Selling Shareholder’s Representations and Warranties. The Selling Shareholder represents and warrants to, and agrees with the Placement Agent that: (i) the Selling Shareholder owns the number of Shares of the Company set forth opposite its name on Schedule A hereto, (ii) to the Selling Shareholder's knowledge, the Offered Shares have been duly and validly authorized and issued, are fully paid up and non-assessable, and rank pari passu in all respects with the other issued Shares and (iii) were allotted and issued by the Company more than six months prior to the date hereof; (b) this Placement Agreement has been duly authorized, executed and delivered by the Selling Shareholder and is enforceable against the Selling Shareholder in accordance with its own terms; (c) the Selling Shareholder is duly incorporated and validly existing under the laws of the place of its incorporation and has full right, authority and power to enter into and perform its obligations under this Placement Agreement and to sell, assign, transfer and deliver the Offered Shares to the Placement Agent for transfer to the purchasers procured by the Placement Agent; (d) the Selling Shareholder has, and immediately prior to the Closing Date (as defined herein) will have, good and valid title to the Offered Shares, free and clear of all liens, encumbrances or claims; upon delivery of such Offered Shares, good and valid title thereto, free and clear of all liens, encumbrances or claims, will be transferred to the purchasers procured by the Placement Agent; (e) no consent, approval, authorization, or order of, or filing with, any governmental agency or body, any court, shareholder of the Company or any other third party is required to be obtained or made by such Selling Shareholder for the consummation of the transactions contemplated by this Placement Agreement in connection with the sale of the Offered Shares, other than those consents, approvals and authorizations that have been obtained which consents, approvals and authorizations shall remain valid until Closing; (f) the execution of this Placement Agreement, the offer, sale and delivery by the Selling Shareholder of the Offered Shares and the consummation of the transactions contemplated by this Placement Agreement do not conflict with or result in a breach or violation of any of the terms or provisions of, require any third party consent or constitute a default under any indenture, mortgage, deed of trust, loan agreement or other agreement or instrument, decree, regulation or law to which the Selling Shareholder is a party or by which the Selling Shareholder is bound or to which any of the property or assets of the Selling Shareholder is subject, or any of the provisions of the Articles of Association (or similar instrument) of the Selling Shareholder or any statute or any order, law, rule or regulation, judgment, order or decree of any court, government or governmental agency or body having jurisdiction over the Selling Shareholder or the property or assets of the Selling Shareholder or violation by the Selling Shareholder or its representatives on the board of directors of the Company of the Rules Governing the Listing of Securities on the Stock Exchange or any of the internal policies or guidelines of the Company or the Securities and Futures Ordinance (Cap.571 of the Laws of Hong Kong) (the "SFO"), except to the extent that any breach or violation of any loan agreement or other agreement (but not any indenture, mortgage, deed of trust, decree, regulation or law) would not result in a material adverse change, in or affecting the business, assets or property of the Selling Shareholder; (g) other than Hong Kong stamp tax of as set forth in Section 3(a)(ii), no stamp or other issuance or transfer taxes or duties, and no indirect taxes or duties are payable by the purchasers procured by the Placement Agent or the Placement Agent, as the case may be, to Hong Kong or any political subdivision or taxing authority thereof or therein in connection with the sale and delivery of the Offered Shares; (h) neither the Selling Shareholder nor any of its representatives on the board of directors of the Company (i) is in possession or aware of any material or "price sensitive" information (including, without limitation, any information regarding any changes in the business and prospects of the Company or any adverse change or prospective adverse change in the condition of, or any actual, pending or threatened litigation, arbitration or similar proceeding involving, the Company) that is not described in the Company's most recent annual report or subsequent public information releases (the "Company Information") and (ii) has been and will be in contravention of Part XIV of the SFO or other applicable law or regulations prohibiting "insider dealing" in securities in connection with the offer and sale of the Offered Shares. The Selling Shareholder has read the Company Information and, to the best of the Selling Shareholder's knowledge, it does not include any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein not misleading. The Company, to the knowledge of the Selling Shareholder, is in compliance with the rules and regulations, including the reporting requirements, of Hong Kong and the United States; (i) the offer and sale of the Offered Shares in the manner contemplated by this Placement Agreement will be exempt from the registration requirements of the U.S. Securities Act of 1933, as amended ("Securities Act"); (j) neither the Selling Shareholder, nor any of its affiliates or any person acting on its or their behalf has engaged or will engage in any directed selling efforts (as such term is defined in Regulation S under the Securities Act ("Regulation S")) in connection with the offer and sale of the Offered Shares, and all such persons have complied and will comply with the offering restrictions requirement of Regulation S to the extent applicable to the offer and sale of the Offered Shares; provided that this representation shall not be deemed to be made in respect of actions taken by the Placement Agent regarding the Offered Shares; (k) neither the Selling Shareholder nor its affiliates nor any persons acting on its or their behalf has engaged in or will engage in any form of general solicitation or general advertising (as those terms are used in Regulation D promulgated under the Securities Act) with respect to offers or sales of the Offered Shares in the United States; (1) the Company is a Foreign Issuer (as that term is defined in Rule 902 of Regulation S) and the Selling Shareholder reasonably believes that on the commencement of the offering of the Offered Shares there was no Substantial U.S. Market