Shareholder to enable the CCC Shareholder to lawfully enter into, and to perform his respective obligations under, this Agreement and/or the Shareholder Ancillary Agreements, other than Exchange Control Approval under _________(PLACENAME) Law.
3.2.3 This Agreement and the Shareholder Ancillary Agreements are, or when executed by the CCC Shareholder
will be, valid and binding obligations of such CCC Shareholder enforceable in accordance with their respective terms, except as to the effect, if any, of (a) applicable bankruptcy and other similar laws affecting the rights of creditors generally and (b) rules of law governing specific performance, injunctive relief and other equitable remedies.
3.2.4 All representations, warranties and other statements made by the CCC Shareholder in the Investment
Representation Letter executed and delivered to AAA by such CCC Shareholder pursuant hereto (a) is now, and at the Closing shall be true and correct, and (b) shall be deemed to be representations and warranties made pursuant to this Section 3 for all purposes of this Agreement (including but not limited to Section 11 hereof) and the Escrow Agreement.
3.3 Capitalization of CCC.
3.3.1 Authorized Share Capital. The authorized share capital of CCC _________(PLACENAME) consists entirely
of _________ ordinary shares, ZAR _________ par value per share, of which a total of 100 shares are issued and outstanding, all of which are now owned and held (and all of which at the Closing will be owned and held) only by the CCC Shareholder. No other shares in the share capital of CCC
_________(PLACENAME) are (or will at Closing be) authorized, issued or outstanding. No fractional shares of CCC _________(PLACENAME) Stock are (or will at Closing be) issued or outstanding. All issued and outstanding shares of CCC Stock have been duly authorized and validly issued, are fully paid and nonassessable, are not subject to any claim, lien, preemptive right, or right of rescission (other than the rights of all companies organized under _________(PLACENAME) company law to repurchase shares), and have been offered, issued, sold and delivered by CCC (and, if applicable, transferred) in compliance with all registration or qualification requirements (or applicable exemptions therefrom) of all applicable securities laws, CCC's Articles and Memorandum of Association and other charter documents and all agreements to which CCC or the CCC Shareholder is a party. The CCC Shareholder owns and holds (and at the Closing will own and hold) all of the issued and outstanding share capital of CCC _________(PLACENAME).
3.3.2 No Options, Warrants or Rights. There are no options, warrants, convertible or other securities, calls,
commitments, conversion privileges, preemptive rights or other rights or agreements outstanding to purchase or otherwise acquire (whether directly or indirectly) any shares of CCC's share capital or any securities convertible into or exchangeable for any shares of CCC's capital stock or obligating CCC to grant, issue, extend, or enter into, any such option, warrant, convertible or other security, call, commitment, conversion privilege, preemptive right or other right or agreement, and CCC has no liability for any dividends accrued but unpaid. No person or entity holds or has any option, warrant or other right to acquire any issued and outstanding shares of the capital stock of CCC from any record or beneficial holder of shares of the capital stock of CCC. No shares of CCC Stock are reserved for issuance under any stock purchase, stock option or other benefit plan.
3.3.3 No Voting Arrangements or Registration Rights. There are no voting agreements, voting trusts, rights of first
ref_________(PLACENAME)l or other restrictions (other than normal restrictions on transfer under
applicable securities laws) applicable to any of CCC's issued and outstanding shares of to the conversion of any shares of CCC Stock in the Exchange. CCC is not under any obligation to register under the Securities Exchange Act of 1934, as amended or otherwise any of its presently issued and outstanding securities or any securities that may be subsequently issued.
