0000950127-08-000008.txt : 20080114
<SEC-HEADER>0000950127-08-000008.hdr.sgml : 20080114
<ACCEPTANCE-DATETIME>20080114143805
ACCESSION NUMBER: 0000950127-08-000008
CONFORMED SUBMISSION TYPE: SC 13D/A
PUBLIC DOCUMENT COUNT: 11
FILED AS OF DATE: 20080114
DATE AS OF CHANGE: 20080114
SUBJECT COMPANY:
COMPANY DATA:
COMPANY CONFORMED NAME: Hutchison Telecommunications International LTD
CENTRAL INDEX KEY: 0001293257
STANDARD INDUSTRIAL CLASSIFICATION: TELEPHONE COMMUNICATIONS (NO RADIO TELEPHONE) [4813]
IRS NUMBER: 000000000
STATE OF INCORPORATION: E9
FISCAL YEAR END: 1231
FILING VALUES:
FORM TYPE: SC 13D/A
SEC ACT: 1934 Act
SEC FILE NUMBER: 005-80343
FILM NUMBER: 08528309
BUSINESS ADDRESS:
STREET 1: 18/F, TWO HARBOURFRONT, 22 TAK FUNG ST.
STREET 2: HUNGHOM, KOWLOON
CITY: HONG KONG
STATE: F4
ZIP: ----
BUSINESS PHONE: 852-2128-3222
MAIL ADDRESS:
STREET 1: 18/F, TWO HARBOURFRONT, 22 TAK FUNG ST.
STREET 2: HUNGHOM, KOWLOON
CITY: HONG KONG
STATE: F4
ZIP: ----
FILED BY:
COMPANY DATA:
COMPANY CONFORMED NAME: Orascom Telecom Holding S.A.E.
CENTRAL INDEX KEY: 0001347581
IRS NUMBER: 000000000
STATE OF INCORPORATION: H2
FISCAL YEAR END: 1231
FILING VALUES:
FORM TYPE: SC 13D/A
BUSINESS ADDRESS:
STREET 1: NILE CITY TOWERS-SOUTH TOWER
STREET 2: CORNISH EL NILE, RAMLET BEAULAC
CITY: CAIRO
STATE: H2
ZIP: 00000
BUSINESS PHONE: 0012024615050
MAIL ADDRESS:
STREET 1: NILE CITY TOWERS-SOUTH TOWER
STREET 2: CORNISH EL NILE, RAMLET BEAULAC
CITY: CAIRO
STATE: H2
ZIP: 00000
</SEC-HEADER>
<DOCUMENT>
<TYPE>SC 13D/A
<SEQUENCE>1
<FILENAME>sc13da.txt
<DESCRIPTION>AMENDMENT NO. 1 TO SCHEDULE 13D
<TEXT>
================================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE 13D/A
(Amendment No. 1)
Under the Securities Exchange Act of 1934
Hutchison Telecommunications International Limited
--------------------------------------------------
(Name of Issuer)
Ordinary Shares, nominal value HK$0.25 each
-------------------------------------------
(Title of Class of Securities)
44841T 10 7
--------------
(CUSIP Number)
Ragy Soliman
Orascom Telecom Holding S.A.E.
2005A Nile City Towers - South Tower
Corniche El Nile
Cairo - Egypt
+20 2 2461 5161
-----------------------------------------------------------
(Name, Address and Telephone Number of Person Authorized to
Receive Notices and Communications)
October 25, 2007
-------------------------------------------------------
(Date of Event which Requires Filing of this Statement)
If the filing person has previously filed a statement on Schedule 13G to report
the acquisition which is the subject of this Schedule 13D, and is filing this
schedule because of Rule 13d-1(e), (f) or (g), check the following box [ ].
================================================================================
<PAGE>
SCHEDULE 13D
- ---------------------
CUSIP No. 44841T 10 7
- ---------------------
- ------ -------------------------------------------------------------------------
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
Orascom Telecom Eurasia Limited - Not Applicable
- ------ -------------------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
(a) [ ]
(b) [X]
- ------ -------------------------------------------------------------------------
3 SEC USE ONLY
- ------ -------------------------------------------------------------------------
4 SOURCE OF FUNDS
AF, OO
- ------ -------------------------------------------------------------------------
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED
PURSUANT TO ITEMS 2(d) or 2(e) [ ]
- ------ -------------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF ORGANIZATION
Malta
- -------------------- ------ ----------------------------------------------------
NUMBER OF SHARES 7 SOLE VOTING POWER
BENEFICIALLY OWNED 0 Ordinary Shares of the Issuer (1)
BY EACH REPORTING ------ ----------------------------------------------------
PERSON WITH 8 SHARED VOTING POWER
0 Ordinary Shares of the Issuer (1)(2)
------ ----------------------------------------------------
9 SOLE DISPOSITIVE POWER
0 Ordinary Shares of the Issuer (1)
------ ----------------------------------------------------
10 SHARED DISPOSITIVE POWER
0 Ordinary Shares of the Issuer (1)(2)
- ------ -------------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
0 Ordinary Shares of the Issuer (1)
- ------ -------------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
CERTAIN SHARES [ ]
- ------ -------------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
0% (3)
- ------ -------------------------------------------------------------------------
14 TYPE OF REPORTING PERSON
CO
- --------------------------------------------------------------------------------
(1) As described in this Schedule 13D/A, pursuant to the terms of Placement
Agreements dated as of October 25, 2007 (the "October Placement Agreement")
and November 12, 2007 (the "November Placement Agreement," and together
with the October Placement Agreement, the "Placement Agreements") between
Orascom Telecom Eurasia Limited ("Orascom Eurasia") and Citigroup Global
Markets Asia Limited ("Citi"), Orascom Eurasia sold an aggregate of
237,625,000 Ordinary Shares, nominal value HK$0.25 each (the "Ordinary
Shares"), of Hutchison Telecommunications International Limited (the
"Issuer") at a price of HK$10.70 per share, for total consideration of
approximately HK$2,542,587,500. The Placement Agreements are described in
Item 4 of this Schedule 13D/A and are attached hereto as Exhibits 10.1 and
10.2.
As further described in this Schedule 13D/A, on December 4, 2007, Orascom
Eurasia and Orascom Telecom Holding S.A.E. ("Orascom Telecom") entered into
a share purchase agreement with Yuda Limited ("Yuda") pursuant to which
Orascom Eurasia sold 239,108,144 of its remaining 680,134,172 Ordinary
Shares of the Issuer to Yuda at a price of HK$11.00 per share for total
consideration of HK$2,630,189,584. Orascom Eurasia and Orascom Telecom
entered into a second share purchase agreement on December 4, 2007 with
Hutchison Whampoa Limited and Hutchison Telecommunications Investment
Holdings Limited ("HTIHL"), pursuant to which Orascom Eurasia sold its
remaining 441,026,028 Ordinary Shares of the Issuer to HTIHL at a price of
HK$11.00 per share, for total consideration of HK$4,851,286,308. Both share
purchase agreements closed on January 3, 2008. The share purchase
agreements are described in Item 4 of this Schedule 13D/A and are attached
hereto as Exhibits 10.3 and 10.4.
2
<PAGE>
(2) Reflecting the termination, on January 3, 2008, of the Shareholders'
Agreement, filed with the Securities and Exchange Commission as an exhibit
to the Original Schedule 13D (as defined below), which provided for certain
obligations and restrictions with respect to the voting and disposition of
the Ordinary Shares held by Orascom Eurasia and HTIHL.
(3) Based on 4,782,162,875 Ordinary Shares of the Issuer which were issued and
outstanding as of December 4, 2007.
3
<PAGE>
SCHEDULE 13D
- ---------------------
CUSIP No. 44841T 10 7
- ---------------------
- ------ -------------------------------------------------------------------------
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
Orascom Telecom Holding S.A.E. - Not Applicable
- ------ -------------------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
(a) [ ]
(b) [X]
- ------ -------------------------------------------------------------------------
3 SEC USE ONLY
- ------ -------------------------------------------------------------------------
4 SOURCE OF FUNDS
OO, WC
- ------ -------------------------------------------------------------------------
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED
PURSUANT TO ITEMS 2(d) or 2(e) [ ]
- ------ -------------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF ORGANIZATION
Arab Republic of Egypt
- -------------------- ------ ----------------------------------------------------
NUMBER OF SHARES 7 SOLE VOTING POWER
BENEFICIALLY OWNED 0 Ordinary Shares of the Issuer (1)
BY EACH REPORTING ------ ----------------------------------------------------
PERSON WITH 8 SHARED VOTING POWER
0 Ordinary Shares of the Issuer (1)(2)
------ ----------------------------------------------------
9 SOLE DISPOSITIVE POWER
0 Ordinary Shares of the Issuer (1)
------ ----------------------------------------------------
10 SHARED DISPOSITIVE POWER
0 Ordinary Shares of the Issuer (1)(2)
- ------ -------------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
0 Ordinary Shares of the Issuer (1)
- ------ -------------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
CERTAIN SHARES [ ]
- ------ -------------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
0%(3)
- ------ -------------------------------------------------------------------------
14 TYPE OF REPORTING PERSON
HC, CO
- --------------------------------------------------------------------------------
(1) See footnote (1) on page 2.
(2) See footnote (2) on page 3.
(3) Based on 4,782,162,875 Ordinary Shares of the Issuer which were issued and
outstanding as of December 4, 2007.
4
<PAGE>
SCHEDULE 13D
- ---------------------
CUSIP No. 44841T 10 7
- ---------------------
- ------ -------------------------------------------------------------------------
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
Weather Capital S.a.r.l. - Not Applicable
- ------ -------------------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
(a) [ ]
(b) [ ]
- ------ -------------------------------------------------------------------------
3 SEC USE ONLY
- ------ -------------------------------------------------------------------------
4 SOURCE OF FUNDS
OO, AF
- ------ -------------------------------------------------------------------------
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED
PURSUANT TO ITEMS 2(d) or 2(e) [ ]
- ------ -------------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF ORGANIZATION
Luxembourg
- -------------------- ------ ----------------------------------------------------
NUMBER OF SHARES 7 SOLE VOTING POWER
BENEFICIALLY OWNED 0 Ordinary Shares of the Issuer
BY EACH REPORTING ------ ----------------------------------------------------
PERSON WITH 8 SHARED VOTING POWER
0 Ordinary Shares of the Issuer
------ ----------------------------------------------------
9 SOLE DISPOSITIVE POWER
0 Ordinary Shares of the Issuer
------ ----------------------------------------------------
10 SHARED DISPOSITIVE POWER
0 Ordinary Shares of the Issuer
- ------ -------------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
0 Ordinary Shares of the Issuer (1)(2)
- ------ -------------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
CERTAIN SHARES [ ]
- ------ -------------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
0%(3)
- ------ -------------------------------------------------------------------------
14 TYPE OF REPORTING PERSON
HC, CO
- --------------------------------------------------------------------------------
(1) See footnote (1) on page 2.
(2) See footnote (2) on page 3.
(3) Based on 4,782,162,875 Ordinary Shares of the Issuer which were issued and
outstanding as of December 4, 2007.
5
<PAGE>
SCHEDULE 13D
- ---------------------
CUSIP No. 44841T 10 7
- ---------------------
- ------ -------------------------------------------------------------------------
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
Weather Investments S.p.A. - Not Applicable
- ------ -------------------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
(a) [ ]
(b) [ ]
- ------ -------------------------------------------------------------------------
3 SEC USE ONLY
- ------ -------------------------------------------------------------------------
4 SOURCE OF FUNDS
OO, AF
- ------ -------------------------------------------------------------------------
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED
PURSUANT TO ITEMS 2(d) or 2(e) [ ]
- ------ -------------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF ORGANIZATION
Italy
- -------------------- ------ ----------------------------------------------------
NUMBER OF SHARES 7 SOLE VOTING POWER
BENEFICIALLY OWNED 0 Ordinary Shares of the Issuer
BY EACH REPORTING ------ ----------------------------------------------------
PERSON WITH 8 SHARED VOTING POWER
0 Ordinary Shares of the Issuer
------ ----------------------------------------------------
9 SOLE DISPOSITIVE POWER
0 Ordinary Shares of the Issuer
------ ----------------------------------------------------
10 SHARED DISPOSITIVE POWER
0 Ordinary Shares of the Issuer
- ------ -------------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
0 Ordinary Shares of the Issuer (1)(2)
- ------ -------------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
CERTAIN SHARES [ ]
- ------ -------------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
0%(3)
- ------ -------------------------------------------------------------------------
14 TYPE OF REPORTING PERSON
HC, CO
- --------------------------------------------------------------------------------
(1) See footnote (1) on page 2.
(2) See footnote (2) on page 3.
(3) Based on 4,782,162,875 Ordinary Shares of the Issuer which were issued and
outstanding as of December 4, 2007.
6
<PAGE>
SCHEDULE 13D
- ---------------------
CUSIP No. 44841T 10 7
- ---------------------
- ------ -------------------------------------------------------------------------
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
Weather Investments II S.a.r.l. - Not Applicable
- ------ -------------------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
(a) [ ]
(b) [ ]
- ------ -------------------------------------------------------------------------
3 SEC USE ONLY
- ------ -------------------------------------------------------------------------
4 SOURCE OF FUNDS
OO, AF
- ------ -------------------------------------------------------------------------
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED
PURSUANT TO ITEMS 2(d) or 2(e) [ ]
- ------ -------------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF ORGANIZATION
Luxembourg
- -------------------- ------ ----------------------------------------------------
NUMBER OF SHARES 7 SOLE VOTING POWER
BENEFICIALLY OWNED 0 Ordinary Shares of the Issuer
BY EACH REPORTING ------ ----------------------------------------------------
PERSON WITH 8 SHARED VOTING POWER
0 Ordinary Shares of the Issuer
------ ----------------------------------------------------
9 SOLE DISPOSITIVE POWER
0 Ordinary Shares of the Issuer
------ ----------------------------------------------------
10 SHARED DISPOSITIVE POWER
0 Ordinary Shares of the Issuer
- ------ -------------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
0 Ordinary Shares of the Issuer (1)(2)
- ------ -------------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
CERTAIN SHARES [ ]
- ------ -------------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
0%(3)
- ------ -------------------------------------------------------------------------
14 TYPE OF REPORTING PERSON
HC, CO
- --------------------------------------------------------------------------------
(1) See footnote (1) on page 2.
(2) See footnote (2) on page 3.
(3) Based on 4,782,162,875 Ordinary Shares of the Issuer which were issued and
outstanding as of December 4, 2007.
7
<PAGE>
SCHEDULE 13D
- ---------------------
CUSIP No. 44841T 10 7
- ---------------------
- ------ -------------------------------------------------------------------------
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
April Holding - Not Applicable
- ------ -------------------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
(a) [ ]
(b) [ ]
- ------ -------------------------------------------------------------------------
3 SEC USE ONLY
- ------ -------------------------------------------------------------------------
4 SOURCE OF FUNDS
OO, AF
- ------ -------------------------------------------------------------------------
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED
PURSUANT TO ITEMS 2(d) or 2(e) [ ]
- ------ -------------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF ORGANIZATION
Cayman Islands
- -------------------- ------ ----------------------------------------------------
NUMBER OF SHARES 7 SOLE VOTING POWER
BENEFICIALLY OWNED 0 Ordinary Shares of the Issuer
BY EACH REPORTING ------ ----------------------------------------------------
PERSON WITH 8 SHARED VOTING POWER
0 Ordinary Shares of the Issuer
------ ----------------------------------------------------
9 SOLE DISPOSITIVE POWER
0 Ordinary Shares of the Issuer
------ ----------------------------------------------------
10 SHARED DISPOSITIVE POWER
0 Ordinary Shares of the Issuer
- ------ -------------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
0 Ordinary Shares of the Issuer (1)(2)
- ------ -------------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
CERTAIN SHARES [ ]
- ------ -------------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
0%(3)
- ------ -------------------------------------------------------------------------
14 TYPE OF REPORTING PERSON
HC, CO
- --------------------------------------------------------------------------------
(1) See footnote (1) on page 2.
(2) See footnote (2) on page 3.
(3) Based on 4,782,162,875 Ordinary Shares of the Issuer which were issued and
outstanding as of December 4, 2007.
8
<PAGE>
SCHEDULE 13D
- ---------------------
CUSIP No. 44841T 10 7
- ---------------------
- ------ -------------------------------------------------------------------------
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
February Private Trust Company Limited - Not Applicable
- ------ -------------------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
(a) [ ]
(b) [ ]
- ------ -------------------------------------------------------------------------
3 SEC USE ONLY
- ------ -------------------------------------------------------------------------
4 SOURCE OF FUNDS
OO, AF
- ------ -------------------------------------------------------------------------
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED
PURSUANT TO ITEMS 2(d) or 2(e) [ ]
- ------ -------------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF ORGANIZATION
Jersey
- -------------------- ------ ----------------------------------------------------
NUMBER OF SHARES 7 SOLE VOTING POWER
BENEFICIALLY OWNED 0 Ordinary Shares of the Issuer
BY EACH REPORTING ------ ----------------------------------------------------
PERSON WITH 8 SHARED VOTING POWER
0 Ordinary Shares of the Issuer
------ ----------------------------------------------------
9 SOLE DISPOSITIVE POWER
0 Ordinary Shares of the Issuer
------ ----------------------------------------------------
10 SHARED DISPOSITIVE POWER
0 Ordinary Shares of the Issuer
- ------ -------------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
0 Ordinary Shares of the Issuer (1)(2)
- ------ -------------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
CERTAIN SHARES [ ]
- ------ -------------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
0%(3)
- ------ -------------------------------------------------------------------------
14 TYPE OF REPORTING PERSON
CO, OO
- --------------------------------------------------------------------------------
(1) See footnote (1) on page 2.
(2) See footnote (2) on page 3.
(3) Based on 4,782,162,875 Ordinary Shares of the Issuer which were issued and
outstanding as of December 4, 2007.
9
<PAGE>
Amendment No. 1 to Schedule 13D
This Amendment No. 1 (the "Schedule 13D/A") amends and supplements the
statement on Schedule 13D filed by the Reporting Persons (as defined below) on
January 3, 2006 (the "Original Schedule 13D"). This Schedule 13D/A is being
filed to report a change in the number and percentage of outstanding Ordinary
Shares, nominal value HK$0.25 each (the "Ordinary Shares"), of Hutchison
Telecommunications International Limited (the "Issuer") beneficially owned by
the Reporting Persons, which occurred as a result of (i) the sale by Orascom
Telecom Eurasia Limited ("Orascom Eurasia") of 237,625,000 Ordinary Shares of
the Issuer over the Hong Kong Stock Exchange pursuant to placement agreements,
dated October 25, 2007 and November 12, 2007 (the "Placement Agreements")
between Orascom Eurasia and Citigroup Global Markets Asia Limited ("Citi"), and
(ii) the sale by Orascom Eurasia of its remaining 680,134,172 Ordinary Shares
pursuant to two share purchase agreements, dated December 4, 2007, which are
described in more detail below. Upon closing of both share purchase agreements
on January 3, 2008, the Reporting Persons ceased to own any Ordinary Shares of
the Issuer. The total number of outstanding Ordinary Shares of the Issuer was
4,782,162,875 as of December 4, 2007, as reported in the Corporate Substantial
Shareholder Notice filed by Hutchison Whampoa Limited with the Stock Exchange of
Hong Kong on December 7, 2007.
This Schedule 13D/A is being filed jointly by the following persons
(each, individually, a "Reporting Person" and collectively the "Reporting
Persons"): Orascom Telecom Eurasia Limited, a limited liability company
organized under the laws of Malta, Orascom Telecom Holding S.A.E., a joint stock
company incorporated under the laws of Egypt, Weather Capital S.a.r.l., a
societe a responsabilite limtee organized under the laws of Luxembourg, Weather
Investments S.p.A., a societa per aczioni, organized under the laws of Italy,
Weather Investments II S.a.r.l., a societe a responsabilite limtee organized
under the laws of Luxembourg, April Holding, an exempted limited company
organized under the laws of the Cayman Islands and February Private Trust
Company Limited (in its capacity as trustee of March Trust), an exempted limited
company organized under the laws of Jersey.
All capitalized terms contained herein but not otherwise defined shall
have the meanings ascribed to such terms in the previously filed Original
Schedule 13D.
Item 4. Purpose of Transaction
The first paragraph of Item 4 is hereby amended and restated as
follows:
The sales by the Reporting Persons of the Ordinary Shares of the Issuer
pursuant to the Placement Agreements, the Yuda Share Purchase Agreement (as
defined below) and the HWL Share Purchase Agreement (as defined below), were
effected by the Reporting Persons with the intentions to divest their holdings
in the Issuer. As a result of the closing of the Yuda Share Purchase Agreement
and the HWL Share Purchase Agreement on January 3, 2008, the Reporting Persons
no longer own any Ordinary Shares of the Issuer.
Item 4 is hereby amended to add the following before the last
paragraph:
Placement Agreements
On October 25, 2007, Orascom Eurasia entered into a placement
agreement with Citi, pursuant to which Citi agreed to use its best efforts to
procure purchasers for up to 237,625,000 Ordinary Shares of the Issuer owned by
Orascom Eurasia at a purchase price per share of HK$10.70 (the "October
Placement Agreement"). Upon closing on October 30, 2007, Orascom Eurasia sold
143,432,000 Ordinary Shares of the Issuer over the Stock Exchange of Hong Kong
at a price per share of HK$10.70, for total consideration of HK$1,534,722,400.
On November 12, 2007, Orascom Eurasia entered into a second placement
agreement with Citi, pursuant to which Citi agreed to use its best efforts to
procure purchasers for up to 94,193,000 Ordinary Shares of the Issuer owned by
Orascom Eurasia (the balance of the 237,625,000 Ordinary Shares remaining unsold
under the October Placement Agreement) at a purchase price per share of HK$10.70
(the "November Placement Agreement"). Upon closing on November 15, 2007, Orascom
Eurasia sold 94,193,000 Ordinary Shares of the Issuer over the Stock Exchange of
Hong Kong at a price per share of HK$10.70, for total consideration of
HK$1,007,865,100.
The foregoing description of the Placement Agreements is a summary and
all statements made herein related to such agreements are qualified in their
entirety by reference to the complete text of the agreements, which are filed as
Exhibits 10.1 and 10.2 hereto and are incorporated herein by reference.
Share Purchase Agreements
On December 4, 2007, Yuda Limited, a company incorporated in the
British Virgin Islands ("Yuda"), Orascom Eurasia, a company established under
the laws of Malta, and Orascom Telecom, a company incorporated under the laws of
Egypt, entered into a
10
<PAGE>
share purchase agreement, pursuant to which Yuda agreed to acquire 239,108,144
Ordinary Shares of the Issuer from Orascom Eurasia at a price per share of
HK$11.00 for total consideration of HK$2,630,189,584, to be paid at closing (the
"Yuda Share Purchase Agreement"). In consideration of Yuda entering into the
Yuda Share Purchase Agreement, Orascom Telecom unconditionally and irrevocably
guaranteed to Yuda the due and punctual performance and payment by Orascom
Eurasia. The closing of the Yuda Share Purchase Agreement was accelerated from
January 4, 2008 to January 3, 2008, pursuant to a supplemental letter, dated
December 27, 2007, between Orascom Eurasia, Orascom Telecom and Yuda (the "Yuda
Supplemental Letter").
Orascom Eurasia and Orascom Telecom entered into a second share
purchase agreement on December 4, 2007, with Hutchison Whampoa Limited, a
company incorporated in the People's Republic of China, Hong Kong ("HWL") and
Hutchison Telecommunications Investment Holdings Limited, a company incorporated
in the British Virgin Islands and an indirect wholly owned subsidiary of HWL
("HTIHL"), pursuant to which HWL through HTIHL agreed to acquire 441,026,028
Ordinary Shares of the Issuer from Orascom Eurasia at a price per share of
HK$11.00 for total consideration of HK$4,851,286,308, to be paid at closing (the
"HWL Share Purchase Agreement"). In consideration of HTIHL and HWL entering into
the HWL Share Purchase Agreement, Orascom Telecom unconditionally and
irrevocably guaranteed the due and punctual performance and payment by Orascom
Eurasia. The closing of the HWL Share Purchase Agreement was accelerated from
January 4, 2008 to January 3, 2008, pursuant to a supplemental letter, dated
December 27, 2007, between Orascom Eurasia, Orascom Telecom, HWL and HTIHL (the
"HWL Supplemental Letter," and together with the Yuda Supplemental Letter, the
"Supplemental Letters").
The foregoing description of the Yuda Share Purchase Agreement and the
HWL Share Purchase Agreement is a summary and all statements made herein related
to such agreements are qualified in their entirety by reference to the complete
text of the agreements, which are filed as Exhibits 10.3 and 10.4 hereto and are
incorporated herein by reference.
Termination of Shareholders' Agreement
Pursuant to the HWL Share Purchase Agreement, Orascom Eurasia, Orascom
Telecom, HTIHL and HWL entered into a letter agreement, dated January 3, 2008
(the "Shareholders' Agreement Termination Letter") for termination of the
Shareholders' Agreement, entered into by such parties on December 21, 2005, with
mutual release and waiver of all parties' respective rights and claims
thereunder. The two directors nominated by Orascom Eurasia to serve on the
Issuer's Board of Directors pursuant to the Shareholders' Agreement have
resigned. The Shareholders' Agreement Termination Letter is filed as Exhibit
10.5 hereto and is incorporated herein by reference.
Termination of Amended and Restated Registration Rights Agreement
Pursuant to the HWL Share Purchase Agreement, Orascom Eurasia, HTIHL,
Cheung Kong (Holdings) Limited and the Issuer entered into a letter agreement,
dated January 3, 2008 (the "Registration Rights Termination Letter") for
termination of the Amended and Restated Registration Rights Agreement, entered
into by such parties on December 21, 2005, with mutual release and waiver of all
parties' respective rights and claims thereunder. The Registration Rights
Termination Letter is filed as Exhibit 10.6 hereto and is incorporated herein by
reference.
Termination of Co-operation Agreement
In connection with the Share Purchase Agreement, dated December 21,
2005, between Orascom Eurasia, Orascom Telecom, HTIHL and HWL, Orascom Telecom
and the Issuer entered into a co-operation agreement, dated December 21, 2005
(the "Co-operation Agreement"). The Co-operation Agreement provided for
co-operation between Orascom Telecom and the Issuer in the areas of procurement;
technologies and networks; IT and international business in order to achieve
commercial, operational and technological synergies. Pursuant to the terms of
the HWL Share Purchase Agreement, Orascom Telecom and the Issuer entered into a
letter agreement, dated January 3, 2008 (the "Co-operation Termination Letter")
for termination of the Co-operation Agreement. The Co-operation Agreement and
the Co-operation Termination Letter are filed as Exhibit 10.7 and 10.8 hereto
and are incorporated herein by reference.
Item 5. Interest in Securities of the Issuer
The first two paragraphs of Item 5 are amended and restated as
follows:
The Information set forth in Item 4 hereof is hereby incorporated by
reference into this Item 5.
As a result of the closing of the share purchase agreements on January
3, 2008, Orascom Eurasia is no longer the record owner or beneficial owner of
any Ordinary Shares of the Issuer. As of such date, Orascom Telecom does not
directly or beneficially own any Ordinary Shares of the Issuer.
