Execution version
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4 December 2007
SHARE PURCHASE AGREEMENT
amongst
YUDA LIMITED
and
ORASCOM TELECOM EURASIA LIMITED
and
ORASCOM TELECOM HOLDING S.A.E.
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TABLE OF CONTENTS
Page
1. INTERPRETATION.............................................................1
2. SALE AND PURCHASE..........................................................5
3. CONSIDERATION..............................................................5
3A. CONDITIONS.................................................................6
4. PRE-CLOSING OBLIGATIONS....................................................6
5. CLOSING....................................................................7
6. SELLER'S AND OTH'S WARRANTIES..............................................7
7. PURCHASER'S WARRANTIES.....................................................8
8. OTH'S GUARANTEE............................................................8
9. CONFIDENTIALITY AND ANNOUNCEMENTS..........................................9
10. ASSIGNMENT................................................................10
11. FURTHER ASSURANCE.........................................................10
12. ENTIRE AGREEMENT..........................................................10
13. SEVERANCE AND VALIDITY....................................................10
14. VARIATIONS................................................................10
15. REMEDIES AND WAIVERS......................................................10
16. EFFECT OF CLOSING.........................................................11
17. SURVIVAL AND RIGHTS OF RESCISSION.........................................11
18. THIRD PARTY RIGHTS........................................................11
19. PAYMENTS..................................................................11
20. COSTS AND EXPENSES........................................................11
21. NOTICES...................................................................12
22. COUNTERPARTS..............................................................13
23. GOVERNING LAW AND JURISDICTION............................................13
24. AGENT FOR SERVICE OF PROCESS..............................................13
THE SCHEDULE : WARRANTIES.....................................................15
(i)
THIS AGREEMENT is made on the 4 day of December 2007
BETWEEN:
(1) YUDA LIMITED, a company incorporated in the British Virgin Islands
whose registered office is at Pasea Estate, Road Town, Tortola, the
British Virgin Islands (the "Purchaser");
(2) ORASCOM TELECOM EURASIA LIMITED, a company established in accordance
with the laws of the British Virgin Islands whose registered office is
at 1, 17, Xxx Xxxxxxxx Xxxxxxx Street, Ta' Xinex, Malta (the "Seller");
and
(4) ORASCOM TELECOM HOLDING S.A.E., a company established in accordance
with the laws of the Arab Republic of Egypt whose principal place of
business is at 2005A Nile City Towers, Cornish El Nile, Ramlet Xxxxxxx,
Cairo, Egypt (the "OTH").
WHEREAS:
(A) The Seller, a wholly owned subsidiary of OTH, has agreed to sell and
the Purchaser has agreed to purchase, the Sale Shares (as defined in
Clause 1.1 (Interpretation)) on the terms and conditions of this
Agreement.
(B) OTH has agreed to give the guarantee set forth in Clause 8 (OTH's
Guarantee), and to undertake certain other obligations as set out in this
Agreement.
NOW IT IS HEREBY AGREED as follows:
1. INTERPRETATION
1.1 In this Agreement:
"Affiliates" means, with respect to any company, its
subsidiaries or holding companies or any
subsidiaries of such holding companies.
"Business Day" means a day (other than a Saturday or Sunday
or a public holiday) when commercial banks
generally open for business in Hong Kong and
the Arab Republic of Egypt.
"Cayman Islands Register of means the register of members of the
Members" Company kept and maintained in the Cayman
Islands from time to time.
"Cayman Islands Register of means the register of transfers of shares
Transfers" of the Company kept and maintained in the
Cayman Islands from time to time.
"Closing" means the closing of the sale and purchase
of the Sale Shares in accordance with the
terms of this
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Agreement.
"Closing Date" 4 January 2008 or such earlier date as the
parties hereto may agree in writing.
"Conditions" has the meaning given to it in Clause 3A.1.
"Companies Ordinance" means the Companies Ordinance, Chapter 32 of
the Laws of Hong Kong.
"Company" means Xxxxxxxxx Telecommunications
International Limited, a company incorporated
under the laws of the Cayman Islands, and
whose shares are listed on the Stock Exchange
(Stock Code: 2332), and whose American
depositary shares are listed on the New York
Stock Exchange, Inc. (Ticker: HTX).
"Consideration" means the consideration payable in HK$ in
immediately available funds being the
aggregate Purchase Price for the Sale Shares
as set out in Clause 3 (Consideration).
