16 MAY 2002
VODAFONE GROUP PLC
VODAFONE HOLDINGS (JERSEY) LIMITED
CHINA MOBILE (HONG KONG) LIMITED
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SUBSCRIPTION AGREEMENT
IN RESPECT OF
ORDINARY SHARES IN THE CAPITAL OF
CHINA MOBILE (HONG KONG) LIMITED
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CONTENTS
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CLAUSE PAGE
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1. DEFINITIONS AND INTERPRETATION 1
2. SUBSCRIPTION 4
3. CONDITIONS 5
4. COMPLETION 6
5. UNDERTAKINGS, REPRESENTATIONS AND WARRANTIES OF
THE COMPANY 7
6. REPRESENTATIONS AND WARRANTIES OF THE SUBSCRIBER
AND THE SUBSCRIBER SUBSIDIARY 9
7. FURTHER ASSURANCES 12
8. VARIATION 12
9. ASSIGNMENT 12
10. SEVERABILITY 13
11. ANNOUNCEMENTS 13
12. TIME OF THE ESSENCE 13
13. COSTS AND EXPENSES 13
14. NOTICES 13
15. COUNTERPARTS 14
16. GOVERNING LAW 14
17. JURISDICTION 14
SCHEDULE 1 17
FORM OF COMPANY ANNOUNCEMENT 17
SCHEDULE 2 18
FORM OF COMPLETION CERTIFICATE 18
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THIS AGREEMENT is made on 16 May 2002
BETWEEN:
(1) VODAFONE GROUP PLC, whose registered office is at The Courtyard, 2-4 London
Road, Newbury, Berkshire RG14 1JX, England (the SUBSCRIBER);
(2) VODAFONE HOLDINGS (JERSEY) LIMITED, whose registered office is at P.O. Box
404, Whiteley Chambers, Don Street, St Helier JE4 9WG, Jersey (the
SUBSCRIBER SUBSIDIARY); and
(3) CHINA MOBILE (HONG KONG) LIMITED, whose registered office is at 60th Floor,
The Center, 99 Queen's Road Central, Hong Kong (the COMPANY).
WHEREAS:
(A) The Company is a company limited by shares duly incorporated in Hong Kong.
(B) At the date of this Agreement, the Company has an authorised capital of
HK$3,000,000,000 comprising 30,000,000,000 ordinary shares of HK$0.10 each
(SHARES) of which 18,605,405,241 Shares have been issued, fully paid and are
listed on the Stock Exchange.
(C) The Subscriber Subsidiary is at the date of this Agreement the beneficial
owner of 406,234,375 Shares representing approximately 2.18% of the issued
capital of the Company.
(D) The Subscriber has agreed or, at the election of the Subscriber, the
Subscriber Subsidiary has agreed to subscribe for the New Shares, and the
Company has agreed to allot and issue the New Shares, upon the terms and
conditions set out in this Agreement.
NOW IT IS HEREBY AGREED as follows:
1. DEFINITIONS AND INTERPRETATION
1.1 In this Agreement (including the recitals above), the following expressions
shall, unless the context otherwise requires, have the following meaning:
ACQUISITION means the proposed acquisition by the Company from the Parent of the
mobile telecommunications businesses indirectly owned by China Mobile
Communications Corporation in the provinces of Anhui, Hunan, Hubei, Jiangxi,
Sichuan, Shaanxi and Shanxi and the directly administered municipality of
Chongqing in the PRC;
AFFILIATE in relation to a specified person, means a person which directly or
indirectly controls or is controlled by or is under direct or indirect common
control with that
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specified person; CONTROL of a person for the purpose of this definition being
taken to mean direct or indirect ownership of at least 50% of the voting rights
of that person;
AVERAGE DAILY VWAP means the simple arithmetic average of the Daily VWAP for the
10 consecutive Trading Days commencing on 17 May 2002, computed to four decimal
places;
BUSINESS DAY means any day (other than a Saturday) on which banks are normally
open for business in Hong Kong;
CONDITIONS means the conditions set out in clause 3.1;
COMPANY ANNOUNCEMENT means the paid announcement of the Acquisition in the form
set out in schedule 1 to this Agreement, to be published by the Company on the
first Business Day immediately following the date of this Agreement;
COMPANY CIRCULAR means the circular to be sent by the Company to its
shareholders in connection with the Acquisition, an advanced draft of which is
provided by the Company to the Subscriber and the Subscriber Subsidiary on the
date of this Agreement and initialled by or on behalf of the parties;
COMPLETION means completion of the Subscription in accordance with clause 4;
