EXHIBIT 4(kk)
Dated 5 March 2004
PCCW LIMITED
and
▇▇▇▇ ▇▇▇▇ GAS HOLDINGS LIMITED
SALE AND PURCHASE AGREEMENT
relating to the sale and purchase of the whole of the issued share capital
of
Ipswich Holdings Limited
and other assets
Linklaters
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▇▇▇▇ ▇▇▇▇
Telephone (▇▇▇) ▇▇▇▇ ▇▇▇▇
Facsimile (▇▇▇) ▇▇▇▇ ▇▇▇▇/2810 1695
Sale and Purchase Agreement
This Agreement is made on 5 March 2004
Between:
(1) PCCW LIMITED, a company incorporated in Hong Kong whose registered
office is at ▇▇/▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇'▇ ▇▇▇▇, ▇▇▇▇▇▇
▇▇▇, ▇▇▇▇ ▇▇▇▇ (the "Seller"); and
(2) ▇▇▇▇ ▇▇▇▇ GAS HOLDINGS LIMITED, a company incorporated in Bermuda with
limited liability whose registered office is at ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇
▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ and whose principal place of
business in Hong Kong is at 9th Floor, ▇▇▇▇ Y Centre, 51 Hung To Road,
▇▇▇▇ ▇▇▇▇, Kowloon, Hong Kong (the "Purchaser").
Whereas:
(A) The Seller has agreed to sell (or procure the sale of) the Sale Shares
and the Sale Assets and to assume the obligations imposed on the
Seller under this Agreement.
(B) The Purchaser has agreed to purchase the Sale Shares and the Sale
Assets from the Seller and to assume the obligations imposed on the
Purchaser under this Agreement.
It is agreed as follows:
1 Interpretation
In this Agreement and the Recitals, unless the context otherwise
requires, the provisions in this Clause 1 apply:
1.1 Definitions
"Accounts" means the unaudited combined accounts of the Group for the
twelve month period ended on the Accounts Date;
"Accounts Date" means 31 December 2002;
"Agreed Terms" means, in relation to a document, such document in the
terms agreed between the Seller and the Purchaser and signed for
identification by the Purchaser's Lawyers and the Seller's Lawyers
(with such alterations as may be agreed in writing between the Seller
and the Purchaser from time to time);
"Business Day" means a day which is not a Saturday, Sunday or a public
holiday in Hong Kong;
"Capital Reorganisation" means the reduction of the nominal value of
each Existing Issuer's Share in issue, the 10:1 share consolidation,
the cancellation of each unissued Existing Issuer's Share and the
cancellation of the share premium account of the Purchaser, as
contemplated in the Condition Precedent set out in Clause 4.1.1;
"Certificates" means the relevant certificates to be issued in respect
of the Tranche A Note and the Tranche B Note substantially in the form
set out in Schedule 8;
"Charts" means the corporate charts of the Group which are attached to
the Seller's Disclosure Letter;
"Companies Ordinance" means the Companies Ordinance (Cap. 32 of the
Laws of Hong Kong);
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"Company" means Ipswich Holdings Limited, details of which are set
out in paragraph 1 of Schedule 1;
"Completion" means the completion of the sale of the Sale Shares and
the Sale Assets pursuant to Clause 6 of this Agreement;
"Completion Date" means the date on which Completion takes place;
"Confidentiality Agreement" means the confidentiality agreement dated
21 February 2004 between the Seller and the Buyer pursuant to which
the parties made available to each other certain confidential
information relating to the Group and the Purchaser's Group;
"Consent" includes any licence, consent, approval, authorisation,
permission, waiver, order or exemption;
"Conditions" means the terms and conditions to be attached to the
Certificate substantially in the form set out in Schedule 8 (with such
amendments thereto as the Purchaser and the Seller may agree), and
"Condition" refers to the relative numbered paragraph of the
Conditions;
"Conditions Precedent" means the conditions precedent to this
Agreement set out in Clause 4.1;
"Consideration" means the consideration for the transfer of the Sale
Shares and the Sale Assets pursuant to Clause 3.1 in the aggregate
amount of HK$6,557 million, which shall be satisfied in accordance
with Clause 3;
"Consideration Shares" means the 1,648,333,333 New Shares to be
allotted and issued to the Seller to satisfy part of the Consideration
payable by the Purchaser to the Seller pursuant to Clause 3;
"Conversion Date" means any date on which the Conversion Rights (or
any of them) are exercised in accordance with the Conditions;
"Conversion Price" means HK$2.25 per New Share and HK$3.60 per New
Share in respect of the Tranche A Note and the Tranche B Note
respectively (subject to adjustments pursuant to the Conditions);
"Conversion Rights" means the rights attached to the Convertible Notes
to convert the principal amount (or any part thereof) thereof into New
Shares;
"Conversion Shares" means the New Shares to be issued by the Purchaser
upon exercise by the Noteholder of the Conversion Rights, and a
"Conversion Share" shall be construed accordingly;
"Convertible Notes" means the Tranche A Note and the Tranche B Note;
"Developer" means Cyber-Port Limited, which will be a wholly-owned
subsidiary in the Group after the Restructuring and immediately before
Completion;
"Development Right" means the future rights (if any) of the Exchange
Company (or, if applicable, another member of the Seller's Group) to
redevelop the Telecom Exchanges;
"Encumbrance" means any claim, charge, mortgage, lien, option, equity,
power of sale, hypothecation, retention of title, right of
pre-emption, right of first refusal or other third party right or
security interest of any kind or an agreement, arrangement or
obligation to create any of the foregoing;
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"Equity Share Capital" means (for the purposes of the Conditions) the
issued share capital of the Purchaser excluding any part thereof which
does not either as respects dividends or as respects capital carry any
right to participate beyond a specified amount or beyond an amount
calculated by reference to a specified rate in a distribution;
"Exchange Company" means PCCW-HKT Telephone Limited, being a
wholly-owned subsidiary of the Seller;
"Exchange Developer" means Smart Phoenix Limited, which will be a
wholly-owned subsidiary in the Group after the Restructuring and
immediately before Completion;
"Executive" means the Executive Director of the Corporate Finance
Division of the Securities and Futures Commission or any delegate for
the time being of the Executive Director;
"Existing Issuer's Shares" means the ordinary shares of HK$0.40 each
in the share capital of the Purchaser;
"Group" means the Group Companies, taken as a whole, after the
Restructuring;
"Group Companies" means the Company and the Subsidiaries, and "Group
Company" means any one of them;
"HK$" or "Hong Kong Dollars" means Hong Kong dollars, the lawful
currency of Hong Kong;
"Hong Kong" means the Hong Kong Special Administrative Region of the
PRC;
"Intellectual Property" means trade marks, service marks, trade names,
domain names, logos, get-up, patents, inventions, registered and
unregistered design rights, copyrights, semi-conductor topography
rights, database rights and all other similar rights in any part of
the world (including Know-how) including, where such rights are
obtained or enhanced by registration, any registration of such rights
and applications and rights to apply for such registrations;
"Issuer's Shares" means the ordinary shares of HK$0.10 each in the
share capital of the Purchaser;
"JV" means a joint venture between the Exchange Developer and the
Exchange Company (or, if applicable, another member of the Seller's
Group) to redevelop each relevant Telecom Exchange if and when that
company obtains that Development Right in the future;
"Know-how" means confidential and proprietary industrial and
commercial information and techniques in any form including (without
limitation) drawings, formulae, test results, reports, project reports
and testing procedures, instruction and training manuals, tables of
operating conditions, market forecasts, lists and particulars of
customers and suppliers;
"Listing Rules" means the Rules Governing the Listing of Securities on
the Stock Exchange;
"Loan Assignment" means the loan assignment in respect of the Loans
set out in Annexure A;
"Loans" means some of the shareholder loans owing or to be owed by the
relevant Group Companies to the Seller, details of which are set out
in the Loan Assignment;
"Losses" means all losses, liabilities, costs (including without
limitation legal costs and experts' and consultants' fees), charges,
expenses, actions, proceedings, claims and demands;
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"Management Accounts" means the unaudited combined accounts of the
Group drawn up to 31 December 2003 (the "Management Accounts Date");
"material subsidiary" means (for the purposes of the Conditions) any
subsidiary of the Issuer whose gross revenue exceeds 10% of the
Purchaser's consolidated gross revenue or whose gross assets exceed
10% of the Purchaser's consolidated gross assets, as shown in the
Purchaser's latest consolidated audited accounts at the time of such
determination;
"New Shares" means new Reorganised Issuer's Shares;
"Noteholder" means a registered holder of any Convertible Note;
"PRC" means the People's Republic of China;
"Properties" means the properties set out in Parts 1 and 2 of Schedule
3, and "Property" means any one of them;
"Project Agreement" means the project agreement relating to the
Cyberport project dated 17 May 2000 between the Seller, the Developer,
Hong Kong Cyberport Development Holdings Limited, Hong Kong Cyberport
Management Company Limited and Hong Kong Cyberport (Ancillary
Development) Limited;
"Purchaser" means the Purchaser, further details of which are set out
in paragraph 1 of Schedule 2;
"Purchaser's Accounts" means the audited consolidated accounts of the
Purchaser's Group for the twelve month period ended on the Purchaser's
Accounts Date;
"Purchaser's Accounts Date" means 31 March 2003;
"Purchaser's Chart" means the corporate chart of the Purchaser's Group
which is attached to the Purchaser's Disclosure Letter;
"Purchaser's Disclosure Letter" means the letter dated on the same
date as this Agreement from the Purchaser to the Seller disclosing:
(i) information constituting exceptions to the Purchaser's Warranties;
and
(ii) details of other matters referred to in this Agreement;
"Purchaser's Group" means the Purchaser's Group Companies, taken as a
whole;
"Purchaser's Group Companies" means the Purchaser and the Purchaser's
Subsidiaries, and "Purchaser's Group Company" means any one of them;
"Purchaser's Lawyers" means ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ of 20/F, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇,
▇▇-▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇;
"Purchaser's Management Accounts" means the unaudited interim accounts
relating to the Purchaser's Group drawn up to 30 September 2003 (the
"Purchaser's Management Accounts Date");
"Purchaser's Properties" means the properties set out in Parts 1 and 2
of Schedule 4, and "Purchaser's Property" means any one of them;
"Purchaser's Subsidiaries" means the subsidiaries listed in paragraph
2 of Schedule 2, and "Purchaser's Subsidiary" means any one of them;
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"Purchaser's Warranties" means the warranties and representations
given by the Purchaser pursuant to Clause 8.4 and Schedule 7, and
"Purchaser's Warranty" means any one of them;
"Queen's Road Exchange" means the building(s) and erection(s) at Ko
Shing Street and Wo ▇▇▇▇ Street erected on Subsection 3 of Section F
of Marine Lot No.58, Subsection 5 of Section F of Marine Lot No.58,
The Remaining Portion of Section F of Marine Lot No.58, Subsection 2
of Section F of Marine Lot No.58 and Subsection 1 of Section C of
Marine Lot No.58;
"Reduced Issuer's Shares" means shares of HK$0.01 each in the share
capital of the Purchaser immediately after the cancellation of HK$0.39
of capital paid up on each issued Existing Issuer's Share;
"Reorganised Issuer's Shares" means the Issuer's Shares of HK$0.10
each after completion of the Capital Reorganisation;
"Restructuring" means the restructuring of the Group before Completion
as described in the Seller's Disclosure Letter;
"S&P Agreement" means the sale and purchase agreement in respect of
the Queen's Road Exchange set out in Annexure B;
"Sale Assets" means the Loans and the Queen's Road Exchange;
"Sale Shares" means the two ordinary shares of US$1.00 each in the
issued capital of the Company, being the whole of the issued share
capital of the Company;
"Seller's Disclosure Letter" means the letter dated on the same date
as this Agreement from the Seller to the Purchaser disclosing:
(i) information constituting exceptions to the Seller's Warranties;
and
(ii) details of other matters referred to in this Agreement;
"Seller's Group" means the Seller and its subsidiaries;
"Seller's Lawyers" means Linklaters of ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇,
▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇ ▇▇▇▇;
"Seller's Warranties" means the warranties and representations given
by the Seller pursuant to Clause 8.1 and Schedule 6, and "the Seller's
Warranty" means any one of them;
"Senior Employee" means any employee employed or engaged in relation
to the Group on an annual salary (on the basis of full-time
employment) in excess of HK$3,000,000;
"Senior Purchaser Employee" means any employee employed or engaged in
relation to the Purchaser's Group on an annual salary (on the basis of
full-time employment) in excess of HK$1,000,000;
"Stock Exchange" means The Stock Exchange of Hong Kong Limited;
"Subsidiaries" means the subsidiaries listed in paragraph 2 of
Schedule 1, and "Subsidiary" means any one of them;
"Takeovers Code" means the Hong Kong Code on Takeovers and Mergers;
"Taxation" or "Tax" means all forms of taxation whether direct or
indirect and whether levied by reference to income, profits, gains,
net wealth, asset values, turnover, added value or other reference and
statutory, governmental, state, provincial, local governmental or
municipal
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impositions, duties, contributions, rates and levies (including
without limitation social security contributions and any other payroll
taxes), whenever imposed (whether imposed by way of a withholding or
deduction for or on account of tax or otherwise) and in respect of any
person and all penalties, charges, costs and interest relating
thereto;
"Tax Authority" means any taxing or other authority (in Hong Kong, the
PRC and the British Virgin Islands) competent to impose any liability
in respect of Taxation or responsible for the administration and/or
collection of Taxation or enforcement of any law in relation to
Taxation;
"Telecom Exchanges" means the premises which are mostly held at
present under private treaty grants from the Hong Kong Government and
used by the Exchange Company primarily for the purpose of allowing
telephone lines to be connected to one another for the provision of
telecommunications services to the public (excluding the Queen's Road
Exchange);
"Tranche A Note" means the Tranche A convertible note in the principal
sum of HK$1,170 million to be issued by the Purchaser to the Seller in
accordance with the terms and conditions of this Agreement;
"Tranche B Note" means the Tranche B convertible note in the principal
sum of HK$2,420 million to be issued by the Purchaser to the Seller in
accordance with the terms and conditions of this Agreement;
"US" means the United States of America;
"US$" means United States dollars, the lawful currency of the US.
1.2 Modification etc. of Ordinances
References to an ordinance or statutory provision include:
1.2.1 that ordinance or provision as from time to time modified,
re-enacted or consolidated whether before or after the date
of this Agreement;
1.2.2 any past ordinance or statutory provision (as from time to
time modified, re-enacted or consolidated) which that
ordinance or provision has directly or indirectly replaced;
and
1.2.3 any subordinate legislation made from time to time under that
ordinance or statutory provision, which is in force at the
date of this Agreement,
except to the extent that any statute, statutory provision or
subordinate legislation made or enacted after the date of this
Agreement would create or increase a liability of the Seller under
this Agreement.
1.3 Singular, plural, gender
References to one gender include all genders and references to the
singular include the plural and vice versa.
1.4 References to persons and companies
References to:
1.4.1 a person include any company, partnership or unincorporated
association (whether or not having separate legal
personality); and
1.4.2 a company shall include any company, corporation or any body
corporate, wherever incorporated.
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1.5 References to subsidiaries and holding companies
The words "holding company" and "subsidiary" shall have the same
meaning in this Agreement as their respective definitions in the
Companies Ordinance.
1.6 Accounts
Any reference to "accounts" shall include the directors' and auditors'
reports, relevant balance sheets and profit and loss accounts and
related notes together with all documents which are or would be
required by law to be annexed to the accounts of the company concerned
to be laid before that company in general meeting in respect of the
accounting reference period in question.
1.7 Schedules etc.
References to this Agreement shall include any Schedules to it and
references to Clauses and Schedules are to Clauses of, and Schedules
to, this Agreement. References to paragraphs and Parts are to
paragraphs and Parts of the Schedules.
1.8 Headings
Headings shall be ignored in interpreting this Agreement.
1.9 Legal Terms
References to any Hong Kong legal term shall, in respect of any
jurisdiction other than Hong Kong, be construed as references to the
term or concept which most nearly corresponds to it in that
jurisdiction.
2 Agreement to Sell and Purchase
2.1.1 On and subject to the terms of this Agreement, the Seller
agrees to sell (or procure the sale), and the Purchaser
agrees to purchase, the Sale Shares and the Sale Assets.
2.1.2 The Sale Shares and the Sale Assets shall be sold (or procure
to be sold) by the Seller free from Encumbrances and together
with all rights and advantages attaching to them as at
Completion (including, without limitation, the right to
receive all dividends or distributions declared, made or paid
on or after Completion).
2.1.3 The Seller shall procure that on or prior to Completion any
and all rights of pre-emption over the Sale Shares are waived
irrevocably by the persons entitled thereto.
3 Consideration
3.1 Subject to fulfilment of the Conditions Precedent, the Consideration
shall be satisfied at Completion:
3.1.1 as to HK$2,967 million, by way of the issue and allotment of
the Consideration Shares at an issue price of HK$1.80 per
share by the Purchaser to the Seller;
3.1.2 as to HK$3,590 million, by way of the issue of the
Convertible Notes by the Purchaser to the Seller in their
full face value, upon and subject to the Conditions and the
Certificate.
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3.2 The Consideration Shares shall be allotted and issued in accordance
with Clause 3.1 credited as fully paid at the issue price and shall
rank pari passu among themselves and with all Issuer's Shares in issue
on or after the date of Completion.
3.3 The Convertible Notes shall be issued in accordance with Clause 3.1
credited as fully paid at its full face value.
3.4 The parties agree that the Consideration is to be allocated as
follows:
3.4.1 as to the Loans in respect of Gain Score Limited, US$150
million by way of the Tranche A Note;
3.4.2 as to the Loans in respect of Partner Link Investments
Limited, HK$2,359 million by way of part of the Tranche B
Note;
3.4.3 as to the Queen's Road Exchange, HK$61 million by way of the
Tranche B Note and HK$97 million by way of Consideration
Shares; and
3.4.4 as to the Sale Shares, by way of the remaining part of the
Consideration Shares.
4 Conditions
4.1 Conditions Precedent
The agreement to sell and purchase the Sale Shares and the Sale Assets
contained in Clause 2 is conditional upon satisfaction of the
following Conditions Precedent, or their satisfaction subject only to
Completion:
4.1.1 the passing of a resolution by the shareholders of the
Purchaser at a general meeting of the Purchaser approving:
(i) the reduction of the nominal value of every Existing
Issuer's Share of HK$0.40 by the cancellation of
HK$0.39 of the capital paid up on each issued Existing
Issuer's Share so as to form a Reduced Issuer's Share
of HK$0.01;
(ii) the consolidation of every 10 issued Reduced Issuer's
Share into one Reorganised Issuer's Share of HK$0.10
each;
(iii) the cancellation of an amount of approximately
HK$47.14 million standing to the credit of the share
premium account of the Purchaser as at the date of
this Agreement;
(iv) the transfer of the aggregate amount of credit balance
of the share premium account of the Purchaser as at
the date of this Agreement and the credit arising from
the Capital Reorganisation to the contributed surplus
account of the Purchaser; and
(v) upon the reduction and the consolidation referred to
sub-paragraphs (i) and (ii) above taking effect, the
cancellation of each unissued Existing Issuer's Share
comprised in the Purchaser's authorised share capital
and, thereafter, the increase in the authorised share
capital of the Purchaser from HK$11,612,654 to
HK$1,000,000,000 by the creation of an additional
9,883,873,460 Reorganised Issuer's Shares;
4.1.2 approval by the independent shareholders of the Purchaser of:
(i) the acquisition by the Purchaser of the Sale Shares and
the Sale Assets; (ii) issue and allotment of the
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Consideration Shares to the Seller; (iii) issue of the
Convertible Notes to the Seller; (iv) issue and allotment of
the New Shares to be issued from time to time upon any
exercise of the Conversion Rights; and (v) all other
transactions contemplated under this Agreement, at a general
meeting of the Purchaser;
4.1.3 approval by the shareholders of the Seller of the disposal by
the Seller of: (i) the Sale Shares and the Sales Assets; and
(ii) all other transactions contemplated under this
Agreement, at a general meeting of the Seller;
4.1.4 (i) the passing of an ordinary resolution by an
independent vote (within the meaning of Note 1 of the
Notes on dispensations from Rule 26 of the Takeovers
Code or as may be required by the Executive) of the
shareholders of the Purchaser approving a waiver of
the obligation of the Seller and parties acting in
concert with it to make a mandatory offer for all the
Issuer's Shares under Rule 26 of the Takeovers Code as
a result of the issue of the Consideration Shares to
the Seller (or as it may direct); and
(ii) such a waiver having been obtained from the Executive
and not having been revoked or amended and, where such
waiver is granted subject to conditions, such
conditions being reasonably acceptable to the Seller
and, to the extent any such conditions are required to
be fulfilled before the waiver becomes effective, they
are so fulfilled;
4.1.5 (i) the passing of an ordinary resolution by an
independent vote (within the meaning of Note 1 of the
Notes on dispensations from Rule 26 of the Takeovers
Code or as may be required by the Executive) of the
shareholders of the Purchaser approving a waiver of
the obligation of the Seller and parties acting in
concert with it to make a mandatory offer for all the
Issuer's Shares under Rule 26 of the Takeovers Code as
a result of the issue of New Shares to the Seller (or
as it may direct) pursuant to a partial or full
exercise of the Conversion Rights; and
(ii) such a waiver having been obtained from the Executive
and not having been revoked or amended and, where such
waiver is granted subject to conditions, such
conditions being reasonably acceptable to the Seller
and, to the extent any such conditions are required to
be fulfilled before the waiver becomes effective, they
are so fulfilled;
4.1.6 the Listing Committee of the Stock Exchange granting the
listing of and permission to deal in the Consideration Shares
and the Conversion Shares (in each case, subject only to
conditions to which the Seller and the Purchaser have no
reasonable objection);
4.1.7 (i) the compliance of announcement and shareholders'
approval requirements under the Listing Rules or
otherwise of the Stock Exchange in relation to present
and future transactions contemplated as at the date of
this Agreement which will constitute continuing
connected transactions of the Purchaser following
Completion, including, if required, the approval by
independent shareholders of the Purchaser in respect
of those connected transactions and in respect of any
waivers relating thereto (if required under the
Listing Rules) as referred to in Clause 4.1.7(ii)
below; and
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(ii) the granting by the Stock Exchange of such waivers (if
required under the Listing Rules) relating to those
connected transactions on such terms as may be
reasonably acceptable to both the Seller and the
Purchaser;
4.1.8 the compliance of any other requirements under the Listing
Rules or otherwise of the Stock Exchange which requires
compliance at any time prior to Completion in relation to the
sale and purchase of the Sale Shares and the Sales Assets,
the issue of the Consideration Shares, the issue of the
Convertible Notes, the issue of the Conversion Shares upon
any exercise of the Conversion Rights, and the other
transactions contemplated under this Agreement, to the
reasonable satisfaction of the Seller and the Purchaser;
4.1.9 (where required) the Bermuda Monetary Authority granting its
permission to the issue of the Convertible Notes, and the
issue and allotment of the Consideration Shares, and the
issue and allotment of the Conversion Shares;
4.1.10 the obtaining of all Consents from the Government of Hong
Kong and any other relevant persons which are necessary or
desirable in connection with the transfer of the Sale Shares
(and, where such Consents are given subject to conditions,
such conditions are on terms as may be reasonably acceptable
to the Seller);
4.1.11 the obtaining of all Consents from government or regulatory
authorities or other third parties which are necessary or
desirable in connection with the execution and performance of
this Agreement and any of the transactions contemplated under
this Agreement;
4.1.12 the Seller having obtained a legal opinion of a firm of
Bermuda lawyers acceptable to the Seller covering such issues
and matters of laws and requirements in Bermuda in respect of
the Purchaser, this Agreement, the issue of the Consideration
Shares, the issue of the Convertible Notes and the issue of
the Conversion Shares, in such form and substance reasonably
satisfactory to the Seller;
4.1.13 all the Consents referred to above remaining in full force
and effect at Completion;
4.1.14 completion of legal and financial due diligence on the
Purchaser's Group to the reasonable satisfaction of the
Seller;
4.1.15 completion of legal and financial due diligence on the Group
to the reasonable satisfaction of the Purchaser;
4.1.16 all the Seller's Warranties being true and correct in all
material respects as at the Completion Date by reference to
the facts and circumstances subsisting as at that date; and
4.1.17 all the Purchaser's Warranties being true and correct in all
material respects as at the Completion Date by reference to
the facts and circumstances subsisting as at that date.
4.2 Fulfilment
4.2.1 The Seller shall use all reasonable endeavours to procure the
fulfilment of the Conditions Precedent set out in Clauses
4.1.3, 4.1.10 to 4.1.14 and 4.1.16 (in the case of Clauses
4.1.11 and 4.1.13, as far as Consents relating to the Seller
are concerned);
4.2.2 the Purchaser shall use all reasonable endeavours to procure
the fulfilment of the Conditions Precedent set out in Clauses
4.1.1, 4.1.2, 4.1.4 to 4.1.9, 4.1.11, 4.1.13,
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4.1.15 and 4.1.17 (in the case of Clauses 4.1.11 and
4.1.13, as far as Consents relating to the Purchaser are
concerned),
as soon as reasonably practicable and in any event before 30 June 2004
(or such later date as the Seller and the Purchaser may agree in
writing).
4.3 Subject to compliance with relevant laws, rules and regulations,
approval from shareholders or independent shareholders of the
Purchaser in respect of the matters required to be so approved as
referred to in Clauses 4.1.1, 4.1.2, 4.1.4, 4.1.5 and 4.1.7 shall be
sought in such number and combination of resolutions as the Seller and
the Purchaser may require, so that some or all of those matters shall
be contained in the same resolution in the notice of the relevant
general meeting or meetings of the Purchaser.
4.4 The Purchaser may at any time waive in writing the Conditions
Precedent set out in Clauses 4.1.15 and/or 4.1.16 and such waiver may
be made subject to such terms and conditions as are determined by the
Purchaser.
4.5 The Seller may at any time waive in writing any of the Conditions
Precedent set out in Clauses 4.1.4, 4.1.5, 4.1.12, 4.1.14 and/or
4.1.17 and such waiver may be made subject to such terms and
conditions as are determined by the Seller. The Seller shall not waive
the Condition Precedent set out in Clause 4.1.4 unless it shall have
demonstrated to the satisfaction of the Executive that it has
sufficient financial resources to fulfil its obligations under Rule 26
of the Takeovers Code (unless the Executive has in writing waived such
a requirement). The Seller hereby undertakes that it shall make an
offer for all the securities of the Purchaser (as required by the
Takeovers Code) and shall comply with its obligations thereunder in
respect of such an offer, if it waives the Condition Precedent set out
in Clause 4.1.4.
4.6 The Seller and the Purchaser may at any time jointly waive in writing
the Condition Precedent set out in Clauses 4.1.1 (except the part for
the increase of authorised capital), 4.1.11 and/or 4.1.13 if it is
agreed that the Consents which have not been obtained are not material
to the business of the Purchaser's Group and the Group taken as a
whole, and such waiver may be made subject to such terms and
conditions determined by the Seller and the Purchaser jointly.