Interest (as that term is defined in Rule 902 of Regulation S) in the Offered Shares; (m) neither the Selling Shareholder nor any of its affiliates nor any person acting on its or their behalf has sold, offered for sale or solicited an offer to buy or otherwise negotiated or will sell, offer for sale or solicit an offer to buy or otherwise negotiate in respect of any security which would be integrated with the sale of the Offered Shares that would require registration of any of the Offered Shares under the Securities Act; (n) the Company is not, and as a result of the sale of the Offered Shares contemplated hereby will not be, subject to regulation as an "investment company" as defined under the United States Investment Company Act of 1940, as amended; (o) the Shares are listed on The New York Stock Exchange; (p) neither the Selling Shareholder nor any of its affiliates nor any person acting on its or their behalf has or will have, directly or indirectly, bid for, purchased or attempted to induce any person to bid for or purchased any Shares or any securities which may, in the whole or in part, affect the value of the Shares; (q) none of the Selling Shareholder, any of its subsidiaries or any director, officer, agent, employee or affiliate of the Selling Shareholder or any of its subsidiaries is currently subject to any U.S. sanctions administered by the Office of Foreign Assets Control of the U.S. Department of the Treasury ("OFAC"); and the Selling Shareholder will not directly or indirectly use (or authorize or enable others to use) the proceeds of the offering of the Offered Shares hereunder, or lend, contribute or otherwise make available such proceeds to any subsidiary, joint venture partner or other person or entity, for the purpose of financing or otherwise furthering the activities of any person subject to any U.S. sanctions administered by OFAC; (r) none of the Selling Shareholder, any of its subsidiaries or any director, officer, agent, employee or affiliate of the Selling Shareholder or any of its subsidiaries does any business with countries, entities or persons subject to any U.S. sanctions administered by the OFAC, or to any enabling legislation or executive order relating thereto, or any person or entity in those countries or with those persons, or perform contracts in support of projects in or for the benefit of those countries or those persons; (s) all statements of fact contained in any Announcement (as defined in Section "Announcements" below) with respect to the Selling Shareholder are true and accurate in all material respects, and are not misleading in any material respect, and there are no facts or matters which are not disclosed in the Announcement the omission of which makes the Announcement misleading in any material respect and all statements and expressions of opinions, intention or expectation therein are made on reasonable grounds (after due and proper consideration) and are fairly based and honestly held and the Selling Shareholder does not disagree in any material respect with any such statements or expressions; (t) the Selling Shareholder does not have rights to a claim of sovereign immunity with respect to or arising from its obligations to the Placement Agent herein; and (u) the Selling Shareholder has the power to submit, and pursuant to Section 11 of this Placement Agreement, has legally, validly, effectively and irrevocably submitted, to the jurisdiction of the courts of Hong Kong, and has the power to designate, appoint and empower, and pursuant to Section 11 of this Placement Agreement, has legally, validly and effectively designated, appointed and empowered, an agent for service of process in any suit or proceeding based on or arising under this Placement Agreement in the courts of Hong Kong.
Appears in 1 contract
Samples: Placement Agreement (Orascom Telecom Holding S.A.E.)
Selling Shareholder’s Representations and Warranties. The Selling Shareholder represents and warrants Shareholders warrant to, and agrees agree with the Placement Placing Agent that:
(ia) as at the date hereof the Selling Shareholder owns the number of Shares Shareholders own 100% of the Company set forth opposite its name on Schedule A hereto, (ii) to the Selling Shareholder's knowledge, the Offered Shares have been duly and validly authorized and issued, are fully paid up and non-assessable, and rank pari passu in all respects with the other issued Shares and (iii) were allotted and issued by the Company more than six months prior to the date hereofShares;
(b) this Placement Private Placing Agreement has been duly authorized, executed and delivered by the Selling Shareholder and is enforceable against the Selling Shareholder in accordance with its own termsShareholders;
(c) the Selling Shareholder is duly incorporated and validly existing under the laws of the place of its incorporation and has Shareholders have full right, authority and power to enter into and perform its their respective obligations under this Placement Private Placing Agreement and to sell, assign, transfer and deliver the Offered Shares owned by each of them respectively to the Placement Agent for transfer to the purchasers Purchasers procured by the Placement Placing Agent;
(d) the Selling Shareholder has, and immediately prior to the Closing Date (as defined herein) will have, Shareholders have good and valid title to the Offered SharesShares to be sold by the Selling Shareholders to the Purchasers, free and clear of all liensliens and encumbrances; and immediately prior to the Settlement Date the Selling Shareholders will have good and valid title to the Offered Shares to be sold by the Selling Shareholders at such Settlement Date, encumbrances or claims; free and clear of all liens and encumbrances, and upon delivery of such Offered SharesShares to the Purchasers by the Selling Shareholders at the Settlement Date pursuant to this Private Placing Agreement and payment therefor as provided herein, good and valid title thereto, free and clear of all liensliens and encumbrances, encumbrances or claimswill, will as far as the Selling Shareholders are able to procure, be transferred to the purchasers procured by the Placement AgentPurchasers;
(e) no the compliance by the Selling Shareholders with the applicable provisions of this Private Placing Agreement and the consummation by the Selling Shareholders of the transactions contemplated by this Private Placing Agreement do not require any consent, approval, authorization, or other order of, of any court or filing with, any governmental body or governmental agency or body, any court, shareholder of the Company or any other third party is required to be obtained or made by such Selling Shareholder for the consummation of the transactions contemplated by this Placement Agreement in connection with the sale of the Offered Shares, other than those consents, approvals and authorizations that have been obtained which consents, approvals and authorizations shall remain valid until Closingnot already obtained;