DAILY VWAP means, in relation to a Trading Day, the volume weighted average
price per Share (VWAP) for the entire duration of that Trading Day, computed to
four decimal places:
(a) as shown on the Bloomberg Screen VOLUME AT PRICE Page by the ticker "941 HK
Equity VAP" and listed on the VWAP field; or
(b) if for any reason the VWAP does not so appear, or such page is unavailable,
as described in paragraph (a) above, as results from dividing the turnover
of all Shares of the Company traded on the Stock Exchange on that Trading
Day by the number of Shares of the Company so traded, both as shown in the
daily quotation sheets of the Stock Exchange for that Trading Day;
HK$ means Hong Kong dollar and references to any amount in such currency shall
be deemed to include a reference to any equivalent amount in any other currency;
HONG KONG means the Hong Kong Special Administrative Region of the PRC;
INITIAL PRICE means HK$24.7217 per Share, being the average of the closing
prices per Share, computed to four decimal places, as shown on the Bloomberg
Screen by the ticker "941 HK Equity HP" for the 30 consecutive Trading Days
immediately preceding the date of this Agreement;
LONG STOP DATE means 31 July 2002 or such later date as may be agreed in writing
between the parties to this Agreement;
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NEW SHARES means the new Shares to be allotted and issued in accordance with the
terms and conditions of this Agreement;
PARENT means China Mobile Hong Kong (BVI) Limited, which is at the date of this
Agreement the legal and beneficial owner of 14,062,602,396 Shares representing
approximately 75.58% of the issued capital of the Company;
PRC means The People's Republic of China, which expression, except where the
context requires, does not apply to Hong Kong, Macau or Taiwan;
STOCK EXCHANGE means The Stock Exchange of Hong Kong Limited;
STRATEGIC ALLIANCE AGREEMENT means the Strategic Alliance Agreement dated 27
February 2001 entered into between the Subscriber and the Company;
SUBSCRIBER ANNOUNCEMENT means the press announcement of the Subscription to be
published by the Subscriber on the date of this Agreement;
SUBSCRIPTION means the subscription for, and the allotment and issue of, the New
Shares in accordance with the terms and conditions of this Agreement;
SUBSCRIPTION AMOUNT means HK$5,850,000,000;
SUBSCRIPTION PRICE shall have the meaning given to it in clause 2.4;
THRESHOLD NUMBER shall have the meaning given to it in clause 4.3(d);
TRADING DAY means a day on which the Shares are generally traded on the Stock
Exchange; and
US$ means United States dollar and references to any amount in such currency
shall be deemed to include a reference to any equivalent amount in any other
currency.
1.2 References in this Agreement to persons or entities include references to
bodies corporate and unincorporated.
1.3 References to any gender include references to all genders, and references
to the singular include references to the plural and vice versa.
1.4 References herein to recitals, clauses and schedules are references to the
recitals, clauses and schedules of this Agreement and shall be deemed to form
part of this Agreement.
1.5 Clause headings are inserted for convenience only and shall not affect the
interpretation of this Agreement.
1.6 In this Agreement, references to any statute or statutory provisions
includes a reference to that statute or statutory provision as from time to time
amended, extended or re-enacted.
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2. SUBSCRIPTION
2.1 The Subscriber shall or, at the election of the Subscriber, the Subscriber
Subsidiary shall subscribe for, and the Company shall allot to the Subscriber or
the Subscriber Subsidiary, as appropriate, and issue in accordance with
clause 4.3(c), the New Shares at the Subscription Price
2.2 The aggregate consideration for the Subscription shall be the Subscription
Amount.
2.3 The New Shares to be allotted and issued pursuant to the Subscription shall
be such number of Shares as results from dividing the Subscription Amount by the
Subscription Price but subject to rounding down to the nearest whole number.
