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EXHIBIT 1.3
CHINA MOBILE (HONG KONG) LIMITED
--% CONVERTIBLE NOTES DUE 2005
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UNDERWRITING AGREEMENT
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___________, 2000
CHINA INTERNATIONAL CAPITAL CORPORATION LIMITED
▇/▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ (▇▇▇▇ ▇▇▇▇) Limited
R4302, ▇▇/▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇;
▇▇▇▇▇▇▇ ▇▇▇▇▇ (ASIA) L.L.C.
68/F, ▇▇▇▇▇▇ Kong Center
▇ ▇▇▇▇▇'▇ ▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇; and
MERRILL, LYNCH, ▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇
INCORPORATED
North Tower
World Financial Center
New York, New York 10281-12098
Ladies and Gentlemen:
China Mobile (Hong Kong) Limited (the "Company"), a company incorporated
with limited liability under the laws of the Hong Kong Special Administrative
Region of the People's Republic of China ("Hong Kong"), proposes, subject to the
terms and conditions stated herein, to issue and sell to the Underwriters named
in Schedule I hereto (the "Underwriters") an aggregate of US$-- million
principal amount of the convertible notes, convertible into Ordinary Shares, par
value HK$0.10 per share ("Stock") of the Company specified above (the "Firm
Securities") and, at the election of the Underwriters, up to an aggregate of
US$-- million additional aggregate principal amount of such convertible notes
(the "Optional Securities") (the Firm Securities and the Optional Securities
which the Underwriters elect to purchase pursuant to Section 2 hereof are herein
collectively called the "Securities"), for sale within and outside the United
States (the "Global Offering").
The American Depositary Shares ("ADSs") representing shares of Stock that
may be issued from time to time upon conversion of the Securities will be issued
pursuant to a deposit agreement (the "Deposit Agreement"), dated as of
October 23, 1997, as amended and restated on July 5, 2000, among the Company,
The Bank of New York, as depositary (the "Depositary"), and owners and
beneficial owners from time to time of the American Depositary Receipts (the
"ADRs") issued by the Depositary and evidencing the ADSs. As of the date hereof,
each ADS represents the right to receive five shares of Stock deposited pursuant
to the Deposit Agreement.
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Three forms of prospectus are to be used in connection with the offering
and sale of the Securities contemplated by the foregoing, the U.S. Prospectus
(as defined below) relating to the offering and sale of the Securities within
the United States, one relating to the offering and sale of Securities outside
the United States and Asia (the "International Prospectus") and another relating
to the offering and sales of Securities in Asia (the "Asia Prospectus"). The
International Prospectus and the Asia Prospectus will be identical to the U.S.
Prospectus except for certain substitute pages. Except as otherwise indicated or
the context otherwise requires, references herein to any prospectus, whether in
preliminary or final form and whether as amended or supplemented, shall include
both the U.S. Prospectus and the other versions thereof, including the
International Prospectus and the Asia Prospectus, as appropriate. Concurrently
with the Global Offering, the Company plans to undertake a global offering and
sale of shares of Stock and ADSs (the "Share Offering").
All references in this Agreement to financial statements and schedules and
other information which is "contained," "included" or "stated" in the
Registration Statement (as defined below), any preliminary prospectus or the
Prospectus (as defined below) (or other references of like import) shall be
deemed to mean and include all such financial statements and schedules and other
information which are incorporated by reference therein pursuant to Item 12 of
Form F-3 under the United States Securities Act of 1933, as amended (the "Act"),
as of the date of filing or the date of effectiveness or on the date of the
Registration Statement, such preliminary prospectus or the Prospectus, as the
case may be; and all references in this Agreement to amendments or supplements
to the Registration Statement, any preliminary prospectus or the Prospectus
shall be deemed to mean and include the filing of any document under the United
States Securities and Exchange Act of 1934, as amended (the "Exchange Act"),
that is incorporated by reference in the Registration Statement, such
preliminary prospectus or the Prospectus, as the case may be.
Except where otherwise specified, the term "subsidiaries" shall be deemed
to refer to the Existing PRC Subsidiaries and the Target Companies, each as
defined in Section 1(j) herein, as well as the BVI Companies as defined in
Section 1(k) herein.
1. The Company represents and warrants to, and agrees with, each of the
Underwriters that:
(a) A registration statement on Form F-3 (File No. 333-47256) (the
"Initial Registration Statement") in respect of the Securities and the
shares of Stock and ADSs issuable upon conversion (as well as the shares of
Stock and ADSs offered and sold in the Share Offering) has been filed with
the United States Securities and Exchange Commission (the "Commission");
the Initial Registration Statement and any post-effective amendment
thereto, each in the form heretofore delivered to you, and, excluding
exhibits thereto but including all documents incorporated by reference in
the prospectus contained therein, to you for each of the other
Underwriters, have been declared effective by the Commission in such form;
other than a registration statement, if any, increasing the size of the
offering (a "Rule 462(b) Registration Statement"), filed pursuant to
Rule 462(b) under the Act, which became effective upon filing, no other
document with respect to the Initial Registration Statement [or documents
incorporated by reference therein] has heretofore been filed with the
Commission; and no stop order suspending the effectiveness of the Initial
Registration Statement, any post-effective amendment thereto or the Rule
462(b) Registration Statement, if any, has been issued and no proceeding
for that purpose has been initiated or, to the knowledge of the Company,
threatened by the Commission (any preliminary prospectus (the "Preliminary
U.S. Prospectus") included in the Initial Registration Statement or filed
with the Commission pursuant to Rule 424(a) of the rules and regulations of
the Commission under the Act, or the versions thereof prepared in
connection with the offering and sale of the Securities outside the United
States, are collectively hereinafter called a "Preliminary Prospectus"; the
various parts of the Initial Registration Statement and the Rule 462(b)
Registration Statement, if any, including all exhibits thereto and
including the information contained in the form of final prospectus filed
with the Commission pursuant to Rule 424(b) under the Act in accordance
with Section 5(a) hereof and deemed by virtue of Rule 430A under the Act to
be part of the Initial Registration Statement at the time it was declared
effective, each as amended at the time such part of the Initial
Registration Statement became effective or such part of the Rule 462(b)
Registration Statement, if any, at the time it became or hereafter becomes
effective, are hereinafter collectively called the "Registration
Statement"; and the final Prospectus, in the form first filed pursuant to
Rule 424(b) under the Act (the "U.S. Prospectus"), and the versions thereof
prepared in connection with the offering and sale of the Securities outside
of the U.S., each in the form first delivered to the Underwriters following
effectiveness of the Registration Statement, are hereafter collectively
called the "Prospectus");
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(b) No order preventing or suspending the use of any Preliminary
Prospectus has been issued by the Commission; each Preliminary U.S.
Prospectus, at the time of filing thereof, conformed in all material
respects to the requirements of the Act and the Trust Indenture Act of
1939, as amended (the "Trust Indenture Act") and the rules and regulations
of the Commission thereunder; and each Preliminary Prospectus as of its
date did not contain an untrue statement of a material fact or omit to
state a material fact required to be stated therein or necessary to make
the statements therein, in the light of the circumstances under which they
were made, not misleading; provided, however, that this representation and
warranty shall not apply to any statements or omissions made in reliance
upon and in conformity with information furnished in writing to the Company
by an Underwriter expressly for use therein;
(c) The Registration Statement conforms, and the Prospectus and any
further amendments or supplements to the Registration Statement or the
Prospectus will conform, in all material respects to the requirements of
the Act and the rules and regulations of the Commission thereunder and do
not and will not, as of the applicable effective date as to the
Registration Statement and any amendment thereto and as of the applicable
filing date as to the Prospectus and any amendment or supplement thereto,
contain an untrue statement of a material fact or omit to state a material
fact required to be stated therein or necessary to make the statements
therein not misleading; provided, however, that this representation and
warranty shall not apply to any statements or omissions made in reliance
upon and in conformity with information furnished in writing to the Company
by an Underwriter expressly for use therein;
(d) The documents incorporated or deemed to be incorporated by
reference in the Registration Statement and the Prospectus, when they were
or hereafter are filed with the Commission, conformed and will conform in
all material respects with the requirements of the Exchange Act and the
rules and regulations of the Commission thereunder and, when read together
with the other information in the Prospectus, at the time the Registration
Statement became effective, at the time the Prospectus was issued and at
such Time of Delivery (as defined below), did not and will not contain an
untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements therein
not misleading;
(e) A registration statement on Form F-6 (File No. 333-12688) in
respect of the ADSs has been filed with the Commission; such registration
statement (including exhibits) in the form heretofore delivered to you has
been declared effective by the Commission in such form; no other document
with respect to such registration statement has heretofore been filed with
the Commission; no stop order suspending the effectiveness of such
registration statement has been issued and no proceeding for that purpose
has been initiated or, to the knowledge of the Company, threatened by the
Commission (the various parts of such registration statement, including all
exhibits thereto, each as amended at the time such part of the registration
statement became effective, being hereinafter called the "ADS Registration
Statement"); and the ADS Registration Statement when it became effective
conformed, and any further amendments thereto will conform, in all material
respects to the requirements of the Act and the rules and regulations of
the Commission thereunder, and did not, as of the applicable effective
date, contain an untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the
statements therein not misleading;
(f) Neither the Company nor any of its subsidiaries has sustained
since the date of the latest audited financial statements included in the
Prospectus any material loss or interference with its business from fire,
explosion, flood or other calamity, whether or not covered by insurance, or
from any labor dispute or court or governmental action, order or decree,
otherwise than as set forth or contemplated in the Prospectus; and, since
the respective dates as of which information is given in the Registration
Statement and the Prospectus, there has not been any change in the capital
stock of the Company or any of its subsidiaries, or any change in
consolidated total short-term debt in excess of US$10 million or any change
in consolidated long-term bank and other loans, net of current portion, in
excess of US$10 million of the Company and its subsidiaries, or any
material adverse change, or any event involving a prospective material
adverse change, in or affecting the general affairs, management, financial
position, shareholders' equity or results of operations of the Company and
its subsidiaries, taken as a whole, otherwise than as set forth or
contemplated in the Prospectus;
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(g) The Company and its subsidiaries have valid title to, or valid
leasehold interests in, all of their material real property and valid title
to all material personal property owned by them, in each case free and
clear of all liens, encumbrances, third party rights or interests, defects
or any other restrictions except such as are described in the Prospectus or
such as do not materially affect the value of such property and do not
interfere with the use made and proposed to be made of such property by the
Company and its subsidiaries; and any real property and buildings held
under lease by the Company and its subsidiaries are held by them under
valid and enforceable leases in full force and effect with such exceptions
as are not material and do not interfere with the use made and proposed to
be made of such property and buildings by the Company and its subsidiaries
and no material default (or event which with notice or lapse of time, or
both, would constitute such a default) by the Company or any of its
subsidiaries has occurred and is continuing under any of such leases;
neither the Company nor any of its subsidiaries owns, operates, manages or
has any other right or interest in any other material real property of any
kind save as reflected in the consolidated balance sheet of the Company as
of June 30, 2000 included in the Prospectus or, with respect to the Target
Companies, as described in the opinions, dated October 10, 2000, of
Commerce & Finance Law Offices, PRC counsel for the Company, and no other
real properties are necessary for the Company and its subsidiaries for the
carrying on of the business of the Company and its subsidiaries in the
manner described in the Prospectus other than as would not, individually or
in the aggregate, have a material adverse effect on the combined financial
position, shareholders' equity or results of operations of the Company and
its subsidiaries, taken as a whole;
(h) Since the date of the latest audited financial statements included
in the Prospectus, neither the Company nor any of its subsidiaries has
(i) entered into or assumed any material contract, (ii) incurred any
material liability (including contingent liability) or other obligation,
(iii) acquired or disposed of or agreed to acquire or dispose of any
material business or any other asset or (iv) assumed or acquired any
material liabilities (including contingent liabilities) that are not
described in the Prospectus;
(i) The Company has been duly incorporated and is validly existing
under the laws of Hong Kong, with legal right, power and authority
(corporate and other) to own, use, lease and operate its properties and
conduct its business in the manner presently conducted and as described in
the Prospectus, and is duly qualified to transact business in any
jurisdiction in which it owns or leases properties or conducts any business
and such qualification is required, or is subject to no material liability
or disability by reason of the failure to be so qualified in any such
jurisdiction; the Memorandum of Association and Articles of Association of
the Company comply with the requirements of applicable Hong Kong law and
are in full force and effect;
(j) Each of China Mobile (Shenzhen) Company Limited, Guangdong Mobile
Communication Company Limited ("Guangdong Mobile"), Zhejiang Mobile
Communication Company Limited ("Zhejiang Mobile") and Jiangsu Mobile
Communication Company Limited ("Jiangsu Mobile"), Fujian Mobile
Communication Company Limited ("Fujian Mobile"), Henan Mobile Communication
Company Limited ("Henan Mobile") and Hainan Mobile Communication Company
Limited ("Hainan Mobile" and, together with the six entities named
immediately preceding hereto, the "Existing PRC Subsidiaries") is a wholly
foreign-owned enterprise with limited liability, and each of Beijing Mobile
Communication Company Limited ("Beijing Mobile"), Shanghai Mobile
Communication Company Limited ("Shanghai Mobile"), Tianjin Mobile
Communication Company Limited ("Tianjin Mobile"), Hebei Mobile
Communication Company Limited ("Hebei Mobile"), Liaoning Mobile
Communication Company Limited ("Liaoning Mobile"), Shandong Mobile
Communication Company Limited ("Shandong Mobile") and Guangxi Mobile
Communication Company Limited ("Guangxi Mobile" and, together with the six
entities named immediately preceding hereto, the "Target Companies") is a
limited liability company; and each of the Existing PRC Subsidiaries and
the Target Companies has been duly organized and is validly existing under
the laws of the People's Republic of China (the "PRC"), and its business
license is in full force and effect; each of the Existing PRC Subsidiaries
has been duly qualified as a foreign investment enterprise under applicable
PRC law; the Articles of Association of each of the Existing PRC
Subsidiaries and the Target Companies comply with the requirements of
applicable PRC law and are in full force and effect; each of the Existing
PRC Subsidiaries has all consents, approvals, authorizations,
orders,registrations, clearances and qualifications of or with any court,
governmental agency or body having jurisdiction over it or any of its
properties in each jurisdiction in which the ownership or lease of property
by it or the conduct of its business (as described in the Prospectus)
requires such qualification, except for such consents, approvals,
authorizations, orders,
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registrations, clearances and qualifications the absence of which is
disclosed in the Prospectus or which is not material to it, and has the
legal right and authority to own, use, lease and operate its assets and to
conduct its business in the manner presently conducted and as described in
the Prospectus;
(k) Each of Jiangsu Mobile (BVI) Limited ("Jiangsu BVI"), Fujian
Mobile (BVI) Limited ("Fujian BVI"), Henan Mobile (BVI) Limited ("Henan
BVI"), Hainan Mobile (BVI) Limited ("Hainan BVI"), Beijing Mobile (BVI)
Limited ("Beijing BVI"), Shanghai Mobile (BVI) Limited ("Shanghai BVI"),
Tianjin Mobile (BVI) Limited ("Tianjin BVI"), Hebei Mobile (BVI) Limited
("Hebei BVI"), Liaoning Mobile (BVI) Limited ("Liaoning BVI"), Shandong
Mobile (BVI) Limited ("Shandong BVI") and Guangxi Mobile (BVI) Limited
("Guangxi BVI" and together with the ten entities named immediately
preceding hereto, the "BVI Companies") has been duly incorporated and is
validly existing under the laws of the British Virgin Islands (the "BVI"),
with legal right, power and authority (corporate and other) to own, use,
lease and operate its properties and conduct its business in the manner
presently conducted and as described in the Prospectus, and is duly
qualified to transact business in any jurisdiction in which it owns or
leases properties or conducts any business and such qualification is
required, or is subject to no material liability or disability by reason of
the failure to be so qualified in any such jurisdiction; the Memorandum and
Articles of Association of each of the BVI Companies comply with
requirements of applicable BVI law and are in full force and effect;
