REPRESENTATIONS, WARRANTIES AND UNDERTAKINGS. 3.1 Grantors jointly and severally make the following representations and warranties: 3.1.1 On the date of signing this Agreement and each Delivery Date, Grantors have the powers, rights, authority and ability to sign and deliver this Agreement and any share transfer agreement (hereinafter referred to as “Transfer Agreement”) signed by them as a party thereto for each share transfer according to this Agreement and to perform their obligations under this Agreement and any Transfer Agreement. This Agreement and any Transfer Agreement to which they are a party shall constitute their legal, effective and binding obligations that are enforceable on them according to the provisions thereof once signed. 3.1.2 No signing and delivery of this Agreement or any Transfer Agreement and no performance by Grantors of their obligations under this Agreement or any Transfer Agreement shall (i) result in any violation of any relevant laws and regulations of the PRC; (ii) conflict with the articles of association or other organizational documents; (iii) result in any breach of any binding agreements or instruments to which they are a party or constitute any breach of contract under any binding agreements or instruments to which they are a party; (iv) result in any breach of any licenses or approvals issued by the relevant competent government departments to them; or (v) cause any licenses or approvals issued by the relevant competent government departments to them to be suspended or revoked or attached with any conditions; 3.1.3 There is no suit, arbitration or other judicial or administrative proceedings that are pending or may have a substantial impact on the performance of this Agreement or any Transfer Agreement. 3.1.4 Grantors have good and marketable ownership of all shares of Party C. There are no pledges, liabilities and other third party encumbrances on Party C’s shares held by Grantors other than the pledge under the Equity Pledge Agreement. 3.1.5 Grantors have disclosed to Party A all circumstances that may have a material adverse effect on the performance of this Agreement. 3.1.6 The option granted by Grantors to Party A is exclusive, and Grantors have not otherwise granted any third party any other options or similar rights before or when granting the option to Party A. 3.2 Grantors jointly and severally make the following undertakings: 3.2.1 Within the term of this Agreement, Grantors will not create any pledges, liabilities and any other third party encumbrances on Party C’s shares held by them other than those under the Equity Pledge Agreement separately signed by Grantors and Party A nor transfer, donate or otherwise dispose of any shares held by them to any third party other than the Parties to this Agreement. 3.2.2 Within the term of this Agreement, Grantors will not otherwise grant any other options or similar rights to any third party. 3.2.3 Within the term of this Agreement, Grantors will cause and ensure that the business carried out by Party C conforms to the applicable laws, regulations, rules and other management regulations and documents issued by the competent government departments and that there are no breach of the above provisions that results in a major adverse impact on the business or assets of the company. 3.2.4 Grantors will maintain the valid existence of Party C in accordance with good financial and commercial standards and practices, operate their business and deal with affairs in a prudent and efficient manner, use their best efforts to obtain and maintain any permits, licenses and approvals necessary for Party C’s continuous operation and ensure that any such permits, licenses and approvals will not be canceled, withdrawn or declared null and void. 3.2.5 Grantors will provide Party A with all Party C’s operation and financial information at Party A’s request. 3.2.6 Except as expressly agreed by Party A (or its designated third party) in writing, before Party A (or its designated third party) exercises its option and obtains all of Party C’s shares or assets, Grantors shall not jointly or individually: (a) Supplement or modify Party C’s constitutional documents in any form, and such supplements, alterations or modifications will have substantial adverse effects on any assets, responsibilities, operation, shares and other legal rights of Party C (excluding the same proportion of capital increase for the purpose of meeting the legal requirements) or may affect the effective performance of this Agreement and other agreements signed by Party A, Grantors and Party C. (b) Cause Party C to enter into or do any transactions or acts (excluding those that arise in the ordinary or daily business course or have been disclosed to and agreed by Party A expressly in writing in advance) that will have materially adverse effects on its assets, liabilities, operation, shares and other legitimate rights. (c) Cause any resolutions on the distribution of dividends or bonuses to be adopted at the shareholders’ meeting of Party C. (d) Sell, assign, mortgage or otherwise dispose of any legal or beneficial interests on Party C’s shares or allow to create any other security interests thereon at any time from the effective date of this Agreement. (e) Cause any sales, transfer, mortgage or otherwise disposal of any legal or beneficial interests on shares to be approved at the shareholders’ meeting of Party C, or allow to create any other security interests thereon, or adopt a shareholder resolution on the increase or decrease of Party C’s registered capital or otherwise modify the structure of the registered capital. (f) Cause any merger or association of Party C with any persons to be approved at the shareholders’ meeting of Party C, or acquire investments from any persons or make an investment to any persons, or carry out reorganization in any other form. (g) Cause any winding-up, liquidation or dissolution and other matters of Party C to be approved at the shareholders’ meeting of Party C. 3.2.7 Before Party A (or its designated third party) exercises its option and obtains all of Party C’s shares or assets, Grantors undertake that: (a) They will forthwith notify Party A in writing of any suits, arbitration or administrative proceedings that have arisen or may arise in relation to the shares owned by them or of any circumstances that may have any adverse effect on such shares. (b) They will cause the shareholders’ meeting of Party C to examine and approve the transfer of the purchased shares as specified in this Agreement, cause Party C to amend its articles of association so as to reflect any changes of Party C’s shares after Party A and/or its designated third party exercises the option according to this Agreement and other changes as set forth herein and immediately apply to the authorities of the PRC for approval (if required by law) and change of registration, and cause the shareholders’ meeting of Party C to approve and appoint such persons as designated by Party A and/or its designated third party as Party C’s director and legal representative (if necessary). (c) Before Party A and/or its designated third party exercises the option, they will enter into all necessary or appropriate documents, take all necessary or appropriate actions and make all necessary or appropriate accusations or make all necessary and appropriate defenses for all claims in order to maintain their lawful and effective ownership over the appropriate shares. (d) Upon Party A’s request at any time, they will unconditionally transfer their shares to Party A and/or its designated third party at the time specified by Party A and waive their right of first refusal against any other shareholders of Party C in respect of the above transfer of shares by them according to Party A’s instructions. (e) They will strictly abide by this Agreement and other agreements jointly or severally entered into by and between Grantors and Party A, conscientiously perform their obligations under such agreements and will not do any acts/omissions that are likely to affect the validity and enforceability of such agreements. 3.3 Party C and Grantors hereby jointly and severally make the following representations, warranties and undertakings to Party A: 3.3.1 Except as agreed by Party A (or its designated third party) in writing, before Party A (or its designated third party) exercises its option and obtains all of Party C’s shares or interests, Party C shall not: (a) Sell, assign, mortgage or otherwise dispose of any assets, business or incomes or allow to create any other security interests thereon (excluding those that arise in the ordinary or daily business course or have been disclosed to and agreed by Party A expressly in writing in advance); (b) Enter into any transactions (excluding those that arise in the ordinary or daily business course or have been disclosed to and agreed by Party A expressly in writing in advance) that will or may have materially adverse effects on its assets, liabilities, operation, shares and other legitimate rights; (c) Distribute any dividends or bonuses to each shareholder in any form; (d) Incur, inherit, guarantee or allow the existence of any debts other than (i) any debts that arise in the ordinary or daily business course rather than by borrowing, and (ii) any debts that have been disclosed to and agreed by Party A expressly in writing in advance; (e) Sign any significant contracts other than those signed in the ordinary business course (for the purpose of this Article, if the amount under a contract is more than RMB50,000, such contract shall be deemed to be a significant contract); (f) Adopt a shareholder resolution on the increase or decrease of Party C’s registered capital or otherwise modify the structure of the registered capital; (g) Supplement, modify or amend Party C’s articles of association in any form; and (h) Enter into merge or association with any persons, or acquire investments from any persons or make an investment to any persons. 3.3.2 On the date of signing this Agreement and each Delivery Date, Party C has no outstanding debts other than (i) any debts arising in its ordinary business course; and (ii) any debts that have been disclosed to and agreed by Party A expressly in writing in advance. 3.3.3 On the date of signing this Agreement and each Delivery Date, there is no suit, arbitration or administrative proceedings that are ongoing or may occur in relation to the shares, Party C’s assets or that may have a substantial impact on the performance of this Agreement by Party C other than those that have been disclosed to and agreed by Party A expressly in writing in advance. 3.3.4 Party C has not been declared bankrupt. 3.3.5 Party C hereby undertakes to Party A that it will comply with all laws and regulations applicable to the acquisition of shares and assets within the term of this Agreement, bear all expenses arising out of the share transfer and handle all procedures necessary for enabling Party A or its designated third party to become Party C’s shareholder, including but not limited to assisting Party A in obtaining any necessary approvals in relation to the share transfer from the approval authorities, submitting the relevant applications required for handling the share change registration to the competent administrative department of industry and commerce and amending the register of shareholders.
Appears in 12 contracts
Samples: Option Agreement (Sunlands Technology Group), Option Agreement (Sunlands Technology Group), Option Agreement (Sunlands Technology Group)
REPRESENTATIONS, WARRANTIES AND UNDERTAKINGS. 3.1 Grantors jointly 2.1 Party B hereby represents, warrants and severally make the following representations and warrantiesundertakes that:
3.1.1 On (1) Party B is the date only lawful holder of signing this Agreement the Transferred Equity Interest and each Delivery Datehas the power and right to execute, Grantors have the powers, rights, authority and ability to sign and deliver this Agreement and any share transfer agreement (hereinafter referred to as “Transfer Agreement”) signed by them as a party thereto for each share transfer according to this Agreement and to perform their the obligations under this Agreement and any Transfer Agreementhereunder. This Agreement will legally and any Transfer Agreement to which they are a party shall constitute their legal, effective validly bind Party B and binding obligations that are is enforceable on them according to the provisions thereof once signed.its provisions;
3.1.2 No signing and delivery (2) Party B has not sold, transferred, pledged or otherwise disposed of this Agreement or any Transfer Agreement and no performance by Grantors of their obligations under this Agreement or any Transfer Agreement shall (i) result in any violation of any relevant laws and regulations of the PRC; (ii) conflict with the articles of association its equity interests or other organizational documents; (iii) result interests in any breach of any binding agreements Party D, or instruments to which they are a party or constitute any breach of contract under any binding agreements or instruments to which they are a party; (iv) result in any breach of any licenses or approvals issued by permitted setting up encumbrances thereon except the relevant competent government departments to them; or (v) cause any licenses or approvals issued by the relevant competent government departments to them to be suspended or revoked or attached with any conditions;
3.1.3 There is no suit, arbitration or other judicial or administrative proceedings that are pending or may have a substantial impact on the performance of this Agreement or any Transfer Agreement.
3.1.4 Grantors have good and marketable ownership of all shares of Party C. There are no pledges, liabilities equity interest pledge and other third party encumbrances on rights setting up for the interest of Party C’s shares held by Grantors other than A;
(3) Party B has not violated any of its obligations of any of the pledge under Original Loan Agreement, the Equity Interest Pledge Agreement.
3.1.5 Grantors have disclosed to Party A all circumstances that may have a material adverse effect on the performance of this Agreement.
3.1.6 The option granted by Grantors to Party A is exclusive, Agreement and Grantors have not otherwise granted any third party any other options or similar rights before or when granting the option to Party A.
3.2 Grantors jointly and severally make the following undertakings:
3.2.1 Within the term of this Agreement, Grantors will not create any pledges, liabilities and any other third party encumbrances on Party C’s shares held by them other than those under the Equity Pledge Agreement separately signed by Grantors and Party A nor transfer, donate or otherwise dispose of any shares held by them to any third party other than the Parties to this Interest Purchase Agreement.
3.2.2 Within the term of this Agreement, Grantors will not otherwise grant any other options or similar rights to any third party.
3.2.3 Within the term of this Agreement, Grantors will cause and ensure that the business carried out by Party C conforms to the applicable laws, regulations, rules and other management regulations and documents issued by the competent government departments and that there are no breach of the above provisions that results in a major adverse impact on the business or assets of the company.
3.2.4 Grantors will maintain the valid existence of Party C in accordance with good financial and commercial standards and practices, operate their business and deal with affairs in a prudent and efficient manner, use their best efforts to obtain and maintain any permits, licenses and approvals necessary for Party C’s continuous operation and ensure that any such permits, licenses and approvals will not be canceled, withdrawn or declared null and void.
3.2.5 Grantors will provide Party A with all Party C’s operation and financial information at Party A’s request.
3.2.6 Except as expressly agreed by Party A (or its designated third party) in writing, before Party A (or its designated third party) exercises its option and obtains all of Party C’s shares or assets, Grantors shall not jointly or individually:;
(a4) Supplement or modify Party C’s constitutional documents in any form, and such supplements, alterations or modifications will have substantial adverse effects on any assets, responsibilities, operation, shares and other legal rights of Party C (excluding the same proportion of capital increase for the purpose of meeting the legal requirements) or may affect the effective performance of this Agreement and other agreements signed by Party A, Grantors and Party C.
(b) Cause Party C B agrees to enter into or do any transactions or acts (excluding those that arise in the ordinary or daily business course or have been disclosed to and agreed by Party A expressly in writing in advance) that will have materially adverse effects on its assets, liabilities, operation, shares and other legitimate rights.
(c) Cause any resolutions on the distribution of dividends or bonuses to be adopted pass a resolution at the shareholders’ meeting of Party C.D regarding the transfer of the Transferred Equity Interest; and
(d5) SellParty B agrees to assist Party C in the amendment of registration with relevant Industry and Commerce administrative authorities regarding the Transferred Equity Interest immediately after signing the Agreement.
2.2 Party C hereby represents, assignwarrants and undertakes that:
(1) Party C has the power and right to execute, mortgage or otherwise dispose of any legal or beneficial interests on deliver this Agreement and perform the obligations thereunder. This Agreement will legally and validly bind Party C and is enforceable according to its provisions;
(2) Party C agrees to enter into a loan agreement with Party A according to terms and conditions agreed by Party A; and
(3) Party C, as the shareholder of Party D, agrees to pledge all its equity interest in Party D to Party A and authorize Party A the option to purchase such equity interest; and Party C agrees to enter into the Equity Interest Pledge Agreement, the Equity Interest Purchase Agreement and a business operation agreement according to Party A’s shares or allow to create any other security interests thereon at any time from requirement on the effective date of this Agreement.
(e) Cause any sales, transfer, mortgage or otherwise disposal of any legal or beneficial interests on shares to be approved at the shareholders’ meeting of Party C, or allow to create any other security interests thereon, or adopt a shareholder resolution on the increase or decrease of Party C’s registered capital or otherwise modify the structure of the registered capital.
(f) Cause any merger or association of Party C with any persons to be approved at the shareholders’ meeting of Party C, or acquire investments from any persons or make an investment to any persons, or carry out reorganization in any other form.
(g) Cause any winding-up, liquidation or dissolution and other matters of Party C to be approved at the shareholders’ meeting of Party C.
3.2.7 Before Party A (or its designated third party) exercises its option and obtains all of Party C’s shares or assets, Grantors undertake that:
(a) They will forthwith notify Party A in writing of any suits, arbitration or administrative proceedings that have arisen or may arise in relation to the shares owned by them or of any circumstances that may have any adverse effect on such shares.
(b) They will cause the shareholders’ meeting of Party C to examine and approve the transfer of the purchased shares as specified in this Agreement, cause Party C to amend its articles of association so as to reflect any changes of Party C’s shares after Party A and/or its designated third party exercises the option according to this Agreement and other changes as set forth herein and immediately apply to the authorities of the PRC for approval (if required by law) and change of registration, and cause the shareholders’ meeting of Party C to approve and appoint such persons as designated by Party A and/or its designated third party as Party C’s director and legal representative (if necessary).
(c) Before Party A and/or its designated third party exercises the option, they will enter into all necessary or appropriate documents, take all necessary or appropriate actions and make all necessary or appropriate accusations or make all necessary and appropriate defenses for all claims in order to maintain their lawful and effective ownership over the appropriate shares.
(d) Upon Party A’s request at any time, they will unconditionally transfer their shares to Party A and/or its designated third party at the time specified by Party A and waive their right of first refusal against any other shareholders of Party C in respect of the above transfer of shares by them according to Party A’s instructions.
(e) They will strictly abide by this Agreement and other agreements jointly or severally entered into by and between Grantors and Party A, conscientiously perform their obligations under such agreements and will not do any acts/omissions that are likely to affect the validity and enforceability of such agreements.
3.3 Party C and Grantors hereby jointly and severally make the following representations, warranties and undertakings to Party A:
3.3.1 Except as agreed by Party A (or its designated third party) in writing, before Party A (or its designated third party) exercises its option and obtains all of Party C’s shares or interests, Party C shall not:
(a) Sell, assign, mortgage or otherwise dispose of any assets, business or incomes or allow to create any other security interests thereon (excluding those that arise in the ordinary or daily business course or have been disclosed to and agreed by Party A expressly in writing in advance);
(b) Enter into any transactions (excluding those that arise in the ordinary or daily business course or have been disclosed to and agreed by Party A expressly in writing in advance) that will or may have materially adverse effects on its assets, liabilities, operation, shares and other legitimate rights;
(c) Distribute any dividends or bonuses to each shareholder in any form;
(d) Incur, inherit, guarantee or allow the existence of any debts other than (i) any debts that arise in the ordinary or daily business course rather than by borrowing, and (ii) any debts that have been disclosed to and agreed by Party A expressly in writing in advance;
(e) Sign any significant contracts other than those signed in the ordinary business course (for the purpose of this Article, if the amount under a contract is more than RMB50,000, such contract shall be deemed to be a significant contract);
(f) Adopt a shareholder resolution on the increase or decrease of Party C’s registered capital or otherwise modify the structure of the registered capital;
(g) Supplement, modify or amend Party C’s articles of association in any form; and
(h) Enter into merge or association with any persons, or acquire investments from any persons or make an investment to any persons.
3.3.2 On the date of signing this Agreement and each Delivery Date, Party C has no outstanding debts other than (i) any debts arising in its ordinary business course; and (ii) any debts that have been disclosed to and agreed by Party A expressly in writing in advance.
3.3.3 On the date of signing this Agreement and each Delivery Date, there is no suit, arbitration or administrative proceedings that are ongoing or may occur in relation to the shares, Party C’s assets or that may have a substantial impact on the performance of this Agreement by Party C other than those that have been disclosed to and agreed by Party A expressly in writing in advance.
3.3.4 Party C has not been declared bankrupt.
3.3.5 Party C hereby undertakes to Party A that it will comply with all laws and regulations applicable to the acquisition of shares and assets within the term of this Agreement, bear all expenses arising out of the share transfer and handle all procedures necessary for enabling Party A or its designated third party to become Party C’s shareholder, including but not limited to assisting Party A in obtaining any necessary approvals in relation to the share transfer from the approval authorities, submitting the relevant applications required for handling the share change registration to the competent administrative department of industry and commerce and amending the register of shareholders.
Appears in 2 contracts
Samples: Loan Assignment and Equity Interest Transfer Agreement (Sohu Com Inc), Loan Assignment and Equity Interest Transfer Agreement (Changyou.com LTD)
REPRESENTATIONS, WARRANTIES AND UNDERTAKINGS. 3.1 Grantors jointly and severally make the following representations and warranties:
3.1.1 On the date of signing this Agreement and each Delivery Date, Grantors have the powers, rights, authority and ability to sign and deliver this Agreement and any share transfer agreement (hereinafter referred to as “Transfer Agreement”) signed by them as a party thereto for each share transfer according to this Agreement and to perform their obligations under this Agreement and any Transfer Agreement. This Agreement and any Transfer Agreement to which they are a party shall constitute their legal, effective and binding obligations that are enforceable on them according to the provisions thereof once signed.
3.1.2 No signing and delivery of this Agreement or any Transfer Agreement and no performance by Grantors of their obligations under this Agreement or any Transfer Agreement shall (i) result in any violation of any relevant laws and regulations of the PRC; (ii) conflict with the articles of association or other organizational documents; (iii) result in any breach of any binding agreements or instruments to which they are a party or constitute any breach of contract under any binding agreements or instruments to which they are a party; (iv) result in any breach of any licenses or approvals issued by the relevant competent government departments to them; or (v) cause any licenses or approvals issued by the relevant competent government departments to them to be suspended or revoked or attached with any conditions;
3.1.3 There is no suit, arbitration or other judicial or administrative proceedings that are pending or may have a substantial impact on the performance of this Agreement or any Transfer Agreement.
3.1.4 Grantors have good and marketable ownership of all shares of Party C. There are no pledges, liabilities and other third party encumbrances on Party C’s shares held by Grantors other than the pledge under the Equity Pledge Agreement.
3.1.5 Grantors have disclosed to Party A all circumstances that may have a material adverse effect on the performance of this Agreement.
3.1.6 The option granted by Grantors to Party A is exclusive, and Grantors have not otherwise granted any third party any other options or similar rights before or when granting the option to Party A.
3.2 Grantors jointly and severally make the following undertakings:
3.2.1 Within the term of this Agreement, Grantors will not create any pledges, liabilities and any other third party encumbrances on Party C’s shares held by them other than those under the Equity Pledge Agreement separately signed by Grantors and Party A nor transfer, donate or otherwise dispose of any shares held by them to any third party other than the Parties to this Agreement.
3.2.2 Within the term of this Agreement, Grantors will not otherwise grant any other options or similar rights to any third party.
3.2.3 Within the term of this Agreement, Grantors will cause and ensure that the business carried out by Party C conforms to the applicable laws, regulations, rules and other management regulations and documents issued by the competent government departments and that there are no breach of the above provisions that results in a major adverse impact on the business or assets of the company.
3.2.4 Grantors will maintain the valid existence of Party C in accordance with good financial and commercial standards and practices, operate their business and deal with affairs in a prudent and efficient manner, use their best efforts to obtain and maintain any permits, licenses and approvals necessary for Party C’s continuous operation and ensure that any such permits, licenses and approvals will not be canceled, withdrawn or declared null and void.
3.2.5 Grantors will provide Party A with all Party C’s operation and financial information at Party A’s request.
3.2.6 Except as expressly agreed by Party A (or its designated third party) in writing, before Party A (or its designated third party) exercises its option and obtains all of Party C’s shares or assets, Grantors shall not jointly or individually:
(a) Supplement or modify Party C’s constitutional documents in any form, and such supplements, alterations or modifications will have substantial adverse effects on any assets, responsibilities, operation, shares and other legal rights of Party C (excluding the same proportion of capital increase for the purpose of meeting the legal requirements) or may affect the effective performance of this Agreement and other agreements signed by Party A, Grantors and Party C.
(b) Cause Party C to enter into or do any transactions or acts (excluding those that arise in the ordinary or daily business course or have been disclosed to and agreed by Party A expressly in writing in advance) that will have materially adverse effects on its assets, liabilities, operation, shares and other legitimate rights.
(c) Cause any resolutions on the distribution of dividends or bonuses to be adopted at the shareholders’ meeting of Party C.
(d) SellXxxx, assign, mortgage or otherwise dispose of any legal or beneficial interests on Party C’s shares or allow to create any other security interests thereon at any time from the effective date of this Agreement.
(e) Cause any sales, transfer, mortgage or otherwise disposal of any legal or beneficial interests on shares to be approved at the shareholders’ meeting of Party C, or allow to create any other security interests thereon, or adopt a shareholder resolution on the increase or decrease of Party C’s registered capital or otherwise modify the structure of the registered capital.
(f) Cause any merger or association of Party C with any persons to be approved at the shareholders’ meeting of Party C, or acquire investments from any persons or make an investment to any persons, or carry out reorganization in any other form.
(g) Cause any winding-up, liquidation or dissolution and other matters of Party C to be approved at the shareholders’ meeting of Party C.
3.2.7 Before Party A (or its designated third party) exercises its option and obtains all of Party C’s shares or assets, Grantors undertake that:
(a) They will forthwith notify Party A in writing of any suits, arbitration or administrative proceedings that have arisen or may arise in relation to the shares owned by them or of any circumstances that may have any adverse effect on such shares.
(b) They will cause the shareholders’ meeting of Party C to examine and approve the transfer of the purchased shares as specified in this Agreement, cause Party C to amend its articles of association so as to reflect any changes of Party C’s shares after Party A and/or its designated third party exercises the option according to this Agreement and other changes as set forth herein and immediately apply to the authorities of the PRC for approval (if required by law) and change of registration, and cause the shareholders’ meeting of Party C to approve and appoint such persons as designated by Party A and/or its designated third party as Party C’s director and legal representative (if necessary).
(c) Before Party A and/or its designated third party exercises the option, they will enter into all necessary or appropriate documents, take all necessary or appropriate actions and make all necessary or appropriate accusations or make all necessary and appropriate defenses for all claims in order to maintain their lawful and effective ownership over the appropriate shares.
(d) Upon Party A’s request at any time, they will unconditionally transfer their shares to Party A and/or its designated third party at the time specified by Party A and waive their right of first refusal against any other shareholders of Party C in respect of the above transfer of shares by them according to Party A’s instructions.
(e) They will strictly abide by this Agreement and other agreements jointly or severally entered into by and between Grantors and Party A, conscientiously perform their obligations under such agreements and will not do any acts/omissions that are likely to affect the validity and enforceability of such agreements.
