EXHIBIT 10.1
Dated 21 June 2004
LANKA CELLULAR SERVICES (PVT) LTD. (1)
▇▇▇▇▇▇▇▇▇ 3G ITALY INVESTMENTS S.A ▇.▇. (2)
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SALE AND PURCHASE AGREEMENT
relating to
H3G SpA
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THIS AGREEMENT is made the 21 day of June 2004
BETWEEN:
1. LANKA CELLULAR SERVICES (PVT) LTD., a company incorporated with limited
liability in Sri Lanka whose registered office is at ▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇, ▇▇▇ ▇▇▇▇▇ (the "Vendor"); and
2. ▇▇▇▇▇▇▇▇▇ 3G ITAY INVESTMENTS S.A ▇.▇., a company incorporated with
limited liability in Luxembourg whose registered office is at ▇ ▇▇▇ ▇▇
▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇, ▇-▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ (the "Purchaser").
WHEREAS:
A. The Vendor is the legal owner of one share in the issued share capital
of H3G S.p.A. (the "Sale Share").
B. The Vendor wishes to sell to the Purchaser, and the Purchaser wishes to
purchase from the Vendor, the Sale Share on the terms and subject to the
conditions set out herein.
NOW IT IS HEREBY AGREED as follows:
1. DEFINITIONS AND INTERPRETATION
1.1 In this Agreement (including the Recitals and the Schedules), the words
and expressions set out below shall have the respective meanings
attributed to them below unless the context otherwise requires:-
"Business Day" a day on which banks are open for business
in Hong Kong and Italy (excluding Saturday
or Sunday);
"Completion" completion of the sale and purchase of the
Sale Share in accordance with the terms and
conditions of this Agreement;
"Consideration" Euro5.00;
"Euro" Euro, the lawful currency of the European
Union.
"Hong Kong" the Hong Kong Special Administrative
Region of the People's Republic of China;
"Permitted Encumbrance" the Deed of Pledge over the shares in H3G
S.p.A. entered into between the Vendor, the
▇▇▇▇▇▇▇▇▇ 3G Italia S.p.A., the Mandated
Lead Arrangers, the Senior Facility Agent,
the Security Agent, the Bank Facility Agent,
the Issuing Banks, the Bank Lenders, the
Vendor Lenders and the Senior Lenders dated
19 June 2002 (each as defined in the Deed of
Pledge);
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1.2 Unless the context otherwise requires, words importing the singular only
shall include the plural and vice versa and words importing natural
persons shall include corporations and unincorporated associations and
vice versa.
1.3 The descriptive headings contained in this Agreement are for the purpose
of convenience only and do not form part of and shall not affect the
construction of this Agreement or any part thereof.
1.4 References to Clauses and Schedules are to the clauses of and the
schedules to this Agreement and references to sub-clauses, paragraphs
and sub-paragraphs are to sub-clauses of the Clauses, paragraphs of the
sub-clauses and sub-paragraphs of the paragraphs where they respectively
appear.
1.5 Reference to any statute or statutory provision shall where the context
so admits or requires be construed as reference to those provisions as
respectively amended, consolidated, extended, modified or re-enacted
from time to time, and shall include any other order, regulations,
instruments or other subordinate legislation made under the relevant
statute.
1.6 The Schedules form an integral part of this Agreement and shall have the
full force and effect as if expressly set out in the body of this
Agreement and any reference to this Agreement shall, unless the context
otherwise requires, include the Schedules.
2. SALE AND PURCHASE
2.1 Upon and subject to the terms and conditions of this Agreement, the
Vendor as sole legitimate owner of the Sale Share, shall sell the Sale
Share free from all claims, charges, liens, options and encumbrances of
any kind whatsoever, save for the Permitted Encumbrance, but together
with all rights attached, accrued or accruing thereto and all dividends
and distributions declared, made or paid or agreed to be made or paid
thereon after the date hereof.
2.2 The total consideration for the sale of the Sale Share shall be an
amount equal to Euro5.00.
3. COMPLETION
3.1 Completion shall take place simultaneously with the signing of this
Agreement, or at such other time as the parties hereto agree, at the
offices of Freshfields Bruckhaus ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇, ▇, ▇▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇ at such other place or time as the parties hereto may
agree, when all (but not part only) of the businesses set out in Clauses
3.3 to 3.4 shall be transacted.
3.2 On or before Completion, the Vendor shall procure that a board meeting
of the Vendor is held at which resolutions shall be passed approving the
registration of the transfer of the Sale Share to the Purchaser.
