SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
==============================================================================
SCHEDULE 13D
Under the Securities Exchange Act of 1934
(Amendment No. 2)*
CHINA YUCHAI INTERNATIONAL LIMITED
(Name of Issuer)
Common Stock, Par Value $.10 Per Share
(Title of Class of Securities)
G210821050
(CUSIP Number)
Mr. Philip Ting
Chief Financial Officer
Hong Leong Asia Ltd.
16 Raffles Quay
#26-00 Hong Leong Building
Singapore 048581
65-62208411
(Name, Address and Telephone Number of Person Authorized
to Receive Notices and Communications)
Copy to:
Richard A. Hall, Esq.
Cravath, Swaine & Moore
Worldwide Plaza
825 Eighth Avenue
New York, NY 10019
(212) 474-1000
July 9, 2002
(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), 13d-1(f) or 13d-1(g), check the
following box. [_]
Note: Six copies of this statement, including all exhibits, should be filed
with the Commission. See Rule 240.13d-7 for other parties to whom copies are
to be sent.
*The remainder of this cover page shall be filled out for a reporting person's
initial filing on this form with respect to the subject class of securities,
and for any subsequent amendment containing information which would alter
disclosures provided in a prior cover page.
The information required on the remainder of this cover page shall not be
deemed to be "filed" for the purpose of Section 18 of the Securities Exchange
Act of 1934 ("Act") or otherwise subject to the liabilities of that section of
the Act but shall be subject to all other provisions of the Act (however, see
the Notes).
Page 1 of 43
(1) Names of Reporting Persons
I.R.S. Identification Nos. of Above Persons
Diesel Machinery (BVI) Limited
(2) Check the Appropriate Box if a member of a Group
(a) [ ]
(b) [ ]
(3) SEC Use Only
(4) Source of Funds
AF
(5) Check if Disclosure of Legal Proceedings is Required Pursuant to
Items 2(d)or 2(e) [_]
(6) Citizenship or Place of Organization
British Virgin Islands
Number of Shares Beneficially Owned by Each Reporting Person With:
(7) Sole Voting Power 0 shares
(8) Shared Voting Power 0 shares
(9) Sole Dispositive Power 0 shares
(10) Shared Dispositive Power 0 shares
(11) Aggregate Amount Beneficially Owned
by Each Reporting Person 0 shares
(12) Check if the Aggregate Amount in Row (11) Excludes Certain Shares [ ]
(13) Percent of Class Represented by Amount in Row (11) 0%
(14) Type of Reporting Person (See Instructions)
CO
Page 2 of 43
(1) Names of Reporting Persons
I.R.S. Identification Nos. of Above Persons
Lydale Pte Ltd
(2) Check the Appropriate Box if a member of a Group
(a) [ ]
(b) [ ]
(3) SEC Use Only
(4) Source of Funds
AF
(5) Check if Disclosure of Legal Proceedings is Required Pursuant to
Items 2(d)or 2(e) [_]
(6) Citizenship or Place of Organization
Singapore
Number of Shares Beneficially Owned by Each Reporting Person With:
(7) Sole Voting Power 2,140,900 shares
(8) Shared Voting Power 0 shares
(9) Sole Dispositive Power 2,140,900 shares
(10) Shared Dispositive Power 0 shares
(11) Aggregate Amount Beneficially Owned
by Each Reporting Person 2,140,900 shares
(12) Check if the Aggregate Amount in Row (11) Excludes Certain Shares [ ]
(13) Percent of Class Represented by Amount in Row (11) 6.1%
(14) Type of Reporting Person (See Instructions)
CO
Page 3 of 43
(1) Names of Reporting Persons
I.R.S. Identification Nos. of Above Persons
Flite Technology Industries Ptd Ltd
(2) Check the Appropriate Box if a member of a Group
(a) [ ]
(b) [ ]
(3) SEC Use Only
(4) Source of Funds
AF
(5) Check if Disclosure of Legal Proceedings is Required Pursuant to
Items 2(d)or 2(e) [_]
(6) Citizenship or Place of Organization
Singapore
Number of Shares Beneficially Owned by Each Reporting Person With:
(7) Sole Voting Power 74,026 shares
(8) Shared Voting Power 0 shares
(9) Sole Dispositive Power 74,026 shares
(10) Shared Dispositive Power 0 shares
(11) Aggregate Amount Beneficially Owned
by Each Reporting Person 74,026 shares
(12) Check if the Aggregate Amount in Row (11) Excludes Certain Shares [ ]
(13) Percent of Class Represented by Amount in Row (11) 0.2%
(14) Type of Reporting Person (See Instructions)
CO
Page 4 of 43
(1) Names of Reporting Persons
I.R.S. Identification Nos. of Above Persons
Hong Leong (China) Limited
(2) Check the Appropriate Box if a member of a Group
(a) [ ]
(b) [ ]
(3) SEC Use Only
(4) Source of Funds
AF
(5) Check if Disclosure of Legal Proceedings is Required Pursuant to
Items 2(d)or 2(e) [_]
(6) Citizenship or Place of Organization
Singapore
Number of Shares Beneficially Owned by Each Reporting Person With:
(7) Sole Voting Power 194,805 shares
(8) Shared Voting Power 0 shares
(9) Sole Dispositive Power 194,805 shares
(10) Shared Dispositive Power 0 shares
(11) Aggregate Amount Beneficially Owned
by Each Reporting Person 194,805 shares
(12) Check if the Aggregate Amount in Row (11) Excludes Certain Shares [ ]
(13) Percent of Class Represented by Amount in Row (11) 0.6%
(14) Type of Reporting Person (See Instructions)
CO
Page 5 of 43
(1) Names of Reporting Persons
I.R.S. Identification Nos. of Above Persons
HL Technology Systems Pte Ltd
(2) Check the Appropriate Box if a member of a Group
(a) [ ]
(b) [ ]
(3) SEC Use Only
(4) Source of Funds
AF
(5) Check if Disclosure of Legal Proceedings is Required Pursuant to
Items 2(d)or 2(e) [_]
(6) Citizenship or Place of Organization
Singapore
Number of Shares Beneficially Owned by Each Reporting Person With:
(7) Sole Voting Power 7,831,169 shares
(8) Shared Voting Power 0 shares
(9) Sole Dispositive Power 7,831,169 shares
(10) Shared Dispositive Power 0 shares
(11) Aggregate Amount Beneficially Owned
by Each Reporting Person 7,831,169 shares
(12) Check if the Aggregate Amount in Row (11) Excludes Certain Shares [ ]
(13) Percent of Class Represented by Amount in Row (11) 22.2%*
(14) Type of Reporting Person (See Instructions)
CO
- ----------------------------
* In addition to the 7,831,169 shares of common stock of China Yuchai
International Limited ("CYI") beneficially owned by it, HL Technology Systems
Pte Ltd, after giving effect to the transactions described in this Statement,
also holds a special share of CYI described in Item 6. As discussed in Item 6,
the special share entitles the holder thereof to select a majority of CYI's
board of directors
Page 6 of 43
(1) Names of Reporting Persons
I.R.S. Identification Nos. of Above Persons
Hong Leong Asia Ltd.