(f) the execution of this Placement Agreement, the offer, sale and delivery by the Selling Shareholder of the Offered Shares Private Placing Agreement and the consummation of the transactions contemplated by this Placement Private Placing Agreement do not conflict with or result in a breach or violation of any of the terms or provisions of, require any third party consent or constitute a default under any indenture, mortgage, deed of trust, loan agreement or other agreement or instrument, decree, regulation or law to which the Selling Shareholder is Shareholders are a party or by which the Selling Shareholder is bound or to which any of the property or assets of the Selling Shareholder is subjectShareholders are bound, or any of the provisions of the Articles of Association (or similar instrument) of the Selling Shareholder Shareholders or any statute or any order, existing law, rule or regulation, judgmentjudgement, order or decree of any court, government or governmental agency or body having jurisdiction over the Selling Shareholder or the property or assets of the Selling Shareholder or violation by the Selling Shareholder or its representatives on the board of directors of the Company of the Rules Governing the Listing of Securities on the Stock Exchange or any of the internal policies or guidelines of the Company or the Securities and Futures Ordinance (Cap.571 of the Laws of Hong Kong) (the "SFO"), except to the extent that any breach or violation of any loan agreement or other agreement (but not any indenture, mortgage, deed of trust, decree, regulation or law) would not result in a material adverse change, in or affecting the business, assets or property of the Selling Shareholder;Shareholders.
(g) other than Hong Kong stamp tax of as set forth in Section 3(a)(ii)during the period beginning 10 days prior to and ending on the date 30 days subsequent to the date hereof, no stamp or other issuance or transfer taxes or duties, and no indirect taxes or duties are payable by neither the purchasers procured by the Placement Agent or the Placement AgentSelling Shareholders nor, as far as the case may beSelling Shareholders are aware having made due inquiry, any of their wholly owned subsidiaries nor, any person acting on their direct instructions has or will have, as far as the Selling Shareholders are able to Hong Kong procure, directly or indirectly, bid for, purchased or induced any person to bid for or purchase any Offered Shares or any political subdivision securities which may, in the whole or taxing authority thereof or therein in connection with part, directly affect the sale and delivery value of the Offered Shares;
(h) neither the Selling Shareholder nor Shareholders, nor, as far as the Selling Shareholders are aware having made due inquiry, any of its representatives on the board of directors of the Company (i) is in possession or aware of any material or "price sensitive" information (including, without limitation, any information regarding any changes in the business and prospects of the Company or any adverse change or prospective adverse change in the condition of, or any actual, pending or threatened litigation, arbitration or similar proceeding involving, the Company) that is not described in the Company's most recent annual report or subsequent public information releases (the "Company Information") and (ii) has been and will be in contravention of Part XIV of the SFO or other applicable law or regulations prohibiting "insider dealing" in securities in connection with the offer and sale of the Offered Shares. The Selling Shareholder has read the Company Information and, to the best of the Selling Shareholder's knowledge, it does not include any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein not misleading. The Company, to the knowledge of the Selling Shareholder, is in compliance with the rules and regulations, including the reporting requirements, of Hong Kong and the United States;
(i) the offer and sale of the Offered Shares in the manner contemplated by this Placement Agreement will be exempt from the registration requirements of the U.S. Securities Act of 1933, as amended ("Securities Act");
(j) neither the Selling Shareholder, their wholly owned subsidiaries nor any of its affiliates or any person acting on its or their behalf direct instructions has engaged or will will, as far as the Selling Shareholders are able to procure, engage in any directed selling efforts (as such term is defined in Regulation S under the Securities Act ("Regulation S")) in connection with the offer and sale of the Offered Shares, and and, as far as the Selling Shareholders are aware, having made due inquiry all such persons have complied and will comply comply, as far as the Selling Shareholders are able to procure, in all material respects with the offering restrictions requirement of Regulation S to the extent applicable to the offer and sale of the Offered Shares; provided that this representation shall not be deemed to be made in respect of actions taken by the Placement Placing Agent regarding the Offered Shares;
(i) the Selling Shareholders are not aware of any material information (including, without limitation, any information regarding any material adverse change or prospective material adverse change in the condition of, or any actual, pending or threatened litigation, arbitration or similar proceeding involving the Company and material information relating to the ongoing commercial relationship between the Selling Shareholders and the Company to the extent only that the Selling Shareholders are aware of it after making due inquiry of the President and senior financial officer of the business unit responsible for the purchase of products from the Company by the Selling Shareholders) that is not described in the Company's most recent filings with the United States Securities and Exchange Commission, its annual report or subsequent public information releases (the "Company Information") which information is necessary to enable investors to make an informed assessment of the assets and liabilities, financial position, profits and losses and prospects of the Company and its subsidiaries, the Selling Shareholders have read the Company Information and, as far as they are aware, it does not include any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein not misleading.