Jiangsu BVI, Fujian BVI, Henan BVI, Hainan BVI, Beijing BVI, Shanghai BVI,
Tianjin BVI, Hebei BVI, Liaoning BVI, Shandong BVI and Guangxi BVI are the
sole legal and beneficial owners of the whole of the registered capital of
Jiangsu Mobile, Fujian Mobile, Henan Mobile, Hainan Mobile, Beijing Mobile,
Shanghai Mobile, Tianjin Mobile, Hebei Mobile, Liaoning Mobile, Shandong
Mobile and Guangxi Mobile, respectively, free from all security interests,
options, equities, claims or other third party rights (including, without
limitation, rights of pre-emption) of any nature whatsoever; and the
Company is the sole legal and beneficial owner of the whole of the share
capital of each of Jiangsu Mobile BVI, Fujian BVI, Henan BVI and Hainan BVI
free from all security interests, options, equities, claims or other third
party rights (including, without limitation, rights of pre-emption) of any
nature whatsoever;
(l) The Company has an authorized capitalization as set forth in the
Prospectus, and all of the issued shares of capital stock of the Company
have been duly and validly authorized and issued, are fully paid and
conform to the description of the Stock contained in the Prospectus; all of
the equity interests in each subsidiary of the Company have been duly and
validly authorized and issued, and are fully paid; all of the equity
interests in each of the Existing PRC Subsidiaries are owned directly or
indirectly by the Company, free and clear of all liens, encumbrances,
equities or claims; the holders of outstanding shares of capital stock of
the Company are not entitled to preemptive or other rights to acquire the
Securities or the shares of Stock that may be issued from time to time upon
conversion of the Securities; and except as disclosed in the Prospectus,
there are no outstanding securities convertible into or exchangeable for,
or warrants, rights or options to purchase from the Company, or obligations
of the Company to issue, the Stock or any other class of capital stock of
the Company;
(m) The Securities have been duly authorized and, at such Time of
Delivery, when issued and delivered against payment of the purchase price
therefor pursuant to this Agreement, will have been duly executed,
authenticated, issued and delivered in accordance with the Indenture (the
"Indenture"), between the Company and The Bank of New York, as trustee (the
"Trustee"), and will constitute valid and legally binding obligations of
the Company enforceable in accordance with its terms, subject, as to
enforcement, to bankruptcy, insolvency, reorganization and other laws of
general applicability relating to or affecting creditors' rights and to
general equity principles, and the holders thereof will be entitled to the
benefits provided by the Indenture, under which they are to be issued,
which will be substantially in the form filed as an exhibit to the
Registration Statement; the Indenture has been duly authorized and duly
qualified under the Trust Indenture Act and, when executed and delivered by
the Company and the Trustee will constitute a valid and legally binding
instrument, enforceable in accordance with its terms, subject, as to
enforcement, to bankruptcy, insolvency, reorganization and other laws of
general applicability relating to or affecting creditors' rights and to
general equity principles; the Securities and the Indenture, will conform
in all material respects to the descriptions thereof in the Prospectus; the
shares of Stock that may be issued from time to time upon conversion of the
Securities may be freely deposited by the Company with the Depositary
against issuance of ADRs evidencing ADSs; the Securities have been duly
approved for listing on the Luxembourg Stock Exchange, the shares of Stock
that may be issued from time to time upon the conversion of the Securities
have been duly approved for listing on The Stock Exchange of Hong Kong (the
"Hong Kong
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Stock Exchange"), and the ADSs that may be issued from time to time upon
the conversion of the Securities have been duly approved for listing on the
New York Stock Exchange (the "NYSE"); the Securities are freely
transferable by the Company to or for the account of the several
Underwriters; and there are no restrictions on subsequent transfers of the
Securities or the shares of Stock and ADSs that may be issued from time to
time upon conversion of the Securities;
(n) The Deposit Agreement has been duly authorized, executed and
delivered by the Company, and constitutes a valid and legally binding
agreement of the Company, enforceable in accordance with its terms, subject
to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium
and similar laws of general applicability relating to or affecting
creditors' rights generally and to general principles of equity; upon
issuance by the Depositary of ADRs evidencing ADSs against the deposit of
shares of Stock in respect thereof in accordance with the provisions of the
Deposit Agreement, such ADRs will be duly and validly issued and the
persons in whose names the ADRs are registered will be entitled to the
rights specified therein and in the Deposit Agreement; and the Deposit
Agreement and the ADRs conform in all material respects to the descriptions
thereof contained in the Prospectus;
(o) This Agreement has been duly authorized, executed and delivered by
the Company; and no consents, approvals, authorizations, orders,
registrations, clearances or qualifications of or with any court or
governmental agency or body or any stock exchange authorities (hereinafter
referred to as a "Governmental Agency") having jurisdiction over the
Company or any of its subsidiaries or any of their properties (hereinafter
referred to as "Governmental Authorizations") are required for the issuance
and sale of the Securities and the issuance of shares of Stock or ADSs
(including the deposit of shares of Stock with the Depositary for the
issuance of ADRs evidencing such ADSs) upon conversion of the Securities
and for the authorization, execution, delivery and performance by the
Company of this Agreement, the Indenture and the Deposit Agreement, except
(i) the registration under the Act of the Securities and the shares of
Stock and ADSs that may be issued upon conversion of the Securities and the
registration of the relevant versions of the Prospectus under the Companies
Ordinance in Hong Kong, (ii) such Governmental Authorizations as have been
duly obtained and are in full force and effect and copies of which have
been furnished to you (including (a) the listing approval for the
Securities from the Luxembourg Stock Exchange and (b) approval in principle
to list on the Hong Kong Stock Exchange the shares of Stock that may be
issued from time to time upon conversion of the Securities) and (iii) such
Governmental Authorizations as may be required under state securities or
Blue Sky laws or any laws of jurisdictions outside Hong Kong and the United
States in connection with the purchase and distribution of the Securities
by or for the account of the Underwriters;
(p) All dividends and other distributions declared and payable on the
equity interests in each of the Existing PRC Subsidiaries may under the
current laws and regulations of the PRC be paid to the Company and the
relevant BVI Companies, as applicable, and may be converted into foreign
currency that may be freely transferred out of the PRC, and except as
disclosed in the Registration Statement and the Prospectus, all such
dividends and other distributions will not be subject to withholding or
other taxes under the laws and regulations of the PRC and are otherwise
free and clear of any other tax, withholding or deduction in the PRC and
may be so paid without the necessity of obtaining any Governmental
Authorization in the PRC;
(q) (A) All payments of interest and principal on the Securities may
under the current laws and regulations of Hong Kong be paid to the holders
of the Securities in United States dollars, and all such payments are not
currently subject to withholding or other taxes under the laws and
regulations of Hong Kong and may be made free and clear of any other tax,
withholding or deduction in Hong Kong and may be so paid without the
necessity of obtaining any Governmental Authorization in Hong Kong; and
(B) all dividends and other distributions declared and payable on the
shares of capital stock of the Company may under the current laws and
regulations of Hong Kong be paid to the shareholders of the Company and the
Depositary in Hong Kong dollars, and payments of all such dividends and
other distributions are not currently subject to withholding or other taxes
under the laws and regulations of Hong Kong and may be made free and clear
of any other tax, withholding or deduction in Hong Kong and may be so paid
without the necessity of obtaining any Governmental Authorization in Hong
Kong;
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(r) The issue and sale of the Securities to be sold by the Company
hereunder, the compliance by the Company with all of the provisions of this
Agreement, the Indenture and the Deposit Agreement and the consummation of
the transactions herein and therein contemplated will not conflict with or
result in a breach or violation of any of the terms or provisions of, or
constitute a default under, any indenture, mortgage, deed of trust, loan
agreement or other agreement or instrument (including, without limitation,
the PRC Loan Documents defined in subsection (mm) below of this Section 1)
to which the Company or any of its subsidiaries is a party or by which the
Company or any of its subsidiaries is bound or to which any of the property
or assets of the Company or any of its subsidiaries is subject, nor will
such action result in any violation of the provisions of the Memorandum of
Association, Articles of Association or business licenses of the Company or
any of its subsidiaries or any law or statute or any order, rule or
regulation of any Governmental Agency having jurisdiction over the Company
or any of its subsidiaries or any of their properties;
(s) Neither the Company nor any of its subsidiaries is (i) in
violation of its Memorandum of Association and Articles of Association or
other constituent documents or (ii) in default in the performance or
observance of any material obligation, agreement, covenant or condition
contained in any indenture, mortgage, deed of trust, loan agreement, lease
or other agreement or instrument to which it is a party or by which it or
any of its properties may be bound except, in the case of clause (ii),
where such violation or default would not, individually or in the
aggregate, have a material adverse effect on the combined financial
position, shareholders' equity or results of operations of the Company and
its subsidiaries, taken as a whole;
(t) Other than as disclosed in the Prospectus, and except for any
capital duty paid or to be paid by the Company, no stamp or other issuance
or transfer taxes or duties and no capital gains, income, withholding or
other taxes are payable by or on behalf of the Company in the PRC or Hong
Kong or to any political subdivision or taxing authority of or in the PRC
or Hong Kong in connection with (i) the creation, allotment and issuance of
the Securities or the allotment and issuance of the shares of Stock from
time to time upon conversion of the Securities, (ii) the deposit by the
Company with the Depositary of shares of Stock that may be issued upon the
conversion of the Securities against the issuance of ADRs evidencing ADSs,
(iii) the sale and delivery by the Company of the Securities to or for the
respective accounts of the Underwriters, (iv) the execution, delivery and
performance of this Agreement or the Indenture or (v) the acquisition of
the Target Companies and the relevant BVI Companies (the "Acquisition")
(including the transfer of assets and liabilities to the Company and its
subsidiaries pursuant to the Acquisition);
(u) No stamp or other issuance or transfer taxes or duties and no
capital gains, income, withholding or other taxes are payable by or on
behalf of the Underwriters to the PRC or Hong Kong or any political
subdivision or taxing authority thereof or therein in connection with
(i) the creation, allotment and issuance of the Securities or the allotment
and issuance of the shares of Stock upon conversion of the Securities,
(ii) the deposit by the Company with the Depositary of shares of Stock that
may be issued upon the conversion of the Securities against the issuance of
ADRs evidencing ADSs, (iii) the sale and delivery by the Company of the
Securities to or for the respective accounts of the Underwriters, (iv) the
execution, delivery and performance of this Agreement or the Indenture or
(v) the sale and delivery outside Hong Kong by the Underwriters of the
Securities to the initial purchasers thereof [other than ordinary course
Hong Kong profits tax which may arise in respect of persons carrying on a
trade, profession or business in Hong Kong];
(v) Neither the Company nor any of its subsidiaries has taken,
directly or indirectly, any action which was designed to or which has
constituted or which might reasonably be expected to cause or result in
stabilization or manipulation of the price of any security of the Company
to facilitate the sale or resale of the Securities;
(w) The statements set forth in the Prospectus under the captions
"Description of Share Capital" and "Description of American Depositary
Receipts", insofar as they purport to constitute a summary of the terms of
the Stock and the ADSs, respectively, under the caption "Description of
Convertible Notes", insofar as they purport to constitute a summary of the
provisions of the Indenture and the terms of the Securities, under the
caption "Taxation", insofar as they purport to describe the provisions of
the laws and documents referred to therein and under the caption
"Underwriting", insofar as they purport
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8
to describe the provisions of this Agreement, the Asia Underwriting
Agreement, the Agreements among Underwriters, the Agreement between
Syndicates and the Selling Agreements, are accurate, complete and fair;
(x) Other than as set forth in the Prospectus, there are no legal or
governmental proceedings pending to which the Company or any of its
subsidiaries is a party or of which any property of the Company or any of
its subsidiaries is the subject (i) which, if determined adversely to the
Company or any of its subsidiaries, would reasonably be expected,
individually or in the aggregate, to have a material adverse effect on the
combined financial position, shareholders' equity or results of operations
of the Company and its subsidiaries, taken as a whole, or (ii) that are
required to be described in the Registration Statement or the Prospectus
and are not so described; and, to the best of the Company's knowledge, no
such proceedings are threatened or contemplated by any Governmental Agency
or threatened by others;
(y) The Company is not and, after giving effect to the offering and
sale of the Securities, will not be an "investment company", as such term
is defined in the Investment Company Act of 1940, as amended (the
"Investment Company Act");
(z) The Registration Statement, the Prospectus and the ADS
Registration Statement and the filing of the Registration Statement, the
U.S. Prospectus and the ADS Registration Statement with the Commission have
been duly authorized by and on behalf of the Company, and the Registration
Statement and the ADS Registration Statement have been duly executed
pursuant to such authorization by and on behalf of the Company;
(aa) Except as disclosed in the Registration Statement and the
Prospectus, each of the Company and its subsidiaries has all necessary
licenses, consents, authorizations, approvals, orders, certificates and
permits of and from, and has made all necessary declarations and filings
with, all Governmental Agencies (including, without limitation, the PRC
State Council, the PRC Ministry of Information Industry (the "MII"), the
State Development and Planning Commission (the "SDPC"), the China
Securities Regulation Commission (the "CSRC"), the Ministry of Foreign
Trade and Economic Cooperation (the "MOFTEC"), the Ministry of Land and
Resources (the "MOLR"), the Ministry of Finance (the "MOF"), and the
relevant provincial and local bureau or branches of the foregoing
authorities and the relevant Provincial Price Bureaus (the "Price
Bureaus")), to own, lease, license and use its properties and assets and to
conduct its business in the manner described in the Prospectus and such
licenses, consents, authorizations, approvals, orders, certificates or
permits contain no materially burdensome restrictions or conditions not
described in the Registration Statement or the Prospectus. Except as
described in the Prospectus, neither the Company nor any of its
subsidiaries has any reason to believe that the Mll or any other
Governmental Agency is considering modifying, suspending or revoking any
such licenses, consents, authorizations, approvals, orders, certificates or
permits and each of the Company and its subsidiaries is in compliance with
the provisions of all such licenses, consents, authorizations, approvals,
orders, certificates and permits in all material respects;
(bb) The Conditional Sale and Purchase Agreement (the "Acquisition
Agreement") entered into between China Mobile Hong Kong (BVI) Limited
("China Mobile BVI"), China Mobile Communications Corporation ("China
Mobile Group") and the Company on October 4, 2000 has been duly authorized,
executed and delivered by the Company, and constitutes a valid and binding
agreement of the Company enforceable in accordance with its terms, subject
to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium
and similar laws of general applicability relating to or affecting
creditors' rights generally and to general principles of equity;
(cc) The transactions set forth in the Prospectus under the caption
"The Acquisition" will not contravene any provision of applicable law, rule
or regulation and do not contravene the Memorandum of Association and
Articles of Association, other constituent documents or the business
license of the Company or any of its subsidiaries or contravene the terms
or provisions of, or constitute a default under, any indenture, mortgage,
deed of trust, loan agreement, note, lease or other agreement or instrument
binding upon the Company or any of its subsidiaries that, individually or
in the aggregate, is material to the Company and its subsidiaries, or any
judgment, rule or regulation, order or decree of any governmental body,
agency or court having jurisdiction over the Company or any of its
subsidiaries and will not result in
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9
the creation or imposition of any lien, charge, encumbrance or other
restriction upon any assets of the Company or any of its subsidiaries;
(dd) Other than as disclosed in the Prospectus, all consents,
approvals, authorizations, orders, registrations and qualifications
required in the PRC in connection with the transactions set forth in the
Prospectus under the caption "The Acquisition" have been made or
unconditionally obtained in writing (including, without limitation, all
actions necessary for the approval of such transactions BY the PRC State
Council, the Mll, the SDPC, the CSRC, the MOFTEC, the MOLR and the MOF, and
no such consent, approval, authorization, order, registration or
qualification has been withdrawn or is subject to any condition precedent
which has not been fulfilled or performed;
(ee) There are no legal or government proceedings pending against the
Company or any of its subsidiaries in the PRC challenging the effectiveness
or validity of the transactions set forth in the Prospectus under the
caption "The Acquisition" and, to the best of the Company's knowledge, no
