Exhibit 2
EXECUTION VERSION
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21 December 2005
SHARE PURCHASE AGREEMENT
BETWEEN
XXXXXXXXX TELECOMMUNICATIONS INVESTMENT HOLDINGS LIMITED
and
XXXXXXXXX WHAMPOA LIMITED
and
ORASCOM TELECOM EURASIA LIMITED
and
ORASCOM TELECOM HOLDING S.A.E.
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THIS AGREEMENT is made on the 21st day of December 2005
BETWEEN:
(1) XXXXXXXXX TELECOMMUNICATIONS INVESTMENT HOLDINGS LIMITED, a company
incorporated in the British Virgin Islands whose registered office is at
P.O. Box 957, Offshore Incorporations Centre, Road Town, Tortola,
British Virgin Islands (the "Seller");
(2) XXXXXXXXX WHAMPOA LIMITED, a company incorporated in Hong Kong whose
registered office is at 00xx Xxxxx, Xxxxxxxxx Xxxxx, 00 Xxxxxxxx Xxxx,
Xxxx Xxxx ("HWL");
(3) ORASCOM TELECOM EURASIA LIMITED, a company established in accordance
with the laws of the British Virgin Islands whose registered office is
at Trident Xxxxxxxx, Wickhams Cay, Road Town, Tortola, British Virgin
Islands (the "Purchaser Nominee"); 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 "Purchaser").
WHEREAS:
(A) The Seller, a wholly owned subsidiary of HWL, 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) HWL has agreed to give the guarantee set forth in Clause 9 (HWL's
Guarantee), and to undertake certain other obligations as set out in
this Agreement.
(C) The Purchaser Nominee, a wholly owned subsidiary of the Purchaser, has
been nominated by the Purchaser to acquire the Sale Shares.
IT IS AGREED:
1. INTERPRETATION
1.1 In this Agreement:
"Accounting Date" means 31 December 2004.
"Accounts" means the audited consolidated balance
sheet of the Group made up as at the
Accounting Date and the related audited
consolidated profit and loss account,
cash flow statement and statement of
changes in equity of the Group for the
year ended on the Accounting Date,
together with the auditors' and
directors' reports and the notes
thereto.
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"Affiliate" means, with respect to any company, its
subsidiaries or holding companies or any
subsidiaries of such holding companies.
"Amended and Restated means the amended and restated
Registration Rights registration rights agreement dated of
Agreement" even date herewith entered into by and
amongst the Seller, the Purchaser, the
Company and Xxxxxx Kong (Holdings)
Limited.
"Annual Report" means the annual report of the
Group for the year ended 31 December
2004 filed with the Stock Exchange.
"Business Day" means a day (other than a Saturday
or Sunday or a public holiday) when
commercial banks are generally open for
business in Hong Kong, London, New York
and the Arab Republic of Egypt.
"Cash Consideration" means the sum of US$130,225,625.00 being
10% of the Consideration.
"Cayman Islands Register means the register of members of the
of Members" Company kept and maintained in the
Cayman Islands from time to time.
"Cayman Islands Register means the register of transfers of
of Transfers" shares 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
Agreement.
"Closing Date" means the date of this Agreement.
"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).
"Company Subsidiaries" means Company's subsidiaries as at the
date of this Agreement.
"Confidentiality Agreement" means the confidentiality agreement
dated as of 16 October 2005 and made
between the Seller and the Purchaser.
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"Consideration" means the sum of US$1,302,256,248.81
being the US Dollar equivalent
(calculated using an exchange rate of
HK$7.7522 to US$1.00) of the number of
Sale Shares multiplied by the Purchase
Price to be settled in accordance with
Clause 3.
"Contingent Liabilities" means guarantees or other contingent
liabilities (including indemnifications)
with respect to the Group.
"Co-operation Agreement" means the co-operation agreement entered
into on the date hereof by and between
the Company and the Purchaser.
"Data Room" means the data room established for the
benefit of the Purchaser located at
20/F, Xxxxxxxxx Telecom Tower, 99 Xxxxxx
Xxx Road, Xxxxx Xx, Hong Kong and
containing all the documents set forth
in schedule 1 to the Disclosure Letter
("Disclosure Documents").
"Disclosure Letter" means the letter of today's date from
the Seller to the Purchaser and the
Purchaser's Nominee.
"Employee Share Option Plans" mean the employee share option plans and
schemes adopted by the Company by the
date of this Agreement which relate to
the issue of Shares.
"Encumbrance" means liens, security interests,
options, rights of first refusal, rights
of first offer, tag along rights,
claims, mortgages, charges, licenses 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
irregularities in title thereto.
"Exchange Act" means the U.S. Securities Exchange Act
of 1934, as amended.
"Financing Parties" means those banks and financial
institutions and institutional and
professional investors (other than the
Seller) that provide finance or
re-financing from time to time to the
Purchaser and its Affiliates relating to
the acquisition of the Sale Shares by
the Purchaser Nominee; 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
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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 SEC.
"Group" means the Company and each of the
Company Subsidiaries and the expressions
"members of the Group" and "Group
Company" shall be construed accordingly.
"HK$" Hong Kong dollars, being the lawful
currency of Hong Kong.
"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.
"Hong Kong Prospectus" means the prospectus of the Company
dated 30 September 2004 in relation to
the global offering of shares in the
Company.
"HSBC Nominee" means HSBC Nominees (Hong Kong) Limited
acting for the benefit of the Seller
pursuant to the Security Document.
"Indebtedness" in respect of any Person, means and
includes (i) indebtedness for borrowed
money or indebtedness issued or incurred
in substitution or exchange for
indebtedness for borrowed money in each
case from banks or other third party
lenders; (ii) indebtedness evidenced by
any note, bond, debenture or other debt
instrument or debt security; (iii)
indebtedness secured by an Encumbrance
on assets or properties of such Person
(for each such indebtedness, exceeding
US$5 million); and (iv) obligations
under any interest rate, currency or
other hedging agreement.
"Interim Accounting Date" means 30 June 2005.
"Interim Accounts" means the unaudited consolidated balance
sheet of the Group made up as at the
Interim Accounting Date and the related
unaudited consolidated profit and loss
account, cash flow statement and
statement of changes in equity of the
Group for the six months ended on the
Interim Accounting Date.
"Interim Report" means the semi-annual report of the
Group for the six months ended 30 June
2005 filed with the Stock Exchange.
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"Investment Company Act" means the U.S. Investment Company
Act of 1940, as amended.
"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.
"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.
"Material Adverse Effect" means (i) any materially adverse change
in or effect on the business,
assets, liabilities, results of
operation or financial condition of the
Group taken as a whole and (ii) any
materially adverse change in or effect
on the business, assets, liabilities,
results of operations or financial
condition of any of the Principal
Subsidiary Companies, provided, in
relation to each of (i) and/or (ii),
that no change, event or effect that
results from changes in macro economic
circumstances generally or in the
country in which the Company or a
Principal Subsidiary Company operates or
in the constitution of the government in
such country shall be taken into account
in determining whether there has been a
Material Adverse Effect.
"OTH Financing" means any finance from time to time
provided by the Financing Parties.
"OTH Guarantee" means the deed of guarantee dated the
date hereof granted by the Purchaser in
favour of the Seller.
"Permit" means any permit, certificate, license,
consent or authorisation of any
Governmental Authority.
"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.
"Principal Subsidiary means each of the Company Subsidiaries
Company" listed in Schedule 3 (Principal
Subsidiary Companies), and collectively
the "Principal Subsidiary Companies".
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"Promissory Note" means the promissory note issued by the
Purchaser Nominee on the date of this
Agreement in favour of the Seller for
the principal amount of
US$1,172,030,623.81.
"Purchase Price" means HK$11.00 per Sale Share.
"Purchaser's Group" means the Purchaser and the Purchaser's
subsidiaries as at the date of this
Agreement.
"Purchaser's and Purchaser means the representations and warranties
Nominee's Warranties" by the Purchaser and the Purchaser
Nominee referred to in Clause 8.1
(Purchaser's and Purchaser Nominee's
Warranties).
"Register of Directors" means the register of directors of the
Company kept and maintained by it from
time to time.
"Sale Shares" means 917,759,172 shares in the issued
share capital of the Company.
"SEC" means the U.S. Securities and Exchange
Commission.
"Securities Act" means the U.S. Securities Act of 1933,
as amended.
"Security Agent" means a security or collateral agent and
any replacement or successor thereof,
acting for the benefit of the Financing
Parties.
"Security Document" means the legal mortgage dated the date
hereof created by the Purchaser Nominee
in favour of the Seller for securing all
monies payable in respect of the
Promissory Note.