3.3 At Completion, the Vendor shall deliver or procure to be delivered to
the Purchaser:
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(a) a true copy of the share certificate for the Sale Share endorsed
with the name of the Purchaser as the transferee and holder of
the Sale Share;
(b) a certified extract of the resolutions of the board of directors
of the Company referred to in Clause 3.2; and
(c) a certified extract of its board (and, if required,
shareholders') resolutions approving the execution of this
Agreement and such other documents and deeds as may be required
relating to the transactions contemplated hereby.
3.4 At Completion, the Purchaser shall:
(a) pay to the Vendor the Consideration; and
(b) deliver or procure to be delivered to the Vendor such documents
and deeds as may be required relating to the transactions
contemplated hereby.
4. VENDOR'S WARRANTIES
4.1 The Vendor hereby warrants to the Purchaser that:
(i) the Vendor is the sole legal owner of the Sale Share and is
entitled to sell and transfer the Sale Share and pass full legal
ownership thereof to the Purchaser free from all claims,
charges, liens, options, encumbrances and equities of any kind
whatsoever other than the Permitted Encumbrance;
(ii) the Vendor has the power and authority to enter into this
Agreement, and to perform its obligations hereunder and enter
into all transactions contemplated by this Agreement and all
necessary corporate and other action has been taken to authorise
the execution, delivery and performance by it of this Agreement
and the documents herein contemplated;
(iii) the execution and delivery of, and the performance by the Vendor
of its obligations under this Agreement will not result in a
breach of any provision of the memorandum or articles of
association of the Vendor or any Group Company;
(iv) this Agreement constitutes and when executed will constitute
valid, legal and binding obligations on the part of the Vendor
in accordance with its terms;
(v) the Sale Share represent the entire issued and allotted share
capital of the Company and are fully paid up;
(vi) no indebtedness (actual or contingent) is outstanding between
the Vendor and each of the Group Companies; and
4.2 The Vendor shall forthwith notify the Purchaser upon becoming aware of
any event which is expected to cause any of the Vendor's warranties in
Clause 4.1 to be incorrect,
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misleading or breached in any material respects.
4.3 The Vendor's warranties set out in each paragraph of Clause 4.1 shall be
separate and independent and save as expressly provided shall not be
limited by reference to any other paragraph or anything else in this
Agreement
5. PURCHASER'S REPRESENTATIONS AND WARRANTIES
5.1 The Purchaser hereby represents and warrants to the Vendor that:
(a) the Purchaser has the power and authority to enter into this
Agreement, and to perform its obligations hereunder and enter
into all transactions contemplated by this Agreement and all
necessary corporate and other action has been taken to authorise
the execution, delivery and performance by it of this Agreement
and the documents herein contemplated;
(b) the execution and performance of this Agreement and the
documents herein contemplated do not violate any applicable law,
rule or regulation to which the Purchaser is subject; and
(c) this Agreement constitutes and will constitute valid, legal and
binding obligations on its part in accordance with its terms.
5.2 The Purchaser shall forthwith notify the Vendor upon becoming aware of
any event which is expected to cause any of the Purchaser's warranties
in Clause 5.1 to be incorrect, misleading or breached in any material
respects.
5.3 The Purchaser's warranties set out in each paragraph of Clause 5.1 shall
be separate and independent and save as expressly provided shall not be
limited by reference to any other paragraph or anything else in this
Agreement.
6. FURTHER ASSURANCE
Subject to and notwithstanding Completion, each party agrees with and
undertakes to the other party that at any time and from time to time
upon the written request of any other party, such party will:
(a) promptly and duly execute and deliver any and all such further
instruments and documents and do or procure to be done all and
any such acts or things as the other party may reasonably deem
necessary in obtaining the full benefits of this Agreement and
of the rights and ownership herein granted; and
(b) do or procure to be done each and every act or thing which the
other party may from time to time reasonably require to be done
for the purpose of enforcing the other party's rights under this
Agreement.
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7. CONFIDENTIALITY
7.1 Each party undertakes that it shall not reveal, and shall cause its
shareholders, directors, senior executives, employees and agents not to
reveal, to any third party any information concerning the transactions
contemplated hereunder and/or the contents hereof (collectively,
"Confidential Information") without the prior written approval of the
other party hereto.