(j) neither the Selling Shareholders nor, as far as the Selling Shareholders are aware having made due inquiry, any of their wholly owned subsidiaries nor any other person acting on their direct instructions has engaged, in connection with the offer and sale of the Offered Shares, in any material form of general solicitation or general advertising within the meaning of Regulation D under the Securities Act; the Selling Shareholders further agree not to, and to cause their wholly owned subsidiaries not to, and not knowingly to authorize or knowingly permit any person acting on their behalf to, solicit any offer to buy or offer to sell the Offered Shares by means of any form of general solicitation or general advertising within the meaning of Regulation D under the Securities Act or in any manner involving a public offering within the meaning of Section 4(2) of the Securities Act; provided that this representation shall not be deemed to be made in respect of actions taken by the Placing Agent regarding the Offered Shares;
(k) neither the Selling Shareholder nor its affiliates nor any persons acting on its or their behalf has engaged in or will engage in any form of general solicitation or general advertising (Shareholders nor, as those terms are used in Regulation D promulgated under the Securities Act) with respect to offers or sales of the Offered Shares in the United States;
(1) the Company is a Foreign Issuer (far as that term is defined in Rule 902 of Regulation S) and the Selling Shareholder reasonably believes that on the commencement of the offering of the Offered Shares there was no Substantial U.S. Market Interest (as that term is defined in Rule 902 of Regulation S) in the Offered Shares;
(m) neither the Selling Shareholder nor Shareholders are aware having made due inquiry, any of its affiliates nor their wholly owned subsidiaries have, directly or through any person acting on its or their behalf has agent, sold, offered for sale or solicited an offer offers to buy or otherwise negotiated any security (as such term is defined in the Securities Act) which is or will sell, offer for sale or solicit an offer to buy or otherwise negotiate in respect of any security which would be integrated with the sale distribution of the Offered Shares in a manner that would require registration of any of the Offered Shares under the Securities Act;; the Selling Shareholders further agree not to, and to cause their wholly owned subsidiaries not to, sell, offer for sale or solicit offers to buy any security (as such term is defined in the Securities Act) which could be integrated with the distribution of the Offered Shares in a manner that would require registration of the Offered Shares under the Securities Act; and
(nl) subject to compliance by the Company is notPlacing Agent with the undertaking in D above, and as a result of provided that the sale of the Offered Shares contemplated hereby will to the Purchasers procured by the Placing Agent is by way of privately negotiated transaction not beinvolving a public offering of securities, subject the execution of this Private Placing Agreement does not conflict with or result in a breach of any of the terms or provisions of any agreement with the Company to regulation as an "investment company" as defined under the United States Investment Company Act of 1940, as amended;
(o) the Shares are listed on The New York Stock Exchange;
(p) neither which the Selling Shareholder nor any of its affiliates nor any person acting on its or their behalf has or will have, directly or indirectly, bid for, purchased or attempted to induce any person to bid for or purchased any Shares or any securities which may, in the whole or in part, affect the value of the Shares;
(q) none of the Selling Shareholder, any of its subsidiaries or any director, officer, agent, employee or affiliate of the Selling Shareholder or any of its subsidiaries is currently subject to any U.S. sanctions administered by the Office of Foreign Assets Control of the U.S. Department of the Treasury ("OFAC"); and the Selling Shareholder will not directly or indirectly use (or authorize or enable others to use) the proceeds of the offering of the Offered Shares hereunder, or lend, contribute or otherwise make available such proceeds to any subsidiary, joint venture partner or other person or entity, for the purpose of financing or otherwise furthering the activities of any person subject to any U.S. sanctions administered by OFAC;
(r) none of the Selling Shareholder, any of its subsidiaries or any director, officer, agent, employee or affiliate of the Selling Shareholder or any of its subsidiaries does any business with countries, entities or persons subject to any U.S. sanctions administered by the OFAC, or to any enabling legislation or executive order relating thereto, or any person or entity in those countries or with those persons, or perform contracts in support of projects in or for the benefit of those countries or those persons;
(s) all statements of fact contained in any Announcement (as defined in Section "Announcements" below) with respect to the Selling Shareholder Shareholders are true and accurate in all material respects, and are not misleading in any material respect, and there are no facts or matters which are not disclosed in the Announcement the omission of which makes the Announcement misleading in any material respect and all statements and expressions of opinions, intention or expectation therein are made on reasonable grounds (after due and proper consideration) and are fairly based and honestly held and the Selling Shareholder does not disagree in any material respect with any such statements or expressions;
(t) the Selling Shareholder does not have rights to a claim of sovereign immunity with respect to or arising from its obligations to the Placement Agent herein; and
(u) the Selling Shareholder has the power to submit, and pursuant to Section 11 of this Placement Agreement, has legally, validly, effectively and irrevocably submitted, to the jurisdiction of the courts of Hong Kong, and has the power to designate, appoint and empower, and pursuant to Section 11 of this Placement Agreement, has legally, validly and effectively designated, appointed and empowered, an agent for service of process in any suit or proceeding based on or arising under this Placement Agreement in the courts of Hong Kongparties.