3.3 Party C and Grantors hereby jointly and severally make the following representations, warranties and undertakings to Party A:
3.3.1 Except as agreed by Party A (or its designated third party) in writing, before Party A (or its designated third party) exercises its option and obtains all of Party C’s shares or interests, Party C shall not:
(a) Sell, assign, mortgage or otherwise dispose of any assets, business or incomes or allow to create any other security interests thereon (excluding those that arise in the ordinary or daily business course or have been disclosed to and agreed by Party A expressly in writing in advance);
(b) Enter into any transactions (excluding those that arise in the ordinary or daily business course or have been disclosed to and agreed by Party A expressly in writing in advance) that will or may have materially adverse effects on its assets, liabilities, operation, shares and other legitimate rights;
(c) Distribute any dividends or bonuses to each shareholder in any form;
(d) Incur, inherit, guarantee or allow the existence of any debts other than (i) any debts that arise in the ordinary or daily business course rather than by borrowing, and (ii) any debts that have been disclosed to and agreed by Party A expressly in writing in advance;
(e) Sign any significant contracts other than those signed in the ordinary business course (for the purpose of this Article, if the amount under a contract is more than RMB50,000, such contract shall be deemed to be a significant contract);
(f) Adopt a shareholder resolution on the increase or decrease of Party C’s registered capital or otherwise modify the structure of the registered capital;
(g) Supplement, modify or amend Party C’s articles of association in any form; and
(h) Enter into merge or association with any persons, or acquire investments from any persons or make an investment to any persons.
3.3.2 On the date of signing this Agreement and each Delivery Date, Party C has no outstanding debts other than (i) any debts arising in its ordinary business course; and (ii) any debts that have been disclosed to and agreed by Party A expressly in writing in advance.
3.3.3 On the date of signing this Agreement and each Delivery Date, there is no suit, arbitration or administrative proceedings that are ongoing or may occur in relation to the shares, Party C’s assets or that may have a substantial impact on the performance of this Agreement by Party C other than those that have been disclosed to and agreed by Party A expressly in writing in advance.
3.3.4 Party C has not been declared bankrupt.
3.3.5 Party C hereby undertakes to Party A that it will comply with all laws and regulations applicable to the acquisition of shares and assets within the term of this Agreement, bear all expenses arising out of the share transfer and handle all procedures necessary for enabling Party A or its designated third party to become Party C’s shareholder, including but not limited to assisting Party A in obtaining any necessary approvals in relation to the share transfer from the approval authorities, submitting the relevant applications required for handling the share change registration to the competent administrative department of industry and commerce and amending the register of shareholders.
Appears in 2 contracts
Samples: Option Agreement (Sunlands Technology Group), Option Agreement (Sunlands Technology Group)
REPRESENTATIONS, WARRANTIES AND UNDERTAKINGS. 3.1 Grantors The Authorizing Parties jointly and severally make the following representations and warranties:
3.1.1 On the signing date of signing this the Agreement and each Delivery Dateevery settlement date, Grantors the Authorizing Parties have the powerspower, rights, authority authorization and ability capabilities to sign and deliver this the Agreement and any share other agreements on each stock and/or asset transfer agreement hereunder (hereinafter referred to as the “Transfer AgreementAgreements”) signed by them as a party thereto for each share transfer according to this which the Authorizing Parties are parties, and perform the obligations under the Agreement and to perform their obligations under this Transfer Agreements. The Agreement and any Transfer Agreement. This Agreement and any Transfer Agreement Agreements to which they the Authorizing Parties are a party shall constitute their parties will become legal, effective valid, binding upon and binding obligations that are enforceable on them according to against the provisions thereof once signedAuthorizing Parties upon signing.
3.1.2 No The signing and delivery of this the Agreement or any Transfer Agreement, and the Authorizing Parties’ performance of obligations under the Agreement or any Transfer Agreement and no performance by Grantors of their obligations under this Agreement or will not: (1) violate any Transfer Agreement shall (i) result in any violation of any relevant applicable Chinese laws and regulations of the PRCregulations; (ii2) conflict with against the articles of association or any other organizational documentsdocuments of Party C; (iii3) result in cause violation of or breach under any breach of any binding agreements agreement or written instruments to which they the Authorizing Parties are a party parties, or constitute any breach of contract under any which are binding agreements or instruments to which they are a partyupon the Authorizing Parties; (iv4) result in violate any breach of any licenses approval or approvals issued permission granted to the Authorizing Parties by the relevant competent related government departments to them; authorities, or (v5) cause any licenses termination or approvals issued cancellation of or additional conditions imposed on approval or permission granted to the Authorizing Parties by the relevant competent related government departments to them to be suspended or revoked or attached with any conditions;authorities.
3.1.3 There is no suitany lawsuit, arbitration or other judicial or administrative proceedings proceeding that are is pending or may materially impact the performance of the Agreement or any Transfer Agreement;
3.1.4 Authorizing Party 1’s title to stocks in Party C and/or Authorizing Party 2’s title to assets under Party C are in good standing and can be transferred. Except the pledge under the Equity Interest Pledge Agreement, Authorizing Party 1’s stocks in Party C and/or Authorizing Party 2’s assets are not subject to any pledge, liability or other third-party encumbrance.
3.1.5 The Authorizing Parties have a substantial disclosed all possible events that may have material adverse impact on the performance of this Agreement or any Transfer the Agreement.;
3.1.4 Grantors have good and marketable ownership of all shares of Party C. There are no pledges, liabilities and other third party encumbrances on Party C’s shares held by Grantors other than the pledge under the Equity Pledge Agreement.
3.1.5 Grantors have disclosed 3.1.6 The Options granted to Party A all circumstances that may have a material adverse effect on by the performance of this Agreement.
3.1.6 The option granted by Grantors to Party A is Authorizing Parties are exclusive, and Grantors have not otherwise granted any third party any other options or similar rights before or when granting at the option to Party A.
3.2 Grantors jointly and severally make same time with such granting, the following undertakings:
3.2.1 Within Authorizing Parties have never granted the term of this Agreement, Grantors will not create any pledges, liabilities and any other third party encumbrances on Party C’s shares held by them other than those under the Equity Pledge Agreement separately signed by Grantors and Party A nor transfer, donate or otherwise dispose of any shares held by them to any third party other than the Parties to this Agreement.
3.2.2 Within the term of this Agreement, Grantors will not otherwise grant any other options Options or similar rights to any third partyparty in any other manner.
3.2.3 Within 3.2 The Authorizing Parties jointly and severally undertake that:
3.2.1 During the term validity period of this the Agreement, Grantors the Authorizing Parties will cause and ensure not, for the benefit of any third person that is not a party to the business carried out by Agreement, make any stocks in or assets under Party C conforms owned by the Authorizing Parties (as the case may be) subject to any pledge, liabilities or any other third-party encumbrance, and will not transfer or present their stocks and/or assets to any third person that is not a party to the Agreement, or otherwise dispose of such stocks and/or assets (as the case may be);
3.2.2 During the validity period of the Agreement, the Authorizing Parties will not grant any third party the Options or similar rights in any other manner;
3.2.3 During the validity period of the Agreement, the Authorizing Parties will ensure Party C’s operations comply with applicable laws, regulationsrules, rules regulations and other management regulations rules and documents issued by the competent government departments authorities, and do not engage in any irregularity that there are no breach of the above provisions that results in a major adverse can have material negative impact on the business company’s operations or assets of the company.assets;
3.2.4 Grantors The Authorizing Parties will maintain the valid existence of Party C in accordance with good insist on sound financial and commercial standards and practicesconventions to keep Party C in good standing, prudentially and effectively operate their business and deal with affairs in a prudent and efficient mannerhandle their affairs, use their best efforts endeavor to obtain and maintain any the permits, licenses and approvals necessary for sustainable operation of Party C’s continuous operation , and ensure that any such permits, licenses and approvals will are not be canceled, withdrawn or declared null and void.revoked;
3.2.5 Grantors will The Authorizing Parties shall provide Party A with all Party C’s operation operating data and financial information at data related to Party C upon Party A’s request.;
3.2.6 Except as expressly agreed by Prior to Party A (or its designated third party) ’s exercise of Options and acquisition of all the Stocks in writingor assets under Party C, before unless with express written approval of Party A (or its designated third party) exercises its option and obtains all of Party C’s shares or assets, Grantors the Authorizing Parties shall not never jointly or individuallyseverally engage in any of the following activities:
(a) Supplement Amending or modify modifying Party C’s constitutional documents in any form, and such supplements, alterations or modifications will ways that have substantial adverse effects material negative impact on any Party C’s assets, responsibilitiesliabilities, operationoperations, shares stocks and other legal legitimate rights of Party C (excluding except the same proportion of cases where proportional capital increase for the purpose of meeting the is made to fulfill legal requirements) or may affect impact the effective performance of this the Agreement and other agreements signed by Party A, Grantors A and Party C.the Authorizing Parties;
(b) Cause Causing Party C to enter into any transaction or do any transactions or acts behavior that can have material negative impact on Party C’s assets, liabilities, operations, stocks and other legitimate rights (excluding except those that arise in the take place as part of ordinary or daily day-to-day business course or have been disclosed to and agreed by Party A expressly in writing in advance) that will have materially adverse effects on its assets, liabilities, operation, shares and other legitimate rights.obtained Party A’s express prior written approval);
(c) Cause Causing any dividend or bonus payment resolutions on the distribution of dividends or bonuses to be adopted at the shareholders’ passed on shareholder meeting of Party C.C;
(d) SellSelling, assigntransferring, mortgage pledging or otherwise dispose disposing of any the legal or and beneficial interests on in any stocks in and/or assets under Party C’s shares , or allow to create allowing the placing of any other security interests thereon at any time from as of the effective date of this the Agreement.;
(e) Cause any salesCausing Party C’s shareholder meeting to approve the sale, transfer, mortgage pledging or otherwise other disposal of any the legal or and beneficial interests on shares to be approved at the shareholders’ meeting of in any stocks in and/or assets under Party C, or allow to create allowing the placing of any other security interests thereon, or adopt a shareholder resolution on increasing or reducing Party C’s registered capital or assets, or changing the increase or decrease structure of Party C’s registered capital or otherwise modify the structure of the registered capital.via shareholder resolutions;
(f) Cause Causing the Party C’s shareholder meeting to approve any merger or association of combination between Party C with and any persons to be approved at the shareholders’ meeting of Party Cother party, or acquire investments from any persons acquisition of or make an external investment to in any personsother party, or carry out reorganization any restructuring in any other form.; or
(g) Cause any Causing Party C’s shareholder meeting to approve a voluntary winding-up, liquidation or dissolution and other matters of Party C to be approved at the shareholders’ meeting of Party C.
3.2.7 Before Prior to Party A (or its designated third party) exercises its option ’s exercise of Options and obtains acquisition of all of the stocks in and assets under Party C’s shares or assets, Grantors the Authorizing Parties undertake that:
(a) They The Authorizing Parties will forthwith notify immediately inform Party A in writing of any suitslawsuit, arbitration or administrative proceedings proceeding that have arisen has happened or may arise in relation happen with respect to Party A’s stocks and/or assets, as the shares owned by them case may be, or of any circumstances events that may have any adverse effect negative impact on such shares.stocks or assets;
(b) They The Authorizing Parties will cause the shareholders’ Party C’s shareholder meeting of Party C to examine consider and approve the transfer of stocks and/or assets acquired hereunder, as the purchased shares as specified in this Agreementcase may be, and cause Party C to amend change its articles of association so as to reflect any changes of Party C’s shares after the change in the ownership structure upon Party A and/or its designated third party exercises party’s exercise of Options hereunder, as well as other changes. When the option according Options are being exercised, the Authorizing Parties will cause Party C to this Agreement and other changes as set forth herein and immediately apply submit application to the Chinese competent authorities to seek approval of the PRC for approval such exercise (if required by law) and change of registration), and register related changes in competent authorities. The Authorizing Parties will cause the shareholders’ meeting of Party C to approve and appoint such persons as the shareholder resolutions of appointing people designated by Party A and/or its designated third party as Party C’s director directors and legal representative (representative, if necessary).;
(c) Before Prior to Party A and/or its designated third party exercises party’s exercise of Options, the option, they Authorizing Parties will enter into sign all necessary or appropriate documents, take all necessary or appropriate actions and make all actions, file any necessary or appropriate accusations charge, or make all necessary and appropriate defenses for defence against all claims claims, in order to maintain their lawful keep the Authorizing Parties’ legal and effective ownership over valid title to the appropriate sharesunderlying stocks and/or assets.
(d) Upon Party A’s request at any time, they will The Authorizing Parties may unconditionally transfer their shares stocks and/or assets to Party A and/or its designated third party at the any time specified designated by Party A A, and waive their give up any right of first refusal pre-emption against any other shareholders of Party C in respect of the above stock transfer made based on instructions of shares by them according to Party A’s instructions.;
(e) They The Authorizing Parties will strictly abide by this comply with the Agreement and other agreements jointly or severally entered into separately signed by and between Grantors and the Authorizing Parties with Party A, conscientiously perform and will effectively fulfill their obligations under such agreements and hereunder. The Authorizing Parties will not do engage in any acts/omissions action or omission that are likely to affect may impact the validity and enforceability of such agreementsthe Agreement.
3.3 Party C and Grantors hereby jointly and severally Party B make the following representations, warranties and undertakings to Party A:
3.3.1 Except as agreed by Prior to Party A (or its designated third party) ’s exercise of Options and acquisition of all the stocks in writingand/or assets under and interests in Party C, before unless with written approval of Party A (or its designated third party) exercises its option and obtains all of Party C’s shares or interests, Party C shall notnot engage in any of the following activities:
(a) SellSelling, assigntransferring, mortgage pledging or otherwise dispose disposing of any assets, business businesses or incomes income, or allow to create allowing the placing of any other security interests thereon (excluding except those that arise in the take place as a result of ordinary or daily day-to-day business course or have been disclosed to and agreed by Party A expressly in writing in advanceand obtained Party A’s express prior written approval);
(b) Enter Entering into any transactions (excluding those transaction that arise in the ordinary or daily business course or have been disclosed to and agreed by Party A expressly in writing in advance) that will or may have materially adverse effects material negative impact on its assets, liabilities, operationoperations, shares stocks and other legitimate rightsrights (except those that take place as part of normal or day-to-day business or have been disclosed to Party A and obtained Party A’s express prior written approval);
(c) Distribute Distributing any dividends dividend or bonuses bonus to each shareholder in any form;
(d) IncurTaking on, inheritinheriting, providing guarantee for or allow allowing the existence of any debts other than debts, except (i1) any debts that arise in the ordinary from normal or daily business course day-to-day operations rather than by borrowing, and (ii2) any debts that have been disclosed to and agreed by Party A expressly in writing in advanceand obtained Party A’s express prior written approval;
(e) Sign Signing any significant contracts, except contracts other than those signed in the ordinary business course process of normal operations (for the purpose of this Articleterm, if the amount under a contract is more than RMB50,000, such contract shall will be deemed to be as a significant contractcontract if its value exceeds RMB 50,000);
(f) Adopt a shareholder resolution on Increasing or reducing Party C’s registered capital, or changing the increase or decrease structure of Party C’s registered capital or otherwise modify the structure of the registered capitalvia shareholder resolutions;
(g) SupplementAmending, modify changing or amend Party C’s modifying articles of association of Party C in any form; and;
(h) Enter into merge Merging or association combining with any personsperson, acquiring any person or acquire investments from making investment in any persons or make an investment to any personsperson.
3.3.2 On the signing date of signing this the Agreement and each Delivery Datesettlement date, Party C has no outstanding debts other than except (i1) any debts arising in its ordinary business course; that arise from normal operations, and (ii2) any debts that have been disclosed to and agreed by Party A expressly in writing in advanceand obtained Party A’s express prior written approval.
3.3.3 On the signing date of signing this the Agreement and each Delivery Datesettlement date, there Party C is no suitnot subject to any ongoing or potential lawsuit, arbitration or administrative proceedings proceeding that are ongoing may have material negative impact on the stocks in and assets under Party C or may occur in relation to the shares, Party C’s assets or that may have a substantial impact on the performance of this Agreement by Party C other than those the Agreement, except the lawsuit, arbitration or administrative proceeding that have has been disclosed to and agreed by Party A expressly in writing in advanceand obtained Party A’s express written approval.
3.3.4 Party C has is not been declared bankrupt.;
3.3.5 Party C hereby undertakes gives an undertaking to Party A that it Party C will comply with all laws and regulations rules applicable to the acquisition of shares stock and assets within the term of this Agreementasset acquisition, and will bear all expenses costs arising out from the transfer of the share transfer stocks and/or assets, and handle finish all procedures formalities that are necessary for enabling to make Party A or its designated third party to become a shareholder of Party C or an owner of assets under Party C’s shareholder, including but not limited to assisting helping Party A in obtaining any obtain necessary approvals in relation to permissions from competent authorities for the share transfer from the approval authoritiesof stocks and/or assets, submitting the relevant applications required for handling the share change registration to the competent administrative department of industry and commerce commercial administration to register ownership change, and amending modifying the register of shareholdersshareholder register.
Appears in 2 contracts
Samples: Option Agreement (uCloudlink Group Inc.), Option Agreement (uCloudlink Group Inc.)
REPRESENTATIONS, WARRANTIES AND UNDERTAKINGS. 3.1 Grantors The Authorizing Parties jointly and severally make the following representations and warranties:
3.1.1 On the signing date of signing this the Agreement and each Delivery Dateevery settlement date, Grantors the Authorizing Parties have the powerspower, rights, authority authorization and ability capabilities to sign and deliver this the Agreement and any share other agreements on each stock and/or asset transfer agreement hereunder (hereinafter referred to as the “Transfer AgreementAgreements”) signed by them as a party thereto for each share transfer according to this which the Authorizing Parties are parties, and perform the obligations under the Agreement and to perform their obligations under this Transfer Agreements. The Agreement and any Transfer Agreement. This Agreement and any Transfer Agreement Agreements to which they the Authorizing Parties are a party shall constitute their parties will become legal, effective valid, binding upon and binding obligations that are enforceable on them according to against the provisions thereof once signedAuthorizing Parties upon signing.
3.1.2 No The signing and delivery of this the Agreement or any Transfer Agreement, and the Authorizing Parties’ performance of obligations under the Agreement or any Transfer Agreement and no performance by Grantors of their obligations under this Agreement or will not: (1) violate any Transfer Agreement shall (i) result in any violation of any relevant applicable Chinese laws and regulations of the PRCregulations; (ii2) conflict with against the articles of association or any other organizational documentsdocuments of Party C; (iii3) result in cause violation of or breach under any breach of any binding agreements agreement or written instruments to which they the Authorizing Parties are a party parties, or constitute any breach of contract under any which are binding agreements or instruments to which they are a partyupon the Authorizing Parties; (iv4) result in violate any breach of any licenses approval or approvals issued permission granted to the Authorizing Parties by the relevant competent related government departments to them; authorities, or (v5) cause any licenses termination or approvals issued cancellation of or additional conditions imposed on approval or permission granted to the Authorizing Parties by the relevant competent related government departments to them to be suspended or revoked or attached with any conditions;authorities.
3.1.3 There is no suitany lawsuit, arbitration or other judicial or administrative proceedings proceeding that are is pending or may materially impact the performance of the Agreement or any Transfer Agreement;
3.1.4 Authorizing Party 1’s title to stocks in Party C and/or Authorizing Party 2’s title to assets under Party C are in good standing and can be transferred. Except the pledge under the Equity Interest Pledge Agreement, Authorizing Party 1’s stocks in Party C and/or Authorizing Party 2’s assets are not subject to any pledge, liability or other third-party encumbrance.
3.1.5 The Authorizing Parties have a substantial disclosed all possible events that may have material adverse impact on the performance of this Agreement or any Transfer the Agreement.;
3.1.4 Grantors have good and marketable ownership of all shares of Party C. There are no pledges, liabilities and other third party encumbrances on Party C’s shares held by Grantors other than the pledge under the Equity Pledge Agreement.
3.1.5 Grantors have disclosed 3.1.6 The Options granted to Party A all circumstances that may have a material adverse effect on by the performance of this Agreement.
3.1.6 The option granted by Grantors to Party A is Authorizing Parties are exclusive, and Grantors have not otherwise granted any third party any other options or similar rights before or when granting at the option to Party A.
3.2 Grantors jointly and severally make same time with such granting, the following undertakings:
3.2.1 Within Authorizing Parties have never granted the term of this Agreement, Grantors will not create any pledges, liabilities and any other third party encumbrances on Party C’s shares held by them other than those under the Equity Pledge Agreement separately signed by Grantors and Party A nor transfer, donate or otherwise dispose of any shares held by them to any third party other than the Parties to this Agreement.
3.2.2 Within the term of this Agreement, Grantors will not otherwise grant any other options Options or similar rights to any third partyparty in any other manner.
3.2.3 Within 3.2 The Authorizing Parties jointly and severally undertake that:
3.2.1 During the term validity period of this the Agreement, Grantors the Authorizing Parties will cause and ensure not, for the benefit of any third person that is not a party to the business carried out by Agreement, make any stocks in or assets under Party C conforms owned by the Authorizing Parties (as the case may be) subject to any pledge, liabilities or any other third-party encumbrance, and will not transfer or present their stocks and/or assets to any third person that is not a party to the Agreement, or otherwise dispose of such stocks and/or assets (as the case may be);
3.2.2 During the validity period of the Agreement, the Authorizing Parties will not grant any third party the Options or similar rights in any other manner;
3.2.3 During the validity period of the Agreement, the Authorizing Parties will ensure Party C’s operations comply with applicable laws, regulationsrules, rules regulations and other management regulations rules and documents issued by the competent government departments authorities, and do not engage in any irregularity that there are no breach of the above provisions that results in a major adverse can have material negative impact on the business company’s operations or assets of the company.assets;
3.2.4 Grantors The Authorizing Parties will maintain the valid existence of Party C in accordance with good insist on sound financial and commercial standards and practicesconventions to keep Party C in good standing, prudentially and effectively operate their business and deal with affairs in a prudent and efficient mannerhandle their affairs, use their best efforts endeavor to obtain and maintain any the permits, licenses and approvals necessary for sustainable operation of Party C’s continuous operation , and ensure that any such permits, licenses and approvals will are not be canceled, withdrawn or declared null and void.revoked;
3.2.5 Grantors will The Authorizing Parties shall provide Party A with all Party C’s operation operating data and financial information at data related to Party C upon Party A’s request.;
3.2.6 Except as expressly agreed by Prior to Party A (or its designated third party) ’s exercise of Options and acquisition of all the Stocks in writingor assets under Party C, before unless with express written approval of Party A (or its designated third party) exercises its option and obtains all of Party C’s shares or assets, Grantors the Authorizing Parties shall not never jointly or individuallyseverally engage in any of the following activities:
(a) Supplement Amending or modify modifying Party C’s constitutional documents in any form, and such supplements, alterations or modifications will ways that have substantial adverse effects material negative impact on any Party C’s assets, responsibilitiesliabilities, operationoperations, shares stocks and other legal legitimate rights of Party C (excluding except the same proportion of cases where proportional capital increase for the purpose of meeting the is made to fulfill legal requirements) or may affect impact the effective performance of this the Agreement and other agreements signed by Party A, Grantors A and Party C.the Authorizing Parties;
(b) Cause Causing Party C to enter into any transaction or do any transactions or acts behavior that can have material negative impact on Party C’s assets, liabilities, operations, stocks and other legitimate rights (excluding except those that arise in the take place as part of ordinary or daily day-to-day business course or have been disclosed to and agreed by Party A expressly in writing in advance) that will have materially adverse effects on its assets, liabilities, operation, shares and other legitimate rights.obtained Party A’s express prior written approval);
(c) Cause Causing any dividend or bonus payment resolutions on the distribution of dividends or bonuses to be adopted at the shareholders’ passed on shareholder meeting of Party C.C;
(d) SellSelling, assigntransferring, mortgage pledging or otherwise dispose disposing of any the legal or and beneficial interests on in any stocks in and/or assets under Party C’s shares , or allow to create allowing the placing of any other security interests thereon at any time from as of the effective date of this the Agreement.;
(e) Cause any salesCausing Party C’s shareholder meeting to approve the sale, transfer, mortgage pledging or otherwise other disposal of any the legal or and beneficial interests on shares to be approved at the shareholders’ meeting of in any stocks in and/or assets under Party C, or allow to create allowing the placing of any other security interests thereon, or adopt a shareholder resolution on increasing or reducing Party C’s registered capital or assets, or changing the increase or decrease structure of Party C’s registered capital or otherwise modify the structure of the registered capital.via shareholder resolutions;
(f) Cause Causing the Party C’s shareholder meeting to approve any merger or association of combination between Party C with and any persons to be approved at the shareholders’ meeting of Party Cother party, or acquire investments from any persons acquisition of or make an external investment to in any personsother party, or carry out reorganization any restructuring in any other form.; or
(g) Cause any Causing Party C’s shareholder meeting to approve a voluntary winding-up, liquidation or dissolution and other matters of Party C to be approved at the shareholders’ meeting of Party C.