(2) Check the Appropriate Box if a member of a Group
(a) [ ]
(b) [ ]
(3) SEC Use Only
(4) Source of Funds
AF
(5) Check if Disclosure of Legal Proceedings is Required Pursuant to
Items 2(d)or 2(e) [_]
(6) Citizenship or Place of Organization
Singapore
Number of Shares Beneficially Owned by Each Reporting Person With:
(7) Sole Voting Power 10,240,900 shares
(8) Shared Voting Power 0 shares
(9) Sole Dispositive Power 10,240,900 shares
(10) Shared Dispositive Power 0 shares
(11) Aggregate Amount Beneficially Owned
by Each Reporting Person 10,240,900 shares
(12) Check if the Aggregate Amount in Row (11) Excludes Certain Shares [ ]
(13) Percent of Class Represented by Amount in Row (11) 29.0%*
(14) Type of Reporting Person (See Instructions)
CO
- ----------------------------
* In addition to the 10,240,900 shares of common stock of CYI
beneficially owned by it, Hong Leong Asia Ltd. also controls a special share
of CYI through HL Technology Systems Pte Ltd. As discussed in Item 6, the
special share entitles the holder thereof to select a majority of CYI's board
of directors.
Page 7 of 43
Introductory Note
On May 17, 2002 and June 10, 2002, the shareholders of DML (as defined
below) took or agreed to take a series of actions affecting the beneficial
ownership of shares of Common Stock (as defined below) of CYI (as defined
below) and the Special Share of CYI described in Item 6 by DML and its
shareholders and other matters related to CYI. These actions have resulted or
will result in the following actions:
(1) the June 17, 2002 transfer by DML of 7,300,000 shares of Common
Stock to Coomber Investments Limited, a British Virgin Islands
company ("Coomber"), in exchange for an equal number of shares of
redeemable common stock of DML;
(2) the July 9, 2002 transfer by DML of 8,100,000 shares of Common Stock
in exchange for an equal number of shares of redeemable common stock
of DML to subsidiaries of HLA (as defined below);
(3) the transfer by DML of the Special Share described in Item 6 to HLT
(as defined below); and
(4) the dissolution of DML.
The statement on Schedule 13D filed on June 19, 1995 by Hong Leong Asia
Ltd., as subsequently amended by Amendment No. 1 thereto filed on February 17,
1998, is hereby amended and restated in its entirety as set forth herein.
The summary descriptions contained in this statement of certain
agreements and documents are qualified in their entirety by reference to the
complete texts of such agreements and documents which are filed as exhibits
hereto and incorporated herein by reference.
ITEM 1. Security and Issuer.
This Statement relates to the common stock, par value US$0.10 per share
(the "Common Stock"), of China Yuchai International Limited, a Bermuda
corporation ("CYI"). The address of CYI's principal executive office is 16
Raffles Quay, #26-00 Hong Leong Building, Singapore 048581.
ITEM 2. Identity and Background.
(a), (b), (c) and (f) This Statement is being filed by Diesel Machinery
(BVI) Limited, a British Virgin Islands company ("DML"), Lydale Pte Ltd, a
Singapore company ("LPL"), Flite Technology Industries Pte Ltd, a Singapore
company ("FTI"), Hong Leong (China) Limited, a Singapore company ("HLC"), HL
Technology Systems Pte Ltd, a Singapore company ("HLT"), and Hong Leong Asia
Ltd., a Singapore company ("HLA") (DML, LPL, FTI, HLC, HLT and HLA being
hereinafter collectively referred to as the "Reporting Persons").
The address of DML's principal business and principal office is 16
Raffles Quay, #26-00 Hong Leong Building, Singapore 048581. LPL, FTI, HLC, HLT
and HLA each has its principal business and principal office at 16 Raffles
Quay, #26-00 Hong Leong Building, Singapore 048581. Each of DML, LPL, FTI and
HLT is an investment holding company. Each of HLC and HLA is a diversified
company that owns companies engaged in a variety of businesses including
consumer appliances, automotive diesel engines, packaging and container
products and trading businesses. HLA's business includes trading of cement,
steel and building materials.
Page 8 of 43
Of the 10,240,900 shares of Common Stock covered by this Statement,
2,140,900 shares are owned of record by LPL, 74,026 shares are owned of record
by FTI, 194,805 shares are owned of record by HLC and 7,831,169 shares are
owned of record by HLT. After giving effect to the Coomber Redemption and the
HLA Redemption, HLT also holds the Special Share described in Item 6. Each of
HLT and FTI is a wholly owned subsidiary of HLC which, in turn, is a
subsidiary of HLA. LPL and HLC are subsidiaries of HLA. After giving effect to
the transfer by DML of 7,300,000 shares of Common Stock to Coomber (the
"Coomber Redemption") in exchange for an equal number of shares of redeemable
common stock of DML and the transfer by DML of (a) 8,100,000 shares of Common
Stock to subsidiaries of HLA (the "HLA Redemption") in exchange for an equal
number of shares of redeemable common stock of DML and (b) the Special Share
described in Item 6, DML holds no Common Stock. HLA is an indirect subsidiary
of Hong Leong Investment Holdings Pte. Ltd., a Singapore Company ("HLIH").
HLIH, in turn, is controlled by certain members of the Kwek family of
Singapore and Malaysia. Certain Kwek family members own 51.0% of the capital
stock of HLIH directly, and the remaining 49.0% of the capital stock of HLIH
is owned by Kwek Holdings Pte Ltd, a Singapore company that is owned and
controlled by certain Kwek family members. HLIH, which is the primary holding
company of the Kwek family, owns interests in a wide variety of companies,
including companies engaged in real estate development, hotel ownership and
management, industrial and consumer finance, trading and manufacturing and
information technology services.
Set forth on Schedules I and II is the information required by General
Instruction C to Schedule 13D, which schedules are incorporated herein by
reference.
(d) and (e) During the last five years, none of the Reporting Persons
nor, to the knowledge of each of them, any of the persons listed on Schedules
I or II with respect to such Reporting Person has been:
(1) convicted in a criminal proceeding (excluding traffic violations or
similar misdemeanors); or
(2) a party to a civil proceeding of a judicial or administrative body of
competent jurisdiction and, as a result of such proceeding, was or is
subject to a judgment, decree or final order enjoining future violations
of, or prohibiting or mandating activities subject to, federal or state
securities laws or finding any violation with respect to such laws.
ITEM 3. Source and Amount of Funds or Other Consideration
Of the 10,240,900 shares of Common Stock covered by this Statement,
2,140,900 shares are owned of record by LPL, 74,026 shares are owned of record
by FTI, 194,805 shares are owned of record by HLC and 7,831,169 shares are
owned of record by HLT. On June 9, 1995, HLA completed a series of
transactions pursuant to separate purchase agreements pursuant to which it
acquired an aggregate of 1,115,000 shares of Common Stock from various
shareholders and acquired an additional aggregate of 1,025,900 shares of
Common Stock in the open market during the period from January 1, 2002 to July
11, 2002. All such shares were acquired with internally generated funds. The
8,100,000 shares of Common Stock owned of record by HLT, HLC and FTI were
acquired from DML on July 9, 2002 pursuant to the HLA Redemption. Such shares
were originally acquired by HLA and its subsidiaries with
Page 9 of 43
internally generated funds and contributed to DML in exchange for an equal
number of shares of redeemable common stock of DML.
ITEM 4. Purpose of the Transaction
Of the 10,240,900 shares of Common Stock covered by this Statement,
2,140,900 shares are owned of record by LPL, 74,026 shares are owned of record
by FTI, 194,805 shares are owned of record by HLC and 7,831,169 shares are
owned of record by HLT. After giving effect to the Coomber Redemption and the
HLA Redemption, HLT also holds the Special Share described in Item 6. All
shares of Common Stock beneficially owned by HLA are held by HLA for
investment purposes. Pursuant to arrangements described in Item 6, HLA
controls CYI and participates in the management of CYI and CYI's
majority-owned subsidiary, Guangxi Yuchai Machinery Company Limited, a
Sino-foreign joint stock company ("Yuchai"). HLA intends continuously to
review all aspects of its investment in CYI, including CYI's business,
operations, financial results and condition and prospects, the market price of
the Common Stock, conditions in the securities market generally, and general
economic and industry conditions. Based on the continuing review of these and
other relevant factors, HLA may (i) acquire additional shares of Common Stock,
(ii) dispose of any or all of the shares of Common Stock it currently holds,
or (iii) otherwise change its intention with respect to any or all of the
matters referred to in this Item 4.
