Exhibit 1.1
. American Depositary Shares
China Life Insurance Company Limited
Each representing . H shares,
Par value RMB1.00 per share
Underwriting Agreement
December ____, 2003
China International Capital Corporation Limited
28th Floor, China World Tower 2
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Citigroup Global Markets Inc.
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Credit Suisse First Boston LLC
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Deutsche Bank Securities Inc.
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As U.S. Representatives of the several U.S. Underwriters named in Schedule
I hereto
China International Capital Corporation Limited
28th Floor, China World Tower 2
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Citigroup Global Markets Limited
Citigroup Centre, 33 Canada Square
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Credit Suisse First Boston (Hong Kong) Limited
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Deutsche Bank AG, Hong Kong Branch
55/F, ▇▇▇▇▇▇ Kong Center
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As International Representatives of the several International Underwriters
named in Schedule II hereto
China International Capital Corporation Limited
28th Floor, China World Tower 2
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Citigroup Global Markets Asia Limited
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Credit Suisse First Boston (Hong Kong) Limited
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Deutsche Bank AG, Hong Kong Branch
55/F ▇▇▇▇▇▇ Kong Center
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As Global Coordinators
Ladies and Gentlemen:
China Life Insurance Company Limited (the "Company"), a joint stock company
incorporated under the laws of the People's Republic of China (the "PRC") with
limited liability, proposes to issue and sell to the several Underwriters (as
defined below) an aggregate of . American Depositary Shares, each representing .
H shares, par value RMB 1.00 per share, of the Company (each an "H Share"), and
China Life Insurance (Group) Company (the "Selling Shareholder"), a state-owned
enterprise established in the PRC, proposes to sell to the several Underwriters
an aggregate of .American Depositary Shares, representing . H Shares. The .
American Depositary Shares, representing . H Shares, to be sold by the Company
and the Selling Shareholder are herein called the "Firm ADSs".
It is understood that, on the terms and subject to the conditions
hereinafter stated (i) . Firm ADSs (the "U.S. Firm ADSs") will be sold to the
several U.S. Underwriters named in Schedule I hereto (the "U.S. Underwriters")
in connection with the offering and sale of such U.S. Firm ADSs in the United
States and Canada to United States and Canadian Persons (as such terms are
defined below) (the "U.S. Offering") and (ii) . Firm ADSs (the "International
Firm ADSs") will be sold to the several International Underwriters named in
Schedule II hereto (the "International Underwriters") in connection with the
offering and sale of such International Firm ADSs outside the United States and
Canada, including to professional and institutional investors in Hong Kong and
to certain corporate investors outside the United States and Canada (the
"International Offering"). China International Capital Corporation Limited,
Citigroup Global Markets Inc., Credit Suisse First Boston LLC and Deutsche Bank
Securities Inc. (in alphabetical order) shall act as representatives (the "U.S.
Representatives") of the several U.S. Underwriters; China International Capital
Corporation Limited, Citigroup Global Markets Limited, Credit Suisse First
Boston (Hong Kong) Limited and Deutsche Bank AG, Hong Kong Branch (in
alphabetical order) shall act as representatives (the "International
Representatives") of the several International Underwriters. The U.S.
Underwriters and the International Underwriters are hereinafter collectively
referred to as the "Underwriters." The U.S. Representatives and the
International Representatives are hereinafter collectively referred to as the
"Representatives." As used herein, (A) "United States or Canadian Person" shall
mean any national or resident of the United States or Canada, or any
corporation, pension, profit-sharing or other trust or
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other entity organized under the laws of the United States or Canada or of any
political subdivision thereof (other than a branch located outside the United
States and Canada of any United States or Canadian Person), and shall include
any United States or Canadian branch of a person who is otherwise not a United
States or Canadian Person, (B) "United States" shall mean the United States of
America, its territories, its possessions and all areas subject to its
jurisdiction, and (C) "Canada" shall mean Canada, its provinces, its territories
and all areas subject to its jurisdiction.
The Company proposes to issue and sell to the U.S. Underwriters and the
International Underwriters not more than an additional . American Depositary
Shares, representing . H Shares (the "Company's Optional ADSs"), and the Selling
Shareholder proposes to sell to such Underwriters not more than . additional
American Depositary Shares, representing . H Shares (such American Depositary
Shares, together with the Company's Optional ADSs, the "Optional ADSs"), if and
to the extent that the Global Coordinators (as defined below) shall have
determined, on behalf of the Underwriters, to exercise the right to purchase
such Optional ADSs granted to the several Underwriters in Section 3(b) hereof.
The Firm ADSs and the Optional ADSs are hereinafter collectively referred to as
the "ADSs." The H Shares represented by the ADSs are hereinafter collectively
referred to as the "Shares."
Prior to the commencement of the U.S. Offering and the International
Offering, the Company has entered into an agreement (the "Hong Kong Underwriting
Agreement") providing for the public offering by the Company for subscription in
the Hong Kong Special Administrative Region ("Hong Kong") of the PRC (the "Hong
Kong Public Offering") of not more than an aggregate of . H Shares (the "Hong
Kong Shares") through arrangements with certain underwriters in Hong Kong (the
"Hong Kong Underwriters"), for whom China International Capital Corporation
(Hong Kong) Limited, Citigroup Global Markets Asia Limited, Credit Suisse First
Boston (Hong Kong) Limited and Deutsche Bank AG, Hong Kong Branch (in
alphabetical order) are acting as representatives (the "Hong Kong
Representatives"). The Hong Kong Public Offering, the U.S. Offering and the
International Offering are collectively referred to herein as the "Global
Offering." Anything herein or therein to the contrary notwithstanding, the
respective closings under this Agreement and the Hong Kong Underwriting
Agreement are hereby made expressly conditional on one another. This Agreement
and the Hong Kong Underwriting Agreement are collectively referred to herein as
the "Underwriting Agreements." As described in Sections 3(a), (b) and (c)
hereof, the Underwriters may, in their discretion, require that Shares in
respect of ADSs be delivered in lieu of ADSs.
The Underwriters and the Hong Kong Underwriters (through their appointed
representatives) have entered into an agreement dated the date hereof (the
"Intersyndicate Agreement") providing, among other things, that China
International Capital Corporation Limited, Citigroup Global Markets Asia
Limited, Credit Suisse First Boston (Hong Kong) Limited and Deutsche Bank AG,
Hong Kong Branch (in alphabetical order) shall act as the joint global
coordinators (the "Global Coordinators") for the Global Offering and shall have
the authority to reallocate the ADSs, the Shares and the Hong Kong Shares among
the underwriting syndicates in the manner contemplated in the U.S. Prospectus
and International Offering Circular. The Company hereby confirms the appointment
of the Global Coordinators by the Underwriters and the Hong Kong Underwriters.
It is understood and agreed that the Global Coordinators in their sole
discretion shall also have the authority to allocate the Optional ADSs among the
U.S. Offering and the International Offering to cover any over-allotments.
Three forms of offering documents are to be used in connection with the
offering and sale of ADSs under this Agreement: (i) one relating to the U.S.
Offering (the "U.S. Prospectus"), (ii) one relating to a public offering without
listing of the Shares in Japan (the "Japanese POWL") as part of the
International Offering (the "Japanese Prospectus") and
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(iii) one relating to the International Offering excluding the portion under
Japanese POWL (the "International Offering Circular"). The U.S. Prospectus will
be substantially identical to the International Offering Circular except for
substitute cover pages and a limited number of changes in the Prospectus. The
Japanese Prospectus, including a preliminary prospectus and any supplements
thereto, will be prepared in the Japanese language in accordance with the
Securities and Exchange Law of Japan and will contain substantially the same
information included in the U.S. Prospectus and International Offering Circular
with such omissions and additions as appropriate for the purpose of the Japanese
POWL. A separate form of offering document (the "Hong Kong Prospectus") is being
used in connection with the Hong Kong Public Offering pursuant to the Hong Kong
Underwriting Agreement and contains substantially the same information included
in the U.S. Prospectus and International Offering Circular and certain
supplemental pages.
In connection with the International Offering, the Company, the Selling
Shareholder, the Global Coordinators and a limited number of corporate investors
identified in Schedule III hereto (collectively the "Corporate Investors") have
entered into separate agreements identified in Schedule III hereto
(collectively, the "Corporate Investor Agreements") providing for, among other
things, the purchase by such Corporate Investors (collectively, the "Corporate
Investors") of an aggregate of . Shares upon satisfaction of certain conditions
pursuant to Regulation S under the Securities Act of 1933, as amended
("Regulation S"). It is understood that, as part of the International Offering,
(i) the International Underwriters are severally agreeing to purchase ADSs from
the Company and the Selling Shareholder to resell to the Corporate Investors in
the form of Shares or ADSs and (ii) the purchase price of such underwritten ADSs
or Shares shall be determined as set forth in Section 3(a) below.
The Company has filed with the Securities and Exchange Commission (the
"Commission") (i) a registration statement and a related preliminary U.S.
Prospectus on Form F-1 (Commission file number 333-110615) relating to the
registration of certain of the Shares and the offering thereof in the form of
ADSs under the Securities Act of 1933, as amended (the "Securities Act"), (ii) a
registration statement on Form F-6 (Commission file number 333-110622) relating
to the registration of the ADSs under the Securities Act, and (iii) a
registration statement on Form 8-A (Commission file number 1-.) relating to the
registration of the Shares and the ADSs under the Securities Exchange Act of
1934, as amended (the "Exchange Act"). The registration statement on Form F-1 as
amended at the time it becomes effective, or, if any post-effective amendment(s)
is (are) filed with respect thereto, as amended by such post-effective
amendment(s) at the time of its effectiveness, including in each case the
information (if any) deemed to be part of the registration statement at the time
of effectiveness pursuant to Rule 430A under the Securities Act, is hereinafter
referred to as the "Registration Statement;" and the U.S. Prospectus and the
International Offering Circular in the respective forms first used to confirm
sales of ADSs and Shares are hereinafter collectively referred to as the
"Prospectus." If the Company has filed a registration statement to register
additional Shares pursuant to Rule 462(b) under the Securities Act (the "Rule
462 Registration Statement"), then any reference to the "Registration Statement"
shall be deemed to refer to both the Registration Statement referred to above
(Commission file number 333-110615) and the Rule 462 Registration Statement, in
each case as amended from time to time. The registration statement on Form F-6,
at the time it becomes effective, or, if any post-effective amendment(s) is(are)
filed with respect thereto, as amended by such post-effective amendment(s) at
the time of its effectiveness, including in each case all exhibits thereto, is
hereinafter referred to as the "ADS Registration Statement." The registration
statement on Form 8-A, at the time it becomes effective, or, if any
post-effective amendment(s) is(are) filed with respect thereto, as amended by
such post-effective amendment(s) at the time of its effectiveness, including in
each case all exhibits thereto, is hereinafter referred to as the "8-A
Registration Statement."
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The ADSs will be evidenced by American Depositary Receipts (the "ADRs") to
be issued pursuant to the Deposit Agreement dated as of ., 2003 (the "Deposit
Agreement"), among the Company, JPMorgan Chase Bank, as depositary (the
"Depositary"), and the holders from time to time of the ADRs. Unless the context
otherwise requires, references to "ADSs" herein shall be deemed to include
Shares underlying such ADSs and the ADRs evidencing such ADSs.
1. Representations and Warranties. The Company and the Selling
Shareholder, jointly and severally, represent and warrant to, and agree with,
each of the Underwriters that:
(a) Each of the Registration Statement, the ADS Registration
Statement and the 8-A Registration Statement has become effective under the
Securities Act or the Exchange Act, as the case may be; no stop order
suspending the effectiveness of the Registration Statement, the ADS
Registration Statement or the 8-A Registration Statement is in effect, and
no proceedings for such purpose have been instituted by, or are pending
before or, to the Company's knowledge, threatened by, the Commission.
(b) (i) Each of the Registration Statement, the ADS Registration
Statement and the 8-A Registration Statement when it became effective, did
not contain and, as amended or supplemented, if applicable, will not
contain, any untrue statement of a material fact and did not and will not
omit to state any material fact required to be stated therein or necessary
to make the statements therein not misleading, (ii) the Registration
Statement, the ADS Registration Statement and the Prospectus comply and, as
amended or supplemented, if applicable, will comply in all material
respects with the Securities Act and the applicable rules and regulations
of the Commission thereunder (the "Securities Act Regulations"), (iii) the
8-A Registration Statement complies and, as amended or supplemented, if
applicable, will comply in all material respects with the Exchange Act and
the applicable rules and regulations of the Commission thereunder (the
"Exchange Act Regulations"), and (iv) the Prospectus does not contain (and
the preliminary prospectuses dated November 22, 2003 and December 1, 2003,
as of their respective dates, did not contain) and, as amended or
supplemented, if applicable, will not contain, any untrue statement of a
material fact and did not, does not and will not omit to state any material
fact necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading, except that the
representations and warranties set forth in this Section 1(b) do not apply
to statements or omissions in the Registration Statement or the Prospectus
based upon information relating to any Underwriter furnished to the Company
in writing by such Underwriter through any of the U.S. Representatives or
the International Representatives, as the case may be, expressly for use
therein, it being understood and agreed that the only such information is
that described as such in Section 8(b) hereof.
(c) Schedule IV sets forth a correct and complete list of each and
every subsidiary of the Company (each a "Subsidiary" and, collectively, the
"Subsidiaries"). Neither the Company nor any of its Subsidiaries has
sustained since the date of the latest audited financial statements
included in the Prospectus any loss or interference with its business from
fire, explosion, earthquake, flood or other calamity, whether or not
covered by insurance, or from any labor dispute or court or governmental
action, order or decree, otherwise than as disclosed in the Prospectus,
except for the loss or interference that would not, individually or in the
aggregate, have a material adverse effect on the business, prospects,
management, shareholders' or owners' equity, results of operations or
financial condition of the Company and its Subsidiaries, taken as a whole
("Material Adverse Effect"); and, since the respective dates as of which
information is given in the Registration Statement and the Prospectus,
except as disclosed in the Prospectus, there has not been any (i) material
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addition, or development involving a prospective material addition, to the
Company's liability for future life policyholders' benefits, policyholders'
contract deposits and other funds, or reserve for claims and claims
adjustment expenses, other than in the ordinary course of business; (ii)
material decrease in the surplus of the Company or material change in the
capital stock or other ownership interests of the Company or any of its
Subsidiaries or any material increase in the long-term debt of the Company
and its Subsidiaries, taken as a whole; or (iii) material adverse change,
or development involving a prospective material adverse change, in or
affecting the business, prospects, management, shareholders' or owners'
equity, results of operations or financial position, of the Company and its
Subsidiaries, taken as a whole.
(d) Since the date of the latest audited financial statements
included in the Prospectus, neither the Company nor any of its Subsidiaries
has (i) entered into or assumed any material contract, (ii) incurred,
assumed or acquired any material liability (including contingent liability)
or other obligation, (iii) acquired or disposed of or agreed to acquire or
dispose of any business or any other asset material to the Company and its
Subsidiaries taken as a whole or (iv) entered into a letter of intent or
memorandum of understanding (or announced an intention to do so) relating
to any matters identified in clauses (i) through (iii) above, except as
disclosed in the Prospectus.
(e) Except as disclosed in the Prospectus, subsequent to the
respective dates as of which information is given in the Registration
Statement and the Prospectus, the Company has not purchased any of its
outstanding capital stock, nor declared, paid or otherwise made any
dividend or distribution of any kind on its capital stock, nor transferred
or distributed any cash or other assets to the Selling Shareholder or any
of its subsidiaries.
(f) The Company has been duly incorporated and is validly existing
as a joint stock company with limited liability and in good standing under
the laws of the PRC, with full legal right, power and authority (corporate
and other), as authorized by the PRC government, to own, use, lease and
operate its properties, conduct its business in the manner presently
conducted and as described in the Prospectus, and is duly qualified to
transact business in each jurisdiction in which it conducts any business
and duly qualified to own, use, lease and operate its properties in each
jurisdiction in which it owns or leases properties and such qualification
is required, or is and will be subject to no material liability or
disability by reason of the failure to be so qualified in any such
jurisdiction; each of the Articles of Association, the business license,
the insurance business permit and other constituent documents of the
Company complies with all applicable requirements of PRC law, including but
not limited to the PRC Company Law and the PRC Insurance Law, and each is
in full force and effect; and the Selling Shareholder has been duly
established as a state-owned enterprise.
(g) Schedule IV correctly identifies each of the Subsidiaries
incorporated or established in the PRC (each a "PRC Subsidiary"). The
Company does not have Subsidiaries incorporated or established in any
jurisdiction other than the PRC. Each PRC Subsidiary has been duly
incorporated or established and is validly existing and in good standing
under the laws of the PRC with full legal right, power and authority
(corporate and other), as authorized by the PRC government, to own, use,
lease and operate its properties, conduct its business in the manner
presently conducted and, if such manner is described in the Prospectus, as
described in the Prospectus, and is duly qualified to transact business in
each jurisdiction in which it conducts any business and duly qualified to
own, use, lease and operate its properties in each
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jurisdiction in which it owns or leases properties and such qualification
is required, or is and will be subject to no material liability or
disability by reason of the failure to be so qualified in any such
jurisdiction; each of the Articles of Association, the business license,
the insurance business permit (where applicable) and other constituent
documents of each PRC Subsidiary complies with all applicable requirements
of PRC law, including but not limited to the PRC Company Law and the PRC
Insurance Law, and each is in full force and effect.
(h) Each Subsidiary is a legal person with limited liability and the
liability of the Company in respect of equity interests held in such
Subsidiary is limited to its investment therein. All of the outstanding
shares of capital stock of, or equity interests in, each Subsidiary have
been duly authorized and are validly issued, fully paid and non-assessable
and, except as described in the Prospectus, are owned directly or
indirectly by the Company, free and clear of all liens, charges,
restrictions upon voting or transfer (other than any statutory right of
first refusal of any non-transferring shareholder) or any other
encumbrances, equities or claims.
(i) Except as described in the Prospectus, each of the Company and
the Subsidiaries has valid title to, or valid leasehold interests in, all
of the real properties and assets that it purports to own and valid title
to all personal properties and assets that it purports to own, in each case
free and clear of all liens, charges, encumbrances, equities, claims,
defects, options or restrictions, except such as would not, individually or
in the aggregate, have a Material Adverse Effect. Except as described in
the Prospectus, each material lease to which the Company or any of its
Subsidiaries is a party is legal, valid, binding and enforceable in
accordance with its terms against the other parties thereto, and no default
(and, to the Company's best knowledge, no event which, with notice or lapse
of time or both, would constitute a default) by the Company or such
Subsidiary which has or is likely to have a Material Adverse Effect has
occurred and is continuing under any such lease. Except as described in the
Prospectus, if the Selling Shareholder is the lessor under any such lease,
the Selling Shareholder has valid title to, or unfettered ability to grant,
and has granted valid leasehold interests in (and for the terms stated
therein) the real properties and assets that are the subject of such lease.
Except as described in the Prospectus, each of the Company and its
Subsidiaries has obtained all land-use rights and rights of way in respect
of the real properties, which are required to conduct its business and to
which it holds title, free and clear of all encumbrances and defects,
except such as are not material and do not materially interfere with the
use made and proposed to be made of such property by the Company or the
relevant Subsidiary, as the case may be, and all such land-use rights and
rights of way are legal, valid, binding and enforceable in accordance with
the terms of their establishment, except such as are not material and do
not materially interfere with the use made and proposed to be made of such
property by the Company or the relevant Subsidiary, as the case may be.
Neither the Company nor any of its Subsidiaries owns, operates, manages or
has any other right or interest in any other material real property of any
kind, except for the real property described in the property valuation
report set out in Annex B of the Prospectus.
(j) The Company has the registered capital as set forth in the
Prospectus, and all of the issued shares of capital stock of the Company
(i) have been duly authorized, (ii) are validly issued, fully paid and
non-assessable, (iii) were not issued in violation of any preemptive or
similar rights and (iv) conform in all material respects to the description
thereof contained in the Prospectus. There are no outstanding securities
issued by the Company convertible into or exchangeable for, rights,
warrants or options to acquire from the Company, or obligations of the
Company to issue, H Shares or any other capital stock of the Company except
pursuant to the Corporate Investor Agreements, this Agreement and the Hong
Kong
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Underwriting Agreement. There are no outstanding rights, warrants or
options to acquire, or instruments or securities convertible into or
exchangeable for, any shares of capital stock of, or direct interests in,
any Subsidiary.
(k) The Shares to be issued and sold by the Company to the
Underwriters hereunder and (in the case of under-subscription in the Hong
Kong Public Offering) under the Hong Kong Underwriting Agreement and the
Shares to be sold by the Selling Shareholder to the Underwriters hereunder
have been duly and validly authorized, and, when issued, in the case of the
Shares to be issued and sold by the Company, and delivered against payment
therefor pursuant to this Agreement or the Hong Kong Underwriting
Agreement, as applicable, will be duly and validly issued and delivered and
fully paid and non-assessable; the Shares and the ADSs representing such
Shares conform in all material respects to the descriptions thereof
contained in the Registration Statement and the Prospectus, including but
not limited to the descriptions under the captions "Description of Share
Capital" and "Description of American Depositary Receipts" in the
Prospectus; the holders of outstanding shares of capital stock of the
Company are not, and at the First Closing Time (as defined below) and at
each Optional Closing Time (as defined below), if applicable, will not be,
entitled to preemptive or other similar rights to acquire the Shares or
ADSs; the Shares may be freely deposited by the Company or the Selling
Shareholder, as the case may be, with the Depositary (or with the Custodian
(as defined below) as agent for the Depositary) in accordance with the
Deposit Agreement against issuance of ADRs evidencing ADSs representing the
Shares so deposited and sold hereunder by the Company and the Selling
Shareholder; the ADSs and the Shares are freely transferable by the
Company, or the Selling Shareholder, as the case may be, to or for the
account of the several Underwriters and Hong Kong Underwriters, as
applicable, and (to the extent described in the Prospectus) the initial
purchasers thereof; and, except as described in the Prospectus, there are
no restrictions on subsequent transfers of the Shares or the ADSs under the
laws of the PRC, Hong Kong or the United States.
(l) The ADSs have been duly approved for listing, subject to
official notice of issuance, on the New York Stock Exchange, Inc. (the
"NYSE") under the symbol "LFC". The Shares have been approved in principle
for listing on The Stock Exchange of Hong Kong Limited (the "HKSE") under
the stock code "2628".
(m) Each of the Company, each Subsidiary and the Selling Shareholder
is duly organized, and each of the Company and the Selling Shareholders is
licensed as a nationwide life insurance company in the PRC and, except as
disclosed in the Prospectus, is duly licensed or authorized as an insurer
in each of the provinces, municipalities and autonomous regions in the PRC
in which it conducts any insurance business; each of the Company, each such
Subsidiary and the Selling Shareholder has all approvals, orders, consents,
authorizations, licenses, certificates, clearances, permits, registrations
and qualifications (collectively, the "Approvals") of and from all
governmental and insurance regulatory authorities necessary to conduct its
business as described in the Prospectus, and there is no pending or, to the
knowledge of the Company and the Selling Shareholder, threatened action,
suit, proceeding or investigation that could reasonably be expected to lead
to the revocation, termination or suspension of any such Approval, except
as disclosed in the Prospectus or where the failure to be so duly licensed
or authorized would not, individually or in the aggregate, have a Material
Adverse Effect.
(n) The Deposit Agreement has been duly authorized, executed and
delivered by the Company, and constitutes a legal, valid, and binding
agreement of the Company, enforceable in accordance with its terms, subject
as to enforceability to
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bankruptcy, insolvency, reorganization, moratorium and similar laws of
general applicability relating to or affecting creditors' rights and to
general equity principles; upon due issuance by the Depositary of ADRs
evidencing ADSs against the deposit of the underlying Shares in respect
thereof in accordance with the provisions of the Deposit Agreement, such
ADRs will be duly and validly issued and the persons in whose names the
ADRs are registered will be entitled to the rights specified therein and in
the Deposit Agreement; and the Deposit Agreement and the ADRs conform in
all material respects to the descriptions thereof contained in the
Prospectus.
(o) Subject to the provisions of the Deposit Agreement, the
Depositary, as registered shareholder of the Company, shall have all rights
of other shareholders of the Company.
(p) Each of this Agreement, the Hong Kong Underwriting Agreement,
the Corporate Investor Agreements has been duly authorized, executed and
delivered by the Company, and constitutes a legal, valid and binding
agreement of the Company, enforceable in accordance with its terms, subject
as to enforceability to bankruptcy, insolvency, reorganization, moratorium
and similar laws of general applicability relating to or affecting
creditors' rights and to general equity principles.
(q) All Approvals of or with any insurance regulatory agency, any
national, provincial, municipal, local, foreign or other governmental
authority, agency or body, any self-regulatory organization or any court or
other tribunal or any stock exchange authorities (each a "Governmental
Agency", and collectively, "Governmental Agencies") having jurisdiction
over the Company or any of the Subsidiaries or the Selling Shareholder or
any of their properties required for the deposit of the Shares being
deposited with the Depositary against the issuance of ADRs evidencing the
ADSs in respect thereof, for the authorization, execution and delivery by
the Company and the Selling Shareholder, as the case may be, of this
Agreement, the Hong Kong Underwriting Agreement, the Corporate Investor
Agreements, the Deposit Agreement, the Restructuring Documents and the
Registration Statement, and for the performance by the Selling Shareholder
of its obligations contemplated hereunder and thereunder, and for the
issuance and sale by the Company, and the sale by the Selling Shareholder,
of the Shares and the ADSs, as the case may be, to investors have been
obtained or made, are in full force and effect and copies thereof have been
furnished to the Global Coordinators, except that no such representation or
warranty is made with respect to Approvals as may be required under the
United States federal securities laws, the "blue sky" laws of any State of
the United States or the securities laws of any jurisdiction outside the
United States insofar as such laws apply to the distribution of the Shares
and the ADSs by or for the account of the Underwriters.