"Seller's Designated Account" means such bank account as designated in
writing by the Seller to the Purchaser
prior to the date of this Agreement for
effecting transfer of the Cash
Consideration pursuant to the terms
hereof.
"Shareholders' Agreement" means the shareholders' agreement
entered into on the date hereof by and
among the Seller, HWL, the Purchaser and
the Purchaser Nominee in relation to the
Company.
"Shares" means ordinary shares of nominal value
HK$0.25 each in the share capital of the
Company.
"Stock Exchange" means The Stock Exchange of Hong Kong
Limited.
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"subsidiary" has the meaning given to it in the
Companies Ordinance.
"Tax" or "Taxation" means any income, gross receipts,
employment, payroll, windfall profits,
profits, withholding, social security
(or similar), unemployment, disability,
real property, personal property, sales
or value added tax.
"Tax Return" means any return, declaration, report,
claim for refund or information return
or statement relating to Taxes,
including any schedule or attachment
thereto, and including any amendment
thereof.
"Transaction Documents" means this Agreement, the Shareholders'
Agreement, the Co-operation Agreement
and the Amended and Restated
Registration Rights Agreement.
"U.S." or "United States" means the United States of America.
"US$" or "U.S. Dollars" means United States Dollars, being
the lawful currency of the
Unites States.
"Warranties" means the representations and warranties
in Clause 7.1 (Seller's and HWL's
Warranties) and set out in Schedule 1
(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;
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(vii) the table of contents and headings are inserted for convenience
only and do not affect the construction of this Agreement;
(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;
(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; and
(xii) the expressions "ordinary course of business" or "business in
the ordinary course" mean the ordinary and usual course of
business of the relevant Group Company, consistent in all
respects (including nature and scope) with the prior practice of
such Group Company.
1.3 The Schedules to this Agreement and the Disclosure Letter are
incorporated into and form an integral part of this Agreement.
1.4 The expression "so far as the Seller is aware" (or comparable
expressions) when used in this Agreement shall be deemed to mean the
actual knowledge of Canning Xxx Xxx-ning, Xxxxx Xxxx Xxx Mo Xxxx, Xxxxx
Xxxx Xxxx, Xxxxxxxxxx Xxx, Xxxxxx Xxx Pok Man, Chan Xxxx Xx, Xxxxx Xxx
Xxxx Man and Xxxxxxx Xxxxxxx Xxxxxxxxxx and such knowledge shall, in so
far as it requires a view or opinion to be taken in relation to law,
regulation or practice in any relevant jurisdiction, be based on such
individuals' actual understanding and interpretation of such law,
regulation or practice in relation to the relevant matter.
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 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.
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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
settled by (i) the delivery of the Promissory Note by the Purchaser to
the Seller in accordance with Clause 4.4 and (ii) the receipt of the
Cash Consideration as confirmed in accordance with Clause 5.2.
4. SIGNING AND CLOSING
4.1 Closing shall take place on the Closing Date at the offices of HWL or at
such other place as is agreed in writing by the Seller and Purchaser.
4.2 Prior to or simultaneous with the execution and delivery of this
Agreement by all parties, the Seller shall make available for inspection
by the Purchaser the following:
(i) (a) a certified extract of the written resolutions of the
directors of the Company
(A) approving and authorising the following:
(1) the transfer and registration of
transfer of the Sale Shares to the HSBC
Nominee upon receipt of the Promissory
Note and the Cash Consideration by the
Seller on the Closing Date;
(2) the entry of the name of and details of
the HSBC Nominee into the Cayman Islands
Register of Members and the Cayman
Islands Register of Transfers as the
registered owner and transferee of the
Sale Shares upon receipt of the
Promissory Note and the Cash
Consideration by the Seller on the
Closing Date;
(3) the issue of a share certificate in the
name of the HSBC Nominee in relation to
the Sale Shares upon receipt of the
Promissory Note and the Cash
Consideration by the Seller on the
Closing Date;
(4) the appointment of Xxxxxx Xxxxxxx and
Aldo Mareuse as non-executive directors
of the Company (and Xxxxxx Xxxxxxxxx and
Xxxx Xxxxxxx as their respective
alternate directors) as of and with
effect from the Closing Date upon
receipt of the Promissory Note and the
Cash Consideration by the Seller on the
Closing Date; and
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(5) the execution, delivery and performance
of each of the Transaction Documents to
which it is a party; and
(B) noting the intention within two weeks from the
Closing Date to establish a finance committee of
the directors of the Company for the purposes
set forth in the Shareholders' Agreement and to
appoint the persons referred to in the
Shareholder's Agreement to such finance
committee; and
(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
Nominee and the transfer of the same into the name of
the HSBC Nominee as of and with effect from receipt of
the Promissory Note and the Cash Consideration by the
Seller on the Closing Date), each of the other
Transaction Documents to which it is a party and the
Security Document;
(c) a certified extract of the written resolutions of the
directors of HWL approving and authorising the
execution, delivery and performance of this Agreement,
each of the other Transaction Documents to which it is a
party; and
(d) a certified copy of each power of attorney (if any)
under which any document to be delivered to the
Purchaser has been executed;
(ii) the original counterparts of each of the following documents, in
each case duly executed and delivered by the parties named
therein (excluding the Purchaser and the Purchaser Nominee):
(a) the Shareholders' Agreement;
(b) the Co-operation Agreement;
(c) the Amended and Restated Registration Rights Agreement;
(e) the Security Document; and
(iii) an original incumbency certificate from the registered agent of
the Seller in the British Virgin Islands dated prior to the date
of this Agreement.
4.3 Prior to or simultaneous with the execution and delivery of this
Agreement by all parties, the Purchaser shall make available for
inspection by the Seller the following:
(i) original consents to act from Xxxxxx Xxxxxxx, Xxxx Mareuse,
Xxxxxx Xxxxxxxxx and Xxxx Xxxxxxx in relation to their
respective appointments as directors and alternate directors of
the Company, and notices of appointment for each of the
alternate directors in each case with effect from the Closing
Date;
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(ii) the original counterparts of each of the following documents, in
each case duly executed and delivered by the Purchaser and/or
the Purchaser Nominee, as relevant:
(a) the Shareholders' Agreement;
(b) the Co-operation Agreement;
(c) the Amended and Restated Registration Rights Agreement;
(d) the OTH Guarantee; and
(e) the Security Document;
(iii) a certified copy of an English translation of the commercial
register of the Purchaser dated prior to the date of this
Agreement and certifying that the translation accurately
indicates the true state of the commercial register at the date
the translation was made;
(iv) a certified extract of the resolutions of the directors of the
Purchaser approving and authorising Xxxxxx Xxxxxxx to sign
documents of a nature substantially similar to the Transaction
Documents;
(v) a certified copy of the resolutions of the directors of the
Purchaser Nominee approving and authorising the execution,
delivery and performance of this Agreement, the Promissory Note,
the Security Document and each of the other Transaction
Documents to which it is a party; and
(vi) a certified copy of each power of attorney (if any) under which
any document to be delivered to the Seller has been executed.
4.4 On the date of this Agreement, following the Seller making available for
inspection by the Purchaser all of the documents and other items
required by Clause 4.2 in accordance with the terms of such Clause, the
Purchaser shall deliver to the Seller an original of the Promissory Note
and effect payment of the Cash Consideration to the Seller's Designated
Account.
5. ACTIONS AT CLOSING
5.1 The Purchaser and the Purchaser Nominee hereby jointly direct the Seller
not to transfer the Sale Shares to the Purchaser Nominee on the Closing
Date, but instead, in accordance with the Security Document, to transfer
the Sale Shares directly to the HSBC Nominee at Closing.
