EXHIBIT 10.12
5th December, 2003
[NAME OF COMPANY IN CHINESE]
(CHINA LIFE INSURANCE COMPANY LIMITED)
[NAME OF COMPANY IN CHINESE]
(CHINA LIFE INSURANCE (GROUP) COMPANY)
THE JOINT GLOBAL COORDINATORS
(as defined herein)
THE JOINT SPONSORS
(as defined herein)
and
THE HONG KONG UNDERWRITERS
(as defined herein)
==============================
UNDERWRITING AGREEMENT
==============================
BAKER & McKENZIE
14th Floor, Hutchison House
10 Harcourt Road
Hong Kong
CONTENTS
SECTION PAGE
- ------- ----
SECTION I: INTERPRETATION......................................................3
1. Interpretation.........................................................3
SECTION II: CONDITIONS........................................................13
2. Conditions............................................................13
SECTION III: THE HONG KONG PUBLIC OFFERING, UNDERWRITING AND OTHER MATTERS....15
3. The Hong Kong Public Offering.........................................15
4. The Hong Kong Offering Documents......................................18
5. Underwriting..........................................................18
6. Payment under the Hong Kong Public Offering...........................21
SECTION IV: COMMISSION AND EXPENSES...........................................23
7. Commission and expenses...............................................23
SECTION V: STABILIZATION......................................................25
8. Stabilization.........................................................25
SECTION VI: REPRESENTATIONS, WARRANTIES AND UNDERTAKINGS......................26
9. Representations, warranties and undertakings relating
to the Company........................................................26
10. Rights in relation to the Warranties..................................26
SECTION VII: FURTHER UNDERTAKINGS.............................................29
11. Further undertakings..................................................29
SECTION VIII: TERMINATION.....................................................34
12. Termination...........................................................34
SECTION IX: INDEMNITY.........................................................37
13. Indemnity.............................................................37
i
SECTION X: GENERAL PROVISIONS.................................................40
14. Remedies, waivers and release.........................................40
15. Assignment............................................................40
16. Further assurance.....................................................40
17. Entire agreement......................................................41
18. Notices...............................................................41
19. Announcements.........................................................42
20. Time of essence.......................................................43
21. Invalidity............................................................43
22. Governing law.........................................................44
23. Jurisdiction and dispute resolution...................................44
24. Immunity..............................................................45
25. Judgment currency indemnity...........................................45
26. Counterparts..........................................................46
SCHEDULE 1 The Joint Global Coordinators....................................47
SCHEDULE 2 The Joint Sponsors...............................................48
SCHEDULE 3 The Hong Kong Underwriters.......................................49
SCHEDULE 4 The Warranties...................................................52
SCHEDULE 5 The Conditions precedent documents...............................75
SCHEDULE 6 Hong Kong Underwriters' set off arrangements.....................79
SCHEDULE 7 The Contingency Plan.............................................81
SIGNATURE PAGE................................................................87
ii
THIS AGREEMENT is made on 5th December, 2003
BETWEEN:
(1) [NAME OF COMPANY IN CHINESE] (CHINA LIFE INSURANCE COMPANY LIMITED) of
16 Chaowai Avenue, Chaoyang District, Beijing 100020, the People's
Republic of China (the "Company");
(2) [NAME OF COMPANY IN CHINESE] (CHINA LIFE INSURANCE (GROUP) COMPANY) of 5
Guanyingyuan Xiqu, Xicheng District, Beijing 100035, the People's
Republic of China (the "Selling Shareholder");
(3) THE JOINT GLOBAL COORDINATORS whose respective names and addresses are
set out in Schedule 1 (together, the "Joint Global Coordinators" and
individually, a "Joint Global Coordinator");
(4) THE JOINT SPONSORS whose respective names and addresses are set out in
Schedule 2 (together, the "Joint Sponsors" and individually, a "Joint
Sponsor"); and
(5) THE HONG KONG UNDERWRITERS whose respective names and addresses are set
out in Schedule 3 (together, the "Hong Kong Underwriters" and
individually, a "Hong Kong Underwriter").
WHEREAS:
(A) The Company has obtained the following approvals:
(i) the approval (Bao Jian Fu [2003] No.88) dated 16th May, 2003 of
China Insurance Regulatory Commission concerning the
Restructuring and listing of the Company;
(ii) the approval (Cai Qi [2003] No.77) dated 25th June, 2003 of the
Ministry of Finance of the PRC concerning relevant issues of
State owned equity shares administration; and
(iii) the approval (Bao Jian Fu [2003] No.190) dated 20th September,
2003 of China Insurance Regulatory Commission concerning the
conversion of the Company to an offshore fund-raising company.
and, having obtained such approvals, the Restructuring was implemented.
1
(B) On 30th June, 2003, a business licence (No. 1000001003796(4-2)) was
issued by the PRC State Administration for Industry and Commerce to the
Company, whereupon the Company was established.
(C) The Company submitted an application (together with all necessary
supporting documents) to the Registrar of Companies in Hong Kong to be
registered as an oversea company in Hong Kong under Part XI of the
Companies Ordinance and has been registered accordingly on 26th August,
2003.
(D) The Company obtained the approval (Zheng Jian Guo He Zi [2003] No. 35)
dated 3rd November, 2003 of the China Securities Regulatory Commission
authorising the Company to apply for the listing of the H Shares on the
Hong Kong Stock Exchange and the listing of the ADSs on the New York
Stock Exchange, Inc.
(E) As at the date of this Agreement, the Company has a share capital of
RMB20 billion, all of which are fully paid and owned by the Selling
Shareholder.
(F) At a meeting of the board of Directors held on 12th November, 2003,
resolutions were passed pursuant to which, inter alia, the Directors
were authorised to agree and sign on behalf of the Company this
Agreement and other relevant documents in connection with the Global
Offering. Written resolutions were passed by a committee of the board of
Directors on 5th December, 2003 pursuant to which all the other relevant
documents in connection with the Global Offering were approved.
(G) The Company has agreed to offer for subscription, and the Selling
Shareholder has agreed to offer for sale, the Offer Shares pursuant to
the Global Offering, with the Hong Kong Offer Shares being offered
pursuant to the Hong Kong Public Offering, the US Offer Shares being
offered pursuant to the US Offering and the International Offer Shares
being offered pursuant to the International Offering.
(H) The Company and the Selling Shareholder are expected to, respectively,
grant to the Joint Global Coordinators for and on behalf of the US
Underwriters and International Underwriters an Over-allotment Option to
require the Company to allot and issue and the Selling Shareholder to
sell up to an aggregate of 882,352,000 additional H Shares and
88,235,000 additional H Shares, respectively (either of which may be
deliverable in the form of a corresponding number of ADSs), solely to
cover over-allocations in connection with the US Offering and the
International Offering.
(I) The Company has appointed the Joint Sponsors to sponsor the Company
jointly in relation to the application to the Hong Kong Stock Exchange
for the granting of and permission to deal in the Offer Shares.
2
NOW IT IS AGREED as follows:
SECTION I: INTERPRETATION
1. INTERPRETATION
(A) In this Agreement (including the recitals and the Schedules), the
following expressions shall, unless the context otherwise requires, have
the following meanings:
"Acceptance Date" 11th December, 2003 being the date on
which the application lists for the
Hong Kong Offer Shares will close as
stated in the section headed "How to
apply for Hong Kong Offer Shares" in
the Prospectus (or such other later
date as such application lists may
close as stated in the Prospectus and
the Application Forms);
"Accounts Date" 30th June, 2003;
"Actuarial Consultants" Tillinghast-Towers Perrin;
"ADSs" American depositary shares issued by JP
Morgan Chase Bank each representing
ownership of 40 H Shares, which are to
be listed on the New York Stock
Exchange, Inc.;
"affiliate" in relation to a particular company,
any company or other entity which is
its holding company or subsidiary, or
any subsidiary of its holding company
or which directly, or indirectly
through one or more intermediaries,
controls or is controlled by, or is
under common control with, the company
specified. For the purpose of this
definition the term "control"
(including the terms "controlling",
"controlled by" and "under common
control with") means the possession,
direct or indirect, of the power to
direct or cause the direction of the
management and policies of a person,
whether through the ownership of voting
securities, by contract, or otherwise;
"Agreement Among Hong Kong the agreement to be entered into
Underwriters" between the Joint Global Coordinators,
the Joint Sponsors and the Hong Kong
Underwriters at the date hereof;
3
"AMC" [NAME OF COMPANY IN CHINESE] (China
Life Asset Management Company Limited),
a joint venture company established by
the Company and CLIC on 23rd November,
2003;
"Application Forms" the white and yellow application forms
for the Hong Kong Offer Shares each in
the agreed form to be issued by the
Company with the Prospectus;
"Approval" any consent, approval, authorisation,
sanction, permission, order, franchise,
registration, filing, clearance,
qualification, licence, permit,
certificate or declaration;
"Business Day" any day on which licensed banks
generally are open for business in Hong
Kong (excluding a Saturday for the
purpose of this definition);
"CCASS" the Central Clearing and Settlement
System established and operated by
Hongkong Clearing;
"Claw Back Shares" the US Offer Shares and the
International Offer Shares (excluding
the Corporate Placing Shares) withdrawn
from the US Offering or the
International Offering (as the case may
be) and made available as an additional
part of the Hong Kong Offer Shares for
subscription or purchase pursuant to
the Hong Kong Public Offering pursuant
to clause 3(G) and as described in the
Prospectus;
"Closing" the time when payment is to be made
under clause 6, after the Conditions
have been fulfilled or waived in
accordance with this Agreement, which
is expected to be 8:00 a.m. on 18th
December, 2003 or otherwise as agreed
between the Company, the Selling
Shareholder and the Joint Global
Coordinators (on behalf of the Hong
Kong Underwriters);
"Companies Ordinance" the Companies Ordinance (Chapter 32 of
the Laws of Hong Kong), as amended;
"Company Accounts" the audited financial statements of the
Group for each of the financial years
ended 31st December 2000, 2001 and 2002
and for the 6 months ended 30th June,
2003;
4
"Company Pro Forma Financial the unaudited pro forma financial
Statements" statements of the Group for the year
ended 31st December, 2002, for each of
the 6 months ended 30th June, 2002 and
2003 and as of 30th June, 2003;
"Conditions" the conditions set out in clause 2(A);
"Contingency Plan" the contingency plan substantially in
the form as set out in Schedule 7;
"Corporate Investors" Mitcham Resources Limited (a indirect
wholly-owned subsidiary of Cheung Kong
(Holdings) Limited), Hutchison
International Limited (a wholly-owned
subsidiary of Hutchison Whampoa
Limited), Richbo Investment Limited (an
indirect wholly-owned subsidiary of
Henderson Development Limited), and
Chow Tai Fook Nominee Limited (a
company indirectly controlled by Chow
Tai Fook Enterprises Limited), each a
"Corporate Investor";
"Corporate Placing" the placing of an aggregate of such
maximum number of H Shares (or ADSs at
the discretion of the relevant
Corporate Investor) as may be purchased
with US$500 million at the price stated
in the International Underwriting
Agreement to the Corporate Investors as
part of the International Offering as
further described in the section headed
"Structure of the Global Offering" in
the Prospectus;
"Corporate Placing Agreement" each corporate placing agreement dated
5th December, 2003 among the Company,
the Joint Global Coordinators and each
relevant Corporate Investor setting out
the terms and conditions subject to
which such Corporate Investor is to
subscribe for Corporate Placing Shares
under the Corporate Placing;
"Corporate Placing Shares" the H Shares (or ADSs at the discretion
of the Joint Global Coordinators acting
on the instructions of the relevant
Corporate Investor) to be placed with
the Corporate Investors pursuant to the
Corporate Placing;
"Director(s)" the director(s) of the Company;
5
"Formal Notice" the formal notice substantially in the
agreed form required under Rule 12.02,
Chapter 12 of the Hong Kong Listing
Rules to be published in connection
with the Hong Kong Public Offering in
the newspapers;
"Global Offering" the Hong Kong Public Offering, the US
Offering and the International
Offering;
"Governmental Authority" any public, regulatory or governmental
agency or authority (including, without
limitation, the Hong Kong Stock
Exchange, the SFC and the SEC), other
authority and any court at the
national, provincial, municipal or
local level;
"Group" the Company and any of its subsidiaries
from time to time;
"H Shares" overseas listed foreign invested shares
of par value RMB1.00 each in the share
capital of the Company to be traded in
Hong Kong dollars and for which
applications have been made for the
grant of the listing and permission to
deal on the Hong Kong Stock Exchange;
"HK dollars" and "HK$" Hong Kong dollars, the lawful currency
of Hong Kong;
"holding company" has the meaning ascribed thereto in
section 2 of the Companies Ordinance;
"Hongkong Clearing" Hong Kong Securities Clearing Company
Limited;
"Hong Kong" Hong Kong Special Administrative Region
of the PRC;
"Hong Kong Listing Rules" the Rules Governing the Listing of
Securities on The Stock Exchange of
Hong Kong Limited;
"Hong Kong Offer Shares" the Initial Hong Kong Offer Shares (i)
together with, where applicable, the
Claw Back Shares, or (ii) as may be
adjusted pursuant to clause 5(G);
"Hong Kong Offering Documents" the Prospectus and the Application
Forms;
6
"Hong Kong Price Determination the letter agreement to be entered into
Agreement" between the Joint Global Coordinators,
on behalf of the Hong Kong
Underwriters, the Company and the
Selling Shareholder immediately
following the determination of the
Offer Price in accordance with clause
3(F) to record the price so determined;
"Hong Kong Public Offering" the offering of the Hong Kong Offer
Shares in Hong Kong on and subject to
the terms and conditions set out in the
Hong Kong Offering Documents;
"Hong Kong Stock Exchange" The Stock Exchange of Hong Kong
Limited;
"Initial Hong Kong Offer the 323,529,000 H Shares being
Shares" initially offered for subscription by
the Company and sale by the Selling
Shareholder in the Offer Ratio pursuant
to the Hong Kong Public Offering and
excluding any Claw Back Shares or any
adjustment made pursuant to clause
5(G);
"International Offer Shares" the ADSs (or H Shares as the case may
be) initially offered by the Company
and the Selling Shareholder pursuant to
the International Offering subject to
the provisions of clauses 3(G) and 5(G)
and the Over-allotment Option;
"International Offering" the offering of ADSs or (at the option
of investors) H Shares outside the
United States and Canada (including to
professional and institutional
investors within Hong Kong) and which
includes the Corporate Placing and a
public offering without listing in
Japan;
"International Underwriters" the group of underwriters which is
expected to enter into the
International Underwriting Agreement to
underwrite the International Offering;
"International Underwriting the underwriting agreement relating to
Agreement" the US Offering and the International
Offering expected to be entered into
between the Company, the Selling
Shareholder, the Joint Global
Coordinators, the US Underwriters and
the International Underwriters on or
following the Price Determination Date;
7
"Intersyndicate Agreement" the agreement to be entered into
between the Joint Global Coordinators,
the representative of the Hong Kong
Underwriters and the representatives of
the US Underwriters and the
International Underwriters;
"Investment Company Act" the US Investment Company Act of 1940,
as amended;
"Law" any law, rule, regulation, guideline,
opinion, notice, circular, order,
judgment, decree or ruling of any
Governmental Authority;
"Listing Committee" the Listing Committee of the Hong Kong
Stock Exchange;
"Nominee" HSBC Nominees (Hong Kong) Limited, in
whose name the application moneys are
to be held by the Receiving Bankers
under the Receiving Bankers'
Agreements;
"Offer Price" the price per H Share for the Hong Kong
Offer Shares as fixed in accordance
with the provisions of clause 3(F);
"Offer Ratio" the ratio between the number of H
Shares being initially offered for
subscription by the Company and the
number of H Shares being initially
offered for sale by the Selling
Shareholder under the Hong Kong Public
Offering, which ratio is expected to be
91:9;
"Offer Shares" the 5,882,353,000 H Shares and
588,235,000 H Shares (which, in the
case of the US Offering and the
International Offering, are represented
by ADSs unless otherwise requested by
the Joint Global Coordinators
exercising their discretion pursuant to
the International Underwriting
Agreement) respectively being initially
offered for subscription (by the
Company) and sale (by the Selling
Shareholder) pursuant to the Global
Offering together with any further H
Shares (which, in some cases, may be
represented by ADSs) allotted and sold
pursuant to the exercise of the
Over-allotment Option;
8
"Over-allotment Option" the options expected to be granted by
the Company and the Selling Shareholder
to the US Underwriters and the
International Underwriters exercisable
by the Joint Global Coordinators on
behalf of the US Underwriters and the
International Underwriters under the
International Underwriting Agreement to
require the Company to allot and issue
up to an aggregate of 882,352,000
additional H Shares and the Selling
Shareholder to sell up to an aggregate
of 88,235,000 additional H Shares
(which may in each case be deliverable
in the form of ADSs) solely to cover
over-allocations in connection with the
US Offering and the International
Offering;
"PRC" the People's Republic of China, which,
for the purpose of this Agreement,
excludes Hong Kong, Macau Special
Administrative Region of the PRC and
Taiwan;
"Price Determination Date" the date on which the Offer Price is
determined in accordance with the
provisions of clause 3(F), which is
expected to be on or about 11th
December, 2003;
"Proceedings" any suit, action or proceeding arising
out of or in connection with this
Agreement;
"Prospectus" the prospectus to be issued by the
Company in connection with the Hong
Kong Public Offering substantially in
the agreed form;
"Prospectus Date" 8th December, 2003;
"Receiving Bankers" The Hongkong and Shanghai Banking
Corporation Limited, Bank of China
(Hong Kong) Limited and The Bank of
East Asia, Limited, the banks appointed
to hold the application moneys received
in connection with the Hong Kong Public
Offering pursuant to the Receiving
Bankers' Agreements;
"Receiving Bankers' Agreements" the agreements appointing the Receiving
Bankers in the agreed form;
"Registrar's Agreement" the agreement between the Share
Registrar and the Company in the agreed
form;
"Renminbi" and "RMB" Renminbi, the lawful currency of the
PRC;
9
"Reporting Accountants" PricewaterhouseCoopers;
"Restructuring" has the meaning ascribed thereto in the
Prospectus;
"SEC" the US Securities and Exchange
Commission;
"Securities Act" the US Securities Act of 1933, as
amended;
"SFC" the Securities and Futures Commission
of Hong Kong;
"Share Registrar" Computershare Hong Kong Investor
Services Limited;
"subsidiary" has the meaning ascribed to it in the
Companies Ordinance;
"Taxation" all forms of taxation whether in Hong
Kong or elsewhere in the world wherever
imposed and all statutory,
governmental, state, provincial, local
governmental or municipal impositions,
duties and levies and all penalties,
charges, costs and interest relating
thereto;
"transaction" any transaction, act, event, omission
or circumstance existing of whatever
nature;
"Under-Subscription" has the meaning given to it under
clause 5(A);
"Underwriters" the Hong Kong Underwriters, the US
Underwriters and the International
Underwriters;
"United States" and "US" the United States of America, its
territories, its possessions, any State
of the United States of America and the
District of Columbia;
"US dollar" and "US$" United States dollar, the lawful
currency of the United States;
"US Offer Shares" the ADSs (or H Shares as the case may
be) initially offered by the Company
and the Selling Shareholder pursuant to
the US Offering subject to the
provisions of clauses 3(G) and 5(G) and
the Over-allotment Option;
"US Offering" the offering of ADSs or (at the option
of investors) H Shares in the US and
Canada;
10
"US Underwriters" the group of underwriters which is
expected to enter into the
International Underwriting Agreement to
underwrite the US Offering;
"Valid Applications" applications under the Hong Kong Public
Offering from persons made before the
closing of the application lists (a) by
giving electronic application
instructions to Hongkong Clearing (i)
which have been duly submitted and are
otherwise in accordance with the terms
and conditions of the Hong Kong
Offering Documents and (ii) the debit
from such person's Designated Bank
Account (as defined in the General
Rules of CCASS) to effect such
instructions has been accepted by the
relevant bank when first requested or
(b) on Application Forms which (i) have
been duly completed and submitted and
are otherwise in accordance with the
terms and conditions of the Hong Kong
Offering Documents and (ii) are
accompanied by cheques or banker's
cashier orders for the full amount
payable on application which are
honoured on first presentation (or, and
without prejudice to the provisions of
clauses 5(A) and 5(E), if practicable
in the circumstances and requested by
the Joint Global Coordinators (for
themselves and on behalf of the Hong
Kong Underwriters) or the Company, on
further presentation) and subject to
the provisions of clauses 3(D) and
3(E);
"Verification Notes" the verification notes in respect of
the Prospectus prepared by Baker &
McKenzie dated 5th December, 2003
(signed copies of which have been or
will be delivered to the Joint
Sponsors); and
"Warranties" the representations, warranties and
undertakings in Schedule 4 and given or
made, or deemed to be given or made,
pursuant to clause 9 and "Warranty"
shall be construed accordingly.
(B) In this Agreement, unless otherwise specified:
(i) references to recitals, clauses, sub-clauses, paragraphs and
Schedules are to recitals, clauses, sub-clauses, paragraphs of,
and schedules to, this Agreement;
(ii) a reference to any ordinance, statute or statutory provision
shall be construed as a reference to the same as it may have
been, or may from time to time be, amended, modified or
re-enacted;
11
(iii) references to a "company" shall be construed so as to include
any company, corporation or other body corporate, whenever and
however incorporated or established;
(iv) references to a "person" shall be construed so as to include any
individual, firm, company, government, state or agency of a
state or any joint venture, association or partnership (whether
or not having separate legal personality);
(v) references to writing shall include any mode of reproducing
words in a legible and non-transitory form;
(vi) unless otherwise specified, references to dates are to Hong Kong
dates and references to times of the day are to Hong Kong time;
(vii) all headings to clauses, sections and Schedules are for
convenience only and do not affect the interpretation of this
Agreement;
(viii) all words denoting the singular shall include the plural and
vice versa;
(ix) references to the "closing of the application lists" shall be
construed in accordance with clause 3(D);
(x) the Schedules form part of this Agreement and shall have the
same force and effect as if expressly set out in the body of
this Agreement, and any reference to this Agreement shall
include the Schedules; and
(xi) a reference to a document being "in the agreed form" means such
document in a form agreed and initialled for the purpose of
identification by Baker & McKenzie and Allen & Overy.
