SUBSCRIPTION AGREEMENT

Transcription

1 Execution Version Dated 10 April 2012 (1) VINDA INTERNATIONAL HOLDINGS LIMITED and (2) FU AN INTERNATIONAL COMPANY LIMITED SUBSCRIPTION AGREEMENT relating to Shares in the share capital of VINDA INTERNATIONAL HOLDINGS LIMITED

2 Contents Clause Heading Page 1 DEFINITIONS AND INTERPRETATION SUBSCRIPTION CONDITIONS OF SUBSCRIPTION COMPLETION OF THE SUBSCRIPTION UNDERTAKINGS OF THE SUBSCRIBER AND THE COMPANY REPRESENTATIONS, WARRANTIES AND UNDERTAKINGS ANNOUNCEMENTS TIME OF THE ESSENCE NOTICES MISCELLANEOUS APPLICABLE LAW AND JURISDICTION... 7

3 THIS SUBSCRIPTION AGREEMENT is made on 10 April 2012 BETWEEN: (1) VINDA INTERNATIONAL HOLDINGS LIMITED, a company duly incorporated in the Cayman Islands whose principal place of business in Hong Kong is at Room 506, Tower 1, South Seas Centre, 75 Mody Road, Tsim Sha Tsui East, Kowloon, Hong Kong (the Company ); and (2) FU AN INTERNATIONAL COMPANY LIMITED, a company duly incorporated in the BVI with a correspondence address in Hong Kong at Room 506, Tower 1, South Seas Centre, 75 Mody Road, Tsim Sha Tsui East, Kowloon, Hong Kong (the Subscriber ). WHEREAS: (A) (B) (C) (D) (E) (F) At the date hereof, the Company has an authorised capital of HK$8,000,000,000 divided into 80,000,000,000 ordinary shares of HK$0.1 each (the Shares ), of which 957,234,686 Shares have been issued and are fully paid up or credited as fully paid. All of the issued Shares are currently listed on the Stock Exchange. The Subscriber is an investment holding company incorporated in the BVI. Pursuant to the placing agreement dated 10 April 2012 (the Placing Agreement ) entered into between the Company, Merrill Lynch Far East Limited (the Placing Agent ) and the Vendor (as defined in the Placing Agreement), the Vendor has agreed to appoint the Placing Agent, and the Placing Agent has agreed, to act as the Vendor s agent for the purpose of procuring purchasers for a total of up to 42,000,000 Shares (the Placing Shares ) at a placing price per Share to be determined by the parties based on a bookbuilding process (the Placing Price ) and on the terms and subject to the conditions in the Placing Agreement. The Subscriber is the legal and beneficial owner of the Placing Shares prior to completion of the Placing. Pursuant to the Placing Agreement, the Subscriber agreed to sell up to 42,000,000 Shares. Following completion of the Placing, the Company has agreed to allot and issue to the Subscriber, and the Subscriber has agreed to subscribe for the Subscription Shares upon the terms and subject to the conditions herein contained. Application will be made to the Stock Exchange for the listing of, and permission to deal in, the Subscription Shares. NOW IT IS HEREBY AGREED as follows: 1 DEFINITIONS AND INTERPRETATION 1.1 In this Agreement (including the recitals), the following expressions shall, unless the context requires otherwise, have the following meanings: Agreement means this subscription agreement (as may be amended or varied from time to time by an agreement in writing duly executed by the Parties); Announcement means the announcement in the agreed form to be issued by the Company as soon as possible following the execution of this Agreement pursuant to the requirements under the Listing Rules;

