THE COMPANY'S UNDERTAKINGS. 5.1 The Company hereby undertakes with the Subscriber that the Company shall comply in all respects with the terms and conditions of the Subscription and, in particular, that the Company shall duly allot and issue the Subscription Shares free from all Encumbrances ranking pari passu in all respects with the Shares in issue as at the date of allotment. 5.2 The Company undertakes with the Subscriber to procure that the Registrar shall do all such acts and things as may be required to be done by it in connection with the Subscription. 5.3 The Company undertakes with the Subscriber to comply with (i) all laws and regulations applicable to the Group, including but not limited to, the laws of Hong Kong, and (ii) all requirements of the Hong Kong Stock Exchange, the Singapore Stock Exchange, the SFC and the SIC to give effect to all matters contemplated under the Agreement, including but not limited to the making of all necessary filings with the Hong Kong Stock Exchange, the Singapore Stock Exchange, the SFC, the SIC and the Registrar of Companies in Hong Kong. 5.4 Subject to all applicable laws restricting and/or prohibiting the disclosure of information by the Company to the Subscriber, to the extent legally permissible, the Company undertakes to provide the Subscriber with all such information known to it relating to the Group or otherwise as may be reasonably required by the Subscriber in connection with the Subscription for the purposes of complying with all laws and the requirements of the Hong Kong Stock Exchange, the Singapore Stock Exchange, the SFC, the SIC and/or any other relevant regulatory authority. 5.5 Subject always to all applicable laws restricting and/or prohibiting the disclosure of information by the Company to the Subscriber, to the extent legally permissible, pending Completion, the Company undertakes with the Subscriber that the Subscriber and any person authorised by the Subscriber shall be given reasonable access to inspect all the books and records and other documents of each member of the Group during normal business hours but by prior appointment with reasonable prior notice and without affecting the normal operations and business of the Group. 5.6 Pending Completion, the Company undertakes to procure that the existing business of each member of the Group will continue to be operated on a normal basis and in the ordinary course of day-to-day operations consistent with past practice and it will not do (or allow to be done) any act or thing not in the ordinary course of day-to-day operations which has a material adverse effect on the Group as a whole and in particular (but without limiting the generality of the foregoing) will procure that the Group shall not prior to the date of Completion, do, allow, or procure any act or permit any omission which would constitute a breach of any of the Warranties or any of its undertakings set out in this Agreement, save with the Subscriber’s prior written consent (which consent shall not be unreasonably withheld or delayed). 5.7 Pending Completion, the Company undertakes with the Subscriber to procure that, at all times prior to the date of Completion, unless with the prior written consent of the Subscriber (which consent shall not be unreasonably withheld or delayed) or for the purpose of carrying out the transactions contemplated under this Agreement or the transactions contemplated under the Master Agreement, each member of the Group shall: 5.7.1 not alter its memorandum and articles of association or any similar constitutional document save for amending the memorandum and articles of association of the Company to increase the maximum number of Shares which the Company is authorised to issue from 10,000,000,000 Shares to 20,000,000,000 Shares; 5.7.2 not declare, make or pay any dividend or other distribution; 5.7.3 not alter its registered capital or its capital structure save for increasing the maximum number of Shares which the Company is authorised to issue from 10,000,000,000 Shares to 20,000,000,000 Shares; 5.7.4 not make any proposal for winding up or liquidation; 5.7.5 not propose any scheme or plan of arrangement, reconstruction, amalgamation or demerger; 5.7.6 not enter into any contract, liability or commitment which could involve expenditure or liability that exceeds RMB10,000,000 or in aggregate exceeds RMB100,000,000; 5.7.7 not issue, agree to issue, repurchase or agree to repurchase any Share or loan capital or grant, or agree to grant, any option over or right to acquire or to subscribe for any Share or loan capital; 5.7.8 other than in the ordinary course of the Group's business or as envisaged in the Agreement or the Master Agreement, not acquire or dispose of any interest in any material asset or create or undertake any capital commitment or capital expenditure or any actual or contingent liability which exceeds RMB5,000,000 or in aggregate exceeds RMB50,000,000; 5.7.9 other than liens arising by operation of law in amounts which are not material and other than in the ordinary course of the Group's business, not create or permit to arise any mortgage, charge (fixed or floating), lien, pledge, other form of security or Encumbrance or equity of whatsoever nature, whether similar to the foregoing or not, nor in respect of any part of its undertaking, property or assets of each member of the Group; 5.7.10 not borrow any money in addition to those already borrowed by any members of the Group at the date of this Agreement or those drawn under facilities already granted by financial institutions to the members of the Group as at the date of this Agreement which in aggregate exceeds RMB10,000,000; 5.7.11 except as otherwise permitted under this Clause 5.7, not incur any liabilities (including, without limitation, indebtedness or any management agreement) or enter into any transactions, agreements or arrangements other than in the ordinary course of business; 5.7.12 not give any guarantee or indemnity or act as surety for or otherwise nor to secure or accept any direct or indirect liability for the liabilities of or obligations of any person (other than members of the Group that are (1) not Non-Principal Business Assets or (2) the immediate holding entities holding the Non-Principal Business Assets); 5.7.13 not alter the terms of any financing/lending documents or security arrangements so as to have a material adverse effect on any member of the Group; 5.7.14 continue to comply with and duly perform and discharge its duties and obligations (including payment obligations) under all agreements and contracts entered into by