The Shareholders' Agreement, which provided for certain obligations
and restrictions with respect to the voting and disposition of the Ordinary
Shares held by Orascom Eurasia and HTIHL, was terminated on January 3, 2008. As
a result, the Reporting Persons are not deemed to have shared power to vote and
dispose of any Ordinary Shares of the Issuer that were previously subject to the
Shareholders' Agreement.
The final paragraph of Item 5 is amended and restated as follows:
Percentages set forth in this Schedule 13D/A were calculated based on
an aggregate total of 4,782,162,875 issued and outstanding Ordinary Shares, as
of December 4, 2007, as reported in the Corporate Substantial Shareholder Notice
filed by HWL with the Stock Exchange of Hong Kong on December 7, 2007.
Item 6. Contracts, Arrangements, Understandings or Relationships With Respect
to Securities of the Issuer
Item 6 is amended to add the following two paragraphs:
The Supplemental Letters, as described in Item 4 hereof, are filed as
Exhibits 10.9 and 10.10 to this Schedule 13D/A.
The information set forth in Item 4 hereof is incorporated herein by
reference.
Item 7. Material to be Filed as Exhibits
The documents which have been filed as Exhibits to this Schedule 13D/A are
listed in the Exhibit Index herein.
11
<PAGE>
SIGNATURE
After reasonable inquiry and to the best of my knowledge and belief, I certify
that the information set forth in this statement is true, complete and correct.
Date: January 14, 2008
ORASCOM TELECOM HOLDING S.A.E.
By: /s/ Naguib Sawiris
---------------------------
Name: Naguib Sawiris
Title: Chairman of the Board and
Chief Executive Officer
ORASCOM TELECOM EURASIA LIMITED
By: /s/ Naguib Sawiris
---------------------------
Name: Naguib Sawiris
Title: Director
WEATHER CAPITAL S.A.R.L.
By: /s/ Naguib Sawiris
---------------------------
Name: Naguib Sawiris
Title: Director
WEATHER INVESTMENTS S.P.A.
By: /s/ Naguib Sawiris
---------------------------
Name: Naguib Sawiris
Title: Director
WEATHER INVESTMENTS II S.A.R.L.
By: /s/ Naguib Sawiris
---------------------------
Name: Naguib Sawiris
Title: Director
12
<PAGE>
APRIL HOLDING
By: /s/ Naguib Sawiris
----------------------------------
Name: Naguib Sawiris
Title: Director
FEBRUARY PRIVATE TRUST COMPANY, in its
capacity as trustee of March Trust
By: /s/ Hassan Abdou
----------------------------------
Name: Hassan Abdou
Title: Director
13
<PAGE>
EXHIBIT INDEX
-------------
Exhibit
No. Description
- ------- -----------------------------------------------------------------
A. Joint Filing Agreement, dated January 3, 2006, among Orascom
Telecom Eurasia Limited, Orascom Telecom Holding J.A.E., Weather
Capital S.a.r.l., Weather Investments S.r.l., Weather Investments
II S.a.r.l., April Holding and Sebruary Private Trust Company ,
in its capacity as trustee of March Trust.*
1.1 Promissory Note, dated December 21, 2005, payable by Orascom
Telecom Eurasia Limited to Hutchison Telecommunications
Investment Holdings Limited.*
1.2 Guarantee, dated December 21, 2005, created by Orascom Telecom
Holding S.A.E. in favor of Hutchison Telecommunications
Investment Holdings Limited of certain of the obligations of
Orascom Telecom Eurasia Limited under the Promissory Note.*
1.3 Share Charge, dated December 21, 2005, created by Orascom Telecom
Eurasia Limited in favor of Hutchison Telecommunications
Investment Holdings Limited.*
2. Share Purchase Agreement, dated December 21, 2005, among
Hutchison Telecommunications Investment Holdings Limited,
Hutchison Whampoa Limited, Orascom Telecom Holding S.A.E. and
Orascom Telecom Eurasia Limited.*
3. Shareholders' Agreement, dated December 21, 2005, among Hutchison
Telecommunications Investment Holdings Limited, Hutchison Whampoa
Limited, Orascom Telecom Holding S.A.E. and Orascom Telecom
Eurasia Limited.*
4. Amended and Restated Registration Rights Agreement, dated as of
December 21, 2005, among Hutchison Telecommunications
International Limited, Hutchison Telecommunications Investment
Holdings Limited, Cheung Kong (Holdings) Limited and Orascom
Telecom Eurasia Limited.*
10.1. Placement Agreement, dated October 25, 2007, between Orascom
Telecom Eurasia Limited and Citigroup Global Markets Asia
Limited.
10.2. Placement Agreement, dated November 12, 2007, between Orascom
Telecom Eurasia Limited and Citigroup Global Markets Asia
Limited.
10.3. Share Purchase Agreement, dated December 4, 2007, among Yuda
Limited, Orascom Telecom Eurasia Limited and Orascom Telecom
Holding S.A.E.
10.4. Share Purchase Agreement, dated December 4, 2007, among Hutchison
Telecommunications Investment Holdings Limited, Hutchison Whampoa
Limited, Orascom Telecom Holding S.A.E. and Orascom Telecom
Eurasia Limited.
10.5 Shareholders' Agreement Termination Letter, dated January 3,
2008, among Hutchison Telecommunications Investment Holdings
Limited, Hutchison Whampoa Limited, Orascom Telecom Holding
S.A.E. and Orascom Telecom Eurasia Limited.
10.6 Registration Rights Termination Letter, dated January 3, 2008,
among Hutchison Telecommunications International Limited,
Hutchison Telecommunications Investment Holdings Limited, Orascom
Telecom Eurasia Limited and Cheung Kong (Holdings) Limited.
10.7 Co-operation Agreement, dated December 21, 2005 between Orascom
Telecom Holding S.A.E. and Hutchison Telecommunications
International Limited.
10.8 Co-operation Agreement Termination Letter, dated January 3, 2008,
between Hutchison Telecommunications International Limited and
Orascom Telecom Holding S.A.E.
10.9 Yuda Supplemental Letter, dated December 27, 2007, among Yuda
Limited, Orascom Telecom Holding S.A.E. and Orascom Telecom
Eurasia Limited
10.10 HWL Supplemental Letter, dated December 27, 2007, among Hutchison
Telecommunications Investment Holdings Limited, Hutchison Whampoa
Limited, Orascom Telecom Holding S.A.E. and Orascom Telecom
Eurasia Limited
* Filed with the Securities and Exchange Commission as an Exhibit
to the Schedule 13D filed on January 3, 2006 and incorporated
herein by reference
14
</TEXT>
</DOCUMENT>
<DOCUMENT>
<TYPE>EX-10.1
<SEQUENCE>2
<FILENAME>ex_10-1.txt
<DESCRIPTION>OCTOBER PLACEMENT AGREEMENT
<TEXT>
PLACEMENT AGREEMENT
25 October 2007
ORASCOM TELECOM EURASIA LIMITED
NILE CITY TOWERS, SOUTH TOWER
27TH FLOOR
CORNISH EL NILE, RAMLET BEAULAC
CAIRO, EGYPT
Dear Sirs:
Orascom Telecom Eurasia Limited (the "Selling Shareholder") is a company
incorporated in Malta with limited liability and having its registered address
at Suite 1, 17, Sir Augustus Bartolo Street, Ta' Xbiex, MSD11, Malta hereby
agrees that, subject to the terms and conditions contained herein, the Selling
Shareholder will sell up to 237,625,000 of ordinary shares, with a par value
HK$0.25 per share (all ordinary shares are collectively referred to as the
"Shares"), of Hutchison Telecommunications International Limited, a company
organized under the laws of the Cayman Islands (the "Company"), and Citigroup
Global Markets Asia Limited ("Citi" or the "Placement Agent") will act as the
Selling Shareholder's sole and exclusive agent and use its best efforts to
procure purchasers for such 237,625,000 Shares (the "Placing"). The Shares to be
offered under this Placement Agreement are referred to herein as the "Offered
Shares". All the Offered Shares are listed on The Stock Exchange of Hong Kong
Limited (the "Stock Exchange").
The Selling Shareholder agrees to sell and the Placement Agent agrees to act as
the Selling Shareholder's agent and use its best efforts to procure purchasers
for the Offered Shares at a price per Offered Share of HK$10.70 (the "Purchase
Price"). The Selling Shareholder hereby acknowledges that the Placement Agent
may at its sole discretion procure any member within the group of companies of
the Placement Agent as purchaser(s) for any of the Offered Shares at the
Purchase Price.
1. Selling Shareholder's Representations and Warranties. The Selling
Shareholder represents and warrants to, and agrees with the Placement Agent
that:
(a) (i) the Selling Shareholder owns the number of Shares of the Company
set forth opposite its name on Schedule A hereto, (ii) to the Selling
Shareholder's knowledge, the Offered Shares have been duly and validly
authorized and issued, are fully paid up and non-assessable, and rank
pari passu in all respects with the other issued Shares and (iii) were
allotted and issued by the Company more than six months prior to the
date hereof;
1
<PAGE>
(b) this Placement Agreement has been duly authorized, executed and
delivered by the Selling Shareholder and is enforceable against the
Selling Shareholder in accordance with its own terms;
(c) the Selling Shareholder is duly incorporated and validly existing
under the laws of the place of its incorporation and has full right,
authority and power to enter into and perform its obligations under
this Placement Agreement and to sell, assign, transfer and deliver the
Offered Shares to the Placement Agent for transfer to the purchasers
procured by the Placement Agent;
(d) the Selling Shareholder has, and immediately prior to the Closing Date
(as defined herein) will have, good and valid title to the Offered
Shares, free and clear of all liens, encumbrances or claims; upon
delivery of such Offered Shares, good and valid title thereto, free
and clear of all liens, encumbrances or claims, will be transferred to
the purchasers procured by the Placement Agent;
(e) no consent, approval, authorization, or order of, or filing with, any
governmental agency or body, any court, shareholder of the Company or
any other third party is required to be obtained or made by such
Selling Shareholder for the consummation of the transactions
contemplated by this Placement Agreement in connection with the sale
of the Offered Shares, other than those consents, approvals and
authorizations that have been obtained which consents, approvals and
authorizations shall remain valid until Closing;
(f) the execution of this Placement Agreement, the offer, sale and
delivery by the Selling Shareholder of the Offered Shares and the
consummation of the transactions contemplated by this Placement
Agreement do not conflict with or result in a breach or violation of
any of the terms or provisions of, require any third party consent or
constitute a default under any indenture, mortgage, deed of trust,
loan agreement or other agreement or instrument, decree, regulation or
law to which the Selling Shareholder is a party or by which the
Selling Shareholder is bound or to which any of the property or assets
of the Selling Shareholder is subject, or any of the provisions of the
Articles of Association (or similar instrument) of the Selling
Shareholder or any statute or any order, law, rule or regulation,
judgment, order or decree of any court, government or governmental
agency or body having jurisdiction over the Selling Shareholder or the
property or assets of the Selling Shareholder or violation by the
Selling Shareholder or its representatives on the board of directors
of the Company of the Rules Governing the Listing of Securities on the
Stock Exchange or any of the internal policies or guidelines of the
Company or the Securities and Futures
2
<PAGE>
Ordinance (Cap.571 of the Laws of Hong Kong) (the "SFO"), except to
the extent that any breach or violation of any loan agreement or other
agreement (but not any indenture, mortgage, deed of trust, decree,
regulation or law) would not result in a material adverse change, in
or affecting the business, assets or property of the Selling
Shareholder;
(g) other than Hong Kong stamp tax of as set forth in Section 3(a)(ii), no
stamp or other issuance or transfer taxes or duties, and no indirect
taxes or duties are payable by the purchasers procured by the
Placement Agent or the Placement Agent, as the case may be, to Hong
Kong or any political subdivision or taxing authority thereof or
therein in connection with the sale and delivery of the Offered
Shares;
(h) neither the Selling Shareholder nor any of its representatives on the
board of directors of the Company (i) is in possession or aware of any
material or "price sensitive" information (including, without
limitation, any information regarding any changes in the business and
prospects of the Company or any adverse change or prospective adverse
change in the condition of, or any actual, pending or threatened
litigation, arbitration or similar proceeding involving, the Company)
that is not described in the Company's most recent annual report or
subsequent public information releases (the "Company Information") and
(ii) has been and will be in contravention of Part XIV of the SFO or
other applicable law or regulations prohibiting "insider dealing" in
securities in connection with the offer and sale of the Offered
Shares. The Selling Shareholder has read the Company Information and,
to the best of the Selling Shareholder's knowledge, it does not
include any untrue statement of a material fact or omit to state any
material fact necessary in order to make the statements therein not
misleading. The Company, to the knowledge of the Selling Shareholder,
is in compliance with the rules and regulations, including the
reporting requirements, of Hong Kong and the United States;
(i) the offer and sale of the Offered Shares in the manner contemplated by
this Placement Agreement will be exempt from the registration
requirements of the U.S. Securities Act of 1933, as amended
("Securities Act");
(j) neither the Selling Shareholder, nor any of its affiliates or any
person acting on its or their behalf has engaged or will engage in any
directed selling efforts (as such term is defined in Regulation S
under the Securities Act ("Regulation S")) in connection with the
offer and sale of the Offered Shares, and all such persons have
complied and will comply with the offering restrictions requirement of
Regulation S to the extent applicable to the offer and sale of the
Offered Shares; provided that this
3
<PAGE>
representation shall not be deemed to be made in respect of actions
taken by the Placement Agent regarding the Offered Shares;
(k) neither the Selling Shareholder nor its affiliates nor any persons
acting on its or their behalf has engaged in or will engage in any
form of general solicitation or general advertising (as those terms
are used in Regulation D promulgated under the Securities Act) with
respect to offers or sales of the Offered Shares in the United States;
(l) the Company is a Foreign Issuer (as that term is defined in Rule 902
of Regulation S) and the Selling Shareholder reasonably believes that
on the commencement of the offering of the Offered Shares there was no
Substantial U.S. Market Interest (as that term is defined in Rule 902
of Regulation S) in the Offered Shares;
(m) neither the Selling Shareholder nor any of its affiliates nor any
person acting on its or their behalf has sold, offered for sale or
solicited an offer to buy or otherwise negotiated or will sell, offer
for sale or solicit an offer to buy or otherwise negotiate in respect
of any security which would be integrated with the sale of the Offered
Shares that would require registration of any of the Offered Shares
under the Securities Act;
(n) the Company is not, and as a result of the sale of the Offered Shares
contemplated hereby will not be, subject to regulation as an
"investment company" as defined under the United States Investment
Company Act of 1940, as amended;
(o) the Shares are listed on The New York Stock Exchange;
(p) neither the Selling Shareholder nor any of its affiliates nor any
person acting on its or their behalf has or will have, directly or
indirectly, bid for, purchased or attempted to induce any person to
bid for or purchased any Shares or any securities which may, in the
whole or in part, affect the value of the Shares;
(q) none of the Selling Shareholder, any of its subsidiaries or any
director, officer, agent, employee or affiliate of the Selling
Shareholder or any of its subsidiaries is currently subject to any
U.S. sanctions administered by the Office of Foreign Assets Control of
the U.S. Department of the Treasury ("OFAC"); and the Selling
Shareholder will not directly or indirectly use (or authorize or
enable others to use) the proceeds of the offering of the Offered
Shares hereunder, or lend, contribute or otherwise make available such
proceeds to any subsidiary, joint venture partner or other person or
entity, for the purpose of
4
<PAGE>
financing or otherwise furthering the activities of any person subject
to any U.S. sanctions administered by OFAC;
(r) none of the Selling Shareholder, any of its subsidiaries or any
director, officer, agent, employee or affiliate of the Selling
Shareholder or any of its subsidiaries does any business with
countries, entities or persons subject to any U.S. sanctions
administered by the OFAC, or to any enabling legislation or executive
order relating thereto, or any person or entity in those countries or
with those persons, or perform contracts in support of projects in or
for the benefit of those countries or those persons;
(s) all statements of fact contained in any Announcement (as defined in
Section "Announcements" below) with respect to the Selling Shareholder
are true and accurate in all material respects, and are not misleading
in any material respect, and there are no facts or matters which are
not disclosed in the Announcement the omission of which makes the
Announcement misleading in any material respect and all statements and
expressions of opinions, intention or expectation therein are made on
reasonable grounds (after due and proper consideration) and are fairly
based and honestly held and the Selling Shareholder does not disagree
in any material respect with any such statements or expressions;
(t) the Selling Shareholder does not have rights to a claim of sovereign
immunity with respect to or arising from its obligations to the
Placement Agent herein; and
(u) the Selling Shareholder has the power to submit, and pursuant to
Section 11 of this Placement Agreement, has legally, validly,
effectively and irrevocably submitted, to the jurisdiction of the
courts of Hong Kong, and has the power to designate, appoint and
empower, and pursuant to Section 11 of this Placement Agreement, has
legally, validly and effectively designated, appointed and empowered,
an agent for service of process in any suit or proceeding based on or
arising under this Placement Agreement in the courts of Hong Kong.
1A. Placement Agent's representations and warranties
1A.1 The Placement Agent warrants to the Selling Shareholder and acknowledges
and undertakes that as far as it is aware:
1A.1.1 neither it nor any of its affiliates, nor any person acting on its or
their behalf, has engaged or will engage in any form of "general solicitation"
or "general advertising" (as those terms are used in Rule 502(c) under the
Securities Act) in connection with any offer or sale of the Offered Shares in
the United States;
5
<PAGE>
1A.1.2 neither it nor any of its affiliates, nor any person acting on its or
their behalf, has engaged or will engage in any directed selling efforts (as
defined in Regulation S) with respect to Offered Shares offered or sold outside
the United States in reliance on Regulation S;
1 A.1.3 neither it nor any of its affiliates nor any person acting on its or
their behalf has offered or sold, and will not offer or sell, and neither has
procured nor will procure purchasers to purchase or procure, any Offered Shares
as part of their distribution except in accordance with Regulation S or in
accordance with an exemption from the registration requirements of the
Securities Act, it being understood that any offeree of or purchaser of Offered
Shares which is located in the United States or is a US Person shall be
reasonably believed to be a qualified institutional buyers as defined in the
U.S. Securities Exchange Act of 1934, as amended (the "Exchange Act"); and
1A.1.4it has and will not take any action in any jurisdiction that would permit
a public offering of the Offered Shares.
2. Closing.
(a) The Placement Agent shall inform the Selling Shareholder in writing of
the number of Offered Shares placed by the Placement Agent under this
Placement Agreement (the "Placed Shares") by 3 a.m. on 26 October 2007
(Hong Kong local time). Completion of the sale and purchase of the
Placed Shares shall take place on 30 October 2007 (the "Closing
Date"), or such other date as the Selling Shareholder and the
Placement Agent may agree in writing. Completion of the transfer of
the Placed Shares shall take place in CCASS on a free of payment
basis. At or before 10:30 a.m. on the Closing Date, the Selling
Shareholder shall procure that its designated CCASS participant inputs
free of payment delivery instructions in CCASS to deliver the Placed
Shares on the Closing Date in accordance with this Placement Agreement
and the General Rules and the Operational Procedures to the CCASS
stock accounts of the relevant CCASS participant(s) of the Placement
Agent as provided to the Selling Shareholder by the Placement Agent
prior to the Closing Date. As soon as practicable after the date of
this Placement Agreement or otherwise in accordance with the rules of
the Stock Exchange, Citi may, in its sole discretion, cause the sale
and purchase of the Placed Shares to be input into the Automatic Order
Matching System as operated by the Stock Exchange.
(b) The Selling Shareholder shall procure that the Placed Shares delivered
at the Closing Date in accordance with Section 2(a) shall be free from
all liens, charges and encumbrances, and together with all rights
attaching to them as at the date of this
6
<PAGE>
Placement Agreement, including the right to receive all dividends
declared, made or paid on or after the date of this Placement
Agreement.
(c) Against compliance by the Selling Shareholder with its obligations
pursuant to Sections 2(a) and 2(b) and subject to Section 6, the
Placement Agent shall, on the Closing Date, make or procure the making
of payment to the Selling Shareholder in Hong Kong dollars of the
aggregate Purchase Price of the Placed Shares (less the commissions
and expenses payable by the Selling Shareholder referred to in Section
3), the payment of which shall constitute a complete discharge of the
Placement Agent's obligations to act as the Selling Shareholder's
agent to use its best efforts to procure purchasers for the Offered
Shares hereunder. Such payment shall be made for value on the Closing
Date and to such bank account held with a leading bank in Hong Kong as
may be notified by the Selling Shareholder to the Placement Agent at
least one business day before the Closing Date.
3. Fees and Commissions.
(a) In consideration of the agreement by the Placement Agent to act as the
Selling Shareholder's agent and use its best efforts to procure
purchasers for the Offered Shares and to procure the payment for the
Placed Shares, the Selling Shareholder shall pay to the Placement
Agent the following:
(i) an underwriting commission of 1% of the aggregate Purchase Price
for the Placed Shares, which amounts the Placement Agent is
authorised to deduct in accordance with sub-section 3(c) below,
from the payments to be made by it to the Selling Shareholder;
(ii) stamp duty at the rate of HK$1.00 per HK$1,000 on the aggregate
Purchase Price for the Placed Shares, which amounts the Placement
Agent is hereby authorized to deduct in accordance with
sub-section 3(c) below, from the payments to be made by it to the
Selling Shareholder for the purposes of paying on the Selling
Shareholder's behalf such duty; and
(iii) transaction levy levied by the Securities and Futures Commission
of Hong Kong ("SFC") at the prevailing applicable rate (0.004%)
and Stock Exchange trading fee at the prevailing applicable rate
(0.005%) on the aggregate Purchase Price for the Placed Shares,
which amounts the Placement Agent is hereby authorized to deduct
in accordance with sub-section 3(c) below from
7
<PAGE>
the payments to be made by it to the Selling Shareholder for the
purposes of paying on the Selling Shareholder's behalf such levy
and trading fee.
(b) The Placement Agent and the Selling Shareholder shall each bear its
respective own legal costs and all other out-of-pocket expenses
relating to the transactions contemplated under this Placement
Agreement.
(c) The Placement Agent is hereby authorized to deduct the commissions and
expenses referred to in Sections 3(a)(i) - (iii) from the proceeds
payable to the Selling Shareholder solely for the purposes specified
therein (where applicable).
(d) All payment to be made by the Selling Shareholder pursuant to this
Clause 3 shall be made in full without any set-off, deduction or
withholding whatsoever. In the event that any set-off, deduction or
withholding is required by law to be made from such payments, the
amount payable shall be grossed-up so that the payee of such payment
receives the full amount which would have been received without such
set-off, deduction or withholding.
4. Conditions Precedent. The obligations of the Placement Agent hereunder
shall be subject in its discretion to (i) the condition that all
representations and warranties and other statements of the Selling
Shareholder herein are, at and as of the Closing Date, true and correct,
and (ii) the condition that the Selling Shareholder shall have performed
its obligations hereunder theretofore to be performed.
5. Indemnity.
(a) The Selling Shareholder will indemnify and hold harmless the Placement
Agent, its officers, directors, employees and its affiliates and each
person, if any, who controls, or is under common control with, such
Placement Agent, with the term "control" having the meaning ascribed
to it in Section 15 of the Securities Act, against any losses, claims,
damages or liabilities, joint or several, to which the Placement Agent
may become subject insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based
upon any breach of any of the representations and warranties of the
Selling Shareholder contained herein or relate to or arise in
connection with the offer of the Offered Shares and/or the sale and
purchase of the Placed Shares contemplated hereby or any other matter
or activities referred to or contemplated by this Placement Agreement,
including any losses, claims, damages or liabilities arising out of or
based upon the Selling Shareholder's
8
<PAGE>
failure to perform its obligations under this Placement Agreement,
other than any losses, claims, damages or liabilities that have been
finally judicially determined to have resulted directly from the
Placement Agent's material breach of its obligations hereunder and
will reimburse the Placement Agent for any legal or other expenses
incurred by the Placement Agent in connection with investigating or
defending any such loss, claim, damage, liability or action as such
expenses are incurred.
(b) The Selling Shareholder shall not, without the prior written consent
of the indemnified party, effect any settlement of any pending or
threatened action in respect of which any indemnified party is or
could have been a party and indemnity could have been sought hereunder
by such indemnified party unless such settlement includes (i) an
unconditional release of such indemnified party from all liability on
any claims that are the subject matter of such action and (ii) does
not include a statement as to or an admission of fault, culpability or
failure to act by or on behalf of any indemnified party.
(c) If the indemnification provided for in this Section is unavailable or
insufficient to hold harmless an indemnified party under subsection
(a) above, then the Selling Shareholder shall contribute to the amount
paid or payable by such indemnified party as a result of the losses,
claims, damages or liabilities referred to in subsection (a) above (i)
in such proportion as is appropriate to reflect the relative benefits
received by the Selling Shareholder on the one hand and the Placement
Agent on the other from the offering by the Selling Shareholder of the
Offered Shares or (ii) if the allocation provided by clause (i) above
is not permitted by applicable law, in such proportion as is
appropriate to reflect not only the relative benefits referred to in
clause (i) above but also the relative fault of the Selling
Shareholder on the one hand and the Placement Agent on the other in
connection with any matter or activities referred to or contemplated
by this Placement Agreement as well as any other relevant equitable
considerations. The relative benefits received by the Selling
Shareholder on the one hand and the Placement Agent on the other shall
be deemed to be in the same proportion as the total net proceeds from
the Placing (before deducting expenses) received by the Selling
Shareholder bear to the total discounts and commissions received by
the Placement Agent from the Selling Shareholder under this Placement
Agreement. The relative fault shall be determined by reference to,
among other things, the representations, warranties or undertakings
that resulted in such losses, claims, damages or liabilities, as well
as any other relevant considerations. The amount paid by an
indemnified party as a result of the losses, claims, damages or
liabilities referred to in the first sentence of this subsection (c)
shall be deemed to include any legal or other expenses incurred
9
<PAGE>
by such indemnified party in connection with investigating or
defending any action or claim which is the subject of this subsection
(c).
(d) The obligations of the Selling Shareholder under this Section
"Indemnity" shall be in addition to any liability which the Selling
Shareholder may otherwise have and shall extend, upon the same terms
and conditions, to the directors, officers, employees and controlling
persons within the meaning of the Securities Act or the Exchange Act,
as the case may be, of the Placement Agent and each of its affiliates
within the meaning of the Securities Act or Exchange Act (and shall
include the partners of any such affiliates).
(e) Each indemnified party under this subsection (e) shall have the right
to enforce its rights against the Selling Shareholder under this
Section "Indemnity" provided that, save to the extent notified in
writing to the relevant indemnified party, the Placement Agent
(without obligation) will have the sole conduct of any action to
enforce such rights or settle any action or claim on behalf of the
relevant indemnified person. Save as provided in this subsection (e),
indemnified parties other than the Placement Agent will not be
entitled directly to enforce their rights against any indemnifying
party under this Placement Agreement. The Placement Agent and the
Selling Shareholder may agree to terminate this Placement Agreement or
vary any of its terms without the consent of any indemnified person
and the Placement Agent will have no responsibility to any indemnified
person under or as a result of this Placement Agreement.