"Encumbrance" means liens, security interests, options,
rights of first refusal, rights of first
offer, tag along rights, claims, mortgages,
charges, licences to third parties, leases to
third parties or security agreements or any
other material restrictions or limitations on
the use of real or personal property or
irregularitiesin title thereto.
"Financing Parties" means those banks and financial
institutions and institutional and
professional investors that provide finance
from time to time to the Seller and its
Affiliates where such finance is
secured by the Sale Shares; and
"Financing Party" shall be construed
accordingly.
"Governmental Authority" means any international, supranational,
national, provincial, regional, federal,
state, municipal or local government, any
instrumentality, subdivision, court,
administrative or regulatory agency or
commission or other authority thereof, or any
quasi-governmental, self-regulatory or
private body exercising any regulatory,
taxing, importing or other governmental or
quasi-governmental authority, which shall
include where applicable, the Stock Exchange,
the Cairo and Alexandria Stock Exchange, the
Hong Kong Securities and Futures Commission
and the US Securities and Exchange
Commission.
"HK$" or "Hong Kong the lawful currency of Hong Kong.
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Dollars"
"holding company" has the meaning given to it in the Companies
Ordinance.
"Hong Kong" means the Hong Kong Special Administrative
Region of the People's Republic of China.
"HWL" means Xxxxxxxxx Whampoa Limited of 00xx
Xxxxx, Xxxxxxxxx Xxxxx, 00 Xxxxxxxx Xxxx,
Xxxx Xxxx.
"Law" means any statute, law, ordinance, rule,
regulation or guidelines of any Governmental
Authority.
"Listing Rules" means the Rules Governing the Listing of
Securities on the Stock Exchange.
"Long Stop Time" means 5:00 p.m. on 3 January, 2008
(Hong Kong time).
"Loss" or "Losses" means any and all losses, claims,
liabilities, damages, judgments, proceedings,
arbitration, assessments, charges, fines and
penalties, interest, reasonable costs and
expenses, including reasonable expenses of
investigation and enforcement of any claim or
indemnity and all reasonable legal and other
professional fees and expenses.
"Person" means and includes an individual, a
partnership, a joint venture, a corporation,
a limited liability company, a limited
liability partnership, a trust, an
incorporated organisation and a Governmental
Authority.
"Purchase Price" means HK$11.00 per Sale Share.
"Purchaser's Warranties" means the representations and warranties
by the Purchaser referred to in
Clause 8.1 (Purchaser's Warranties).
"Register of Members" means the register of members of the
Company kept and maintained by its Hong
Kong branch share registrar.
"Sale Shares" means 239,108,144 Shares in the issued
share capital of the Company.
"Security Agent" means a security or collateral agent
and any replacement or successor thereof,
acting for the benefit of the Financing
Parties.
"Seller's Designated means such bank account as designated in
writing by
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Account" the Seller (or the Security Agent) to the
Purchaser at least 5 Business Days prior to
the Closing Date for effecting transfer of
the Consideration pursuant to the terms
hereof.
"Shares" means ordinary shares of nominal value
HK$0.25 each in the share capital of the
Company.
"Stock Exchange" means The Stock Exchange of Hong Kong
Limited.
"subsidiary" has the meaning given to it in the Companies
Ordinance.
"Tax" or "Taxation" means any income, gross receipts,
withholding, sales or value added tax.
"Transaction Documents" means this Agreement and other
documents contemplated to be executed and
exchanged prior to or at Closing.
"Warranties" means the representations and warranties in
Clause 7.1 (Seller's and OTH's Warranties)
and set out in the Schedule (Warranties).
1.2 In this Agreement, unless the context otherwise requires:
(i) any reference in this Agreement to "writing" or comparable
expressions includes a reference to facsimile transmission or
comparable means of communication (excluding, for the avoidance of
doubt, email);
(ii) words expressed in the singular number shall include the plural
and vice versa, words expressed in the masculine shall include the
feminine and neuter gender and vice versa;
(iii) references to Clauses, Schedules and Recitals are references to
clauses, schedules and recitals of this Agreement;
(iv) reference to "day" or "days" are to calendar days;
(v) this "Agreement" or any other agreement or document shall be
construed as a reference to this Agreement or, as the case may be,
such other agreement or document as the same may have been, or may
from time to time be, amended, varied, novated or supplemented;
(vi) "include," "includes," and "including" are deemed to be followed
by "without limitation" whether or not they are in fact followed
by such words or words of similar import;
(vii) the table of contents and headings are inserted for convenience
only and do not affect the construction of this Agreement;
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(viii) references herein to statutory provisions shall be construed as
references to those provisions as amended or re-enacted or as
their application is modified by other provisions and shall
include any provisions of which they are re-enactments (whether
with or without modification) but in each case as at the date of
this Agreement;
(ix) references to a "company" include any company, corporation or
other body corporate wherever and however incorporated or
established;
(x) references to "party" or "parties" are to a party to or the
parties to this Agreement; and
(xi) references to any English legal term for any action, remedy,
method of financial proceedings, legal document, legal status,
court, official or any legal concept or thing shall, in respect of
any jurisdiction other than England, be deemed to include what
most nearly approximates in that jurisdiction to the English
legal term.