12
SECTION II: CONDITIONS
2. CONDITIONS
(A) The obligations of the Hong Kong Underwriters under this Agreement are
conditional upon:
(i) the Joint Global Coordinators, on behalf of the Hong Kong
Underwriters, receiving the documents listed in Schedule 5, Part
A on or before the day immediately preceding the Prospectus
Date, and the documents listed in Schedule 5, Part B not later
than the time of the delivery of the "whole world" comfort
letter covering the Global Offering outside Hong Kong as
required under the International Underwriting Agreement, and the
documents listed in Schedule 5, Part C not later than 5:00 p.m.
on the Business Day before the Closing, in each case, in form
and content satisfactory to the Joint Global Coordinators;
(ii) the lodging of the Prospectus (and other required documents)
with the Hong Kong Stock Exchange, and the Hong Kong Stock
Exchange issuing a certificate pursuant to section 342C(5) of
the Companies Ordinance certifying that it authorises
registration of the Prospectus on or before the day immediately
preceding the Prospectus Date;
(iii) the lodging of one copy of the Prospectus duly certified by two
Directors (or by their agents duly authorised in writing) as
having been approved by the resolutions of the board of
Directors and having all the documents required by the
provisions of section 342C of the Companies Ordinance to be
endorsed thereon or attached thereto with the Registrar of
Companies in Hong Kong on or before the day immediately
preceding the Prospectus Date, and the Registrar of Companies in
Hong Kong registering the same on or before the day immediately
preceding the Prospectus Date;
(iv) listing of and permission to deal in all the Offer Shares being
granted (subject only to allotment) by the Listing Committee in
principle on or before the Price Determination Date and dealings
in the Offer Shares being allowed by the Hong Kong Stock
Exchange to commence on the Hong Kong Stock Exchange on or
before 18th December, 2003 (or such later date as the Company
and the Joint Global Coordinators on behalf of the Hong Kong
Underwriters may agree) (and such listing and permission not
subsequently being revoked prior to the time and date detailed
in clause 12(A));
(v) (a) the execution and delivery of the International
Underwriting Agreement on the Price Determination Date;
and
(b) the International Underwriting Agreement becoming
unconditional in accordance with its terms (other than
any
13
condition for this Agreement to become unconditional)
and not having been terminated in accordance with its
terms or otherwise, prior to 8:00 a.m. on the morning on
which dealing is scheduled to commence in the Offer
Shares on the Hong Kong Stock Exchange; and
(v) the Offer Price having been fixed on the Price Determination
Date in accordance with the provisions of clause 3(F) and the
Hong Kong Price Determination Agreement having been executed by
the Company, the Selling Shareholder and the Joint Global
Coordinators (on behalf of the Hong Kong Underwriters).
(B) Each of the Company and the Selling Shareholder undertakes to use its
best endeavours to procure the fulfilment of the conditions set out in
clause 2(A) and in particular shall furnish such information, supply
such documents, pay such fees, give such undertakings and do all such
acts and things as may be reasonably required by the Joint Global
Coordinators (on behalf of the Hong Kong Underwriters), the Hong Kong
Stock Exchange, the SFC and the Registrar of Companies in Hong Kong in
connection with the application for the listing of and permission to
deal in the Offer Shares and the fulfilment of such conditions.
(C) The Joint Global Coordinators, for themselves and on behalf of the Hong
Kong Underwriters, may, at any time, waive any or all of the Conditions
or extend the deadline for the fulfilment of such Conditions by such
number of days or in such manner as they may in their absolute
discretion determine.
(D) In the event that any of the Conditions is not fulfilled or waived, or
in the event that the Price Determination Date shall not occur, on or
prior to 7th January, 2004, this Agreement shall terminate with
immediate effect and the provisions of clause 12(B) shall apply.
14
SECTION III: THE HONG KONG PUBLIC OFFERING,
UNDERWRITING AND OTHER MATTERS
3. THE HONG KONG PUBLIC OFFERING
(A) The Company and the Selling Shareholder will in accordance with the
Offer Ratio offer the Hong Kong Offer Shares for subscription or
purchase by the public in Hong Kong at a price not to exceed the maximum
offer price of HK$3.61 per H Share as stated in the Hong Kong Offering
Documents, payable in full on application in Hong Kong dollars together
with relevant brokerage, SFC transaction levy, investor compensation
levy and Hong Kong Stock Exchange trading fee on and subject to the
terms and conditions set out in the Hong Kong Offering Documents and
this Agreement.
(B) The Company and the Selling Shareholder hereby appoint, to the exclusion
of all others, the Joint Global Coordinators to act as joint global
coordinators and joint global bookrunners of the Global Offering, and,
relying on the representations, warranties and undertakings herein
contained and subject as hereafter mentioned, the Joint Global
Coordinators respectively accept such appointments.
The Company and the Selling Shareholder hereby appoint the Hong Kong
Underwriters on the terms and subject to the conditions of this
Agreement, and to the exclusion of all others, as underwriters of the
Hong Kong Public Offering and, as agents of the Company and the Selling
Shareholder, to assist the Company and the Selling Shareholder to
procure applications for the Hong Kong Offer Shares under and in
connection with the Hong Kong Public Offering. On and subject to the
terms and conditions of this Agreement, and relying on the
representations, warranties and undertakings herein contained and
subject as hereafter mentioned, the Hong Kong Underwriters respectively
accept such appointments.
The Company and the Selling Shareholder hereby confirm that the
foregoing appointments confer on the respective Joint Global
Coordinators and, as the case may be, the respective Hong Kong
Underwriters all powers, authorities and discretions on behalf of the
Company and the Selling Shareholder contemplated by this Agreement or
the Hong Kong Offering Documents or which are otherwise necessary for,
or reasonably incidental to, such appointments and/or the lawful making
of the Hong Kong Public Offering and/or the application for listing of
and permission to deal in the Offer Shares on the Hong Kong Stock
Exchange, and hereby agree to ratify and confirm everything which any
Joint Global Coordinator or, as the case may be, any Hong Kong
Underwriter shall lawfully do in the exercise of any such appointments,
powers, authorities and discretions.
Each such appointment is made on the basis, and on terms, that each
appointee is irrevocably authorised to delegate all or any of its
relevant rights, duties, powers and discretions in such manner and on
such terms as it thinks fit (with or without formality and without prior
notice of any such delegation being required to be given to the Company
or the Selling Shareholder) to any one or more of its
15
affiliates. Each of the above-named appointees shall remain liable for
all acts and omissions of any of its affiliates to which it delegates
relevant rights, duties, powers and/or discretions pursuant to this
clause notwithstanding any such delegation.
(C) The Company will, subject to registration of the Prospectus in
accordance with clause 2(A)(iii), cause the Formal Notice to be
published in the newspapers and on the date(s) as the Company may agree.
The Company will cause such number of copies of the Prospectus together
with Application Forms as the Joint Global Coordinators (on behalf of
the Hong Kong Underwriters) may reasonably request to be delivered to
the Joint Global Coordinators or as the Joint Global Coordinators (on
behalf of the Hong Kong Underwriters) may direct for the purpose of
issuing the same generally.
(D) The application lists for the Hong Kong Offer Shares will, subject as
mentioned below, open at 11:45 a.m. on the Acceptance Date and will
close at 12:00 noon on the same day. In the event of a tropical cyclone
warning signal No. 8 or above or a "black" rainstorm warning signal (in
any such case, a "signal") being in force in Hong Kong at any time
between 8:00 a.m. and 12:00 noon on the Acceptance Date then the
application lists will open at 11:45 a.m. and close at 12:00 noon on the
next Business Day on which no signal remains in force at any time
between 8:00 a.m. and 12:00 noon and all references in this Agreement to
the closing of the application lists shall be construed accordingly.
(E) The Company and the Selling Shareholder agree that the Joint Global
Coordinators shall, in consultation with the Company and the Selling
Shareholder, have the sole and exclusive right, on and subject to the
terms and conditions set out in the Hong Kong Offering Documents and
this Agreement, to accept or reject (in whole or in part) any
applications for Hong Kong Offer Shares (including, where the number of
Hong Kong Offer Shares being applied for exceeds the total number of the
Hong Kong Offer Shares, the right to determine the basis of allocation
of the Hong Kong Offer Shares).
(F) The Offer Price will be based on the Hong Kong dollar equivalent of the
US dollar price at which ADSs are to be offered in the US Offering and
the International Offering. The price of such ADSs will be as stated in
the International Underwriting Agreement. The Offer Price will be
determined on the Price Determination Date as that amount which, when
increased by 1 per cent. brokerage, 0.005 per cent. SFC transaction
levy, 0.002 per cent. investor compensation levy and 0.005 per cent.
Hong Kong Stock Exchange trading fee thereon, is (subject to any
necessary rounding) equal to the US dollar price per ADS (i) converted
into Hong Kong dollars at the average of the bid and offered exchange
rates quoted by The Hongkong and Shanghai Banking Corporation Limited at
the close of business on the second Business Day prior to the Price
Determination Date and (ii) divided by 40 (being the number of Offer
Shares represented by each ADS) Provided that the Offer Price shall be
not more than HK$3.61. In respect of the Global Offering, only the
applicants in the Hong Kong Public Offering are required to pay the
aforesaid brokerage, transaction levy, investor compensation levy and
trading fee. The transaction levy, investor compensation levy and
trading fee otherwise payable by investors in the US
16
Offering and the International Offering in respect of the Offer Shares
purchased by them shall be paid by the Company and the Selling
Shareholder in the Offer Ratio. The Offer Price shall upon its
determination be recorded in the Hong Kong Price Determination Agreement
to be executed at such time.
(G) In the event that Valid Applications are received pursuant to the Hong
Kong Public Offering in respect of (i) 15 times or more but less than 50
times or (ii) 50 times or more but less than 100 times or (iii) 100
times or more the aggregate number of the Initial Hong Kong Offer
Shares, then the total number of Hong Kong Offer Shares available under
the Hong Kong Public Offering will be increased to 485,294,000,
647,059,000 and 1,294,118,000 H Shares, respectively, representing
approximately 7.5 per cent. (in the case of (i)) or 10 per cent. (in the
case of (ii)) or 20 per cent. (in the case of (iii)) respectively, of
the total number of H Shares initially available under the Global
Offering (before any exercise of the Over-allotment Option). In such
case, the number of H Shares allocated in the US Offering and/or the
International Offering shall be correspondingly reduced, in such manner
as the Joint Global Coordinators deem appropriate, and such additional H
Shares, which shall be made up of H Shares to be offered by the Company
and H Shares to be offered by the Selling Shareholder in the Offer Ratio
(subject to any necessary rounding), will be allocated to the Hong Kong
Public Offering for subscription or purchase at the Offer Price. The
Corporate Placing Shares shall not be affected by such reallocation. For
the avoidance of doubt, the Over-allotment Option is granted by the
Company and the Selling Shareholder to the US Underwriters and the
International Underwriters only, and not to the Hong Kong Underwriters.
(H) The total number of the Initial Hong Kong Offer Shares (after taking
into account any reallocation pursuant to clause 3(G)) shall be divided
into two pools for allocation purposes: pool A comprising not less than
161,765,000 H Shares and pool B comprising not less than 161,764,000 H
Shares. The H Shares in pool A will be allocated by the Joint Global
Coordinators in their discretion on an equitable basis to applicants who
have applied for H Shares with an aggregate subscription or purchase
price of HK$5 million (excluding the brokerage, transaction levy,
investor compensation levy and trading fee payable) or less per
applicant. The H Shares in pool B will be allocated by the Joint Global
Coordinators in their discretion on an equitable basis to applicants who
have applied for H Shares with an aggregate subscription or purchase
price of more than HK$5 million (excluding the brokerage, transaction
levy, investor compensation levy and trading fee payable) per applicant.
The Joint Global Coordinators shall determine the allocation ratio for
the two pools described above subject to the provisions relevant thereto
set out in the section headed "Structure of the Global Offering" in the
Prospectus.
(I) The Company and the Selling Shareholder will prior to the Prospectus
Date appoint the Receiving Bankers to act as receiving bankers in
connection with the receiving of completed applications for Hong Kong
Offer Shares and the Nominee in connection with the receiving and
holding of application moneys and any interest accruing thereon, in both
cases, on and subject to the terms and conditions of the Receiving
Bankers' Agreements.
17
(J) The Company and the Selling Shareholder will prior to the Prospectus
Date appoint the Share Registrar to provide services in connection with
the processing of applications under the Hong Kong Public Offering on
and subject to the terms and conditions of the Registrar's Agreement.
(K) The arrangements provided for in the Receiving Bankers' Agreements and
the Registrar's Agreement may be varied and/or supplemented in case of
unexpectedly high volume of applications under the Hong Kong Public
Offering as provided for in the Contingency Plan.
(L) Without prejudice to the foregoing obligations, each of the Company and
the Selling Shareholder undertakes with the Hong Kong Underwriters that
it will do all such other acts and things as may reasonably be required
by the Joint Global Coordinators for the purpose of the Global Offering
and obtaining listing of and permission to deal in the Offer Shares on
the Hong Kong Stock Exchange (including in particular effecting all
necessary registrations and filings with the Hong Kong Stock Exchange,
the SFC and the Registrar of Companies in Hong Kong and taking all
reasonable steps to ensure that each of the Directors will sign or cause
to be duly signed on their behalf all documents (including the
Verification Notes) required to be signed by them as directors of the
Company for the purpose of or in connection with any such registrations
and filings and the obtaining of listing of and permission to deal in
the Offer Shares on the Hong Kong Stock Exchange) and that it will
comply with all requirements so as to enable the listing of and
permission to deal in the Offer Shares to commence on 18th December,
2003 to be granted by the Listing Committee and to enable such listing
to be maintained.
4. THE HONG KONG OFFERING DOCUMENTS
(A) Subject to the Prospectus having been registered by the Registrar of
Companies in Hong Kong, the Company will, on the Prospectus Date, issue
the Hong Kong Offering Documents.
(B) Except for the Hong Kong Offering Documents or except as otherwise
provided pursuant to the provisions of this Agreement or as required by
the Hong Kong Stock Exchange or the New York Stock Exchange, Inc., each
of the Company and the Selling Shareholder respectively undertakes not,
without the prior written approval of the Joint Global Coordinators, to
issue, publish, distribute or otherwise make available any document
(including any prospectus), material or information in connection with
the Hong Kong Public Offering.
5. UNDERWRITING
(A) On and subject to the terms and conditions of this Agreement and in
reliance upon the Warranties, if and to the extent that, by 12:00 noon
on the Acceptance Date, there shall remain any Initial Hong Kong Offer
Shares for which Valid Applications, as subsequently calculated, have
not been received (an "Under-Subscription"), the Hong Kong Underwriters
shall, subject as set out in clause 5(G) apply or procure applications
for the Hong Kong Offer Shares representing
18
the shortfall at the Offer Price in accordance with the terms and
conditions set out in the Hong Kong Offering Documents (other than as to
the deadline for making the application and save as provided in this
clause 5) and shall pay or procure to be paid, in accordance with
sub-clause 5(F)(ii) the full amount payable on application Provided that
the obligations of the Hong Kong Underwriters in respect of Hong Kong
Offer Shares under this clause shall be several (and not joint and
several) on the basis that each Hong Kong Underwriter shall, subject to
clause 5(I), apply or procure applications for the number of Hong Kong
Offer Shares to which this clause applies in the proportions set out
against its name in the column headed "Percentage of Hong Kong Public
Offering Underwritten" in Schedule 3.
(B) None of the Hong Kong Underwriters will be liable for any failure on the
part of any of the other Hong Kong Underwriters to perform its
obligations under this clause 5. Notwithstanding the foregoing, each of
the Hong Kong Underwriters shall be entitled to enforce any or all of
its rights under this Agreement either alone or jointly with the other
Hong Kong Underwriters.
(C) Each of the Company and the Selling Shareholder agrees with the Hong
Kong Underwriters that all Valid Applications received prior to the
closing of the application lists and accepted by the Joint Global
Coordinators, either in whole or in part, will be accepted by the
Company and the Selling Shareholder before calling upon the Hong Kong
Underwriters or any of them to perform the obligations imposed on them
by this clause 5.
(D) Following the closing of the application lists, the Company and the
Selling Shareholder will, in conjunction with the Receiving Bankers,
calculate and notify the Joint Global Coordinators of the number of Hong
Kong Offer Shares for which duly completed Application Forms have been
received and will procure that the applications will be processed, and
such calculation made, as soon as practicable after the closing of the
application lists.
(E) In the event of an Under-Subscription, the Company and the Selling
Shareholder will procure that the Share Registrar and/or the Receiving
Bankers will as soon as possible and in any event (i) not later than
5:00 p.m. on the Acceptance Date notify the Joint Global Coordinators on
behalf of the Hong Kong Underwriters their best estimate of the number
of Hong Kong Offer Shares that may fall to be taken up pursuant to
clause 5(A) and (ii) not later than 5:00 p.m. on the first day after the
Acceptance Date notify the Joint Global Coordinators on behalf of the
Hong Kong Underwriters of the number of Hong Kong Offer Shares falling
to be taken up pursuant to clause 5(A).
(F) Subject to clause 5(G), as soon as practicable, and in any event not
later than 2:00 p.m. on the second Business Day immediately after the
date on which any notification is made under sub-clause 5(E)(ii) and
subject to the Conditions having been fulfilled (or waived), each of the
Hong Kong Underwriters will severally:
(i) deliver to the Receiving Bankers duly completed Application
Form(s) for such number of Hong Kong Offer Shares as fall to be
taken up by it
19
pursuant to clause 5(A), specifying the name(s) and address(es)
of the applicant(s) and the number of Hong Kong Offer Shares to
be allocated to each such applicant; and
(ii) pay, or procure to be paid, to the Receiving Bankers for the
account of the Nominee the aggregate amount of the Offer Price
(together with all brokerage, transaction levy, investor
compensation levy and Hong Kong Stock Exchange trading fee
payable by an applicant under the Hong Kong Public Offering) for
the Hong Kong Offer Shares as fall to be taken up by it pursuant
to clause 5(A) (subject to the sub-paragraphs below) Provided
that while such payments may be made through any Joint Global
Coordinator at its discretion and without obligation, any Joint
Global Coordinator shall not be responsible for the failure by
any Hong Kong Underwriter (apart from itself in its capacity as
a Hong Kong Underwriter) to make such payment. The net
subscription or purchase price payable by the Hong Kong
Underwriters for the Hong Kong Offer Shares as fall to be taken
up by them above shall be paid to the Company or, as the case
may be, the Selling Shareholder after deduction of:
(a) the underwriting commission of 3.5 per cent. payable
pursuant to clause 7(A);
(b) the aggregate SFC transaction levy (at the rate of 0.01
per cent. of the Offer Price), the aggregate investor
compensation levy (at the rate of 0.004 per cent. of the
Offer Price) and the aggregate Hong Kong Stock Exchange
trading fee (at the rate of 0.01 per cent. of the Offer
Price) payable by the Company or, as the case may be,
the Selling Shareholder and the applicants to the Hong
Kong Stock Exchange in respect of such Hong Kong Offer
Shares, which will be arranged to be paid to the Hong
Kong Stock Exchange by the Joint Global Coordinators on
behalf of the Company or, as the case may be, the
Selling Shareholder and the applicants; and
(c) brokerage at the rate of 1 per cent. of the Offer Price
which may be retained by the Hong Kong Underwriters.
The Company and the Selling Shareholder shall procure that certificates
representing the above Hong Kong Offer Shares shall be made available to
Hongkong Clearing for checking at or before 12:00 noon on the Business
Day before the date of Closing.
(G) If an Under-Subscription shall occur, the Joint Global Coordinators
shall have the right (but are not obliged) to reallocate to the US
Offering and/or International Offering (in such proportion as the Joint
Global Coordinators consider appropriate) all or any of the Hong Kong
Offer Shares which any Hong Kong Underwriter is required to apply for
pursuant to clause 5(A). The Hong Kong Offer Shares reallocated pursuant
to this clause shall be made up of H Shares to be offered by the Company
and H Shares to be offered by the Selling Shareholder in the Offer Ratio
(subject to any necessary rounding). Any
20
allocation to the US Offering and/or International Offering pursuant to
this clause and duly subscribed for or purchased by the US Underwriters
and/or the International Underwriters and/or subscribers or purchasers
procured by any one or more of them shall satisfy pro tanto the
obligation of the Hong Kong Underwriters under this clause 5 and, as
between the Hong Kong Underwriters, on a pro-rata basis and no
underwriting commission will be payable to the Hong Kong Underwriters
regarding such reallocated H Shares.
(H) All obligations and liabilities of the Hong Kong Underwriters under this
Agreement to subscribe or purchase or to procure subscribers or
purchasers for Hong Kong Offer Shares will cease following due payment
in full by or on behalf of the respective Hong Kong Underwriters in
accordance with sub-clause 5(F)(ii) or on the Joint Global Coordinators
being correctly notified pursuant to clause 5(D) that the Hong Kong
Public Offering is fully subscribed or over-subscribed by Valid
Applications.
(I) The obligation of each Hong Kong Underwriter pursuant to this clause 5
shall be reduced to the extent that valid Underwriters' Applications (as
defined in Schedule 6) are made or procured by such Hong Kong
Underwriter to be made in accordance with the arrangements set out in
Schedule 6.
