The Company and the Group. 3.1 each and every (i) Subsidiary and (ii) entity that the Company or any Subsidiary has agreed to acquire pursuant to a contractual obligation existing as of the date hereof has been disclosed in the Pricing Disclosure Package, the Offering Circular and the Hong Kong Prospectus, and the Company has no other associated companies or jointly controlled entities other than those as set forth in the Pricing Disclosure Package, the Offering Circular and the Hong Kong Prospectus; 3.2 save as disclosed in the Pricing Disclosure Package, the Offering Circular and the Hong Kong Prospectus, none of the Company or the Subsidiaries has conducted, is conducting or proposes to conduct any business, has acquired or proposes to acquire any property or asset or has incurred or proposed to incur any liability or obligation (including, without limitation, contingent liability or obligation), which is material to the Group but which is not directly or indirectly related to the business of the Group, taken as a whole, as described in each of the Pricing Disclosure Package, the Offering Circular and the Hong Kong Prospectus; 3.3 each of the Company and the Subsidiaries has been duly incorporated or established and is validly existing and in good standing under the Laws of the jurisdiction of its incorporation, registration or organization with legal right, power and authority (corporate and other) to own, use, lease and operate its properties and conduct its business in the manner presently conducted and as described in each of the Pricing Disclosure Package, the Offering Circular and the Hong Kong Prospectus, and has been duly qualified to transact business and is in good standing (where applicable) under the Laws of each other jurisdiction in which it owns or leases properties or conducts any business so as to require such qualification, except where failure to be so qualified would not, individually or in the aggregate, have a Material Adverse Effect; the articles of association, the business license and other constituent documents of each of the Company and the Subsidiaries comply with the requirements of the Laws of the jurisdiction of its incorporation, registration or organization and are in full force and effect; each of the Company and the Subsidiaries is capable of suing and being sued in its own name; each of the Subsidiaries that is a PRC entity has passed each annual examination by the applicable PRC Authorities without being found to have any material deficiency or material default under applicable PRC Laws, and has timely received all requisite material certifications from each applicable PRC Authority; 3.4 the Company has been duly registered as a non-Hong Kong company under Part 16 of the Companies Ordinance and the memorandum and articles of association and other constituent or constitutive documents of the Company comply with the Laws of Hong Kong (including the Listing Rules); 3.5 none of the Company or the Subsidiaries has taken any action nor have any steps been taken or legal, legislative or administrative proceedings been started (A) to wind up, make bankrupt, dissolve, deregister, make dormant, or eliminate the Company or any Subsidiary, or (B) to withdraw, revoke or cancel any Approvals and Filings required under any Laws applicable to, or from or with any Authority having jurisdiction over the Company or any of the Subsidiaries or any of their properties or assets, or otherwise from or with any other persons, in order to conduct business or operation of the Company or any Subsidiary, except in each case as described in each of the Pricing Disclosure Package, the Offering Circular and the Hong Kong Prospectus; 3.6 except as disclosed in each of the Pricing Disclosure Package, the Offering Circular and the Hong Kong Prospectus, (A) each of the Company and the Subsidiaries has valid title to all real properties and assets that it purports to own, in each case free and clear of all Encumbrances and defects; (B) each of the Company and the Subsidiaries has valid title to all personal assets and revenue generating assets it purports to own, in each case free and clear of all Encumbrances and defects, except as would not, individually or in the aggregate, materially and adversely affect the value of such property or asset, or would not, individually or in the aggregate, materially interfere with the use made and proposed to be made of such property or asset by the Company or the relevant Subsidiary, as applicable, or would not, individually or in the aggregate, result in a Material Adverse Effect; (C) each real property, building and unit held under lease by the Company or any Subsidiary is held by it under a legal and enforceable agreement and such lease is in full force and effect; (D) each lease to which the Company or any Subsidiary is a party has been duly executed and is legal, valid, binding and enforceable in accordance with its terms against the other parties thereto; (E) no default (or event which with notice or lapse of time, or both, would constitute such a default) by the Company or any Subsidiary has occurred and is continuing or is likely to occur under any of such leases, which would, individually or in the aggregate, constitute a Material Adverse Effect; neither the Company nor the Subsidiaries is aware of any action, suits, claims, demands, investigations, judgment, awards and proceedings of any nature that has been asserted by any person which (a) may be adverse to the rights or interests of the Company and/or the Subsidiaries under such lease, tenancy or license or (b) which may affect the rights of the Company and/or the Subsidiaries to the continued possession or use of such leased or licensed property or other asset; (F) the right of the Company and/or the Subsidiaries to possess or use such leased or licensed property or other asset is not subject to any unusual or onerous terms or conditions, with such exceptions as would not, individually or in the aggregate, materially interfere with the use made or proposed to be made of such property or asset by the Company and/or the relevant Subsidiaries; (G) the use of all properties owned or leased by the Company and/or the Subsidiaries is in accordance with its permitted use under all applicable Laws, and the use of any premises occupied by the Company and/or the Subsidiaries is in accordance with the terms provided for in the lease, tenancy, license, concession or agreement of whatsoever nature relating to such occupation, with such exceptions as would not, individually or in the aggregate, materially interfere with the use made and proposed to be made of such property or asset by the Company or the relevant Subsidiary, as applicable; (H) neither the Company nor any Subsidiary owns, operates, manages or has any other right or interest in any other material real property of any kind except as reflected in the audited consolidated financial statements of the Company as of 31 December 2021 included in each of the Pricing Disclosure Package, the Offering Circular and the Hong Kong Prospectus, and no other real properties are necessary in order for the Company or the Subsidiaries to carry on the businesses of the Company or the Subsidiaries in the manner described in each of the Pricing Disclosure Package, the Offering Circular and the Hong Kong Prospectus other than those real property the absence of which would, individually or in the aggregate, have a Material Adverse Effect; 3.7 the Company has the authorized and issued capital as set forth under the captions “Capitalization and Indebtedness” and “Share Capital” in each of the Pricing Disclosure Package, the Offering Circular and the Hong Kong Prospectus, and all of the issued shares of the Company (A) have been duly authorized, registered and validly issued, (B) are fully paid and non-assessable, (C) were not issued in violation of any pre-emptive, resale rights, rights of first refusal or similar rights, (D) conform to the description thereof contained in each of the Pricing Disclosure Package, the Offering Circular and the Hong Kong Prospectus, (E) have been issued in compliance with all applicable Laws and (F) are owned by existing shareholders identified and in the amounts specified, save for any rights granted under the Company’s pre-IPO financing agreements which will be terminated on the Listing Date, no holder of outstanding shares of the Company is and will be entitled to any pre-emptive, resale rights, rights of first refusal or other similar rights to acquire the Offer Shares or any other securities of the Company; and there are no outstanding securities convertible into or exchangeable for, or warrants, rights or options to purchase from the Company, or obligations of the Company to issue, the Shares or any other class of shares of the Company except pursuant to this Agreement, the International Underwriting Agreement; 3.8 each member of the Group is a legal person with limited liability, and the liability of the Company in respect of equity interests directly or indirectly held by it in such Subsidiary is limited to its investment therein; all the issued shares of, capital stock of or ownership interests in each member of the Group have been duly authorized, registered and validly issued and are fully paid and non-assessable, and are owned by the Company either directly, or indirectly through wholly-owned Subsidiaries, free and clear of all Encumbrances; none of the issued shares of, capital stock of or ownership interests in any Subsidiary was issued, or subscribed to, in violation of the pre-emptive or similar rights of any shareholder of such Subsidiary; and there are no outstanding rights, warrants or options to acquire, or instruments convertible into or exchangeable for, any shares of capital stock of, or direct interest in the Company or any Subsidiary;
Appears in 2 contracts
Sources: Hong Kong Underwriting Agreement, Hong Kong Underwriting Agreement
The Company and the Group. 3.1 each and every (i) Subsidiary and (ii) entity that the Company or any Subsidiary has agreed to acquire pursuant to a contractual obligation existing as 2.1 As of the date hereof has been disclosed in the Pricing Disclosure Packageof this Agreement, the Offering Circular and the Hong Kong Prospectus, and the Company has no other associated companies or jointly controlled entities other than those the authorised and issued Shares as set forth in the Pricing Disclosure Package, the Offering Circular and each of the Hong Kong Prospectus;
3.2 save as disclosed Prospectus and the Preliminary Offering Circular in the Pricing Disclosure Packagesection headed “Share Capital”, and all of the Offering Circular and the Hong Kong Prospectus, none issued shares of the Company have been duly authorised and validly issued and are fully paid and non-assessable, have been issued in compliance with all applicable Laws, were not issued in violation of any pre-emptive right, resale right, right of first refusal or the Subsidiaries has conducted, is conducting similar right and are subject to no Encumbrance or proposes to conduct any business, has acquired or proposes to acquire any property or asset or has incurred or proposed to incur any liability or obligation (including, without limitation, contingent liability or obligation), which is material to the Group but which is not directly or indirectly related to the business of the Group, taken as a whole, as described in each of the Pricing Disclosure Package, the Offering Circular and the Hong Kong Prospectus;adverse claims.
3.3 each of the 2.2 The Company and the Subsidiaries has been duly incorporated or established and is validly existing and as a corporation in good standing under the Laws of the jurisdiction of its incorporationPRC, registration or organization with legal full right, power and authority (corporate and other) to own, use, lease and operate its properties or assets and conduct its business in the manner presently conducted and as described in each of the Pricing Disclosure Package, the Offering Circular Hong Kong Prospectus and the Hong Kong ProspectusPreliminary Offering Circular, to execute and has been duly qualified deliver each of this Agreement and the other Operative Documents, to transact business issue, sell and is in good standing (where applicable) deliver the Offer Shares as contemplated herein and under the Laws of each other jurisdiction in which it owns or leases properties or conducts any business so as to require such qualification, except where failure to be so qualified would not, individually or in the aggregate, have a Material Adverse EffectGlobal Offering; the articles Articles of association, the business license Association and other constituent or constitutive documents of each of the Company and the Subsidiaries comply with the requirements of the Laws of the jurisdiction of its incorporation, registration or organization PRC and are in full force and effect; each of the Company and the Subsidiaries is capable of suing and being sued in its own name; each of the Subsidiaries that is a PRC entity has passed each annual examination by the applicable PRC Authorities without being found to have any material deficiency or material default under applicable PRC Laws, and has timely received all requisite material certifications from each applicable PRC Authority;
3.4 the Company has been duly registered as a non-Hong Kong company under Part 16 of the Companies Ordinance and the Articles of Association, the memorandum and articles of association and other constituent or constitutive documents of the Company comply with the Laws of Hong Kong (including including, without limitation, the Listing Rules);.
3.5 none 2.3 The Company is duly qualified to transact business and is in good standing in each jurisdiction where such qualification is required (by virtue of the Company its business, ownership or the Subsidiaries has taken any action nor have any steps been taken leasing of properties or legal, legislative assets or administrative proceedings been started otherwise).
(A) to wind up, make bankrupt, dissolve, deregister, make dormant, or eliminate The Company has no subsidiaries other than those as set forth the Company or any Subsidiary, or Hong Kong Prospectus and the Preliminary Offering Circular; (B) to withdrawexcept as disclosed in all of the Hong Kong Prospectus and the Preliminary Offering Circular, revoke or cancel any Approvals and Filings required under any Laws applicable to, or from or with any Authority having jurisdiction over the Company or any owns all of the Subsidiaries issued or any registered share capital or other equity interests of their properties or assets, or otherwise from or with any other persons, in order to conduct business or operation of the Company or any Subsidiary, except in each case as described in each of the Pricing Disclosure Package, the Offering Circular and the Hong Kong Prospectus;
3.6 except as disclosed in each other members of the Pricing Disclosure Package, the Offering Circular and the Hong Kong Prospectus, (A) each of the Company and the Subsidiaries has valid title to all real properties and assets that it purports to own, in each case free and clear of all Encumbrances and defects; (B) each of the Company and the Subsidiaries has valid title to all personal assets and revenue generating assets it purports to own, in each case free and clear of all Encumbrances and defects, except as would not, individually or in the aggregate, materially and adversely affect the value of such property or asset, or would not, individually or in the aggregate, materially interfere with the use made and proposed to be made of such property or asset by the Company or the relevant Subsidiary, as applicable, or would not, individually or in the aggregate, result in a Material Adverse EffectGroup; (C) each real property, building and unit held under lease by other than the Company share capital or any Subsidiary is held by it under a legal and enforceable agreement and such lease is in full force and effect; (D) each lease to which the Company or any Subsidiary is a party has been duly executed and is legal, valid, binding and enforceable in accordance with its terms against the other parties thereto; (E) no default (or event which with notice or lapse equity interests of time, or both, would constitute such a default) by the Company or any Subsidiary has occurred and is continuing or is likely to occur under any of such leases, which would, individually or in the aggregateother members of the Group, constitute a Material Adverse Effect; neither the Company nor the Subsidiaries is aware does not own, directly or indirectly, any share capital or any other equity interests or long-term debt securities of or in any actioncorporation, suitsfirm, claimspartnership, demandsjoint venture, investigations, judgment, awards and proceedings of any nature that has been asserted by any person which (a) may be adverse to the rights or interests of the Company and/or the Subsidiaries under such lease, tenancy or license or (b) which may affect the rights of the Company and/or the Subsidiaries to the continued possession or use of such leased or licensed property association or other assetentity; (F) the right of the Company and/or the Subsidiaries to possess or use such leased or licensed property or other asset is not subject to any unusual or onerous terms or conditions, with such exceptions as would not, individually or in the aggregate, materially interfere with the use made or proposed to be made of such property or asset by the Company and/or the relevant Subsidiaries; (G) the use of all properties owned or leased by the Company and/or the Subsidiaries is in accordance with its permitted use under all applicable Laws, and the use of any premises occupied by the Company and/or the Subsidiaries is in accordance with the terms provided for in the lease, tenancy, license, concession or agreement of whatsoever nature relating to such occupation, with such exceptions as would not, individually or in the aggregate, materially interfere with the use made and proposed to be made of such property or asset by the Company or the relevant Subsidiary, as applicable; (H) neither the Company nor any Subsidiary owns, operates, manages or has any other right or interest in any other material real property of any kind except as reflected in the audited consolidated financial statements of the Company as of 31 December 2021 included in each of the Pricing Disclosure Package, the Offering Circular and the Hong Kong Prospectus, and no other real properties are necessary in order for the Company or the Subsidiaries to carry on the businesses of the Company or the Subsidiaries in the manner described in each of the Pricing Disclosure Package, the Offering Circular and the Hong Kong Prospectus other than those real property the absence of which would, individually or in the aggregate, have a Material Adverse Effect;
3.7 the Company has the authorized and issued capital as set forth under the captions “Capitalization and Indebtedness” and “Share Capital” in each of the Pricing Disclosure Package, the Offering Circular and the Hong Kong Prospectus, and all of the issued shares of each of the Company (A) members of the Group that is a non-PRC person have been duly authorized, registered authorised and validly issued, (B) are fully paid up and non-assessable, (C) were not issued in violation of any pre-emptive, resale rights, rights of first refusal or similar rights, (D) conform to the description thereof contained in each of the Pricing Disclosure Package, the Offering Circular and the Hong Kong Prospectus, (E) have been issued in compliance with all applicable Laws and (F) are owned by existing shareholders identified and were not issued in the amounts specified, save for any rights granted under the Company’s pre-IPO financing agreements which will be terminated on the Listing Date, no holder violation of outstanding shares of the Company is and will be entitled to any pre-emptiveemptive right, resale rightsright, rights right of first refusal or similar right and are owned by the Company subject to no Encumbrance or adverse claims; (D) the registered capital (in the form of shares or otherwise) of each of the members of the Group that is a PRC person has been duly and validly established, all of such registered capital has been validly issued and fully paid up with all contributions to such registered capital having been paid within the time periods prescribed under applicable PRC Laws and all payments of such contributions having been approved by the applicable PRC Authorities, and no obligation for the payment of a contribution to such registered capital remains outstanding; all of such registered capital has been issued in compliance with all applicable Laws and was not issued in violation of any pre-emptive right, resale right, right of first refusal or similar right and is owned by the Company subject to no Encumbrance or adverse claims; and (E) except as disclosed in the Hong Kong Prospectus and the Preliminary Offering Circular, no options, warrants or other similar rights to acquire the Offer Shares purchase, agreements or other obligations to issue or other rights to convert any obligation into shares of capital stock or other securities equity interests of or in any member of the Company; and there Group are no outstanding securities convertible into or exchangeable for, or warrants, rights or options to purchase from the Company, or obligations outstanding.