5.2 On the Closing Date, conditional upon receipt by the Seller from the
bank holding the Seller's Designated Account of a written confirmation
that the full amount of the Cash Consideration has been credited to the
Seller's Designated Account (whereupon the Seller shall promptly notify
the Purchaser):
(i) the Seller shall deliver to the Purchaser the documents and
agreements specified in Clause 4.2 (if copies of the same are
delivered, then with the originals to follow as soon as
practicable thereafter) and the Purchaser shall simultaneously
deliver to the Seller the documents and agreements specified in
Clause 4.3 (if copies of the same are delivered, then with the
originals to follow as soon as practicable thereafter); and
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(ii) acting in accordance with the direction in Clause 5.1, the
Seller shall:
(a) deliver to the share registrar of the Company (with a
copy to the Purchaser) a duly executed stock transfer
form in relation to the transfer of the Sale Shares to
the HSBC Nominee;
(b) procure the registration of the transfer of the Sale
Shares to the HSBC Nominee as of the Closing Date;
(c) deliver or procure that there be delivered to the
Purchaser or a Person designated by the Purchaser a
certified true copy of the Cayman Islands Register of
Members and Cayman Islands Register of Transfers,
revised to reflect the entry of the name and details of
the HSBC Nominee therein as the registered owner and
transferee of the Sale Shares as of the Closing Date;
(d) deliver or procure that there be delivered to the HSBC
Nominee an original share certificate issued by the
Company in the name of the HSBC Nominee representing the
Sale Shares (with a copy to the Purchaser); and
(e) procure the appointment of Xxxxxx Xxxxxxx and Xxxx
Mareuse as directors of the Company (and Xxxxxx
Xxxxxxxxx and Xxxx Xxxxxxx as their respective alternate
directors) with effect from the Closing Date, and
deliver or procure that there be delivered to the
Purchaser a faxed certified true copy of the Register of
Directors, revised to reflect the appointment of Xxxxxx
Xxxxxxx and Aldo Mareuse as directors and Xxxxxx
Xxxxxxxxx and Xxxx Xxxxxxx as alternate directors of the
Company with effect from the Closing Date.
5.3 If the provisions of Clause 5.2(ii) are not complied with on the Closing
Date, the Purchaser and the Purchaser Nominee shall not be obliged to
complete this Agreement and may treat this Agreement as terminated for
breach of condition and require immediate cancellation of the Promissory
Note and repayment of the Cash Consideration to the extent received in
the Seller's Designated Account by the Seller (without limiting the
Purchaser's and the Purchaser Nominee's rights and remedies under this
Agreement).
6. POST-CLOSING OBLIGATIONS
6.1 On or before 13 January 2006, the Purchaser shall deliver, or procure
the delivery of, originals of the following legal opinions to the Seller
addressed to the Seller and in each case in form and substance customary
for international financing transactions and reasonably satisfactory to
the Seller:
(i) opinion of DLA Matouk Bassiouny, the Egyptian counsel to the
Purchaser in relation to the OTH Guarantee; and
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(ii) opinion of Xxxxxx and Calder, the British Virgin Islands counsel
to the Purchaser Nominee in relation to the Promissory Note and
the Security Document.
6.2 If the provisions of Clause 6.1 are not complied with, the Purchaser and
the Purchaser Nominee shall, at the request of the Seller, use all
reasonable endeavours to co-operate with the Seller to put in place
funding and security arrangements that provide the Seller with the same
or substantially the same security for all monies due under the
Promissory Note as would have been provided had the provisions of Clause
6.1 been complied with or been capable of being complied with.
6.3 On or before 13 January 2006, HWL shall deliver, or procure the delivery
of, an original of a legal opinion to the Purchaser of Linklaters, Hong
Kong counsel to HWL in relation to its guarantee in Clause 9 of this
Agreement, addressed to the Purchaser and in form and substance
customary for international business transactions and reasonably
satisfactory to the Purchaser.
6.4 Within one week from the Closing Date, the Purchaser shall deliver to
the Seller on behalf of the Company duly executed Forms Bs (Declaration
and Undertaking with regard to Directors) in relation to the appointment
of Xxxxxx Xxxxxxx and Xxxx Mareuse as directors and Xxxxxx Xxxxxxxxx and
Xxxx Xxxxxxx as alternate directors of the Company.
6.5 Following Closing, at the Purchaser Nominee's or the Purchaser's cost,
the Seller will assist the Purchaser Nominee and the Purchaser as
reasonably requested by them and following reasonable notice in
connection with customary marketing efforts for the placement of any OTH
Financing that will be used to fund or repay the full amount outstanding
under the Promissory Note.
7. SELLER'S AND HWL'S WARRANTIES
7.1 Subject to the limitations in Schedule 2, the Seller hereby represents
and warrants to the Purchaser and the Purchaser Nominee that each of the
Warranties is true and accurate in all respects and not misleading as at
the date of this Agreement.
7.2 Subject to the limitations in Schedule 2, HWL hereby represents and
warrants to the Purchaser and the Purchaser Nominee that each of
Warranty 1.1(ii) and, insofar as they relate to HWL, 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.
7.3 The Seller and HWL acknowledge that the Purchaser and the Purchaser
Nominee are entering into this Agreement on the basis of and in reliance
upon representations in the terms of the Warranties.
7.4 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.
8. PURCHASER'S AND PURCHASER NOMINEE'S WARRANTIES
8.1 The Purchaser and the Purchaser Nominee hereby jointly and severally
represent and warrant to the Seller and HWL as of the date of this
Agreement that each of the warranties and representations in this Clause
8 is true and accurate in all respects and not misleading as at the date
of this Agreement:
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(i) The Purchaser is a corporation duly organised, validly existing
and in good standing under the laws of the Arab Republic of
Egypt.
(ii) The Purchaser Nominee is a corporation duly organised, validly
existing and in good standing under the laws of the British
Virgin Islands.
(iii) Neither the Purchaser nor the Purchaser Nominee is in
receivership or liquidation nor has any of them taken any step
to enter liquidation, and no petition has been presented for
winding up the Purchaser or the Purchaser Nominee. 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 or
the Purchaser Nominee.
(iv) Each of the Purchaser and the Purchaser Nominee 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, the OTH
Guarantee, the Promissory Note and the Security Document to
which it is a party and the other instruments and agreements to
be executed and delivered by the Purchaser or the Purchaser
Nominee as contemplated hereby and thereby.
(v) The execution, delivery and performance of the Transaction
Documents, the OTH Guarantee, the Promissory Note and the
Security Document to which either the Purchaser or the Purchaser
Nominee is a party, and all other instruments and agreements to
be executed and delivered by the Purchaser or the Purchaser
Nominee as contemplated hereby and thereby, and the consummation
of the transactions contemplated hereby and thereby, have been
duly authorised by the directors and, to the extent required,
shareholders of the Purchaser and the Purchaser Nominee , as
relevant, and no other corporate or shareholder action on the
part of the Purchaser or the Purchaser Nominee or their
respective shareholders is necessary to authorise the execution,
delivery and performance of the Transaction Documents, the OTH
Guarantee, the Promissory Note and the Security Document to
which the Purchaser or the Purchaser Nominee is a party, such
other instruments and agreements contemplated hereby and thereby
or the consummation of the transactions contemplated hereby and
thereby.
(vi) The Transaction Documents, the OTH Guarantee, the Promissory
Note and the Security Document to which either the Purchaser or
the Purchaser Nominee is a party and all other instruments and
agreements to be executed and delivered by the Purchaser or the
Purchaser Nominee as contemplated hereby and thereby, when
delivered in accordance with the terms hereof, assuming the due
execution and delivery of the Transaction Documents, the OTH
Guarantee, the Promissory Note and the Security Document and
each such other document by the other parties hereto and
thereto, shall have been duly executed and delivered by each of
the Purchaser and the Purchaser Nominee and shall be valid and
binding obligations of each of the Purchaser and the Purchaser
Nominee enforceable against them in accordance with their terms,
14
except to the extent that their enforceability may be subject to
applicable bankruptcy, insolvency, reorganisation, moratorium or
similar laws affecting the enforcement of creditors' rights
generally or to general equitable principles.
(vii) The entry into and performance of the Transaction Documents, the
OTH Guarantee, the Promissory Note and the Security Document to
which the Purchaser or the Purchaser Nominee is a party will not
constitute a breach by the Purchaser or the Purchaser Nominee of
or default under: (A) any provision of the organisational
documents of the Purchaser or the Purchaser Nominee; (B) any
legally binding obligation or any material agreement or
undertaking or the terms of any guarantee by which the Purchaser
or the Purchaser Nominee is bound; or (C) any Law applicable to
the Purchaser or the Purchaser Nominee.
(viii) No action or proceeding has been instituted or, so far as the
Purchaser is aware, threatened before a court or other
Governmental Authority to restrain or prohibit or materially
delay any of the transactions contemplated by any of the
Transaction Documents, the OTH Guarantee, the Promissory Note
and the Security Document.
(ix) Neither the Purchaser nor the Purchaser Nominee is taking steps
with the current intent to prepare a claim against the Seller or
HWL, or has any current intent to make a claim against the
Seller or HWL for breach of any Warranty based on information
supplied to them or their agents.
8.2 Each of the Purchaser's and Purchaser Nominee's Warranties shall be
separate and independent and (unless expressly provided otherwise) shall
not be limited by reference to any other Purchaser's and Purchaser
Nominee's Warranty or by anything in this Agreement.
8.3 The Purchaser and the Purchaser Nominee acknowledge that the Seller and
HWL are entering into this Agreement on the basis of and in reliance
upon representations in the terms of the Purchaser's and Purchaser
Nominee's Warranties.