Each of the obligations of the Selling Shareholder set forth in this
Section "Indemnity" shall survive termination of this Placement Agreement.
6. Termination.
(a) Notwithstanding anything contained herein, the Placement Agent may by
notice to the Selling Shareholder terminate this Placement Agreement
if any of the following shall occur on or after the date of this
Placement Agreement: (i) a breach of, or any event rendering untrue or
incorrect in any respect any of the warranties and representations
contained herein or any failure to perform any of the undertakings or
agreement in this Placement Agreement; (ii) any change or development
involving a prospective change, in national or international monetary,
financial, political or economic conditions (including any disruption
to trading generally, or trading in any of the Company's securities,
on the Stock Exchange of Hong Kong, the London Stock Exchange, the New
York Stock Exchange or the
10
<PAGE>
Nasdaq) or currency exchange rates or foreign exchange rates or
foreign exchange controls; (iii) a general moratorium on commercial
banking activities in Hong Kong, London or New York declared by the
relevant authorities or a material disruption in commercial banking or
securities settlement or clearance services in Hong Kong, the United
Kingdom or the United States; (iv) a change or development involving a
prospective change in the condition, business, results of operations
or prospects of the Company and its subsidiaries as a whole from that
set forth in the Company's most recent annual report or subsequent
information releases issued prior to the date hereof in the judgment
of Citi, is material and adverse and that makes it impracticable to
conduct the placement of the Offered Shares in the manner contemplated
herein; (v) a change or development involving a prospective change in
taxation adversely affecting the Company, the Offered Shares or the
transfer thereof; or (vi) any outbreak or escalation of hostilities or
act of terrorism involving Hong Kong, the United Kingdom or the United
States or the declaration by Hong Kong, the United Kingdom or the
United States of a national emergency or war; which in the case of
clauses (ii) and (vi) would in Citi's judgment, be likely to prejudice
materially the success of the offer and distribution of the Offered
Shares or dealing in the Offered Shares in the secondary market.
(b) Each of the respective indemnities, agreements, representations,
warranties and other statements by or on behalf of the Selling
Shareholder, as set forth in this Placement Agreement shall remain in
full force and effect, regardless of any investigation (or any
statement as to the results thereof) made by or on behalf of the
Placement Agent or any controlling person of the Placement Agent, and
shall survive delivery of and payment for the Placed Shares.
(c) The Placement Agent shall have the right to terminate its obligations
under this Placement Agreement if the Placed Shares are not delivered
by or on behalf of the Selling Shareholder as provided herein or to
effect the purchase of such Placed Shares as are delivered without
relieving the Selling Shareholder from liability for default.
7. Announcements. The Placement Agent and the Selling Shareholder agrees,
should the transactions contemplated by this Placement Agreement be the
subject of a press release, that the contents of that press release will be
jointly agreed by them and used jointly by them on or after the date on
which this Placement Agreement is executed. Except for such joint press
release, the transactions contemplated by this Placement Agreement may not
publicly be disclosed to any third party or otherwise publicly referred to
by either party without the prior
11
<PAGE>
written consent of the other party. Notwithstanding the foregoing, the
Selling Shareholder and the Placement Agent are entitled to notify the
Company and any relevant stock exchange of the occurrence of its holding of
the Shares in the Company falling below or rising above any applicable
threshold.
8. Selling Shareholder's Covenants. The Selling Shareholder covenants and
agrees with the Placement Agent that:
(a) except for a transfer of Shares by the Selling Shareholder to a wholly
owned subsidiary or to a wholly owned subsidiary of its holding
company (and the Selling Shareholder shall procure such transferee(s)
to comply with the provisions of this paragraph (a) below), the
Selling Shareholder will not offer, sell, contract to sell, pledge or
otherwise dispose of, directly or indirectly, any additional Shares or
securities convertible into or exchangeable or exercisable for Shares
or any derivative instruments relating to the Shares or deposit any
such securities in an American or Global Depositary Receipt facility
during the period commencing on the date hereof and ending on the date
90 days after the date of the Closing Date, in each case without the
prior written consent (not to be unreasonably withheld) of the
Placement Agent;
(b) the Selling Shareholder will promptly pay or transfer to or to the
order of the Placement Agent on behalf of the purchasers of the Placed
Shares upon receipt, any dividend or distribution declared by the
Company in respect of the Shares for which a record date occurs on or
after the date of this Placement Agreement;
(c) the Selling Shareholder shall forthwith notify the Placement Agent of
any change affecting any of the representations and warranties
contained in Section "Selling Shareholder Representations and
Warranties" which occur at any time before the Closing Date;
(d) if, at any time prior to the Closing Date, the Selling Shareholder has
knowledge of the occurrence of any event as a result of which the
information contained in the Company Information would include an
untrue statement of a material fact or omit to state any material fact
necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading, the Selling
Shareholder will promptly notify the Placement Agent thereof and the
reasons therefore;
(e) the Selling Shareholder will provide the Placement Agent, at its
request, with all such information known to it or which on reasonable
enquiry ought to be known to it and relating to the
12
<PAGE>
Company and its subsidiaries or otherwise as may be reasonably
required by the Placement Agent in connection with the Placing for the
purposes of complying with all requirements of applicable law
(including any due diligence defences) or of the Stock Exchange or of
the SFC;
(f) the Selling Shareholder shall do, or procure the doing of, all such
other acts and things as may be reasonably required to be done by it
to carry into effect the Placing in accordance with the terms of this
Placement Agreement;
(g) if this Placement Agreement is terminated pursuant to Clause 6, the
Selling Shareholder shall remain liable to the Placement Agent for the
payment of all costs, charges and expenses referred to in Clauses
3(a)(ii) and (iii) to the extent already incurred in accordance with
the terms of this Placement Agreement; and
(h) the Selling Shareholder hereby acknowledges that, in addition to the
commissions, costs, charges and expenses referred to in Clause 3(a),
the Placement Agent shall be entitled to keep for its own account any
brokerage, fees or commissions that it may receive from the purchasers
of the Placed Shares.
9. Notices. All statements, requests, notices and agreements hereunder shall
be in writing, and if to the Placement Agent shall be delivered or sent by
mail, telex or facsimile transmission. The address and facsimile number of
Citi and the Selling Shareholder are as follows (unless modifications are
notified to each of the parties hereto upon not less than five business
days' notice):
(a) Citi: Citigroup Global Markets Asia Limited, 50/F Citibank Tower,
Citibank Plaza, 3 Garden Road, Hong Kong; Attn: Edward Lam; Phone:
+852 2501 2815 Fax: +852 3018 7167;
(b) Selling Shareholder: Orascom Telecom Eurasia Limited, Nile City
Towers, South Tower 27th Floor, Cornish El Nile, Ramlet Beaulac,
Cairo, Egypt; Attn: Ragy Soliman; Phone: +202 461 50505051 Fax: +20 2
461 5165
13
<PAGE>
10. Miscellaneous. This Placement Agreement shall be binding upon, and inure
solely to the benefit of, the Placement Agent and the Selling Shareholder
and, to the extent provided herein, any directors, officers, employees and
controlling persons of the Placement Agent, and their heirs, executors,
administrators, successors and assigns, and no other person shall acquire
or have any right under or by virtue of this Placement Agreement. No
purchaser of any of the Placed Shares shall be deemed a successor or assign
by reason merely of such purchase. Unless otherwise specified herein, all
references herein to date and time shall mean the local time at Hong Kong.
11. Jurisdictions. The Selling Shareholder hereby irrevocably submits to the
exclusive jurisdiction of the courts of Hong Kong in any suit or proceeding
arising out of or relating to this Placement Agreement or the transactions
contemplated hereby and the Selling Shareholder irrevocably waives any
objection which it may now or hereafter have to the service of process or
the laying of venue in connection with any such proceeding. The Selling
Shareholder irrevocably appoints The Law Debenture Corporation (H.K.)
Limited of Room 3105, Alexandra House, 18 Chater Road, Central, Hong Kong,
as its authorized agent upon which process may be served in any such suit
or proceeding, and agrees that service of process upon such agent, and
written notice of said service to the Selling Shareholder, by the person
serving the same to the address provided in the Section "Notices", shall be
deemed in every respect effective service of process upon the Selling
Shareholder in any such suit or proceeding. If for any reason such agent
shall cease to be such agent for service of process, the Selling
Shareholder shall forthwith appoint a new agent for service of process in
Hong Kong and deliver to the Placement Agent a copy of the new agent's
acceptance of that appointment within 30 days.
12. Governing Law. This Placement Agreement shall be governed by, and construed
in accordance with, the laws of Hong Kong without regard to principles of
conflicts of laws to the extent the application of such principles would
cause the laws of a different state to apply.
13. Execution. This Placement Agreement may be executed by any one or more of
the parties hereto in any number of counterparts, each of which shall be
deemed to be an original, but all such counterparts shall together
constitute one and the same instrument.
14
<PAGE>
If the foregoing is in accordance with your understanding, please sign and
return to us three (3) original counterparts hereof, and upon the acceptance
hereof by you, this Placement Agreement and such acceptance hereof shall
constitute a binding agreement between the Selling Shareholder and the Placement
Agent.
Very truly yours,
CITIGROUP GLOBAL MARKETS ASIA LIMITED
By: /s/ Edward Lam
---------------------------------
Name: Edward Lam
Title: Director, Head of Hong Kong Investment Banking
Accepted and agreed:
ORASCOM TELECOM EURASIA LIMITED
By:
---------------------------------
Name:
Title:
15
<PAGE>
If the foregoing is in accordance with your understanding, please sign and
return to us three (3) original counterparts hereof, and upon the acceptance
hereof by you, this Placement Agreement and such acceptance hereof shall
constitute a binding agreement between the Selling Shareholder and the Placement
Agent.
Very truly yours,
CITIGROUP GLOBAL MARKETS ASIA LIMITED
By:
---------------------------------
Name:
Title:
Accepted and agreed:
ORASCOM TELECOM EURASIA LIMITED
By: /s/ Aldo Mareuse
--------------------------------
Name: Aldo Mareuse
Title: Authorized Representative
15
<PAGE>
Schedule A
Number of
Shares
Number of to be Sold
Shares ("Offered
Selling Shareholder Owned Shares")
- ------------------------------- ----------- -----------
Orascom Telecom Eurasia Limited 917,759,172 237,625,000
16
</TEXT>
</DOCUMENT>
<DOCUMENT>
<TYPE>EX-10.2
<SEQUENCE>3
<FILENAME>ex_10-2.txt
<DESCRIPTION>NOVEMBER PLACEMENT AGREEMENT
<TEXT>
PLACEMENT AGREEMENT
12 November 2007
ORASCOM TELECOM EURASIA LIMITED
NILE CITY TOWERS, SOUTH TOWER
27TH FLOOR
CORNISH EL NILE, RAMLET BEAULAC
CAIRO, EGYPT
Dear Sirs:
Orascom Telecom Eurasia Limited (the "Selling Shareholder") is a company
incorporated in Malta with limited liability and having its registered address
at Suite 1, 17, Sir Augustus Bartolo Street, Ta' Xbiex, MSD11, Malta hereby
agrees that, subject to the terms and conditions contained herein, the Selling
Shareholder will sell up to 94,193,000 of ordinary shares, with a par value
HK$0.25 per share (all ordinary shares are collectively referred to as the
"Shares"), of Hutchison Telecommunications International Limited, a company
organized under the laws of the Cayman Islands (the "Company"), and Citigroup
Global Markets Asia Limited ("Citi" or the "Placement Agent") will act as the
Selling Shareholder's sole and exclusive agent and use its best efforts to
procure purchasers for such 94,193,000 Shares (the "Placing"). The Shares to be
offered under this Placement Agreement are referred to herein as the "Offered
Shares". All the Offered Shares are listed on The Stock Exchange of Hong Kong
Limited (the "Stock Exchange").
The Selling Shareholder agrees to sell and the Placement Agent agrees to act as
the Selling Shareholder's agent and use its best efforts to procure purchasers
for the Offered Shares at a price per Offered Share of HK$10.70 (the "Purchase
Price"). The Selling Shareholder hereby acknowledges that the Placement Agent
may at its sole discretion procure any member within the group of companies of
the Placement Agent as purchaser(s) for any of the Offered Shares at the
Purchase Price.
1. Selling Shareholder's Representations and Warranties. The Selling
Shareholder represents and warrants to, and agrees with the Placement Agent
that:
(a) (i) the Selling Shareholder owns the number of Shares of the Company
set forth opposite its name on Schedule A hereto, (ii) to the Selling
Shareholder's knowledge, the Offered Shares have been duly and validly
authorized and issued, are fully paid up and non-assessable, and rank
pari passu in all respects with the other issued Shares and (iii) were
allotted and issued by the Company more than six months prior to the
date hereof;
<PAGE>
(b) this Placement Agreement has been duly authorized, executed and
delivered by the Selling Shareholder and is enforceable against the
Selling Shareholder in accordance with its own terms;
(c) the Selling Shareholder is duly incorporated and validly existing
under the laws of the place of its incorporation and has full right,
authority and power to enter into and perform its obligations under
this Placement Agreement and to sell, assign, transfer and deliver the
Offered Shares to the Placement Agent for transfer to the purchasers
procured by the Placement Agent;
(d) the Selling Shareholder has, and immediately prior to the Closing Date
(as defined herein) will have, good and valid title to the Offered
Shares, free and clear of all liens, encumbrances or claims; upon
delivery of such Offered Shares, good and valid title thereto, free
and clear of all liens, encumbrances or claims, will be transferred to
the purchasers procured by the Placement Agent;
(e) no consent, approval, authorization, or order of, or filing with, any
governmental agency or body, any court, shareholder of the Company or
any other third party is required to be obtained or made by such
Selling Shareholder for the consummation of the transactions
contemplated by this Placement Agreement in connection with the sale
of the Offered Shares, other than those consents, approvals and
authorizations that have been obtained which consents, approvals and
authorizations shall remain valid until Closing;
(f) the execution of this Placement Agreement, the offer, sale and
delivery by the Selling Shareholder of the Offered Shares and the
consummation of the transactions contemplated by this Placement
Agreement do not conflict with or result in a breach or violation of
any of the terms or provisions of, require any third party consent or
constitute a default under any indenture, mortgage, deed of trust,
loan agreement or other agreement or instrument, decree, regulation or
law to which the Selling Shareholder is a party or by which the
Selling Shareholder is bound or to which any of the property or assets
of the Selling Shareholder is subject, or any of the provisions of the
Articles of Association (or similar instrument) of the Selling
Shareholder or any statute or any order, law, rule or regulation,
judgment, order or decree of any court, government or governmental
agency or body having jurisdiction over the Selling Shareholder or the
property or assets of the Selling Shareholder or violation by the
Selling Shareholder or its representatives on the board of directors
of the Company of the Rules Governing the Listing of Securities on the
Stock Exchange or any of the internal policies or guidelines of the
Company or the Securities and Futures Ordinance (Cap.571 of the Laws
of Hong Kong) (the "SFO"), except to the extent that any breach or
violation of any loan
2
<PAGE>
agreement or other agreement (but not any indenture, mortgage, deed of
trust, decree, regulation or law) would not result in a material
adverse change, in or affecting the business, assets or property of
the Selling Shareholder;
(g) other than Hong Kong stamp tax of as set forth in Section 3(a)(ii), no
stamp or other issuance or transfer taxes or duties, and no indirect
taxes or duties are payable by the purchasers procured by the
Placement Agent or the Placement Agent, as the case may be, to Hong
Kong or any political subdivision or taxing authority thereof or
therein in connection with the sale and delivery of the Offered
Shares;
(h) neither the Selling Shareholder nor any of its representatives on the
board of directors of the Company (i) is in possession or aware of any
material or "price sensitive" information (including, without
limitation, any information regarding any changes in the business and
prospects of the Company or any adverse change or prospective adverse
change in the condition of, or any actual, pending or threatened
litigation, arbitration or similar proceeding involving, the Company)
that is not described in the Company's most recent annual report or
subsequent public information releases (the "Company Information") and
(ii) has been and will be in contravention of Part XIV of the SFO or
other applicable law or regulations prohibiting "insider dealing" in
securities in connection with the offer and sale of the Offered
Shares. The Selling Shareholder has read the Company Information and,
to the best of the Selling Shareholder's knowledge, it does not
include any untrue statement of a material fact or omit to state any
material fact necessary in order to make the statements therein not
misleading. The Company, to the knowledge of the Selling Shareholder,
is in compliance with the rules and regulations, including the
reporting requirements, of Hong Kong and the United States;
(i) the offer and sale of the Offered Shares in the manner contemplated by
this Placement Agreement will be exempt from the registration
requirements of the U.S. Securities Act of 1933, as amended
("Securities Act");
(j) neither the Selling Shareholder, nor any of its affiliates or any
person acting on its or their behalf has engaged or will engage in any
directed selling efforts (as such term is defined in Regulation S
under the Securities Act ("Regulation S")) in connection with the
offer and sale of the Offered Shares, and all such persons have
complied and will comply with the offering restrictions requirement of
Regulation S to the extent applicable to the offer and sale of the
Offered Shares; provided that this representation shall not be deemed
to be made in respect of actions taken by the Placement Agent
regarding the Offered Shares;
3
<PAGE>
(k) neither the Selling Shareholder nor its affiliates nor any persons
acting on its or their behalf has engaged in or will engage in any
form of general solicitation or general advertising (as those terms
are used in Regulation D promulgated under the Securities Act) with
respect to offers or sales of the Offered Shares in the United States;
(1) the Company is a Foreign Issuer (as that term is defined in Rule 902
of Regulation S) and the Selling Shareholder reasonably believes that
on the commencement of the offering of the Offered Shares there was no
Substantial U.S. Market Interest (as that term is defined in Rule 902
of Regulation S) in the Offered Shares;
(m) neither the Selling Shareholder nor any of its affiliates nor any
person acting on its or their behalf has sold, offered for sale or
solicited an offer to buy or otherwise negotiated or will sell, offer
for sale or solicit an offer to buy or otherwise negotiate in respect
of any security which would be integrated with the sale of the Offered
Shares that would require registration of any of the Offered Shares
under the Securities Act;
(n) the Company is not, and as a result of the sale of the Offered Shares
contemplated hereby will not be, subject to regulation as an
"investment company" as defined under the United States Investment
Company Act of 1940, as amended;
(o) the Shares are listed on The New York Stock Exchange;
(p) neither the Selling Shareholder nor any of its affiliates nor any
person acting on its or their behalf has or will have, directly or
indirectly, bid for, purchased or attempted to induce any person to
bid for or purchased any Shares or any securities which may, in the
whole or in part, affect the value of the Shares;
(q) none of the Selling Shareholder, any of its subsidiaries or any
director, officer, agent, employee or affiliate of the Selling
Shareholder or any of its subsidiaries is currently subject to any
U.S. sanctions administered by the Office of Foreign Assets Control of
the U.S. Department of the Treasury ("OFAC"); and the Selling
Shareholder will not directly or indirectly use (or authorize or
enable others to use) the proceeds of the offering of the Offered
Shares hereunder, or lend, contribute or otherwise make available such
proceeds to any subsidiary, joint venture partner or other person or
entity, for the purpose of financing or otherwise furthering the
activities of any person subject to any U.S. sanctions administered by
OFAC;
4
<PAGE>
(r) none of the Selling Shareholder, any of its subsidiaries or any
director, officer, agent, employee or affiliate of the Selling
Shareholder or any of its subsidiaries does any business with
countries, entities or persons subject to any U.S. sanctions
administered by the OFAC, or to any enabling legislation or executive
order relating thereto, or any person or entity in those countries or
with those persons, or perform contracts in support of projects in or
for the benefit of those countries or those persons;
(s) all statements of fact contained in any Announcement (as defined in
Section "Announcements" below) with respect to the Selling Shareholder
are true and accurate in all material respects, and are not misleading
in any material respect, and there are no facts or matters which are
not disclosed in the Announcement the omission of which makes the
Announcement misleading in any material respect and all statements and
expressions of opinions, intention or expectation therein are made on
reasonable grounds (after due and proper consideration) and are fairly
based and honestly held and the Selling Shareholder does not disagree
in any material respect with any such statements or expressions;
(t) the Selling Shareholder does not have rights to a claim of sovereign
immunity with respect to or arising from its obligations to the
Placement Agent herein; and
(u) the Selling Shareholder has the power to submit, and pursuant to
Section 11 of this Placement Agreement, has legally, validly,
effectively and irrevocably submitted, to the jurisdiction of the
courts of Hong Kong, and has the power to designate, appoint and
empower, and pursuant to Section 11 of this Placement Agreement, has
legally, validly and effectively designated, appointed and empowered,
an agent for service of process in any suit or proceeding based on or
arising under this Placement Agreement in the courts of Hong Kong.
1A. Placement Agent's representations and warranties
1A.1 The Placement Agent warrants to the Selling Shareholder and acknowledges
and undertakes that as far as it is aware:
1A.1.1 neither it nor any of its affiliates, nor any person acting on its or
their behalf, has engaged or will engage in any form of "general solicitation"
or "general advertising" (as those terms are used in Rule 502(c) under the
Securities Act) in connection with any offer or sale of the Offered Shares in
the United States;
1A.1.2 neither it nor any of its affiliates, nor any person acting on its or
their behalf, has engaged or will engage in any directed selling efforts (as
defined in Regulation S) with respect to Offered Shares offered or sold outside
the United States in reliance on Regulation S;
5
<PAGE>
1A.1.3 neither it nor any of its affiliates nor any person acting on its or
their behalf has offered or sold, and will not offer or sell, and neither has
procured nor will procure purchasers to purchase or procure, any Offered Shares
as part of their distribution except in accordance with Regulation S or in
accordance with an exemption from the registration requirements of the
Securities Act, it being understood that any offeree of or purchaser of Offered
Shares which is located in the United States or is a US Person shall be
reasonably believed to be a qualified institutional buyers as defined in the
U.S. Securities Exchange Act of 1934, as amended (the "Exchange Act"); and
1A.1.4 it has and will not take any action in any jurisdiction that would permit
a public offering of the Offered Shares.
2. Closing.
(a) The Placement Agent shall inform the Selling Shareholder in writing of
the number of Offered Shares placed by the Placement Agent under this
Placement Agreement (the "Placed Shares") by 11 p.m. on 12 November
2007 (Hong Kong local time). Completion of the sale and purchase of
the Placed Shares shall take place on 15 November 2007 (the "Closing
Date"), or such other date as the Selling Shareholder and the
Placement Agent may agree in writing. Completion of the transfer of
the Placed Shares shall take place in CCASS on a free of payment
basis. At or before 10:30 a.m. on the Closing Date, the Selling
Shareholder shall procure that its designated CCASS participant inputs
free of payment delivery instructions in CCASS to deliver the Placed
Shares on the Closing Date in accordance with this Placement Agreement
and the General Rules and the Operational Procedures to the CCASS
stock accounts of the relevant CCASS participant(s) of the Placement
Agent as provided to the Selling Shareholder by the Placement Agent
prior to the Closing Date. As soon as practicable after the date of
this Placement Agreement or otherwise in accordance with the rules of
the Stock Exchange, Citi may, in its sole discretion, cause the sale
and purchase of the Placed Shares to be input into the Automatic Order
Matching System as operated by the Stock Exchange.
(b) The Selling Shareholder shall procure that the Placed Shares delivered
at the Closing Date in accordance with Section 2(a) shall be free from
all liens, charges and encumbrances, and together with all rights
attaching to them as at the date of this Placement Agreement,
including the right to receive all dividends declared, made or paid on
or after the date of this Placement Agreement.
(c) Against compliance by the Selling Shareholder with its obligations
pursuant to Sections 2(a) and 2(b) and subject to Section 6, the
Placement Agent shall, on the Closing Date, make or procure the
6
<PAGE>
making of payment to the Selling Shareholder in Hong Kong dollars of
the aggregate Purchase Price of the Placed Shares (less the
commissions and expenses payable by the Selling Shareholder referred
to in Section 3), the payment of which shall constitute a complete
discharge of the Placement Agent's obligations to act as the Selling
Shareholder's agent to use its best efforts to procure purchasers for
the Offered Shares hereunder. Such payment shall be made for value on
the Closing Date and to such bank account held with a leading bank in
Hong Kong as may be notified by the Selling Shareholder to the
Placement Agent at least one business day before the Closing Date.
3. Fees and Commissions.
(a) In consideration of the agreement by the Placement Agent to act as the
Selling Shareholder's agent and use its best efforts to procure
purchasers for the Offered Shares and to procure the payment for the
Placed Shares, the Selling Shareholder shall pay to the Placement
Agent the following:
(i) a commission:
(A) in the event that the number of Offered Shares placed by the
Placement Agent under this Placement Agreement is less than
94,193,000 Shares, of 1% of the aggregate Purchase Price for
the Placed Shares, which amounts the Placement Agent is
authorised to deduct in accordance with sub-section 3(c)
below, from the payments to be made by it to the Selling
Shareholder, or
(B) in the event that the number of Offered Shares placed by the
Placement Agent under this Placement Agreement is equal to
94,193,000 Shares, of HK$22,791,588.50, which amounts the
Placement Agent is authorised to deduct in accordance with
sub-section 3(c) below, from the payments to be made by it
to the Selling Shareholder;
(ii) stamp duty at the rate of HK$1.00 per HK$1,000 on the aggregate
Purchase Price for the Placed Shares, which amounts the Placement
Agent is hereby authorized to deduct in accordance with
sub-section 3(c) below, from the payments to be made by it to the
Selling Shareholder for the purposes of paying on the Selling
Shareholder's behalf such duty; and
7
<PAGE>
(iii) transaction levy levied by the Securities and Futures Commission
of Hong Kong ("SFC") at the prevailing applicable rate (0.004%)
and Stock Exchange trading fee at the prevailing applicable rate
(0.005%) on the aggregate Purchase Price for the Placed Shares,
which amounts the Placement Agent is hereby authorized to deduct
in accordance with sub-section 3(c) below from the payments to be
made by it to the Selling Shareholder for the purposes of paying
on the Selling Shareholder's behalf such levy and trading fee.
(b) The Placement Agent and the Selling Shareholder shall each bear its
respective own legal costs and all other out-of-pocket expenses
relating to the transactions contemplated under this Placement
Agreement.
(c) The Placement Agent is hereby authorized to deduct the commissions and
expenses referred to in Sections 3(a)(i) - (iii) from the proceeds
payable to the Selling Shareholder solely for the purposes specified
therein (where applicable).
(d) All payment to be made by the Selling Shareholder pursuant to this
Clause 3 shall be made in full without any set-off, deduction or
withholding whatsoever. In the event that any set-off, deduction or
withholding is required by law to be made from such payments, the
amount payable shall be grossed-up so that the payee of such payment
receives the full amount which would have been received without such
set-off, deduction or withholding.
4. Conditions Precedent. The obligations of the Placement Agent hereunder
shall be subject in its discretion to (i) the condition that all
representations and warranties and other statements of the Selling
Shareholder herein are, at and as of the Closing Date, true and correct,
and (ii) the condition that the Selling Shareholder shall have performed
its obligations hereunder theretofore to be performed.
