REPRESENTATIONS, WARRANTIES AND UNDERTAKINGS. 5.1 Each of the Sellers represents and warrants to the Buyer that each Seller Warranty is true, accurate and not misleading at the date of this Agreement. Immediately before Closing, each of the Sellers is deemed to warrant to the Buyer that each Seller Warranty is true, accurate and not misleading by reference to the facts and circumstances on each day before Closing, and for this purpose only any references in the Seller Warranties to the date of this Agreement shall be construed as references to the relevant date. Unless otherwise set out in this Agreement, no other warranty is given by the Sellers. 5.2 Each of the Sellers acknowledges that the Buyer is entering into this Agreement in reliance on each Seller Warranty which has also been given as a representation and with the intention of inducing the Buyer to enter into this Agreement. The Sellers shall not invoke the Buyer’s constructive or imputed knowledge of a fact or circumstance which might make a Seller Warranty untrue, inaccurate or misleading as a defence to a claim for breach of Clause 5.1. 5.3 Each Seller Warranty is to be construed independently and (except where this Agreement provides otherwise) is not limited by a provision of this Agreement or another Warranty. 5.4 Each of the Sellers represents and warrants to the Buyer that: 5.4.1 each of the Sellers is an entity duly organized and validly existing under the laws of its country of origin; 5.4.2 each of the Sellers has the legal right, full power and authority, and has taken all action necessary, to execute, deliver and to exercise its rights, and perform its obligations, under this Agreement and any other documents to be executed by each of the Sellers pursuant to or in connection with this Agreement, which when executed will constitute valid and binding obligations on each Seller and its asset management clients for whose account the Sale Shares are managed and who are the beneficial owners; 5.4.3 the Sale Shares are beneficially owned by the Sellers’ asset management clients in managed accounts over which the Sellers have investment discretion. To the best of the Sellers’ knowledge, there is no other person who has any legal or beneficial interest in the Sale Shares; 5.4.4 each of the Sellers is validly appointed as discretionary investment manager by the beneficial owners in respect of the Sale Shares; 5.4.5 the Sale Shares are beneficially owned by the Sellers’ asset management clients; to the best of the Sellers’ knowledge, the beneficial owners of the Sale Shares have the full legal right to sell the Sale Shares and which are free from any Encumbrances; 5.4.6 upon completion of the Scheme, the Sellers’ asset management clients will be the sole beneficial owners of the New Unicom Shares and the New Unicom ADSs; 5.4.7 each of the Sellers has not created or permitted the creation of any Encumbrance nor entered into any agreement, arrangement or obligation to create or give an Encumbrance, in relation to any of the Sale Shares, the New Unicom Shares and/or the New Unicom ADSs, and to the best of the Sellers’ knowledge, no person has claimed to be entitled to an Encumbrance in relation to any of the Sale Shares, the New Unicom Shares and/or the New Unicom ADSs; 5.4.8 to the extent it held proxy voting authority, each of the Sellers has tendered votes in respect of the Shares underlying the Sale Netcom ADSs in favour of the resolution approving the scheme of arrangement under section 166 of the Companies Ordinance (Cap 32 of the Laws of Hong Kong) between the Company and the shareholders of the Company at the extraordinary general meeting of the Company to be held on 17 September 2008, and any adjournment thereof; 5.4.9 the execution and delivery of, and the performance by each of the Sellers of its obligations under, this Agreement and any other documents to be executed by it pursuant to or in connection with this Agreement will not: (a) result in a breach of any provision of the constitutional or organisational documents of each of the Sellers; (b) result in a breach of or give any third party a right to terminate or modify, or result in the creation of any Encumbrance under, any agreement, licence or other instrument or result in a breach of any order, judgment or decree of any court, governmental agency or regulatory body to which each of the Sellers or its nominee is a party or by which any of the Sellers or its nominee or any of their respective assets is bound; or (c) result in any breach of any contractual covenants or investment management agreement to which each of the Sellers is subject; 5.4.10 each of the Sellers is not a “connected fund manager” (as defined in the Takeovers Code) or a “connected principal trader” (as defined in the Takeovers Code) of the offeror (i.e. Unicom) or the offeree company (i.e. the Company) nor a party acting in concert with the offeror and that consent from the Executive Director of the Corporate Finance Division of the Securities & Futures Commission is not required for the sale of the Sale Shares; 5.4.11 each of the Sellers is not required to obtain any other person’s consent in relation to the sale of the Sale Shares, the New Unicom Shares and the New Unicom ADSs; 5.4.12 each of the Sellers is not a connected person (as such term is defined in the Rules Governing the Listing of Securities on The Hong Kong Stock Exchange Limited) of the Company or Unicom; 5.4.13 no petition has been presented or order made and no meeting convened or resolution passed for the winding up or administration of any of the Sellers or for a provisional liquidator to be appointed in respect of any of the Sellers; 5.4.14 no distress, execution or other process has been levied on any of the assets of any of the Sellers, and no judgment creditor nor any liquidator, provisional liquidator, receiver or an administrative receiver of any of the Sellers has been appointed and there is no reason to believe that such a person might be appointed; 5.4.15 no voluntary arrangement has been proposed in respect of any of the Sellers and their creditors; and 5.4.16 each of the Sellers is not insolvent, or unable to pay its debts, and has not stopped paying its debts as they fall due, and no event analogous to any of the foregoing has occurred in or outside Hong Kong. 5.5 The Buyer represents and warrants to the Sellers that each Buyer Warranty is true, accurate and not misleading at the date of this Agreement. Immediately before Closing, the Buyer is deemed to warrant to the Sellers that each Buyer Warranty is true, accurate and not misleading by reference to the facts and circumstances on each day before Closing, and for this purpose only, any references in the Buyer Warranties to the date of this Agreement shall be construed as references to the relevant date. Unless otherwise set out in this Agreement, no other warranty is given by the Buyer. 5.6 The Buyer acknowledges that each of the Sellers is entering into this Agreement in reliance on each Buyer Warranty which has also been given as a representation and with the intention of inducing the Sellers to enter into this Agreement. The Buyer shall not invoke the Sellers’ constructive or imputed knowledge of a fact or circumstance which might make a Buyer Warranty untrue, inaccurate or misleading as a defence to a claim for breach of Clause 5.5. 5.7 The Buyer represents and warrants to the Sellers that: 5.7.1 the Buyer is a corporation duly organized and validly existing under the laws of its country of origin; 5.7.2 the Buyer has the legal right, full power and authority, and has taken all action necessary, to execute, deliver and to exercise its rights, and perform its obligations, under this Agreement and any other documents to be executed by the Buyer pursuant to or in connection with this Agreement, which when executed will constitute valid and binding obligations on the Buyer; 5.7.3 the execution and delivery of, and the performance by the Buyer of its obligations under, this Agreement and any other documents to be executed by it pursuant to or in connection with this Agreement will not: (a) result in a breach of any provision of the constitutional or organisational documents of the Buyer; or (b) result in a breach of or give any third party a right to terminate or modify, or result in the creation of any Encumbrance under, any agreement, licence or other instrument or result in a breach of any order, judgment or decree of any court, governmental agency or regulatory body to which the Buyer or its nominee is a party or by which any of the Buyer or its nominee or any of their respective assets is bound; 5.7.4 the Buyer is not required to obtain any other person’s consent in relation to the acquisition of the Sale Shares; 5.7.5 no petition has been presented or order made and no meeting convened or resolution passed for the winding up or administration of the Buyer or for a provisional liquidator to be appointed in respect of the Buyer; 5.7.6 no distress, execution or other process has been levied on any of the assets of the Buyer, and no judgment creditor nor any liquidator, provisional liquidator, receiver or an administrative receiver of the Buyer has been appointed and there is no reason to believe that such a person might be appointed; 5.7.7 no voluntary arrangement has been proposed in respect of the Buyer and its creditors; and 5.7.8 the Buyer is not insolvent, or unable to pay its debts, and has not stopped paying its debts as they fall due, and no event analogous to any of the foregoing has occurred in or outside Hong Kong. 5.8 Each of the Sellers undertakes to the Buyer that it shall not dispose of or enter into any agreement or arrangement to dispose of or permit the disposal of any of the Sale Shares, the disposal of which is subject to its discretion from the date of this Agreement and until the Long Stop Date or the date when this Agreement is terminated in accordance with Clause 3.3, whichever is earlier. 5.9 Each of the Sellers further undertakes to the Buyer that it shall exercise or procure to be exercised all the voting rights attaching to the Sale Listed Shares in favour of the resolution approving the Scheme and the Share Proposal at the shareholders’ meeting of the Company to be held on 17 September 2008, and any adjournment thereof.
Appears in 2 contracts
Sources: Share Purchase Agreement (Telefonica S A), Share Purchase Agreement (Telefonica S A)
REPRESENTATIONS, WARRANTIES AND UNDERTAKINGS. 5.1 6.1 The Seller represents, warrants and undertakes to the Purchaser in the terms of the Warranties as set out in Part A of Schedule 3 and acknowledges that the Purchaser has entered into this Agreement in reliance upon the Seller Warranties. Each of the Sellers represents and warrants Seller Warranties is subject to the Buyer information already disclosed to the Purchaser and shall be qualified and limited accordingly.
6.2 The Purchaser represent, warrant and undertake to the Seller in terms of the Warranties as set out in Part B of Schedule 3 and acknowledges that each the Seller has entered into this Agreement in reliance upon the Purchaser Warranties.
6.3 Each of the Warranties shall be construed as a separate Warranty is true, accurate and (save as expressly provided to the contrary) shall not misleading at be limited or restricted by reference to or inference from the date terms of any other Warranty or any other term of this Agreement. Immediately before Closing, each of the Sellers is .
6.4 The Warranties shall be deemed to warrant to the Buyer that each Seller Warranty is true, accurate and not misleading by be repeated immediately before Closing with reference to the facts and circumstances on each day before Closing, and for this purpose only then existing.
6.5 The Seller undertakes to notify the Purchaser in writing promptly if it becomes aware of any references in the Seller Warranties to circumstance arising after the date of this Agreement shall be construed as references to which would cause any of the relevant date. Unless otherwise Seller Warranties set out in this Agreement, no other warranty is given by Part A of Schedule 3 (if the Sellers.
5.2 Each of the Sellers acknowledges that the Buyer is entering into this Agreement in reliance on each Seller Warranty which has also been given as a representation and Warranties were repeated with the intention of inducing the Buyer to enter into this Agreement. The Sellers shall not invoke the Buyer’s constructive or imputed knowledge of a fact or circumstance which might make a Seller Warranty untrue, inaccurate or misleading as a defence to a claim for breach of Clause 5.1.
5.3 Each Seller Warranty is to be construed independently and (except where this Agreement provides otherwise) is not limited by a provision of this Agreement or another Warranty.
5.4 Each of the Sellers represents and warrants to the Buyer that:
5.4.1 each of the Sellers is an entity duly organized and validly existing under the laws of its country of origin;
5.4.2 each of the Sellers has the legal right, full power and authority, and has taken all action necessary, to execute, deliver and to exercise its rights, and perform its obligations, under this Agreement and any other documents to be executed by each of the Sellers pursuant to or in connection with this Agreement, which when executed will constitute valid and binding obligations on each Seller and its asset management clients for whose account the Sale Shares are managed and who are the beneficial owners;
5.4.3 the Sale Shares are beneficially owned by the Sellers’ asset management clients in managed accounts over which the Sellers have investment discretion. To the best of the Sellers’ knowledge, there is no other person who has any legal or beneficial interest in the Sale Shares;
5.4.4 each of the Sellers is validly appointed as discretionary investment manager by the beneficial owners in respect of the Sale Shares;
5.4.5 the Sale Shares are beneficially owned by the Sellers’ asset management clients; to the best of the Sellers’ knowledge, the beneficial owners of the Sale Shares have the full legal right to sell the Sale Shares and which are free from any Encumbrances;
5.4.6 upon completion of the Scheme, the Sellers’ asset management clients will be the sole beneficial owners of the New Unicom Shares and the New Unicom ADSs;
5.4.7 each of the Sellers has not created or permitted the creation of any Encumbrance nor entered into any agreement, arrangement or obligation to create or give an Encumbrance, in relation to any of the Sale Shares, the New Unicom Shares and/or the New Unicom ADSs, and to the best of the Sellers’ knowledge, no person has claimed to be entitled to an Encumbrance in relation to any of the Sale Shares, the New Unicom Shares and/or the New Unicom ADSs;
5.4.8 to the extent it held proxy voting authority, each of the Sellers has tendered votes in respect of the Shares underlying the Sale Netcom ADSs in favour of the resolution approving the scheme of arrangement under section 166 of the Companies Ordinance (Cap 32 of the Laws of Hong Kong) between the Company and the shareholders of the Company at the extraordinary general meeting of the Company to be held on 17 September 2008, and any adjournment thereof;
5.4.9 the execution and delivery of, and the performance by each of the Sellers of its obligations under, this Agreement and any other documents to be executed by it pursuant to or in connection with this Agreement will not:
(a) result in a breach of any provision of the constitutional or organisational documents of each of the Sellers;
(b) result in a breach of or give any third party a right to terminate or modify, or result in the creation of any Encumbrance under, any agreement, licence or other instrument or result in a breach of any order, judgment or decree of any court, governmental agency or regulatory body to which each of the Sellers or its nominee is a party or by which any of the Sellers or its nominee or any of their respective assets is bound; or
(c) result in any breach of any contractual covenants or investment management agreement to which each of the Sellers is subject;
5.4.10 each of the Sellers is not a “connected fund manager” (as defined in the Takeovers Code) or a “connected principal trader” (as defined in the Takeovers Code) of the offeror (i.e. Unicom) or the offeree company (i.e. the Company) nor a party acting in concert with the offeror and that consent from the Executive Director of the Corporate Finance Division of the Securities & Futures Commission is not required for the sale of the Sale Shares;
5.4.11 each of the Sellers is not required to obtain any other person’s consent in relation to the sale of the Sale Shares, the New Unicom Shares and the New Unicom ADSs;
5.4.12 each of the Sellers is not a connected person (as such term is defined in the Rules Governing the Listing of Securities on The Hong Kong Stock Exchange Limited) of the Company or Unicom;
5.4.13 no petition has been presented or order made and no meeting convened or resolution passed for the winding up or administration of any of the Sellers or for a provisional liquidator to be appointed in respect of any of the Sellers;
5.4.14 no distress, execution or other process has been levied on any of the assets of any of the Sellers, and no judgment creditor nor any liquidator, provisional liquidator, receiver or an administrative receiver of any of the Sellers has been appointed and there is no reason to believe that such a person might be appointed;
5.4.15 no voluntary arrangement has been proposed in respect of any of the Sellers and their creditors; and
5.4.16 each of the Sellers is not insolvent, or unable to pay its debts, and has not stopped paying its debts as they fall due, and no event analogous to any of the foregoing has occurred in or outside Hong Kong.
5.5 The Buyer represents and warrants to the Sellers that each Buyer Warranty is true, accurate and not misleading at the date of this Agreement. Immediately before Closing, the Buyer is deemed to warrant to the Sellers that each Buyer Warranty is true, accurate and not misleading by reference to the facts and circumstances on each day before Closing, and for this purpose only, any references in the Buyer Warranties then existing) to the date of this Agreement shall be construed as references to the relevant date. Unless otherwise set out in this Agreement, no other warranty is given by the Buyer.
5.6 The Buyer acknowledges that each of the Sellers is entering into this Agreement in reliance on each Buyer Warranty which has also been given as a representation and with the intention of inducing the Sellers to enter into this Agreement. The Buyer shall not invoke the Sellers’ constructive become untrue or imputed knowledge of a fact or circumstance which might make a Buyer Warranty untrue, inaccurate or misleading as a defence in any respect which is material to a claim for breach the financial condition, trading position or prospects of Clause 5.5the Target.
5.7 6.6 The Buyer represents net profit or net loss of the Target during Interim Period (based on the audited accounts as at the Closing Audit Date prepared within 60 Business Days from Closing Date of the Target or as otherwise determined by the Seller and warrants the Purchaser according to the Sellers that:
5.7.1 disclosed financial report or management accounts of the Buyer is a corporation duly organized and validly existing under the laws of its country of origin;
5.7.2 the Buyer has the legal right, full power and authority, and has taken all action necessary, to execute, deliver and to exercise its rights, and perform its obligations, under this Agreement and any other documents to Target) shall be executed borne by the Buyer pursuant Seller. The amount of net profit of the Target during the Interim Period (if any) multiplied by 51% shall be paid in cash by the Purchaser to or in connection with this Agreement, which when executed will constitute valid and binding obligations on the Buyer;
5.7.3 the execution and delivery ofSeller, and the performance amount of net loss of the Target during the Interim Period (if any) multiplied by 51% shall be paid in cash by the Buyer of its obligations under, this Agreement and any other documents to be executed by it pursuant to or in connection with this Agreement will not:
(a) result in a breach of any provision of the constitutional or organisational documents of the Buyer; or
(b) result in a breach of or give any third party a right to terminate or modify, or result in the creation of any Encumbrance under, any agreement, licence or other instrument or result in a breach of any order, judgment or decree of any court, governmental agency or regulatory body to which the Buyer or its nominee is a party or by which any of the Buyer or its nominee or any of their respective assets is bound;
5.7.4 the Buyer is not required to obtain any other person’s consent in relation Seller to the acquisition of the Sale Shares;
5.7.5 no petition has been presented or order made and no meeting convened or resolution passed for the winding up or administration of the Buyer or for a provisional liquidator to be appointed in respect of the Buyer;
5.7.6 no distress, execution or other process has been levied on any of the assets of the Buyer, and no judgment creditor nor any liquidator, provisional liquidator, receiver or an administrative receiver of the Buyer has been appointed and there is no reason to believe that such a person might be appointed;
5.7.7 no voluntary arrangement has been proposed in respect of the Buyer and its creditors; and
5.7.8 the Buyer is not insolvent, or unable to pay its debts, and has not stopped paying its debts as they fall due, and no event analogous to any of the foregoing has occurred in or outside Hong KongPurchaser.
5.8 Each of the Sellers undertakes to the Buyer that it shall not dispose of or enter into any agreement or arrangement to dispose of or permit the disposal of any of the Sale Shares, the disposal of which is subject to its discretion from the date of this Agreement and until the Long Stop Date or the date when this Agreement is terminated in accordance with Clause 3.3, whichever is earlier.
5.9 Each of the Sellers further undertakes to the Buyer that it shall exercise or procure to be exercised all the voting rights attaching to the Sale Listed Shares in favour of the resolution approving the Scheme and the Share Proposal at the shareholders’ meeting of the Company to be held on 17 September 2008, and any adjournment thereof.
Appears in 1 contract
Sources: Share Purchase Agreement
REPRESENTATIONS, WARRANTIES AND UNDERTAKINGS. 5.1 10.1 Each of the Sellers represents Warrantors jointly and severally represents, warrants and undertakes to each of the Buyer Sole Sponsor, the Sole Overall Coordinator, the Joint Global Coordinators, the Joint Bookrunners, the Joint Lead Managers, the Syndicate CMIs and the Public Offer Underwriters in the terms set forth in Part A of Schedule 5 (save as disclosed in this Agreement, the Prospectus and the documents listed in Schedule 3 hereto), each of the Controlling Shareholders jointly and severally represents, warrants and undertakes to each of the Sole Sponsor, the Sole Overall Coordinator, the Joint Global Coordinators, the Joint Bookrunners, the Joint Lead Managers, the Syndicate CMIs and the Public Offer Underwriters in the terms set forth in Part B of Schedule 5, and accepts that each Seller of the Sole Sponsor, the Sole Overall Coordinator, the Joint Global Coordinators, the Joint Bookrunners, the Joint Lead Managers, the Syndicate CMIs and the Public Offer Underwriters is entering into this Agreement in reliance upon each such representation, warranty and undertaking.
10.2 Each Warranty is true, accurate shall be construed separately and shall not misleading be limited or restricted by reference to or inference from the terms of any other Warranty.
10.3 The Warranties are given on and as at the date of this Agreement. Immediately before Closing, each Agreement and will be deemed to be repeated as at:
(a) the date on which the Prospectus and the Application Form are registered by the Registrar of Companies in Hong Kong as required by section 342C of the Sellers is Companies (WUMP) Ordinance;
(b) the Prospectus Date and the date of the supplemental Prospectus (if any);
(c) the Acceptance Date;
(d) the Price Determination Date; and
(e) the time immediately prior to commencement of dealings in the Shares on the Stock Exchange, in each case with respect to the facts and circumstances subsisting as at such date. For the avoidance of doubt, nothing in this Clause 10.3 shall affect the on-going nature of the Warranties.
10.4 Each of the Company and the Covenantors jointly and severally undertakes to give notice to the Sole Sponsor, the Sole Overall Coordinator and the Joint Global Coordinators (for themselves and on behalf of the Public Offer Underwriters) forthwith of any matter or event coming to its or any of its respective directors’ (if appropriate) attention on or prior to any of the relevant dates on which the Warranties are deemed to warrant be given pursuant to Clause 10.3, which shows any of the Buyer that each Seller Warranty is trueWarranties to be or to have been untrue, accurate and not inaccurate or misleading or breached in any material respect.
10.5 If at any time, by reference to the facts and circumstances then subsisting, on each day before Closing, and for this purpose only any references in the Seller Warranties to the date of this Agreement shall be construed as references to the relevant date. Unless otherwise set out in this Agreement, no other warranty is given by the Sellers.
5.2 Each of the Sellers acknowledges that the Buyer is entering into this Agreement in reliance on each Seller Warranty which has also been given as a representation and with the intention of inducing the Buyer to enter into this Agreement. The Sellers shall not invoke the Buyer’s constructive or imputed knowledge of a fact or circumstance which might make a Seller Warranty untrue, inaccurate or misleading as a defence to a claim for breach of Clause 5.1.
5.3 Each Seller Warranty is to be construed independently and (except where this Agreement provides otherwise) is not limited by a provision of this Agreement or another Warranty.
5.4 Each of the Sellers represents and warrants to the Buyer that:
5.4.1 each of the Sellers is an entity duly organized and validly existing under the laws of its country of origin;
5.4.2 each of the Sellers has the legal right, full power and authority, and has taken all action necessary, to execute, deliver and to exercise its rights, and perform its obligations, under this Agreement and any other documents to be executed by each of the Sellers pursuant to or in connection with this Agreement, which when executed will constitute valid and binding obligations on each Seller and its asset management clients for whose account the Sale Shares are managed and who are the beneficial owners;
5.4.3 the Sale Shares are beneficially owned by the Sellers’ asset management clients in managed accounts over which the Sellers have investment discretion. To the best of the Sellers’ knowledge, there is no other person who has any legal or beneficial interest in the Sale Shares;
5.4.4 each of the Sellers is validly appointed as discretionary investment manager by the beneficial owners in respect of the Sale Shares;
5.4.5 the Sale Shares are beneficially owned by the Sellers’ asset management clients; to the best of the Sellers’ knowledge, the beneficial owners of the Sale Shares have the full legal right to sell the Sale Shares and which are free from any Encumbrances;
5.4.6 upon completion of the Scheme, the Sellers’ asset management clients will be the sole beneficial owners of the New Unicom Shares and the New Unicom ADSs;
5.4.7 each of the Sellers has not created or permitted the creation of any Encumbrance nor entered into any agreement, arrangement or obligation to create or give an Encumbrance, in relation prior to any of the Sale Sharesrelevant dates on which the Warranties are deemed to be given pursuant to Clause 10.3, any matter or event that comes to the attention of the Company, the New Unicom Shares and/or the New Unicom ADSs, and to the best of the Sellers’ knowledge, no person has claimed to be entitled to an Encumbrance in relation to Covenantors or any of the Sale Shares, the New Unicom Shares and/or the New Unicom ADSs;
5.4.8 to the extent it held proxy voting authority, each Public Offer Underwriters as a result of which any of the Sellers has tendered votes Warranties if repeated immediately after the occurrence of such matter or event, would in any material respect be untrue or inaccurate or misleading or breached or which would or might render untrue or inaccurate or misleading in any material respect any statement, whether of fact or opinion, contained in the Shares underlying Offering Documents if the Sale Netcom ADSs in favour same were issued immediately after the occurrence of the resolution approving the scheme of arrangement under section 166 of the Companies Ordinance (Cap 32 of the Laws of Hong Kong) between such matter or event, the Company and the shareholders Covenantors shall forthwith notify the Sole Sponsor, the Sole Overall Coordinator and the Joint Global Coordinators (for themselves and on behalf of the Company at Public Offer Underwriters) who shall forthwith notify the extraordinary general meeting Public Offer Underwriters of the same and, but without prejudice to any other rights of any party, the Covenantors, the Company, the Sole Sponsor, the Sole Overall Coordinator and the Joint Global Coordinators shall forthwith consult with a view to agreeing, if any of the Offering Documents has already been issued, published, distributed or made publicly available, the contents and the necessity of any announcement or circular or document, if any, should be issued, published, distributed or made publicly available or what other act or thing should be done. The Company and the Covenantors agree not to issue, publish, distribute or make publicly available any such announcement, circular or document without the prior written consent (which should not be held unreasonably withheld) of the Sole Sponsor, the Sole Overall Coordinator and the Joint Global Coordinators (for themselves and on 17 September 2008behalf of the Public Offer Underwriters) except as required by the applicable Laws.
10.6 Each of the Warrantors jointly and severally, will not, and any adjournment thereof;
5.4.9 the execution and delivery of, and the performance by each of the Sellers will procure that none of its obligations under, this Agreement and any other documents to be executed by it pursuant to or in connection with this Agreement will notAffiliates will:
(a) result in a breach of any provision of the constitutional do or organisational documents of each of the Sellers;
(b) result in a breach of or give any third party a right omit to terminate or modify, or result in the creation of any Encumbrance under, any agreement, licence or other instrument or result in a breach of any order, judgment or decree of any court, governmental agency or regulatory body do anything which is likely to which each of the Sellers or its nominee is a party or by which cause any of the Sellers representations, undertakings or its nominee or any of their respective assets is bound; or
(c) result warranties given pursuant to this Clause 10 to be untrue in any breach material respect at any time immediately prior to the commencement of any contractual covenants or investment management agreement to which each of the Sellers is subject;
5.4.10 each of the Sellers is not a “connected fund manager” (as defined dealing in the Takeovers Code) or a “connected principal trader” (as defined in Shares on the Takeovers Code) of the offeror (i.e. Unicom) or the offeree company (i.e. the Company) nor a party acting in concert with the offeror and that consent from the Executive Director of the Corporate Finance Division of the Securities & Futures Commission is not required for the sale of the Sale Shares;
5.4.11 each of the Sellers is not required to obtain any other person’s consent in relation to the sale of the Sale Shares, the New Unicom Shares and the New Unicom ADSs;
5.4.12 each of the Sellers is not a connected person (as such term is defined in the Rules Governing the Listing of Securities on The Hong Kong Stock Exchange Limited) of the Company (assuming such representations or Unicom;
5.4.13 no petition has been presented or order made and no meeting convened or resolution passed for the winding up or administration of any of the Sellers or for a provisional liquidator warranties to be appointed in respect of any of the Sellers;
5.4.14 no distress, execution or other process has been levied on any of the assets of any of the Sellers, and no judgment creditor nor any liquidator, provisional liquidator, receiver or an administrative receiver of any of the Sellers has been appointed and there is no reason to believe that such a person might be appointed;
5.4.15 no voluntary arrangement has been proposed in respect of any of the Sellers and their creditors; and
5.4.16 each of the Sellers is not insolvent, or unable to pay its debts, and has not stopped paying its debts as they fall due, and no event analogous to any of the foregoing has occurred in or outside Hong Kong.
5.5 The Buyer represents and warrants to the Sellers that each Buyer Warranty is true, accurate and not misleading repeated at the date of this Agreement. Immediately before Closing, the Buyer is deemed to warrant to the Sellers that each Buyer Warranty is true, accurate and not misleading by relevant time with reference to the facts and circumstances on each day before Closing, and for this purpose only, any references in the Buyer Warranties to the date of this Agreement shall be construed as references to the relevant date. Unless otherwise set out in this Agreement, no other warranty is given by the Buyer.
5.6 The Buyer acknowledges that each of the Sellers is entering into this Agreement in reliance on each Buyer Warranty which has also been given as a representation and with the intention of inducing the Sellers to enter into this Agreement. The Buyer shall not invoke the Sellers’ constructive or imputed knowledge of a fact or circumstance which might make a Buyer Warranty untrue, inaccurate or misleading as a defence to a claim for breach of Clause 5.5.
5.7 The Buyer represents and warrants to the Sellers that:
5.7.1 the Buyer is a corporation duly organized and validly existing under the laws of its country of origin;
5.7.2 the Buyer has the legal right, full power and authority, and has taken all action necessary, to execute, deliver and to exercise its rights, and perform its obligations, under this Agreement and any other documents to be executed by the Buyer pursuant to or in connection with this Agreement, which when executed will constitute valid and binding obligations on the Buyer;
5.7.3 the execution and delivery of, and the performance by the Buyer of its obligations under, this Agreement and any other documents to be executed by it pursuant to or in connection with this Agreement will not:
(a) result in a breach of any provision of the constitutional or organisational documents of the Buyerthen subsisting); or
(b) result in a breach at any time immediately prior to the commencement of or give any third party a right to terminate or modify, or result dealings in the creation of any Encumbrance under, any agreement, licence or other instrument or result in a breach of any order, judgment or decree of any court, governmental agency or regulatory body to which Shares on the Buyer or its nominee is a party or by which any of the Buyer or its nominee or any of their respective assets is bound;
5.7.4 the Buyer is not required to obtain any other person’s consent in relation to the acquisition of the Sale Shares;
5.7.5 no petition has been presented or order made and no meeting convened or resolution passed for the winding up or administration of the Buyer or for a provisional liquidator to be appointed in respect of the Buyer;
5.7.6 no distress, execution or other process has been levied on any of the assets of the Buyer, and no judgment creditor nor any liquidator, provisional liquidator, receiver or an administrative receiver of the Buyer has been appointed and there is no reason to believe that such a person might be appointed;
5.7.7 no voluntary arrangement has been proposed in respect of the Buyer and its creditors; and
5.7.8 the Buyer is not insolvent, or unable to pay its debts, and has not stopped paying its debts as they fall due, and no event analogous to any of the foregoing has occurred in or outside Hong Kong.
5.8 Each of the Sellers undertakes to the Buyer that it shall not dispose of or Stock Exchange enter into any agreement contract or arrangement commitment of an unusual or onerous nature, whether or not that contract or commitment, if entered into prior to dispose of the date hereof, would constitute a material contract or permit a material commitment for the disposal of any purpose of the Sale Shares, the disposal of which is subject to its discretion from the date of this Agreement and until the Long Stop Date or the date when this Agreement is terminated in accordance with Clause 3.3, whichever is earlierProspectus.
5.9 Each 10.7 The Warranties shall remain in full force and effect notwithstanding completion of the Sellers further undertakes all matters and arrangements referred to the Buyer that it shall exercise in or procure to be exercised all the voting rights attaching to the Sale Listed Shares in favour of the resolution approving the Scheme and the Share Proposal at the shareholders’ meeting of the Company to be held on 17 September 2008, and any adjournment thereofcontemplated by this Agreement.
Appears in 1 contract
Sources: Public Offer Underwriting Agreement
REPRESENTATIONS, WARRANTIES AND UNDERTAKINGS. 5.1 Each of the Sellers represents 4.1.1 Save for all matters and warrants to the Buyer that each Seller Warranty is true, accurate and not misleading at the date of this Agreement. Immediately before Closing, each of the Sellers is deemed to warrant to the Buyer that each Seller Warranty is true, accurate and not misleading by reference to the facts and circumstances on each day before Closing, and for this purpose only any references in the Seller Warranties to the date of this Agreement shall be construed as references to the relevant date. Unless otherwise set out information disclosed or contained in this Agreement, no other warranty is given by the SellersVendor represents and warrants and undertakes to the Purchaser in the terms set out in Schedule 4.
5.2 4.1.2 Each of the Sellers acknowledges that the Buyer is entering into warranties, representations and undertakings contained in this Agreement will remain in reliance on full force and effect beyond and notwithstanding Completion and are each Seller Warranty which has also been given as a representation and with the intention of inducing the Buyer to enter into this Agreement. The Sellers shall not invoke the Buyer’s constructive or imputed knowledge of a fact or circumstance which might make a Seller Warranty untrue, inaccurate or misleading as a defence to a claim for breach of Clause 5.1.
5.3 Each Seller Warranty is to be construed independently and (except where this Agreement provides otherwise) is not limited by a provision of this Agreement or another Warranty.
5.4 Each of the Sellers represents and warrants to the Buyer that:
5.4.1 each of the Sellers is an entity duly organized and validly existing under the laws of its country of origin;
5.4.2 each of the Sellers has the legal right, full power and authority, and has taken all action necessary, to execute, deliver and to exercise its rights, and perform its obligations, under this Agreement and any other documents to be executed by each of the Sellers pursuant to or in connection with this Agreement, which when executed will constitute valid and binding obligations on each Seller and its asset management clients for whose account the Sale Shares are managed and who are the beneficial owners;
5.4.3 the Sale Shares are beneficially owned by the Sellers’ asset management clients in managed accounts over which the Sellers have investment discretion. To the best of the Sellers’ knowledge, there is no other person who has any legal or beneficial interest in the Sale Shares;
5.4.4 each of the Sellers is validly appointed as discretionary investment manager by the beneficial owners in respect of the Sale Shares;
5.4.5 the Sale Shares are beneficially owned by the Sellers’ asset management clients; to the best of the Sellers’ knowledge, the beneficial owners of the Sale Shares have the full legal right to sell the Sale Shares and which are free from any Encumbrances;
5.4.6 upon completion of the Scheme, the Sellers’ asset management clients will be the sole beneficial owners of the New Unicom Shares and the New Unicom ADSs;
5.4.7 each of the Sellers has not created or permitted the creation of any Encumbrance nor entered into any agreement, arrangement or obligation to create or give an Encumbrance, in relation made without prejudice to any of the Sale Sharesothers.
4.1.3 Without prejudice to Clause 2.1(i), the New Unicom Shares and/or the New Unicom ADSs, and to the best of the Sellers’ knowledge, no person has claimed to be entitled to an Encumbrance in relation to any of the Sale Shares, the New Unicom Shares and/or the New Unicom ADSs;
5.4.8 to the extent it held proxy voting authority, each of the Sellers has tendered votes in respect of the Shares underlying the Sale Netcom ADSs in favour of the resolution approving the scheme of arrangement under section 166 of the Companies Ordinance (Cap 32 of the Laws of Hong Kong) between the Company and the shareholders of the Company at the extraordinary general meeting of the Company to be held on 17 September 2008, and any adjournment thereof;
5.4.9 the execution and delivery of, and the performance by each of the Sellers of its obligations under, this Agreement and any other documents to be executed by it pursuant to or in connection with this Agreement will notif:
(a) result the Vendor is in a material breach of any provision of the constitutional or organisational documents of each of the Sellers;Warranties; or
(b) there shall occur any act or event which upon Completion would or might reasonably be expected to result in a breach of or give any third party a right to terminate or modify, or result in the creation of any Encumbrance under, any agreement, licence or other instrument or result in a material breach of any order, judgment or decree of any court, governmental agency or regulatory body to which each of the Sellers or its nominee is a party or by which any of the Sellers or its nominee or any of their respective assets is boundWarranties were they repeated immediately prior to Completion; or
(c) result there is any material breach or non-fulfilment by the Vendor of its obligations under this Agreement, which in any such case is incapable of remedy or, if capable of remedy, is not remedied by the Vendor by the Completion Date or (if earlier) within seven days after notice thereof from the Purchaser requiring the same to be remedied then in any such case the Purchaser shall be entitled (in addition and without prejudice to any other rights or remedies it may have against the Vendor under this Agreement or otherwise) to elect by notice in writing to the Vendor not to complete the purchase of the Sale Share and the Shareholder’s Loan, in which event:
a. the Vendor shall return to the Purchaser all the deposits paid herein in full within 7 days from the date of such notification without compensation cost or interest;
b. this Agreement shall automatically terminate save that the rights and liabilities of the parties which have accrued prior to termination shall continue to subsist, including those under Clauses 7 to 10; and
c. in addition and without prejudice to any other rights or remedies the Purchaser may have against the Vendor, the Vendor shall indemnify the Purchaser against all costs, charges and expenses reasonably incurred by it in connection with the proposed sale and purchase of the Sale Share and the Shareholder’s Loan.