it and discharge, at its own costs and expenses, all liabilities in relation thereto which accrue due for the period prior to Completion; 5.7.15 promptly notify the Subscriber of any circumstances or events which may give rise to any claims or liabilities including taxation (whether present or future, actual or contingent and joint or several) howsoever relating to any member of the Group or any part thereof; 5.7.16 not terminate any agreement or waive any right thereunder so as to have a material adverse effect on the relevant member of the Group; 5.7.17 other than as envisaged in this Agreement, not appoint any new directors; 5.7.18 save as required by applicable laws and regulations, not establish any new pension, retirement scheme, share option scheme, profit sharing or bonus scheme or any other benefit scheme or grant any option pursuant to the share option scheme currently in existence; 5.7.19 not make any increase exceeding 10% in the remuneration of or change other material terms of employment of the existing employees; 5.7.20 not release, compromise or write off any amount recorded in the books of account of any member of the Group as owing by any debtors of any member of the Group, save for normal bad debt provision in the ordinary and usual course of business consistent with past practice; 5.7.21 not terminate or allow to lapse any insurance policy in respect of any material assets now in effect; 5.7.22 not enter into any partnership, joint venture arrangement or profit sharing arrangement, or make any investment outside the Group; 5.7.23 not change its auditors or make any change to its accounting practices or policies, except where such change is recommended by its auditors as a consequence of a change in law or accounting rules, policies or practices; 5.7.24 not carry on any business other than its existing business; 5.7.25 not incur any expenses that are outside the ordinary course of business that exceeds RMB500,000 or in aggregate exceeds RMB5,000,000; 5.7.26 promptly notify the Subscriber when incurring any expenses that exceeds 20% in value as and when compared to the same type of expenses that was incurred prior to the execution of this Agreement; 5.7.27 not employ any new employee; and 5.7.28 not enter into any transaction with any Non-Principal Business Assets if it is a company or the immediate holding entities holding the Non-Principal Business Assets if the Non-Principal Business Asset is an asset. 5.8 Pending Completion, the Company undertakes with the Subscriber to procure that, unless with the prior written consent of the Subscriber, each member of the Group shall comply with the obligations specified in clause 6.7 of the Master Agreement. 5.9 Subject to all applicable laws, rules and regulations restricting and/or prohibiting the disclosure of information by the Company to the Subscriber, to the extent legally permissible, the Company undertakes to disclose to the Subscriber as soon as reasonably practicable the Matters, if any, occurred during the period from 1 July 2013 to the date of this Agreement. For the purpose of this clause, the "Matter" refers to any of events that the Company undertakes not to conduct without the prior consent of the Subscriber pending Completion as specified in clauses 5.7 and 5.8. 5.10 The Company shall make such announcements and issue such circular(s) disclosing particulars of this Agreement, the Hong Kong Whitewash Waiver, the Singapore Whitewash Waiver, the Special Deal Consents, the Master Agreement and the transactions contemplated thereunder as may be required for the purposes of complying with the Company's disclosure obligations under applicable laws, rules and regulations (including but not limited to the Listing Rules, the Takeovers Codes, the Securities and Futures Ordinance (Chapter 571 of the Laws of Hong Kong) and the Securities and Futures Act (Chapter 289 of Singapore)), and, during the preparation of such announcements and circular(s), the Company will consider and incorporate reasonable comments from the Subscriber. 5.11 After Completion and if permitted under applicable laws, rules and regulations and the articles of association of the Company, the Subscriber is entitled by notice in writing to the Company to require the nomination of a majority of the directors to the board of directors ("Candidates") of the Company. Subject to Completion, the Company undertakes to take appropriate actions within seven business days after notice of nomination is received from the Subscriber in relation to the nomination and the appointment of the Candidates as directors of the Company provided that the provisions of the articles of association of the Company, the Takeovers Codes, the Listing Rules and all applicable laws are complied with and the qualifications of the Candidates meet the requirements of the Listing Rules.
Appears in 1 contract
Samples: Subscription Agreement
THE COMPANY'S UNDERTAKINGS. 5.1 The Company hereby undertakes with the Subscriber that the Company shall comply in all respects with the terms and conditions of the Subscription and, in particular, that the Company shall duly allot and issue the Subscription Shares free from all Encumbrances ranking pari passu in all respects with the Shares in issue as at the date of allotment.
5.2 The Company undertakes with the Subscriber to procure that the Registrar share registrar of the Company shall do all such acts and things as may be required to be done by it in connection with the Subscription.
5.3 The Company undertakes with the Subscriber to comply with (i) all laws and regulations applicable to the Group, including but not limited to, the laws of Hong Kong, and (ii) all requirements of the Hong Kong Stock Exchange, the Singapore Stock Exchange, Exchange and the SFC and the SIC to give effect to all matters contemplated under the Agreement, including but not limited to the making of all necessary filings with the Hong Kong Stock Exchange, the Singapore Stock Exchange, the SFC, the SIC SFC and the Registrar of Companies in Hong Kong.
5.4 Subject to all applicable laws restricting and/or prohibiting the disclosure of information by the Company to the Subscriber, to the extent legally permissible, the Company undertakes to provide the Subscriber with all such information known to it relating to the Group or otherwise as may be reasonably required by the Subscriber in connection with the Subscription for the purposes of complying with all laws and the requirements of the Hong Kong Stock Exchange, the Singapore Stock Exchange, the SFC, the SIC SFC and/or any other relevant regulatory authority.