(r) Each of the Company, the Subsidiaries, the Selling Shareholder
and its subsidiaries has all necessary Approvals of or from, and has made
all filings, registrations and declarations (collectively, the "Filings")
with, all Governmental Agencies necessary to (i) own, lease, license and
use its properties and assets and to conduct its business as in the manner
described in the Prospectus, and (ii) use the proceeds to be received by
the Company from the Global Offering, without restriction and in the manner
contemplated by the Prospectus, except as disclosed in the Prospectus or
where the failure to make such filings, registrations and declarations
would not, individually or in the aggregate, have a Material Adverse
Effect; such Approvals contain no restrictions or conditions not described
in the Prospectus, except where such restrictions or conditions would not,
individually or in the aggregate, have a Material Adverse Effect, and,
except as disclosed in the Prospectus or where the failure to be in full
force and effect would not individually or in the
9
aggregate, have a Material Adverse Effect, all Approvals and all Filings
are in full force and effect and neither the Company nor the Selling
Shareholder nor any of their respective subsidiaries has received any
notice of any event, inquiry, investigation or proceeding that would
reasonably be expected to result in the suspension, revocation or
limitation of any such Approval or otherwise impose any limitation on the
conduct of the business of the Company or the Selling Shareholder or any of
their respective subsidiaries.
(s) Neither the Company nor any of the Subsidiaries, nor the Selling
Shareholder nor any of its subsidiaries, is, in any respect, in violation
of any applicable law, rule, regulation, order, ordinance, judgment,
decree, whether national, provincial, municipal or local, domestic or
foreign, including, without limitation, any insurance laws and regulations
of its respective jurisdiction of incorporation and the insurance laws and
regulations of other jurisdictions which are applicable to it, except where
such violation would not, individually or in the aggregate, have a Material
Adverse Effect.
(t) Except as described in the Prospectus, all dividends and other
distributions that may be declared and payable on the shares of capital
stock of the Company in Renminbi to the H Share shareholders of the Company
may under the current laws and regulations of the PRC be converted into
foreign currency and may be freely transferred out of the PRC and all such
dividends (i) will not be subject to withholding or other taxes under the
current laws and regulations of the PRC, (ii) are otherwise free and clear
of any other tax, withholding or deduction in the PRC and (iii) except for
conversion of Renminbi into foreign currency, may be so paid without the
necessity of obtaining any Approval in the PRC.
(u) The issuance and sale of the Shares and ADSs being delivered at
the relevant Closing Time to be sold by the Company under this Agreement
and the Hong Kong Underwriting Agreement, the deposit of the Shares being
deposited with the Depositary against issuance of the ADRs evidencing the
ADSs under the Deposit Agreement, the application of the net proceeds from
the Global Offering (as set forth in and contemplated by the Prospectus)
and the compliance by the Company with all of the provisions of this
Agreement, the Hong Kong Underwriting Agreement, the Corporate Investor
Agreements and the Deposit Agreement, and the consummation by the Company
of the transactions contemplated herein and therein, did not, and will not,
conflict with or result in a breach or violation of any of the terms or
provisions of, or constitute a default under, any indenture, mortgage, deed
of trust, loan agreement, note, lease or other agreement or instrument of
any kind whatsoever to which the Company or any of its Subsidiaries is a
party or by which the Company or any of its Subsidiaries is bound or to
which any of the properties or assets of the Company or any of its
Subsidiaries is subject, except for such conflicts, breaches, violations or
defaults which would not (i) individually or in the aggregate, have a
Material Adverse Effect, or (ii) affect the validity of, or have any
adverse effect on, the issuance and sale of the Shares and ADSs or the
other transactions contemplated hereunder; and such actions did not, and
will not, result in any violation of the provisions of (x) the Articles of
Association, business licenses or other constituent documents of the
Company or any of its Subsidiaries or (y) any law or statute or any rule,
regulation, judgment, order, decree or Approval of any Governmental Agency
having jurisdiction over the Company or any of its Subsidiaries or any of
their properties, except, in the case of (y), as would not (i) individually
or in the aggregate, have a Material Adverse Effect, or (ii) affect the
validity of, or have any adverse effect on, the issuance and sale of the
Shares and ADSs and the other transactions contemplated hereunder.
10
(v) Neither the Company nor any of the Subsidiaries is (i) in
violation of its Articles of Association, business license, insurance
business permit (where applicable) or other constituent documents, or (ii)
in default (or is aware of an event which, with notice or the passage of
time or both, would result in a default) in the performance or observance
of any obligation, agreement, covenant or condition contained in any
contract, indenture, mortgage, loan agreement, note, lease or other
agreement or instrument to which it is a party or by which it may be bound
or to which any of its properties may be subject except, in the case of
clause (ii) only where such violation or default would not, individually or
in the aggregate, have a Material Adverse Effect and would not affect the
validity of, or have any adverse effect on, the issuance and sale of the
Shares and ADSs or the other transactions contemplated hereunder.
(w) Except as described in the Prospectus, no stamp or other
issuance or transfer taxes or duties and no capital gains, income,
withholding or other taxes are payable by or on behalf of the Company, any
of the Subsidiaries or the Selling Shareholder to the PRC or Hong Kong or
the United States or any political subdivision or taxing authority thereof
or therein in connection with (i) the creation, allotment and issuance of
the Shares, (ii) the deposit with the Depositary of Shares by the Company
and the Selling Shareholder against the issuance of ADRs evidencing ADSs,
(iii) the sale and delivery by the Company and the Selling Shareholder of
the Shares and the ADSs to or for the respective accounts of the
Underwriters and the Hong Kong Underwriters, as the case may be, in the
manner contemplated in this Agreement and in the Hong Kong Underwriting
Agreement, (iv) the execution and delivery of this Agreement, the Hong Kong
Underwriting Agreement, the Corporate Investor Agreements and the Deposit
Agreement or (v) the sale and delivery by the Underwriters and the Hong
Kong Underwriters of the ADSs and the Shares, as the case may be, to the
initial purchasers thereof, including, without limitation, to the Corporate
Investors, in the manner contemplated in the Prospectus or the Hong Kong
Prospectus, as the case may be.
(x) Except as described in the Prospectus, no stamp or other
issuance or transfer taxes or duties and no capital gains, income (except
for taxes on their income and operations generally), withholding or
other taxes are payable by or on behalf of the Underwriters or the Hong
Kong Underwriters to the PRC or Hong Kong or the United States or any
political subdivision or taxing authority thereof or therein in connection
with (i) the creation, allotment and issuance of the Shares, (ii) the
deposit with the Depositary of Shares by the Company and the Selling
Shareholder against issuance of ADRs evidencing ADSs, (iii) the sale and
delivery by the Company and the Selling Shareholder of the Shares and the
ADSs to or for the respective accounts of the several Underwriters and the
Hong Kong Underwriters, as the case may be, in the manner contemplated in
this Agreement and in the Hong Kong Underwriting Agreement, (iv) the
execution and delivery of this Agreement, the Hong Kong Underwriting
Agreement, the Corporate Investor Agreements and the Deposit Agreement, (v)
the sale and delivery by the Underwriters and the Hong Kong Underwriters of
the ADSs and the Shares, as the case may be, to the initial purchasers
thereof including, without limitation, to the Corporate Investors, in the
manner contemplated in the Prospectus or the Hong Kong Prospectus, as the
case may be.
(y) Except as described in the Prospectus, neither the Company nor
any of the Subsidiaries nor any of their respective officers, directors or
affiliates (within the meaning of Securities Act and the Securities Act
Regulations) has taken, or will take, directly or indirectly, any action
designed to or which has constituted or which might reasonably be expected
to cause or result in, under the Exchange Act or the Securities and Futures
Ordinance of Hong Kong, stabilization or manipulation of the
11
price of any security of the Company to facilitate the sale or resale of
the Shares or ADSs.
(z) The Company, the Subsidiaries, the Selling Shareholder, certain
subsidiaries of the Selling Shareholder, and certain affiliates of the
foregoing (collectively, the "China Life Group" and each company or other
entity forming a part of the China Life Group individually, a "China Life
Group Member") have completed a series of events and transactions as
described under the captions "The Restructuring" and "Relationship with
CLIC" in the Prospectus (the "Restructuring Transactions"), including,
among other things, (i) the entering into by the Company and the Selling
Shareholder of a restructuring agreement (the "Reorganization Agreement"),
effective as of June 30, 2003, to effect the restructuring of the China
Life Group; (ii) the entering into by the Company and the Selling
Shareholder of a policy management agreement dated September 30, 2003 (the
"Policy Management Agreement"), under which the Company has agreed to
provide certain insurance policy administration services to the Selling
Shareholder relating to those insurance policies retained by the Selling
Shareholder pursuant to the Reorganization Agreement; (iii) the entering
into of two asset management agreements dated November 27, 2003 (the "Asset
Management Agreements"), by China Life Asset Management Company Limited
("AMC"), the asset management joint venture established between the Company
and the Selling Shareholder, one with each of the Company and the Selling
Shareholder respectively under which AMC has agreed to provide investment
management services to the Company and the Selling Shareholder; (iv) the
entering into by the Company and the Selling Shareholder of a
non-competition agreement dated September 30, 2003 (the "Non-Competition
Agreement"), under which the Selling Shareholder has agreed, among other
things and subject to certain exceptions, to refrain from operating
businesses which compete or would compete with the Company, without the
Company's written consent; (v) the entering into by the Company and the
Selling Shareholder of a trademark license agreement dated September 30,
2003 (the "Trademark License Agreement"), under which the Selling
Shareholder granted a non-exclusive license to the Company to use certain
trademarks, as described in the Prospectus; and (vi) the entering into by
the Company and the Selling Shareholder of a 20-year property leasing
agreement dated September 30, 2003 (the "Property Leasing Agreement"),
under which the Company has agreed to lease from the Selling Shareholder
certain properties as described therein. All material documents that were
executed by or issued to the Company, the Selling Shareholder or any
Governmental Agency in connection with the Restructuring Transactions are
set forth in Schedule V. The documents set forth in Schedule V are
hereinafter collectively referred to as the "Restructuring Documents" and
individually as a "Restructuring Document." Each Restructuring Document
constituting an agreement is hereinafter referred to as a "Restructuring
Agreement" and collectively as the "Restructuring Agreements."
(aa) The descriptions of the Restructuring Transactions and the legal
and other consequences thereof set forth in the Prospectus under the
captions "The Restructuring" and "Relationship with CLIC" are accurate,
complete and fair in all material respects. Except as described in the
Prospectus, all of the Restructuring Transactions have been effected prior
to the date hereof in compliance with all applicable national, provincial,
municipal and local laws in the PRC. The Restructuring Transactions
constitute legal, valid and binding transactions completed by the parties
to the Restructuring Agreements.
(bb) All material Approvals required from or of any Governmental
Agency in connection with the Restructuring Transactions and the execution,
delivery and performance of the Restructuring Agreements have been made or
obtained in
12
writing, including, without limitation, all actions necessary for the
approval of the Restructuring Transactions by the PRC State Council, the
China Insurance Regulatory Commission (the "CIRC"), the PRC Ministry of
Finance (the "MOF"), the China Securities Regulatory Commission (the
"CSRC"), the State Administration of Industry and Commerce (the "SAIC") and
the State Taxation Administration (the "STA"), and no such Approval has
been withdrawn or is subject to any condition precedent which has not been
fulfilled or performed.
(cc) Each Restructuring Document has been duly authorized, executed
and delivered by the Company, the Selling Shareholder, each Subsidiary and
other China Life Group Member that is a party to such Restructuring
Document, as the case may be, prior to the date hereof, and each
Restructuring Agreement constitutes a legal, valid and binding agreement of
the Company, the Selling Shareholder, each such Subsidiary and China Life
Group Member that is a party to such Restructuring Agreement, as the case
may be, enforceable in accordance with its terms, subject as to
enforceability to bankruptcy, insolvency, reorganization, moratorium and
similar laws of general applicability relating to or affecting creditors'
rights and to general equity principles.
(dd) The Restructuring Transactions and the execution by the Company,
the Subsidiaries, the Selling Shareholder or the other China Life Group
Members of each Restructuring Document to which it is a party and the
delivery by each of the Company, the Subsidiaries, the Selling Shareholder
and such other China Life Group Members of, and the performance by each of
the Company, the Subsidiaries, the Selling Shareholder and such other China
Life Group Members of its obligations under, each Restructuring Document to
which it is a party and the consummation of the Restructuring Transactions
does not and will not conflict with, or result in a breach or violation of,
any of the terms or provisions of, or constitute a default under, any
indenture, mortgage, deed of trust, loan agreement, note, lease or other
agreement or instrument to which the Company or any of the Subsidiaries or
the Selling Shareholder or any of the other China Life Group Members is a
party, or by which the Company or any of the Subsidiaries or the Selling
Shareholder or any of the other China Life Group Members is bound or to
which any of the property or assets of the Company or any of the
Subsidiaries or the Selling Shareholder or any of the other China Life
Group Members is subject, that individually or in the aggregate, is
material to the Selling Shareholder and its subsidiaries, taken as a whole,
or to the Company and the Subsidiaries, taken as a whole, and such actions
did not, and will not, result in any violation of the provisions of (i) the
Articles of Association, business licenses, insurance business permits
(where applicable) or other constituent documents of the Company or any
Subsidiary or the Selling Shareholder or any of the other China Life Group
Members or (ii) any law or statute or any order, rule, regulation,
judgment, order or decree of any Governmental Agency having jurisdiction
over the Company or any of the Subsidiaries or the Selling Shareholder or
any of the other China Life Group Members or any of their properties,
except, in the case of clause (ii) above, for such violations which would
not individually or in the aggregate, (x) have a Material Adverse Effect,
or (y) affect the valid and binding nature of the Restructuring
Transactions or any Restructuring Document.
(ee) In connection with the Restructuring Transactions, the Selling
Shareholder has legally and validly transferred to the Company (i) all
long-term insurance policies (policies having a term of more than one year
from the date of issuance) written by the Selling Shareholder and issued on
or after June 10, 1999, having policy terms approved by or filed with the
CIRC on or after June 10, 1999 and
13
either (A) recorded as a long-term insurance policy as of June 30, 2003 in
a database attached to the Reorganization Agreement as an annex or (B)
having policy terms for group supplemental medical insurance (fund type),
(ii) all stand-alone short-term policies (policies having a term of one
year or less from the date of issuance) issued on or after June 10, 1999
and (iii) all riders supplemental to the policies described in clauses (i)
and (ii) above, together with those reinsurance contracts specified in an
annex to the Reorganization Agreement (collectively, the "Transferred
Policies"). All insurance policies written by the Selling Shareholder and
issued on or before June 30, 2003 (collectively, the "Non-Transferred
Policies") were legally and validly retained by the Selling Shareholder.
All new insurance policies written after June 30, 2003 by or on behalf of
the Company are the policies of the Company, and, except as described in
the Prospectus, no insurance policies have been written for the account of
CLIC after June 30, 2003. Except as disclosed in the Prospectus, the
transfer of the Transferred Policies from the Selling Shareholder to the
Company is legal, valid and binding against each and every policyholder of
the Transferred Policies, and in particular, legal, valid and binding
consents of the policyholders have been duly obtained with respect to the
transfer of each of the Transferred Policies, including, but not limited
to, consent from each policyholder who acquired a Transferred Policy
written by the Selling Shareholder and issued on or after May 28, 2003; and
no holder of a Transferred Policy has any valid claim against the Selling
Shareholder or the Company arising out of or in connection with the
Restructuring Transactions or any of them. No consent of any holder of a
policy written by the Selling Shareholder which is not a Transferred Policy
is or was necessary in connection with the transfer of the Transferred
Policies or any of the other Restructuring Transactions and no holder of
any such policy has any valid claim against the Selling Shareholder or the
Company arising out of or in connection with the Restructuring Transactions
or any of them. No claim by any holder of a policy written by the Selling
Shareholder or the Company arising out of or in connection with the
Restructuring Transactions or any of them is pending or, to the knowledge
of the Company and the Selling Shareholder, threatened. Neither the Company
nor any of the Subsidiaries is liable for any debts or other liabilities of
the Selling Shareholder not specifically assumed by the Company in the
Restructuring Transactions. The Company and the Subsidiaries do not and
will not have any payment obligations or other liabilities to
policyholders, of or otherwise in respect of, those policies that were
retained by the Selling Shareholder in the Restructuring Transactions.
(ff) A special purpose fund to satisfy the payment of benefits and
claims obligations arising from the Non-Transferred Policies, as well as
expenses incurred in operating the special purpose fund, including
third-party management fees and professional fees and such other purposes
as the management committee of the fund may agree is currently in the
process of being established by the Selling Shareholder and the MOF. The
MOF has the authority to issue its approval regarding the special purpose
fund, the approval is valid and effective and neither the Company nor the
Selling Shareholder has any reason to believe that the MOF will revoke the
approval. The descriptions of the fund and the MOF's approval thereof
contained in the Prospectus are fair and accurate in all material respects.
(gg) Except as disclosed in the Prospectus or such as would not,
individually or in the aggregate, have a Material Adverse Effect, all of
the Selling Shareholder's exclusive sales agents, of whom the total number
was approximately 650,000 as of June 30, 2003, have legally and validly (i)
entered into sales agency contracts with the Company and (ii) terminated
their respective sales agency contracts with the Selling Shareholder.
14
(hh) Each agreement of the Selling Shareholder relating to any
bancassurance arrangement, non-dedicated agency, dedicated insurance
agency, insurance brokerage company and other intermediary which was in
existence prior to the Restructuring Transactions has been legally and
validly transferred to the Company and each necessary consent of each other
party to each such agreement has been obtained and is legal, valid and
binding, except for such failures to effect a valid transfer or obtain a
necessary consent as would not, individually or in the aggregate, have a
Material Adverse Effect and which, to the extent material, are described in
the Prospectus.
(ii) In connection with the Restructuring Transactions, all consents,
approvals and authorizations have been legally, validly and unconditionally
obtained in writing from third parties under any joint venture agreements,
distribution agreements or arrangements with any commercial banks, post
offices, savings cooperatives, travel agencies, hotels, airline sales
counters and insurance brokerage and insurance agency companies, bank
loans, guarantees and all other contracts, where such contracts, agreements
or arrangements purportedly have been transferred or assigned to the
Company, except as disclosed in the Prospectus or as would not,
individually or in the aggregate, have a Material Adverse Effect.
(jj) Other than the Restructuring Documents and the Restructuring
Agreements as set forth in Schedule V, there are no other material
documents or agreements, written or oral, that have been entered into by
the Company and the Selling Shareholder in connection with the
Restructuring Transactions which have not been previously provided, or made
available, to the Underwriters and, to the extent material, disclosed in
the Prospectus.
(kk) None of the Company, the Subsidiaries and the businesses now run
by the Company and the Subsidiaries, nor, to the knowledge of the Company,
any of their respective officers, directors, supervisors, managers, agents,
or employees have, directly or indirectly, (i) made or authorized any
contribution, payment or gift of funds or property to any official,
employee or agent of any governmental agency, authority or instrumentality
in the PRC, Hong Kong or any other jurisdiction or (ii) made any
contribution, payment or gift of funds or property to any candidate for
public office, in either case, where either the payment or the purpose of
such contribution, payment or gift, after the registration of the Shares
and ADSs under the Exchange Act, will cause the Company to be in violation
of the U.S. Foreign Corrupt Practices Act of 1977, as amended, or the rules
and regulations promulgated thereunder, if applicable.
(ll) The Registration Statement, the U.S. Prospectus, the ADS
Registration Statement and the 8-A Registration Statement and the filing
thereof with the Commission have been duly authorized by and on behalf of
the Company, and the Registration Statement, the ADS Registration Statement
and the 8-A Registration Statement have been duly executed pursuant to such
authorization by and on behalf of the Company.
(mm) There are no legal, governmental or arbitral proceedings pending
or, to the knowledge of the Company, threatened to which the Company or any
of the Subsidiaries is a party (including, without limitation, any
proceeding challenging the effectiveness or validity of the Restructuring
Transactions) or to which any of the properties of the Company or any of
the Subsidiaries is subject that are required to be described in the
Registration Statement or the Prospectus and are not so described or any
statutes, regulations, contracts or other documents that are required to be
15
described in the Registration Statement or the Prospectus or to be filed as
exhibits to the Registration Statement that are not described or filed as
required.
(nn) Except as disclosed in the Prospectus, neither the Company nor
any of the Subsidiaries has any material obligations to provide housing
benefits, severance or retirement benefits, death or disability benefits or
other actual or contingent employee benefits or perquisites to any (i)
present or past employees, whether permanent or temporary, of the Company
or any of the Subsidiaries, (ii) present or past employees of other China
Life Group Members, (iii) present or past employees of the Selling
Shareholder, (iv) parties that transferred assets or businesses to the
Company and the Subsidiaries in connection with the Restructuring
Transactions or (v) any Governmental Agency.
(oo) All material guarantees of indebtedness of the Company or any of
the Subsidiaries are in full force and effect, and there are no outstanding
material guarantees or contingent payment obligations of the Company or any
of the Subsidiaries in respect of indebtedness of any party that is not the
Company or any of the Subsidiaries, except as disclosed in the Prospectus.
No indebtedness (actual or contingent) and no contract or arrangement
(other than employment contracts or arrangements) is outstanding between
(i) the Company or any of the Subsidiaries and (ii) any director or officer
of the Company or of the Subsidiaries or any person connected (within the
meaning of the Hong Kong Listing Rules) with such director or officer
(including but not limited to his or her spouse, infant, child or any
company or undertaking in which he or she holds a controlling interest).
(pp) There are no material relationships or transactions between the
Company or any of the Subsidiaries, on one hand, and their respective
affiliates, officers and directors or their shareholders, customers or
suppliers, on the other hand, which are not disclosed or reflected in the
Prospectus; and the statements in the Prospectus in this regard are true
and correct in all material respects, and do not omit anything necessary to
make such statements, in light of the circumstances under which they are
made, not misleading.
(qq) Except as disclosed in the Prospectus or such as would not,
individually or in the aggregate, have a Material Adverse Effect, the
Company and the Subsidiaries own or have valid licenses in full force and
effect for the lengths of time indicated in the Prospectus or otherwise
have the legal right to use, or can acquire on reasonable terms, all
material, copyrights, know-how (including trade secrets and other
unpatented and/or unpatentable proprietary or confidential information,
systems or procedures), trademarks, service marks and trade names
(including the "China Life" name and logo) currently employed by them in
connection with the businesses currently operated by them, and neither the
Company nor any of the Subsidiaries has received any notice of infringement
of or conflict with asserted rights of others with respect to any of the
foregoing which, individually or in the aggregate, if the subject of an
unfavorable decision, ruling or finding, would result in any Material
Adverse Effect; to the Company's and the Selling Shareholders' knowledge in
conducting its business activities, none of the Company or any of the
Subsidiaries has infringed any patent, copyright, title, trademark, service
▇▇▇▇, trade name or other intellectual property rights already registered
by a third party in the PRC or elsewhere, other than such infringements
which, either individually or in the aggregate, would not have a Material
Adverse Effect. Neither the Company nor any of its Subsidiaries hold any
patent, patent rights or inventions which are individually or in the
aggregate material to their businesses.
16
(rr) The Company and the Subsidiaries maintain insurance of the types
and in the amounts that the Company reasonably believes to be adequate for
their respective businesses. The Company does not have any reason to
believe that it will not be able to renew its existing insurance coverage
from similar insurers as may be necessary to continue the businesses of the
Company and the Subsidiaries at a cost that would not materially and
adversely affect the business, prospects, management, shareholders' or
owners' equity, results of operations of the Company and the Subsidiaries,
taken as a whole.
(ss) All returns, reports or filings required to be made by or in
respect of the Company and the Subsidiaries for tax purposes have been made
and all such returns are up to date, correct and complete in all material
respects, and, to the knowledge of the Company, are not the subject of any
material dispute with the relevant revenue or other appropriate
authorities; the provisions included in the audited accounts as set out in
the Prospectus include appropriate provision required under the generally
accepted accounting principles in Hong Kong ("HK GAAP") for all taxation in
respect of accounting periods ended on or before the accounting reference
date to which such audited accounts relate for which the Company or any of
the Subsidiaries was then or might reasonably be expected thereafter to
become or have become liable; neither the Company nor any of the
Subsidiaries has received notice of any tax deficiency that has been
asserted or assessed against the Company or any of the Subsidiaries which,
if so assessed, would or would be likely to have a Material Adverse Effect,
and all taxes that are required to be paid have been paid by the Company
and the Subsidiaries.
(tt) No material labor dispute, work stoppage, slow down or other
conflict with the employees of the Company or the Subsidiaries exists or,
to the Company's knowledge, is imminent or is threatened. No material labor
dispute, work stoppage, slow down or other conflict involving the sales
agents of the Company or any of the Subsidiaries exists, is imminent or is
threatened.
(uu) The statements set forth in the Prospectus (i) under the
captions "Description of Share Capital" and "Description of American
Depositary Receipts," insofar as they purport to constitute a summary of
(x) the terms of the Shares and the relevant provisions of the Articles of
Association of the Company and (y) the terms of the ADSs and the relevant
provisions of the Deposit Agreement, respectively, and (ii) under the
captions "Regulation," "Shares Eligible for Future Sale," and "Taxation",
insofar as they purport to describe the provision of laws and documents
referred to therein, and under the caption "Underwriting," insofar as they
purport to describe the provisions of this Agreement and the Hong Kong
Underwriting Agreement referred to therein, are accurate, complete and fair
in all material respects.
(vv) Except as disclosed in the Prospectus, there are no contracts,
agreements or understandings between the Company and any person granting
such person the right to require the Company to file a registration
statement under the Securities Act with respect to any securities of the
Company or to require the Company to include such securities with the
Shares and the ADSs registered pursuant to the Registration Statement and
the ADS Registration Statement.
