Completion. 5.1. Subject to the conditions set out in Clauses 3.1, 3.2 and 3.3, Completion shall take place on the Completion Date. 5.2. The obligations of each of the Parties under Clause 5.3 below are interdependent of each other. The Completion shall not occur unless all of the obligations specified in Clause 5.3, have been simultaneously complied with and are fully effective. 5.3. On the Completion Date: (i) Subject to deductions pursuant to Clause 4.4, the Purchaser shall remit the Purchase Consideration (in immediately available funds) to the Seller’s Bank Account. (ii) The Seller shall (a) provide to its Depository Participant duly executed DP Instructions in the prescribed form for the transfer of the Sale Shares to the Demat Account of the Purchaser (details of which shall be provided to the Seller in writing as soon as practicable after the Execution Date); (b) procure its Depository Participant to duly acknowledge such DP Instructions; (c) deliver a copy of such acknowledgement to the Purchaser; and (d) use best endeavours to procure credit of the Sale Shares to the Demat Account of the Purchaser. (iii) The Seller shall, to the extent it is able to do so through exercise of its voting rights, procure that a Board meeting is held at which the following business shall be transacted: (a) the appointment of directors nominated by the Purchaser on the Board shall be approved; and (b) an extra-ordinary general meeting of the shareholders of the Company to approve the matters set out in Clause 5.3(iii)(a) and the amendment of the Articles of Association shall be convened. 5.4. This Agreement may be terminated on or prior to the Completion Date as follows: (i) By the mutual written consent of the Purchaser and the Seller. (ii) By the Seller, upon written notice to the Purchaser, if the conditions set out in Clauses 3.1 and 3.3 have not been satisfied (or satisfied subject only to Completion where applicable) or waived (where applicable) on or before 270 (two hundred seventy) days from the Execution Date or such later date as may be mutually agreed between the Parties in writing (“Long Stop Date”); provided that the Seller shall not be entitled to terminate this Agreement pursuant to this Clause 5.4(ii) if Seller’s breach of this Agreement has prevented or materially delayed the consummation of the Transactions (which term for the purposes of this Clause 5.4(ii) shall not include the Financing); (iii) By the Purchaser, upon written notice to the Seller, if the conditions set out in Clauses 3.2 and 3.3 have not been satisfied (or satisfied subject only to Completion where applicable) or waived (where applicable) on or before the Long Stop Date; provided that the Purchaser shall not be entitled to terminate this Agreement pursuant to this Clause 5.4(iii) if Purchaser’s breach of this Agreement has prevented or materially delayed the consummation of the Transactions. (iv) By the Seller (if the Seller is not in material breach of the Seller Warranties, covenants or agreements under this Agreement so as to cause any of the conditions set forth in Clause 3.2 and/or 3.3(i) not to be satisfied), upon written notice to the Purchaser, if there has been a material inaccuracy of any statement or warranty, or any unremedied material breach of a covenant or other agreement, of the Purchaser contained in this Agreement, which violation, breach or inaccuracy would cause any of the conditions set forth in Clause 3.1 and/or 3.3 not to be satisfied as of the Completion Date, and such violation, breach or inaccuracy has not been waived by the Seller or cured by the Purchaser within 20 (twenty) Business Days after receipt by the Purchaser of written notice thereof from the Seller or is not reasonably capable of being cured prior to the Long Stop Date. (v) By the Purchaser (if the Purchaser is not in material breach of the Purchaser Warranties, covenants or agreements under this Agreement so as to cause any of the conditions set forth in Clause 3.1 and/or 3.3 not to be satisfied), upon written notice to the Seller, if there has been a material inaccuracy of any statement or warranty, or any unremedied material breach of a covenant or other agreement, of the Seller contained in this Agreement, which violation, breach or inaccuracy would cause any of the conditions set forth in Clauses 3.2 and/or 3.3(i) not to be satisfied as of the Completion Date, and such violation, breach or inaccuracy has not been waived by the Purchaser or cured by the Seller within 20 (twenty) Business Days after receipt by the Seller of written notice thereof from the Purchaser or is not reasonably capable of being cured prior to the Long Stop Date. (vi) By the Seller or the Purchaser, upon written notice to the other, if a court of competent jurisdiction or any other Governmental Authority shall have issued a final, non-appealable order preventing or otherwise prohibiting the consummation of the Transactions. 5.5. If this Agreement is terminated prior to Completion in accordance with Clause 5.4 above, (i) this Agreement shall become void and of no further force and effect; provided, however, that the provisions of this Clause 5.5 and Clauses 1 (Definitions and Interpretation), 11 (Announcements and Confidentiality), 12 (Notices), 13 (Governing Law, Disputes and Jurisdiction), 14.1 (Entire Agreement), 14.6 (Variation), 14.7 (No Assignment), 14.8 (Waiver), 14.9 (Severability), 14.10 (Supersession) and 14.11 (Expenses) shall survive the termination of this Agreement indefinitely and that nothing herein shall relieve any Party from any liability for fraud or any breach of the provisions of this Agreement prior to such termination; and (ii) if applicable, the Observer shall no longer be entitled to attend the meetings of the Board (or any committee thereof) and the nominees of the Purchaser appointed on the Board in accordance with Clause 6.2 shall resign with immediate effect.
Appears in 4 contracts
Sources: Share Purchase Agreement, Share Purchase Agreement (General Atlantic LLC), Share Purchase Agreement (Patni Computer Systems LTD)
Completion. 5.1. Subject to the conditions set out in Clauses 3.1, 3.2 and 3.3Completion Conditions having been satisfied or waived by the [Investors], Completion shall take place on the Completion Date.
5.2Date once the events set out in clause 4.2 have occurred. The obligations of At Completion the following events shall occur: each Investor shall pay the sum set out against its name in column 3 of the Parties under Clause 5.3 below are interdependent of each other. The Completion shall not occur unless all table in clause 3.1 (being the aggregate subscription price for the [First Tranche Shares] [New Shares] [Note: amend as appropriate]) [less any fees and disbursements referred to in clause 17.1] by electronic funds transfer to the bank account of the obligations specified [Company] [Company’s Solicitors] [Note: amend as appropriate] as set out below and payment made in Clause 5.3, have been simultaneously complied accordance with and are fully effective.
5.3. On the Completion Date:
(i) Subject to deductions pursuant to Clause 4.4, the Purchaser this clause 4.2 shall remit the Purchase Consideration (in immediately available funds) to the Seller’s Bank Account.
(ii) The Seller shall (a) provide to its Depository Participant duly executed DP Instructions in the prescribed form constitute a good discharge for the transfer Investor of its obligations under this clause 4.2: Account name : [ ] Bank : [ ] Account number : [ ] Sort code : [ ] IBAN : [ ] Swift Code : [ ] a meeting of the Sale Shares to the Demat Account of the Purchaser (details of which Board shall be provided to the Seller in writing as soon as practicable after the Execution Date); (b) procure its Depository Participant to duly acknowledge such DP Instructions; (c) deliver a copy of such acknowledgement to the Purchaser; and (d) use best endeavours to procure credit of the Sale Shares to the Demat Account of the Purchaser.
(iii) The Seller shall, to the extent it is able to do so through exercise of its voting rights, procure that a Board meeting is held at which the following business Company shall: issue the [First Tranche Shares] [New Shares] [Note: amend as appropriate] credited as fully paid to the Investors and enter their names in the register of members in respect thereof; execute and deliver to the Investors certificates for the [First Tranche Shares] [New Shares]; [Note: amend as appropriate] [accept the resignations of each of [●] and [●] as directors of the Company;] appoint [●] and [●] as Investor Directors; [and] [approve and authorise the execution by the Company of the Service Agreements]; [and] pass any such other resolutions as may be required to carry out the obligations of the Company under this agreement. [the Company and each of the Founders shall be transacted:
enter into the Service Agreements.] [Subject to (a) the appointment of directors nominated Milestones having been satisfied or waived by [the Investors] [an Investor Majority] by the Purchaser on Milestone Date (the Board shall be approved; and
“Milestone Determination”) and (b) the remaining Second Completion Conditions having been satisfied or waived by [the Investors] [an extra-ordinary general meeting of Investor Majority], Second Completion shall take place on the shareholders of Second Completion Date once the Company to approve the matters events set out in Clause 5.3(iii)(a) clause 4.6 have occurred. [For the avoidance of doubt, if an Investor Majority has determined that the Second Completion Conditions have been satisfied or waived, all Investors shall be obliged to subscribe simultaneously for their respective Second Tranche Shares on the Second Completion Date and the amendment provisions of the Articles of Association clauses 4.3 to 4.7 (inclusive) shall be convenedapply equally to all Investors.
5.4. This Agreement ] [Notwithstanding clause 4.3, each Investor may be terminated on or prior to the Completion Date as follows:
at its option (i) By the mutual written consent of the Purchaser and the Seller.
(ii) By the Seller, upon by written notice to the Purchaser, if Company copied to each other Investor) require the conditions set out in Clauses 3.1 and 3.3 have not been satisfied (or satisfied subject only Company at any time prior to Completion where applicable) or waived (where applicable) on or before 270 (two hundred seventy) days from the Execution Milestone Date or such later date as may be mutually agreed between the Parties in writing (“Long Stop Date”); provided that the Seller shall not be entitled to terminate this Agreement pursuant to this Clause 5.4(ii) if Seller’s breach of this Agreement has prevented or materially delayed the consummation accept its subscription for its allocation of the Transactions Second Tranche Shares irrespective of whether the Second Completion Conditions have been satisfied, in which event the Founders (which term in so far as they are legally able to do so) and the Company shall effect Second Completion for that Investor on the purposes date so specified by that Investor, and the requirements of this Clause 5.4(ii) clause 4.6 shall not include the Financing);
(iii) By the Purchaser, upon written notice to the Seller, if the conditions set out apply in Clauses 3.2 and 3.3 have not been satisfied (or satisfied subject only to Completion where applicable) or waived (where applicable) on or before the Long Stop Date; provided respect of that the Purchaser shall not be entitled to terminate this Agreement pursuant to this Clause 5.4(iii) if Purchaser’s breach of this Agreement has prevented or materially delayed the consummation Investor for such Second Completion.] Each of the Transactions.
(iv) By Company and the Seller (if Founders shall notify the Seller Investors as soon as it or they become aware of any fact or circumstance which has caused or will or is not in material breach of the Seller Warranties, covenants or agreements under this Agreement so as likely to cause any of the conditions set forth in Clause 3.2 and/or 3.3(i) Second Completion Conditions not to be satisfied. At Second Completion the following events shall occur: each Investor shall pay the sum listed against its name in column 3 of the table set out in clause 3.2 (being the subscription price for the Second Tranche Shares subscribed by each Investor) by electronic funds transfer to the bank account of the [Company] [Company’s Solicitors] [Note: amend as appropriate] and payment made in accordance with this clause 4.6 shall constitute a good discharge for each Investor of its obligations under clauses 4.3 to 4.7 (inclusive); a meeting of the Board shall be held at which the Company shall: issue the Second Tranche Shares credited as fully paid to the Investors and enter their names in the register of members in respect thereof; execute and deliver to the Investors certificates for the Second Tranche Shares; and pass any such other resolutions as may be required to issue the Second Tranche Shares. [If an Investor does not subscribe for its Second Tranche Shares (the "Surplus Shares") on the Second Completion Date in accordance with the requirements of clauses 4.3 and 4.6 or under clause 4.4 (a "Defaulting Investor") (the date of such default being the "Default Date"), then the following shall apply: Each of the Investors (other than the Defaulting Investor) shall have the right (but not the obligation) within [30 days] of the Default Date to subscribe for the Surplus Shares pro rata to its participation in Second Completion (excluding the Defaulting Investor) and shall be entitled (but not required), with the consent of the other such Investors, within this period to subscribe for any excess Surplus Shares if any of the other Investors do not wish to subscribe for their pro rata amount of Surplus Shares, which excess Surplus Shares shall be apportioned in the amounts so subscribed, unless there are insufficient excess Surplus Shares to satisfy all such subscriptions, in which case such excess Surplus Shares shall be allotted to those subscribing Investors pro rata to the participation in Second Completion by those subscribing Investors which procedure shall be repeated until all Surplus Shares have been allocated but no allocation shall be made for more than the amounts that have been so subscribed. [In addition to and without prejudice to all other rights and remedies available to the parties, including without limitation the right to bring a claim for breach of contract, a Defaulting Investor shall be deemed (unless the Company and the Investor Majority (which shall not include the Defaulting Investor) have determined that this clause will not apply), upon the Default Date, to have served an irrevocable and unconditional written notice to the Purchaser, if there has been a material inaccuracy of any statement or warranty, or any unremedied material breach of a covenant or other agreement, Company of the Purchaser contained in this Agreement, which violation, breach or inaccuracy would cause any conversion of the conditions set forth in Clause 3.1 and/or 3.3 not to be satisfied as all of the Completion Date, and such violation, breach or inaccuracy has not been waived by the Seller or cured by the Purchaser within 20 (twenty) Business Days after receipt by the Purchaser its holdings of written notice thereof from the Seller or is not reasonably capable of being cured prior to the Long Stop Date.
(v) By the Purchaser (if the Purchaser is not in material breach of the Purchaser Warranties, covenants or agreements under this Agreement so as to cause any of the conditions set forth in Clause 3.1 and/or 3.3 not to be satisfied), upon written notice to the Seller, if there has been a material inaccuracy of any statement or warranty, or any unremedied material breach of a covenant or other agreement, of the Seller contained in this Agreement, which violation, breach or inaccuracy would cause any of the conditions set forth in Clauses 3.2 and/or 3.3(i) not to be satisfied as of the Completion Date, and such violation, breach or inaccuracy has not been waived by the Purchaser or cured by the Seller within 20 (twenty) Business Days after receipt by the Seller of written notice thereof from the Purchaser or is not reasonably capable of being cured prior to the Long Stop Date.
(vi) By the Seller or the Purchaser, upon written notice to the other, if a court of competent jurisdiction or any other Governmental Authority shall have issued a final, non-appealable order preventing or otherwise prohibiting the consummation of the Transactions.
5.5. If this Agreement is terminated prior to Completion Series A Shares into Ordinary Shares in accordance with Clause 5.4 above,
(i) this Agreement shall become void and of no further force and effect; provided, however, that the provisions of this Clause 5.5 and Clauses 1 (Definitions and Interpretation), 11 (Announcements and Confidentiality), 12 (Notices), 13 (Governing Law, Disputes and Jurisdiction), 14.1 (Entire Agreement), 14.6 (Variation), 14.7 (No Assignment), 14.8 (Waiver), 14.9 (Severability), 14.10 (Supersession) and 14.11 (Expenses) shall survive the termination of this Agreement indefinitely and that nothing herein shall relieve any Party from any liability for fraud or any breach article [9.1] of the provisions of this Agreement prior New Articles and shall be required to such termination; and
(ii) if applicable, comply with the Observer shall no longer be entitled to attend requirements set out in article [9] the meetings New Articles in respect of the Board (or any committee thereof) and the nominees conversion of the Purchaser appointed on the Board in accordance with Clause 6.2 shall resign with immediate effectsuch shares.] [Note: see drafting note.]
Appears in 3 contracts
Sources: Subscription and Shareholders' Agreement, Subscription and Shareholders' Agreement, Subscription and Shareholders' Agreement
Completion. 5.1. Subject to the conditions set out in Clauses 3.1, 3.2 and 3.3, Completion shall take place on the Completion Date.
5.2. The obligations of each of the Parties under Clause 5.3 below are interdependent of each other. The Completion shall not occur unless all of the obligations specified in Clause 5.3, have been simultaneously complied with and are fully effective.
5.3. On the Completion Date:
(i) Subject to deductions pursuant to Clause 4.4, the The Purchaser shall remit the Purchase Consideration (in immediately available funds) to the Seller’s Bank Account.
(ii) The Seller shall (aexecute an instrument of transfer in respect of the Sale ADSs to the Purchaser as contemplated by Section 2.04 of the Deposit Agreement, deliver it to the Purchaser together with the depositary receipt(s) provide representing the Sale ADSs, and instruct the Depositary to its Depository Participant duly executed DP Instructions in the prescribed form for register the transfer of the Sale Shares to ADSs in the Demat Account of the Purchaser (details of which shall be provided to the Seller in writing as soon as practicable after the Execution Date); (b) procure its Depository Participant to duly acknowledge such DP Instructions; (c) deliver a copy of such acknowledgement to the Purchaser; and (d) use best endeavours to procure credit of the Sale Shares to the Demat Account name of the Purchaser.
(iii) The Seller shall, to the extent it is able to do so through exercise of its voting rights, the Seller shall also procure that a Board meeting is held at which the following business shall be transacted:
(a) the appointment of directors nominated by the Purchaser on the Board shall be approved; and
(b) an extra-ordinary general meeting of the shareholders of the Company to approve the matters set out in Clause 5.3(iii)(a) and the amendment of the Articles of Association shall be convened.
5.4. This Agreement may be terminated on or prior to the Completion Date as follows:
(i) By the mutual written consent of the Purchaser and the Seller.
(ii) By the Seller, upon written notice to the Purchaser, if the conditions set out in Clauses 3.1 and 3.3 have not been satisfied (or satisfied subject only to Completion where applicable) or waived (where applicable) on or before 270 (two hundred seventy) days from the Execution Date or such later date as may be mutually agreed between the Parties in writing (“Long Stop Date”); provided that the Seller shall not be entitled to terminate this Agreement pursuant to this Clause 5.4(ii) if Seller’s breach of this Agreement has prevented or materially delayed the consummation of the Transactions (which term for the purposes of this Clause 5.4(ii) shall not include the Financing);
(iii) By the Purchaser, upon written notice to the Seller, if the conditions set out in Clauses 3.2 and 3.3 have not been satisfied (or satisfied subject only to Completion where applicable) or waived (where applicable) on or before the Long Stop Date; provided that the Purchaser shall not be entitled to terminate this Agreement pursuant to this Clause 5.4(iii) if Purchaser’s breach of this Agreement has prevented or materially delayed the consummation of the Transactions.
(iv) By the Seller (if the Seller is not in material breach of the Seller Warranties, covenants or agreements under this Agreement so as to cause any of the conditions set forth in Clause 3.2 and/or 3.3(i) not to be satisfied), upon written notice to the Purchaser, if there has been a material inaccuracy of any statement or warranty, or any unremedied material breach of a covenant or other agreement, of the Purchaser contained in this Agreement, which violation, breach or inaccuracy would cause any of the conditions set forth in Clause 3.1 and/or 3.3 not to be satisfied as of the Completion Date, and such violation, breach or inaccuracy has not been waived by the Seller or cured by the Purchaser within 20 (twenty) Business Days after receipt by the Purchaser of written notice thereof from the Seller or is not reasonably capable of being cured prior to the Long Stop Date.
(v) By the Purchaser (if the Purchaser is not in material breach of the Purchaser Warranties, covenants or agreements under this Agreement so as to cause any of the conditions set forth in Clause 3.1 and/or 3.3 not to be satisfied), upon written notice to the Seller, if there has been a material inaccuracy of any statement or warranty, or any unremedied material breach of a covenant or other agreement, of the Seller contained in this Agreement, which violation, breach or inaccuracy would cause any of the conditions set forth in Clauses 3.2 and/or 3.3(i) not to be satisfied as of the Completion Date, and such violation, breach or inaccuracy has not been waived by the Purchaser or cured by the Seller within 20 (twenty) Business Days after receipt by the Seller of written notice thereof from the Purchaser or is not reasonably capable of being cured prior to the Long Stop Date.
(vi) By the Seller or the Purchaser, upon written notice to the other, if a court of competent jurisdiction or any other Governmental Authority shall have issued a final, non-appealable order preventing or otherwise prohibiting the consummation of the Transactions.
5.5. If this Agreement is terminated prior to Completion in accordance with Clause 5.4 above,
(i) this Agreement shall become void and of no further force and effect; provided, however, that the provisions of this Clause 5.5 and Clauses 1 (Definitions and Interpretation), 11 (Announcements and Confidentiality), 12 (Notices), 13 (Governing Law, Disputes and Jurisdiction), 14.1 (Entire Agreement), 14.6 (Variation), 14.7 (No Assignment), 14.8 (Waiver), 14.9 (Severability), 14.10 (Supersession) and 14.11 (Expenses) shall survive the termination of this Agreement indefinitely and that nothing herein shall relieve any Party from any liability for fraud or any breach of the provisions of this Agreement prior to such termination; and
(ii) if applicable, the Observer shall no longer be entitled to attend the meetings of the Board (or any committee thereof) and the nominees of the Purchaser appointed on the Board in accordance with Clause 6.2 shall resign with immediate effect.
Appears in 3 contracts
Sources: Securities Purchase Agreement (Patni Computer Systems LTD), Securities Purchase Agreement (General Atlantic LLC), Securities Purchase Agreement (Igate Corp)
Completion. 5.1. 5.1 Subject to the conditions set out in Clauses 3.1, 3.2 and 3.3Clause 3, Completion shall take place on the Completion Date.
5.2. The obligations of each Date at the office of the Company (or at such other place as the Parties under Clause 5.3 below are interdependent of each other. The Completion shall not occur unless may agree) where all of the obligations specified in Clause 5.3, have been simultaneously complied with and are fully effectiveevents described below shall occur.
5.3. 5.2 On Completion, the Completion DateVendors shall deliver to the Purchaser:
5.2.1 the share certificates in respect of the Sale Shares, together with valid share transfer forms in respect of the Sale Shares, duly executed by the Vendors in favour of the Purchaser;
5.2.2 a certified true copy of the resolutions passed by the board of directors of the Company:
(i) Subject to deductions pursuant to Clause 4.4, the Purchaser shall remit the Purchase Consideration (in immediately available funds) to the Seller’s Bank Account.
(ii) The Seller shall (a) provide to its Depository Participant duly executed DP Instructions in the prescribed form for approving the transfer of the Sale Shares to the Demat Account of the Purchaser (details of which shall be provided Purchaser, subject only to the Seller in writing as soon as practicable after the Execution Date); instrument of transfer being duly stamped;
(b) procure its Depository Participant to duly acknowledge such DP Instructions; (c) deliver a copy authorising the issue of such acknowledgement to the Purchaser; and (d) use best endeavours to procure credit new share certificate in respect of the Sale Shares in favour of the Purchaser;
(c) approving the lodgement of a notice of transfer of the Sale Shares with ACRA and the making of such entries into the corporate records of the Company as may be necessary; and
(d) approving the appointment of up to two individuals which may be nominated by the Purchase as directors of the Company, with effect from the Completion Date;
5.2.3 such waivers or consents as may be necessary, including but not limited to waivers of pre-emption rights in respect of the Sale Shares, to enable the Purchaser to be registered as holder of any and all of the Sale Shares;
5.2.4 the Service Agreements, duly executed by each of the Vendors and the relevant Group Company; and
5.2.5 the Shareholders Agreement, duly executed by each of the Vendors and the Company.
5.3 On Completion and against compliance with the provisions of Clause 5.2, the Purchaser shall deliver:
5.3.1 the Completion Payment to the Demat Account Vendors by way of cheques drawn on a bank licensed in Singapore and made out in favour of each of the Vendors, or in such other manner as may be agreed between the Vendors and the Purchaser in writing; and
5.3.2 the Shareholders Agreement, duly executed by the Purchaser.
5.4 Without prejudice to any other remedies available, if in any respect the provisions of this Clause 5 are not complied with by any Party on the Completion Date, the Party not in default may:
5.4.1 defer Completion to a date not more than 28 days after the Completion Date (iii) The Seller shall, and so that the provisions of this Clause shall apply to Completion as so deferred);
5.4.2 effect Completion so far as practicable having regard to the extent it is able defaults which have occurred (without prejudice to do so through exercise their rights hereunder); or
5.4.3 rescind this Agreement provided that the Surviving Clauses shall survive the termination of its voting rights, procure that a Board meeting is held at which this Agreement. For the following business shall be transactedavoidance of doubt:
(a) in the appointment of directors nominated by event that the Purchaser on Vendors are the Board Parties in default, the Vendors shall be approvedrefund the deposit sum referred to in Clause 4.1.1 forthwith to the Purchaser; and
(b) an extra-ordinary general meeting of in the shareholders of the Company to approve the matters set out in Clause 5.3(iii)(a) and the amendment of the Articles of Association shall be convened.
5.4. This Agreement may be terminated on or prior to the Completion Date as follows:
(i) By the mutual written consent of event that the Purchaser and or YY Group is the Seller.
(ii) By Party in default, the Seller, upon written notice to the Purchaser, if the conditions set out in Clauses 3.1 and 3.3 have not been satisfied (or satisfied subject only to Completion where applicable) or waived (where applicable) on or before 270 (two hundred seventy) days from the Execution Date or such later date as may be mutually agreed between the Parties in writing (“Long Stop Date”); provided that the Seller Vendors shall not be entitled required to terminate this Agreement pursuant refund the deposit sum referred to this Clause 5.4(ii) if Seller’s breach of this Agreement has prevented or materially delayed the consummation of the Transactions (which term for the purposes of this Clause 5.4(ii) shall not include the Financing);
(iii) By the Purchaser, upon written notice to the Seller, if the conditions set out in Clauses 3.2 and 3.3 have not been satisfied (or satisfied subject only to Completion where applicable) or waived (where applicable) on or before the Long Stop Date; provided that the Purchaser shall not be entitled to terminate this Agreement pursuant to this Clause 5.4(iii) if Purchaser’s breach of this Agreement has prevented or materially delayed the consummation of the Transactions.
(iv) By the Seller (if the Seller is not in material breach of the Seller Warranties, covenants or agreements under this Agreement so as to cause any of the conditions set forth in Clause 3.2 and/or 3.3(i) not to be satisfied), upon written notice to the Purchaser, if there has been a material inaccuracy of any statement or warranty, or any unremedied material breach of a covenant or other agreement, of the Purchaser contained in this Agreement, which violation, breach or inaccuracy would cause any of the conditions set forth in Clause 3.1 and/or 3.3 not to be satisfied as of the Completion Date, and such violation, breach or inaccuracy has not been waived by the Seller or cured by the Purchaser within 20 (twenty) Business Days after receipt by the Purchaser of written notice thereof from the Seller or is not reasonably capable of being cured prior to the Long Stop Date4.1.1.
(v) By the Purchaser (if the Purchaser is not in material breach of the Purchaser Warranties, covenants or agreements under this Agreement so as to cause any of the conditions set forth in Clause 3.1 and/or 3.3 not to be satisfied), upon written notice to the Seller, if there has been a material inaccuracy of any statement or warranty, or any unremedied material breach of a covenant or other agreement, of the Seller contained in this Agreement, which violation, breach or inaccuracy would cause any of the conditions set forth in Clauses 3.2 and/or 3.3(i) not to be satisfied as of the Completion Date, and such violation, breach or inaccuracy has not been waived by the Purchaser or cured by the Seller within 20 (twenty) Business Days after receipt by the Seller of written notice thereof from the Purchaser or is not reasonably capable of being cured prior to the Long Stop Date.
(vi) By the Seller or the Purchaser, upon written notice to the other, if a court of competent jurisdiction or any other Governmental Authority shall have issued a final, non-appealable order preventing or otherwise prohibiting the consummation of the Transactions.
5.5. If this Agreement is terminated prior to Completion in accordance with Clause 5.4 above,
(i) this Agreement shall become void and of no further force and effect; provided, however, that the provisions of this Clause 5.5 and Clauses 1 (Definitions and Interpretation), 11 (Announcements and Confidentiality), 12 (Notices), 13 (Governing Law, Disputes and Jurisdiction), 14.1 (Entire Agreement), 14.6 (Variation), 14.7 (No Assignment), 14.8 (Waiver), 14.9 (Severability), 14.10 (Supersession) and 14.11 (Expenses) shall survive the termination of this Agreement indefinitely and that nothing herein shall relieve any Party from any liability for fraud or any breach of the provisions of this Agreement prior to such termination; and
(ii) if applicable, the Observer shall no longer be entitled to attend the meetings of the Board (or any committee thereof) and the nominees of the Purchaser appointed on the Board in accordance with Clause 6.2 shall resign with immediate effect.
Appears in 3 contracts
Sources: Sale and Purchase Agreement (YY Group Holding Ltd.), Sale and Purchase Agreement (YY Group Holding Ltd.), Sale and Purchase Agreement (YY Group Holding Ltd.)
Completion. 5.1. 4.1 Subject to the conditions relevant Conditions Precedent being satisfied or waived, on the relevant Completion Date, (i) the Investor shall transfer Instalment 1 or Instalment 2 (as applicable) to QIWI in accordance with and subject to the terms of this Agreement and with those implied covenants set out in Clauses 3.1, 3.2 and 3.3, Completion shall take place on the Completion Date.
5.2. The obligations of each Part 1 of the Parties under Clause 5.3 below are interdependent U.K. Law of each other. The Completion shall not occur unless all of the obligations specified in Clause 5.3Property Miscellaneous Provisions Act 1994 where a disposition is expressed to be made with full title guarantee, have been simultaneously complied with and are fully effective.
5.3. On the Completion Date:
(i) Subject to deductions pursuant to Clause 4.4, the Purchaser shall remit the Purchase Consideration (in immediately available funds) to the Seller’s Bank Account.
(ii) The Seller QIWI shall issue the Subscription Shares 1 or Subscription Shares 2 (aas applicable) provide with full title guarantee, fully paid, free from all Encumbrances and ranking pari passu with other Shares in QIWI and with all the rights attaching to its Depository Participant duly executed DP Instructions in them under the prescribed form for Articles.
4.2 Pursuant to clause 4.1, the transfer of the Sale Shares to the Demat Account of the Purchaser (details of which Completion shall be provided to the Seller in writing as soon as practicable after the Execution Date); (b) procure its Depository Participant to duly acknowledge such DP Instructions; (c) deliver a copy of such acknowledgement to the Purchaser; and (d) use best endeavours to procure credit of the Sale Shares to the Demat Account of the Purchaser.
(iii) The Seller shall, to the extent it is able to do so through exercise of its voting rights, procure that a Board meeting is held at which the following business shall be transacted:
(a) the appointment of directors nominated by the Purchaser on the Board shall be approved; and
(b) an extra-ordinary general meeting of the shareholders of the Company to approve the matters set out in Clause 5.3(iii)(a) and the amendment of the Articles of Association shall be convened.
5.4. This Agreement may be terminated on or prior to the Completion Date arranged as follows:
(i) By 4.2.1 on Completion Date 1, QIWI shall issue and allot to the mutual written consent Investor the Subscription Shares 1, and in consideration of the Purchaser issue and allotment of the Subscription Shares 1 the Investor shall transfer to QIWI Installment 1 as a contribution in kind (the Completion 1) pursuant to Transfer Agreement 1; and
4.2.2 on Completion Date 2, QIWI shall issue and allot to the Investor the Subscription Shares 2, and in consideration of the issue and allotment of the Subscription Shares 2 the Investor shall transfer to QIWI Installment 2 as a contribution in kind (the Completion 2) pursuant to Transfer Agreement 2.
4.3 Each of Completion 1 and Completion 2 shall take place simultaneously at the offices of QIWI in Nicosia, Cyprus and the Selleroffices of the Notary in Moscow, Russia or at such other place as the Investor and QIWI may agree.
4.4 On each Completion Date the Parties shall observe, deliver or perform (iior ensure that there is observed, delivered or performed) By all those documents, items and actions respectively listed in relation to that Party in Schedule 2.
4.5 No Party shall be obliged to continue to Completion 1 or Completion 2, as the Sellercase may be, upon written unless the other Party complies fully with the respective provisions of clause 4 and Schedule 2.
4.6 If either Party fails to comply with its respective obligations under clause 4 above in any respect, the other Party may, without prejudice to any other rights it may have, elect by notice to the Purchaser, if the conditions set out in Clauses 3.1 and 3.3 have not been satisfied (or satisfied subject only other Party to Completion where applicable) or waived (where applicable) on or before 270 (two hundred seventy) days from the Execution Date or such later date as may be mutually agreed between the Parties in writing (“Long Stop Date”); provided that the Seller shall not be entitled to terminate this Agreement pursuant to this Clause 5.4(ii) if Seller’s breach of this Agreement has prevented or materially delayed the consummation of the Transactions (which term for the purposes of this Clause 5.4(ii) shall not include the Financing);
(iii) By the Purchaser, upon written notice to the Seller, if the conditions set out in Clauses 3.2 and 3.3 have not been satisfied (or satisfied subject only to Completion where applicable) or waived (where applicable) on or before the Long Stop Date; provided that the Purchaser shall not be entitled to terminate this Agreement pursuant to this Clause 5.4(iii) if Purchaser’s breach of this Agreement has prevented or materially delayed the consummation of the Transactions.
(iv) By the Seller (if the Seller is not in material breach of the Seller Warranties, covenants or agreements under this Agreement so as to cause any of the conditions set forth in Clause 3.2 and/or 3.3(i) not to be satisfied), upon written notice to the Purchaser, if there has been a material inaccuracy of any statement or warranty, or any unremedied material breach of a covenant or other agreement, of the Purchaser contained in this Agreement, which violation, breach or inaccuracy would cause any of the conditions set forth in Clause 3.1 and/or 3.3 not to be satisfied as of defer the Completion Date1 or Completion 2, and such violationas the case may be, breach or inaccuracy has to a date being not been waived by the Seller or cured by the Purchaser within 20 more than 15 (twentyfifteen) Business Days after receipt by the Purchaser of written notice thereof from the Seller or is not reasonably capable of being cured prior to the Long Stop Date.
(v) By the Purchaser (if the Purchaser is not in material breach of the Purchaser Warranties, covenants or agreements under this Agreement so as to cause any of the conditions set forth in Clause 3.1 and/or 3.3 not to be satisfied), upon written notice to the Seller, if there has been a material inaccuracy of any statement or warranty, or any unremedied material breach of a covenant or other agreement, of the Seller contained in this Agreement, which violation, breach or inaccuracy would cause any of the conditions set forth in Clauses 3.2 and/or 3.3(i) not to be satisfied as of the Completion Date, and such violation, breach or inaccuracy has not been waived by the Purchaser or cured by the Seller within 20 (twenty) Business Days after receipt by the Seller of written notice thereof from the Purchaser or is not reasonably capable of being cured prior to the Long Stop Date.
(vi) By the Seller Date 1 or the Purchaser, upon written notice to the other, if a court of competent jurisdiction or any other Governmental Authority shall Completion Date 2 would otherwise have issued a final, non-appealable order preventing or otherwise prohibiting the consummation of the Transactionstaken place.
5.5. If this Agreement is terminated prior to Completion in accordance with Clause 5.4 above,
(i) this Agreement shall become void and of no further force and effect; provided, however, that the provisions of this Clause 5.5 and Clauses 1 (Definitions and Interpretation), 11 (Announcements and Confidentiality), 12 (Notices), 13 (Governing Law, Disputes and Jurisdiction), 14.1 (Entire Agreement), 14.6 (Variation), 14.7 (No Assignment), 14.8 (Waiver), 14.9 (Severability), 14.10 (Supersession) and 14.11 (Expenses) shall survive the termination of this Agreement indefinitely and that nothing herein shall relieve any Party from any liability for fraud or any breach of the provisions of this Agreement prior to such termination; and
(ii) if applicable, the Observer shall no longer be entitled to attend the meetings of the Board (or any committee thereof) and the nominees of the Purchaser appointed on the Board in accordance with Clause 6.2 shall resign with immediate effect.
Appears in 3 contracts
Sources: Deed of Subscription (Otkritie Investments Cyprus LTD), Deed of Subscription (Qiwi), Deed of Subscription (Otkritie Investments Cyprus LTD)
Completion. 5.1. Subject to the conditions set out in Clauses 3.1, 3.2 and 3.3, 4.1 Completion shall take place on not later than 15 April 2021 (or such later date as the Parties may agree in writing) (“Completion Date”) and at such place as the Parties may agree when all (but not some only) of the events described in this Clause 4 shall occur.
5.2. The obligations of each of the Parties under Clause 5.3 below are interdependent of each other. The Completion shall not occur unless all of the obligations specified in Clause 5.3, have been simultaneously complied with and are fully effective.
5.3. On the Completion Date:
(i) Subject to deductions pursuant to Clause 4.4, the Purchaser shall remit the Purchase Consideration (in immediately available funds) to the Seller’s Bank Account.