4.7 The Seller and the Purchaser shall each provide such reasonable
assistance as requested to procure the fulfilment of those Conditions
Precedent set out in Clauses 4.1.1 to 4.1.15 which the other is to
procure to fulfil.
4.8 If any of the Conditions Precedent set out in Clause 4.1 has not been
fulfilled (or waived by the relevant party) by 30 June 2004 (or such
other date as the parties may agree in writing), except the Conditions
Precedent set out in Clauses 4.1.16 and 4.1.17 which shall be
fulfilled simultaneously upon Completion, this Agreement shall lapse
and be terminated and thereafter all rights, obligations and
liabilities of all parties hereunder shall cease and determine and no
party shall have any claim against the others under this Agreement
except for antecedent breach.
4.9 The Purchaser shall, as soon as practicable after the fulfillment of
any of the Conditions Precedent set out in Clause 4.2.2 (as far as
Consents relating to the Purchaser are concerned), provide to the
Seller certified copies of the documents (or such other evidence as is
satisfactory to the Seller) which evidence such fulfillment.
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4.10 The Seller shall, as soon as practicable after the fulfillment of any
of the Conditions Precedent set out in Clause 4.2.1 (as far as
Consents relating to the Seller are concerned) provide to the
Purchaser certified copies of the documents (or such other evidence as
is reasonably satisfactory to the Purchaser) which evidence such
fulfillment.
5 Pre-Completion
5.1 The Seller's Obligations in Relation to the Conduct of Business
The Seller undertakes to use reasonable endeavours to procure that,
between the date of this Agreement and Completion (unless the prior
consent of the Purchaser has been obtained), each Group Company:
5.1.1 shall carry on its business as a going concern in the
ordinary course as carried on prior to the date of this
Agreement, save in so far as agreed in writing by the
Purchaser (such consent not to be unreasonably withheld or
delayed);
5.1.2 shall (or shall procure that the relevant members of the
Seller's Group shall) maintain in force all existing
insurance policies in all material respects on the same terms
and similar level of cover prevailing at the date of this
Agreement for the benefit of the Group Companies;
5.1.3 without prejudice to the generality of Clause 5.1.1, shall
not except as may be required to give effect to and to comply
with this Agreement without the prior written consent of the
Purchaser (such consent not to be unreasonably withheld or
delayed):
(i) enter into any agreement or incur any commitment
involving any capital expenditure in excess of
HK$30,000,000 per item and HK$200,000,000 in
aggregate;
(ii) acquire or dispose of, or agree to acquire or dispose
of, any material asset or material stock, or enter
into or amend any agreement or incur any commitment to
do so, in each case involving consideration,
expenditure or liabilities in excess of HK$10,000,000,
other than in the ordinary course of business;
(iii) incur any additional borrowings or incur any other
indebtedness in each case in excess of HK$10,000,000
and otherwise than in the ordinary course of business
(except inter-group borrowings or indebtedness within
the Group);
(iv) create, allot or issue any share capital or loan
capital of any Group Company or any option to
subscribe for the same;
(v) repay, redeem or repurchase any share capital or loan
capital of any Group Company;
(vi) declare, make or pay any dividend or other
distribution to shareholders (other than to a Group
Company);
(vii) save as required by law:
(a) make any material amendment to the terms and
conditions of employment (including, without
limitation, remuneration, pension entitlements
and other benefits) of any Senior Employee (other
than minor increases in the ordinary course of
business which the Seller shall notify to the
Purchaser as soon as reasonably possible);
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(b) dismiss any Senior Employee; or
(c) engage or appoint any additional Senior Employee;
(viii) make any change to its accounting practices or
policies or amend its memorandum or articles of
association or bye-laws.
5.2 The Seller's other Rights and Obligations Prior to Completion
5.2.1 Without prejudice to the generality of Clause 5.1, prior to
Completion, the Seller shall procure that the Group Companies
shall collaborate with the Purchaser in relation to all
material matters concerning the running of the Group.
5.2.2 Notwithstanding any other provisions in this Agreement:
(i) the Purchaser agrees that the Seller shall implement
the Restructuring without any restrictions under this
Agreement; and
(ii) the Seller shall complete the Restructuring at its own
costs and at least five Business Days before
Completion.
5.2.3 The Seller shall deliver at it own costs to the Purchaser as
soon as practicable (but in any event not later than five
Business Days prior to the date of despatch of the
Purchaser's circular to its shareholders in connection with
this Agreement) certificates of title in respect of the Hong
Kong Properties referred to in Part 1 of Schedule 3 (issued
to the Seller or the relevant property holding company) by a
firm of Hong Kong lawyers acceptable to the Purchaser, acting
reasonably, and a legal opinion as to the matters which are
required to be covered under Practice Note 12 of the Listing
Rules in respect of the PRC Properties referred to in Part 1
of Schedule 3 (issued to the Seller or the relevant property
holding company) by a firm of PRC lawyers acceptable to the
Purchaser, acting reasonably.
5.3 The Purchaser's Obligations in relation to the Conduct of Business
The Purchaser undertakes to use reasonable endeavours to procure
that, between the date of this Agreement and Completion (unless the
prior consent of the Seller has been obtained), each Purchaser's
Group Company:
5.3.1 shall carry on its business as a going concern in the
ordinary course as carried on prior to the date of this
Agreement, save in so far as agreed in writing by the Seller
(such consent not to be unreasonably withheld or delayed);
5.3.2 shall (or shall procure that the relevant members of the
Purchaser's Group shall) maintain in force all existing
insurance policies in all material respects on the same terms
and similar level of cover prevailing at the date of this
Agreement for the benefit of the Purchaser's Group Companies;
5.3.3 without prejudice to the generality of Clause 5.3.1, shall
not except as may be required to give effect to and to comply
with this Agreement without the prior written consent of the
Seller (such consent not to be unreasonably withheld or
delayed):
(i) enter into any agreement or incur any commitment
involving any capital expenditure in excess of
HK$3,000,000 per item and HK$10,000,000 in aggregate;
(ii) acquire or dispose of, or agree to acquire or dispose
of, any material asset or material stock, or enter
into or amend any agreement or incur any commitment
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to do so, in each case involving consideration,
expenditure or liabilities in excess of HK$3,000,000,
other than in the ordinary course of business;
(iii) incur any additional borrowings or incur any other
indebtedness in each case in excess of HK$3,000,000
and otherwise than in the ordinary course of business
(except inter-group borrowings or indebtedness within
the Purchaser's Group);
(iv) create, allot or issue any share capital or loan
capital of any Purchaser's Group Company or any option
to subscribe for the same;
(v) repay, redeem or repurchase any share capital or loan
capital of any Purchaser's Group Company;
(vi) declare, make or pay any dividend or other
distribution to shareholders (other than to a
Purchaser's Group Company);
(vii) save as required by law:
(a) make any material amendment to the terms and
conditions of employment (including, without
limitation, remuneration, pension entitlements
and other benefits) of any Senior Purchaser
Employee (other than minor increases in the
ordinary course of business which the Purchaser
shall notify to the Seller as soon as reasonably
possible);
(b) dismiss any Senior Purchaser Employee; or
(c) engage or appoint any additional Senior Purchaser
Employee;
(viii) make any change to its accounting practices or
policies or amend its memorandum or articles of
association or bye-laws.
5.4 The Purchaser's other Obligations Prior to Completion
Without prejudice to the generality of Clause 5.3, prior to
Completion, the Purchaser shall procure that the Purchaser's Group
Companies shall collaborate with the Seller in relation to all
material matters concerning the running of the Purchaser's Group.
6 Completion
6.1 Date and Place
Subject to Clause 4, Completion shall take place at 2:00 pm at the
Seller's office on the fifth Business Day following fulfilment or
waiver of the last of the Conditions Precedent (other than those set
out in Clauses 4.1.8, 4.1.11, 4.1.16 and 4.1.17, provided that no
notice has been received by either the Purchaser or the Seller that
such Conditions Precedent will not be fulfilled at or before
Completion) (or at such other location, time or date as may be agreed
between the Purchaser and the Seller).
6.2 Completion Events
On Completion, the Seller and the Purchaser shall comply with their
respective obligations specified in Schedule 5.
6.3 Payment on Completion
On Completion, the Purchaser shall pay the Consideration to the
Seller.
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7 Specific Undertakings
7.1 Payment of Proceeds
7.1.1 In respect of the Developer, the Seller represents and
warrants in favour of the Purchaser that:
(i) the Developer is indebted to the Seller, which
indebtedness amounted to HK$4,503 million as at 31
January 2004 and is repayable on demand (but the
Seller agrees that no demand can be made unless: (a)
the Developer fails to comply with its obligations
under Clause 7.1.2(i); (b) there is a material adverse
change in the business or financial position or
prospects of the Developer; or (c) the Developer is
the subject of any of the events described in
paragraph 15 of Schedule 6), without interest;
(ii) the indebtedness was used solely for the purpose of
financing the development by the Developer of its
business and its overhead expenses (incurred in the
ordinary and usual course of it business);
(iii) the principal amount of the indebtedness set out in
Clause 7.1.1(i) outstanding as at Completion will not
exceed HK$4,860 million;
(iv) as at the date of this Agreement and as at Completion,
the Developer does not and will not have any
indebtedness which is required (whether as a matter of
contract or otherwise) to be repaid in priority to the
indebtedness to the Seller referred to in
sub-paragraph (i) above; and
(v) the Developer's business since its incorporation has
been and still is the execution of the Project
Agreement (and related agreements) and the performance
of its obligations thereunder.
7.1.2 Subject to Completion, the Purchaser undertakes to procure
that the Developer:
(i) (to the extent that it could lawfully do so) repays
its indebtedness to the Seller referred to in Clause
7.1.1 in priority to all other debts which may be owed
by the Developer as and when the Developer has the
funds (and is not prohibited or prevented, whether
under applicable laws or the terms of any contract or
undertaking entered into or given by the Developer at
or prior to Completion, to do so) to repay all or part
of such indebtedness to the Seller; and
(ii) as soon as practicable after Completion, ascertains
the audited accounting profit of the Developer (from
the date of its incorporation up to the Completion
Date) attributable to the shareholders of the
Developer calculated on a basis consistent with the
Management Accounts, subject to adjustment, (the
"Profit") and the Purchaser shall procure the
Developer to pay an amount equivalent to the Profit to
the Seller (by way of adjustment to the Consideration)
within 14 days of the Profit being ascertained (or, if
later, after the indebtedness to the Seller referred
to in Clause 7.1.1(i) has been repaid in full and the
Developer has the funds to pay the Profit).
7.1.3 For the purposes of Clause 7.1.2(ii), the Profit shall be
adjusted downwards (to the extent so attributable) by the
amount of any claim, loss or damage incurred or suffered by
the Developer as a result of any act, omission or default on
the part of any member of the Seller's Group before
Completion which may be ascertained before payment of the
Profit. For the purpose of this Clause 7.1.3, if before any
payment of the Profit is
15
made by the Developer, the Developer has in writing to the
Seller notified it of the amount by which the Profit should
be adjusted downwards pursuant to this Clause, giving brief
particulars of the basis of such claim, that amount (not
exceeding the amount of the Profit payable) shall not be
paid over to the Seller until such time the actual amount
of adjustment is finally determined by written agreement
between the Seller and the Developer or by a court or
arbitrator of competent jurisdiction.
7.1.4 For the avoidance of doubt:
(i) notwithstanding anything to the contrary in this
Agreement, but without prejudice to the Seller's
rights if the Purchaser is in breach of its
procurement obligations under Clause 7.1.2, the
Purchaser shall have no liability (whether actual or
contingent) to pay to the Seller any of the sums
payable by the Developer under Clause 7.1; and
(ii) any priority payment made by the Developer pursuant to
Clause 7.1.2 shall not constitute any variation of the
terms of the Project Agreement.
7.2 Development Right
7.2.1 The Seller and the Purchaser acknowledge that the Exchange
Company or another member of the Seller's Group (the
"Relevant Company") may obtain rights to redevelop any or all
of the Telecom Exchanges in the future, but there is no
assurance that any such redevelopment right will be obtained
by the Relevant Company.
7.2.2 Subject to Completion, the Seller undertakes to procure the
Relevant Company to grant (with effect from Completion) a
right of first refusal in favour of the Exchange Developer to
participate in each JV on no less favourable terms which the
Relevant Company is prepared to enter into such JV with any
bona fide third party. For that purpose, the Relevant Company
shall present its proposed terms of joint venture for each JV
to the Exchange Developer, and the Exchange Developer shall
have 45 days (the "Period") to consider whether to accept the
offer and if the Exchange Developer fails to accept such
offer within the Period, the Relevant Company may enter into
such JV with any bona fide third party on no less favourable
terms than those offered to the Exchange Developer within 120
days after the expiry of the Period.
7.2.3 The key terms of each JV shall be as follows:
(i) the Relevant Company shall pay for any new equipments
necessitated by vacating the existing premises;
(ii) the Exchange Developer shall pay for all the costs of
relocating the equipments, demolition, land premium,
development, construction and marketing in connection
with the redevelopment; and
(iii) the Relevant Company will share in 15% of the net
profit from the JV,
in respect of each relevant Telecom Exchange.
8 Warranties
8.1 Seller's Warranties
8.1.1 Subject to Clause 8.2, the Seller warrants to the Purchaser
that the statements set out in Schedule 6:
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(i) are true and accurate in all material respects and not
misleading in any material respect as at the date of
this Agreement (save for those statements which relate
to the ownership of the Group Companies or any other
matters affected by or in connection with the
Restructuring, which will be true and accurate in all
material respects and not misleading in any material
respect as at the date of completion of the
Restructuring); and
(ii) will be true and accurate in all material respects and
not misleading in any material respect as at the
Completion Date.
8.1.2 The Seller acknowledges that the Purchaser has entered into
this Agreement in reliance upon the Seller's Warranties.
8.1.3 The Seller's Warranties shall be separate and independent and
shall not be limited by reference to any other paragraph of
Schedule 6 or by anything in this Agreement.
8.1.4 Any Seller's Warranty qualified by the expression "to the
best of the Seller's knowledge, information and belief" or
any similar expression shall, unless otherwise stated, be
deemed to refer to the knowledge of the executive directors
of the Seller.
8.2 Seller's Disclosures
The Seller's Warranties are subject to the specific matters which are
fairly disclosed in or pursuant to this Agreement or the Seller's
Disclosure Letter.
8.3 Effect of Completion
The Seller's Warranties and all other provisions of this Agreement, to
the extent that they have not been performed by Completion, shall not
be extinguished or affected by Completion or by any other event or
matter (including, without limitation, any satisfaction and/or waiver
of any Conditions Precedent), except by a specific and duly authorised
written waiver or release by the Purchaser.
8.4 The Purchaser's Warranties
8.4.1 Subject to Clause 8.5, the Purchaser warrants to the Seller
that the statements set out in Schedule 7:
(i) are true and accurate in all material respects and not
misleading in any material respect as at the date of
this Agreement; and
(ii) will be true and accurate in all material respects and
not misleading in any material respect as at the
Completion Date.
8.4.2 The Purchaser acknowledges that the Seller has entered into
this Agreement in reliance upon the Purchaser's Warranties.
8.4.3 The Purchaser's Warranties shall be separate and independent
and shall not be limited by reference to any other paragraph
of Schedule 7 or by anything in this Agreement.
8.4.4 Any Purchaser's Warranty qualified by the expression "to the
best of the Purchaser's knowledge, information and belief" or
any similar expression shall, unless otherwise stated, be
deemed to refer to the knowledge of the executive directors
of the Purchaser.
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8.5 Purchaser's Disclosures
The Purchaser's Warranties are subject to the specific matters which
are fairly disclosed in or pursuant to this Agreement or the
Purchaser's Disclosure Letter.
8.6 Effect of Completion
The Purchaser's Warranties and all other provisions of this Agreement,
to the extent that they have not been performed by Completion, shall
not be extinguished or affected by Completion or by any other event or
matter (including, without limitation, any satisfaction and/or waiver
of any Conditions Precedent), except by a specific and duly authorised
written waiver or release by the Seller.
9 Limitation of Seller's Liability
9.1 Time Limitation for Claims
The Seller shall not be liable under this Agreement in respect of any
claim unless a notice of the claim is given by the Purchaser to the
Seller:
9.1.1 in the case of any claim under paragraph 12 of Schedule 6
(tax warranties), within three years following Completion;
and
9.1.2 in the case of any other claim, within 18 months following
Completion,
except that there shall be no time limitation for giving notice of any
claim under paragraphs 1.1 and 14 of Schedule 6.
Any claim notified by the Purchaser to the Seller pursuant to this
Clause shall specify the matters set out in Clause 10.2.
9.2 Minimum Claims
9.2.1 The Seller shall not be liable under this Agreement in
respect of any individual claim (or a series of claims
arising from substantially identical facts or circumstances)
where the liability agreed or determined (disregarding the
provisions of this Clause 9.2) in respect of any such claim
or series of claims does not exceed HK$5,000,000.
9.2.2 Where the liability agreed or determined in respect of any
such claim or series of claims exceeds HK$5,000,000, the
liability of the Seller shall be for the whole amount of
liability and not only the excess.
9.3 Aggregate Minimum Claims
9.3.1 The Seller shall not be liable under this Agreement in
respect of any claim unless the aggregate amount of all
claims for which the Seller would otherwise be liable under
this Agreement (disregarding the provisions of this Clause
9.3) exceeds HK$100,000,000.
9.3.2 Where the liability agreed or determined in respect of all
claims referred to in Clause 9.3.1 exceeds HK$100,000,000,
the liability of the Seller shall be for the whole amount of
the liability and not only the excess.
9.4 Maximum Liability
The aggregate liability of the Seller in respect of all breaches of
this Agreement shall not exceed the Consideration.
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9.5 Provisions
The Seller shall not be liable under this Agreement in respect of any
claim if and to the extent that proper allowance, provisions or
reserve is made in the Accounts or the Management Accounts for the
matter giving rise to the claim.
9.6 Matters Arising Subsequent to this Agreement
The Seller shall not be liable under this Agreement in respect of any
matter to the extent that the same would not have occurred but for:
9.6.1 Agreed matters
any matter or thing done or omitted to be done pursuant to and
in compliance with this Agreement or otherwise at the request
in writing or with the approval in writing of the Purchaser;
9.6.2 Changes in legislation
(i) the passing of, or any change in, after the date of
this Agreement, any law, rule, regulation or
administrative practice of any government,
governmental department, agency or regulatory body
including (without prejudice to the generality of the
foregoing) any increase in the rates of Taxation or
any imposition of Taxation or any withdrawal of relief
from Taxation not actually (or prospectively) in
effect at the date of this Agreement; or
(ii) any change after the date of this Agreement of any
generally accepted interpretation or application of
any legislation;
9.6.3 Accounting and Taxation Policies
any change in accounting or Taxation policy, advance ruling,
standards, bases or practice of the Purchaser or any of the
Group Companies introduced or having effect after Completion.
9.7 Recovery from Third Parties following Recovery from the Seller
If the Seller has paid an amount in discharge of any claim under this
Agreement and the Purchaser or any Group Company is entitled to
recover (whether by payment, discount, credit, relief, insurance or
otherwise) from a third party a sum which indemnifies or compensates
the Purchaser or any Group Company (in whole or in part) in respect
of the loss or liability which is the subject matter of the claim,
the Purchaser or the relevant Group Company shall pay to the Seller
as soon as practicable after receipt an amount equal to (i) any sum
recovered from the third party less any costs and expenses incurred
in obtaining such recovery (less any Taxation attributable to the
recovery after taking account of any tax relief available in respect
of any matter giving rise to the claim) or, if less (ii) the amount
previously paid by the Seller to the Purchaser less any Taxation
attributable to it.
9.8 Mitigation of Losses
The Purchaser shall procure that all reasonable steps are taken and
all reasonable assistance is given to avoid or mitigate any Losses
which in the absence of mitigation might give rise to a liability in
respect of any claim under this Agreement.
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9.9 Fraud
None of the limitations contained in this Clause 9 shall apply to any
claim which arises or is increased, or to the extent to which it
arises or is increased, as the consequence of, or which is delayed as
a result of, fraud by the Seller, any Group Company or any of their
respective directors, officers, employees or agents.
10 Claims Against the Seller
10.1 Notification of Potential Claims
10.1.1 If the Purchaser or any Group Company becomes aware of any
fact, matter or circumstance that may give rise to a claim
against the Seller under this Agreement, the Purchaser shall
as soon as reasonably practicable give a notice in writing to
the Seller setting out such information as is available to
the Purchaser or Group Company as is reasonably necessary to
enable the Seller to assess the merits of the claim, to act
to preserve evidence and to make such provision as the Seller
may consider necessary.
10.1.2 In the event of any Tax claim arising, the Purchaser or any
Group Company which becomes aware of that event shall give
notice (and the Purchaser shall procure that such notice is
given by the relevant Group Company) in writing to the Seller
as soon as reasonably practicable and, in any event, in the
case of the receipt of any written assessment from any Tax
Authority which constitutes a Tax claim, within 10 days of
the date of issue of such Tax claim.
10.2 Notification of Claims under this Agreement
Notices of claims under this Agreement shall be given by the Purchaser
to the Seller within the time limits specified in Clause 9.1,
specifying full information in relation to the legal and factual basis
of the claim and the evidence on which the Purchaser relies and, if
practicable, an estimate of the amount of Losses which are, or are to
be, the subject of the claim (including any Losses which are
contingent on the occurrence of any future event).
10.3 Commencement of Proceedings
Any claim notified pursuant to Clause 10.2 shall (if it has not been
previously satisfied, settled or withdrawn) be deemed to be
irrevocably withdrawn six months after the notice is given pursuant to
Clause 10.2 or in the case of any contingent liability, six months
after such contingent liability becomes an actual liability and is due
and payable unless legal proceedings in respect of it: (i) have been
commenced by being both issued and served; and (ii) are being and
continue to be pursued with reasonable diligence.
10.4 Investigation by the Seller
In connection with any matter or circumstance that may give rise to a
claim against the Seller under this Agreement:
10.4.1 the Purchaser shall allow, and shall procure that the
relevant Group Company allows, the Seller and their tax,
financial, accounting or legal advisers to investigate the
matter or circumstance alleged to give rise to a claim and
whether and to what extent any amount is payable in respect
of such claim; and
10.4.2 the Purchaser shall disclose to the Seller all material of
which the Purchaser is aware which relates to the claim and
shall (and shall procure that any other relevant members of
the Purchaser's Group shall) give, subject to their being
paid all
20
reasonable costs and expenses, all such information and
assistance (including access to premises and personnel, and
the right to examine and copy or photograph any assets,
accounts, documents and records) as the Seller or its tax,
financial, accounting or legal advisers may reasonably
request, subject to the Seller agreeing in such form as the
Purchaser may reasonably require to keep all such
information confidential and to use it only for the purpose
of investigating and defending the claim in question.
10.5 Conduct of Third Party Claims
If the matter or circumstance that may give rise to a claim against
the Seller under this Agreement is a result of or in connection with a
claim by or liability to a third party, then the Purchaser or other
member of the Purchaser's Group shall be entitled, in its absolute
discretion, to take such action as it shall deem necessary to avoid,
dispute, deny, defend, resist, appeal, compromise or contest such
claim or liability (including, without limitation, making
counterclaims or other claims against third parties) but shall, so far
as practicable, consult with the Seller before taking any such action.
11 Limitation of Purchaser's Liability
11.1 Time Limitation for Claims
The Purchaser shall not be liable under this Agreement in respect of
any claim unless a notice of the claim is given by the Seller to the
Purchaser:
11.1.1 in the case of any claim under paragraph 12 of Schedule 7
(tax warranties), within three years following Completion;
and
11.1.2 in the case of any other claim, within 18 months following
Completion,
except that there shall be no time limitation for giving notice of any
claim under paragraphs 1.1 and 14 of Schedule 7.
Any claim notified by the Seller to the Purchaser pursuant to this
Clause shall specify the matters set out in Clause 12.2.
11.2 Minimum Claims
11.2.1 The Purchaser shall not be liable under this Agreement in
respect of any individual claim (or a series of claims
arising from substantially identical facts or circumstances)
where the liability agreed or determined (disregarding the
provisions of this Clause 11.2) in respect of any such claim
or series of claims does not exceed HK$1,000,000.
11.2.2 Where the liability agreed or determined in respect of any
such claim or series of claims exceeds HK$1,000,000, the
liability of the Purchaser shall be for the whole amount of
the liability and not only the excess.
11.3 Aggregate Minimum Claims
11.3.1 The Purchaser shall not be liable under this Agreement in
respect of any claim unless the aggregate amount of all
claims for which the Purchaser would otherwise be liable
under this Agreement (disregarding the provisions of this
Clause 11.3) exceeds HK$20,000,000.
11.3.2 Where the liability agreed or determined in respect of all
claims referred to in Clause 11.3.1 exceeds HK$20,000,000,
the liability of the Purchaser shall be for the whole amount
of the liability and not only the excess.
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11.4 Maximum Liability
The aggregate liability of the Purchaser in respect of all breaches of
this Agreement shall not exceed the Consideration.
11.5 Provisions
The Purchaser shall not be liable under this Agreement in respect of
any claim if and to the extent that proper allowance, provisions or
reserve is made in the Purchaser's Accounts or the Purchaser's
Management Accounts for the matter giving rise to the claim.
11.6 Matters Arising Subsequent to this Agreement
The Purchaser shall not be liable under this Agreement in respect of
any matter to the extent that the same would not have occurred but
for:
11.6.1 Agreed matters
any matter or thing done or omitted to be done pursuant to and
in compliance with this Agreement or otherwise at the request
in writing or with the approval in writing of the Seller;
11.6.2 Changes in legislation
(i) the passing of, or any change in, after the date of
this Agreement, any law, rule, regulation or
administrative practice of any government,
governmental department, agency or regulatory body
including (without prejudice to the generality of the
foregoing) any increase in the rates of Taxation or
any imposition of Taxation or any withdrawal of relief
from Taxation not actually (or prospectively) in
effect at the date of this Agreement; or
(ii) any change after the date of this Agreement of any
generally accepted interpretation or application of
any legislation;
11.6.3 Accounting and Taxation Policies
any change in accounting or Taxation policy, advance ruling,
standards, bases or practice of the Seller or any of the
Purchaser's Group Companies introduced or having effect after
Completion.
11.7 Recovery from Third Parties following Recovery from the Purchaser
If the Purchaser has paid an amount in discharge of any claim under
this Agreement and the Seller is entitled to recover (whether by
payment, discount, credit, relief, insurance or otherwise) from a
third party a sum which indemnifies or compensates the Seller (in
whole or in part) in respect of the loss or liability which is the
subject matter of the claim, the Seller shall pay to the Purchaser as
soon as practicable after receipt an amount equal to (i) any sum
recovered from the third party less any costs and expenses incurred
in obtaining such recovery (less any Taxation attributable to the
recovery after taking account of any tax relief available in respect
of any matter giving rise to the claim) or, if less (ii) the amount
previously paid by the Purchaser to the Seller less any Taxation
attributable to it.