9. HWL'S GUARANTEE
9.1 In consideration of the Purchaser and the Purchaser Nominee entering
into this Agreement, HWL unconditionally and irrevocably guarantees to
the Purchaser and the Purchaser Nominee the due and punctual performance
and payment by the Seller of all its financial and other obligations
under or pursuant to this Agreement and the Security Document (the
"Seller's Guaranteed Obligations").
9.2 If and whenever the Seller defaults for any reason whatsoever in the
performance of any of the Seller's Guaranteed Obligations, HWL shall
immediately upon demand 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.
15
9.3 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 or the Purchaser Nominee may now or hereafter have
or hold for the performance and observance of the Seller's Guaranteed
Obligations.
9.4 As a separate and independent obligation, HWL agrees (as primary obligor
and not only as surety) to indemnify, defend and hold harmless the
Purchaser and the Purchaser Nominee from time to time (without set-off
or counterclaim) from and against any and all Losses suffered by the
Purchaser or the Purchaser Nominee 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 HWL pursuant to this Clause 9.4 or any other provision of
this Clause 9 shall be equal to, and shall in no circumstances exceed,
the amount which the Purchaser or the Purchaser Nominee would otherwise
have been entitled to recover from the Seller under the terms of this
Agreement (including the limitations in Schedule 2).
9.5 The liability of HWL under this Clause 9:
(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.
9.6 HWL waives any right it may have of first requiring the Purchaser or the
Purchaser Nominee to proceed against the Seller before claiming from HWL
under this Clause 9.
10. DISCLOSURE DOCUMENTS
10.1 The Seller undertakes to maintain and preserve the Disclosure Documents
in the respective forms which are in the Data Room until the later of
(i) one year from the Closing Date; or (ii) the date on which any claim
by the Purchaser or the Purchaser Nominee under this Agreement is fully
and finally settled. For the avoidance of doubt, the Purchaser and its
representatives shall continue to have access to the Data Room to review
the documents added since December 13, 2005 and which were notified to
the Purchaser and included in the Disclosure Letter.
10.2 The Seller shall, at its own cost, provide or procure that there be
provided to the Purchaser (i) a CD ROM with a copy of all publicly
available information referenced in items 3, 4, 5, 6 and 7 of the
Disclosure Letter and (ii) a copy of any other Disclosure Document as
soon as reasonably practicable following a request from the Purchaser in
writing, specifying the Disclosure Document(s) required and certifying
16
that the purpose for the request is either to verify information sought
as part of the Purchaser's due diligence or to assist the Purchaser with
the OTH Financing that will be used to fund or repay the full amount
outstanding under the Promissory Note, provided that in any event the
Seller shall only be obliged to provide, pursuant to this Clause 10.2,
one copy of any particular Disclosure Document.
11. CONFIDENTIALITY AND ANNOUNCEMENTS
This Agreement shall be subject to the terms and conditions of the
Confidentiality Agreement until Closing, upon which clause 19
(Confidentiality and Announcements) of the Shareholders' Agreement shall
apply hereto; provided that none of the terms and conditions of the
Confidentiality Agreement 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 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.
12. ASSIGNMENT
12.1 This Agreement may not be transferred, assigned, pledged or hypothecated
by any party hereto without the express written consent of the other
parties hereto; provided, that the Purchaser and the Purchaser Nominee
may transfer, assign, pledge or hypothecate at any time all (but not
part only) of its rights or interests hereunder (i) to any direct or
indirect wholly owned subsidiary of the Purchaser and (ii) to the
Security Agent for the purpose of securing any OTH Financing provided
that the term of any such assignment contains a condition to the effect
that each of the Security Agent and the Financing Party shall not be
entitled to exercise the rights assigned hereunder unless and until an
event of default has occurred under the relevant security documents or
the relevant security has been enforced; provided, further, that if the
Purchaser or the Purchaser Nominee makes any assignment referred to
above, for the avoidance of doubt, the Purchaser and the Purchaser
Nominee shall remain liable under this Agreement for their respective
obligations hereunder. This Agreement shall be binding upon and shall
inure to the benefit of the parties hereto and their respective heirs,
executors, administrators, successors and permitted assigns.
12.2 The Purchaser and the Purchaser Nominee covenant to and undertake with
each of the Seller and HWL that any direct or indirect wholly owned
subsidiary of the Purchaser to which the Purchaser or the Purchaser
Nominee assigns rights or interests under Clause 12.1(i) shall at all
times remain a direct or indirect wholly owned subsidiary of the
Purchaser.
12.3 The Purchaser and the Purchaser Nominee covenant to and undertake with
each of the Seller and HWL that:
(i) upon any transfer of legal title to some or all of the Sale
Shares to a Security Agent the Purchaser Nominee or its
Affiliates will, unless and until an event of default has
occurred under the relevant security documentation, (a) retain
authority to vote the Sale Shares so transferred (or having the
power to
17
procure that such Sale Shares are voted in accordance with their
instructions); and (b) ensure that no exercise of the power of
sale or disposal in respect of the legal interest in the Sale
Shares held by the Security Agent shall arise (in the absence of
such event of default occurring); and
(ii) the initial transfer of the Sale Shares to the Security Agent
following payment of the full amount under the Promissory Note
will be made to provide security and not to satisfy any right of
any Person(s) resulting from the enforcement of any existing
security.
13. FURTHER ASSURANCE
13.1 The Seller and HWL 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 and the Purchaser Nominee to
give full effect to this Agreement and its rights, powers and remedies
under this Agreement.
13.2 The Purchaser and the Purchaser Nominee 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 HWL to give
full effect to this Agreement and its rights, powers and remedies under
this Agreement.
14. ENTIRE AGREEMENT
This Agreement, together with each of the other Transaction Documents,
the OTH Guarantee, the Promissory Note and the Security Document and the
Disclosure Letter, 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.
15. SEVERANCE AND VALIDITY
15.1 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.
15.2 To the extent it is not possible to delete or modify the provision, in
whole or in part, under Clause 15.1, 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 15.1, not be affected.
16. VARIATIONS
No variation of this Agreement shall be effective unless in writing and
signed by the parties.
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17. REMEDIES AND WAIVERS
17.1 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.
17.2 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.
17.3 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.
17.4 The rights and remedies provided in this Agreement are cumulative and do
not exclude any rights or remedies provided by law.
18. EFFECT OF CLOSING
The provisions of this Agreement which remain to be performed following
Closing shall continue in full force and effect notwithstanding Closing.
19. SURVIVAL AND RIGHTS OF RESCISSION
19.1 Subject to Clause 5.3, no party shall have any right to rescind this
Agreement under any circumstance.
19.2 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, in the case of the Seller and HWL to the
extent set forth in Schedule 2.
20. 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.
21. PAYMENTS
21.1 Any amount payable by the Seller or HWL to the Purchaser or the
Purchaser Nominee or by the Purchaser or the Purchaser Nominee to the
Seller or HWL shall be made in full without set-off or counter-claim and
free from any deduction or withholding whatsoever, except as required by
law.
21.2 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 Xxx.
00
00. COSTS AND EXPENSES
22.1 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.
22.2 The Purchaser shall pay all costs and expenses in connection with the
negotiation, preparation and performance of the OTH Guarantee, the
Security Document and the Promissory Note (including the costs and
expenses of the HSBC Nominee) against receipt of invoices and subject to
a maximum of US$100,000.
22.3 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.
23. NOTICES
23.1 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 23.3.
23.2 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 23 are
to local time in the country of the addressee.
23.3 The addresses and fax numbers for service of Notice are:
Seller:
Name: Xxxxxxxxx Telecommunications Investment
Holdings Limited
Address: x/x 00xx Xxxxx, Xxxxxxxxx Xxxxx
00 Xxxxxxxx Xxxx
Xxxx Xxxx
20
For the attention of: The Company Secretary
Fax number: (000) 0000 0000
HWL:
Name: Xxxxxxxxx Whampoa Limited
Address: 00xx Xxxxx, Xxxxxxxxx Xxxxx
00 Xxxxxxxx Xxxx
Xxxx Xxxx
For the attention of: The Company Secretary
Fax number: (000) 0000 0000
Purchaser Nominee:
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: Xx. Xxxxxx Xxxxxxx, Chairman & CEO
Fax number: 000 000 0000
With a copy to: Orascom Telecom Holding S.A.E.
Address: 2005A Nile City Towers - South Tower
Cornish El Xxxx
Xxxxxx Xxxxxxx - 00000
Xxxxx
Xxxxx
For the attention of: Legal Department
Fax number: 000 000 0000
Purchaser:
Name: Orascom Telecom Holding S.A.E.
