For his part, Mr Kwok Ho said that he had been persuaded into making the agreements by Mr Zhang Hua Qiao Joe (「Mr Joe Zhang」) of UBS. He knew him as an analyst at UBS who, after having left their employment, had recently returned to UBS. He had been persuaded that the very fact of being able to achieve a placement in a difficult market would be to Chaoda's benefit.
His concerns and misgivings about the lock-up provision had been assuaged by the provision to him, at his request, of a letter on the letterhead of UBS dated 23 February 2009, marked 『Keep in strict confidence' signed by Mr Mark Williams and Mr Joe Zhang. The letter confirmed that UBS had the discretionary power to give a written waiver of the lock-up provision, as stipulated in clause 8 of the placing agreement.
配股條文: 「本公司亦已向配售代理承諾，於完成配售起計90日這段期間內，除發行認購股份、任何根據於認購日行使現行僱員股份認購權及可換股債券持有人行使其兌換權，而將會發行或授予的新股份，以及其他在配售協議中載述之例外情況，或獲得配售代理事先同意外，本公司將不會發行任何新股份。」2. 2009年4月的配售及失敗
Mr Kwok Ho said that while he was working with the four investment banks on the proposed placement in April 2009 Mr Joe Zhang of UBS, having learned of that development, had approached him offering to become involved in the proposed placement, saying that UBS was prepared to take 50% of the size of the placement.
Prior to that, it had not occurred to him to contact UBS in respect of a waiver of the lock-up provision in the February 2009 placement.
.... In response, he was advised by UBS that the waiver of a lock-up that had been publicly announced in the placement was a serious matter and it was necessary that the shareholders be given information of the difficulties that Chaoda faced. He asked that the terms set out in the draft letter be reduced in size. ...
Mr Kwok Ho said of the proposed April 2009 placement that he had wanted a placement price of $5.00 per share with a size of the proceeds of the placement of $200 - $250 million. However, the four investment banks that were working on his behalf, including Merrill Lynch, had come back to him with a price for the placement shares in the range $4.50 to $4.70. Also, they had suggested to him a size of placement in the range $150 - $200 million. Both size and price were reasons for his determining not to proceed with the proposedplacement in April 2009.
He told his bankers, 「We are not going ahead with the placement
In the event,「when the market sentiment wasn't good」 he decided not to proceed with the
Chaoda set out changes said to have occurred in its position since the February placement.Although Chaoda had funds in RMB in the Mainland, there were difficulties in remitting money out of the PRC. Further, although Chaoda had told UBS in February 2009 that it had enough funds to meet the redemption of the convertible bond in May 2009 at that time it had received no indication of the level of bond redemptions. Now, notice had been received. Finally, Chaoda explained that other financing possibilities were not practicable.
On 8 May 2009, Chaoda announced that on 7 May 2009 it had repaid $1,422 million due in respect of a convertible bond. Mr Kwok Ho testified that following the decision announced on 29 April 2009 not to proceed with the placement of Chaoda shares he had embarked on urgent efforts to arrange for the availability of money to make the repayment of the convertible bond as it fell due. He returned to the Mainland to do so. One difficulty he encountered was the fact of the week-long holiday following 1 May 2009. In the event, he had managed to borrow $500 million.
(按: 公司話自己有錢，但內地難調錢來香港，點解要回內地借錢，一樣都是調來香港，點解前者困難，後者會唔困難? 唔通他用大飛運落來? )4. 郭浩對配售時對基金路演的問題的看法
Mr Kwok Ho explained repeatedly how he had communicated with the investors in the conference calls. If he was asked directly if Chaoda planned to launch a placement, he would respond with what he described as the 「standard answer」, namely 「Up to today, the company has made no decision to do a placement.」 If the investor had pressed with further questions, he would respond that if market sentiment was good, and permitted the launch of a placement, the company would consider doing so.
.... . However, some of the investors had pressed for more detail, in which circumstances he had responded by saying that if market sentiment allowed the financing to be done, 「the amount to be raised an the price would be similar to April. Also included was what those monies would be used for if there was such financing is going to happen.」
噏，他需要錢你就信，唔信就唔好買囉。但根據報告，好多分析報告都按老闆所言作個財務的預測，使人信以為真，咁即是信唔好信你的報告呢? 講到底又信心問題。)5. 2009年6月配售最後兩日
Mr Kwok Ho said that he told Mr Rodney Tsang that the conference calls had been 「Quite good. The atmosphere was quite good.」 By that he said that he meant that the atmosphere between the parties have been quite light-hearted, jokes had been exchanged. The investors had been happy with the development of the company and what had been discussed. He did not say that he had told investors that there would be a placement; that placement shares would be priced at $5.00 per share and the size of the placement would be $200 - $250 million.
...That had prompted a reply from one of the investors, to the effect that they would consider participating in the placement, 「because they didn't want their share to be diluted.」 He had told
Mr Rodney Tsang of that at the midnight meeting...
Tsang advised his colleague Mr Allan Wong that, having opened at $5.50, theprice of Chaoda's shares had dropped to $5.25. ...
Mr Kwok Ho said that he could not remember if Mr Rodney Tsang had come to his offices on the morning of 16 June 2009. He did not recall a discussion about the share price, nor was he paying attention to it at that time. He accepted that he did mention to Mr Rodney Tsang in effect that he wanted to do the placement as soon as possible.
At a meeting of the Board of Directors of Chaoda at 5 p.m. on 17 June 2009, at which Mr Kwok Ho and Mr Andy Chan were in attendance, it was resolved that Chaoda enter into a placing agreement with joint placing agents for the placement on a 「best efforts basis」 of up to 388 million new shares of the company at HK$4.60 per share. Mr Kwok Ho identified his signatures on the placing agreement, dated 17 June 2009.