Except as set forth in this Statement, none of the Reporting Persons nor,
to the knowledge of each of them, any of the persons listed on Schedules I or
II with respect to such Reporting Person has any other present plans or
proposals which would result in or relate to:
(a) the acquisition by any person of additional securities of CYI, or the
disposition of securities of CYI;
(b) an extraordinary corporate transaction, such as a merger,
reorganization or liquidation, involving CYI or any of its subsidiaries;
(c) a sale or transfer of a material amount of assets of CYI or any of
its subsidiaries;
(d) any change in the present board of directors or management of CYI,
including any plans or proposals to change the number or term of
directors or to fill any existing vacancies on the board;
(e) any material change in the present capitalization or dividend policy
of CYI;
(f) any other material change in CYI's business or corporate structure;
(g) changes in CYI's charter, by-laws or instruments corresponding
thereto or other actions that may impede the acquisition of control of
CYI by any person;
(h) causing a class of securities of CYI to be delisted from a national
securities exchange or to cease to be authorized to be quoted in an
inter-dealer quotation system of a registered national securities
association;
Page 10 of 43
(i) a class of equity securities of CYI becoming eligible for termination
of registration pursuant to Section 12(g)(4) of the Securities Exchange
Act of 1934; or
(j) any action similar to any of those enumerated above.
ITEM 5. Interest in Securities of the Issuer
(a) and (b) As of the date hereof, LPL owns of record 2,140,900 shares of
Common Stock, FTI owns of record 74,026 shares of Common Stock, HLC owns of
record 194,805 shares of Common Stock, HLT owns of record 7,831,169 shares of
Common Stock and DML no longer owns of record any shares of Common Stock.
After giving effect to the Coomber Redemption and the HLA Redemption, HLT also
holds the Special Share described in Item 6. The 10,240,900 shares of Common
Stock owned by the Reporting Persons represent approximately 29.0% of the
35,340,000 outstanding shares of Common Stock, based on the number of
outstanding shares of Common Stock reported in CYI's 2001 Annual Report on
Form 20-F, filed with the Securities and Exchange Commission on June 25, 2002.
Shares held of record by DML. Prior to the Coomber Redemption and HLA
Redemption, DML held 8,100,000 shares of Common Stock contributed by HLA's
subsidiaries and 7,300,000 shares of Common Stock contributed by Coomber, and
each of HLA's subsidiaries and Coomber owned shares of redeemable common stock
of DML in an amount corresponding to the percentage of DML's total ownership
of Common Stock contributed by the said parties. Pursuant to the Coomber
Redemption, DML transferred 7,300,000 shares of Common Stock to Coomber in
exchange for an equal number of shares of redeemable common stock of DML.
Pursuant to the HLA Redemption, DML (a) transferred 8,100,000 shares of Common
Stock to FTI, HLC and HLT in exchange for an equal number of shares of
redeemable common stock of DML and (b) is transferring the Special Share
described in Item 6 to HLT. After the Coomber Redemption and HLA Redemption
have been given effect, DML no longer has voting or dispositive power over any
shares of Common Stock.
Shares held of record by LPL. LPL (and HLA by virtue of its ownership of
LPL) has sole voting and dispositive power over the 2,140,900 shares of Common
Stock owned by LPL.
Shares held of record by FTI. After the HLA Redemption, FTI (and HLA by
virtue of its ownership of FTI through HLC) has sole voting and dispositive
power over the 74,026 shares of Common Stock owned by FTI.
Shares held of record by HLC. After the HLA Redemption, HLC (and HLA by
virtue of its ownership of HLC) has sole voting and dispositive power over the
194,805 shares of Common Stock owned by HLC.
Shares held of record by HLT. After the HLA Redemption, HLT (and HLA by
virtue of its ownership of HLT through HLC) has sole voting and dispositive
power over the 7,831,169 shares of Common Stock owned by HLT and the Special
Share described in Item 6.
HLIH, by virtue of its deemed interest in HLA, may be deemed to have the
power to vote or direct the voting and to dispose or direct the disposition of
the shares of Common Stock beneficially owned by the Reporting Persons,
although HLIH disclaims beneficial ownership of such shares.
Page 11 of 43
(c) On June 17, 2002, DML transferred 7,300,000 shares of Common Stock to
Coomber in exchange for an equal number of shares of redeemable common stock
of DML. On July 9, 2002, DML transferred 8,100,000 shares of Common Stock to
FTI, HLC and HLT in exchange for an equal number of shares of redeemable
common stock of DML. During the period from January 1, 2002 to July 11, 2002,
LPL aquired 1,025,900 shares of Common Stock in the open market.
Except for the transactions described above, none of the Reporting
Persons nor, to any of such Reporting Persons' knowledge, any of the persons
listed on Schedules I or II has effected any transaction in shares of Common
Stock during the past 60 days.
(d) Not applicable.
(e) On July 9, 2002, DML ceased to be the beneficial owner of more than
five percent of the Common Stock.
ITEM 6. Contracts, Arrangements, Understandings, or Relationships with Respect
to the Securities of the Issuer
HLA, DML, Coomber, China Everbright Holdings Company Limited ("EB
Holdings"), The Cathay Investment Fund Limited ("Cathay"), GS Capital Partners
L.P. ("GSCP"), the owners of the shares formerly held by Sun Yuan Overseas
(BVI) Limited (the "Sun Yuan Shareholders") and CYI have entered into a
Shareholders Agreement (the "CYI Shareholders Agreement") relating to CYI,
under which such shareholders have agreed, among other things, to vote their
shares of Common Stock to elect a board of directors with a specified
composition. Pursuant to the CYI Shareholders Agreement, a special share of
CYI, par value US$0.10 per share (the "Special Share"), was issued to DML. The
Special Share entitles the holder thereof to select a majority of CYI's board
of directors, so long as either (i) DML holds the Special Share and is
controlled by HLA and/or EB Holdings (and their respective affiliates) or (ii)
HLA or EB Holdings (or their respective affiliates) holds the Special Share
and owns a specified minimum number of shares of CYI. After giving effect to
the Coomber Redemption and the HLA Redemption, HLA (through HLT) controls the
Special Share.
HLA, EB Holdings and DML are parties to a Subscription and Shareholders
Agreement (the "DML Shareholders Agreement") dated as of November 9, 1994
relating to the shares of Common Stock and the Special Share held by DML. On
January 21, 2002, HLA and EB Holdings entered into a Supplemental Subscription
and Shareholders Agreement. On May 17, 2002, HLA and EB Holdings entered into
a Second Supplemental Subscription and Shareholders Agreement, and EB Holdings
and Coomber delivered a notice to DML, FTI, HLC, HLT and HLA requesting the
Coomber Redemption. Pursuant to the terms of the CYI Shareholders Agreement
and the DML Shareholders Agreement (as supplemented), these actions have
resulted or will result in:
(1) the transfer on June 17, 2002 by DML of 7,300,000 shares of Common
Stock to Coomber in exchange for an equal number of shares of
redeemable common stock of DML;
(2) the transfer on July 9, 2002 by DML of 8,100,000 shares of Common
Stock to subsidiaries of HLA in exchange for an equal number of
shares of redeemable common stock of DML;
(3) the transfer by DML of the Special Share to HLT; and
Page 12 of 43
(4) the dissolution of DML.