3.2.7 Before Prior to Party A (or its designated third party) exercises its option ’s exercise of Options and obtains acquisition of all of the stocks in and assets under Party C’s shares or assets, Grantors the Authorizing Parties undertake that:
(a) They The Authorizing Parties will forthwith notify immediately inform Party A in writing of any suitslawsuit, arbitration or administrative proceedings proceeding that have arisen has happened or may arise in relation happen with respect to Party A’s stocks and/or assets, as the shares owned by them case may be, or of any circumstances events that may have any adverse effect negative impact on such shares.stocks or assets;
(b) They The Authorizing Parties will cause the shareholders’ Party C’s shareholder meeting of Party C to examine consider and approve the transfer of stocks and/or assets acquired hereunder, as the purchased shares as specified in this Agreementcase may be, and cause Party C to amend change its articles of association so as to reflect any changes of Party C’s shares after the change in the ownership structure upon Party A and/or its designated third party exercises party’s exercise of Options hereunder, as well as other changes. When the option according Options are being exercised, the Authorizing Parties will cause Party C to this Agreement and other changes as set forth herein and immediately apply submit application to the Chinese competent authorities to seek approval of the PRC for approval such exercise (if required by law) and change of registration), and register related changes in competent authorities. The Authorizing Parties will cause the shareholders’ meeting of Party C to approve and appoint such persons as the shareholder resolutions of appointing people designated by Party A and/or its designated third party as Party C’s director directors and legal representative (representative, if necessary).;
(c) Before Prior to Party A and/or its designated third party exercises party’s exercise of Options, the option, they Authorizing Parties will enter into sign all necessary or appropriate documents, take all necessary or appropriate actions and make all actions, file any necessary or appropriate accusations charge, or make all necessary and appropriate defenses for defense against all claims claims, in order to maintain their lawful keep the Authorizing Parties’ legal and effective ownership over valid title to the appropriate sharesunderlying stocks and/or assets.
(d) Upon Party A’s request at any time, they will The Authorizing Parties may unconditionally transfer their shares stocks and/or assets to Party A and/or its designated third party at the any time specified designated by Party A A, and waive their give up any right of first refusal pre-emption against any other shareholders of Party C in respect of the above stock transfer made based on instructions of shares by them according to Party A’s instructions.;
(e) They The Authorizing Parties will strictly abide by this comply with the Agreement and other agreements jointly or severally entered into separately signed by and between Grantors and the Authorizing Parties with Party A, conscientiously perform and will effectively fulfill their obligations under such agreements and hereunder. The Authorizing Parties will not do engage in any acts/omissions action or omission that are likely to affect may impact the validity and enforceability of such agreementsthe Agreement.
3.3 Party C and Grantors hereby jointly and severally Party B make the following representations, warranties and undertakings to Party A:
3.3.1 Except as agreed by Prior to Party A (or its designated third party) ’s exercise of Options and acquisition of all the stocks in writingand/or assets under and interests in Party C, before unless with written approval of Party A (or its designated third party) exercises its option and obtains all of Party C’s shares or interests, Party C shall notnot engage in any of the following activities:
(a) SellSelling, assigntransferring, mortgage pledging or otherwise dispose disposing of any assets, business businesses or incomes income, or allow to create allowing the placing of any other security interests thereon (excluding except those that arise in the take place as a result of ordinary or daily day-to-day business course or have been disclosed to and agreed by Party A expressly in writing in advanceand obtained Party A’s express prior written approval);
(b) Enter Entering into any transactions (excluding those transaction that arise in the ordinary or daily business course or have been disclosed to and agreed by Party A expressly in writing in advance) that will or may have materially adverse effects material negative impact on its assets, liabilities, operationoperations, shares stocks and other legitimate rightsrights (except those that take place as part of normal or day-to-day business or have been disclosed to Party A and obtained Party A’s express prior written approval);
(c) Distribute Distributing any dividends dividend or bonuses bonus to each shareholder in any form;
(d) IncurTaking on, inheritinheriting, providing guarantee for or allow allowing the existence of any debts other than debts, except (i1) any debts that arise in the ordinary from normal or daily business course day-to-day operations rather than by borrowing, and (ii2) any debts that have been disclosed to and agreed by Party A expressly in writing in advanceand obtained Party A’s express prior written approval;
(e) Sign Signing any significant contracts, except contracts other than those signed in the ordinary business course process of normal operations (for the purpose of this Articleterm, if the amount under a contract is more than RMB50,000, such contract shall will be deemed to be as a significant contractcontract if its value exceeds RMB 50,000);
(f) Adopt a shareholder resolution on Increasing or reducing Party C’s registered capital, or changing the increase or decrease structure of Party C’s registered capital or otherwise modify the structure of the registered capitalvia shareholder resolutions;
(g) SupplementAmending, modify changing or amend Party C’s modifying articles of association of Party C in any form; and;
(h) Enter into merge Merging or association combining with any personsperson, acquiring any person or acquire investments from making investment in any persons or make an investment to any personsperson.
3.3.2 On the signing date of signing this the Agreement and each Delivery Datesettlement date, Party C has no outstanding debts other than except (i1) any debts arising in its ordinary business course; that arise from normal operations, and (ii2) any debts that have been disclosed to and agreed by Party A expressly in writing in advanceand obtained Party A’s express prior written approval.
3.3.3 On the signing date of signing this the Agreement and each Delivery Datesettlement date, there Party C is no suitnot subject to any ongoing or potential lawsuit, arbitration or administrative proceedings proceeding that are ongoing may have material negative impact on the stocks in and assets under Party C or may occur in relation to the shares, Party C’s assets or that may have a substantial impact on the performance of this Agreement by Party C other than those the Agreement, except the lawsuit, arbitration or administrative proceeding that have has been disclosed to and agreed by Party A expressly in writing in advanceand obtained Party A’s express written approval.
3.3.4 Party C has is not been declared bankrupt.;
3.3.5 Party C hereby undertakes gives an undertaking to Party A that it Party C will comply with all laws and regulations rules applicable to the acquisition of shares stock and assets within the term of this Agreementasset acquisition, and will bear all expenses costs arising out from the transfer of the share transfer stocks and/or assets, and handle finish all procedures formalities that are necessary for enabling to make Party A or its designated third party to become a shareholder of Party C or an owner of assets under Party C’s shareholder, including but not limited to assisting helping Party A in obtaining any obtain necessary approvals in relation to permissions from competent authorities for the share transfer from the approval authoritiesof stocks and/or assets, submitting the relevant applications required for handling the share change registration to the competent administrative department of industry and commerce commercial administration to register ownership change, and amending modifying the register of shareholdersshareholder register.
Appears in 2 contracts
Samples: Option Agreement (uCloudlink Group Inc.), Option Agreement (uCloudlink Group Inc.)
REPRESENTATIONS, WARRANTIES AND UNDERTAKINGS. 3.1 Grantors jointly 5.1 Party A represents, warranties and severally make the following representations and warrantiesundertakes to Party B:
3.1.1 On 5.1.1 Party A has all requisite capacity, power and authority (including necessary governmental approval and internal corporate approval) to execute and perform this Agreement;
5.1.2 This Agreement constitutes a legally binding obligation of Party A upon its execution of this Agreement;
5.1.3 Party A is the date sole legal user, operator and copyright owner of signing the Transferred Software. Party A has all rights and authority to dispose of the copyright of the Transferred Software;
5.1.4 There is no mortgage, pledge, guarantee, lien, surety, security interest or encumbrances of any kind on all or part of the copyright of the Transferred Software, there is no agreement or undertaking that would lead to or give rise to any aforesaid mortgage, pledge, guarantee, lien, surety, security interest or encumbrances of any kind, and there is no person entitled to claim aforesaid mortgage, pledge, guarantee, lien, surety, security interest or encumbrances of any kind;
5.1.5 Party A is not currently involved in any litigation, arbitration or other legal or administrative proceedings regarding the copyright of the Transferred Software. Party A is not aware of any litigation, arbitration or other legal or administrative proceedings that would threaten or affect Party A’s performance of its obligations under this Agreement Agreement;
5.1.6 The technology, data and each Delivery Dateinformation of the Transferred Software does not infringe on the intellectual property of any third party, Grantors have and there is no pending claim in connection with the powerscopyright of the Transferred Software;
5.1.7 The relevant technology, rightsdata and information of the Transferred Software does not contain logic bomb, authority virus or other material hidden danger. Party A has established effective mechanism to prevent illegal attack of the system by other persons or viruses, and ability has taken effective measures to sign backup relevant technology and deliver data;
5.1.8 Party A undertakes that its employees shall not develop or upgrade the current version of the Transferred Software. If Party A breaches this Agreement clause, any software copyright arising from such development or upgrade shall belong to Party B;
5.1.9 Party A has properly and any share transfer agreement (hereinafter referred timely paid all taxes and expenses related to as “Transfer Agreement”) signed by them as a party thereto for each share transfer according the Transferred Software and all taxes arising from its ownership and operation thereof, pursuant to this Agreement PRC laws, regulations and relevant administrative measures, and therefore there is no outstanding, current, contingent or future tax or other expense obligations on the Transferred Software;
5.1.10 Party A has disclosed to perform their Party B all information known to Party A that is relevant to the Transferred Software, including information that may materially and adversely affect Party A’s performance of its obligations under this Agreement and information that may substantially affect Party B’s intent to enter into this Agreement upon disclosure. All materials provided by Party A to Party B are complete and correct and without any Transfer Agreement. This Agreement and any Transfer Agreement material mistake, misrepresentation or misleading statement;
5.1.11 Party A shall use all reasonable efforts to which they are a party shall constitute their legal, effective and binding obligations that are enforceable on them according satisfy the conditions precedent to the provisions thereof once signed.Closing set forth in Section 3 of this Agreement;
3.1.2 No signing 5.1.12 Party A shall provide Party B with the Transferred Software and delivery all relevant technical information and data (including but not limited to all source code of the Transferred Software) pursuant to this Agreement;
5.1.13 Party A shall not engage in any activity that contradicts this Agreement or any Transfer Agreement and no performance by Grantors of their Party A’s obligations or undertakings under this Agreement Agreement;
5.1.14 Within the one year following the Closing Date, Party A shall provide, or any Transfer Agreement instruct its employee to provide Party B with free technical support for the Transferred Software’s use, operation, maintenance, etc. Party A shall (i) result in any violation of any relevant laws also provide Party B with instructions regarding the technology structure, development and regulations operation of the PRC; Transferred Software.
5.2 Party B represents, warranties and undertakes to Party A:
5.2.1 Party B has all requisite capacity, power and authority (iiincluding necessary governmental approval and internal corporate approval) conflict with the articles of association or other organizational documents; (iii) result in any breach of any binding agreements or instruments to which they are a party or constitute any breach of contract under any binding agreements or instruments to which they are a party; (iv) result in any breach of any licenses or approvals issued by the relevant competent government departments to them; or (v) cause any licenses or approvals issued by the relevant competent government departments to them to be suspended or revoked or attached with any conditionsexecute and perform this Agreement;
3.1.3 There is no suit, arbitration or other judicial or administrative proceedings that are pending or may have 5.2.2 This Agreement constitutes a substantial impact on the performance legally binding obligation of Party B upon its execution of this Agreement or any Transfer Agreement.;
3.1.4 Grantors have good and marketable ownership of all shares of 5.2.3 Party C. There are no pledges, liabilities and other third party encumbrances on Party C’s shares held by Grantors other than the pledge under the Equity Pledge Agreement.
3.1.5 Grantors have disclosed B shall pay to Party A all circumstances that may have a material adverse effect on Transfer Consideration pursuant to the performance terms and conditions of this Agreement.
3.1.6 The option granted 5.3 Any breach of representations, warranties or undertakings by Grantors to a Party A is exclusiveshall constitute an event of default, and Grantors have not otherwise granted any third the non-breaching party any other options or similar rights before or when granting shall be entitled to request the option breaching party to Party A.
3.2 Grantors jointly and severally make the following undertakings:
3.2.1 Within the term reasonably rectify such event of default, so as to continue its performance of this Agreement, Grantors will not create any pledges, liabilities and any other third . The non-breaching party encumbrances on Party C’s shares held by them other than those under the Equity Pledge Agreement separately signed by Grantors and Party A nor transfer, donate or otherwise dispose of any shares held by them shall be entitled to any third party other than the Parties to this Agreement.
3.2.2 Within the term of this Agreement, Grantors will not otherwise grant any other options or similar rights to any third party.
3.2.3 Within the term of this Agreement, Grantors will cause and ensure that the business carried out by Party C conforms to the applicable laws, regulations, rules and other management regulations and documents issued by the competent government departments and that there are no breach of the above provisions that results in a major adverse impact on the business or assets of the company.
3.2.4 Grantors will maintain the valid existence of Party C in accordance with good financial and commercial standards and practices, operate their business and deal with affairs in a prudent and efficient manner, use their best efforts to obtain and maintain any permits, licenses and approvals necessary for Party C’s continuous operation and ensure that any such permits, licenses and approvals will not be canceled, withdrawn or declared null and void.
3.2.5 Grantors will provide Party A with all Party C’s operation and financial information at Party A’s request.
3.2.6 Except as expressly agreed by Party A (or recover its designated third party) in writing, before Party A (or its designated third party) exercises its option and obtains all of Party C’s shares or assets, Grantors shall not jointly or individually:
(a) Supplement or modify Party C’s constitutional documents in any form, and such supplements, alterations or modifications will have substantial adverse effects on any assets, responsibilities, operation, shares and other legal rights of Party C (excluding the same proportion of capital increase for the purpose of meeting the legal requirements) or may affect the effective performance of this Agreement and other agreements signed by Party A, Grantors and Party C.
(b) Cause Party C to enter into or do any transactions or acts (excluding those that arise in the ordinary or daily business course or have been disclosed to and agreed by Party A expressly in writing in advance) that will have materially adverse effects on its assets, liabilities, operation, shares and other legitimate rights.
(c) Cause any resolutions on the distribution of dividends or bonuses to be adopted at the shareholders’ meeting of Party C.
(d) Sell, assign, mortgage or otherwise dispose of any legal or beneficial interests on Party C’s shares or allow to create any other security interests thereon at any time economic losses directly arising from the effective date event of this Agreementdefault.
(e) Cause any sales, transfer, mortgage or otherwise disposal of any legal or beneficial interests on shares to be approved at the shareholders’ meeting of Party C, or allow to create any other security interests thereon, or adopt a shareholder resolution on the increase or decrease of Party C’s registered capital or otherwise modify the structure of the registered capital.
(f) Cause any merger or association of Party C with any persons to be approved at the shareholders’ meeting of Party C, or acquire investments from any persons or make an investment to any persons, or carry out reorganization in any other form.
(g) Cause any winding-up, liquidation or dissolution and other matters of Party C to be approved at the shareholders’ meeting of Party C.
3.2.7 Before Party A (or its designated third party) exercises its option and obtains all of Party C’s shares or assets, Grantors undertake that:
(a) They will forthwith notify Party A in writing of any suits, arbitration or administrative proceedings that have arisen or may arise in relation to the shares owned by them or of any circumstances that may have any adverse effect on such shares.
(b) They will cause the shareholders’ meeting of Party C to examine and approve the transfer of the purchased shares as specified in this Agreement, cause Party C to amend its articles of association so as to reflect any changes of Party C’s shares after Party A and/or its designated third party exercises the option according to this Agreement and other changes as set forth herein and immediately apply to the authorities of the PRC for approval (if required by law) and change of registration, and cause the shareholders’ meeting of Party C to approve and appoint such persons as designated by Party A and/or its designated third party as Party C’s director and legal representative (if necessary).
(c) Before Party A and/or its designated third party exercises the option, they will enter into all necessary or appropriate documents, take all necessary or appropriate actions and make all necessary or appropriate accusations or make all necessary and appropriate defenses for all claims in order to maintain their lawful and effective ownership over the appropriate shares.
(d) Upon Party A’s request at any time, they will unconditionally transfer their shares to Party A and/or its designated third party at the time specified by Party A and waive their right of first refusal against any other shareholders of Party C in respect of the above transfer of shares by them according to Party A’s instructions.
(e) They will strictly abide by this Agreement and other agreements jointly or severally entered into by and between Grantors and Party A, conscientiously perform their obligations under such agreements and will not do any acts/omissions that are likely to affect the validity and enforceability of such agreements.
3.3 Party C and Grantors hereby jointly and severally make the following representations, warranties and undertakings to Party A:
3.3.1 Except as agreed by Party A (or its designated third party) in writing, before Party A (or its designated third party) exercises its option and obtains all of Party C’s shares or interests, Party C shall not:
(a) Sell, assign, mortgage or otherwise dispose of any assets, business or incomes or allow to create any other security interests thereon (excluding those that arise in the ordinary or daily business course or have been disclosed to and agreed by Party A expressly in writing in advance);
(b) Enter into any transactions (excluding those that arise in the ordinary or daily business course or have been disclosed to and agreed by Party A expressly in writing in advance) that will or may have materially adverse effects on its assets, liabilities, operation, shares and other legitimate rights;
(c) Distribute any dividends or bonuses to each shareholder in any form;
(d) Incur, inherit, guarantee or allow the existence of any debts other than (i) any debts that arise in the ordinary or daily business course rather than by borrowing, and (ii) any debts that have been disclosed to and agreed by Party A expressly in writing in advance;
(e) Sign any significant contracts other than those signed in the ordinary business course (for the purpose of this Article, if the amount under a contract is more than RMB50,000, such contract shall be deemed to be a significant contract);
(f) Adopt a shareholder resolution on the increase or decrease of Party C’s registered capital or otherwise modify the structure of the registered capital;
(g) Supplement, modify or amend Party C’s articles of association in any form; and
(h) Enter into merge or association with any persons, or acquire investments from any persons or make an investment to any persons.
3.3.2 On the date of signing this Agreement and each Delivery Date, Party C has no outstanding debts other than (i) any debts arising in its ordinary business course; and (ii) any debts that have been disclosed to and agreed by Party A expressly in writing in advance.
3.3.3 On the date of signing this Agreement and each Delivery Date, there is no suit, arbitration or administrative proceedings that are ongoing or may occur in relation to the shares, Party C’s assets or that may have a substantial impact on the performance of this Agreement by Party C other than those that have been disclosed to and agreed by Party A expressly in writing in advance.
3.3.4 Party C has not been declared bankrupt.
3.3.5 Party C hereby undertakes to Party A that it will comply with all laws and regulations applicable to the acquisition of shares and assets within the term of this Agreement, bear all expenses arising out of the share transfer and handle all procedures necessary for enabling Party A or its designated third party to become Party C’s shareholder, including but not limited to assisting Party A in obtaining any necessary approvals in relation to the share transfer from the approval authorities, submitting the relevant applications required for handling the share change registration to the competent administrative department of industry and commerce and amending the register of shareholders.
Appears in 1 contract
Samples: Software Copyright Transfer Agreement (Loyalty Alliance Enterprise Corp)
REPRESENTATIONS, WARRANTIES AND UNDERTAKINGS. 3.1 The Grantors hereby jointly and severally make the following representations represent and warrantieswarrant that:
3.1.1 On 3.1.1. as of the date of signing this Agreement hereof and each Delivery Closing Date, each of the Grantors have has the powerspower, rightsright, authority and ability capacity to sign execute and deliver this Agreement and any share equity interest transfer agreement (hereinafter referred to as the “Transfer Agreement”) signed by them as executed in connection with each transfer of the equity interest contemplated hereunder to which it is a party thereto for each share transfer according to this Agreement party, and to perform their its obligations under this Agreement and any Transfer Agreement. This Once executed, this Agreement and any the Transfer Agreement to which they are it is a party shall will constitute their its legal, effective valid and binding obligations that are obligation and enforceable on them according to against it in accordance with its terms;
3.1.2. Neither the provisions thereof once signed.
3.1.2 No signing execution and delivery of this Agreement or nor the fulfillment of any of each Grantor’s obligations hereunder and under any Transfer Agreement and no performance by Grantors of their obligations under this Agreement or any Transfer Agreement shall will: (i) result in any a violation of any relevant applicable PRC laws and regulations of the PRCregulations; (ii) conflict with the articles of association or any other organizational documentsdocuments of Party C; (iii) result in any a breach of any binding agreements agreement or instruments instrument to which they are it is a party or by which it is bound, or constitute any a breach of contract under any binding agreements or instruments to which they are a partythereunder; (iv) result in any breach a violation of any licenses permit or approvals approval issued to it by the relevant competent government departments to themauthority; or (v) cause any licenses of its permits or approvals issued by the relevant competent government departments to them authority to be suspended suspended, cancelled or revoked or attached imposed with any additional conditions;
3.1.3 There is 3.1.3. there are currently no suitpending or threatened litigations, arbitration arbitrations or other judicial or administrative proceedings that are pending or may have a substantial impact on materially affect the performance of this Agreement or any Transfer Agreement.;
3.1.4 Grantors have 3.1.4. each Grantor has good and marketable ownership of all shares of the equity interests in Party C. There are no pledges, liabilities and other third party encumbrances on Party C’s shares held by Grantors other than Except for the pledge under the 2018 Equity Pledge Agreement., the equity interests held by the Grantors in Party C are free from any other pledge, liabilities or other third party encumbrances;
3.1.5 3.1.5. the Grantors have disclosed to Party A all circumstances that may have a material adverse effect on the performance of this Agreement.; and
3.1.6 The option 3.1.6. the Option is granted by the Grantors to Party A is exclusive, on an exclusive basis and Grantors have not otherwise granted any no other third party any other options option or similar rights before are granted by the Grantors in any other manner prior to or when granting concurrently with the option grant of Option to Party A.A hereunder.
3.2 The Grantors hereby jointly and severally make the following undertakingsundertake that:
3.2.1 Within 3.2.1. unless provided under the 2018 Equity Pledge Agreement, none of them will create any pledge, liabilities or other third party encumbrances on the equity interests they hold in Party C (for the benefits of a third person other than the Parties), nor will they transfer, grant or otherwise dispose of the equity interests they hold to any third person other than the Parties hereto;
3.2.2. none of them will grant any other third party with an option or a similar right in any other manner throughout the term of this Agreement, Grantors will not create any pledges, liabilities and any other third party encumbrances on Party C’s shares held by them other than those under the Equity Pledge Agreement separately signed by Grantors and Party A nor transfer, donate or otherwise dispose of any shares held by them to any third party other than the Parties to this Agreement.;
3.2.2 Within 3.2.3. throughout the term of this Agreementhereof, Grantors will not otherwise grant any other options or similar rights to any third party.
3.2.3 Within the term of this Agreement, Grantors will cause and ensure that the business carried out by Party C conforms to conducts its business in compliance with the applicable laws, regulations, rules and other management regulations rules and documents issued promulgated by the competent government departments authorities, and that there are is no breach violation of the above provisions foregoing stipulation that results in a major may have material adverse impact effect on the business conduct or assets of the company.;
3.2.4 Grantors 3.2.4. they will follow the sound financial and commercial standards and practices to maintain the valid existence of Party C in accordance with good financial C, diligently and commercial standards and practices, operate their effectively carry out its business and deal with affairs in a prudent and efficient mannerits matters, use their best efforts to obtain and maintain any the permits, licenses and approvals necessary for Party C’s continuous operation its continued operation, and ensure make sure that any such permits, licenses and approvals will not be canceled, withdrawn or declared null and void.invalid;
3.2.5 Grantors 3.2.5. they will provide Party A with all materials relating to Party C’s operation operations and financial information at Party A’s matters upon its request.;
3.2.6 Except as expressly agreed by 3.2.6. unless and until Party A (or its designated third party) in writinghas exercised the Option to acquire all equity interests or assets of Party C, before except with an express written consent from Party A (or its designated third party) exercises its option and obtains all ), none of Party C’s shares or assetsthe Grantors may, Grantors shall not jointly or individuallyseverally:
(a) Supplement supplement, change or modify amend the articles of association of Party C’s constitutional documents C in any form, and such supplements, alterations or modifications will way that may have substantial material adverse effects effect on any the assets, responsibilitiesliabilities, operationoperations, shares equity and other legal legitimate rights of Party C (excluding other than the same proportion of corresponding pro-rata capital increase for to satisfy the purpose requirements of meeting the legal requirementslaw) or may affect the effective performance of this Agreement and such other agreements signed entered into by and between Party A, the Grantors and Party C.C;
(b) Cause cause Party C to enter into conclude or do conduct any transactions transaction or acts act that will have material adverse effect on the assets, liabilities, operations, equity and other legitimate rights of Party C (excluding other than those that arise arising in the ordinary or daily day-to-day course of business course or that have been disclosed to and agreed by Party A expressly in writing in advance) that will have materially adverse effects on its assets, liabilities, operation, shares and other legitimate rights.obtained the prior express written consent of Party A);
(c) Cause any resolutions on the distribution of dividends or bonuses to be adopted at the shareholders’ meeting of Party C.
(d) Sell, assign, mortgage or otherwise dispose of any legal or beneficial interests on Party C’s shares or allow to create any other security interests thereon at any time from the effective date of this Agreement.
(e) Cause any sales, transfer, mortgage or otherwise disposal of any legal or beneficial interests on shares to be approved at the shareholders’ meeting of Party C, or allow to create any other security interests thereon, or adopt a shareholder resolution on the increase or decrease of Party C’s registered capital or otherwise modify the structure of the registered capital.
(f) Cause any merger or association of Party C with any persons to be approved at the shareholders’ meeting of Party C, or acquire investments from any persons or make an investment to any persons, or carry out reorganization in any other form.
(g) Cause any winding-up, liquidation or dissolution and other matters of Party C to be approved at the shareholders’ meeting of Party C.
3.2.7 Before Party A (or its designated third party) exercises its option and obtains all of Party C’s shares or assets, Grantors undertake that:
(a) They will forthwith notify Party A in writing of any suits, arbitration or administrative proceedings that have arisen or may arise in relation to the shares owned by them or of any circumstances that may have any adverse effect on such shares.
