Conditions to the Issuance. (i) The respective obligations of the Parties to consummate the Issuance shall be subject to the fulfillment, at or prior to the Issuance Closing, of the following conditions, which may, to the extent permitted by applicable Law, be waived in a writing signed by the Seller and the Purchaser, in the sole discretion of each such Party (except in the case of the Seller, with the prior written approval of the Alibaba Independent Committee): (A) No Governmental Authority shall have, after the Amendment Date, enacted, issued, promulgated, enforced or entered any Law (whether temporary, preliminary or permanent) that is then in effect and that enjoins, restrains, makes illegal or otherwise prohibits the consummation of the Issuance; and (B) The following approvals (the “Issuance Approvals”) shall have been received and shall remain in effect as of the Issuance Closing:(1) MIIT shall have delivered one or multiple approval opinion letters confirming the status of both Ant and Alipay being foreign-invested value-added telecom service enterprises, (2) the Commerce Department of Zhejiang Province shall have delivered a general official reply to the Purchaser which satisfies the requirements of MIIT for issuance of an ICP license for foreign-invested telecommunication enterprises to each of Ant and Alipay, and (3) Seller Designated Investment Entity shall be registered by the applicable Administration for Industry and Commerce as a shareholder of the Purchaser. (C) The Cross-License Agreement and the Amended IPLA shall have been executed and delivered by the relevant Parties at the Issuance Closing. (ii) The obligations of the Seller and the Seller Designated Investment Entity to consummate the Issuance shall be subject to the fulfillment, at or prior to the Issuance Closing, of each of the following conditions, any of which, to the extent permitted by applicable Law, may be waived in writing by the Seller (with the prior written approval of the Alibaba Independent Committee) in its sole discretion: (A) The board of directors of the Purchaser and the Independent Director shall have duly approved the Issuance and the execution and/or delivery of the deliveries contemplated by Section 2.3(d) and the Purchaser shall have delivered a certified copy of the board resolution to the Seller; (B) The shareholders of the Purchaser shall have duly approved the Issuance and the execution by the Purchaser of the Shareholder’s Agreement, and shall have duly approved and adopted the amendment of the articles of association of the Purchaser in accordance with this Agreement and the Purchaser shall have delivered a certified copy of the shareholders resolution to the Seller; (C) The Purchaser and all the shareholders of the Purchaser (other than the Seller Designated Investment Entity) shall have duly executed the Shareholder’s Agreement and the Purchaser shall have delivered to the Seller counterparts of the Shareholder’s Agreement duly executed by the Purchaser and all the shareholders of the Purchaser (other than the Seller Designated Investment Entity); (D) The Purchaser shall have duly executed the Subscription Agreement and the Purchaser shall have delivered to the Seller a counterpart of the Subscription Agreement duly executed by the Purchaser; (E) The applicable Administration for Industry and Commerce shall have accepted the filing with respect to the Seller Directors being elected as members of the board of directors of the Purchaser and the Purchaser shall have delivered a certified copy of such filing record to the Seller; (F) The Purchaser shall have completed its equity financing transaction within Mainland China and the Purchaser shall have delivered the Seller documentary evidence of the completion of such financing transaction; (G) 杭州吱声信息技术有限公司 (Hangzhou Zisheng Information Technology Co., Ltd.) (“Hangzhou Zisheng”) shall have de-registered its internet culture business license, or the Purchaser shall have spun off or otherwise separated Hangzhou Zisheng and the Purchaser shall have delivered the Seller the certified copies of the documents evidencing such de-registration or spin-off; (H) The representations and warranties of the Purchaser and the Management Holdcos set forth in Section 5.1, Section 5.2, Section 5.3, Section 5.4, Section 5.6, Section 6.1, Section 6.2, Section 6.3 and Section 6.5 shall be true and correct as of the Amendment Date and as of the Issuance Closing Date as if made as of such date (unless made as of a specified date, in which case, as of such date); (I) The Purchaser shall have performed and complied with, in all material respects, all obligations and agreements related to the Issuance and the transfer of Stage 1 Retained IP required by this Agreement to be performed