PLACEMENT AGREEMENT
12 November 2007
ORASCOM TELECOM EURASIA LIMITED
NILE CITY TOWERS, SOUTH TOWER
27TH FLOOR
CORNISH EL NILE, RAMLET ▇▇▇▇▇▇▇
CAIRO, EGYPT
Dear Sirs:
Orascom Telecom Eurasia Limited (the "Selling Shareholder") is a company
incorporated in Malta with limited liability and having its registered address
at ▇▇▇▇▇ ▇, ▇▇, ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, Ta' Xbiex, MSD11, Malta hereby
agrees that, subject to the terms and conditions contained herein, the Selling
Shareholder will sell up to 94,193,000 of ordinary shares, with a par value
HK$0.25 per share (all ordinary shares are collectively referred to as the
"Shares"), of ▇▇▇▇▇▇▇▇▇ Telecommunications International Limited, a company
organized under the laws of the Cayman Islands (the "Company"), and Citigroup
Global Markets Asia Limited ("Citi" or the "Placement Agent") will act as the
Selling Shareholder's sole and exclusive agent and use its best efforts to
procure purchasers for such 94,193,000 Shares (the "Placing"). The Shares to be
offered under this Placement Agreement are referred to herein as the "Offered
Shares". All the Offered Shares are listed on The Stock Exchange of Hong Kong
Limited (the "Stock Exchange").
The Selling Shareholder agrees to sell and the Placement Agent agrees to act as
the Selling Shareholder's agent and use its best efforts to procure purchasers
for the Offered Shares at a price per Offered Share of HK$10.70 (the "Purchase
Price"). The Selling Shareholder hereby acknowledges that the Placement Agent
may at its sole discretion procure any member within the group of companies of
the Placement Agent as purchaser(s) for any of the Offered Shares at the
Purchase Price.
1. Selling Shareholder's Representations and Warranties. The Selling
Shareholder represents and warrants to, and agrees with the Placement Agent
that:
(a) (i) the Selling Shareholder owns the number of Shares of the Company
set forth opposite its name on Schedule A hereto, (ii) to the Selling
Shareholder's knowledge, the Offered Shares have been duly and validly
authorized and issued, are fully paid up and non-assessable, and rank
pari passu in all respects with the other issued Shares and (iii) were
allotted and issued by the Company more than six months prior to the
date hereof;
(b) this Placement Agreement has been duly authorized, executed and
delivered by the Selling Shareholder and is enforceable against the
Selling Shareholder in accordance with its own terms;
(c) the Selling Shareholder is duly incorporated and validly existing
under the laws of the place of its incorporation and has full right,
authority and power to enter into and perform its obligations under
this Placement Agreement and to sell, assign, transfer and deliver the
Offered Shares to the Placement Agent for transfer to the purchasers
procured by the Placement Agent;
(d) the Selling Shareholder has, and immediately prior to the Closing Date
(as defined herein) will have, good and valid title to the Offered
Shares, free and clear of all liens, encumbrances or claims; upon
delivery of such Offered Shares, good and valid title thereto, free
and clear of all liens, encumbrances or claims, will be transferred to
the purchasers procured by the Placement Agent;
(e) no consent, approval, authorization, or order of, or filing with, any
governmental agency or body, any court, shareholder of the Company or
any other third party is required to be obtained or made by such
Selling Shareholder for the consummation of the transactions
contemplated by this Placement Agreement in connection with the sale
of the Offered Shares, other than those consents, approvals and
authorizations that have been obtained which consents, approvals and
authorizations shall remain valid until Closing;
(f) the execution of this Placement Agreement, the offer, sale and
delivery by the Selling Shareholder of the Offered Shares and the
consummation of the transactions contemplated by this Placement
Agreement do not conflict with or result in a breach or violation of
any of the terms or provisions of, require any third party consent or
constitute a default under any indenture, mortgage, deed of trust,
loan agreement or other agreement or instrument, decree, regulation or
law to which the Selling Shareholder is a party or by which the
Selling Shareholder is bound or to which any of the property or assets
of the Selling Shareholder is subject, or any of the provisions of the
Articles of Association (or similar instrument) of the Selling
Shareholder or any statute or any order, law, rule or regulation,
judgment, order or decree of any court, government or governmental