(b) They will cause the shareholders’ meeting of Party C to examine adopt a resolution of dividend or bonus distribution;
(d) sell, transfer, mortgage and approve the transfer otherwise dispose of the purchased shares as specified legal or beneficial interests of any equity interest in this Agreement, cause Party C to amend its articles of association so as to reflect any changes of Party C’s shares after Party A and/or its designated third party exercises , or permit the option according to this Agreement and creation of any other changes as set forth herein and immediately apply to security interest thereupon, at any time following the authorities of the PRC for approval effective date hereof;
(if required by lawe) and change of registration, and cause the shareholders’ meeting of Party C to approve the sale, transfer, mortgage or other disposal of the legal or beneficial interests of any equity interest, or the permission of the creation of any other security interest thereupon, or to adopt a resolution to increase or decrease the registered capital of Party C or otherwise change the structure of its registered capital;
(f) cause the shareholders’ meeting of Party C to approve Party C’s merger or combination with, or acquisition of, or investment in any person, or restructuring in any other form; and
(g) cause the shareholders’ meeting of Party C to approve the closure, liquidation or dissolution of Party C.
3.2.7. unless and appoint until Party A (or its designated third party) has exercised the Option to acquire all equity interests or assets of Party C, each of the Grantors undertakes to:
(a) immediately notify Party A in writing of any existing or threatened litigation, arbitration or administrative proceeding relating to the equity interest it owns or any circumstance that may have any adverse effect on such equity interest;
(b) cause the shareholders’ meeting of Party C to deliberate and approve the transfer of the purchased equity interest contemplated hereunder, and cause Party C to amend its articles of association to reflect the shareholding change and other changes contemplated hereunder of Party C following the exercise of Option by Party A and/or its designated third party in accordance with this Agreement, and to immediately apply for approval to competent PRC authorities (if so required by PRC laws) and handle the change registration, and cause Party C to adopt a shareholders’ resolution to approve the appointment of persons as designated assigned by Party A and/or its designated third party as Party C’s director directors and legal representative (if necessary).) of Party C;
(c) Before prior to the exercise of Option by Party A and/or its designated third party exercises the optionparty, they will enter into execute all necessary or appropriate such documents, take all necessary or appropriate such actions and make all such claims or provide such defenses against all claims as are necessary or appropriate accusations or make all necessary and appropriate defenses for all claims in order to maintain their lawful the Grantors’ legal and effective valid ownership over of the appropriate shares.relevant equity interests;
(d) Upon at the request of Party A’s request A at any time, they will unconditionally transfer their shares the equity interests it holds to Party A and/or its designated third party at within the period of time specified prescribed by Party A A, and waive their the right of first refusal against any it may have on the equity interest transferred by other then shareholders of Party C in respect of the above transfer of shares as instructed by them according to Party A’s instructions.; and
(e) They will strictly abide by comply with the provisions of this Agreement and other agreements jointly or severally entered into executed by and between the Grantors and with Party A, conscientiously perform their diligently fulfil the obligations under such agreements hereunder and will not do thereunder, and refrain from making any actsact/omissions omission that are likely suffices to affect the validity and enforceability of such agreements.
3.3 Party C and the Grantors hereby jointly and severally make the following representationsrepresent, warranties warrant and undertakings to Party Acovenant that:
3.3.1 Except as agreed by 3.3.1. unless and until Party A (or its designated third party) in writinghas exercised the Option to acquire all equity interests or assets of Party C, before except with an express written consent from Party A (or its designated third party) exercises its option and obtains all of Party C’s shares or interests), Party C shall may not:
(a) Sellsell, assigntransfer, mortgage or otherwise dispose of any of its assets, business or incomes revenue, or allow to create permit the creation of any other security interests thereon interest thereupon (excluding other than those that arise arising in the ordinary or daily day-to-day course of business course or that have been disclosed to and agreed by Party A expressly in writing in advanceand obtained the prior express written consent of Party A);
(b) Enter into conclude any transactions (excluding those that arise in the ordinary or daily business course or have been disclosed to and agreed by Party A expressly in writing in advance) transaction that will or may have materially material adverse effects effect on its assets, liabilities, operationoperations, shares equity and other legitimate rightsrights (other than those arising in the ordinary or day-to-day course of business or that have been disclosed to Party A and obtained the prior express written consent of Party A);
(c) Distribute distribute any dividends dividend or bonuses bonus by any means to each shareholder in any formof its shareholders;
(d) Incurincur, inherit, guarantee or allow the existence of any debts other than debt, except for (i) any debts that arise in the debt incurred during its ordinary or daily course of business course rather than by from borrowing, ; and (ii) any debts that have debt which has been disclosed to and agreed by obtained the written consent from Party A expressly in writing in advanceA;
(e) Sign enter into any significant contracts material contract, other than those signed executed in the ordinary course of business course (for the purpose of this ArticleSection, if the amount under a contract is more than RMB50,000, such contract with a value exceeding RMB50,000 shall be deemed to be as a significant material contract);
(f) Adopt adopt a shareholder shareholders’ resolution on the to increase or decrease of Party C’s its registered capital, or otherwise change its registered capital or otherwise modify the structure of the registered capitalstructure;
(g) Supplementsupplement, modify change or amend Party C’s its articles of association in any formform whatsoever; and
(h) Enter into merge or association with combine with, acquire or invest any persons, or acquire investments from any persons or make an investment to any personsperson.
3.3.2 On 3.3.2. As of the date hereof and as of signing this Agreement and each Delivery Closing Date, Party C has no outstanding debts other than debt, except for those (i) any debts arising in incurred during its ordinary business course; course of business, and (ii) any debts that have been disclosed to and agreed by obtained the written consent from Party A expressly in writing in advance.A.
3.3.3 On 3.3.3. As of the date hereof and as of signing this Agreement and each Delivery Closing Date, there is are no suitpending or threatened litigations, arbitration arbitrations or administrative proceedings that are ongoing or may occur in relation relating to the shares, equity interests or assets of Party C or that may otherwise have material adverse effect on Party C’s assets or that may have a substantial impact on the performance of this Agreement by Party C other than except for those that have been disclosed to and agreed by obtained the written consent from Party A expressly in writing in advance.A.
3.3.4 3.3.4. Party C has is not been declared bankrupt.;
3.3.5 3.3.5. Party C hereby undertakes to Party A that it will comply with all laws and regulations applicable to the acquisition of shares equity interests and assets within asset purchase throughout the term of this Agreement, bear all expenses arising out in connection with the transfer of the share transfer equity interests, and handle go through all necessary procedures necessary for enabling to register Party A or its designated third party to become as shareholder of Party C’s shareholder, including but not limited to without limitation assisting Party A in obtaining any necessary approvals in relation to the share transfer from the approval authoritiesauthority in respect of the transfer of equity interests, submitting the filing relevant applications required application documents necessary for handling the share shareholding change registration to the competent administrative department of industry Administration for Industry and commerce Commerce, and amending updating the register of shareholders.
Appears in 1 contract
Samples: Option Agreement (PPDAI Group Inc.)
REPRESENTATIONS, WARRANTIES AND UNDERTAKINGS. 3.1 Grantors jointly Each Party hereto hereby represents, warrants and severally make the following representations and warrantiesundertakes that:
3.1.1 On the date of signing this Agreement (1) It is a corporate entity duly incorporate and each Delivery Date, Grantors have the powers, rights, validly existing under relevant laws;
(2) It has all power and authority and ability required to sign and deliver this Agreement and any share transfer agreement (hereinafter referred to as “Transfer Agreement”) signed by them as a party thereto for each share transfer according to this Agreement and to perform their all obligations under contained herein;
(3) Its representative signing this Agreement either holds valid Letters of Authorization, or holds valid Authorization from the Board of Directors when signing this Agreement;
(4) Once entered, this Agreement and any Transfer Agreement. This Agreement and any Transfer Agreement to which they its Appendixes are a party shall constitute their legal, effective and legally binding obligations on it..
3.2 Party A warrants that are enforceable on them according it legally holds all rights to the provisions thereof once signedTrademarks. Party A also warrants that it has the right to authorize the Licensed Parties to use the Trademarks.
3.1.2 No signing and delivery of this Agreement or any Transfer Agreement and no performance by Grantors of their obligations under this Agreement or any Transfer Agreement shall (i) result in any violation of any relevant laws and regulations of 3.3 Throughout the PRC; (ii) conflict with the articles of association or other organizational documents; (iii) result in any breach of any binding agreements or instruments to which they are a party or constitute any breach of contract under any binding agreements or instruments to which they are a party; (iv) result in any breach of any licenses or approvals issued by the relevant competent government departments to them; or (v) cause any licenses or approvals issued by the relevant competent government departments to them to be suspended or revoked or attached with any conditions;
3.1.3 There is no suit, arbitration or other judicial or administrative proceedings that are pending or may have a substantial impact on the performance of this Agreement or any Transfer Agreement.
3.1.4 Grantors have good and marketable ownership of all shares of Party C. There are no pledges, liabilities and other third party encumbrances on Party C’s shares held by Grantors other than the pledge under the Equity Pledge Agreement.
3.1.5 Grantors have disclosed to Party A all circumstances that may have a material adverse effect on the performance of this Agreement.
3.1.6 The option granted by Grantors to Party A is exclusive, and Grantors have not otherwise granted any third party any other options or similar rights before or when granting the option to Party A.
3.2 Grantors jointly and severally make the following undertakings:
3.2.1 Within the term valid period of this Agreement, Grantors will not create any pledges, liabilities and any other third party encumbrances on Party C’s shares held by them other than those under the Equity Pledge Agreement separately signed by Grantors and Party A nor transfershall maintain and renew the Trademark registrations. Party A shall pay all associated costs, donate or otherwise dispose and process all necessary paperwork, to preserve the user status of any shares held by them the Licensed Parties, and to any third party other than enable the Licensed Parties to this Agreementlegally use the Trademarks.
3.2.2 Within 3.4 Party A shall take all appropriate measures to protect its ownership of the term Trademarks. Party A undertakes not to perform any intentional measures to impair the validity of its Trademark ownership.
3.5 No provision under this Agreement shall be construed as Party A is selling or transferring its Trademarks to the Licensed Parties. Except for the right to use the Trademarks in accordance with the provisions of this Agreement, Grantors will this Agreement grants the Licensed Parties no other rights and entitlements. The Licensed Parties acknowledges that Party A holds the exclusive rights to the Trademarks. Such exclusive rights include but are not otherwise grant any limited to the ownership, registration, application and other options associated rights of the Trademarks. The Licensed Parties shall not, prior to obtaining written consent from Party A, be entitled to register the same or similar rights to any third partyTrademarks, service identity, other names, marks, characters, or packaging, configuration, colors, designs or symbols.
3.2.3 Within 3.6 Party A has the term right to prohibit the Licensed Parties from performing any deeds that contradicts with any provisions of this Agreement, Grantors will cause and ensure that . Party A has the business carried out by Party C conforms right to take necessary legal actions to protect its rights to the applicable laws, regulations, rules and other management regulations and documents issued by the competent government departments and that there are no breach of the above provisions that results in a major adverse impact on the business or assets of the companyTrademarks.
3.2.4 Grantors will maintain 3.7 In order to protect the valid existence of Party C in accordance with good financial and commercial standards and practicesTrademark, operate their business and deal with affairs in a prudent and efficient manner, use their best efforts the Licensed Parties agree to obtain and maintain any permits, licenses and approvals necessary for Party C’s continuous operation and ensure that any such permits, licenses and approvals will not be canceled, withdrawn or declared null and void.
3.2.5 Grantors will provide all reasonable assistance to Party A with all Party C’s operation and financial information at or Party A’s requestrepresentatives. Assistance includes providing any information or documents, and not to take any actions to obstruct or impede Party A or its representative to register or maintain these or other Trademarks.
3.2.6 Except as expressly agreed by Party A (or its designated third party) 3.8 Both Parties agree, after this Agreement is entered, to unconditionally sign all other relevant legal documents and to take all actions in writing, before Party A (or its designated third party) exercises its option and obtains all order to realize the objectives of Party C’s shares or assets, Grantors shall this Agreement. Actions include but are not jointly or individually:
(a) Supplement or modify Party C’s constitutional limited to preparing documents in any form, and such supplements, alterations or modifications will have substantial adverse effects on any assets, responsibilities, operation, shares and other legal rights of Party C (excluding the same proportion of capital increase for the purpose Trademark Division of meeting the legal requirementsState Administration for Industry and Commerce within three (3) or may affect the effective performance months of execution of this Agreement and other agreements signed by Party A, Grantors and Party C.
(b) Cause Party C to enter into or do any transactions or acts (excluding those that arise in the ordinary or daily business course or have been disclosed to and agreed by Party A expressly in writing in advance) that will have materially adverse effects on its assets, liabilities, operation, shares and other legitimate rightsconducting public announcements.
(c) Cause any resolutions on the distribution of dividends or bonuses to be adopted at the shareholders’ meeting of Party C.
(d) Sell, assign, mortgage or otherwise dispose of any legal or beneficial interests on Party C’s shares or allow to create any other security interests thereon at any time from the effective date of this Agreement.
(e) Cause any sales, transfer, mortgage or otherwise disposal of any legal or beneficial interests on shares to be approved at the shareholders’ meeting of Party C, or allow to create any other security interests thereon, or adopt a shareholder resolution on the increase or decrease of Party C’s registered capital or otherwise modify the structure of the registered capital.
(f) Cause any merger or association of Party C with any persons to be approved at the shareholders’ meeting of Party C, or acquire investments from any persons or make an investment to any persons, or carry out reorganization in any other form.
(g) Cause any winding-up, liquidation or dissolution and other matters of Party C to be approved at the shareholders’ meeting of Party C.
3.2.7 Before Party A (or its designated third party) exercises its option and obtains all of Party C’s shares or assets, Grantors undertake that:
(a) They will forthwith notify Party A in writing of any suits, arbitration or administrative proceedings that have arisen or may arise in relation to the shares owned by them or of any circumstances that may have any adverse effect on such shares.
(b) They will cause the shareholders’ meeting of Party C to examine and approve the transfer of the purchased shares as specified in this Agreement, cause Party C to amend its articles of association so as to reflect any changes of Party C’s shares after Party A and/or its designated third party exercises the option according to this Agreement and other changes as set forth herein and immediately apply to the authorities of the PRC for approval (if required by law) and change of registration, and cause the shareholders’ meeting of Party C to approve and appoint such persons as designated by Party A and/or its designated third party as Party C’s director and legal representative (if necessary).
(c) Before Party A and/or its designated third party exercises the option, they will enter into all necessary or appropriate documents, take all necessary or appropriate actions and make all necessary or appropriate accusations or make all necessary and appropriate defenses for all claims in order to maintain their lawful and effective ownership over the appropriate shares.
(d) Upon Party A’s request at any time, they will unconditionally transfer their shares to Party A and/or its designated third party at the time specified by Party A and waive their right of first refusal against any other shareholders of Party C in respect of the above transfer of shares by them according to Party A’s instructions.
(e) They will strictly abide by this Agreement and other agreements jointly or severally entered into by and between Grantors and Party A, conscientiously perform their obligations under such agreements and will not do any acts/omissions that are likely to affect the validity and enforceability of such agreements.
3.3 Party C and Grantors hereby jointly and severally make the following representations, warranties and undertakings to Party A:
3.3.1 Except as agreed by Party A (or its designated third party) in writing, before Party A (or its designated third party) exercises its option and obtains all of Party C’s shares or interests, Party C shall not:
(a) Sell, assign, mortgage or otherwise dispose of any assets, business or incomes or allow to create any other security interests thereon (excluding those that arise in the ordinary or daily business course or have been disclosed to and agreed by Party A expressly in writing in advance);
(b) Enter into any transactions (excluding those that arise in the ordinary or daily business course or have been disclosed to and agreed by Party A expressly in writing in advance) that will or may have materially adverse effects on its assets, liabilities, operation, shares and other legitimate rights;
(c) Distribute any dividends or bonuses to each shareholder in any form;
(d) Incur, inherit, guarantee or allow the existence of any debts other than (i) any debts that arise in the ordinary or daily business course rather than by borrowing, and (ii) any debts that have been disclosed to and agreed by Party A expressly in writing in advance;
(e) Sign any significant contracts other than those signed in the ordinary business course (for the purpose of this Article, if the amount under a contract is more than RMB50,000, such contract shall be deemed to be a significant contract);
(f) Adopt a shareholder resolution on the increase or decrease of Party C’s registered capital or otherwise modify the structure of the registered capital;
(g) Supplement, modify or amend Party C’s articles of association in any form; and
(h) Enter into merge or association with any persons, or acquire investments from any persons or make an investment to any persons.
3.3.2 On the date of signing this Agreement and each Delivery Date, Party C has no outstanding debts other than (i) any debts arising in its ordinary business course; and (ii) any debts that have been disclosed to and agreed by Party A expressly in writing in advance.
3.3.3 On the date of signing this Agreement and each Delivery Date, there is no suit, arbitration or administrative proceedings that are ongoing or may occur in relation to the shares, Party C’s assets or that may have a substantial impact on the performance of this Agreement by Party C other than those that have been disclosed to and agreed by Party A expressly in writing in advance.
3.3.4 Party C has not been declared bankrupt.
3.3.5 Party C hereby undertakes to Party A that it will comply with all laws and regulations applicable to the acquisition of shares and assets within the term of this Agreement, bear all expenses arising out of the share transfer and handle all procedures necessary for enabling Party A or its designated third party to become Party C’s shareholder, including but not limited to assisting Party A in obtaining any necessary approvals in relation to the share transfer from the approval authorities, submitting the relevant applications required for handling the share change registration to the competent administrative department of industry and commerce and amending the register of shareholders.
Appears in 1 contract
Samples: Trademark Licensing Agreement (China Netcom Group CORP (Hong Kong) LTD)
REPRESENTATIONS, WARRANTIES AND UNDERTAKINGS. 3.1 The Grantors hereby jointly and severally make the following representations represent and warrantieswarrant that:
3.1.1 On 3.1.1. as of the execution date of signing this Agreement hereof and each Delivery Closing Date, each of the Grantors have has the powerspower, rightsright, authority and ability capacity to sign execute and deliver this Agreement and any share equity interest transfer agreement (hereinafter referred to as the “Transfer Agreement”) signed by them as executed in connection with each transfer of the equity interest contemplated hereunder to which it is a party thereto for each share transfer according to this Agreement party, and to perform their its obligations under this Agreement and any Transfer Agreement. This Once executed, this Agreement and any the Transfer Agreement to which they are it is a party shall will constitute their its legal, effective valid and binding obligations that are obligation and enforceable on them according to against it in accordance with its terms;
3.1.2. Neither the provisions thereof once signed.
3.1.2 No signing execution and delivery of this Agreement or nor the fulfillment of any of each Grantor’s obligations hereunder and under any Transfer Agreement and no performance by Grantors of their obligations under this Agreement or any Transfer Agreement shall will: (i) result in any a violation of any relevant applicable PRC laws and regulations of the PRCregulations; (ii) conflict with the articles of association or any other organizational documentsdocuments of Party C; (iii) result in any a breach of any binding agreements agreement or instruments instrument to which they are it is a party or by which it is bound, or constitute any a breach of contract under any binding agreements or instruments to which they are a partythereunder; (iv) result in any breach a violation of any licenses permit or approvals approval issued to it by the relevant competent government departments to themauthority; or (v) cause any licenses of its permits or approvals issued by the relevant competent government departments to them authority to be suspended suspended, canceled or revoked or attached imposed with any additional conditions;
3.1.3 There is 3.1.3. there are currently no suitpending or threatened litigations, arbitration arbitrations or other judicial or administrative proceedings that are pending or may have a substantial impact on materially affect the performance of this Agreement or any Transfer Agreement.;
3.1.4 Grantors have 3.1.4. each Grantor has good and marketable ownership of all shares of the equity interests in Party C. There are no pledges, liabilities and other third party encumbrances on Party C’s shares held by Grantors other than Except for the pledge under the Restated Equity Pledge Agreement.Interest Pledge, the equity interests held by the Grantors in Party C are free from any other pledge, liabilities or other third party encumbrances;
3.1.5 3.1.5. the Grantors have disclosed to Party A all circumstances that may have a material adverse effect on the performance of this Agreement.; and
3.1.6 The option 3.1.6. the Option is granted by the Grantors to Party A is exclusive, on an exclusive basis and Grantors have not otherwise granted any no other third party any other options option or similar rights before are granted by the Grantors in any other manner prior to or when granting concurrently with the option grant of Option to Party A.A hereunder.
3.2 The Grantors hereby jointly and severally make the following undertakingsundertake that:
3.2.1 Within 3.2.1. none of them will create any pledge, liabilities or other third party encumbrances on the equity interests they hold in Party C (for the benefits of a third person other than the Parties), nor will they transfer, give away or otherwise dispose of the equity interests they hold to a third person other than the Parties hereto;
3.2.2. none of them will grant any other third party with an option or a similar right in any other manner throughout the term of this Agreement, Grantors will not create any pledges, liabilities and any other third party encumbrances on Party C’s shares held by them other than those under the Equity Pledge Agreement separately signed by Grantors and Party A nor transfer, donate or otherwise dispose of any shares held by them to any third party other than the Parties to this Agreement.;
3.2.2 Within 3.2.3. throughout the term of this Agreementhereof, Grantors will not otherwise grant any other options or similar rights to any third party.
3.2.3 Within the term of this Agreement, Grantors will cause and ensure procure that the business carried out by Party C conforms to conducts its business in compliance with the applicable laws, regulations, rules and other management regulations rules and documents issued promulgated by the competent government departments authorities, and that there are is no breach violation of the above provisions foregoing stipulation that results in a major may have material adverse impact effect on the business conduct or assets of the company.;
3.2.4 Grantors 3.2.4. they will follow the sound financial and commercial standards and practices to maintain the valid existence of Party C in accordance with good financial C, diligently and commercial standards and practices, operate their effectively carry out its business and deal with affairs in a prudent and efficient mannerits matters, use their best efforts to obtain and maintain any the permits, licenses and approvals necessary for Party C’s continuous operation its continued operation, and ensure make sure that any such permits, licenses and approvals will not be canceled, withdrawn or declared null and void.invalid;
3.2.5 Grantors 3.2.5. they will provide Party A with all materials relating to Party C’s operation operations and financial information at Party A’s matters upon its request.;
3.2.6 Except as expressly agreed by 3.2.6. unless and until Party A (or its designated third party) in writinghas exercised the Option to acquire all equity interests or assets of Party C, before except with an express written consent from Party A (or its designated third party) exercises its option and obtains all ), none of Party C’s shares or assetsthe Grantors may, Grantors shall not jointly or individuallyseverally:
(a) Supplement supplement, change or modify amend the articles of association of Party C’s constitutional documents C in any form, and such supplements, alterations or modifications will way that may have substantial material adverse effects effect on any the assets, responsibilitiesliabilities, operationoperations, shares equity and other legal legitimate rights of Party C (excluding other than the same proportion of corresponding pro-rata capital increase for to satisfy the purpose requirements of meeting the legal requirementslaw) or may affect the effective performance of this Agreement and such other agreements signed entered into by and between Party A, the Grantors and Party C.C;
(b) Cause cause Party C to enter into conclude or do conduct any transactions transaction or acts act that will have material adverse effect on the assets, liabilities, operations, equity and other legitimate rights of Party C (excluding other than those that arise arising in the ordinary or daily day-to-day course of business course or that have been disclosed to and agreed by Party A expressly in writing in advance) that will have materially adverse effects on its assets, liabilities, operation, shares and other legitimate rights.obtained the prior express written consent of Party A);
(c) Cause any resolutions on the distribution of dividends or bonuses to be adopted at the shareholders’ meeting of Party C.
(d) Sell, assign, mortgage or otherwise dispose of any legal or beneficial interests on Party C’s shares or allow to create any other security interests thereon at any time from the effective date of this Agreement.
(e) Cause any sales, transfer, mortgage or otherwise disposal of any legal or beneficial interests on shares to be approved at the shareholders’ meeting of Party C, or allow to create any other security interests thereon, or adopt a shareholder resolution on the increase or decrease of Party C’s registered capital or otherwise modify the structure of the registered capital.
(f) Cause any merger or association of Party C with any persons to be approved at the shareholders’ meeting of Party C, or acquire investments from any persons or make an investment to any persons, or carry out reorganization in any other form.
(g) Cause any winding-up, liquidation or dissolution and other matters of Party C to be approved at the shareholders’ meeting of Party C.
3.2.7 Before Party A (or its designated third party) exercises its option and obtains all of Party C’s shares or assets, Grantors undertake that:
(a) They will forthwith notify Party A in writing of any suits, arbitration or administrative proceedings that have arisen or may arise in relation to the shares owned by them or of any circumstances that may have any adverse effect on such shares.
(b) They will cause the shareholders’ meeting of Party C to examine adopt a resolution of dividend or bonus distribution;
(d) sell, transfer, mortgage and approve the transfer otherwise dispose of the purchased shares as specified legal or beneficial interests of any equity interest in this Agreement, cause Party C to amend its articles of association so as to reflect any changes of Party C’s shares after Party A and/or its designated third party exercises , or permit the option according to this Agreement and creation of any other changes as set forth herein and immediately apply to security interest thereupon, at any time following the authorities of the PRC for approval effective date hereof;
(if required by lawe) and change of registration, and cause the shareholders’ meeting of Party C to approve the sale, transfer, mortgage or other disposal of the legal or beneficial interests of any equity interest, or the permission of the creation of any other security interest thereupon, or to adopt a resolution to increase or decrease the registered capital of Party C or otherwise change the structure of its registered capital;
(f) cause the shareholders’ meeting of Party C to approve Party C’s merger or combination with, or acquisition of, or investment in any person, or restructuring in any other form; and
(g) cause the shareholders’ meeting of Party C to approve the closure, liquidation or dissolution of Party C.
