REPRESENTATIONS, WARRANTIES AND UNDERTAKINGS. 5.1 Each of the Sellers represents and warrants to the Buyer that each Seller Warranty is true, accurate and not misleading at the date of this Agreement. Immediately before Closing, each of the Sellers is deemed to warrant to the Buyer that each Seller Warranty is true, accurate and not misleading by reference to the facts and circumstances on each day before Closing, and for this purpose only any references in the Seller Warranties to the date of this Agreement shall be construed as references to the relevant date. Unless otherwise set out in this Agreement, no other warranty is given by the Sellers. 5.2 Each of the Sellers acknowledges that the Buyer is entering into this Agreement in reliance on each Seller Warranty which has also been given as a representation and with the intention of inducing the Buyer to enter into this Agreement. The Sellers shall not invoke the Buyer’s constructive or imputed knowledge of a fact or circumstance which might make a Seller Warranty untrue, inaccurate or misleading as a defence to a claim for breach of Clause 5.1. 5.3 Each Seller Warranty is to be construed independently and (except where this Agreement provides otherwise) is not limited by a provision of this Agreement or another Warranty. 5.4 Each of the Sellers represents and warrants to the Buyer that: 5.4.1 each of the Sellers is an entity duly organized and validly existing under the laws of its country of origin; 5.4.2 each of the Sellers has the legal right, full power and authority, and has taken all action necessary, to execute, deliver and to exercise its rights, and perform its obligations, under this Agreement and any other documents to be executed by each of the Sellers pursuant to or in connection with this Agreement, which when executed will constitute valid and binding obligations on each Seller and its asset management clients for whose account the Sale Shares are managed and who are the beneficial owners; 5.4.3 the Sale Shares are beneficially owned by the Sellers’ asset management clients in managed accounts over which the Sellers have investment discretion. To the best of the Sellers’ knowledge, there is no other person who has any legal or beneficial interest in the Sale Shares; 5.4.4 each of the Sellers is validly appointed as discretionary investment manager by the beneficial owners in respect of the Sale Shares; 5.4.5 the Sale Shares are beneficially owned by the Sellers’ asset management clients; to the best of the Sellers’ knowledge, the beneficial owners of the Sale Shares have the full legal right to sell the Sale Shares and which are free from any Encumbrances; 5.4.6 upon completion of the Scheme, the Sellers’ asset management clients will be the sole beneficial owners of the New Unicom Shares and the New Unicom ADSs; 5.4.7 each of the Sellers has not created or permitted the creation of any Encumbrance nor entered into any agreement, arrangement or obligation to create or give an Encumbrance, in relation to any of the Sale Shares, the New Unicom Shares and/or the New Unicom ADSs, and to the best of the Sellers’ knowledge, no person has claimed to be entitled to an Encumbrance in relation to any of the Sale Shares, the New Unicom Shares and/or the New Unicom ADSs; 5.4.8 to the extent it held proxy voting authority, each of the Sellers has tendered votes in respect of the Shares underlying the Sale Netcom ADSs in favour of the resolution approving the scheme of arrangement under section 166 of the Companies Ordinance (Cap 32 of the Laws of Hong Kong) between the Company and the shareholders of the Company at the extraordinary general meeting of the Company to be held on 17 September 2008, and any adjournment thereof; 5.4.9 the execution and delivery of, and the performance by each of the Sellers of its obligations under, this Agreement and any other documents to be executed by it pursuant to or in connection with this Agreement will not: (a) result in a breach of any provision of the constitutional or organisational documents of each of the Sellers; (b) result in a breach of or give any third party a right to terminate or modify, or result in the creation of any Encumbrance under, any agreement, licence or other instrument or result in a breach of any order, judgment or decree of any court, governmental agency or regulatory body to which each of the Sellers or its nominee is a party or by which any of the Sellers or its nominee or any of their respective assets is bound; or (c) result in any breach of any contractual covenants or investment management agreement to which each of the Sellers is subject; 5.4.10 each of the Sellers is not a “connected fund manager” (as defined in the Takeovers Code) or a “connected principal trader” (as defined in the Takeovers Code) of the offeror (i.e. Unicom) or the offeree company (i.e. the Company) nor a party acting in concert with the offeror and that consent from the Executive Director of the Corporate Finance Division of the Securities & Futures Commission is not required for the sale of the Sale Shares; 5.4.11 each of the Sellers is not required to obtain any other person’s consent in relation to the sale of the Sale Shares, the New Unicom Shares and the New Unicom ADSs; 5.4.12 each of the Sellers is not a connected person (as such term is defined in the Rules Governing the Listing of Securities on The Hong Kong Stock Exchange Limited) of the Company or Unicom; 5.4.13 no petition has been presented or order made and no meeting convened or resolution passed for the winding up or administration of any of the Sellers or for a provisional liquidator to be appointed in respect of any of the Sellers; 5.4.14 no distress, execution or other process has been levied on any of the assets of any of the Sellers, and no judgment creditor nor any liquidator, provisional liquidator, receiver or an administrative receiver of any of the Sellers has been appointed and there is no reason to believe that such a person might be appointed; 5.4.15 no voluntary arrangement has been proposed in respect of any of the Sellers and their creditors; and 5.4.16 each of the Sellers is not insolvent, or unable to pay its debts, and has not stopped paying its debts as they fall due, and no event analogous to any of the foregoing has occurred in or outside Hong Kong. 5.5 The Buyer represents and warrants to the Sellers that each Buyer Warranty is true, accurate and not misleading at the date of this Agreement. Immediately before Closing, the Buyer is deemed to warrant to the Sellers that each Buyer Warranty is true, accurate and not misleading by reference to the facts and circumstances on each day before Closing, and for this purpose only, any references in the Buyer Warranties to the date of this Agreement shall be construed as references to the relevant date. Unless otherwise set out in this Agreement, no other warranty is given by the Buyer. 5.6 The Buyer acknowledges that each of the Sellers is entering into this Agreement in reliance on each Buyer Warranty which has also been given as a representation and with the intention of inducing the Sellers to enter into this Agreement. The Buyer shall not invoke the Sellers’ constructive or imputed knowledge of a fact or circumstance which might make a Buyer Warranty untrue, inaccurate or misleading as a defence to a claim for breach of Clause 5.5. 5.7 The Buyer represents and warrants to the Sellers that: 5.7.1 the Buyer is a corporation duly organized and validly existing under the laws of its country of origin; 5.7.2 the Buyer has the legal right, full power and authority, and has taken all action necessary, to execute, deliver and to exercise its rights, and perform its obligations, under this Agreement and any other documents to be executed by the Buyer pursuant to or in connection with this Agreement, which when executed will constitute valid and binding obligations on the Buyer; 5.7.3 the execution and delivery of, and the performance by the Buyer of its obligations under, this Agreement and any other documents to be executed by it pursuant to or in connection with this Agreement will not: (a) result in a breach of any provision of the constitutional or organisational documents of the Buyer; or (b) result in a breach of or give any third party a right to terminate or modify, or result in the creation of any Encumbrance under, any agreement, licence or other instrument or result in a breach of any order, judgment or decree of any court, governmental agency or regulatory body to which the Buyer or its nominee is a party or by which any of the Buyer or its nominee or any of their respective assets is bound; 5.7.4 the Buyer is not required to obtain any other person’s consent in relation to the acquisition of the Sale Shares; 5.7.5 no petition has been presented or order made and no meeting convened or resolution passed for the winding up or administration of the Buyer or for a provisional liquidator to be appointed in respect of the Buyer; 5.7.6 no distress, execution or other process has been levied on any of the assets of the Buyer, and no judgment creditor nor any liquidator, provisional liquidator, receiver or an administrative receiver of the Buyer has been appointed and there is no reason to believe that such a person might be appointed; 5.7.7 no voluntary arrangement has been proposed in respect of the Buyer and its creditors; and 5.7.8 the Buyer is not insolvent, or unable to pay its debts, and has not stopped paying its debts as they fall due, and no event analogous to any of the foregoing has occurred in or outside Hong Kong. 5.8 Each of the Sellers undertakes to the Buyer that it shall not dispose of or enter into any agreement or arrangement to dispose of or permit the disposal of any of the Sale Shares, the disposal of which is subject to its discretion from the date of this Agreement and until the Long Stop Date or the date when this Agreement is terminated in accordance with Clause 3.3, whichever is earlier. 5.9 Each of the Sellers further undertakes to the Buyer that it shall exercise or procure to be exercised all the voting rights attaching to the Sale Listed Shares in favour of the resolution approving the Scheme and the Share Proposal at the shareholders’ meeting of the Company to be held on 17 September 2008, and any adjournment thereof.
Appears in 2 contracts
Samples: Share Purchase Agreement (Telefonica S A), Share Purchase Agreement (Telefonica S A)
REPRESENTATIONS, WARRANTIES AND UNDERTAKINGS. 5.1 Each 5.1. For the avoidance of the Sellers represents and warrants to the Buyer that each Seller Warranty is true, accurate and not misleading at the date doubt no term of this Agreement. Immediately before Closing, each of the Sellers Policy (whether express or implied) is deemed to warrant to the Buyer that each Seller Warranty a representation or warranty unless it is true, accurate and not misleading by reference to the facts and circumstances on each day before Closing, and for this purpose only any references in the Seller Warranties to the date of this Agreement shall be construed as references to the relevant date. Unless otherwise expressly set out in this Agreement, no other warranty is given by the SellersArticle 5.
5.2 Each of the Sellers acknowledges that the Buyer is entering into this Agreement in reliance on each Seller Warranty which has also been given as a representation and with the intention of inducing the Buyer to enter into this Agreement5.2. The Sellers shall not invoke the Buyer’s constructive or imputed knowledge of a fact or circumstance which might make a Seller Warranty untruePolicyholder represents, inaccurate or misleading as a defence to a claim for breach of Clause 5.1.
5.3 Each Seller Warranty is to be construed independently warrants and (except where this Agreement provides otherwise) is not limited by a provision of this Agreement or another Warranty.
5.4 Each of the Sellers represents and warrants to the Buyer undertakes that:
5.4.1 each of the Sellers is an entity duly organized and validly existing under the laws of its country of origin;
5.4.2 each of the Sellers has the legal right, full power and authority, and has taken all action necessary, to execute, deliver and to exercise its rights, and perform its obligations, under this Agreement and any other documents to be executed by each of the Sellers pursuant to or in connection with this Agreement, which when executed will constitute valid and binding obligations on each Seller and its asset management clients for whose account the Sale Shares are managed and who are the beneficial owners;
5.4.3 the Sale Shares are beneficially owned by the Sellers’ asset management clients in managed accounts over which the Sellers have investment discretion. To the best of the Sellers’ knowledge, there is no other person who has any legal or beneficial interest in the Sale Shares;
5.4.4 each of the Sellers is validly appointed as discretionary investment manager by the beneficial owners in respect of the Sale Shares;
5.4.5 the Sale Shares are beneficially owned by the Sellers’ asset management clients; to the best of the Sellers’ knowledge, the beneficial owners of the Sale Shares have the full legal right to sell the Sale Shares and which are free from any Encumbrances;
5.4.6 upon completion of the Scheme, the Sellers’ asset management clients will be the sole beneficial owners of the New Unicom Shares and the New Unicom ADSs;
5.4.7 each of the Sellers has not created or permitted the creation of any Encumbrance nor entered into any agreement, arrangement or obligation to create or give an Encumbrance, in relation to any of the Sale Shares, the New Unicom Shares and/or the New Unicom ADSs, and to the best of the Sellers’ knowledge, no person has claimed to be entitled to an Encumbrance in relation to any of the Sale Shares, the New Unicom Shares and/or the New Unicom ADSs;
5.4.8 to the extent it held proxy voting authority, each of the Sellers has tendered votes in respect of the Shares underlying the Sale Netcom ADSs in favour of the resolution approving the scheme of arrangement under section 166 of the Companies Ordinance (Cap 32 of the Laws of Hong Kong) between the Company and the shareholders of the Company at the extraordinary general meeting of the Company to be held on 17 September 2008, and any adjournment thereof;
5.4.9 the execution and delivery of, and the performance by each of the Sellers of its obligations under, this Agreement and any other documents to be executed by it pursuant to or in connection with this Agreement will not:
(a) result in a breach of any provision the Policyholder has ensured that the Borrower has, at Policy Effective Date, obtained all material authorisations and licences which, to the Knowledge of the constitutional or organisational documents of each Information Holders, the Borrower is required to obtain under the regulations of the SellersPolicyholder’s Country and/or the constitutive document of the Borrower for the performance of the Facility Agreement and the Export Contract;
(b) result in a breach of or give any third party a right the Policyholder has, at Policy Effective Date, obtained all material authorisations and licences which, to terminate or modify, or result in the creation of any Encumbrance under, any agreement, licence or other instrument or result in a breach of any order, judgment or decree of any court, governmental agency or regulatory body to which each Knowledge of the Sellers or its nominee Information Holders, the Policyholder is a party or by which any required to obtain under the regulations of the Sellers or its nominee or any Policyholder’s Country and/or the constitutive document of their respective assets is bound; orthe Policyholder for the performance of the Facility Agreement;
(c) result in any breach so far as the Information Holders are aware, as at Policy Effective Date, the Export Contract and Facility Agreement were legally valid, binding and enforceable between the respective parties. The Policyholder shall have satisfied this obligation if a legal opinion of any contractual covenants or investment management agreement counsel, as mutually acceptable, is provided to which each and accepted by EXIM Bank prior to Policy Effective Date;
(d) subject to Article 14, the Policyholder will maintain the Minimum Retained Uninsured Percentage of the Sellers is subject;
5.4.10 each of the Sellers is not a “connected fund manager” (as defined in the Takeovers Code) or a “connected principal trader” (as defined in the Takeovers Code) of the offeror (i.e. Unicom) or the offeree company (i.e. the Company) nor a party acting in concert with the offeror and that consent from the Executive Director of the Corporate Finance Division of the Securities & Futures Commission is not required Insured Transaction uninsured for the sale of the Sale Shares;
5.4.11 each of the Sellers is not required to obtain any other person’s consent in relation to the sale of the Sale Shares, the New Unicom Shares and the New Unicom ADSs;
5.4.12 each of the Sellers is not a connected person Policy Period (as such term is defined in the Rules Governing the Listing of Securities on The Hong Kong Stock Exchange Limited) amount may be reduced from time to time by any repayment or pre-payment of the Company amounts due and payable under the Facility Agreement in accordance with the terms of the Facility Agreement and this Policy or Unicomas reduced from time to time pursuant to Article 8.4. (Cancellation) in this Policy);
5.4.13 (e) no petition has been presented extension of credit shall be granted to the Borrower under the Facility Agreement unless EXIM Bank agrees in writing with or order made and no meeting convened or resolution passed for without additional conditions. If EXIM Bank does agree, an additional premium will be charged to the winding up or administration of any of the Sellers or for a provisional liquidator to be appointed in respect of any of the SellersPolicyholder;
5.4.14 no distress, execution (f) it will not assign or other process has been levied on transfer its rights under the Facility Agreement or this Policy to any third party without prior written consent of the assets of any of the Sellers, and no judgment creditor nor any liquidator, provisional liquidator, receiver or an administrative receiver of any of the Sellers has been appointed and there is no reason to believe that such a person might be appointed;
5.4.15 no voluntary arrangement has been proposed in respect of any of the Sellers and their creditorsEXIM Bank; and
5.4.16 each (g) it has complied with the Framework for Managing Risks of Trade Based Money Laundering and Terrorist Financing issued and amended by the Sellers is not insolventState Bank of Pakistan time and again, or unable in regard to pay its debts, the Obligor and the Borrower and has not stopped paying its debts as they fall due, performed applicable statutory and no event analogous to any of the foregoing has occurred regulatory compliance checks in or outside Hong Kong.
5.5 The Buyer represents and warrants regard to the Sellers that each Buyer Warranty is true, accurate and not misleading at the date of this Agreement. Immediately before Closing, the Buyer is deemed to warrant to the Sellers that each Buyer Warranty is true, accurate and not misleading by reference to the facts and circumstances on each day before Closing, and for this purpose only, any references in the Buyer Warranties to the date of this Agreement shall be construed as references to the relevant date. Unless otherwise set out in this Agreement, no other warranty is given by the BuyerBorrower.
5.6 The Buyer acknowledges that each of the Sellers is entering into this Agreement in reliance on each Buyer Warranty which has also been given as a representation and with the intention of inducing the Sellers to enter into this Agreement. The Buyer shall not invoke the Sellers’ constructive or imputed knowledge of a fact or circumstance which might make a Buyer Warranty untrue, inaccurate or misleading as a defence to a claim for breach of Clause 5.5.
5.7 The Buyer represents and warrants to the Sellers that:
5.7.1 the Buyer is a corporation duly organized and validly existing under the laws of its country of origin;
5.7.2 the Buyer has the legal right, full power and authority, and has taken all action necessary, to execute, deliver and to exercise its rights, and perform its obligations, under this Agreement and any other documents to be executed by the Buyer pursuant to or in connection with this Agreement, which when executed will constitute valid and binding obligations on the Buyer;
5.7.3 the execution and delivery of, and the performance by the Buyer of its obligations under, this Agreement and any other documents to be executed by it pursuant to or in connection with this Agreement will not:
(a) result in a breach of any provision of the constitutional or organisational documents of the Buyer; or
(b) result in a breach of or give any third party a right to terminate or modify, or result in the creation of any Encumbrance under, any agreement, licence or other instrument or result in a breach of any order, judgment or decree of any court, governmental agency or regulatory body to which the Buyer or its nominee is a party or by which any of the Buyer or its nominee or any of their respective assets is bound;
5.7.4 the Buyer is not required to obtain any other person’s consent in relation to the acquisition of the Sale Shares;
5.7.5 no petition has been presented or order made and no meeting convened or resolution passed for the winding up or administration of the Buyer or for a provisional liquidator to be appointed in respect of the Buyer;
5.7.6 no distress, execution or other process has been levied on any of the assets of the Buyer, and no judgment creditor nor any liquidator, provisional liquidator, receiver or an administrative receiver of the Buyer has been appointed and there is no reason to believe that such a person might be appointed;
5.7.7 no voluntary arrangement has been proposed in respect of the Buyer and its creditors; and
5.7.8 the Buyer is not insolvent, or unable to pay its debts, and has not stopped paying its debts as they fall due, and no event analogous to any of the foregoing has occurred in or outside Hong Kong.
5.8 Each of the Sellers undertakes to the Buyer that it shall not dispose of or enter into any agreement or arrangement to dispose of or permit the disposal of any of the Sale Shares, the disposal of which is subject to its discretion from the date of this Agreement and until the Long Stop Date or the date when this Agreement is terminated in accordance with Clause 3.3, whichever is earlier.
5.9 Each of the Sellers further undertakes to the Buyer that it shall exercise or procure to be exercised all the voting rights attaching to the Sale Listed Shares in favour of the resolution approving the Scheme and the Share Proposal at the shareholders’ meeting of the Company to be held on 17 September 2008, and any adjournment thereof.
Appears in 2 contracts
Samples: Bank Master Policy, Bank Master Policy
REPRESENTATIONS, WARRANTIES AND UNDERTAKINGS. 5.1 Each of the Sellers (a) The Borrower hereby represents and warrants for the benefit of the Bank as of any Drawdown Date, and undertakes with the Bank as follows:
(i) the Borrower is a company incorporated with limited liability duly organized, validly existing and in good standing under the laws of the State of Delaware and has the corporate power and authority to make and perform this Agreement and any of the certificates, instruments or agreements herein referred to insofar as they pertain to the Buyer that Borrower and to borrow hereunder and has taken all necessary corporate actions to authorize the execution, delivery and performance of this Agreement and all of the aforesaid documents;
(ii) each Seller Warranty is trueofficer or attorney-in-fact of the Borrower who has executed and delivered this Agreement and the documents referred to in (i) above insofar as they pertain to the Borrower was duly authorized to execute and deliver the same on behalf of the Borrower;
(iii) this Agreement constitutes the legal, accurate valid and not misleading binding obligations of the Borrower enforceable in accordance with its terms (subject, as to enforcement to bankruptcy, insolvency, reorganization and other laws of general applicability relating to or affecting creditors' rights and to general equity principles), and the obligations of the Borrower hereunder rank and will at all times continue to rank at least pari passu in right of payment and in all other respects with all of its other unsecured unsubordinated obligations;
(iv) save as disclosed in writing to the Bank prior to the date of this Agreement. Immediately before Closing, each the Borrower has not given or permitted to exist any specific security on any property or assets of the Sellers is deemed to warrant to the Buyer that each Seller Warranty is trueBorrower (by way of lien, accurate and not misleading by reference to the facts and circumstances on each day before Closingpledge, and mortgage or other charge) for this purpose only any references in the Seller Warranties loan, debt, guarantee or other liability or obligation contracted prior to the date of this Agreement shall be construed and now existing;
(v) the Borrower has no outstanding liabilities or obligations whatsoever for borrowed money, save as references disclosed in writing to the relevant date. Unless otherwise set out in Bank prior to the date of this Agreement;
(vi) neither the execution nor delivery of this Agreement, no other warranty is given by nor the Sellers.
5.2 Each of the Sellers acknowledges that the Buyer is entering into this Agreement in reliance on each Seller Warranty which has also been given as a representation and transactions herein contemplated, nor compliance with the intention of inducing the Buyer to enter into this Agreement. The Sellers shall not invoke the Buyer’s constructive or imputed knowledge of a fact or circumstance which might make a Seller Warranty untrueterms, inaccurate or misleading as a defence to a claim for breach of Clause 5.1.conditions and stipulations hereof will:
5.3 Each Seller Warranty is to be construed independently and (except where this Agreement provides otherwise1) is not limited by a contravene any provision of this Agreement any law, statute, decree, rule or another Warranty.
5.4 Each of the Sellers represents and warrants regulation to the Buyer that:
5.4.1 each of the Sellers is an entity duly organized and validly existing under the laws of its country of origin;
5.4.2 each of the Sellers has the legal right, full power and authority, and has taken all action necessary, to execute, deliver and to exercise its rights, and perform its obligations, under this Agreement and any other documents to be executed by each of the Sellers pursuant to or in connection with this Agreement, which when executed will constitute valid and binding obligations on each Seller and its asset management clients for whose account the Sale Shares are managed and who are the beneficial owners;
5.4.3 the Sale Shares are beneficially owned by the Sellers’ asset management clients in managed accounts over which the Sellers have investment discretion. To the best Borrower is subject, or any judgment, decree, franchise, order or permit applicable to either of the Sellers’ knowledgethem; or
(2) conflict, there is no other person who has or be inconsistent with, or result in any legal or beneficial interest in the Sale Shares;
5.4.4 each of the Sellers is validly appointed as discretionary investment manager by the beneficial owners in respect of the Sale Shares;
5.4.5 the Sale Shares are beneficially owned by the Sellers’ asset management clients; to the best of the Sellers’ knowledgebreach of, the beneficial owners of the Sale Shares have the full legal right to sell the Sale Shares and which are free from any Encumbrances;
5.4.6 upon completion of the Scheme, the Sellers’ asset management clients will be the sole beneficial owners of the New Unicom Shares and the New Unicom ADSs;
5.4.7 each of the Sellers has not created or permitted the creation of any Encumbrance nor entered into any agreement, arrangement or obligation to create or give an Encumbrance, in relation to any of the Sale Sharesterms, the New Unicom Shares and/or the New Unicom ADSscovenants, and to the best of the Sellers’ knowledge, no person has claimed to be entitled to an Encumbrance in relation to any of the Sale Shares, the New Unicom Shares and/or the New Unicom ADSs;
5.4.8 to the extent it held proxy voting authority, each of the Sellers has tendered votes in respect of the Shares underlying the Sale Netcom ADSs in favour of the resolution approving the scheme of arrangement under section 166 of the Companies Ordinance (Cap 32 of the Laws of Hong Kong) between the Company and the shareholders of the Company at the extraordinary general meeting of the Company to be held on 17 September 2008, and any adjournment thereof;
5.4.9 the execution and delivery conditions or provisions of, and the performance by each of the Sellers of its obligations or constitute a default under, this Agreement and any other documents to be executed by it pursuant to or in connection with this Agreement will not:
(a) result in a breach of any provision of the constitutional or organisational documents of each of the Sellers;
(b) result in a breach of or give any third party a right to terminate or modify, or result in the creation or imposition of any Encumbrance underlien, security interest, charge or encumbrance upon any agreementof the property or assets of the Borrower, licence pursuant to the terms of any indenture, mortgage, deed of trust, agreement or other instrument or result in a breach of any orderinstrument, judgment or decree of any court, governmental agency or regulatory body to which each of the Sellers or its nominee Borrower is a party or subject, or by which any of the Sellers Borrower or its nominee or any of their respective assets is may be bound; or
(c3) result cause any limit or restriction on the borrowings or chargings of the Borrower, or any other limitation or restriction on the Borrower (whether imposed by statute, regulation, agreement, or otherwise) to be exceeded or contravened; or
(4) violate any provision of the Certificate of Incorporation or By-laws of the Borrower;
(vii) the Borrower has, or will by the date of the Drawdown have, received or obtained every authorization, consent and approval of, or exemption by, any governmental or public body or authority required to authorize, or required in any breach connection with the execution, delivery and performance of this Agreement or the taking of any contractual covenants action hereby or investment management thereby contemplated, and every such authorization, consent and approval, or execution is in full force and effect;
(viii) the Borrower is not and would not with the giving of notice or lapse of time or both be in material default under any agreement to which each of the Sellers it is subject;
5.4.10 each of the Sellers is not a “connected fund manager” (as defined in the Takeovers Code) or a “connected principal trader” (as defined in the Takeovers Code) of the offeror (i.e. Unicom) or the offeree company (i.e. the Company) nor a party acting in concert with the offeror and that consent from the Executive Director of the Corporate Finance Division of the Securities & Futures Commission is not required for the sale of the Sale Shares;
5.4.11 each of the Sellers is not required to obtain any other person’s consent in relation to the sale of the Sale Shares, the New Unicom Shares and the New Unicom ADSs;
5.4.12 each of the Sellers is not a connected person (as such term is defined in the Rules Governing the Listing of Securities on The Hong Kong Stock Exchange Limited) of the Company or Unicom;
5.4.13 no petition has been presented subject or order made and no meeting convened or resolution passed for the winding up or administration of any of the Sellers or for a provisional liquidator to by which it may be appointed in respect of any of the Sellers;
5.4.14 no distress, execution or other process has been levied on any of the assets of any of the Sellersbound, and no judgment creditor nor action, suit, arbitration proceeding, litigation or administrative proceeding before any liquidatorcourt, provisional liquidatorboard of arbitration or administrative body is presently in course or pending, receiver or an administrative receiver of any threatened, which default, litigation or proceeding would have a material adverse effect on the business, assets or financial condition of the Sellers has been appointed and there is no reason Borrower, or which would adversely affect its ability to believe that such a person might be appointedperform its obligations under this Agreement;
5.4.15 no voluntary arrangement has been proposed in respect of any of the Sellers and their creditors; and
5.4.16 each of the Sellers (ix) it is not insolvent, or unable to pay its debts, and has not stopped paying its debts as they fall due, and no event analogous to any of the foregoing has occurred in or outside Hong Kong.
5.5 The Buyer represents and warrants to the Sellers that each Buyer Warranty is true, accurate and not misleading at the date of this Agreement. Immediately before Closing, the Buyer is deemed to warrant to the Sellers that each Buyer Warranty is true, accurate and not misleading by reference to the facts and circumstances on each day before Closing, and for this purpose only, any references in the Buyer Warranties to the date of this Agreement shall be construed as references to the relevant date. Unless otherwise set out in this Agreement, no other warranty is given by the Buyer.
5.6 The Buyer acknowledges that each of the Sellers is entering into this Agreement in reliance on each Buyer Warranty which has also been given as a representation and with the intention of inducing the Sellers to enter into this Agreement. The Buyer shall not invoke the Sellers’ constructive or imputed knowledge of a fact or circumstance which might make a Buyer Warranty untrue, inaccurate or misleading as a defence to a claim for breach of Clause 5.5.
5.7 The Buyer represents and warrants to the Sellers that:
5.7.1 the Buyer is a corporation duly organized and validly existing necessary under the laws of its country Japan, the United States of origin;
5.7.2 America or any political subdivision or authority thereof or therein in order to ensure the Buyer has the legal rightvalidity, full power effectiveness and authority, and has taken enforceability of this Agreement as against all action necessary, to execute, deliver persons and to exercise its rightsmake the same enforceable and admissible in evidence in the courts of competent jurisdiction in Japan, and perform its obligationsthe United States of America or any political sub-division or authority thereof or therein, under that this Agreement and or any other documents instrument relating thereto be filed, registered or recorded in any public office or elsewhere in any manner; and
(x) the Borrower has not incurred any obligation for payment to be executed any Affiliate, including Jusco, except for obligations which by their terms are subordinated to any and all claims by the Buyer pursuant Bank for amounts owing from the Borrower to or in connection with this the Bank under the Agreement, which when executed will constitute valid and binding obligations on the Buyer;
5.7.3 the execution and delivery of, and the performance by the Buyer of its obligations under, this Agreement and any other documents to be executed by it pursuant to or in connection with this Agreement will not:
(a) result in a breach of any provision of the constitutional or organisational documents of the Buyer; or.
(b) result Fresh representations and warranties shall be deemed to have been made by the Borrower in a breach the terms of or give any third party a right paragraph (a) of this Section as of each Drawdown Date and also representations and warranties shall be deemed to terminate or modifyhave been made as of such date (i) that no event constituting, or result which with the giving of notice or the passing of time or both would constitute, an Event of Default has occurred, and (ii) that no material adverse change in the creation of any Encumbrance underassets, any agreement, licence liabilities or other instrument or result in a breach of any order, judgment or decree of any court, governmental agency or regulatory body to which the Buyer or its nominee is a party or by which any financial condition of the Buyer Borrower or its nominee or any of their respective assets is bound;
5.7.4 in the Buyer is not required to obtain any other person’s consent in relation to the acquisition operations of the Sale Shares;
5.7.5 no petition has been presented or order made and no meeting convened or resolution passed for the winding up or administration of the Buyer or for a provisional liquidator to be appointed in respect of the Buyer;
5.7.6 no distress, execution or other process has been levied on any of the assets of the Buyer, and no judgment creditor nor any liquidator, provisional liquidator, receiver or an administrative receiver of the Buyer has been appointed and there is no reason to believe that such a person might be appointed;
5.7.7 no voluntary arrangement has been proposed in respect of the Buyer and its creditors; and
5.7.8 the Buyer is not insolvent, or unable to pay its debts, and has not stopped paying its debts as they fall due, and no event analogous to any of the foregoing Borrower has occurred in or outside Hong Kong.
5.8 Each of the Sellers undertakes to the Buyer that it shall not dispose of or enter into any agreement or arrangement to dispose of or permit the disposal of any of the Sale Shares, the disposal of which is subject to its discretion from since the date of this Agreement and until the Long Stop Date or the date when this Agreement is terminated in accordance with Clause 3.3, whichever is earliersuch accounts.
5.9 Each of the Sellers further undertakes to the Buyer that it shall exercise or procure to be exercised all the voting rights attaching to the Sale Listed Shares in favour of the resolution approving the Scheme and the Share Proposal at the shareholders’ meeting of the Company to be held on 17 September 2008, and any adjournment thereof.
Appears in 1 contract
REPRESENTATIONS, WARRANTIES AND UNDERTAKINGS. 5.1 Each of the Sellers 6.1 The Vendor represents and warrants to the Buyer Purchaser that each Seller Warranty is true, accurate and not misleading at the date of this Agreement. Immediately before Closing, each of the Sellers is deemed to warrant to the Buyer that each Seller Warranty is true, accurate and not misleading by reference to the facts and circumstances on each day before Closing, and for this purpose only any references in the Seller Warranties to the date of this Agreement shall be construed as references to the relevant date. Unless otherwise set out in this Agreement, no other warranty is given by the Sellers.
5.2 Each of the Sellers acknowledges that the Buyer is entering into this Agreement in reliance on each Seller Warranty which has also been given as a representation and with the intention of inducing the Buyer to enter into this Agreement. The Sellers shall not invoke the Buyer’s constructive or imputed knowledge of a fact or circumstance which might make a Seller Warranty untrue, inaccurate or misleading as a defence to a claim for breach of Clause 5.1.
5.3 Each Seller Warranty is to be construed independently and (except where this Agreement provides otherwise) is not limited by a provision of this Agreement or another Warranty.
