司、整体协调人、独家保荐人及彼等各自的董事、高级职员、雇员、顾问、代理、代表、联系人、合伙人及联属人士概无就国际发售通函未载入的任何有关资料或材料的准确性或完整性作出任何声明及担保或承诺，及本公司、整体协调人、独家保荐人及彼等各自的董事、高级职员、雇员、顾问、代理、代表、联系人、合伙人及彼等的联属人士并无或将不会因彼等使用或倚赖有关资料或材料或国际发售通函未载入的任何资料而对投资者或其董事、高级职员、雇员、顾问、代理、代表、联系人、合伙人及联属人士负责；
(s) 整体协调人、独家保荐人、其他资本市场中介人、其他承销商及彼等各自的董事、高级职员、雇员、附属公司、代理、联系人、联属人士、代表、合伙人及顾问概无就投资者股份的价值、认购、购买或有关要约，或就本公司或其附属公司的业务、经营、前景或状况、财务或其他或任何有关其他事宜或与之相关的事宜向其作出任何保证、声明或推荐意见；及除最终国际发售通函所提供者外，本公司及其董事、高级职员、雇员、附属公司、
代理、联系人、联属人士、代表及顾问概无就投资者股份的价值、认购、购买或有关要约，或就本公司或其附属公司的业务、经营、前景或状况、财务或其他或任何有关其他事宜或与之相关的事宜向投资者作出任何保证、声明或推荐意见；
(t) 投资者将就其出售（直接或间接）任何相关股份（其就此为或将为（直接或间接）实益拥有人或在招股章程中列示为实益拥有人）根据本协议、上市规则及任何适用法律遵守不时适用的所有限制（如有）；
(u) 其已自行对本公司及投资者股份以及本协议所订明的认购投资者股份的条款进行调查，并已取得其认为必要、适当或以其他方式符合其本身关注
（包括税项、监管、财务、会计、法律、货币及有关投资投资者股份及投资者适合性的其他事宜）的自身独立意见（包括税项、监管、财务、会计、法律、货币及其他事宜），并无倚赖，且无权倚赖本公司或任何整体协调人、独家保荐人、资本市场中介人或承销商或其代表就全球发售取得或进行的任何意见（包括税项、监管、财务、会计、法律、货币及其他事宜）、尽职审查或调查或承销商其他意见或安慰（视情况而定）及本公司、整体协调人、独家保荐人或彼等各自的联系人、联属人士、董事、高级职员、雇员、顾问或代表概无就任何税项、法律、货币或收购或买卖投资者股份的其他经济或其他后果负责；
(v) 其了解现时并无投资者股份的公开市场，及本公司、整体协调人及独家保荐人概无保证存在投资者股份的公开市场；
(w) 倘全球发售因任何原因未完成，本公司、整体协调人、独家保荐人或彼等的任何有关联系人、联属人士、董事、高级职员、雇员、顾问、代理或代表对投资者或其附属公司并无责任；
(x) 本公司及整体协调人将全权酌情更改或调整(i)根据全球发售将发行的H股份数目；(ii)根据香港公开发售及国际发售分别将发行的H股份数目；及 (iii)对联交所可能批准及遵照适用法律提呈发售的H股份数目、发售价范围及最终发售价作出其他调整或重新分配；
(y) 投资者已同意支付总投资金额及相关经纪佣金及交易征费应于上市日期的三(3)个完整营业日前；
(z) H股份的任何交易须遵守适用法律，包括根据证券及期货条例、上市规则、证券法及任何主要证券交易所的任何其他适用法律买卖股份的限制；及
(aa) 就相关股份而言，未遵守本协议限制进行的发售、出售、质押或其他转让将不获本公司认可。
6.2 投资者向本公司、整体协调人及独家保荐人进一步声明、保证及承诺：
(a) 其已根据注册成立所在地法律妥为注册成立并有效存续，且并未提交有关其破产、清算或清盘的呈请、作出有关命令或通过有关有效决议案；
(b) 其拥有合法权利及授权以拥有、使用、出租及经营其资产并以现时开展业务的方式开展其业务；
(c) 其拥有全面权力、授权及资格并已采取一切所需行动（包括向任何政府及监管机构或第三方取得一切必要同意、批准及授权）以签立及交付本协议、订立及进行本协议项下拟订交易及履行本协议项下责任；
(d) 本协议已获投资者妥善授权、签立及交付，构成可依据本协议条款对投资者强制执行的合法、有效且具有约束力的义务；
(e) 其已采取且于本协议有效期内将采取一切必要步骤以履行其于本协议项下的责任及执行本协议及本协议项下拟订交易并遵守一切相关法律；
(f) 任何适用于投资者的任何相关法律规定须由投资者取得的有关根据本协议认购投资者股份的一切同意、批准、授权、许可及登记（“批准”）均已取得，且具有十足效力及效用，概无批准已撤销或受任何尚未达成或履行的先决条件所规限；
(g) 投资者签立及交付本协议及履行本协议并认购或收购（视情况而定）投资者股份及完成本协议项下拟订交易不会违反或导致投资者违反(i)投资者的章程或(ii)投资者就本协议项下拟订交易须遵守或因投资者认购或收购
（视情况而定）投资者股份而分别适用于投资者的任何司法权区的法律或 (iii)对投资者具有约束力的任何协议或其他文书或(iv)对投资者拥有司法管辖权的任何政府机关的任何判决、命令或法令；
(h) 其已并将遵守与认购投资者股份有关的所有司法权区的一切适用法律，包 括在适用机关或机构或证券交易所（“监管机构”）要求的期限内直接或间 接通过本公司、整体协调人及╱或独家保荐人或促使或安排他人向联交所、
证监会及其他政府、公开、货币或监管机关或机构或证券交易所提供并同
意及赞同披露有关资料（包括投资者股份的最终实益拥有人（如有）及╱或最终负责作出认购相关指示的人士的身份资料）。投资者进一步授权本
公司、整体协调人、独家保荐人或其各自的联属人士按有关监管机构要求向有关监管机构披露与本协议项下交易有关的一切资料；
(i) 投资者具备财务及业务事宜方面的知识及经验， (i) 能够评估预期投资投资者股份的裨益及风险；(ii)能够承担有关投资的经济风险，包括损失投资者股份的全部投资；及(iii)其已收到其认为对决定是否投资投资者股份而言属必要或适当的一切资料；
(j) 其为专业投资者，通过订立本协议，其并不因本协议项下拟订交易而为任何整体协调人或独家保荐人的客户；
(k) 其以当事人身份为其本身认购投资者股份按自营投资基准进行投资，无意分销其根据本协议所认购的任何投资者股份，而投资者无权提名任何人士担任本公司董事或高级职员；
(l) 若在美国境外认购投资者股份，其以“离岸交易”（定义见证券法S规例）行事且并非美籍人士；
(m) 投资者以获豁免遵守或不受限于证券法登记规定的交易认购投资者股份；
(n) 投资者及投资者的实益拥有人及╱或联系人 (i)为独立于本公司的第三
方； (ii)并非本公司的关连人士（定义见上市规则）或其联系人，而即使投资者与可能订立（或已经订立）本协议所述任何其他一份或多份协议的任何一方或多方存在任何关系，投资者认购投资者股份不会导致投资者及其实益拥有人成为本公司的关连人士（定义见上市规则），并于紧随本协议完成后独立于就本公司控制权而言的任何关连人士且不与之一致行动（定义见香港公司收购及合并守则）；及(iii)并不直接或间接接受本公司任何核心关连人士（定义见上市规则）的融资、资金或支持，亦不惯于接受且并无接受任何核心关连人士有关本公司证券收购、出售、表决或其他处置的任何指示；
(o) 投资者、其实益拥有人及╱或联系人各自并非任何整体协调人、独家保荐人、全球发售的账簿管理人、牵头经办人、资本市场中介人、承销 商、牵头经纪商或任何分销商的“关连客户”。“关连客户”、“牵头经纪
商”及“分销商”等词汇具有上市规则附录六（《股本证券的配售指引》）赋予的涵义；
(p) 投资者的账户并非由相关交易所参与者（定义见上市规则）根据全权管理投资组合协议管理。“全权管理投资组合” 具有上市规则附录六（《股本证券的配售指引》）赋予的涵义；
(q) 投资者、其实益拥有人或其联系人并非本公司或其联系人的董事（包括在之前12个月内担任董事）、监事或现有股东或前述任何各项的代名 人，惟获得联交所豁免或许可者除外；
(r) 投资者并无且将不会与任何“分销商”（定义见证券法S规例）就分销H股份订立任何合约安排，惟与其联属人士订立者或获本公司事先书面同意者除外；
(s) 投资者股份认购将遵守附录六（《股本证券的配售指引》）的规定及联交所指引信HKEX-GL51-13及HKEX-GL85-16 ；
(t) 投资者及其紧密联系人（定义见上市规则）在本公司已发行股本总数中的持股总量（直接及间接）不致以令公众持有的本公司证券总量（具有上市规则所赋予的涵义）低于上市规则所规定或联交所另外批准的百分比；
(u) 投资者、其各自实益拥有人及╱或联系人根据本协议认购投资者股份时，概未获得本公司、本公司附属公司、本公司任何关连人士、任何整体协调人、独家保荐人或全球发售的任何资本市场中介人、承销商直接或间接提
供的任何融资；投资者及其各联系人（如有）独立于已参与或将参与全球发售的其他投资者及其任何联系人且与之无关连；
(v) 投资者或其联属人士、董事、高级职员、雇员或代理（作为一方）并无且不应与本公司或其控股股东、本集团任何成员公司或其各自的联属人士、董事、高级职员、雇员或代理订立任何不符合上市规则（包括香港联交所指引信HKEX-GL51-13）的安排或协议（包括任何附函）；
(w) 除根据本协议外，投资者或其任何联系人概未申请或通过累计投标程序下达指令认购全球发售项下任何H股份；及
(x) 除本协议有订明者外，投资者并无与任何政府机关或任何第三方就任何投资者股份订立任何安排、协议或承诺。
6.3 投资者向本公司、整体协调人及独家保荐人声明及保证，附表2所载有关其及其所属公司集团的说明属真实、完整及准确且不含误导成分。在不影响第6.1(b)条规定的情况下，投资者不可撤销地同意，在本公司、整体协调人及独家保荐人全权认为必要的情况下，于公开文件、本公司、整体协调人及╱或独家保荐人可能
就全球发售刊发的营销及路演资料以及其他公告中提述及载入其名称及协议的
全部或部分说明（包括附表2所载说明）。投资者承诺尽快提供与其、其拥有权
（包括最终实益拥有权）有关及╱或与本公司、整体协调人及╱或独家保荐人可能合理要求的事宜有关的进一步资料及╱或支持性文件，确保其符合适用法律及
╱或公司或证券登记及╱或主管监管机构（包括联交所及证监会）的要求。投资者谨此同意，经审阅公开文件草拟本及不时提供予投资者有关全球发售的市场推广材料所载有关其及其所属公司集团的说明并作出投资者可能合理要求的修订
（如有）后，投资者将被视为保证有关其及其所属公司集团的说明属真实、准确及完整且不含误导成分。
6.4 投资者知悉，第6.1条及6.2条中的声明及承认乃香港法例及美国证券法所规定。投资者承认，本公司、整体协调人、独家保荐人、资本市场中介人、承销商及其各自的附属公司、代理、联属人士及顾问以及其他人士将会依赖上述条款所
载投资者保证、承诺、声明及承认的真实性、完整性及准确性，且其同意在上述条款所载保证、承诺、声明或承认在任何方面不再准确及完整或含有误导成分的情况下会尽快书面通知本公司、整体协调人及独家保荐人。
6.5 投资者同意及承诺，投资者将于要求时对本公司、整体协调人、独家保荐人及全球发售的资本市场中介人、承销商（各自为其本身及代表其各自的联属人 士、对其实施控制（定义见证券法）的任何人士以及其各自的高级职员、董
事、雇员、员工、联系人、合伙人、代理及代表） （ 统称“获弥偿方”）就因投资者或其高级职员、董事、雇员、员工、联属人士、代理、代表、联系人或合伙人或因其引起而可能以任何方式针对获弥偿方作出或确立与认购投资者股
份、投资者股份或本协议有关（包括违反或被指违反本协议或任何作为或不作为或被指作为或不作为）的任何及一切损失、成本、开支、申索、行动、负 债、诉讼或损害及任何获弥偿方因有关或争辩或辩护以此为由或因此产生或与此有关的任何有关申索、行动或诉讼而可能遭受或产生的任何及一切合理成 本、费用、损失或开支以税后基准作出全面有效弥偿，并使获弥偿方免受前述各项的损害。
6.6 投资者根据第6.1、6.2、6.3、6.4及6.5条所作出的承认、确认、声明、保证及承诺（视情况而定）应诠释为一项独立承认、确认、声明、保证或承诺，并应被视为在上市日期及延迟交付日期（如适用）延迟交付日期重复作出。
6.7 本公司声明、保证及承诺：
(a) 其已根据中国法律妥为注册成立并有效存续；
(b) 其拥有全面权力、授权及资格并已采取一切所需行动以订立本协议及履行其于本协议项下的责任；
(c) 在付款后及符合第5.1条所规定的禁售期的情况下，投资者股份一经根据第4.4条交付予投资者，将获缴足、可自由转让且不附带任何购股权、留置权、抵押、按揭、质押、申索、权益、产权负担及其他第三方权利，并与当时已发行并将在联交所上市的H股份享有同等地位；
(d) 本公司及其控股股东、本集团任何成员公司及其各自的联属人士、董 事、高级职员、雇员及代理概无与任何投资者或其联属人士、董事、监事（如适用）、高级职员、雇员或代理订立任何不符合上市规则（包括联交所指引信HKEX-GL51-13）的协议或安排（包括任何附函）；及
(e) 除本协议有订明者外，本公司或本集团任何成员公司或其各自的任何联属人士、董事、高级职员、雇员或代理概无与任何政府机关或任何第三方就任何投资者股份订立任何安排、协议或承诺。
6.8 本公司承认、确认及同意，投资者将依赖国际发售通函所载资料，且投资者就国际发售通函与购买国际发售H股份的其他投资者拥有同等权利。
7. 终止
7.1 本协议可按下列方式终止：
(a) 根据第3.2、4.6、或4.7条；或
(b) 完全由本公司终止或由整体协调人及独家保荐人终止，前提是于国际发售结束或延迟交付日期（如适用）或之前(不论是否有任何与本协议相反的条文)，投资者严重违反本协议(包括严重违反投资者于本协议下的声明、保证、承诺及确认)；或
(c) 经所有订约方书面同意。
7.2 如根据第7.1条终止本协议，订约各方无义务继续履行各自在本协议下的义务
（下文第8.1条规定的保密义务除外），各订约方在本协议下的权利及责任（下文第11条规定的权利除外）应终止，且任何一方不得对任何其他方提出任何申索，前提是不影响终止时或终止前任何一方就本协议条款对其他方的已产生权利或责任。
7.3 即使本协议终止，投资者在本协议第6.5条中作出的弥偿保证应继续有效。
8. 公告及保密
8.1 除本协议及投资者订立的保密协议另有规定外，未经其他订约方事先书面同 意，各订约方不得披露与本协议或其项下拟进行交易或涉及本公司、整体协调人、独家保荐人及投资者的任何其他安排有关的任何信息。尽管有前述规定，本协议仍可由任何一方：
(a) 向联交所、证监会及/或本公司、整体协调人及/或独家保荐人受其管辖的其他监管机构披露，且本公司将发布的公开文件及本公司、整体协调人及/或独家保荐人将就全球发售发布的营销、路演材料及其他公告中，可以描述投资者的背景及本公司与投资者之间的关系；
(b) 向各订约方的法律及财务顾问、审计师及其他顾问，以及联属人士、联系人、董事、高级职员及相关雇员、代表及代理人按需知悉基准作出披露，前提是该订约方应(i)促使该订约方的此类法律、财务及其他顾问，以及联属人士、联系人、董事、高级职员及相关雇员、代表及代理人了解并遵守本协议规定的所有保密义务，及(ii)对该订约方的此类法律、财
务及其他顾问，以及联属人士、联系人、董事、高级职员及相关雇员、代表及代理人任何违反有关保密义务的行为负责；及
(c) 以任何适用法律、对该订约方有管辖权的任何政府机关或机构（包括联交所及证监会）或证券交易所规则（包括向香港公司注册处提交本协议作为重要合约进行登记及按照《公司（清盘及杂项条文）条例》及上市规则的规定于联交所及公司网站列示并使其可供公众查阅）或任何主管政府机关的任何具约束力的判决、命令或要求所规定的其他方式作出披露。
8.2 投资者不得作出与本协议及其任何附属事项有关的其他引述或披露，但若投资者已事先征询本公司、整体协调人及独家保荐人以寻求其对有关披露的原则、形式及内容的事先书面同意则除外。
8.3 本公司应尽合理努力，在公开文件公布之前将任何公开文件中与本协议、本公司与投资者之间的关系及有关投资者的背景信息有关的任何陈述，提供给投资者以供其审阅。投资者应与本公司、整体协调人及独家保荐人合作，以确保有关公开文件中所有对其的提述均属真实、完整、准确且不具误导性，及确保公开文件未遗漏任何有关其的重要信息，并应即时向本公司、整体协调人及独家保荐人及其各自的顾问提供任何意见及验证文件。
8.4 投资者各自承诺会提供准备第8.1条所述须作出的任何披露合理所需的协助（包括提供本公司、整体协调人或独家保荐人可合理要求的与其、其拥有权（包括最终实益拥有权）有关及／或以其他方式与当中所述事项有关的进一步信息及/或支持文件），以(i)更新本协议日期后公开文件中对投资者的描述并核实有关引述，及(ii)使本公司能够遵守适用公司或证券登记及/或主管监管机构（包括联交所及证监会）的要求。
9. 通知
9.1 本协议项下交付的所有通知均应采用英文或中文书面形式，并应按照第9.2条规定的方式交付至以下地址：
倘交付予本公司：
地址： | 广东省广州市番禺区亚运大道999号 |
电邮： | |
接收方： | 马丽 |
倘交付予投资者：
地址： | 香港湾仔168号告士打道信和财务大厦23楼 |
电邮： | tanxin@liugong.com；gongjs@liugong.com |
接收方： | 谭欣 、龚敬升 |
倘交付予海通国际资本：
地址： | 香港中環 港景街1 號 國際金融中心一期 3001-3006 室及3015-3016 室 |
电邮： | |
接收方： | Project F Deal Team |
倘交付予海通国际证券：
地址： | 香港中环 港景街 1 号 国际金融中心第1期28 楼 |
电邮： | |
接收方： | Project F Deal Team |
9.2 根据本协议交付的任何通知均应通过专人交付或以传真或电邮或预付邮资邮寄的方式交付。任何通知如以专人交付，则于交付时被视为收悉，如以传真方式交付，则于收到传送确认后被视为收悉，如以电邮方式交付，则于紧随交付时间后被视为收悉（按发件人发送电邮的设备所记录，不论电邮是否被确认，除非发件人收到自动消息表明电邮未送达），如以预付邮资的邮寄方式交付，则（如无更早收到的证据）在邮寄后48小时（如以航空邮件递送，则为6天）视为收悉。在非营业日收到的任何通知应视为在下一个营业日收悉。
10. 一般事项
10.1 各订约方确认并声明，本协议由其正式授权、签署及交付，构成其合法、有效及具约束力的义务，可根据其条款对其强制执行。除本公司为实施全球发售可能需要的同意、批准及授权外，各订约方并无为履行其在本协议下的义务而要求任何公司、股东或其他同意、批准或授权，且各订约方进一步确认其能履行其在本协议下的义务。
10.2 就本协议而言，除明显错误外，本公司及整体协调人就投资者股份数目及发售价秉诚作出的计算及确定均属最终定论。
10.3 本协议所规定的整体协调人及独家保荐人各自的义务属个别义务（而非共同或连带义务）。整体协调人及独家保荐人概不会就任何其他整体协调人及独家保荐人未能执行本协议条款而承担任何责任。尽管有上述规定，整体协调人及独家保荐人有权执行其于本协议下的任何或所有权利（不论单独或连同其他整体协调人及独家保荐人），惟以适用法律允许者为限。
10.4 对于本协议所需或可能需要的给予第三方的任何通知或第三方同意及╱或批准，投资者、本公司、整体协调人及独家保荐人应予以配合。
10.5 对本协议的任何更改或变更，若非以书面方式作出并由所有订约方或其代表签署，一概无效。
10.6 本协议将仅以中文签订。
10.7 除非相关各订约方另有书面约定，否则各订约方应自行承担与本协议有关的法律及专业费用、成本及开支，但就本协议拟订的任何交易产生的印花税，须由有关转让人╱卖方及有关受让人╱买方以相等份额承担。
10.8 时间应为本协议的要素，但本协议提及的任何时间、日期或期限可经各订约方相互书面协议延展。
10.9 即使已按照第4条完成交割，只要能够被履行或遵守，本协议的所有条款应继续完全有效，但对于当时已履行的事项及经各订约方书面同意终止的事项除外。
10.10 除投资者订立的保密协议外，本协议构成各订约方之间有关投资者投资于本公司的全部协议及谅解。本协议取代与本协议标的事项有关的所有先前承诺、确信、保证、陈述、沟通、谅解及协议（不论书面或口头）。
10.11 以本第10.11条另行规定者为限，并非本协议订约方的人士无权根据《合约（第三者权利）条例》强制执行本协议的任何条款，但这并不影响第三方在《合约（第三者权利）条例》外存在或可用的任何权利或补救：
(a) 获弥偿方可强制执行及依赖第6.5条，如同他们是本协议的订约方。
(b) 本协议可予终止或废除且任何条款均可予以修订、修改或豁免，无需经第
10.11(a)款所述人士同意。
10.12 整体协调人及独家保荐人有权力并获授权以其认为适当的方式及条款将其所有或任何相关权利、职责、权力及酌情权转授予他们的任何一名或多名联属人士（不论是否有正式手续，不论是否事先通知任何被要求给予本公司或投资者的此类转授权）。尽管有任何此类转授权，有关整体协调人或独家保荐人仍应个别（而非共同或连带）对根据本条款获其转授相关权利、职责、权力及╱或酌情权的任何
联属人士的所有作为及不作为负责。
10.13 任何订约方延迟或未能行使或执行（全部或部分）本协议或法律规定的任何权利，不应被视为该方免除或放弃或以任何方式限制其进一步行使或执行该权利或任何其他权利的能力，任何有关权利或补救措施的单独或部分行使，不妨碍有关权利或补救措施的任何其他或进一步行使或任何其他权利或补救措施的行使。本协议规定的权利、权力及补救措施属累积性质，不排除任何权利、权力及补救措施
（无论法律或其他方面规定者）。放弃追究任何违反本协议任何规定的行为的豁免，除非是以书面形式作出并由被要求作出豁免的订约方签署，否则不得生效，亦不得予以暗示。
10.14 如在任何时候，根据任何司法权区的法律，本协议的任何条款在任何方面属于或变成非法、无效或不可执行，这不影响或损害：
(a) 本协议任何其他条款在该司法权区内的合法性、有效性或可执行性；或
(b) 本协议的该条款或任何其他条款在任何其他司法权区法律下的合法性、有效性或可执行性。
10.15 本协议对各订约方及其各自的继承人、遗嘱执行人、遗产管理人、继任人及许可受让人具有约束力并完全为其利益而生效，任何其他人士不得根据或凭借本协议获得或拥有任何权利。除为内部重组或重组之目的外，任何订约方不得出让或转让其于本协议下的全部或任何部分利益、权益或权利。本协议下的义务不可转让。
10.16 在不损害就其他订约方遭受的一切损失及损害向投资者提出申索的所有权利的情况下，如在上市日期或延迟交付日期（如适用）或之前有投资者作出的保证遭违反，本公司、整体协调人及独家保荐人应（即使有与本协议相反的任何规定）有权废除本协议及各订约方于本协议下的所有义务应立即终止。
10.17 各订约方各自与其他订约方承诺，其将签立及履行为使本协议条款生效所需的进一步文件及行为，并促使有关文件及行为获签立及履行。
10.18 承认美国特别处置机制：
如本协议所用，
“金融控股公司法案联属人士”具有《美国法典》第12章第1841(k)条赋予“联属人士”一词的涵义，并应据此诠释；
“适用实体”指下列任何一项：
(a) 《美国联邦法规汇编》第12章第252.82(b)条所定义的“适用实体”，并应据此诠释；
(b) 《美国联邦法规汇编》第12章第47.3(b)条所定义的“适用银行”，并应据此诠释；或
(c) 《美国联邦法规汇编》第12章第382.2(b)条所定义的“适用FSI”，并应据此诠释；
“默认权利”具有《美国联邦法规汇编》第12章第252.81、47.2或382.1条（视何者适用而定）所赋予的涵义并应据此诠释；及
“美国特别处置机制”指(i)《联邦存款保险法案》及据其颁布的法规及(ii)《多德-
弗兰克华尔街改革及消费者保护法案》第二卷及据其颁布的法规。
11. 规管法律及司法权区
11.1 本协议及各订约方之间的关系受香港法例所规管并根据香港法例所诠释。
11.2 任何因本协议、或本协议的违反、终止或无效力性而造成或与之相关的争议、纠纷或申索（“争议”）截至递交仲裁申请日期须根据香港国际仲裁中心管理仲裁规则以仲裁方式解决。仲裁地点须为香港且仲裁程序的规管法律须为香港法例。仲裁人的数目须为三名而仲裁程序的语言须为中文。仲裁庭的决定及裁决对订约方而言须为最终且具约束力，并可于任何具司法管辖权的法院作出及执行，订约方不可撤销及无条件地放弃任何及所有对司法机关提出的任何形式的上诉、审核或追溯的权利，只要有关放弃可有效作出。尽管有上述规定，但在仲裁庭获指定前，各订约方应有权向具有有关司法管辖权的法院寻求临时禁令救济或其他临时救济。在并无影响国家法院的司法权区可提供的有关临时救济的情况下，仲裁庭拥有十足权利授予临时救济或责令各订约方要求法院修改或取消有关法院颁布的任何临时或初步救济，并就任何订约方不能就此履行仲裁庭的判令裁定赔偿。
12. 副本
12.1 本协议可签立任何数目的副本并可由有关订约方各自在单独的副本中签立。各副本为原件，但所有副本共同构成一份相同的文件。递交本协议的经签署副本签署页面的有效方式为以电子邮件附件(PDF)或传真方式进行。
附表1 投资者股份
投资者股份数目
投资者股份数目应相等于(1)人民币100,000,000元的等值金额（按招股章程所报人民币、港元以及美元的汇率计算）（不包括投资者将就投资者股份支付的经纪佣金及交易征费）除以(2)发售价，再向下约整至最接近每手200股H股份的完整买卖单位。
根据上市规则第18项应用指引第4.2段、联交所指引信HKEX-GL91-18及联交所授出的豁免（如有），倘香港公开发售下出现超额认购，投资者根据本协议将认购的投资者股份数目可能受到国际发售与香港公开发售之间H股份重新分配情况的影响。倘香港公开发售中H股份的总需求水平属于本公司最终招股章程“全球发售的架构－香港公开发售－重新分配及回拨”一节所载的情况，则投资者股份数目将按比例调减，以满足香港公开发售下的公众需求。此外，整体协调人、独家保荐人及本公司可全权酌情调整投资者股份数目分配情况，以符合(i)上市规则第8.08(3)条，当中规定上市日期由公众人士持有的证券中，由持股量最高的三名公众股东实益拥有的百分比，不得超过50%、或(ii)根据上市规则第8.08(1)(a)条或联交所另外有所批准的最低公众持股量要求。
为免生疑问，投资者同意，整体协调人可全权酌情决定拒绝全部或任何部分的国际发售中投资者订单（投资者除外）以遵守上市规则的相关最低要求（包括但不限于上市规则第 8.08 条的公众持股量规定及上市规则附录 6 所载的配售指引）。
附表2 投资者详情
投资者 | 柳工机械香港有限公司 |
注册成立地点： | 香港 |
公司注册证书编号： | 2010670 |
商业登记号码： | 62478316-000-12-22-8 |
主要业务： | 出口和销售柳工品牌的工程、土石方、路面及农用机械和工业车辆 |
最终控股股东： | 广西柳工机械股份有限公司 |
最终控股股东的注册成立地点： | 广西柳州市柳太路1号 |
最终控股股东的商业登记号码： | 91450200198229141F |
最终控股股东的主要业务： | 广西柳工机械股份有限公司于1958年成立，于1993年在深圳证券交易所上市；公司主要从事工程机械及关键零部件的研发、制造、销售和服务工作。公司产品包括土方机械、起重机械、矿山机械、高空作业机械、建筑机械、桩工机械、混凝土机械、工业车辆、农业机械等 |
股东及所持权益： | 广西柳工机械股份有限公司， 100%控股 |
载入招股章程的投资者说明： | 柳工機械是一家在香港註冊成立的有限公司，主要從事柳工牌工程、土石方、路面、農用設備、工業車輛的出口及銷售。 該公司是廣西柳工機械股份有限公司的 |
全資子公司，後者的股份於深圳證券交易所上市（股票代碼：000528），主營業務為工程機械及關鍵零部件的研發、生產、銷售和服務。
CONFIDENTIAL Execution Version DATED OCTOBER 30, 2023 |
FOLANGSI CO., LTD AND THE WARRANTING SHAREHOLDERS AND HAITONG INTERNATIONAL CAPITAL LIMITED AND HAITONG INTERNATIONAL SECURITIES COMPANY LIMITED AND THE HONG KONG UNDERWRITERS |
HONG KONG UNDERWRITING AGREEMENT relating to a public offering in Hong Kong of initially 1,213,600 H shares of nominal value of RMB0.25 each in the capital of FOLANGSI CO., LTD being part of a global offering of initially 12,136,000 H shares (subject to the Over-allotment Option) |
1 DEFINITIONS AND INTERPRETATION 2
4 THE HONG KONG PUBLIC OFFERING 20
8 REPRESENTATIONS, WARRANTIES AND UNDERTAKINGS 33
9 RESTRICTIONS ON ISSUE OR DISPOSAL OF SECURITIES 36
16 GOVERNING LAW; DISPUTE RESOLUTION; WAIVER OF IMMUNITY 60
SCHEDULE 1 THE WARRANTING SHAREHOLDERS AND HONG KONG UNDERWRITERS Sch 1-1
SCHEDULE 2 THE WARRANTIES Sch 2-1
SCHEDULE 3 CONDITIONS PRECEDENT DOCUMENTS Sch 3-1
SCHEDULE 4 SET-OFF ARRANGEMENTS Sch 4-1
SCHEDULE 5 PROFESSIONAL INVESTOR TREATMENT NOTICE Sch 5-1
THIS AGREEMENT is made on October 30, 2023 BETWEEN:
(1) FOLANGSI CO., LTD ( 廣州佛朗斯股份有限公司), a joint stock company incorporated in the PRC with limited liability and whose registered office is at No. 999, Yayun Avenue, Shiqi Town, Panyu District, Guangzhou City, Guangdong Province, PRC (the “Company”);
(2) THE WARRANTING SHAREHOLDERS whose names and addresses are set out in Part 1 of Schedule 1 (the “Warranting Shareholders”);
(3) HAITONG INTERNATIONAL CAPITAL LIMITED, a company incorporated in Hong Kong, whose place of business is Suites 3001-3006 and 3015-3016, 30/F, One International Finance Centre, 1 Harbour View Street, Central, Hong Kong, which is a licensed corporation under the SFO, licensed by the SFC under Central Entity number ADQ859 and licensed to conduct Type 6 (advising on corporate finance) regulated activity (“HTI Capital” or the “Sole Sponsor”);
(4) HAITONG INTERNATIONAL SECURITIES COMPANY LIMITED, a company incorporated in Hong Kong, whose place of business is 22/F, Li Po Chun Chambers, 189 Des Voeux Road Central, Hong Kong, which is a licensed corporation under the SFO, licensed by the SFC under Central Entity number AAF806 and licensed to conduct Type 1 (dealing in securities) and Type 4 (advising on securities) regulated activities (“HTI Securities” or the “Overall Coordinator” or the “Sole Global Coordinator”); and
(5) THE HONG KONG UNDERWRITERS whose names and addresses are set out in
Part 2 of Schedule 1 (the “Hong Kong Underwriters”).
RECITALS:
(A) The Company is a joint stock company incorporated in the PRC (as defined below) with limited liability and is registered in Hong Kong as a non-Hong Kong company under Part 16 of the Companies Ordinance (as defined below) with registration number F31386 on May 16, 2023.
(B) As at the date hereof, the Company has a registered share capital of RMB83,971,704 comprising 83,971,704 shares each with a nominal value of RMB1.00.
(C) Immediately upon completion of the Share Subdivision and the Global Offering (each as defined below), the Company will have a registered share capital of RMB87,005,704 comprising 348,022,816 Shares each with a nominal value of RMB0.25, assuming that the Over-allotment Option (as defined below) is not exercised.
(D) The Company proposes to conduct the Global Offering, pursuant to which it will offer H Shares to the public in Hong Kong in the Hong Kong Public Offering (as defined below) and will concurrently offer and sell H Shares outside the United States in offshore transactions in reliance on Regulation S under the Securities Act (the “International Offering”). HTI Securities is acting as the Overall Coordinator and Sole Global Coordinator of the Global Offering.
(E) The Company has submitted an application to the SEHK (as defined below) for the listing of, and permission to deal in, the H Shares on the Main Board of the SEHK (including any additional H Shares to be issued pursuant to the exercise of the Over-
Allotment Option). HTI Capital is acting as the Sole Sponsor in relation to the Company’s listing application.
(F) The Hong Kong Underwriters have agreed to severally underwrite the Hong Kong Offer Shares upon and subject to the terms and conditions hereinafter contained.
(G) The Warrantors have agreed to give the representations, warranties, undertakings and indemnities hereinafter contained in favour of the Sole Sponsor, the Overall Coordinator, the Sole Global Coordinator (as defined below), the Joint Bookrunners (as defined below), the Joint Lead Managers (as defined below), the CMIs (as defined below) and the Hong Kong Underwriters.
(H) The Company, the Warranting Shareholders, the Overall Coordinator, the Sole Global Coordinator, the CMIs and the International Underwriters intend to, among other matters, enter into the International Underwriting Agreement, pursuant to which the International Underwriters will agree to severally purchase or procure investors to purchase H Shares offered by the Company in the International Offering, upon and subject to the terms and conditions therein contained. The Company intends to grant the International Underwriters the Over-Allotment Option under the International Underwriting Agreement, exercisable at the discretion of the Overall Coordinator (on behalf of the International Underwriters), in whole or in part, to purchase from the Company the Option Shares (as defined below).
(I) The Company has appointed Tricor Investor Services Limited to act as its H share registrar and transfer agent for the H Shares.
(J) The Company has appointed CMB Wing Lung Bank Limited to act as the Receiving Bank and China Construction Bank (Asia) Corporation Limited to act as the sub- receiving bank (together, the “Receiving Banks”) in relation to the Hong Kong Public Offering, and CMB Wing Lung (Nominees) Limited to act as the nominee (the “Nominee”) to hold the application monies received by the receiving banks under the Hong Kong Public Offering.
(K) At a meeting of the Board (as defined below) held on October 12, 2023, resolutions were passed pursuant to which, inter alia, the Directors (as defined below) approved, and any one of the Directors was authorised to sign on behalf of the Company, this Agreement and all other relevant documents in connection with the Global Offering.
(L) In connection with the Global Offering, the Company has obtained approval from the CSRC (as defined below) on August 18, 2023, authorising the Company to apply for the listing of the H Shares on the SEHK.
NOW IT IS HEREBY AGREED as follows:
1 DEFINITIONS AND INTERPRETATION
1.1 Defined terms and expressions: Except where the context otherwise requires, in this Agreement, including the Recitals and the Schedules, the following terms and expressions shall have the respective meanings set out below:
“Acceptance Date” means November 3, 2023, being the date on which the Application Lists close in accordance with the provisions of Clause 4.4;
“Accepted Hong Kong Public Offering Applications” means the Hong Kong Public Offering Applications which have from time to time been accepted in whole or in part, pursuant to Clause 4.5;
“Admission” means the granting by the Listing Committee of the SEHK of the listing of, and permission to deal in, the H Shares to be issued pursuant to the Global Offering (including any additional H Shares that may be issued pursuant to the exercise of the Over-allotment Option) and the H Shares to be converted from Domestic Shares (as defined below) pursuant to the Share Conversion, or otherwise as described in the Hong Kong Prospectus, on the Main Board of the SEHK;
“Agreement Among Hong Kong Underwriters” means the agreement expected to be entered into on or about the Price Determination Date between, among others, the Overall Coordinator, the Sole Global Coordinator and the Hong Kong Underwriters governing certain rights and obligations as between the Hong Kong Underwriters in relation to the Hong Kong Public Offering;
“Application Form” means the GREEN application form in agreed form to be used in connection with the Hong Kong Public Offering;