3.2.7. unless and appoint until Party A (or its designated third party) has exercised the Option to acquire all equity interests or assets of Party C, each of the Grantors undertakes to:
(a) immediately notify Party A in writing of any existing or threatened litigation, arbitration or administrative proceeding relating to the equity interest it owns or any circumstance that may have any adverse effect on such equity interest;
(b) cause the shareholders’ meeting of Party C to deliberate and approve the transfer of the purchased equity interest contemplated hereunder, and cause Party C to amend its articles of association to reflect the shareholding change and other changes contemplated hereunder of Party C following the exercise of Option by Party A and/or its designated third party in accordance with this Agreement, and to immediately apply for approval to competent PRC authorities (if so required by PRC laws) and handle the change registration, and cause Party C to adopt a shareholders’ resolution to approve the appointment of persons as designated assigned by Party A and/or its designated third party as Party C’s director directors and legal representative (if necessary).) of Party C;
(c) Before prior to the exercise of Option by Party A and/or its designated third party exercises the optionparty, they will enter into execute all necessary or appropriate such documents, take all necessary or appropriate such actions and make all such claims or provide such defenses against all claims as are necessary or appropriate accusations or make all necessary and appropriate defenses for all claims in order to maintain their lawful the Grantors’ legal and effective valid ownership over of the appropriate shares.relevant equity interests;
(d) Upon at the request of Party A’s request A at any time, they will unconditionally transfer their shares the equity interests it holds to Party A and/or its designated third party at within the period of time specified prescribed by Party A A, and waive their the right of first refusal against any it may have on the equity interest transferred by other then-current shareholders of Party C in respect of the above transfer of shares as instructed by them according to Party A’s instructions.; and
(e) They will strictly abide by comply with the provisions of this Agreement and other agreements jointly or severally entered into executed by and between the Grantors and with Party A, conscientiously perform their diligently fulfill the obligations under such agreements hereunder and will not do thereunder, and refrain from making any actsact/omissions omission that are likely suffices to affect the validity and enforceability of such agreements.
3.3 Party C and the Grantors hereby jointly and severally make the following representationsrepresent, warranties warrant and undertakings to Party Acovenant that:
3.3.1 Except as agreed by 3.3.1. unless and until Party A (or its designated third party) in writinghas exercised the Option to acquire all equity interests or assets of Party C, before except with an express written consent from Party A (or its designated third party) exercises its option and obtains all of Party C’s shares or interests), Party C shall may not:
(a) Sellsell, assigntransfer, mortgage or otherwise dispose of any of its assets, business or incomes revenue, or allow to create permit the creation of any other security interests thereon interest thereupon (excluding other than those that arise arising in the ordinary or daily day-to-day course of business course or that have been disclosed to and agreed by Party A expressly in writing in advanceand obtained the prior express written consent of Party A);
(b) Enter into conclude any transactions (excluding those that arise in the ordinary or daily business course or have been disclosed to and agreed by Party A expressly in writing in advance) transaction that will or may have materially material adverse effects effect on its assets, liabilities, operationoperations, shares equity and other legitimate rightsrights (other than those arising in the ordinary or day-to-day course of business or that have been disclosed to Party A and obtained the prior express written consent of Party A);
(c) Distribute distribute any dividends dividend or bonuses bonus by any means to each shareholder in any formof its shareholders;
(d) Incurincur, inherit, guarantee or allow the existence of any debts other than debt, except for (i) any debts that arise in the debt incurred during its ordinary or daily course of business course rather than by from borrowing, ; and (ii) any debts that have debt which has been disclosed to and agreed by obtained the written consent from Party A expressly in writing in advanceA;
(e) Sign enter into any significant contracts material contract, other than those signed executed in the ordinary course of business course (for the purpose of this ArticleSection, if the amount under a contract is more than RMB50,000, such contract with a value exceeding RMB [fifty thousand Yuan (RMB 50,000) shall be deemed to be as a significant material contract);
(f) Adopt adopt a shareholder shareholders’ resolution on the to increase or decrease of Party C’s its registered capital, or otherwise change its registered capital or otherwise modify the structure of the registered capitalstructure;
(g) Supplementsupplement, modify change or amend Party C’s its articles of association in any formform whatsoever; and
(h) Enter into merge or association with combine with, acquire or invest any persons, or acquire investments from any persons or make an investment to any personsperson.
3.3.2 On 3.3.2. As of the date hereof and as of signing this Agreement and each Delivery Closing Date, Party C has no outstanding debts other than debt, except for those (i) any debts arising in incurred during its ordinary business course; course of business, and (ii) any debts that have been disclosed to and agreed by obtained the written consent from Party A expressly in writing in advance.A.
3.3.3 On 3.3.3. As of the date hereof and as of signing this Agreement and each Delivery Closing Date, there is are no suitpending or threatened litigations, arbitration arbitrations or administrative proceedings that are ongoing or may occur in relation relating to the shares, equity interests or assets of Party C or that may otherwise have material adverse effect on Party C’s assets or that may have a substantial impact on the performance of this Agreement by Party C other than except for those that have been disclosed to and agreed by obtained the written consent from Party A expressly in writing in advance.A.
3.3.4 3.3.4. Party C has is not been declared bankrupt.;
3.3.5 3.3.5. Party C hereby undertakes to Party A that it will comply with all laws and regulations applicable to the acquisition of shares equity interests and assets within asset purchase throughout the term of this Agreement, bear all expenses arising out in connection with the transfer of the share transfer equity interests, and handle go through all necessary procedures necessary for enabling to register Party A or its designated third party to become as shareholder of Party C’s shareholder, including but not limited to without limitation assisting Party A in obtaining any necessary approvals in relation to the share transfer from the approval authoritiesauthority in respect of the transfer of equity interests, submitting the filing relevant applications required application documents necessary for handling the share shareholding change registration to the competent administrative department of industry Administration for Industry and commerce Commerce, and amending updating the register of shareholders.
Appears in 1 contract
Samples: Option Agreement (PPDAI Group Inc.)
REPRESENTATIONS, WARRANTIES AND UNDERTAKINGS. 3.1 The Grantors hereby jointly and severally make the following representations represent and warrantieswarrant that:
3.1.1 On 3.1.1. as of the execution date of signing this Agreement hereof and each Delivery Closing Date, each of the Grantors have has the powerspower, rightsright, authority and ability capacity to sign execute and deliver this Agreement and any share equity interest transfer agreement (hereinafter referred to as the “Transfer Agreement”) signed by them as executed in connection with each transfer of the equity interest contemplated hereunder to which it is a party thereto for each share transfer according to this Agreement party, and to perform their its obligations under this Agreement and any Transfer Agreement. This Once executed, this Agreement and any the Transfer Agreement to which they are it is a party shall will constitute their its legal, effective valid and binding obligations that are obligation and enforceable on them according to against it in accordance with its terms;
3.1.2. Neither the provisions thereof once signed.
3.1.2 No signing execution and delivery of this Agreement or nor the fulfillment of any of each Grantor’s obligations hereunder and under any Transfer Agreement and no performance by Grantors of their obligations under this Agreement or any Transfer Agreement shall will: (i) result in any a violation of any relevant applicable PRC laws and regulations of the PRCregulations; (ii) conflict with the articles of association or any other organizational documentsdocuments of Party C; (iii) result in any a breach of any binding agreements agreement or instruments instrument to which they are it is a party or by which it is bound, or constitute any a breach of contract under any binding agreements or instruments to which they are a partythereunder; (iv) result in any breach a violation of any licenses permit or approvals approval issued to it by the relevant competent government departments to themauthority; or (v) cause any licenses of its permits or approvals issued by the relevant competent government departments to them authority to be suspended suspended, canceled or revoked or attached imposed with any additional conditions;
3.1.3 There is 3.1.3. there are currently no suitpending or threatened litigations, arbitration arbitrations or other judicial or administrative proceedings that are pending or may have a substantial impact on materially affect the performance of this Agreement or any Transfer Agreement.;
3.1.4 Grantors have 3.1.4. each Grantor has good and marketable ownership of all shares of the equity interests in Party C. There are no pledges, liabilities and other third party encumbrances on Party C’s shares held by Grantors other than Except for the pledge under the Restated Equity Pledge Agreement.Interest Pledge, the equity interests held by the Grantors in Party C are free from any other pledge, liabilities or other third party encumbrances;
3.1.5 3.1.5. the Grantors have disclosed to Party A all circumstances that may have a material adverse effect on the performance of this Agreement.; and
3.1.6 The option 3.1.6. the Option is granted by the Grantors to Party A is exclusive, on an exclusive basis and Grantors have not otherwise granted any no other third party any other options option or similar rights before are granted by the Grantors in any other manner prior to or when granting concurrently with the option grant of Option to Party A.A hereunder.
3.2 The Grantors hereby jointly and severally make the following undertakingsundertake that:
3.2.1 Within 3.2.1. none of them will create any pledge, liabilities or other third party encumbrances on the equity interests they hold in Party C (for the benefits of a third person other than the Parties), nor will they transfer, give away or otherwise dispose of the equity interests they hold to a third person other than the Parties hereto;
3.2.2. none of them will grant any other third party with an option or a similar right in any other manner throughout the term of this Agreement, Grantors will not create any pledges, liabilities and any other third party encumbrances on Party C’s shares held by them other than those under the Equity Pledge Agreement separately signed by Grantors and Party A nor transfer, donate or otherwise dispose of any shares held by them to any third party other than the Parties to this Agreement.;
3.2.2 Within 3.2.3. throughout the term of this Agreementhereof, Grantors will not otherwise grant any other options or similar rights to any third party.
3.2.3 Within the term of this Agreement, Grantors will cause and ensure procure that the business carried out by Party C conforms to conducts its business in compliance with the applicable laws, regulations, rules and other management regulations rules and documents issued promulgated by the competent government departments authorities, and that there are is no breach violation of the above provisions foregoing stipulation that results in a major may have material adverse impact effect on the business conduct or assets of the company.;
3.2.4 Grantors 3.2.4. they will follow the sound financial and commercial standards and practices to maintain the valid existence of Party C in accordance with good financial C, diligently and commercial standards and practices, operate their effectively carry out its business and deal with affairs in a prudent and efficient mannerits matters, use their best efforts to obtain and maintain any the permits, licenses and approvals necessary for Party C’s continuous operation its continued operation, and ensure make sure that any such permits, licenses and approvals will not be canceled, withdrawn or declared null and void.invalid;
3.2.5 Grantors 3.2.5. they will provide Party A with all materials relating to Party C’s operation operations and financial information at Party A’s matters upon its request.;
3.2.6 Except as expressly agreed by 3.2.6. unless and until Party A (or its designated third party) in writinghas exercised the Option to acquire all equity interests or assets of Party C, before except with an express written consent from Party A (or its designated third party) exercises its option and obtains all ), none of Party C’s shares or assetsthe Grantors may, Grantors shall not jointly or individuallyseverally:
(a) Supplement supplement, change or modify amend the articles of association of Party C’s constitutional documents C in any form, and such supplements, alterations or modifications will way that may have substantial material adverse effects effect on any the assets, responsibilitiesliabilities, operationoperations, shares equity and other legal legitimate rights of Party C (excluding other than the same proportion of corresponding pro-rata capital increase for to satisfy the purpose requirements of meeting the legal requirementslaw) or may affect the effective performance of this Agreement and such other agreements signed entered into by and between Party A, the Grantors and Party C.C;
(b) Cause cause Party C to enter into conclude or do conduct any transactions transaction or acts act that will have material adverse effect on the assets, liabilities, operations, equity and other legitimate rights of Party C (excluding other than those that arise arising in the ordinary or daily day-to-day course of business course or that have been disclosed to and agreed by Party A expressly in writing in advance) that will have materially adverse effects on its assets, liabilities, operation, shares and other legitimate rights.obtained the prior express written consent of Party A);
(c) Cause any resolutions on the distribution of dividends or bonuses to be adopted at the shareholders’ meeting of Party C.
(d) Sell, assign, mortgage or otherwise dispose of any legal or beneficial interests on Party C’s shares or allow to create any other security interests thereon at any time from the effective date of this Agreement.
(e) Cause any sales, transfer, mortgage or otherwise disposal of any legal or beneficial interests on shares to be approved at the shareholders’ meeting of Party C, or allow to create any other security interests thereon, or adopt a shareholder resolution on the increase or decrease of Party C’s registered capital or otherwise modify the structure of the registered capital.
(f) Cause any merger or association of Party C with any persons to be approved at the shareholders’ meeting of Party C, or acquire investments from any persons or make an investment to any persons, or carry out reorganization in any other form.
(g) Cause any winding-up, liquidation or dissolution and other matters of Party C to be approved at the shareholders’ meeting of Party C.
3.2.7 Before Party A (or its designated third party) exercises its option and obtains all of Party C’s shares or assets, Grantors undertake that:
(a) They will forthwith notify Party A in writing of any suits, arbitration or administrative proceedings that have arisen or may arise in relation to the shares owned by them or of any circumstances that may have any adverse effect on such shares.
(b) They will cause the shareholders’ meeting of Party C to examine adopt a resolution of dividend or bonus distribution;
(d) sell, transfer, mortgage and approve the transfer otherwise dispose of the purchased shares as specified legal or beneficial interests of any equity interest in this Agreement, cause Party C to amend its articles of association so as to reflect any changes of Party C’s shares after Party A and/or its designated third party exercises , or permit the option according to this Agreement and creation of any other changes as set forth herein and immediately apply to security interest thereupon, at any time following the authorities of the PRC for approval effective date hereof;
(if required by lawe) and change of registration, and cause the shareholders’ meeting of Party C to approve the sale, transfer, mortgage or other disposal of the legal or beneficial interests of any equity interest, or the permission of the creation of any other security interest thereupon, or to adopt a resolution to increase or decrease the registered capital of Party C or otherwise change the structure of its registered capital;
(f) cause the shareholders’ meeting of Party C to approve Party C’s merger or combination with, or acquisition of, or investment in any person, or restructuring in any other form; and
(g) cause the shareholders’ meeting of Party C to approve the closure, liquidation or dissolution of Party C.
3.2.7. unless and appoint until Party A (or its designated third party) has exercised the Option to acquire all equity interests or assets of Party C, each of the Grantors undertakes to:
(a) immediately notify Party A in writing of any existing or threatened litigation, arbitration or administrative proceeding relating to the equity interest it owns or any circumstance that may have any adverse effect on such equity interest;
(b) cause the shareholders’ meeting of Party C to deliberate and approve the transfer of the purchased equity interest contemplated hereunder, and cause Party C to amend its articles of association to reflect the shareholding change and other changes contemplated hereunder of Party C following the exercise of Option by Party A and/or its designated third party in accordance with this Agreement, and to immediately apply for approval to competent PRC authorities (if so required by PRC laws) and handle the change registration, and cause Party C to adopt a shareholders’ resolution to approve the appointment of persons as designated assigned by Party A and/or its designated third party as Party C’s director directors and legal representative (if necessary).) of Party C;
(c) Before prior to the exercise of Option by Party A and/or its designated third party exercises the optionparty, they will enter into execute all necessary or appropriate such documents, take all necessary or appropriate such actions and make all such claims or provide such defenses against all claims as are necessary or appropriate accusations or make all necessary and appropriate defenses for all claims in order to maintain their lawful the Grantors’ legal and effective valid ownership over of the appropriate shares.relevant equity interests;
(d) Upon at the request of Party A’s request A at any time, they will unconditionally transfer their shares the equity interests it holds to Party A and/or its designated third party at within the period of time specified prescribed by Party A A, and waive their the right of first refusal against any it may have on the equity interest transferred by other then-current shareholders of Party C in respect of the above transfer of shares as instructed by them according to Party A’s instructions.; and
(e) They will strictly abide by comply with the provisions of this Agreement and other agreements jointly or severally entered into executed by and between the Grantors and with Party A, conscientiously perform their diligently fulfill the obligations under such agreements hereunder and will not do thereunder, and refrain from making any actsact/omissions omission that are likely suffices to affect the validity and enforceability of such agreements.
3.3 Party C and the Grantors hereby jointly and severally make the following representationsrepresent, warranties warrant and undertakings to Party Acovenant that:
3.3.1 Except as agreed by 3.3.1. unless and until Party A (or its designated third party) in writinghas exercised the Option to acquire all equity interests or assets of Party C, before except with an express written consent from Party A (or its designated third party) exercises its option and obtains all of Party C’s shares or interests), Party C shall may not:
(a) Sellsell, assigntransfer, mortgage or otherwise dispose of any of its assets, business or incomes revenue, or allow to create permit the creation of any other security interests thereon interest thereupon (excluding other than those that arise arising in the ordinary or daily day-to-day course of business course or that have been disclosed to and agreed by Party A expressly in writing in advanceand obtained the prior express written consent of Party A);
(b) Enter into conclude any transactions (excluding those that arise in the ordinary or daily business course or have been disclosed to and agreed by Party A expressly in writing in advance) transaction that will or may have materially material adverse effects effect on its assets, liabilities, operationoperations, shares equity and other legitimate rightsrights (other than those arising in the ordinary or day-to-day course of business or that have been disclosed to Party A and obtained the prior express written consent of Party A);
(c) Distribute distribute any dividends dividend or bonuses bonus by any means to each shareholder in any formof its shareholders;
(d) Incurincur, inherit, guarantee or allow the existence of any debts other than debt, except for (i) any debts that arise in the debt incurred during its ordinary or daily course of business course rather than by from borrowing, ; and (ii) any debts that have debt which has been disclosed to and agreed by obtained the written consent from Party A expressly in writing in advanceA;
(e) Sign enter into any significant contracts material contract, other than those signed executed in the ordinary course of business course (for the purpose of this ArticleSection, if the amount under a contract is more than RMB50,000, such contract with a value exceeding RMB fifty thousand Yuan (RMB 50,000) shall be deemed to be as a significant material contract);
(f) Adopt adopt a shareholder shareholders’ resolution on the to increase or decrease of Party C’s its registered capital, or otherwise change its registered capital or otherwise modify the structure of the registered capitalstructure;
(g) Supplementsupplement, modify change or amend Party C’s its articles of association in any formform whatsoever; and
(h) Enter into merge or association with combine with, acquire or invest any persons, or acquire investments from any persons or make an investment to any personsperson.
3.3.2 On 3.3.2. As of the date hereof and as of signing this Agreement and each Delivery Closing Date, Party C has no outstanding debts other than debt, except for those (i) any debts arising in incurred during its ordinary business course; course of business, and (ii) any debts that have been disclosed to and agreed by obtained the written consent from Party A expressly in writing in advance.A.
3.3.3 On 3.3.3. As of the date hereof and as of signing this Agreement and each Delivery Closing Date, there is are no suitpending or threatened litigations, arbitration arbitrations or administrative proceedings that are ongoing or may occur in relation relating to the shares, equity interests or assets of Party C or that may otherwise have material adverse effect on Party C’s assets or that may have a substantial impact on the performance of this Agreement by Party C other than except for those that have been disclosed to and agreed by obtained the written consent from Party A expressly in writing in advance.A.
3.3.4 3.3.4. Party C has is not been declared bankrupt.;
3.3.5 3.3.5. Party C hereby undertakes to Party A that it will comply with all laws and regulations applicable to the acquisition of shares equity interests and assets within asset purchase throughout the term of this Agreement, bear all expenses arising out in connection with the transfer of the share transfer equity interests, and handle go through all necessary procedures necessary for enabling to register Party A or its designated third party to become as shareholder of Party C’s shareholder, including but not limited to without limitation assisting Party A in obtaining any necessary approvals in relation to the share transfer from the approval authoritiesauthority in respect of the transfer of equity interests, submitting the filing relevant applications required application documents necessary for handling the share shareholding change registration to the competent administrative department of industry Administration for Industry and commerce Commerce, and amending updating the register of shareholders.
Appears in 1 contract
Samples: Option Agreement (PPDAI Group Inc.)
REPRESENTATIONS, WARRANTIES AND UNDERTAKINGS. 3.1 Grantors jointly 5.1 Party A represents, warranties and severally make the following representations and warrantiesundertakes to Party B:
3.1.1 On 5.1.1 Party A has all requisite capacity, power and authority (including necessary governmental approval and internal corporate approval) to execute and perform this Agreement;
5.1.2 This Agreement constitutes a legally binding obligation of Party A upon its execution of this Agreement;
5.1.3 Party A is the date sole legal user, operator and copyright owner of signing the Transferred Software. Party A has all rights and authority to dispose of the copyright of the Transferred Software;
5.1.4 There is no mortgage, pledge, guarantee, lien, surety, security interest or encumbrances of any kind on all or part of the copyright of the Transferred Software, there is no agreement or undertaking that would lead to or give rise to any aforesaid mortgage, pledge, guarantee, lien, surety, security interest or encumbrances of any kind, and there is no person entitled to claim aforesaid mortgage, pledge, guarantee, lien, surety, security interest or encumbrances of any kind;
5.1.5 Party A is not currently involved in any litigation, arbitration or other legal or administrative proceedings regarding the copyright of the Transferred Software. Party A is not aware of any litigation, arbitration or other legal or administrative proceedings that would threaten or affect Party A’s performance of its obligations under this Agreement Agreement;
5.1.6 The technology, data and each Delivery Dateinformation of the Transferred Software does not infringe on the intellectual property of any third party, Grantors have and there is no pending claim in connection with the powerscopyright of the Transferred Software;
5.1.7 The relevant technology, rightsdata and information of the Transferred Software does not contain logic bomb, authority virus or other material hidden danger. Party A has established effective mechanism to prevent illegal attack of the system by other persons or viruses, and ability has taken effective measures to sign backup relevant technology and deliver data.
5.1.8 Party A undertakes that its employees shall not develop or upgrade the current version of the Transferred Software. If Party A breaches this Agreement clause, any software copyright arising from such development or upgrade shall belong to Party B;
5.1.9 Party A has properly and any share transfer agreement (hereinafter referred timely paid all taxes and expenses related to as “Transfer Agreement”) signed by them as a party thereto for each share transfer according the Transferred Software and all taxes arising from its ownership and operation thereof, pursuant to this Agreement PRC laws, regulations and relevant administrative measures, and therefore there is no outstanding, current, contingent or future tax or other expense obligations on the Transferred Software;
5.1.10 Party A has disclosed to perform their Party B all information known to Party A that is relevant to the Transferred Software, including information that may materially and adversely affect Party A’s performance of its obligations under this Agreement and information that may substantially affect Party B’s intent to enter into this Agreement upon disclosure. All materials provided by Party A to Party B are complete and correct and without any Transfer Agreement. This Agreement and any Transfer Agreement material mistake, misrepresentation or misleading statement;
5.1.11 Party A shall use all reasonable efforts to which they are a party shall constitute their legal, effective and binding obligations that are enforceable on them according satisfy the conditions precedent to the provisions thereof once signed.Closing set forth in Section 3 of this Agreement;
3.1.2 No signing 5.1.12 Party A shall provide Party B with the Transferred Software and delivery all relevant technical information and data (including but not limited to all source code of the Transferred Software) pursuant to this Agreement;
5.1.13 Party A shall not engage in any activity that contradicts this Agreement or any Transfer Agreement and no performance by Grantors of their Party A’s obligations or undertakings under this Agreement Agreement;
5.1.14 Within the one year following the Closing Date, Party A shall provide, or any Transfer Agreement instruct its employee to provide Party B with free technical support for the Transferred Software’s use, operation, maintenance, etc. Party A shall (i) result in any violation of any relevant laws also provide Party B with instructions regarding the technology structure, development and regulations operation of the PRC; Transferred Software.
5.2 Party B represents, warranties and undertakes to Party A:
5.2.1 Party B has all requisite capacity, power and authority (iiincluding necessary governmental approval and internal corporate approval) conflict with the articles of association or other organizational documents; (iii) result in any breach of any binding agreements or instruments to which they are a party or constitute any breach of contract under any binding agreements or instruments to which they are a party; (iv) result in any breach of any licenses or approvals issued by the relevant competent government departments to them; or (v) cause any licenses or approvals issued by the relevant competent government departments to them to be suspended or revoked or attached with any conditionsexecute and perform this Agreement;
3.1.3 There is no suit, arbitration or other judicial or administrative proceedings that are pending or may have 5.2.2 This Agreement constitutes a substantial impact on the performance legally binding obligation of Party B upon its execution of this Agreement or any Transfer Agreement.;
3.1.4 Grantors have good and marketable ownership of all shares of 5.2.3 Party C. There are no pledges, liabilities and other third party encumbrances on Party C’s shares held by Grantors other than the pledge under the Equity Pledge Agreement.
3.1.5 Grantors have disclosed B shall pay to Party A all circumstances that may have a material adverse effect on Transfer Consideration pursuant to the performance terms and conditions of this Agreement.
3.1.6 The option granted 5.3 Any breach of representations, warranties or undertakings by Grantors to a Party A is exclusiveshall constitute an event of default, and Grantors have not otherwise granted any third the non-breaching party any other options or similar rights before or when granting shall be entitled to request the option breaching party to Party A.