5.4 Each of the Sellers represents and warrants to the Buyer that:
5.4.1 each of the Sellers is an entity duly organized and validly existing under the laws of its country of origin;
5.4.2 each of the Sellers it has the legal right, full power power, legal capacity and authority, and has taken obtained all action necessarynecessary approvals, to execute, deliver and to exercise its rights, and perform its obligations, under enter into this Agreement and any other documents to be executed by each of the Sellers pursuant to or in connection with this Agreement, which when executed will constitute valid and binding obligations on each Seller and its asset management clients for whose account the Sale Shares are managed and who are the beneficial owners;
5.4.3 the Sale Shares are beneficially owned by the Sellers’ asset management clients in managed accounts over which the Sellers have investment discretion. To the best of the Sellers’ knowledge, there is no other person who has any legal or beneficial interest in the Sale Shares;
5.4.4 each of the Sellers is validly appointed as discretionary investment manager by the beneficial owners in respect of the Sale Shares;
5.4.5 the Sale Shares are beneficially owned by the Sellers’ asset management clients; to the best of the Sellers’ knowledge, the beneficial owners of the Sale Shares have the full legal right to sell the Sale Shares and which are free from any Encumbrances;
5.4.6 upon completion of the Scheme, the Sellers’ asset management clients will be the sole beneficial owners of the New Unicom Shares and the New Unicom ADSs;
5.4.7 each of the Sellers has not created or permitted the creation of any Encumbrance nor entered into any agreement, arrangement or obligation to create or give an Encumbrance, in relation to any of the Sale Shares, the New Unicom Shares and/or the New Unicom ADSs, and to the best of the Sellers’ knowledge, no person has claimed to be entitled to an Encumbrance in relation to any of the Sale Shares, the New Unicom Shares and/or the New Unicom ADSs;
5.4.8 to the extent it held proxy voting authority, each of the Sellers has tendered votes in respect of the Shares underlying the Sale Netcom ADSs in favour of the resolution approving the scheme of arrangement under section 166 of the Companies Ordinance (Cap 32 of the Laws of Hong Kong) between the Company and the shareholders of the Company at the extraordinary general meeting of the Company to be held on 17 September 2008, and any adjournment thereof;
5.4.9 the execution and delivery of, and the performance by each of the Sellers of its obligations under, this Agreement and any other documents to be executed by it such pursuant to or in connection with this Agreement will not:
(a) result in a breach of any provision of the constitutional or organisational documents of each of the Sellers;
(b) result in a breach of or give any third party a right to terminate or modify, or result in the creation of any Encumbrance under, any agreement, licence or other instrument or result in a breach of any order, judgment or decree of any court, governmental agency or regulatory body to which each of the Sellers or its nominee is a party or by which any of the Sellers or its nominee or any of their respective assets is bound; or
(c) result in any breach of any contractual covenants or investment management agreement to which each of the Sellers is subject;
5.4.10 each of the Sellers is not a “connected fund manager” (as defined in the Takeovers Code) or a “connected principal trader” (as defined in the Takeovers Code) of the offeror (i.e. Unicom) or the offeree company (i.e. the Company) nor a party acting in concert with the offeror and that consent from the Executive Director of the Corporate Finance Division of the Securities & Futures Commission is not required for the sale of the Sale Shares;
5.4.11 each of the Sellers is not required to obtain any other person’s consent in relation to the sale of the Sale Shares, the New Unicom Shares and the New Unicom ADSs;
5.4.12 each of the Sellers is not a connected person (as such term is defined in the Rules Governing the Listing of Securities on The Hong Kong Stock Exchange Limited) of the Company or Unicom;
5.4.13 no petition has been presented or order made and no meeting convened or resolution passed for the winding up or administration of any of the Sellers or for a provisional liquidator to be appointed in respect of any of the Sellers;
5.4.14 no distress, execution or other process has been levied on any of the assets of any of the Sellers, and no judgment creditor nor any liquidator, provisional liquidator, receiver or an administrative receiver of any of the Sellers has been appointed and there is no reason to believe that such a person might be appointed;
5.4.15 no voluntary arrangement has been proposed in respect of any of the Sellers and their creditors; and
5.4.16 each of the Sellers is not insolvent, or unable to pay its debts, and has not stopped paying its debts as they fall due, and no event analogous to any of the foregoing has occurred in or outside Hong Kong.
5.5 The Buyer represents and warrants to the Sellers that each Buyer Warranty is true, accurate and not misleading at the date of this Agreement. Immediately before Closing, the Buyer is deemed to warrant to the Sellers that each Buyer Warranty is true, accurate and not misleading by reference to the facts and circumstances on each day before Closing, and for this purpose only, any references in the Buyer Warranties to the date of this Agreement shall be construed as references to the relevant date. Unless otherwise set out in this Agreement, no other warranty is given by the Buyer.
5.6 The Buyer acknowledges that each of the Sellers is entering into this Agreement in reliance on each Buyer Warranty which has also been given as a representation and with the intention of inducing the Sellers to enter into this Agreement. The Buyer shall not invoke the Sellers’ constructive or imputed knowledge of a fact or circumstance which might make a Buyer Warranty untrue, inaccurate or misleading as a defence to a claim for breach of Clause 5.5.
5.7 The Buyer represents and warrants to the Sellers that:
5.7.1 the Buyer is a corporation duly organized and validly existing under the laws of its country of origin;
5.7.2 the Buyer has the legal right, full power and authority, and has taken all action necessary, to execute, deliver and to exercise its rights, rights and perform its obligationsobligations hereunder, under and this Agreement and any other the said documents to be executed by the Buyer pursuant to or in connection with this Agreementwhen signed shall constitute legal, which when executed will constitute valid and binding obligations on the Buyer;Vendor and enforceable in accordance with their terms.
5.7.3 6.2 The Vendor represents and warrants to the execution Purchaser that upon Completion, the Sale Shares sold by the Vendor shall be fully paid up and delivery ofare legally and beneficially owned by it, and it has the performance power, authority, legal capacity and has obtained authorisation to sell and transfer the Sale Shares to be sold by it, and that the Buyer Sale Shares to be sold by it shall be free of its obligations underall Encumbrances with all rights attached thereto on the Completion Date.
6.3 If, after the signing of this Agreement and before Completion, any event shall occur or matter shall arise which results or may result in any of the Warranties of the Vendor being untrue, misleading or inaccurate in any respect, the Vendor shall immediately notify the Purchaser in writing thereof prior to Completion.
6.4 The total aggregate liability of the Vendor for any claim or claims of breaches under this Agreement (excluding other documents legal and other costs and expenses) shall not in any event exceed an amount equals to the Total Consideration.
6.5 No claim may be executed brought against the Vendor in respect of a breach of any of the Warranties after expiration of a period of 24 months from the Completion Date (“Warranty Expiry Date”) and the Vendor shall not be liable in respect of a breach of any of the Warranties unless it shall have received written notice from the Purchaser prior to the Warranty Expiry Date giving reasonable details of the relevant claim and any such claim shall (if not previously satisfied, settled or withdrawn) be deemed to have been waived or withdrawn at the expiry of a period of six months after the Warranty Expiry Date unless proceedings in respect thereof shall have already been commenced against the Vendor.
6.6 The Purchaser’s rights in respect of each of the Warranties shall survive Completion and continue in full force and effect notwithstanding Completion.
6.7 The Purchaser shall be entitled to claim both before and after Completion that any of the Warranties is or was untrue or misleading or has or had been breached even if the Purchaser discovered or could have discovered on or before Completion that the Warranty in question was untrue, misleading or had been breached and Completion shall not in any way constitute a waiver of any of the Purchaser’s rights.
6.8 The Purchaser hereby acknowledges that the Vendor has relied upon a valuation report dated 31 December 2022 (the “Valuation Report”) for determining the Base Purchase Price and which valuation report contains assumptions and other information supplied by the Vendor. The Vendor hereby warrants that all the assumptions in the valuation report and all other matters supplied by it pursuant for the purpose of compiling the valuation report will remain true and valid for a period of 24 months after Completion.
6.9 The Vendor hereby undertakes to indemnify and keep indemnified the Purchaser from and against all reasonable claims, liabilities, losses, damages, costs and expenses which the Purchaser may suffer or incur or which may be made against the Vendor either before or after the commencement of and arising out of, or in respect of, any action in connection with this Agreement will notwith:
(a) result in a the breach of any of the Warranties or any provision of this Agreement by the constitutional or organisational documents of the Buyer; orVendor;
(b) result in a breach of or give any third party a right to terminate or modify, or result in the creation settlement of any Encumbrance under, any agreement, licence or other instrument or result in a breach of any order, judgment or decree of any court, governmental agency or regulatory body to which the Buyer or its nominee is a party or by which claim that any of the Buyer Warranties is untrue or its nominee misleading or has been breached in any aspects;
(c) any legal proceedings taken by the Purchaser claiming that any of their respective assets the Warranties is bound;untrue or misleading or has been breached and in which judgment is given for the Purchaser; and
5.7.4 (d) the Buyer is not required to obtain enforcement of any other person’s consent such settlement or judgment.
6.10 No claim shall lie against the Vendor (under or in relation to the acquisition Warranties or any provision of this Agreement) to the Sale Shares;
5.7.5 no petition has been presented or order made and no meeting convened or resolution passed for the winding up or administration of the Buyer or for a provisional liquidator to be appointed in respect of the Buyer;
5.7.6 no distress, execution or other process has been levied on any of the assets of the Buyer, and no judgment creditor nor any liquidator, provisional liquidator, receiver or an administrative receiver of the Buyer has been appointed and there is no reason to believe extent that such a person might be appointed;claim is attributable to any voluntary act, omission, transaction, or arrangement carried out directly by the Purchaser or on its behalf or by persons deriving title from the Purchaser after the Completion.
5.7.7 no voluntary arrangement has been proposed 6.11 The Vendor represents and warrants that, in respect of the Buyer and its creditors; and
5.7.8 the Buyer entering into this Agreement it is not insolvent, in breach or unable to pay its debtsviolation of, and has not stopped paying its debts as they fall dueengaged in any acts, and no event analogous to any of the foregoing has occurred in omissions or outside Hong Kong.
5.8 Each of the Sellers undertakes to the Buyer that conduct which may cause it shall not dispose of or enter into any agreement or arrangement to dispose of or permit the disposal of any of the Sale Shares, the disposal of which is subject to its discretion from the date of this Agreement and until the Long Stop Date or the date when this Agreement is terminated in accordance with Clause 3.3, whichever is earlier.
5.9 Each of the Sellers further undertakes to the Buyer that it shall exercise or procure Purchaser to be exercised all the voting rights attaching to the Sale Listed Shares in favour of the resolution approving the Scheme and the Share Proposal at the shareholders’ meeting of the Company to be held on 17 September 2008breach or violation of, and any adjournment thereofApplicable Laws.
Appears in 1 contract
Samples: Sale and Purchase Agreement (China Natural Resources Inc)
REPRESENTATIONS, WARRANTIES AND UNDERTAKINGS. 5.1 Each of the Sellers The Vendor represents and warrants to the Buyer Purchaser that the Recitals of this Agreement and each Seller Warranty of the Warranties set out in Schedule 2 is as at the date of this Agreement and will be for all times up to and including the date of Completion, remain true, accurate and not misleading in any respect.
5.2 The Warranties shall be deemed to be repeated as at Completion as if all references herein to the date of this Agreement. Immediately before Closing, each of the Sellers is deemed to warrant to the Buyer that each Seller Warranty is true, accurate and not misleading by reference to the facts and circumstances on each day before Closing, and for this purpose only any hereof were references in the Seller Warranties to the date of this Agreement shall be construed as references to the relevant date. Unless otherwise set out in this Agreement, no other warranty is given by the SellersCompletion.
5.2 Each of the Sellers 5.3 The Vendor acknowledges that the Buyer is entering Purchaser has entered into this Agreement in reliance on each Seller Warranty upon the Warranties, notwithstanding any information regarding the Group which has also been given as a representation and with may otherwise have come into the intention possession of inducing the Buyer to enter into this Agreement. The Sellers shall not invoke Purchaser or of which the Buyer’s Purchaser might have known or had constructive or imputed knowledge of a fact or circumstance which might make a Seller Warranty untrue, inaccurate or misleading as a defence to a claim for breach of Clause 5.1.
5.3 Each Seller Warranty is to be construed independently and (except where this Agreement provides otherwise) is not limited by a provision of this Agreement or another Warrantyknowledge.
5.4 Each The liabilities of the Sellers represents and warrants to the Buyer that:
5.4.1 each of the Sellers is an entity duly organized and validly existing under the laws of its country of origin;
5.4.2 each of the Sellers has the legal right, full power and authority, and has taken all action necessary, to execute, deliver and to exercise its rights, and perform its obligations, under this Agreement and any other documents to be executed by each of the Sellers pursuant to or in connection with this Agreement, which when executed will constitute valid and binding obligations on each Seller and its asset management clients for whose account the Sale Shares are managed and who are the beneficial owners;
5.4.3 the Sale Shares are beneficially owned by the Sellers’ asset management clients in managed accounts over which the Sellers have investment discretion. To the best of the Sellers’ knowledge, there is no other person who has any legal or beneficial interest in the Sale Shares;
5.4.4 each of the Sellers is validly appointed as discretionary investment manager by the beneficial owners in respect of the Sale Shares;
5.4.5 the Sale Shares are beneficially owned by the Sellers’ asset management clients; to the best of the Sellers’ knowledge, the beneficial owners of the Sale Shares have the full legal right to sell the Sale Shares and which are free from any Encumbrances;
5.4.6 upon completion of the Scheme, the Sellers’ asset management clients will be the sole beneficial owners of the New Unicom Shares and the New Unicom ADSs;
5.4.7 each of the Sellers has not created or permitted the creation of any Encumbrance nor entered into any agreement, arrangement or obligation to create or give an Encumbrance, in relation to any of the Sale Shares, the New Unicom Shares and/or the New Unicom ADSs, and to the best of the Sellers’ knowledge, no person has claimed to be entitled to an Encumbrance in relation to any of the Sale Shares, the New Unicom Shares and/or the New Unicom ADSs;
5.4.8 to the extent it held proxy voting authority, each of the Sellers has tendered votes in respect of the Shares underlying the Sale Netcom ADSs in favour of the resolution approving the scheme of arrangement under section 166 of the Companies Ordinance (Cap 32 of the Laws of Hong Kong) between the Company and the shareholders of the Company at the extraordinary general meeting of the Company to be held on 17 September 2008, and any adjournment thereof;
5.4.9 the execution and delivery of, and the performance by each of the Sellers of its obligations under, this Agreement and any other documents to be executed by it pursuant to or in connection with this Agreement will not:
(a) result in a breach of any provision of the constitutional or organisational documents of each of the Sellers;
(b) result in a breach of or give any third party a right to terminate or modify, or result in the creation of any Encumbrance under, any agreement, licence or other instrument or result in a breach of any order, judgment or decree of any court, governmental agency or regulatory body to which each of the Sellers or its nominee is a party or by which any of the Sellers or its nominee or any of their respective assets is bound; or
(c) result in any breach of any contractual covenants or investment management agreement to which each of the Sellers is subject;
5.4.10 each of the Sellers is not a “connected fund manager” (as defined in the Takeovers Code) or a “connected principal trader” (as defined in the Takeovers Code) of the offeror (i.e. Unicom) or the offeree company (i.e. the Company) nor a party acting in concert with the offeror and that consent from the Executive Director of the Corporate Finance Division of the Securities & Futures Commission is not required for the sale of the Sale Shares;
5.4.11 each of the Sellers is not required to obtain any other person’s consent Vendor in relation to the sale Warranties shall not be diminished or affected for reason of the Sale Shares, Purchaser having conducted due diligence on the New Unicom Shares and the New Unicom ADSs;
5.4.12 each of the Sellers is not a connected person (as such term is defined in the Rules Governing the Listing of Securities on The Hong Kong Stock Exchange Limited) of the Company or Unicom;
5.4.13 no petition has been presented or order made and no meeting convened or resolution passed for the winding up or administration of any of the Sellers or for a provisional liquidator to be appointed in respect of any of the Sellers;
5.4.14 no distress, execution or other process has been levied on any of the assets of any of the Sellers, and no judgment creditor nor any liquidator, provisional liquidator, receiver or an administrative receiver of any of the Sellers has been appointed and there is no reason to believe that such a person might be appointed;
5.4.15 no voluntary arrangement has been proposed in respect of any of the Sellers and their creditors; and
5.4.16 each of the Sellers is not insolvent, or unable to pay its debts, and has not stopped paying its debts as they fall due, and no event analogous to any of the foregoing has occurred in or outside Hong KongGroup.
5.5 The Buyer represents Each of the Warranties shall be separate and warrants independent and, except as expressly provided to the Sellers that each Buyer contrary, shall not be limited by reference to or inference from any other Warranty is true, accurate and not misleading at the date or any other term of this Agreement. Immediately before Closing, the Buyer is deemed to warrant to the Sellers that each Buyer Warranty is true, accurate and not misleading by reference to the facts and circumstances on each day before Closing, and for this purpose only, any references in the Buyer Warranties to the date of this Agreement shall be construed as references to the relevant date. Unless otherwise set out in this Agreement, no other warranty is given by the Buyer.
5.6 The Buyer acknowledges that each rights, including rights of rescission, conferred on the Sellers is entering into Purchaser by this Agreement are in reliance on each Buyer Warranty which has also been given as addition and without prejudice to all other rights and remedies available to the Purchaser and no exercise or failure to exercise a representation and with right under this Agreement or otherwise or to invoke a remedy shall constitute a waiver of that right or remedy by the intention of inducing the Sellers to enter into this Agreement. The Buyer shall not invoke the Sellers’ constructive or imputed knowledge of a fact or circumstance which might make a Buyer Warranty untrue, inaccurate or misleading as a defence to a claim for breach of Clause 5.5Purchaser.
5.7 The Buyer represents and warrants Vendor shall promptly disclose to the Sellers that:
5.7.1 the Buyer is a corporation duly organized and validly existing under the laws of its country of origin;
5.7.2 the Buyer has the legal right, full power and authority, and has taken all action necessary, to execute, deliver and to exercise its rights, and perform its obligations, under this Agreement and any other documents to be executed by the Buyer pursuant to or Purchaser in connection with this Agreement, which when executed will constitute valid and binding obligations on the Buyer;
5.7.3 the execution and delivery writing after it becomes aware of, and the performance by the Buyer of its obligations underany matter, this Agreement and any other documents to be executed by it pursuant to event or in connection with this Agreement will not:
(a) result in a breach of any provision of the constitutional circumstance which may arise or organisational documents of the Buyer; or
(b) result in a breach of or give any third party a right to terminate or modify, or result in the creation of any Encumbrance under, any agreement, licence or other instrument or result in a breach of any order, judgment or decree of any court, governmental agency or regulatory body to which the Buyer or its nominee is a party or by which any of the Buyer or its nominee or any of their respective assets is bound;
5.7.4 the Buyer is not required to obtain any other person’s consent in relation become known to the acquisition of the Sale Shares;
5.7.5 no petition has been presented or order made and no meeting convened or resolution passed for the winding up or administration of the Buyer or for a provisional liquidator to be appointed in respect of the Buyer;
5.7.6 no distress, execution or other process has been levied on any of the assets of the Buyer, and no judgment creditor nor any liquidator, provisional liquidator, receiver or an administrative receiver of the Buyer has been appointed and there is no reason to believe that such a person might be appointed;
5.7.7 no voluntary arrangement has been proposed in respect of the Buyer and its creditors; and
5.7.8 the Buyer is not insolvent, or unable to pay its debts, and has not stopped paying its debts as they fall due, and no event analogous to any of the foregoing has occurred in or outside Hong Kong.
5.8 Each of the Sellers undertakes to the Buyer that it shall not dispose of or enter into any agreement or arrangement to dispose of or permit the disposal of any of the Sale Shares, the disposal of which is subject to its discretion from Vendor after the date of this Agreement and until before Completion, which is inconsistent with any of the Long Stop Date Warranties or may render any of them misleading; has caused or may cause any material adverse effect on the date when business, operations, prospects or financial condition of the Group; or affect the ability of the Vendor to perform or observe any of its obligations, undertakings or covenants under this Agreement is terminated Agreement.
5.8 The Vendor shall not and shall procure each member of the Group not to do, permit or procure any act or omission before the Completion which will cause the Vendor to be in accordance with Clause 3.3breach of any of the Warranties, whichever is earlieror which would make any of the Warranties untrue, inaccurate or misleading in any respect.
5.9 Each The Vendor undertakes to indemnify and keep indemnified the Purchaser from and against any payment made or required to be made by any member of the Sellers further undertakes to Group or the Buyer that it shall exercise Purchaser as a result of or procure to be exercised all the voting rights attaching to the Sale Listed Shares in favour connection with any breach of any of the resolution approving Warranties and undertakings given herein and all claims, liabilities, losses, costs and expenses which the Scheme Purchaser may suffer or incur or which may be made against the Purchaser either before or after the commencement of and arising out of, or in respect of, any action in connection with:
(a) the Share Proposal at the shareholders’ meeting settlement of any claim that any of the Company Warranties is untrue or misleading or any of the Warranties has been breached in any material aspects;
(b) any legal proceedings taken by the Purchaser claiming that any of the Warranties is untrue or misleading or any of the Warranties has been breached and in which judgment is given for the Purchaser; and
(c) the enforcement of any such settlement or judgment.
5.10 The Purchaser’s rights in respect of each of the Warranties (including but not limited to be held on 17 September 2008, right under Clause 5.9) shall survive Completion and any adjournment thereofcontinue in full force and effect notwithstanding Completion.
Appears in 1 contract
REPRESENTATIONS, WARRANTIES AND UNDERTAKINGS. 5.1 Each of the Sellers parties hereto hereby severally represents and warrants to the Buyer other parties that each Seller Warranty is true, accurate it has full power and not misleading at the date of authority to enter into and perform this Agreement. Immediately before Closing; this Agreement when executed and delivered by them shall constitute valid and legally binding obligations of such party enforceable in accordance with their respective terms, each except (i) as limited by applicable bankruptcy, insolvency, reorganization, moratorium, and other laws of the Sellers is deemed to warrant general application affecting enforcement of creditors’ rights generally, and (ii) as limited by laws relating to the Buyer that each Seller Warranty is trueavailability of specific performance, accurate and not misleading by reference to the facts and circumstances on each day before Closinginjunctive relief, and for this purpose only any references in the Seller Warranties to the date of this Agreement shall be construed as references to the relevant date. Unless otherwise set out in this Agreement, no or other warranty is given by the Sellersequitable remedies.
5.2 Each of the Sellers Parties hereto hereby undertakes to perform and procure the performance of this Agreement.
5.3 The Subscribers hereby undertakes and acknowledges to the Company that following the Buyer is entering into date of this Agreement (unless otherwise specified) they shall use its reasonable endeavours to assist the Company to, as soon as practicable, effect all approval and registration procedures related to the transaction and matters contemplated under this Agreement, obtain all the consent required for this Agreement and carry out all reasonable measures and actions necessary for the transaction to be successfully completed and valid according to the Transaction Documents and applicable laws in the PRC.
5.4 The Subscribers hereby represent and warrant to the Warrantors that its investment decisions were made based on its own due diligence investigation and its own business judgement, and it shall be fully responsible for all its actions thereof, subject to reliance on each Seller Warranty which has also been given the representations, warranties, covenants and agreements of the Warrantors contained in this Agreement.
5.5 Except as a representation set forth in the Schedule of Exceptions, the Warrantors hereby jointly and severally represent and warrant to and undertakes with the intention Subscribers that each of inducing the Buyer matters set out in Schedule 4 is as at the date hereof and will be for all times up to enter into this Agreement. The Sellers shall not invoke and including the Buyer’s constructive or imputed knowledge Completion Date, true, correct and complete in all material respects.
5.6 Each of a fact or circumstance which might make a Seller Warranty untruethe Warranties refers only to matters and facts subsisting as at the date hereof up to and including the Completion Date, inaccurate or misleading as a defence and the right to a claim for breach of Clause 5.1any Warranties will survive for a period of two (2) years after the Completion.
5.3 5.7 Each Seller of the Warranties is without prejudice to any other Warranty is to be construed independently and (and, except where expressly stated otherwise, no provision contained in this Agreement provides otherwise) is not limited by a provision shall govern or limit the extent or application of this Agreement or another any other Warranty.
5.4 5.8 Each of the Sellers represents and warrants Warrantors undertakes to notify the Subscribers, in writing as soon as practicable of any matter or event which becomes known to it prior to the Buyer that:Completion which may render any Warranty to be or to have been untrue or inaccurate.
5.4.1 each 5.9 The rights and remedies of the Sellers is an entity duly organized and validly existing under the laws Subscribers, in respect of its country a material breach of origin;
5.4.2 each any Warranty shall not be affected by any due diligence review or investigation made by or on behalf of the Sellers has Subscribers into the legal rightaffairs of any Group Company.
5.10 Notwithstanding any rule of law or equity to the contrary, full power and authorityany release, and has taken all action necessary, to execute, deliver and to exercise its rights, and perform its obligations, under this Agreement and waiver or compromise or any other documents arrangement of any kind whatsoever which the Subscribers may agree to be executed by each or effect in relation to any of the Sellers pursuant to or Warrantors in connection with this Agreement, which when executed will constitute valid and binding obligations on each Seller in particular the Warranties, shall not affect the rights and its asset management clients for whose account the Sale Shares are managed and who are the beneficial owners;
5.4.3 the Sale Shares are beneficially owned by the Sellers’ asset management clients in managed accounts over which the Sellers have investment discretion. To the best remedies of the Sellers’ knowledgeSubscribers, there is no as regards to any other person who has any legal or beneficial interest in the Sale Shares;parties.
5.4.4 each 5.11 Each of the Sellers is validly appointed as discretionary investment manager by the beneficial owners in respect of the Sale Shares;
5.4.5 the Sale Shares are beneficially owned by the Sellers’ asset management clients; to the best of the Sellers’ knowledge, the beneficial owners of the Sale Shares have the full legal right to sell the Sale Shares and which are free from any Encumbrances;
5.4.6 upon completion of the Scheme, the Sellers’ asset management clients will be the sole beneficial owners of the New Unicom Shares and the New Unicom ADSs;
5.4.7 each of the Sellers has not created or permitted the creation of any Encumbrance nor entered into any agreement, arrangement or obligation to create or give an EncumbranceWarrantors undertakes, in relation to any Warranty which refers to his knowledge or information, that he has made best enquiry into the subject matter of the Sale Shares, the New Unicom Shares and/or the New Unicom ADSs, and to the best of the Sellers’ knowledge, no person has claimed to be entitled to an Encumbrance in relation to any of the Sale Shares, the New Unicom Shares and/or the New Unicom ADSs;
5.4.8 to the extent it held proxy voting authority, each of the Sellers has tendered votes in respect of the Shares underlying the Sale Netcom ADSs in favour of the resolution approving the scheme of arrangement under section 166 of the Companies Ordinance (Cap 32 of the Laws of Hong Kong) between the Company and the shareholders of the Company at the extraordinary general meeting of the Company to be held on 17 September 2008, and any adjournment thereof;
5.4.9 the execution and delivery of, and the performance by each of the Sellers of its obligations under, this Agreement and any other documents to be executed by it pursuant to or in connection with this Agreement will not:
(a) result in a breach of any provision of the constitutional or organisational documents of each of the Sellers;
(b) result in a breach of or give any third party a right to terminate or modify, or result in the creation of any Encumbrance under, any agreement, licence or other instrument or result in a breach of any order, judgment or decree of any court, governmental agency or regulatory body to which each of the Sellers or its nominee is a party or by which any of the Sellers or its nominee or any of their respective assets is bound; or
(c) result in any breach of any contractual covenants or investment management agreement to which each of the Sellers is subject;
5.4.10 each of the Sellers is not a “connected fund manager” (as defined in the Takeovers Code) or a “connected principal trader” (as defined in the Takeovers Code) of the offeror (i.e. Unicom) or the offeree company (i.e. the Company) nor a party acting in concert with the offeror that Warranty and that consent from he does not have the Executive Director knowledge or information or belief that the subject matter of the Corporate Finance Division of the Securities & Futures Commission is that Warranty may not required for the sale of the Sale Shares;
5.4.11 each of the Sellers is not required to obtain any other person’s consent in relation to the sale of the Sale Shares, the New Unicom Shares and the New Unicom ADSs;
5.4.12 each of the Sellers is not a connected person (as such term is defined in the Rules Governing the Listing of Securities on The Hong Kong Stock Exchange Limited) of the Company or Unicom;
5.4.13 no petition has been presented or order made and no meeting convened or resolution passed for the winding up or administration of any of the Sellers or for a provisional liquidator to be appointed in respect of any of the Sellers;
5.4.14 no distress, execution or other process has been levied on any of the assets of any of the Sellers, and no judgment creditor nor any liquidator, provisional liquidator, receiver or an administrative receiver of any of the Sellers has been appointed and there is no reason to believe that such a person might be appointed;
5.4.15 no voluntary arrangement has been proposed in respect of any of the Sellers and their creditors; and
5.4.16 each of the Sellers is not insolvent, or unable to pay its debts, and has not stopped paying its debts as they fall due, and no event analogous to any of the foregoing has occurred in or outside Hong Kong.
5.5 The Buyer represents and warrants to the Sellers that each Buyer Warranty is true, accurate and not misleading at the date of this Agreement. Immediately before Closing, the Buyer is deemed to warrant to the Sellers that each Buyer Warranty is true, accurate and not misleading by reference to the facts and circumstances on each day before Closing, and for this purpose only, any references in the Buyer Warranties to the date of this Agreement shall be construed as references to the relevant date. Unless otherwise set out in this Agreement, no other warranty is given by the Buyercomplete or accurate.
5.6 The Buyer acknowledges that each of the Sellers is entering into this Agreement in reliance on each Buyer Warranty which has also been given as a representation and with the intention of inducing the Sellers to enter into this Agreement. The Buyer shall not invoke the Sellers’ constructive or imputed knowledge of a fact or circumstance which might make a Buyer Warranty untrue, inaccurate or misleading as a defence to a claim for breach of Clause 5.5.
5.7 The Buyer represents and warrants to the Sellers that:
5.7.1 the Buyer is a corporation duly organized and validly existing under the laws of its country of origin;
5.7.2 the Buyer has the legal right, full power and authority, and has taken all action necessary, to execute, deliver and to exercise its rights, and perform its obligations, under this Agreement and any other documents to be executed by the Buyer pursuant to or in connection with this Agreement, which when executed will constitute valid and binding obligations on the Buyer;
5.7.3 the execution and delivery of, and the performance by the Buyer of its obligations under, this Agreement and any other documents to be executed by it pursuant to or in connection with this Agreement will not:
(a) result in a breach of any provision of the constitutional or organisational documents of the Buyer; or
(b) result in a breach of or give any third party a right to terminate or modify, or result in the creation of any Encumbrance under, any agreement, licence or other instrument or result in a breach of any order, judgment or decree of any court, governmental agency or regulatory body to which the Buyer or its nominee is a party or by which any of the Buyer or its nominee or any of their respective assets is bound;
5.7.4 the Buyer is not required to obtain any other person’s consent in relation to the acquisition of the Sale Shares;
5.7.5 no petition has been presented or order made and no meeting convened or resolution passed for the winding up or administration of the Buyer or for a provisional liquidator to be appointed in respect of the Buyer;
5.7.6 no distress, execution or other process has been levied on any of the assets of the Buyer, and no judgment creditor nor any liquidator, provisional liquidator, receiver or an administrative receiver of the Buyer has been appointed and there is no reason to believe that such a person might be appointed;
5.7.7 no voluntary arrangement has been proposed in respect of the Buyer and its creditors; and
5.7.8 the Buyer is not insolvent, or unable to pay its debts, and has not stopped paying its debts as they fall due, and no event analogous to any of the foregoing has occurred in or outside Hong Kong.
5.8 Each of the Sellers undertakes to the Buyer that it shall not dispose of or enter into any agreement or arrangement to dispose of or permit the disposal of any of the Sale Shares, the disposal of which is subject to its discretion from the date of this Agreement and until the Long Stop Date or the date when this Agreement is terminated in accordance with Clause 3.3, whichever is earlier.
5.9 Each of the Sellers further undertakes to the Buyer that it shall exercise or procure to be exercised all the voting rights attaching to the Sale Listed Shares in favour of the resolution approving the Scheme and the Share Proposal at the shareholders’ meeting of the Company to be held on 17 September 2008, and any adjournment thereof.
Appears in 1 contract
Samples: Share Subscription Agreement
REPRESENTATIONS, WARRANTIES AND UNDERTAKINGS. 5.1 Each of 11.1 UGC and the Sellers represents and warrants Guarantor hereby warrant to the Buyer Xxxxxx Xxxxxxx that each Seller Warranty is true, accurate and not misleading as at the date of this Agreement. Immediately before Closing:
(a) UGC and the Guarantor have the right, each of the Sellers is deemed to warrant to the Buyer that each Seller Warranty is true, accurate power and not misleading by reference to the facts and circumstances on each day before Closing, and for this purpose only any references in the Seller Warranties to the date of this Agreement shall be construed as references to the relevant date. Unless otherwise set out in this Agreement, no other warranty is given by the Sellers.
5.2 Each of the Sellers acknowledges that the Buyer is entering into this Agreement in reliance on each Seller Warranty which has also been given as a representation and with the intention of inducing the Buyer authority to enter into this Agreement and to perform their obligations hereunder (in each case without any consent, approval or notice of any person, governmental agency or body);
(b) none of the events contemplated by this Agreement. The Sellers shall not invoke , the Buyer’s constructive UGC Loan Agreement, the UGC Security Assignment or imputed knowledge the Pledge would or might constitute an event of default or potential event of default in, or otherwise be a fact breach of, any agreement relating to borrowing or circumstance indebtedness in the nature of borrowing which might make has been entered into by UGC or the Guarantor or any of their affiliates in a Seller Warranty untruemanner which is prejudicial to Xxxxxx Xxxxxxx or its affiliates’ rights under this Agreement or the Transaction Documents, inaccurate or misleading as neither would it be a defence to a claim for breach of Clause 5.1.any borrowing restriction contained in the constitutional documents of UGC or the Guarantor or any of their affiliates;
5.3 Each Seller Warranty is to be construed independently (c) the entry into and (except where this Agreement provides otherwise) is not limited performance by a provision UGC and the Guarantor of this Agreement or another Warranty.