5. Indemnity.
(a) The Selling Shareholder will indemnify and hold harmless the Placement
Agent, its officers, directors, employees and its affiliates and each
person, if any, who controls, or is under common control with, such
Placement Agent, with the term "control" having the meaning ascribed
to it in Section 15 of the Securities Act, against any losses, claims,
damages or liabilities, joint or several, to which the Placement Agent
may become subject insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based
upon any
8
<PAGE>
breach of any of the representations and warranties of the Selling
Shareholder contained herein or relate to or arise in connection with
the offer of the Offered Shares and/or the sale and purchase of the
Placed Shares contemplated hereby or any other matter or activities
referred to or contemplated by this Placement Agreement, including any
losses, claims, damages or liabilities arising out of or based upon
the Selling Shareholder's failure to perform its obligations under
this Placement Agreement, other than any losses, claims, damages or
liabilities that have been finally judicially determined to have
resulted directly from the Placement Agent's material breach of its
obligations hereunder and will reimburse the Placement Agent for any
legal or other expenses incurred by the Placement Agent in connection
with investigating or defending any such loss, claim, damage,
liability or action as such expenses are incurred.
(b) The Selling Shareholder shall not, without the prior written consent
of the indemnified party, effect any settlement of any pending or
threatened action in respect of which any indemnified party is or
could have been a party and indemnity could have been sought hereunder
by such indemnified party unless such settlement includes (i) an
unconditional release of such indemnified party from all liability on
any claims that are the subject matter of such action and (ii) does
not include a statement as to or an admission of fault, culpability or
failure to act by or on behalf of any indemnified party.
(c) If the indemnification provided for in this Section is unavailable or
insufficient to hold harmless an indemnified party under subsection
(a) above, then the Selling Shareholder shall contribute to the amount
paid or payable by such indemnified party as a result of the losses,
claims, damages or liabilities referred to in subsection (a) above (i)
in such proportion as is appropriate to reflect the relative benefits
received by the Selling Shareholder on the one hand and the Placement
Agent on the other from the offering by the Selling Shareholder of the
Offered Shares or (ii) if the allocation provided by clause (i) above
is not permitted by applicable law, in such proportion as is
appropriate to reflect not only the relative benefits referred to in
clause (i) above but also the relative fault of the Selling
Shareholder on the one hand and the Placement Agent on the other in
connection with any matter or activities referred to or contemplated
by this Placement Agreement as well as any other relevant equitable
considerations. The relative benefits received by the Selling
Shareholder on the one hand and the Placement Agent on the other shall
be deemed to be in the same proportion as the total net proceeds from
the Placing (before deducting expenses) received by the Selling
Shareholder bear to the total discounts and commissions received by
the Placement Agent from the Selling Shareholder under this Placement
Agreement. The
9
<PAGE>
relative fault shall be determined by reference to, among other
things, the representations, warranties or undertakings that resulted
in such losses, claims, damages or liabilities, as well as any other
relevant considerations. The amount paid by an indemnified party as a
result of the losses, claims, damages or liabilities referred to in
the first sentence of this subsection (c) shall be deemed to include
any legal or other expenses incurred by such indemnified party in
connection with investigating or defending any action or claim which
is the subject of this subsection (c).
(d) The obligations of the Selling Shareholder under this Section
"Indemnity" shall be in addition to any liability which the Selling
Shareholder may otherwise have and shall extend, upon the same terms
and conditions, to the directors, officers, employees and controlling
persons within the meaning of the Securities Act or the Exchange Act,
as the case may be, of the Placement Agent and each of its affiliates
within the meaning of the Securities Act or Exchange Act (and shall
include the partners of any such affiliates).
(e) Each indemnified party under this subsection (e) shall have the right
to enforce its rights against the Selling Shareholder under this
Section "Indemnity" provided that, save to the extent notified in
writing to the relevant indemnified party, the Placement Agent
(without obligation) will have the sole conduct of any action to
enforce such rights or settle any action or claim on behalf of the
relevant indemnified person. Save as provided in this subsection (e),
indemnified parties other than the Placement Agent will not be
entitled directly to enforce their rights against any indemnifying
party under this Placement Agreement. The Placement Agent and the
Selling Shareholder may agree to terminate this Placement Agreement or
vary any of its terms without the consent of any indemnified person
and the Placement Agent will have no responsibility to any indemnified
person under or as a result of this Placement Agreement.
Each of the obligations of the Selling Shareholder set forth in this
Section "Indemnity" shall survive termination of this Placement Agreement.
6. Termination.
(a) Notwithstanding anything contained herein, the Placement Agent may by
notice to the Selling Shareholder terminate this Placement Agreement
if any of the following shall occur on or after the date of this
Placement Agreement: (i) a breach of, or any event rendering untrue or
incorrect in any respect any of the warranties and representations
contained herein or any failure to perform any of the undertakings or
agreement in this Placement
10
<PAGE>
Agreement; (ii) any change or development involving a prospective
change, in national or international monetary, financial, political or
economic conditions (including any disruption to trading generally, or
trading in any of the Company's securities, on the Stock Exchange of
Hong Kong, the London Stock Exchange, the New York Stock Exchange or
the Nasdaq) or currency exchange rates or foreign exchange rates or
foreign exchange controls; (iii) a general moratorium on commercial
banking activities in Hong Kong, London or New York declared by the
relevant authorities or a material disruption in commercial banking or
securities settlement or clearance services in Hong Kong, the United
Kingdom or the United States; (iv) a change or development involving a
prospective change in the condition, business, results of operations
or prospects of the Company and its subsidiaries as a whole from that
set forth in the Company's most recent annual report or subsequent
information releases issued prior to the date hereof in the judgment
of Citi, is material and adverse and that makes it impracticable to
conduct the placement of the Offered Shares in the manner contemplated
herein; (v) a change or development involving a prospective change in
taxation adversely affecting the Company, the Offered Shares or the
transfer thereof; or (vi) any outbreak or escalation of hostilities or
act of terrorism involving Hong Kong, the United Kingdom or the United
States or the declaration by Hong Kong, the United Kingdom or the
United States of a national emergency or war; which in the case of
clauses (ii) and (vi) would in Citi's judgment, be likely to prejudice
materially the success of the offer and distribution of the Offered
Shares or dealing in the Offered Shares in the secondary market.
(b) Each of the respective indemnities, agreements, representations,
warranties and other statements by or on behalf of the Selling
Shareholder, as set forth in this Placement Agreement shall remain in
full force and effect, regardless of any investigation (or any
statement as to the results thereof) made by or on behalf of the
Placement Agent or any controlling person of the Placement Agent, and
shall survive delivery of and payment for the Placed Shares.
(c) The Placement Agent shall have the right to terminate its obligations
under this Placement Agreement if the Placed Shares are not delivered
by or on behalf of the Selling Shareholder as provided herein or to
effect the purchase of such Placed Shares as are delivered without
relieving the Selling Shareholder from liability for default.
7. Announcements. The Placement Agent and the Selling Shareholder agrees,
should the transactions contemplated by this Placement Agreement be the
subject of a press release, that the contents of that
11
<PAGE>
press release will be jointly agreed by them and used jointly by them on or
after the date on which this Placement Agreement is executed. Except for
such joint press release, the transactions contemplated by this Placement
Agreement may not publicly be disclosed to any third party or otherwise
publicly referred to by either party without the prior written consent of
the other party. Notwithstanding the foregoing, the Selling Shareholder and
the Placement Agent are entitled to notify the Company and any relevant
stock exchange of the occurrence of its holding of the Shares in the
Company falling below or rising above any applicable threshold.
8. Selling Shareholder's Covenants. The Selling Shareholder covenants and
agrees with the Placement Agent that:
(a) except for a transfer of Shares by the Selling Shareholder to a wholly
owned subsidiary or to a wholly owned subsidiary of its holding
company (and the Selling Shareholder shall procure such transferee(s)
to comply with the provisions of this paragraph (a) below), the
Selling Shareholder will not offer, sell, contract to sell, pledge or
otherwise dispose of, directly or indirectly, any additional Shares or
securities convertible into or exchangeable or exercisable for Shares
or any derivative instruments relating to the Shares or deposit any
such securities in an American or Global Depositary Receipt facility
during the period commencing on the date hereof and ending on the date
90 days after the date of the Closing Date, in each case without the
prior written consent (not to be unreasonably withheld) of the
Placement Agent;
(b) the Selling Shareholder will promptly pay or transfer to or to the
order of the Placement Agent on behalf of the purchasers of the Placed
Shares upon receipt, any dividend or distribution declared by the
Company in respect of the Shares for which a record date occurs on or
after the date of this Placement Agreement;
(c) the Selling Shareholder shall forthwith notify the Placement Agent of
any change affecting any of the representations and warranties
contained in Section "Selling Shareholder Representations and
Warranties" which occur at any time before the Closing Date;
(d) if, at any time prior to the Closing Date, the Selling Shareholder has
knowledge of the occurrence of any event as a result of which the
information contained in the Company Information would include an
untrue statement of a material fact or omit to state any material fact
necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading, the Selling
Shareholder will promptly notify the Placement Agent thereof and the
reasons therefore;
12
<PAGE>
(e) the Selling Shareholder will provide the Placement Agent, at its
request, with all such information known to it or which on reasonable
enquiry ought to be known to it and relating to the Company and its
subsidiaries or otherwise as may be reasonably required by the
Placement Agent in connection with the Placing for the purposes of
complying with all requirements of applicable law (including any due
diligence defences) or of the Stock Exchange or of the SFC;
(f) the Selling Shareholder shall do, or procure the doing of, all such
other acts and things as may be reasonably required to be done by it
to carry into effect the Placing in accordance with the terms of this
Placement Agreement;
(g) if this Placement Agreement is terminated pursuant to Clause 6, the
Selling Shareholder shall remain liable to the Placement Agent for the
payment of all costs, charges and expenses referred to in Clauses
3(a)(ii) and (iii) to the extent already incurred in accordance with
the terms of this Placement Agreement; and
(h) the Selling Shareholder hereby acknowledges that, in addition to the
commissions, costs, charges and expenses referred to in Clause 3(a),
the Placement Agent shall be entitled to keep for its own account any
brokerage, fees or commissions that it may receive from the purchasers
of the Placed Shares.
9. Notices. All statements, requests, notices and agreements hereunder shall
be in writing, and if to the Placement Agent shall be delivered or sent by
mail, telex or facsimile transmission. The address and facsimile number of
Citi and the Selling Shareholder are as follows (unless modifications are
notified to each of the parties hereto upon not less than five business
days' notice):
(a) Citi: Citigroup Global Markets Asia Limited, 50/F Citibank Tower,
Citibank Plaza, 3 Garden Road, Hong Kong; Attn: Edward Lam; Phone:
+852 2501 2815 Fax: +852 3018 7167;
(b) Selling Shareholder: Orascom Telecom Eurasia Limited, Nile City
Towers, South Tower 27th Floor, Cornish El Nile, Ramlet Beaulac,
Cairo, Egypt; Attn: Ragy Soliman; Phone: +202 461 5050 /5051 Fax: +20
2 461 5165
13
<PAGE>
10. Miscellaneous. This Placement Agreement shall be binding upon, and inure
solely to the benefit of, the Placement Agent and the Selling Shareholder
and, to the extent provided herein, any directors, officers, employees and
controlling persons of the Placement Agent, and their heirs, executors,
administrators, successors and assigns, and no other person shall acquire
or have any right under or by virtue of this Placement Agreement. No
purchaser of any of the Placed Shares shall be deemed a successor or assign
by reason merely of such purchase. Unless otherwise specified herein, all
references herein to date and time shall mean the local time at Hong Kong.
11. Jurisdictions. The Selling Shareholder hereby irrevocably submits to the
exclusive jurisdiction of the courts of Hong Kong in any suit or proceeding
arising out of or relating to this Placement Agreement or the transactions
contemplated hereby and the Selling Shareholder irrevocably waives any
objection which it may now or hereafter have to the service of process or
the laying of venue in connection with any such proceeding. The Selling
Shareholder irrevocably appoints The Law Debenture Corporation (H.K.)
Limited of Room 3105, Alexandra House, 18 Chater Road, Central, Hong Kong,
as its authorized agent upon which process may be served in any such suit
or proceeding, and agrees that service of process upon such agent, and
written notice of said service to the Selling Shareholder, by the person
serving the same to the address provided in the Section "Notices", shall be
deemed in every respect effective service of process upon the Selling
Shareholder in any such suit or proceeding. If for any reason such agent
shall cease to be such agent for service of process, the Selling
Shareholder shall forthwith appoint a new agent for service of process in
Hong Kong and deliver to the Placement Agent a copy of the new agent's
acceptance of that appointment within 30 days.
12. Governing Law. This Placement Agreement shall be governed by, and construed
in accordance with, the laws of Hong Kong without regard to principles of
conflicts of laws to the extent the application of such principles would
cause the laws of a different state to apply.
14
<PAGE>
13. Execution. This Placement Agreement may be executed by any one or more of
the parties hereto in any number of counterparts, each of which shall be
deemed to be an original, but all such counterparts shall together
constitute one and the same instrument.
If the foregoing is in accordance with your understanding, please sign and
return to us three (3) original counterparts hereof, and upon the acceptance
hereof by you, this Placement Agreement and such acceptance hereof shall
constitute a binding agreement between the Selling Shareholder and the Placement
Agent.
Very truly yours,
CITIGROUP GLOBAL MARKETS ASIA LIMITED
By: /s/ Edward Lam
-------------------------------------------------
Name: Edward Lam
Title: Director, Head of Hong Kong Investment Banking
Accepted and agreed:
ORASCOM TELECOM EURASIA LIMITED
By:
-------------------------------------------------
Name:
Title:
15
<PAGE>
13. Execution. This Placement Agreement may be executed by any one or more of
the parties hereto in any number of counterparts, each of which shall be
deemed to be an original, but all such counterparts shall together
constitute one and the same instrument.
If the foregoing is in accordance with your understanding, please sign and
return to us three (3) original counterparts hereof, and upon the acceptance
hereof by you, this Placement Agreement and such acceptance hereof shall
constitute a binding agreement between the Selling Shareholder and the Placement
Agent.
Very truly yours,
CITIGROUP GLOBAL MARKETS ASIA LIMITED
By:
-------------------------------------------------
Name:
Title:
Accepted and agreed:
ORASCOM TELECOM EURASIA LIMITED
By: /s/ Ragy Soliman
-------------------------------------------------
Name: Ragy Soliman
Title: General Counsel
15
<PAGE>
Schedule A
Number of
Shares
Number of to be sold
Shares ("Offered
Selling Shareholder Owned Shares")
- --------------------------------------- ----------- ----------
Orascom Telecom Eurasia Limited Limited 774,327,172 94,193,000
16
</TEXT>
</DOCUMENT>
<DOCUMENT>
<TYPE>EX-10.3
<SEQUENCE>4
<FILENAME>ex_10-3.txt
<DESCRIPTION>YUDA SHARE PURCHASE AGREEMENT
<TEXT>
Execution version
================================================================================
4 December 2007
SHARE PURCHASE AGREEMENT
amongst
YUDA LIMITED
and
ORASCOM TELECOM EURASIA LIMITED
and
ORASCOM TELECOM HOLDING S.A.E.
================================================================================
<PAGE>
TABLE OF CONTENTS
Page
1. INTERPRETATION.............................................................1
2. SALE AND PURCHASE..........................................................5
3. CONSIDERATION..............................................................5
3A. CONDITIONS.................................................................6
4. PRE-CLOSING OBLIGATIONS....................................................6
5. CLOSING....................................................................7
6. SELLER'S AND OTH'S WARRANTIES..............................................7
7. PURCHASER'S WARRANTIES.....................................................8
8. OTH'S GUARANTEE............................................................8
9. CONFIDENTIALITY AND ANNOUNCEMENTS..........................................9
10. ASSIGNMENT................................................................10
11. FURTHER ASSURANCE.........................................................10
12. ENTIRE AGREEMENT..........................................................10
13. SEVERANCE AND VALIDITY....................................................10
14. VARIATIONS................................................................10
15. REMEDIES AND WAIVERS......................................................10
16. EFFECT OF CLOSING.........................................................11
17. SURVIVAL AND RIGHTS OF RESCISSION.........................................11
18. THIRD PARTY RIGHTS........................................................11
19. PAYMENTS..................................................................11
20. COSTS AND EXPENSES........................................................11
21. NOTICES...................................................................12
22. COUNTERPARTS..............................................................13
23. GOVERNING LAW AND JURISDICTION............................................13
24. AGENT FOR SERVICE OF PROCESS..............................................13
THE SCHEDULE : WARRANTIES.....................................................15
(i)
<PAGE>
THIS AGREEMENT is made on the 4 day of December 2007
BETWEEN:
(1) YUDA LIMITED, a company incorporated in the British Virgin Islands
whose registered office is at Pasea Estate, Road Town, Tortola, the
British Virgin Islands (the "Purchaser");
(2) ORASCOM TELECOM EURASIA LIMITED, a company established in accordance
with the laws of the British Virgin Islands whose registered office is
at 1, 17, Sir Augustus Bartolo Street, Ta' Xinex, Malta (the "Seller");
and
(4) ORASCOM TELECOM HOLDING S.A.E., a company established in accordance
with the laws of the Arab Republic of Egypt whose principal place of
business is at 2005A Nile City Towers, Cornish El Nile, Ramlet Beaulac,
Cairo, Egypt (the "OTH").
WHEREAS:
(A) The Seller, a wholly owned subsidiary of OTH, has agreed to sell and
the Purchaser has agreed to purchase, the Sale Shares (as defined in
Clause 1.1 (Interpretation)) on the terms and conditions of this
Agreement.
(B) OTH has agreed to give the guarantee set forth in Clause 8 (OTH's
Guarantee), and to undertake certain other obligations as set out in this
Agreement.
NOW IT IS HEREBY AGREED as follows:
1. INTERPRETATION
1.1 In this Agreement:
"Affiliates" means, with respect to any company, its
subsidiaries or holding companies or any
subsidiaries of such holding companies.
"Business Day" means a day (other than a Saturday or Sunday
or a public holiday) when commercial banks
generally open for business in Hong Kong and
the Arab Republic of Egypt.
"Cayman Islands Register of means the register of members of the
Members" Company kept and maintained in the Cayman
Islands from time to time.
"Cayman Islands Register of means the register of transfers of shares
Transfers" of the Company kept and maintained in the
Cayman Islands from time to time.
"Closing" means the closing of the sale and purchase
of the Sale Shares in accordance with the
terms of this
1
<PAGE>
Agreement.
"Closing Date" 4 January 2008 or such earlier date as the
parties hereto may agree in writing.
"Conditions" has the meaning given to it in Clause 3A.1.
"Companies Ordinance" means the Companies Ordinance, Chapter 32 of
the Laws of Hong Kong.
"Company" means Hutchison Telecommunications
International Limited, a company incorporated
under the laws of the Cayman Islands, and
whose shares are listed on the Stock Exchange
(Stock Code: 2332), and whose American
depositary shares are listed on the New York
Stock Exchange, Inc. (Ticker: HTX).
"Consideration" means the consideration payable in HK$ in
immediately available funds being the
aggregate Purchase Price for the Sale Shares
as set out in Clause 3 (Consideration).
"Encumbrance" means liens, security interests, options,
rights of first refusal, rights of first
offer, tag along rights, claims, mortgages,
charges, licences to third parties, leases to
third parties or security agreements or any
other material restrictions or limitations on
the use of real or personal property or
irregularitiesin title thereto.
"Financing Parties" means those banks and financial
institutions and institutional and
professional investors that provide finance
from time to time to the Seller and its
Affiliates where such finance is
secured by the Sale Shares; and
"Financing Party" shall be construed
accordingly.
"Governmental Authority" means any international, supranational,
national, provincial, regional, federal,
state, municipal or local government, any
instrumentality, subdivision, court,
administrative or regulatory agency or
commission or other authority thereof, or any
quasi-governmental, self-regulatory or
private body exercising any regulatory,
taxing, importing or other governmental or
quasi-governmental authority, which shall
include where applicable, the Stock Exchange,
the Cairo and Alexandria Stock Exchange, the
Hong Kong Securities and Futures Commission
and the US Securities and Exchange
Commission.
"HK$" or "Hong Kong the lawful currency of Hong Kong.
2
<PAGE>
Dollars"
"holding company" has the meaning given to it in the Companies
Ordinance.
"Hong Kong" means the Hong Kong Special Administrative
Region of the People's Republic of China.
"HWL" means Hutchison Whampoa Limited of 22nd
Floor, Hutchison House, 10 Harcourt Road,
Hong Kong.
"Law" means any statute, law, ordinance, rule,
regulation or guidelines of any Governmental
Authority.
"Listing Rules" means the Rules Governing the Listing of
Securities on the Stock Exchange.
"Long Stop Time" means 5:00 p.m. on 3 January, 2008
(Hong Kong time).
"Loss" or "Losses" means any and all losses, claims,
liabilities, damages, judgments, proceedings,
arbitration, assessments, charges, fines and
penalties, interest, reasonable costs and
expenses, including reasonable expenses of
investigation and enforcement of any claim or
indemnity and all reasonable legal and other
professional fees and expenses.
"Person" means and includes an individual, a
partnership, a joint venture, a corporation,
a limited liability company, a limited
liability partnership, a trust, an
incorporated organisation and a Governmental
Authority.
"Purchase Price" means HK$11.00 per Sale Share.
"Purchaser's Warranties" means the representations and warranties
by the Purchaser referred to in
Clause 8.1 (Purchaser's Warranties).
"Register of Members" means the register of members of the
Company kept and maintained by its Hong
Kong branch share registrar.
"Sale Shares" means 239,108,144 Shares in the issued
share capital of the Company.
"Security Agent" means a security or collateral agent
and any replacement or successor thereof,
acting for the benefit of the Financing
Parties.
"Seller's Designated means such bank account as designated in
writing by
3
<PAGE>
Account" the Seller (or the Security Agent) to the
Purchaser at least 5 Business Days prior to
the Closing Date for effecting transfer of
the Consideration pursuant to the terms
hereof.
"Shares" means ordinary shares of nominal value
HK$0.25 each in the share capital of the
Company.
"Stock Exchange" means The Stock Exchange of Hong Kong
Limited.
"subsidiary" has the meaning given to it in the Companies
Ordinance.
"Tax" or "Taxation" means any income, gross receipts,
withholding, sales or value added tax.
"Transaction Documents" means this Agreement and other
documents contemplated to be executed and
exchanged prior to or at Closing.
"Warranties" means the representations and warranties in
Clause 7.1 (Seller's and OTH's Warranties)
and set out in the Schedule (Warranties).
1.2 In this Agreement, unless the context otherwise requires:
(i) any reference in this Agreement to "writing" or comparable
expressions includes a reference to facsimile transmission or
comparable means of communication (excluding, for the avoidance of
doubt, email);
(ii) words expressed in the singular number shall include the plural
and vice versa, words expressed in the masculine shall include the
feminine and neuter gender and vice versa;
(iii) references to Clauses, Schedules and Recitals are references to
clauses, schedules and recitals of this Agreement;
(iv) reference to "day" or "days" are to calendar days;
(v) this "Agreement" or any other agreement or document shall be
construed as a reference to this Agreement or, as the case may be,
such other agreement or document as the same may have been, or may
from time to time be, amended, varied, novated or supplemented;
(vi) "include," "includes," and "including" are deemed to be followed
by "without limitation" whether or not they are in fact followed
by such words or words of similar import;
(vii) the table of contents and headings are inserted for convenience
only and do not affect the construction of this Agreement;
4
<PAGE>
(viii) references herein to statutory provisions shall be construed as
references to those provisions as amended or re-enacted or as
their application is modified by other provisions and shall
include any provisions of which they are re-enactments (whether
with or without modification) but in each case as at the date of
this Agreement;
(ix) references to a "company" include any company, corporation or
other body corporate wherever and however incorporated or
established;
(x) references to "party" or "parties" are to a party to or the
parties to this Agreement; and
(xi) references to any English legal term for any action, remedy,
method of financial proceedings, legal document, legal status,
court, official or any legal concept or thing shall, in respect of
any jurisdiction other than England, be deemed to include what
most nearly approximates in that jurisdiction to the English
legal term.
1.3 The Schedule to this Agreement is incorporated into and form an integral
part of this Agreement.
2. SALE AND PURCHASE
2.1 The Seller shall sell and the Purchaser shall purchase the Sale Shares
with all rights now or in the future attaching to them (including the
right to receive all dividends, distributions or any return of capital
declared, made or paid on or after the date of this Agreement) on the
terms and conditions of this Agreement.
2.2 The Seller covenants and confirms that, subject only to satisfaction of
the Conditions, it has the right to transfer legal and beneficial title to
the Sale Shares.
2.3 The Seller covenants and confirms that the Sale Shares shall be sold and
purchased at Closing free from all Encumbrances.
2.4 The Seller waives and shall procure the waiver of any restrictions on
transfer (including all pre-emption rights) which may exist in relation to
the Sale Shares.
2.5 Neither the Seller nor the Purchaser shall be obliged to complete the sale
and purchase of any of the Sale Shares unless the sale and purchase of all
the Sale Shares is completed simultaneously.
3. CONSIDERATION
The consideration for the sale and purchase of the Sale Shares shall be
the payment of the sum of HK$2,630,189,584 (Hong Kong Dollars Two Billion
Six Hundred and Thirty Million One Hundred and Eighty Nine Thousand Five
Hundred and Eighty Four Only) at Closing in accordance with Clause 5.2.
5
<PAGE>
3A. CONDITION
3A.1 The agreement to sell and purchase the Sale Shares contained in Clause 2
is conditional upon the delivery to the Seller of:
(i) a deed of release relating to the security over the Sale
Shares previously granted in favour of the Security Agent, and
executed by the Security Agent and/or such other Financing
Party or Parties as may be required for this purpose; and
(ii) any other consents required by the Security Agent or any such
Financing Party or Parties for the transfer of the Sale Shares
pursuant to the terms of the financing secured by the Sale
Shares (the "Conditions").
3A.2 The Seller shall use its best endeavours to ensure that the Conditions
are fulfilled promptly after the date of this Agreement, and in any
event on or before the Long Stop Time. The Seller shall notify the
Purchaser in writing promptly upon becoming aware that the Conditions
have been fulfilled.
3A.3 If the Conditions are not fulfilled by the Long Stop Time, the
Purchaser shall be entitled to terminate this Agreement by written
notice to the others. In such event none of the parties shall have any
claim under this Agreement of any nature whatsoever against the others
except in respect of any rights and liabilities which have accrued
before such termination.
4. PRE-CLOSING OBLIGATIONS
4.1 Simultaneous with or after the execution and delivery of this Agreement
by all parties and prior to the Closing Date, the Seller shall deliver
or procure the delivery of the following to the Purchaser:
(a) a written request in the prescribed form for removal of the Sale
Shares registered in the name of the Security Agent (or its
nominee) from the Register of Members to the Cayman Islands
Register of Members;
(b) a certified extract of the written resolutions of the directors
of the Seller approving and authorising the execution, delivery
and performance of this Agreement (including the sale of the Sale
Shares to the Purchaser as of and with effect from the Closing
Date) and each of the other Transaction Documents to which it is
a party;
(c) a certified extract of the written resolutions of the directors
of OTH approving and authorising the execution, delivery and
performance of this Agreement and each of the other Transaction
Documents to which it is a party;
(d) a certified copy of each power of attorney (if any) under which
any document to be delivered to the Purchaser has been executed; and
(e) an original incumbency certificate from the registered agent
of the Seller in the British Virgin Islands (or its equivalent
in Malta) dated prior to the date of this Agreement.