2.5 Each member of the Company to issueGroup has been duly incorporated, registered or organized and is validly existing as a legal person with limited liability in good standing under the Shares or any other class of shares Laws of the Company except pursuant jurisdiction of its incorporation, registration or organization, with full right, power and authority (corporate and other) to this Agreementown, use, lease and operate its properties or assets and conduct its business in the International Underwriting Agreement;
3.8 manner presently conducted and as described in each of the Hong Kong Prospectus and the Preliminary Offering Circular; each member of the Group is a legal person with limited liabilityduly qualified to transact business and is in good standing in each jurisdiction where such qualification is required (by virtue of its business, ownership or leasing of properties or assets or otherwise); the memorandum and articles of association and other constituent or constitutive documents and the liability business licence of the Company in respect of equity interests directly or indirectly held by it in such Subsidiary is limited to its investment therein; all the issued shares of, capital stock of or ownership interests in each member of the Group have been duly authorizedcomply with the requirements of the Laws of the jurisdiction of its incorporation, registered and validly issued and are fully paid and non-assessableregistration or organization, and are owned in full force and effect. Each of the members of the Group that is a PRC person has passed each annual examination by the Company either directlyapplicable PRC Authorities without being found to have any material deficiency or to be in material default under applicable PRC Laws and has timely received all requisite certifications from each applicable PRC Authority.
2.6 No member of the Group is conducting or proposes to conduct any business, or indirectly through wholly-owned Subsidiarieshas or proposes to acquire or incur any property or asset or liability or obligation (including, free and clear of all Encumbrances; none without limitation, contingent liability or obligation), which is material to such member of the issued shares of, capital stock Group but which is not directly or indirectly related to the business of or ownership interests in any Subsidiary was issued, or subscribed to, in violation such member of the pre-emptive Group or similar rights the business of any shareholder the Group, taken as a whole, as described in each of such Subsidiary; the Hong Kong Prospectus and there are no outstanding rights, warrants or options to acquire, or instruments convertible into or exchangeable for, any shares of capital stock of, or direct interest in the Company or any Subsidiary;Preliminary Offering Circular.
Appears in 2 contracts
Sources: Hong Kong Underwriting Agreement, Hong Kong Underwriting Agreement
The Company and the Group. 3.1 each and every (i) Subsidiary and (ii) entity that the Company or any Subsidiary has agreed to acquire pursuant to a contractual obligation existing as of the date hereof has been disclosed in the Pricing Disclosure Package, the Offering Circular and the Hong Kong Prospectus, and the Company has no other associated companies or jointly controlled entities other than those as set forth in the Pricing Disclosure Package, the Offering Circular and the Hong Kong Prospectus;
3.2 save as disclosed in the Pricing Disclosure Package, the Offering Circular and the Hong Kong Prospectus, none of the Company or the Subsidiaries has conducted, is conducting or proposes to conduct any business, has acquired or proposes to acquire any property or asset or has incurred or proposed to incur any liability or obligation (including, without limitation, contingent liability or obligation), which is material to the Group but which is not directly or indirectly related to the business of the Group, taken as a whole, as described in each of the Pricing Disclosure Package, the Offering Circular and the Hong Kong Prospectus;
3.3 each of the Company and the Subsidiaries has been duly incorporated or established and is validly existing and in good standing under the Laws of the jurisdiction of its incorporation, registration or organization with legal right, power and authority (corporate and other) to own, use, lease and operate its properties and conduct its business in the manner presently conducted and as described in each of the Pricing Disclosure Package, the Offering Circular and the Hong Kong Prospectus, and has been duly qualified to transact business and is in good standing (where applicable) under the Laws of each other jurisdiction in which it owns or leases properties or conducts any business so as to require such qualification, except where failure to be so qualified would not, individually or in the aggregate, have a Material Adverse Effect; the articles of association, the business license and other constituent documents of each of the Company and the Subsidiaries comply with the requirements of the Laws of the jurisdiction of its incorporation, registration or organization and are in full force and effect; each of the Company and the Subsidiaries is capable of suing and being sued in its own name; each of the Subsidiaries that is a PRC entity has passed each annual examination by the applicable PRC Authorities without being found to have any material deficiency or material default under applicable PRC Laws, and has timely received all requisite material certifications from each applicable PRC Authority;
3.4 the Company has been duly registered as a non-Hong Kong company under Part 16 of the Companies Ordinance and the memorandum and articles of association and other constituent or constitutive documents of the Company comply with the Laws of Hong Kong (including the Listing Rules);
3.5 none of the Company or the Subsidiaries has taken any action nor have any steps been taken or legal, legislative or administrative proceedings been started (A) to wind up, make bankrupt, dissolve, deregister, make dormant, or eliminate the Company or any Subsidiary, or (B) to withdraw, revoke or cancel any Approvals and Filings required under any Laws applicable to, or from or with any Authority having jurisdiction over the Company or any of the Subsidiaries or any of their properties or assets, or otherwise from or with any other persons, in order to conduct business or operation of the Company or any Subsidiary, except in each case as described in each of the Pricing Disclosure Package, the Offering Circular and the Hong Kong Prospectus;
3.6 except as disclosed in each of the Pricing Disclosure Package, the Offering Circular and the Hong Kong Prospectus, (A) each of the Company and the Subsidiaries has valid title to all real properties and assets that it purports to own, in each case free and clear of all Encumbrances and defects; (B) each of the Company and the Subsidiaries has valid title to all personal assets and revenue generating assets it purports to own, in each case free and clear of all Encumbrances and defects, except as would not, individually or in the aggregate, materially and adversely affect the value of such property or asset, or would not, individually or in the aggregate, materially interfere with the use made and proposed to be made of such property or asset by the Company or the relevant Subsidiary, as applicable, or would not, individually or in the aggregate, result in a Material Adverse Effect; (C) each real property, building and unit held under lease by the Company or any Subsidiary is held by it under a legal and enforceable agreement and such lease is in full force and effect; (D) each lease to which the Company or any Subsidiary is a party has been duly executed and is legal, valid, binding and enforceable in accordance with its terms against the other parties thereto; (E) no default (or event which with notice or lapse of time, or both, would constitute such a default) by the Company or any Subsidiary has occurred and is continuing or is likely to occur under any of such leases, which would, individually or in the aggregate, constitute a Material Adverse Effect; neither the Company nor the Subsidiaries is aware of any action, suits, claims, demands, investigations, judgment, awards and proceedings of any nature that has been asserted by any person which (a) may be adverse to the rights or interests of the Company and/or the Subsidiaries under such lease, tenancy or license or (b) which may affect the rights of the Company and/or the Subsidiaries to the continued possession or use of such leased or licensed property or other asset; (F) the right of the Company and/or the Subsidiaries to possess or use such leased or licensed property or other asset is not subject to any unusual or onerous terms or conditions, conditions with such exceptions as would not, individually or in the aggregate, materially interfere with the use made or proposed to be made of such property or asset by the Company and/or the relevant Subsidiaries; (G) the use of all properties owned or leased by the Company and/or the Subsidiaries is in accordance with its permitted use under all applicable Laws, and the use of any premises occupied by the Company and/or the Subsidiaries is in accordance with the terms provided for in the lease, tenancy, license, concession or agreement of whatsoever nature relating to such occupation, with such exceptions as would not, individually or in the aggregate, materially interfere with the use made and proposed to be made of such property or asset by the Company or the relevant Subsidiary, as applicable; (H) neither the Company nor any Subsidiary owns, operates, manages or has any other right or interest in any other material real property of any kind except as reflected in the audited consolidated financial statements of the Company as of 31 December 31, 2021 included in each of the Pricing Disclosure Package, the Offering Circular and the Hong Kong Prospectus, and no other real properties are necessary in order for the Company or the Subsidiaries to carry on the businesses of the Company or the Subsidiaries in the manner described in each of the Pricing Disclosure Package, the Offering Circular and the Hong Kong Prospectus other than those real property the absence of which would, individually or in the aggregate, have a Material Adverse Effect;
3.7 the Company has the authorized and issued capital as set forth under the captions “Capitalization and Indebtedness” and “Share Capital” in each of the Pricing Disclosure Package, the Offering Circular and the Hong Kong Prospectus, and all of the issued shares of the Company (A) have been duly authorized, registered and validly issued, (B) are fully paid and non-assessable, (C) were not issued in violation of any pre-emptive, resale rights, rights of first refusal or similar rights, (D) conform to the description thereof contained in each of the Pricing Disclosure Package, the Offering Circular and the Hong Kong Prospectus, (E) have been issued in compliance with all applicable Laws and (F) are owned by existing shareholders identified and in the amounts specified, save for any rights granted under the Company’s pre-IPO financing agreements which will be terminated on the Listing Date, no holder of outstanding shares of the Company is and will be entitled to any pre-emptive, resale rights, rights of first refusal or other similar rights to acquire the Offer Shares or any other securities of the Company; and there are no outstanding securities convertible into or exchangeable for, or warrants, rights or options to purchase from the Company, or obligations of the Company to issue, the Shares or any other class of shares of the Company except pursuant to this Agreement, Agreement or the International Hong Kong Underwriting Agreement;
3.8 each member of the Group is a legal person with limited liability, and the liability of the Company in respect of equity interests directly or indirectly held by it in such Subsidiary is limited to its investment therein; all the issued shares of, capital stock of or ownership interests in each member of the Group have been duly authorized, registered and validly issued and are fully paid and non-non- assessable, and are owned by the Company either directly, or indirectly through wholly-owned Subsidiaries, free and clear of all Encumbrances; none of the issued shares of, capital stock of or ownership interests in any Subsidiary was issued, or subscribed to, in violation of the pre-emptive or similar rights of any shareholder of such Subsidiary; and there are no outstanding rights, warrants or options to acquire, or instruments convertible into or exchangeable for, any shares of capital stock of, or direct interest in the Company or any Subsidiary;
Appears in 1 contract
Sources: International Underwriting Agreement
The Company and the Group. 3.1 each and every (i) Subsidiary and (ii) entity that the Company or any Subsidiary has agreed to acquire pursuant to a contractual obligation existing as 2.1 As of the date hereof of this Agreement, the Company has been disclosed the issued share capital as set forth in the Pricing Disclosure Package, the Offering Circular and section of each of the Hong Kong Prospectus, and the Company has no other associated companies or jointly controlled entities other than those as set forth in the Pricing Disclosure Package, the Preliminary Offering Circular and the Hong Kong Prospectus;
3.2 save as disclosed in PHIP (except for the Pricing Disclosure Package, disclosure which have been intentionally taken out from the Preliminary Offering Circular and the Hong Kong ProspectusPHIP) headed “Share Capital”, none and all of the issued shares of the Company have been duly authorised and validly issued and are fully paid (or the Subsidiaries has conducted, is conducting or proposes to conduct any business, has acquired or proposes to acquire any property or asset or has incurred or proposed to incur any liability or obligation (including, without limitation, contingent liability or obligation), which is material to the Group but which is not directly or indirectly related to the business of the Group, taken credited as a wholefully paid, as described applicable) and non-assessable, have been issued in each compliance with all applicable Laws, were not issued in violation of the Pricing Disclosure Packageany pre-emptive right, the Offering Circular resale right, right of first refusal or similar right and the Hong Kong Prospectus;are subject to no Encumbrance or adverse claims.