5.4 Each and the entry into and performance by UGC of the Sellers represents UGC Loan Agreement, the UGC Security Assignment and warrants the Pledge does not infringe UGC’s or the Guarantor’s constitutional documents, has been duly authorised and complies and will comply in all respects with all relevant Laws of the relevant state of incorporation for each of UGC and the Guarantor;
(d) UGC and the Guarantor have sought and will continue to seek periodically and will follow advice (and will continue to do so) from their auditors and legal advisers in relation to the Buyer that:Guarantor’s financial reporting and any other disclosure or regulatory obligations to their stakeholders or creditors during the period that Xxxxxx Xxxxxxx or its affiliates own NTL Ireland;
5.4.1 (e) the Guarantor and/or UnitedGlobalCom, Inc. will comply with SEC requirements in relation to reporting and will consolidate the Xxxxxx Xxxxxxx SPV and NTL Ireland in accordance with US GAAP (FIN46R);
(f) that the subject matter of the transactions contemplated by the Transaction Documents, connote a relationship between UGC and the Xxxxxx Xxxxxxx SPV which for the purposes of the application of the Exemption Regulation of the Dutch Minister of Finance under the Act on the Supervision of the Credit System 1992 (Wet toezicht kredietwezen 1992), in particular Clause 2 of that regulation, qualifies as a restricted circle (“besloten xxxxx”) and that as a consequence the loan made available by UGC to the Xxxxxx Xxxxxxx SPV pursuant to the UGC Loan Agreement does not violate clause 82 of the Act on the Supervision of the Credit System 1992;
(g) each of UGC and the Sellers is an entity duly organized and validly existing under Guarantor has its centre of main interests (within the laws meaning of its country Council Regulation (EC) No. 1346/2000 of origin29 May 2000 on Insolvency Procedures) in The Netherlands;
5.4.2 each of the Sellers (h) UGC has the legal right, full power and authorityauthority to enter into the UGC Loan Agreement, the UGC Security Assignment and has taken all action necessary, to execute, deliver the Pledge and to exercise its rights, and perform its obligationsobligations thereunder (in each case without any consent, approval or notice of any person, governmental agency or body); and
(i) the obligations of UGC and the Guarantor under this Agreement and any other documents to be executed by each the obligations of UGC under the Sellers pursuant to or in connection with this UGC Loan Agreement, which when executed will the UGC Security Assignment and the Pledge constitute legal, valid and binding obligations on each Seller UGC and its asset management clients for whose account the Sale Shares Guarantor, as the case may be, which are managed enforceable by Xxxxxx Xxxxxxx (in respect of this Agreement) and who are the beneficial owners;
5.4.3 the Sale Shares are beneficially owned by the Sellers’ asset management clients in managed accounts over which the Sellers have investment discretion. To the best of the Sellers’ knowledge, there is no other person who has any legal or beneficial interest in the Sale Shares;
5.4.4 each of the Sellers is validly appointed as discretionary investment manager by the beneficial owners Xxxxxx Xxxxxxx SPV (in respect of the Sale Shares;
5.4.5 the Sale Shares are beneficially owned by the Sellers’ asset management clients; to the best of the Sellers’ knowledgeUGC Loan Agreement, the beneficial owners of the Sale Shares have the full legal right to sell the Sale Shares and which are free from any Encumbrances;
5.4.6 upon completion of the Scheme, the Sellers’ asset management clients will be the sole beneficial owners of the New Unicom Shares UGC Security Assignment and the New Unicom ADSs;Pledge) in the English Courts.
5.4.7 each of the Sellers has not created or permitted the creation of any Encumbrance nor entered into any agreement, arrangement or obligation to create or give an Encumbrance, in relation to any of the Sale Shares, the New Unicom Shares and/or the New Unicom ADSs, and to the best of the Sellers’ knowledge, no person has claimed to be entitled to an Encumbrance in relation to any of the Sale Shares, the New Unicom Shares and/or the New Unicom ADSs;
5.4.8 to the extent it held proxy voting authority, each of the Sellers has tendered votes in respect of the Shares underlying the Sale Netcom ADSs in favour of the resolution approving the scheme of arrangement under section 166 of the Companies Ordinance (Cap 32 of the Laws of Hong Kong) between the Company 11.2 UGC and the shareholders of the Company Guarantor hereby warrant to Xxxxxx Xxxxxxx that as at the extraordinary general meeting date of the Company to be held on 17 September 2008, and any adjournment thereof;
5.4.9 the execution and delivery of, and the performance by each of the Sellers of its obligations under, this Agreement and any other documents to be executed by it pursuant to or in connection with this Agreement will notClosing:
(a) result UGC and the Guarantor have the right, power and authority to perform their obligations hereunder (in a breach each case without any consent, approval or notice of any provision of the constitutional person, governmental agency or organisational documents of each of the Sellersbody);
(b) result none of the events contemplated by this Agreement constitute or might constitute an event of default or potential event of default in, or otherwise be a breach of, any agreement relating to borrowing or indebtedness in the nature of borrowing which has been entered into by UGC or the Guarantor or any of their affiliates in a breach of manner which is prejudicial to Xxxxxx Xxxxxxx or give any third party a right to terminate its affiliates’ rights under this Agreement or modifythe Transaction Documents, or result in the creation of any Encumbrance under, any agreement, licence or other instrument or result in neither would it be a breach of any order, judgment borrowing restriction contained in the constitutional documents of UGC or decree of any court, governmental agency or regulatory body to which each of the Sellers or its nominee is a party or by which any of the Sellers or its nominee Guarantor or any of their respective assets affiliates;
(c) the performance by UGC and the Guarantor of this Agreement does not infringe UGC’s or the Guarantor’s constitutional documents, has been duly authorised and complies and will comply in all respects with all relevant Laws of the relevant state of incorporation for each of UGC and the Guarantor; and
(d) the obligations of UGC and the Guarantor under this Agreement constitute legal, valid and binding obligations on UGC and the Guarantor, as the case may be, which are enforceable by Xxxxxx Xxxxxxx (in respect of this Agreement) in the English Courts.
11.3 UGC and the Guarantor undertake to Xxxxxx Xxxxxxx that they will, as soon as practicable after becoming aware of the same, give notice to Xxxxxx Xxxxxxx of any breach by either of them of any warranty given by them under Clause 11.1 and to be given by them under Clause 11.2 of this Agreement.
11.4 UGC and the Guarantor undertake to Xxxxxx Xxxxxxx that in the event of a breach of Clause 11.1(f), the Guarantor (or in the event that the Guarantor is boundnot permitted to do so by any relevant law, such other UGC Group company as may be permitted by such law) shall immediately assume all of UGC’s obligations under the UGC Loan Agreement and shall perform those obligations in order that none of Xxxxxx Xxxxxxx’x or its affiliates’ rights or entitlements under this Agreement, the UGC Loan Agreement, the UGC Security Assignment or the Pledge are in any way prejudiced.
11.5 UGC and Xxxxxx Xxxxxxx shall provide (or cause to be provided to) the other party in a timely manner with such information as is reasonably necessary to enable such other party to comply with its obligations in relation to the filing of the tax returns relating to Xxxxxx Xxxxxxx SPV or NTL Ireland, in particular the filing of tax returns in the USA. UGC undertakes to Xxxxxx Xxxxxxx that it shall not make (or cause the making of) any elections, claims, notifications or filings (except as required by law) with any tax authority with respect to tax matters relating to any period up to and including the date of Closing with respect to the Xxxxxx Xxxxxxx SPV or NTL Ireland without the prior written consent of Xxxxxx Xxxxxxx. In addition, Xxxxxx Xxxxxxx agrees to notify UGC of any elections, claims, notifications or filings which Xxxxxx Xxxxxxx considers in its sole discretion to be material.
11.6 UGC warrants that it does not have the power to secure:
(a) by means of the holding of shares or the possession of voting power in or in relation to Xxxxxx Xxxxxxx SPV or NTL Ireland; or
(cb) result in any breach by virtue of any contractual covenants or investment management agreement to which each powers conferred by the articles of the Sellers is subject;
5.4.10 each of the Sellers is not a “connected fund manager” (as defined in the Takeovers Code) or a “connected principal trader” (as defined in the Takeovers Code) of the offeror (i.e. Unicom) or the offeree company (i.e. the Company) nor a party acting in concert with the offeror and that consent from the Executive Director of the Corporate Finance Division of the Securities & Futures Commission is not required for the sale of the Sale Shares;
5.4.11 each of the Sellers is not required to obtain any other person’s consent in relation to the sale of the Sale Shares, the New Unicom Shares and the New Unicom ADSs;
5.4.12 each of the Sellers is not a connected person (as such term is defined in the Rules Governing the Listing of Securities on The Hong Kong Stock Exchange Limited) of the Company or Unicom;
5.4.13 no petition has been presented or order made and no meeting convened or resolution passed for the winding up or administration of any of the Sellers or for a provisional liquidator to be appointed in respect of any of the Sellers;
5.4.14 no distress, execution association or other process has been levied on any document regulating the Xxxxxx Xxxxxxx SPV or NTL Ireland, that the affairs of the assets of any of the Sellers, and no judgment creditor nor any liquidator, provisional liquidator, receiver either Xxxxxx Xxxxxxx SPV or an administrative receiver of any of the Sellers has been appointed and there is no reason to believe that such a person might be appointed;
5.4.15 no voluntary arrangement has been proposed NTL Ireland are conducted in respect of any of the Sellers and their creditors; and
5.4.16 each of the Sellers is not insolvent, or unable to pay accordance with its debts, and has not stopped paying its debts as they fall due, and no event analogous to any of the foregoing has occurred in or outside Hong Kongwishes.
5.5 The Buyer represents and 11.7 Xxxxxx Xxxxxxx hereby warrants to the Sellers UGC that each Buyer Warranty is true, accurate and not misleading as at the date of this Agreement. Immediately before Closing:
(a) Xxxxxx Xxxxxxx has the right, the Buyer is deemed to warrant to the Sellers that each Buyer Warranty is true, accurate power and not misleading by reference to the facts and circumstances on each day before Closing, and for this purpose only, any references in the Buyer Warranties to the date of this Agreement shall be construed as references to the relevant date. Unless otherwise set out in this Agreement, no other warranty is given by the Buyer.
5.6 The Buyer acknowledges that each of the Sellers is entering into this Agreement in reliance on each Buyer Warranty which has also been given as a representation and with the intention of inducing the Sellers authority to enter into this Agreement. The Buyer shall not invoke , the Sellers’ constructive UGC Security Assignment and the Pledge and to perform its obligations thereunder (in each case without any consent, approval or imputed knowledge notice of a fact any person, governmental agency or circumstance which might make a Buyer Warranty untrue, inaccurate or misleading as a defence to a claim for breach of Clause 5.5.
5.7 The Buyer represents and warrants to the Sellers that:
5.7.1 the Buyer is a corporation duly organized and validly existing under the laws of its country of originbody);
5.7.2 (b) none of the Buyer has the legal right, full power and authority, and has taken all action necessary, to execute, deliver and to exercise its rights, and perform its obligations, under this Agreement and any other documents to be executed events contemplated by the Buyer pursuant to or in connection with this Agreement, the UGC Security Assignment or the Pledge would or might constitute an event of default or potential event of default in, or otherwise be a breach of, any agreement relating to borrowing or indebtedness in the nature of borrowing which when executed has been entered into by Xxxxxx Xxxxxxx, neither would it be a breach of any borrowing restriction contained in the constitutional documents of Xxxxxx Xxxxxxx;
(c) the entry into and performance by Xxxxxx Xxxxxxx of this Agreement, the UGC Security Assignment and the Pledge and the entry into and performance by the Xxxxxx Xxxxxxx SPV of the UGC Loan Agreement, does not infringe Xxxxxx Xxxxxxx’x or the Xxxxxx Xxxxxxx SPV’s constitutional documents as the case may be, has been duly authorised and complies and will comply in all respects with all relevant Laws of England;
(d) the Xxxxxx Xxxxxxx SPV has the right, power and authority to enter into the UGC Loan Agreement and to perform its obligations thereunder (in each case without any consent, approval or notice of any person, governmental agency or body); and
(e) the obligations of Xxxxxx Xxxxxxx under this Agreement, the UGC Security Assignment and the Pledge and the obligations of the Xxxxxx Xxxxxxx SPV under the UGC Loan Agreement, constitute legal, valid and binding obligations on the Buyer;
5.7.3 the execution and delivery of, of Xxxxxx Xxxxxxx and the performance Xxxxxx Xxxxxxx SPV as the case may be which are enforceable by UGC in the Buyer English Courts.
11.8 Xxxxxx Xxxxxxx hereby warrants to UGC that as at the date of its obligations under, this Agreement and any other documents to be executed by it pursuant to or in connection with this Agreement will notClosing:
(a) result Xxxxxx Xxxxxxx has the right, power and authority to perform its obligations hereunder and the Xxxxxx Xxxxxxx SPV has the right, power and authority to perform its obligations under the UGC Loan Agreement (in each case without any consent, approval or notice of any person, governmental agency or body);
(b) none of the events contemplated by this Agreement would or might constitute an event of default or potential event of default in, or otherwise be a breach of, any agreement relating to borrowing or indebtedness in the nature of borrowing which has been entered into by Xxxxxx Xxxxxxx in a manner which is prejudicial to Closing, neither would it be a breach of any provision borrowing restriction contained in the constitutional documents of Xxxxxx Xxxxxxx;
(c) the obligations of Xxxxxx Xxxxxxx under this Agreement constitute legal, valid and binding obligations of Xxxxxx Xxxxxxx which are enforceable by UGC in the English Courts and the obligations of the constitutional or organisational documents Xxxxxx Xxxxxxx SPV under the UGC Loan Agreement constitute legal, valid and binding obligations of the BuyerXxxxxx Xxxxxxx SPV which are enforceable by UGC in the English Courts;
(d) all of the Shares are fully-paid, or properly credited as fully-paid, and Xxxxxx Xxxxxxx is the sole legal and beneficial owner of the Shares free from all security interests, options, equities, claims or other third party rights (including, without limitation, rights of pre-emption) of any nature whatsoever and Xxxxxx Xxxxxxx has the legal right to dispose of the Shares;
(e) since the date of incorporation and until the date of Closing, the Xxxxxx Xxxxxxx SPV has at no time traded or incurred any liabilities or commitments (actual or contingent, present or future) save in relation to the acquisition, ownership and management of NTL Ireland;
(f) other than as provided for under the terms of the Transaction Documents, no person has, or may in any circumstances have or acquire, the right to subscribe for or purchase any share or loan capital of the Xxxxxx Xxxxxxx SPV or to convert any of the Shares into shares of a different class or to convert any loan capital into shares;
(g) the Xxxxxx Xxxxxxx SPV has not at any time been a subsidiary of any company other than Xxxxxx Xxxxxxx (or its affiliates);
(h) the Xxxxxx Xxxxxxx SPV does not have nor has had any subsidiaries other than NTL Communications (Ireland) Limited and NTL Irish Networks Limited and their respective subsidiaries (from time to time);
(i) the register of members and other statutory books of the Xxxxxx Xxxxxxx SPV have been, in all material respects, properly kept and in all material respects, contain a true, accurate and complete record of the matters with which they should deal and no notice or allegation that they are incorrect in any material respect or that they should be rectified in any material respect has been made;
(j) the Xxxxxx Xxxxxxx SPV has complied in all material respects with all of its statutory tax filing, payment and reporting obligations under the laws of the Netherlands; and
(k) the Xxxxxx Xxxxxxx SPV will be a corporation for US tax purposes.
11.9 Xxxxxx Xxxxxxx undertakes to UGC that it will, as soon as practicable after becoming aware of the same, give notice to UGC of any breach by it of any of the warranties given by it under this Clause 11 of this Agreement.
11.10 Other than as contemplated or provided for in this Agreement, Xxxxxx Xxxxxxx agrees that it will not transfer the Shares or the Xxxxxx Xxxxxxx Interest to any affiliate of Xxxxxx Xxxxxxx during the Period without UGC’s consent, such consent not to be unreasonably withheld or delayed.
11.11 In the event that UGC requests that, instead of acquiring the Shares it wishes to acquire the Xxxxxx Xxxxxxx Interest by some other method, Xxxxxx Xxxxxxx agrees to consult in good faith with UGC in relation to such request provided that, in the event that Xxxxxx Xxxxxxx does not agree to such request, the sale of the Shares shall proceed as provided in this Agreement.
11.12 Prior to requesting payment from UGC in respect of discharging any VAT payments payable by it hereunder Xxxxxx Xxxxxxx agrees to consult with UGC in relation the issuing of VAT invoices provided that nothing in this clause shall oblige Xxxxxx Xxxxxxx to take into account any comments UGC may have or xxxxxx Xxxxxx Xxxxxxx’x sole discretion to issue VAT invoices.
11.13 Prior to the submission of any claim or election in respect of the Xxxxxx Xxxxxxx SPV (which Xxxxxx Xxxxxxx is aware of and considers in its sole discretion to be material), Xxxxxx Xxxxxxx agrees to consult with UGC in relation to such submission provided that nothing in this clause shall oblige Xxxxxx Xxxxxxx to take into account any comments UGC may have or xxxxxx Xxxxxx Xxxxxxx’x sole discretion to deal with or make any such submission. For the avoidance of doubt nothing in this clause or this agreement obliges Xxxxxx Xxxxxxx or any of its affiliates to provide UGC with copies of any tax returns or extracts thereof (or any other information whether of the US or otherwise).
11.14 Xxxxxx Xxxxxxx agrees that to the extent that any relief is considered by Xxxxxx Xxxxxxx to arise pursuant to the Disposal and which is not considered by Xxxxxx Xxxxxxx to be capable of set off against the Additional Amount, and is otherwise available and utilisable as initially determined by the filing position taken by Xxxxxx Xxxxxxx in preparing its US tax return for the year ended 30 November 2005, Xxxxxx Xxxxxxx acting at its sole discretion, shall:
(a) notify UGC of the quantum of such relief as set out in its US tax return; and
(b) determine the quantum of the relief (as mentioned in (i) above) once the relevant US taxation authorities have finally confirmed that the relief is available and utilisable and Xxxxxx Xxxxxxx shall once the relief has actually been used by Xxxxxx Xxxxxxx pay to UGC or its affiliates, an amount equal to the monetary value (as determined by Xxxxxx Xxxxxxx) of such relief (or such part of it as has been used). The provisions of this clause shall terminate on 30 November 2010 and Xxxxxx Xxxxxxx shall have no obligations under this clause after this date.
11.15 UGC agrees that any failure by Xxxxxx Xxxxxxx to comply with its obligations in clauses 11.5, and 11.12 to 11.14 shall be without prejudice to:
(a) any UGC Obligation; or
(b) result in a breach of or give any third party a right to terminate or modify, or result in the creation of any Encumbrance under, any agreement, licence or other instrument or result in a breach of any order, judgment or decree of any court, governmental agency or regulatory body to which the Buyer or its nominee is a party or by which any of the Buyer or its nominee or any of their respective assets is bound;
5.7.4 the Buyer is not required to obtain any other person’s consent in relation to the acquisition of the Sale Shares;
5.7.5 no petition has been presented obligation or order made and no meeting convened or resolution passed for the winding up or administration of the Buyer or for a provisional liquidator to be appointed in respect of the Buyer;
5.7.6 no distress, execution or other process has been levied on any of the assets of the Buyer, and no judgment creditor nor any liquidator, provisional liquidator, receiver or an administrative receiver of the Buyer has been appointed and there is no reason to believe liability that such a person might be appointed;
5.7.7 no voluntary arrangement has been proposed in respect of the Buyer and its creditors; and
5.7.8 the Buyer is not insolvent, or unable to pay its debts, and has not stopped paying its debts as they fall due, and no event analogous UGC may have to any of the foregoing has occurred Indemnified Person otherwise than under this Agreement, which shall in or outside Hong Kongeach case continue in full force and effect.
5.8 Each of the Sellers undertakes to the Buyer that it shall not dispose of or enter into any agreement or arrangement to dispose of or permit the disposal of any of the Sale Shares, the disposal of which is subject to its discretion from the date of this Agreement and until the Long Stop Date or the date when this Agreement is terminated in accordance with Clause 3.3, whichever is earlier.
5.9 Each of the Sellers further undertakes to the Buyer that it shall exercise or procure to be exercised all the voting rights attaching to the Sale Listed Shares in favour of the resolution approving the Scheme and the Share Proposal at the shareholders’ meeting of the Company to be held on 17 September 2008, and any adjournment thereof.
Appears in 1 contract
REPRESENTATIONS, WARRANTIES AND UNDERTAKINGS. 5.1 Each of the Sellers 6.1 The Vendor represents and warrants to the Buyer Purchaser that each Seller Warranty is true, accurate and not misleading at the date of this Agreement. Immediately before Closing, each of the Sellers is deemed to warrant to the Buyer that each Seller Warranty is true, accurate and not misleading by reference to the facts and circumstances on each day before Closing, and for this purpose only any references in the Seller Warranties to the date of this Agreement shall be construed as references to the relevant date. Unless otherwise set out in this Agreement, no other warranty is given by the Sellers.
5.2 Each of the Sellers acknowledges that the Buyer is entering into this Agreement in reliance on each Seller Warranty which has also been given as a representation and with the intention of inducing the Buyer to enter into this Agreement. The Sellers shall not invoke the Buyer’s constructive or imputed knowledge of a fact or circumstance which might make a Seller Warranty untrue, inaccurate or misleading as a defence to a claim for breach of Clause 5.1.
5.3 Each Seller Warranty is to be construed independently and (except where this Agreement provides otherwise) is not limited by a provision of this Agreement or another Warranty.
5.4 Each of the Sellers represents and warrants to the Buyer that:
5.4.1 each of the Sellers is an entity duly organized and validly existing under the laws of its country of origin;
5.4.2 each of the Sellers it has the legal right, full power power, legal capacity and authority, and has taken obtained all action necessarynecessary approvals, to execute, deliver and to exercise its rights, and perform its obligations, under enter into this Agreement and any other documents to be executed by each of the Sellers pursuant to or in connection with this Agreement, which when executed will constitute valid and binding obligations on each Seller and its asset management clients for whose account the Sale Shares are managed and who are the beneficial owners;
5.4.3 the Sale Shares are beneficially owned by the Sellers’ asset management clients in managed accounts over which the Sellers have investment discretion. To the best of the Sellers’ knowledge, there is no other person who has any legal or beneficial interest in the Sale Shares;
5.4.4 each of the Sellers is validly appointed as discretionary investment manager by the beneficial owners in respect of the Sale Shares;
5.4.5 the Sale Shares are beneficially owned by the Sellers’ asset management clients; to the best of the Sellers’ knowledge, the beneficial owners of the Sale Shares have the full legal right to sell the Sale Shares and which are free from any Encumbrances;
5.4.6 upon completion of the Scheme, the Sellers’ asset management clients will be the sole beneficial owners of the New Unicom Shares and the New Unicom ADSs;
5.4.7 each of the Sellers has not created or permitted the creation of any Encumbrance nor entered into any agreement, arrangement or obligation to create or give an Encumbrance, in relation to any of the Sale Shares, the New Unicom Shares and/or the New Unicom ADSs, and to the best of the Sellers’ knowledge, no person has claimed to be entitled to an Encumbrance in relation to any of the Sale Shares, the New Unicom Shares and/or the New Unicom ADSs;
5.4.8 to the extent it held proxy voting authority, each of the Sellers has tendered votes in respect of the Shares underlying the Sale Netcom ADSs in favour of the resolution approving the scheme of arrangement under section 166 of the Companies Ordinance (Cap 32 of the Laws of Hong Kong) between the Company and the shareholders of the Company at the extraordinary general meeting of the Company to be held on 17 September 2008, and any adjournment thereof;
5.4.9 the execution and delivery of, and the performance by each of the Sellers of its obligations under, this Agreement and any other documents to be executed by it such pursuant to or in connection with this Agreement will not:
(a) result in a breach of any provision of the constitutional or organisational documents of each of the Sellers;
(b) result in a breach of or give any third party a right to terminate or modify, or result in the creation of any Encumbrance under, any agreement, licence or other instrument or result in a breach of any order, judgment or decree of any court, governmental agency or regulatory body to which each of the Sellers or its nominee is a party or by which any of the Sellers or its nominee or any of their respective assets is bound; or
(c) result in any breach of any contractual covenants or investment management agreement to which each of the Sellers is subject;
5.4.10 each of the Sellers is not a “connected fund manager” (as defined in the Takeovers Code) or a “connected principal trader” (as defined in the Takeovers Code) of the offeror (i.e. Unicom) or the offeree company (i.e. the Company) nor a party acting in concert with the offeror and that consent from the Executive Director of the Corporate Finance Division of the Securities & Futures Commission is not required for the sale of the Sale Shares;
5.4.11 each of the Sellers is not required to obtain any other person’s consent in relation to the sale of the Sale Shares, the New Unicom Shares and the New Unicom ADSs;
5.4.12 each of the Sellers is not a connected person (as such term is defined in the Rules Governing the Listing of Securities on The Hong Kong Stock Exchange Limited) of the Company or Unicom;
5.4.13 no petition has been presented or order made and no meeting convened or resolution passed for the winding up or administration of any of the Sellers or for a provisional liquidator to be appointed in respect of any of the Sellers;
5.4.14 no distress, execution or other process has been levied on any of the assets of any of the Sellers, and no judgment creditor nor any liquidator, provisional liquidator, receiver or an administrative receiver of any of the Sellers has been appointed and there is no reason to believe that such a person might be appointed;
5.4.15 no voluntary arrangement has been proposed in respect of any of the Sellers and their creditors; and
5.4.16 each of the Sellers is not insolvent, or unable to pay its debts, and has not stopped paying its debts as they fall due, and no event analogous to any of the foregoing has occurred in or outside Hong Kong.
5.5 The Buyer represents and warrants to the Sellers that each Buyer Warranty is true, accurate and not misleading at the date of this Agreement. Immediately before Closing, the Buyer is deemed to warrant to the Sellers that each Buyer Warranty is true, accurate and not misleading by reference to the facts and circumstances on each day before Closing, and for this purpose only, any references in the Buyer Warranties to the date of this Agreement shall be construed as references to the relevant date. Unless otherwise set out in this Agreement, no other warranty is given by the Buyer.
5.6 The Buyer acknowledges that each of the Sellers is entering into this Agreement in reliance on each Buyer Warranty which has also been given as a representation and with the intention of inducing the Sellers to enter into this Agreement. The Buyer shall not invoke the Sellers’ constructive or imputed knowledge of a fact or circumstance which might make a Buyer Warranty untrue, inaccurate or misleading as a defence to a claim for breach of Clause 5.5.
5.7 The Buyer represents and warrants to the Sellers that:
5.7.1 the Buyer is a corporation duly organized and validly existing under the laws of its country of origin;
5.7.2 the Buyer has the legal right, full power and authority, and has taken all action necessary, to execute, deliver and to exercise its rights, rights and perform its obligationsobligations hereunder, under and this Agreement and any other the said documents to be executed by the Buyer pursuant to or in connection with this Agreementwhen signed shall constitute legal, which when executed will constitute valid and binding obligations on the Buyer;Vendor and enforceable in accordance with their terms.
5.7.3 6.2 The Vendor represents and warrants to the execution Purchaser that upon Completion, the Sale Shares sold by the Vendor shall be fully paid up and delivery ofare legally and beneficially owned by it, and it has the performance power, authority, legal capacity and has obtained authorisation to sell and transfer the Sale Shares to be sold by it, and that the Buyer Sale Shares to be sold by it shall be free from Encumbrances with all rights attached thereto on the Completion Date.
6.3 If, after the signing of its obligations under, this Agreement and before Completion, any other documents event shall occur or matter shall arise which results or may result in any of the Warranties being untrue, misleading or inaccurate in any respect, the Vendor giving such Warranty shall immediately notify the Purchaser in writing thereof prior to be executed by it pursuant to Completion.
6.4 The total aggregate liability of the Vendor for any claim or in connection with claims of breaches under this Agreement will not:(excluding other legal and other costs and expenses) shall not in any event exceed an amount equals to the Total Share Consideration.
(a) result 6.5 No claim may be brought against the Vendor in respect of a breach of any provision of the constitutional or organisational documents Warranties after expiration of a period of six months from the Buyer; or
Completion Date (b“Warranty Expiry Date") result and the Vendor shall not be liable in a breach respect of or give any third party a right to terminate or modify, or result in the creation of any Encumbrance under, any agreement, licence or other instrument or result in a breach of any order, judgment or decree of any court, governmental agency or regulatory body to which the Buyer or its nominee is a party or by which any of the Buyer Warranties unless it shall have received written notice from the Purchaser prior to the Warranty Expiry Date giving reasonable details of the relevant claim and any such claim shall (if not previously satisfied, settled or its nominee withdrawn) be deemed to have been waived or any withdrawn at the expiry of their respective assets is bound;a period of six months after the Warranty Expiry Date unless proceedings in respect thereof shall have already been commenced against the Vendor.
5.7.4 6.6 No claim shall lie against the Buyer is not required to obtain any other person’s consent Vendor (under or in relation to the acquisition Warranties or any provision of this Agreement) or to the Sale Shares;
5.7.5 no petition has been presented extent that such claim is attributable to any voluntary act, omission, transaction, or order made and no meeting convened arrangement carried out directly by the Purchaser or resolution passed for the winding up on its behalf or administration of the Buyer or for a provisional liquidator to be appointed in respect of the Buyer;
5.7.6 no distress, execution or other process has been levied on by persons deriving title from any of the assets Purchaser after the Completion.
6.7 The Vendor represents and warrants that, in entering into this Agreement: (i) it is not in possession of any inside information relating to the Company; (ii) it has not communicated, disseminated, relayed or disclosed any inside information relating to the Company, any shares of the BuyerCompany, and no judgment creditor nor any liquidator, provisional liquidator, receiver directors or an administrative receiver officers of the Buyer has been appointed and there is no reason to believe that such a person might be appointed;
5.7.7 no voluntary arrangement has been proposed in respect Company or any substantial shareholders of the Buyer Company; and its creditors; and
5.7.8 the Buyer (iii) it is not insolvent, in breach or unable to pay its debtsviolation of, and has not stopped paying its debts as they fall dueengaged in any acts, and no event analogous omissions or conduct which may cause it or the Purchaser to be in breach or violation of, any Applicable Laws, including any provisions of Parts XIII or XIV of the foregoing has occurred in or outside Securities and Futures Ordinance (Cap. 571 of the laws of Hong Kong).
5.8 Each of the Sellers undertakes to the Buyer that it shall not dispose of or enter into any agreement or arrangement to dispose of or permit the disposal of any of the Sale Shares, the disposal of which is subject to its discretion from the date of this Agreement and until the Long Stop Date or the date when this Agreement is terminated in accordance with Clause 3.3, whichever is earlier.
5.9 Each of the Sellers further undertakes to the Buyer that it shall exercise or procure to be exercised all the voting rights attaching to the Sale Listed Shares in favour of the resolution approving the Scheme and the Share Proposal at the shareholders’ meeting of the Company to be held on 17 September 2008, and any adjournment thereof.
Appears in 1 contract
Samples: Sale and Purchase Agreement (China Natural Resources Inc)
REPRESENTATIONS, WARRANTIES AND UNDERTAKINGS. 5.1 Each 6.1 The Seller Parties jointly and severally represent, warrant and undertake to the Buyer:-
6.1.1 in the terms of Schedule 1;
6.1.2 that the contents of the Sellers represents and warrants to the Buyer that each Seller Warranty is Buyer's Report are true, accurate and not misleading at the date of this Agreement. Immediately before Closingcomplete in all respects and fully, each clearly and accurately divulge every matter to which they relate;
6.1.3 that upon any event occurring or matter arising which results in any of the Sellers is deemed to warrant to Warranties being unfulfilled, untrue, misleading or inaccurate in any respect at Completion or any breach or non-fulfilment of any of the undertakings, agreements or obligations of the Seller Parties or any of them contained in this Agreement the Seller Parties will as soon as reasonably practicable thereafter notify the Buyer that each Seller Warranty is trueof the same and give details of and, accurate and not misleading by reference to the facts and circumstances on each day before Closingwhere requested, and for this purpose only any references investigate fully all relevant circumstances.
6.2 The Warranties contained in the Seller Warranties to the date of this Agreement shall be construed as references will each remain in full force and effect beyond and notwithstanding Completion and are each made without prejudice to any of the relevant dateothers. Unless otherwise set out in this AgreementSubject to Clause 7, no other warranty is given by the Sellers.
5.2 Each of the Sellers acknowledges that the Buyer is entering into this Agreement in reliance on each Seller Warranty which has also been given as a representation and with the intention of inducing the Buyer to enter into this Agreement. The Sellers shall not invoke the Buyer’s constructive or imputed knowledge of a fact or circumstance which might make a Seller Warranty untrue, inaccurate or misleading as a defence to a claim for breach of Clause 5.1.
5.3 Each Seller Warranty is to be construed independently and (except where this Agreement provides otherwise) is not limited by a provision of this Agreement will limit the extent or another Warranty.