Following the dissolution of DML, HLA, EB Holdings and Coomber will
continue to have the CYI board of directors designation rights set forth in
the CYI Shareholders Agreement.
Pursuant to a Registration Rights Agreement (the "Registration Rights
Agreement"), CYI has granted two "demand" registration rights to each of HLA,
Coomber, Cathay, GSCP and the Sun Yuan Shareholders requiring CYI, subject to
certain conditions, to use its best efforts to prepare and file a registration
statement on behalf of such shareholder under the Securities Act of 1933, as
amended, and to use its best efforts to qualify the shares of Common Stock for
offer and sale under any applicable U.S. state securities laws. Expenses
incurred in connection with one demand registration for each such shareholder
will be borne by CYI, and CYI and CYI's majority-owned subsidiary, Guangxi
Yuchai Machinery Company Limited, a Sino foreign joint stock company of the
People's Republic of China, will be required to indemnify the underwriters in
connection with any demand registration. The Registration Rights Agreement
also grants each such shareholder certain "piggyback" registration rights
entitling each shareholder to sell Common Stock in any registered offerings of
equity securities of CYI, for the account of CYI or on behalf of its security
holders.
Except as described in this Statement and in the documents referred to
above, there exist no contracts, arrangements, understandings or relationships
(legal or otherwise) among the Reporting Persons or, to the knowledge of each
of them, any of the persons listed on Schedule I or II with respect to such
Reporting Person with respect to any of the securities of CYI, including, but
not limited to, the transfer or voting of any of the shares of Common Stock,
finder's fees, joint ventures, loan or option agreements, puts or calls,
guarantees of profits, divisions of profits or loss, or the giving or
withholding of proxies.
ITEM 7. Material to be Filed as Exhibits
1. Amended and Restated Shareholders Agreement dated as of November 9,
1994, among The Cathay Investment Fund, Limited, GS Capital Partners L.P., HL
Technology Systems Pte Ltd, Hong Leong Asia Ltd., Coomber Investments Limited,
China Everbright Holdings Company Limited, Diesel Machinery (BVI) Limited,
owners of the shares formerly held by Sun Yuan Overseas (BVI) Ltd. and China
Yuchai International Limited.
2. Subscription and Shareholders Agreement dated as of November 9, 1994,
among Diesel Machinery (BVI) Limited, Hong Leong Asia Ltd. and China
Everbright Holdings Company Limited.
3. Letter Agreement dated December 9, 1994, among Coomber Investments
Limited, Diesel Machinery (BVI) Limited, Hong Leong Asia Ltd. and China
Everbright Holdings Company Limited.
4. Letter Agreement dated January 1995, among China Everbright
International Limited, Hong Leong Asia Ltd., China Everbright Holdings Company
Limited, The Cathay Investment Fund, Limited, GS Capital Partners L.P., owners
of the shares formerly held by Sun Yuan Overseas (BVI) Ltd., China Yuchai
International Limited and Diesel Machinery (BVI) Limited.
5. Amended and Restated Registration Rights Agreement of China Yuchai
International Limited dated as of November 9, 1994, among The
Page 13 of 43
Cathay Investment Fund, Limited, GS Capital Partners L.P., HL Technology
Systems Pte Ltd, Hong Leong Asia Ltd., Coomber Investments Limited, China
Everbright Holdings Company Limited, Diesel Machinery (BVI) Limited, owners of
the shares formerly held by Sun Yuan Overseas (BVI) Ltd., China Yuchai
International Limited and Guangxi Yuchai Machinery Company Limited.
6. Lockup Agreement dated December 12, 1994, among Bear, Stearns & Co.
Inc., PaineWebber Incorporated, Bear, Stearns International Limited,
PaineWebber International (U.K.) Ltd. and Diesel Machinery (BVI) Limited.
7. Lockup Agreement dated December 12, 1994, among Bear, Stearns & Co.
Inc., PaineWebber Incorporated, Bear, Stearns International Limited,
PaineWebber International (U.K.) Ltd. and Hong Leong Asia Ltd.
8. Instrument of Transfer dated November 21, 1997 between Flite
Technology Industries Pte Ltd and Hong Leong Asia Ltd.
9. Instrument of Transfer dated November 21, 1997 between Hong Leong
International (Hong Kong) Limited and Hong Leong Asia Ltd.
10. Instrument of Transfer dated November 21, 1997 between HL Technology
Systems Pte Ltd and Hong Leong Asia Ltd.
11. Assignment and Deed of Adherence dated November, 1997 among Hong
Leong Asia Ltd., Flite Technology Industries Pte Ltd, Hong Leong International
(Hong Kong) Limited, HL Technology Systems Pte Ltd and Hong Leong Corporation
Limited.
12. Supplemental Subscription and Shareholders Agreement dated January
21, 2002 between China Everbright Holdings Company Limited and Hong Leong Asia
Ltd.
13. Second Supplemental Subscription and Shareholders Agreement dated May
17, 2002 between China Everbright Holdings Company Limited and Hong Leong Asia
Ltd.
Page 14 of 43
SIGNATURES
After reasonable inquiry and to the best of his or her knowledge and
belief, each of the undersigned certifies that the information in this
statement is true, complete and correct.
Dated: July 19, 2002
HONG LEONG ASIA LTD.
By: /s/ Wrixon Frank Gasteen
---------------------------
Name: Wrixon Frank Gasteen
Title: Director and Chief Executive
Officer
HL TECHNOLOGY SYSTEMS PTE LTD
By: /s/ Philip Ting Sii Tien
---------------------------
Name: Philip Ting Sii Tien
Title: Director
HONG LEONG (CHINA) LIMITED
By: /s/ Kwek Leng Peck
---------------------------
Name: Kwek Leng Peck
Title: Director
FLITE TECHNOLOGY INDUSTRIES PTE LTD
By: /s/ Philip Ting Sii Tien
---------------------------
Name: Philip Ting Sii Tien
Title: Director
Page 15 of 43
LYDALE PTE LTD
By: /s/ Wrixon Frank Gasteen
---------------------------
Name: Wrixon Frank Gasteen
Title: Director
DIESEL MACHINERY (BVI) LIMITED
By: /s/ Kwek Leng Peck
---------------------------
Name: Kwek Leng Peck
Title: Director
Page 16 of 43
I-1
SCHEDULE I
DIRECTORS AND EXECUTIVE OFFICERS
OF DIESEL MACHINERY (BVI) LIMITED
Principal
Name Business Address Occupation Citizenship
Directors
Kwek Leng Peck 16 Raffles Quay Company Director Singapore
#26-00 Hong Leong
Building
Singapore 048581
Wong Hong Ren 9 Raffles Place #61-00 Company Director Singapore
Republic Plaza
Singapore 048619
Yang Bin 48/F Far East Finance Company Director China
Center
16 Harcourt Road
Hong Kong
Yang Yongsheng 48/F Far East Finance Company Director China
Center
16 Harcourt Road
Hong Kong
Executive Officers
Codan Managements Romasco Place Secretary Not
(BVI) Limited Wickhams Cay 1 Applicable
P.O. Box 3140
Road Town
Tortola, British Virgin
Islands
Page 17 of 43
I-2
DIRECTORS AND EXECUTIVE OFFICERS
OF LYDALE PTE LTD
Principal
Name Business Address Occupation Citizenship
Directors
Kwek Leng Peck 16 Raffles Quay #26-00 Company Director Singapore
Hong Leong
Building
Singapore 048581
Wrixon Frank Gasteen 16 Raffles Quay #26-00 Chief Executive Australia
Hong Leong Building Officer
Singapore 048581
Executive Officers
Nil
Page 18 of 43
I-3
DIRECTORS AND EXECUTIVE
OFFICERS OF FLITE TECHNOLOGY INDUSTRIES PTE LTD
Principal
Name Business Address Occupation Citizenship
Directors
Kwek Leng Peck 16 Raffles Quay #26-00 Company Director Singapore
Hong Leong Building
Singapore 048581
Philip Ting Sii Tien 16 Raffles Quay #26-00 Chief Financial Malaysia/
Hong Leong Building Officer Singapore
Singapore 048581 Permanent
Resident
Executive Officers
Nil
Page 19 of 43
I-4
DIRECTORS AND EXECUTIVE
OFFICERS OF HONG LEONG (CHINA) LIMITED
Principal
Name Business Address Occupation Citizenship
Directors
Kwek Leng Beng 9 Raffles Place #61-00 Company Director Singapore
Republic Plaza
Singapore 048619
Kwek Leng Peck 16 Raffles Quay #26-00 Company Director Singapore
Hong Leong Building
Singapore 048581
Tan I Tong 16 Raffles Quay #01-05 Company Director Singapore
Hong Leong Building
Singapore 048581
Kwek Leng Joo 9 Raffles Place #36-00 Company Director Singapore
Republic Plaza
Singapore 048619
Kwek Leng Kee 16 Raffles Quay #25-00 Company Director Singapore
Hong Leong Building
Singapore 048581
Kwek Leng Keow 16 Raffles Quay #26-00 Company Director Singapore
Hong Leong Building
Singapore 048581
Executive Officers
Nil
Page 20 of 43
I-5
DIRECTORS AND EXECUTIVE
OFFICERS OF HL TECHNOLOGY SYSTEMS PTE LTD
Principal
Name Business Address Occupation Citizenship
Directors
Kwek Leng Peck 16 Raffles Quay #26-00 Company Director Singapore
Hong Leong Building
Singapore 048581
Philip Ting Sii Tien 16 Raffles Quay #26-00 Chief Financial Malaysia/
Hong Leong Building Officer Singapore
Singapore 048581 Permanent
Resident
Executive Officers
Nil
Page 21 of 43
I-6
DIRECTORS AND EXECUTIVE OFFICERS
OF HONG LEONG ASIA LTD.