4.1.4 The provisions of this Clause shall operate to limit the liability of the Vendor under or in connection with the Warranties and the said liability of the Vendor being hereinafter referred to as “such liabilities”:-
(a) no claim in respect of such liabilities shall be made by the Purchaser (in the absence of fraud) after the expiration of a period of 2 years of the Completion Date;
(b) the Vendor shall be under no liability in respect of any breach of any contractual covenants the Warranties:
a. if such liability would not have arisen but for something voluntarily done or investment management agreement omitted to which each be done (other than pursuant to a legally binding commitment created on or before Completion) by the Purchaser or the Company after Completion otherwise than in the ordinary course of business; or
b. to the Sellers extent that such liability arises or is subject;increased as a result only of an increase in rates of taxation made after Completion with retrospective effect; or
5.4.10 each of c. to the Sellers is not a “connected fund manager” extent that it has already been provided for in the Completion Accounts (as defined in Clause 5.5).
(c) the Takeovers Codeaggregate amount of the liability of the Vendor in respect of all the claims in aggregate for breach of the Warranties shall not exceed the Consideration;
(d) or a “connected principal trader” (as defined in the Takeovers Code) of event that the offeror (i.e. Unicom) or the offeree company (i.e. the Company) nor a party acting in concert with the offeror and that consent from the Executive Director of the Corporate Finance Division of the Securities & Futures Commission is not required for the sale of the Sale Shares;
5.4.11 each of the Sellers is not required to obtain any other person’s consent in relation to the sale of the Sale Shares, the New Unicom Shares and the New Unicom ADSs;
5.4.12 each of the Sellers is not a connected person (as such term is defined in the Rules Governing the Listing of Securities on The Hong Kong Stock Exchange Limited) of Purchaser and/or the Company or Unicom;
5.4.13 no petition has been presented or order made and no meeting convened or resolution passed for the winding up or administration of actually recover any of the Sellers or for a provisional liquidator to be appointed sum from any third party in respect of any of the Sellers;
5.4.14 no distress, execution or other process matter for which a claim has been levied on any of the assets of any of the Sellers, and no judgment creditor nor any liquidator, provisional liquidator, receiver or an administrative receiver of any of the Sellers has been appointed and there is no reason to believe that such a person might could be appointed;
5.4.15 no voluntary arrangement has been proposed made in respect of such liabilities and which such sum would not have been recoverable but for the matter for which a claim has been or could be so made then the Purchaser and/or the Company shall (as the case may be) as soon as practicable repay such sum so recovered and actually received from such third party or give credit for the same in calculating the amount of such liabilities but after having deducted the amount of any costs and expenses properly incurred in the recovery thereof PROVIDED THAT any amount repaid or for which credit is given shall not exceed that of the Sellers and their creditors; and
5.4.16 each amount of the Sellers is not insolventclaim or claims made against the Vendor;
(e) if the Purchaser and/or the Company shall become aware of any claim in respect of such liabilities, it shall promptly give notice thereof to the Vendor and shall (if the Vendor shall indemnify and secure the Purchaser and/or the Company against any liability, costs, damages or unable expenses which may be incurred thereby) take such action as the Vendor may reasonably request (but subject always to pay its debts, the Purchaser and/or the Company being prior indemnified by the Vendor against all reasonable costs and has not stopped paying its debts as they fall due, and no event analogous disbursements of or in relation to any such steps to be taken) to avoid, resist, mitigate or compromise the claim provided that neither the Purchaser nor the Company shall be required to take any steps which would require any admission of guilt or liability relating to matters connected with the Claim in question;
(f) the Vendor shall not be liable in respect of a claim under any provision of this Agreement if and to the extent that the loss is or has been recovered under any other provision of this Agreement;
(g) nothing in this Agreement shall be deemed to relieve the Purchaser from a duty to the Vendor to take reasonable steps to mitigate its loss;
(h) no claim shall be allowable:-
a. if the claim is in respect of Taxation which arises in the ordinary course of business of the foregoing has occurred in or outside Hong Kong.Company since the Completion Date;
5.5 The Buyer represents b. if and warrants to the Sellers extent that each Buyer Warranty is true, accurate and any such claim occurs as a result of any legislation not misleading in force at the date of this Agreement. Immediately before Closing, the Buyer is deemed to warrant to the Sellers that each Buyer Warranty is true, accurate and not misleading by reference to the facts and circumstances on each day before Closing, and for this purpose only, any references in the Buyer Agreement which takes effect retrospectively;
(i) All Warranties to the date of this Agreement shall be construed as references to the relevant date. Unless otherwise set out in this Agreement, no other warranty is given by the Buyer.
5.6 The Buyer acknowledges that each of the Sellers is entering into this Agreement in reliance on each Buyer Warranty which has also been given as a representation and with the intention of inducing the Sellers to enter into this Agreement. The Buyer Vendor herein shall not invoke the Sellers’ constructive or imputed knowledge of a fact or circumstance which might make a Buyer Warranty untrue, inaccurate or misleading as a defence to a claim for breach of Clause 5.5.
5.7 The Buyer represents and warrants to the Sellers that:
5.7.1 the Buyer is a corporation duly organized and validly existing under the laws of its country of origin;
5.7.2 the Buyer has the legal right, full power and authority, and has taken all action necessary, to execute, deliver and to exercise its rights, and perform its obligations, under this Agreement and any other documents to be executed by the Buyer pursuant to or in connection with this Agreement, which when executed will constitute valid and binding obligations on the Buyer;
5.7.3 the execution and delivery of, and the performance by the Buyer of its obligations under, this Agreement and any other documents to be executed by it pursuant to or in connection with this Agreement will not:
(a) result in a breach of any provision of the constitutional or organisational documents of the Buyer; or
(b) result in a breach of or give any third party a right to terminate or modify, or result in the creation of any Encumbrance under, any agreement, licence or other instrument or result in a breach of any order, judgment or decree of any court, governmental agency or regulatory body to which the Buyer or its nominee is a party or by which any of the Buyer or its nominee or any of their respective assets is bound;
5.7.4 the Buyer is not required to obtain any other person’s consent in relation to the acquisition of the Sale Shares;
5.7.5 no petition has been presented or order made and no meeting convened or resolution passed for the winding up or administration of the Buyer or survive for a provisional liquidator to be appointed in respect period of the Buyer;
5.7.6 no distress, execution or other process has been levied on any of the assets of the Buyer, and no judgment creditor nor any liquidator, provisional liquidator, receiver or an administrative receiver of the Buyer has been appointed and there is no reason to believe that such a person might be appointed;
5.7.7 no voluntary arrangement has been proposed in respect of the Buyer and its creditors; and
5.7.8 the Buyer is not insolvent, or unable to pay its debts, and has not stopped paying its debts as they fall due, and no event analogous to any of the foregoing has occurred in or outside Hong Kong.
5.8 Each of the Sellers undertakes to the Buyer that it shall not dispose of or enter into any agreement or arrangement to dispose of or permit the disposal of any of the Sale Shares, the disposal of which is subject to its discretion 2 years from the date of this Agreement and until the Long Stop Date or the date when this Agreement is terminated in accordance with Clause 3.3, whichever is earlierCompletion Date.
5.9 Each of the Sellers further undertakes to the Buyer that it shall exercise or procure to be exercised all the voting rights attaching to the Sale Listed Shares in favour of the resolution approving the Scheme and the Share Proposal at the shareholders’ meeting of the Company to be held on 17 September 2008, and any adjournment thereof.
Appears in 1 contract
REPRESENTATIONS, WARRANTIES AND UNDERTAKINGS. 5.1 Each of the Sellers represents The Warrantor will represent, warrant and warrants undertake to the Buyer that each Seller Warranty is true, accurate and not misleading at the date of this Agreement. Immediately before Closing, each of the Sellers is deemed to warrant to the Buyer that each Seller Warranty is true, accurate and not misleading by reference to the facts and circumstances on each day before Closing, and for this purpose only any references Purchaser in the Seller Warranties to the date of this Agreement shall be construed as references to the relevant date. Unless otherwise terms set out in this Agreement, no other warranty is given by Schedule IV (subject to the Sellers.
5.2 Each of matters fully and fairly disclosed in the Sellers acknowledges Disclosure Letter) and agree and acknowledge that the Buyer Purchaser is entering into this Agreement in reliance on each Seller the Warranties. Each of the Warranties is separate and independent; no Warranty which has also been given as a representation and with the intention is limited by reference to any other Warranty or part of inducing the Buyer to enter into this Agreement. .
5.2 The Sellers Warranties shall not invoke the Buyer’s constructive in any respect be extinguished or imputed knowledge of a fact or circumstance which might make a Seller Warranty untrue, inaccurate or misleading as a defence to a claim for breach of Clause 5.1affected by Completion.
5.3 Each Seller Warranty is to be construed independently The rights and (except where this Agreement provides otherwise) is not limited by a provision of this Agreement or another Warranty.
5.4 Each remedies of the Sellers represents and warrants to the Buyer that:
5.4.1 each of the Sellers is an entity duly organized and validly existing under the laws of its country of origin;
5.4.2 each of the Sellers has the legal right, full power and authority, and has taken all action necessary, to execute, deliver and to exercise its rights, and perform its obligations, under this Agreement and any other documents to be executed by each of the Sellers pursuant to or in connection with this Agreement, which when executed will constitute valid and binding obligations on each Seller and its asset management clients for whose account the Sale Shares are managed and who are the beneficial owners;
5.4.3 the Sale Shares are beneficially owned by the Sellers’ asset management clients in managed accounts over which the Sellers have investment discretion. To the best of the Sellers’ knowledge, there is no other person who has any legal or beneficial interest in the Sale Shares;
5.4.4 each of the Sellers is validly appointed as discretionary investment manager by the beneficial owners Purchaser in respect of the Sale Shares;Warranties shall not be affected by any investigation made by or on behalf of the Purchaser into the affairs of the Company.
5.4.5 the Sale Shares are beneficially owned 5.4 Any claim by the Sellers’ asset management clients; to the best of the Sellers’ knowledge, the beneficial owners of the Sale Shares have the full legal right to sell the Sale Shares and which are free from any Encumbrances;
5.4.6 upon completion of the Scheme, the Sellers’ asset management clients will be the sole beneficial owners of the New Unicom Shares and the New Unicom ADSs;
5.4.7 each of the Sellers has not created or permitted the creation of any Encumbrance nor entered into any agreement, arrangement or obligation to create or give an Encumbrance, in relation to any of the Sale Shares, the New Unicom Shares and/or the New Unicom ADSs, and to the best of the Sellers’ knowledge, no person has claimed to be entitled to an Encumbrance in relation to any of the Sale Shares, the New Unicom Shares and/or the New Unicom ADSs;
5.4.8 to the extent it held proxy voting authority, each of the Sellers has tendered votes Purchaser in respect of the Shares underlying Warranties shall be limited as provided for in Schedule V.
5.5 The Purchaser shall as soon as reasonably practicable inform the Sale Netcom ADSs Vendors in favour writing of any event which comes to the notice of the resolution approving Purchaser whereby it appears to the scheme of arrangement Purchaser that the Warrantors are or may become liable to make any payment under section 166 the Warranties, but failure by the Purchaser to comply with this provision shall not affect the Warrantors' obligations under Clause 5.
5.6 Without prejudice to the Purchaser's right to seek redress or recover damages upon any basis from time to time available to it, the Warrantors may be required to pay to the Purchaser an amount equal to (at the Purchaser's option) the amount by which the value of the Companies Ordinance (Cap 32 of the Laws of Hong Kong) between the Company and the shareholders assets or income of the Company at is diminished or the extraordinary general meeting liabilities (actual or contingent) or expenditure of the Company to be held on 17 September 2008, and any adjournment thereof;
5.4.9 the execution and delivery of, and the performance by each is increased which arises as a result of the Sellers of its obligations under, this Agreement and any other documents to be executed by it pursuant to or in connection with this Agreement will not:
(a) result in a breach of any provision of the constitutional or organisational documents of each of the Sellers;
(b) result in a breach of or give any third party a right to terminate or modify, or result in the creation of any Encumbrance under, any agreement, licence or other instrument or result in a breach of any order, judgment or decree of any court, governmental agency or regulatory body to which each of the Sellers or its nominee is a party or by which any of the Sellers or its nominee or any of their respective assets is bound; or
(c) result in any breach of any contractual covenants or investment management agreement to which each of the Sellers is subject;
5.4.10 each of the Sellers is not a “connected fund manager” (as defined in the Takeovers Code) or a “connected principal trader” (as defined in the Takeovers Code) of the offeror (i.e. Unicom) or the offeree company (i.e. the Company) nor a party acting in concert with the offeror and that consent from the Executive Director of the Corporate Finance Division of the Securities & Futures Commission is not required for the sale of the Sale Shares;
5.4.11 each of the Sellers is not required to obtain any other person’s consent in relation to the sale of the Sale Shares, the New Unicom Shares and the New Unicom ADSs;
5.4.12 each of the Sellers is not a connected person (as such term is defined in the Rules Governing the Listing of Securities on The Hong Kong Stock Exchange Limited) actual circumstances of the Company or Unicom;
5.4.13 no petition has been presented or order made and no meeting convened or resolution passed for the winding up or administration of and/or any of its affairs being otherwise than as warranted in Schedule IV.
5.7 The Warrantors undertake to the Sellers or for a provisional liquidator to be appointed Purchaser that each will waive all rights each may have in respect of any of misrepresentation, inaccuracy or omission in or from information supplied to it by the Sellers;
5.4.14 no distressCompany, execution or other process has been levied on its employees in connection with the Warranties, the Disclosure Letter or taxation and each undertakes not to make any of the assets of claims against any of the Sellers, and no judgment creditor nor any liquidator, provisional liquidator, receiver or an administrative receiver of any of the Sellers has been appointed and there is no reason to believe that such a person might be appointed;
5.4.15 no voluntary arrangement has been proposed in respect of any of the Sellers and their creditors; and
5.4.16 each of the Sellers is not insolventsuch misrepresentation, inaccuracy or unable to pay its debts, and has not stopped paying its debts as they fall due, and no event analogous to any of the foregoing has occurred in or outside Hong Kongomission.
5.5 The Buyer represents and warrants to the Sellers that each Buyer Warranty is true, accurate and not misleading at the date of this Agreement. Immediately before Closing, the Buyer is deemed to warrant to the Sellers that each Buyer Warranty is true, accurate and not misleading by reference to the facts and circumstances on each day before Closing, and for this purpose only, any references 5.8 Nothing in the Buyer Warranties to the date of this Agreement shall be construed as references to the relevant date. Unless otherwise set out in this Agreement, no other warranty is given by the Buyerexclude liability for fraud or dishonesty.
5.6 The Buyer acknowledges that each of the Sellers is entering into this Agreement in reliance on each Buyer Warranty which has also been given as a representation and with the intention of inducing the Sellers to enter into this Agreement. The Buyer shall not invoke the Sellers’ constructive or imputed knowledge of a fact or circumstance which might make a Buyer Warranty untrue, inaccurate or misleading as a defence to a claim for breach of Clause 5.5.
5.7 The Buyer represents and warrants to the Sellers that:
5.7.1 the Buyer is a corporation duly organized and validly existing under the laws of its country of origin;
5.7.2 the Buyer has the legal right, full power and authority, and has taken all action necessary, to execute, deliver and to exercise its rights, and perform its obligations, under this Agreement and any other documents to be executed by the Buyer pursuant to or in connection with this Agreement, which when executed will constitute valid and binding obligations on the Buyer;
5.7.3 the execution and delivery of, and the performance by the Buyer of its obligations under, this Agreement and any other documents to be executed by it pursuant to or in connection with this Agreement will not:
(a) result in a breach of any provision of the constitutional or organisational documents of the Buyer; or
(b) result in a breach of or give any third party a right to terminate or modify, or result in the creation of any Encumbrance under, any agreement, licence or other instrument or result in a breach of any order, judgment or decree of any court, governmental agency or regulatory body to which the Buyer or its nominee is a party or by which any of the Buyer or its nominee or any of their respective assets is bound;
5.7.4 the Buyer is not required to obtain any other person’s consent in relation to the acquisition of the Sale Shares;
5.7.5 no petition has been presented or order made and no meeting convened or resolution passed for the winding up or administration of the Buyer or for a provisional liquidator to be appointed in respect of the Buyer;
5.7.6 no distress, execution or other process has been levied on any of the assets of the Buyer, and no judgment creditor nor any liquidator, provisional liquidator, receiver or an administrative receiver of the Buyer has been appointed and there is no reason to believe that such a person might be appointed;
5.7.7 no voluntary arrangement has been proposed in respect of the Buyer and its creditors; and
5.7.8 the Buyer is not insolvent, or unable to pay its debts, and has not stopped paying its debts as they fall due, and no event analogous to any of the foregoing has occurred in or outside Hong Kong.
5.8 Each of the Sellers undertakes to the Buyer that it shall not dispose of or enter into any agreement or arrangement to dispose of or permit the disposal of any of the Sale Shares, the disposal of which is subject to its discretion from the date of this Agreement and until the Long Stop Date or the date when this Agreement is terminated in accordance with Clause 3.3, whichever is earlier.
5.9 Each of the Sellers further undertakes to the Buyer that it shall exercise or procure to be exercised all the voting rights attaching to the Sale Listed Shares in favour of the resolution approving the Scheme and the Share Proposal at the shareholders’ meeting of the Company to be held on 17 September 2008, and any adjournment thereof.
Appears in 1 contract
Sources: Acquisition Agreement (Mailkey Corp)
REPRESENTATIONS, WARRANTIES AND UNDERTAKINGS. 5.1 Each 19.1. You hereby undertake, represent and warrant on a continuing basis that:
(a) the information given by you, or on your behalf, to Webull in the Account Opening Form or otherwise in connection with the opening of the Sellers represents any Account(s) is and warrants to the Buyer that each Seller Warranty is remains at all times true, accurate full and not misleading at the date of this Agreement. Immediately before Closing, each of the Sellers is deemed to warrant to the Buyer that each Seller Warranty is true, accurate complete and not misleading by reference to the facts and circumstances on each day before Closing, and for this purpose only any references in the Seller Warranties to the date of this Agreement Webull shall be construed as references entitled to rely on such information until ▇▇▇▇▇▇ receives written notice from you of any changes thereto;
(b) you have the relevant date. Unless otherwise set out in this Agreement, no other warranty is given by the Sellers.
5.2 Each of the Sellers acknowledges that the Buyer is entering into this Agreement in reliance on each Seller Warranty which has also been given as a representation authority and with the intention of inducing the Buyer capacity to enter into and execute this Agreement. The Sellers shall not invoke Client Agreement and no one except you (unless otherwise disclosed to Webull pursuant to Clause 22.1) has an interest in the Buyer’s constructive or imputed knowledge of a fact or circumstance which might make a Seller Warranty untrue, inaccurate or misleading Account(s);
(c) save as disclosed by you to Webull pursuant to Clause 22.1 with the consent given by Webull:
(i) you enter this Client Agreement as a defence principal and are trading on your own account and not as nominee or trustee for any other person and there exist no arrangements whereby any person other than you has or will have any beneficial interest in this Client Agreement; and
(ii) you are the ultimate beneficiary of the Account and the person ultimately responsible for originating any Instruction(s) about Transactions;
(d) this Client Agreement and its performance and the obligations contained in it do not and will not contravene any Applicable Laws and Regulations, contravene any provisions of the memorandum and articles or by-laws (for corporate client), or constitute a breach or default under any agreement or arrangement you are bound;
(e) subject to a claim for breach any security interest of Clause 5.1.
5.3 Each Seller Warranty is any Affiliate and the information disclosed to be construed independently and (except where this Agreement provides otherwise) is Webull, all properties including but not limited to securities provided by a provision of this Agreement you for selling or another Warranty.crediting into the Account(s) are fully paid with valid and good title and whose legal and beneficial titles are owned by you and you will not charge, pledge or allow to subsist any charge or pledge or grant any option over such properties without Webull’s prior consent;
5.4 Each (f) you have received, read and understood the contents of the Sellers represents Risk Disclosure Statement and warrants you have sufficient experience to assess the Buyer that:
5.4.1 each suitability of the Sellers Transactions contemplated under this Client Agreement;
(g) where you or any one of you is an entity a body corporate (in respect of such person):
(i) it is a corporation duly organized and is validly existing under the laws of its the country of originits incorporation and in every other country where it is carrying on business;
5.4.2 each (ii) this Client Agreement has been validly authorized by the appropriate corporate action of the Sellers has the legal right, full power you and authority, and has taken all action necessary, to execute, deliver and to exercise its rights, and perform its obligations, under this Agreement and any other documents to be executed by each of the Sellers pursuant to or in connection with this Agreement, which when executed and delivered will constitute valid and binding obligations on each Seller and its asset management clients for whose account of you in accordance with the Sale Shares are managed and who are the beneficial ownersterms herein;
5.4.3 (iii) the Sale Shares certified true copies of your certificate of incorporation or registration, charter, statute or memorandum and articles or other instrument constituting or defining your constitution and your board resolutions delivered to Webull are beneficially owned true and accurate and still in force; and
(iv) no steps have been taken or are being taken to appoint a receiver and/or manager or liquidator over your assets of, or to institute winding-up proceeding or to or obtain winding-up order against you;
(h) where you or any one of you is an individual, you are legally capable of validly entering into and performing this Client Agreement and are of sound mind and legal competence and are not a bankrupt;
(i) where you are a partnership and business is carried on under a firm's name, this Client Agreement shall continue to be valid and binding for all purposes notwithstanding any change in the partnership or constitution of the firm by the Sellers’ asset management clients introduction of a new partner or by the death, incapacity or bankruptcy or a retirement of any partner for the time being carrying on the business o f or constituting the firm or otherwise; and
(j) any Authorized Person and any person representing you in managed accounts over which entering into any Transaction will have been duly authorized to do so on your behalf.
19.2. You undertake to notify Webull immediately in writing, by such means as Webull may from time to time prescribe, upon the Sellers have investment discretion. To the best occurrence of the Sellers’ knowledge, there is no other person who has any legal or beneficial interest material changes in the Sale Shares;
5.4.4 each of information supplied in this Client Agreement and/or the Sellers is validly appointed as discretionary investment manager by the beneficial owners in respect of the Sale Shares;
5.4.5 the Sale Shares are beneficially owned by the Sellers’ asset management clients; Account Opening Form. In particular, you agree to the best of the Sellers’ knowledge, the beneficial owners of the Sale Shares have the full legal right to sell the Sale Shares and which are free from any Encumbrances;
5.4.6 upon completion of the Scheme, the Sellers’ asset management clients will be the sole beneficial owners of the New Unicom Shares and the New Unicom ADSs;
5.4.7 each of the Sellers has not created or permitted the creation inform ▇▇▇▇▇▇ of any Encumbrance nor entered into change in contact information (including address and telephone number) upon occurrence of such changes. In event that in exercising its rights or discharging its duties under this Client Agreement, Webull cannot communicate with you using the latest contact details provided by you for over a period of seven (7) business days, you agree that this provides sufficient evidence of material breach of this Client Agreement by you which constitutes an Event of Default under Clause 12.1(j).
19.3. Webull will notify you of any agreement, arrangement or obligation to create or give an Encumbrance, in relation to any of the Sale Shares, the New Unicom Shares and/or the New Unicom ADSs, and to the best of the Sellers’ knowledge, no person has claimed to be entitled to an Encumbrance in relation to any of the Sale Shares, the New Unicom Shares and/or the New Unicom ADSs;
5.4.8 to the extent it held proxy voting authority, each of the Sellers has tendered votes in respect of the Shares underlying the Sale Netcom ADSs in favour of the resolution approving the scheme of arrangement under section 166 of the Companies Ordinance (Cap 32 of the Laws of Hong Kong) between the Company and the shareholders of the Company at the extraordinary general meeting of the Company to be held on 17 September 2008, and any adjournment thereof;
5.4.9 the execution and delivery of, and the performance by each of the Sellers of its obligations under, this Agreement and any other documents to be executed by it pursuant to or in connection with this Agreement will not:
material change to: (a) result in a breach the name and address of any provision of the constitutional or organisational documents of each of the Sellers;
its business; (b) result in a breach of or give any third party a right to terminate or modify, or result in its licensing status with the creation of any Encumbrance under, any agreement, licence or other instrument or result in a breach of any order, judgment or decree of any court, governmental agency or regulatory body to which each of the Sellers or its nominee is a party or by which any of the Sellers or its nominee or any of their respective assets is boundSC; or
(c) result in any breach of any contractual covenants or investment management agreement to which each the description of the Sellers is subject;
5.4.10 each nature of the Sellers is not a “connected fund manager” (as defined in the Takeovers Code) or a “connected principal trader” (as defined in the Takeovers Code) of the offeror (i.e. Unicom) or the offeree company (i.e. the Company) nor a party acting in concert with the offeror and that consent from the Executive Director of the Corporate Finance Division of the Securities & Futures Commission is not required for the sale of the Sale Shares;
5.4.11 each of the Sellers is not required to obtain any other person’s consent in relation to the sale of the Sale Shares, the New Unicom Shares and the New Unicom ADSs;
5.4.12 each of the Sellers is not a connected person (as such term is defined in the Rules Governing the Listing of Securities on The Hong Kong Stock Exchange Limited) of the Company or Unicom;
5.4.13 no petition has been presented or order made and no meeting convened or resolution passed for the winding up or administration of any of the Sellers or for a provisional liquidator to be appointed in respect of any of the Sellers;
5.4.14 no distress, execution or other process has been levied on any of the assets of any of the Sellers, and no judgment creditor nor any liquidator, provisional liquidator, receiver or an administrative receiver of any of the Sellers has been appointed and there is no reason to believe that such a person might be appointed;
5.4.15 no voluntary arrangement has been proposed in respect of any of the Sellers and their creditors; and
5.4.16 each of the Sellers is not insolvent, or unable to pay its debts, and has not stopped paying its debts as they fall due, and no event analogous to any of the foregoing has occurred in or outside Hong Kong.
5.5 The Buyer represents and warrants to the Sellers that each Buyer Warranty is true, accurate and not misleading at the date of this Agreement. Immediately before Closing, the Buyer is deemed to warrant to the Sellers that each Buyer Warranty is true, accurate and not misleading services provided by reference to the facts and circumstances on each day before Closing, and for this purpose only, any references in the Buyer Warranties to the date of this Agreement shall be construed as references to the relevant date. Unless otherwise set out in this Agreement, no other warranty is given by the Buyer.
5.6 The Buyer acknowledges that each of the Sellers is entering into this Agreement in reliance on each Buyer Warranty which has also been given as a representation and with the intention of inducing the Sellers to enter into this Agreement. The Buyer shall not invoke the Sellers’ constructive or imputed knowledge of a fact or circumstance which might make a Buyer Warranty untrue, inaccurate or misleading as a defence to a claim for breach of Clause 5.5.
5.7 The Buyer represents and warrants to the Sellers that:
5.7.1 the Buyer is a corporation duly organized and validly existing under the laws of its country of origin;
5.7.2 the Buyer has the legal right, full power and authority, and has taken all action necessary, to execute, deliver and to exercise its rights, and perform its obligations, under this Agreement and any other documents to be executed by the Buyer pursuant to or in connection with this Agreement, which when executed will constitute valid and binding obligations on the Buyer;
5.7.3 the execution and delivery of, and the performance by the Buyer of its obligations under, this Agreement and any other documents to be executed by it pursuant to or in connection with this Agreement will not:
(a) result in a breach of any provision of the constitutional or organisational documents of the Buyerit; or
(b) result in a breach of or give any third party a right to terminate or modify, or result in the creation of any Encumbrance under, any agreement, licence or other instrument or result in a breach of any order, judgment or decree of any court, governmental agency or regulatory body to which the Buyer or its nominee is a party or by which any of the Buyer or its nominee or any of their respective assets is bound;
5.7.4 the Buyer is not required to obtain any other person’s consent in relation to the acquisition of the Sale Shares;
5.7.5 no petition has been presented or order made and no meeting convened or resolution passed for the winding up or administration of the Buyer or for a provisional liquidator to be appointed in respect of the Buyer;
5.7.6 no distress, execution or other process has been levied on any of the assets of the Buyer, and no judgment creditor nor any liquidator, provisional liquidator, receiver or an administrative receiver of the Buyer has been appointed and there is no reason to believe that such a person might be appointed;
5.7.7 no voluntary arrangement has been proposed in respect of the Buyer and its creditors; and
5.7.8 the Buyer is not insolvent, or unable to pay its debts, and has not stopped paying its debts as they fall due, and no event analogous to any of the foregoing has occurred in or outside Hong Kong.
5.8 Each of the Sellers undertakes to the Buyer that it shall not dispose of or enter into any agreement or arrangement to dispose of or permit the disposal of any of the Sale Shares, the disposal of which is subject to its discretion from the date of this Agreement and until the Long Stop Date or the date when this Agreement is terminated in accordance with Clause 3.3, whichever is earlier.
5.9 Each of the Sellers further undertakes to the Buyer that it shall exercise or procure to be exercised all the voting rights attaching to the Sale Listed Shares in favour of the resolution approving the Scheme and the Share Proposal at the shareholders’ meeting of the Company to be held on 17 September 2008, and any adjournment thereof.
Appears in 1 contract
Sources: Client Agreement
REPRESENTATIONS, WARRANTIES AND UNDERTAKINGS. 5.1 Each of 3.1 The Obligors hereby make the Sellers represents following representations and warrants warranties:
(1) They have full power and authority to execute and perform this Agreement;
(2) The Obligors do not have any action, arbitration or any other judicial or administrative procedure pending or that may potentially materially affect the Buyer that each Seller Warranty is true, accurate and not misleading at the date performance of this Agreement. Immediately before Closing, each ;
(3) No Obligor has been declared bankrupt;
(4) Other than the share pledge created in favor of the Sellers Obligee, there is deemed to warrant not any mortgage, pledge, charge or any other third-party encumbrance created upon the Shares held by the Obligors;
(5) The Option granted by the Obligors to the Buyer that each Seller Warranty Obligee hereunder is true, accurate and not misleading by reference to the facts and circumstances on each day before Closingexclusive, and for this purpose only the Obligors will not grant an option or similar right to any references in other third-party through other means.
3.2 The Obligors hereby undertake that, throughout the Seller Warranties to the date term of this Agreement:
(1) They will sign a Share Transfer Agreement shall be construed as references and adopt a shareholders’ resolution according to the relevant date. Unless otherwise set out in this Agreement, no other warranty is given by and assist the Sellers.
5.2 Each of Obligee to obtain the Sellers acknowledges that necessary approval from the Buyer is entering into this Agreement in reliance on each Seller Warranty which has also been given as a representation and with government authority regarding the intention of inducing share transfer, to submit the Buyer to enter into this Share Transfer Agreement. The Sellers shall not invoke , the Buyer’s constructive or imputed knowledge of a fact or circumstance which might make a Seller Warranty untrue, inaccurate or misleading as a defence to a claim for breach of Clause 5.1.
5.3 Each Seller Warranty is to be construed independently and (except where this Agreement provides otherwise) is not limited by a provision of this Agreement or another Warranty.
5.4 Each of the Sellers represents and warrants amendment to the Buyer that:
5.4.1 each Articles of Association and the Sellers is an entity duly organized and validly existing under the laws updated register of its country of origin;
5.4.2 each of the Sellers has the legal right, full power and authority, and has taken all action necessary, to execute, deliver and to exercise its rights, and perform its obligations, under this Agreement and any other documents to be executed by each of the Sellers pursuant to or in connection with this Agreement, which when executed will constitute valid and binding obligations on each Seller and its asset management clients for whose account the Sale Shares are managed and who are the beneficial owners;
5.4.3 the Sale Shares are beneficially owned by the Sellers’ asset management clients in managed accounts over which the Sellers have investment discretion. To the best of the Sellers’ knowledge, there is no other person who has any legal or beneficial interest in the Sale Shares;
5.4.4 each of the Sellers is validly appointed as discretionary investment manager by the beneficial owners in respect of the Sale Shares;
5.4.5 the Sale Shares are beneficially owned by the Sellers’ asset management clients; shareholders to the best of the Sellers’ knowledge, the beneficial owners of the Sale Shares have the full legal right to sell the Sale Shares competent administration for industry and which are free from any Encumbrances;
5.4.6 upon completion of the Scheme, the Sellers’ asset management clients will be the sole beneficial owners of the New Unicom Shares and the New Unicom ADSs;
5.4.7 each of the Sellers has not created or permitted the creation of any Encumbrance nor entered into any agreement, arrangement or obligation to create or give an Encumbrance, in relation to any of the Sale Shares, the New Unicom Shares and/or the New Unicom ADSscommerce, and to complete all other relevant formalities;
(2) Other than the best share pledge created in favor of the Sellers’ knowledgeObligee, no person has claimed to be entitled to an Encumbrance in relation to any without the prior written consent of the Sale Obligee, the Obligors may not create any mortgage, pledge, charge or any other third-party encumbrance on the Shares, the New Unicom Shares and/or the New Unicom ADSs;
5.4.8 to the extent it held proxy voting authorityor assign, each of the Sellers has tendered votes in respect give away or otherwise dispose of the Shares underlying to any person (other than the Sale Netcom ADSs in favour of the resolution approving the scheme of arrangement under section 166 of the Companies Ordinance (Cap 32 of the Laws of Hong Kong) between the Company and the shareholders of the Company at the extraordinary general meeting of the Company to be held on 17 September 2008, and any adjournment thereof;
5.4.9 the execution and delivery of, and the performance by each of the Sellers of Obligee or its obligations under, this Agreement and any other documents to be executed by it pursuant to or in connection with this Agreement will not:
(a) result in a breach of any provision of the constitutional or organisational documents of each of the Sellersnominee);
(b3) result in a breach Upon occurrence of any event or give receipt of any third party a notice which likely affects the Obligors, Shares or the rights therein or change any obligation of the Obligors hereunder or the performance of any obligation of the Obligors hereunder, the Obligors will promptly notify the Obligee and take all actions and measures according to the reasonable instructions of the Obligee;
(4) Other than the Option granted to the Obligee hereunder, without the prior written consent of the Obligee, the Obligors may not grant any option or any other preemptive right to terminate or modify, or result in the creation of any Encumbrance under, any agreement, licence or other instrument or result in a breach of any order, judgment or decree of any court, governmental agency or regulatory body to which each of the Sellers or its nominee is a party or by which any of the Sellers or its nominee or any of their respective assets is bound; or
(c) result in any breach of any contractual covenants or investment management agreement to which each of the Sellers is subject;
5.4.10 each of the Sellers is not a “connected fund manager” (as defined in the Takeovers Code) or a “connected principal trader” (as defined in the Takeovers Code) of the offeror (i.e. Unicom) or the offeree company (i.e. the Company) nor a party acting in concert with the offeror and that consent from the Executive Director of the Corporate Finance Division of the Securities & Futures Commission is not required for the sale of the Sale Shares;
5.4.11 each of the Sellers is not required to obtain any other person’s consent in relation to the sale of the Sale Shares, the New Unicom Shares and the New Unicom ADSs;
5.4.12 each of the Sellers is not a connected person (as such term is defined in the Rules Governing the Listing of Securities on The Hong Kong Stock Exchange Limited) of the Company or Unicom;
5.4.13 no petition has been presented or order made and no meeting convened or resolution passed for the winding up or administration of any of the Sellers or for a provisional liquidator to be appointed in respect of any of the Sellers;
5.4.14 no distress, execution or other process has been levied on any of the assets of any of the Sellers, and no judgment creditor nor any liquidator, provisional liquidator, receiver or an administrative receiver of any of the Sellers has been appointed and there is no reason to believe that such a person might be appointed;
5.4.15 no voluntary arrangement has been proposed in respect of any of the Sellers and their creditors; and
5.4.16 each of the Sellers is not insolvent, or unable to pay its debts, and has not stopped paying its debts as they fall due, and no event analogous to any of the foregoing has occurred in or outside Hong Kongthird-party.
5.5 The Buyer represents and warrants to the Sellers that each Buyer Warranty is true, accurate and not misleading at the date of this Agreement. Immediately before Closing, the Buyer is deemed to warrant to the Sellers that each Buyer Warranty is true, accurate and not misleading by reference to the facts and circumstances on each day before Closing, and for this purpose only, any references in the Buyer Warranties to the date of this Agreement shall be construed as references to the relevant date. Unless otherwise set out in this Agreement, no other warranty is given by the Buyer.
5.6 The Buyer acknowledges that each of the Sellers is entering into this Agreement in reliance on each Buyer Warranty which has also been given as a representation and with the intention of inducing the Sellers to enter into this Agreement. The Buyer shall not invoke the Sellers’ constructive or imputed knowledge of a fact or circumstance which might make a Buyer Warranty untrue, inaccurate or misleading as a defence to a claim for breach of Clause 5.5.
