Execution Version
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4 December 2007
SHARE PURCHASE AGREEMENT
amongst
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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TABLE OF CONTENTS
Page
1. INTERPRETATION............................................................1
2. SALE AND PURCHASE.........................................................5
3. CONSIDERATION.............................................................6
3A. CONDITIONS................................................................6
4. PRE-CLOSING OBLIGATIONS...................................................6
5. CLOSING...................................................................8
6. SELLER'S AND OTH'S WARRANTIES.............................................8
7. PURCHASER'S AND HWL'S WARRANTIES..........................................9
8. OTH'S GUARANTEE...........................................................9
9. CONFIDENTIALITY AND ANNOUNCEMENTS........................................10
10. ASSIGNMENT...............................................................11
11. FURTHER ASSURANCE........................................................11
12. ENTIRE AGREEMENT.........................................................11
13. SEVERANCE AND VALIDITY...................................................11
14. VARIATIONS...............................................................11
15. REMEDIES AND WAIVERS.....................................................12
16. EFFECT OF CLOSING........................................................12
17. SURVIVAL AND RIGHTS OF RESCISSION........................................12
18. THIRD PARTY RIGHTS.......................................................12
19. PAYMENTS.................................................................12
20. COSTS AND EXPENSES.......................................................12
21. NOTICES..................................................................13
22. COUNTERPARTS.............................................................15
23. GOVERNING LAW AND JURISDICTION...........................................15
24. AGENT FOR SERVICE OF PROCESS.............................................15
THE SCHEDULE: WARRANTIES......................................................16
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THIS AGREEMENT is made on the 4 day of December 2007
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, the
British Virgin Islands (the "Purchaser");
(2) XXXXXXXXX WHAMPOA LIMITED, a company incorporated in Hong Kong whose
registered office is at 22(nd) 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 Xxxxx
0, 00, Xxx Xxxxxxxx Xxxxxxx Xxxxxx, Ta' Xinex, Malta (the "Seller"); and
(4) ORASCOM TELECOM HOLDING S.A.E., a company established in accordance with
the laws of the Arab Republic of Egypt whose principal place of business is
at 2005A Nile City Towers, Cornish El Nile, Ramlet Xxxxxxx, Cairo, Egypt
(the "OTH").
WHEREAS:
(A) The Seller, a wholly owned subsidiary of OTH, has agreed to sell and HWL
has agreed to purchase, the Sale Shares (as defined in Clause 1.1
(Interpretation)) on the terms and conditions of this Agreement.
(B) OTH has agreed to give the guarantee set forth in Clause 8 (OTH's
Guarantee), and to undertake certain other obligations as set out in this
Agreement.
(C) The Purchaser, an indirect wholly owned subsidiary of HWL,
has been nominated by HWL to acquire the Sale Shares.
NOW IT IS HEREBY AGREED as follows:
1. INTERPRETATION
1.1 In this Agreement:
"2005 Transaction means the Shareholders' Agreement, the
Documents" Co-operation Agreement and the Amended and
Restated Registration Rights Agreement.
"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
Registration Rights rights agreement dated 21 December 2005 and
entered into
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Agreement" by and among the Seller, OTH, the Company and
Xxxxxx Kong (Holdings) Limited.
"Business Day" means a day (other than a Saturday or Sunday or
a public holiday) when commercial banks
generally open for business in Hong Kong and
the Arab Republic of Egypt.
"Cayman Islands Register means the register of members of the Company
of Members" kept and maintained in the Cayman Islands from
time to time.
"Cayman Islands Register means the register of transfers of shares of the
of Transfers" 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" 4 January 2008 or such earlier date as the
parties hereto may agree in writing.
"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).
"Conditions" has the meaning given to it in Clause 3 A.1.
"Consideration" means the consideration payable in Hong Kong
Dollars in immediately available funds being the
aggregate Purchase Price for the Sale Shares as
set out in Clause 3 (Consideration).
"Co-operation Agreement" means the co-operation agreement dated 21
December 2005 and entered into between the
Company and OTH.
"Encumbrance" means liens, security interests, options, rights
of first refusal, rights of first offer, tag
along rights, claims, mortgages, charges,
licences to third parties, leases to third
parties or security agreements or any other
material restrictions or limitations on the use
of real or personal property or irregularities
in title thereto.
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"Financing Parties" means those banks and financial institutions and
institutional and professional investors that
provide finance from time to time to the
Seller and its Affiliates where such finance is
secured by the Sale Shares; and "Financing
Party" shall be construed accordingly.