11.8 Mitigation of Losses
The Seller shall procure that all reasonable steps are taken and all
reasonable assistance is given to avoid or mitigate any Losses which
in the absence of mitigation might give rise to a liability in respect
of any claim under this Agreement.
22
11.9 Fraud
None of the limitations contained in this Clause 11 shall apply to any
claim which arises or is increased, or to the extent to which it
arises or is increased, as the consequence of, or which is delayed as
a result of, fraud by the Purchaser, any Purchaser's Group Company or
any of their respective directors, officers, employees or agents.
12 Claims Against the Purchaser
12.1 Notification of Potential Claims
12.1.1 If the Seller becomes aware of any fact, matter or
circumstance that may give rise to a claim against the
Purchaser under this Agreement, the Seller shall as soon as
reasonably practicable give a notice in writing to the
Purchaser setting out such information as is available to the
Seller as is reasonably necessary to enable the Purchaser to
assess the merits of the claim, to act to preserve evidence
and to make such provision as the Purchaser may consider
necessary.
12.1.2 In the event of any Tax claim arising, the Seller on becoming
aware of that event shall give notice in writing to the
Purchaser as soon as reasonably practicable and, in any
event, in the case of the receipt of any written assessment
from any Tax Authority which constitutes a Tax claim, within
10 days of the date of issue of such Tax claim.
12.2 Notification of Claims under this Agreement
Notices of claims under this Agreement shall be given by the Seller to
the Purchaser within the time limits specified in Clause 11.1,
specifying full information in relation to the legal and factual basis
of the claim and the evidence on which the Seller relies and, if
practicable, an estimate of the amount of Losses which are, or are to
be, the subject of the claim (including any Losses which are
contingent on the occurrence of any future event).
12.3 Commencement of Proceedings
Any claim notified pursuant to Clause 12.2 shall (if it has not been
previously satisfied, settled or withdrawn) be deemed to be
irrevocably withdrawn six months after the notice is given pursuant to
Clause 12.2 or in the case of any contingent liability, six months
after such contingent liability becomes an actual liability and is due
and payable unless legal proceedings in respect of it: (i) have been
commenced by being both issued and served; and (ii) are being and
continue to be pursued with reasonable diligence.
12.4 Investigation by the Purchaser
In connection with any matter or circumstance that may give rise to a
claim against the Purchaser under this Agreement:
12.4.1 the Seller shall allow the Purchaser and its tax, financial,
accounting or legal advisers to investigate the matter or
circumstance alleged to give rise to a claim and whether and
to what extent any amount is payable in respect of such
claim; and
12.4.2 the Seller shall disclose to the Purchaser all material of
which the Seller is aware which relates to the claim and
shall give, subject to their being paid all reasonable costs
and expenses, all such information and assistance (including
access to premises and personnel, and the right to examine
and copy or photograph any assets, accounts, documents and
records) as the Purchaser or its tax, financial, accounting
or legal advisers may reasonably request, subject to the
Purchaser agreeing in such form
23
as the Seller may reasonably require to keep all such
information confidential and to use it only for the purpose
of investigating and defending the claim in question.
12.5 Conduct of Third Party Claims
If the matter or circumstance that may give rise to a claim against
the Purchaser under this Agreement is a result of or in connection
with a claim by or liability to a third party, then the Seller shall
be entitled, in its absolute discretion, to take such action as it
shall deem necessary to avoid, dispute, deny, defend, resist, appeal,
compromise or contest such claim or liability (including, without
limitation, making counterclaims or other claims against third
parties) but shall, so far as practicable, consult with the Purchaser
before taking any such action.
13 Confidentiality
13.1 Announcements
Pending Completion, no announcement or circular in connection with the
existence or the subject matter of this Agreement shall be made or
issued by or on behalf of the Seller or the Purchaser without the
prior written approval of the Seller and the Purchaser. This shall not
affect any announcement or circular required by law or any regulatory
body or the rules of any recognised stock exchange but the party with
an obligation to make an announcement or issue a circular shall
consult with the other party insofar as is reasonably practicable
before complying with such an obligation.
13.2 Confidentiality
13.2.1 The Confidentiality Agreement shall cease to have any force
or effect from the date of this Agreement.
13.2.2 Subject to Clause 13.1 and Clause 13.2.3:
(i) the Seller and the Purchaser shall treat as strictly
confidential and not disclose or use any information
received or obtained as a result of entering into this
Agreement (or any agreement entered into pursuant to
this Agreement) which relates to:
(a) the provisions of this Agreement and any
agreement entered into pursuant to this
Agreement; or
(b) the negotiations relating to this Agreement (and
any such other agreements);
(ii) the Seller shall treat as strictly confidential and
not disclose or use any information relating to the
Group Companies following Completion and any other
information relating to the business, financial or
other affairs (including future plans and targets) of
the Purchaser's Group;
(iii) the Purchaser shall treat as strictly confidential and
not disclose or use any information relating to the
business, financial or other affairs (including future
plans and targets) of the Seller's Group including,
prior to Completion, the Group Companies.
13.2.3 Clause 13.2.2 shall not prohibit disclosure or use of any
information if and to the extent:
24
(i) the disclosure or use is required by law, any
government or regulatory body or any recognised stock
exchange;
(ii) the disclosure or use is required to vest the full
benefit of this Agreement in the Seller or the
Purchaser;
(iii) the disclosure or use is required for the purpose of
any judicial proceedings arising out of this Agreement
or any other agreement entered into under or pursuant
to this Agreement or the disclosure is made to a Tax
Authority in connection with the Tax affairs of the
disclosing party;
(iv) the disclosure is made to professional advisers of the
Seller or the Purchaser on terms that such
professional advisers undertake to comply with the
provisions of Clause 13.2.2 in respect of such
information as if they were a party to this Agreement;
(v) the information is or becomes publicly available
(other than by breach of the Confidentiality Agreement
at any time prior to the signing of this Agreement or
of this Agreement);
(vi) the other party has given prior written approval for
the disclosure or use; or
(vii) the information is independently developed after
Completion,
provided that prior to disclosure or use of any information
pursuant to Clause 13.2.3(i), (ii) or (iii), the party
concerned shall promptly notify the other parties of such
requirement with a view to providing the other parties with
the opportunity to contest such disclosure or use or otherwise
to agree the timing and content of such disclosure or use.
14 Other Provisions
14.1 Further Assurances
14.1.1 The Seller and the Purchaser shall (and shall use reasonable
endeavours to procure that any necessary third party shall)
from time to time execute such documents and perform such
acts and things, as either of the Seller or the Purchaser may
reasonably require, to transfer the Sale Shares and the Sale
Assets to the Purchaser and to give each of them the full
benefit of this Agreement. Each of the Seller and the
Purchaser undertakes to the other promptly to provide all
information and assistance which the other may reasonably
request from time to time for the purpose of facilitating
prompt and full compliance with the public disclosure
requirements of the Listing Rules and the Takeovers Code
applicable to the requesting party.
14.1.2 The Purchaser shall (and shall procure that the relevant
Group Companies shall) retain for a reasonable period from
Completion the books, records and documents of the Group
Companies to the extent they relate to the period prior to
Completion and shall (and shall procure that the relevant
Group Companies shall) allow the Seller reasonable access to
such books, records and documents, including the right to
take copies.
14.2 Whole Agreement
14.2.1 This Agreement contains the whole agreement between the
Seller and the Purchaser relating to the subject matter of
this Agreement at the date of this Agreement, to the
25
exclusion of any terms implied by law which may be excluded
by contract, and supersedes any previous written or oral
agreement between the Seller and the Purchaser in relation to
the matters dealt with in this Agreement.
14.2.2 The Purchaser acknowledges that it has not been induced to
enter into this Agreement by any representation, warranty or
undertaking not expressly incorporated into it.
14.2.3 The Seller acknowledges that it has not been induced to enter
into this Agreement by any representation, warranty or
undertaking not expressly incorporated into it.
14.2.4 So far as is permitted by law and except in the case of
fraud, the Seller and the Purchaser agrees and acknowledges
that its only right and remedy in relation to any
representation, warranty or undertaking made or given in
connection with this Agreement shall be for breach of the
terms of this Agreement to the exclusion of all other rights
and remedies (including those in tort or arising under
statute).
14.2.5 In Clauses 14.2.1 to 14.2.3 and 14.3, "this Agreement"
includes the Seller's Disclosure Letter, the Purchaser's
Disclosure Letter and all documents entered into pursuant to
this Agreement.
14.3 Reasonableness
The Seller and the Purchaser confirms it has received independent
legal advice relating to all the matters provided for in this
Agreement, including the terms of Clause 14.2 (Whole Agreement), and
agrees that the provisions of this Agreement are fair and reasonable.
14.4 Assignment
14.4.1 Except as otherwise expressly provided in this Agreement,
neither the Seller nor the Purchaser may without the prior
written consent of the other parties, assign, grant any
security interest over, hold on trust or otherwise transfer
the benefit of the whole or any part of this Agreement.
14.4.2 Except as otherwise expressly provided in this Agreement, the
Seller or the Purchaser may, without the consent of the other
parties, assign to a connected company the benefit of the
whole or any part of this Agreement, provided that:
(i) such assignment shall not be absolute but shall be
expressed to have effect only for so long as the
assignee remains a connected company of the party
concerned;
(ii) the assignee shall not be entitled to receive under
this Clause any greater amount than that to which the
assignor would have been entitled; and
(iii) it shall be a term of the assignment that the assignee
takes the subject matter subject to any prior equities
in favour of the Purchaser or the Seller (as the case
may be).
For the purposes of this Clause, a "connected company" is a
company which is a subsidiary of the party concerned or which
is a holding company of such party or a subsidiary of such
holding company.
14.4.3 For the avoidance of doubt, this Clause 14.4 shall survive
the termination of this Agreement.
26
14.5 Variation
No variation of this Agreement shall be effective unless in writing
and signed by or on behalf of the Seller and the Purchaser.
14.6 Time of the Essence
Time shall be of the essence of this Agreement both as regards any
dates, times and periods mentioned and as regards any dates, times and
periods which may be substituted for them in accordance with this
Agreement or by agreement in writing between the Seller and the
Purchaser.
14.7 Method of Payment
Wherever in this Agreement provision is made for the payment by one
party to the other, such payment shall be effected by crediting for
same day value the account specified by the payee to the payer,
reasonably in advance and in sufficient detail to enable payment by
telegraphic or other electronic means to be effected on or before the
due date for payment.
14.8 Costs
14.8.1 The Seller shall bear all costs incurred by it in connection
with the preparation, negotiation and entry into of this
Agreement.
14.8.2 The Purchaser shall bear all such costs incurred by it in
connection with the preparation, negotiation and entry into
of this Agreement.
14.9 Stamp Duty, Fees and Taxes
The Purchaser shall bear the cost of all stamp duty and all
registration and transfer taxes and duties or their equivalents in all
jurisdictions where such fees, taxes and duties are payable as a
result of the transactions contemplated by this Agreement. The
Purchaser shall be responsible for arranging the payment of such stamp
duty and all other such fees, taxes and duties, including fulfilling
any administrative or reporting obligation imposed by the jurisdiction
in question in connection with the payment of such taxes and duties.
The Purchaser shall indemnify the Seller or any other member of the
Seller's Group against any Losses suffered by the Seller or member of
the Seller's Group as a result of the Purchaser failing to comply with
its obligations under this Clause 14.9.
14.10 Interest
If the Seller or the Purchaser defaults in the payment when due of any
sum payable under this Agreement, its liability shall be increased to
include interest on such sum from the date when such payment is due
until the date of actual payment (after as well as before judgment) at
a rate per annum of two per cent above the best lending rate for HK$
from time to time of The Hongkong and Shanghai Banking Corporation
Limited. Such interest shall accrue from day to day and shall be
compounded monthly.
14.11 Grossing-up of Indemnity Payments
14.11.1 Where any payment is made under this Agreement pursuant to an
indemnity, compensation or reimbursement provision and that
sum is subject to a charge to Taxation in the hands of the
recipient (other than Taxation attributable to a payment
being properly treated as an adjustment to the consideration
paid by the Purchaser for the Group), the sum payable shall
be increased to such sum as will ensure that, after
27
payment of such Taxation (and after giving credit for any
tax relief available to the recipient in respect of the
matter giving rise to the payment), the recipient shall be
left with a sum equal to the sum that it would have
received in the absence of such a charge to taxation.
14.11.2 Where any sum constituting an indemnity, compensation or
reimbursement to any party to this Agreement (the "Party") is
paid to a person other than the Party, but is treated as
taxable in the hands of the Party, the payer shall promptly
pay to the Party such sum as shall reimburse the Party for
all Taxation suffered by it in respect of the payment (after
giving credit for any tax relief available to the Party in
respect of the matter giving rise to the payment).
14.12 Notices
14.12.1 Any notice or other communication in connection with this
Agreement (each, a "Notice") shall be:
(i) in writing;
(ii) delivered by hand, fax, pre-paid first class post or
courier.
14.12.2 A Notice to the Seller shall be sent to the following
address, or such other person or address as the Seller may
notify to the Purchaser from time to time:
▇▇/▇
▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇'▇ ▇▇▇▇
▇▇▇▇▇▇ ▇▇▇
▇▇▇▇ ▇▇▇▇
Fax: 2962 5725
Attention: Company Secretary
14.12.3 A Notice to the Purchaser shall be sent to the following
address, or such other person or address as the Purchaser may
notify to the Seller from time to time:
9th Floor, ▇▇▇▇ Y Centre
▇▇ ▇▇▇▇ ▇▇ ▇▇▇▇
▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇
Fax: 2372 0611
Attention: Company Secretary
14.12.4 A Notice shall be effective upon receipt and shall be deemed
to have been received:
(i) two Business Days after posting, if delivered by
pre-paid first class post;
(ii) at the time of delivery, if delivered by hand or
courier;
(iii) at the time of transmission in legible form, if
delivered by fax.
28
14.13 Invalidity
14.13.1 If any provision in this Agreement shall be held to be
illegal, invalid or unenforceable, in whole or in part, the
provision shall apply with whatever deletion or modification
is necessary so that the provision is legal, valid and
enforceable and gives effect to the commercial intention of
the parties.
14.13.2 To the extent it is not possible to delete or modify the
provision, in whole or in part, under Clause 14.13.1, then
such provision or part of it shall, to the extent that it is
illegal, invalid or unenforceable, be deemed not to form part
of this Agreement and the legality, validity and
enforceability of the remainder of this Agreement shall,
subject to any deletion or modification made under Clause
14.13.1, not be affected.
14.14 Counterparts
This Agreement may be entered into in any number of counterparts, all
of which taken together shall constitute one and the same instrument.
The Seller and the Purchaser may enter into this Agreement by signing
any such counterpart.
14.15 Governing Law and Submission to Jurisdiction
14.15.1 This Agreement shall be governed by and construed in
accordance with the laws of Hong Kong.
14.15.2 The Seller and the Purchaser irrevocably agrees that the
courts of Hong Kong are to have exclusive jurisdiction to
settle any dispute which may arise out of or in connection
with this Agreement and that accordingly any proceedings
arising out of or in connection with this Agreement shall be
brought in such courts. The Seller and the Purchaser
irrevocably submits to the jurisdiction of such courts and
waives any objection to proceedings in any such court on the
ground of venue or on the ground that proceedings have been
brought in an inconvenient forum.
29
In witness whereof this Agreement has been duly executed.
SIGNED by )
on behalf of the Seller )
in the presence of: )
SIGNED by )
on behalf of the Purchaser )
in the presence of: )
30
Schedule 1
The Group
1 Particulars of the Company
Name of Company: Ipswich Holdings Limited
Registered number: 370317
Registered office: P.O. Box 957, Offshore Incorporations
Centre, Road Town, Tortola, British
Virgin Islands
Date and place of incorporation: 18 February 2000, British Virgin Islands
Issued share capital: USD1.00 divided into 1 share of USD1.00
Authorised share capital: USD50,000.00 divided into 50,000 shares
of USD1.00
Registered shareholders and shares held PCCW Properties Limited (1 share)
(as at the date of this Agreement):
Beneficial shareholders and shares held PCCW Properties Limited (1 share)
(as at the date of this Agreement):
Registered shareholders and shares held PCCW Limited (2 shares)
(immediately after the Restructuring):
Beneficial shareholders and shares held PCCW Limited (2 shares)
(immediately after the Restructuring):
Directors: ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇ Tin Fan
▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇
Mak Chi ▇▇▇
▇▇▇ Kon ▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇
Secretary: PCCW Secretaries Limited
31
2 Particulars of the Subsidiaries
Name of Company: Extra Lite International Limited
Registered number: 337656
Registered office: P.O. Box 957, Offshore Incorporations
Centre, Road Town, Tortola, British
Virgin Islands
Date and place of incorporation: 6 August 1999, British Virgin Islands
Issued share capital: USD1.00 divided into 1 share of USD1.00
Authorised share capital: USD50,000.00 divided into 50,000 shares
of USD1.00
Registered shareholders and shares held Asian Motion Limited (1 share)
(as at the date of this Agreement):
Beneficial shareholders and shares held Asian Motion Limited (1 share)
(as at the date of this Agreement):
Registered shareholders and shares held Ipswich Holdings Limited (1 share)
(immediately after the Restructuring):
Beneficial shareholders and shares held Ipswich Holdings Limited (1 share)
(immediately after the Restructuring):
Directors: ▇▇▇ ▇▇▇ Hong, ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇ Tin Fan
Mak Chi Kin
Secretary: PCCW Secretaries Limited
32
Name of Company: Cyber-Port Management Limited
Registered number: 700578
Registered office: ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇
▇▇▇▇'▇ ▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇, ▇▇▇▇ ▇▇▇▇
Date and place of incorporation: 12 January 2000, Hong Kong
Issued share capital: HKD2.00 divided into 2 shares of HKD1.00
Authorised share capital: HKD10,000 divided into 10,000 shares of
HKD1.00
Registered shareholders and shares held PCCW Properties Limited (1 share)
(as at the date of this Agreement): PCCW Nominees Limited (1 share)
Beneficial shareholders and shares held PCCW Properties Limited (2 shares)
(as at the date of this Agreement):
Registered shareholders and shares held Ipswich Holdings Limited (1 share)
(immediately after the Restructuring): Excel Bright Properties Limited
(1 share)
Beneficial shareholders and shares held Ipswich Holdings Limited (2 shares)
(immediately after the Restructuring):
Directors: Alexander ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇ Tin Fan
▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇
Secretary: PCCW Secretaries Limited
33
Name of Company: PCCW Real Estate Agency Limited
Registered number: 706704
Registered office: ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇
▇▇▇▇'▇ ▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇, ▇▇▇▇ ▇▇▇▇
Date and place of incorporation: 6 March 2000, Hong Kong
Issued share capital: HKD2.00 divided into 2 shares of HKD1.00
Authorised share capital: HKD10,000 divided into 10,000 shares of
HKD1.00
Registered shareholders and shares held PCCW Properties Limited (1 share)
(as at the date of this Agreement): Pacific Century Regional Services
Limited (1 share)
Beneficial shareholders and shares held PCCW Properties Limited (2 shares)
(as at the date of this Agreement):
Registered shareholders and shares held Ipswich Holdings Limited (1 share)
(immediately after the Restructuring): Excel Bright Properties Limited
(1 share)
Beneficial shareholders and shares held Ipswich Holdings Limited (2 shares)
(immediately after the Restructuring):
Directors: Alexander ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇ See, ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇ Tin Fan
▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇
Secretary: PCCW Secretaries Limited
34
Name of Company: Pride Pacific Limited
Registered number: 832235
Registered office: ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇
▇▇▇▇'▇ ▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇, ▇▇▇▇ ▇▇▇▇
Date and place of incorporation: 5 February 2003, Hong Kong
Issued share capital: HKD2.00 divided into 2 shares of HKD1.00
Authorised share capital: HKD10,000 divided into 10,000 shares of
HKD1.00
Registered shareholders and shares held PCCW Properties Limited (1 share)
(as at the date of this Agreement): PCCW Nominees Limited (1 share)
Beneficial shareholders and shares held PCCW Properties Limited (2 shares)
(as at the date of this Agreement):
Registered shareholders and shares held Ipswich Holdings Limited (1 share)
(immediately after the Restructuring): Excel Bright Properties Limited
(1 share)
Beneficial shareholders and shares held Ipswich Holdings Limited (2 shares)
(immediately after the Restructuring):
Directors: Alexander ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇ See, ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇ Tin Fan
▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇
Secretary: PCCW Secretaries Limited
35
Name of Company: Island South Property Management Limited
Registered number: 831223
Registered office: ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇
▇▇▇▇'▇ ▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇, ▇▇▇▇ ▇▇▇▇
Date and place of incorporation: 24 January 2003, Hong Kong
Issued share capital: HKD2.00 divided into 2 shares of HKD1.00
Authorised share capital: HKD10,000 divided into 10,000 shares of
HKD1.00
Registered shareholders and shares held PCCW Properties Limited (1 share)
(as at the date of this Agreement): PCCW Nominees Limited (1 share)
Beneficial shareholders and shares held PCCW Properties Limited (2 shares)
(as at the date of this Agreement):
Registered shareholders and shares held Ipswich Holdings Limited (1 share)
(immediately after the Restructuring): Excel Bright Properties Limited
(1 share)
Beneficial shareholders and shares held Ipswich Holdings Limited (2 shares)
(immediately after the Restructuring):
Directors: Alexander ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇ See, ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇ Tin Fan
▇▇▇ ▇▇▇ Hong, ▇▇▇▇▇▇
▇▇▇ Chi Kin
Secretary: PCCW Secretaries Limited
36
Name of Company: Midgre Properties Limited
Registered number: 361474
Registered office: P.O. Box 957, Offshore Incorporations
Centre, Road Town, Tortola, British
Virgin Islands
Date and place of incorporation: 5 January 2000, British Virgin Islands
Issued share capital: USD1.00 divided into 1 share of USD1.00
Authorised share capital: USD50,000.00 divided into 50,000 shares
of USD1.00
Registered shareholders and shares held PCCW Properties Limited (1 share)
(as at the date of this Agreement):
Beneficial shareholders and shares held PCCW Properties Limited (1 share)
(as at the date of this Agreement):
Registered shareholders and shares held Ipswich Holdings Limited (1 share)
(immediately after the Restructuring):
Beneficial shareholders and shares held Ipswich Holdings Limited (1 share)
(immediately after the Restructuring):
Directors: ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇ Tin Fan
▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇ Hong, ▇▇▇▇▇▇
▇▇▇ Chi ▇▇▇
▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Lui Kon Wai
Secretary: PCCW Secretaries Limited
37
Name of Company: Partner Link Investments Limited
Registered number: 488877
Registered office: P.O. Box 957, Offshore Incorporations
Centre, Road Town, Tortola, British
Virgin Islands
Date and place of incorporation: 26 March 2002, British Virgin Islands
Issued share capital: USD1.00 divided into 1 share of USD1.00
Authorised share capital: USD50,000.00 divided into 50,000 share of
USD1.00
Registered shareholders and shares held Midgre Properties Limited (1 share)
(as at the date of this Agreement):
Beneficial shareholders and shares held Midgre Properties Limited (1 share)
(as at the date of this Agreement):
Registered shareholders and shares held Midgre Properties Limited (1 share)
(immediately after the Restructuring):
Beneficial shareholders and shares held Midgre Properties Limited (1 share)
(immediately after the Restructuring):
Directors: ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇ Tin Fan
▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Mak Chi ▇▇▇
▇▇▇ Chi Hong, ▇▇▇▇▇▇
▇▇▇ Kon Wai
Secretary: PCCW Secretaries Limited
38
Name of Company: Excel Bright Properties Limited
Registered number: 469846
Registered office: P.O. Box 957, Offshore Incorporations
Centre, Road Town, Tortola, British
Virgin Islands
Date and place of incorporation: 16 November 2001, British Virgin Islands
Issued share capital: USD1.00 divided into 1 share of USD1.00
Authorised share capital: USD50,000.00 divided into 50,000 shares
of USD1.00
Registered shareholders and shares held PCCW Properties Limited (1 share)
(as at the date of this Agreement):
Beneficial shareholders and shares held PCCW Properties Limited (1 share)
(as at the date of this Agreement):
Registered shareholders and shares held Ipswich Holdings Limited (1 share)
(immediately after the Restructuring):
Beneficial shareholders and shares held Ipswich Holdings Limited (1 share)
(immediately after the Restructuring):
Directors: ▇▇▇▇ Tin Fan
▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇ Hong, ▇▇▇▇▇▇
▇▇▇ Kon ▇▇▇
▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Mak Chi Kin
Secretary: PCCW Secretaries Limited
39
Name of Company: ▇▇▇▇▇▇▇ Limited
Registered number: 322881
Registered office: ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇
▇▇▇▇'▇ ▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇, ▇▇▇▇ ▇▇▇▇
Date and place of incorporation: ▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇ ▇▇▇▇
Issued share capital: HKD1,000 divided into 100 shares of
HKD10.00
Authorised share capital: HKD1,000 divided into 100 shares of
HKD10.00
Registered shareholders and shares held Midgre Properties Limited (98 shares)
(as at the date of this Agreement): PCCW Nominees Limited (1 share)
PCCW-HKT Limited (1 share)
Beneficial shareholders and shares held PCCW-HKT Limited (2 shares)
(as at the date of this Agreement): Midgre Properties Limited (98 shares)
Registered shareholders and shares held Midgre Properties Limited (98 shares)
(immediately after the Restructuring): PCCW Nominees Limited (1 share)
PCCW-HKT Limited (1 share)
Beneficial shareholders and shares held PCCW-HKT Limited (2 shares)
(immediately after the Restructuring): Midgre Properties Limited (98 shares)
Directors: ▇▇▇▇ Tin Fan
Alexander ▇▇▇▇▇▇▇ ▇▇▇▇▇
Mak Chi Kin
Secretary: PCCW Secretaries Limited
40
Name of Company: Gain Score Limited
Registered number: 217595
Registered office: P.O. Box 957, Offshore Incorporations
Centre, Road Town, Tortola, British
Virgin Islands
Date and place of incorporation: 5 February 1997, British Virgin Islands
Issued share capital: USD1.00 divided into 1 share of USD1.00
Authorised share capital: USD50,000.00 divided into 50,000 shares
of USD1.00
Registered shareholders and shares held Excel Bright Properties Limited
(as at the date of this Agreement): (1 share)
Beneficial shareholders and shares held Excel Bright Properties Limited
(as at the date of this Agreement): (1 share)
Registered shareholders and shares held Excel Bright Properties Limited
(immediately after the Restructuring): (1 share)
Beneficial shareholders and shares held Excel Bright Properties Limited
(immediately after the Restructuring): (1 share)
Directors: ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇ Tin Fan
▇▇▇ ▇▇▇ Hong, ▇▇▇▇▇▇
▇▇▇ Kon ▇▇▇
▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Mak Chi Kin
Secretary: PCCW Secretaries Limited
41
Name of Company: Beijing ▇▇▇▇ ▇▇▇ House & Land Estate
Development Co Limited
Registered number: 006816
Registered office: Unit 1318, IBM Tower,
Pacific Century Place,
2A Gong Ti,
▇▇▇ ▇▇,
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇
Date and place of incorporation: 29 November 1993, The People's Republic
of China
Issued share capital: USD50,000,000.00
Authorised share capital: USD100,000,000
Registered shareholders and shares held BMEI Co. Ltd.