agency or body having jurisdiction over the Selling Shareholder or the
property or assets of the Selling Shareholder or violation by the
Selling Shareholder or its representatives on the board of directors
of the Company of the Rules Governing the Listing of Securities on the
Stock Exchange or any of the internal policies or guidelines of the
Company or the Securities and Futures Ordinance (Cap.571 of the Laws
of Hong Kong) (the "SFO"), except to the extent that any breach or
violation of any loan
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agreement or other agreement (but not any indenture, mortgage, deed of
trust, decree, regulation or law) would not result in a material
adverse change, in or affecting the business, assets or property of
the Selling Shareholder;
(g) other than Hong Kong stamp tax of as set forth in Section 3(a)(ii), no
stamp or other issuance or transfer taxes or duties, and no indirect
taxes or duties are payable by the purchasers procured by the
Placement Agent or the Placement Agent, as the case may be, to Hong
Kong or any political subdivision or taxing authority thereof or
therein in connection with the sale and delivery of the Offered
Shares;
(h) neither the Selling Shareholder nor any of its representatives on the
board of directors of the Company (i) is in possession or aware of any
material or "price sensitive" information (including, without
limitation, any information regarding any changes in the business and
prospects of the Company or any adverse change or prospective adverse
change in the condition of, or any actual, pending or threatened
litigation, arbitration or similar proceeding involving, the Company)
that is not described in the Company's most recent annual report or
subsequent public information releases (the "Company Information") and
(ii) has been and will be in contravention of Part XIV of the SFO or
other applicable law or regulations prohibiting "insider dealing" in
securities in connection with the offer and sale of the Offered
Shares. The Selling Shareholder has read the Company Information and,
to the best of the Selling Shareholder's knowledge, it does not
include any untrue statement of a material fact or omit to state any
material fact necessary in order to make the statements therein not
misleading. The Company, to the knowledge of the Selling Shareholder,
is in compliance with the rules and regulations, including the
reporting requirements, of Hong Kong and the United States;
(i) the offer and sale of the Offered Shares in the manner contemplated by
this Placement Agreement will be exempt from the registration
requirements of the U.S. Securities Act of 1933, as amended
("Securities Act");
(j) neither the Selling Shareholder, nor any of its affiliates or any
person acting on its or their behalf has engaged or will engage in any
directed selling efforts (as such term is defined in Regulation S
under the Securities Act ("Regulation S")) in connection with the
offer and sale of the Offered Shares, and all such persons have
complied and will comply with the offering restrictions requirement of
Regulation S to the extent applicable to the offer and sale of the
Offered Shares; provided that this representation shall not be deemed
to be made in respect of actions taken by the Placement Agent
regarding the Offered Shares;
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(k) neither the Selling Shareholder nor its affiliates nor any persons
acting on its or their behalf has engaged in or will engage in any
form of general solicitation or general advertising (as those terms
are used in Regulation D promulgated under the Securities Act) with
respect to offers or sales of the Offered Shares in the United States;
(1) the Company is a Foreign Issuer (as that term is defined in Rule 902
of Regulation S) and the Selling Shareholder reasonably believes that
on the commencement of the offering of the Offered Shares there was no
Substantial U.S. Market Interest (as that term is defined in Rule 902
of Regulation S) in the Offered Shares;
(m) neither the Selling Shareholder nor any of its affiliates nor any
person acting on its or their behalf has sold, offered for sale or
solicited an offer to buy or otherwise negotiated or will sell, offer
for sale or solicit an offer to buy or otherwise negotiate in respect
of any security which would be integrated with the sale of the Offered
Shares that would require registration of any of the Offered Shares
under the Securities Act;
(n) the Company is not, and as a result of the sale of the Offered Shares
contemplated hereby will not be, subject to regulation as an