5.7 The Buyer represents and warrants to the Sellers that:
5.7.1 the Buyer is a corporation duly organized and validly existing under the laws of its country of origin;
5.7.2 the Buyer has the legal right, full power and authority, and has taken all action necessary, to execute, deliver and to exercise its rights, and perform its obligations, under this Agreement and any other documents to be executed by the Buyer pursuant to or in connection with this Agreement, which when executed will constitute valid and binding obligations on the Buyer;
5.7.3 the execution and delivery of, and the performance by the Buyer of its obligations under, this Agreement and any other documents to be executed by it pursuant to or in connection with this Agreement will not:
(a) result in a breach of any provision of the constitutional or organisational documents of the Buyer; or
(b) result in a breach of or give any third party a right to terminate or modify, or result in the creation of any Encumbrance under, any agreement, licence or other instrument or result in a breach of any order, judgment or decree of any court, governmental agency or regulatory body to which the Buyer or its nominee is a party or by which any of the Buyer or its nominee or any of their respective assets is bound;
5.7.4 the Buyer is not required to obtain any other person’s consent in relation to the acquisition of the Sale Shares;
5.7.5 no petition has been presented or order made and no meeting convened or resolution passed for the winding up or administration of the Buyer or for a provisional liquidator to be appointed in respect of the Buyer;
5.7.6 no distress, execution or other process has been levied on any of the assets of the Buyer, and no judgment creditor nor any liquidator, provisional liquidator, receiver or an administrative receiver of the Buyer has been appointed and there is no reason to believe that such a person might be appointed;
5.7.7 no voluntary arrangement has been proposed in respect of the Buyer and its creditors; and
5.7.8 the Buyer is not insolvent, or unable to pay its debts, and has not stopped paying its debts as they fall due, and no event analogous to any of the foregoing has occurred in or outside Hong Kong.
5.8 Each of the Sellers undertakes to the Buyer that it shall not dispose of or enter into any agreement or arrangement to dispose of or permit the disposal of any of the Sale Shares, the disposal of which is subject to its discretion from the date of this Agreement and until the Long Stop Date or the date when this Agreement is terminated in accordance with Clause 3.3, whichever is earlier.
5.9 Each of the Sellers further undertakes to the Buyer that it shall exercise or procure to be exercised all the voting rights attaching to the Sale Listed Shares in favour of the resolution approving the Scheme and the Share Proposal at the shareholders’ meeting of the Company to be held on 17 September 2008, and any adjournment thereof.
Appears in 1 contract
Sources: Option Agreement (China Mobile Games & Entertainment Group LTD)
REPRESENTATIONS, WARRANTIES AND UNDERTAKINGS. 5.1 6.1 The Seller represents, warrants and undertakes to the Purchaser in the terms of the Warranties as set out in Part A of Schedule 3 and acknowledges that the Purchaser has entered into this Agreement in reliance upon the Seller Warranties. Each of the Sellers represents and warrants Seller Warranties is subject to the Buyer Disclosures and shall be qualified and limited accordingly.
6.2 The Purchaser represents, warrants and undertakes to the Seller in terms of the Warranties as set out in Part B of Schedule 3 and acknowledges that each the Seller has entered into this Agreement in reliance upon the Purchaser Warranties.
6.3 Each of the Warranties shall be construed as a separate Warranty is true, accurate and (save as expressly provided to the contrary) shall not misleading at be limited or restricted by reference to or inference from the date terms of any other Warranty or any other term of this Agreement. Immediately before Closing, each of the Sellers is .
6.4 The Warranties shall be deemed to warrant to the Buyer that each Seller Warranty is true, accurate and not misleading by be repeated immediately before Closing with reference to the facts and circumstances on each day before Closing, and for this purpose only then existing.
6.5 The Seller undertakes to notify the Purchaser in writing promptly if it becomes aware of any references in the Seller Warranties to circumstance arising after the date of this Agreement shall be construed as references to which would cause any of the relevant date. Unless otherwise Seller Warranties set out in this Agreement, no other warranty is given by Part A of Schedule 3 (if the Sellers.
5.2 Each of the Sellers acknowledges that the Buyer is entering into this Agreement in reliance on each Seller Warranty which has also been given as a representation and Warranties were repeated with the intention of inducing the Buyer to enter into this Agreement. The Sellers shall not invoke the Buyer’s constructive or imputed knowledge of a fact or circumstance which might make a Seller Warranty untrue, inaccurate or misleading as a defence to a claim for breach of Clause 5.1.
5.3 Each Seller Warranty is to be construed independently and (except where this Agreement provides otherwise) is not limited by a provision of this Agreement or another Warranty.
5.4 Each of the Sellers represents and warrants to the Buyer that:
5.4.1 each of the Sellers is an entity duly organized and validly existing under the laws of its country of origin;
5.4.2 each of the Sellers has the legal right, full power and authority, and has taken all action necessary, to execute, deliver and to exercise its rights, and perform its obligations, under this Agreement and any other documents to be executed by each of the Sellers pursuant to or in connection with this Agreement, which when executed will constitute valid and binding obligations on each Seller and its asset management clients for whose account the Sale Shares are managed and who are the beneficial owners;
5.4.3 the Sale Shares are beneficially owned by the Sellers’ asset management clients in managed accounts over which the Sellers have investment discretion. To the best of the Sellers’ knowledge, there is no other person who has any legal or beneficial interest in the Sale Shares;
5.4.4 each of the Sellers is validly appointed as discretionary investment manager by the beneficial owners in respect of the Sale Shares;
5.4.5 the Sale Shares are beneficially owned by the Sellers’ asset management clients; to the best of the Sellers’ knowledge, the beneficial owners of the Sale Shares have the full legal right to sell the Sale Shares and which are free from any Encumbrances;
5.4.6 upon completion of the Scheme, the Sellers’ asset management clients will be the sole beneficial owners of the New Unicom Shares and the New Unicom ADSs;
5.4.7 each of the Sellers has not created or permitted the creation of any Encumbrance nor entered into any agreement, arrangement or obligation to create or give an Encumbrance, in relation to any of the Sale Shares, the New Unicom Shares and/or the New Unicom ADSs, and to the best of the Sellers’ knowledge, no person has claimed to be entitled to an Encumbrance in relation to any of the Sale Shares, the New Unicom Shares and/or the New Unicom ADSs;
5.4.8 to the extent it held proxy voting authority, each of the Sellers has tendered votes in respect of the Shares underlying the Sale Netcom ADSs in favour of the resolution approving the scheme of arrangement under section 166 of the Companies Ordinance (Cap 32 of the Laws of Hong Kong) between the Company and the shareholders of the Company at the extraordinary general meeting of the Company to be held on 17 September 2008, and any adjournment thereof;
5.4.9 the execution and delivery of, and the performance by each of the Sellers of its obligations under, this Agreement and any other documents to be executed by it pursuant to or in connection with this Agreement will not:
(a) result in a breach of any provision of the constitutional or organisational documents of each of the Sellers;
(b) result in a breach of or give any third party a right to terminate or modify, or result in the creation of any Encumbrance under, any agreement, licence or other instrument or result in a breach of any order, judgment or decree of any court, governmental agency or regulatory body to which each of the Sellers or its nominee is a party or by which any of the Sellers or its nominee or any of their respective assets is bound; or
(c) result in any breach of any contractual covenants or investment management agreement to which each of the Sellers is subject;
5.4.10 each of the Sellers is not a “connected fund manager” (as defined in the Takeovers Code) or a “connected principal trader” (as defined in the Takeovers Code) of the offeror (i.e. Unicom) or the offeree company (i.e. the Company) nor a party acting in concert with the offeror and that consent from the Executive Director of the Corporate Finance Division of the Securities & Futures Commission is not required for the sale of the Sale Shares;
5.4.11 each of the Sellers is not required to obtain any other person’s consent in relation to the sale of the Sale Shares, the New Unicom Shares and the New Unicom ADSs;
5.4.12 each of the Sellers is not a connected person (as such term is defined in the Rules Governing the Listing of Securities on The Hong Kong Stock Exchange Limited) of the Company or Unicom;
5.4.13 no petition has been presented or order made and no meeting convened or resolution passed for the winding up or administration of any of the Sellers or for a provisional liquidator to be appointed in respect of any of the Sellers;
5.4.14 no distress, execution or other process has been levied on any of the assets of any of the Sellers, and no judgment creditor nor any liquidator, provisional liquidator, receiver or an administrative receiver of any of the Sellers has been appointed and there is no reason to believe that such a person might be appointed;
5.4.15 no voluntary arrangement has been proposed in respect of any of the Sellers and their creditors; and
5.4.16 each of the Sellers is not insolvent, or unable to pay its debts, and has not stopped paying its debts as they fall due, and no event analogous to any of the foregoing has occurred in or outside Hong Kong.
5.5 The Buyer represents and warrants to the Sellers that each Buyer Warranty is true, accurate and not misleading at the date of this Agreement. Immediately before Closing, the Buyer is deemed to warrant to the Sellers that each Buyer Warranty is true, accurate and not misleading by reference to the facts and circumstances on each day before Closing, and for this purpose only, any references in the Buyer Warranties then existing) to the date of this Agreement shall be construed as references to the relevant date. Unless otherwise set out in this Agreement, no other warranty is given by the Buyer.
5.6 The Buyer acknowledges that each of the Sellers is entering into this Agreement in reliance on each Buyer Warranty which has also been given as a representation and with the intention of inducing the Sellers to enter into this Agreement. The Buyer shall not invoke the Sellers’ constructive become untrue or imputed knowledge of a fact or circumstance which might make a Buyer Warranty untrue, inaccurate or misleading as a defence to a claim for breach of Clause 5.5.
5.7 The Buyer represents and warrants in any respect which is material to the Sellers that:
5.7.1 the Buyer is a corporation duly organized and validly existing under the laws of its country of origin;
5.7.2 the Buyer has the legal rightfinancial condition, full power and authority, and has taken all action necessary, to execute, deliver and to exercise its rights, and perform its obligations, under this Agreement and any other documents to be executed by the Buyer pursuant to trading position or in connection with this Agreement, which when executed will constitute valid and binding obligations on the Buyer;
5.7.3 the execution and delivery of, and the performance by the Buyer of its obligations under, this Agreement and any other documents to be executed by it pursuant to or in connection with this Agreement will not:
(a) result in a breach of any provision of the constitutional or organisational documents of the Buyer; or
(b) result in a breach of or give any third party a right to terminate or modify, or result in the creation of any Encumbrance under, any agreement, licence or other instrument or result in a breach of any order, judgment or decree of any court, governmental agency or regulatory body to which the Buyer or its nominee is a party or by which any of the Buyer or its nominee or any of their respective assets is bound;
5.7.4 the Buyer is not required to obtain any other person’s consent in relation to the acquisition of the Sale Shares;
5.7.5 no petition has been presented or order made and no meeting convened or resolution passed for the winding up or administration of the Buyer or for a provisional liquidator to be appointed in respect of the Buyer;
5.7.6 no distress, execution or other process has been levied on any of the assets of the Buyer, and no judgment creditor nor any liquidator, provisional liquidator, receiver or an administrative receiver of the Buyer has been appointed and there is no reason to believe that such a person might be appointed;
5.7.7 no voluntary arrangement has been proposed in respect of the Buyer and its creditors; and
5.7.8 the Buyer is not insolvent, or unable to pay its debts, and has not stopped paying its debts as they fall due, and no event analogous to any of the foregoing has occurred in or outside Hong Kong.
5.8 Each of the Sellers undertakes to the Buyer that it shall not dispose of or enter into any agreement or arrangement to dispose of or permit the disposal prospects of any of the Sale Shares, the disposal of which is subject to its discretion from the date of this Agreement and until the Long Stop Date or the date when this Agreement is terminated in accordance with Clause 3.3, whichever is earlierTarget Group Companies.
5.9 Each 6.6 The Seller shall procure that, except for the Relevant Florens Loans and the FCMCL Shareholder Loan, all Inter-Company Debts shall be settled (including settlement of all principal, interests, fees and penalties (if applicable)) between the any Target Group Company and each relevant member of the Sellers further undertakes Seller Group prior to the Buyer that it shall exercise or procure to be exercised all the voting rights attaching to the Sale Listed Shares in favour of the resolution approving the Scheme and the Share Proposal at the shareholders’ meeting of the Company to be held on 17 September 2008, and any adjournment thereofClosing Date.
Appears in 1 contract
Sources: Share Purchase Agreement
REPRESENTATIONS, WARRANTIES AND UNDERTAKINGS. 5.1 Each of the Sellers represents and warrants to the Buyer that each Seller Warranty is true20.1 The Client hereby warrants, accurate and not misleading at the date of this Agreement. Immediately before Closing, each of the Sellers is deemed to warrant to the Buyer that each Seller Warranty is true, accurate and not misleading by reference to the facts and circumstances on each day before Closingrepresents, and for this purpose only any references in undertakes to KGI Asia on a continuing basis that:
(a) the Seller Warranties to the date of this Agreement shall be construed as references to the relevant date. Unless otherwise set out in this Agreement, no other warranty is given by the Sellers.
5.2 Each of the Sellers acknowledges that the Buyer Client is entering into this Client Agreement with KGI Asia as principal and is not trading on behalf of any other person (except where KGI Asia is notified in reliance writing and such is expressly approved by KGI Asia);
(b) the information provided in the Account Opening Form is true and complete and the Client will notify KGI Asia in writing upon any change in the information provided in the Account Opening Form or any other information relating to the Client. Until the Client gives such written notification to KGI Asia, KGI Asia shall be entitled to rely on the information contained in the Account Opening Form. KGI Asia is hereby authorized to conduct a credit enquiry or check on the Client for the purpose of ascertaining the financial situation, investment objectives and other information of or relating to the Client as set out in the Account Opening Form or otherwise;
(c) (except where KGI Asia is notified in writing and such is expressly approved by KGI Asia) the Client is the beneficial owner of the Securities, Options Contracts and other derivative products (if any) under the Account free from any lien, charge, equity or encumbrances save as created by or under this Client Agreement;
(d) (except where KGI Asia is notified in writing and such is expressly approved by KGI Asia) the Client is the person or entity (legal or otherwise) ultimately responsible for originating the Instructions in relation to each Seller Warranty which Transaction in the Account(s) and that stands to gain the commercial or economic benefit of each such Transaction and/or bear its commercial or economic risk;
(e) the Client has also been given as a representation full power, authority and with capacity to enter into and perform its obligations under this Client Agreement and if applicable, the intention of inducing Client has obtained all necessary corporate authorizations and consents from the Buyer shareholders and directors and has taken all necessary actions to enable the Client to enter into this Client Agreement and perform all the obligations of the Client under this Client Agreement. The Sellers shall not invoke Client has also obtained and will maintain in full force and effect any necessary consents, licences and authorities;
(f) in case of an individual, the Buyer’s constructive or imputed knowledge Client is of full age and capacity and in the case of a fact firm or circumstance which might make a Seller Warranty untruecorporation, inaccurate it is duly constituted and incorporated and has the power to enter into this Client Agreement and all contracts made or misleading as a defence to a claim for breach of Clause 5.1.
5.3 Each Seller Warranty is to be construed independently made pursuant to this Client Agreement are and (except where this Agreement provides otherwise) is not limited by a provision of this Agreement or another Warranty.
5.4 Each will constitute legally binding and enforceable obligations of the Sellers represents and warrants to the Buyer that:
5.4.1 each of the Sellers is an entity duly organized and validly existing under the laws of its country of originClient;
5.4.2 each of the Sellers has the legal right, full power and authority, and has taken all action necessary, to execute, deliver and to exercise its rights, and perform its obligations, under (g) this Client Agreement and any other documents to be executed by each of the Sellers pursuant to or in connection with this Agreement, which when executed will constitute constitutes a valid and legally binding obligations agreement on each Seller and its asset management clients for whose account the Sale Shares are managed and who are the beneficial ownersClient;
5.4.3 the Sale Shares are beneficially owned by the Sellers’ asset management clients in managed accounts over which the Sellers have investment discretion. To the best of the Sellers’ knowledge, there is no other person who has any legal or beneficial interest in the Sale Shares;
5.4.4 each of the Sellers is validly appointed as discretionary investment manager by the beneficial owners in respect of the Sale Shares;
5.4.5 the Sale Shares are beneficially owned by the Sellers’ asset management clients; to the best of the Sellers’ knowledge, the beneficial owners of the Sale Shares have the full legal right to sell the Sale Shares and which are free from any Encumbrances;
5.4.6 upon completion of the Scheme, the Sellers’ asset management clients will be the sole beneficial owners of the New Unicom Shares and the New Unicom ADSs;
5.4.7 each of the Sellers has not created or permitted the creation of any Encumbrance nor entered into any agreement, arrangement or obligation to create or give an Encumbrance, in relation to any of the Sale Shares, the New Unicom Shares and/or the New Unicom ADSs, and to the best of the Sellers’ knowledge, no person has claimed to be entitled to an Encumbrance in relation to any of the Sale Shares, the New Unicom Shares and/or the New Unicom ADSs;
5.4.8 to the extent it held proxy voting authority, each of the Sellers has tendered votes in respect of the Shares underlying the Sale Netcom ADSs in favour of the resolution approving the scheme of arrangement under section 166 of the Companies Ordinance (Cap 32 of the Laws of Hong Kongh) between the Company and the shareholders of the Company at the extraordinary general meeting of the Company to be held on 17 September 2008, and any adjournment thereof;
5.4.9 the execution and delivery of, and the performance by each of the Sellers of its and obligations under, this Agreement contained herein do not and any other documents to be executed by it pursuant to or in connection with this Agreement will not:
(ai) result in a breach of contravene any applicable Market Requirements to which the Client is subject or any provision of the constitutional memorandum and/or articles of association or organisational documents of each by-laws of the Sellers;Client (if applicable); or
(bii) result in a breach of or give any third party a right to terminate or modify, conflict with or result in any breach of the creation terms of or constitute any Encumbrance under, default under any agreement, licence agreement or other instrument or result in a breach of any order, judgment or decree of any court, governmental agency or regulatory body to which each of the Sellers or its nominee Client is a party or is subject to or by which any of the Sellers Client’s assets or its nominee property is bound to;
(i) the Client shall not, without the prior written consent of KGI Asia, charge, pledge or allow to subsist any charge or pledge over or grant or purport to grant any option over any of the Client’s Securities, Options Contracts or other derivative products or monies in the Account (save as created by or under this Client Agreement);
(j) the Client acknowledges and agrees that KGI Asia is not responsible for advising the Client of any disclosure obligations whether arising generally or as a result of any Securities, investment fund or other Transaction effected by KGI Asia or of any holding of Securities or otherwise by or on behalf of the Client. Such obligations of disclosure are personal obligations of the Client. KGI Asia shall not be obliged to give notice of holdings by or on behalf of the Client in any form or by any time limit save for any notice or statement to be issued by KGI Asia as expressly provided in this Client Agreement. KGI Asia shall not be liable for any Loss of the Client arising from any failure or delay by the Client or any of their respective assets is bound; orother person to disclose interest in accordance with any applicable laws, rules and regulations and the Client shall indemnify KGI Asia and its Affiliates for any Loss arising from any such failure, delay or default which may be suffered or incurred by KGI Asia;
(ck) result the Client is not resident in a country where there is any restriction on the Client’s purchase or holding of any Securities. If the Client becomes resident of such country, the Client will inform KGI Asia immediately and will if so required by KGI Asia sell or redeem any such restricted Securities, failing which KGI Asia may at its absolute discretion and is authorized but without any obligation or liability on its part to sell or redeem any such restricted Securities on behalf of the Client;
(l) the Client when purchasing or dealing in any breach Securities will ensure that the Client is not subject to, and is not acting on behalf of any contractual covenants person who is subject to, any prohibition against the purchase or investment management agreement to which each of the Sellers is subjectdealing in any such Securities;
5.4.10 each of (m) the Sellers Client is not a “connected fund manager” (as defined citizen or resident of the U.S., nor is the Client a non-U.S. citizen with a substantial presence in the Takeovers U.S. under Section 61 of the U.S. Internal Revenue Code) , or if the Client is a corporate entity, its underlying shareholders are not citizens or residents of the U.S., nor are any of them non-U.S. citizens with a substantial presence in the U.S. under Section 61 of the U.S. Internal Revenue Code and the Client will give specific written notice to KGI Asia if this is not the case or upon any subsequent change to such status. The Client further undertakes to inform KGI Asia forthwith if there is any change in circumstances which, under applicable U.S. tax regulations, modifies the Client’s status as a “connected principal tradernon-U.S. person” and causes the Client to acquire the status of a “U.S. Person for Tax Purposes”, or vice versa;
(as defined n) the Client acknowledges it has to understand the nature and risks of the products in which it is trading and has sufficient net worth to be able to assume the relevant risks and bear the potential losses of trading in such products; and
(o) the Client’s funds for investing in Securities in the Takeovers Code) of the offeror (i.e. Unicom) or the offeree company (i.e. the Company) nor a party acting in concert with the offeror and that consent Taiwan market are not sourced from the Executive Director of Mainland China or Taiwan.
20.2 Unless KGI Asia is specifically notified by the Corporate Finance Division of the Securities & Futures Commission is not required for the sale of the Sale Shares;
5.4.11 each of the Sellers is not required to obtain any other person’s consent in relation Client to the sale of contrary at the Sale Sharestime immediately before the Client places an Instruction, the New Unicom Shares Client represents and warrants to KGI Asia that the New Unicom ADSs;
5.4.12 each of Client is not, or where the Sellers Client is not a company or body corporate, neither the Client or any relevant person related to it is not, a connected person (as such term is defined in the Rules Governing the Listing of Securities on The Hong Kong Stock Exchange LimitedSEHK, the Rules Governing the Listing of Securities on the Growth Enterprise Market of SEHK or the listing rules of any relevant exchange, as the case may be) of the Company or Unicom;
5.4.13 no petition has been presented or order made and no meeting convened or resolution passed for the winding up or administration of any issuer of the Sellers Securities or for a provisional liquidator the Securities underlying the Options Contract which are the subject of such Instruction.
20.3 The above representation, warranties and undertakings shall be deemed to be appointed repeated immediately before each Instruction is given or executed.
20.4 If, in respect of relation to any of particular Transaction in the Sellers;
5.4.14 no distressAccount, execution or other process has been levied on any of the assets of any of the Sellers, and no judgment creditor nor any liquidator, provisional liquidator, receiver or an administrative receiver of any of the Sellers has been appointed and there is no reason to believe that such a person might be appointed;
5.4.15 no voluntary arrangement has been proposed in respect of any of the Sellers and their creditors; and
5.4.16 each of the Sellers Client is not insolvent, the person or unable entity (legal or otherwise) ultimately responsible for originating the Instruction or stands to pay gain its debts, and has not stopped paying commercial or economic benefit and/or bear its debts as they fall due, and no event analogous to any of the foregoing has occurred in commercial or outside Hong Kong.
5.5 The Buyer represents and warrants to the Sellers that each Buyer Warranty is true, accurate and not misleading at the date of this Agreement. Immediately before Closingeconomic risk, the Buyer is deemed Client undertakes and agrees to warrant provide information on the identity, address and contact and other details of such person or entity to KGI Asia before giving the Sellers that each Buyer Warranty is true, accurate Instruction to KGI Asia. The Client also undertakes and not misleading by reference agrees to the facts and circumstances on each day before Closing, and for this purpose only, any references in the Buyer Warranties to the date of this Agreement shall be construed as references provide such information directly to the relevant date. Unless otherwise set out in exchanges, government agencies or regulators within two business days of KGI Asia’s request and such undertaking and agreement shall survive the termination of this Client Agreement, no other warranty is given by the Buyer.
5.6 The Buyer acknowledges that each 20.5 Where the Client is acting as an investment manager of any collective investment scheme, discretionary account or discretionary trust, if there is any Transaction in which the investment discretion of the Sellers Client is entering into this Agreement in reliance on each Buyer Warranty which has also been given as a representation overridden by other person(s), the Client agrees that with regard to such Transaction it will advise KGI Asia of such fact and with the intention of inducing the Sellers to enter into this Agreement. The Buyer shall not invoke the Sellers’ constructive or imputed knowledge of a fact or circumstance which might make a Buyer Warranty untrue, inaccurate or misleading as a defence to a claim for breach of Clause 5.5.
5.7 The Buyer represents and warrants to the Sellers that:
5.7.1 the Buyer is a corporation duly organized and validly existing under the laws of its country of origin;
5.7.2 the Buyer has the legal right, full power and authority, and has taken all action necessary, to execute, deliver and to exercise its rights, and perform its obligations, under this Agreement and any other documents to be executed by the Buyer pursuant to or in connection with this Agreement, which when executed will constitute valid and binding obligations provide information on the Buyer;
5.7.3 the execution identity, contact and delivery of, and the performance by the Buyer other details of its obligations under, this Agreement and any such other documents to be executed by it pursuant to or in connection with this Agreement will not:
(a) result in a breach of any provision of the constitutional or organisational documents of the Buyer; or
(b) result in a breach of or give any third party a right to terminate or modify, or result in the creation of any Encumbrance under, any agreement, licence or other instrument or result in a breach of any order, judgment or decree of any court, governmental agency or regulatory body to which the Buyer or its nominee is a party or by which any of the Buyer or its nominee or any of their respective assets is bound;
5.7.4 the Buyer is not required to obtain any other person’s consent in relation to the acquisition of the Sale Shares;
5.7.5 no petition has been presented or order made and no meeting convened or resolution passed for the winding up or administration of the Buyer or for a provisional liquidator to be appointed in respect of the Buyer;
5.7.6 no distress, execution or other process has been levied on any of the assets of the Buyer, and no judgment creditor nor any liquidator, provisional liquidator, receiver or an administrative receiver of the Buyer has been appointed and there is no reason to believe that such a person might be appointed;
5.7.7 no voluntary arrangement has been proposed in respect of the Buyer and its creditors; and
5.7.8 the Buyer is not insolvent, or unable to pay its debts, and has not stopped paying its debts as they fall due, and no event analogous to any of the foregoing has occurred in or outside Hong Kong.
5.8 Each of the Sellers undertakes to the Buyer that it shall not dispose of or enter into any agreement or arrangement to dispose of or permit the disposal of any of the Sale Shares, the disposal of which is subject to its discretion from the date of this Agreement and until the Long Stop Date or the date when this Agreement is terminated in accordance with Clause 3.3, whichever is earlier.
5.9 Each of the Sellers further undertakes to the Buyer that it shall exercise or procure to be exercised all the voting rights attaching to the Sale Listed Shares in favour of the resolution approving the Scheme and the Share Proposal at the shareholders’ meeting of the Company to be held on 17 September 2008, and any adjournment thereof.person(s)
Appears in 1 contract
Sources: Client Agreement
REPRESENTATIONS, WARRANTIES AND UNDERTAKINGS. 5.1 Each of the Sellers represents You represent and warrants warrant -------------------------------------------- to the Buyer that each Seller Warranty is true, accurate and not misleading at the date of this Agreement. Immediately before Closing, each of the Sellers is deemed to warrant to the Buyer that each Seller Warranty is true, accurate and not misleading by reference to the facts and circumstances on each day before Closing, and for this purpose only any references in the Seller Warranties to the date of this Agreement shall be construed as references to the relevant date. Unless otherwise set out in this Agreement, no other warranty is given by the Sellers.
5.2 Each of the Sellers acknowledges that the Buyer is entering into this Agreement in reliance on each Seller Warranty which has also been given as a representation and with the intention of inducing the Buyer to enter into this Agreement. The Sellers shall not invoke the Buyer’s constructive or imputed knowledge of a fact or circumstance which might make a Seller Warranty untrue, inaccurate or misleading as a defence to a claim for breach of Clause 5.1.
5.3 Each Seller Warranty is to be construed independently and (except where this Agreement provides otherwise) is not limited by a provision of this Agreement or another Warranty.
5.4 Each of the Sellers represents and warrants to the Buyer undertake that:
5.4.1 each of the Sellers is an entity duly organized and validly existing under the laws of its country of origin;
5.4.2 each of the Sellers has the legal right, full power and authority, and has taken all action necessary, to execute, deliver and to exercise its rights, and perform its obligations, under this Agreement and any other documents to be executed by each of the Sellers pursuant to or in connection with this Agreement, which when executed will constitute valid and binding obligations on each Seller and its asset management clients for whose account the Sale Shares are managed and who are the beneficial owners;
5.4.3 the Sale Shares are beneficially owned by the Sellers’ asset management clients in managed accounts over which the Sellers have investment discretion. To the best of the Sellers’ knowledge, there is no other person who has any legal or beneficial interest in the Sale Shares;
5.4.4 each of the Sellers is validly appointed as discretionary investment manager by the beneficial owners in respect of the Sale Shares;
5.4.5 the Sale Shares are beneficially owned by the Sellers’ asset management clients; to the best of the Sellers’ knowledge, the beneficial owners of the Sale Shares have the full legal right to sell the Sale Shares and which are free from any Encumbrances;
5.4.6 upon completion of the Scheme, the Sellers’ asset management clients will be the sole beneficial owners of the New Unicom Shares and the New Unicom ADSs;
5.4.7 each of the Sellers has not created or permitted the creation of any Encumbrance nor entered into any agreement, arrangement or obligation to create or give an Encumbrance, in relation to any of the Sale Shares, the New Unicom Shares and/or the New Unicom ADSs, and to the best of the Sellers’ knowledge, no person has claimed to be entitled to an Encumbrance in relation to any of the Sale Shares, the New Unicom Shares and/or the New Unicom ADSs;
5.4.8 to the extent it held proxy voting authority, each of the Sellers has tendered votes in respect of the Shares underlying the Sale Netcom ADSs in favour of the resolution approving the scheme of arrangement under section 166 of the Companies Ordinance (Cap 32 of the Laws of Hong Kong) between the Company and the shareholders of the Company at the extraordinary general meeting of the Company to be held on 17 September 2008, and any adjournment thereof;
5.4.9 the execution and delivery of, and the performance by each of the Sellers of its obligations under, this Agreement and any other documents to be executed by it pursuant to or in connection with this Agreement will not:
(a) result in a breach You are familiar with Securities Act Release No. 4968, Rule 15c2-8 under the Exchange Act, Section 4(3) of any provision Securities Act and Section 24(d) of the constitutional or organisational documents Investment Company Act relating to the distribution and delivery of each preliminary and final prospectuses and will comply therewith. You will deliver thereafter to any customer whose Shares you are holding as record holder copies of the Sellers;annual and interim reports and proxy solicitation materials relating to the Shares.
(b) result in a breach You agree to keep an accurate record of or give any third party a right distributions (including dates, number of copies and persons to terminate or modify, or result in the creation whom sent) of copies of any Encumbrance underProspectus (and any SAI) for each Fund (or any amendment or supplement) and, any agreementpromptly upon request by Bear ▇▇▇▇▇▇▇, licence or other instrument or result in to bring all subsequent changes to such Prospectus to the attention of anyone to whom such material shall have been distributed. You further agree to furnish to persons who receive a breach confirmation of sale of shares of any order, judgment or decree of any court, governmental agency or regulatory body to which each fund of the Sellers or its nominee is Trusts a party or by which any copy of the Sellers or its nominee or any Prospectus (and not the SAI for such fund of their respective assets is bound; orthe Trusts filed pursuant to Rule 497 under the Securities Act of 1933, as amended).
(c) result You will make all reasonable efforts to obtain proxies from such purchasers whose Shares you are holding as record holder. Additional copies of a Fund's Prospectuses, SAI, annual or interim reports, proxy solicitation materials and any other printed information supplemental to such material will be supplied as reasonably requested.
(d) You are a broker-dealer registered with the Securities and Exchange Commission (the "SEC") and a member in any breach of any contractual covenants or investment management agreement to which each good standing of the Sellers is subject;
5.4.10 each National Association of Securities Dealers, Inc. (the Sellers is not a “connected fund manager” (as defined "NASD") or, in the Takeovers Code) alternative, that you are a foreign dealer or a “connected principal trader” (as defined in the Takeovers Code) of the offeror (i.e. Unicom) or the offeree company (i.e. the Company) nor a party acting in concert with the offeror and that consent from the Executive Director of the Corporate Finance Division of the Securities & Futures Commission is not required for the sale of the Sale Shares;
5.4.11 each of the Sellers is bank, not required to obtain any other person’s consent be registered as a broker-dealer with the SEC and not required or eligible for membership in relation the NASD. If you are such an NASD member, you agree that in making sales of shares of the one or more classes of shares of each fund of the Trusts, you will comply with all applicable rules of the NASD, including without limitation, rules pertaining to the sale opening, approval, supervision and monitoring of customer accounts, the NASD's Interpretation with Respect to Free-Riding and Withholding and Sections 2730, 2740 and 2750 of the Sale SharesNASD's Conduct Rules. If you are such an unregistered foreign dealer or bank, the New Unicom Shares you agree not to offer or sell, or to agree to offer or sell, directly or indirectly, any shares to any party to whom such shares may not be sold unless you are so registered and the New Unicom ADSs;
5.4.12 each a member of the Sellers is not a connected person (as NASD, and in making sales of such term is defined in shares you agree to comply with the Rules Governing the Listing of Securities on The Hong Kong Stock Exchange Limited) NASD's Interpretation with Respect to Free-Riding and Withholding and Sections 2730, 2740 and 2750 of the Company or Unicom;
5.4.13 no petition has been presented or order made and no meeting convened or resolution passed for the winding up or administration of any NASD's Conduct Rules as though you were a member in good standing of the Sellers NASD and to comply with Section 2420 of such Conduct Rules as it applies to a nonmember broker or for dealer in a provisional liquidator foreign country. You agree to be appointed in respect of any abide by all other Rules and Regulations of the Sellers;
5.4.14 no distressNASD, execution or other process has been levied on any including Section 2830 of the assets of any of the Sellersits Conduct Rules, and no judgment creditor nor any liquidatorall applicable state and Federal laws, provisional liquidator, receiver or an administrative receiver of any of the Sellers has been appointed rules and there is no reason to believe that such a person might be appointed;
5.4.15 no voluntary arrangement has been proposed in respect of any of the Sellers and their creditors; and
5.4.16 each of the Sellers is not insolvent, or unable to pay its debts, and has not stopped paying its debts as they fall due, and no event analogous to any of the foregoing has occurred in or outside Hong Kong.
5.5 The Buyer represents and warrants to the Sellers that each Buyer Warranty is true, accurate and not misleading at the date of this Agreementregulations. Immediately before Closing, the Buyer is deemed to warrant to the Sellers that each Buyer Warranty is true, accurate and not misleading by reference to the facts and circumstances on each day before Closing, and for this purpose only, any references in the Buyer Warranties to the date of this Agreement shall be construed as references to the relevant date. Unless otherwise set out in this Agreement, no other warranty is given by the Buyer.
5.6 The Buyer acknowledges that each of the Sellers is entering into this Agreement in reliance on each Buyer Warranty which has Your acceptance also been given as constitutes a representation and with the intention of inducing the Sellers that you have been duly authorized by proper corporate or partnership action to enter into this Agreement and to perform its obligations hereunder. You will not accept any orders from any broker, dealer or financial institution who is purchasing from it with a view toward distribution unless you have obtained such person's or entity's written consent to be bound by the terms of this Agreement.
(e) You undertake to comply with respect to your offering of Shares to the public pursuant to this Agreement with all applicable provisions of the Securities Act, the Exchange Act and the Investment Company Act and the rules and regulations thereunder and with the applicable rules of the NASD.
(f) You represent that any compensation payable to you hereunder (i) will be disclosed to your customers; (ii) will be authorized by your customers; and (iii) will not result in an excessive fee to you. The Buyer shall not invoke the Sellers’ constructive or imputed knowledge of a fact or circumstance which might make a Buyer Warranty untrueIn addition, inaccurate or misleading as a defence if an issue relating to a claim Class' 12b-1 Plan (as defined below) is submitted for breach of Clause 5.5.
5.7 The Buyer represents and warrants to shareholder approval, you will vote any Shares held for your own account in the Sellers that:
5.7.1 same proportion as the Buyer is a corporation duly organized and validly existing under the laws of its country of origin;
5.7.2 the Buyer has the legal right, full power and authority, and has taken all action necessary, to execute, deliver and to exercise its rights, and perform its obligations, under this Agreement and any other documents to be executed by the Buyer pursuant to or in connection with this Agreement, which when executed will constitute valid and binding obligations on the Buyer;
5.7.3 the execution and delivery of, and the performance by the Buyer of its obligations under, this Agreement and any other documents to be executed by it pursuant to or in connection with this Agreement will not:
(a) result in a breach of any provision vote of the constitutional Shares held by your customers on such issue. You further represent that in effecting the purchase or organisational documents redemption of the Buyer; or
(b) result in a breach of or give any third party a right to terminate or modify, or result in the creation of any Encumbrance under, any agreement, licence or other instrument or result in a breach of any order, judgment or decree of any court, governmental agency or regulatory body to which the Buyer or its nominee is a party or by which any of the Buyer or its nominee or any of their respective assets is bound;
5.7.4 the Buyer is not required to obtain any other person’s consent in relation to the acquisition of the Sale Shares;
5.7.5 no petition has been presented or order made and no meeting convened or resolution passed for the winding up or administration of the Buyer or for a provisional liquidator to be appointed in respect of the Buyer;
5.7.6 no distress, execution or other process has been levied on any of the assets of the Buyer, and no judgment creditor nor any liquidator, provisional liquidator, receiver or an administrative receiver of the Buyer has been appointed and there is no reason to believe that such a person might be appointed;
5.7.7 no voluntary arrangement has been proposed in respect of the Buyer and its creditors; and
5.7.8 the Buyer is not insolvent, or unable to pay its debts, and has not stopped paying its debts as they fall due, and no event analogous to any of the foregoing has occurred in or outside Hong Kong.