(ii) The Seller shall (a) provide to its Depository Participant duly executed DP Instructions in the prescribed form for the transfer of the Sale Shares to the Demat Account of the Purchaser (details of which shall be provided to the Seller in writing as soon as practicable after the Execution Date); (b) procure its Depository Participant to duly acknowledge such DP Instructions; (c) deliver a copy of such acknowledgement to the Purchaser; and (d) use best endeavours to procure credit of the Sale Shares to the Demat Account of the Purchaser.
(iii) The Seller 4.2 Company shall, to the extent it is able to do so through exercise of its voting rights, procure that a Board meeting is held at which the following business shall be transacted:
(a) Allot and issue all the appointment of directors nominated by the Purchaser on the Board shall be approvedSubscription Shares credited as fully paid; and
(b) an extra-ordinary general meeting of the shareholders of the Company to approve the matters set out in Clause 5.3(iii)(a) and the amendment of the Articles of Association shall be convened.
5.4. This Agreement may be terminated on or prior deliver to the Completion Date as followsSubscriber:
(i) By the mutual written consent a certified true copy of the Purchaser resolutions of the Board approving and authorising the execution and completion and performance of the transactions contemplated under this Agreement and the Seller.issue of the Subscription Shares credited as fully paid to the Subscriber;
(ii) By a certified true copy of the Seller, upon written notice resolution of the Shareholders approving and authorising the directors of the Company to take all other steps required by the Company to allot and issue the Subscription Shares to the Purchaser, if the conditions set out in Clauses 3.1 and 3.3 have not been satisfied (or satisfied subject only to Completion where applicable) or waived (where applicable) on or before 270 (two hundred seventy) days from the Execution Date or such later date as may be mutually agreed between the Parties in writing (“Long Stop Date”); provided that the Seller shall not be entitled to terminate this Agreement Subscriber pursuant to this Clause 5.4(ii) if Seller’s breach of this Agreement has prevented or materially delayed the consummation of the Transactions (which term for the purposes of this Clause 5.4(ii) shall not include the Financing)Agreement;
(iii) By a certified true copy each of the Purchaserresolutions of the Board and Shareholders respectively, upon written notice approving and authorising the issue of [*****] ordinary shares of [*****] each or the Subscription Shares at the Subscription Price, whichever applicable and pursuant to the Seller, if the conditions set out in Clauses 3.2 and 3.3 have not been satisfied (or satisfied subject only to Completion where applicable) or waived (where applicable) on or before the Long Stop Date; provided that the Purchaser shall not be entitled to terminate this Subscription Agreement pursuant to this Clause 5.4(iii) if Purchaser’s breach of this Agreement has prevented or materially delayed the consummation of the Transactions.herein;
(iv) By a duly issued share certificate in the Seller (if the Seller is not in material breach name of the Seller Warranties, covenants or agreements under this Agreement so as to cause any Subscriber in respect of the conditions set forth in Clause 3.2 and/or 3.3(i) not to be satisfied), upon written notice to the Purchaser, if there has been a material inaccuracy of any statement or warranty, or any unremedied material breach of a covenant or other agreement, of the Purchaser contained in this Agreement, which violation, breach or inaccuracy would cause any of the conditions set forth in Clause 3.1 and/or 3.3 not to be satisfied as of the Completion Date, and such violation, breach or inaccuracy has not been waived by the Seller or cured by the Purchaser within 20 (twenty) Business Days after receipt by the Purchaser of written notice thereof from the Seller or is not reasonably capable of being cured prior to the Long Stop Date.Subscription Shares;
(v) By the Purchaser (if the Purchaser is not in material breach consents and waivers of the Purchaser Warranties, covenants or agreements under this Agreement so as to cause any Existing Shareholders of the conditions set forth Company of all rights of pre-emption and other rights which they may have in Clause 3.1 and/or 3.3 not to be satisfied), upon written notice to the Seller, if there has been a material inaccuracy of any statement or warranty, or any unremedied material breach of a covenant or other agreement, respect of the Seller contained issue of the Subscription Shares and other matters contemplated in this Agreement, which violation, breach or inaccuracy would cause any ;
(d) enter the name of the conditions set forth Subscriber in Clauses 3.2 and/or 3.3(i) not to be satisfied as the register of members of the Completion DateCompany as the holder of the Subscription Shares.
4.3 At Completion, the Subscriber shall:
(a) pay the Subscription Funds to the Company in the manner specified in Clause 2.1;
(b) deliver to the Company the Power of Attorney in substantially the form and content of the power of attorney attached in Third Schedule herein; and
(c) deliver to the Company certified true copy of the resolutions of the board of directors and shareholders (as applicable) of the Subscriber approving and authorising the execution, completion and performance of this Agreement, including but not limited to the grant, execution and performance of the Power of Attorney and such violationmatters contemplated therein.
4.4 Without prejudice to any other remedies available to either party, breach or inaccuracy has if in any respect the provisions of this Clause 4 are not been waived complied with by the Purchaser Company or cured by the Seller within 20 Subscriber, as the case may be, at Completion, the Subscriber or the Company (twentyas the case may be) Business Days after receipt by the Seller of written notice thereof from the Purchaser or is not reasonably capable of being cured prior to the Long Stop Date.may:
(via) By the Seller or the Purchaser, upon written notice defer Completion to the other, if a court of competent jurisdiction or any other Governmental Authority shall have issued a final, non-appealable order preventing or otherwise prohibiting the consummation of the Transactions.
5.5. If this Agreement is terminated prior to Completion in accordance with Clause 5.4 above,
date not later than 31 May 2021 (i) this Agreement shall become void and of no further force and effect; provided, however, so that the provisions of this Clause 5.5 and Clauses 1 4.4. shall apply to Completion as so deferred); or
(Definitions and Interpretation), 11 b) proceed to Completion so far as practicable (Announcements and Confidentiality), 12 (Notices), 13 (Governing Law, Disputes and Jurisdiction), 14.1 (Entire without prejudice to its rights under this Agreement), 14.6 ; or
(Variation), 14.7 (No Assignment), 14.8 (Waiver), 14.9 (Severability), 14.10 (Supersessionc) and 14.11 (Expenses) shall survive the termination of rescind this Agreement indefinitely and that nothing herein shall relieve any Party from any liability for fraud or any breach of the provisions of (without prejudice to its accrued rights under this Agreement prior to such termination; and
(ii) if applicable, the Observer shall no longer be entitled to attend the meetings of the Board (or any committee thereof) and the nominees of the Purchaser appointed on the Board in accordance with Clause 6.2 shall resign with immediate effectAgreement).
Appears in 3 contracts
Sources: Subscription Agreement, Subscription Agreement (CytoMed Therapeutics Pte. Ltd.), Subscription Agreement (CytoMed Therapeutics Pte. Ltd.)
Completion. 5.1. Subject to the conditions set out in Clauses 3.1, 3.2 and 3.3, (A) Completion shall take place on within 3 Business Days following the Completion Date.
5.2. The obligations satisfaction of each of all the Parties under Clause 5.3 below are interdependent of each other. The Completion shall not occur unless all of the obligations specified conditions precedent referred to in Clause 5.3, have been simultaneously complied with and are fully effective.
5.3. On the Completion Date:
2 (i) Subject to deductions pursuant to Clause 4.4, the Purchaser shall remit the Purchase Consideration (in immediately available funds) to the Seller’s Bank Account.
(ii) The Seller shall (a) provide to its Depository Participant duly executed DP Instructions in the prescribed form for the transfer of the Sale Shares to the Demat Account of the Purchaser (details of which shall be provided to the Seller in writing as soon as practicable after the Execution Date); (b) procure its Depository Participant to duly acknowledge such DP Instructions; (c) deliver a copy of such acknowledgement to the Purchaser; and (d) use best endeavours to procure credit of the Sale Shares to the Demat Account of the Purchaser.
(iii) The Seller shall, to the extent it is able to do so through exercise of its voting rights, procure that a Board meeting is held at which the following business shall be transacted:
(a) the appointment of directors nominated by the Purchaser on the Board shall be approved; and
(b) an extra-ordinary general meeting of the shareholders of the Company to approve the matters set out in Clause 5.3(iii)(a) and the amendment of the Articles of Association shall be convened.
5.4. This Agreement may be terminated on or prior to the Completion Date as follows:
(i) By the mutual written consent of the Purchaser and the Seller.
(ii) By the Seller, upon written notice to the Purchaser, if the conditions set out in Clauses 3.1 and 3.3 have not been satisfied (or satisfied subject only to Completion where applicable) or waived (where applicable) on or before 270 (two hundred seventy) days from the Execution Date no later than 30 April 2024 or such later date as may be mutually agreed by all the parties hereto in writing) at the principal place of business of the Company, or other such place as may be agreed between the Parties parties in writing Hong Kong.
(“Long Stop Date”); provided that the Seller shall B) At Completion, all (but not be entitled to terminate this Agreement pursuant to this Clause 5.4(iipart only) if Seller’s breach of this Agreement has prevented or materially delayed the consummation of the Transactions following business shall be transacted:-
(which term for i) the purposes Company shall convene a board meeting to approve the allotment and issue of this Clause 5.4(iithe Subscription Shares to the Investor or his nominee and the issue of the share certificates and entry of the particulars of Investor or his nominee into the register of members of the Company;
(ii) the Company shall not include deliver to the Financing);Investor share certificates in respect of the Subscription Shares with the issue date being the date of Completion; and
(iii) By the Purchaser, upon written notice Investor shall deliver to the Seller, if Company:-
(a) applications completed by himself and/or his nominee for the conditions allotment of the Subscription Shares to be subscribed hereunder substantially in the form set out in Clauses 3.2 and 3.3 have not been satisfied the Schedule;
(b) a cashier order or satisfied subject only cheque in respect of payment for the Subscription Shares at the Subscription Price to Completion where applicable) the Company or waived (where applicable) on or before the Long Stop Date; as it may direct provided that notice shall be given by the Purchaser shall not be entitled Company to terminate this Agreement pursuant the Investor one Business Day prior to this Clause 5.4(iii) if Purchaser’s breach of this Agreement has prevented or materially delayed the consummation of the Transactions.Completion;
(ivC) By In the Seller (if the Seller is not in material breach of the Seller Warranties, covenants or agreements under this Agreement so as to cause event that any of the conditions set forth business referred to in Clause 3.2 and/or 3.3(i4(B) are not to be satisfied), upon written notice transacted to the Purchaser, if there has been a material inaccuracy of any statement or warranty, or any unremedied material breach of a covenant or other agreement, satisfaction of the Purchaser contained in this AgreementInvestor, which violation, breach or inaccuracy would cause any of the conditions set forth in Clause 3.1 and/or 3.3 not to be satisfied as of the Completion Date, and such violation, breach or inaccuracy has not been waived by the Seller or cured by the Purchaser within 20 (twenty) Business Days after receipt by the Purchaser of written notice thereof from the Seller or is not reasonably capable of being cured prior to the Long Stop Date.
(v) By the Purchaser (if the Purchaser is not in material breach of the Purchaser Warranties, covenants or agreements under this Agreement so as to cause any of the conditions set forth in Clause 3.1 and/or 3.3 not to be satisfied), upon written notice to the Seller, if there has been a material inaccuracy of any statement or warranty, or any unremedied material breach of a covenant or other agreement, of the Seller contained in this Agreement, which violation, breach or inaccuracy would cause any of the conditions set forth in Clauses 3.2 and/or 3.3(i) not to be satisfied as of the Completion Date, and such violation, breach or inaccuracy has not been waived by the Purchaser or cured by the Seller within 20 (twenty) Business Days after receipt by the Seller of written notice thereof from the Purchaser or is not reasonably capable of being cured prior to the Long Stop Date.
(vi) By the Seller or the Purchaser, upon written notice to the other, if a court of competent jurisdiction or any other Governmental Authority Investor shall have issued a final, non-appealable order preventing or otherwise prohibiting the consummation of the Transactions.
5.5. If this Agreement is terminated prior to Completion in accordance with Clause 5.4 above,right:-
(i) this Agreement shall become void to defer Completion in respect of the Subscription Shares to a date not more than 30 days thereafter and of no further force and effect; provided, however, so that the provisions of this Clause 5.5 and Clauses 1 4(A) to (Definitions and Interpretation), 11 (Announcements and Confidentiality), 12 (Notices), 13 (Governing Law, Disputes and Jurisdiction), 14.1 (Entire Agreement), 14.6 (Variation), 14.7 (No Assignment), 14.8 (Waiver), 14.9 (Severability), 14.10 (SupersessionB) and 14.11 (Expenses) shall survive the termination of this Agreement indefinitely and that nothing herein shall relieve any Party from any liability for fraud or any breach of apply to the provisions of this Agreement prior to such terminationcompletion as so deferred); andor
(ii) if applicable, the Observer shall no longer be entitled to attend the meetings proceed to Completion in respect of the Board Subscription Shares, subject to its rights to claim for damages; or
(or any committee thereofiii) and to terminate its obligations hereunder in respect of its subscription for the nominees Subscription Shares whereupon all obligations of the Purchaser appointed on Investor to subscribe for the Board in accordance with Clause 6.2 Subscription Shares shall resign with immediate forthwith lapse and shall be of no effect.
Appears in 3 contracts
Sources: Subscription Agreement, Investment Agreement, Subscription Agreement
Completion. 5.18.1. Subject to the conditions set out in Clauses 3.1, 3.2 and 3.3, Completion shall take place on the Completion DateDate at the offices of the Vendor or at such other place as the Purchaser and the Vendor may agree in writing.
5.2. The obligations of each of the Parties under Clause 5.3 below are interdependent of each other. The Completion shall not occur unless all of the obligations specified in Clause 5.3, have been simultaneously complied with and are fully effective.
5.38.2. On the Completion Date:
(i) Subject to deductions pursuant to Clause 4.4Completion, the Purchaser Vendor shall remit the Purchase Consideration (in immediately available funds) deliver or cause to be delivered to the Seller’s Bank Account.
(ii) The Seller shall (a) provide to its Depository Participant duly executed DP Instructions in the prescribed form for the transfer of the Sale Shares to the Demat Account of the Purchaser (details of which shall be provided to the Seller in writing or a Purchaser Designee, as soon as practicable after the Execution Date); (b) procure its Depository Participant to duly acknowledge such DP Instructions; (c) deliver a copy of such acknowledgement to the Purchaser; and (d) use best endeavours to procure credit of the Sale Shares to the Demat Account of the Purchaser.
(iii) The Seller shall, to the extent it is able to do so through exercise of its voting rights, procure that a Board meeting is held at which the following business shall be transactedapplicable:
(a) a copy of the appointment board resolutions of directors nominated the Vendor approving its entry into this Agreement and the sale of the Transferred Assets by the Purchaser on Vendor or any other member of the Board Vendor Group and otherwise the transactions contemplated hereby;
(b) a certificate confirming the satisfaction and fulfilment of the Conditions Precedent listed in paragraphs 1 (to the extent related to the Vendor or any member of Vendor Group) and 3 of Schedule 2;
(c) in the case of the Books and Records, possession thereof as contemplated by Clause 2.5;
(d) a statement setting out the Advance Payments as at the Completion Date;
(e) a statement setting out the Payables and Debts as at the Completion Date;
(f) a USB drive (which shall be approvedaccessible without the need for any password) (the “Dataroom Media”) that contains the true, correct and complete contents of the Dataroom; and, for the avoidance of doubt, shall permit the Purchaser and the applicable Purchaser Designee to continue operating the Maintenance Operations to be sold and transferred under this Agreement.
8.3. On Completion, subject to compliance by the Vendor of its obligations in Clause 8.2, the Purchaser shall:
(a) deliver to the Vendor a copy of the board resolutions of the Purchaser approving its entry into this Agreement and the acquisition of the Transferred Assets from the Vendor or any other member of the Vendor Group and the assumption of the Assumed Liabilities and otherwise authorising the transactions contemplated hereby;
(b) deliver to the Vendor a certificate confirming the satisfaction and fulfilment of the Conditions Precedent listed in paragraph 1 (to the extent related to the Purchaser or any Purchaser Designee) and paragraphs 2 and 4 of Schedule 2;
(c) deliver to the Vendor a copy of the board resolutions of the Purchaser approving and authorizing the allotment and issuance of the OTSAW Shares and the entry of the Vendor in the Purchaser’s electronic register of members in respect thereof and approving and authorising the execution and delivery of a share certificate with respect to the OTSAW Shares to the Vendor;
(d) deliver to the Vendor a copy of the shareholders resolutions of the Purchaser approving and authorizing the allotment and issuance of the OTSAW Shares and waiving any pre-emption rights in respect of the allotment and issue of the OTSAW Shares;
(e) deliver to the Vendor a copy of the board resolutions of the JV Company approving and authorizing the allotment and issuance of the JV Company Shares and the entry of the Vendor in the JV Company’s electronic register of members in respect thereof and approving and authorising the execution and delivery to the Vendor of a share certificate for the JV Company Shares;
(f) deliver to the Vendor a copy of the shareholders resolutions of the JV Company approving and authorizing the allotment and issuance of the JV Company Shares and waiving any pre-emption rights in respect of the allotment and issue of the JV Company Shares; and
(bg) pay to the Vendor the Cash Price and subject to a deduction for an extra-ordinary general meeting amount equivalent to the Advance Payments.
8.4. On Completion, subject to compliance by the Vendor of the shareholders of the Company to approve the matters set out its obligations in Clause 5.3(iii)(a) 8.2 and the amendment Purchaser of its obligations in Clause 8.3, the Articles of Association Parties, its Affiliates or other designees, as applicable, shall be convened.
5.4. This Agreement may be terminated on or prior to enter into the Completion Date as followsfollowing agreements:
(ia) By the mutual written consent of the Purchaser and the Seller.
(ii) By the Seller, upon written notice to the Purchaser, if the conditions set out in Clauses 3.1 and 3.3 have not been satisfied (or satisfied subject only to Completion where applicable) or waived (where applicable) on or before 270 (two hundred seventy) days from the Execution Date or such later date as may be mutually agreed service agreements between the Parties in writing (“Long Stop Date”); provided that the Seller shall not be entitled to terminate this Agreement pursuant to this Clause 5.4(ii) if Seller’s breach of this Agreement has prevented or materially delayed the consummation of the Transactions (which term for the purposes of this Clause 5.4(ii) shall not include the Financing);
(iii) By the Purchaser, upon written notice to the Seller, if the conditions set out in Clauses 3.2 and 3.3 have not been satisfied (or satisfied subject only to Completion where applicable) or waived (where applicable) on or before the Long Stop Date; provided that the Purchaser shall not be entitled to terminate this Agreement pursuant to this Clause 5.4(iii) if Purchaser’s breach of this Agreement has prevented or materially delayed the consummation of the Transactions.
(iv) By the Seller (if the Seller is not in material breach of the Seller Warranties, covenants or agreements under this Agreement so as to cause any of the conditions set forth in Clause 3.2 and/or 3.3(i) not to be satisfied), upon written notice to the Purchaser, if there has been a material inaccuracy of any statement or warranty, or any unremedied material breach of a covenant or other agreement, of the Purchaser contained in this Agreement, which violation, breach or inaccuracy would cause any of the conditions set forth in Clause 3.1 and/or 3.3 not to be satisfied as of the Completion Date, and such violation, breach or inaccuracy has not been waived by the Seller or cured by the Purchaser within 20 (twenty) Business Days after receipt by the Purchaser of written notice thereof from the Seller or is not reasonably capable of being cured prior to the Long Stop Date.
(v) By the Purchaser (if the Purchaser is not in material breach of the Purchaser Warranties, covenants or agreements under this Agreement so as to cause any of the conditions set forth in Clause 3.1 and/or 3.3 not to be satisfied), upon written notice to the Seller, if there has been a material inaccuracy of any statement or warranty, or any unremedied material breach of a covenant or other agreement, of the Seller contained in this Agreement, which violation, breach or inaccuracy would cause any of the conditions set forth in Clauses 3.2 and/or 3.3(i) not to be satisfied as of the Completion Date, and such violation, breach or inaccuracy has not been waived by the Purchaser or cured by the Seller within 20 (twenty) Business Days after receipt by the Seller of written notice thereof from the Purchaser or is not reasonably capable of being cured prior to the Long Stop Date.
(vi) By the Seller or the Purchaser, upon written notice to the other, if a court of competent jurisdiction or any other Governmental Authority shall have issued a final, non-appealable order preventing or otherwise prohibiting the consummation of the Transactions.
5.5. If this Agreement is terminated prior to Completion in accordance with Clause 5.4 above,
(i) this Agreement shall become void and of no further force and effect; provided, however, that the provisions of this Clause 5.5 and Clauses 1 (Definitions and Interpretation), 11 (Announcements and Confidentiality), 12 (Notices), 13 (Governing Law, Disputes and Jurisdiction), 14.1 (Entire Agreement), 14.6 (Variation), 14.7 (No Assignment), 14.8 (Waiver), 14.9 (Severability), 14.10 (Supersession) and 14.11 (Expenses) shall survive the termination of this Agreement indefinitely and that nothing herein shall relieve any Party from any liability for fraud or any breach of the provisions of this Agreement prior to such termination; and
(ii) if applicable, the Observer shall no longer be entitled to attend the meetings of the Board (or any committee thereof) and the nominees of the Purchaser appointed on the Board in accordance with Clause 6.2 shall resign with immediate effect.
Appears in 2 contracts
Sources: Shareholder Agreement (OTSAW LTD), Master Asset Sale Agreement (OTSAW LTD)
Completion. 5.14.1. Subject to Upon and with effect from the conditions set out in Clauses 3.1Execution Date, 3.2 the parties acknowledge and 3.3, Completion shall take place on agree that the Completion Date.
5.2. The obligations of each of the Parties under Clause 5.3 below are interdependent of each other. The Completion shall not occur unless all of the obligations specified in Clause 5.3, Execution Conditions have been simultaneously complied with satisfied or waived in full and are fully effective.
5.3. On the Completion Date:
that subject to (i) Subject clauses 4.2 to deductions pursuant to Clause 4.4, the Purchaser shall remit the Purchase Consideration 4.3 (in immediately available fundsinclusive) to the Seller’s Bank Account.
and (ii) The Seller shall the satisfaction (aor waiver) provide to its Depository Participant duly executed DP Instructions in the prescribed form for the transfer of the Sale Funding Conditions, each Investor subscribing for New Shares and a Warrant pursuant to clause 3.1 shall, on or prior to the Demat Account Longstop Date, pay the sum set out against its name in column 4 of the Purchaser table in clause 3.1 (details of which shall be provided being the aggregate Subscription Price for its New Shares and Warrant), by electronic funds transfer to the Seller in writing as soon as practicable after the Execution Date); (b) procure its Depository Participant to duly acknowledge such DP Instructions; (c) deliver a copy of such acknowledgement to the Purchaser; and (d) use best endeavours to procure credit bank account of the Sale Shares to Company as set out below and payment made in accordance with this clause 4.1 shall constitute a good discharge for such Investor of its obligations under this clause 4.1: Account name : [***] Accountholder address : [***] Bank : [***] USD Account : [***] USD IBAN : [***] SWIFTCODE : [***]
4.2. Upon receipt by the Demat Account Company of subscription monies equalling the total set forth in column 4 of the Purchaser.
table in clause 3.1 (iii) The Seller shallbeing an aggregate Subscription Price of $20,000,000, to or such lesser amount as agreed between the extent it is able to do so through exercise of its voting rightsCompany and the Lead Investor, procure that a Board meeting is held at which the following business shall be transacted“Subscription Threshold”), paid in accordance with clause 4.1 from:
(a) the appointment of directors nominated by the Purchaser on the Board shall be approvedLead Investor; and
(b) an extra-ordinary general meeting each other Investor, the Company shall issue the New Shares and Warrants listed in the table in clause 3.1 to each Investor whose subscription monies have been received by the Company, credited as fully paid and enter its name in the register of members in respect of such New Shares and Warrants (“Completion”).
4.3. Without prejudice to all other rights and remedies available to the shareholders parties, including the right to bring a claim for breach of contract:
(a) if the Subscription Threshold is not satisfied by the Longstop Date (other than by reason of a failure by the Company to approve satisfy the matters set out in Clause 5.3(iii)(aFunding Conditions), the Company shall be entitled to determine that this agreement shall terminate with effect from such determination (or such other specified date) and the amendment of the Articles of Association parties shall be convened.
5.4. This Agreement may be terminated on have no further rights or prior to the Completion Date as follows:
(i) By the mutual written consent of the Purchaser and the Seller.
(ii) By the Seller, upon written notice to the Purchaser, if the conditions set out in Clauses 3.1 and 3.3 have not been satisfied (or satisfied subject only to Completion where applicable) or waived (where applicable) on or before 270 (two hundred seventy) days from the Execution Date or such later date as may be mutually agreed between the Parties in writing (“Long Stop Date”); provided that the Seller shall not be entitled to terminate this Agreement pursuant to this Clause 5.4(ii) if Seller’s breach of this Agreement has prevented or materially delayed the consummation of the Transactions (which term for the purposes of this Clause 5.4(ii) shall not include the Financing);
(iii) By the Purchaser, upon written notice to the Seller, if the conditions set out in Clauses 3.2 and 3.3 have not been satisfied (or satisfied subject only to Completion where applicable) or waived (where applicable) on or before the Long Stop Date; provided that the Purchaser shall not be entitled to terminate this Agreement pursuant to this Clause 5.4(iii) if Purchaser’s breach of this Agreement has prevented or materially delayed the consummation of the Transactions.
(iv) By the Seller (if the Seller is not in material breach of the Seller Warranties, covenants or agreements obligations under this Agreement so as to cause any of the conditions set forth in Clause 3.2 and/or 3.3(i) not to be satisfied), upon written notice to the Purchaser, if there has been a material inaccuracy of any statement or warranty, or any unremedied material breach of a covenant or other agreement, of the Purchaser contained in this Agreement, which violation, breach or inaccuracy would cause any of the conditions set forth in Clause 3.1 and/or 3.3 not to be satisfied as of the Completion Date, other than accrued rights and such violation, breach or inaccuracy has not been waived by the Seller or cured by the Purchaser within 20 (twenty) Business Days after receipt by the Purchaser of written notice thereof from the Seller or is not reasonably capable of being cured prior to the Long Stop Date.
(v) By the Purchaser (if the Purchaser is not in material breach of the Purchaser Warranties, covenants or agreements under this Agreement so as to cause any of the conditions set forth in Clause 3.1 and/or 3.3 not to be satisfied), upon written notice to the Seller, if there has been a material inaccuracy of any statement or warranty, or any unremedied material breach of a covenant or other agreement, of the Seller contained in this Agreement, which violation, breach or inaccuracy would cause any of the conditions set forth in Clauses 3.2 and/or 3.3(i) not to be satisfied as of the Completion Date, and such violation, breach or inaccuracy has not been waived by the Purchaser or cured by the Seller within 20 (twenty) Business Days after receipt by the Seller of written notice thereof from the Purchaser or is not reasonably capable of being cured prior to the Long Stop Date.
(vi) By the Seller or the Purchaser, upon written notice to the other, if a court of competent jurisdiction or any other Governmental Authority shall have issued a final, non-appealable order preventing or otherwise prohibiting the consummation of the Transactions.
5.5. If this Agreement is terminated prior to Completion in accordance with Clause 5.4 above,
(i) this Agreement shall become void and of no further force and effect; provided, however, obligations at that the provisions of this Clause 5.5 and Clauses 1 (Definitions and Interpretation), 11 (Announcements and Confidentiality), 12 (Notices), 13 (Governing Law, Disputes and Jurisdiction), 14.1 (Entire Agreement), 14.6 (Variation), 14.7 (No Assignment), 14.8 (Waiver), 14.9 (Severability), 14.10 (Supersession) and 14.11 (Expenses) shall survive the termination of this Agreement indefinitely and that nothing herein shall relieve any Party from any liability for fraud or any breach of the provisions of this Agreement prior to such terminationtime; and
(iib) without prejudice to clause 4.3(a), if applicable, an Investor (other than the Observer shall no longer be entitled to attend the meetings of the Board (or any committee thereofLead Investor) and the nominees of the Purchaser appointed on the Board does not pay its subscription monies in accordance with Clause 6.2 clause 4.1 by the Longstop Date, the Company and the Lead Investor shall resign with immediate effectbe jointly entitled to determine that such Investor who has failed to pay its subscription monies shall be deemed not to have made any application for New Shares or Warrants under this agreement (but without prejudice to the applications made by any other Investors under this agreement) and upon such determination this agreement shall be deemed varied, without the consent of any other party, or action required, so as to remove all references to such Investor who has failed to pay its subscription monies (who shall cease to be a party to this agreement) and to make any associated changes.
4.4. Within two (2) Business Days following Completion, the Company shall deliver to each Investor who has completed their subscription for New Shares and a Warrant a capitalisation table of the Company as of Completion including details of all: (i) issued Shares; (ii) options, both allocated and unallocated under the Share Incentive Plan(s) (if any); (iii) warrants (including the Warrants); and (iv) any and all other rights to subscribe for shares or convertible securities, if any.
Appears in 2 contracts
Sources: Subscription Agreement (Maywood Acquisition Corp.), Subscription Agreement (Maywood Acquisition Corp.)
Completion. 5.1. Subject to the conditions set out in Clauses 3.1, 3.2 and 3.34.1 Unless otherwise agreed, Completion shall take place at the offices of the Company’s principal place of business on or before 5:00 p.m. on the Completion Date.
5.2. The obligations 4.2 On Completion:
(a) the Vendors shall deliver to the Purchaser:
(i) duly executed transfers of the Sale Shares in favour of the Purchaser together with the share certificates therefor or an indemnity in a form reasonably required by the Purchaser in the case of any missing share certificates; and
(ii) all the constitutive documents of the Company, including (without limitation) the certificates of incorporation, certificates of incorporation on change of name (if any), memorandum and articles of association, the common seals and company chops, minute books, registers of members and registers of directors (both duly written up to date), share certificate books and all other statutory records and documents of the Company;
(b) the Vendors shall procure that a written resolution of all directors of the Company be passed at which the following shall be approved:
(i) the transfers of the Sale Shares;
(ii) the entry of the name of the Purchaser into the register of members of the Company; and
(iii) all such other business as the Purchaser shall reasonably require to vest in the Purchaser the beneficial ownership of the Sale Shares; and
(c) the parties hereto shall procure that each of the Parties under Clause 5.3 below are interdependent of Transaction Documents be executed and delivered by the parties thereto.
4.3 The Vendors and the Company hereby agree that each other. The Completion shall not occur unless all of the obligations specified Prior Agreements shall be deemed terminated and cease to have any effect as of the Completion and shall take any such actions and execute any such documents as are necessary to terminate the Prior Agreements.
4.4 Subject to the conclusion of the matters referred to in Clause 5.34.2 above, have been simultaneously complied with and are fully effective.
5.3. On the Purchaser shall within three Business Days from the Completion Date:
(i) Subject issue and allot the Consideration Shares, credited as fully paid to deductions pursuant to Clause 4.4, the Purchaser shall remit the Purchase Consideration (in immediately available funds) to the Seller’s Bank Account.
(ii) The Seller shall (a) provide to its Depository Participant duly executed DP Instructions in the prescribed form for the transfer each of the Sale Shares to the Demat Account of the Purchaser (details of which shall be provided to the Seller Vendors or as he/it may direct in writing as soon as practicable after the Execution Date); (b) procure its Depository Participant to duly acknowledge such DP Instructions; (c) deliver a copy of such acknowledgement to the Purchaser; and (d) use best endeavours to procure credit of the Sale Shares to the Demat Account of the Purchaser.
(iii) The Seller shall, to the extent it is able to do so through exercise of its voting rights, procure that a Board meeting is held at which the following business shall be transacted:
(a) the appointment of directors nominated by the Purchaser on the Board shall be approved; and
(b) an extra-ordinary general meeting of the shareholders of the Company to approve the matters set out in Clause 5.3(iii)(a) and the amendment of the Articles of Association shall be convened.
5.4. This Agreement may be terminated on or prior to the Completion Date as follows:
(i) By the mutual written consent of the Purchaser and the Seller.
(ii) By the Seller, upon written notice to the Purchaser, if the conditions set out in Clauses 3.1 and 3.3 have not been satisfied (or satisfied subject only to Completion where applicable) or waived (where applicable) on or before 270 (two hundred seventy) days from the Execution Date or such later date as may be mutually agreed between the Parties in writing (“Long Stop Date”); provided that the Seller shall not be entitled to terminate this Agreement pursuant to this Clause 5.4(ii) if Seller’s breach of this Agreement has prevented or materially delayed the consummation of the Transactions (which term for the purposes of this Clause 5.4(ii) shall not include the Financing);
(iii) By the Purchaser, upon written notice to the Seller, if the conditions set out in Clauses 3.2 and 3.3 have not been satisfied (or satisfied subject only to Completion where applicable) or waived (where applicable) on or before the Long Stop Date; provided that the Purchaser shall not be entitled to terminate this Agreement pursuant to this Clause 5.4(iii) if Purchaser’s breach of this Agreement has prevented or materially delayed the consummation of the Transactions.
(iv) By the Seller (if the Seller is not in material breach of the Seller Warranties, covenants or agreements under this Agreement so as to cause any of the conditions set forth in Clause 3.2 and/or 3.3(i) not to be satisfied), upon written notice to the Purchaser, if there has been a material inaccuracy of any statement or warranty, or any unremedied material breach of a covenant or other agreement, of the Purchaser contained in this Agreement, which violation, breach or inaccuracy would cause any of the conditions set forth in Clause 3.1 and/or 3.3 not to be satisfied as of the Completion Date, and such violation, breach or inaccuracy has not been waived by the Seller or cured by the Purchaser within 20 (twenty) Business Days after receipt by the Purchaser of written notice thereof from the Seller or is not reasonably capable of being cured prior to the Long Stop Date.
(v) By the Purchaser (if the Purchaser is not in material breach of the Purchaser Warranties, covenants or agreements under this Agreement so as to cause any of the conditions set forth in Clause 3.1 and/or 3.3 not to be satisfied), upon written notice to the Seller, if there has been a material inaccuracy of any statement or warranty, or any unremedied material breach of a covenant or other agreement, of the Seller contained in this Agreement, which violation, breach or inaccuracy would cause any of the conditions set forth in Clauses 3.2 and/or 3.3(i) not to be satisfied as of the Completion Date, and such violation, breach or inaccuracy has not been waived by the Purchaser or cured by the Seller within 20 (twenty) Business Days after receipt by the Seller of written notice thereof from the Purchaser or is not reasonably capable of being cured prior to the Long Stop Date.
(vi) By the Seller or the Purchaser, upon written notice to the other, if a court of competent jurisdiction or any other Governmental Authority shall have issued a final, non-appealable order preventing or otherwise prohibiting the consummation of the Transactions.
5.5. If this Agreement is terminated prior to Completion in accordance with Clause 5.4 3 above,
(i) this Agreement shall become void and of no further force and effect; provided, however, that the provisions of this Clause 5.5 and Clauses 1 (Definitions and Interpretation), 11 (Announcements and Confidentiality), 12 (Notices), 13 (Governing Law, Disputes and Jurisdiction), 14.1 (Entire Agreement), 14.6 (Variation), 14.7 (No Assignment), 14.8 (Waiver), 14.9 (Severability), 14.10 (Supersession) and 14.11 (Expenses) shall survive the termination of this Agreement indefinitely and that nothing herein shall relieve any Party from any liability for fraud or any breach of the provisions of this Agreement prior to such termination; and
(ii) if applicable, deliver to the Observer shall no longer be entitled to attend the meetings Vendors a copy of the Board (or any committee thereof) and the nominees register of members of the Purchaser appointed on evidencing the Board in accordance with Clause 6.2 shall resign with immediate effectissue and allotment of the relevant number of the Consideration Shares to the Vendors or their named allottees respectively.
Appears in 2 contracts
Sources: Share Exchange Agreement (Nobao Renewable Energy Holdings LTD), Share Exchange Agreement (Nobao Renewable Energy Holdings LTD)
Completion. 5.1. Subject to the conditions set out in Clauses 3.1, 3.2 and 3.3, 7.1 Completion shall take place at the head offices of the Company in Istanbul, Turkey at 11:00 a.m. on the Completion Date.