5.5 Subject always to all applicable laws restricting and/or prohibiting the disclosure of information by the Company to the Subscriber, to the extent legally permissible, pending Completion, the Company undertakes with the Subscriber that the Subscriber and any person authorised by the Subscriber shall be given reasonable access to inspect all the books and records and other documents of each member of the Group during normal business hours but by prior appointment with reasonable prior notice and without affecting the normal operations and business of the Group.
5.6 Pending Completion, the Company undertakes to procure that the existing business of each member of the Group will continue to be operated on a normal basis and in the ordinary course of day-to-day operations consistent with past practice and it will not do (or allow to be done) any act or thing not in the ordinary course of day-to-day operations which has a material adverse effect on the Group as a whole and in particular (but without limiting the generality of the foregoing) will procure that the Group shall not prior to the date of Completion, do, allow, or procure any act or permit any omission which would constitute a breach of any of the Warranties or any of its undertakings set out in this Agreement, save with the Subscriber’s prior written consent (which consent shall not be unreasonably withheld or delayed).
5.7 Pending Completion, the Company undertakes with the Subscriber to procure that, at all times prior to the date of Completion, unless with the prior written consent of the Subscriber (which consent shall not be unreasonably withheld or delayed) or for the purpose of carrying out the transactions contemplated under this Agreement or the transactions contemplated under the Master Agreement, each member of the Group shall:
5.7.1 not alter its memorandum and articles of association or any similar constitutional document save for amending the memorandum and articles of association of the Company to increase the maximum number of Shares which the Company is authorised to issue from 10,000,000,000 Shares to 20,000,000,000 Shares;
5.7.2 not declare, make or pay any dividend or other distribution;
5.7.3 not alter its registered capital or its capital structure save for increasing the maximum number of Shares which the Company is authorised to issue from 10,000,000,000 Shares to 20,000,000,000 Shares;
5.7.4 not make any proposal for winding up or liquidation;
5.7.5 not propose any scheme or plan of arrangement, reconstruction, amalgamation or demerger;
5.7.6 not enter into any contract, liability or commitment which could involve expenditure or liability that exceeds RMB10,000,000 or in aggregate exceeds RMB100,000,000;
5.7.7 not issue, agree to issue, repurchase or agree to repurchase any Share or loan capital or grant, or agree to grant, any option over or right to acquire or to subscribe for any Share or loan capital;
5.7.8 other than in the ordinary course of the Group's business or as envisaged in the Agreement or the Master Agreement, not acquire or dispose of any interest in any material asset or create or undertake any capital commitment or capital expenditure or any actual or contingent liability which exceeds RMB5,000,000 or in aggregate exceeds RMB50,000,000;
5.7.9 other than liens arising by operation of law in amounts which are not material and other than in the ordinary course of the Group's business, not create or permit to arise any mortgage, charge (fixed or floating), lien, pledge, other form of security or Encumbrance or equity of whatsoever nature, whether similar to the foregoing or not, nor in respect of any part of its undertaking, property or assets of each member of the Group;
5.7.10 not borrow any money in addition to those already borrowed by any members of the Group at the date of this Agreement or those drawn under facilities already granted by financial institutions to the members of the Group as at the date of this Agreement which in aggregate exceeds RMB10,000,000;
5.7.11 except as otherwise permitted under this Clause 5.7, not incur any liabilities (including, without limitation, indebtedness or any management agreement) or enter into any transactions, agreements or arrangements other than in the ordinary course of business;
5.7.12 not give any guarantee or indemnity or act as surety for or otherwise nor to secure or accept any direct or indirect liability for the liabilities of or obligations of any person (other than members of the Group that are (1) not Non-Principal Business Assets or (2) the immediate holding entities holding the Non-Principal Business Assets);
5.7.13 not alter the terms of any financing/lending documents or security arrangements so as to have a material adverse effect on any member of the Group;
5.7.14 continue to comply with and duly perform and discharge its duties and obligations (including payment obligations) under all agreements and contracts entered into by it and discharge, at its own costs and expenses, all liabilities in relation thereto which accrue due for the period prior to Completion;
5.7.15 promptly notify the Subscriber of any circumstances or events which may give rise to any claims or liabilities including taxation (whether present or future, actual or contingent and joint or several) howsoever relating to any member of the Group or any part thereof;
5.7.16 not terminate any agreement or waive any right thereunder so as to have a material adverse effect on the relevant member of the Group;
5.7.17 other than as envisaged in this Agreement, not appoint any new directors;
5.7.18 save as required by applicable laws and regulations, not establish any new pension, retirement scheme, share option scheme, profit sharing or bonus scheme or any other benefit scheme or grant any option pursuant to the share option scheme currently in existence;
5.7.19 not make any increase exceeding 10% in the remuneration of or change other material terms of employment of the existing employees;
5.7.20 not release, compromise or write off any amount recorded in the books of account of any member of the Group as owing by any debtors of any member of the Group, save for normal bad debt provision in the ordinary and usual course of business consistent with past practice;
5.7.21 not terminate or allow to lapse any insurance policy in respect of any material assets now in effect;
5.7.22 not enter into any partnership, joint venture arrangement or profit sharing arrangement, or make any investment outside the Group;
5.7.23 not change its auditors or make any change to its accounting practices or policies, except where such change is recommended by its auditors as a consequence of a change in law or accounting rules, policies or practices;
5.7.24 not carry on any business other than its existing business;
5.7.25 not incur any expenses that are outside the ordinary course of business that exceeds RMB500,000 or in aggregate exceeds RMB5,000,000;
5.7.26 promptly notify the Subscriber when incurring any expenses that exceeds 20% in value as and when compared to the same type of expenses that was incurred prior to the execution of this Agreement;
5.7.27 not employ any new employee; and
5.7.28 not enter into any transaction with any Non-Principal Business Assets if it is a company or the immediate holding entities holding the Non-Principal Business Assets if the Non-Principal Business Asset is an asset.
