Corporate Placing Agreement - China Life Insurance Co. Ltd., Chow Tai Fook Nominee Ltd., China International Capital Corp. Ltd., Citigroup Global Markets Asia Ltd., Credit Suisse First Boston (Hong Kong) Ltd., and Deutsche Bank AG
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China Life Insurance Company Limited
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CORPORATE PLACING AGREEMENT
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Dated 5th December, 2003
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1. Definitions and Interpretation. ..................................... 2
2. Investment. ......................................................... 4
3. Conditions. ......................................................... 5
4. Closing. ............................................................ 5
5. Restrictions on Disposals by the Investor. .......................... 5
6. Acknowledgments. .................................................... 6
7. Representations and Warranties of the Investor. ..................... 8
8. Representations and Warranties of the Company ....................... 9
9. Investor's Covenants. ............................................... 10
10. Confidentiality and No Announcement ................................. 12
11. Expenses ............................................................ 13
12. Miscellaneous. ...................................................... 13
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THIS CORPORATE PLACING AGREEMENT (this "Agreement") is made as of the 5th
day of December, 2003, by and among:
1. China Life Insurance Company Limited, a joint stock limited company
organized and existing under the laws of the People's Republic of China
whose registered office is at 16 Chaowai Avenue, Chaoyang District, Beijing
100020, the People's Republic of China and whose place of business in Hong
Kong is at 18th Floor, C.L.I. Building, 313 Hennessy Road, Wanchai, Hong
Kong (the "Company");
2. Chow Tai Fook Nominee Limited, a company organized and existing under the
laws of Hong Kong whose principal office is at 31st Floor, New World Tower,
16-18 Queen's Road Central, Hong Kong (the "Investor");
3. China International Capital Corporation Limited whose principal office is
at 28th Floor, China World Tower 2, No. 1, Jian Guo Men Wai Avenue, Beijing
100004, the People's Republic of China ("CICC");
4. Citigroup Global Markets Asia Limited whose principal office is at 20th
Floor, Three Exchange Square, Central, Hong Kong ("Citigroup");
5. Credit Suisse First Boston (Hong Kong) Limited whose principal office is at
45th Floor, Two Exchange Square, Central, Hong Kong ("CSFB"); and
6. Deutsche Bank AG, Hong Kong Branch, whose principal office is at 55th
Floor, Cheung Kong Center, 2 Queen's Road Central, Hong Kong ("DB",
together with CICC, Citigroup and CSFB are hereinafter referred to as the
"Joint Global Coordinators").
RECITALS
WHEREAS, the Company is proposing to obtain a listing for its Overseas
Listed Foreign-invested Ordinary Shares with a par value of RMB1.00 each
("Shares") on The Stock Exchange of Hong Kong Limited (the "SEHK"), and for
American Depositary Shares representing Shares ("ADSs") on the New York Stock
Exchange, by way of a global offering (the "Global Offering") of Shares and ADSs
including:
(i) a public offering by the Company and China Life Insurance (Group)
Company, a state-owned enterprise organized and existing under the laws of the
People's Republic of China and the controlling shareholder of the Company (the
"Parent"), of Shares for subscription and purchase to members of the public in
Hong Kong (the "Hong Kong Public Offering");
(ii) an offering of ADSs (which may, at the option of investors, be
delivered in the form of Shares) by the Company and the Parent to investors
outside the United States and Canada and to professional and institutional
investors in Hong Kong (other than to members of the public in Hong Kong) (the
"International Offering"); and
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(iii) a registered public offering of ADSs by the Company and the Parent in
the United States and a private placement in Canada (which may, at the option of
investors, be delivered in the form of Shares) (the "US Offering").
WHEREAS, the Investor wishes to make a significant equity investment in the
Company subject to the conditions and according to the terms set out in this
Agreement.
NOW, THEREFORE, in consideration of the foregoing recitals and the mutual
promises hereinafter set forth the parties hereto agree as follows:
1. Definitions and Interpretation.
1.1 In this Agreement:
"ADSs" has the meaning set forth in the Recitals.