5.8 Each of the Sellers undertakes to the Buyer that it shall not dispose of or enter into any agreement or arrangement to dispose of or permit the disposal of any of the Sale Shares, the disposal of which is subject to its discretion from the date of this Agreement and until the Long Stop Date or the date when this Agreement is terminated Shares in accordance with Clause 3.3, whichever is earlier.
5.9 Each the terms of this Agreement: (i) you shall act solely as agent for the account of your customer; (ii) purchases or redemptions of Shares shall be initiated solely upon the instruction and order of your customer; (iii) the customer will have full beneficial ownership of any Shares purchased upon its authorization and order; and (iv) all transactions shall be for the account of the Sellers further undertakes customer and under no circumstances for your account, and shall be without recourse to you. Under no circumstances will you make any oral or written representations to the Buyer that it shall exercise or procure to be exercised all the voting rights attaching to the Sale Listed Shares in favour of the resolution approving the Scheme and the Share Proposal at the shareholders’ meeting of the Company to be held on 17 September 2008, and any adjournment thereofcontrary.
Appears in 1 contract
REPRESENTATIONS, WARRANTIES AND UNDERTAKINGS. 5.1 Each 7.01 The Company and the Seller hereby represent, warrant and undertake to the Purchaser (to the intent that the provisions of this Clause 7 shall continue to have full force and effect notwithstanding Completion) in the terms set out in Clause 2, Clause 5, this Clause 7 and in Schedule 3 and acknowledge that the Purchaser, in entering into this Agreement, is relying on such representations, warranties and undertakings and that the Purchaser shall be entitled to treat the same as conditions to the obligations of the Sellers represents and warrants to the Buyer that each Seller Warranty is true, accurate and not misleading at the date of Purchaser under this Agreement. Immediately before Closing.
7.02 The representations, warranties and undertakings set out in Clause 2, Clause 5, this Clause 7 and in each paragraph of the Sellers is deemed to warrant to the Buyer that each Seller Warranty is true, accurate Schedule 3 shall be separate and independent and save as expressly provided shall not misleading be limited by reference to any other paragraph or anything in this Agreement or the facts Schedules.
7.03 The representations, warranties and circumstances on undertakings set out in Clause 2, Clause 5, this Clause 7 and in each day before Closing, paragraph of Schedule 3 shall be true and for this purpose only any complete as of the date hereof and shall be deemed to be repeated as at Completion as if all references in the Seller Warranties therein to the date of this Agreement shall be construed as were references to the relevant date. Unless otherwise set out in this Agreement, no other warranty is given date of Completion.
7.04 The Seller hereby undertakes to indemnify and keep indemnified the Purchaser (for itself and as trustee for the Company) against any loss or liability suffered by the Sellers.
5.2 Each of the Sellers acknowledges that the Buyer is entering into this Agreement in reliance on each Seller Warranty which has also been given Purchaser as a representation and with the intention result of inducing the Buyer to enter into this Agreement. The Sellers shall not invoke the Buyer’s constructive or imputed knowledge of a fact or circumstance which might make a Seller Warranty untrue, inaccurate or misleading as a defence to a claim for breach of Clause 5.1.
5.3 Each Seller Warranty is to be construed independently and (except where this Agreement provides otherwise) is not limited by a provision of this Agreement or another Warranty.
5.4 Each of the Sellers represents and warrants to the Buyer that:
5.4.1 each of the Sellers is an entity duly organized and validly existing under the laws of its country of origin;
5.4.2 each of the Sellers has the legal right, full power and authority, and has taken all action necessary, to execute, deliver and to exercise its rights, and perform its obligations, under this Agreement and any other documents to be executed by each of the Sellers pursuant to or in connection with this Agreementany breach of the said representations, which when executed will constitute valid warranties and binding obligations on each Seller undertakings including, but not limited to, any diminution in the value of the assets of and its asset management clients for whose account the Sale Shares are managed and who are the beneficial owners;
5.4.3 the Sale Shares are beneficially owned any payment made or required to be made by the Sellers’ asset management clients Purchaser or the Company and any costs and expenses incurred as a result of such breach provided that the indemnity contained in managed accounts over which the Sellers have investment discretion. To the best this Clause shall be without prejudice to any other rights and remedies of the Sellers’ knowledge, there is no other person who has any legal or beneficial interest in the Sale Shares;
5.4.4 each of the Sellers is validly appointed as discretionary investment manager by the beneficial owners in respect of the Sale Shares;
5.4.5 the Sale Shares are beneficially owned by the Sellers’ asset management clients; to the best of the Sellers’ knowledge, the beneficial owners of the Sale Shares have the full legal right to sell the Sale Shares and which are free from any Encumbrances;
5.4.6 upon completion of the Scheme, the Sellers’ asset management clients will be the sole beneficial owners of the New Unicom Shares and the New Unicom ADSs;
5.4.7 each of the Sellers has not created or permitted the creation of any Encumbrance nor entered into any agreement, arrangement or obligation to create or give an Encumbrance, Purchaser in relation to any such breach of representation, warranty or undertaking and all such other rights and remedies are hereby expressly reserved to the Purchaser.
7.05 The Seller represents and warrants that (i) the business of the Sale SharesCompany shall be operated in a manner consistent with past practices during the period from the date hereof until Completion; and (ii) between the date hereof and Completion, the New Unicom Shares and/or Company shall not, without the New Unicom ADSs, and to the best prior consent in writing of the Sellers’ knowledgePurchaser, no person has claimed enter into any contracts or hire any employee or incur any single expenditure in excess of US$2,000.00 or an aggregate expenditure in excess of US$2,000.00.
7.06 The representations, warranties and undertakings set out in Clause 2, Clause 5, this Clause 7 and in each paragraph of Schedule 3 shall be deemed to be entitled to an Encumbrance in relation to any of the Sale Shares, the New Unicom Shares and/or the New Unicom ADSs;
5.4.8 to the extent it held proxy voting authority, each of the Sellers has tendered votes repeated in respect of the Shares underlying the Sale Netcom ADSs in favour of the resolution approving the scheme of arrangement under section 166 of the Companies Ordinance (Cap 32 of the Laws of Hong Kong) between the Company Life Science and the shareholders all other subsidiaries and associates of the Company at so that all references therein to the extraordinary general meeting Company shall be taken as references to Life Science and all other subsidiaries and associates of the Company to be held on 17 September 2008, and any adjournment thereof;
5.4.9 the execution and delivery of, and the performance by each of the Sellers of its obligations under, this Agreement and any other documents to be executed by it pursuant to or in connection with this Agreement will not:
(a) result in a breach of any provision of the constitutional or organisational documents of each of the Sellers;
(b) result in a breach of or give any third party a right to terminate or modify, or result in the creation of any Encumbrance under, any agreement, licence or other instrument or result in a breach of any order, judgment or decree of any court, governmental agency or regulatory body to which each of the Sellers or its nominee is a party or by which any of the Sellers or its nominee or any of their respective assets is bound; or
(c) result in any breach of any contractual covenants or investment management agreement to which each of the Sellers is subject;
5.4.10 each of the Sellers is not a “connected fund manager” (so far as defined in the Takeovers Code) or a “connected principal trader” (as defined in the Takeovers Code) of the offeror (i.e. Unicom) or the offeree company (i.e. the Company) nor a party acting in concert with the offeror and that consent from the Executive Director of the Corporate Finance Division of the Securities & Futures Commission is not required for the sale of the Sale Shares;
5.4.11 each of the Sellers is not required to obtain any other person’s consent in relation to the sale of the Sale Shares, the New Unicom Shares and the New Unicom ADSs;
5.4.12 each of the Sellers is not a connected person (as such term is defined in the Rules Governing the Listing of Securities on The Hong Kong Stock Exchange Limited) of the Company or Unicom;
5.4.13 no petition has been presented or order made and no meeting convened or resolution passed for the winding up or administration of any of the Sellers or for a provisional liquidator to be appointed in respect of any of the Sellers;
5.4.14 no distress, execution or other process has been levied on any of the assets of any of the Sellers, and no judgment creditor nor any liquidator, provisional liquidator, receiver or an administrative receiver of any of the Sellers has been appointed and there is no reason to believe that such a person might be appointed;
5.4.15 no voluntary arrangement has been proposed in respect of any of the Sellers and their creditors; and
5.4.16 each of the Sellers is not insolvent, or unable to pay its debts, and has not stopped paying its debts as they fall due, and no event analogous to any of the foregoing has occurred in or outside Hong Kongapplicable.
5.5 The Buyer represents and warrants to the Sellers that each Buyer Warranty is true, accurate and not misleading at the date of this Agreement. Immediately before Closing, the Buyer is deemed to warrant to the Sellers that each Buyer Warranty is true, accurate and not misleading by reference to the facts and circumstances on each day before Closing, and for this purpose only, any references in the Buyer Warranties to the date of this Agreement shall be construed as references to the relevant date. Unless otherwise set out in this Agreement, no other warranty is given by the Buyer.
5.6 The Buyer acknowledges that each of the Sellers is entering into this Agreement in reliance on each Buyer Warranty which has also been given as a representation and with the intention of inducing the Sellers to enter into this Agreement. The Buyer shall not invoke the Sellers’ constructive or imputed knowledge of a fact or circumstance which might make a Buyer Warranty untrue, inaccurate or misleading as a defence to a claim for breach of Clause 5.5.
5.7 The Buyer represents and warrants to the Sellers that:
5.7.1 the Buyer is a corporation duly organized and validly existing under the laws of its country of origin;
5.7.2 the Buyer has the legal right, full power and authority, and has taken all action necessary, to execute, deliver and to exercise its rights, and perform its obligations, under this Agreement and any other documents to be executed by the Buyer pursuant to or in connection with this Agreement, which when executed will constitute valid and binding obligations on the Buyer;
5.7.3 the execution and delivery of, and the performance by the Buyer of its obligations under, this Agreement and any other documents to be executed by it pursuant to or in connection with this Agreement will not:
(a) result in a breach of any provision of the constitutional or organisational documents of the Buyer; or
(b) result in a breach of or give any third party a right to terminate or modify, or result in the creation of any Encumbrance under, any agreement, licence or other instrument or result in a breach of any order, judgment or decree of any court, governmental agency or regulatory body to which the Buyer or its nominee is a party or by which any of the Buyer or its nominee or any of their respective assets is bound;
5.7.4 the Buyer is not required to obtain any other person’s consent in relation to the acquisition of the Sale Shares;
5.7.5 no petition has been presented or order made and no meeting convened or resolution passed for the winding up or administration of the Buyer or for a provisional liquidator to be appointed in respect of the Buyer;
5.7.6 no distress, execution or other process has been levied on any of the assets of the Buyer, and no judgment creditor nor any liquidator, provisional liquidator, receiver or an administrative receiver of the Buyer has been appointed and there is no reason to believe that such a person might be appointed;
5.7.7 no voluntary arrangement has been proposed in respect of the Buyer and its creditors; and
5.7.8 the Buyer is not insolvent, or unable to pay its debts, and has not stopped paying its debts as they fall due, and no event analogous to any of the foregoing has occurred in or outside Hong Kong.
5.8 Each of the Sellers undertakes to the Buyer that it shall not dispose of or enter into any agreement or arrangement to dispose of or permit the disposal of any of the Sale Shares, the disposal of which is subject to its discretion from the date of this Agreement and until the Long Stop Date or the date when this Agreement is terminated in accordance with Clause 3.3, whichever is earlier.
5.9 Each of the Sellers further undertakes to the Buyer that it shall exercise or procure to be exercised all the voting rights attaching to the Sale Listed Shares in favour of the resolution approving the Scheme and the Share Proposal at the shareholders’ meeting of the Company to be held on 17 September 2008, and any adjournment thereof.
Appears in 1 contract
Sources: Share Purchase Agreement (Immtech International Inc)
REPRESENTATIONS, WARRANTIES AND UNDERTAKINGS. 5.1 Each (a) IWC and SA Wireless hereby severally warrant and represent to Asia Pacific as at Completion:
(i) that the PMCL Shareholders' Agreement and the Side Letters have been executed substantially in the form of the Sellers represents drafts attached hereto as Exhibits B-1 and warrants to the Buyer B-2, that each Seller Warranty is true, accurate such agreements and not misleading at the date of this Agreement. Immediately before Closing, each of the Sellers is deemed other agreements referred to warrant in Clause 2.1 have been completed in accordance with their terms and that no amendments have been made to these agreements or to the Buyer that each Seller Warranty is true, accurate and not misleading by reference to the facts and circumstances on each day before Closing, and IWCPL Shareholders' Agreement (save for this purpose only any references in Deed and the Seller Warranties to the date of this Agreement shall be construed as references to the relevant date. Unless otherwise Side Letters set out in this AgreementExhibit B-2) since their respective dates of execution;
(ii) that the 1,269 Ordinary Shares and the 14,986,890 Redeemable Preference Shares to be issued and allotted to Asia Pacific shall, no other warranty is given by the Sellers.
5.2 Each at Completion, comprise 21.62% of the Sellers acknowledges issued Ordinary Shares and the issued Redeemable Preference Shares of the Company respectively and shall be issued fully paid up and that the Buyer is entering into this Agreement in reliance on each Seller Warranty which has also been given as a representation and with the intention of inducing the Buyer to enter into this Agreement. The Sellers shall not invoke the Buyer’s constructive or imputed knowledge of a fact or circumstance which might make a Seller Warranty untrue, inaccurate or misleading as a defence to a claim for breach of Clause 5.1.
5.3 Each Seller Warranty is to be construed independently and (except where this Agreement provides otherwise) is not limited by a provision of this Agreement or another Warranty.
5.4 Each of the Sellers represents and warrants to the Buyer that:
5.4.1 each of the Sellers is an entity duly organized and validly existing under the laws of its country of origin;
5.4.2 each of the Sellers has the legal right, full power and authority, and has taken all action necessary, to execute, deliver and to exercise its rights, and perform its obligations, under this Agreement and any other documents to be executed by each of the Sellers pursuant to or in connection with this Agreement, which when executed will constitute valid and binding obligations on each Seller and its asset management clients for whose account the Sale Shares are managed and who are the beneficial owners;
5.4.3 the Sale Shares are beneficially owned by the Sellers’ asset management clients in managed accounts over which the Sellers have investment discretion. To the best of the Sellers’ knowledge, there is no other person who has any legal or beneficial interest in the Sale Shares;
5.4.4 each of the Sellers is validly appointed as discretionary investment manager by the beneficial owners in respect of the Sale Shares;
5.4.5 the Sale Shares are beneficially owned by the Sellers’ asset management clients; to the best of the Sellers’ knowledge, the beneficial owners of the Sale Shares have the full legal right to sell the Sale Ordinary Shares and which are free from any Encumbrances;
5.4.6 upon the Redeemable Preference Shares shall carry the same voting and other rights as the other existing Ordinary Shares and Redeemable Preference Shares, respectively and that, subject to completion of the SchemeFirst Option, the Sellers’ asset management clients Company shall hold beneficially not less than 58.69% of the issued share capital of PMCL;
(iii) that the Memorandum and Articles of Association of the Company are in the form attached hereto as Exhibit C-1 and have been or will be amended in accordance with the sole beneficial owners resolutions of the New Unicom Shares and the New Unicom ADSs;
5.4.7 each of the Sellers has not created or permitted the creation of any Encumbrance nor entered into any agreement, arrangement or obligation to create or give an Encumbrance, in relation to any of the Sale Shares, the New Unicom Shares and/or the New Unicom ADSs, and to the best of the Sellers’ knowledge, no person has claimed to be entitled to an Encumbrance in relation to any of the Sale Shares, the New Unicom Shares and/or the New Unicom ADSs;
5.4.8 to the extent it held proxy voting authority, each of the Sellers has tendered votes in respect of the Shares underlying the Sale Netcom ADSs in favour of the resolution approving the scheme of arrangement under section 166 of the Companies Ordinance (Cap 32 of the Laws of Hong Kong) between the Company and the shareholders of the Company at the extraordinary general meeting of dated 13 August 1997 and attached hereto as Exhibit C-2;
(iv) the Company has not carried on any business, incurred any liabilities or entered into any agreements since its date of incorporation other than as contemplated in the IWCPL Shareholders' Agreement and the agreements referred to be held on 17 September 2008, in Clause 2.1 and any adjournment thereofin sub-clause (v);
5.4.9 (v) the Company has entered into a loan agreement with PMCL, a copy of which is attached hereto as Exhibit D pursuant to which the Company has agreed to advance to PMCL the sum of US$7,157,487 on the terms and conditions set out in such agreement and no amendments have been or will be made to such agreement prior to Completion;
(vi) the Company has been duly incorporated under the laws of Mauritius, is validly existing and is not engaged in any action or proceeding before any court, tribunal, arbitrator or similar authority;
(vii) the execution and delivery of, performance by it and by the Company of the agreements referred to in Clause 2.1 to which it is a party have been duly authorised and do not violate any laws of Mauritius and the performance by each of the Sellers of its obligations under, this Agreement and any other documents expressed to be executed assumed by it pursuant to or in connection with this Agreement will not:
(a) result in a breach such party constitute legal, valid and binding obligations of any provision of the constitutional or organisational documents of each of the Sellersthat party;
(bviii) result in a breach of no option or give any third party a right to terminate or modify, or result in the creation of any Encumbrance under, any agreement, licence lien or other instrument or result in a breach form of any order, judgment or decree of any court, governmental agency or regulatory body to which each of the Sellers or its nominee is a party or by which any of the Sellers or its nominee or any of their respective assets is bound; or
(c) result in any breach of any contractual covenants or investment management agreement to which each of the Sellers is subject;
5.4.10 each of the Sellers is not a “connected fund manager” (as defined in the Takeovers Code) or a “connected principal trader” (as defined in the Takeovers Code) of the offeror (i.e. Unicom) or the offeree company (i.e. the Company) nor a party acting in concert with the offeror and that consent from the Executive Director of the Corporate Finance Division of the Securities & Futures Commission is not required for the sale of the Sale Shares;
5.4.11 each of the Sellers is not required to obtain any other person’s consent in relation to the sale of the Sale Shares, the New Unicom Shares and the New Unicom ADSs;
5.4.12 each of the Sellers is not a connected person (as such term is defined in the Rules Governing the Listing of Securities on The Hong Kong Stock Exchange Limited) of the Company or Unicom;
5.4.13 no petition security has been presented granted or order made and no meeting convened or resolution passed for the winding up or administration of any of the Sellers or for a provisional liquidator agreed to be appointed granted in respect of any of the Sellers;
5.4.14 no distress, execution or shares of PMCL held by the Company other process has been levied on any of than pursuant to the assets of any of IWCPL Shareholders' Agreement and the Sellers, and no judgment creditor nor any liquidator, provisional liquidator, receiver or an administrative receiver of any of the Sellers has been appointed and there is no reason to believe that such a person might be appointed;
5.4.15 no voluntary arrangement has been proposed in respect of any of the Sellers and their creditorsPMCL Shareholders' Agreement; and
5.4.16 each of (ix) the Sellers information contained in Exhibit E is (not taking into account Asia Pacific's subscription hereunder) accurate in all material respects and is not insolvent, or unable to pay its debts, and has not stopped paying its debts as they fall due, and no event analogous to any of the foregoing has occurred in or outside Hong Kongmisleading.
5.5 The Buyer represents and warrants to the Sellers that each Buyer Warranty is true, accurate and not misleading at the date of this Agreement. Immediately before Closing, the Buyer is deemed to warrant to the Sellers that each Buyer Warranty is true, accurate and not misleading by reference to the facts and circumstances on each day before Closing, and for this purpose only, any references in the Buyer Warranties to the date of this Agreement shall be construed as references to the relevant date. Unless otherwise set out in this Agreement, no other warranty is given by the Buyer.
5.6 The Buyer acknowledges that each of the Sellers is entering into this Agreement in reliance on each Buyer Warranty which has also been given as a representation and with the intention of inducing the Sellers to enter into this Agreement. The Buyer shall not invoke the Sellers’ constructive or imputed knowledge of a fact or circumstance which might make a Buyer Warranty untrue, inaccurate or misleading as a defence to a claim for breach of Clause 5.5.
5.7 The Buyer represents and warrants to the Sellers that:
5.7.1 the Buyer is a corporation duly organized and validly existing under the laws of its country of origin;
5.7.2 the Buyer has the legal right, full power and authority, and has taken all action necessary, to execute, deliver and to exercise its rights, and perform its obligations, under this Agreement and any other documents to be executed by the Buyer pursuant to or in connection with this Agreement, which when executed will constitute valid and binding obligations on the Buyer;
5.7.3 the execution and delivery of, and the performance by the Buyer of its obligations under, this Agreement and any other documents to be executed by it pursuant to or in connection with this Agreement will not:
(a) result in a breach of any provision of the constitutional or organisational documents of the Buyer; or
(b) result in a breach of or give any third party a right to terminate or modify, or result in the creation of any Encumbrance under, any agreement, licence or other instrument or result in a breach of any order, judgment or decree of any court, governmental agency or regulatory body to which the Buyer or its nominee is a party or by which any of the Buyer or its nominee or any of their respective assets is bound;
5.7.4 the Buyer is not required to obtain any other person’s consent in relation to the acquisition of the Sale Shares;
5.7.5 no petition has been presented or order made and no meeting convened or resolution passed for the winding up or administration of the Buyer or for a provisional liquidator to be appointed in respect of the Buyer;
5.7.6 no distress, execution or other process has been levied on any of the assets of the Buyer, and no judgment creditor nor any liquidator, provisional liquidator, receiver or an administrative receiver of the Buyer has been appointed and there is no reason to believe that such a person might be appointed;
5.7.7 no voluntary arrangement has been proposed in respect of the Buyer and its creditors; and
5.7.8 the Buyer is not insolvent, or unable to pay its debts, and has not stopped paying its debts as they fall due, and no event analogous to any of the foregoing has occurred in or outside Hong Kong.
5.8 Each of the Sellers undertakes to the Buyer that it shall not dispose of or enter into any agreement or arrangement to dispose of or permit the disposal of any of the Sale Shares, the disposal of which is subject to its discretion from the date of this Agreement and until the Long Stop Date or the date when this Agreement is terminated in accordance with Clause 3.3, whichever is earlier.
5.9 Each of the Sellers further undertakes to the Buyer that it shall exercise or procure to be exercised all the voting rights attaching to the Sale Listed Shares in favour of the resolution approving the Scheme and the Share Proposal at the shareholders’ meeting of the Company to be held on 17 September 2008, and any adjournment thereof.
Appears in 1 contract
Sources: Shareholders' Agreement (International Wireless Communications Holdings Inc)
REPRESENTATIONS, WARRANTIES AND UNDERTAKINGS. 5.1 Each of the Sellers represents The Vendor hereby represents, warrants and warrants to the Buyer that each Seller Warranty is true, accurate and not misleading at the date of this Agreement. Immediately before Closing, each of the Sellers is deemed to warrant to the Buyer that each Seller Warranty is true, accurate and not misleading by reference to the facts and circumstances on each day before Closing, and for this purpose only any references in the Seller Warranties to the date of this Agreement shall be construed as references to the relevant date. Unless otherwise set out in this Agreement, no other warranty is given by the Sellers.
5.2 Each of the Sellers acknowledges that the Buyer is entering into this Agreement in reliance on each Seller Warranty which has also been given as a representation and with the intention of inducing the Buyer to enter into this Agreement. The Sellers shall not invoke the Buyer’s constructive or imputed knowledge of a fact or circumstance which might make a Seller Warranty untrue, inaccurate or misleading as a defence to a claim for breach of Clause 5.1.
5.3 Each Seller Warranty is to be construed independently and (except where this Agreement provides otherwise) is not limited by a provision of this Agreement or another Warranty.
5.4 Each of the Sellers represents and warrants to the Buyer that:
5.4.1 each of the Sellers is an entity duly organized and validly existing under the laws of its country of origin;
5.4.2 each of the Sellers has the legal right, full power and authority, and has taken all action necessary, to execute, deliver and to exercise its rights, and perform its obligations, under this Agreement and any other documents to be executed by each of the Sellers pursuant to or in connection with this Agreement, which when executed will constitute valid and binding obligations on each Seller and its asset management clients for whose account the Sale Shares are managed and who are the beneficial owners;
5.4.3 the Sale Shares are beneficially owned by the Sellers’ asset management clients in managed accounts over which the Sellers have investment discretion. To the best of the Sellers’ knowledge, there is no other person who has any legal or beneficial interest in the Sale Shares;
5.4.4 each of the Sellers is validly appointed as discretionary investment manager by the beneficial owners in respect of the Sale Shares;
5.4.5 the Sale Shares are beneficially owned by the Sellers’ asset management clients; to the best of the Sellers’ knowledge, the beneficial owners of the Sale Shares have the full legal right to sell the Sale Shares and which are free from any Encumbrances;
5.4.6 upon completion of the Scheme, the Sellers’ asset management clients will be the sole beneficial owners of the New Unicom Shares and the New Unicom ADSs;
5.4.7 each of the Sellers has not created or permitted the creation of any Encumbrance nor entered into any agreement, arrangement or obligation to create or give an Encumbrance, in relation to any of the Sale Shares, the New Unicom Shares and/or the New Unicom ADSs, and to the best of the Sellers’ knowledge, no person has claimed to be entitled to an Encumbrance in relation to any of the Sale Shares, the New Unicom Shares and/or the New Unicom ADSs;
5.4.8 to the extent it held proxy voting authority, each of the Sellers has tendered votes in respect of the Shares underlying the Sale Netcom ADSs in favour of the resolution approving the scheme of arrangement under section 166 of the Companies Ordinance (Cap 32 of the Laws of Hong Kong) between the Company and the shareholders of the Company at the extraordinary general meeting of the Company to be held on 17 September 2008, and any adjournment thereof;
5.4.9 the execution and delivery of, and the performance by each of the Sellers of its obligations under, this Agreement and any other documents to be executed by it pursuant to or in connection with this Agreement will not:
(a) result in a breach of any provision of the constitutional or organisational documents of each of the Sellers;
(b) result in a breach of or give any third party a right to terminate or modify, or result in the creation of any Encumbrance under, any agreement, licence or other instrument or result in a breach of any order, judgment or decree of any court, governmental agency or regulatory body to which each of the Sellers or its nominee is a party or by which any of the Sellers or its nominee or any of their respective assets is bound; or
(c) result in any breach of any contractual covenants or investment management agreement to which each of the Sellers is subject;
5.4.10 each of the Sellers is not a “connected fund manager” (as defined in the Takeovers Code) or a “connected principal trader” (as defined in the Takeovers Code) of the offeror (i.e. Unicom) or the offeree company (i.e. the Company) nor a party acting in concert with the offeror and that consent from the Executive Director of the Corporate Finance Division of the Securities & Futures Commission is not required for the sale of the Sale Shares;
5.4.11 each of the Sellers is not required to obtain any other person’s consent in relation to the sale of the Sale Shares, the New Unicom Shares and the New Unicom ADSs;
5.4.12 each of the Sellers is not a connected person (as such term is defined in the Rules Governing the Listing of Securities on The Hong Kong Stock Exchange Limited) of the Company or Unicom;
5.4.13 no petition has been presented or order made and no meeting convened or resolution passed for the winding up or administration of any of the Sellers or for a provisional liquidator to be appointed in respect of any of the Sellers;
5.4.14 no distress, execution or other process has been levied on any of the assets of any of the Sellers, and no judgment creditor nor any liquidator, provisional liquidator, receiver or an administrative receiver of any of the Sellers has been appointed and there is no reason to believe that such a person might be appointed;
5.4.15 no voluntary arrangement has been proposed in respect of any of the Sellers and their creditors; and
5.4.16 each of the Sellers is not insolvent, or unable to pay its debts, and has not stopped paying its debts as they fall due, and no event analogous to any of the foregoing has occurred in or outside Hong Kong.
5.5 The Buyer represents and warrants to the Sellers that each Buyer Warranty is true, accurate and not misleading at the date of this Agreement. Immediately before Closing, the Buyer is deemed to warrant to the Sellers that each Buyer Warranty is true, accurate and not misleading by reference to the facts and circumstances on each day before Closing, and for this purpose only, any references in the Buyer Warranties to the date of this Agreement shall be construed as references to the relevant date. Unless otherwise set out in this Agreement, no other warranty is given by the Buyer.
5.6 The Buyer acknowledges that each of the Sellers is entering into this Agreement in reliance on each Buyer Warranty which has also been given as a representation and with the intention of inducing the Sellers to enter into this Agreement. The Buyer shall not invoke the Sellers’ constructive or imputed knowledge of a fact or circumstance which might make a Buyer Warranty untrue, inaccurate or misleading as a defence to a claim for breach of Clause 5.5.
5.7 The Buyer represents and warrants to the Sellers that:
5.7.1 the Buyer is a corporation duly organized and validly existing under the laws of its country of origin;
5.7.2 the Buyer has the legal right, full power and authority, and has taken all action necessary, to execute, deliver and to exercise its rights, and perform its obligations, under this Agreement and any other documents to be executed by the Buyer pursuant to or in connection with this Agreement, which when executed will constitute valid and binding obligations on the Buyer;
5.7.3 the execution and delivery of, and the performance by the Buyer of its obligations under, this Agreement and any other documents to be executed by it pursuant to or in connection with this Agreement will not:
(a) result in a breach of any provision of the constitutional or organisational documents of the Buyer; or
(b) result in a breach of or give any third party a right to terminate or modify, or result in the creation of any Encumbrance under, any agreement, licence or other instrument or result in a breach of any order, judgment or decree of any court, governmental agency or regulatory body to which the Buyer or its nominee is a party or by which any of the Buyer or its nominee or any of their respective assets is bound;
5.7.4 the Buyer is not required to obtain any other person’s consent in relation to the acquisition of the Sale Shares;
5.7.5 no petition has been presented or order made and no meeting convened or resolution passed for the winding up or administration of the Buyer or for a provisional liquidator to be appointed in respect of the Buyer;
5.7.6 no distress, execution or other process has been levied on any of the assets of the Buyer, and no judgment creditor nor any liquidator, provisional liquidator, receiver or an administrative receiver of the Buyer has been appointed and there is no reason to believe that such a person might be appointed;
5.7.7 no voluntary arrangement has been proposed in respect of the Buyer and its creditors; and
5.7.8 the Buyer is not insolvent, or unable to pay its debts, and has not stopped paying its debts as they fall due, and no event analogous to any of the foregoing has occurred in or outside Hong Kong.
5.8 Each of the Sellers undertakes to the Buyer that it shall not dispose of or enter into any agreement or arrangement to dispose of or permit the disposal of any of the Sale Shares, the disposal of which is subject to its discretion from Purchaser as at the date of this Agreement and until as at the Long Stop Completion Date as follows:-
(a) the Vendor is the beneficial and legal owner of all of the Sale Shares and the Sale Loan free and clear of any lien, charge or encumbrance whatsoever and the Company has not exercised any lien over any of the Sale Shares or the date Sale Loan and there is outstanding no call on any of the Sale Shares and all of the Sale Shares are fully paid; and
(b) this Agreement, when this Agreement is terminated executed and delivered by the Vendor, constitutes a legal, valid and binding obligation of the Vendor, enforceable against him in accordance with Clause 3.3its terms, whichever is earliersubject to bankruptcy, insolvency, moratorium or any similar laws.
5.9 Each 5.2 If, prior to Completion, any of the Sellers further representations, warranties or undertakings as set out in Clause 5.1 are found to be untrue, misleading or incorrect or have not been fully carried out in any material respect the Purchaser shall not be bound to complete the purchase of the Shares and the Purchaser may by notice rescind this Agreement without liability on its part. The right conferred upon the Purchaser by this Clause is in addition to and without prejudice to any other rights and remedies of the Purchaser.
5.3 The Purchaser hereby represents, warrants and undertakes to the Buyer Vendor as at the date of this Agreement and as at the Completion Date that it shall exercise or procure to be exercised all this Agreement, when executed and delivered by the voting rights attaching to the Sale Listed Shares in favour Purchaser, constitutes a legal, valid and binding obligation of the resolution approving the Scheme and the Share Proposal at the shareholders’ meeting of the Company Purchaser, enforceable against it in accordance with its terms, subject to be held on 17 September 2008bankruptcy, and insolvency, reorganisation, moratorium or any adjournment thereofsimilar laws.
Appears in 1 contract
Sources: Share Purchase Agreement (Melco PBL Entertainment (Macau) LTD)
REPRESENTATIONS, WARRANTIES AND UNDERTAKINGS. 5.1 Each of the Sellers Pledgor represents and warrants for itself to the Buyer that each Seller Warranty is true, accurate and not misleading at Pledgee as set out hereafter :.
7.1 All Shares held by the Pledgor in the Companies on the date of this Agreement. Immediately before Closinghereof have been duly issued and are fully paid, each are in registered form and are all held by, and registered in, the name of the Sellers Pledgor, and on the date hereof the Pledged Shares represent 100% of the issued share capital of the Companies;
7.2 To the extent the Pledgor holds any Beneficiary Certificates in any of the Companies, such Beneficiary Certificates held by the Pledgor in the Companies on the date hereof (if any) have been duly issued and are fully paid, are in registered form and are all held by, and registered in, the name of the Pledgor, and on the date hereof the Pledged Beneficiary Certificates represent 100% of the Beneficiary Certificates issued by the Companies;
7.3 The Pledgor is deemed the sole legal owner of, and has legal title to, the Pledged Shares registered in his name in the Companies, free from any Lien except as created by this Agreement or any Lien permitted under any First Lien Document;
7.4 To the extent the Pledgor holds any Beneficiary Certificates in any of the Companies, the Pledgor is the sole legal owner of, and has legal title to, the Pledged Shares registered in his name in the Companies, free from any Lien except as created by this Agreement or any Lien permitted under any First Lien Document;
7.5 On the date hereof the Pledge over its Pledged Shares and the inscription thereof in the Register of Shareholders pursuant to warrant this Pledge is not contrary to any court order or applicable to the Buyer that each Seller Warranty is true, accurate and not misleading by reference Pledgor or of the relevant Company;
7.6 On the date hereof to the facts extent the Pledgor holds any Beneficiary Certificates in any of the Companies, the Pledge over its Pledged Beneficiary Certificates and circumstances on each day before Closing, and for this purpose only any references the inscription thereof in the Seller Warranties BC Register pursuant to this Pledge is not contrary to any court order or applicable to the date Pledgor or of this Agreement shall be construed as references to the relevant date. Unless otherwise set out Company;
7.7 This Agreement constitutes its legal, valid and binding obligations and operates as a valid pledge of its Pledged Assets in accordance with its terms and the Pledge created pursuant to this Agreement, no other warranty is given by the Sellers.
5.2 Each and once perfected pursuant to Clause 2, constitutes a legal, valid, binding and enforceable first priority and first ranking security interest over its Pledged Shares and its Pledged Beneficiary Certificates (if any) in favour of the Sellers acknowledges that Pledgee in respect of all Secured Obligations and in each case prior and superior to the Buyer is entering into this Agreement in reliance on each Seller Warranty which rights of other persons, except for any mandatory privileges preferred by applicable law;
7.8 The Pledgor has also been given as a representation and with the intention of inducing the Buyer necessary power to enable it to enter into this Agreement. The Sellers shall not invoke the Buyer’s constructive or imputed knowledge of a fact or circumstance which might make a Seller Warranty untrue, inaccurate or misleading as a defence to a claim for breach of Clause 5.1.
5.3 Each Seller Warranty is to be construed independently and (except where this Agreement provides otherwise) is not limited by a provision of this Agreement or another Warranty.