such proceedings are threatened or contemplated by any Governmental
Agencies in the PRC or elsewhere;
(ff) To the best knowledge of the Company after due inquiries, all of
the representations and warranties relating to the Target Companies
provided by China Mobile Group and/or China Mobile BVI in the Acquisition
Agreement are true and correct in all material respects;
(gg) The Company and its subsidiaries own or have valid licenses in
full force and effect or otherwise have the legal right to use, or can
acquire on reasonable terms, all material patents, patent rights,
inventions, copyrights, know-how (including trade secrets and other
unpatented and/or unpatentable proprietary or confidential information,
systems or procedures), trademarks, service marks and trade names
(including the "China Mobile" name and logo) currently employed by them in
connection with the business currently operated by them, and neither the
Company nor any of its subsidiaries has received any notice of infringement
of or conflict with asserted rights of others with respect to any of the
foregoing which, individually or in the aggregate, if the subject of an
unfavorable decision, ruling or finding, would result in any material
adverse change in the condition, financial or otherwise, in the earnings,
business or operation of the Company and its subsidiaries, taken as a
whole; in conducting its business activities, none of the Company or any of
its subsidiaries has infringed any patent, copyright, title, trademark,
service ▇▇▇▇, trade name or other intellectual property rights already
registered by a third party in the PRC or Hong Kong; "China Mobile" logo is
a registered trademark in the PRC owned by China Mobile Group, and
application has been made on behalf of China Mobile Group for the use of
the "China Mobile" name and logo in Hong Kong, and the Company has entered
into an agreement with China Mobile Group with respect to the right of the
Company and its subsidiaries to use such name and logo, which agreement is
in full force and effect;
(hh) All returns, reports or filings which ought to have been made by
or in respect of the Company and its subsidiaries for taxation purposes
have been made and all such returns are up to date, correct and on a proper
basis, and are not, to the best of their knowledge, the subject of any
dispute with the relevant revenue or other appropriate authorities and the
provisions included in the audited accounts as set out in the Prospectus
included appropriate provisions required under Hong Kong generally accepted
accounting principles ("Hong Kong GAAP") for all taxation in respect of
accounting periods ended on or before the accounting reference date to
which such audited accounts relate for which the Company or any of its
subsidiaries was then or might reasonably be expected thereafter to become
or have become liable; neither the Company nor any of its subsidiaries has
received notice of any tax deficiency that has been asserted against the
Company or any of its subsidiaries which, if so assessed, would have a
material adverse effect on the business, results of operations or financial
condition of the Company and its subsidiaries, taken as a whole;
(ii) Other than as disclosed in the Prospectus, the Company has no
material legal obligation to provide retirement, death or disability
benefits to any of the present or past employees of the Company or any of
its subsidiaries or those of China Mobile Group or any of its other
subsidiaries or any other companies or entities;
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(jj) Except as disclosed in the Prospectus, no indebtedness (actual or
contingent) and no contract or arrangement (other than employment contracts
or arrangements) is outstanding between the Company and any director of the
Company or any person connected with such director (including his spouse,
infant children, or any company or undertaking in which he holds a
controlling interest);
(kk) No material labor dispute, work stoppage, slow down or other
conflict with the employees of the Company or its subsidiaries exists or,
to the knowledge of the Company, is threatened;
(ll) All guarantees of any indebtedness of the Company or any of its
subsidiaries are in full force and effect;
(mm) (A) Each of the Syndicate Loan Agreements (including all
appendixes and annexes) (collectively, the "PRC Loan Documents") has been
duly authorized, executed and delivered by each of the subsidiaries of the
Company that is a party to such document, and constitutes a valid and
binding agreement of each such subsidiary enforceable in accordance with
the terms of such PRC Loan Document, subject to bankruptcy, insolvency,
fraudulent transfer, reorganization, moratorium and similar laws of general
applicability relating to or affecting creditors' rights generally and to
general principles of equity; (B) other than the approval by the PRC State
Council, which has been obtained and is in full forth and effect, no
Governmental Authorization is required with respect to the transactions
contemplated under the PRC Loan Documents; and (C) the execution, delivery
and performance of such PRC Loan Documents and the compliance by each such
subsidiaries of the Company with the provisions of such PRC Loan Documents
to which it is a party will not contravene any provision of applicable law,
rule or regulation and do not contravene the Memorandum of Association and
Articles of Association, other constituent documents or the business
license of the Company or any of its subsidiaries or contravene the terms
or provisions of, or constitute a default under, any indenture, mortgage,
deed of trust, loan agreement, note, lease or other agreement or instrument
binding upon the Company or any of its subsidiaries that, individually or
in the aggregate, is material to the Company and its subsidiaries, taken as
a whole, or any judgment, rule or regulation, order or decree of any
governmental body, agency or court having jurisdiction over the Company or
any of its subsidiaries and will not result in the creation or imposition
of any lien, charge, encumbrance or other restriction upon any assets of
the Company or any of its subsidiaries;
(nn) Under the laws of the PRC, neither the Company nor any of its
properties, assets or revenues are entitled to any right of immunity on the
grounds of sovereignty from any legal action, suit or proceeding, from
set-off or counterclaim, from the jurisdiction of any court, from service
of process, from attachment to or in aid of execution of judgment or from
other legal process or proceeding for the giving of any relief or for the
enforcement of any judgment. The irrevocable and unconditional waiver and
agreement of the Company in Section 14 hereof not to plead or claim any
such immunity in any legal action, suit or proceeding based on this
Agreement is valid and binding under the laws of the PRC and Hong Kong;
(oo) Under the laws of the PRC and Hong Kong, (i) the courts of the
PRC and Hong Kong recognize and give effect to the choice of law provisions
set forth in Sections 14 and 17 hereof and enforce judgments of U.S. courts
obtained against the Company to enforce this Agreement, provided that the
judgment (A) was not obtained by fraud; (B) was final and conclusive;
(C) in the opinion of the relevant PRC court after the review of such
judgment pursuant to international treaties concluded or acceded to by the
PRC government or in accordance with the principle of reciprocity, or
otherwise in accordance with the Civil Procedure Law of the PRC, did not
contradict the basic principles of PRC law; (D) in the opinion of the
relevant PRC court after its review of such judgment pursuant to
international treaties concluded or acceded to by the PRC government or in
accordance with the principle of reciprocity, or otherwise in accordance
with the Civil Procedure Law of the PRC, did not violate state sovereignty,
security or public interest; and (E) was for a definite sum of money; and
(ii) while there is no Hong Kong legislation providing for the reciprocal
enforcement of judgments in the Hong Kong court and the New York State
court, a New York State court judgment may be enforceable in Hong Kong at
common law if (A) it is for a definite sum of money (and not relating to
taxes or penalties); (B) it is final and conclusive between the parties;
(C) bringing proceedings in the New York State court was not contrary to
any agreement between the parties to the dispute; (D) the New York State
court had jurisdiction to grant the judgment according to Hong Kong rules
on conflicts of law; (E) the New York State court judgment was not obtained
by fraud or in breach of the
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11
rules of natural justice; and (F) enforcement of the New York State court
judgment would not be contrary to public policy in Hong Kong.
(pp) No holder of any of the Securities after the completion of the
Global Offering is or will be subject to any liability in respect of any
liability of the Company by virtue only of its holding of any such
Securities. Except as disclosed in the Prospectus, there are no limitations
on the rights of holders of the Securities to hold, vote or transfer their
securities;
(qq) The Company is not a Passive Foreign Investment Company ("PFIC")
within the meaning of Section 1296 of the United States Internal Revenue
Code of 1986, as amended, and the Company believes that the Securities
should not be treated as stock of a PFIC for United States federal income
tax purposes;
(rr) The historical consolidated financial statements (and the notes
thereto) of the Company and its subsidiaries and the combined financial
statements of the Target Companies included in the Prospectus were prepared
in accordance with Hong Kong GAAP consistently applied throughout the
period involved, and fairly present the consolidated financial condition
and results of operations of the Company and its subsidiaries and the
combined financial condition and results of operations of the Target
Companies (as the case may be) at the dates and for the periods presented;
and the pro forma financial information and notes thereto included in the
Prospectus were prepared in accordance with the applicable requirements of
the Act, the Company's assumptions provide a reasonable basis for
presenting the significant effects directly attributable to the events
described therein, the related pro forma adjustments give appropriate
effect to those assumptions, and the calculations made to determine such
pro forma amounts reflect the proper application of those adjustments to
the historical financial statement amounts in the unaudited pro forma
statement of income for the year ended December 31, 1999 and the six-month
period ended June 30, 2000 with respect to certain events, including the
Acquisition, the Global Offering and the Share Offering. No other financial
statements, schedules or pro forma financial information of the Company or
its subsidiaries are required (A) by the Act or the rules and regulations
thereunder to be included in the Prospectus, (B) by the Company Ordinance
and the rules and regulations thereunder or (C) the rules and regulations
of the Hong Kong Stock Exchange or Luxembourg Stock Exchange to be included
in any of the versions of Prospectus filed with the Hong Kong Stock
Exchange or the Luxembourg Stock Exchange, respectively;
(ss) KPMG, who have certified certain financial statements of the
Company and its subsidiaries, are independent public accountants as
required by the Act and the rules and regulations of the Commission
thereunder; each of the Company and its subsidiaries maintains a system of
internal accounting controls sufficient to provide reasonable assurance
that (i) transactions are executed in accordance with management's general
or specific authorizations; (ii) transactions are recorded as necessary to
permit preparation of financial statements in conformity with Hong Kong
GAAP with a reconciliation to generally accepted accounting principles in
the United States ("U.S. GAAP"); (iii) access to assets is permitted only
in accordance with management's general or specific authorization; (iv) the
recorded accountability for assets is compared with existing assets at
reasonable intervals and appropriate actions taken with respect to any
differences; and (v) each of the Company and its subsidiaries has made and
kept books, records and accounts which, in reasonable detail, accurately
and fairly reflect the transactions and dispositions of assets of such
entity and provide a sufficient basis for the preparation of combined
financial statements in accordance with Hong Kong GAAP, with a
reconciliation thereof to U.S. GAAP;
(tt) The forecasted information included in the Prospectus under the
sub-caption "The Acquisition -- Prospective Financial Information" (the
"Estimated Financial Information") (i) is within the coverage of Rule
175(b) of the Act's regulations; (ii) was made by the Company with a
reasonable basis and in good faith; (iii) has been prepared in accordance
with Hong Kong GAAP, applied on a consistent basis with the financial
statements included in the Prospectus; and (iv) has been properly compiled
based on the assumptions described therein; the assumptions used in the
preparation of the Estimated Financial Information (x) are all those that
the Company believes are significant in forecasting the combined net profit
and combined adjusted EBITDA of the Target Companies for the year ending
December 31, 2000, and (y) reflect, for the year ending December 31, 2000,
the Company's best estimate of the events, contingencies
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and circumstances described therein; and the Estimated Financial
Information presents the Company's best estimate, as of the date hereof, of
the combined net profit and combined adjusted EBITDA of the Target
Companies for the year ending December 31, 2000; and
(vv) The Securities are rated "Baa2" or higher by Moody's Investor's
Service Inc. and "BBB" or higher by Standard & Poor's Ratings Group, a
division of ▇▇▇▇▇▇-▇▇▇▇, Inc., as evidenced by a letter, dated a recent
date, from each such rating agency delivered to you by the Company.
2. Subject to the terms and conditions herein set forth, (a) the Company
agrees to sell to each of the Underwriters, and each of the Underwriters agrees,
severally and not jointly, to purchase from the Company at a purchase price of
--% of the principal amount thereof, plus accrued interest, if any, from --,
2000 to the First Time of Delivery hereunder (the "Purchase Price"), the
principal amount of Securities set forth opposite the name of such Underwriter
in Schedule I hereto and (b) in the event and to the extent that the
Underwriters shall exercise the election to purchase Optional Securities as
provided below, the Company agrees to sell to each of the Underwriters, and each
of the Underwriters agrees, severally and not jointly, to purchase from the
Company at the Purchase Price, that portion of the principal amount of Optional
Securities as to which such election shall have been exercised (to be adjusted
by you so as to eliminate fractions of US$--) determined by multiplying such
aggregate principal amount of Optional Securities by a fraction, the numerator
of which is the maximum aggregate principal amount of Optional Securities which
such Underwriter is entitled to purchase as set forth opposite the name of such
Underwriter in Schedule I hereto and the denominator of which is the maximum
aggregate principal amount of Optional Securities that all of the Underwriters
are entitled to purchase hereunder.
The Company hereby grants to the Underwriters the right to purchase at
their election up to US$-- million aggregate principal amount of Optional
Securities, at the Purchase Price, for the purpose of covering overallotments in
the sale of the Firm Securities and other transactions. Any such election to
purchase Optional Securities may be exercised from time to time by written
notice from you to the Company, given within a period of 28 calendar days after
the date of the U.S. Prospectus and setting forth the aggregate principal amount
of Optional Securities to be purchased and the date on which such Optional
Securities are to be delivered, as determined by you but in no event earlier
than the First Time of Delivery (as defined in Section 4 hereof) or later than
30 calendar days after the date of the U.S Prospectus.
3. (a) Upon the authorization by the Underwriters of the release of
the Firm Securities, the several Underwriters propose to offer the Firm
Securities for sale upon the terms and conditions set forth in the
Prospectus.
(b) Subject always to the several obligations of the Underwriters to
purchase the Securities pursuant to Section 2, the Company acknowledges
that, at the discretion of each Underwriter, the sale of the Securities
referred to in this Agreement shall be by such Underwriter either as agent
of the Company (in which case the purchase obligation in Section 2 shall be
reduced pro tanto) to procure purchasers of the Securities, or failing
which such Underwriter itself shall purchase the Securities as principal.
4. (a) The Securities to be purchased by each Underwriter hereunder
will be represented by one or more definitive global Securities in
book-entry form which will be deposited by or on behalf of the Company with
The Depository Trust Company ("DTC") or its designated custodian. The
Company will deliver the Securities to the Underwriters for the account of
each Underwriter, against payment by or on behalf of such Underwriter of
the purchase price therefor by wire transfer through the Federal Wire
System in New York in U.S. dollars in immediately available funds to an
account designated by the Company to the Underwriters at least forty-eight
hours in advance. The Company will cause the certificates representing the
definitive global Securities to be made available for checking at least one
Business Day prior to such Time of Delivery with respect thereto at the
office of DTC or its designated custodian.
(b) The time and date of the delivery and payment shall be, with respect to
the Firm Securities, 9:30am, New York City time, on --, 2000 or such other
time and date as the Underwriters and the Company may agree upon in
writing, and, with respect to the Optional Securities, 9:30am, New York
City time, on the date specified by the Underwriters in the written notice
by such Underwriters in their election to purchase the Optional Securities,
or at such other time and date as the Underwriters and the Company may
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agree upon in writing. Such time and date for delivery of the Firm
Securities is herein called the "First Time of Delivery", such time and
date for delivery of the Optional Securities, if not the First Time of
Delivery, is herein called the "Second Time of Delivery", and each such
time and date for delivery is herein called a "Time of Delivery".
(c) The documents to be delivered at the First Time of Delivery by or
on behalf of the parties hereto pursuant to Section 7 hereof, including the
cross-receipt for the Securities and any additional documents requested by
the Underwriters pursuant to Section 7(p) hereof, will be delivered at the
offices of ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇'▇ ▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇
▇▇▇▇ (the "Closing Location"), at such Time of Delivery of the Securities,
or such other time as the Company and the Underwriters may agree upon in
writing. A meeting will be held at the Closing Location at 2:00 p.m., Hong
Kong time, on the Business Day next preceding such Time of Delivery, at
which meeting the final drafts of the documents to be delivered pursuant to
the preceding sentence will be available for review by the parties hereto.