1.3 The Schedule to this Agreement is incorporated into and form an integral
part of this Agreement.
2. SALE AND PURCHASE
2.1 The Seller shall sell and the Purchaser shall purchase the Sale Shares
with all rights now or in the future attaching to them (including the
right to receive all dividends, distributions or any return of capital
declared, made or paid on or after the date of this Agreement) on the
terms and conditions of this Agreement.
2.2 The Seller covenants and confirms that, subject only to satisfaction of
the Conditions, it has the right to transfer legal and beneficial title to
the Sale Shares.
2.3 The Seller covenants and confirms that the Sale Shares shall be sold and
purchased at Closing free from all Encumbrances.
2.4 The Seller waives and shall procure the waiver of any restrictions on
transfer (including all pre-emption rights) which may exist in relation to
the Sale Shares.
2.5 Neither the Seller nor the Purchaser shall be obliged to complete the sale
and purchase of any of the Sale Shares unless the sale and purchase of all
the Sale Shares is completed simultaneously.
3. CONSIDERATION
The consideration for the sale and purchase of the Sale Shares shall be
the payment of the sum of HK$2,630,189,584 (Hong Kong Dollars Two Billion
Six Hundred and Thirty Million One Hundred and Eighty Nine Thousand Five
Hundred and Eighty Four Only) at Closing in accordance with Clause 5.2.
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3A. CONDITION
3A.1 The agreement to sell and purchase the Sale Shares contained in Clause 2
is conditional upon the delivery to the Seller of:
(i) a deed of release relating to the security over the Sale
Shares previously granted in favour of the Security Agent, and
executed by the Security Agent and/or such other Financing
Party or Parties as may be required for this purpose; and
(ii) any other consents required by the Security Agent or any such
Financing Party or Parties for the transfer of the Sale Shares
pursuant to the terms of the financing secured by the Sale
Shares (the "Conditions").
3A.2 The Seller shall use its best endeavours to ensure that the Conditions
are fulfilled promptly after the date of this Agreement, and in any
event on or before the Long Stop Time. The Seller shall notify the
Purchaser in writing promptly upon becoming aware that the Conditions
have been fulfilled.
3A.3 If the Conditions are not fulfilled by the Long Stop Time, the
Purchaser shall be entitled to terminate this Agreement by written
notice to the others. In such event none of the parties shall have any
claim under this Agreement of any nature whatsoever against the others
except in respect of any rights and liabilities which have accrued
before such termination.
4. PRE-CLOSING OBLIGATIONS
4.1 Simultaneous with or after the execution and delivery of this Agreement
by all parties and prior to the Closing Date, the Seller shall deliver
or procure the delivery of the following to the Purchaser:
(a) a written request in the prescribed form for removal of the Sale
Shares registered in the name of the Security Agent (or its
nominee) from the Register of Members to the Cayman Islands
Register of Members;
(b) a certified extract of the written resolutions of the directors
of the Seller approving and authorising the execution, delivery
and performance of this Agreement (including the sale of the Sale
Shares to the Purchaser as of and with effect from the Closing
Date) and each of the other Transaction Documents to which it is
a party;
(c) a certified extract of the written resolutions of the directors
of OTH approving and authorising the execution, delivery and
performance of this Agreement and each of the other Transaction
Documents to which it is a party;
(d) a certified copy of each power of attorney (if any) under which
any document to be delivered to the Purchaser has been executed; and
(e) an original incumbency certificate from the registered agent
of the Seller in the British Virgin Islands (or its equivalent
in Malta) dated prior to the date of this Agreement.