6
<PAGE>
4.2 Simultaneous with or after the execution and delivery of this Agreement
by all parties and prior to the Closing Date, the Purchaser shall
deliver to the Seller:
(a) deliver to the Seller a certified extract of the resolutions of the
directors of the Purchaser approving and authorising the execution,
delivery and performance of this Agreement and each of the other
Transaction Documents to which it is a party; and
(b) deliver to the Seller a certified copy of each power of attorney
(if any) under which any document to be delivered to the Seller has
been executed.
5. CLOSING
5.1 Subject to fulfilment of the Conditions, Closing shall take place at 12
noon, Hong Kong time, on the Closing Date at the offices of HWL at
22/F, Hutchison House, 10 Harcourt Road, Hong Kong or at such other
time or place as is agreed in writing by the Seller and the Purchaser.
5.2 At Closing and against delivery to the Seller of a copy irrevocable
instructions issued for payment of the full amount of the Consideration
into the Seller's Designated Account by wire transfer, the Seller
shall:
(i) deliver or procure the delivery to the Purchaser or a Person
designated by the Purchaser of a stock transfer form in
relation to the transfer of the Sale Shares to the Purchaser
duly executed by the Seller or the Security Agent (or its
nominee);
(ii) provide such assistance as the Purchaser may reasonably
require for effecting registration of the transfer of the Sale
Shares to the Purchaser as of the Closing Date; and
(iii) deliver or procure that there be delivered to the Purchaser or
a Person designated by the Purchaser an original share
certificate issued by the Company in the name of the Seller or
the Security Agent (or its nominee) representing the Sale
Shares for cancellation.
5.3 If the provisions of Clause 5.2 are not complied with on the Closing
Date, the Purchaser shall not be obliged to complete this Agreement and
may treat this Agreement as terminated for breach of condition and
require immediate repayment of the Consideration to the extent received
in the Seller's Designated Account by the Seller (without limiting the
Purchaser's rights and remedies under this Agreement).
6. SELLER'S AND OTH'S WARRANTIES
6.1 The Seller hereby represents and warrants to the Purchaser that each of
the Warranties is true and accurate in all respects and not misleading
as at the date of this Agreement.
6.2 OTH hereby represents and warrants to the Purchaser that each of Warranty
1.1(ii) and, insofar as they relate to OTH, Warranties 1.2(i), (ii) and
(iii) and 1.3(ii) are true and accurate in all respects and not
misleading as at the date of this Agreement.
7
<PAGE>
6.3 The Seller and OTH acknowledge that the Purchaser are entering into this
Agreement on the basis of and in reliance upon representations in the
terms of the Warranties.
6.4 Each of the Warranties shall be separate and independent and (unless
expressly provided otherwise) shall not be limited by reference to any
other Warranty or by anything in this Agreement.
7. PURCHASER'S WARRANTIES
7.1 The Purchaser hereby represents and warrants to the Seller and OTH as
of the date of this Agreement that each of the warranties and
representations in this Clause 7 is true and accurate in all respects
and not misleading as at the date of this Agreement:
(i) The Purchaser is wholly owned and controlled ultimately by Mr
Li Ka-shing and is a corporation duly organised, validly
existing and in good standing under the laws of the British
Virgin Islands.
(ii) The Purchaser is not in receivership or liquidation nor has it
taken any step to enter liquidation, and no petition has been
presented for winding up the Purchaser. There are no grounds
on which a petition or application could be based for the
winding up or appointment of a receiver of the Purchaser.
(iii) The Purchaser has the corporate power and authority to
execute, deliver and perform its obligations under and
consummate the transactions contemplated by each of the
Transaction Documents to which it is a party and the other
instruments and agreements to be executed and delivered by the
Purchaser as contemplated hereby and thereby.
(iv) The entry into and performance of the Transaction Documents to
which the Purchaser is a party will not constitute a breach by
the Purchaser of or default under: (A) any provision of the
organisational documents of the Purchaser; (B) any legally
binding obligation or any material agreement or undertaking or
the terms of any guarantee by which the Purchaser is bound; or
(C) any Law applicable to the Purchaser;
7.2 Each of the Purchaser's Warranties shall be separate and independent
and (unless expressly provided otherwise) shall not be limited by
reference to any other Purchaser's Warranty or by anything in this
Agreement.
7.3 The Purchaser acknowledges that the Seller and OTH are entering into
this Agreement on the basis of and in reliance upon representations in
the terms of the Purchaser's Warranties.
8. OTH'S GUARANTEE
8.1 In consideration of the Purchaser entering into this Agreement, OTH
unconditionally and irrevocably guarantees to the Purchaser the due and
punctual performance and payment by the Seller of all its financial and
other obligations under or pursuant to this Agreement (the "Seller's
Guaranteed Obligations").
8.2 If and whenever the Seller defaults for any reason whatsoever in the
performance of any of the Seller's Guaranteed Obligations, OTH shall
immediately upon demand
8
<PAGE>
unconditionally perform (or procure the performance of) and satisfy (or
procure the satisfaction of) the Seller's Guaranteed Obligations as if
it was the principal obligor in regard to which such default has been
made.
8.3 This guarantee is to be a continuing guarantee and accordingly is to
remain in force until all Seller's Guaranteed Obligations shall have
been performed or satisfied. This guarantee is in addition to and
without prejudice to and not in substitution for any rights or security
which the Purchaser may now or hereafter have or hold for the
performance and observance of the Seller's Guaranteed Obligations.
8.4 As a separate and independent obligation, OTH agrees (as primary
obligor and not only as surety) to indemnify, defend and hold harmless
the Purchaser from time to time (without set-off or counterclaim) from
and against any and all Losses suffered by the Purchaser to the extent
of any relevant limit on the liability of the Seller in this Agreement
as a result of (i) the failure by the Seller to perform any of the
Seller's Guaranteed Obligations; or (ii) any of the Seller's Guaranteed
Obligations (including, without limitation, any moneys payable) not
being enforceable, effective against or recoverable from the Seller by
reason of any legal limitation, disability or incapacity on or of the
Seller or any other fact or circumstances whatsoever (other than any
limitation imposed by this Agreement). The amount of the Loss or of any
payment to be made by OTH pursuant to this Clause 8.4 or any other
provision of this Clause 8 shall be equal to, and shall in no
circumstances exceed, the amount which the Purchaser would otherwise
have been entitled to recover from the Seller under the terms of this
Agreement.
8.5 The liability of OTH under this Clause 8:
(i) shall not be released or diminished by any variation of the
Seller's Guaranteed Obligations or any forbearance, neglect or
delay in seeking performance of the Seller's Guaranteed
Obligations or any granting of time for such performance; and
(ii) shall not be affected or impaired by reason of any other fact
or event which in the absence of this provision would or might
constitute or afford a legal or equitable discharge or release
or a defence to a guarantor.
8.6 OTH waives any right it may have of first requiring the Purchaser to
proceed against the Seller before claiming from OTH under this Clause 8.
9. CONFIDENTIALITY AND ANNOUNCEMENTS
No announcement, statement, press conference or other communication
shall be (or authorised to be) made, released, issued or held by or on
behalf of any party or its directors, officers, employees, agents or
advisers before, on or after Closing concerning this Agreement, or the
subject matter or provisions of, or transactions or matters referred to
in or contemplated by, or negotiations leading to, this Agreement,;
provided that nothing in the foregoing shall prohibit the issue or
release by any party of any announcement or circular if and to the
extent required by law or any regulatory body or the rules of any
recognised stock exchange, including the Stock Exchange, New York Stock
Exchange, Inc. and the Cairo and Alexandria Stock Exchange, on which
the shares of such party, its Affiliates or the Company are listed but
the party
9
<PAGE>
with an obligation to issue or release an announcement or a circular
shall consult with the other parties insofar as is reasonably
practicable before complying with such an obligation.
10. ASSIGNMENT
This Agreement may not be transferred, assigned, pledged or
hypothecated by any party hereto without the express written consent of
the other parties hereto.
11. FURTHER ASSURANCE
The Seller and OTH shall from time to time and at their own cost do,
execute and deliver or procure to be done, executed and delivered all
such further acts, documents and things required by, and in a form
reasonably satisfactory to, the Purchaser to give full effect to this
Agreement and its rights, powers and remedies under this Agreement. The
Purchaser shall from time to time and at their own cost do, execute and
deliver or procure to be done, executed and delivered all such further
acts, documents and things required by, and in a form reasonably
satisfactory to, the Seller and OTH to give full effect to this
Agreement and its rights, powers and remedies under this Agreement.
12. ENTIRE AGREEMENT
This Agreement, together with each other Transaction Documents,
constitute the whole agreement between the parties and supersedes any
previous arrangements or agreements between them relating to the sale
and purchase of the Sale Shares.
13. SEVERANCE AND VALIDITY
13.1 If any provision of this Agreement is or becomes illegal, invalid or
unenforceable in any respect under the law of any jurisdiction, such
provision shall apply with whatever deletion or modification is
necessary so that the provision is legal, valid and enforceable and
gives effect to the commercial intention of the parties.
13.2 To the extent it is not possible to delete or modify the provision, in
whole or in part, under Clause 13.1, then such provision or part of it
shall, to the extent that it is illegal, invalid or unenforceable, be
deemed not to form part of this Agreement and the legality, validity
and enforceability of the remainder of this Agreement shall, subject to
any deletion or modification made under Clause 13.1, not be affected.
14. VARIATIONS
No variation of this Agreement shall be effective unless in writing and
signed by the parties.
15. REMEDIES AND WAIVERS
15.1 No waiver of any right under this Agreement shall be effective unless
in writing. Unless expressly stated otherwise a waiver shall be
effective only in the circumstances for which it is given.
10
<PAGE>
15.2 No delay or omission by any party in exercising any right or remedy
provided by law or under this Agreement shall constitute a waiver of
such right or remedy. 15.3 The single or partial exercise of a right
or remedy under this Agreement shall not preclude any other nor
restrict any further exercise of any such right or remedy.
15.3 The single and partial exercise of a right or remedy under this Agreement
shall not preclude any rights or remedies provided by law.
15.4 The rights and remedies provided in this Agreement are cumulative and do
not exclude any rights or remedies provided by law.
16. EFFECT OF CLOSING
The provisions of this Agreement which remain to be performed following
Closing shall continue in full force and effect notwithstanding
Closing.
17. SURVIVAL AND RIGHTS OF RESCISSION
17.1 Subject to Clause 5.3, no party shall have any right to rescind this
Agreement under any circumstance.
17.2 The representations and warranties of any party contained in this
Agreement shall survive the sale and purchase of the Sale Shares pursuant
to this Agreement.
18. THIRD PARTY RIGHTS
This Agreement is made for the benefit of the parties, their successors
and permitted assigns and is not intended to benefit or be enforceable
by any other person.
19. PAYMENTS
19.1 Any amount payable by the Seller or OTH to the Purchaser or by the
Purchaser to the Seller or OTH shall be made in full without set-off or
counter-claim and free from any deduction or withholding whatsoever,
except as required by law.
19.2 If any deduction or withholding is required by law to be made from any
payment or if the recipient is subject to Tax in respect of such
payment, the payer shall increase the amount of the payment to the
extent necessary to ensure that the net amount received and retained by
the recipient (after taking into account all deductions, withholdings
or Tax) is equal to the amount it would have received had the payment
not been subject to any such deductions, withholdings or Tax.
20. COSTS AND EXPENSES
20.1 Except as provided otherwise, each party shall pay its own costs and
expenses in connection with the negotiations, preparation and
performance of this Agreement and the other Transaction Documents.
20.2 Any transfer, registration, stamp, documentary or similar taxes
chargeable in connection with the transfer of the Sale Shares under
this Agreement shall be borne equally by the Seller and the Purchaser.
The Seller and the Purchaser shall co-operate in minimising any such
taxes and in the timely making of all filings, returns, reports and
forms as may be required in connection therewith.
11
<PAGE>
21. NOTICES
21.1 Any notice or other communication to be given under or in connection with
this Agreement ("Notice") shall be in the English language in writing and
signed by or on behalf of the party giving it and marked for the attention
of the relevant party. A Notice may be delivered personally or sent by
fax, pre-paid recorded delivery or pre paid registered airmail to the
address or fax number provided in Clause 21.3.
21.2 A Notice shall be deemed to have been received:
(i) at the time of delivery if delivered personally;
(ii) at the time of transmission if sent by fax;
(iii) two Business Days after the time and date of posting if sent by
pre-paid recorded delivery; or
(iv) five Business Days after the time and date of posting if sent by
pre-paid registered airmail,
provided that if deemed receipt of any Notice occurs after 6.00
p.m. or is not on a Business Day, deemed receipt of the Notice
shall be 9.00 a.m. on the next Business Day. References to time
in this Clause 21 are to local time in the country of the
addressee.
21.3 The addresses and fax numbers for service of Notice are:
Purchaser:
Name: Yuda Limited
Address: c/o 7th Floor,
Cheung Kong Center,
2 Queen's Road Central,
Hong Kong
For the attention of: Ms. Ezra Pau
Fax number: (852) 2537 8184
Seller:
Name: Orascom Telecom Eurasia Limited
Address: c/o 2005A Nile City Towers - South Tower
Cornish El Nile
Ramlet Beaulac - 11221
Cairo, Egypt
For the attention of: Legal Department
Fax number: 202 2461 5055
12
<PAGE>
OTH
Name: Orascom Telecom Holding S.A.E.
Address: 2005A Nile City Towers - South Tower
Cornish El Nile
Ramlet Beaulac
Cairo
Egypt
For the attention of: Mr. Naguib Sawiris, Chairman & CEO
Fax number: 202 2461 5055
With a copy to: Orascom Telecom Holding S.A.E.
Address: 2005A Nile City Towers - South Tower
Cornish El Nile
Ramlet Beaulac
Cairo
Egypt
For the attention of: Legal Department
Fax number: 202 2461 5165
21.4 A party shall notify the other parties of any change to its address in
accordance with the provisions of this Clause 21 provided that such
notification shall only be effective on the later of the date specified
in the notification and 5 (five) Business Days after deemed receipt.
22. COUNTERPARTS
This Agreement may be executed in counterparts and shall be effective
when each party has executed a counterpart. Each counterpart shall
constitute an original of this Agreement and all counterparts taken
together shall constitute one and the same agreement. Delivery of a
facsimile executed counterpart of the signature page shall be effective
as delivery of an original executed counterpart of this Agreement.
23. GOVERNING LAW AND JURISDICTION
23.1 This Agreement shall be governed by and construed in accordance with
English law.
23.2 The parties irrevocably agree that the courts of England are to have
non-exclusive jurisdiction to settle any dispute which may arise out of
or in connection with this Agreement and proceedings in respect of any
dispute may be brought in such courts.
24. AGENT FOR SERVICE OF PROCESS
24.1 The Purchaser irrevocably appoints Hutchison Whampoa Agents (UK)
Limited of Hutchison House, 5 Hester Road, Battersea, London SW11 4AN,
the United Kingdom and each of the Seller and OTH irrevocably appoints
Law Debenture of Corporate Services Limited of Fifth Floor, 100 Wood
Street, London, England, EC2V 7EX, in each case as its agent for
service of process in England.
13
<PAGE>
24.2 If any person appointed as agent for service of process ceases to act
as such the relevant party shall immediately appoint another person to
accept service of process on its behalf in England and notify the other
parties of such appointment. If it fails to do so within ten Business
Days any other party shall be entitled by notice to the other parties
to appoint a replacement agent for service of process.
IN WITNESS WHEREOF each party has executed this Agreement, or caused this
Agreement to be executed by its duly authorised representatives.
14
<PAGE>
Schedule
Warranties
The Seller hereby represents and warrants to the Purchaser as of the date hereof
(save in respect of 1.1(ii) and the Warranties given by OTH in 1.2(i), (ii) and
(iii) and 1.3(ii)) and OTH represents and warrants to the Purchaser as at the
date hereof as set out in 1.1(ii) and, insofar as they relate to OTH, 1.2(i),
(ii) and (iii) and 1.3(ii) only, as follows:
1.1 Organisation of the Seller and OTH.
(i) The Seller is a corporation duly organised under the laws of the British
Virgin Islands, and is validly existing and in good standing under the
laws of Malta.
(ii) OTH is a corporation duly organised, validly existing and in good
standing under the laws of the Arab Republic of Egypt.
(iii) The Seller is not in receivership or liquidation nor has it taken any step
to enter liquidation, and no petition has been presented for winding up
the Seller. There are no grounds on which a petition or application could
be based for the winding up or appointment of a receiver of the Seller.
1.2 Authority and Enforceability.
(i) Each of the Seller and OTH has the corporate power and authority to
execute, deliver and perform its obligations under and consummate the
transactions contemplated by each of the Transaction Documents to which
it is a party and the other instruments and agreements to be executed
and delivered by the Seller or OTH as contemplated hereby and thereby,
including the sale and transfer of the Sale Shares pursuant to this
Agreement.
(ii) The execution, delivery and performance of the Transaction Documents to
which either the Seller or OTH is a party, and all other instruments
and agreements to be executed and delivered by the Seller or OTH as
contemplated hereby and thereby, and the consummation of the
transactions contemplated hereby and thereby, have been duly authorised
by the respective directors and, to the extent required, the respective
shareholders of the Seller and OTH, as relevant, and no other corporate
or shareholder action on the part of the Seller or OTH is necessary to
authorise the execution, delivery and performance of the Transaction
Documents to which the Seller or OTH is a party, such other instruments
and agreements contemplated hereby and thereby or the consummation of
the transactions contemplated hereby and thereby.
(iii) The Transaction Documents to which either the Seller or OTH is a party
and all other instruments and agreements to be executed and delivered
by the Seller or OTH as contemplated hereby and thereby, when delivered
in accordance with the terms hereof, assuming the due execution and
delivery of the Transaction Documents and each such other document by
the other parties hereto and thereto, shall have been duly executed and
delivered by each of the Seller and OTH and shall be valid and binding
obligations of each of the Seller and OTH enforceable against them in
accordance with their terms, except to the extent that their
enforceability may be subject to
15
<PAGE>
applicable bankruptcy, insolvency, reorganisation, moratorium or
similar laws affecting the enforcement of creditors' rights generally
or to general equitable principles.
1.3 Consents and Approvals; No Violations.
(i) The Seller has obtained all consents and made all notifications
necessary for its entry into and performance of its obligations under
the Transaction Documents.
(ii) The entry into and performance of the Transaction Documents to which
the Seller or OTH is a party will not constitute a breach by the Seller
or OTH of or default under: (A) any provision of the organisational
documents of the Seller or OTH; (B) any legally binding obligation or
any material agreement or undertaking or the terms of any guarantee by
which the Seller or OTH is bound; or (C) any Law applicable to the
Seller and OTH.
(iii) The Seller has not made the decision to enter into this Agreement or to
sell the Sale Shares as a result of and on the basis of any unpublished
information relating to the Company or the Company Subsidiaries which
in the reasonable opinion of the Seller would constitute "relevant
information" (as defined in Part XIII and XIV of the Securities and
Futures Ordinance of Hong Kong (Cap.571)).
1.4 Sale Shares
The Seller is the beneficial owner of and has good and valid title to
the Sale Shares free and clear of any Encumbrance other than the
security created in favour of the Security Agent which will be released
prior to or at Closing. All of the Sale Shares are fully paid.
16
<PAGE>
SIGNED by Susan Chow )
for and on behalf of )
YUDA LIMITED in the presence of: ) Signature: /s/ Susan Chow
-------------------------------
Witness
Signature: /s/ Lam Sin Yu
Name: Lam Sin Yu, Bernardine
Address: Solicitor, Hong Kong SAR
Occupation: _______________________
SIGNED by _________________________)
for and on behalf of )
ORASCOM TELECOM EURASIA LIMITED )
in the presence of: ) Signature:
-------------------------------
Witness
Signature: _______________________
Name: _______________________
Address: _______________________
Occupation: _______________________
SIGNED by _________________________)
for and on behalf of )
ORASCOM TELECOM HOLDING S.A.E. )
in the presence of: ) Signature:
-------------------------------
Witness
Signature: _______________________
Name: _______________________
Address: _______________________
Occupation: _______________________
17
<PAGE>
SIGNED by _________________________)
for and on behalf of )
YUDA LIMITED in the presence of: ) Signature:
-------------------------------
Witness
Signature: _______________________
Name: _______________________
Address: _______________________
Occupation: _______________________
SIGNED by Naguib Sawiris )
for and on behalf of )
ORASCOM TELECOM EURASIA LIMITED )
in the presence of: ) Signature: /s/ Naguib Sawiris
-------------------------------
Witness
Signature: /s/ Ragy Soliman
Name: Ragy Soliman
Address: Nile City Towers-South Tower
Cornish El Nile - Cairo-Egypt
Occupation: VP Legal Affairs - Orascom Telecom
SIGNED by Naguib Sawiris )
for and on behalf of )
ORASCOM TELECOM HOLDING S.A.E. )
in the presence of: ) Signature: /s/ Naguib Sawiris
-------------------------------
Witness
Signature: /s/ Ragy Soliman
Name: Ragy Soliman
Address: Nile City Towers-South Tower
Cornish El Nile - Cairo-Egypt
Occupation: VP Legal Affairs - Orascom Telecom
17
</TEXT>
</DOCUMENT>
<DOCUMENT>
<TYPE>EX-10.4
<SEQUENCE>5
<FILENAME>ex_10-4.txt
<DESCRIPTION>HWL SHARE PURCHASE AGREEMENT
<TEXT>
Execution Version
================================================================================
4 December 2007
SHARE PURCHASE AGREEMENT
amongst
HUTCHISON TELECOMMUNICATIONS INVESTMENT HOLDINGS LIMITED
and
HUTCHISON WHAMPOA LIMITED
and
ORASCOM TELECOM EURASIA LIMITED
and
ORASCOM TELECOM HOLDING S.A.E.
================================================================================
<PAGE>
TABLE OF CONTENTS
Page
1. INTERPRETATION............................................................1
2. SALE AND PURCHASE.........................................................5
3. CONSIDERATION.............................................................6
3A. CONDITIONS................................................................6
4. PRE-CLOSING OBLIGATIONS...................................................6
5. CLOSING...................................................................8
6. SELLER'S AND OTH'S WARRANTIES.............................................8
7. PURCHASER'S AND HWL'S WARRANTIES..........................................9
8. OTH'S GUARANTEE...........................................................9
9. CONFIDENTIALITY AND ANNOUNCEMENTS........................................10
10. ASSIGNMENT...............................................................11
11. FURTHER ASSURANCE........................................................11
12. ENTIRE AGREEMENT.........................................................11
13. SEVERANCE AND VALIDITY...................................................11
14. VARIATIONS...............................................................11
15. REMEDIES AND WAIVERS.....................................................12
16. EFFECT OF CLOSING........................................................12
17. SURVIVAL AND RIGHTS OF RESCISSION........................................12
18. THIRD PARTY RIGHTS.......................................................12
19. PAYMENTS.................................................................12
20. COSTS AND EXPENSES.......................................................12
21. NOTICES..................................................................13
22. COUNTERPARTS.............................................................15
23. GOVERNING LAW AND JURISDICTION...........................................15
24. AGENT FOR SERVICE OF PROCESS.............................................15
THE SCHEDULE: WARRANTIES......................................................16
i
<PAGE>
THIS AGREEMENT is made on the 4 day of December 2007
BETWEEN:
(1) HUTCHISON TELECOMMUNICATIONS INVESTMENT HOLDINGS LIMITED, a company
incorporated in the British Virgin Islands whose registered office is at
P.O. Box 957, Offshore Incorporations Centre, Road Town, Tortola, the
British Virgin Islands (the "Purchaser");
(2) HUTCHISON WHAMPOA LIMITED, a company incorporated in Hong Kong whose
registered office is at 22(nd) Floor, Hutchison House, 10 Harcourt Road,
Hong Kong ("HWL");
(3) ORASCOM TELECOM EURASIA LIMITED, a company established in accordance with
the laws of the British Virgin Islands whose registered office is at Suite
1, 17, Sir Augustus Bartolo Street, Ta' Xinex, Malta (the "Seller"); and
(4) ORASCOM TELECOM HOLDING S.A.E., a company established in accordance with
the laws of the Arab Republic of Egypt whose principal place of business is
at 2005A Nile City Towers, Cornish El Nile, Ramlet Beaulac, Cairo, Egypt
(the "OTH").
WHEREAS:
(A) The Seller, a wholly owned subsidiary of OTH, has agreed to sell and HWL
has agreed to purchase, the Sale Shares (as defined in Clause 1.1
(Interpretation)) on the terms and conditions of this Agreement.
(B) OTH has agreed to give the guarantee set forth in Clause 8 (OTH's
Guarantee), and to undertake certain other obligations as set out in this
Agreement.
(C) The Purchaser, an indirect wholly owned subsidiary of HWL,
has been nominated by HWL to acquire the Sale Shares.
NOW IT IS HEREBY AGREED as follows:
1. INTERPRETATION
1.1 In this Agreement:
"2005 Transaction means the Shareholders' Agreement, the
Documents" Co-operation Agreement and the Amended and
Restated Registration Rights Agreement.
"Affiliate" means, with respect to any company, its
subsidiaries or holding companies or any
subsidiaries of such holding companies.
"Amended and Restated means the amended and restated registration
Registration Rights rights agreement dated 21 December 2005 and
entered into
1
<PAGE>
Agreement" by and among the Seller, OTH, the Company and
Cheung Kong (Holdings) Limited.
"Business Day" means a day (other than a Saturday or Sunday or
a public holiday) when commercial banks
generally open for business in Hong Kong and
the Arab Republic of Egypt.
"Cayman Islands Register means the register of members of the Company
of Members" kept and maintained in the Cayman Islands from
time to time.
"Cayman Islands Register means the register of transfers of shares of the
of Transfers" Company kept and maintained in the Cayman
Islands from time to time.
"Closing" means the closing of the sale and purchase of
the Sale Shares in accordance with the terms of
this Agreement.
"Closing Date" 4 January 2008 or such earlier date as the
parties hereto may agree in writing.
"Companies Ordinance" means the Companies Ordinance, Chapter 32 of
the Laws of Hong Kong.
"Company" means Hutchison Telecommunications
International Limited, a company incorporated
under the laws of the Cayman Islands, and whose
shares are listed on the Stock Exchange
(Stock Code: 2332), and whose American
depositary shares are listed on the New York
Stock Exchange, Inc. (Ticker: HTX).
"Conditions" has the meaning given to it in Clause 3 A.1.
"Consideration" means the consideration payable in Hong Kong
Dollars in immediately available funds being the
aggregate Purchase Price for the Sale Shares as
set out in Clause 3 (Consideration).
"Co-operation Agreement" means the co-operation agreement dated 21
December 2005 and entered into between the
Company and OTH.