3.3 each of the 2.2 The Company and the Subsidiaries has been duly incorporated or established and is validly existing and in good standing as a joint stock company with limited liability under the Laws of the jurisdiction of its incorporationPRC, registration or organization with legal full right, power and authority (corporate and other) to own, use, lease lease, as the case may be, and to operate its properties or assets and conduct its business in the manner presently conducted and as described in each of the Pricing Disclosure PackageHong Kong Prospectus, the Preliminary Offering Circular and the Hong Kong ProspectusPHIP (except for the disclosure which have been intentionally taken out from the Preliminary Offering Circular and the PHIP), to execute and has been duly qualified deliver each of this Agreement and the Operative Documents, to transact business issue, sell and is in good standing (where applicable) deliver the Offer Shares as contemplated herein and under the Laws of each other jurisdiction in which it owns or leases properties or conducts any business so as to require such qualification, except where failure to be so qualified would not, individually or in the aggregate, have a Material Adverse EffectGlobal Offering; the articles Articles of association, the business license Association and other constituent or constitutive documents of each of the Company and the Subsidiaries comply with the requirements of the Laws of the jurisdiction of its incorporation, registration or organization PRC and are in full force and effect; each of the Company and the Subsidiaries is capable of suing and being sued in its own name; each of the Subsidiaries that is a PRC entity has passed each annual examination by the applicable PRC Authorities without being found to have any material deficiency or material default under applicable PRC Laws, and has timely received all requisite material certifications from each applicable PRC Authority;
3.4 the Company has been duly registered as a non-Hong Kong company under Part 16 of the Companies Ordinance and the memorandum and articles Articles of association Association and other constituent or constitutive documents of the Company comply with the Laws of Hong Kong (including including, without limitation, the Listing Rules);) where applicable.
3.5 none of 2.3 The Company is duly qualified to transact business and is in good standing in each jurisdiction where the Company operates and such qualification is required (by virtue of its business, ownership or the Subsidiaries has taken any action nor have any steps been taken or legal, legislative or administrative proceedings been started (A) to wind up, make bankrupt, dissolve, deregister, make dormant, or eliminate the Company or any Subsidiary, or (B) to withdraw, revoke or cancel any Approvals and Filings required under any Laws applicable to, or from or with any Authority having jurisdiction over the Company or any leasing of the Subsidiaries or any of their properties or assets, assets or otherwise from or with any other persons, in order to conduct business or operation of the Company or any Subsidiaryotherwise), except in each case as described in each of where the Pricing Disclosure Package, the Offering Circular and the Hong Kong Prospectus;
3.6 except as disclosed in each of the Pricing Disclosure Package, the Offering Circular and the Hong Kong Prospectus, (A) each of the Company and the Subsidiaries has valid title to all real properties and assets that it purports to own, in each case free and clear of all Encumbrances and defects; (B) each of the Company and the Subsidiaries has valid title to all personal assets and revenue generating assets it purports to own, in each case free and clear of all Encumbrances and defects, except as would not, individually or in the aggregate, materially and adversely affect the value of such property or asset, or would not, individually or in the aggregate, materially interfere with the use made and proposed failure to be made of such property or asset by the Company or the relevant Subsidiary, as applicable, or so qualified and in good standing would not, individually or in the aggregate, result in a Material Adverse Effect; Change.
(CA) each real propertyThe Company has no subsidiaries, building jointly-controlled companies and unit held under lease by the Company or any Subsidiary is held by it under a legal and enforceable agreement and such lease is in full force and effect; (D) each lease to which the Company or any Subsidiary is a party has been duly executed and is legal, valid, binding and enforceable in accordance with its terms against the associated companies other parties thereto; (E) no default (or event which with notice or lapse of time, or both, would constitute such a default) by the Company or any Subsidiary has occurred and is continuing or is likely to occur under any of such leases, which would, individually or than those as set forth in the aggregate, constitute a Material Adverse Effect; neither the Company nor the Subsidiaries is aware sections of any action, suits, claims, demands, investigations, judgment, awards and proceedings of any nature that has been asserted by any person which (a) may be adverse to the rights or interests of the Company and/or the Subsidiaries under such lease, tenancy or license or (b) which may affect the rights of the Company and/or the Subsidiaries to the continued possession or use of such leased or licensed property or other asset; (F) the right of the Company and/or the Subsidiaries to possess or use such leased or licensed property or other asset is not subject to any unusual or onerous terms or conditions, with such exceptions as would not, individually or in the aggregate, materially interfere with the use made or proposed to be made of such property or asset by the Company and/or the relevant Subsidiaries; (G) the use of all properties owned or leased by the Company and/or the Subsidiaries is in accordance with its permitted use under all applicable Laws, and the use of any premises occupied by the Company and/or the Subsidiaries is in accordance with the terms provided for in the lease, tenancy, license, concession or agreement of whatsoever nature relating to such occupation, with such exceptions as would not, individually or in the aggregate, materially interfere with the use made and proposed to be made of such property or asset by the Company or the relevant Subsidiary, as applicable; (H) neither the Company nor any Subsidiary owns, operates, manages or has any other right or interest in any other material real property of any kind except as reflected in the audited consolidated financial statements of the Company as of 31 December 2021 included in each of the Pricing Disclosure Package, the Offering Circular and the Hong Kong Prospectus, the Preliminary Offering Circular and no other real properties are necessary the PHIP headed “History and Development”, “Appendix I – Accountants’ Report” and “Appendix VII – Statutory and General Information”; (B) except as disclosed in order for all of the Hong Kong Prospectus and the Preliminary Offering Circular and the PHIP under the sections headed “History and Development”, “Appendix I – Accountant’s Report” and “Appendix VII – Statutory and General Information”, the Company or the Subsidiaries to carry on the businesses owns all of the Company issued or the Subsidiaries in the manner described registered share capital or other equity interests of or in each of the Pricing Disclosure Package, other members of the Offering Circular and the Hong Kong Prospectus Group; (C) other than those real property the absence share capital or other equity interests of which would, individually or in the aggregateother members of the Group, have a Material Adverse Effect;
3.7 the Company has the authorized and issued does not own, directly or indirectly, any share capital as set forth under the captions “Capitalization and Indebtedness” and “Share Capital” or any other equity interests or long-term debt securities of or in each of the Pricing Disclosure Packageany corporation, the Offering Circular and the Hong Kong Prospectusfirm, and partnership, joint venture, association or other entity; all of the issued shares of each of the Company (A) members of the Group that is a non-PRC person have been duly authorized, registered authorised and validly issued, (B) are fully paid up and non-assessable, (C) were not issued in violation of any pre-emptive, resale rights, rights of first refusal or similar rights, (D) conform to the description thereof contained in each of the Pricing Disclosure Package, the Offering Circular and the Hong Kong Prospectus, (E) have been issued in compliance with all applicable Laws and (F) are owned by existing shareholders identified and were not issued in the amounts specified, save for any rights granted under the Company’s pre-IPO financing agreements which will be terminated on the Listing Date, no holder violation of outstanding shares of the Company is and will be entitled to any pre-emptiveemptive right, resale rightsright, rights right of first refusal or similar right and are owned by the Company subject to no Encumbrance or adverse claims; (D) except as disclosed in all of the Hong Kong Prospectus the Preliminary Offering Circular, the PHIP or any legal opinion(s) issued by the PRC legal advisers, the registered capital (in the form of shares or otherwise) of each of the members of the Group that is a PRC person has been duly and validly established, all of such registered capital has been validly issued and fully paid up with all contributions to such registered capital having been paid within the time periods prescribed under applicable PRC Laws and all payments of such contributions having been approved by the applicable PRC Authorities, and no obligation for the payment of a contribution to such registered capital remains outstanding; all of such registered capital has been issued in compliance with all applicable Laws and was not issued in violation of any pre-emptive right, resale right, right of first refusal or similar right and is owned by the Company subject to no Encumbrance or adverse claims; and (E) no options, warrants or other similar rights to acquire the Offer Shares purchase, agreements or other obligations to issue or other rights to convert any obligation into shares of capital stock or other securities equity interests of or in any member of the Company; and there Group are no outstanding securities convertible into or exchangeable for, or warrants, rights or options to purchase (except for the disclosure which have been intentionally taken out from the Company, or obligations Preliminary Offering Circular and the PHIP).
2.5 Each member of the Company Group has been duly incorporated, registered or organised and is validly existing as a legal person with limited liability in good standing under the Laws of the jurisdiction of its incorporation, registration or organisation, with full right, power and authority (corporate and other) to issueown, use, lease and operate its properties or assets and conduct its business in the manner presently conducted and as described in each of the Hong Kong Prospectus, the Shares or any other class of shares of Preliminary Offering Circular and the Company PHIP (except pursuant to this Agreement, for the International Underwriting Agreement;
3.8 disclosure which have been intentionally taken out from the Preliminary Offering Circular and the PHIP); each member of the Group is a legal person with limited liability, capable of suing and the liability of the Company being sued in respect of equity interests directly or indirectly held by it in such Subsidiary is limited to its investment thereinown name; all the issued shares of, capital stock of or ownership interests in each member of the Group have been is duly authorizedqualified to transact business and is in good standing in each jurisdiction where such qualification is required (by virtue of its business, registered ownership or leasing of properties or assets or otherwise), except where the failure to be so qualified and validly issued in good standing would not, individually or in the aggregate, result in a Material Adverse Change; the articles of association and are fully paid other constituent or constitutive documents and non-assessablethe business licence of each member of the Group comply with the requirements of the Laws of the jurisdiction of its incorporation, registration or organisation, and are owned in full force and effect. Each of the members of the Group that is a PRC person has passed each annual examination by the Company either directlyapplicable PRC Authorities without being found to have any material deficiency or to be in material default under applicable PRC Laws and has timely received all requisite certifications from each applicable PRC Authority.
2.6 No member of the Group is conducting or proposes to conduct any business, or indirectly through wholly-owned Subsidiarieshas or proposes to acquire or incur any property or asset or liability or obligation (including, free and clear of all Encumbrances; none without limitation, contingent liability or obligation), which is material to such member of the issued shares of, capital stock Group but which is not directly or indirectly related to the business of or ownership interests in any Subsidiary was issued, or subscribed to, in violation such member of the pre-emptive Group or similar rights the business of any shareholder the Group, taken as a whole, as described in each of such Subsidiary; the Hong Kong Prospectus, the Preliminary Offering Circular and there are no outstanding rights, warrants or options to acquire, or instruments convertible into or exchangeable for, any shares of capital stock of, or direct interest in the Company or any Subsidiary;PHIP (except for the disclosure which have been intentionally taken out from the Preliminary Offering Circular and the PHIP).
Appears in 1 contract
Sources: Hong Kong Underwriting Agreement
The Company and the Group. 3.1 each and every (i) Subsidiary and (ii) entity that the Company or any Subsidiary has agreed to acquire pursuant to a contractual obligation existing as 2.1 As of the date hereof has been disclosed in of this Agreement, all of the Pricing Disclosure Package, the Offering Circular and the Hong Kong Prospectus, and the Company has no other associated companies or jointly controlled entities other than those as set forth in the Pricing Disclosure Package, the Offering Circular and the Hong Kong Prospectus;
3.2 save as disclosed in the Pricing Disclosure Package, the Offering Circular and the Hong Kong Prospectus, none issued shares of the Company or the Subsidiaries has conductedhave been duly authorized and validly issued and are fully paid and non-assessable, is conducting or proposes to conduct any businesshave been issued in compliance with all applicable Laws, has acquired or proposes to acquire any property or asset or has incurred or proposed to incur any liability or obligation (including, without limitation, contingent liability or obligation), which is material to the Group but which is were not directly or indirectly related to the business issued in violation of the Group, taken as a whole, as described in each Company's Articles of the Pricing Disclosure Package, the Offering Circular Association and the Hong Kong Prospectus;are subject to no Encumbrance.
3.3 each of the 2.2 The Company and the Subsidiaries has been duly incorporated or established and is validly existing and as a corporation in good standing under the Laws of the jurisdiction of its incorporationCayman Islands, registration or organization with legal right, power and authority (corporate and other) to own, use, lease and operate its properties or assets and conduct its business in the manner presently conducted and as described in the Listing Documentation, to execute and deliver this Agreement, and each of the Pricing Disclosure PackageRelated Agreements and to perform its obligations hereunder and thereunder (as used herein, "Related Agreements" refers to the Offering Circular deposit agreement among the Company, JPMorgan Chase Bank, N.A. and the Hong Kong ProspectusCompany's ADS holders and beneficial owners, Registrar's Agreement and has been duly qualified to transact business the Dealers Agreements) as contemplated herein and is in good standing (where applicable) under the Laws of each other jurisdiction in which it owns or leases properties or conducts any business so as to require such qualification, except where failure to be so qualified would not, individually or in the aggregate, have a Material Adverse EffectIntroduction; the articles memorandum of association, the business license Articles of Association and other constituent or constitutive documents of each of the Company and the Subsidiaries comply with the requirements of the Laws of the jurisdiction of its incorporation, registration or organization Cayman Islands and are in full force and effect; each of the Company and the Subsidiaries is capable of suing and being sued in its own name; each of the Subsidiaries that is a PRC entity has passed each annual examination by the applicable PRC Authorities without being found to have any material deficiency or material default under applicable PRC Laws, and has timely received all requisite material certifications from each applicable PRC Authority;.