3.4 Subsidiaries.
3.4.1 Organizational Data. CCC has never been a subsidiary of any corporation, partnership, limited liability
company, joint venture or other business entity, other than the CCC Shareholder or other than holdings of nominal amounts of shares by the incorporator(s) of CCC,. Exhibit 3.4 sets forth any interest, direct or indirect, in any corporation, partnership, limited liability company, joint venture or other business entity held by CCC (the \to CCC and each of the CCC Subsidiaries, its exact legal name; the jurisdiction of formation; date of formation; federal employer identification number or equivalent, if such identification number exists; number and type of securities authorized and outstanding; name and address of each security holder; name, address, telephone and fax number of each officer and director or other person having authority with respect to such entity, indicating all current titles held by each individual; its headquarters address, telephone and facsimile numbers; its registered agent and/or office in its jurisdiction of formation (if applicable); all foreign jurisdictions in which it is qualified or registered to do business; the date it was qualified or registered and its registered agent and/or office in each such jurisdiction; all fictitious, assumed or other names of any type that are registered or used by it or under which it has done business; and any name changes, recapitalizations, mergers, reorganization or similar events since its date of formation. Accurate and complete copies of articles or certificate of incorporation, articles of association, memorandum of association, bylaws and other charter documents, each as amended to date, of CCC and each of the CCC Subsidiaries have been provided to DDD LLP, counsel to AAA. Exhibit 3.4 also lists, with respect to CCC and each of the CCC Subsidiaries, each predecessor corporation, partnership, limited liability company, joint venture or other business entity of CCC and of the CCC subsidiary.
3.4.2 Authorization. Each of the CCC Subsidiaries is a corporation duly organized, validly existing and in good
standing under the laws of the jurisdiction of its incorporation, has the corporate power and authority to own, operate and lease its properties and to carry on its business as now conducted and as proposed to be conducted, and is qualified to transact business as a foreign corporation in each jurisdiction in which its qualification as such is required. Exhibit 3.4 lists the material assets, obligations and operations of the CCC Subsidiaries.
3.4.3 Securities. All issued and outstanding shares of stock of the CCC Subsidiaries are validly issued, fully paid
and nonassessable and not subject to preemptive rights and are owned of record and beneficially solely by CCC. The issued and outstanding shares of the CCC Subsidiaries are not subject to any claim, lien, preemptive right, or right of rescission (other than the rights of all companies organized under _________(PLACENAME) company law to repurchase shares), and have been offered, issued, sold, transferred and delivered in compliance with all registration or qualification requirements (or applicable exemptions therefrom) of all applicable securities laws. There are no options, warrants, convertible or other securities, calls, commitments, conversion privileges, preemptive rights or other rights or agreements outstanding to purchase or otherwise acquire (whether directly or indirectly) any shares of any of the authorized but unissued capital stock of any of the CCC Subsidiaries or any
securities convertible into or exchangeable for any shares of capital stock of any of the CCC Subsidiaries or obligating any of the CCC Subsidiaries to grant, issue, extend, or enter into any such option, warrant, convertible or other security, call, commitment, conversion privilege, preemptive right or other right or agreement. No person or entity holds or has any option, warrant or other right to acquire any issued and outstanding shares of the capital stock of any of the CCC Subsidiaries from any holder of shares of the capital stock of such entity. No shares of any of the CCC Subsidiaries are reserved for issuance under any stock purchase, stock option or other benefit plan. There are no voting agreements, voting trusts, rights of first ref_________(PLACENAME)l or other restrictions (other than restrictions on transfer under applicable securities laws) applicable to any of the issued and outstanding securities of any of the CCC Subsidiaries.
3.4.4 Definition of \
expressly provided therein or where the context clearly otherwise requires, any reference made to \Subsidiaries and the predecessors of each.