5.8 Pending Completion, the Company undertakes with the Subscriber to procure that, unless with the prior written consent of the Subscriber, each member of the Group shall comply with the obligations specified in clause 6.7 of the Master Agreement.
5.9 Subject to all applicable laws, rules and regulations restricting and/or prohibiting the disclosure of information by the Company to the Subscriber, to the extent legally permissible, the Company undertakes to disclose to the Subscriber as soon as reasonably practicable the Matters, if any, occurred during the period from 1 July 2013 to the date of this Agreement. For the purpose of this clause, the "Matter" refers to any of events that the Company undertakes not to conduct without the prior consent of the Subscriber pending Completion as specified in clauses 5.7 and 5.8.
5.10 The Company shall make such announcements and issue such circular(s) disclosing particulars of this Agreement, the Hong Kong Whitewash Waiver, the Singapore Whitewash Waiver, the Special Deal Consents, the Master Acquisition Agreement and the transactions contemplated thereunder as may be required for the purposes of complying with the Company's disclosure obligations under applicable laws, rules and regulations (including but not limited to the Hong Kong Listing Rules, the Hong Kong Takeovers Codes, Code and the Securities and Futures Ordinance (Chapter 571 of the Laws of Hong Kong) and the Securities and Futures Act (Chapter 289 of Singapore)), and, during the preparation of such announcements and circular(s), the Company will consider and incorporate reasonable comments from the Subscriber.
5.11 After Completion and if permitted under applicable laws, rules and regulations and the articles of association of the Company, the Subscriber is entitled by notice in writing to the Company to require the nomination of a majority of the directors to the board of directors ("Candidates") of the Company. Subject to Completion, the Company undertakes to take appropriate actions within seven business days after notice of nomination is received from the Subscriber in relation to the nomination and the appointment of the Candidates as directors of the Company provided that the provisions of the articles of association of the Company, the Takeovers Codes, the Listing Rules and all applicable laws are complied with and the qualifications of the Candidates meet the requirements of the Listing Rules.
Appears in 1 contract
Samples: Subscription Agreement
THE COMPANY'S UNDERTAKINGS. 5.1 The Company hereby undertakes with the Subscriber that the Company shall comply in all respects with the terms and conditions of the Subscription and, in particular, that the Company shall duly allot and issue the Subscription Shares free Starting from all Encumbrances ranking pari passu in all respects with the Shares in issue as at the date of allotment.
5.2 The signing this agreement, and as long as the sums which the Company undertakes with the Subscriber to procure that the Registrar shall do all such acts and things as may be required to be done by it in connection with the Subscription.
5.3 The Company undertakes with the Subscriber to comply with (i) all laws and regulations applicable owes to the Group, including but not limited to, the laws of Hong Kong, Lender according to this agreement and (ii) all requirements of the Hong Kong Stock Exchange, the Singapore Stock Exchange, the SFC and the SIC to give effect to all matters contemplated under the Agreement, including but not limited according to the making of all necessary filings with the Hong Kong Stock Exchange, the Singapore Stock Exchange, the SFC, the SIC and the Registrar of Companies in Hong Kong.
5.4 Subject to all applicable laws restricting and/or prohibiting the disclosure of information by the Company to the Subscriber, to the extent legally permissibleSureties Documents have not been fully repaid, the Company undertakes to provide perform the Subscriber with all such information known undertakings set forth in this section hereafter (and this is unless the Lender has waived in writing the performance of any of these undertakings according to it relating its exclusive discretion from time to time).
9.1. The Company will deliver to the Group Lender, unless the information as mentioned was publicly reported by it:
9.1.1. A notice including reasonable details of any legal proceeding against the Company or otherwise threat to institute such legal proceedings as may soon as possible after the Lender became aware of this.
9.1.2. A copy of any document or correspondence with respect to the agreement pertaining to the fixed charge.
9.1.3. A notice of any breach of this agreement or any of the Sureties Documents.
9.1.4. Any other information which shall be reasonably reasonable required by the Subscriber in connection with Lender regarding the Subscription for the purposes of complying with all laws and the requirements of the Hong Kong Stock Exchange, the Singapore Stock Exchange, the SFC, the SIC and/or any other relevant regulatory authority.
5.5 Subject always to all applicable laws restricting and/or prohibiting the disclosure of information by the Company to the SubscriberCompany’s situation, to the extent legally permissiblethis information is required in order to protect the Lender’s rights according to this agreement and/or according to the Sureties Documents.
9.2. The Company will not take and/or undertake to take and/or adopt a decision to take any financial obligation or Loan from any third party (except for a financial obligation by virtue of the provisions of this agreement) and it will not grant to any third party a Loan and/or credit and/or guarantee and/or undertaking to indemnify any entity for guaranteeing the undertakings and/or the obligation of any third party.
9.3. The Company will not sell, pending Completiontransfer, pledge, or perform any other disposition in its assets or rights, except during its ordinary course of business, and in accordance with the manner of its conduct before the date of this agreement, and it will not change the field of its business as this is conducted as of the date of this agreement.