5.4 Each application of any Warranty and although those contained in Schedule 1 are given subject to matters fully and fairly disclosed in the Sellers represents and warrants to the Buyer that:
5.4.1 each of the Sellers is an entity duly organized and validly existing under the laws of its country of origin;
5.4.2 each of the Sellers has the legal right, full power and authority, and has taken all action necessary, to execute, deliver and to exercise its rights, and perform its obligations, under this Agreement and any other documents to be executed by each of the Sellers pursuant to or in connection with this Agreement, which when executed will constitute valid and binding obligations on each Seller and its asset management clients for whose account the Sale Shares are managed and who are the beneficial owners;
5.4.3 the Sale Shares are beneficially owned by the Sellers’ asset management clients in managed accounts over which the Sellers have investment discretion. To the best of the Sellers’ knowledge, there is Disclosure Letter no other person who has any legal or beneficial interest in the Sale Shares;
5.4.4 each of the Sellers is validly appointed as discretionary investment manager by the beneficial owners in respect of the Sale Shares;
5.4.5 the Sale Shares are beneficially owned by the Sellers’ asset management clients; to the best of the Sellers’ knowledge, the beneficial owners of the Sale Shares have the full legal right to sell the Sale Shares and which are free from any Encumbrances;
5.4.6 upon completion of the Scheme, the Sellers’ asset management clients will be the sole beneficial owners of the New Unicom Shares and the New Unicom ADSs;
5.4.7 each of the Sellers has not created or permitted the creation of any Encumbrance nor entered into any agreement, arrangement or obligation to create or give an Encumbrance, in relation information relating to any Group Company of the Sale Shares, the New Unicom Shares and/or the New Unicom ADSs, and to the best of the Sellers’ knowledge, no person has claimed to be entitled to an Encumbrance in relation to any of the Sale Shares, the New Unicom Shares and/or the New Unicom ADSs;
5.4.8 to the extent it held proxy voting authority, each of the Sellers has tendered votes in respect of the Shares underlying the Sale Netcom ADSs in favour of the resolution approving the scheme of arrangement under section 166 of the Companies Ordinance (Cap 32 of the Laws of Hong Kong) between the Company and the shareholders of the Company at the extraordinary general meeting of the Company to be held on 17 September 2008, and any adjournment thereof;
5.4.9 the execution and delivery of, and the performance by each of the Sellers of its obligations under, this Agreement and any other documents to be executed by it pursuant to or in connection with this Agreement will not:
(a) result in a breach of any provision of the constitutional or organisational documents of each of the Sellers;
(b) result in a breach of or give any third party a right to terminate or modify, or result in the creation of any Encumbrance under, any agreement, licence or other instrument or result in a breach of any order, judgment or decree of any court, governmental agency or regulatory body to which each of the Sellers or its nominee is a party or by which any of the Sellers or its nominee or any of their respective assets is bound; or
(c) result in any breach of any contractual covenants or investment management agreement to which each of the Sellers is subject;
5.4.10 each of the Sellers is not a “connected fund manager” (as defined in the Takeovers Code) or a “connected principal trader” (as defined in the Takeovers Code) of the offeror (i.e. Unicom) or the offeree company (i.e. the Company) nor a party acting in concert with the offeror and that consent from the Executive Director of the Corporate Finance Division of the Securities & Futures Commission is not required for the sale of the Sale Shares;
5.4.11 each of the Sellers is not required to obtain any other person’s consent in relation to the sale of the Sale Shares, the New Unicom Shares and the New Unicom ADSs;
5.4.12 each of the Sellers is not a connected person (as such term is defined in the Rules Governing the Listing of Securities on The Hong Kong Stock Exchange Limited) of the Company or Unicom;
5.4.13 no petition has been presented or order made and no meeting convened or resolution passed for the winding up or administration of any of the Sellers or for a provisional liquidator to be appointed in respect of any of the Sellers;
5.4.14 no distress, execution or other process has been levied on any of the assets of any of the Sellers, and no judgment creditor nor any liquidator, provisional liquidator, receiver or an administrative receiver of any of the Sellers has been appointed and there is no reason to believe that such a person might be appointed;
5.4.15 no voluntary arrangement has been proposed in respect of any of the Sellers and their creditors; and
5.4.16 each of the Sellers is not insolvent, or unable to pay its debts, and has not stopped paying its debts as they fall due, and no event analogous to any of the foregoing has occurred in or outside Hong Kong.
5.5 The Buyer represents and warrants to the Sellers that each Buyer Warranty is true, accurate and not misleading at the date of this Agreement. Immediately before Closing, the Buyer is deemed to warrant to the Sellers that each Buyer Warranty is true, accurate and not misleading by reference to the facts and circumstances on each day before Closing, and for this purpose only, any references in the Buyer Warranties to the date of this Agreement shall be construed as references to the relevant date. Unless otherwise set out in this Agreement, no other warranty is given by the Buyer.
5.6 The Buyer acknowledges that each of the Sellers is entering into this Agreement in reliance on each Buyer Warranty which has also been given as a representation and with the intention of inducing the Sellers to enter into this Agreement. The Buyer shall not invoke the Sellers’ constructive or imputed knowledge of a fact or circumstance which might make a Buyer Warranty untrue, inaccurate or misleading as a defence to a claim for breach of Clause 5.5.
5.7 The Buyer represents and warrants to the Sellers that:
5.7.1 the Buyer is a corporation duly organized and validly existing under the laws of its country of origin;
5.7.2 the Buyer has the legal right, full power and authority, and has taken all action necessary, to execute, deliver and to exercise its rights, and perform its obligations, under this Agreement and any other documents to be executed by the Buyer pursuant to or in connection with this Agreement, which when executed will constitute valid and binding obligations on the Buyer;
5.7.3 the execution and delivery of, and the performance by the Buyer of its obligations under, this Agreement and any other documents to be executed by it pursuant to or in connection with this Agreement will not:
(a) result in a breach of any provision of the constitutional or organisational documents of the Buyer; or
(b) result in a breach of or give any third party a right to terminate or modify, or result in the creation of any Encumbrance under, any agreement, licence or other instrument or result in a breach of any order, judgment or decree of any court, governmental agency or regulatory body to which the Buyer or any of its nominee is advisers has knowledge (actual or constructive) will prejudice any claim made by the Buyer under any such Warranties or operate to reduce any amounts recoverable. Each disclosure in the Disclosure Letter shall (if it refers to any separate document) identify such document with a party copy of the relevant document being attached to the Disclosure Letter; any disclosure which fails to comply with the foregoing requirement in any respect shall not be effective and the matters stated therein shall be deemed not to be disclosed so that the Warranties shall continue to have full effect without qualification in any respect by such disclosure. Notwithstanding the above or any other provision of this Agreement:-
6.2.1 the Warranties contained in paragraph 1 and paragraph 6.1.1 of Schedule 1 shall not be or be capable of being qualified or discharged by which any disclosure made by the Seller Parties, Clause 5 or in any other way; and
6.2.2 the Warranties shall not be or be capable of being qualified or discharged by the Disclosure Letter, Clause 7 or in any other way insofar as any Claim arises as a consequence of the fraud or wilful or negligent misconduct or concealment of the Seller Parties.
6.3 Subject to the provisions of Clause 7, without restricting the rights of the Buyer or its nominee or ability to claim damages on any basis, the amount of their respective assets is bound;
5.7.4 any Claim may be determined as and be deemed to be and the Seller Parties shall at all times indemnify and keep fully and effectively indemnified the Buyer is not required (for itself and at its option on behalf of its officers, employees, directors, shareholders, advisors and agents (other than the Seller Parties)) from and in respect of:-
6.3.1 the amount of all loss, damage or Liability (and all costs, charges, interest, fines, penalties and expenses incidental or relating to obtain the same (including without limitation all expenses of investigations and legal fees and expenses on a solicitor and own client basis) whether reasonable, foreseeable, contemplated or avoidable and suffered directly or indirectly and/or the amount of any other person’s consent depletion or diminution in the value of the Assets or the Business in each case suffered or incurred by the Buyer directly or indirectly as a result of, in connection with or in relation to the acquisition subject matter of such Claim; or
6.3.2 the Sale Shares;
5.7.5 no petition has been presented amount by which the Business or order made and no meeting convened any Assets or resolution passed for the winding up or administration Liabilities of the Buyer are respectively less or for a provisional liquidator to be appointed more than they would have been had the relevant statement in Schedule 1 been true and not misleading.
6.4 Save as otherwise provided herein and save as regards matters already disclosed in the Disclosure Letter the rights and remedies of the Buyer in respect of the Buyer;
5.7.6 no distress, execution or other process has been levied on any breach of the assets Warranties shall not be affected by Completion, by any investigation made by it or on its behalf into the affairs of the BuyerSeller or the Business, and no judgment creditor nor any liquidator, provisional liquidator, receiver by its rescinding or an administrative receiver of the Buyer has been appointed and there is no reason failing to believe that such a person might be appointed;
5.7.7 no voluntary arrangement has been proposed in respect of the Buyer and its creditors; and
5.7.8 the Buyer is not insolvent, or unable to pay its debts, and has not stopped paying its debts as they fall due, and no event analogous to any of the foregoing has occurred in or outside Hong Kong.
5.8 Each of the Sellers undertakes to the Buyer that it shall not dispose of or enter into any agreement or arrangement to dispose of or permit the disposal of any of the Sale Shares, the disposal of which is subject to its discretion from the date of rescind this Agreement and until the Long Stop Date or the date when this Agreement is terminated in accordance with Clause 3.3, whichever is earlierby any other event or matter whatsoever.
5.9 Each of the Sellers further undertakes to the Buyer that it shall exercise or procure to be exercised all the voting rights attaching to the Sale Listed Shares in favour of the resolution approving the Scheme and the Share Proposal at the shareholders’ meeting of the Company to be held on 17 September 2008, and any adjournment thereof.
Appears in 1 contract
Samples: Agreement for the Sale and Purchase of the Business and Assets (Take Two Interactive Software Inc)
REPRESENTATIONS, WARRANTIES AND UNDERTAKINGS. 5.1 Each of 3.1 The Obligors hereby make the Sellers represents following representations and warrants warranties:
(1) They have full power and authority to execute and perform this Agreement;
(2) The Obligors do not have any action, arbitration or any other judicial or administrative procedure pending or that may potentially materially affect the Buyer that each Seller Warranty is true, accurate and not misleading at the date performance of this Agreement. Immediately before Closing, each ;
(3) No Obligor has been declared bankrupt;
(4) Other than the share pledge created in favor of the Sellers Obligee, there is deemed to warrant not any mortgage, pledge, charge or any other third-party encumbrance created upon the Shares held by the Obligors;
(5) The Option granted by the Obligors to the Buyer that each Seller Warranty Obligee hereunder is true, accurate and not misleading by reference to the facts and circumstances on each day before Closingexclusive, and for this purpose only the Obligors will not grant an option or similar right to any references in other third-party through other means.
3.2 The Obligors hereby undertake that, throughout the Seller Warranties to the date term of this Agreement:
(1) They will sign a Share Transfer Agreement shall be construed as references and adopt a shareholders’ resolution according to the relevant date. Unless otherwise set out in this Agreement, no other warranty is given by and assist the Sellers.
5.2 Each of Obligee to obtain the Sellers acknowledges that necessary approval from the Buyer is entering into this Agreement in reliance on each Seller Warranty which has also been given as a representation and with government authority regarding the intention of inducing share transfer, to submit the Buyer to enter into this Share Transfer Agreement. The Sellers shall not invoke , the Buyer’s constructive or imputed knowledge of a fact or circumstance which might make a Seller Warranty untrue, inaccurate or misleading as a defence to a claim for breach of Clause 5.1.
5.3 Each Seller Warranty is to be construed independently and (except where this Agreement provides otherwise) is not limited by a provision of this Agreement or another Warranty.
5.4 Each of the Sellers represents and warrants amendment to the Buyer that:
5.4.1 each Articles of Association and the Sellers is an entity duly organized and validly existing under the laws updated register of its country of origin;
5.4.2 each of the Sellers has the legal right, full power and authority, and has taken all action necessary, to execute, deliver and to exercise its rights, and perform its obligations, under this Agreement and any other documents to be executed by each of the Sellers pursuant to or in connection with this Agreement, which when executed will constitute valid and binding obligations on each Seller and its asset management clients for whose account the Sale Shares are managed and who are the beneficial owners;
5.4.3 the Sale Shares are beneficially owned by the Sellers’ asset management clients in managed accounts over which the Sellers have investment discretion. To the best of the Sellers’ knowledge, there is no other person who has any legal or beneficial interest in the Sale Shares;
5.4.4 each of the Sellers is validly appointed as discretionary investment manager by the beneficial owners in respect of the Sale Shares;
5.4.5 the Sale Shares are beneficially owned by the Sellers’ asset management clients; shareholders to the best of the Sellers’ knowledge, the beneficial owners of the Sale Shares have the full legal right to sell the Sale Shares competent administration for industry and which are free from any Encumbrances;
5.4.6 upon completion of the Scheme, the Sellers’ asset management clients will be the sole beneficial owners of the New Unicom Shares and the New Unicom ADSs;
5.4.7 each of the Sellers has not created or permitted the creation of any Encumbrance nor entered into any agreement, arrangement or obligation to create or give an Encumbrance, in relation to any of the Sale Shares, the New Unicom Shares and/or the New Unicom ADSscommerce, and to complete all other relevant formalities;
(2) Other than the best share pledge created in favor of the Sellers’ knowledgeObligee, no person has claimed to be entitled to an Encumbrance in relation to any without the prior written consent of the Sale Obligee, the Obligors may not create any mortgage, pledge, charge or any other third-party encumbrance on the Shares, the New Unicom Shares and/or the New Unicom ADSs;
5.4.8 to the extent it held proxy voting authorityor assign, each of the Sellers has tendered votes in respect give away or otherwise dispose of the Shares underlying to any person (other than the Sale Netcom ADSs in favour of the resolution approving the scheme of arrangement under section 166 of the Companies Ordinance (Cap 32 of the Laws of Hong Kong) between the Company and the shareholders of the Company at the extraordinary general meeting of the Company to be held on 17 September 2008, and any adjournment thereof;
5.4.9 the execution and delivery of, and the performance by each of the Sellers of Obligee or its obligations under, this Agreement and any other documents to be executed by it pursuant to or in connection with this Agreement will not:
(a) result in a breach of any provision of the constitutional or organisational documents of each of the Sellersnominee);
(b3) result in a breach Upon occurrence of any event or give receipt of any third party a notice which likely affects the Obligors, Shares or the rights therein or change any obligation of the Obligors hereunder or the performance of any obligation of the Obligors hereunder, the Obligors will promptly notify the Obligee and take all actions and measures according to the reasonable instructions of the Obligee;
(4) Other than the Option granted to the Obligee hereunder, without the prior written consent of the Obligee, the Obligors may not grant any option or any other preemptive right to terminate or modify, or result in the creation of any Encumbrance under, any agreement, licence or other instrument or result in a breach of any order, judgment or decree of any court, governmental agency or regulatory body to which each of the Sellers or its nominee is a party or by which any of the Sellers or its nominee or any of their respective assets is bound; or
(c) result in any breach of any contractual covenants or investment management agreement to which each of the Sellers is subject;
5.4.10 each of the Sellers is not a “connected fund manager” (as defined in the Takeovers Code) or a “connected principal trader” (as defined in the Takeovers Code) of the offeror (i.e. Unicom) or the offeree company (i.e. the Company) nor a party acting in concert with the offeror and that consent from the Executive Director of the Corporate Finance Division of the Securities & Futures Commission is not required for the sale of the Sale Shares;
5.4.11 each of the Sellers is not required to obtain any other person’s consent in relation to the sale of the Sale Shares, the New Unicom Shares and the New Unicom ADSs;
5.4.12 each of the Sellers is not a connected person (as such term is defined in the Rules Governing the Listing of Securities on The Hong Kong Stock Exchange Limited) of the Company or Unicom;
5.4.13 no petition has been presented or order made and no meeting convened or resolution passed for the winding up or administration of any of the Sellers or for a provisional liquidator to be appointed in respect of any of the Sellers;
5.4.14 no distress, execution or other process has been levied on any of the assets of any of the Sellers, and no judgment creditor nor any liquidator, provisional liquidator, receiver or an administrative receiver of any of the Sellers has been appointed and there is no reason to believe that such a person might be appointed;
5.4.15 no voluntary arrangement has been proposed in respect of any of the Sellers and their creditors; and
5.4.16 each of the Sellers is not insolvent, or unable to pay its debts, and has not stopped paying its debts as they fall due, and no event analogous to any of the foregoing has occurred in or outside Hong Kongthird-party.
5.5 The Buyer represents and warrants to the Sellers that each Buyer Warranty is true, accurate and not misleading at the date of this Agreement. Immediately before Closing, the Buyer is deemed to warrant to the Sellers that each Buyer Warranty is true, accurate and not misleading by reference to the facts and circumstances on each day before Closing, and for this purpose only, any references in the Buyer Warranties to the date of this Agreement shall be construed as references to the relevant date. Unless otherwise set out in this Agreement, no other warranty is given by the Buyer.
5.6 The Buyer acknowledges that each of the Sellers is entering into this Agreement in reliance on each Buyer Warranty which has also been given as a representation and with the intention of inducing the Sellers to enter into this Agreement. The Buyer shall not invoke the Sellers’ constructive or imputed knowledge of a fact or circumstance which might make a Buyer Warranty untrue, inaccurate or misleading as a defence to a claim for breach of Clause 5.5.
5.7 The Buyer represents and warrants to the Sellers that:
5.7.1 the Buyer is a corporation duly organized and validly existing under the laws of its country of origin;
5.7.2 the Buyer has the legal right, full power and authority, and has taken all action necessary, to execute, deliver and to exercise its rights, and perform its obligations, under this Agreement and any other documents to be executed by the Buyer pursuant to or in connection with this Agreement, which when executed will constitute valid and binding obligations on the Buyer;
5.7.3 the execution and delivery of, and the performance by the Buyer of its obligations under, this Agreement and any other documents to be executed by it pursuant to or in connection with this Agreement will not:
(a) result in a breach of any provision of the constitutional or organisational documents of the Buyer; or
(b) result in a breach of or give any third party a right to terminate or modify, or result in the creation of any Encumbrance under, any agreement, licence or other instrument or result in a breach of any order, judgment or decree of any court, governmental agency or regulatory body to which the Buyer or its nominee is a party or by which any of the Buyer or its nominee or any of their respective assets is bound;
5.7.4 the Buyer is not required to obtain any other person’s consent in relation to the acquisition of the Sale Shares;
5.7.5 no petition has been presented or order made and no meeting convened or resolution passed for the winding up or administration of the Buyer or for a provisional liquidator to be appointed in respect of the Buyer;
5.7.6 no distress, execution or other process has been levied on any of the assets of the Buyer, and no judgment creditor nor any liquidator, provisional liquidator, receiver or an administrative receiver of the Buyer has been appointed and there is no reason to believe that such a person might be appointed;
5.7.7 no voluntary arrangement has been proposed in respect of the Buyer and its creditors; and
5.7.8 the Buyer is not insolvent, or unable to pay its debts, and has not stopped paying its debts as they fall due, and no event analogous to any of the foregoing has occurred in or outside Hong Kong.
5.8 Each of the Sellers undertakes to the Buyer that it shall not dispose of or enter into any agreement or arrangement to dispose of or permit the disposal of any of the Sale Shares, the disposal of which is subject to its discretion from the date of this Agreement and until the Long Stop Date or the date when this Agreement is terminated in accordance with Clause 3.3, whichever is earlier.
5.9 Each of the Sellers further undertakes to the Buyer that it shall exercise or procure to be exercised all the voting rights attaching to the Sale Listed Shares in favour of the resolution approving the Scheme and the Share Proposal at the shareholders’ meeting of the Company to be held on 17 September 2008, and any adjournment thereof.
Appears in 1 contract
Samples: Option Agreement (China Mobile Games & Entertainment Group LTD)
REPRESENTATIONS, WARRANTIES AND UNDERTAKINGS. 5.1 Each of the Sellers represents 6.1 The Company hereby represents, warrants and warrants undertakes to the Buyer that each Seller Warranty is true, accurate and not misleading at the date of this Agreement. Immediately before Closing, each of the Sellers is deemed to warrant to the Buyer that each Seller Warranty is true, accurate and not misleading by reference to the facts and circumstances on each day before Closing, and for this purpose only any references Subscriber in the Seller Warranties to the date of this Agreement shall be construed as references to the relevant date. Unless otherwise terms set out in this AgreementClause 6 and Schedule 2A as at the date hereof and that each of the Company’s Warranties is now and will at Completion be true, no other warranty is given by the Sellerscomplete and accurate in all material respects.
5.2 Each 6.2 The Subscriber hereby represents, warrants and undertakes to the Company in the terms set out in this Clause 6 and Schedule 2B as at the date hereof and that each of the Sellers Subscriber’s Warranties is now and will at Completion be true, complete and accurate in all material respects and the Subscriber hereby agrees and acknowledges that the Buyer Company is entering into this Agreement in reliance on each Seller Warranty which has also been given as a representation and with the intention of inducing the Buyer to enter into this Agreement. The Sellers shall not invoke the BuyerSubscriber’s constructive or imputed knowledge of a fact or circumstance which might make a Seller Warranty untrue, inaccurate or misleading as a defence to a claim for breach of Clause 5.1Warranties.
5.3 Each Seller Warranty is to be construed independently and (except where this Agreement provides otherwise) is not limited by a provision of this Agreement or another Warranty.
5.4 6.3 Each of the Sellers represents and warrants parties undertakes to provide the other party promptly upon request with such information as may be requested to be provided to the Buyer that:Stock Exchange and/or other regulatory authorities in connection with the subject matter of this Agreement.
5.4.1 each 6.4 Each of the Sellers is an entity duly organized parties shall notify the other party upon it becoming aware prior to Completion of any event which could reasonably be expected to cause any of the Company’s Warranties and validly existing under any of the laws Subscriber’s Warranties respectively to be incorrect, misleading or breached in any material respect or which may have any material adverse effect on any of its country of origin;assets or liabilities.
5.4.2 each 6.5 Each of the Sellers has parties hereby undertakes to indemnify and always keep indemnified the other party against any damages, losses, costs, expenses (including legal right, full power costs and authority, and has taken all action necessary, to execute, deliver and to exercise its rights, and perform its obligations, under this Agreement and any expenses) or other documents to be executed by each liabilities which it may suffer or incur as a result of the Sellers pursuant to or in connection with this Agreement, which when executed will constitute valid and binding obligations on each Seller and its asset management clients for whose account the Sale Shares are managed and who are the beneficial owners;
5.4.3 the Sale Shares are beneficially owned by the Sellers’ asset management clients in managed accounts over which the Sellers have investment discretion. To the best any breach of the Sellers’ knowledge, there is no other person who has any legal or beneficial interest in the Sale Shares;
5.4.4 each of the Sellers is validly appointed as discretionary investment manager by the beneficial owners in respect of the Sale Shares;
5.4.5 the Sale Shares are beneficially owned by the Sellers’ asset management clients; to the best of the Sellers’ knowledge, the beneficial owners of the Sale Shares have the full legal right to sell the Sale Shares and which are free from any Encumbrances;
5.4.6 upon completion of the Scheme, the Sellers’ asset management clients will be the sole beneficial owners of the New Unicom Shares Company’s Warranties and the New Unicom ADSs;
5.4.7 each of the Sellers has not created Subscriber’s Warranties respectively or permitted the creation of any Encumbrance nor entered into any agreement, arrangement or obligation to create or give an Encumbrance, in relation to any of the Sale Shares, the New Unicom Shares and/or the New Unicom ADSs, Company’s Warranties and to the best of the Sellers’ knowledge, no person has claimed to be entitled to an Encumbrance in relation to any of the Sale SharesSubscriber’s Warranties being untrue or misleading in any material respect.
6.6 If any of the parties hereto fails to perform any of its obligations in any respect (including its obligation at Completion) under this Agreement or breaches any of the terms or the Company’s Warranties and any of the Subscriber’s Warranties respectively set out in this Agreement in any material respect prior to Completion then, without prejudice to all and any other rights and remedies available at any time to the other non-defaulting party (including but not limited to the right to damages for any loss suffered by the other non-defaulting party), the New Unicom Shares and/or other non-defaulting party may, by notice either require the New Unicom ADSs;
5.4.8 other defaulting party to perform such obligations or, insofar as the same is practicable, remedy such breach, or to the extent it held proxy voting authority, each relates to the failure of the Sellers has tendered votes in respect of the Shares underlying the Sale Netcom ADSs in favour of the resolution approving the scheme of arrangement under section 166 of the Companies Ordinance (Cap 32 of the Laws of Hong Kong) between the Company and the shareholders of the Company at the extraordinary general meeting of the Company defaulting party to be held on 17 September 2008, and perform any adjournment thereof;
5.4.9 the execution and delivery of, and the performance by each of the Sellers of its obligations under, on or prior to Completion in any respect treat the defaulting party as having repudiated this Agreement and rescind the same. The rights conferred upon the other non-defaulting party by the provisions of this Clause 6.6 are additional to and do not prejudice any other documents rights the other non-defaulting party may have. Failure to exercise any of the rights herein conferred shall not constitute a waiver of any such rights.
6.7 Each of the Company’s Warranties and the Subscriber’s Warranties shall be executed separate and independent and, except as expressly provided to the contrary, shall not be limited by it pursuant reference to or inference from any other Company’s Warranty, Subscriber’s Warranty or any other term of this Agreement.
6.8 The Company’s rights in connection with this Agreement will not:
(a) result in a breach of any provision of the constitutional or organisational documents respect of each of the Sellers;
(b) result Subscriber’s Warranties, and the Subscriber’s rights in a breach respect of or give any third party a right to terminate or modify, or result in the creation of any Encumbrance under, any agreement, licence or other instrument or result in a breach of any order, judgment or decree of any court, governmental agency or regulatory body to which each of the Sellers or its nominee is a party or by which any of the Sellers or its nominee or any of their respective assets is bound; or
(c) result Company’s Warranties shall survive Completion and continue in any breach of any contractual covenants or investment management agreement to which each of the Sellers is subject;
5.4.10 each of the Sellers is not a “connected fund manager” (as defined in the Takeovers Code) or a “connected principal trader” (as defined in the Takeovers Code) of the offeror (i.e. Unicom) or the offeree company (i.e. the Company) nor a party acting in concert with the offeror full force and that consent from the Executive Director of the Corporate Finance Division of the Securities & Futures Commission is not required for the sale of the Sale Shares;
5.4.11 each of the Sellers is not required to obtain any other person’s consent in relation to the sale of the Sale Shares, the New Unicom Shares and the New Unicom ADSs;
5.4.12 each of the Sellers is not a connected person (as such term is defined in the Rules Governing the Listing of Securities on The Hong Kong Stock Exchange Limited) of the Company or Unicom;
5.4.13 no petition has been presented or order made and no meeting convened or resolution passed for the winding up or administration of any of the Sellers or for a provisional liquidator to be appointed in respect of any of the Sellers;
5.4.14 no distress, execution or other process has been levied on any of the assets of any of the Sellers, and no judgment creditor nor any liquidator, provisional liquidator, receiver or an administrative receiver of any of the Sellers has been appointed and there is no reason to believe that such a person might be appointed;
5.4.15 no voluntary arrangement has been proposed in respect of any of the Sellers and their creditors; and
5.4.16 each of the Sellers is not insolvent, or unable to pay its debts, and has not stopped paying its debts as they fall due, and no event analogous to any of the foregoing has occurred in or outside Hong Kongeffect notwithstanding Completion.
5.5 The Buyer represents and warrants to the Sellers that each Buyer Warranty is true, accurate and not misleading at the date of this Agreement. Immediately before Closing, the Buyer is deemed to warrant to the Sellers that each Buyer Warranty is true, accurate and not misleading by reference to the facts and circumstances on each day before Closing, and for this purpose only, any references in the Buyer Warranties to the date of this Agreement shall be construed as references to the relevant date. Unless otherwise set out in this Agreement, no other warranty is given by the Buyer.
5.6 The Buyer acknowledges that each of the Sellers is entering into this Agreement in reliance on each Buyer Warranty which has also been given as a representation and with the intention of inducing the Sellers to enter into this Agreement. The Buyer shall not invoke the Sellers’ constructive or imputed knowledge of a fact or circumstance which might make a Buyer Warranty untrue, inaccurate or misleading as a defence to a claim for breach of Clause 5.5.
5.7 The Buyer represents and warrants to the Sellers that:
5.7.1 the Buyer is a corporation duly organized and validly existing under the laws of its country of origin;
5.7.2 the Buyer has the legal right, full power and authority, and has taken all action necessary, to execute, deliver and to exercise its rights, and perform its obligations, under this Agreement and any other documents to be executed by the Buyer pursuant to or in connection with this Agreement, which when executed will constitute valid and binding obligations on the Buyer;
5.7.3 the execution and delivery of, and the performance by the Buyer of its obligations under, this Agreement and any other documents to be executed by it pursuant to or in connection with this Agreement will not:
(a) result in a breach of any provision of the constitutional or organisational documents of the Buyer; or
(b) result in a breach of or give any third party a right to terminate or modify, or result in the creation of any Encumbrance under, any agreement, licence or other instrument or result in a breach of any order, judgment or decree of any court, governmental agency or regulatory body to which the Buyer or its nominee is a party or by which any of the Buyer or its nominee or any of their respective assets is bound;
5.7.4 the Buyer is not required to obtain any other person’s consent in relation to the acquisition of the Sale Shares;
5.7.5 no petition has been presented or order made and no meeting convened or resolution passed for the winding up or administration of the Buyer or for a provisional liquidator to be appointed in respect of the Buyer;
5.7.6 no distress, execution or other process has been levied on any of the assets of the Buyer, and no judgment creditor nor any liquidator, provisional liquidator, receiver or an administrative receiver of the Buyer has been appointed and there is no reason to believe that such a person might be appointed;
5.7.7 no voluntary arrangement has been proposed in respect of the Buyer and its creditors; and
5.7.8 the Buyer is not insolvent, or unable to pay its debts, and has not stopped paying its debts as they fall due, and no event analogous to any of the foregoing has occurred in or outside Hong Kong.
5.8 Each of the Sellers undertakes to the Buyer that it shall not dispose of or enter into any agreement or arrangement to dispose of or permit the disposal of any of the Sale Shares, the disposal of which is subject to its discretion from the date of this Agreement and until the Long Stop Date or the date when this Agreement is terminated in accordance with Clause 3.3, whichever is earlier.
5.9 Each of the Sellers further undertakes to the Buyer that it shall exercise or procure to be exercised all the voting rights attaching to the Sale Listed Shares in favour of the resolution approving the Scheme and the Share Proposal at the shareholders’ meeting of the Company to be held on 17 September 2008, and any adjournment thereof.
Appears in 1 contract
REPRESENTATIONS, WARRANTIES AND UNDERTAKINGS. 5.1 Each 6.1 The Vendor represents, warrants and undertakes that as at the Completion Date:
(a) the cash at bank and cash on hand of the Sellers represents Group (on consolidated basis) are not less than S$1,500,000;
(b) the net asset value of the Group (on consolidated basis and warrants without taking into account any inter-Group liabilities) is not less than S$350,000;
(c) the Company’s outstanding guarantee, indemnity or guarantee or indemnity agreement for any indebtedness or liability (including but not limited to inter- Group guarantee or indemnity but other than the indemnity given pursuant to the Buyer underwriting agreements relating to the public offer and/or placing of shares of the Company as disclosed in the prospectus of the Company dated 29 April 2020) is not more than S$580,000; and
(d) the liabilities (whether actual or contingent) of the Group not exceed S$12,000,000.
6.2 The Vendor represents, warrants and undertakes to the Purchaser that each Seller Warranty save as Disclosed, the Vendor’s Warranties set out in Schedule 5 are true and accurate in all material respects on the execution of this Agreement and as at Completion. The Vendor’s Warranties shall continue to have full force and effect notwithstanding Completion.
6.3 The Vendor acknowledges that the Purchaser in entering into this Agreement is truerelying on the Vendor’s Warranties.
6.4 Subject to Clause 6.9, accurate and not misleading at the date Purchaser is entitled to institute claims and/or Warranties Claims against the Vendor upon occurrence of any breach of this Agreement. Immediately before Closing.
6.5 Save as Disclosed, each any due diligence and investigation made by the Purchaser or its agents shall not prejudice the right of the Sellers Purchaser to institute claims and/or Warranties Claims or reduce the amount of damages it is entitled. The Vendor shall not raise the defence that the Purchaser shall have knowledge or has knowledge of the circumstances lending to the claims and/or Warranties Claims.
6.6 In the event the Vendor’s Warranties include the expression “so far as the Vendor is aware” or any similar expressions, such Vendor’s Warranties shall be deemed to warrant be made by the Vendor to its knowledge, information and belief having made all reasonable enquiries.
