Exhibit 4(qq)
BLOCK TRADE AGREEMENT
Pricing Terms and Closing Arrangements
Seller: Asian Motion Limited (BVI Subsidiary)
450,000,000 ordinary shares ("Shares") of Pacific Century Premium Developments
Limited. (the "Issuer"):
Per Share purchase price: HK$2.48
Aggregate Purchase Price: HK$ 1,116,000,000 Closing Time: 10:00 am (Hong
Kong time) 3 December 2004
The Seller agrees with Deutsche Bank AG, Hong Kong branch ("Deutsche Bank") that
the Seller shall sell and Deutsche Bank shall purchase, the Shares on the terms
and subject to the conditions set forth in this Agreement.
Settlement in relation to the Shares will be effected either (i) on a delivery
versus payment basis in the Central Clearing and Settlement System ("CCASS")
operated by Hong Kong Securities Clearing Company Limited or (ii) (to the extent
any transfer of the Shares will not be settled through CCASS) by (a) the
delivery of the share certificate(s) in respect of the Shares by the Seller to
Deutsche Bank together with the relevant instruments of transfer duly executed
by the Seller no later than 4:00 p.m. on 1 December 2004 and (b) the payments by
Deutsche Bank to the Seller in cleared funds the aggregate purchase price for
the Shares at or before the Closing Time to such bank account as may be notified
by the Seller to Deutsche Bank.
Closing Conditions, Representations and Warranties and Indemnity
Deutsche Bank's obligations under this Agreement are subject to the conditions
specified in Annex I, and the Seller shall indemnify Deutsche Bank to the extent
specified in Annex I.
The Seller makes the representations and warranties and provides the
undertakings specified in Annex II.
Deutsche Bank makes the representations and warranties and provides the
undertakings specified in Annex II
Undertakings
The Seller undertakes with Deutsche Bank that it will bear and pay any Seller's
stamp or other duties or taxes on or in connection with the sale, distribution
and transfer and delivery of the Shares to Deutsche Bank.
Notices, Rights of Third Parties, Governing Law and Counterparts
No statement, notice or waiver under, or amendment to, this Agreement shall be
valid unless it is in writing and, in the case of amendments, executed by each
party. Notices shall be delivered by facsimile as indicated below.
Deutsche Bank AG, Hong Kong Branch
Fax number: ▇▇▇▇ ▇▇▇▇ ▇▇▇▇
Attn: ▇▇▇▇▇ ▇▇▇▇▇
Seller
Fax number: ▇▇▇▇ ▇▇▇▇ ▇▇▇▇
Attn: the Company Secretary
This Agreement shall be binding upon, and inure to the benefit of, Deutsche Bank
and the Seller and their respective successors and permitted assigns and, to the
extent provided herein, their directors, officers, employees and controlling
persons and no other person shall acquire or have any rights under or by virtue
of this Agreement, except as otherwise specified herein. Time shall be of the
essence in this Agreement, and neither party may assign any of its rights or
obligations under this Agreement to any other party.
This Agreement shall be governed by and construed in accordance with the laws of
Hong Kong, and the parties agree that the courts of Hong Kong are the most
appropriate and convenient courts to hear any dispute under or arising out of
this Agreement and, accordingly, submit to the exclusive jurisdiction of such
courts. This Agreement may be executed by either of the parties hereto in any
number of counterparts, each of which shall be deemed to be an original, but all
such counterparts shall together constitute one and the same instrument.
DEUTSCHE BANK AG, HONG KONG BRANCH
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇▇▇
Title:
Date: 30 November 2004
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇▇▇▇▇
Title: Managing director
Date: 30 November 2004
ASIAN MOTION LIMITED
By: /s/ ▇▇▇▇ ▇▇▇ ▇▇▇
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Name: ▇▇▇▇ ▇▇▇ ▇▇▇
Title: Director
Date: 30th November, 2004
2
Annex I
Conditions
The obligations of Deutsche Bank under this Agreement are subject to the
conditions set forth below. Deutsche Bank may waive, in its sole discretion, any
of these conditions by written notice to the Seller.
Delivery of the Shares. The Shares shall be delivered at the Closing Time in
accordance with the terms of this Agreement.
Accuracy of Representations and Warranties. Each of the representations and
warranties of the Seller shall have been correct when given or made and shall be
correct in all material respects at the Closing Time as though it had been given
or made at the Closing Time.
No Force Majeure Event Has Occurred. None of the following events shall have
occurred between the date of this Agreement and the Closing Time: (A) a
suspension of trading generally on the Hong Kong Stock Exchange, or a limitation
on prices for the Shares or securities of the Issuer on the Hong Kong Stock
Exchange, (B) any outbreak or escalation of hostilities or declaration of war or
national emergency or other national or international calamity or crisis or
change in economic or political conditions if the effect of such outbreak,
escalation, declaration, emergency, calamity, crisis or change on the financial
markets of Hong Kong would, in Deutsche Bank's sole judgement, make it
impracticable or inadvisable to market the Shares or to enforce contracts for
the sale of the Shares, or (C) the declaration of a banking moratorium by the
Hong Kong or the United States authorities.
In the event that Seller shall not have delivered the Shares as required, or any
of the above conditions shall not have been satisfied (or waived in writing), by
or at the Closing Time, Deutsche Bank shall not be bound to proceed with any
purchase of the Shares and this Agreement shall cease to have effect, except for
the liability of the Seller arising before or in relation to such termination
and as otherwise provided herein, provided that, if the Seller delivers less
than all of the Shares by or at the Closing Time, Deutsche Bank shall also have
the option to effect the purchase of any number of such Shares as are delivered
at the agreed purchase price per share, but such partial purchase shall not
relieve the Seller from liability for its default with respect to the Shares not
purchased.