Principal
Name Business Address Occupation Citizenship
Directors
Kwek Leng Beng 9 Raffles Place #61-00 Company Director/ Singapore
Republic Plaza Chairman
Singapore 048619
Wrixon Frank Gasteen 16 Raffles Quay #26-00 Chief Executive Australia
Hong Leong Building Officer
Singapore 048581
Kwek Leng Peck 16 Raffles Quay #26-00 Company Director Singapore
Hong Leong Building
Singapore 048581
Tan I Tong 16 Raffles Quay #01-05 Company Director Singapore
Hong Leong Building
Singapore 048581
Robin Ian Rawlings 16 Raffles Quay #26-00 Company Director Singapore
Hong Leong Building Permanent
Singapore 048581 Resident
Qiang Chang Sun 12/F St. George's Managing China
Building Director, E.M.
2 Ice House Street Warburg, Pincus &
Hong Kong Co., LLC
Ernest Colin Lee 9 Gleneagle Street Consultant Australia
Kenmore Qld 4069,
Australia
Executive Officers
Philip Ting 16 Raffles Quay #26-00 Chief Financial Malaysia/
Sii Tien Hong Leong Building Officer Singapore
Singapore 048581 Permanent
Resident
Page 22 of 43
I-7
Controlling Persons
Hong Leong Investment 16 Raffles Quay #26-00 Not Applicable Not Applicable
Holdings Hong Leong Building
Pte. Ltd Singapore 048581
Page 23 of 43
II-1
SCHEDULE II
CONTROLLING PERSONS AND
DIRECTORS AND EXECUTIVE OFFICERS
OF HONG LEONG INVESTMENT HOLDINGS PTE. LTD.
Principal
Name Business Address Occupation Citizenship
Directors
Kwek Leng Beng 9 Raffles Place #61-00 Company Singapore
Republic Plaza Director/
Singapore 048619 Executive
Chairman
Tan Sri Quek
Leng Chan Level 10, Wisma Hong Company Director Malaysia
Leong
18 Jalan Perak
50450 Kuala Lumpur
Malaysia
Kwek Leng Joo 9 Raffles Place #36-00 Company Director Singapore
Republic Plaza
Singapore 048619
Kwek Leng Kee 16 Raffles Quay #25-00 Company Director Singapore
Hong Leong
Building
Singapore 048581
Kwek Leng Peck 16 Raffles Quay #26-00 Company Director Singapore
Hong Leong
Building
Singapore 048581
Quek Leng Chye 16 Raffles Quay #25-00 Company Director Singapore
Hong Leong Building
Singapore 048581
Kwek Leng Keow 16 Raffles Quay #26-00 Company Director Singapore
Hong Leong Building
Singapore 048581
Quek Bee Heong 16 Raffles Quay #14-01 Advocate & Singapore
Hong Leong Solicitor
Building
Singapore 048581
Kwek Geok Luan c/o 9 Raffles Place Company Director Singapore
#61-00
Republic Plaza
Singapore 048619
Kwek Lay Har 16 Raffles Quay #26-00 Company Director Singapore
(Alternate Director Hong Leong
to Kwek Lend Keow) Building
Singapore 048581
Executive Officers
Patricia Yeo 9 Raffles Place #61-00 Group Financial Singapore
Wei Ping Republic Plaza Controller
Singapore 048619
Page 24 of 43
II-2
Principal
Name Business Address Occupation Citizenship
- ---- ---------------- ---------- -----------
Controlling Persons
- -------------------
Kwek Holdings Pte. Ltd. 16 Raffles Quay Not Not
#26-00 Hong Leong Applicable Applicable
Building
Singapore 048581
Page 25 of 43
II-3
DIRECTORS AND EXECUTIVE OFFICERS
OF KWEK HOLDINGS PTE LTD
Principal
Name Business Address Occupation Citizenship
- ---- ---------------- ---------- -----------
Directors
- ---------
Kwek Leng Beng 9 Raffles Place #61-00 Company Director Singapore
Republic Plaza
Singapore 048619
Kwek Geok Luan c/o 9 Raffles Place Company Director Singapore
#61-00
Republic Plaza
Singapore 048619
Kwek Leng Joo 9 Raffles Place #36-00 Company Director Singapore
Republic
Plaza
Singapore 048619
Kwek Leng Peck 16 Raffles Quay #26-00 Company Director Singapore
Hong Leong Building
Singapore 048581
Kwek Lay Har 16 Raffles Quay #26-00 Company Director Singapore
Hong Leong Building
Singapore 048581
Executive Officers
- ------------------
Kwek Leng Joo 9 Raffles Place #36-00 Company Director/ Singapore
Republic Plaza Managing
Singapore 048619 Director
Kwek Leng Peck 16 Raffles Quay #26-00 Company Director/ Singapore
Hong Leong Building Managing
Singapore 048581 Director
Page 26 of 43
INDEX OF EXHIBITS
Page Number in
Exhibit Sequentially Numbered
Number Title Statement
1. Amended and Restated Shareholders Agreement dated as of *
November 9, 1994, among The Cathay Investment Fund, Limited, GS
Capital Partners L.P., HL Technology Systems Pte Ltd, Hong Leong
Asia Ltd., Coomber Investments Limited, China Everbright
Holdings Company Limited, Diesel Machinery (BVI) Limited, owners
of the shares formerly held by Sun Yuan Overseas (BVI) Ltd. and
China Yuchai International Limited.
2. Subscription and Shareholders Agreement dated as of November 9, *
1994, among Diesel Machinery (BVI) Limited, Hong Leong Asia Ltd.
and China Everbright Holdings Company Limited.