"Encumbrance" means liens, security interests, options, rights
of first refusal, rights of first offer, tag
along rights, claims, mortgages, charges,
licences to third parties, leases to third
parties or security agreements or any other
material restrictions or limitations on the use
of real or personal property or irregularities
in title thereto.
2
<PAGE>
"Financing Parties" means those banks and financial institutions and
institutional and professional investors that
provide finance from time to time to the
Seller and its Affiliates where such finance is
secured by the Sale Shares; and "Financing
Party" shall be construed accordingly.
"Governmental Authority" means any international, supranational,
national, provincial, regional, federal, state,
municipal or local government, any
instrumentality, subdivision, court,
administrative or regulatory agency or
commission or other authority thereof, or any
quasi-governmental, self-regulatory or private
body exercising any regulatory, taxing,
importing or other governmental or
quasi-governmental authority, which shall
include where applicable, the Stock Exchange,
the Cairo and Alexandria Stock Exchange, the
Hong Kong Securities and Futures Commission and
the US Securities and Exchange Commission.
"HK$" or "Hong Kong the lawful currency of Hong Kong.
Dollars"
"holding company" has the meaning given to it in the Companies
Ordinance.
"Hong Kong" means the Hong Kong Special Administrative
Region of the People's Republic of China.
"Law" means any statute, law, ordinance, rule,
regulation or guidelines of any
Governmental Authority.
"Listing Rules" means the Rules Governing the Listing of
Securities on the Stock Exchange.
"Long Stop Time" means 5:00 p.m. (Hong Kong time) on 3 January
2008.
"Loss" or "Losses" means any and all losses, claims, liabilities,
damages, judgments, proceedings, arbitration,
assessments, charges, fines and penalties,
interest, reasonable costs and expenses,
including reasonable expenses of investigation
and enforcement of any claim or indemnity and
all reasonable legal and other professional fees
and expenses.
"Person" means and includes an individual, a partnership,
a joint venture, a corporation, a limited
liability company, a limited liability
partnership, a trust, an incorporated
organisation and a Governmental
3
<PAGE>
Authority.
"Purchase Price" means HK$11.00 per Sale Share.
"Purchaser's and HWL's means the representations and warranties by the
Warranties" Purchaser and HWL referred to in Clause 8.1
(Purchaser `s and HWL `s Warranties).
"Register of Members" means the register of members of the Company
kept and maintained by its Hong Kong branch
share registrar.
"Sale Shares" means 441,026,028 Shares in the issued share
capital of the Company.
"Security Agent" means a security or collateral agent and any
replacement or successor thereof, acting for the
benefit of the Financing Parties.
"Seller's Designated means such bank account as designated in writing
Account" by the Seller (or the Security Agent) to the
Purchaser at least 5 Business Days prior to the
Closing Date for effecting transfer of the
Consideration pursuant to the terms hereof.
"Shareholders' means the shareholders' agreement dated 21
Agreement" December 2005 and entered into among the Seller,
OTH, the Purchaser and HWL in relation to the
Company.
"Shares" means ordinary shares of nominal value HK$0.25
each in the share capital of the Company.
"Stock Exchange" means The Stock Exchange of Hong Kong Limited.
"subsidiary" has the meaning given to it in the Companies
Ordinance.
"Tax" or "Taxation" means any income, gross receipts, withholding,
sales or value added tax.
"Transaction Documents" means this Agreement and other documents
contemplated to be executed and exchanged prior
to or at Closing.
"Warranties" means the representations and warranties in
Clause 7.1 (Seller's and OTH's Warranties) and
set out in the Schedule (Warranties).
1.2 In this Agreement, unless the context otherwise requires:
4
<PAGE>
(i) any reference in this Agreement to "writing" or comparable
expressions includes a reference to facsimile transmission or
comparable means of communication (excluding, for the avoidance of
doubt, email);
(ii) words expressed in the singular number shall include the plural and
vice versa, words expressed in the masculine shall include the
feminine and neuter gender and vice versa;
(iii) references to Clauses, Schedules and Recitals are references to
clauses, schedules and recitals of this Agreement;
(iv) reference to "day" or "days" are to calendar days;
(v) this "Agreement" or any other agreement or document shall be
construed as a reference to this Agreement or, as the case may be,
such other agreement or document as the same may have been, or may
from time to time be, amended, varied, novated or supplemented;
(vi) "include," "includes," and "including" are deemed to be followed by
"without limitation" whether or not they are in fact followed by
such words or words of similar import;
(vii) the table of contents and headings are inserted for convenience only
and do not affect the construction of this Agreement;
(viii) references herein to statutory provisions shall be construed as
references to those provisions as amended or re-enacted or as their
application is modified by other provisions and shall include any
provisions of which they are re- enactments (whether with or without
modification) but in each case as at the date of this Agreement;
(ix) references to a "company" include any company, corporation or other
body corporate wherever and however incorporated or established;
(x) references to "party" or "parties" are to a party to or the parties
to this Agreement; and
(xi) references to any English legal term for any action, remedy, method
of financial proceedings, legal document, legal status, court,
official or any legal concept or thing shall, in respect of any
jurisdiction other than England, be deemed to include what most
nearly approximates in that jurisdiction to the English legal term.
1.3 The Schedule to this Agreement is incorporated into and form an integral
part of this Agreement.
2. SALE AND PURCHASE
2.1 The Seller shall sell and HWL shall, through the Purchaser, purchase the
Sale Shares with all rights now or in the future attaching to them
(including the right to receive all dividends, distributions or any return
of capital declared, made or paid on or after the date of this Agreement)
on the terms and conditions of this Agreement.
5
<PAGE>
2.2 The Seller covenants and confirms that, subject only to satisfaction of the
Conditions, it has the right to transfer legal and beneficial title to the
Sale Shares.
2.3 The Seller covenants and confirms that the Sale Shares shall be sold and
purchased at Closing free from all Encumbrances.
2.4 The Seller waives and shall procure the waiver of any restrictions on
transfer (including all pre-emption rights) which may exist in relation to
the Sale Shares.
2.5 Neither the Seller nor the Purchaser shall be obliged to complete the sale
and purchase of any of the Sale Shares unless the sale and purchase of all
the Sale Shares is completed simultaneously.
3. CONSIDERATION
The consideration for the sale and purchase of the Sale Shares shall be the
payment of the sum of HK$4,851,286,308 (Hong Kong Dollars Four Billion
Eight Hundred and Fifty One Million Two Hundred and Eighty Six Thousand
Three Hundred and Eight Only) at Closing in accordance with Clause 5.2.
3A. CONDITIONS
3A.1 The agreement to sell and purchase the Sale Shares contained in Clause 2 is
conditional upon the delivery to the Seller of:
(i) a deed of release relating to the security over the Sale Shares
previously granted in favour of the Security Agent, and executed by
the Security Agent and/or such other Financing Party or Parties as may
be required for this purpose; and
(ii) any other consents required by the Security Agent or any such
Financing Party or Parties for the transfer of the Sale Shares
pursuant to the terms of the financing secured by the Sale Shares (the
"Conditions").
3A.2 The Seller shall use its best endeavours to ensure that the Conditions are
fulfilled promptly after the date of this Agreement, and in any event on or
before the Long Stop Time. The Seller shall notify the Purchaser in writing
promptly upon becoming aware that the Conditions have been fulfilled.
3A.3 If the Conditions are not fulfilled by the Long Stop Time, the Purchaser
and HWL shall be entitled to terminate this Agreement by written notice to
the others. In such event none of the parties shall have any claim under
this Agreement of any nature whatsoever against the others except in
respect of any rights and liabilities which have accrued before such
termination.
4. PRE-CLOSING OBLIGATIONS
4.1 Simultaneous with or after the execution and delivery of this Agreement by
all parties and prior to the Closing Date, the Seller shall deliver or
procure the delivery of the following to the Purchaser:
(a) a written request in the prescribed form for removal of the Sale
Shares
6
<PAGE>
registered in the name of the Security Agent from the Register of
Members to the Cayman Islands Register of Members;
(b) written resignations in the prescribed form duly signed from:
(i) Aldo Mareuse and Michael John O'Connor as directors of the
Company and Ragy Soliman as an alternate director to Aldo
Mareuse;
(ii) Aldo Mareuse and Michael John O'Connor as members of the Finance
Committee of the Company;
(iii) Naguib Sawiris as one of the Commissioners of the Board of
Commissioners of PT. Hutchison CP Telecommunications; and
(iv) Aldo Mareuse as a member of the Co-ordination Committee of the
BCC (Business Cooperation Contract) Project between Hanoi
Telecom JSC and Hutchison Telecommunications (Vietnam) Sarl
all with effect from the Closing Date;
(c) a letter agreement for termination of each of the 2005 Transaction
Documents with effect from the Closing Date with mutual release and
waiver of all parties' respective rights and claims thereunder against
the others duly signed by the Seller and/or OTH, as the case may be;
(d) a certified extract of the written resolutions of the directors of the
Seller approving and authorising the execution, delivery and
performance of this Agreement (including the sale of the Sale Shares
to the Purchaser as of and with effect from the Closing Date) and each
of the other Transaction Documents to which it is a party;
(e) a certified extract of the written resolutions of the directors of OTH
approving and authorising the execution, delivery and performance of
this Agreement and each of the other Transaction Documents to which it
is a party;
(f) a certified copy of each power of attorney (if any) under which any
document to be delivered to the Purchaser has been executed; and
(g) an original incumbency certificate from the registered agent of the
Seller in the British Virgin Islands (or its equivalent in Malta)
dated prior to the date of this Agreement.
4.2 Simultaneous with or after the execution and delivery of this Agreement by
all parties and prior to the Closing Date, the Purchaser shall deliver to
the Seller:
(a) a counterpart of the letter agreement for termination of each of the
2005 Transaction Documents with effect from the Closing Date with
mutual release and waiver of all parties' respective rights and claims
thereunder against the others duly signed by the Purchaser, HWL and/or
the Company, under common seal (if required), as the case may be;
7
<PAGE>
(b) a certified extract of the resolutions of the directors of the
Purchaser approving and authorising the execution, delivery and
performance of this Agreement and each of the other Transaction
Documents to which it is a party;
(c) a certified extract of the written resolutions of the directors of HWL
approving and authorising the execution, delivery and performance of
this Agreement and each of the other Transaction Documents to which it
is a party; and
(d) deliver to the Seller a certified copy of each power of attorney (if
any) under which any document to be delivered to the Seller has been
executed.
5. CLOSING
5.1 Subject to fulfilment of the Conditions, Closing shall take place at 12
noon, Hong Kong time on the Closing Date at the offices of HWL at 22/F,
Hutchison House, 10 Harcourt Road, Hong Kong or at such other place or time
as is agreed in writing by the Seller and the Purchaser.
5.2 At Closing and against delivery to the Seller of a copy irrevocable
instructions issued for payment of the full amount of the Consideration
into the Seller's Designated Account by wire transfer, the Seller shall:
(i) deliver or procure delivery to the Purchaser or a Person designated
by the Purchaser a stock transfer form in relation to the transfer
of the Sale Shares to the Purchaser duly executed by the Seller or
the Security Agent (or its nominee);
(ii) provide such assistance as the Purchaser may reasonably require for
effecting registration of the transfer of the Sale Shares to the
Purchaser as of the Closing Date; and
(iii) deliver or procure that there be delivered to the Purchaser or a
Person designated by the Purchaser an original share certificate
issued by the Company in the name of the Seller or the Security
Agent (or its nominee) representing the Sale Shares for
cancellation.
5.3 If the provisions of Clause 5.2 are not complied with on the Closing Date,
the Purchaser and HWL shall not be obliged to complete this Agreement and
may treat this Agreement as terminated for breach of condition and require
immediate repayment of the Consideration to the extent received in the
Seller's Designated Account by the Seller (without limiting the Purchaser's
and the HWL's rights and remedies under this Agreement).
6. SELLER'S AND OTH'S WARRANTIES
6.1 The Seller hereby represents and warrants to the Purchaser and HWL that
each of the Warranties is true and accurate in all respects and not
misleading as at the date of this Agreement.
6.2 OTH hereby represents and warrants to the Purchaser and HWL that each of
Warranty 1.1(ii) and, insofar as they relate to OTH, Warranties 1.2(i),
(ii) and (iii) and 1.3(ii)
8
<PAGE>
are true and accurate in all respects and not misleading as at the date of
this Agreement.
6.3 The Seller and OTH acknowledge that the Purchaser and HWL are entering into
this Agreement on the basis of and in reliance upon representations in the
terms of the Warranties.
6.4 Each of the Warranties shall be separate and independent and (unless
expressly provided otherwise) shall not be limited by reference to any
other Warranty or by anything in this Agreement.
7. PURCHASER'S AND HWL'S WARRANTIES
7.1 The Purchaser and HWL hereby jointly and severally represent and warrant to
the Seller and OTH as of the date of this Agreement that each of the
warranties and representations in this Clause 7 is true and accurate in all
respects and not misleading as at the date of this Agreement:
(i) The Purchaser is a corporation duly organised, validly existing and
in good standing under the laws of the British Virgin Islands.
(ii) The Purchaser is not in receivership or liquidation nor has it taken
any step to enter liquidation, and no petition has been presented
for winding up the Purchaser. There are no grounds on which a
petition or application could be based for the winding up or
appointment of a receiver of the Purchaser.
(iii) The Purchaser has the corporate power and authority to execute,
deliver and perform its obligations under and consummate the
transactions contemplated by each of the Transaction Documents to
which it is a party and the other instruments and agreements to be
executed and delivered by the Purchaser as contemplated hereby and
thereby.
(iv) The entry into and performance of the Transaction Documents to which
the Purchaser or HWL is a party will not constitute a breach by the
Purchaser or HWL of or default under: (A) any provision of the
organisational documents of the Purchaser or HWL; (B) any legally
binding obligation or any material agreement or undertaking or the
terms of any guarantee by which the Purchaser or HWL is bound; or
(C) any Law applicable to the Purchaser or HWL.
7.2 Each of the Purchaser's and HWL's Warranties shall be separate and
independent and (unless expressly provided otherwise) shall not be limited
by reference to any other Purchaser's and HWL's Warranty or by anything in
this Agreement.
7.3 The Purchaser and HWL acknowledge that the Seller and OTH are entering into
this Agreement on the basis of and in reliance upon representations in the
terms of the Purchaser's and HWL's Warranties.
8. OTH'S GUARANTEE
8.1 In consideration of the Purchaser and HWL entering into this Agreement, OTH
unconditionally and irrevocably guarantees to the Purchaser and HWL the due
and
9
<PAGE>
punctual performance and payment by the Seller of all its financial and
other obligations under or pursuant to this Agreement (the "Seller's
Guaranteed Obligations").
8.2 If and whenever the Seller defaults for any reason whatsoever in the
performance of any of the Seller's Guaranteed Obligations, OTH shall
immediately upon demand unconditionally perform (or procure the performance
of) and satisfy (or procure the satisfaction of) the Seller's Guaranteed
Obligations as if it was the principal obligor in regard to which such
default has been made.
8.3 This guarantee is to be a continuing guarantee and accordingly is to remain
in force until all Seller's Guaranteed Obligations shall have been
performed or satisfied. This guarantee is in addition to and without
prejudice to and not in substitution for any rights or security which the
Purchaser or HWL may now or hereafter have or hold for the performance and
observance of the Seller's Guaranteed Obligations.
8.4 As a separate and independent obligation, OTH agrees (as primary obligor
and not only as surety) to indemnify, defend and hold harmless the
Purchaser and HWL from time to time (without set-off or counterclaim) from
and against any and all Losses suffered by the Purchaser or HWL to the
extent of any relevant limit on the liability of the Seller in this
Agreement as a result of (i) the failure by the Seller to perform any of
the Seller's Guaranteed Obligations; or (ii) any of the Seller's Guaranteed
Obligations (including, without limitation, any moneys payable) not being
enforceable, effective against or recoverable from the Seller by reason of
any legal limitation, disability or incapacity on or of the Seller or any
other fact or circumstances whatsoever (other than any limitation imposed
by this Agreement). The amount of the Loss or of any payment to be made by
OTH pursuant to this Clause 8.4 or any other provision of this Clause 8
shall be equal to, and shall in no circumstances exceed, the amount which
the Purchaser or HWL would otherwise have been entitled to recover from the
Seller under the terms of this Agreement.
8.5 The liability of OTH under this Clause 8:
(i) shall not be released or diminished by any variation of the Seller's
Guaranteed Obligations or any forbearance, neglect or delay in seeking
performance of the Seller's Guaranteed Obligations or any granting of
time for such performance; and
(ii) shall not be affected or impaired by reason of any other fact or event
which in the absence of this provision would or might constitute or
afford a legal or equitable discharge or release or a defence to a
guarantor.
8.6 OTH waives any right it may have of first requiring the Purchaser or HWL to
proceed against the Seller before claiming from OTH under this Clause 8.
9. CONFIDENTIALITY AND ANNOUNCEMENTS
No announcement, statement, press conference or other communication shall
be (or authorised to be) made, released, issued or held by or on behalf of
any party or its directors, officers, employees, agents or advisers before,
on or after Closing concerning this Agreement, or the subject matter or
provisions of, or transactions or
10
<PAGE>
matters referred to in or contemplated by, or negotiations leading to, this
Agreement; provided that nothing in the foregoing shall prohibit the issue
or release by any party of any announcement or circular if and to the
extent required by law or any regulatory body or the rules of any
recognised stock exchange, including the Stock Exchange, New York Stock
Exchange, Inc. and the Cairo and Alexandria Stock Exchange, on which the
shares of such party, its Affiliates or the Company are listed but the
party with an obligation to issue or release an announcement or a circular
shall consult with the other parties insofar as is reasonably practicable
before complying with such an obligation.
10. ASSIGNMENT
This Agreement may not be transferred, assigned, pledged or hypothecated by
any party hereto without the express written consent of the other parties
hereto.
11. FURTHER ASSURANCE
The Seller and OTH shall from time to time and at their own cost do,
execute and deliver or procure to be done, executed and delivered all such
further acts, documents and things required by, and in a form reasonably
satisfactory to, the Purchaser and HWL to give full effect to this
Agreement and its rights, powers and remedies under this Agreement. The
Purchaser and HWL shall from time to time and at their own cost do, execute
and deliver or procure to be done, executed and delivered all such further
acts, documents and things required by, and in a form reasonably
satisfactory to, the Seller and OTH to give full effect to this Agreement
and its rights, powers and remedies under this Agreement.
12. ENTIRE AGREEMENT
This Agreement, together with each other Transaction Documents, constitute
the whole agreement between the parties and supersedes any previous
arrangements or agreements between them relating to the sale and purchase
of the Sale Shares.
13. SEVERANCE AND VALIDITY
13.1 If any provision of this Agreement is or becomes illegal, invalid or
unenforceable in any respect under the law of any jurisdiction, such
provision shall apply with whatever deletion or modification is necessary
so that the provision is legal, valid and enforceable and gives effect to
the commercial intention of the parties.
13.2 To the extent it is not possible to delete or modify the provision, in
whole or in part, under Clause 13.1, then such provision or part of it
shall, to the extent that it is illegal, invalid or unenforceable, be
deemed not to form part of this Agreement and the legality, validity and
enforceability of the remainder of this Agreement shall, subject to any
deletion or modification made under Clause 13.1, not be affected.
14. VARIATIONS
No variation of this Agreement shall be effective unless in writing and
signed by the parties.
11
<PAGE>
15. REMEDIES AND WAIVERS
15.1 No waiver of any right under this Agreement shall be effective unless in
writing. Unless expressly stated otherwise a waiver shall be effective only
in the circumstances for which it is given.
15.2 No delay or omission by any party in exercising any right or remedy
provided by law or under this Agreement shall constitute a waiver of such
right or remedy.
15.3 The single or partial exercise of a right or remedy under this Agreement
shall not preclude any other nor restrict any further exercise of any such
right or remedy.
15.4 The rights and remedies provided in this Agreement are cumulative and do
not exclude any rights or remedies provided by law.
16. EFFECT OF CLOSING
The provisions of this Agreement which remain to be performed following
Closing shall continue in full force and effect notwithstanding Closing.
17. SURVIVAL AND RIGHTS OF RESCISSION
17.1 Subject to Clause 5.3, no party shall have any right to rescind this
Agreement under any circumstance.
17.2 The representations and warranties of any party contained in this Agreement
shall survive the sale and purchase of the Sale Shares pursuant to this
Agreement.
18. THIRD PARTY RIGHTS
This Agreement is made for the benefit of the parties, their successors and
permitted assigns and is not intended to benefit or be enforceable by any
other person.
19. PAYMENTS
19.1 Any amount payable by the Seller or OTH to the Purchaser or HWL or by the
Purchaser or HWL to the Seller or OTH shall be made in full without set-off
or counter-claim and free from any deduction or withholding whatsoever,
except as required by law.
19.2 If any deduction or withholding is required by law to be made from any
payment or if the recipient is subject to Tax in respect of such payment,
the payer shall increase the amount of the payment to the extent necessary
to ensure that the net amount received and retained by the recipient (after
taking into account all deductions, withholdings or Tax) is equal to the
amount it would have received had the payment not been subject to any such
deductions, withholdings or Tax.
20. COSTS AND EXPENSES
20.1 Except as provided otherwise, each party shall pay its own costs and
expenses in connection with the negotiations, preparation and performance
of this Agreement and the other Transaction Documents.
12
<PAGE>
20.2 Any transfer, registration, stamp, documentary or similar taxes chargeable
in connection with the transfer of the Sale Shares under this Agreement
shall be borne equally by the Seller and the Purchaser. The Seller and the
Purchaser shall co-operate in minimising any such taxes and in the timely
making of all filings, returns, reports and forms as may be required in
connection therewith.
21. NOTICES
21.1 Any notice or other communication to be given under or in connection with
this Agreement ("Notice") shall be in the English language in writing and
signed by or on behalf of the party giving it and marked for the attention
of the relevant party. A Notice may be delivered personally or sent by fax,
pre-paid recorded delivery or pre- paid registered airmail to the address
or fax number provided in Clause 21.3.
21.2 A Notice shall be deemed to have been received:
(i) at the time of delivery if delivered personally;
(ii) at the time of transmission if sent by fax;
(iii) two Business Days after the time and date of posting if sent by
pre-paid recorded delivery; or
(iv) five Business Days after the time and date of posting if sent by
pre-paid registered airmail,
provided that if deemed receipt of any Notice occurs after 6.00 p.m. or is
not on a Business Day, deemed receipt of the Notice shall be 9.00 a.m. on
the next Business Day. References to time in this Clause 21 are to local
time in the country of the addressee.
21.3 The addresses and fax numbers for service of Notice are:
Purchaser:
Name: Hutchison Telecommunications Investment
Holdings Limited
Address: c/o 22(nd) Floor, Hutchison House
l0 Harcourt Road
Hong Kong
For the attention of: The Company Secretary
Fax number: (852) 2128 1778
13
<PAGE>
HWL:
Name: Hutchison Whampoa Limited
Address: 22(nd) Floor, Hutchison House
10 Harcourt Road
Hong Kong
For the attention of: The Company Secretary
Fax number: (852) 2128 1778
Seller:
Name: Orascom Telecom Eurasia Limited
Address: c/o 2005A Nile City Towers - South Tower
Cornish El Nile
Ramlet Beaulac - 11221
Cairo
Egypt
For the attention of: Legal Department
Fax number: 202 2461 5055
OTH
Name: Orascom Telecom Holding S.A.E.
Address: 2005A Nile City Towers - South Tower
Cornish El Nile
Ramlet Beaulac
Cairo
Egypt
For the attention of: Mr. Naguib Sawiris, Chairman & CEO
Fax number: 202 2461 5055
With a copy to: Orascom Telecom Holding S.A.E.
Address: 2005A Nile City Towers - South Tower
Cornish El Nile
Ramlet Beaulac
Cairo
Egypt
For the attention of: Legal Department
Fax number: 202 2461 5165
21.4 A party shall notify the other parties of any change to its address in
accordance with the provisions of this Clause 21 provided that such
notification shall only be effective on the later of the date specified in
the notification and 5 (five) Business Days after deemed receipt.
14
<PAGE>
22. COUNTERPARTS
This Agreement may be executed in counterparts and shall be effective when
each party has executed a counterpart. Each counterpart shall constitute an
original of this Agreement and all counterparts taken together shall
constitute one and the same agreement. Delivery of a facsimile executed
counterpart of the signature page shall be effective as delivery of an
original executed counterpart of this Agreement.
23. GOVERNING LAW AND JURISDICTION
23.1 This Agreement shall be governed by and construed in accordance with
English law.
23.2 The parties irrevocably agree that the courts of England are to have
non-exclusive jurisdiction to settle any dispute which may arise out of or
in connection with this Agreement and proceedings in respect of any dispute
may be brought in such courts.
24. AGENT FOR SERVICE OF PROCESS
24.1 Each of the Purchaser and HWL irrevocably appoints Hutchison Whampoa Agents
(UK) Limited of Hutchison House, 5 Hester Road, Battersea, London SW11 4AN,
the United Kingdom and each of the Seller and OTH irrevocably appoints Law
Debenture of Corporate Services Limited of Fifth Floor, 100 Wood Street,
London, England, EC2V 7EX, in each case as its agent for service of process
in England.
24.2 If any person appointed as agent for service of process ceases to act as
such the relevant party shall immediately appoint another person to accept
service of process on its behalf in England and notify the other parties of
such appointment. If it fails to do so within ten Business Days any other
party shall be entitled by notice to the other parties to appoint a
replacement agent for service of process.
IN WITNESS WHEREOF each party has executed this Agreement, or caused this
Agreement to be executed by its duly authorised representatives.
15
<PAGE>
Schedule
Warranties
The Seller hereby represents and warrants to the Purchaser and HWL as of the
date hereof (save in respect of 1.1(ii) and the Warranties given by OTH in
1.2(i), (ii) and (iii) and 1.3(ii)) and OTH represents and warrants to the
Purchaser and HWL as at the date hereof as set out in 1.1(ii) and, insofar as
they relate to OTH, 1.2(i), (ii) and (iii) and 1.3(ii) only, as follows:
1.1 Organisation of the Seller and OTH.
(i) The Seller is a corporation duly organised under the laws of the British
Virgin Islands, and is validly existing and in good standing under the
laws of Malta.
(ii) OTH is a corporation duly organised, validly existing and in good
standing under the laws of the Arab Republic of Egypt.
(iii) The Seller is not in receivership or liquidation nor has it taken any
step to enter liquidation, and no petition has been presented for
winding up the Seller. There are no grounds on which a petition or
application could be based for the winding up or appointment of a
receiver of the Seller.
1.2 Authority and Enforceability.
(i) Each of the Seller and OTH has the corporate power and authority to
execute, deliver and perform its obligations under and consummate the
transactions contemplated by each of the Transaction Documents to which it
is a party and the other instruments and agreements to be executed and
delivered by the Seller or OTH as contemplated hereby and thereby,
including the sale and transfer of the Sale Shares pursuant to this
Agreement.