(ww) Under the laws of the PRC, none of the Company, any of the
Subsidiaries nor any of their properties, assets or revenues are entitled
to any right of immunity on the grounds of sovereignty from any legal
action, suit or proceeding, from set-off or counterclaim, from the
jurisdiction of any court, from services of process, from attachment prior
to or in aid of execution of judgment, or from other legal process or
proceeding for the giving of any relief or for the enforcement of any
17
judgment. The irrevocable and unconditional waivers and agreements of the
Company in this Agreement, the Hong Kong Underwriting Agreement and the
Deposit Agreement not to plead or claim any such immunity in any legal
action, suit or proceeding based on this Agreement, the Hong Kong
Underwriting Agreement and the Deposit Agreement are legal, valid and
binding under the laws of the PRC.
(xx) Except as described in the Prospectus, no holder of any of the
Shares or ADSs after the completion of the Global Offering will be subject
to liability in respect of any liability or obligation of the Company by
virtue only of the holding of any such Shares or ADSs. Except as disclosed
in the Prospectus and the Deposit Agreement and except as prohibited by
applicable securities laws in relation to the offering of securities, there
are no limitations on the rights of holders of the Shares or the ADSs to
hold, vote or transfer their securities.
(yy) The Company is not, and after giving effect to the offering and
sale of the ADSs and Shares and the application of the proceeds thereof as
described in the Prospectus will not be, required to registered as an
"investment company" as such term is defined in the United States
Investment Company Act of 1940, as amended (the "Investment Company Act").
(zz) The Company is not a "passive foreign investment company"
("PFIC") within the meaning of section 1297 of the United States Internal
Revenue Code of 1986, as amended, for the year ending December 31, 2003 and
the Company has no plan or intention to conduct its business in a manner
that would reasonably be expected to result in the Company becoming a PFIC
in the future under the current law and regulations.
(aaa) The historical consolidated financial statements and notes
thereto, the summary historical consolidated financial data and notes
thereto, and the selected historical consolidated financial data and notes
thereto of the Company and the Subsidiaries included in the Prospectus were
prepared in accordance with HK GAAP consistently applied throughout each of
the periods involved, and fairly present the consolidated financial
condition and result of operations of the Company and the Subsidiaries as
of the dates and for the periods presented, and the reconciliation thereof
to U.S. GAAP fairly and accurately presents the effects on the selected
items of the Company's accounts of the significant differences between HK
GAAP and U.S. GAAP as of the dates and for the periods presented, and such
reconciliation has been prepared in accordance with U.S. GAAP applied on a
consistent basis and fully complies with the applicable requirements of the
Securities Act; and the unaudited pro forma consolidated financial data and
notes thereto and the summary thereof included in the Prospectus were
prepared in accordance with the applicable requirements of the Securities
Act and the Commission's Regulation S-X, the Company's assumptions provide
a reasonable basis for presenting the significant effects directly
attributable to the events described therein, in the unaudited pro forma
statement of income for the year ended December 31, 2002 and the six-months
ended June 30, 2003 and 2002 and the pro forma balance sheet as of June 30,
2003, the pro forma adjustments give appropriate effect to those
assumptions, and the calculations made to determine such pro forma amounts
reflect the proper application of those adjustments to the historical
financial statement amounts. No other financial statements, schedules or
pro forma financial information of the Company or the Subsidiaries are
required by the Securities Act or the applicable rules and regulations
thereunder to be included in the Prospectus, except such as have been
omitted with the approval of the accounting staff of the Division of
Corporation Finance of the Commission.
18
(bbb) All statistical information (except for such statistical
information which is disclosed in the Prospectus as having come from a
source other than the Company, which source the Company confirms it
believes to be reliable), including numbers of insurance policies and
annuity contracts, exclusive sales agents and distribution outlets,
included in the Prospectus has been derived from the records of the Company
and the Subsidiaries using systems and procedures which incorporate
adequate safeguards to ensure that the information, in all material
respects, is accurate and complete and presents fairly the information
shown therein.
(ccc) PricewaterhouseCoopers, who have audited the financial
statements of the Company and the Subsidiaries and delivered their report
with respect to the audited consolidated financial statements and notes
thereto included in the Prospectus, is an independent public accountant
within the meaning of the Securities Act and the Exchange Act and the
applicable published rules and regulations of the Commission thereunder;
each of the Company and the Subsidiaries has devised and maintains a system
of internal accounting controls sufficient to provide reasonable assurance
that (i) transactions are executed in accordance with management's general
or specific authorizations; (ii) transactions are recorded as necessary to
permit preparation of financial statements and notes thereto in conformity
with the HK GAAP, with a reconciliation to the U.S. GAAP, and to maintain
accountability for assets; (iii) access to assets is permitted only in
accordance with management's general or specific authorization; (iv) the
recorded accountability for assets is compared with existing assets at
reasonable intervals and appropriate actions taken with respect to any
differences and (v) each of the Company and the Subsidiaries has made and
kept books, records and accounts which, in reasonable detail, accurately
and fairly reflect the transactions and dispositions of assets of such
entity and provide a sufficient basis for the preparation of consolidated
financial statements and notes thereto in accordance with the HK GAAP, with
a reconciliation thereof to the U.S. GAAP; and the management information
and accounting control system of the Company and the Subsidiaries has been
in operation for at least six months during which no material difficulty
with regard to any of the matters referred to in (i) through (v) above has
been experienced.
(ddd) The prospective and unaudited information included in the
Prospectus under the caption "Prospective Financial Information" (the
"Prospective Financial Information") (i) was made by the Company after due
and proper consideration and represents reasonable and fair expectations
honestly held based on facts known to the Company at the date of the
Prospectus and the assumptions stated in the Prospectus, and (ii) has been
properly compiled based on the assumptions described therein. The
assumptions and methods used in the preparation of the Prospective
Financial Information (A) are all those that the Company believes are
significant in estimating the total operating revenue and the net income of
the Company for the year ending December 31, 2003, and (B) reflect, for the
year ending December 31, 2003, the Company's reasonable estimate of the
events, contingencies and circumstances described therein; and the
Prospective Financial Information presents the Company's reasonable
estimate, as of the date hereof, of the net income of the Company and the
net income per share of the Company for the year ending December 31, 2003.
The unaudited condensed consolidated financial statements of the Company as
of and for the three and nine months ended September 30, 2002 and 2003 and
previously furnished to the Underwriters have been prepared in accordance
with HK GAAP and on a basis consistent with that of the audited financial
statements of the Company included in the Prospectus, and the Prospectus
fairly and accurately describes the material ways in which the methods used
in the preparation of such financial statements differ from the methods
used in the preparation of the Company's audited financial statements
contained in the Prospectus.
19
(eee) The calculations of embedded value as of June 30, 2003 included
in Annex A of the prospectus have been properly effected based on the
assumptions and estimates described in such Annex A. The estimates and
assumption (or, where a range of assumptions is used, the range of
assumptions chosen) upon which such calculations are based represent
reasonable and fair expectations honestly held (or, where a range of
assumptions is used, represent a reasonable range of assumptions in the
circumstances) based on facts known to the Company at the date of the
Prospectus.
(fff) The Prospectus fairly and accurately describes (i) all material
trends, demands, commitments and events known to the Company, and
uncertainties, and the potential effects thereof, that the Company believes
would materially affect liquidity and are reasonably likely to occur; and
(ii) all off-balance sheet transactions, arrangements, and obligations,
that are reasonably likely to have a material effect on the liquidity of
the Company and the Subsidiaries, taken as a whole, or the availability
thereof or the requirements of the Company and the Subsidiaries for capital
resources. [The section entitled "Operating and Financial Review and
Prospects - Critical Accounting Policies" in the Prospectus fairly and
accurately describes, in all material respects, the accounting policies
which the Company believes are the most important in the portrayal of the
Company's financial condition and results of operations and which require
management's most difficult, subjective or complex judgments;]
(ggg) None of the Company, the Subsidiaries or any of the businesses
now run by the Company or any of the Subsidiaries does any business with
the Governments of Burma (Myanmar), Cuba, Iran, Libya or Sudan or any
agent, "Specially Designated National" or "Blocked Person" (identified in
31 CFR, Subtitle B, Chapter V, Appendix 1) thereof or with any other person
subject to sanctions under any of the foreign assets control regulations of
the United States Treasury Department (31 CFR, Subtitle B, Chapter V, as
amended) or any enabling legislation or executive order relating thereto,
or any person or entity in those countries or with those persons, or
perform contracts in support of projects in or for the benefit of those
countries or those persons.
(hhh) Except as disclosed in the Prospectus, there are no contracts,
agreements or understandings between the Company and any person or entity
that would give rise to any claim against the Company or any Underwriter
for brokerage commissions, finder's fees or other payments in connection
with the Global Offering.
(iii) No Subsidiary of the Company is currently prohibited, directly
or indirectly, from (i) repaying to the Company any loans or advances to
such Subsidiary from the Company; or (ii) paying any dividends or other
distributions to the Company declared and payable on the Company's direct
or indirect equity interest in such Subsidiary.
(jjj) In respect of the connected transactions (as defined under the
Hong Kong Listing Rules) with CLIC (the "Connected Transactions"):
(i) The statements contained in the Prospectus relating to
the Connected Transactions are true, accurate and complete in all
material respects and there are no other facts known or which could on
reasonable enquiry have been known to the Company's Directors, the
omission of which would make any such statements misleading in all
material respects, and there are no other Connected Transactions which
have not been disclosed in the Prospectus;
20
(ii) All information (including but not limited to
historical figures) and documentation provided by the Company to the
Global Coordinators, the sponsors of the Hong Kong Public Offering
(the "Sponsors") and the Hong Kong Underwriters are true, accurate and
complete in all material respects and there is no other information or
documents which have not been provided the result of which would make
the information and documents so received misleading in all material
respects;
(iii) The transactions referred to in the section entitled
"Relationship with CLIC" in the Prospectus have been entered into (and
the Company knows of no reason why that will not be carried out), on
normal commercial terms and are fair and reasonable insofar as the
shareholders of the Company are concerned and the Directors, in coming
to their views have made, as they consider, due and proper inquiries
and investigations of such transactions;
(iv) Each of the Company and the Selling Shareholder has at
all relevant times complied with and will continue to comply with the
terms of the Connected Transactions disclosed in the Prospectus for so
long as the agreement relating thereto is in effect, and shall inform
the Global Coordinators and the Sponsors promptly should there be any
breach of any such terms either before or after the listing of the
Shares on the HKSE; and
(v) Each of the Connected Transactions Agreements
disclosed in the Prospectus constitutes a legal, valid and binding
agreement, enforceable in accordance with its terms by the relevant
member of the China Life Group against the other party subject, as to
enforceability, to bankruptcy, insolvency, reorganization and similar
laws of general applicability relating to or affecting creditor rights
and to general equitable principles.
(kkk) The Company has filed with the Director-General of Kanto Local
Finance Bureau of the Ministry of Finance of Japan (the "KLFB") a
securities registration statement with respect to the Japanese POWL and
amendments to such securities registration statement pursuant to the
Securities and Exchange Law of Japan; a further amendment to such
securities registration statement in the form heretofore delivered to the
Global Coordinators is proposed to be filed by the Company with the KLFB
promptly after the execution of this Agreement (such securities
registration statement and all such amendments, collectively, the "Japanese
Securities Registration Statement"); the registration made under the
Japanese Securities Registration Statement will become effective on the
date immediately subsequent to the date hereof; and the Japanese Securities
Registration Statement, on the date hereof, (i) conforms in all material
respects to the requirements of Securities and Exchange Law of Japan and
the cabinet orders and ministerial ordinances and other rules and
regulations thereunder (the "Japanese Rules and Regulations"), and (ii)
does not contain any untrue statement of a material fact or omit to state
any material fact required to be stated therein or necessary to make the
statements therein not misleading.
(lll) The Company has prepared a preliminary prospectus with respect
to the Japanese POWL (the "Japanese Preliminary Prospectus") and intends to
prepare a supplement or supplements to the Japanese Preliminary Prospectus
which together with the Japanese Preliminary Prospectus will form a final
prospectus (the "Japanese Final Prospectus"); and the Japanese Preliminary
Prospectus at the time of issue thereof conformed, and the Japanese Final
Prospectus at the time of issue thereof will conform, in all material
respects to the requirements of the Securities and
21
Exchange Law of Japan and the Japanese Rules and Regulations, and the
Japanese Preliminary Prospectus at the time of issue thereof did not, and
the Japanese Final Prospectus at the time of issue thereof will not,
contain any untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary to make the
statements therein not misleading.
(mmm) Since the respective dates as of which information is given in
the Japanese Securities Registration Statement and the Japanese Final
Prospectus, there has not been any material adverse change in the business,
prospects, management, shareholders' or owners' equity, results of
operations or financial condition of the Company and the Subsidiaries,
taken as a whole.
Any certificate signed by any officer of the Company and delivered to the
Global Coordinators or the U.S. Representatives and the International
Representatives or counsel for the Underwriters in connection with the Global
Offering shall constitute a representation and warranty hereunder by the
Company, as to matters covered thereby, to each Underwriter.
2. Representations and Warranties of the Selling Shareholder. The Selling
Shareholder represents and warrants to, and agrees with, each of the
Underwriters that:
(a) It is a state-owned enterprise duly established in the PRC.
(b) Each of this Agreement, the Restructuring Agreements to which
the Selling Shareholder is a party, the Hong Kong Underwriting Agreement
and the Corporate Investor Agreements executed by the Selling Shareholder
has been duly authorized, executed and delivered by the Selling
Shareholder, and constitutes a legal, valid and binding agreement of the
Selling Shareholder, enforceable in accordance with its terms, subject as
to enforceability to bankruptcy, insolvency, reorganization, moratorium and
similar laws of general applicability relating to or affecting creditors'
rights and to general equity principles.
(c) All Approvals of or with any Governmental Agency having
jurisdiction over the Selling Shareholder or any of its properties required
for the deposit of the Shares being deposited with the Depositary against
issuance of the ADRs evidencing the ADSs to be delivered at each Closing
Time by the Selling Shareholder, for the sale and delivery of the Shares
and ADSs to be sold by the Selling Shareholder hereunder, for the
authorization, execution and delivery by the Selling Shareholder of this
Agreement, the Hong Kong Underwriting Agreement, the Corporate Investor
Agreements and the Restructuring Documents, and for the performance by the
Selling Shareholder of its obligations contemplated thereunder have been
obtained or made and are in full force and effect, except that no such
representation or warranty is made with respect to Approvals as may be
required under the United States federal securities laws, the "blue sky"
laws of any State of the United States or the securities laws of any
jurisdiction outside the United States insofar as such laws apply to the
distribution of the Shares and the ADSs by or for the account of the
Underwriters; and the Selling Shareholder has full right, power and
authority to enter into this Agreement, the Hong Kong Underwriting
Agreement and the Corporate Investor Agreements and to sell, assign,
transfer and deliver the Shares to be sold by the Selling Shareholder
hereunder, in each case free and clear of all liens, security interests,
charges, encumbrances, equities or claims of any kind.
(d) The execution and delivery by the Selling Shareholder of, and
the performance by the Selling Shareholder of its obligations under, this
Agreement, the Hong Kong Underwriting Agreement, the Corporate Investor
Agreements, the Restructuring Documents and the consummation of the
transactions contemplated
22
hereunder and thereunder, the sale of the Shares or ADSs to be sold by the
Selling Shareholder hereunder, and the deposit of the Shares with the
Depositary against issuance of the ADRs evidencing the ADSs to be delivered
at each Closing Time by the Selling Shareholder, did not, and will not
contravene any provision of (i) the Articles of Association, business
license, the insurance business permit or other constituent documents of
the Selling Shareholder, (ii) any law or statute or any rule, regulation,
judgment, order, decree or Approval of any Governmental Agency having
jurisdiction over the Selling Shareholder, (iii) any agreement or other
instrument binding upon the Selling Shareholder, or (iv) any judgment,
order or decree of any Governmental Agency having jurisdiction over the
Selling Shareholder, except, in the case of (ii), (iii) and (iv), as would
not (x) individually or in the aggregate, have a Material Adverse Effect,
or (y) affect the validity of, or have any adverse effect on, the issuance
and sale of the Shares and ADSs or the other transactions contemplated
hereunder.
(e) The Selling Shareholder has, and immediately prior to each
Closing Time will have, good and valid title to the Shares and the ADSs to
be sold by the Selling Shareholder hereunder and under the Hong Kong
Underwriting Agreement and the Corporate Investor Agreements, free and
clear of all liens, security interests, charges, encumbrances, equities or
claims of any kind; and, upon delivery of the Shares and the ADSs and
payment therefor pursuant hereto and thereto, good and valid title to such
Shares or ADSs, free and clear of all liens, security interests, charges,
encumbrances, equities or claims of any kind, will pass to the several
Underwriters and the Hong Kong Underwriters, as applicable, and (to the
extent described in the Prospectus) the initial purchasers thereof.
(f) Except as described in the Prospectus, neither the Selling
Shareholder nor any of its subsidiaries has taken, or will take, directly
or indirectly, any action which is designed to or which has constituted or
which might reasonably be expected to cause or result in under the Exchange
Act, [the Securities and Futures Ordinance of Hong Kong, the rules and
regulations of the Hong Kong Stock Exchange Limited or the Listing Rules],
in stabilization or manipulation of the price of any security of the
Company to facilitate the sale or resale of the Shares or the ADSs.
(g) Under the laws of the PRC, none of the Selling Shareholder and
its subsidiaries nor any of their properties, assets or revenues are
entitled to any right of immunity on the grounds of sovereignty from any
legal action, suit or proceeding, from set-off or counterclaim, from the
jurisdiction of any court, from services of process, from attachment prior
to or in aid of execution of judgment, or from other legal process or
proceeding for the giving of any relief or for the enforcement of any
judgment. The irrevocable and unconditional waivers and agreements of the
Selling Shareholder in this Agreement not to plead or claim any such
immunity in any legal action, suit or proceeding based on this Agreement
are legal, valid and binding under the laws of the PRC.
(h) Except as disclosed in the Prospectus, the Shares delivered at
each Closing Time by the Selling Shareholder will be freely transferable by
the Selling Shareholder; and, except as described in the Prospectus, there
are no restrictions on subsequent transfers of the shares under the laws of
the PRC, Hong Kong or the United States.
(i) Except as disclosed in the Prospectus, there are no contracts,
agreements or understandings between the Selling Shareholder and any person
that would give rise to a valid claim against the Selling Shareholder or
any Underwriter
23
for a brokerage commission, finder's fee or other like payment in
connection with the Global Offering.
Any certificate signed by any officer of the Selling Shareholder and
delivered to the Global Coordinators or the U.S. Representatives and the
International Representatives or counsel for the Underwriters in connection with
the Global Offering shall constitute a representation and warranty hereunder by
the Selling Shareholder, as to matters covered thereby, to each Underwriter.
3. Agreements to Sell and Purchase.
(a) (i) Each of the Company and the Selling Shareholder, severally
and not jointly, hereby agrees to sell to the several Underwriters, and
each Underwriter, upon the basis of the representations and warranties
herein contained, but subject to the conditions hereinafter stated, agrees,
severally and not jointly, to purchase or procure the purchase from the
Company and the Selling Shareholder, the respective numbers of Firm ADSs
set forth in Schedules I and II hereto opposite its name at U.S.$. per ADS
(the "ADS Purchase Price"). The Underwriters may, in their discretion,
require that Shares be delivered in lieu of such Firm ADSs. The purchase
price per Share shall be Hong Kong $. (the "Share Purchase Price," and with
the ADS Purchase Price, the "Purchase Price"). [Any Hong Kong Securities
and Futures Commission (the "SFC") transaction levy, investor compensation
levy and HKSE trading fee payable on Shares underlying the ADSs or Shares
delivered in lieu of ADSs pursuant to Section 3(c) below in the U.S.
Offering and the International Offering (for the avoidance of doubt,
including in the circumstances set forth in Section 3(e) below) shall be
paid by the Company and the Selling Shareholder in respect of the ADSs or
Shares sold by them, and the Company and the Selling Shareholder hereby
authorize the Underwriters to deduct for each Share sold by them (including
Shares represented by the ADSs) an amount equal to such SFC transaction
levy, investor compensation levy and HKSE trading fee (equal to 0.005%,
0.002% and 0.005%, respectively, of the price to be paid by public
investors in the Hong Kong Public Offering per H Share) from the proceeds
of the U.S. Offering and International Offering in respect of the ADSs or
Shares sold by them, and the Underwriters shall pay such amount to the
HKSE.]
(ii) Notwithstanding the foregoing provisions of this Section
3(a), it is understood that . ADSs, representing . H Shares intended to be
sold to the Corporate Investors identified in Schedule III are being
severally underwritten by the International Underwriters in the form of
Shares or ADSs as part of the International Offering at the Share Purchase
Price or the ADS Purchase Price.
(b) On the basis of the representations and warranties contained in
this Agreement, and subject to its terms and conditions, the Company and
the Selling Shareholder hereby grant an option to the U.S. Underwriters and
International Underwriters to purchase, severally and not jointly, up to .
Optional ADSs at the ADS Purchase Price. The Global Coordinators, may, in
their discretion, require that Shares be delivered in lieu of such Optional
ADSs, and the purchase price per Share shall be the Share Purchase Price.
The option hereby granted may be exercised in whole or from time to time in
part solely for the purpose of covering over-allotments made in connection
with the offering of the Firm ADSs. If the Global Coordinators, on behalf
of the Underwriters, elect to exercise such option, the Global Coordinators
shall so notify the Company and the Selling Shareholder in writing from
time to time not later than 30 days after the date on which dealing of ADSs
commences on the NYSE or dealing of H Shares commences on the HKSE,
whichever is earlier, which notice shall specify the number of Optional
ADSs as to which the several
24
Underwriters are exercising the option and the date on which such Optional
ADSs are to be purchased. Such date of purchase of Optional ADSs may be the
same as the First Closing Time (as defined below) but in no event earlier
than the First Closing Time nor later than [ten] business days after the
date of such notice. The maximum number of Optional ADSs to be sold by the
Company is . and the maximum number of Optional ADSs to be sold by the
Selling Shareholder is .. In the event the Underwriters exercise less than
their full over-allotment option, the respective number of Optional ADSs to
be sold by the Company and the Selling Shareholder shall be, as nearly as
practicable to eliminate fractional shares, in the same proportion to the
total number of Optional Shares being sold as the respective maximum number
of Optional ADSs to be sold by the Company and the Selling Shareholder
bears to the total of such maximum numbers. If any Optional ADSs are to be
purchased, each Underwriter agrees, severally and not jointly, to purchase
the number of such Optional ADSs (subject to such adjustments to eliminate
fractional shares as the Global Coordinators may determine) that bears the
same proportion to the total number of Optional ADSs to be purchased as the
number of Firm ADSs set forth in Schedules I or II hereto, respectively,
opposite the name of such Underwriter bears to the total number of Firm
ADSs. The Global Coordinators in their sole discretion shall have the
authority (i) to exercise the over-allotment option on behalf of the
Underwriters and (ii) to allocate the Optional ADSs among the U.S. Offering
and the International Offering to cover any over-allotments.
(c) As noted in Sections 3(a) and 3(b) above, the Underwriters or,
in the case of Optional ADSs, the Global Coordinators, may, in their
discretion, require that Shares be delivered in lieu of Firm ADSs or
Optional ADSs at the Share Purchase Price which is expressed in Hong Kong
dollars. The parties hereto agree and acknowledge that the price for each H
Share to be offered in the Hong Kong Public Offering to be paid by public
investors in Hong Kong, will, together with a 1% brokerage fee, a 0.005%
SFC transaction levy, a 0.002% investor compensation levy and a 0.005% HKSE
trading fee and subject to any necessary rounding, be the same as the price
per Share in the U.S. Offering and International Offering.
(d) The Company agrees and acknowledges that (i) pursuant to the
Intersyndicate Agreement, the Underwriters and the Hong Kong Underwriters
have agreed that if the number of Shares validly applied for in the Hong
Kong Public Offering exceeds (1) 15 times or more but less than 50 times,
(2) 50 times or more but less than 100 times or (3) 100 times or more than
100 times of the aggregate number of Shares initially available in such
offering, then an additional . Shares, . Shares and . Shares, respectively,
shall be reallocated to the Hong Kong Public Offering from the U.S.
Offering and/or the International Offering; provided, however, that the
ADSs or Shares to be sold to Corporate Investors shall not be subject to
reallocation to the Hong Kong Public Offering thereunder; Shares
reallocated to the Hong Kong Public Offering in each such case are
hereafter referred to as the "Reallocated Shares," and that in the event of
a reallocation, the number of ADSs offered in the U.S. Offering and/or
International Offering will be correspondingly reduced in such manner as
the Global Coordinators, in their sole discretion, deem appropriate; and
(ii) Reallocated Shares shall be delivered to the investors in the Hong
Kong Public Offering in the same manner and at the same time as Hong Kong
Shares originally included in the Hong Kong Public Offering (and shall be
subject to such pro-ration and allocation mechanisms as are set forth in
the Hong Kong Underwriting Agreement).
25
In consideration for the underwriting obligations expressed herein, an
amount equal to the aggregate underwriting discounts and commissions on any
Reallocated Shares reallocated from the U.S. Offering and/or International
Offering, as the case may be (calculated in accordance with the per Share
or per ADS underwriting discounts and commissions set forth in Section 3(a)
of this Agreement), shall be withheld by the Underwriters from the amount
otherwise payable hereunder to the Company in respect of the ADSs and the
Shares as if the relevant ADSs or Shares had been sold to the Underwriters
at the relevant Purchase Price hereunder. The Global Coordinators shall be
entitled to the selling concession portion of the applicable underwriting
discounts and commissions on such Reallocated Shares and, notwithstanding
any provision herein to the contrary, the Underwriters shall have no other
payment obligation to the Company or the Selling Shareholder with respect
to the Reallocated Shares.