"Governmental Authority" means any international, supranational,
national, provincial, regional, federal, state,
municipal or local government, any
instrumentality, subdivision, court,
administrative or regulatory agency or
commission or other authority thereof, or any
quasi-governmental, self-regulatory or private
body exercising any regulatory, taxing,
importing or other governmental or
quasi-governmental authority, which shall
include where applicable, the Stock Exchange,
the Cairo and Alexandria Stock Exchange, the
Hong Kong Securities and Futures Commission and
the US Securities and Exchange Commission.
"HK$" or "Hong Kong the lawful currency of Hong Kong.
Dollars"
"holding company" has the meaning given to it in the Companies
Ordinance.
"Hong Kong" means the Hong Kong Special Administrative
Region of the People's Republic of China.
"Law" means any statute, law, ordinance, rule,
regulation or guidelines of any
Governmental Authority.
"Listing Rules" means the Rules Governing the Listing of
Securities on the Stock Exchange.
"Long Stop Time" means 5:00 p.m. (Hong Kong time) on 3 January
2008.
"Loss" or "Losses" means any and all losses, claims, liabilities,
damages, judgments, proceedings, arbitration,
assessments, charges, fines and penalties,
interest, reasonable costs and expenses,
including reasonable expenses of investigation
and enforcement of any claim or indemnity and
all reasonable legal and other professional fees
and expenses.
"Person" means and includes an individual, a partnership,
a joint venture, a corporation, a limited
liability company, a limited liability
partnership, a trust, an incorporated
organisation and a Governmental
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Authority.
"Purchase Price" means HK$11.00 per Sale Share.
"Purchaser's and HWL's means the representations and warranties by the
Warranties" Purchaser and HWL referred to in Clause 8.1
(Purchaser `s and HWL `s Warranties).
"Register of Members" means the register of members of the Company
kept and maintained by its Hong Kong branch
share registrar.
"Sale Shares" means 441,026,028 Shares in the issued share
capital of the Company.
"Security Agent" means a security or collateral agent and any
replacement or successor thereof, acting for the
benefit of the Financing Parties.
"Seller's Designated means such bank account as designated in writing
Account" by the Seller (or the Security Agent) to the
Purchaser at least 5 Business Days prior to the
Closing Date for effecting transfer of the
Consideration pursuant to the terms hereof.
"Shareholders' means the shareholders' agreement dated 21
Agreement" December 2005 and entered into among the Seller,
OTH, the Purchaser and HWL 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.
"subsidiary" has the meaning given to it in the Companies
Ordinance.
"Tax" or "Taxation" means any income, gross receipts, withholding,
sales or value added tax.
"Transaction Documents" means this Agreement and other documents
contemplated to be executed and exchanged prior
to or at Closing.
"Warranties" means the representations and warranties in
Clause 7.1 (Seller's and OTH's Warranties) and
set out in the Schedule (Warranties).
1.2 In this Agreement, unless the context otherwise requires:
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(i) any reference in this Agreement to "writing" or comparable
expressions includes a reference to facsimile transmission or
comparable means of communication (excluding, for the avoidance of
doubt, email);
(ii) words expressed in the singular number shall include the plural and
vice versa, words expressed in the masculine shall include the
feminine and neuter gender and vice versa;
(iii) references to Clauses, Schedules and Recitals are references to
clauses, schedules and recitals of this Agreement;
(iv) reference to "day" or "days" are to calendar days;
(v) this "Agreement" or any other agreement or document shall be
construed as a reference to this Agreement or, as the case may be,
such other agreement or document as the same may have been, or may
from time to time be, amended, varied, novated or supplemented;
(vi) "include," "includes," and "including" are deemed to be followed by
"without limitation" whether or not they are in fact followed by
such words or words of similar import;
(vii) the table of contents and headings are inserted for convenience only
and do not affect the construction of this Agreement;
(viii) references herein to statutory provisions shall be construed as
references to those provisions as amended or re-enacted or as their
application is modified by other provisions and shall include any
provisions of which they are re- enactments (whether with or without
modification) but in each case as at the date of this Agreement;
(ix) references to a "company" include any company, corporation or other
body corporate wherever and however incorporated or established;
(x) references to "party" or "parties" are to a party to or the parties
to this Agreement; and
(xi) references to any English legal term for any action, remedy, method
of financial proceedings, legal document, legal status, court,
official or any legal concept or thing shall, in respect of any
jurisdiction other than England, be deemed to include what most
nearly approximates in that jurisdiction to the English legal term.
1.3 The Schedule to this Agreement is incorporated into and form an integral
part of this Agreement.