6. PAYMENT UNDER THE HONG KONG PUBLIC OFFERING
(A) The application moneys with interest thereon held by the Nominee shall,
in accordance with the provisions of the relevant Receiving Bankers'
Agreement and subject to clause 6(B), be split between the Company and
the Selling Shareholder in the Offer Ratio and paid over to the Company
and the Selling Shareholder in accordance therewith after the share
certificates for the Hong Kong Offer Shares have been despatched or
delivered by or on behalf of the Company to the successful applicants
under the Hong Kong Public Offering through the facilities of Hongkong
Clearing for credit to CCASS participants accounts or otherwise made
available to such applicants as provided in the Prospectus. Each of the
Company and the Selling Shareholder covenants and agrees that it will in
accordance with the provisions of the Receiving Bankers' Agreements, pay
or cause to be paid:
(i) the underwriting commission (such payment to be made by way of
deduction from the above application moneys held by the
Receiving Bankers in accordance with the terms of the Receiving
Bankers' Agreements) and the expenses payable pursuant to clause
7; and
(ii) such sums as are required to satisfy the payments referred to in
clause 6(B).
(B) The Joint Global Coordinators on behalf of the Hong Kong Underwriters
will arrange for the payment by the Nominee on behalf of the Company,
the Selling Shareholder and successful applicants under the Hong Kong
Public Offering:
21
(i) to members of the Hong Kong Stock Exchange and the Hong Kong
Underwriters (as the case may be and in accordance with the Hong
Kong Listing Rules) of brokerage at the rate of 1 per cent. of
the Offer Price;
(ii) to the Hong Kong Stock Exchange of the aggregate SFC transaction
levy at the rate of 0.01 per cent. of the Offer Price and the
aggregate investor compensation levy at the rate of 0.004 per
cent. of the Offer Price; and
(iii) to the Hong Kong Stock Exchange of the aggregate trading fee at
the rate of 0.01 per cent. of the Offer Price,
in respect of Valid Applications for the Hong Kong Offer Shares, such
amounts to be paid out of the application moneys.
22
SECTION IV: COMMISSION AND EXPENSES
7. COMMISSION AND EXPENSES
(A) In consideration of the services of the Hong Kong Underwriters under
this Agreement, the Company and the Selling Shareholder will pay to the
Joint Global Coordinators, for themselves and on behalf of the Hong Kong
Underwriters, an underwriting commission in the Offer Ratio and
calculated at the rate of 3.5 per cent. of the Offer Price multiplied by
the number of Initial Hong Kong Offer Shares, less any H Shares
reallocated under clause 5(G). For the avoidance of doubt, the Hong Kong
Underwriters shall not be entitled to any underwriting commissions in
respect of the Claw Back Shares or the H Shares reallocated under clause
5(G) as the relevant underwriting discounts and commissions relating to
such H Shares will be payable to the Joint Global Coordinators and the
relevant the US Underwriters and the International Underwriters in
accordance with the International Underwriting Agreement and deducted
from the subscription or purchase moneys payable under the International
Underwriting Agreement.
(B) The allocation and distribution of the underwriting commissions referred
to in clause 7(A) between the Hong Kong Underwriters shall be separately
dealt with in the Agreement Among Hong Kong Underwriters. Payment of the
underwriting commissions by the Company and, as the case may be, the
Selling Shareholder to the Joint Global Coordinators in accordance with
this Agreement and/or the Receiving Bankers' Agreements as appropriate
shall constitute good, full and final discharge of the Company's and the
Selling Shareholder's respective obligations under this Agreement to the
Hong Kong Underwriters to make payment of such underwriting commissions.
Neither the Company nor the Selling Shareholder shall be concerned as to
or bear any liability in respect of the allocation or distribution of
such underwriting commissions by the Joint Global Coordinators to any
one or more of the Hong Kong Underwriters.
(C) The Company and the Selling Shareholder will also pay to the Joint
Global Coordinators (for themselves and on behalf of each of the Joint
Sponsors and the Hong Kong Underwriters) such reasonable fees, costs and
expenses of the Joint Global Coordinators, the Joint Sponsors and the
Hong Kong Underwriters under this Agreement or in connection with the
Global Offering as the parties have separately agreed in writing.
In addition, the Company and the Selling Shareholder shall be
responsible for all such fees, costs and expenses reasonably incurred in
connection with or incidental to the Hong Kong Public Offering, which
shall include but are not limited to the following:
(i) all capital duty (if any), premium duty (if any) and other fees,
charges and expenses payable in respect of the creation and
issue of the Hong Kong Offer Shares;
(ii) fees and expenses of the Receiving Bankers and the Share
Registrar;
23
(iii) fees and expenses of the Reporting Accountants;
(iv) fees and expenses of the Actuarial Consultants;
(v) fees and expenses of Sallmanns (Far East) Limited;
(vi) fees and expenses of legal advisers of the Company and the
Selling Shareholder;
(vii) fees and expenses of any public relations consultants engaged;
(viii) fees and expenses of the translators;
(ix) fees and expenses related to the application for listing of and
permission to deal in the Offer Shares on the Hong Kong Stock
Exchange;
(x) fees and expenses related to the registration of the Hong Kong
Offering Documents with any relevant authority, including
without limitation the Registrar of Companies in Hong Kong;
(xi) costs and expenses relating to the launching of the Hong Kong
Public Offering;
(xii) printing and advertising costs;
(xiii) costs of preparation, printing, despatch and distribution of the
Hong Kong Offering Documents;
(xiv) CCASS transaction fees payable on the initial transfer with
CCASS of Hong Kong Offer Shares applied for using yellow
Application Forms; and
(xv) printing of share certificates, letters of regret and refund
cheques.
The Joint Global Coordinators are hereby authorised to direct the
Nominee to deduct from proceeds received from the Global Offering at
Closing (1) the underwriting commissions referred to in clause 7(A), (2)
the transaction levy, investor compensation levy, trading fee and
brokerage referred to in sub-clauses 5(F)(ii)(b) and (c), and (3) such
fees, costs and expenses set out in this clause which the Company and
the Selling Shareholder hereby agree to be withheld or deducted; and
arrange for such sum to be paid over to the Joint Global Coordinators or
to such persons as the Joint Global Coordinators may direct.
24
SECTION V: STABILIZATION
8. STABILIZATION
To the extent permitted by and in compliance with all applicable laws
and regulatory requirements of Hong Kong or elsewhere including but
without limitation the Securities and Futures (Price Stabilizing) Rules
made under the Securities and Futures Ordinance (Chapter 571 of the Laws
of Hong Kong) (the "Stabilizing Rules"), Citigroup Global Markets Asia
Limited, as stabilizing manager and in connection with the Global
Offering, may at its absolute discretion effect such transactions as are
permissible under, and in accordance with, the Stabilizing Rules with a
view to stabilizing or maintaining the market price of the Offer Shares
within a period prescribed under the Stabilizing Rules. Such stabilizing
actions, if commenced, may be discontinued at any time. All
stabilization and related activities in connection with the Global
Offering will be undertaken for the account and at the cost and expenses
of the Underwriters (and not as agents for the Company or the Selling
Shareholder) and neither the Company nor the Selling Shareholder shall
be liable for any costs, expenses or losses arising from or in
connection with any such activities.
25
SECTION VI: REPRESENTATIONS, WARRANTIES AND UNDERTAKINGS
9. REPRESENTATIONS, WARRANTIES AND UNDERTAKINGS RELATING TO THE COMPANY
The Company and the Selling Shareholder jointly and severally represent,
warrant and undertake to the Joint Global Coordinators, the Joint
Sponsors and the Hong Kong Underwriters and each of them in the terms
set out in Part 1 of Schedule 4. The Selling Shareholder further
represents, warrants and undertakes to the Joint Global Coordinators,
the Joint Sponsors and the Hong Kong Underwriters and each of them in
the terms set out in Part 2 of Schedule 4. The Company and the Selling
Shareholder accept that each of the Joint Global Coordinators, the Joint
Sponsors and the Hong Kong Underwriters is entering into this Agreement
in reliance upon the Warranties.
10. RIGHTS IN RELATION TO THE WARRANTIES
(A) Each Warranty shall be construed separately and shall not be limited or
restricted by reference to or inference from the terms of any other of
the Warranties or any other term of this Agreement.
(B) The Warranties shall remain in full force and effect notwithstanding
completion of the Hong Kong Public Offering.
(C) The Warranties are given on and as at the date of this Agreement with
respect to the facts and circumstances subsisting at the date of this
Agreement. In addition, the Warranties shall be deemed to be repeated on
and as at:
(i) the date on which the Prospectus is registered by the Registrar
of Companies in Hong Kong as required by section 342C of the
Companies Ordinance;
(ii) the Acceptance Date;
(iii) (1) immediately prior to the delivery by the Hong Kong
Underwriters of duly completed Application Forms and (2) payment
for the Hong Kong Offer Shares to be taken up, respectively,
pursuant to clause 5(F);
(iv) the Price Determination Date;
(v) the time and date detailed in clause 12(A); and
(vi) the Closing,
in each case, with reference to the facts and circumstances then
subsisting.
(D) Each of the Company and the Selling Shareholder undertakes to give
notice to the Joint Global Coordinators and each of the Hong Kong
Underwriters forthwith of any matter or event coming to its attention
prior to the last of the dates on which the Warranties are deemed to be
given pursuant to the provisions of clause 10(C) which shows any of the
Warranties to be or to have been untrue,
26
inaccurate or misleading or breached or it becomes aware of any
circumstances which would or can reasonably be expected to cause any of
the Warranties to be untrue, inaccurate, misleading or breached.
(E) If at any time, by reference to the facts and circumstances then
subsisting, prior to the last of the dates on which the Warranties are
deemed to be repeated pursuant to the provisions of clause 10(C), any
matter or event comes to the attention of the Company, the Selling
Shareholder or any of the Hong Kong Underwriters as a result of which
any of the Warranties, if repeated immediately after the occurrence of
such matter or event, would be untrue, inaccurate or misleading in any
material respect or which would or might render untrue, inaccurate or
misleading in any material respect any statement, whether of fact or
opinion, contained in any of the Hong Kong Offering Documents or the
Formal Notice if the same were issued immediately after the occurrence
of such matter or event, the Company, the Selling Shareholder or such
Hong Kong Underwriter (as the case may be) shall forthwith notify the
Joint Global Coordinators and each of the Hong Kong Underwriters and the
Company (as the case may be) and, but without prejudice to any other
rights of any party, the Company and the Joint Global Coordinators on
behalf of the Hong Kong Underwriters shall forthwith consult with a view
to agreeing, if the Prospectus has already been registered with the
Registrar of Companies in Hong Kong or distributed (as the case may be),
what announcement or circular or document, if any, should be issued,
published, distributed or made available or what other act or thing
should be done. Each of the Company and the Selling Shareholder agrees
not to issue, publish, distribute or make publicly available any such
announcement, circular or document without the prior written consent
(which consent shall not be unreasonably withheld) of the Joint Global
Coordinators (for themselves respectively and on behalf of the Hong Kong
Underwriters), except as required by applicable laws or regulations or
rules of the relevant stock exchange, in which case the Company and the
Selling Shareholder shall first consult the Joint Global Coordinators
(for themselves respectively and on behalf of the Hong Kong
Underwriters) before such issue, publication or distribution.
(F) Each of the Company and the Selling Shareholder will not, and will, so
far as it is reasonably able to do so, procure that none of its
affiliates will:
(i) do or omit to do anything which may cause any of the Warranties
to be untrue, inaccurate, misleading or breached in any respect
at any time immediately prior to the commencement of dealings in
the Offer Shares on the Hong Kong Stock Exchange (assuming such
representations or warranties to be repeated at the relevant
time with reference to the facts and circumstances then
subsisting); or
(ii) at any time immediately prior to the commencement of dealings in
the Offer Shares on the Hong Kong Stock Exchange enter into any
contract or commitment of an unusual or onerous nature, whether
or not that contract, if entered into prior to the date hereof,
would constitute a material contract for the purpose of the
Prospectus or other Hong Kong Offering Documents.
27
(G) Save and except for any loss or damage arising (and to the extent as
such loss or damage arose) primarily out of any gross negligence, wilful
default or fraud on the part of any of the Joint Global Coordinators,
the Joint Sponsors and the Hong Kong Underwriters, no claim shall be
made against the Joint Global Coordinators, the Joint Sponsors or the
Hong Kong Underwriters or any of them or against any other Indemnified
Person referred to in clause 13 by the Company, the Selling Shareholder
or any of their respective affiliates, to recover any damage, cost,
charge or expense which the Company, the Selling Shareholder or the
Directors or any of the respective affiliates of the Company or the
Selling Shareholder may suffer or incur by reason of or arising out of
the carrying out by the Joint Global Coordinators or the Joint Sponsors
or the Hong Kong Underwriters or any of them of the work to be done by
the Joint Global Coordinators or the Joint Sponsors or the Hong Kong
Underwriters or any of them pursuant hereto or the performance of their
respective obligations hereunder or otherwise in connection with the
Hong Kong Offering Documents, the Global Offering and any associated
transactions (whether in performance of its duties as underwriter or
financial adviser or otherwise). Specifically (but without prejudice to
the generality of the foregoing), none of the Joint Global Coordinators
or the Joint Sponsors or the Hong Kong Underwriters shall have any
liability or responsibility whatsoever for any alleged insufficiency of
the Offer Price or any dealing price of the Offer Shares.
28
SECTION VII: FURTHER UNDERTAKINGS
11. FURTHER UNDERTAKINGS
(A) The Company and the Selling Shareholder jointly and severally undertake
to each of the Joint Global Coordinators, the Joint Sponsors and the
Hong Kong Underwriters that:
(i) the Company and the Selling Shareholder will comply in all
respects with the terms and conditions of the Hong Kong Public
Offering and, in particular, without limitation:
(a) to comply with any obligation imposed upon them by the
Companies Ordinance and the Hong Kong Listing Rules in
respect of or by reason of the making of the Hong Kong
Public Offering including, but without limitation, the
making of all necessary filings with the Registrar of
Companies in Hong Kong, the Hong Kong Stock Exchange and
the SFC and the making available for inspection in Hong
Kong of the documents and in the manner referred to in
the paragraph headed "Documents available for
inspection" of appendix X to the Prospectus during the
period specified in that paragraph;
(b) in respect of the Company, to allot and issue and, in
respect of the Selling Shareholder, to sell and transfer
the Hong Kong Offer Shares in accordance with the Offer
Ratio to successful applicants under the Hong Kong
Public Offering and, if any of the Hong Kong Offer
Shares falls to be taken up pursuant to clause 5(A), to
the applicants under clause 5(F) or, as the case may be,
as the Joint Global Coordinators direct; and
(c) as soon as practicable following announcement of the
basis of allocation of the Hong Kong Offer Shares and in
any event no later than 9:00 a.m. on 17th December, 2003
(or such other time and date as may be determined in
accordance with the terms of the Hong Kong Public
Offering and this Agreement), to cause definitive share
certificates representing the Hong Kong Offer Shares to
be posted or made available for collection in accordance
with the terms of the Hong Kong Public Offering to
successful applicants or, as the case may be, procure
that the share certificates for Hong Kong Offer Shares
in respect of which successful applicants have elected
for delivery into CCASS shall be duly delivered to the
depositary for Hongkong Clearing for credit to the stock
account of such CCASS participant(s) as may be specified
for such purpose by or on behalf of the relevant
applicant;
(ii) each of the Company and the Selling Shareholder will require the
Share Registrar and the Receiving Bankers to comply with the
terms of their respective appointments and to do all such acts
and things as may be
29
required to be done by each of them and by the time specified or
necessary in connection with the Global Offering and in
particular, but without limitation, the Registrar's Agreement
and the Receiving Bankers' Agreements, respectively. None of the
terms of the appointments of the Share Registrar and the
Receiving Bankers shall be amended without the prior written
consent of the Joint Global Coordinators (on behalf of the Hong
Kong Underwriters) which consent shall not be unreasonably
withheld or delayed;
(iii) the Company and the Selling Shareholder shall promptly notify
the Joint Global Coordinators of (1) anything occurring or
coming to the attention of the Company or the Selling
Shareholder (as the case may be) subsequent to the execution of
this Agreement and immediately prior to the time and date
detailed in clause 12(A) as a result of which any of the Hong
Kong Offering Documents would include an untrue statement of a
material fact or omit to state a material fact or would be
misleading in any material respect, and (2) every significant
new factor likely to affect the Global Offering which arises
between the date hereof and the time and date detailed in clause
12(A) and which comes to the knowledge of the Company or the
Selling Shareholder (as the case may be); and if any information
is notified to the Joint Global Coordinators under this clause,
the Company shall, and the Selling Shareholder shall procure
that the Company shall, following, if applicable, confirmation
from the Hong Kong Stock Exchange, the SFC and/or any other
relevant regulatory authority that it considers such action
necessary or appropriate, prepare and publish such supplements
and/or amendments to the Hong Kong Offering Documents or other
documents and make such announcements as the Joint Global
Coordinators may reasonably require and, if necessary, after the
Company shall have obtained any applicable regulatory approval
or consent;
(iv) the Company will comply with the Hong Kong Listing Rules in
relation to supplemental listing document(s) that may be issued
in connection with the Global Offering and further agrees not to
issue, publish, distribute or make available any announcement,
circular or document as contemplated above without the prior
written consent of the Joint Global Coordinators;
(v) the Company will, in compliance with the Hong Kong Listing
Rules, deliver to the Hong Kong Stock Exchange the declaration
substantially in the form set out in Appendix 5, Form F of the
Hong Kong Listing Rules acceptable to the Hong Kong Stock
Exchange;
(vi) the Company will use its best endeavours to procure that none of
the promoters, directors, supervisors or chief executives of the
Company or any of its subsidiaries or any associate (as such
term is defined in the Hong Kong Listing Rules) will himself or
itself (or through a company controlled by him or it) apply for
any Offer Shares either in his or its own
30
name or through nominees unless permitted to do so under the
Hong Kong Listing Rules;
(vii) the Selling Shareholder will use its best endeavours to procure
that none of its directors, supervisors, chief executives or any
of its associates (as such term is defined in the Hong Kong
Listing Rules) will himself or itself (or through a company
controlled by him or it) apply for any Offer Shares either in
his or its own name or through nominees unless permitted to do
so under the Hong Kong Listing Rules;
(viii) the Company will use the net proceeds received by it pursuant to
the Global Offering in the manner specified in the Prospectus
under the section headed "Future plans and use of proceeds" and
in the event and to the extent that any such net proceeds is
placed on deposits with banks due to their not immediately being
used for the specific purposes as described in the Prospectus,
it shall place such proceeds on short-term bank deposits; and
(ix) the Company will pay any tax, duty, levy, fee or other charge or
expense (if any) which may be payable in the PRC and Hong Kong
or elsewhere, whether pursuant to the requirement of any law,
rule or regulation or otherwise, in connection with the
creation, allotment and issue or the sale and transfer (as the
case may be) of the Offer Shares, the Global Offering, the
execution and delivery of, and the performance of any of the
provisions under, this Agreement.
(B) The Company undertakes to each of the Joint Global Coordinators, Joint
Sponsors and Hong Kong Underwriters that, and the Selling Shareholder
undertakes to procure that, except pursuant to the Global Offering
(including pursuant to the Over-allotment Option), during a period of
180 days after the Prospectus Date, the Company will not without the
Joint Global Coordinators' prior written consent and unless in
compliance with the requirements of the Hong Kong Listing Rules offer,
pledge, charge, allot, issue, sell, contract to allot, issue or sell,
sell any option or contract to purchase, purchase any option or contract
to sell, grant or agree to grant any option, right or warrant to
purchase or subscribe for, lend or otherwise transfer or dispose of,
either directly or indirectly, or repurchase, any of its share capital
or any securities convertible into or exercisable or exchangeable for or
that represent the right to receive such share capital or enter into any
swap or other arrangement that transfers to another, in whole or in
part, any of the economic consequences of ownership of such share
capital, whether any of the foregoing transactions is to be settled by
delivery of share capital or such other securities, in cash or
otherwise, and further that, in the event of a disposal of any shares of
the Company or any interest therein within 12 months after the date
falling 180 days after the Prospectus Date, it will take all reasonable
steps to ensure that such an issue or disposal will not create a
disorderly or false market for the shares of the Company.
(C) The Selling Shareholder undertakes to each of the Company, the Joint
Global Coordinators, the Joint Sponsors and the Hong Kong Underwriters
that:
31
(i) except pursuant to the Global Offering (including pursuant to
the Over-allotment Option), it will not without the prior
written consent of the Joint Global Coordinators and unless in
compliance with the requirements of the Hong Kong Listing Rules,
at any time during a period of 180 days after the Prospectus
Date offer, pledge, charge, sell, contract to sell, sell any
option or contract to purchase, purchase any option or contract
to sell, grant or agree to grant any option, right or warrant to
purchase or subscribe for, lend or otherwise transfer or dispose
of, either directly or indirectly, any of the share capital or
other securities of the Company held by it that are convertible
into or exercisable or exchangeable for, or that represent the
right to receive any such share capital or enter into any swap
or other arrangement that transfers to another, in whole or in
part, any of the economic consequences of ownership of such
share capital, whether any of the foregoing transactions is to
be settled by delivery of share capital or such other
securities, in cash or otherwise, and further agrees that, in
the event of a disposal of any shares of the Company or any
interest therein within 12 months after the date falling 180
days after the Prospectus Date, it will take all reasonable
steps to ensure that such a disposal will not create a
disorderly or false market for the shares of the Company; and
(ii) it will, at any time after the Prospectus Date up to and
including the date falling 12 months following the date on which
dealings in the H Shares on the Hong Kong Stock Exchange
commence immediately inform the Company, the Joint Global
Coordinators and the Joint Sponsors of any pledges or charges of
any shares of the Company or other share capital of the Company
beneficially owned by it and the number of such shares of the
Company or other securities so pledged or charged and of any
indication received by it, either verbal or written, from any
pledgee or chargee of any shares of the Company or other share
capital of the Company pledged or charged that such shares of
the Company or other share capital of the Company will be
disposed of.