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4.2 Simultaneous with or after the execution and delivery of this Agreement
by all parties and prior to the Closing Date, the Purchaser shall
deliver to the Seller:
(a) deliver to the Seller a certified extract of the resolutions of the
directors of the Purchaser approving and authorising the execution,
delivery and performance of this Agreement and each of the other
Transaction Documents to which it is a party; and
(b) deliver to the Seller a certified copy of each power of attorney
(if any) under which any document to be delivered to the Seller has
been executed.
5. CLOSING
5.1 Subject to fulfilment of the Conditions, Closing shall take place at 12
noon, Hong Kong time, on the Closing Date at the offices of HWL at
00/X, Xxxxxxxxx Xxxxx, 00 Xxxxxxxx Xxxx, Xxxx Xxxx or at such other
time or place as is agreed in writing by the Seller and the Purchaser.
5.2 At Closing and against delivery to the Seller of a copy irrevocable
instructions issued for payment of the full amount of the Consideration
into the Seller's Designated Account by wire transfer, the Seller
shall:
(i) deliver or procure the delivery to the Purchaser or a Person
designated by the Purchaser of a stock transfer form in
relation to the transfer of the Sale Shares to the Purchaser
duly executed by the Seller or the Security Agent (or its
nominee);
(ii) provide such assistance as the Purchaser may reasonably
require for effecting registration of the transfer of the Sale
Shares to the Purchaser as of the Closing Date; and
(iii) deliver or procure that there be delivered to the Purchaser or
a Person designated by the Purchaser an original share
certificate issued by the Company in the name of the Seller or
the Security Agent (or its nominee) representing the Sale
Shares for cancellation.
5.3 If the provisions of Clause 5.2 are not complied with on the Closing
Date, the Purchaser shall not be obliged to complete this Agreement and
may treat this Agreement as terminated for breach of condition and
require immediate repayment of the Consideration to the extent received
in the Seller's Designated Account by the Seller (without limiting the
Purchaser's rights and remedies under this Agreement).
6. SELLER'S AND OTH'S WARRANTIES
6.1 The Seller hereby represents and warrants to the Purchaser that each of
the Warranties is true and accurate in all respects and not misleading
as at the date of this Agreement.
6.2 OTH hereby represents and warrants to the Purchaser that each of Warranty
1.1(ii) and, insofar as they relate to OTH, Warranties 1.2(i), (ii) and
(iii) and 1.3(ii) are true and accurate in all respects and not
misleading as at the date of this Agreement.
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6.3 The Seller and OTH acknowledge that the Purchaser are entering into this
Agreement on the basis of and in reliance upon representations in the
terms of the Warranties.
6.4 Each of the Warranties shall be separate and independent and (unless
expressly provided otherwise) shall not be limited by reference to any
other Warranty or by anything in this Agreement.
7. PURCHASER'S WARRANTIES
7.1 The Purchaser hereby represents and warrants to the Seller and OTH as
of the date of this Agreement that each of the warranties and
representations in this Clause 7 is true and accurate in all respects
and not misleading as at the date of this Agreement:
(i) The Purchaser is wholly owned and controlled ultimately by Xx
Xx Xx-xxxxx and is a corporation duly organised, validly
existing and in good standing under the laws of the British
Virgin Islands.
(ii) The Purchaser is not in receivership or liquidation nor has it
taken any step to enter liquidation, and no petition has been
presented for winding up the Purchaser. There are no grounds
on which a petition or application could be based for the
winding up or appointment of a receiver of the Purchaser.
(iii) The Purchaser has the corporate power and authority to
execute, deliver and perform its obligations under and
consummate the transactions contemplated by each of the
Transaction Documents to which it is a party and the other
instruments and agreements to be executed and delivered by the
Purchaser as contemplated hereby and thereby.
(iv) The entry into and performance of the Transaction Documents to
which the Purchaser is a party will not constitute a breach by
the Purchaser of or default under: (A) any provision of the
organisational documents of the Purchaser; (B) any legally
binding obligation or any material agreement or undertaking or
the terms of any guarantee by which the Purchaser is bound; or
(C) any Law applicable to the Purchaser;
7.2 Each of the Purchaser's Warranties shall be separate and independent
and (unless expressly provided otherwise) shall not be limited by
reference to any other Purchaser's Warranty or by anything in this
Agreement.
7.3 The Purchaser acknowledges that the Seller and OTH are entering into
this Agreement on the basis of and in reliance upon representations in
the terms of the Purchaser's Warranties.