Appears in 1 contract
Selling Shareholder’s Representations and Warranties. The Selling Shareholder represents and warrants to, and agrees with the Placement Agent that:
(i) the Selling Shareholder owns the number of Shares of the Company set forth opposite its name on Schedule A hereto, (ii) to the Selling Shareholder's knowledge, the Offered Shares have been duly and validly authorized and issued, are fully paid up and non-assessable, and rank pari passu in all respects with the other issued Shares and (iii) were allotted and issued by the Company more than six months prior to the date hereof;
(b) this Placement Agreement has been duly authorized, executed and delivered by the Selling Shareholder and is enforceable against the Selling Shareholder in accordance with its own terms;
(c) the Selling Shareholder is duly incorporated and validly existing under the laws of the place of its incorporation and has full right, authority and power to enter into and perform its obligations under this Placement Agreement and to sell, assign, transfer and deliver the Offered Shares to the Placement Agent for transfer to the purchasers procured by the Placement Agent;
(d) the Selling Shareholder has, and immediately prior to the Closing Date (as defined herein) will have, good and valid title to the Offered Shares, free and clear of all liens, encumbrances or claims; upon delivery of such Offered Shares, good and valid title thereto, free and clear of all liens, encumbrances or claims, will be transferred to the purchasers procured by the Placement Agent;
(e) no consent, approval, authorization, or order of, or filing with, any governmental agency or body, any court, shareholder of the Company or any other third party is required to be obtained or made by such Selling Shareholder for the consummation of the transactions contemplated by this Placement Agreement in connection with the sale of the Offered Shares, other than those consents, approvals and authorizations that have been obtained which consents, approvals and authorizations shall remain valid until Closing;
(f) the execution of this Placement Agreement, the offer, sale and delivery by the Selling Shareholder of the Offered Shares and the consummation of the transactions contemplated by this Placement Agreement do not conflict with or result in a breach or violation of any of the terms or provisions of, require any third party consent or constitute a default under any indenture, mortgage, deed of trust, loan agreement or other agreement or instrument, decree, regulation or law to which the Selling Shareholder is a party or by which the Selling Shareholder is bound or to which any of the property or assets of the Selling Shareholder is subject, or any of the provisions of the Articles of Association (or similar instrument) of the Selling Shareholder or any statute or any order, law, rule or regulation, judgment, order or decree of any court, government or governmental agency or body having jurisdiction over the Selling Shareholder or the property or assets of the Selling Shareholder or violation by the Selling Shareholder or its representatives on the board of directors of the Company of the Rules Governing the Listing of Securities on the Stock Exchange or any of the internal policies or guidelines of the Company or the Securities and Futures Ordinance (Cap.571 of the Laws of Hong Kong) (the "SFO"), except to the extent that any breach or violation of any loan agreement or other agreement (but not any indenture, mortgage, deed of trust, decree, regulation or law) would not result in a material adverse change, in or affecting the business, assets or property of the Selling Shareholder;
(g) other than Hong Kong stamp tax of as set forth in Section 3(a)(ii), no stamp or other issuance or transfer taxes or duties, and no indirect taxes or duties are payable by the purchasers procured by the Placement Agent or the Placement Agent, as the case may be, to Hong Kong or any political subdivision or taxing authority thereof or therein in connection with the sale and delivery of the Offered Shares;
(h) neither the Selling Shareholder nor any of its representatives on the board of directors of the Company (i) is in possession or aware of any material or "price sensitive" information (including, without limitation, any information regarding any changes in the business and prospects of the Company or any adverse change or prospective adverse change in the condition of, or any actual, pending or threatened litigation, arbitration or similar proceeding involving, the Company) that is not described in the Company's most recent annual report or subsequent public information releases (the "Company Information") and (ii) has been and will be in contravention of Part XIV of the SFO or other applicable law or regulations prohibiting "insider dealing" in securities in connection with the offer and sale of the Offered Shares. The Selling Shareholder has read the Company Information and, to the best of the Selling Shareholder's knowledge, it does not include any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein not misleading. The Company, to the knowledge of the Selling Shareholder, is in compliance with the rules and regulations, including the reporting requirements, of Hong Kong and the United States;
(i) the offer and sale of the Offered Shares in the manner contemplated by this Placement Agreement will be exempt from the registration requirements of the U.S. Securities Act of 1933, as amended ("Securities Act");
(j) neither the Selling Shareholder, nor any of its affiliates or any person acting on its or their behalf has engaged or will engage in any directed selling efforts (as such term is defined in Regulation S under the Securities Act ("Regulation S")) in connection with the offer and sale of the Offered Shares, and all such persons have complied and will comply with the offering restrictions requirement of Regulation S to the extent applicable to the offer and sale of the Offered Shares; provided that this representation shall not be deemed to be made in respect of actions taken by the Placement Agent regarding the Offered Shares;