(D) Each of the Company and the Selling Shareholder further undertakes to
each of the Joint Global Coordinators, the Joint Sponsors and the Hong
Kong Underwriters that it will not use, and will cause each of its
subsidiaries not to use, the proceeds from the sale of its H Shares or
ADSs, directly or indirectly, for any purpose or activity that would
cause the Underwriters or any purchaser of the H Shares or ADSs to be in
violation of the United States Trading With the Enemy Act, as amended,
the United States International Emergency Economic Powers Act, as
amended, or any of the foreign assets control regulations of the United
States Treasury Department (31 CFR, Subtitle B, Chapter V, as amended)
or any enabling legislation or executive order relating thereto, or in
connection with business, operations or contracts with the Governments
of or with any person or entity in Burma (Myanmar), Cuba, Iran, Libya or
Sudan or any agent or "Specially Designated National" or "Blocked
Person" (identified in 31 CFR, Subtitle B, Chapter V, Appendix 1)
thereof, or in connection with contracts in support of projects in or
for the benefit of the Governments of the above indicated countries.
32
(E) The Company shall, and the Selling Shareholder shall procure that the
Company will:
(i) use its best endeavours to obtain and maintain all approvals (if
any) required in the PRC by the Company to acquire its required
foreign exchange;
(ii) following completion of the Global Offering, use its best
endeavours to ensure that it has sufficient foreign exchange to
meet payment of any dividends which may be declared in respect
of the H Shares and the ADSs;
(iii) use its best endeavours to maintain the listing of the H Shares
on the Hong Kong Stock Exchange for at least one year after the
Conditions have been fulfilled except following a withdrawal of
such listing which has been approved by the relevant
shareholders of the Company in accordance with the Hong Kong
Listing Rules or following an offer (within the meaning of the
Hong Kong Code on Takeovers and Mergers) for the Company
becoming unconditional;
(iv) procure that the audited accounts of the Company for the
financial years ending 31st December, 2003 and 31st December,
2004 will be prepared on a basis consistent in all material
respects with the accounting policies adopted for the purposes
of the Company Accounts contained in the report of the Reporting
Accountants set out in appendix I to the Prospectus, and that a
statement of the Group's pro forma results will be included in
the Company's annual report for the financial year ending 31st
December, 2003 (which statement shall comprise the Group's pro
forma results for the 6 months ended 30th June, 2003 included in
the Prospectus and its actual results for the 6 months ending
31st December, 2003, adjusted to reflect what its results for
this period would have been had the Restructuring occurred on
1st July, 2003, and be accompanied by a management discussion
comparing these results with the Group's pro forma results for
the year ended 31st December, 2002 included in the Prospectus
and a report from the Company's independent auditors on the pro
forma results for the year ending 31st December, 2003 similar to
the report on the pro forma results for the year ended 31st
December, 2002 and the 6 month periods ended 30th June, 2002 and
2003 included in appendix II to the Prospectus);
(v) at any time after the date of this Agreement up to and including
the date on which all of the Conditions are fulfilled (or
waived) in accordance with this Agreement, not amend or agree to
amend its articles of association save as requested by the Hong
Kong Stock Exchange; and
(vi) the Restructuring, insofar and to such extent as not having been
completed as at the date of this Agreement, shall be completed
before dealings in the H Shares on the Hong Kong Stock Exchange
shall commence.
33
SECTION VIII: TERMINATION
12. TERMINATION
(A) If, at any time prior to 8:00 a.m. on the day that trading in the Offer
Shares commences on the Hong Kong Stock Exchange:
(i) there shall develop, occur, exist or come into effect:
(a) any new law or regulation or any change in existing laws
or regulations or any change in the interpretation or
application thereof by any court or other competent
authority of Hong Kong, the PRC, Japan, the United
States or the European Union;
(b) any change or development involving a prospective change
in local, national or international financial,
political, military, industrial, economic, currency,
market or regulatory conditions in Hong Kong, the PRC,
Japan, the United States or the European Union;
(c) any change in the financial markets in Hong Kong or the
United States or generally in the international
financial markets;
(d) a general moratorium on commercial banking activities in
Hong Kong, the PRC, Tokyo, New York or any other
relevant jurisdiction or place as declared by the
relevant authorities;
(e) a suspension or material limitation in trading in
securities generally on the Hong Kong Stock Exchange,
the Tokyo Stock Exchange or the New York Stock Exchange,
Inc., or any material disruption in commercial banking
or securities settlement, payment or clearance services
or procedures in Hong Kong, the PRC, Japan, the United
States or the European Union;
(f) a change or development involving a prospective change
in taxation or exchange control (or the imposition or
implementation of any exchange control) or currency
exchange rates or foreign investment regulations in Hong
Kong, the PRC, Japan or the United States;
(g) the outbreak or escalation of hostilities involving Hong
Kong, the PRC, Japan or the United States, or the
declaration by Hong Kong, the PRC, Japan or the United
States of a national emergency or war or the occurrence
of any other calamity or crisis;
(h) any adverse change or prospective adverse change in the
condition, financial or otherwise, or in the business
affairs, business operations or trading position of the
Company or the Group; or
34
(i) any other event of force majeure, including without
limitation act of God, riot, public disorder, civil
commotion, economic sanctions, fire, flood, explosion,
epidemic, terrorism, labour dispute, strike or lock-out,
which, individually or in the aggregate and in the sole opinion
of the Joint Global Coordinators (for themselves and on behalf
of the Hong Kong Underwriters):
(1) is or will be or is likely to be materially
adverse to the business, financial or other
condition or prospects of the Company or the
Group or, in the case of sub-paragraph (f), to
any present or prospective shareholder of the
Company in his/its capacity as such; or
(2) has or will have or is likely to have a material
adverse effect on the success of the Global
Offering or the level of Offer Shares being
applied for or accepted or the distribution of
Offer Shares; or
(3) makes it inadvisable or impracticable to proceed
with the Global Offering or the delivery of the
Offer Shares on the terms and in the manner
contemplated by the Prospectus; or
(ii) any matter has arisen or has been discovered which would, had it
arisen immediately before the Prospectus Date, not having been
disclosed in the Prospectus and not having been disclosed or
known to the Joint Global Coordinators, constitute a material
omission therefrom; or
(iii) any statement contained in the Prospectus has become or been
discovered to be untrue, incorrect or misleading in any material
respect; or
(iv) there shall have occurred any matter or event, act or omission
which gives rise or is reasonably likely to give rise to any
material liability of the Company or the Selling Shareholder
pursuant to the indemnities contained in clause 13; or
(v) there comes to the notice of the Joint Global Coordinators any
matter or event showing any of the Warranties given by the
Company or the Selling Shareholder in this Agreement to be
untrue or misleading in any material respect when given or
repeated; or
(vi) there comes to the notice of the Joint Global Coordinators any
material breach on the part of the Company or the Selling
Shareholder of any of the provisions of this Agreement,
35
then the Joint Global Coordinators may upon giving notice in writing to
the Company and the Hong Kong Underwriters, terminate this Agreement
with immediate effect.
(B) Upon the termination of this Agreement pursuant to the provisions of
clause 2(D) or clause 12(A):
(i) each of the parties hereto shall cease to have any rights or
obligations under this Agreement, save in respect of the
provisions of this clause 12 and clauses 13, 19, 22 to 25 and
any rights or obligations which may have accrued under this
Agreement prior to such termination;
(ii) with respect to the Hong Kong Public Offering, all payments made
by the Hong Kong Underwriters or any of them pursuant to clause
5(F) and/or by successful applicants under Valid Applications
shall be refunded forthwith (in the latter case the Company and
the Selling Shareholder shall procure that the Share Registrar
and the Nominee despatch refund cheques to all applicants under
the Hong Kong Public Offering in accordance with the Registrar's
Agreement and the relevant Receiving Bankers' Agreement); and
(iii) subject to other agreements entered into in writing between the
Company, the Selling Shareholder and the Joint Global
Coordinators, the Company and the Selling Shareholder shall pay
to the Joint Global Coordinators the reasonable fees, costs and
expenses which are payable to or have been incurred by the Joint
Global Coordinators, the Joint Sponsors and the Hong Kong
Underwriters under this Agreement or in connection with the
Global Offering as provided for and set out in clause 7(C) not
later than 30 days from the date of receipt by the Company and
the Selling Shareholder of each written notification from the
Joint Global Coordinators of any such amount or amounts due from
time to time.
36
SECTION IX: INDEMNITY
13. INDEMNITY
(A) The Company and the Selling Shareholder jointly and severally undertake
to indemnify and keep indemnified (on an after-tax basis) and hold
harmless each of the Joint Global Coordinators, the Joint Sponsors and
the Hong Kong Underwriters (for themselves and on trust for their
respective directors, officers, employees, agents, assignees and
affiliates (the "Related Parties")) (each an "Indemnified Person") from
and against (a) all and any actions, claims (whether or not any such
claim involves or results in any actions or proceedings), demands,
investigations and proceedings from time to time made or brought or
threatened to be made or brought (together the "Actions") against, and
(b) all losses, damages, liabilities, payments, costs or expenses
including legal fees and taxes (including stamp duty and any penalties
and/or interest arising in respect of any taxes) (including, without
limitation, all payments, costs or expenses made or incurred arising out
of or in connection with the settlement of any Actions or in
investigating, disputing or defending the same or the enforcement of any
such settlement or any judgement obtained in respect of any Actions)
(together the "Losses") which may be suffered, made or incurred by, an
Indemnified Person (with such amount of indemnity to be paid to each of
the Joint Global Coordinators, the Joint Sponsors and the Hong Kong
Underwriters to cover all the Actions against and Losses incurred by
such party and its Related Parties) arising out of or in connection
with:
(i) the performance by any of the Joint Global Coordinators, the
Joint Sponsors, the Hong Kong Underwriters or any of them of its
or their obligations under this Agreement; or
(ii) the issue, publication, distribution or making available of any
of the Hong Kong Offering Documents, the preliminary prospectus
dated 1st December, 2003 issued by the Company in connection
with the US Offering, the preliminary offering circular dated
1st December, 2003 issued by the Company in connection with the
International Offering or the final prospectus and offering
circular to be issued by the Company in connection with the US
Offering and the International Offering respectively (including
any amendment thereof or supplement thereto) and/or any
announcement whatsoever in connection with the Global Offering;
or
(iii) the allotment and issue or the sale and transfer of the Offer
Shares; or
(iv) any breach or alleged breach on the part of the Company or the
Selling Shareholder of any of the provisions of this Agreement
or the International Underwriting Agreement; or
(v) any failure or alleged failure by any of the Directors to comply
with their respective obligations under the Hong Kong Listing
Rules; or
37
(vi) any of the Warranties being untrue, inaccurate or misleading or
otherwise breached or being alleged by any third party to be
untrue, inaccurate or misleading or otherwise breached; or
(vii) the Hong Kong Public Offering being, or being alleged to be, in
violation of the requirements of the Hong Kong Listing Rules or
any other applicable Law, rules or regulations; or
(viii) any statement, estimate or forecast contained in the Prospectus
or other Hong Kong Offering Documents being, or being alleged to
be, untrue, inaccurate, incomplete or misleading or the fact or
any allegation that the Prospectus does not, or did not, contain
all information material in the context of the Hong Kong Public
Offering or otherwise required to be state therein; or
(x) the settlement of any investigation or proceeding by any
Governmental Authority, commenced or threatened in connection
with the Global Offering; or
(xi) any transaction taken or to be taken pursuant to or otherwise in
connection with the Restructuring,
Provided that the indemnity in respect of any Action or Loss resulting
from sub-clauses 13(A)(i) or (ii) shall not be available to any
Indemnified Person to the extent that such Action or Loss was caused
primarily by the gross negligence, wilful default or fraud on the part
of such Indemnified Person (or any party who is its Related Party, or of
whom it is a Related Party); and any settlement or compromise of any
Action or Loss by any of the Joint Global Coordinators, Joint Sponsors
and Hong Kong Underwriters or any other Indemnified Person shall be made
without prejudice to any claim, action or demand which any of the other
Joint Global Coordinators, Joint Sponsors and Hong Kong Underwriters or
any other Indemnified Person may have or make against the Company and/or
the Selling Shareholder under this clause 13 or otherwise under this
Agreement.
(B) In case any proceeding (including any governmental investigation) shall
be instituted involving any Indemnified Person, such Indemnified Person
shall promptly notify the Company and the Selling Shareholder in writing
and the Company and the Selling Shareholder shall pay the fees and
disbursements of counsel related to such proceeding. Such Indemnified
Person shall, subject to any requirement imposed by any insurer of the
Indemnified Person, consult with the Company and the Selling Shareholder
and the Joint Global Coordinators and keep them informed in relation to
such proceeding. Any failure by an Indemnified Person to notify or
consult with the Company and/or the Selling Shareholder shall however
not in any way relieve or reduce the obligations of the Company and the
Selling Shareholder to indemnify each and every Indemnified Person under
this clause 13.
(C) Counsel to the Indemnified Persons shall be selected by the Joint Global
Coordinators. The Company and/or the Selling Shareholder, as the case
may be,
38
may participate at its own expense in the defence of any such action;
provided, however, that counsel to the Company and/or the Selling
Shareholder, as the case may be, shall not (except with the consent of
the Indemnified Person) also be counsel to the Indemnified Person. None
of the Company and the Selling Shareholder, shall, without the prior
written consent of the Indemnified Person, settle or compromise or
consent to the entry of any judgement with respect to any litigation, or
any investigation or proceeding by any governmental agency or body,
commenced or threatened, or any claim whatsoever in respect of which
indemnification or contribution could be sought under this clause 13
(whether or not the Indemnified Persons are actual or potential parties
thereto), unless such settlement, compromise or consent (i) includes an
unconditional release of each Indemnified Person from all liabilities
arising out of such litigation, investigation, proceeding or claim and
(ii) does not include a statement as to the admission of fault to act by
or on behalf of any Indemnified Person.
(D) The provisions of the indemnities contained in this clause 13 are not
affected by any other terms (including any limitations) set out in this
Agreement and do not restrict the right of any Indemnified Person to
claim against the Company and/or the Selling Shareholder on any other
basis.
(E) For the avoidance of doubt, the indemnities in this clause 13 in favour
of the Joint Global Coordinators are given in relation to the offering
of the Hong Kong Offer Shares, and all matters pertaining to the conduct
of the US Offering and the International Offering, including the
indemnities with respect to the offering and distribution of the US
Offer Shares and International Offer Shares, will be governed by the
International Underwriting Agreement; and the indemnities in this clause
in favour of the Joint Sponsors and the Hong Kong Underwriters are given
to them in their capacity as such in the Hong Kong Public Offering.
(F) Additionally, no party shall be entitled to claim indemnity from the
Company or the Selling Shareholder under this clause 13 in respect of
any Loss caused by actions of the Joint Global Coordinators or any of
the International or US Underwriters under or in connection with the
International or US Offering in breach of the provisions of the
International Underwriting Agreement or violating the provisions
governing selling restrictions as contained in the relevant prospectus
or offering circular.
39
SECTION X: GENERAL PROVISIONS
14. REMEDIES, WAIVERS AND RELEASE
(A) No delay or omission on the part of any party hereto in exercising any
right, power or remedy under this Agreement shall:
(i) impair such right, power or remedy; or
(ii) operate as a waiver thereof.
(B) The single or partial exercise of any right, power or remedy under this
Agreement shall not preclude any other or further exercise thereof or
the exercise of any other right, power or remedy.
(C) The rights, powers and remedies provided in this Agreement are
cumulative and not exclusive of any rights, powers and remedies provided
by law.
(D) Each party hereto may expressly release or compromise the liability of
any other party hereto or grant time or other indulgence to any party
hereto in any way without releasing or reducing or compromising the
liability of such party in any other way or any other party hereto.
15. ASSIGNMENT
(A) This Agreement shall be binding on, and enure for the benefit of, the
parties hereto and their respective successors, personal representatives
and permitted assigns.
(B) The Joint Global Coordinators, Joint Sponsors and Hong Kong Underwriters
or any of them may assign to any person or persons the benefits of and
interests and rights in or arising under this Agreement. Save as
aforesaid, no other party hereto shall assign or transfer all or any
part of any benefit of, or interest or right in, this Agreement, or any
benefit, interest, right or obligation arising under this Agreement.
16. FURTHER ASSURANCE
The Company and the Selling Shareholder shall from time to time, on
being required to do so by the Joint Global Coordinators now or at any
time in the future do or procure the doing of such acts and/or execute
or procure the execution of such documents as the Joint Global
Coordinators may reasonably require to give full effect to this
Agreement and securing to the Hong Kong Underwriters or any of them the
full benefit of the rights, powers and remedies conferred upon them or
any of them in this Agreement.
40
17. ENTIRE AGREEMENT
(A) This Agreement and any other documents referred to in this Agreement
constitute the whole and only agreement between the Company, the Selling
Shareholder, the Joint Global Coordinators, the Joint Sponsors and the
Hong Kong Underwriters relating to the underwriting of the Hong Kong
Public Offering and supersedes and extinguishes any other prior drafts,
agreements, undertakings, representations, warranties and arrangements
of any nature whatsoever, whether or not in writing, relating thereto
made or given by any other party or any other person, whether or not in
writing, at any time prior to the execution of this Agreement
("Pre-contractual Statements").
(B) Each party hereto acknowledges that in entering into this Agreement on
the terms set out in this Agreement it is not relying upon any
Pre-contractual Statement which is not expressly set out herein or the
documents referred to herein.
(C) No party shall have any right of action (except in the case of fraud)
against any other party to this Agreement arising out of or in
connection with any Pre-contractual Statement except to the extent that
such Pre-contractual Statement is repeated in this Agreement or the
documents referred to herein.
(D) This Agreement may only be varied in writing signed by each of the
parties hereto.
18. NOTICES
(A) Any notice or other communication given or made under this Agreement
shall be in writing (other than writing on the screen of a visual
display unit or other similar device which shall not be treated as
writing for the purpose of this clause 18) and shall, unless otherwise
specified, be in English or Chinese.
(B) Any such notice or other communication shall be addressed as provided in
clause 18(C) and, if so addressed, shall be deemed to have been duly
given or made as follows:
(i) if sent by personal delivery, upon delivery at the address of
the relevant party;
(ii) if sent by post, two Business Days (if posted within Hong Kong)
or five Business Days (if posted outside of Hong Kong) after the
date of posting; and
(iii) if sent by facsimile, upon despatch to the facsimile number of
the recipient, with the production of a transmission report by
the machine from which the facsimile was sent which indicates
that the facsimile was sent in its entirety to the facsimile
number of the recipient and Provided that a confirmation copy of
such notice or communication shall be sent by post to the
addressee concerned not later than the Business Day immediately
following the date of despatch of the facsimile.
41
(C) The relevant addressee, address and facsimile number of the Company and
the Selling Shareholder for the purpose of this Agreement, subject to
clause 18(D), are set out below. The relevant addressee, address and
facsimile number of the Joint Global Coordinators and the other Hong
Kong Underwriters are set out in Schedule 3 hereto.
Name of party Address Facsimile no.
------------- ----------------------------------- ----------------
The Company 16 Chaowai Avenue Chaoyang District (8610) 8565 2233
Beijing 100020
The People's Republic of China
Attention: Cui Yong
The Selling 5 Guanyingyuan Xiqu (8610) 6617 2189
Shareholder Xicheng District
Beijing 100035
The People's Republic of China
Attention: Wang Sidong
(D) A party may notify the other parties to this Agreement of a change to
its relevant addressee, address or facsimile number for the purpose of
clause 18(C) Provided that such notification shall only be effective on:
(i) the date specified in the notification as the date on which the
change is to take place; or
(ii) if no date is specified or the date specified is earlier than
the date on which a notice is deemed under clause 18(B) to have
been duly given, the date on which such notice is so deemed to
have been duly given.
19. ANNOUNCEMENTS
(A) Subject to clause 19(B), no announcement concerning the Hong Kong Public
Offering or any ancillary matter shall be made by any of the parties
hereto without the prior written approval of the Joint Global
Coordinators and the Company (other than advertisements relating to the
Global Offering or any ancillary matter that may be published, or caused
to be published, by the Joint Global Coordinators), such approval not to
be unreasonably withheld or delayed.
(B) Any party hereto may make an announcement concerning the Hong Kong
Public Offering or any ancillary matter if and to the extent:
(i) required by law or by an order of a court of competent
jurisdiction;
42
(ii) required by any securities exchange or regulatory or
governmental body to which such party is subject or submits,
wherever situated, including, without limitation, the Hong Kong
Stock Exchange, whether or not the requirement has the force of
law; or
(iii) the Joint Global Coordinators have, after consultation with the
Company, given prior written approval to the making of the
announcement,
Provided that in relation to paragraphs (i) and (ii) above any such
announcement shall be made only after consultation with the Joint Global
Coordinators and the Company.
(C) The restrictions contained in this clause 19 shall continue to apply for
a period of one year after the execution of this Agreement, provided
that approval of the Joint Global Coordinators to any announcement
proposed to be made by the Company or the Selling Shareholder after
expiry of the stabilizing period prescribed under the Stabilizing Rules
as referred to in clause 8 shall not be unreasonably withheld or
delayed. The Company and the Selling Shareholder shall procure
compliance by their respective subsidiaries and affiliates with the
provisions of this clause 19.
20. TIME OF ESSENCE
(A) Any date or period referred to in this Agreement may be extended by
mutual agreement between the Company, the Selling Shareholder and the
Joint Global Coordinators (for themselves and for and on behalf of the
Joint Sponsors and the other Hong Kong Underwriters). Save as otherwise
expressly provided, as regards any date or period originally fixed or
any date or period so extended as aforesaid, time is of the essence of
this Agreement.
(B) Without prejudice to clause 20(A), in the event that circumstances arise
or have arisen as a result of which the Contingency Plan is required to
be implemented with respect to the Hong Kong Public Offering as
contemplated under clause 3(K), the Joint Global Coordinators may,
subject to the terms of the Hong Kong Public Offering and to any
necessary authorisations or approvals from the SFC and/or the Hong Kong
Stock Exchange, agree with the Company and the Selling Shareholder such
alternative times and/or deadlines for the purposes of this Agreement as
may be necessary for the implementation of the Hong Kong Public Offering
on a basis and to a timetable which is consistent with the Contingency
Plan.
21. INVALIDITY
If at any time any provision of this Agreement is or becomes illegal,
invalid or unenforceable in any respect under the law of any
jurisdiction, that shall not affect or impair:
43
(i) the legality, validity or enforceability in that jurisdiction of
any other provision of this Agreement; or
(ii) the legality, validity or enforceability under the law of any
other jurisdiction of that or any other provision of this
Agreement.