For the purposes of this Section 4, "Business Day" shall mean each Monday,
Tuesday, Wednesday, Thursday and Friday which is not a day on which banking
institutions in New York or Hong Kong are generally authorized or obligated
by law or executive order to close.
5. The Company agrees with each of the Underwriters:
(a) To prepare the Prospectus in a form approved by you and to file
the U.S. Prospectus pursuant to Rule 424(b) under the Act not later than
the Commission's close of business on the second business day following the
execution and delivery of this Agreement, or, if applicable, such earlier
time as may be required by Rule 430A(a)(3) under the Act; to make no
further amendment or any supplement to the Registration Statement or
Prospectus prior to the last Time of Delivery which shall be reasonably
disapproved by you promptly after reasonable notice thereof; to advise you,
promptly after it receives notice thereof, of the time when any amendment
to the Registration Statement has been filed or becomes effective or any
supplement to the Prospectus or any amended Prospectus has been filed and
to furnish you copies thereof; to file promptly all reports required to be
filed by the Company with the Commission pursuant to Section 13(a), 13(c)
or 15(d) of the Exchange Act subsequent to the date of the Prospectus and
for so long as the delivery of a prospectus is required in connection with
the offering or sale of the Securities; to advise you, promptly after it
receives notice thereof, of the issuance by the Commission of any stop
order or of any order preventing or suspending the use of any Preliminary
Prospectus or the Prospectus, of the suspension of the qualification of the
Securities or the shares of Stock or ADSs issuable from time to time upon
conversion of the Securities for offering or sale in any jurisdiction, of
the initiation or threatening of any proceeding for any such purpose, or of
any request by the Commission for the amending or supplementing of the
Registration Statement or Prospectus or for additional information; and, in
the event of the issuance of any stop order or of any order preventing or
suspending the use of any Preliminary Prospectus or the Prospectus or
suspending any such qualification, promptly to use its best efforts to
obtain the withdrawal of such order;
(b) Promptly from time to time to take such action as you may
reasonably request to qualify the Securities and the shares of Stock or
ADSs issuable from time to time upon conversion of the Securities for
offering and sale under the securities laws of such jurisdictions as you
may request and to comply with such laws so as to permit the continuance of
sales and dealings therein in such jurisdictions for as long as may be
necessary to complete the distribution of the Securities, provided that in
connection therewith the Company shall not be required to qualify as a
foreign corporation or to file a general consent to service of process in
any jurisdiction;
(c) Prior to 10:00 a.m., New York City time, on the Business Day next
succeeding the date of this Agreement and from time to time, to furnish the
Underwriters with written and electronic copies of the Prospectus in New
York City in such quantities as you may reasonably request, and, if the
delivery of a prospectus is required at any time prior to the expiration of
nine months after the time of issue of the Prospectus in connection with
the offering or sale of the Securities or the shares of Stock or ADSs
issuable upon conversion of the Securities and if at such time any events
shall have occurred as a result of which the Prospectus as then amended or
supplemented would include an untrue statement of a material fact or omit
to state any material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made when
such Prospectus is delivered, not misleading, or, if for
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any other reason it shall be necessary during such period to amend or
supplement the Prospectus or to file under the Exchange Act any document
incorporated by reference in the Prospectus in order to comply with the
Act, the Exchange Act, the Trust Indenture Act, the Companies Ordinance of
Hong Kong and the Listing Rules of the Hong Kong Stock Exchange or the
Luxembourg Stock Exchange, to notify you and upon your request to file such
document and prepare and furnish without charge to each Underwriter and to
any dealer in securities as many written and electronic copies as you may
from time to time reasonably request of an amended Prospectus or a
supplement to the Prospectus which will correct such statement or omission
or effect such compliance, and in case any Underwriter is required to
deliver a prospectus in connection with sales of any of the Securities or
the shares of Stock or ADSs issuable upon conversion of the Securities at
any time nine months or more after the time of issue of the Prospectus,
upon your request but at the expense of such Underwriter, to prepare and
deliver to such Underwriter as many written and electronic copies as you
may request of an amended or supplemented Prospectus complying with
Section 10(a)(3) of the Act;
(d) To make generally available to its securityholders as soon as
practicable, but in any event not later than 18 months after the effective
date of the Registration Statement (as defined in Rule 158(c) under the
Act), an earnings statement of the Company and its subsidiaries (which need
not be audited) complying with Section 11(a) of the Act and the rules and
regulations of the Commission thereunder (including, at the option of the
Company, Rule 158);
(e) During the period beginning from the date hereof and continuing to
and including the date 180 days after the date of the Prospectus (the
"Lock-Up Period"), not to offer, sell, contract to sell or otherwise
dispose of, except as provided hereunder or under the underwriting
agreements between the Company and the respective underwriters for the
Share Offering, any Securities, any shares of Stock or ADS or any
securities of the Company that are substantially similar to the Securities
or the shares of Stock or ADSs, including but not limited to any securities
that are convertible into or exchangeable for, or that represent the right
to receive, Securities, any shares of Stock or ADSs or any such
substantially similar securities (other than pursuant to employee stock
option plans existing on, or upon the conversion or exchange of convertible
or exchangeable securities outstanding as of, the date of this Agreement),
without the prior written consent of the Underwriters; it is understood
that China Mobile BVI, China Mobile (Hong Kong) Group Limited ("CMHK
Group") and China Mobile Group, pursuant to separate "lock-up" agreements
as described in Section 7(q), have agreed to restrictions similar to those
set forth above;
(f) To furnish to the holders of the Securities as soon as practicable
after the end of each fiscal year an annual report (in English) (including
a review of operations and annual audited financial statements of the
Company and its consolidated subsidiaries prepared in conformity with Hong
Kong GAAP), together with a reconciliation of U.S. GAAP of net income,
shareholders' equity and, as necessary, other selected balance sheet and
income statement items and, as soon as practicable after the end of the
second quarter of each fiscal year statements of income prepared in
conformity with Hong Kong GAAP, together with a reconciliation to U.S. GAAP
of certain items contained in such statements;
(g) During a period of three years from the effective date of the
Registration Statement, to furnish to you copies of all reports or other
communications (financial or other) furnished to shareholders of the
Company or holders of the Securities, and to deliver to you (i) as soon as
they are available, copies of any reports and financial statements
furnished to or filed with the Commission or any securities exchange on
which any class of securities of the Company is listed (such financial
statements to be on a consolidated basis to the extent the accounts of the
Company and its subsidiaries are consolidated in reports furnished to its
shareholders generally or to the Commission); and (ii) such additional
information concerning the business and financial condition of the Company
as you may from time to time reasonably request;
(h) To use the net proceeds received by it from the sale of the
Securities pursuant to this Agreement in the manner specified in the
Prospectus under the caption "Use of Proceeds";
(i) Upon conversion of any Securities from time to time, to issue
shares of Stock in accordance with the terms of the Securities and the
provisions of the Indenture and, if the converting holders elect to receive
ADSs upon such conversion, to deposit shares of Stock so issued with the
Depositary in accordance with the provisions of the Deposit Agreement and
otherwise to comply with the
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Deposit Agreement so that ADRs evidencing ADSs will be executed (and, if
applicable, countersigned) and issued by the Depositary against receipt of
such shares and delivered to the converting holders in accordance with the
terms of the Securities and the provisions of the Indenture;
(j) Not to (and to cause its subsidiaries not to) take, directly or
indirectly, any action which is designed to or which constitutes or which
might reasonably be expected to cause or result in stabilization or
manipulation of the price of any security of the Company or facilitate the
sale or resale of the Securities;
(k) To use its best efforts to list, subject to notice of issuance,
(A) the Securities on the Luxembourg Stock Exchange and (B) the shares of
Stock issuable from time to time upon conversion of the Securities on the
Hong Kong Stock Exchange and the ADSs that may be issued from time to time
upon the conversion of the Securities on the NYSE, and to maintain such
listings;
(l) In addition to the obligations set forth in subsection (c) of this
Section 5, the Company will (i) comply with the Hong Kong Stock Exchange's
and the Luxembourg Stock Exchange's rules or other requirements to publish
and disseminate to the public, under certain circumstances, information
affecting any prospective financial information in the Prospectus and
(ii) announce in a press release (delivered to The Wall Street Journal/Dow
▇▇▇▇▇ News Service or other news service acceptable to the Global
Coordinators) any information so required by the Hong Kong Stock Exchange
or the Luxembourg Stock Exchange to be published and disseminated to the
public; provided, however, that no such press release shall be issued by
the Company without having been submitted to the Underwriters for their
review not less than three Business Days (as defined in Section 4(c)) prior
to such issuance, or such lesser period of time as is necessary for the
Company to avoid violation of any law or regulation applicable to it. Such
press release shall also be filed with the Commission on Form 6-K under the
Exchange Act;
(m) For so long as the Securities or any shares of Stock or ADSs
issued upon conversion of the Securities are outstanding, the Company
agrees to file with the Hong Kong Stock Exchange, the Luxembourg Stock
Exchange, the NYSE, the CSRC, the Commission, and any other governmental
agency, authority or instrumentality in Hong Kong, Luxembourg, the PRC and
the United States, as the case may be, such relevant reports, documents,
agreements and other information which may from time to time be required by
applicable law or regulation to be so filed because the Securities, the
shares of Stock or the ADSs are outstanding, as the case may be;
(n) If the Company elects to rely upon Rule 462(b), the Company shall
file a Rule 462(b) Registration Statement with the Commission in compliance
with Rule 462(b) by 10:00 P.M., Washington, D.C. time, on the date of this
Agreement, and the Company shall at the time of filing either pay to the
Commission the filing fee for the Rule 462(b) Registration Statement or
give irrevocable instructions for the payment of such fee pursuant to Rule
111(b) under the Act;
(o) The Company agrees to indemnify and hold the Underwriters harmless
against any documentary, stamp or similar issuance or transfer taxes,
duties or fees, including any interest and penalties, payable in Hong Kong,
the PRC, Luxembourg or Belgium which are or may be required to be paid in
connection with the creation, allotment, issuance, offer and distribution
of the Securities or the issuance of any shares of Stock or ADS upon
conversion of the Securities and the execution and delivery of this
Agreement, the Indenture and the Deposit Agreement; provided, however, that
the Company shall not be responsible for any such taxes, duties or fees
which arise as a result of the distribution of the Securities by the
Underwriters in a manner other than that as is customary in such
transactions. In addition, the Company agrees to indemnify and hold the
Underwriters harmless against any Hong Kong Stock Exchange transaction levy
which may be required to be paid in connection with the issuance of any
shares of Stock upon conversion of the Securities and the listing of such
shares on the Hong Kong Stock Exchange;
(p) None of the Company, its affiliates or any person acting on its or
their behalf has engaged or will engage in any directed selling efforts (as
that term is defined in Regulation S) with respect to the Securities in the
Global Offering outside the United States and the Company, its affiliates
and each person acting on its or their behalf will comply with the offering
restrictions requirement of Regulation S; and
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(q) Upon request of a Global Coordinator, to furnish, or cause to be
furnished, to such Global Coordinator an electronic version of the
Company's trademarks, servicemarks and corporate logo for use on the
website, if any, operated by such Global Coordinator for the purpose of
facilitating the online offering of the Securities (the "License");
provided, however, that the License shall be used solely for the purpose
described above, is granted without any fee, may not be assigned or
transferred and shall terminate on the 26th day after the First Time of
Delivery.
6. [Form :The Company covenants and agrees with the several Underwriters
that the Company will pay or cause to be paid the following: (i) the fees,
disbursements and expenses of the Company's counsel and accountants in
connection with the registration of the Securities and the shares of Stock
issuable upon conversion of the Securities under the Act and all other expenses
in connection with the preparation, printing and filing of the Registration
Statement, any Preliminary Prospectus and the Prospectus and amendments and
supplements thereto and the mailing and delivering of copies thereof to the
Underwriters and dealers; (ii) the cost of printing or producing any Agreement
among Underwriters, this Agreement, the Indenture, the Blue Sky and Legal
Investment Memoranda, closing documents (including any compilations thereof) and
any other documents in connection with the offering, purchase, sale and delivery
of the Securities; (iii) all expenses in connection with the qualification of
the Securities and the shares of Stock issuable upon conversion of the
Securities for offering and sale under state securities laws as provided in
Section 5(b) hereof, including the fees and disbursements of counsel for the
Underwriters in connection with such qualification and in connection with the
Blue Sky and legal investment surveys; (iv) any fees charged by securities
rating services for rating the Securities; (v) the filing fees incident to, and
the fees and disbursements of counsel for the Underwriters in connection with,
any required review by the National Association of Securities Dealers, Inc. of
the terms of the sale of the Securities; (vi) the cost of preparing the
Securities; (vii) the fees and expenses of the Trustee and any agent of the
Trustee and the fees and disbursements of counsel for the Trustee in connection
with the Indenture and the Securities; and (viii) all other costs and expenses
incident to the performance of its obligations hereunder which are not otherwise
specifically provided for in this Section. It is understood, however, that,
except as provided in this Section, and Sections 8 and 11 hereof, the
Underwriters will pay all of their own costs and expenses, including the fees of
their counsel, transfer taxes on resale of any of the Securities by them, and
any advertising expenses connected with any offers they may make.]