3.4 the 2.3 The Company has been duly registered as a non-Hong Kong company under Part 16 of the Companies Ordinance and the Ordinance. The memorandum and articles of association association, Articles of Association and other constituent or constitutive documents and the business license of the Company comply with the applicable Laws of Hong Kong (including including, without limitation, the Listing Rules);
3.5 none ) and the requirements of the Company or Laws of the Subsidiaries has taken any action nor have any steps been taken or legal, legislative or administrative proceedings been started Cayman Islands and are in full force and effect.
(A) to wind up, make bankrupt, dissolve, deregister, make dormant, or eliminate The Company has no principal subsidiaries and jointly controlled companies other than those as set forth in the Company or any Subsidiary, or section of the Listing Documentation headed "Appendix IA – Accountant's Report of the Group;"
(B) other than those listed in exhibit 8.1 to withdrawthe annual report on Form 20-F for the fiscal year ended December 31, revoke or cancel any Approvals and Filings required under any Laws applicable to, or from or with any Authority having jurisdiction over 2021 filed by the Company or any of with the Subsidiaries or any of their properties or assetsSEC, or otherwise from or with any other persons, in order to conduct business or operation of the Company does not own or control, directly or indirectly, any Subsidiarycorporation or entity that is a "significant subsidiary" as defined under Rule 1-02 of Regulation S-X under the Securities Exchange Act of 1934, except in each case as described in each of amended (with the Pricing Disclosure Packagerules and regulations promulgated thereunder, the Offering Circular and the Hong Kong Prospectus;
3.6 "Exchange Act"); (C) except as disclosed in the section of each of the Pricing Disclosure PackageListing Documentation headed "Appendix IA – Accountant's Report of the Group," the Company owns all of the issued or registered share capital or other equity interests of or in each of its subsidiaries; (D) other than the share capital or other equity interests of or in the Company's subsidiaries and except as disclosed in the Listing Documentation, the Offering Circular Company does not own, directly or indirectly, any share capital or any other equity interests or long-term debt securities of or in any corporation, firm, partnership, joint venture, association or other entity; all of the issued shares of each of the members of the Group that is a non-PRC person have been duly authorized and validly issued, are fully paid up or otherwise in compliance with the applicable Laws and non-assessable, have been issued in compliance with all applicable Laws and were not issued in violation of any pre- emptive right, resale right, right of first refusal or similar right and are owned by the Company subject to no Encumbrance; (E) each of the members of the Group that is a PRC person has been duly and validly established, and the Hong Kong Prospectusregistered capital (in the form of shares or otherwise) of such member controlled by the Company has been validly issued and fully paid up or otherwise in compliance with applicable Laws with all contributions to such registered capital having been paid in accordance with applicable PRC Laws; except as disclosed in the Listing Documentation, all of such registered capital has been issued in compliance with all applicable Laws and were not issued in violation of any pre-emptive right, resale right, right of first refusal or similar right and are owned by the Company; and (F) except as disclosed in the Listing Documentation, no options, warrants or other rights to purchase, agreements or other obligations to issue or other rights to convert any obligation into shares of capital stock or other equity interests of or in any member of the Group which are controlled by the Company are outstanding; and (G) each of the other members of the Group is a legal person with limited liability and the liability of the Company in respect of equity interests held in each such member of the Group is limited to its investment therein.
2.5 Except as disclosed in the Listing Documentation, each member of the Group has been duly incorporated, registered or organized and is validly existing as a legal person with limited liability under the Laws of the jurisdiction of its incorporation or registration, with full right, power and authority (corporate and other) to own, use, lease and operate its properties or assets and conduct its business in the manner presently conducted and as described in the Listing Documentation in all material aspects.
2.6 Except as disclosed in the Listing Documentation, (A) each member of the Company Group and the Subsidiaries has valid title to Group as a whole is in compliance with the relevant PRC foreign investment laws in all real properties and assets that it purports to own, in each case free and clear of all Encumbrances and defectsmaterial respects; (B) the Contractual Arrangements have each been duly authorized, executed and delivered by the parties thereto and, individually and collectively, constitute legal, valid and binding agreements, enforceable by the parties thereto in accordance with their respective terms, subject, as to enforceability, bankruptcy, insolvency, reorganization, moratorium and similar laws of general applicability relating to or affecting creditors' rights and to general equity principles; (C) no consent, approval, authorization, or order of, or filing or registration with, any person (including any governmental agency or body or any court) is required for the performance of the obligations under any Contractual Arrangement by the parties thereto, except for such that has been obtained or performed. There is no legal or governmental proceeding, inquiry or investigation pending against any member of the Group in any jurisdiction challenging the validity of any of the Contractual Arrangements and, to the best knowledge of the Company after due and careful inquiry, no such proceeding, inquiry or investigation is contemplated in any jurisdiction; (D) the execution, delivery and performance of each Contractual Arrangements by the parties thereto do not and will not result in a breach or violation of any of the terms and provisions of, or constitute a default under, or result in the imposition of any lien, charge or encumbrance upon any property or assets of any member of the Group pursuant to (x) the Memorandum of Association, Articles of Association and other constituent or constitutive documents and the Subsidiaries has valid title business license of any member of the Group, (y) any statute, rule, regulation or order of any governmental agency or body or any court, domestic or foreign, having jurisdiction over any member of the Group or any of their properties, or (z) any indenture, mortgage, deed of trust, loan agreement or other agreement or instrument to all personal assets and revenue generating assets it purports which any member of the Group is a party or by which any member of the Group is bound or to own, in each case free and clear which any of all Encumbrances and defectsthe properties of any member of the Group is subject, except as would not, individually or in the aggregatecases of (y) and (z) where such breach, materially and adversely affect the value of such property violation or asset, or would not, individually or in the aggregate, materially interfere with the use made and proposed to be made of such property or asset by the Company or the relevant Subsidiary, as applicable, or default would not, individually or in the aggregate, result in a Material Adverse Effect; (CE) each real property, building and unit held under lease by of the Company or any Subsidiary is held by it under a legal and enforceable agreement and such lease Contractual Arrangements is in full force and effect; (D) each lease effect and to which the best knowledge of the Company after due and careful inquiry, none of the parties thereto is in breach or default in the performance of any Subsidiary is a party of the terms or provisions of such Contractual Arrangement. To the best knowledge of the Company after due and careful inquiry, none of the parties to any of the Contractual Arrangements has sent or received any communication regarding termination of, or intention not to renew, any of the Contractual Arrangements, and, to the best knowledge of the Company after due and careful inquiry, no such termination or non-renewal has been duly executed and threatened or is legal, valid, binding and enforceable in accordance with its terms against being contemplated by any of the other parties thereto; (E) no default (or event which with notice or lapse of time, or both, would constitute such a default) by the Company or any Subsidiary has occurred and is continuing or is likely to occur under any of such leases, which would, individually or in the aggregate, constitute a Material Adverse Effect; neither the Company nor the Subsidiaries is aware of any action, suits, claims, demands, investigations, judgment, awards and proceedings of any nature that has been asserted by any person which (a) may be adverse to the rights or interests of the Company and/or the Subsidiaries under such lease, tenancy or license or (b) which may affect the rights of the Company and/or the Subsidiaries to the continued possession or use of such leased or licensed property or other asset; (F) the right of the Company and/or the Subsidiaries to possess or use such leased or licensed property or other asset is not subject to any unusual or onerous terms or conditions, with such exceptions as would not, individually or statements set forth in the aggregateListing Documentation concerning the Contractual Arrangements, materially interfere with are complete, true and accurate in all material aspects and not misleading. "Contractual Arrangements" means a series of contractual arrangements entered into between Shenzhen OneConnect Technology Services Co., Ltd., ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇ (Guangzhou) Technology Co., Ltd., Shenzhen OneConnect Smart Technology Co., Ltd., Shenzhen E-commerce Safety Certificates Administration Co., Ltd. and the use made Shareholders of Shenzhen OneConnect Smart Technology Co., Ltd. or proposed to be made the Shareholders of such property or asset by the Company and/or the relevant Subsidiaries; Shenzhen E-commerce Safety Certificates Administration Co., Ltd. (Gas applicable), including (i) the use of all properties owned or leased by the Company and/or the Subsidiaries is in accordance with its permitted use under all applicable Laws, and the use of any premises occupied by the Company and/or the Subsidiaries is in accordance with the terms provided for in the lease, tenancy, license, concession or agreement of whatsoever nature relating to such occupation, with such exceptions as would not, individually or in the aggregate, materially interfere with the use made and proposed to be made of such property or asset by the Company or the relevant Subsidiary, as applicable; (H) neither the Company nor any Subsidiary owns, operates, manages or has any other right or interest in any other material real property of any kind except as reflected in the audited consolidated financial statements of the Company as of 31 December 2021 included in each of the Pricing Disclosure Package, the Offering Circular and the Hong Kong Prospectus, and no other real properties are necessary in order for the Company or the Subsidiaries to carry on the businesses of the Company or the Subsidiaries in the manner described in each of the Pricing Disclosure Package, the Offering Circular and the Hong Kong Prospectus other than those real property the absence of which would, individually or in the aggregate, have a Material Adverse Effect;
3.7 the Company has the authorized and issued capital as set forth under the captions “Capitalization and Indebtedness” and “Share Capital” in each of the Pricing Disclosure Package, the Offering Circular and the Hong Kong Prospectus, and all of the issued shares of the Company (A) have been duly authorized, registered and validly issuedExclusive Business Cooperation Agreements, (Bii) are fully paid and non-assessablethe Exclusive Equity Purchase Option Agreements, (Ciii) were not issued in violation of any pre-emptive, resale rights, rights of first refusal or similar rightsthe Exclusive Asset Purchase Option Agreements, (Div) conform to the description thereof contained in each of the Pricing Disclosure Package, the Offering Circular and the Hong Kong Prospectus, (E) have been issued in compliance with all applicable Laws and (F) are owned by existing shareholders identified and in the amounts specified, save for any rights granted under the Company’s pre-IPO financing agreements which will be terminated on the Listing Date, no holder of outstanding shares of the Company is and will be entitled to any pre-emptive, resale rights, rights of first refusal or other similar rights to acquire the Offer Shares or any other securities of the Company; and there are no outstanding securities convertible into or exchangeable for, or warrants, rights or options to purchase from the Company, or obligations of the Company to issue, the Shares or any other class of shares of the Company except pursuant to this Agreement, the International Underwriting Agreement;
3.8 each member of the Group is a legal person with limited liability, and the liability of the Company in respect of equity interests directly or indirectly held by it in such Subsidiary is limited to its investment therein; all the issued shares of, capital stock of or ownership interests in each member of the Group have been duly authorized, registered and validly issued and are fully paid and non-assessable, and are owned by the Company either directly, or indirectly through wholly-owned Subsidiaries, free and clear of all Encumbrances; none of the issued shares of, capital stock of or ownership interests in any Subsidiary was issued, or subscribed to, in violation of the pre-emptive or similar rights of any shareholder of such Subsidiary; and there are no outstanding rights, warrants or options to acquire, or instruments convertible into or exchangeable for, any shares of capital stock of, or direct interest in the Company or any Subsidiary;Equity Pledge Agreements,
Appears in 1 contract
Sources: Sponsors Agreement
The Company and the Group. 3.1 each and every (i) Subsidiary and (ii) entity that the Company or any Subsidiary has agreed to acquire pursuant to a contractual obligation existing as of the date hereof has been disclosed in the Pricing Disclosure Package, the Offering Circular and the Hong Kong Prospectus, and the 2.1 The Company has no other associated companies or jointly controlled entities other than those the authorised and issued share capital as set forth in the Pricing Disclosure Package, the Offering Circular and the Hong Kong Prospectus;
3.2 save as disclosed in the Pricing Disclosure Package, the Offering Circular and the Hong Kong Prospectus, none of the Company or the Subsidiaries has conducted, is conducting or proposes to conduct any business, has acquired or proposes to acquire any property or asset or has incurred or proposed to incur any liability or obligation (including, without limitation, contingent liability or obligation), which is material to the Group but which is not directly or indirectly related to the business of the Group, taken as a whole, as described in each of the Pricing Disclosure PackageRegistration Statement, the Offering Circular Disclosure Package and the Hong Kong Prospectus;
3.3 each of the Company and the Subsidiaries has been duly incorporated or established and is validly existing and in good standing under the Laws of the jurisdiction of its incorporation, registration or organization with legal right, power and authority (corporate and other) to own, use, lease and operate its properties and conduct its business in the manner presently conducted and as described in each of the Pricing Disclosure Package, the Offering Circular and the Hong Kong Prospectus, and has been duly qualified to transact business and is in good standing (where applicable) under the Laws of each other jurisdiction in which it owns or leases properties or conducts any business so as to require such qualification, except where failure to be so qualified would not, individually or in the aggregate, have a Material Adverse Effect; the articles of association, the business license and other constituent documents of each of the Company and the Subsidiaries comply with the requirements of the Laws of the jurisdiction of its incorporation, registration or organization and are in full force and effect; each of the Company and the Subsidiaries is capable of suing and being sued in its own name; each of the Subsidiaries that is a PRC entity has passed each annual examination by the applicable PRC Authorities without being found to have any material deficiency or material default under applicable PRC Laws, and has timely received all requisite material certifications from each applicable PRC Authority;
3.4 the Company has been duly registered as a non-Hong Kong company under Part 16 of the Companies Ordinance and the memorandum and articles of association and other constituent or constitutive documents of the Company comply with the Laws of Hong Kong (including the Listing Rules);
3.5 none of the Company or the Subsidiaries has taken any action nor have any steps been taken or legal, legislative or administrative proceedings been started (A) to wind up, make bankrupt, dissolve, deregister, make dormant, or eliminate the Company or any Subsidiary, or (B) to withdraw, revoke or cancel any Approvals and Filings required under any Laws applicable to, or from or with any Authority having jurisdiction over the Company or any of the Subsidiaries or any of their properties or assets, or otherwise from or with any other persons, in order to conduct business or operation of the Company or any Subsidiary, except in each case as described in each of the Pricing Disclosure Package, the Offering Circular and the Hong Kong Prospectus;