22. GOVERNING LAW
This Agreement shall be governed by and construed in accordance with
Hong Kong law.
23. JURISDICTION AND DISPUTE RESOLUTION
(A) Any dispute arising out of or in connection with this Agreement
including any question regarding its existence, validity or termination,
shall be finally resolved by the UNCITRAL Rules, which Rules are deemed
to be incorporated by reference into this clause. Notwithstanding this,
each of the Joint Global Coordinators, the Joint Sponsors and the Hong
Kong Underwriters shall have the sole right to commence proceedings or
pursue claims (including any third party claims in proceedings in which
it is joined as a defendant) in any court of competent jurisdiction in
relation to any dispute arising out of or in connection with this
Agreement. Once a dispute is referred to arbitration or court
proceedings are commenced, the other party or parties to the arbitration
or court proceedings shall submit to respectively the arbitration or the
jurisdiction of the court in which such proceedings have been commenced.
(B) The place of arbitration shall be the Hong Kong International
Arbitration Centre "HKIAC").
(C) The arbitral tribunal shall be composed of three arbitrators. The
appointing authority shall be HKIAC.
(D) The governing law of the arbitration proceedings will be the law of Hong
Kong.
(E) The language to be used in the arbitral proceedings shall be English.
(F) The taking of proceedings in any one or more jurisdictions shall not
preclude the taking of the proceedings in any other jurisdiction,
whether concurrently or not, to the extent permitted by the law of that
jurisdiction.
(G) Each of the parties hereto irrevocably waives (and irrevocably agrees
not to raise) any objection which it may now or hereafter have to the
laying of the venue of any proceedings in any court of competent
jurisdiction and any claim of forum non conveniens and further
irrevocably agrees that a judgement in any proceedings brought in any
court referred to in this clause shall be conclusive and binding upon it
and may be enforced in the courts of any other jurisdiction.
44
(H) The Company hereby irrevocably authorises and appoints Mr. K.S. Heng of
Block C5, 12th Floor, Ventris Place, 19-23 Ventris Road, Happy Valley,
Hong Kong or such persons, being resident in Hong Kong, as it may from
time to time appoint as its agent to accept service of all legal
process, including service of a notice of arbitration under the Rules,
arising out of or connected with this Agreement and service on such
persons shall be deemed to be service on the Company.
(I) The Selling Shareholder hereby irrevocably authorises and appoints Mr.
K.S. Heng of Block C5, 12th Floor, Ventris Place, 19-23 Ventris Road,
Happy Valley, Hong Kong or such persons, being resident in Hong Kong, as
it may from time to time appoint as its agent to accept service of all
legal process, including service of a notice of arbitration under the
Rules, arising out of or connected with this Agreement and service on
such persons shall be deemed to be service on the Selling Shareholder.
(J) Should court proceedings be commenced by any of the Joint Global
Coordinators, the Joint Sponsors or the Hong Kong Underwriters, upon
being given notice of such proceedings in writing, the party against
whom such proceedings have been brought shall immediately appoint an
agent to accept service of process in the relevant jurisdiction and
shall give notice to the relevant Joint Global Coordinator, Joint
Sponsor or Hong Kong Underwriter of the details and address for service
of such agent.
24. IMMUNITY
To the extent that any party hereto may in any court proceedings arising
out of or in connection with this Agreement or in any proceedings taken
for the enforcement of any determination, decision, order or award made
in such court proceedings claim for itself or its assets immunity from
suit or other legal process or to the extent that in any such court or
enforcement proceedings there may be attributed to itself or its assets
such immunity (whether or not claimed), such party hereby irrevocably
waives such immunity and consents, in respect of any such court or
enforcement proceedings, to the giving of any relief or the issue of any
process including, without limitation, the making, enforcement or
execution against property whatsoever (irrespective of its use or
intended use) to the full extent permitted by applicable laws.
25. JUDGMENT CURRENCY INDEMNITY
(A) If for the purpose of obtaining judgement in any court by the Company or
the Selling Shareholder or a Joint Global Coordinator or a Joint Sponsor
or a Hong Kong Underwriter as the case may be (for the purpose of this
clause 25, the "Claiming Party") it is necessary to convert a sum due
hereunder into any currency other than Hong Kong dollars, the parties
hereto agree, to the fullest extent that they may effectively do so,
that the rate of exchange used shall be the rate at which in accordance
with normal banking procedures such Claiming Party
45
could purchase Hong Kong dollars with such other currency in Hong Kong
on the Business Day preceding that on which final judgement is given.
(B) The obligation of any party hereto in respect of any sum due from such
party (for the purpose of this clause 25, the "Obligor") to any Claiming
Party shall, notwithstanding any judgement in a currency other than Hong
Kong dollars, not be discharged until the first Business Day following
receipt by such Claiming Party of any sum adjudged to be so due in such
other currency, on which (and only to the extent that) such Claiming
Party may in accordance with normal banking procedures purchase Hong
Kong dollars with such other currency.
(C) If the Hong Kong dollars purchased pursuant to this clause 25 are less
than the sum originally due to the Claiming Party, such Obligor agrees,
as a separate obligation and notwithstanding any such judgement, to
indemnify the Claiming Party against such loss.
(D) If the Hong Kong dollars purchased pursuant to this clause 25 are
greater than the sum originally due to the Claiming Party, the Claiming
Party agrees, as a separate obligation and notwithstanding any such
judgement, to repay to the Obligor an amount equal to the excess of the
Hong Kong dollars so purchased over the sum originally due hereunder to
the Claiming Party.
26. COUNTERPARTS
(A) This Agreement may be executed in any number of counterparts, and by the
parties on separate counterparts, but shall not be effective until each
party has executed at least one counterpart.
(B) Each counterpart shall constitute an original of this Agreement, but all
the counterparts shall together constitute but one and the same
instrument.
IN WITNESS whereof this Agreement has been executed under hand by or on behalf
of the parties hereto the day and year first above written.
46
SCHEDULE 1
THE JOINT GLOBAL COORDINATORS
NAME ADDRESS AND CONTACT DETAILS
- ---- ---------------------------
(in alphabetical order)
China International Capital Corporation 28th Floor, China World Tower 2
Limited No.1, Jian Guo Men Wai Avenue
Beijing 100004
China
Facsimile No.: (8610) 6505 1156
Citigroup Global Markets Asia Limited 20th Floor, Three Exchange Square
Central
Hong Kong
Facsimile No.:(852) 2501 8225
Credit Suisse First Boston (Hong Kong) 45th Floor, Two Exchange Square
Limited Central
Hong Kong
Facsimile No.:(852) 2101 7721
Deutsche Bank AG, Hong Kong Branch 55th Floor, Cheung Kong Center
2 Queen's Road Central
Hong Kong
Facsimile No.: (852) 2203 7220
47
SCHEDULE 2
THE JOINT SPONSORS
NAME ADDRESS AND CONTACT DETAILS
- ---- ---------------------------
(in alphabetical order)
China International Capital Corporation Suite 2307, 23rd Floor
(Hong Kong) Limited One International Finance Centre
1 Harbour View Street
Central
Hong Kong
Facsimile No.: (852) 2872 2100
Citigroup Global Markets Asia Limited 20th Floor, Three Exchange Square
Central
Hong Kong
Facsimile No.: (852) 2501 8116
Credit Suisse First Boston (Hong Kong) 45th Floor, Two Exchange Square
Limited Central
Hong Kong
Facsimile No.: (852) 2101 7738
Deutsche Bank AG, Hong Kong Branch 55th Floor, Cheung Kong Center
2 Queen's Road Central
Hong Kong
Facsimile No.:(852) 2203 7202
48
SCHEDULE 3
THE HONG KONG UNDERWRITERS
PERCENTAGE OF
HONG KONG NUMBER OF
PUBLIC HONG KONG
ADDRESS AND OFFERING OFFER SHARES
NAME CONTACT DETAILS UNDERWRITTEN UNDERWRITTEN
- ----------------------------- --------------------------------- ------------- ------------
China International Capital Suite 2307, 23rd Floor 21.00% 67,941,090
Corporation One International Finance Centre
(Hong Kong) Limited 1 Harbour View Street
Central
Hong Kong
Facsimile No.: (852) 2872 2100
Citigroup Global Markets Asia 20th Floor, Three Exchange Square 21.00% 67,941,090
Limited Central
Hong Kong
Facsimile No.: (852) 2501 8116
Credit Suisse First Boston 45th Floor, Two Exchange Square 21.00% 67,941,090
(Hong Kong) Limited Central
Hong Kong
Facsimile No.: (852) 2101 7738
Deutsche Bank AG, Hong Kong 55th Floor, Cheung Kong Center 21.00% 67,941,090
Branch 2 Queen's Road Central
Hong Kong
Facsimile No.: (852) 2203 7202
BNP Paribas Peregrine Capital 36th Floor 3.00% 9,705,870
Limited Asia Pacific Finance Tower
3 Garden Road
Central
Hong Kong
Facsimile No.: (852) 2845 5300
China Everbright Capital 40th Floor 3.00% 9,705,870
Limited Far East Finance Centre
16 Harcourt Road
Hong Kong
Facsimile No.: (852) 2866 6841
ICEA Capital Limited 42nd Floor 3.00% 9,705,870
Jardine House
49
PERCENTAGE OF
HONG KONG NUMBER OF
PUBLIC HONG KONG
ADDRESS AND OFFERING OFFER SHARES
NAME CONTACT DETAILS UNDERWRITTEN UNDERWRITTEN
- ----------------------------- --------------------------------- ------------- ------------
1 Connaught Place
Central
Hong Kong
Facsimile No.: (852) 2525 0967
Asia Commercial Bank Limited Asia Financial Centre 0.70% 2,264,703
120 Des Voeux Road Central
Hong Kong
Facsimile No.: (852) 2541 0009
China Insurance Group 29th Floor 0.70% 2,264,703
Securities Limited China Insurance Group Building
141 Des Voeux Road Central
Hong Kong
Facsimile No.: (852) 2815 1499
CM-CCS Securities Limited 48th Floor 0.70% 2,264,703
One Exchange Square
Central
Hong Kong
Facsimile No.: (852) 3101 0828
Core Pacific - Yamaichi 36th Floor 0.70% 2,264,703
International (H.K.) Limited Cosco Tower
Grand Millennium Plaza
183 Queen's Road Central
Hong Kong
Facsimile No.: (852) 2523 2268
Dao Heng Securities Limited 12th Floor 0.70% 2,264,703
The Center
99 Queen's Road Central
Hong Kong
Facsimile No.: (852) 2285 3150
KGI Capital Asia Limited 27th Floor 0.70% 2,264,703
Asia Pacific Finance Tower
Citibank Plaza
3 Garden Road
Central
Hong Kong
Facsimile No.: (852) 2970 0080
Kingston Securities Limited Suites 2801-2807 0.70% 2,264,703
One International Finance Centre
1 Harbour View Street
50
PERCENTAGE OF
HONG KONG NUMBER OF
PUBLIC HONG KONG
ADDRESS AND OFFERING OFFER SHARES
NAME CONTACT DETAILS UNDERWRITTEN UNDERWRITTEN
- ----------------------------- --------------------------------- ------------- ------------
Central
Hong Kong
Facsimile No.: (852) 2295 0682
South China Securities 28th Floor 0.70% 2,264,703
Limited Bank of China tower
1 Garden Road
Central
Hong Kong
Facsimile No.: (852) 2521 7779
Sun Hung Kai International Level 12 0.70% 2,264,703
Limited One Pacific Place
88 Queensway
Hong Kong
Facsimile No.: (852) 2822 5062
UOB Asia (Hong Kong) Limited Suite 601 0.70% 2,264,703
6th Floor
Aon China Building
29 Queen's Road Central
Hong Kong
Facsimile No.: (852) 2840 0438
51
SCHEDULE 4
THE WARRANTIES
PART 1
The Company and the Selling Shareholder jointly and severally represent, warrant
and undertake to the Joint Global Coordinators, the Joint Sponsors and the Hong
Kong Underwriters and each of them as follows:
1. All information supplied or disclosed in writing or orally including,
without limitation, the Verification Notes and the answers and documents
referred to therein (and any new or additional information serving to
update or amend the Verification Notes supplied or disclosed in writing
prior to the date of this Agreement) by the Company or any other member
of the Group or any director or employee of any of them to the Joint
Global Coordinators, the Joint Sponsors, the Hong Kong Underwriters, the
Reporting Accountants or the legal and other professional advisers to
the Hong Kong Underwriters for the purposes of the Hong Kong Public
Offering was when given and (except as subsequently superseded, amended
or corrected, and subject as stated in the Prospectus) remains true and
accurate in all material respects and not misleading in any material
respect and all forecasts and estimates so supplied or disclosed were
made in good faith and are honestly and reasonably held, and have been
made after due, careful and proper consideration. All forecasts and
estimates which are contained in the Hong Kong Offering Documents are
based on assumptions referred to in the Hong Kong Offering Documents and
represent reasonable and fair expectations honestly held based on facts
known to such persons (or any of them) and there are no other
assumptions on which such forecasts and estimates are based other than
the assumptions referred to in the Hong Kong Offering Documents or on
which such forecasts ought reasonably to have been based which have not
been made.
2. All statements of fact contained in the Hong Kong Offering Documents are
and will (at the Prospectus Date and the other times when the Warranties
are repeated pursuant to this Agreement) be true and accurate and not
misleading in any material respect and there are no facts known or which
on reasonable enquiry could have been known to the Company, any other
member of the Group and/or the Directors (or any of them) which are not
disclosed in the Hong Kong Offering Documents the omission of which
would make any statement therein materially misleading or which in the
circumstances of the Hong Kong Public Offering are material for
disclosure therein. All expressions of opinion or intention therein are
and will (at the Prospectus Date and the other times when the Warranties
are repeated pursuant to this Agreement) be made on reasonable grounds
and are and will be truly and honestly held by the Directors and are and
will be fairly based and there are and will be no other facts known or
which could on reasonable inquiry have been known to the Directors the
omission of which would make any such statement or expression misleading
in any material
52
respect or which will or should reasonably be considered material in the
context of the Hong Kong Public Offering.
3. The Prospectus, the Formal Notice and the Application Forms contain all
information and particulars required to comply with all statutory and
other provisions (including, without limitation, the Companies Ordinance
and the rules and regulations of the Stock Exchange) so far as
applicable.
4. The Prospectus contains and, when it is issued, will contain all such
information as investors would reasonably require and expect to find
there, for the purpose of making an informed assessment of the assets
and liabilities, financial position, profits and losses, and prospects
of the Company and the rights attaching to the Offer Shares.
5. No information was withheld from the Reporting Accountants for the
purposes of their preparation of the Company Accounts, the Company Pro
Forma Financial Statements, the Reporting Accountants' report contained
in appendix I and other financial information under appendix II to the
Prospectus and all information given to the Reporting Accountants for
such purposes was given in good faith and, to the best of the knowledge,
information and belief of the Company after due, proper and careful
consideration, the factual contents of such report are true and accurate
and no material fact or matter has been omitted.
6. No material information was withheld from the Reporting Accountants for
the purposes of their review of all forecasts contained in the
Prospectus or their review of the Company's working capital projections
or their review of the Company's financial reporting procedures.
7. Neither the Company nor AMC has sustained since the date of the latest
audited financial statements included in the Prospectus any loss or
interference with its business from fire, explosion, earthquake, flood
or other calamity, whether or not covered by insurance, or from any
labor dispute or court or governmental action, order or decree,
otherwise than as disclosed in the Prospectus, except for the loss or
interference that would not, individually or in the aggregate, have a
material adverse effect on the business, prospects, management,
shareholders' or owners' equity, results of operations or financial
condition of the Company and AMC, taken as a whole ("Material Adverse
Effect"); and, since the date as of which information is given in the
Prospectus, except as disclosed in the Prospectus, there has not been
any (i) material addition, or development involving a prospective
material addition, to the Company's liability for future life
policyholders' benefits, policyholders' contract deposits and other
funds, or reserve for claims and claims adjustment expenses, other than
in the ordinary course of business; (ii) material decrease in the
surplus of the Company or material change in the capital stock or other
ownership interests of the Company or AMC or any material increase in
the long-term debt of the Company and AMC, taken as a whole; or (iii)
material adverse change, or development involving a prospective material
adverse change, in or affecting the business, prospects, management,
shareholders' or owners' equity, results of operations or position,
financial or otherwise, of the Company and AMC, taken as a whole.
53
8. Since the date of the latest audited financial statements included in
the Prospectus, neither the Company nor AMC has (i) entered into or
assumed any material contract, (ii) incurred, assumed or acquired any
material liability (including contingent liability) or other obligation,
(iii) acquired or disposed of or agreed to acquire or dispose of any
business or any other asset material to the Company and AMC taken as a
whole or (iv) entered into a letter of intent or memorandum of
understanding (or announced an intention to do so) relating to any
matters identified in clauses (i) through (iii) above, except in the
ordinary course of business or as disclosed in the Prospectus.
9. Except as disclosed in the Prospectus, subsequent to the date as of
which information is given in the Prospectus, the Company has not
purchased any of its outstanding capital stock, nor declared, paid or
otherwise made any dividend or distribution of any kind on its capital
stock, nor transferred or distributed any cash or other assets to the
Selling Shareholder or any of its subsidiaries.
10. The Company has been duly incorporated and is validly existing as a
joint stock company with limited liability and in good standing under
the laws of the PRC, with full legal right, power and authority
(corporate and other), as authorized by the PRC government, to own, use,
lease and operate its properties, conduct its business in the manner
presently conducted and as described in the Prospectus, and is duly
qualified to transact business in each jurisdiction in which it conducts
any business and duly qualified to own, use, lease and operate its
properties in each jurisdiction in which it owns or leases properties
and such qualification is required, or is and will be subject to no
material liability or disability by reason of the failure to be so
qualified in any such jurisdiction; each of the Articles of Association,
the business license, the insurance business permit and other
constituent documents of the Company complies with all applicable
requirements of PRC law, including but not limited to the PRC Company
Law and the PRC Insurance Law, and each is in full force and effect; and
the Selling Shareholder has been duly established as a state-owned
enterprise.
11. Other than AMC, the Company does not have any other subsidiaries,
whether incorporated or established in the PRC or elsewhere. AMC has
been duly incorporated or established and is validly existing and in
good standing under the laws of the PRC with full legal right, power and
authority (corporate and other), as authorized by the PRC government, to
own, use, lease and operate its properties, conduct its business in the
manner presently conducted and, if such manner is described in the
Prospectus, as described in the Prospectus, and is duly qualified to
transact business in each jurisdiction in which it conducts any business
and duly qualified to own, use, lease and operate its properties in each
jurisdiction in which it owns or leases properties and such
qualification is required, or is and will be subject to no material
liability or disability by reason of the failure to be so qualified in
any such jurisdiction; each of the Articles of Association, the business
license, the insurance business permit (where applicable) and other
constituent documents of AMC complies with all applicable requirements
of PRC law, including but not limited to the PRC Company Law and the PRC
Insurance Law, and each is in full force and effect.
54
12. AMC is a legal person with limited liability and the liability of the
Company in respect of equity interests held in AMC is limited to its
investment therein. All of the outstanding shares of capital stock of,
or equity interests in, AMC have been duly authorized and are validly
issued, fully paid and non-assessable and, except as described in the
Prospectus, are owned directly by the Company, free and clear of all
liens, charges, restrictions upon voting or transfer or any other
encumbrances, equities or claims.
13. Except as described in the Prospectus, each of the Company and AMC has
valid title to, or valid leasehold interests in, all of the real
properties and assets that it purports to own and valid title to all
personal properties and assets that it purports to own, in each case
free and clear of all liens, charges, encumbrances, equities, claims,
defects, options or restrictions, except such as would not, individually
or in the aggregate, have a Material Adverse Effect. Except as described
in the Prospectus, each material lease to which the Company or AMC is a
party is legal, valid, binding and enforceable in accordance with its
terms against the other parties thereto, and no default (and, to the
Company's best knowledge, no event which, with notice or lapse of time
or both, would constitute a default) by the Company or AMC which has or
is likely to have a Material Adverse Effect has occurred and is
continuing under any such lease. Except as described in the Prospectus,
if the Selling Shareholder is the lessor under any such lease, the
Selling Shareholder has valid title to, or unfettered ability to grant,
and has granted valid leasehold interests in (and for the terms stated
therein) the real properties and assets that are the subject of such
lease. Except as described in the Prospectus, each of the Company and
AMC has obtained all land-use rights and rights of way in respect of the
real properties, which are required to conduct its business and to which
it holds title, free and clear of all encumbrances and defects, except
such as are not material and do not materially interfere with the use
made and proposed to be made of such property by the Company or AMC, as
the case may be, and all such land-use rights and rights of way are
legal, valid, binding and enforceable in accordance with the terms of
their establishment, except such as are not material and do not
materially interfere with the use made and proposed to be made of such
property by the Company or AMC, as the case may be. Neither the Company
nor AMC owns, operates, manages or has any other right or interest in
any other material real property of any kind, except for the real
property described in the property valuation report set out in appendix
V to the Prospectus.
14. The Company has the registered capital as set forth in the Prospectus,
and all of the issued shares of capital stock of the Company (i) have
been duly authorized, (ii) are validly issued, fully paid and
non-assessable, (iii) were not issued in violation of any preemptive or
similar rights and (iv) conform in all material respects to the
description thereof contained in the Prospectus. There are no
outstanding securities issued by the Company convertible into or
exchangeable for, rights, warrants or options to acquire from the
Company, or obligations of the Company to issue, H Shares or any other
capital stock of the Company except pursuant to this Agreement and the
International Underwriting Agreement. There are no outstanding rights,
warrants or options to acquire, or
55
instruments or securities convertible into or exchangeable for, any
shares of capital stock of, or direct interests in, AMC.