(ii) The execution, delivery and performance of the Transaction Documents to
which either the Seller or OTH is a party, and all other instruments and
agreements to be executed and delivered by the Seller or OTH as
contemplated hereby and thereby, and the consummation of the transactions
contemplated hereby and thereby, have been duly authorised by the
respective directors and, to the extent required, the respective
shareholders of the Seller and OTH, as relevant, and no other corporate or
shareholder action on the part of the Seller or OTH is necessary to
authorise the execution, delivery and performance of the Transaction
Documents to which the Seller or OTH is a party, such other instruments and
agreements contemplated hereby and thereby or the consummation of the
transactions contemplated hereby and thereby.
(iii) The Transaction Documents to which either the Seller or OTH is a party and
all other instruments and agreements to be executed and delivered by the
Seller or OTH as contemplated hereby and thereby, when delivered in
accordance with the terms hereof, assuming the due execution and delivery
of the Transaction Documents and each such other document by the other
parties hereto and thereto, shall have been duly executed and delivered by
each of the Seller and OTH and shall be valid and binding obligations of
each of the Seller and OTH enforceable against them in accordance with
their terms, except to the extent that their enforceability may be subject
to
<PAGE>
applicable bankruptcy, insolvency, reorganisation, moratorium or similar
laws affecting the enforcement of creditors' rights generally or to general
equitable principles.
1.3 Consents and Approvals: No Violations.
(i) The Seller has obtained all consents and made all notifications necessary
for its entry into and performance of its obligations under the Transaction
Documents.
(ii) The entry into and performance of the Transaction Documents to which the
Seller or OTH is a party will not constitute a breach by the Seller or OTH
of or default under: (A) any provision of the organisational documents of
the Seller or OTH; (B) any legally binding obligation or any material
agreement or undertaking or the terms of any guarantee by which the Seller
or OTH is bound; or (C) any Law applicable to the Seller and OTH.
(iii) The Seller has not made the decision to enter into this Agreement or to
sell the Sale Shares as a result of and on the basis of any unpublished
information relating to the Company or the Company Subsidiaries which in
the reasonable opinion of the Seller would constitute "relevant
information" (as defined in Part XIII and XIV of the Securities and Futures
Ordinance of Hong Kong (Cap.571)).
1.4 Sale Shares
The Seller is the beneficial owner of and has good and valid title to the
Sale Shares free and clear of any Encumbrance other than the security
created in favour of the Security Agent which will be released prior to or
at Closing. All of the Sale Shares are fully paid.
17
<PAGE>
SIGNED by Susan Chow )
for and on behalf of )
HUTCHISON TELECOMMUNICATIONS )
INVESTMENT HOLDINGS LIMITED )
in the presence of: ) Signature: /s/ Susan Chow
---------------------------
Witness
Signature: /s/ Lam Sin Yu
Name: Lam Sin Yu, Bernardine
Address: Solicitor, Hong Kong SAR
Occupation: _____________________________
SIGNED by Susan Chow )
for and on behalf of )
HUTCHISON WHAMPOA LIMITED )
in the presence of: )
)
)
) Name: /s/ Susan Chow
--------------------------------
Signature:
---------------------------
Witness
Signature: /s/ Lam Sin Yu
Name: Lam Sin Yu, Bernardine
Address: Solicitor, Hong Kong SAR
Occupation: _____________________________
SIGNED by ____________________________)
for and on behalf of )
ORASCOM TELECOM EURASIA LIMITED )
in the presence of: ) Signature:
---------------------------
Witness
Signature: _____________________________
Name: _____________________________
Address: _____________________________
_____________________________
Occupation: _____________________________
18
<PAGE>
SIGNED by ___________________________ )
for and on behalf of )
HUTCHISON TELECOMMUNICATIONS )
INVESTMENT HOLDINGS LIMITED )
in the presence of: ) Signature:
---------------------------
Witness
Signature: _____________________________
Name: _____________________________
Address: _____________________________
_____________________________
Occupation: _____________________________
SIGNED by ______________________________)
for and on behalf of )
HUTCHISON WHAMPOA LIMITED )
in the presence of: )
)
)
) Name:
--------------------------------
Signature:
---------------------------
Witness
Signature: _____________________________
Name: _____________________________
Address: _____________________________
_____________________________
Occupation: _____________________________
SIGNED by Naguib Sawiris )
for and on behalf of )
ORASCOM TELECOM EURASIA LIMITED )
in the presence of: ) Signature:/s/ Naguib Sawiris
---------------------------
Witness
Signature: /s/ Ragy Soliman
Name: Ragy Soliman
Address: Nile City Towers-South Tower
Cornish El Nile - Cairo-Egypt
Occupation: VP Legal Affairs - Orascom Telecom
18
<PAGE>
SIGNED by Naguib Sawiris )
for and on behalf of )
ORASCOM TELECOM HOLDING S.A.E. )
in the presence of: ) Signature:/s/ Naguib Sawiris
---------------------------
Witness
Signature: /s/ Ragy Soliman
Name: Ragy Soliman
Address: Nile City Towers-South Tower
Cornish El Nile - Cairo-Egypt
Occupation: VP Legal Affairs - Orascom Telecom
19
</TEXT>
</DOCUMENT>
<DOCUMENT>
<TYPE>EX-10
<SEQUENCE>6
<FILENAME>ex_10-5.txt
<DESCRIPTION>EXHIBIT 10.5 TERMINATION LTR REV ON JANUARY 9
<TEXT>
TERMINATION LETTER
Date: 3rd January, 2008
WHEREAS:
(A) Hutchison Telecommunications Investment Holdings Limited ("HTIHL"),
Hutchison Whampoa Limited ("HWL"), Orascom Telecom Eurasia Limited
("OTEL") and Orascom Telecom Holding S.A.E. ("OTH") are parties to a
shareholders agreement dated 21 December, 2005 (the "Shareholders
Agreement"), relating, inter alia, to the relationship of HTIHL and OTEL as
shareholders in Hutchison Telecommunications International Limited ("HTIL",
together with each of HTIHL, HWL and OTEL being hereinafter together
referred to as the "Parties" and each a "Party").
(B) The Parties have agreed to terminate the Shareholders Agreement pursuant to
the terms and conditions of this Letter Agreement.
NOW IT IS AGREED as follows:
1 Each Party hereby irrevocably and unconditionally agrees that with effect
from the execution and delivery hereof, the Shareholders Agreement shall be
terminated and shall as from that time cease to be of any legal effect.
2 Each Party shall, with effect from the execution and delivery hereof,
irrevocably and unconditionally release and waive all claims and/or rights
which it has or may have against the other Parties under the Shareholders
Agreement.
3. Each Party undertakes that it will take such action and execute or sign
such further documents or agreements as may be reasonably required in order
to give full effect to the terms and conditions of this Letter Agreement
including, but without limitation, ensuring that this Letter Agreement is
enforceable.
4. Each Party shall bear its own costs and expenses incurred in connection
with the negotiation, preparation, execution and carrying into effect of
this Letter Agreement.
5. This Letter Agreement may be executed in counterparts, but shall not be
effective until each Party has executed and delivered one counterpart. Each
counterpart shall constitute an original of this Letter Agreement but both
the counterparts shall together constitute one and the same document.
6. This Letter Agreement is governed by and shall be construed in accordance
with English law.
7. The parties irrevocably agree that the English courts are to have
non-exclusive jurisdiction to settle any dispute which may arise out of or
in connection with this Agreement and proceedings in respect of any dispute
may be brought in such courts.
1
<PAGE>
IN WITNESS of which this Letter Agreement has been executed and has been
delivered on the date which appears above.
THE COMMON SEAL of )
HUTCHISON TELECOMMUNICATIONS )
INVESTMENT HOLDINGS LIMITED )
was hereunto affixed )
in the presence of: ) /s/ Susan Chow
---------------------------
Name: Susan Chow
Signature
of Witness: /s/ Lam Sin Yu
--------------------------
Name: Lam Sin Yu, Bernardine
--------------------------
Address: Solicitor, Hong Kong SAR
__________________________
Occupation: __________________________
THE COMMON SEAL of )
HUTCHISON WHAMPOA )
LIMITED )
was hereunto affixed )
in the presence of: ) /s/ Susan Chow
---------------------------
Name: Susan Chow
Signature
of Witness: /s/ Lam Sin Yu
--------------------------
Name: Lam Sin Yu, Bernardine
--------------------------
Address: Solicitor, Hong Kong SAR
__________________________ /s/ Edith Shih
Edith Shih
Occupation: __________________________
2
<PAGE>
THE COMMON SEAL of )
ORASCOM TELECOM )
EURASIA LIMITED )
was hereunto affixed ) Common Seal
in the presence of: ) /s/ Naguib Sawiris
---------------------------
Name: Naguib Sawiris
Signature
of Witness: /s/ Ragy Soliman
----------------------------------
Name: Ragy Soliman
Address: 2005 A Nile City Towers
Cornish El Nile, Ramlet Beaulac 11221, Cairo-Egypt
Occupation: Attorney at law
EXECUTED and DELIVERED )
as a DEED by )
ORASCOM TELECOM )
HOLDINGS S.A.E. )
acting by: ) /s/ Naguib Sawiris
---------------------------
Name: Naguib Sawiris
Signature
of Witness: /s/ Ragy Soliman
----------------------------------
Name: Ragy Soliman
Address: 2005A Nile City Towers
Cornish El Nile, Ramlet Beaulac 11221, Cairo-Egypt
Occupation: Attorney at law
</TEXT>
</DOCUMENT>
<DOCUMENT>
<TYPE>EX-10
<SEQUENCE>7
<FILENAME>ex_10-6.txt
<DESCRIPTION>EXH 10.6 TERMINATION LTR
<TEXT>
TERMINATION LETTER
Date:_______________, 2008
WHEREAS:
(A) Hutchison Telecommunications International Limited ("HTIL"), Hutchison
Telecommunications Investment Holdings Limited ("HTIHL"), Cheung Kong
Holdings Limited ("CKHL") and Orascom Telecom Eurasia Limited ("OTEL",
together with each of HTIL, HTIHL and CKHL being hereinafter together
referred to as the "Parties" and each a "Party") are parties to an amended
and restated registration rights agreement dated 21 December, 2005 (the
"Registration Rights Agreement"), relating, inter alia, to the grant of
rights of Registration (as defined in the Registration Rights Agreement.
(B) The Parties have agreed to terminate the Registration Rights pursuant to
the terms and conditions of this Letter Agreement.
NOW IT IS AGREED as follows:
1 Each Party hereby irrevocably and unconditionally agrees that with effect
from the execution and delivery hereof, the Registration Rights Agreement
shall be terminated and shall as from that time cease to be of any legal
effect.
2 Each Party shall, with effect from the execution and delivery hereof,
irrevocably and unconditionally release and waive all claims and/or rights
which it has or may have against the other Parties under the Registration
Rights Agreement.
3. Each Party undertakes that it will take such action and execute or sign
such further documents or agreements as may be reasonably required in order
to give full effect to the terms and conditions of this Letter Agreement
including, but without limitation, ensuring that this Letter Agreement is
enforceable.
4. Each Party shall bear its own costs and expenses incurred in connection
with the negotiation, preparation, execution and carrying into effect of
this Letter Agreement.
5. This Letter Agreement may be executed in counterparts, but shall not be
effective until each Party has executed and delivered one counterpart. Each
counterpart shall constitute an original of this Letter Agreement but both
the counterparts shall together constitute one and the same document.
6. This Letter Agreement shall be governed by and construed and interpreted
in accordance with the law of the State of New York, which shall govern
this Letter Agreement and any controversy or claim arising out of or
relating to this Letter Agreement.
<PAGE>
IN WITNESS of which this Letter Agreement has been executed and has been
delivered on the date which appears above.
THE COMMON SEAL of )
HUTCHISON TELECOMMUNICATIONS )
INTERNATIONAL LIMITED )
was hereunto affixed ) Common Seal
in the presence of: )-----------------------------
Name:
Signature
of Witness: ___________________________
Name: ___________________________
Address: ___________________________
___________________________
Occupation: ___________________________
THE COMMON SEAL of )
HUTCHISON TELECOMMUNICATIONS )
INVESTMENT HOLDINGS LIMITED )
was hereunto affixed ) Common Seal
in the presence of: )-----------------------------
Name:
Signature
of Witness: ___________________________
Name: ___________________________
Address: ___________________________
___________________________
Occupation: ___________________________
<PAGE>
Signed by
For and on behalf of )
CHEUNG KONG HOLDINGS )
LIMITED )
was hereunto affixed ) Common Seal
in the presence of: )-----------------------------
Name:
Signature
of Witness: ___________________________
Name: ___________________________
Address: ___________________________
___________________________
Occupation: ___________________________
THE COMMON SEAL of )
ORASCOM TELECOM )
EURASIA LIMITED )
was hereunto affixed ) /s/ Naguib Sawiris Common Seal
in the presence of: )-----------------------------
Name: Naguib Sawiris
Signature
of Witness: /s/ Ragy Soliman
----------------------------------
Name: Ragy Soliman
Address: 2005A Nile City Towers
Cornish El Nile, Ramlet Beaulac 11221, Cairo-Egypt
Occupation: Attorney at law
</TEXT>
</DOCUMENT>
<DOCUMENT>
<TYPE>EX-10
<SEQUENCE>8
<FILENAME>ex_10-7.txt
<DESCRIPTION>CO-OPERATION AGREEMENT
<TEXT>
21 December 2005
HUTCHISON TELECOMMUNICATIONS
INTERNATIONAL LIMITED
ORASCOM TELECOM HOLDING S.A.E.
----------------------
CO-OPERATION AGREEMENT
----------------------
1
<PAGE>
THIS CO-OPERATION AGREEMENT (this "Agreement") is made on 21 December 2005 (the
"Effective Date")
BETWEEN:
HUTCHISON TELECOMMUNICATIONS INTERNATIONAL LIMITED, a company incorporated in
the Cayman Islands, having its registered office at Century Yard, Cricket
Square, Hutchins Drive, P.O. Box 2681 GT, George Town, Grand Cayman, British
West Indies and its correspondence address at 20/F, Hutchison Telecom Tower, 99
Cheung Fai Road, Tsing Yi, Hong Kong ("HTIL"); and
ORASCOM TELECOM HOLDING S.A.E., a company established in accordance with the
laws of the Arab Republic of Egypt and with its principal place of business at
2005A Nile City Towers, Cornish El Nile, Ramlet Beaulac, Cairo, Egypt ("OTH").
(HTIL and OTH are hereinafter referred jointly as "Parties" and individually as
"Party".)
WHEREAS:
(a) A fundamental basis for OTH's investment in HTIL is achievement of the
commercial, operational and technological synergies and other benefits
contemplated by this Agreement, especially as regards the supply of Network
Equipment and services.
(b) It is the Parties' mutual objective to achieve leadership in their
respective markets by building on their skills as well as their strengths
and knowledge in those markets.
(c) The Parties have agreed to enter into this Agreement to record their
intention to enter into mutually beneficial co-operation in accordance with
the terms and conditions set out in this Agreement.
NOW IT IS HEREBY AGREED as follows:
1. Objectives
1.1 The Parties desire to achieve commercial, operational and technological
synergies and other benefits and will co-operate in the areas set out in
Schedule 1 to this Agreement:
(a) to obtain the most favourable pricing and to maximise such other
benefits as can be extracted from suppliers;
(b) to share know-how and experience; and
(c) to share research and development.
1.2 The Parties will co-operate at all levels and make available appropriate
management team resources from their respective organizations to achieve
the objectives described in Clause 1.1 (the "Objectives").
2
<PAGE>
2. Steering Committee
2.1 The Parties shall establish a Steering Committee consisting of six members
no later than 30 days after the Effective Date. Each Party shall be
entitled to nominate three members to the Steering Committee and such
members shall be board level officers such as the Chief Executive Officer,
Executive Director or Chief Technology Officer of the relevant Party. Each
Party shall allow its committee members to appoint alternates.
2.2 Subject to the obligations set out in Clause 4, the role of the Steering
Committee shall be to:
(a) manage the overall strategy and scope of this Agreement including
regularly review the efficacy of the provisions hereof; and
(b) review any purchase orders issued to or any new purchasing
arrangements as regards Network Equipment entered into with suppliers
by each Party or its Group Members since the last Steering Committee
with a purchase value over US$2,000,000.00 or such other amounts as
determined by the Steering Committee from time to time.
2.3 The Steering Committee shall meet not less than once every two months or,
on an ad hoc basis, whenever requested by either Party. Meetings can be
held, or members of the Steering Committee can participate in a meeting, by
means of telephone conference, video conference or similar communications
equipment.
2.4 The Steering Committee shall use its best endeavours to agree on a joint
procurement process in accordance with Clause 4 not later than 60 days
after its first meeting.
2.5 Notwithstanding the establishment of the Steering Committee, the Parties
contemplate that co-operation between themselves shall be continuous and
shall occur on both a formal and informal basis.
3. Areas of Co-operation
3.1 In order to achieve the Objectives, the Parties agree to co-operate in
certain areas, including but not limited to:
(a) establishing a common data base with respect to their suppliers, which
would contain, among other things, information on technical
specifications and prices for Current Network Procurement Agreements
and Future Network Procurement Agreements except to the extent that
any legal obligation of the OTH Group or HTIL Group would be breached,
with the Parties agreeing to use their best endeavours to achieve this
result as regards Current Network Procurement Agreements;
(b) organizing joint communications to inform their suppliers of the
arrangements arising under this Agreement;
3
<PAGE>
(c) periodic meetings involving procurement specialists representing both
Parties to determine strategy and to implement such strategy on an
ongoing basis; and
(d) investigate options for aligning and exploiting synergies between them
as and when they arise, including the use of joint or co-branded
products targeting markets where they have controlled operations.
3.2 The Parties shall use their reasonable endeavours to negotiate in good
faith such other agreements as may be necessary to implement co-operation
in the areas set out in Schedule 1.
4. Vendors
4.1 The Parties shall on a regular basis identify and agree to a list of
vendors (each a "Vendor" and collectively the "Vendors") that supply
Network Equipment and services to entities within the OTH Group and HTIL
Group respectively and share information on the scale and timing of their
respective future requirements in the area of network procurement. Either
Party may identify additional Vendors by giving written notice to the other
Party to that effect.
4.2 The Parties shall jointly identify and contact Vendors considered as likely
sources of supply of Network Equipment and/or services. The Parties shall
also co-ordinate their communications with investors and other market
participants in order to notify them of the synergies and other benefits
being achieved as a result of the arrangements arising under this
Agreement.
4.3 Subject to commercial and operational conditions within a particular local
market, the Parties shall use their reasonable endeavours to maximize the
number of common Vendors with which each of them does business.
4.4 For all Future Network Procurement Agreements (or other legal instrument in
which the provision of supply is documented) each Party shall ensure that
such agreements permit disclosure of the terms and conditions of such
Network Procurement Agreements (including but not limited to all pricing
information) to the other Party or entities within the OTH Group or the
HTIL Group (as applicable), with the Parties agreeing to use their
reasonable endeavours to achieve this result as regards Current Network
Procurement Agreements (or other legal instrument in which the provision of
supply is documented).
4.5 Each Party shall as regards Future Network Procurement Agreements (or other
legal instrument in which the provision of supply is documented), with the
Parties agreeing to use their reasonable endeavours as regards Current
Network Procurement Agreements (or other legal instrument in which the
provision of supply is documented) to, include provisions (the "Required
Contractual Provisions") to the effect that the Vendors shall offer the
specified Network Equipment and/or services to the other Party or entities
within the OTH Group or HTIL Group (as applicable) according to terms and
conditions (including but not limited to unit pricing and volume discounts)
no less favourable than those set
4
<PAGE>
forth in such agreements adjusted to reflect local costs (such as for civil
engineering works or labour) prevailing in a particular market
OTH may agree from time to time to exclude market specific prices from the
Required Contractual Provisions for any market.
4.6 The Parties shall jointly approach Vendors to negotiate a discount sharing
arrangement based on the cumulative purchases by volume amount expressed in
U.S. dollars by both Parties from such Vendor. Such arrangement shall be
designed to extract discounts (the "Additional Volume Discounts") in
addition to whatever Party has agreed in its individual Network Procurement
Agreements.
The Parties agree that whatever Additional Volume Discounts are obtained as
a result of their joint efforts shall be shared by them on a pro rata basis
according to their respective contributions towards obtaining the
Additional Volume Discounts, with the details of this arrangement to be
determined by the Steering Committee.
4.7 Each Party shall, and shall procure that each of its Group Members shall,
exclude from a particular procurement procedure as regards a Future Network
Procurement Agreement any Vendor that does not agree to inclusion of the
Required Contractual Provisions until such time as such Vendor agrees in
writing to inclusion of the Required Contractual Provisions.
4.8 For the avoidance of doubt, the Parties acknowledge that the Required
Contractual Provisions or the Additional Volume Discounts may be documented
in a legal instrument separate from a specific Network Procurement
Agreement.
4.9 The Parties agree that Clauses 4.5 and 4.7 may not apply in relation to the
exceptional cases set out in Schedule 2 (the "Exceptional Cases"). The
Steering Committee may unanimously determine whether other situations
requiring performance of the Parties' obligations pursuant to Clauses 4.5
and 4.7 constitute and/or should be added to the list of Exceptional Cases
(the "Additional Exceptional Cases"). When determining whether or not an
Additional Exceptional Case exists the Steering Committee shall be guided
by the general principle that the obligations set out in Clauses 4.5 and
4.7 shall not apply to a particular Network Equipment procurement procedure
if performance of such obligations causes or would cause either Party to
suffer a material economic loss. Each Party shall use its best endeavours
to ensure that the OTH Group or the HTIL Group (as applicable) shall engage
in procurement procedures such that they do not constitute Exceptional
Cases or Additional Exceptional Cases.
The Parties further agree, to the extent that prevailing commercial and
economic conditions allow, to limit their purchase volumes from any Vendor
that does not agree to the Required Contractual Provisions in the event
that an Exceptional Case or an Additional Exceptional Case exists.
4.10 The provisions of this Clause 4 shall not apply to any Future Network
Procurement entered into within 15 days of the date on which this Agreement
is executed by the Parties.
5
<PAGE>
5. Costs
Each Party shall pay its own costs, charges and expenses incurred in
connection with negotiating, preparing and implementing this Agreement and
any transactions contemplated by it (including but not limited to any costs
of participating in the meetings of the Steering Committee or meetings of
procurement specialists).
6. Confidentiality
6.1 Each Recipient shall, during the term of this Agreement and for two years
thereafter, keep the confidentiality of any Confidential Information which
may be obtained under this Agreement in strict confidence. To this end,
each Recipient shall not, without the Disclosing Party's prior written
consent: (a) disclose any Confidential Information to any Third Party; or
(b) use any Confidential Information for any purpose other than as
specified in this Agreement.
6.2 The obligation of confidentiality under Clause 6.1 does not apply to:
(a) the disclosure of information to the extent required to be disclosed
by law, any stock exchange regulation or any binding judgment, order
or requirement of any court or other competent authority;
(b) information which is publicly available or becomes publicly available
(otherwise than as a result of a breach of this Clause 6);
(c) information within the possession of a Party prior to its being
furnished to such Party pursuant hereto, provided that the source of
such information was not known to be bound by a confidentiality
agreement with or other contractual, legal or fiduciary obligation of
confidentiality to the other Party with respect to such information;
(d) information that becomes available to a Party on a non-confidential
basis from a source other than the other Party, provided that such
source is not known to be bound by a confidentiality agreement with or
other contractual, legal or fiduciary obligation of confidentiality to
the other Party with respect to such information;
(e) the Parties agree in writing is not Confidential Information; or
(f) the disclosure of information by OTH to any other OTH Group Member or
by HTIL to any other HTIL Group Member.
6.3 Each Recipient shall inform its directors, officers and employees and its
bona fide professional consultants, advisors or auditors, or those of any
OTH Group Member or any HTIL Group Member (as the case may be), to whom it
provides Confidential Information, that such information is confidential
and shall instruct them:
(a) to keep it confidential; and
6
<PAGE>
(b) not to disclose it to any Third Party (other than those persons to
whom it has already been disclosed in accordance with the terms of
this Agreement).
The Recipient shall be responsible for any breach of this Clause 6 by the
person to whom it is disclosed.
6.4 For the purpose of this Agreement,
"Confidential Information" means any and all information disclosed by or on
behalf of the Disclosing Party (as defined below) to the Recipient (as
defined below) hereunder (whether before or after the date of this
Agreement, in writing, verbally or otherwise and whether directly or
indirectly), including but not limited to information regarding the
business and operations and agreements entered into by OTH Group Members or
HTIL Group Members (as applicable) and any analyses, compilations, notes,
studies, memoranda or other documents derived from, containing or
reflecting such information;
"Disclosing Party" means a Party that has disclosed Confidential
Information to the other Party under this Agreement;
"OTH Group Member", "HTIL Group Member" or a "Group Member" of a Party
means any subsidiary companies of OTH or HTIL, as the case may be, and "OTH
Group" and "HTIL Group" shall mean OTH or HTIL (as applicable) and the
group comprising all OTH Group Members and all HTIL Group Members
respectively;
"Recipient" means a Party that is a recipient of Confidential Information
from a Disclosing Party; and
"Third Party" means any third party except for directors, officers and
employees or bona fide professional consultants, advisors or auditors of
the Receiving Party who need to have access to Confidential Information for
the purpose of this Agreement.
6.5 Each Party acknowledges that a breach of this Clause 6 may cause the other
Party irreparable damage for which monetary indemnity may not be an
adequate remedy. Accordingly, in addition to other remedies that may be
available, either Party may seek and obtain injunctive relief against such
a breach or threatened breach in any relevant country.
7. Intellectual Property
It is understood by the Parties that this Agreement will not be intended to
develop any proprietary works containing any type of intellectual property
rights, and that neither Party shall be obliged to disclose or grant a
license of its know-how, patents, registered designs, utility models,
copyrights, database rights and topography rights (including any
applications for any of the foregoing and the right to apply therefore in
any jurisdiction) to the other Party unless and until otherwise agreed by
the Parties.
7
<PAGE>
8. Term and Termination
8.1 This Agreement shall commence on the Effective Date but (except for this
Clause 8, Clause 4.10 and Clauses 11 through 22) its performance shall be
conditional upon occurrence of the closing of the share purchase agreement
of even date herewith and entered into by and between, among others,
Hutchison Whampoa Limited and OTH in accordance with its terms.
8.2 Each Party agrees that this Agreement may be terminated by either Party if
an Event of Default occurs in relation to the other Party. An Event of
Default means, in relation to a Party, the occurrence of any of the
following:
(a) a court of competent jurisdiction makes an order or a resolution is
passed, for the dissolution or administration of that Party otherwise
than in the course of a reorganization or restructuring undertaken for
such purpose previously that is approved in writing by the other Party
(such approval not to be unreasonably withheld or delayed);
(b) any person takes any step (and it is not withdrawn or discharged
within ninety (90) days) to appoint a liquidator, manager, receiver,
administrator, administrative receiver or other similar officer in
respect of any assets held by that Party;
(c) that Party makes or proposes any arrangement or composition with, or
any assignment for the benefit of, its creditors; or
(d) that there is a change of control of the other Party in favour of a
Telecommunications Operator. For this purpose, "control" of the other
Party means the possession, directly or indirectly, of the power to
direct or cause the direction of the management and policies of the
other Party, whether through the ownership of voting securities, by
contract or otherwise.