“Application Lists” means the application lists in respect of the Hong Kong Public Offering referred to in Clause 4.4;
“Approvals and Filings” means any approvals, licences, consents, authorisations, permits, permissions, clearances, certificates, orders, concessions, qualifications, registrations, declarations and/or filings (including, without limitation, the CSRC Filings);
“Articles of Association” means the articles of association of the Company approved and adopted by the Company’s shareholder on April 21, 2023, which will become effective upon the Listing Date, as amended from time to time;
“associates” has the meaning ascribed to it in the Listing Rules;
“Authority” means any public, administrative, governmental or regulatory commission, board, body, authority or agency, or any stock exchange, self-regulatory organisation or other non-governmental regulatory authority (including but not limited to the SEHK, the SFC and the CSRC), or any court, tribunal or arbitrator, in each case whether national, central, federal, provincial, state, regional, municipal, local, domestic, foreign or supranational and of any jurisdiction;
“Board” means the board of Directors;
“Brokerage” means the brokerage at the rate of 1.0% of the Offer Price in respect of the Offer Shares payable by investors in the Global Offering;
“Business Day” means a day (other than Saturdays, Sundays or public holidays) on which banking institutions in Hong Kong are open generally for normal banking business and on which the SEHK is open for business for dealing in securities;
“CCASS” means the Central Clearing and Settlement System established and operated by HKSCC;
“CMIs” mean HTI Securities, GF Securities (Hong Kong) Brokerage Limited and Huatai Financial Holdings (Hong Kong) Limited, being the capital market intermediaries of the Global Offering;
“The Code” or “The Code of Conduct” means the Code of Conduct for Persons Licensed by or Registered with the Securities and Futures Commission;
“Companies Ordinance” means the Companies Ordinance (Chapter 622 of the Laws of Hong Kong), as amended, supplemented or otherwise modified from time to time;
“Companies (WUMP) Ordinance” means the Companies (Winding Up and Miscellaneous Provisions) Ordinance (Chapter 32 of the Laws of Hong Kong), as amended, supplemented or otherwise modified from time to time;
“Conditions” means the conditions precedent set out in Clause 2.1;
“Conditions Precedent Documents” means the documents listed in Parts A and B of
Schedule 3;
“Contracts (Rights of Third Parties) Ordinance” means the Contracts (Rights of Third Parties) Ordinance (Chapter 623 of the Laws of Hong Kong), as amended, supplemented or otherwise modified from time to time;
“Controlling Shareholders” has the meaning ascribed to it in the Listing Rules, and unless the context requires otherwise, refers to the controlling shareholders of the Company, namely Mr. Hou, Mr. Hou Zebing and Guangzhou Daze;
“Cornerstone Agreement” means the cornerstone investment agreement entered into among, inter alia the Company, the Overall Coordinator and the cornerstone investor as described in the Hong Kong Prospectus setting out the terms and conditions subject to which such cornerstone investor has agreed to subscribe for the Offer Shares;
“CSRC” means the China Securities Regulatory Commission of the PRC;
"CSRC Archive Rules" means the Provisions on Strengthening Confidentiality and Archives Administration of Overseas Securities Offering and Listing by Domestic Companies (关于加强境内企业境外发行证券和上市相关保密和档案管理工作的规定) issued by the CSRC, Ministry of Finance of the PRC, National Administration of State Secrets Protection of the PRC, and National Archives Administration of the
PRC (effective from 31 March 2023), as amended, supplemented or otherwise modified from time to time;
"CSRC Filing Rules" means the Trial Administrative Measures of Overseas Securities Offering and Listing by Domestic Companies (境内企业境外发行证券和上市管理试行办法) and supporting guidelines issued by the CSRC (effective from 31 March, 2023), as amended, supplemented or otherwise modified from time to time;
"CSRC Filing Report" means the filing report of the Company in relation to the Global Offering, including any amendments, supplements and/or modifications thereof, submitted to the CSRC on May 30, 2023 pursuant to Article 13 of the CSRC Filing Rules;
"CSRC Filing(s)" means any letters, filings, correspondences, communications, documents, responses, undertakings and submissions in any form, including any amendments, supplements and/or modifications thereof, made or to be made to the
CSRC, relating to or in connection with the Global Offering pursuant to the CSRC Filing Rules and other applicable rules and requirements of the CSRC (including, without limitation, the CSRC Filing Report);
"CSRC Rules" means the CSRC Filing Rules and the CSRC Archive Rules;
“Directors” means the directors of the Company whose names are set out in the section headed “Directors, Supervisors and Senior Management" of the Hong Kong Prospectus;
“Disclosure Package” shall have the meaning ascribed to it in the International Underwriting Agreement;
“Domestic Shares” means ordinary shares in the registered share capital of the Company, with a nominal value of RMB0.25 each after the Share Subdivision, which are subscribed for or credited as paid in Renminbi by domestic investors;
“EIPO Agreement” means the electronic initial public offering (EIPO) agreement between the Company and HKSCC;
“Encumbrance” means any mortgage, charge, pledge, lien or other security interest or any option, restriction, right of first refusal, right of pre-emption or other third party claim, right, interest or preference or any other encumbrance of any kind;
“Exchange Act” means the U.S. Securities Exchange Act of 1934, as amended;
“Final Offering Circular” shall have the meaning ascribed to the term “Final Offering Circular” under the International Underwriting Agreement;
“Formal Notice” means the press announcement in agreed form to be issued in connection with the Hong Kong Public Offering pursuant to the Listing Rules;
“Global Offering” means the Hong Kong Public Offering and the International Offering;
“Group” means the Company and the Subsidiaries, and the expression “member of the Group” shall be construed accordingly;
“Group Company” means any member of the Group and the expression “Group Companies” shall be construed accordingly;
“Guangzhou Daze” means Guangzhou Daze Investment Partnership (Limited Partnership) (廣州達澤投資合夥企業(有限合夥)), a limited partnership established under the laws of the PRC, and a Controlling Shareholder;
“H Share Registrar” means Tricor Investor Services Limited;
“HK$” or “Hong Kong dollars” means Hong Kong dollars, the lawful currency of Hong Kong;
“HK eIPO White Form Service” means the facility offered by the Company through the HK eIPO White Form Service Provider as the service provider designated by the Company allowing investors to apply electronically to purchase Hong Kong Offer Shares in the IPO App or on a website designated for such purpose, as provided for and disclosed in the Hong Kong Prospectus;
“HK eIPO White Form Service Provider” means Tricor Investor Services Limited;
“HKSCC” means Hong Kong Securities Clearing Company Limited;
“Hong Kong” means the Hong Kong Special Administrative Region of the PRC;
“Hong Kong Offer Shares” means the 1,213,600 H Shares being initially offered by the Company for subscription under the Hong Kong Public Offering, subject to adjustment and reallocation as provided in Clauses 2.6, 4.11 and 4.12, as applicable;
“Hong Kong Information Pack” means (i) the application proof prospectus of the Company posted on SEHK’s website at http://www.hkex.com.hk on May 25, 2023 and
(ii) the post hearing information pack of the Company posted on SEHK’s website at www.hkexnews.hk on October 25, 2023, in each case, as amended or supplemented thereto;
“Hong Kong Prospectus” means the prospectus in agreed form, relating to the Hong Kong Public Offering, to be issued by the Company;
“Hong Kong Prospectus Date” means the date of issue of the Hong Kong Prospectus, which is expected to be on or around October 31, 2023;
“Hong Kong Public Offering” means the offering of the Hong Kong Offer Shares to the public in Hong Kong for subscription pursuant to the terms and conditions of this Agreement and the Hong Kong Public Offering Documents;
“Hong Kong Public Offering Applications” means valid applications to purchase Hong Kong Offer Shares made (i) online via the HK eIPO White Form Service or (ii) through the CCASS EIPO service, and accompanied by cheques or cashier’s orders for the full amount payable that are honored on first presentation and otherwise made in compliance with the terms of the Hong Kong Public Offering Documents, including for the avoidance of doubt Hong Kong Underwriter’s Applications;
“Hong Kong Public Offering Documents” means the Hong Kong Prospectus, the Application Form and the Formal Notice, in each case, as amended or supplemented thereto;
“Hong Kong Public Offering Over-Subscription” has the meaning ascribed to it in Clause 4.11;
“Hong Kong Public Offering Under-Subscription” has the meaning ascribed to it in Clause 4.6;
“Hong Kong Public Offering Underwriting Commitment” means, in relation to any Hong Kong Underwriter, the number of Hong Kong Offer Shares which such Hong Kong Underwriter has agreed to procure applications to purchase, or failing which itself as principal apply to purchase, pursuant to the terms of this Agreement, being such number calculated by applying the percentage set forth opposite the name of such Hong Kong Underwriter in Part 2 of Schedule 1 to the aggregate number of Hong Kong Offer Shares determined after taking into account any adjustment pursuant to Clauses 2.6, 4.11 and 4.12, as applicable, but not in any event exceeding the maximum number of Hong Kong Offer Shares as shown opposite the name of such Hong Kong Underwriter in Part 2 of Schedule 1;
“Hong Kong Underwriters” means the persons set forth in Part 2 of Schedule 1;
“Hong Kong Underwriter’s Application” means, in relation to any Hong Kong Underwriter, a Hong Kong Public Offering Application made or procured to be made by such Hong Kong Underwriter pursuant to Clause 4.7 which is applied to reduce the Hong Kong Public Offering Underwriting Commitment of such Hong Kong Underwriter pursuant to Clause 4.7;
“H Shares” means overseas listed foreign ordinary shares in the share capital of the Company with a nominal value of RMB0.25 each, to be subscribed for and traded in Hong Kong dollars and to be listed on the SEHK;
“Incentive Fee” has the meaning ascribed to it in Clause 6.1;
“Indemnified Parties” means (i) the Sole Sponsor, the Overall Coordinator, the Sole Global Coordinator, the Joint Bookrunners, the Joint Lead Managers, the CMIs and the Hong Kong Underwriters; (ii) their respective subsidiaries, head offices and branches, associates and affiliates, their respective delegates referred to in Clause 3.9; (iii) their respective affiliates, directors, supervisors, officers, members, employees, representatives and agents; (iv) all directors, supervisors, officers, members, employees, representatives and agents of their respective subsidiaries, head offices and branches, associates and affiliates directly involved in the Global Offering; and (v) the successors and assigns of all of the foregoing persons, and “Indemnified Party” means any one of the Indemnified Parties;
“Indemnifying Party” has the meaning ascribed to it in Clause 12.1;
“Industry Expert” means China Insights Industry Consultancy Limited, the market research consultant commissioned by the Company to prepare the Industry Report;
“Industry Report” means the industry report commissioned by the Company for use in relation to the Hong Kong Prospectus and the information of which is set out in the section headed “Industry Overview” of the Hong Kong Prospectus;
“Internal Controls Consultant” means Ernst & Young Advisory Services Limited;
“Internal Controls Reports” means the internal controls reports relating to the Company prepared by the Internal Controls Consultant;
“International Offer Shares” means 10,922,400 H Shares initially proposed to be offered by the Company for purchase by, or by purchasers procured by, the International Underwriters under the International Offering, subject to adjustment and reallocation in accordance with this Agreement and the International Underwriting Agreement, together with (where applicable) the Option Shares;
“International Offering” has the meaning ascribed thereto in the Recitals;
“International Offering Underwriting Commitment” means, in relation to any International Underwriter, the number of International Offer Shares in respect of which such International Underwriter has agreed to purchase or procure investors to purchase pursuant to the terms of the International Underwriting Agreement, subject to adjustment and reallocation in accordance with the International Underwriting Agreement and subject to the Over-Allotment Option;
“International Underwriters” mean the persons named as such in the International Underwriting Agreement;
“International Underwriting Agreement” means the international underwriting agreement relating to the International Offering to be entered into between, among others, the Company, the Overall Coordinator, the Sole Global Coordinator, the Joint Bookrunners, the Joint Lead Managers, the CMIs and the International Underwriters;
“Investor Presentation Materials” means all information, materials and documents issued, given or presented in any of the investor presentations and/or roadshow presentations conducted by or on behalf of the Company in connection with the Global Offering;
“Joint Bookrunners” means HTI Securities, GF Securities (Hong Kong) Brokerage Limited and Huatai Financial Holdings (Hong Kong) Limited;
“Joint Lead Managers” means HTI Securities, GF Securities (Hong Kong) Brokerage Limited and Huatai Financial Holdings (Hong Kong) Limited;
“Laws” means any and all national, central, federal, provincial, state, regional, municipal, local, domestic or foreign laws (including any common law or case law), laws, statutes, ordinances, legal codes, regulations or rules (including any and all regulations, rules, orders, judgments, decrees, rulings, opinions, guidelines, measures, executive orders, policies, consents, notices or circulars (in each case, whether formally published or not and to the extent mandatory or, if not complied with, the basis for legal, administrative, regulatory or judicial consequences) of any Authority (including, without limitation, the Listing Rules, the Companies Ordinance, the Companies (WUMP) Ordinance and the CSRC Rules);
“Listing Committee” means the listing committee of the SEHK;
“Listing Date” means the first day on which the H Shares commence trading on the SEHK (which is expected to be on November 10, 2023);
“Listing Rules” means The Rules Governing the Listing of Securities on The Stock Exchange of Hong Kong Limited, as amended or replaced or as their application is modified by the listing decisions, guidelines, guidance letters and other requirements of the SEHK published from time to time;
“Loss(es)” has the meaning ascribed to it in Clause 12.1;
“Material Adverse Change” means a material adverse change, or any development involving a prospective material adverse effect on the assets, liabilities, business, general affairs, management, prospects, shareholders’ equity, profits, losses, results of operations, position or condition, financial, operational or trading or otherwise, or performance of the Company and the other members of the Group, taken as a whole;
“Mr. Hou”means Mr. Hou Zekuan (侯澤寬), an executive Director and the chairman of the Board of the Company, and a Controlling Shareholder;
“Mr. Hou Zebing” means Mr. Hou Zebing (侯澤兵), an executive Director and the general manager of the Company, and a Controlling Shareholder;
“Nominee” has the meaning ascribed to it in the Recitals;
“OC Announcement” means the Company’s announcement dated May 25, 2023 in relation to the appointment of the Overall Coordinator;
“Offer Price” means the final price per H Share (exclusive of the Brokerage, the Trading Fee and the Transaction Levies) at which the Offer Shares are to be purchased under the Global Offering, to be determined in accordance with Clause 2.5;
“Offer Shares” means the Hong Kong Offer Shares and the International Offer Shares being offered at the Offer Price under the Global Offering;
“Offering Documents” means the Hong Kong Public Offering Documents, the Disclosure Package, the Preliminary Offering Circular, the Final Offering Circular and any other document issued, given or used in connection with the contemplated offering and sale of the Offer Shares or otherwise in connection with the Global Offering, including any Investor Presentation Materials relating to the Offer Shares and, in each case, all amendments or supplements thereto, whether or not approved by the Sole Sponsor, the Overall Coordinator or any of the Underwriters;
“Offering Related Documents” has the meaning ascribed to it in Clause 11.1.2;
“Operative Documents” means the Price Determination Agreement, the Receiving Banks Agreement, the Registrar Agreement, the Cornerstone Agreement and the EIPO Agreement;
“Option Shares” means up to 1,820,400 additional H Shares to be purchased by, or by investors procured by, the International Underwriters from the Company pursuant to the Over-Allotment Option;
“Over-Allotment Option” means the option to be granted under the International Underwriting Agreement by the Company to the International Underwriters, exercisable by the Overall Coordinator in whole or in part (on behalf of the International Underwriters), pursuant to which the Company is required to allot and issue all or part of the Option Shares as may be necessary, to cover, among other things, over-allocations (if any) made in connection with the International Offering, on and subject to the terms of the International Underwriting Agreement;
"PHIP” means the post hearing information pack of the Company posted on SEHK’s website at www.hkexnews.hk on October 25, 2023, as amended or supplemented thereto;
“PRC” means the People’s Republic of China, which for the purposes of this Agreement shall not include Hong Kong, Taiwan and the Macau Special Administrative Region of the People's Republic of China;
“Preliminary Offering Circular” means the preliminary offering circular expected to be dated on or around October 31, 2023 issued by the Company and stated therein to be subject to amendment and completion, as amended or supplemented by any amendment or supplement thereto prior to the Time of Sale (as defined in the International Underwriting Agreement);
“Price Determination Agreement” means the agreement in agreed form to be entered into between the Company and the Overall Coordinator (for itself and on behalf of the Hong Kong Underwriters) on the Price Determination Date to record the Offer Price;
“Price Determination Date” means the date on which the Offer Price is fixed for the purposes of the Hong Kong Public Offering in accordance with Clause 2.5;
“Receiving Banks” has the meaning ascribed to it in the Recitals;
“Receiving Banks Agreement” means the agreement dated October 30, 2023, entered into between the Company, the Receiving Banks, the Overall Coordinator and the Nominee;
“Registrar Agreement” means the agreement dated April 14, 2023, entered into between the Company and the H Share Registrar;
“Related Public Information” has the meaning ascribed to it in Clause 12.1.1; “Relevant Jurisdiction(s)” has the meaning ascribed to it in Clause 11.1.1(a); “Reporting Accountants” means Ernst & Young;
“RMB” or “Renminbi” means renminbi, the lawful currency of the PRC;
“Securities Act” means the United States Securities Act of 1933, as amended;