(as at the date of this Agreement): Gain Score Limited
Beijing JingGong Real and Estate Development Head Company
Beneficial shareholders and shares held BMEI Co. Ltd.
(as at the date of this Agreement): Gain Score Limited
Beijing JingGong Real and Estate Development Head Company
Registered shareholders and shares held BMEI Co. Ltd.
(immediately after the Restructuring): Gain Score Limited
Beijing JingGong Real and Estate Development Head Company
Beneficial shareholders and shares held BMEI Co. Ltd.
(immediately after the Restructuring): Gain Score Limited
Beijing JingGong Real and Estate Development Head Company
Directors: ▇▇▇ ▇▇▇ Hong, ▇▇▇▇▇▇
▇▇▇▇▇, ▇▇ ▇▇
Fu Lian Jun
Mak Chi ▇▇▇
▇▇▇ Kon ▇▇▇
▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Tan Phiak Chuan, ▇▇▇▇▇▇
▇▇, Guang ▇▇▇
▇▇▇▇, ▇▇▇▇ ▇▇▇▇
Secretary: n/a
42
Name of Company: PCCW Properties (HK) Limited
Registered number: 675179
Registered office: ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇
▇▇▇▇'▇ ▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇, ▇▇▇▇ ▇▇▇▇
Date and place of incorporation: ▇▇ ▇▇▇ ▇▇▇▇, ▇▇▇▇ ▇▇▇▇
Issued share capital: HKD2.00 divided into 2 shares of HKD1.00
Authorised share capital: HKD10,000.00 divided into 10,000 shares
of HKD1.00
Registered shareholders and shares held PCCW Properties Limited (1 share)
(as at the date of this Agreement): Pacific Century Regional Services Limited
(1 share)
Beneficial shareholders and shares held PCCW Properties Limited (2 shares)
(as at the date of this Agreement):
Registered shareholders and shares held Ipswich Holdings Limited (1 share)
(immediately after the Restructuring): Excel Bright Properties Limited
(1 share)
Beneficial shareholders and shares held Ipswich Holdings Limited (2 shares)
(immediately after the Restructuring):
Directors: ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇ Hong, ▇▇▇▇▇▇
▇▇▇ Chi Kin
▇▇▇ ▇▇▇ See, ▇▇▇▇▇
Secretary: PCCW Secretaries Limited
43
Name of Company: PCCW Property Management Limited
Registered number: 290458
Registered office: P.O. Box 957, Offshore Incorporations
Centre, Road Town, Tortola, British
Virgin Islands
Date and place of incorporation: 10 August 1998, British Virgin Islands
Issued share capital: USD1.00 divided into 1 share of USD1.00
Authorised share capital: USD50,000.00 divided into 50,000 shares
of USD1.00
Registered shareholders and shares held PCCW Properties Limited (1 share)
(as at the date of this Agreement):
Beneficial shareholders and shares held PCCW Properties Limited (1 share)
(as at the date of this Agreement):
Registered shareholders and shares held Ipswich Holdings Limited (1 share)
(immediately after the Restructuring):
Beneficial shareholders and shares held Ipswich Holdings Limited (1 share)
(immediately after the Restructuring):
Directors: ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇
Mak Chi ▇▇▇
▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Secretary: PCCW Secretaries Limited
44
Name of Company: PCCW Facilities Management Limited
Registered number: 724020
Registered office: ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇
▇▇▇▇'▇ ▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇, ▇▇▇▇ ▇▇▇▇
Date and place of incorporation: 14 July 2000, Hong Kong
Issued share capital: HKD2.00 divided into 2 shares of HKD1.00
Authorised share capital: HKD10,000.00 divided into 10,000 shares
of HKD1.00
Registered shareholders and shares held PCCW Services Limited (1 share)
(as at the date of this Agreement): PCCW Property Management Limited (1 share)
Beneficial shareholders and shares held PCCW Property Management Limited (2
(as at the date of this Agreement): shares)
Registered shareholders and shares held PCCW Property Management Limited (1 share)
(immediately after the Restructuring): Excel Bright Properties Limited
(1 share)
Beneficial shareholders and shares held PCCW Property Management Limited (2
(immediately after the Restructuring): shares)
Directors: Alexander ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇ Tin Fan
▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Mak Chi Kin
Secretary: PCCW Secretaries Limited
45
Name of Company: Wise Union Enterprises Limited
Registered number: 491332
Registered office: P. O. Box 957, Offshore Incorporations
Centre, Road Town, Tortola, British
Virgin Islands
Date and place of incorporation: 12 April 2002, British Virgin Islands
Issued share capital: USD1.00 divided into 1 share of USD1.00
Authorised share capital: USD50,000.00 divided into 50,000 shares
of USD1.00
Registered shareholders and shares held PCCW Property Management Limited (1 share)
(as at the date of this Agreement):
Beneficial shareholders and shares held PCCW Property Management Limited (1 share)
(as at the date of this Agreement):
Registered shareholders and shares held PCCW Property Management Limited (1 share)
(immediately after the Restructuring):
Beneficial shareholders and shares held PCCW Property Management Limited (1 share)
(immediately after the Restructuring):
Directors: Alexander ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇ Tin Fan
▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Mak Chi Kin
Secretary: PCCW Secretaries Limited
46
Name of Company: Beijing Jingwei Property Management Co
Limited
Registered number: 014097
Registered office: ▇▇, ▇▇▇▇▇▇▇' ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇, PRC
Date and place of incorporation: 29 July 1999, The People's Republic of
China
Issued share capital: USD150,000
Authorised share capital: USD150,000
Registered shareholders and shares held Wise Union Enterprises Limited
(as at the date of this Agreement):
Beneficial shareholders and shares held Wise Union Enterprises Limited
(as at the date of this Agreement):
Registered shareholders and shares held Wise Union Enterprises Limited
(immediately after the Restructuring):
Beneficial shareholders and shares held Wise Union Enterprises Limited
(immediately after the Restructuring):
Directors: ▇▇▇ ▇▇▇ Hong, ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Mak Chi ▇▇▇
▇▇▇ Phiak Chuan, ▇▇▇▇▇▇
▇▇ ▇▇▇ Qian
Secretary: n/a
47
Name of Company: Carmay Investment Limited
Registered number: 367862
Registered office: ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇
▇▇▇▇'▇ ▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇, ▇▇▇▇ ▇▇▇▇
Date and place of incorporation: 9 July 1992, Hong Kong
Issued share capital: HKD2.00 divided into 2 shares of HKD1.00
Authorised share capital: HKD10,000.00 divided into 10,000 shares
of HKD1.00
Registered shareholders and shares held PCCW Properties Limited (1 share)
(as at the date of this Agreement): PCCW Nominees Limited (1 share)
Beneficial shareholders and shares held PCCW Properties Limited (2 shares)
(as at the date of this Agreement):
Registered shareholders and shares held Ipswich Holdings Limited (1 share)
(immediately after the Restructuring): Excel Bright Properties Limited
(1 share)
Beneficial shareholders and shares held Ipswich Holdings Limited (2 shares)
(immediately after the Restructuring):
Directors: Alexander ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇ Tin Fan
▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇
Lui Kon ▇▇▇
▇▇▇ Chi Kin
Secretary: PCCW Secretaries Limited
48
Name of Company: ACCA Investment Limited
Registered number: 382126
Registered office: ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇
▇▇▇▇'▇ ▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇, ▇▇▇▇ ▇▇▇▇
Date and place of incorporation: 29 September 1992, Hong Kong
Issued share capital: HKD2.00 divided into 2 shares of HKD1.00
Authorised share capital: HKD10,000.00 divided into 10,000 shares
of HKD1.00
Registered shareholders and shares held PCCW Properties Limited (1 share)
(as at the date of this Agreement): PCCW Nominees Limited (1 share)
Beneficial shareholders and shares held PCCW Properties Limited (2 shares)
(as at the date of this Agreement):
Registered shareholders and shares held Ipswich Holdings Limited (1 share)
(immediately after the Restructuring): Excel Bright Properties Limited
(1 share)
Beneficial shareholders and shares held Ipswich Holdings Limited (2 shares)
(immediately after the Restructuring):
Directors: Alexander ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇ Tin Fan
▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇
Lui Kon ▇▇▇
▇▇▇ Chi Kin
Secretary: PCCW Secretaries Limited
49
Name of Company: Smart Phoenix Limited
Registered number: 578934
Registered office: ▇.▇. ▇▇▇ ▇▇▇
Offshore Incorporations Centre,
Road Town,
Tortola,
British Virgin Islands
Date and place of incorporation: 22 January 2004, British Virgin Islands
Issued share capital -
(as at the date of this Agreement):
Issued share capital USD1.00 divided into 1 share of USD1.00
(immediately after the Restructuring):
Authorised share capital: USD50,000.00 divided into 50,000 shares
of USD1.00
Registered shareholders and shares held Shelf Company to be transferred to
(as at the date of this Agreement): Ipswich Holdings Limited
Beneficial shareholders and shares held Shelf Company to be transferred to
(as at the date of this Agreement): Ipswich Holdings Limited
Registered shareholders and shares held Ipswich Holdings Limited (1 share)
(immediately after the Restructuring):
Beneficial shareholders and shares held Ipswich Holdings Limited (1 share)
(immediately after the Restructuring):
Directors -
(as at the date of this Agreement):
Secretary -
(as at the date of this Agreement):
50
Name of Company: Talent Master Investments Limited
Registered number: 576896
Registered office: P.O. Box 957,
Offshore Incorporations Centre,
Road Town,
Tortola,
British Virgin Islands
Date and place of incorporation: 8 January 2004, British Virgin Islands
Issued share capital -
(as at the date of this Agreement):
Issued share capital USD1.00 divided into 1 share of USD1.00
(immediately after the Restructuring):
Authorised share capital: USD50,000.00 divided into 50,000 shares
of USD1.00
Registered shareholders and shares held Shelf Company to be transferred to
(as at the date of this Agreement): Ipswich Holdings Limited
Beneficial shareholders and shares held Shelf Company to be transferred to
(as at the date of this Agreement): Ipswich Holdings Limited
Registered shareholders and shares held Ipswich Holdings Limited (1 share)
(immediately after the Restructuring):
Beneficial shareholders and shares held Ipswich Holdings Limited (1 share)
(immediately after the Restructuring):
Directors -
(as at the date of this Agreement):
Secretary -
(as at the date of this Agreement):
51
Name of Company: ▇▇▇▇▇▇▇▇ Investments Limited
Registered number: 703664
Registered office: ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇
▇▇▇▇'▇ ▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇, ▇▇▇▇ ▇▇▇▇
Date and place of incorporation: 9 February 2000, Hong Kong
Issued share capital: HKD2.00 divided into 2 shares of HKD1.00
Authorised share capital: HKD10,000.00 divided into 10,000 shares
of HKD1.00
Registered shareholders and shares held PCCW Properties Limited (1 share)
(as at the date of this Agreement): Ipswich Holdings Limited (1 share)
Beneficial shareholders and shares held Ipswich Holdings Limited (2 shares)
(as at the date of this Agreement):
Registered shareholders and shares held Ipswich Holdings Limited (1 share)
(immediately after the Restructuring): Excel Bright Properties Limited
(1 share)
Beneficial shareholders and shares held Ipswich Holdings Limited (2 shares)
(immediately after the Restructuring):
Directors: Alexander ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇ Tin Fan
▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇
Lui Kon ▇▇▇
▇▇▇ Chi Kin
Secretary: PCCW Secretaries Limited
52
Name of Company: ▇▇▇▇▇▇ Developments Limited
Registered number: 336917
Registered office: P.O. Box 957, Offshore Incorporations
Centre, Road Town, Tortola, British
Virgin Islands
Date and place of incorporation: 30 July 1999, British Virgin Islands
Issued share capital: USD1.00 divided into 1 share of USD1.00
Authorised share capital: USD50,000.00 divided into 50,000 shares
of USD1.00
Registered shareholders and shares held Extra Lite International Limited
(as at the date of this Agreement): (1 share)
Beneficial shareholders and shares held Extra Lite International Limited
(as at the date of this Agreement): (1 share)
Registered shareholders and shares held Extra Lite International Limited
(immediately after the Restructuring): (1 share)
Beneficial shareholders and shares held Extra Lite International Limited
(immediately after the Restructuring): (1 share)
Directors: ▇▇▇ ▇▇▇ Hong, ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇ Tin Fan
Mak Chi Kin
Secretary: PCCW Secretaries Limited
53
Name of Company: Cyber-Port Limited
Registered number: 669442
Registered office: ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇
▇▇▇▇'▇ ▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇, ▇▇▇▇ ▇▇▇▇
Date and place of incorporation: ▇▇ ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇ ▇▇▇▇
Issued share capital: HKD2.00 divided into 2 shares of HKD1.00
Authorised share capital: HKD10,000.00 divided into 10,000 shares
of HKD1.00
Registered shareholders and shares held Asian Motion Limited (1 share)
(as at the date of this Agreement): ▇▇▇▇▇▇ Developments Limited
(1 share)
Beneficial shareholders and shares held ▇▇▇▇▇▇ Developments Limited
(as at the date of this Agreement): (2 shares)
Registered shareholders and shares held ▇▇▇▇▇▇ Developments Limited
(immediately after the Restructuring): (1 share)
Excel Bright Properties Limited
(1 share)
Beneficial shareholders and shares held ▇▇▇▇▇▇ Developments Limited
(immediately after the Restructuring): (2 shares)
Directors: ▇▇▇ ▇▇▇ Hong, ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇ Tin Fan
▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
Secretary: PCCW Secretaries Limited
54
Name of Company: Carlyle International Limited
Registered number: 685589
Registered office: ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇
▇▇▇▇'▇ ▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇, ▇▇▇▇ ▇▇▇▇
Date and place of incorporation: ▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇ ▇▇▇▇
Issued share capital: HKD2.00 divided into 2 shares of HKD1.00
Authorised share capital: HKD10,000.00 divided into 10,000 shares
of HKD1.00
Registered shareholders and shares held Asian Motion Limited (1 share)
(as at the date of this Agreement): Extra Lite International Limited
(1 share)
Beneficial shareholders and shares held Extra Lite International Limited
(as at the date of this Agreement): (2 shares)
Registered shareholders and shares held Extra Lite International Limited
(immediately after the Restructuring): (1 share)
Excel Bright Properties Limited
(1 share)
Beneficial shareholders and shares held Extra Lite International Limited
(immediately after the Restructuring): (2 shares)
Directors: Alexander ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇ Tin Fan
▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇
Secretary: PCCW Secretaries Limited
55
Schedule 2
The Purchaser's Group
1 Particulars of the Purchaser
Name of Company: ▇▇▇▇ ▇▇▇▇ Gas Holdings Limited
Registered number: 25074 (Bermuda) / F9193 (HK)
Registered office: ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇
Date and place of incorporation: 19-06-1998 Bermuda
Issued share capital: HK$464,506,162.40 divided into
1,161,265,406 shares
Authorised share capital: HK$600,000,000 divided into 1,500,000,000
shares of HK$0.40 each
Shareholders: China Strategic Holdings Limited
No. of shares held: 500,000,000 shares*
Executive Directors: Dr. ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇
▇▇. ▇▇▇, ▇▇▇▇▇
▇▇. ▇▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇. ▇▇▇▇▇ ▇▇▇ ▇▇▇▇
Independent Non-executive Directors: ▇▇. ▇▇▇▇ Wenfu
▇▇. ▇▇▇▇▇ Link ▇▇▇▇, ▇▇▇▇▇
Secretary: ▇▇ ▇▇▇ ▇▇▇, ▇▇▇▇▇
*The 500,000,000 shares are held by Great Joint Profits Limited, a wholly-owned
subsidiary of China Strategic (B.V.I.) Limited which is in turn a wholly-owned
subsidiary of China Strategic Holdings Limited. Both China Strategic (B.V.I.)
Limited and China Strategic Holdings Limited are deemed to be interested in
500,000,000 shares in the Company held by Great Joint Profits Limited.
56
2 Particulars of the Purchaser's Subsidiaries
Name of Company: ▇▇▇▇ ▇▇▇▇ Gas (B.V.I.) Limited
Registered number: 513189
Registered office: P.O. Box 957, Offshore Incorporations
Centre, Road Town, Tortola, British
Virgin Islands
Date and place of incorporation: 12-09-2002 British Virgin Islands
Issued share capital: US$1.00 divided into 1 share
Authorised share capital: US$50,000 divided into 50,000 shares of
US$1.00 each
Registered and beneficial shareholders: ▇▇▇▇ ▇▇▇▇ Gas Holdings Limited
No. of shares held: 1 share
Directors: ▇▇. ▇▇▇, ▇▇▇▇▇
▇▇. ▇▇▇▇ ▇▇▇▇ ▇▇▇▇
Secretary: ▇▇▇▇ ▇▇▇▇ Gas Management Limited
57
Particulars of the Purchaser's Subsidiaries (cont'd)
Name of Company: Digital Delight Limited
Registered number: 502871
Registered office: P.O. Box 957, Offshore Incorporations
Centre, Road Town, Tortola, British
Virgin Islands
Date and place of incorporation: 02-07-2002 British Virgin Islands
Issued share capital: US$1.00 divided into 1 share
Authorised share capital: US$50,000 divided into 50,000 shares of
US$1.00 each
Registered and beneficial shareholders: ▇▇▇▇ ▇▇▇▇ Gas (B.V.I.) Limited
(formerly known as Growth Choice Limited)
No. of shares held: 1 share
Directors: ▇▇. ▇▇▇, ▇▇▇▇▇
▇▇. ▇▇▇▇ ▇▇▇▇ ▇▇▇▇
Secretary: ▇▇▇▇ ▇▇▇▇ Gas Management Limited
58
Particulars of the Purchaser's Subsidiaries (cont'd)
Name of Company: Success Trinity Limited
Registered number: 501388
Registered office: P.O. Box 957, Offshore Incorporations
Centre, Road Town, Tortola, British
Virgin Islands
Date and place of incorporation: 02-07-2002 British Virgin Islands
Issued share capital: US$1.00 divided into 1 share
Authorised share capital: US$50,000 divided into 50,000 shares of
US$1.00 each
Registered and beneficial shareholders: ▇▇▇▇ ▇▇▇▇ Gas (B.V.I.) Limited
(formerly known as Growth Choice Limited)
No. of shares held: 1 share
Directors: ▇▇. ▇▇▇, ▇▇▇▇▇
▇▇. ▇▇▇▇ ▇▇▇▇ ▇▇▇▇
Secretary: ▇▇▇▇ ▇▇▇▇ Gas Management Limited
59
Particulars of the Purchaser's Subsidiaries (cont'd)
Name of Company: Emporium Profits Limited
Registered number: 512134
Registered office: P.O. Box 957, Offshore Incorporations
Centre, Road Town, Tortola, British
Virgin Islands
Date and place of incorporation: 06-09-2002 British Virgin Islands
Issued share capital: US$1.00 divided into 1 share
Authorised share capital: US$50,000 divided into 50,000 shares of
US$1.00 each
Registered and beneficial shareholders: ▇▇▇▇ ▇▇▇▇ Gas (B.V.I.) Limited (formerly
known as Growth Choice Limited)
No. of shares held: 1 share
Directors: ▇▇. ▇▇▇, ▇▇▇▇▇
▇▇. ▇▇▇▇ ▇▇▇▇ ▇▇▇▇
Secretary: ▇▇▇▇ ▇▇▇▇ Gas Management Limited
60
Particulars of the Purchaser's Subsidiaries (cont'd)
Name of Company: Ample Master Resources Limited
Registered number: 513167
Registered office: P.O. Box 957, Offshore Incorporations
Centre, Road Town, Tortola, British
Virgin Islands
Date and place of incorporation: 12-09-2002 British Virgin Islands
Issued share capital: US$1.00 divided into 1 share
Authorised share capital: US$50,000 divided into 50,000 shares of
US$1.00 each
Registered and beneficial shareholders: ▇▇▇▇ ▇▇▇▇ Gas (B.V.I.) Limited (formerly
known as Growth Choice Limited)
No. of shares held: 1 share
Directors: ▇▇. ▇▇▇, ▇▇▇▇▇
▇▇. ▇▇▇▇ ▇▇▇▇ ▇▇▇▇
Secretary: ▇▇▇▇ ▇▇▇▇ Gas Management Limited
61
Particulars of the Purchaser's Subsidiaries (cont'd)
Name of Company: Chance Gateway Limited
Registered number: 513270
Registered office: P.O. Box 957, Offshore Incorporations
Centre, Road Town, Tortola, British
Virgin Islands
Date and place of incorporation: 12-09-2002 British Virgin Islands
Issued share capital: US$1.00 divided into 1 share
Authorised share capital: US$50,000 divided into 50,000 shares of
US$1.00 each
Registered and beneficial shareholders: ▇▇▇▇ ▇▇▇▇ Gas (B.V.I.) Limited
(formerly known as Growth Choice Limited)
No. of shares held: 1 share
Directors: ▇▇. ▇▇▇, ▇▇▇▇▇
▇▇. ▇▇▇▇ ▇▇▇▇ ▇▇▇▇
Secretary: ▇▇▇▇ ▇▇▇▇ Gas Management Limited
62
Particulars of the Purchaser's Subsidiaries (cont'd)
Name of Company: Easy Accurate Profits Limited
Registered number: 513206
Registered office: P.O. Box 957, Offshore Incorporations
Centre, Road Town, Tortola, British
Virgin Islands
Date and place of incorporation: 12-09-2002 British Virgin Islands
Issued share capital: US$1.00 divided into 1 share
Authorised share capital: US$50,000 divided into 50,000 shares of
US$1.00 each
Registered and beneficial shareholders: ▇▇▇▇ ▇▇▇▇ Gas (B.V.I.) Limited
(formerly known as Growth Choice Limited)
No. of shares held: 1 share
Directors: ▇▇. ▇▇▇, ▇▇▇▇▇
▇▇. ▇▇▇▇ ▇▇▇▇ ▇▇▇▇
Secretary: ▇▇▇▇ ▇▇▇▇ Gas Management Limited
63
Particulars of the Purchaser's Subsidiaries (cont'd)
Name of Company: Global High Profits Limited
Registered number: 513307
Registered office: P.O. Box 957, Offshore Incorporations
Centre, Road Town, Tortola, British
Virgin Islands
Date and place of incorporation: 12-09-2002 British Virgin Islands
Issued share capital: US$1.00 divided into 1 share
Authorised share capital: US$50,000 divided into 50,000 shares of
US$1.00 each
Registered and beneficial shareholders: ▇▇▇▇ ▇▇▇▇ Gas (B.V.I.) Limited
(formerly known as Growth Choice Limited)
No. of shares held: 1 share
Directors: ▇▇. ▇▇▇, ▇▇▇▇▇
▇▇. ▇▇▇▇ ▇▇▇▇ ▇▇▇▇
Secretary: ▇▇▇▇ ▇▇▇▇ Gas Management Limited
64
Particulars of the Purchaser's Subsidiaries (cont'd)
Name of Company: Chief Atlantic Profits Limited
Registered number: 514108
Registered office: P.O. Box 957, Offshore Incorporations
Centre, Road Town, Tortola, British
Virgin Islands
Date and place of incorporation: 18-09-2002 British Virgin Islands
Issued share capital: US$1.00 divided into 1 share
Authorised share capital: US$50,000 divided into 50,000 shares of
US$1.00 each
Registered and beneficial shareholders: ▇▇▇▇ ▇▇▇▇ Gas (B.V.I.) Limited
(formerly known as Growth Choice Limited)
No. of shares held: 1 share
Directors: ▇▇. ▇▇▇, ▇▇▇▇▇
▇▇. ▇▇▇▇ ▇▇▇▇ ▇▇▇▇
Secretary: ▇▇▇▇ ▇▇▇▇ Gas Management Limited
65
Particulars of the Purchaser's Subsidiaries (cont'd)
Name of Company: ▇▇▇▇ ▇▇▇▇ Gas Management Limited
Registered number: 789983
Registered office: 9th Floor, ▇▇▇▇ ▇. Centre, ▇▇ ▇▇▇▇ ▇▇
▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇
Date and place of incorporation: 20-03-2002 Hong Kong
Issued share capital: HK$2.00 divided into 2 shares
Authorised share capital: HK$10,000 divided into 10,000 shares of
HK$1.00 each
Shareholders and shares held: ▇▇▇▇ ▇▇▇▇ Gas (B.V.I.) Limited
(formerly known as Growth Choice Limited)
1 share
▇▇▇▇ ▇▇▇▇ Gas Limited
1 share (held for and on behalf of ▇▇▇▇
▇▇▇▇ Gas (B.V.I.) Limited)
Directors: ▇▇. ▇▇▇, ▇▇▇▇▇
▇▇. ▇▇▇▇ ▇▇▇▇ ▇▇▇▇
Secretary: ▇▇▇▇ ▇▇▇▇ Gas Limited
66
Particulars of the Purchaser's Subsidiaries (cont'd)
Name of Company: China Crystal Investment Ltd.
Registered number: 512773
Registered office: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇.▇. ▇▇▇ ▇▇▇, ▇▇▇▇ ▇▇▇▇,
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Date and place of incorporation: 10-09-2002 British Virgin Islands
Issued share capital: US$1.00 divided into 1 share
Authorised share capital: US$50,000 divided into 50,000 shares of
US$1.00 each
Registered and beneficial shareholders: ▇▇▇▇ ▇▇▇▇ Gas (B.V.I.) Limited
No. of shares held: 1 share
Directors: ▇▇. ▇▇▇, ▇▇▇▇▇
▇▇. ▇▇▇▇ ▇▇▇▇ ▇▇▇▇
Secretary:
67
Particulars of the Purchaser's Subsidiaries (cont'd)
Name of Company: ▇▇▇▇ ▇▇▇▇ Gas Limited
Registered number: 815429
Registered office: 9th Floor, ▇▇▇▇ ▇. Centre, ▇▇ ▇▇▇▇ ▇▇
▇▇▇▇, ▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇
Date and place of incorporation: 25-09-2002 Hong Kong
Issued share capital: HK$2.00 divided into 2 shares
Authorised share capital: HK$10,000 divided into 10,000 shares of
HK$1.00 each
Shareholders and shares held: ▇▇▇▇ ▇▇▇▇ Gas (B.V.I.) Limited
(formerly known as Growth Choice Limited)
1 share
▇▇▇▇ ▇▇▇▇ Gas Management Limited
1 share (held on trust for and on behalf
of ▇▇▇▇ ▇▇▇▇ Gas (B.V.I.) Limited)
Directors: ▇▇. ▇▇▇, ▇▇▇▇▇
▇▇. ▇▇▇▇ ▇▇▇▇ ▇▇▇▇
Secretary: ▇▇▇▇ ▇▇▇▇ Gas Management Limited
68
Particulars of the Purchaser's Subsidiaries (cont'd)
Name of Company: ▇▇▇▇ ▇▇▇▇ Gas (China) Limited
Registered number: 545923.