3.2 Grantors jointly and severally make the following undertakings:
3.2.1 Within the term reasonably rectify such event of default, so as to continue its performance of this Agreement, Grantors will not create any pledges, liabilities and any other third . The non-breaching party encumbrances on Party C’s shares held by them other than those under the Equity Pledge Agreement separately signed by Grantors and Party A nor transfer, donate or otherwise dispose of any shares held by them shall be entitled to any third party other than the Parties to this Agreement.
3.2.2 Within the term of this Agreement, Grantors will not otherwise grant any other options or similar rights to any third party.
3.2.3 Within the term of this Agreement, Grantors will cause and ensure that the business carried out by Party C conforms to the applicable laws, regulations, rules and other management regulations and documents issued by the competent government departments and that there are no breach of the above provisions that results in a major adverse impact on the business or assets of the company.
3.2.4 Grantors will maintain the valid existence of Party C in accordance with good financial and commercial standards and practices, operate their business and deal with affairs in a prudent and efficient manner, use their best efforts to obtain and maintain any permits, licenses and approvals necessary for Party C’s continuous operation and ensure that any such permits, licenses and approvals will not be canceled, withdrawn or declared null and void.
3.2.5 Grantors will provide Party A with all Party C’s operation and financial information at Party A’s request.
3.2.6 Except as expressly agreed by Party A (or recover its designated third party) in writing, before Party A (or its designated third party) exercises its option and obtains all of Party C’s shares or assets, Grantors shall not jointly or individually:
(a) Supplement or modify Party C’s constitutional documents in any form, and such supplements, alterations or modifications will have substantial adverse effects on any assets, responsibilities, operation, shares and other legal rights of Party C (excluding the same proportion of capital increase for the purpose of meeting the legal requirements) or may affect the effective performance of this Agreement and other agreements signed by Party A, Grantors and Party C.
(b) Cause Party C to enter into or do any transactions or acts (excluding those that arise in the ordinary or daily business course or have been disclosed to and agreed by Party A expressly in writing in advance) that will have materially adverse effects on its assets, liabilities, operation, shares and other legitimate rights.
(c) Cause any resolutions on the distribution of dividends or bonuses to be adopted at the shareholders’ meeting of Party C.
(d) Sell, assign, mortgage or otherwise dispose of any legal or beneficial interests on Party C’s shares or allow to create any other security interests thereon at any time economic losses directly arising from the effective date event of this Agreementdefault.
(e) Cause any sales, transfer, mortgage or otherwise disposal of any legal or beneficial interests on shares to be approved at the shareholders’ meeting of Party C, or allow to create any other security interests thereon, or adopt a shareholder resolution on the increase or decrease of Party C’s registered capital or otherwise modify the structure of the registered capital.
(f) Cause any merger or association of Party C with any persons to be approved at the shareholders’ meeting of Party C, or acquire investments from any persons or make an investment to any persons, or carry out reorganization in any other form.
(g) Cause any winding-up, liquidation or dissolution and other matters of Party C to be approved at the shareholders’ meeting of Party C.
3.2.7 Before Party A (or its designated third party) exercises its option and obtains all of Party C’s shares or assets, Grantors undertake that:
(a) They will forthwith notify Party A in writing of any suits, arbitration or administrative proceedings that have arisen or may arise in relation to the shares owned by them or of any circumstances that may have any adverse effect on such shares.
(b) They will cause the shareholders’ meeting of Party C to examine and approve the transfer of the purchased shares as specified in this Agreement, cause Party C to amend its articles of association so as to reflect any changes of Party C’s shares after Party A and/or its designated third party exercises the option according to this Agreement and other changes as set forth herein and immediately apply to the authorities of the PRC for approval (if required by law) and change of registration, and cause the shareholders’ meeting of Party C to approve and appoint such persons as designated by Party A and/or its designated third party as Party C’s director and legal representative (if necessary).
(c) Before Party A and/or its designated third party exercises the option, they will enter into all necessary or appropriate documents, take all necessary or appropriate actions and make all necessary or appropriate accusations or make all necessary and appropriate defenses for all claims in order to maintain their lawful and effective ownership over the appropriate shares.
(d) Upon Party A’s request at any time, they will unconditionally transfer their shares to Party A and/or its designated third party at the time specified by Party A and waive their right of first refusal against any other shareholders of Party C in respect of the above transfer of shares by them according to Party A’s instructions.
(e) They will strictly abide by this Agreement and other agreements jointly or severally entered into by and between Grantors and Party A, conscientiously perform their obligations under such agreements and will not do any acts/omissions that are likely to affect the validity and enforceability of such agreements.
3.3 Party C and Grantors hereby jointly and severally make the following representations, warranties and undertakings to Party A:
3.3.1 Except as agreed by Party A (or its designated third party) in writing, before Party A (or its designated third party) exercises its option and obtains all of Party C’s shares or interests, Party C shall not:
(a) Sell, assign, mortgage or otherwise dispose of any assets, business or incomes or allow to create any other security interests thereon (excluding those that arise in the ordinary or daily business course or have been disclosed to and agreed by Party A expressly in writing in advance);
(b) Enter into any transactions (excluding those that arise in the ordinary or daily business course or have been disclosed to and agreed by Party A expressly in writing in advance) that will or may have materially adverse effects on its assets, liabilities, operation, shares and other legitimate rights;
(c) Distribute any dividends or bonuses to each shareholder in any form;
(d) Incur, inherit, guarantee or allow the existence of any debts other than (i) any debts that arise in the ordinary or daily business course rather than by borrowing, and (ii) any debts that have been disclosed to and agreed by Party A expressly in writing in advance;
(e) Sign any significant contracts other than those signed in the ordinary business course (for the purpose of this Article, if the amount under a contract is more than RMB50,000, such contract shall be deemed to be a significant contract);
(f) Adopt a shareholder resolution on the increase or decrease of Party C’s registered capital or otherwise modify the structure of the registered capital;
(g) Supplement, modify or amend Party C’s articles of association in any form; and
(h) Enter into merge or association with any persons, or acquire investments from any persons or make an investment to any persons.
3.3.2 On the date of signing this Agreement and each Delivery Date, Party C has no outstanding debts other than (i) any debts arising in its ordinary business course; and (ii) any debts that have been disclosed to and agreed by Party A expressly in writing in advance.
3.3.3 On the date of signing this Agreement and each Delivery Date, there is no suit, arbitration or administrative proceedings that are ongoing or may occur in relation to the shares, Party C’s assets or that may have a substantial impact on the performance of this Agreement by Party C other than those that have been disclosed to and agreed by Party A expressly in writing in advance.
3.3.4 Party C has not been declared bankrupt.
3.3.5 Party C hereby undertakes to Party A that it will comply with all laws and regulations applicable to the acquisition of shares and assets within the term of this Agreement, bear all expenses arising out of the share transfer and handle all procedures necessary for enabling Party A or its designated third party to become Party C’s shareholder, including but not limited to assisting Party A in obtaining any necessary approvals in relation to the share transfer from the approval authorities, submitting the relevant applications required for handling the share change registration to the competent administrative department of industry and commerce and amending the register of shareholders.
Appears in 1 contract
Samples: Software Copyright Transfer Agreement (Loyalty Alliance Enterprise Corp)
REPRESENTATIONS, WARRANTIES AND UNDERTAKINGS. 3.1 Grantors jointly 7.1 Each Party hereby represents, warrants and severally make undertakes to the following representations and warrantiesother Party that:
3.1.1 On the date 7.1.1 It has sufficient capacity for action, power and authorization (including necessary government approval and internal permit of signing corporation) to execute and perform this Agreement and each Delivery Date, Grantors have the powers, rights, authority and ability to sign and deliver this Agreement and any share transfer agreement (hereinafter referred to as “Transfer Agreement”) signed by them as a party thereto for each share transfer according to this Agreement and to perform their obligations under this Agreement and any Transfer Agreement. ;
7.1.2 This Agreement and any Transfer Agreement to which they are a party shall constitute their legal, effective and be legally binding obligations that are enforceable on them according to the provisions thereof once signed.
3.1.2 No signing and delivery of this Agreement or any Transfer Agreement and no performance by Grantors of their obligations under this Agreement or any Transfer Agreement shall (i) result in any violation of any relevant laws and regulations Parties as of the PRCexecution date hereof; (ii) conflict with the articles of association or other organizational documents; (iii) result in any breach of any binding agreements or instruments to which they are a party or constitute any breach of contract under any binding agreements or instruments to which they are a party; (iv) result in any breach of any licenses or approvals issued by the relevant competent government departments to them; or (v) cause any licenses or approvals issued by the relevant competent government departments to them to be suspended or revoked or attached with any conditions;and
3.1.3 7.1.3 There is no suitoutstanding litigation, arbitration or other judicial legal or administrative governmental proceedings, or to the knowledge of that Party, there is no litigation, arbitration or other legal or governmental proceedings that are pending threatening or may have a substantial impact on affecting the performance of this Agreement or any Transfer Agreementobligations of that Party hereunder.
3.1.4 Grantors have good 7.2 Other than those set forth in Section 7.1, Party A hereby represents, and marketable ownership of all shares of Party C. There are no pledges, liabilities warrants and other third party encumbrances on Party C’s shares held by Grantors other than the pledge under the Equity Pledge Agreement.
3.1.5 Grantors have disclosed undertakes to Party A all circumstances that may B that:
7.2.1 It shall timely inform Party B of any circumstance which has or is likely to have a material adverse effect on Party A’s business or operation thereof and shall use its best efforts to prevent the occurrence of such circumstance and/or the expansion of losses.
7.2.2 Without written consent of Party B, Party A will not dispose of its material assets or change its current shareholding structure in whatsoever manner.
7.2.3 When this Agreement takes effect, it has complete licenses and certificates necessary for conduct of its business, full rights and qualifications to carry out business currently conducted by it within the PRC.
7.2.4 Once requested by Party B in writing, Party A will use all receivables then in its possession and/or other assets lawfully owned by it and at its disposal to provide security for performance of this Agreementits payment obligation of the Services Fees agreed in Article 4 hereof in a manner then permissible by Laws.
3.1.6 The option granted 7.2.5 It will indemnify and hold harmless Party B against all losses suffered or likely to be suffered by Grantors to Party A is exclusiveB as a result of provision of the Services, and Grantors have not otherwise granted including, without limitation, any losses arising out of any suit, recourse, arbitration, claim brought by any third party against it or any administrative investigation or sanction by any governmental authorities, but exclusive of any losses arising out of any willful misconduct or gross negligence of Party B.
7.2.6 Without written consent of Party B, Party A shall not enter into any other options agreement or similar arrangement conflicting with this Agreement or likely to impair the rights before or when granting and interests of Party B hereunder.
7.3 Each Party shall be responsible for and hold the option to other Party A.
3.2 Grantors jointly harmless from any loss, damages and severally make the following undertakings:
3.2.1 Within the term claim arising out of this Agreement, Grantors will not create any pledges, liabilities and any other third party encumbrances on Party C’s shares held by them other than those under the Equity Pledge Agreement separately signed by Grantors and Party A nor transfer, donate or otherwise dispose violation of any shares held by them to any third party other than the Parties to this Agreement.
3.2.2 Within the term of this Agreement, Grantors will not otherwise grant any other options or similar rights to any third party.
3.2.3 Within the term of this Agreement, Grantors will cause and ensure that the business carried out by Party C conforms to the applicable laws, regulations, rules and other management regulations and documents issued by the competent government departments and that there are no breach of the above provisions that results in a major adverse impact on the business or assets of the company.
3.2.4 Grantors will maintain the valid existence of Party C in accordance with good financial and commercial standards and practices, operate their business and deal with affairs in a prudent and efficient manner, use their best efforts to obtain and maintain any permits, licenses and approvals necessary for Party C’s continuous operation and ensure that any such permits, licenses and approvals will not be canceled, withdrawn or declared null and void.
3.2.5 Grantors will provide Party A with all Party C’s operation and financial information at Party A’s request.
3.2.6 Except as expressly agreed by Party A (or its designated third party) in writing, before Party A (or its designated third party) exercises its option and obtains all of Party C’s shares or assets, Grantors shall not jointly or individually:
(a) Supplement or modify Party C’s constitutional documents in any form, and such supplements, alterations or modifications will have substantial adverse effects on any assets, responsibilities, operation, shares and other legal rights of Party C (excluding the same proportion of capital increase for the purpose of meeting the legal requirements) or may affect the effective performance of this Agreement and other agreements signed by Party A, Grantors and Party C.
(b) Cause Party C to enter into or do any transactions or acts (excluding those that arise in the ordinary or daily business course or have been disclosed to and agreed by Party A expressly in writing in advance) that will have materially adverse effects on its assets, liabilities, operation, shares and other legitimate rights.
(c) Cause any resolutions on the distribution of dividends or bonuses to be adopted at the shareholders’ meeting of Party C.
(d) Sell, assign, mortgage or otherwise dispose of any legal or beneficial interests on Party C’s shares or allow to create any other security interests thereon at any time from the effective date of this Agreement.
(e) Cause any sales, transfer, mortgage or otherwise disposal of any legal or beneficial interests on shares to be approved at the shareholders’ meeting of Party C, or allow to create any other security interests thereon, or adopt a shareholder resolution on the increase or decrease of Party C’s registered capital or otherwise modify the structure of the registered capital.
(f) Cause any merger or association of Party C with any persons to be approved at the shareholders’ meeting of Party C, or acquire investments from any persons or make an investment to any persons, or carry out reorganization in any other form.
(g) Cause any winding-up, liquidation or dissolution and other matters of Party C to be approved at the shareholders’ meeting of Party C.
3.2.7 Before Party A (or its designated third party) exercises its option and obtains all of Party C’s shares or assets, Grantors undertake that:
(a) They will forthwith notify Party A in writing of any suits, arbitration or administrative proceedings that have arisen or may arise in relation to the shares owned by them or of any circumstances that may have any adverse effect on such shares.
(b) They will cause the shareholders’ meeting of Party C to examine and approve the transfer of the purchased shares as specified in this Agreement, cause Party C to amend its articles of association so as to reflect any changes of Party C’s shares after Party A and/or its designated third party exercises the option according to this Agreement and other changes as set forth herein and immediately apply to the authorities of the PRC for approval (if required by law) and change of registration, and cause the shareholders’ meeting of Party C to approve and appoint such persons as designated by Party A and/or its designated third party as Party C’s director and legal representative (if necessary).
(c) Before Party A and/or its designated third party exercises the option, they will enter into all necessary or appropriate documents, take all necessary or appropriate actions and make all necessary or appropriate accusations or make all necessary and appropriate defenses for all claims in order to maintain their lawful and effective ownership over the appropriate shares.
(d) Upon Party A’s request at any time, they will unconditionally transfer their shares to Party A and/or its designated third party at the time specified by Party A and waive their right of first refusal against any other shareholders of Party C in respect of the above transfer of shares by them according to Party A’s instructions.
(e) They will strictly abide by this Agreement and other agreements jointly or severally entered into by and between Grantors and Party A, conscientiously perform their obligations under such agreements and will not do any acts/omissions that are likely to affect the validity and enforceability of such agreements.
3.3 Party C and Grantors hereby jointly and severally make the following representations, warranties and undertakings to Party A:
3.3.1 Except as agreed by Party A (or its designated third party) in writing, before Party A (or its designated third party) exercises its option and obtains all of Party C’s shares or interests, Party C shall not:
(a) Sell, assign, mortgage or otherwise dispose of any assets, business or incomes or allow to create any other security interests thereon (excluding those that arise in the ordinary or daily business course or have been disclosed to and agreed by Party A expressly in writing in advance);
(b) Enter into any transactions (excluding those that arise in the ordinary or daily business course or have been disclosed to and agreed by Party A expressly in writing in advance) that will or may have materially adverse effects on its assets, liabilities, operation, shares and other legitimate rights;
(c) Distribute any dividends or bonuses to each shareholder in any form;
(d) Incur, inherit, guarantee or allow the existence of any debts other than (i) any debts that arise in the ordinary or daily business course rather than by borrowing, and (ii) any debts that have been disclosed to and agreed by Party A expressly in writing in advance;
(e) Sign any significant contracts other than those signed in the ordinary business course (for the purpose of this Article, if the amount under a contract is more than RMB50,000, such contract shall be deemed to be a significant contract);
(f) Adopt a shareholder resolution on the increase or decrease of Party C’s registered capital or otherwise modify the structure of the registered capital;
(g) Supplement, modify or amend Party C’s articles of association in any form; and
(h) Enter into merge or association with any persons, or acquire investments from any persons or make an investment to any persons.
3.3.2 On the date of signing this Agreement and each Delivery Date, Party C has no outstanding debts other than (i) any debts arising in its ordinary business course; and (ii) any debts that have been disclosed to and agreed by Party A expressly in writing in advance.
3.3.3 On the date of signing this Agreement and each Delivery Date, there is no suit, arbitration or administrative proceedings that are ongoing or may occur in relation to the shares, Party C’s assets or that may have a substantial impact on the performance of this Agreement by Party C other than those that have been disclosed to and agreed by Party A expressly in writing in advance.
3.3.4 Party C has not been declared bankrupt.
3.3.5 Party C hereby undertakes to Party A that it will comply with all laws and regulations applicable to the acquisition of shares and assets within the term of this Agreement, bear all expenses arising out of the share transfer and handle all procedures necessary for enabling Party A or its designated third party to become Party C’s shareholder, including but not limited to assisting Party A in obtaining any necessary approvals in relation to the share transfer from the approval authorities, submitting the relevant applications required for handling the share change registration to the competent administrative department of industry and commerce and amending the register of shareholders.Undertakings hereunder.
Appears in 1 contract
Samples: Cooperation Agreement (Tuniu Corp)
REPRESENTATIONS, WARRANTIES AND UNDERTAKINGS. 3.1 Grantors jointly and severally The Obligors hereby make the following representations and warranties:
3.1.1 On the date of signing (1) They have full power and authority to execute and perform this Agreement and each Delivery Date, Grantors have the powers, rights, authority and ability to sign and deliver this Agreement and any share transfer agreement (hereinafter referred to as “Transfer Agreement”) signed by them as a party thereto for each share transfer according to this Agreement and to perform their obligations under this Agreement and any Transfer Agreement. This Agreement and any Transfer Agreement to which they are a party shall constitute their legal, effective and binding obligations that are enforceable on them according to the provisions thereof once signed.
3.1.2 No signing and delivery of this Agreement or any Transfer Agreement and no performance by Grantors of their obligations under this Agreement or any Transfer Agreement shall (i) result in any violation of any relevant laws and regulations of the PRC; (ii) conflict with the articles of association or other organizational documents; (iii) result in any breach of any binding agreements or instruments to which they are a party or constitute any breach of contract under any binding agreements or instruments to which they are a party; (iv) result in any breach of any licenses or approvals issued by the relevant competent government departments to them; or (v) cause any licenses or approvals issued by the relevant competent government departments to them to be suspended or revoked or attached with any conditions;
3.1.3 There is no suit(2) The Obligors do not have any action, arbitration or any other judicial or administrative proceedings that are procedure pending or may have a substantial impact on the performance of this Agreement or any Transfer Agreement.
3.1.4 Grantors have good and marketable ownership of all shares of Party C. There are no pledges, liabilities and other third party encumbrances on Party C’s shares held by Grantors other than the pledge under the Equity Pledge Agreement.
3.1.5 Grantors have disclosed to Party A all circumstances that may have a material adverse effect on potentially materially affect the performance of this Agreement.;
3.1.6 (3) No Obligor has been declared bankrupt;
(4) Other than the share pledge created in favor of the Obligee, there is not any mortgage, pledge, charge or any other third-party encumbrance created upon the Shares held by the Obligors;
(5) The option Option granted by Grantors the Obligors to Party A the Obligee hereunder is exclusive, and Grantors have the Obligors will not otherwise granted grant an option or similar right to any other third party any through other options or similar rights before or when granting the option to Party A.means.
3.2 Grantors jointly and severally make the following undertakings:
3.2.1 Within The Obligors hereby undertake that, throughout the term of this Agreement:
(1) They will sign a Share Transfer Agreement and adopt a shareholders’ resolution according to this Agreement, Grantors will and assist the Obligee to obtain the necessary approval from the government authority regarding the share transfer, to submit the Share Transfer Agreement, the amendment to the Articles of Association and the updated register of shareholders to the competent administration for industry and commerce, and to complete all other relevant formalities;
(2) Other than the share pledge created in favor of the Obligee, without the prior written consent of the Obligee, the Obligors may not create any pledgesmortgage, liabilities and pledge, charge or any other third third-party encumbrances encumbrance on Party C’s shares held by them other than those under the Equity Pledge Agreement separately signed by Grantors and Party A nor transferShares, donate or assign, give away or otherwise dispose of any shares held by them the Shares to any third party person (other than the Parties Obligee or its nominee);
(3) Upon occurrence of any event or receipt of any notice which likely affects the Obligors, Shares or the rights therein or change any obligation of the Obligors hereunder or the performance of any obligation of the Obligors hereunder, the Obligors will promptly notify the Obligee and take all actions and measures according to this Agreement.the reasonable instructions of the Obligee;
3.2.2 Within (4) Other than the term Option granted to the Obligee hereunder, without the prior written consent of this Agreementthe Obligee, Grantors will the Obligors may not otherwise grant any option or any other options or similar rights preemptive right to any third party.
3.2.3 Within the term of this Agreement, Grantors will cause and ensure that the business carried out by Party C conforms to the applicable laws, regulations, rules and other management regulations and documents issued by the competent government departments and that there are no breach of the above provisions that results in a major adverse impact on the business or assets of the company.
3.2.4 Grantors will maintain the valid existence of Party C in accordance with good financial and commercial standards and practices, operate their business and deal with affairs in a prudent and efficient manner, use their best efforts to obtain and maintain any permits, licenses and approvals necessary for Party C’s continuous operation and ensure that any such permits, licenses and approvals will not be canceled, withdrawn or declared null and void.
3.2.5 Grantors will provide Party A with all Party C’s operation and financial information at Party A’s request.
3.2.6 Except as expressly agreed by Party A (or its designated third party) in writing, before Party A (or its designated third party) exercises its option and obtains all of Party C’s shares or assets, Grantors shall not jointly or individually:
(a) Supplement or modify Party C’s constitutional documents in any form, and such supplements, alterations or modifications will have substantial adverse effects on any assets, responsibilities, operation, shares and other legal rights of Party C (excluding the same proportion of capital increase for the purpose of meeting the legal requirements) or may affect the effective performance of this Agreement and other agreements signed by Party A, Grantors and Party C.
(b) Cause Party C to enter into or do any transactions or acts (excluding those that arise in the ordinary or daily business course or have been disclosed to and agreed by Party A expressly in writing in advance) that will have materially adverse effects on its assets, liabilities, operation, shares and other legitimate rights.
(c) Cause any resolutions on the distribution of dividends or bonuses to be adopted at the shareholders’ meeting of Party C.
(d) Sell, assign, mortgage or otherwise dispose of any legal or beneficial interests on Party C’s shares or allow to create any other security interests thereon at any time from the effective date of this Agreement.
(e) Cause any sales, transfer, mortgage or otherwise disposal of any legal or beneficial interests on shares to be approved at the shareholders’ meeting of Party C, or allow to create any other security interests thereon, or adopt a shareholder resolution on the increase or decrease of Party C’s registered capital or otherwise modify the structure of the registered capital.
(f) Cause any merger or association of Party C with any persons to be approved at the shareholders’ meeting of Party C, or acquire investments from any persons or make an investment to any persons, or carry out reorganization in any other form.
(g) Cause any winding-up, liquidation or dissolution and other matters of Party C to be approved at the shareholders’ meeting of Party C.
3.2.7 Before Party A (or its designated third party) exercises its option and obtains all of Party C’s shares or assets, Grantors undertake that:
(a) They will forthwith notify Party A in writing of any suits, arbitration or administrative proceedings that have arisen or may arise in relation to the shares owned by them or of any circumstances that may have any adverse effect on such shares.
(b) They will cause the shareholders’ meeting of Party C to examine and approve the transfer of the purchased shares as specified in this Agreement, cause Party C to amend its articles of association so as to reflect any changes of Party C’s shares after Party A and/or its designated third party exercises the option according to this Agreement and other changes as set forth herein and immediately apply to the authorities of the PRC for approval (if required by law) and change of registration, and cause the shareholders’ meeting of Party C to approve and appoint such persons as designated by Party A and/or its designated third party as Party C’s director and legal representative (if necessary).
(c) Before Party A and/or its designated third party exercises the option, they will enter into all necessary or appropriate documents, take all necessary or appropriate actions and make all necessary or appropriate accusations or make all necessary and appropriate defenses for all claims in order to maintain their lawful and effective ownership over the appropriate shares.
(d) Upon Party A’s request at any time, they will unconditionally transfer their shares to Party A and/or its designated third party at the time specified by Party A and waive their right of first refusal against any other shareholders of Party C in respect of the above transfer of shares by them according to Party A’s instructions.
(e) They will strictly abide by this Agreement and other agreements jointly or severally entered into by and between Grantors and Party A, conscientiously perform their obligations under such agreements and will not do any acts/omissions that are likely to affect the validity and enforceability of such agreements.