8. OTH'S GUARANTEE
8.1 In consideration of the Purchaser entering into this Agreement, OTH
unconditionally and irrevocably guarantees to the Purchaser the due and
punctual performance and payment by the Seller of all its financial and
other obligations under or pursuant to this Agreement (the "Seller's
Guaranteed Obligations").
8.2 If and whenever the Seller defaults for any reason whatsoever in the
performance of any of the Seller's Guaranteed Obligations, OTH shall
immediately upon demand
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unconditionally perform (or procure the performance of) and satisfy (or
procure the satisfaction of) the Seller's Guaranteed Obligations as if
it was the principal obligor in regard to which such default has been
made.
8.3 This guarantee is to be a continuing guarantee and accordingly is to
remain in force until all Seller's Guaranteed Obligations shall have
been performed or satisfied. This guarantee is in addition to and
without prejudice to and not in substitution for any rights or security
which the Purchaser may now or hereafter have or hold for the
performance and observance of the Seller's Guaranteed Obligations.
8.4 As a separate and independent obligation, OTH agrees (as primary
obligor and not only as surety) to indemnify, defend and hold harmless
the Purchaser from time to time (without set-off or counterclaim) from
and against any and all Losses suffered by the Purchaser to the extent
of any relevant limit on the liability of the Seller in this Agreement
as a result of (i) the failure by the Seller to perform any of the
Seller's Guaranteed Obligations; or (ii) any of the Seller's Guaranteed
Obligations (including, without limitation, any moneys payable) not
being enforceable, effective against or recoverable from the Seller by
reason of any legal limitation, disability or incapacity on or of the
Seller or any other fact or circumstances whatsoever (other than any
limitation imposed by this Agreement). The amount of the Loss or of any
payment to be made by OTH pursuant to this Clause 8.4 or any other
provision of this Clause 8 shall be equal to, and shall in no
circumstances exceed, the amount which the Purchaser would otherwise
have been entitled to recover from the Seller under the terms of this
Agreement.
8.5 The liability of OTH under this Clause 8:
(i) shall not be released or diminished by any variation of the
Seller's Guaranteed Obligations or any forbearance, neglect or
delay in seeking performance of the Seller's Guaranteed
Obligations or any granting of time for such performance; and
(ii) shall not be affected or impaired by reason of any other fact
or event which in the absence of this provision would or might
constitute or afford a legal or equitable discharge or release
or a defence to a guarantor.
8.6 OTH waives any right it may have of first requiring the Purchaser to
proceed against the Seller before claiming from OTH under this Clause 8.
9. CONFIDENTIALITY AND ANNOUNCEMENTS
No announcement, statement, press conference or other communication
shall be (or authorised to be) made, released, issued or held by or on
behalf of any party or its directors, officers, employees, agents or
advisers before, on or after Closing concerning this Agreement, or the
subject matter or provisions of, or transactions or matters referred to
in or contemplated by, or negotiations leading to, this Agreement,;
provided that nothing in the foregoing shall prohibit the issue or
release by any party of any announcement or circular if and to the
extent required by law or any regulatory body or the rules of any
recognised stock exchange, including the Stock Exchange, New York Stock
Exchange, Inc. and the Cairo and Alexandria Stock Exchange, on which
the shares of such party, its Affiliates or the Company are listed but
the party
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with an obligation to issue or release an announcement or a circular
shall consult with the other parties insofar as is reasonably
practicable before complying with such an obligation.
10. ASSIGNMENT
This Agreement may not be transferred, assigned, pledged or
hypothecated by any party hereto without the express written consent of
the other parties hereto.
11. FURTHER ASSURANCE
The Seller and OTH shall from time to time and at their own cost do,
execute and deliver or procure to be done, executed and delivered all
such further acts, documents and things required by, and in a form
reasonably satisfactory to, the Purchaser to give full effect to this
Agreement and its rights, powers and remedies under this Agreement. The
Purchaser shall from time to time and at their own cost do, execute and
deliver or procure to be done, executed and delivered all such further
acts, documents and things required by, and in a form reasonably
satisfactory to, the Seller and OTH to give full effect to this
Agreement and its rights, powers and remedies under this Agreement.
12. ENTIRE AGREEMENT
This Agreement, together with each other Transaction Documents,
constitute the whole agreement between the parties and supersedes any
previous arrangements or agreements between them relating to the sale
and purchase of the Sale Shares.