Registered office: P.O. Box 957, Offshore Incorporations
Centre, Road Town, Tortola, British
Virgin Islands
Date and place of incorporation: 16-05-2003 British Virgin Islands
Issued share capital: US$1.00 divided into 1 share
Authorised share capital: US$50,000 divided into 50,000 shares of
US$1.00 each
Registered and beneficial shareholders: ▇▇▇▇ ▇▇▇▇ Gas (B.V.I.) Limited
(formerly known as Growth Choice Limited)
No. of shares held: 1 share
Directors: ▇▇. ▇▇▇, ▇▇▇▇▇
▇▇. ▇▇▇▇ ▇▇▇▇ ▇▇▇▇
Secretary: ▇▇▇▇ ▇▇▇▇ Gas Management Limited
69
Particulars of the Purchaser's Subsidiaries (cont'd)
Name of Company:
Top Power Holdings Limited
Registered number: 465762
Registered office: ▇▇▇ ▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇
Cay I, ▇.▇. ▇▇▇ ▇▇▇, ▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Date and place of incorporation: 08-10-2001 British Virgin Islands
Issued share capital: US$100 divided into 100 shares
Authorised share capital: US$50,000 divided into 50,000 shares of
US$1.00 each
Registered and beneficial shareholders ▇▇▇▇ ▇▇▇▇ Gas (China.) Limited
and shares held: 73 shares
Realux Limited
27 shares
Directors: Realux Limited
▇▇. ▇▇▇, ▇▇▇▇▇
▇▇. ▇▇▇▇ ▇▇▇▇ ▇▇▇▇
Secretary: ▇▇▇▇ ▇▇▇▇ Gas Management Limited
70
Particulars of the Purchaser's Subsidiaries (cont'd)
Name of Company: Beijing Continental Gas Co. Ltd.
Registered number: N/A
Registered office: Technology Training Center, ▇▇ ▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇, PRC
Date and place of incorporation: 15-07-1997 People's Republic of China
Issued share capital: ▇▇▇ ▇▇ million
Authorised share capital: ▇▇▇ ▇▇ million
Registered and beneficial shareholders Top Power Holdings Limited
and shares held: 70%
Directors: ▇▇▇▇▇ ▇▇▇ Man
Ho Chak Man
▇▇. ▇▇▇, ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇ ▇▇▇▇
Secretary: N/A
71
Particulars of the Purchaser's Subsidiaries (cont'd)
Name of Company: Apex Landmark Limited
Registered number: 558122
Registered office: P.O. Box 957, Offshore Incorporations
Centre, Road Town, Tortola, British
Virgin Islands
Date and place of incorporation: 28-08-2003 British Virgin Islands
Issued share capital: US$1.00 divided into 1 share
Authorised share capital: US$50,000 divided into 50,000 shares of
US$1.00 each
Registered and beneficial shareholders: Companion Building Material (Holdings)
Limited
No. of shares held: 1 share
Directors: ▇▇. ▇▇▇, ▇▇▇▇▇
▇▇. ▇▇▇▇ ▇▇▇▇ ▇▇▇▇
Secretary: N/A
72
Particulars of the Purchaser's Subsidiaries (cont'd)
Name of Company: Companion-China Limited
(formerly known as Taico
Investments Limited) - 27/10/1992)
Registered number: 369349
Registered office: ▇▇▇▇▇▇ ▇▇▇▇-▇, ▇▇/▇., ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇
Date and place of incorporation: 16-07-1992 Hong Kong
Issued share capital: HK$137,839,000 divided into 137,839,000
shares of HK$1 each
Authorised share capital: HK$137,839,000 divided into 137,839,000
shares of HK$1 each
Registered Shareholders: Companion Building Material
(Holdings) Limited
(137,838,999 Shares)
Ng Kwun Wan (1 Share)
Beneficial Shareholder: Companion Building Material
(Holdings) Limited
137,839,000 Shares
Directors: ▇▇▇▇▇ ▇▇▇▇ Wa
Ng Kwun Wan
Secretary: ▇▇▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇
Auditors: Deloitte Touche Tohmatsu
Business Manufacturing, Building Material Supplies
73
Particulars of the Purchaser's Subsidiaries (cont'd)
Name of Company: Companion-China (Supplies) Limited
Registered number: 607499
Registered office: ▇▇▇▇▇▇ ▇▇▇▇-▇, ▇▇/▇., ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇
Date and place of incorporation: 12-05-1997 Hong Kong
Issued share capital: HK$10,000 divided into 5,000 shares of
HK$2 each
Authorised share capital: HK$10,000 divided into 5,000 shares of
HK$2 each
Registered Shareholders: Companion-China Limited (1 Share)
Ng Kwun Wan (1 Share)
Beneficial Shareholder: Companion-China Limited (2 Shares)
Directors: ▇▇▇▇▇ ▇▇▇▇ Wa
Ng Kwun Wan
Secretary: ▇▇▇▇▇ ▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇
74
Particulars of the Purchaser's Subsidiaries (cont'd)
Name of Company: King Unity Investments Limited
Registered number: 405845
Registered office: ▇▇▇▇▇▇ ▇▇▇▇-▇, ▇▇/▇., ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇
Date and place of incorporation: 02-03-1993 Hong Kong
Issued share capital: HK$20,000 divided into 20,000 shares of
HK$1 each
Authorised share capital: HK$20,000 divided into 20,000 shares of
HK$1 each
Registered Shareholders: Companion-China Limited
(5,999 Shares)
▇▇▇▇ ▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇
(2,600 Shares)
▇▇▇▇ ▇▇▇ Ku
(1,400 Shares)
Ng Kwun Wan
(1 Share)
Placemakers Limited
(10,000 Shares)
Shareholding beneficially held by Companion-China 16,000 Shares
Limited:
Directors: ▇▇▇▇▇ ▇▇▇▇ Wa
Ng Kwun Wan
▇▇▇▇ ▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇
Secretary: ▇▇▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇
75
Particulars of the Purchaser's Subsidiaries (cont'd)
Name of Company: Saint Galerie Tiles Limited
Registered number: 92453
Registered office: ▇▇▇▇▇▇ ▇▇▇▇-▇, ▇▇/▇., ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇
Date and place of incorporation: 23-01-1981 Hong Kong
Issued share capital: HK$13,750,000 divided into 13,750,000
shares
Authorised share capital: HK$80,000,000 divided into 80,000 shares
of HK$1,000 each
Registered Shareholders: Super Trend Limited
(13,749 Shares)
Ng Kwun Wan
(1 Share)
Beneficial Shareholders Super Trend Limited
(13,750 Shares)
Directors: ▇▇▇▇▇ ▇▇▇▇ Wa
Ng Kwun Wan
Secretary: ▇▇▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇
76
Particulars of the Purchaser's Subsidiaries (cont'd)
Name of Company: Saint Galerie Trading Company Limited
Registered number: 30983
Registered office: ▇▇▇▇▇▇ ▇▇▇▇-▇, ▇▇/▇., ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇
Date and place of incorporation: 15-12-1972 Hong Kong
Issued share capital: HK$4,000 divided into 400 shares
Authorised share capital: HK$500,000 divided into 500,000 shares of
HK$1 each
Registered Shareholders: Super Trend Limited
(399 Shares)
Saint Galerie Tiles Limited
(1 Share)
Beneficial Shareholders Super Trend Limited
(400 Shares)
Directors: ▇▇▇▇▇ ▇▇▇▇ Wa
Ng Kwun Wan
Secretary: ▇▇▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇
77
Particulars of the Purchaser's Subsidiaries (cont'd)
Name of Company: Super Trend Limited
Registered office: ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇
Date and place of incorporation: 13-05-1987 Republic of Liberia
Issued share capital: US$4 divided into 4 shares of US$1 each
Authorised share capital: US$500 divided into 500 shares of US$1
each
Shareholder: Companion-China Limited (4 shares)
Directors: ▇▇▇▇▇ ▇▇▇▇ Wa
▇▇ ▇▇▇▇ Wan
Secretary: Ng Kwun Wan
78
Particulars of the Purchaser's Subsidiaries (cont'd)
Name of Company: Asean Fortune Corporation
Registered number: 208190
Registered office: Offshore Incorporations Limited
P.O. Box 957, Offshore Incorporations
Centre, Road Town, Tortola, British
Virgin Islands
Date and place of incorporation: 03-12-1996 BVI
Issued share capital: US$60 divided into 60 shares of US$1 each
Authorised share capital: US$50,000 divided into 50,000 shares of
US$1 each of US$1 each
Shareholders: Eminent Development Limited
(30 Shares)
Companion-China Limited
(30 Shares)
Directors: ▇▇▇▇▇ ▇▇▇▇ Wa
Chow Yu ▇▇▇▇, ▇▇▇▇▇▇▇▇▇
Ki Man ▇▇▇▇, ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇ (alternate to ▇▇ ▇▇▇▇ Yu ▇▇▇▇
▇▇▇▇▇▇▇▇▇)
Ng Kwun Wan
79
Particulars of the Purchaser's Subsidiaries (cont'd)
Name of Company: Brightsilver Investments Limited
Registered number: 215795
Registered office: Offshore Incorporations Limited
P.O. Box 957, Offshore Incorporations
Centre, Road Town, Tortola, British
Virgin Islands
Date and place of incorporation: 23-01-1997 BVI
Issued share capital: US$2 divided into 2 shares of US$1 each
Authorised share capital: US$50,000 divided into 50,000 shares of
US$1 each of US$1 Each
Registered Shareholders: Companion-China Limited
(2 Shares)
Directors: ▇▇▇▇▇ ▇▇▇▇ Wa
Ng Kwun Wan
80
Particulars of the Purchaser's Subsidiaries (cont'd)
Name of Company: Wenzhou Xishan United Ceramics Co., Ltd
Registered number: 0063860
Approved Certificate by
Zhejiang Bureau of Foreign Trade & Economic Cooperation
Ref No: 199202316
Registered office: ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇, PRC
Date and place of incorporation: 30-11-1992 PRC
Registered capital: US$6,800,000
Total Investment: US$13,600,000
Shareholders: Wenzhou Xishan Wall Tile Factory
(US$1,800,000)
Companion-China Limited
(US$5,000,000)
Directors: ▇▇▇▇▇ ▇▇▇▇ ▇▇▇
▇▇▇▇ Hin Kit
Ng Tik Hong
Ng Sai ▇▇▇▇
▇▇ Kwun ▇▇▇
▇▇▇▇▇▇ ▇▇▇ ▇▇▇
▇▇▇ ▇▇▇ Ching
Ha ▇▇ ▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇ Fat
Chu Ding ▇▇▇
▇▇▇▇ ▇▇▇▇ ▇▇▇
81
Particulars of the Purchaser's Subsidiaries (cont'd)
Name of Company: Chongqing Golden City Ceramics Co Ltd
Registered number: 0080095
Approved Certificate by:
Chongqing Foreign Economic Relations and Trade Commission
Ref Number: 199202316
Registered office: ▇▇. ▇▇, ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇ Tuo, Jiu Long Po District,
Chongqing City, PRC
Date and place of incorporation: 03-08-1993 PRC
Registered Capital: US$5,500,000
Total Investment: US$11,000,000
Shareholders: Chongqing Sixth Cotton Mill Yakka Service Co.
(US$1,650,000)
King Unity Investment Limited
(US$3,850,000)
Directors: ▇▇▇▇▇ ▇▇▇▇ Wa
▇▇▇▇ ▇▇▇
Ng Kwun Wan
Ng Tik Hong
Chu Ding Sun
▇▇▇ ▇▇▇ ▇▇▇▇
▇▇▇▇ ▇▇▇
▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇
82
Particulars of the Purchaser's Subsidiaries (cont'd)
Name of Company: YiXing United Ceramics Co., Ltd
Registered number: 0086239
Approved Certificate by:
Department of Foreign Trade and Economic Cooperation, Jiangsu
Ref Number: 19939958
Registered office: Industrial Park for Environmental Science and Technology, YiXing, PRC
Date and place of incorporation: 06-03-1993 PRC
Registered Capital: US$11,360,000
Total Investment: US$27,160,000
Shareholders: Asean Fortune Corporation
(US$15,560,000)
YiXing Economic Development Zone Corporations
(US$800,000)
Directors: ▇▇▇▇▇ ▇▇▇▇ Wa
Chu Ding Sun
Ng Kwun Wan
Ng Tik Hong
Ki Man ▇▇▇▇, ▇▇▇▇▇▇
▇▇▇▇ Wing ▇▇▇
▇▇▇ ▇▇▇ ▇▇▇▇
▇▇▇▇ ▇▇▇▇ ▇▇▇▇
83
Particulars of the Purchaser's Subsidiaries (cont'd)
Name of Company: Companion-China Limited Manufacturer of Ceramics Tiles
Registered number: 19950059
Approved Certificate by:
Department of Foreign Trade and Economics Relations of Guangdong
Province Ref Number: 19950059
Registered office: Industrial Development Zone, Shuang Shui Town, Xinhui, Guangdong, PRC
Date and place of incorporation: 13-07-1998 PRC
Registered Capital: US$2,600,000
Total Investment: US$2,700,000
Shareholders: Companion-China Limited
(US$2,600,000)
Directors: ▇▇▇▇▇ ▇▇▇▇ Wa
Chu Ding Sun
Tai Kin Fai
84
Particulars of the Purchaser's Subsidiaries (cont'd)
Name of Company: Shanghai Companion Building Material Co., Ltd
Registered number: 19950059
Approved Certificate by:
Shanghai Minhang Foreign Economic Relations and Trade Commission
Ref Number: 1997501
Registered office: Li ▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, PRC
Date and place of incorporation: 27-12-1997 PRC
Registered Capital US$3,000,000
Total Investment US$5,000,000
Shareholders: Shanghai ▇▇▇ ▇▇ Group Co., Ltd.
Companion-China Limited
90%
Directors: ▇▇▇▇▇ ▇▇▇▇ Wa
Chu Ding Sun
Ng Dai Shan
85
Particulars of the Purchaser's Subsidiaries (cont'd)
Name of Company: Companion Building Material (BVI) Limited
Registered number: 274121
Registered office: Offshore Incorporations Limited
P.O. Box 957, Offshore Incorporations
Centre, Road Town, Tortola, British
Virgin Islands
Date and place of incorporation: 31-03-1998 BVI
Issued share capital: US$2 divided into 2 shares of US$1 each
Authorised share capital: US$50,000 divided into 50,000 shares of
US$1 each
Shareholder: The Purchaser
(2 Shares)
Directors: Ng Sai ▇▇▇▇
▇▇ Tik Hong
86
Particulars of the Purchaser's Subsidiaries (cont'd)
Name of Company: Companion Building Material (Holdings)
Limited
Registered number: 33493
Registered office: ▇▇▇▇▇ ▇▇▇▇, ▇▇/▇., ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇
▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇
Date and place of incorporation: 18-05-1973 Hong Kong
Issued share capital: HK$490,385,924 divided into 2,451,929,620
shares of HK$0.20 each
Authorised share capital: HK$600,000,000 divided into 3,000,000,000
shares of HK$0.20 each
Registered Shareholders: Companion Building Material
(BVI) Limited
(2,451,929,619 shares)
Ng Kwun Wan (1 Share)
Beneficial Shareholder: Companion Building Material (BVI) Limited
(2,451,929,620 Shares)
Directors: ▇▇▇▇▇ ▇▇▇▇ Wa
Ng Kwun Wan
Ng Sai ▇▇▇▇
▇▇ Tik Hong
Secretary: Wah ▇▇▇ ▇▇▇▇
87
Particulars of the Purchaser's Subsidiaries (cont'd)
Name of Company: Companion - First Top Limited
Registered number: 492285
Registered office: ▇▇▇▇▇ ▇▇▇▇, ▇▇/▇., ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇
▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇
Date and place of incorporation: 27-09-1994 Hong Kong
Issued share capital: HK$1,000,000 divided into 1,000,000
shares of HK$1 each
Authorised share capital: HK$1,000,000 divided into 1,000,000
shares of HK$1 each
Shareholders: Companion Building Material
(Holdings) Limited
(750,000 Shares)
Danta Enterprises (International)
Corporation
(250,000 Shares)
Directors: Ng Tik Hong
Ng Sai ▇▇▇▇
▇▇▇▇ ▇▇▇ ▇▇▇
Secretary: Wah ▇▇▇ ▇▇▇▇
88
Particulars of the Purchaser's Subsidiaries (cont'd)
Name of Company: Companion Finance Limited
Registered number: 138959
Registered office: ▇.▇ ▇▇▇ ▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇
▇▇▇▇, ▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Date and place of incorporation: 05-01-1995 BVI
Issued share capital: US$100 divided into 100 shares of US$1
each
Authorised share capital: US$50,000 divided into 50,000 shares of
US$1 each
Registered and Beneficial Shareholder: Companion Building Material
(Holdings) Limited
(100 shares)
Directors: Siu York ▇▇▇▇
▇▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇ ▇▇▇▇ ▇▇▇
▇▇ Tik Hong
Ng Sai ▇▇▇▇
▇▇ ▇▇▇▇ ▇▇▇
Secretary: ▇▇▇▇▇ ▇▇▇▇ Kui
89
Particulars of the Purchaser's Subsidiaries (cont'd)
Name of Company: Companion Transport Limited
Registered number: 488079
Registered office: ▇▇▇▇▇ ▇▇▇▇, ▇▇/▇., ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇
▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇
Date and place of incorporation: 09-08-1994 Hong Kong
Issued share capital: HK$1,500,000 divided into 1,500,000
shares of HK$1 each
Authorised share capital: HK$1,500,000 divided into 1,500,000
shares of HK$1 each
Registered Shareholders: Companion Building Material
(Holdings) Limited
(1,499,999 shares)
Ng Kwun Wan (1 share)
Beneficial Shareholder: Companion Building Material
(Holdings) Limited
(1,500,000 shares)
Directors: Ng Sai ▇▇▇▇
▇▇ ▇▇▇▇ ▇▇▇
Secretary: Wah ▇▇▇ ▇▇▇▇
90
Particulars of the Purchaser's Subsidiaries (cont'd)
Name of Company: Crown Empire Limited
Registered number: 613748
Registered office: ▇▇▇▇▇ ▇▇▇▇, ▇▇/▇., ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇
▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇
Date and place of incorporation: 20-06-1997 Hong Kong
Issued share capital: HK$2 divided into 2 shares of HK$1 each
Authorised share capital: HK$10,000 divided into 10,000 shares of
HK$1 each
Registered Shareholders: Companion Building Material
(Holdings) Limited (1 share)
Ng Kwun Wan (1 share)
Beneficial Shareholder: Companion Building Material
(Holdings) Limited (2 shares)
Directors: Ng Tik Hong
Ng Sai Hung
Secretary: Wah ▇▇▇ ▇▇▇▇
91
Particulars of the Purchaser's Subsidiaries (cont'd)
Name of Company: Crown Rise Investments Limited
Registered number: 661824
Registered office: ▇▇▇▇▇ ▇▇▇▇, ▇▇/▇., ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇
▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇
Date and place of incorporation: 07-12-1998 Hong Kong
Issued share capital: HK$2 divided into 2 shares of HK$1 each
Authorised share capital: HK$10,000 divided into 10,000 shares of
HK$1 each
Registered Shareholders: Companion Building Material
(Holdings) Limited (1 share)
Ng Kwun Wan (1 share)
Beneficial Shareholder: Companion Building Material
(Holdings) Limited (2 shares)
Directors: Ng Tik Hong
Ng Kwun Wan
Ng Sai Hung
Secretary: Wah ▇▇▇ ▇▇▇▇
92
Particulars of the Purchaser's Subsidiaries (cont'd)
Name of Company: Ellca Company Limited
Registered number: 109767
Registered office: ▇▇▇▇▇ ▇▇▇▇, ▇▇/▇., ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇
▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇
Date and place of incorporation: 12-03-1982 Hong Kong
Issued share capital: HK$10,000 divided into 10,000 shares of
HK$1 each
Authorised share capital: HK$1,000,000 divided into 1,000,000
shares of HK$1 each
Registered Shareholders: Companion Building Material
(Holdings) Limited (9,999 shares)
Ng Kwun Wan (1 share)
Beneficial Shareholder: Companion Building Material
(Holdings) Limited (10,000 shares)
Directors: Ng Sai ▇▇▇▇
▇▇ ▇▇▇▇ ▇▇▇
Secretary: Wah ▇▇▇ ▇▇▇▇
93
Particulars of the Purchaser's Subsidiaries (cont'd)
Name of Company: Four Strong Winds Limited
Registered number: 435936
Registered office: ▇▇▇▇▇ ▇▇▇▇, ▇▇/▇., ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇
▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇
Date and place of incorporation: 15-07-1993 Hong Kong
Issued share capital: HK$20 divided into 2 shares of HK$10 each
Authorised share capital: HK$1,000 divided into 100 shares of HK$10
each
Registered Shareholders: Companion Building Material
(Holdings) Limited (1 share)
Ng Kwun Wan (1 share)
Beneficial Shareholder: Companion Building Material
(Holdings) Limited (2 shares)
Directors: Ng Sai ▇▇▇▇
▇▇ ▇▇▇▇ ▇▇▇
Ng Tik Hong
Secretary: Wah ▇▇▇ ▇▇▇▇
94
Particulars of the Purchaser's Subsidiaries (cont'd)
Name of Company: New Oriental Management Limited
Registered number: 611272
Registered office: ▇▇▇▇▇ ▇▇▇▇, ▇▇/▇., ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇
▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇
Date and place of incorporation: 04-06-1997 Hong Kong
Issued share capital: HK$2 divided into 2 shares of HK$1 each
Authorised share capital: HK$10,000 divided into 10,000 shares of
HK$1 each
Registered Shareholders: Companion Building Material
(Holdings) Limited (1 share)
Ng Kwun Wan (1 share)
Beneficial Shareholder: Companion Building Material
(Holdings) Limited (2 shares)
Directors: Ng Sai ▇▇▇▇
▇▇ ▇▇▇▇ ▇▇▇
Secretary: Wah ▇▇▇ ▇▇▇▇
95
Particulars of the Purchaser's Subsidiaries (cont'd)
Name of Company: Placemakers Limited
Registered number: 133996
Registered office: ▇.▇ ▇▇▇ ▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇
▇▇▇▇, ▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Date and place of incorporation: 22-11-1994 BVI
Issued share capital: US$100 divided into 100 shares of US$1
each
Authorised share capital: US$50,000 divided into 50,000 shares of
US$1 each
Registered and Beneficial Shareholder: Companion Building Material
(Holdings) Limited (100 shares)
Directors: Ng Sai ▇▇▇▇
▇▇ Tik Hong
96
Particulars of the Purchaser's Subsidiaries (cont'd)
Name of Company: Sino Pearl Limited
Registered number: 662361
Registered office: ▇▇▇▇▇ ▇▇▇▇, ▇▇/▇., ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇
▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇
Date and place of incorporation: 11-12-1998 Hong Kong
Issued share capital: HK$2 divided into 2 shares of HK$1 each
Authorised share capital: HK$10,000 divided into 10,000 shares of
HK$1 each
Registered Shareholders: Companion Building Material
(Holdings) Limited (1 share)
Ng Kwun Wan (1 share)
Beneficial Shareholders: Companion Building Material
(Holding) Limited (2 shares)
Directors: Ng Tik Hong
Ng Kwun Wan
Ng Sai Hung
Secretary: Wah ▇▇▇ ▇▇▇▇
97
Particulars of the Purchaser's Subsidiaries (cont'd)
Name of Company: Union Faith Enterprises Limited
Registered number: 646709
Registered office: ▇▇▇▇▇ ▇▇▇▇, ▇▇/▇., ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇
▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇
Date and place of incorporation: 05-06-1998 Hong Kong
Issued share capital: HK$2 divided into 2 shares of HK$1 each
Authorised share capital: HK$10,000 divided into 10,000 shares of
HK$1 each
Registered Shareholders: Companion Building Material
(Holdings) Limited (1 share)
Ng Kwun Wan (1 share)
Beneficial Shareholder Companion Building Material
(Holdings) Limited (2 shares)
Directors: Ng Tik Hong
Ng Kwun Wan
Secretary: Wah ▇▇▇ ▇▇▇▇
98
Particulars of the Purchaser's Subsidiaries (cont'd)
Name of Company: ▇▇▇▇▇ Trading Company Limited
Registered number: 120007
Registered office: ▇▇▇▇▇ ▇▇▇▇, ▇▇/▇., ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇
▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇
Date and place of incorporation: 21-12-1982 Hong Kong
Issued share capital: HK$20 divided into 2 shares of HK$10 each
Authorised share capital: HK$10,000 divided into 1,000 shares of
HK$10 each
Registered Shareholders: Companion Building Material
(Holdings) Limited (1 share)
Ng Kwun Wan (1 share)
Beneficial Shareholder: Companion Building Material
(Holdings) Limited (2 shares)
Directors: Ng Tik Hong
Ng Kwun Wan
Ng Sai Hung
Secretary: Wah ▇▇▇ ▇▇▇▇
99
Particulars of the Purchaser's Subsidiaries (cont'd)
Name of Company: Companion (Malta) Limited
Registered number:
Date and place of incorporation: 25-04-1994 Malta
Issued share capital: US$6,000 divided into 6,000 shares of
US$1 each
Authorised share capital: US$6,000 divided into 6,000 shares of
US$1 each
Registered Shareholders:
Beneficial Shareholder: Companion Building Material
(Holdings) Limited
(6,000 shares)
Directors: Carniel Buttiging
▇▇▇▇ ▇. Psaile
▇▇▇▇ ▇. Attenrd
100
Schedule 3
The Properties
(Clause 1.1)
Part 1
Particulars of Properties owned by a Group Company
Name of Group Company owning the Property Address of Property
----------------------------------------- -------------------------------------------------------
1 Carmay Investment Limited (1) Units 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13,
14 and 15 on 18th Floor;
(2) Female Disable Lavatory; Male Lavatory; and
Disable Lavatory and Lift Lobby and Corridor on
18th Floor;
(3) Parking Space Nos.5, 6 and L5 on ▇▇▇ ▇▇▇▇▇ ▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇,▇▇.▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇
2 ACCA Investment Limited (1) Units 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13,
14 and 15 on 20th Floor;
(2) Roof;
(3) Female Disable Lavatory; Male Lavatory; and
Disable Lavatory and Lift Lobby and Corridor on
20th Floor;
(4) Parking Space Nos.7, 8, L3 and L4 on 1st Floor
of ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇.▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇
3 Beijing ▇▇▇▇ ▇▇▇ House and Land Estate Pacific Century Place, Beijing, 2A Worker's Stadium Road
Development Company Limited North, Chaoyang District, Beijing PRC
101
Part 2
Particulars of Properties leased by a Group Company
The following details to be completed in respect of each Property leased by a
Group Company:
Address of Property: PCCW Tower, Taikoo Place, ▇▇▇ ▇▇▇▇'▇ ▇▇▇▇,
▇▇▇▇▇▇ ▇▇▇, ▇▇▇▇ ▇▇▇▇ comprising the following
portions of the building known as Dorset House
(which comprises a 4 level basement car park, a
podium and 2 contiguous tower blocks above the
podium) (the "Building") erected on Portions of
Section S and the Remaining Portion of Quarry
Bay Marine Lot No. 1:
1 those portions of the Building now
known as PCCW Tower (formerly known at
the date of the Lease as Hongkong
Telecom Tower (Tower A)) as shown
coloured Yellow on Plans 2 to 51
annexed to the lease; and
2 those loading and unloading bays on
the Ground Floor of the Building as
shown coloured Yellow hatched Black on
Plan 6 annexed to the lease; and
3 those car parking spaces on Basement
Levels 1 to 4 of the Building as shown
coloured Yellow hatched Black on Plans
2 to 5 annexed to the lease.