2.4 The Subscription Price shall be the price per New Share which shall be
determined as follows:
(a) where the Average Daily VWAP does not exceed HK$28.4300 (being 15 per cent.
above the Initial Price) and does not fall below HK$21.0134 (being 15 per
cent. below the Initial Price), the Subscription Price shall be the Initial
Price; or
(b) where the Average Daily VWAP exceeds HK$28.4300 (being 15 per cent. above
the Initial Price), the Subscription Price shall be calculated in
accordance with the following formula:
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SP = IP + I
Where SP = the Subscription Price
IP = the Initial Price
Average Daily VWAP - (Initial Price x 115%)
I = -------------------------------------------
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or
(c) where the Average Daily VWAP falls below HK$21.0134 (being 15 per cent.
below the Initial Price), the Subscription Price shall be calculated in
accordance with the following formula:
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SP = IP - D
Where SP = the Subscription Price
IP = the Initial Price
(Initial Price x 85%) - Average Daily VWAP
D = ------------------------------------------
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2.5 The New Shares shall be allotted by the Company to the Subscriber or the
Subscriber Subsidiary, as appropriate, and issued in accordance with
clause 4.3(c), fully paid and free from all liens, charges, security interests,
encumbrances, adverse claims, options and third party rights.
2.6 The New Shares shall rank pari passu in all respects with the Shares in
issue at the date of allotment and in particular will rank in full for all
dividends and other distributions declared, made or paid at any time after the
date of allotment.
3. CONDITIONS
3.1 Completion of the Subscription shall be conditional upon the following
conditions having been fulfilled or, at the discretion of the Subscriber and the
Subscriber Subsidiary, waived:
(a) the Listing Committee of the Stock Exchange granting listing of, and
permission to deal in, all of the New Shares on the Stock Exchange;
(b) the Company Announcement being released for publication on the first
Business Day immediately following the date of this Agreement; and
(c) the Subscriber and the Subscriber Subsidiary having jointly received from
the Company, at the Company's expense, a signed legal opinion from the
Company's PRC counsel that no PRC governmental or regulatory approvals of
this Agreement and the transactions contemplated herein are required.
3.2 In the event that any of the Conditions is not fulfilled, or waived by the
Subscriber and the Subscriber Subsidiary, by the Long Stop Date, this Agreement
and all rights and obligations of the parties hereunder shall automatically
cease and terminate save for accrued rights and obligations.
3.3 The Company undertakes to notify the Subscriber and the Subscriber
Subsidiary promptly in writing following the satisfaction of the Conditions.
3.4 If, at any time prior to Completion:
(a) the Company issues or ought reasonably to have issued any announcement, or
any supplemental circular or other written communication containing
revisions to the Company Circular, due to a material adverse change in the
business or financial condition of either (i) the Company and its
Affiliates taken as a whole, or (ii) the companies or entities or
businesses which the Company plans to acquire pursuant to the Acquisition,
taken as a whole; or
(b) there shall develop, occur, exist or come into effect:
(i) any outbreak or escalation of hostilities involving the PRC or Hong
Kong or the declaration by the PRC or Hong Kong of a national
emergency or war; or
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(ii) any act of God, riot, public disorder, civil commotion, fire, flood,
explosion, epidemic, terrorism, war, strike, lock-out or other
calamity or crisis; or
(iii) the imposition of any moratorium, suspension or material restriction
on trading in the securities of the Company or in securities
generally on the Hong Kong Stock Exchange or the New York Stock
Exchange; or
(iv) any change in financial, political, military, industrial, economic,
legal, fiscal, regulatory or stock market maters or conditions in
Hong Kong or the PRC or the British Virgin Islands; or
(v) any new law or regulation or change in existing laws or regulations
in Hong Kong or the PRC or the British Virgin Islands or any change
in the interpretation or application thereof by any court or other
competent authority in Hong Kong or the PRC or the British Virgin
Islands,
which, in the reasonable opinion of the Subscriber and/or the Subscriber
Subsidiary as determined by the Subscriber and/or Subscriber Subsidiary, is
or will be or is likely to be materially adverse to the business or
financial condition of either (i) the Company and its Affiliates taken as a
whole, or (ii) the companies or entities or businesses which the Company
plans to acquire pursuant to the Acquisition, taken as a whole,
then the Subscriber and the Subscriber Subsidiary shall each have the right to
immediately terminate this Agreement by written notice to the Company, provided
that the Subscriber and the Subscriber Subsidiary shall each consult with the
Company before electing to terminate this Agreement pursuant to this clause.
Upon the termination of this Agreement, all rights and obligations of the
parties hereunder shall cease and terminate save for accrued rights and
obligations.