5.2. The obligations of each of 7.2 At Completion the Parties under Clause 5.3 below are interdependent of each other. The Completion shall not occur unless all of the obligations specified in Clause 5.3, have been simultaneously complied with and are fully effective.
5.3. On the Completion Date:
(i) Subject to deductions pursuant to Clause 4.4, the Purchaser shall remit the Purchase Consideration (in immediately available funds) to the Seller’s Bank Account.
(ii) The Seller shall (a) provide to its Depository Participant duly executed DP Instructions in the prescribed form for the transfer of the Sale Shares to the Demat Account of the Purchaser (details of which shall be provided to the Seller in writing as soon as practicable after the Execution Date); (b) procure its Depository Participant to duly acknowledge such DP Instructions; (c) deliver a copy of such acknowledgement to the Purchaser; and (d) use best endeavours to procure credit of the Sale Shares to the Demat Account of the Purchaser.
(iii) The Seller shall, to the extent it is able to do so through exercise of its voting rights, procure that a Board meeting is held at which the following business shall be transacted:
(a) the appointment of directors nominated by the Purchaser on the Board shall be approved; and
(b) an extra-ordinary general meeting of the shareholders of the Company to approve the matters set out in Clause 5.3(iii)(a) and the amendment of the Articles of Association shall be convened.
5.4. This Agreement may be terminated on or prior to the Completion Date as follows:
(i) By the mutual written consent benefit of the Purchaser and the Seller.
Dogus) do those things listed in Part A (ii) By Transfer obligations), in so far as applicable to the Seller, upon written notice and in Part B (Seller’s obligations) of Schedule 2 (Completion arrangements) and the Purchaser shall do those things listed in Part A (Transfer obligations), in so far as applicable to the Purchaser, if and Part C (Purchaser’s obligations) of Schedule 2 (Completion arrangements). Completion shall take place in accordance with Part D (General) of Schedule 2 (Completion arrangements).
7.3 Neither the conditions set out in Clauses 3.1 and 3.3 have not been satisfied (or satisfied subject only to Completion where applicable) or waived (where applicable) on or before 270 (two hundred seventy) days from the Execution Date or such later date as may be mutually agreed between the Parties in writing (“Long Stop Date”); provided that Purchaser nor the Seller shall not be entitled obliged to terminate this Agreement pursuant to this Clause 5.4(ii) if Seller’s breach of this Agreement has prevented or materially delayed complete the consummation sale and purchase of the Transactions (which term for Shares unless the purposes sale and purchase of this Clause 5.4(ii) shall not include all the Financing);
(iii) By the Purchaser, upon written notice to the Seller, if the conditions set out in Clauses 3.2 and 3.3 have not been satisfied (or satisfied subject only to Completion where applicable) or waived (where applicable) on or before the Long Stop Date; provided that the Purchaser shall not be entitled to terminate this Agreement pursuant to this Clause 5.4(iii) if Purchaser’s breach of this Agreement has prevented or materially delayed the consummation of the Transactions.
(iv) By the Seller (if the Seller is not in material breach of the Seller Warranties, covenants or agreements Shares under this Agreement so and all the Shares (as to cause any that term is defined in the Dogus SPA) under the Dogus SPA are completed simultaneously.
7.4 The Seller shall procure that the Dogus Shareholders’ Agreement shall terminate with effect from the last of the conditions set forth in Clause 3.2 and/or 3.3(i) not steps that has to be satisfied), upon written notice to the Purchaser, if there has been a material inaccuracy of any statement or warranty, or any unremedied material breach of a covenant or other agreement, of the Purchaser contained in this Agreement, which violation, breach or inaccuracy would cause any of the conditions set forth in Clause 3.1 and/or 3.3 not to be satisfied as of the Completion Date, and such violation, breach or inaccuracy has not been waived by the Seller or cured by the Purchaser within 20 (twenty) Business Days after receipt by the Purchaser of written notice thereof from the Seller or is not reasonably capable of being cured taken prior to the Long Stop Date.
(v) By occurrence of Completion having been taken. With effect from Completion, the Purchaser (if the Purchaser is not in material breach of the Purchaser Warranties, covenants or agreements under this Agreement so as to cause any of the conditions set forth in Clause 3.1 and/or 3.3 not to be satisfied), upon written notice to the Seller, if there has been a material inaccuracy of any statement or warranty, or any unremedied material breach of a covenant or other agreement, of the Seller contained in this Agreement, which violation, breach or inaccuracy would cause any of the conditions set forth in Clauses 3.2 and/or 3.3(i) not to be satisfied as of the Completion Date, and such violation, breach or inaccuracy has not been waived by the Purchaser or cured by the Seller within 20 (twenty) Business Days after receipt by the Seller of written notice thereof from the Purchaser or is not reasonably capable of being cured prior to the Long Stop Date.
(vi) By the Seller or the Purchaser, upon written notice to the other, if a court of competent jurisdiction or any other Governmental Authority shall have issued a final, non-appealable order preventing or otherwise prohibiting the consummation of the Transactions.
5.5. If this Agreement is terminated prior to Completion in accordance with Clause 5.4 above,
(i) this New Shareholders’ Agreement shall become void and of no further come into full force and effect.
7.5 If the respective obligations of:
(A) the Seller and/or the Purchaser under sub-clauses 5.3, 5.4 and 7.2 and Schedule 2 (Completion arrangements); providedor
(B) Dogus or the Purchaser under sub-clauses 5.3, however5.4 and 7.2 and Schedule 2 (Completion arrangements) of the Dogus SPA, are not complied with on the Completion Date the non-defaulting party may:
(C) defer Completion (so that the provisions of this Clause 5.5 and Clauses 1 7 shall apply to Completion as so deferred); or
(Definitions and Interpretation), 11 D) proceed to Completion as far as practicable (Announcements and Confidentiality), 12 (Notices), 13 (Governing Law, Disputes and Jurisdiction), 14.1 (Entire without limiting its rights under this Agreement), 14.6 ; or
(Variation), 14.7 (No Assignment), 14.8 (Waiver), 14.9 (Severability), 14.10 (SupersessionE) and 14.11 (Expenses) shall survive the termination of terminate this Agreement indefinitely by notice in writing to the other party.
7.6 For the purposes of sub-clause 7.5, the non-defaulting party shall also include Dogus if it has complied with its obligations under sub-clause 5.3, 5.4 and 7.2 and Schedule 2 (Completion Arrangements) of the Dogus SPA. In the event that nothing herein there is more than one non-defaulting party, such non-defaulting parties shall relieve agree what action to take in accordance with sub-clause 7.5 and, if such non-defaulting parties fail to reach an agreement, this Agreement shall terminate in accordance with sub-clause 7.5(E).
7.7 If this Agreement is terminated in accordance with sub-clause 7.5 (and without limiting any Party party’s right to claim damages from any liability the other in respect thereof):
(A) all obligations of the Parties shall end (except for fraud or any breach of the provisions of this Agreement prior Clauses 17 (Announcements) and 18 (Confidentiality)) but (for the avoidance of doubt) all rights and liabilities of the parties which have accrued before termination shall continue to such terminationexist;
(B) in circumstances in which the termination has resulted solely from the Purchaser’s failure to fulfil its obligations under sub-clauses 7.2 and Schedule 2 (Completion arrangements), the Purchaser will indemnify the Seller (and Dogus) on demand on an after-Tax basis for all costs and expenses reasonably incurred by the Seller (and Dogus); and
(iiC) if applicablein circumstances in which the termination has resulted solely from the failure of the Seller to fulfil its obligations under sub-clause 7.2 and Schedule 2 (Completion arrangements), the Observer Seller will indemnify the Purchaser (and Dogus) on demand on an after-Tax basis for all costs and expenses reasonably incurred by the Purchaser (and Dogus).
7.8 Following Completion, the Purchaser shall no longer be entitled make (or procure the Company to attend the meetings make) any notifications of the Board (transfer of the Shares as may be required by law or any committee thereof) regulation and the nominees of Seller shall provide such assistance as the Purchaser appointed on the Board may reasonably require in accordance with Clause 6.2 shall resign with immediate effectmaking such notifications.
Appears in 2 contracts
Sources: Share Purchase Agreement, Share Purchase Agreement (Banco Bilbao Vizcaya Argentaria, S.A.)
Completion. 5.1. Subject to the conditions set out in Clauses 3.1, 3.2 and 3.3, 14.1 Completion shall take place on the 5th Business Day after the later of:
14.1.1 the day on which the Completion Conditions have been satisfied or waived; and
14.1.2 such other date as the Parties may agree in writing, (the Completion Date).
5.2. The obligations 14.2 Prior to the Completion Date, the Parties and the Notary shall enter into the Notary Letter.
14.3 At Completion, the Parties shall perform all actions or procure the performance of all actions as set out in Schedule 3 (Completion Agenda), it being understood and agreed that (i) any actions set forth therein which have already been performed before Completion, shall be deemed to have been performed at Completion and (ii) each of the Parties under Clause 5.3 below are interdependent of each other. The Completion actions set forth therein shall not occur unless all be conditional upon the completion of the obligations specified performances of all other actions expressed to be performed, executed or delivered at Completion in accordance with this Clause 5.3, have been simultaneously complied with and are fully effective14.3.
5.3. On 14.4 Each Party shall, at its own cost and expense, perform all such further acts and execute all such further documents as shall be necessary to fully effect the Completion Date:
(i) Subject to deductions pursuant to Clause 4.4, the Purchaser shall remit the Purchase Consideration (in immediately available funds) to the Seller’s Bank Accounttransactions contemplated by this Agreement.
(ii) The Seller shall (a) provide to its Depository Participant duly executed DP Instructions in 14.5 If the prescribed form for Sellers on the transfer of the Sale Shares to the Demat Account of the Purchaser (details of which shall be provided to the Seller in writing as soon as practicable after the Execution Date); (b) procure its Depository Participant to duly acknowledge such DP Instructions; (c) deliver a copy of such acknowledgement to the Purchaser; and (d) use best endeavours to procure credit of the Sale Shares to the Demat Account of the Purchaser.
(iii) The Seller shall, to the extent it is able to do so through exercise of its voting rights, procure that a Board meeting is held at which the following business shall be transacted:
(a) the appointment of directors nominated by one hand or the Purchaser on the Board shall be approved; and
(b) an extra-ordinary general meeting other hand fail to perform or procure the performance of any of the shareholders actions set forth in the Completion Agenda and the performance of such action or actions is not waived by the other Party on the Completion Date, the Purchaser may if one or more of the Company Sellers failed to approve the matters set out in Clause 5.3(iii)(a) perform and the amendment of the Articles of Association shall be convened.
5.4. This Agreement Sellers may be terminated on or prior to the Completion Date as follows:
(i) By the mutual written consent of if the Purchaser failed to perform, without prejudice to any other rights and the Seller.
(ii) By the Sellerremedies available to it pursuant to this Agreement or applicable Law, upon by written notice to the Purchaser, if other Party:
14.5.1 terminate (beëindigen) this Agreement with immediate effect;
14.5.2 effect Completion on the conditions set out in Clauses 3.1 and 3.3 Completion Date insofar as practicable having regard to the default(s) that have not been satisfied (or satisfied subject only to Completion where applicable) or waived (where applicable) on or before 270 (two hundred seventy) days from the Execution Date or such later date as may be mutually agreed between the Parties in writing (“Long Stop Date”)occurred; provided or
14.5.3 demand that the Seller Party not performing shall not be entitled to terminate this Agreement pursuant to this Clause 5.4(ii) if Seller’s breach of this Agreement has prevented or materially delayed perform the consummation of the Transactions relevant actions as soon as possible, but ultimately within ten (which term for the purposes of this Clause 5.4(ii) shall not include the Financing);
(iii) By the Purchaser, upon written notice to the Seller, if the conditions set out in Clauses 3.2 and 3.3 have not been satisfied (or satisfied subject only to Completion where applicable) or waived (where applicable) on or before the Long Stop Date; provided that the Purchaser shall not be entitled to terminate this Agreement pursuant to this Clause 5.4(iii) if Purchaser’s breach of this Agreement has prevented or materially delayed the consummation of the Transactions.
(iv) By the Seller (if the Seller is not in material breach of the Seller Warranties, covenants or agreements under this Agreement so as to cause any of the conditions set forth in Clause 3.2 and/or 3.3(i) not to be satisfied), upon written notice to the Purchaser, if there has been a material inaccuracy of any statement or warranty, or any unremedied material breach of a covenant or other agreement, of the Purchaser contained in this Agreement, which violation, breach or inaccuracy would cause any of the conditions set forth in Clause 3.1 and/or 3.3 not to be satisfied as of the Completion Date, and such violation, breach or inaccuracy has not been waived by the Seller or cured by the Purchaser within 20 (twenty10) Business Days after receipt by the Purchaser of written notice thereof from the Seller or is not reasonably capable of being cured prior to the Long Stop Date.
(v) By the Purchaser (if the Purchaser is not in material breach of the Purchaser Warrantiesdate set for Completion, covenants or agreements under this Agreement so as to cause any of the conditions set forth in Clause 3.1 and/or 3.3 not to be satisfied), upon written notice to the Seller, if there has been a material inaccuracy of any statement or warranty, or any unremedied material breach of a covenant or other agreement, of the Seller contained in this Agreement, which violation, breach or inaccuracy would cause any of the conditions set forth in Clauses 3.2 and/or 3.3(i) not to be satisfied as of the Completion Date, and such violation, breach or inaccuracy has not been waived by the Purchaser or cured by the Seller within 20 (twenty) Business Days after receipt by the Seller of written notice thereof from the Purchaser or is not reasonably capable of being cured prior to the Long Stop Date.
(vi) By the Seller or the Purchaser, upon written notice to the other, if a court of competent jurisdiction or any other Governmental Authority shall have issued a final, non-appealable order preventing or otherwise prohibiting the consummation of the Transactions.
5.5. If this Agreement is terminated prior to Completion in accordance with Clause 5.4 above,
resulting in: (i) this Agreement shall become void and of no further force and effect; provideda postponed Completion on the 10th Business Day following the date such action is completed, however, that the provisions of this Clause 5.5 and Clauses 1 (Definitions and Interpretation), 11 (Announcements and Confidentiality), 12 (Notices), 13 (Governing Law, Disputes and Jurisdiction), 14.1 (Entire Agreement), 14.6 (Variation), 14.7 (No Assignment), 14.8 (Waiver), 14.9 (Severability), 14.10 (Supersession) and 14.11 (Expenses) shall survive the termination of this Agreement indefinitely and that nothing herein shall relieve any Party from any liability for fraud or any breach of in which case the provisions of this Agreement prior apply as if the date to such termination; and
which Completion is postponed is the date initially set for Completion, or (ii) if applicable, the Observer shall no longer be entitled to attend the meetings termination (beëindiging) of the Board (or any committee thereof) and the nominees of this Agreement with immediate effect by the Purchaser appointed on (in case the Board defaulting party is a Seller) or the Sellers (in accordance with Clause 6.2 shall resign with immediate effectcase the defaulting Party is the Purchaser), if the defaulting Party has not performed the relevant actions within such period.
Appears in 2 contracts
Sources: Master Purchase Agreement (SunOpta Inc.), Signing Protocol (SunOpta Inc.)
Completion. 5.1. Subject to the conditions set out in Clauses 3.1, 3.2 and 3.3, 4.1 Completion under this Agreement shall take place on at the Completion Dateoffices of the Seller at a time agreed by the Parties.
5.2. The obligations of each of the Parties under Clause 5.3 below are interdependent of each other. The Completion shall not occur unless all of the obligations specified in Clause 5.3, have been simultaneously complied with and are fully effective.
5.3. 4.2 On the Completion Date:
(i) Subject to deductions pursuant to Clause 4.4, the Purchaser shall remit the Purchase Consideration (in immediately available funds) to the Seller’s Bank Account.
(ii) The Seller shall (a) provide to its Depository Participant duly executed DP Instructions in the prescribed form for the transfer Date all but not part of the Sale Shares to the Demat Account of the Purchaser (details of which shall be provided to the Seller in writing as soon as practicable after the Execution Date); (b) procure its Depository Participant to duly acknowledge such DP Instructions; (c) deliver a copy of such acknowledgement to the Purchaser; and (d) use best endeavours to procure credit of the Sale Shares to the Demat Account of the Purchaser.
(iii) The Seller shall, to the extent it is able to do so through exercise of its voting rights, procure that a Board meeting is held at which the following business shall be transacted:
(a) the appointment of directors nominated by the 4.2.1 The Purchaser on the Board shall be approved; and
(b) an extra-ordinary general meeting of the shareholders of the Company to approve the matters set out in Clause 5.3(iii)(a) and the amendment of the Articles of Association shall be convened.
5.4. This Agreement may be terminated on or prior to the Completion Date as follows:
(i) By the mutual written consent of the Purchaser and the Seller.
(ii) By the Seller, upon written notice to the Purchaser, if the conditions set out in Clauses 3.1 and 3.3 have not been satisfied (or satisfied subject only to Completion where applicable) or waived (where applicable) on or before 270 (two hundred seventy) days from the Execution Date or such later date as may be mutually agreed between the Parties in writing (“Long Stop Date”); provided that the Seller shall not be entitled to terminate this Agreement pursuant to this Clause 5.4(ii) if Seller’s breach of this Agreement has prevented or materially delayed the consummation of the Transactions (which term for the purposes of this Clause 5.4(ii) shall not include the Financing);
(iii) By the Purchaser, upon written notice shall: pay to the Seller, if or pay in accordance with a direction from an Affiliate to an Affiliate, the conditions set out in Clauses 3.2 and 3.3 have not been satisfied (Consideration as increased or satisfied subject only decreased by the Working Capital Adjustment; deliver to Completion where applicable) or waived (where applicable) on or before the Long Stop Date; provided that the Purchaser shall not be entitled to terminate this Agreement pursuant to this Clause 5.4(iii) if Purchaser’s breach of this Agreement has prevented or materially delayed the consummation of the Transactions.
(iv) By the Seller (to the extent not already delivered prior to Completion) a copy of the releases, consents, approvals, confirmations or waivers, if any, referred to in Clause 2.2 and obtained by or on behalf of the Purchaser; deliver to the Seller (to the extent not already delivered prior to Completion) a copy, certified as a true copy and in full force and effect by a director or the legal manager of the Purchaser, of (i) a resolution of the board of directors of the Purchaser authorising its entry into the transactions contemplated by this Agreement; and, if relevant, (ii) a Power of Attorney authorising a person or persons to sign this Agreement and the Assignment Documents on behalf of the Purchaser; execute and deliver those of the Assignment Documents to which it is a signatory; and perform such other actions and execute such other documents as may be required to transfer the Other Interests to it.
4.2.2 The Seller shall, after confirmation of receipt of the amounts payable under Clause 4.2.1(a), deliver to the Purchaser (to the extent not already delivered prior to Completion): the Assignment Documents duly executed by all the Relevant Third Parties other than the Purchaser; a copy of other releases, consents, approvals, confirmations or waivers, if any, referred to in material breach Clause 2.2 and obtained by or on behalf of the Seller; a copy, certified as a true copy and in full force and effect by a director or the legal manager of the Seller, of (i) a resolution of the board of directors of the Seller Warrantiesauthorising its entry into the transactions contemplated by this Agreement; and, covenants if relevant, (ii) a Power of Attorney authorising a person or agreements under persons to sign this Agreement so as to cause any and the Assignment Documents on behalf of the conditions set forth in Clause 3.2 and/or 3.3(i) not Seller; and perform such other actions and execute such other documents as the Purchaser may reasonably require, to be satisfied), upon written notice transfer the Other Interests to the Purchaser, if there has been a material inaccuracy of any statement or warranty, or any unremedied material breach of a covenant or other agreement, of .
4.2.3 Title to the Purchaser contained in this Agreement, which violation, breach or inaccuracy would cause any of Interests and the conditions set forth in Clause 3.1 and/or 3.3 not to be satisfied as of the Completion Date, and such violation, breach or inaccuracy has not been waived by the Seller or cured by the Purchaser within 20 (twenty) Business Days after receipt by the Purchaser of written notice thereof Other Interests shall pass from the Seller or is not reasonably capable of being cured prior to the Long Stop DatePurchaser upon Completion.
(v) By the Purchaser (if the Purchaser is not in material breach of the Purchaser Warranties, covenants or agreements under this Agreement so as to cause any of the conditions set forth in Clause 3.1 and/or 3.3 not to be satisfied), upon written notice to the Seller, if there has been a material inaccuracy of any statement or warranty, or any unremedied material breach of a covenant or other agreement, of the Seller contained in this Agreement, which violation, breach or inaccuracy would cause any of the conditions set forth in Clauses 3.2 and/or 3.3(i) not to be satisfied as of the Completion Date, and such violation, breach or inaccuracy has not been waived by the Purchaser or cured by the Seller within 20 (twenty) Business Days after receipt by the Seller of written notice thereof from the Purchaser or is not reasonably capable of being cured prior to the Long Stop Date.
(vi) By the Seller or the Purchaser, upon written notice to the other, if a court of competent jurisdiction or any other Governmental Authority shall have issued a final, non-appealable order preventing or otherwise prohibiting the consummation of the Transactions.
5.5. If this Agreement is terminated prior to Completion in accordance with Clause 5.4 above,
(i) this Agreement shall become void and of no further force and effect; provided, however, that the provisions of this Clause 5.5 and Clauses 1 (Definitions and Interpretation), 11 (Announcements and Confidentiality), 12 (Notices), 13 (Governing Law, Disputes and Jurisdiction), 14.1 (Entire Agreement), 14.6 (Variation), 14.7 (No Assignment), 14.8 (Waiver), 14.9 (Severability), 14.10 (Supersession) and 14.11 (Expenses) shall survive the termination of this Agreement indefinitely and that nothing herein shall relieve any Party from any liability for fraud or any breach of the provisions of this Agreement prior to such termination; and
(ii) if applicable, the Observer shall no longer be entitled to attend the meetings of the Board (or any committee thereof) and the nominees of the Purchaser appointed on the Board in accordance with Clause 6.2 shall resign with immediate effect.
Appears in 2 contracts
Sources: Hive Out Agreement, Hive Out Agreement (Endeavour International Corp)
Completion. 5.1. Subject 5.1 On Completion, the sales and purchases of the Shares shall be completed in the order specified below with Completion taking place at the offices of the Buyer’s Solicitors on the fifth Business Day after the day on which all the conditions specified in clause 2.1(a) to 2.1(j) have been satisfied or waived or at such other place or time, or on such other date, as the parties may agree:
(a) first, the sale of the Indirect Sale Shares by the ODL Shareholders to the conditions set out in Clauses 3.1C-Corp Sellers;
(b) secondly, 3.2 and 3.3the sale of the Indirect Sale Shares by the C-Corp Sellers to the Buyer; and
(c) thirdly, Completion shall take place on the Completion Datesale of the Direct Sale Shares by the ODL Shareholders to the Buyer.
5.25.2 Insofar as they are able each of the ODL Sellers shall on Completion do, or procure to be done, the things specified in Schedule 5 (in so far as they have not already been done). The obligations of each Gardenparty and the Adhering ODL Sellers pursuant to this clause 5.2 shall be limited to obligations relating to their own Shares within their personal control including voting their Shares in favour of any shareholder resolutions proposed to implement any matter specified in Schedule 5.
5.3 Following the performance of the Parties ODL Sellers’ obligations under Clause 5.3 below are interdependent of each other. The clause 5.2, the Buyer shall on Completion shall not occur unless all -
(a) deliver one counterpart of the obligations specified in Clause 5.3, have been simultaneously complied with LLC Agreement executed by the Buyer to the C-Corp Sellers reflecting the issue of the Buyer Initial Share to the C-Corp Sellers and are fully effective.the ability to issue the Buyer Performance Share;
5.3. On the Completion Date(b) procure that:
(i) Subject ▇▇▇▇▇▇ ▇▇▇▇▇▇ Wellesley be appointed as an observer of the board of directors of the Buyer as the initial C-Corp Sellers’ board observer representative (such observer being entitled to deductions pursuant receive notice of, and attend meetings, of the board of directors of the Buyer as if he were a director of the Buyer but not counting towards quorum or being entitled to Clause 4.4, the Purchaser shall remit the Purchase Consideration (in immediately available fundsspeak or vote at any such meetings) to the Seller’s Bank Account.and
(ii) The Seller shall ▇▇▇▇▇▇▇ Naldini (a) provide or a substitute acceptable to its Depository Participant duly executed DP Instructions in the prescribed form for the transfer board of directors of the Sale Shares to the Demat Account Buyer) be approved as an alternate observer of the Purchaser (details board of which shall be provided to directors of the Seller in writing as soon as practicable after the Execution Date)Buyer for ▇▇▇▇▇▇ ▇▇▇▇▇▇ Wellesley; (b) procure its Depository Participant to duly acknowledge such DP Instructions; and
(c) deliver a copy the items specified in Part B of such acknowledgement Schedule 5 duly executed by the Buyer.
5.4 The Buyer may make any payment due to the Purchaser; ODL Sellers under this Agreement and (d) use best endeavours to procure credit of deliver the Sale Shares items specified in clause 5.3 to the Demat Account of Sellers’ Solicitors, whose receipt shall be a sufficient discharge to the PurchaserBuyer and the Buyer shall have no duty to see that any items delivered to the Sellers’ Solicitors are further delivered or applied in any particular way. The ODL Sellers may deliver the items specified in clause 5.2 to the Buyers’ Solicitors whose receipt shall be a sufficient discharge to the ODL Sellers and the ODL Sellers shall have no duty to see that any items delivered to the Buyer’s Solicitors are further delivered or applied in any particular way.
5.5 If the ODL Sellers fail to comply with any of their obligations under clause 5.2 on or before the date fixed for Completion (iiiwhether by clause 5.1 or by a notice given pursuant to clause 5.5(b) The Seller shallbelow), the Buyer may, without prejudice to the extent Buyer’s rights or remedies which it is able to do so through exercise may have under this Agreement and which in the case of its voting rights, procure that a Board meeting is held repudiation are set out at which the following business shall be transactedclauses 5.5(b) and 5.7:
(a) complete the appointment sale and purchase of directors nominated by the Purchaser Shares (so far as is practicable) on the Board shall be approveddate so fixed; andor
(b) an extra-ordinary general meeting of the shareholders of the Company to approve the matters set out in Clause 5.3(iii)(a) and the amendment of the Articles of Association shall be convened.
5.4. This Agreement may be terminated on or prior to the Completion Date as follows:
(i) By the mutual written consent of the Purchaser and the Seller.
(ii) By the Seller, upon by written notice to the PurchaserSellers’ Representative, defer Completion to a place, time and date, being a Business Day not less than 5 Business Days and not more than 25 Business Days after the date of the notice, and the provisions of clauses 5.2 and 5.3 shall apply to Completion so deferred and, if in such written notice, the conditions set out in Clauses 3.1 Buyer specifies that the ODL Sellers’ failure constitutes a repudiatory breach, then the time and 3.3 have date for the deferred Completion shall be not been satisfied (or satisfied subject only less than 20 Business Days and not more than 25 Business Days after the date of the notice and the provisions of clauses 5.2 and 5.3 shall apply to Completion where applicableso deferred.
5.6 If the Buyer defers Completion in accordance with clause 5.5(b) or waived (where applicableabove, it shall specify in the written notice referred to in clause 5.5(b) on or before 270 (two hundred seventy) days from the Execution Date or such later date as may any breach of obligation it considers to be mutually agreed between the Parties in writing (“Long Stop Date”); provided a repudiatory breach.
5.7 The Buyer acknowledges that the Seller it shall not be entitled to terminate rescind or repudiate this Agreement pursuant to this Clause 5.4(ii) if Seller’s breach of this Agreement has prevented or materially delayed except the consummation of the Transactions (which term for the purposes of this Clause 5.4(ii) Buyer shall not include the Financing);
(iii) By the Purchaser, upon written notice to the Seller, if the conditions set out in Clauses 3.2 and 3.3 have not been satisfied (or satisfied subject only to Completion where applicable) or waived (where applicable) on or before the Long Stop Date; provided that the Purchaser shall not be entitled to terminate rescind this Agreement pursuant to this Clause 5.4(iii) if Purchaser’s breach of this Agreement has prevented or materially delayed the consummation of the Transactions.
(iv) By the Seller (if the Seller is not in material breach of the Seller Warranties, covenants or agreements under this Agreement so as to cause any of the conditions set forth in Clause 3.2 and/or 3.3(i) not to be satisfied), upon written notice to the Purchaser, if where there has been a material inaccuracy of any statement or warrantyrepudiatory breach by the ODL Sellers, or any unremedied material breach of a covenant or other agreement, of the Purchaser contained notice has been given in this Agreement, which violation, breach or inaccuracy would cause any of the conditions set forth in Clause 3.1 and/or 3.3 not to be satisfied as of the Completion Date, accordance with clause 5.5(b) and such violation, repudiatory breach or inaccuracy has not been waived remedied by the Seller or cured by the Purchaser within 20 (twenty) Business Days after receipt by the Purchaser date of written notice thereof from the Seller or is not reasonably capable of being cured prior to the Long Stop Date.
(v) By the Purchaser (if the Purchaser is not in material breach of the Purchaser Warranties, covenants or agreements under this Agreement so Completion as to cause any of the conditions set forth in Clause 3.1 and/or 3.3 not to be satisfied), upon written notice to the Seller, if there has been a material inaccuracy of any statement or warranty, or any unremedied material breach of a covenant or other agreement, of the Seller contained in this Agreement, which violation, breach or inaccuracy would cause any of the conditions set forth in Clauses 3.2 and/or 3.3(i) not to be satisfied as of the Completion Date, and such violation, breach or inaccuracy has not been waived by the Purchaser or cured by the Seller within 20 (twenty) Business Days after receipt by the Seller of written notice thereof from the Purchaser or is not reasonably capable of being cured prior to the Long Stop Date.
(vi) By the Seller or the Purchaser, upon written notice to the other, if a court of competent jurisdiction or any other Governmental Authority shall have issued a final, non-appealable order preventing or otherwise prohibiting the consummation of the Transactions.
5.5. If this Agreement is terminated prior to Completion deferred in accordance with Clause 5.4 above,
(i) this Agreement shall become void and of no further force and effect; provided, however, that the provisions of this Clause 5.5 and Clauses 1 (Definitions and Interpretationclause 5.5(b), 11 (Announcements and Confidentiality), 12 (Notices), 13 (Governing Law, Disputes and Jurisdiction), 14.1 (Entire Agreement), 14.6 (Variation), 14.7 (No Assignment), 14.8 (Waiver), 14.9 (Severability), 14.10 (Supersession) and 14.11 (Expenses) shall survive the termination of this Agreement indefinitely and that nothing herein shall relieve any Party from any liability for fraud or any breach of the provisions of this Agreement prior to such termination; and
(ii) if applicable, the Observer shall no longer be entitled to attend the meetings of the Board (or any committee thereof) and the nominees of the Purchaser appointed on the Board in accordance with Clause 6.2 shall resign with immediate effect.
Appears in 2 contracts
Sources: Share Purchase Agreement (FXCM Inc.), Share Purchase Agreement (FXCM Inc.)
Completion. 5.1. Subject to the conditions set out in Clauses 3.1, 3.2 and 3.3, 6.1 Completion shall take place on the Completion DateDate at the offices of the Purchaser’s or the Seller Lawyers, in each case taking into account applicable tax considerations, or at such other place as is agreed in writing by the Seller and Purchaser.
5.26.2 At Completion the Seller shall undertake those actions listed in Part 1of Schedule 2 (Completion Arrangements) and the Purchaser shall undertake those actions listed in Part 2 of Schedule 2 (Completion Arrangements). The Payment of the Closing Amount to the Seller’s Designated Account shall discharge the obligations of each the Purchaser (a) pursuant to Clause 6.4 and (b) to pay the Closing Amount, and the Purchaser shall not be concerned as to the application of the Parties Closing Amount between the Relevant Sellers.
6.3 If: (i) the Seller breaches its obligations under Clause 5.3 below are interdependent 6.2 and under paragraph 1, 2.3, 2.5, 3.2, 3.4, 3.5, 3.6 or 3.7 of each other. The Part 1 of Schedule 2 (Completion Arrangements); or (ii) the Purchaser breaches its obligations under Clause 6.2 and under paragraph 1, 2, 3 or 4 of Part 2 of Schedule 2 (Completion Arrangements) on the Completion Date, the Seller (in the case of a breach by the Purchaser) or the Purchaser (in the case of a breach by the Seller) shall not occur unless all be obliged to complete this Agreement and the Seller or, as the case may be, the Purchaser, may elect by notice in writing to the other to:
(a) defer Completion (with the provisions of this Clause 6 applying to Completion as so deferred);
(b) proceed to Completion as far as practicable (without limiting its rights and remedies under this Agreement); or
(c) treat this Agreement as terminated for breach of condition subject to, and on the obligations specified in basis set out in, Clause 5.3, have been simultaneously complied with and are fully effective13.5.
5.3. On 6.4 Immediately following Completion but on the Completion Date:
(ia) Subject to deductions pursuant to Clause 4.4, the Purchaser shall remit procure that each relevant Group Company repays to the Purchase Consideration (in immediately available funds) to relevant member of the Seller’s Bank Account.
Group (iiother than another Group Company) The Seller the amount of any Estimated Intra-Group Financing Payables in respect of that Group Company, and shall (a) provide to its Depository Participant duly executed DP Instructions in acknowledge on behalf of each relevant Group Company the prescribed form for the transfer payment of the Sale Shares to the Demat Account of the Purchaser (details of which shall be provided to the Seller Estimated Intra-Group Financing Receivables in writing as soon as practicable after the Execution Dateaccordance with Clause 6.4(b); (b) procure its Depository Participant to duly acknowledge such DP Instructions; (c) deliver a copy of such acknowledgement to the Purchaser; and (d) use best endeavours to procure credit of the Sale Shares to the Demat Account of the Purchaser.
(iii) The Seller shall, to the extent it is able to do so through exercise of its voting rights, procure that a Board meeting is held at which the following business shall be transacted:
(a) the appointment of directors nominated by the Purchaser on the Board shall be approved; and
(b) an extra-ordinary general meeting of the shareholders of the Company to approve the matters set out in Clause 5.3(iii)(a) and the amendment of the Articles of Association shall be convened.
5.4. This Agreement may be terminated on or prior to the Completion Date as follows:
(i) By the mutual written consent of the Purchaser and the Seller.
(ii) By the Seller, upon written notice to the Purchaser, if the conditions set out in Clauses 3.1 and 3.3 have not been satisfied (or satisfied subject only to Completion where applicable) or waived (where applicable) on or before 270 (two hundred seventy) days from the Execution Date or such later date as may be mutually agreed between the Parties in writing (“Long Stop Date”); provided that the Seller shall not be entitled to terminate this Agreement pursuant to this Clause 5.4(ii) if procure that each relevant member of the Seller’s breach Group (other than a Group Company) repays to the relevant Group Company the amount of this Agreement has prevented or materially delayed the consummation any Estimated Intra-Group Financing Receivables in respect of that Group Company, and shall acknowledge on behalf of each relevant member of the Transactions (which term for Seller’s Group the purposes of this Clause 5.4(ii) shall not include the Financing);
(iii) By the Purchaser, upon written notice to the Seller, if the conditions set out in Clauses 3.2 and 3.3 have not been satisfied (or satisfied subject only to Completion where applicable) or waived (where applicable) on or before the Long Stop Date; provided that the Purchaser shall not be entitled to terminate this Agreement pursuant to this Clause 5.4(iii) if Purchaser’s breach of this Agreement has prevented or materially delayed the consummation payment of the Transactions.
(iv) By the Seller (if the Seller is not in material breach of the Seller Warranties, covenants or agreements under this Agreement so as to cause any of the conditions set forth in Clause 3.2 and/or 3.3(i) not to be satisfied), upon written notice to the Purchaser, if there has been a material inaccuracy of any statement or warranty, or any unremedied material breach of a covenant or other agreement, of the Purchaser contained in this Agreement, which violation, breach or inaccuracy would cause any of the conditions set forth in Clause 3.1 and/or 3.3 not to be satisfied as of the Completion Date, and such violation, breach or inaccuracy has not been waived by the Seller or cured by the Purchaser within 20 (twenty) Business Days after receipt by the Purchaser of written notice thereof from the Seller or is not reasonably capable of being cured prior to the Long Stop Date.