Original parties to lease: Taikoo Place Holdings Limited (1) (as Owner)
▇▇▇▇▇▇▇ Limited (2) (as Lessee)
Swire Properties Limited (3) (as Owner's Guarantor)
PCCW-HKT Limited (4) (as Lessee's Guarantor)
Date of lease: 13 December 2000
Term: 999 years from and including 2 February 1882
(less the last 3 days thereof)
Rent: HK$1.00 per annum (if demanded)
Current lessee: Partner Link Investments Limited by virtue of an
assignment of the lease dated 6 September 2002
made between ▇▇▇▇▇▇▇ Limited (as assignor),
Partner Link Investments Limited (as assignee) and
PCCW-HKT Limited (as assignee's guarantor)
102
Schedule 4
The Purchaser's Properties
(Clause 1.1)
LEASED PROPERTIES
Company Location of Leased Properties Leased Term
Digital Delight Limited ▇▇▇▇▇ ▇▇-▇▇ & ▇▇-▇▇, ▇/▇, ▇▇▇▇ ▇ ▇▇▇▇▇▇, ▇▇ ▇▇▇▇ To Road 21/10/02 to 20/12/04
▇▇▇▇ ▇▇▇▇, Kowloon, Hong Kong
Beijing Continental Gas 2nd Floor, Technology and Training Centre 15/01/01 to 14/01/04
Co. Ltd. Zhongguancun Science Park, Chinese Academy of Agriculture Sciences,
▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ Limited ▇▇▇▇▇ ▇▇▇▇-▇, ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇, 16/06/03 to 15/06/06
Hong Kong
Chongqing Golden Unity No. 3456, Chongqing Ceramics Market, 25/06/03 to 25/06/04
Ceramics Co Ltd Da Du Kou District, Chongqing, PRC.
103
LIST OF LAND AND BUILDINGS
Held by Chongqing Golden Unity Ceramics (56% effectively held by Companion China Ltd)
-------------------------------------------------------------------------------------
Year Nature Location Area/description
12/1993 Land Use Right ▇▇. ▇▇, ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇, ▇▇▇ sq.m
Certificate ▇▇ ▇▇▇ Tou, Jiu Long Po
District
12/1993 Land Use Right ▇▇. ▇▇, ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇, ▇▇,▇▇▇ sq.m
Certificate ▇▇ ▇▇▇ Tou, Jiu Long Po
District
12/1993 Land Use Right ▇▇. ▇▇, ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇.▇
Certificate ▇▇ ▇▇▇ Tou, Jiu Long Po
District
10/1996 Building Ownership ▇▇. ▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇, ▇ machine room , 1 Gas
Certificate ▇▇ ▇▇▇ Tou Ma ▇▇▇▇ ▇▇▇▇, station
Banan District.
10/1996 Building Ownership ▇▇. ▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇, ▇ Ball Mill Machine
Certificate ▇▇ ▇▇▇ Tou Ma ▇▇▇▇ ▇▇▇▇,
Banan District
10/1996 Building Ownership ▇▇. ▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇, ▇ ▇▇▇▇▇▇▇▇▇ Units
Certificate ▇▇ ▇▇▇ Tou Ma ▇▇▇▇ ▇▇▇▇, (Southern)
Banan District
10/1996 Building Ownership Qun ▇▇ ▇▇▇▇▇▇▇, ▇▇▇ ▇▇, ▇ Residential Units in 1
Certificate Banan District, Chongqing floor
10/1996 Building Ownership Qun ▇▇ ▇▇▇▇▇▇▇, ▇▇▇ ▇▇, ▇ Residential Units in 1
Certificate Banan District, Chongqing Floor
Held by Wenzhou Xishan United Ceramics Co Ltd (73.5% effectively held by Companion China Ltd)
---------------------------------------------------------------------------------------------
Year Nature Location Area/Description Terms
8/1998 Land Use Right No. 229, Xishan East Road, 53,216.7 sq.m
Certificate Wenzhou City,
ZheJiang
1/2000 Building Ownership No. 229, Xishan East Road, 6 storeys of Commercial
Certificate Wenzhou City, Building
ZheJiang
1/2000 Building Ownership No. 229, Xishan East Road, 2 storeys of Factory
Certificate Wenzhou City, Building
Zhejiang
1/2000 Building Ownership No. 229, Xishan East Road, 2 storeys of Factory
Certificate Wenzhou City, Building
Zhejiang
Held by Xinhui (100% subsidiary of Companion China)
---------------------------------------------------
Year Nature Location Area/Description Terms
Factory, Godown and Industrial Development 11,000 m2 25 years
Office Zone, Shuang Shui Town,
Xinhui, Jiangmen City,
Guangdong Province
Workers' Flat (vacant) ▇▇▇▇ ▇▇▇, ▇▇▇ ▇▇▇▇▇, ▇ 86.86 m2
Agricultural and Science
New Village Road West,
Xinhui, Jiangmen City,
Guangdong Province
Held by Companion China Limited
-------------------------------
Year Nature Location Area/Description Terms
Worker's Flat (vacant) ▇▇▇▇ ▇▇▇ (▇▇▇ ▇▇▇▇▇) and 127.42 m2 (apartment)
▇▇▇▇ ▇▇ (▇▇▇ ▇▇▇▇▇), and 14.6 m2 (car park)
▇▇▇▇▇ ▇, ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇ ▇▇
▇▇▇▇, ▇▇▇▇▇▇▇▇
104
Schedule 5
Completion Obligations
(Clause 6)
1 Seller's Obligations
1.1 General Obligations
On Completion, the Seller shall deliver or make available to the
Purchaser the following:
1.1.1 evidence of the due fulfilment of the Conditions Precedent
for which the Seller are responsible;
1.1.2 transfers of the Sale Shares duly executed by the registered
holders in favour of the Purchaser (or as it may direct)
accompanied by the relative share certificates (or an express
indemnity in a form satisfactory to the Purchaser in the case
of any certificate found to be missing);
1.1.3 the Loan Assignment duly executed by the Seller in favour of
the Purchaser (or as it may direct);
1.1.4 the S&P Agreement duly executed by the Exchange Company in
favour of the Purchaser (or as it may direct) and accompanied
by the related title documents;
1.1.5 application by the Seller (or such person as it may direct)
to subscribe for the Consideration Shares;
1.1.6 a certified true copy or certified extracts of the
resolutions of the board of directors of the Seller (and, if
applicable, resolutions of the shareholders of the Seller)
approving this Agreement and the transactions contemplated in
this Agreement; and
1.1.7 all such other documents as may reasonably be required to
enable the Purchaser and/or its nominees to be registered as
holder(s) of the Sale Shares and the Sale Assets.
2 The Purchaser's Obligations
2.1 Delivery Obligations
On Completion, the Purchaser shall deliver or make available to the
Seller:
2.1.1 evidence of the due fulfilment of the Conditions Precedent
for which the Purchaser is responsible;
2.1.2 the Consideration Shares duly issued and allotted (credited
as fully paid) to the Seller (or as it may direct), and
procure that the name(s) of the person or persons (including,
where appropriate, HKSCC Nominees Limited) so notified by the
Seller shall be entered in the register of the members of the
Purchaser accordingly (without payment of any registration
fee);
2.1.3 the Certificates in respect of the Convertible Notes duly
issued and allotted (credited as fully paid) to the Seller
(or as it may direct);
105
2.1.4 a certified true copy of the approval from the Stock Exchange
granting listing of and permission to deal in the
Consideration Shares and the Conversion Shares upon any
exercise of the Conversion Rights (if not already delivered
before Completion);
2.1.5 a certified true copy of the resolutions of the board of
directors of the Purchaser approving this Agreement and the
issue and allotment of the Consideration Shares to the Seller
(or as it may direct), the issue of the Convertible Notes to
the Seller (or as it may direct) and the issue of the
Conversion Shares upon any exercise of the Conversion Rights;
2.1.6 in accordance with the written directions of the Seller
(issued by the Seller and to the Purchaser at least one
Business Day before the expected date of Completion): (1)
share certificates for such number of the Consideration
Shares as so directed in the name of the Seller (or as it may
direct); and (2) share certificates for such number of the
Consideration Shares as so directed in the name of HKSCC
Nominees Limited to be delivered through the facilities of
HKSCC for immediate credit to such CCASS stock accounts
pursuant to paragraph 2.2.1 below;
2.1.7 a copy of the Purchaser's written instruction to its branch
share registrar in Hong Kong to update the register of
members to reflect the issue of the Consideration Shares, and
evidence that the Seller (or the person(s) nominated by it)
and/or HKSCC Nominees Limited (if so directed by the Seller
pursuant to paragraph 2.1.2 above) has been registered as a
shareholder of the Purchaser as to such number of the
Consideration Shares as directed by the Seller under
paragraph 2.1.2 above;
2.1.8 certified true copies of resolutions of the board of
directors of the Purchaser Group Companies appointing the
five nominees of the Seller to be directors of the Purchaser
(such appointment to take effect at the earliest time
permissible under the Takeovers Code);
2.1.9 the Loan Assignment duly executed by the Purchaser (or the
assignee as it may direct);
2.1.10 the S&P Agreement duly executed by the Purchaser in favour of
the Exchange Company (or as it may direct);
2.1.11 copies of the instruction letters, placing forms and other
documents issued by the Purchaser to its branch share
registrar in Hong Kong required for the deposit by the Seller
(or any others as the Seller may direct) of the Consideration
Shares or any part thereof in CCASS; and
2.1.12 unless otherwise retained by the Seller, resignations of each
director of the Purchaser with an acknowledgement that such
director has no claim against the Purchaser for wrongful
dismissal or otherwise (such resignation to take effect at
the earliest time permissible under the Takeovers Code or
such later time as the Seller may require).
2.2 Procurement Obligations
On Completion, the Purchaser shall:
2.2.1 (where the directions from the Seller relating to the issue
and delivery of the Consideration Shares are such that any
part of those shares are to be delivered through the
facilities of HKSCC) procure that the relevant Consideration
Shares shall be delivered through the facilities of HKSCC for
immediate credit to the
106
relevant CCASS stock accounts as shall be notified by the
Seller to the Purchaser for such purpose; and
2.2.2 promptly execute and deliver to the Seller (or as it may
direct) such other forms, instruments or documents, and do
such acts as the Seller may require from time to time to
facilitate the settlement of any placing of the Consideration
Shares which the Seller (or any other persons to whom the
Consideration Shares or any part thereof are to be allotted
and issued at the direction of the Seller) may have
undertaken.
107
Schedule 6
Warranties given by the Seller under Clause 8.1
1 Corporate Information
1.1 The Sale Shares and the Group Companies
1.1.1 The Seller will be the sole legal and beneficial owner of the
Sale Shares after the Restructuring and immediately before
Completion and has the right to exercise all voting and other
rights over the Sale Shares.
1.1.2 The Sale Shares comprise the whole of the issued and allotted
share capital of the Company, have been properly and validly
issued and allotted and are each fully paid or credited as
fully paid.
1.1.3 The shareholders specified in paragraph 2 of Schedule 1 are
the sole legal and beneficial owners of the shares in the
Subsidiaries and have the right to exercise all voting and
other rights over such shares.
1.1.4 The shares in the Subsidiaries comprise the relevant
percentage of the issued and allotted share capital of the
Subsidiaries as set out in the Charts, have been properly and
validly issued and allotted and each are fully paid or
credited as fully paid.
1.1.5 The particulars contained in Schedule 1 are true, accurate
and not misleading.
1.1.6 No person has the right (whether exercisable now or in the
future and whether contingent or not) to call for the
allotment, conversion, issue, registration, sale or transfer,
amortisation or repayment of any share or loan capital or any
other security giving rise to a right over, or an interest
in, the capital of any Group Company under any option,
agreement or other arrangement (including conversion rights
and rights of pre-emption).
1.1.7 There are no Encumbrances on the shares in any Group Company.
1.1.8 No Group Company:
(i) has any interest in, or has agreed to acquire, any
share capital or other security referred to in
paragraph 1.1.6 of any other company (wherever
incorporated) other than the Subsidiaries set out in
Schedule 1; and
(ii) has any branch, division, establishment or operations
outside the jurisdiction in which it is incorporated.
1.1.9 The Charts contain an accurate description of the corporate
structure of the Group before and immediately after
Restructuring.
1.2 Constitutional Documents, Corporate Registers and Minute Books
1.2.1 The constitutional documents of the Group Companies contain
full details of the rights and restrictions attached to the
share capital of the relevant Group Company and (to the best
of the Seller's knowledge, information and belief) there have
not been and are not any breaches by any Group Company which
would have a material adverse effect on the business of the
Group.
108
1.2.2 The statutory books, books of account and other records of
whatsoever kind of each Group Company are in all material
respects up-to-date, maintained in accordance with applicable
law on a proper and consistent basis, contain complete and
accurate records of all matters required to be dealt with in
such books and records and have attached to them copies of
all such resolutions and agreements as are required by law to
be delivered to the Hong Kong Registrar of Companies or
analogous authority in the relevant incorporation
jurisdiction of the Group Companies and all other resolutions
passed by the relevant Group Company or any class of members
or shareholders, other than resolutions relating to ordinary
business at any annual general meeting.
1.2.3 All books and records referred to in paragraph 1.2.2 and all
other documents (including documents of title and copies of
all subsisting agreements to which any Group Company is a
party) which are the property of each Group Company or ought
to be in its possession are in the possession (or under the
control) of the relevant Group Company.
1.2.4 All accounts, documents and returns required by law to be
delivered or made to the Hong Kong Registrar of Companies or
analogous authority in relevant incorporation jurisdiction of
the Group Companies have been duly and correctly delivered or
made on a timely basis.
1.2.5 The register of members of the Company is maintained in the
British Virgin Islands and transfer of the Sale Shares are
only required to be registered in the British Virgin Islands
and not elsewhere.
2 Accounts
The Accounts and the Management Accounts:
(a) have been prepared in accordance with applicable law and in
accordance with the accounting principles, standards and
practices generally accepted in Hong Kong, and have been
prepared in accordance with accounting policies used in
preparing the published accounts of the Seller applied on a
consistent basis; and
(b) having regard to the purpose for which they were drawn up
(and except for any audit adjustments in the Accounts and the
Management Accounts arising out of the differences between
the generally accepted accounting principles in the PRC and
those in Hong Kong) do not materially misstate the assets and
liabilities of the Group as at the Accounts Date or the
Management Accounts Date (as the case may be) nor the profits
or losses of the Group for each period concerned.
3 Financial Obligations
3.1 Financial Facilities
To the best of the Seller's knowledge, information and belief, there
are no circumstances whereby the continuation of any financial
facilities material to the businesses of the Group as a whole might be
prejudiced or affected as a result of a transaction effected by this
Agreement.
109
3.2 Guarantees
Other than in the ordinary and usual course of business, there is no
outstanding guarantee, indemnity, suretyship or security (whether or
not legally binding) given by, or for the benefit of, any Group
Company.
3.3 No Undisclosed Liabilities
There are no liabilities, whether actual or contingent, of the Group
Companies other than: (i) liabilities disclosed or provided for in the
Management Accounts; (ii) liabilities incurred in the ordinary course
of business since the Management Accounts Date, none of which is
material to the business of the Group as a whole; or (iii) liabilities
disclosed elsewhere in this Agreement.
3.4 No Liabilities
Save as fully and specifically disclosed in the Seller's Disclosure
Letter, the Company has no liabilities at all (whether actual or
contingent).
4 Property
4.1 The Property
The Properties comprise all of the premises and land owned by the
Group Companies or in which the Group Companies have any right or
interest in the nature of ownership.
4.2 Title
In relation to each Property referred to in Part 1 of Schedule 3, to
the best of the Seller's knowledge, information and belief, the Group
Company named in Part 1 of Schedule 3 as owner of the Property has
good title to the Property and is beneficially entitled to the whole
of the proceeds of sale of the Property.
4.3 Properties Leased to or by a Group Company
In relation to each tenancy, lease, sub-lease or licence entered into
by the Group Companies (whether as landlord, licensor, tenant or
licensee), so far as the Seller is aware, there is no material
subsisting breach nor any material non-observance of any covenants,
condition or agreement contained therein on the part of either the
relevant landlord, licensor, tenant or licensee.
4.4 The Developer
The Developer has in all material respects complied with its
obligations under the Project Agreement and all other agreements
entered into by it in connection with the Project Agreement. There has
not been any material misrepresentation to any purchaser of any part
of the property which has been and is being developed by the
Developer.
5 Assets
5.1 Ownership of Assets
All assets which are reasonably necessary for the operations of the
Group, other than the Properties, the Intellectual Property and any
assets disposed of or realised in the ordinary course of business are
legally and beneficially owned by the Group Companies and are
110
free from Encumbrances (other than lien arising by operation of law
in the ordinary course of business).
5.2 Debts
None of the debts receivable or due to any Group Company of an amount
more than HK$5,000,000 and which are included in the Management
Accounts or which have subsequently arisen has been outstanding for
more than six months from its due date for payment or has been
released on terms that the debtor has paid less than the full value of
his debt.
5.3 Sufficiency of Assets
To the best of the Seller's knowledge, information and belief, the
property, rights and assets owned or leased by the Group Companies
comprise all the property, rights and assets necessary for the
carrying on of the business of each Group Company substantially in the
manner in, and to the extent to, which it is presently conducted.
5.4 Sale Assets
5.4.1 The Seller will be the legal and beneficial owner of the
Loans and has the power and authority to enter into the Loan
Assignment at Completion. The total outstanding principal
amount of the Loans as at Completion will not be less than
the amount stated in the attached form of the Loan
Assignment. Save for the Loans and the indebtedness owing by
the Developer referred to in Clause 7.1.1(i), immediately
after Completion, the Group does not have any other
indebtedness due to the Seller's Group (excluding the
Purchaser Group and the Group) save for those which arise in
the ordinary course of business.
5.4.2 The Queen's Road Exchange is owned by a wholly-owned
subsidiary of the Seller (free from Encumbrances) and that
subsidiary has good title to that property and the power and
authority to enter into the S&P Agreement at Completion.
5.4.3 Once the relevant Development Right has been obtained, the
Relevant Company (as defined in Clause 7.2) will have the
right to enter into a JV for the purpose of Clause 7.2.
6 Intellectual Property and Information Technology
6.1 Infringement
So far as the Seller is aware, no claims of infringement of any third
party Intellectual Property rights or interests of material importance
have been made against the Seller by any third party.
6.2 Information Technology
In the 12 months prior to the date of this Agreement, there have been
no failure or breakdown of any computer systems, communication
systems, software and hardware owned or used by the Group which have
caused material disruption to the business of the Group.
111
7 Contracts
7.1 Contracts
No Group Company is a party to or subject to any contract,
transaction, arrangement, understanding or obligation which is
material to the business of the Group as a whole which is outstanding
and which:
7.1.1 is not in the ordinary course of business;
7.1.2 is not wholly on an arm's length basis;
7.1.3 restricts its freedom to carry on its business in any part of
the world in such manner as it thinks fit so as to have a
material adverse effect on the Group.
7.2 Compliance with Agreements
To the best of the Seller's knowledge, information and belief:
7.2.1 all the material contracts and all leases, tenancies,
licences, concessions and agreements of a material nature to
which any of the Group Companies is a party are valid,
binding and enforceable obligations of the parties thereto
and the terms thereof have been complied with in all material
respects by the relevant Group Company;
7.2.2 no notice of termination or of intention to terminate has
been received in respect of any of them.
7.3 Effect of Sale of the Sale Shares and the Sale Assets
To the best of the knowledge, information and belief of the Seller
neither entering into, nor compliance with, nor completion of this
Agreement will, or is likely to result in a material breach of, or
give any third party a right to terminate or vary, or result in any
Encumbrance under, any contract or arrangement to which any Group
Company is a party which is material to the business of the Group as a
whole.
8 Employees
All employees engaged in the operation of the business of the Group
are employed by the relevant Group Companies.
9 Licences and Consents
9.1 All licences, consents, authorisations, orders, warrants,
confirmations, permissions, certificates, approvals, registrations and
authorities material to the business of the Group and necessary for
the carrying on of the business of the Group ("Licences") have been
obtained, are in full force and effect and have been and are being
complied with in all material respects.
9.2 To the best of the Seller's knowledge, information and belief, there
is no reason why any Licence should be suspended, modified or revoked.
112
10 Litigation
10.1 Current Proceedings
No Group Company is involved whether as claimant or defendant or other
party in any claim, legal action, proceeding, suit, litigation,
prosecution, investigation, enquiry, mediation or arbitration (other
than as claimant in the collection of debts arising in the ordinary
and usual course of its business) which is material to the business of
the Group as a whole.
10.2 Pending or Threatened Proceedings
To the best of the Seller's knowledge, information and belief, no such
claim, legal action, proceeding, suit, litigation, prosecution,
investigation, enquiry, mediation or arbitration of material
importance is pending or threatened by or against any Group Company.
11 Insurance
11.1 All assets material to the business of the Group as a whole which are
capable of being insured have at all material times been and are
insured in amounts reasonably regarded as adequate against fire and
other risks normally insured against by companies carrying on similar
businesses or owning assets of a similar nature.
11.2 Each Group Company has at all material times been and is adequately
covered against accident, physical loss or damage, third party
liability and other risks normally covered by insurance by such
companies.
12 Tax
12.1 All returns, computations, notices and information which are or have
been required to be made or given by each Group Company for any
Taxation purpose: (i) have been made or given within the requisite
periods and on a proper basis and are up-to-date and correct; and (ii)
none of them is the subject of any dispute with the Inland Revenue
Department or other Taxation authorities.
12.2 Each Group Company is in possession of sufficient information or has
reasonable access to such information to enable it to compute its
liability to Taxation insofar as it depends on any transaction
occurring on or before Completion.
13 Important Business Issues Since the Management Accounts Date
Since the Management Accounts Date as regards each Group Company:
(a) there has been no material adverse change in the financial
position (other than a change affecting or likely to affect
all companies carrying on business in similar countries in
which the Group carries on business);
(b) the business of the Group has been carried on as a going
concern in the ordinary and usual course;
(c) no Group Company has declared, made or paid any dividend or
other distribution to its members;
(d) no Group Company has issued or allotted or agreed to issue or
allot any share capital or any other security giving rise to
a right over its capital;
113
(e) no Group Company has redeemed or purchased or agreed to
redeem or purchase any of its share capital.
14 General
14.1 The Seller and each of the Group Companies is validly existing and is
a company duly incorporated under the law of its jurisdiction of
incorporation.
14.2 The Seller has the legal right and full power and authority to enter
into and perform this Agreement and any other documents to be executed
by it pursuant to or in connection with this Agreement.
14.3 The documents referred to in paragraph 14.2 will, when executed,
constitute valid and binding obligations on the Seller, in accordance
with their respective terms.
14.4 The Seller has taken all corporate action required by it to authorise
it to enter into and to perform this Agreement, and any other
documents to be executed by it pursuant to or in connection with this
Agreement.
15 Insolvency etc.
15.1 No Group Company is insolvent or unable, whether as defined by Section
178 of the Companies Ordinance or otherwise, to pay its debts,
including its future and prospective debts.
15.2 No Group Company has proposed or intends to propose any arrangement of
any type with its creditors or any group of creditors whether by court
process or otherwise under which such creditors shall receive or be
paid less than the amounts contractually or otherwise due to them.
15.3 No Group Company nor any creditor of any Group Company has presented
any petition, application or other proceedings for any administration
order, creditors' voluntary arrangement or similar relief by which the
affairs, business or assets of the company concerned are managed by a
person appointed for the purpose by a Court, governmental agency or
similar body, or by any creditor or by the company itself nor has any
such order or relief been granted or appointment made.
114
Schedule 7
Warranties given by the Purchaser under Clause 8.4
1 Corporate Information
1.1 The Purchaser's Group Companies
1.1.1 The whole of the issued and allotted share capital of the
Purchaser comprise of 1,161,265,406 Existing Issuer's Shares,
have been properly and validly issued and allotted and are
each fully paid or credited as fully paid.
1.1.2 The shareholders specified in paragraph 2 of Schedule 2 are
the sole legal and beneficial owners of the shares in the
Purchaser's Subsidiaries and have the right to exercise all
voting and other rights over such shares.
1.1.3 The shares in the Purchaser's Subsidiaries comprise the whole
of the issued and allotted share capital of the Purchaser's
Subsidiaries, have been properly and validly issued and
allotted and each are fully paid or credited as fully paid.
1.1.4 The particulars contained in Schedule 2 are true, accurate
and not misleading.
1.1.5 No person has the right (whether exercisable now or in the
future and whether contingent or not) to call for the
allotment, conversion, issue, registration, sale or transfer,
amortisation or repayment of any share or loan capital or any
other security giving rise to a right over, or an interest
in, the capital of any Purchaser's Group Company under any
option, agreement or other arrangement (including conversion
rights and rights of pre-emption).
1.1.6 There are no Encumbrances on the shares in any Purchaser's
Subsidiaries.
1.1.7 No Purchaser's Group Company:
(i) has any interest in, or has agreed to acquire, any
share capital or other security referred to in
paragraph 1.1.5 of any other company (wherever
incorporated) other than the Purchaser's Subsidiaries
set out in Schedule 2; and
(ii) has any branch, division, establishment or operations
outside the jurisdiction in which it is incorporated.
1.1.8 The Purchaser's Chart contains an accurate description of the
corporate structure of the Purchaser's Group.