4. COMPLETION
4.1 Completion shall take place on 18 June 2002 or such later date as may be
agreed in writing between the parties to this Agreement.
4.2 If Completion has not occurred (other than through the failure of the
Subscriber or the Subscriber Subsidiary, as appropriate, to comply with the
obligations under clause 4.3 to the extent applicable to it) by 30 September
2002, this Agreement and all rights and obligations of the parties hereunder
shall automatically cease and terminate save for accrued rights and obligations.
4.3 At Completion:
(a) the Company shall deliver a written confirmation addressed to the
Subscriber and the Subscriber Subsidiary jointly and dated the date of
Completion confirming that there has been no material adverse change in the
business or financial condition of the Company, its Affiliates and/or the
companies or
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entities which it plans to acquire pursuant to the Acquisition, taken as a
whole, since the date of this Agreement;
(b) the Subscriber or the Subscriber Subsidiary, as appropriate, shall make
payment of the Subscription Amount in immediately transferable funds by
direct transfer to such account as the Company shall notify the Subscriber
and the Subscriber Subsidiary in writing at least three Business Days prior
to Completion (the DESIGNATED ACCOUNT) and such transfer into the
Designated Account shall constitute a complete discharge of the obligations
of the Subscriber and the Subscriber Subsidiary in respect of the
Subscription Amount and under this Agreement;
(c) the Company shall allot the New Shares to the Subscriber or the Subscriber
Subsidiary, as appropriate, and issue a share certificate in respect of the
New Shares in the name of HKSCC Nominees Limited and shall promptly
thereafter register HKSCC Nominees Limited as member in respect of the New
Shares and deliver the share certificate to Hong Kong Securities Clearing
Company Limited for credit to such account with the Central Clearing and
Settlement System established and operated by Hong Kong Securities Clearing
Company Limited as may be instructed by the Subscriber or the Subscriber
Subsidiary, as appropriate, for such purpose;
(d) the Company, the Subscriber and the Subscriber Subsidiary shall jointly
issue a completion certificate which shall be in the form set out in
schedule 2 to this Agreement, stating the Threshold Number, being the sum
of 406,234,375 Shares and the New Shares to be allotted to the Subscriber
or the Subscriber Subsidiary pursuant to clause 4.3(c);
(e) the Company shall arrange for an announcement giving details of the
allotment of the New Shares to be made in at least one English newspaper
and at least one Chinese newspaper no later than the next Business Day
following the date of the allotment; and
(f) the Subscriber may arrange for an announcement to be published stating that
Completion has taken place on the date of Completion.
5. UNDERTAKINGS, REPRESENTATIONS AND WARRANTIES OF THE COMPANY
5.1 For so long as (A) the aggregate number of Shares beneficially held by the
Subscriber and/or its wholly owned subsidiaries does not fall below the
Threshold Number, and (B) the Strategic Alliance Agreement remains in effect:
(a) the Subscriber or (if the New Shares are allotted to the Subscriber
Subsidiary) the Subscriber Subsidiary shall be entitled to nominate from
time to time the Chief Executive of the Subscriber or such other member of
the senior management of the Subscriber as shall be mutually agreed with
the Company (such agreement not to be unreasonably withheld or delayed by
the Company) for appointment by the board of directors of the Company
and/or election by the shareholders of the Company as a non-executive
director of the Company;
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(b) the Company hereby undertakes to the Subscriber and the Subscriber
Subsidiary to perform all acts and things, and execute and deliver (or
procure the execution and delivery of) all documents, as may be required to
cause the person nominated by the Subscriber or (if the New Shares are
allotted to the Subscriber Subsidiary) the Subscriber Subsidiary to be
appointed and/or elected as a non-executive director of the Company and, in
particular but without prejudice to the generality of the foregoing, to
cause:
(i) its board of directors to resolve on and vote in favour of such
person's appointment as a non-executive director of the Company; and
(ii) its board of directors to propose and recommend such person for
election as a director of the Company by the shareholders at a general
meeting of the Company; and
(c) for the avoidance of doubt, there shall be at all times one non-executive
director on the board of the directors of the Company who is nominated by
the Subscriber or (if the New Shares are allotted to the Subscriber
Subsidiary) the Subscriber Subsidiary as described above,
provided that the Subscriber, the Subscriber Subsidiary and the Company shall
adjust the Threshold Number to reflect any consolidation or subdivision or other
restructuring of the capital of the Company involving any alteration to the par
value of the Shares and the resultant number shall be rounded down to ignore any
fractions of a share.