“Securities and Futures Ordinance” means the Securities and Futures Ordinance (Chapter 571 of the Laws of Hong Kong);
“SEHK” means The Stock Exchange of Hong Kong Limited;
“SFC” means the Securities and Futures Commission of Hong Kong;
“Shares” means ordinary shares of the Company with a nominal value of RMB0.25 each after the Share Subdivision, including Domestic Shares and H Shares;
“Share Conversion” means the conversion of an aggregate of 194,458,736 Domestic Shares into H Shares on a one-for-one basis upon completion of the Global Offering, as approved by the CSRC on August 18, 2023;
“Share Subdivision” means the subdivision of each issued and unissued share in the Company’s share capital with a nominal value of RMB1.00 each into four shares with a nominal value of RMB0.25 with effect from the Listing Date;
“Sole Global Coordinator” means HTI Securities;
“Sponsor-OC” means HTI Securities;
“Sole Sponsor and Sponsor-OC Mandate Letter” means the Sole Sponsor and Sponsor-OC’s mandate letter dated February 3, 2023 entered into between the Company, HTI Capital and HTI Securities in relation to the Company’s proposed listing on the SEHK, as amended, supplemented or otherwise modified from time to time;
“Sole Sponsor” means HTI Capital;
“Stabilising Manager” means HTI Securities, being the stabilising manager in connection with the Global Offering;
“Subsidiary(ies)” means the subsidiary(ies) of the Company;
“Supervisors” means the supervisors of the Company whose names are set out in the section headed “Directors, Supervisors and Senior Management” of the Hong Kong Prospectus”;
“Takeovers Code” means the Hong Kong Codes on Takeovers and Mergers and Share Buy-backs, as amended from time to time;
“Taxation” or “Taxes” or “Tax” means all present or future taxes, levies, imposts, duties, fees, assessments or other charges of whatever nature imposed, assessed or levied by any Authority, whether by way of actual assessment, loss of allowance, withholding, deduction or credit available for relief or otherwise, including all interest, additions to tax, penalties or similar liabilities with respect thereto and all forms of taxation whenever created, imposed or arising and whether of the Relevant Jurisdictions or of any other part of the world and, without prejudice to the generality of the foregoing, includes all forms of taxation on or relating to profits, salaries, interest and other forms of income, taxation on capital gains, sales and value added taxation, estate duty, death duty, capital duty, stamp duty, payroll taxation, withholding taxation, rates and other taxes or charges relating to property, customs and other import and excise duties, and generally any taxation, duty, fee, assessment, impost, levy, rate, charge or any amount payable to taxing, revenue, customs or fiscal Authorities whether of the Relevant Jurisdictions or of any other part of the world, whether by way of actual assessment, loss of allowance, withholding, deduction or credit available for relief or otherwise, and including all interest, additions to tax, penalties or similar liabilities arising in respect of any taxation;
“Time of Sale” shall have the meaning ascribed to it in the International Underwriting Agreement;
“Trading Fee” means the trading fee at the rate of 0.00565% of the Offer Price in respect of the Offer Shares imposed by the SEHK;
“Transaction Levies” mean (i) the transaction levy at the rate of 0.0027% of the Offer Price in respect of the Offer Shares imposed by SFC and (ii) the transaction levy at the rate of 0.00015% of the Offer Price in respect of the Offer Shares imposed by the Accounting and Financial Reporting Council of Hong Kong;
“Underwriters” means the Hong Kong Underwriters and the International Underwriters;
“Underwriting Commission” has the meaning ascribed to it in Clause 6.1; “Unsold Hong Kong Offer Shares” has the meaning ascribed to it in Clause 4.6;
“U.S.” and “United States” means the United States of America, its territories and possessions, any State of the United States and the District of Columbia;
“Verification Notes” means the notes prepared in order to verify the information contained in the Hong Kong Prospectus together with the answers and supporting documents thereto, copies of which have been signed and approved by, among others, the Directors;
“Warranties” means the representations, warranties, agreements and undertakings (i) of the Warrantors as set out in Part A of Schedule 2; and (ii) of the Warranting Shareholders as set out in Part B of Schedule 2; and
“Warrantors” means the Company and the Warranting Shareholders.
1.2 Headings: The headings in this Agreement are for convenience only and shall not affect the interpretation of this Agreement.
1.3 Recitals and Schedules: The Recitals and Schedules form part of this Agreement and shall have the same force and effect as if expressly set out in the body of this Agreement and any reference to this Agreement shall include the Recitals and the Schedules.
1.4 References: Except where the context otherwise requires, in this Agreement:
1.4.1 references to an “affiliate”, in relation to any person, shall be to any other person which is the holding company of such person, or which is a subsidiary or branch of such person or of the holding company of such person, or which directly or indirectly through one or more intermediaries controls or is controlled by or is under common control with such person; for the purposes of the foregoing, “control” means the power, directly or indirectly, to direct or cause the direction of the management and policies of a person, whether through the ownership of voting securities, by contract or otherwise, and “controlling”, “controlled by” and “under common control with” shall be construed accordingly;
1.4.2 references to “Clauses”, “Recitals” and “Schedules” are to clauses of and recitals and schedules to this Agreement;
1.4.3 whenever the words “include,” “includes” or “including” are used in this Agreement, they shall be deemed to be followed by the words “without limitation”;
1.4.4 the terms “herein”, “hereof”, “hereto”, “hereinafter” and similar terms, shall in each case refer to this Agreement as a whole and not to any particular clause, paragraph, sentence, schedule or other subdivision of this Agreement;
1.4.5 the term “or,” is not exclusive;
1.4.6 references to “persons” shall include bodies corporate, unincorporated associations and partnerships;
1.4.7 the terms “purchase” and “purchaser”, when used in relation to the H Shares, shall include, respectively, a subscription for the H Shares and a subscriber for the H Shares;
1.4.8 the terms “sell” and “sale”, when used in relation to the H Shares, shall include an allotment or issuance of the H Shares by the Company;
1.4.9 references to a “subsidiary” or “holding company” shall be construed to have the same meanings as defined in section 2 of the Companies (WUMP) Ordinance and in sections 13 and 15 of the Companies Ordinance (as the case may be);
1.4.10 references to any statute or statutory provisions, or rules or regulations (whether or not having the force of law), shall be construed as references to the same as amended, varied, modified, consolidated, re-enacted and/or replaced from time to time (whether before or after the date of this Agreement) and to any subordinate legislation made under such statutes or statutory provisions;
1.4.11 references to a document being “in agreed form” shall mean such document in a form from time to time (whether on or after the date herefo) agreed between the Sole Sponsor, the Overall Coordinator (for itself and on behalf of the Underwriters) and the Company;
1.4.12 references to a “certified true copy” means a copy certified as a true copy by a Director or the secretary of the Company or the counsel for the Company;
1.4.13 references to writing shall include any mode of reproducing words in a legible and non-transitory form;
1.4.14 references to times of day and dates are to Hong Kong times and dates, respectively;
1.4.15 references to one gender shall include the other genders;
1.4.16 references to the singular shall include the plural and vice versa; and
1.4.17 an obligation herein on a person not to do something includes an obligation not to agree or allow that thing to be done.
2 CONDITIONS
2.1 Conditions precedent: The respective obligations of the Overall Coordinator, the Sole Global Coordinator, the Joint Bookrunners, the Joint Lead Managers, the CMIs, the Hong Kong Underwriters and the Sole Sponsor under this Agreement are conditional on the following conditions precedent being satisfied, or where applicable, waived (to the extent permissible under applicable Laws):
2.1.1 the Sole Sponsor and the Overall Coordinator (for itself and on behalf of the Underwriters) receiving from the Company all Conditions Precedent Documents as set out in Part A of Schedule 3 and Part B of Schedule 3, in form and substance satisfactory to the Overall Coordinator, not later than 8:00
p.m. on the Business Day immediately before the Hong Kong Prospectus Date and 8:00 p.m. on the Business Day immediately before the Listing Date, respectively;
2.1.2 the issue by the SEHK of a certificate of authorisation of registration in respect of the Hong Kong Prospectus and the Application Form not later than 6:00 p.m. on the Business Day immediately before the Hong Kong Prospectus Date, and the registration by the Registrar of Companies in Hong Kong of one copy of each of the Hong Kong Prospectus and the Application Form, duly certified by two Directors (or by their attorneys duly authorised in writing) as having been approved by resolutions of the Board and having attached thereto all necessary consents and documents required by section 342C of the Companies (WUMP) Ordinance, not later than 6:00 p.m. on the Business Day immediately before the Hong Kong Prospectus Date;
2.1.3 Admission having occurred and become effective (either unconditionally or subject only to allotment and issue of the relevant Offer Shares, despatch or availability for collection of share certificates in respect of the Offer Shares and/or such other usual conditions for transactions of this nature as may be acceptable to the Sole Sponsor and the Overall Coordinator (for itself and on behalf of the Hong Kong Underwriters)) not later than one Business Day before the Listing Date (or such later date as the Sole Sponsor and the Overall Coordinator (for itself and on behalf of the Hong Kong Underwriters) may agree in writing) and Admission not subsequently having been withdrawn, revoked, withheld or subject to qualifications (except for customary conditions imposed by SEHK in relation to Listing) prior to the commencement of trading of the H Shares on the SEHK;
2.1.4 admission of the H Shares into CCASS having occurred and become effective (either unconditionally or subject only to allotment and issue of the relevant Offer Shares, dispatch or availability for collection of share certificates in respect of the Offer Shares and/or such other usual conditions for transactions of this nature as may be acceptable to the Sole Sponsor and the Overall Coordinator (for itself and on behalf of the Hong Kong Underwriters)) on or before the Listing Date (or such later date as the Sole Sponsor and the Overall Coordinator (for itself and on behalf of the Hong Kong Underwriters) may agree in writing);
2.1.5 the Offer Price having been fixed, and the Price Determination Agreement having been duly executed by the Company and the Overall Coordinator (for itself and on behalf of the Underwriters), on the Price Determination Date in accordance with Clause 2.5 and such agreement not subsequently having been terminated (whether in accordance with its terms or otherwise);
2.1.6 the execution and delivery of the International Underwriting Agreement on or before the Price Determination Date, the obligations of the International Underwriters thereunder having become unconditional in accordance with its terms, save for the condition therein relating to the obligations of the Hong Kong Underwriters under this Agreement (and any condition for this Agreement becoming unconditional) and the International Underwriting Agreement not having been terminated in accordance with its terms or otherwise, prior to 8:00 a.m. on the Listing Date;
2.1.7 the Warranties being true, accurate, not misleading and not breached on and as of the date of this Agreement in the reasonable opinion of the Overall Coordinator at and as of each of the dates specified in Clause 8.2 (as though they had been given and made on such dates and times by reference to the facts and circumstances then subsisting);
2.1.8 the Company having obtained from or made to (as the case may be) the relevant Authorities all applicable Approvals and Filings (including (i) acceptance by the CSRC of the CSRC Filings and publication of the filing results in respect of the CSRC Filings on the CSRC website; and (ii) all requisite Approvals and Filings to be obtained from the CSRC) in connection with the Global Offering, and all such Approvals and Filings are not otherwise rejected, revoked, withdrawn, amended or invalidated prior to 8:00 a.m. on the Listing Date;
2.1.9 all of the waivers as stated in the Hong Kong Prospectus to be granted by the SEHK or the SFC being granted or being not otherwise revoked, amended, withdrawn or invalidated; and
2.1.10 the Company and each of the Warrantors having complied with this Agreement and satisfied all the obligations and conditions on its or his part under this Agreement to be performed or satisfied (or otherwise waived in accordance with the terms stated herein) on or prior to the respective times and dates by which such obligations must be performed or such conditions must be met, as the case may be.
2.2 Procure fulfilment: The Warrantors jointly and severally undertake to the Overall Coordinator, the Sole Global Coordinator, the Joint Bookrunners, the Joint Lead Managers, the CMIs, the Hong Kong Underwriters and the Sole Sponsor to procure the fulfilment of the Conditions on or before the relevant time or date specified therefor and, in particular, the Company shall furnish such information, supply such documents, pay such fees, give such undertakings and do all acts and things as may be required by the Overall Coordinator (for itself and on behalf of the Hong Kong Underwriters), the Sole Sponsor, the SEHK, the SFC, the CSRC and the Registrar of Companies in Hong Kong and any other relevant Authority for the purposes of or in connection with the listing of the H Shares and the fulfilment of such Conditions.
2.3 Extension: The Sole Sponsor and Overall Coordinator (for itself and on behalf of the Hong Kong Underwriters) shall have the right, in their sole and absolute discretion, on or before the respective latest times on which each of the Conditions is required to be fulfilled, either:
2.3.1 to extend the deadline for the fulfilment of any Condition by such number of days or in such manner as the Sole Sponsor and Overall Coordinator (for itself and on behalf of the Hong Kong Underwriters) may determine (in which case the Sole Sponsor and Overall Coordinator shall be entitled to extend the other dates or deadlines referred to in this Agreement in such manner as it deems appropriate, provided that no extension shall be made beyond the 30th day after the date of the Hong Kong Prospectus (which is expected to be December 3, 2023) and any such extension and the new timetable shall be notified by the Sole Sponsor and Overall Coordinator to the other parties to this Agreement and the relevant regulatory authorities as soon as practicable after any such extension is made); or
2.3.2 in respect of the Condition set out in each of Clauses 2.1.1 and 2.1.7 only, to waive or modify (with or without condition(s) attached and in whole or in part) such Condition for itself and on behalf of the Hong Kong Underwriters.
2.4 Conditions not satisfied: Without prejudice to Clauses 2.3 and 11, if any of the Conditions shall not have been fulfilled in accordance with the terms of this Agreement on or before the date or time specified therefor without any subsequent extension of time or waiver or modification in accordance with the terms of this Agreement, this Agreement shall terminate with immediate effect and the provisions of Clause 11.2 shall apply.
2.5 Determination of Offer Price: The Company and the Overall Coordinator (for itself and on behalf of the Hong Kong Underwriters) shall meet or otherwise communicate as soon as reasonably practicable, after the book-building process in respect of the International Offering has been completed, with a view to agreeing the price at which the Offer Shares will be offered pursuant to the Global Offering. If the Company and Overall Coordinator (for itself and on behalf of the Hong Kong Underwriters) reach agreement on the said price on the Price Determination Date, then such agreed price shall represent the Offer Price for the purposes of the Global Offering and for this Agreement and the parties shall record the agreed price by executing the Price
Determination Agreement. If no such agreement is reached and the Price Determination Agreement is not signed by 5:00 p.m. on November 9, 2023 and no extension is granted by the Overall Coordinator (for itself and on behalf of the Hong Kong Underwriters) pursuant to Clause 2.3, the provisions of Clause 2.4 shall apply. Each of the Hong Kong Underwriters (other than the Overall Coordinator) authorizes the Overall Coordinator to negotiate and agree on its behalf the Offer Price and to execute and deliver the Price Determination Agreement on its behalf with such variations, if any, as in the sole judgement of the Overall Coordinator may be necessary or desirable and further agree that it will be bound by all the terms of the Price Determination Agreement as executed.
2.6 Reduction of indicative Offer Price range or number of Offer Shares: The Overall Coordinator (for itself and on behalf of the Underwriters) may, where considered appropriate, based on the level of interest expressed by prospective investors during the book-building process in respect of the International Offering, and with the prior consent of the Company, reduce the number of Offer Shares initially offered in the Global Offering and/or the indicative Offer Price range below that stated in the Hong Kong Prospectus at any time prior to the morning of the Acceptance Date, in which event the Company shall, as soon as practicable following the decision to make such reduction and, in any event, not later than the morning of the Acceptance Date, (a) cause a notice of the reduction in the number of Offer Shares initially offered in the Global Offering and/or the indicative Offer Price range to be published on the Company’s website at www.fls123.com and the website of the SEHK at www.hkexnews.hk; and (b) cause such supplemental offering documents as may be required by the Laws of any Authority to be published in such manner as the relevant Laws or Authority may require as soon as practicable following the decision to make the change and such notice / supplemental offering documents shall also include confirmation or revision, as appropriate, of the working capital statement and the Global Offering statistics set out in the Hong Kong Prospectus and any other financial information which may change as a result of such reduction.
2.7 No waiver in certain circumstances: The Sole Sponsor’s or the Overall Coordinator’s consent to or knowledge of any amendment/supplement to the Offering Documents and the Hong Kong Information Pack subsequent to their respective issues, distributions or publications will not (i) constitute a waiver of any of the Conditions or (ii) result in any loss of their (for itself and the Hong Kong Underwriters) rights to terminate this Agreement.