8.3 HTIL may terminate this Agreement by giving written notice to OTH at any
time after OTH ceases to hold or control, directly or indirectly, at least
12% of the issued share capital of HTIL.
8.4 For the purpose of this Agreement "Telecommunications Operator" means any
person who owns or operates mobile or fixed line telecommunications
networks or infrastructure or provides mobile, fixed line
telecommunications, IDD or Internet services or who is a mobile virtual
network operator or who is a re-seller of such services in any jurisdiction
9. Consequences of Termination
9.1 Any termination of this Agreement shall not affect a Party's accrued rights
and obligations at the date of termination.
9.2 Immediately after the expiration or termination of this Agreement, each
Recipient shall: (i) no longer use any Confidential Information (except for
the information
8
<PAGE>
described in Clauses 3.1(a) and 4); and (ii) at the option and instruction
of the Disclosing Party, return promptly to the Disclosing Party and/or
destroy all Confidential Information (except for the information described
in Clauses 3.1(a) and 4) in its possession which is in a tangible or
electronic form and all copies of such material.
9.3 The provisions of Clauses 6, 9, 18 and 22 shall survive any termination of
this Agreement and shall continue in full force and effect.
10. Further Assurances and Good Faith
So far as it is legally able, each Party undertakes with the other to
exercise all voting rights and powers (direct and indirect) available to it
to ensure that the provisions of this Agreement are completely and
punctually fulfilled, observed and performed and generally that full effect
is given to the principles set out in this Agreement and to act reasonably
and in good faith towards each other in the exercise of its rights and the
discharge of its obligations hereunder.
11. Non-Assignment
Neither Party may, nor may purport to, assign any of its rights or
obligations under this Agreement in whole or in part, nor grant, declare,
create or dispose of any right or interest in it (otherwise than in
accordance with the terms of this Agreement) without the prior written
consent of the other Party, which consent shall not be unreasonably
withheld if the proposed assignment is to a directly or indirectly wholly
owned Affiliate of such Party.
For the purpose of this Agreement "Affiliate" means, with respect to any
Person which is a company, its subsidiaries and holding companies and any
subsidiaries of such holding companies, and with respect to any Person
which is not a company, any other Person directly or indirectly
controlling, controlled by, or under common control with, such Person;
provided that, for the purposes of this definition, "control" (including,
with correlative meanings, the terms "controlled by" and "under common
control with"), as used with respect to any Person, means the possession,
directly or indirectly, of the power to direct or cause the direction of
the management and policies of such Person, whether through the ownership
of voting securities, by contract or otherwise.
12. Waiver of Rights
No waiver by either Party of a failure by the other Party to perform any
provision of this Agreement operates or is to be construed as a waiver in
respect of any other failure whether of a like or different character.
13. Amendments
A variation of this Agreement is valid only if it is in writing and signed
by or on behalf of each Party.
9
<PAGE>
Every three (3) years after the Effective the Parties shall review and, if
necessary, agree in good faith any appropriate amendments to the terms of
this Agreement to ensure that the Objectives are achieved by implementation
of the terms hereof.
14. Invalidity
If any provision of this Agreement is or is held to be invalid or
unenforceable, then so far as it is invalid or unenforceable it has no
effect and is deemed not to be included in this Agreement. This shall not
invalidate any of the remaining provisions of this Agreement. The Parties
shall then use all reasonable endeavours to replace the invalid or
unenforceable provision by a valid provision the effect of which is as
close as possible to the intended effect of the invalid or unenforceable
provision.
15. No Partnership or Agency
15.1 Nothing in this Agreement (or any of the arrangements contemplated by it)
shall be deemed to constitute a partnership between the Parties nor, save
as may be expressly set out in it, constitute either Party the agent of the
other Party for any purpose.
15.2 Unless the Parties agree otherwise in writing neither of them shall:
(a) enter into contracts with third Parties as agent for the other Party;
or
(b) describe itself a such an agent or in any way hold itself out as being
such as agent.
15.3 For the avoidance of doubt but subject to Clause 7, nothing contained in
this Agreement shall restrict or prevent any Party from developing and
introducing technology and services, or from exchanging intellectual
property and know-how, with any third Party.
16. Announcements
16.1 No formal public announcement or press release in connection with the
signature or subject matter of this Agreement shall (subject to Clause
16.2) be made or issued by or on behalf or either Party without the prior
written approval of the other Party (such approval not to be unreasonably
withheld or delayed).
16.2 If a Party has an obligation to make or issue any announcement required by
law or by any stock exchange or by any governmental authority, the relevant
Party shall give the other Party every reasonable opportunity to comment on
any announcement or release before it is made or issued (provided that this
shall not have the effect of preventing the Party making the announcement
or release from complying with its legal and/or stock exchange
obligations).
10
<PAGE>
17. Entire Agreement
17.1 This Agreement sets out the entire agreement and understanding between the
Parties with respect to the subject matter hereof.
17.2 Neither Party has relied on or has been induced to enter into this
Agreement in reliance on any representation, warranty or understanding
which is not set out in this Agreement.
18. Notices
18.1 Any notice or other formal communication to be given under this Agreement
shall be writing and signed by or on behalf of the Party giving it. It
shall be:
(a) sent by facsimile to the number set out in Clause 18.2; or
(b) delivered by hand or sent by prepaid recorded delivery or registered
post to the relevant address in Clause 18.2.
In each case it shall be marked for the attention of the relevant Party set
out in Clause 18.2 (or as otherwise notified from time to time under this
Agreement). Any notice given by hand delivery, facsimile or post shall be
deemed to have been duly given:
(a) if hand delivered, when delivered;
(b) if sent by facsimile, twelve (12) hours after the time of dispatch;
(c) if sent by recorded delivery or registered post, at 10 am on the
second Business Day from the date of posting.
Unless there is evidence that it was received earlier than this and
provided that, where (in the case of delivery by hand or by facsimile) the
delivery or transmission occurs after 6 pm on a Business Day or on a day
which is not a Business Day, service shall be deemed to occur at 9:00 am on
the next following Business Day. References to time in this Clause are to
local time in the country of the addressee.
For the purposes of this Clause, a Business Day means a day which is not a
Saturday, Sunday or public holiday on which banks are open for general
banking business in Hong Kong and Cairo, Egypt.
18.2 The addresses and facsimile numbers of the Parties for the purpose of
Clause 18.3 are:
(a) HTIL
Address: 22nd Floor, Hutchison House, 10 Harcourt Road,
Hong Kong
Facsimile No: (852)2128 1778
11
<PAGE>
For the attention of: The Company Secretary
With copy to:
Address: 20/F Hutchison Telecom Tower,
99 Cheung Fai Road,
Tsing Yi, Hong Kong
For the attention of: Executive Director
(b) OTH
Address: 2005A Nile City Towers,
Cornish El Nile,
Ramlet Beaulac,
Cairo, Egypt
Facsimile No: (202)461 5065
For the attention of: Chief Technology Officer
With copy to:
Address: 2005A Nile City Towers,
Cornish El Nile,
Ramlet Beaulac,
Cairo, Egypt
Facsimile No: (202)461 5165
For the attention of: Legal Department
18.3 All notices or formal communications under or in connection with this
Agreement shall be in the English language or, if in any other language,
accompanied by a translation into English. In the event of any conflict
between the English text and the text in any other language, the English
text shall prevail.
19. Third Party Rights
A person who is not a Party to this Agreement shall have no rights under
the contracts (Rights of Third Parties) 1999 Act.
20. Counterparts
This Agreement may be executed in any number of counterparts and by the
Parties to it on separate counterparts, each of which shall be an original
but all of which together shall constitute one and the same instrument.
12
<PAGE>
21. Representations and Warranties
Each Party hereby represents and warrants to the other Party as of the date
of this Agreement that each of the warranties and representations in this
Clause 21 is true and accurate in all respects and not misleading as at the
date of this Agreement:
(a) Such Party is a corporation duly organised, validly existing and in
good standing under the laws of the jurisdiction of its incorporation.
(b) Such Party is not in receivership or liquidation nor has it taken any
step to enter liquidation, and no petition has been presented for
winding up such Party. There are no grounds on which a petition or
application could be based for the winding up or appointment of a
receiver of such Party.
(c) Such Party has the corporate power and authority to execute, deliver
and perform its obligations under and consummate the transactions
contemplated under this Agreement.
(d) The execution, delivery and performance of this Agreement and the
consummation of the transactions contemplated hereby have been duly
authorised by the directors and, to the extent required, shareholders
of such Party and no other corporate or shareholder action on the part
of such Party or its shareholders is necessary to authorise the
execution, delivery and performance of this Agreement or the
consummation of the transactions contemplated hereby.
(e) This Agreement, when delivered in accordance with the terms hereof,
assuming the due execution and delivery of this Agreement, shall have
been duly executed and delivered by such Party and shall be valid and
binding obligations of such Party enforceable against such Party in
accordance with its terms, except to the extent that its
enforceability may be subject to applicable bankruptcy, insolvency,
reorganisation, moratorium or similar laws affecting the enforcement
of creditors' rights generally or to general equitable principles.
(f) The entry into and performance of this Agreement will not constitute a
breach such Party or default under: (i) any provision of the
organisational documents of such Party; (ii) any legally binding
obligation or any material agreement or undertaking or the terms of
any guarantee by which such Party is bound; or (iii) any law
applicable to such Party.
(g) No action or proceeding has been instituted or, so far as such Party
is aware, threatened before a court or other governmental authority to
restrain or prohibit or materially delay any of the transactions
contemplated by this Agreement.
Each Party's representations and warranties shall be separate and
independent and (unless expressly provided otherwise) shall not be limited
by reference to any other representation and warranty or by anything in
this Agreement.
13
<PAGE>
Each Party acknowledges that it is entering into this Agreement on the
basis of and in reliance upon the other Party's representations and
warranties.
22. Governing Law
This Agreement shall be governed by and construed in accordance with the
laws of England and Wales.
Any dispute arising between the Parties in connection with this Agreement,
including any question regarding its existence, validity or termination,
shall be referred to the Steering Committee for resolution. If the Steering
Committee is unable informally to resolve such dispute to the mutual
satisfaction of the Parties within 30 days such dispute shall be referred
to and finally resolved by arbitration under the Rules of Arbitration of
the International Chamber of Commerce (the "Rules"), which Rules are deemed
to be incorporated by reference into this clause. The number of arbitrators
shall be three. Each Party shall nominate one arbitrator in accordance with
the Rules. The Parties shall attempt to reach agreement on the third
arbitrator, who shall act as chairman of the Arbitral Tribunal. If such
agreement is not reached within 15 days of the Respondent's nomination of
the second arbitrator, the third arbitrator shall be appointed by the
International Chamber of Commerce in accordance with the Rules. The place
of arbitration shall be London, England. The language of the arbitral
proceedings shall be English.
IN WITNESS whereof this Agreement has been entered into the day and year first
written above.
SIGNED by )
for and on behalf of )
Hutchison Telecommunications International ) /s/ [Illegible]
Limited )
SIGNED by )
for and on behalf of )
Orascom Telecom Holding S.A.E. )
14
<PAGE>
Each Party acknowledges that it is entering into this Agreement on the
basis of and in reliance upon the other Party's representations and
warranties.
22. Governing Law
This Agreement shall be governed by and construed in accordance with the
laws of England and Wales.
Any dispute arising between the Parties in connection with this Agreement,
including any question regarding its existence, validity or termination,
shall be referred to the Steering Committee for resolution. If the Steering
Committee is unable informally to resolve such dispute to the mutual
satisfaction of the Parties within 30 days such dispute shall be referred
to and finally resolved by arbitration under the Rules of Arbitration of
the International Chamber of Commerce (the "Rules"), which Rules are deemed
to be incorporated by reference into this clause. The number of arbitrators
shall be three. Each Party shall nominate one arbitrator in accordance with
the Rules. The Parties shall attempt to reach agreement on the third
arbitrator, who shall act as chairman of the Arbitral Tribunal. If such
agreement is not reached within 15 days of the Respondent's nomination of
the second arbitrator, the third arbitrator shall be appointed by the
International Chamber of Commerce in accordance with the Rules. The place
of arbitration shall be London, England. The language of the arbitral
proceedings shall be English.
IN WITNESS whereof this Agreement has been entered into the day and year first
written above.
SIGNED by )
for and on behalf of )
Hutchison Telecommunications International )
Limited )
SIGNED by Naguib Sawiris ) /s/ Naguib Sawiris
for and on behalf of )
Orascom Telecom Holding S.A.E. )
14
<Page>
SCHEDULE 1
I. Procurement:
o Data services architecture and solutions
o Network infrastructure
o IT systems and platforms
o Handset, SIM and accessories
II. Technologies and Networks:
o Technology research and applications
o Emerging radio technologies (WiFi, WiMAX, UWB, DVB-H
etc)
o IP evolution (IP Core, VoIP, IP Interworking, Managed
QoS, IPv6 etc)
o Services standard (DRM, MBMS, OMA, QoS)
o Network Performance and Capacity
o Network performance benchmarking
o Sharing of capacity and performance enhancements
techniques
o Sharing of performance monitoring systems and
practices
o Indoor coverage techniques
o Vendor Management
o Sharing of vendors roadmaps
o Establishing common user group to pursue the best
support from vendors
III. IT, Services and Contents:
o IT system architecture
o Billing and Customer Care
o Enterprise Support System (ESS)
o Business Support System (BSS)
o Fraud management and security
o Provisioning, mediation, billing and collections
o Revenue Assurance
o Local and international messaging (SMS, EMS, MMS)
o Multimedia service architecture
o Content and service delivery platforms
o Application enabling platforms and solutions
o Roaming and settlement
o Sharing of global contents (subject to agreements)
o Cross licensing of technologies, solutions and contents
15
<PAGE>
IV. International Business
o Optimized voice and data routing through the Parties' (e.g.,
HGC's) existing networks and points of presence
o Common messaging peering and settlement services
o Preferential roaming treatment among the Parties' respective
operations
o Preferential international call rating
16
<PAGE>
SCHEDULE 2
Exceptional Cases
Market Conditions
1. Cases where fewer than two suitably qualified Vendors are present and
bidding for the project in the market.
2. Markets where a Vendor identity's is politically sensitive or its
activities restricted by applicable law.
3. When the insertion of the Required Contractual Provisions results in a
breach of applicable law, including, for the avoidance of doubt,
breach of a fiduciary duty owed by a member of the board of directors
of a particular company within the OTH Group or the HTIL Group (as
applicable).
4. Markets where potential growth is limited in comparison with the
installed network, thereby making it operationally unreasonable to
introduce a new vendor.
Existing Benefits Prejudiced
5. Purchases in relation to future network expansion phases that as of
the date hereof are both planned and subject to a legally binding
commitment, where the aggregate volume of the purchases has
demonstrably been a fundamental consideration of the vendor during the
negotiation of such agreement.
6. Purchases for equipment with prices fixed under existing agreements,
including frame agreements, unless more a favorable price is
introduced as a result of the Required Contractual Provisions or the
Additional Volume Discounts.
Natural Expansion
7. Purchases for capacity and functionality upgrades that apply existing
installed nodes (e.g., adding racks/modules/cards to an existing MSC
or BSC etc.)
8. Purchases or agreements for MSC/BSC/BTS and other central switching
equipment (Network Equipment prices only; for the avoidance of doubt,
this means that the cost of civil works shall be excluded) with a
scale smaller than US$2,000,000.00.
For the purpose of this Agreement,
"BSC" (Base Station Controller) means equipment that monitors and controls one
or more base stations in order to exchange messages, handover mobile units from
cell to cell, and perform other system administrative tasks;
17
<PAGE>
"BTS" (Base Transceiver Station) means fixed transmitter/receiver equipment in
each cell of a mobile telecommunications network that communicates by radio with
all mobile telephones in that cell;
"HLR" (Home Location Register) means the database in charge of managing mobile
phone subscribers that holds all pertinent subscriber information, such as the
telephone number, handset serial number, long-distance carrier, and customer
features;
"IN" (Intelligent Network) means network infrastructure that is for the purpose
of real time call control and credit rating;
"MSC" (Mobile Switching Centre) means a large, computer-based device used to
connect calls within a mobile network and as the interface of the cellular
network to other networks;
"Network Equipment" means any equipment used in the mobile telephone network,
including but not limited to:
(a) the core network: MSC/VLR/HLR;
(b) the access network: BSC/TRAU and BTS;
(c) transmission: PDH and SDH;
(d) Intelligent Network;
(e) UTRAN; and
(f) Packet switching equipment.
"Network Procurement Agreement" means any agreement for the procurement of
Network Equipment ("Current Network Procurement Agreement" means a Network
Procurement Agreement pursuant to which a supplier is, as at the Effective Date,
continuing to supply Network Equipment and "Future Network Procurement
Agreement" means a Network Procurement Agreement entered into by a Party at a
date after the Effective Date.)
"PDH" (Plesiochronous Digital Hierarchy) means a digital transmission method
based on dividing information up into identical time intervals;
"SDH" (Synchronous Digital Hierarchy) means a method of telephony transmission
using digital techniques where data is packed in containers which are
synchronised in time;
"TRAU" (Transcoder Rate and Adapter Unit) means a technology whereby an encoded
speak signal from a mobile station is transcoded;
"UTRAN" means a UMTS (Universal Mobile Telecommunications System) radio access
network.
"VLR" (Visitor Location Register) means a temporary database that contains
pertinent subscriber information for wireless users that are roaming.
18
</TEXT>
</DOCUMENT>
<DOCUMENT>
<TYPE>EX-10.8
<SEQUENCE>9
<FILENAME>ex_10-8.txt
<DESCRIPTION>TERMINATION LETTER
<TEXT>
TERMINATION LETTER
Date: 3rd January, 2008
WHEREAS:
(A) Hutchison Telecommunications International Limited ("HTIL") and Orascom
Telecom Holding S.A.E. ("OTH", together with HTIL being hereinafter
together referred to as the "Parties" and each a "Party") are parties to a
cooperation agreement dated 21 December, 2005 (the "Cooperation
Agreement"), relating, inter alia, to the achievement of commercial,
operational and technological synergies and other benefits contemplated by
the Cooperation Agreement, especially as regards the supply of Network
Equipment (as defined therein) and services.
(B) The Parties have agreed to terminate the Cooperation Agreement pursuant to
the terms and conditions of this Letter Agreement.
NOW IT IS AGREED as follows:
1. Each Party hereby irrevocably and unconditionally agrees that with effect
from the execution and delivery hereof, the Cooperation Agreement shall be
terminated and shall as from that time cease to be of any legal effect.
2. (a) Save and except as provided in sub-clause (b) below, each Party shall,
with effect from the execution and delivery hereof, irrevocably and
unconditionally release and waive all claims and/or rights which it has or
may have against the other Parties under the Co-operation Agreement.
(b) For the avoidance of doubt, the release and waiver under sub-clause (a)
above is without prejudice to the Parties' obligations under Clauses 6, 9,
18 and 22 of the Co-operation Agreement which are expressed to survive this
termination.
3. Each Party undertakes that it will take such action and execute or sign
such further documents or agreements as may be reasonably required in order
to give full effect to the terms and conditions of this Letter Agreement
including, but without limitation, ensuring that this Letter Agreement is
enforceable.
4. Each Party shall bear its own costs and expenses incurred in connection
with the negotiation, preparation, execution and carrying into effect of
this Letter Agreement.
5. This Letter Agreement may be executed in counterparts, but shall not be
effective until each Party has executed and delivered one counterpart. Each
counterpart shall constitute an original of this Letter Agreement but both
the counterparts shall together constitute one and the same document.
<PAGE>
6. This Letter Agreement is governed by and shall be construed in accordance
with English law.
7. In the event of any dispute arising between the Parties in connection with
this Letter Agreement, the Parties shall seek to resolve such dispute
informally within 30 days of notice of any such dispute being served by one
Party on the other Party, failing which such dispute shall be referred to
and finally resolved by arbitration under the Rules of Arbitration of the
International Chamber of Commerce (the "Rules"), which Rules are deemed to
be incorporated by reference into this clause. The number of arbitrators
shall be three. Each Party shall nominate one arbitrator in accordance with
the Rules. The Parties shall attempt to reach agreement on the third
arbitrator, who shall act as chairman of the Arbitral Tribunal. If such
agreement is not reached within 15 days of the Respondent's nomination of
the second arbitrator, the third arbitrator shall be appointed by the
International Chamber of Commerce in accordance with the Rules. The place
of arbitration shall be London, England. The language of the arbitral
proceedings shall be English.
IN WITNESS of which this Letter Agreement has been executed and has been
delivered on the date which appears above.
THE COMMON SEAL of )
HUTCHISON TELECOMMUNICATIONS )
INTERNATIONAL LIMITED )
was hereunto affixed )
in the presence of: ) /s/ Susan Chow
--------------------------
Name: Susan Chow
Signature
of Witness: /s/ Lam Sin Yu
--------------------------
Name: Lam Sin Yu, Bernardine
--------------------------
Address: Solicitor, Hong Kong SAR
__________________________ /s/ Edith Shih
Edith Shih
Occupation: __________________________
EXECUTED and DELIVERED )
as a DEED by )
ORASCOM TELECOM )
HOLDING S.A.E. )
acting by: )
--------------------------
Name
Signature
of Witness: ___________________________
Name: ___________________________
Address: ___________________________
___________________________
Occupation: ___________________________
2
<PAGE>
7. In the event of any dispute arising between the Parties in connection with
this Letter Agreement, the Parties shall seek to resolve such dispute
informally within 30 days of notice of any such dispute being served by one
Party on the other Party, failing which such dispute shall be referred to
and finally resolved by arbitration under the Rules of Arbitration of the
International Chamber of Commerce (the "Rules"), which Rules are deemed to
be incorporated by reference into this clause. The number of arbitrators
shall be three. Each Party shall nominate one arbitrator in accordance with
the Rules. The Parties shall attempt to reach agreement on the third
arbitrator, who shall act as chairman of the Arbitral Tribunal. If such
agreement is not reached within 15 days of the Respondent's nomination of
the second arbitrator, the third arbitrator shall be appointed by the
International Chamber of Commerce in accordance with the Rules. The place
of arbitration shall be London, England. The language of the arbitral
proceedings shall be English.
IN WITNESS of which this Letter Agreement has been executed and has been
delivered on the date which appears above.
THE COMMON SEAL of )
HUTCHISON TELECOMMUNICATIONS )
INTERNATIONAL LIMITED )
was hereunto affixed ) Common Seal
in the presence of: )
---------------------------
Name:
Signature
of Witness: ___________________________
Name: ___________________________
Address: ___________________________
___________________________
Occupation: ___________________________
EXECUTED and DELIVERED )
as a DEED by )
ORASCOM TELECOM )
HOLDINGS S.A.E. )
acting by: ) /s/ Naguib Sawiris
---------------------------
Name: Naguib Sawiris
Signature
of Witness: /s/ Ragy Soliman
----------------------------------
Name: Ragy Soliman
Address: 2005A Nile City Towers
Cornish El Nile, Ramlet Beaulac 11221, Cairo-Egypt
Occupation: Attorney at law
</TEXT>
</DOCUMENT>
<DOCUMENT>
<TYPE>EX-10.9
<SEQUENCE>10
<FILENAME>ex_10-9.txt
<DESCRIPTION>YUDA SUPPLEMENTAL LETTER
<TEXT>
SUPPLEMENTAL LETTER
Date: 27 December, 2007
To: Yuda Limited
Dear Sirs,
Re: Hutchison Telecommunications International Limited ("HTIL")
We refer to the agreement dated 4 December 2007 (the "Sale and Purchase
Agreement") and entered into amongst between Yuda Limited, Orascom Telecom
Holding S.A.E. and Orascom Telecom Eurasia Limited relating to the sale and
purchase of 239,108,144 ordinary shares of nominal value HK$0.25 each in the
issued share capital of HTIL. Terms used in this Letter shall have the same
meanings as defined or ascribed thereto in the Sale and Purchase Agreement.
Under Clause 1.1 of the Sale and Purchase Agreement, "Closing Date" is defined
to mean "4 January 2008 or such earlier date as the parties hereto may agree in
writing". We hereby write to request that you agree to Closing occurring on an
earlier date, i.e. 3 January 2008. All other terms and conditions of the Sale
and Purchase Agreement remain in full force and effect and unaffected by this
letter agreement.
Please would you indicate your agreement to the above by signing and returning
to us the duplicate of this Letter, which will form and constitute, and is to be
construed as, part of the Sale and Purchase Agreement.
Yours faithfully
For and on behalf of For and on behalf of
Orascom Telecom Eurasia Limited Orascom Telecom Holding S.A.E.
/s/ Naguib Sawiris /s/ Naguib Sawiris
- ------------------------ ------------------------
Name: Naguib Sawiris Name: Naguib Sawiris
Title: Director Title: Chairman and CEO
Confirmed and agreed:
For and on behalf of
Yuda Limited
/s/ Susan Chow
- ------------------------
Name: Susan Chow
Title: Authorised Signatory
</TEXT>
</DOCUMENT>
<DOCUMENT>
<TYPE>EX-10.10
<SEQUENCE>11
<FILENAME>ex_10-10.txt
<DESCRIPTION>HWL SUPPLEMENTAL LETTER
<TEXT>
SUPPLEMENTAL LETTER
Date: 27 December, 2007
To: (1) Hutchison Telecommunications Investment Holdings Limited ("HTIHL")
(2) Hutchison Whampoa Limited ("HWL")
Dear Sirs,
Re: Hutchison Telecommunications International Limited ("HTIL")
We refer to the agreement dated 4 December 2007 (the "Sale and Purchase
Agreement") and entered into amongst HTIHL, HWL, Orascom Telecom Holding S.A.E.
and Orascom Telecom Eurasia Limited relating to the sale and purchase of
441,026,028 ordinary shares of nominal value HK$0.25 each in the issued share
capital of HTIL. Terms used in this Letter shall have the same meanings as
defined or ascribed thereto in the Sale and Purchase Agreement.
Under Clause 1.1 of the Sale and Purchase Agreement, "Closing Date" is defined
to mean "4 January 2008 or such earlier date as the parties hereto may agree in
writing". We hereby write to request that you agree to Closing occurring on an
earlier date, i.e. 3 January 2008. All other terms and conditions of the Sale
and Purchase Agreement remain in full force and effect and unaffected by this
letter agreement.
Please would you indicate your agreement to the above by signing and returning
to us the duplicate of this Letter, which will form and constitute, and is to be
construed as, part of the Sale and Purchase Agreement.
Yours faithfully
For and on behalf of For and on behalf of
Orascom Telecom Eurasia Limited Orascom Telecom Holding S.A.E.
/s/ Naguib Sawiris /s/ Naguib Sawiris
- ------------------------ ------------------------
Name: Naguib Sawiris Name: Naguib Sawiris
Title: Director Title: Chairman and CEO
Confirmed and agreed:
For and on behalf of For and on behalf of
Hutchison Telecommunications Hutchison Whampoa Limited
Investment Holdings Limited
/s/ Susan Chow /s/ Susan Chow
- ------------------------ -------------------------------------
Name: Susan Chow Name: Susan Chow
Title: Director Title: Deputy Group Managing Director
</TEXT>
</DOCUMENT>
News Feed