3. Letter Agreement dated December 9, 1994, among Coomber *
Investments Limited, Diesel Machinery (BVI) Limited, Hong Leong
Asia Ltd. and China Everbright Holdings Company Limited.
4. Letter Agreement dated January 1995, among China Everbright *
International Limited, Hong Leong Asia Ltd., China Everbright
Holdings Company Limited, The Cathay Investment Fund, Limited,
GS Capital Partners L.P., owners of the shares formerly held by
Sun Yuan Overseas (BVI) Ltd., China Yuchai International Limited
and Diesel Machinery (BVI) Limited.
5. Amended and Restated Registration Rights Agreement of China *
Yuchai International Limited dated as of November 9, 1994, among
The Cathay Investment Fund, Limited, GS Capital Partners L.P.,
HL Technology Systems Pte Ltd, Hong Leong Asia Ltd., Coomber
Investments Limited, China Everbright Holdings Company Limited,
Diesel Machinery (BVI) Limited, owners of the shares formerly
held by Sun Yuan Overseas (BVI) Ltd., China Yuchai International
Limited and Guangxi Yuchai Machinery Company Limited.
6. Lockup Agreement dated December 12, 1994, among Bear, Stearns & *
Co. Inc., PaineWebber Incorporated, Bear, Stearns International
Limited, PaineWebber International (U.K.) Ltd. and Diesel
Machinery (BVI) Limited.
Page 27 of 43
Page Number in
Exhibit Sequentially Numbered
Number Title Statement
7. Lockup Agreement dated December 12, 1994, among Bear, Stearns & *
Co. Inc., PaineWebber Incorporated, Bear, Stearns International
Limited, PaineWebber International (U.K.) Ltd. and Hong Leong
Asia Ltd.
8. Instrument of Transfer dated November 21, 1997 between Flite *
Technology Industries Pte Ltd and Hong Leong Asia Ltd.
9. Instrument of Transfer dated November 21, 1997 between Hong *
Leong International (Hong Kong) Limited and Hong Leong Asia Ltd.
10. Instrument of Transfer dated November 21, 1997 between HL *
Technology Systems Pte Ltd and Hong Leong Asia Ltd.
11. Assignment and Deed of Adherence dated November 19, 1997 among *
Hong Leong Asia Ltd., Flite Technology Industries Pte Ltd, Hong
Leong International (Hong Kong) Limited, HL Technology Systems
Pte Ltd and Hong Leong Corporation Limited.
12. Supplemental Subscription and Shareholders Agreement dated 29
January 21, 2002 between China Everbright Holdings Company
Limited and Hong Leong Asia Ltd.
13. Second Supplemental Subscription and Shareholders Agreement, 37
dated May 17, 2002 between China Everbright Holdings Company
Limited and Hong Leong Asia Ltd.
_____________
* Previously filed.
Page 28 of 43
DATED THIS 21st DAY OF JANUARY 2002
BETWEEN
CHINA EVERBRIGHT HOLDINGS COMPANY LIMITED
AND
HONG LEONG ASIA LTD.
________________________________________________________________________________
SUPPLEMENTAL SUBSCRIPTION AND SHAREHOLDERS AGREEMENT
________________________________________________________________________________
Page 29 of 43
TABLE OF CONTENTS
Index Page No.
----- --------
1 INTERPRETATION 3
AMENDMENTS TO THE SUBSCRIPTION AND
2 SHAREHOLDERS AGREEMENT 3-4
3 REPRESENTATIONS AND WARRANTIES 4-5
4 INCORPORATION 5
5 EXPENSES AND STAMP DUTY 5
6 CONFIRMATION 5
7 GOVERNING LAW 5
SCHEDULE-CONDITIONS PRECEDENT 7
Page 30 of 43
THIS SUPPLEMENTAL SUBSCRIPTION AND SHAREHOLDERS AGREEMENT is made on 21st
January 2002 BETWEEN CHINA EVERBRIGHT HOLDINGS COMPANY LIMITED (Company
Registration No: 124247) a company duly established and existing under the
laws of Hong Kong having its registered office at 48/F Far East Finance Centre
16 Harcourt Road Hong Kong (hereinafter referred to as "EB Holdings") of the
first part AND HONG LEONG ASIA LTD (Company Registration No. 196300306G) a
company duly established and existing under the laws of Singapore having its
registered office at 36 Robinson Road #04-01 City House Singapore 068877
(hereinafter referred to as "HLA") of the other part.
WHEREAS:
A This Supplemental Subscription and Shareholders Agreement (hereinafter
referred to as the "Supplemental Agreement") is supplemental to the
Subscription and Shareholders Agreement dated 9 November 1994 made
between the Parties.
B EB Holdings has requested and HLA has agreed to amend the provisions
governing the termination of the Subscription and Shareholders Agreement
as spelt out in the Subscription and Shareholders Agreement.
C Pursuant to the aforesaid the Parties have agreed subject to the terms
and conditions set out in this Supplemental Agreement and the
consequential amendments to the Subscription and Shareholders Agreement
to facilitate the understandings reached between the Parties in the
manner and to the extent as hereinafter set forth.
NOW IT IS HEREBY AGREED AS FOLLOWS:
1. Interpretation
1.1 In this Supplemental Agreement except where the context otherwise
requires: -
"Effective Date" has the meaning ascribed to it in Clause 2 of this
Supplemental Agreement.
1.2 All terms and references used in this Supplemental Agreement and
which are defined or construed in the Subscription and Shareholders
Agreement but are not defined or construed in this Supplemental
Agreement shall have the same meaning and construction in this
Supplemental Agreement.
Page 31 of 43
2
1.3 The headings in this Supplemental Agreement are inserted for
convenience only and shall be ignored in construing this
Supplemental Agreement. Unless otherwise stated references to the
"Clauses" and "Schedules" are to be construed as reference to the
clauses of and the schedule to this Supplemental Agreement.
2. AMENDMENTS TO THE SUBSCRIPTION AND SHAREHOLDERS AGREEMENT
2.1 EB Holdings and HLA as Parties to this Supplemental Agreement agree
that with effect from the date of this Supplemental Agreement (or
such other date as may be agreed between EB Holdings and HLA
(hereinafter referred to as the "Effective Date")) Article V Section
5.01 shall be amended as follows:
"Section 5.01 Termination. Either HLA or EB Holdings may at any
time, upon thirty (30) days' prior written notice to the other
party, elect to dissolve DML. If such notice shall have been
given by HLA, then the Special Share shall be transferred to EB
Holdings upon the dissolution of DML; and if such notice shall
be given by EB Holdings, then the Special Share shall be
transferred to HLA upon the dissolution of DML; and in either
case DML's rights under the CYI Shareholders Agreement to
designate two additional CYI directors and two additional
Yuchai directors will upon dissolution be assigned to the
Shareholder that does not receive the Special Share. The
foregoing sets forth the Shareholders' agreement for purposes
of Article 115 of DML's Memorandum and Articles of
Association.".
Provided that (i) on or before the Effective Date each of EB
Holdings and HLA have received from the other (in the form and
substance satisfactory to it) each of the documents specified in the
Schedule to this Supplemental Agreement and (ii) on the Effective
Date the Representations and Warranties in Clause 3 of this
Supplemental Agreement are true and correct in all respects as of
such date as if made on such date with respect to the facts and
circumstances existing at each date.
2.2 Each of EB Holdings and HLA hereby agree to take all necessary steps
as soon as possible after the Effective Date to amend or to cause to
be amended Article 115 of the Articles of Association of DML to
reflect the
Page 32 of 43
3
amendment to Section 5.01 of the Subscription and Shareholders
Agreement as set out in Clause 2.1 of this Agreement by deleting the
words "six months" in Article 115 and replacing the same with the
words "thirty (30) days".