"Agreement" has the meaning set forth in the Preamble.
"Business Day" means any day except a Saturday, Sunday or other day on
which commercial banks in Hong Kong are authorized or permitted by law
to close.
"Closing Date" has the meaning set forth in Section 4.
"Company" has the meaning set forth in the Preamble.
"Competitor" has the meaning set forth in Section 9.3.
"Delivery Date" has the meaning set forth in Section 4.
"evaluation material" has the meaning set forth in Section 6.1(f).
"Global Offering" has the meaning set forth in the Recitals.
"Hong Kong Public Offering" has the meaning set forth in the Recitals.
"International Offering" has the meaning set forth in the Recitals.
"Investor Shares" has the meaning set forth in Section 2.2 or 2.3, as
the case may be.
"Investor Subsidiary" has the meaning set forth in Section 2.1.
"Investor" has the meaning set forth in the Preamble.
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"IPO Price" has the meaning set forth in Section 2.2 or 2.3, as the
case may be.
"Joint Global Coordinators" has the meaning set forth in the Preamble.
"Listing Rules" has the meaning set forth in Section 7.1(g).
"Lockup Period" has the meaning set forth in Section 5.1.
"NASD" has the meaning set forth in Section 7.1(h).
"Parent" has the meaning set forth in the Recitals.
"Relevant Shares" has the meaning set forth in Section 5.3.
"Securities Act" means the United States Securities Act of 1933, as
amended.
"SEHK" has the meaning set forth in the Recitals.
"Shares" has the meaning set forth in the Recitals.
"US Offering" has the meaning set forth in the Recitals.
1.2 In this Agreement:
(a) references to "sections" and the "schedules" are to sections of
and the schedules to this Agreement;
(b) headings are for convenience only and shall not affect the
construction of this Agreement;
(c) the schedules form an integral part of this Agreement and any
reference to this Agreement shall include the schedules; and
(d) the term "subsidiary" has the meaning ascribed to it in the
Companies Ordinance (Chapter 32 of the Laws of Hong Kong); and
(e) the term "affiliate" of a company means any entity directly or
indirectly controlling or controlled by or under the direct or
indirect common control with such company, "control" for purpose
of this definition being taken to mean direct or indirect
ownership of at least 50% of the voting rights of the relevant
entity.
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2. Investment.
2.1 The Investor will acquire the Investor Shares at the IPO Price under
and as part of the International Offering, through the Joint Global
Coordinators or their affiliates in their capacity as underwriters of
the relevant portion of the International Offering. The Investor may
elect by notice in writing issued to the Joint Global Coordinators not
later than two Business Days prior to the Closing Date to acquire the
Investor Shares through a direct or indirect wholly-owned subsidiary
of the Investor that is not a U.S. Person (as defined in Rule 902 of
Regulation S under the Securities Act) (the "Investor Subsidiary") in
which case (a) the agreements, undertakings, representations and
warranties, acknowledgments and confirmations given or made by the
Investor in this Agreement shall be deemed to be given by the Investor
for itself and on behalf of the Investor Subsidiary and (b) the rights
and benefits granted under this Agreement to the Investor shall be
granted to and shall be exercisable by the Investor or the Investor
Subsidiary.
2.2 For the purposes of this Agreement, (a) the "Investor Shares" means
such number of Shares offered by the Company in the International
Offering (including Shares issued or sold in the form of ADSs) equal
to the maximum number of Shares that may be purchased with US$100
million at the IPO Price, rounded down to the nearest whole number;
and (b) the "IPO Price" means the price per Share at which Shares are
acquired by investors under the International Offering, expressed in
Hong Kong dollars, and determined as referred to in Section 6.1(a).
The exchange rate between Hong Kong dollars and U.S. dollars shall be
such rate as set forth on the cover page of the final offering
circular for the International Offering.