2. SALE AND PURCHASE
2.1 The Seller shall sell and HWL shall, through the Purchaser, 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.
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2.2 The Seller covenants and confirms that, subject only to satisfaction of the
Conditions, it has the right to transfer legal and beneficial title to the
Sale Shares.
2.3 The Seller covenants and confirms that the Sale Shares shall be sold and
purchased at Closing free from all Encumbrances.
2.4 The Seller waives and shall procure the waiver of any restrictions on
transfer (including all pre-emption rights) which may exist in relation to
the Sale Shares.
2.5 Neither the Seller nor the Purchaser shall be obliged to complete the sale
and purchase of any of the Sale Shares unless the sale and purchase of all
the Sale Shares is completed simultaneously.
3. CONSIDERATION
The consideration for the sale and purchase of the Sale Shares shall be the
payment of the sum of HK$4,851,286,308 (Hong Kong Dollars Four Billion
Eight Hundred and Fifty One Million Two Hundred and Eighty Six Thousand
Three Hundred and Eight Only) at Closing in accordance with Clause 5.2.
3A. CONDITIONS
3A.1 The agreement to sell and purchase the Sale Shares contained in Clause 2 is
conditional upon the delivery to the Seller of:
(i) a deed of release relating to the security over the Sale Shares
previously granted in favour of the Security Agent, and executed by
the Security Agent and/or such other Financing Party or Parties as may
be required for this purpose; and
(ii) any other consents required by the Security Agent or any such
Financing Party or Parties for the transfer of the Sale Shares
pursuant to the terms of the financing secured by the Sale Shares (the
"Conditions").
3A.2 The Seller shall use its best endeavours to ensure that the Conditions are
fulfilled promptly after the date of this Agreement, and in any event on or
before the Long Stop Time. The Seller shall notify the Purchaser in writing
promptly upon becoming aware that the Conditions have been fulfilled.
3A.3 If the Conditions are not fulfilled by the Long Stop Time, the Purchaser
and HWL shall be entitled to terminate this Agreement by written notice to
the others. In such event none of the parties shall have any claim under
this Agreement of any nature whatsoever against the others except in
respect of any rights and liabilities which have accrued before such
termination.
4. PRE-CLOSING OBLIGATIONS
4.1 Simultaneous with or after the execution and delivery of this Agreement by
all parties and prior to the Closing Date, the Seller shall deliver or
procure the delivery of the following to the Purchaser:
(a) a written request in the prescribed form for removal of the Sale
Shares
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registered in the name of the Security Agent from the Register of
Members to the Cayman Islands Register of Members;
(b) written resignations in the prescribed form duly signed from:
(i) Aldo Mareuse and Xxxxxxx Xxxx X'Xxxxxx as directors of the
Company and Xxxx Xxxxxxx as an alternate director to Aldo
Mareuse;
(ii) Aldo Mareuse and Xxxxxxx Xxxx X'Xxxxxx as members of the Finance
Committee of the Company;
(iii) Xxxxxx Xxxxxxx as one of the Commissioners of the Board of
Commissioners of PT. Xxxxxxxxx XX Telecommunications; and
(iv) Aldo Mareuse as a member of the Co-ordination Committee of the
BCC (Business Cooperation Contract) Project between Hanoi
Telecom JSC and Xxxxxxxxx Telecommunications (Vietnam) Sarl
all with effect from the Closing Date;
(c) a letter agreement for termination of each of the 2005 Transaction
Documents with effect from the Closing Date with mutual release and
waiver of all parties' respective rights and claims thereunder against
the others duly signed by the Seller and/or OTH, as the case may be;
(d) a certified extract of the written resolutions of the directors of the
Seller approving and authorising the execution, delivery and
performance of this Agreement (including the sale of the Sale Shares
to the Purchaser as of and with effect from the Closing Date) and each
of the other Transaction Documents to which it is a party;
(e) a certified extract of the written resolutions of the directors of OTH
approving and authorising the execution, delivery and performance of
this Agreement and each of the other Transaction Documents to which it
is a party;
(f) a certified copy of each power of attorney (if any) under which any
document to be delivered to the Purchaser has been executed; and
(g) an original incumbency certificate from the registered agent of the
Seller in the British Virgin Islands (or its equivalent in Malta)
dated prior to the date of this Agreement.