1.2 Constitutional Documents, Corporate Registers and Minute Books
1.2.1 The constitutional documents of the Purchaser's Group
Companies contain full details of the rights and restrictions
attached to the share capital of the relevant Purchaser's
Group Company and (to the best of the Purchaser's knowledge,
information and belief) there have not been and are not any
breaches by any Purchaser's Group Company which would have a
material adverse effect on the business of the Purchaser's
Group.
1.2.2 The statutory books, books of account and other records of
whatsoever kind of each Purchaser's Group Company are in all
material respects up-to-date,
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maintained in accordance with applicable law on a proper
and consistent basis, contain complete and accurate records
of all matters required to be dealt with in such books and
records and have attached to them copies of all such
resolutions and agreements as are required by law to be
delivered to the Hong Kong Registrar of Companies or
analogous authority in the relevant incorporation
jurisdiction of the Purchaser's Group Companies and all
other resolutions passed by the relevant Purchaser's Group
Company or any class of members or shareholders, other than
resolutions relating to ordinary business at any annual
general meeting.
1.2.3 All books and records referred to in paragraph 1.2.2 and all
other documents (including documents of title and copies of
all subsisting agreements to which any Purchaser's Group
Company is a party) which are the property of each
Purchaser's Group Company or ought to be in its possession
are in the possession (or under the control) of the relevant
Purchaser's Group Company.
1.2.4 All accounts, documents and returns required by law to be
delivered or made to the Hong Kong Registrar of Companies or
analogous authority in relevant incorporation jurisdiction of
the Purchaser's Group Companies have been duly and correctly
delivered or made on a timely basis.
2 Purchaser's Accounts
2.1 Latest Purchaser's Accounts
The Purchaser's Accounts have been prepared in accordance with
applicable law and in accordance with the accounting principles,
standards and practices generally accepted in Hong Kong and give a
true and fair view of the assets, liabilities and state of affairs of
the Purchaser's Group at the Purchaser's Accounts Date and of the
profits or losses of the Purchaser's Group for the period concerned.
2.2 Purchaser's Management Accounts
The Purchaser's Management Accounts have been prepared in accordance
with accounting policies used in preparing the Purchaser's Accounts
applied on a consistent basis and having regard to the purpose for
which they were drawn up do not materially misstate the assets and
liabilities of the Purchaser's Group as at the Relevant Purchaser's
Management Accounts Date nor the profits or losses of the Purchaser's
Group for the period concerned.
3 Financial Obligations
3.1 Financial Facilities
To the best of the Purchaser's knowledge, information and belief,
there are no circumstances whereby the continuation of any financial
facilities material to the businesses of the Purchaser's Group as a
whole might be prejudiced or affected as a result of a transaction
effected by this Agreement.
3.2 Guarantees
Other than in the ordinary and usual course of business, there is no
outstanding guarantee, indemnity, suretyship or security (whether or
not legally binding) given by, or for the benefit of, any Purchaser's
Group Company.
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3.3 No Undisclosed Liabilities
There are no liabilities, whether actual or contingent, of the
Purchaser's Group Companies other than: (i) liabilities disclosed or
provided for in the Purchaser's Management Accounts; (ii) liabilities
incurred in the ordinary course of business since the Purchaser's
Management Accounts Date, none of which is material to the business of
the Purchaser's Group as a whole; or (iii) liabilities disclosed
elsewhere in this Agreement.
3.4 No Liabilities
Save as fully and specifically disclosed in the Purchaser's Disclosure
Letter, the Purchaser has no liabilities at all (whether actual or
contingent).
4 Property
4.1 The Property
The Purchaser's Properties comprise all of the premises and land owned
by the Purchaser's Group Companies or in which the Purchaser's Group
Companies have any right or interest in the nature of ownership.
4.2 Title
In relation to each Purchaser's Property referred to in Schedule 4, to
the best of the Purchaser's knowledge, information and belief, the
Purchaser's Group Company named in Schedule 4 as owner of the
Purchaser's Property has good title to the Purchaser's Property and is
beneficially entitled to the whole of the proceeds of sale of the
Purchaser's Property.
4.3 Properties Leased to or by a Purchaser's Group Company
In relation to each tenancy, lease, sub-lease or licence entered into
by the Purchaser's Group Companies (whether as landlord, licensor,
tenant or licensee), so far as the Purchaser is aware, there is no
material subsisting breach nor any material non-observance of any
covenants, condition or agreement contained therein on the part of
either the relevant landlord, licensor, tenant or licensee.
5 Assets
5.1 Ownership of Assets
All assets which are reasonably necessary for the operations of the
Purchaser's Group, other than the Purchaser's Properties, the
Intellectual Property and any assets disposed of or realised in the
ordinary course of business are legally and beneficially owned by the
Purchaser's Group Companies and are free from Encumbrances (other than
lien arising by operation of law in the ordinary course of business).
5.2 Debts
None of the debts receivable or due to any Purchaser's Group Company
of an amount more than HK$1,000,000 and which are included in the
Purchaser's Management Accounts or which have subsequently arisen has
been outstanding for more than six months from its due date for
payment or has been released on terms that the debtor has paid less
than the full value of his debt.
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5.3 Sufficiency of Assets
To the best of the Purchaser's knowledge, information and belief, the
property, rights and assets owned or leased by the Purchaser's Group
Companies comprise all the property, rights and assets necessary for
the carrying on of the business of each Purchaser's Group Company
substantially in the manner in, and to the extent to, which it is
presently conducted.
6 Intellectual Property and Information Technology
6.1 Infringement
So far as the Purchaser is aware, no claims of infringement of any
third party Intellectual Property rights or interests of material
importance have been made against the Purchaser by any third party.
6.2 Information Technology
In the 12 months prior to the date of this Agreement, there have been
no failure or breakdown of any computer systems, communication
systems, software and hardware owned or used by the Purchaser's Group
which have caused material disruption to the business of the
Purchaser's Group.
7 Contracts
7.1 Contracts
No Purchaser's Group Company is a party to or subject to any contract,
transaction, arrangement, understanding or obligation which is
material to the business of the Purchaser's Group as a whole which is
outstanding and which:
7.1.1 is not in the ordinary course of business;
7.1.2 is not wholly on an arm's length basis;
7.1.3 restricts its freedom to carry on its business in any part of
the world in such manner as it thinks fit so as to have a
material adverse effect on the Purchaser's Group.
7.2 Compliance with Agreements
To the best of the Purchaser's knowledge, information and belief:
7.2.1 all the material contracts and all leases, tenancies,
licences, concessions and agreements of a material nature to
which any of the Purchaser's Group Companies is a party are
valid, binding and enforceable obligations of the parties
thereto and the terms thereof have been complied with in all
material respects by the relevant Purchaser's Group Company;
7.2.2 no notice of termination or of intention to terminate has
been received in respect of any of them.
7.3 Effect of Purchase of the Sale Shares and the Sale Assets
To the best of the knowledge, information and belief of the Purchaser
neither entering into, nor compliance with, nor completion of this
Agreement will, or is likely to result in a material breach of, or
give any third party a right to terminate or vary, or result in any
Encumbrance
118
under, any contract or arrangement to which any Purchaser's Group
Company is a party which is material to the business of the
Purchaser's Group as a whole.
8 Employees
All employees engaged in the operation of the business of the
Purchaser's Group are employed by the relevant Purchaser's Group
Companies.
9 Licences and Consents
9.1 All licences, consents, authorisations, orders, warrants,
confirmations, permissions, certificates, approvals, registrations and
authorities material to the business of the Purchaser's Group and
necessary for the carrying on of the business of the Purchaser's Group
("Licences") have been obtained, are in full force and effect and have
been and are being complied with in all material respects.
9.2 To the best of the Purchaser's knowledge, information and belief,
there is no reason why any Licence should be suspended, modified or
revoked.
10 Litigation
10.1 Current Proceedings
No Purchaser's Group Company is involved whether as claimant or
defendant or other party in any claim, legal action, proceeding, suit,
litigation, prosecution, investigation, enquiry, mediation or
arbitration (other than as claimant in the collection of debts arising
in the ordinary and usual course of its business) which is material to
the business of the Purchaser's Group as a whole.
10.2 Pending or Threatened Proceedings
To the best of the Purchaser's knowledge, information and belief, no
such claim, legal action, proceeding, suit, litigation, prosecution,
investigation, enquiry, mediation or arbitration of material
importance is pending or threatened by or against any Purchaser's
Group Company.
11 Insurance
11.1 All assets material to the business of the Purchaser's Group as a
whole which are capable of being insured have at all material times
been and are insured in amounts reasonably regarded as adequate
against fire and other risks normally insured against by companies
carrying on similar businesses or owning assets of a similar nature.
11.2 Each Purchaser's Group Company has at all material times been and is
adequately covered against accident, physical loss or damage, third
party liability and other risks normally covered by insurance by such
companies.
12 Tax
12.1 All returns, computations, notices and information which are or have
been required to be made or given by each Purchaser's Group Company
for any Taxation purpose: (i) have been made or given within the
requisite periods and on a proper basis and are up-to-date
119
and correct; and (ii) none of them is the subject of any dispute with
the Inland Revenue Department or other Taxation authorities.
12.2 Each Purchaser's Group Company is in possession of sufficient
information or has reasonable access to such information to enable it
to compute its liability to Taxation insofar as it depends on any
transaction occurring on or before Completion.
13 Important Business Issues Since the Purchaser's Management Accounts
Date
Since the Purchaser's Management Accounts Date as regards each
Purchaser's Group Company:
(a) there has been no material adverse change in the financial
position (other than a change affecting or likely to affect
all companies carrying on business in similar countries in
which the Purchaser's Group carries on business);
(b) the business of the Purchaser's Group has been carried on as
a going concern in the ordinary and usual course;
(c) no Purchaser's Group Company has declared, made or paid any
dividend or other distribution to its members;
(d) no Purchaser's Group Company has issued or allotted or agreed
to issue or allot any share capital or any other security
giving rise to a right over its capital;
(e) no Purchaser's Group Company has redeemed or purchased or
agreed to redeem or purchase any of its share capital.
14 General
14.1 The Purchaser and each of the Purchaser's Group Companies is validly
existing and is a company duly incorporated under the law of its
jurisdiction of incorporation.
14.2 The Purchaser has the legal right and full power and authority to
enter into and perform this Agreement and any other documents to be
executed by it pursuant to or in connection with this Agreement.
14.3 The documents referred to in paragraph 14.2 will, when executed,
constitute valid and binding obligations on the Purchaser, in
accordance with their respective terms.
14.4 The Purchaser has taken all corporate action required by it to
authorise it to enter into and to perform this Agreement, and any
other documents to be executed by it pursuant to or in connection with
this Agreement.
15 Insolvency etc.
15.1 No Purchaser's Group Company is insolvent or unable, whether as
defined by Section 178 of the Companies Ordinance or otherwise, to pay
its debts, including its future and prospective debts.
15.2 No Purchaser's Group Company has proposed or intends to propose any
arrangement of any type with its creditors or any group of creditors
whether by court process or otherwise under which such creditors shall
receive or be paid less than the amounts contractually or otherwise
due to them.
120
15.3 No Purchaser's Group Company nor any creditor of any Purchaser's Group
Company has presented any petition, application or other proceedings
for any administration order, creditors' voluntary arrangement or
similar relief by which the affairs, business or assets of the company
concerned are managed by a person appointed for the purpose by a
Court, governmental agency or similar body, or by any creditor or by
the company itself nor has any such order or relief been granted or
appointment made.
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Schedule 8
Form of the Certificate
▇▇▇▇ ▇▇▇▇ Gas Holdings Limited
(a company incorporated in Bermuda with limited liability)
Certificate No.: [o]
HK$[o] TRANCHE [A/B] CONVERTIBLE NOTE
Issued pursuant to the memorandum of association and bye-laws of ▇▇▇▇ ▇▇▇▇ Gas
Holdings Limited (the "Issuer"), a resolution of the board of directors of the
Issuer passed on [o] 2004 and a resolution of the shareholders of the Issuer
passed on [o] 2004.
THIS IS TO CERTIFY that [o] whose registered office is situate at ▇▇/▇, ▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇'▇ ▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇, ▇▇▇▇ ▇▇▇▇ is the registered
holder (the "Noteholder") of the above-mentioned Convertible Note (the "Note").
The Noteholder is entitled to require the Issuer to convert the whole or any
part(s) of the principal amount outstanding under this Note into ordinary
shares in the capital of the Issuer subject to and in accordance with the terms
and conditions attached hereto which shall form an integral part of this
Certificate (the "Conditions").
Subject to the foregoing, the Issuer, for value received, promises to redeem
the Note and pay the principal sum of HK$[o] to the Noteholder in accordance
with the Conditions.
The Issuer shall pay interest on the principal amount of the Note in accordance
with the Conditions.
GIVEN under the seal of the Issuer on [o] 2004.
-----------------------
Director
-----------------------
Secretary/Director
Notes:
The Note cannot be transferred to bearer on delivery and is only transferable
to the extent permitted by Condition 2. This Certificate must be delivered to
the company secretary of the Issuer for cancellation and reissue of an
appropriate certificate in the event of any such transfer.
(For endorsement in the event of partial conversion or redemption)
Date Amount Converted/Redeemed Amount Outstanding
(please specify)
122
TERMS AND CONDITIONS OF THE NOTE
The Note shall be held subject to and with the benefit of the terms and
conditions set out below and such terms and conditions shall be binding on ▇▇▇▇
▇▇▇▇ Gas Holdings Limited (the "Issuer") and the Noteholder. Expressions
defined in the agreement between PCCW Limited and the Issuer dated 5 March 2004
relating to, inter alia, the acquisition of the entire issued share capital of
Ipswich Holdings Limited and the issue of the Note (the "Agreement") shall bear
the same meaning in this Certificate. In addition, "Issue Date" means the date
of issue of the Note. The definitions and rules of construction set out in the
Agreement shall apply in the interpretation of the Conditions.
1 PERIOD
Subject as provided herein, the Issuer shall repay the outstanding
principal amount of the Note (together with all unpaid interest
accrued thereon up to and including the date of actual repayment)
subject to and in accordance with the Conditions on the Business Day
immediately preceding the [seventh/tenth] {for the Tranche A Note and
Tranche B Note respectively} anniversary of the Issue Date ("Maturity
Date").
2 STATUS AND TRANSFER
2.1 The obligations of the Issuer arising under the Note constitute
general unsubordinated, direct, unconditional, unsecured obligations
of the Issuer and shall at all times rank equally among themselves and
pari passu with all other present and future unsecured and
unsubordinated obligations of the Issuer except for obligations
accorded preference by mandatory provisions of applicable law. No
application will be made for a listing of the Note on any stock
exchange.
2.2 Subject to the conditions, approvals, requirements and any other
provisions of or under: (a) the Stock Exchange (and any other stock
exchange on which the Issuer's Shares may be listed at the relevant
time) or their rules and regulations; (b) the approval for listing in
respect of the Conversion Shares; and (c) all applicable laws and
regulations, the Note may (subject further to Condition 2.4) be
transferred to any person.
2.3 Any assignment or transfer of the Note shall be of the whole or any
part of the outstanding principal amount of the Note in whole
multiples of HK$1,000,000 and the Issuer shall use all reasonable
endeavours to facilitate any such assignment or transfer of the Note,
including making any necessary applications to the Stock Exchange for
approval. As a condition precedent to any such assignment or transfer
(other than an assignment or transfer of the entire Note), the
Noteholder and the Issuer shall execute such deed or other document as
may be necessary or desirable in the reasonable opinion of the Issuer:
(i) to provide for a new form of the Conditions by excluding
cross-references to the Agreement; (ii) to provide for meetings of
holders of Notes of the same series (being Notes derived from this
Note); and (iii) to amend the terms of this Note so that (where the
consent, agreement or approval of the Noteholder is required under
these Conditions) the approval by a simple majority of the Noteholders
notified to the Issuer shall suffice and the right of the Noteholder
under Condition 10 may not be exercisable unless a simple majority of
the Noteholders approving the exercise of such right shall have been
obtained. For this purpose, "simple majority" of the Noteholders shall
be a resolution passed by not less than holders of 50% of the
principal amount of the Notes then outstanding and attending the
meeting of Noteholders (or by way of a written confirmation signed by
the relevant majority of Noteholders).
123
2.4 In relation to any assignment or transfer of the Note permitted under
or otherwise pursuant to this Condition 2:
(a) The Note may only be transferred by execution of a form of
transfer ("Transfer Form") which shall be in a form
previously agreed between the Issuer and the Noteholder by
the transferor and the transferee (or their duly authorised
representatives). In this Condition, "transferor" shall,
where the context permits or requires, include joint
transferors or can be construed accordingly.
(b) The Certificate of the Note must be delivered to the Issuer
accompanied by: (i) a duly executed (and if required, duly
stamped) Transfer Form; and (ii) in the case of the execution
of the Transfer Form on behalf of a corporation by its
officers, the authority of that person or those persons to do
so and a copy of the constitutional document of such
corporation. The Issuer shall, within three (3) Business Days
of receipt of such documents from the Noteholder, cancel the
existing Certificate and issue a new certificate under the
seal of the Issuer, in favour of the transferee or assignee
in respect of the Note (or the transferred or assigned part
of the Note) as applicable and, if the Note is assigned or
transferred in part only, issue a new certificate under the
seal of the Issuer, in favour of the transferor in relation
to the part of the Note not assigned or transferred.
3 INTEREST
[The Note will bear no interest.]/
3.1 [Subject to Condition 3.2, the Note will bear interest from the Issue
Date at a rate of one per cent. (1%) per annum on the principal amount
of the Note outstanding from time to time. The interest will, subject
as provided herein, be payable by the Issuer once every six (6) months
in arrear on 30 June and 31 December of each year after the Issue Date
and before the Maturity Date (pro-rata for the actual number of days
in case the relevant period is less than six months).
3.2 If the Noteholder has converted any part or the whole of the principal
amount of the Note and upon delivery to the Issuer of the Certificate
for the Note, the Noteholder shall be entitled to interest in respect
of such part or the whole of the principal amount being converted for
the period from the immediately preceding interest payment date (or
the Issue Date, as the case may be) up to and including the Conversion
Date concerned.
3.3 Interest shall accrue from day to day and shall be calculated on the
basis of the actual number of days elapsed and a 365-day year,
including the first day of the period during which it accrues and
including the last.]
{for the Tranche A Note and Tranche B Note respectively}
4 PAYMENTS
4.1 Payment of the interest and principal (if any) in respect of the Note
shall be made for value on the due dates into such bank account in
Hong Kong as the Noteholder may notify the Issuer in writing from time
to time. All payments by the Issuer shall be made in Hong Kong dollars
in immediately available funds free and clear of any withholding or
deduction for any present or future taxes, imposts, levies, duties or
other charge payable by the Issuer. If the Issuer is required by law
to make any such deduction or withholding from any amount paid (except
where such deduction or withholding represents tax on the overall
income of
124
the Noteholder), the Issuer shall pay to the Noteholder such
additional amount as shall be necessary so that the Noteholder
receives an amount equal to the amount which it would have received
if such withholding or deduction had not been made.
4.2 All payments by the Issuer hereunder shall be made, not later than
11:00 a.m. (Hong Kong time) on the due date.
4.3 If the due date for payment of any amount in respect of the Note is
not a Business Day, the Noteholder will be entitled to payment on the
next following Business Day in the same manner together with interest
accrued in respect of any such delay.
4.4 The Issuer shall not be liable to make any payment in respect of the
outstanding principal amount of the Note unless and until the original
of the Certificate is presented to the Issuer at its address specified
in Condition 16. The Issuer shall retain the original of the
Certificate upon the redemption or conversion thereof in full.
4.5 Save as provided under the Conditions, the outstanding principal
amount of the Note or any part thereof shall not be repaid or prepaid
by the Issuer.
4.6 If the Issuer defaults in the payment of any sum due and payable under
this Note, the Issuer shall pay interest on such sum to the Noteholder
from the due date to the date of actual payment in full (both before
and after judgment) calculated at the rate of three per cent. (3%) per
annum.
5 REDEMPTION
Unless previously converted in accordance with these Conditions, upon
presentation on the Maturity Date of the original of the Certificate
to the Issuer at its address specified in Condition 16, the Issuer
shall redeem the Note at [its principal amount outstanding together
with accrued interest thereon up to and including the Maturity
Date]/[120% of its principal amount outstanding] {for the Tranche A
Note and Tranche B Note respectively} in Hong Kong dollars as provided
in Condition 4.
6 CONVERSION
The Noteholder may at any time on or after the Issue Date and on or
prior to the Maturity Date, in compliance with the provisions of
Condition 8, require the Issuer to convert the whole or any part of
the principal amount outstanding (in whole multiples of HK$100,000 or,
if less, the then outstanding principal amount of the Note) under this
Note into Shares at the Conversion Price. The New Shares shall be
allotted and issued in the name of the Noteholder or if it so directs
any other persons pursuant to such conversion and shall be delivered
to the Noteholder within three (3) Business Days after the date of
presentation of the relevant original Certificate. No fraction of a
Share will be issued on conversion but (except in cases where any such
cash payment would amount to less than HK$10) a cash payment will be
made to the Noteholder in respect of such fraction. Such Shares shall
rank pari passu in all respects with all other Shares in issue on the
date of the conversion notice and shall be entitled to all dividends,
bonuses and other distributions the record date of which falls on a
date on or after the date of the conversion notice.
7 ADJUSTMENTS
7.1 Subject as hereinafter provided, the Conversion Price shall from time
to time be adjusted in accordance with the following relevant
provisions and so that if the event giving rise to any
125
such adjustment shall be such as would be capable of falling within
more than one of sub-paragraphs (a) to (g) inclusive of this
Condition 7.1, it shall fall within the first of the applicable
paragraphs to the exclusion of the remaining paragraphs provided that
if such event would be capable of falling within sub-paragraph (h) as
well, sub-paragraph (h) shall apply:
(c) If and whenever the Issuer's Shares by reason of any
consolidation or sub-division become of a different nominal
amount, the Conversion Price in force immediately prior
thereto shall be adjusted by multiplying it by the following
fraction:
A
--------
B
where:
A = the revised nominal amount; and
B = the former nominal amount.
Each such adjustment shall be effective from the close of
business in Hong Kong on the day immediately preceding the
date on which the consolidation or sub-division becomes
effective.
(d) If and whenever the Issuer shall issue (other than in lieu of
a cash dividend) any Shares credited as fully paid by way of
capitalisation of profits or reserves (including any share
premium account or capital redemption reserve fund), the
Conversion Price in force immediately prior to such issue
shall be adjusted by multiplying it by the following
fraction:
C
--------
D
in each case, where:
C = the aggregate nominal amount of the issued Shares
immediately before such issue; and
D = the aggregate nominal amount of the issued Shares
immediately after such issue.
Each such adjustment shall be effective (if appropriate,
retroactively) from the commencement of the day next
following the record date for such issue.
(e) If and whenever the Issuer shall make any Capital
Distribution (as defined in Condition 7.2) to holders (in
their capacity as such) of Shares (whether on a reduction of
capital or otherwise) or shall grant to such holders rights
to acquire for cash assets of the Issuer or any of its
subsidiaries, the Conversion Price in force immediately prior
to such distribution or grant shall be adjusted by
multiplying it by the following fraction:
A - B
------------
A
where:
A = the market price (as defined in Condition 7.2) on
the date on which the Capital Distribution or, as the
case may be, the grant is publicly announced
126
or (failing any such announcement) the date immediately
preceding the date of the Capital Distribution or, as the
case may be, of the grant; and
B = the fair market value on the day of such
announcement or (as the case may require) the
immediately preceding day, as determined in good faith
by an approved merchant bank of the portion of the
Capital Distribution or of such rights which is
attributable to one Share,
Provided that:
(i) if in the opinion of the relevant approved merchant
bank, the use of the fair market value as aforesaid
produces a result which is significantly inequitable,
it may instead determine (and in such event the above
formula shall be construed as if B meant) the amount
of the said market price which should properly be
attributed to the value of the Capital Distribution or
rights; and
(ii) the provisions of this sub paragraph (c) shall not
apply in relation to the issue of Shares paid out of
profits or reserves and issued in lieu of a cash
dividend.
Each such adjustment shall be effective (if appropriate,
retroactively) from the commencement of the day next following
the record date for the Capital Distribution or grant.
(f) If and whenever the Issuer shall offer to holders of Shares
new Shares for subscription by way of rights, or shall grant
to holders of Shares any options or warrants to subscribe for
new Shares, at a price which is less than ninety five per
cent. (95%) of the market price (as defined in Condition 7.2)
at the date of the announcement of the terms of the offer or
grant, the Conversion Price shall be adjusted by multiplying
the Conversion Price in force immediately before the date of
the announcement of such offer or grant by the following
fraction:
Q x R
P + -------
S
-----------
P + Q
where:
P = the number of Shares in issue immediately before the
date of such announcement;
Q = the aggregate number of Shares so offered for
subscription;
R = the amount (if any) payable for the right, option or
warrant to subscribe for each new Share, plus the
subscription price payable for each new Share;
S = the market price of one Share on the trading day
immediately prior to such announcement.
Such adjustment shall become effective (if appropriate
retroactively) from the commencement of the day next following
the record date for the offer or grant.
(g) (i) If and whenever the Issuer shall issue wholly for cash
any securities which by their terms are convertible
into or exchangeable for or carry rights of
subscription for new Shares, and the total Effective
Consideration per
127
Share (as defined below) initially receivable for such
securities is less than ninety five per cent. (95%) of
the market price (as defined in Condition 7.2) at the
date of the announcement of the terms of issue of such
securities, the Conversion Price shall be adjusted by
multiplying the Conversion Price in force immediately
prior to the issue by a fraction of which the
numerator is the number of Shares in issue immediately
before the date of the issue plus the number of Shares
which the total Effective Consideration for the
securities issued would purchase at such market price
and the denominator is the number of Shares in issue
immediately before the date of the issue plus the
number of Shares to be issued upon conversion or
exchange of, or the exercise of the subscription
rights conferred by, such securities at the initial
conversion or exchange rate or subscription price.
Such adjustment shall become effective (if appropriate
retrospectively) from the close of business in Hong
Kong on the Business Day next preceding whichever is
the earlier of the date on which the issue is
announced and the date on which the issuer determines
the conversion or exchange rate or subscription price
(ii) If and whenever the rights of conversion or exchange
or subscription attached to any such securities as are
mentioned in section (i) of this sub-paragraph (e) are
modified so that the total Effective Consideration per
Share (as defined below) initially receivable for such
securities shall be less than ninety five per cent.
(95%) of the market price (as defined in Condition
7.2) at the date of announcement of the proposal to
modify such rights of conversion or exchange or
subscription, the Conversion Price shall be adjusted
by multiplying the Conversion Price in force
immediately prior to such modification by a fraction
of which the numerator is the number of Shares in
issue immediately before the date of such modification
plus the number of Shares which the total Effective
Consideration receivable for the securities issued at
the modified conversion or exchange price would
purchase at such market price and of which the
denominator is the number of Shares in issue
immediately before such date of modification plus the
number of Shares to be issued upon conversion or
exchange of or the exercise of the subscription rights
conferred by such securities at the modified
conversion or exchange rate or subscription price.