(v) By the Purchaser (if the Purchaser is not in material breach of the Purchaser Warranties, covenants or agreements under this Agreement so as to cause any of the conditions set forth in Clause 3.1 and/or 3.3 not to be satisfied), upon written notice to the Seller, if there has been a material inaccuracy of any statement or warranty, or any unremedied material breach of a covenant or other agreement, of the Seller contained in this Agreement, which violation, breach or inaccuracy would cause any of the conditions set forth in Clauses 3.2 and/or 3.3(i) not to be satisfied as of the Completion Date, and such violation, breach or inaccuracy has not been waived by the Purchaser or cured by the Seller within 20 (twenty) Business Days after receipt by the Seller of written notice thereof from the Purchaser or is not reasonably capable of being cured prior to the Long Stop Date.
(vi) By the Seller or the Purchaser, upon written notice to the other, if a court of competent jurisdiction or any other Governmental Authority shall have issued a final, nonEstimated Intra-appealable order preventing or otherwise prohibiting the consummation of the Transactions.
5.5. If this Agreement is terminated prior to Completion Group Financing Payables in accordance with Clause 5.4 above,6.4(a).
(i) this Agreement 6.5 The repayments made pursuant to Clause 6.4 shall become void and of no further force and effect; provided, however, that the provisions of this Clause 5.5 and Clauses 1 (Definitions and Interpretation), 11 (Announcements and Confidentiality), 12 (Notices), 13 (Governing Law, Disputes and Jurisdiction), 14.1 (Entire Agreement), 14.6 (Variation), 14.7 (No Assignment), 14.8 (Waiver), 14.9 (Severability), 14.10 (Supersession) and 14.11 (Expenses) shall survive the termination of this Agreement indefinitely and that nothing herein shall relieve any Party from any liability for fraud or any breach of the provisions of this Agreement prior to such termination; and
(ii) if applicable, the Observer shall no longer be entitled to attend the meetings of the Board (or any committee thereof) and the nominees of the Purchaser appointed on the Board adjusted in accordance with Clause 6.2 7.4 when the Closing Statement becomes final and binding in accordance with Clause 7.2(a).
6.6 The Parties agree that notwithstanding Clause 6.1, if any Local Transfer Document is required to be notarised, the relevant Parties shall resign execute such document on the Completion Date at a mutually convenient location where a notary with immediate effectthe required qualification will be present.
Appears in 2 contracts
Sources: Sale and Purchase Agreement (Scotts Miracle-Gro Co), Sale and Purchase Agreement (Scotts Miracle-Gro Co)
Completion. 5.1. Subject to 9.1 Completion shall take place at the offices of NautaDutilh N.V. at Strawinskylaan 1999, Amsterdam on the last day of the month in which fulfilment or waiver of the conditions set out in Clauses 3.1clause 4 (Conditions to Completion) takes place, 3.2 except that where less than five Business Days remain between such fulfilment and 3.3service and the last day of the month, Completion shall take place on the Completion Date.
5.2. The obligations of each of the Parties under Clause 5.3 below are interdependent of each other. The Completion shall not occur unless all of the obligations specified in Clause 5.3, have been simultaneously complied with and are fully effective.
5.3. On the Completion Dateplace:
(iA) Subject to deductions pursuant to Clause 4.4, on the Purchaser shall remit last day of the Purchase Consideration (in immediately available funds) to the Seller’s Bank Account.following month; or
(iiB) The Seller shall (a) provide to its Depository Participant duly executed DP Instructions in the prescribed form for the transfer of the Sale Shares to the Demat Account of the Purchaser (details of which shall be provided to the Seller in writing as soon as practicable after the Execution Date); (b) procure its Depository Participant to duly acknowledge at such DP Instructions; (c) deliver a copy of such acknowledgement to the Purchaser; and (d) use best endeavours to procure credit of the Sale Shares to the Demat Account of the Purchaser.
(iii) The Seller shallother location, to the extent it is able to do so through exercise of its voting rights, procure that a Board meeting is held at which the following business shall be transacted:
(a) the appointment of directors nominated by the Purchaser on the Board shall be approved; and
(b) an extra-ordinary general meeting of the shareholders of the Company to approve the matters set out in Clause 5.3(iii)(a) and the amendment of the Articles of Association shall be convened.
5.4. This Agreement may be terminated on time or prior to the Completion Date as follows:
(i) By the mutual written consent of the Purchaser and the Seller.
(ii) By the Seller, upon written notice to the Purchaser, if the conditions set out in Clauses 3.1 and 3.3 have not been satisfied (or satisfied subject only to Completion where applicable) or waived (where applicable) on or before 270 (two hundred seventy) days from the Execution Date or such later date as may be mutually agreed between the Parties Sellers, it being understood that the transfers of the Shares and the JV Co Shares shall take place on Completion at the offices of the Notary by way of execution of the Deeds of Transfer before the Notary.
9.2 At Completion, the parties shall comply with their respective obligations in writing sub-clauses 2.1 to 2.3 (“Long Stop Date”in each case as applicable) and the Sellers shall do those things listed in Part A (Seller’s obligations) and Part D (Execution of Deeds of Transfer) of Schedule 2 (Completion arrangements); provided the Purchaser shall do, and Liberty Global shall procure that the Seller Purchaser does, those things listed in Part B (Purchaser’s obligations) of Schedule 2 (Completion arrangements); and the Guarantors shall not do those things listed in Part E (Guarantors’ obligations) of Schedule 2 (Completion arrangements). Completion shall take place in accordance with Part C (General) of Schedule 2 (Completion arrangements).
9.3 No party shall be entitled obliged to terminate this Agreement pursuant to this Clause 5.4(ii) if Seller’s breach of this Agreement has prevented or materially delayed the consummation complete any of the Transactions (which term for the purposes of this Clause 5.4(ii) shall not include the Financing);
(iii) By the Purchaser, upon written notice to the Seller, if the conditions transactions set out in Clauses 3.2 and 3.3 have not been satisfied (sub-clauses 2.1 to 2.3 or satisfied subject only to Completion where applicable) or waived (where applicable) on or before the Long Stop Date; provided that the Purchaser shall not be entitled to terminate this Agreement pursuant to this Clause 5.4(iii) if Purchaser’s breach of this Agreement has prevented or materially delayed the consummation of the Transactions.
(iv) By the Seller (if the Seller is not in material breach of the Seller Warranties, covenants or agreements under this Agreement so as to cause carry out any of the conditions steps set forth out in Clause Schedule 2 (Completion arrangements) unless sub-clauses 3.1 or 3.2 and/or 3.3(i(as applicable), 6.1, 6.2, 6.5(C) not and 6.6 or 6.7 (as applicable) have been complied with and irrevocable arrangements are in place for all such transactions and steps to be satisfied), upon written notice to completed by all relevant parties on the Purchaser, if there has been a material inaccuracy Completion Date in accordance with the sequence of any statement or warranty, or any unremedied material breach of a covenant or other agreement, of the Purchaser contained events set out in this Agreement. For the avoidance of doubt, which violation, breach or inaccuracy would cause any (A) both the beneficial and legal ownership of the conditions set forth in Clause 3.1 and/or 3.3 Liberty Global Target Company Shares and the Vodafone Target Company Shares will transfer to Purchaser at Completion and not to be satisfied as before and (B) both the beneficial and legal ownership of the JV Co Shares will transfer to Vodafone at Completion Date, and such violation, breach or inaccuracy has not been waived by the Seller or cured by the Purchaser within 20 (twenty) Business Days after receipt by the Purchaser of written notice thereof from the Seller or is not reasonably capable of being cured prior to the Long Stop Datebefore.
(v) By 9.4 If the Purchaser (if the Purchaser is not in material breach of the Purchaser Warranties, covenants or agreements under this Agreement so as to cause any of the conditions set forth in Clause 3.1 and/or 3.3 not to be satisfied), upon written notice to the Seller, if there has been a material inaccuracy of any statement or warranty, or any unremedied material breach of a covenant or other agreement, of the Seller contained in this Agreement, which violation, breach or inaccuracy would cause any of the conditions set forth in Clauses 3.2 and/or 3.3(i) not to be satisfied as of the Completion Date, and such violation, breach or inaccuracy has not been waived by the Purchaser or cured by the Seller within 20 (twenty) Business Days after receipt by the Seller of written notice thereof from the Purchaser or is not reasonably capable of being cured prior to the Long Stop Date.Estimated Vodafone Equalisation Consideration is:
(viA) By the Seller or the Purchasera positive number, upon written notice to the other, if a court of competent jurisdiction or any other Governmental Authority then Vodafone shall have issued a final, non-appealable order preventing or otherwise prohibiting the consummation of the Transactions.
5.5. If this Agreement is terminated prior to Completion in accordance with Clause 5.4 above,procure; or
(iB) this Agreement a negative number, then Liberty Global shall become void and of no further force and effect; provided, however, that the provisions of this Clause 5.5 and Clauses 1 (Definitions and Interpretation), 11 (Announcements and Confidentiality), 12 (Notices), 13 (Governing Law, Disputes and Jurisdiction), 14.1 (Entire Agreement), 14.6 (Variation), 14.7 (No Assignment), 14.8 (Waiver), 14.9 (Severability), 14.10 (Supersession) and 14.11 (Expenses) shall survive the termination of this Agreement indefinitely and that nothing herein shall relieve any Party from any liability for fraud or any breach of the provisions of this Agreement prior to such termination; and
(ii) if applicable, the Observer shall no longer be entitled to attend the meetings of the Board (or any committee thereof) and the nominees of the Purchaser appointed on the Board in accordance with Clause 6.2 shall resign with immediate effect.procure,
Appears in 2 contracts
Sources: Contribution and Transfer Agreement (Vodafone Group Public LTD Co), Contribution and Transfer Agreement (Liberty Global PLC)
Completion. 5.1. Subject to the conditions set out in Clauses 3.1, 3.2 and 3.3, 5.1 Completion under this Agreement shall take place at the offices of the Sellers on either the last Business Day of the month if the Notification Date is ten (10) or more Business Days prior to the last Business Day of such month of notification or on the Completion Datelast Business Day of the immediately succeeding month if the Notification Date is less than ten (10) Business Days prior to the last Business Day of such month of notification, or at such other location and/or at such other time as the Parties may agree in writing.
5.2. The obligations of each of the Parties under Clause 5.3 below are interdependent of each other. The Completion shall not occur unless all of the obligations specified in Clause 5.3, have been simultaneously complied with and are fully effective.
5.3. 5.2 On the Completion Date:
(i) Subject to deductions pursuant to Clause 4.4, the Purchaser shall remit the Purchase Consideration (in immediately available funds) to the Seller’s Bank Account.
(ii) The Seller shall (a) provide to its Depository Participant duly executed DP Instructions in the prescribed form for the transfer Date all but not part of the Sale Shares to the Demat Account of the Purchaser (details of which shall be provided to the Seller in writing as soon as practicable after the Execution Date); (b) procure its Depository Participant to duly acknowledge such DP Instructions; (c) deliver a copy of such acknowledgement to the Purchaser; and (d) use best endeavours to procure credit of the Sale Shares to the Demat Account of the Purchaser.
(iii) The Seller shall, to the extent it is able to do so through exercise of its voting rights, procure that a Board meeting is held at which the following business shall be transacted:
5.2.1 The Purchaser shall:
i. pay to the Sellers the Final Consideration, by means of telegraphic transfer in immediately available funds as directed by the Sellers for value in Dollars on such Completion Date;
j. deliver to the Sellers (ato the extent not already delivered prior to Completion) a copy of the appointment relevant guarantees, releases, consents, approvals, confirmations or waivers, if any, referred to in Clause 2.2 and obtained by or on behalf of the Purchaser;
k. deliver to the Sellers (to the extent not already delivered prior to Completion) a copy, certified as a true copy and in full force and effect by a director or the legal manager of the Purchaser, of (i) a resolution of the board of directors nominated by of the Purchaser authorising its entry into the transactions contemplated by this Agreement; and (ii) a Power of Attorney authorising a person or persons to sign this Agreement and the Assignment Documents on behalf of the Board shall be approvedPurchaser; and
(b) an extra-ordinary general meeting l. execute and deliver those of the shareholders Assignment Documents to which it is a signatory.
5.2.2 The Sellers shall, after confirmation of receipt of the Company to approve the matters set out in amounts payable under Clause 5.3(iii)(a) and the amendment of the Articles of Association shall be convened.
5.4. This Agreement may be terminated on or prior to the Completion Date as follows:
(i) By the mutual written consent of the Purchaser and the Seller.
(ii) By the Seller, upon written notice to the Purchaser, if the conditions set out in Clauses 3.1 and 3.3 have not been satisfied (or satisfied subject only to Completion where applicable) or waived (where applicable) on or before 270 (two hundred seventy) days from the Execution Date or such later date as may be mutually agreed between the Parties in writing (“Long Stop Date”); provided that the Seller shall not be entitled to terminate this Agreement pursuant to this Clause 5.4(ii) if Seller’s breach of this Agreement has prevented or materially delayed the consummation of the Transactions (which term for the purposes of this Clause 5.4(ii) shall not include the Financing);
(iii) By the Purchaser, upon written notice to the Seller, if the conditions set out in Clauses 3.2 and 3.3 have not been satisfied (or satisfied subject only to Completion where applicable) or waived (where applicable) on or before the Long Stop Date; provided that the Purchaser shall not be entitled to terminate this Agreement pursuant to this Clause 5.4(iii) if Purchaser’s breach of this Agreement has prevented or materially delayed the consummation of the Transactions.
(iv) By the Seller (if the Seller is not in material breach of the Seller Warranties, covenants or agreements under this Agreement so as to cause any of the conditions set forth in Clause 3.2 and/or 3.3(i) not to be satisfied5.2.1(a), upon written notice deliver to the Purchaser, if there has been a material inaccuracy of any statement or warranty, or any unremedied material breach of a covenant or other agreement, of the Purchaser contained in this Agreement, which violation, breach or inaccuracy would cause any of the conditions set forth in Clause 3.1 and/or 3.3 not to be satisfied as of the Completion Date, and such violation, breach or inaccuracy has not been waived by the Seller or cured by the Purchaser within 20 (twenty) Business Days after receipt by the Purchaser of written notice thereof from the Seller or is not reasonably capable of being cured prior to the Long Stop Date.
(v) By the Purchaser (if the Purchaser is not in material breach of the Purchaser Warranties, covenants or agreements under this Agreement so as to cause any of the conditions set forth in Clause 3.1 and/or 3.3 not to be satisfied), upon written notice to the Seller, if there has been a material inaccuracy of any statement or warranty, or any unremedied material breach of a covenant or other agreement, of the Seller contained in this Agreement, which violation, breach or inaccuracy would cause any of the conditions set forth in Clauses 3.2 and/or 3.3(i) extent not to be satisfied as of the Completion Date, and such violation, breach or inaccuracy has not been waived by the Purchaser or cured by the Seller within 20 (twenty) Business Days after receipt by the Seller of written notice thereof from the Purchaser or is not reasonably capable of being cured already delivered prior to the Long Stop Date.
(vi) By the Seller or the Purchaser, upon written notice to the other, if a court of competent jurisdiction or any other Governmental Authority shall have issued a final, non-appealable order preventing or otherwise prohibiting the consummation of the Transactions.
5.5. If this Agreement is terminated prior to Completion in accordance with Clause 5.4 above,
(i) this Agreement shall become void and of no further force and effect; provided, however, that the provisions of this Clause 5.5 and Clauses 1 (Definitions and Interpretation), 11 (Announcements and Confidentiality), 12 (Notices), 13 (Governing Law, Disputes and Jurisdiction), 14.1 (Entire Agreement), 14.6 (Variation), 14.7 (No Assignment), 14.8 (Waiver), 14.9 (Severability), 14.10 (Supersession) and 14.11 (Expenses) shall survive the termination of this Agreement indefinitely and that nothing herein shall relieve any Party from any liability for fraud or any breach of the provisions of this Agreement prior to such termination; and
(ii) if applicable, the Observer shall no longer be entitled to attend the meetings of the Board (or any committee thereof) and the nominees of the Purchaser appointed on the Board in accordance with Clause 6.2 shall resign with immediate effect.Completion):
Appears in 2 contracts
Sources: Hive in Agreement, Hive in Agreement (Endeavour International Corp)
Completion. 5.1. Subject to the conditions set out in Clauses 3.1, 3.2 and 3.3, 5.1 Completion under this Agreement shall take place on the Completion Date.
5.2. The obligations of each of the Parties under Clause 5.3 below are interdependent of each other. The Completion shall not occur unless within ten (10) Business Days after all of the obligations specified conditions referred to in Clause 5.3, 2.2 have been simultaneously complied with satisfied, at such location and are fully effectiveat such time as the Parties may agree.
5.3. 5.2 On the Completion Date:
(i) Subject to deductions pursuant to Clause 4.4Date all, the Purchaser shall remit the Purchase Consideration (in immediately available funds) to the Seller’s Bank Account.
(ii) The Seller shall (a) provide to its Depository Participant duly executed DP Instructions in the prescribed form for the transfer but not part only, of the Sale Shares to the Demat Account of the Purchaser (details of which shall be provided to the Seller in writing as soon as practicable after the Execution Date); (b) procure its Depository Participant to duly acknowledge such DP Instructions; (c) deliver a copy of such acknowledgement to the Purchaser; and (d) use best endeavours to procure credit of the Sale Shares to the Demat Account of the Purchaser.
(iii) The Seller shall, to the extent it is able to do so through exercise of its voting rights, procure that a Board meeting is held at which the following business shall be transacted:
5.2.1 The Seller shall deliver to the Purchaser (a) to the appointment extent not already delivered prior to Completion and/or already in the possession of the Purchaser):
5.2.1.1 the Assignment Documents duly and validly executed by all the signatory parties thereto other than the Purchaser;
5.2.1.2 a copy of the Secretary’s Consents and all other relevant consents, approvals or waivers, if any, referred to in Clause 2.2 and obtained by or on behalf of the Seller;
5.2.1.3 a copy, certified as a true copy and in full force and effect by a director or the secretary of the Seller, of a resolution of the board of directors nominated by of the Purchaser Seller authorising a person or persons to execute this Agreement and the Assignment Documents on behalf of the Board shall be approvedSeller; and
(b) an extra-ordinary general meeting of the shareholders of the Company to approve the matters set out 5.2.1.4 written confirmation in Clause 5.3(iii)(a) and the amendment of the Articles of Association shall be convened.
5.4. This Agreement may be terminated on or prior terms satisfactory to the Completion Date as follows:
(i) By Purchaser that the mutual written consent Seller has notified to the relevant insurers the interest of the Purchaser in all property, assets and rights associated with the Interests and the SellerLicensed Interest Documents.
(ii) By 5.2.2 The Purchaser shall:
5.2.2.1 pay to the Seller the sums specified in the Interim Completion Statement, subject to Clause 3.11, by means of telegraphic transfer in immediately available funds to the Seller’s Account for value in Sterlingon the Completion Date;
5.2.2.2 deliver to the Seller the Assignment Documents duly and validly executed by the Purchaser;
5.2.2.3 deliver to the Seller a copy of all relevant consents, upon written notice approvals, or waivers, if any, referred to in Clause 2.2 and obtained by or on behalf of the Purchaser; and
5.2.2.4 deliver to the Seller a copy, certified as a true copy and in full force and effect by a director or the secretary of the Purchaser, if the conditions set out in Clauses 3.1 and 3.3 have not been satisfied (or satisfied subject only to Completion where applicable) or waived (where applicable) on or before 270 (two hundred seventy) days from the Execution Date or such later date as may be mutually agreed between the Parties in writing (“Long Stop Date”); provided that the Seller shall not be entitled to terminate this Agreement pursuant to this Clause 5.4(ii) if Seller’s breach of this Agreement has prevented or materially delayed the consummation a resolution of the Transactions (which term for the purposes board of this Clause 5.4(ii) shall not include the Financing);
(iii) By the Purchaser, upon written notice to the Seller, if the conditions set out in Clauses 3.2 and 3.3 have not been satisfied (or satisfied subject only to Completion where applicable) or waived (where applicable) on or before the Long Stop Date; provided that the Purchaser shall not be entitled to terminate this Agreement pursuant to this Clause 5.4(iii) if Purchaser’s breach of this Agreement has prevented or materially delayed the consummation of the Transactions.
(iv) By the Seller (if the Seller is not in material breach of the Seller Warranties, covenants or agreements under this Agreement so as to cause any of the conditions set forth in Clause 3.2 and/or 3.3(i) not to be satisfied), upon written notice to the Purchaser, if there has been a material inaccuracy of any statement or warranty, or any unremedied material breach of a covenant or other agreement, directors of the Purchaser contained authorising a person or persons to execute this Agreement and the Assignment Documents on behalf of the Purchaser; and the Parties acknowledge and agree that all acts and transactions constituting Completion shall be regarded as a single transaction so that, at the option of the Party who is interested in the carrying out of the relevant act or transaction, no action or transaction shall be deemed to have taken place unless and until all other actions and transactions constituting Completion shall have taken place as provided in this Agreement, which violation, breach or inaccuracy would cause any . The Parties acknowledge the essential nature of this provision.
5.3 Each of the conditions set forth Parties shall and, if appropriate, shall ensure that its respective Affiliates shall execute such other documents and do all such other acts and things as may reasonably be required, in Clause 3.1 and/or 3.3 not order to be satisfied as effect the transfer of the Completion Date, and such violation, breach or inaccuracy has not been waived by the Seller or cured by Interests to the Purchaser within 20 (twenty) Business Days after receipt by and to implement the Purchaser transactions contemplated hereunder and otherwise to carry out the true intent of written notice thereof from the Seller or is not reasonably capable of being cured prior to the Long Stop Date.
(v) By the Purchaser (if the Purchaser is not in material breach of the Purchaser Warranties, covenants or agreements under this Agreement so as to cause any of the conditions set forth in Clause 3.1 and/or 3.3 not to be satisfied), upon written notice to the Seller, if there has been a material inaccuracy of any statement or warranty, or any unremedied material breach of a covenant or other agreement, of the Seller contained in this Agreement, which violation, breach or inaccuracy would cause any of the conditions set forth in Clauses 3.2 and/or 3.3(i) not to be satisfied as of the Completion Date, and such violation, breach or inaccuracy has not been waived by the Purchaser or cured by the Seller within 20 (twenty) Business Days after receipt by the Seller of written notice thereof from the Purchaser or is not reasonably capable of being cured prior to the Long Stop Date.
(vi) By the Seller or the Purchaser, upon written notice to the other, if a court of competent jurisdiction or any other Governmental Authority shall have issued a final, non-appealable order preventing or otherwise prohibiting the consummation of the Transactions.
5.5. If this Agreement is terminated prior to Completion in accordance with Clause 5.4 above,
(i) this Agreement shall become void and of no further force and effect; provided, however, that the provisions of this Clause 5.5 and Clauses 1 (Definitions and Interpretation), 11 (Announcements and Confidentiality), 12 (Notices), 13 (Governing Law, Disputes and Jurisdiction), 14.1 (Entire Agreement), 14.6 (Variation), 14.7 (No Assignment), 14.8 (Waiver), 14.9 (Severability), 14.10 (Supersession) and 14.11 (Expenses) shall survive the termination of this Agreement indefinitely and that nothing herein shall relieve any Party from any liability for fraud or any breach of the provisions of this Agreement prior to such termination; and
(ii) if applicable, the Observer shall no longer be entitled to attend the meetings of the Board (or any committee thereof) and the nominees of the Purchaser appointed on the Board in accordance with Clause 6.2 shall resign with immediate effect.
Appears in 2 contracts
Sources: Sale and Purchase Agreement, Sale and Purchase Agreement (Atp Oil & Gas Corp)
Completion. 5.1. Subject to the conditions set out in Clauses 3.1, 3.2 and 3.3, 10.1 Completion shall take place at the offices of ▇▇▇▇▇▇ N.V. in Amsterdam as soon as possible after the date on which the Completion Datelast Condition Precedent under clause 8.1 is satisfied or, where permitted, waived in writing by the relevant Party or Parties, save as the Seller and the Purchaser may agree otherwise in writing, which is expected to occur on or about five April 2012.
5.2. The obligations of each 10.2 Following the conclusion of the Parties under Clause 5.3 below are interdependent of each other. The Completion shall not occur unless all Economic Ownership Transfer Agreement and the execution of the obligations specified Deed of Assignment in Clause 5.3the Interim Period in accordance with clause 6.2, have been simultaneously complied the Business shall be transferred by the Seller to the Purchaser by means of the execution by one of the notaries of ▇▇▇▇▇▇ N.V. of a notarial deed of contribution in kind (akte van inbreng) (the “Deed of Contribution”) to be mutually agreed by the Seller and the Purchaser acting in good faith, pursuant to which the (class B) ordinary shares in the capital of the Purchaser underlying the uniQure DRs shall be issued to the Trust Foundation, with the Trust Foundation immediately subsequent issuing the uniQure DRs to the Seller. By means of the execution of the Deed of Contribution — as a consequence of which the Business shall be transferred — the Seller shall transfer to the Purchaser and are fully effective.
5.3. On the Purchaser shall accept from the Seller on the Completion Date:
(iA) Subject the Loan Notes and the Convertible Loan Note Agreement at a value equal to deductions pursuant the nominal value and accrued interest and transfer of contract — the Parties agree and acknowledge that any and all rights under the Loan Notes and the Convertible Loan Note Agreement to Clause 4.4convert any amount due under any Loan Note into shares in the Seller are terminated and extinguished as of the moment and by means of the execution of the Deed of Contribution;
(B) the Administration (also by giving the Purchaser possession (bezitsverschaffing) thereto and, if necessary, notification to third parties holding (parts of) the Administration for the Group);
(C) the Seller Loans at a value equal to the nominal value and accrued interest, in the event the Seller has not transferred the legal title to and economic ownership of these Seller Loans to the Subsidiaries between the Signing Date and the Completion Date, due to the existence of materially adverse consequences for the Seller or the Subsidiaries; and
(D) the Sale Shares.
10.3 To transfer the Business, on the Completion Date the Purchaser shall remit assume from the Purchase Consideration (in immediately available funds) Seller and the Seller shall transfer to the Seller’s Bank AccountPurchaser the Guarantees, whilst the Seller shall forthwith upon request of the Purchaser request the creditors of the Guarantees in writing for their consent to the transfer of the Guarantees to the Purchaser.
(ii) The 10.4 To the extent any Employees are employed by Seller shall (a) provide and not by the Subsidiaries and have not been transferred to its Depository Participant duly executed DP Instructions in the prescribed form for Purchaser on the Completion Date as a result of the transfer of the Sale Shares to the Demat Account of the Purchaser such Employees (details of which shall be provided to the Seller in writing as soon as practicable after the Execution Date); (b) procure its Depository Participant to duly acknowledge such DP Instructions; (c) deliver a copy of such acknowledgement to the Purchaser; and (d) use best endeavours to procure credit of the Sale Shares to the Demat Account of the Purchaser.
(iii) The Seller shall, to the extent it is able to do so through exercise of its voting rights, procure that a Board meeting is held at which the following business shall be transacted:
(a) the appointment of directors nominated by the Purchaser on the Board shall be approved; and
(b) an extra-ordinary general meeting of the shareholders of the Company to approve the matters set out in Clause 5.3(iii)(a) and the amendment of rights and obligations under the Articles of Association shall be convened.
5.4. This Agreement may be terminated on or prior to the Completion Date as follows:
(i) By the mutual written consent of the Purchaser and the Seller.
(ii) By the Seller, upon written notice to the Purchaser, if the conditions set out employment agreements with such Employees in Clauses 3.1 and 3.3 have not been satisfied (or satisfied subject only to Completion where applicable) or waived (where applicable) on or before 270 (two hundred seventy) days from the Execution Date or such later date as may be mutually agreed between the Parties in writing (“Long Stop Date”); provided that the Seller shall not be entitled to terminate this Agreement pursuant to this Clause 5.4(ii) if Seller’s breach of this Agreement has prevented or materially delayed the consummation of the Transactions (which term for the purposes of this Clause 5.4(ii) shall not include the Financing);
(iii) By the Purchaser, upon written notice to the Seller, if the conditions set out in Clauses 3.2 and 3.3 have not been satisfied (or satisfied subject only to Completion where applicable) or waived (where applicable) on or before the Long Stop Date; provided that the Purchaser shall not be entitled to terminate this Agreement pursuant to this Clause 5.4(iii) if Purchaser’s breach of this Agreement has prevented or materially delayed the consummation of the Transactions.
(iv) By the Seller (if the Seller is not in material breach of the Seller Warranties, covenants or agreements under this Agreement so as to cause any of the conditions set forth in Clause 3.2 and/or 3.3(i) not to be satisfied), upon written notice to the Purchaser, if there has been a material inaccuracy of any statement or warranty, or any unremedied material breach of a covenant or other agreement, of the Purchaser contained in this Agreement, which violation, breach or inaccuracy would cause any of the conditions set forth in Clause 3.1 and/or 3.3 not to be satisfied as of force at the Completion Date, and such violation, breach or inaccuracy has not been waived by the Seller or cured by ) will be transferred to the Purchaser within 20 by operation of law as a result of transfer of undertaking (twentyovergang van onderneming) Business Days after receipt by the Purchaser of written notice thereof from the Seller or is not reasonably capable of being cured prior to the Long Stop Date.
(v) By the Purchaser (if the Purchaser is not in material breach of the Purchaser Warranties, covenants or agreements under this Agreement so as to cause any of the conditions set forth in Clause 3.1 and/or 3.3 not to be satisfied), upon written notice to the Seller, if there has been a material inaccuracy of any statement or warranty, or any unremedied material breach of a covenant or other agreement, of the Seller contained in this Agreement, which violation, breach or inaccuracy would cause any of the conditions set forth in Clauses 3.2 and/or 3.3(i) not to be satisfied as of the Completion Date, and such violation, breach or inaccuracy has not been waived by the Purchaser or cured by the Seller within 20 (twenty) Business Days after receipt by the Seller of written notice thereof from the Purchaser or is not reasonably capable of being cured prior to the Long Stop Date.
(vi) By the Seller or the Purchaser, upon written notice to the other, if a court of competent jurisdiction or any other Governmental Authority shall have issued a final, non-appealable order preventing or otherwise prohibiting the consummation of the Transactions.
5.5. If this Agreement is terminated prior to Completion in accordance with Clause 5.4 above,section 7:663 et sec. DCC.
(i) this Agreement 10.5 The Purchaser shall become void and of no further force and effect; provided, however, that procure the provisions of this Clause 5.5 and Clauses 1 (Definitions and Interpretation), 11 (Announcements and Confidentiality), 12 (Notices), 13 (Governing Law, Disputes and Jurisdiction), 14.1 (Entire Agreement), 14.6 (Variation), 14.7 (No Assignment), 14.8 (Waiver), 14.9 (Severability), 14.10 (Supersession) and 14.11 (Expenses) shall survive due compliance with section 2:204b DCC in relation to the termination of this Agreement indefinitely and that nothing herein shall relieve any Party from any liability for fraud or any breach contribution in kind by means of the provisions Deed of this Agreement prior to such termination; and
(ii) if applicableContribution, including the Observer shall no longer be entitled to attend the meetings preparation of the Board (or any committee thereof) description of the contribution and the nominees preparation of the Purchaser appointed on the Board in accordance with Clause 6.2 shall resign with immediate effectauditor’s statement.
Appears in 2 contracts
Sources: Business Acquisition Agreement (uniQure B.V.), Business Acquisition Agreement (uniQure B.V.)
Completion. 5.1. 4.1 Subject to the conditions set out in Clauses 3.1, 3.2 satisfaction or waiver of the Conditions Precedent [and 3.3, Completion Clause 4.5] completion of the sale and purchase of the Asset shall take place on the Completion Date.
5.2. The obligations of each of the Parties under Clause 5.3 below are interdependent of each other. The Completion shall not occur unless all of the obligations specified in Clause 5.3, have been simultaneously complied with and are fully effective.
5.3. On Date at the Completion Date:
(i) Subject to deductions pursuant to Clause 4.4, Venue when the Purchaser following shall remit the Purchase Consideration (in immediately available funds) to the Seller’s Bank Account.
(ii) The Seller shall (a) provide to its Depository Participant duly executed DP Instructions take place in the prescribed form for the transfer of the Sale Shares to the Demat Account of the Purchaser (details of which shall be provided to the Seller in writing as soon as practicable after the Execution Date); (b) procure its Depository Participant to duly acknowledge such DP Instructions; (c) deliver a copy of such acknowledgement to the Purchaser; and (d) use best endeavours to procure credit of the Sale Shares to the Demat Account of the Purchaser.
(iii) The Seller shall, to the extent it is able to do so through exercise of its voting rights, procure that a Board meeting is held at which the following business shall be transacted:order:-
(a) the appointment of directors nominated by the Purchaser on the Board shall be approved; and
(b) an extra-ordinary general meeting of the shareholders of the Company to approve the matters set out in Clause 5.3(iii)(a) and the amendment of the Articles of Association shall be convened.
5.4. This Agreement may be terminated on or prior to the Completion Date as follows:Seller shall:-
(i) By deliver to the mutual written consent Purchaser copies of the Purchaser and the Seller.Secretary of State Consents;
(ii) By the Seller, upon written notice deliver to the Purchaser, if Purchaser the conditions set out in Clauses 3.1 and 3.3 have not been satisfied (or satisfied subject only to Completion where applicable) or waived (where applicable) on or before 270 (two hundred seventy) days from the Execution Date or such later date as may be mutually agreed between the Parties in writing (“Long Stop Date”); provided that the Seller shall not be entitled to terminate this Agreement pursuant to this Clause 5.4(ii) if Seller’s breach of this Agreement has prevented or materially delayed the consummation Documents duly executed by all of the Transactions (which term for parties thereto other than the purposes Secretary of this Clause 5.4(ii) shall not include State and the Financing)Purchaser;
(iii) By deliver to the PurchaserPurchaser a copy, upon certified as a true copy (in accordance with section 3 of the Powers of Attorney Act 1971) of the Power of Attorney authorising the execution of the Completion Documents on behalf of the Seller; and [(iv) deliver written notice confirmation that the Condition Precedent referred to at Clause 2.2.4 has been fulfilled.]
(b) the Purchaser shall:-
(i) pay to the Seller the Consideration together [with interest accrued pursuant to Clause 3.2] by means of a direct transfer in cleared readily available funds to the Seller's Account no later than close of business London time, if on the conditions set out Completion Date;
(ii) execute all the Completion Documents to which it is to be party and deliver copies thereof, certified as true copies, to the Seller;
(iii) deliver to the Seller a copy, certified as a true copy [(in Clauses 3.2 and 3.3 have not been satisfied (or satisfied subject only to Completion where applicable) or waived (where applicable) on or before the Long Stop Date; provided that the Purchaser shall not be entitled to terminate this Agreement pursuant to this Clause 5.4(iii) if Purchaser’s breach of this Agreement has prevented or materially delayed the consummation accordance with section 3 of the Transactions.Powers of Attorney Act 1971) of the Power of Attorney] authorising the execution of the Completion Documents on behalf of the Purchaser;
(iv) By [deliver to the Seller (if Operator a letter of credit in the Seller is not in material breach of form and amount agreed with the Seller Warranties, covenants or agreements under this Agreement so as to cause any of the conditions set forth in Clause 3.2 and/or 3.3(i) not to be satisfied), upon written notice Operator to the Purchaser, if there has been a material inaccuracy of any statement or warranty, or any unremedied material breach of a covenant or other agreement, of the Purchaser contained in this Agreement, which violation, breach or inaccuracy would cause any of the conditions set forth in Clause 3.1 and/or 3.3 not to be satisfied as of the Completion Date, and such violation, breach or inaccuracy has not been waived by the Seller or cured by the Purchaser within 20 (twenty) Business Days after receipt by the Purchaser of written notice thereof from the Seller or is not reasonably capable of being cured prior 's liability pursuant to the Long Stop Date.Decommissioning Agreement]; and
(v) By deliver to the Seller the Deed of Indemnity, duly executed by the Purchaser (if and [ ].
4.2 Each of the Parties shall, and shall procure that its respective Affiliates shall, execute such other documents and do all such other acts and things as may reasonably be required in order to effect the disposal of the Asset to the Purchaser is not in material breach and otherwise carry out the true intent of this Agreement.