4.2 Simultaneous with or after the execution and delivery of this Agreement by
all parties and prior to the Closing Date, the Purchaser shall deliver to
the Seller:
(a) a counterpart of the letter agreement for termination of each of the
2005 Transaction Documents with effect from the Closing Date with
mutual release and waiver of all parties' respective rights and claims
thereunder against the others duly signed by the Purchaser, HWL and/or
the Company, under common seal (if required), as the case may be;
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(b) a certified extract of the resolutions of the directors of the
Purchaser approving and authorising the execution, delivery and
performance of this Agreement and each of the other Transaction
Documents to which it is a party;
(c) a certified extract of the written resolutions of the directors of HWL
approving and authorising the execution, delivery and performance of
this Agreement and each of the other Transaction Documents to which it
is a party; and
(d) deliver to the Seller a certified copy of each power of attorney (if
any) under which any document to be delivered to the Seller has been
executed.
5. CLOSING
5.1 Subject to fulfilment of the Conditions, Closing shall take place at 12
noon, Hong Kong time on the Closing Date at the offices of HWL at 00/X,
Xxxxxxxxx Xxxxx, 00 Xxxxxxxx Xxxx, Xxxx Xxxx or at such other place or time
as is agreed in writing by the Seller and the Purchaser.
5.2 At Closing and against delivery to the Seller of a copy irrevocable
instructions issued for payment of the full amount of the Consideration
into the Seller's Designated Account by wire transfer, the Seller shall:
(i) deliver or procure delivery to the Purchaser or a Person designated
by the Purchaser a stock transfer form in relation to the transfer
of the Sale Shares to the Purchaser duly executed by the Seller or
the Security Agent (or its nominee);
(ii) provide such assistance as the Purchaser may reasonably require for
effecting registration of the transfer of the Sale Shares to the
Purchaser as of the Closing Date; and
(iii) deliver or procure that there be delivered to the Purchaser or a
Person designated by the Purchaser an original share certificate
issued by the Company in the name of the Seller or the Security
Agent (or its nominee) representing the Sale Shares for
cancellation.
5.3 If the provisions of Clause 5.2 are not complied with on the Closing Date,
the Purchaser and HWL shall not be obliged to complete this Agreement and
may treat this Agreement as terminated for breach of condition and require
immediate repayment of the Consideration to the extent received in the
Seller's Designated Account by the Seller (without limiting the Purchaser's
and the HWL's rights and remedies under this Agreement).
6. SELLER'S AND OTH'S WARRANTIES
6.1 The Seller hereby represents and warrants to the Purchaser and HWL that
each of the Warranties is true and accurate in all respects and not
misleading as at the date of this Agreement.
6.2 OTH hereby represents and warrants to the Purchaser and HWL that each of
Warranty 1.1(ii) and, insofar as they relate to OTH, Warranties 1.2(i),
(ii) and (iii) and 1.3(ii)
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are true and accurate in all respects and not misleading as at the date of
this Agreement.
6.3 The Seller and OTH acknowledge that the Purchaser and HWL are entering into
this Agreement on the basis of and in reliance upon representations in the
terms of the Warranties.
6.4 Each of the Warranties shall be separate and independent and (unless
expressly provided otherwise) shall not be limited by reference to any
other Warranty or by anything in this Agreement.
7. PURCHASER'S AND HWL'S WARRANTIES
7.1 The Purchaser and HWL hereby jointly and severally represent and warrant to
the Seller and OTH as of the date of this Agreement that each of the
warranties and representations in this Clause 7 is true and accurate in all
respects and not misleading as at the date of this Agreement:
(i) The Purchaser is a corporation duly organised, validly existing and
in good standing under the laws of the British Virgin Islands.
(ii) The Purchaser is not in receivership or liquidation nor has it taken
any step to enter liquidation, and no petition has been presented
for winding up the Purchaser. There are no grounds on which a
petition or application could be based for the winding up or
appointment of a receiver of the Purchaser.
(iii) The Purchaser has the corporate power and authority to execute,
deliver and perform its obligations under and consummate the
transactions contemplated by each of the Transaction Documents to
which it is a party and the other instruments and agreements to be
executed and delivered by the Purchaser as contemplated hereby and
thereby.
(iv) The entry into and performance of the Transaction Documents to which
the Purchaser or HWL is a party will not constitute a breach by the
Purchaser or HWL of or default under: (A) any provision of the
organisational documents of the Purchaser or HWL; (B) any legally
binding obligation or any material agreement or undertaking or the
terms of any guarantee by which the Purchaser or HWL is bound; or
(C) any Law applicable to the Purchaser or HWL.
7.2 Each of the Purchaser's and HWL's Warranties shall be separate and
independent and (unless expressly provided otherwise) shall not be limited
by reference to any other Purchaser's and HWL's Warranty or by anything in
this Agreement.
7.3 The Purchaser and HWL acknowledge that the Seller and OTH are entering into
this Agreement on the basis of and in reliance upon representations in the
terms of the Purchaser's and HWL's Warranties.