(k) neither the Selling Shareholder nor its affiliates nor any persons acting on its or their behalf has engaged in or will engage in any form of general solicitation or general advertising (as those terms are used in Regulation D promulgated under the Securities Act) with respect to offers or sales of the Offered Shares in the United States;
(1l) the Company is a Foreign Issuer (as that term is defined in Rule 902 of Regulation S) and the Selling Shareholder reasonably believes that on the commencement of the offering of the Offered Shares there was no Substantial U.S. Market Interest (as that term is defined in Rule 902 of Regulation S) in the Offered Shares;
(m) neither the Selling Shareholder nor any of its affiliates nor any person acting on its or their behalf has sold, offered for sale or solicited an offer to buy or otherwise negotiated or will sell, offer for sale or solicit an offer to buy or otherwise negotiate in respect of any security which would be integrated with the sale of the Offered Shares that would require registration of any of the Offered Shares under the Securities Act;
(n) the Company is not, and as a result of the sale of the Offered Shares contemplated hereby will not be, subject to regulation as an "investment company" as defined under the United States Investment Company Act of 1940, as amended;
(o) the Shares are listed on The New York Stock Exchange;
(p) neither the Selling Shareholder nor any of its affiliates nor any person acting on its or their behalf has or will have, directly or indirectly, bid for, purchased or attempted to induce any person to bid for or purchased any Shares or any securities which may, in the whole or in part, affect the value of the Shares;
(q) none of the Selling Shareholder, any of its subsidiaries or any director, officer, agent, employee or affiliate of the Selling Shareholder or any of its subsidiaries is currently subject to any U.S. sanctions administered by the Office of Foreign Assets Control of the U.S. Department of the Treasury ("OFAC"); and the Selling Shareholder will not directly or indirectly use (or authorize or enable others to use) the proceeds of the offering of the Offered Shares hereunder, or lend, contribute or otherwise make available such proceeds to any subsidiary, joint venture partner or other person or entity, for the purpose of financing or otherwise furthering the activities of any person subject to any U.S. sanctions administered by OFAC;
(r) none of the Selling Shareholder, any of its subsidiaries or any director, officer, agent, employee or affiliate of the Selling Shareholder or any of its subsidiaries does any business with countries, entities or persons subject to any U.S. sanctions administered by the OFAC, or to any enabling legislation or executive order relating thereto, or any person or entity in those countries or with those persons, or perform contracts in support of projects in or for the benefit of those countries or those persons;
(s) all statements of fact contained in any Announcement (as defined in Section "Announcements" below) with respect to the Selling Shareholder are true and accurate in all material respects, and are not misleading in any material respect, and there are no facts or matters which are not disclosed in the Announcement the omission of which makes the Announcement misleading in any material respect and all statements and expressions of opinions, intention or expectation therein are made on reasonable grounds (after due and proper consideration) and are fairly based and honestly held and the Selling Shareholder does not disagree in any material respect with any such statements or expressions;
(t) the Selling Shareholder does not have rights to a claim of sovereign immunity with respect to or arising from its obligations to the Placement Agent herein; and
(u) the Selling Shareholder has the power to submit, and pursuant to Section 11 of this Placement Agreement, has legally, validly, effectively and irrevocably submitted, to the jurisdiction of the courts of Hong Kong, and has the power to designate, appoint and empower, and pursuant to Section 11 of this Placement Agreement, has legally, validly and effectively designated, appointed and empowered, an agent for service of process in any suit or proceeding based on or arising under this Placement Agreement in the courts of Hong Kong.
Appears in 1 contract
Samples: Placement Agreement (Orascom Telecom Holding S.A.E.)
Selling Shareholder’s Representations and Warranties. In order to induce Buyer to enter into this Agreement and purchase the Shares, the Selling Shareholder makes the following representations and warranties to Buyer, which representations and warranties shall be true and correct as of the Closing date as well as on the date hereof:
(a) The Selling Shareholder represents has full power and warrants toauthority to enter into this Agreement and to carry out the transactions contemplated hereby. The execution, delivery and agrees with the Placement Agent that:
(i) performance of this Agreement by the Selling Shareholder owns and the number of Shares consummation of the Company set forth opposite its name on Schedule A hereto, (ii) to the Selling Shareholder's knowledge, the Offered Shares transactions contemplated hereby have been duly and validly authorized and issued, are fully paid up and non-assessableauthorized, and rank pari passu this Agreement constitutes the legal, valid and binding obligation of the Selling Shareholder, enforceable in all respects accordance with its terms. Neither the other issued Shares execution and (iii) were allotted and issued by delivery of this Agreement nor the Company more than six months prior to consummation of the date hereof;transactions contemplated hereby requires the approval or consent of any third party, whether governmental or otherwise.