3 APPOINTMENTS
3.1 Sponsor-OC: The Company hereby confirms and acknowledges its appointment, to the exclusion of all others, of HTI Securities to act as the sponsor-overall coordinator of the Global Offering, and HTI Securities relying on the Warranties and subject as hereinafter mentioned, hereby confirms and acknowledges its acceptance of such appointment.
3.2 Overall Coordinator: The Company hereby confirms and acknowledges its appointment, to the exclusion of all others, of the Overall Coordinator to act as the Overall Coordinator of the Global Offering, and the Overall Coordinator relying on the Warranties and subject as hereinafter mentioned, hereby confirms and acknowledges its acceptance of such appointment.
3.3 Sole Global Coordinator: The Company hereby confirms and acknowledges its appointment, to the exclusion of all others, of the Sole Global Coordinator as the Sole Global Coordinator of the Global Offering, and the Sole Global Coordinator, relying
on the Warranties and subject as hereinafter mentioned, hereby confirms and acknowledges its acceptance of such appointment.
3.4 Joint Bookrunners: The Company hereby confirms and acknowledges its appointment, to the exclusion of all others, of the Joint Bookrunners to act as the joint bookrunners of the Global Offering, and each of the Joint Bookrunners, relying on the Warranties and subject as hereinafter mentioned, hereby confirms its acceptance of such appointment.
3.5 Joint Lead Managers: The Company hereby confirms and acknowledges its appointment, to the exclusion of all others, of the Joint Lead Managers to act as the joint lead managers of the Global Offering, and each of the Joint Lead Managers, relying on the Warranties and subject as hereinafter mentioned, hereby confirms its acceptance of such appointment.
3.6 CMIs: The Company hereby confirms and acknowledges its appointment, to the exclusion of all others, of the CMIs to act as the capital market intermediaries of the Global Offering, and each of the CMIs relying on the Warranties and subject as hereinafter mentioned, hereby confirms and acknowledges its acceptance of such appointment.
3.7 Sole Sponsor: The Company hereby confirms and acknowledges its appointment, to the exclusion of all others, of the Sole Sponsor to act as the sole sponsor of the Company in relation to its application for Admission. The Sole Sponsor, relying on the Warranties and subject as hereinafter mentioned, hereby confirms its acceptance of such appointment.
3.8 Hong Kong Underwriters: The Company hereby appoints the Hong Kong Underwriters, to the exclusion of all others, to underwrite the Hong Kong Offer Shares, and as agents of the Company, to procure applications for the Hong Kong Offer Shares, and the Hong Kong Underwriters, relying on the Warranties, severally (and not jointly or jointly and severally) accept such appointment, upon and subject to the terms and conditions of this Agreement.
3.9 Delegation: Each appointment referred to in Clauses 3 to 3.8 is made on the basis, and on terms, that each appointee is irrevocably authorised to delegate all or any of its relevant rights, duties, powers and discretions in such manner and on such terms as it thinks fit (with or without formality and without prior notice of any such delegation being required to be given to the Company) to any one or more of its affiliates or any other person. In particular, the Hong Kong Underwriters shall be entitled to enter into sub-underwriting arrangements in respect of any part of their respective underwriting commitments. Each of the appointee shall remain liable for all acts and omissions of any of its affiliates or any other person to which it delegates relevant rights, duties, powers and/or discretions pursuant to this Clause 3.9.
3.10 Conferment of authority: The Company hereby confirms that the foregoing appointments under Clauses 3 to 3.8 confer on each of the appointees and their respective delegates under Clause 3.9 all rights, powers, authorities and discretions on behalf of the Company which are necessary for, or incidental to, the performance of such appointee’s roles as sole sponsor, sponsor-overall coordinator, overall coordinator, sole global coordinator, joint bookrunner, joint lead manager, capital market intermediary or Hong Kong underwriter (as the case may be) and hereby agrees to ratify and confirm everything each such appointee or each such delegate has done or shall do within the scope of such appointments or in the exercise of such rights, powers, authorities and discretions.
3.11 No fiduciary relationship: Each of the Warrantors acknowledges and agrees that (i) the Sole Sponsor, in its role as such, is acting solely as sponsor in connection with the listing of the H Shares on the SEHK; (ii) the Sponsor-OC, in its role as such, is acting solely as sponsor-overall coordinator of the Global Offering; (iii) the Overall Coordinator, in its role as such, is acting solely as overall coordinator of the Global Offering; (iv) the Sole Global Coordinator, in its role as such, is acting solely as global coordinator of the Global Offering; (v) each of the Joint Bookrunners, in its role as such, is acting solely as bookrunner of the Global Offering; (vi) each of the Joint Lead Managers, in its role as such, is acting solely as lead manager of the Global Offering;
(vii) each of the CMIs, in its role as such, is acting solely as capital market intermediary of the Global Offering; and (viii) each of the Hong Kong Underwriters, in its role as such, are acting solely as underwriter in connection with the Hong Kong Public Offering.
Each of the Warrantors further acknowledges that the Sole Sponsor, the Overall Coordinator, the Sole Global Coordinator, the Joint Bookrunners, the Joint Lead Managers, the CMIs and the Hong Kong Underwriters are each acting pursuant to a contractual relationship with the Warrantors entered into on an arm’s length basis, and in no event do the parties intend that the Sole Sponsor, the Overall Coordinator, the Sole Global Coordinator, the Joint Bookrunners, the Joint Lead Managers, the CMIS or the Hong Kong Underwriters, as applicable, act or be responsible as a fiduciary or adviser to the Warrantors, their respective directors, supervisors, management, shareholders or creditors or any other person in connection with any activity that the Sole Sponsor, the Overall Coordinator, the Sole Global Coordinator, the Joint Bookrunners, the Joint Lead Managers, the CMIs or the Hong Kong Underwriters, as applicable, may undertake or have undertaken in furtherance of the Global Offering or the listing of the H Shares on the SEHK, either before or after the date hereof.
Each of the Sole Sponsor, the Overall Coordinator, the Sole Global Coordinator, the Joint Bookrunners, the Joint Lead Managers, the CMIs and the Hong Kong Underwriters hereby expressly disclaims any fiduciary or advisory or similar obligations to the Warrantors or any of them, either in connection with the transactions contemplated by this Agreement or otherwise by the Global Offering or the listing of the H Shares on the SEHK or any process or matters leading up to such transactions (irrespective of whether any of the Sole Sponsor, the Overall Coordinator, the Sole Global Coordinator, the Joint Bookrunners, the Joint Lead Managers, the CMIs and the Hong Kong Underwriters has advised or is currently advising the Warrantors or any of them on other matters), and each of the Warrantors hereby confirms its understanding and agreement to that effect. The Warrantors, on the one hand, and the Sole Sponsor, the Overall Coordinator, the Sole Global Coordinator, the Joint Bookrunners, the Joint Lead Managers, the CMIs or the Hong Kong Underwriters, as applicable, on the other hand, agree that they are each responsible for making their own independent judgments with respect to any such transactions and that any opinions or views expressed by the Sole Sponsor, the Overall Coordinator, the Sole Global Coordinator, the Joint Bookrunners, the Joint Lead Managers, the CMIs or the Hong Kong Underwriters, as applicable, to the Warrantors or any of them regarding such transactions, including, but not limited to, any opinions or views with respect to the price or market for the H Shares, do not constitute advice or recommendations to the Warrantors or any of them.
The Warrantors, on the one hand, and each of the Sole Sponsor, the Overall Coordinator, the Sole Global Coordinator, the Joint Bookrunners, the Joint Lead Managers, the CMIs or the Hong Kong Underwriters, as applicable, on the other hand, agree that the Sole Sponsor, the Overall Coordinator, the Sole Global Coordinator, the Joint Bookrunners, the Joint Lead Managers, the CMIs or the Hong Kong Underwriters, as applicable, in their respective roles as such and with respect to transactions carried out
at the request of and for the Company pursuant to their respective appointments as such, are acting as principal and not the agent or fiduciary of any of the Warrantors (except and solely, with respect to the Overall Coordinator, for the limited purposes of arranging payment on behalf of the Company of the Trading Fee and the Transaction Levies as set forth in Clause 5.4, and with respect to the Hong Kong Underwriters, for the limited purposes of procuring applications to purchase Unsold Hong Kong Offer Shares as set forth in Clause 4.6 hereof) nor the fiduciary or adviser of any of the Warrantors, and none of the Sole Sponsor, the Overall Coordinator, the Sole Global Coordinator, the Joint Bookrunners, the Joint Lead Managers, the CMIs and the Hong Kong Underwriters has assumed, or will assume, any fiduciary or advisory or similar responsibility in favour of the Warrantors or any of them with respect to the transactions contemplated by this Agreement or otherwise by the Global Offering or the listing of the H Shares on the SEHK or any process or matter leading up to such transactions (irrespective of whether any of the Sole Sponsor, the Overall Coordinator, the Sole Global Coordinator, the Joint Bookrunners, the Joint Lead Managers, the CMIs and the Hong Kong Underwriters has advised or is currently advising the Warrantors or any of them on other matters).
Each of the Warrantors further acknowledges and agrees that the Sole Sponsor, the Overall Coordinator, the Sole Global Coordinator, the Joint Bookrunners, the Joint Lead Managers, the CMIs and the Hong Kong Underwriters are not advising any of the Warrantors, their respective directors, management or shareholders or any other person as to any legal, Taxation, investment, accounting or regulatory matters in any jurisdiction. Each of the Warrantors shall consult with its own advisors concerning such matters and shall be responsible for making its own independent investigation and appraisal of the transactions contemplated by this Agreement, and none of the Sole Sponsor, the Overall Coordinator, the Sole Global Coordinator, the Joint Bookrunners, the Joint Lead Managers, the CMIs and the Hong Kong Underwriters and their respective directors, supervisors, officers and affiliates shall have any responsibility or liability to any of the Warrantors with respect thereto. Any review by the Sole Sponsor, the Overall Coordinator, the Sole Global Coordinator, the Joint Bookrunners, the Joint Lead Managers, the CMIs and the Hong Kong Underwriters of the Company, the transactions contemplated by this Agreement or otherwise by the Global Offering shall be performed solely for the benefit of the Sole Sponsor, the Overall Coordinator, the Sole Global Coordinator, the Joint Bookrunners, the Joint Lead Managers, the CMIs and the Hong Kong Underwriters and shall not be on behalf of any of the Warrantors.
Additionally, each of the Warrantors further acknowledges that the Sole Sponsor, the Overall Coordinator, the Sole Global Coordinator, the Joint Bookrunners, the Joint Lead Managers, the CMIs and the Hong Kong Underwriters and their respective affiliates may be engaged in a broad range of transactions that involve interests that differ from those of the Warrantors.
Each of the Warrantors hereby waives and releases, to the fullest extent permitted by Laws, any conflict of interests and any claims that such Warrantor may have against each or any of the Sole Sponsor, the Overall Coordinator, the Sole Global Coordinator, the Joint Bookrunners, the Joint Lead Managers, the CMIs and the Hong Kong Underwriters with respect to any breach or alleged breach of any fiduciary, advisory or similar duty to such Warrantor in connection with the transactions contemplated by this Agreement or otherwise by the Global Offering or the listing of the H Shares on the Main Board of SEHK or any process or matter leading up to such transactions.
3.12 No liability for Offer Price and Offering Documents: Notwithstanding anything contained in this Agreement to the contrary, none of the Sole Sponsor, the Overall Coordinator, the Sole Global Coordinator, the Joint Bookrunners, the Joint Lead
Managers, the CMIs and the Hong Kong Underwriters and the other Indemnified Parties (as defined in Clause 12.1 hereof) shall have any liability whatsoever to the Warrantors or any other person in respect of any Loss to any person arising from any transaction carried out by the Sole Sponsor, the Overall Coordinator, the Sole Global Coordinator, the Joint Bookrunners, the Joint Lead Managers, the CMIs and the Hong Kong Underwriters and any other Indemnified Party in respect of the following matters (it being acknowledged by the parties that the Warrantors are solely responsible in this regard):
3.12.1 any alleged insufficiency of the Offer Price or any dealing price of the Offer Shares; and
3.12.2 any of the matters referred to in Clauses 12.1.1 to 12.1.3 (inclusive),
and, notwithstanding anything contained in Clause 12, each Indemnified Party shall be entitled pursuant to the indemnities contained in Clause 12 to recover any Loss incurred or suffered or made as a result of or in connection with any of the foregoing matters.
3.13 Several obligations: Any transaction carried out by any of the appointees pursuant to its appointment under Clauses 3 to 3.8, as applicable, or by any of the delegates under Clause 3.9 of such appointee (other than a purchase of any Hong Kong Offer Shares by such appointee as principal and any stabilisation activity) shall constitute a transaction carried out at the request of, and as agent of, and for the Company and not on account of or for any of the other appointees under Clauses 3 to 3.8 or their respective delegates under Clause 3.9. The obligations of the appointees are several (and not joint or joint and several) and that each appointee shall not be liable for any fraud, misconduct, negligence or default whatsoever of the other parties to this Agreement. None of the appointees under Clauses 3 to 3.8 will be liable for any failure on the part of any of the other appointees to perform their respective obligations under this Agreement and no such failure shall affect the right of any of the other appointees to enforce the terms of this Agreement. Notwithstanding the foregoing, each of the appointees under Clauses 3 to 3.8 shall be entitled to enforce any or all of its rights under this Agreement either alone or jointly with the other appointees.
3.14 Separate liability: Subject to the provisions of the Agreement Among Hong Kong Underwriters (which shall not be binding on or confer any rights upon any persons other than the parties thereto), for the avoidance of doubt none of the Sole Sponsor, the Overall Coordinator, the Sole Global Coordinator, the Joint Bookrunners, the Joint Lead Managers, the CMIs or the Hong Kong Underwriters will be liable for any failure on the part of any Hong Kong Underwriter (apart from its capacity as Hong Kong Underwriter) to perform any of such other Hong Kong Underwriter’s obligations under this Agreement. Notwithstanding the foregoing, each of the Sole Sponsor, the Overall Coordinator, the Sole Global Coordinator, the Joint Bookrunners, the Joint Lead Managers, the CMIs and the Hong Kong Underwriters shall be entitled to enforce any or all of its rights under this Agreement either alone or jointly with any or all of the other Hong Kong Underwriters.
4 THE HONG KONG PUBLIC OFFERING
4.1 Hong Kong Public Offering: The Company shall offer and sell the Hong Kong Offer Shares upon and subject to the terms and conditions set out in the Hong Kong Public Offering Documents and this Agreement. Subject to the registration of the Hong Kong Prospectus by the Company or counsel for the Company on the Company’s behalf, the Company shall cause, the Formal Notice to be published on the official website of the SEHK at www.hkexnews.hk and on the website of the Company at www.fls123.com
as required by relevant Laws or Authority (or such other publication(s) and/or day(s)) as may be agreed by the Company and the Sole Sponsor). The Company will, on the Hong Kong Prospectus Date, publish the Hong Kong Prospectus, the Application Form and the Formal Notice on the official website of the SEHK at www.hkexnews.hk and on the website of the Company at www.fls123.com in accordance with applicable requirements of the Stock Exchange.
4.2 Receiving Banks and Nominee: The Company has appointed the Receiving Banks to receive applications and application monies under the Hong Kong Public Offering and has appointed the Nominee to hold the application monies received by the Receiving Banks under the Hong Kong Public Offering, in each case upon and subject to the terms and conditions contained in the Receiving Banks Agreement. The Company shall procure the Nominee to undertake to hold and deal with such application monies to be received from the Hong Kong Public Offering and the interests accrued thereon upon and subject to the terms and conditions contained in the Receiving Banks Agreement and in accordance with the Hong Kong Public Offering Documents.
4.3 H Share Registrar and HK eIPO White Form Service: The Company has appointed the H Share Registrar to provide services in connection with the processing of the Hong Kong Public Offering Applications upon and subject to the terms and conditions of the Registrar Agreement. The Company has appointed the HK eIPO White Form Service Provider to act as the service provider in relation to the HK eIPO White Form Service upon and subject to the terms and conditions of any separate agreement between them. The Company undertakes to procure the H Share Registrar and the HK eIPO White Form Service Provider to do all such acts and things as may be reasonably required to be done by them in connection with the Hong Kong Public Offering and its associated transactions.
4.4 Application Lists: Subject as mentioned below, the Application Lists will open at 11:45 a.m. on the Acceptance Date and will close at 12:00 noon on the same day, provided that in the event of a tropical cyclone warning signal number 8 or above or a “black” rainstorm warning signal and/or extreme conditions caused by a super typhoon as announced by the government of Hong Kong being in force in Hong Kong at any time between 9:00 a.m. and 12:00 noon on that day, then the Application Lists will open at 11:45 a.m. and close at 12:00 noon on the next Business Day on which no such signal or conditions (as the case may be) remain in force in Hong Kong at any time between 9:00 a.m. and 12:00 noon. All references in this Agreement to the time of opening and closing of the Application Lists shall be construed accordingly.
4.5 Basis of allocation: The Overall Coordinator (on behalf of the Hong Kong Underwriters) shall, as soon as practicable after the close of the Application Lists, determine the manner and the basis of allocation of the Hong Kong Offer Shares. The Company agrees that the Overall Coordinator shall have the exclusive right, in their sole and absolute discretion (to be exercised for itself and on behalf of the Hong Kong Underwriters), upon and subject to the terms and conditions of the Hong Kong Public Offering Documents, the Receiving Banks Agreement and this Agreement, and in compliance with applicable Laws, to reject or accept in whole or in part any Hong Kong Public Offering Application and, where the number of Hong Kong Offer Shares which are the subject of Accepted Hong Kong Public Offering Applications exceeds the total number of Hong Kong Offer Shares initially available under the Hong Kong Public Offering (a “Hong Kong Public Offering Over-Subscription”), to determine the basis of allocation of the Hong Kong Offer Shares.
For the avoidance of doubt the Overall Coordinator’s rights to reject or accept in whole or in part any Hong Kong Public Offering Application includes the power to authorise
the Receiving Banks to do so pursuant to the terms of the Receiving Banks Agreement. The grounds for rejection of any Hong Kong Public Offering Application (including multiple applications and over-subscription) shall be at the sole and absolute discretion of the Overall Coordinator (to be exercised for itself and on behalf of the Hong Kong Underwriters).
The Company shall, and shall procure that the Receiving Banks, the H Share Registrar and the HK eIPO White Form Service Provider to, as soon as practicable after the close of the Application Lists, provide the Overall Coordinator with such information, calculations and assistance as the Overall Coordinator may require for the purposes of determining, inter alia:
4.5.2 in the event of a Hong Kong Public Offering Over-Subscription, the number of times by which the number of Hong Kong Offer Shares which have been applied for pursuant to Accepted Hong Kong Public Offering Applications exceeds the total number of Hong Kong Offer Shares initially available under the Hong Kong Public Offering; and
4.5.3 the basis of allocation of the Hong Kong Offer Shares.
4.6 Several underwriting commitments: Upon and subject to the terms and conditions of this Agreement and in reliance upon the Warranties, if and to the extent that by 12:00 noon on the Acceptance Date there shall remain any Hong Kong Offer Shares which have not been applied for pursuant to Accepted Hong Kong Public Offering Applications (a “Hong Kong Public Offering Under-Subscription”), the Hong Kong Underwriters (other than any Hong Kong Underwriter whose Hong Kong Public Offering Underwriting Commitment has been reduced by the Hong Kong Underwriter’s Applications of such Hong Kong Underwriter to zero pursuant to the provisions of Clause 4.7) shall, subject as provided in Clauses 4.10, 4.11.1 and 4.12, procure applications to purchase, or failing which themselves as principals apply to purchase at the Offer Price, the number of Hong Kong Offer Shares remaining available as a result of the Hong Kong Public Offering Under-Subscription (the “Unsold Hong Kong Offer Shares”), as the Overall Coordinator may in its sole and absolute discretion determine, in accordance with the terms and conditions set forth in the Hong Kong Public Offering Documents (other than as to the deadline for making the application and the terms regarding payment procedures), provided that:
4.6.1 the obligations of the Hong Kong Underwriters with respect to the Unsold Hong Kong Offer Shares under this Clause 4.6 shall be several (and not joint or joint and several);
4.6.2 the number of Unsold Hong Kong Offer Shares which each Hong Kong Underwriter is obligated to apply to purchase or procure applications to purchase under this Clause 4.6 shall be calculated by applying the formula below (but shall not in any event exceed the maximum number of Hong Kong Offer Shares as set forth opposite the name of such Hong Kong Underwriter in Part 2 of Schedule 1):
[ N = T x
(C − P ) ] (AC − AP)
where in relation to such Hong Kong Underwriter:
N is the number of Unsold Hong Kong Offer Shares which such Hong Kong Underwriter is obligated to apply to purchase or procure applications to purchase under this Clause 4.6, subject to such adjustment as the Overall Coordinator may determine to avoid fractional shares;
T is the total number of Unsold Hong Kong Offer Shares determined after taking into account any reduction pursuant to Clauses 4.10, 4.11.1 and 4.12, as applicable;
C is the Hong Kong Public Offering Underwriting Commitment of such Hong Kong Underwriter;
P is the number of Hong Kong Offer Shares comprised in the Hong Kong Underwriter’s Applications of such Hong Kong Underwriter;
AC is the aggregate number of Hong Kong Offer Shares determined after taking into account any reduction pursuant to Clauses 2.6, 4.10, 4.11.1 and 4.12, as applicable; and
AP is the aggregate number of Hong Kong Offer Shares comprised in the Hong Kong Underwriter’s Applications of all the Hong Kong Underwriters; and
None of the Hong Kong Underwriters (either jointly, severally or jointly and severally) will be liable for any failure on the part of any of the other Hong Kong Underwriters to perform its obligations under this Clause 4.6 or otherwise under this Agreement. Notwithstanding the foregoing, each of the Hong Kong Underwriters shall be entitled to enforce any or all of its rights under this Agreement either alone or jointly with the other Hong Kong Underwriters.
4.7 Hong Kong Underwriters’ set-off: In relation to each Hong Kong Public Offering Application made or procured to be made by any of the Hong Kong Underwriters otherwise than pursuant to the provisions of Clause 4.9, the Hong Kong Public Offering Underwriting Commitment of such Hong Kong Underwriter shall, subject to the applications having been marked with the name of such Hong Kong Underwriter and to such Hong Kong Public Offering Application having been accepted (whether in whole or in part) pursuant to the provisions of Clause 4.5 and thus becoming an Accepted Hong Kong Public Offering Application, be reduced pro tanto by the number of Hong Kong Offer Shares accepted pursuant to and comprised in such Accepted Hong Kong Public Offering Application until the Hong Kong Public Offering Underwriting Commitment of such Hong Kong Underwriter is reduced to zero. Detailed provisions relating to the set-off of the Hong Kong Public Offering Underwriting Commitment of a Hong Kong Underwriter are set out in Schedule 4.
4.8 Accepted Applications: The Company agrees that all duly completed and submitted applications received prior to the closing of the Application Lists and accepted by the Overall Coordinator pursuant to Clause 4.5, either in whole or in part, will be accepted by the Company before calling upon the Hong Kong Underwriters or any of them to perform their obligations under Clause 4.6.