5.2 The Company hereby represents and warrants to each of the Subscriber and
the Subscriber Subsidiary that:
(a) it has full power, authority and capacity, and has taken all actions
required, including but not limited to, the obtaining of all necessary
governmental or regulatory approvals in any applicable jurisdiction and
consents from third parties, in order to enter into and perform its
obligations under this Agreement and the transactions contemplated herein
(including the creation, allotment and issue of the New Shares);
(b) the directors of the Company have full power and authority to effect the
allotment of the New Shares in accordance with the terms of this Agreement
and under the memorandum and articles of association of the Company;
(c) the entry into by the Company of, or the performance by the Company of its
obligations under, this Agreement and the transactions contemplated herein
(including the creation of the New Shares and their allotment and issue
pursuant to this Agreement) does not and will not cause any violation or
breach of (i) any articles of association or other constitutional documents
of the Company and/or any of its Affiliates; or (ii) any law, rule or
regulation of any applicable jurisdiction or stock exchange (including the
Companies Ordinance and the rules and regulations of the Stock Exchange);
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(d) the entry into by the Company of, or the performance by the Company of its
obligations under, this Agreement and the transactions contemplated herein
(including the creation of the New Shares and their allotment and issue
pursuant to this Agreement) does not and will not cause any violation or
breach of any agreement to which the Company and/or any of its Affiliates
is a party or by which the Company is or any of them is bound and will not
infringe or exceed any limits on, powers of, or restrictions on or the
terms of any contract, obligation or commitment whatsoever of, the Company
and/or any of its Affiliates and/or their respective board of directors;
and
(e) the authorised and issued capital of the Company conform in all respects to
the description thereof contained in recital (B) of this Agreement and,
save as disclosed in the last annual accounts of the Company as at
31 December 2001, there are no securities issued by the Company convertible
into or exchangeable for, or rights, warrants or options to subscribe for
or acquire from the Company, or obligations of the Company to issue or
grant, any Shares or other securities of the Company and there is no
agreement or commitment outstanding which calls for the allotment or issue,
or accords to any person the right to call for the allotment or issue, of
any Shares or other securities of the Company.
5.3 Each of the representations and warranties of the Company set out in clause
5.2 shall be construed as separate, and shall be deemed to be repeated as of the
date of Completion.
5.4 The Company hereby acknowledges that each of the Subscriber and the
Subscriber Subsidiary has entered into this Agreement in reliance on the Company
Announcement, the Company Circular and the undertakings, representations and
warranties contained in the provisions of this clause 5.
5.5 For the purpose of section 10(5) of the Securities (Insider Dealing)
Ordinance (Cap. 395 of the Laws of Hong Kong) (the INSIDER DEALING ORDINANCE),
the Company acknowledges that at the time of execution of this Agreement, it
knows or ought reasonably to have known that the information about itself
provided by it to the Subscriber and/or the Subscriber Subsidiary for the
purposes of or in connection with this Agreement comprises or includes relevant
information about itself as defined in section 8 of the Insider Dealing
Ordinance.
5.6 For the purpose of section 10(6) of the Insider Dealing Ordinance, the
Company acknowledges that it knows or ought reasonably to have known that the
Subscriber is a person connected with it within the meaning of section 4(2) of
the Insider Dealing Ordinance.