4 Business Day means any day (excluding a Saturday) or Sunday or public holiday in Hong Kong) on which banks are generally open for business in Hong Kong; BVI means British Virgin Islands; CCASS means the Central Clearing and Settlement System operated by Hong Kong Securities Clearing Company Limited; Companies Ordinance means the Companies Ordinance (Chapter 32 of the Laws of Hong Kong) for the time being in force; Conditions means the conditions to completion of the Subscription set out in Clause 3.1; Concert Parties means the Subscriber together with Mr. Li Chao Wang, Ms. Yu Yi Fang and Mr. Dong Yi Ping; Expenses means the expenses properly incurred by the Subscriber in relation to the Subscription and the commissions and other expenses relating to the Placing of the Placing Shares; Hong Kong means the Hong Kong Special Administrative Region of the People s Republic of China; HK$ means Hong Kong dollars, the lawful currency of Hong Kong; Listing Committee means the listing sub-committee of the board of directors of the Stock Exchange; Listing Rules means the Rules Governing the Listing of Securities on The Stock Exchange of Hong Kong Limited for the time being in force; Participant means a person admitted for the time being by Hong Kong Securities Clearing Company Limited as a participant of CCASS; Parties means the named parties to this Agreement and their respective successors and permitted assigns and Party means each one of them; Placing means the private placing by or on behalf of the Placing Agent of the Placing Shares on the terms and subject to the conditions set out in the Placing Agreement; SFC means the Securities and Futures Commission; SFO means the Securities and Futures Ordinance (Chapter 571 of the Laws of Hong Kong) for the time being in force; Stock Exchange means The Stock Exchange of Hong Kong Limited; Subscription means the subscription by the Subscriber for the Subscription Shares on and subject to the terms and conditions set out in this Agreement; Subscription Price means such a sum which equals to the Placing Price; Subscription Monies means such sum as is the aggregate of the Subscription Price multiplied by the number of Subscription Shares less the Expenses; Subscription Shares means up to 42,000,000 new Shares to be issued to the Subscriber by the Company under the Subscription; 2

5 subsidiary has the same meaning as in Sections 2 and 2B of the Companies Ordinance; and Takeovers Code means the Hong Kong Code on Takeovers and Mergers issued by the SFC. 1.2 Any reference to a document being in the agreed form means in the form of the draft thereof signed for identification on behalf of the Company, the representative of the Subscriber and the Placing Agent with such alterations (if any) as may be agreed between the Parties. 1.3 In this Agreement, references to any statute, statutory provision, Listing Rule or a rule of the Takeovers Code include a reference to that statute, statutory provision, Listing Rule or a rule of the Takeovers Code as from time to time amended, extended or re-enacted. 1.4 In this Agreement, references to persons include references to bodies corporate, references to singular include references to the plural and vice versa; and words denoting one gender only shall include other genders. 1.5 Headings are inserted for convenience only and shall not affect the interpretation of this Agreement. 1.6 All references in this Agreement in relation to any time, date or period shall mean Hong Kong time. 1.7 References to Clauses, Sub-clauses and Schedules are references to clauses and subclauses of and schedules to this Agreement. 2 SUBSCRIPTION 2.1 Subject to Clause 3.1, the Subscriber agrees to subscribe as principal for, and the Company agrees to allot and issue, the Subscription Shares at the Subscription Price, free from all liens, charges, security interests, encumbrances and adverse claims on the terms and subject to the conditions set out in this Agreement. 2.2 The Company agrees that the Subscription Shares shall, when fully paid, rank pari passu in all respects with the other Shares in issue or to be issued by the Company on or prior to the date of completion of the Subscription including the rights to all dividends and other distributions declared, made or paid at any time after the date of allotment. 3 CONDITIONS OF SUBSCRIPTION 3.1 Completion of the Subscription is conditional upon the fulfilment of the following conditions: a waiver granted by the SFC to the Concert Parties waiving their obligation to observe Rule 26.1 of the Takeovers Code in relation to the Placing and Subscription; the Listing Committee of the Stock Exchange granting the listing of and permission to deal in the Subscription Shares (and such listing and permission not subsequently revoked prior to the delivery of definitive share certificate(s) representing the Subscription Shares under Clause 4.3 hereof); and 3