4.9 Applications and payment for Unsold Hong Kong Offer Shares: In the event of a Hong Kong Public Offering Under-Subscription, the Overall Coordinator shall, subject to receiving the relevant information, calculations and assistance from the Receiving Banks and the H Share Registrar pursuant to Clause 4.5.1, notify each of the Hong Kong Underwriters as soon as practicable and in any event by 5:00 p.m. on the first Business Day after the Acceptance Date of the number of Unsold Hong Kong Offer Shares to be taken up pursuant to Clause 4.6, and each of the Hong Kong Underwriters shall, as soon as practicable and in any event not later than 10:00 a.m. on the first Business Day after such notification and subject to the Conditions having been duly fulfilled or waived in accordance with the terms of this Agreement:
4.9.1 deliver to the Overall Coordinator duly completed applications for such number of Unsold Hong Kong Offer Shares as fall to be taken up by it pursuant to Clause 4.6 specifying the names and addresses of the applicants and the number of Hong Kong Offer Shares to be allocated to each such applicant; and
4.9.2 on the Listing Date, against the Company duly allotting, issuing and delivering of such Hong Kong Offer Shares to the Hong Kong Underwriters, pay, or procure to be paid, to the Nominee the aggregate amount payable on application in respect of the Offer Price for such number of Unsold Hong Kong Offer Shares as fall to be taken up by it pursuant to Clause 4.6 (which shall include all amounts on account of the Brokerage, the Trading Fee and the Transaction Levies in accordance with the terms of the Hong Kong Public Offering) provided that while such payments may be made through the Overall Coordinator on behalf of the Hong Kong Underwriters at their discretion and without obligation, the Overall Coordinator shall not be responsible for the failure by any Hong Kong Underwriter (apart from itself in its capacity as a Hong Kong Underwriter) to make such payment,
4.10 Power of the Overall Coordinator to make applications: In the event of a Hong Kong Public Offering Under-Subscription, the Overall Coordinator shall have the right (to be exercised at its sole and absolute discretion and in relation to which it is under no obligation to exercise) to apply to purchase or procure applications to purchase (subject to and in accordance with this Agreement) all or any of the Unsold Hong Kong Offer Shares which any Hong Kong Underwriter is required to take up pursuant to Clause 4.6. Any application submitted or procured to be submitted by the Overall Coordinator pursuant to this Clause 4.10 in respect of which payment is made mutatis mutandis in accordance with Clause 4.9 shall satisfy pro tanto the obligation of the relevant Hong Kong Underwriter under Clause 4.6 but shall not affect any agreement or arrangement among the Hong Kong Underwriters regarding the payment of Underwriting Commission.
4.11 Reallocation where the International Offer Shares are fully subscribed or oversubscribed:
Where the International Offer Shares are fully subscribed or oversubscribed:
4.11.2 if the number of Hong Kong Offer Shares validly applied for under the Hong Kong Public Offering represents less than 15 times the number of the Hong Kong Offer Shares initially available for subscription under the Hong Kong Public Offering, then the Overall Coordinator has the discretion (but shall not be under any obligation) to reallocate up to 1,213,600 Offer Shares to the Hong Kong Public Offering from the International Offering, so that the total number of the Offer Shares available under the Hong Kong Public Offering will be increased to 2,427,200 Offer Shares, representing 20% of the number of the Offer Shares initially available under the Global Offering, provided that the final Offer Price must be fixed at the low end of the indicative Offer Price range;
4.11.3 if the number of Hong Kong Offer Shares validly applied for under the Hong Kong Public Offering represents 15 times or more but less than 50 times the number of the Hong Kong Offer Shares initially available for subscription under the Hong Kong Public Offering, the number of Offer Shares to be reallocated to the Hong Kong Public Offering from the International Offering will be increased so that the total number of the Offer Shares available under the Hong Kong Public Offering will be 3,640,800 Offer Shares, representing 30% of the Offer Shares initially available under the Global Offering;
4.11.4 if the number of Hong Kong Offer Shares validly applied for under the Hong Kong Public Offering represents 50 times or more but less than 100 times the number of the Hong Kong Offer Shares initially available for subscription under the Hong Kong Public Offering, the number of Offer Shares to be reallocated to the Hong Kong Public Offering from the International Offering will be increased so that the total number of the Offer
Shares available under the Hong Kong Public Offering will be 4,854,400 Offer Shares, representing 40% of the Offer Shares initially available under the Global Offering; and
4.11.5 if the number of Hong Kong Offer Shares validly applied for under the Hong Kong Public Offering represents 100 times or more the number of the Hong Kong Offer Shares initially available for subscription under the Hong Kong Public Offering, the number of the Offer Shares to be reallocated to the Hong Kong Public Offering from the International Offering will be increased so that the total number of the Offer Shares available under the Hong Kong Public Offering will be 6,068,000 Offer Shares, representing 50% of the Offer Shares initially available under the Global Offering,
4.12 Reallocation where the International Offer Shares are undersubscribed:
Where the International Offer Shares are undersubscribed:
4.12.1 if the Hong Kong Offer Shares are undersubscribed, the Global Offering will not proceed unless the Underwriters would subscribe or procure subscribers for their respective applicable proportions of the Offer Shares being offered which are not taken up under the Global Offering on the terms and conditions of the Hong Kong Public Offering Documents, this Agreement and the International Underwriting Agreement; and
4.12.2 If the Hong Kong Offer Shares are oversubscribed, irrespective of the number of times the number of Offer Shares initially available for subscription under the Hong Kong Public Offering, the Overall Coordinator has the discretion (but shall not be under any obligation) to reallocate up to 1,213,600 Offer Shares to the Hong Kong Public Offering from the International Offering, so that the total number of the Offer Shares available under the Hong Kong Public Offering will be increased to 2,427,200 Offer Shares, representing 20% of the number of the Offer Shares initially available under the Global Offering, provided that the final Offer Price must be fixed at the low end of the indicative Offer Price range.
In each of the events of reallocation set out in Clauses 4.11 and 4.12 (other than reallocation under Clause 4.11.1), the number of Offer Shares allocated to the International Offering will be correspondingly reduced, and the International Offering Underwriting Commitment of the International Underwriters shall be reduced, as the Overall Coordinator may in its sole and absolute discretion determine. Such Offer Shares reallocated from the International Offering to the Hong Kong Public Offering will be allocated between Pool A and Pool B (as described in the Hong Kong Prospectus) in the Hong Kong Public Offering. The Hong Kong Underwriters will not be entitled to the Underwriting Commission in respect of such reallocated Offer Shares. The International Underwriters will be entitled to the Underwriting Commission and the Incentive Fee (if any) in respect of such reallocated Offer Shares. For the avoidance of doubt, the Offer Shares to be subscribed for by the Cornerstone Investor (as defined in the section of the Hong Kong Prospectus headed “Cornerstone Placing”) may be
adjusted by any reallocation of Offer Shares between the International Offering and the Hong Kong Offering.
4.13 Hong Kong Underwriters’ obligations cease: All obligations and liabilities of the Hong Kong Underwriters under this Agreement will cease and be fully discharged following payment by or on behalf of the Hong Kong Underwriters in accordance with Clause 4.6, Clause 4.9 or Clause 4.10 or upon a Hong Kong Public Offering Over- Subscription having occurred (save in respect of any antecedent breaches under this Agreement). Further, none of the Overall Coordinator or the Hong Kong Underwriters will be liable for any failure by any other Hong Kong Underwriter to perform any of such other Hong Kong Underwriter’s obligations under this Agreement.
4.14 Implementation of the Hong Kong Public Offering: Without prejudice to the foregoing obligations, the Warrantors jointly and severally undertake with the Sole Sponsor, the Overall Coordinator, the Sole Global Coordinator, the Joint Bookrunners, the Joint Lead Managers, the CMIs and the Hong Kong Underwriters to give all such assistance and to provide all such information and do (or procure to be done) all such other acts and things required by the Sole Sponsor, the Overall Coordinator, the Sole Global Coordinator, the Joint Bookrunners, the Joint Lead Managers, the CMIs and the Hong Kong Underwriters to implement the Hong Kong Public Offering and to comply with all requirements so as to enable the listing of, and permission to deal in, the H Shares on the SEHK to be granted by the Listing Committee.
5 ALLOTMENT AND PAYMENT
5.1 Issue of Hong Kong Offer Shares: Upon receipt by the H Share Registrar of the Accepted Hong Kong Public Offering Applications, the Company shall as soon as practicable following announcement of the basis of allocation of the Hong Kong Offer Shares and in any event no later than 9:00 a.m. on November 9, 2023 (being the date specified in the Hong Kong Prospectus for the despatch of share certificates):
5.1.1 duly allot and issue, conditional upon the fulfilment of the Conditions (unless modified or waived in accordance with the terms of this Agreement), the Hong Kong Offer Shares in accordance with the relevant sections of the Hong Kong Public Offering Documents, the International Underwriting Agreement and this Agreement to the successful applicants and in the numbers specified by the Overall Coordinator on terms that it ranks pari passu in all respects with the existing issued Shares, including the right to rank in full for all distributions declared, paid or made by the Company after the time of their allotment, and that they will rank pari passu in all respects with the International Offer Shares;
5.1.2 procure that the names of the successful applicants (or, where appropriate, HKSCC Nominees Limited) shall be entered in the H share register of members of the Company accordingly (without payment of any registration fee); and
5.1.3 procure that share certificates in respect thereof (each in a form complying with the Listing Rules and in such number and denominations as directed by the Overall Coordinator) shall be issued and despatched, or delivered or released to successful applicants (or where appropriate, HKSCC for immediate credit to such CCASS stock accounts as shall be notified by the Overall Coordinator to the Company for such purpose), or made available for collection (as applicable) as provided for in the Hong Kong Public Offering Documents and this Agreement.
5.2 Payment to the Company: The application monies received in respect of Hong Kong Public Offering Applications and held by the Nominee will be paid in Hong Kong dollars to the Company at or around 9:15 a.m. on the Listing Date (subject to and in accordance with the provisions of the Receiving Banks Agreement and this Agreement) upon the Nominee receiving written confirmation from the Overall Coordinator that the Conditions have been fulfilled or waived and that share certificates have been despatched to successful applicants of the Hong Kong Offer Shares (or to HKSCC Nominees Limited, as the case may be) by wire transfer in immediately available funds to such account or accounts in Hong Kong specified by the Company (details of which will be notified to the Overall Coordinator in writing as soon as practicable after the signing of this Agreement but, in any event, by no later than the day that is four Business Days preceding the Listing Date); provided, however, that:
5.2.2 to the extent that the amounts deducted by the Nominee under Clause 5.2.1 are insufficient to cover, or the Nominee does not or will not deduct in accordance with Clause 5.2.1, the amounts payable by the Company pursuant to Clause
5.3 and 5.4, the Company shall, and the Warranting Shareholders shall procure the Company to, pay or cause to be paid in full, on and at the date and time of payment of the application monies to the Company as aforesaid or forthwith upon demand subsequent to such date and time, the shortfall or the amounts not so deducted, as applicable, to the Overall Coordinator (for itself and on behalf of the Hong Kong Underwriters, as applicable) or to the relevant party entitled to the amount payable by the Company.
The net amount payable to the Company pursuant to this Clause 5.2 will (for the avoidance of doubt and if applicable) be calculated after allowing for entitlements of successful applicants under the Hong Kong Public Offering to refunds of application monies (including the Brokerage, the Trading Fee and the Transaction Levies) if and to the extent that the Offer Price shall be determined at below HK$14.18 per Offer Share.
5.3 Brokerage, Trading Fee and Transaction Levies for applicants: Subject to receipt of the applicable amount pursuant to Clause 6.2, the Overall Coordinator will, on behalf of the Hong Kong Underwriters, arrange for the payment by the Nominee on behalf of all successful applicants under the Hong Kong Public Offering to the persons entitled thereto of the Brokerage, the Trading Fee and the Transaction Levies in respect of the Accepted Hong Kong Public Offering Applications, such amounts to be paid out of the application monies received in respect of Hong Kong Public Offering Applications. The Overall Coordinator is hereby irrevocably and unconditionally authorised by the Company to direct the Nominee to deduct and pay such amounts.
5.4 Trading Fee and Transaction Levies for the Company: Subject to receipt of the applicable amount pursuant to Clause 6.3, the Overall Coordinator will, on behalf of the Company, arrange for the payment by the Nominee of the Trading Fee and the Transaction Levies payable by the Company in respect of the Accepted Hong Kong Public Offering Applications, such amounts to be paid out of the application monies
received in respect of Hong Kong Public Offering Applications. The Overall Coordinator is hereby irrevocably and unconditionally authorised by the Company to direct the Nominee to deduct and pay such amounts.
5.5 Refund cheques: The Company will procure that, in accordance with the terms of the Receiving Banks Agreement and the Registrar Agreement, the Nominee will pay refunds of applications monies, and the H Share Registrar will arrange for the distribution of refund cheques, to those successful and unsuccessful applicants under the Hong Kong Public Offering who are or may be entitled to receive refunds of application monies (in whole or in part) in accordance with the terms of the Hong Kong Public Offering specified in the Hong Kong Public Offering Documents.
5.6 Separate Bank Account: The Company agrees that the application monies received in respect of Hong Kong Public Offering Applications shall be credited to a separate bank account with the Nominee pursuant to the terms of the Receiving Banks Agreement.
5.7 No responsibility for default: The Company acknowledges and agrees that none of the Sole Sponsor, the Sponsor-OC, the Overall Coordinator, the Sole Global Coordinator, the Joint Bookrunners, the Joint Lead Managers, the CMIs or the Hong Kong Underwriters shall have any liability whatsoever for any default by the Nominee or any other application or otherwise of funds.
6 COMMISSIONS AND COSTS
6.1 Underwriting commission and incentive fee: In consideration of the services of the Hong Kong Underwriters (including the assumption of their respective Hong Kong Public Offering Underwriting Commitment) under this Agreement, the Company shall pay to the Overall Coordinator (for itself and on behalf of the Hong Kong Underwriters) an underwriting commission equal to 3% of the aggregate Offer Price in respect of all of the Hong Kong Offer Shares (excluding any International Offer Shares reallocated to the Hong Kong Public Offering and any Hong Kong Offer Shares reallocated to the International Offering, in each case pursuant to Clause 4) (the “Underwriting Commission”), out of which the Hong Kong Underwriters will meet all (if any) sub- underwriting commissions. The respective entitlements of the Hong Kong Underwriters to the Hong Kong underwriting commission (which may or may not be proportionate to their respective Hong Kong Public Offering Underwriting Commitment) will be paid as separately agreed between the Company and the Overall Coordinator as set out in this Agreement or the International Underwriting Agreement. In addition, the Company shall pay to the Overall Coordinator and any or all of the other Hong Kong Underwriters an aggregate incentive fee of up to 1% of the aggregate Offer Price for each Offer Share (excluding any International Offer Shares reallocated to the Hong Kong Public Offering and any Hong Kong Offer Shares reallocated to the International Offering, in each case pursuant to Clause 4) (the “Incentive Fee”).
6.2 Costs payable by the Company: All costs, expenses, fees, charges and Taxation in connection with or incidental to the Global Offering, the listing of the H Shares on the SEHK and this Agreement and the transactions contemplated thereby or hereby, including the following:
6.2.1 any and all fees of the Sole Sponsor which remains unpaid according to the Sole Sponsor and Sponsor-OC Mandate Letter and all expenses of the Sole Sponsor, Overall Coordinator and Sole Global Coordinator payable pursuant to the Sole Sponsor and Sponsor-OC Mandate Letter;
6.2.2 all fees, disbursements and expenses of the Reporting Accountants;
6.2.3 all fees, disbursements and expenses of HKSCC, the H Share Registrar, the transfer agent and the HK eIPO White Form Service Provider;
6.2.4 all fees, disbursements and expenses of the Industry Expert;
6.2.5 all fees, disbursements and expenses of all legal advisers to the Company and all fees, disbursements and expenses of all legal advisers to the Underwriters, the Overall Coordinator, the Sole Global Coordinator and the Sole Sponsor, in accordance with the relevant engagement letters entered into between the Company and such legal advisers;
6.2.6 all fees, disbursements and expenses of the Internal Controls Consultant;
6.2.7 all fees, disbursements and expenses of any public relations consultants engaged by the Company;
6.2.8 all fees, disbursements and expenses of the financial printer (including all translation and translators fees) retained by the Company for the Global Offering;
6.2.9 all fees, disbursements and expenses of the Receiving Banks and the Nominee;
6.2.10 all fees, disbursements and expenses of other agents and advisers of the Company engaged by the Company relating to the Global Offering;
6.2.11 all fees, disbursements and expenses related to the application for listing of the H Shares on the SEHK, the Share Conversion, the filing or registration of any documents (including, without limitation, the Hong Kong Public Offering Documents), and any amendments and supplements thereto, with any relevant Authority (including, without limitation, the Registrar of Companies in Hong Kong and the CSRC) and the qualification of the Offer Shares in any jurisdiction and the determination of their eligibility for investment under applicable laws;
6.2.12 all roadshow costs and expenses (including pre-deal or non-deal roadshow or investor education, and all fees and expenses of any consultant engaged by the Company in connection with the road show presentation) incurred by the Company;
6.2.13 all costs and expenses relating to presentations or meetings undertaken in connection with the marketing of the offering and sale of the Offer Shares to prospective investors incurred by the Company;
6.2.14 all printing and advertising costs approved by the Company;
6.2.15 all costs of preparation, printing, filing, despatch and distribution of the Offering Documents, the Hong Kong Information Pack and all amendments and supplements thereto, in all relevant jurisdictions;
6.2.16 all costs of preparing, printing or producing any Agreement Among International Underwriters, the Agreement Among Hong Kong Underwriters, this Agreement, the International Underwriting Agreement, the Agreement Between Syndicates, closing documents (including compilations thereof) and
any other documents in connection with the offering, purchase, sale and delivery of the Offer Shares;
6.2.17 all costs and expenses of conducting the syndicate analysts’ briefing and other presentations relating to the Global Offering and for printing and distribution of research reports approved by the Company;
6.2.18 all costs of preparation, printing, despatch and distribution (including transportation, packaging and insurance) of share certificates, letters of regret and refund cheques;
6.2.19 all Trading Fee and Transaction Levies payable by the Company, and all stamp and capital duty (if any), premium duty (if any) and any other fees, charges, expenses, Taxes and levies payable, in respect of the creation, issue, allotment, sale and delivery of the Offer Shares pursuant to the Global Offering, the Share Conversion and the execution and delivery of, and the performance of any provisions of, this Agreement by the Company;
6.2.20 all costs and expenses related to the launching of the Global Offering (including expenses related to international bookbuilding, travel, accommodation, printing, telecommunication and other out-of-pocket expenses) approved by the Company;
6.2.21 all costs and expenses related to the investor luncheon and press conferences in relation to the Global Offering approved by the Company;
6.2.22 fees and expenses related to litigation searches, winding up / bankruptcy searches, directorship searches and other background searches in connection with the Global Offering approved by the Company;
6.2.23 all CCASS transaction fees payable in connection with the Global Offering and the Share Conversion; and
6.2.24 all other fees, costs and expenses reasonably and properly incurred by the Sole Sponsor, the Overall Coordinator, the Sole Global Coordinator, the Joint Bookrunners, the Joint Lead Managers, the CMIs and/or the Hong Kong Underwriters, or any of them on their behalf, in connection with the Global Offering or incidental to the performance of the obligations of the Company pursuant to this Agreement which are not otherwise specifically provided for in this Clause 6.2 and provided that the incurrence of any such fees, costs and expenses have been agreed by the Company,
shall be borne by the Company, and the Company shall, and the Warranting Shareholders shall procure the Company to, pay or cause to be paid all such costs, expenses, fees, charges and Taxation.
6.3 Costs remaining payable if the Global Offering does not proceed: If this Agreement shall be terminated or shall not become unconditional or, for any other reason, the Global Offering is not completed, the Company shall not be liable to pay any Underwriting Commission or Incentive Fee under Clause 6.1, but the Company shall, and the Warranting Shareholders shall procure the Company to, pay or reimburse or cause to be paid or reimbursed all costs, expenses, fees, charges and Taxation referred to in Clause 6.2 which have been incurred or are liable to be paid by the Overall Coordinator, the Sole Global Coordinator, the Joint Bookrunners, the Joint Lead Managers, the CMIs, the Hong Kong Underwriters and/or the Sole Sponsor, and all
other costs, expenses, fees, charges and Taxation payable by the Company pursuant to Clause 6.2, forthwith and within 30 calendar days upon written demand by the Overall Coordinator, the Sole Global Coordinator, the Joint Bookrunners, the Joint Lead Managers, the CMIs, the Hong Kong Underwriters or the Sole Sponsor or the relevant party which incurred the costs, expenses, fees, charges and Taxation, as the case may be.
6.4 Timing of payments: All commissions, fees, costs, charges, expenses and Taxation referred to in this Clause 6 shall, if not so deducted pursuant to Clause 5.2, be payable by the Company (a) as soon as possible, and in any event within 30 calendar days upon the first written demand by the Overall Coordinator and/or the Sole Sponsor or (b) in accordance with the engagement letter or agreement entered into by the Company and the relevant parties, whichever is the earlier. All payments to be made by the Company under this Clause 6 are exclusive of goods and services tax, value added tax and/or similar taxes and shall be paid free and clear of and without deduction or withholding for or on account of, any present or future Taxation or any interest, additions to Taxation, penalties or similar liabilities with respect thereto. The calculation by the Overall Coordinator or the Sole Sponsor of the amount payable or deductible shall be conclusive in the absence of manifest error.
7 STABILISATION
7.1 Stabilising manager and stabilisation actions: The Company acknowledges that HTI Securities, to the exclusion of all others, is appointed to act as the Stabilising Manager in connection with the Global Offering and may (but with no obligation and not as agent for the Company), to the extent permitted by applicable Laws, make purchases, over-allocate and/or effect any other transactions in the market or otherwise take such stabilising action(s), after consultation with the Overall Coordinator, with a view to supporting, stabilising or maintaining the market price of the H Shares at a level higher than that which might otherwise prevail in the open market for a limited period commencing on the Listing Date and ending on the 30th day after the last day for lodging of the Application Forms. The Stabilising Manager may, in its sole and absolute discretion, appoint any person to be its agent for the purposes of taking any stabilisation action. Any such agent shall have the rights and authorities conferred upon the Stabilising Manager pursuant to this Clause 7.1. Any stabilisation actions taken by the Stabilising Manager or any person acting for it as stabilising manager shall be conducted in compliance with the Securities and Futures (Price Stabilising) Rules under the Securities and Futures Ordinance and all other applicable Laws and may be discontinued at any time. Each of the Hong Kong Underwriters (other than the Stabilising Manager or any person acting for it) hereby undertakes severally (and not jointly or jointly and severally) to each other party to this Agreement (including the Stabilising Manager, the Overall Coordinator, the Sole Global Coordinator and the Joint Bookrunners) that it will not take or cause or authorise any person to take, and shall cause its affiliates and/or agents not to take, directly or indirectly, any stabilisation action or any action which is designed to or which constitutes or which might be expected to cause or result in the stabilisation or maintenance of the price of any security of the Company.
7.2 Stabilising losses and profits. All liabilities, expenses and losses arising from stabilisation activities and transactions effected by the Stabilising Manager or any person acting for it as stabilising manager shall be for the respective accounts of the International Underwriters in the same proportions, as nearly as may be practicable, as the respective International Offering Underwriting Commitments of the International Underwriters, and may be deducted from the commissions payable to the International Underwriters. All profits or gains arising from stabilising activities and transactions
effected by the Stabilising Manager or any person acting for it as stabilising manager shall be for the account of the Stabilising Manager.