3. REPRESENTATIONS AND WARRANTIES
Each of EB Holdings and HLA represents and warrants to and for the
benefit of the other as a Party to this Supplemental Agreement that:
-
3.1 all actions conditions and things required to be taken
fulfilled and done by or on behalf of EB Holdings and HLA as
the case may be (including the obtaining of any necessary
consents) in order (a) to enable it lawfully to enter into
exercise its rights and perform and comply with its obligations
under this Supplemental Agreement and (b) to make this
Supplemental Agreement admissible in evidence in the courts of
Hong Kong Special Administrative Region of the People's
Republic of China Singapore and New York have been taken
fulfilled and done;
3.2 its entry into exercise of its rights and/or performance of or
compliance with its obligations under this Supplemental
Agreement do not and will not violate in any material respect
(a) any law to which it is subject (b) its Articles of
Association or (c) any agreement to which it is a party or
which is binding on it or its assets;
3.3 this Supplemental Agreement and the Subscription and
Shareholders Agreement constitute its valid binding and
enforceable obligations; and
3.4 it is not in breach of any of its obligations under the
Subscription and Shareholders Agreement.
4. Incorporation
4.1 The Subscription and Shareholders Agreement and this
Supplemental Agreement shall be read and construed as one
document and this Supplemental Agreement shall be considered as
part of the Subscription and Shareholders Agreement and without
prejudice to the generality of the foregoing where the context
so allows references in the Subscription and Shareholders
Agreement to "this Agreement "howsoever expressed shall be read
and construed as references to the Subscription and
Page 33 of 43
4
Shareholders Agreement as amended modified or supplemented by
this Supplemental Agreement.
4.2 Except to the extent expressly amended by the provisions of
this Supplemental Agreement the terms and conditions of the
Subscription and Shareholders Agreement and all other
instruments and agreements executed delivered or entered into
thereunder or pursuant thereto are hereby confirmed and shall
remain in full force and effect,
5. EXPENSES AND STAMP DUTY
Each of HLA and EB Holdings shall pay promptly and in any event
before any penalty becomes payable any stamp goods and services
value added documentary or similar duty or tax payable in connection
with its entry into performance enforcement and admissibility in
evidence of this Supplemental Agreement and shall indemnify the
other against any liability with respect to or resulting from any
delay in paying or omission to pay any such tax.
6. CONFIRMATION
Each of HLA and EB Holdings hereby irrevocably and unconditionally
confirms that its obligations under the Subscription and
Shareholders Agreement to which it is a party remains in full force
and effect and is binding on it and shall continue in full force and
effect and be binding on it notwithstanding the amendments to the
Subscription and Shareholders Agreement in the manner provided in
this Supplemental Agreement.
7. GOVERNING LAW
This Supplemental Agreement shall be governed by and
construed in accordance with the laws of the State of New
York and the Parties hereto irrevocably submit to the
non-exclusive jurisdiction of the Hong Kong Singapore and
New York Courts in relation to any proceedings arising
out of or in connection with this Supplemental Agreement.
Page 34 of 43
5
IN WITNESS WHEREOF this Supplemental Agreement has been entered into on the
date hereinbefore first stated.
SIGNED by Mr. Wrixon Frank Gasteen )
Passport No. L1485822 )
for and on behalf of )
HONG LEONG ASIA LTD. )
in the presence of: - )
SIGNED by Mr. Yang Yongsheng )
Passport No. P4907054 ) for & on behalf of
for and on behalf of )
CHINA EVERBRIGHT HOLDINGS ) CHINA EVERBRIGHT
HOLDINGS CO. LTD.
COMPANY LIMITED )
in the presence of: )
----------------------
Autorized Signature
Name: Chan YukYee
Add: Rm 3703 Far East Finance
Centre, HK
Page 35 of 43
6
SCHEDULE
CONDITIONS PRECEDENT
1. A copy certified true by an authorised officer of each of EB Holdings
and HLA as being in full force and effect on the date thereof of : -
(1) all actions required to be taken by each of EB Holdings and HLA
(a) authorising the entry into of this Supplemental Agreement
and (b) authorising appropriate persons to execute and deliver
this Supplemental Agreement on their respective behalves and to
take any action contemplated in this Supplemental Agreement;
and
(2) all necessary consents required by each of EB
Holdings and HLA for the execution delivery and
performance of this Supplemental Agreement or if no
such consents are necessary a certificate to that
effect from a person duly authorised by each of EB
Holdings and HLA so to certify.
2. Specimen signatures of the respective persons referred to
in paragraph 1 above duly certified together with
certificates of incumbency also duly certified in respect
of each such person.
Page 36 of 43
DATED THIS 17th DAY OF MAY, 2002
BETWEEN
CHINA EVERBRIGHT HOLDINGS COMPANY LIMITED
and
HONG LEONG ASIA LTD.
***********************************************
SECOND SUPPLEMENTAL SUBSCRIPTION AND
SHAREHOLDERS AGREEMENT
***********************************************
Page 37 of 43
2
TABLE OF CONTENTS
Index Page No.
1 INTERPRETATION 3
2 AMENDMENTS TO THE SUBSCRIPTION AND 3-4
SHAREHOLDERS AGREEMENT
3 PRESENTATIONS AND WARRANTIES 4-5
4 INCORPORATION 5
5 EXPENSES AND STAMP DUTY 5
6 CONFIRMATION 6
7 GOVERNING LAW 7
SCHEDULE-- CONDITIONS PRECEDENT
Page 38 of 43
3
THIS SECOND SUPPLEMENTAL SUBSCRIPTION AND SHAREHOLDERS AGREEMENT is made on
17th May, 2002 BETWEEN CHINA EVERBRIGHT HOLDINGS COMPANY LIMITED (Company
Registration No.:124247) a company duly established and existing under the
laws of Hong Kong having its registered office at 48/F, Far East Finance
Centre, 16 Harcourt Road, Hong Kong (hereinafter referred to as "EB Holdings")
of the first part and HONG LEONG ASIA LTD (Company Registration No.196300306G)
a company duly established and existing under the laws of Singapore having its
registered office at 36 Robinson Road #04-01 City House Singapore 068877
(hereinafter referred to as "HLA") of the other part.
WHEREAS:
(A) This Second Supplemental Subscription and Shareholders Agreement
(hereinafter referred to as the "Supplemental Agreement") is supplemental
to the Subscription and Shareholders Agreement dated 9th November, 1994
made between the Parties.
(B) EB Holdings has requested and HLA has agreed to amend the provisions
governing the exercise by the Parties of its redemption right to redeem
its Redeemable Stock under the Subscription and Shareholders Agreement.
(C) Pursuant to the aforesaid the Parties have agreed subject to the terms
and conditions set out in this Supplemental Agreement and the
consequential amendments to the Subscription and Shareholders Agreement
to facilitate the understandings reached between the Parties in the
manner and to the extent as hereinafter set forth.
NOW IT IS HEREBY AGREED AS FOLLOWS:
1. INTERPRETATION
1.1 In this Supplemental Agreement except where the context
otherwise requires:
"Effective Date" has the meaning ascribed to it in Clause 2 of
this Supplemental Agreement.
1.2 All terms and references used in this Supplemental Agreement
and which are defined or construed in the Subscription and
Shareholders Agreement but are not defined or construed in this
Supplemental Agreement shall have the same meaning and
construction in this Supplemental Agreement.
1.3 The headings in this Supplemental Agreement are inserted for
convenience only and shall be ignored in construing this
Supplemental Agreement. Unless otherwise stated references to
the "Clauses" and "Schedules" are to be construed as reference
to the clauses of and the schedule to this Supplemental
Agreement.