13. SEVERANCE AND VALIDITY
13.1 If any provision of this Agreement is or becomes illegal, invalid or
unenforceable in any respect under the law of any jurisdiction, such
provision shall apply with whatever deletion or modification is
necessary so that the provision is legal, valid and enforceable and
gives effect to the commercial intention of the parties.
13.2 To the extent it is not possible to delete or modify the provision, in
whole or in part, under Clause 13.1, then such provision or part of it
shall, to the extent that it is illegal, invalid or unenforceable, be
deemed not to form part of this Agreement and the legality, validity
and enforceability of the remainder of this Agreement shall, subject to
any deletion or modification made under Clause 13.1, not be affected.
14. VARIATIONS
No variation of this Agreement shall be effective unless in writing and
signed by the parties.
15. REMEDIES AND WAIVERS
15.1 No waiver of any right under this Agreement shall be effective unless
in writing. Unless expressly stated otherwise a waiver shall be
effective only in the circumstances for which it is given.
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15.2 No delay or omission by any party in exercising any right or remedy
provided by law or under this Agreement shall constitute a waiver of
such right or remedy. 15.3 The single or partial exercise of a right
or remedy under this Agreement shall not preclude any other nor
restrict any further exercise of any such right or remedy.
15.3 The single and partial exercise of a right or remedy under this Agreement
shall not preclude any rights or remedies provided by law.
15.4 The rights and remedies provided in this Agreement are cumulative and do
not exclude any rights or remedies provided by law.
16. EFFECT OF CLOSING
The provisions of this Agreement which remain to be performed following
Closing shall continue in full force and effect notwithstanding
Closing.
17. SURVIVAL AND RIGHTS OF RESCISSION
17.1 Subject to Clause 5.3, no party shall have any right to rescind this
Agreement under any circumstance.
17.2 The representations and warranties of any party contained in this
Agreement shall survive the sale and purchase of the Sale Shares pursuant
to this Agreement.
18. THIRD PARTY RIGHTS
This Agreement is made for the benefit of the parties, their successors
and permitted assigns and is not intended to benefit or be enforceable
by any other person.
19. PAYMENTS
19.1 Any amount payable by the Seller or OTH to the Purchaser or by the
Purchaser to the Seller or OTH shall be made in full without set-off or
counter-claim and free from any deduction or withholding whatsoever,
except as required by law.
19.2 If any deduction or withholding is required by law to be made from any
payment or if the recipient is subject to Tax in respect of such
payment, the payer shall increase the amount of the payment to the
extent necessary to ensure that the net amount received and retained by
the recipient (after taking into account all deductions, withholdings
or Tax) is equal to the amount it would have received had the payment
not been subject to any such deductions, withholdings or Tax.
20. COSTS AND EXPENSES
20.1 Except as provided otherwise, each party shall pay its own costs and
expenses in connection with the negotiations, preparation and
performance of this Agreement and the other Transaction Documents.
20.2 Any transfer, registration, stamp, documentary or similar taxes
chargeable in connection with the transfer of the Sale Shares under
this Agreement shall be borne equally by the Seller and the Purchaser.
The Seller and the Purchaser shall co-operate in minimising any such
taxes and in the timely making of all filings, returns, reports and
forms as may be required in connection therewith.
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21. NOTICES
21.1 Any notice or other communication to be given under or in connection with
this Agreement ("Notice") shall be in the English language in writing and
signed by or on behalf of the party giving it and marked for the attention
of the relevant party. A Notice may be delivered personally or sent by
fax, pre-paid recorded delivery or pre paid registered airmail to the
address or fax number provided in Clause 21.3.
21.2 A Notice shall be deemed to have been received:
(i) at the time of delivery if delivered personally;
(ii) at the time of transmission if sent by fax;
(iii) two Business Days after the time and date of posting if sent by
pre-paid recorded delivery; or
(iv) five Business Days after the time and date of posting if sent by
pre-paid registered airmail,
provided that if deemed receipt of any Notice occurs after 6.00
p.m. or is not on a Business Day, deemed receipt of the Notice
shall be 9.00 a.m. on the next Business Day. References to time
in this Clause 21 are to local time in the country of the
addressee.