15. The H Shares to be issued and sold by the Company to the Hong Kong
Underwriters hereunder (in the case of under-subscription in the Hong
Kong Public Offering) and under the International Underwriting Agreement
and the H Shares to be sold by the Selling Shareholder hereunder have
been duly and validly authorized, and, when issued, in the case of the H
Shares to be issued and sold by the Company, and delivered against
payment therefor pursuant to this Agreement, as applicable, will be duly
and validly issued and delivered and fully paid and non-assessable; the
H Shares and the ADSs representing such H Shares conform in all material
respects to the descriptions thereof contained in the Hong Kong Offering
Documents, including but not limited to the descriptions under the
section entitled "Structure of the Global Offering" in the Prospectus;
and, except as described in the Prospectus, there are no restrictions on
subsequent transfers of the H Shares or the ADSs under the laws of the
PRC, Hong Kong or the United States.
16. The ADSs will at the time of issue have been duly approved for listing,
subject to official notice of issuance, on the New York Stock Exchange,
Inc. under the symbol "LFC". The Offer Shares have been approved in
principle for listing on the Stock Exchange under the stock code "2628".
17. Each of the Company, AMC and the Selling Shareholder is duly organized,
and each of the Company and the Selling Shareholder is licensed as a
nationwide life insurance company in the PRC and is duly licensed or
authorized as an insurer in each of the provinces, municipalities and
autonomous regions in the PRC in which it conducts any insurance
business; each of the Company, AMC and the Selling Shareholder has all
approvals, orders, consents, authorizations, licenses, certificates,
clearances, permits, registrations and qualifications (collectively, the
"Approvals") of and from all governmental and insurance regulatory
authorities necessary to conduct its business as described in the
Prospectus, and there is no pending or, to the knowledge of the Company
and the Selling Shareholder, threatened action, suit, proceeding or
investigation that could reasonably be expected to lead to the
revocation, termination or suspension of any such Approval, except as
disclosed in the Prospectus or where the failure to be so duly licensed
or authorized would not, individually or in the aggregate, have a
Material Adverse Effect.
18. This Agreement, the Receiving Bankers' Agreements and the Registrar's
Agreement has been (or will when executed have been) duly authorized,
executed and delivered by the Company, and constitutes a legal, valid
and binding agreement of the Company, enforceable in accordance with its
terms, subject as to enforceability to bankruptcy, insolvency,
reorganization, moratorium and similar laws of general applicability
relating to or affecting creditors' rights and to general equity
principles.
19. All Approvals of or with any insurance regulatory agency, any national,
provincial, municipal, local, foreign or other governmental authority,
agency or
56
body, any self-regulatory organization or any court or other tribunal or
any stock exchange authorities (each a "Governmental Agency", and
collectively, "Governmental Agencies") having jurisdiction over the
Company or AMC or the Selling Shareholder or any of their properties
required for the deposit of Shares and the issuance of ADSs in respect
thereof, and for the authorization, execution and delivery by the
Company and the Selling Shareholder, as the case may be, of this
Agreement, the Receiving Bankers' Agreements, the Registrar's Agreement
and the Corporate Placing Agreements, and for the issuance and sale by
the Company, and the sale by the Selling Shareholder, of the H Shares or
ADSs, as the case may be, to investors have been obtained or made (or
will have been prior to Closing) and are (or will be at such time) in
full force and effect.
20. Each of the Company, AMC, the Selling Shareholder and its subsidiaries
has all necessary Approvals of or from, and has made all filings,
registrations and declarations (collectively, the "Filings") with, all
Governmental Agencies necessary to (i) own, lease, license and use its
properties and assets and to conduct its business as in the manner
described in the Prospectus, and (ii) use the proceeds to be received by
the Company from the Global Offering, without restriction in the manner
contemplated by the Prospectus, except as disclosed in the Prospectus or
where the failure to make such filings, registrations and declarations
would not, individually or in the aggregate, have a Material Adverse
Effect; such Approvals contain no restrictions or conditions not
described in the Prospectus, except as disclosed in the Prospectus or
where such restrictions or conditions would not, individually or in the
aggregate, have a Material Adverse Effect, and all Approvals and all
Filings are in full force and effect and neither the Company nor the
Selling Shareholder nor any of their respective subsidiaries has
received any notice of any event, inquiry, investigation or proceeding
that would reasonably be expected to result in the suspension,
revocation or limitation of any such Approval or otherwise impose any
limitation on the conduct of the business of the Company or the Selling
Shareholder or any of their respective subsidiaries.
21. Neither the Company nor AMC, nor the Selling Shareholder nor any of its
subsidiaries, is, in any respect, in violation of any applicable law,
rule, regulation, order, ordinance, judgment, decree, whether national,
provincial, municipal or local, domestic or foreign, including, without
limitation, any insurance laws and regulations of its respective
jurisdiction of incorporation and the insurance laws and regulations of
other jurisdictions which are applicable to it, except where such
violation would not, individually or in the aggregate, have a Material
Adverse Effect.
22. Save as disclosed in the Prospectus, all dividends and other
distributions that may be declared and payable on the shares of capital
stock of the Company in Renminbi to the H Share shareholders of the
Company may under the current laws and regulations of the PRC be
converted into foreign currency and may be freely transferred out of the
PRC, and except as described in the Prospectus, all such dividends (i)
will not be subject to withholding or other taxes under the current laws
and regulations of the PRC, (ii) are otherwise free and clear of any
other tax, withholding or deduction in the PRC and (iii) except for
conversion of
57
Renminbi into foreign currency, may be so paid without the necessity of
obtaining any Approval in the PRC.
23. The issuance and sale of the H Shares and ADSs being delivered under
this Agreement and the International Underwriting Agreement, the
application of the net proceeds from the Global Offering (as set forth
in and contemplated by the Prospectus) and the compliance by the Company
with all of the provisions of this Agreement, the Receiving Bankers'
Agreements and the Registrar's Agreement, and the consummation by the
Company of the transactions contemplated herein and therein, did not,
and will not, conflict with or result in a breach or violation of any of
the terms or provisions of, or constitute a default under, any
indenture, mortgage, deed of trust, loan agreement, note, lease or other
agreement or instrument of any kind whatsoever to which the Company or
AMC is a party or by which the Company or AMC is bound or to which any
of the properties or assets of the Company or AMC is subject, except for
such conflicts, breaches, violations or defaults which would not (i)
individually or in the aggregate, have a Material Adverse Effect, or
(ii) affect the validity of, or have any adverse effect on, the issuance
and sale of the H Shares or the other transactions contemplated
hereunder; and such actions did not, and will not, result in any
violation of the provisions of (x) the Articles of Association, business
licenses or other constituent documents of the Company or AMC or (y) any
law or statute or any rule, regulation, judgment, order, decree or
Approval of any Governmental Agency having jurisdiction over the Company
or AMC or any of their properties, except, in the case of (y), as would
not (i) individually or in the aggregate, have a Material Adverse
Effect, or (ii) affect the validity of, or have any adverse effect on,
the issuance and sale of the H Shares and ADSs and the other
transactions contemplated hereunder and under the International
Underwriting Agreement; and no Approval with any such Governmental
Agency is required for the issuance and sale of the H Shares, and the
consummation by the Company of the transactions contemplated herein and
therein, except such Approvals as have been obtained and are in full
force and effect and copies of which have been furnished to the Joint
Global Coordinators.
24. Neither the Company nor AMC is (i) in violation of its Articles of
Association, business license, insurance business permit (where
applicable) or other constituent documents, or (ii) in default (or is
aware of an event which, with notice or the passage of time or both,
would result in a default) in the performance or observance of any
obligation, agreement, covenant or condition contained in any contract,
indenture, mortgage, loan agreement, note, lease or other agreement or
instrument to which it is a party or by which it may be bound or to
which any of its properties may be subject except, in the case of (ii)
only where such violation or default would not, individually or in the
aggregate, have a Material Adverse Effect and would not affect the
validity of, or have any adverse effect on, the issuance and sale of the
H Shares and ADSs or the other transactions contemplated hereunder and
under the International Underwriting Agreement.
25. Except as described in the Prospectus, no stamp or other issuance or
transfer taxes or duties and no capital gains, income, withholding or
other taxes are
58
payable by or on behalf of the Company, AMC or the Selling Shareholder
to the PRC or Hong Kong or the United States or any political
subdivision or taxing authority thereof or therein in connection with
(i) the creation, allotment and issuance of the H Shares, (ii) the
deposit of H Shares by the Company and the Selling Shareholder in the
form of the ADSs, (iii) the sale and delivery by the Company and the
Selling Shareholder of the H Shares and the ADSs to or for the
respective accounts of the Underwriters in the manner contemplated in
this Agreement and in the International Underwriting Agreement, (iv) the
execution and delivery of this Agreement, the Receiving Bankers'
Agreements and the Share Registrar's Agreement or (v) the sale and
delivery by the Underwriters of the ADSs and the H Shares, as the case
may be, to the initial purchasers thereof, in the manner contemplated in
the Prospectus.
26. Except as described in the Prospectus (and save for taxes on the
Underwriters' income and operation generally), 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 the United States or any
political subdivision or taxing authority thereof or therein in
connection with (i) the creation, allotment and issuance of the H
Shares, (ii) the deposit of H Shares by the Company and the Selling
Shareholder in the form of the ADSs, (iii) the sale and delivery by the
Company and the Selling Shareholder of the H Shares and the ADSs to or
for the respective accounts of the Underwriters in the manner
contemplated in this Agreement and in the International Underwriting
Agreement, (iv) the execution and delivery of this Agreement, the
Receiving Bankers' Agreements, the Registrar's Agreement and the
Corporate Placing Agreements, (v) the sale and delivery by the
Underwriters of the ADSs and the Offer Shares, as the case may be, to
the initial purchasers thereof in the manner contemplated in the
Prospectus.
27. Except as described in the Prospectus, neither the Company nor AMC nor
any of their respective officers, directors or affiliates has taken, or
will take, directly or indirectly, any action designed to or which has
constituted or which might reasonably be expected to cause or result in,
under the Exchange Act or the Securities and Futures Ordinance, in
stabilization or manipulation of the price of any security of the
Company to facilitate the sale or resale of the H Shares or ADSs.
28. The Company, AMC, the Selling Shareholder, certain subsidiaries of the
Selling Shareholder, and certain affiliates of the foregoing
(collectively, the "China Life Group" and each company or other entity
forming a part of the China Life Group individually, a "China Life Group
Member") have completed the Restructuring, which included, among other
things, (i) the entering into by the Company and the Selling Shareholder
of a restructuring agreement (the "Reorganization Agreement"), effective
as of 30th June, 2003, to effect the restructuring of the China Life
Group; (ii) the entering into by the Company and the Selling Shareholder
of a policy management agreement dated 30th September, 2003 (the "Policy
Management Agreement"), under which the Company has agreed to provide
certain insurance policy administration services to the Selling
Shareholder relating to those insurance policies retained by the
59
Selling Shareholder pursuant to the Reorganization Agreement; (iii) the
entering into of two asset management agreements (the "Asset Management
Agreements"), by AMC, one with each of the Company and the Selling
Shareholder respectively under which AMC has agreed to provide
investment management services to the Company and the Selling
Shareholder; (iv) the entering into by the Company and the Selling
Shareholder of a non-competition agreement dated 30th September, 2003
(the "Non-Competition Agreement"), under which the Selling Shareholder
has agreed, among other things and subject to certain exceptions, to
refrain from operating businesses which compete or would compete with
the Company, without the Company's written consent; (v) the entering
into by the Company and the Selling Shareholder of a trademark license
agreement dated 30th September, 2003 (the "Trademark License
Agreement"), under which the Selling Shareholder granted a non-exclusive
license to the Company to use certain trademarks, as described in the
Prospectus; and (vi) the entering into by the Company and the Selling
Shareholder of a 20-year property leasing agreement dated 30th
September, 2003 (the "Property Leasing Agreement"), under which the
Company has agreed to lease from the Selling Shareholder certain
properties as described therein. The Reorganization Agreement, the
Policy Management Agreement, the Asset Management Agreement, the
Non-Competition Agreement, the Trademark License Agreement, the Property
Leasing Agreement and all material documents that were executed by or
issued to the Company, the Selling Shareholder or any Governmental
Agency in connection with the Restructuring are hereinafter collectively
referred to as the "Restructuring Documents" and individually as a
"Restructuring Document". Each Restructuring Document constituting an
agreement is hereinafter referred to as a "Restructuring Agreement" and
collectively as the "Restructuring Agreements".
29. The descriptions of the Restructuring and the legal and other
consequences thereof set forth in the Prospectus under the sections
entitled "The Restructuring" and "Relationship with CLIC" are accurate,
complete and fair in all material respects. Except as described in the
Prospectus, all of the Restructuring have been effected prior to the
date hereof in compliance with all applicable national, provincial,
municipal and local laws in the PRC. The Restructuring constitute legal,
valid and binding transactions completed by the parties to the
Restructuring Agreements.
30. All material Approvals required from or of any Governmental Agency in
connection with the Restructuring and the execution, delivery and
performance of the Restructuring Agreements have been made or obtained
in writing, including, without limitation, all actions necessary for the
approval of the Restructuring by the PRC State Council, the China
Insurance Regulatory Commission (the "CIRC"), the PRC Ministry of
Finance (the "MOF"), the PRC Ministry of Commerce (the "MOC"), the State
Development and Reform Commission (the "SDRC"), the China Securities
Regulatory Commission (the "CSRC"), the State Administration of Industry
and Commerce (the "SAIC") and the State Taxation Administration (the
"STA"), and no such Approval has been withdrawn or is subject to any
condition precedent which has not been fulfilled or performed.
60
31. Each Restructuring Document has been duly authorized, executed and
delivered by the Company, the Selling Shareholder, AMC and other China
Life Group Member that is a party to such Restructuring Document, as the
case may be, prior to the date hereof, and each Restructuring Agreement
constitutes a legal, valid and binding agreement of the Company, the
Selling Shareholder, AMC and China Life Group Member that is a party to
such Restructuring Agreement, as the case may be, enforceable in
accordance with its terms, subject as to enforceability to bankruptcy,
insolvency, reorganization, moratorium and similar laws of general
applicability relating to or affecting creditors' rights and to general
equity principles.
32. The Restructuring and the execution by the Company, AMC, the Selling
Shareholder or the other China Life Group Members of each Restructuring
Document to which it is a party and the delivery by each of the Company,
AMC, the Selling Shareholder and such other China Life Group Members of,
and the performance by each of the Company, AMC, the Selling Shareholder
and such other China Life Group Members of its obligations under, each
Restructuring Document to which it is a party and the consummation of
the Restructuring does not and will not conflict with, or result in a
breach or violation of, any of the terms or provisions of, or constitute
a default under, any indenture, mortgage, deed of trust, loan agreement,
note, lease or other agreement or instrument to which the Company or AMC
or the Selling Shareholder or any of the other China Life Group Members
is a party, or by which the Company or AMC or the Selling Shareholder or
any of the other China Life Group Members is bound or to which any of
the property or assets of the Company or AMC or the Selling Shareholder
or any of the other China Life Group Members is subject, that
individually or in the aggregate, is material to the Selling Shareholder
and its subsidiaries, taken as a whole, or to the Company and AMC, taken
as a whole, and such actions did not, and will not, result in any
violation of the provisions of (i) the Articles of Association, business
licenses, insurance business permits (where applicable) or other
constituent documents of the Company or AMC or the Selling Shareholder
or any of the other China Life Group Members or (ii) any law or statute
or any order, rule, regulation, judgment, order or decree of any
Governmental Agency having jurisdiction over the Company or AMC or the
Selling Shareholder or any of the other China Life Group Members or any
of their properties, except, in the case of (ii) above, for such
violations which would not individually or in the aggregate, (x) have a
Material Adverse Effect, or (y) affect the valid and binding nature of
the Restructuring or any Restructuring Document.
33. In connection with the Restructuring, the Selling Shareholder has
legally and validly transferred to the Company (i) all long-term
insurance policies (policies having a term of more than one year from
the date of issuance) issued on or after 10th June, 1999, having policy
terms approved by or filed with the CIRC on or after 10th June, 1999 and
either (A) recorded as a long-term insurance policy as of 30th June,
2003 in a database attached to the Reorganization Agreement as an annex
or (B) having policy terms for group supplemental medical insurance
(fund type), (ii) stand-alone short-term policies (policies having a
term of one
61
year or less from the date of issuance) issued on or after 10th June,
1999 and (iii) all riders supplemental to the policies described in
clauses (i) and (ii) above, together with those reinsurance contracts
specified in an annex to the Reorganization Agreement (collectively, the
"Transferred Policies"). All insurance policies written by the Selling
Shareholder and issued on or before 30th June, 2003 (collectively, the
"Non-Transferred Policies") were legally and validly retained by the
Selling Shareholder. All new insurance policies written after 30th June,
2003 by or on behalf of the Company are the policies of the Company,
and, except as described in the Prospectus, no insurance policies have
been written for the account of the Selling Shareholder after 30th June,
2003. Except as disclosed in the Prospectus, the transfer of the
Transferred Policies from the Selling Shareholder to the Company is
legal, valid and binding against each and every policyholder of the
Transferred Policies, and in particular, legal, valid and binding
consents of the policyholders have been duly obtained with respect to
the transfer of each of the Transferred Policies, including, but not
limited to, consent from each policyholder who acquired a Transferred
Policy written by the Selling Shareholder and issued on or after 28th
May, 2003; and no holder of a Transferred Policy has any valid claim
against the Selling Shareholder or the Company arising out of or in
connection with the Restructuring or any of them. No consent of any
holder of a policy written by the Selling Shareholder which is not a
Transferred Policy is or was necessary in connection with the transfer
of the Transferred Policies or any of the other Restructuring and no
holder of any such policy has any valid claim against the Selling
Shareholder or the Company arising out of or in connection with the
Restructuring or any of them. No claim by any holder of a policy written
by the Selling Shareholder or the Company arising out of or in
connection with the Restructuring or any of them is pending or, to the
knowledge of the Company and the Selling Shareholder, threatened.
Neither the Company nor AMC is liable for any debts or other liabilities
of the Selling Shareholder not specifically assumed by the Company in
the Restructuring. The Company and AMC do not and will not have any
payment obligations or other liabilities to policyholders, of or
otherwise in respect of, those policies that were retained by the
Selling Shareholder in the Restructuring.
34. A special purpose fund to satisfy the payment of benefits and claims
obligations arising from the Non-Transferred Policies, as well as
expenses incurred in operating the special purpose fund, including
third-party management fees and professional fees and such other
purposes as the management committee of the fund may agree has been or
will be established by the Selling Shareholder and the MOF and continues
or will continue to validly exist. The MOF has the authority to issue
its approval regarding the special purpose fund, the approval is valid
and effective and neither the Company nor the Selling Shareholder has
any reason to believe that the MOF will revoke the approval. The
descriptions of the fund and the MOF's approval thereof contained in the
Prospectus are fair and accurate in all material respects.
35. Except as disclosed in the Prospectus or such as would not, individually
or in the aggregate, have a Material Adverse Effect, all of the Selling
Shareholder's exclusive sales agents, of whom the total number was
approximately 650,000 as
62
of 30th June, 2003, have legally and validly (i) entered into sales
agency contracts with the Company and (ii) terminated their respective
sales agency contracts with the Selling Shareholder.
36. Each agreement of the Selling Shareholder relating to any bancassurance
arrangement, non-dedicated agency, dedicated insurance agency, insurance
brokerage company and other intermediary which was in existence prior to
the Restructuring has been legally and validly transferred to the
Company and each necessary consent of each other party to each such
agreement has been obtained and is legal, valid and binding, except for
such failures to effect a valid transfer or obtain a necessary consent
as would not, individually or in the aggregate, have a Material Adverse
Effect and which, to the extent material, are described in the
Prospectus.
37. In connection with the Restructuring, all consents, approvals and
authorizations have been legally, validly and unconditionally obtained
in writing from third parties under any joint venture agreements,
distribution agreements or arrangements with any commercial banks, post
offices, savings cooperatives, travel agencies, hotels, airline sales
counters and insurance brokerage and insurance agency companies, bank
loans, guarantees and all other contracts, where such contracts,
agreements or arrangements purportedly have been transferred or assigned
to the Company, except as disclosed in the Prospectus or as would not,
individually or in the aggregate, have a Material Adverse Effect.
38. Other than the Restructuring Documents and the Restructuring Agreements,
there are no other material documents or agreements, written or oral,
that have been entered into by the Company and the Selling Shareholder
in connection with the Restructuring which have not been previously
provided, or made available, to the Underwriters and, to the extent
material, disclosed in the Prospectus.
39. None of the Company, AMC and the businesses now run by the Company and
AMC, nor, to the knowledge of the Company, any of their respective
officers, directors, supervisors, managers, agents, or employees have,
directly or indirectly, (i) made or authorized any contribution, payment
or gift of funds or property to any official, employee or agent of any
governmental agency, authority or instrumentality in the PRC, Hong Kong
or any other jurisdiction or (ii) made any contribution, payment or gift
of funds or property to any candidate for public office, in either case,
where either the payment or the purpose of such contribution, payment or
gift, after the registration of the H Shares and ADSs under the Exchange
Act, will cause the Company to be in violation of the U.S. Foreign
Corrupt Practices Act of 1977, as amended, or the rules and regulations
promulgated thereunder, if applicable.
40. There are no legal, governmental or arbitral proceedings pending or, to
the knowledge of the Company, threatened to which the Company or AMC is
a party (including, without limitation, any proceeding challenging the
effectiveness or validity of the Restructuring) or to which any of the
properties of the Company or AMC is subject that are required to be
described in the
63
Prospectus and are not so described or any statutes, regulations,
contracts or other documents that are required to be described in the
Prospectus are not described as required.
41. Except as disclosed in the Prospectus, neither the Company nor AMC has
any material obligations to provide housing benefits, severance or
retirement benefits, death or disability benefits or other actual or
contingent employee benefits or perquisites to any (i) present or past
employees, whether permanent or temporary, of the Company or AMC, (ii)
present or past employees of other China Life Group Members, (iii)
present or past employees of the Selling Shareholder, (iv) parties that
transferred assets or businesses to the Company and AMC in connection
with the Restructuring or (v) any Governmental Agency.