Address: 2005A Nile City Towers - South Tower
Cornish El Xxxx
Xxxxxx Xxxxxxx - 00000
Xxxxx
Xxxxx
For the attention of: Xx. Xxxxxx Xxxxxxx, Chairman & CEO
Fax number: 000 000 0000
With a copy to: Orascom Telecom Holding S.A.E.
Address: 2005A Nile City Towers - South Tower
Cornish El Xxxx
Xxxxxx Xxxxxxx - 00000
Xxxxx
Xxxxx
For the attention of: Legal Department
Fax number: 000 000 0000
21
23.4 A party shall notify the other parties of any change to its address in
accordance with the provisions of this Clause 23 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.
24. 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.
25. GOVERNING LAW AND JURISDICTION
25.1 This Agreement shall be governed by and construed in accordance with
English law.
25.2 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.
26. AGENT FOR SERVICE OF PROCESS
26.1 Each of the Seller and HWL irrevocably appoints Xxxxxxxxx Whampoa Agents
(UK) Limited of Xxxxxxxxx House, 0 Xxxxxx Xxxx, Xxxxxxxxx, Xxxxxx XX00
0XX, the United Kingdom and each of the Purchaser and the Purchaser
Nominee irrevocably appoints Law Debenture 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.
26.2 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.
22
SCHEDULE 1
WARRANTIES
The Seller hereby represents and warrants to the Purchaser and the Purchaser
Nominee as of the date hereof (save in respect of 1.1(ii) and the Warranties
given by HWL in 1.2(i), (ii) and (iii) and 1.3(ii)) and HWL represents and
warrants to the Purchaser and the Purchaser Nominee as at the date hereof as set
out in 1.1(ii) and, insofar as they relate to HWL, 1.2(i), (ii) and (iii) and
1.3(ii) only, as follows:
1.1 Organisation of the Seller and HWL.
(i) The Seller is a corporation duly organised, validly existing and in good
standing under the laws of the British Virgin Islands.
(ii) HWL is a corporation duly organised, validly existing and in good
standing under the laws of Hong Kong.
(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 HWL 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 and the
Security Document to which it is a party and the other instruments and
agreements to be executed and delivered by the Seller or HWL 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 and
the Security Document to which either the Seller or HWL is a party, and
all other instruments and agreements to be executed and delivered by the
Seller or HWL as contemplated hereby and thereby, and the consummation
of the transactions contemplated hereby and thereby, have been duly
authorised by the directors and, to the extent required, shareholders of
the Seller and HWL, as relevant, and no other corporate or shareholder
action on the part of the Seller or HWL is necessary to authorise the
execution, delivery and performance of the Transaction Documents and the
Security Document to which the Seller or HWL 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 and the Security Document to which either the
Seller or HWL is a party and all other instruments and agreements to be
executed and delivered by the Seller or HWL as contemplated hereby and
thereby, when delivered in accordance with the terms hereof, assuming
the due execution and delivery of the Transaction Documents and the
Security Document and each such other document by the other parties
hereto and thereto, shall have been duly executed and delivered by each
of the
23
Seller and HWL and shall be valid and binding obligations of each of the
Seller and HWL enforceable against them in accordance with their terms,
except to the extent that their enforceability may be subject to
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 Company and each of the Principal Subsidiary Companies have obtained
all consents, approvals, exemptions, waivers, authorisations and
regulatory or court orders and made all notifications necessary to avoid
(A) any breach of any contract, agreement or instrument to which any of
them is a party or (B) the trigger of any change of control or similar
provision granting rights to other parties, in each case as a result of
the transactions contemplated by the Transaction Documents and in each
case which would have a Material Adverse Effect. The Seller and, so far
as the Seller is aware, the Company have obtained all consents and made
all notifications necessary for the entry into and performance by each
of them of their obligations under the Transaction Documents and the
Security Document.
(ii) The entry into and performance of the Transaction Documents and the
Security Document to which the Seller or HWL is a party will not
constitute a breach by the Seller or HWL of or default under: (A) any
provision of the organisational documents of the Seller or HWL; (B) any
legally binding obligation or any material agreement or undertaking or
the terms of any guarantee by which the Seller or HWL is bound; or (C)
any Law applicable to the Seller and HWL.
(iii) So far as the Seller is aware, the entry into and performance of the
Transaction Documents to which the Company is a party will not
constitute a breach by the Company or any Principal Subsidiary Company
of or a default under: (i) any provision of the organisational documents
of the Company; (ii) any legally binding obligation, or any material
agreement or undertaking or the terms of any guarantee by which the
Company or any Principal Subsidiary Company is bound; or (iii) any Law
applicable to any of them.
(iv) There are no agreements to which the Company or any Principal Subsidiary
Company is a party which can be terminated by the other party or parties
thereto or, other than with respect to the Transaction Documents, under
which the rights of the Company or any Principal Subsidiary are liable
to be materially adversely affected, in each case as a result of the
entry into and performance of the Transaction Documents.
(v) 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 The Company and the Principal Subsidiary Companies.
(i) So far as the Seller is aware, the Company is a corporation duly
organised, validly existing and in good standing under the laws of the
Cayman Islands. So far as the Seller is aware, each Principal Subsidiary
Company is duly organised, validly existing and in good standing under
the laws of the jurisdiction of its organisation and has all requisite
corporate power and authority to own its property and to carry on its
business as now being conducted.
24
(ii) Section 1.4(ii) of the Disclosure Letter is a complete and correct list
of the Principal Subsidiary Companies, Xxxxxxxxx Telecommunications
Lanka (Private) Limited, Kasapa Telecom Limited and their respective
directors as at the date of this Agreement.
(iii) So far as the Seller is aware, each Principal Subsidiary Company has all
requisite power, authority and legal right to own its property and to
carry on its business as now being conducted. So far as the Seller is
aware, each Principal Subsidiary Company is duly qualified to do
business and is in good standing in each jurisdiction in which the
character or location of the properties owned, leased or operated by the
Principal Subsidiary Company or the nature of the business conducted by
the Principal Subsidiary Company makes such qualification necessary.
(iv) No Principal Subsidiary Company is in receivership or liquidation or has
taken any step to enter liquidation, and no Principal Subsidiary Company
has taken any step to petition for the winding up of any Principal
Subsidiary Company. So far as the Seller is aware, there are no grounds
on which a petition or application could be based for the winding up or
appointment of a receiver of any Principal Subsidiary Company and no
such petition has been presented to any Principal Subsidiary Company.
1.5 Sale Shares; Share Capital of the Company and the Principal Subsidiary
Companies.
(i) The Seller is the beneficial owner of and has good and valid title to
the Sale Shares free and clear of any Encumbrance. All of the Sale
Shares are fully paid.
(ii) The Company has an authorised share capital of HK$2,500,000,000 and
US$10,000 divided into 10,000,000,000 shares of HK$0.25 each ("Ordinary
Shares") and 1,000,000 non-voting redeemable preference shares of
US$0.01 each ("Redeemable Shares"), of which 4,752,546,209 Ordinary
Shares and none of the Redeemable Shares are issued and outstanding. The
Sale Shares constitute approximately 19.31% of all the issued Ordinary
Shares in the capital of the Company as at the date of this Agreement
and as at Closing.
(iii) The Company will, immediately following the Closing, cease to be a
subsidiary (as such term is defined in the Companies Ordinance) of HWL
and the Seller.
(iv) Other than Partner Communications Company Ltd, each Principal Subsidiary
Company, Xxxxxxxxx Telecommunications Lanka (Private) Limited and Kasapa
Telecom Limited has the capitalisation set forth in section 1.4(ii) of
the Disclosure Letter. All of the outstanding shares of, or other equity
securities or voting interests in, as the case may be, each Principal
Subsidiary Company, Xxxxxxxxx Telecommunications Lanka (Private) Limited
and Kasapa Telecom Limited have been duly authorised and validly issued,
are fully paid and are, except as otherwise disclosed in the Accounts,
beneficially owned by the Group.
(v) (A) There are no outstanding or authorised options, warrants,
rights, subscriptions, claims of any character, agreements,
obligations, convertible or exchangeable securities, or other
commitments contingent or otherwise relating to the capital
25
stock of, or other equity or voting interest in, the Company or
any Principal Subsidiary Company (including, without limitation,
an option or right of pre-emption, first refusal or conversion),
pursuant to which the Company, the Seller or any of the Company
Subsidiaries is or may become obligated to issue, deliver or
sell or cause to be issued, delivered or sold, any shares or
other equity or voting interest in, the Company or such
Principal Subsidiary Company or any securities convertible into,
exchangeable for, or evidencing the right to subscribe for or
acquire, any shares or other equity or voting interest in the
Company or such Principal Subsidiary Company.