8. OTH'S GUARANTEE
8.1 In consideration of the Purchaser and HWL entering into this Agreement, OTH
unconditionally and irrevocably guarantees to the Purchaser and HWL the due
and
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punctual performance and payment by the Seller of all its financial and
other obligations under or pursuant to this Agreement (the "Seller's
Guaranteed Obligations").
8.2 If and whenever the Seller defaults for any reason whatsoever in the
performance of any of the Seller's Guaranteed Obligations, OTH shall
immediately upon demand unconditionally perform (or procure the performance
of) and satisfy (or procure the satisfaction of) the Seller's Guaranteed
Obligations as if it was the principal obligor in regard to which such
default has been made.
8.3 This guarantee is to be a continuing guarantee and accordingly is to remain
in force until all Seller's Guaranteed Obligations shall have been
performed or satisfied. This guarantee is in addition to and without
prejudice to and not in substitution for any rights or security which the
Purchaser or HWL may now or hereafter have or hold for the performance and
observance of the Seller's Guaranteed Obligations.
8.4 As a separate and independent obligation, OTH agrees (as primary obligor
and not only as surety) to indemnify, defend and hold harmless the
Purchaser and HWL from time to time (without set-off or counterclaim) from
and against any and all Losses suffered by the Purchaser or HWL to the
extent of any relevant limit on the liability of the Seller in this
Agreement as a result of (i) the failure by the Seller to perform any of
the Seller's Guaranteed Obligations; or (ii) any of the Seller's Guaranteed
Obligations (including, without limitation, any moneys payable) not being
enforceable, effective against or recoverable from the Seller by reason of
any legal limitation, disability or incapacity on or of the Seller or any
other fact or circumstances whatsoever (other than any limitation imposed
by this Agreement). The amount of the Loss or of any payment to be made by
OTH pursuant to this Clause 8.4 or any other provision of this Clause 8
shall be equal to, and shall in no circumstances exceed, the amount which
the Purchaser or HWL would otherwise have been entitled to recover from the
Seller under the terms of this Agreement.
8.5 The liability of OTH under this Clause 8:
(i) shall not be released or diminished by any variation of the Seller's
Guaranteed Obligations or any forbearance, neglect or delay in seeking
performance of the Seller's Guaranteed Obligations or any granting of
time for such performance; and
(ii) shall not be affected or impaired by reason of any other fact or event
which in the absence of this provision would or might constitute or
afford a legal or equitable discharge or release or a defence to a
guarantor.
8.6 OTH waives any right it may have of first requiring the Purchaser or HWL to
proceed against the Seller before claiming from OTH under this Clause 8.
9. CONFIDENTIALITY AND ANNOUNCEMENTS
No announcement, statement, press conference or other communication shall
be (or authorised to be) made, released, issued or held by or on behalf of
any party or its directors, officers, employees, agents or advisers before,
on or after Closing concerning this Agreement, or the subject matter or
provisions of, or transactions or
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matters referred to in or contemplated by, or negotiations leading to, this
Agreement; provided that nothing in the foregoing shall prohibit the issue
or release by any party of any announcement or circular if and to the
extent required by law or any regulatory body or the rules of any
recognised stock exchange, including the Stock Exchange, New York Stock
Exchange, Inc. and the Cairo and Alexandria Stock Exchange, on which the
shares of such party, its Affiliates or the Company are listed but the
party with an obligation to issue or release an announcement or a circular
shall consult with the other parties insofar as is reasonably practicable
before complying with such an obligation.
10. ASSIGNMENT
This Agreement may not be transferred, assigned, pledged or hypothecated by
any party hereto without the express written consent of the other parties
hereto.
11. FURTHER ASSURANCE
The Seller and OTH shall from time to time and at their own cost do,
execute and deliver or procure to be done, executed and delivered all such
further acts, documents and things required by, and in a form reasonably
satisfactory to, the Purchaser and HWL to give full effect to this
Agreement and its rights, powers and remedies under this Agreement. The
Purchaser 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 Seller and OTH to give full effect to this Agreement
and its rights, powers and remedies under this Agreement.
12. ENTIRE AGREEMENT
This Agreement, together with each other Transaction Documents, constitute
the whole agreement between the parties and supersedes any previous
arrangements or agreements between them relating to the sale and purchase
of the Sale Shares.
13. SEVERANCE AND VALIDITY
13.1 If any provision of this Agreement is or becomes illegal, invalid or
unenforceable in any respect under the law of any jurisdiction, such
provision shall apply with whatever deletion or modification is necessary
so that the provision is legal, valid and enforceable and gives effect to
the commercial intention of the parties.