3.5 No Violation of Existing Agreements. Neither the execution and delivery of this Agreement nor the consummation of
the Exchange or any of the other transactions contemplated hereby, nor the CCC Shareholder's discussion or negotiation with AAA of the Exchange or any other transaction contemplated hereby, will conflict with, or (with or without notice or lapse of time, or both) result in a termination, breach, impairment or violation of: (i) any provision of the memorandum and articles of association of CCC as currently in effect; (ii) any national, provincial or foreign judgment, writ, decree, order, statute, rule or regulation applicable to CCC or its assets or properties; or (iii) any material instrument, agreement (other than the Entrust Agreement), contract, letter of intent or commitment to which CCC is a party or by which CCC or its assets or properties are or were bound, except such conflicts, terminations, breaches, impairments or violations as would not have a Material Adverse Effect. 3.6 Litigation. As of the date hereof, there is no action, suit, arbitration, mediation, proceeding, claim or investigation
pending against CCC (or against any officer or director of CCC or, to the best of the knowledge of CCC and the CCC Shareholder, against any employee or agent of CCC, in their capacity as such or relating to their employment, services or relationship with CCC) before any court, administrative agency or arbitrator that, if determined adversely to CCC (or any such officer, director, employee or agent) may reasonably be expected to have a Material Adverse Effect on CCC, nor, to the best of the CCC Shareholder's knowledge, has any such action, suit, proceeding, arbitration, mediation, claim or investigation been threatened. Except as would not have a Material Adverse Effect, and save for the regulatory approvals required hereunder, there is no basis for any person, firm, corporation or other entity, to assert a claim against CCC or AAA based upon CCC's entering into this Agreement or consummating the Exchange; and there is no basis for any person, firm, corporation or other entity, to assert a claim against CCC based upon (a) any claims of ownership, rights to ownership, or options, warrants or other rights to acquire ownership, of any shares of the capital stock of CCC; or (b) any rights as a CCC
shareholder, including any option, warrant or preemptive rights or rights to notice or to vote. To the knowledge of CCC, there is no judgment, decree, injunction, rule or order of any governmental entity or agency, court or arbitrator outstanding against CCC.
3.7 Taxes. CCC has timely filed all national and foreign tax returns required to be filed, has timely paid or provided for
all taxes required to be paid in respect of all periods for which returns have been filed, has established an adequate accrual or reserve for the payment of all taxes payable in respect of the periods subsequent to the periods covered by the most recent applicable tax returns, has made all necessary estimated tax payments, and has no material
liability for taxes in excess of the amount so paid or accruals or reserves so established. CCC is not delinquent in the payment of any tax or in the filing of any tax returns, and no deficiencies for any tax have been threatened, claimed, proposed or assessed. CCC has not received any notification that any issues have been raised (and are currently pending) by any taxing authority (including but not limited to any franchise, sales or use tax authority) regarding CCC and no tax return of CCC has ever been audited by any _________(PLACENAME) or foreign taxing agency or authority.
For the purposes of this Section, the terms \ENAME) and foreign income, alternative or add on minimum income, gains, franchise, excise, property, sales, use, employment, license, payroll (including any taxes or similar payments required to be withheld from payments of salary or other compensatory payments), ad valorem, payroll, stamp, occupation, recording, value added or transfer taxes, governmental charges, fees, customs duties, levies or assessments (whether payable directly or by withholding), and, with respect to such taxes, any estimated tax, interest and penalties or additions to tax and interest on such penalties and additions to tax.
AAA will not be required to deduct and withhold any amount pursuant to Section 1445(a) of the Internal Revenue Code of 1986, as amended.