7.2 Nothing in this Section 7 shall prevent a party hereto from using or
disclosing any Confidential Information which (a) is already known by
such party at the time it is disclosed to it; (b) has been rightfully
received by such party from a third party without a breach of an
obligation of confidentiality; (c) is in the public domain through no
wrongful act of such party; (d) is independently developed by such party
without use, directly or indirectly, of the Confidential Information;
(e) is required to be disclosed by applicable law, regulation or legal
process or by judicial order; or (f) is released in connection with the
proposed spin off and listing of ▇▇▇▇▇▇▇▇▇ Telecommunications
International Limited.
7.3 Notwithstanding anything contained in this Agreement, either party
acknowledges and agrees that the other party may be required by law or
any competent regulatory body (including but without limitation to The
Stock Exchange of Hong Kong Limited and the Securities and Futures
Commission) to issue time sensitive and/or urgent announcements relating
to this Agreement or matters contemplated under this Agreement. Either
party shall procure to be provided to the other party a copy of each
drafts of such time sensitive and/or urgent announcements promptly, and
shall consider in good faith any comments provided to it in a timely
manner by the other party to the extent reasonably practicable within
the time frame stipulated by law or by the relevant competent regulatory
body.
8. ENTIRE AGREEMENT
8.1 This Agreement together with all other documents which are referred to
in this Agreement as being required by its terms to be entered into by
the parties or any of them in connection with this Agreement set out and
constitute the entire agreement and understanding between the parties
relating to the transactions hereby contemplated and supersede any
previous or contemporaneous drafts, representations, warranties,
promises, assurances, arrangements, discussions, negotiations,
agreements or undertakings relating thereto whether written or oral and
no party shall rely on any representations or warranties except those
expressly stated herein.
8.2 No purported alteration or variation of this Agreement shall be
effective unless it is in writing, refers specifically to this Agreement
and is duly executed by each of the parties hereto.
9. ASSIGNABILITY
This Agreement shall enure for the benefit of successors of the
respective parties hereto but shall not be assignable.
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10. NOTICES
10.1 Any notice or other communication given or to be given pursuant to this
Agreement shall be in writing sent or delivered to the party at the
address or facsimile number as set out below or as may be notified by
such party to the other:-
Vendor:
Address : ▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇, ▇▇▇ ▇▇▇▇▇
Attention : The Company Secretary
Fax no. : ▇▇-▇▇▇-▇▇▇-▇▇▇
Purchaser:
Address : ▇ ▇▇▇ ▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇, ▇-▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇
Attention : The Company Secretary
Fax no. : ▇▇▇-▇▇▇▇-▇▇▇▇
10.2 Any notice or other communication shall be deemed to have been received
if sent by facsimile, on the date of transmission, or if delivered
personally, when delivered, or if sent by post, 7 days if overseas and
48 hours if local after the date of posting.
10.3 Reference in Clause 10.1 to writing shall include a notice or
communication by facsimile.
11. COSTS AND EXPENSES
Each party shall bear its own costs and expenses in relation to the
negotiations leading up to the sale and purchase of the Sale Share and
to the preparation, execution and carrying into effect of this Agreement
and all other documents referred to in it which relate to the sale and
purchase of the Sale Share. The Vendor confirms that no expense of
whatever nature relating to the sale and purchase of the Sale Share has
been or is to be borne by the Company.
12. COUNTERPARTS
12.1 This Agreement may be executed in any number of counterparts, and by the
parties on separate counterparts, but shall not be effective until each
party has executed at least one counterpart.
12.2 Each counterpart shall constitute an original of this Agreement, but all
the counterparts shall together constitute but one and the same
instrument.
13. INVALIDITY
Each provision of this Agreement is severable and distinct from the
others and if at any time any provision of this Agreement is or becomes
illegal, invalid or unenforceable in any respect under the law of any
jurisdiction, that shall not affect or impair:-
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(a) the legality, validity or enforceability in that jurisdiction of
any other provision of this Agreement; or
(b) the legality, validity or enforceability under the law of any
other jurisdiction of that or any other provision of this
Agreement.
14. GOVERNING LAW
This Agreement shall be governed by and construed in accordance with the
laws of Italy and the Purchaser hereby submits to the exclusive
jurisdiction of the Italy courts.
IN WITNESS whereof this Agreement has been duly executed on the date first above
written.
SIGNED by )
for and on behalf of )
LANKA CELLULAR SERVICES ) /s/ ▇▇▇▇ ▇▇▇▇
(PVT.) LTD. )
In the presence of: )
SIGNED by )
for and on behalf of )
▇▇▇▇▇▇▇▇▇ 3G ITALY ) /s/ ▇▇▇▇▇ ▇▇▇▇
INVESTMENTS S.A ▇.▇. )
In the presence of: )
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