"investment company" as defined under the United States Investment
Company Act of 1940, as amended;
(o) the Shares are listed on The New York Stock Exchange;
(p) neither the Selling Shareholder nor any of its affiliates nor any
person acting on its or their behalf has or will have, directly or
indirectly, bid for, purchased or attempted to induce any person to
bid for or purchased any Shares or any securities which may, in the
whole or in part, affect the value of the Shares;
(q) none of the Selling Shareholder, any of its subsidiaries or any
director, officer, agent, employee or affiliate of the Selling
Shareholder or any of its subsidiaries is currently subject to any
U.S. sanctions administered by the Office of Foreign Assets Control of
the U.S. Department of the Treasury ("OFAC"); and the Selling
Shareholder will not directly or indirectly use (or authorize or
enable others to use) the proceeds of the offering of the Offered
Shares hereunder, or lend, contribute or otherwise make available such
proceeds to any subsidiary, joint venture partner or other person or
entity, for the purpose of financing or otherwise furthering the
activities of any person subject to any U.S. sanctions administered by
OFAC;
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(r) none of the Selling Shareholder, any of its subsidiaries or any
director, officer, agent, employee or affiliate of the Selling
Shareholder or any of its subsidiaries does any business with
countries, entities or persons subject to any U.S. sanctions
administered by the OFAC, or to 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;
(s) all statements of fact contained in any Announcement (as defined in
Section "Announcements" below) with respect to the Selling Shareholder
are true and accurate in all material respects, and are not misleading
in any material respect, and there are no facts or matters which are
not disclosed in the Announcement the omission of which makes the
Announcement misleading in any material respect and all statements and
expressions of opinions, intention or expectation therein are made on
reasonable grounds (after due and proper consideration) and are fairly
based and honestly held and the Selling Shareholder does not disagree
in any material respect with any such statements or expressions;
(t) the Selling Shareholder does not have rights to a claim of sovereign
immunity with respect to or arising from its obligations to the
Placement Agent herein; and
(u) the Selling Shareholder has the power to submit, and pursuant to
Section 11 of this Placement Agreement, has legally, validly,
effectively and irrevocably submitted, to the jurisdiction of the
courts of Hong Kong, and has the power to designate, appoint and
empower, and pursuant to Section 11 of this Placement Agreement, has
legally, validly and effectively designated, appointed and empowered,
an agent for service of process in any suit or proceeding based on or
arising under this Placement Agreement in the courts of Hong Kong.
1A. Placement Agent's representations and warranties
1A.1 The Placement Agent warrants to the Selling Shareholder and acknowledges
and undertakes that as far as it is aware:
1A.1.1 neither it nor any of its affiliates, nor any person acting on its or
their behalf, has engaged or will engage in any form of "general solicitation"
or "general advertising" (as those terms are used in Rule 502(c) under the
Securities Act) in connection with any offer or sale of the Offered Shares in
the United States;
1A.1.2 neither it nor any of its affiliates, nor any person acting on its or
their behalf, has engaged or will engage in any directed selling efforts (as
defined in Regulation S) with respect to Offered Shares offered or sold outside
the United States in reliance on Regulation S;
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1A.1.3 neither it nor any of its affiliates nor any person acting on its or
their behalf has offered or sold, and will not offer or sell, and neither has
procured nor will procure purchasers to purchase or procure, any Offered Shares
as part of their distribution except in accordance with Regulation S or in
accordance with an exemption from the registration requirements of the
Securities Act, it being understood that any offeree of or purchaser of Offered
Shares which is located in the United States or is a US Person shall be
reasonably believed to be a qualified institutional buyers as defined in the
U.S. Securities Exchange Act of 1934, as amended (the "Exchange Act"); and
1A.1.4 it has and will not take any action in any jurisdiction that would permit
a public offering of the Offered Shares.