4.3 The Seller shall deliver to the Purchaser Warrantiesthe Asset Data, covenants or agreements under this Agreement so as to cause any of the conditions set forth in Clause 3.1 and/or 3.3 not to be satisfied)Asset Documents, upon written notice the Data Room Documents and such other documentation relevant to the Seller, if there has been a material inaccuracy of any statement or warranty, or any unremedied material breach of a covenant or other agreement, of Asset as the Seller contained in this Agreement, which violation, breach or inaccuracy would cause any of Purchaser may reasonably request as soon as practicable following the conditions set forth in Clauses 3.2 and/or 3.3(i) not to be satisfied as of Completion Date but no later than 30 days following the Completion Date, and such violation, breach or inaccuracy has not been waived by the Purchaser or cured by the Seller within 20 (twenty) Business Days after receipt by the Seller of written notice thereof from the Purchaser or is not reasonably capable of being cured prior to the Long Stop Date.
(vi) By the Seller 4.4 If Completion does not take place on or the Purchaserbefore 2400 hours on [ ], upon either Party may terminate this Agreement by written notice to the other, if a court to be without prejudice to rights and obligation accrued prior to termination.]
4.5 [If, prior to Completion, material loss or damage is sustained to any of competent jurisdiction or any other Governmental Authority the Asset Property, the Purchaser shall not be obliged to complete the sale and purchase of the Asset and shall have issued a final, non-appealable order preventing or otherwise prohibiting the consummation of right by notice in writing to the TransactionsSeller to terminate this Agreement without prejudice to rights and obligations accrued prior to termination.] [See 2.2.4].
5.5. If 4.6 [Completion under this Agreement is terminated prior to Completion in accordance with Clause 5.4 above,
(i) this and completion under the Connected Agreement shall become void and of no further force and effect; provided, however, that the provisions of this Clause 5.5 and Clauses 1 (Definitions and Interpretation), 11 (Announcements and Confidentiality), 12 (Notices), 13 (Governing Law, Disputes and Jurisdiction), 14.1 (Entire Agreement), 14.6 (Variation), 14.7 (No Assignment), 14.8 (Waiver), 14.9 (Severability), 14.10 (Supersession) and 14.11 (Expenses) shall survive the termination of this Agreement indefinitely and that nothing herein shall relieve any Party from any liability for fraud or any breach of the provisions of this Agreement prior to such termination; and
(ii) if applicable, the Observer shall no longer be entitled to attend the meetings of the Board (or any committee thereof) and the nominees of the Purchaser appointed on the Board in accordance with Clause 6.2 shall resign with immediate effecttake place simultaneously.]
Appears in 2 contracts
Sources: Sale and Purchase Agreement, Sale and Purchase Agreement
Completion. 5.1. 5.1 Subject to fulfilment (or waiver by the conditions set out in Clauses 3.1, 3.2 and 3.3Purchaser) of the Conditions, Completion shall take place at 10:00 a.m. on the Completion Date, at 20/F, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇-▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇ (or at such other place and time as may be agreed by the Parties in writing) when all (but not some only) of the events described in this Clause 5 shall occur.
5.2. The 5.2 At Completion, the Vendor and the Vendor Guarantor shall deliver to the Purchaser:
5.2.1 duly executed transfer form(s) in respect of all of the Sale Shares in favour of the Purchaser or its wholly owned subsidiary referred to in Clause 2 designated by the Purchaser or the nominee(s) of either of them together with (in respect of the relevant physical Sale Shares) the relative share certificate(s) and/or (in respect of the relevant Sale Shares held in CCASS) the relevant instructions to the relevant CCASS participant(s) to effect the transfer(s) of the relevant Sale Shares through CCASS to the Purchaser or its wholly owned subsidiary referred to in Clause 2 designated by the Purchaser or such person(s) having an account(s) with CCASS as may be notified in writing by the Purchaser to the Vendor at least 2 Business Days prior to the Completion Date;
5.2.2 certified copies of the minutes of the meetings of directors, or the written approvals of the directors (as the case may be), of each of the Vendor and the Vendor Guarantor required to authorise the execution and completion of this Agreement by the Vendor and the Vendor Guarantor, and the performance by the Vendor and the Vendor Guarantor of their respective obligations hereunder;
5.2.3 legal opinions from legal counsel for the Vendor and the Vendor Guarantor in their respective jurisdictions of incorporation, confirming that the Vendor and the Vendor Guarantor are each validly incorporated and have the capacity to enter into this Agreement and that this Agreement constitutes the legal, valid and enforceable obligations of each of the Parties under Clause 5.3 below are interdependent of each other. The Completion shall not occur unless all of the obligations specified in Clause 5.3, have been simultaneously complied with and are fully effective.them; and
5.3. On the Completion Date:
(i) Subject to deductions pursuant to Clause 4.4, the Purchaser shall remit the Purchase Consideration (in immediately available funds) to the Seller’s Bank Account.
(ii) The Seller shall (a) provide to its Depository Participant duly executed DP Instructions in the prescribed form for 5.2.4 if Hong Kong stamp duty is payable on the transfer of the Sale Shares to the Demat Account Shares, a cheque drawn in favour of "The Government of the Purchaser (details Hong Kong Special Administrative Region" in the amount of which shall be provided to the Seller Vendor's 50% share of the estimated stamp duty payable in writing as soon as practicable after respect of the Execution Date); (b) procure its Depository Participant to duly acknowledge such DP Instructions; (c) deliver a copy of such acknowledgement to the Purchaser; sale and (d) use best endeavours to procure credit purchase of the Sale Shares to the Demat Account of the PurchaserShares.
(iii) The Seller shall, to the extent it is able to do so through exercise of its voting rights, procure that a Board meeting is held at which the following business shall be transacted:
(a) the appointment of directors nominated by the Purchaser on the Board shall be approved; and
(b) an extra-ordinary general meeting of the shareholders of the Company to approve the matters set out in Clause 5.3(iii)(a) and the amendment of the Articles of Association shall be convened.
5.4. This Agreement may be terminated on or prior to the Completion Date as follows:
(i) By the mutual written consent of the Purchaser and the Seller.
(ii) By the Seller, upon written notice to the Purchaser, if the conditions set out in Clauses 3.1 and 3.3 have not been satisfied (or satisfied subject only to Completion where applicable) or waived (where applicable) on or before 270 (two hundred seventy) days from the Execution Date or such later date as may be mutually agreed between the Parties in writing (“Long Stop Date”); provided that the Seller shall not be entitled to terminate this Agreement pursuant to this Clause 5.4(ii) if Seller’s breach of this Agreement has prevented or materially delayed the consummation of the Transactions (which term for the purposes of this Clause 5.4(ii) shall not include the Financing);
(iii) By the Purchaser, upon written notice to the Seller, if the conditions set out in Clauses 3.2 and 3.3 have not been satisfied (or satisfied subject only to Completion where applicable) or waived (where applicable) on or before the Long Stop Date; provided that the Purchaser shall not be entitled to terminate this Agreement pursuant to this Clause 5.4(iii) if Purchaser’s breach of this Agreement has prevented or materially delayed the consummation of the Transactions.
(iv) By the Seller (if the Seller is not in material breach of the Seller Warranties, covenants or agreements under this Agreement so as to cause any of the conditions set forth in Clause 3.2 and/or 3.3(i) not to be satisfied), upon written notice to the Purchaser, if there has been a material inaccuracy of any statement or warranty, or any unremedied material breach of a covenant or other agreement, of the Purchaser contained in this Agreement, which violation, breach or inaccuracy would cause any of the conditions set forth in Clause 3.1 and/or 3.3 not to be satisfied as of the Completion Date, and such violation, breach or inaccuracy has not been waived by the Seller or cured by the Purchaser within 20 (twenty) Business Days after receipt by the Purchaser of written notice thereof from the Seller or is not reasonably capable of being cured prior to the Long Stop Date.
(v) By the Purchaser (if the Purchaser is not in material breach of the Purchaser Warranties, covenants or agreements under this Agreement so as to cause any of the conditions set forth in Clause 3.1 and/or 3.3 not to be satisfied), upon written notice to the Seller, if there has been a material inaccuracy of any statement or warranty, or any unremedied material breach of a covenant or other agreement, of the Seller contained in this Agreement, which violation, breach or inaccuracy would cause any of the conditions set forth in Clauses 3.2 and/or 3.3(i) not to be satisfied as of the Completion Date, and such violation, breach or inaccuracy has not been waived by the Purchaser or cured by the Seller within 20 (twenty) Business Days after receipt by the Seller of written notice thereof from the Purchaser or is not reasonably capable of being cured prior to the Long Stop Date.
(vi) By the Seller or the Purchaser, upon written notice to the other, if a court of competent jurisdiction or any other Governmental Authority shall have issued a final, non-appealable order preventing or otherwise prohibiting the consummation of the Transactions.
5.5. If this Agreement is terminated prior to Completion in accordance with Clause 5.4 above,
(i) this Agreement shall become void and of no further force and effect; provided, however, that the provisions of this Clause 5.5 and Clauses 1 (Definitions and Interpretation), 11 (Announcements and Confidentiality), 12 (Notices), 13 (Governing Law, Disputes and Jurisdiction), 14.1 (Entire Agreement), 14.6 (Variation), 14.7 (No Assignment), 14.8 (Waiver), 14.9 (Severability), 14.10 (Supersession) and 14.11 (Expenses) shall survive the termination of this Agreement indefinitely and that nothing herein shall relieve any Party from any liability for fraud or any breach of the provisions of this Agreement prior to such termination; and
(ii) if applicable, the Observer shall no longer be entitled to attend the meetings of the Board (or any committee thereof) and the nominees of the Purchaser appointed on the Board in accordance with Clause 6.2 shall resign with immediate effect.
Appears in 2 contracts
Sources: Sale and Purchase of Shares Agreement (PCCW LTD), Agreement for the Sale and Purchase of Shares (PCCW LTD)
Completion. 5.1. Subject to the conditions set out in Clauses 3.1, 3.2 and 3.3, 4.1 Completion shall take place on on, and in any event by no later than the first Business Day immediately after, the date of ATA Completion Dateat the offices of ▇▇▇▇▇▇▇▇▇ and May at ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇ (or at such other place as the parties may agree).
5.2. The obligations 4.2 On or before the date of each Completion, the Company shall procure that a meeting of the Parties under Clause 5.3 below are interdependent of each other. The Completion Board shall not occur unless all of be held at which the obligations specified in Clause 5.3, have been simultaneously complied with Board will approve and are fully effective.
5.3. On the Completion Dateauthorise:
(ia) Subject the issue and allotment of the Subscription Shares, credited as fully paid, to deductions pursuant the Investor, free from Encumbrances and ranking pari passu in all respects with the existing Shares;
(b) the entry of the Investor’s name in the Company’s register of members as holder of the Subscription Shares; and
(c) the Company Secretary to Clause 4.4, file all appropriate resolutions and forms with the Purchaser Registrar of Companies within the time limits prescribed for filing each of them.
4.3 On the date of Completion:
(a) the Investor shall remit the Purchase Consideration (pay an amount in cash in immediately available funds) funds equal to the Seller’s Bank Account.
(ii) The Seller shall (a) provide to its Depository Participant duly executed DP Instructions in the prescribed form for the transfer of the Sale Shares Subscription Amount to the Demat Account of Company by electronic transfer to the Purchaser Company’s bank account (details of which shall be provided to the Seller Investor in writing as soon as practicable after at least 5 Business Days prior to Completion) and payment made in accordance with this sub-clause 4.3(a) shall discharge the Execution Date); (b) procure its Depository Participant to duly acknowledge such DP Instructions; (c) deliver a copy of such acknowledgement to the Purchaser; and (d) use best endeavours to procure credit obligations of the Sale Shares to the Demat Account of the Purchaser.
Investor under clause 2.1 (iii) The Seller shall, to the extent it is able to do so through exercise of its voting rights, procure that a Board meeting is held at which the following business shall be transacted:
(a) the appointment of directors nominated by the Purchaser on the Board shall be approvedSubscription); and
(b) an extra-ordinary general meeting of the shareholders of the Company to approve the matters set out in Clause 5.3(iii)(a) and the amendment of the Articles of Association shall be convened.
5.4. This Agreement may be terminated on or prior to the Completion Date as followsshall:
(i) By deliver to the mutual written consent Investor a copy of the Purchaser and the Seller.
(ii) By the Seller, upon written notice to the Purchaser, if the conditions set out in Clauses 3.1 and 3.3 have not been satisfied (or satisfied subject only to Completion where applicable) or waived (where applicable) on or before 270 (two hundred seventy) days from the Execution Date or such later date as may be mutually agreed between the Parties in writing (“Long Stop Date”); provided that the Seller shall not be entitled to terminate this Agreement pursuant to this Clause 5.4(ii) if Seller’s breach of this Agreement has prevented or materially delayed the consummation minutes of the Transactions (which term for the purposes of this Clause 5.4(ii) shall not include the Financing);
(iii) By the Purchaser, upon written notice to the Seller, if the conditions set out in Clauses 3.2 and 3.3 have not been satisfied (or satisfied subject only to Completion where applicable) or waived (where applicable) on or before the Long Stop Date; provided that the Purchaser shall not be entitled to terminate this Agreement pursuant to this Clause 5.4(iii) if Purchaser’s breach of this Agreement has prevented or materially delayed the consummation meeting of the Transactions.
(iv) By the Seller (if the Seller is not Board referred to in material breach of the Seller Warranties, covenants or agreements under this Agreement so as to cause any of the conditions set forth in Clause 3.2 and/or 3.3(i) not to be satisfied), upon written notice to the Purchaser, if there has been a material inaccuracy of any statement or warranty, or any unremedied material breach of a covenant or other agreement, of the Purchaser contained in this Agreement, which violation, breach or inaccuracy would cause any of the conditions set forth in Clause 3.1 and/or 3.3 not to be satisfied as of the Completion Date, and such violation, breach or inaccuracy has not been waived by the Seller or cured by the Purchaser within 20 (twenty) Business Days after receipt by the Purchaser of written notice thereof from the Seller or is not reasonably capable of being cured prior to the Long Stop Date.
(v) By the Purchaser (if the Purchaser is not in material breach of the Purchaser Warranties, covenants or agreements under this Agreement so as to cause any of the conditions set forth in Clause 3.1 and/or 3.3 not to be satisfied), upon written notice to the Seller, if there has been a material inaccuracy of any statement or warranty, or any unremedied material breach of a covenant or other agreement, of the Seller contained in this Agreement, which violation, breach or inaccuracy would cause any of the conditions set forth in Clauses 3.2 and/or 3.3(i) not to be satisfied as of the Completion Date, and such violation, breach or inaccuracy has not been waived by the Purchaser or cured by the Seller within 20 (twenty) Business Days after receipt by the Seller of written notice thereof from the Purchaser or is not reasonably capable of being cured prior to the Long Stop Date.
(vi) By the Seller or the Purchaser, upon written notice to the other, if a court of competent jurisdiction or any other Governmental Authority shall have issued a final, non-appealable order preventing or otherwise prohibiting the consummation of the Transactions.
5.5. If this Agreement is terminated prior to Completion in accordance with Clause 5.4 above,
(i) this Agreement shall become void and of no further force and effect; provided, however, that the provisions of this Clause 5.5 and Clauses 1 (Definitions and Interpretation), 11 (Announcements and Confidentiality), 12 (Notices), 13 (Governing Law, Disputes and Jurisdiction), 14.1 (Entire Agreement), 14.6 (Variation), 14.7 (No Assignment), 14.8 (Waiver), 14.9 (Severability), 14.10 (Supersession) and 14.11 (Expenses) shall survive the termination of this Agreement indefinitely and that nothing herein shall relieve any Party from any liability for fraud or any breach of the provisions of this Agreement prior to such terminationclause 4.2; and
(ii) if applicableprocure the crediting of the Subscription Shares to the CREST account of the Investor as shall have been notified to the Company by the Investor in writing at least three (3) Business Days prior to Completion unless the Investor has served notice pursuant to clause 2.3(b), when in such circumstances it shall execute and deliver to the Investor a share certificate in respect of the Subscription Shares.
4.4 The Company shall procure that Admission occurs on the Business Day next following the date of Completion.
4.5 The Company shall procure that, promptly after Completion, the Observer shall no longer be entitled to attend Investor is registered as the meetings holder of the Board (or any committee thereof) and the nominees of the Purchaser appointed on the Board Subscription Shares in accordance with Clause 6.2 regulation 20 of the CREST Regulations unless the Investor has served notice pursuant to clause 2.3(b), when in such circumstances it shall resign with immediate effectenter the name of the Investor in the register of members in respect of the Subscription Shares.
Appears in 2 contracts
Sources: Share Subscription Agreement, Share Subscription Agreement (CSR PLC)
Completion. 5.1. (A) Subject to the terms and conditions set out in Clauses 3.1, 3.2 and 3.3of this Agreement, Completion shall take place at the offices of Niesar & ▇▇▇▇▇ LLP, 90 New ▇▇▇▇▇▇▇▇▇▇ Street, 9 Floor, ▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ on October 26, 2009 or such other place or date as the Completion Date.
5.2. The obligations of each Parties hereto may mutually agree in writing, when, except as indicated below, all but not part only of the Parties under Clause 5.3 business referred to below are interdependent of each other. The Completion shall not occur unless all of the obligations specified in Clause 5.3, have been simultaneously complied with and are fully effective.
5.3. On the Completion Datebe transacted:
(i) Subject to deductions pursuant to Clause 4.4, the Purchaser shall remit the Purchase Consideration (in immediately available funds) deliver to the Seller’s Bank Account.Seller a copy of the certificate of incorporation and the by-laws (or other constitutional documents) of the Purchaser and minutes of a meeting of the board of directors or other governing body of the Purchaser approving the execution of this Agreement and issuance of the Stock Consideration by the Purchaser and the performance of the Purchaser's obligations under this Agreement certified as true, complete and correct copies by a director or the secretary of the Purchaser;
(ii) The the Seller shall (a) provide deliver to its Depository Participant the Purchaser a transfer of the Sale Shares, in the agreed form, duly executed DP Instructions in favour of the prescribed form for Purchaser together with the share certificates in respect of the Sale Shares;
(iii) the Seller shall cause a board meeting of the Company to be held at which the Seller shall resign as director of the Company with effect from the later of the date of Completion. Alternatively, such action may be taken by execution of a letter of resignation of the sole director of the Company, with effect from the later of the date of Completion;
(iv) the Seller shall cause a board meeting of the Company to be held at which the transfer of the Sale Shares shall, subject to the Demat Account relevant Instrument of Transfer being duly stamped be passed for registration and registered and the Company shall issue and deliver to the Purchaser a new share certificate representing the Sale Shares. Alternatively, such action may be taken by execution of an action by written consent of the sole director of the Company;
(v) the Seller shall deliver to the Purchaser the written resignation as director of the Company in the agreed form of the directors referred to in (details iii) above;
(vi) the statutory books, books of account, title deeds, all insurance policies and receipts and other records and contracts and licenses and other documents, chops, seals and cheque books and other items belonging or relating to the Company as may be requested by the Purchaser and which are in the possession and control of the Seller;
(vii) the Purchaser shall pay to the Seller (or as the Seller may direct by written notice) US$300,000.00 in cash in immediately available funds in part payment and consideration for the sale and purchase of the Sale Shares, by electronic transfer to such bank account(s) as may be provided notified by the Seller to the Purchaser in writing not less than 3 Business Days before the Completion Date (and if more than one such bank account is so notified, in such proportions as the Seller may specify in such notification) or by way of a bank draft issued by a licensed bank in USA;
(viii) the Purchaser shall issue and deliver a promissory note in the sum of US$60,000.00 in favour of the Seller payable on the 30th day of June 2010;
(ix) the Purchaser shall issue and deliver to the Seller share certificate, representing the Stock Consideration, issued and fully paid and duly registered in the name of the Seller;
(x) the Seller shall pay to the Purchaser in cash in immediately available funds by electronic transfer to such bank account(s) as may be notified by the Purchaser to the Seller in writing as soon as practicable after the Execution Date); (b) procure its Depository Participant to duly acknowledge such DP Instructions; (c) deliver a copy of such acknowledgement to the Purchaser; and (d) use best endeavours to procure credit of the Sale Shares to the Demat Account of the Purchaser.
(iii) The Seller shall, to the extent it is able to do so through exercise of its voting rights, procure that a Board meeting is held at which the following business shall be transacted:
(a) the appointment of directors nominated by the Purchaser on the Board shall be approved; and
(b) an extra-ordinary general meeting of the shareholders of the Company to approve the matters set out in Clause 5.3(iii)(a) and the amendment of the Articles of Association shall be convened.
5.4. This Agreement may be terminated on or prior to not less than 3 Business Days before the Completion Date as follows:
(i) By the mutual written consent or by way of a bank draft drawn on a licensed bank in USA in favour of the Purchaser and the Seller.
(ii) By the Seller, upon written notice to the Purchaser, if the conditions set out in Clauses 3.1 and 3.3 have not been satisfied (or satisfied subject only to Completion where applicable) or waived (where applicable) on or before 270 (two hundred seventy) days from the Execution Date or such later date as may be mutually agreed between the Parties in writing (“Long Stop Date”); provided that Government of USA an amount representing any stamp duty payable by the Seller shall not be entitled to terminate this Agreement pursuant to this Clause 5.4(ii) if Seller’s breach of this Agreement has prevented or materially delayed the consummation of the Transactions (which term for the purposes of this Clause 5.4(ii) shall not include the Financing3(C);
(iiixi) By the Purchaser, upon written notice ▇▇▇▇▇▇▇ ▇▇▇▇▇ shall pay to the Seller, if the conditions set out Purchaser US$15,000.00 in Clauses 3.2 and 3.3 have not been satisfied (or satisfied subject only to Completion where applicable) or waived (where applicable) on or before the Long Stop Date; provided that the Purchaser shall not be entitled to terminate this Agreement pursuant to this Clause 5.4(iii) if Purchaser’s breach cash in immediately available funds by way of this Agreement has prevented or materially delayed the consummation of the Transactions.a bank draft issued by a licensed bank in USA;
(ivxii) By the Seller (if the Seller is not in material breach of the Seller Warranties, covenants or agreements under this Agreement so as to cause any of the conditions set forth in Clause 3.2 and/or 3.3(i) not to be satisfied), upon written notice to the Purchaser, if there has been a material inaccuracy of any statement or warranty, or any unremedied material breach of a covenant or other agreement, of the Purchaser contained in this Agreement, which violation, breach or inaccuracy would cause any of the conditions set forth in Clause 3.1 and/or 3.3 not to be satisfied as within 30 days of the Completion Date, and such violation▇▇▇▇▇▇▇ ▇▇▇▇▇, breach alone or inaccuracy has not been waived in conjunction with other investors, shall pay to Purchaser US$185,000.00 in cash in immediately available funds by way of a bank draft issued by a licensed bank in USA;
(xiii) within 5 days of Purchaser's receipt of the funds described in Section 4(A)(xii) above, Purchaser shall pay to Seller US$40,000.00 in cash in immediately available funds by way of a bank draft issued by a licensed bank in USA;
(xiv) the Seller or cured by shall transfer and assign all of Seller's right t title and interest in and to the Purchaser within 20 (twenty) Business Days after receipt by ▇▇▇▇ "Sugar Made", Serial Number 77625286, to Purchaser, including, without limitation, the Purchaser filing of written notice thereof an assignment of such ▇▇▇▇ from the Seller or is not reasonably capable of being cured prior to the Long Stop Date.
(v) By the Purchaser (if the Purchaser is not in material breach of the Purchaser Warranties, covenants or agreements under this Agreement so as to cause any of the conditions set forth in Clause 3.1 and/or 3.3 not to be satisfied), upon written notice to the Seller, if there has been within a material inaccuracy of any statement or warranty, or any unremedied material breach of a covenant or other agreement, of the Seller contained in this Agreement, which violation, breach or inaccuracy would cause any of the conditions set forth in Clauses 3.2 and/or 3.3(i) not to be satisfied as of reasonable time after the Completion Date, and such violation, breach or inaccuracy has not been waived by but in no event later than 15 days following the Purchaser or cured by the Seller within 20 (twenty) Business Days after receipt by the Seller of written notice thereof from the Purchaser or is not reasonably capable of being cured prior to the Long Stop Completion Date.
(vi) By the Seller or the Purchaser, upon written notice to the other, if a court of competent jurisdiction or any other Governmental Authority shall have issued a final, non-appealable order preventing or otherwise prohibiting the consummation of the Transactions.
5.5. If this Agreement is terminated prior to Completion in accordance with Clause 5.4 above,
(i) this Agreement shall become void and of no further force and effect; provided, however, that the provisions of this Clause 5.5 and Clauses 1 (Definitions and Interpretation), 11 (Announcements and Confidentiality), 12 (Notices), 13 (Governing Law, Disputes and Jurisdiction), 14.1 (Entire Agreement), 14.6 (Variation), 14.7 (No Assignment), 14.8 (Waiver), 14.9 (Severability), 14.10 (Supersession) and 14.11 (Expenses) shall survive the termination of this Agreement indefinitely and that nothing herein shall relieve any Party from any liability for fraud or any breach of the provisions of this Agreement prior to such termination; and
(ii) if applicable, the Observer shall no longer be entitled to attend the meetings of the Board (or any committee thereof) and the nominees of the Purchaser appointed on the Board in accordance with Clause 6.2 shall resign with immediate effect.
Appears in 2 contracts
Sources: Sale of Shares (Sugarmade, Inc.), Sale of Shares (Diversified Opportunities, Inc.)
Completion. 5.1. Subject to 7.1 Completion shall take place at the conditions offices of the Buyer’s Solicitors on the Completion Date when the Sellers and the Buyer shall each perform their respective obligations in accordance with and as set out in Clauses 3.1Part A and Part B, 3.2 respectively, of Schedule 2 (Completion Requirements).
7.2 The Buyer will not be obliged to complete this Agreement until each of the Sellers complies in full with its respective obligations under Part A of Schedule 2 (Completion Requirements).
7.3 The Buyer will not be obliged to complete the sale and 3.3purchase of any of the Shares unless the sale and purchase of all of the Shares is completed simultaneously, but completion of the purchase of some only of the Shares will not affect the rights of the Buyer with respect to the purchase of the remainder.
7.4 If Completion shall does not take place on the Completion Date.
5.2. The obligations of each Date because any of the Parties under Clause 5.3 below are interdependent of each other. The Completion shall not occur unless all of the obligations specified in Clause 5.3, have been simultaneously complied Sellers fails to comply with and are fully effective.
5.3. On the Completion Date:
(i) Subject to deductions pursuant to Clause 4.4, the Purchaser shall remit the Purchase Consideration (in immediately available funds) to the Seller’s Bank Account.
(ii) The Seller shall (a) provide to its Depository Participant duly executed DP Instructions in the prescribed form for the transfer of the Sale Shares to the Demat Account of the Purchaser (details of which shall be provided to the Seller in writing as soon as practicable after the Execution Date); (b) procure its Depository Participant to duly acknowledge such DP Instructions; (c) deliver a copy of such acknowledgement to the Purchaser; and (d) use best endeavours to procure credit of the Sale Shares to the Demat Account of the Purchaser.
(iii) The Seller shall, to the extent it is able to do so through exercise any of its voting rightsrespective material obligations under this Clause 7 and Schedule 2 (Completion Requirements), procure that a Board meeting is held at which then the following business shall be transacted:
(a) the appointment of directors nominated Buyer may by the Purchaser on the Board shall be approved; and
(b) an extra-ordinary general meeting of the shareholders of the Company to approve the matters set out in Clause 5.3(iii)(a) and the amendment of the Articles of Association shall be convened.
5.4. This Agreement may be terminated on or prior to the Completion Date as follows:
(i) By the mutual written consent of the Purchaser and the Seller.
(ii) By the Seller, upon written notice to the Purchaser, if Sellers’ Representative and the conditions set out in Clauses 3.1 and 3.3 have not been satisfied (or satisfied subject only Fund Sellers elect to:
7.4.1 proceed to Completion where applicable) to the extent reasonably practicable (including, at the option of the Buyer, completion of the purchase of some only of the Shares), which will not affect the rights of the Buyer with respect to the purchase of the remainder; or
7.4.2 defer Completion in relation to some or waived (where applicable) on or before 270 (two hundred seventy) days from all of the Execution Date or Shares to such later date as the Buyer and the Sellers’ Representative may be mutually agreed between the Parties in writing agree (“Long Stop Date”); provided that the Seller shall not be entitled to terminate this Agreement pursuant to this Clause 5.4(ii) if Seller’s breach of this Agreement has prevented or materially delayed the consummation of the Transactions (which term for the purposes of this Clause 5.4(ii) shall not include the Financing);
(iii) By the Purchaser, upon written notice to the Seller, if the conditions set out in Clauses 3.2 and 3.3 have not been satisfied (or satisfied subject only to Completion where applicable) or waived (where applicable) on or before the Long Stop Date; provided that the Purchaser shall not be entitled to terminate this Agreement pursuant to this Clause 5.4(iii) if Purchaser’s breach of this Agreement has prevented or materially delayed the consummation of the Transactions.
(iv) By the Seller (if the Seller is not in material breach of the Seller Warranties, covenants or agreements under this Agreement so as to cause any of the conditions set forth in Clause 3.2 and/or 3.3(i) not to be satisfied), upon written notice to the Purchaser, if there has been a material inaccuracy of any statement or warranty, or any unremedied material breach of a covenant or other agreement, of the Purchaser contained in this Agreement, which violation, breach or inaccuracy would cause any of the conditions set forth in Clause 3.1 and/or 3.3 not to be satisfied as of the Completion Date, and such violation, breach or inaccuracy has not been waived by the Seller or cured by the Purchaser within 20 (twenty) Business Days after receipt by the Purchaser of written notice thereof from the Seller or is not reasonably capable of being cured prior to the Long Stop Date.
(v) By the Purchaser (if the Purchaser is not in material breach of the Purchaser Warranties, covenants or agreements under this Agreement so as to cause any of the conditions set forth in Clause 3.1 and/or 3.3 not to be satisfied), upon written notice to the Seller, if there has been a material inaccuracy of any statement or warranty, or any unremedied material breach of a covenant or other agreement, of the Seller contained in this Agreement, which violation, breach or inaccuracy would cause any of the conditions set forth in Clauses 3.2 and/or 3.3(i) not to be satisfied as of the Completion Date, and such violation, breach or inaccuracy has not been waived by the Purchaser or cured by the Seller within 20 (twenty) Business Days after receipt by the Seller of written notice thereof from the Purchaser or is not reasonably capable of being cured prior to the Long Stop Date.
(vi) By the Seller or the Purchaser, upon written notice to the other, if a court of competent jurisdiction or any other Governmental Authority shall have issued a final, non-appealable order preventing or otherwise prohibiting the consummation of the Transactions.
5.5. If this Agreement is terminated prior to Completion in accordance with Clause 5.4 above,
(i) this Agreement shall become void and of no further force and effect; provided, however, that the provisions of Clause 6, apart from this Clause 5.5 and 7.4.2, shall apply to Completion deferred pursuant to this Clause); or
7.4.3 terminate this Agreement (whether or not such failure by the Sellers amounts to a repudiatory breach), without prejudice to any other remedies or accrued rights that any party may have against any other party, following which the provisions of this Agreement shall cease to have effect, other than Clauses 1 (Definitions and InterpretationInterpretations), this Clause 7, 11 (Announcements and Confidentiality), 12 (NoticesAnnouncements), 13 15 (Governing Law, Disputes Costs and JurisdictionExpenses), 14.1 18 (Entire AgreementGeneral), 14.6 19 (Variation), 14.7 (No Assignment), 14.8 (Waiver), 14.9 (Severability), 14.10 (SupersessionNotices) and 14.11 20 (Expenses) shall survive the termination of this Agreement indefinitely Applicable Law and that nothing herein shall relieve any Party from any liability for fraud or any breach of the provisions of this Agreement prior to such termination; and
(ii) if applicable, the Observer shall no longer be entitled to attend the meetings of the Board (or any committee thereof) and the nominees of the Purchaser appointed on the Board in accordance with Clause 6.2 shall resign with immediate effectJurisdictions).
Appears in 2 contracts
Sources: Second Deed of Amendment to the Share Purchase Agreement (Metsera, Inc.), Second Deed of Amendment to the Share Purchase Agreement (Metsera, Inc.)
Completion. 5.1. Subject (a) The obligations of the Subscriber under this Agreement to deposit the Subscription Funds at Completion are conditional upon the following conditions being satisfied or waived by such Subscriber in writing:
(i) the Company not being in material breach of this Agreement at Completion;
(ii) each of the Warranties remaining true and accurate in all material respects at Completion;
(iii) the passing of the resolutions referred to in Clause 4.2 (b) herein;
(iv) the results of the due diligence regarding Intellectual Property Rights and scientific and regulatory matters relating to the Company and its operations conducted by the Subscriber and/or his/her advisers being satisfactory to the Subscriber;
(v) any and all rights of pre-emption or restriction on issue in respect of the Subscription Shares and other matters contemplated in this Agreement conferred on any persons under the articles of association of the Company or otherwise being waived irrevocably by the persons entitled to them;
(b) The obligations of the Company under this Agreement to issue the Subscription Shares at Completion are conditional upon the following conditions being satisfied or waived by the Company in writing:
(i) The Subscriber not being in material breach of this Agreement at Completion;
(ii) The grant of the Power of Attorney in substantially the form and content of the power of attorney attached in the Third Schedule herein; and
(iii) The passing of the resolutions referred to in Clause 4.3 (c) herein;
(bb) For the avoidance of doubt, the Subscriber herein h▇▇▇▇▇ agrees and undertakes to do all things and take all steps as are necessary to grant, execute and deliver the Power of Attorney upon the terms and conditions set out therein.
(c) The Company and/or the Subscriber may waive all or any of the conditions set out in Clauses 3.1, 3.2 and 3.3, Completion shall take place on the Completion Date.
5.2. The obligations of each of the Parties under Clause 5.3 below are interdependent of each other. The Completion shall not occur unless all of the obligations specified in Clause 5.3, have been simultaneously complied this Agreement with and are fully effective.
5.3. On the Completion Date:
(i) Subject to deductions pursuant to Clause 4.4, the Purchaser shall remit the Purchase Consideration (in immediately available funds) respect to the Sellerother Party’s Bank Accountobligations only on such terms and conditions as it may deem appropriate.
(iid) The Seller shall (a) provide to its Depository Participant duly executed DP Instructions in In the prescribed form for the transfer event of any of the Sale Shares to the Demat Account of the Purchaser (details of which shall be provided to the Seller conditions in writing as soon as practicable after the Execution Date); Clause 3.1(a) and/or (b) procure its Depository Participant to duly acknowledge such DP Instructions; (c) deliver a copy of such acknowledgement to the Purchaser; and (d) use best endeavours to procure credit of the Sale Shares to the Demat Account of the Purchaser.
(iii) The Seller shall, to the extent it is able to do so through exercise of its voting rights, procure that a Board meeting is held at which the following business shall be transacted:
(a) the appointment of directors nominated not being satisfied or waived by the Purchaser on Company and/or the Board shall be approved; and
Subscriber (b) an extra-ordinary general meeting of the shareholders of the Company to approve the matters set out in Clause 5.3(iii)(a) and the amendment of the Articles of Association shall be convened.
5.4. This Agreement may be terminated on or prior to the Completion Date as follows:
(i) By the mutual written consent of the Purchaser and the Seller.
(ii) By the Seller, upon written notice to the Purchaser, if the conditions set out in Clauses 3.1 and 3.3 have not been satisfied (or satisfied subject only to Completion where applicable) or waived by 15 April 2021 (where applicable) on or before 270 (two hundred seventy) days from the Execution Date or such later date as may be mutually agreed between the Parties may agree in writing (“Long Stop Date”); provided that the Seller shall not be entitled to terminate this Agreement pursuant to this Clause 5.4(iiwriting) if Seller’s breach of this Agreement has prevented or materially delayed the consummation of the Transactions (which term for the purposes of this Clause 5.4(ii) shall not include the Financing);
(iii) By the Purchaser, upon written notice to the Seller, if the conditions set out in Clauses 3.2 and 3.3 have not been satisfied (or satisfied subject only to Completion where applicable) or waived (where applicable) on or before the Long Stop Date; provided that the Purchaser shall not be entitled to terminate this Agreement pursuant to this Clause 5.4(iii) if Purchaser’s breach of this Agreement has prevented or materially delayed the consummation of the Transactions.