(e) The Company acknowledges and agrees that if an
Under-Subscription (as defined in the Hong Kong Underwriting Agreement)
shall occur, the Global Coordinators may reallocate all or some of the Hong
Kong Shares to one or more of the Underwriters in such amounts as the
Global Coordinators and each such Underwriter may agree, whereupon such
Underwriter will become obligated to pay the Share Purchase Price payable
hereunder for such Hong Kong Shares to the Company and the Selling
Shareholder, as the case may be. Underwriting discounts and commissions
with respect to such reallocated Hong Kong Shares (calculated in accordance
with the per Share or per ADS underwriting discounts and commissions set
forth in Section 3(a) of this Agreement) shall be allocated among the
relevant Underwriters pursuant to the Intersyndicate Agreement.
(f) The Company acknowledges and agrees that the Underwriters may
satisfy their obligations to purchase any or all of the ADSs or Shares
hereunder by procuring on behalf of the Company and the Selling
Shareholders purchasers for the ADSs and/or Shares, respectively; provided
that such obligations will not be satisfied until payment has been made by
the purchasers against delivery of the ADSs and/or Shares by the Company or
the Selling Shareholder, as the case may be.
4. Terms of Public Offering. The Company and the Selling Shareholder are
advised by the Global Coordinators that the Underwriters propose to make an
offering of their respective portions of the ADSs as soon after the Registration
Statement, the ADS Registration Statement and this Agreement, and the
registration made under the Japanese Securities Registration Statement, have
become effective as in the judgment of the Global Coordinators is advisable,
upon the terms set forth in the Prospectus.
5. Payment and Delivery.
(a) With respect to all or a portion of the ADSs to be purchased and
sold hereunder at each Closing Time, the Global Coordinators, on behalf of
the several Underwriters, may elect to have Shares delivered and paid for
hereunder in lieu of, and in satisfaction of, the obligations of the
Company and the Selling Shareholder to sell to the several Underwriters,
and the several Underwriters' obligations to purchase, ADSs. Notice of such
election shall be given by the Global Coordinators to the Company and the
Selling Shareholder at least [forty-eight (48)] hours prior to such Closing
Time (as defined below) (the "Notification Time") with the final number of
Shares to be confirmed to the Company and the Selling Shareholder at least
[twenty-four (24)] hours prior to such Closing Time. The number of Shares
to be
26
purchased as a result of the making of such election shall be adjusted by
the Global Coordinators so as to eliminate any fractional ADSs.
(b) If an election has been made in accordance with Section 5(a)
above, the Shares to be purchased by each Underwriter hereunder, in
definitive form, and in such authorized denominations and registered in
such names as the Global Coordinators may request upon notice to the
Company and the Selling Shareholder prior to the Notification Time, shall
be delivered by or on behalf of the Company and the Selling Shareholder to
the Global Coordinators, through the facilities of Hong Kong Securities
Clearing Company Limited ("HKSCC"), for the account of such Underwriter or
as such Underwriter, or the Global Coordinators on its behalf, may direct,
against payment by or on behalf of such Underwriter of the Purchase Price
therefor by wire transfer to, or, to the extent HKSCC procedures permit,
official bank check or checks payable to the order of, the Company or the
Selling Shareholder, as the case may be, in Hong Kong dollars or U.S.
dollars, at the discretion of the Global Coordinators, in immediately
available funds at each Closing Time specified in Section 5(d) below. The
Company and the Selling Shareholder will cause the certificates
representing the Shares to be made available for checking at least
[twenty-four (24)] hours prior to each Closing Time with respect thereto at
the office of HKSCC. Delivery by the Company and the Selling Shareholder of
the Shares will be made [by transfer in the Company's special registry in
the PRC and] by book-entry transfer in the Company's registry at HKSCC to
an account or accounts specified by the Global Coordinators, in such
respective portions as the Global Coordinators may designate, upon notice
given to the Company and the Selling Shareholder at or prior to the
Notification Time.
(c) The ADSs to be purchased by each Underwriter hereunder and the
ADRs evidencing such ADSs, in definitive form, and in such authorized
denominations and registered in such names as the Global Coordinators may
request upon notice to the Company and the Selling Shareholder prior to the
Notification Time, shall be delivered by or on behalf of the Company or the
Selling Shareholder, as the case may be, to the Global Coordinators through
the facilities of The Depository Trust Company ("DTC"), for the account of
such Underwriter or as such Underwriter, or the Global Coordinators on its
behalf, may direct, against payment by or on behalf of such Underwriter of
the Purchase Price therefor by wire transfer through the Federal Wire
System in New York of payment for such ADSs in United States dollars, in
immediately available funds, to the Company's account or the Selling
Shareholder's account, as the case may be (which shall be designated to the
Global Coordinators by the Company and the Selling Shareholder prior to the
Notification Time), at each Closing Time specified in Section 5(d) below.
The Company and the Selling Shareholder will cause the certificates
representing the ADSs to be made available for checking at least
[twenty-four (24)] hours prior to each Closing Time with respect thereto at
the office of DTC or its designated custodian (the "Designated Office").
The Shares underlying the ADSs to be delivered hereunder shall
be delivered through the facilities of the HKSCC for the account of ., Hong
Kong (the "Custodian"), as custodian for the Depositary against delivery of
a copy of a letter confirming that the Global Coordinators have given
irrevocable instructions to its correspondent bank in New York to make the
wire transfer of payment for the ADSs at the Closing Time specified in
Sections 5(d) below.
(d) The time and date of the deliveries and payments described in
Section 5(b) and (c) above shall be (i) with respect to the Shares
delivered pursuant to Section 5(b), 9:00 a.m., Hong Kong time, (ii) with
respect to the Shares underlying
27
the ADSs (but not payment for the ADSs which is dealt with in sub-paragraph
(iii) below) to be delivered under Section 5(c), 9:00 a.m., Hong Kong time,
and (iii) in the case of the ADSs delivered pursuant to Section 5(c), 9:00
a.m., New York City time, in each case on ., 2003 or such other time and
date, as the Global Coordinators, the Company and the Selling Shareholder
may agree upon in writing. The time and date of delivery and payment with
respect to the Optional ADSs, shall be 9:00 a.m., Hong Kong time, in the
case of Optional ADSs delivered in the form of Shares, and 9:00 a.m., New
York City time, in the case of Optional ADSs, in each case on the date
specified by the Global Coordinators in the written notice given by the
Global Coordinators of the election to purchase such Optional ADSs, or such
other time and date, as the Global Coordinators, the Company and the
Selling Shareholder may agree upon in writing. Such times and dates for
deliveries of, and payments for, the Firm ADSs, whether in the form of
Shares or ADSs is herein called the "First Closing Time," such times and
dates for delivery of, and payment for, the Optional ADSs, whether in the
form of Shares or ADSs, if not the First Closing Time, is herein called the
"Optional Closing Time," and each such time and date for delivery and
payment is herein called a "Closing Time".
It is understood and agreed by the parties hereto that no
delivery or transfer of the ADSs or Shares to be purchased and sold
hereunder at a Closing Time shall be effective until and unless payment
therefor has been made pursuant hereto and each of DTC, HKSCC and the
Company and the Selling Shareholder shall have furnished or caused to be
furnished to the Global Coordinators, on behalf of the Underwriters, at
such Closing Time certificates and other evidence reasonably satisfactory
to the Global Coordinators of the execution in favor of the Underwriters of
the transfer of the Shares and ADSs, whether by delivery in DTC, HKSCC or
otherwise.
At each Closing Time, to the extent any payments described
in Section 7(n), payable to the Underwriters at such Closing Time are not
deducted from each payment check or wire transfer, the Company and the
Selling Shareholder shall pay, or cause to be paid, such amounts to the
Global Coordinators on behalf of the Underwriters by wire transfer or
official bank check(s) in U.S. dollars or Hong Kong dollars, at the
discretion of the Global Coordinators, in immediately available funds to
the account or accounts specified by the Global Coordinators.
(e) The documents to be delivered at each Closing Time by or on
behalf of the parties hereto pursuant to this Section 5, including the
cross-receipt for the Shares and ADSs, any additional documents requested
by the Underwriters and the copies of irrevocable wire transfer
instructions by the Global Coordinators to their corresponding banks of
payment for Share and ADS, shall be delivered at the offices of Skadden,
Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP ("Skadden, Arps") at ▇▇/▇ ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇ (the "Closing Location"), and the
Shares and ADSs will be delivered as specified in Sections 5 (b) and 5(c)
above, all at such Closing Time. A meeting will be held at the Closing
Location at [2:00 p.m.], Hong Kong time, on the Business Day immediately
preceding such Closing Time, at which meeting the final drafts of the
documents to be delivered pursuant to the preceding sentence will be
available for review by the parties hereto.
6. Conditions to the Underwriters' Obligations. The several obligations
of the Underwriters hereunder to purchase the ADSs or Shares to be delivered at
any Closing Time, shall be subject to the condition that all representations and
warranties and other statements of the Company and of the Selling Shareholder
made herein are, at and as of such Closing Time, true and correct, the condition
that the Company and the Selling Shareholder shall have performed all of their
respective obligations hereunder theretofore to be performed, and the
28
following further conditions; provided, however, that with respect to the First
Time of Delivery, the latest time for the Underwriters hereunder to exercise
their discretion with respect to the conditions set forth in this Section 6
shall be prior to the first delivery of ADSs or Shares by the Company and the
Selling Shareholder at the First Time of Delivery (as defined below); and
provided further that all agreements and documents to be delivered at the First
Time of Delivery pursuant to this Agreement shall be deemed to be held in escrow
at the Closing Location at such time:
(a) The U.S. Prospectus shall have been filed with the Commission
pursuant to Rule 424(b) within the applicable time period prescribed for
such filing by the rules and regulations under the Act; if the Company has
elected to rely upon Rule 462(b), the Rule 462 Registration Statement shall
have become effective by 10:00 P.M., Washington, D.C. Time, on the date of
this Agreement; no stop order suspending the effectiveness of the
Registration Statement or any part thereof shall have been issued and no
proceeding for that purpose shall have been initiated or threatened by the
Commission; and all requests for additional information on the part of the
Commission, if any, shall have been complied with to the Global
Coordinators' reasonable satisfaction;
(b) (i) Neither the Company nor any of the Subsidiaries shall have
sustained since the date of the latest audited financial statements
included in the Prospectus any loss or interference with its business from
fire, explosion, flood or other calamity, whether or not covered by
insurance, or from any labor dispute or court or governmental action, order
or decree, otherwise than as set forth or contemplated in the Prospectus,
and (ii) subsequent to the execution and delivery of this Agreement, there
shall not have occurred any change, or any development involving a
prospective change, in the business, prospects, management, shareholders'
or owners' equity, results of operations or financial condition, of the
Company and the Subsidiaries, taken as a whole from that set forth in the
Registration Statement and the Prospectus (exclusive of any amendments or
supplements thereto subsequent to the date of this Agreement), the effect
of which, in any such case described in clause (i) or (ii), in the judgment
of the Global Coordinators, is material and adverse and that makes it, in
the judgment of the Global Coordinators, impracticable or inadvisable to
market and sell the Shares or the ADSs on the terms and in the manner
contemplated in the Prospectus.
(c) Subsequent to the execution and delivery of this Agreement and
prior to any Closing Time, there shall not have occurred any of the
following events: (i) trading generally shall have been suspended or
limited on or by, as the case may be, any of the NYSE, the Nasdaq National
Market, the HKSE or the Tokyo Stock Exchange; (ii) trading of any
securities of the Company shall have been suspended or limited on any such
exchange or in any over-the-counter market, or minimum or maximum prices
for trading shall have been fixed, or maximum ranges for prices have been
required by any such exchange or by any such system or by order of the
Commission, the NASD or any other government authority; (iii) a material
disruption in commercial banking or securities settlement, payment or
clearance services in the United States, Hong Kong, Japan or the European
Union which makes it, in the judgment of the Global Coordinators,
impracticable or inadvisable to market or sell the ADSs or the Shares, as
the case may be, on the terms and in the manner contemplated in the
Prospectus, (iv) a general moratorium on commercial banking activities in
New York, Hong Kong, the PRC or Japan declared by the relevant authorities;
(v) the outbreak or escalation of hostilities involving the United States,
Hong Kong or the PRC or the declaration by the United States, Hong Kong or
the PRC of a national emergency or war; or (vi) the occurrence of any
material adverse change in the existing financial, political or economic
conditions in the United States,
29
Hong Kong, the PRC or elsewhere which, in the judgment of the Global
Coordinators, impracticable or inadvisable to market or sell the ADSs or
the Shares, as the case may be, on the terms and in the manner contemplated
in the Prospectus.
(d) The Underwriters shall have received a certificate, dated the
date of such Closing Time and signed by the Chairman or the President and
the principal accounting officer of each of the Company and the Selling
Shareholder, satisfactory to the Global Coordinators, to the effect set
forth in Sections 6(a) and 6(b) above and to the effect that the
representations and warranties of the Company, or the Selling Shareholder,
as the case may be, contained in this Agreement are true and correct as at
such Closing Time and that the Company, or the Selling Shareholder, as the
case may be, has complied with all of the agreements and satisfied all of
the conditions on its part to be performed or satisfied hereunder on or
before such Closing Time. Each of the Company and the Selling Shareholder
shall have furnished or caused to be furnished to the Representatives and
the Global Coordinators at such Closing Time certificates of its officers,
satisfactory to the Representatives and the Global Coordinators, as to such
other matters as the Representatives and the Global Coordinators may
reasonably request.
(e) The Underwriters shall have received an opinion of Debevoise &
▇▇▇▇▇▇▇▇ ("Debevoise"), United States counsel to the Company and the
Selling Shareholder, addressed to the Underwriters and dated the date of
such Closing Time, in form and substance satisfactory to the
Representatives and the Global Coordinators, in respect of such matters as
may be reasonably requested by the Representatives and the Global
Coordinators, to the effect that:
(i) Assuming that this Agreement has been duly authorized,
executed and delivered by the Company and the Selling Shareholder
under PRC law, this Agreement has been duly executed and delivered by
each of the Company and the Selling Shareholder.
(ii) Assuming that the Deposit Agreement has been duly
authorized, executed and delivered by the Company under PRC law, the
Deposit Agreement has been duly executed and delivered by the Company
and, assuming the due authorization, execution and delivery of the
Deposit Agreement by the Depositary and that each of the Depositary
and the Company has full power, authority and legal right to enter
into and perform its obligations thereunder, the Deposit Agreement
constitutes a valid and binding agreement of the Company enforceable
in accordance with its terms, subject as to enforceability to
bankruptcy, insolvency, fraudulent transfer, reorganization,
moratorium and similar laws of general applicability relating to or
affecting creditors' rights generally and to general principles of
equity, and except that no opinion is given with respect to Section
16 thereunder.
(iii) Upon due issuance by the Depositary of ADRs evidencing
the ADSs delivered at such Closing Time against the deposit of the
underlying Shares to be deposited by the Company and the Selling
Shareholder in accordance with the provisions of the Deposit Agreement
and this Agreement, as the case may be, such ADRs evidencing the ADSs
will be duly and validly issued and persons in whose names such ADRs
are registered will be entitled to the rights specified therein and in
the Deposit Agreement.
(iv) The statements set forth in the Registration Statement
and the Prospectus under the caption "Taxation - United States of
America", insofar as such statements purport to summarize certain
United States Federal tax
30
considerations relating to the purchase, ownership or disposition of
the Shares or ADSs that pursuant to the Global Offering, constitute,
in all material respects, a fair and accurate summary of such
considerations under current law.
(v) The statements set forth in the Registration Statement
and the Prospectus under the caption "Description of American
Depositary Receipts", insofar as such statement constitute a summary
of the provisions of the ADRs and the Deposit Agreement, constitute
in all material respects, a fair and accurate summary of such
provisions.
(vi) The statements set forth in the Registration Statement
and the Prospectus under the caption "Underwriters", insofar as such
statements constitute a summary of the provisions of this Agreement,
constitute in all material respects, a fair and accurate summary of
such provisions.
(vii) All regulatory consents, authorizations, approvals and
filings required to be obtained or made by the Company and the Selling
Shareholder (as the case may be) under the federal laws of the United
States and the laws of the State of New York, (A) as to the Company,
for the issuance of the Shares and the ADRs evidencing the ADSs, and
(B) as to both the Company and the Selling Shareholder, the sale and
delivery of the Shares or the ADSs by the Company and the Selling
Shareholder to the Underwriters and the deposit by the Company with
the Depositary of the Shares underlying the ADSs have been obtained or
made, except that no opinion is given in this paragraph (vii) with
respect to (i) United States state securities or Blue Sky laws or any
laws of jurisdictions outside the PRC and the United States in
connection with the purchase and distribution of the Shares and ADSs
by or for the account of the Underwriters or (ii) the Federal
securities laws and federal and State antifraud laws.
(viii) Assuming the validity of such actions under PRC law,
under the laws of the State of New York relating to submission to
personal jurisdiction (including venue), each of the Company and the
Selling Shareholder has, pursuant to Section 12 of this Agreement, and
the Company has, pursuant to Section 19 of the Deposit Agreement (A)
validly submitted to the personal jurisdiction of any state or federal
court located in the Borough of Manhattan, The City of New York, New
York (each a "New York Court") in any action arising out of or
relating to this Agreement, the Deposit Agreement or the transactions
contemplated hereby or thereby, (B) validly waived (to the extent
permitted by law) any objection to the venue of a proceeding in any
such court, except such waiver under the Deposit Agreement as has not
been made by the Company in respect of proceedings not involving the
Depositary or its agents, (C) to the extend permitted by law validly
waived and agreed not to plead or claim in any such court that any
such proceeding brought in such court has been brought in an
inconvenient forum, (D) subject to the limitations imposed by the
Foreign Sovereign Immunity Act of 1976, except under the Deposit
Agreement, validly waived sovereign immunity relating to any such
proceeding (provided that no opinion need be expressed to the extent
any such waiver purports to constitute a present waiver of any
immunity to which the Company may become entitled after the date of
such opinion), and (E) validly appointed the Process Agent (as defined
herein) as its authorized agent for the purpose described in Section
12 of this Agreement (as to both the Company and the Selling
Shareholder) and Section 19 of the Deposit Agreement (as to the
Company); and service of process effected on such agent in the manner
set forth in Section 12 of this Agreement (as to the Company and the
Selling
31
Shareholder) and Section 19 of the Deposit Agreement (as to the
Company) will be effective to confer valid personal jurisdiction over
the Company and the Selling Shareholder, as the case may be, in any
New York court.
(ix) To the knowledge of such counsel after due inquiry,
each of the Registration Statement and the ADS Registration Statement
has been declared effective under the Securities Act and the rules and
regulations thereunder; the U.S. Prospectus either was filed with the
Commission pursuant to Rule 424(b) under the Securities Act on the
date specified thereon, or was included in the Registration Statement
(as the case may be), and no stop order suspending the effectiveness
of the Registration Statement or the ADS Registration Statement is in
effect and no proceedings for that purpose have been instituted, or
are pending before or threatened by the Commission.
(x) Each of (A) the issuance and sale of the Shares and
ADSs being delivered at such Closing Time to be sold by the Company,
(B) the sale of the Shares and ADSs being delivered at such Closing
Time to be sold by the Selling Shareholder, (C) the deposit of the
Shares being deposited by the Company and the deposit of the Shares
being deposited by the Selling Shareholder, in each case with the
Depositary against issuance of the ADRs evidencing the ADSs to be
delivered at such Closing Time by the Company and the Selling
Shareholder, and (D) the performance by the Company and the Selling
Shareholder of their obligations under this Agreement and by the
Company of its obligations under the Deposit Agreement will not
violate any existing federal law of the United States or law of the
State of New York known to us to be applicable to the Company and the
Selling Shareholder, except that no opinion need be given in this
paragraph (x) with respect to (i) United States state securities or
Blue Sky laws or any laws of jurisdictions outside the PRC and the
United States in connection with the purchase and distribution of the
Shares and ADSs by or for the account of the Underwriters or (ii) the
Federal securities laws and federal and State antifraud laws.
(xi) The Company is not and, after giving effect to the
Global Offering and sale of ADSs and Shares and the application of the
proceeds thereof as described in the Prospectus, will not be, required
to register as an "investment company" as such term is defined in the
Investment Company Act.
(xii) It is not necessary in connection with (A) the offer,
sale and delivery of the ADSs and Shares by the Company and the
Selling Shareholder to the several International Underwriters pursuant
to this Agreement or (B) the initial resales of the ADSs and Shares by
the several International Underwriters in the manner contemplated
hereby and by the International Offering Circular to register these
ADSs and Shares under the Securities Act, except that such counsel
need not express any opinion concerning any subsequent resale of any
such ADSs or Shares.
(xiii) To the extent the Uniform Commercial Code as currently
in effect in New York in applicable (the "New York UCC"), assuming
that the ADSs, sold by the Selling Shareholder hereunder are
"financial assets" as defined in Section 8-102(a) (9) of the New York
UCC and that the Underwriter under whose name such ADSs are initially
registered acquires security entitlements (as defined in Section 8-102
of the New York UCC) with respect to such ADSs from DTC for value and
that no Underwriter has notice (within the meaning of Section 8-105 of
the New York UCC) of any adverse claim (as defined in Section 8-102 of
the New York UCC), an action
32
based on an adverse claim to such ADSs deposited in or held by the
DTC, whether such action framed in conversion, replevin, constructive
trust, equitable lien or other theory, may not be asserted against the
Underwriter under whose name such ADSs are initially registered.
Such counsel shall also state that while it has not itself
checked the accuracy and completeness of, or otherwise verified, and is not
passing upon and assumes no responsibility for the accuracy or completeness
of, the statements contained in the Registration Statement or the
Prospectus, except to the limited extent stated in paragraphs (e)(iv), (v)
and (vi) above, such counsel advises the Underwriters that:
(a) The Registration Statement (except for the financial
statements, the related notes and schedules, and other
financial information contained therein or omitted
therefrom, and the actuarial consultants' report of
▇▇▇▇▇▇▇▇▇▇▇-▇▇▇▇▇▇ ▇▇▇▇▇▇ included as Annex A to the
Prospectus and the property valuation report of
Sallmanns (Far East) Ltd. included as Annex B to the
Prospectus, as to which such counsel need express no
belief), at the time it became effective, and the U.S.
Prospectus (except for the financial statements, the
related notes and schedules, and other financial
information contained therein or omitted therefrom,
and the actuarial consultants' report of
▇▇▇▇▇▇▇▇▇▇▇-▇▇▇▇▇▇ Perrrin included as Annex A to the
Prospectus and the property valuation report of
Sallmanns (Far East) Ltd. included as Annex B to the
Prospectus, as to which such counsel need express no
belief), as of its date and as of the Closing Time,
appeared on their respective faces to be appropriately
responsive in all material respects to the
requirements of the Securities Act and the applicable
rules and regulations of the Commission thereunder
(except that such counsel need express no belief as to
Regulation S-X).
(b) In the course of such counsel's review and discussion
of the contents of the Registration Statement and the
Prospectus with certain officers and employees of the
Company and its independent accountants, but without
independent check or verification, no facts have come
to such counsel's attention which cause it to believe
that the Registration Statement (other than financial
statements, the related notes and schedules, and other
financial information contained therein or omitted
therefrom, and the actuarial consultant's report of
▇▇▇▇▇▇▇▇▇▇▇-▇▇▇▇▇▇ ▇▇▇▇▇▇ included as Annex A to the
Prospectus and the property valuation of Sallmanns
(Far East) Ltd. included as Annex B to the Prospectus,
as to which such counsel need express no belief) at
the time it became effective, contained an untrue
statement of a material fact or omitted to state a
material fact required to be stated therein or
necessary to make the statements contained therein not
misleading, or that the Prospectus (other than
financial statements, the related notes and schedules,
and other financial information contained therein or
omitted therefrom, and the actuarial consultants'
report of ▇▇▇▇▇▇▇▇▇▇▇-Tower ▇▇▇▇▇▇ included as Annex A
to the Prospectus and the
33
property valuation report of Sallmanns (Far East) Ltd.
included as Annex B to the Prospectus, as to which
such counsel need express no belief), as of its date
and as of the Closing Time, contained or contains any
untrue statement of a material fact or omitted or
omits to state a material fact necessary to make the
statements therein, in light of the circumstances
under which they were made, not misleading.
(f) The Underwriters shall have received an opinion of
▇▇▇▇▇ & Overy, Hong Kong counsel to the Company and the Selling
Shareholder, addressed to the Underwriters and dated the date of such
Closing Time, in form and substance satisfactory to the Representatives and
the Global Coordinators, to the effect that:
(i) the Company has been registered as an oversea company
under Part XI of the Companies Ordinance (Cap 32 of the Laws of Hong
Kong). According to the results of the searches referred to in such
opinion, there has been no winding-up petition, winding-up order or
appointment of a receiver made or issued against the Company.
(ii) All the H Shares as described in the Hong Kong
Prospectus have been approved for listing and admission for trading on
the HKSE.
(iii) The Underwriting Agreements create legal, valid,
binding and enforceable obligations of the Company and the Selling
Shareholder respectively under the laws of Hong Kong (to the extent
applicable).