6 3.1.3 completion of the Placing having occurred pursuant to the terms of the Placing Agreement. 3.2 The Company shall, as soon as is reasonably practicable, apply to the Stock Exchange for the granting of listing of, and permission to deal in, the Subscription Shares after the signing of this Agreement and the Company shall obtain the granting of such listing and permission to deal by the Listing Committee as soon as is reasonably practicable and will inform the Subscriber and the Placing Agent promptly following the granting of the same. The Company shall furnish such information, supply such documents, pay such fees and do all such acts and things as may reasonably be required by the Subscriber, the Placing Agent, the SFC and/or the Stock Exchange in connection with the fulfilment of the Conditions, including without limitation, a certified true copy of the listing approval granted by the Listing Committee. 3.3 If the Conditions are not fulfilled within 14 days after the date of this Agreement or such later date as may be agreed between the Company and the Subscriber, the obligations and liabilities of the Subscriber and the Company under the Subscription shall be null and void and neither the Company nor the Subscriber shall have any claim against the other for costs, damages, compensation or otherwise provided that: the Company shall reimburse the Subscriber any legal fees and out-of-pocket expenses which the Subscriber shall be obliged to pay in connection with the Subscription; and the Company shall forthwith pay to the Subscriber such amounts in respect of the net proceeds of the Placing as are held by the Company. 4 COMPLETION OF THE SUBSCRIPTION 4.1 Completion of the Subscription shall take place on the second Business Day after the date upon which the last of the Conditions to be satisfied shall have been so satisfied, provided that it shall take place on a date no later than a date falling 14 days after the date of this Agreement (or such other time and/or date as the Subscriber and the Company may agree in writing). 4.2 At completion of the Subscription, the Subscriber shall deliver to the Company application for the Subscription Shares agreed to be subscribed under this Agreement and shall pay or shall procure the payment of the Subscription Monies by electronic funds transfer or such other manner as instructed by the Company in the amount thereof. 4.3 Against compliance with the provisions of Clause 4.2, the Company shall: forthwith duly allot and issue to the Subscriber (or as it may direct) the Subscription Shares and shall promptly register without registration fee the Subscriber and/or its nominees as members in respect of the Subscription Shares; and at the option of the Subscriber, either: (i) deliver to the Subscriber (or as it may direct) the definitive certificates in respect of the Subscription Shares in favour of the Subscriber and/or its nominees; or (ii) deposit the same into the account of the relevant Participant with whom the Subscriber has accounts in accordance with the Subscriber s instructions. 4

7 4.4 Upon completion of the Subscription, the Company shall reimburse to the Subscriber the expenses properly incurred by the Subscriber in connection with the Placing, including without limitation the transaction fee and equity structuring fee payable to the Placing Agent, stamp duty, the SFC transaction levy, the Stock Exchange trading fee and such other costs and expenses as set out in clause 5.1 of the Placing Agreement. 4.5 In the event that completion of the Placing Agreement does not occur in accordance with its terms, the Company shall reimburse the Subscriber any legal fees and out-of-pocket expenses which the Subscriber shall be obliged to pay in connection with the Placing and this Agreement. 5 UNDERTAKINGS OF THE SUBSCRIBER AND THE COMPANY The Subscriber and the Company shall each make all appropriate disclosures pursuant to, and will each comply in all respects with all applicable laws, regulations and directions (including without limitation the Listing Rules, the Takeovers Code and the SFO) and all requirements of the Stock Exchange, the SFC or any other applicable regulatory body in connection with the Placing and the Subscription. 6 REPRESENTATIONS, WARRANTIES AND UNDERTAKINGS 6.1 The Company hereby represents, warrants and undertakes to the Subscriber on the following terms: the Company has the full right, power and authority to enter into and perform its obligations under this Agreement and, subject to satisfaction of the Conditions, to allot and issue the Subscription Shares without any sanction or consent of its members and all necessary authorisations, approvals, consents and licences relating to the same have been, or will, prior to completion of the Subscription, be unconditionally obtained and are, or will, prior to completion of the Subscription, be in full force and effect, and this Agreement is a legal, valid and binding agreement of the Company, enforceable in accordance with its terms; and the allotment and issue of the Subscription Shares pursuant to this Agreement will not result in any breach of and will comply with all the relevant laws and regulations which include, but without limitation to, the Companies Ordinance, the Listing Rules and the Takeovers Code. 6.2 The Subscriber hereby represents, warrants and undertakes to the Company to subscribe for the Subscription Shares subject to the Memorandum and Articles of Association of the Company. 6.3 The representations, warranties and undertakings set out in Clause 6 are given as at the date hereof and shall remain true and accurate and in force up to and including the date of completion of the Subscription as if given or made on such date, with reference in each case to the facts and circumstances then subsisting. 6.4 The rights and remedies of each Party in respect of the representations, warranties and undertakings referred to in Clause 6 shall not be affected by: completion of the Subscription; 5