(B) There are no outstanding or authorised stock appreciation,
phantom stock, profit participation or similar rights with
respect to the shares of, or other equity or voting interest in,
the Company or any Principal Subsidiary Company.
(C) Neither the Company nor any of the Principal Subsidiary
Companies has any authorised or outstanding bonds, debentures,
notes or other Indebtedness, the holders of which have the right
to vote (or convertible into, exchangeable for, or evidencing
the right to subscribe for or acquire securities having the
right to vote) with the shareholders or stockholders the Company
or the Principal Subsidiary Companies on any matter.
(D) There are no contracts to which the Company, the Seller or any
of the Principal Subsidiary Companies is a party or by which
they are bound to (1) repurchase, redeem or otherwise acquire
any shares in the capital of, or other equity or voting interest
in, the Company or any Principal Subsidiary Company or (2) vote
or dispose of any shares of or other equity or voting interest
in, the Company or any Principal Subsidiary Company.
(E) There are no irrevocable proxies and no voting agreements with
respect to any shares of, or other equity or voting interest in,
the Company or any Principal Subsidiary Company.
(vi) So far as the Seller is aware, the terms of the Employee Share Option
Plans comply in all respects with the Listing Rules and all other
applicable Laws.
(vii) The maximum number of Shares which may be allotted and issued by the
Company upon the exercise of all outstanding options granted and yet to
be exercised under all Employee Share Option Plans do not in aggregate
exceed 450,000,000 Shares, representing approximately 9.47 per cent. of
the Shares in issue at the date of this Agreement.
1.6 Financial Matters.
(i) Section 1.6(i) of the Disclosure Letter contains a true and accurate
list of all Indebtedness of the Group owing to or available from banks
and financial institutions and intra-group Indebtedness of the Group as
at 30 November 2005 but, in the case of any revolving or available but
not wholly utilised Indebtedness, expressed by reference to the
aggregate available under each such item of Indebtedness without
indicating the amounts drawn or undrawn under such Indebtedness.
26
(ii) Section 1.6(ii) of the Disclosure Letter contains a true and accurate
list of all Contingent Liabilities as at 30 September 2005.
1.7 Taxation.
No Tax audit or other administrative proceeding is pending or, so far as
the Seller is aware, threatened in writing, and no judicial Tax
proceeding is pending or, so far as the Seller is aware, threatened in
writing, in each case, that involves any Tax or Tax Return of any Group
Company.
1.8 Material Contracts.
(i) Section 1.8(i) of the Disclosure Letter sets forth an accurate and
complete list of the following contracts to which the Company or any of
the Principal Subsidiary Companies is a party or by which any of them is
bound:
(a) all contracts which contain restrictions with respect to payment
of dividends or any other distribution in respect of the shares
of or other voting or equity interests in the Company or any of
the Principal Subsidiary Companies;
(b) all contracts relating to the issuance or repurchase of the
shares of or other voting or equity interests in, or in respect
of registration rights, pre-emptive rights, rights of first
refusal, tag along rights, transfer rights or restrictions,
voting rights or rights of security holders therein;
(c) all contracts involving, in each case, Indebtedness in excess of
US$5 million of the Company or any of the Principal Subsidiary
Companies;
(d) all contracts of which one of the primary purposes is to limit
the ability of the Company or any of the Principal Subsidiary
Companies to engage in any line of business or to compete with
any Person which, in each case, will inhibit the development of
the core business of the Company or any Principal Subsidiary
Company;
(e) all contracts (including letters of intent) involving the future
disposition or acquisition of assets or properties (in each case
with a value in excess of US$10 million), or any merger,
consolidation or similar business combination transaction;
(f) all contracts involving (i) any core business co-operation,
joint venture, partnership, strategic alliance or shareholders'
agreement (including the contracts relating to the four joint
ventures with Kotak Mahindra Capital Co. in India), or (ii)
co-marketing, co-promotion, co-packaging, joint development or
similar arrangement which, in the case of items in clause (ii),
is material to the business of the Group taken as a whole.
(g) all procurement agreements and turnkey equipment supply
agreements with a value, in each case, exceeding US$10 million.
(ii) Each contract required to be set forth in section 1.8(i) of the
Disclosure Letter) is in full force and effect, and there exists no (i)
default or event of default by the Company or any of the Principal
Subsidiary Companies or, so far as the Seller is aware, by any
27
other party to any such contract with respect to any material term or
provision of any such contract or (ii) so far as the Seller is aware,
event, occurrence, condition or act which would become a default or
event of default by the Company or any of the Principal Subsidiary
Companies or any other party thereto, with respect to any material term
or provision of any such contract. The copies of the contracts set forth
in section 1.8(i) of the Disclosure Letter have been made available to
the Purchaser by the Company in the Data Room and are true and complete
copies, including all amendments, of each such contract.
1.9 Compliance with Laws and Regulations.
(i) The Company and each of the Principal Subsidiary Companies has complied
and is in compliance with all applicable Laws except where the failure
to so comply, individually and in the aggregate, would not have a
Material Adverse Effect.
(ii) So far as the Seller is aware, the Company has complied in all material
respects with (A) all rules, regulations and requirements of the Stock
Exchange (including all filing, notification and disclosure requirements
under the Listing Rules, and the Code on Corporate Governance Practices
contained in Appendix 14 of the Listing Rules), and (B) all other
applicable rules, regulations and other requirements material to the
transactions contemplated by the Transaction Documents as are required
to be complied with at the date hereof. So far as the Seller is aware,
neither the Company nor any of the Principal Subsidiary Companies has
received any notice that any violation of the foregoing is being or may
be alleged.
1.10 Announcements, etc. made in pursuance of the Listing Rules.
So far as the Seller is aware, all statements of fact contained in all
announcements of the Company and all circulars and other documents and
reports (including the Hong Kong Prospectus, the Annual Report and the
Interim Report) issued to shareholders of the Company made by or on
behalf of the Company or its directors pursuant to the Listing Rules up
to and including the date of this Agreement (the "Stock Exchange
Disclosures") were, when made or issued, true and accurate in all
material respects as at the date of such Stock Exchange Disclosures and
not misleading in any material respect.
1.11 SEC Filings and Reports.
The Company's Annual Report on Form 20-F most recently filed with the
SEC and all subsequent reports or documents required to be filed or
furnished by it under the Exchange Act (collectively, the "Exchange Act
Reports") which have been filed by the Company with, or furnished by the
Company to, the SEC or sent to shareholders pursuant to the Exchange
Act, do not, so far as the Seller is aware, include any untrue statement
of a material fact or omit to state any material fact necessary to make
the statements therein, in light of the circumstances under which they
were made, not misleading. So far as the Seller is aware, such Exchange
Act Reports when they were filed with, or furnished to, the SEC
conformed in all material respects to the requirements of the Exchange
Act and the rules and regulations of the SEC thereunder.
28
1.12 Permits.
(i) Section 1.12(i) of the Disclosure Letter contains a true and complete
list of all telecommunications licenses (including references to the
locations in schedule 1 to the Disclosure Letter of correspondence
affecting such licences other than correspondence which singularly or in
aggregate would not create a Material Adverse Effect) held by any
Principal Subsidiary Company and relevant Group Company. Copies of these
licenses together with such material correspondence have been made
available to the Purchaser by the Company in the Data Room and, are true
and complete copies, including all amendments, of each such license.
(ii) The Company and each of the Principal Subsidiary Companies and the
relevant Group Companies have obtained and possess all Permits
(including, without limitation, telecommunications licenses) of, and
have made all registrations, notifications and filings with, all
Governmental Authorities having jurisdiction over them which are
reasonably necessary to enable the Company and the Principal Subsidiary
Companies to carry on their core business activities. No event has
occurred or condition or state of facts or affairs exist that would
permit revocation or termination of, any such Permit. Each such Permit
is valid and subsisting, is in full force and effect, and is enforceable
by the relevant Group Company holding such Permit. (i) No notice of any
revocation, cancellation, suspension or modification of any such Permit
has been received by the Company or any of the Principal Subsidiary
Companies, and (ii) none of such Permits is threatened to be, and no
event has occurred or condition or state of facts or affairs exist that
constitutes or, after notice or lapse of time or both, would result in,
any such Permit being, breached, suspended or modified, except where the
breach, suspension or modification, individually and in the aggregate,
would not have a Material Adverse Effect. None of the completion of the
sale of the Sale Shares, the consummation of the transactions
contemplated by the Transaction Documents (excluding the exercise of any
rights of first refusal or the tag-along rights pursuant to the
Shareholders' Agreement), the performance by the Company of the
Co-operation Agreement, or the exercise by the Purchaser of its right to
acquire additional Shares under the option contained in the
Shareholders' Agreement will result in any breach, default or forfeiture
of rights under each such Permit or the business co-operation agreement
entered into between Hanoi Telecommunications Joint Stock and Xxxxxxxxx
Telecommunications (Vietnam) S.a.r.l..