13.2 To the extent it is not possible to delete or modify the provision, in
whole or in part, under Clause 13.1, then such provision or part of it
shall, to the extent that it is illegal, invalid or unenforceable, be
deemed not to form part of this Agreement and the legality, validity and
enforceability of the remainder of this Agreement shall, subject to any
deletion or modification made under Clause 13.1, not be affected.
14. VARIATIONS
No variation of this Agreement shall be effective unless in writing and
signed by the parties.
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15. REMEDIES AND WAIVERS
15.1 No waiver of any right under this Agreement shall be effective unless in
writing. Unless expressly stated otherwise a waiver shall be effective only
in the circumstances for which it is given.
15.2 No delay or omission by any party in exercising any right or remedy
provided by law or under this Agreement shall constitute a waiver of such
right or remedy.
15.3 The single or partial exercise of a right or remedy under this Agreement
shall not preclude any other nor restrict any further exercise of any such
right or remedy.
15.4 The rights and remedies provided in this Agreement are cumulative and do
not exclude any rights or remedies provided by law.
16. EFFECT OF CLOSING
The provisions of this Agreement which remain to be performed following
Closing shall continue in full force and effect notwithstanding Closing.
17. SURVIVAL AND RIGHTS OF RESCISSION
17.1 Subject to Clause 5.3, no party shall have any right to rescind this
Agreement under any circumstance.
17.2 The representations and warranties of any party contained in this Agreement
shall survive the sale and purchase of the Sale Shares pursuant to this
Agreement.
18. THIRD PARTY RIGHTS
This Agreement is made for the benefit of the parties, their successors and
permitted assigns and is not intended to benefit or be enforceable by any
other person.
19. PAYMENTS
19.1 Any amount payable by the Seller or OTH to the Purchaser or HWL or by the
Purchaser or HWL to the Seller or OTH shall be made in full without set-off
or counter-claim and free from any deduction or withholding whatsoever,
except as required by law.
19.2 If any deduction or withholding is required by law to be made from any
payment or if the recipient is subject to Tax in respect of such payment,
the payer shall increase the amount of the payment to the extent necessary
to ensure that the net amount received and retained by the recipient (after
taking into account all deductions, withholdings or Tax) is equal to the
amount it would have received had the payment not been subject to any such
deductions, withholdings or Tax.
20. COSTS AND EXPENSES
20.1 Except as provided otherwise, each party shall pay its own costs and
expenses in connection with the negotiations, preparation and performance
of this Agreement and the other Transaction Documents.
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20.2 Any transfer, registration, stamp, documentary or similar taxes chargeable
in connection with the transfer of the Sale Shares under this Agreement
shall be borne equally by the Seller and the Purchaser. The Seller and the
Purchaser shall co-operate in minimising any such taxes and in the timely
making of all filings, returns, reports and forms as may be required in
connection therewith.
21. NOTICES
21.1 Any notice or other communication to be given under or in connection with
this Agreement ("Notice") shall be in the English language in writing and
signed by or on behalf of the party giving it and marked for the attention
of the relevant party. A Notice may be delivered personally or sent by fax,
pre-paid recorded delivery or pre- paid registered airmail to the address
or fax number provided in Clause 21.3.
21.2 A Notice shall be deemed to have been received:
(i) at the time of delivery if delivered personally;
(ii) at the time of transmission if sent by fax;
(iii) two Business Days after the time and date of posting if sent by
pre-paid recorded delivery; or
(iv) five Business Days after the time and date of posting if sent by
pre-paid registered airmail,
provided that if deemed receipt of any Notice occurs after 6.00 p.m. or is
not on a Business Day, deemed receipt of the Notice shall be 9.00 a.m. on
the next Business Day. References to time in this Clause 21 are to local
time in the country of the addressee.
21.3 The addresses and fax numbers for service of Notice are:
Purchaser:
Name: Xxxxxxxxx Telecommunications Investment
Holdings Limited
Address: x/x 00(xx) Xxxxx, Xxxxxxxxx Xxxxx
x0 Xxxxxxxx Xxxx
Xxxx Xxxx
For the attention of: The Company Secretary
Fax number: (000) 0000 0000
13
HWL:
Name: Xxxxxxxxx Whampoa Limited
Address: 22(nd) Xxxxx, Xxxxxxxxx Xxxxx
00 Xxxxxxxx Xxxx
Xxxx Xxxx
For the attention of: The Company Secretary
Fax number: (000) 0000 0000
Seller:
Name: Orascom Telecom Eurasia Limited
Address: x/x 0000X Xxxx Xxxx Xxxxxx - Xxxxx Xxxxx
Cornish El Xxxx
Xxxxxx Xxxxxxx - 00000
Xxxxx
Xxxxx
For the attention of: Legal Department
Fax number: 202 2461 5055
OTH
Name: Orascom Telecom Holding S.A.E.