2. Closing.
(a) The Placement Agent shall inform the Selling Shareholder in writing of
the number of Offered Shares placed by the Placement Agent under this
Placement Agreement (the "Placed Shares") by 11 p.m. on 12 November
2007 (Hong Kong local time). Completion of the sale and purchase of
the Placed Shares shall take place on 15 November 2007 (the "Closing
Date"), or such other date as the Selling Shareholder and the
Placement Agent may agree in writing. Completion of the transfer of
the Placed Shares shall take place in CCASS on a free of payment
basis. At or before 10:30 a.m. on the Closing Date, the Selling
Shareholder shall procure that its designated CCASS participant inputs
free of payment delivery instructions in CCASS to deliver the Placed
Shares on the Closing Date in accordance with this Placement Agreement
and the General Rules and the Operational Procedures to the CCASS
stock accounts of the relevant CCASS participant(s) of the Placement
Agent as provided to the Selling Shareholder by the Placement Agent
prior to the Closing Date. As soon as practicable after the date of
this Placement Agreement or otherwise in accordance with the rules of
the Stock Exchange, Citi may, in its sole discretion, cause the sale
and purchase of the Placed Shares to be input into the Automatic Order
Matching System as operated by the Stock Exchange.
(b) The Selling Shareholder shall procure that the Placed Shares delivered
at the Closing Date in accordance with Section 2(a) shall be free from
all liens, charges and encumbrances, and together with all rights
attaching to them as at the date of this Placement Agreement,
including the right to receive all dividends declared, made or paid on
or after the date of this Placement Agreement.
(c) Against compliance by the Selling Shareholder with its obligations
pursuant to Sections 2(a) and 2(b) and subject to Section 6, the
Placement Agent shall, on the Closing Date, make or procure the
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making of payment to the Selling Shareholder in Hong Kong dollars of
the aggregate Purchase Price of the Placed Shares (less the
commissions and expenses payable by the Selling Shareholder referred
to in Section 3), the payment of which shall constitute a complete
discharge of the Placement Agent's obligations to act as the Selling
Shareholder's agent to use its best efforts to procure purchasers for
the Offered Shares hereunder. Such payment shall be made for value on
the Closing Date and to such bank account held with a leading bank in
Hong Kong as may be notified by the Selling Shareholder to the
Placement Agent at least one business day before the Closing Date.
3. Fees and Commissions.
(a) In consideration of the agreement by the Placement Agent to act as the
Selling Shareholder's agent and use its best efforts to procure
purchasers for the Offered Shares and to procure the payment for the
Placed Shares, the Selling Shareholder shall pay to the Placement
Agent the following:
(i) a commission:
(A) in the event that the number of Offered Shares placed by the
Placement Agent under this Placement Agreement is less than
94,193,000 Shares, of 1% of the aggregate Purchase Price for
the Placed Shares, which amounts the Placement Agent is
authorised to deduct in accordance with sub-section 3(c)
below, from the payments to be made by it to the Selling
Shareholder, or
(B) in the event that the number of Offered Shares placed by the
Placement Agent under this Placement Agreement is equal to
94,193,000 Shares, of HK$22,791,588.50, which amounts the
Placement Agent is authorised to deduct in accordance with
sub-section 3(c) below, from the payments to be made by it
to the Selling Shareholder;
(ii) stamp duty at the rate of HK$1.00 per HK$1,000 on the aggregate
Purchase Price for the Placed Shares, which amounts the Placement
Agent is hereby authorized to deduct in accordance with
sub-section 3(c) below, from the payments to be made by it to the
Selling Shareholder for the purposes of paying on the Selling
Shareholder's behalf such duty; and
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(iii) transaction levy levied by the Securities and Futures Commission
of Hong Kong ("SFC") at the prevailing applicable rate (0.004%)
and Stock Exchange trading fee at the prevailing applicable rate
(0.005%) on the aggregate Purchase Price for the Placed Shares,
which amounts the Placement Agent is hereby authorized to deduct
in accordance with sub-section 3(c) below from the payments to be
made by it to the Selling Shareholder for the purposes of paying
on the Selling Shareholder's behalf such levy and trading fee.