Such adjustment shall become effective (if
appropriate, retrospectively) as at the date upon
which such modification shall take effect. A right of
conversion or exchange or subscription shall not be
treated as modified for the foregoing purpose where it
is adjusted to take account of rights or
capitalisation issues and other events which have
given rise to adjustment of the Conversion Price under
this Condition 7.
For the purpose of this sub-paragraph (e), the "total
Effective Consideration" receivable for the securities issued
shall be deemed to be the consideration receivable by the
Issuer for any such securities plus the additional minimum
consideration (if any) to be received by the Issuer upon (and
assuming) the conversion or exchange thereof or the exercise
of such subscription rights, and the "total Effective
Consideration per Share" initially receivable for such
securities shall be such aggregate consideration divided by
the number of Shares to be issued upon (and assuming) such
conversion or exchange at the initial conversion
128
or exchange rate or the exercise of such subscription rights
at the initial subscription price, in each case without any
deduction for any commissions, discounts or expenses paid,
allowed or incurred in connection with the issue.
(h) If and whenever the Issuer shall issue wholly for cash any
Shares at a price per Share which is less than ninety five
per cent. (95%) of the market price (as defined in Condition
7.2) at the date of the announcement of the terms of such
issue, the Conversion Price shall be adjusted by multiplying
the Conversion Price in force immediately before the date of
such announcement by a fraction of which the numerator is the
number of Shares in issue immediately before the date of such
announcement plus the number of Shares which the aggregate
amount payable for the issue would purchase at such market
price and the denominator is the number of Shares in issue
immediately before the date of such announcement plus the
number of Shares so issued. Such adjustment shall become
effective on the date of the issue.
(i) If and whenever the Issuer shall issue Shares for the
acquisition of any asset at a total Effective Consideration
per Share (as defined in this sub-paragraph (g) below) which
is less than ninety five per cent. (95%) of the market price
(as defined in Condition 7.2) at the date of the announcement
of the terms of such issue, the Conversion Price shall be
adjusted in such manner as may be determined by an approved
merchant bank (as defined in Condition 7.2). Such adjustment
shall become effective on the date of issue. For the purpose
of this sub-paragraph (g) "total Effective Consideration"
shall be the aggregate consideration credited as being paid
for such Shares by the Issuer on acquisition of the relevant
asset without any deduction of any commissions, discounts or
expenses paid, allowed or incurred in connection with the
issue thereof, and the "total Effective Consideration per
Share" shall be the total Effective Consideration divided by
the number of Shares issued as aforesaid.
(j) If the Issuer or the Noteholder determines that an adjustment
should be made to the Conversion Price as a result of one or
more events or circumstances (whether or not referred to in
sub-paragraphs (a) to (g) above) (even if the relevant event
or circumstance is specifically excluded in the Conditions
from the operation of sub-paragraphs (a) to (g) above), or
that an adjustment should be made in a manner other than in
accordance with sub-paragraphs (a) to (g) above, or that an
adjustment should not be made (even if the relevant event or
circumstance is specifically provided for in sub-paragraphs
(a) to (g) above), or that the effective date for the
relevant adjustment should be a date other than that
mentioned in sub-paragraphs (a) to (g) above, the Issuer or
the Noteholder may, at its own expense, request an approved
merchant bank, acting as expert, to determine as soon as
practicable (i) what adjustment (if any) to the Conversion
Price is fair and reasonable to take account thereto and is
appropriate to give the result which the approved merchant
bank considers in good faith to reflect the intentions of the
provisions of this Condition 7; and (ii) the date on which
such adjustment should take effect; and upon such
determination such adjustment (if any) shall be made and
shall take effect in accordance with such determination,
provided that an adjustment shall only be made pursuant to
this sub-paragraph (i) if the approved merchant bank is so
requested to make such a determination.
7.2 For the purposes of this Condition 7:
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"announcement" shall include the release of an announcement to the
press or the delivery or transmission by telephone, telex or otherwise
of an announcement to the Stock Exchange and "date of announcement"
shall mean the date on which the announcement is first so released,
delivered or transmitted and "announced" shall have a corresponding
meaning;
"approved merchant bank" means a merchant bank of repute in Hong Kong
selected by the Issuer and agreed by the Noteholder for the purpose of
providing a specific opinion or calculation or determination hereunder
or, in the absence of such appointment, such merchant bank as may be
appointed by the President for the time being of The Hong Kong Society
of Accountants upon the request of either the Issuer or the
Noteholder;
"Capital Distribution" shall mean any cash dividend or a distribution
in specie and any dividend charged or provided for in the accounts for
any financial period shall (whenever paid and however described) be
deemed to be a Capital Distribution provided that any such dividend
shall not be so deemed if
(a) it is paid out of the aggregate of the net profits (less
losses) attributable to the holders of Shares for all
financial periods after that ended 31 December, 2003 as shown
in the audited consolidated profit and loss account of the
Issuer and its subsidiaries for each such financial period;
or
(b) to the extent that (a) above does not apply, the rate of that
dividend, together with all other dividends on the class of
capital in question charged or provided for in the accounts
for the financial period in question, does not exceed the
aggregate rate of dividend on such class of capital charged
or provided for in the accounts for the last preceding
financial period. In computing such rates, such adjustments
may be made as are in the opinion of an approved merchant
bank appropriate to the circumstances and shall be made if
the lengths of such periods differ materially;
"issue" shall include allot;
"market price" means the average closing price of Shares on the Stock
Exchange for each of the last twenty (20) Stock Exchange dealing days
on which dealings in the Issuer's Shares on the Stock Exchange took
place ending on the last such dealing day immediately preceding the
day on or as of which the market price is to be determined;
"reserves" includes unappropriated profits;
"rights" includes rights in whatsoever form issued; and
"Shares" includes, for the purpose of Shares comprised in any offer
pursuant to paragraphs (c), (d), (e) or (f) of Condition 7.1, any such
ordinary shares of the Issuer as, when fully paid, will be Shares.
7.3 The provisions of sub-paragraphs (b), (c), (d), (e) and (f) of
Condition 7.1 shall not apply to:
(a) an issue of fully paid Shares upon the exercise of any
conversion rights attached to securities convertible into
Shares or upon exercise of any rights (including any
conversion of part or the whole of the Note) to acquire
Shares (except a rights issue) provided that an adjustment
(if required) has been made under this Condition 7 in respect
of the issue of such securities or granting of such rights
(as the case may be);
130
(b) an issue of Shares or other securities of the Issuer or any
subsidiary of the Issuer wholly or partly convertible into,
or rights to acquire, Shares pursuant to any share option
scheme of the Issuer adopted in accordance with the Listing
Rules;
(c) an issue of fully paid Shares by way of capitalisation of all
or part of any subscription right reserve, or any similar
reserve which has been or may be established pursuant to the
terms of any securities wholly or partly convertible into or
rights to acquire Shares; or
(d) an issue of Shares pursuant to a scrip dividend scheme where
an amount not less than the nominal amount of the Issuer's
Shares so issued is capitalised and the market value of such
Shares is not more than 110 per cent. of the amount of
dividend which holders of the Issuer's Shares could elect to
or would otherwise receive in cash, for which purpose the
"market value" of a Share shall mean the average of the
closing prices for such Stock Exchange dealing days on which
dealings in the Issuer's Shares took place (being not less
than twenty (20) such days) as are selected by the directors
of the Issuer in connection with determining the basis of
allotment in respect of the relevant scrip dividend and which
fall within the period of one month ending on the last day on
which holders of Shares may elect to receive or (as the case
may be) not to receive the relevant dividend in cash.
7.4 Any adjustment to the Conversion Price shall be made to the nearest
one tenth of a cent so that any amount under one twentieth of a cent
shall be rounded down and any amount of one twentieth of a cent or
more shall be rounded up and in no event shall any adjustment
(otherwise than upon the consolidation of Shares into Shares of a
larger nominal amount) involve an increase in the Conversion Price. In
addition to any determination which may be made by the directors of
the Issuer, every adjustment to the Conversion Price shall be
certified by an approved merchant bank.
7.5 Notwithstanding anything contained herein, no adjustment shall be made
to the Conversion Price in any case in which the amount by which the
same would be reduced in accordance with the foregoing provisions of
this Condition would be less than one-tenth of a cent and any
adjustment that would otherwise be required then to be made shall be
carried forward.
7.6 If the Issuer or any subsidiary of the Issuer shall modify the rights
attached to any share or loan capital so as wholly or partly to
convert or make convertible such share or loan capital into, or attach
thereto any rights to acquire, Shares, the Issuer shall appoint an
approved merchant bank to consider whether any adjustment to the
Conversion Price is appropriate (and if such approved merchant bank
shall certify that any such adjustment is appropriate, the Conversion
Price shall be adjusted accordingly and the provisions of Conditions
7.4, 7.5, 7.7, 7.8 and 7.9 shall apply).
7.7 Whenever the Conversion Price is adjusted as herein provided, the
Issuer shall as soon as possible but not later than seven (7) Business
Days after the relevant adjustment has been determined give notice to
the Noteholder that the Conversion Price has been adjusted (setting
out brief particulars of the event giving rise to the adjustment, the
Conversion Price in effect prior to such adjustment, the adjusted
Conversion Price and the effective date thereof) and shall at all
times thereafter so long as the Note remains outstanding make
available for inspection at its principal place of business in Hong
Kong a signed copy of the said certificate of the approved merchant
bank.
131
7.8 Notwithstanding any other provision of this Condition 7, no adjustment
shall be made which would (but for this Condition 7.8) result in the
Conversion Price being reduced so that on conversion, Shares shall
fall to be issued at a discount to their nominal value, and in such
case an adjustment shall be made to the effect that the Conversion
Price will be reduced to the nominal value of a Share.
8 PROCEDURE FOR CONVERSION
8.1 The Conversion Rights may, subject as provided herein and in Condition
6.1, be exercised on any Business Day on or prior to the Maturity Date
by the Noteholder delivering to the Issuer in accordance with
Condition 16 a written notice stating the intention of the Noteholder
to convert and the address in Hong Kong for the delivery of the share
certificates of the Conversion Shares pursuant to Condition 8.2
together with the original of the Certificate. The conversion notice
shall be in the form annexed to these Conditions. The Issuer shall be
responsible for payment of all taxes and stamp, issue and registration
duties (if any), and Stock Exchange levies and charges (if any)
arising on any such conversion.
8.2 The Conversion Shares shall be allotted and issued by the Issuer,
credited as fully paid, to the Noteholder or as it may direct within
three (3) Business Days after, and with effect from, the date the
conversion notice is served by the Noteholder against delivery of the
original Certificate (which the Noteholder is obliged to deliver to
the Issuer following such conversion), and the Issuer shall issue
certificates for the Conversion Shares to which the Noteholder or such
person as it may direct shall become entitled in consequence of
exercising its Conversion Rights in board lots with one certificate
for any odd lot of Shares arising from conversion and shall deliver
the share certificates to the Noteholder in Hong Kong at its address
set out in Condition 16, (if appropriate) together with the original
Certificate with an endorsement on it by a director of the Issuer for
any balance of the Note not converted within the three (3) Business
Day period referred to above.
9 PROTECTION OF THE NOTEHOLDER
9.1 So long as the Note is outstanding, unless with the prior written
approval of the Noteholder:
(a) the Issuer shall not amend and/or repeal any provision of its
memorandum of association or bye-laws (save for any amendment
required by the Listing Rules);
(b) the Issuer shall not issue or authorise the issue of any
securities of any class having any right, preference or
priority superior to or on a parity with the Note;
(c) the Issuer shall not declare or pay any dividend on any
securities other than the Issuer's Shares;
(d) the Issuer shall not authorise or effect a merger, sale or
lease of all or substantially all the assets of the Issuer or
a voluntary liquidation, recapitalisation or reorganisation
of the Issuer;
(e) the Issuer shall not change the nature of its business;
(f) the Issuer shall keep available for issue, free from
pre-emptive rights, out of its authorised but unissued
capital, sufficient Shares to satisfy in full the Conversion
Rights at the Conversion Price from time to time and all
other rights for the time being outstanding of subscription
for and conversion into Shares;
132
(g) the Issuer shall not in any way modify the rights attached to
the Issuer's Shares (except as contemplated under Condition
7) as a class or attach any special restrictions thereto;
(h) the Issuer shall procure that at no time shall there be in
issue Shares of different nominal values;
(i) other than as a result of, or in circumstances where, an
offer made to holders of Shares to acquire all or any
proportion of the Issuer's Shares becoming unconditional, the
Issuer shall use all reasonable endeavours: (i) to maintain a
listing for all the issued Shares on the Stock Exchange; (ii)
to obtain and maintain a listing on the Stock Exchange for
all the Conversion Shares issued on the exercise of the
Conversion Rights attaching to the Note; and (iii) to obtain
a listing for all the Issuer's Shares issued on the exercise
of the Conversion Rights attaching to the Note on any other
stock exchange on which any of the Issuer's Shares are for
the time being listed and will forthwith give notice to the
holder of the Note in accordance with Condition 16 of the
listing or delisting of the Issuer's Shares by any such stock
exchange;
(j) the Issuer shall provide the Noteholder with (i) a copy of
its annual reports, annual financial statements, interim
reports and all other statements and circulars sent by the
Issuer to its shareholders within three (3) Business Days
after the Issuer sends the same to its shareholders, and (ii)
a copy of each press announcement and press release, teletext
announcement released or made by the Issuer in accordance
with the Listing Rules within three (3) Business Days after
date of release;
(k) the Issuer shall ensure that all the Conversion Shares will
be duly and validly issued fully paid and registered;
(l) the Issuer shall comply with and procure the compliance of
all conditions imposed by the Stock Exchange or by any other
competent authority (in Hong Kong or elsewhere) for approval
of the issue of the Note or for the listing of and permission
to deal in the Conversion Shares issued or to be issued on
the exercise of the Conversion Rights and to ensure the
continued compliance thereof (provided in each case that the
Noteholder complies with and satisfies all such conditions
applicable to it);
(m) the Issuer shall not issue or pay up any securities by way of
capitalisation of profits or reserves other than (i) by the
issue of fully paid Shares to holders of its Shares; or (ii)
as mentioned in Condition 7.3(c); or (iii) by the issue of
Shares in lieu of a cash dividend in the manner referred to
in Condition 7.3(d);
(n) the Issuer shall not create or permit to be in issue any
Equity Share Capital other than Shares, provided that nothing
in this Condition 9.1(o) shall prevent (i) any consolidation
or sub-division of the Issuer's Shares; or (ii) the issue of
Equity Share Capital which does not participate in dividends
in respect of a certain financial period but is pari passu in
all other respects with the Issuer's Shares;
(o) the Issuer shall procure that (i) no securities issued by the
Issuer shall be converted into Shares or exchanged for Shares
except in accordance with the terms of issue thereof, and
(ii) no securities issued by the Issuer without rights to
133
convert into Shares or to be exchanged for Shares shall
subsequently be granted such rights;
(p) the Issuer shall not make any issue, grant or distribution or
take any other action if the effect thereof would be that on
the exercise of the Conversion Rights, it would but for
Condition 7.8 be required to issue Shares at a discount to
their nominal value or to adjust the Conversion Price to a
level below the nominal value of the Issuer's Shares;
(q) if an offer is made to holders of Shares to acquire all or
any proportion of the Issuer's Shares, the Issuer shall
forthwith give notice of such offer to the Noteholder and
shall use all reasonable endeavours to procure that a similar
offer is extended in respect of the Note or in respect of any
Shares issued on conversion of the Note during the period of
the offer;
(r) the Issuer shall not make any distribution in specie to
holders of Shares unless the Noteholder is entitled to the
Specie Distribution Right in accordance with Condition 11;
(s) the Issuer shall not, subject as hereinafter provided, make
any reduction or redemption of share capital, share premium
account or capital redemption reserve involving the repayment
of money to shareholders of the Issuer (other than to
shareholders of the Issuer having the right on a winding up
to a return of capital in priority to the holders of Shares)
or reduce any uncalled liability in respect thereof unless,
in any such case, the same gives rise (or would, but for the
provisions of Conditions 7.5 or 7.8 give rise) to an
adjustment of the Conversion Price in accordance with
Condition 7; and
(t) the Issuer shall not enter into any deed, agreement,
assignment, instrument or documents whatsoever binding on it
which may result in any breach of any of the terms and
conditions of the Note.
10 EVENTS OF DEFAULT
If any of the following events ("Events of Default") occurs, the
Noteholder may give notice to the Issuer that the Note has, on the
giving of such notice, become immediately due and payable at its
principal amount then outstanding together with any accrued and unpaid
interest under Condition 3.1 calculated up to and including the date
of payment:
(a) other than as a result of, or in circumstances where, an
offer made to holders of Shares to acquire all or any
proportion of the Issuer's Shares becoming unconditional, the
listing of the Issuer's Shares (as a class) on the Stock
Exchange:
(i) ceases; or
(ii) is suspended for a continuous period of fifteen (15)
days on each of which the Stock Exchange is generally
open for trading due to the default of the Issuer or
any of its directors, officers, employees or agents;
or
(b) (i) the breach of any of the Purchaser's Warranties which
will have a material adverse effect on the Purchaser's
Group or on the Issuer's ability to perform any of its
obligations contemplated hereunder; or
(ii) the Issuer defaults in performance or observance or
compliance with any of its material obligations
contained in the terms and conditions of the Note,
134
and such event continues to subsist for a continuous
period of fifteen (15) Business Days after notice of
such event is sent from the Noteholder to the Issuer;
or
(c) the Issuer fails to pay the principal when due or the Issuer
fails to pay interest on the Note when due unless non payment
of such interest is due solely to administrative or technical
error and payment is made within three (3) Business Days of
the due date thereof; or
(d) (i) any amounts of principal repayment or interest payment
in relation to bank borrowings of the Issuer or any of
its subsidiaries are not paid when due, or as the case
may be, within any applicable grace period and the
relevant bank notifies the Issuer or the relevant
subsidiary that such non-payment constitutes an event
of default under the terms of relevant loan; or
(ii) the Issuer or any of its material subsidiaries fails
to pay when due or expressed to be due any amounts
payable or expressed to be payable by it under any
present or future guarantee for any moneys borrowed
from or raised through a financial institution and the
relevant financial institution notifies the Issuer or
the relevant subsidiary that such failure to pay
constitutes an event of default under the terms of the
guarantee or the loan in relation to which the
guarantee was given; or
(e) an encumbrancer takes possession or a receiver, manager or
other similar officer is appointed of the whole or any
material part of the undertaking, property, assets or
revenues of the Issuer or any of its subsidiaries; or
(f) the Issuer or any of its material subsidiaries becomes
insolvent or is unable to pay its debts as they mature or
applies for or consents to or suffers the appointment of any
administrator, liquidator or receiver of the Issuer or any of
its material subsidiaries or the whole or any material part
of the undertaking, property, assets or revenues of the
Issuer or any of its material subsidiaries or takes any
proceeding under any law for a readjustment or deferment of
its obligations or any part of them or makes or enters into a
general assignment or compromise with or for the benefit of
its creditors; or
(g) an order is made or an effective resolution passed for
winding-up of the Issuer or any of its material subsidiaries,
except in the case of winding up of subsidiaries in the
course of internal reorganisation; or
(h) a moratorium is agreed or declared in respect of any
indebtedness of the Issuer or any of its subsidiaries or any
governmental authority or agency condemns, seizes,
compulsorily purchases or expropriates all or any material
part of the assets of the Issuer or any of its subsidiaries;
or
(i) the Issuer or any of its material subsidiaries consolidates
or amalgamates with or merge into any other corporation
(other than a consolidation, amalgamation or merger in which
the Issuer or such material subsidiary is the continuing
corporation), or the Issuer or any of its material
subsidiaries sells or transfers all or substantially all of
its assets, or
(j) at any time any indebtedness, including any obligation
(whether present or future, actual or contingent, secured or
unsecured, as principal or surety or otherwise) for the
payment or repayment of money, of any member of the
Purchaser's Group
135
becomes due and payable prior to its stated maturity by
reason of default, or event of default (howsoever described)
by any member of the Purchaser's Group.
Provided that notwithstanding the foregoing, if the Issuer shall fail
to issue the Conversion Shares in accordance with the Conditions, the
Noteholder shall be entitled to bring an action against the Issuer for
either specific performance or damages. The Issuer will forthwith on
becoming aware of any such event as is mentioned in this Condition
give notice in writing thereof to the Noteholder. At any time after
any interest amount or the principal amount of the Note has become
payable and payment of which has not been made, the Noteholder may
without further notice institute such proceedings as it may think fit
to enforce payment of the monies due.
[In the event that the Noteholder gives notice to the Issuer that the
Note has become immediately due and payable on the occurrence of any
Event of Default, the Issuer shall immediately repay the principal
amount then outstanding together with any accrued and unpaid interest
under Condition 3.1 and a proportionate part of the 20% redemption
premium under Condition 5, calculated up to and including the date of
payment.] {for the Tranche B Note only}
11 DISTRIBUTION IN SPECIE
If the Issuer declares a distribution in specie other than an issue of
Shares in lieu of a cash dividend falling under Condition 7.3(d) (a
"Specie Distribution") to shareholders at any time during the period
in which the Noteholder can exercise its Conversion Rights, the
Noteholder will, unless an adjustment to the Conversion Price has been
made under Condition 7 in respect of the Specie Distribution in full,
be entitled to an amount (the "Specie Distribution Right") which shall
be determined as follows:
(a) the Issuer and the Noteholder will on the date of
announcement of the Specie Distribution instruct an approved
merchant bank (as defined in Condition 7.2) to value the
Specie Distribution which would have been payable to the
Noteholder on the Issuer's Shares falling to be issued if the
Noteholder had exercised its Conversion Rights immediately
prior to the record date for the Specie Distribution in
respect of the whole of the principal amount of the Note then
outstanding (the "Notional Specie Distribution"); and
(b) upon the determination of the approved merchant bank's
valuation of the Notional Specie Distribution (which
valuation shall be final and binding on both the Issuer and
the Noteholder) the Issuer will pay a cash amount equal to
the value of the Notional Specie Distribution to the
Noteholder.
12 VOTING
The Noteholder will not be entitled to receive notices of, attend or
vote at any meetings of the Issuer by reason only of it being the
Noteholder.
13 SELLING RESTRICTIONS
The Noteholder agrees not to offer the Note or Shares issued and
allotted to it upon any exercise of the Conversion Rights for sale or
subscription to the public pursuant to a prospectus within the meaning
of the Companies Ordinance (Chapter 32 of the Laws of Hong Kong)
except such as, and under circumstances that are, permitted under the
Companies Ordinance.
136
14 EXPERTS
In giving any certificate or making any adjustment hereunder, any
approved merchant bank appointed by the Issuer shall be deemed to be
acting as experts and not as arbitrators and, in the absence of
manifest error, their decision shall be conclusive and binding on the
Issuer and the Noteholder and all persons claiming through or under
them respectively.
15 REPLACEMENT NOTE
If the Certificate is lost or mutilated, the Noteholder shall notify
the Issuer as soon as practicable and a replacement Certificate shall
be issued if the Noteholder provides the Issuer with: (a) the
mutilated Certificate or a declaration by the Noteholder or its
officer that the Certificate had been lost or mutilated (as the case
may be) or other evidence that the Certificate had been lost or
mutilated; and (b) an appropriate indemnity in such form and content
as the Issuer may reasonably require. Any Certificate replaced in
accordance with this Condition shall forthwith be cancelled.
16 NOTICES
Each notice, demand or other communication to be given or made under
this Agreement shall be in writing and delivered or sent to the
relevant party at its respective address or facsimile number set out
below (or such other address or facsimile number as the addressee has
by five (5) days' prior written notice specified to the other party):
To the Issuer:
Facsimile: 2372 0611
Attention: Company Secretary
To the Noteholder:
Facsimile: 2962 5725
Attention: Company Secretary
Any notice, demand or other communication so addressed to the relevant
party shall be deemed to have been delivered: (a) if given or made by
letter and delivered by hand or courier when actually delivered to the
relevant address; (b) if given or sent by registered mail, on the date
which is two (2) Business Days (in the case of mail sent to a local
address) or five (5) Business Days (in the case of mail sent to an
overseas address) after the posting thereof; and (c) if given or made
by facsimile, when despatched with confirmation of successful
transmission (and if the deemed date of delivery is not a Business
Day, on the immediately following Business Day).
17 AMENDMENT
The terms and conditions of the Note may be varied, expanded or
amended by agreement in writing between the Issuer and the Noteholder.
18 GOVERNING LAW AND JURISDICTION
The Note and the Conditions are governed by and shall be construed in
accordance with the laws of Hong Kong and the Parties agree to submit
to the non-exclusive jurisdiction of the courts of Hong Kong.
137
CONVERSION NOTICE
Terms defined in the agreement between PCCW Limited and ▇▇▇▇ ▇▇▇▇ Gas Holdings
Limited (the "Issuer") dated 5 March 2004 relating to, inter alia, the
acquisition of the entire issued share capital of Ipswich Holdings Limited and
the issue of the Note and in the Certificate relating to the Note (as may be
amended) shall bear the same meaning in this Conversion Notice.
The undersigned hereby irrevocably elects to convert the following amount of
the Note into shares of the Issuer in accordance with the Conditions, as of the
date specified below, such shares to be issued in the name of the Shareholder
set out below.
Name of Noteholder:
Certificate Number(s):
Amount to be converted:
Conversion Date:
(being the date of this notice and on which the original Certificate is
presented to the Issuer)
Applicable Conversion Price:
Name in which shares are to be issued:
Address of Shareholder:
Signature of Noteholder:
Dated [o] 200[o]
138
Annexure A
Loan Assignment
139
Annexure B
S&P Agreement
140
Table of Contents
Contents Page
1 Interpretation.......................................................1
2 Agreement to Sell and Purchase.......................................7
3 Consideration........................................................7
4 Conditions...........................................................8
5 Pre-Completion......................................................12
6 Completion..........................................................14
7 Specific Undertakings...............................................15
8 Warranties..........................................................16
9 Limitation of Seller's Liability....................................18
10 Claims Against the Seller...........................................20
11 Limitation of Purchaser's Liability.................................21
12 Claims Against the Purchaser........................................23
13 Confidentiality.....................................................24
14 Other Provisions....................................................25
Schedule 1 The Group.........................................................31
Schedule 2 The Purchaser's Group.............................................56
Schedule 3 The Properties (Clause 1.1)......................................101
Schedule 4 The Purchaser's Properties (Clause 1.1)..........................103
Schedule 5 Completion Obligations (Clause 6)................................105
Schedule 6 Warranties given by the Seller under Clause 8.1..................108
Schedule 7 Warranties given by the Purchaser under Clause 8.4...............108
Schedule 8 Form of the Certificate..........................................122
Annexure A Loan Assignment..................................................139
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Annexure B S&P Agreement....................................................140
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