9.4. The Company will not complete a purchase, merger or other similar transaction or any transaction which will transfer the control in it (as defined in the Securities Law) to a third party. Furthermore, the Company undertakes will not establish, purchase or invest in companies, partnerships or other legal entities and it will not transfer material assets and/or initialize activities by its existing subsidiaries, except for the subsidiaries, and to the extent, that as a condition to the investment, purchase, transfer of assets and/or initializing of such activities, these subsidiaries will become a guarantee of its undertakings according to this agreement, and they will create pledges on their assets in accordance with the Subscriber that provisions of this agreement, to the Subscriber and any person authorised by the Subscriber shall be given reasonable access to inspect all the books and records and other documents of each member satisfaction of the Group during normal business hours but by prior appointment with reasonable prior notice Lender.
9.5. The Company will not perform any distribution (as defined in the Companies Law – 5759 – 1999) and without affecting it will not issue bonus shares and it will not distribute dividends. Furthermore, the normal operations Company will not return shareholders Loans and business it will not pay any payments to interested parties in the Company except as set forth in appendix 9.5 of this agreement.
9.6. The Company will act, and it will do its best, to remove the registration of the Groupexisting pledges, as defined in section 8.6 above, as soon as possible after signing this agreement, at its expense, and it will update the Lender regarding the removal process as mentioned. To the extent that any of the bank accounts the rights in which, or the deposits or securities deposited in them, are subject to any of the existing pledges still exist in the Company’s name (including account no. 5385 in Bank Hapoalim Herzliya branch, in which the deposit pertaining to the permitted pledge is deposited), the Company will refrain from performing any activities in this account, and it will not transfer to such account any sums or assets of the Company or of any of the companies affiliated with it, including the subsidiaries.
5.6 Pending Completion9.7. The Company will notify the Lender in writing as soon as possible to the extent that an event will exist which according to the Company constitutes a cause for rendering the Loan immediately payable in accordance with the provisions of section 10 hereafter.
9.8. Without derogating from any other undertaking according to this agreement, and the Sureties Documents, and the Lender’s rights by virtue of the provisions of these agreements and the provisions of any law, the Company undertakes to procure that indemnify the existing business Lender for and with respect to all the damage, the costs, the expenses, the losses, which it shall incur directly as a result of each member of the Group will continue to be operated on paying any payment at a normal basis and in the ordinary course of day-to-day operations consistent with past practice and it will not do (or allow to be done) any act or thing delay, not in the ordinary course of day-to-day operations which has a material adverse effect on the Group accordance with its payment date stipulated in these agreements, for any reason, or as a whole and in particular (but without limiting the generality result of the foregoing) will procure that the Group shall not prior to the date of Completion, do, allow, or procure any act or permit any omission which would constitute a breach of any of the Warranties or any of its undertakings set out in this Agreement, save with the Subscriber’s prior written consent (which consent shall not be unreasonably withheld or delayed).
5.7 Pending Completion, the Company undertakes with the Subscriber to procure that, at all times prior to the date of Completion, unless with the prior written consent of the Subscriber (which consent shall not be unreasonably withheld or delayed) or for the purpose of carrying out the transactions contemplated under this Agreement or the transactions contemplated under the Master Agreement, each member of the Group shall:
5.7.1 not alter its memorandum and articles of association or any similar constitutional document save for amending the memorandum and articles of association of the Company to increase the maximum number of Shares which the Company is authorised to issue from 10,000,000,000 Shares to 20,000,000,000 Shares;
5.7.2 not declare, make or pay any dividend or other distribution;
5.7.3 not alter its registered capital or its capital structure save for increasing the maximum number of Shares which the Company is authorised to issue from 10,000,000,000 Shares to 20,000,000,000 Shares;
5.7.4 not make any proposal for winding up or liquidation;
5.7.5 not propose any scheme or plan of arrangement, reconstruction, amalgamation or demerger;
5.7.6 not enter into any contract, liability or commitment which could involve expenditure or liability that exceeds RMB10,000,000 or in aggregate exceeds RMB100,000,000;
5.7.7 not issue, agree to issue, repurchase or agree to repurchase any Share or loan capital or grant, or agree to grant, any option over or right to acquire or to subscribe for any Share or loan capital;
5.7.8 other than in the ordinary course of the Group's business or as envisaged in the Agreement or the Master Agreement, not acquire or dispose of any interest in any material asset or create or undertake any capital commitment or capital expenditure or any actual or contingent liability which exceeds RMB5,000,000 or in aggregate exceeds RMB50,000,000;
5.7.9 other than liens arising by operation of law in amounts which are not material and other than in the ordinary course of the Group's business, not create or permit to arise any mortgage, charge (fixed or floating), lien, pledge, other form of security or Encumbrance or equity of whatsoever nature, whether similar to the foregoing or not, nor in respect of any part of its undertaking, property or assets of each member of the Group;
5.7.10 not borrow any money in addition to those already borrowed by any members of the Group at the date of this Agreement or those drawn under facilities already granted by financial institutions to the members of the Group as at the date of this Agreement which in aggregate exceeds RMB10,000,000;
5.7.11 except as otherwise permitted under this Clause 5.7, not incur any liabilities (including, without limitation, indebtedness or any management agreement) or enter into any transactions, agreements or arrangements other than in the ordinary course of business;
5.7.12 not give any guarantee or indemnity or act as surety for or otherwise nor to secure or accept any direct or indirect liability for the liabilities of or obligations of any person (other than members of the Group that are (1) not Non-Principal Business Assets or (2) the immediate holding entities holding the Non-Principal Business Assets);