42. All material guarantees of indebtedness of the Company or AMC are in
full force and effect, and there are no outstanding material guarantees
or contingent payment obligations of the Company or AMC in respect of
indebtedness of any party that is not the Company or AMC, except as
disclosed in the Prospectus. No indebtedness (actual or contingent) and
no contract or arrangement (other than employment contracts or
arrangements) is outstanding between (i) the Company or AMC and (ii) any
director or officer of the Company or AMC or any person connected
(within the meaning of the Hong Kong Listing Rules) with such director
or officer (including but not limited to his or her spouse, infant,
child or any company or undertaking in which he or she holds a
controlling interest).
43. There are no material relationships or transactions between the Company
or AMC, on one hand, and their respective affiliates, officers and
directors or their shareholders, customers or suppliers, on the other
hand, which are not disclosed or reflected in the Prospectus; and the
statements in the Prospectus in this regard are true and correct in all
material respects, and do not omit anything necessary to make such
statements, in light of the circumstances under which they are made, not
misleading.
44. Except as disclosed in the Prospectus or such as would not, individually
or in the aggregate, have a Material Adverse Effect, the Company and AMC
own or have valid licenses in full force and effect for the lengths of
time indicated in the Prospectus or otherwise have the legal right to
use, or can acquire on reasonable terms, all material 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 Life" name and logo) currently employed by
them in connection with the businesses currently operated by them, and
neither the Company nor AMC has received any notice of infringement of
or conflict with asserted rights of others with respect to any of the
foregoing which, individually or in the aggregate, if the subject of an
unfavorable decision, ruling or finding, would result in any Material
Adverse Effect to the Company's and the Selling Shareholders' knowledge
after due investigation; in conducting its business activities, none of
the Company or AMC has infringed any patent, copyright, title,
trademark, service mark, trade name or other intellectual
64
property rights already registered by a third party in the PRC or
elsewhere, other than such infringements which, either individually or
in the aggregate, would not have a Material Adverse Effect.
45. The Company and AMC maintain insurance of the types and in the amounts
that the Company reasonably believes to be adequate for their respective
businesses. The Company does not have any reason to believe that it will
not be able to renew its existing insurance coverage from similar
insurers as may be necessary to continue the businesses of the Company
and AMC at a cost that would not materially and adversely affect the
business, prospects, management, shareholders' or owners' equity,
results of operations of the Company and AMC, taken as a whole.
46. All returns, reports or filings which ought to have been made by or in
respect of the Company and AMC for taxation purposes have been made and
all such returns are up to date, correct and on a proper basis in all
material respects, and, to the knowledge of the Company after due
investigation, are not the subject of any dispute with the relevant
revenue or other appropriate authorities; the provisions included in the
audited accounts as set out in the Prospectus include appropriate
provision required under the HK GAAP for all taxation in respect of
accounting periods ended on or before the accounting reference date to
which such audited accounts relate for which the Company or AMC was then
or might reasonably be expected thereafter to become or have become
liable; neither the Company nor AMC has received notice of any tax
deficiency that has been asserted or assessed against the Company or AMC
which, if so assessed, would or would be likely to have a Material
Adverse Effect.
47. No material labor dispute, work stoppage, slow down or other conflict
with the employees of the Company or AMC exists or, to the Company's
knowledge, is imminent or is threatened. No material labor dispute, work
stoppage, slow down or other conflict involving the sales agents of the
Company or AMC exists, is imminent or is threatened.
48. The statements set forth in the Prospectus (i) under the section
entitled "Structure of the Global Offering" and Appendix VIII - "Summary
of Articles of Association", insofar as they purport to constitute a
summary of (x) the terms of the Offer Shares and the relevant provisions
of the Articles of Association of the Company and (y) the terms of the
ADSs and the, respectively, and (ii) under Appendix VII - "Summary of
principal legal and regulatory provisions" and Appendix VI - "Taxation
and foreign exchange", insofar as they purport to describe the provision
of laws and documents referred to therein, and under the section
entitled "Underwriting" insofar as they purport to described the
provisions of this Agreement and the International Underwriting
Agreement referred to therein, are accurate, complete and fair in all
material respects.
49. Under the laws of the PRC, none of the Company, AMC nor any of their
properties, assets or revenues are entitled to any right of immunity on
the grounds of sovereignty from any legal action, suit or proceeding,
from set-off or counterclaim, from the jurisdiction of any court, from
services of process, from
65
attachment prior to or in aid of execution of judgment, or from other
legal process or proceeding for the giving of any relief or for the
enforcement of any judgment. The irrevocable and unconditional waivers
and agreements of the Company in this Agreement, the International
Underwriting Agreement not to plead or claim any such immunity in any
legal action, suit or proceeding based on this Agreement and the
International Underwriting Agreement are legal, valid and binding under
the laws of the PRC.
50. Except as described in the Prospectus, no holder of any of the H Shares
or ADSs after the completion of the Global Offering will be subject to
liability in respect of any liability or obligation of the Company by
virtue only of the holding of any such H Shares or ADSs. Except as
disclosed in the Hong Kong Offering Documents and except as prohibited
by applicable securities laws in relation to the offering of securities,
there are no limitations on the rights of holders of the H Shares or the
ADSs to hold, vote or transfer their securities.
51. The Company is not, and after giving effect to the offering and sale of
the ADSs and H Shares and the application of the proceeds thereof as
described in the Prospectus will not be, required to registered as an
"investment company" as such term is defined in the United States
Investment Company Act of 1940, as amended (the "Investment Company
Act").
52. The Company is not a "passive foreign investment company" ("PFIC")
within the meaning of section 1297 of the United States Internal Revenue
Code of 1986, as amended, for the year ending 31st December, 2003 and
the Company has no plan or intention to conduct its business in a manner
that would reasonably be expected to result in the Company becoming a
PFIC in the future under the current law and regulation.
53. The historical consolidated financial statements and notes thereto, the
summary historical consolidated financial data and notes thereto, and
the selected historical consolidated financial data and notes thereto of
the Company included in the Prospectus were prepared in accordance with
the HK GAAP consistently applied throughout each of the periods
involved, and fairly present the consolidated financial condition and
result of operations of the Group as of the dates and for the periods
presented; and the unaudited pro forma consolidated financial data and
notes thereto and the summary thereof included in the Prospectus were
prepared in accordance with all applicable rules and requirements, the
Company's assumptions provide a reasonable basis for presenting the
significant effects directly attributable to the events described
therein, in the unaudited pro forma statement of income for the year
ended 31st December, 2002 and the six-months ended 30th June, 2003; pro
forma adjustments give appropriate effect to those assumptions, and the
calculations made to determine such pro forma amounts reflect the proper
application of those adjustments to the historical financial statement
amounts. No other financial statements, schedules or pro forma financial
information of the Group are required by any applicable rules and
regulations to be included in the Prospectus.
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54. All statistical information (except for such statistical information
which is disclosed in the Prospectus as having come from a source other
than the Company, which source the Company confirms it believes to be
reliable), including numbers of insurance policies and annuity
contracts, exclusive sales agents and distribution outlets, included in
the Prospectus has been derived from the records of the Group using
systems and procedures which incorporate adequate safeguards to ensure
that the information, in all material respects, is accurate and complete
and presents fairly the information shown therein.
55. The Reporting Accountants are an independent public accountant within
the meaning of all applicable published rules and regulations and comply
with the guidelines on independence issued by the Hong Kong Society of
Accountants; each of the Company and AMC has devised and maintains a
system of internal accounting controls sufficient to provide reasonable
assurance that (i) transactions are executed in accordance with
management's general or specific authorizations; (ii) transactions are
recorded as necessary to permit preparation of financial statements and
notes thereto in conformity with the HK GAAP and to maintain
accountability for assets; (iii) access to assets is permitted only in
accordance with management's general or specific authorization; (iv) the
recorded accountability for assets is compared with existing assets at
reasonable intervals and appropriate actions taken with respect to any
differences and (v) each of the Company and AMC has made and kept books,
records and accounts which, in reasonable detail, accurately and fairly
reflect the transactions and dispositions of assets of such entity and
provide a sufficient basis for the preparation of consolidated financial
statements and notes thereto in accordance with the HK GAAP; and the
management information and accounting control system of the Company and
AMC has been in operation for at least six months during which no
material difficulty with regard to any of the matters referred to in (i)
through (v) above has been experienced.
56. All prospective and unaudited financial information about the Group and
included in the Prospectus (the "Prospective Financial Information") (i)
was made by the Company after due and proper consideration and careful
enquiry and represents reasonable and fair expectations honestly held
based on facts known to the Company and the assumptions stated in the
Prospectus, and (ii) has been properly compiled based on the assumptions
described therein. The assumptions and methods used in the preparation
of the Prospective Financial Information (A) are all those that the
Company believes are significant in estimating the total operating
revenue and the net income of the Company and the net income per share
of the Company for the year ending 31st December, 2003, and (B) reflect,
for the year ending 31st December 31, 2003, the Company's reasonable
estimate of the events, contingencies and circumstances described
therein; and the Prospective Financial Information presents the
Company's reasonable estimate, as of the date hereof, of the net income
of the Company and the net income per share of the Company for the year
ending 31st December, 2003.
57. The calculations of embedded value as of 30th June, 2003 included in the
Prospectus have been properly effected based on the assumptions and
estimates
67
described therein. The estimates and assumption (or, where a range of
assumptions is used, the range of assumptions chosen) upon which such
calculations are based represent reasonable and fair expectations
honestly held (or, where a range of assumptions is used, represent a
reasonable range of assumptions in the circumstances) based on facts
known to the Company.
58. The section entitled "Financial Information" in the Prospectus
accurately and fully describes (i) all material trends, demands,
commitments, events, uncertainties and risks, and the potential effects
thereof, that the Company believes would materially affect liquidity and
are reasonably likely to occur; and (ii) all off-balance sheet
transactions, arrangements, and obligations, including, without
limitation, relationships with unconsolidated entities that are
contractually limited to narrow activities that facilitate the transfer
of or access to assets to the Group, such as structured finance entities
and special purpose entities (collectively, "off-balance sheet
arrangements") that are reasonably likely to have a material effect on
the liquidity of the Group, taken as a whole, or the availability
thereof or the requirements of the Group for capital resources. As used
in the preceding sentence, the term "reasonably likely" refers to a
disclosure threshold lower than "more likely than not". The section
entitled "Financial Information" in the Prospectus fairly and accurately
describes accounting policies which the Company believes are the most
important in the portrayal of the Company's financial condition and
results of operations and which require management's most difficult,
subjective or complex judgments ("critical accounting policies").
59. Save as disclosed in the Prospectus, none of the Directors (or any of
their spouses or infant children or any company in which any of them has
a controlling interest) is or will be materially interested in any
agreement or arrangement with any member of the Group which is
subsisting at the Prospectus Date and which is significant in relation
to the business of the Group.
60. All the interests of each of the Directors in the securities of the
Company or any associated corporation (within the meaning of the
Securities and Futures Ordinance) which will be required to be notified
to the Company and the Stock Exchange pursuant to Divisions 7 and 8 of
Part XV of such Ordinance, or which will be required pursuant to section
352 of such Ordinance to be entered in the register referred to therein,
or which will be required to be notified to the Company and the Stock
Exchange pursuant to the Model Code for Securities Transactions by
Directors of Listed Companies in the Hong Kong Listing Rules, in each
case once the H Shares are listed, and in any assets which, in the two
years preceding the Prospectus Date, have been acquired or disposed of
by, or leased to, the Company or any of its subsidiaries or are proposed
to be acquired, disposed of by, or leased to, the Company or any of its
subsidiaries, are fully and accurately disclosed in the Prospectus.
61. None of the Company, AMC or any of the businesses now run by the Company
or AMC does any business with the Governments of Burma (Myanmar), Cuba,
Iran, Libya or Sudan or any agent, "Specially Designated National" or
"Blocked Person" (identified in 31 CFR, Subtitle B, Chapter V, Appendix
1) thereof or
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with any other person subject to sanctions under any of the foreign
assets control regulations of the United States Treasury Department (31
CFR, Subtitle B, Chapter V, as amended) or any enabling legislation or
executive order relating thereto, or any person or entity in those
countries or with those persons, or perform contracts in support of
projects in or for the benefit of those countries or those persons.
62. Except as disclosed in the Prospectus, there are no contracts,
agreements or understandings between the Company and any person or
entity that would give rise to any claim against the Company or any
Underwriter for brokerage commissions, finder's fees or other payments
in connection with the Global Offering.
63. AMC is currently prohibited, directly or indirectly, from (i) repaying
to the Company any loans or advances to it from the Company; or (ii)
paying any dividends or other distributions to the Company declared and
payable on the Company's direct or indirect equity interest in it.
64. In respect of the connected transactions (as defined under the Hong Kong
Listing Rules) with the Selling Shareholder (the "Connected
Transactions"):
(a) The statements contained in the Prospectus relating to the
Connected Transactions are true, accurate and complete and there
are no other facts known or which could on reasonable enquiry
have been known to the Directors, the omission of which would
make any such statements misleading, and there are no other
Connected Transactions which have not been disclosed in the
Prospectus;
(b) All information (including but not limited to historical
figures) and documentation provided by the Company to the Joint
Global Coordinators, the Joint Sponsors and the Hong Kong
Underwriters are true, accurate and complete in all material
respects and there is no other information or documents which
have not been provided the result of which would make the
information and documents so received misleading;
(c) The transactions referred to in the section entitled
"Relationship with CLIC" in the Prospectus have been entered
into, and will be carried out, in the ordinary and usual course
of business, on normal commercial terms and are fair and
reasonable insofar as the shareholders of the Company are
concerned and the Directors, including the independent
non-executive Directors, in coming to their views have made, as
they consider, due and proper inquiries and investigations of
such transactions;
(d) Each of the Company and the Selling Shareholder has at all
relevant times complied with and will continue to comply with
the terms of the Connected Transactions disclosed in the
Prospectus for so long as the agreement relating thereto is in
effect, and shall inform the Joint Global
69
Coordinators and the Joint Sponsors promptly should there be any
breach of any such terms either before or after the listing of
the H Shares on the Stock Exchange; and
(e) Each of the Connected Transactions agreements disclosed in the
Prospectus constitutes a legal, valid and binding agreement,
enforceable in accordance with its terms by the relevant member
of the China Life Group against the other party subject, as to
enforceability, to bankruptcy, insolvency, reorganization and
similar laws of general applicability relating to or affecting
creditor rights and to general equitable principles.
65. The Company has filed with the Director-General of Kanto Local Finance
Bureau of the Ministry of Finance of Japan (the "KLFB") a securities
registration statement with respect to the Japanese POWL and amendments
to such securities registration statement pursuant to the Securities and
Exchange Law of Japan; a further amendment to such securities
registration statement in the form heretofore delivered to the Joint
Global Coordinators is proposed to be filed by the Company with the KLFB
promptly after the execution of the International Underwriting Agreement
(such securities registration statement and all such amendments,
collectively, the "Japanese Securities Registration Statement"); the
registration made under the Japanese Securities Registration Statement
will become effective as at the date hereof; and the Japanese Securities
Registration Statement, on the date hereof, (i) conforms in all material
respects to the requirements of Securities and Exchange Law of Japan and
the cabinet orders and ministerial ordinances and other rules and
regulations thereunder (the "Japanese Rules and Regulations"), and (ii)
does not contain any untrue statement of a material fact or omit to
state any material fact required to be stated therein or necessary to
make the statements therein not misleading.
66. The Company has prepared a preliminary prospectus with respect to the
Japanese POWL (the "Japanese Preliminary Prospectus") and intends to
prepare a supplement or supplements to the Japanese Preliminary
Prospectus which together with the Japanese Preliminary Prospectus will
form a final prospectus (the "Japanese Final Prospectus"); and the
Japanese Preliminary Prospectus at the time of issue thereof conformed,
and the Japanese Final Prospectus at the time of issue thereof will
conform, in all material respects to the requirements of the Securities
and Exchange Law of Japan and the Japanese Rules and Regulations, and
the Japanese Preliminary Prospectus at the time of issue thereof did
not, and the Japanese Final Prospectus at the time of issue thereof will
not, contain any untrue statement of a material fact or omit to state
any material fact required to be stated therein or necessary to make the
statements therein not misleading.
67. Since the respective dates as of which information is given in the
Japanese Securities Registration Statement and the Japanese Final
Prospectus, there has not been any material adverse change in the
business, prospects, management, shareholders' or owners' equity,
results of operations or financial condition of the Company and the
Subsidiaries, taken as a whole, or any event which is likely to result
in any such material adverse change.
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68. Any certificate signed by any officer of the Company and delivered to
the Joint Global Coordinators or counsel for the Hong Kong Underwriters
in connection with the Global Offering shall constitute a representation
and warranty hereunder by the Company, as to matters covered thereby, to
each Hong Kong Underwriter.
71
PART 2
The Selling Shareholder further represents, warrants and undertakes to the Joint
Global Coordinators, the Joint Sponsors and the Hong Kong Underwriters and each
of them as follows:
1. It is a state-owned enterprise duly established in the PRC.
2. Each of this Agreement and the Restructuring Agreements to which the
Selling Shareholder is a party has been duly authorized, executed and
delivered by the Selling Shareholder, and constitutes a legal, valid and
binding agreement of the Selling Shareholder, enforceable in accordance
with its terms, subject as to enforceability to bankruptcy, insolvency,
reorganization, moratorium and similar laws of general applicability
relating to or affecting creditors' rights and to general equity
principles.
3. All Approvals of or with any Governmental Agency having jurisdiction
over the Selling Shareholder or any of its properties required for the
deposit of the H Shares in the form of the ADSs by the Selling
Shareholder, for the sale and delivery of the H Shares and the ADSs to
be sold by the Selling Shareholder hereunder and under the International
Underwriting Agreement and for the authorization, execution and delivery
by the Selling Shareholder of this Agreement and the International
Underwriting Agreement have been obtained or made and are in full force
and effect, except as may be required under the United States state
securities or Blue Sky laws or under any laws of jurisdictions outside
the PRC and the United States in connection with the purchase and
distribution of the H Shares and ADSs by or for the account of the
Underwriters; and the Selling Shareholder has full right, power and
authority to enter into this Agreement and the International
Underwriting Agreement and to sell, assign, transfer and deliver the H
Shares to be sold by the Selling Shareholder hereunder and under the
International Underwriting Agreement, in each case free and clear of all
liens, security interests, charges, encumbrances, equities or claims of
any kind.
4. The execution and delivery by the Selling Shareholder of, and the
performance by the Selling Shareholder of its obligations under this
Agreement, the International Underwriting Agreement, the Restructuring
Documents and the consummation of the transactions contemplated
hereunder and thereunder, the sale of the H Shares or ADSs to be sold by
the Selling Shareholder hereunder and under the International
Underwriting Agreement, and the deposit of the Offer Shares in the form
of the ADSs by the Selling Shareholder, did not, and will not contravene
any provision of (i) the Articles of Association, business license, the
insurance business permit or other constituent documents of the Selling
Shareholder, (ii) any law or statute or any rule, regulation, judgment,
order, decree or Approval of any Governmental Agency having jurisdiction
over the Selling Shareholder, (iii) any agreement or other instrument
binding upon the Selling Shareholder, or (iv) any judgment, order or
decree of any Governmental Agency having jurisdiction over the Selling
Shareholder, except, in the case of (iii) and (iv), as would not (x)
individually or in the aggregate, have a Material
72
Adverse Effect, or (y) affect the validity of, or have any adverse
effect on, the issuance and sale of the H Shares and ADSs or the other
transactions contemplated hereunder or under the International
Underwriting Agreement. No Approval is required for the performance by
the Selling Shareholder of its obligations under this Agreement, the
International Underwriting Agreement and the Restructuring Documents,
the sale of the H Shares or ADSs to be sold by the Selling Shareholder
hereunder or under the International Underwriting Agreement, and the
deposit of the Offer Shares in the form of the ADSs by the Selling
Shareholder, except such Approvals as have been obtained and are in full
force and effect and copies of which have been furnished or made
available to the Joint Global Coordinators.
5. The Selling Shareholder has good and valid title to the H Shares and the
ADSs to be sold by the Selling Shareholder hereunder and under the
International Underwriting Agreement, free and clear of all liens,
security interests, charges, encumbrances, equities or claims of any
kind; and, upon delivery of the H Shares and the ADSs and payment
therefor pursuant hereto and thereto, good and valid title to such H
Shares or ADSs, free and clear of all liens, security interests,
charges, encumbrances, equities or claims of any kind, will pass to the
Underwriters, as applicable, and (to the extent described in the
Prospectus) the initial purchasers thereof.
6. Except as described in the Prospectus, neither the Selling Shareholder
nor any of its subsidiaries has taken, or will take, directly or
indirectly, any action which is designed to or which has constituted or
which might reasonably be expected to cause or result in under the
Exchange Act, the Securities and Futures Ordinance, the rules and
regulations of the Stock Exchange or the Hong Kong Listing Rules, in
stabilization or manipulation of the price of any security of the
Company to facilitate the sale or resale of the H Shares or the ADSs.
7. Under the laws of the PRC, none of the Selling Shareholder and its
subsidiaries nor any of their properties, assets or revenues are
entitled to any right of immunity on the grounds of sovereignty from any
legal action, suit or proceeding, from set-off or counterclaim, from the
jurisdiction of any court, from services of process, from attachment
prior to or in aid of execution of judgment, or from other legal process
or proceeding for the giving of any relief or for the enforcement of any
judgment. The irrevocable and unconditional waivers and agreements of
the Selling Shareholder in this Agreement not to plead or claim any such
immunity in any legal action, suit or proceeding based on this Agreement
are legal, valid and binding under the laws of the PRC.
8. Except as disclosed in the Prospectus, the H Shares delivered by the
Selling Shareholder will be freely transferable by the Selling
Shareholder; and, except as described in the Prospectus, there are no
restrictions on subsequent transfers of the shares under the laws of the
PRC, Hong Kong or the United States.