(b) The Placement Agent and the Selling Shareholder shall each bear its
respective own legal costs and all other out-of-pocket expenses
relating to the transactions contemplated under this Placement
Agreement.
(c) The Placement Agent is hereby authorized to deduct the commissions and
expenses referred to in Sections 3(a)(i) - (iii) from the proceeds
payable to the Selling Shareholder solely for the purposes specified
therein (where applicable).
(d) All payment to be made by the Selling Shareholder pursuant to this
Clause 3 shall be made in full without any set-off, deduction or
withholding whatsoever. In the event that any set-off, deduction or
withholding is required by law to be made from such payments, the
amount payable shall be grossed-up so that the payee of such payment
receives the full amount which would have been received without such
set-off, deduction or withholding.
4. Conditions Precedent. The obligations of the Placement Agent hereunder
shall be subject in its discretion to (i) the condition that all
representations and warranties and other statements of the Selling
Shareholder herein are, at and as of the Closing Date, true and correct,
and (ii) the condition that the Selling Shareholder shall have performed
its obligations hereunder theretofore to be performed.
5. Indemnity.
(a) The Selling Shareholder will indemnify and hold harmless the Placement
Agent, its officers, directors, employees and its affiliates and each
person, if any, who controls, or is under common control with, such
Placement Agent, with the term "control" having the meaning ascribed
to it in Section 15 of the Securities Act, against any losses, claims,
damages or liabilities, joint or several, to which the Placement Agent
may become subject insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based
upon any
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breach of any of the representations and warranties of the Selling
Shareholder contained herein or relate to or arise in connection with
the offer of the Offered Shares and/or the sale and purchase of the
Placed Shares contemplated hereby or any other matter or activities
referred to or contemplated by this Placement Agreement, including any
losses, claims, damages or liabilities arising out of or based upon
the Selling Shareholder's failure to perform its obligations under
this Placement Agreement, other than any losses, claims, damages or
liabilities that have been finally judicially determined to have
resulted directly from the Placement Agent's material breach of its
obligations hereunder and will reimburse the Placement Agent for any
legal or other expenses incurred by the Placement Agent in connection
with investigating or defending any such loss, claim, damage,
liability or action as such expenses are incurred.
(b) The Selling Shareholder shall not, without the prior written consent
of the indemnified party, effect any settlement of any pending or
threatened action 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 (i) an
unconditional release of such indemnified party from all liability on
any claims that are the subject matter of such action and (ii) does
not include a statement as to or an admission of fault, culpability or
failure to act by or on behalf of any indemnified party.
(c) If the indemnification provided for in this Section is unavailable or
insufficient to hold harmless an indemnified party under subsection
(a) above, then the Selling Shareholder shall contribute to the amount
paid or payable by such indemnified party as a result of the losses,
claims, damages or liabilities referred to in subsection (a) above (i)
in such proportion as is appropriate to reflect the relative benefits
received by the Selling Shareholder on the one hand and the Placement
Agent on the other from the offering by the Selling Shareholder of the
Offered Shares or (ii) if the allocation provided by clause (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 (i) above but also the relative fault of the Selling
Shareholder on the one hand and the Placement Agent on the other in
connection with any matter or activities referred to or contemplated
by this Placement Agreement as well as any other relevant equitable
considerations. The relative benefits received by the Selling
Shareholder on the one hand and the Placement Agent on the other shall
be deemed to be in the same proportion as the total net proceeds from
the Placing (before deducting expenses) received by the Selling
Shareholder bear to the total discounts and commissions received by
the Placement Agent from the Selling Shareholder under this Placement
Agreement. The
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relative fault shall be determined by reference to, among other
things, the representations, warranties or undertakings that resulted
in such losses, claims, damages or liabilities, as well as any other
relevant considerations. The amount paid by an indemnified party as a
result of the losses, claims, damages or liabilities referred to in
the first sentence of this subsection (c) shall be deemed to include
any legal or other expenses incurred by such indemnified party in
connection with investigating or defending any action or claim which
is the subject of this subsection (c).