(iv) By the Seller (if the Seller is not in material breach of the Seller Warranties, covenants or agreements under this Agreement so as to cause any of the conditions set forth in Clause 3.2 and/or 3.3(i) not to be satisfied), upon written notice to the Purchaser, if there has been a material inaccuracy of any statement or warranty, or any unremedied material breach of a covenant or other agreement, of the Purchaser contained in this Agreement, which violation, breach or inaccuracy would cause any of the conditions set forth in Clause 3.1 and/or 3.3 not to be satisfied as of the Completion Date, and such violation, breach or inaccuracy has not been waived by the Seller or cured by the Purchaser within 20 (twenty) Business Days after receipt by the Purchaser of written notice thereof from the Seller or is not reasonably capable of being cured prior to the Long Stop Date.
(v) By the Purchaser (if the Purchaser is not in material breach of the Purchaser Warranties, covenants or agreements under this Agreement so as to cause any of the conditions set forth in Clause 3.1 and/or 3.3 not to be satisfied), upon written notice to the Seller, if there has been a material inaccuracy of any statement or warranty, or any unremedied material breach of a covenant or other agreement, of the Seller contained in this Agreement, which violation, breach or inaccuracy would cause any of the conditions set forth in Clauses 3.2 and/or 3.3(i) not to be satisfied as of the Completion Date, and such violation, breach or inaccuracy has not been waived by the Purchaser or cured by the Seller within 20 (twenty) Business Days after receipt by the Seller of written notice thereof from the Purchaser or is not reasonably capable of being cured prior to the Long Stop Date.
(vi) By the Seller or the Purchaser, upon written notice to the other, if a court of competent jurisdiction or any other Governmental Authority shall have issued a final, non-appealable order preventing or otherwise prohibiting the consummation of the Transactions.
5.5. If this Agreement is terminated prior to Completion in accordance with Clause 5.4 above,
(i) this Agreement shall become void and of no further force and effect; provided, however, that the provisions of this Clause 5.5 and Clauses 1 (Definitions and Interpretation), 11 (Announcements and Confidentiality), 12 (Notices), 13 (Governing Law, Disputes and Jurisdiction), 14.1 (Entire Agreement), 14.6 (Variation), 14.7 (No Assignment), 14.8 (Waiver), 14.9 (Severability), 14.10 (Supersession) and 14.11 (Expenses) shall survive the termination of this Agreement indefinitely and that nothing herein shall relieve any Party from any liability for fraud or any breach of then the provisions of this Agreement (with the exception of those set out in 7, 8, 8A, 9, 11, 12 and 13 which shall continue in full force and effect) shall forthwith terminate and cease to be of effect and save as aforesaid no Party shall have any further liability under or pursuant to the provisions of this Agreement provided that such termination shall be without prejudice to the accrued rights and liabilities of the Parties occurring prior to such termination; and
(ii) if applicable, the Observer shall no longer be entitled to attend the meetings of the Board (or any committee thereof) and the nominees of the Purchaser appointed on the Board in accordance with Clause 6.2 shall resign with immediate effect.
Appears in 2 contracts
Sources: Subscription Agreement (CytoMed Therapeutics Pte. Ltd.), Subscription Agreement (CytoMed Therapeutics Pte. Ltd.)
Completion. 5.1. Subject to the conditions set out in Clauses 3.1, 3.2 and 3.3, 4.1 Completion shall take place on the Completion Date.
5.2. The obligations immediately following signature and exchange of each of the Parties under Clause 5.3 below are interdependent of each other. The Completion shall not occur unless all of the obligations specified in Clause 5.3, have been simultaneously complied with and are fully effective.
5.3. On the Completion Date:
(i) Subject to deductions pursuant to Clause 4.4, the Purchaser shall remit the Purchase Consideration (in immediately available funds) to the Seller’s Bank Account.
(ii) The Seller shall (a) provide to its Depository Participant duly executed DP Instructions in the prescribed form for the transfer of the Sale Shares to the Demat Account of the Purchaser (details of which shall be provided to the Seller in writing as soon as practicable after the Execution Date); (b) procure its Depository Participant to duly acknowledge such DP Instructions; (c) deliver a copy of such acknowledgement to the Purchaser; and (d) use best endeavours to procure credit of the Sale Shares to the Demat Account of the Purchaser.
(iii) The Seller shall, to the extent it is able to do so through exercise of its voting rights, procure that a Board meeting is held at which the following business shall be transactedthis Agreement when:
(a) the appointment of directors nominated by the Purchaser on the Board Sellers shall deliver or cause to be approved; and
(b) an extra-ordinary general meeting of the shareholders of the Company to approve the matters set out in Clause 5.3(iii)(a) and the amendment of the Articles of Association shall be convened.
5.4. This Agreement may be terminated on or prior delivered to the Completion Date as follows:Purchaser
(i) By transfers of the mutual written consent Shares duly completed in favour of the Purchaser and and/or its nominees notified by the Seller.Purchaser;
(ii) By the Seller, upon written notice share certificates representing the Shares (or an express indemnity in a form satisfactory to the Purchaser, if Purchaser in the conditions set out in Clauses 3.1 and 3.3 have not been satisfied (or satisfied subject only case of any found to Completion where applicable) or waived (where applicable) on or before 270 (two hundred seventy) days from the Execution Date or such later date as may be mutually agreed between the Parties in writing (“Long Stop Date”); provided that the Seller shall not be entitled to terminate this Agreement pursuant to this Clause 5.4(ii) if Seller’s breach of this Agreement has prevented or materially delayed the consummation of the Transactions (which term for the purposes of this Clause 5.4(ii) shall not include the Financingmissing);
(iii) By all the PurchaserStatutory and Minute Books of the Company and its Common Seal and the Certificate of Incorporation;
(iv) the Tax Deed duly executed by each of the Warrantors;
(v) a letter of resignation (expressed to be with effect from the end of the meeting of the Board of the Company referred to in sub-clause (d) below), upon written notice from ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ resigning office as Director and Secretary of the Company, executed as a deed in the agreed terms;
(vi) the resignation of the auditors of the Company in accordance with section 394 of the Companies ▇▇▇ ▇▇▇▇, confirming that there are no circumstances connected with their resignation which should be brought to the Sellernotice of the members or creditors of the Company and that there are no fees due to them;
(vii) the Service Agreement, if duly executed by ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇;
(viii) the conditions set out in Clauses 3.2 and 3.3 Property Licence duly executed by the Sellers; and
(ix) the Disclosure Letter.
(b) the Warrantors shall procure that all indebtedness due from any of the Warrantors or any person connected with them to the Company shall have not been satisfied in full prior to Completion;
(or c) all indebtedness due from the Company to any of the Warrantors (full particulars of which are contained in the Disclosure Letter but excluding remuneration accrued but not yet due for payment) shall have been satisfied in full without payment of interest prior to Completion;
(d) the Sellers shall cause a meeting of the Board of the Company to be held at which the Board shall:-
(i) appoint such persons as the Purchaser may nominate as Directors and Secretary of the Company;
(ii) accept the letters of resignation referred to in sub-clause (a)(v) and (a)(vi) above;
(iii) vote in favour of the registration of the Purchaser and/or its nominees as members of the Company subject only to the production of duly stamped and completed transfers in favour of the Purchaser and/or its nominees in respect of the Shares;
(iv) approve the Property Licence;
(v) change the accounting reference date of the Company to 31 December;
(vi) appoint Ernst & Young as auditors;
(e) the parties shall join in procuring that all existing bank mandates in force for the Company shall be altered (in such manner as the Purchaser shall at Completion where applicablerequire) or waived so as (where applicableinter alia) on or before to reflect the Long Stop Date; provided that resignations and appointments referred to above.
(f) the Purchaser shall not be entitled obliged to terminate complete this Agreement pursuant to this Clause 5.4(iiiunless the Sellers comply fully with the requirements of paragraphs (a), (b), (d), and (e) if Purchaser’s breach of this Agreement has prevented or materially delayed Clause;
4.2 Upon completion of all the consummation matters referred to in sub-clause 4.1 the Purchaser shall:
(a) pay to the Sellers' Solicitors (whose receipt shall be a sufficient discharge therefor) the Cash Consideration by way of telegraphic transfer;
(b) allot the Initial Consideration Shares and issue the Loan Notes to the Sellers and within five days of Completion deliver to the Sellers' Solicitors definitive share certificates in respect of the Transactions.Initial Consideration Shares and certificates in the agreed terms in respect of the Loan Notes in the names of the Sellers; and
(c) deliver to the Sellers' Solicitors a duly executed counterpart of:
(i) the Tax Deed;
(ii) the Service Agreement;
(iii) the Property Licence;
(iv) By the Seller Disclosure Letter;
(if d) the Seller is Sellers shall not in material breach of the Seller Warranties, covenants or agreements under be obliged to complete this Agreement so as to cause any unless the Purchaser complies fully with the requirements of the conditions set forth in Clause 3.2 and/or 3.3(i) not to be satisfiedparagraphs (a), upon written notice to (b) and (c) of this Clause.
4.3 If in any respect either the Purchaser, if there has been a material inaccuracy of any statement Sellers or warranty, or any unremedied material breach of a covenant or other agreement, of the Purchaser contained in this Agreement, which violation, breach or inaccuracy would cause any fail to comply with all the provisions of Clauses 4.1 and 4.2 on the conditions set forth in Clause 3.1 and/or 3.3 not to be satisfied as date for Completion then the other of the Completion Date, and such violation, breach or inaccuracy has not been waived by the Seller or cured by the Purchaser within 20 (twenty) Business Days after receipt by the Purchaser of written notice thereof from the Seller or is not reasonably capable of being cured prior to the Long Stop Date.them may:
(va) By defer Completion to a date not more than 28 days after the Purchaser date for Completion set by this Clause 4 (if the Purchaser is not in material breach of the Purchaser Warranties, covenants or agreements under this Agreement and so as to cause any of the conditions set forth in Clause 3.1 and/or 3.3 not to be satisfied), upon written notice to the Seller, if there has been a material inaccuracy of any statement or warranty, or any unremedied material breach of a covenant or other agreement, of the Seller contained in this Agreement, which violation, breach or inaccuracy would cause any of the conditions set forth in Clauses 3.2 and/or 3.3(i) not to be satisfied as of the Completion Date, and such violation, breach or inaccuracy has not been waived by the Purchaser or cured by the Seller within 20 (twenty) Business Days after receipt by the Seller of written notice thereof from the Purchaser or is not reasonably capable of being cured prior to the Long Stop Date.
(vi) By the Seller or the Purchaser, upon written notice to the other, if a court of competent jurisdiction or any other Governmental Authority shall have issued a final, non-appealable order preventing or otherwise prohibiting the consummation of the Transactions.
5.5. If this Agreement is terminated prior to Completion in accordance with Clause 5.4 above,
(i) this Agreement shall become void and of no further force and effect; provided, however, that the provisions of this Clause 5.5 sub-clause 4.3 shall apply to Completion as so deferred); or
(b) proceed to Completion as far as practicable; or
(c) rescind this Agreement (without prejudice to its accrued rights and Clauses 1 remedies).
4.4 The Purchaser (Definitions and Interpretation), 11 (Announcements and Confidentiality), 12 (Notices), 13 (Governing Law, Disputes and Jurisdiction), 14.1 (Entire Agreement), 14.6 (Variation), 14.7 (No Assignment), 14.8 (Waiver), 14.9 (Severability), 14.10 (Supersession) and 14.11 (Expenseswith the reasonable cooperation of the Sellers) shall survive procure as soon as reasonably practicable following Completion and in any event within 28 days of Completion the termination of this Agreement indefinitely full and that nothing herein shall relieve any Party from any liability for fraud or any breach unconditional release of the provisions of this Agreement prior to such termination; and
(ii) if applicable, the Observer shall no longer be entitled to attend the meetings of the Board (or any committee thereof) Personal Guarantee and the nominees Purchaser shall fully indemnify the Sellers against any liability, loss, cost or claim arising out of or in connection with the Purchaser appointed on the Board in accordance with Clause 6.2 shall resign with immediate effectPersonal Guarantee at any time after Completion.
Appears in 2 contracts
Sources: Share Purchase Agreement (Marquee Group Inc), Share Purchase Agreement (Marquee Group Inc)
Completion. 5.1. Subject to the conditions set out in Clauses 3.1, 3.2 and 3.3, 5.1 Completion shall take place on 5th November 2013 at the Completion Dateoffices of the Buyer’s Solicitors.
5.2. The obligations 5.2 At Completion, the Seller shall deliver (where appropriate as agent for the Company) to the Buyer:
5.2.1 transfers in respect of the Sale Shares, duly executed by the Seller in favour of the Buyer;
5.2.2 certificates for the Sale Shares and any other documents which may be required to give good title to the Sale Shares, and to enable the Buyer to procure registration of the same in its name;
5.2.3 the resignation of each of the Parties under Clause 5.3 below are interdependent of each other. The Completion shall not occur unless all directors (other than those requested in writing by the Buyer to remain) and of the obligations specified secretary of the Company executed as a deed in Clause 5.3the agreed form;
5.2.4 the Company's certificate of incorporation, have been simultaneously complied with certificate of incorporation on change of name (if applicable), statutory registers, minute books, share certificate books and are fully effectiveall other books (all duly written up to date);
5.2.5 certified copies of board resolutions of the Company in the agreed form;
5.2.6 a certified copy of the minutes recording the resolution of the board of directors of the Seller authorising, amongst other things, the sale of the Sale Shares and the execution of the transfers in respect of them, the execution and delivery of this Agreement, the Tax Covenant and the Disclosure Letter.
5.3. On 5.3 The Seller shall procure that the Completion Date:auditors of the Company will resign when requested to do so by the Buyer.
(i) Subject to deductions pursuant to Clause 4.45.4 Provided that the Seller complies with all their obligations under clause 4, the Purchaser Buyer’s Solicitors shall remit at Completion pay to the Purchase Consideration (in immediately available funds) Seller a sum of $3,150,000 less the deposit of $200,000USD and $48,552USD which have already been paid by way of telegraphic transfer to the Seller’s Bank AccountSolicitor’s client account.
(ii) 5.5 The Seller solicitors to any party to this agreement are authorised to take delivery of any items under this agreement on behalf of that party, and their receipt shall (a) provide to its Depository Participant duly executed DP Instructions in the prescribed form be a good discharge for the transfer of the Sale Shares those items to the Demat Account of party (and the Purchaser (details of which shall be provided solicitors to the Seller in writing as soon as practicable after the Execution Date); (bparty) procure its Depository Participant to duly acknowledge such DP Instructions; (c) deliver a copy of such acknowledgement to the Purchaser; and (d) use best endeavours to procure credit of the Sale Shares to the Demat Account of the Purchasermaking delivery.
(iii) The Seller shall, to the extent it is able to do so through exercise of its voting rights, procure that a Board meeting is held at which the following business shall be transacted:
(a) the appointment of directors nominated by the Purchaser on the Board shall be approved; and
(b) an extra-ordinary general meeting of the shareholders of the Company to approve the matters set out in Clause 5.3(iii)(a) and the amendment of the Articles of Association shall be convened.
5.4. This Agreement may be terminated on or prior to the Completion Date as follows:
(i) By the mutual written consent of the Purchaser and the Seller.
(ii) By the Seller, upon written notice to the Purchaser, if the conditions set out in Clauses 3.1 and 3.3 have not been satisfied (or satisfied subject only to Completion where applicable) or waived (where applicable) on or before 270 (two hundred seventy) days from the Execution Date or such later date as may be mutually agreed between the Parties in writing (“Long Stop Date”); provided that the Seller shall not be entitled to terminate this Agreement pursuant to this Clause 5.4(ii) if Seller’s breach of this Agreement has prevented or materially delayed the consummation of the Transactions (which term for the purposes of this Clause 5.4(ii) shall not include the Financing);
(iii) By the Purchaser, upon written notice to the Seller, if the conditions set out in Clauses 3.2 and 3.3 have not been satisfied (or satisfied subject only to Completion where applicable) or waived (where applicable) on or before the Long Stop Date; provided that the Purchaser shall not be entitled to terminate this Agreement pursuant to this Clause 5.4(iii) if Purchaser’s breach of this Agreement has prevented or materially delayed the consummation of the Transactions.
(iv) By the Seller (if the Seller is not in material breach of the Seller Warranties, covenants or agreements under this Agreement so as to cause any of the conditions set forth in Clause 3.2 and/or 3.3(i) not to be satisfied), upon written notice to the Purchaser, if there has been a material inaccuracy of any statement or warranty, or any unremedied material breach of a covenant or other agreement, of the Purchaser contained in this Agreement, which violation, breach or inaccuracy would cause any of the conditions set forth in Clause 3.1 and/or 3.3 not to be satisfied as of the Completion Date, and such violation, breach or inaccuracy has not been waived by the Seller or cured by the Purchaser within 20 (twenty) Business Days after receipt by the Purchaser of written notice thereof from the Seller or is not reasonably capable of being cured prior to the Long Stop Date.
(v) By the Purchaser (if the Purchaser is not in material breach of the Purchaser Warranties, covenants or agreements under this Agreement so as to cause any of the conditions set forth in Clause 3.1 and/or 3.3 not to be satisfied), upon written notice to the Seller, if there has been a material inaccuracy of any statement or warranty, or any unremedied material breach of a covenant or other agreement, of the Seller contained in this Agreement, which violation, breach or inaccuracy would cause any of the conditions set forth in Clauses 3.2 and/or 3.3(i) not to be satisfied as of the Completion Date, and such violation, breach or inaccuracy has not been waived by the Purchaser or cured by the Seller within 20 (twenty) Business Days after receipt by the Seller of written notice thereof from the Purchaser or is not reasonably capable of being cured prior to the Long Stop Date.
(vi) By the Seller or the Purchaser, upon written notice to the other, if a court of competent jurisdiction or any other Governmental Authority shall have issued a final, non-appealable order preventing or otherwise prohibiting the consummation of the Transactions.
5.5. If this Agreement is terminated prior to Completion in accordance with Clause 5.4 above,
(i) this Agreement shall become void and of no further force and effect; provided, however, that the provisions of this Clause 5.5 and Clauses 1 (Definitions and Interpretation), 11 (Announcements and Confidentiality), 12 (Notices), 13 (Governing Law, Disputes and Jurisdiction), 14.1 (Entire Agreement), 14.6 (Variation), 14.7 (No Assignment), 14.8 (Waiver), 14.9 (Severability), 14.10 (Supersession) and 14.11 (Expenses) shall survive the termination of this Agreement indefinitely and that nothing herein shall relieve any Party from any liability for fraud or any breach of the provisions of this Agreement prior to such termination; and
(ii) if applicable, the Observer shall no longer be entitled to attend the meetings of the Board (or any committee thereof) and the nominees of the Purchaser appointed on the Board in accordance with Clause 6.2 shall resign with immediate effect.
Appears in 2 contracts
Sources: Shareholder Agreement (Chanticleer Holdings, Inc.), Share Purchase Agreement (Chanticleer Holdings, Inc.)
Completion. 5.14.1. Subject The closing of the purchase and sale of New Shares and Warrants hereunder (the “Completion”) shall occur on the date of, and immediately prior to, the Transaction Closing. Not less than five Business Days prior to the anticipated date of the Transaction Closing, the Company shall provide written notice to the Investors (the “Closing Notice”) of such anticipated Transaction Closing date. The Investors shall deliver, at least one Business Day prior to the anticipated date of the Transaction Closing (or such other date as the Company and Investors may agree upon in writing), the aggregate Subscription Price to the Company, by wire transfer of immediately available funds, in accordance with instructions set forth in the Closing Notice. In the event the Transaction Closing does not occur within ten Business Days after the anticipated date identified in the Closing Notice, the Company shall promptly (but not later than two Business Days thereafter unless an Investor has not provided or confirmed its account details within such period) return the Subscription Price to the Investors by wire transfer in immediately available funds to the account specified by the Investors. Notwithstanding such return, unless and until this agreement has been terminated in accordance with its terms, the Investors shall remain obligated to redeliver the Subscription Price to the Company following the Company’s delivery to the Investors of a new Closing Notice; provided that only one new Closing Notice may be issued unless otherwise agreed in writing by the Investors.
4.2. At Completion, upon satisfaction (or, if applicable, waiver) of the conditions set out forth in Clauses 3.1this Section 4, 3.2 the Company will issue the New Shares and 3.3Warrants listed in the table in clause 3.1 to each Investor, Completion shall take place on credited as fully paid and enter its name in the Completion Dateregister of members in respect of such New Shares and Warrants and at the Transaction Closing the New Shares and Warrants will be converted into shares and warrants of PubCo and delivered to the Investor in book entry form in accordance with the provisions of the Business Combination Agreement.
5.24.3. At Completion, each Investor will, upon execution and delivery thereof, become party to the Registration Rights Agreement.
4.4. The Company’s obligations to issue the New Shares and Warrants at Completion are subject to the fulfillment or (to the extent permitted by applicable law) written waiver by the Company and PubCo, at or prior to Completion, of each of the Parties under Clause 5.3 below are interdependent of each other. The Completion shall not occur unless all of the obligations specified in Clause 5.3, have been simultaneously complied with and are fully effective.
5.3. On the Completion Date:
(i) Subject to deductions pursuant to Clause 4.4, the Purchaser shall remit the Purchase Consideration (in immediately available funds) to the Seller’s Bank Account.
(ii) The Seller shall (a) provide to its Depository Participant duly executed DP Instructions in the prescribed form for the transfer of the Sale Shares to the Demat Account of the Purchaser (details of which shall be provided to the Seller in writing as soon as practicable after the Execution Date); (b) procure its Depository Participant to duly acknowledge such DP Instructions; (c) deliver a copy of such acknowledgement to the Purchaser; and (d) use best endeavours to procure credit of the Sale Shares to the Demat Account of the Purchaser.
(iii) The Seller shall, to the extent it is able to do so through exercise of its voting rights, procure that a Board meeting is held at which the following business shall be transactedconditions:
(a) the appointment of directors nominated Investors shall have performed, satisfied and complied in all material respects with the covenants, agreements and conditions required by this agreement to be performed, satisfied or complied with by the Purchaser on Investors at or prior to the Board shall be approved; andCompletion;
(b) an extra-ordinary general meeting all conditions precedent to the Transaction Closing set forth in the Business Combination Agreement shall have been satisfied or waived as determined by the parties to the Business Combination Agreement (other than those conditions which, by their nature, are to be satisfied by a party to the Business Combination Agreement at the Transaction Closing, but subject to satisfaction or waiver by such party of such conditions as of the shareholders of the Company to approve the matters set out in Clause 5.3(iii)(aTransaction Closing) and the amendment of Transaction Closing shall have been or will be scheduled to occur promptly after the Articles of Association shall be convened.
5.4. This Agreement may be terminated on or prior to the Completion Date as follows:Completion;
(ic) By the mutual written consent of the Purchaser and the Seller.
(ii) By the Seller, upon written notice to the Purchaser, if the conditions set out in Clauses 3.1 and 3.3 have not been satisfied (or satisfied subject only to Completion where applicable) or waived (where applicable) on or before 270 (two hundred seventy) days from the Execution Date or such later date as may be mutually agreed between the Parties in writing (“Long Stop Date”); provided that the Seller there shall not be entitled to terminate this Agreement pursuant to this Clause 5.4(ii) if Seller’s breach of this Agreement has prevented in force any law, rule, regulation, order, judgment, injunction, decree, writ, stipulation, determination or materially delayed the consummation of the Transactions (which term for the purposes of this Clause 5.4(ii) shall not include the Financing);
(iii) By the Purchaseraward, upon written notice to the Sellerin each case, if the conditions set out in Clauses 3.2 and 3.3 have not been satisfied (entered by or satisfied subject only to Completion where applicable) with any governmental authority, statute, rule or waived (where applicable) on regulation enjoining or before the Long Stop Date; provided that the Purchaser shall not be entitled to terminate this Agreement pursuant to this Clause 5.4(iii) if Purchaser’s breach of this Agreement has prevented or materially delayed the consummation of the Transactions.
(iv) By the Seller (if the Seller is not in material breach of the Seller Warranties, covenants or agreements under this Agreement so as to cause any of the conditions set forth in Clause 3.2 and/or 3.3(i) not to be satisfied), upon written notice to the Purchaser, if there has been a material inaccuracy of any statement or warranty, or any unremedied material breach of a covenant or other agreement, of the Purchaser contained in this Agreement, which violation, breach or inaccuracy would cause any of the conditions set forth in Clause 3.1 and/or 3.3 not to be satisfied as of the Completion Date, and such violation, breach or inaccuracy has not been waived by the Seller or cured by the Purchaser within 20 (twenty) Business Days after receipt by the Purchaser of written notice thereof from the Seller or is not reasonably capable of being cured prior to the Long Stop Date.
(v) By the Purchaser (if the Purchaser is not in material breach of the Purchaser Warranties, covenants or agreements under this Agreement so as to cause any of the conditions set forth in Clause 3.1 and/or 3.3 not to be satisfied), upon written notice to the Seller, if there has been a material inaccuracy of any statement or warranty, or any unremedied material breach of a covenant or other agreement, of the Seller contained in this Agreement, which violation, breach or inaccuracy would cause any of the conditions set forth in Clauses 3.2 and/or 3.3(i) not to be satisfied as of the Completion Date, and such violation, breach or inaccuracy has not been waived by the Purchaser or cured by the Seller within 20 (twenty) Business Days after receipt by the Seller of written notice thereof from the Purchaser or is not reasonably capable of being cured prior to the Long Stop Date.
(vi) By the Seller or the Purchaser, upon written notice to the other, if a court of competent jurisdiction or any other Governmental Authority shall have issued a final, non-appealable order preventing or otherwise prohibiting the consummation of the Transactions.
5.5. If this Agreement is terminated prior to Completion in accordance with Clause 5.4 above,
(i) this Agreement shall become void and of no further force and effect; provided, however, that the provisions of this Clause 5.5 and Clauses 1 (Definitions and Interpretation), 11 (Announcements and Confidentiality), 12 (Notices), 13 (Governing Law, Disputes and Jurisdiction), 14.1 (Entire Agreement), 14.6 (Variation), 14.7 (No Assignment), 14.8 (Waiver), 14.9 (Severability), 14.10 (Supersession) and 14.11 (Expenses) shall survive the termination of this Agreement indefinitely and that nothing herein shall relieve any Party from any liability for fraud or any breach sale of the provisions of this Agreement prior to such terminationSecurities pursuant hereto; and
(iid) if applicablethe Investors shall have delivered the aggregate Subscription Price and counterpart signatures to the Registration Rights Agreement and the Warrant and any other Transaction Documents required to be executed by the Investors pursuant hereto.
4.5. The Investors’ obligations to purchase the Securities at the Completion are subject to the fulfillment or (to the extent permitted by applicable law) written waiver by the Investors, at or prior to the Observer shall no longer be entitled to attend the meetings Completion, of each of the Board following conditions:
(a) the warranties made by the Company in Schedule 4 hereof shall be true and correct in all material respects (other than warranties that are qualified as to materiality or Material Adverse Effect, which warranties shall be true and correct in all respects) at and as of the Completion with the same force and effect as if they had been made at and as of the Completion (except to the extent that any committee thereofsuch warranty expressly speaks as of an earlier date, in which case such warranty shall be true and correct in all material respects (other than representations and warranties that are qualified as to materiality or Material Adverse Effect, which representations and warranties shall be true and correct in all respects) as of such earlier date) and consummation of the Completion shall constitute a reaffirmation by the Company of each of the warranties and agreements of the Company contained in Schedule 4 as of the Completion, but without giving effect to consummation of the Transaction, or as of such earlier date, as applicable;
(b) the Company shall have performed, satisfied and complied in all material respects with the covenants, agreements and conditions required by this agreement to be performed, satisfied or complied with by the Investors at or prior to the Completion;
(c) all conditions precedent to the Transaction Closing set forth in the Business Combination Agreement shall have been satisfied or waived as determined by the parties to the Business Combination Agreement (other than those conditions which, by their nature, are to be satisfied by a party to the Business Combination Agreement at the Transaction Closing, but subject to satisfaction or waiver by such party of such conditions as of the Transaction Closing) and the nominees Transaction Closing shall have been or will be scheduled to occur promptly after the Completion;
(d) there shall not be in force any law, rule, regulation, order, judgment, injunction, decree, writ, stipulation, determination or award, in each case, entered by or with any governmental authority, statute, rule or regulation enjoining or prohibiting the consummation of the Purchaser appointed on sale of the Board Securities pursuant hereto; and
(e) the Business Combination Agreement shall not have been amended, modified, supplemented or waived in accordance with Clause 6.2 shall resign with immediate effecta manner that would reasonably be expected to materially and adversely affect the economic benefits that the Investor would reasonably expect to receive under this agreement.
Appears in 2 contracts
Sources: Subscription Agreement (Maywood Acquisition Corp.), Subscription Agreement (Inflection Point Acquisition Corp. III)
Completion. 5.1. Subject to the conditions set out in Clauses 3.1, 3.2 and 3.3, 5.1 Completion shall take place at the Company’s office on the Completion DateDate at 5:00 p.m. (or at such other place and time as the parties may agree) when all the acts and requirement set out in this Clause 5 shall be complied with.
5.2. The obligations 5.2 On Completion, the Vendor and or the Company (as the case may be) deliver or procure the delivery to the Purchaser of each of all the Parties under Clause 5.3 below are interdependent of each other. The Completion shall not occur unless all of the obligations specified in Clause 5.3, have been simultaneously complied with and are fully effective.
5.3. On the Completion Datefollowing:
(i) Subject to deductions pursuant to Clause 4.4, the Purchaser shall remit the Purchase Consideration (in immediately available funds) to the Seller’s Bank Account.
(ii) The Seller shall (a) provide to its Depository Participant duly executed DP Instructions the Vendor delivers the relevant instruments of transfer and contract notes in the prescribed form for respect of the transfer of the Sale Shares to duly executed by the Demat Account Vendor in favour of the Purchaser (details or such other nominee(s) as the Purchaser may direct and such other documents as may be required to give a good and effective transfer of which shall be provided title to the Seller in writing as soon as practicable after the Execution Date); (b) procure its Depository Participant to duly acknowledge such DP Instructions; (c) deliver a copy of such acknowledgement to the Purchaser; and (d) use best endeavours to procure credit of the Sale Shares to the Demat Account Purchaser or such nominee(s) and to enable the Purchaser or such nominee(s) to become the registered and beneficial holder thereof free from all Encumbrances to the Purchaser’s satisfaction;
(b) the Vendor delivers definitive share certificates in respect of the Purchaser.Sale Shares and other evidence as may be required by the Purchaser showing that the Vendor is the beneficial owner of the number of Sale Shares free from all Encumbrances;
(c) the Company delivers copies, certified as true and complete by a director of the Company, of resolutions of the shareholders meeting/board of directors approving the matters as stipulated in Clause 5.3;
(d) the Company delivers in respect of the Company:
(i) all statutory records and minute books (which shall be written up to date as at Completion), all unissued share certificates (if any) and all other statutory records then;
(ii) all common seals and all rubber stamps, cheque books, cheque stubs and bank statements, receipt books, all current insurance policies, books and accounts and title deeds and evidence of ownerships to all assets and all current contracts and all other accounting records;
(iii) The Seller shall, copies of all tax returns and assessments (receipted where the due dates for payment fell on or before the Completion Date);
(iv) execution of employment contracts in a form satisfactory to the extent it is able Purchaser, at its sole discretion, for the executive management staff for the Company for a period of at least one year after the Completion Date;
(v) all correspondence and other documents belonging to do the Company (including its constitutional documents); and provided that, if the Purchaser so through exercise agrees, delivery of its voting rightsall documents and records referred to in this Clause 5.2(d) shall be deemed to have been effected where they are situated in premises and shall continue to be in the sole occupation of the respective companies in the Company following Completion or otherwise in the custody of persons who shall remain officers and/or employees of the Company following Completion; and
(e) the June 30, 2020 Accounts (which shall not have any deviation from the Accounts as contained in Schedule 2).
5.3 On Completion, the Company shall procure that a Board meeting is held of the shareholders/directors (as appropriate) of the Company at which the following business such matters shall be transacteddealt with and resolved upon as the Purchaser shall require for the purposes of giving effect to the provisions of this Agreement including:
(a) record the appointment Sale Shares in the name of directors nominated by the Purchaser on in the Board shall be approvedCompany’s share register; and
(b) an extra-ordinary general meeting amending the memorandum and articles of the shareholders association of the Company to approve the matters set out in Clause 5.3(iii)(a) and the amendment of the Articles of Association shall be convened.
5.4. This Agreement as may be terminated on or required by the Purchaser in writing prior to the Completion Date Completion.
5.4 Against performance of the obligations by the Vendor and or the Company (as followsthe case may be) under Clauses 5.2 and 5.3 above, the Purchaser shall:
(ia) By cause to be delivered to the mutual written consent Vendor the Consideration Shares to be registered in the name of the Vendor or its nominee, on the book of the Purchaser and by the SellerPurchaser’s transfer agent ; and
(b) deliver to the Vendor a certified copy of the directors’ resolutions of the Purchaser approving this Agreement.
(ii) By 5.5 If the SellerVendor or the Company, upon written notice as appropriate, shall fail to do anything required to be done by them under Clauses 5.2 and 5.3, without prejudice to any other right or remedy available to the Purchaser, if the conditions set out in Clauses 3.1 and 3.3 have not been satisfied (or satisfied subject only to Completion where applicable) or waived (where applicable) on or before 270 (two hundred seventy) days from the Execution Date or such later date as may be mutually agreed between the Parties in writing (“Long Stop Date”); provided that the Seller shall not be entitled to terminate this Agreement pursuant to this Clause 5.4(ii) if Seller’s breach of this Agreement has prevented or materially delayed the consummation of the Transactions (which term for the purposes of this Clause 5.4(ii) shall not include the Financing);Purchaser may:
(iiia) By defer Completion to a day not later than 14 days after the Purchaser, upon written notice to the Seller, if the conditions set out in Clauses 3.2 date fixed for Completion (and 3.3 have not been satisfied (or satisfied subject only to Completion where applicable) or waived (where applicable) on or before the Long Stop Date; provided that the Purchaser shall not be entitled to terminate this Agreement pursuant to this Clause 5.4(iii) if Purchaser’s breach of this Agreement has prevented or materially delayed the consummation of the Transactions.
(iv) By the Seller (if the Seller is not in material breach of the Seller Warranties, covenants or agreements under this Agreement so as to cause any of the conditions set forth in Clause 3.2 and/or 3.3(i) not to be satisfied), upon written notice to the Purchaser, if there has been a material inaccuracy of any statement or warranty, or any unremedied material breach of a covenant or other agreement, of the Purchaser contained in this Agreement, which violation, breach or inaccuracy would cause any of the conditions set forth in Clause 3.1 and/or 3.3 not to be satisfied as of the Completion Date, and such violation, breach or inaccuracy has not been waived by the Seller or cured by the Purchaser within 20 (twenty) Business Days after receipt by the Purchaser of written notice thereof from the Seller or is not reasonably capable of being cured prior to the Long Stop Date.
(v) By the Purchaser (if the Purchaser is not in material breach of the Purchaser Warranties, covenants or agreements under this Agreement so as to cause any of the conditions set forth in Clause 3.1 and/or 3.3 not to be satisfied), upon written notice to the Seller, if there has been a material inaccuracy of any statement or warranty, or any unremedied material breach of a covenant or other agreement, of the Seller contained in this Agreement, which violation, breach or inaccuracy would cause any of the conditions set forth in Clauses 3.2 and/or 3.3(i) not to be satisfied as of the Completion Date, and such violation, breach or inaccuracy has not been waived by the Purchaser or cured by the Seller within 20 (twenty) Business Days after receipt by the Seller of written notice thereof from the Purchaser or is not reasonably capable of being cured prior to the Long Stop Date.
(vi) By the Seller or the Purchaser, upon written notice to the other, if a court of competent jurisdiction or any other Governmental Authority shall have issued a final, non-appealable order preventing or otherwise prohibiting the consummation of the Transactions.