9. Except as disclosed in the Prospectus, there are no contracts,
agreements or understandings between the Selling Shareholder and any
person that would give rise to a valid claim against the Selling
Shareholder or any Underwriter for a
73
brokerage commission, finder's fee or other like payment in connection
with the Global Offering.
10. Any certificate signed by any officer of the Selling Shareholder and
delivered to the Joint Global Coordinators or counsel for the Hong Kong
Underwriters in connection with the Global Offering shall constitute a
representation and warranty hereunder by the Selling Shareholder, as to
matters covered thereby, to each Hong Kong Underwriter.
To the extent any Warranties in this schedule 4 are also included in
substantially similar terms in the International Underwriting Agreement, but the
terms or scope are modified or qualified in the form contained in the
International Underwriting Agreement, the same modifications or qualifications
shall be deemed to apply to the relevant Warranties under this Agreement, all of
which shall be interpreted accordingly with effect from the date of this
Agreement.
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SCHEDULE 5
THE CONDITIONS PRECEDENT DOCUMENTS
PART A
1. LEGAL DOCUMENTS
(A) Four certified copies of the resolutions of the shareholders of the
Company referred to in the paragraph headed "Resolutions of our
shareholder" in appendix IX to the Prospectus.
(B) Four certified copies of all resolutions referred to in paragraph F of
the recitals to this Agreement
(C) Four certified copies of the resolutions of the governing body of CLIC
or other lawful authorisation document (which incorporates, as
appropriate, a power of attorney), inter alia:
(i) approving and authorising the execution on behalf of CLIC of
this Agreement together with all other agreements and documents
necessary for the Global Offering; and
(ii) approving its sale of ADSs (or H Shares as the case may be).
(D) Four certified copies (with four signed originals to follow as soon as
possible) of each of the Receiving Bankers' Agreements.
(E) Four certified copies of the Registrar's Agreement.
(F) Four certified copies of the EIPO Agreement between the Company and
Hongkong Clearing.
(G) Four certified copies of each of the contracts of the Directors and the
Company's supervisors pursuant to the requirements of paragraphs 48 and
49, respectively, of Part I of Appendix 7 to the Hong Kong Listing
Rules.
2. DOCUMENTS RELATING TO THE HONG KONG PUBLIC OFFERING
(A) Eight printed copies of each of the Prospectus and the Application
Forms, each duly signed by the Directors or their respective duly
authorised attorneys and, if signed by their respective duly authorised
attorneys, certified copies of the relevant power of attorney or
authorisation document.
(B) One original of the Verification Notes signed by or on behalf of each
person to whom responsibility is therein assigned.
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(C) Four signed originals of the accountants' report dated the Prospectus
Date issued by the Reporting Accountants, the text of which is contained
in appendix I to the Prospectus.
(D) Four certified copies of each of the Company Accounts and the Company
Pro Forma Financial Statements.
(E) Four signed originals of each of the two letters both dated the
Prospectus Date issued by the Reporting Accountants in connection with
the forecast for the year ending 31st December, 2003, and the sum of pro
forma profit for the nine months ended 30th September, 2003 and forecast
profit for the three months ending 31st December, 2003, respectively,
the texts of both which are contained in appendix IV to the Prospectus.
(F) Four certified copies of each of the two profit forecast memoranda and
the working capital forecast memorandum issued to the Reporting
Accountants and signed by the Directors.
(G) Four original letters dated the Prospectus Date from the Reporting
Accountants addressed to the Hong Kong Underwriters confirming, inter
alia, the indebtedness statement contained in the Prospectus and
commenting on the statement contained in the Prospectus as to the
sufficiency of working capital and on the other financial information
set out in the Prospectus, such letter to be in the form previously
approved by the Joint Global Coordinators on behalf of the Hong Kong
Underwriters.
(H) Four signed originals of the actuarial consultants' report dated the
Prospectus Date issued by the Actuarial Consultants, the text of which
is contained in appendix III to the Prospectus.
(I) Four signed originals of the property valuation report dated the
Prospectus Date issued by Sallmanns (Far East) Limited, the summary text
of which is contained in appendix V to the Prospectus.
(J) Four signed originals of the letter, summary of values and valuation
certificate dated the Prospectus Date issued by Sallmanns (Far East)
Limited, the text of which is contained in appendix V to the Prospectus.
(K) A certified copy of each of the letters referred to in the paragraph
headed "Other information - Consents and qualifications of experts" in
appendix IX to the Prospectus containing consents to the issue of the
Prospectus with the inclusion of references to the respective parties'
names, and where relevant their reports, letters and valuation
certificates in the form and context in which they are included.
(L) Four certified copies of letter from the Hong Kong Companies Registry
confirming that the documents referred to in the paragraph headed
"Documents delivered to and registered with the Registrar of Companies"
in appendix X to
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the Prospectus have been delivered to the Registrar of Companies in Hong
Kong pursuant to section 342C of the Companies Ordinance.
(M) A certified copy of each of the material contracts referred to in the
paragraph headed "Further information about our business - Summary of
material contracts" in appendix IX to the Prospectus (other than this
Agreement).
(N) Four certified copies of a certificate as to the accuracy of the Chinese
translation of the Hong Kong Offering Documents and given by the
relevant translator.
(O) A certified copy of the listing agreement executed by the Company and
delivered to the Hong Kong Stock Exchange.
3. LEGAL OPINIONS
Facsimile copies (with four signed originals to follow as soon as
possible) of all legal opinions from King & Wood in respect of, inter
alia, the Restructuring, the Company and the Group, various contracts
and operation arrangements of the Group governed under PRC laws and
properties owned and leased by the Group, submitted or required to be
submitted to the Hong Kong Stock Exchange, all in forms satisfactory to
the Global Coordinators.
4. OTHER DOCUMENTS
(A) An original confirmation letter from each Director to the Joint Sponsors
confirming that he has, and an original confirmation letter from the
Company to the Joint Sponsors confirming that the Directors have, read
and understood: (i) the memorandum dated 25th September, 2003 prepared
jointly by Debevoise & Plimpton, Allen & Overy and King & Wood setting
out the differences and similarities between H Shares and ADSs and
between the rights and obligations of holders of H Shares and ADSs, and
(ii) the three memoranda prepared by Debevoise & Plimpton, Allen & Overy
and King & Wood, respectively, setting out the nature of
responsibilities of the Directors under US, Hong Kong and PRC law,
respectively, and that Debevoise & Plimpton, Allen & Overy and King &
Wood have explained the contents of the relevant memoranda to him, such
letters all being dated 26th September, 2003 (other than the letter
issued by Mr. Chau Tak Hay, which is dated 29th September, 2003).
(B) (i) Four certified copies of the responsibility letter signed by
each Director;
(ii) Four certified copies of each of the powers of attorney and
statements of interests signed by each Director; and
(iii) Four certified copies of the statements of interests signed by
each supervisor of the Company.
(C) Four copies of Forms H and I signed by each of the Directors and the
Company's supervisors, respectively, and four certified copies of each
of the following:
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(i) Each of the approval documents referred to in paragraphs A and D
of the recitals to this Agreement (certified as true by a
Director);
(ii) The business licence referred to in paragraph B of the recitals
to this Agreement (certified as true by a Director); and
(iii) The certificate of registration of the Company under Part XI of
the Companies Ordinance.
PART B
Four original Hong Kong comfort letters addressed to the Joint Sponsors as
representatives of the Hong Kong Underwriters from the Reporting Accountants
covering the Hong Kong Public Offering in a form satisfactory to the Joint
Global Coordinators.
PART C
(A) Four original bringdown Hong Kong comfort letters addressed to the Joint
Sponsors as representatives of the Hong Kong Underwriters from the
Reporting Accountants dated as of the date of the Closing, in a form
previously approved by the Joint Global Coordinators.
(B) Four signed originals of the legal opinions from each of King & Wood and
Haiwen & Partners as required under the International Underwriting
Agreement.
(C) Four signed originals of the legal opinions from each of Debevoise &
Plimpton and Skadden, Arps, Slate, Meagher & Flom LLP as required under
the International Underwriting Agreement.
(D) Four signed originals of the Hong Kong legal opinions from each of Allen
& Overy and Baker & McKenzie as required under the International
Underwriting Agreement.
(E) Four certified copies of each of the resolutions of the board committee
of the Company relating to the Global Offering approving, inter alia,
the basis of allotment and allotment of H Shares to allottees.
(F) Four signed originals of a sponsors' agreement between the Company and
the Joint Sponsors.
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SCHEDULE 6
HONG KONG UNDERWRITERS' SET OFF ARRANGEMENTS
1. This Schedule sets out the arrangements and terms pursuant to which the
obligations of each Hong Kong Underwriter under clause 5 of this
Agreement will be reduced to the extent that it makes (or procures to be
made) one or more Valid Applications which is or are accepted (hereafter
referred to as "Underwriters' Applications"). These arrangements mean
that in no circumstances will any Hong Kong Underwriter have any further
liability as a Hong Kong Underwriter if one or more Underwriters'
Applications, duly made by it or procured by it to be made, are validly
made and accepted for not less than the number of the Hong Kong Offer
Shares noted against its name in Schedule 3.
2. In order to qualify as Underwriters' Applications, such applications
must be made on one or more Application Forms and delivered, together
with a cheque or cheques or banker's cashier order or orders for the
amounts payable on application (including brokerage, transaction levy,
investor compensation levy and Hong Kong Stock Exchange trading fee), to
the Joint Global Coordinators by not later than 10:00 a.m. on the
Acceptance Date. Each such application must bear the stamp of the Hong
Kong Underwriter or the Hong Kong Underwriter's broker or nominee by
whom or on whose behalf the application is made or, if made by the Hong
Kong Underwriter's sub-underwriter, marked to identify the relevant Hong
Kong Underwriter and there must be clearly marked on the Application
Form(s) "China Life Insurance Company Limited - Sub-Underwriter's
Application". These applications will subsequently be notified and
delivered by the Joint Global Coordinators to the Receiving Bankers by
12:00 noon on the Acceptance Date.
3. If all of the Hong Kong Offer Shares shall not have been validly both
applied and paid for in the manner referred to in this Agreement, each
Hong Kong Underwriter will, subject to the provisions of this Agreement,
be obliged to take up the proportion of the shortfall that (a) its net
underwriting participation (that is its underwriting participation
pursuant to clause 5 less the aggregate number of Hong Kong Offer Shares
for which Underwriters' Applications have been made by it or procured to
be made by it to the extent that they have been accepted and up to the
limit of its underwriting participation), bears to (b) the aggregate of
the underwriting participation of all the Hong Kong Underwriters
including itself less the aggregate number of Hong Kong Offer Shares for
which Underwriters' Applications have been made (including by itself).
4. The obligations of Hong Kong Underwriters determined pursuant to
paragraph 3 above may be rounded, as determined by the Joint Global
Coordinators in their sole discretion, to avoid fractions. The
determination of the Joint Global Coordinators shall be final and
conclusive.
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5. No preferential consideration will be given in respect of Underwriters'
Applications.
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SCHEDULE 7
THE CONTINGENCY PLAN
TO: Receiving Banks and Computershare
CONTINGENCY PLAN IN THE EVENT OF EXCESS DEMAND IN THE PUBLIC OFFER FOR CHINA
LIFE INSURANCE COMPANY LIMITED ("CHINA LIFE" OR THE "COMPANY")
Re: Proposed issue of shares of RMB 1.00 each in the Company (each, a "Share")
by way of, inter alia, offering certain Shares to the public for subscription in
Hong Kong (the "Public Offer" and the Shares to be offered under the Public
Offer, the "Public Offer Shares")
We are writing to set out the contingency plan for dealing with the potential
higher than expected level of interest in the Public Offer. In the event that
demand for the Public Offer Shares is higher than expected, such that the number
of applications on the White application forms and Yellow application forms,
(together, the "Application Forms"), and the EIPO (for CCASS participants)
received altogether exceeds the anticipated volume of 300,000, it is proposed
that the following contingency procedures may be adopted (subject to agreement
between the Company, China International Capital Corporation Limited ("CICC"),
Citigroup Global Markets Asia Limited ("Citigroup"), Credit Suisse First Boston
(Hong Kong) Limited ("CSFB") and Deutsche Bank AG, Hong Kong Branch ("Deutsche")
(together, the "Joint Global Coordinators" or "JGCs"), the Receiving Banks (as
defined below) and Computershare Hong Kong Investor Services Limited
("Computershare")):
The three receiving banks to the Public Offer, namely, The Bank of East Asia,
Limited ("BEA"), Bank of China (Hong Kong) Limited ("BOC") and The Hongkong and
Shanghai Banking Corporation Limited ("HSBC") (each a "Receiving Bank" and
together, the "Receiving Banks") have each individually undertaken to handle and
process 100,000, 100,000 and 100,000 applications and monies, respectively.
1. In the event where the estimated aggregate number of applications is
lower than or equal to 300,000, each Receiving Bank shall provide the
JGCs, no later than 2:30 p.m. on the closing date for applications under
the Public Offer (the "Application Closing Date") the estimated total
number of applications received. The JGCs shall, by no later than 3:30
p.m. on the same day and after consultation with the Company, exercise
its discretion to require any of the Receiving Banks which has received
applications in excess of their respective processing commitment (as set
out above) to deliver to the other Receiving Banks with spare capacity
such number and such type of applications in different denomination for
processing. The JGCs will arrange for such delivery with the joint
supervision of the Receiving Bank(s) before 6:00 p.m. on the same day.
The relevant Receiving Bank(s) receiving the re-allocated applications
shall not be obliged to process such applications up to its processing
commitment (as detailed above), but shall do so on a best effort basis.
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2. In the event where the estimated aggregate number of applications is in
excess of 300,000, based on the estimated aggregate number of
applications received under the Public Offer, the relevant parties
including the Company, the JGCs, the Receiving Banks and Computershare
will determine and communicate to each of the Receiving Banks by no
later than 5:00 p.m. on the Application Closing Date the number of
applications to be fully processed (the "Critical Amount") (such number
will be equal to or less than 300,000) as part of the resources of
Computershare will be employed to handle the Lesser Applications (as
defined below). The JGCs should indicate to the Receiving Banks the
preliminary Critical Amount and Cut-off Point (as defined below) by no
later than 2:00 p.m. on the day immediately prior to the Application
Closing Date of the Public Offer, provided that the Cut-off Point, once
indicated, can only be revised downwards (to applications for a lesser
number of shares) but not upwards.
3. Based on the Critical Amount, the Company, the JGCs, the Receiving Banks
and Computershare will determine a "cut-off" point whereby (i)
Applications for Shares equal to or above this "cut-off" point (the
"Greater Applications") will be fully processed by the Receiving Banks
and Computershare, the relevant cheques presented for payment, and (ii)
Applications for Shares below this "cut-off" point (the "Lesser
Applications") will not be fully processed by the joint receiving banks
and Computershare but will be handled in accordance with paragraphs (4)
to (7) below. The relevant cheques of the Lesser Applications will not
be presented for payment until the successful Lesser Applications are
determined (see paragraph (5) below).
3.1 Once the cut-off point is established, no change can be made to
the agreed Lesser Applications as any change will result in a
significant delay in processing.
3.2 No Application will be processed on the Computer System until
the Lesser Applications are agreed upon. Process before the
number is agreed upon would mean all Applications processed
until that point of time would have to be re-processed and
therefore will result in a significant delay in processing.
3.3 The Lesser Applications for each category of Shares applied for
will be organised in batches of 50 Applications each by the
Receiving Banks. The batches will be numbered and forwarded to
Computershare. For EIPO, a dummy batch number will be applied to
Computershare's pre-balloting system which will represent
batches of EIPO applications as per the denomination applied to
paper batches. This unique number will represent the batch
number. The balloting software will have the functionality to
either ballot by batch number or application number as required
by the pre-balloting procedure. These dummy numbers will be
added to the list of batch numbers provided by the Receiving
Banks.
4. Computershare will, based on basis of allocation determined by the
Company and the JGCs, conduct a computer programmed ballot of the Lesser
Applications to determine the Successful Lesser Applications therefrom.
The application 'pre-
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ballot' (for both physical and EIPO) process will be based on the same
methodology as for the batch number 'pre-ballot'. The process of the
computer programmed ballot of the Lesser Applications is as follows:
4.1 For each type of the White and Yellow Application Forms pursuant
to which of the Public Offer Shares are applied for, input the
batch numbers into the computer. For EIPO, Computershare will
have to apply the dummy numbers and add to the list of physical
application batch numbers.
4.2 The computer selects a number of batches pursuant to a ballot
program.
4.3 The computer system in the next phase then selects the
Successful Lesser Applications and a number of Reserved
Applications ("Reserved Lesser Applications") pursuant to a
ballot program. The number of Reserved Lesser Applications must
be agreed among the parties prior to running of the
pre-balloting programs.
4.4 All Applications under those selected batches will be numbered
by one of the Receiving Banks and then delivered to
Computershare for input into the computer.
5. The Successful Lesser Applications will then be processed by the
Receiving Banks and Computershare. The relevant cheques for both the
Successful Lesser Applications and the Reserved Lesser Applications will
be presented for payment on timing to be mutually agreed among the
parties.
For EIPO, as all these applications have been considered processed,
i.e., the cheques are banked and all EIPO information is in the computer
system, then the unsuccessful EIPO applications will later be refunded
(together with unsuccessful Greater Applications).
6. If there are any bounced cheques from the Successful Lesser
Applications, then the Reserved Lesser Applications will be extracted to
replace the bounced ones.
7. The unsuccessful Lesser Applications will not be processed further (the
relevant cheques will not be presented for payment) and will be returned
to the applicants.
For EIPO, as EIPO applications have been considered processed, those
unsuccessful applications will be refunded by cheque, at the same time
as, and as per the unsuccessful greater applications. The unused
Reserved Lesser Applications will be refunded by cheques also, at the
same time.
Other Considerations:
8. In relation to the Contingency Plan, as discussed above, the need at
short notice to print and deliver more prospectuses and application
forms has been accommodated for by our printers, whereby the printers
has agreed on a minimum notice period of 24 hours.
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9. If the demand for the Public Offer is so overwhelming that the number of
applicants trying to lodge their application forms at any one of the
collecting branches becomes unmanageable, the JGCs and/or the Company
may inform the Stock Exchange and request that the period for the Public
Offer or/and the opening hours of any branches of any Receiving Bank
involved be extended and/or number of any branches of any Receiving Bank
as collecting branches be added, subject to such terms and conditions as
may be agreed with the Receiving Banks.
10. We expect each of the Receiving Banks to monitor and control the order
at their respective branches, including but not limited to the
distribution of application forms and prospectuses, collection of
applications forms as well as crowd control during the IPO offering
period. If the situation becomes uncontrollable or chaotic, then we
expect the relevant Receiving Banks to inform us to discuss any
immediate action, which may include without limitation notifying the
relevant authorities by the JGCs and the Company. Each of the Receiving
Banks may at its absolute discretion liaise with the police on crowd
management issue and/or draft in additional staff. In the event of
adding additional branches or drafting in additional staff, a standard
rate to be agreed by the Company and the individual Receiving Bank shall
apply and shall on demand be payable by the Company to the corresponding
Receiving Bank.
Alan Wong (Office Tel no. 2501-2145, Mobile Phone no. 9885-0204) of Citigroup
will be the contact person to consult with the JGCs to make the relevant
decisions in the case of changes or revision on the number of distribution
points if in fact the need arises and/or other urgent matters.
Please confirm your agreement to the above by countersigning and returning the
attached copy of this letter.
For and on behalf of
China Life Insurance Company Limited
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Name:
Title:
China International Capital Corporation Limited
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Name:
Title:
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Citigroup Global Markets Asia Limited
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Name:
Title:
Credit Suisse First Boston (Hong Kong) Limited
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Name:
Title:
Deutsche Bank AG, Hong Kong Branch
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Name:
Title:
Accepted by:
The Hongkong and Shanghai Banking Corporation Limited
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Bank of China (Hong Kong) Limited
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The Bank of East Asia, Limited
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Computershare Hong Kong Investor Services Limited
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SIGNATURE PAGE
THE COMPANY
SIGNED by )
for and on behalf of )
[NAME OF COMPANY IN CHINESE] )
(CHINA LIFE INSURANCE )
COMPANY LIMITED) )
THE SELLING SHAREHOLDER
SIGNED by )
for and on behalf of )
[NAME OF COMPANY IN CHINESE] )
(CHINA LIFE INSURANCE )
(GROUP) COMPANY) )
THE JOINT GLOBAL COORDINATORS
SIGNED by )
for and on behalf of )
CHINA INTERNATIONAL )
CAPITAL CORPORATION LIMITED )
SIGNED by )
for and on behalf of )
CITIGROUP GLOBAL )
MARKETS ASIA LIMITED )
SIGNED by )
for and on behalf of )
CREDIT SUISSE FIRST BOSTON )
(HONG KONG) LIMITED )
SIGNED by )
for and on behalf of )
DEUTSCHE BANK AG, )
HONG KONG BRANCH )
THE JOINT SPONSORS
SIGNED by )
for and on behalf of )
CHINA INTERNATIONAL )
CAPITAL CORPORATION )
(HONG KONG) LIMITED )
SIGNED by )
for and on behalf of )
CITIGROUP GLOBAL )
MARKETS ASIA LIMITED )
SIGNED by )
for and on behalf of )
CREDIT SUISSE FIRST BOSTON )
(HONG KONG) LIMITED )
SIGNED by )
for and on behalf of )
DEUTSCHE BANK AG, )
HONG KONG BRANCH )
THE HONG KONG UNDERWRITERS
SIGNED by )
for and on behalf of )
CHINA INTERNATIONAL )
CAPITAL CORPORATION )
(HONG KONG) LIMITED )
SIGNED by )
for and on behalf of )
CITIGROUP GLOBAL )
MARKETS ASIA LIMITED )
SIGNED by )
for and on behalf of )
CREDIT SUISSE FIRST BOSTON )
(HONG KONG) LIMITED )
SIGNED by )
for and on behalf of )
DEUTSCHE BANK AG, )
HONG KONG BRANCH )
SIGNED by )
as attorney for and on behalf of each of )
the other HONG KONG UNDERWRITERS )
(as defined herein) )