3.8 CCC Financial Statements. CCC was incorporated on _________,_________,_________(M/D/Y). CCC's financial
year ends on the last day of February. CCC has delivered to AAA an unaudited balance sheet (the \Balance Sheet\income statement and unaudited cash flow statement, each for the nine months ended
_________,_________,_________(M/D/Y) (such balance sheet, income statement and cash flow statement, collectively, the \_________,_________,_________(M/D/Y)(the \and an audited consolidated cash flow for the financial year ended _________,_________,_________(M/D/Y) (all such Management Accounts and financial statements of CCC are hereinafter collectively referred to as the \Financial Statements\ooks and records of CCC, (b) fairly present the financial condition of CCC at the dates therein indicated and the results of operations for the periods therein specified and (c) have been prepared in accordance with generally accepted accounting principles as applied in _________(PLACENAME) (\ENAME) GAAP\a consistent basis with prior periods. CCC has no material debt, liability or obligation of any nature (whether intercompany or owed to third parties), whether accrued, absolute, contingent or otherwise, and whether due or to become due, except for (i) those shown on the Unaudited Balance Sheet and (ii) those that may have been incurred after the Balance Sheet Date in the ordinary course of CCC's business consistent with past. All reserves established by CCC and set forth in the Unaudited Balance Sheet are reasonably adequate. At the Balance Sheet Date, there were no material contingent liabilities, as such term is used in _________(PLACENAME) GAAP, which are not adequately provided for in the Balance Sheet as required by _________(PLACENAME) GAAP. 3.9 Title to Properties. CCC has good and marketable title to all of its assets (including but not limited to those shown on
the Balance Sheet), free and clear of all liens, mortgages, security interests, claims, charges, restrictions or encumbrances, except where the failure to hold such title would not have a Material Adverse Effect. All machinery, vehicles, equipment and other tangible personal property included in such assets and properties are in good condition and repair, normal wear and tear excepted, and all leases of real or personal property to which CCC is a party are fully effective and afford CCC peaceful and undisturbed possession of the real or personal
property that is the subject of the lease. CCC is not in violation of any zoning, building, safety or environmental ordinance, regulation or requirement or other law or regulation applicable to the operation of owned or leased properties (the violation of which would have a Material Adverse Effect on its business), nor has CCC received any notice of violation with which it has not complied. CCC owns its corporate offices and surrounding land (the \
3.10 Absence of Certain Changes. Since the Balance Sheet Date through the date hereof, there has not been with respect
to CCC any:
(a) material adverse change in the condition (financial or otherwise), properties, assets, liabilities, businesses,
operations, or results of operations of CCC;
(b) amendments or changes in the memorandum and articles of association of CCC;
(c) (i) incurrence, creation or assumption by CCC of any mortgage, security interest, pledge, lien or other
encumbrance on any of the assets or properties of CCC or any material obligation or liability or any indebtedness for borrowed money; or (ii) issuance or sale of, or change with respect to the rights of, any debt or equity securities of CCC or any options or other rights to acquire from CCC, directly or indirectly, any debt or equity securities of CCC;
(d) payment or discharge of a lien or liability which lien or liability was not either shown on the Balance Sheet or
incurred in the ordinary course of business after the Balance Sheet Date;
(e) purchase, license, sale or other disposition, or any agreement or other arrangement for the purchase, license,
sale or other disposition, of any of the assets, properties or goodwill of CCC other than in the ordinary course of its business consistent with its past practice;
(f) damage, destruction or loss, whether or not covered by insurance, having (or likely with the passage of time to
have) a Material Adverse Effect on CCC;
(g) declaration, setting aside or payment of any dividend on, or the making of any other distribution in respect of,
the CCC Stock, any split, combination or recapitalization of the CCC Stock or any direct or indirect redemption, purchase or other acquisition of CCC Stock or any change in any rights, preferences, privileges or restrictions of any issued and outstanding security of CCC;
(h) change or increase in the compensation payable or to become payable to any of the officers, employees,
consultants or agents of CCC, or in any bonus or pension, insurance or other benefit payment or arrangement (including without limitation stock awards, stock appreciation rights or stock option grants) made to or with any of such officers, employees, consultants or agents except in connection with normal salary or performance reviews or otherwise in the ordinary course of business consistent with CCC's past practice;
(i) change with respect to the management, supervisory or other key personnel of CCC;
(j) obligation or liability incurred by CCC to any of its officers, directors or the CCC Shareholder except in the
ordinary course of business consistent with CCC's past practice;
(k) making of any loan, advance or capital contribution to, or any investment in, any officer, director or record or
beneficial shareholder of CCC;
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