7.3 No stabilisation by the Warrantors: Each of the Warrantors undertakes to the Sole Sponsor, the Overall Coordinator, the Sole Global Coordinator, the Joint Bookrunners, the Joint Lead Managers, the CMIs and the Hong Kong Underwriters and each of them that it will not, and will cause its affiliates or any of its or its affiliates’ respective directors, supervisors, officers, employees, promoters or any person acting on its behalf or on behalf of any of the foregoing persons not to:
7.3.1 take or facilitate, directly or indirectly, any action which is designed to or which has constituted or which might reasonably be expected to cause or result in stabilisation or manipulation of the price of any security of the Company to facilitate the sale or resale of any security of the Company or otherwise; or
7.3.2 take, directly or indirectly, any action which would constitute a violation of the market misconduct provisions of Parts XIII and XIV of the Securities and Futures Ordinance; or
7.3.3 take or omit to take, directly or indirectly, any action which may result in the loss by the Stabilising Manager or any person acting for it as stabilising manager of the ability to rely on any stabilisation safe harbour provided by the Securities and Futures (Price Stabilizing) Rules (Chapter 571W of the Laws of Hong Kong) under the Securities and Futures Ordinance or otherwise,
provided that the granting and exercising of the Over-allotment Option pursuant to this Agreement and the International Underwriting Agreement shall not constitute a breach of this Clause 7.3.
8 REPRESENTATIONS, WARRANTIES AND UNDERTAKINGS
8.1 Warranties: The Warrantors hereby jointly and severally represents, warrants, agrees and undertakes with respect to each of the Warranties in Part A of Schedule 2 hereto, and the Warranting Shareholders further jointly and severally represents, warrants, agrees and undertakes with respect to each of the Warranties in Part B of Schedule 2 hereto, to the Sole Sponsor, the Overall Coordinator, the Sole Global Coordinator, the Joint Bookrunners, the Joint Lead Managers, the CMIs and the Hong Kong Underwriters and each of them that each of the Warranties (to the extent applicable) is true, accurate and not misleading as at the date of this Agreement, and each of the Warrantors acknowledges that each of the Sole Sponsor, the Overall Coordinator, the Sole Global Coordinator, the Joint Bookrunners, the Joint Lead Managers, the CMIs and the Hong Kong Underwriters is entering into this Agreement in reliance upon the Warranties. Each Warranty shall be construed separately and independently and shall not be limited or restricted by reference to or inference from the terms of any other of the Warranties or any other term of this Agreement.
8.2 Warranties repeated: The Warranties are given on and as at the date of this Agreement with respect to the facts and circumstances subsisting as at the date of this Agreement. In addition, the Warranties shall be deemed to be given and/or repeated:
8.2.1 on the date of registration of the Hong Kong Prospectus by the Registrar of Companies in Hong Kong as required by section 342C of the Companies (WUMP) Ordinance;
8.2.2 on the Hong Kong Prospectus Date;
8.2.3 on the Acceptance Date;
8.2.4 on the Price Determination Date;
8.2.5 immediately prior to (i) the delivery by the Overall Coordinator and/or the other Hong Kong Underwriters of duly completed Application Forms; and (ii) payment by the Overall Coordinator and/or the other Hong Kong Underwriters for the Hong Kong Offer Shares to be taken up, respectively, pursuant to Clauses 4.6, 4.9 and/or 4.10 (as the case may be);
8.2.6 immediately prior to 8:00 a.m. on the Listing Date; and
8.2.7 immediately prior to commencement of dealings in the H Shares on the SEHK;
8.2.8 the date(s) on which the Over-allotment Option (or any part thereof) is exercised; and
8.2.9 the date on which the stabilization period expires,
8.3 Notice of breach of Warranties: Each of the Warrantors hereby undertakes to forthwith notify the Sole Sponsor and the Overall Coordinator (for itself and on behalf of the Hong Kong Underwriters) in writing if it comes to its knowledge that any of the Warranties is untrue, inaccurate or misleading in any respect or ceases to be true and accurate or becomes misleading in any respect at any time up to the last to occur of the dates and times specified in Clause 8.2 or if it becomes aware of any event or circumstances which would or might cause any of the Warranties to become untrue, inaccurate or misleading in any respect.
8.4 Undertakings not to breach Warranties: Each of the Warrantors hereby undertakes to the Sole Sponsor, the Overall Coordinator, the Sole Global Coordinator, the Joint Bookrunners, the Joint Lead Managers, the CMIs and the Hong Kong Underwriters not to, and shall procure that neither the Company nor any other member of the Group shall, do or omit to do anything or permit to occur any event which would or might render or cause any of the Warranties untrue, incorrect or misleading in any respect at any time up to the last to occur of the dates and times specified in Clause 8.2 or which could materially and adversely affect the Global Offering. Without prejudice to the foregoing, each of the Warrantors agrees not to (i) make any amendment or supplement to the Offering Documents, the Hong Kong Information Pack or any of them without the prior approval of the Sole Sponsor and the Overall Coordinator (for itself and on behalf of the Underwriters).
8.5 Remedial action and announcements: The Company shall notify the Sole Sponsor and the Overall Coordinator promptly if at any time, by reference to the facts and circumstances then subsisting, on or prior to the last to occur of the dates on which the
Warranties are deemed to be given pursuant to the provisions of Clause 8.2, (i) any event shall occur or any circumstance shall exist which renders or could render untrue or inaccurate or misleading in any respect any of the Warranties or gives rise or could give rise to a claim under any of the indemnities as contained in or given pursuant to this Agreement, or (ii) any event shall occur or any circumstance shall exist which would or might (a) render untrue, inaccurate, or misleading any statement, whether of fact or opinion, contained in any of the Offering Documents or the PHIP, or (b) result in the omission of any fact which is material for disclosure or required by applicable Laws to be disclosed in any of the Offering Documents or the PHIP, if the same were issued immediately after the occurrence of such event or existence of such circumstance, or (iii) it shall become necessary or desirable for any other reason to amend or supplement any of the Offering Documents or the PHIP, or (iv) any significant new factor likely to affect the Hong Kong Public Offering or the Global Offering shall arise, and, in each of the cases described in clauses (i) through (iv) above, without prejudice to any other rights of the Sole Sponsor, the Overall Coordinator, the Sole Global Coordinator, the Joint Bookrunners, the Joint Lead Managers, the CMIs, the Hong Kong Underwriters or any of them under this Agreement, the Company, at its own expense, shall promptly take such remedial action as may be required by the Sole Sponsor and/or the Overall Coordinator, including promptly preparing, announcing, issuing, publishing, distributing or otherwise making available, at the Company’s expense, such amendments or supplements to the Offering Documents, the PHIP or any of them as the Sole Sponsor and/or the Overall Coordinator may require and supplying the Sole Sponsor, the Overall Coordinator and/or such persons as they may direct, with such number of copies of such amendments or supplements as they may require.
8.6 Warrantor’s knowledge: A reference in this Clause 8 or in Schedule 2 to a Warrantor’s knowledge, information, belief or awareness or any similar expression shall be deemed to include an additional statement that it has been made after due and careful enquiry. Notwithstanding that any of the Sole Sponsor, the Overall Coordinator, the Sole Global Coordinator, the Joint Bookrunners, the Joint Lead Managers, the CMIs and the Hong Kong Underwriters has knowledge or has conducted investigation or enquiry with respect to the information given under the relevant Warranty, the rights of the Sole Sponsor, the Overall Coordinator, the Sole Global Coordinator, the Joint Bookrunners, the Joint Lead Managers, the CMIs, the Hong Kong Underwriters under this Clause 8 shall not be prejudiced by such knowledge, investigation and/or enquiry.
8.7 Obligations personal: The obligations of the Warrantors under this Agreement shall be binding on its personal representatives or its successors in title.
8.8 Release of obligations: Any liability to the Sole Sponsor, the Overall Coordinator, the Sole Global Coordinator, the Joint Bookrunners, the Joint Lead Managers, the CMIs, the Hong Kong Underwriters or any of them hereunder may in whole or in part be released, compounded or compromised and time or indulgence may be given by the Sole Sponsor, the Overall Coordinator, the Sole Global Coordinator, the Joint Bookrunners, the Joint Lead Managers, the CMIs, the Hong Kong Underwriters or any of them as regards any person under such liability without prejudicing the rights of the Sole Sponsor, the Overall Coordinator, the Sole Global Coordinator, the Joint Bookrunners, the Joint Lead Managers, the CMIs, the Hong Kong Underwriters (or the rights of any of them) against any other person under the same or a similar liability.
8.9 Consideration: The Warrantors have entered into this Agreement, and agreed to give the representations, warranties, agreements and undertakings herein, in consideration of the Sole Sponsor, the Overall Coordinator, the Sole Global Coordinator, the Joint
Bookrunners, the Joint Lead Managers, the CMIs, the Hong Kong Underwriters agreeing to enter into this Agreement on the terms set out herein.
8.10 Full force: For the purpose of this Clause 8:
8.10.1 the Warranties shall remain in full force and effect notwithstanding the completion of the Global Offering and the matters and arrangements referred to or contemplated in this Agreement; and
8.10.2 if an amendment or supplement to the Offering Documents, the PHIP or any of them is announced, issued, published, distributed or otherwise made available after the date hereof pursuant to Clause 8.5 or otherwise, the Warranties relating to any such documents given pursuant to this Clause 8 shall be deemed to be repeated on the date of such amendment or supplement and when so repeated, the Warranties relating to any such documents shall be read and construed subject to the provisions of this Agreement as if the references therein to such documents means such documents when read together with such amendment or supplement.
8.11 No issuance or publication of documents or information: Save for the Offering Documents, each of the Warrantors agrees not to issue, publish, distribute or make publicly available any announcement, circular, document or information in relation to the Global Offering or any matters relating thereto (including but not limited to any documents that may be issued under Clause 8.5) without the prior written consent of the Overall Coordinator (for itself and on behalf of the Hong Kong Underwriters) and the Sole Sponsor, except as required by applicable Laws or rules of the relevant stock exchange, in which case the Warrantors shall first consult the Overall Coordinator (for itself and on behalf of the Hong Kong Underwriters) and the Sole Sponsor before such issue, publication or distribution, and such announcement, circular document or information shall be issued or distributed in such form as satisfactory to the Overall Coordinator and the Sole Sponsor. If any matter or event referred to in this Clause 8.10 shall have occurred, nothing herein shall prejudice any rights that the Sole Sponsor, the Overall Coordinator, the Sole Global Coordinator, the Joint Bookrunners, the Joint Lead Managers, the CMIs or the Hong Kong Underwriters may have in connection with the occurrence of such matter or event, including, without limitation, its rights under Clause 11.
9 RESTRICTIONS ON ISSUE OR DISPOSAL OF SECURITIES
9.1 Lock-up on the Company: The Company hereby undertakes to each of the Sole Sponsor, the Overall Coordinator, the Sole Global Coordinator, the Joint Bookrunners, the Joint Lead Managers, the CMIs, the Hong Kong Underwriters that, except for the issue, offer or sale of the Offer Shares pursuant to the Global Offering (including pursuant to the exercise of the Over-Allotment Option), not to, and to procure each other member of the Group not to, without the prior written consent of the Sole Sponsor and the Overall Coordinator (for itself and on behalf of the Hong Kong Underwriters) and unless in compliance with the Listing Rules, at any time during the period commencing on the date of this Agreement and ending on, and including, the date that is six months after the Listing Date (the “First Six-Month Period”):
9.1.1 allot, issue, sell, accept subscription for, offer to allot, issue or sell, contract or agree to allot, issue or sell, mortgage, charge, pledge, hypothecate, lend, grant or sell any option, warrant, contract or right to subscribe for or purchase, grant or purchase any option, warrant, contract or right to allot, issue or sell, or otherwise transfer or dispose of or create an Encumbrance over, or agree to
transfer or dispose of or create an Encumbrance over, either directly or indirectly, conditionally or unconditionally, any Shares or any other securities of any of the Group Companies, as applicable, or any interest in any of the foregoing (including, without limitation, any securities convertible into or exchangeable or exercisable for or that represent the right to receive, or any warrants or other rights to purchase, any Shares or any other securities of any of the Group Companies, as applicable, or any interest in any of the foregoing) or deposit any Shares or any other securities of any of the Group Companies, as applicable, with a depositary in connection with the issue of depositary receipts; or
9.1.2 enter into any swap, derivative or other arrangement that transfers to another, in whole or in part, any of the economic consequences of subscription or ownership of any Shares or any other securities of any of the Group Companies or any interest in any of the foregoing (including, without limitation, any securities convertible into or exchangeable or exercisable for, or that represent the right to receive, or any warrants or other rights to purchase, any Shares or any other securities of any of the Group Companies, as applicable, or any interest in any of the foregoing); or
9.1.3 enter into any transaction with the same economic effect as any transaction set out in Clause 9.1.1 or 9.1.2 above; or
9.1.4 offer or agree or contract to effect any transaction set out in Clause 9.1.1, 9.1.2 or 9.1.3 above or publicly announce any intention to do so,
in each case, whether any of the transactions specified in Clause 9.1.1, 9.1.2 or 9.1.3 above is to be settled by delivery of Shares or other securities of any of the Group Companies, as applicable, or in cash or otherwise (whether or not the issue of such Shares or other securities will be completed within the First Six-Month Period). In the event that, during the six month period commencing on the date on which the First Six- Month Period expires (the “Second Six-Month Period”), the Company enters into any of the transactions set out in Clause 9.1.1, 9.1.2 or 9.1.3 above or offers or agrees or contracts to, or publicly announces an intention to, enter into any such transactions, the Company shall take all reasonable steps to ensure compliance with applicable legal and regulatory requirements relating to the avoidance of creating a disorderly or false market in the Shares or other securities of any of the Group Companies, where applicable. Each of the Warranting Shareholders also undertakes to each of the Sole Sponsor, the Overall Coordinator, the Sole Global Coordinator, the Joint Bookrunners, the Joint Lead Managers, the CMIs and the Hong Kong Underwriters to procure the Company’s compliance with the foregoing undertakings.
9.2 Lock-up on the Warranting Shareholders: each of the Warranting Shareholders hereby undertakes to each of the Company, the Sole Sponsor, the Overall Coordinator, the Sole Global Coordinator, the Joint Bookrunners, the Joint Lead Managers, the CMIs and the Hong Kong Underwriters, that, without the prior written consent of the Sole Sponsor and the Overall Coordinator (for itself and on behalf of the Hong Kong Underwriters) and unless in compliance with the Listing Rules:
9.2.1 save for any pledge or charge of Shares or other securities of the Company (in respect of which it is shown in the Hong Kong Prospectus as the beneficial owner or as having any deemed or other interest) or any interest in any of the foregoing (including without limitation, any securities convertible into or
exchangeable or exercisable for or that represent the right to receive, or any warrants or other rights to purchase, any Shares or any other securities of the Company) by him or it as security in favor of an authorized institution (as defined in the Banking Ordinance (Chapter 155 of the Laws of Hong Kong) for a bona fide commercial loan, during the First Six-Month Period, he or it will not and will procure that none of his or its affiliates will:
(i) offer, pledge, charge, sell, offer, contract or agree to sell, pledge, assign, mortgage, charge, hypothecate, lend, grant or sell (or agree to grant or sell) any option, warrant, contract or right to subscribe for or purchase, grant or purchase (or agree to grant or purchase) any option, warrant, contract or right to sell, lend or otherwise transfer or dispose of, make any short sale, or otherwise transfer or dispose of or create an Encumbrance over, or agree to transfer or dispose of or create an Encumbrance over, either directly or indirectly, conditionally or unconditionally, any Shares or other securities of the Company or any interest therein (including but not limited to any securities convertible into or exchangeable for, or that represent the right to receive, or any warrants or other rights to purchase, any Shares or other securities of the Company, directly or indirectly held by him or it as of the date hereof;
(ii) enter into any swap, derivative or other arrangement that transfers to another, in whole or in part, any of the economic consequences of ownership of any Shares or other securities of the Company or any interest therein (including, without limitation, any securities convertible into or exchangeable or exercisable for, or that represent the right to receive, or any warrants or other rights to purchase, any Shares or other securities of the Company) directly or indirectly held by him or it as of the date hereof;
(iii) enter into any transaction with the same economic effect as any transaction set out in paragraphs (i) or (ii); or
(iv) publicly disclose that it will or may enter into any transaction set out in paragraphs (i), (ii) or (iii),
whether any of the transaction set out in (i), (ii) or (iii) is to be settled by delivery of such capital or securities of the Company, in cash or otherwise (whether or not the issue of such Shares or other shares or securities will be completed within the First Six-Month Period);
9.2.2 during the Second Six-Month Period, he or it will not enter into any transaction described in Clauses 9.2.1(i), (ii) or (iii) or offer, agree or contract to or publicly announce any intention to enter into any such transaction if, immediately following such transaction, he or it will cease to be a Controlling Shareholder; and
9.2.3 until the expiry of the Second Six-Month Period, in the event that he or it enters into any such transactions specified in Clauses 9.2.1(i), (ii) or (iii) or offers, agrees or contracts to, or publicly announces an intention to enter into any such transaction, he or it will notify the Sole Sponsor and the Overall Coordinator and take all reasonable steps to ensure that he or it will not create a disorderly or false market in the securities of the Company; and
9.2.4 at any time after the date hereof up to and including the date falling 12 months after the Listing Date, he or it shall:
(i) if and when he or it pledges or charges any Shares or other securities of the Company (or any interests therein) beneficially owned by him or it, immediately inform the Company, the Sole Sponsor and the Overall Coordinator in writing of such pledge or charge together with the number of Shares or other securities (or interests therein) so pledged or charged; and
(ii) if and when he or it receives indications, either verbal or written, from any pledgee or chargee that any of the pledged or charged Shares or other securities (or interests therein) of the Company will be disposed of, immediately inform the Company, the Sole Sponsor and the Overall Coordinator in writing of such indications.
The Company agrees and undertakes that upon receiving such information in writing from a Warranting Shareholder, it shall, as soon as practicable and if required pursuant to the Listing Rules, notify SEHK and make an announcement in relation to such information in accordance with applicable requirements of the Listing Rules.
9.3 Maintenance of public float: The Company agrees and undertakes to each of the Sole Sponsor, the Overall Coordinator, the Sole Global Coordinator, the Joint Bookrunners, the Joint Lead Managers, the CMIs and the Hong Kong Underwriters that it will not, and each of the Warranting Shareholders further undertakes to each of the Sole Sponsor, the Overall Coordinator, the Sole Global Coordinator, the Joint Bookrunners, the Joint Lead Managers, the CMIs and the Hong Kong Underwriters to procure that the Company will not, effect any purchase of Shares, or agree to do so, which may reduce the holdings of Shares held by the public (as defined in Rule 8.24 of the Listing Rules) below 25% on or before the date falling six months after the Listing Date without first having obtained the prior written consent of the Sole Sponsor and the Overall Coordinator (for itself and on behalf of the Hong Kong Underwriters).
9.4 Full force: The undertakings in this Clause 9 shall remain in full force and effect notwithstanding the completion of the Global Offering and the matters and arrangements referred to or contemplated in this Agreement.