3.6 except as disclosed in each of the Pricing Disclosure Package, the Offering Circular and the Hong Kong Prospectus, (A) each of the Company and the Subsidiaries has valid title to all real properties and assets that it purports to own, in each case free and clear of all Encumbrances and defects; (B) each of the Company and the Subsidiaries has valid title to all personal assets and revenue generating assets it purports to own, in each case free and clear of all Encumbrances and defects, except as would not, individually or in the aggregate, materially and adversely affect the value of such property or asset, or would not, individually or in the aggregate, materially interfere with the use made and proposed to be made of such property or asset by the Company or the relevant Subsidiary, as applicable, or would not, individually or in the aggregate, result in a Material Adverse Effect; (C) each real property, building and unit held under lease by the Company or any Subsidiary is held by it under a legal and enforceable agreement and such lease is in full force and effect; (D) each lease to which the Company or any Subsidiary is a party has been duly executed and is legal, valid, binding and enforceable in accordance with its terms against the other parties thereto; (E) no default (or event which with notice or lapse of time, or both, would constitute such a default) by the Company or any Subsidiary has occurred and is continuing or is likely to occur under any of such leases, which would, individually or in the aggregate, constitute a Material Adverse Effect; neither the Company nor the Subsidiaries is aware of any action, suits, claims, demands, investigations, judgment, awards and proceedings of any nature that has been asserted by any person which (a) may be adverse to the rights or interests of the Company and/or the Subsidiaries under such lease, tenancy or license or (b) which may affect the rights of the Company and/or the Subsidiaries to the continued possession or use of such leased or licensed property or other asset; (F) the right of the Company and/or the Subsidiaries to possess or use such leased or licensed property or other asset is not subject to any unusual or onerous terms or conditions, with such exceptions as would not, individually or in the aggregate, materially interfere with the use made or proposed to be made of such property or asset by the Company and/or the relevant Subsidiaries; (G) the use of all properties owned or leased by the Company and/or the Subsidiaries is in accordance with its permitted use under all applicable Laws, and the use of any premises occupied by the Company and/or the Subsidiaries is in accordance with the terms provided for in the lease, tenancy, license, concession or agreement of whatsoever nature relating to such occupation, with such exceptions as would not, individually or in the aggregate, materially interfere with the use made and proposed to be made of such property or asset by the Company or the relevant Subsidiary, as applicable; (H) neither the Company nor any Subsidiary owns, operates, manages or has any other right or interest in any other material real property of any kind except as reflected in the audited consolidated financial statements of the Company as of 31 December 2021 included in each of the Pricing Disclosure Package, the Offering Circular and the Hong Kong Prospectus, and no other real properties are necessary in order for the Company or the Subsidiaries to carry on the businesses of the Company or the Subsidiaries in the manner described in each of the Pricing Disclosure Package, the Offering Circular and the Hong Kong Final International Prospectus other than those real property the absence of which would, individually or in the aggregate, have a Material Adverse Effect;
3.7 the Company has the authorized and issued capital as set forth under the captions “Capitalization and Indebtedness” and “Share Capital” in each of the Pricing Disclosure Package, the Offering Circular and the Hong Kong Prospectus, and all of the issued shares of the Company (A) have been duly authorized, registered authorized and validly issued, (B) issued and are fully paid and non-assessable, (C) were not issued in violation of any pre-emptive, resale rights, rights of first refusal or similar rights, (D) assessable and conform to the description thereof contained in each of the Pricing Disclosure PackageRegistration Statement, the Offering Circular Disclosure Package and the Hong Kong Final International Prospectus; all of the issued share capital of each of the other members of the Group has been duly and validly authorized and issued, are owned directly or indirectly by the Company, and except as described in each of the Registration Statement, the Disclosure Package and the Final International Prospectus, free and clear of any Encumbrance; except as described in each of the Registration Statement, the Disclosure Package and the Final International Prospectus (E) have been including securities issued in compliance with all applicable Laws and (F) are owned by existing shareholders identified and pursuant to the 2019 Equity Incentive Plan described in the amounts specifiedRegistration Statement, save for any rights granted under the Company’s pre-IPO financing agreements which will be terminated on Disclosure Package and the Listing DateFinal International Prospectus), no holder of outstanding shares of the Company is and will be entitled to any pre-emptive, resale rights, rights of first refusal or other similar rights to acquire the Offer Shares or any other securities of the Company; and there are no outstanding securities convertible into or exchangeable for, or warrants, rights or options to purchase from the Company, or obligations of the Company to issue, the Shares Shares, or any other class of shares share capital of the Company; the Shares, when issued and delivered against payment therefor, may be freely deposited by the Company with the HKSCC; the Shares, when issued and delivered against payment therefor, will be freely transferable by the Company to or for the account of the several Underwriters and the initial purchasers thereof; and there are no restrictions on subsequent transfers of the Shares under the laws of the PRC, Hong Kong, the Cayman Islands, or the United States, except as described in the Registration Statement, the Disclosure Package and the Final International Prospectus.
2.2 The Company has been duly incorporated and is validly existing as a corporation in good standing under the laws of its jurisdiction of incorporation, with power and authority (corporate and other) to own, lease and operate its properties and conduct its business as described in the Registration Statement, the Disclosure Package and the Final International Prospectus, and has been duly qualified as a foreign corporation for the transaction of business and is in good standing under the laws of each other jurisdiction in which it owns or leases properties or conducts any business so as to require such qualification, or is subject to no material liability or disability by reason of the failure to be so qualified in any such jurisdiction. Each subsidiary of the Company has been duly incorporated or organized and is validly existing and in good standing under the laws of its jurisdiction of incorporation or organization, with power and authority (corporate and other) to own, lease and operate its properties and conduct its business as described in the Registration Statement, the Disclosure Package and the Final International Prospectus, and has been duly qualified as a foreign corporation for the transaction of business and is in good standing under the laws of each other jurisdiction in which it owns or leases properties or conducts any business so as to require such qualification, or is subject to no material liability or disability by reason of the failure to be so qualified in any such jurisdiction, except pursuant as described in each of the Registration Statement, the Disclosure Package and the Final International Prospectus. None of the Company or any other member of the Group nor any person acting on behalf of any of them has taken any action, nor have any steps been taken or any actions, suits or proceedings under any Laws been started or threatened in writing, to wind up, liquidate, dissolve, make dormant or eliminate the Company or any other member of the Group.
2.3 Except as described in each of the Registration Statement, the Disclosure Package and the Final International Prospectus, each of the Company and any other member of the Group that were incorporated outside of the PRC has taken, or is in the process of taking, if applicable, all reasonable steps to comply with, and to ensure compliance by each of its shareholders and option holders that, to the knowledge of the Company, is, or is directly or indirectly owned or controlled by, a PRC resident or citizen with applicable rules and regulations of the State Administration of Foreign Exchange relating to overseas investment into the Company by PRC residents and citizens (the “SAFE Regulations”), including without limitation, requesting each shareholder and option holder that, to the knowledge of the Company, is, or is directly or indirectly owned or controlled by, a PRC resident or citizen to complete any registration and other procedures required under applicable SAFE Regulations.
2.4 The Company is aware of and has been advised as to the content of the Rules on Mergers and Acquisitions of Domestic Enterprises by Foreign Investors jointly promulgated by the Ministry of Commerce, the State Assets Supervision and Administration Commission, the State Administration of Taxation, the State Administration of Industry and Commerce (which has been merged into the State Administration for Market Regulation), the China Securities Regulatory Commission (the “CSRC”) and the State Administration of Foreign Exchange of the PRC on August 8, 2006 and amended on June 22, 2009 (the “PRC Mergers and Acquisition Rules”), including the relevant provisions thereof which purport to require offshore special purpose entities formed for listing purposes and controlled directly or indirectly by PRC companies or individuals, to obtain the approval of the CSRC prior to the listing and trading of their securities on an overseas stock exchange. The Company has received legal advice specifically with respect to the PRC Mergers and Acquisitions Rules from its PRC counsel and the Company understands such legal advice. The issuance and sale of the Offer Shares, the listing and trading of the Offer Shares on the SEHK and the New York Stock Exchange and the consummation of the transactions contemplated by this Agreement, the Hong Kong Underwriting Agreement and the Deposit Agreement (i) is not and will not be materially and adversely affected by the PRC Mergers and Acquisitions Rules or any official clarifications, guidance, interpretations or implementation rules (ii) does not require the prior approval of the CSRC.
2.5 Each of the Company and its subsidiaries has obtained or made and hold and are in compliance with all Approvals and Filings under any Laws applicable to, or from or with any Authority having jurisdiction over the Company and its subsidiaries required in order to own, lease, license and use its properties, assets and conduct its business in the manner described in the Registration Statement, the Disclosure Package and the Final International Underwriting Agreement;
3.8 each Prospectus, except where the failure to obtain such Approvals and Filings would not have a Material Adverse Change, and such Approvals and Filings contain no material restrictions or conditions not described in the Registration Statement, the Disclosure Package and the Final International Prospectus; no member of the Group is a legal person with limited liabilityaware that any Authority is considering revoking, suspending or modifying, any such Approvals and Filings; and the liability of the Company in respect of equity interests directly or indirectly held by it in such Subsidiary is limited to its investment therein; all the issued shares of, capital stock of or ownership interests in each and any other member of the Group are in compliance with the provisions of all such Approvals and Filings, except such violation would not have been duly authorizeda Material Adverse Change.
2.6 (A) The Company has no subsidiaries other than those as set forth in the Registration Statement, registered the Disclosure Package and validly issued the Final International Prospectus; and are fully paid (B) except as disclosed in each of the Registration Statement, the Disclosure Package and non-assessablethe Final International Prospectus, and are owned by the Company either directly, or indirectly through wholly-owned Subsidiaries, free and clear of owns all Encumbrances; none of the issued shares of, or registered share capital stock or other equity interests of or ownership interests in any Subsidiary was issued, or subscribed to, in violation each of the pre-emptive or similar rights other members of any shareholder of such Subsidiary; and there are no outstanding rights, warrants or options to acquire, or instruments convertible into or exchangeable for, any shares of capital stock of, or direct interest in the Company or any Subsidiary;Group.
Appears in 1 contract
The Company and the Group. 3.1 each and every (i) Subsidiary and (ii) entity that the Company or any Subsidiary has agreed to acquire pursuant to a contractual obligation existing as 2.1 As of the date hereof has been disclosed in the Pricing Disclosure Packageof this Agreement, the Offering Circular Company has the authorised and issued share capital as set forth in each of the Hong Kong Prospectus, and the Company has no other associated companies or jointly controlled entities other than those as set forth in the Pricing Disclosure Package, the Preliminary Offering Circular and the Hong Kong Prospectus;
3.2 save as disclosed PHIP in the Pricing Disclosure Packagesection headed “Share Capital”, and all of the Offering Circular issued shares of the Company have been duly authorised and validly issued and are fully paid and non-assessable, are owned by the existing shareholders and in the amounts specified in each of the Hong Kong Prospectus, none of the Company or the Subsidiaries has conducted, is conducting or proposes to conduct any business, has acquired or proposes to acquire any property or asset or has incurred or proposed to incur any liability or obligation (including, without limitation, contingent liability or obligation), which is material to the Group but which is not directly or indirectly related to the business of the Group, taken as a whole, as described in each of the Pricing Disclosure Package, the Preliminary Offering Circular and the Hong Kong Prospectus;PHIP, have been issued in compliance with all applicable Laws, were not issued in violation of any pre-emptive right, resale right, right of first refusal or similar right or the Memorandum and Articles and are subject to no Encumbrance or adverse claims.
3.3 each of the 2.2 The Company and the Subsidiaries has been duly incorporated or established incorporated, is capable of suing and being sued and is validly existing and as an exempted company with limited liability in good standing under the Laws of the jurisdiction of its incorporationCayman Islands, registration or organization with legal full right, power and authority (corporate and other) to own, use, lease and operate its properties and assets and conduct its business in the manner presently conducted and as described in each of the Pricing Disclosure PackageHong Kong Prospectus, the Preliminary Offering Circular and the Hong Kong ProspectusPHIP, to execute and deliver, and has been duly qualified perform all of its obligations and undertakings under each of this Agreement, the International Underwriting Agreement and the Operative Documents and to transact business perform its obligations thereunder, to issue, sell and is in good standing (where applicable) deliver the Offer Shares as contemplated herein and under the Laws of each other jurisdiction in which it owns or leases properties or conducts any business so as to require such qualification, except where failure to be so qualified would not, individually or in the aggregate, have a Material Adverse EffectGlobal Offering; the articles of association, the business license Memorandum and Articles and other constituent or constitutive documents of each and the business licence of the Company and the Subsidiaries Company, if applicable, comply with the requirements of the Laws of the jurisdiction of its incorporation, registration or organization Cayman Islands and are in full force and effect; each of the Company and the Subsidiaries is capable of suing and being sued in its own name; each of the Subsidiaries that is a PRC entity has passed each annual examination by the applicable PRC Authorities without being found to have any material deficiency or material default under applicable PRC Laws, and has timely received all requisite material certifications from each applicable PRC Authority;
3.4 the Company has been duly registered as a non-Hong Kong company under Part 16 of the Companies Ordinance and the memorandum Memorandum and articles of association Articles and other constituent or constitutive documents and the business registration certificate of the Company comply with the Laws of Hong Kong (including including, without limitation, the Listing Rules);.
3.5 none 2.3 The Company is duly qualified to transact business and is in good standing in each jurisdiction where such qualification is required (by virtue of the Company its business, ownership or the Subsidiaries has taken any action nor have any steps been taken leasing of properties or legal, legislative assets or administrative proceedings been started otherwise).