(b) this Placement Agreement has been duly authorized, executed and delivered by the Selling Shareholder and is enforceable against the Selling Shareholder in accordance with its own terms;
(c) the The Selling Shareholder is duly incorporated the only legal, record and validly existing under the laws beneficial owner of the place Shares. The Shares are free and clear of its incorporation and has full rightall liens, authority and power to enter into and perform its obligations under this Placement Agreement and to sellpledges, assignsecurity interests, transfer and deliver irrevocable proxies, encumbrances or restrictions of any kind. Upon the Offered Shares to conveyance of the Placement Agent for transfer to Shares, the purchasers procured by the Placement Agent;
(d) the Selling Shareholder has, and immediately prior to the Closing Date (as defined herein) Buyer will have, good be vested with legal and valid title to the Offered Shares, free and clear of all liens, encumbrances or claims; upon delivery of such Offered Sharespledges, good and valid title theretosecurity interests, free and clear of all liensirrevocable proxies, encumbrances or claimsrestrictions of any kind.
(c) There is no outstanding right, will be transferred to agreement, power of attorney, commitment or understanding of any nature whatsoever, that:
(i) calls for the purchasers procured by issuance, sale, pledge or other disposition of the Placement AgentShares;
(eii) no consent, approval, authorization, or order of, or filing with, obligates the Selling Shareholder to enter into any governmental agency or body, any court, shareholder of the Company foregoing; or
(iii) relates to the voting or any other third party is required to be obtained or made by control of such Selling Shareholder for the consummation Shares.
(d) The execution, delivery and performance of this Agreement and the transactions contemplated by this Placement Agreement in connection with the sale of the Offered Shares, other than those consents, approvals and authorizations that have been obtained which consents, approvals and authorizations shall remain valid until Closing;
(f) the execution of this Placement Agreement, the offer, sale and delivery by the Selling Shareholder of the Offered Shares and the consummation of the transactions contemplated by this Placement Agreement do will not conflict with with, or constitute or result in a breach breach, default or violation of:
(i) the Articles of any Incorporation of By-Laws of the terms Selling Shareholder or provisions ofthe Company;
(ii) any law, require any third party consent or constitute a default under any indenture, mortgage, deed of trust, loan agreement or other agreement or instrument, decreeordinance, regulation or law rule applicable to the Selling Shareholder or the Company;
(iii) any order, judgment, injunction or other decree by which the Selling Shareholder or the Company is bound; or
(iv) any written or oral contract, agreement, or commitment to which the Selling Shareholder or the Company is a party party; nor will such execution, delivery and performance result in the creation of any lien or by which encumbrance upon the Shares.
(e) The Selling Shareholder is subject to any order, judgment, decree, injunction, stipulation or consent order of or with any court or other governmental authority, and neither the Company nor the Selling Shareholder is bound have entered into any agreement to settle or to compromise any proceeding pending or threatened against it or them which has involved any obligation other than the payment of the property money or assets of the Selling Shareholder is subject, or any of the provisions of the Articles of Association (or similar instrument) of the Selling Shareholder or any statute or any order, law, rule or regulation, judgment, order or decree of any court, government or governmental agency or body having jurisdiction over the Selling Shareholder or the property or assets of the Selling Shareholder or violation by the Selling Shareholder or its representatives on the board of directors of the Company of the Rules Governing the Listing of Securities on the Stock Exchange or any of the internal policies or guidelines of for which the Company or the Securities Selling Shareholder have any continuing obligation, and Futures Ordinance (Cap.571 there is no reason for the Company or the Selling Shareholder to believe otherwise, irrespective of whether or not they believe the Laws of Hong Kong) (the "SFO")order, except to the extent that any breach or violation of any loan agreement or other agreement (but not any indenture, mortgage, deed of trustjudgment, decree, regulation injunction, stipulation or lawconsent order is valid or not.
(f) would not result in a material adverse changeThere are no claims, in actions, suits, proceedings or affecting investigations pending or threatened by or against the business, assets Company or property of the Selling Shareholder;Shareholder with respect to this Agreement, or in connection with the transactions contemplated hereby or thereby, and no Person has objected or threatened to object thereto, and there is no reason for the Company or the Selling Shareholder to believe otherwise, irrespective of whether or not they believe the claims, actions, suits, proceedings or investigations are valid or not.