21.3 The addresses and fax numbers for service of Notice are:
Purchaser:
Name: Yuda Limited
Address: x/x 0xx Xxxxx,
Xxxxxx Xxxx Center,
0 Xxxxx'x Xxxx Xxxxxxx,
Xxxx Xxxx
For the attention of: Xx. Xxxx Xxx
Fax number: (000) 0000 0000
Seller:
Name: Orascom Telecom Eurasia Limited
Address: x/x 0000X Xxxx Xxxx Xxxxxx - Xxxxx Xxxxx
Cornish El Xxxx
Xxxxxx Xxxxxxx - 00000
Xxxxx, Xxxxx
For the attention of: Legal Department
Fax number: 202 2461 5055
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OTH
Name: Orascom Telecom Holding S.A.E.
Address: 2005A Nile City Towers - South Tower
Cornish El Xxxx
Xxxxxx Xxxxxxx
Cairo
Egypt
For the attention of: Xx. Xxxxxx Xxxxxxx, Chairman & CEO
Fax number: 202 2461 5055
With a copy to: Orascom Telecom Holding S.A.E.
Address: 2005A Nile City Towers - South Tower
Cornish El Xxxx
Xxxxxx Xxxxxxx
Cairo
Egypt
For the attention of: Legal Department
Fax number: 202 2461 5165
21.4 A party shall notify the other parties of any change to its address in
accordance with the provisions of this Clause 21 provided that such
notification shall only be effective on the later of the date specified
in the notification and 5 (five) Business Days after deemed receipt.
22. COUNTERPARTS
This Agreement may be executed in counterparts and shall be effective
when each party has executed a counterpart. Each counterpart shall
constitute an original of this Agreement and all counterparts taken
together shall constitute one and the same agreement. Delivery of a
facsimile executed counterpart of the signature page shall be effective
as delivery of an original executed counterpart of this Agreement.
23. GOVERNING LAW AND JURISDICTION
23.1 This Agreement shall be governed by and construed in accordance with
English law.
23.2 The parties irrevocably agree that the courts of England are to have
non-exclusive jurisdiction to settle any dispute which may arise out of
or in connection with this Agreement and proceedings in respect of any
dispute may be brought in such courts.
24. AGENT FOR SERVICE OF PROCESS
24.1 The Purchaser irrevocably appoints Xxxxxxxxx Whampoa Agents (UK)
Limited of Xxxxxxxxx House, 0 Xxxxxx Xxxx, Xxxxxxxxx, Xxxxxx XX00 0XX,
the United Kingdom and each of the Seller and OTH irrevocably appoints
Law Debenture of Corporate Services Limited of Xxxxx Xxxxx, 000 Xxxx
Xxxxxx, Xxxxxx, Xxxxxxx, XX0X 0XX, in each case as its agent for
service of process in England.
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24.2 If any person appointed as agent for service of process ceases to act
as such the relevant party shall immediately appoint another person to
accept service of process on its behalf in England and notify the other
parties of such appointment. If it fails to do so within ten Business
Days any other party shall be entitled by notice to the other parties
to appoint a replacement agent for service of process.
IN WITNESS WHEREOF each party has executed this Agreement, or caused this
Agreement to be executed by its duly authorised representatives.
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Schedule
Warranties
The Seller hereby represents and warrants to the Purchaser as of the date hereof
(save in respect of 1.1(ii) and the Warranties given by OTH in 1.2(i), (ii) and
(iii) and 1.3(ii)) and OTH represents and warrants to the Purchaser as at the
date hereof as set out in 1.1(ii) and, insofar as they relate to OTH, 1.2(i),
(ii) and (iii) and 1.3(ii) only, as follows:
1.1 Organisation of the Seller and OTH.
(i) The Seller is a corporation duly organised under the laws of the British
Virgin Islands, and is validly existing and in good standing under the
laws of Malta.
(ii) OTH is a corporation duly organised, validly existing and in good
standing under the laws of the Arab Republic of Egypt.
(iii) The Seller is not in receivership or liquidation nor has it taken any step
to enter liquidation, and no petition has been presented for winding up
the Seller. There are no grounds on which a petition or application could
be based for the winding up or appointment of a receiver of the Seller.
1.2 Authority and Enforceability.
(i) Each of the Seller and OTH has the corporate power and authority to
execute, deliver and perform its obligations under and consummate the
transactions contemplated by each of the Transaction Documents to which
it is a party and the other instruments and agreements to be executed
and delivered by the Seller or OTH as contemplated hereby and thereby,
including the sale and transfer of the Sale Shares pursuant to this
Agreement.