7. The obligations of the Underwriters hereunder, as to the Securities to
be delivered at each Time of Delivery, shall be subject, in their discretion, to
the condition that all representations and warranties and other statements of
the Company herein are, at and as of such Time of Delivery, true and correct,
the condition that the Company shall have performed all of its and their
obligations hereunder theretofore to be performed, and the following additional
conditions:
(a) The U.S. Prospectus shall have been filed with the Commission
pursuant to Rule 424(b) within the applicable time period prescribed for
such filing by the rules and regulations under the Act and in accordance
with Section 5(a) hereof; if the Company has elected to rely upon
Rule 462(b), the Rule 462(b) Registration Statement shall have become
effective by 10:00 p.m., Washington, D.C. time, on the date of this
Agreement; no stop order suspending the effectiveness of the Registration
Statement or any part thereof shall have been issued and no proceeding for
that purpose shall have been initiated or threatened by the Commission; and
all requests for additional information on the part of the Commission, if
any, shall have been complied with to your reasonable satisfaction;
(b) ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, counsel for the Underwriters, shall have
furnished to you such opinion and letter (a draft of such opinion and
letter is attached as Annex II(a) hereto), dated such Time of Delivery, in
form and substance satisfactory to you, and such counsel shall have
received or been permitted access to such papers and information as they
may reasonably request to enable them to give such opinion;
(c) ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, Hong Kong counsel for the Underwriters, shall
have furnished to you such opinion or opinions (a draft of such opinion is
attached as Annex II(b) hereto), dated such Time of Delivery, in form and
substance satisfactory to you, and such counsel shall have received or been
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permitted access to such papers and information as they may reasonably
request to enable them to give such opinion;
(d) Haiwen & Partners, PRC counsel for the Underwriters, shall have
furnished to you such opinion or opinions (a draft of such opinion or
opinions is attached as Annex II(c) hereto), dated such Time of Delivery,
in form and substance satisfactory to you, and such counsel shall have
received or been permitted access to such papers and information as they
may reasonably request to enable them to give such opinion;
(e) Shearman & Sterling, U.S. counsel for the Company, shall have
furnished to you their written opinion, dated such Time of Delivery, in
form and substance satisfactory to you, to the effect that:
(i) Assuming that this Agreement has been duly authorized,
executed and delivered by the Company under Hong Kong law, this
Agreement has been duly executed and delivered by the Company;
(ii) Assuming that the Indenture has been duly authorized,
executed and delivered by the Company under Hong Kong law and
constitutes a valid and legally binding obligation of the Company
under Hong Kong law enforceable in accordance with its terms, that the
Indenture has been duly authorized, executed and delivered by the
Trustee, and that each of the Trustee and the Company has full power,
authority and legal right to enter into and perform its obligations
thereunder, the Indenture constitutes a valid and legally binding
agreement of the Company enforceable in accordance with its terms,
subject to bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium and similar laws of general applicability
relating to or affecting creditors' rights generally and to general
principles of equity; and the Indenture has been duly qualified under
the Trust Indenture Act and conform to the description thereof in the
Prospectus;
(iii) Assuming that the Deposit Agreement has been duly
authorized, executed and delivered by the Company and the Depositary
and constitutes a valid and legally binding agreement of the Company
under Hong Kong law enforceable in accordance with its terms, the
Deposit Agreement has been duly executed and delivered by the Company
and, assuming due authorization, execution and delivery of the Deposit
Agreement by the Depositary and that each of the Depositary and the
Company has full power, authority and legal right to enter into and
perform its obligations thereunder, constitutes a valid and legally
binding agreement of the Company enforceable in accordance with its
terms, subject to bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium and similar laws of general applicability
relating to or affecting creditors' rights generally and to general
principles of equity, except that such counsel need express no opinion
with respect to Section 5.8 of the Deposit Agreement;
(iv) Assuming that the Securities have been duly authorized and
executed by the Company under the laws of Hong Kong and have been duly
authenticated by the Trustee and delivered as contemplated by the
Indenture and assuming, insofar as Hong Kong law is concerned, that
the Securities are valid and legally binding obligations of the
Company enforceable in accordance with their terms, the Securities
constitute valid and legally binding agreements of the Company
enforceable in accordance with its terms, subject to bankruptcy,
insolvency, fraudulent transfer, reorganization, moratorium and
similar laws of general applicability relating or affecting creditors'
rights generally and to general principles of equity and entitled to
the benefits provided by the Indenture; and the Securities conform to
the description thereof in the Prospectus;
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(v) Upon due issuance by the Depositary of ADRs evidencing ADSs
in accordance with the provisions of the Deposit Agreement against the
deposit by the Company of the underlying shares of Stock that may be
issued from time to time by the Company upon conversion of the
Securities, such ADRs evidencing the ADSs will be duly and validly
issued and the holders thereof will be entitled to the rights
specified therein and in the Deposit Agreement;
(vi) Under the laws of the State of New York relating to personal
jurisdiction, the Company has, pursuant to and to the extent provided
in Section 14 of this Agreement, validly and irrevocably submitted to
the personal jurisdiction of any state or federal court located in the
Borough of Manhattan, The City of New York, New York (each a "New York
Court") in any action arising out of or relating to this Agreement or
the transactions contemplated hereby, has validly and irrevocably
waived any objection to the venue of a proceeding in any such court,
and has validly and irrevocably appointed the Authorized Agent (as
defined herein) as its authorized agent for the purpose described in
Section 14 hereof; and service of process effected on such agent in
the manner set forth in Section 14 hereof will be effective to confer
valid personal jurisdiction over the Company in the New York Courts;
(vii) The Registration Statement has been declared effective
under the Act and the rules and regulations thereunder, the Prospectus
either has been filed with the Commission pursuant to Rule 424(b)
under the Act, or has been included in the Registration Statement (as
the case may be), and such counsel has no knowledge of any stop order
having been issued suspending the effectiveness of the Registration
Statement or of any proceedings for that purpose having been
instituted or threatened or pending by the Commission;
(viii) Each of (A) the issue and sale of the Securities being
delivered at such Time of Delivery to be sold by the Company, (B) the
issuance from time to time by the Company of shares of Stock that may
be issued upon conversion of the Securities and the deposit of any
such shares by the Company with the Depositary for the issuance of
ADRs evidencing ADSs pursuant to the Deposit Agreement and (C) the
performance by the Company of its obligations under this Agreement or
the Indenture will not violate any existing federal law of the United
States or law of the State of New York applicable to the Company;
provided, however, that for the purposes of this clause (vi), such
counsel need not express any opinion with respect to Federal or state
securities laws, other antifraud laws and fraudulent transfer laws;
provided, further, that insofar as performance by the Company of its
obligations under this Agreement or the Indenture is concerned, such
counsel need not express any opinion as to bankruptcy, insolvency,
reorganization, moratorium and similar laws of general applicability
relating to or affecting creditors' rights;
(ix) All regulatory consents, authorizations, approvals and
filings required to be obtained or made by the Company under the
federal laws of the United States and the laws of the State of New
York for the issuance of the Securities and the sale and delivery of
the Securities to the Underwriters have been obtained or made;
(x) The Company is not an "investment company" as such term is
defined in the Investment Company Act;
(xi) The documents incorporated by reference in the Prospectus or
any further amendment or supplement thereto made by the Company prior
to such Time of Delivery (other than the financial statements and
financial data contained therein as to which such counsel express no
opinion), when they were filed with the Commission, appear in their
face to have been appropriately responsive in all material respects to
the requirement of the Exchange Act and the applicable rules and
regulations of the Commission thereunder; and they have no reason to
believe that any of such documents, when such documents were filed,
contained an untrue
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statement of a material fact or omitted to state a material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made when such documents were so
filed, not misleading; and
(xii) The Registration Statement, as of its effective date, and
the U.S. Prospectus, as of the date of the U.S. Prospectus, and any
further amendments and supplements thereto made by the Company prior
to such Time of Delivery (other than the financial statements and
other financial data including prospective financial data contained
therein, as to which such counsel need express no opinion) appear on
their face to be appropriately responsive in all material respects to
the requirements of the Act and the Trust Indenture Act and the
applicable rules and regulations of the Commission thereunder; no
facts came to such counsel's attention which gave such counsel reason
to believe that, at the time it became effective, the Registration
Statement or any further amendment thereto made by the Company prior
to such Time of Delivery (other than the financial statements and
other financial data including prospective financial data contained
therein, as to which such counsel need express no opinion) contained
an untrue statement of a material fact or omitted to state a material
fact required to be stated therein or necessary to make the statements
therein not misleading or that, as of its date and as of such Time of
Delivery, the Prospectus or any further amendment or supplement
thereto made by the Company prior to such Time of Delivery (other than
the financial statements and other financial data including
prospective financial data contained therein, as to which such counsel
need express no opinion) contained an untrue statement of a material
fact or omitted to state a material fact necessary to make the
statements therein, in the light of the circumstances under which they
were made, not misleading. Such counsel may state that they do not
assume responsibility for the accuracy, completeness or fairness of
the statements contained in the Registration Statement or the
Prospectus, except for those made in the Registration Statement and
the Prospectus in the sections entitled "Description of American
Depositary Receipts", insofar as they relate to provisions of the ADRs
and the Deposit Agreement, "Description of Convertible Notes", insofar
as they relate to provisions of the Indenture and the terms of the
Securities, "Taxation--United States Federal Income Taxation", insofar
as they relate to provisions of Federal tax laws of the United States
therein described, and "Underwriting", insofar as they relate to the
provisions of this Agreement, the Asia Underwriting Agreement, the
Agreements among Underwriters, the Agreement between Syndicates and
the Selling Agreements.
In rendering the foregoing opinion, Shearman & Sterling may rely,
as to matters governed by Hong Kong and PRC law, upon the respective
opinions of Linklaters & Alliance and Commerce & Finance Law Offices
referred to below.
(f) Linklaters, Hong Kong counsel for the Company, shall have
furnished to you their written opinion, dated such Time of Delivery, in
form and substance satisfactory to you, to the effect that:
(i) The Company has been duly incorporated and is validly
existing as a corporation under the laws of Hong Kong, with legal
right, power and authority (corporate and other) to own, use, lease
and operate its properties and conduct its business as described in
the Prospectus; the Memorandum of Association and Articles of
Association comply with the applicable requirements of Hong Kong law
and are in full force and effect;
(ii) The Company has corporate power to enter into and to perform
its obligations under this Agreement, the Indenture, the Securities,
the Deposit Agreement and the Acquisition Agreement; each of this
Agreement, the Indenture, the Securities, the Deposit Agreement and
the Acquisition Agreement has been duly authorized, executed and
delivered by the Company; the Acquisition Agreement is enforceable by
the Company in accordance with its terms; assuming that this
Agreement, the Indenture, the Securities and the Deposit
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Agreement, as the case may be, constitutes valid and binding
agreements under the laws of the State of New York, this Agreement,
the Indenture, the Securities and the Deposit Agreement, respectively,
constitutes valid and legally binding obligation enforceable in
accordance with its terms; and except for shareholders' consent of the
Acquisition, the Company has taken all necessary corporate action to
authorize the performance of each of such agreements;
(iii) The Share Transfer Agreement, dated September 30, 2000,
among China Mobile Group, CMHK Group, China Mobile BVI and the BVIs
Companies that are parties thereto has been duly authorized, executed
and delivered by CMHK Group and constitutes valid and legally binding
obligations of CMHK Group enforceable in accordance with its terms;
(iv) The Company has an authorized share capital as set forth in
the Prospectus, and all of the issued shares of the Company have been
duly and validly authorized and issued and are fully paid and
nonassessable and are at the time of issue free and clear of all
liens, encumbrances, equities or claims; the holders of outstanding
shares of the Company are not entitled to preemptive or other similar
rights under the Articles of Association of the Company and Hong Kong
laws to acquire the Securities or the share of Stock that may be
issued from time to time upon conversion of the Securities; the
Securities are freely transferable by the Company to or for the
account of the several Underwriters in the manner contemplated herein
and to the initial purchasers thereof, and there are no restrictions
under Hong Kong law on subsequent transfers of the Securities or the
shares of Stock that may be issued upon conversion of the Securities;
the Hong Kong Stock Exchange has formally approved the listing of, and
permission to deal in, all of the shares of Stock that may be issued
upon conversion of the Securities;
(v) All governmental or regulatory consents, approvals,
authorizations or orders required under Hong Kong law by the Company
in connection with the execution, delivery and performance of this
Agreement, the Indenture, the Securities, the Deposit Agreement or the
Acquisition Agreement have been obtained and are in full force and
effect;
(vi) A search conducted against the Company at the cause book
kept at the High Court of Hong Kong reveals no petition for the
winding up of the Company or for the appointment of a receiver of the
Company;
(vii) The issue and sale of the Securities being delivered at
such Time of Delivery to be sold by the Company, and the compliance by
the Company with all of the provisions of this Agreement, the
Indenture, the Securities and the Deposit Agreement and the
consummation of the transactions herein and therein contemplated
(a) will not conflict with or result in a breach or violation of any
of the terms or provisions of, or constitute a default under, any
indenture, mortgage, deed of trust, loan agreement or other agreement
or instrument the existence and terms of which are actually known to
such counsel to which the Company is a party or by which the Company
is bound; (b) will not result in any violation of the provisions of
the Memorandum of Association or Articles of Association of the
Company; (c) will not result in any violation of any provision of Hong
Kong law or statute; and (d) will not result in a violation of any
order, rule or regulation actually known to such counsel of any Hong
Kong Government Agency having jurisdiction over the Company;
(viii) The execution of the Acquisition Agreement by the Company,
the compliance by the Company with all of the provisions of the
Acquisition Agreement and the consummation of the transactions therein
contemplated (a) will not conflict with or result in a breach or
violation of any of the terms or provisions of, or constitute a
default under, any indenture, mortgage, deed of trust, loan agreement
or other agreement or instrument the existence and terms of which are
actually known to such counsel to which the Company is a party or by
which the Company is bound; (b) will
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not result in any violation of the provisions of the Memorandum of
Association or Articles of Association of the Company; (c) will not
result in any violation of any provision of Hong Kong law or statute;
and (d) will not result in a violation of any order, rule or
regulation actually known to such counsel of any Hong Kong Government
Agency having jurisdiction over the Company;
(ix) The statements set forth in the Prospectus under the caption
"Description of Share Capital", insofar as they purport to constitute
a summary of the terms of the Stock, under the caption "Description of
Convertible Notes", insofar as they purport to constitute a summary of
the provisions of the Indenture and the terms of the Securities, and
under the captions "Enforceability of Civil Liabilities",
"Relationship with China Mobile Communications Corporation",
"Taxation--Hong Kong" and "Underwriting", insofar as they purport to
describe the provisions of Hong Kong laws and documents referred to
therein, constitute a fair summary thereof under Hong Kong law,
however, counsel expresses no opinion as to whether the same
constitutes a fair summary in the context of a prospectus in the
United States;
(x) No stamp or other issuance or transfer taxes or duties and no
capital gains, income, withholding or other taxes are payable by or on
behalf of the Underwriters in Hong Kong or to any political
subdivision or taxing authority of or in Hong Kong in connection with
(i) the sale and delivery by the Company of the Securities to or for
the respective accounts of the Underwriters or (ii) the sale and
delivery outside Hong Kong by the Underwriters of the Securities to
the initial purchasers thereof in the manner contemplated herein,
other than ordinary course Hong Kong profits tax which may arise in
respect of persons carrying on a trade, profession or business in Hong
Kong;
(xi) The Company has corporate power to issue and to file the
Registration Statement with the Commission and has taken all necessary
corporate actions to authorize the execution and filing of the
Registration Statement;
(xii) The Company's agreement to the choice of law provisions set
forth in Sections 14 and 17 hereof, Section 5.8 of the Deposit
Agreement and in Section 111 of the Indenture will be recognized by
the courts of Hong Kong; the Company can ▇▇▇ and be sued in its own
name under the laws of Hong Kong; the irrevocable submission of the
Company to the exclusive jurisdiction of a New York Court, the waiver
by the Company of any objection to the venue of a proceeding of a New
York Court and the agreement of the Company that this Agreement, the
Indenture, the Securities and the Deposit Agreement shall be governed
by and construed in accordance with the laws of the State of New York
are legal, valid and binding; service of process effected in the
manner set forth in Section 14 hereof will be effective, insofar as
the law of Hong Kong is concerned, to confer valid personal
jurisdiction over the Company; and judgment obtained in a New York
Court arising out of or in relation to the obligations of the Company
under this Agreement, the Indenture, the Securities or the Deposit
Agreement would be enforceable against the Company in the courts of
Hong Kong at common law;
(xiii) The Company is not entitled to any immunity under Hong
Kong law on the basis of sovereignty or otherwise in respect of its
obligations under this Agreement and could not successfully interpose
any such immunity as a defense to any suit or action brought or
maintained in respect of its obligations under this Agreement, the
Indenture or the Securities; and the waiver by the Company of immunity
to jurisdiction (including the waiver of sovereign immunity to which
the Company may become entitled subsequent to the date of this
Agreement) and immunity to pre-judgment attachment, post-judgment
attachment and execution in any suit, action or proceeding against it
arising out of or based on this Agreement, the Indenture or the
Securities is a valid and binding obligation of the Company under Hong
Kong law;
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(xiv) Based on Hong Kong case law as at the date hereof, the
indemnification and contribution provisions set forth in Section 8
hereof and in Section 5.8 of the Deposit Agreement do not contravene
public policy or laws of Hong Kong;
(xv) All payments of interest and principal on the Securities, as
well as any capital gains on any sale of Securities, may under the
current laws and regulations of Hong Kong be paid to the holders of
the Securities in United States dollars, and all such payments and
gains will not be subject to withholding or other taxes under the laws
and regulations of Hong Kong and are otherwise free and clear of any
other tax, withholding or deduction in Hong Kong and may be so paid
without the necessity of obtaining any Governmental Authorization in
Hong Kong;
(xvi) All dividends and other distributions declared and payable
on the shares of Stock of the Company including any such dividends or
distributions to be paid to the Depositary may under the current laws
and regulations of Hong Kong be paid in Hong Kong and may be converted
into foreign currency that may be freely transferred out of Hong Kong,
and all such dividends and other distributions as at the date hereof
are not subject to withholding or other taxes under the laws and
regulations of Hong Kong and may otherwise be made free and clear of
any other tax, withholding or deduction in Hong Kong and without the
necessity of obtaining any Governmental Authorization in Hong Kong;
and
(xvii) So far as it is actually known to such counsel, the
Company is not in violation of its Memorandum of Association and
Articles of Association or in default in the performance or observance
of any material obligation, agreement, covenant or condition contained
in any indenture, mortgage, deed of trust, loan agreement, lease or
other agreement or instrument actually known to such counsel to which
the Company is a party or by which it or any of its properties may be
bound.