5.5. If this Agreement is terminated prior to Completion in accordance with Clause 5.4 above,
(i) this Agreement shall become void and of no further force and effect; provided, however, that the provisions of this Clause 5.5 paragraph (a) shall apply to Completion as so deferred); or
(b) proceed to Completion so far as practicable but without prejudice to the Purchaser's rights to the extent that the Vendor shall not have complied with their obligations; or
(c) rescind this Agreement without liability on its part.
5.6 The parties to the Agreement confirm and agree that Clauses 1 (Definitions and Interpretation), 6 to 11 (Announcements and Confidentiality), 12 (Notices), 13 (Governing Law, Disputes and Jurisdiction), 14.1 (Entire Agreement), 14.6 (Variation), 14.7 (No Assignment), 14.8 (Waiver), 14.9 (Severability), 14.10 (Supersession) and 14.11 (Expenses) shall survive the termination of this Agreement indefinitely and that nothing herein shall relieve any Party from any liability for fraud or any breach of the provisions of this Agreement prior to such termination; and
(ii) if applicable, the Observer shall no longer be entitled to attend the meetings of the Board (or any committee thereof) and the nominees of the Purchaser appointed on the Board in accordance with Clause 6.2 shall resign with immediate effectCompletion.
Appears in 2 contracts
Sources: Shareholder Agreement (Integrated Media Technology LTD), Shareholder Agreement (Integrated Media Technology LTD)
Completion. 5.1. Subject to the conditions set out in Clauses 3.1, 3.2 and 3.3, 5.1 Completion shall take place at the offices of Studio Legale Bird & Bird, in Milan, at 10 a.m., on the 5th (fifth) Business Day following the date on which all the Conditions Precedent set forth in Clause 4.1 shall have been fulfilled (the “Completion Date”), or at such other place, date and time as the parties may hereafter agree in writing.
5.2 At Completion the Seller and the Purchaser shall comply with their respective obligations set out in Schedule 11.
5.3 If the obligations of the Seller or the Purchaser under Schedule 11 are not complied with on the Completion Date.
5.2. The obligations of each of the Parties under Clause 5.3 below are interdependent of each other. The Completion shall not occur unless all of the obligations specified Date in Clause 5.3, have been simultaneously complied with and are fully effective.
5.3. On the Completion Date:
(i) Subject to deductions pursuant to Clause 4.4any material respect, the Purchaser shall remit the Purchase Consideration (in immediately available fundsthe case of default by the Seller) or the Seller (in the case of a default by the Purchaser) shall be entitled (in addition to and without prejudice to all other rights and remedies available) by written notice to the Purchaser or the Seller’s Bank Account.
(ii) The Seller shall (a) provide to its Depository Participant duly executed DP Instructions in , as the prescribed form for the transfer of the Sale Shares to the Demat Account of the Purchaser (details of which shall be provided to the Seller in writing as soon as practicable after the Execution Date); (b) procure its Depository Participant to duly acknowledge such DP Instructions; (c) deliver a copy of such acknowledgement to the Purchaser; and (d) use best endeavours to procure credit of the Sale Shares to the Demat Account of the Purchaser.
(iii) The Seller shall, to the extent it is able to do so through exercise of its voting rights, procure that a Board meeting is held at which the following business shall be transactedcase may be:
(a) the appointment to defer Completion for a period of directors nominated by the Purchaser on the Board shall be approved; and
up to ten (b) an extra-ordinary general meeting of the shareholders of the Company to approve the matters set out in Clause 5.3(iii)(a) and the amendment of the Articles of Association shall be convened.
5.4. This Agreement may be terminated on or prior to the Completion Date as follows:
(i) By the mutual written consent of the Purchaser and the Seller.
(ii) By the Seller, upon written notice to the Purchaser, if the conditions set out in Clauses 3.1 and 3.3 have not been satisfied (or satisfied subject only to Completion where applicable) or waived (where applicable) on or before 270 (two hundred seventy) days from the Execution Date or such later date as may be mutually agreed between the Parties in writing (“Long Stop Date”); provided that the Seller shall not be entitled to terminate this Agreement pursuant to this Clause 5.4(ii) if Seller’s breach of this Agreement has prevented or materially delayed the consummation of the Transactions (which term for the purposes of this Clause 5.4(ii) shall not include the Financing);
(iii) By the Purchaser, upon written notice to the Seller, if the conditions set out in Clauses 3.2 and 3.3 have not been satisfied (or satisfied subject only to Completion where applicable) or waived (where applicable) on or before the Long Stop Date; provided that the Purchaser shall not be entitled to terminate this Agreement pursuant to this Clause 5.4(iii) if Purchaser’s breach of this Agreement has prevented or materially delayed the consummation of the Transactions.
(iv) By the Seller (if the Seller is not in material breach of the Seller Warranties, covenants or agreements under this Agreement so as to cause any of the conditions set forth in Clause 3.2 and/or 3.3(i) not to be satisfied), upon written notice to the Purchaser, if there has been a material inaccuracy of any statement or warranty, or any unremedied material breach of a covenant or other agreement, of the Purchaser contained in this Agreement, which violation, breach or inaccuracy would cause any of the conditions set forth in Clause 3.1 and/or 3.3 not to be satisfied as of the Completion Date, and such violation, breach or inaccuracy has not been waived by the Seller or cured by the Purchaser within 20 (twenty10) Business Days after receipt by the Purchaser of written notice thereof from the Seller or (provided always that such date is not reasonably capable of being cured prior to the Long Stop Date.
(v) By the Purchaser (if the Purchaser is not in material breach of the Purchaser Warranties, covenants or agreements under this Agreement so as to cause any of the conditions set forth in Clause 3.1 and/or 3.3 not to be satisfied), upon written notice to the Seller, if there has been a material inaccuracy of any statement or warranty, or any unremedied material breach of a covenant or other agreement, of the Seller contained in this Agreement, which violation, breach or inaccuracy would cause any of the conditions set forth in Clauses 3.2 and/or 3.3(i) not to be satisfied as of the Completion Date, and such violation, breach or inaccuracy has not been waived by the Purchaser or cured by the Seller within 20 (twenty) Business Days after receipt by the Seller of written notice thereof from the Purchaser or is not reasonably capable of being cured prior to the Long Stop Date.
(vi) By the Seller or the Purchaser, upon written notice to the other, if a court of competent jurisdiction or any other Governmental Authority shall have issued a final, non-appealable order preventing or otherwise prohibiting the consummation of the Transactions.
5.5. If this Agreement is terminated prior to Completion in accordance with Clause 5.4 above,
(i) this Agreement shall become void and of no further force and effect; provided, however, that the provisions of this Clause 5.5 and Clauses 1 5 shall apply to Completion as so deferred;
(Definitions and Interpretation)b) to require the parties to proceed to Completion as far as practicable, 11 having regard to the defaults which have occurred; and
(Announcements and Confidentiality), 12 c) subject to Completion having first been deferred for a period of at least ten (Notices), 13 (Governing Law, Disputes and Jurisdiction), 14.1 (Entire Agreement), 14.6 (Variation), 14.7 (No Assignment), 14.8 (Waiver), 14.9 (Severability), 14.10 (Supersession10) Business Days under Clause 5.3(a) and 14.11 (Expenses) shall survive the termination parties having used reasonable endeavours to effect Completion during that period, to terminate this Agreement by notice in writing to the Purchaser or the Seller, as the case may be.
5.4 All amounts expressed to be payable to the Seller pursuant to any provision of this Agreement indefinitely shall be paid (without set-off or deduction) to the Designated Account, and that nothing herein the receipt of each such amount in the Designated Account shall relieve be an absolute discharge to the Purchaser of the obligation to pay such amount and the Purchaser shall not be concerned to see to the application of any Party from any liability for fraud such amount thereafter.
5.5 All actions and transactions constituting the Completion pursuant to this Agreement (including, without limitation, this Clause 5 and Schedule 11), as well as all actions and transactions constituting the Completion under the Oss SPA, shall be regarded as one single transaction so that, at the option of the party having interest in the performance of the relevant specific action or any breach of transaction, no action or transaction constituting the Completion shall be deemed to have taken place if and until all other actions and transactions constituting the Completion shall have been properly performed in accordance with the provisions of this Agreement prior to such termination; and
(ii) if applicable, the Observer shall no longer be entitled to attend the meetings and of the Board (or any committee thereof) and the nominees of the Purchaser appointed on the Board in accordance with Clause 6.2 shall resign with immediate effectOss SPA.
Appears in 2 contracts
Sources: Sale and Purchase Agreement, Sale and Purchase Agreement (Shiloh Industries Inc)
Completion. 5.1. Subject to the conditions set out in Clauses 3.1, 3.2 and 3.3, 4.1 Completion shall take place at the offices of the Purchaser’s Lawyers at 11.00 a.m. on the 2nd Business Day after the date on which all the Conditions are satisfied or, where permitted, waived or at such other time and on such other date as the Sellers and the Purchaser may agree.
4.2 On the Completion Date, the Purchaser will pay the Cash Purchase Price together with any late payment interest accrued thereon in accordance with Schedule 2 “Interest” by wire transfer into the Notary’s account in accordance with Clause 14 “Payments”.
4.3 On the Completion Date, after confirmation by the Notary that the Cash Purchase Price has been received in the Notary’s account, the Purchaser, each of the Sellers and the Notary shall execute a Deed of Transfer and the Purchaser shall acknowledge the transfer of the Shares by signing the Deed of Transfer. Immediately thereafter, on the Completion Date.
5.2. The obligations of , the Notary will pay to each of the Parties under Clause 5.3 below are interdependent Sellers, by wire transfer of each other. The Completion shall not occur unless all of the obligations specified in Clause 5.3, have been simultaneously complied with and are fully effective.
5.3. On the Completion Date:
(i) Subject to deductions pursuant to Clause 4.4, the Purchaser shall remit the Purchase Consideration (in immediately available funds) to , the Seller’s Bank Account.
(ii) The Seller shall (a) provide to its Depository Participant duly executed DP Instructions in the prescribed form for the transfer amount of the Sale Shares Cash Purchase Price set forth opposite such Sellers’ name on Schedule 1 “The Shareholdings”, plus any interest accrued thereon, in accordance with this Agreement, and the instruction letter to the Demat Account of the Purchaser (details of which shall be provided to the Seller in writing as soon as practicable after the Execution Date); (b) procure its Depository Participant to duly acknowledge such DP Instructions; (c) deliver a copy of such acknowledgement to the Purchaser; and (d) use best endeavours to procure credit of the Sale Shares to the Demat Account of the Purchaser.
(iii) The Seller shall, to the extent it is able to do so through exercise of its voting rights, procure that a Board meeting is held at which the following business shall be transacted:
(a) the appointment of directors nominated signed by the Purchaser on the Board shall be approved; and
(b) an extra-ordinary general meeting of the shareholders of the Company to approve the matters set out in Clause 5.3(iii)(a) and the amendment of the Articles of Association shall be convened.
5.4. This Agreement may be terminated on or prior to the Completion Date as follows:
(i) By the mutual written consent of Sellers, the Purchaser and the SellerNotary on the Completion Date in the form attached hereto as part of Schedule 7 “Deed of Transfer”.
(ii) By the Seller, upon written notice to 4.4 The Notary is a civil law notary with the Purchaser, if the conditions set out in Clauses 3.1 and 3.3 have not been satisfied (or satisfied subject only to Completion where applicable) or waived (where applicable) on or before 270 (two hundred seventy) days from the Execution Date or such later date as may be mutually agreed between the Parties in writing (“Long Stop Date”); provided that the Seller shall not be entitled to terminate this Agreement pursuant to this Clause 5.4(ii) if Seller’s breach of this Agreement has prevented or materially delayed the consummation Lawyers. Each of the Transactions (which term for the purposes of this Clause 5.4(ii) shall not include the Financing);
(iii) By the Purchaser, upon written notice to the Seller, if the conditions set out in Clauses 3.2 Sellers and 3.3 have not been satisfied (or satisfied subject only to Completion where applicable) or waived (where applicable) on or before the Long Stop Date; provided that the Purchaser shall not be entitled to terminate this Agreement pursuant to this Clause 5.4(iii) if Purchaser’s breach of this Agreement has prevented or materially delayed the consummation of the Transactions.
(iv) By the Seller (if the Seller acknowledges that it is not in material breach of the Seller Warranties, covenants or agreements under this Agreement so as to cause any of the conditions set forth in Clause 3.2 and/or 3.3(i) not to be satisfied), upon written notice to the Purchaser, if there has been a material inaccuracy of any statement or warranty, or any unremedied material breach of a covenant or other agreement, of the Purchaser contained in this Agreement, which violation, breach or inaccuracy would cause any of the conditions set forth in Clause 3.1 and/or 3.3 not to be satisfied as of the Completion Date, and such violation, breach or inaccuracy has not been waived by the Seller or cured by the Purchaser within 20 (twenty) Business Days after receipt by the Purchaser of written notice thereof from the Seller or is not reasonably capable of being cured prior to the Long Stop Date.
(v) By the Purchaser (if the Purchaser is not in material breach of the Purchaser Warranties, covenants or agreements under this Agreement so as to cause any of the conditions set forth in Clause 3.1 and/or 3.3 not to be satisfied), upon written notice to the Seller, if there has been a material inaccuracy of any statement or warranty, or any unremedied material breach of a covenant or other agreement, of the Seller contained in this Agreement, which violation, breach or inaccuracy would cause any of the conditions set forth in Clauses 3.2 and/or 3.3(i) not to be satisfied as of the Completion Date, and such violation, breach or inaccuracy has not been waived by the Purchaser or cured by the Seller within 20 (twenty) Business Days after receipt by the Seller of written notice thereof from the Purchaser or is not reasonably capable of being cured prior to the Long Stop Date.
(vi) By the Seller or the Purchaser, upon written notice to the other, if a court of competent jurisdiction or any other Governmental Authority shall have issued a final, non-appealable order preventing or otherwise prohibiting the consummation of the Transactions.
5.5. If this Agreement is terminated prior to Completion in accordance with Clause 5.4 above,
(i) this Agreement shall become void and of no further force and effect; provided, however, that the provisions of this Clause 5.5 and Clauses 1 (Definitions and Interpretation), 11 (Announcements and Confidentiality), 12 (Notices), 13 (Governing Law, Disputes and Jurisdiction), 14.1 (Entire Agreement), 14.6 (Variation), 14.7 (No Assignment), 14.8 (Waiver), 14.9 (Severability), 14.10 (Supersession) and 14.11 (Expenses) shall survive the termination of this Agreement indefinitely and that nothing herein shall relieve any Party from any liability for fraud or any breach aware of the provisions of this Agreement prior to such termination; and
the Ordinance containing Rules of Professional Conduct and Ethics (ii“Verordening beroeps- en gedragsregels”) if applicable, the Observer shall no longer be entitled to attend the meetings of the Board Royal Professional Organisation of Civil Law Notaries (or any committee thereof) Koninklijke Notariële Beroepsorganisatie). Each Seller as well as the Purchaser acknowledges and agrees that the nominees Purchaser’s Lawyers may advise and act on behalf of the Purchaser appointed on the Board in accordance with Clause 6.2 shall resign with immediate effectrespect to this Agreement and any agreements and/or any disputes related to or resulting from this Agreement.
Appears in 2 contracts
Sources: Share Sale and Purchase Agreement (Buhrmann Nv), Share Sale and Purchase Agreement (Apollo Investment Fund Iv Lp)
Completion. 5.1. Subject to 4.1 This Agreement shall be completed forthwith upon the conditions set out signing of this Agreement at Hong Kong or at such other place or in Clauses 3.1, 3.2 and 3.3, Completion shall take place on any other manner as may be agreed between the Completion Dateparties.
5.2. The obligations 4.2 On or before Completion, Seller A and Seller B shall procure that the board of each directors of the Parties under Clause 5.3 below are interdependent of each other. The Completion shall not occur unless all of the obligations specified in Clause 5.3, have been simultaneously complied with and are fully effective.
5.3. On the Completion DateCompany pass resolutions:
(i) Subject to deductions pursuant to Clause 4.4, the Purchaser shall remit the Purchase Consideration (in immediately available fundsa) to approve the Seller’s Bank Account.
(ii) The Seller shall (a) provide to its Depository Participant duly executed DP Instructions in the prescribed form for registration of the transfer of the Sale Shares to the Demat Account Purchasers or its nominee(s) in accordance with the terms and conditions of the Purchaser (details of which shall be provided to the Seller in writing as soon as practicable after the Execution Date); (b) procure its Depository Participant to duly acknowledge such DP Instructions; (c) deliver a copy of such acknowledgement to the Purchaser; and (d) use best endeavours to procure credit of the Sale Shares to the Demat Account of the Purchaser.
(iii) The Seller shall, to the extent it is able to do so through exercise of its voting rights, procure that a Board meeting is held at which the following business shall be transacted:
(a) the appointment of directors nominated by the Purchaser on the Board shall be approvedthis Agreement; and
(b) an extra-ordinary general meeting of the shareholders of the Company to approve the deal with and resolve upon such other matters set out in Clause 5.3(iii)(a) and the amendment of the Articles of Association shall be convened.
5.4. This Agreement may be terminated on or prior to the Completion Date as follows:
(i) By the mutual written consent of the Purchaser and the Seller.
(ii) By the Seller, upon written notice to the Purchaser, if the conditions set out in Clauses 3.1 and 3.3 have not been satisfied (or satisfied subject only to Completion where applicable) or waived (where applicable) on or before 270 (two hundred seventy) days from the Execution Date or such later date as may be mutually agreed between the Parties in writing (“Long Stop Date”); provided that the Seller shall not be entitled to terminate this Agreement pursuant to this Clause 5.4(ii) if Seller’s breach of this Agreement has prevented or materially delayed the consummation of the Transactions (which term reasonably require for the purposes of this Clause 5.4(ii) shall not include the Financing);
(iii) By the Purchaser, upon written notice giving effect to the Seller, if the conditions set out in Clauses 3.2 and 3.3 have not been satisfied (or satisfied subject only to Completion where applicable) or waived (where applicable) on or before the Long Stop Date; provided that the Purchaser shall not be entitled to terminate this Agreement pursuant to this Clause 5.4(iii) if Purchaser’s breach of this Agreement has prevented or materially delayed the consummation of the Transactions.
(iv) By the Seller (if the Seller is not in material breach of the Seller Warranties, covenants or agreements under this Agreement so as to cause any of the conditions set forth in Clause 3.2 and/or 3.3(i) not to be satisfied), upon written notice to the Purchaser, if there has been a material inaccuracy of any statement or warranty, or any unremedied material breach of a covenant or other agreement, of the Purchaser contained in this Agreement, which violation, breach or inaccuracy would cause any of the conditions set forth in Clause 3.1 and/or 3.3 not to be satisfied as of the Completion Date, and such violation, breach or inaccuracy has not been waived by the Seller or cured by the Purchaser within 20 (twenty) Business Days after receipt by the Purchaser of written notice thereof from the Seller or is not reasonably capable of being cured prior to the Long Stop Date.
(v) By the Purchaser (if the Purchaser is not in material breach of the Purchaser Warranties, covenants or agreements under this Agreement so as to cause any of the conditions set forth in Clause 3.1 and/or 3.3 not to be satisfied), upon written notice to the Seller, if there has been a material inaccuracy of any statement or warranty, or any unremedied material breach of a covenant or other agreement, of the Seller contained in this Agreement, which violation, breach or inaccuracy would cause any of the conditions set forth in Clauses 3.2 and/or 3.3(i) not to be satisfied as of the Completion Date, and such violation, breach or inaccuracy has not been waived by the Purchaser or cured by the Seller within 20 (twenty) Business Days after receipt by the Seller of written notice thereof from the Purchaser or is not reasonably capable of being cured prior to the Long Stop Date.
(vi) By the Seller or the Purchaser, upon written notice to the other, if a court of competent jurisdiction or any other Governmental Authority shall have issued a final, non-appealable order preventing or otherwise prohibiting the consummation of the Transactions.
5.5. If this Agreement is terminated prior to Completion in accordance with Clause 5.4 above,
(i) this Agreement shall become void and of no further force and effect; provided, however, that the provisions of this Clause 5.5 and Clauses 1 Agreement.
4.3 At Completion, Seller A shall deliver or procure to be delivered to the Purchasers:
(Definitions and Interpretation)a) valid share certificate(s) for the Sale A Shares and, 11 if any such certificate is not in the name of Seller A, evidence satisfactory to the Purchaser that the Sale A Shares is beneficially owned by Seller A;
(Announcements and Confidentiality), 12 (Notices), 13 (Governing Law, Disputes and Jurisdiction), 14.1 (Entire Agreement), 14.6 (Variation), 14.7 (No Assignment), 14.8 (Waiver), 14.9 (Severability), 14.10 (Supersessionb) and 14.11 (Expensesvalid instrument of transfer(s) shall survive duly executed by Seller A in relation to the termination of this Agreement indefinitely and that nothing herein shall relieve any Party from any liability for fraud or any breach Sale A Shares in favour of the provisions of this Agreement prior to such termination; andrelevant Purchaser and/or its nominee;
(iic) if applicable, the Observer shall no longer be entitled to attend the meetings a certified true copy of the Board (or any committee thereof) and the nominees resolution of the board of directors of the Company referred to in Clause 4.2;
(d) such other document and deeds relating to the transactions contemplated hereby as may be required by the relevant Purchaser.
4.4 At Completion, Seller B shall deliver or procure to be delivered to the Purchasers:
(a) valid share certificate(s) for the Sale B Shares and, if any such certificate is not in the name of Seller B, evidence satisfactory to the relevant Purchaser appointed on that the Board Sale B Shares is beneficially owned by Seller B;
(b) valid instrument(s) of transfer duly executed by Seller B in accordance with relation to the Sale B Shares in favour of the relevant Purchaser and/or its nominee;
(c) a certified true copy of the resolution of the board of directors of the Company referred to in Clause 6.2 shall resign with immediate effect4.2;
(d) such other document and deeds relating to the transactions contemplated hereby as may be required by the relevant Purchaser.
Appears in 2 contracts
Sources: Sale and Purchase Agreement (C&K Group LTD), Sale and Purchase Agreement (C&K Group LTD)
Completion. 5.1. Subject 5.1 On a date to be nominated by the conditions Purchaser, being not later than five Business Days following the date on which the last of the Conditions has been satisfied or (if applicable) waived (other than those Conditions that by their nature are to be satisfied at Completion, including the Conditions set out in Clauses 3.1clauses 3.1(d)(iii) and (iv), 3.2 but subject to the satisfaction or waiver of those conditions at Completion), or on such other date as the parties may agree in writing, completion of the sale and 3.3, Completion purchase of the Shares (“Completion”) shall take place at the offices of Debevoise & ▇▇▇▇▇▇▇▇ LLP, Tower ▇▇, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇ or such other place or time as the parties may agree in writing (the date on which Completion takes place being the “Completion Date”).
5.2. The obligations of each of 5.2 As soon as reasonably practicable following the Parties under Clause 5.3 below are interdependent of each other. The Completion shall not occur unless date on which all of the obligations specified in Clause 5.3Conditions set out at clauses 3.1(a), (b), (c) and (d)(i) have been simultaneously complied satisfied, Prudential shall arrange with the court a date for the hearing at which it will seek the sanction of the court to the Scheme of Arrangement and are fully effective.
5.3the confirmation of the court to the Prudential Reduction of Capital (the “Court Sanction Date”). On the Completion Date:
(i) Subject to deductions pursuant to Clause 4.4Upon arranging such date, the Purchaser shall remit the Purchase Consideration (in immediately available funds) promptly give notice to the Seller’s Bank AccountParent of such date.
(ii) 5.3 The Seller shall (a) provide to its Depository Participant duly executed DP Instructions in Purchaser and the prescribed form for the transfer of the Sale Shares to the Demat Account of the Purchaser (details of which shall be provided to the Seller in writing as soon as practicable after the Execution Date); (b) procure its Depository Participant to duly acknowledge such DP Instructions; (c) deliver a copy of such acknowledgement to the Purchaser; and (d) use best endeavours to procure credit of the Sale Shares to the Demat Account of the Purchaser.
(iii) The Seller shall, prior to the extent it is able Court Sanction Date, agree to do so through exercise appropriate mechanics regarding the documents to be delivered pursuant to Schedule 3 such that the court will be prepared to sanction the Scheme of its voting rightsArrangement and the Prudential Reduction of Capital.
5.4 The Purchaser and the Seller respectively shall ensure that the instrument of transfer and bought notes and the sold notes referred to in paragraphs 1(a), procure that a Board meeting is held at which 1(b) and 5(a) of Schedule 3 shall not be executed in Hong Kong.
5.5 At Completion, the following business parties shall be transacted:
comply with their respective obligations in Schedule 3 (aCompletion Arrangements) in accordance with the appointment of directors nominated by the Purchaser on the Board shall be approved; and
(b) an extra-ordinary general meeting of the shareholders of the Company to approve the matters timeframes set out in Clause 5.3(iii)(a) that schedule.
5.6 Each party acknowledges and the amendment agrees that following Completion, none of the Articles of Association parties shall be convened.
5.4. This Agreement may be terminated on or prior to the Completion Date as follows:
(i) By the mutual written consent of the Purchaser and the Seller.
(ii) By the Seller, upon written notice to the Purchaser, if the conditions set out in Clauses 3.1 and 3.3 have not been satisfied (or satisfied subject only to Completion where applicable) or waived (where applicable) on or before 270 (two hundred seventy) days from the Execution Date or such later date as may be mutually agreed between the Parties in writing (“Long Stop Date”); provided that the Seller shall not be entitled to terminate rescind this Agreement pursuant agreement and, accordingly, each party, to this Clause 5.4(ii) if Seller’s breach the maximum extent permitted by Law, waives all and any rights of rescission it may have in respect of this Agreement has prevented or materially delayed the consummation of the Transactions (which term for the purposes of this Clause 5.4(ii) shall not include the Financing);
(iii) By the Purchaser, upon written notice to the Seller, if the conditions set out in Clauses 3.2 and 3.3 have not been satisfied (or satisfied subject only to Completion where applicable) or waived (where applicable) on or before the Long Stop Date; provided that the Purchaser shall not be entitled to terminate this Agreement pursuant to this Clause 5.4(iii) if Purchaser’s breach of this Agreement has prevented or materially delayed the consummation of the Transactionsagreement.
(iv) By the Seller (if the Seller is not in material breach of the Seller Warranties, covenants or agreements under this Agreement so as to cause any of the conditions set forth in Clause 3.2 and/or 3.3(i) not to be satisfied), upon written notice to the Purchaser, if there has been a material inaccuracy of any statement or warranty, or any unremedied material breach of a covenant or other agreement, of the Purchaser contained in this Agreement, which violation, breach or inaccuracy would cause any of the conditions set forth in Clause 3.1 and/or 3.3 not to be satisfied as of the Completion Date, and such violation, breach or inaccuracy has not been waived by the Seller or cured by the Purchaser within 20 (twenty) Business Days after receipt by the Purchaser of written notice thereof from the Seller or is not reasonably capable of being cured prior to the Long Stop Date.
(v) By the Purchaser (if the Purchaser is not in material breach of the Purchaser Warranties, covenants or agreements under this Agreement so as to cause any of the conditions set forth in Clause 3.1 and/or 3.3 not to be satisfied), upon written notice to the Seller, if there has been a material inaccuracy of any statement or warranty, or any unremedied material breach of a covenant or other agreement, of the Seller contained in this Agreement, which violation, breach or inaccuracy would cause any of the conditions set forth in Clauses 3.2 and/or 3.3(i) not to be satisfied as of the Completion Date, and such violation, breach or inaccuracy has not been waived by the Purchaser or cured by the Seller within 20 (twenty) Business Days after receipt by the Seller of written notice thereof from the Purchaser or is not reasonably capable of being cured prior to the Long Stop Date.
(vi) By the Seller or the Purchaser, upon written notice to the other, if a court of competent jurisdiction or any other Governmental Authority shall have issued a final, non-appealable order preventing or otherwise prohibiting the consummation of the Transactions.
5.5. If this Agreement is terminated prior to Completion in accordance with Clause 5.4 above,
(i) this Agreement shall become void and of no further force and effect; provided, however, that the provisions of this Clause 5.5 and Clauses 1 (Definitions and Interpretation), 11 (Announcements and Confidentiality), 12 (Notices), 13 (Governing Law, Disputes and Jurisdiction), 14.1 (Entire Agreement), 14.6 (Variation), 14.7 (No Assignment), 14.8 (Waiver), 14.9 (Severability), 14.10 (Supersession) and 14.11 (Expenses) shall survive the termination of this Agreement indefinitely and that nothing herein shall relieve any Party from any liability for fraud or any breach of the provisions of this Agreement prior to such termination; and
(ii) if applicable, the Observer shall no longer be entitled to attend the meetings of the Board (or any committee thereof) and the nominees of the Purchaser appointed on the Board in accordance with Clause 6.2 shall resign with immediate effect.
Appears in 2 contracts
Sources: Share Purchase Agreement, Share Purchase Agreement (American International Group Inc)
Completion. 5.1. 6.1 Subject to the conditions set out in Clauses 3.1, 3.2 and 3.3, as hereinafter provided Completion shall take place in China on the Completion DateDate between the hours of 9:00 a.m. to 5.00 p.m. or at such other place and between such other hours as may be agreed between the parties hereto.
5.2. The obligations of each 6.2 On Completion the Vendor and the BVI Company shall deliver and produce to the Purchaser :-
(a) duly executed transfers and contract notes of the Parties under Clause 5.3 below are interdependent of each other. The Completion shall not occur unless all Sale Share in favour of the obligations specified Purchaser and/or such person(s) as the Purchaser may direct or nominate, accompanied by the relative share certificates in Clause 5.3respect of the Sale Share;
(b) such waivers and/or consents and/or resolutions (whether members' or directors') as the Purchaser may require duly signed by members and/or directors;
(c) such shares or any documents of the BVI Company as the Purchaser may require to enable the Purchaser and/or its representative or nominee to be registered as holders of the Sale Share;
(d) written resolutions of the members and/or of the directors of the BVI Company and of Vendor (as the Purchaser may require) approving and/or ratifying the entering into of this Agreement and the due performance thereof;
(e) such written evidence as may be reasonably satisfactory to the Purchaser to prove that the directors of the BVI Company have, have been simultaneously complied with before the signing of this Agreement duly made, and are fully effective.will, before and on Completion, duly make full disclosure of their respective interests in, of or in relation to this Agreement or the transaction herein contemplated pursuant to the Law, the Articles of Association of the BVI Company, and otherwise;
5.3. On (f) the Completion Dateoriginals as well as duly certified copies of the board resolutions of the then existing directors :-
(i) Subject revoking all existing authorities to deductions pursuant to Clause 4.4, bankers in respect of the operation of its bank accounts and giving authority in favour of such persons as the Purchaser shall remit the Purchase Consideration (in immediately available funds) may nominate to the Seller’s Bank Account.operate such accounts;
(ii) The Seller shall appointing such persons (awithin the maximum number permitted by the Articles of Association) provide to its Depository Participant duly executed DP Instructions in as the prescribed form for Purchaser may nominate as directors; and
(iii) approving the transfer registration of the share transfers of the Sale Shares subject to the Demat Account same being duly stamped;
(g) the Existing Management Accounts which must show full compliance with the terms and conditions of this Agreement;
(h) the statutory books of the Purchaser (details of BVI Company which shall must be provided duly completed and written up to the Seller in writing as soon as practicable after the Execution Date); (b) procure its Depository Participant to duly acknowledge such DP Instructions; (c) deliver a copy of such acknowledgement to the Purchaser; and (d) use best endeavours to procure credit of the Sale Shares to the Demat Account of the Purchaser.
(iii) The Seller shall, to the extent it is able to do so through exercise of its voting rights, procure that a Board meeting is held at which the following business shall be transacted:
(a) the appointment of directors nominated by the Purchaser on the Board shall be approved; and
(b) an extra-ordinary general meeting of the shareholders of the Company to approve the matters set out in Clause 5.3(iii)(a) and the amendment of the Articles of Association shall be convened.
5.4. This Agreement may be terminated on or prior to the Completion Date as follows:date;
(i) By the mutual written consent all books, accounts, papers and records of the Purchaser and the Seller.
(ii) By the Seller, upon written notice to the Purchaser, if the conditions set out in Clauses 3.1 and 3.3 have not been satisfied (or satisfied subject only to Completion where applicable) or waived (where applicable) on or before 270 (two hundred seventy) days from the Execution Date or such later date as may be mutually agreed between the Parties in writing (“Long Stop Date”); provided that the Seller shall not be entitled to terminate this Agreement pursuant to this Clause 5.4(ii) if Seller’s breach of this Agreement has prevented or materially delayed the consummation of the Transactions (which term for the purposes of this Clause 5.4(ii) shall not include the Financing)BVI Company;
(iiij) By the Purchaser, upon written notice resignations of all the then existing directors of BVI Company from their directorships with acknowledgements signed by each of them in a form annexed hereto as APPENDIX 1 to the Sellereffect that they have no claim against the BVI Company for compensation for loss of office, if fees or disbursements or otherwise whatsoever;
(k) the conditions set out in Clauses 3.2 and 3.3 have not been satisfied (or satisfied subject only to Completion where applicable) or waived (where applicable) on or before the Long Stop Date; provided that the Purchaser shall not be entitled to terminate this Agreement pursuant to this Clause 5.4(iii) if Purchaser’s breach of this Agreement has prevented or materially delayed the consummation written resignations of the Transactions.
(iv) By the Seller (if the Seller is not in material breach then existing secretary of the Seller Warranties, covenants or agreements under this Agreement so BVI Company to take effect on the date of Completion with acknowledgements signed by him in a form annexed hereto as to cause any of the conditions set forth in Clause 3.2 and/or 3.3(i) not to be satisfied), upon written notice APPENDIX 1 to the Purchasereffect that he has no claim against the BVI Company for compensation for loss of office, if there has been a material inaccuracy of any statement fees or warranty, or any unremedied material breach of a covenant or other agreement, of the Purchaser contained in this Agreement, which violation, breach or inaccuracy would cause any of the conditions set forth in Clause 3.1 and/or 3.3 not to be satisfied as of the Completion Date, and such violation, breach or inaccuracy has not been waived by the Seller or cured by the Purchaser within 20 (twenty) Business Days after receipt by the Purchaser of written notice thereof from the Seller or is not reasonably capable of being cured prior to the Long Stop Date.
(v) By the Purchaser (if the Purchaser is not in material breach of the Purchaser Warranties, covenants or agreements under this Agreement so as to cause any of the conditions set forth in Clause 3.1 and/or 3.3 not to be satisfied), upon written notice to the Seller, if there has been a material inaccuracy of any statement or warranty, or any unremedied material breach of a covenant or other agreement, of the Seller contained in this Agreement, which violation, breach or inaccuracy would cause any of the conditions set forth in Clauses 3.2 and/or 3.3(i) not to be satisfied as of the Completion Date, and such violation, breach or inaccuracy has not been waived by the Purchaser or cured by the Seller within 20 (twenty) Business Days after receipt by the Seller of written notice thereof from the Purchaser or is not reasonably capable of being cured prior to the Long Stop Date.
(vi) By the Seller or the Purchaser, upon written notice to the other, if a court of competent jurisdiction or any other Governmental Authority shall have issued a final, non-appealable order preventing disbursements or otherwise prohibiting the consummation of the Transactions.
5.5. If this Agreement is terminated prior to Completion in accordance with Clause 5.4 above,
(i) this Agreement shall become void and of no further force and effect; provided, however, that the provisions of this Clause 5.5 and Clauses 1 (Definitions and Interpretation), 11 (Announcements and Confidentiality), 12 (Notices), 13 (Governing Law, Disputes and Jurisdiction), 14.1 (Entire Agreement), 14.6 (Variation), 14.7 (No Assignment), 14.8 (Waiver), 14.9 (Severability), 14.10 (Supersession) and 14.11 (Expenses) shall survive the termination of this Agreement indefinitely and that nothing herein shall relieve any Party from any liability for fraud or any breach of the provisions of this Agreement prior to such termination; and
(ii) if applicable, the Observer shall no longer be entitled to attend the meetings of the Board (or any committee thereof) and the nominees of the Purchaser appointed on the Board in accordance with Clause 6.2 shall resign with immediate effect.whatsoever;
Appears in 2 contracts
Sources: Sale and Purchase of Shares (Kubla Khan Inc), Sale and Purchase of Shares (China Finance, Inc.)