6. REPRESENTATIONS AND WARRANTIES OF THE SUBSCRIBER AND THE SUBSCRIBER
SUBSIDIARY
6.1 The Subscriber and the Subscriber Subsidiary hereby agree and acknowledge
with, and represent and warrant to, the Company that:
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(a) the Subscriber or the Subscriber Subsidiary (as the case may be) has full
power, authority and capacity, and has taken all actions required,
including but not limited to, the obtaining of all necessary governmental
or regulatory approvals in any applicable jurisdiction and consents from
third parties, in order to enter into and perform its obligations under
this Agreement and the transactions contemplated herein;
(b) the entry into by the Subscriber or the Subscriber Subsidiary of, or the
performance by the Subscriber or the Subscriber Subsidiary (as the case may
be) of the terms of, this Agreement and the transactions contemplated
herein does not and will not cause any violation or breach of (i) any
articles of association or other constitutional documents of the Subscriber
or the Subscriber Subsidiary, or (ii) any law, rule or regulation of any
applicable jurisdiction or stock exchange;
(c) the entry into by the Subscriber or the Subscriber Subsidiary of, or the
performance by the Subscriber or the Subscriber Subsidiary (as the case may
be) of the terms of, this Agreement and the transactions contemplated
herein does not and will not cause any violation or breach of any agreement
to which the Subscriber or the Subscriber Subsidiary is a party or by which
either of them is bound and will not infringe or exceed any limits on,
powers of, or restrictions on or the terms of any contract, obligation or
commitment whatsoever of, the Subscriber or the Subscriber Subsidiary
and/or their respective board of directors;
(d) the New Shares have not been registered under the United States Securities
Act of 1933, as amended (the SECURITIES ACT) and may not be offered or sold
in the United States except pursuant to an exemption from, or in a
transaction not subject to, the registration requirements of the Securities
Act;
(e) the Subscriber or the Subscriber Subsidiary (as the case may be) is not a
U.S. Person (as defined in Rule 902 of Regulation S under the Securities
Act) and is acquiring the New Shares in an offshore transaction in reliance
on Regulation S under the Securities Act;
(f) the Subscriber or the Subscriber Subsidiary (as the case may be) will not,
at any time during the period of 40 days after the date of purchase by the
Subscriber or the Subscriber Subsidiary (as the case may be), offer or sell
any of the New Shares to or for the benefit or account of a U.S. Person (as
defined in Rule 902 of Regulation S under the Securities Act);
(g) each of the Subscriber or the Subscriber Subsidiary will not deposit the
New Shares, or cause the New Shares to be deposited, into any unrestricted
depositary receipt facility established or maintained by a depositary bank
during the period of 40 days after the date of purchase by the Subscriber
or the Subscriber Subsidiary (as the case may be);
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(h) the Subscriber or the Subscriber Subsidiary (as the case may be) is
purchasing the New Shares for investment purposes and not with a view to
the distribution of the New Shares;
(i) the Subscriber or the Subscriber Subsidiary (as the case may be) is aware
of and will comply with the securities laws of the United States, Hong Kong
and other jurisdictions that prohibit, INTER ALIA, any investor who has
received from the Company or any of the directors, officers, employees,
representatives, agents or advisers of the Company material, non-public
information relating to the Company and the Acquisition (including, without
limitation, any assets or liabilities subject to the Acquisition) from
creating, transferring or otherwise howsoever disposing of or relinquishing
any interest (including by the creation of an option) in any New Shares and
any shares or other securities of the Company deriving from the New Shares
(pursuant to any rights issue, capitalisation issue or other form of
capital reorganisation);
(j) the New Shares will be acquired by the Subscriber or the Subscriber
Subsidiary (as the case may be) on the basis that:
(i) each of the Subscriber and the Subscriber Subsidiary has relied as
at the date of this Agreement, and will rely after the date of this
Agreement, on the information contained or to be contained in the
Company Announcement and the Company Circular;
(ii) in respect of any information or material concerning the Company and
the Acquisition (including, without limitation, any assets or
liabilities subject to the Acquisition), whether prepared by the
Company or its representatives or advisers or otherwise, which has
been furnished by or on behalf of the Company on or before the date
of this Agreement to, and has been and will be relied on by, the
Subscriber and its Affiliates, and which is not and will not be
contained in the Company Announcement or the Company Circular, the
Company and its representatives and advisers have made reasonable
endeavours to ensure and believe in good faith that such information
or material is materially accurate but does not otherwise warrant
the accuracy or completeness of such information or material;
(iii) subject to the extent provided in sub-paragraphs (i) and (ii) above
and save for the legal opinion referred to in clause 3.1(c), each of
the Subscriber and the Subscriber Subsidiary has conducted its own
due diligence investigation, and relied on its own knowledge and
information, with respect to the Company and the Acquisition
(including, without limitation, any assets or liabilities subject to
the Acquisition) in making its investment decision regarding the New
Shares and has not relied, and will not be entitled to rely, on any
legal opinion or other advice given by legal counsel to the Company
or the Company's representatives or advisers, and has taken its own
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independent advice to the extent it has considered necessary and
appropriate; and
(k) the Subscriber Subsidiary is, and will until Completion remain as, a wholly
owned subsidiary of the Subscriber.