3.3 Party C and Grantors hereby jointly and severally make the following representations, warranties and undertakings to Party A:
3.3.1 Except as agreed by Party A (or its designated third party) in writing, before Party A (or its designated third party) exercises its option and obtains all of Party C’s shares or interests, Party C shall not:
(a) Sell, assign, mortgage or otherwise dispose of any assets, business or incomes or allow to create any other security interests thereon (excluding those that arise in the ordinary or daily business course or have been disclosed to and agreed by Party A expressly in writing in advance);
(b) Enter into any transactions (excluding those that arise in the ordinary or daily business course or have been disclosed to and agreed by Party A expressly in writing in advance) that will or may have materially adverse effects on its assets, liabilities, operation, shares and other legitimate rights;
(c) Distribute any dividends or bonuses to each shareholder in any form;
(d) Incur, inherit, guarantee or allow the existence of any debts other than (i) any debts that arise in the ordinary or daily business course rather than by borrowing, and (ii) any debts that have been disclosed to and agreed by Party A expressly in writing in advance;
(e) Sign any significant contracts other than those signed in the ordinary business course (for the purpose of this Article, if the amount under a contract is more than RMB50,000, such contract shall be deemed to be a significant contract);
(f) Adopt a shareholder resolution on the increase or decrease of Party C’s registered capital or otherwise modify the structure of the registered capital;
(g) Supplement, modify or amend Party C’s articles of association in any form; and
(h) Enter into merge or association with any persons, or acquire investments from any persons or make an investment to any persons.
3.3.2 On the date of signing this Agreement and each Delivery Date, Party C has no outstanding debts other than (i) any debts arising in its ordinary business course; and (ii) any debts that have been disclosed to and agreed by Party A expressly in writing in advance.
3.3.3 On the date of signing this Agreement and each Delivery Date, there is no suit, arbitration or administrative proceedings that are ongoing or may occur in relation to the shares, Party C’s assets or that may have a substantial impact on the performance of this Agreement by Party C other than those that have been disclosed to and agreed by Party A expressly in writing in advance.
3.3.4 Party C has not been declared bankrupt.
3.3.5 Party C hereby undertakes to Party A that it will comply with all laws and regulations applicable to the acquisition of shares and assets within the term of this Agreement, bear all expenses arising out of the share transfer and handle all procedures necessary for enabling Party A or its designated third party to become Party C’s shareholder, including but not limited to assisting Party A in obtaining any necessary approvals in relation to the share transfer from the approval authorities, submitting the relevant applications required for handling the share change registration to the competent administrative department of industry and commerce and amending the register of shareholders.
Appears in 1 contract
Samples: Option Agreement (China Mobile Games & Entertainment Group LTD)
REPRESENTATIONS, WARRANTIES AND UNDERTAKINGS. 3.1 Grantors 4.1. Party B and/or Party C jointly and severally make the following representations hereby represent and warrantieswarrant to Party A that:
3.1.1 On the date of signing this Agreement and each Delivery Date, Grantors 4.1.1. Party B and/or Party C have the powersfull right and capability to execute, rights, authority deliver and ability to sign and deliver this Agreement and any share transfer agreement (hereinafter referred to as “Transfer Agreement”) signed by them as a party thereto for each share transfer according to perform this Agreement and to perform their obligations under execute equity transfer agreement for the purpose of transferring Target Equity. When duly executed, this Agreement and any Transfer Agreement. This Agreement and any Transfer Agreement to which they are a party shall related equity transfer agreements constitute their the legal, effective valid and binding obligations that are enforceable on them according to the provisions thereof once signedParty B and/or Party C, and can be enforced.
3.1.2 No signing 4.1.2. The execution, delivery and delivery performance of this Agreement or any Transfer Agreement and no performance by Grantors of their obligations under this Agreement or any Transfer Agreement shall (i) result are not in any violation of any relevant laws and regulations of the PRC; (ii) PRC laws, conflict with the any articles of association or other organizational documents; (iii) result in documents of Party B and/or Party C, or breach any breach of any binding agreements or instruments to which they are a party or constitute any breach of contract under any undertakings binding agreements or instruments to which they are a party; (iv) result in any breach of any licenses or approvals issued by the relevant competent government departments to them; or (v) cause any licenses or approvals issued by the relevant competent government departments to them to be suspended or revoked or attached with any conditionson Party B and/or Party C;
3.1.3 There is no suit4.1.3. Party B and/or Party C are the legal owner of the Target Equity, arbitration or other judicial or administrative proceedings that are pending or may have a substantial impact on except for the performance of this Agreement or any Transfer Agreement.
3.1.4 Grantors have good encumbrances set pursuant to the Loan and marketable ownership of all shares of Party C. There are no pledges, liabilities and other third party encumbrances on Party C’s shares held by Grantors other than the pledge under the Equity Pledge Agreement.
3.1.5 Grantors have disclosed to Party A all circumstances that may have a material adverse effect on the performance of this Agreement.
3.1.6 The option granted by Grantors to Party A is exclusive, and Grantors have not otherwise granted any third party any other options or similar rights before or when granting the option to Party A.
3.2 Grantors jointly and severally make the following undertakings:
3.2.1 Within the term of this Agreement, Grantors will not create any pledges, liabilities and any other third party encumbrances on Party C’s shares held by them other than those under the Equity Pledge Agreement separately signed by Grantors and as listed in Annex 1, there is no other security interest or encumbrance of rights set on the Target Equity;
4.1.4. Party A nor transfer, donate or otherwise dispose of any shares held by them to any third party other than the Parties to this Agreement.
3.2.2 Within the term of this Agreement, Grantors will B and/or Party C have not otherwise grant any other options granted option rights or similar rights to Third Party other than Party A, or have undertaken to do so;
4.1.5. Party B and/or Party C have not had an interest in any third partypending or threatened litigations, arbitrations or administrative proceedings against the Target Equity;
4.1.6. Party B and/or Party C agree that the foregoing representations and warranties will remain true and effective at the time of transferring the Target Equity to Party A .
3.2.3 Within 4.2. In addition to the term of obligations and undertakings pursuant to this AgreementAgreement hereof, Grantors will cause and ensure that the business carried out by Party B and/or Party C conforms hereby undertake to the applicable laws, regulations, rules and other management regulations and documents issued by the competent government departments and that there are no breach of the above provisions that results in a major adverse impact on the business or assets of the company.Party A:
3.2.4 Grantors will maintain the valid existence of Party C in accordance with good financial and commercial standards and practices, operate their business and deal with affairs in a prudent and efficient manner, use their best efforts to obtain and maintain any permits, licenses and approvals necessary for Party C’s continuous operation and ensure that any such permits, licenses and approvals will not be canceled, withdrawn or declared null and void.
3.2.5 Grantors will provide Party A with all Party C’s operation and financial information at 4.2.1. Upon Party A’s request., to provide related operational and financial information of Sichuan Time Share;
3.2.6 Except as expressly agreed by 4.2.2. To promptly inform Party A (or its designated third party) in writing, before Party A (or its designated third party) exercises its option and obtains all of Party C’s shares or assets, Grantors shall not jointly or individually:
(a) Supplement or modify Party C’s constitutional documents in any form, and such supplements, alterations or modifications will have substantial adverse effects on any assets, responsibilities, operation, shares and other legal rights of Party C (excluding the same proportion of capital increase for the purpose of meeting the legal requirements) or may affect the effective performance of this Agreement and other agreements signed by Party A, Grantors and Party C.
(b) Cause Party C to enter into or do any transactions or acts (excluding those that arise in the ordinary or daily business course or have been disclosed to and agreed by Party A expressly in writing in advance) that will have materially adverse effects on its assets, liabilities, operation, shares and other legitimate rights.
(c) Cause any resolutions on the distribution of dividends or bonuses to be adopted at the shareholders’ meeting of Party C.
(d) Sell, assign, mortgage or otherwise dispose of any legal or beneficial interests on Party C’s shares or allow to create any other security interests thereon at any time from the effective date of this Agreement.
(e) Cause any saleslitigations, transfer, mortgage or otherwise disposal of any legal or beneficial interests on shares to be approved at the shareholders’ meeting of Party C, or allow to create any other security interests thereon, or adopt a shareholder resolution on the increase or decrease of Party C’s registered capital or otherwise modify the structure of the registered capital.
(f) Cause any merger or association of Party C with any persons to be approved at the shareholders’ meeting of Party C, or acquire investments from any persons or make an investment to any persons, or carry out reorganization in any other form.
(g) Cause any winding-up, liquidation or dissolution and other matters of Party C to be approved at the shareholders’ meeting of Party C.
3.2.7 Before Party A (or its designated third party) exercises its option and obtains all of Party C’s shares or assets, Grantors undertake that:
(a) They will forthwith notify Party A in writing of any suits, arbitration arbitrations or administrative proceedings that have arisen pending or may arise in relation to the shares owned by them threatened against assets, business or revenues of any circumstances that may have any adverse effect on such shares.Sichuan Time Share;
(b) They will cause the shareholders’ meeting of Party C to examine and approve the transfer of the purchased shares as specified in this Agreement, cause Party C to amend its articles of association so as to reflect any changes of Party C’s shares after Party A and/or its designated third party exercises the option according to this Agreement and other changes as set forth herein and immediately apply to the authorities of the PRC for approval (if required by law) and change of registration, and cause the shareholders’ meeting of Party C to approve and appoint such persons as designated by Party A and/or its designated third party as Party C’s director and legal representative (if necessary).
(c) Before Party A and/or its designated third party exercises the option, they will enter into 4.2.3. To execute all necessary or appropriate documents, take all necessary or appropriate actions and make bring all necessary or appropriate accusations claims or make all necessary and appropriate defenses for against all claims in order to maintain their lawful and effective ownership Sichuan Time Share’s rights over the appropriate shares.its assets;
(d) Upon Party A’s request at any time, they will unconditionally transfer their shares to Party A and/or its designated third party at the time specified 4.2.4. To vote for Persons recommended or nominated by Party A as Sichuan Time Share’s directors at shareholders’ meetings of Sichuan Time Share, and waive their right of first refusal against any other shareholders of Party C in respect of the above transfer of shares by them according to Party A’s instructions.
(e) They will strictly abide by this Agreement and other agreements jointly cause such directors to vote for Persons recommended or severally entered into by and between Grantors and Party A, conscientiously perform their obligations under such agreements and will not do any acts/omissions that are likely to affect the validity and enforceability of such agreements.
3.3 Party C and Grantors hereby jointly and severally make the following representations, warranties and undertakings to Party A:
3.3.1 Except as agreed nominated by Party A (or its designated third party) in writing, before Party A (or its designated third party) exercises its option and obtains all of Party Cas Sichuan Time Share’s shares or interests, Party C shall not:
(a) Sell, assign, mortgage or otherwise dispose of any assets, business or incomes or allow to create any other security interests thereon (excluding those that arise in the ordinary or daily business course or have been disclosed to and agreed by Party A expressly in writing in advance)senior management;
(b) Enter into any transactions (excluding those that arise in 4.2.5. Ensure the ordinary or daily business course or have been disclosed to continuous validity of all permits, licenses and agreed by Party A expressly in writing in advance) that will or may have materially adverse effects on its assets, liabilities, operation, shares and other legitimate rights;
(c) Distribute any dividends or bonuses to each shareholder in any form;
(d) Incur, inherit, guarantee or allow the existence of any debts other than (i) any debts that arise in the ordinary or daily business course rather than by borrowing, and (ii) any debts that have been disclosed to and agreed by Party A expressly in writing in advance;
(e) Sign any significant contracts other than those signed in the ordinary business course (approvals necessary for the purpose business of this Article, if the amount under a contract is more than RMB50,000, such contract shall be deemed to be a significant contract);
(f) Adopt a shareholder resolution on the increase or decrease of Party C’s registered capital or otherwise modify the structure of the registered capital;
(g) Supplement, modify or amend Party C’s articles of association in any form; and
(h) Enter into merge or association with any persons, or acquire investments from any persons or make an investment to any personsSichuan Time Share.
3.3.2 On the date of signing this Agreement and each Delivery Date, Party C has no outstanding debts other than (i) any debts arising in its ordinary business course; and (ii) any debts that have been disclosed to and agreed by Party A expressly in writing in advance.
3.3.3 On the date of signing this Agreement and each Delivery Date, there is no suit, arbitration or administrative proceedings that are ongoing or may occur in relation to the shares, Party C’s assets or that may have a substantial impact on the performance of this Agreement by Party C other than those that have been disclosed to and agreed by Party A expressly in writing in advance.
3.3.4 Party C has not been declared bankrupt.
3.3.5 Party C hereby undertakes to Party A that it will comply with all laws and regulations applicable to the acquisition of shares and assets within the term of this Agreement, bear all expenses arising out of the share transfer and handle all procedures necessary for enabling Party A or its designated third party to become Party C’s shareholder, including but not limited to assisting Party A in obtaining any necessary approvals in relation to the share transfer from the approval authorities, submitting the relevant applications required for handling the share change registration to the competent administrative department of industry and commerce and amending the register of shareholders.
Appears in 1 contract
Samples: Call Option Agreement (China Time Share Media Co. LTD)
REPRESENTATIONS, WARRANTIES AND UNDERTAKINGS. 3.1 Grantors jointly 2.1 Party B hereby represents, warrants and severally make the following representations and warrantiesundertakes that:
3.1.1 On (1) Party B is the date only lawful holder of signing this Agreement the Transferred Equity Interest and each Delivery Datehas the power and right to execute, Grantors have the powers, rights, authority and ability to sign and deliver this Agreement and any share transfer agreement (hereinafter referred to as “Transfer Agreement”) signed by them as a party thereto for each share transfer according to this Agreement and to perform their the obligations under this Agreement and any Transfer Agreementhereunder. This Agreement will legally and any Transfer Agreement to which they are a party shall constitute their legal, effective validly bind Party B and binding obligations that are is enforceable on them according to the provisions thereof once signed.its provisions;
3.1.2 No signing and delivery (2) Party B has not sold, transferred, pledged or otherwise disposed of this Agreement or any Transfer Agreement and no performance by Grantors of their obligations under this Agreement or any Transfer Agreement shall (i) result in any violation of any relevant laws and regulations of the PRC; (ii) conflict with the articles of association its equity interests or other organizational documents; (iii) result interests in any breach of any binding agreements Party D, or instruments to which they are a party or constitute any breach of contract under any binding agreements or instruments to which they are a party; (iv) result in any breach of any licenses or approvals issued by permitted setting up encumbrances thereon except the relevant competent government departments to them; or (v) cause any licenses or approvals issued by the relevant competent government departments to them to be suspended or revoked or attached with any conditions;
3.1.3 There is no suit, arbitration or other judicial or administrative proceedings that are pending or may have a substantial impact on the performance of this Agreement or any Transfer Agreement.
3.1.4 Grantors have good and marketable ownership of all shares of Party C. There are no pledges, liabilities equity interest pledge and other third party encumbrances on Party C’s shares held by Grantors other than rights setting up for the pledge under the Equity Pledge Agreement.
3.1.5 Grantors have disclosed to Party A all circumstances that may have a material adverse effect on the performance of this Agreement.
3.1.6 The option granted by Grantors to Party A is exclusive, and Grantors have not otherwise granted any third party any other options or similar rights before or when granting the option to Party A.
3.2 Grantors jointly and severally make the following undertakings:
3.2.1 Within the term of this Agreement, Grantors will not create any pledges, liabilities and any other third party encumbrances on Party C’s shares held by them other than those under the Equity Pledge Agreement separately signed by Grantors and Party A nor transfer, donate or otherwise dispose of any shares held by them to any third party other than the Parties to this Agreement.
3.2.2 Within the term of this Agreement, Grantors will not otherwise grant any other options or similar rights to any third party.
3.2.3 Within the term of this Agreement, Grantors will cause and ensure that the business carried out by Party C conforms to the applicable laws, regulations, rules and other management regulations and documents issued by the competent government departments and that there are no breach of the above provisions that results in a major adverse impact on the business or assets of the company.
3.2.4 Grantors will maintain the valid existence interest of Party C in accordance with good financial and commercial standards and practices, operate their business and deal with affairs in a prudent and efficient manner, use their best efforts to obtain and maintain any permits, licenses and approvals necessary for Party C’s continuous operation and ensure that any such permits, licenses and approvals will not be canceled, withdrawn or declared null and void.
3.2.5 Grantors will provide Party A with all Party C’s operation and financial information at Party A’s request.
3.2.6 Except as expressly agreed by Party A (or its designated third party) in writing, before Party A (or its designated third party) exercises its option and obtains all of Party C’s shares or assets, Grantors shall not jointly or individually:;
(a3) Supplement or modify Party C’s constitutional documents in any form, and such supplements, alterations or modifications will have substantial adverse effects on any assets, responsibilities, operation, shares and other legal rights of Party C (excluding the same proportion of capital increase for the purpose of meeting the legal requirements) or may affect the effective performance of this Agreement and other agreements signed by Party A, Grantors and Party C.
(b) Cause Party C B agrees to enter into or do any transactions or acts (excluding those that arise in the ordinary or daily business course or have been disclosed to and agreed by Party A expressly in writing in advance) that will have materially adverse effects on its assets, liabilities, operation, shares and other legitimate rights.
(c) Cause any resolutions on the distribution of dividends or bonuses to be adopted pass a resolution at the shareholders’ meeting of Party C.D regarding the transfer of the Transferred Equity Interest; and
(d4) SellParty B agrees to assist Party C in the amendment of registration with relevant Industry and Commerce administrative authorities regarding the Transferred Equity Interest after signing the Agreement.
2.2 Party C hereby represents, assignwarrants and undertakes that:
(1) Party C has the power and right to execute, mortgage or otherwise dispose of any legal or beneficial interests on deliver this Agreement and perform the obligations thereunder. This Agreement will legally and validly bind Party C and is enforceable according to its provisions;
(2) Party C agrees to enter into a loan agreement with Party A according to terms and conditions agreed by Party A; and
(3) Party C, as the shareholder of Party D, agrees to pledge all its equity interest in Party D to Party A and authorize Party A the option to purchase such equity interest; and Party C agrees to enter into the Equity Interest Pledge Agreement, the Equity Interest Purchase Agreement a business operation agreement and POA according to Party A’s shares or allow to create any other security interests thereon at any time from requirement on the effective date of this Agreement.
(e) Cause any sales, transfer, mortgage or otherwise disposal of any legal or beneficial interests on shares to be approved at the shareholders’ meeting of Party C, or allow to create any other security interests thereon, or adopt a shareholder resolution on the increase or decrease of Party C’s registered capital or otherwise modify the structure of the registered capital.
(f) Cause any merger or association of Party C with any persons to be approved at the shareholders’ meeting of Party C, or acquire investments from any persons or make an investment to any persons, or carry out reorganization in any other form.
(g) Cause any winding-up, liquidation or dissolution and other matters of Party C to be approved at the shareholders’ meeting of Party C.
3.2.7 Before Party A (or its designated third party) exercises its option and obtains all of Party C’s shares or assets, Grantors undertake that:
(a) They will forthwith notify Party A in writing of any suits, arbitration or administrative proceedings that have arisen or may arise in relation to the shares owned by them or of any circumstances that may have any adverse effect on such shares.
(b) They will cause the shareholders’ meeting of Party C to examine and approve the transfer of the purchased shares as specified in this Agreement, cause Party C to amend its articles of association so as to reflect any changes of Party C’s shares after Party A and/or its designated third party exercises the option according to this Agreement and other changes as set forth herein and immediately apply to the authorities of the PRC for approval (if required by law) and change of registration, and cause the shareholders’ meeting of Party C to approve and appoint such persons as designated by Party A and/or its designated third party as Party C’s director and legal representative (if necessary).
(c) Before Party A and/or its designated third party exercises the option, they will enter into all necessary or appropriate documents, take all necessary or appropriate actions and make all necessary or appropriate accusations or make all necessary and appropriate defenses for all claims in order to maintain their lawful and effective ownership over the appropriate shares.
(d) Upon Party A’s request at any time, they will unconditionally transfer their shares to Party A and/or its designated third party at the time specified by Party A and waive their right of first refusal against any other shareholders of Party C in respect of the above transfer of shares by them according to Party A’s instructions.
(e) They will strictly abide by this Agreement and other agreements jointly or severally entered into by and between Grantors and Party A, conscientiously perform their obligations under such agreements and will not do any acts/omissions that are likely to affect the validity and enforceability of such agreements.
3.3 Party C and Grantors hereby jointly and severally make the following representations, warranties and undertakings to Party A:
3.3.1 Except as agreed by Party A (or its designated third party) in writing, before Party A (or its designated third party) exercises its option and obtains all of Party C’s shares or interests, Party C shall not:
(a) Sell, assign, mortgage or otherwise dispose of any assets, business or incomes or allow to create any other security interests thereon (excluding those that arise in the ordinary or daily business course or have been disclosed to and agreed by Party A expressly in writing in advance);
(b) Enter into any transactions (excluding those that arise in the ordinary or daily business course or have been disclosed to and agreed by Party A expressly in writing in advance) that will or may have materially adverse effects on its assets, liabilities, operation, shares and other legitimate rights;
(c) Distribute any dividends or bonuses to each shareholder in any form;
(d) Incur, inherit, guarantee or allow the existence of any debts other than (i) any debts that arise in the ordinary or daily business course rather than by borrowing, and (ii) any debts that have been disclosed to and agreed by Party A expressly in writing in advance;
(e) Sign any significant contracts other than those signed in the ordinary business course (for the purpose of this Article, if the amount under a contract is more than RMB50,000, such contract shall be deemed to be a significant contract);
(f) Adopt a shareholder resolution on the increase or decrease of Party C’s registered capital or otherwise modify the structure of the registered capital;
(g) Supplement, modify or amend Party C’s articles of association in any form; and
(h) Enter into merge or association with any persons, or acquire investments from any persons or make an investment to any persons.
3.3.2 On the date of signing this Agreement and each Delivery Date, Party C has no outstanding debts other than (i) any debts arising in its ordinary business course; and (ii) any debts that have been disclosed to and agreed by Party A expressly in writing in advance.
3.3.3 On the date of signing this Agreement and each Delivery Date, there is no suit, arbitration or administrative proceedings that are ongoing or may occur in relation to the shares, Party C’s assets or that may have a substantial impact on the performance of this Agreement by Party C other than those that have been disclosed to and agreed by Party A expressly in writing in advance.
3.3.4 Party C has not been declared bankrupt.
3.3.5 Party C hereby undertakes to Party A that it will comply with all laws and regulations applicable to the acquisition of shares and assets within the term of this Agreement, bear all expenses arising out of the share transfer and handle all procedures necessary for enabling Party A or its designated third party to become Party C’s shareholder, including but not limited to assisting Party A in obtaining any necessary approvals in relation to the share transfer from the approval authorities, submitting the relevant applications required for handling the share change registration to the competent administrative department of industry and commerce and amending the register of shareholders.
Appears in 1 contract
Samples: Loan Assignment and Equity Interest Transfer Agreement (Sohu Com Inc)
REPRESENTATIONS, WARRANTIES AND UNDERTAKINGS. 3.1 The Grantors hereby jointly and severally make the following representations represent and warrantieswarrant that:
3.1.1 On 3.1.1. as of the date of signing this Agreement hereof and each Delivery Closing Date, each of the Grantors have has the powerspower, rightsright, authority and ability capacity to sign execute and deliver this Agreement and any share equity interest transfer agreement (hereinafter referred to as the “Transfer Agreement”) signed by them as executed in connection with each transfer of the equity interest contemplated hereunder to which it is a party thereto for each share transfer according to this Agreement party, and to perform their its obligations under this Agreement and any Transfer Agreement. This Once executed, this Agreement and any the Transfer Agreement to which they are it is a party shall will constitute their its legal, effective valid and binding obligations that are obligation and enforceable on them according to against it in accordance with its terms;
3.1.2. Neither the provisions thereof once signed.
3.1.2 No signing execution and delivery of this Agreement or nor the fulfillment of any of each Grantor’s obligations hereunder and under any Transfer Agreement and no performance by Grantors of their obligations under this Agreement or any Transfer Agreement shall will: (i) result in any a violation of any relevant applicable PRC laws and regulations of the PRCregulations; (ii) conflict with the articles of association or any other organizational documentsdocuments of Party C; (iii) result in any a breach of any binding agreements agreement or instruments instrument to which they are it is a party or by which it is bound, or constitute any a breach of contract under any binding agreements or instruments to which they are a partythereunder; (iv) result in any breach a violation of any licenses permit or approvals approval issued to it by the relevant competent government departments to themauthority; or (v) cause any licenses of its permits or approvals issued by the relevant competent government departments to them authority to be suspended suspended, cancelled or revoked or attached imposed with any additional conditions;
3.1.3 There is 3.1.3. there are currently no suitpending or threatened litigations, arbitration arbitrations or other judicial or administrative proceedings that are pending or may have a substantial impact on materially affect the performance of this Agreement or any Transfer Agreement.;
3.1.4 Grantors have 3.1.4. each Grantor has good and marketable ownership of all shares of the equity interests in Party C. There are no pledges, liabilities and other third party encumbrances on Party C’s shares held by Grantors other than Except for the pledge under the Equity Interest Pledge Agreement., the equity interests held by the Grantors in Party C are free from any other pledge, liabilities or other third party encumbrances;
3.1.5 3.1.5. the Grantors have disclosed to Party A all circumstances that may have a material adverse effect on the performance of this Agreement.; and
3.1.6 The option 3.1.6. the Option is granted by the Grantors to Party A is exclusive, on an exclusive basis and Grantors have not otherwise granted any no other third party any other options option or similar rights before are granted by the Grantors in any other manner prior to or when granting concurrently with the option grant of Option to Party A.A hereunder.