8 6.4.2 any investigation made into the affairs of any Party or any knowledge held or gained of any such affairs by or on behalf of the other Parties; or termination of this Agreement or any event or matter whatsoever, other than a specific and duly authorised written waiver or release by the other Parties. 7 ANNOUNCEMENTS Save for the Announcement and save as required by law or by the Stock Exchange or the SFC, each of the Subscriber and the Company hereby undertakes to procure that no public announcement or communication to the press or to the Stock Exchange concerning the Subscription or the Company and/or its subsidiaries which is material in relation to the Subscription shall be made by or on behalf of the Subscriber and/or the Company between the date hereof and the date of completion of the Placing without prior written approval from the Placing Agent as to the content, timing and manner of making thereof. 8 TIME OF THE ESSENCE Any time, date or period mentioned in this Agreement may be extended by mutual agreement between the Subscriber and the Company but as regards any time, date or period originally fixed or any date or period so extended as aforesaid, time shall be of the essence. 9 NOTICES 9.1 All notices delivered hereunder shall be in writing in English and shall be communicated to the following addresses: If to the Company, to: AND Room 506, Tower 1, South Seas Centre, 75 Mody Road, Tsim Sha Tsui East, Kowloon, Hong Kong Facsimile: (852) Attention: Ms. Donna Zhang / Mr. Paul Tsang If to the Subscriber, to: Room 506, Tower 1, South Seas Centre, 75 Mody Road, Tsim Sha Tsui East, Kowloon, Hong Kong Facsimile: (852) Any such notice shall be served either by hand or by facsimile. Any notice shall be deemed to have been served, if served by hand, when delivered and if sent by facsimile, on receipt of confirmation of transmission. Any notice received on a Sunday or public holiday shall be deemed to be received on the next Business Day. 6

9 10 MISCELLANEOUS 10.1 Each Party undertakes with the other Parties that it shall execute and perform and procure that there are executed and performed such further documents and acts as any other Party may reasonably require to give effect to the provisions of this Agreement This Agreement constitutes the entire agreement and understanding between the Parties in connection with the Subscription. This Agreement supersedes all previous agreements or understandings which shall cease to have any further force or effect and no Party has entered into this Agreement in reliance upon any representation, warranty or undertaking which is not set out or referred to in this Agreement No variation of this Agreement shall be valid unless it is in writing and signed by or on behalf of each of the Subscriber and the Company. The expression variation shall include any variation, supplement, deletion or replacement however effected This Agreement may be executed in any number of counterparts and by the Parties on separate counterparts, each of which is an original but all of which together constitute one and the same instrument No failure or delay by any Party in exercising any right or remedy provided by law under or pursuant to this Agreement shall impair such right or remedy or operate or be construed as a waiver or variation of it or preclude its exercise at any subsequent time and no single or partial exercise of any such right or remedy shall preclude any other or further exercise of it or the exercise of any other right or remedy This Agreement shall be binding upon, and inure solely to the benefit of, each Party and, to the extent provided herein, any directors, officers, employees and controlling persons of each Party, and their heirs, executors, administrators, successors and assigns, and no other person shall acquire or have any right under or by virtue of this Agreement. 11 APPLICABLE LAW AND JURISDICTION 11.1 This Agreement is governed by and shall be construed in accordance with the laws of Hong Kong for the time being in force and each of the Parties hereby irrevocably submits to the non-exclusive jurisdictions of the courts of Hong Kong in any legal suit, action or proceeding arising out of or based upon this Agreement. The Subscriber and the Company each hereby 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 proceedings The Subscriber agrees that the process by which any legal proceedings in Hong Kong are begun may be served on it by being delivered to it at Room 506, Tower 1, South Seas Centre, 75 Mody Road, Tsim Sha Tsui East, Kowloon, Hong Kong or its other principal place of business in Hong Kong. If the above process agent ceases to have a place of business in Hong Kong, the Subscriber shall forthwith appoint a further person in Hong Kong to accept service of process on its behalf in Hong Kong and notify the other Party of such appointment. Nothing contained herein shall affect the right to serve process in any other manner permitted by law. 7

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