7. FURTHER ASSURANCES
7.1 The Company agrees to perform (or procure the performance of) all further
acts and things, and execute and deliver (or procure the execution and delivery
of) such further documents, as may be required by law or as the Subscriber or
the Subscriber Subsidiary may reasonably require, whether on or after
Completion, to implement and/or give effect to this Agreement and the
transactions contemplated by it and for the purpose of vesting in the Subscriber
and the Subscriber Subsidiary the full benefit of the assets, rights and
benefits to be conferred on the Subscriber and the Subscriber Subsidiary under
this Agreement in accordance with the terms herein.
8. VARIATION
8.1 No variation of this Agreement shall be valid unless it is in writing and
signed by or on behalf of each of the parties to it. The expression "variation"
shall include any variation, supplement, deletion or replacement however
effected.
8.2 Unless expressly agreed, no variation shall constitute a general waiver of
any provisions of this Agreement, nor shall it affect any rights, obligations or
liabilities under or pursuant to this Agreement which have already accrued up to
the date of variation, and the rights and obligations of the parties under or
pursuant to this Agreement shall remain in full force and effect, except and
only to the extent that they are so varied.
9. ASSIGNMENT
9.1 No party to this Agreement shall nor shall it purport to assign, transfer,
charge or otherwise deal with all or any of its rights under this Agreement nor
grant, declare, create or dispose of any right or interest in it without the
prior written consent of the other parties to the Agreement.
9.2 Any purported assignment in contravention of this clause 9 shall be void.
9.3 For the avoidance of doubt, this clause 9 shall not apply to:
(a) the election by the Subscriber for the New Shares to be subscribed by the
Subscriber Subsidiary and the allotment and issue of the New Shares to the
Subscriber Subsidiary; and
(b) any transfer of the New Shares by the Subscriber or the Subscriber
Subsidiary, as the case may be, to any direct or indirect wholly owned
subsidiary of the Subscriber.
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10. SEVERABILITY
10.1 If any provision of this Agreement is held to be invalid or unenforceable,
then such provision shall (so far as it is invalid or unenforceable) be given no
effect and shall be deemed not to be included in this Agreement but without
invalidating any of the remaining provisions of this Agreement.
11. ANNOUNCEMENTS
11.1 Save for the Company Announcement, the Subscriber Announcement and the
announcements referred to in clauses 4.3(e) and (f) or as otherwise required by
law or by the Stock Exchange or any other regulatory authority or stock exchange
which has jurisdiction over any of the parties to this Agreement, no
announcement or circular relating to this Agreement and the transactions
contemplated herein shall be made by or on behalf of any party to this Agreement
without the prior approval in writing of the other parties, provided, however,
that the relevant parts of the Subscriber Announcement relating to this
Agreement and the transactions contemplated herein shall be provided to the
Company for its approval in advance prior to the release of the Subscriber
Announcement.
12. TIME OF THE ESSENCE
12.1 Any time, date or period mentioned in this Agreement may be extended by
mutual written agreement among the parties but, as regards any time, date or
period originally fixed or any date or period so extended as aforesaid, time
shall be of the essence.
13. COSTS AND EXPENSES
13.1 Each party to this Agreement shall bear its own costs and expenses incurred
in relation to the negotiation, preparation and implementation of this
Agreement.
14. NOTICES
14.1 All notices delivered hereunder shall be in writing and in the English
language and shall be communicated to the following addresses:
If to the Subscriber:
<TABLE>
<S> <C>
To: Vodafone Group Plc Copy to: Vodafone China Limited
The Courtyard, Unit 4913, 49/F
2-4 London Road, The Center
Newbury, Berkshire 99 Queen's Road Central
RG14 1JX England Hong Kong
Facsimile: (44) 1635 580857 Facsimile: (852) 2619 3211
Attention: Stephen Scott Attention: Jonathan Kriegel
General Counsel and Managing Director
Company Secretary
</TABLE>
13
<PAGE>
If to the Subscriber Subsidiary:
<TABLE>
<S> <C>
To: Vodafone Holdings (Jersey) Copy to: Vodafone China Limited
Limited Unit 4913, 49/F
P.O. Box 404 The Center
Whiteley Chambers 99 Queen's Road Central
Don Street, St Helier Hong Kong
JE4 9WG, Jersey
Facsimile: (852) 2619 3211
Facsimile: (44) 1534 504444 Attention: Jonathan Kriegel
Managing Director
Attention: Company Secretary
</TABLE>
If to the Company, to:
China Mobile (Hong Kong) Limited
60th Floor, The Center
99 Queen's Road Central
Hong Kong
Facsimile: (852) 3121 8912 and (852) 2511 9092
Attention: General Counsel (Mr David Kreider)
14.2 Any such notice shall be served either by hand or by sending it by courier
or by facsimile. Any notice shall be deemed to have been served, if served by
hand or by courier, when delivered, and if sent by facsimile, at the time of
transmission. Any notice received on a Sunday or public holiday shall be deemed
to be received on the next Business Day.