6.7 Subject to Clause 6.9, without prejudice to the Buyer that each Seller Warranty is trueright of the Purchaser and the Company to claim damages on any other basis, accurate the Vendor shall indemnify the Purchaser and the Company against any and all claims, losses, liabilities, costs, damages, expenses, fines or penalties incurred or suffered by the Purchaser and/ or the Company (as and when applicable) as a result of or in connection with:
(i) (directly or indirectly) a breach of any of the Vendor’s Warranties;
(ii) investigation or inquiry involving the Company by competent governmental or regulatory authorities in progress as of the Completion Date or arising from circumstances occurred on or before the Completion Date; and
(iii) any actual violation or non-compliance by any of the Group Company on or before the Completion Date with any laws, regulations or administrative orders or measures (including but not misleading by reference limited to the facts GEM Listing Rules and circumstances on each day before Closingthe securities law of Hong Kong) in Hong Kong, Singapore and the PRC or in any other jurisdiction.
6.8 The Vendor agrees to waive the right to claim against any Group Company or any of its directors or employees for completeness and accuracy of information provided, false representations made or inaccuracy of any information provided to the parties to this Agreement or their representatives or consultants regarding this Agreement.
6.9 The total liability of the Vendor in respect of any claim by the Purchaser under this Agreement shall be limited as provided in this Clause 6.9:
(i) the Vendor shall be under no liability in respect of any claim by the Purchaser unless the Vendor shall have received written notice from the Purchaser prior to the date falling 36 months after the Completion Date in respect of any such claim giving full details of such claim, and any such claim shall (if not previously satisfied, settled or withdrawn) be deemed to have been waived at the expiration of the said 36th-month period;
(ii) the Vendor shall have no liability in respect of any individual matter unless the liability of the Vendor in respect thereof shall exceed an amount of HK$100,000; and
(iii) the aggregate amount of liability of the Vendor shall not exceed the amount of consideration received by it pursuant to this Agreement.
6.10 The Vendor shall be liable for this purpose only a claim for breach of any references in of the Seller Vendor’s Warranties to the extent that the claim would not have arisen (a) after the date of this Agreement shall be construed as references to but for the relevant date. Unless otherwise set out in this Agreement, no other warranty is given by enactment of any applicable laws which come into force after the Sellers.
5.2 Each of the Sellers acknowledges that the Buyer is entering into this Agreement in reliance on each Seller Warranty Completion Date and which has also been given as a representation and with the intention of inducing the Buyer to enter into this Agreement. The Sellers shall not invoke the Buyer’s constructive retrospective effect; or imputed knowledge of a fact or circumstance which might make a Seller Warranty untrue, inaccurate or misleading as a defence to a claim for breach of Clause 5.1.
5.3 Each Seller Warranty is to be construed independently and (except where this Agreement provides otherwise) is not limited by a provision of this Agreement or another Warranty.
5.4 Each of the Sellers represents and warrants to the Buyer that:
5.4.1 each of the Sellers is an entity duly organized and validly existing under the laws of its country of origin;
5.4.2 each of the Sellers has the legal right, full power and authority, and has taken all action necessary, to execute, deliver and to exercise its rights, and perform its obligations, under this Agreement and any other documents to be executed by each of the Sellers pursuant to or in connection with this Agreement, which when executed will constitute valid and binding obligations on each Seller and its asset management clients for whose account the Sale Shares are managed and who are the beneficial owners;
5.4.3 the Sale Shares are beneficially owned by the Sellers’ asset management clients in managed accounts over which the Sellers have investment discretion. To the best of the Sellers’ knowledge, there is no other person who has any legal or beneficial interest in the Sale Shares;
5.4.4 each of the Sellers is validly appointed as discretionary investment manager by the beneficial owners in respect of the Sale Shares;
5.4.5 the Sale Shares are beneficially owned by the Sellers’ asset management clients; to the best of the Sellers’ knowledge, the beneficial owners of the Sale Shares have the full legal right to sell the Sale Shares and which are free from any Encumbrances;
5.4.6 upon completion of the Scheme, the Sellers’ asset management clients will be the sole beneficial owners of the New Unicom Shares and the New Unicom ADSs;
5.4.7 each of the Sellers has not created or permitted the creation of any Encumbrance nor entered into any agreement, arrangement or obligation to create or give an Encumbrance, in relation to any of the Sale Shares, the New Unicom Shares and/or the New Unicom ADSs, and to the best of the Sellers’ knowledge, no person has claimed to be entitled to an Encumbrance in relation to any of the Sale Shares, the New Unicom Shares and/or the New Unicom ADSs;
5.4.8 to the extent it held proxy voting authority, each of the Sellers has tendered votes in respect of the Shares underlying the Sale Netcom ADSs in favour of the resolution approving the scheme of arrangement under section 166 of the Companies Ordinance (Cap 32 of the Laws of Hong Kong) between the Company and the shareholders of the Company at the extraordinary general meeting of the Company to be held on 17 September 2008, and any adjournment thereof;
5.4.9 the execution and delivery of, and the performance by each of the Sellers of its obligations under, this Agreement and any other documents to be executed by it pursuant to or in connection with this Agreement will not:
(a) result in a breach of any provision of the constitutional or organisational documents of each of the Sellers;
(b) result in a breach of or give any third party a right to terminate or modify, or result change in the creation interpretation of any Encumbrance under, any agreement, licence or other instrument or result in a breach of any order, judgment or decree of any court, governmental agency or regulatory body to which each of the Sellers or its nominee is a party or by which any of the Sellers or its nominee or any of their respective assets is bound; or
(c) result in any breach of any contractual covenants or investment management agreement to which each of the Sellers is subject;
5.4.10 each of the Sellers is not a “connected fund manager” (as defined in the Takeovers Code) or a “connected principal trader” (as defined in the Takeovers Code) of the offeror (i.e. Unicom) or the offeree company (i.e. the Company) nor a party acting in concert with the offeror and that consent from the Executive Director of the Corporate Finance Division of the Securities & Futures Commission is not required for the sale of the Sale Shares;
5.4.11 each of the Sellers is not required to obtain any other person’s consent in relation to the sale of the Sale Shares, the New Unicom Shares and the New Unicom ADSs;
5.4.12 each of the Sellers is not a connected person (as such term is defined in the Rules Governing the Listing of Securities on The Hong Kong Stock Exchange Limited) of the Company or Unicom;
5.4.13 no petition has been presented or order made and no meeting convened or resolution passed for the winding up or administration of any of the Sellers or for a provisional liquidator to be appointed in respect of any of the Sellers;
5.4.14 no distress, execution or other process has been levied on any of the assets of any of the Sellers, and no judgment creditor nor any liquidator, provisional liquidator, receiver or an administrative receiver of any of the Sellers has been appointed and there is no reason to believe that such a person might be appointed;
5.4.15 no voluntary arrangement has been proposed in respect of any of the Sellers and their creditors; and
5.4.16 each of the Sellers is not insolvent, or unable to pay its debts, and has not stopped paying its debts as they fall due, and no event analogous to any of the foregoing has occurred in or outside Hong Kong.
5.5 The Buyer represents and warrants to the Sellers that each Buyer Warranty is true, accurate and not misleading at the date of this Agreement. Immediately before Closing, the Buyer is deemed to warrant to the Sellers that each Buyer Warranty is true, accurate and not misleading by reference to the facts and circumstances on each day before Closing, and for this purpose only, any references in the Buyer Warranties to applicable laws after the date of this Agreement shall be construed as references to or a change by the relevant date. Unless otherwise set out in this Agreement, no other warranty is given by the Buyer.
5.6 The Buyer acknowledges that each of the Sellers is entering into this Agreement in reliance on each Buyer Warranty which has also been given as a representation and with the intention of inducing the Sellers to enter into this Agreement. The Buyer shall not invoke the Sellers’ constructive or imputed knowledge of a fact or circumstance which might make a Buyer Warranty untrue, inaccurate or misleading as a defence to a claim for breach of Clause 5.5.
5.7 The Buyer represents and warrants to the Sellers that:
5.7.1 the Buyer is a corporation duly organized and validly existing under the laws of its country of origin;
5.7.2 the Buyer has the legal right, full power and authority, and has taken all action necessary, to execute, deliver and to exercise its rights, and perform its obligations, under this Agreement and any other documents to be executed by the Buyer pursuant to or in connection with this Agreement, which when executed will constitute valid and binding obligations on the Buyer;
5.7.3 the execution and delivery of, and the performance by the Buyer of its obligations under, this Agreement and any other documents to be executed by it pursuant to or in connection with this Agreement will not:
(a) result in a breach of any provision of the constitutional or organisational documents of the Buyer; or
(b) result in a breach of or give any third party a right to terminate or modify, or result authority in the creation method of any Encumbrance under, any agreement, licence applying or other instrument or result in a breach calculating the rate of any order, judgment or decree of any court, governmental agency or regulatory body to which tax after the Buyer or its nominee is a party or by which any of the Buyer or its nominee or any of their respective assets is bound;
5.7.4 the Buyer is not required to obtain any other person’s consent in relation to the acquisition of the Sale Shares;
5.7.5 no petition has been presented or order made and no meeting convened or resolution passed for the winding up or administration of the Buyer or for a provisional liquidator to be appointed in respect of the Buyer;
5.7.6 no distress, execution or other process has been levied on any of the assets of the Buyer, and no judgment creditor nor any liquidator, provisional liquidator, receiver or an administrative receiver of the Buyer has been appointed and there is no reason to believe that such a person might be appointed;
5.7.7 no voluntary arrangement has been proposed in respect of the Buyer and its creditors; and
5.7.8 the Buyer is not insolvent, or unable to pay its debts, and has not stopped paying its debts as they fall due, and no event analogous to any of the foregoing has occurred in or outside Hong KongCompletion Date.
5.8 Each of the Sellers undertakes to the Buyer that it shall not dispose of or enter into any agreement or arrangement to dispose of or permit the disposal of any of the Sale Shares, the disposal of which is subject to its discretion from the date of this Agreement and until the Long Stop Date or the date when this Agreement is terminated in accordance with Clause 3.3, whichever is earlier.
5.9 Each of the Sellers further undertakes to the Buyer that it shall exercise or procure to be exercised all the voting rights attaching to the Sale Listed Shares in favour of the resolution approving the Scheme and the Share Proposal at the shareholders’ meeting of the Company to be held on 17 September 2008, and any adjournment thereof.
Appears in 1 contract
REPRESENTATIONS, WARRANTIES AND UNDERTAKINGS. 5.1 Each of the Sellers 6.1 The Vendor represents and warrants to the Buyer Purchaser that each Seller Warranty is true, accurate and not misleading at the date of this Agreement. Immediately before Closing, each of the Sellers is deemed to warrant to the Buyer that each Seller Warranty is true, accurate and not misleading by reference to the facts and circumstances on each day before Closing, and for this purpose only any references in the Seller Warranties to the date of this Agreement shall be construed as references to the relevant date. Unless otherwise set out in this Agreement, no other warranty is given by the Sellers.
5.2 Each of the Sellers acknowledges that the Buyer is entering into this Agreement in reliance on each Seller Warranty which has also been given as a representation and with the intention of inducing the Buyer to enter into this Agreement. The Sellers shall not invoke the Buyer’s constructive or imputed knowledge of a fact or circumstance which might make a Seller Warranty untrue, inaccurate or misleading as a defence to a claim for breach of Clause 5.1.
5.3 Each Seller Warranty is to be construed independently and (except where this Agreement provides otherwise) is not limited by a provision of this Agreement or another Warranty.
5.4 Each of the Sellers represents and warrants to the Buyer that:
5.4.1 each of the Sellers is an entity duly organized and validly existing under the laws of its country of origin;
5.4.2 each of the Sellers it has the legal right, full power power, legal capacity and authority, and has taken obtained all action necessarynecessary approvals, to execute, deliver and to exercise its rights, and perform its obligations, under enter into this Agreement and any other documents to be executed by each of the Sellers pursuant to or in connection with this Agreement, which when executed will constitute valid and binding obligations on each Seller and its asset management clients for whose account the Sale Shares are managed and who are the beneficial owners;
5.4.3 the Sale Shares are beneficially owned by the Sellers’ asset management clients in managed accounts over which the Sellers have investment discretion. To the best of the Sellers’ knowledge, there is no other person who has any legal or beneficial interest in the Sale Shares;
5.4.4 each of the Sellers is validly appointed as discretionary investment manager by the beneficial owners in respect of the Sale Shares;
5.4.5 the Sale Shares are beneficially owned by the Sellers’ asset management clients; to the best of the Sellers’ knowledge, the beneficial owners of the Sale Shares have the full legal right to sell the Sale Shares and which are free from any Encumbrances;
5.4.6 upon completion of the Scheme, the Sellers’ asset management clients will be the sole beneficial owners of the New Unicom Shares and the New Unicom ADSs;
5.4.7 each of the Sellers has not created or permitted the creation of any Encumbrance nor entered into any agreement, arrangement or obligation to create or give an Encumbrance, in relation to any of the Sale Shares, the New Unicom Shares and/or the New Unicom ADSs, and to the best of the Sellers’ knowledge, no person has claimed to be entitled to an Encumbrance in relation to any of the Sale Shares, the New Unicom Shares and/or the New Unicom ADSs;
5.4.8 to the extent it held proxy voting authority, each of the Sellers has tendered votes in respect of the Shares underlying the Sale Netcom ADSs in favour of the resolution approving the scheme of arrangement under section 166 of the Companies Ordinance (Cap 32 of the Laws of Hong Kong) between the Company and the shareholders of the Company at the extraordinary general meeting of the Company to be held on 17 September 2008, and any adjournment thereof;
5.4.9 the execution and delivery of, and the performance by each of the Sellers of its obligations under, this Agreement and any other documents to be executed by it such pursuant to or in connection with this Agreement will not:
(a) result in a breach of any provision of the constitutional or organisational documents of each of the Sellers;
(b) result in a breach of or give any third party a right to terminate or modify, or result in the creation of any Encumbrance under, any agreement, licence or other instrument or result in a breach of any order, judgment or decree of any court, governmental agency or regulatory body to which each of the Sellers or its nominee is a party or by which any of the Sellers or its nominee or any of their respective assets is bound; or
(c) result in any breach of any contractual covenants or investment management agreement to which each of the Sellers is subject;
5.4.10 each of the Sellers is not a “connected fund manager” (as defined in the Takeovers Code) or a “connected principal trader” (as defined in the Takeovers Code) of the offeror (i.e. Unicom) or the offeree company (i.e. the Company) nor a party acting in concert with the offeror and that consent from the Executive Director of the Corporate Finance Division of the Securities & Futures Commission is not required for the sale of the Sale Shares;
5.4.11 each of the Sellers is not required to obtain any other person’s consent in relation to the sale of the Sale Shares, the New Unicom Shares and the New Unicom ADSs;
5.4.12 each of the Sellers is not a connected person (as such term is defined in the Rules Governing the Listing of Securities on The Hong Kong Stock Exchange Limited) of the Company or Unicom;
5.4.13 no petition has been presented or order made and no meeting convened or resolution passed for the winding up or administration of any of the Sellers or for a provisional liquidator to be appointed in respect of any of the Sellers;
5.4.14 no distress, execution or other process has been levied on any of the assets of any of the Sellers, and no judgment creditor nor any liquidator, provisional liquidator, receiver or an administrative receiver of any of the Sellers has been appointed and there is no reason to believe that such a person might be appointed;
5.4.15 no voluntary arrangement has been proposed in respect of any of the Sellers and their creditors; and
5.4.16 each of the Sellers is not insolvent, or unable to pay its debts, and has not stopped paying its debts as they fall due, and no event analogous to any of the foregoing has occurred in or outside Hong Kong.
5.5 The Buyer represents and warrants to the Sellers that each Buyer Warranty is true, accurate and not misleading at the date of this Agreement. Immediately before Closing, the Buyer is deemed to warrant to the Sellers that each Buyer Warranty is true, accurate and not misleading by reference to the facts and circumstances on each day before Closing, and for this purpose only, any references in the Buyer Warranties to the date of this Agreement shall be construed as references to the relevant date. Unless otherwise set out in this Agreement, no other warranty is given by the Buyer.
5.6 The Buyer acknowledges that each of the Sellers is entering into this Agreement in reliance on each Buyer Warranty which has also been given as a representation and with the intention of inducing the Sellers to enter into this Agreement. The Buyer shall not invoke the Sellers’ constructive or imputed knowledge of a fact or circumstance which might make a Buyer Warranty untrue, inaccurate or misleading as a defence to a claim for breach of Clause 5.5.
5.7 The Buyer represents and warrants to the Sellers that:
5.7.1 the Buyer is a corporation duly organized and validly existing under the laws of its country of origin;
5.7.2 the Buyer has the legal right, full power and authority, and has taken all action necessary, to execute, deliver and to exercise its rights, rights and perform its obligationsobligations hereunder, under and this Agreement and any other the said documents to be executed by the Buyer pursuant to or in connection with this Agreementwhen signed shall constitute legal, which when executed will constitute valid and binding obligations on the Buyer;Vendor and enforceable in accordance with their terms.
5.7.3 6.2 The Vendor represents and warrants to the execution Purchaser that upon Completion, the Sale Shares sold by the Vendor shall be fully paid up and delivery ofare legally and beneficially owned by it, and it has the performance power, authority, legal capacity and has obtained authorisation to sell and transfer the Sale Shares to be sold by it, and that the Buyer Sale Shares to be sold by it shall be free of its obligations underall Encumbrances with all rights attached thereto on the Completion Date.
6.3 If, after the signing of this Agreement and before Completion, any event shall occur or matter shall arise which results or may result in any of the Warranties of the Vendor being untrue, misleading or inaccurate in any respect, the Vendor shall immediately notify the Purchaser in writing thereof prior to Completion.
6.4 The total aggregate liability of the Vendor for any claim or claims of breaches under this Agreement (excluding other documents legal and other costs and expenses) shall not in any event exceed an amount equals to the Total Consideration.
6.5 No claim may be executed brought against the Vendor in respect of a breach of any of the Warranties after expiration of a period of 36 months from the Completion Date (“Warranty Expiry Date”) and the Vendor shall not be liable in respect of a breach of any of the Warranties unless it shall have received written notice from the Purchaser prior to the Warranty Expiry Date giving reasonable details of the relevant claim and any such claim shall (if not previously satisfied, settled or withdrawn) be deemed to have been waived or withdrawn at the expiry of a period of six months after the Warranty Expiry Date unless proceedings in respect thereof shall have already been commenced against the Vendor.
6.6 The Purchaser’s rights in respect of each of the Warranties shall survive Completion and continue in full force and effect notwithstanding Completion.
6.7 The Purchaser shall be entitled to claim both before and after Completion that any of the Warranties is or was untrue or misleading or has or had been breached even if the Purchaser discovered or could have discovered on or before Completion that the Warranty in question was untrue, misleading or had been breached and Completion shall not in any way constitute a waiver of any of the Purchaser’s rights.
6.8 The Vendor hereby acknowledges that the Purchaser has relied upon a valuation report dated 26 July 2021 for determining the Total Consideration and which valuation report contains assumptions and other information supplied by the Vendor. The Vendor hereby warrants that all the assumptions in the valuation report and all other matters supplied by it pursuant for the purpose of compiling the valuation report will remain true and valid for a period of 24 months after Completion.
6.9 The Vendor hereby undertakes to indemnify and keep indemnified the Purchaser from and against all reasonable claims, liabilities, losses, damages, costs and expenses which the Purchaser may suffer or incur or which may be made against the Vendor either before or after the commencement of and arising out of, or in respect of, any action in connection with this Agreement will notwith:
(a) result in a the breach of any of the Warranties or any provision of this Agreement by the constitutional or organisational documents of the Buyer; orVendor;
(b) result in a breach of or give any third party a right to terminate or modify, or result in the creation settlement of any Encumbrance under, any agreement, licence or other instrument or result in a breach of any order, judgment or decree of any court, governmental agency or regulatory body to which the Buyer or its nominee is a party or by which claim that any of the Buyer Warranties is untrue or its nominee misleading or has been breached in any aspects;
(c) any legal proceedings taken by the Purchaser claiming that any of their respective assets the Warranties is bound;untrue or misleading or has been breached and in which judgment is given for the Purchaser; and
5.7.4 (d) the Buyer is not required to obtain enforcement of any other person’s consent such settlement or judgment.
6.10 No claim shall lie against the Vendor (under or in relation to the acquisition Warranties or any provision of this Agreement) to the Sale Shares;
5.7.5 no petition has been presented or order made and no meeting convened or resolution passed for the winding up or administration of the Buyer or for a provisional liquidator to be appointed in respect of the Buyer;
5.7.6 no distress, execution or other process has been levied on any of the assets of the Buyer, and no judgment creditor nor any liquidator, provisional liquidator, receiver or an administrative receiver of the Buyer has been appointed and there is no reason to believe extent that such a person might be appointed;claim is attributable to any voluntary act, omission, transaction, or arrangement carried out directly by the Purchaser or on its behalf or by persons deriving title from the Purchaser after the Completion.
5.7.7 no voluntary arrangement has been proposed 6.11 The Vendor represents and warrants that, in respect of the Buyer and its creditors; and
5.7.8 the Buyer entering into this Agreement it is not insolvent, in breach or unable to pay its debtsviolation of, and has not stopped paying its debts as they fall dueengaged in any acts, and no event analogous to any of the foregoing has occurred in omissions or outside Hong Kong.
5.8 Each of the Sellers undertakes to the Buyer that conduct which may cause it shall not dispose of or enter into any agreement or arrangement to dispose of or permit the disposal of any of the Sale Shares, the disposal of which is subject to its discretion from the date of this Agreement and until the Long Stop Date or the date when this Agreement is terminated in accordance with Clause 3.3, whichever is earlier.
5.9 Each of the Sellers further undertakes to the Buyer that it shall exercise or procure Purchaser to be exercised all the voting rights attaching to the Sale Listed Shares in favour of the resolution approving the Scheme and the Share Proposal at the shareholders’ meeting of the Company to be held on 17 September 2008breach or violation of, and any adjournment thereofApplicable Laws.
Appears in 1 contract
Samples: Sale and Purchase Agreement (China Natural Resources Inc)
REPRESENTATIONS, WARRANTIES AND UNDERTAKINGS. 5.1 Each of the Sellers The Vendor hereby represents and warrants to and undertakes with the Buyer Purchaser that save as disclosed herein each Seller Warranty is true, accurate and not misleading of the Warranties set out in Schedule 2 as at the date hereof and shall be for all times up to and including the Completion Date are true and correct in all respects.
5.2 The Vendor shall on demand indemnify the Purchaser against any loss, damage, cost or expense suffered or incurred by the Purchaser or the Companies arising directly or indirectly from the breach of any of the Warranties or any other terms of this Agreement. Immediately before Closing, each of the Sellers is deemed to warrant to the Buyer that each Seller Warranty is true, accurate and not misleading by reference to the facts and circumstances on each day before Closing, and for this purpose only any references in the Seller Warranties to the date of this Agreement shall be construed as references to the relevant date. Unless otherwise set out in this Agreement, no other warranty is given by the Sellers.
5.2 Each of the Sellers (a) The Vendor acknowledges that the Buyer is entering Purchaser has entered into this Agreement in reliance on each Seller Warranty which has also been given as upon the Vendor’s Warranties.
(b) Each of the warranties shall constitute a representation separate and with independent warranty, and the intention Purchaser shall have a separate claim and right of inducing the Buyer to enter into this Agreement. The Sellers shall not invoke the Buyer’s constructive or imputed knowledge action in respect of a fact or circumstance which might make a Seller Warranty untrue, inaccurate or misleading as a defence to a claim for every breach of Clause 5.1any of the Warranties.
5.3 Each Seller Warranty is to be construed independently and (except where this Agreement provides otherwisec) is not limited by a provision of this Agreement or another WarrantyThe Vendor’s Warranties shall survive Completion.
5.4 Each The Vendor agrees that the Purchaser, prior to Completion, shall have the right to appoint certain employees to the Companies to participate in the business operation, exact arrangement to be agreed.
5.5 The Vendor agrees to deliver to the Purchaser necessary documents as followed, including, but not limited to, corporate seals of the Sellers represents and warrants to the Buyer that:
5.4.1 each Companies, original Certificates of the Sellers is an entity duly organized and validly existing under the laws of its country of origin;
5.4.2 each of the Sellers has the legal right, full power and authority, and has taken all action necessary, to execute, deliver and to exercise its rights, and perform its obligations, under this Agreement and any other documents to be executed by each of the Sellers pursuant to or in connection with this Agreement, which when executed will constitute valid and binding obligations on each Seller and its asset management clients for whose account the Sale Shares are managed and who are the beneficial owners;
5.4.3 the Sale Shares are beneficially owned by the Sellers’ asset management clients in managed accounts over which the Sellers have investment discretion. To the best of the Sellers’ knowledge, there is no other person who has any legal or beneficial interest in the Sale Shares;
5.4.4 each of the Sellers is validly appointed as discretionary investment manager by the beneficial owners in respect of the Sale Shares;
5.4.5 the Sale Shares are beneficially owned by the Sellers’ asset management clients; to the best of the Sellers’ knowledge, the beneficial owners of the Sale Shares have the full legal right to sell the Sale Shares and which are free from any Encumbrances;
5.4.6 upon completion of the Scheme, the Sellers’ asset management clients will be the sole beneficial owners of the New Unicom Shares and the New Unicom ADSs;
5.4.7 each of the Sellers has not created or permitted the creation of any Encumbrance nor entered into any agreement, arrangement or obligation to create or give an Encumbrance, in relation to any of the Sale Shares, the New Unicom Shares and/or the New Unicom ADSs, and to the best of the Sellers’ knowledge, no person has claimed to be entitled to an Encumbrance in relation to any of the Sale Shares, the New Unicom Shares and/or the New Unicom ADSs;
5.4.8 to the extent it held proxy voting authority, each of the Sellers has tendered votes in respect of the Shares underlying the Sale Netcom ADSs in favour of the resolution approving the scheme of arrangement under section 166 of the Companies Ordinance (Cap 32 of the Laws of Hong Kong) between the Company and the shareholders of the Company at the extraordinary general meeting of the Company to be held on 17 September 2008, and any adjournment thereof;
5.4.9 the execution and delivery of, and the performance by each of the Sellers of its obligations under, this Agreement and any other documents to be executed by it pursuant to or in connection with this Agreement will not:
(a) result in a breach of any provision of the constitutional or organisational documents Business of each of the Sellers;
(b) result in a breach Companies, original Memorandum and Articles of or give any third party a right to terminate or modify, or result in the creation Association of any Encumbrance under, any agreement, licence or other instrument or result in a breach of any order, judgment or decree of any court, governmental agency or regulatory body to which each of the Sellers or its nominee is a party or by which any Companies and Audit Reports of the Sellers or its nominee or any of their respective assets is bound; or
(c) result in any breach of any contractual covenants or investment management agreement to which each of the Sellers is subject;
5.4.10 each of the Sellers is not a “connected fund manager” (as defined in the Takeovers Code) or a “connected principal trader” (as defined in the Takeovers Code) of the offeror (i.e. Unicom) or the offeree company (i.e. the Company) nor a party acting in concert with the offeror and that consent from the Executive Director of the Corporate Finance Division of the Securities & Futures Commission is not required Companies for the sale financial year as of the Sale SharesDecember 31, 2021;
5.4.11 each of the Sellers is not required to obtain any other person’s consent in relation to the sale of the Sale Shares, the New Unicom Shares and the New Unicom ADSs;
5.4.12 each of the Sellers is not a connected person (as such term is defined in the Rules Governing the Listing of Securities on The Hong Kong Stock Exchange Limited) of the Company or Unicom;
5.4.13 no petition has been presented or order made and no meeting convened or resolution passed for the winding up or administration of any of the Sellers or for a provisional liquidator to be appointed in respect of any of the Sellers;
5.4.14 no distress, execution or other process has been levied on any of the assets of any of the Sellers, and no judgment creditor nor any liquidator, provisional liquidator, receiver or an administrative receiver of any of the Sellers has been appointed and there is no reason to believe that such a person might be appointed;
5.4.15 no voluntary arrangement has been proposed in respect of any of the Sellers and their creditors; and
5.4.16 each of the Sellers is not insolvent, or unable to pay its debts, and has not stopped paying its debts as they fall due, and no event analogous to any of the foregoing has occurred in or outside Hong Kong.
5.5 The Buyer represents and warrants to the Sellers that each Buyer Warranty is true, accurate and not misleading at the date of this Agreement. Immediately before Closing, the Buyer is deemed to warrant to the Sellers that each Buyer Warranty is true, accurate and not misleading by reference to the facts and circumstances on each day before Closing, and for this purpose only, any references in the Buyer Warranties to the date of this Agreement shall be construed as references to the relevant date. Unless otherwise set out in this Agreement, no other warranty is given by the Buyer.
5.6 The Buyer acknowledges Vendor and the Purchaser agree that each of in the Sellers is entering into this Agreement in reliance on each Buyer Warranty which has also been given as a representation and with event that the intention of inducing Companies needs to raise further working capital after Completion, the Sellers to enter into this Agreement. The Buyer shall not invoke the Sellers’ constructive or imputed knowledge of a fact or circumstance which might make a Buyer Warranty untruePurchaser, inaccurate or misleading as a defence subject to a claim for breach mutually agreed business plan, agrees to provide further working capital to the Companies in the form of Clause 5.5shareholder’s loan, which shall be interest-bearing at a rate to be determined.
5.7 The Buyer represents and warrants to the Sellers that:
5.7.1 the Buyer is a corporation duly organized and validly existing under the laws of its country of origin;
5.7.2 the Buyer has the legal right, full power and authority, and has taken all action necessary, to execute, deliver and to exercise its rights, and perform its obligations, under this Agreement and any other documents to be executed by the Buyer pursuant to or in connection with this Agreement, which when executed will constitute valid and binding obligations on the Buyer;
5.7.3 the execution and delivery of, Vendor and the performance by Purchaser agree that the Buyer of its obligations under, this Agreement and any other documents to be executed by it pursuant to or in connection with this Agreement will not:
(a) result in a breach of any provision of Purchaser shall have the constitutional or organisational documents of the Buyer; or
(b) result in a breach of or give any third party a right to terminate add more warranty clauses (by way of supplemental agreement or modify, or result in side letter) after completing the creation of any Encumbrance under, any agreement, licence or other instrument or result in a breach of any order, judgment or decree of any court, governmental agency or regulatory body to which the Buyer or its nominee is a party or by which any of the Buyer or its nominee or any of their respective assets is bound;
5.7.4 the Buyer is not required to obtain any other person’s consent in relation to the acquisition of the Sale Shares;
5.7.5 no petition has been presented or order made and no meeting convened or resolution passed for the winding up or administration of the Buyer or for a provisional liquidator to be appointed in respect of the Buyer;
5.7.6 no distress, execution or other process has been levied on any of the assets of the Buyer, and no judgment creditor nor any liquidator, provisional liquidator, receiver or an administrative receiver of the Buyer has been appointed and there is no reason to believe that such a person might be appointed;
5.7.7 no voluntary arrangement has been proposed in respect of the Buyer and its creditors; and
5.7.8 the Buyer is not insolvent, or unable to pay its debts, and has not stopped paying its debts as they fall due, and no event analogous to any of the foregoing has occurred in or outside Hong Kongdue diligence review before Completion.
5.8 Each of The Vendor shall provide the Sellers undertakes Kewei Intelligent Cloud Platform for the Purchaser’s use for free, however, the Purchaser shall bear its own cost related to the Buyer that it shall not dispose of or enter into any agreement or arrangement to dispose of or permit the disposal of any of the Sale Shares, the disposal of which is subject to its discretion from the date of this Agreement and until the Long Stop Date or the date when this Agreement is terminated in accordance with Clause 3.3, whichever is earlier.
5.9 Each of the Sellers further undertakes to the Buyer that it shall exercise or procure to be exercised all the voting rights attaching to the Sale Listed Shares in favour of the resolution approving the Scheme and the Share Proposal at the shareholders’ meeting of the Company to be held on 17 September 2008server, and any adjournment thereofboth the Vendor and Purchaser reserve the rights to further negotiate and adjust this provision from time to time.
Appears in 1 contract
Samples: Sale and Purchase Agreement (Guardforce AI Co., Ltd.)
REPRESENTATIONS, WARRANTIES AND UNDERTAKINGS. 5.1 Each of the Sellers 4.1 The Covenantor hereby represents and warrants to the Buyer Offeror that each Seller Warranty of the statements, representations and warranties set forth in Schedule 2 (the “Warranties”) is true, accurate and complete in all material respects and is not misleading in any material respect as at the date of this Agreement. Immediately before ClosingUndertaking, and will be true and accurate in all material respects and not misleading in any material respect as at each of the Sellers is deemed to warrant to Despatch Date, the Buyer that each Seller Warranty is trueUnconditional Date and the Settlement Date, accurate and not misleading by reference to the facts and circumstances on each day before Closing, and for this purpose only any references in the Seller Warranties to the date of this Agreement shall be construed as references to the relevant if they had been repeated at such date. Unless otherwise set out in this Agreement, no other warranty is given by the Sellers.
5.2 Each of the Sellers 4.2 The Covenantor acknowledges that the Buyer is and agrees that, in entering into this Agreement Undertaking, the Offeror has relied on the Warranties.
4.3 The Covenantor shall notify the Offeror in reliance on each Seller Warranty which has also been given as a representation and with writing, setting out in full details of the intention of inducing the Buyer to enter following, if after entering into this Agreement. The Sellers shall not invoke Undertaking but prior to the Buyer’s constructive or imputed knowledge Settlement Date: (a) it becomes aware that any of a fact or circumstance which might make a Seller Warranty the Warranties was untrue, inaccurate or misleading in any material respect as a defence to a claim for breach at the date of Clause 5.1this Undertaking; or (b) it becomes aware of any matter which arises or event that occurs which results or will result in any of the Warranties being untrue, inaccurate or misleading in any material respect as at the Despatch Date, the Unconditional Date or the Settlement Date.