5.7.13 not alter the terms of any financing/lending documents or security arrangements so as to have a material adverse effect on any member of the Group;
5.7.14 continue to comply with and duly perform and discharge its duties and obligations (including payment obligations) under all agreements and contracts entered into by it and discharge, at its own costs and expenses, all liabilities in relation thereto which accrue due for the period prior to Completion;
5.7.15 promptly notify the Subscriber of any circumstances or events which may give rise to any claims or liabilities including taxation (whether present or future, actual or contingent and joint or several) howsoever relating to any member of the Group or any part thereof;
5.7.16 not terminate any agreement or waive any right thereunder so as to have a material adverse effect on the relevant member of the Group;
5.7.17 other than as envisaged in this Agreement, not appoint any new directors;
5.7.18 save as required by applicable laws and regulations, not establish any new pension, retirement scheme, share option scheme, profit sharing or bonus scheme or any other benefit scheme or grant any option pursuant to the share option scheme currently in existence;
5.7.19 not make any increase exceeding 10% in the remuneration of or change other material terms of employment of the existing employees;
5.7.20 not release, compromise or write off any amount recorded in the books of account of any member of the Group as owing by any debtors of any member of the Group, save for normal bad debt provision in the ordinary and usual course of business consistent with past practice;
5.7.21 not terminate or allow to lapse any insurance policy in respect of any material assets now in effect;
5.7.22 not enter into any partnership, joint venture arrangement or profit sharing arrangement, or make any investment outside the Group;
5.7.23 not change its auditors or make any change to its accounting practices or policies, except where such change is recommended by its auditors as a consequence of a change in law or accounting rules, policies or practices;
5.7.24 not carry on any business other than its existing business;
5.7.25 not incur any expenses that are outside the ordinary course of business that exceeds RMB500,000 or in aggregate exceeds RMB5,000,000;
5.7.26 promptly notify the Subscriber when incurring any expenses that exceeds 20% in value as and when compared to the same type of expenses that was incurred prior to the execution of this Agreement;
5.7.27 not employ any new employee; and
5.7.28 not enter into any transaction with any Non-Principal Business Assets if it is a company or the immediate holding entities holding the Non-Principal Business Assets if the Non-Principal Business Asset is an asset.
5.8 Pending Completion, the Company undertakes with the Subscriber to procure that, unless with the prior written consent of the Subscriber, each member of the Group shall comply with the obligations specified in clause 6.7 of the Master Agreement.
5.9 Subject to all applicable laws, rules and regulations restricting and/or prohibiting the disclosure of information by the Company to the Subscriber, to the extent legally permissible, the Company undertakes to disclose to the Subscriber as soon as reasonably practicable the Matters, if any, occurred during the period from 1 July 2013 to the date of this Agreement. For the purpose of this clause, the "Matter" refers to any of events that the Company undertakes not to conduct without the prior consent of the Subscriber pending Completion as specified in clauses 5.7 and 5.8.
5.10 The Company shall make such announcements and issue such circular(s) disclosing particulars of this Agreement, the Hong Kong Whitewash Waiver, the Singapore Whitewash Waiver, the Special Deal Consents, the Master Agreement and the transactions contemplated thereunder as may be required for the purposes of complying with the Company's disclosure obligations under applicable laws, rules and regulations (including but not limited to the Listing Rules, the Takeovers Codes, the Securities and Futures Ordinance (Chapter 571 of the Laws of Hong Kong) and the Securities and Futures Act (Chapter 289 of Singapore)), and, during the preparation of such announcements and circular(s), the Company will consider and incorporate reasonable comments from the Subscriber.
5.11 After Completion and if permitted under applicable laws, rules and regulations and the articles of association of the Company, the Subscriber is entitled by notice in writing to the Company to require the nomination of a majority of the directors to the board of directors ("Candidates") of the Company. Subject to Completion, the Company undertakes to take appropriate actions within seven business days after notice of nomination is received from the Subscriber in relation to the nomination and the appointment of the Candidates as directors of the Company provided that the provisions of this agreement or the articles Sureties Documents (including fees and reasonable expenses of association of legal advisors which the Company, the Takeovers Codes, the Listing Rules and all applicable laws are complied with and the qualifications of the Candidates meet the requirements of the Listing RulesLender will pay from time to time).
Appears in 1 contract
THE COMPANY'S UNDERTAKINGS. 5.1 The Company hereby undertakes with the Subscriber that the Company shall comply in all respects with the terms and conditions of the Subscription and, in particular, that the Company shall duly allot and issue the Subscription Shares free from all Encumbrances ranking pari passu in all respects with the Shares in issue as at the date of allotment.
5.2 The Company undertakes with the Subscriber to procure that the Registrar shall do all such acts and things as may be required to be done by it in connection with the Subscription.
5.3 The Company undertakes with the Subscriber to comply with (i) all laws and regulations applicable 8.1 In addition to the Group, including but not limited to, the laws of Hong Kong, and (ii) all requirements of the Hong Kong Stock Exchange, the Singapore Stock Exchange, the SFC and the SIC to give effect to all matters contemplated under the Agreement, including but not limited to the making of all necessary filings with the Hong Kong Stock Exchange, the Singapore Stock Exchange, the SFC, the SIC and the Registrar of Companies in Hong Kong.
5.4 Subject to all applicable laws restricting and/or prohibiting the disclosure of information by the Company to the Subscriber, to the extent legally permissibleprovisions contained above, the Company undertakes to provide the Subscriber with all such information known to it relating to the Group or otherwise as may be reasonably required by the Subscriber in connection with the Subscription for the purposes of complying with all laws and the requirements of the Hong Kong Stock Exchange, the Singapore Stock Exchange, the SFC, the SIC and/or any other relevant regulatory authority.