Indemnification
The Seller agrees to indemnify and hold harmless Deutsche Bank against any
losses, claims, damages, demands or liabilities (together "Losses") to which
Deutsche Bank may become subject in so far as such Losses, (or actions in
respect hereof) relate to or arise out of any breach or alleged breach of the
terms of this Agreement or as a result of any of the representations and
warranties of the Seller being, or alleged to be, untrue or misleading in any
respect. This indemnity shall not, however, apply to the extent that it is
judicially determined that such losses, claims, damages or liabilities resulted
primarily from Deutsche Bank's default or gross negligence. The Seller agrees to
reimburse Deutsche Bank promptly for any duly itemized expenses (including
reasonable counsel's fees) reasonably incurred by Deutsche Bank in connection
with investigating or defending any such action or claim. The indemnification
obligations of the Seller are in addition to any liability the Seller may
otherwise have and shall extend, upon the same terms and conditions, to the
respective directors, officers, employees and controlling persons of Deutsche
Bank. The indemnification obligations of the Seller shall survive termination of
this Agreement but for the avoidance of doubt shall not extend to Losses
incurred in connection with a claim by the Seller itself against Deutsche Bank.
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Representations, Warranties and Undertakings of the Seller
The Seller represents and warrants to, and agrees with, Deutsche Bank that:
This is a Valid and Binding Agreement. This Agreement has been duly authorized,
executed and delivered by the Seller and constitutes a valid and legally binding
agreement of the Seller.
Regulation S. The Seller reasonably believes that there is no "substantial U.S.
market interest", as defined in Regulation S under the Securities Act, with
respect to any equity securities of the Issuer. None of the Seller, its
affiliates or any persons acting on its behalf (other than Deutsche Bank, as to
whom no representation is made) have engaged or will engage in any directed
selling efforts, as defined in Regulation S under the Securities Act, with
respect to the Shares. None of the Seller, its affiliates or any persons acting
on its behalf (other than Deutsche Bank, as to whom no representation is made),
directly or indirectly, (a) has made or will make offers or sales of any
security or deliver any security, (b) has solicited or will solicit offers to
buy any security or (c) otherwise has negotiated or will negotiate in respect of
any security, in any case under circumstances that would require the
registration of the Shares under the Securities Act. The Seller, its affiliates
and any persons acting on its behalf have and will comply with the offering
restrictions requirement of Regulation S under the Securities Act.
Absence of Further Requirements. No filing with, or authorization, approval,
consent, license, order, registration, qualification or decree, whether
governmental, corporate or other, is necessary or required for the execution and
delivery by the Seller of this Agreement, for the performance of the Seller's
obligations hereunder, in connection with the offering, issuance or sale of the
Shares hereunder or for the consummation of the transactions contemplated by
this Agreement, except such as have been already obtained or made and are in
full force and effect.
Absence of Defaults and Conflicts. The execution, delivery and performance of
this Agreement and the consummation of the transactions contemplated herein do
not and will not, whether with or without the giving of notice or passage of
time or both, conflict with or constitute a breach of, or default under, any
applicable law, statute, rule, regulation, judgment, order, writ or decree of
any government, government instrumentality or court, domestic or foreign, having
jurisdiction over the Seller or any of its assets, properties or operations.
Seller Will Transfer Good and Valid Title to the Shares, Free of Restrictions.
The Seller has good and valid title to the Shares to be delivered at Closing
Time free and clear of liens, encumbrances, equities or claims; and upon
delivery of the Shares to Deutsche Bank, pursuant to this Agreement, good and
valid title to the Shares, free and clear of liens, encumbrances, equities or
claims, will pass to Deutsche Bank.
The Seller has not Manipulated the Price of any of the Issuer's Securities.
Neither the Seller nor anyone acting on its behalf has made or will make bids
for, or purchases of, any security (A) for the purpose of creating actual or
apparent trading in, or of raising the price of, any security of the Issuer or
(B) which are designed to cause, have caused, or might reasonably be expected to
cause, manipulation of the price of any security of the Issuer.
The Seller is not Violating "▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇" Laws. The Seller does not have any
non-public information concerning the Issuer that is material or price-sensitive
and the sale of the Shares hereunder will not constitute a violation by such
Seller of any applicable law prohibiting "insider dealing".
No Material Adverse Change. That to the best of the Seller's knowledge and
belief there has been no material adverse change or any development involving a
prospective material adverse change in the condition (financial or otherwise) of
the Issuer since 30 September 2004 and that is not described in the Issuer's
most recent annual report or subsequent releases of information to the public.
No Litigation. That to the best of the Seller's knowledge and belief the Issuer
is not involved in any material litigation or arbitration proceedings relating
to claims or amounts or in breach of any agreement which is material in the
context of the sale of the Shares nor so far as the Seller is aware is any such
litigation or arbitration pending or threatened.
The Seller undertakes to immediately notify Deutsche Bank in writing if any of
the above representations or warranties was not correct when made or ceases to
be correct at the Closing Time.
Representations, Warranties and Undertakings of Deutsche Bank
Deutsche Bank represents and warrants to, and agrees with, the Seller that:
This is a Valid and Binding Agreement. This Agreement has been duly authorized,
executed and delivered by Deutsche Bank and constitutes a valid and legally
binding agreement of Deutsche Bank
Deutsche Bank will comply with all applicable laws in connection with the
purchase of the Shares.
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