15. COUNTERPARTS
15.1 This Agreement may be executed in any number of counterparts and by the
parties to it on separate counterparts, each of which is an original but all of
which together constitute one and the same instrument.
16. GOVERNING LAW
16.1 This Agreement shall be governed by and construed in accordance with the
laws of Hong Kong for the time being in force.
17. JURISDICTION
17.1 Each of the Company, the Subscriber and the Subscriber Subsidiary
irrevocably agrees that the courts of England and the courts of Hong Kong
(together, THE AGREED COURTS) are each to have jurisdiction to settle any
dispute (including claims for set-off and counterclaims and all applications for
preliminary or interim relief, orders or equitable remedies) which may arise out
of or in connection with this
14
<PAGE>
Agreement including any dispute as to its validity, effect, interpretation,
termination or performance (A DISPUTE) and for such purposes irrevocably submits
to the jurisdiction of such courts.
17.2 Each of the parties to this Agreement irrevocably waives any objections to
the jurisdiction of the Agreed Courts.
17.3 Each of the parties to this Agreement agrees that a judgment or order of
any Agreed Court in connection with a Dispute is conclusive and binding on it
and may be entered or enforced against it or registered in the courts of any
other jurisdiction.
17.4 Each of the parties to this Agreement agrees that it will not commence
proceedings to resolve any Dispute in any court other than an Agreed Court
(save, for the avoidance of doubt, any proceedings to enter, enforce or register
a judgment or order of an Agreed Court). For the avoidance of doubt, no
proceedings involving and/or relating to the same Dispute may be brought before
both Agreed Courts.
15
<PAGE>
IN WITNESS WHEREOF this Agreement has been entered into the day and year first
before written.
<TABLE>
<S> <C> <C>
SIGNED by )
for and on behalf of ) /s/ Mr. Jonathan Kriegel
VODAFONE GROUP PLC )
in the presence of: )
/s/ Teresa Ko
Solicitor
Hong Kong SAR
SIGNED by Thomas Ayton )
for and on behalf of ) /s/ Mr. Thomas Ayton
VODAFONE HOLDINGS (JERSEY) )
LIMITED )
in the presence of: )
/s/ Emily Bone
SIGNED by Li Zhenqun )
for and on behalf of ) /s/ Mr. Li Zhenqun
CHINA MOBILE (HONG KONG) )
LIMITED )
in the presence of: )
/s/ Celia Lam
Linklaters
Solicitor,
Hong Kong SAR
</TABLE>
16
<PAGE>
SCHEDULE 1
FORM OF COMPANY ANNOUNCEMENT
17
<PAGE>
SCHEDULE 2
FORM OF COMPLETION CERTIFICATE
1. This is the completion certificate referred to in clause 4.3(d) of the
Subscription Agreement of 16 May 2002 entered into between us (the SUBSCRIPTION
AGREEMENT). Terms used herein shall have the same meanings as in the
Subscription Agreement.
2. We confirm for the purposes of the Subscription Agreement and the matters
contemplated therein that the Threshold Number is [-] representing the
following:
(a) 406,234,375 Shares beneficially owned by Vodafone Holdings (Jersey) Limited
and registered in the name of HKSCC Nominees Limited; and
(b) [-] Shares (being the number of the New Shares) allotted to [-] as the
beneficial owner, and issued to and registered in the name of HKSCC
Nominees Limited, upon Completion of the Subscription Agreement.
Dated this [-] day of [-] 2002.
<TABLE>
<S> <C>
----------------------------- -----------------------------
China Mobile (Hong Kong) Limited Vodafone Group Plc
Name: Name:
Designation: Designation:
-----------------------------
Vodafone Holdings (Jersey) Limited
Name:
Designation:
</TABLE>
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