(g) Commerce & Finance Law Offices, PRC counsel to the Company, shall
have furnished to you their written opinion, dated such Time of Delivery,
in form and substance satisfactory to you, to the effect that:
(i) Each of the Existing PRC Subsidiaries has been duly organized
and is validly existing as a wholly foreign-owned enterprise with
limited liability under PRC law, and its business license is in full
force and effect; it has been duly qualified as a foreign investment
enterprise under PRC law; each of the Target Companies has been duly
organized and is validly existing as a limited liability company under
PRC law, and its business license is in full force and effect; the
Articles of Association of each of the Company's subsidiaries comply
with the requirements of applicable PRC law and are in full force and
effect; each of these subsidiaries has full power and authority
(corporate and other) and has all consents, approvals, authorizations,
orders, registrations, clearances and qualifications of or with any
court, governmental agency or body having jurisdiction over it or any
of its properties required for the ownership or lease of property by
it and the conduct of its business, and has the legal right and
authority to own, use, lease and operate its assets and to conduct its
business in the manner presently conducted and as described in the
Prospectus; the restructuring based on which it was organized is legal
and binding and is in full force and effect;
(ii) The Company has been duly qualified as a foreign corporation
for transaction of business and is in good standing under the laws of
PRC with full power and authority (corporate and other) to own or
lease its properties and conduct business as described in the
Prospectus;
(iii) The equity interests of each of the Target Companies have
been duly and validly authorized and issued, are fully paid and
non-assessable, and the equity interests of each of the
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Existing PRC Subsidiaries have been duly and validly authorized and
issued, are fully paid and non-assessable, and are owned directly or
indirectly by the Company, free and clear of all liens, encumbrances,
equities or claims; no Governmental Authorization of or filing with
any Governmental Agency is required under PRC law for the ownership by
the Company, upon completion of the Acquisition, of equity interest in
each of the Target Companies except the approval from the State
Council, MOFTEC and the State Administration for Foreign Exchange,
which has been obtained and is in full force and effect; the liability
of the Company in respect of its equity interest in (A) each of the
Existing PRC Subsidiaries directly owned by it and (B) each of the BVI
Companies is limited to its investment therein, and the liability of
each of the BVI Companies in respect of its equity interest in the
Existing PRC Subsidiaries directly owned by it is or, upon completion
of the Acquisition, in the Target Companies directly owned by it will
be, limited to its investment therein;
(iv) The Company's subsidiaries have valid title to, or valid
leasehold interests in, all of their material real property and valid
title to all material personal property owned by them, in each case
free and clear of all liens, encumbrances, third party rights or
interests, defects or any other restrictions except such as are
described in the Prospectus or such as do not materially affect the
value of such property and do not interfere with the use made and
proposed to be made of such property by the subsidiaries of the
Company; and any real property and buildings held under lease by the
Company's subsidiaries are held by them under valid and enforceable
leases in full force and effect with such exceptions as are not
material and do not interfere with the use made and proposed to be
made of such property and buildings by the Company's subsidiaries, and
no material default (or event which with notice or lapse of time, or
both, would constitute such a default) by the Company's subsidiaries
has occurred and is continuing under any of such leases (in giving the
opinion in this clause, such counsel may state that no examination of
record titles for the purpose of such opinion has been made, and that
they are relying upon a general review of the titles of the Company's
subsidiaries, upon abstracts, reports and policies of title companies
rendered or issued at or subsequent to the time of acquisition of such
property by the Company's subsidiaries, and, in respect of matters of
fact, upon certificates of officers of the Company or its
subsidiaries, provided that such counsel shall state that they believe
that both you and they are justified in relying upon such opinions,
abstracts, reports, policies and certificates);
(v) To the best of such counsel's knowledge and other than as set
forth in the Prospectus, there are no legal or governmental
proceedings pending in the PRC to which the Company or any of its
subsidiaries is a party or of which any property of the Company or any
of its subsidiaries is subject which, if determined adversely to the
Company or any of its subsidiaries, would individually or in the
aggregate result in any material adverse change, or any event
involving a prospective material adverse change, in or affecting the
general affairs, management, financial position, shareholders' equity
or results of operations of the Company and its subsidiaries, taken as
a whole; and, to the best of such counsel's knowledge, no such
proceedings are threatened or contemplated by any Governmental Agency
or threatened by others;
(vi) The issue and sale by the Company of the Securities being
delivered at such Time of Delivery and the compliance by the Company
with all of the provisions of this Agreement, the Indenture and the
Deposit Agreement and the consummation of the transactions herein and
therein contemplated will not conflict with or result in a breach or
violation of any of the terms or provisions of, or constitute a
default under, any indenture, mortgage, deed of trust, loan agreement
or other agreement or instrument known to such counsel to which any of
the Company's subsidiaries is a party or by which any of the Company's
subsidiaries is bound or to which any of the property or assets of the
Company's subsidiaries is subject, nor will such action result in any
violation of the provisions of the Memorandum of Association and
Articles of Association or business licenses of any of the Company's
subsidiaries or any law or statute or any order, rule or regulation
known to such counsel of any Governmental Agency having jurisdiction
over the Company's subsidiaries or any of their properties;
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(vii) (A) The execution and delivery of the Acquisition Agreement
by the Company, the compliance by the Company with all of the
provisions of the Acquisition Agreement and the consummation of the
transactions therein contemplated will not conflict with or result in
a breach or violation of any of the terms or provisions of, or
constitute a default under, any indenture, mortgage, deed of trust,
loan agreement or other agreement or instrument known to such counsel
to which any of the Company's subsidiaries is a party or by which any
of the Company's subsidiaries is bound or to which any of the property
or assets of the Company's subsidiaries is subject, nor will such
action result in any violation of the provisions of the Memorandum of
Association and Articles of Association or business licenses of any of
the Company's subsidiaries or any law or statute or any order, rule or
regulation known to such counsel of any Governmental Agency having
jurisdiction over the Company's subsidiaries or any of their
properties; and the Acquisition Agreement has been duly authorized,
executed and delivered by China Mobile Group and constitutes valid and
legally binding obligation of China Mobile Group enforceable in
accordance with its terms; and
(B) Each of (1) the seven Capital Contribution Agreements, each
dated August 30, 2000, among China Mobile Group and the respective
Target Company and service company named therein, (2) the seven Share
Transfer Agreement, each dated August 30, 2000, among China Mobile
Group and the respective Target Company and service company named
therein, (3) the seven Agreements Regarding the Transfer of Personnel,
Finances and Assets and the Related Rights and Obligations, each dated
August 30, 2000, between the respective Target Company and service
company named therein, (4) the seven Agreements Regarding the Transfer
of Personnel, Finances and Assets Not Directly Related to Mobile
Communication Services, each dated August 30, 2000, among China Mobile
Group and the respective Target Company and service company named
therein and (5) the Share Transfer Agreement (the agreements in (1)
through (5) collectively, the "Restructuring Agreements") has been
duly authorized, executed and delivered by China Mobile Group and,
assuming it has been duly authorized, executed and delivered by each
of the parties to such agreement, constitutes valid and legally
binding obligation of China Mobile Group and each such party
enforceable in accordance with its terms; all Governmental
Authorizations with respect to the transactions contemplated under the
Restructuring Agreements have been made or obtained and are in full
force and effect; and the execution and delivery of such agreement,
the consummation of the transactions contemplated therein and the
compliance with all the provisions thereof will not conflict with or
result in a breach or violation of any of the terms or provisions of,
or constitute a default under, any indenture, mortgage, deed of trust,
loan agreement or other agreement or instrument known to such counsel
to which any of the Company's subsidiaries is a party or by which any
of the Company's subsidiaries is bound or to which any of the property
or assets of the Company's subsidiaries is subject, nor will such
action result in any violation of the provisions of the Memorandum of
Association and Articles of Association or business licenses of any of
the Company's subsidiaries or any law or statute or any order, rule or
regulation known to such counsel of any Governmental Agency having
jurisdiction over the Company's subsidiaries or any of their
properties;
(viii) No Governmental Authorization or filing of or with any
Governmental Agency is required under PRC law for the consummation by
the Company of the transactions contemplated by this Agreement or the
Indenture, except the approvals from the State Council and the CSRC
which have been duly obtained and are in full force and effect;
(ix) The subsidiaries of the Company have all necessary licenses,
consents, authorizations, approvals, orders, certificates and permits
of and from, and have made all declarations and filings with all
Governmental Agencies (including, without limitation, the State
Council, the Mll, the SDPC, the CSRC, the MOFTEC, the MOLR, the MOF,
the provincial and local bureau or branches of the foregoing
authorities and the Price Bureaus) to own, lease, license and use its
properties, assets and spectrum and to build, own and operate the base
stations to conduct its business in the manner described in the
Prospectus and such licenses, consents, authorizations, approvals,
orders, certificates and permits contain no materially burdensome
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restrictions or conditions not described in the Registration Statement
or the Prospectus. Except as described in the Prospectus, neither the
Company nor any of its subsidiaries has any reason to believe that the
Mll or any other Governmental Agency is considering modifying,
suspending or revoking any such licenses, consents, authorizations,
approvals, orders, certificates or permits and each of the Company and
its subsidiaries is in compliance with the provisions of all such
licenses, consents, authorizations, approvals, orders, certificates or
permits in all material respects;
(x) None of the Company's subsidiaries is in violation of its
constituent documents or in default in the performance or observance
of any material obligation, agreement, covenant or condition contained
in any indenture, mortgage, deed of trust, loan agreement, lease or
other agreement or instrument to which it is a party or by which it or
any of its properties may be bound;
(xi) The statements set forth in the Prospectus under the caption
"Description of Share Capital", "Description of Convertible Notes",
"Enforceability of Civil Liabilities", "Risk Factors", "Our Company",
"The Telecommunications Industry in China", "Business", "Regulation",
"Relationship with China Mobile Communications Corporation" and
"Relationship with China Telecommunications Corporation", to the
extent such statements relate to matters of PRC law or regulation or
to the provisions of documents therein described, are accurate,
complete and fair;
(xii) No stamp or other issuance or transfer taxes or duties and
no capital gains, income, withholding or other taxes are payable by or
on behalf of the Underwriters to the PRC or to any political
subdivision or taxing authority thereof or therein in connection with
(i) the sale and delivery by the Company of Securities to or for the
respective accounts of the Underwriters or (ii) the sale and delivery
outside the PRC by the Underwriters of the Securities to the initial
purchasers thereof in the manner contemplated herein;
(xiii) The transactions set forth in the Prospectus under the
caption "The Acquisition" do not and will not contravene, in any
material respect, any provision of applicable law, rule or regulation
of the PRC and do not contravene the Memorandum of Association and
Articles of Association, other constituent documents or the business
license of the Company or any of its subsidiaries or contravene the
terms or provisions of, or constitute a default under, any indenture,
mortgage, deed of trust, loan agreement, note, lease or other
agreement or instrument binding upon the Company or any of its
subsidiaries that, individually or in the aggregate, is material to
the Company and its subsidiaries, or any judgment, order or decree of
any governmental body, agency or court having jurisdiction over the
Company or any of its subsidiaries and will not result in the creation
or imposition of any lien, charge, encumbrance or other restriction
upon any assets of the Company or any of its subsidiaries;
(xiv) Except as disclosed in the Prospectus, all consents,
approvals, authorizations, orders, registrations and qualifications
required under PRC law in connection with the transactions set forth
in the Prospectus under the caption "The Acquisition" have been made
or obtained in writing (including, without limitation, all actions
necessary for the approval of such transactions by the PRC State
Council, the Mll, the SDPC, the CSRC, the MOFTEC, the MOLR, the MOF,
and the Price Bureaus), and no such consent, approval, authorization,
order, registration or qualification is subject to any condition
precedent which has not been fulfilled or performed;
(xv) There are no legal or governmental proceedings pending in
the PRC challenging the effectiveness or validity of the transactions
set forth in the Prospectus under the caption "The Acquisition" and,
to the best of the Company's knowledge, no such proceedings are
threatened or contemplated by any Governmental Agencies in the PRC or
elsewhere;
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(xvi) Insofar as matters of the law of the PRC are concerned, the
Registration Statement and the filing of the Registration Statement
with the Commission have been duly authorized by and on behalf of the
Company; and the Registration Statement has been duly executed
pursuant to such authorization by or on behalf of the Company;
(xvii) The Company's agreement to the choice of law provisions
set forth in Section 14 hereof, in Section 5.8 of the Deposit
Agreement and Section 111 of the Indenture will be recognized by the
courts of the PRC; if, despite such provisions, any such court would
deem any aspect of this Agreement, the Deposit Agreement or the
Indenture to be governed by or construed in accordance with the law of
the PRC, then each of this Agreement, the Deposit Agreement and the
Indenture would constitute the valid and legally binding instrument of
the Company, enforceable against it in accordance with its terms,
subject to applicable bankruptcy, insolvency, reorganization,
moratorium or other similar laws affecting the rights of creditors
generally, by general principles of equity and by the procedural
requirements and public policy considerations set forth in applicable
provisions of the Civil Procedure Law of the PRC relating to the
enforceability of foreign judgments;
(xviii) The Company and/or its subsidiaries can ▇▇▇ and be sued
in its own name under the laws of the PRC; the irrevocable submission
of the Company to the exclusive jurisdiction of a New York Court, the
waiver by the Company of any objection to the venue of a proceeding of
a New York Court and the agreement of the Company that this Agreement
shall be governed by and construed in accordance with the laws of the
State of New York are valid and legally binding; service of process
effected in the manner set forth in Section 14 hereof will be
effective, insofar as the law of the PRC is concerned, to confer valid
personal jurisdiction over the Company; any judgment obtained in a New
York Court arising out of or in relation to the obligations of the
Company under this Agreement, the Indenture or the Deposit Agreement
would be enforceable against the Company in the courts of the PRC in
accordance with the Civil Procedure Law of the PRC, subject to the
conditions described in the Prospectus under "Enforceability of Civil
Liabilities"; the Company is not entitled to any immunity on the basis
of sovereignty or otherwise in respect of its obligations under this
Agreement, the Deposit Agreement or the Indenture and could not
successfully interpose any such immunity as a defense to any suit or
action brought or maintained in respect of its obligations under this
Agreement, the Deposit Agreement or the Indenture; and the waiver by
the Company of immunity to jurisdiction (including the waiver of
sovereign immunity to which the Company may become entitled subsequent
to the date of this Agreement) and immunity to pre-judgment
attachment, post-judgment attachment and execution in any suit, action
or proceeding against it arising out of or based on this Agreement,
the Deposit Agreement and the Indenture is a valid and legally binding
obligation of the Company under the law of the PRC; each of this
Agreement, the Deposit Agreement and the Indenture is in proper legal
form under the laws of the PRC for the enforcement thereof against the
Company in the PRC without further action on the part of the
Underwriters, the Depositary or the Trustee; and to ensure the
legality, validity, enforceability or admissibility in evidence of any
of this Agreement, the Deposit Agreement or the Indenture, except for
their official translation into Chinese for their presentation to a
PRC court, it is not necessary that any such document be filed or
recorded with any court or other authority in the PRC or that any
stamp or similar tax be paid on or in respect of any such document or
Securities;
(xix) The indemnification and contribution provisions set forth
in Section 8 hereof and in Section 5.8 of the Deposit Agreement do not
contravene the public policy of the PRC, and insofar as matters of PRC
law are concerned, constitute the legal, valid and binding obligations