(A) to wind upThe Company has no subsidiaries, make bankrupt, dissolve, deregister, make dormant, or eliminate the Company or any Subsidiary, or (B) to withdraw, revoke or cancel any Approvals jointly-controlled companies and Filings required under any Laws applicable to, or from or with any Authority having jurisdiction over the Company or any of the Subsidiaries or any of their properties or assets, or otherwise from or with any associated companies other persons, in order to conduct business or operation of the Company or any Subsidiary, except in each case than those as described set forth in each of the Pricing Disclosure Package, the Offering Circular and the Hong Kong Prospectus;
3.6 except as disclosed in each of the Pricing Disclosure Package, the Offering Circular and the Hong Kong Prospectus, (A) each of the Company Preliminary Offering Circular and the Subsidiaries has valid title to all real properties and assets that it purports to own, PHIP in each case free and clear of all Encumbrances and defectsthe section headed “Appendix I – Accountants' Report”; (B) the Company owns all of the issued or authorised share capital or other equity interests of or in each of the Company and other members of the Subsidiaries has valid title to all personal assets and revenue generating assets it purports to own, in each case free and clear of all Encumbrances and defects, except as would not, individually or in the aggregate, materially and adversely affect the value of such property or asset, or would not, individually or in the aggregate, materially interfere with the use made and proposed to be made of such property or asset by the Company or the relevant Subsidiary, as applicable, or would not, individually or in the aggregate, result in a Material Adverse EffectGroup; (C) each real propertyother than the share capital or other equity interests of or in the other members of the Group, building and unit held under lease by the Company does not own, directly or indirectly, any share capital or any Subsidiary is held by it under a legal and enforceable agreement and such lease is other equity interests or long-term debt securities of or in full force and effectany corporation, firm, partnership, joint venture, association or other entity; (D) each lease to which the Company or any Subsidiary is a party has been duly executed and is legal, valid, binding and enforceable in accordance with its terms against the other parties thereto; (E) no default (or event which with notice or lapse of time, or both, would constitute such a default) by the Company or any Subsidiary has occurred and is continuing or is likely to occur under any of such leases, which would, individually or in the aggregate, constitute a Material Adverse Effect; neither the Company nor the Subsidiaries is aware of any action, suits, claims, demands, investigations, judgment, awards and proceedings of any nature that has been asserted by any person which (a) may be adverse to the rights or interests of the Company and/or the Subsidiaries under such lease, tenancy or license or (b) which may affect the rights of the Company and/or the Subsidiaries to the continued possession or use of such leased or licensed property or other asset; (F) the right of the Company and/or the Subsidiaries to possess or use such leased or licensed property or other asset is not subject to any unusual or onerous terms or conditions, with such exceptions as would not, individually or in the aggregate, materially interfere with the use made or proposed to be made of such property or asset by the Company and/or the relevant Subsidiaries; (G) the use of all properties owned or leased by the Company and/or the Subsidiaries is in accordance with its permitted use under all applicable Laws, and the use of any premises occupied by the Company and/or the Subsidiaries is in accordance with the terms provided for in the lease, tenancy, license, concession or agreement of whatsoever nature relating to such occupation, with such exceptions as would not, individually or in the aggregate, materially interfere with the use made and proposed to be made of such property or asset by the Company or the relevant Subsidiary, as applicable; (H) neither the Company nor any Subsidiary owns, operates, manages or has any other right or interest in any other material real property of any kind except as reflected in the audited consolidated financial statements of the Company as of 31 December 2021 included in each of the Pricing Disclosure Package, the Offering Circular and the Hong Kong Prospectus, and no other real properties are necessary in order for the Company or the Subsidiaries to carry on the businesses of the Company or the Subsidiaries in the manner described in each of the Pricing Disclosure Package, the Offering Circular and the Hong Kong Prospectus other than those real property the absence of which would, individually or in the aggregate, have a Material Adverse Effect;
3.7 the Company has the authorized and issued capital as set forth under the captions “Capitalization and Indebtedness” and “Share Capital” in each of the Pricing Disclosure Package, the Offering Circular and the Hong Kong Prospectus, and all of the issued shares or capital stock of each of the Company members of the Group that is a non-PRC legal person (Abut including any PRC person that is a joint stock limited liability company) have been duly authorized, registered authorised and validly issued, (B) are fully paid up and non-assessable, (C) were not issued in violation of any pre-emptive, resale rights, rights of first refusal or similar rights, (D) conform to the description thereof contained in each of the Pricing Disclosure Package, the Offering Circular and the Hong Kong Prospectus, (E) have been issued in compliance with all applicable Laws and (F) are owned by existing shareholders identified and were not issued in the amounts specified, save for any rights granted under the Company’s pre-IPO financing agreements which will be terminated on the Listing Date, no holder violation of outstanding shares of the Company is and will be entitled to any pre-emptiveemptive right, resale rightsright, rights right of first refusal or other similar rights right and, to acquire the Offer Shares or any other securities of the Company; and there are no outstanding securities convertible into or exchangeable for, or warrants, rights or options to purchase from extent owned by the Company, or obligations of the Company to issue, the Shares or any other class of shares of the Company except pursuant to this Agreement, the International Underwriting Agreement;
3.8 each member of the Group is a legal person with limited liability, and the liability of the Company in respect of equity interests directly or indirectly held by it in such Subsidiary is limited to its investment therein; all the issued shares of, capital stock of or ownership interests in each member of the Group have been duly authorized, registered and validly issued and are fully paid and non-assessable, and are owned by the Company either directlysubject to no Encumbrance or adverse claims; (E) the registered capital (in the form of shares or otherwise) of each of the members of the Group that is a PRC legal person (other than a PRC person that is a joint stock limited liability company) has been duly and validly established, all of such registered capital has been validly issued and fully paid up with all contributions to such registered capital having been paid within the time periods prescribed under applicable PRC Laws and all payments of such contributions having been approved by the applicable PRC Authorities, and no obligation for the payment of a contribution to such registered capital remains outstanding; all of such registered capital has been issued in compliance with all applicable Laws and was not issued in violation of any pre-emptive right, resale right, right of first refusal or indirectly through wholly-similar right and, to the extent owned Subsidiariesby the Company, free is owned by the Company subject to no Encumbrance or adverse claims; (F) except as disclosed in the Hong Kong Prospectus, the Preliminary Offering Circular and clear the PHIP, no options, warrants or other rights to purchase, agreements or other obligations to issue or other rights to convert any obligation into shares of all Encumbrancescapital stock or other equity interests of or in any member of the Group are outstanding; (G) except as disclosed in each of the Hong Kong Prospectus, Preliminary Offering Circular and the PHIP, none of the issued members of the Company’s board of directors or management (where applicable) own, directly or indirectly, any shares of capital stock of, capital stock of or ownership interests in any Subsidiary was issuedequity interest in, or subscribed to, in violation of the pre-emptive or similar rights of any shareholder of such Subsidiary; and there are no outstanding rights, warrants or options to acquire, or instruments or securities convertible into or exchangeable for, any shares of share capital stock of, or direct interest interests in, any member of the Group; and (H) except as disclosed in each of the Hong Kong Prospectus, the Preliminary Offering Circular and the PHIP, there are no outstanding securities issued by the Company convertible into or exchangeable for, rights, warrants or options to acquire from the Company or any other member of the Group or subscribe for, or obligations of the Company or any other member of Group to issue or grant, share capital of or debentures or direct interests in the Company or any Subsidiary;other member of the Group and there is no agreement or commitment outstanding which calls for the allotment, issue or transfer of, or accords to any person the right to call for the allotment or issue of, any shares or debentures in, or other securities of, the Company or any other member of the Group.
2.5 Each member of the Group has been duly incorporated, established, registered or organised and is validly existing as a legal person with limited liability and in good standing under the Laws of the jurisdiction of its incorporation, establishment, registration or organisation, is capable of suing and being sued, with full right, power and authority (corporate and other) to own, use, lease and operate its properties and assets and conduct its business in the manner presently conducted and as described in each of the Hong Kong Prospectus, the Preliminary Offering Circular and the PHIP; each member of the Group is duly qualified to transact business and is in good standing in each jurisdiction where such qualification or good standing is required (by virtue of its business, ownership or leasing of properties or assets or otherwise); the articles of association/by-laws and other constituent or constitutive documents and the business licence (if applicable) of each member of the Group comply with the requirements of the Laws of the jurisdiction of its incorporation, establishment, registration or organisation, and are in full force and effect. Each of the members of the Group that is a PRC person has passed each annual examination by the applicable PRC Authorities without being found to have any deficiency or to be in default under applicable PRC Laws and has timely received all requisite certifications from each applicable PRC Authority.
2.6 No member of the Group is conducting or proposes to conduct any business, or has or proposes to acquire or incur any property or asset or liability or obligation (including, without limitation, contingent liability or obligation), which is material to such member of the Group but which is not directly or indirectly related to the business of such member of the Group or the business of the Group, taken as a whole, as described in each of the Hong Kong Prospectus, the Preliminary Offering Circular and the PHIP.
Appears in 1 contract
Sources: Hong Kong Underwriting Agreement
The Company and the Group. 3.1 each and every (i) Subsidiary and (ii) entity that the Company or any Subsidiary has agreed to acquire pursuant to a contractual obligation existing as of the date hereof has been disclosed in the Pricing Disclosure Package, the Offering Circular and the Hong Kong Prospectus, and the 2.1. The Company has no other associated companies or jointly controlled entities other than those the authorised and issued share capital as set forth in the Pricing Disclosure Package, the Offering Circular and the Hong Kong Prospectus;
3.2 save as disclosed in the Pricing Disclosure Package, the Offering Circular and the Hong Kong Prospectus, none of the Company or the Subsidiaries has conducted, is conducting or proposes to conduct any business, has acquired or proposes to acquire any property or asset or has incurred or proposed to incur any liability or obligation (including, without limitation, contingent liability or obligation), which is material to the Group but which is not directly or indirectly related to the business of the Group, taken as a whole, as described in each of the Pricing Disclosure Package, the Offering Circular and the Hong Kong Prospectus;
3.3 each of the Company and the Subsidiaries has been duly incorporated or established and is validly existing and in good standing under the Laws of the jurisdiction of its incorporation, registration or organization with legal right, power and authority (corporate and other) to own, use, lease and operate its properties and conduct its business in the manner presently conducted and as described in each of the Pricing Disclosure Package, the Offering Circular and the Hong Kong Prospectus, and has been duly qualified to transact business and is in good standing (where applicable) under the Laws of each other jurisdiction in which it owns or leases properties or conducts any business so as to require such qualification, except where failure to be so qualified would not, individually or in the aggregate, have a Material Adverse Effect; the articles of association, the business license and other constituent documents of each of the Company and the Subsidiaries comply with the requirements of the Laws of the jurisdiction of its incorporation, registration or organization and are in full force and effect; each of the Company and the Subsidiaries is capable of suing and being sued in its own name; each of the Subsidiaries that is a PRC entity has passed each annual examination by the applicable PRC Authorities without being found to have any material deficiency or material default under applicable PRC Laws, and has timely received all requisite material certifications from each applicable PRC Authority;
3.4 the Company has been duly registered as a non-Hong Kong company under Part 16 of the Companies Ordinance and the memorandum and articles of association and other constituent or constitutive documents of the Company comply with the Laws of Hong Kong (including the Listing Rules);
3.5 none of the Company or the Subsidiaries has taken any action nor have any steps been taken or legal, legislative or administrative proceedings been started (A) to wind up, make bankrupt, dissolve, deregister, make dormant, or eliminate the Company or any Subsidiary, or (B) to withdraw, revoke or cancel any Approvals and Filings required under any Laws applicable to, or from or with any Authority having jurisdiction over the Company or any of the Subsidiaries or any of their properties or assets, or otherwise from or with any other persons, in order to conduct business or operation of the Company or any Subsidiary, except in each case as described in each of the Pricing Disclosure Package, the Offering Circular and the Hong Kong Prospectus;
3.6 except as disclosed in each of the Pricing Disclosure Package, the Offering Circular and the Hong Kong Prospectus, (A) each of the Company and the Subsidiaries has valid title to all real properties and assets that it purports to own, in each case free and clear of all Encumbrances and defects; (B) each of the Company and the Subsidiaries has valid title to all personal assets and revenue generating assets it purports to own, in each case free and clear of all Encumbrances and defects, except as would not, individually or in the aggregate, materially and adversely affect the value of such property or asset, or would not, individually or in the aggregate, materially interfere with the use made and proposed to be made of such property or asset by the Company or the relevant Subsidiary, as applicable, or would not, individually or in the aggregate, result in a Material Adverse Effect; (C) each real property, building and unit held under lease by the Company or any Subsidiary is held by it under a legal and enforceable agreement and such lease is in full force and effect; (D) each lease to which the Company or any Subsidiary is a party has been duly executed and is legal, valid, binding and enforceable in accordance with its terms against the other parties thereto; (E) no default (or event which with notice or lapse of time, or both, would constitute such a default) by the Company or any Subsidiary has occurred and is continuing or is likely to occur under any of such leases, which would, individually or in the aggregate, constitute a Material Adverse Effect; neither the Company nor the Subsidiaries is aware of any action, suits, claims, demands, investigations, judgment, awards and proceedings of any nature that has been asserted by any person which (a) may be adverse to the rights or interests of the Company and/or the Subsidiaries under such lease, tenancy or license or (b) which may affect the rights of the Company and/or the Subsidiaries to the continued possession or use of such leased or licensed property or other asset; (F) the right of the Company and/or the Subsidiaries to possess or use such leased or licensed property or other asset is not subject to any unusual or onerous terms or conditions, with such exceptions as would not, individually or in the aggregate, materially interfere with the use made or proposed to be made of such property or asset by the Company and/or the relevant Subsidiaries; (G) the use of all properties owned or leased by the Company and/or the Subsidiaries is in accordance with its permitted use under all applicable Laws, and the use of any premises occupied by the Company and/or the Subsidiaries is in accordance with the terms provided for in the lease, tenancy, license, concession or agreement of whatsoever nature relating to such occupation, with such exceptions as would not, individually or in the aggregate, materially interfere with the use made and proposed to be made of such property or asset by the Company or the relevant Subsidiary, as applicable; (H) neither the Company nor any Subsidiary owns, operates, manages or has any other right or interest in any other material real property of any kind except as reflected in the audited consolidated financial statements of the Company as of 31 December 2021 included in each of the Pricing Disclosure Package, the Offering Circular and the Hong Kong Prospectus, and no other real properties are necessary in order for the Company or the Subsidiaries to carry on the businesses of the Company or the Subsidiaries in the manner described in each of the Pricing Disclosure Package, the Offering Circular and the Hong Kong Prospectus other than those real property the absence of which would, individually or in the aggregate, have a Material Adverse Effect;
3.7 the Company has the authorized and issued capital as set forth under the captions “Capitalization and Indebtedness” and “Share Capital” in each of the Pricing Disclosure Package, the Offering Circular and the Hong Kong Prospectus, Preliminary International Prospectus and all of the issued shares of the Company (A) have been duly authorized, registered authorized and validly issued, (B) issued and are fully paid and non-assessable, (C) were not issued in violation of any pre-emptive, resale rights, rights of first refusal or similar rights, (D) assessable and conform to the description thereof contained in each of the Pricing Disclosure PackageHong Kong Prospectus and the Preliminary International Prospectus; and except for USD13,500,000 of the registered capital of BeiGene (Beijing) Co., Ltd.,, USD6,500,000 of the Offering Circular registered capital of BeiGene (Suzhou) Co., Ltd., RMB59,755,385 of the registered capital of BeiGene Biologics Co., Ltd. and RMB450,000,000 of the registered capital of BeiGene Guangzhou Biologics Manufacturing Co., Ltd. which will be required to be paid in accordance with the time limits as set forth in their respective articles of association, all of the issued share capital of each of the other members of the Group has been duly and validly authorized and issued, are fully paid and non-assessable and are owned directly or indirectly by the Company, free and clear of any Encumbrance; except as described in each of the Hong Kong Prospectus, Prospectus and the Preliminary International Prospectus (E) have been including securities issued in compliance with all applicable Laws and (F) are owned by existing shareholders identified and pursuant to an equity incentive plan described in the amounts specifiedHong Kong Prospectus and the Preliminary International Prospectus), save for any rights granted under the Company’s pre-IPO financing agreements which will be terminated on the Listing Date, no holder of outstanding shares of the Company is and will be entitled to any pre-emptive, resale rights, rights of first refusal or other similar rights to acquire the Offer Shares or any other securities of the Company; and there are no outstanding securities convertible into or exchangeable for, or warrants, rights or options to purchase from the Company, or obligations of the Company to issue, the Shares Shares, or any other class of shares share capital of the Company; the Shares, when issued and delivered against payment therefor, may be freely deposited by the Company with the HKSCC; the Shares, when issued and delivered against payment therefor, will be freely transferable by the Company to or for the account of the several Underwriters and the initial purchasers thereof; and there are no restrictions on subsequent transfers of the Shares under the laws of the PRC, Hong Kong, Cayman Islands or United States, except as described in the Hong Kong Prospectus and the Preliminary International Prospectus.