(d) The obligations of the Selling Shareholder under this Section
"Indemnity" shall be in addition to any liability which the Selling
Shareholder may otherwise have and shall extend, upon the same terms
and conditions, to the directors, officers, employees and controlling
persons within the meaning of the Securities Act or the Exchange Act,
as the case may be, of the Placement Agent and each of its affiliates
within the meaning of the Securities Act or Exchange Act (and shall
include the partners of any such affiliates).
(e) Each indemnified party under this subsection (e) shall have the right
to enforce its rights against the Selling Shareholder under this
Section "Indemnity" provided that, save to the extent notified in
writing to the relevant indemnified party, the Placement Agent
(without obligation) will have the sole conduct of any action to
enforce such rights or settle any action or claim on behalf of the
relevant indemnified person. Save as provided in this subsection (e),
indemnified parties other than the Placement Agent will not be
entitled directly to enforce their rights against any indemnifying
party under this Placement Agreement. The Placement Agent and the
Selling Shareholder may agree to terminate this Placement Agreement or
vary any of its terms without the consent of any indemnified person
and the Placement Agent will have no responsibility to any indemnified
person under or as a result of this Placement Agreement.
Each of the obligations of the Selling Shareholder set forth in this
Section "Indemnity" shall survive termination of this Placement Agreement.
6. Termination.
(a) Notwithstanding anything contained herein, the Placement Agent may by
notice to the Selling Shareholder terminate this Placement Agreement
if any of the following shall occur on or after the date of this
Placement Agreement: (i) a breach of, or any event rendering untrue or
incorrect in any respect any of the warranties and representations
contained herein or any failure to perform any of the undertakings or
agreement in this Placement
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Agreement; (ii) any change or development involving a prospective
change, in national or international monetary, financial, political or
economic conditions (including any disruption to trading generally, or
trading in any of the Company's securities, on the Stock Exchange of
Hong Kong, the London Stock Exchange, the New York Stock Exchange or
the Nasdaq) or currency exchange rates or foreign exchange rates or
foreign exchange controls; (iii) a general moratorium on commercial
banking activities in Hong Kong, London or New York declared by the
relevant authorities or a material disruption in commercial banking or
securities settlement or clearance services in Hong Kong, the United
Kingdom or the United States; (iv) a change or development involving a
prospective change in the condition, business, results of operations
or prospects of the Company and its subsidiaries as a whole from that
set forth in the Company's most recent annual report or subsequent
information releases issued prior to the date hereof in the judgment
of Citi, is material and adverse and that makes it impracticable to
conduct the placement of the Offered Shares in the manner contemplated
herein; (v) a change or development involving a prospective change in
taxation adversely affecting the Company, the Offered Shares or the
transfer thereof; or (vi) any outbreak or escalation of hostilities or
act of terrorism involving Hong Kong, the United Kingdom or the United
States or the declaration by Hong Kong, the United Kingdom or the
United States of a national emergency or war; which in the case of
clauses (ii) and (vi) would in Citi's judgment, be likely to prejudice
materially the success of the offer and distribution of the Offered
Shares or dealing in the Offered Shares in the secondary market.
(b) Each of the respective indemnities, agreements, representations,
warranties and other statements by or on behalf of the Selling
Shareholder, as set forth in this Placement Agreement shall remain in
full force and effect, regardless of any investigation (or any
statement as to the results thereof) made by or on behalf of the
Placement Agent or any controlling person of the Placement Agent, and
shall survive delivery of and payment for the Placed Shares.
(c) The Placement Agent shall have the right to terminate its obligations
under this Placement Agreement if the Placed Shares are not delivered
by or on behalf of the Selling Shareholder as provided herein or to
effect the purchase of such Placed Shares as are delivered without
relieving the Selling Shareholder from liability for default.