(g) other than Hong Kong stamp tax of as set forth The representations and warranties contained in this Section 3(a)(ii), no stamp or other issuance or transfer taxes or duties, and no indirect taxes or duties are payable by the purchasers procured by the Placement Agent or the Placement Agent, as the case may be, to Hong Kong or any political subdivision or taxing authority thereof or therein in connection with the sale and delivery of the Offered Shares;
(h) neither the Selling Shareholder nor any of its representatives on the board of directors of the Company (i) is in possession or aware of any material or "price sensitive" information (including, without limitation, any information regarding any changes in the business and prospects of the Company or any adverse change or prospective adverse change in the condition of, or any actual, pending or threatened litigation, arbitration or similar proceeding involving, the Company) that is do not described in the Company's most recent annual report or subsequent public information releases (the "Company Information") and (ii) has been and will be in contravention of Part XIV of the SFO or other applicable law or regulations prohibiting "insider dealing" in securities in connection with the offer and sale of the Offered Shares. The Selling Shareholder has read the Company Information and, to the best of the Selling Shareholder's knowledge, it does not include contain any untrue statement of a material fact or omit to state any a material fact required or necessary in order to be stated therein to make the statements therein made therein, in light of the circumstances in which they were made, not misleading. The Company, to the knowledge of the Selling Shareholder, is in compliance with the rules and regulations, including the reporting requirements, of Hong Kong and the United States;
(i) the offer and sale of the Offered Shares in the manner contemplated by this Placement Agreement will be exempt from the registration requirements of the U.S. Securities Act of 1933, as amended ("Securities Act");
(j) neither the Selling Shareholder, nor any of its affiliates or any person acting on its or their behalf has engaged or will engage in any directed selling efforts (as such term is defined in Regulation S under the Securities Act ("Regulation S")) in connection with the offer and sale of the Offered Shares, and all such persons have complied and will comply with the offering restrictions requirement of Regulation S to the extent applicable to the offer and sale of the Offered Shares; provided that this representation shall not be deemed to be made in respect of actions taken by the Placement Agent regarding the Offered Shares;
(k) neither the Selling Shareholder nor its affiliates nor any persons acting on its or their behalf has engaged in or will engage in any form of general solicitation or general advertising (as those terms are used in Regulation D promulgated under the Securities Act) with respect to offers or sales of the Offered Shares in the United States;
(1) the Company is a Foreign Issuer (as that term is defined in Rule 902 of Regulation S) and the Selling Shareholder reasonably believes that on the commencement of the offering of the Offered Shares there was no Substantial U.S. Market Interest (as that term is defined in Rule 902 of Regulation S) in the Offered Shares;
(m) neither the Selling Shareholder nor any of its affiliates nor any person acting on its or their behalf has sold, offered for sale or solicited an offer to buy or otherwise negotiated or will sell, offer for sale or solicit an offer to buy or otherwise negotiate in respect of any security which would be integrated with the sale of the Offered Shares that would require registration of any of the Offered Shares under the Securities Act;
(n) the Company is not, and as a result of the sale of the Offered Shares contemplated hereby will not be, subject to regulation as an "investment company" as defined under the United States Investment Company Act of 1940, as amended;
(o) the Shares are listed on The New York Stock Exchange;
(p) neither the Selling Shareholder nor any of its affiliates nor any person acting on its or their behalf has or will have, directly or indirectly, bid for, purchased or attempted to induce any person to bid for or purchased any Shares or any securities which may, in the whole or in part, affect the value of the Shares;
(q) none of the Selling Shareholder, any of its subsidiaries or any director, officer, agent, employee or affiliate of the Selling Shareholder or any of its subsidiaries is currently subject to any U.S. sanctions administered by the Office of Foreign Assets Control of the U.S. Department of the Treasury ("OFAC"); and the Selling Shareholder will not directly or indirectly use (or authorize or enable others to use) the proceeds of the offering of the Offered Shares hereunder, or lend, contribute or otherwise make available such proceeds to any subsidiary, joint venture partner or other person or entity, for the purpose of financing or otherwise furthering the activities of any person subject to any U.S. sanctions administered by OFAC;
(r) none of the Selling Shareholder, any of its subsidiaries or any director, officer, agent, employee or affiliate of the Selling Shareholder or any of its subsidiaries does any business with countries, entities or persons subject to any U.S. sanctions administered by the OFAC, or to any enabling legislation or executive order relating thereto, or any person or entity in those countries or with those persons, or perform contracts in support of projects in or for the benefit of those countries or those persons;
(s) all statements of fact contained in any Announcement (as defined in Section "Announcements" below) with respect to the Selling Shareholder are true and accurate in all material respects, and are not misleading in any material respect, and there are no facts or matters which are not disclosed in the Announcement the omission of which makes the Announcement misleading in any material respect and all statements and expressions of opinions, intention or expectation therein are made on reasonable grounds (after due and proper consideration) and are fairly based and honestly held and the Selling Shareholder does not disagree in any material respect with any such statements or expressions;
(t) the Selling Shareholder does not have rights to a claim of sovereign immunity with respect to or arising from its obligations to the Placement Agent herein; and
(u) the Selling Shareholder has the power to submit, and pursuant to Section 11 of this Placement Agreement, has legally, validly, effectively and irrevocably submitted, to the jurisdiction of the courts of Hong Kong, and has the power to designate, appoint and empower, and pursuant to Section 11 of this Placement Agreement, has legally, validly and effectively designated, appointed and empowered, an agent for service of process in any suit or proceeding based on or arising under this Placement Agreement in the courts of Hong Kong.4 5
Appears in 1 contract
Samples: Stock Purchase Agreement (Vacation Ownership Marketing Inc)