5.5 Subject always to all applicable laws restricting and/or prohibiting the disclosure of information by the Company to the Subscriber, to the extent legally permissible, pending Completion, the Company undertakes with the Subscriber that the Subscriber and any person authorised by the Subscriber shall be given reasonable access to inspect all the books and records and other documents of each member of the Group during normal business hours but by prior appointment with reasonable prior notice and without affecting the normal operations and business of the Group.
5.6 Pending Completion, the Company undertakes to procure that the existing business of each member of the Group will continue to be operated on a normal basis and in the ordinary course of day-to-day operations consistent with past practice and it will not do (or allow to be done) any act or thing not in the ordinary course of day-to-day operations which has a material adverse effect on the Group as a whole and in particular (but without limiting the generality of the foregoing) will procure that the Group shall not prior to the date of Completion, do, allow, or procure any act or permit any omission which would constitute a breach of any of the Warranties or any of its undertakings set out in this Agreement, save with the Subscriber’s prior written consent (which consent shall not be unreasonably withheld or delayed).
5.7 Pending Completion, the Company undertakes with the Subscriber to procure that, at all times prior to the date of Completion, unless with the prior written consent of the Subscriber (which consent shall not be unreasonably withheld or delayed) or for the purpose of carrying out the transactions contemplated under this Agreement or the transactions contemplated under the Master Agreement, each member of the Group shall:
5.7.1 not alter its memorandum and articles of association or any similar constitutional document save for amending the memorandum and articles of association of the Company to increase the maximum number of Shares which the Company is authorised to issue from 10,000,000,000 Shares to 20,000,000,000 Shares;
5.7.2 not declare, make or pay any dividend or other distribution;
5.7.3 not alter its registered capital or its capital structure save for increasing the maximum number of Shares which the Company is authorised to issue from 10,000,000,000 Shares to 20,000,000,000 Shares;
5.7.4 not make any proposal for winding up or liquidation;
5.7.5 not propose any scheme or plan of arrangement, reconstruction, amalgamation or demerger;
5.7.6 not enter into any contract, liability or commitment which could involve expenditure or liability that exceeds RMB10,000,000 or in aggregate exceeds RMB100,000,000;
5.7.7 not issue, agree to issue, repurchase or agree to repurchase any Share or loan capital or grant, or agree to grant, any option over or right to acquire or to subscribe for any Share or loan capital;
5.7.8 other than in the ordinary course of the Group's business or as envisaged in the Agreement or the Master Agreement, not acquire or dispose of any interest in any material asset or create or undertake any capital commitment or capital expenditure or any actual or contingent liability which exceeds RMB5,000,000 or in aggregate exceeds RMB50,000,000;
5.7.9 other than liens arising by operation of law in amounts which are not material and other than in the ordinary course of the Group's business, not create or permit to arise any mortgage, charge (fixed or floating), lien, pledge, other form of security or Encumbrance or equity of whatsoever nature, whether similar to the foregoing or not, nor in respect of any part of its undertaking, property or assets of each member of the Group;
5.7.10 not borrow any money in addition to those already borrowed by any members of the Group at the date of this Agreement or those drawn under facilities already granted by financial institutions to the members of the Group as at the date of this Agreement which in aggregate exceeds RMB10,000,000;
5.7.11 except as otherwise permitted under this Clause 5.7, not incur any liabilities (including, without limitation, indebtedness or any management agreement) or enter into any transactions, agreements or arrangements other than in the ordinary course of business;
5.7.12 not give any guarantee or indemnity or act as surety for or otherwise nor to secure or accept any direct or indirect liability for the liabilities of or obligations of any person (other than members of the Group that are (1) not Non-Principal Business Assets or (2) the immediate holding entities holding the Non-Principal Business Assets);
5.7.13 not alter the terms of any financing/lending documents or security arrangements so as to have a material adverse effect on any member of the Group;
5.7.14 continue to comply with and duly perform and discharge its duties and obligations (including payment obligations) under all agreements and contracts entered into by it and discharge, at its own costs and expenses, all liabilities in relation thereto which accrue due for the period prior to Completion;
5.7.15 promptly notify the Subscriber of any circumstances or events which may give rise to any claims or liabilities including taxation (whether present or future, actual or contingent and joint or several) howsoever relating to any member of the Group or any part thereof;
5.7.16 not terminate any agreement or waive any right thereunder so as to have a material adverse effect on the relevant member of the Group;
5.7.17 other than as envisaged in this Agreement, not appoint any new directors;
5.7.18 save as required by applicable laws and regulations, not establish any new pension, retirement scheme, share option scheme, profit sharing or bonus scheme or any other benefit scheme or grant any option pursuant to the share option scheme currently in existence;
5.7.19 not make any increase exceeding 10% in the remuneration of or change other material terms of employment of the existing employees;
5.7.20 not release, compromise or write off any amount recorded in the books of account of any member of the Group as owing by any debtors of any member of the Group, save for normal bad debt provision in the ordinary and usual course of business consistent with past practice;
5.7.21 not terminate or allow to lapse any insurance policy in respect of any material assets now in effect;
5.7.22 not enter into any partnership, joint venture arrangement or profit sharing arrangement, or make any investment outside the Group;
5.7.23 not change its auditors or make any change to its accounting practices or policies, except where such change is recommended by its auditors as a consequence of a change in law or accounting rules, policies or practices;
5.7.24 not carry on any business other than its existing business;
5.7.25 not incur any expenses that are outside the ordinary course of business that exceeds RMB500,000 or in aggregate exceeds RMB5,000,000;
5.7.26 promptly notify the Subscriber when incurring any expenses that exceeds 20% in value as and when compared to the same type of expenses that was incurred prior to the execution duration of this Agreement;:
5.7.27 not employ any new employee; and
5.7.28 not enter into any transaction with any Non-Principal Business Assets if it is a company or 8.1.1 to set up the immediate holding entities holding required mechanisms and procedures, including the Non-Principal Business Assets if the Non-Principal Business Asset is an asset.