2.3 Notwithstanding the provisions of Section 2.2, the Investor may by
notice in writing issued to the Joint Global Coordinators not later
than five Business Days prior to the due date for payment referred to
in Section 4 elect on behalf of itself or the Investor Subsidiary, as
the case may be, to receive such number of ADSs as represent the
aforementioned number of Shares (rounded down to the nearest whole
number of ADSs), in which case "Investor Shares" means the number of
ADSs so determined and the "IPO Price" means the price per ADS at
which ADSs are acquired by investors under the International Offering,
expressed in US dollars, and determined as referred to in Section
6.1(a).
2.4 The number of Investor Shares to be acquired by the Investor under
this Agreement will not be affected by any re-allocation of Shares
between the International Offering and the Hong Kong Public Offering
in the event of over-subscription under the Hong Kong Public Offering.
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3. Conditions.
The Investor's agreement in Section 2 (and the right of the Investor or the
Investor Subsidiary to acquire the Investor Shares) is conditional upon the
underwriting agreements covering each of the Hong Kong Public Offering, the
International Offering and the US Offering being entered into by and among
the Company, the Parent and the respective underwriters by not later than
December 15, 2003 and having become effective and the obligations of such
underwriters under the respective underwriting agreements having become
unconditional and not having been terminated (in accordance with their
respective original terms or as subsequently varied by agreement of the
relevant parties) by no later than December 18, 2003. The Company and the
Joint Global Coordinators will take steps to ensure that the Global
Offering is duly completed but there can be no guarantee of this and no
liability to the Investor or the Investor Subsidiary will arise if the
Global Offering is not duly completed for any reason.
4. Closing.
Subject to Section 3, settlement of the purchase of the Investor Shares
will take place contemporaneously with settlement of the International
Offering. Payment for the Investor Shares shall be made to the Joint Global
Coordinators on the same day as payment is required from other investors
which acquire Shares or ADSs, as the case may be, under the International
Offering through the Joint Global Coordinators or their affiliates in their
capacity as underwriters of the relevant portion thereof (the "Closing
Date"). Delivery of the Investor Shares to the Investor or the Investor
Subsidiary, as the case may be, shall be made through Hong Kong Securities
Clearing Company Limited for the account of the Investor or the Investor
Subsidiary, as the case may be, or if the Investor has elected to take ADSs
pursuant to Section 2.3, through the facilities of The Depositary Trust
Company for the account of the Investor or the Investor Subsidiary, as the
case may be, on the date notified to the Investor by the Joint Global
Coordinators, which shall not be later than 31 days after the date of
pricing as referred to in Section 6.1(a), but otherwise on the same date
(the "Delivery Date") and basis on which Shares or ADSs, as the case may
be, are delivered to other investors which acquire Shares or ADSs, as the
case may be, through the Joint Global Coordinators or their affiliates
under the International Offering (or in any other manner which the Company,
the Joint Global Coordinators and the Investor may agree).
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5. Restrictions on Disposals by the Investor.
5.1 The Investor agrees that without the prior written consent of the
Company and the Joint Global Coordinators, it will not, at any time
during the period of 12 months following the date of commencement of
dealings in the Shares on the SEHK (the "Lockup Period"), directly or
indirectly dispose of any of the Relevant Shares. After the expiration
of the Lockup Period, the Investor shall be free to dispose of any
Relevant Shares, provided that the Investor shall use all reasonable
endeavors to ensure that any such disposal does not create a
disorderly or false market and is otherwise in compliance with the
Securities Act and the Securities and Futures Ordinance of Hong Kong.
5.2 Notwithstanding Section 5.1, the Investor may freely transfer all or
part of the Relevant Shares to a direct or indirect wholly-owned
subsidiary of the Investor during the Lockup Period, provided that (a)
such subsidiary shall first give a written undertaking in favor of the
Company and the Joint Global Coordinators agreeing to be bound by the
Investor's obligations under this Agreement, including but without
limitation to the obligations set out in Section 5.1, prior to such
transfer, and (b) if such subsidiary is about to or will cease to be
qualified as a direct or indirect wholly-owned subsidiary of the
Investor, such subsidiary shall (and the Investor shall procure such
subsidiary shall), before ceasing to be so qualified, ensure that its
entire interest in any such Relevant Shares is fully and effectively
transferred to the Investor or a direct or indirect wholly-owned
subsidiary of the Investor.