1.13 Intellectual Property.
No notice of a material default of any material license or other
agreement by which the Company or any Principal Subsidiary Company has
obtained any patent, trademark, service xxxx, trade name, copyright,
know-how or other processes or intellectual property including the
brands of "Hutch", "3" and "Orange" ("Intellectual Property Right") has
been sent or received by the Company or any Principal Subsidiary Company
which default remains uncured. The execution, delivery or performance of
the obligations by the Seller or the Company under any Transaction
Document and under the other instruments and agreements to be executed
and delivered as contemplated hereby or thereby will not result in a
material default of the brands of "Hutch", "3" or "Orange" or of any
material license or other agreement by which the Company or any
Principal Subsidiary Company has obtained any Intellectual Property
Right from HWL or any of its subsidiaries
29
(excluding the Group). Each such license granted by or agreement with
HWL or any of its subsidiaries (excluding the Group) is a legal, valid
and binding obligation of the Company or any Principal Subsidiary
Company, as relevant, and so far as the Seller is aware, the relevant
other parties thereto, enforceable in accordance with the terms thereof
and the transactions contemplated by the Transaction Documents will not
breach the terms thereof or trigger additional rights with respect to
any Person.
1.14 Litigation, Arbitration and Governmental Proceedings.
(i) There is no action, suit, proceeding at law or in equity, arbitration or
administrative or other proceeding by (or, so far as the Seller is
aware, any investigation by) any Governmental Authority or any other
Person, or, so far as the Seller is aware, threatened, against or
affecting the Company or any Principal Subsidiary Company, or any of its
properties, assets or rights, other than any such action, suit,
proceeding, arbitration or administrative or other proceeding which,
individually or in the aggregate, would not have a Material Adverse
Effect. The Seller does not know of any valid basis for any such action,
proceeding or investigation. None of the Company or any Principal
Subsidiary Company is subject to any court or regulatory order, other
than any such court or regulatory order which, individually or in the
aggregate, would not have a Material Adverse Effect.
(ii) No action or proceeding has been instituted or, so far as the Seller is
aware, threatened before a court or other Governmental Authority to
restrain or prohibit or materially delay any of the transactions
contemplated by any of the Transaction Documents.
(iii) There is no unsatisfied judgment, court order or tribunal or arbitral
award outstanding against the Company or any Principal Subsidiary
Company and no distress, execution or process has been levied on any
part of its business or assets other than any such unsatisfied judgment,
court order or tribunal or arbitral award outstanding which, in each
case, would not have a Material Adverse Effect, individually or in the
aggregate.
1.15 No Changes Since the Interim Accounting Date.
(i) Since the Interim Accounting Date, there have been no matters or events
which would have a Material Adverse Effect (and for the purpose of this
paragraph 1.15 (i), "Material Adverse Effect" has the meaning as defined
in part (i) of "Material Adverse Effect" under Clause 1.1
(Interpretation) subject to the proviso therein, but excluding part
(ii)).
(ii) Since the Interim Accounting Date, so far as the Seller is aware, there
have been no matters or events which would have a Material Adverse
Effect.
1.16 Investment Company Act.
Neither the Seller nor, so far as the Seller is aware (having made due
enquiries with U.S. legal counsel), the Company, is an open-end
investment company, unit investment trust or face-amount certificate
company that is or is required to be registered under Section 8 of the
Investment Company Act; and neither the Seller nor, so far as the Seller
is aware (having made due enquiries with U.S. legal counsel) the
Company, is on the date hereof and, after conclusion of the transactions
contemplated herein and by the Transaction Documents on the Closing Date
will be, an "investment company" as defined in the Investment Company
Act.
30
1.17 Acquisition of the entire issued share capital of the Company
So far as the Seller is aware, there are (i) no statutory or regulatory
issues in any jurisdiction; or (ii) no impediments in any contracts to
which the Seller, the Company or any Principal Subsidiary Company is a
party, which, in each case, would arise or be triggered as a direct
result of the Purchaser (in accordance with applicable Law and
regulations) acquiring the entire outstanding issued share capital of
the Company and which would have a Material Adverse Effect (and for the
purpose of this paragraph 1.17, "Material Adverse Effect" has the
meaning as defined in part (i) of "Material Adverse Effect" under Clause
1.1 (Interpretation) subject to the proviso therein, but excluding part
(ii)).
31
SCHEDULE 2
LIMITATIONS ON LIABILITY OF THE SELLER
1. SELLER'S DISCLOSURES
The Seller's obligations and liabilities under this Agreement are
subject to the matters which are fairly disclosed in or pursuant to this
Agreement or the Disclosure Letter.
2. LIMITATION OF SELLER'S LIABILITY
2.1 TIME LIMITATION FOR CLAIMS
The Seller shall not be liable under this Agreement in respect of any
claim unless a notice of the claim is given by the Purchaser or the
Purchaser Nominee to the Seller within 12 months following Closing
except that there shall be no time limitation for giving notice of any
claim under paragraph 1.5(i) of Schedule 1. Any claim notified by the
Purchaser or the Purchaser Nominee to the Seller pursuant to this
paragraph shall specify the matters set out in paragraph 3.1.
2.2 MINIMUM CLAIMS
(i) The Seller shall not be liable under this Agreement in respect
of any individual claim (or a series of claims arising from
substantially the same facts or circumstances) where the
liability agreed or determined (disregarding the provisions of
this paragraph 2.2) in respect of any such claim or series of
claims does not exceed US$1 million.
(ii) Where the liability agreed or determined in respect of any such
claim or series of claims exceeds US$1 million, the liability of
the Seller shall be the whole amount agreed or determined and
not just the excess.
2.3 AGGREGATE MINIMUM CLAIMS
(i) The Seller shall not be liable under this Agreement in respect
of any claim unless the aggregate amount of all claims for which
the Seller would otherwise be liable under this Agreement
(disregarding the provisions of this paragraph 2.3) exceeds US$5
million.
(ii) Where the liability agreed or determined in respect of all
claims referred to in paragraph 2.3(i) exceeds US$5 million, the
liability of the Seller shall be the whole amount agreed or
determined and not just the excess.
2.4 MAXIMUM LIABILITY
The aggregate liability of the Seller in respect of this Agreement shall
not exceed 100% of the Consideration.
32
2.5 PROVISIONS
The Seller shall not be liable under this Agreement in respect of any
claim if and to the extent that proper allowance, provisions or reserve
is made in the Accounts or the Interim Accounts for the matter giving
rise to the claim.
2.6 MATTERS ARISING SUBSEQUENT TO THIS AGREEMENT
The Seller shall not be liable under this Agreement in respect of any
matter to the extent that the same would not have occurred but for:
(i) Agreed matters
any matter or thing done or omitted to be done pursuant to and in
compliance with this Agreement or otherwise at the request in writing or
with the approval in writing of the Purchaser or the Purchaser Nominee;
(ii) Changes in legislation
(a) the passing of, or any change in, any law, rule or
regulation of any government, governmental department,
agency or regulatory body after the date of this
Agreement, including (without prejudice to the
generality of the foregoing) any increase in the rates
of Taxation or any imposition of Taxation or any
withdrawal of relief from Taxation not actually in
effect at the date of this Agreement but with
retrospective effect; or
(b) any change after the date of this Agreement of any
generally accepted interpretation or application of any
legislation;
(iii) Accounting and Taxation Policies
any change in accounting or Taxation policy, bases or practice of the
Purchaser or Purchaser Nominee or any of the Group Companies introduced
or having effect after Closing.
2.7 RECOVERY FROM THIRD PARTIES FOLLOWING RECOVERY FROM THE SELLER
If the Seller has paid an amount in discharge of any claim under this
Agreement which resulted from a loss in any Group Company and the
relevant Group Company is entitled to recover (whether by payment,
discount, credit, relief, insurance or otherwise) from a third party a
sum which indemnifies or compensates the relevant Group Company (in
whole or in part) in respect of the loss or liability which is the
subject matter of the claim, the Purchaser and/or the Purchaser Nominee
shall, pay to the Seller as soon as practicable after receipt by the
relevant Group Company an amount equal to such proportion of the amount
of the payment it/they received from the Seller in respect of the
relevant claim as is equal to the proportion of the relevant Group
Company's Loss recovered by the relevant Group Company less any costs
and expenses incurred in making such claim.