of the Company, enforceable in accordance with the terms therein,
subject, as to enforcement, to bankruptcy, insolvency, reorganization
and other laws of general applicability relating to or affecting
creditors' rights;
-26-
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(xx) All dividends and other distributions declared and payable
upon the equity interests in the Company's subsidiaries to the Company
may be converted into foreign currency that may be freely transferred
out of the PRC, and all such dividends and other distributions are not
and, except as disclosed in the Registration Statement and the
Prospectus will not be subject to withholding or other taxes under the
laws and regulations of the PRC and, except as disclosed in the
Registration Statement and the Prospectus are otherwise free and clear
of any other tax, withholding or deduction under PRC law, in each case
without the necessity of obtaining any Governmental Authorization in
the PRC, except such as have been obtained;
(xxi) The entering into, performance and enforcement of this
Agreement in accordance with its terms will not subject the
Underwriters to a requirement to be licensed or otherwise qualified to
do business in the PRC, nor will any Underwriter be deemed to be
resident, domiciled, carrying on business through an establishment or
place in the PRC or in breach of any laws or regulations of the PRC by
reason of entering into, performance or enforcement of this Agreement;
(xxii) Under the laws of the PRC, neither the Company, nor any of
its subsidiaries, nor any of their respective properties, assets or
revenues, are entitled to any right of immunity on the grounds of
sovereignty from any legal action, suit or proceeding, from setoff or
counterclaim, from the jurisdiction of any court, from service of
process, from attachment prior to or in aid of execution of judgment
or from other legal process or proceeding for the giving of any relief
or for the enforcement of any judgment;
(xxiii) The application of the net proceeds from the Global
Offering, as set forth in and contemplated by the Prospectus, will not
contravene any provision of applicable PRC law or the Memorandum of
Association and Articles of Association, other constitutive documents
or the business license of the Company or, to the best of such
counsel's knowledge, contravene the terms or provisions of, or
constitute a default under, any indenture, mortgage, deed of trust,
loan agreement, note, lease or other agreement or instrument binding
upon the Company or any of its subsidiaries, or any judgment, order or
decree of any PRC governmental body, agency or court having
jurisdiction over the Company or any of its subsidiaries. In rendering
the opinion in this subsection, such counsel may state that they have
assumed that to the extent any document referred to in this subsection
is governed by the law of a jurisdiction other than the PRC, such
document would be enforced as written;
(xxiv) The Company's PRC subsidiaries are subject to PRC income
tax at the rate of 33%, in accordance with the Income Tax Law of the
PRC for Enterprises with Foreign Investment and Foreign Enterprises
with effect from July 1, 1991; to the best of its knowledge, such
counsel is not aware of any event or circumstance which may result in
such rate being invalid or ineffective or capable of being revoked;
(xxv) The Acquisition Agreement has been duly authorized,
executed and delivered by China Mobile Group and is enforceable by the
Company against China Mobile Group in accordance with its terms;
(xxvi) (A) Each of the PRC Loan Documents has been duly
authorized, executed and delivered by each party thereto, and
constitutes a valid and binding agreement of each such party
enforceable in accordance with the terms of such PRC Loan Document,
subject to bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium and similar laws of general applicability
relating to or affecting creditors' rights generally and to general
principles of equity; (B) other than the approval by the PRC State
Council, which has been obtained and is in full force and effect, no
Governmental Authorization is required with respect to the
transactions contemplated under the PRC Loan Documents; and (C) the
execution, delivery and performance of such PRC Loan
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Documents by each subsidiaries of the Company that is a party to such
document and the compliance by each such subsidiary with the
provisions of such document will not contravene any provision of
applicable law, rule or regulation and do not contravene the
Memorandum of Association and Articles of Association, other
constituent documents or the business license of the Company or any of
its subsidiaries or contravene the terms or provisions of, or
constitute a default under, any indenture, mortgage, deed of trust,
loan agreement, note, lease or other agreement or instrument binding
upon the Company or any of its subsidiaries that, individually or in
the aggregate, is material to the Company and its subsidiaries, or any
judgment, rule or regulation, order or decree of any governmental
body, agency or court having jurisdiction over the Company or any of
its subsidiaries and will not result in the creation or imposition of
any lien, charge, encumbrance or other restriction upon any assets of
the Company or any of its subsidiaries; and
(xxvii) Although they do not assume any responsibility for the
accuracy, completeness or fairness of the statements contained in the
Registration Statement or the Prospectus, except for those referred to
in the opinion in subsection (xi) of this Section 7(g), they have no
reason to believe that, as of its effective date, the Registration
Statement or any further amendment thereto made by the Company prior
to such Time of Delivery (other than the financial statements, as to
which such counsel need express no opinion) contained an untrue
statement of a material fact or omitted to state a material fact
required to be stated therein or necessary to make the statements
therein not misleading or that, as of its date, the Prospectus or any
further amendment or supplement thereto made by the Company prior to
such Time of Delivery (other than the financial statements therein, as
to which such counsel need express no opinion) contained an untrue
statement of a material fact or omitted to state a material fact
necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading or that, as
of such Time of Delivery, the Registration Statement, the Prospectus
or any further amendment or supplement thereto made by the Company
prior to such Time of Delivery (other than the financial statements
therein, as to which such counsel need express no opinion) contains an
untrue statement of a material fact or omits to state a material fact
necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading;
(h) ▇▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇, BVI counsel to the Company, shall have
furnished to you their written opinion, dated such Time of Delivery, in
form and substance satisfactory to you, to the effect that:
(i) Each of China Mobile BVI and the BVI Companies has been duly
incorporated and is validly existing under the laws of the BVI, with
legal right, power and authority (corporate and other) to own, use,
lease and operate its properties and conduct its business in the
manner presently conducted and as described in the Prospectus, and is
duly qualified to transact business in any jurisdiction in which it
owns or leases properties or conducts any business and such
qualification is required, or is subject to no material liability or
disability by reason of the failure to be so qualified in any such
jurisdiction; the Memorandum and Articles of Association of each
comply with requirements of applicable BVI law and are in full force
and effect; and
(ii) (A) The Acquisition Agreement has been duly authorized,
executed and delivered by China Mobile BVI, and constitutes valid and
legally binding obligations of China Mobile BVI enforceable in
accordance with its terms; and (B) the Share Transfer Agreement has
been duly authorized, executed and delivered by China Mobile BVI and
each of the BVI Companies that are parties thereto and constitutes
valid and legally binding obligations of China Mobile BVI and each
such BVI Company;
(i) ▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP, counsel for the Depositary, shall have
furnished to you their written opinion, dated such Time of Delivery, in
form and substance satisfactory to you, to the effect that:
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(i) The Deposit Agreement has been duly authorized, executed and
delivered by the Depositary and, assuming due authorization, execution
and delivery of the Deposit Agreement by the Company, constitutes a
valid and legally binding obligation of the Depositary, enforceable in
accordance with its terms, subject as to enforcement to bankruptcy,
insolvency, reorganization and similar laws of general applicability
relating to or affecting creditors' rights and to general equity
principles;
(ii) Upon issuance in accordance with the provisions of the
Deposit Agreement by the Depositary of ADRs evidencing the ADSs
against the deposit of any shares of Stock in respect thereof that may
be issued from time to time upon conversion of the Securities
(assuming such shares will have been, at the time of such deposit,
(a) duly authorized, paid and nonassessable and (b) registered in
compliance with the Act), such ADRs will be duly and validly issued
and will entitle the holders thereof to the rights specified therein
and in the Deposit Agreement; and
(iii) The ADS Registration Statement and any amendments thereof
or supplements thereto, as of their respective effective dates, have
been declared effective under the Act and, to the best of such
counsel's knowledge, no stop order suspending the effectiveness of the
ADS Registration Statement or any part thereof has been issued and no
proceedings for that purpose have been instituted or are pending or
contemplated under the Act, and the ADS Registration Statement and any
amendments thereof or supplements thereto, have been complied as to
form in all material respects with the requirements of the Act and the
rules and regulations of the Commission thereunder;
(j) On the date of the Prospectus, or if a time prior to the execution
of this Agreement, at 9:30 a.m., New York City time, on the effective date
of any post-effective amendment to the Registration Statement filed
subsequent to the date of this Agreement and also at each Time of Delivery,
KPMG shall have furnished to you a letter or letters, dated the respective
dates of delivery thereof, in form and substance satisfactory to you, to
the effect set forth in Annex I hereto;
(k) (i) Neither the Company nor any of its subsidiaries shall have
sustained since the date of the latest audited financial statements
included in the Prospectus any loss or interference with its business from
fire, explosion, flood or other calamity, whether or not covered by
insurance, or from any labor dispute or court or governmental action, order
or decree, otherwise than as set forth or contemplated in the Prospectus,
and (ii) since the respective dates as of which information is given in the
Prospectus, there shall not have been any change in the capital stock of
the Company or any of its subsidiaries, or any change in consolidated
short-term debt or consolidated long-term debt of the Company and its
subsidiaries, or any change, or any event involving a prospective change,
in or affecting the general affairs, management, financial position,
shareholders' equity or results of operations of the Company and its
subsidiaries, taken as a whole, otherwise than as set forth or contemplated
in the Prospectus, the effect of which, in any such case described in
clause (i) or (ii), is in the judgment of the Representatives so material
and adverse as to make it impracticable or inadvisable to proceed with the
public offering or the delivery of the Securities being delivered at such
Time of Delivery on the terms and in the manner contemplated in the
Prospectus;
(l) On or after the date hereof, (i) no downgrading shall have
occurred in the ratings accorded to the Securities and the Company's other
debt securities by any "nationally recognized statistical rating
organization", as that term is defined by the Commission for purposes of
Rule 436(g)(2) under the Act, and (ii) no such organization shall have
publicly announced that it has under surveillance or review, with possible
negative implications, its rating of any of the Company's debt securities;
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(m) On or after the date hereof, there shall not have occurred any of
the following: (i) a suspension or material limitation in trading in
securities generally on the NYSE or the Hong Kong Stock Exchange; (ii) a
suspension or material limitation in trading in the Company's securities on
the NYSE or the Hong Kong Stock Exchange; (iii) a general moratorium on
commercial banking activities in New York or Hong Kong or the PRC declared
by the relevant authorities; (iv) a change or development involving a
prospective change in United States, Hong Kong or PRC taxation affecting
the Company, the Securities or the transfer thereof or the imposition of
exchange controls by the United States or Hong Kong, or any change or
development involving a prospective change in the PRC exchange controls, if
the effect of any such event specified in this clause (iv) would materially
and adversely affect the financial markets or the market for the Securities
and other debt or equity securities; or (v) the outbreak or escalation of
hostilities involving the United States, Hong Kong or the PRC or the
declaration by the United States, Hong Kong or the PRC of a national
emergency or war, if the effect of any such event specified in this clause
(v) in the judgment of the Representatives makes it impracticable or
inadvisable to proceed with the public offering or the delivery of the
Securities being delivered at such Time of Delivery on the terms and in the
manner contemplated in the Prospectus; or (vi) the occurrence of any
material adverse change in the existing financial, political or economic
conditions in the United States, Hong Kong or the PRC or elsewhere which,
in the judgment of the Representatives would materially and adversely
affect the financial markets or the market for the Securities and other
debt or equity securities (the Underwriters shall if practicable consult
with the Company before electing to terminate the Underwriters' obligations
hereunder pursuant to clauses (v) and (vi) of this Section 7(m));
(n) The Securities to be sold by the Company at such Time of Delivery
shall have been approved for listing on the Luxembourg Stock Exchange, the
shares of Stock issuable upon conversion of the Securities shall have been
approved in principle for listing on the Hong Kong Stock Exchange and the
ADSs issuable from time to time upon conversion of the Securities shall
have been approved for listing on the NYSE, subject to official notice of
issuance;
(o) The Acquisition Agreement shall be in full force and effect and no
material amendment shall have been made thereto;
(p) The Company shall have furnished or caused to be furnished to you
at such Time of Delivery certificates of officers of the Company
satisfactory to you as to the accuracy of the representations and
warranties of the Company herein at and as of such Time of Delivery, as to
the performance by the Company of all of its obligations hereunder to be
performed at or prior to such Time of Delivery, and as to such other
matters as you may reasonably request, and the Company shall have furnished
or caused to be furnished certificates as to the matters set forth in
subsections (a) and (k) of this Section 7, and as to such other matters as
you may reasonably request;
(q) (i) Each of the Company and China Mobile BVI shall have executed a
"lock-up" agreement to the effect that, without the prior written consent
of the Underwriters, it will not, during the period beginning from the date
hereof and continuing to and including the date 180 days after the date of
the Prospectus, offer, sell, contract to sell, hedge, or otherwise dispose
of (A) any Securities, any shares of Stock or ADSs or any other securities
of the Company which are substantially similar to the Securities or shares
of Stock or ADSs or which are convertible or exchangeable into or
exercisable for securities of the Company which are substantially similar
to the Securities or the shares of Stock or ADSs or (B) any of its own
shares or similar securities; (ii) CMHK Group shall have executed a similar
"lock-up" agreement with respect to (A) any shares of China Mobile BVI or
any securities which are convertible or exchangeable into or exercisable
for shares of China Mobile BVI or (B) any of its own shares or similar
securities; and (iii) China Mobile Group shall have executed a similar
"lock-up" agreement with respect to any shares of CMHK Group or any
securities which are convertible or exchangeable into or exercisable for
shares of CMHK Group or (B) any of its own shares or similar securities;
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(r) The Company shall have complied with the provisions of Section
5(c) hereof with respect to the furnishing of prospectuses on the Business
Day next succeeding the date of this Agreement;
(s) The respective listing agreements (A) between the Company and the
Hong Kong Stock Exchange with respect to shares of Stock, (B) between the
Company and the Luxembourg Stock Exchange with respect to the Securities
and other debt securities of the Company listed thereon and (C) between the
Company and the NYSE with respect to ADSs shall be in full force and
effect;
(t) MOFTEC shall have approved (A) the conversion of each of the
Target Companies into a wholly foreign-owned enterprise and (B) the revised
Articles of Association of each of the Target Companies; and each of the
Target Companies shall have been duly qualified as a foreign investment
enterprise under applicable PRC law.
8. (a) The Company will indemnify and hold harmless each Underwriter
against any losses, claims, damages or liabilities, joint or several, to
which such Underwriter may become subject, under the Act or otherwise,
insofar as such losses, claims, damages or liabilities (or actions in
respect thereof) arise out of or are based upon an untrue statement or
alleged untrue statement of a material fact contained in any of the
Preliminary Prospectus, the Registration Statement, the ADS Registration
Statement and the Prospectus or any amendment or supplement thereto, or
arise out of or are based upon the omission or alleged omission to state
therein a material fact required to be stated therein or necessary to make
the statements therein not misleading, and will reimburse each Underwriter
for any legal or other expenses reasonably incurred by such Underwriter in
connection with investigating or defending any such action or claim as such
expenses are incurred; provided, however, that the Company shall not be
liable in any such case to the extent that any such loss, claim, damage or
liability arises out of or is based upon an untrue statement or alleged
untrue statement or omission or alleged omission made in any of the
Preliminary Prospectus, the Registration Statement, the ADS Registration
Statement and the Prospectus, or any amendment or supplement thereto in
reliance upon and in conformity with written information furnished to the
Company by any Underwriter expressly for use therein.