5.3 For the purpose of this Section 5:
"dispose of" or "disposal" includes selling, mortgaging, creating,
transferring or otherwise howsoever disposing of any legal or
beneficial interest (including by the creation of an option) in
Relevant Shares; and
"Relevant Shares" mean the Investor Shares and any shares or other
securities of the Company which are derived from the Investor Shares,
including any convertibles, equity-linked securities and derivatives
with underlying assets being the Investor Shares (pursuant to any
rights issue, capitalization issue, capital reorganization or
otherwise) whether such other transaction is to be settled by delivery
of the Relevant Shares in cash or otherwise.
6. Acknowledgments.
6.1 The Investor acknowledges and confirms that:
(a) the IPO Price is to be fixed by agreement between the Company,
the Parent and the Joint Global Coordinators (on behalf of the
several underwriters) following, and on the basis of, an
international "roadshow" and "book building" process;
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(b) this Agreement and the relationship and arrangements between the
parties contemplated by this Agreement will be required to be
described in public offering documentation and other marketing
materials for the Global Offering and, specifically, this
Agreement will be a material contract required to be filed with
regulatory authorities and/or made available for public
inspection in connection with the Global Offering;
(c) at or around the time of entering into this Agreement, the
Company may have entered into, or proposes to enter into,
agreements with one or more other corporate or strategic
investors;
(d) the Investor Shares have not been and will not be registered
under the Securities Act or with any state securities regulator
of the United States and may not be offered, resold, pledged or
otherwise transferred except pursuant to an exemption from, or in
a transaction not subject to, the registration requirements of
the Securities Act;
(e) this Agreement and the term sheet relating thereto do not,
collectively or separately, constitute an offer of securities for
sale in the United States;
(f) without prejudice to the representations and warranties of the
Company set forth herein, neither the Company, the Parent, the
Joint Global Coordinators, nor any of their respective
affiliates, representatives or advisers have made, or make, any
representation or warranty as to the accuracy or completeness of
any information or material concerning the Company and/or the
Parent (whether prepared by the Company, the Parent, the Joint
Global Coordinators, or their respective affiliates,
representatives or advisers or otherwise) furnished to the
Investor by or on behalf of the Company or the Parent on or
before the date hereof (collectively "evaluation material"), and
none of the Company, the Parent, the Joint Global Coordinators
and their respective affiliates, representatives or advisers has
or will have any liability to the Investor or the Investor
Subsidiary or any of their affiliates, representatives or
advisers resulting from their use of the evaluation material;
(g) the Investor has not relied, and will not be entitled to rely, on
any legal opinion or other advice given by legal counsel to the
Company or the Parent or legal counsel to the Joint Global
Coordinators and underwriters in connection with the Global
Offering, and has taken its own independent advice to the extent
it has considered necessary or appropriate; and
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(h) subject to Section 2.4, (i) the number of Shares and ADSs
comprising the Global Offering or any part thereof, and (ii) the
ratio of Shares and ADSs to be offered by the Company and the
Parent respectively under the Global Offering or any part
thereof, will be subject to change or adjustment as may be agreed
among the Company, the Parent and the Joint Global Coordinators
or, where applicable, pursuant to the underwriting agreements
covering each of the Hong Kong Public Offering, the International
Offering and the US Offering being entered into by and among the
Company, the Parent and the respective underwriters.