5.4 Each of the Sellers represents and warrants to the Buyer that:
5.4.1 each of the Sellers is an entity duly organized and validly existing under the laws of its country of origin;
5.4.2 each of the Sellers has the legal right, full power and authority, and has taken all action necessary, to execute, deliver and to exercise its rights, and perform its obligations, obligations under this Agreement and all necessary consents and authorizations for the execution of this Pledge Agreement have been obtained by the Pledgor and the Company in which it holds Shares or Beneficiary Certificates and are in full force and effect except as could not reasonably be expected to have a Material Adverse Effect,
7.9 For the avoidance of doubt, the Pledgor hereby waives any other documents to be executed by rights arising for it (if any) under Article 2037 of the Luxembourg Civil Code; and
7.10 it will, and will cause each of the Sellers pursuant Companies to, assist the Pledgee in order to or obtain all necessary material consents, approvals and authorisations from any relevant authorities in connection with this Agreement, which when executed will constitute valid and binding obligations on each Seller and its asset management clients for whose account order to permit the Sale Shares are managed and who are the beneficial owners;
5.4.3 the Sale Shares are beneficially owned exercise by the Sellers’ asset management clients in managed accounts over which the Sellers have investment discretion. To the best Pledgee of its rights and powers under this Pledge Agreement upon enforcement of the Sellers’ knowledge, there is no other person who has any legal or beneficial interest in the Sale Shares;
5.4.4 each of the Sellers is validly appointed as discretionary investment manager by the beneficial owners in respect of the Sale Shares;
5.4.5 the Sale Shares are beneficially owned by the Sellers’ asset management clients; to the best of the Sellers’ knowledge, the beneficial owners of the Sale Shares have the full legal right to sell the Sale Shares and which are free from any Encumbrances;
5.4.6 upon completion of the Scheme, the Sellers’ asset management clients will be the sole beneficial owners of the New Unicom Shares and the New Unicom ADSs;
5.4.7 each of the Sellers has not created or permitted the creation of any Encumbrance nor entered into any agreement, arrangement or obligation to create or give an Encumbrance, in relation to any of the Sale Shares, the New Unicom Shares and/or the New Unicom ADSs, and to the best of the Sellers’ knowledge, no person has claimed to be entitled to an Encumbrance in relation to any of the Sale Shares, the New Unicom Shares and/or the New Unicom ADSs;
5.4.8 to the extent it held proxy voting authority, each of the Sellers has tendered votes in respect of the Shares underlying the Sale Netcom ADSs in favour of the resolution approving the scheme of arrangement under section 166 of the Companies Ordinance (Cap 32 of the Laws of Hong Kong) between the Company and the shareholders of the Company at the extraordinary general meeting of the Company to be held on 17 September 2008, and any adjournment thereof;
5.4.9 the execution and delivery of, and the performance by each of the Sellers of its obligations under, this Agreement and any other documents to be executed by it pursuant to or in connection with this Agreement will not:
(a) result in a breach of any provision of the constitutional or organisational documents of each of the Sellers;
(b) result in a breach of or give any third party a right to terminate or modify, or result in the creation of any Encumbrance under, any agreement, licence or other instrument or result in a breach of any order, judgment or decree of any court, governmental agency or regulatory body to which each of the Sellers or its nominee is a party or by which any of the Sellers or its nominee or any of their respective assets is bound; or
(c) result in any breach of any contractual covenants or investment management agreement to which each of the Sellers is subject;
5.4.10 each of the Sellers is not a “connected fund manager” (as defined in the Takeovers Code) or a “connected principal trader” (as defined in the Takeovers Code) of the offeror (i.e. Unicom) or the offeree company (i.e. the Company) nor a party acting in concert with the offeror and that consent from the Executive Director of the Corporate Finance Division of the Securities & Futures Commission is not required for the sale of the Sale Shares;
5.4.11 each of the Sellers is not required to obtain any other person’s consent in relation to the sale of the Sale Shares, the New Unicom Shares and the New Unicom ADSs;
5.4.12 each of the Sellers is not a connected person (as such term is defined in the Rules Governing the Listing of Securities on The Hong Kong Stock Exchange Limited) of the Company or Unicom;
5.4.13 no petition has been presented or order made and no meeting convened or resolution passed for the winding up or administration of any of the Sellers or for a provisional liquidator to be appointed in respect of any of the Sellers;
5.4.14 no distress, execution or other process has been levied on any of the assets of any of the Sellers, and no judgment creditor nor any liquidator, provisional liquidator, receiver or an administrative receiver of any of the Sellers has been appointed and there is no reason to believe that such a person might be appointed;
5.4.15 no voluntary arrangement has been proposed in respect of any of the Sellers and their creditors; and
5.4.16 each of the Sellers is not insolvent, or unable to pay its debts, and has not stopped paying its debts as they fall due, and no event analogous to any of the foregoing has occurred in or outside Hong KongPledge.
5.5 The Buyer represents and warrants to the Sellers that each Buyer Warranty is true, accurate and not misleading at the date of this Agreement. Immediately before Closing, the Buyer is deemed to warrant to the Sellers that each Buyer Warranty is true, accurate and not misleading by reference to the facts and circumstances on each day before Closing, and for this purpose only, any references in the Buyer Warranties to the date of this Agreement shall be construed as references to the relevant date. Unless otherwise set out in this Agreement, no other warranty is given by the Buyer.
5.6 The Buyer acknowledges that each of the Sellers is entering into this Agreement in reliance on each Buyer Warranty which has also been given as a representation and with the intention of inducing the Sellers to enter into this Agreement. The Buyer shall not invoke the Sellers’ constructive or imputed knowledge of a fact or circumstance which might make a Buyer Warranty untrue, inaccurate or misleading as a defence to a claim for breach of Clause 5.5.
5.7 The Buyer represents and warrants to the Sellers that:
5.7.1 the Buyer is a corporation duly organized and validly existing under the laws of its country of origin;
5.7.2 the Buyer has the legal right, full power and authority, and has taken all action necessary, to execute, deliver and to exercise its rights, and perform its obligations, under this Agreement and any other documents to be executed by the Buyer pursuant to or in connection with this Agreement, which when executed will constitute valid and binding obligations on the Buyer;
5.7.3 the execution and delivery of, and the performance by the Buyer of its obligations under, this Agreement and any other documents to be executed by it pursuant to or in connection with this Agreement will not:
(a) result in a breach of any provision of the constitutional or organisational documents of the Buyer; or
(b) result in a breach of or give any third party a right to terminate or modify, or result in the creation of any Encumbrance under, any agreement, licence or other instrument or result in a breach of any order, judgment or decree of any court, governmental agency or regulatory body to which the Buyer or its nominee is a party or by which any of the Buyer or its nominee or any of their respective assets is bound;
5.7.4 the Buyer is not required to obtain any other person’s consent in relation to the acquisition of the Sale Shares;
5.7.5 no petition has been presented or order made and no meeting convened or resolution passed for the winding up or administration of the Buyer or for a provisional liquidator to be appointed in respect of the Buyer;
5.7.6 no distress, execution or other process has been levied on any of the assets of the Buyer, and no judgment creditor nor any liquidator, provisional liquidator, receiver or an administrative receiver of the Buyer has been appointed and there is no reason to believe that such a person might be appointed;
5.7.7 no voluntary arrangement has been proposed in respect of the Buyer and its creditors; and
5.7.8 the Buyer is not insolvent, or unable to pay its debts, and has not stopped paying its debts as they fall due, and no event analogous to any of the foregoing has occurred in or outside Hong Kong.
5.8 Each of the Sellers undertakes to the Buyer that it shall not dispose of or enter into any agreement or arrangement to dispose of or permit the disposal of any of the Sale Shares, the disposal of which is subject to its discretion from the date of this Agreement and until the Long Stop Date or the date when this Agreement is terminated in accordance with Clause 3.3, whichever is earlier.
5.9 Each of the Sellers further undertakes to the Buyer that it shall exercise or procure to be exercised all the voting rights attaching to the Sale Listed Shares in favour of the resolution approving the Scheme and the Share Proposal at the shareholders’ meeting of the Company to be held on 17 September 2008, and any adjournment thereof.
Appears in 1 contract
Sources: Shares and Beneficiary Certificates Pledge Agreement (Intelsat S.A.)
REPRESENTATIONS, WARRANTIES AND UNDERTAKINGS. 5.1 Each of the Sellers represents and warrants Subject to the Buyer that each Seller Warranty is true, accurate and not misleading at the date provisions of this Agreement. Immediately before Closing, each of the Sellers is deemed to warrant to the Buyer that each Seller Warranty is true, accurate and not misleading by reference to the facts and circumstances on each day before Closing, and for this purpose only any references in the Seller Warranties to the date of this Agreement shall be construed as references to the relevant date. Unless otherwise set out in this Agreement, no other warranty is given by the Sellers.
5.2 Each of the Sellers acknowledges that the Buyer is entering into this Agreement in reliance on each Seller Warranty which has also been given as a representation and with the intention of inducing the Buyer to enter into this Agreement. The Sellers shall not invoke the Buyer’s constructive or imputed knowledge of a fact or circumstance which might make a Seller Warranty untrue, inaccurate or misleading as a defence to a claim for breach of Clause 5.1.
5.3 Each Seller Warranty is to be construed independently and (except where this Agreement provides otherwise) is not limited by a provision of this Agreement or another Warranty.
5.4 Each of the Sellers represents and warrants to the Buyer that:
5.4.1 each of the Sellers is an entity duly organized and validly existing under the laws of its country of origin;
5.4.2 each of the Sellers has the legal right, full power and authority, and has taken all action necessary, to execute, deliver and to exercise its rights, and perform its obligations, under this Agreement and any other documents to be executed by each of the Sellers pursuant to or in connection with this AgreementSchedule 2, which when executed will constitute valid and binding obligations on each Seller and its asset management clients shall apply to all claims for whose account the Sale Shares are managed and who are the beneficial owners;
5.4.3 the Sale Shares are beneficially owned by the Sellers’ asset management clients in managed accounts over which the Sellers have investment discretion. To the best breaches of the Sellers’ knowledge, there is no other person who has any legal or beneficial interest in the Sale Shares;
5.4.4 each of the Sellers is validly appointed as discretionary investment manager by the beneficial owners in respect of the Sale Shares;
5.4.5 the Sale Shares are beneficially owned by the Sellers’ asset management clients; to the best of the Sellers’ knowledge, the beneficial owners of the Sale Shares have the full legal right to sell the Sale Shares and which are free from any Encumbrances;
5.4.6 upon completion of the Scheme, the Sellers’ asset management clients will be the sole beneficial owners of the New Unicom Shares and the New Unicom ADSs;
5.4.7 each of the Sellers has not created or permitted the creation of any Encumbrance nor entered into any agreement, arrangement or obligation to create or give an Encumbrance, in relation to any of the Sale Shares, the New Unicom Shares and/or the New Unicom ADSs, and to the best of the Sellers’ knowledge, no person has claimed to be entitled to an Encumbrance in relation to any of the Sale Shares, the New Unicom Shares and/or the New Unicom ADSs;
5.4.8 to the extent it held proxy voting authority, each of the Sellers has tendered votes in respect of the Shares underlying the Sale Netcom ADSs in favour of the resolution approving the scheme of arrangement under section 166 of the Companies Ordinance (Cap 32 of the Laws of Hong Kong) between the Company and the shareholders of the Company at the extraordinary general meeting of the Company to be held on 17 September 2008, and any adjournment thereof;
5.4.9 the execution and delivery of, and the performance by each of the Sellers of its obligations under, this Agreement and any other documents to be executed by it pursuant to or in connection with this Agreement will notWarranties:
(a) result the Vendor hereby warrants and represents to the Purchaser that the Vendor Warranties are true and accurate in a breach of any provision all material respects; and
(b) the Purchaser hereby warrants and represents to the Vendors that the Purchaser Warranties are true and accurate in all material respects.
5.2 The Purchaser agrees and acknowledges that:
(a) the total aggregate liability of the constitutional Vendor for any claim or organisational documents claims of each of breaches under this Agreement (excluding other legal and other costs and expenses) shall not in any event exceed an amount equal to the SellersConsideration;
(b) result no claim may be brought against the Vendor in respect of a breach of any of the Vendor Warranties after expiration of a period of twelve months from the Completion Date (“Warranty Expiry Date") and the Vendor shall not be liable in respect of a breach of any of the Vendor Warranties unless it shall have received written notice from the Purchaser prior to the Warranty Expiry Date giving reasonable details of the relevant claim and any such claim shall (if not previously satisfied, settled or withdrawn) be deemed to have been waived or withdrawn at the expiry of a period of six months after the Warranty Expiry Date unless proceedings in respect thereof shall have already been commenced against the Vendor; and
(c) no claim shall lie against the Vendor (under or in relation to the Vendor Warranties or any provision of this Agreement) or to the extent that such claim is attributable to any voluntary act, omission, transaction, or arrangement carried out directly by the Purchaser or on its behalf or by persons deriving title from any of the Purchaser after the Completion.
5.3 If at any time before Completion, the Purchaser shall find that any of the Vendor Warranties is not, or has not been, true and accurate in all material respects or is (in its reasonable opinion) incapable of being rectified before Completion, or (as the case may be) the Vendors shall find that any of the Purchaser Warranties is not, or has not been, true and accurate in all material respects or is (in its reasonable opinion) incapable of being rectified before Completion, the Purchaser or the Vendors (as the case may be) shall not be bound to complete the sale and purchase of the Sale Shares (if not yet completed immediately after the signing of this Agreement) and may rescind this Agreement by written notice to the other Party. For the avoidance of doubt, no party may rely on the breach or non-compliance of its own Warranties to rescind this Agreement.
5.4 Each Party shall promptly notify the other Party in writing of any fact, event or circumstance (including any omission to act) which it becomes aware of, that constitutes a breach of or give is in any third party a right to terminate or modify, or result in the creation of any Encumbrance under, any agreement, licence or other instrument or result in a breach of any order, judgment or decree of any court, governmental agency or regulatory body to which each of the Sellers or its nominee is a party or by which way inconsistent with any of the Sellers Warranties given by such party or its nominee or any of their respective assets is bound; or
(c) result in any breach of any contractual covenants or investment management agreement to which each of the Sellers is subject;
5.4.10 each of the Sellers is not a “connected fund manager” (as defined in the Takeovers Code) or a “connected principal trader” (as defined in the Takeovers Code) of the offeror (i.e. Unicom) or the offeree company (i.e. the Company) nor a party acting in concert with the offeror and that consent from the Executive Director of the Corporate Finance Division of the Securities & Futures Commission is not required for the sale of the Sale Shares;
5.4.11 each of the Sellers is not required to obtain any other person’s consent in relation to the sale of the Sale Shares, the New Unicom Shares and the New Unicom ADSs;
5.4.12 each of the Sellers is not a connected person (as such term is defined in the Rules Governing the Listing of Securities on The Hong Kong Stock Exchange Limited) of the Company or Unicom;
5.4.13 no petition has been presented or order made and no meeting convened or resolution passed for the winding up or administration of may make any of the Sellers or for a provisional liquidator to be appointed in respect of any of the Sellers;
5.4.14 no distress, execution or other process has been levied on any of the assets of any of the Sellers, and no judgment creditor nor any liquidator, provisional liquidator, receiver or an administrative receiver of any of the Sellers has been appointed and there is no reason to believe that such a person might be appointed;
5.4.15 no voluntary arrangement has been proposed in respect of any of the Sellers and their creditors; and
5.4.16 each of the Sellers is not insolvent, or unable to pay its debts, and has not stopped paying its debts as they fall due, and no event analogous to any of the foregoing has occurred in or outside Hong Kong.
5.5 The Buyer represents and warrants to the Sellers that each Buyer Warranty is true, accurate and not misleading at the date of this Agreement. Immediately before Closing, the Buyer is deemed to warrant to the Sellers that each Buyer Warranty is true, accurate and not misleading by reference to the facts and circumstances on each day before Closing, and for this purpose only, any references in the Buyer Warranties to the date of this Agreement shall be construed as references to the relevant date. Unless otherwise set out in this Agreement, no other warranty is given by the Buyersuch party not being true and accurate in all material respects.
5.6 The Buyer acknowledges that each of the Sellers is entering into this Agreement in reliance on each Buyer Warranty which has also been given as a representation and with the intention of inducing the Sellers to enter into this Agreement. The Buyer shall not invoke the Sellers’ constructive or imputed knowledge of a fact or circumstance which might make a Buyer Warranty untrue, inaccurate or misleading as a defence to a claim for breach of Clause 5.5.
5.7 The Buyer represents and warrants to the Sellers that:
5.7.1 the Buyer is a corporation duly organized and validly existing under the laws of its country of origin;
5.7.2 the Buyer has the legal right, full power and authority, and has taken all action necessary, to execute, deliver and to exercise its rights, and perform its obligations, under this Agreement and any other documents to be executed by the Buyer pursuant to or in connection with this Agreement, which when executed will constitute valid and binding obligations on the Buyer;
5.7.3 the execution and delivery of, and the performance by the Buyer of its obligations under, this Agreement and any other documents to be executed by it pursuant to or in connection with this Agreement will not:
(a) result in a breach of any provision of the constitutional or organisational documents of the Buyer; or
(b) result in a breach of or give any third party a right to terminate or modify, or result in the creation of any Encumbrance under, any agreement, licence or other instrument or result in a breach of any order, judgment or decree of any court, governmental agency or regulatory body to which the Buyer or its nominee is a party or by which any of the Buyer or its nominee or any of their respective assets is bound;
5.7.4 the Buyer is not required to obtain any other person’s consent in relation to the acquisition of the Sale Shares;
5.7.5 no petition has been presented or order made and no meeting convened or resolution passed for the winding up or administration of the Buyer or for a provisional liquidator to be appointed in respect of the Buyer;
5.7.6 no distress, execution or other process has been levied on any of the assets of the Buyer, and no judgment creditor nor any liquidator, provisional liquidator, receiver or an administrative receiver of the Buyer has been appointed and there is no reason to believe that such a person might be appointed;
5.7.7 no voluntary arrangement has been proposed in respect of the Buyer and its creditors; and
5.7.8 the Buyer is not insolvent, or unable to pay its debts, and has not stopped paying its debts as they fall due, and no event analogous to any of the foregoing has occurred in or outside Hong Kong.
5.8 Each of the Sellers undertakes to the Buyer that it shall not dispose of or enter into any agreement or arrangement to dispose of or permit the disposal of any of the Sale Shares, the disposal of which is subject to its discretion from the date of this Agreement and until the Long Stop Date or the date when this Agreement is terminated in accordance with Clause 3.3, whichever is earlier.
5.9 Each of the Sellers further undertakes to the Buyer that it shall exercise or procure to be exercised all the voting rights attaching to the Sale Listed Shares in favour of the resolution approving the Scheme and the Share Proposal at the shareholders’ meeting of the Company to be held on 17 September 2008, and any adjournment thereof.
Appears in 1 contract
Sources: Sale and Purchase Agreement
REPRESENTATIONS, WARRANTIES AND UNDERTAKINGS. 5.1 6.1.1 The Sellers jointly and severally represent, warrant and undertake to the Buyer that:-
(a) each Warranty is true, accurate, complete and not misleading as at the date hereof;
(b) upon any material event occurring or material matter arising which may result in any of the Warranties being untrue, inaccurate, incomplete or misleading in any material respect as at the date hereof or any material breach or material non-fulfilment of any of the undertakings, agreements or obligations of the Sellers or any of them contained in this Agreement the Sellers will promptly notify the Buyer of the same and give details of and, where requested, investigate fully all relevant circumstances; and
(c) that the contents of the Disclosure Schedule are true, accurate and complete in all respects and fully clearly and accurately divulge every matter to which they relate.
6.1.2 Each of the Sellers represents located in the United States of America represent and warrants to the Buyer that each Seller Warranty is true, accurate and not misleading at the date of this Agreement. Immediately before Closing, each of the Sellers is deemed to warrant to the Buyer that each US Seller Warranty is true, accurate accurate, complete and not misleading by reference to the facts and circumstances on each day before Closing, and for this purpose only any references in the Seller Warranties to as at the date of this Agreement shall be construed as references hereof in relation to the relevant date. Unless otherwise set out in this Agreement, no other warranty is given by the Sellers.that Seller;
5.2 6.1.3 Each of the Sellers acknowledges that located outside the United States of America represent and warrant to the Buyer is entering into this Agreement in reliance on that each Seller Warranty which has also been given as a representation and with the intention of inducing the Buyer to enter into this Agreement. The Sellers shall not invoke the Buyer’s constructive or imputed knowledge of a fact or circumstance which might make a Seller Warranty untrue, inaccurate or misleading as a defence to a claim for breach of Clause 5.1.
5.3 Each Foreign Seller Warranty is true, accurate, complete and not misleading as at the date hereof in relation to be construed independently and (except where that Seller;
6.2 The Warranties contained in this Agreement provides otherwise) is not limited by a will each remain in full force and effect beyond and notwithstanding Closing and are each made without prejudice to any of the others. Subject to Clauses 6.9 to 6.13 and Clauses 6.15 to 6.18 and any matters fully, fairly and specifically disclosed in the Disclosure Schedule in accordance with Clause 6.8 no provision of this Agreement will limit the extent or another Warranty.application of any Warranty no other information relating to the Company of which the Buyer or any of its advisers has knowledge (actual or constructive) will prejudice any claim made by the Buyer under any such warranties or operate to reduce any amounts recoverable. Notwithstanding the above or any other provision of this Agreement:
5.4 Each 6.2.1 the Warranties contained in paragraph 1 of Schedule 3 the Foreign Seller Warranties and the US Seller Warranties shall not be or be capable of being qualified or discharged by the Disclosure Schedule, any provision of Clause 6 or in any other way PROVIDED THAT the liability of the Sellers represents and warrants shall be subject to the Buyer that:
5.4.1 each provisions of Clause 6.17 save that the liability of the Investor Sellers is an entity duly organized and validly existing under the laws of its country of origin;
5.4.2 each of the Sellers has the legal right, full power and authority, and has taken all action necessary, to execute, deliver and to exercise its rights, and perform its obligations, under this Agreement and any other documents to be executed by each of the Sellers pursuant to or in connection with this Agreement, which when executed will constitute valid and binding obligations on each Seller and its asset management clients for whose account the Sale Shares are managed and who are the beneficial owners;
5.4.3 the Sale Shares are beneficially owned by the Sellers’ asset management clients in managed accounts over which the Sellers have investment discretion. To the best of the Sellers’ knowledge, there is no other person who has any legal or beneficial interest in the Sale Shares;
5.4.4 each of the Sellers is validly appointed as discretionary investment manager by the beneficial owners in respect of paragraphs [1.1,] 1.2, 1.3, 1.4, 1.9 and 1.13 of Schedule 3 shall not be subject to the Sale Sharesprovisions of Clause 6.17;
5.4.5 6.2.2 the Sale Shares are beneficially owned by the Sellers’ asset management clients; to the best Warranties shall not be or be capable of the Sellers’ knowledge, the beneficial owners of the Sale Shares have the full legal right to sell the Sale Shares and which are free from any Encumbrances;
5.4.6 upon completion of the Scheme, the Sellers’ asset management clients will be the sole beneficial owners of the New Unicom Shares and the New Unicom ADSs;
5.4.7 each of the Sellers has not created being qualified or permitted the creation of any Encumbrance nor entered into any agreement, arrangement or obligation to create or give an Encumbrance, discharged in relation to any of Seller by the Sale SharesDisclosure Schedule, the New Unicom Shares and/or the New Unicom ADSs, and to the best of the Sellers’ knowledge, no person has claimed to be entitled to an Encumbrance in relation to any of the Sale Shares, the New Unicom Shares and/or the New Unicom ADSs;
5.4.8 to the extent it held proxy voting authority, each of the Sellers has tendered votes in respect of the Shares underlying the Sale Netcom ADSs in favour of the resolution approving the scheme of arrangement under section 166 of the Companies Ordinance (Cap 32 of the Laws of Hong Kong) between the Company and the shareholders of the Company at the extraordinary general meeting of the Company to be held on 17 September 2008, and any adjournment thereof;
5.4.9 the execution and delivery of, and the performance by each of the Sellers of its obligations under, this Agreement and any other documents to be executed by it pursuant to or in connection with this Agreement will not:
(a) result in a breach of any provision of the constitutional Clause 6 or organisational documents of each in any other way insofar as any Claim arises as a consequence of the Sellers;fraud or wilful concealment or grossly negligent or wilful misconduct of that Seller.
(b) result in a breach of or give any third party a right to terminate or modify, or result in the creation of any Encumbrance under, any agreement, licence or other instrument or result in a breach of any order, judgment or decree of any court, governmental agency or regulatory body to which each of the Sellers or its nominee is a party or by which any of the Sellers or its nominee or any of their respective assets is bound; or
(c) result in any breach of any contractual covenants or investment management agreement to which each of the Sellers is subject;
5.4.10 each of the Sellers is not a “connected fund manager” (as defined in the Takeovers Code) or a “connected principal trader” (as defined in the Takeovers Code) of the offeror (i.e. Unicom) or the offeree company (i.e. the Company) nor a party acting in concert with the offeror and that consent from the Executive Director of the Corporate Finance Division of the Securities & Futures Commission is not required for the sale of the Sale Shares;
5.4.11 each of the Sellers is not required to obtain any other person’s consent in relation 6.3 Subject to the sale of the Sale Shares, the New Unicom Shares and the New Unicom ADSs;
5.4.12 each of the Sellers is not a connected person (as such term is defined in the Rules Governing the Listing of Securities on The Hong Kong Stock Exchange Limited) of the Company or Unicom;
5.4.13 no petition has been presented or order made and no meeting convened or resolution passed for the winding up or administration of any of the Sellers or for a provisional liquidator to be appointed in respect of any of the Sellers;
5.4.14 no distress, execution or other process has been levied on any of the assets of any of the Sellers, and no judgment creditor nor any liquidator, provisional liquidator, receiver or an administrative receiver of any of the Sellers has been appointed and there is no reason to believe that such a person might be appointed;
5.4.15 no voluntary arrangement has been proposed in respect of any of the Sellers and their creditors; and
5.4.16 each of the Sellers is not insolvent, or unable to pay its debts, and has not stopped paying its debts as they fall due, and no event analogous to any of the foregoing has occurred in or outside Hong Kong.
5.5 The Buyer represents and warrants to the Sellers that each Buyer Warranty is true, accurate and not misleading at the date of this Agreement. Immediately before Closing, the Buyer is deemed to warrant to the Sellers that each Buyer Warranty is true, accurate and not misleading by reference to the facts and circumstances on each day before Closing, and for this purpose only, any references in the Buyer Warranties to the date of this Agreement shall be construed as references to the relevant date. Unless otherwise set out in this Agreement, no other warranty is given by the Buyer.
5.6 The Buyer acknowledges that each of the Sellers is entering into this Agreement in reliance on each Buyer Warranty which has also been given as a representation and with the intention of inducing the Sellers to enter into this Agreement. The Buyer shall not invoke the Sellers’ constructive or imputed knowledge of a fact or circumstance which might make a Buyer Warranty untrue, inaccurate or misleading as a defence to a claim for breach provisions of Clause 5.5.
5.7 The Buyer represents and warrants to 6.4, without restricting the Sellers that:
5.7.1 the Buyer is a corporation duly organized and validly existing under the laws of its country of origin;
5.7.2 the Buyer has the legal right, full power and authority, and has taken all action necessary, to execute, deliver and to exercise its rights, and perform its obligations, under this Agreement and any other documents to be executed by the Buyer pursuant to or in connection with this Agreement, which when executed will constitute valid and binding obligations on the Buyer;
5.7.3 the execution and delivery of, and the performance by the Buyer of its obligations under, this Agreement and any other documents to be executed by it pursuant to or in connection with this Agreement will not:
(a) result in a breach of any provision of the constitutional or organisational documents of the Buyer; or
(b) result in a breach of or give any third party a right to terminate or modify, or result in the creation of any Encumbrance under, any agreement, licence or other instrument or result in a breach of any order, judgment or decree of any court, governmental agency or regulatory body to which the Buyer or its nominee is a party or by which any rights of the Buyer or its nominee or ability to claim damages on any basis, the amount of their respective assets is bound;
5.7.4 any Claim may be determined as and be deemed to be and the Sellers shall, subject to Clause 6.17, at all times indemnify and keep fully and effectively indemnified the Buyer is not required (for itself and at its option on behalf of the Company and its officers, employees, directors, shareholders, advisors and agents (other than the Sellers)) from and in respect of:-
6.3.1 the amount of all actual loss, damage or liability (and all actual, reasonable and verifiable costs, charges, interest, fines, penalties and expenses relating to obtain the same (including without limitation all expenses of investigations and legal fees and expenses on a solicitor and own client basis) and/or the amount of any other person’s consent depletion or diminution in the value of any assets of the Company in each case suffered or incurred by the Buyer or the Company as a result of, in connection with or in relation to the acquisition subject matter of such Claim provided that the Sale Shares;
5.7.5 no petition has been presented or order made and no meeting convened or resolution passed parties specifically agree that neither shall be liable for the winding up or administration of the Buyer or for a provisional liquidator to be appointed in respect of the Buyer;
5.7.6 no distress, execution or other process has been levied on any of the assets of the Buyer, and no judgment creditor nor any liquidator, provisional liquidator, receiver or an administrative receiver of the Buyer has been appointed and there is no reason to believe that such a person might be appointed;
5.7.7 no voluntary arrangement has been proposed in respect of the Buyer and its creditors; and
5.7.8 the Buyer is losses which were not insolvent, or unable to pay its debts, and has not stopped paying its debts reasonably foreseeable as they fall due, and no event analogous to any of the foregoing has occurred in or outside Hong Kong.
5.8 Each of the Sellers undertakes to the Buyer that it shall not dispose of or enter into any agreement or arrangement to dispose of or permit the disposal of any of the Sale Shares, the disposal of which is subject to its discretion from at the date of this Agreement and until hereof; or
6.3.2 the Long Stop Date amount by which any assets or the date when this Agreement is terminated in accordance with Clause 3.3, whichever is earlier.
5.9 Each of the Sellers further undertakes to the Buyer that it shall exercise or procure to be exercised all the voting rights attaching to the Sale Listed Shares in favour of the resolution approving the Scheme and the Share Proposal at the shareholders’ meeting liabilities of the Company to be held on 17 September 2008, are respectively less or more than they would have been had the relevant statement in Part A of Schedule 3 been true and not misleading; or
6.3.3 the amount of any adjournment thereofdecrease in the value of the Trojan Shares and of other loss or damage incurred by the Buyer as a result of the subject matter of such Claim.
Appears in 1 contract
Sources: Agreement for the Sale and Purchase of Share Capital (Brilliant Digital Entertainment Inc)
REPRESENTATIONS, WARRANTIES AND UNDERTAKINGS. 5.1 Each of the Sellers parties hereto hereby severally represents and warrants to the Buyer other parties that each Seller Warranty is true, accurate it has full power and not misleading at the date of authority to enter into and perform this Agreement. Immediately before Closing; this Agreement when executed and delivered by them shall constitute valid and legally binding obligations of such party enforceable in accordance with their respective terms, each except (i) as limited by applicable bankruptcy, insolvency, reorganization, moratorium, and other laws of the Sellers is deemed to warrant general application affecting enforcement of creditors’ rights generally, and (ii) as limited by laws relating to the Buyer that each Seller Warranty is trueavailability of specific performance, accurate and not misleading by reference to the facts and circumstances on each day before Closinginjunctive relief, and for this purpose only any references in the Seller Warranties to the date of this Agreement shall be construed as references to the relevant date. Unless otherwise set out in this Agreement, no or other warranty is given by the Sellersequitable remedies.
5.2 Each of the Sellers Parties hereto hereby undertakes to perform and procure the performance of this Agreement.
5.3 The Subscribers hereby undertakes and acknowledges to the Company that following the Buyer is entering into date of this Agreement (unless otherwise specified) they shall use its reasonable endeavours to assist the Company to, as soon as practicable, effect all approval and registration procedures related to the transaction and matters contemplated under this Agreement, obtain all the consent required for this Agreement and carry out all reasonable measures and actions necessary for the transaction to be successfully completed and valid according to the Transaction Documents and applicable laws in the PRC.
5.4 The Subscribers hereby represent and warrant to the Warrantors that its investment decisions were made based on its own due diligence investigation and its own business judgement, and it shall be fully responsible for all its actions thereof, subject to reliance on each Seller Warranty which has also been given the representations, warranties, covenants and agreements of the Warrantors contained in this Agreement.
5.5 Except as a representation set forth in the Schedule of Exceptions, the Warrantors hereby jointly and severally represent and warrant to and undertakes with the intention Subscribers that each of inducing the Buyer matters set out in Schedule 4 is as at the date hereof and will be for all times up to enter into this Agreement. The Sellers shall not invoke and including the Buyer’s constructive or imputed knowledge Completion Date, true, correct and complete in all material respects.
5.6 Each of a fact or circumstance which might make a Seller Warranty untruethe Warranties refers only to matters and facts subsisting as at the date hereof up to and including the Completion Date, inaccurate or misleading as a defence and the right to a claim for breach of Clause 5.1any Warranties will survive for a period of two (2) years after the Completion.
5.3 5.7 Each Seller of the Warranties is without prejudice to any other Warranty is to be construed independently and (and, except where expressly stated otherwise, no provision contained in this Agreement provides otherwise) is not limited by a provision shall govern or limit the extent or application of this Agreement or another any other Warranty.
5.4 5.8 Each of the Sellers represents and warrants Warrantors undertakes to notify the Subscribers, in writing as soon as practicable of any matter or event which becomes known to it prior to the Buyer that:Completion which may render any Warranty to be or to have been untrue or inaccurate.
5.4.1 each 5.9 The rights and remedies of the Sellers is an entity duly organized and validly existing under the laws Subscribers, in respect of its country a material breach of origin;
5.4.2 each any Warranty shall not be affected by any due diligence review or investigation made by or on behalf of the Sellers has Subscribers into the legal rightaffairs of any Group Company.
5.10 Notwithstanding any rule of law or equity to the contrary, full power and authorityany release, and has taken all action necessary, to execute, deliver and to exercise its rights, and perform its obligations, under this Agreement and waiver or compromise or any other documents arrangement of any kind whatsoever which the Subscribers may agree to be executed by each or effect in relation to any of the Sellers pursuant to or Warrantors in connection with this Agreement, which when executed will constitute valid and binding obligations on each Seller in particular the Warranties, shall not affect the rights and its asset management clients for whose account the Sale Shares are managed and who are the beneficial owners;
5.4.3 the Sale Shares are beneficially owned by the Sellers’ asset management clients in managed accounts over which the Sellers have investment discretion. To the best remedies of the Sellers’ knowledgeSubscribers, there is no as regards to any other person who has any legal or beneficial interest in the Sale Shares;parties.
5.4.4 each 5.11 Each of the Sellers is validly appointed as discretionary investment manager by the beneficial owners in respect of the Sale Shares;
5.4.5 the Sale Shares are beneficially owned by the Sellers’ asset management clients; to the best of the Sellers’ knowledge, the beneficial owners of the Sale Shares have the full legal right to sell the Sale Shares and which are free from any Encumbrances;
5.4.6 upon completion of the Scheme, the Sellers’ asset management clients will be the sole beneficial owners of the New Unicom Shares and the New Unicom ADSs;
5.4.7 each of the Sellers has not created or permitted the creation of any Encumbrance nor entered into any agreement, arrangement or obligation to create or give an EncumbranceWarrantors undertakes, in relation to any Warranty which refers to his knowledge or information, that he has made best enquiry into the subject matter of the Sale Shares, the New Unicom Shares and/or the New Unicom ADSs, and to the best of the Sellers’ knowledge, no person has claimed to be entitled to an Encumbrance in relation to any of the Sale Shares, the New Unicom Shares and/or the New Unicom ADSs;
5.4.8 to the extent it held proxy voting authority, each of the Sellers has tendered votes in respect of the Shares underlying the Sale Netcom ADSs in favour of the resolution approving the scheme of arrangement under section 166 of the Companies Ordinance (Cap 32 of the Laws of Hong Kong) between the Company and the shareholders of the Company at the extraordinary general meeting of the Company to be held on 17 September 2008, and any adjournment thereof;
5.4.9 the execution and delivery of, and the performance by each of the Sellers of its obligations under, this Agreement and any other documents to be executed by it pursuant to or in connection with this Agreement will not:
(a) result in a breach of any provision of the constitutional or organisational documents of each of the Sellers;
(b) result in a breach of or give any third party a right to terminate or modify, or result in the creation of any Encumbrance under, any agreement, licence or other instrument or result in a breach of any order, judgment or decree of any court, governmental agency or regulatory body to which each of the Sellers or its nominee is a party or by which any of the Sellers or its nominee or any of their respective assets is bound; or
(c) result in any breach of any contractual covenants or investment management agreement to which each of the Sellers is subject;
5.4.10 each of the Sellers is not a “connected fund manager” (as defined in the Takeovers Code) or a “connected principal trader” (as defined in the Takeovers Code) of the offeror (i.e. Unicom) or the offeree company (i.e. the Company) nor a party acting in concert with the offeror that Warranty and that consent from he does not have the Executive Director knowledge or information or belief that the subject matter of the Corporate Finance Division of the Securities & Futures Commission is that Warranty may not required for the sale of the Sale Shares;
5.4.11 each of the Sellers is not required to obtain any other person’s consent in relation to the sale of the Sale Shares, the New Unicom Shares and the New Unicom ADSs;
5.4.12 each of the Sellers is not a connected person (as such term is defined in the Rules Governing the Listing of Securities on The Hong Kong Stock Exchange Limited) of the Company or Unicom;
5.4.13 no petition has been presented or order made and no meeting convened or resolution passed for the winding up or administration of any of the Sellers or for a provisional liquidator to be appointed in respect of any of the Sellers;
5.4.14 no distress, execution or other process has been levied on any of the assets of any of the Sellers, and no judgment creditor nor any liquidator, provisional liquidator, receiver or an administrative receiver of any of the Sellers has been appointed and there is no reason to believe that such a person might be appointed;
5.4.15 no voluntary arrangement has been proposed in respect of any of the Sellers and their creditors; and
5.4.16 each of the Sellers is not insolvent, or unable to pay its debts, and has not stopped paying its debts as they fall due, and no event analogous to any of the foregoing has occurred in or outside Hong Kong.