5.3 Each Seller Warranty is to be construed independently and (except where this Agreement provides otherwise) is not limited by a provision of this Agreement or another Warranty.
5.4 4.4 Each of the Sellers represents Warranties is separate and warrants independent and, except where expressly provided to the Buyer that:
5.4.1 each of the Sellers is an entity duly organized and validly existing under the laws of its country of origin;
5.4.2 each of the Sellers has the legal rightcontrary in this Undertaking, full power and authority, and has taken all action necessary, shall not be limited by reference to execute, deliver and to exercise its rights, and perform its obligations, under this Agreement and any other Warranty or by anything in, or referred to in, this Undertaking.
4.5 The Covenantor irrevocably and unconditionally acknowledges, agrees and undertakes that it will do all such acts and things (including, amongst others, provision of such information in its possession) and execute all such documents to be executed by each of the Sellers pursuant give effect to or its obligations and undertakings contained in connection with this Agreement, which when executed will constitute valid and binding obligations on each Seller and its asset management clients for whose account the Sale Shares are managed and who are the beneficial owners;Undertaking.
5.4.3 the Sale Shares are beneficially owned by the Sellers’ asset management clients in managed accounts over which the Sellers have investment discretion. To the best of the Sellers’ knowledge, 4.6 The Covenantor acknowledges that there is no other person who has any legal or beneficial interest in the Sale Shares;
5.4.4 each of the Sellers is validly appointed as discretionary investment manager by the beneficial owners in respect assurance that completion of the Sale Shares;
5.4.5 the Sale Shares are beneficially owned by the Sellers’ asset management clients; to the best of the Sellers’ knowledge, the beneficial owners of the Sale Shares have the full legal right to sell the Sale Shares and which are free from any Encumbrances;
5.4.6 upon completion of the Scheme, the Sellers’ asset management clients will be the sole beneficial owners of the New Unicom Shares and the New Unicom ADSs;
5.4.7 each of the Sellers has not created or permitted the creation of any Encumbrance nor entered into any agreement, arrangement or obligation to create or give an Encumbrance, in relation to any of the Sale Shares, the New Unicom Shares and/or the New Unicom ADSs, and to the best of the Sellers’ knowledge, no person has claimed to be entitled to an Encumbrance in relation to any of the Sale Shares, the New Unicom Shares and/or the New Unicom ADSs;
5.4.8 to the extent it held proxy voting authority, each of the Sellers has tendered votes in respect of the Shares underlying the Sale Netcom ADSs in favour of the resolution approving the scheme of arrangement under section 166 of the Companies Ordinance (Cap 32 of the Laws of Hong Kong) between the Company and the shareholders of the Company at the extraordinary general meeting of the Company to be held on 17 September 2008, and any adjournment thereof;
5.4.9 the execution and delivery of, and the performance by each of the Sellers of its obligations under, this Purchase Agreement and any other documents to be executed by it pursuant to or in connection with this Agreement will not:
(a) result in a breach of any provision of the constitutional or organisational documents of each of the Sellers;
(b) result in a breach of or give any third party a right to terminate or modify, or result in the creation of any Encumbrance under, any agreement, licence or other instrument or result in a breach of any order, judgment or decree of any court, governmental agency or regulatory body to which each of the Sellers or its nominee is a party or by which any of the Sellers or its nominee or any of their respective assets is bound; or
(c) result in any breach of any contractual covenants or investment management agreement to which each of the Sellers is subject;
5.4.10 each of the Sellers is not a “connected fund manager” (as defined in the Takeovers CodeAnnouncement) will take place or a “connected principal trader” (the condition to the Offers as defined set out in the Takeovers Code) of the offeror Announcement will be satisfied or (i.e. Unicom) or the offeree company (i.e. the Company) nor a party acting in concert with the offeror and that consent from the Executive Director of the Corporate Finance Division of the Securities & Futures Commission is not required for the sale of the Sale Shares;
5.4.11 each of the Sellers is not required to obtain any other person’s consent in relation to the sale of extent applicable) waived or that the Sale Shares, Offers will proceed and be completed.
4.7 To the New Unicom Shares and the New Unicom ADSs;
5.4.12 each of the Sellers is not a connected person (as such term is defined in the Rules Governing the Listing of Securities on The Hong Kong Stock Exchange Limited) of the Company or Unicom;
5.4.13 no petition has been presented or order made and no meeting convened or resolution passed for the winding up or administration of extent any of the Sellers Relevant Shares are held by a custodian or for a provisional liquidator to be appointed in respect of any of trustee, the Sellers;
5.4.14 no distress, execution or other process has been levied on any of the assets of any of the Sellers, Covenantor confirms and no judgment creditor nor any liquidator, provisional liquidator, receiver or an administrative receiver of any of the Sellers has been appointed and there is no reason to believe undertakes that it will procure that such a person might be appointed;
5.4.15 no voluntary arrangement has been proposed in respect of any of the Sellers and their creditors; and
5.4.16 each of the Sellers is not insolvent, custodian or unable to pay its debts, and has not stopped paying its debts as they fall due, and no event analogous to any of the foregoing has occurred in or outside Hong Kong.
5.5 The Buyer represents and warrants to the Sellers that each Buyer Warranty is true, accurate and not misleading at the date of this Agreement. Immediately before Closing, the Buyer is deemed to warrant to the Sellers that each Buyer Warranty is true, accurate and not misleading by reference to the facts and circumstances on each day before Closing, and for this purpose only, any references in the Buyer Warranties to the date of this Agreement shall be construed as references to the relevant date. Unless otherwise set out in this Agreement, no other warranty is given by the Buyer.
5.6 The Buyer acknowledges that each of the Sellers is entering into this Agreement in reliance on each Buyer Warranty which has also been given as a representation and with the intention of inducing the Sellers to enter into this Agreement. The Buyer shall not invoke the Sellers’ constructive or imputed knowledge of a fact or circumstance which might make a Buyer Warranty untrue, inaccurate or misleading as a defence to a claim for breach of Clause 5.5.
5.7 The Buyer represents and warrants to the Sellers that:
5.7.1 the Buyer is a corporation duly organized and validly existing under the laws of its country of origin;
5.7.2 the Buyer has the legal right, full power and authority, and has taken all action necessary, to execute, deliver and to exercise its rights, and perform its obligations, under this Agreement and any other documents to be executed by the Buyer pursuant to or in connection with this Agreement, which when executed will constitute valid and binding obligations on the Buyer;
5.7.3 the execution and delivery of, and the performance by the Buyer of its obligations under, this Agreement and any other documents to be executed by it pursuant to or in connection with this Agreement will not:
(a) result in a breach of any provision of the constitutional or organisational documents of the Buyer; or
(b) result in a breach of or give any third party a right to terminate or modify, or result in the creation of any Encumbrance under, any agreement, licence or other instrument or result in a breach of any order, judgment or decree of any court, governmental agency or regulatory body to which the Buyer or its nominee is a party or by which any of the Buyer or its nominee or any of their respective assets is bound;
5.7.4 the Buyer is not required to obtain any other person’s consent in relation to the acquisition of the Sale Shares;
5.7.5 no petition has been presented or order made and no meeting convened or resolution passed for the winding up or administration of the Buyer or for a provisional liquidator to be appointed in respect of the Buyer;
5.7.6 no distress, execution or other process has been levied on any of the assets of the Buyer, and no judgment creditor nor any liquidator, provisional liquidator, receiver or an administrative receiver of the Buyer has been appointed and there is no reason to believe that such a person might be appointed;
5.7.7 no voluntary arrangement has been proposed in respect of the Buyer and its creditors; and
5.7.8 the Buyer is not insolvent, or unable to pay its debts, and has not stopped paying its debts as they fall due, and no event analogous to any of the foregoing has occurred in or outside Hong Kong.
5.8 Each of the Sellers undertakes to the Buyer that it shall not dispose of or enter into any agreement or arrangement to dispose of or permit the disposal of any of the Sale Shares, the disposal of which is subject to its discretion from the date of this Agreement and until the Long Stop Date or the date when this Agreement is terminated trustee acts in accordance with Clause 3.3, whichever is earlierthe terms of this Undertaking.
5.9 Each of the Sellers further undertakes to the Buyer that it shall exercise or procure to be exercised all the voting rights attaching to the Sale Listed Shares in favour of the resolution approving the Scheme and the Share Proposal at the shareholders’ meeting of the Company to be held on 17 September 2008, and any adjournment thereof.
Appears in 1 contract
Samples: Deed of Irrevocable Undertaking
REPRESENTATIONS, WARRANTIES AND UNDERTAKINGS. 5.1 Each of the Sellers represents The Warrantor will represent, warrant and warrants undertake to the Buyer that each Seller Warranty is true, accurate and not misleading at the date of this Agreement. Immediately before Closing, each of the Sellers is deemed to warrant to the Buyer that each Seller Warranty is true, accurate and not misleading by reference to the facts and circumstances on each day before Closing, and for this purpose only any references Purchaser in the Seller Warranties to the date of this Agreement shall be construed as references to the relevant date. Unless otherwise terms set out in this Agreement, no other warranty is given by Schedule IV (subject to the Sellers.
5.2 Each of matters fully and fairly disclosed in the Sellers acknowledges Disclosure Letter) and agree and acknowledge that the Buyer Purchaser is entering into this Agreement in reliance on each Seller the Warranties. Each of the Warranties is separate and independent; no Warranty which has also been given as a representation and with the intention is limited by reference to any other Warranty or part of inducing the Buyer to enter into this Agreement. .
5.2 The Sellers Warranties shall not invoke the Buyer’s constructive in any respect be extinguished or imputed knowledge of a fact or circumstance which might make a Seller Warranty untrue, inaccurate or misleading as a defence to a claim for breach of Clause 5.1affected by Completion.
5.3 Each Seller Warranty is to be construed independently The rights and (except where this Agreement provides otherwise) is not limited by a provision of this Agreement or another Warranty.
5.4 Each remedies of the Sellers represents and warrants to the Buyer that:
5.4.1 each of the Sellers is an entity duly organized and validly existing under the laws of its country of origin;
5.4.2 each of the Sellers has the legal right, full power and authority, and has taken all action necessary, to execute, deliver and to exercise its rights, and perform its obligations, under this Agreement and any other documents to be executed by each of the Sellers pursuant to or in connection with this Agreement, which when executed will constitute valid and binding obligations on each Seller and its asset management clients for whose account the Sale Shares are managed and who are the beneficial owners;
5.4.3 the Sale Shares are beneficially owned by the Sellers’ asset management clients in managed accounts over which the Sellers have investment discretion. To the best of the Sellers’ knowledge, there is no other person who has any legal or beneficial interest in the Sale Shares;
5.4.4 each of the Sellers is validly appointed as discretionary investment manager by the beneficial owners Purchaser in respect of the Sale Shares;Warranties shall not be affected by any investigation made by or on behalf of the Purchaser into the affairs of the Company.
5.4.5 the Sale Shares are beneficially owned 5.4 Any claim by the Sellers’ asset management clients; to the best of the Sellers’ knowledge, the beneficial owners of the Sale Shares have the full legal right to sell the Sale Shares and which are free from any Encumbrances;
5.4.6 upon completion of the Scheme, the Sellers’ asset management clients will be the sole beneficial owners of the New Unicom Shares and the New Unicom ADSs;
5.4.7 each of the Sellers has not created or permitted the creation of any Encumbrance nor entered into any agreement, arrangement or obligation to create or give an Encumbrance, in relation to any of the Sale Shares, the New Unicom Shares and/or the New Unicom ADSs, and to the best of the Sellers’ knowledge, no person has claimed to be entitled to an Encumbrance in relation to any of the Sale Shares, the New Unicom Shares and/or the New Unicom ADSs;
5.4.8 to the extent it held proxy voting authority, each of the Sellers has tendered votes Purchaser in respect of the Shares underlying Warranties shall be limited as provided for in Schedule V.
5.5 The Purchaser shall as soon as reasonably practicable inform the Sale Netcom ADSs Vendors in favour writing of any event which comes to the notice of the resolution approving Purchaser whereby it appears to the scheme of arrangement Purchaser that the Warrantors are or may become liable to make any payment under section 166 the Warranties, but failure by the Purchaser to comply with this provision shall not affect the Warrantors' obligations under Clause 5.
5.6 Without prejudice to the Purchaser's right to seek redress or recover damages upon any basis from time to time available to it, the Warrantors may be required to pay to the Purchaser an amount equal to (at the Purchaser's option) the amount by which the value of the Companies Ordinance (Cap 32 of the Laws of Hong Kong) between the Company and the shareholders assets or income of the Company at is diminished or the extraordinary general meeting liabilities (actual or contingent) or expenditure of the Company to be held on 17 September 2008, and any adjournment thereof;
5.4.9 the execution and delivery of, and the performance by each is increased which arises as a result of the Sellers of its obligations under, this Agreement and any other documents to be executed by it pursuant to or in connection with this Agreement will not:
(a) result in a breach of any provision of the constitutional or organisational documents of each of the Sellers;
(b) result in a breach of or give any third party a right to terminate or modify, or result in the creation of any Encumbrance under, any agreement, licence or other instrument or result in a breach of any order, judgment or decree of any court, governmental agency or regulatory body to which each of the Sellers or its nominee is a party or by which any of the Sellers or its nominee or any of their respective assets is bound; or
(c) result in any breach of any contractual covenants or investment management agreement to which each of the Sellers is subject;
5.4.10 each of the Sellers is not a “connected fund manager” (as defined in the Takeovers Code) or a “connected principal trader” (as defined in the Takeovers Code) of the offeror (i.e. Unicom) or the offeree company (i.e. the Company) nor a party acting in concert with the offeror and that consent from the Executive Director of the Corporate Finance Division of the Securities & Futures Commission is not required for the sale of the Sale Shares;
5.4.11 each of the Sellers is not required to obtain any other person’s consent in relation to the sale of the Sale Shares, the New Unicom Shares and the New Unicom ADSs;
5.4.12 each of the Sellers is not a connected person (as such term is defined in the Rules Governing the Listing of Securities on The Hong Kong Stock Exchange Limited) actual circumstances of the Company or Unicom;
5.4.13 no petition has been presented or order made and no meeting convened or resolution passed for the winding up or administration of and/or any of its affairs being otherwise than as warranted in Schedule IV.
5.7 The Warrantors undertake to the Sellers or for a provisional liquidator to be appointed Purchaser that each will waive all rights each may have in respect of any of misrepresentation, inaccuracy or omission in or from information supplied to it by the Sellers;
5.4.14 no distressCompany, execution or other process has been levied on its employees in connection with the Warranties, the Disclosure Letter or taxation and each undertakes not to make any of the assets of claims against any of the Sellers, and no judgment creditor nor any liquidator, provisional liquidator, receiver or an administrative receiver of any of the Sellers has been appointed and there is no reason to believe that such a person might be appointed;
5.4.15 no voluntary arrangement has been proposed in respect of any of the Sellers and their creditors; and
5.4.16 each of the Sellers is not insolventsuch misrepresentation, inaccuracy or unable to pay its debts, and has not stopped paying its debts as they fall due, and no event analogous to any of the foregoing has occurred in or outside Hong Kongomission.
5.5 The Buyer represents and warrants to the Sellers that each Buyer Warranty is true, accurate and not misleading at the date of this Agreement. Immediately before Closing, the Buyer is deemed to warrant to the Sellers that each Buyer Warranty is true, accurate and not misleading by reference to the facts and circumstances on each day before Closing, and for this purpose only, any references 5.8 Nothing in the Buyer Warranties to the date of this Agreement shall be construed as references to the relevant date. Unless otherwise set out in this Agreement, no other warranty is given by the Buyerexclude liability for fraud or dishonesty.
5.6 The Buyer acknowledges that each of the Sellers is entering into this Agreement in reliance on each Buyer Warranty which has also been given as a representation and with the intention of inducing the Sellers to enter into this Agreement. The Buyer shall not invoke the Sellers’ constructive or imputed knowledge of a fact or circumstance which might make a Buyer Warranty untrue, inaccurate or misleading as a defence to a claim for breach of Clause 5.5.
5.7 The Buyer represents and warrants to the Sellers that:
5.7.1 the Buyer is a corporation duly organized and validly existing under the laws of its country of origin;
5.7.2 the Buyer has the legal right, full power and authority, and has taken all action necessary, to execute, deliver and to exercise its rights, and perform its obligations, under this Agreement and any other documents to be executed by the Buyer pursuant to or in connection with this Agreement, which when executed will constitute valid and binding obligations on the Buyer;
5.7.3 the execution and delivery of, and the performance by the Buyer of its obligations under, this Agreement and any other documents to be executed by it pursuant to or in connection with this Agreement will not:
(a) result in a breach of any provision of the constitutional or organisational documents of the Buyer; or
(b) result in a breach of or give any third party a right to terminate or modify, or result in the creation of any Encumbrance under, any agreement, licence or other instrument or result in a breach of any order, judgment or decree of any court, governmental agency or regulatory body to which the Buyer or its nominee is a party or by which any of the Buyer or its nominee or any of their respective assets is bound;
5.7.4 the Buyer is not required to obtain any other person’s consent in relation to the acquisition of the Sale Shares;
5.7.5 no petition has been presented or order made and no meeting convened or resolution passed for the winding up or administration of the Buyer or for a provisional liquidator to be appointed in respect of the Buyer;
5.7.6 no distress, execution or other process has been levied on any of the assets of the Buyer, and no judgment creditor nor any liquidator, provisional liquidator, receiver or an administrative receiver of the Buyer has been appointed and there is no reason to believe that such a person might be appointed;
5.7.7 no voluntary arrangement has been proposed in respect of the Buyer and its creditors; and
5.7.8 the Buyer is not insolvent, or unable to pay its debts, and has not stopped paying its debts as they fall due, and no event analogous to any of the foregoing has occurred in or outside Hong Kong.
5.8 Each of the Sellers undertakes to the Buyer that it shall not dispose of or enter into any agreement or arrangement to dispose of or permit the disposal of any of the Sale Shares, the disposal of which is subject to its discretion from the date of this Agreement and until the Long Stop Date or the date when this Agreement is terminated in accordance with Clause 3.3, whichever is earlier.
5.9 Each of the Sellers further undertakes to the Buyer that it shall exercise or procure to be exercised all the voting rights attaching to the Sale Listed Shares in favour of the resolution approving the Scheme and the Share Proposal at the shareholders’ meeting of the Company to be held on 17 September 2008, and any adjournment thereof.
Appears in 1 contract
Samples: Acquisition Agreement (Mailkey Corp)
REPRESENTATIONS, WARRANTIES AND UNDERTAKINGS. 5.1 Each of the Sellers represents and warrants Subject to the Buyer that each Seller Warranty is true, accurate and not misleading at the date provisions of this Agreement. Immediately before Closing, each of the Sellers is deemed to warrant to the Buyer that each Seller Warranty is true, accurate and not misleading by reference to the facts and circumstances on each day before Closing, and for this purpose only any references in the Seller Warranties to the date of this Agreement shall be construed as references to the relevant date. Unless otherwise set out in this Agreement, no other warranty is given by the Sellers.
5.2 Each of the Sellers acknowledges that the Buyer is entering into this Agreement in reliance on each Seller Warranty which has also been given as a representation and with the intention of inducing the Buyer to enter into this Agreement. The Sellers shall not invoke the Buyer’s constructive or imputed knowledge of a fact or circumstance which might make a Seller Warranty untrue, inaccurate or misleading as a defence to a claim for breach of Clause 5.1.
5.3 Each Seller Warranty is to be construed independently and (except where this Agreement provides otherwise) is not limited by a provision of this Agreement or another Warranty.
5.4 Each of the Sellers represents and warrants to the Buyer that:
5.4.1 each of the Sellers is an entity duly organized and validly existing under the laws of its country of origin;
5.4.2 each of the Sellers has the legal right, full power and authority, and has taken all action necessary, to execute, deliver and to exercise its rights, and perform its obligations, under this Agreement and any other documents to be executed by each of the Sellers pursuant to or in connection with this AgreementSchedule 2, which when executed will constitute valid and binding obligations on each Seller and its asset management clients shall apply to all claims for whose account the Sale Shares are managed and who are the beneficial owners;
5.4.3 the Sale Shares are beneficially owned by the Sellers’ asset management clients in managed accounts over which the Sellers have investment discretion. To the best breaches of the Sellers’ knowledge, there is no other person who has any legal or beneficial interest in the Sale Shares;
5.4.4 each of the Sellers is validly appointed as discretionary investment manager by the beneficial owners in respect of the Sale Shares;
5.4.5 the Sale Shares are beneficially owned by the Sellers’ asset management clients; to the best of the Sellers’ knowledge, the beneficial owners of the Sale Shares have the full legal right to sell the Sale Shares and which are free from any Encumbrances;
5.4.6 upon completion of the Scheme, the Sellers’ asset management clients will be the sole beneficial owners of the New Unicom Shares and the New Unicom ADSs;
5.4.7 each of the Sellers has not created or permitted the creation of any Encumbrance nor entered into any agreement, arrangement or obligation to create or give an Encumbrance, in relation to any of the Sale Shares, the New Unicom Shares and/or the New Unicom ADSs, and to the best of the Sellers’ knowledge, no person has claimed to be entitled to an Encumbrance in relation to any of the Sale Shares, the New Unicom Shares and/or the New Unicom ADSs;
5.4.8 to the extent it held proxy voting authority, each of the Sellers has tendered votes in respect of the Shares underlying the Sale Netcom ADSs in favour of the resolution approving the scheme of arrangement under section 166 of the Companies Ordinance (Cap 32 of the Laws of Hong Kong) between the Company and the shareholders of the Company at the extraordinary general meeting of the Company to be held on 17 September 2008, and any adjournment thereof;
5.4.9 the execution and delivery of, and the performance by each of the Sellers of its obligations under, this Agreement and any other documents to be executed by it pursuant to or in connection with this Agreement will notWarranties:
(a) result the Vendor hereby warrants and represents to the Purchaser that the Vendor Warranties are true and accurate in a breach of any provision all material respects; and
(b) the Purchaser hereby warrants and represents to the Vendors that the Purchaser Warranties are true and accurate in all material respects.
5.2 The Purchaser agrees and acknowledges that:
(a) the total aggregate liability of the constitutional Vendor for any claim or organisational documents claims of each of breaches under this Agreement (excluding other legal and other costs and expenses) shall not in any event exceed an amount equal to the SellersConsideration;
(b) result no claim may be brought against the Vendor in respect of a breach of any of the Vendor Warranties after expiration of a period of twelve months from the Completion Date (“Warranty Expiry Date") and the Vendor shall not be liable in respect of a breach of any of the Vendor Warranties unless it shall have received written notice from the Purchaser prior to the Warranty Expiry Date giving reasonable details of the relevant claim and any such claim shall (if not previously satisfied, settled or withdrawn) be deemed to have been waived or withdrawn at the expiry of a period of six months after the Warranty Expiry Date unless proceedings in respect thereof shall have already been commenced against the Vendor; and
(c) no claim shall lie against the Vendor (under or in relation to the Vendor Warranties or any provision of this Agreement) or to the extent that such claim is attributable to any voluntary act, omission, transaction, or arrangement carried out directly by the Purchaser or on its behalf or by persons deriving title from any of the Purchaser after the Completion.
5.3 If at any time before Completion, the Purchaser shall find that any of the Vendor Warranties is not, or has not been, true and accurate in all material respects or is (in its reasonable opinion) incapable of being rectified before Completion, or (as the case may be) the Vendors shall find that any of the Purchaser Warranties is not, or has not been, true and accurate in all material respects or is (in its reasonable opinion) incapable of being rectified before Completion, the Purchaser or the Vendors (as the case may be) shall not be bound to complete the sale and purchase of the Sale Shares (if not yet completed immediately after the signing of this Agreement) and may rescind this Agreement by written notice to the other Party. For the avoidance of doubt, no party may rely on the breach or non-compliance of its own Warranties to rescind this Agreement.
5.4 Each Party shall promptly notify the other Party in writing of any fact, event or circumstance (including any omission to act) which it becomes aware of, that constitutes a breach of or give is in any third party a right to terminate or modify, or result in the creation of any Encumbrance under, any agreement, licence or other instrument or result in a breach of any order, judgment or decree of any court, governmental agency or regulatory body to which each of the Sellers or its nominee is a party or by which way inconsistent with any of the Sellers Warranties given by such party or its nominee or any of their respective assets is bound; or
(c) result in any breach of any contractual covenants or investment management agreement to which each of the Sellers is subject;
5.4.10 each of the Sellers is not a “connected fund manager” (as defined in the Takeovers Code) or a “connected principal trader” (as defined in the Takeovers Code) of the offeror (i.e. Unicom) or the offeree company (i.e. the Company) nor a party acting in concert with the offeror and that consent from the Executive Director of the Corporate Finance Division of the Securities & Futures Commission is not required for the sale of the Sale Shares;
5.4.11 each of the Sellers is not required to obtain any other person’s consent in relation to the sale of the Sale Shares, the New Unicom Shares and the New Unicom ADSs;
5.4.12 each of the Sellers is not a connected person (as such term is defined in the Rules Governing the Listing of Securities on The Hong Kong Stock Exchange Limited) of the Company or Unicom;
5.4.13 no petition has been presented or order made and no meeting convened or resolution passed for the winding up or administration of may make any of the Sellers or for a provisional liquidator to be appointed in respect of any of the Sellers;
5.4.14 no distress, execution or other process has been levied on any of the assets of any of the Sellers, and no judgment creditor nor any liquidator, provisional liquidator, receiver or an administrative receiver of any of the Sellers has been appointed and there is no reason to believe that such a person might be appointed;
5.4.15 no voluntary arrangement has been proposed in respect of any of the Sellers and their creditors; and
5.4.16 each of the Sellers is not insolvent, or unable to pay its debts, and has not stopped paying its debts as they fall due, and no event analogous to any of the foregoing has occurred in or outside Hong Kong.
5.5 The Buyer represents and warrants to the Sellers that each Buyer Warranty is true, accurate and not misleading at the date of this Agreement. Immediately before Closing, the Buyer is deemed to warrant to the Sellers that each Buyer Warranty is true, accurate and not misleading by reference to the facts and circumstances on each day before Closing, and for this purpose only, any references in the Buyer Warranties to the date of this Agreement shall be construed as references to the relevant date. Unless otherwise set out in this Agreement, no other warranty is given by the Buyersuch party not being true and accurate in all material respects.
5.6 The Buyer acknowledges that each of the Sellers is entering into this Agreement in reliance on each Buyer Warranty which has also been given as a representation and with the intention of inducing the Sellers to enter into this Agreement. The Buyer shall not invoke the Sellers’ constructive or imputed knowledge of a fact or circumstance which might make a Buyer Warranty untrue, inaccurate or misleading as a defence to a claim for breach of Clause 5.5.
5.7 The Buyer represents and warrants to the Sellers that:
5.7.1 the Buyer is a corporation duly organized and validly existing under the laws of its country of origin;
5.7.2 the Buyer has the legal right, full power and authority, and has taken all action necessary, to execute, deliver and to exercise its rights, and perform its obligations, under this Agreement and any other documents to be executed by the Buyer pursuant to or in connection with this Agreement, which when executed will constitute valid and binding obligations on the Buyer;
5.7.3 the execution and delivery of, and the performance by the Buyer of its obligations under, this Agreement and any other documents to be executed by it pursuant to or in connection with this Agreement will not:
(a) result in a breach of any provision of the constitutional or organisational documents of the Buyer; or
(b) result in a breach of or give any third party a right to terminate or modify, or result in the creation of any Encumbrance under, any agreement, licence or other instrument or result in a breach of any order, judgment or decree of any court, governmental agency or regulatory body to which the Buyer or its nominee is a party or by which any of the Buyer or its nominee or any of their respective assets is bound;
5.7.4 the Buyer is not required to obtain any other person’s consent in relation to the acquisition of the Sale Shares;
5.7.5 no petition has been presented or order made and no meeting convened or resolution passed for the winding up or administration of the Buyer or for a provisional liquidator to be appointed in respect of the Buyer;
5.7.6 no distress, execution or other process has been levied on any of the assets of the Buyer, and no judgment creditor nor any liquidator, provisional liquidator, receiver or an administrative receiver of the Buyer has been appointed and there is no reason to believe that such a person might be appointed;
5.7.7 no voluntary arrangement has been proposed in respect of the Buyer and its creditors; and
5.7.8 the Buyer is not insolvent, or unable to pay its debts, and has not stopped paying its debts as they fall due, and no event analogous to any of the foregoing has occurred in or outside Hong Kong.
5.8 Each of the Sellers undertakes to the Buyer that it shall not dispose of or enter into any agreement or arrangement to dispose of or permit the disposal of any of the Sale Shares, the disposal of which is subject to its discretion from the date of this Agreement and until the Long Stop Date or the date when this Agreement is terminated in accordance with Clause 3.3, whichever is earlier.
5.9 Each of the Sellers further undertakes to the Buyer that it shall exercise or procure to be exercised all the voting rights attaching to the Sale Listed Shares in favour of the resolution approving the Scheme and the Share Proposal at the shareholders’ meeting of the Company to be held on 17 September 2008, and any adjournment thereof.
Appears in 1 contract
Samples: Sale and Purchase Agreement
REPRESENTATIONS, WARRANTIES AND UNDERTAKINGS. 5.1 Each of the Sellers Pledgor represents and warrants for itself to the Buyer that each Seller Warranty is true, accurate and not misleading at Pledgee as set out hereafter:
1. The Claims existing on the date hereof have been duly entered into and constitute the valid, binding and enforceable obligation of this Agreement. Immediately before Closing, each of the Sellers parties thereto;
2. The Pledgor is deemed to warrant to the Buyer that each Seller Warranty is true, accurate and not misleading by reference to sole legal holder of the facts and circumstances Pledged Assets existing on each day before Closing, and for this purpose only any references in the Seller Warranties to the date of hereof pledged by it hereunder and has legal title to, such Pledged Assets, free from any Lien except as created by this Agreement shall be construed as references or any Lien permitted under any First Lien Document;
3. On the date hereof the Pledge over the Pledged Assets pursuant to this Pledge is not contrary to any court order or applicable to that Pledgor or of the relevant dateDebtor;
4. Unless otherwise set out This Agreement constitutes its legal, valid and binding obligations and operates as a valid pledge of its Pledged Assets in accordance with its terms and the Pledge created pursuant to this Agreement, no other warranty is given by the Sellers.
5.2 Each and once perfected pursuant to Clause 2, constitutes a legal, valid, binding and enforceable first priority and first ranking security interest over its Pledged Assets (if any) in favour of the Sellers acknowledges that Pledgee in respect of all Secured Obligations and in each case prior and superior to the Buyer is entering into this Agreement in reliance on each Seller Warranty which rights of other persons, except for any mandatory privileges preferred by applicable law;
5. The Pledgor has also been given as a representation and with the intention of inducing the Buyer necessary power to enable it to enter into this Agreement. The Sellers shall not invoke the Buyer’s constructive or imputed knowledge of a fact or circumstance which might make a Seller Warranty untrue, inaccurate or misleading as a defence to a claim for breach of Clause 5.1.
5.3 Each Seller Warranty is to be construed independently and (except where this Agreement provides otherwise) is not limited by a provision of this Agreement or another Warranty.