2.2. The Company has been duly incorporated and is validly existing as a corporation in good standing under the laws of its jurisdiction of incorporation, with power and authority (corporate and other) to own, lease and operate its properties and conduct its business as described in the Hong Kong Prospectus and the Preliminary International Prospectus, and has been duly qualified as a foreign corporation for the transaction of business and is in good standing under the laws of each other jurisdiction in which it owns or leases properties or conducts any business so as to require such qualification, or is subject to no material liability or disability by reason of the failure to be so qualified in any such jurisdiction. Each subsidiary of the Company except pursuant has been duly incorporated or organized and is validly existing and in good standing under the laws of its jurisdiction of incorporation or organization, with power and authority (corporate and other) to this Agreementown, lease and operate its properties and conduct its business as described in the Hong Kong Prospectus and the Preliminary International Prospectus, and has been duly qualified as a foreign corporation for the transaction of business and is in good standing under the laws of each other jurisdiction in which it owns or leases properties or conducts any business so as to require such qualification, or is subject to no material liability or disability by reason of the failure to be so qualified in any such jurisdiction. None of the Company or any other member of the Group nor any person acting on behalf of any of them has taken any action, nor have any steps been taken or any actions, suits or proceedings under any Laws been started or threatened, to wind up, liquidate, dissolve, make dormant or eliminate the Company or any other member of the Group.
2.3. Each of the Company and any other member of the Group that were incorporated outside of the PRC has taken, or is in the process of taking, if applicable, reasonable steps to comply with, and to ensure compliance by each of its shareholders, option holders, directors, officers and employees that is, or is directly or indirectly owned or controlled by, a PRC resident or citizen with any applicable rules and regulations of the relevant PRC government agencies (including but not limited to the Ministry of Commerce, the National Development and Reform Commission and the State Administration of Foreign Exchange) relating to overseas investment by PRC residents and citizens or the repatriation of the proceeds from overseas offering and listing by offshore special purpose vehicles controlled directly or indirectly by PRC companies and individuals (the “PRC Overseas Investment and Listing Regulations”), including without limitation, requesting each shareholder, option holder, director, officer and employee that is, or is directly or indirectly owned or controlled by, a PRC resident or citizen to complete any registration and other procedures required under applicable PRC Overseas Investment and Listing Regulations.
2.4. Each of the Company and each of the Company’s directors that signed the U.S. Registration Statement is aware of and has been advised as to, the content of the M&A Rules, in particular the relevant provisions thereof which purport to require offshore special purpose vehicles, or SPVs, formed for listing purposes and controlled directly or indirectly by PRC companies or individuals, to obtain the approval of the CSRC prior to the listing and trading of their securities on an overseas stock exchange; the Company has received legal advice specifically with respect to the M&A Rules from its PRC counsel and the Company understands such legal advice; and the Company has fully communicated such legal advice from its PRC counsel to each of its directors that signed the U.S. Registration Statement and each director has confirmed that he or she understands such legal advice.
2.5. Each of the Company and its subsidiaries has obtained or made and hold and are in compliance with all Approvals and Filings under any Laws applicable to, or from or with any Authority having jurisdiction over the Company and its subsidiaries required in order to own, lease, license and use its properties, assets and conduct its business in the manner described in the Hong Kong Prospectus and the Preliminary International Underwriting Agreement;
3.8 each Prospectus, except where the failure to obtain such Approvals and Filings would not be reasonably expected to have a Material Adverse Effect, and such Approvals and Filings contain no material restrictions or conditions not described in the Hong Kong Prospectus and the Preliminary International Prospectus; no member of the Group is a legal person with limited liabilityaware that any Authority is considering revoking, suspending or modifying, any such Approvals and Filings; and the liability of the Company in respect of equity interests directly or indirectly held by it in such Subsidiary is limited to its investment therein; all the issued shares of, capital stock of or ownership interests in each and any other member of the Group have been duly authorizedare in compliance with the provisions of all such Approvals and Filings.
(A) The Company has no subsidiaries other than those as set forth in the section of each of the Hong Kong Prospectus and the Preliminary International Prospectus; and (B) except as disclosed in each of the Hong Kong Prospectus and the Preliminary International Prospectus, registered and validly issued and are fully paid and non-assessable, and are owned by the Company either directly, or indirectly through wholly-owned Subsidiaries, free and clear of owns all Encumbrances; none of the issued shares of, or registered share capital stock or other equity interests of or ownership interests in any Subsidiary was issued, or subscribed to, in violation each of the pre-emptive or similar rights other members of any shareholder of such Subsidiary; and there are no outstanding rights, warrants or options to acquire, or instruments convertible into or exchangeable for, any shares of capital stock of, or direct interest the Group.
2.7. Except as described in the Hong Kong Prospectus and the Preliminary International Prospectus, the Company has not sold, issued or distributed any Subsidiary;Shares during the six-month period preceding the date hereof, including any sales pursuant to Rule 144A, Regulation D or Regulation S promulgated under the Securities Act, other than shares issued pursuant to employee benefit plans, qualified share option plans or other employee compensation plans or pursuant to outstanding options, rights or warrants.
Appears in 1 contract
The Company and the Group. 3.1 each and every (i) Subsidiary and (ii) entity that the Company or any Subsidiary has agreed to acquire pursuant to a contractual obligation existing as 2.1 As of the date hereof of this Agreement, the Company has been disclosed the authorized and issued share capital as set forth in the section of each of the Hong Kong Prospectus, the Registration Statement, the Pricing Disclosure Package, the Offering Circular Prospectus, the Application Proof and the PHIP, and all of the issued shares of the Company (A) have been duly authorized and validly issued and are fully paid and non-assessable, (B) have been issued in compliance with all applicable Laws, (C) were not issued in violation of any preemptive right, resale right, right of first refusal or similar right, (D) are owned by the existing shareholders and in the amounts specified in each of the Hong Kong Prospectus, and the Company has no other associated companies or jointly controlled entities other than those as set forth in Registration Statement, the Pricing Disclosure Package, the Offering Circular Prospectus, the Application Proof and the PHIP, (E) conform to their description contained in each of the Hong Kong Prospectus;
3.2 save as disclosed in , the Registration Statement, the Pricing Disclosure Package, the Offering Circular Prospectus, the Application Proof and the PHIP, and (E) except as disclosed in the Hong Kong Prospectus, none of the Company or the Subsidiaries has conductedRegistration Statement, is conducting or proposes to conduct any business, has acquired or proposes to acquire any property or asset or has incurred or proposed to incur any liability or obligation (including, without limitation, contingent liability or obligation), which is material to the Group but which is not directly or indirectly related to the business of the Group, taken as a whole, as described in each of the Pricing Disclosure Package, the Offering Circular Prospectus, the Application Proof and the Hong Kong Prospectus;PHIP, are not subject to any Encumbrance or adverse claims.
3.3 each 2.2 Each of the Company and the Subsidiaries other members of the Group (i) has been duly incorporated or established incorporated, organized and is validly existing and in good standing (or in similar concept) under the Laws laws of the its jurisdiction of its incorporationincorporation or organization, registration or organization with legal right, power and authority (corporate and other) to own, use, lease and operate its properties and conduct its business in the manner presently conducted and as described in each of the Hong Kong Prospectus, the Registration Statement, the Pricing Disclosure Package, the Offering Circular Prospectus, the Application Proof and the Hong Kong ProspectusPHIP, and has been (ii) is duly qualified as a foreign corporation to transact business and is in good standing (where applicable) under the Laws of in each other jurisdiction in which it owns or leases properties or conducts any business so as to require and in which such qualificationqualification is required except, except in the case of this clause (ii), where the failure to be so qualified or in good standing would not, individually or in the aggregate, have a Material Adverse Effect; the . The currently effective memorandum and articles of association, the business license and association or other constituent constitutional or organizational documents of each of the Company and the Subsidiaries other members of the Group comply with the requirements of the applicable Laws of the in jurisdiction of its incorporation, registration their incorporation or organization and are in full force and effect; each of the Company and the Subsidiaries is capable of suing and being sued in its own name; each of the Subsidiaries that is a PRC entity has passed each annual examination by the applicable PRC Authorities without being found to have any material deficiency or material default under applicable PRC Laws, and has timely received all requisite material certifications from each applicable PRC Authority;
3.4 the Company has been duly registered as a non-Hong Kong company under Part 16 of the Companies Ordinance and the memorandum and articles Articles of association Association and other constituent or constitutive documents and the business license of the Company comply with the Laws of Hong Kong (including including, without limitation, the Listing Rules);) where applicable.