or complied with by it prior to or at the Issuance Closing; (J) The Seller shall have received from the Purchaser a certificate to the effect that the conditions set forth in Section 2.3(c)(ii)(H) and Section 2.3(c)(ii)(I) are satisfied and signed by a duly authorized executive officer thereof; and (K) an opinion of Fangda Partners shall have been delivered to the Seller to the effect that (A) all approvals by Governmental Authorities of Mainland China that are required in connection with, and for the consummation of, the Issuance have been obtained, and (B) each of this Agreement, the Subscription Agreement and the Shareholder’s Agreement is valid and enforceable under the Laws of Mainland China against the Parties hereto and is duly authorized by the Parties hereto organized under the Laws of Mainland China or domiciled in Mainland China, which opinion shall be addressed to the Seller and shall be substantially in the form attached as Exhibit C. (iii) The obligations of the Purchaser to consummate the Issuance shall be subject to the fulfillment, at or prior to the Issuance Closing, of each of the following conditions, any of which, to the extent permitted by applicable Law, may be waived in writing by the Purchaser in its sole discretion: (A) Each of the board of directors of the Seller, the Alibaba Independent Committee, the Seller Audit Committee and SoftBank shall have approved the Issuance and the execution and/or delivery of the deliveries contemplated by Section 2.3(e) and the Seller shall have delivered the certified copies of the relevant approvals and board resolutions to the Purchaser; (B) The Seller Designated Investment Entity shall have duly executed the Shareholder’s Agreement and the Seller shall have delivered to the Purchaser a counterpart of the Shareholder’s Agreement duly executed by the Seller Designated Investment Entity; (C) The Seller Designated Investment Entity shall have duly executed the Subscription Agreement and the Seller shall have delivered to the Purchaser a counterpart of the Subscription Agreement duly executed by the Seller Designated Investment Entity; (D) The representations and warranties of the Seller set forth in Section 4.1, Section 4.2, Section 4.3 and Section 4.8 shall be true and correct as of the Amendment Date and as of the Issuance Closing Date as if made as of such date (unless made as of a specified date, in which case, as of such date); (E) The Seller and the Seller Designated Investment Entity shall have performed and complied with, in all material respects, all obligations and agreements related to the Issuance and the transfer of Stage 1 Retained IP (including pursuant to Section 2.2(b)) required by this Agreement to be performed or complied with by it prior to or at the Issuance Closing; and (F) The Purchaser shall have received from the Seller a certificate to the effect that the conditions set forth in Section 2.3(c)(iii)(D) and Section 2.3(c)(iii)(E) are satisfied and signed by a duly authorized executive officer thereof.
Appears in 1 contract
Sources: Share and Asset Purchase Agreement (Alibaba Group Holding LTD)
Conditions to the Issuance. (i) The respective obligations of the Parties to consummate the Issuance shall be subject to the fulfillment, at or prior to the Issuance Closing, of the following conditions, which may, to the extent permitted by applicable Law, be waived in a writing signed by the Seller and the Purchaser, in the sole discretion of each such Party (except in the case of the Seller, with the prior written approval of the Alibaba Independent Committee):
(A) No Governmental Authority shall have, after the 2018 Amendment Date, enacted, issued, promulgated, enforced or entered any Law (whether temporary, preliminary or permanent) that is then in effect and that enjoins, restrains, makes illegal or otherwise prohibits the consummation of the Issuance; and
(B) The following approvals (the “Issuance Approvals”) shall have been received and shall remain in effect as of the Issuance Closing:(1Closing: (1) MIIT shall have delivered one or multiple approval opinion letters confirming the status of both Ant and Alipay being foreign-invested value-added telecom service enterprises, (2) the Commerce Department of Zhejiang Province shall have delivered a general official reply to the Purchaser which satisfies the requirements of MIIT for issuance of an ICP license for foreign-invested telecommunication enterprises to each of Ant and Alipay, and (3) Seller Designated Investment Entity shall be registered by the applicable Administration for Industry and Commerce as a shareholder of the Purchaser.
(C) The Cross-License Agreement and the Amended IPLA shall have been executed and delivered by the relevant Parties at the Issuance Closing..