5.5 The Buyer represents and warrants to the Sellers that each Buyer Warranty is true, accurate and not misleading at the date of this Agreement. Immediately before Closing, the Buyer is deemed to warrant to the Sellers that each Buyer Warranty is true, accurate and not misleading by reference to the facts and circumstances on each day before Closing, and for this purpose only, any references in the Buyer Warranties to the date of this Agreement shall be construed as references to the relevant date. Unless otherwise set out in this Agreement, no other warranty is given by the Buyercomplete or accurate.
5.6 The Buyer acknowledges that each of the Sellers is entering into this Agreement in reliance on each Buyer Warranty which has also been given as a representation and with the intention of inducing the Sellers to enter into this Agreement. The Buyer shall not invoke the Sellers’ constructive or imputed knowledge of a fact or circumstance which might make a Buyer Warranty untrue, inaccurate or misleading as a defence to a claim for breach of Clause 5.5.
5.7 The Buyer represents and warrants to the Sellers that:
5.7.1 the Buyer is a corporation duly organized and validly existing under the laws of its country of origin;
5.7.2 the Buyer has the legal right, full power and authority, and has taken all action necessary, to execute, deliver and to exercise its rights, and perform its obligations, under this Agreement and any other documents to be executed by the Buyer pursuant to or in connection with this Agreement, which when executed will constitute valid and binding obligations on the Buyer;
5.7.3 the execution and delivery of, and the performance by the Buyer of its obligations under, this Agreement and any other documents to be executed by it pursuant to or in connection with this Agreement will not:
(a) result in a breach of any provision of the constitutional or organisational documents of the Buyer; or
(b) result in a breach of or give any third party a right to terminate or modify, or result in the creation of any Encumbrance under, any agreement, licence or other instrument or result in a breach of any order, judgment or decree of any court, governmental agency or regulatory body to which the Buyer or its nominee is a party or by which any of the Buyer or its nominee or any of their respective assets is bound;
5.7.4 the Buyer is not required to obtain any other person’s consent in relation to the acquisition of the Sale Shares;
5.7.5 no petition has been presented or order made and no meeting convened or resolution passed for the winding up or administration of the Buyer or for a provisional liquidator to be appointed in respect of the Buyer;
5.7.6 no distress, execution or other process has been levied on any of the assets of the Buyer, and no judgment creditor nor any liquidator, provisional liquidator, receiver or an administrative receiver of the Buyer has been appointed and there is no reason to believe that such a person might be appointed;
5.7.7 no voluntary arrangement has been proposed in respect of the Buyer and its creditors; and
5.7.8 the Buyer is not insolvent, or unable to pay its debts, and has not stopped paying its debts as they fall due, and no event analogous to any of the foregoing has occurred in or outside Hong Kong.
5.8 Each of the Sellers undertakes to the Buyer that it shall not dispose of or enter into any agreement or arrangement to dispose of or permit the disposal of any of the Sale Shares, the disposal of which is subject to its discretion from the date of this Agreement and until the Long Stop Date or the date when this Agreement is terminated in accordance with Clause 3.3, whichever is earlier.
5.9 Each of the Sellers further undertakes to the Buyer that it shall exercise or procure to be exercised all the voting rights attaching to the Sale Listed Shares in favour of the resolution approving the Scheme and the Share Proposal at the shareholders’ meeting of the Company to be held on 17 September 2008, and any adjournment thereof.
Appears in 1 contract
Sources: Share Subscription Agreement
REPRESENTATIONS, WARRANTIES AND UNDERTAKINGS. 5.1 Each of the Sellers The Vendor hereby represents and warrants to and undertakes with the Buyer Purchaser that save as disclosed herein each Seller Warranty is true, accurate and not misleading of the Warranties set out in Schedule 2 as at the date hereof and shall be for all times up to and including the Completion Date are true and correct in all respects.
5.2 The Vendor shall on demand indemnify the Purchaser against any loss, damage, cost or expense suffered or incurred by the Purchaser or the Companies arising directly or indirectly from the breach of any of the Warranties or any other terms of this Agreement. Immediately before Closing, each of the Sellers is deemed to warrant to the Buyer that each Seller Warranty is true, accurate and not misleading by reference to the facts and circumstances on each day before Closing, and for this purpose only any references in the Seller Warranties to the date of this Agreement shall be construed as references to the relevant date. Unless otherwise set out in this Agreement, no other warranty is given by the Sellers.
5.2 Each of the Sellers (a) The Vendor acknowledges that the Buyer is entering Purchaser has entered into this Agreement in reliance on each Seller Warranty which has also been given as upon the Vendor’s Warranties.
(b) Each of the warranties shall constitute a representation separate and with independent warranty, and the intention Purchaser shall have a separate claim and right of inducing the Buyer to enter into this Agreement. The Sellers shall not invoke the Buyer’s constructive or imputed knowledge action in respect of a fact or circumstance which might make a Seller Warranty untrue, inaccurate or misleading as a defence to a claim for every breach of Clause 5.1any of the Warranties.
5.3 Each Seller Warranty is to be construed independently and (except where this Agreement provides otherwisec) is not limited by a provision of this Agreement or another WarrantyThe Vendor’s Warranties shall survive Completion.
5.4 Each The Vendor agrees that the Purchaser, prior to Completion, shall have the right to appoint certain employees to the Companies to participate in the business operation, exact arrangement to be agreed.
5.5 The Vendor agrees to deliver to the Purchaser necessary documents as followed, including, but not limited to, corporate seals of the Sellers represents and warrants to the Buyer that:
5.4.1 each Companies, original Certificates of the Sellers is an entity duly organized and validly existing under the laws of its country of origin;
5.4.2 each of the Sellers has the legal right, full power and authority, and has taken all action necessary, to execute, deliver and to exercise its rights, and perform its obligations, under this Agreement and any other documents to be executed by each of the Sellers pursuant to or in connection with this Agreement, which when executed will constitute valid and binding obligations on each Seller and its asset management clients for whose account the Sale Shares are managed and who are the beneficial owners;
5.4.3 the Sale Shares are beneficially owned by the Sellers’ asset management clients in managed accounts over which the Sellers have investment discretion. To the best of the Sellers’ knowledge, there is no other person who has any legal or beneficial interest in the Sale Shares;
5.4.4 each of the Sellers is validly appointed as discretionary investment manager by the beneficial owners in respect of the Sale Shares;
5.4.5 the Sale Shares are beneficially owned by the Sellers’ asset management clients; to the best of the Sellers’ knowledge, the beneficial owners of the Sale Shares have the full legal right to sell the Sale Shares and which are free from any Encumbrances;
5.4.6 upon completion of the Scheme, the Sellers’ asset management clients will be the sole beneficial owners of the New Unicom Shares and the New Unicom ADSs;
5.4.7 each of the Sellers has not created or permitted the creation of any Encumbrance nor entered into any agreement, arrangement or obligation to create or give an Encumbrance, in relation to any of the Sale Shares, the New Unicom Shares and/or the New Unicom ADSs, and to the best of the Sellers’ knowledge, no person has claimed to be entitled to an Encumbrance in relation to any of the Sale Shares, the New Unicom Shares and/or the New Unicom ADSs;
5.4.8 to the extent it held proxy voting authority, each of the Sellers has tendered votes in respect of the Shares underlying the Sale Netcom ADSs in favour of the resolution approving the scheme of arrangement under section 166 of the Companies Ordinance (Cap 32 of the Laws of Hong Kong) between the Company and the shareholders of the Company at the extraordinary general meeting of the Company to be held on 17 September 2008, and any adjournment thereof;
5.4.9 the execution and delivery of, and the performance by each of the Sellers of its obligations under, this Agreement and any other documents to be executed by it pursuant to or in connection with this Agreement will not:
(a) result in a breach of any provision of the constitutional or organisational documents Business of each of the Sellers;
(b) result in a breach Companies, original Memorandum and Articles of or give any third party a right to terminate or modify, or result in the creation Association of any Encumbrance under, any agreement, licence or other instrument or result in a breach of any order, judgment or decree of any court, governmental agency or regulatory body to which each of the Sellers or its nominee is a party or by which any Companies and Audit Reports of the Sellers or its nominee or any of their respective assets is bound; or
(c) result in any breach of any contractual covenants or investment management agreement to which each of the Sellers is subject;
5.4.10 each of the Sellers is not a “connected fund manager” (as defined in the Takeovers Code) or a “connected principal trader” (as defined in the Takeovers Code) of the offeror (i.e. Unicom) or the offeree company (i.e. the Company) nor a party acting in concert with the offeror and that consent from the Executive Director of the Corporate Finance Division of the Securities & Futures Commission is not required Companies for the sale financial year as of the Sale SharesDecember 31, 2021;
5.4.11 each of the Sellers is not required to obtain any other person’s consent in relation to the sale of the Sale Shares, the New Unicom Shares and the New Unicom ADSs;
5.4.12 each of the Sellers is not a connected person (as such term is defined in the Rules Governing the Listing of Securities on The Hong Kong Stock Exchange Limited) of the Company or Unicom;
5.4.13 no petition has been presented or order made and no meeting convened or resolution passed for the winding up or administration of any of the Sellers or for a provisional liquidator to be appointed in respect of any of the Sellers;
5.4.14 no distress, execution or other process has been levied on any of the assets of any of the Sellers, and no judgment creditor nor any liquidator, provisional liquidator, receiver or an administrative receiver of any of the Sellers has been appointed and there is no reason to believe that such a person might be appointed;
5.4.15 no voluntary arrangement has been proposed in respect of any of the Sellers and their creditors; and
5.4.16 each of the Sellers is not insolvent, or unable to pay its debts, and has not stopped paying its debts as they fall due, and no event analogous to any of the foregoing has occurred in or outside Hong Kong.
5.5 The Buyer represents and warrants to the Sellers that each Buyer Warranty is true, accurate and not misleading at the date of this Agreement. Immediately before Closing, the Buyer is deemed to warrant to the Sellers that each Buyer Warranty is true, accurate and not misleading by reference to the facts and circumstances on each day before Closing, and for this purpose only, any references in the Buyer Warranties to the date of this Agreement shall be construed as references to the relevant date. Unless otherwise set out in this Agreement, no other warranty is given by the Buyer.
5.6 The Buyer acknowledges Vendor and the Purchaser agree that each of in the Sellers is entering into this Agreement in reliance on each Buyer Warranty which has also been given as a representation and with event that the intention of inducing Companies needs to raise further working capital after Completion, the Sellers to enter into this Agreement. The Buyer shall not invoke the Sellers’ constructive or imputed knowledge of a fact or circumstance which might make a Buyer Warranty untruePurchaser, inaccurate or misleading as a defence subject to a claim for breach mutually agreed business plan, agrees to provide further working capital to the Companies in the form of Clause 5.5shareholder’s loan, which shall be interest-bearing at a rate to be determined.
5.7 The Buyer represents and warrants to the Sellers that:
5.7.1 the Buyer is a corporation duly organized and validly existing under the laws of its country of origin;
5.7.2 the Buyer has the legal right, full power and authority, and has taken all action necessary, to execute, deliver and to exercise its rights, and perform its obligations, under this Agreement and any other documents to be executed by the Buyer pursuant to or in connection with this Agreement, which when executed will constitute valid and binding obligations on the Buyer;
5.7.3 the execution and delivery of, Vendor and the performance by Purchaser agree that the Buyer of its obligations under, this Agreement and any other documents to be executed by it pursuant to or in connection with this Agreement will not:
(a) result in a breach of any provision of Purchaser shall have the constitutional or organisational documents of the Buyer; or
(b) result in a breach of or give any third party a right to terminate add more warranty clauses (by way of supplemental agreement or modify, or result in side letter) after completing the creation of any Encumbrance under, any agreement, licence or other instrument or result in a breach of any order, judgment or decree of any court, governmental agency or regulatory body to which the Buyer or its nominee is a party or by which any of the Buyer or its nominee or any of their respective assets is bound;
5.7.4 the Buyer is not required to obtain any other person’s consent in relation to the acquisition of the Sale Shares;
5.7.5 no petition has been presented or order made and no meeting convened or resolution passed for the winding up or administration of the Buyer or for a provisional liquidator to be appointed in respect of the Buyer;
5.7.6 no distress, execution or other process has been levied on any of the assets of the Buyer, and no judgment creditor nor any liquidator, provisional liquidator, receiver or an administrative receiver of the Buyer has been appointed and there is no reason to believe that such a person might be appointed;
5.7.7 no voluntary arrangement has been proposed in respect of the Buyer and its creditors; and
5.7.8 the Buyer is not insolvent, or unable to pay its debts, and has not stopped paying its debts as they fall due, and no event analogous to any of the foregoing has occurred in or outside Hong Kongdue diligence review before Completion.
5.8 Each of The Vendor shall provide the Sellers undertakes Kewei Intelligent Cloud Platform for the Purchaser’s use for free, however, the Purchaser shall bear its own cost related to the Buyer that it shall not dispose of or enter into any agreement or arrangement to dispose of or permit the disposal of any of the Sale Shares, the disposal of which is subject to its discretion from the date of this Agreement and until the Long Stop Date or the date when this Agreement is terminated in accordance with Clause 3.3, whichever is earlier.
5.9 Each of the Sellers further undertakes to the Buyer that it shall exercise or procure to be exercised all the voting rights attaching to the Sale Listed Shares in favour of the resolution approving the Scheme and the Share Proposal at the shareholders’ meeting of the Company to be held on 17 September 2008server, and any adjournment thereofboth the Vendor and Purchaser reserve the rights to further negotiate and adjust this provision from time to time.
Appears in 1 contract
Sources: Sale and Purchase Agreement (Guardforce AI Co., Ltd.)
REPRESENTATIONS, WARRANTIES AND UNDERTAKINGS. 5.1
6.1 Each Seller represents, warrants and undertakes to the Purchaser in the terms of the Warranties as set out in Part A of Schedule 3 and acknowledges that the Purchaser has entered into this Agreement in reliance upon the Seller Warranties. Each of the Sellers represents and warrants Seller Warranties is subject to the Buyer Disclosures and shall be qualified and limited accordingly.
6.2 The Purchaser represents, warrants and undertakes to the Sellers in the terms of the Warranties as set out in Part B of Schedule 3 and acknowledges that each Seller the Sellers have entered into this Agreement in reliance upon the Purchaser Warranties.
6.3 Each of the Warranties shall be construed as a separate Warranty is true, accurate and (save as expressly provided to the contrary) shall not misleading at be limited or restricted by reference to or inference from the date terms of any other Warranty or any other term of this Agreement. Immediately before Closing, each of the Sellers is .
6.4 The Warranties shall be deemed to warrant to the Buyer that each Seller Warranty is true, accurate and not misleading by be repeated immediately before Closing with reference to the facts and circumstances on each day before Closing, and for this purpose only then existing.
6.5 The Sellers undertake to notify the Purchaser in writing promptly if it becomes aware of any references in the Seller Warranties to circumstance arising after the date of this Agreement shall be construed as references to which would cause any of the relevant date. Unless otherwise Seller Warranties set out in this Agreement, no other warranty is given by Part A of Schedule 3 (if the Sellers.
5.2 Each of the Sellers acknowledges that the Buyer is entering into this Agreement in reliance on each Seller Warranty which has also been given as a representation and Warranties were repeated with the intention of inducing the Buyer to enter into this Agreement. The Sellers shall not invoke the Buyer’s constructive or imputed knowledge of a fact or circumstance which might make a Seller Warranty untrue, inaccurate or misleading as a defence to a claim for breach of Clause 5.1.
5.3 Each Seller Warranty is to be construed independently and (except where this Agreement provides otherwise) is not limited by a provision of this Agreement or another Warranty.
5.4 Each of the Sellers represents and warrants to the Buyer that:
5.4.1 each of the Sellers is an entity duly organized and validly existing under the laws of its country of origin;
5.4.2 each of the Sellers has the legal right, full power and authority, and has taken all action necessary, to execute, deliver and to exercise its rights, and perform its obligations, under this Agreement and any other documents to be executed by each of the Sellers pursuant to or in connection with this Agreement, which when executed will constitute valid and binding obligations on each Seller and its asset management clients for whose account the Sale Shares are managed and who are the beneficial owners;
5.4.3 the Sale Shares are beneficially owned by the Sellers’ asset management clients in managed accounts over which the Sellers have investment discretion. To the best of the Sellers’ knowledge, there is no other person who has any legal or beneficial interest in the Sale Shares;
5.4.4 each of the Sellers is validly appointed as discretionary investment manager by the beneficial owners in respect of the Sale Shares;
5.4.5 the Sale Shares are beneficially owned by the Sellers’ asset management clients; to the best of the Sellers’ knowledge, the beneficial owners of the Sale Shares have the full legal right to sell the Sale Shares and which are free from any Encumbrances;
5.4.6 upon completion of the Scheme, the Sellers’ asset management clients will be the sole beneficial owners of the New Unicom Shares and the New Unicom ADSs;
5.4.7 each of the Sellers has not created or permitted the creation of any Encumbrance nor entered into any agreement, arrangement or obligation to create or give an Encumbrance, in relation to any of the Sale Shares, the New Unicom Shares and/or the New Unicom ADSs, and to the best of the Sellers’ knowledge, no person has claimed to be entitled to an Encumbrance in relation to any of the Sale Shares, the New Unicom Shares and/or the New Unicom ADSs;
5.4.8 to the extent it held proxy voting authority, each of the Sellers has tendered votes in respect of the Shares underlying the Sale Netcom ADSs in favour of the resolution approving the scheme of arrangement under section 166 of the Companies Ordinance (Cap 32 of the Laws of Hong Kong) between the Company and the shareholders of the Company at the extraordinary general meeting of the Company to be held on 17 September 2008, and any adjournment thereof;
5.4.9 the execution and delivery of, and the performance by each of the Sellers of its obligations under, this Agreement and any other documents to be executed by it pursuant to or in connection with this Agreement will not:
(a) result in a breach of any provision of the constitutional or organisational documents of each of the Sellers;
(b) result in a breach of or give any third party a right to terminate or modify, or result in the creation of any Encumbrance under, any agreement, licence or other instrument or result in a breach of any order, judgment or decree of any court, governmental agency or regulatory body to which each of the Sellers or its nominee is a party or by which any of the Sellers or its nominee or any of their respective assets is bound; or
(c) result in any breach of any contractual covenants or investment management agreement to which each of the Sellers is subject;
5.4.10 each of the Sellers is not a “connected fund manager” (as defined in the Takeovers Code) or a “connected principal trader” (as defined in the Takeovers Code) of the offeror (i.e. Unicom) or the offeree company (i.e. the Company) nor a party acting in concert with the offeror and that consent from the Executive Director of the Corporate Finance Division of the Securities & Futures Commission is not required for the sale of the Sale Shares;
5.4.11 each of the Sellers is not required to obtain any other person’s consent in relation to the sale of the Sale Shares, the New Unicom Shares and the New Unicom ADSs;
5.4.12 each of the Sellers is not a connected person (as such term is defined in the Rules Governing the Listing of Securities on The Hong Kong Stock Exchange Limited) of the Company or Unicom;
5.4.13 no petition has been presented or order made and no meeting convened or resolution passed for the winding up or administration of any of the Sellers or for a provisional liquidator to be appointed in respect of any of the Sellers;
5.4.14 no distress, execution or other process has been levied on any of the assets of any of the Sellers, and no judgment creditor nor any liquidator, provisional liquidator, receiver or an administrative receiver of any of the Sellers has been appointed and there is no reason to believe that such a person might be appointed;
5.4.15 no voluntary arrangement has been proposed in respect of any of the Sellers and their creditors; and
5.4.16 each of the Sellers is not insolvent, or unable to pay its debts, and has not stopped paying its debts as they fall due, and no event analogous to any of the foregoing has occurred in or outside Hong Kong.
5.5 The Buyer represents and warrants to the Sellers that each Buyer Warranty is true, accurate and not misleading at the date of this Agreement. Immediately before Closing, the Buyer is deemed to warrant to the Sellers that each Buyer Warranty is true, accurate and not misleading by reference to the facts and circumstances then existing) to become untrue or inaccurate or misleading in any respect which is material to the financial condition, trading position or prospects of any of the Target Group Companies or the Target Group Operating Companies (as the case may be).
6.6 Each of the Sellers will not, and undertakes to procure that each member of the Seller Group will not, on each day or before the second anniversary of Closing, engage in, or be directly or indirectly interested in any entity that engages in, the business of management and for this purpose only, any references operation of terminals or ports. The restrictions set out in the Buyer Warranties first sentence of this Clause 6.6 shall not prohibit any member of the Seller Group to continue to hold its existing interest as at the date of this Agreement shall be construed as references to in any entity that engages in the relevant date. Unless otherwise set out business of management and operation of terminal or ports (except for the Target Group Companies and the Target Group Operating Companies) which is Disclosed against Warranty 3.11 in this Agreement, no other warranty is given by the BuyerDisclosure Letter.
5.6 The Buyer acknowledges that each 6.7 If the proposed sale of the Sellers is entering into this Agreement Target’s entire 20% equity interests in reliance Damietta (the Damietta Sale) completes after the Closing Date, the Purchaser shall, on each Buyer Warranty or before the date falling 10 Business Days after the date on which has also been given as a representation and with the intention of inducing Target receives the Sellers proceeds from such sale, procure the Target to enter into this Agreement. The Buyer shall not invoke the Sellers’ constructive or imputed knowledge of a fact or circumstance which might make a Buyer Warranty untrue, inaccurate or misleading as a defence to a claim for breach of Clause 5.5.
5.7 The Buyer represents and warrants to the Sellers that:
5.7.1 the Buyer is a corporation duly organized and validly existing under the laws of its country of origin;
5.7.2 the Buyer has the legal right, full power and authority, and has taken all action necessary, to execute, deliver and to exercise its rights, and perform its obligations, under this Agreement and any other documents to be executed by the Buyer pursuant to or in connection with this Agreement, which when executed will constitute valid and binding obligations on the Buyer;
5.7.3 the execution and delivery of, and the performance by the Buyer of its obligations under, this Agreement and any other documents to be executed by it pursuant to or in connection with this Agreement will notpay:
(a) result in a breach of any provision to CSHK an amount equal to 51% of the constitutional or organisational documents of the BuyerNet Damietta Sale Proceeds; orand
(b) result in a breach of or give any third party a right to terminate or modify, or result in the creation of any Encumbrance under, any agreement, licence or other instrument or result in a breach of any order, judgment or decree of any court, governmental agency or regulatory body CSCL an amount equal to which the Buyer or its nominee is a party or by which any 49% of the Buyer or its nominee or any Net Damietta Sale Proceeds. For the purposes of their respective assets is bound;
5.7.4 this Agreement, Net Damietta Sale Proceeds shall be an amount equal to the Buyer is not required to obtain any other person’s consent total sale proceeds received by the Target in relation to the acquisition of Damietta Sale less all Costs incurred or suffered by the Sale Shares;
5.7.5 no petition has been presented or order made and no meeting convened or resolution passed for the winding up or administration of the Buyer or for a provisional liquidator to be appointed in respect of the Buyer;
5.7.6 no distress, execution or other process has been levied on any of the assets of the Buyer, and no judgment creditor nor any liquidator, provisional liquidator, receiver or an administrative receiver of the Buyer has been appointed and there is no reason to believe that such a person might be appointed;
5.7.7 no voluntary arrangement has been proposed in respect of the Buyer Target and its creditors; and
5.7.8 Affiliates in relation to the Buyer is not insolvent, or unable to pay its debts, and has not stopped paying its debts as they fall due, and no event analogous to any of the foregoing has occurred in or outside Hong KongDamietta Sale.
5.8 6.8 Each of the Sellers undertakes shall procure that all Inter-Company Debts shall be settled (including settlement of all principal, interests, fees and penalties (if applicable)) between the any Target Group Company and each relevant member of the Seller Group prior to the Buyer that it shall not dispose of or enter into any agreement or arrangement to dispose of or permit the disposal of any of the Sale Shares, the disposal of which is subject to its discretion from the date of this Agreement and until the Long Stop Date or the date when this Agreement is terminated in accordance with Clause 3.3, whichever is earlierClosing Date.
5.9 Each of the Sellers further undertakes to the Buyer that it shall exercise or procure to be exercised all the voting rights attaching to the Sale Listed Shares in favour of the resolution approving the Scheme and the Share Proposal at the shareholders’ meeting of the Company to be held on 17 September 2008, and any adjournment thereof.
Appears in 1 contract
Sources: Sale and Purchase Agreement
REPRESENTATIONS, WARRANTIES AND UNDERTAKINGS. 5.1 Each of the Sellers 4.1 The Covenantor hereby represents and warrants to the Buyer Offeror that each Seller Warranty of the statements, representations and warranties set forth in Schedule 2 (the “Warranties”) is true, accurate and complete in all material respects and is not misleading in any material respect as at the date of this Agreement. Immediately before ClosingUndertaking, and will be true and accurate in all material respects and not misleading in any material respect as at each of the Sellers is deemed to warrant to Despatch Date, the Buyer that each Seller Warranty is trueUnconditional Date and the Settlement Date, accurate and not misleading by reference to the facts and circumstances on each day before Closing, and for this purpose only any references in the Seller Warranties to the date of this Agreement shall be construed as references to the relevant if they had been repeated at such date. Unless otherwise set out in this Agreement, no other warranty is given by the Sellers.
5.2 Each of the Sellers 4.2 The Covenantor acknowledges that the Buyer is and agrees that, in entering into this Agreement Undertaking, the Offeror has relied on the Warranties.
4.3 The Covenantor shall notify the Offeror in reliance on each Seller Warranty which has also been given as a representation and with writing, setting out in full details of the intention of inducing the Buyer to enter following, if after entering into this Agreement. The Sellers shall not invoke Undertaking but prior to the Buyer’s constructive or imputed knowledge Settlement Date: (a) it becomes aware that any of a fact or circumstance which might make a Seller Warranty the Warranties was untrue, inaccurate or misleading in any material respect as a defence to a claim for breach at the date of Clause 5.1this Undertaking; or (b) it becomes aware of any matter which arises or event that occurs which results or will result in any of the Warranties being untrue, inaccurate or misleading in any material respect as at the Despatch Date, the Unconditional Date or the Settlement Date.
5.3 Each Seller Warranty is to be construed independently and (except where this Agreement provides otherwise) is not limited by a provision of this Agreement or another Warranty.
5.4 4.4 Each of the Sellers represents Warranties is separate and warrants independent and, except where expressly provided to the Buyer that:
5.4.1 each of the Sellers is an entity duly organized and validly existing under the laws of its country of origin;
5.4.2 each of the Sellers has the legal rightcontrary in this Undertaking, full power and authority, and has taken all action necessary, shall not be limited by reference to execute, deliver and to exercise its rights, and perform its obligations, under this Agreement and any other Warranty or by anything in, or referred to in, this Undertaking.
4.5 The Covenantor irrevocably and unconditionally acknowledges, agrees and undertakes that it will do all such acts and things (including, amongst others, provision of such information in its possession) and execute all such documents to be executed by each of the Sellers pursuant give effect to or its obligations and undertakings contained in connection with this Agreement, which when executed will constitute valid and binding obligations on each Seller and its asset management clients for whose account the Sale Shares are managed and who are the beneficial owners;Undertaking.
5.4.3 the Sale Shares are beneficially owned by the Sellers’ asset management clients in managed accounts over which the Sellers have investment discretion. To the best of the Sellers’ knowledge, 4.6 The Covenantor acknowledges that there is no other person who has any legal or beneficial interest in the Sale Shares;
5.4.4 each of the Sellers is validly appointed as discretionary investment manager by the beneficial owners in respect assurance that completion of the Sale Shares;
5.4.5 the Sale Shares are beneficially owned by the Sellers’ asset management clients; to the best of the Sellers’ knowledge, the beneficial owners of the Sale Shares have the full legal right to sell the Sale Shares and which are free from any Encumbrances;
5.4.6 upon completion of the Scheme, the Sellers’ asset management clients will be the sole beneficial owners of the New Unicom Shares and the New Unicom ADSs;
5.4.7 each of the Sellers has not created or permitted the creation of any Encumbrance nor entered into any agreement, arrangement or obligation to create or give an Encumbrance, in relation to any of the Sale Shares, the New Unicom Shares and/or the New Unicom ADSs, and to the best of the Sellers’ knowledge, no person has claimed to be entitled to an Encumbrance in relation to any of the Sale Shares, the New Unicom Shares and/or the New Unicom ADSs;
5.4.8 to the extent it held proxy voting authority, each of the Sellers has tendered votes in respect of the Shares underlying the Sale Netcom ADSs in favour of the resolution approving the scheme of arrangement under section 166 of the Companies Ordinance (Cap 32 of the Laws of Hong Kong) between the Company and the shareholders of the Company at the extraordinary general meeting of the Company to be held on 17 September 2008, and any adjournment thereof;
5.4.9 the execution and delivery of, and the performance by each of the Sellers of its obligations under, this Purchase Agreement and any other documents to be executed by it pursuant to or in connection with this Agreement will not:
(a) result in a breach of any provision of the constitutional or organisational documents of each of the Sellers;
(b) result in a breach of or give any third party a right to terminate or modify, or result in the creation of any Encumbrance under, any agreement, licence or other instrument or result in a breach of any order, judgment or decree of any court, governmental agency or regulatory body to which each of the Sellers or its nominee is a party or by which any of the Sellers or its nominee or any of their respective assets is bound; or
(c) result in any breach of any contractual covenants or investment management agreement to which each of the Sellers is subject;
5.4.10 each of the Sellers is not a “connected fund manager” (as defined in the Takeovers CodeAnnouncement) will take place or a “connected principal trader” (the condition to the Offers as defined set out in the Takeovers Code) of the offeror Announcement will be satisfied or (i.e. Unicom) or the offeree company (i.e. the Company) nor a party acting in concert with the offeror and that consent from the Executive Director of the Corporate Finance Division of the Securities & Futures Commission is not required for the sale of the Sale Shares;
5.4.11 each of the Sellers is not required to obtain any other person’s consent in relation to the sale of extent applicable) waived or that the Sale Shares, Offers will proceed and be completed.
4.7 To the New Unicom Shares and the New Unicom ADSs;
5.4.12 each of the Sellers is not a connected person (as such term is defined in the Rules Governing the Listing of Securities on The Hong Kong Stock Exchange Limited) of the Company or Unicom;
5.4.13 no petition has been presented or order made and no meeting convened or resolution passed for the winding up or administration of extent any of the Sellers Relevant Shares are held by a custodian or for a provisional liquidator to be appointed in respect of any of trustee, the Sellers;
5.4.14 no distress, execution or other process has been levied on any of the assets of any of the Sellers, Covenantor confirms and no judgment creditor nor any liquidator, provisional liquidator, receiver or an administrative receiver of any of the Sellers has been appointed and there is no reason to believe undertakes that it will procure that such a person might be appointed;
5.4.15 no voluntary arrangement has been proposed in respect of any of the Sellers and their creditors; and
5.4.16 each of the Sellers is not insolvent, custodian or unable to pay its debts, and has not stopped paying its debts as they fall due, and no event analogous to any of the foregoing has occurred in or outside Hong Kong.
5.5 The Buyer represents and warrants to the Sellers that each Buyer Warranty is true, accurate and not misleading at the date of this Agreement. Immediately before Closing, the Buyer is deemed to warrant to the Sellers that each Buyer Warranty is true, accurate and not misleading by reference to the facts and circumstances on each day before Closing, and for this purpose only, any references in the Buyer Warranties to the date of this Agreement shall be construed as references to the relevant date. Unless otherwise set out in this Agreement, no other warranty is given by the Buyer.
5.6 The Buyer acknowledges that each of the Sellers is entering into this Agreement in reliance on each Buyer Warranty which has also been given as a representation and with the intention of inducing the Sellers to enter into this Agreement. The Buyer shall not invoke the Sellers’ constructive or imputed knowledge of a fact or circumstance which might make a Buyer Warranty untrue, inaccurate or misleading as a defence to a claim for breach of Clause 5.5.
5.7 The Buyer represents and warrants to the Sellers that:
5.7.1 the Buyer is a corporation duly organized and validly existing under the laws of its country of origin;
5.7.2 the Buyer has the legal right, full power and authority, and has taken all action necessary, to execute, deliver and to exercise its rights, and perform its obligations, under this Agreement and any other documents to be executed by the Buyer pursuant to or in connection with this Agreement, which when executed will constitute valid and binding obligations on the Buyer;
5.7.3 the execution and delivery of, and the performance by the Buyer of its obligations under, this Agreement and any other documents to be executed by it pursuant to or in connection with this Agreement will not:
(a) result in a breach of any provision of the constitutional or organisational documents of the Buyer; or
(b) result in a breach of or give any third party a right to terminate or modify, or result in the creation of any Encumbrance under, any agreement, licence or other instrument or result in a breach of any order, judgment or decree of any court, governmental agency or regulatory body to which the Buyer or its nominee is a party or by which any of the Buyer or its nominee or any of their respective assets is bound;
5.7.4 the Buyer is not required to obtain any other person’s consent in relation to the acquisition of the Sale Shares;
5.7.5 no petition has been presented or order made and no meeting convened or resolution passed for the winding up or administration of the Buyer or for a provisional liquidator to be appointed in respect of the Buyer;
5.7.6 no distress, execution or other process has been levied on any of the assets of the Buyer, and no judgment creditor nor any liquidator, provisional liquidator, receiver or an administrative receiver of the Buyer has been appointed and there is no reason to believe that such a person might be appointed;
5.7.7 no voluntary arrangement has been proposed in respect of the Buyer and its creditors; and
5.7.8 the Buyer is not insolvent, or unable to pay its debts, and has not stopped paying its debts as they fall due, and no event analogous to any of the foregoing has occurred in or outside Hong Kong.
5.8 Each of the Sellers undertakes to the Buyer that it shall not dispose of or enter into any agreement or arrangement to dispose of or permit the disposal of any of the Sale Shares, the disposal of which is subject to its discretion from the date of this Agreement and until the Long Stop Date or the date when this Agreement is terminated trustee acts in accordance with Clause 3.3, whichever is earlierthe terms of this Undertaking.
5.9 Each of the Sellers further undertakes to the Buyer that it shall exercise or procure to be exercised all the voting rights attaching to the Sale Listed Shares in favour of the resolution approving the Scheme and the Share Proposal at the shareholders’ meeting of the Company to be held on 17 September 2008, and any adjournment thereof.
Appears in 1 contract
Sources: Deed of Irrevocable Undertaking
REPRESENTATIONS, WARRANTIES AND UNDERTAKINGS. 5.1 Each 4.1 The Company and RBSG jointly and severally represent and warrant on the date hereof to each of the Sellers Joint Sponsors in the terms of the Warranties set out in paragraphs 1, 3, and 4 of Schedule 1 (the Joint Warranties) and RBSG represents and warrants on the date hereof to each of the Joint Sponsors in the terms of the Warranties set out in paragraph 2 of Schedule 1 (the Issuer Warranties). The Company and RBSG further jointly and severally represent and warrant to each of the Joint Sponsors that the Joint Warranties, and RBSG further represents and warrants to each of the Buyer Joint Sponsors that each Seller Warranty is truethe Issuer Warranties, shall be true and accurate in all respects and not misleading on the Final Subscription Date in any respect as if they had been made or given on the Final Subscription Date (on the basis that references in the Warranties to any fact, matter or thing existing, occurring or having (or not having) occurred at or before the date of this Agreement. Immediately before Closing, each of the Sellers is deemed to warrant to the Buyer that each Seller Warranty is true, accurate and not misleading by reference to the facts and circumstances on each day before Closing, and for this purpose only any references in the Seller Warranties to the date of this Agreement Deed shall be construed as references to it having (or not having) so done at or before the relevant date. Unless otherwise set out in this Agreement, no other warranty is given by the SellersFinal Subscription Date).