7. Announcements. The Placement Agent and the Selling Shareholder agrees,
should the transactions contemplated by this Placement Agreement be the
subject of a press release, that the contents of that
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press release will be jointly agreed by them and used jointly by them on or
after the date on which this Placement Agreement is executed. Except for
such joint press release, the transactions contemplated by this Placement
Agreement may not publicly be disclosed to any third party or otherwise
publicly referred to by either party without the prior written consent of
the other party. Notwithstanding the foregoing, the Selling Shareholder and
the Placement Agent are entitled to notify the Company and any relevant
stock exchange of the occurrence of its holding of the Shares in the
Company falling below or rising above any applicable threshold.
8. Selling Shareholder's Covenants. The Selling Shareholder covenants and
agrees with the Placement Agent that:
(a) except for a transfer of Shares by the Selling Shareholder to a wholly
owned subsidiary or to a wholly owned subsidiary of its holding
company (and the Selling Shareholder shall procure such transferee(s)
to comply with the provisions of this paragraph (a) below), the
Selling Shareholder will not offer, sell, contract to sell, pledge or
otherwise dispose of, directly or indirectly, any additional Shares or
securities convertible into or exchangeable or exercisable for Shares
or any derivative instruments relating to the Shares or deposit any
such securities in an American or Global Depositary Receipt facility
during the period commencing on the date hereof and ending on the date
90 days after the date of the Closing Date, in each case without the
prior written consent (not to be unreasonably withheld) of the
Placement Agent;
(b) the Selling Shareholder will promptly pay or transfer to or to the
order of the Placement Agent on behalf of the purchasers of the Placed
Shares upon receipt, any dividend or distribution declared by the
Company in respect of the Shares for which a record date occurs on or
after the date of this Placement Agreement;
(c) the Selling Shareholder shall forthwith notify the Placement Agent of
any change affecting any of the representations and warranties
contained in Section "Selling Shareholder Representations and
Warranties" which occur at any time before the Closing Date;
(d) if, at any time prior to the Closing Date, the Selling Shareholder has
knowledge of the occurrence of any event as a result of which the
information contained in the Company Information would include an
untrue statement of a material fact or 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, the Selling
Shareholder will promptly notify the Placement Agent thereof and the
reasons therefore;
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(e) the Selling Shareholder will provide the Placement Agent, at its
request, with all such information known to it or which on reasonable
enquiry ought to be known to it and relating to the Company and its
subsidiaries or otherwise as may be reasonably required by the
Placement Agent in connection with the Placing for the purposes of
complying with all requirements of applicable law (including any due
diligence defences) or of the Stock Exchange or of the SFC;
(f) the Selling Shareholder shall do, or procure the doing of, all such
other acts and things as may be reasonably required to be done by it
to carry into effect the Placing in accordance with the terms of this
Placement Agreement;
(g) if this Placement Agreement is terminated pursuant to Clause 6, the
Selling Shareholder shall remain liable to the Placement Agent for the
payment of all costs, charges and expenses referred to in Clauses
3(a)(ii) and (iii) to the extent already incurred in accordance with
the terms of this Placement Agreement; and
(h) the Selling Shareholder hereby acknowledges that, in addition to the
commissions, costs, charges and expenses referred to in Clause 3(a),
the Placement Agent shall be entitled to keep for its own account any
brokerage, fees or commissions that it may receive from the purchasers
of the Placed Shares.