(iv) None of (i) the execution, delivery and performance of
the Underwriting Agreements or the Deposit Agreement as defined in the
International Underwriting Agreement (the "Deposit Agreement") in
accordance with their respective terms by the Company or the Selling
Shareholder, (ii) the sale of the H Shares or ADSs to be sold by the
Selling Shareholder in accordance with the respective terms of the
International Underwriting Agreement and the Hong Kong Prospectus,
(iii) the issuance or sale of the H Shares or ADSs to be issued or
sold by the Company in accordance with the respective terms of the
International Underwriting Agreement and the Hong Kong Prospectus,
(iv) the deposit of H Shares pursuant to the Deposit Agreement by the
Company or the Selling Shareholder, (v) the deposit of H Shares in
CCASS by the Company or the Selling Shareholder as contemplated by the
Hong Kong Prospectus or the International Underwriting Agreement,
constitutes or will result in a breach or violation of, or a default
under, any of:
(a) the laws of Hong Kong;
(b) the Rules Governing the Listing of Securities on The
Stock Exchange of Hong Kong Limited; or
(c) any order, rule or regulation of any Hong Kong
Government Agency having jurisdiction over the Company
or the Selling Shareholder, as the case may be.
Such opinion should state that such counsel is not aware of any reason
to consider that the indemnification and contribution provisions in
section 9 of this Agreement and clause [13] of the Hong Kong
Underwriting Agreement (respectively) violate Hong Kong law on grounds
of public policy and that
34
under Hong Kong law, it is not necessary to file or register the
Underwriting Agreements or the Deposit Agreement with any governmental
or regulatory authority in Hong Kong to ensure their respective
validity, enforceability and/or admissibility as evidence.
(v) No consent, approval or authorisation of or order of
or from any governmental, judicial or public bodies or authorities in
Hong Kong is required in connection with:
(a) the execution, delivery and performance of the
respective Underwriting Agreements or the Deposit
Agreement by the Company or the Selling Shareholder;
(b) the execution, delivery and performance of the
Corporate Investor Agreements (each as defined in the
International Underwriting Agreement) by the Company
in the manner described and contemplated by the Hong
Kong Prospectus;
(c) the offering, sale or issuance of the Offer Shares or
ADSs in the manner contemplated in the Hong Kong
Prospectus or the U.S. Prospectus or the International
Offering Circular; or
(d) the issue, circulation and distribution of the Hong
Kong Prospectus in Hong Kong, except for registration
of the Hong Kong Prospectus under the Companies
Ordinance by the Registrar of Companies in Hong Kong.
(vi) With respect to the section of the Hong Kong
Prospectus headed "Relationship With CLIC", the descriptions of the
Rules Governing the Listing of Securities on the Stock Exchange of
Hong Kong and the conditions of the waiver in relation to "Connected
Transactions" are correct and fairly stated in all material respects
in the context in which they appear therein.
(vii) The statements set forth in the U.S. Prospectus under
the headings "Enforcement of Civil Liabilities", "Taxation - Hong
Kong" and "Underwriters", to the extent any such statements constitute
summaries of Hong Kong law or relate to the Hong Kong Underwriting
Agreement, are correct and fairly stated in all material respects in
the context in which they appear therein, and nothing has been omitted
from such statements which would under such statements misleading or
incomplete in any material respect.
(viii) Except as disclosed in the Hong Kong Prospectus or the
U.S. Prospectus or the International Offering Circular, under the laws
of Hong Kong: (a) all dividends and other distributions declared and
payable on the H Shares may be paid in Hong Kong dollars; (b) Hong
Kong dollars are freely convertible into another foreign currency and
may be transferred out of Hong Kong without any exchange control
restrictions, and (c) none of such dividends or other distributions
will be subject to withholding taxes under the laws of Hong Kong.
(ix) [No stamp or other issuance or transfer taxes or
duties and no capital gains, income, withholding or other taxes are
payable by or on behalf of the Company or any Subsidiary to Hong Kong
or any political subdivision
35
or taxing authority thereof or therein in connection with (A) the
creation, allotment and issuance of the Shares, (B) the deposit with
the Depositary of Shares by the Company and the Selling Shareholder
against the issuance of ADRs evidencing ADSs, (C) the deposit with
HKSCC of the Shares, by the Company and the Selling Shareholder, (D)
the issuance, sale and delivery by the Company and the Selling
Shareholder of the Shares and the ADSs to or for the respective
accounts of the Underwriters and the Hong Kong Underwriters, as the
case may be, in the manner contemplated in this Agreement and in the
Hong Kong Underwriting Agreement, (E) the execution, delivery and
performance of this Agreement, the Hong Kong Underwriting Agreement,
the Corporate Investor Agreements and the Deposit Agreement, or (F)
the allotment and issuance of H Shares in Hong Kong by the Company to
successful applicants and, if applicable, the Hong Kong Underwriters,
under the Hong Kong Public Offering, in each case other than the SFC
transaction levy, the investor compensation levy and the HKSE trading
fee as described in the Prospectus and any liability to pay profits
tax which may arise in respect of persons carrying on a trade,
profession or business in Hong Kong.
(x) No stamp or other issuance or transfer taxes or duties
and no capital gains, income, withholding or other taxes are payable
by or on behalf of the Underwriters or the Hong Kong Underwriters to
Hong Kong or any political subdivision or taxing authority thereof or
therein in connection with (A) the creation, allotment and issuance of
the Shares, (B) the deposit with the Depositary of Shares by the
Company and the Selling Shareholder against issuance of ADRs
evidencing ADSs, (C) the deposit with HKSCC of Shares by the Company
and the Selling Shareholder, (D) the sale and delivery by the Company
and the Selling Shareholder of the Shares and the ADSs to or for the
respective accounts of the several Underwriters or Hong Kong
Underwriters in the manner contemplated in this Agreement and in the
Hong Kong Underwriting Agreement, (E) the execution, delivery and
performance of this Agreement, the Hong Kong Underwriting Agreement,
the Corporate Investor Agreements and the Deposit Agreement, other
than any liability to pay profits tax which may arise in respect of
persons carrying on a trade, profession or business in Hong Kong.]
(xi) Assuming that each Corporate Investor Agreement has
been duly authorized, executed and delivered by the Company and the
Selling Shareholder under PRC law, each Corporate Investor Agreement
has been duly executed and delivered by the Company and the Selling
Shareholder, and, assuming the due authorization, execution and
delivery of each Corporate Investor Agreement by the parties to such
agreement other than the Company and the Selling Shareholder and that
each of the Company and the Selling Shareholder has full power,
authority and legal right to enter into and perform its obligations
thereunder, each constitutes a valid and binding agreement of each of
the Company and the Selling Shareholder, enforceable in accordance
with its terms, subject as to enforceability to bankruptcy,
insolvency, fraudulent transfer, reorganization, moratorium and
similar laws of general applicability relating to or affecting
creditors' rights generally and to general principles of equity.
(g) The Underwriters shall have received an opinion of King & Wood,
PRC counsel to the Company and the Selling Shareholder, addressed to the
Underwriters and dated the date of such Closing Time, in form and substance
36
satisfactory to the Representatives and the Global Coordinators, to the
effect that:
(i) The Company has been duly incorporated and is validly
existing as a joint stock company with limited liability and in good
standing under the laws of the PRC, with full legal right, power and
authority (corporate and other), as authorized by the PRC government,
to own, use, lease and operate its properties and conduct its
businesses as described in the Prospectus and is duly qualified to
transact business and is in good standing in any jurisdiction in which
it owns or leases properties or conducts any business, and such
qualification is required, or is subject to no material liability or
disability by reason of the failure to be so qualified or to be in
good standing in any such jurisdiction; each of the Articles of
Association, the business license, the insurance business permit and
other constituent documents of the Company complies with all
applicable requirements of the PRC law, including but not limited to
the PRC Company Law and the PRC Insurance Law, and each is in full
force and effect; the Selling Shareholder has been duly established as
a state-owned enterprise and is validly existing and in good standing
under the laws of the PRC.
(ii) Each PRC Subsidiary has been duly incorporated and is
validly existing and in good standing under the laws of the PRC with
full legal right, power and authority (corporate and other), as
authorized by the PRC government, to own, use, lease and operate its
assets and to conduct its business in the manner presently conducted
and as described in the Prospectus and is duly qualified to transact
business in any jurisdiction in which it owns or leases properties or
conducts any business, and such qualification is required, or is
subject to no material liability or disability by reason of the
failure to be so qualified in any such jurisdiction; each of the
Articles of Association, the business license, the insurance business
permit (where applicable) and other constituent documents of each PRC
Subsidiary complies with all applicable requirements of PRC law,
including but not limited to the PRC Company Law and the PRC Insurance
Law, and each is in full force and effect.
(iii) Each PRC Subsidiary is a legal person with limited
liability and the liability of the Company in respect of equity
interests held in each PRC Subsidiary is limited to its investment
therein. All of the outstanding shares of capital stock of, or equity
interests in, each PRC Subsidiary have been duly authorized and are
validly issued, fully paid and non-assessable and are owned directly
by the Company, free and clear of any liens, charges, restrictions
upon voting or transfer or any other encumbrances, equities or claims.
To the best knowledge of such counsel after due inquiry, there are no
outstanding rights, warrants or options to acquire, or instruments
convertible into or exchangeable for, any shares of capital stock of,
or direct interest in, any PRC Subsidiary.
(iv) The Company has corporate power to enter into and to
perform its obligations under the Underwriting Agreements, the
Corporate Investor Agreements and the Deposit Agreement and has taken
all necessary corporate action to authorize the execution, delivery
and performance of, and has duly authorized, executed and delivered,
the Underwriting Agreements, the Corporate Investor Agreements and the
Deposit Agreement. Each of the Underwriting Agreements, the Corporate
Investor Agreements and the Deposit Agreement constitutes a legal,
valid and binding agreement of the
37
Company enforceable in accordance with its terms, subject as to
enforceability to bankruptcy, insolvency, reorganization and similar
laws of general applicability relating to or affecting creditors'
rights.
(v) The Selling Shareholder has corporate power to enter
into and to perform its obligations under the Underwriting Agreements
and the Corporate Investor Agreements and has taken all necessary
corporate action to authorize the execution, delivery and performance
of, and has duly authorized, executed and delivered, the Underwriting
Agreements and the Corporate Investor Agreements. Each of the
Underwriting Agreements and the Corporate Investor Agreement
constitutes a legal, valid and binding agreement of the Selling
Shareholder enforceable in accordance with its terms, subject as to
enforceability to bankruptcy, insolvency, reorganization and similar
laws of general applicability relating to or affecting creditors'
rights.
(vi) The execution and delivery by the Company of, and the
performance by the Company of its obligations under the Underwriting
Agreements, the Corporate Investor Agreements, and the Deposit
Agreement, and the consummation by the Company of the transactions
contemplated herein, therein and in the Registration Statement and the
ADS Registration Statement, including the issue and sale of the Shares
and ADSs being delivered at such Closing Time to be sold by the
Company, the deposit of the Shares being deposited by the Company with
the Depositary against issuance of the ADSs evidencing the ADRs to be
delivered at such Closing Time by the Company, and the compliance by
the Company with all of the provisions of the Underwriting Agreements,
the Corporate Investor Agreements, and the Deposit Agreement (A) will
not conflict with or result in a breach of violation of any of the
terms or provisions of, or constitute a default under, any indenture,
mortgage, deed of trust, loan agreement or other agreement or
instrument to which the Company or any of the Subsidiaries is a party
or by which the Company or any of the Subsidiaries is bound or to
which any of the properties or assets of the Company or any of the
Subsidiaries is subject; (B) will not result in any violation of the
provisions of the Articles of Association, business licenses or
insurance business permit of the Company or any other constituent
documents of any of the Subsidiaries; (C) will not result in any
violation of any provision of PRC law or statute; and (D) will not
result in a violation of any order, rule or regulation of any PRC
Government Agency having jurisdiction over the Company or any of the
Subsidiaries or any of their properties.
(vii) The execution and delivery by the Selling Shareholder
of, and the performance by the Selling Shareholder of its obligations
under the Underwriting Agreements and the Corporate Investor
Agreements, and the consummation by the Selling Shareholder of the
transactions contemplated herein and in the Registration Statement and
the ADS Registration Statement, including the sale of the Shares or
ADSs to be sold by the Selling Shareholder hereunder, the deposit of
the Shares with the Depositary against issuance of the ADRs evidencing
the ADSs to be delivered at each Closing Time by the Selling
Shareholder, and the compliance by the Selling Shareholder with all of
the provisions of the Underwriting Agreements and the Corporate
Investor Agreements (A) will not contravene any provision of
applicable law, or the certificate of incorporation or by-laws of the
Selling Shareholder, or any agreement or other instrument to which the
Selling Shareholder is a Party or which is binding upon the Selling
Shareholder or
38
any judgment, order or decree of any governmental body, agency or
court having jurisdiction over the Selling Shareholder, (B) will not
result in any violation of the provisions of the Articles of
Association, business license or insurance business permit of the
Selling Shareholder, (C) will not result in any violation of any
provision of PRC law or statute, and (D) will not result in a
violation of any order, rule or regulation of any PRC Government
Agency having jurisdiction over the Selling Shareholder.
(viii) The Company has an authorized share capital as set
forth in the Prospectus, and all of the issued shares of capital stock
of the Company (including the Shares being delivered at the relevant
Closing Time) have been duly and validly authorized and issued and are
fully paid and non-assessable and the Shares being delivered at the
relevant Closing Time are free and clear of all liens, encumbrances,
equities or claims; there are no outstanding securities convertible
into or exchangeable for, or warrants, rights or options to purchase
from the Company, or obligations of the Company to issue, the Shares
or any other class of capital stock of the Company; the holders of
outstanding shares of capital stock of the Company are not entitled to
preemptive or other rights under the Articles of Association of the
Company or PRC law to acquire the ADSs or Shares to be purchased from
the Company under the Underwriting Agreements and the Corporate
Investor Agreements; the Shares may be freely deposited (A) by the
Company and the Selling Shareholder with the Depositary against
issuance of ADRs evidencing ADSs and (B) by the Company and the
Selling Shareholder with HKSCC; the ADSs and the Shares are freely
transferable by the Company and the Selling Shareholder to or for the
account of the several Underwriters in the manner contemplated in the
Underwriting Agreements and to the initial purchasers thereof and
there are no restrictions on subsequent transfers of the ADSs or the
Shares under PRC law; and the Shares conform to the description
thereof contained in the Prospectus.
(ix) Immediately prior to such Closing Time the Selling
Shareholder had (A) good and valid title to the Shares or ADSs to be
sold at such Closing Time by the Selling Shareholder under this
Agreement and the Deposit Agreement, free and clear of all liens,
encumbrances, equities or claims, and (B) full right, power and
authority to sell, assign, transfer and deliver the Shares or ADSs to
be sold by the Selling Shareholder hereunder and thereunder; and, upon
delivery of such Shares or ADSs and payment therefor pursuant hereto
and thereto, good and valid title to such Shares or ADSs, free and
clear of all liens, encumbrances, equities or claims, will pass to the
several Underwriters or the Global Coordinators, as the case may be.
(x) All Approvals required for (A) the issuance, sale and
delivery of the Shares and ADSs to be sold by the Company, (B) the
deposit of the Shares being deposited with the Depositary against
issuance of the ADRs evidencing the ADSs and with HKSCC, in each case
to be delivered at each Closing Time by the Company and the Selling
Shareholder, (C) the sale and delivery of the Shares and ADSs to be
sold by the Selling Shareholder and (D) the execution and delivery by
the Company and the Selling Shareholder of this Agreement, the
Corporate Investor Agreements and the Deposit Agreement, and (E) the
consummation by the Company and the Selling Shareholder of the
transactions contemplated hereunder and thereunder, have been duly
obtained and are in full force and effect; and each of the Company and
the Selling Shareholder has full right, power and
39
authority to enter into this Agreement and to sell, assign, transfer
and deliver the Shares to be sold by it hereunder.
(xi) The Registration Statement, the Prospectus, the ADS
Registration Statement and the 8-A Registration Statement and the
filing of the Registration Statement, the U.S. Prospectus, the ADS
Registration Statement and the 8-A Registration Statement with the
Commission have been duly authorized by and on behalf of the Company,
and the Registration Statement, the ADS Registration Statement and the
8-A Registration Statement have been duly executed and delivered
pursuant to such authorization by and on behalf of the Company.
(xii) As a matter of PRC law, no holder of any of the Shares
or ADSs after the completion of the Global Offering will indirectly be
subject to liability in respect of any liability of the Company with
the limitation to the Shares or ADSs they hold, but such holders will
not directly subject to the liability by virtue only of the holding of
any such Shares or ADSs. There are no limitations under PRC law on the
rights of holders of the Shares or ADSs to hold, vote or transfer
their securities.
(xiii) The application of the net proceeds from the Global
Offering, as contemplated by the Prospectus, will not contravene any
provision of applicable PRC law, rule or regulation or the Articles of
Association, other constitutive documents or the business license of
the Company or any of the Subsidiaries or the Selling Shareholder, or
contravene the terms or provisions of, or constitute a default under,
any indenture, mortgage, deed of trust, loan agreement, note, lease or
other agreement or instrument binding upon the Company or any of the
Subsidiaries or the Selling Shareholder, or any judgment, order or
decree of any PRC governmental body, agency or court having
jurisdiction over the Company or any of the Subsidiaries or the
Selling Shareholder.
(xiv) Except disclosed in the Prospectus, the Company and
the Subsidiaries have valid title to, or valid leasehold interests in,
all of its real properties and assets and valid title to all personal
properties and assets, in each case, free and clear of all liens,
charges, encumbrances, equities, claims, defects, options or
restrictions, except such as do not, individually or in the aggregate,
interfere with the use made and proposed to be made of such property
by the Company and the relevant Subsidiary, as the case may be, and
peaceful and undisturbed possession under all leases to which it is a
party as lessee. Each lease to which the Company or any of the
Subsidiaries is a party is legal, valid and binding, enforceable in
accordance with its terms against the other parties thereto, and no
default (or event which with notice or lapse of time, or both, would
constitute a default) by the Company or any of the Subsidiaries has
occurred and is continuing under any such lease. If the Selling
Shareholder is the lessor of any such lease, the Selling Shareholder
has valid title to, or unfettered ability to grant valid leasehold
interests in (and for the terms stated therein) the real properties
and assets that are the subject of such lease. Each of the Company and
the Subsidiaries has obtained all land-use rights and rights of way
required to conduct their business, free and clear of all encumbrances
and defects except such as are described in the Prospectus or such as
are not material or do not interfere with the use made and proposed to
be made of such property by the Company and the relevant Subsidiary
and all such land-use rights and rights of way are legal, valid and
binding and enforceable in accordance with the terms of their
establishment.
40
Neither the Company nor any of the Subsidiaries owns, operates,
manages or has any other right or interest in any other material real
property of any kind save for those described in the property
valuation report set out in Annex B of the Prospectus and no other
real properties are necessary for the Company and the Subsidiaries for
the carrying on of the business of the Company and the Subsidiaries in
the manner described in the Prospectus other than those properties the
absence of which would not, individually or in the aggregate, have a
Material Adverse Effect.
(xv) Except as disclosed in the Prospectus, there are no
legal impediments under PRC law in order for the Company or any of the
Subsidiaries to obtain land use rights certificates in respect of the
land, and building ownership certificates in respect of the buildings
transferred by the Selling Shareholder to the Company as part of the
reorganization.
(xvi) Each Restructuring Document executed by the Company,
the Selling Shareholder and each other China Life Group Member has
been duly authorized, executed and delivered by each of them, and each
Restructuring Agreement constitutes a legal, valid and binding
agreement of the Company, the Selling Shareholder and each other China
Life Group Member, as the case may be, enforceable in accordance with
its terms.
(xvii) The execution by the Company, the Subsidiaries, the
Selling Shareholder and each other China Life Group Member of each
Restructuring Document to which it is a party and the delivery by and
the performance by each of the Company, the Subsidiaries, the Selling
Shareholder and each other China Life Group Member of its obligations
under each Restructuring Agreement to which it is a party and the
consummation of the Restructuring Transactions (A) does not and will
not, to the best knowledge of such counsel after due inquiry, conflict
with, or result in a breach or violation of, any of the terms or
provisions of, or constitute a default under, any indenture, mortgage,
deed of trust, loan agreement, note, lease or other agreement or
instrument to which any of the Company, the Subsidiaries, the Selling
Shareholder and each other China Life Group Member is a party or by
which any of the Company, the Subsidiaries, the Selling Shareholder
and each other China Life Group Member is bound or to which any of the
property or assets of any of the Company, the Subsidiaries, the
Selling Shareholder and each other China Life Group Member is subject;
(B) did not and will not, result in any violation of the provisions of
the Articles of Association, the business licenses or any other
constituent documents of the Company, the Subsidiaries, the Selling
Shareholder and each other China Life Group Member (C) will not result
in any violation of any provision of PRC law or statute; and (D) will
not result in a violation of any order, rule, regulation, judgment,
order or decree of any PRC Governmental Agency having jurisdiction
over the Company, the Subsidiaries, the Selling Shareholder or any
other China Life Group Member or any of their properties.
(xviii) The description of the Restructuring Transactions set
forth in the Prospectus under the captions "The Restructuring,"
"Relationship with CLIC" and "Principal and Selling Shareholders" is
true and correct in all material respects with respect to PRC legal
matters, documents or proceedings described therein. All of the
Restructuring Transactions have been effected in compliance with all
applicable national, provincial, municipal and local laws in the PRC.
To the extent governed or affected by PRC law, the Restructuring
Transactions constitute valid, binding and
41
irrevocable transactions completed by the parties to the Restructuring
Documents.
(xix) In connection with the Restructuring Transactions, the
Selling Shareholder has legally and validly transferred to the Company
(i) all long-term insurance policies (policies having a term of more
than one year from the date of issuance) written by the Selling
Shareholder and issued on or after June 10, 1999, having policy terms
approved by or filed with the CIRC on or after June 10, 1999 and
either (A) recorded as a long-term insurance policy as of June 30,
2003 in a database attached to the Reorganization Agreement as an
annex or (B) having policy terms for group supplemental medical
insurance (fund type), (ii) all stand-alone short-term policies
(policies having a term of one year or less from the date of issuance)
issued on or after June 10, 1999 and (iii) all riders supplemental to
the policies described in clauses (i) and (ii) above, together with
those reinsurance contracts specified in an annex to the
Reorganization Agreement [and all insurance policies written by the
Selling Shareholder and issued after June 30, 2003] (collectively, the
"Transferred Policies"). All other insurance policies written by the
Selling Shareholder and issued on or before June 30, 2003 were legally
and validly retained by the Selling Shareholder. All new insurance
policies written after June 30, 2003 by or on behalf of the Company
are the policies of the Company, and, except as described in the
Prospectus, no insurance policies have been written for the account of
CLIC after June 30, 2003. Except as disclosed in the Prospectus, the
transfer of the Transferred Policies from the Selling Shareholder to
the Company is legal, valid and binding against each and every
policyholder of the Transferred Policies, and in particular, legal,
valid and binding consents of the policyholders have been duly
obtained with respect to the transfer of each of the Transferred
Policies, including, but not limited to, consent from each
policyholder who acquired a Transferred Policy written by the Selling
Shareholder and issued on or after May 28, 2003; and the Company shall
not have any continuing obligations to the holders of the
non-transferred policies. No holder of a Transferred Policy has any
valid claim against the Selling Shareholder or the Company arising out
of or in connection with the Restructuring Transactions or any of
them. No consent of any holder of a policy written by the Selling
Shareholder which is not a Transferred Policy is or was necessary in
connection with the transfer of the Transferred Policies or any of the
other Restructuring Transactions and no holder of any such policy has
any valid claim against the Selling Shareholder or the Company arising
out of or in connection with the Restructuring Transactions or any of
them. No claim by any holder of a policy written by the Selling
Shareholder or the Company arising out of or in connection with the
Restructuring Transactions or any of them is pending or, to the best
knowledge of the Company and the Selling Shareholder, threatened.
(xx) All consents, approvals, authorizations, orders,
registrations and qualifications required in the PRC (the "PRC
Restructuring Consents") in connection with the Restructuring
Transactions and the execution, delivery and performance of the
Restructuring Transactions have been made or unconditionally obtained
in writing or otherwise sufficient under the PRC laws and regulations
(including, without limitation, all actions necessary for the approval
of the Restructuring Transactions by the PRC State Council, the CIRC,
the MOF, the CSRC and insurance policy holders and third parties under
agency agreements and other contracts or agreements). No PRC
Restructuring Consent has been withdrawn or is subject to any
condition
42
precedent which has not been fulfilled or performed. All PRC
Restructuring Consents are in full force and effect.
(xxi) In connection with the Restructuring Transactions,
all of the Selling Shareholder's exclusive sales agents, of whom the
total number was approximately 650,000 as of the date hereof, have
legally and validly (i) entered into sales agency contracts with the
Company and (ii) terminated their respective sales agency contracts
with the Selling Shareholder.
(xxii) In connection with the Restructuring Transactions, all
consents, approvals and authorizations have been legally, validly and
unconditionally obtained in writing from third parties under any joint
venture agreements, distribution agreements or arrangements with any
commercial banks, post offices, savings cooperatives, travel agencies,
hotels, airline sales counters and insurance brokerage and insurance
agency companies, bank loans, guarantees and all other contracts,
where such contracts, agreements or arrangements purportedly to have
been transferred or assigned to the Company except as disclosed in the
Prospectus.
(xxiii) No additional Approval of or filing with any
Governmental Agency is required in the PRC in respect of the direct or
indirect completion of the Restructuring Transactions or the ownership
by the Company of its equity interest in each of the Subsidiaries,
except such approvals which have been obtained and are in full force
and effect.
(xxiv) Under the current PRC laws and regulations, the
Company is not liable for any debts or other liabilities of the
Selling Shareholder not specifically assumed by the Company in the
Restructuring Transactions and the Company does not and will not, have
any payment obligations or other liabilities to holders, of or
otherwise in respect of any Non-Transferred Policy in the
Restructuring Transactions. In addition, no holder of any
Non-Transferred Policy has any legal basis to claim any right against
the Company, and the Company has no obligation to pay or indemnify any
claim made by any holder of a Non-Transferred Policy, and the relevant
Government Agencies of the PRC shall not have any legal authority to
require the Company to pay or indemnify the Selling Shareholder or any
holder of any Non-Transferred Policy.