10 FURTHER UNDERTAKINGS
The Company undertakes to the Sole Sponsor, the Overall Coordinator, the Sole Global Coordinator, the Joint Bookrunners, the Joint Lead Managers, the CMIs and the Hong Kong Underwriters and each of them that it will, and each of the Warranting Shareholders shall procure the Company to:
10.1 Global Offering: comply in all respects with the terms and conditions of the Global Offering and all obligations imposed upon it by the Companies Ordinance, the Companies (WUMP) Ordinance, the Securities and Futures Ordinance, the Listing Rules, the CSRC Rules and all applicable Laws and all requirements of the SEHK, the SFC, the CSRC or any other applicable Authority in respect of or by reason of the matters contemplated by this Agreement or otherwise in connection with the Global Offering, including, without limitation:
10.1.1 doing all such things (including but not limited to providing such information and paying all such fees) as are necessary to ensure that Admission is obtained and not cancelled or revoked;
10.1.2 making all necessary Approvals and Filings with the Registrar of Companies in Hong Kong, the SEHK, the SFC and the CSRC;
10.1.3 making available on display on the websites of the SEHK at www.hkexnews.hk and the Company at www.fls123.com, the documents referred to in the section of the Hong Kong Prospectus headed “Appendix VII - Documents Delivered to the Registrar of Companies and Available on Display” for the period stated therein;
10.1.4 complying with the Listing Rules in relation to supplemental listing documents that may have to be issued in respect of the Global Offering and further agrees not to make, issue or publish any statement, announcement or listing document (as defined in the Listing Rules) in relation to the Global Offering without the prior written consent of the Sole Sponsor and the Overall Coordinator (for itself and on behalf of the Hong Kong Underwriters);
10.1.5 furnishing to the Sole Sponsor and the Overall Coordinator (for itself and on behalf of the Hong Kong Underwriters), such additional copy(ies) of the amendment or supplement to the Hong Kong Prospectus, if any, signed by an authorized officer of the Company, as the Sole Sponsor and the Overall Coordinator may reasonably request from time to time;
10.1.6 using its best endeavours to procure that none of the Directors or their respective associates (as defined in the Listing Rules) will himself/herself or themselves (or through a company controlled by him/her or them), apply to purchase Hong Kong Offer Shares either in his/her or their own names or through nominees, unless permitted to do so under the Listing Rules and having obtained confirmation to that effect;
10.1.7 using its best endeavours to procure that none of the Company, any other member of the Group, the Warranting Shareholders and/or any of their respective substantial shareholders, directors, supervisors, officers, employees, affiliates and/or agents, shall (whether directly or indirectly, formally or informally, in writing or verbally) provide any material information, including forward looking information (whether qualitative or quantitative) concerning the Company or any member of the Group that is not, or is not reasonably expected to be, included in each of the Hong Kong Prospectus and the Preliminary Offering Circular or publicly available, to any research analyst at any time up to and including the fortieth day immediately following the Price Determination Date;
10.1.8 without prejudice to Clause 10.1.6, using its best endeavours to procure that no connected person (as defined in the Listing Rules) of the Company, and that the relevant connected person to procure that none of its associates, will itself (or through a company controlled by it), apply to purchase Hong Kong Offer Shares either in its own name or through nominees, unless permitted to do so under the Listing Rules and having obtained confirmation to that effect, and if the Company shall become aware of any application or indication of interest for Hong Kong Offer Shares by any connected person, controlled company or nominee, it shall forthwith notify the Sole Sponsor and the Overall Coordinator (for itself and on behalf of the Hong Kong Underwriters);
10.1.9 using or procuring the use of all of the net proceeds received by it pursuant to the Global Offering strictly in the manner specified in the section of the Hong Kong Prospectus headed “Future Plans and Use of Proceeds” (as amended from time to time subject to compliance with all applicable Laws and regulations, including the Listing Rules) and will not, directly or indirectly, use such proceeds, or lend, contribute or otherwise make available such proceeds to any member of the Group or other person or entity, for the purpose of financing any activities or business of or with any person or entity, or of, with or in any country or territory, that is subject to any sanctions Laws, or in any other manner that will result in a violation by any individual or entity (including, without limitation, by any of the Sole Sponsor, the Overall Coordinator, the Sole Global Coordinator, the Joint Bookrunners, the Joint Lead Managers, the CMIs and the Hong Kong Underwriters) of any sanctions Laws;
10.1.10 following the Global Offering, ensuring that it has sufficient foreign currency to meet payment of any dividends which may be declared in respect of the Shares;
10.1.11 prior to publishing any press release in connection with the Global Offering, submitting drafts of such press release to the Sole Sponsor and the Overall Coordinator (for itself and on behalf of the Hong Kong Underwriters) for their review; and
10.1.12 ensuring that no preferential treatment has been, nor will be, given to any placee and its close associate(s) (as defined in the Listing Rules) by virtue of its relationship with the Company and/or its connected persons in any allocation in the placing tranche (other than the guaranteed allocation of certain Offer Shares to the Cornerstone Investor as set out in the Hong Kong Prospectus pursuant to the Cornerstone Agreement);
10.1.13 from the date of this Agreement until 5:00 p.m. on the date which is the thirtieth Business Day after the last day for lodging applications under the Hong Kong Public Offering, not (i) declaring, paying or otherwise making any dividend or distribution of any kind on its share capital nor (ii) changing or altering its capital structure (including but not limited to alteration to the nominal value of the Shares whether as a result of consolidation, sub-division or otherwise);
10.2 Information: provide to the Sole Sponsor, the Overall Coordinator, the Sole Global Coordinator, the Joint Bookrunners, the Joint Lead Managers, the CMIs and the Hong Kong Underwriters all such information known to the Company or which on due and careful enquiry ought to be known to the Company and whether relating to the Group or the Company or otherwise as may be reasonably required by the Sole Sponsor or the Overall Coordinator (for itself and on behalf of the Hong Kong Underwriters) in connection with and the Global Offering for the purposes of complying with any requirements of applicable Laws (including, without limitation and for the avoidance of doubt, the requirements of the SEHK, the SFC, the CSRC or of any other relevant Authority);
10.3 Receiving Banks, Nominee and H Share Registrar and HK eIPO White Form Service Provider: procure that each of the Receiving Banks, the Nominee, the H Share Registrar and the HK eIPO White Form Service Provider shall comply in all respects with the terms of their respective appointments under the terms of the Receiving Banks Agreement, the Registrar Agreement and any agreement between the Company and the HK eIPO White Form Service Provider, and do all such acts and things as may be required to be done by it in connection with the Global Offering and the transactions contemplated herein;
10.4 Restrictive covenants: not, and procure that no other member of the Group will:
10.4.1 at any time after the date of this Agreement up to and including the date on which all of the Conditions are fulfilled or waived in accordance with this Agreement, do or omit to do anything which causes or can reasonably be expected to cause any of the Warranties to be untrue, inaccurate or misleading in any respect;
10.4.2 on or prior to the Listing Date or the date on which the Over-allotment Option (or any part thereof) is exercised (if applicable), enter into any commitment or arrangement which in the reasonable opinion of the Sole Sponsor or the Overall Coordinator has or will or may result in a Material Adverse Change or have an adverse effect on the Global Offering;
10.4.3 on or prior to the Listing Date or the date on which the Over-allotment Option (or any part thereof) is exercised (if applicable), take any steps which, in the reasonable opinion of the Sole Sponsor or the Overall Coordinator, are or will or may be materially inconsistent with any statement or expression, whether of fact, policy, expectation or intention, in the Hong Kong Prospectus;
10.4.4 on or prior to the Listing Date, amend any of the terms of the appointments of the H Share Registrar, the Receiving Banks, the Nominee and the HK eIPO White Form Service Provider without the prior written consent of the Sole Sponsor and the Overall Coordinator;
10.4.5 at any time after the date of this Agreement up to and including the Listing Date or the date on which the Over-allotment Option is last exercised, whichever is later, amend or agree to amend any constitutional document of the Company or any other member of the Group; and
10.4.6 without the prior written approval of the Sole Sponsor and the Overall Coordinator, issue, publish, distribute or otherwise make available directly or indirectly to the public any document (including any prospectus), material or information in connection with the Global Offering, or make any amendment to any of the Offering Documents, the Hong Kong Information Pack, or any amendment or supplement thereto, or any written materials agreed between the Company, the Overall Coordinator (for itself and on behalf of the Underwriters) and the Sole Sponsor to be made available during any selective marketing of the International Offer Shares or as otherwise provided pursuant to the provisions of this Agreement;
10.5 Maintaining listing: use its best endeavours to maintain a listing for and will refrain from taking any action that could jeopardise the listing status of, the H Shares on the SEHK, and comply with the Listing Rules and the CSRC Rules and all requirements of the SEHK, the SFC and the CSRC, for at least one year after all of the Conditions have been fulfilled (or waived) except following a withdrawal of such listing which has been approved by the relevant shareholders of the Company in accordance with the Listing Rules or following an offer (within the meaning of the Takeovers Code) for the Company becoming unconditional;
10.6 Legal and regulatory compliance: comply, and procure each other Group Company (including its and their subsidiaries) and any party acting on its or their behalf to comply, with the Articles of Association and the relevant company’s constitutional documents, as applicable, and all applicable Laws (including the rules, regulations, codes and requirements of the SEHK, the SFC, the CSRC and any other Authority, the Listing Rules, the Securities and Futures Ordinance, the Takeovers Code and the CSRC Rules) with respect to, among others, the Global Offering, including, without limitation:
10.6.1 conducting the Group’s business and affairs in compliance with all applicable Laws (including the rules, regulations and requirements of the SEHK, the SFC, the CSRC and any other Authority, the Listing Rules, the Securities and Futures Ordinance, the Takeovers Code and the CSRC Rules);
10.6.2 delivering to the SEHK as soon as practicable and in any event before the commencing of dealings in the H Shares on the SEHK the declaration to be signed by a Director and one of the joint company secretaries of the Company in the form set out in Appendix 5, Form F of the Listing Rules;
10.6.3 procuring that the audited consolidated financial statements of the Company for the financial year ending December 31, 2023 will be prepared on a basis consistent in all material respects with the accounting policies adopted for the purposes of the financial statements contained in the report of the Reporting Accountants set out in Appendix I to the Hong Kong Prospectus;
10.6.4 complying with the Listing Rules, Part XIVA of the Securities and Futures Ordinance, the CSRC Filing Rules or other requirements in connection with the announcement and dissemination to the public any information required
by the SEHK, the SFC, the CSRC and any other Authority to be announced and disseminated to the public;
10.6.5 for so long as the H Shares are listed on the SEHK (i) filing with the SEHK, the SFC, the CSRC and any other Authority in Hong Kong and any relevant jurisdiction or (ii) furnishing to its shareholders, such reports, documents, agreements and other information (including without limitation, its annual and interim reports) which may from time to time be required by applicable Laws to be so filed or furnished because the H Shares are listed on the SEHK;
10.6.6 complying in all material respects with all applicable Laws (including, without limitation, the CSRC Archive Rules) in connection with (A) the establishment and maintenance of adequate and effective internal control measures and internal systems for maintenance of data protection, confidentiality and archive administration; (B) the relevant requirements and approval and filing procedures in connection with its handling, disclosure, transfer and retention of transfer of state secrets and working secrets of government agencies or any other documents or materials that would otherwise be detrimental to national securities or public interest (the "Relevant Information"); and (C) maintenance of confidentiality of any Relevant Information;
10.6.7 where there is any material information that shall be reported to the CSRC pursuant to the applicable Laws (including, without limitation, the CSRC Rules), promptly notifying the CSRC or the relevant PRC Authority and providing it with such material information in accordance with the applicable Laws, and promptly notifying the Sole Sponsor and the Overall Coordinator (for itself and on behalf of the Hong Kong Underwriters) of such material information to the extent permitted by the applicable Laws;
10.6.8 providing to the Sole Sponsor and the Overall Coordinator (for itself and on behalf of the Hong Kong Underwriters) any such other resolutions, consents, authorities, documents, opinions and certificates (other than and in addition to those required to be delivered by the Company to the Overall Coordinator as part of the Conditions Precedent Documents) which are relevant in the context of the Global Offering owing to circumstances arising or events occurring after the date of this Agreement but before 8:00 a.m. on the Listing Date and as the Sole Sponsor and/or the Overall Coordinator may reasonably require;
10.6.9 at all times adopting and upholding a securities dealing code no less exacting than the “Model Code for Securities Transactions by Directors of Listed Issuers” set out in the Listing Rules and procuring that the Directors uphold, comply and act in accordance with the provisions of the same;
10.6.10 complying with all the undertakings and commitments made by it or the Directors in the Hong Kong Prospectus; and
10.6.11 complying with the provisions of Chapters 13, 14 and 14A of, and Appendix 14 to, the Listing Rules, the Guidelines on Disclosure of Inside Information
issued by SFC effective on January 1, 2013 and the provisions of the Takeovers Code; and
10.6.12 paying all Tax, duty, levy, regulatory fee or other government charge or expense which may be payable by the Company in Hong Kong, the PRC or elsewhere, whether pursuant to the requirement of any Law, in connection with the creation, allotment and issue of the Hong Kong Offer Shares, the Hong Kong Public Offering, the execution and delivery of, or the performance of any of the provisions under this Agreement;
10.7 Internal controls: (A) ensure that any issues identified and as disclosed in any internal control report prepared by the Internal Controls Consultant have been, are being or will promptly be rectified or improved to a sufficient standard or level for the operation and maintenance of efficient systems of internal accounting and financial reporting controls and disclosure and corporate governance controls and procedures that are effective to perform the functions for which they were established and to allow compliance by the Company and the Board with all applicable Laws, and, without prejudice to the generality of the foregoing, to such standard or level recommended or suggested by the Internal Controls Consultant in its Internal Controls Reports; and complete all remediation actions in respect of each of the deficiencies and issues identified in the internal control report in accordance with the recommendations and deadlines set out in the Internal Controls Reports and do all such other acts and things as may be reasonably required by the Sole Sponsor and/or the Overall Coordinator to remediate any of such deficiencies and issues; and (B) complying in all material respects with all applicable Laws (including, without limitation, the CSRC Archive Rules) in connection with (i) the establishment and maintenance of adequate and effective internal control measures and internal systems for maintenance of data protection, confidentiality and archive administration; (ii) the relevant requirements and approval and filing procedures in connection with its handling, disclosure, transfer and retention of transfer of state secrets and working secrets of government agencies or any other documents or materials that would otherwise be detrimental to national securities or public interest (the "Relevant Information"); and (C) maintenance of confidentiality of any Relevant Information;
10.8 Significant changes: if, at any time up to or on the date falling twelve months after the Listing Date, there is a significant change which affects or is capable of affecting any information contained in any of the Offering Documents or a significant new matter arises, the inclusion of information in respect of which would have been required in any of the Offering Documents had it arisen before any of them was issued, and, in connection therewith, further:
10.8.1 promptly provide full particulars thereof to the Sole Sponsor and the Overall Coordinator;
10.8.2 inform the SEHK and the CSRC of such change or matter if so required by the Sole Sponsor or the Overall Coordinator;
10.8.3 at its expense, promptly prepare documentation containing details of such change or matter if so required by the SEHK, the CSRC, the Sole Sponsor or the Overall Coordinator and in a form approved by the Sole Sponsor and the Overall Coordinator, deliver such documentation through the Sole Sponsor to the SEHK and/or the CSRC for approval/filing and publish such documentation in such manner as the SEHK, the CSRC or the Sole Sponsor or the Overall Coordinator may require;
10.8.4 at its expense, make all necessary announcements to the SEHK and the press to avoid a false market being created in the Offer Shares, and
10.8.5 not issue, publish, distribute or make available publicly any announcement, circular, document or other communication relating to any such change or matter without the prior written consent of the Sole Sponsor and the Overall Coordinator,
and for the purposes of this Clause, “significant” means significant for the purpose of making an informed assessment of the matters mentioned in Rule 11.07 of the Listing Rules;
10.9 US Aspects: ensure that none of the Company, its “affiliates” (within the meaning of Rule 501(b) under the Securities Act) or any person acting on behalf of any of them (other than the Hong Kong Underwriters and the International Underwriters) (A) has made or will make offers or sales of any security, or solicited or will solicit offers to buy, or otherwise negotiated or will negotiate in respect of, any security, which could be integrated with the sale of the Offer Shares in a manner under circumstances that would require registration of the Offer Shares under the Securities Act, or (B) has offered or sold or will offer or sell the Offer Shares by means of (i) any “general solicitation” or “general advertising” within the meaning of Rule 502(c) under the Securities Act or any other conduct involving a public offering within the meaning of Section 4(a)(2) of the Securities Act or (ii) any “directed selling efforts” within the meaning or Rule 902 under the Securities Act; and
10.10 Compliance Advice: appoint and maintain the appointment of such compliance adviser and obtain advice in relation to the Company’s compliance with the Listing Rules and all other applicable Laws, rules and regulations in such manner and for such period as set out in Rules 3A.19 and 3A.20 of the Listing Rules; and
10.11 General: without prejudice to the foregoing obligations, do all such other acts and things as may be reasonably required to be done by it to carry into effect the Global Offering in accordance with the terms thereof.
The undertakings in this Clause 10 shall remain in full force and effect notwithstanding the completion of the Global Offering and the matters and arrangements referred to or contemplated in this Agreement.
11 TERMINATION
11.1 Termination events: The Overall Coordinator (for itself and on behalf of the Hong Kong Underwriters) and the Sole Sponsor shall be entitled by notice (in writing) to the Company to terminate this Agreement with immediate effect if prior to 8:00 a.m. on the Listing Date:
11.1.1 there develops, occurs, exists or comes into effect:
(a) any new Law or any change or development involving or likely to result in a prospective change in any existing Law or in the interpretation or application thereof by any court or other competent authority in or affecting Hong Kong, the PRC, the United States, the United Kingdom, the European Union (or any member thereof), Australia or any other jurisdiction in which the Group operates (collectively, the “Relevant Jurisdictions”, and each, a “Relevant Jurisdiction”); or
(b) any change, or any development involving or likely to result in a prospective change or development (whether or not permanent) in any local, national, regional or international financial, political, military, industrial, legal, fiscal, economic, regulatory, credit, market or currency matters or conditions or exchange management or any monetary or trading settlement system (including, but not limited to, a change in the stock and bond markets, money and foreign exchange markets, the interbank markets and credit markets or a change in the system under which the value of the Hong Kong dollar is linked to the
U.S. dollar or revaluation of the Hong Kong dollar or Renminbi against any foreign currencies or a change in any other currency exchange rates) in or affecting any of the Relevant Jurisdictions; or
(c) any moratorium, suspension or restriction (including, without limitation, any imposition of or requirement for any minimum or maximum price limit or price range) in or on trading in securities generally on the SEHK, the London Stock Exchange, the Shanghai Stock Exchange, the Shenzhen Stock Exchange, the New York Stock Exchange, or in the NASDAQ Global Market; or
(d) any general moratorium on commercial banking activities in Hong Kong (imposed by the Financial Secretary or the Hong Kong Monetary Authority or other competent government authority), New York (imposed at Federal or New York State level or other competent government authority), London or any other Relevant Jurisdictions (declared by the relevant authorities) or any disruption in commercial banking or foreign exchange trading or securities settlement or clearance services, procedures or matters in or affecting any of the Relevant Jurisdiction; or
(e) any change or development involving a prospective change in or affecting Taxation or exchange management, currency exchange rates or foreign investment regulations (including, without limitation, a change in the system under which the value of the Hong Kong currency is linked to the U.S. dollar, or a material devaluation of the
U.S. dollar, Hong Kong dollar or the Renminbi against any foreign currencies), or the implementation of any exchange management, in any of the Relevant Jurisdictions or affecting an investment in the Offer Shares; or
(f) any imposition of sanctions or economic sanctions, or the withdrawal of trading privileges, in whatever form, directly or indirectly, by, or for the United Nations or any Relevant Jurisdiction on the Company or any Group Company; or
(g) any valid demand by any creditor for repayment or payment of any indebtedness of any member of the Group or in respect of which any member of the Group is liable prior to its stated maturity; or
(h) any event or circumstance, or series of events or circumstances (either national or international), in the nature of force majeure in or affecting directly or indirectly any of the Relevant Jurisdictions including, without limiting the generality thereof, any act of God, act of government, declaration of a national or international emergency or war, act of war, outbreak or escalation of hostilities (whether or not
war is declared), calamity, economic sanction, strike, labour dispute, crisis, riot, civil commotion, public disorder, labour dispute, epidemic (including, without limitation, Severe Acute Respiratory Syndrome (SARS), swine or avian flu, Influenza A (H5N1), H1N1, swine or avian influenza (H7N9), COVID-19 or such related/mutated forms), pandemic, outbreak of infectious disease, lockdown, lockout or severe or extended interruption in transport, earthquake, act of terrorism (whether or not responsibility has been claimed), flooding, explosion, volcanic eruption, ice-storm, tsunami or fire; or
(i) the issue or requirement to issue by the Company of any supplement or amendment to the Hong Kong Prospectus, Application Form, or Final Offering Circular (or to any other document used in connection with the contemplated offer, subscription and sale of the Offer Shares) or the CSRC Filings pursuant to the Companies (WUMP) Ordinance, the Listing Rules or the CSRC Rules or any requirement or request of the SEHK, the SFC and/or the CSRC without the prior written consent of the Sole Sponsor and the Overall Coordinator; or
(j) that any matter has arisen or has been discovered which would, had it arisen or been discovered immediately before the date of the Hong Kong Prospectus, constitute a material misstatement in any of the Hong Kong Public Offering Documents, the Hong Kong Information Pack or the CSRC Filings; or
(k) any change, development or event involving a prospective change in, or actual materialisation of, any of the risks set out in the section headed “Risk Factors” in the Hong Kong Prospectus; or
(l) an order or a petition is presented for the winding up or liquidation of any member of the Group or any member of the Group makes any composition or arrangement with its creditors or enters into a scheme of arrangement or any resolution is passed for the winding-up of any member of the Group or a provisional liquidator, receiver or manager is appointed over all or part of the assets or undertaking of any member of the Group or anything analogous thereto occurs in respect of any member of the Group; or
(m) any contravention or breach by any member of the Group or any Director of the Listing Rules, the Companies (WUMP) Ordinance, the Companies Ordinance, the CSRC Rules, the PRC Company Law or other applicable Laws; or
(n) a prohibition on the Company for whatever reason from offering, allotting, issuing or selling any of the Offer Shares (including any additional H Shares that may be issued pursuant to the exercise of the Over-allotment Option) pursuant to the terms of the Global Offering; or
(o) any non-compliance of the Hong Kong Prospectus (or any other document used in connection with the contemplated offer, subscription and sale of the Offer Shares) or any aspect of the Global Offering with the Listing Rules, the Companies (WUMP) Ordinance, the CSRC Rules or any other applicable Laws; or
(p) any litigation, claim or other legal or regulatory proceeding being threatened or instigated against (i) any member of the Group; (ii) any of the Controlling Shareholders; or (iii) any Director; or
(q) any Authority in any Relevant Jurisdiction commencing any investigation or other action, or announcing an intention to investigate or take other action, against any member of the Group or any Director or any of the Controlling Shareholders; or
(r) any of the chairman of the Board, the chief executive officer of the Company, the general manager of the Company or any executive Director vacating his or her office;
(s) any material loss or damage sustained by any member of the Group (howsoever caused and whether or not subject of any insurance or claim against any person); or
(t) any of the chairman of the Board, the chief executive officer of the Company, the general manager of the Company or any Director being charged with an indictable offence or prohibited by operation of law or otherwise disqualified from taking part in the management of a company,
which, individually or in the aggregate, in the sole and absolute opinion of the Overall Coordinator (for itself and on behalf of the Hong Kong Underwriters) and the Sole Sponsor:
(A) has or will or may result in any Material Adverse Change; or
(B) has or will or may have a material adverse effect on the success or marketability of the Global Offering or the level of applications under the Hong Kong Public Offering or the level of interest under the International Offering; or
(C) makes or will or may make it inadvisable or inexpedient or impracticable for any part of the Hong Kong Public Offering or the International Offering to proceed as envisaged or to market the Global Offering or to deliver the Offer Shares on the terms and in the manner as contemplated by the Hong Kong Prospectus, the Application Form, the Formal Notice or the Final Offering Circular; or
(D) has or will or may have the effect of (i) making any part of this Agreement (including underwriting) incapable or impracticable of performance in accordance with its terms or (ii) preventing or delaying the processing of applications and/or payments pursuant to the Global Offering or pursuant to the underwriting thereof; or
11.1.2 there has come to the notice of the Sole Sponsor or the Overall Coordinator (for itself and on behalf of the Hong Kong Underwriters):
(a) that any statement contained in any of the Offering Documents (including the Hong Kong Public Offering Documents), the Hong Kong Information Pack, the CSRC Filings, the Operative Documents, the Disclosure Package, the Final Offering Circular and/or in any notices, announcements, advertisements, communications, marketing
or other documents issued or used by or on behalf of the Company in connection with the Hong Kong Public Offering (including any supplement or amendment thereto) (collectively, the “Offering Related Documents”) (but excluding information relating to the Underwriters) was, when it was issued, or has become, untrue, incorrect or inaccurate in any material respect or misleading, or that any forecast, estimate, expression of opinion, intention or expectation expressed or contained in any of the Offering Related Documents is not fair and honest and not made on reasonable grounds or, where appropriate, not based on reasonable assumptions with reference to the facts and circumstances then subsisting; or
(b) that any matter has arisen or has been discovered which would or might, had it arisen or been discovered immediately before the date of the Hong Kong Prospectus, constitute a material omission from, or misstatement in, any of the Offering Related Documents; or
(c) any material contravention or breach by any member of the Group or any Director of any applicable Laws, the Listing Rules or the CSRC Rules; or
(d) that there is a breach of, or any matter, event or circumstance rendering or which may render, any of the representations, warranties, agreements and undertakings given by any of the Warrantors in this Agreement or the International Underwriting Agreement, as applicable, untrue, incorrect, incomplete in any respect or misleading; or
(e) that there is a breach of any provision of, or any obligation imposed upon any party to, this Agreement or the International Underwriting Agreement (other than obligations imposed upon any of the Overall Coordinator, the Sole Global Coordinator, the Joint Bookrunners, the Joint Lead Managers, the Sole Sponsor, the CMIs, the Hong Kong Underwriters or the International Underwriters); or
(f) there is an event, act or omission which gives or is likely to give rise to any liability of any of the Company or any of the other Warrantors pursuant to the indemnities given by any of them under this Agreement (including, without limitation, Clause 12) or the International Underwriting Agreement, as applicable; or
(g) that there is any Material Adverse Change; or
(h) that a significant portion of the orders in the bookbuilding process at the time when the International Underwriting Agreement is entered into have been withdrawn, terminated, cancelled or otherwise not fulfilled; or
(i) that the investment commitments by any cornerstone investor after signing of the Cornerstone Agreement with such cornerstone investor(s) have been withdrawn, terminated, cancelled or otherwise not fulfilled; or
(j) any of the experts specified in the Hong Kong Prospectus or other person whose consent is required for the issue of the Hong Kong
Prospectus or any of the Hong Kong Public Offering Documents with the inclusion of its reports, letters and/or legal opinions (as the case may be) and references to its name included in the form and context in which it respectively appears has withdrawn its consent to being named in, or to the issue of, the Hong Kong Prospectus or any of the Hong Kong Public Offering Documents; or
(k) that the approval by the Listing Committee of the listing of, and permission to deal in, the H Shares in issue and to be issued pursuant to the Global Offering (including any additional H Shares that may be issued pursuant to the exercise of the Over-allotment Option) is refused, not granted or qualified (other than by customary conditions), on or before the Listing Date, or if granted, the approval is subsequently withdrawn, cancelled, qualified (other than by customary conditions), revoked or withheld; or
(l) that the Company withdraws the Hong Kong Prospectus, the Application Form and/or any other document issued or used in connection with the Global Offering, or the Global Offering.
11.2 Effect of termination: Upon the termination of this Agreement pursuant to Clause
11.1 or Clause 2.4:
11.2.1 subject to Clause 11.2.2 below, each of the parties hereto shall cease to have any rights or obligations under this Agreement except that Clauses 6.2, 6.3, 6.4 and 12 to 17 and any rights or obligations that may have accrued under this Agreement prior to such termination shall survive such termination;
11.2.2 the Company shall refund as soon as practicable all payments made by the Hong Kong Underwriters or any of them pursuant to Clause 4.9 and/or by the Overall Coordinator pursuant to Clause 4.10 and/or by applicants under the Hong Kong Public Offering (in the latter case, the Company shall procure that the H Share Registrar and the Nominee despatch refund cheques to all applicants under the Hong Kong Public Offering in accordance with the Registrar Agreement and the Receiving Banks Agreement); and
11.2.3 the Company shall pay forthwith to the Sole Sponsor, the Overall Coordinator, the Sole Global Coordinator, the Joint Bookrunners, the Joint Lead Managers, the CMIs and the Hong Kong Underwriters the costs, expenses, fees, charges and Taxation set out in Clause 6.3 and the Sole Sponsor, the Sole Global Coordinator, the Joint Bookrunners, the Joint Lead Managers and the Hong Kong Underwriters may, in accordance with the provisions of the Receiving Banks Agreement, instruct the Nominee to make such (or any part of such) payments.