9. Notices. All statements, requests, notices and agreements hereunder shall
be in writing, and if to the Placement Agent shall be delivered or sent by
mail, telex or facsimile transmission. The address and facsimile number of
Citi and the Selling Shareholder are as follows (unless modifications are
notified to each of the parties hereto upon not less than five business
days' notice):
(a) Citi: Citigroup Global Markets Asia Limited, ▇▇/▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇,
▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇ ▇▇▇▇; Attn: ▇▇▇▇▇▇ ▇▇▇; Phone:
▇▇▇▇ ▇▇▇▇ ▇▇▇▇ Fax: ▇▇▇▇ ▇▇▇▇ ▇▇▇▇;
(b) Selling Shareholder: Orascom Telecom Eurasia Limited, Nile City
Towers, South Tower 27th Floor, Cornish El Nile, Ramlet ▇▇▇▇▇▇▇,
Cairo, Egypt; Attn: ▇▇▇▇ ▇▇▇▇▇▇▇; Phone: ▇▇▇▇ ▇▇▇ ▇▇▇▇ /5051 Fax: +20
▇ ▇▇▇ ▇▇▇▇
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10. Miscellaneous. This Placement Agreement shall be binding upon, and inure
solely to the benefit of, the Placement Agent and the Selling Shareholder
and, to the extent provided herein, any directors, officers, employees and
controlling persons of the Placement Agent, and their heirs, executors,
administrators, successors and assigns, and no other person shall acquire
or have any right under or by virtue of this Placement Agreement. No
purchaser of any of the Placed Shares shall be deemed a successor or assign
by reason merely of such purchase. Unless otherwise specified herein, all
references herein to date and time shall mean the local time at Hong Kong.
11. Jurisdictions. The Selling Shareholder hereby irrevocably submits to the
exclusive jurisdiction of the courts of Hong Kong in any suit or proceeding
arising out of or relating to this Placement Agreement or the transactions
contemplated hereby and the Selling Shareholder irrevocably waives any
objection which it may now or hereafter have to the service of process or
the laying of venue in connection with any such proceeding. The Selling
Shareholder irrevocably appoints The Law Debenture Corporation (H.K.)
Limited of Room 3105, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇,
as its authorized agent upon which process may be served in any such suit
or proceeding, and agrees that service of process upon such agent, and
written notice of said service to the Selling Shareholder, by the person
serving the same to the address provided in the Section "Notices", shall be
deemed in every respect effective service of process upon the Selling
Shareholder in any such suit or proceeding. If for any reason such agent
shall cease to be such agent for service of process, the Selling
Shareholder shall forthwith appoint a new agent for service of process in
Hong Kong and deliver to the Placement Agent a copy of the new agent's
acceptance of that appointment within 30 days.
12. Governing Law. This Placement Agreement shall be governed by, and construed
in accordance with, the laws of Hong Kong without regard to principles of
conflicts of laws to the extent the application of such principles would
cause the laws of a different state to apply.
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13. Execution. This Placement Agreement may be executed by any one or more 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.
If the foregoing is in accordance with your understanding, please sign and
return to us three (3) original counterparts hereof, and upon the acceptance
hereof by you, this Placement Agreement and such acceptance hereof shall
constitute a binding agreement between the Selling Shareholder and the Placement
Agent.
Very truly yours,
CITIGROUP GLOBAL MARKETS ASIA LIMITED
By: /s/ ▇▇▇▇▇▇ ▇▇▇
-------------------------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇
Title: Director, Head of Hong Kong Investment Banking
Accepted and agreed:
ORASCOM TELECOM EURASIA LIMITED
By:
-------------------------------------------------
Name:
Title:
15
13. Execution. This Placement Agreement may be executed by any one or more 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.
If the foregoing is in accordance with your understanding, please sign and
return to us three (3) original counterparts hereof, and upon the acceptance
hereof by you, this Placement Agreement and such acceptance hereof shall
constitute a binding agreement between the Selling Shareholder and the Placement
Agent.
Very truly yours,
CITIGROUP GLOBAL MARKETS ASIA LIMITED
By:
-------------------------------------------------
Name:
Title:
Accepted and agreed:
ORASCOM TELECOM EURASIA LIMITED
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇
-------------------------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇▇
Title: General Counsel
15
Schedule A
Number of
Shares
Number of to be sold
Shares ("Offered
Selling Shareholder Owned Shares")
--------------------------------------- ----------- ----------
Orascom Telecom Eurasia Limited Limited 774,327,172 94,193,000
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