(ii) The obligations of the Seller and the Seller Designated Investment Entity to consummate the Issuance shall be subject to the fulfillment, at or prior to the Issuance Closing, of each of the following conditions, any of which, to the extent permitted by applicable Law, may be waived in writing by the Seller (with the prior written approval of the Alibaba Independent Committee) in its sole discretion:
(A) The board of directors of the Purchaser and the Independent Director shall have duly approved the Issuance and the execution and/or delivery of the deliveries contemplated by Section 2.3(d) and the Purchaser shall have delivered a certified copy of the board resolution to the Seller;
(B) The shareholders of the Purchaser shall have duly approved the Issuance and the execution by the Purchaser of the Shareholder’s Agreement, and shall have duly approved and adopted the amendment of the articles of association of the Purchaser in accordance with this Agreement and the Purchaser shall have delivered a certified copy of the shareholders resolution to the Seller;
(C) The Purchaser and all the shareholders of the Purchaser (other than the Seller Designated Investment Entity) shall have duly executed the Shareholder’s Agreement and the Purchaser shall have delivered to the Seller counterparts of the Shareholder’s Agreement duly executed by the Purchaser and all the shareholders of the Purchaser (other than the Seller Designated Investment Entity);
(D) The Purchaser shall have duly executed the Subscription Agreement and the Purchaser shall have delivered to the Seller a counterpart of the Subscription Agreement duly executed by the Purchaser;
(E) The applicable Administration for Industry and Commerce shall have accepted the filing with respect to the Seller Directors being elected as members of the board of directors of the Purchaser and the Purchaser shall have delivered a certified copy of such filing record to the Seller;
(F) The Purchaser shall have completed its equity financing transaction within Mainland China and the Purchaser shall have delivered the Seller documentary evidence of the completion of such financing transaction;
(G) 杭州吱声信息技术有限公司 (Hangzhou Zisheng Information Technology Co., Ltd.) (“Hangzhou Zisheng”) shall have de-registered its internet culture business license, or the Purchaser shall have spun off or otherwise separated Hangzhou Zisheng and the Purchaser shall have delivered the Seller the certified copies of the documents evidencing such de-registration or spin-off;
(H) The representations and warranties of the Purchaser and the Management Holdcos set forth in Section 5.1, Section 5.2, Section 5.3, Section 5.4, Section 5.6, Section 6.1, Section 6.2, Section 6.3 and Section 6.5 shall be true and correct as of the 2018 Amendment Date and as of the Issuance Closing Date as if made as of such date (unless made as of a specified date, in which case, as of such date);;
(I) The Purchaser shall have performed and complied with, in all material respects, all obligations and agreements related to the Issuance and the transfer of Stage 1 Retained IP required by this Agreement to be performed or complied with by it prior to or at the Issuance Closing;
(J) The Seller shall have received from the Purchaser a certificate to the effect that the conditions set forth in Section 2.3(c)(ii)(H) and Section 2.3(c)(ii)(I) are satisfied and signed by a duly authorized executive officer thereof; and
(K) an opinion of Fangda Partners shall have been delivered to the Seller to the effect that (A) all approvals by Governmental Authorities of Mainland China that are required in connection with, and for the consummation of, the Issuance have been obtained, and (B) each of this Agreement, the Subscription Agreement and the Shareholder’s Agreement is valid and enforceable under the Laws of Mainland China against the Parties hereto and is duly authorized by the Parties hereto organized under the Laws of Mainland China or domiciled in Mainland China, which opinion shall be addressed to the Seller and shall be substantially in the form attached as Exhibit C.C to the 2014 SAPA (as amended on February 1, 2018).
(iii) The obligations of the Purchaser to consummate the Issuance shall be subject to the fulfillment, at or prior to the Issuance Closing, of each of the following conditions, any of which, to the extent permitted by applicable Law, may be waived in writing by the Purchaser in its sole discretion:
(A) Each of the board of directors of the Seller, the Alibaba Independent Committee, the Seller Audit Committee and SoftBank shall have approved the Issuance and the execution and/or delivery of the deliveries contemplated by Section 2.3(e) and the Seller shall have delivered the certified copies of the relevant approvals and board resolutions to the Purchaser;
(B) The Seller Designated Investment Entity shall have duly executed the Shareholder’s Agreement and the Seller shall have delivered to the Purchaser a counterpart of the Shareholder’s Agreement duly executed by the Seller Designated Investment Entity;
(C) The Seller Designated Investment Entity shall have duly executed the Subscription Agreement and the Seller shall have delivered to the Purchaser a counterpart of the Subscription Agreement duly executed by the Seller Designated Investment Entity;
(D) The representations and warranties of the Seller set forth in Section 4.1, Section 4.2, Section 4.3 and Section 4.8 shall be true and correct as of the 2018 Amendment Date and as of the Issuance Closing Date as if made as of such date (unless made as of a specified date, in which case, as of such date);
(E) The Seller and the Seller Designated Investment Entity shall have performed and complied with, in all material respects, all obligations and agreements related to the Issuance and the transfer of Stage 1 Retained IP (including pursuant to Section 2.2(b)) required by this Agreement to be performed or complied with by it prior to or at the Issuance Closing; and
(F) The Purchaser shall have received from the Seller a certificate to the effect that the conditions set forth in Section 2.3(c)(iii)(D) and Section 2.3(c)(iii)(E) are satisfied and signed by a duly authorized executive officer thereof.
Appears in 1 contract
Sources: Share and Asset Purchase Agreement (Alibaba Group Holding LTD)