5.8 Pending Completion, the Company undertakes with the Subscriber to procure that, unless with the prior written consent purchase and operation of the Subscriber, each member of the Group shall comply with the obligations specified in clause 6.7 of the Master Agreement.
5.9 Subject to all applicable laws, rules such hardware and regulations restricting and/or prohibiting the disclosure of information by the Company to the Subscriber, to the extent legally permissible, the Company undertakes to disclose to the Subscriber as soon as reasonably practicable the Matters, if any, occurred during the period from 1 July 2013 to the date of this Agreement. For the purpose of this clause, the "Matter" refers to any of events that the Company undertakes not to conduct without the prior consent of the Subscriber pending Completion as specified in clauses 5.7 and 5.8.
5.10 The Company shall make such announcements and issue such circular(s) disclosing particulars of this Agreement, the Hong Kong Whitewash Waiver, the Singapore Whitewash Waiver, the Special Deal Consents, the Master Agreement and the transactions contemplated thereunder software as may be required for the purposes implementation of complying the provisions of this Agreement at its own cost;
8.1.2 to co-operate with MTN and do whatever may be necessary and incumbent upon it to ensure the successful implementation of this Agreement;
8.1.3 not to do anything that damages the good name and reputation of MTN. Similarly, MTN undertakes not to do anything that damages the good name and reputation of the Company's disclosure obligations under applicable laws;
8.1.4 to attend to any and all Customer queries or complaints in a prompt and courteous manner and to use its best endeavours to ensure that the Customers to whom the System SIM Cards and System Services are to be or have been supplied by the Company do not approach MTN directly with Customer queries. In the event of MTN rendering any Customer support services, rules and regulations (including but not limited MTN shall be entitled to charge for such services at rates published to the Listing RulesCompany from time to time.
8.2 The Company shall not be entitled to utilise or display any xxxx or logo which is proprietary to or licensed by MTN, the Takeovers Codeswhether such marks and logos are registered or unregistered, the Securities unless MTN’s prior written permission has been obtained. Any use of such marks or logos shall be strictly in compliance with MTN’s directions as provided for from time to time;
8.3 The Company acknowledges that it enters into this Agreement as principal and Futures Ordinance (Chapter 571 not as agent on behalf of the Laws of Hong Kong) Customers and accordingly that all obligations contained in this Agreement shall be obligations which the Securities and Futures Act (Chapter 289 of Singapore)), and, during the preparation of such announcements and circular(s)Company itself shall be obliged to fulfil. Furthermore, the Company will consider shall be responsible and incorporate reasonable comments liable for any breach of the provisions of this Agreement resulting from the SubscriberCustomer’s, their employees and/or agents acts or omissions.
5.11 After Completion 8.4 The Company shall stipulate in its agreement with the Customer that the Company may, upon written notice, cede and if permitted under applicable lawsassign its rights and obligations contained in such Agreement to a nominated third party.
8.6 The Company undertakes to, rules and regulations and the articles within ten (10) days of association MTN’s written request to do so, provide MTN with a detailed list of the CompanyMSISDN’s of those System SIM Cards which have been Deactivated by the Company as well as detailed reasons why such System SIM Cards have been Deactivated. * Material omitted pursuant to a request for confidential treatment and filed separately with the Commission.
8.7 The Company shall, as security to MTN for payment of amounts due and payable by the Company to MTN and, within thirty (30) days of the Date of Signature, allow MTN to either register a general notarial bond over its entire debtors book or require the Company to provide some other form of security acceptable to MTN which bond or security shall be provided on terms and conditions acceptable to MTN. * The conclusion of this Agreement shall be conditional upon the effective registration of such bond or supply of security within thirty (30) days of the last party signing this Agreement. The costs associated with registering the special notarial bond or supply of security shall be for MTN’s account, In the event of MTN perfecting the rights accorded to it in the special notarial bond, the Subscriber is entitled by notice in writing costs relating to such perfection shall be for the Company’s account. Should the Company not comply with the provision of this 8.7 for any reason, such failure shall be deemed to constitute a material breach of this Agreement. MTN shall provide the necessary cooperation and assistance to the Company in order to require the nomination of a majority of the directors to the board of directors ("Candidates") of the Company. Subject to Completion, allow the Company undertakes to take appropriate actions fulfil its obligations contained in this 8.7.
8.8 The Company shall, within seven thirty (30) days of MTN so requesting it, submit to MTN a comprehensive business days after notice of nomination is received from plan. This business plan shall indicate the Subscriber in relation anticipated business to the nomination and the appointment of the Candidates as directors of be conducted by the Company provided that on a quarterly basis for the provisions of the articles of association of the Company, the Takeovers Codes, the Listing Rules and all applicable laws are complied with and the qualifications of the Candidates meet the requirements of the Listing Rulestwelve (12) month period in question.
Appears in 1 contract
Samples: Provision of Cellular Telephony Network Services Agreement (MiX Telematics LTD)