(xxv) The MOF has issued its approval No. 2003[100] dated
October 15, 2003 providing for the establishment of a special purpose
fund to be jointly managed by the MOF in the Selling Shareholder. The
MOF has the authority to issue its approval regarding the special
purpose fund, the approval is valid and effective and the Selling
Shareholder have no reason to believe that the MOF will revoke the
approval. The descriptions of the fund and the MOF's approval thereof
contained in the Prospectus are materially fair and accurate.
(xxvi) There are no outstanding guarantees or contingent
payment obligations of the Company and the Subsidiaries in respect of
indebtedness of third parties.
(xxvii) The Company and the Subsidiaries are not in violation
of their respective Articles of Association, business licenses or any
other constituent documents or in default in the performance or
observance of any material obligation, agreement, covenant or
condition contained in any
43
indenture,mortgage, deed of trust, loan agreement, lease or other
agreement or instrument to which the Company or any of the
Subsidiaries is a party or by which it or any of their respective
properties may be bound.
(xxviii) Except as disclosed in the Prospectus, there are no
legal, governmental or arbitral proceedings before any court of the
PRC or before or by any public, regulatory or governmental agency or
body of the PRC pending or, to the best of such counsel's knowledge
after due inquiry, threatened against, or involving the properties or
business of, the Company or any of the Subsidiaries (including,
without limitation, any proceeding challenging the effectiveness or
validity of the Restructuring Transactions) or to which any of the
properties of the Company or any of the Subsidiaries is subject which
are not disclosed in the Prospectus and will have a Material Adverse
Effect.
(xxix) The statements set forth (A) in the Prospectus under
the captions "Prospectus Summary," "Risk Factors," "Exchange Rate
Information," "Dividend Policy," "Management's Discussion and Analysis
of Financial Condition and Results of Operations," "Life Insurance
Industry in China," "Corporate Investors," "Business," "Regulation,"
"Management," "The Restructuring," "Relationship with CLIC," "Selling
Shareholder and Principal Shareholder," "Description of Shares,"
"Taxation -- PRC Taxation," "Underwriting" and "Enforceability of
Civil Liabilities," and (B) in the "Notes to Combined Financial
Statements" included in the Prospectus, under the caption "3.
Principal Accounting Policies," and (C) in the Registration Statements
in Items 6 and 9, in each case insofar as such statements constitute
summaries of PRC legal and regulatory matters, documents or
proceedings referred to thereto, fairly and accurately present the
information called for with respect to such legal and regulatory
matters, documents and proceedings and constitute fair and accurate
summaries of the PRC legal and regulatory matters, documents,
proceedings and other matters referred to therein.
(xxx) Except disclosed in the Prospectus, there is no
pending or threatened PRC regulatory, administrative or other
governmental initiative, including any such initiative against the
Company's insurance sales agents who do not have the required
certification from CIRC or the required business license from the
SAIC, which, if implemented or adopted in the manner proposed or
contemplated, could have a Material Adverse Effect.
(xxxi) There are no (A) legal or governmental proceedings
pending or, to the knowledge of such counsel after due inquiry,
threatened to which the Company or any of the Subsidiaries is or may
become a party or to which any of the properties of the Company or any
of the Subsidiaries is subject that is required to be described in the
Registration Statement or the Prospectus and is not so described or
(B) statute, regulation, contract or other document that is required
to be described in the Registration Statement or the Prospectus or to
be filed as an exhibit to the Registration Statement that is not
described or filed as required.
(xxxii) Each of the Company and the Subsidiaries has all
necessary licenses, consents, authorizations, approvals, orders,
certificates and permits of and from, and has made all declarations
and filings with, all national, provincial, municipal, local and other
governmental authorities, agencies or bodies, self regulatory
organizations and courts and other tribunals in the
44
PRC (including, without limitation, the PRC State Council, the CIRC,
the MOF, the CSRC, the SAIC and the Trademark Administration Bureau),
to (A) own, lease, license and use its properties and assets in the
PRC and to conduct its business in the PRC in the manner described in
the Prospectus and (B) use the proceeds of the Global Offering, for
capital expenditures or other general corporate purposes or to repay
borrowings, without restriction as contemplated by the Prospectus;
such PRC licenses, consents, authorizations, approvals, orders,
certificates or permits contain no materially burdensome restrictions
not described in the Registration Statement or the Prospectus; and (1)
the CIRC or any other regulatory body is not considering modifying,
suspending or revoking any such PRC licenses, consents,
authorizations, approvals, orders, certificates or permits and (2) the
Company and the Subsidiaries is in compliance with the provisions of
all such PRC licenses, consents, authorizations, approvals, orders,
certificates or permits in all material respects.
(xxxiii) (A) The Company and the Subsidiaries own or have valid
licenses in full force and effect or otherwise have the legal right to
use, or can acquire on reasonable terms, all material, copyrights,
know-how (including trade secrets and other unpatented and/or
unpatentable proprietary or confidential information, systems or
procedures), trademarks, service marks and trade names (including the
"China Life" name and logo) currently employed by them in connection
with the business currently operated by them, and (B) none of the
Company nor any of the Subsidiaries has received any notice of
infringement of or conflict with asserted rights of others with
respect to any of the foregoing which, individually or in the
aggregate, if the subject of an unfavorable decision, ruling or
finding, would result in any material adverse change in the condition,
financial or otherwise, in the earnings, business, prospects or
operation of the Company and the Subsidiaries, taken as a whole.
Neither the Company nor any of its Subsidiaries hold any patents,
patent rights, inventions which are individually or in the aggregate
material to their businesses.
(xxxiv) All dividends and other distributions declared and
payable on the H shares of capital stock of the Company in Renminbi
under the current laws and regulations of PRC may be converted into
foreign currency that may be freely transferred out of the PRC, and
all such dividends and other distributions will not be subject to
withholding or other taxes under the laws and regulations of PRC and
are otherwise free and clear of any other tax, withholding or
deduction in the PRC and may be paid without the necessity of
obtaining any Approval in the PRC.
(xxxv) All dividends and other distributions declared and
payable on the Company's direct or indirect equity interests in the
Subsidiaries may under the current laws and regulations of the PRC be
paid to the Company.
(xxxvi) The choice of law provisions set forth in the
Underwriting Agreements and the Deposit Agreement will be recognized
by PRC courts; each of the Company, the Subsidiaries and the Selling
Shareholder can ▇▇▇ and be sued in its own name under the laws of the
PRC; the irrevocable submission of the Company and the Selling
Shareholder to the jurisdiction of any New York Court, the waiver by
each of the Company and the Selling Shareholder of any objection to
the venue of a proceeding in a New York Court, the waiver and
agreement not to plead an inconvenient forum, the waiver of sovereign
immunity and the agreement of each of the Company and
45
the Selling Shareholder that the Underwriting Agreements and the
Deposit Agreement shall be construed in accordance with and governed
by the laws of the State of New York are legal, valid and binding
under the laws of the PRC and will be respected by PRC courts; the
Company has corporate power to appoint CT Corporation System as its
authorized agent for service of process pursuant to the Underwriting
Agreements and the Deposit Agreement and has taken all necessary
corporate action to authorize the appointment of CT Corporation System
as its authorized agent for service of process pursuant to the
Underwriting Agreements and the Deposit Agreement; the Selling
Shareholder has corporate power to appoint CT Corporation System as
its authorized agent for service of process pursuant to the
Underwriting Agreements and has taken all necessary corporate action
to authorize the appointment of CT Corporation System as its
authorized agent for service of process pursuant to the Underwriting
Agreements; service of process affected in the manner set forth in the
Underwriting Agreements and the Deposit Agreement will be effective,
insofar as PRC law is concerned, to confer valid personal jurisdiction
over the Company and the Selling Shareholder, as the case may be; and
any judgment obtained in a New York Court arising out of or in
relation to the obligations of the Company and the Selling
Shareholder, as the case may be, under the Underwriting Agreements and
the Deposit Agreement will be recognized in PRC courts subject to the
conditions described under the caption "Enforceability of Civil
Liabilities" in the Prospectus.
(xxxvii) The indemnification and contribution provisions set
forth in the Underwriting Agreements and the indemnification
provisions set forth in the Deposit Agreement do not contravene the
public policy or laws of the PRC, and insofar as matters of PRC law
are concerned constitute the legal, valid and binding obligations of
each of the Selling Shareholder and the Company, as the case may be,
enforceable in accordance with the terms therein.
(xxxviii) Each of the Underwriting Agreements and the Deposit
Agreement and any other document required to be furnished hereunder or
thereunder is in proper legal form under the laws of the PRC for the
enforcement thereof against the Company and the Selling Shareholder,
as the case may be, in the PRC without further action on the part of
the Underwriters, the Hong Kong Underwriters or the Depositary; and to
ensure the legality, validity, enforceability or admissibility in
evidence of the Underwriting Agreements, the Deposit Agreement and any
other document required to be furnished hereunder or thereunder in the
PRC, it is not necessary that any such document be filed or recorded
with any court or other authority in the PRC or that any stamp or
similar tax be paid on or in respect of any such document.
(xxxix) No stamp or other issuance or transfer taxes or
duties and no capital gains, income, withholding or other taxes are
payable by or on behalf of the Company, any of the Subsidiaries or the
Selling Shareholder to the PRC or any political subdivision or taxing
authority thereof or therein in connection with (A) the creation,
allotment and issuance of the Shares, (B) the deposit with the
Depositary of Shares by the Company and the Selling Shareholder
against the issuance of ADRs evidencing ADSs, (C) the deposit with
HKSCC of Shares by the Company and the Selling Shareholder, (D) the
sale and delivery by the Company and the Selling Shareholder of the
Shares and the ADSs to or for the respective accounts of the
Underwriters and the
46
Hong Kong Underwriters, as the case may be, in the manner contemplated
in this Agreement and in the Hong Kong Underwriting Agreement, (E) the
execution, delivery and performance of this Agreement, the Hong Kong
Underwriting Agreement, the Corporate Investor Agreements and the
Deposit Agreement, (F) the sale and delivery outside Hong Kong by the
Underwriters or within Hong Kong by the Hong Kong Underwriters of the
Shares and the ADSs, respectively, to the initial purchasers thereof
in the manner contemplated in the Prospectus or the Hong Kong
Prospectus, as the case may be, or (vi) the Restructuring Transactions
completed prior to the date hereof.
(xl) No stamp or other issuance or transfer taxes or duties
and no capital gains, income, withholding or other taxes are payable
by or on behalf of the Underwriters or the Hong Kong Underwriters to
the PRC or any political subdivision or taxing authority thereof or
therein in connection with (A) the creation, allotment and issuance of
the Shares, (B) the deposit with the Depositary of Shares by the
Company and the Selling Shareholder against issuance of ADRs
evidencing ADSs, (C) the deposit with HKSCC of Shares by the Company
and the Selling Shareholder, (D) the sale and delivery by the Company
and the Selling Shareholder of the Shares and the ADSs to or for the
respective accounts of the several Underwriters or Hong Kong
Underwriters in the manner contemplated in this Agreement and in the
Hong Kong Underwriting Agreement, (E) the execution, delivery and
performance of this Agreement, the Hong Kong Underwriting Agreement,
the Corporate Investor Agreements and the Deposit Agreement, or (F)
the sale and delivery outside Hong Kong by the several Underwriters or
within Hong Kong by the Hong Kong Underwriters of the Shares and the
ADSs, respectively, to the initial purchasers thereof in the manner
contemplated in the Prospectus or the Hong Kong Prospectus, as the
case may be.
(xli) (A) The PRC tax laws and regulations and other PRC
laws and regulations applicable to the activities of the Company and
the Subsidiaries in the PRC (including regulatory fees, capital gain,
income, sales, withholding or other taxes and stamp or other issuance
or transfer taxes or duties to which the Company or the Subsidiaries
may become subject due to the conduct of activities in the PRC) are
assessed or apply to the Company and the Subsidiaries in substantially
the same manner as are currently applicable to any company
incorporated under the PRC Company Law or any state-owned enterprise
engaging in the life insurance business and activities in the PRC and
(B) there are no material PRC fees or taxes that are or will become
applicable to the Company or the Subsidiaries as a consequence of
completion of the Restructuring Transactions or the Global Offering
that have not been described in the Prospectus.
(xlii) The Company and the Subsidiaries have no material
legal obligations to provide housing benefits, severance or retirement
benefits, death or disability benefits (or other actual or contingent
employee benefits or perquisites) to any (A) present or past
employees, whether permanent or temporary, of the Company or any of
the Subsidiaries; (B) present or past employees, whether permanent or
temporary, of other China Life Group Members, (C) present or past
employees, whether permanent or temporary, of the Selling Shareholder,
(D) parties that transferred assets to the Company and the
Subsidiaries in connection with the Restructuring Transactions or (E)
PRC Governmental Agency (including the CIRC).
47
(xliii) The entry into, and performance or enforcement of the
Underwriting Agreements in accordance with their respective terms will
not subject the Underwriters or the Hong Kong Underwriters to a
requirement to be licensed or otherwise qualified to do business in
the PRC, nor will any Underwriter or the Hong Kong Underwriters be
deemed to be resident, domiciled, carrying on business through an
establishment or place in the PRC or in breach of any laws or
regulations in the PRC by reason of entry into, performance or
enforcement of the Underwriting Agreements.
(xliv) Under the laws of the PRC, none of the Company, any of
the Subsidiaries, the Selling Shareholder nor any of their properties,
assets or revenues are entitled to any right of immunity on the
grounds of sovereignty from any legal action, suit or proceeding, from
set-off or counterclaim, from the jurisdiction of any court, from
services of process, from attachment prior to or in aid of execution
of judgment, or from other legal process or proceeding for the giving
of any relief or for the enforcement of any judgment. The irrevocable
and unconditional waiver and agreement of the Company and the Selling
Shareholder in the Underwriting Agreements and the Deposit Agreement,
as the case may be, not to plead or claim any such immunity in any
legal action, suit or proceeding based on the Underwriting Agreements
and the Deposit Agreement is legal, valid and binding under the laws
of the PRC.
(xlv) Under the laws of the PRC, each holder of ADRs
evidencing ADSs issued pursuant to the Deposit Agreement shall be
entitled, subject to the provisions of [the Articles of Association of
the Company] and the Deposit Agreement, to seek enforcement of its
rights through the Depositary or its nominee registered as
representative of the holders of the ADRs in a direct suit, action or
proceeding against the Company.
(xlvi) The Company has no financial obligation to the PRC
government or any social security fund or other fund of the PRC
government in connection with the Global Offering.
In addition, such counsel shall state that nothing has come to
such counsel's attention in the course of their review of the
Registration Statement, 8-A Registration Statement, the ADS
Registration Statement and the Prospectus and in the course of the
procedures described in such counsel's letter, that causes such
counsel to believe that, as of its respective effective date, the
Registration Statement, the 8-A Registration Statement, the ADS
Registration Statement or any further amendment thereto made by the
Company prior to such Closing Time (other than the financial
statements, other financial data, the actuarial consultants' report
included in Annex A to the Prospectus and the property valuation
information included as Annex B to the Prospectus, as to which such
counsel need express no opinion) contained any untrue statement of a
material fact or omitted to state any material fact required to be
stated therein or necessary to make the statements therein not
misleading or that, as of its date, the Prospectus or any further
amendment or supplement thereto made by the Company prior to such
Closing Time (other than the financial statements, other financial
data, the actuarial consultants' report included as Annex A to the
Prospectus and the property valuation information included as Annex B
to the Prospectus, as to which such counsel need express no opinion)
contained any untrue statement of a material fact or omitted to state
any material fact necessary to make the statements therein, in the
light of the circumstances under which they were made, not misleading.
48
Nothing that has come to such counsel's attention in the course of the
procedures described in its letter has caused such counsel to believe
that, as of such Closing Time, the Prospectus or any further amendment
or supplement thereto made by the Company prior to such Closing Time
(other than the financial statements, other financial data, the
actuarial consultants' report included as Annex A to the Prospectus
and the property valuation information included as Annex B to the
Prospectus, as to which such counsel need express no opinion) contains
any untrue statement of a material fact or omits to state any material
fact necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading.
(h) The Underwriters shall have received an opinion of Mitsui,
Yasuda, Wani & Maeda, Japanese counsel to the Company and the Selling
Shareholder, addressed to the Underwriters and dated the date of such
Closing Time, in form and substance satisfactory to the Representatives and
the Global Coordinators, to the effect that:
(i) The registration made under the Japanese Securities
Registration Statement became effective on the date immediately
subsequent to the date hereof and has remained effective to and
including the date of the First Closing Time; no order suspending the
effectiveness of such registration, nor notice of a hearing from which
an order suspending such effectiveness may result, has been issued or
given under the Securities and Exchange Law of Japan.
(ii) Except for the registration made under the Japanese
Securities Registration Statement (and provided that such registration
has become effective) and the post report to be submitted to the
Minister of Finance of Japan pursuant to the Foreign Exchange and
Foreign Trade Law of Japan, no consent, approval, authorization or
other order is required to be obtained, or filing to be made, by the
Company under the laws of Japan in connection with the Japanese POWL.
(iii) The forms of the Japanese Securities Registration
Statement and the Japanese Prospectus conform in all material respects
to the requirements of the Securities and Exchange Law of Japan and
the Japanese Rules and Regulations.
(iv) All statements with respect to matters of the laws of
Japan set forth in the Japanese Securities Registration Statement or
the Japanese Prospectus are true and correct in all material respects.
The opinions of ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ & ▇▇▇▇▇, ▇▇▇▇ & ▇▇▇▇ and
Mitsui, Yasuda, Wani & Maeda described in Section 6(e), 6(f), 6(g) and
6(h) above shall be rendered to the Underwriters at the request of the
Company and the Selling Shareholder and shall so state therein.
(i) The Underwriters shall have received an opinion of ▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇ & Associate LLP United States counsel to the Depositary, addressed
to the Underwriters and dated the date of such Closing Time, to the effect
that:
(i) The Deposit Agreement has been duly authorized,
executed and delivered by the Depositary and constitutes a legal,
valid and binding obligation of the Depositary enforceable in
accordance with its terms, except as enforcement thereof may be
limited by bankruptcy, insolvency, fraudulent
49
transfer, reorganization, moratorium or similar laws of general
application relating to or affecting creditors' rights and by general
principles of equity.
(ii) Upon the issuance by the Depositary of ADRs evidencing
ADSs against the deposit of Shares in accordance with the provisions
of the Deposit Agreement, assuming such Shares issued in respect
thereof were, at the time of such deposit, (A) duly authorized and
validly issues, fully paid and non-assessable and (B) registered in
compliance with the Securities Act, such ADRs will be duly and validly
issued and will entitle the holder thereof to the rights specified
therein and in the Deposit Agreement.
(iii) The ADS Registration Statement has been declared
effective under the Act and no stop order suspending the effectiveness
of the ADS Registration Statement or any part thereof has been issued
and no proceedings for that purpose have been instituted or are
pending or contemplated under the Securities Act; although such
counsel has not itself checked the accuracy, completeness or fairness
of, or otherwise verified, the information furnished with respect to
the Company as set forth in the ADS Registration Statement. Such
counsel has generally reviewed and discussed with counsel for the
Company the information furnished, whether or not subject to such
counsel's check and verification; on the basis of such consideration,
review and discussion, but without independent check or verification
except as stated above, nothing has come to such counsel's attention
that causes such counsel to believe that the ADS Registration
Statement as of its effective date and as of the date of such opinion,
does not comply as to form in all material respects with the
requirements of the Act and the rules and regulations of the
Commission thereunder.
(j) The Underwriters shall have received an opinion of Skadden,
Arps, United States counsel to the Underwriters, addressed to the
Underwriters and dated the date of such Closing Time, covering such matters
as the Underwriters may reasonably request, and such counsel shall have
received such documents and information as they may reasonably request to
enable them to pass upon such matters.
(k) The Underwriters shall have received an opinion of ▇▇▇▇▇ &
▇▇▇▇▇▇▇▇, Hong Kong counsel to the Underwriters, addressed to the
Underwriters and dated the date of such Closing Time, covering such matters
as the Underwriters may reasonably request, and such counsel shall have
received such documents and information as they may reasonably request to
enable them to pass upon such matters.
(l) The Underwriters shall have received an opinion of Haiwen &
Partners, PRC counsel to the Underwriters, addressed to the Underwriters
and dated the date of such Closing Time, covering such matters as the
Underwriters may reasonably request, and such counsel shall have received
such documents and information as they may reasonably request to enable
them to pass upon such matters.
(m) The Underwriters shall have received an opinion of Shimazaki
International Law Office, Japanese counsel to the Underwriters, addressed
to the Underwriters and dated the date of such Closing Time, covering such
matters as the Underwriters may reasonably request, and such counsel shall
have received such documents and information as they may reasonably request
to enable them to pass upon such matters.
(n) The U.S. Underwriters and the International Underwriters,
respectively, shall have received, on the date hereof and at each Closing
Time, a letter dated the date hereof or dated the date of such Closing
Time, as the case may be, in form and substance satisfactory to the
Underwriters, from PricewaterhouseCoopers, independent public accountants,
containing statements and information of the type
50
ordinarily included in accountants' "comfort letters" to underwriters with
respect to the financial statements and certain financial information
contained in the Registration Statement and the Prospectus and in
substantially the respective forms of U.S. Comfort Letter and International
Comfort Letter attached to this Agreement as Exhibit A; provided that the
letters delivered at the First Closing Time shall use one or more "cut-off
dates", the latest of which is not earlier than [December 8], 2003.
(o) The Company and the Depositary shall have executed and delivered
the Deposit Agreement, in form and substance satisfactory to the
Representatives and the Global Coordinators, and the Deposit Agreement
shall be in full force and effect.
(p) The Depositary shall have delivered to the Company (i) a letter
confirming the furnishing of certain information about the Depositary for
inclusion in the Registration Statements, and (ii) at such Closing Time
certificates satisfactory to the Global Coordinators evidencing the deposit
with the Depositary of the Shares being so deposited against issuance of
ADRs evidencing the ADSs to be delivered by the Company and the Selling
Shareholder at such Closing Time, and the execution, countersignature (if
applicable), issuance and delivery of ADRs evidencing such ADSs pursuant to
the Deposit Agreement.
(q) The ADSs shall have been approved for listing on the NYSE,
subject only to official notice of issuance and the Shares shall have been
approved in principle for listing on the HKSE.
(r) The Hong Kong Underwriting Agreement shall have been executed by
the parties thereto and shall have become unconditional (except with
respect to the unconditionality of this Agreement) and not have been
terminated and the Hong Kong Public Offering contemplated by the Hong Kong
Underwriting Agreement shall have become unconditional.
(s) The listing agreement between the Company and the HKSE shall be
in full force and effect, and the H Shares as described in the Prospectus
shall have been approved for listing and admission for trading on the HKSE.
(t) The Underwriters shall have received such other documents and
certificates as they or their counsel have reasonably requested, after
consultation with the Company and the Company's counsel.
(u) Arrangements satisfactory to the Global Coordinators shall have
been made for the concurrent payment to the HKSE of all required aggregate
transaction levies, [investor compensation levies trading fees] payable on
Shares underlying the ADSs sold hereunder, Shares delivered in lieu of ADSs
hereunder and Shares sold under the Hong Kong Underwriting Agreement out of
the proceeds of the Global Offering.
(v) Subsequent to the respective dates as of which information is
given in the Registration Statement and the Prospectus, the Company shall
not have purchased any of its outstanding capital stock, nor declared, paid
or otherwise made any dividend or distribution of any kind on its capital
stock.
(w) Each of [Chow Tai Fook Nominee Limited, Hitchison International
Limited, Mitchim Resources Limited and Rich 60 Investment Limited] shall
have executed a Corporate Investor Agreement to purchase from the Company
and the Selling Shareholder the number of ADSs or Shares as provided in
such corporate placing agreement. Each Corporate Investor shall have
further agreed with the
51
Company and Global Coordinators not to sell, transfer or otherwise dispose
of the ADSs for twelve months following the date of commencement of
dealings in the Shares on the HKSE. Each of such Corporate Investor
Agreements shall be in full force and effect and no breach or repudiation
by such investors shall have occurred.
(x) The Company shall have complied with the provisions of Section
7(a) hereof with respect to the furnishing of prospectuses on the business
day in New York next succeeding the date of this Agreement.
(y) The registration made under the Japanese Securities Registration
Statement in connection with the Japanese POWL shall have become effective
pursuant to the Securities and Exchange Law of Japan on the date
immediately subsequent to the date hereof and shall have remained effective
at such Closing Time; and no notice of a hearing, from which an order
suspending the effectiveness of such registration may result, shall have
been given on or before such Closing Time.
If any of the conditions specified in this Section 6 shall not have
been fulfilled when and as required herein, or if any of the certificates,
opinions, written statements or letters furnished to the U.S.
Representatives and the International Representatives pursuant to this
Section shall not be in all respects satisfactory in form and substance to
the Global Coordinators and their U.S. counsel, all obligations of the
Underwriters hereunder may be cancelled by the Global Coordinators at, or
at any time prior to, such Closing Time. Notice of such cancellation shall
be given to the Company and the Selling Shareholder in writing, or by
telephone, telex or telegraph, confirmed in writing.
The several obligations of the U.S. Underwriters and International
Underwriters to purchase Optional ADSs hereunder are subject to the
delivery to the Global Coordinators at any Optional Closing Time of such
other documents as they may reasonably request with respect to the good
standing of the Company, the due authorization and issuance of the Optional
ADSs and other matters related to the issuance of the Optional ADSs.