5.4 Each of the Sellers represents and warrants to the Buyer that:
5.4.1 each of the Sellers is an entity duly organized and validly existing under the laws of its country of origin;
5.4.2 each of the Sellers has the legal right, full power and authority, and has taken all action necessary, to execute, deliver and to exercise its rights, and perform its obligations, obligations under this Agreement and any other documents all necessary consents and authorizations for the execution of this Pledge Agreement have been obtained by the Pledgor and are in full force and effect except as could not reasonably be expected to be executed by each have a Material Adverse Effect;
6. Schedule 1 lists all Luxembourg law organized Affiliates of the Sellers pursuant to or Pledgors with registered office in connection with this Agreement, which when executed will constitute valid and binding obligations on each Seller and its asset management clients for whose account Luxembourg as of the Sale Shares are managed and who are the beneficial ownersdate hereof;
5.4.3 7. For the Sale Shares are beneficially owned by avoidance of doubt, the Sellers’ asset management clients in managed accounts over which the Sellers have investment discretion. To the best Pledgor hereby waives any rights arising for it (if any) under Article 2037 of the Sellers’ knowledge, there is no other person who has any legal or beneficial interest in the Sale Shares;
5.4.4 each of the Sellers is validly appointed as discretionary investment manager by the beneficial owners in respect of the Sale Shares;
5.4.5 the Sale Shares are beneficially owned by the Sellers’ asset management clients; to the best of the Sellers’ knowledge, the beneficial owners of the Sale Shares have the full legal right to sell the Sale Shares and which are free from any Encumbrances;
5.4.6 upon completion of the Scheme, the Sellers’ asset management clients will be the sole beneficial owners of the New Unicom Shares and the New Unicom ADSs;
5.4.7 each of the Sellers has not created or permitted the creation of any Encumbrance nor entered into any agreement, arrangement or obligation to create or give an Encumbrance, in relation to any of the Sale Shares, the New Unicom Shares and/or the New Unicom ADSs, and to the best of the Sellers’ knowledge, no person has claimed to be entitled to an Encumbrance in relation to any of the Sale Shares, the New Unicom Shares and/or the New Unicom ADSs;
5.4.8 to the extent it held proxy voting authority, each of the Sellers has tendered votes in respect of the Shares underlying the Sale Netcom ADSs in favour of the resolution approving the scheme of arrangement under section 166 of the Companies Ordinance (Cap 32 of the Laws of Hong Kong) between the Company and the shareholders of the Company at the extraordinary general meeting of the Company to be held on 17 September 2008, and any adjournment thereof;
5.4.9 the execution and delivery of, and the performance by each of the Sellers of its obligations under, this Agreement and any other documents to be executed by it pursuant to or in connection with this Agreement will not:
(a) result in a breach of any provision of the constitutional or organisational documents of each of the Sellers;
(b) result in a breach of or give any third party a right to terminate or modify, or result in the creation of any Encumbrance under, any agreement, licence or other instrument or result in a breach of any order, judgment or decree of any court, governmental agency or regulatory body to which each of the Sellers or its nominee is a party or by which any of the Sellers or its nominee or any of their respective assets is bound; or
(c) result in any breach of any contractual covenants or investment management agreement to which each of the Sellers is subject;
5.4.10 each of the Sellers is not a “connected fund manager” (as defined in the Takeovers Luxembourg Civil Code) or a “connected principal trader” (as defined in the Takeovers Code) of the offeror (i.e. Unicom) or the offeree company (i.e. the Company) nor a party acting in concert with the offeror and that consent from the Executive Director of the Corporate Finance Division of the Securities & Futures Commission is not required for the sale of the Sale Shares;
5.4.11 each of the Sellers is not required to obtain any other person’s consent in relation to the sale of the Sale Shares, the New Unicom Shares and the New Unicom ADSs;
5.4.12 each of the Sellers is not a connected person (as such term is defined in the Rules Governing the Listing of Securities on The Hong Kong Stock Exchange Limited) of the Company or Unicom;
5.4.13 no petition has been presented or order made and no meeting convened or resolution passed for the winding up or administration of any of the Sellers or for a provisional liquidator to be appointed in respect of any of the Sellers;
5.4.14 no distress, execution or other process has been levied on any of the assets of any of the Sellers, and no judgment creditor nor any liquidator, provisional liquidator, receiver or an administrative receiver of any of the Sellers has been appointed and there is no reason to believe that such a person might be appointed;
5.4.15 no voluntary arrangement has been proposed in respect of any of the Sellers and their creditors; and
5.4.16 8. it will, and will cause each of its Debtors to, assist the Sellers is not insolventPledgee in order to obtain all necessary material consents, or unable approvals and authorisations from any relevant authorities in order to pay permit the exercise by the Pledgee of its debts, rights and has not stopped paying its debts as they fall due, and no event analogous to any powers under this Pledge Agreement upon enforcement of the foregoing has occurred in or outside Hong KongPledge.
5.5 The Buyer represents and warrants to the Sellers that each Buyer Warranty is true, accurate and not misleading at the date of this Agreement. Immediately before Closing, the Buyer is deemed to warrant to the Sellers that each Buyer Warranty is true, accurate and not misleading by reference to the facts and circumstances on each day before Closing, and for this purpose only, any references in the Buyer Warranties to the date of this Agreement shall be construed as references to the relevant date. Unless otherwise set out in this Agreement, no other warranty is given by the Buyer.
5.6 The Buyer acknowledges that each of the Sellers is entering into this Agreement in reliance on each Buyer Warranty which has also been given as a representation and with the intention of inducing the Sellers to enter into this Agreement. The Buyer shall not invoke the Sellers’ constructive or imputed knowledge of a fact or circumstance which might make a Buyer Warranty untrue, inaccurate or misleading as a defence to a claim for breach of Clause 5.5.
5.7 The Buyer represents and warrants to the Sellers that:
5.7.1 the Buyer is a corporation duly organized and validly existing under the laws of its country of origin;
5.7.2 the Buyer has the legal right, full power and authority, and has taken all action necessary, to execute, deliver and to exercise its rights, and perform its obligations, under this Agreement and any other documents to be executed by the Buyer pursuant to or in connection with this Agreement, which when executed will constitute valid and binding obligations on the Buyer;
5.7.3 the execution and delivery of, and the performance by the Buyer of its obligations under, this Agreement and any other documents to be executed by it pursuant to or in connection with this Agreement will not:
(a) result in a breach of any provision of the constitutional or organisational documents of the Buyer; or
(b) result in a breach of or give any third party a right to terminate or modify, or result in the creation of any Encumbrance under, any agreement, licence or other instrument or result in a breach of any order, judgment or decree of any court, governmental agency or regulatory body to which the Buyer or its nominee is a party or by which any of the Buyer or its nominee or any of their respective assets is bound;
5.7.4 the Buyer is not required to obtain any other person’s consent in relation to the acquisition of the Sale Shares;
5.7.5 no petition has been presented or order made and no meeting convened or resolution passed for the winding up or administration of the Buyer or for a provisional liquidator to be appointed in respect of the Buyer;
5.7.6 no distress, execution or other process has been levied on any of the assets of the Buyer, and no judgment creditor nor any liquidator, provisional liquidator, receiver or an administrative receiver of the Buyer has been appointed and there is no reason to believe that such a person might be appointed;
5.7.7 no voluntary arrangement has been proposed in respect of the Buyer and its creditors; and
5.7.8 the Buyer is not insolvent, or unable to pay its debts, and has not stopped paying its debts as they fall due, and no event analogous to any of the foregoing has occurred in or outside Hong Kong.
5.8 Each of the Sellers undertakes to the Buyer that it shall not dispose of or enter into any agreement or arrangement to dispose of or permit the disposal of any of the Sale Shares, the disposal of which is subject to its discretion from the date of this Agreement and until the Long Stop Date or the date when this Agreement is terminated in accordance with Clause 3.3, whichever is earlier.
5.9 Each of the Sellers further undertakes to the Buyer that it shall exercise or procure to be exercised all the voting rights attaching to the Sale Listed Shares in favour of the resolution approving the Scheme and the Share Proposal at the shareholders’ meeting of the Company to be held on 17 September 2008, and any adjournment thereof.
Appears in 1 contract
REPRESENTATIONS, WARRANTIES AND UNDERTAKINGS. 5.1 Representations, Warranties and undertakings by the Warrantors The Warrantors jointly and severally represent, warrant and undertake to the Hong Kong Underwriters and each of them on the terms set out in Schedule 3, and accept that each of the Underwriters is entering into this Agreement in reliance upon each of such representations, warranties and undertakings.
5.2 Rights In relation to the Warranties
(A) Each of the Sellers represents Warranties shall be construed separately and warrants shall not be limited or restricted by reference to or inference from the terms of any other of the Warranties or any other term of this Agreement.
(B) The Warranties shall remain in full force and effect notwithstanding completion of the Hong Kong Offer.
(C) The Warranties are given on and as at the date of this Agreement with respect to the Buyer that each Seller Warranty is true, accurate facts and not misleading circumstances subsisting at the date of this Agreement. Immediately before ClosingIn addition, each the Warranties shall be deemed to be given on and as at:
(1) the Prospectus Date;
(2) the Acceptance Date;
(3) The Price Determination Date;
(4) the Force Majeure Expiry Time; and
(5) immediately prior to the commencement of trading of the Sellers is Shares on GEM, with reference to the facts and circumstances then subsisting, and, in relation to any Warranties, on the basis that each reference to "Hong Kong Offer Documents" in the Warranties shall be deemed to warrant be a reference to the Buyer that each Seller Warranty is trueHong Kong Offer Documents as amended or supplemented as at such date pursuant to Clause 5.2(E)(1).
(D) Each of the Warrantors undertake to give notice to the Joint Global Coordinators (on behalf of the Underwriters) forthwith of any matter or event coming to its attention at any time on or prior to the last date on which the Warranties are deemed to be given pursuant to the provisions of Clause 5.2(C) which shows any of the Warranties to be or to have been or may become untrue, accurate and not inaccurate or misleading or breached.
(E) If at any time, by reference to the facts and circumstances then subsisting, on each day before Closing, and for this purpose only any references in the Seller Warranties or prior to the last date of this Agreement shall on which the Warranties are deemed to be construed as references given pursuant to the relevant date. Unless otherwise set out in this Agreementprovisions of Clause 5.2(C), no other warranty is given by any matter, event or circumstances (an "Event") comes to the Sellers.
5.2 Each attention of any of the Sellers acknowledges that the Buyer is entering into this Agreement in reliance on each Seller Warranty which has also been given Warrantors as a representation and with result of which any Warranties, if repeated immediately after the intention occurrence of inducing the Buyer to enter into this Agreement. The Sellers shall not invoke the Buyer’s constructive such matter or imputed knowledge of a fact or circumstance which might make a Seller Warranty event, would be untrue, inaccurate or misleading as a defence to a claim for breach of Clause 5.1.
5.3 Each Seller Warranty is to be construed independently and (except where this Agreement provides otherwise) is not limited by a provision of this Agreement or another Warranty.
5.4 Each of the Sellers represents and warrants to the Buyer that:
5.4.1 each of the Sellers is an entity duly organized and validly existing under the laws of its country of origin;
5.4.2 each of the Sellers has the legal right, full power and authority, and has taken all action necessary, to execute, deliver and to exercise its rights, and perform its obligations, under this Agreement and any other documents to be executed by each of the Sellers pursuant to breached or in connection with this Agreement, which when executed will constitute valid and binding obligations on each Seller and its asset management clients for whose account the Sale Shares are managed and who are the beneficial owners;
5.4.3 the Sale Shares are beneficially owned by the Sellers’ asset management clients in managed accounts over which the Sellers have investment discretion. To the best of the Sellers’ knowledge, there is no other person who has any legal would or beneficial interest in the Sale Shares;
5.4.4 each of the Sellers is validly appointed as discretionary investment manager by the beneficial owners in respect of the Sale Shares;
5.4.5 the Sale Shares are beneficially owned by the Sellers’ asset management clients; to the best of the Sellers’ knowledge, the beneficial owners of the Sale Shares have the full legal right to sell the Sale Shares and which are free from any Encumbrances;
5.4.6 upon completion of the Scheme, the Sellers’ asset management clients will be the sole beneficial owners of the New Unicom Shares and the New Unicom ADSs;
5.4.7 each of the Sellers has not created or permitted the creation of any Encumbrance nor entered into any agreement, arrangement or obligation to create or give an Encumbrance, in relation to any of the Sale Shares, the New Unicom Shares and/or the New Unicom ADSs, and to the best of the Sellers’ knowledge, no person has claimed to be entitled to an Encumbrance in relation to any of the Sale Shares, the New Unicom Shares and/or the New Unicom ADSs;
5.4.8 to the extent it held proxy voting authority, each of the Sellers has tendered votes in respect of the Shares underlying the Sale Netcom ADSs in favour of the resolution approving the scheme of arrangement under section 166 of the Companies Ordinance (Cap 32 of the Laws of Hong Kong) between the Company and the shareholders of the Company at the extraordinary general meeting of the Company to be held on 17 September 2008, and any adjournment thereof;
5.4.9 the execution and delivery of, and the performance by each of the Sellers of its obligations under, this Agreement and any other documents to be executed by it pursuant to or in connection with this Agreement will not:
(a) result in a breach of any provision of the constitutional or organisational documents of each of the Sellers;
(b) result in a breach of or give any third party a right to terminate or modify, or result in the creation of any Encumbrance under, any agreement, licence or other instrument or result in a breach of any order, judgment or decree of any court, governmental agency or regulatory body to which each of the Sellers or its nominee is a party or by which any of the Sellers or its nominee or any of their respective assets is bound; or
(c) result in any breach of any contractual covenants or investment management agreement to which each of the Sellers is subject;
5.4.10 each of the Sellers is not a “connected fund manager” (as defined in the Takeovers Code) or a “connected principal trader” (as defined in the Takeovers Code) of the offeror (i.e. Unicom) or the offeree company (i.e. the Company) nor a party acting in concert with the offeror and that consent from the Executive Director of the Corporate Finance Division of the Securities & Futures Commission is not required for the sale of the Sale Shares;
5.4.11 each of the Sellers is not required to obtain any other person’s consent in relation to the sale of the Sale Shares, the New Unicom Shares and the New Unicom ADSs;
5.4.12 each of the Sellers is not a connected person (as such term is defined in the Rules Governing the Listing of Securities on The Hong Kong Stock Exchange Limited) of the Company or Unicom;
5.4.13 no petition has been presented or order made and no meeting convened or resolution passed for the winding up or administration of any of the Sellers or for a provisional liquidator to be appointed in respect of any of the Sellers;
5.4.14 no distress, execution or other process has been levied on any of the assets of any of the Sellers, and no judgment creditor nor any liquidator, provisional liquidator, receiver or an administrative receiver of any of the Sellers has been appointed and there is no reason to believe that such a person might be appointed;
5.4.15 no voluntary arrangement has been proposed in respect of any of the Sellers and their creditors; and
5.4.16 each of the Sellers is not insolvent, or unable to pay its debts, and has not stopped paying its debts as they fall due, and no event analogous to any of the foregoing has occurred in or outside Hong Kong.
5.5 The Buyer represents and warrants to the Sellers that each Buyer Warranty is true, accurate and not misleading at the date of this Agreement. Immediately before Closing, the Buyer is deemed to warrant to the Sellers that each Buyer Warranty is true, accurate and not misleading by reference to the facts and circumstances on each day before Closing, and for this purpose only, any references in the Buyer Warranties to the date of this Agreement shall be construed as references to the relevant date. Unless otherwise set out in this Agreement, no other warranty is given by the Buyer.
5.6 The Buyer acknowledges that each of the Sellers is entering into this Agreement in reliance on each Buyer Warranty which has also been given as a representation and with the intention of inducing the Sellers to enter into this Agreement. The Buyer shall not invoke the Sellers’ constructive or imputed knowledge of a fact or circumstance which might make a Buyer Warranty render untrue, inaccurate or misleading as a defence any statement, whether of fact or opinion, contained in the Hong Kong Public Offering Documents if the same were issued immediately after the occurrence of such Event, or if for any reason it shall be necessary to a claim for breach amend or supplement the Hong Kong Offer Documents, such Warrantor shall forthwith notify and consult with Hong Kong Underwriters (but without prejudice to any other rights of Clause 5.5any party).
5.7 (F) The Buyer represents Joint Global Coordinators shall in their sole and warrants to the Sellers that:
5.7.1 the Buyer is a corporation duly organized and validly existing under the laws of its country of origin;
5.7.2 the Buyer has the legal rightabsolute discretion determine, full power and authority, and has taken all action necessary, to execute, deliver and to exercise its rights, and perform its obligations, under this Agreement and any other documents to be executed by the Buyer pursuant to or in connection with this Agreement, which when executed will constitute valid and binding obligations on the Buyer;
5.7.3 the execution and delivery of, and the performance by the Buyer of its obligations under, this Agreement and any other documents to be executed by it pursuant to or in connection with this Agreement will not:
(a) result in a breach of any provision of the constitutional or organisational documents of the Buyer; or
(b) result in a breach of or give any third party a right to terminate or modify, or result in the creation of any Encumbrance under, any agreement, licence or other instrument or result in a breach of any order, judgment or decree of any court, governmental agency or regulatory body to which the Buyer or its nominee is a party or by which if any of the Buyer Hong Kong Offer Documents has already been issued, published, distributed or its nominee made publicly available, what amendments or supplements thereto and what other announcement or circular or document, if any, should be issued, published, distributed or made publicly available or what other act or thing should be done. The Company will, with the prior written approval of the Joint Global Coordinators, so amend or supplement the Hong Kong Offer Documents and will issue and publish such other announcement or circular or document and do such other act or thing as may be required by the Joint Global Coordinators and will, without charge, supply to the Joint Global Coordinators as many copies as the Joint Global Coordinators may from time to time request of the amended or supplement to the Hong Kong Public Offering Documents and the aforesaid announcement, circular or document (if any). The Company and the Hong Kong Underwriters (other than the Joint Global Coordinators) agree not to issue, publish, distribute or make publicly available any such announcement, circular or document without the prior consent of their respective assets is boundthe Joint Global Coordinators (for which purpose such consent may only be given by anyone of the Relevant Global Co-ordinate Persons);
5.7.4 (G) The provisions of paragraph 4.4 of Schedule 5 shall be deemed to be repeated as of the Buyer is not required to obtain any other person’s consent in relation date of each such amendment or supplement to the acquisition of Hong Kong Offer Documents on the Sale Shares;
5.7.5 no petition has been presented or order made and no meeting convened or resolution passed for the winding up or administration of the Buyer or for a provisional liquidator basis that each reference to "Hong Kong Offer Documents" in such paragraph shall be deemed to be appointed in respect of a reference to the Buyer;
5.7.6 no distress, execution Hong Kong Offer Documents as amended or other process has been levied on any of the assets of the Buyer, and no judgment creditor nor any liquidator, provisional liquidator, receiver or an administrative receiver of the Buyer has been appointed and there is no reason to believe that supplemented as at such a person might be appointed;
5.7.7 no voluntary arrangement has been proposed in respect of the Buyer and its creditorsdate; and
5.7.8 (H) If any Event shall have occurred prior to the Buyer is not insolventForce Majeure Expiry Time, or unable no actions taken pursuant to pay its debts, and has not stopped paying its debts as they fall due, and no event analogous to the provisions of this Clause 5.2(E) shall prejudice any rights of the foregoing has occurred in or outside Hong KongJoint Global Coordinators arising pursuant to Clause 8.
5.8 Each of the Sellers undertakes to the Buyer that it shall not dispose of or enter into any agreement or arrangement to dispose of or permit the disposal of any of the Sale Shares, the disposal of which is subject to its discretion from the date of this Agreement and until the Long Stop Date or the date when this Agreement is terminated in accordance with Clause 3.3, whichever is earlier.
5.9 Each of the Sellers further undertakes to the Buyer that it shall exercise or procure to be exercised all the voting rights attaching to the Sale Listed Shares in favour of the resolution approving the Scheme and the Share Proposal at the shareholders’ meeting of the Company to be held on 17 September 2008, and any adjournment thereof.
Appears in 1 contract
REPRESENTATIONS, WARRANTIES AND UNDERTAKINGS. 5.1 10.1 Each of the Sellers represents Warrantors jointly and severally represents, warrants and undertakes to each of the Buyer Sole Sponsor, the Sole Overall Coordinator, the Joint Global Coordinators, the Joint Bookrunners, the Joint Lead Managers, the Syndicate CMIs and the Public Offer Underwriters in the terms set forth in Part A of Schedule 5 (save as disclosed in this Agreement, the Prospectus and the documents listed in Schedule 3 hereto), each of the Controlling Shareholders jointly and severally represents, warrants and undertakes to each of the Sole Sponsor, the Sole Overall Coordinator, the Joint Global Coordinators, the Joint Bookrunners, the Joint Lead Managers, the Syndicate CMIs and the Public Offer Underwriters in the terms set forth in Part B of Schedule 5, and accepts that each Seller of the Sole Sponsor, the Sole Overall Coordinator, the Joint Global Coordinators, the Joint Bookrunners, the Joint Lead Managers, the Syndicate CMIs and the Public Offer Underwriters is entering into this Agreement in reliance upon each such representation, warranty and undertaking.
10.2 Each Warranty is true, accurate shall be construed separately and shall not misleading be limited or restricted by reference to or inference from the terms of any other Warranty.
10.3 The Warranties are given on and as at the date of this Agreement. Immediately before Closing, each Agreement and will be deemed to be repeated as at:
(a) the date on which the Prospectus and the Application Form are registered by the Registrar of Companies in Hong Kong as required by section 342C of the Sellers is Companies (WUMP) Ordinance;
(b) the Prospectus Date and the date of the supplemental Prospectus (if any);
(c) the Acceptance Date;
(d) the Price Determination Date; and
(e) the time immediately prior to commencement of dealings in the Shares on the Stock Exchange, in each case with respect to the facts and circumstances subsisting as at such date. For the avoidance of doubt, nothing in this Clause 10.3 shall affect the on-going nature of the Warranties.
10.4 Each of the Company and the Covenantors jointly and severally undertakes to give notice to the Sole Sponsor, the Sole Overall Coordinator and the Joint Global Coordinators (for themselves and on behalf of the Public Offer Underwriters) forthwith of any matter or event coming to its or any of its respective directors’ (if appropriate) attention on or prior to any of the relevant dates on which the Warranties are deemed to warrant be given pursuant to Clause 10.3, which shows any of the Buyer that each Seller Warranty is trueWarranties to be or to have been untrue, accurate and not inaccurate or misleading or breached in any material respect.
10.5 If at any time, by reference to the facts and circumstances then subsisting, on each day before Closing, and for this purpose only any references in the Seller Warranties to the date of this Agreement shall be construed as references to the relevant date. Unless otherwise set out in this Agreement, no other warranty is given by the Sellers.
5.2 Each of the Sellers acknowledges that the Buyer is entering into this Agreement in reliance on each Seller Warranty which has also been given as a representation and with the intention of inducing the Buyer to enter into this Agreement. The Sellers shall not invoke the Buyer’s constructive or imputed knowledge of a fact or circumstance which might make a Seller Warranty untrue, inaccurate or misleading as a defence to a claim for breach of Clause 5.1.
5.3 Each Seller Warranty is to be construed independently and (except where this Agreement provides otherwise) is not limited by a provision of this Agreement or another Warranty.
5.4 Each of the Sellers represents and warrants to the Buyer that:
5.4.1 each of the Sellers is an entity duly organized and validly existing under the laws of its country of origin;
5.4.2 each of the Sellers has the legal right, full power and authority, and has taken all action necessary, to execute, deliver and to exercise its rights, and perform its obligations, under this Agreement and any other documents to be executed by each of the Sellers pursuant to or in connection with this Agreement, which when executed will constitute valid and binding obligations on each Seller and its asset management clients for whose account the Sale Shares are managed and who are the beneficial owners;
5.4.3 the Sale Shares are beneficially owned by the Sellers’ asset management clients in managed accounts over which the Sellers have investment discretion. To the best of the Sellers’ knowledge, there is no other person who has any legal or beneficial interest in the Sale Shares;
5.4.4 each of the Sellers is validly appointed as discretionary investment manager by the beneficial owners in respect of the Sale Shares;
5.4.5 the Sale Shares are beneficially owned by the Sellers’ asset management clients; to the best of the Sellers’ knowledge, the beneficial owners of the Sale Shares have the full legal right to sell the Sale Shares and which are free from any Encumbrances;
5.4.6 upon completion of the Scheme, the Sellers’ asset management clients will be the sole beneficial owners of the New Unicom Shares and the New Unicom ADSs;
5.4.7 each of the Sellers has not created or permitted the creation of any Encumbrance nor entered into any agreement, arrangement or obligation to create or give an Encumbrance, in relation prior to any of the Sale Sharesrelevant dates on which the Warranties are deemed to be given pursuant to Clause 10.3, any matter or event that comes to the attention of the Company, the New Unicom Shares and/or the New Unicom ADSs, and to the best of the Sellers’ knowledge, no person has claimed to be entitled to an Encumbrance in relation to Covenantors or any of the Sale Shares, the New Unicom Shares and/or the New Unicom ADSs;
5.4.8 to the extent it held proxy voting authority, each Public Offer Underwriters as a result of which any of the Sellers has tendered votes Warranties if repeated immediately after the occurrence of such matter or event, would in any material respect be untrue or inaccurate or misleading or breached or which would or might render untrue or inaccurate or misleading in any material respect any statement, whether of fact or opinion, contained in the Shares underlying Offering Documents if the Sale Netcom ADSs in favour same were issued immediately after the occurrence of the resolution approving the scheme of arrangement under section 166 of the Companies Ordinance (Cap 32 of the Laws of Hong Kong) between such matter or event, the Company and the shareholders Covenantors shall forthwith notify the Sole Sponsor, the Sole Overall Coordinator and the Joint Global Coordinators (for themselves and on behalf of the Company at Public Offer Underwriters) who shall forthwith notify the extraordinary general meeting Public Offer Underwriters of the same and, but without prejudice to any other rights of any party, the Covenantors, the Company, the Sole Sponsor, the Sole Overall Coordinator and the Joint Global Coordinators shall forthwith consult with a view to agreeing, if any of the Offering Documents has already been issued, published, distributed or made publicly available, the contents and the necessity of any announcement or circular or document, if any, should be issued, published, distributed or made publicly available or what other act or thing should be done. The Company and the Covenantors agree not to issue, publish, distribute or make publicly available any such announcement, circular or document without the prior written consent (which should not be held unreasonably withheld) of the Sole Sponsor, the Sole Overall Coordinator and the Joint Global Coordinators (for themselves and on 17 September 2008behalf of the Public Offer Underwriters) except as required by the applicable Laws.
10.6 Each of the Warrantors jointly and severally, will not, and any adjournment thereof;
5.4.9 the execution and delivery of, and the performance by each of the Sellers will procure that none of its obligations under, this Agreement and any other documents to be executed by it pursuant to or in connection with this Agreement will notAffiliates will:
(a) result in a breach of any provision of the constitutional do or organisational documents of each of the Sellers;
(b) result in a breach of or give any third party a right omit to terminate or modify, or result in the creation of any Encumbrance under, any agreement, licence or other instrument or result in a breach of any order, judgment or decree of any court, governmental agency or regulatory body do anything which is likely to which each of the Sellers or its nominee is a party or by which cause any of the Sellers representations, undertakings or its nominee or any of their respective assets is bound; or
(c) result warranties given pursuant to this Clause 10 to be untrue in any breach material respect at any time immediately prior to the commencement of any contractual covenants or investment management agreement to which each of the Sellers is subject;
5.4.10 each of the Sellers is not a “connected fund manager” (as defined dealing in the Takeovers Code) or a “connected principal trader” (as defined in Shares on the Takeovers Code) of the offeror (i.e. Unicom) or the offeree company (i.e. the Company) nor a party acting in concert with the offeror and that consent from the Executive Director of the Corporate Finance Division of the Securities & Futures Commission is not required for the sale of the Sale Shares;
5.4.11 each of the Sellers is not required to obtain any other person’s consent in relation to the sale of the Sale Shares, the New Unicom Shares and the New Unicom ADSs;
5.4.12 each of the Sellers is not a connected person (as such term is defined in the Rules Governing the Listing of Securities on The Hong Kong Stock Exchange Limited) of the Company (assuming such representations or Unicom;
5.4.13 no petition has been presented or order made and no meeting convened or resolution passed for the winding up or administration of any of the Sellers or for a provisional liquidator warranties to be appointed in respect of any of the Sellers;
5.4.14 no distress, execution or other process has been levied on any of the assets of any of the Sellers, and no judgment creditor nor any liquidator, provisional liquidator, receiver or an administrative receiver of any of the Sellers has been appointed and there is no reason to believe that such a person might be appointed;
5.4.15 no voluntary arrangement has been proposed in respect of any of the Sellers and their creditors; and
5.4.16 each of the Sellers is not insolvent, or unable to pay its debts, and has not stopped paying its debts as they fall due, and no event analogous to any of the foregoing has occurred in or outside Hong Kong.
5.5 The Buyer represents and warrants to the Sellers that each Buyer Warranty is true, accurate and not misleading repeated at the date of this Agreement. Immediately before Closing, the Buyer is deemed to warrant to the Sellers that each Buyer Warranty is true, accurate and not misleading by relevant time with reference to the facts and circumstances on each day before Closing, and for this purpose only, any references in the Buyer Warranties to the date of this Agreement shall be construed as references to the relevant date. Unless otherwise set out in this Agreement, no other warranty is given by the Buyer.
5.6 The Buyer acknowledges that each of the Sellers is entering into this Agreement in reliance on each Buyer Warranty which has also been given as a representation and with the intention of inducing the Sellers to enter into this Agreement. The Buyer shall not invoke the Sellers’ constructive or imputed knowledge of a fact or circumstance which might make a Buyer Warranty untrue, inaccurate or misleading as a defence to a claim for breach of Clause 5.5.
5.7 The Buyer represents and warrants to the Sellers that:
5.7.1 the Buyer is a corporation duly organized and validly existing under the laws of its country of origin;
5.7.2 the Buyer has the legal right, full power and authority, and has taken all action necessary, to execute, deliver and to exercise its rights, and perform its obligations, under this Agreement and any other documents to be executed by the Buyer pursuant to or in connection with this Agreement, which when executed will constitute valid and binding obligations on the Buyer;
5.7.3 the execution and delivery of, and the performance by the Buyer of its obligations under, this Agreement and any other documents to be executed by it pursuant to or in connection with this Agreement will not:
(a) result in a breach of any provision of the constitutional or organisational documents of the Buyerthen subsisting); or
(b) result in a breach at any time immediately prior to the commencement of or give any third party a right to terminate or modify, or result dealings in the creation of any Encumbrance under, any agreement, licence or other instrument or result in a breach of any order, judgment or decree of any court, governmental agency or regulatory body to which Shares on the Buyer or its nominee is a party or by which any of the Buyer or its nominee or any of their respective assets is bound;
5.7.4 the Buyer is not required to obtain any other person’s consent in relation to the acquisition of the Sale Shares;
5.7.5 no petition has been presented or order made and no meeting convened or resolution passed for the winding up or administration of the Buyer or for a provisional liquidator to be appointed in respect of the Buyer;
5.7.6 no distress, execution or other process has been levied on any of the assets of the Buyer, and no judgment creditor nor any liquidator, provisional liquidator, receiver or an administrative receiver of the Buyer has been appointed and there is no reason to believe that such a person might be appointed;
5.7.7 no voluntary arrangement has been proposed in respect of the Buyer and its creditors; and
5.7.8 the Buyer is not insolvent, or unable to pay its debts, and has not stopped paying its debts as they fall due, and no event analogous to any of the foregoing has occurred in or outside Hong Kong.
5.8 Each of the Sellers undertakes to the Buyer that it shall not dispose of or Stock Exchange enter into any agreement contract or arrangement commitment of an unusual or onerous nature, whether or not that contract or commitment, if entered into prior to dispose of the date hereof, would constitute a material contract or permit a material commitment for the disposal of any purpose of the Sale Shares, the disposal of which is subject to its discretion from the date of this Agreement and until the Long Stop Date or the date when this Agreement is terminated in accordance with Clause 3.3, whichever is earlierProspectus.
5.9 Each 10.7 The Warranties shall remain in full force and effect notwithstanding completion of the Sellers further undertakes all matters and arrangements referred to the Buyer that it shall exercise in or procure to be exercised all the voting rights attaching to the Sale Listed Shares in favour of the resolution approving the Scheme and the Share Proposal at the shareholders’ meeting of the Company to be held on 17 September 2008, and any adjournment thereofcontemplated by this Agreement.
Appears in 1 contract
Samples: Public Offer Underwriting Agreement
REPRESENTATIONS, WARRANTIES AND UNDERTAKINGS. 5.1 Each of 3.1 The Obligors hereby make the Sellers represents following representations and warrants warranties:
(1) They have full power and authority to execute and perform this Agreement;
(2) The Obligors do not have any action, arbitration or any other judicial or administrative procedure pending or that may potentially materially affect the Buyer that each Seller Warranty is true, accurate and not misleading at the date performance of this Agreement. Immediately before Closing, each ;
(3) No Obligor has been declared bankrupt;
(4) Other than the share pledge created in favor of the Sellers Obligee, there is deemed to warrant not any mortgage, pledge, charge or any other third-party encumbrance created upon the Shares held by the Obligors;
(5) The Option granted by the Obligors to the Buyer that each Seller Warranty Obligee hereunder is true, accurate and not misleading by reference to the facts and circumstances on each day before Closingexclusive, and for this purpose only the Obligors will not grant an option or similar right to any references in other third party through other means.
3.2 The Obligors hereby undertake that, throughout the Seller Warranties to the date term of this Agreement:
(1) They will sign a Share Transfer Agreement shall be construed as references and adopt a shareholders’ resolution according to the relevant date. Unless otherwise set out in this Agreement, no other warranty is given by and assist the Sellers.
5.2 Each of Obligee to obtain the Sellers acknowledges that necessary approval from the Buyer is entering into this Agreement in reliance on each Seller Warranty which has also been given as a representation and with government authority regarding the intention of inducing share transfer, to submit the Buyer to enter into this Share Transfer Agreement. The Sellers shall not invoke , the Buyer’s constructive or imputed knowledge of a fact or circumstance which might make a Seller Warranty untrue, inaccurate or misleading as a defence to a claim for breach of Clause 5.1.
5.3 Each Seller Warranty is to be construed independently and (except where this Agreement provides otherwise) is not limited by a provision of this Agreement or another Warranty.