7. Representations and Warranties of the Investor.
7.1 The Investor hereby represents and warrants to the Company as follows:
(a) the Investor has been duly incorporated as a limited liability
company and is validly existing under the laws of Hong Kong;
(b) the Investor has the right, power and authority to (and has taken
all actions required, including but not limited to, the obtaining
of all necessary governmental or regulatory approvals and
consents from third parties, in order to) execute and deliver
this Agreement, perform its obligations hereunder, and enter into
and carry out the transactions contemplated hereby;
(c) this Agreement has been duly authorized, executed and delivered
by the Investor and constitutes a valid, legal and binding
obligation of the Investor enforceable against the Investor in
accordance with its terms;
(d) the Investor is purchasing the Investor Shares for investment
purposes without a view to making distribution of any of the
Investor Shares purchased by it hereunder;
(e) the Investor is not, and any Investor Subsidiary designated
pursuant to Section 2.1 will not be, a U.S. Person (as defined in
Rule 902 of Regulation S under the Securities Act) and the
Investor or the Investor Subsidiary will acquire the Investor
Shares in an offshore transaction in reliance on Regulation S
under the Securities Act;
(f) the Investor has such knowledge and experience in financial and
business matters that it is capable of evaluating the merits and
risks of its investment in the Investor Shares, and has received
all the information it considers necessary or appropriate for
deciding whether to purchase the Investor Shares;
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(g) this Agreement does not constitute a "connected transaction" from
the Investor's perspective under the Rules Governing the Listing
of Securities on The Stock Exchange of Hong Kong Limited (the
"Listing Rules"), notwithstanding any relationship between the
Investor and any other party or parties which may be entering
into (or have entered into) any other agreement or agreements
referred to in Section 6.1(c);
(h) the Investor does not, directly or indirectly, own more than 5
percent of the outstanding common stock (or other voting
securities) of any member of the National Association of
Securities Dealers, Inc. ("NASD") or a holding company for a NASD
member, and is not otherwise a "restricted person" for the
purposes of the Free-Riding and Withholding Interpretation of
NASD; and
(i) its acquisition of and investment in the Investor Shares complies
with the provisions of paragraph 5 of Appendix 6 (Placing
Guidelines for Equity Securities) to the Listing Rules.
8. Representations and Warranties of the Company.
8.1 The Company represents and warrants to the Investor as follows:
(a) the Company has been duly incorporated as a joint stock company
with limited liability and is validly existing under the laws of
the People's Republic of China;
(b) the Company has the right, power and authority to (and has taken
all actions required, including but not limited to, the obtaining
of all necessary governmental or regulatory approvals and
consents from third parties, in order to) execute and deliver
this Agreement, perform its obligations hereunder, and enter into
and carry out the transactions contemplated hereby;
(c) this Agreement has been duly authorized, executed and delivered
by the Company and constitutes a valid, legal and binding
obligation of the Company enforceable against the Company in
accordance with its terms;
(d) each of the Investor Shares issued by the Company in accordance
with the term of this Agreement will have been duly and validly
authorized and issued and credited as fully paid, and will be
free from any mortgage, charge, pledge, lien, option,
restriction, right of first refusal, right of pre-emption, third
party right or interest, other encumbrance or security interest
of any kind, including, without limitation, a title transfer or
retention arrangement having similar effect;
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(e) each of the Investor Shares will, when acquired by the Investor,
rank pari passu in all respects to the other Shares or ADSs, as
the case may be, comprised in the Global Offering and will
conform in all material respects to the description of the Shares
or ADSs (as the case may be) contained in the final offering
circular for the International Offering issued by the Company;
and
(f) the Company is a "foreign issuer" (as defined in Regulation S
under the Securities Act) and neither the Company, nor the
Parent, nor any of its affiliates, nor any person acting on its
or their behalf has engaged in any "directed selling efforts" (as
defined in Regulation S under the Securities Act) with respect to
the Investor Shares.
9. Investor's Covenants.
9.1 The Investor shall not, without the prior written consent of the
Company and the Joint Global Coordinators, whether directly or
indirectly, at any time during the period of 12 months following the
date of commencement of dealings in the Shares on the SEHK, itself or
with any person deemed to be acting in concert with (as defined in the
Hong Kong Codes on Takeovers and Mergers and Share Repurchases) the
Investor and their respective associates (as defined in the Listing
Rules) acquire any interest in any additional Shares or ADSs,
securities convertible into Shares or ADSs or any other equity
securities of the Company.