7. Covenants of the Company and the Selling Shareholder. In further
consideration of the agreements of the Underwriters herein contained, each of
the Company and the Selling Shareholder covenants with each Underwriter as
follows:
(a) The Company will furnish to the Global Coordinators, without
charge, 20 signed copies of the Registration Statement (including exhibits
thereto) and for delivery to each other Underwriter a conformed copy of the
Registration Statement (without exhibits thereto) and to furnish to the
Underwriters, without charge, in New York City prior to 1:00 p.m. New York
City time, and in Hong Kong prior to 5:00 p.m. Hong Kong time, on the
business day next succeeding the date of this Agreement and during the
period mentioned in Sections 7(b) and 7(d) below, as many copies of the
Prospectus and any supplements and amendments thereto or to the
Registration Statement as the Underwriters may reasonably request.
(b) Before amending or supplementing the Registration Statement or
the Prospectus, the Company will furnish to the Representatives and the
Global Coordinators a copy of each such proposed amendment or supplement
and not to file any such proposed amendment or supplement to which the
Representatives and the Global Coordinators reasonably object, and to file
with the Commission within the applicable period specified in Rule 424(b)
under the Securities Act any prospectus required to be filed pursuant to
such Rule.
52
(c) If a Rule 462 Registration Statement is required to be filed
with respect to the Optional ADSs and the underlying Shares represented by
the Optional ADSs, the Company will furnish to the Representatives and the
Global Coordinators a copy of such Rule 462 Registration Statement as
promptly as possible after the filing thereof.
(d) If, during such period after the first date of the public
offering of the Shares the Prospectus is required by law to be delivered in
connection with sales by an Underwriter or dealer, any event shall occur or
condition exist as a result of which the Prospectus includes an untrue
statement of material fact or omits to state a material fact necessary to
make the statements therein, in the light of the circumstances when the
Prospectus is delivered to a purchaser, not misleading, or if it is
necessary to amend or supplement the Prospectus to comply with applicable
law, the Company will forthwith prepare, file with the Commission and
furnish, at its own expense [(except that if it is necessary to so amend or
supplement the Prospectus at any time later than 12 months after the first
date of public offering of the Shares, the Underwriters shall bear the
expense relating to the amendment or supplement)] [JGCS to confirm] to the
Underwriters and to the dealers (whose names and addresses the Global
Coordinators will furnish to the Company) to which ADSs or Shares may have
been sold by the Underwriters and to any other dealers upon request, either
amendments or supplements to the Prospectus so that the statements in the
Prospectus as so amended or supplemented, in the light of the circumstances
when the Prospectus is delivered to a purchaser, will not be misleading,
and so that the Prospectus, as amended or supplemented, will comply with
law.
(e) The Company will advise the Representatives and the Global
Coordinators, promptly after it receives notice thereof, of the issuance by
the Commission of any stop order or of any order preventing or suspending
the use of the Prospectus, of the suspension of the qualification of the
Shares or the ADSs for offering and sale in any jurisdiction, of the
initiation or threatening of any proceeding for any such purpose, or of any
request by the Commission for the amending or supplementing of the
Registration Statements or Prospectus or for additional information; and,
in the event of the issuance of any stop order or of any order preventing
or suspending the use of the Prospectus or suspending any such
qualification, promptly use its best efforts to obtain the withdrawal of
such order.
(f) The Company will endeavor to qualify the Shares or ADSs
(including Shares underlying ADSs) for offer and sale under the foreign or
state securities or Blue Sky laws of such jurisdictions as the Global
Coordinators shall reasonably request and will pay all expenses (including
reasonable fees and disbursements of counsel) in connection with such
qualification, and maintain such qualification in effect so long as
required for the distribution of the ADSs or the Shares, and in connection
with any review of the offering of the ADSs or the Shares by National
Association of Securities Dealers, Inc. (the "NASD").
(g) The Company will make generally available to the Company's
security holders and to the Global Coordinators as soon as practicable (i)
an earning statement covering the twelve-month period ending December 31,
2003 that satisfies the provisions of Section 11(a) of the Securities Act
and the rules and regulations of the Commission thereunder and (ii) audited
consolidated financial statements of the Company for the year ending
December 31, 2003, in each case prepared under the HK GAAP (with a
reconciliation to the U.S. GAAP) on a basis consistent with the
consolidated financial statements included in the Prospectus.
53
(h) To deposit the Shares with the Depositary or otherwise deliver
them in accordance with Section 5 hereof and to comply with all other terms
of the Deposit Agreement so that ADRs evidencing ADSs will be executed,
issued and, if applicable, countersigned by the Depositary and delivered to
the several Underwriters at the First Closing Time or any Optional Closing
Time, as the case may be.
(i) The Company will apply the net proceeds from the sale of the
ADSs and the Shares pursuant to the Global Offerings as set forth under the
caption "Use of Proceeds" in the Prospectus.
(j) The Company will (i) comply with the HKSE's rules or other
requirements to publicly publish, under certain circumstances, information
affecting the information contained in the Hong Kong Prospectus (including
that under the caption "Prospective Financial Information", and (ii)
announce in a press release (delivered to The Wall Street Journal/Dow ▇▇▇▇▇
News Service or other news service acceptable to the Global Coordinators)
any information so required to be publicly published by the HKSE.
(k) For so long as the Shares or the ADSs are outstanding, the
Company agrees to file with, or deliver to, the HKSE, the SFC, the NYSE,
the CIRC, the CSRC, the Commission, the KLFB and any other governmental
agency, authority or instrumentality in Hong Kong, the PRC, the United
States and Japan, such relevant reports, documents, agreements and other
information which may from time to time be required by applicable law or
regulation to be so filed or delivered because the Shares or the ADSs are
outstanding.
(l) The Company and the Selling Shareholder, jointly and severally,
agree to indemnify and hold the Underwriters harmless against any
documentary, stamp or similar issuance or transfer taxes, duties or fees,
including any interest and penalties, payable in Hong Kong or the PRC or
any other jurisdiction which are or may be required to be paid in or in
connection with the creation, allotment, issuance, offer and distribution
of the Shares or the ADSs and the execution and delivery of the
Underwriting Agreements, the Corporate Investor Agreements and the Deposit
Agreement. In addition, the Company and the Selling Shareholder, jointly
and severally, agree to indemnify and hold the Underwriters harmless
against any SFC transaction levy, investor compensation levy, HKSE trading
fee or brokerage fee which may be required to be paid in connection with
the offer, sale, distribution and issuance of the Shares or Shares
underlying the ADSs to be purchased hereunder and pursuant to the Hong Kong
Public Offering and under the Hong Kong Underwriting Agreement (whether
delivered in the form of Shares and ADSs) and the listing of the Shares on
the HKSE.
(m) None of the Company, its affiliates or any person acting on its
or their behalf (provided that no representation is made with respect to
any Underwriter) has engaged or will engage in (i) any directed selling
efforts (as that term is defined in Regulation S) with respect to any
Shares or ADSs other than those Shares or ADSs being offered or sold in the
U.S. Offering pursuant to the U.S. Prospectus, or (ii) any general
solicitation or general advertising in the United States with respect to
the any Shares or ADSs other than those Shares or ADSs being offered or
sold in the U.S. Offering pursuant to the U.S. Prospectus; and the Company,
its affiliates and each person acting on its or their behalf (provided that
no representation is made with respect to any Underwriter) have complied
and will comply with any applicable offering restriction requirements of
Regulation S.
54
(n) [Whether or not the transactions contemplated in this Agreement
are consummated or this Agreement is terminated, the Company will pay or
cause to be paid all costs, fees and expenses incident to the performance
by the Company and the Selling Shareholder of their obligations under this
Agreement and the Hong Kong Underwriting Agreement, including, but not
limited to: (i) the preparation, issuance and delivery of stock
certificates representing the Shares and ADRs evidencing the ADSs,
including printing and engraving fees, (ii) the fees, disbursements and
expenses of the counsel to the Company and the Selling Shareholder and the
Company's accountants, actuarial consultants; appraisers and valuators of
the Company's assets in connection with the transactions contemplated
hereby and all other fees, costs or expenses arising in connection with the
preparation and filing of the Registration Statement, the ADS Registration
Statement, any preliminary prospectus, the Prospectus and the Hong Kong
Prospectus, and amendments and supplements to any of the foregoing,
including all printing, graphic and document production, and translation
costs associated therewith, and the mailing and delivering of copies
thereof to the Underwriters, the Hong Kong Underwriters and dealers, in
quantities hereinabove specified, (iii) the fees, disbursements and expense
of the Company's public relations firm, (iv) all costs and expenses related
to the transfer and delivery of the Shares and the ADSs to the
Underwriters, including any SFC transaction levy, investor compensation
levy, HKSE trading fee and other stock transfer or other taxes and any
brokerage fee payable thereon, (v) the cost of printing or producing any
United States or foreign Blue Sky or legal investment memorandum in
connection with the offer and sale of the Shares or ADSs under foreign or
state securities laws (including, but not limited to, the expenses relating
to preparing and printing the Canadian "wrap" in connection with the offer
and sale of the Shares or ADSs in Canada, the expenses relating to
preparing, printing and filing the Japanese Securities Registration
Statement and the Japanese Prospectus in connection with the Japanese POWL
in Japan, and the expenses relating to filing and lodging the International
Offering Circular and its preliminary forms with the Monetary Authority of
Singapore and all expenses in connection with the qualification of the
Shares or ADSs for offer and sale under foreign or state securities laws as
provided in Section 7(f) hereof, [including filing fees and the reasonable
fees and disbursements of counsel to the Underwriters in connection with
such qualification,] in connection with preparation of the Blue Sky or
legal investment memorandum, (vi) all fees and expenses of the Depositary
which the Company has agreed to pay pursuant to the Deposit Agreement and
the costs and charges of the Custodian and any transfer agent or registrar,
(vii) all NASD filing fees and the reasonable fees and disbursements of
counsel to the Underwriters incurred in connection with the review and
qualification of the offering of the Shares or ADSs by the NASD, (viii) all
fees and expenses in connection with the preparation and filing of the
registration statement on Form 8-A relating to the Shares or ADSs and all
costs and expenses incident to listing the ADSs on the NYSE and the Shares
on the HKSE, (ix) the roadshow expenses incurred by the Company in
connection with the Global Offering, and (x) all other costs and expenses
incident to the performance by the Company of its obligations hereunder for
which provision is not otherwise made in this Section 7(n).]
(o) The Company will not use, and will cause each Subsidiary not to
use, the proceeds from the sale of its H Shares or ADSs, in the Company,
directly or indirectly, for any purpose or activity that would cause the
Underwriters or any purchaser of the Shares or ADSs in the Global Offering,
by virtue of their purchasing or holding any Shares or ADSs, to be in
violation of the Trading With the Enemy Act, as amended, the International
Emergency Economic Powers Act, as amended, or any of the foreign assets
control regulations of the United States Treasury Department (31 CFR,
Subtitle B, Chapter V, as amended) or any enabling legislation or executive
order relating thereto, or in connection with business, operations or
contracts with the
55
Governments or with any person or entity of Angola (UNITA), Burma
(Myanmar), Cuba, Iraq, Iran, Libya, North Korea, Sudan or any agent or
"Specially Designated National" thereof, or in connection with contracts in
support of projects in or for the benefit of the Governments of the above
indicated countries.
(p) The Selling Shareholder will not use the proceeds from the sale
of its Shares or ADSs, in the Company, directly or indirectly, for any
purpose or activity that would cause the Underwriters or any purchaser of
the Shares or ADSs in the Global Offering, by virtue of their purchasing or
holding any Shares or ADSs, to be in violation of the Trading with the
Enemy Act, as amended, the International Emergency Economic Powers Act, as
amended, or any of the foreign assets controls regulations of the United
States Treasury Department (31 CFR, Subtitle B, Chapter V, as amended) or
any enabling legislation or executive order relating thereto, or in
connection with business, operations or contracts with the Governments or
with any person or entity of Burma (Myanmar), Cuba, Iran, Libya, Sudan or
any agent or "Specially Designated National" or "Blocked Person"
(identified in 31 CFR, Subtitle B, Chapter V, Appendix 1) thereof, or in
connection with contracts in support of projects in or for the benefit of
the Governments of the above indicated countries.
(q) For so long as any of the Company's ADSs are listed on the NYSE,
the Company will furnish to the Company's shareholders, in accordance with
applicable laws and regulations, an annual report in English (including a
balance sheet and profit and loss accounts, owner's equity and cash flows
of the Company and its consolidated subsidiaries) certified by independent
public accountants and prepared in conformity with the HK GAAP together
with a reconciliation to the U.S. GAAP of net income, owner's equity and,
as necessary, other selected balance sheet and profit and loss accounts
items and, as soon as practicable after the end of the second quarter of
each fiscal year profit and loss accounts prepared in conformity with the
HK GAAP, together with a reconciliation to the U.S. GAAP of certain items
contained in such statements.
(r) The Company will, during a period of two years from the
effective date of the Registration Statement, furnish to the Global
Coordinators copies of all reports or other communications (financial or
other) furnished to shareholders, and to deliver to the Global
Coordinators, as soon as they are available, copies of any reports and
financial statements furnished to or filed with the Commission or any
securities exchange on which any class of securities of the Company is
listed (such financial statements to be on a consolidated basis to the
extent the accounts of the Company and the Subsidiaries are consolidated in
reports furnished by the Company to its shareholders generally or to the
Commission).
(s) Other than as described in the Prospectus, the Company will not
(and will cause the Subsidiaries not to) take, directly or indirectly, any
action which is designed to or which constitutes or which might reasonably
be expected to cause or result, under the Exchange Act, the provisions of
the Securities Ordinance of Hong Kong, in stabilization or manipulation of
the price of any security of the Company or facilitate the sale or resale
of the Shares or the ADSs.
(t) The Selling Shareholder will not (and will cause the
Subsidiaries not to) take, directly or indirectly, any action which is
designed to or which constitutes or which might reasonably be expected to
cause or result, under the Exchange Act, the provisions of the Securities
and Futures Ordinance of Hong Kong, in stabilization or manipulation of the
price of any security of the Company or facilitate the sale or resale of
the Shares or the ADSs.
56
(u) The Company will use its reasonable commerical efforts to list,
subject to official notice of issuance, and thereafter to maintain for at
least [.] years from the date hereof the listings of the ADSs on the NYSE
and the Shares on the HKSE.
(v) Each of the Company and the Selling Shareholder hereby agrees
that, without the prior written consent of the Global Coordinators on
behalf of the Underwriters, it will not, during the period commencing on
the date hereof and ending 180 days after the date of the Prospectus (the
"Lock-Up Period"), (i) offer, pledge, sell, contract to sell, sell any
option or contract to purchase, purchase any option or contract to sell,
grant any option, right or warrant to purchase, lend or otherwise transfer
or dispose of, directly or indirectly, any ADSs or Shares (directly or in
the form of ADSs) or any securities convertible into or exercisable or
exchangeable for, or that represent the right to receive, such ADSs or
Shares, (ii) enter into any swap or other arrangement that transfers to
another, in whole or in part, any of the economic consequences of ownership
of such share capital, whether any such transaction described in clause (i)
or (ii) above is to be settled by delivery of share capital or such other
securities, in cash or otherwise, or (iii) publicly disclose that it will
or may enter into any transaction described above. The foregoing sentence
shall not apply to the Shares or ADSs to be sold hereunder or pursuant to
the Hong Kong Public Offering.
(w) In order to document the Underwriters' compliance with the
reporting and withholding provisions of the Tax Equity and Fiscal
Responsibility Act of 1982 with respect to the transactions herein
contemplated, the Selling Shareholder will deliver to the Global
Coordinators prior to or at the First Closing Time a properly completed and
executed United States Treasury W-8 BEN (or other applicable form or
statement specified by Treasury Department regulations in lieu thereof).
(x) The Company agrees to indemnify and hold harmless the
Underwriters from and against (i) any and all actions, claims (whether or
not any such claim involves or results in any actions, or proceedings),
demands, investigations and proceedings from time to time made or brought
or threatened to be made or brought against any of them, and (ii) all cost,
fees, expenses, liabilities (including without limitation, any legal or
other expenses incurred by any of them in connection with defending or
investigating any such action or claim), losses and damages of any nature
whatsoever suffered or incurred by any of them, directly or indirectly, as
a result of, arising out of or in connection with the deposit of securities
of the Company to be sold by the Selling Shareholders into Central Clearing
and Settlement System established and operated by HKSCC ("CCASS") by any of
the Underwriters (or procured to be deposited into CCASS by any of them)
for the purpose of and/or the consummation of the transaction contemplated
herein.
(y) The Selling Shareholder will, as promptly as practicable, take
all necessary action to establish the jointly managed fund provided for in
the MOF Approval.
8. Covenant of the Underwriters.
Each underwriter covenants with the Company that it and each person
acting on its behalf has not engaged and will not engage in (i) any
directed selling efforts (as that term is defined in Regulation S) with
respect to any Shares or ADSs other than those Shares or ADSs being offered
or sold in the U.S. Offering pursuant to the U.S. Prospectus, or (ii) any
general solilitation or general advertising in the United States with
respect to the any Shares or ADSs other than those Shares or ADSs being
offered or sold in the U.S. Offering pursuant to the U.S. Prospectus; and
each Underwriter and each person acting on its behalf have complied and
will comply with any applicable offering restriction requirements of
Regulation S.
9. Indemnity and Contribution.
(a) The Company and the Selling Shareholder, jointly and severally,
agree to indemnify and hold harmless each Underwriter, its directors,
officers and employees, each affiliate of an Underwriter selling
underwritten ADSs or Shares on
57
behalf of an Underwriter, if any, and each person, if any, who controls any
Underwriter within the meaning of either Section 15 of the Securities Act
or Section 20 of the Exchange Act (each, an "Indemnified Underwriter
Party"), from and against any and all losses, claims, damages and
liabilities, joint or several, to which such Indemnified Underwriter Party
may become subject, under the Securities Act or the Exchange Act or
otherwise, insofar as such losses, claims, damages or liabilities (or
actions on claims in respect thereof) arise out of or are based upon any
untrue statement or alleged untrue statement of a material fact contained
in the Registration Statement, the ADS Registration Statement or the 8-A
Registration Statement or any amendment thereof, any preliminary prospectus
or the Prospectus, or the Japanese Final Prospectus (as amended or
supplemented if the Company shall have furnished any amendments or
supplements thereto), or arise out of or are based upon any omission or
alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein not misleading, and
will reimburse each Indemnified Underwriter Party for any legal or other
expenses reasonably incurred by such Indemnified Underwriter Party in
connection with investigating or defending any such loss, claim, damage,
liability or action as such expenses are incurred; provided, however, that
the Company and the Selling Shareholder will not be liable in any such case
to the extent that any such loss, claim, damage or liability arises out of
or is based upon an untrue statement or alleged untrue statement in or
omission or alleged omission from any of such documents in reliance upon
and in conformity with written information furnished to the Company by any
Underwriter through the Representatives specifically for use therein, it
being understood and agreed that the only information furnished by any
Underwriter consists of the information described as such in subsection (b)
below.
(b) Each Underwriter agrees, severally and not jointly, to indemnify
and hold harmless the Company and the Selling Shareholder, its directors,
officers [and employees] each affiliate of the Company or the Selling
Shareholder and each person, if any, who controls the Company or the
Selling Shareholder within the meaning of either Section 15 of the
Securities Act or Section 20 of the Exchange Act (each, an "Indemnified
Company Party"), from and against any and all losses, claims, damages and
liabilities (including, without limitation, any legal or other expenses
reasonably incurred by the Indemnified Company Party in connection with
defending or investigating any such action or claim) insofar as such
losses, claims, damages or liabilities (or actions or claims in respect
thereof) arise out of or are based on any untrue statement or alleged
untrue statement of a material fact contained in the Registration
Statement, the ADS Registration Statement or any amendment thereof, any
preliminary prospectus or the Prospectus (as amended or supplemented if the
Company shall have furnished any amendments or supplements thereto), or
arise out of or are based upon any omission or alleged omission to state
therein a material fact required to be stated therein or necessary to make
the statements therein not misleading, in each case to the extent, but only
to the extent, that such untrue statement, alleged untrue statement,
omission or alleged omission was made in reliance upon and in conformity
with written information furnished to the Company by such Underwriter
through the Representatives specifically for use in such Registration
Statement, ADS Registration Statement, preliminary prospectus, Prospectus
or amendment or supplement thereto. It is understood and agreed that the
only such information furnished by any Underwriter consists of (i) the
statements expressly set forth in the sixth paragraph of the cover page of
the Prospectus (being the paragraph beginning with "The underwriters expect
to deliver" and ending with "prior to the commencement of trading"), and
(ii) the table of allocations for the U.S. Underwriters and the
International Underwriters (appearing on page .) under the heading
"General" in the section entitled "Underwriters" in the Prospectus.
58
(c) In case any proceeding (including any governmental
investigation) shall be instituted involving any person in respect of which
indemnity may be sought pursuant to Section 9(a) and 9(b), such person (the
"indemnified party") shall promptly notify the person against whom such
indemnity may be sought (the "indemnifying party") in writing, but the
failure so to notify the indemnifying party (i) will not relieve it from
liability under Section 9(a) or Section 9(b) above unless and to the extent
it did not otherwise learn of such action and such failure results in the
forfeiture by the indemnifying party of substantial rights and defenses and
(ii) will not, in any event, relieve the indemnifying party from any
obligations to any indemnified party other than the indemnification
obligation provided in Section 9(a) or Section 9(b) above. The indemnifying
party, upon request of the indemnified party, shall retain counsel
reasonably satisfactory to the indemnified party to represent the
indemnified party and any others the indemnifying party may designate in
such proceeding and shall pay the fees and disbursements of such counsel
related to such proceeding. In any such proceeding, any indemnified party
shall have the right to retain its own counsel (including local counsel),
but the fees and expenses of such counsel shall be at the expense of such
indemnified party unless (i) the indemnifying party and the indemnified
party shall have mutually agreed to the retention of such counsel, (ii) the
named parties to any such proceeding (including any impleaded parties)
include both the indemnifying party and the indemnified party and
representation of both parties by the same counsel would be inappropriate
due to actual or potential differing interests between them, (iii) the
actual or potential defendants in or targets of any such proceeding include
both the indemnified party and the indemnifying party and the indemnified
party shall have reasonably concluded that there may be legal defenses
available to it and/or other indemnified parties which are different from
or additional to those available to the indemnifying party or (iv) the
indemnifying party shall not have employed counsel satisfactory to the
indemnified party to represent the indemnified party within, a reasonable
time after receipt of the foregoing request from the indemnified party. The
indemnifying party shall not, in respect of the legal expenses of any
indemnified party in connection with any proceeding or related proceedings
in the same jurisdiction, be liable for the fees and expenses of more than
one separate firm (in addition to any local counsel) for all such
indemnified parties and that all such fees and expenses shall be reimbursed
as they are incurred. Such firm shall be designated in writing by the
Global Coordinators, in the case of parties indemnified pursuant to Section
9(a), and by the Company, in the case of parties indemnified pursuant to
Section 9(b). The indemnifying party shall not be liable for any settlement
of any proceeding effected without its written consent, but if settled with
such consent or if there be a final judgment for the plaintiff, the
indemnifying party agrees to indemnify the indemnified party from and
against any loss or liability by reason of such settlement or judgment.
Notwithstanding the foregoing sentence, if at any time an indemnified party
shall have requested an indemnifying party to reimburse the indemnified
party for fees and expenses of counsel as contemplated by the second and
third sentences of this Section 9(c), the indemnifying party agrees that it
shall be liable for any settlement of any proceeding effected without its
written consent if (x) such settlement is entered into more than 30 days
after receipt by such indemnifying party of the aforesaid request and (y)
such indemnifying party shall not have reimbursed the indemnified party in
accordance with such request prior to the date of such settlement. No
indemnifying party shall, without the prior written consent of the
indemnified party, effect any settlement of any pending or threatened
proceeding in respect of which any indemnified party is or could have been
a party and indemnity could have been sought hereunder by such indemnified
party, unless such settlement includes an unconditional release of such
indemnified party from all liability on claims that are the subject matter
of such proceeding, and does not include a
59
statement as to, or admission of, fault, culpability or a failure to act by
or on behalf of an indemnified party.
(d) To the extent the indemnification provided for in Section 9(a)
or (b) is unavailable to an indemnified party or insufficient in respect of
any losses, claims, damages or liabilities referred to therein, then each
indemnifying party under such Section 9(a) or (b), in lieu of indemnifying
such indemnified party thereunder, shall contribute to the amount paid or
payable by such indemnified party as a result of such losses, claims,
damages or liabilities (i) in such proportion as is appropriate to reflect
the relative benefits received by the Company and the Selling Shareholder
on the one hand and the Underwriters on the other hand from the offering of
the ADSs (or Shares, in the event of an election by the Underwriters to
receive Shares in lieu of ADSs) or (ii) if the allocation provided by
clause 9(d)(i) above is not permitted by applicable law, in such proportion
as is appropriate to reflect not only the relative benefits referred to in
clause 9(d)(i) above but also the relative fault of the Company and the
Selling Shareholder on the one hand and of the Underwriters on the other
hand in connection with the statements or omissions that resulted in such
losses, claims, damages or liabilities, as well as any other relevant
equitable considerations. The relative benefits received by the Company and
the Selling Shareholder on the one hand and the Underwriters on the other
hand in connection with the offering the ADSs (or Shares, in the event of
an election by the Underwriters to receive Shares in lieu of ADSs) shall be
deemed to be in the same respective proportions as the net proceeds from
the offering the ADSs (or Shares, in the event of an election by the
Underwriters to receive Shares in lieu of ADSs) (before deducting expenses)
received by the Company and the Selling Shareholder and the total
underwriting discounts and commissions received by the Underwriters, in
each case as set forth in the table on the cover of the Prospectus, bear to
the aggregate the ADS Purchase Price (or Share Purchase Price, in the event
of an election by the Underwriters to receive Shares in lieu of ADSs). The
relative fault of the Company and the Selling Shareholder on the one hand
and of the Underwriters on the other hand shall be determined by reference
to, among other things, whether the untrue or alleged untrue statement of a
material fact or the omission or alleged omission to state a material fact
relates to information supplied by the Company or the Selling Shareholder
on the one hand or by the Underwriters on the other and the parties'
relative intent, knowledge, access to information and opportunity to
correct or prevent such statement or omission. The Underwriters' respective
obligations to contribute pursuant to this Section 9 are several in
proportion to the respective number of ADSs (or Shares, in the event of an
election by the Underwriters to receive Shares in lieu of ADSs) they have
purchased hereunder, and not joint.