5.4 Each of the Sellers represents and warrants amendment to the Buyer that:
5.4.1 each Articles of Association and the Sellers is an entity duly organized and validly existing under the laws updated register of its country of origin;
5.4.2 each of the Sellers has the legal right, full power and authority, and has taken all action necessary, to execute, deliver and to exercise its rights, and perform its obligations, under this Agreement and any other documents to be executed by each of the Sellers pursuant to or in connection with this Agreement, which when executed will constitute valid and binding obligations on each Seller and its asset management clients for whose account the Sale Shares are managed and who are the beneficial owners;
5.4.3 the Sale Shares are beneficially owned by the Sellers’ asset management clients in managed accounts over which the Sellers have investment discretion. To the best of the Sellers’ knowledge, there is no other person who has any legal or beneficial interest in the Sale Shares;
5.4.4 each of the Sellers is validly appointed as discretionary investment manager by the beneficial owners in respect of the Sale Shares;
5.4.5 the Sale Shares are beneficially owned by the Sellers’ asset management clients; shareholders to the best of the Sellers’ knowledge, the beneficial owners of the Sale Shares have the full legal right to sell the Sale Shares competent administration for industry and which are free from any Encumbrances;
5.4.6 upon completion of the Scheme, the Sellers’ asset management clients will be the sole beneficial owners of the New Unicom Shares and the New Unicom ADSs;
5.4.7 each of the Sellers has not created or permitted the creation of any Encumbrance nor entered into any agreement, arrangement or obligation to create or give an Encumbrance, in relation to any of the Sale Shares, the New Unicom Shares and/or the New Unicom ADSscommerce, and to complete all other relevant formalities;
(2) Other than the best share pledge created in favor of the Sellers’ knowledgeObligee, no person has claimed to be entitled to an Encumbrance in relation to any without the prior written consent of the Sale Obligee, the Obligors may not create any mortgage, pledge, charge or any other third-party encumbrance on the Shares, the New Unicom Shares and/or the New Unicom ADSs;
5.4.8 to the extent it held proxy voting authorityor assign, each of the Sellers has tendered votes in respect give away or otherwise dispose of the Shares underlying to any person (other than the Sale Netcom ADSs in favour of the resolution approving the scheme of arrangement under section 166 of the Companies Ordinance (Cap 32 of the Laws of Hong Kong) between the Company and the shareholders of the Company at the extraordinary general meeting of the Company to be held on 17 September 2008, and any adjournment thereof;
5.4.9 the execution and delivery of, and the performance by each of the Sellers of Obligee or its obligations under, this Agreement and any other documents to be executed by it pursuant to or in connection with this Agreement will not:
(a) result in a breach of any provision of the constitutional or organisational documents of each of the Sellersnominee);
(b3) result in a breach Upon occurrence of any event or give receipt of any notice which likely affects the Obligors, Shares or the rights therein or change any obligation of the Obligors hereunder or the performance of any obligation of the Obligors hereunder, the Obligors will promptly notify the Obligee and take all actions and measures according to the reasonable instructions of the Obligee;
(4) Other than the Option granted to the Obligee hereunder, without the prior written consent of the Obligee, the Obligors may not grant any option or any other preemptive right to any third party a right to terminate or modify, or result in the creation of any Encumbrance under, any agreement, licence or other instrument or result in a breach of any order, judgment or decree of any court, governmental agency or regulatory body to which each of the Sellers or its nominee is a party or by which any of the Sellers or its nominee or any of their respective assets is bound; or
(c) result in any breach of any contractual covenants or investment management agreement to which each of the Sellers is subject;
5.4.10 each of the Sellers is not a “connected fund manager” (as defined in the Takeovers Code) or a “connected principal trader” (as defined in the Takeovers Code) of the offeror (i.e. Unicom) or the offeree company (i.e. the Company) nor a party acting in concert with the offeror and that consent from the Executive Director of the Corporate Finance Division of the Securities & Futures Commission is not required for the sale of the Sale Shares;
5.4.11 each of the Sellers is not required to obtain any other person’s consent in relation to the sale of the Sale Shares, the New Unicom Shares and the New Unicom ADSs;
5.4.12 each of the Sellers is not a connected person (as such term is defined in the Rules Governing the Listing of Securities on The Hong Kong Stock Exchange Limited) of the Company or Unicom;
5.4.13 no petition has been presented or order made and no meeting convened or resolution passed for the winding up or administration of any of the Sellers or for a provisional liquidator to be appointed in respect of any of the Sellers;
5.4.14 no distress, execution or other process has been levied on any of the assets of any of the Sellers, and no judgment creditor nor any liquidator, provisional liquidator, receiver or an administrative receiver of any of the Sellers has been appointed and there is no reason to believe that such a person might be appointed;
5.4.15 no voluntary arrangement has been proposed in respect of any of the Sellers and their creditors; and
5.4.16 each of the Sellers is not insolvent, or unable to pay its debts, and has not stopped paying its debts as they fall due, and no event analogous to any of the foregoing has occurred in or outside Hong Kongparty.
5.5 The Buyer represents and warrants to the Sellers that each Buyer Warranty is true, accurate and not misleading at the date of this Agreement. Immediately before Closing, the Buyer is deemed to warrant to the Sellers that each Buyer Warranty is true, accurate and not misleading by reference to the facts and circumstances on each day before Closing, and for this purpose only, any references in the Buyer Warranties to the date of this Agreement shall be construed as references to the relevant date. Unless otherwise set out in this Agreement, no other warranty is given by the Buyer.
5.6 The Buyer acknowledges that each of the Sellers is entering into this Agreement in reliance on each Buyer Warranty which has also been given as a representation and with the intention of inducing the Sellers to enter into this Agreement. The Buyer shall not invoke the Sellers’ constructive or imputed knowledge of a fact or circumstance which might make a Buyer Warranty untrue, inaccurate or misleading as a defence to a claim for breach of Clause 5.5.
5.7 The Buyer represents and warrants to the Sellers that:
5.7.1 the Buyer is a corporation duly organized and validly existing under the laws of its country of origin;
5.7.2 the Buyer has the legal right, full power and authority, and has taken all action necessary, to execute, deliver and to exercise its rights, and perform its obligations, under this Agreement and any other documents to be executed by the Buyer pursuant to or in connection with this Agreement, which when executed will constitute valid and binding obligations on the Buyer;
5.7.3 the execution and delivery of, and the performance by the Buyer of its obligations under, this Agreement and any other documents to be executed by it pursuant to or in connection with this Agreement will not:
(a) result in a breach of any provision of the constitutional or organisational documents of the Buyer; or
(b) result in a breach of or give any third party a right to terminate or modify, or result in the creation of any Encumbrance under, any agreement, licence or other instrument or result in a breach of any order, judgment or decree of any court, governmental agency or regulatory body to which the Buyer or its nominee is a party or by which any of the Buyer or its nominee or any of their respective assets is bound;
5.7.4 the Buyer is not required to obtain any other person’s consent in relation to the acquisition of the Sale Shares;
5.7.5 no petition has been presented or order made and no meeting convened or resolution passed for the winding up or administration of the Buyer or for a provisional liquidator to be appointed in respect of the Buyer;
5.7.6 no distress, execution or other process has been levied on any of the assets of the Buyer, and no judgment creditor nor any liquidator, provisional liquidator, receiver or an administrative receiver of the Buyer has been appointed and there is no reason to believe that such a person might be appointed;
5.7.7 no voluntary arrangement has been proposed in respect of the Buyer and its creditors; and
5.7.8 the Buyer is not insolvent, or unable to pay its debts, and has not stopped paying its debts as they fall due, and no event analogous to any of the foregoing has occurred in or outside Hong Kong.
5.8 Each of the Sellers undertakes to the Buyer that it shall not dispose of or enter into any agreement or arrangement to dispose of or permit the disposal of any of the Sale Shares, the disposal of which is subject to its discretion from the date of this Agreement and until the Long Stop Date or the date when this Agreement is terminated in accordance with Clause 3.3, whichever is earlier.
5.9 Each of the Sellers further undertakes to the Buyer that it shall exercise or procure to be exercised all the voting rights attaching to the Sale Listed Shares in favour of the resolution approving the Scheme and the Share Proposal at the shareholders’ meeting of the Company to be held on 17 September 2008, and any adjournment thereof.
Appears in 1 contract
Samples: Option Agreement (China Mobile Games & Entertainment Group LTD)
REPRESENTATIONS, WARRANTIES AND UNDERTAKINGS. 5.1 Each of the Sellers 10.1. The Company represents and warrants to and (where applicable) undertakes with the Buyer that each Seller Warranty is trueUnderwriter in the following terms:
(i) the facts stated in the Recitals of this Agreement are true and accurate in all material respects;
(ii) all statements of fact contained or to be contained in the Announcement, the Circular and the Prospectus Documents relating to the Company and to the Group are and will at the date of issue thereof be true and accurate and not misleading in all material respects and all expressions of opinion, intention and expectation expressed therein are and will be fair and made after due and careful consideration;
(iii) there will be no information relating to the Company and to the Group not disclosed in the Announcement, the Circular and the Prospectus Documents:
(a) the omission of which makes any statement therein misleading in any material respect or which, in the context of the issue of the Rights Shares, might be material for disclosure therein; or (b) which is necessary to enable investors to make an informed assessment of the activities, assets and liabilities, financial position, management, profits and losses and prospects of the Group and of the rights attaching to the Rights Shares;
(iv) subject to matters disclosed in the Company’s announcements, circulars and documents issued and published to the public since the Audited Accounts Date, the audited consolidated balance sheet of the Group as at the Audited Accounts Date, the audited consolidated profit and loss account of the Group for the financial year ended on such date (including the notes thereto) were prepared in accordance with the applicable law and on a basis consistent with that adopted in preparing the audited accounts for the previous two financial years in accordance with accounting principles, standards and practices generally accepted in Hong Kong so as to give (except to the extent (if any) disclosed therein) a true and fair view of this Agreementthe state of affairs of the Group as at the relevant dates and the profit or loss of the Group for the relevant financial periods. Immediately before ClosingSubject to matters disclosed in the Company’s announcements, circulars and documents issued and published to the public since the Audited Accounts Date, there has been no material adverse change in the financial or trading position of the Group since the Audited Accounts Date;
(v) the returns for taxation purposes, which ought to have been made by or in respect of the companies in the Group in Hong Kong and any other part of the world, have been duly made and to the best of knowledge of the Company there are no circumstances known to any company in the Group or any of their respective directors, after making due and careful enquiry, which might be the occasion of any dispute with the relevant revenue or other appropriate authorities which is materially adverse to the Group and all such returns are in all material respects up to date, correct and on a proper basis and are not the subject of any material dispute with the relevant revenue or other appropriate authorities;
(vi) there are existing valid policies of insurance against all liabilities, risks and losses against which it is necessary and customary to insure in respect of all major property and assets owned by and all businesses carried on by the companies in the Group and nothing has been done or has been omitted to be done whereby any of the said policies has or may become void or is likely to be avoided;
(vii) the statements, forecasts, estimates and expressions of opinion, intention and expectation to be contained in the Announcement, the Circular or the Prospectus Documents will at the respective dates of issue thereof be made after due and proper consideration, will at the respective dates of issue thereof be fair and honest and represent reasonable expectations based on facts known or which on reasonable enquiry ought to have been known to the Company and/or the Directors or any of them;
(viii) all information necessary for the purpose of, or in the course of preparation of, the Announcement, the Circular and the Prospectus Documents, was so disclosed or made available to the Underwriter or its legal advisers fully, fairly and accurately;
(ix) each of the Sellers is deemed to warrant to the Buyer that each Seller Warranty is true, accurate and not misleading by reference to the facts and circumstances on each day before Closing, and for this purpose only any references companies in the Seller Warranties to the date of this Agreement shall be construed as references to the relevant date. Unless otherwise set out Group is duly incorporated in this Agreement, no other warranty is given by the Sellers.
5.2 Each of the Sellers acknowledges that the Buyer is entering into this Agreement in reliance on each Seller Warranty which has also been given as a representation and with the intention of inducing the Buyer to enter into this Agreement. The Sellers shall not invoke the Buyer’s constructive or imputed knowledge of a fact or circumstance which might make a Seller Warranty untrue, inaccurate or misleading as a defence to a claim for breach of Clause 5.1.
5.3 Each Seller Warranty is to be construed independently and (except where this Agreement provides otherwise) is not limited by a provision of this Agreement or another Warranty.
5.4 Each of the Sellers represents and warrants to the Buyer that:
5.4.1 each of the Sellers is an entity duly organized and validly existing under the laws of its country place of origin;
5.4.2 each of the Sellers incorporation and has the legal right, full power and authority, and has taken all action necessary, authority to execute, deliver and to exercise conduct its rights, and perform its obligations, under this Agreement and any other documents to be executed by each of the Sellers pursuant to or in connection with this Agreement, which when executed will constitute valid and binding obligations on each Seller and its asset management clients for whose account the Sale Shares are managed and who are the beneficial ownersbusiness as now carried on;
5.4.3 (x) saved as disclosed, neither the Sale Shares are beneficially owned by the Sellers’ asset management clients Company nor any of its subsidiaries is engaged in managed accounts over which the Sellers have investment discretion. To the best any litigation, arbitration, prosecution or other legal proceeding of the Sellers’ knowledgematerial importance nor, there is no other person who has any legal or beneficial interest in the Sale Shares;
5.4.4 each of the Sellers is validly appointed as discretionary investment manager by the beneficial owners in respect of the Sale Shares;
5.4.5 the Sale Shares are beneficially owned by the Sellers’ asset management clients; to the best of the Sellers’ knowledgeCompany’s knowledge (after due and careful enquiry), is there any such proceeding pending or threatened against the beneficial owners Company or any of its subsidiaries, nor is there any claim or fact likely to give rise to any claim which in any such case may have or has had a material adverse effect on the financial position of the Sale Shares Company and its subsidiaries taken as a whole or which may have or has had a material adverse effect in the full legal right to sell context of the Sale Shares and which are free from any EncumbrancesRights Issue;
5.4.6 upon completion (xi) except as has been disclosed by the Company by public announcements to Shareholders, neither the Company nor any of its subsidiaries has entered into any contract or commitment of an unusual or onerous nature which, in the Schemecontext of Rights Issue, the Sellers’ asset management clients will might be the sole beneficial owners of the New Unicom Shares and the New Unicom ADSsmaterial for disclosure;
5.4.7 (xii) each of the Sellers has not created or permitted the creation of any Encumbrance nor entered into any agreement, arrangement or obligation to create or give an Encumbrance, in relation to any of the Sale Shares, the New Unicom Shares and/or the New Unicom ADSs, and to the best of the Sellers’ knowledge, no person has claimed to be entitled to an Encumbrance in relation to any of the Sale Shares, the New Unicom Shares and/or the New Unicom ADSs;
5.4.8 to the extent it held proxy voting authority, each of the Sellers has tendered votes in respect of the Shares underlying the Sale Netcom ADSs in favour of the resolution approving the scheme of arrangement under section 166 of the Companies Ordinance (Cap 32 of the Laws of Hong Kong) between the Company and the shareholders of the Company at the extraordinary general meeting of the Company to be held its subsidiaries has carried on 17 September 2008, and any adjournment thereof;
5.4.9 the execution and delivery of, and the performance by each of the Sellers of its obligations under, this Agreement and any other documents to be executed by it pursuant to or in connection with this Agreement will not:
(a) result in a breach of any provision of the constitutional or organisational documents of each of the Sellers;
(b) result in a breach of or give any third party a right to terminate or modify, or result business in the creation of any Encumbrance under, any agreement, licence or other instrument or result in a breach of any order, judgment or decree of any court, governmental agency or regulatory body to which each of the Sellers or its nominee is a party or by which any of the Sellers or its nominee or any of their respective assets is bound; or
(c) result in any breach of any contractual covenants or investment management agreement to which each of the Sellers is subject;
5.4.10 each of the Sellers is not a “connected fund manager” (as defined ordinary and usual course and there has been no material adverse change in the Takeovers Code) financial or a “connected principal trader” (as defined in the Takeovers Code) of the offeror (i.e. Unicom) or the offeree company (i.e. the Company) nor a party acting in concert with the offeror and that consent from the Executive Director of the Corporate Finance Division of the Securities & Futures Commission is not required for the sale of the Sale Shares;
5.4.11 each of the Sellers is not required to obtain any other person’s consent in relation to the sale of the Sale Shares, the New Unicom Shares and the New Unicom ADSs;
5.4.12 each of the Sellers is not a connected person (as such term is defined in the Rules Governing the Listing of Securities on The Hong Kong Stock Exchange Limited) trading position of the Company or Unicomany of its subsidiaries which has not been fully and properly disclosed by the Company in accordance with the Listing Rules or otherwise as required by the Listing Rules;
5.4.13 (xiii) no petition order has been presented or order made and no meeting convened or resolution has been passed for the winding up or administration of any of the Sellers of, or for a provisional liquidator to be appointed in respect of, the Company or any of its subsidiaries, and no petition has been presented and no meeting has been convened for the purpose of winding up any of the Sellers;
5.4.14 same; no distress, execution or other process has been levied on any of the assets of any of the Sellers, and no judgment creditor nor any liquidator, provisional liquidator, receiver or an administrative receiver of any of the Sellers has been appointed and there is no reason to believe that such a person might be appointed;
5.4.15 no voluntary arrangement has been proposed in respect of the Company or any of the Sellers and their creditorsits subsidiaries or all or any of its assets; and
5.4.16 each none of the Sellers Company or any of its subsidiaries is not insolvent, or unable to pay its debtsdebts within the meaning of section 178 of the Companies (Winding Up and Miscellaneous Provisions) Ordinance, and or has not stopped paying its debts as they fall due; and no unsatisfied judgment which is materially adverse to the condition of the Company is outstanding against the Company or any of its subsidiaries;
(xiv) the Announcement, the Circular and the Prospectus Documents will contain all particulars and information required by, and will be in accordance with the Companies (Winding Up and Miscellaneous Provisions) Ordinance, the Companies Ordinance, the Listing Rules, the rules and regulations of the Stock Exchange and all other relevant statutory provisions and governmental regulations in Hong Kong and Bermuda (where applicable) and shall not involve any breach of or default under any agreement, trust deed or instrument to which any member of the Group is a party;
(xv) no material outstanding indebtedness or guarantee or indemnity of any liability of the Company or any of its subsidiaries has become payable by reason of default by the Company or any of its subsidiaries and no event has occurred or is pending which with the lapse of time or the fulfilment of any condition or the giving of notice or the compliance with any other formality may result in any such indebtedness or guarantee or indemnity of any liability becoming so payable;
(xvi) the Company shall not, from the date hereof until completion of the Rights Issue, save for the purpose of implementing the Capital Reorganisation :
(a) issue any Shares;
(b) issue or grant any options or other securities convertible into, exchangeable for or which carry rights to acquire Shares; or
(c) repurchase any Shares;
(xvii) on the date of issue of the Rights Shares, the Company will have the power under its Bye-laws, will have taken all necessary corporate or other action to enable it to, and no event analogous other consents, actions, authorisations or approvals are necessary to enable or authorise it other than the obtaining of consents and approvals referred to in Clause 2.1:
(a) to issue and allot the Rights Shares in accordance with the Prospectus Documents without any sanction; and
(b) to enter into and perform its obligations under this Agreement and to make the Rights Issue.
(xviii) the Rights Shares, when allotted and issued, will be issued free from all liens, charges, encumbrances and third party rights, interests or claims of any nature whatsoever and will rank pari passu in all respects among themselves and with the Shares then in issue on the date of allotment and issue of the foregoing has occurred Rights Shares; and
(xix) the obligations of the Company under this Agreement constitute legally valid and binding obligations of the Company enforceable in or outside Hong Kongaccordance with the terms herein.
5.5 10.2. The Buyer represents and warrants Company agrees to use all reasonable endeavours not to cause or permit any Specified Event to occur prior to the Sellers that each Buyer Warranty is trueLatest Time for Termination. Each of the representations, accurate warranties and undertaking contained in Clause 10.1 shall be construed separately and shall not misleading at be limited or restricted by reference to or inference from the date terms of any other of the representations, warranties and undertaking or any other terms of this Agreement. Immediately before ClosingIf this Agreement is not rescinded pursuant to Clause 12, the Buyer is all such warranties, representations and undertakings as are contained in Clause 10.1 above shall be deemed to warrant to have been repeated as at the Sellers that each Buyer Warranty is true, accurate and not misleading by Latest Time for Termination with reference to the facts and circumstances on each day before Closingthen subsisting, and for this purpose only, any references in the Buyer Warranties to the date of this Agreement shall be construed as provided that references to the relevant date. Unless otherwise set out future tense in this AgreementClause 10.1 (ii), no other warranty is given by (iii) and (xiv) shall be deemed to be the Buyerpresent tense as appropriate.
5.6 The Buyer acknowledges that each of the Sellers is entering into this Agreement in reliance on each Buyer Warranty which has also been given as a representation and with the intention of inducing the Sellers to enter into this Agreement10.3. The Buyer If any Specified Event shall not invoke the Sellers’ constructive occur or imputed knowledge of a fact or circumstance which might make a Buyer Warranty untrue, inaccurate or misleading as a defence to a claim for breach of Clause 5.5.
5.7 The Buyer represents and warrants come to the Sellers that:
5.7.1 the Buyer is a corporation duly organized and validly existing under the laws of its country of origin;
5.7.2 the Buyer has the legal right, full power and authority, and has taken all action necessary, to execute, deliver and to exercise its rights, and perform its obligations, under this Agreement and any other documents to be executed by the Buyer pursuant to or in connection with this Agreement, which when executed will constitute valid and binding obligations on the Buyer;
5.7.3 the execution and delivery of, and the performance by the Buyer of its obligations under, this Agreement and any other documents to be executed by it pursuant to or in connection with this Agreement will not:
(a) result in a breach of any provision of the constitutional or organisational documents of the Buyer; or
(b) result in a breach of or give any third party a right to terminate or modify, or result in the creation of any Encumbrance under, any agreement, licence or other instrument or result in a breach of any order, judgment or decree of any court, governmental agency or regulatory body to which the Buyer or its nominee is a party or by which any of the Buyer or its nominee or any of their respective assets is bound;
5.7.4 the Buyer is not required to obtain any other person’s consent in relation to the acquisition of the Sale Shares;
5.7.5 no petition has been presented or order made and no meeting convened or resolution passed for the winding up or administration of the Buyer or for a provisional liquidator to be appointed in respect of the Buyer;
5.7.6 no distress, execution or other process has been levied on any of the assets of the Buyer, and no judgment creditor nor any liquidator, provisional liquidator, receiver or an administrative receiver of the Buyer has been appointed and there is no reason to believe that such a person might be appointed;
5.7.7 no voluntary arrangement has been proposed in respect of the Buyer and its creditors; and
5.7.8 the Buyer is not insolvent, or unable to pay its debts, and has not stopped paying its debts as they fall due, and no event analogous to any of the foregoing has occurred in or outside Hong Kong.
5.8 Each of the Sellers undertakes to the Buyer that it shall not dispose of or enter into any agreement or arrangement to dispose of or permit the disposal of any of the Sale Shares, the disposal of which is subject to its discretion from the date of this Agreement and until the Long Stop Date or the date when this Agreement is terminated in accordance with Clause 3.3, whichever is earlier.
5.9 Each of the Sellers further undertakes to the Buyer that it shall exercise or procure to be exercised all the voting rights attaching to the Sale Listed Shares in favour of the resolution approving the Scheme and the Share Proposal at the shareholders’ meeting knowledge of the Company prior to be held on 17 September 2008the Latest Time for Termination, and any adjournment thereofit shall forthwith give notice to the Underwriter of the same.
Appears in 1 contract
Samples: Underwriting Agreement
REPRESENTATIONS, WARRANTIES AND UNDERTAKINGS. 5.1 7.1 Each of the Sellers Vendor and the Vendor Guarantor hereby jointly and severally represents and warrants and undertakes to the Buyer Purchaser and the Purchaser Guarantor that each Seller Warranty is true, all representations and warranties set out in Part A of Schedule 2 or otherwise contained in this Agreement are and will be true and accurate and not misleading as at the date of this Agreement. Immediately before Closing, each of hereof and as at all times up to and including the Sellers is deemed to warrant to the Buyer that each Seller Warranty is true, accurate and not misleading by Completion Date with reference to the facts and circumstances on each day before Closing, subsisting at such time.
7.2 Each of the Purchaser and for this purpose only any references in the Seller Warranties Purchaser Guarantor hereby jointly and severally represents and warrants and undertakes to the date of this Agreement shall be construed as references to Vendor and the relevant date. Unless otherwise Vendor Guarantor that all representations and warranties set out in Part B of Schedule 2 or otherwise contained in this Agreement, no other warranty is given by Agreement are and will be true and accurate and not misleading as at the Sellersdate hereof and as at all times up to and including the Completion Date with reference to the facts and circumstances subsisting at such time.
5.2 7.3 Each of the Sellers Vendor and the Vendor Guarantor acknowledges that each of the Buyer is entering Purchaser and the Purchaser Guarantor has entered into this Agreement in reliance on each Seller Warranty which has also been given as a representation the Vendor Warranties and with none of the intention Vendor Warranties shall be limited or restricted by reference to or inference from the terms of inducing the Buyer to enter into this Agreement. The Sellers shall not invoke the Buyer’s constructive any other Warranties or imputed knowledge of a fact or circumstance which might make a Seller Warranty untrue, inaccurate or misleading as a defence to a claim for breach of Clause 5.1.
5.3 Each Seller Warranty is to be construed independently and (except where this Agreement provides otherwise) is not limited by a provision any other term of this Agreement or another Warrantyother document referred to herein and therein.
5.4 7.4 Each of the Sellers represents and warrants to the Buyer that:
5.4.1 each of the Sellers is an entity duly organized and validly existing under the laws of its country of origin;
5.4.2 each of the Sellers has the legal right, full power and authority, and has taken all action necessary, to execute, deliver and to exercise its rights, and perform its obligations, under this Agreement and any other documents to be executed by each of the Sellers pursuant to or in connection with this Agreement, which when executed will constitute valid and binding obligations on each Seller and its asset management clients for whose account the Sale Shares are managed and who are the beneficial owners;
5.4.3 the Sale Shares are beneficially owned by the Sellers’ asset management clients in managed accounts over which the Sellers have investment discretion. To the best of the Sellers’ knowledge, there is no other person who has any legal or beneficial interest in the Sale Shares;
5.4.4 each of the Sellers is validly appointed as discretionary investment manager by the beneficial owners in respect of the Sale Shares;
5.4.5 the Sale Shares are beneficially owned by the Sellers’ asset management clients; to the best of the Sellers’ knowledge, the beneficial owners of the Sale Shares have the full legal right to sell the Sale Shares and which are free from any Encumbrances;
5.4.6 upon completion of the Scheme, the Sellers’ asset management clients will be the sole beneficial owners of the New Unicom Shares Purchaser and the New Unicom ADSs;
5.4.7 each of the Sellers has not created or permitted the creation of any Encumbrance nor entered into any agreement, arrangement or obligation to create or give an Encumbrance, in relation to any of the Sale Shares, the New Unicom Shares and/or the New Unicom ADSs, and to the best of the Sellers’ knowledge, no person has claimed to be entitled to an Encumbrance in relation to any of the Sale Shares, the New Unicom Shares and/or the New Unicom ADSs;
5.4.8 to the extent it held proxy voting authority, each of the Sellers has tendered votes in respect of the Shares underlying the Sale Netcom ADSs in favour of the resolution approving the scheme of arrangement under section 166 of the Companies Ordinance (Cap 32 of the Laws of Hong Kong) between the Company and the shareholders of the Company at the extraordinary general meeting of the Company to be held on 17 September 2008, and any adjournment thereof;
5.4.9 the execution and delivery of, and the performance by each of the Sellers of its obligations under, this Agreement and any other documents to be executed by it pursuant to or in connection with this Agreement will not:
(a) result in a breach of any provision of the constitutional or organisational documents of each of the Sellers;
(b) result in a breach of or give any third party a right to terminate or modify, or result in the creation of any Encumbrance under, any agreement, licence or other instrument or result in a breach of any order, judgment or decree of any court, governmental agency or regulatory body to which each of the Sellers or its nominee is a party or by which any of the Sellers or its nominee or any of their respective assets is bound; or
(c) result in any breach of any contractual covenants or investment management agreement to which each of the Sellers is subject;
5.4.10 each of the Sellers is not a “connected fund manager” (as defined in the Takeovers Code) or a “connected principal trader” (as defined in the Takeovers Code) of the offeror (i.e. Unicom) or the offeree company (i.e. the Company) nor a party acting in concert with the offeror and that consent from the Executive Director of the Corporate Finance Division of the Securities & Futures Commission is not required for the sale of the Sale Shares;
5.4.11 each of the Sellers is not required to obtain any other person’s consent in relation to the sale of the Sale Shares, the New Unicom Shares and the New Unicom ADSs;
5.4.12 each of the Sellers is not a connected person (as such term is defined in the Rules Governing the Listing of Securities on The Hong Kong Stock Exchange Limited) of the Company or Unicom;
5.4.13 no petition has been presented or order made and no meeting convened or resolution passed for the winding up or administration of any of the Sellers or for a provisional liquidator to be appointed in respect of any of the Sellers;
5.4.14 no distress, execution or other process has been levied on any of the assets of any of the Sellers, and no judgment creditor nor any liquidator, provisional liquidator, receiver or an administrative receiver of any of the Sellers has been appointed and there is no reason to believe that such a person might be appointed;
5.4.15 no voluntary arrangement has been proposed in respect of any of the Sellers and their creditors; and
5.4.16 each of the Sellers is not insolvent, or unable to pay its debts, and has not stopped paying its debts as they fall due, and no event analogous to any of the foregoing has occurred in or outside Hong Kong.
5.5 The Buyer represents and warrants to the Sellers that each Buyer Warranty is true, accurate and not misleading at the date of this Agreement. Immediately before Closing, the Buyer is deemed to warrant to the Sellers that each Buyer Warranty is true, accurate and not misleading by reference to the facts and circumstances on each day before Closing, and for this purpose only, any references in the Buyer Warranties to the date of this Agreement shall be construed as references to the relevant date. Unless otherwise set out in this Agreement, no other warranty is given by the Buyer.
5.6 The Buyer Purchaser Guarantor acknowledges that each of the Sellers is entering Vendor and the Vendor Guarantor has entered into this Agreement in reliance on each Buyer Warranty which has also been given the Purchaser Warranties and none of the Purchaser Warranties shall be limited or restricted by reference to or inference from the terms of any other Warranties or any other term of this Agreement or other document referred to herein and therein.
7.5 If the Purchaser is required by law to make any payment on account of tax or otherwise, from any amount received or receivable from the Vendor as a representation and with the intention result of inducing the Sellers to enter into this Agreement. The Buyer shall not invoke the Sellers’ constructive or imputed knowledge of a fact or circumstance which might make a Buyer Warranty untrue, inaccurate or misleading as a defence to a claim for breach of Clause 5.5.
5.7 The Buyer represents and warrants to the Sellers that:
5.7.1 the Buyer is a corporation duly organized and validly existing under the laws of its country of origin;
5.7.2 the Buyer has the legal right, full power and authority, and has taken all action necessary, to execute, deliver and to exercise its rights, and perform its obligations, under this Agreement and any other documents to be executed by the Buyer pursuant to or in connection with this Agreement, which when executed will constitute valid and binding obligations on the Buyer;
5.7.3 the execution and delivery of, and the performance by the Buyer of its obligations under, this Agreement and any other documents to be executed by it pursuant to or in connection with this Agreement will not:
(a) result in a breach of the Vendor Warranties then the amount so payable by the Vendor shall be increased to the extent necessary such that, after the making of that payment, the Purchaser receives and retains (free from any provision liability in respect of that deduction) a net amount equal to the constitutional amount which it would have received and so retained had no such payment been made.
7.6 If the Vendor is required by law to make any payment on account of tax or organisational documents otherwise, from any amount received or receivable from the Purchaser as a result of the Buyer; or
(b) result in a breach of or give any third party a right to terminate or modify, or result in the creation of any Encumbrance under, any agreement, licence or other instrument or result in a breach of any order, judgment or decree of any court, governmental agency or regulatory body to which Purchaser Warranties then the Buyer or its nominee is a party or amount so payable by which any of the Buyer or its nominee or any of their respective assets is bound;
5.7.4 the Buyer is not required to obtain any other person’s consent in relation Purchaser shall be increased to the acquisition extent necessary such that, after the making of that payment, the Sale Shares;
5.7.5 no petition has been presented or order made Vendor receives and no meeting convened or resolution passed for the winding up or administration of the Buyer or for a provisional liquidator to be appointed retains (free from any liability in respect of the Buyer;
5.7.6 no distress, execution or other process has been levied on any of the assets of the Buyer, and no judgment creditor nor any liquidator, provisional liquidator, receiver or an administrative receiver of the Buyer has been appointed and there is no reason to believe that such deduction) a person might be appointed;
5.7.7 no voluntary arrangement has been proposed in respect of the Buyer and its creditors; and
5.7.8 the Buyer is not insolvent, or unable to pay its debts, and has not stopped paying its debts as they fall due, and no event analogous to any of the foregoing has occurred in or outside Hong Kong.
5.8 Each of the Sellers undertakes net amount equal to the Buyer that amount which it shall not dispose of or enter into any agreement or arrangement to dispose of or permit the disposal of any of the Sale Shares, the disposal of which is subject to its discretion from the date of this Agreement would have received and until the Long Stop Date or the date when this Agreement is terminated in accordance with Clause 3.3, whichever is earlierso retained had no such payment been made.
5.9 Each of the Sellers further undertakes to the Buyer that it shall exercise or procure to be exercised all the voting rights attaching to the Sale Listed Shares in favour of the resolution approving the Scheme and the Share Proposal at the shareholders’ meeting of the Company to be held on 17 September 2008, and any adjournment thereof.
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Samples: Sale and Purchase Agreement