9.2 The Investor shall not, without the prior written consent of the
Company, directly or indirectly, itself or with any person deemed to
be acting in concert with (as defined in the Hong Kong Codes on
Takeovers and Mergers and Share Repurchases) the Investor and their
respective associates (as defined in the Listing Rules) hold more than
9.9% of the Company's share capital (including at their then current
conversion ratios securities convertible at the option of the holder
into the share capital of the Company) provided nothing herein shall
prohibit the Investor, any person deemed to be acting in concert with
it and their respective associates from accepting a general offer
within the ambit of the HK Codes as referred. In the event that, for
any reason, the Investor's shareholding increases to above 9.9% of the
Company's share capital (including at their then current conversion
ratios securities convertible at the option of the holder into the
share
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capital of the Company), the Investor shall, within five Business
Days from the date of such increase, dispose of such number of
Shares as shall reduce its shareholding to 9.9% or less of the
Company's share capital (including at their then current
conversion ratios securities convertible at the option of the
holder into the share capital of the Company).
9.3 Without the prior written consent of the Company, the Investor
shall not effect (or cause to be effected) any block trade,
private sale or any other form of placing of all or any of the
Relevant Shares which shall result in any such Relevant Shares
being acquired directly or indirectly by a Competitor of the
Company, provided that nothing in this Section shall prohibit the
Investor from disposing of the Relevant Shares on the SEHK or the
New York Stock Exchange or otherwise in the open market or
through placing agents to persons not selected by the Investor
and which are not known by the Investor (having made reasonable
enquiries) to be a Competitor of the Company. For purposes of
this Section 9.3, a "Competitor" of the Company is a person
engaged, directly or through a subsidiary or affiliate, in the
life, health or accident insurance business in the People's
Republic of China.
9.4 In order to facilitate after-market stabilization, the Investor
shall enter into a stock borrowing agreement with the Joint
Global Coordinators containing customary terms and conditions,
pursuant to which the Investor shall agree to lend to the Joint
Global Coordinators Investor Shares purchased by it, upon request
from the Joint Global Coordinators and subject to the conditions
and according to the terms of the stock borrowing agreement, at
any time during the period of 30 calendar days following the date
of commencement of dealings in the Shares on the SEHK.
9.5 The Investor acknowledges that it has received (and may receive)
information that may constitute material, non-public information
in connection with its investment in (and holding of) the
Investor Shares, and shall not (and shall use its best efforts to
ensure that its affiliates, associates, directors, officers,
employees, advisers or representatives, or their respective
affiliates or associates do not) purchase, sell or otherwise
trade, directly or indirectly, in the Shares, convertibles,
derivatives or other securities of the Company in a manner that
could result in any violation of the securities laws or
regulations of the United States, Hong Kong, the People's
Republic of China or any other jurisdiction.
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9.6 The Investor shall not, and shall not permit any of its
associates (as such term is defined in the Listing Rules) to,
apply for Shares in the Hong Kong Public Offering, except where
the Investor or its associate (as such term is defined in the
Listing Rules) is acting as a nominee for its customer.
10. Confidentiality and No Announcement
10.1 Prior to the official public filing with the United States
Securities and Exchange Commission of an amendment to the
Company's Registration Statement for the Global Offering
disclosing the investment by the Investor hereunder, the parties
shall keep confidential the subject matter and the terms of this
Agreement save with the prior written consent of the parties,
except (a) for any disclosure or announcement by the Company
which may be required under the Securities Act or the Listing
Rules (but only after prior consultation, if practicable, with
the Investor with respect to the form, content and timing of any
such disclosure or announcement); (b) for any disclosure or
announcement by the Investor which may be required by any other
stock exchange on which securities issued by the Investor or any
of its affiliates are listed or traded (but only after such prior
consultation as is practicable in the circumstances with the
Company and the Joint Global Coordinators with respect to the
form, content and timing of any such announcement); (c) as may be
required by applicable law or regulation (in which case, the
relevant party making the announcement shall notify and obtain
the consent of the other parties hereto to the extent reasonably
practicable in the circumstances); or (d) as may be agreed by the
Company, the Joint Global Coordinators and the Investor (such
agreement not to be unreasonably withheld or delayed).