(e) The Company, the Selling Shareholder and the Underwriters agree
that it would not be just or equitable if contribution pursuant to this
Section 9 were determined by pro rata allocation (even if the Underwriters
were treated as one entity for such purpose) or by any other method of
allocation that does not take account of the equitable considerations
referred to in Section 9(d). The amount paid or payable by an indemnified
party as a result of the losses, claims, damages and liabilities referred
to in Section 9(d) shall be deemed to include, subject to the limitations
set forth above, any legal or other expenses reasonably incurred by such
indemnified party in connection with investigating or defending any such
action or claim. Notwithstanding the provisions of this Section 9, no
Underwriter shall be required to contribute any amount in excess of the
amount by which the total price at which the ADSs (or Shares, in the event
of an election by the Underwriters to receive Shares in lieu of ADSs)
underwritten by it and distributed to the public were offered to the public
exceeds the amount of any damages that such Underwriter has otherwise been
required to pay by reason of such untrue or alleged untrue statement or
omission or
60
alleged omission. No person guilty of fraudulent misrepresentation (within
the meaning of Section 11(f) of the Securities Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation. The remedies provided for in this Section 9 are not
exclusive and shall not limit any rights or remedies which may otherwise be
available to any indemnified party at law or in equity.
(f) The indemnity and contribution provisions contained in this
Section 9 and the representations, warranties and other statements of the
Company and the Selling Shareholder contained in this Agreement shall
remain operative and in full force and effect regardless of (i) any
termination of this Agreement, (ii) any investigation made by or on behalf
of any Underwriter, any person controlling any Underwriter or any affiliate
of any Underwriter, or by or on behalf of the Company, its officers or
directors or any person controlling the Company or by or on behalf of the
Selling Shareholder or any person controlling the Selling Shareholder and
(iii) acceptance of and payment for any of the ADSs (or Shares, in the
event of an election by the Underwriters to receive Shares in lieu of
ADSs).
10. Termination. This Agreement may be terminated by the Global
Coordinators by notice given to and received by the Company and the Selling
Shareholder prior to delivery of and payment for the Firm ADSs if, prior to that
time, any of the events described in Sections 6(c) shall have occurred. If this
Agreement is terminated, such termination shall be without liability of any
party to any other party except as provided in Section 7(n); provided that the
indemnity and contribution agreements contained in Section 9, the waiver of
immunity contained in Section 12(d) and, if any ADSs or H Shares have been
purchased hereunder, the representations, warranties and comments of the Company
set forth in this Agreement, shall survive such termination and remain full
force and effect.
11. Effectiveness; Defaulting Underwriters.
(a) This Agreement shall become effective upon the later of (i)
execution and delivery hereof by the parties hereto and (ii) release of
notification of the effectiveness of the Registration Statement and the ADS
Registration Statement by the Commission.
(b) If, at the First Closing Time or any Optional Closing Time
any one or more of the Underwriters shall fail or refuse to purchase ADSs
that it has or they have agreed to purchase hereunder on such date, and the
aggregate number of ADSs which such defaulting Underwriter or Underwriters
agreed but failed or refused to purchase is not more than one-tenth of the
aggregate number of the ADSs to be purchased on such date, the other
Underwriters shall be obligated severally in the proportions that the
number of Firm ADSs set forth opposite their respective names in Schedule I
or Schedule II bears to the aggregate number of Firm ADSs set forth
opposite the names of all such non-defaulting Underwriters, or in such
other proportions as the Global Coordinators may specify, to purchase the
ADSs which such defaulting Underwriter or Underwriters agreed but failed or
refused to purchase on such date; provided that in no event shall the
number of ADSs that any Underwriter has agreed to purchase pursuant to this
Agreement be increased pursuant to this Section 11 by an amount in excess
of [one-tenth] of such number of ADSs without the written consent of such
Underwriter. If, at the First Closing Time, any Underwriter or Underwriters
shall fail or refuse to purchase Firm ADSs and the aggregate number of Firm
ADSs with respect to which such default occurs is more than one-tenth of
the aggregate number of Firm ADSs to be purchased, and arrangements
satisfactory to the Global Coordinators and the Company for the purchase of
such Firm ADSs are not made within 36 hours after such default, this
Agreement shall terminate without liability on
61
the part of any non-defaulting Underwriter or the Company. In any such case
either the Global Coordinators or the Company shall have the right to
postpone the First Closing Time, but in no event for longer than seven
days, in order that the required changes, if any, in the Registration
Statement and in the Prospectus or in any other documents or arrangements
may be effected. If, on any Optional Closing Time, any Underwriter or
Underwriters shall fail or refuse to purchase Optional ADSs and the
aggregate number of Optional ADSs with respect to which such default occurs
is more than one-tenth of the aggregate number of Optional ADSs to be
purchased, the non-defaulting Underwriters shall have the option to (i)
terminate their obligation hereunder to purchase Optional ADSs or (ii)
purchase not less than the number of Optional ADSs that such non-defaulting
Underwriters would have been obligated to purchase in the absence of such
default. Any action taken under this Section 11(b) shall not relieve any
defaulting Underwriter from liability in respect of any default of such
Underwriter under this Agreement.
(c) If this Agreement shall be terminated pursuant to Section 10
hereof, neither the Company nor the Selling Shareholder shall then be under
any liability to any Underwriter except as provided in Sections 7(n) and 9
hereof; but, if for any other reason ADSs or Shares are not delivered by or
no behalf of the Company and the Selling Shareholder as provided herein,
the Company and the Selling Shareholder pro rata (based on the number of
ADSs or Shares to be sold by the Company and the Selling Shareholder
hereunder), will reimburse the Underwriter through the Global Coordinators
for all out-of-pocket expenses approved in writing by the Global
Coordinators, including fees and disbursements of counsel, reasonably
incurred by the Underwriters in making preparations for the purchase, sale
and delivery of the ADSs not so delivered, but the Company and the Selling
Shareholder shall then be under no further liability to any Underwriter in
respect of the ADSs or Shares not so delivered except as provided in
Section 7(n) and 9 hereof.
12. Governing Law; Jurisdiction.
(a) This Agreement shall be governed by, and construed in accordance
with, the laws of the State of New York without regard to principles of
conflicts of laws.
(b) Except with regard to any Dispute (as defined in Section 13
below) submitted to arbitration by the Global Coordinators on behalf of any
Underwriter pursuant to Section 13 hereof, each of the parties hereto
hereby expressly and irrevocably (i) agrees that any legal suit, action or
proceeding arising out of or relating to this Agreement or the transactions
contemplated hereby may be instituted in any New York Court; (ii) waives,
to the fullest extent it may effectively do so, any objection which it may
now or hereafter have to the laying of venue of any such suit, action or
proceeding and any claim that any such proceeding brought in such a court
has been brought in an inconvenient forum; and (iii) submits to the
non-exclusive jurisdiction of such courts in any such suit, action or
proceeding, which submission shall not in any way limit an enforcement of
any judgment, decision or award in the courts of any jurisdiction where
such party has assets. Each of the Company and the Selling Shareholder
agrees that a final judgment in any such suit, action or proceeding shall
be conclusive and may be enforced in other jurisdictions by suit on the
judgment or in any other manner provided by applicable law. Each of the
Company and the Selling Shareholder hereby irrevocably waives any right to
invoke jurisdiction it may have to any court by virtue of the laws of the
PRC.
(c) Each of the Company and the Selling Shareholder has appointed CT
Corporation System, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ (the
"Process
62
Agent"), as its authorized agent to receive on its behalf service of copies
of the summons and complaints and any other process which may be served in
any suit, action or proceeding arising out of or relating to this Agreement
or the transactions contemplated hereby brought in such New York Court.
Such appointment shall be irrevocable to the extent permitted by applicable
law and subject to the appointment of a successor agent in The City of New
York on terms substantially similar to those contained in this Section 12
and reasonably satisfactory to the Joint Global Coordinators. If the
Process Agent shall cease to act as agent for services of process, the
Company and/or the Selling Shareholder, as the case may be, shall appoint,
without unreasonable delay, another such agent, and notify you of such
appointment. Each of the Company and the Selling Shareholder represents to
the Global Coordinators that it has notified the Process Agent of such
designation and appointment and that the Process Agent has accepted the
same in writing. Such service may be made by delivering a copy of such
process to each of the Company and the Selling Shareholder in care of the
Process Agent as the address specified above for the Process Agent and
obtaining a receipt therefor, and each of the Company and the Selling
Shareholder hereby authorizes and directs such Process Agent to accept such
service on its behalf. Each of the Company and the Selling Shareholder
represents and warrants that the Process Agent has agreed to act as said
agent for service of process, and agrees that service of process in such
manner upon the Process Agent shall be deemed in every respect effective
service of process upon the Company and the Selling Shareholder in any such
suit, action or proceeding.
(d) Each of the Company and the Selling Shareholder, in respect of
itself and its properties and revenues (and, to the extent it may lawfully
do so, in respect of the Subsidiaries and their properties and revenues),
expressly and irrevocably waives, any right of immunity to which it or they
may otherwise be entitled or become entitled, on the grounds of sovereignty
or otherwise (including any immunity from the jurisdiction of any court,
from service of process, from attachment prior to judgment or in aid of
execution or otherwise, from execution pursuant to a judgment or an
arbitral award, or from any other legal process in any jurisdiction,) or
claim thereto which may now or hereafter exist, and agrees not to assert
any such right or claim in any legal action, suit or proceeding arising out
of or relating to this Agreement or the transactions contemplated hereby.
Each of the Company and the Selling Shareholder hereby agrees that the
waiver in this provision is not subject to withdrawal in any jurisdiction
or under any statute, including the United States Foreign Sovereign
Immunities Act. The foregoing waiver shall constitute a present waiver of
immunity at any time any action is initiated against the Company or the
Selling Shareholder, as the case may be, with respect to this Agreement and
the transactions contemplated hereby.
(e) If the Company and/or the Selling Shareholder initiate
litigation on any Dispute or Disputes in the New York Courts, to the extent
that any Underwriter or any Global Coordinator is a defendant, the Global
Coordinators shall have sixty (60) days from service of a complaint (or an
amended complaint) in such action to elect to resolve the Dispute by
arbitration in accordance with Section 13 herein by sending written notice
of such election to the Company and/or Selling Shareholder. In the event
the Global Coordinators timely make such an election, the Company and the
Selling Shareholder agree to dismiss any suit brought by them on such
Disputes in the New York Courts and to resolve such Dispute(s) by
arbitration in accordance with Section 13 herein.
13. Dispute Resolution.
(a) Any dispute, controversy or claim arising out of or relating to
this Agreement (including any provision of any Schedule or Exhibit thereto)
or the
63
breach, termination or validity thereof ("Dispute") shall, upon the written
request ("Request") of the Global Coordinators on behalf of any
Underwriter, be finally settled by arbitration in accordance with the Rules
of Arbitration of the International Chamber of Commerce ("Rules") then in
effect, except as modified herein. The arbitration shall be held, and the
award shall be rendered, in Singapore, in the English language. There shall
be three arbitrators. The Company and the Selling Shareholder shall jointly
nominate one arbitrator. The Global Coordinators shall jointly nominate a
second arbitrator. The two party-appointed arbitrators shall have thirty
(30) days from the confirmation of the nomination of the second arbitrator
to agree on the nomination of a third arbitrator who shall serve as chair
of the arbitral tribunal. On the request of any party, any arbitrator not
timely nominated in accordance with this Agreement or the Rules, shall be
appointed by the International Court of Arbitration of the International
Chamber of Commerce.
(b) By agreeing to arbitration, the parties do not intend to deprive
any court of its jurisdiction to issue a pre-arbitral injunction,
pre-arbitral attachment or other order in aid of arbitration proceedings
and the enforcement of any award. Without prejudice to such provisional
remedies in aid of arbitration as may be available under the jurisdiction
of a national court, the arbitral tribunal shall have full authority to
grant provisional remedies and to award damages for the failure of any
party to respect the arbitral tribunal's orders to that effect.
(c) The parties hereby waive any rights of application or appeal to
any court or tribunal of competent jurisdiction (including without
limitation the courts of the PRC, Singapore and the United States) to the
fullest extent permitted by law in connection with any question of law
arising in the course of the arbitration or with respect to any award made,
except for actions relating to enforcement of the arbitration agreement or
an arbitral award and except for actions seeking interim or other
provisional relief in aid of arbitration proceedings in any court of
competent jurisdiction.
(d) Any monetary award shall be made and promptly payable in United
States dollars free of any tax, deduction or offset, and the arbitral
tribunal shall be authorized in its discretion to grant pre-award and
post-award interest at commercial rates. Any costs, fees, or taxes incident
to enforcing the award shall, to the maximum extent permitted by law, be
charged against the party resisting such enforcement. The arbitral tribunal
shall have the authority to award any remedy or relief proposed by the
claimant(s) or respondent(s) pursuant to this Agreement, including without
limitation, a declaratory judgment, specific performance of any obligation
created under this Agreement or the issuance of an injunction.
(e) The award shall be final and binding upon the parties as from
the date rendered, and shall be the sole and exclusive remedy between the
parties regarding any claims, counterclaims, issues, or accounting
presented to the arbitral tribunal. Judgment upon any award may be entered
and enforced in any court having jurisdiction over a party or any of its
assets. For the purpose of the enforcement of an award, the parties
irrevocably and unconditionally submit to the jurisdiction of a competent
court in any jurisdiction in which a party may have assets and waive any
defenses to such enforcement based on lack of personal jurisdiction or
inconvenient forum.
(f) This Agreement and the rights and obligations of the parties
shall remain in full force and effect pending the award in any arbitration
proceeding hereunder.
64
(g) All notices by one party to the other in connection with the
arbitration shall be in accordance with the provisions of Section 15
hereof.
(h) This arbitration agreement set forth in this Section 13 shall be
binding upon the parties, their successors and assigns.
14. Judgment Currency. If for the purposes of obtaining judgment in any
court it is necessary to convert a sum due hereunder into any currency other
than United States dollars, the parties hereto agree, to the fullest extent that
they effectively do so, that the rate of exchange used shall be the rate at
which in accordance with normal banking procedures the Global Coordinators could
purchase United States dollars with such other currency in The City of New York
on the business day preceding that on which final judgment is given. The
obligations of the Company and the Selling Shareholder in respect of any sum due
from it to any Underwriter shall, notwithstanding any judgment in a currency
other than United States dollars, not be discharged until the first business
day, following actual receipt by such Underwriter of any sum adjudged to be so
due in such other currency, on which (and only to the extent that) such
Underwriter may in accordance with normal banking procedures purchase United
States dollars with such other currency. If the United States dollars so
purchased are less than the sum originally due to such Underwriter hereunder,
the Company and the Selling Shareholder agree, jointly and severally, as a
separate obligation and notwithstanding any such judgment, to indemnify such
Underwriter against such loss. If the United States dollars so purchased are
greater than the sum originally due to such Underwriter hereunder, such
Underwriter agrees to pay to the Company or the Selling Shareholder, as the case
may be, an amount equal to the excess of the United States dollars so purchased
(based on amounts actually received) over the sum originally due to such
Underwriter hereunder.
15. Notices.
(a) In all dealings hereunder, the Global Coordinators shall
act on behalf of each of the Underwriters, and the parties hereto shall be
entitled to act and rely upon any statement, request, notice or agreement
on behalf of any Underwriter made or given by the Global Coordinators as
the representatives of the several Underwriters.
(b) All statements, requests, notices and agreements hereunder shall
be in writing, and if to the Underwriters shall be sufficient in all
respects if delivered or sent by registered mail, or by telex or facsimile
transmission promptly confirmed by a writing delivered or sent by
registered mail, to the Global Coordinators, in care of:
(i) China International Capital Corporation Limited
28th Floor, China World Tower 2
▇▇. ▇ ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇.▇.▇.
Attention: Equity Capital Markets
Facsimile No.: 8610-6505-1156;
(ii) Citigroup Global Markets Asia Limited
▇▇/▇▇/ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇
Attention: Equity Capital Markets
Facsimile No.: .;
(iii) Credit Suisse First Boston (Hong Kong) Limited
▇▇/▇, ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇
▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇: Legal & Compliance Department
Facsimile No.: .;
(iv) Deutsche Bank AG, Hong Kong Branch
55/F ▇▇▇▇▇▇ Kong Center
▇ ▇▇▇▇▇'▇ ▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇
Attention: Equity Capital Markets
Facsimile No.: .;
if to the Company shall be sufficient in all respects if
delivered or sent by registered mail, or by telex or facsimile
transmission promptly confirmed by a writing delivered or sent by
registered mail, to the Company at:
▇▇ ▇▇▇▇▇▇▇ ▇▇▇., ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇, P.R.C.,
Attention: .
Facsimile No.: 8610-8565-9999;
if to the Selling Shareholder shall be sufficient in all
respects if delivered or sent by registered mail, or by telex or
facsimile transmission promptly confirmed by a writing delivered or
sent by registered mail, to the Selling Shareholder at:
5 Guanyingyuan Xiqu, Xicheng District,
Beijing, P.R.C.,
Attention: .
Facsimile No.: (8610) .;
provided, however, that any notice to any Underwriter pursuant to
Section 9(c) hereof shall be delivered or sent by mail, telex, or facsimile
transmission to such Underwriter at its address, which address will be
supplied to the Company by the Global Coordinators on request.
16. Successors. This Agreement shall be binding upon, and inure
solely to the benefit of, the several Underwriters, and the Company and the
Selling Shareholder and, to the extent provided to Section 9 hereof, any Selling
Affiliate, the officers and directors of the Company, the Selling Shareholder
and each person who controls the Company, the Selling Shareholder or any
Underwriter and their respective heirs, executors, administrators, successors
and assigns, and no other person shall acquire or have any right under or by
virtue of this Agreement. No purchaser of any of the ADSs from any Underwriter
shall be deemed a successor or assign by reason merely or such purchase.
17. Counterparts. This Agreement may be signed in two or more
counterparts, each of which shall be an original, with the same effect as if the
signatures thereto and hereto were upon the same instrument.
18. Headings. The headings of the sections of this Agreement have
been inserted for convenience of reference only and shall not be deemed a part
of this Agreement.
66
Very truly yours,
CHINA LIFE INSURANCE COMPANY LIMITED
By:
------------------------------------
Name:
Title:
CHINA LIFE INSURANCE COMPANY
By:
------------------------------------
Name:
Title:
Accepted as of the date hereof:
China International Capital Corporation Limited
Citigroup Global Markets Inc.
Credit Suisse First Boston LLC
Deutsche Bank Securities Inc.
Acting severally on behalf of themselves and as attorney-in-fact for each
of the U.S. Underwriters named in Schedule I hereto.
By: China International Capital
Corporation Limited
By:
-----------------------------------
Name:
Title:
By: Citigroup Global Markets Inc.
By:
-----------------------------------
Name:
Title:
67
By: Credit Suisse First Boston LLC
By:
-----------------------------------
Name:
Title:
By: Deutsche Bank Securities Inc.
By:
-----------------------------------
Name:
Title:
China International Capital Corporation Limited
Citigroup Global Markets Limited
Credit Suisse First Boston (Hong Kong) Limited
Deutsche Bank AG, Hong Kong Branch
Acting severally on behalf of themselves and as attorney-in-fact for each
of the International Underwriters named in Schedule II hereto.
By: China International Capital
Corporation Limited
By:
-----------------------------------
Name:
Title:
By: Citigroup Global Markets Limited
By:
-----------------------------------
Name:
Title:
By: Credit Suisse First Boston
(Hong Kong) Limited
By:
-----------------------------------
Name:
Title:
68
By: Deutsche Bank AG, Hong Kong Branch
By:
-----------------------------------
Name:
Title:
China International Capital Corporation Limited
as Global Coordinator
By:
-----------------------------------
Name:
Title:
Citigroup Global Markets Asia Limited
as Global Coordinator
By:
-----------------------------------
Name:
Title:
Credit Suisse First Boston (Hong Kong) Limited
as Global Coordinator
By:
-----------------------------------
Name:
Title:
Deutsche Bank AG, Hong Kong Branch
as Global Coordinator
By:
-----------------------------------
Name:
Title:
69
SCHEDULE I
U.S. UNDERWRITERS
Number of Firm ADSs
Underwriter To Be Purchased
-------------------------------------------------------- ---------------------
China International Capital Corporation Limited......... .
Citigroup Global Markets Inc............................ .
Credit Suisse First Boston LLC.......................... .
Deutsche Bank Securities Inc............................ .
Total U.S. Firm ADSs................................. .
I-1
SCHEDULE II
INTERNATIONAL UNDERWRITERS
Number of Firm ADSs
Underwriter To Be Purchased
-------------------------------------------------------- ---------------------
China International Capital Corporation Limited......... .
Citigroup Global Markets Limited........................ .
Credit Suisse First Boston (Hong Kong) Limited.......... .
Deutsche Bank AG, Hong Kong Branch...................... .
Total International Firm ADSs........................ .
II-1
SCHEDULE III
CORPORATE INVESTORS
CORPORATE INVESTOR AGREEMENTS
Number of H Shares
A. Name of Corporate Investor to Be Purchased
----------------------------------------------------- --------------------
B. Corporate Investor Agreements
-----------------------------------------------------
III-1
SCHEDULE IV
SUBSIDIARIES AND COMPANY PERCENTAGE OWNERSHIP
Company Percentage
Name of PRC Subsidiary Ownership (%)
-------------------------------------------------------- ---------------------
Company Percentage
Name of Non-PRC Subsidiary Ownership (%)
-------------------------------------------------------- ---------------------
IV-1
SCHEDULE V
RESTRUCTURING DOCUMENTS AND RESTRUCTURING DOCUMENTS
1. No. 2576 File, issued by the Administrative Office of the State Council on
January 3, 2003, approving the Restructuring Plan in principle
2. China Life Insurance Company's Restructuring Plan in connection with the
Establishment of China Life Insurance Company Limited and its Domestic and
Overseas Listings
3. CIRC Bao ▇▇▇▇ ▇▇ [2003] No.88, issued on May 16, 2003, Approval of the
Restructuring of China Life Insurance Company;
4. China Securities Supervisory Committee Guo He Han [2002] No.12, issued on
January 16, 2003, Acceptance of the Application by China Life Insurance
Company for Overseas Listing;
5. Ministry of Finance ▇▇▇ ▇▇▇ [2003] No.72, issued on June 24, 2003, Approval
of the Assets Valuation Review of China Life Insurance Company for the
Establishment of the Company limited by Shares;
6. Ministry of Finance ▇▇▇ ▇▇▇ [2003] No.77, issued on June 24, 2003, Approval
on certain Matters Regarding the Management of State Share Ownership in
China Life Insurance Company Limited;
7. CIRC Bao ▇▇▇▇ ▇▇ [2003] No.115, issued on June 27, 2003, Approval of the
Establishment of China Life Insurance Company Limited;
8. CIRC Bao ▇▇▇▇ ▇▇ [2003] No. 147, issued on August 21, 2003, Approval of the
Restructuring and IPO of China Life Insurance Company;
9. CIRC Bao ▇▇▇▇ ▇▇ [2003] No. 190, issued on September 30, 2003, Approval of
the Transformation of China Life Insurance Company Limited into a Overseas
Listed Company;
10. MOF & State Administration of Tax Cai Shui [2003] No. 216, issued on
October 10, 2003, Notice on Certain Matters Relating to the Standard
Applicable to China Life and Salary Pre-tax Deduction;
11. MOF Cai ▇▇▇ ▇▇▇ [2003] No. 100, issued on October 15, 2003, Approval of
China Life Insurance (Group) Company's Application to Set Up Co-Management
Funds;
12. CIRC ▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇▇ [2003] No. 771, issued on October 22, 2003, Approval
of Establishment of China Life Asset Management Company;
13. MOF Caijin Bianhan [2003] No. 298, issued on October 21, 2003, Approval Re
Certain Matters of State Owned Shares Allocation in China Life Insurance
Company Limited;
14. National Social Security Fund Council, shebao ▇▇▇▇▇ ▇▇▇▇▇ [2003] No. 48,
issued on October 30, 2003, [Chinese Characters]
V-1
15. CSRC Zhengjian Guohezi [2003] No. 35, issued on November 3, 2003, Approval
of Overseas Offering of Foreign-invested Shares by China Life Insurance
Company Limited;
16. Restructuring Agreement, entered into between China Life and CLIC on
September 30, 2003;
17. Policy Management Agreement, entered into between China Life and CLIC on
September 30, 2003;
18. Asset Management Agreement, entered into between China Life and China Life
Insurance AMC on November 27, 2003;
19. Asset Management Agreement, entered into between CLIC and China Life
Insurance AMC on November 27, 2003;
20. Property Leasing Agreement, entered into between China Life and CLIC on
September 30, 2003;
21. Trademark Agreement, entered into between China Life and CLIC on September
30, 2003;
22. Non-Competition Agreement, entered into between China Life and CLIC on
September 30, 2003;
23. Article of Association of China Life;
24. Insurance License, issued by CIRC on June 27, 2003 to China Life;
25. Business License (No. 1000001003796), issued by SAIC on June 30, 2003 to
China Life.
A-2
EXHIBIT A
---------
FORM OF U.S. AND INTERNATIONAL COMFORT LETTERS
A-1