3.2 The Grantors hereby jointly and severally make the following undertakingsundertake that:
3.2.1 Within 3.2.1. Unless provided under the Equity Interest Pledge agreement, none of them will create any pledge, liabilities or other third party encumbrances on the equity interests they hold in Party C (for the benefits of a third person other than the Parties), nor will they transfer, grant or otherwise dispose of the equity interests they hold to any third person other than the Parties hereto;
3.2.2. none of them will grant any other third party with an option or a similar right in any other manner throughout the term of this Agreement, Grantors will not create any pledges, liabilities and any other third party encumbrances on Party C’s shares held by them other than those under the Equity Pledge Agreement separately signed by Grantors and Party A nor transfer, donate or otherwise dispose of any shares held by them to any third party other than the Parties to this Agreement.;
3.2.2 Within 3.2.3. throughout the term of this Agreementhereof, Grantors will not otherwise grant any other options or similar rights to any third party.
3.2.3 Within the term of this Agreement, Grantors will cause and ensure that the business carried out by Party C conforms to conducts its business in compliance with the applicable laws, regulations, rules and other management regulations rules and documents issued promulgated by the competent government departments authorities, and that there are is no breach violation of the above provisions foregoing stipulation that results in a major may have material adverse impact effect on the business conduct or assets of the company.;
3.2.4 Grantors 3.2.4. they will follow the sound financial and commercial standards and practices to maintain the valid existence of Party C in accordance with good financial C, diligently and commercial standards and practices, operate their effectively carry out its business and deal with affairs in a prudent and efficient mannerits matters, use their best efforts to obtain and maintain any the permits, licenses and approvals necessary for Party C’s continuous operation its continued operation, and ensure make sure that any such permits, licenses and approvals will not be canceled, withdrawn or declared null and void.invalid;
3.2.5 Grantors 3.2.5. they will provide Party A with all materials relating to Party C’s operation operations and financial information at Party A’s matters upon its request.;
3.2.6 Except as expressly agreed by 3.2.6. unless and until Party A (or its designated third party) in writinghas exercised the Option to acquire all equity interests or assets of Party C, before except with an express written consent from Party A (or its designated third party) exercises its option and obtains all ), none of Party C’s shares or assetsthe Grantors may, Grantors shall not jointly or individuallyseverally:
(a) Supplement supplement, change or modify amend the articles of association of Party C’s constitutional documents C in any form, and such supplements, alterations or modifications will way that may have substantial material adverse effects effect on any the assets, responsibilitiesliabilities, operationoperations, shares equity and other legal legitimate rights of Party C (excluding other than the same proportion of corresponding pro-rata capital increase for to satisfy the purpose requirements of meeting the legal requirementslaw) or may affect the effective performance of this Agreement and such other agreements signed entered into by and between Party A, the Grantors and Party C.C;
(b) Cause cause Party C to enter into conclude or do conduct any transactions transaction or acts act that will have material adverse effect on the assets, liabilities, operations, equity and other legitimate rights of Party C (excluding other than those that arise arising in the ordinary or daily day-to-day course of business course or that have been disclosed to and agreed by Party A expressly in writing in advance) that will have materially adverse effects on its assets, liabilities, operation, shares and other legitimate rights.obtained the prior express written consent of Party A);
(c) Cause any resolutions on the distribution of dividends or bonuses to be adopted at the shareholders’ meeting of Party C.
(d) Sell, assign, mortgage or otherwise dispose of any legal or beneficial interests on Party C’s shares or allow to create any other security interests thereon at any time from the effective date of this Agreement.
(e) Cause any sales, transfer, mortgage or otherwise disposal of any legal or beneficial interests on shares to be approved at the shareholders’ meeting of Party C, or allow to create any other security interests thereon, or adopt a shareholder resolution on the increase or decrease of Party C’s registered capital or otherwise modify the structure of the registered capital.
(f) Cause any merger or association of Party C with any persons to be approved at the shareholders’ meeting of Party C, or acquire investments from any persons or make an investment to any persons, or carry out reorganization in any other form.
(g) Cause any winding-up, liquidation or dissolution and other matters of Party C to be approved at the shareholders’ meeting of Party C.
3.2.7 Before Party A (or its designated third party) exercises its option and obtains all of Party C’s shares or assets, Grantors undertake that:
(a) They will forthwith notify Party A in writing of any suits, arbitration or administrative proceedings that have arisen or may arise in relation to the shares owned by them or of any circumstances that may have any adverse effect on such shares.
(b) They will cause the shareholders’ meeting of Party C to examine adopt a resolution of dividend or bonus distribution;
(d) sell, transfer, mortgage and approve the transfer otherwise dispose of the purchased shares as specified legal or beneficial interests of any equity interest in this Agreement, cause Party C to amend its articles of association so as to reflect any changes of Party C’s shares after Party A and/or its designated third party exercises , or permit the option according to this Agreement and creation of any other changes as set forth herein and immediately apply to security interest thereupon, at any time following the authorities of the PRC for approval effective date hereof;
(if required by lawe) and change of registration, and cause the shareholders’ meeting of Party C to approve the sale, transfer, mortgage or other disposal of the legal or beneficial interests of any equity interest, or the permission of the creation of any other security interest thereupon, or to adopt a resolution to increase or decrease the registered capital of Party C or otherwise change the structure of its registered capital;
(f) cause the shareholders’ meeting of Party C to approve Party C’s merger or combination with, or acquisition of, or investment in any person, or restructuring in any other form; and
(g) cause the shareholders’ meeting of Party C to approve the closure, liquidation or dissolution of Party C.
3.2.7. unless and appoint until Party A (or its designated third party) has exercised the Option to acquire all equity interests or assets of Party C, each of the Grantors undertakes to:
(a) immediately notify Party A in writing of any existing or threatened litigation, arbitration or administrative proceeding relating to the equity interest it owns or any circumstance that may have any adverse effect on such equity interest;
(b) cause the shareholders’ meeting of Party C to deliberate and approve the transfer of the purchased equity interest contemplated hereunder, and cause Party C to amend its articles of association to reflect the shareholding change and other changes contemplated hereunder of Party C following the exercise of Option by Party A and/or its designated third party in accordance with this Agreement, and to immediately apply for approval to competent PRC authorities (if so required by PRC laws) and handle the change registration, and cause Party C to adopt a shareholders’ resolution to approve the appointment of persons as designated assigned by Party A and/or its designated third party as Party C’s director directors and legal representative (if necessary).) of Party C;
(c) Before prior to the exercise of Option by Party A and/or its designated third party exercises the optionparty, they will enter into execute all necessary or appropriate such documents, take all necessary or appropriate such actions and make all such claims or provide such defenses against all claims as are necessary or appropriate accusations or make all necessary and appropriate defenses for all claims in order to maintain their lawful the Grantors’ legal and effective valid ownership over of the appropriate shares.relevant equity interests;
(d) Upon at the request of Party A’s request A at any time, they will unconditionally transfer their shares the equity interests it holds to Party A and/or its designated third party at within the period of time specified prescribed by Party A A, and waive their the right of first refusal against any it may have on the equity interest transferred by other then shareholders of Party C in respect of the above transfer of shares as instructed by them according to Party A’s instructions.; and
(e) They will strictly abide by comply with the provisions of this Agreement and other agreements jointly or severally entered into executed by and between the Grantors and with Party A, conscientiously perform their diligently fulfil the obligations under such agreements hereunder and will not do thereunder, and refrain from making any actsact/omissions omission that are likely suffices to affect the validity and enforceability of such agreements.
3.3 Party C and the Grantors hereby jointly and severally make the following representationsrepresent, warranties warrant and undertakings to Party Acovenant that:
3.3.1 Except as agreed by 3.3.1. unless and until Party A (or its designated third party) in writinghas exercised the Option to acquire all equity interests or assets of Party C, before except with an express written consent from Party A (or its designated third party) exercises its option and obtains all of Party C’s shares or interests), Party C shall may not:
(a) Sellsell, assigntransfer, mortgage or otherwise dispose of any of its assets, business or incomes revenue, or allow to create permit the creation of any other security interests thereon interest thereupon (excluding other than those that arise arising in the ordinary or daily day-to-day course of business course or that have been disclosed to and agreed by Party A expressly in writing in advanceand obtained the prior express written consent of Party A);
(b) Enter into conclude any transactions (excluding those that arise in the ordinary or daily business course or have been disclosed to and agreed by Party A expressly in writing in advance) transaction that will or may have materially material adverse effects effect on its assets, liabilities, operationoperations, shares equity and other legitimate rightsrights (other than those arising in the ordinary or day-to-day course of business or that have been disclosed to Party A and obtained the prior express written consent of Party A);
(c) Distribute distribute any dividends dividend or bonuses bonus by any means to each shareholder in any formof its shareholders;
(d) Incurincur, inherit, guarantee or allow the existence of any debts other than debt, except for (i) any debts that arise in the debt incurred during its ordinary or daily course of business course rather than by from borrowing, ; and (ii) any debts that have debt which has been disclosed to and agreed by obtained the written consent from Party A expressly in writing in advanceA;
(e) Sign enter into any significant contracts material contract, other than those signed executed in the ordinary course of business course (for the purpose of this ArticleSection, if the amount under a contract is more than RMB50,000, such contract with a value exceeding RMB[50,000] shall be deemed to be as a significant material contract);
(f) Adopt adopt a shareholder shareholders’ resolution on the to increase or decrease of Party C’s its registered capital, or otherwise change its registered capital or otherwise modify the structure of the registered capitalstructure;
(g) Supplementsupplement, modify change or amend Party C’s its articles of association in any formform whatsoever; and
(h) Enter into merge or association with combine with, acquire or invest any persons, or acquire investments from any persons or make an investment to any personsperson.
3.3.2 On 3.3.2. As of the date hereof and as of signing this Agreement and each Delivery Closing Date, Party C has no outstanding debts other than debt, except for those (i) any debts arising in incurred during its ordinary business course; course of business, and (ii) any debts that have been disclosed to and agreed by obtained the written consent from Party A expressly in writing in advance.A.
3.3.3 On 3.3.3. As of the date hereof and as of signing this Agreement and each Delivery Closing Date, there is are no suitpending or threatened litigations, arbitration arbitrations or administrative proceedings that are ongoing or may occur in relation relating to the shares, equity interests or assets of Party C or that may otherwise have material adverse effect on Party C’s assets or that may have a substantial impact on the performance of this Agreement by Party C other than except for those that have been disclosed to and agreed by obtained the written consent from Party A expressly in writing in advance.A.
3.3.4 3.3.4. Party C has is not been declared bankrupt.;
3.3.5 3.3.5. Party C hereby undertakes to Party A that it will comply with all laws and regulations applicable to the acquisition of shares equity interests and assets within asset purchase throughout the term of this Agreement, bear all expenses arising out in connection with the transfer of the share transfer equity interests, and handle go through all necessary procedures necessary for enabling to register Party A or its designated third party to become as shareholder of Party C’s shareholder, including but not limited to without limitation assisting Party A in obtaining any necessary approvals in relation to the share transfer from the approval authoritiesauthority in respect of the transfer of equity interests, submitting the filing relevant applications required application documents necessary for handling the share shareholding change registration to the competent administrative department of industry Administration for Industry and commerce Commerce, and amending updating the register of shareholders.
Appears in 1 contract
Samples: Option Agreement (PPDAI Group Inc.)
REPRESENTATIONS, WARRANTIES AND UNDERTAKINGS. 3.1 The Grantors hereby jointly and severally make the following representations represent and warrantieswarrant that:
3.1.1 On 3.1.1. as of the date of signing this Agreement hereof and each Delivery Closing Date, each of the Grantors have has the powerspower, rightsright, authority and ability capacity to sign execute and deliver this Agreement and any share equity interest transfer agreement (hereinafter referred to as the “Transfer Agreement”) signed by them as executed in connection with each transfer of the equity interest contemplated hereunder to which it is a party thereto for each share transfer according to this Agreement party, and to perform their its obligations under this Agreement and any Transfer Agreement. This Once executed, this Agreement and any the Transfer Agreement to which they are it is a party shall will constitute their its legal, effective valid and binding obligations that are obligation and enforceable on them according to against it in accordance with its terms;
3.1.2. Neither the provisions thereof once signed.
3.1.2 No signing execution and delivery of this Agreement or nor the fulfillment of any of each Grantor’s obligations hereunder and under any Transfer Agreement and no performance by Grantors of their obligations under this Agreement or any Transfer Agreement shall will: (i) result in any a violation of any relevant applicable PRC laws and regulations of the PRCregulations; (ii) conflict with the articles of association or any other organizational documentsdocuments of Party C; (iii) result in any a breach of any binding agreements agreement or instruments instrument to which they are it is a party or by which it is bound, or constitute any a breach of contract under any binding agreements or instruments to which they are a partythereunder; (iv) result in any breach a violation of any licenses permit or approvals approval issued to it by the relevant competent government departments to themauthority; or (v) cause any licenses of its permits or approvals issued by the relevant competent government departments to them authority to be suspended suspended, cancelled or revoked or attached imposed with any additional conditions;
3.1.3 There is 3.1.3. there are currently no suitpending or threatened litigations, arbitration arbitrations or other judicial or administrative proceedings that are pending or may have a substantial impact on materially affect the performance of this Agreement or any Transfer Agreement.;
3.1.4 Grantors have 3.1.4. each Grantor has good and marketable ownership of all shares of the equity interests in Party C. There are no pledges, liabilities and other third party encumbrances on Party C’s shares held by Grantors other than Except for the pledge under the Equity Interest Pledge Agreement., the equity interests held by the Grantors in Party C are free from any other pledge, liabilities or other third party encumbrances;
3.1.5 3.1.5. the Grantors have disclosed to Party A all circumstances that may have a material adverse effect on the performance of this Agreement.; and
3.1.6 The option 3.1.6. the Option is granted by the Grantors to Party A is exclusive, on an exclusive basis and Grantors have not otherwise granted any no other third party any other options option or similar rights before are granted by the Grantors in any other manner prior to or when granting concurrently with the option grant of Option to Party A.A hereunder.
3.2 The Grantors hereby jointly and severally make the following undertakingsundertake that:
3.2.1 Within 3.2.1. Unless provided under the Equity Interest Pledge agreement, none of them will create any pledge, liabilities or other third party encumbrances on the equity interests they hold in Party C (for the benefits of a third person other than the Parties), nor will they transfer, grant or otherwise dispose of the equity interests they hold to any third person other than the Parties hereto;
3.2.2. none of them will grant any other third party with an option or a similar right in any other manner throughout the term of this Agreement, Grantors will not create any pledges, liabilities and any other third party encumbrances on Party C’s shares held by them other than those under the Equity Pledge Agreement separately signed by Grantors and Party A nor transfer, donate or otherwise dispose of any shares held by them to any third party other than the Parties to this Agreement.;
3.2.2 Within 3.2.3. throughout the term of this Agreementhereof, Grantors will not otherwise grant any other options or similar rights to any third party.
3.2.3 Within the term of this Agreement, Grantors will cause and ensure that the business carried out by Party C conforms to conducts its business in compliance with the applicable laws, regulations, rules and other management regulations rules and documents issued promulgated by the competent government departments authorities, and that there are is no breach violation of the above provisions foregoing stipulation that results in a major may have material adverse impact effect on the business conduct or assets of the company.;
3.2.4 Grantors 3.2.4. they will follow the sound financial and commercial standards and practices to maintain the valid existence of Party C in accordance with good financial C, diligently and commercial standards and practices, operate their effectively carry out its business and deal with affairs in a prudent and efficient mannerits matters, use their best efforts to obtain and maintain any the permits, licenses and approvals necessary for Party C’s continuous operation its continued operation, and ensure make sure that any such permits, licenses and approvals will not be canceled, withdrawn or declared null and void.invalid;
3.2.5 Grantors 3.2.5. they will provide Party A with all materials relating to Party C’s operation operations and financial information at Party A’s matters upon its request.;
3.2.6 Except as expressly agreed by 3.2.6. unless and until Party A (or its designated third party) in writinghas exercised the Option to acquire all equity interests or assets of Party C, before except with an express written consent from Party A (or its designated third party) exercises its option and obtains all ), none of Party C’s shares or assetsthe Grantors may, Grantors shall not jointly or individuallyseverally:
(a) Supplement supplement, change or modify amend the articles of association of Party C’s constitutional documents C in any form, and such supplements, alterations or modifications will way that may have substantial material adverse effects effect on any the assets, responsibilitiesliabilities, operationoperations, shares equity and other legal legitimate rights of Party C (excluding other than the same proportion of corresponding pro-rata capital increase for to satisfy the purpose requirements of meeting the legal requirementslaw) or may affect the effective performance of this Agreement and such other agreements signed entered into by and between Party A, the Grantors and Party C.C;
(b) Cause cause Party C to enter into conclude or do conduct any transactions transaction or acts act that will have material adverse effect on the assets, liabilities, operations, equity and other legitimate rights of Party C (excluding other than those that arise arising in the ordinary or daily day-to-day course of business course or that have been disclosed to and agreed by Party A expressly in writing in advance) that will have materially adverse effects on its assets, liabilities, operation, shares and other legitimate rights.obtained the prior express written consent of Party A);
(c) Cause any resolutions on the distribution of dividends or bonuses to be adopted at the shareholders’ meeting of Party C.
(d) Sell, assign, mortgage or otherwise dispose of any legal or beneficial interests on Party C’s shares or allow to create any other security interests thereon at any time from the effective date of this Agreement.
(e) Cause any sales, transfer, mortgage or otherwise disposal of any legal or beneficial interests on shares to be approved at the shareholders’ meeting of Party C, or allow to create any other security interests thereon, or adopt a shareholder resolution on the increase or decrease of Party C’s registered capital or otherwise modify the structure of the registered capital.
(f) Cause any merger or association of Party C with any persons to be approved at the shareholders’ meeting of Party C, or acquire investments from any persons or make an investment to any persons, or carry out reorganization in any other form.
(g) Cause any winding-up, liquidation or dissolution and other matters of Party C to be approved at the shareholders’ meeting of Party C.
3.2.7 Before Party A (or its designated third party) exercises its option and obtains all of Party C’s shares or assets, Grantors undertake that:
(a) They will forthwith notify Party A in writing of any suits, arbitration or administrative proceedings that have arisen or may arise in relation to the shares owned by them or of any circumstances that may have any adverse effect on such shares.
(b) They will cause the shareholders’ meeting of Party C to examine adopt a resolution of dividend or bonus distribution;
(d) sell, transfer, mortgage and approve the transfer otherwise dispose of the purchased shares as specified legal or beneficial interests of any equity interest in this Agreement, cause Party C to amend its articles of association so as to reflect any changes of Party C’s shares after Party A and/or its designated third party exercises , or permit the option according to this Agreement and creation of any other changes as set forth herein and immediately apply to security interest thereupon, at any time following the authorities of the PRC for approval effective date hereof;
(if required by lawe) and change of registration, and cause the shareholders’ meeting of Party C to approve the sale, transfer, mortgage or other disposal of the legal or beneficial interests of any equity interest, or the permission of the creation of any other security interest thereupon, or to adopt a resolution to increase or decrease the registered capital of Party C or otherwise change the structure of its registered capital;
(f) cause the shareholders’ meeting of Party C to approve Party C’s merger or combination with, or acquisition of, or investment in any person, or restructuring in any other form; and
(g) cause the shareholders’ meeting of Party C to approve the closure, liquidation or dissolution of Party C.
3.2.7. unless and appoint until Party A (or its designated third party) has exercised the Option to acquire all equity interests or assets of Party C, each of the Grantors undertakes to:
(a) immediately notify Party A in writing of any existing or threatened litigation, arbitration or administrative proceeding relating to the equity interest it owns or any circumstance that may have any adverse effect on such equity interest;
(b) cause the shareholders’ meeting of Party C to deliberate and approve the transfer of the purchased equity interest contemplated hereunder, and cause Party C to amend its articles of association to reflect the shareholding change and other changes contemplated hereunder of Party C following the exercise of Option by Party A and/or its designated third party in accordance with this Agreement, and to immediately apply for approval to competent PRC authorities (if so required by PRC laws) and handle the change registration, and cause Party C to adopt a shareholders’ resolution to approve the appointment of persons as designated assigned by Party A and/or its designated third party as Party C’s director directors and legal representative (if necessary).) of Party C;
(c) Before prior to the exercise of Option by Party A and/or its designated third party exercises the optionparty, they will enter into execute all necessary or appropriate such documents, take all necessary or appropriate such actions and make all such claims or provide such defenses against all claims as are necessary or appropriate accusations or make all necessary and appropriate defenses for all claims in order to maintain their lawful the Grantors’ legal and effective valid ownership over of the appropriate shares.relevant equity interests;
(d) Upon at the request of Party A’s request A at any time, they will unconditionally transfer their shares the equity interests it holds to Party A and/or its designated third party at within the period of time specified prescribed by Party A A, and waive their the right of first refusal against any it may have on the equity interest transferred by other then shareholders of Party C in respect of the above transfer of shares as instructed by them according to Party A’s instructions.; and
(e) They will strictly abide by comply with the provisions of this Agreement and other agreements jointly or severally entered into executed by and between the Grantors and with Party A, conscientiously perform their diligently fulfil the obligations under such agreements hereunder and will not do thereunder, and refrain from making any actsact/omissions omission that are likely suffices to affect the validity and enforceability of such agreements.
3.3 Party C and the Grantors hereby jointly and severally make the following representationsrepresent, warranties warrant and undertakings to Party Acovenant that:
3.3.1 Except as agreed by 3.3.1. unless and until Party A (or its designated third party) in writinghas exercised the Option to acquire all equity interests or assets of Party C, before except with an express written consent from Party A (or its designated third party) exercises its option and obtains all of Party C’s shares or interests), Party C shall may not:
(a) Sellsell, assigntransfer, mortgage or otherwise dispose of any of its assets, business or incomes revenue, or allow to create permit the creation of any other security interests thereon interest thereupon (excluding other than those that arise arising in the ordinary or daily day-to-day course of business course or that have been disclosed to and agreed by Party A expressly in writing in advanceand obtained the prior express written consent of Party A);
(b) Enter into conclude any transactions (excluding those that arise in the ordinary or daily business course or have been disclosed to and agreed by Party A expressly in writing in advance) transaction that will or may have materially material adverse effects effect on its assets, liabilities, operationoperations, shares equity and other legitimate rightsrights (other than those arising in the ordinary or day-to-day course of business or that have been disclosed to Party A and obtained the prior express written consent of Party A);
(c) Distribute distribute any dividends dividend or bonuses bonus by any means to each shareholder in any formof its shareholders;
(d) Incurincur, inherit, guarantee or allow the existence of any debts other than debt, except for (i) any debts that arise in the debt incurred during its ordinary or daily course of business course rather than by from borrowing, ; and (ii) any debts that have debt which has been disclosed to and agreed by obtained the written consent from Party A expressly in writing in advanceA;
(e) Sign enter into any significant contracts material contract, other than those signed executed in the ordinary course of business course (for the purpose of this ArticleSection, if the amount under a contract is more than RMB50,000, such contract with a value exceeding RMB50,000 shall be deemed to be as a significant material contract);
(f) Adopt adopt a shareholder shareholders’ resolution on the to increase or decrease of Party C’s its registered capital, or otherwise change its registered capital or otherwise modify the structure of the registered capitalstructure;
(g) Supplementsupplement, modify change or amend Party C’s its articles of association in any formform whatsoever; and
(h) Enter into merge or association with combine with, acquire or invest any persons, or acquire investments from any persons or make an investment to any personsperson.
3.3.2 On 3.3.2. As of the date hereof and as of signing this Agreement and each Delivery Closing Date, Party C has no outstanding debts other than debt, except for those (i) any debts arising in incurred during its ordinary business course; course of business, and (ii) any debts that have been disclosed to and agreed by obtained the written consent from Party A expressly in writing in advance.A.
3.3.3 On 3.3.3. As of the date hereof and as of signing this Agreement and each Delivery Closing Date, there is are no suitpending or threatened litigations, arbitration arbitrations or administrative proceedings that are ongoing or may occur in relation relating to the shares, equity interests or assets of Party C or that may otherwise have material adverse effect on Party C’s assets or that may have a substantial impact on the performance of this Agreement by Party C other than except for those that have been disclosed to and agreed by obtained the written consent from Party A expressly in writing in advance.A.
3.3.4 3.3.4. Party C has is not been declared bankrupt.;
3.3.5 3.3.5. Party C hereby undertakes to Party A that it will comply with all laws and regulations applicable to the acquisition of shares equity interests and assets within asset purchase throughout the term of this Agreement, bear all expenses arising out in connection with the transfer of the share transfer equity interests, and handle go through all necessary procedures necessary for enabling to register Party A or its designated third party to become as shareholder of Party C’s shareholder, including but not limited to without limitation assisting Party A in obtaining any necessary approvals in relation to the share transfer from the approval authoritiesauthority in respect of the transfer of equity interests, submitting the filing relevant applications required application documents necessary for handling the share shareholding change registration to the competent administrative department of industry Administration for Industry and commerce Commerce, and amending updating the register of shareholders.
Appears in 1 contract
Samples: Option Agreement (PPDAI Group Inc.)