3.5 none of the Company or the Subsidiaries has taken any action nor have any steps been taken or legal, legislative or administrative proceedings been started 2.3 (A) to wind up, make bankrupt, dissolve, deregister, make dormant, or eliminate The Company has no principal subsidiaries other than those as set forth in the Company or any Subsidiary, or (B) to withdraw, revoke or cancel any Approvals and Filings required under any Laws applicable to, or from or with any Authority having jurisdiction over the Company or any section of the Subsidiaries or any of their properties or assets, or otherwise from or with any other persons, in order to conduct business or operation of the Company or any Subsidiary, except in each case as described in each of the Pricing Disclosure Package, the Offering Circular and the Hong Kong Prospectus;
3.6 except as disclosed in each of the Pricing Disclosure Package, the Offering Circular and the Hong Kong Prospectus, (A) each of the Company Application Proof and the Subsidiaries has valid title to all real properties and assets that it purports to own, in each case free and clear of all Encumbrances and defectsPHIP headed “Appendix I – Accountants’ Report”; (B) each of the Company and the Subsidiaries has valid title to all personal assets and revenue generating assets it purports to own, in each case free and clear of all Encumbrances and defects, except as would not, individually or disclosed in the aggregate, materially and adversely affect the value of such property or asset, or would not, individually or in the aggregate, materially interfere with the use made and proposed to be made of such property or asset by the Company or the relevant Subsidiary, as applicable, or would not, individually or in the aggregate, result in a Material Adverse Effect; (C) each real property, building and unit held under lease by the Company or any Subsidiary is held by it under a legal and enforceable agreement and such lease is in full force and effect; (D) each lease to which the Company or any Subsidiary is a party has been duly executed and is legal, valid, binding and enforceable in accordance with its terms against the other parties thereto; (E) no default (or event which with notice or lapse of time, or both, would constitute such a default) by the Company or any Subsidiary has occurred and is continuing or is likely to occur under any of such leases, which would, individually or in the aggregate, constitute a Material Adverse Effect; neither the Company nor the Subsidiaries is aware of any action, suits, claims, demands, investigations, judgment, awards and proceedings of any nature that has been asserted by any person which (a) may be adverse to the rights or interests of the Company and/or the Subsidiaries under such lease, tenancy or license or (b) which may affect the rights of the Company and/or the Subsidiaries to the continued possession or use of such leased or licensed property or other asset; (F) the right of the Company and/or the Subsidiaries to possess or use such leased or licensed property or other asset is not subject to any unusual or onerous terms or conditions, with such exceptions as would not, individually or in the aggregate, materially interfere with the use made or proposed to be made of such property or asset by the Company and/or the relevant Subsidiaries; (G) the use of all properties owned or leased by the Company and/or the Subsidiaries is in accordance with its permitted use under all applicable Laws, and the use of any premises occupied by the Company and/or the Subsidiaries is in accordance with the terms provided for in the lease, tenancy, license, concession or agreement of whatsoever nature relating to such occupation, with such exceptions as would not, individually or in the aggregate, materially interfere with the use made and proposed to be made of such property or asset by the Company or the relevant Subsidiary, as applicable; (H) neither the Company nor any Subsidiary owns, operates, manages or has any other right or interest in any other material real property of any kind except as reflected in the audited consolidated financial statements of the Company as of 31 December 2021 included in each of the Pricing Disclosure Package, the Offering Circular and the Hong Kong Prospectus, the Application Proof, the PHIP, the Registration Statement, the Pricing Disclosure Package and no other real properties are necessary in order for the Prospectus, the Company or the Subsidiaries to carry on the businesses owns all of the Company issued or the Subsidiaries in the manner described registered share capital or other equity interests of or in each of the Pricing Disclosure Package, other members of the Offering Circular and the Hong Kong Prospectus Group; (C) other than those real property the absence share capital or other equity interests of which would, individually or in the aggregateother members of the Group, have a Material Adverse Effect;
3.7 the Company has the authorized and issued does not own, directly or indirectly, any share capital as set forth under the captions “Capitalization and Indebtedness” and “Share Capital” or any other equity interests or long-term debt securities of or in each of the Pricing Disclosure Packageany corporation, the Offering Circular and the Hong Kong Prospectusfirm, and partnership, joint venture, association or other entity; (D) all of the issued shares of each of the Company members of the Group (Aother than a PRC person) have been duly authorized, registered authorized and validly issued, (B) are fully paid up and non-assessable, (C) were not issued in violation of any pre-emptive, resale rights, rights of first refusal or similar rights, (D) conform to the description thereof contained in each of the Pricing Disclosure Package, the Offering Circular and the Hong Kong Prospectus, (E) have been issued in compliance with all applicable Laws and (F) were not subject to any preemptive right, resale right, right of first refusal or similar right and are owned by existing shareholders identified and in the amounts specified, save for any rights granted under Company (except as to the Company’s pre-IPO financing agreements which will be terminated on the Listing Date, no holder of outstanding issued shares of the Company Company) subject to no Encumbrance or adverse claim, unless otherwise disclosed in each of the Hong Kong Prospectus, the Registration Statement, the Pricing Disclosure Package, the Prospectus, the Application Proof and the PHIP; (E) the registered capital (in the form of shares or otherwise) of each of the members of the Group that is a PRC person has been duly established, validly issued and will be entitled fully paid up with all contributions to such registered capital having been paid within the time periods in accordance with applicable PRC Laws and all payments of such contributions having been approved by the applicable PRC Authorities, and no obligation for the payment of a contribution to such registered capital remains outstanding; all of such registered capital has been issued in compliance with all applicable Laws and was not subject to any pre-emptiveemptive right, resale rightsright, rights right of first refusal or other similar rights right and is owned by the Company subject to acquire the Offer Shares no Encumbrance or any other securities adverse claims, unless otherwise disclosed in each of the CompanyHong Kong Prospectus, the Registration Statement, the Pricing Disclosure Package, the Prospectus, the Application Proof and the PHIP; and there are no outstanding securities convertible into or exchangeable for, or warrants, rights or options to purchase from the Company, or obligations (F) each of the Company to issue, the Shares or any other class of shares members of the Company except pursuant to this Agreement, the International Underwriting Agreement;
3.8 Group and each member associate of the Group is a legal person with limited liability, and the liability of the Company in respect of equity interests directly held in each such member or indirectly held by it in such Subsidiary associate of the Group is limited to its investment therein; all (G) except as disclosed in the issued shares ofHong Kong Prospectus, capital stock of or ownership interests in each member of the Group have been duly authorizedApplication Proof, registered the PHIP, the Registration Statement, the Pricing Disclosure Package and validly issued and are fully paid and non-assessablethe Prospectus, and are owned by the Company either directly, or indirectly through wholly-owned Subsidiaries, free and clear of all Encumbrances; none of the issued members of the Company’s board of directors or management owns, directly or indirectly, any shares of capital stock of, capital stock of or ownership interests in any Subsidiary was issuedequity interest in, or subscribed to, in violation of the pre-emptive or similar rights of any shareholder of such Subsidiary; and there are no outstanding rights, warrants or options to acquire, or instruments or securities convertible into or exchangeable for, any shares of share capital stock of, or direct interest interests in, any member of the Group; and (H) there are no outstanding securities convertible into or exchangeable for, rights, warrants or options to acquire from the Company or any other member of the Group or subscribe for, or obligations of the Company or any other member of the Group to issue or grant, share capital of or debentures or direct interests in the Company or any Subsidiary;other member of the Group, and there is no contract, agreement, commitment, understanding or arrangement of any kind outstanding which calls for the allotment, issue or transfer of, or accords to any person the right to call for the allotment or issue of, any shares or debentures in, or other securities of, the Company or any other member of the Group.
Appears in 1 contract
Sources: Hong Kong Underwriting Agreement (MINISO Group Holding LTD)
The Company and the Group. 3.1 each and every (i) Subsidiary and (ii) entity that the Company or any Subsidiary has agreed to acquire pursuant to a contractual obligation existing as of the date hereof has been disclosed in the Pricing Disclosure Package, the Offering Circular and the Hong Kong Prospectus, and the Company has no other associated companies or jointly controlled entities other than those as set forth in the Pricing Disclosure Package, the Offering Circular and the Hong Kong Prospectus;
3.2 save as disclosed in the Pricing Disclosure Package, the Offering Circular and the Hong Kong Prospectus, none of the Company Company, or the Subsidiaries has conducted, is conducting or proposes to conduct any business, has acquired or proposes to acquire any property or asset or has incurred or proposed to incur any liability or obligation (including, without limitation, contingent liability or obligation), which is material to the Group but which is not directly or indirectly related to the business of the Group, taken as a whole, as described in each of the Pricing Disclosure Package, the Offering Circular and the Hong Kong Prospectus;
3.3 each of the Company and the Subsidiaries has been duly incorporated or established and is validly existing and in good standing under the Laws of the jurisdiction of its incorporation, registration or organization organisation with legal right, power and authority (corporate and other) to own, use, lease and operate its properties and conduct its business in the manner presently conducted and as described in each of the Pricing Disclosure Package, the Offering Circular and the Hong Kong Prospectus, and has been duly qualified to transact business and is in good standing (where applicable) under the Laws of each other jurisdiction in which it owns or leases properties or conducts any business so as to require such qualification, except where failure to be so qualified would not, individually or in the aggregate, have a Material Adverse Effect; the articles of association, the business license and other constituent documents of each of the Company and the Subsidiaries comply with the requirements of the Laws of the jurisdiction of its incorporation, registration or organization organisation and are in full force and effect; each of the Company and the Subsidiaries is capable of suing and being sued in its own name; each of the Company and the Subsidiaries that is a have been established in the PRC entity has passed each annual examination by the applicable PRC Authorities without being found to have any material deficiency or material default under applicable PRC Laws, and has timely received all requisite material certifications from each applicable PRC Authority;
3.4 the Company has been duly registered as a non-Hong Kong company under Part 16 of the Companies Ordinance and the memorandum and articles of association and other constituent or constitutive documents of the Company comply with the Laws of Hong Kong (including the Listing Rules);
3.5 none of the Company or Company, the Subsidiaries and the Controlling Shareholders, has taken any action nor have any steps been taken or legal, legislative or administrative proceedings been started or, to the knowledge of the Company and the Controlling Shareholders, been threatened or judgement been rendered to declare (A) to wind up, make bankrupt, dissolve, deregister, make dormant, or eliminate the Company or any Subsidiarythe Subsidiaries, or (B) to withdraw, revoke or cancel any Approvals and Filings required under any Laws applicable to, or from or with any Authority having jurisdiction over the Company or any of the Subsidiaries or any of their properties or assets, or otherwise from or with any other persons, in order to conduct business or operation of the Company or any Subsidiarythe Subsidiaries, except in each case as described in each of the Pricing Disclosure Package, the Offering Circular and the Hong Kong Prospectus;
3.6 except as disclosed in each of the Pricing Disclosure Package, the Offering Circular and the Hong Kong Prospectus, (A) each of the Company and the Subsidiaries has valid title to all real properties and assets that it purports to own, in each case free and clear of all Encumbrances and defects; (B) each of the Company and the Subsidiaries has valid title to all personal assets and revenue generating assets it purports to own, in each case free and clear of all Encumbrances and defects, except as would not, individually or in the aggregate, materially and adversely affect the value of such property or asset, or would not, individually or in the aggregate, materially interfere with the use made and proposed to be made of such property or asset by the Company or the relevant Subsidiary, as applicable, or would not, individually or in the aggregate, result in a Material Adverse Effect; (C) each real property, building and unit held under lease by the Company or any Subsidiary the Subsidiaries is held by it under a legal and enforceable agreement and such lease is in full force and effect; (D) each lease to which the Company or any Subsidiary of the Subsidiaries is a party has been duly executed and is legal, valid, binding and enforceable in accordance with its terms against the other parties thereto; (E) no default (or event which with notice or lapse of time, or both, would constitute such a default) by the Company or any Subsidiary the Subsidiaries has occurred and is continuing or is likely to occur under any of such leases, which would, individually or in the aggregate, constitute a Material Adverse Effect; neither the Company nor the Subsidiaries is aware of any action, suits, claims, demands, investigations, judgment, awards and proceedings of any nature that has been asserted by any person which (a) may be adverse to the rights or interests of the Company and/or the Subsidiaries under such lease, tenancy or license or (b) which may affect the rights of the Company and/or the Subsidiaries to the continued possession or use of such leased or licensed property or other asset; (F) the right of the Company and/or the Subsidiaries to possess or use such leased or licensed property or other asset is not subject to any unusual or onerous terms or conditions, conditions with such exceptions as would not, individually or in the aggregate, materially interfere with the use made or and proposed to be made of such property or asset by the Company and/or the relevant Subsidiaries, as applicable ; (G) the use of all properties owned or leased by the Company and/or the Subsidiaries is in accordance with its permitted use under all applicable Laws, and the use of any premises occupied by the Company and/or the Subsidiaries is in accordance with the terms provided for in the lease, tenancy, license, concession or agreement of whatsoever nature relating to such occupation, with such exceptions as would not, individually or in the aggregate, materially interfere with the use made and proposed to be made of such property or asset by the Company or the relevant Subsidiary, as applicable; (H) neither the Company nor any Subsidiary the Subsidiaries owns, operates, manages or has any other right or interest in any other material real property of any kind except as reflected in the audited consolidated financial statements of the Company as of 31 December 2021 30 June 2022 included in each of the Pricing Disclosure Package, the Offering Circular and the Hong Kong Prospectus, and no other real properties and personal properties or assets are necessary in order for the Company or the Subsidiaries to carry on the businesses of the Company or the Subsidiaries in the manner described in each of the Pricing Disclosure Package, the Offering Circular and the Hong Kong Prospectus other than those real property the absence of which would, individually or in the aggregate, have a Material Adverse Effect;
3.7 the Company has the authorized authorised and issued capital as set forth under the captions “Capitalization and Indebtednessof Our Company” and “Share Capital” in each of the Pricing Disclosure Package, the Offering Circular and the Hong Kong Prospectus, and all of the issued shares of the Company (A) have been duly authorizedauthorised, registered and validly issued, (B) are fully paid and non-assessable, (C) were not issued in violation of any pre-emptive, resale rights, rights of first refusal or similar rights, (D) conform to the description thereof contained in each of the Pricing Disclosure Package, the Offering Circular and the Hong Kong Prospectus, (E) have been issued in compliance with all applicable Laws and (F) are owned by existing shareholders identified and in the amounts specified, save for any rights granted under the Company’s pre-IPO financing agreements which will be terminated on the Listing Date, no holder of outstanding shares of the Company is and will be entitled to any pre-emptive, resale rights, rights of first refusal or other similar rights to acquire the Offer Shares or any other securities of the Company; and there are no outstanding securities convertible into or exchangeable for, or warrants, rights or options to purchase from the Company, or obligations of the Company to issue, the Shares or any other class of shares of the Company except pursuant to this Agreement, the International Underwriting Agreement;
3.8 each member of the Group is a legal person with limited liability, and the liability of the Company in respect of equity interests directly or indirectly held by it in such Subsidiary is limited to its investment therein; all the issued shares of, capital stock of or ownership interests in each member of the Group have been duly authorized, registered and validly issued and are fully paid and non-assessable, and are owned by the Company either directly, or indirectly through wholly-owned Subsidiaries, free and clear of all Encumbrances; none of the issued shares of, capital stock of or ownership interests in any Subsidiary was issued, or subscribed to, in violation of the pre-emptive or similar rights of any shareholder of such Subsidiary; and there are no outstanding rights, warrants or options to acquire, or instruments convertible into or exchangeable for, any shares of capital stock of, or direct interest in the Company or any Subsidiary;,
Appears in 1 contract
Sources: Hong Kong Underwriting Agreement