(ii) The execution, delivery and performance of the Transaction Documents to
which either the Seller or OTH is a party, and all other instruments
and agreements to be executed and delivered by the Seller or OTH as
contemplated hereby and thereby, and the consummation of the
transactions contemplated hereby and thereby, have been duly authorised
by the respective directors and, to the extent required, the respective
shareholders of the Seller and OTH, as relevant, and no other corporate
or shareholder action on the part of the Seller or OTH is necessary to
authorise the execution, delivery and performance of the Transaction
Documents to which the Seller or OTH is a party, such other instruments
and agreements contemplated hereby and thereby or the consummation of
the transactions contemplated hereby and thereby.
(iii) The Transaction Documents to which either the Seller or OTH is a party
and all other instruments and agreements to be executed and delivered
by the Seller or OTH as contemplated hereby and thereby, when delivered
in accordance with the terms hereof, assuming the due execution and
delivery of the Transaction Documents and each such other document by
the other parties hereto and thereto, shall have been duly executed and
delivered by each of the Seller and OTH and shall be valid and binding
obligations of each of the Seller and OTH enforceable against them in
accordance with their terms, except to the extent that their
enforceability may be subject to
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applicable bankruptcy, insolvency, reorganisation, moratorium or
similar laws affecting the enforcement of creditors' rights generally
or to general equitable principles.
1.3 Consents and Approvals; No Violations.
(i) The Seller has obtained all consents and made all notifications
necessary for its entry into and performance of its obligations under
the Transaction Documents.
(ii) The entry into and performance of the Transaction Documents to which
the Seller or OTH is a party will not constitute a breach by the Seller
or OTH of or default under: (A) any provision of the organisational
documents of the Seller or OTH; (B) any legally binding obligation or
any material agreement or undertaking or the terms of any guarantee by
which the Seller or OTH is bound; or (C) any Law applicable to the
Seller and OTH.
(iii) The Seller has not made the decision to enter into this Agreement or to
sell the Sale Shares as a result of and on the basis of any unpublished
information relating to the Company or the Company Subsidiaries which
in the reasonable opinion of the Seller would constitute "relevant
information" (as defined in Part XIII and XIV of the Securities and
Futures Ordinance of Hong Kong (Cap.571)).
1.4 Sale Shares
The Seller is the beneficial owner of and has good and valid title to
the Sale Shares free and clear of any Encumbrance other than the
security created in favour of the Security Agent which will be released
prior to or at Closing. All of the Sale Shares are fully paid.
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SIGNED by Xxxxx Xxxx )
for and on behalf of )
YUDA LIMITED in the presence of: ) Signature: /s/ Xxxxx Xxxx
-------------------------------
Witness
Signature: /s/ Xxx Sin Yu
Name: Xxx Sin Xx, Xxxxxxxxxx
Address: Solicitor, Hong Kong SAR
Occupation: _______________________
SIGNED by _________________________)
for and on behalf of )
ORASCOM TELECOM EURASIA LIMITED )
in the presence of: ) Signature:
-------------------------------
Witness
Signature: _______________________
Name: _______________________
Address: _______________________
Occupation: _______________________
SIGNED by _________________________)
for and on behalf of )
ORASCOM TELECOM HOLDING S.A.E. )
in the presence of: ) Signature:
-------------------------------
Witness
Signature: _______________________
Name: _______________________
Address: _______________________
Occupation: _______________________
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SIGNED by _________________________)
for and on behalf of )
YUDA LIMITED in the presence of: ) Signature:
-------------------------------
Witness
Signature: _______________________
Name: _______________________
Address: _______________________
Occupation: _______________________
SIGNED by Xxxxxx Xxxxxxx )
for and on behalf of )
ORASCOM TELECOM EURASIA LIMITED )
in the presence of: ) Signature: /s/ Xxxxxx Xxxxxxx
-------------------------------
Witness
Signature: /s/ Xxxx Xxxxxxx
Name: Xxxx Xxxxxxx
Address: Nile City Towers-South Tower
Cornish El Nile - Cairo-Egypt
Occupation: VP Legal Affairs - Orascom Telecom
SIGNED by Xxxxxx Xxxxxxx )
for and on behalf of )
ORASCOM TELECOM HOLDING S.A.E. )
in the presence of: ) Signature: /s/ Xxxxxx Xxxxxxx
-------------------------------
Witness
Signature: /s/ Xxxx Xxxxxxx
Name: Xxxx Xxxxxxx
Address: Nile City Towers-South Tower
Cornish El Nile - Cairo-Egypt
Occupation: VP Legal Affairs - Orascom Telecom
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