33
2.8 MITIGATION OF LOSSES
The Purchaser shall, or shall procure the Purchaser Nominee to, as
relevant, mitigate any Losses as obligated by law in respect of any
claim under this Agreement; provided that this duty to mitigate shall
not apply to Losses arising from breach of the Warranties in paragraphs
1.5(i) and 1.12(ii) of Schedule 1 or for claims based on fraud or
dishonesty or to any claim under Clause 9 (HWL's Guarantee)provided the
Purchaser has complied with this paragraph 2.8 in respect of the
underlying Loss which gave rise to the claim under Clause 9 (HWL's
Guarantee).
2.9 FRAUD
None of the limitations contained in this paragraph 2 shall apply to any
claim which arises or is increased as the consequence of, or which is
delayed as a result of, fraud or dishonesty by the Seller or any of its
directors, officers, employees, representatives, advisors or agents.
2.10 DOUBLE CLAIMS
The Purchaser or the Purchaser Nominee shall not be entitled to recover
from the Seller or HWL under this Agreement more than once in respect of
the same Losses suffered.
3. CLAIMS
3.1 NOTIFICATION OF CLAIMS UNDER THIS AGREEMENT
Notices of claims under this Agreement shall be given by the Purchaser
to the Seller within the time limits specified in paragraph 2.1,
specifying such information in relation to the legal and factual basis
of the claim as is available to the Purchaser and reasonable details of
the evidence on which the Purchaser relies and, if practicable, an
estimate of the amount of Losses which are, or are to be, the subject of
the claim.
3.2 COMMENCEMENT OF PROCEEDINGS
Any claim notified pursuant to paragraph 3.1 shall (if it has not been
previously satisfied, settled or withdrawn) be deemed to be irrevocably
withdrawn 12 months after the relevant claim is notified pursuant to
paragraph 3.1 or in the case of any contingent liability, 12 months
after such contingent liability becomes an actual liability and is due
and payable unless legal proceedings in respect of it (i) have been
commenced by being both issued and served and (ii) are being and
continue to be pursued with reasonable diligence.
3.3 CONDUCT OF CLAIMS
In the event that any claim is made against the Seller and/or any Group
Company under any Transaction Agreement and the Purchaser and/or the
Purchaser Nominee are/is included in or joined to that claim then:
(i) no admissions in relation to such third party claim shall be
made by or on behalf of the Purchaser, the Purchaser Nominee or
any other member of the Purchaser's Group and the claim shall
not be compromised, disposed of or settled without the written
consent of the Seller;
34
(ii) the Seller shall be entitled at its own expense and in its
absolute discretion, by notice in writing to the Purchaser, to
take such action as it shall deem necessary to avoid, dispute,
deny, defend, resist, appeal, compromise or contest such claim
or liability (including, without limitation, making
counterclaims or other claims against third parties) in the name
of and on behalf of the Purchaser or other member of the
Purchaser's Group concerned and to have the conduct of any
related proceedings, negotiations or appeals and in that
connection the Purchaser shall give or cause to be given
instructions to such professional or legal advisers as the
Seller may nominate to act on behalf of the Purchaser or other
member of the Purchaser's Group concerned but in accordance with
the Seller's instructions;
(iii) the Purchaser shall, and the Purchaser shall procure any other
members of the Purchaser's Group relevant to the claim shall,
give to the Seller, subject to their being paid all reasonable
costs and expenses and indemnified to their reasonable
satisfaction against any liability or damages incurred thereby,
all such information and assistance including access to premises
and personnel, and the right to examine any assets, accounts,
documents and records, as the Seller may reasonably request and
which is not covered by confidentiality obligations or
constitutes attorney/client work product.
35
SCHEDULE 3
PRINCIPAL SUBSIDIARY COMPANIES
1. Xxxxxxxxx Essar Limited
2. Xxxxxxxxx Essar Mobile Services Limited
3. Xxxxxxxxx Telecom East Limited
4. Fascel Limited
5. Aircel Digilink India Limited
6. Xxxxxxxxx Essar South Limited
7. Xxxxxxxxx Telecommunications (Hong Kong) Limited
8. Xxxxxxxxx Global Communications Holdings Limited
9. BFKT (Thailand) Limited
10. Xxxxxxxxx CAT Wireless MultiMedia Limited
11. Partner Communications Company Limited
12. PT Xxxxxxxxx XX Telecommunications
13. Xxxxxxxxx Telecommunications (Vietnam) S.a.r.l.
14. PKNS (Thailand) Limited
15. Xxxxxxxxx Wireless Multimedia Holdings Limited
16. Xxxxxxxxx Telephone Company Limited
17. Xxxxxxxxx 3G Services (HK) Limited
18. Xxxxxxxxx Telephone (Macau) Company Limited
36
EXECUTION PAGE TO THE SHARE PURCHASE AGREEMENT
SIGNED by /s/ Xxxxx X. Xxxx
------------------------------ )
)
for and on behalf of )
XXXXXXXXX TELECOMMUNICATIONS )
INVESTMENT HOLDINGS LIMITED )
in the presence of: ) Signature: /s/ Xxxxx X. Xxxx
-------------------
Witness
Signature: /s/ Xxxx Xxxx
------------------------------
Name: Xxxx Xxxx
------------------------------
Address: Linklaters, Xxx Xxxx Xxxxxx
------------------------------
London
------------------------------
Occupation: Trainee Solicitor
------------------------------
THE COMMON SEAL OF ) /s/ Xxxxx Xxxx [SEAL]
XXXXXXXXX WHAMPOA LIMITED ) ---------------------
) Xxxxx Xxxx
was hereunto affixed in the presence of: ) Director
)
)
) Name: Xxxxx Xxxx
----------------------
Signature: /s/ Xxxxx Xxxx
----------------------
Company Secretary
Witness
Signature: /s/ Xxx Sin Xx, Xxxxxxxxx
------------------------------
Name: Xxx Sin Xx, Xxxxxxxxx
------------------------------
Address: Solicator, Hong Kong SAR
------------------------------
------------------------------
Occupation:
------------------------------
SIGNED by /s/ Aldo Mareuse
------------------------------ )
)
for and on behalf of )
ORASCOM TELECOM EURASIA )
LIMITED )
in the presence of: ) Signature: /s/ Aldo Mareuse
-------------------
Witness
Signature: /s/ F. Xxxxx Xxxxxxx
---------------------------------
Name: F. Xxxxx Xxxxxxx
---------------------------------
Address: White & Case, 0 Xxx Xxxxx Xxxxxx
---------------------------------
XXXXXX XX0X 0XX
---------------------------------
Occupation: Lawyer
---------------------------------
SIGNED by /s/ 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 X. Xxxxxxx Elfaham
------------------------------
Name: Xxxx X. Xxxxxxx Elfaham
------------------------------
Address: 00 Xx Xxxxx Xxxxxx
------------------------------
Mohandseen, Cario, Egypt
------------------------------
Occupation: Attorney At Law
------------------------------
TABLE OF CONTENTS
Page
----
1. INTERPRETATION.........................................................1
2. SALE AND PURCHASE......................................................8
3. CONSIDERATION..........................................................9
4. SIGNING AND CLOSING....................................................9
5. ACTIONS AT CLOSING....................................................11
6. POST-CLOSING OBLIGATIONS..............................................12
7. SELLER'S AND HWL'S WARRANTIES.........................................13
8. PURCHASER'S AND PURCHASER NOMINEE'S WARRANTIES........................13
9. HWL'S GUARANTEE.......................................................15
10. DISCLOSURE DOCUMENTS..................................................16
11. CONFIDENTIALITY AND ANNOUNCEMENTS.....................................17
12. ASSIGNMENT............................................................17
13. FURTHER ASSURANCE.....................................................18
14. ENTIRE AGREEMENT......................................................18
15. SEVERANCE AND VALIDITY................................................18
16. VARIATIONS............................................................18
17. REMEDIES AND WAIVERS..................................................19
18. EFFECT OF CLOSING.....................................................19
19. SURVIVAL AND RIGHTS OF RESCISSION.....................................19
20. THIRD PARTY RIGHTS....................................................19
21. PAYMENTS..............................................................19
22. COSTS AND EXPENSES....................................................20
23. NOTICES...............................................................20
24. COUNTERPARTS..........................................................22
25. GOVERNING LAW AND JURISDICTION........................................22
26. AGENT FOR SERVICE OF PROCESS..........................................22
SCHEDULE 1 WARRANTIES.........................................................23
SCHEDULE 2 LIMITATIONS ON LIABILITY OF THE SELLER.............................32
SCHEDULE 3 PRINCIPAL SUBSIDIARY COMPANIES.....................................36
i