10.2 The Investor and its affiliates shall not make, dispatch or issue
any public announcement or communication which relates to the
subject matter or the terms of this Agreement or which contains
reference(s) to the Company or the Global Offering save with the
prior written consent of the Company and the Joint Global
Coordinators, except (a) for any disclosure or announcement by
the Investor which may be required by any stock exchange on which
securities issued by the Investor or any of its affiliates are
listed or traded (but only after such prior consultation as is
practicable in the circumstances with the Company and the Joint
Global Coordinators with respect to the form, content and timing
of any such announcement) or (b) as may be required by applicable
law or regulation (in which case, the Investor shall notify and
obtain the consent of the Company and the Joint Global
Coordinators to the extent practicable in the circumstances).
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11. Expenses
Each of the parties shall bear its own costs (including legal and other
professional fees) and out-of-pocket expenses in connection with
preparation, negotiation, execution of this Agreement and the term sheet
related thereto.
12. Miscellaneous.
12.1 Unless otherwise notified by the relevant parties, all notices
delivered hereunder shall be in writing and may be delivered by hand
or given by facsimile to the parties at their addresses for notices
specified in Schedule 1, or at such other address as any party may
have specified by notice to the other parties pursuant to this
Section 12.1. Any notice delivered by hand shall be deemed to have
been received when physically received by the person referred to in
Section 12.1. Any notice served by facsimile machine shall be deemed
to have been served on receipt of confirmation of successful
transmission if (a) within one hour after the successful transmission
of the facsimile, oral notice of such facsimile is provided to the
addressee (whether through voice mail or actual conversation); and
(b) such transmission is followed within 24 hours by posting a copy
of such facsimile and confirmation to the addressee by air-mail,
postage prepaid, or by internationally recognized courier service.
12.2 This Agreement and the documents referred to herein constitute the
entire agreement among the parties and no party shall be liable or
bound to any other party in any manner by any warranties,
representations, or covenants in respect of the subject matter hereof
except as specifically set forth herein or therein. The warranties,
representations and covenants of the Company and of the Investor
contained in or made pursuant to this Agreement shall survive the
execution and performance of this Agreement and the closing of the
Global Offering.
12.3 This Agreement may not be amended or varied without the prior written
consent of the parties hereto.
12.4 Nothing in this Agreement, express or implied, is intended to confer
upon any party other than the parties hereto or their respective
successors. The Investor may not assign any of its rights under this
Agreement except as contemplated by Section 2.1.
12.5 This Agreement shall be governed by and construed under the laws of
Hong Kong Special Administrative Region of the People's Republic of
China, without giving effect to the principles of conflicts of law
thereof.
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12.6 Each of the parties hereto agrees that any dispute arising out of or
relating to this Agreement, including any question regarding its
existence, validity or termination, shall be referred to and finally
resolved exclusively by arbitration at the Hong Kong International
Arbitration Centre in accordance with its Arbitration Rules. Any
decision or award of the arbitral tribunal shall be final and binding
upon all parties to the arbitration proceeding. In furtherance of the
foregoing submission to arbitration, each of the parties hereto
irrevocably waives any immunity to jurisdiction to which it may be
entitled or become entitled (including without limitation sovereign
immunity, immunity to pre-award attachment, post-award attachment or
otherwise) in any arbitration proceedings and/or enforcement
proceedings against it arising out of or based on this Agreement or
the transactions contemplated hereby. The language to be used in the
arbitration proceedings shall be English.
12.7 (a) The Investor appoints Mr. Michael Pei of 33rd Floor, New World
Tower I, 16-18 Queen's Road Central, Hong Kong as its authorized
agent for accepting service of all legal process arising out of
or in connection with this Agreement and service on such agent
shall be deemed, for all purposes, to be due and effective
service on the Investor. If for any reason such agent ceases to
be the Investor's agent for the service of process, the Investor
shall forthwith appoint a replacement agent for the service of
process in Hong Kong acceptable to all other parties hereto and
deliver to each other party a copy of the replacement agent's
acceptance of such appointment within 7 Business Days.