5.2 Each 4.2 Until the date upon which the Subscriber has transferred the Subscriber “B” Preference Shares and Further Ordinary Shares to RBSG pursuant to clause 3, the parties undertake to each other to procure (in so far as they are able) that no amendments will be made to the Articles of the Sellers acknowledges that the Buyer is entering into this Agreement in reliance on each Seller Warranty which has also been given as a representation and with the intention of inducing the Buyer to enter into this Agreement. The Sellers shall not invoke the Buyer’s constructive or imputed knowledge of a fact or circumstance which might make a Seller Warranty untrue, inaccurate or misleading as a defence to a claim for breach of Clause 5.1Association.
5.3 Each Seller Warranty is 4.3 Until the date upon which the Subscriber no longer holds any interest in the Company’s share capital, the Company undertakes to be construed independently and (except where this Agreement provides otherwise) is not limited by a provision of this Agreement or another Warranty.
5.4 Each of the Sellers represents and warrants to the Buyer that:
5.4.1 each of the Sellers is an entity duly organized Joint Sponsors that it will not, and validly existing under the laws of its country of origin;
5.4.2 RBSG undertakes to each of the Sellers has Joint Sponsors that it will procure (insofar as it is able) that the legal rightCompany will not, full power and authority, and has taken all action necessary, to execute, deliver and to exercise its rights, and perform its obligations, undertake any activities other than those contemplated under this Agreement and any other documents to be executed by each of the Sellers pursuant to or in connection with this Agreement, which when executed will constitute valid and binding obligations on each Seller and its asset management clients for whose account the Sale Shares are managed and who are the beneficial owners;
5.4.3 the Sale Shares are beneficially owned by the Sellers’ asset management clients in managed accounts over which the Sellers have investment discretion. To the best of the Sellers’ knowledge, there is no other person who has any legal or beneficial interest in the Sale Shares;
5.4.4 each of the Sellers is validly appointed as discretionary investment manager by the beneficial owners in respect of the Sale Shares;
5.4.5 the Sale Shares are beneficially owned by the Sellers’ asset management clients; to the best of the Sellers’ knowledgeDeed, the beneficial owners of the Sale Shares have the full legal right to sell the Sale Shares First Subscription and which are free from any Encumbrances;
5.4.6 upon completion of the Scheme, the Sellers’ asset management clients will be the sole beneficial owners of the New Unicom Shares and the New Unicom ADSs;
5.4.7 each of the Sellers has not created or permitted the creation of any Encumbrance nor entered into any agreement, arrangement or obligation to create or give an Encumbrance, in relation to any of the Sale Shares, the New Unicom Shares and/or the New Unicom ADSs, and to the best of the Sellers’ knowledge, no person has claimed to be entitled to an Encumbrance in relation to any of the Sale Shares, the New Unicom Shares and/or the New Unicom ADSs;
5.4.8 to the extent it held proxy voting authority, each of the Sellers has tendered votes in respect of the Shares underlying the Sale Netcom ADSs in favour of the resolution approving the scheme of arrangement under section 166 of the Companies Ordinance (Cap 32 of the Laws of Hong Kong) between the Company and the shareholders of the Company at the extraordinary general meeting of the Company to be held on 17 September 2008, and any adjournment thereof;
5.4.9 the execution and delivery of, and the performance by each of the Sellers of its obligations under, this Agreement and any other documents to be executed by it pursuant to or in connection with this Agreement will not:
(a) result in a breach of any provision of the constitutional or organisational documents of each of the Sellers;
(b) result in a breach of or give any third party a right to terminate or modify, or result in the creation of any Encumbrance under, any agreement, licence or other instrument or result in a breach of any order, judgment or decree of any court, governmental agency or regulatory body to which each of the Sellers or its nominee is a party or by which any of the Sellers or its nominee or any of their respective assets is bound; or
(c) result in any breach of any contractual covenants or investment management agreement to which each of the Sellers is subject;
5.4.10 each of the Sellers is not a “connected fund manager” (as defined in the Takeovers Code) or a “connected principal trader” (as defined in the Takeovers Code) of the offeror (i.e. Unicom) Transfer Deed or the offeree company (i.e. the Company) nor a party acting in concert with the offeror and that consent from the Executive Director of the Corporate Finance Division of the Securities & Futures Commission is not required for the sale of the Sale Shares;
5.4.11 each of the Sellers is not required to obtain any other person’s consent in relation to the sale of the Sale Shares, the New Unicom Shares and the New Unicom ADSs;
5.4.12 each of the Sellers is not a connected person (as such term is defined in the Rules Governing the Listing of Securities on The Hong Kong Stock Exchange Limited) of the Company or Unicom;
5.4.13 no petition has been presented or order made and no meeting convened or resolution passed for the winding up or administration of any of the Sellers or for a provisional liquidator to be appointed in respect of any of the Sellers;
5.4.14 no distress, execution or other process has been levied on any of the assets of any of the Sellers, and no judgment creditor nor any liquidator, provisional liquidator, receiver or an administrative receiver of any of the Sellers has been appointed and there is no reason to believe that such a person might be appointed;
5.4.15 no voluntary arrangement has been proposed in respect of any of the Sellers and their creditors; and
5.4.16 each of the Sellers is not insolvent, or unable to pay its debts, and has not stopped paying its debts as they fall due, and no event analogous to any of the foregoing has occurred in or outside Hong KongOption Agreement.
5.5 The Buyer represents and warrants to the Sellers that each Buyer Warranty is true, accurate and not misleading at the date of this Agreement. Immediately before Closing, the Buyer is deemed to warrant to the Sellers that each Buyer Warranty is true, accurate and not misleading by reference to the facts and circumstances on each day before Closing, and for this purpose only, any references in the Buyer Warranties to the date of this Agreement shall be construed as references to the relevant date. Unless otherwise set out in this Agreement, no other warranty is given by the Buyer.
5.6 The Buyer acknowledges that each of the Sellers is entering into this Agreement in reliance on each Buyer Warranty which has also been given as a representation and with the intention of inducing the Sellers to enter into this Agreement. The Buyer shall not invoke the Sellers’ constructive or imputed knowledge of a fact or circumstance which might make a Buyer Warranty untrue, inaccurate or misleading as a defence to a claim for breach of Clause 5.5.
5.7 The Buyer represents and warrants to the Sellers that:
5.7.1 the Buyer is a corporation duly organized and validly existing under the laws of its country of origin;
5.7.2 the Buyer has the legal right, full power and authority, and has taken all action necessary, to execute, deliver and to exercise its rights, and perform its obligations, under this Agreement and any other documents to be executed by the Buyer pursuant to or in connection with this Agreement, which when executed will constitute valid and binding obligations on the Buyer;
5.7.3 the execution and delivery of, and the performance by the Buyer of its obligations under, this Agreement and any other documents to be executed by it pursuant to or in connection with this Agreement will not:
(a) result in a breach of any provision of the constitutional or organisational documents of the Buyer; or
(b) result in a breach of or give any third party a right to terminate or modify, or result in the creation of any Encumbrance under, any agreement, licence or other instrument or result in a breach of any order, judgment or decree of any court, governmental agency or regulatory body to which the Buyer or its nominee is a party or by which any of the Buyer or its nominee or any of their respective assets is bound;
5.7.4 the Buyer is not required to obtain any other person’s consent in relation to the acquisition of the Sale Shares;
5.7.5 no petition has been presented or order made and no meeting convened or resolution passed for the winding up or administration of the Buyer or for a provisional liquidator to be appointed in respect of the Buyer;
5.7.6 no distress, execution or other process has been levied on any of the assets of the Buyer, and no judgment creditor nor any liquidator, provisional liquidator, receiver or an administrative receiver of the Buyer has been appointed and there is no reason to believe that such a person might be appointed;
5.7.7 no voluntary arrangement has been proposed in respect of the Buyer and its creditors; and
5.7.8 the Buyer is not insolvent, or unable to pay its debts, and has not stopped paying its debts as they fall due, and no event analogous to any of the foregoing has occurred in or outside Hong Kong.
5.8 Each of the Sellers undertakes to the Buyer that it shall not dispose of or enter into any agreement or arrangement to dispose of or permit the disposal of any of the Sale Shares, the disposal of which is subject to its discretion from the date of this Agreement and until the Long Stop Date or the date when this Agreement is terminated in accordance with Clause 3.3, whichever is earlier.
5.9 Each of the Sellers further undertakes to the Buyer that it shall exercise or procure to be exercised all the voting rights attaching to the Sale Listed Shares in favour of the resolution approving the Scheme and the Share Proposal at the shareholders’ meeting of the Company to be held on 17 September 2008, and any adjournment thereof.
Appears in 1 contract
Sources: Subscription and Transfer Deed (Royal Bank of Scotland Group PLC)
REPRESENTATIONS, WARRANTIES AND UNDERTAKINGS. 5.1 Each of the Sellers Pledgor represents and warrants for itself to the Buyer that each Seller Warranty is true, accurate and not misleading at Pledgee as set out hereafter:
1. The Claims existing on the date hereof have been duly entered into and constitute the valid, binding and enforceable obligation of this Agreement. Immediately before Closing, each of the Sellers parties thereto;
2. The Pledgor is deemed to warrant to the Buyer that each Seller Warranty is true, accurate and not misleading by reference to sole legal holder of the facts and circumstances Pledged Assets existing on each day before Closing, and for this purpose only any references in the Seller Warranties to the date of hereof pledged by it hereunder and has legal title to, such Pledged Assets, free from any Lien except as created by this Agreement shall be construed as references or any Lien permitted under any First Lien Document;
3. On the date hereof the Pledge over the Pledged Assets pursuant to this Pledge is not contrary to any court order or applicable to that Pledgor or of the relevant dateDebtor;
4. Unless otherwise set out This Agreement constitutes its legal, valid and binding obligations and operates as a valid pledge of its Pledged Assets in accordance with its terms and the Pledge created pursuant to this Agreement, no other warranty is given by the Sellers.
5.2 Each and once perfected pursuant to Clause 2, constitutes a legal, valid, binding and enforceable first priority and first ranking security interest over its Pledged Assets (if any) in favour of the Sellers acknowledges that Pledgee in respect of all Secured Obligations and in each case prior and superior to the Buyer is entering into this Agreement in reliance on each Seller Warranty which rights of other persons, except for any mandatory privileges preferred by applicable law;
5. The Pledgor has also been given as a representation and with the intention of inducing the Buyer necessary power to enable it to enter into this Agreement. The Sellers shall not invoke the Buyer’s constructive or imputed knowledge of a fact or circumstance which might make a Seller Warranty untrue, inaccurate or misleading as a defence to a claim for breach of Clause 5.1.
5.3 Each Seller Warranty is to be construed independently and (except where this Agreement provides otherwise) is not limited by a provision of this Agreement or another Warranty.
5.4 Each of the Sellers represents and warrants to the Buyer that:
5.4.1 each of the Sellers is an entity duly organized and validly existing under the laws of its country of origin;
5.4.2 each of the Sellers has the legal right, full power and authority, and has taken all action necessary, to execute, deliver and to exercise its rights, and perform its obligations, obligations under this Agreement and any other documents all necessary consents and authorizations for the execution of this Pledge Agreement have been obtained by the Pledgor and are in full force and effect except as could not reasonably be expected to be executed by each have a Material Adverse Effect;
6. Schedule 1 lists all Luxembourg law organized Affiliates of the Sellers pursuant to or Pledgors with registered office in connection with this Agreement, which when executed will constitute valid and binding obligations on each Seller and its asset management clients for whose account Luxembourg as of the Sale Shares are managed and who are the beneficial ownersdate hereof;
5.4.3 7. For the Sale Shares are beneficially owned by avoidance of doubt, the Sellers’ asset management clients in managed accounts over which the Sellers have investment discretion. To the best Pledgor hereby waives any rights arising for it (if any) under Article 2037 of the Sellers’ knowledge, there is no other person who has any legal or beneficial interest in the Sale Shares;
5.4.4 each of the Sellers is validly appointed as discretionary investment manager by the beneficial owners in respect of the Sale Shares;
5.4.5 the Sale Shares are beneficially owned by the Sellers’ asset management clients; to the best of the Sellers’ knowledge, the beneficial owners of the Sale Shares have the full legal right to sell the Sale Shares and which are free from any Encumbrances;
5.4.6 upon completion of the Scheme, the Sellers’ asset management clients will be the sole beneficial owners of the New Unicom Shares and the New Unicom ADSs;
5.4.7 each of the Sellers has not created or permitted the creation of any Encumbrance nor entered into any agreement, arrangement or obligation to create or give an Encumbrance, in relation to any of the Sale Shares, the New Unicom Shares and/or the New Unicom ADSs, and to the best of the Sellers’ knowledge, no person has claimed to be entitled to an Encumbrance in relation to any of the Sale Shares, the New Unicom Shares and/or the New Unicom ADSs;
5.4.8 to the extent it held proxy voting authority, each of the Sellers has tendered votes in respect of the Shares underlying the Sale Netcom ADSs in favour of the resolution approving the scheme of arrangement under section 166 of the Companies Ordinance (Cap 32 of the Laws of Hong Kong) between the Company and the shareholders of the Company at the extraordinary general meeting of the Company to be held on 17 September 2008, and any adjournment thereof;
5.4.9 the execution and delivery of, and the performance by each of the Sellers of its obligations under, this Agreement and any other documents to be executed by it pursuant to or in connection with this Agreement will not:
(a) result in a breach of any provision of the constitutional or organisational documents of each of the Sellers;
(b) result in a breach of or give any third party a right to terminate or modify, or result in the creation of any Encumbrance under, any agreement, licence or other instrument or result in a breach of any order, judgment or decree of any court, governmental agency or regulatory body to which each of the Sellers or its nominee is a party or by which any of the Sellers or its nominee or any of their respective assets is bound; or
(c) result in any breach of any contractual covenants or investment management agreement to which each of the Sellers is subject;
5.4.10 each of the Sellers is not a “connected fund manager” (as defined in the Takeovers Luxembourg Civil Code) or a “connected principal trader” (as defined in the Takeovers Code) of the offeror (i.e. Unicom) or the offeree company (i.e. the Company) nor a party acting in concert with the offeror and that consent from the Executive Director of the Corporate Finance Division of the Securities & Futures Commission is not required for the sale of the Sale Shares;
5.4.11 each of the Sellers is not required to obtain any other person’s consent in relation to the sale of the Sale Shares, the New Unicom Shares and the New Unicom ADSs;
5.4.12 each of the Sellers is not a connected person (as such term is defined in the Rules Governing the Listing of Securities on The Hong Kong Stock Exchange Limited) of the Company or Unicom;
5.4.13 no petition has been presented or order made and no meeting convened or resolution passed for the winding up or administration of any of the Sellers or for a provisional liquidator to be appointed in respect of any of the Sellers;
5.4.14 no distress, execution or other process has been levied on any of the assets of any of the Sellers, and no judgment creditor nor any liquidator, provisional liquidator, receiver or an administrative receiver of any of the Sellers has been appointed and there is no reason to believe that such a person might be appointed;
5.4.15 no voluntary arrangement has been proposed in respect of any of the Sellers and their creditors; and
5.4.16 8. it will, and will cause each of its Debtors to, assist the Sellers is not insolventPledgee in order to obtain all necessary material consents, or unable approvals and authorisations from any relevant authorities in order to pay permit the exercise by the Pledgee of its debts, rights and has not stopped paying its debts as they fall due, and no event analogous to any powers under this Pledge Agreement upon enforcement of the foregoing has occurred in or outside Hong KongPledge.
5.5 The Buyer represents and warrants to the Sellers that each Buyer Warranty is true, accurate and not misleading at the date of this Agreement. Immediately before Closing, the Buyer is deemed to warrant to the Sellers that each Buyer Warranty is true, accurate and not misleading by reference to the facts and circumstances on each day before Closing, and for this purpose only, any references in the Buyer Warranties to the date of this Agreement shall be construed as references to the relevant date. Unless otherwise set out in this Agreement, no other warranty is given by the Buyer.
5.6 The Buyer acknowledges that each of the Sellers is entering into this Agreement in reliance on each Buyer Warranty which has also been given as a representation and with the intention of inducing the Sellers to enter into this Agreement. The Buyer shall not invoke the Sellers’ constructive or imputed knowledge of a fact or circumstance which might make a Buyer Warranty untrue, inaccurate or misleading as a defence to a claim for breach of Clause 5.5.
5.7 The Buyer represents and warrants to the Sellers that:
5.7.1 the Buyer is a corporation duly organized and validly existing under the laws of its country of origin;
5.7.2 the Buyer has the legal right, full power and authority, and has taken all action necessary, to execute, deliver and to exercise its rights, and perform its obligations, under this Agreement and any other documents to be executed by the Buyer pursuant to or in connection with this Agreement, which when executed will constitute valid and binding obligations on the Buyer;
5.7.3 the execution and delivery of, and the performance by the Buyer of its obligations under, this Agreement and any other documents to be executed by it pursuant to or in connection with this Agreement will not:
(a) result in a breach of any provision of the constitutional or organisational documents of the Buyer; or
(b) result in a breach of or give any third party a right to terminate or modify, or result in the creation of any Encumbrance under, any agreement, licence or other instrument or result in a breach of any order, judgment or decree of any court, governmental agency or regulatory body to which the Buyer or its nominee is a party or by which any of the Buyer or its nominee or any of their respective assets is bound;
5.7.4 the Buyer is not required to obtain any other person’s consent in relation to the acquisition of the Sale Shares;
5.7.5 no petition has been presented or order made and no meeting convened or resolution passed for the winding up or administration of the Buyer or for a provisional liquidator to be appointed in respect of the Buyer;
5.7.6 no distress, execution or other process has been levied on any of the assets of the Buyer, and no judgment creditor nor any liquidator, provisional liquidator, receiver or an administrative receiver of the Buyer has been appointed and there is no reason to believe that such a person might be appointed;
5.7.7 no voluntary arrangement has been proposed in respect of the Buyer and its creditors; and
5.7.8 the Buyer is not insolvent, or unable to pay its debts, and has not stopped paying its debts as they fall due, and no event analogous to any of the foregoing has occurred in or outside Hong Kong.
5.8 Each of the Sellers undertakes to the Buyer that it shall not dispose of or enter into any agreement or arrangement to dispose of or permit the disposal of any of the Sale Shares, the disposal of which is subject to its discretion from the date of this Agreement and until the Long Stop Date or the date when this Agreement is terminated in accordance with Clause 3.3, whichever is earlier.
5.9 Each of the Sellers further undertakes to the Buyer that it shall exercise or procure to be exercised all the voting rights attaching to the Sale Listed Shares in favour of the resolution approving the Scheme and the Share Proposal at the shareholders’ meeting of the Company to be held on 17 September 2008, and any adjournment thereof.
Appears in 1 contract
REPRESENTATIONS, WARRANTIES AND UNDERTAKINGS. 5.1 Each of the Sellers 6.1 The Vendor represents and warrants to the Buyer Purchaser that each Seller Warranty is true, accurate and not misleading at the date of this Agreement. Immediately before Closing, each of the Sellers is deemed to warrant to the Buyer that each Seller Warranty is true, accurate and not misleading by reference to the facts and circumstances on each day before Closing, and for this purpose only any references in the Seller Warranties to the date of this Agreement shall be construed as references to the relevant date. Unless otherwise set out in this Agreement, no other warranty is given by the Sellers.
5.2 Each of the Sellers acknowledges that the Buyer is entering into this Agreement in reliance on each Seller Warranty which has also been given as a representation and with the intention of inducing the Buyer to enter into this Agreement. The Sellers shall not invoke the Buyer’s constructive or imputed knowledge of a fact or circumstance which might make a Seller Warranty untrue, inaccurate or misleading as a defence to a claim for breach of Clause 5.1.
5.3 Each Seller Warranty is to be construed independently and (except where this Agreement provides otherwise) is not limited by a provision of this Agreement or another Warranty.
5.4 Each of the Sellers represents and warrants to the Buyer that:
5.4.1 each of the Sellers is an entity duly organized and validly existing under the laws of its country of origin;
5.4.2 each of the Sellers it has the legal right, full power power, legal capacity and authority, and has taken obtained all action necessarynecessary approvals, to execute, deliver and to exercise its rights, and perform its obligations, under enter into this Agreement and any other documents to be executed by each of the Sellers pursuant to or in connection with this Agreement, which when executed will constitute valid and binding obligations on each Seller and its asset management clients for whose account the Sale Shares are managed and who are the beneficial owners;
5.4.3 the Sale Shares are beneficially owned by the Sellers’ asset management clients in managed accounts over which the Sellers have investment discretion. To the best of the Sellers’ knowledge, there is no other person who has any legal or beneficial interest in the Sale Shares;
5.4.4 each of the Sellers is validly appointed as discretionary investment manager by the beneficial owners in respect of the Sale Shares;
5.4.5 the Sale Shares are beneficially owned by the Sellers’ asset management clients; to the best of the Sellers’ knowledge, the beneficial owners of the Sale Shares have the full legal right to sell the Sale Shares and which are free from any Encumbrances;
5.4.6 upon completion of the Scheme, the Sellers’ asset management clients will be the sole beneficial owners of the New Unicom Shares and the New Unicom ADSs;
5.4.7 each of the Sellers has not created or permitted the creation of any Encumbrance nor entered into any agreement, arrangement or obligation to create or give an Encumbrance, in relation to any of the Sale Shares, the New Unicom Shares and/or the New Unicom ADSs, and to the best of the Sellers’ knowledge, no person has claimed to be entitled to an Encumbrance in relation to any of the Sale Shares, the New Unicom Shares and/or the New Unicom ADSs;
5.4.8 to the extent it held proxy voting authority, each of the Sellers has tendered votes in respect of the Shares underlying the Sale Netcom ADSs in favour of the resolution approving the scheme of arrangement under section 166 of the Companies Ordinance (Cap 32 of the Laws of Hong Kong) between the Company and the shareholders of the Company at the extraordinary general meeting of the Company to be held on 17 September 2008, and any adjournment thereof;
5.4.9 the execution and delivery of, and the performance by each of the Sellers of its obligations under, this Agreement and any other documents to be executed by it such pursuant to or in connection with this Agreement will not:
(a) result in a breach of any provision of the constitutional or organisational documents of each of the Sellers;
(b) result in a breach of or give any third party a right to terminate or modify, or result in the creation of any Encumbrance under, any agreement, licence or other instrument or result in a breach of any order, judgment or decree of any court, governmental agency or regulatory body to which each of the Sellers or its nominee is a party or by which any of the Sellers or its nominee or any of their respective assets is bound; or
(c) result in any breach of any contractual covenants or investment management agreement to which each of the Sellers is subject;
5.4.10 each of the Sellers is not a “connected fund manager” (as defined in the Takeovers Code) or a “connected principal trader” (as defined in the Takeovers Code) of the offeror (i.e. Unicom) or the offeree company (i.e. the Company) nor a party acting in concert with the offeror and that consent from the Executive Director of the Corporate Finance Division of the Securities & Futures Commission is not required for the sale of the Sale Shares;
5.4.11 each of the Sellers is not required to obtain any other person’s consent in relation to the sale of the Sale Shares, the New Unicom Shares and the New Unicom ADSs;
5.4.12 each of the Sellers is not a connected person (as such term is defined in the Rules Governing the Listing of Securities on The Hong Kong Stock Exchange Limited) of the Company or Unicom;
5.4.13 no petition has been presented or order made and no meeting convened or resolution passed for the winding up or administration of any of the Sellers or for a provisional liquidator to be appointed in respect of any of the Sellers;
5.4.14 no distress, execution or other process has been levied on any of the assets of any of the Sellers, and no judgment creditor nor any liquidator, provisional liquidator, receiver or an administrative receiver of any of the Sellers has been appointed and there is no reason to believe that such a person might be appointed;
5.4.15 no voluntary arrangement has been proposed in respect of any of the Sellers and their creditors; and
5.4.16 each of the Sellers is not insolvent, or unable to pay its debts, and has not stopped paying its debts as they fall due, and no event analogous to any of the foregoing has occurred in or outside Hong Kong.
5.5 The Buyer represents and warrants to the Sellers that each Buyer Warranty is true, accurate and not misleading at the date of this Agreement. Immediately before Closing, the Buyer is deemed to warrant to the Sellers that each Buyer Warranty is true, accurate and not misleading by reference to the facts and circumstances on each day before Closing, and for this purpose only, any references in the Buyer Warranties to the date of this Agreement shall be construed as references to the relevant date. Unless otherwise set out in this Agreement, no other warranty is given by the Buyer.
5.6 The Buyer acknowledges that each of the Sellers is entering into this Agreement in reliance on each Buyer Warranty which has also been given as a representation and with the intention of inducing the Sellers to enter into this Agreement. The Buyer shall not invoke the Sellers’ constructive or imputed knowledge of a fact or circumstance which might make a Buyer Warranty untrue, inaccurate or misleading as a defence to a claim for breach of Clause 5.5.
5.7 The Buyer represents and warrants to the Sellers that:
5.7.1 the Buyer is a corporation duly organized and validly existing under the laws of its country of origin;
5.7.2 the Buyer has the legal right, full power and authority, and has taken all action necessary, to execute, deliver and to exercise its rights, rights and perform its obligationsobligations hereunder, under and this Agreement and any other the said documents to be executed by the Buyer pursuant to or in connection with this Agreementwhen signed shall constitute legal, which when executed will constitute valid and binding obligations on the Buyer;Vendor and enforceable in accordance with their terms.
5.7.3 6.2 The Vendor represents and warrants to the execution Purchaser that upon Completion, the Sale Shares sold by the Vendor shall be fully paid up and delivery ofare legally and beneficially owned by it, and it has the performance power, authority, legal capacity and has obtained authorisation to sell and transfer the Sale Shares to be sold by it, and that the Buyer Sale Shares to be sold by it shall be free of its obligations underall Encumbrances with all rights attached thereto on the Completion Date.
6.3 If, after the signing of this Agreement and before Completion, any event shall occur or matter shall arise which results or may result in any of the Warranties of the Vendor being untrue, misleading or inaccurate in any respect, the Vendor shall immediately notify the Purchaser in writing thereof prior to Completion.
6.4 The total aggregate liability of the Vendor for any claim or claims of breaches under this Agreement (excluding other documents legal and other costs and expenses) shall not in any event exceed an amount equals to the Total Consideration.
6.5 No claim may be executed brought against the Vendor in respect of a breach of any of the Warranties after expiration of a period of 24 months from the Completion Date (“Warranty Expiry Date”) and the Vendor shall not be liable in respect of a breach of any of the Warranties unless it shall have received written notice from the Purchaser prior to the Warranty Expiry Date giving reasonable details of the relevant claim and any such claim shall (if not previously satisfied, settled or withdrawn) be deemed to have been waived or withdrawn at the expiry of a period of six months after the Warranty Expiry Date unless proceedings in respect thereof shall have already been commenced against the Vendor.
6.6 The Purchaser’s rights in respect of each of the Warranties shall survive Completion and continue in full force and effect notwithstanding Completion.
6.7 The Purchaser shall be entitled to claim both before and after Completion that any of the Warranties is or was untrue or misleading or has or had been breached even if the Purchaser discovered or could have discovered on or before Completion that the Warranty in question was untrue, misleading or had been breached and Completion shall not in any way constitute a waiver of any of the Purchaser’s rights.
6.8 The Purchaser hereby acknowledges that the Vendor has relied upon a valuation report dated 31 December 2022 (the “Valuation Report”) for determining the Base Purchase Price and which valuation report contains assumptions and other information supplied by the Vendor. The Vendor hereby warrants that all the assumptions in the valuation report and all other matters supplied by it pursuant for the purpose of compiling the valuation report will remain true and valid for a period of 24 months after Completion.
6.9 The Vendor hereby undertakes to indemnify and keep indemnified the Purchaser from and against all reasonable claims, liabilities, losses, damages, costs and expenses which the Purchaser may suffer or incur or which may be made against the Vendor either before or after the commencement of and arising out of, or in respect of, any action in connection with this Agreement will notwith:
(a) result in a the breach of any of the Warranties or any provision of this Agreement by the constitutional or organisational documents of the Buyer; orVendor;
(b) result in a breach of or give any third party a right to terminate or modify, or result in the creation settlement of any Encumbrance under, any agreement, licence or other instrument or result in a breach of any order, judgment or decree of any court, governmental agency or regulatory body to which the Buyer or its nominee is a party or by which claim that any of the Buyer Warranties is untrue or its nominee misleading or has been breached in any aspects;
(c) any legal proceedings taken by the Purchaser claiming that any of their respective assets the Warranties is bound;untrue or misleading or has been breached and in which judgment is given for the Purchaser; and
5.7.4 (d) the Buyer is not required to obtain enforcement of any other person’s consent such settlement or judgment.
6.10 No claim shall lie against the Vendor (under or in relation to the acquisition Warranties or any provision of this Agreement) to the Sale Shares;
5.7.5 no petition has been presented or order made and no meeting convened or resolution passed for the winding up or administration of the Buyer or for a provisional liquidator to be appointed in respect of the Buyer;
5.7.6 no distress, execution or other process has been levied on any of the assets of the Buyer, and no judgment creditor nor any liquidator, provisional liquidator, receiver or an administrative receiver of the Buyer has been appointed and there is no reason to believe extent that such a person might be appointed;claim is attributable to any voluntary act, omission, transaction, or arrangement carried out directly by the Purchaser or on its behalf or by persons deriving title from the Purchaser after the Completion.
5.7.7 no voluntary arrangement has been proposed 6.11 The Vendor represents and warrants that, in respect of the Buyer and its creditors; and
5.7.8 the Buyer entering into this Agreement it is not insolvent, in breach or unable to pay its debtsviolation of, and has not stopped paying its debts as they fall dueengaged in any acts, and no event analogous to any of the foregoing has occurred in omissions or outside Hong Kong.
5.8 Each of the Sellers undertakes to the Buyer that conduct which may cause it shall not dispose of or enter into any agreement or arrangement to dispose of or permit the disposal of any of the Sale Shares, the disposal of which is subject to its discretion from the date of this Agreement and until the Long Stop Date or the date when this Agreement is terminated in accordance with Clause 3.3, whichever is earlier.
5.9 Each of the Sellers further undertakes to the Buyer that it shall exercise or procure Purchaser to be exercised all the voting rights attaching to the Sale Listed Shares in favour of the resolution approving the Scheme and the Share Proposal at the shareholders’ meeting of the Company to be held on 17 September 2008breach or violation of, and any adjournment thereofApplicable Laws.
Appears in 1 contract
Sources: Sale and Purchase Agreement (China Natural Resources Inc)
REPRESENTATIONS, WARRANTIES AND UNDERTAKINGS. 5.1 Each of the Sellers 6.1 The Vendor represents and warrants to the Buyer Purchaser that each Seller Warranty is true, accurate and not misleading at the date of this Agreement. Immediately before Closing, each of the Sellers is deemed to warrant to the Buyer that each Seller Warranty is true, accurate and not misleading by reference to the facts and circumstances on each day before Closing, and for this purpose only any references in the Seller Warranties to the date of this Agreement shall be construed as references to the relevant date. Unless otherwise set out in this Agreement, no other warranty is given by the Sellers.
5.2 Each of the Sellers acknowledges that the Buyer is entering into this Agreement in reliance on each Seller Warranty which has also been given as a representation and with the intention of inducing the Buyer to enter into this Agreement. The Sellers shall not invoke the Buyer’s constructive or imputed knowledge of a fact or circumstance which might make a Seller Warranty untrue, inaccurate or misleading as a defence to a claim for breach of Clause 5.1.
5.3 Each Seller Warranty is to be construed independently and (except where this Agreement provides otherwise) is not limited by a provision of this Agreement or another Warranty.
5.4 Each of the Sellers represents and warrants to the Buyer that:
5.4.1 each of the Sellers is an entity duly organized and validly existing under the laws of its country of origin;
5.4.2 each of the Sellers it has the legal right, full power power, legal capacity and authority, and has taken obtained all action necessarynecessary approvals, to execute, deliver and to exercise its rights, and perform its obligations, under enter into this Agreement and any other documents to be executed by each of the Sellers pursuant to or in connection with this Agreement, which when executed will constitute valid and binding obligations on each Seller and its asset management clients for whose account the Sale Shares are managed and who are the beneficial owners;
5.4.3 the Sale Shares are beneficially owned by the Sellers’ asset management clients in managed accounts over which the Sellers have investment discretion. To the best of the Sellers’ knowledge, there is no other person who has any legal or beneficial interest in the Sale Shares;
5.4.4 each of the Sellers is validly appointed as discretionary investment manager by the beneficial owners in respect of the Sale Shares;
5.4.5 the Sale Shares are beneficially owned by the Sellers’ asset management clients; to the best of the Sellers’ knowledge, the beneficial owners of the Sale Shares have the full legal right to sell the Sale Shares and which are free from any Encumbrances;
5.4.6 upon completion of the Scheme, the Sellers’ asset management clients will be the sole beneficial owners of the New Unicom Shares and the New Unicom ADSs;
5.4.7 each of the Sellers has not created or permitted the creation of any Encumbrance nor entered into any agreement, arrangement or obligation to create or give an Encumbrance, in relation to any of the Sale Shares, the New Unicom Shares and/or the New Unicom ADSs, and to the best of the Sellers’ knowledge, no person has claimed to be entitled to an Encumbrance in relation to any of the Sale Shares, the New Unicom Shares and/or the New Unicom ADSs;
5.4.8 to the extent it held proxy voting authority, each of the Sellers has tendered votes in respect of the Shares underlying the Sale Netcom ADSs in favour of the resolution approving the scheme of arrangement under section 166 of the Companies Ordinance (Cap 32 of the Laws of Hong Kong) between the Company and the shareholders of the Company at the extraordinary general meeting of the Company to be held on 17 September 2008, and any adjournment thereof;
5.4.9 the execution and delivery of, and the performance by each of the Sellers of its obligations under, this Agreement and any other documents to be executed by it such pursuant to or in connection with this Agreement will not:
(a) result in a breach of any provision of the constitutional or organisational documents of each of the Sellers;
(b) result in a breach of or give any third party a right to terminate or modify, or result in the creation of any Encumbrance under, any agreement, licence or other instrument or result in a breach of any order, judgment or decree of any court, governmental agency or regulatory body to which each of the Sellers or its nominee is a party or by which any of the Sellers or its nominee or any of their respective assets is bound; or
(c) result in any breach of any contractual covenants or investment management agreement to which each of the Sellers is subject;
5.4.10 each of the Sellers is not a “connected fund manager” (as defined in the Takeovers Code) or a “connected principal trader” (as defined in the Takeovers Code) of the offeror (i.e. Unicom) or the offeree company (i.e. the Company) nor a party acting in concert with the offeror and that consent from the Executive Director of the Corporate Finance Division of the Securities & Futures Commission is not required for the sale of the Sale Shares;
5.4.11 each of the Sellers is not required to obtain any other person’s consent in relation to the sale of the Sale Shares, the New Unicom Shares and the New Unicom ADSs;
5.4.12 each of the Sellers is not a connected person (as such term is defined in the Rules Governing the Listing of Securities on The Hong Kong Stock Exchange Limited) of the Company or Unicom;
5.4.13 no petition has been presented or order made and no meeting convened or resolution passed for the winding up or administration of any of the Sellers or for a provisional liquidator to be appointed in respect of any of the Sellers;
5.4.14 no distress, execution or other process has been levied on any of the assets of any of the Sellers, and no judgment creditor nor any liquidator, provisional liquidator, receiver or an administrative receiver of any of the Sellers has been appointed and there is no reason to believe that such a person might be appointed;
5.4.15 no voluntary arrangement has been proposed in respect of any of the Sellers and their creditors; and
5.4.16 each of the Sellers is not insolvent, or unable to pay its debts, and has not stopped paying its debts as they fall due, and no event analogous to any of the foregoing has occurred in or outside Hong Kong.
5.5 The Buyer represents and warrants to the Sellers that each Buyer Warranty is true, accurate and not misleading at the date of this Agreement. Immediately before Closing, the Buyer is deemed to warrant to the Sellers that each Buyer Warranty is true, accurate and not misleading by reference to the facts and circumstances on each day before Closing, and for this purpose only, any references in the Buyer Warranties to the date of this Agreement shall be construed as references to the relevant date. Unless otherwise set out in this Agreement, no other warranty is given by the Buyer.
5.6 The Buyer acknowledges that each of the Sellers is entering into this Agreement in reliance on each Buyer Warranty which has also been given as a representation and with the intention of inducing the Sellers to enter into this Agreement. The Buyer shall not invoke the Sellers’ constructive or imputed knowledge of a fact or circumstance which might make a Buyer Warranty untrue, inaccurate or misleading as a defence to a claim for breach of Clause 5.5.