2. AMENDMENTS TO THE SUBSCRIPTION AND SHAREHOLDERS AGREEMENT
2.1 EB Holdings and HLA as Parties to this Supplemental Agreement
agree that with effect from the date of this Supplemental
Agreement (or such
Page 39 of 43
4
other date as may be agreed between EB Holdings and HLA
(hereinafter referred to as the "Effective Date")) Article I
Section 2.02(a) shall be amended as follows:
"Section 2.02 Redemption of Redeemable Stock
(a) Each Shareholder shall have the right to direct DML to
redeem any or all Redeemable Stock held by such
Shareholder, subject to such Shareholder's obligations
under any "lock-up" agreement between such Shareholder and
the managing underwriters of the CYI IPO, by giving
written notice (a "Redemption Notice") to DML and the
other Shareholder, specifying the number of Redeemable
Shares to be redeemed, and whether they are to be redeemed
for CYI Shares or sales proceeds thereof, as provided
below. DML shall redeem the Shares of Redeemable Stock set
forth in the Redemption Notice within 10 business days (as
defined below) after delivery of such notice; and DML
shall, at the redeeming Shareholder's option, (i) exchange
one CYI Share for each share of Redeemable Stock to be
redeemed or (ii) sell one CYI Share for each share of
Redeemable Stock to be redeemed and redeem such shares of
Redeemable Stock at a price equal to the net sale proceeds
of such CYI Shares. For the avoidance of doubt, each
Shareholder shall not have the right to purchase shares of
redeemable stock (in respect of which a Redemption Notice
is given by a Shareholder hereunder) after a Redemption
Notice has been given by the other Shareholder.
Provided that (i) on or before the Effective Date each of EB
Holdings and HLA have received from the other (in the form and
substance satisfactory to it) each of the documents specified
in the Schedule to this Supplemental Agreement and (ii) on the
Effective Date the Representations and Warranties in Clause 3
of this Supplemental Agreement are true and correct in all
respects as of such date as if made on such date with respect
to the facts and circumstances existing at each date.
2.2 Article 1, Section 2.02(c) of the Subscription and Shareholders
Agreement is hereby deleted in its entirety.
2.3 Each of EB Holdings and HLA hereby agree to take all necessary
steps as soon as possible after the Effective Date to amend or
to cause to be amended the Articles of Association of DML to
reflect the amendments to the Subscription and Shareholders'
Agreement abovementioned in Clause 2.1 and 2.2 herein, in
particular (but without limitation) the following part in
paragraph 5(2)(b) of the said Articles of Association of DML
shall be deleted in its entirety:
"PROVIDED THAT if the Controlling Shareholder gives a
notice of redemption and sells to the Majority Shareholder
the Redeemable Shares in respect of which such notice is
given, or if the Majority Shareholder gives a notice of
redemption and sells to the Controlling Shareholder the
Redeemable Shares in respect of
Page 40 of 43
5
which such notice is given, then such notice of redemption
shall be deemed null and void. Any Class A Redeemable
Ordinary Shares purchased by holders of Class B Redeemable
Ordinary Shares shall, upon completion of the purchase, be
converted into and re-classified as Class B Redeemable
Ordinary Shares and any Class B Redeemable Ordinary Shares
purchased by holders of Class A Redeemable Ordinary Shares
shall, upon completion of the purchase, be converted into
and re-classified as Class A Redeemable Ordinary Shares."
3. Representations and Warranties
Each of EB Holdings and HLA represents and warrants to and for the
benefit of the other as a Party to this Supplemental Agreement that:
3.1 all actions conditions and things required to be taken fulfilled and
done by or on behalf of EB Holdings and HLA as the case may be
(including the obtaining of any necessary consents) in order (a) to
enable it lawfully to enter into exercise its rights and perform and
comply with its obligations under this Supplemental Agreement and
(b) to make this Supplemental Agreement admissible in evidence in
the courts of Hong Kong Special Administrative Region of the
People's Republic of China Singapore and New York have been taken
fulfilled and done;
3.2 its entry into exercise of its rights and/or performance of or
compliance with its obligations under this Supplemental Agreement do
not and will not violate in any material respect (a) any law to
which it is subject (b) its Articles of Association or (c) any
agreement to which it is a party or which is binding on it or its
assets;
3.3 this Supplemental Agreement and the Subscription and Shareholders
Agreement constitute its valid binding and enforceable obligations;
and
3.4 it is not in breach of any of its obligations under the Subscription
and Shareholders Agreement.
4. Incorporation
4.1 The Subscription and Shareholders Agreement and this Supplemental
Agreement shall be read and construed as one document and this
Supplemental Agreement shall be considered as part of the
Subscription and Shareholders Agreement and without prejudice to the
generality of the foregoing where the context so allows references
in the Subscription and Shareholders Agreement to "this Agreement"
howsoever expressed shall be read and construed as references to the
Subscription and Shareholders Agreement as amended modified or
supplemented by this Supplemental Agreement.
4.2 Except to the extent expressly amended by the provisions of this
Supplemental Agreement the terms and conditions of the Subscription
and Shareholders Agreement and all other instruments and agreements
Page 41 of 43
6
executed delivered or entered into thereunder or pursuant thereto
are hereby confirmed and shall remain in full force and effect.
5. Expenses and Stamp Duty
Each of HLA and EB Holdings shall pay promptly and in any event before
any penalty becomes payable any stamp goods and services value added
documentary or similar duty or tax payable in connection with its entry
into performance enforcement and admissibility in evidence of this
Supplemental Agreement and shall indemnify the other against any
liability with respect to or resulting from any delay in paying or
omission to pay any such tax.
6. Confirmation
Each of HLA and EB Holdings hereby irrevocably and unconditionally
confirms that its obligations under the Subscription and Shareholders
Agreement and another Supplemental Subscription and Shareholders
Agreement dated 21st January, 2002 to which it is a party remains in full
force and effect and is binding on it and shall continue in full force
and effect and be binding on it notwithstanding the amendments to the
Subscription and Shareholders Agreement in the manner provided in this
Supplemental Agreement.
7. Governing Law
This Supplemental Agreement shall be governed by and construed in
accordance with the laws of the State of New York and the Parties hereto
irrevocably submit to the non-exclusive jurisdiction of the Hong Kong
Singapore and New York Courts in relation to any proceedings arising out
of or in connection with Second Supplemental Agreement.
IN WITNESS WHEREOF this Supplemental Agreement has been entered into on the
date hereinbefore first stated.
SIGNED by )
Passport No. )
for and on behalf of )
HONG LEONG ASIA LTD )
in the presence of : )
SIGNED by )
Passport No. )
for and on behalf of )
CHINA EVERBRIGHT HOLDINGS )
COMPANY LIMITED )
in the presence of: )
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SCHEDULE
CONDITIONS PRECEDENT
1. A copy certified true by an authorized officer of each of EB Holdings and
HLA as being in full force and effect on the date thereof of:
(1) all actions required to be taken by each of EB Holdings and HLA (a)
authorizing the entry into of this Supplemental Agreement and (b)
authorizing appropriate persons to execute and deliver this
Supplemental Agreement on their respective behalves and to take any
action contemplated in this Supplemental Agreement; and
(2) all necessary consents required by each of EB Holdings and HLA for
the execution delivery and performance of this Supplemental
Agreement or if no such consents are necessary a certificate to that
effect from a person duly authorized by each of EB Holdings and HLA
so to certify.
2. Specimen signatures of the respective persons referred to in paragraph 1
above duly certified together with certificates of incumbency also duly
certified in respect of each such person.
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