12 INDEMNITY
12.1 Indemnity: Each of the Warrantors (collectively, the “Indemnifying Parties” and individually, an “Indemnifying Party”) jointly and severally undertakes to the Sole Sponsor, the Overall Coordinator, the Sole Global Coordinator, the Joint Bookrunners, the Joint Lead Managers, the CMIs and the Hong Kong Underwriters and each of them (for itself, respectively, and on trust for their respective Indemnified Parties) to indemnify, defend, hold harmless and keep fully indemnified (on an after-Taxation basis), on demand, each such Indemnified Party against all losses, liabilities, damages, payments, costs, charges, expenses, claims (and any action, writ or proceeding
(including any investigation or inquiry by or before any Authority)) and Taxation (collectively, “Losses” and individually, a “Loss”) which, jointly or severally, any such Indemnified Party may suffer or incur, and against any and all actions, writs, suits and proceedings (including, without limitation, any investigation or inquiry by or before any Authority) and claims (whether or not any such claim involves or results in any action, suit or proceeding), demands, judgment and awards (collectively, “Proceedings” and individually, a “Proceeding”), which may be instituted, made or brought or threatened to be instituted, made or brought against, or otherwise involve, any Indemnified Party, jointly or severally, from time to time (including, without limitation, all payments, costs (including, without limitation, legal costs and disbursements), charges, fees and expenses arising out of or in connection with the investigation, dispute, response to, defence or settlement or compromise of, or the enforcement of any settlement or compromise or judgment obtained with respect to, any such Loss or any such Proceeding), and, in each case, which, directly or indirectly, arise out of or are in connection with:
12.1.2 any of the Related Public Information containing any untrue or alleged untrue statement of a fact, or omitting or being alleged to have omitted to state a fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, or not containing or being alleged not to contain all the information as investors and their professional advisers would reasonably require, and reasonably expect to find therein, for the purpose of making an informed assessment of the assets, liabilities, financial position, profits and losses and prospects of the Company and the rights attaching to the Offer Shares, or any information material in the context of the Global Offering whether required by Law or otherwise; or
12.1.4 the offer, allotment, issue, sale or delivery of the Offer Shares and/or the execution, delivery or performance of this Agreement by the Warrantors; or
12.1.5 any breach or alleged breach on the part of any of the Warrantors of any of the provisions of this Agreement or the Articles of Association or the International Underwriting Agreement; or
12.1.6 any of the Warranties being untrue, inaccurate or misleading in any respect or having been breached in any respect or being alleged to be untrue, inaccurate or misleading in any respect or alleged to have been breached in any respect; or
12.1.7 the execution, delivery and performance by the Sole Sponsor, the Overall Coordinator, the Sole Global Coordinator, the Joint Bookrunners, the Joint Lead Managers, the CMIs, the Hong Kong Underwriters or any of them of their or its obligations and roles under this Agreement or the Offering Documents or otherwise in connection with the Global Offering; or
12.1.8 any act or omission of the Company or any other member of the Group or any of the Warranting Shareholders in relation to the Global Offering; or
12.1.9 the Global Offering failing or being alleged to fail to comply with the requirements of the Listing Rules, the CSRC Rules or any Law of any applicable jurisdiction, or any condition or term of any Approvals and Filings in connection with the Global Offering; or
12.1.10 any failure or alleged failure by the Company or any of the Directors or any of the Warranting Shareholders to comply with their respective obligations under the Listing Rules, the CSRC Rules, the Articles of Association or applicable Laws; or
12.1.11 any breach or alleged breach by the Company or any member of the Group or any of the Warranting Shareholders of applicable Laws in any material respect; or
12.1.12 any Proceeding by or before any Authority having commenced or been threatened against the Company, any other Group Company, any other Warrantor or any settlement of any such Proceeding (whether commenced or threatened), or
12.1.13 any breach by any of the Warrantors of the terms and conditions of the Global Offering;
12.1.14 any new interpretation of Laws or any change or development involving a change in the interpretation of Laws that affects or is likely to adversely affect the existing operation of any member of the Group; or
12.1.15 any other matter arising in connection with the Global Offering,
provided that the indemnity shall not apply in connection with the matters set out in Clause 12.1.7 in respect of any Indemnified Party if any Loss suffered or incurred by such Indemnified Party is finally judicially determined by a court of competent authority or a properly constituted arbitral tribunal to have arisen solely out of gross negligence, wilful default or fraud on the part of such Indemnified Party.
The non-application of the indemnity provided for in this Clause 12.1 in respect of any Indemnified Party shall not affect the application of such indemnity in respect of any other Indemnified Parties.
12.2 No claims against Indemnified Parties: No Proceeding shall be brought against any Indemnified Party by, and no Indemnified Party shall be liable to, any Indemnifying
Party to recover any Loss which such Indemnifying Party may suffer or incur by reason of or in any way arising out of the carrying out by any of the Indemnified Parties of any act in connection with the transactions contemplated herein or in the Hong Kong Public Offering Documents, the performance by the Sole Sponsor, the Overall Coordinator, the Sole Global Coordinator, the Joint Bookrunners, the Joint Lead Managers, the CMIs or the Hong Kong Underwriters of their obligations hereunder or otherwise in connection with the offer, allotment, issue, sale or delivery of the Hong Kong Offer Shares or the preparation or despatch of the Hong Kong Public Offering Documents, provided that the foregoing shall not, except in relation to the matters as provided in Clause 3.12, exclude any liability of any Indemnified Party for such Loss as suffered by the relevant Indemnifying Party which has been finally judicially determined by a court of competent authority or a properly constituted arbitral tribunal to have arisen solely out of gross negligence, wilful default or fraud on the part of the relevant Indemnified Party.
12.3 Conduct of claims: If any Proceeding is instituted involving any Indemnified Party in respect of which the indemnity provided for in this Clause 12 may apply, such Indemnified Party shall, subject to any restrictions imposed by any Law or obligation of confidentiality, promptly notify the Indemnifying Party in writing of the institution of such Proceeding, provided, however, that the omission to so notify the Indemnifying Party shall not relieve such Indemnifying Party from any liability which it may have to any Indemnified Party under this Clause 12 or otherwise. The Indemnifying Party may participate at its expense in the defence of such Proceeding including appointing counsel at its expense to act for it in such Proceeding; provided, however, that counsel to the Indemnifying Party shall not (except with the consent of any Indemnified Parties) also be counsel to the Indemnified Party. Unless the Overall Coordinator (for itself and on behalf of any Indemnified Parties) and the Sole Sponsor consent to counsel to the Indemnifying Party acting as counsel to such Indemnified Parties in such Proceeding, the Overall Coordinator (for itself and on behalf of such Indemnified Parties) shall have the right to appoint their own separate counsel (in addition to local counsel) in such Proceeding. The fees and expenses of separate counsel (in addition to local counsel) to any Indemnified Parties shall be borne by the Indemnifying Party and paid as incurred.
12.4 Settlement of claims: No Indemnifying Party shall, without the prior written consent of an Indemnified Party, effect, make, propose or offer any settlement or compromise of, or consent to the entry of any judgment with respect to, any pending or threatened Proceeding in respect of which any Indemnified Party is or could be or could have been a party and indemnity could be or could have been sought hereunder by such Indemnified Party, unless such settlement, compromise or consent judgment includes an unconditional release of such Indemnified Party, in form and substance reasonably satisfactory to such Indemnified Party, from all liability on claims that are the subject matter of such Proceeding and does not include any statement as to or any admission of fault, culpability or a failure to act by or on behalf of such Indemnified Party. Any settlement or compromise by any Indemnified Party, or any consent by any Indemnified Party to the entry of any judgement, in relation to any Proceeding shall be without prejudice to, and without (other than any obligations imposed on it by law) any accompanying obligation or duty to mitigate the same in relation to, any Loss it may recover from, or any Proceeding it may take against any of the Indemnifying Parties under this Agreement. An Indemnifying Party shall be liable for any settlement or compromise by any Indemnified Party of, or any judgment consented to by any Indemnified Party with respect to, any pending or threatened Proceeding, whether effected with or without the consent of such Indemnifying Party, and agrees to indemnify and hold harmless the Indemnified Party from and against any loss or liability by reason of such settlement, or compromise or consent judgement. The rights of the Indemnified Parties herein are in addition to any rights that each Indemnified
Party may have at law or otherwise and the obligations of the Indemnifying Parties herein shall be in addition to any liability which the Indemnifying Parties may otherwise have.
12.5 Arrangements with advisers: If an Indemnifying Party enters into any agreement or arrangement with any adviser for the purpose of or in connection with the Global Offering, the terms of which provide that the liability of the adviser to the Indemnifying Party or any other person is excluded or limited in any manner, and any of the Indemnified Parties may have joint and/or several liability with such adviser to the Indemnifying Party or to any other person arising out of the performance of its duties under this Agreement, the Indemnifying Party shall:
12.5.1 not be entitled to recover any amount from any Indemnified Party which, in the absence of such exclusion or limitation, the Indemnifying Party would not have been entitled to recover from such Indemnified Party;
12.5.2 indemnify the Indemnified Parties in respect of any increased liability to any third party which would not have arisen in the absence of such exclusion or limitation; and
12.5.3 take such other action as the Indemnified Parties may require to ensure that the Indemnified Parties are not prejudiced as a consequence of such agreement or arrangement.
12.7 Payment on demand: All amounts subject to indemnity under this Clause 12 shall be paid by an Indemnifying Party as and when they are incurred within 30 calendar days of a written notice demanding payment being given to such Indemnifying Party by or on behalf of the relevant Indemnified Party.
12.8 Payment free from counterclaims/set-offs: All payments payable by an Indemnifying Party under this Agreement (including, without limitation, under this Clause 12) shall be made gross, free of any right of counterclaim or set off and without deduction or withholding of any kind, other than any deduction or withholding required by any Law. If an Indemnifying Party makes a deduction or withholding under this Agreement (including, without limitation, under this Clause 12), the sum due from such Indemnifying Party shall be increased to the extent necessary to ensure that, after the making of any deduction or withholding, the relevant Indemnified Party which is entitled to such payment receives a sum equal to the sum it would have received had no deduction or withholding been made.
12.9 Taxation: If a payment under this Agreement (including, without limitation, under this Clause 12) will be or has been subject to Taxation, the Indemnifying Party shall pay the relevant Indemnified Party on demand the amount (after taking into account any Taxation payable in respect of the amount and treating for these purposes as payable any Taxation that would be payable but for a relief, clearance, deduction or credit) that will ensure that the relevant Indemnified Party receives and retains a net sum equal to the sum it would have received had the payment not been subject to Taxation.
12.10 Full force: The foregoing provisions of this Clause 12 will continue in full force and effect notwithstanding the Global Offering becoming unconditional and completion of the Global Offering and the matters and arrangements referred to or contemplated in this Agreement or the termination of this Agreement (as the case may be).
12.11 No limitations: The provisions of indemnities contained in this Clause 12 are not affected by any other terms (including any limitations) set out in this Agreement.
13 ANNOUNCEMENTS
13.1 Restrictions on announcements: No announcement or public communication concerning this Agreement, any matter contemplated herein or any ancillary matter hereto shall be made or dispatched by the Company or any of the other Warrantors (or by any of their respective directors, supervisors, officers, employees or agents) during the period of six months from the date of this Agreement without the prior written approval of the Sole Sponsor and the Overall Coordinator (for itself and on behalf of the Hong Kong Underwriters) except in the event and to the extent that any such announcement is required by the Listing Rules, applicable Laws or required by any Authority to which such party is subject or submits, wherever situated, including the SEHK, the SFC and the CSRC, whether or not the requirement has the force of law and any such announcement so made by any of the parties shall be made only after the Sole Sponsor and the Overall Coordinator (for itself and on behalf of the Hong Kong Underwriters) have had a reasonable opportunity to review and comment on the final draft and their comments (if any) have been fully considered by the issuers thereof.
13.2 Full force: Subject to Clause 13.1, for the avoidance of doubt, the restriction contained in this Clause 13 shall continue to apply after the completion of the Global Offering and the matters and arrangements referred to or contemplated in this Agreement or, for so long as any of the Sole Sponsor or the Overall Coordinator still remain as sponsor or adviser to the Company, the termination of this Agreement.
14 CONFIDENTIALITY
14.1 Information confidential: Subject to Clause 14.2, each party hereto shall, and shall procure that its affiliates and its and their directors, supervisors, officers and agents will, treat as strictly confidential all information received or obtained as a result of entering into or performing this Agreement which relates to the provisions of this Agreement, the negotiations relating to this Agreement, the matters contemplated under this Agreement or the other parties hereto.
14.2 Exceptions: Any party hereto may disclose, or permit its directors, supervisors, officers and agents to disclose, information which would otherwise be confidential if and to the extent:
14.2.1 required by applicable Laws;
14.2.2 required by any Authority to which such party is subject or submits, wherever situated, including, without limitation, the SEHK and the SFC, whether or not the requirement for disclosure of information has the force of law;
14.2.3 required to vest the full benefit of this Agreement in such party;
14.2.4 disclosed to the professional advisors and auditors of such party under a duty of confidentiality;
14.2.5 the information has come into the public domain through no fault of such party;
14.2.6 required by any of the Sole Sponsor, the Overall Coordinator, the Sole Global Coordinator, the Joint Bookrunners, the Joint Lead Managers, the CMIs, Hong Kong Underwriters or their respective affiliates for the purpose of the Global Offering or necessary in the view of any such party to seek to establish any defense or pursue any claim in any legal, arbitration or regulatory proceeding or investigation in connection with the Global Offering or otherwise to comply with its or their own regulatory obligations; or
provided that, in the cases of Clauses 14.2.3 and 14.2.7, any such information disclosed shall be disclosed only after consultation with the other parties.
14.3 Full force: The foregoing provisions of this Clause 14 will continue in full force and effect notwithstanding the Global Offering becoming unconditional and completion of the Global Offering and the matters and arrangements referred to or contemplated in this Agreement or the termination of this Agreement (as the case may be).
15 NOTICES
15.1 Language: All notices or other communication delivered hereunder shall be in writing except as otherwise provided in this Agreement and shall be in the English language.
15.2 Time of notice: Any such notice or other communication shall be addressed as provided in Clause 15.3 and if so addressed, shall be deemed to have been duly given or made as follows:
15.2.1 if sent by personal delivery, upon delivery at the address of the relevant party;
15.2.2 if sent by post, five (5) Business Days after the date of posting;
15.2.3 if sent by airmail, five (5) Business Days after the date of posting;
15.2.4 if sent by facsimile, when despatched with confirmed receipt as evidenced by the transmission report generated at the end of the transmission of such facsimile by the facsimile machine used for such transmission; and
15.2.5 if sent by email, at the time of transmission.
Any notice received or deemed to be received on a day which is not a Business Day shall be deemed to be received on the next Business Day.
15.3 Details of contact: The relevant address, facsimile number and email of each of the parties hereto for the purpose of this Agreement, subject to Clause 15.4, are as follows:
Party | Address | Fax | Attention | |
Company | No. 999, Yayun Avenue Shiqi Town, Panyu District Guangzhou City, Guangdong Province PRC | N/A | Secretary of the Board | |
中國 | ||||
廣東省廣州市 | ||||
番禺區石碁鎮 | ||||
亞運大道999號 | ||||
Warranting Shareholders | ||||
Guangzhou Daze | No. 999, Yayun Avenue Shiqi Town, Panyu District Guangzhou City, Guangdong Province PRC | N/A | Secretary of the Board | |
中國 | ||||
廣東省廣州市 | ||||
番禺區石碁鎮 | ||||
亞運大道999號 | ||||
Mr. Hou | Room 1102, Unit 1, Building 5 Xinghewan Xingyuan No. 201 Yingbin Road Panyu District Guangzhou City, Guangdong Province PRC 中國 廣東省廣州市番禺區 迎賓路201 號星河灣星苑 5幢1棟1102 室 | N/A | - | |
Party | Address | Fax | Attention | |
Mr. Hou Zebing | Room 1502, Building 3 No. 138 Jinxiu Road Panyu District Guangzhou City, Guangdong Province PRC 中國 廣東省廣州市番禺區 錦繡路138 號 3棟1502室 | N/A | - | |
Sole Sponsor | ||||
HTI Capital | Suites 3001-3006 and 3015-3016, 30/F, One International Finance Centre, 1 Harbour View Street, Central, Hong Kong | (852) 2848 1016 | Project.f @htisec.com | Project F deal team |
Overall Coordinator | ||||
HTI Securities | 28/F, One International Finance Centre, No. 1 Harbour View Street, Central, Hong Kong | (852) 2537 5431 | Project.f @htisec.com | Project F deal team |
If to any of the Hong Kong Underwriters, to the address and fax number of such Hong Kong Underwriter, and for the attention of the person, specified under the name of such Hong Kong Underwriter in Part 2 of Schedule 1.
15.4 Change of contact details: A party may notify the other parties to this Agreement of a change of its relevant address, facsimile number or email for the purposes of Clause 15.3, provided that such notification shall only be effective on:
15.4.1 the date specified in the notification as the date on which the change is to take place; or
15.4.2 if no date is specified or the date specified is less than two Business Days after the date on which notice is given, the date falling two Business Days after notice of any such change has been given.
16 GOVERNING LAW; DISPUTE RESOLUTION; WAIVER OF IMMUNITY
16.1 Governing law: This Agreement shall be governed by and construed in accordance with the Laws of Hong Kong.
16.2 Arbitration: Each party to this Agreement agrees, on behalf of itself and as agent for its respective affiliates, that any dispute, controversy or claim arising out of or relating to this Agreement or its subject matter, existence, negotiation, validity, invalidity, termination or enforceability (including non-contractual disputes or claims, and disputes or claims against each party's affiliates) shall be referred to arbitration and finally settled under the Hong Kong International Arbitration Centre Administered Arbitration Rules (the “Rules”) in force when the Notice of Arbitration is submitted in accordance with the Rules. The seat of arbitration shall be Hong Kong. The number of arbitrators shall be three. Each party shall nominate one arbitrator (together the “nominated arbitrators”) and the third arbitrator shall be nominated by agreement between the nominated arbitrators. The third arbitrator shall serve as chairman of the arbitral tribunal. The arbitration proceedings shall be conducted in English. This arbitration agreement shall be governed by the Laws of Hong Kong. The rights and obligations of the parties to submit disputes to arbitration pursuant to this Clause 16 shall survive the termination of this Agreement or the completion of the Global Offering and the matters and arrangements referred to or contemplated in this Agreement. Any party may bring proceedings in any court of competent jurisdiction for ancillary, interim or interlocutory relief or for award enforcement in relation to any arbitration commenced under this Clause 16.
16.3 Submission to jurisdiction: Each of the parties hereto irrevocably submits to the non- exclusive jurisdiction of the courts of Hong Kong to support and assist any arbitration commented under Clause 16.2, including if necessary the grant of ancillary, interim or interlocutory relief pending the outcome of such arbitration.
16.4 Service of documents: Each of the parties hereto irrevocably agrees that any writ, summons, order, judgment or other notice of legal process shall be sufficiently and effectively served on it if delivered in accordance with Clause 15. Specifically in relation to proceedings in the Hong Kong court, it is agreed that each of the Warrantors may be served in respect of an originating process, at the discretion of the plaintiff/ claimant/ applicant or equivalent as the case may be, by post at the address set out in Clause 15 or by leaving such process at that address marked for the attention of the Warrantor(s).
16.5 Process agent: The Company has established a place of business in Hong Kong at 5/F, Manulife Place, 348 Kwun Tong Road, Kowloon, Hong Kong, and has been registered as a non-Hong Kong company under Part 16 of the Companies Ordinance. Each of the Warrantors has appointed the Company (the “Process Agent”) as the authorized representative of each of them for the acceptance of service of process (which includes service of all and any documents relating to any court proceedings) and any notices to be served on any of them in Hong Kong. Service of process upon the Warrantors (as the case may be) by service upon the Process Agent in its capacity as agent for the service of process for the Warrantors (as the case may be) shall be deemed, for all purposes, to be due and effective service, and shall be deemed completed whether or not forwarded to or received by the Warrantors (as the case may be). If for any reason the Process Agent shall cease to be agent for the service of process for any of the Warrantors, such Warrantor (as the case may be) shall promptly notify the Sole Sponsor and the Overall Coordinator and within 30 days appoint a new agent for the service of
process in Hong Kong acceptable to the Sole Sponsor and the Overall Coordinator and deliver to each of the other parties hereto a copy of the new agent’s acceptance of that appointment as soon as reasonably practicable, failing which the Sole Sponsor and the
Overall Coordinator shall be entitled to appoint such new agent for and on behalf of such Warrantor (as the case may be), and such appointment shall be effective upon the giving of notice of such appointment to such Warrantor (as the case may be). Nothing in this Agreement shall affect the right to serve process in any other manner permitted by Laws. Where pursuant to Clause 16, proceedings are taken against the Company or any of the other Warrantors in the courts of any jurisdiction other than Hong Kong, upon being given notice in writing of such proceedings, the Company or such Warrantor (as the case may be) shall forthwith appoint an agent for the service of process (which includes service of all and any documents relating to such proceedings) in that jurisdiction acceptable to the Sole Sponsor and the Overall Coordinator and deliver to each of the other parties hereto a copy of the agent’s acceptance of that
appointment and shall give notice of such appointment to the other parties hereto within
14 days of such appointment, failing which the Sole Sponsor and the Overall Coordinator shall be entitled to appoint such agent for and on behalf of the Company or such Warrantor (as the case may be), and such appointment shall be effective upon the giving of notice of such appointment to the Company. Nothing in this Agreement shall affect the right to serve process in any other manner permitted by Clause 15 or Laws.
16.6 Waiver of immunity: To the extent that in any proceedings in any jurisdiction (including, without limitation, arbitration proceedings), any of the Warrantors has or can claim for itself or its assets, properties or revenues any immunity (on the grounds of sovereignty or crown status or otherwise) from any action, suit, proceeding or other legal process (including, without limitation, arbitration proceedings), from set-off or counterclaim, from the jurisdiction of any court, from service of process, from attachment to or in aid of execution of any judgment, decision, determination, order or award including, without limitation, any arbitral award, or from other action, suit or proceeding for the giving of any relief or for the enforcement of any judgement, decision, determination, order or award including any arbitral award or to the extent that in any such proceedings there may be attributed to itself or its assets, properties or revenues any such immunity (whether or not claimed), the Company and the Warrantors hereby irrevocably waives and agrees not to plead or claim any such immunity in relation to any such proceedings.
17 GENERAL PROVISIONS
17.1 Time: Save as otherwise expressly provided herein, time shall be of the essence of this Agreement.
17.2 Illegality, invalidity or unenforceability: If, at any time, any provision hereof is or becomes illegal, invalid or unenforceable in any respect under the Laws of any jurisdiction, neither the legality, validity or enforceability in that jurisdiction of any other provisions hereof nor the legality, validity or enforceability of that or any other provision(s) hereof under the Laws of any other jurisdiction shall in any way be affected or impaired thereby.
17.3 Assignment: Each of the Sole Sponsor, the Overall Coordinator, the Sole Global Coordinator, the Joint Bookrunners, the Joint Lead Managers, the CMIs and the Hong