5.7 The Buyer represents and warrants to the Sellers that:
5.7.1 the Buyer is a corporation duly organized and validly existing under the laws of its country of origin;
5.7.2 the Buyer has the legal right, full power and authority, and has taken all action necessary, to execute, deliver and to exercise its rights, rights and perform its obligationsobligations hereunder, under and this Agreement and any other the said documents to be executed by the Buyer pursuant to or in connection with this Agreementwhen signed shall constitute legal, which when executed will constitute valid and binding obligations on the Buyer;Vendor and enforceable in accordance with their terms.
5.7.3 6.2 The Vendor represents and warrants to the execution Purchaser that upon Completion, the Sale Shares sold by the Vendor shall be fully paid up and delivery ofare legally and beneficially owned by it, and it has the performance power, authority, legal capacity and has obtained authorisation to sell and transfer the Sale Shares to be sold by it, and that the Buyer Sale Shares to be sold by it shall be free of its obligations underall Encumbrances with all rights attached thereto on the Completion Date.
6.3 If, after the signing of this Agreement and before Completion, any event shall occur or matter shall arise which results or may result in any of the Warranties of the Vendor being untrue, misleading or inaccurate in any respect, the Vendor shall immediately notify the Purchaser in writing thereof prior to Completion.
6.4 The total aggregate liability of the Vendor for any claim or claims of breaches under this Agreement (excluding other documents legal and other costs and expenses) shall not in any event exceed an amount equals to the Total Consideration.
6.5 No claim may be executed brought against the Vendor in respect of a breach of any of the Warranties after expiration of a period of 36 months from the Completion Date (“Warranty Expiry Date”) and the Vendor shall not be liable in respect of a breach of any of the Warranties unless it shall have received written notice from the Purchaser prior to the Warranty Expiry Date giving reasonable details of the relevant claim and any such claim shall (if not previously satisfied, settled or withdrawn) be deemed to have been waived or withdrawn at the expiry of a period of six months after the Warranty Expiry Date unless proceedings in respect thereof shall have already been commenced against the Vendor.
6.6 The Purchaser’s rights in respect of each of the Warranties shall survive Completion and continue in full force and effect notwithstanding Completion.
6.7 The Purchaser shall be entitled to claim both before and after Completion that any of the Warranties is or was untrue or misleading or has or had been breached even if the Purchaser discovered or could have discovered on or before Completion that the Warranty in question was untrue, misleading or had been breached and Completion shall not in any way constitute a waiver of any of the Purchaser’s rights.
6.8 The Vendor hereby acknowledges that the Purchaser has relied upon a valuation report dated 26 July 2021 for determining the Total Consideration and which valuation report contains assumptions and other information supplied by the Vendor. The Vendor hereby warrants that all the assumptions in the valuation report and all other matters supplied by it pursuant for the purpose of compiling the valuation report will remain true and valid for a period of 24 months after Completion.
6.9 The Vendor hereby undertakes to indemnify and keep indemnified the Purchaser from and against all reasonable claims, liabilities, losses, damages, costs and expenses which the Purchaser may suffer or incur or which may be made against the Vendor either before or after the commencement of and arising out of, or in respect of, any action in connection with this Agreement will notwith:
(a) result in a the breach of any of the Warranties or any provision of this Agreement by the constitutional or organisational documents of the Buyer; orVendor;
(b) result in a breach of or give any third party a right to terminate or modify, or result in the creation settlement of any Encumbrance under, any agreement, licence or other instrument or result in a breach of any order, judgment or decree of any court, governmental agency or regulatory body to which the Buyer or its nominee is a party or by which claim that any of the Buyer Warranties is untrue or its nominee misleading or has been breached in any aspects;
(c) any legal proceedings taken by the Purchaser claiming that any of their respective assets the Warranties is bound;untrue or misleading or has been breached and in which judgment is given for the Purchaser; and
5.7.4 (d) the Buyer is not required to obtain enforcement of any other person’s consent such settlement or judgment.
6.10 No claim shall lie against the Vendor (under or in relation to the acquisition Warranties or any provision of this Agreement) to the Sale Shares;
5.7.5 no petition has been presented or order made and no meeting convened or resolution passed for the winding up or administration of the Buyer or for a provisional liquidator to be appointed in respect of the Buyer;
5.7.6 no distress, execution or other process has been levied on any of the assets of the Buyer, and no judgment creditor nor any liquidator, provisional liquidator, receiver or an administrative receiver of the Buyer has been appointed and there is no reason to believe extent that such a person might be appointed;claim is attributable to any voluntary act, omission, transaction, or arrangement carried out directly by the Purchaser or on its behalf or by persons deriving title from the Purchaser after the Completion.
5.7.7 no voluntary arrangement has been proposed 6.11 The Vendor represents and warrants that, in respect of the Buyer and its creditors; and
5.7.8 the Buyer entering into this Agreement it is not insolvent, in breach or unable to pay its debtsviolation of, and has not stopped paying its debts as they fall dueengaged in any acts, and no event analogous to any of the foregoing has occurred in omissions or outside Hong Kong.
5.8 Each of the Sellers undertakes to the Buyer that conduct which may cause it shall not dispose of or enter into any agreement or arrangement to dispose of or permit the disposal of any of the Sale Shares, the disposal of which is subject to its discretion from the date of this Agreement and until the Long Stop Date or the date when this Agreement is terminated in accordance with Clause 3.3, whichever is earlier.
5.9 Each of the Sellers further undertakes to the Buyer that it shall exercise or procure Purchaser to be exercised all the voting rights attaching to the Sale Listed Shares in favour of the resolution approving the Scheme and the Share Proposal at the shareholders’ meeting of the Company to be held on 17 September 2008breach or violation of, and any adjournment thereofApplicable Laws.
Appears in 1 contract
Sources: Sale and Purchase Agreement (China Natural Resources Inc)
REPRESENTATIONS, WARRANTIES AND UNDERTAKINGS. 5.1 Each of the Sellers 6.1 The Vendor represents and warrants to the Buyer Purchaser that each Seller Warranty is true, accurate and not misleading at the date of this Agreement. Immediately before Closing, each of the Sellers is deemed to warrant to the Buyer that each Seller Warranty is true, accurate and not misleading by reference to the facts and circumstances on each day before Closing, and for this purpose only any references in the Seller Warranties to the date of this Agreement shall be construed as references to the relevant date. Unless otherwise set out in this Agreement, no other warranty is given by the Sellers.
5.2 Each of the Sellers acknowledges that the Buyer is entering into this Agreement in reliance on each Seller Warranty which has also been given as a representation and with the intention of inducing the Buyer to enter into this Agreement. The Sellers shall not invoke the Buyer’s constructive or imputed knowledge of a fact or circumstance which might make a Seller Warranty untrue, inaccurate or misleading as a defence to a claim for breach of Clause 5.1.
5.3 Each Seller Warranty is to be construed independently and (except where this Agreement provides otherwise) is not limited by a provision of this Agreement or another Warranty.
5.4 Each of the Sellers represents and warrants to the Buyer that:
5.4.1 each of the Sellers is an entity duly organized and validly existing under the laws of its country of origin;
5.4.2 each of the Sellers it has the legal right, full power power, legal capacity and authority, and has taken obtained all action necessarynecessary approvals, to execute, deliver and to exercise its rights, and perform its obligations, under enter into this Agreement and any other documents to be executed by each of the Sellers pursuant to or in connection with this Agreement, which when executed will constitute valid and binding obligations on each Seller and its asset management clients for whose account the Sale Shares are managed and who are the beneficial owners;
5.4.3 the Sale Shares are beneficially owned by the Sellers’ asset management clients in managed accounts over which the Sellers have investment discretion. To the best of the Sellers’ knowledge, there is no other person who has any legal or beneficial interest in the Sale Shares;
5.4.4 each of the Sellers is validly appointed as discretionary investment manager by the beneficial owners in respect of the Sale Shares;
5.4.5 the Sale Shares are beneficially owned by the Sellers’ asset management clients; to the best of the Sellers’ knowledge, the beneficial owners of the Sale Shares have the full legal right to sell the Sale Shares and which are free from any Encumbrances;
5.4.6 upon completion of the Scheme, the Sellers’ asset management clients will be the sole beneficial owners of the New Unicom Shares and the New Unicom ADSs;
5.4.7 each of the Sellers has not created or permitted the creation of any Encumbrance nor entered into any agreement, arrangement or obligation to create or give an Encumbrance, in relation to any of the Sale Shares, the New Unicom Shares and/or the New Unicom ADSs, and to the best of the Sellers’ knowledge, no person has claimed to be entitled to an Encumbrance in relation to any of the Sale Shares, the New Unicom Shares and/or the New Unicom ADSs;
5.4.8 to the extent it held proxy voting authority, each of the Sellers has tendered votes in respect of the Shares underlying the Sale Netcom ADSs in favour of the resolution approving the scheme of arrangement under section 166 of the Companies Ordinance (Cap 32 of the Laws of Hong Kong) between the Company and the shareholders of the Company at the extraordinary general meeting of the Company to be held on 17 September 2008, and any adjournment thereof;
5.4.9 the execution and delivery of, and the performance by each of the Sellers of its obligations under, this Agreement and any other documents to be executed by it such pursuant to or in connection with this Agreement will not:
(a) result in a breach of any provision of the constitutional or organisational documents of each of the Sellers;
(b) result in a breach of or give any third party a right to terminate or modify, or result in the creation of any Encumbrance under, any agreement, licence or other instrument or result in a breach of any order, judgment or decree of any court, governmental agency or regulatory body to which each of the Sellers or its nominee is a party or by which any of the Sellers or its nominee or any of their respective assets is bound; or
(c) result in any breach of any contractual covenants or investment management agreement to which each of the Sellers is subject;
5.4.10 each of the Sellers is not a “connected fund manager” (as defined in the Takeovers Code) or a “connected principal trader” (as defined in the Takeovers Code) of the offeror (i.e. Unicom) or the offeree company (i.e. the Company) nor a party acting in concert with the offeror and that consent from the Executive Director of the Corporate Finance Division of the Securities & Futures Commission is not required for the sale of the Sale Shares;
5.4.11 each of the Sellers is not required to obtain any other person’s consent in relation to the sale of the Sale Shares, the New Unicom Shares and the New Unicom ADSs;
5.4.12 each of the Sellers is not a connected person (as such term is defined in the Rules Governing the Listing of Securities on The Hong Kong Stock Exchange Limited) of the Company or Unicom;
5.4.13 no petition has been presented or order made and no meeting convened or resolution passed for the winding up or administration of any of the Sellers or for a provisional liquidator to be appointed in respect of any of the Sellers;
5.4.14 no distress, execution or other process has been levied on any of the assets of any of the Sellers, and no judgment creditor nor any liquidator, provisional liquidator, receiver or an administrative receiver of any of the Sellers has been appointed and there is no reason to believe that such a person might be appointed;
5.4.15 no voluntary arrangement has been proposed in respect of any of the Sellers and their creditors; and
5.4.16 each of the Sellers is not insolvent, or unable to pay its debts, and has not stopped paying its debts as they fall due, and no event analogous to any of the foregoing has occurred in or outside Hong Kong.
5.5 The Buyer represents and warrants to the Sellers that each Buyer Warranty is true, accurate and not misleading at the date of this Agreement. Immediately before Closing, the Buyer is deemed to warrant to the Sellers that each Buyer Warranty is true, accurate and not misleading by reference to the facts and circumstances on each day before Closing, and for this purpose only, any references in the Buyer Warranties to the date of this Agreement shall be construed as references to the relevant date. Unless otherwise set out in this Agreement, no other warranty is given by the Buyer.
5.6 The Buyer acknowledges that each of the Sellers is entering into this Agreement in reliance on each Buyer Warranty which has also been given as a representation and with the intention of inducing the Sellers to enter into this Agreement. The Buyer shall not invoke the Sellers’ constructive or imputed knowledge of a fact or circumstance which might make a Buyer Warranty untrue, inaccurate or misleading as a defence to a claim for breach of Clause 5.5.
5.7 The Buyer represents and warrants to the Sellers that:
5.7.1 the Buyer is a corporation duly organized and validly existing under the laws of its country of origin;
5.7.2 the Buyer has the legal right, full power and authority, and has taken all action necessary, to execute, deliver and to exercise its rights, rights and perform its obligationsobligations hereunder, under and this Agreement and any other the said documents to be executed by the Buyer pursuant to or in connection with this Agreementwhen signed shall constitute legal, which when executed will constitute valid and binding obligations on the Buyer;Vendor and enforceable in accordance with their terms.
5.7.3 6.2 The Vendor represents and warrants to the execution Purchaser that upon Completion, the Sale Shares sold by the Vendor shall be fully paid up and delivery ofare legally and beneficially owned by it, and it has the performance power, authority, legal capacity and has obtained authorisation to sell and transfer the Sale Shares to be sold by it, and that the Buyer Sale Shares to be sold by it shall be free from Encumbrances with all rights attached thereto on the Completion Date.
6.3 If, after the signing of its obligations under, this Agreement and before Completion, any other documents event shall occur or matter shall arise which results or may result in any of the Warranties being untrue, misleading or inaccurate in any respect, the Vendor giving such Warranty shall immediately notify the Purchaser in writing thereof prior to be executed by it pursuant to Completion.
6.4 The total aggregate liability of the Vendor for any claim or in connection with claims of breaches under this Agreement will not:(excluding other legal and other costs and expenses) shall not in any event exceed an amount equals to the Total Share Consideration.
(a) result 6.5 No claim may be brought against the Vendor in respect of a breach of any provision of the constitutional or organisational documents Warranties after expiration of a period of six months from the Buyer; or
Completion Date (b“Warranty Expiry Date") result and the Vendor shall not be liable in a breach respect of or give any third party a right to terminate or modify, or result in the creation of any Encumbrance under, any agreement, licence or other instrument or result in a breach of any order, judgment or decree of any court, governmental agency or regulatory body to which the Buyer or its nominee is a party or by which any of the Buyer Warranties unless it shall have received written notice from the Purchaser prior to the Warranty Expiry Date giving reasonable details of the relevant claim and any such claim shall (if not previously satisfied, settled or its nominee withdrawn) be deemed to have been waived or any withdrawn at the expiry of their respective assets is bound;a period of six months after the Warranty Expiry Date unless proceedings in respect thereof shall have already been commenced against the Vendor.
5.7.4 6.6 No claim shall lie against the Buyer is not required to obtain any other person’s consent Vendor (under or in relation to the acquisition Warranties or any provision of this Agreement) or to the Sale Shares;
5.7.5 no petition has been presented extent that such claim is attributable to any voluntary act, omission, transaction, or order made and no meeting convened arrangement carried out directly by the Purchaser or resolution passed for the winding up on its behalf or administration of the Buyer or for a provisional liquidator to be appointed in respect of the Buyer;
5.7.6 no distress, execution or other process has been levied on by persons deriving title from any of the assets Purchaser after the Completion.
6.7 The Vendor represents and warrants that, in entering into this Agreement: (i) it is not in possession of any inside information relating to the Company; (ii) it has not communicated, disseminated, relayed or disclosed any inside information relating to the Company, any shares of the BuyerCompany, and no judgment creditor nor any liquidator, provisional liquidator, receiver directors or an administrative receiver officers of the Buyer has been appointed and there is no reason to believe that such a person might be appointed;
5.7.7 no voluntary arrangement has been proposed in respect Company or any substantial shareholders of the Buyer Company; and its creditors; and
5.7.8 the Buyer (iii) it is not insolvent, in breach or unable to pay its debtsviolation of, and has not stopped paying its debts as they fall dueengaged in any acts, and no event analogous omissions or conduct which may cause it or the Purchaser to be in breach or violation of, any Applicable Laws, including any provisions of Parts XIII or XIV of the foregoing has occurred in or outside Securities and Futures Ordinance (Cap. 571 of the laws of Hong Kong).
5.8 Each of the Sellers undertakes to the Buyer that it shall not dispose of or enter into any agreement or arrangement to dispose of or permit the disposal of any of the Sale Shares, the disposal of which is subject to its discretion from the date of this Agreement and until the Long Stop Date or the date when this Agreement is terminated in accordance with Clause 3.3, whichever is earlier.
5.9 Each of the Sellers further undertakes to the Buyer that it shall exercise or procure to be exercised all the voting rights attaching to the Sale Listed Shares in favour of the resolution approving the Scheme and the Share Proposal at the shareholders’ meeting of the Company to be held on 17 September 2008, and any adjournment thereof.
Appears in 1 contract
Sources: Sale and Purchase Agreement (China Natural Resources Inc)
REPRESENTATIONS, WARRANTIES AND UNDERTAKINGS. 5.1 Each of the Sellers The Vendor represents and warrants to the Buyer Purchaser that the Recitals of this Agreement and each Seller Warranty of the Warranties set out in Schedule 2 is as at the date of this Agreement and will be for all times up to and including the date of Completion, remain true, accurate and not misleading in any respect.
5.2 The Warranties shall be deemed to be repeated as at Completion as if all references herein to the date of this Agreement. Immediately before Closing, each of the Sellers is deemed to warrant to the Buyer that each Seller Warranty is true, accurate and not misleading by reference to the facts and circumstances on each day before Closing, and for this purpose only any hereof were references in the Seller Warranties to the date of this Agreement shall be construed as references to the relevant date. Unless otherwise set out in this Agreement, no other warranty is given by the SellersCompletion.
5.2 Each of the Sellers 5.3 The Vendor acknowledges that the Buyer is entering Purchaser has entered into this Agreement in reliance on each Seller Warranty upon the Warranties, notwithstanding any information regarding the Group which has also been given as a representation and with may otherwise have come into the intention possession of inducing the Buyer to enter into this Agreement. The Sellers shall not invoke Purchaser or of which the Buyer’s Purchaser might have known or had constructive or imputed knowledge of a fact or circumstance which might make a Seller Warranty untrue, inaccurate or misleading as a defence to a claim for breach of Clause 5.1.
5.3 Each Seller Warranty is to be construed independently and (except where this Agreement provides otherwise) is not limited by a provision of this Agreement or another Warrantyknowledge.
5.4 Each The liabilities of the Sellers represents and warrants to the Buyer that:
5.4.1 each of the Sellers is an entity duly organized and validly existing under the laws of its country of origin;
5.4.2 each of the Sellers has the legal right, full power and authority, and has taken all action necessary, to execute, deliver and to exercise its rights, and perform its obligations, under this Agreement and any other documents to be executed by each of the Sellers pursuant to or in connection with this Agreement, which when executed will constitute valid and binding obligations on each Seller and its asset management clients for whose account the Sale Shares are managed and who are the beneficial owners;
5.4.3 the Sale Shares are beneficially owned by the Sellers’ asset management clients in managed accounts over which the Sellers have investment discretion. To the best of the Sellers’ knowledge, there is no other person who has any legal or beneficial interest in the Sale Shares;
5.4.4 each of the Sellers is validly appointed as discretionary investment manager by the beneficial owners in respect of the Sale Shares;
5.4.5 the Sale Shares are beneficially owned by the Sellers’ asset management clients; to the best of the Sellers’ knowledge, the beneficial owners of the Sale Shares have the full legal right to sell the Sale Shares and which are free from any Encumbrances;
5.4.6 upon completion of the Scheme, the Sellers’ asset management clients will be the sole beneficial owners of the New Unicom Shares and the New Unicom ADSs;
5.4.7 each of the Sellers has not created or permitted the creation of any Encumbrance nor entered into any agreement, arrangement or obligation to create or give an Encumbrance, in relation to any of the Sale Shares, the New Unicom Shares and/or the New Unicom ADSs, and to the best of the Sellers’ knowledge, no person has claimed to be entitled to an Encumbrance in relation to any of the Sale Shares, the New Unicom Shares and/or the New Unicom ADSs;
5.4.8 to the extent it held proxy voting authority, each of the Sellers has tendered votes in respect of the Shares underlying the Sale Netcom ADSs in favour of the resolution approving the scheme of arrangement under section 166 of the Companies Ordinance (Cap 32 of the Laws of Hong Kong) between the Company and the shareholders of the Company at the extraordinary general meeting of the Company to be held on 17 September 2008, and any adjournment thereof;
5.4.9 the execution and delivery of, and the performance by each of the Sellers of its obligations under, this Agreement and any other documents to be executed by it pursuant to or in connection with this Agreement will not:
(a) result in a breach of any provision of the constitutional or organisational documents of each of the Sellers;
(b) result in a breach of or give any third party a right to terminate or modify, or result in the creation of any Encumbrance under, any agreement, licence or other instrument or result in a breach of any order, judgment or decree of any court, governmental agency or regulatory body to which each of the Sellers or its nominee is a party or by which any of the Sellers or its nominee or any of their respective assets is bound; or
(c) result in any breach of any contractual covenants or investment management agreement to which each of the Sellers is subject;
5.4.10 each of the Sellers is not a “connected fund manager” (as defined in the Takeovers Code) or a “connected principal trader” (as defined in the Takeovers Code) of the offeror (i.e. Unicom) or the offeree company (i.e. the Company) nor a party acting in concert with the offeror and that consent from the Executive Director of the Corporate Finance Division of the Securities & Futures Commission is not required for the sale of the Sale Shares;
5.4.11 each of the Sellers is not required to obtain any other person’s consent Vendor in relation to the sale Warranties shall not be diminished or affected for reason of the Sale Shares, Purchaser having conducted due diligence on the New Unicom Shares and the New Unicom ADSs;
5.4.12 each of the Sellers is not a connected person (as such term is defined in the Rules Governing the Listing of Securities on The Hong Kong Stock Exchange Limited) of the Company or Unicom;
5.4.13 no petition has been presented or order made and no meeting convened or resolution passed for the winding up or administration of any of the Sellers or for a provisional liquidator to be appointed in respect of any of the Sellers;
5.4.14 no distress, execution or other process has been levied on any of the assets of any of the Sellers, and no judgment creditor nor any liquidator, provisional liquidator, receiver or an administrative receiver of any of the Sellers has been appointed and there is no reason to believe that such a person might be appointed;
5.4.15 no voluntary arrangement has been proposed in respect of any of the Sellers and their creditors; and
5.4.16 each of the Sellers is not insolvent, or unable to pay its debts, and has not stopped paying its debts as they fall due, and no event analogous to any of the foregoing has occurred in or outside Hong KongGroup.
5.5 The Buyer represents Each of the Warranties shall be separate and warrants independent and, except as expressly provided to the Sellers that each Buyer contrary, shall not be limited by reference to or inference from any other Warranty is true, accurate and not misleading at the date or any other term of this Agreement. Immediately before Closing, the Buyer is deemed to warrant to the Sellers that each Buyer Warranty is true, accurate and not misleading by reference to the facts and circumstances on each day before Closing, and for this purpose only, any references in the Buyer Warranties to the date of this Agreement shall be construed as references to the relevant date. Unless otherwise set out in this Agreement, no other warranty is given by the Buyer.
5.6 The Buyer acknowledges that each rights, including rights of rescission, conferred on the Sellers is entering into Purchaser by this Agreement are in reliance on each Buyer Warranty which has also been given as addition and without prejudice to all other rights and remedies available to the Purchaser and no exercise or failure to exercise a representation and with right under this Agreement or otherwise or to invoke a remedy shall constitute a waiver of that right or remedy by the intention of inducing the Sellers to enter into this Agreement. The Buyer shall not invoke the Sellers’ constructive or imputed knowledge of a fact or circumstance which might make a Buyer Warranty untrue, inaccurate or misleading as a defence to a claim for breach of Clause 5.5Purchaser.
5.7 The Buyer represents and warrants Vendor shall promptly disclose to the Sellers that:
5.7.1 the Buyer is a corporation duly organized and validly existing under the laws of its country of origin;
5.7.2 the Buyer has the legal right, full power and authority, and has taken all action necessary, to execute, deliver and to exercise its rights, and perform its obligations, under this Agreement and any other documents to be executed by the Buyer pursuant to or Purchaser in connection with this Agreement, which when executed will constitute valid and binding obligations on the Buyer;
5.7.3 the execution and delivery writing after it becomes aware of, and the performance by the Buyer of its obligations underany matter, this Agreement and any other documents to be executed by it pursuant to event or in connection with this Agreement will not:
(a) result in a breach of any provision of the constitutional circumstance which may arise or organisational documents of the Buyer; or
(b) result in a breach of or give any third party a right to terminate or modify, or result in the creation of any Encumbrance under, any agreement, licence or other instrument or result in a breach of any order, judgment or decree of any court, governmental agency or regulatory body to which the Buyer or its nominee is a party or by which any of the Buyer or its nominee or any of their respective assets is bound;
5.7.4 the Buyer is not required to obtain any other person’s consent in relation become known to the acquisition of the Sale Shares;
5.7.5 no petition has been presented or order made and no meeting convened or resolution passed for the winding up or administration of the Buyer or for a provisional liquidator to be appointed in respect of the Buyer;
5.7.6 no distress, execution or other process has been levied on any of the assets of the Buyer, and no judgment creditor nor any liquidator, provisional liquidator, receiver or an administrative receiver of the Buyer has been appointed and there is no reason to believe that such a person might be appointed;
5.7.7 no voluntary arrangement has been proposed in respect of the Buyer and its creditors; and
5.7.8 the Buyer is not insolvent, or unable to pay its debts, and has not stopped paying its debts as they fall due, and no event analogous to any of the foregoing has occurred in or outside Hong Kong.
5.8 Each of the Sellers undertakes to the Buyer that it shall not dispose of or enter into any agreement or arrangement to dispose of or permit the disposal of any of the Sale Shares, the disposal of which is subject to its discretion from Vendor after the date of this Agreement and until before Completion, which is inconsistent with any of the Long Stop Date Warranties or may render any of them misleading; has caused or may cause any material adverse effect on the date when business, operations, prospects or financial condition of the Group; or affect the ability of the Vendor to perform or observe any of its obligations, undertakings or covenants under this Agreement is terminated Agreement.
5.8 The Vendor shall not and shall procure each member of the Group not to do, permit or procure any act or omission before the Completion which will cause the Vendor to be in accordance with Clause 3.3breach of any of the Warranties, whichever is earlieror which would make any of the Warranties untrue, inaccurate or misleading in any respect.
5.9 Each The Vendor undertakes to indemnify and keep indemnified the Purchaser from and against any payment made or required to be made by any member of the Sellers further undertakes to Group or the Buyer that it shall exercise Purchaser as a result of or procure to be exercised all the voting rights attaching to the Sale Listed Shares in favour connection with any breach of any of the resolution approving Warranties and undertakings given herein and all claims, liabilities, losses, costs and expenses which the Scheme Purchaser may suffer or incur or which may be made against the Purchaser either before or after the commencement of and arising out of, or in respect of, any action in connection with:
(a) the Share Proposal at the shareholders’ meeting settlement of any claim that any of the Company Warranties is untrue or misleading or any of the Warranties has been breached in any material aspects;
(b) any legal proceedings taken by the Purchaser claiming that any of the Warranties is untrue or misleading or any of the Warranties has been breached and in which judgment is given for the Purchaser; and
(c) the enforcement of any such settlement or judgment.
5.10 The Purchaser’s rights in respect of each of the Warranties (including but not limited to be held on 17 September 2008, right under Clause 5.9) shall survive Completion and any adjournment thereofcontinue in full force and effect notwithstanding Completion.
Appears in 1 contract
REPRESENTATIONS, WARRANTIES AND UNDERTAKINGS. 5.1 Each of the Sellers represents The Pledgor represents, warrants and warrants undertakes to the Buyer that each Seller Warranty is true, accurate and not misleading at the date of this Agreement. Immediately before Closing, each of the Sellers is deemed to warrant to the Buyer that each Seller Warranty is true, accurate and not misleading by reference to the facts and circumstances on each day before Closing, and for this purpose only any references in the Seller Warranties to the date of this Agreement shall be construed as references to the relevant date. Unless otherwise set out in this Agreement, no other warranty is given by the Sellers.
5.2 Each of the Sellers acknowledges that the Buyer is entering into this Agreement in reliance on each Seller Warranty which has also been given as a representation and with the intention of inducing the Buyer to enter into this Agreement. The Sellers shall not invoke the Buyer’s constructive or imputed knowledge of a fact or circumstance which might make a Seller Warranty untrue, inaccurate or misleading as a defence to a claim for breach of Clause 5.1.
5.3 Each Seller Warranty is to be construed independently and (except where this Agreement provides otherwise) is not limited by a provision of this Agreement or another Warranty.
5.4 Each of the Sellers represents and warrants to the Buyer Pledgee that:
5.4.1 each of the Sellers (a) The Pledgor is an entity a corporation duly organized incorporated and validly existing under the laws of its country jurisdiction of origin;
5.4.2 each of the Sellers has the legal rightincorporation and not in liquidation, full with power and authority, and has taken all action necessary, to execute, deliver enter into this Agreement and to exercise its rights, rights and perform its obligations, under obligations hereunder and all corporate and other action required to authorise its execution and performance of this Agreement has been duly taken.
(b) The Pledgor owns, or will at the time of their being credited to the Collateral Account own, the Euroclear Securities free and clear of any encumbrances.
(c) This Agreement does not violate any contractual or other documents to be executed by each obligation binding upon the Pledgor.
(d) There is no floating charge (gage sur fonds de commerce / pand op handelszaak) or similar foreign law security in existence on the business of the Sellers pursuant to or in connection with this Agreement, which when executed will constitute valid and binding obligations on each Seller and its asset management clients for whose account the Sale Shares are managed and who are the beneficial owners;
5.4.3 the Sale Shares are beneficially owned by the Sellers’ asset management clients in managed accounts over which the Sellers have investment discretion. To the best of the Sellers’ knowledge, there is no Pledgor other person who has any legal or beneficial interest than as specified in the Sale Shares;Note Trust Deed.
5.4.4 each of the Sellers is validly appointed 5.2 The Pledgor undertakes as discretionary investment manager by the beneficial owners in respect of the Sale Shares;
5.4.5 the Sale Shares are beneficially owned by the Sellers’ asset management clients; to the best of the Sellers’ knowledge, the beneficial owners of the Sale Shares have the full legal right to sell the Sale Shares and which are free from any Encumbrances;
5.4.6 upon completion of the Scheme, the Sellers’ asset management clients will be the sole beneficial owners of the New Unicom Shares and the New Unicom ADSs;
5.4.7 each of the Sellers has not created or permitted the creation of any Encumbrance nor entered into any agreement, arrangement or obligation to create or give an Encumbrance, in relation to any of the Sale Shares, the New Unicom Shares and/or the New Unicom ADSs, and to the best of the Sellers’ knowledge, no person has claimed to be entitled to an Encumbrance in relation to any of the Sale Shares, the New Unicom Shares and/or the New Unicom ADSs;
5.4.8 to the extent it held proxy voting authority, each of the Sellers has tendered votes in respect of the Shares underlying the Sale Netcom ADSs in favour of the resolution approving the scheme of arrangement under section 166 of the Companies Ordinance (Cap 32 of the Laws of Hong Kong) between the Company and the shareholders of the Company at the extraordinary general meeting of the Company to be held on 17 September 2008, and any adjournment thereof;
5.4.9 the execution and delivery of, and the performance by each of the Sellers of its obligations under, this Agreement and any other documents to be executed by it pursuant to or in connection with this Agreement will notfollows:
(a) result The Pledgor shall not dispose of the Euroclear Securities, shall not create any other pledge, charge or encumbrance in a breach respect of the Euroclear Securities (irrespective of whether ranking behind the pledge created hereby), and shall not permit the existence of any provision of the constitutional such pledge, charge or organisational documents of each of the Sellers;encumbrance.
(b) result in a breach The Pledgor shall procure that no executory seizure (saisie execution/uitvoerend beslag) is made on the Euroclear Securities, and that any conservatory seizure (saisie conservatoire/bewarend beslag) thereon is lifted within 30 days of or give any third party a right to terminate or modify, or result in the creation of any Encumbrance under, any agreement, licence or other instrument or result in a breach of any order, judgment or decree of any court, governmental agency or regulatory body to which each of the Sellers or its nominee is a party or by which any of the Sellers or its nominee or any of their respective assets is bound; orfirst being made.
(c) result in any breach of any contractual covenants The Pledgor shall cooperate with the Pledgee and sign or investment management agreement cause to which each be signed all such further documents and take all such further action as the Pledgee may from time to time reasonably request to perfect and protect the pledge of the Sellers is subject;
5.4.10 each of Euroclear Securities and to carry out the Sellers is not a “connected fund manager” (as defined in the Takeovers Code) or a “connected principal trader” (as defined in the Takeovers Code) of the offeror (i.e. Unicom) or the offeree company (i.e. the Company) nor a party acting in concert with the offeror provisions and that consent from the Executive Director of the Corporate Finance Division of the Securities & Futures Commission is not required for the sale of the Sale Shares;
5.4.11 each of the Sellers is not required to obtain any other person’s consent in relation to the sale of the Sale Shares, the New Unicom Shares and the New Unicom ADSs;
5.4.12 each of the Sellers is not a connected person (as such term is defined in the Rules Governing the Listing of Securities on The Hong Kong Stock Exchange Limited) of the Company or Unicom;
5.4.13 no petition has been presented or order made and no meeting convened or resolution passed for the winding up or administration of any of the Sellers or for a provisional liquidator to be appointed in respect of any of the Sellers;
5.4.14 no distress, execution or other process has been levied on any of the assets of any of the Sellers, and no judgment creditor nor any liquidator, provisional liquidator, receiver or an administrative receiver of any of the Sellers has been appointed and there is no reason to believe that such a person might be appointed;
5.4.15 no voluntary arrangement has been proposed in respect of any of the Sellers and their creditors; and
5.4.16 each of the Sellers is not insolvent, or unable to pay its debts, and has not stopped paying its debts as they fall due, and no event analogous to any of the foregoing has occurred in or outside Hong Kong.
5.5 The Buyer represents and warrants to the Sellers that each Buyer Warranty is true, accurate and not misleading at the date purposes of this Agreement. Immediately before Closing, the Buyer is deemed to warrant to the Sellers that each Buyer Warranty is true, accurate and not misleading by reference to the facts and circumstances on each day before Closing, and for this purpose only, any references in the Buyer Warranties to the date of this Agreement shall be construed as references to the relevant date. Unless otherwise set out in this Agreement, no other warranty is given by the Buyer.
5.6 The Buyer acknowledges that each of the Sellers is entering into this Agreement in reliance on each Buyer Warranty which has also been given as a representation and with the intention of inducing the Sellers to enter into this Agreement. The Buyer shall not invoke the Sellers’ constructive or imputed knowledge of a fact or circumstance which might make a Buyer Warranty untrue, inaccurate or misleading as a defence to a claim for breach of Clause 5.5.
5.7 The Buyer represents and warrants to the Sellers that:
5.7.1 the Buyer is a corporation duly organized and validly existing under the laws of its country of origin;
5.7.2 the Buyer has the legal right, full power and authority, and has taken all action necessary, to execute, deliver and to exercise its rights, and perform its obligations, under this Agreement and any other documents to be executed by the Buyer pursuant to or in connection with this Agreement, which when executed will constitute valid and binding obligations on the Buyer;
5.7.3 the execution and delivery of, and the performance by the Buyer of its obligations under, this Agreement and any other documents to be executed by it pursuant to or in connection with this Agreement will not:
(a) result in a breach of any provision of the constitutional or organisational documents of the Buyer; or
(b) result in a breach of or give any third party a right to terminate or modify, or result in the creation of any Encumbrance under, any agreement, licence or other instrument or result in a breach of any order, judgment or decree of any court, governmental agency or regulatory body to which the Buyer or its nominee is a party or by which any of the Buyer or its nominee or any of their respective assets is bound;
5.7.4 the Buyer is not required to obtain any other person’s consent in relation to the acquisition of the Sale Shares;
5.7.5 no petition has been presented or order made and no meeting convened or resolution passed for the winding up or administration of the Buyer or for a provisional liquidator to be appointed in respect of the Buyer;
5.7.6 no distress, execution or other process has been levied on any of the assets of the Buyer, and no judgment creditor nor any liquidator, provisional liquidator, receiver or an administrative receiver of the Buyer has been appointed and there is no reason to believe that such a person might be appointed;
5.7.7 no voluntary arrangement has been proposed in respect of the Buyer and its creditors; and
5.7.8 the Buyer is not insolvent, or unable to pay its debts, and has not stopped paying its debts as they fall due, and no event analogous to any of the foregoing has occurred in or outside Hong Kong.
5.8 Each of the Sellers undertakes to the Buyer that it shall not dispose of or enter into any agreement or arrangement to dispose of or permit the disposal of any of the Sale Shares, the disposal of which is subject to its discretion from the date of this Agreement and until the Long Stop Date or the date when this Agreement is terminated in accordance with Clause 3.3, whichever is earlier.
5.9 Each of the Sellers further undertakes to the Buyer that it shall exercise or procure to be exercised all the voting rights attaching to the Sale Listed Shares in favour of the resolution approving the Scheme and the Share Proposal at the shareholders’ meeting of the Company to be held on 17 September 2008, and any adjournment thereof.
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