(b) CICC appoints China International Capital Corporation (Hong
Kong) Limited of Suite 2307, 23rd Floor, One International
Finance Centre, 1 Harbour View Street, Central, Hong Kong as its
authorized agent for accepting service of all legal process
arising out of or in connection with this Agreement and service
on such agent shall be deemed, for all purposes, to be due and
effective service on CICC. If for any reason such agent ceases
to be CICC's agent for the service of process, CICC shall
forthwith appoint a replacement agent for the service of process
in Hong Kong acceptable to all other parties hereto and deliver
to each other party a copy of the replacement agent's acceptance
of such appointment within 7 Business Days.
12.8 This Agreement may be executed in two or more counterparts, each of
which shall be deemed an original, but all of which together shall
constitute one and the same instrument.
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<PAGE>
IN WITNESS whereof, each of the parties has caused this Agreement to be
duly executed by its duly authorized signatory as of the date first set forth
above.
CHINA LIFE INSURANCE COMPANY LIMITED
By: ________________________
Name:
Title:
CHOW TAI FOOK NOMINEE LIMITED
By: ________________________
Name:
Title:
CHINA INTERNATIONAL CAPITAL CORPORATION LIMITED
By: ________________________
Name:
Title:
CITIGROUP GLOBAL MARKETS ASIA LIMITED
By: ________________________
Name:
Title:
CREDIT SUISSE FIRST BOSTON (HONG KONG) LIMITED
By: ________________________
Name:
Title:
DEUTSCHE BANK AG, HONG KONG BRANCH
By: ________________________
Name:
Title:
15
<PAGE>
SCHEDULE 1
ADDRESSES FOR NOTICES
If to the Company:
16, Chaowai Avenue
Chaoyang District
Beijing, 100020
People's Republic of China
Facsimile: (8610) 6617 2189
Telephone: (8610) 6611 6716
For the attention of Wang Sidong
With a copy to:
Debevoise & Plimpton
2202 Jin Mao Tower
88 Century Boulevard
Shanghai 200121
People's Republic of China
Facsimile: (8621) 5047-1600
Telephone: (8621) 5047-1800
For the attention of Li Li
If to Investor:
Chow Tai Fook Nominee Limited
31st Floor, New World Tower I
16-18 Queen's Road Central
Hong Kong
Facsimile: (852) 2810 4297
Telephone: (852) 2524 3166
For the attention of Mr. Wat Chung Wing
With a copy to:
Mr. Michael Pei
33rd Floor, New World Tower
I 16-18 Queen's Road Central
Hong Kong
Facsimile: (852) 2537 6701
Telephone: (852) 2844 3186
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<PAGE>
If to the Joint Global Coordinators:
China International Capital Corporation Limited
Suite 2307, 23rd Floor
One International Finance Centre
1 Harbour View Street
Central, Hong Kong
Facsimile: (852) 2872 2100
Telephone: (852) 2872 2000
For the attention of: Susan Li/Zhaohui Huang
Citigroup Global Markets Asia Limited
20th Floor, Three Exchange Square
Central, Hong Kong
Facsimile: (852) 2501 8225
Telephone: (852) 2501 2000
For the attention of Equity Capital Markets
Credit Suisse First Boston (Hong Kong) Limited
45/F, Two Exchange Square
8 Connaught Place
Central, Hong Kong
Facsimile: (852) 2101 7721
Telephone: (852) 2101 6000
For the attention of Legal & Compliance Department
Deutsche Bank AG, Hong Kong Branch
55/F Cheung Kong Center
2 Queen's Road Central, Hong Kong
Facsimile: (852) 2203 7202
Telephone: (852) 2203 8888
For the attention of Equity Capital Markets
With a copy to:
Skadden, Arps, Slate, Meagher & Flom LLP
30/F Tower Two, Lippo Centre
89 Queensway, Central, Hong Kong
Facsimile: (852) 2820 0700
Telephone: (852) 2820 0727
For the attention of Gregory Miao
17