Address: 2005A Nile City Towers - South Tower
Cornish El Xxxx
Xxxxxx Xxxxxxx
Cairo
Egypt
For the attention of: Xx. Xxxxxx Xxxxxxx, Chairman & CEO
Fax number: 202 2461 5055
With a copy to: Orascom Telecom Holding S.A.E.
Address: 2005A Nile City Towers - South Tower
Cornish El Xxxx
Xxxxxx Xxxxxxx
Cairo
Egypt
For the attention of: Legal Department
Fax number: 202 2461 5165
21.4 A party shall notify the other parties of any change to its address in
accordance with the provisions of this Clause 21 provided that such
notification shall only be effective on the later of the date specified in
the notification and 5 (five) Business Days after deemed receipt.
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22. COUNTERPARTS
This Agreement may be executed in counterparts and shall be effective when
each party has executed a counterpart. Each counterpart shall constitute an
original of this Agreement and all counterparts taken together shall
constitute one and the same agreement. Delivery of a facsimile executed
counterpart of the signature page shall be effective as delivery of an
original executed counterpart of this Agreement.
23. GOVERNING LAW AND JURISDICTION
23.1 This Agreement shall be governed by and construed in accordance with
English law.
23.2 The parties irrevocably agree that the courts of England are to have
non-exclusive jurisdiction to settle any dispute which may arise out of or
in connection with this Agreement and proceedings in respect of any dispute
may be brought in such courts.
24. AGENT FOR SERVICE OF PROCESS
24.1 Each of the Purchaser 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 Seller and OTH irrevocably appoints Law
Debenture of Corporate Services Limited of Xxxxx Xxxxx, 000 Xxxx Xxxxxx,
Xxxxxx, Xxxxxxx, XX0X 0XX, in each case as its agent for service of process
in England.
24.2 If any person appointed as agent for service of process ceases to act as
such the relevant party shall immediately appoint another person to accept
service of process on its behalf in England and notify the other parties of
such appointment. If it fails to do so within ten Business Days any other
party shall be entitled by notice to the other parties to appoint a
replacement agent for service of process.
IN WITNESS WHEREOF each party has executed this Agreement, or caused this
Agreement to be executed by its duly authorised representatives.
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Schedule
Warranties
The Seller hereby represents and warrants to the Purchaser and HWL as of the
date hereof (save in respect of 1.1(ii) and the Warranties given by OTH in
1.2(i), (ii) and (iii) and 1.3(ii)) and OTH represents and warrants to the
Purchaser and HWL as at the date hereof as set out in 1.1(ii) and, insofar as
they relate to OTH, 1.2(i), (ii) and (iii) and 1.3(ii) only, as follows:
1.1 Organisation of the Seller and OTH.
(i) The Seller is a corporation duly organised under the laws of the British
Virgin Islands, and is validly existing and in good standing under the
laws of Malta.
(ii) OTH is a corporation duly organised, validly existing and in good
standing under the laws of the Arab Republic of Egypt.
(iii) The Seller is not in receivership or liquidation nor has it taken any
step to enter liquidation, and no petition has been presented for
winding up the Seller. There are no grounds on which a petition or
application could be based for the winding up or appointment of a
receiver of the Seller.
1.2 Authority and Enforceability.
(i) Each of the Seller and OTH has the corporate power and authority to
execute, deliver and perform its obligations under and consummate the
transactions contemplated by each of the Transaction Documents to which it
is a party and the other instruments and agreements to be executed and
delivered by the Seller or OTH as contemplated hereby and thereby,
including the sale and transfer of the Sale Shares pursuant to this
Agreement.
(ii) The execution, delivery and performance of the Transaction Documents to
which either the Seller or OTH is a party, and all other instruments and
agreements to be executed and delivered by the Seller or OTH as
contemplated hereby and thereby, and the consummation of the transactions
contemplated hereby and thereby, have been duly authorised by the
respective directors and, to the extent required, the respective
shareholders of the Seller and OTH, as relevant, and no other corporate or
shareholder action on the part of the Seller or OTH is necessary to
authorise the execution, delivery and performance of the Transaction
Documents to which the Seller or OTH is a party, such other instruments and
agreements contemplated hereby and thereby or the consummation of the
transactions contemplated hereby and thereby.