(b) Each Underwriter will indemnify and hold harmless the Company
against any losses, claims, damages or liabilities to which the Company may
become subject, under the Act or otherwise, insofar as such losses, claims,
damages or liabilities (or actions in respect thereof) arise out of or are
based upon an untrue statement or alleged untrue statement of a material
fact contained in any of the Preliminary Prospectus, the Registration
Statement, the ADS Registration Statement and the Prospectus, or any
amendment or supplement thereto, or arise out of or are based upon the
omission or alleged omission to state therein a material fact required to
be stated therein or necessary to make the statements therein not
misleading, in each case to the extent, but only to the extent, that such
untrue statement or alleged untrue statement or omission or alleged
omission was made in any of the Preliminary Prospectus, the Registration
Statement, the ADS Registration Statement and the Prospectus, or any such
amendment or supplement thereto, in reliance upon and in conformity with
written information furnished to the Company by such Underwriter expressly
for use therein; and will reimburse the Company for any legal or other
expenses reasonably incurred by the Company in connection with
investigating or defending any such action or claim as such expenses are
incurred.
(c) Promptly after receipt by an indemnified party under subsection
(a) or (b) above of notice of the commencement of any action, such
indemnified party shall, if a claim in respect thereof is to be made
against an indemnifying party under such subsection, notify the
indemnifying party in writing of the commencement thereof; but the omission
so to notify the indemnifying party shall not relieve the indemnifying
party from any liability which it may have to any indemnified party
otherwise than under such subsection. In case any such action shall be
brought against any indemnified party, such indemnified party shall notify
the indemnifying party of the commencement thereof and the indemnifying
party shall be entitled to participate therein and, to the extent that it
shall wish, jointly with any other indemnifying party similarly notified,
to assume the defense thereof, with counsel satisfactory to such
indemnified party (which shall not, except with the consent of the
indemnified party, be counsel to the indemnifying party), and, after notice
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from the indemnifying party to such indemnified party of its election so to
assume the defense thereof, the indemnifying party shall not be liable to
such indemnified party under such subsection for any legal expenses of
other counsel or any other expenses, in each case subsequently incurred by
such indemnified party, in connection with the defense thereof other than
reasonable costs of investigation. No indemnifying party shall, without the
written consent of the indemnified party, effect the settlement or
compromise of, or consent to the entry of any judgment with respect to, any
pending or threatened action or claim in respect of which indemnification
or contribution may be sought hereunder (whether or not the indemnified
party is an actual or potential party to such action or claim) unless such
settlement, compromise or judgment (i) includes an unconditional release of
the indemnified party from all liability arising out of such action or
claim and (ii) does not include a statement as to or an admission of fault,
culpability or a failure to act, by or on behalf of any indemnified party.
(d) If the indemnification provided for in this Section 8 is
unavailable to or insufficient to hold harmless an indemnified party under
subsection (a) or (b) above in respect of any losses, claims, damages or
liabilities (or actions in respect thereof) referred to therein, then each
indemnifying party shall contribute to the amount paid or payable by such
indemnified party as a result of such losses, claims, damages or
liabilities (or actions in respect thereof) in such proportion as is
appropriate to reflect the relative benefits received by the Company on the
one hand and the Underwriters on the other from the offering of the
Securities. If, however, the allocation provided by the immediately
preceding sentence is not permitted by applicable law or if the indemnified
party failed to give the notice required under subsection (c) above, then
each indemnifying party shall contribute to such amount paid or payable by
such indemnified party in such proportion as is appropriate to reflect not
only such relative benefits but also the relative fault of the Company on
the one hand and the Underwriters on the other in connection with the
statements or omissions which resulted in such losses, claims, damages or
liabilities (or actions in respect thereof), as well as any other relevant
equitable considerations. The relative benefits received by the Company on
the one hand and the Underwriters on the other shall be deemed to be in the
same proportion as the total net proceeds from the offering of the
Securities purchased under this Agreement (before deducting expenses)
received by the Company bear to the total underwriting discounts and
commissions received by the Underwriters with respect to the Securities
purchased under this Agreement, in each case as set forth in the table on
the cover page of the U.S. Prospectus. The relative fault shall be
determined by reference to, among other things, whether the untrue or
alleged untrue statement of a material fact or the omission or alleged
omission to state a material fact relates to information supplied by the
Company on the one hand or the Underwriters on the other and the parties'
relative intent, knowledge, access to information and opportunity to
correct or prevent such statement or omission. The Company and the
Underwriters agree that it would not be just and equitable if contributions
pursuant to this subsection (d) were determined by pro rata allocation
(even if the Underwriters were treated as one entity for such purpose) or
by any other method of allocation which does not take account of the
equitable considerations referred to above in this subsection (d). The
amount paid or payable by an indemnified party as a result of the losses,
claims, damages or liabilities (or actions in respect thereof) referred to
above in this subsection (d) shall be deemed to include any legal or other
expenses reasonably incurred by such indemnified party in connection with
investigating or defending any such action or claim. Notwithstanding the
provisions of this subsection (d), no Underwriter shall be required to
contribute any amount in excess of the amount by which the total price at
which the Securities underwritten by it and distributed to the public were
offered to the public exceeds the amount of any damages which such
Underwriter has otherwise been required to pay by reason of such untrue or
alleged untrue statement or omission or alleged omission. No person guilty
of fraudulent misrepresentation (within the meaning of Section 11(f) of the
Act) shall be entitled to contribution from any person who was not guilty
of such fraudulent misrepresentation. The Underwriters' obligations in this
subsection (d) to contribute are several in proportion to their respective
underwriting obligations and not joint.
(e) The obligations of the Company under this Section 8 shall be in
addition to any liability which the Company may otherwise have and shall
extend, upon the same terms and conditions, to each person, if any, who
controls any Underwriter within the meaning of the Act; and the obligations
of the Underwriters under this Section 8 shall be in addition to any
liability which the respective Underwriters may
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otherwise have and shall extend, upon the same terms and conditions, to
each officer and director of the Company (including any person who, with
his or her consent, is named in the Registration Statement as about to
become a director of the Company) and to each person, if any, who controls
the Company within the meaning of the Act.
9. (a) If any Underwriter shall default in its obligation to purchase
the Securities which it has agreed to purchase hereunder at a Time of
Delivery, you may in your discretion arrange for you or another party or
other parties to purchase such Securities on the terms contained herein. If
within thirty-six hours after such default by any Underwriter you do not
arrange for the purchase of such Securities, then the Company shall be
entitled to a further period of thirty-six hours within which to procure
another party or other parties satisfactory to you to purchase such
Securities on such terms. In the event that, within the respective
prescribed periods, you notify the Company that you have so arranged for
the purchase of such Securities, or the Company notifies you that it has so
arranged for the purchase of such Securities, you or the Company shall have
the right to postpone such Time of Delivery for a period of not more than
seven days, in order to effect whatever changes may thereby be made
necessary in the Registration Statement or the Prospectus, or in any other
documents or arrangements, and the Company agrees to file promptly any
amendments to the Registration Statement or the Prospectus which in your
opinion may thereby be made necessary. The term "Underwriter" as used in
this Agreement shall include any person substituted under this Section with
like effect as if such person had originally been a party to this Agreement
with respect to such Securities.
(b) If, after giving effect to any arrangements for the purchase of
the Securities of a defaulting Underwriter or Underwriters by you and the
Company as provided in subsection (a) above, the aggregate principal amount
of such Securities which remains unpurchased does not exceed one-eleventh
of the aggregate principal amount of all of the Securities to be purchased
at such Time of Delivery, then the Company shall have the right to require
each non-defaulting Underwriter to purchase the principal amount of
Securities which such Underwriter agreed to purchase hereunder at such Time
of Delivery and, in addition, to require each non-defaulting Underwriter to
purchase its pro rata share (based on the principal amount of Securities
which such Underwriter agreed to purchase hereunder) of the Securities of
such defaulting Underwriter or Underwriters for which such arrangements
have not been made; but nothing herein shall relieve a defaulting
Underwriter from liability for its default.
(c) If, after giving effect to any arrangements for the purchase of
the Securities of a defaulting Underwriter or Underwriters by you and the
Company as provided in subsection (a) above, the aggregate principal amount
of such Securities which remains unpurchased exceeds one-eleventh of the
aggregate principal amount of all of the Securities to be purchased at such
Time of Delivery, or if the Company shall not exercise the right described
in subsection (b) above to require non-defaulting Underwriters to purchase
Securities of a defaulting Underwriter or Underwriters, then this Agreement
(or, with respect to the Second Time of Delivery, the obligations of the
Underwriters to purchase and of the Company to sell the Optional
Securities) shall thereupon terminate, without liability on the part of any
non-defaulting Underwriter or the Company, except for the expenses to be
borne by the Company and the Underwriters as provided in Section 6 hereof
and the indemnity and contribution agreements in Section 8 hereof; but
nothing herein shall relieve a defaulting Underwriter from liability for
its default.
10. The respective indemnities, agreements, representations, warranties and
other statements of the Company and the several Underwriters, as set forth in
this Agreement or made by or on behalf of them, respectively, pursuant to this
Agreement, shall remain in full force and effect, regardless of any
investigation (or any statement as to the results thereof) made by or on behalf
of any Underwriter or any controlling person of any Underwriter, or the Company,
or any officer or director or controlling person of the Company, and shall
survive delivery of and payment for the Securities.
11. If this Agreement shall be terminated pursuant to Section 9 hereof, the
Company shall not then be under any liability to any Underwriter except as
provided in Sections 6 and 8 hereof; but, if for any other reason any Securities
are not delivered by or on behalf of the Company as provided herein, the Company
will reimburse the
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Underwriters through you for all out-of-pocket expenses approved in writing by
you, including fees and disbursements of counsel, reasonably incurred by the
Underwriters in making preparations for the purchase, sale and delivery of the
Securities not so delivered, but the Company shall then be under no further
liability to any Underwriter in respect of the Securities not so delivered
except as provided in Sections 6 and 8 hereof.
12. All statements, requests, notices and agreements hereunder shall be in
writing, and if to the Underwriters shall be delivered or sent by mail, telex or
facsimile transmission to you as the Representatives in care of China
International Capital Corporation (Hong Kong) Limited at R4302, ▇▇/▇, ▇▇▇▇▇▇▇
▇▇▇▇▇, ▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇, facsimile: (▇▇▇) ▇▇▇▇-▇▇▇▇,
Attention: Legal Department; ▇▇▇▇▇▇▇ ▇▇▇▇▇ (Asia) L.L.C. at ▇▇/▇, ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇ ▇▇▇▇▇'▇ ▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇, facsimile: (▇▇▇) ▇▇▇▇-▇▇▇▇,
Attention: Legal Department; and ▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇
Incorporated, North Tower, World ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇
▇▇▇▇▇-▇▇▇▇, facsimile: (▇▇▇) ▇▇▇-▇▇▇▇, Attention: Registration Department; and
if to the Company shall be delivered or sent by mail, telex or facsimile
transmission to the address of the Company set forth in the Registration
Statement, Attention: Secretary; provided, however, that any notice to an
Underwriter pursuant to Section 8(c) hereof shall be delivered or sent by mail,
telex or facsimile transmission to such Underwriter at its address set forth in
its Underwriters' Questionnaire or telex constituting such Questionnaire, which
address will be supplied to the Company by you upon request. Any such
statements, requests, notices or agreements shall take effect upon receipt
thereof.
13. This Agreement shall be binding upon, and inure solely to the benefit
of, the Underwriters, the Company and, to the extent provided in Sections 8 and
10 hereof, the respective affiliates and agents of each Underwriter, the
officers and directors of the Company and each person who controls the Company
or any Underwriter, and their respective heirs, executors, administrators,
successors and assigns, and no other person shall acquire or have any right
under or by virtue of this Agreement. No purchaser of any of the Securities from
any Underwriter shall be deemed a successor or assign by reason merely of such
purchase.
14. Each of the parties hereto irrevocably (i) agrees that any legal suit,
action or proceeding arising out of or based upon this Agreement or the
transactions contemplated hereby may be instituted in any New York Court,
(ii) waives, to the fullest extent it may effectively do so, any objection which
it may now or hereafter have to the laying of venue of any such proceeding and
(iii) submits to the exclusive jurisdiction of such courts in any such suit,
action or proceeding. The Company irrevocably waives any immunity to
jurisdiction to which it may otherwise be entitled or become entitled (including
sovereign immunity, immunity to pre-judgment attachment, post-judgment
attachment and execution) in any legal suit, action or proceeding against it
arising out of or based on this Agreement or the transactions contemplated
hereby which is instituted in any New York Court or in any competent court in
Hong Kong or the PRC. The Company has appointed CT Corporation System,
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, as its authorized agent
(the "Authorized Agent") upon whom process may be served in any such action
arising out of or based on this Agreement or the transactions contemplated
hereby which may be instituted in any New York Court by any Underwriter or by
any person who controls any Underwriter, expressly consents to the jurisdiction
of any such court in respect of any such action, and waives any other
requirements of or objections to personal jurisdiction with respect thereto.
Such appointment shall be irrevocable. The Company represents and warrants that
the Authorized Agent has agreed to act as such agent for service of process, and
agrees to take any and all action, including the filing of any and all documents
and instruments, that may be necessary to continue such appointment in full
force and effect as aforesaid. Service of process upon the Authorized Agent and
written notice of such service to the Company shall be deemed, in every respect,
effective service of process upon the Company.
15. In respect of any judgment or order given or made for any amount due
hereunder that is expressed and paid in a currency (the "judgment currency")
other than United States dollars, the Company, will indemnify each Underwriter
against any loss incurred by such Underwriter as a result of any variation as
between (i) the rate of exchange at which the United States dollar amount is
converted into the judgment currency for the purpose of such judgment or order
and (ii) the rate of exchange at which an Underwriter is able to purchase United
States dollars with the amount of the judgment currency actually received by
such Underwriter. The foregoing indemnity shall constitute a separate and
independent obligation of the Company and shall continue in full force and
effect notwithstanding any such judgment or order as aforesaid. The term "rate
of exchange" shall include any premiums and costs of exchange payable in
connection with the purchase of or conversion into United States dollars.
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16. Time shall be of the essence of this Agreement. As used herein, the
term "business day" shall mean any day when the Commission's office in
Washington, D.C. is open for business.
17. This Agreement shall be governed by and construed in accordance with
the laws of the State of New York.
18. This Agreement may be executed by any one or more of the parties hereto
in any number of counterparts, each of which shall be deemed to be an original,
but all such counterparts shall together constitute one and the same instrument.
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If the foregoing is in accordance with your understanding, please sign and
return to us (one for the Company and for each of the Underwriters plus one for
each counsel) counterparts hereof, and upon the acceptance hereof by you, this
letter and such acceptance hereof shall constitute a binding agreement among
each of the Underwriters and the Company.
Very truly yours,
China Mobile (Hong Kong) Limited
By:
-------------------------------
Name: Wang Xiaochu
Title: Chairman and
Chief Executive Officer
Accepted as of the date hereof on behalf of each of the Underwriters by:
CHINA INTERNATIONAL CAPITAL CORPORATION LIMITED
By:
-------------------------------
Name:
Title:
▇▇▇▇▇▇▇ ▇▇▇▇▇ (ASIA) L.L.C.
By:
-------------------------------
Name:
Title:
▇▇▇▇▇▇▇ LYNCH, PIERCE, ▇▇▇▇▇▇ & ▇▇▇▇▇
INCORPORATED
By:
------------------------------
Name:
Title:
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SCHEDULE I
AGGREGATE PRINCIPAL
AMOUNT OF OPTIONAL
AGGREGATE PRINCIPAL SECURITIES TO BE
AMOUNT OF PURCHASED IF
FIRM SECURITIES MAXIMUM OPTION
UNDERWRITER TO BE PURCHASED EXERCISED
China International Capital Corporation Limited -- --
▇▇▇▇▇▇▇ Sachs (Asia) L.L.C. -- --
▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ -- --
Incorporated
Total -- --
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ANNEX I
FORM OF COMFORT LETTER
-38-
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ANNEX II(a)
DRAFT OPINION AND LETTER OF ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇
-▇▇-
▇▇
▇▇▇▇▇ ▇▇(▇)
DRAFT OPINION OF ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇
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ANNEX II(c)
DRAFT OPINION OF HAIWEN & PARTNERS
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