(iii) The Transaction Documents to which either the Seller or OTH is a party and
all other instruments and agreements to be executed and delivered by the
Seller or OTH as contemplated hereby and thereby, when delivered in
accordance with the terms hereof, assuming the due execution and delivery
of the Transaction Documents and each such other document by the other
parties hereto and thereto, shall have been duly executed and delivered by
each of the Seller and OTH and shall be valid and binding obligations of
each of the Seller and OTH enforceable against them in accordance with
their terms, except to the extent that their enforceability may be subject
to
applicable bankruptcy, insolvency, reorganisation, moratorium or similar
laws affecting the enforcement of creditors' rights generally or to general
equitable principles.
1.3 Consents and Approvals: No Violations.
(i) The Seller has obtained all consents and made all notifications necessary
for its entry into and performance of its obligations under the Transaction
Documents.
(ii) The entry into and performance of the Transaction Documents to which the
Seller or OTH is a party will not constitute a breach by the Seller or OTH
of or default under: (A) any provision of the organisational documents of
the Seller or OTH; (B) any legally binding obligation or any material
agreement or undertaking or the terms of any guarantee by which the Seller
or OTH is bound; or (C) any Law applicable to the Seller and OTH.
(iii) The Seller has not made the decision to enter into this Agreement or to
sell the Sale Shares as a result of and on the basis of any unpublished
information relating to the Company or the Company Subsidiaries which in
the reasonable opinion of the Seller would constitute "relevant
information" (as defined in Part XIII and XIV of the Securities and Futures
Ordinance of Hong Kong (Cap.571)).
1.4 Sale Shares
The Seller is the beneficial owner of and has good and valid title to the
Sale Shares free and clear of any Encumbrance other than the security
created in favour of the Security Agent which will be released prior to or
at Closing. All of the Sale Shares are fully paid.
17
SIGNED by Xxxxx Xxxx )
for and on behalf of )
XXXXXXXXX TELECOMMUNICATIONS )
INVESTMENT HOLDINGS LIMITED )
in the presence of: ) Signature: /s/ Xxxxx Xxxx
---------------------------
Witness
Signature: /s/ Xxx Sin Yu
Name: Xxx Sin Xx, Xxxxxxxxxx
Address: Solicitor, Hong Kong SAR
Occupation: _____________________________
SIGNED by Xxxxx Xxxx )
for and on behalf of )
XXXXXXXXX WHAMPOA LIMITED )
in the presence of: )
)
)
) Name: /s/ Xxxxx Xxxx
--------------------------------
Signature:
---------------------------
Witness
Signature: /s/ Xxx Sin Yu
Name: Xxx Sin Xx, Xxxxxxxxxx
Address: Solicitor, Hong Kong SAR
Occupation: _____________________________
SIGNED by ____________________________)
for and on behalf of )
ORASCOM TELECOM EURASIA LIMITED )
in the presence of: ) Signature:
---------------------------
Witness
Signature: _____________________________
Name: _____________________________
Address: _____________________________
_____________________________
Occupation: _____________________________
18
SIGNED by ___________________________ )
for and on behalf of )
XXXXXXXXX TELECOMMUNICATIONS )
INVESTMENT HOLDINGS LIMITED )
in the presence of: ) Signature:
---------------------------
Witness
Signature: _____________________________
Name: _____________________________
Address: _____________________________
_____________________________
Occupation: _____________________________
SIGNED by ______________________________)
for and on behalf of )
XXXXXXXXX WHAMPOA LIMITED )
in the presence of: )
)
)
) Name:
--------------------------------
Signature:
---------------------------
Witness
Signature: _____________________________
Name: _____________________________
Address: _____________________________
_____________________________
Occupation: _____________________________
SIGNED by Xxxxxx Xxxxxxx )
for and on behalf of )
ORASCOM TELECOM EURASIA LIMITED )
in the presence of: ) Signature:/s/ Xxxxxx Xxxxxxx
---------------------------
Witness
Signature: /s/ Xxxx Xxxxxxx
Name: Xxxx Xxxxxxx
Address: Nile City Towers-South Tower
Cornish El Nile - Cairo-Egypt
Occupation: VP Legal Affairs - Orascom Telecom
18
SIGNED by Xxxxxx Xxxxxxx )
for and on behalf of )
ORASCOM TELECOM HOLDING S.A.E. )
in the presence of: ) Signature:/s/ Xxxxxx Xxxxxxx
---------------------------
Witness
Signature: /s/ Xxxx Xxxxxxx
Name: Xxxx Xxxxxxx
Address: Nile City Towers-South Tower
Cornish El Nile - Cairo-Egypt
Occupation: VP Legal Affairs - Orascom Telecom
19