Completion. 5.1. 6.1 Subject to the conditions set out in Clauses 3.1, 3.2 and 3.3Clause 5, Completion shall take place at the offices of the Vendor's Solicitors by not later than 12 noon on the Completion Date.
5.2. The obligations Date when all (unless the parties otherwise agree) of each of the Parties under Clause 5.3 below are interdependent of each other. The Completion shall not occur unless all of the obligations specified in Clause 5.3, have been simultaneously complied with and are fully effective.
5.3. On the Completion Date:
(i) Subject to deductions pursuant to Clause 4.4, the Purchaser shall remit the Purchase Consideration (in immediately available funds) to the Seller’s Bank Account.
(ii) The Seller shall (a) provide to its Depository Participant duly executed DP Instructions in the prescribed form for the transfer of the Sale Shares to the Demat Account of the Purchaser (details of which shall be provided to the Seller in writing as soon as practicable after the Execution Date); (b) procure its Depository Participant to duly acknowledge such DP Instructions; (c) deliver a copy of such acknowledgement to the Purchaser; and (d) use best endeavours to procure credit of the Sale Shares to the Demat Account of the Purchaser.
(iii) The Seller shall, to the extent it is able to do so through exercise of its voting rights, procure that a Board meeting is held at which the following business shall be transacted:
6.1.1 the Vendor shall complete the sale of the Terminals (upon the terms of the Property Conditions Schedules) and the Business and the Assets;
6.1.2 the Purchaser shall pay to the Vendor such sum as is provided for in Clause 4.1;
6.1.3 the Vendor shall pay the Escrow Amount into the Escrow Account (and the Escrow Terms shall then apply thereto) for the repair of tanks 1 and 3 at the Runcorn terminal;
6.1.4 the Vendor shall give possession to the Purchaser of the Terminals and the Assets hereby agreed to be sold;
6.1.5 the Vendor and the Purchaser shall complete the sub-lease of ▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ House, ▇▇▇▇▇▇▇▇▇'▇ Walk, Maidenhead; and
6.1.6 the Vendor shall deliver or make available to the Purchaser:
(a) the appointment of directors nominated by the Purchaser on the Board shall be approved; andBooks and Records;
(b) an extra-ordinary general such of the Assets as are capable of transfer by delivery (it being agreed that such delivery shall take place at the place where they are situated);
(c) the software licences or registered user agreements for those I.T. Systems where the licences or agreements are equipment specific, together with assignments of such licences or agreements for those IT Systems which are subject to assignable licences or agreements, and notices to the licensors for those licences identified as "equipment specific" (in each case as identified on the Schedule of Software Applications in Schedule 18);
(d) duly executed assignments and/or novations of the Key Customer Contracts (and of such other Customer Contracts as may then be available) and consents thereto in the agreed form;
(e) duly executed assignments and/or novations of such of the Supplier Contracts as may then be available;
(f) the documents relating to the Permits described in Column 5 (under the heading "Completion Document") in Schedule 10;
(g) a certified copy of Board resolutions passed at a meeting of the shareholders Vendor's board of directors at which its directors shall have approved the Vendor entering into this Agreement and the agreements and arrangements contemplated under this Agreement;
(h) releases under seal of any Encumbrance to which any of the Company to approve the matters set out in Clause 5.3(iii)(a) and the amendment of the Articles of Association shall be convened.
5.4. This Agreement may be terminated on or prior Assets are subject duly executed by those entitled to the Completion Date as follows:
(i) By the mutual written consent of the Purchaser and the Seller.
(ii) By the Sellerbenefit thereof, upon written notice to the Purchaser, if the conditions set out in Clauses 3.1 and 3.3 have not been satisfied (or satisfied subject only to Completion where applicable) or waived (where applicable) on or before 270 (two hundred seventy) days from the Execution Date or such later date as may be mutually agreed between the Parties in writing (“Long Stop Date”); provided that the Seller shall not be entitled to terminate this Agreement pursuant to this Clause 5.4(ii) if Seller’s breach of this Agreement has prevented or materially delayed the consummation of the Transactions (which term for the purposes of this Clause 5.4(ii) shall not include the Financing);
(iii) By the Purchaser, upon written notice to the Seller, if the conditions set out in Clauses 3.2 and 3.3 have not been satisfied (or satisfied subject only to Completion where applicable) or waived (where applicable) on or before the Long Stop Date; provided that the Purchaser shall not be entitled to terminate this Agreement pursuant to this Clause 5.4(iii) if Purchaser’s breach of this Agreement has prevented or materially delayed the consummation of the Transactions.
(iv) By the Seller (if the Seller is not in material breach of the Seller Warranties, covenants or agreements under this Agreement so as to cause any of the conditions set forth in Clause 3.2 and/or 3.3(i) not to be satisfied), upon written notice to the Purchaser, if there has been a material inaccuracy of any statement or warranty, or any unremedied material breach of a covenant or other agreement, of the Purchaser contained in this Agreement, which violation, breach or inaccuracy would cause any of the conditions set forth in Clause 3.1 and/or 3.3 not to be satisfied as of the Completion Date, and such violation, breach or inaccuracy has not been waived by the Seller or cured by the Purchaser within 20 (twenty) Business Days after receipt by the Purchaser of written notice thereof from the Seller or is not reasonably capable of being cured prior to the Long Stop Date.
(v) By the Purchaser (if the Purchaser is not in material breach of the Purchaser Warranties, covenants or agreements under this Agreement so as to cause any of the conditions set forth in Clause 3.1 and/or 3.3 not to be satisfied), upon written notice to the Seller, if there has been a material inaccuracy of any statement or warranty, or any unremedied material breach of a covenant or other agreement, of the Seller contained in this Agreement, which violation, breach or inaccuracy would cause any of the conditions set forth in Clauses 3.2 and/or 3.3(i) not to be satisfied as of the Completion Date, and such violation, breach or inaccuracy has not been waived by the Purchaser or cured by the Seller within 20 (twenty) Business Days after receipt by the Seller of written notice thereof from the Purchaser or is not reasonably capable of being cured prior to the Long Stop Date.
(vi) By the Seller or the Purchaser, upon written notice to the other, if a court of competent jurisdiction or any other Governmental Authority shall have issued a final, non-appealable order preventing or otherwise prohibiting the consummation of the Transactions.
5.5. If this Agreement is terminated prior to Completion in accordance with Clause 5.4 above,
(i) this Agreement shall become void and of no further force and effect; provided, however, that the provisions of this Clause 5.5 and Clauses 1 (Definitions and Interpretation), 11 (Announcements and Confidentiality), 12 (Notices), 13 (Governing Law, Disputes and Jurisdiction), 14.1 (Entire Agreement), 14.6 (Variation), 14.7 (No Assignment), 14.8 (Waiver), 14.9 (Severability), 14.10 (Supersession) and 14.11 (Expenses) shall survive the termination of this Agreement indefinitely and that nothing herein shall relieve any Party from any liability for fraud or any breach of the provisions of this Agreement prior to such termination; and
(ii) if applicable, the Observer shall no longer be entitled to attend the meetings of the Board (or any committee thereof) and the nominees of the Purchaser appointed on the Board in accordance with Clause 6.2 shall resign with immediate effect.clause 6.1.6
Appears in 2 contracts
Sources: Sale and Purchase Agreement (Kaneb Pipe Line Partners L P), Sale and Purchase Agreement (Kaneb Pipe Line Partners L P)
Completion. 5.1. Subject to the conditions set out in Clauses 3.1, 3.2 and 3.3, 5.1 Completion shall take place at the offices of the Seller’s Solicitors on the Completion Date.
5.2. The obligations of each of the Parties under Clause 5.3 below are interdependent of each other. The Completion shall not occur unless all of the obligations specified 5.2 Subject to any extension in Clause 5.3accordance with clause 5.7, have been simultaneously complied with and are fully effective.
5.3. On the Completion Date:
(i) Subject to deductions pursuant to Clause 4.4, the Purchaser shall remit the Purchase Consideration (in immediately available funds) to the Seller’s Bank Account.
(ii) The Seller shall (a) provide to its Depository Participant duly executed DP Instructions in the prescribed form for the transfer of the Sale Shares to the Demat Account of the Purchaser (details of which shall be provided to the Seller in writing as soon as practicable after the Execution Date); (b) procure its Depository Participant to duly acknowledge such DP Instructions; (c) deliver a copy of such acknowledgement to the Purchaser; and (d) use best endeavours to procure credit of the Sale Shares to the Demat Account of the Purchaser.
(iii) The Seller shall, to the extent it is able to do so through exercise of its voting rights, procure that a Board meeting is held at which the following business shall be transactedDate means:
(a) the appointment fifth Business Day after all of directors nominated the Conditions are satisfied or waived; or
(b) any other date agreed in writing by Seller and Buyer.
5.3 At least five Business Days prior to the Purchaser on date fixed for Completion, Seller, acting reasonably and in good faith (but otherwise without liability), shall provide to Buyer a written estimate of the Board shall be approvedCompletion Accounts and the Statement, including each of the following, together with a certificate from the Seller’s accountants as to the accuracy of each such estimate:
(a) the Working Capital Amount (the “Estimated Working Capital Amount”);
(b) the Debt (the “Estimated Debt”); and
(bc) the Cash (the “Estimated Cash”).
5.4 On Completion the Seller or the Czech Seller (as the case may be) shall deliver to or, if the Buyer shall so agree, make available to the Buyer:
(a) an extra-ordinary general extract of the minutes of a duly held meeting of the shareholders directors (or a duly constituted committee thereof) of each of the Company to approve the matters set out in Clause 5.3(iii)(a) Seller and the amendment Czech Seller (and, to the extent available, the Seller Guarantor) authorising the execution by each of the Articles Seller, the Czech Seller and the Seller Guarantor of Association shall this document and any document to be conveneddelivered by the Seller, the Czech Seller and/or the Seller Guarantor at or prior to Completion (including each Transaction Agreement) and, where such execution is authorised by a committee of the board of directors of the Seller, the Czech Seller and/or the Seller Guarantor, an extract of the minutes of a duly held meeting of the directors constituting such committee or the relevant extract thereof);
(b) transfers in common form relating to all the Company Shares duly executed in favour of the Buyer (or as it may direct);
(c) a resolution of the Czech Seller, as the sole shareholder of Cyberview Czech, acting in the capacity of Cyberview Czech’s general meeting in accordance with Section 132 of Act No. 513/1991 Coll., Commercial Code as amended, of the Czech Republic, resolving to divide the Czech Share into two parts (consistent with the division of the Czech Share as contemplated in the Czech Transfer Agreement), such resolution being in the form of the Czech notarial deed prepared by a Czech notary in the Czech Republic, in a form acceptable to the Buyer, acting reasonably;
5.4. This (d) the Czech Transfer Agreement duly executed in favour of the Buyer and SG Global duly notarised and apostilled;
(e) share certificates representing the Company Shares;
(f) resignations in the Agreed Form duly executed as deeds, of the directors of any Group Company set forth on schedule 10, or as the Buyer may specify by notice to the Seller no later than 5 Business Days prior to Completion, from their offices as director any Group Company containing a confirmation that they have no claims (whether statutory, contractual or otherwise) against any Group Company;
(g) if so required by the Buyer no later than 5 Business Days prior to Completion, the written resignations of the auditors of each Group Company containing an acknowledgement that they have no claim against any Group Company for compensation for loss of office, professional fees or otherwise and a statement under section 519(1) of the Companies ▇▇▇ ▇▇▇▇;
(h) the common seals, certificates of incorporation and statutory books, share certificate books and cheque books of each Group Company;
(i) an officer’s certificate executed on behalf of the Seller to the effect that (i) the Warranties are true and correct and not misleading in any respect at Completion that would give rise to a right to terminate under clause 14.1(e); and (ii) there has been no material breach by the Seller of any of its obligations under this Agreement required to be performed at or prior to Completion;
(j) each Transaction Agreement duly executed by the Seller and each of its Related Persons that is required to be a party thereto;
(k) title deeds and other documents relating to the Properties, excluding the Manchester Property (except to the extent that the same are in the possession of mortgagees pursuant to mortgages disclosed in schedule 5);
(l) irrevocable powers of attorney from the Seller in a form satisfactory to the Buyer (acting reasonably) relating to the exercise of rights in respect of the Shares pending their registration in the name of the Buyer and/or its nominee;
(m) to the extent not in the possession of any Group Company all books of account concerning the businesses of that Group Company;
(n) to the extent not in the possession of any Group Company, copies of all licences, consents, permits and authorisations obtained by or issued to that Group Company;
(o) to the extent not in the possession of any Group Company, all books and records of that Group Company relating to the employees and/or directors of that Group Company;
(p) an acknowledgement from the Seller in a form satisfactory to the Buyer (acting reasonably), to the effect that: (i) there is no Intra-Group Indebtedness owing at Completion; (ii) all Contracts between a member of the Seller’s Group, on the one hand, and a Group Company, on the other hand, other than the Transaction Agreements, have been terminated and have ceased to have effect on or prior to Completion, and that all rights and obligations of the parties thereto thereunder have ceased to have effect; (iii) the Pre-Completion Date Dividends have been paid prior to Completion and specifying the amount or character thereof; and (iv) no Group Company has any liability or obligation in respect of Financial Debt as followsat Completion;
(q) share certificates relating to all of the issued shares that the Company owns in the capital of each of the Subsidiaries;
(r) duly executed releases in a form acceptable to the Buyer, acting reasonably, of all Encumbrances, except Permitted Encumbrances, to which any of the Group Companies is party together with any forms or other documents to release or evidence release of such Encumbrances in any relevant jurisdiction;
(s) the deed of amendment, substitution of principal employer and cessation of participation, in a form acceptable to the Buyer, acting reasonably, duly executed by the Seller and the Trustee of the IGT UK Group Pension Scheme;
(t) a resolution of the Czech Seller, the sole shareholder of Cyberview Czech, acting in the capacity of Cyberview Czech’s general meeting in accordance with Section 132 of Act No. 513/1991 Coll., Commercial Code as amended, of the Czech Republic, resolving to:
(i) By the mutual written consent remove each of the Purchaser and the Seller.existing directors;
(ii) By the Seller, upon written notice to the Purchaser, if the conditions set out in Clauses 3.1 and 3.3 have not been satisfied (or satisfied subject only to Completion where applicable) or waived (where applicable) on or before 270 (two hundred seventy) days from the Execution Date or such later date as may be mutually agreed between the Parties in writing (“Long Stop Date”); provided that the Seller shall not be entitled to terminate this Agreement pursuant to this Clause 5.4(ii) if Seller’s breach of this Agreement has prevented or materially delayed the consummation appoint each of the Transactions (which term for persons as the purposes Buyer nominates to be the directors of this Clause 5.4(ii) shall not include the Financing)Cyberview Czech;
(iii) By appoint such person as the Purchaser, upon written notice Buyer nominates to be the Seller, if the conditions set out in Clauses 3.2 and 3.3 have not been satisfied (or satisfied subject only to Completion where applicable) or waived (where applicable) on or before the Long Stop Dateauditor; provided that the Purchaser shall not be entitled to terminate this Agreement pursuant to this Clause 5.4(iii) if Purchaser’s breach of this Agreement has prevented or materially delayed the consummation of the Transactions.and
(iv) By amend the Seller (if the Seller is not in material breach articles of the Seller Warranties, covenants or agreements under this Agreement so as to cause any association of the conditions set forth in Clause 3.2 and/or 3.3(i) not to be satisfied), upon written notice to the Purchaser, if there has been a material inaccuracy of any statement or warranty, or any unremedied material breach of a covenant or other agreement, of the Purchaser contained in this Agreement, which violation, breach or inaccuracy would cause any of the conditions set forth in Clause 3.1 and/or 3.3 not to be satisfied as of the Completion Date, and such violation, breach or inaccuracy has not been waived by the Seller or cured by the Purchaser within 20 (twenty) Business Days after receipt by the Purchaser of written notice thereof from the Seller or is not reasonably capable of being cured prior to the Long Stop Date.
(v) By the Purchaser (if the Purchaser is not in material breach of the Purchaser Warranties, covenants or agreements under this Agreement so as to cause any of the conditions set forth in Clause 3.1 and/or 3.3 not to be satisfied), upon written notice to the Seller, if there has been a material inaccuracy of any statement or warranty, or any unremedied material breach of a covenant or other agreement, of the Seller contained in this Agreement, which violation, breach or inaccuracy would cause any of the conditions set forth in Clauses 3.2 and/or 3.3(i) not to be satisfied as of the Completion Date, and such violation, breach or inaccuracy has not been waived by the Purchaser or cured by the Seller within 20 (twenty) Business Days after receipt by the Seller of written notice thereof from the Purchaser or is not reasonably capable of being cured prior to the Long Stop Date.
(vi) By the Seller or the Purchaser, upon written notice to the other, if a court of competent jurisdiction or any other Governmental Authority shall have issued a final, non-appealable order preventing or otherwise prohibiting the consummation of the Transactions.
5.5. If this Agreement is terminated prior to Completion Cyberview Czech in accordance with Clause 5.4 above,the Buyer’s instructions to: (i) change the registered office; and (ii) change the accounting reference date to 31 December; such resolution to be in the form of a Czech notarial deed prepared by a Czech notary in the Czech Republic, in a form acceptable to the Buyer, acting reasonably;
(u) either:
(i) this Agreement shall become void an original extract from the companies register of the Czech Seller with an apostille certification, such extract showing the name, the registered office and the directors of no further force the Czech Seller; or
(ii) an original or certified copy of the certificate of incorporation of the Czech Seller, with an apostille certification, and effect; providedan original confirmation of the Czech Seller’s company secretary (with an apostille certification) stating the name, however, registered office and names of directors of the Czech Seller as well as confirmation that the provisions of this Clause 5.5 and Clauses 1 person who shall sign the Czech Transfer Agreement is authorized to do so (Definitions and Interpretationif applicable), 11 (Announcements and Confidentiality), 12 (Notices), 13 (Governing Law, Disputes and Jurisdiction), 14.1 (Entire Agreement), 14.6 (Variation), 14.7 (No Assignment), 14.8 (Waiver), 14.9 (Severability), 14.10 (Supersession) and 14.11 (Expenses) shall survive the termination of this Agreement indefinitely and that nothing herein shall relieve any Party from any liability for fraud or any breach of the provisions of this Agreement prior to such termination; and
(iiv) if applicable, the Observer shall no longer be entitled original of a power of attorney, with an apostille certification, pursuant to attend which the meetings Czech Transfer Agreement has been executed by the Czech Seller;
(w) evidence in a form acceptable to the Buyer, acting reasonably, of the Board termination of each overdraft facility of each Group Company; and
(or any committee thereofx) the deed of cessation of participation, in a form acceptable to the Buyer, acting reasonably, duly executed by the Seller and the nominees Trustee of the Purchaser appointed IGT-UK-Group Limited Group Life Assurance Plan.
5.5 The Seller and the Czech Seller, as applicable, shall procure the passing of board resolutions of each Group Company, in a form acceptable to the Buyer, acting reasonably, at Completion (in the case of Cyberview Czech the resolution may be adopted in the Czech Republic and delivered at Completion in a copy by e-mail or facsimile, with the original being delivered to the Buyer promptly, and in any event within five Business Days, after Completion):
(a) sanctioning for registration (subject where necessary to due stamping) the transfers in respect of the Shares, except for Cyberview Czech;
(b) appointing such persons as the Buyer nominates to be the directors and secretary of each Group Company, except for Cyberview Czech;
(c) appointing such persons as the Buyer nominates to be the auditors of each Group Company, except for Cyberview Czech;
(d) revoking and/or revising all banks mandates for each Group Company as the Buyer requires, and giving authority in favour of such persons as the Buyer may nominate to operate the bank accounts thereof;
(e) resolving that the registered office of each Group Company be changed as the Buyer requires; and
(f) changing the accounting reference date of each Group Company, except for Cyberview Czech, to 31 December.
5.6 By no later than 2.00 p.m. on the Board Completion Date, subject to the Seller having complied with all the provisions of clause 5.4 and clause 5.5, the Buyer shall:
(a) provide for the transfer by CHAPS of the Completion Payment to the Seller’s Account and the receipt of the Seller’s Solicitors shall be a good discharge to the Buyer (and, for the avoidance of doubt, the Buyer shall be under no obligation whatsoever with respect to the apportionment of the Completion Payment between the Seller and the Czech Seller);
(b) deliver to the Seller the Tax Deed duly executed by the Buyer; and
(c) deliver to the Seller each other Transaction Agreement duly executed by the member of the Buyer’s Group expressed to be a party thereto (including the notarised and apostilled Czech Transfer Agreement).
5.7 If in accordance any respect the material obligations of the Seller or the Czech Seller, on the one hand, or the Buyer on the other hand, are not complied with Clause 6.2 on Completion, the Buyer, if the Seller or Czech Seller is in default of its material obligations, or the Seller and Czech Seller if the Buyer is in default of its material obligations, shall resign with immediate effectnot be obliged to complete the sale and purchase of the Shares and may, in its absolute discretion, by written notice to the other party at the time Completion would otherwise be due to take place:
(a) terminate this Agreement; or
(b) elect to defer Completion by not more than 20 Business Days after the original date for Completion to such other date as it may specify in such notice (in which event the provisions of this clause 5.7 shall apply, mutatis mutandis, if the Seller or the Czech Seller, on the one hand, or the Buyer, on the other, fails or is unable to perform any such obligations), provided that neither the Seller nor the Czech Seller shall be able to exercise such rights if the Buyer can demonstrate to the reasonable satisfaction of the Seller that it has arranged for the transfer of the Completion Payment to the Seller’s Account, value date the Completion Date.
Appears in 2 contracts
Sources: Share Purchase Agreement, Share Purchase Agreement (Scientific Games Corp)
Completion. 5.1. Subject to 9.1 Completion shall take place at the offices of NautaDutilh N.V. at ▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇▇ on the last day of the month in which fulfilment or waiver of the conditions set out in Clauses 3.1clause 4 (Conditions to Completion) takes place, 3.2 except that where less than five Business Days remain between such fulfilment and 3.3service and the last day of the month, Completion shall take place:
(A) on the last day of the following month; or
(B) at such other location, time or date as may be agreed between the Sellers, it being understood that the transfers of the Shares and the JV Co Shares shall take place on Completion at the offices of the Notary by way of execution of the Deeds of Transfer before the Notary.
9.2 At Completion, the parties shall comply with their respective obligations in sub-clauses 2.1 and 2.2 (in each case as applicable) and the Sellers shall do those things listed in Part A (Seller’s obligations) and Part D (Execution of Deeds of Transfer) of Schedule 2 (Completion arrangements); the Purchaser shall do, and Liberty Global shall procure that the Purchaser does, those things listed in Part B (Purchaser’s obligations) of Schedule 2 (Completion arrangements); and the Guarantors shall do those things listed in Part E (Guarantors’ obligations) of Schedule 2 (Completion arrangements). Completion shall take place in accordance with Part C (General) of Schedule 2 (Completion arrangements).
9.3 No party shall be obliged to complete any of the transactions set out in sub-clauses 2.1 and 2.2 or carry out any of the steps set out in Schedule 2 (Completion arrangements) unless sub-clauses 6.1, 6.2, 6.5(C) and 6.6 or 6.7 (as applicable) have been complied with and irrevocable arrangements are in place for all such transactions and steps to be completed by all relevant parties on the Completion Date in accordance with the sequence of events set out in this Agreement. For the avoidance of doubt, (A) both the beneficial and legal ownership of the Liberty Global Target Company Shares and the Vodafone Target Company Shares will transfer to Purchaser at Completion and not before and (B) both the beneficial and legal ownership of the JV Co Shares will transfer to Vodafone at Completion and not before.
9.4 If the Estimated Vodafone Equalisation Consideration is a positive number, then Vodafone hereby assigns to Liberty Global (for no additional consideration), with effect from Completion, either (i) that portion of the receivable owing to Vodafone from the Purchaser under sub-clause 2.3 which is of an amount equal to the Estimated Vodafone Equalisation Consideration or (ii) if the receivable owing to Vodafone from the Purchaser under sub-clause 2.3 is equal to or less than the Estimated Vodafone Equalisation Consideration, the full amount of such receivable (both (i) and (ii) being the “Relevant Assigned Amount”).
9.5 The Purchaser shall pay to each Seller the amount owing to that Seller under sub-clause 2.3 (such amounts reflecting, for the avoidance of doubt, the assignment of the Relevant Assigned Amount under sub-clause 9.4) out of the Escrowed Proceeds as soon as practicable after execution of the Deeds of Transfer as part of the distribution or payment of the Escrowed Proceeds to each Retained Group. The Sellers agree to use all reasonable endeavours to procure the distribution or payment of the Escrowed Proceeds to the Purchaser as soon as practicable after Completion and in any event prior to the date falling three Business Days after the Completion Date.
5.2. The obligations of each of the Parties under Clause 5.3 below are interdependent of each other. The Completion shall not occur unless all of the obligations specified in Clause 5.3, have been simultaneously complied with and are fully effective.
5.3. On the Completion Date:
(i) Subject to deductions pursuant to Clause 4.4, the Purchaser shall remit the Purchase Consideration (in immediately available funds) to the Seller’s Bank Account.
(ii) The Seller shall (a) provide to its Depository Participant duly executed DP Instructions in the prescribed form for the transfer of the Sale Shares to the Demat Account of the Purchaser (details of which shall be provided to the Seller in writing as soon as practicable after the Execution Date); (b) procure its Depository Participant to duly acknowledge such DP Instructions; (c) deliver a copy of such acknowledgement to the Purchaser; and (d) use best endeavours to procure credit of the Sale Shares to the Demat Account of the Purchaser.
(iii) The Seller shall, to 9.6 To the extent it is able to do so through exercise of its voting rights, procure that a Board meeting is held at which the following business shall be transacted:
(a) the appointment of directors nominated by the Purchaser on the Board shall be approved; and
(b) an extra-ordinary general meeting of the shareholders of the Company to approve the matters set out in Clause 5.3(iii)(a) and the amendment of the Articles of Association shall be convened.
5.4. This Agreement may be terminated on or prior to the Completion Date as follows:
(i) By the mutual written consent of the Purchaser and the Seller.
(ii) By the Seller, upon written notice to the Purchaser, if the conditions set out in Clauses 3.1 and 3.3 have not been satisfied (or satisfied subject only to Completion where applicable) or waived (where applicable) on or before 270 (two hundred seventy) days from the Execution Date or such later date as may be mutually agreed between the Parties in writing (“Long Stop Date”); provided that the Seller shall not be entitled receivable owing to terminate this Agreement pursuant to this Clause 5.4(ii) if Seller’s breach of this Agreement has prevented or materially delayed the consummation of the Transactions (which term for the purposes of this Clause 5.4(ii) shall not include the Financing);
(iii) By the Purchaser, upon written notice to the Seller, if the conditions set out in Clauses 3.2 and 3.3 have not been satisfied (or satisfied subject only to Completion where applicable) or waived (where applicable) on or before the Long Stop Date; provided that the Purchaser shall not be entitled to terminate this Agreement pursuant to this Clause 5.4(iii) if Purchaser’s breach of this Agreement has prevented or materially delayed the consummation of the Transactions.
(iv) By the Seller (if the Seller is not in material breach of the Seller Warranties, covenants or agreements under this Agreement so as to cause any of the conditions set forth in Clause 3.2 and/or 3.3(i) not to be satisfied), upon written notice to the Purchaser, if there has been a material inaccuracy of any statement or warranty, or any unremedied material breach of a covenant or other agreement, of the Purchaser contained in this Agreement, which violation, breach or inaccuracy would cause any of the conditions set forth in Clause 3.1 and/or 3.3 not to be satisfied as of the Completion Date, and such violation, breach or inaccuracy has not been waived by the Seller or cured by the Purchaser within 20 (twenty) Business Days after receipt by the Purchaser of written notice thereof from the Seller or is not reasonably capable of being cured prior to the Long Stop Date.
(v) By the Purchaser (if the Purchaser is not in material breach of the Purchaser Warranties, covenants or agreements under this Agreement so as to cause any of the conditions set forth in Clause 3.1 and/or 3.3 not to be satisfied), upon written notice to the Seller, if there has been a material inaccuracy of any statement or warranty, or any unremedied material breach of a covenant or other agreement, of the Seller contained in this Agreement, which violation, breach or inaccuracy would cause any of the conditions set forth in Clauses 3.2 and/or 3.3(i) not to be satisfied as of the Completion Date, and such violation, breach or inaccuracy has not been waived by the Purchaser or cured by the Seller within 20 (twenty) Business Days after receipt by the Seller of written notice thereof Vodafone from the Purchaser or under sub-clause 2.3 is not reasonably capable of being cured prior less than the Estimated Vodafone Equalisation Consideration, Vodafone shall pay to Liberty Global an amount equal to any such shortfall (the “Estimated Equalisation Consideration Shortfall”). Vodafone shall pay the Estimated Equalisation Consideration Shortfall in cleared funds to the Long Stop Date.
(vi) By Liberty Global Account on the Seller or the Purchaser, upon written notice to the other, if a court of competent jurisdiction or any other Governmental Authority shall have issued a final, non-appealable order preventing or otherwise prohibiting the consummation of the Transactions.
5.5. If this Agreement is terminated prior to first Business Day following Completion in accordance with Clause 5.4 above,clause 29.
(i) this Agreement shall become void and of no further force and effect; provided, however, 9.7 In the event that the provisions of this Clause 5.5 and Clauses 1 (Definitions and Interpretation), 11 (Announcements and Confidentiality), 12 (Notices), 13 (Governing Law, Disputes and Jurisdiction), 14.1 (Entire Agreement), 14.6 (Variation), 14.7 (No Assignment), 14.8 (Waiver), 14.9 (Severability), 14.10 (Supersession) and 14.11 (Expenses) shall survive Purchaser has not discharged its obligation to pay the termination of this Agreement indefinitely and that nothing herein shall relieve any Party from any liability for fraud or any breach of the provisions of this Agreement prior amount owing to such termination; and
(ii) if applicable, the Observer shall no longer be entitled to attend the meetings of the Board (or any committee thereof) and the nominees of the Purchaser appointed on the Board Liberty Global under sub-clause 2.3 in accordance with Clause 6.2 sub-clause 9.5 (including taking into account the assignment of the Relevant Assigned Amount under sub-clause 9.4) within ten Business Days after the Completion Date (the “Estimated Equalisation Payment Deadline”), Vodafone shall resign pay to Liberty Global the Estimated Vodafone Equalisation Consideration (less the amount of any Estimated Equalisation Consideration Shortfall already paid by Vodafone to Liberty Global in accordance with sub-clause 9.6) in cleared funds to the Liberty Global Account on the Estimated Equalisation Payment Deadline in accordance with clause 29. To the extent that Vodafone pays such amount to Liberty Global in accordance with this sub-clause 9.7, then Liberty Global hereby assigns to Vodafone (for nil consideration), and with immediate effect, the Relevant Assigned Amount receivable owing to Liberty Global from the Purchaser pursuant to sub-clauses 2.3 and 9.
Appears in 2 contracts
Sources: Contribution Agreement (Vodafone Group Public LTD Co), Contribution and Transfer Agreement (Liberty Global PLC)
Completion. 5.1. Subject to the conditions set out in Clauses 3.1, 3.2 and 3.3, 6.1 Completion shall take place at the offices of AWI’s Solicitors (i) on the last Business Day of the month in which the last of the Conditions has been satisfied in accordance with this Agreement, or (ii) if the last of the Conditions is satisfied less than five (5) Business Days from the end of the month, on the last Business Day of the following month, or (iii) at such other time and venue as may be agreed in writing between the Parties (the “Completion Date”).
6.2 AWI shall notify (or shall procure a Group Company to notify) the Purchaser by e-mail no later than five (5) Business Days prior to the Completion Date of the following (the “Pre-Completion Notification”):
(a) AWI’s good-faith estimate of the Consideration (the “Estimated Consideration”); and
(b) the relevant bank accounts details into which the Consideration is to be paid on the Completion DateDate (the “AWI Account”).
5.2. The obligations of each of the Parties under Clause 5.3 below are interdependent of each other. The Completion shall not occur unless all of the obligations specified in Clause 5.3, have been simultaneously complied with and are fully effective.
5.3. 6.3 On the Completion Date:
(ia) Subject to deductions pursuant to Clause 4.4, the Purchaser shall remit the Purchase Consideration deliver or take (in immediately available funds) or cause to the Seller’s Bank Account.
(ii) The Seller shall (a) provide to its Depository Participant duly executed DP Instructions in the prescribed form for the transfer of the Sale Shares to the Demat Account of the Purchaser (details of which shall be provided to the Seller in writing as soon as practicable after the Execution Date); (b) procure its Depository Participant to duly acknowledge such DP Instructions; (c) deliver a copy of such acknowledgement to the Purchaser; and (d) use best endeavours to procure credit of the Sale Shares to the Demat Account of the Purchaser.
(iii) The Seller shall, to the extent it is able to do so through exercise of its voting rights, procure that a Board meeting is held at which the following business shall be transacted:
(adelivered or taken) the appointment documents and actions listed in Part 1 of directors nominated by the Purchaser on the Board shall be approvedSchedule 7 (Completion); and
(b) an extrasubject to compliance with Clause 6.3(a), AWI shall deliver or take (or cause to be delivered and taken) the documents and actions listed in Part 2 of Schedule 7 (Completion).
6.4 If any foregoing provision of this Clause 6 is not complied with in any material respect, the Purchaser (in the case of non-ordinary general meeting compliance by AWI) or AWI (in the case of non-compliance by the shareholders of the Company to approve the matters set out in Clause 5.3(iii)(aPurchaser) and the amendment of the Articles of Association shall be convened.entitled (in addition to and without prejudice to all other rights or remedies available to it, including the right to claim damages) by written notice to the other Party, served on the Completion Date:
5.4. This Agreement may be terminated on or prior (a) to effect Completion so far as practicable having regard to any defaults which have occurred; or
(b) to fix a new date for Completion not being later than five Business Days following the Completion Date in which case the foregoing provisions of this Clause 6.4 shall apply to the Completion Date as follows:so deferred; or
(ic) By in the mutual written consent case of material non-compliance with Clause 6.3 (which, in the Purchaser case of AWI, shall only arise where AWI has failed to deliver (or procure the delivery of) paragraphs 1.1(a), 1.1(b) or 1.1(c) of Part 2 of Schedule 7 (Completion), and in the Seller.
(ii) By the Seller, upon written notice to case of the Purchaser, if the conditions set out in Clauses 3.1 and 3.3 have not been satisfied (or satisfied subject shall only to Completion arise where applicable) or waived (where applicable) on or before 270 (two hundred seventy) days from the Execution Date or such later date as may be mutually agreed between the Parties in writing (“Long Stop Date”); provided that the Seller shall not be entitled to terminate this Agreement pursuant to this Clause 5.4(ii) if Seller’s breach of this Agreement has prevented or materially delayed the consummation of the Transactions (which term for the purposes of this Clause 5.4(ii) shall not include the Financing);
(iii) By the Purchaser, upon written notice to the Seller, if the conditions set out in Clauses 3.2 and 3.3 have not been satisfied (or satisfied subject only to Completion where applicable) or waived (where applicable) on or before the Long Stop Date; provided that the Purchaser shall not be entitled has failed to terminate this Agreement pursuant to this Clause 5.4(iiipay the Consideration in accordance with paragraph 1.1 of Part 1 of Schedule 7 (Completion)) if Purchaser’s breach of this Agreement has prevented or materially delayed still persisting after the consummation of the Transactions.
(iv) By the Seller (if the Seller is not in material breach of the Seller Warranties, covenants or agreements under this Agreement so as to cause any of the conditions set forth in Clause 3.2 and/or 3.3(i) not to be satisfied), upon written notice to the Purchaser, if there has been a material inaccuracy of any statement or warranty, or any unremedied material breach of a covenant or other agreement, of the Purchaser contained in this Agreement, which violation, breach or inaccuracy would cause any of the conditions set forth in Clause 3.1 and/or 3.3 not to be satisfied as lapse of the Completion Date, and such violation, breach or inaccuracy has not been waived by the Seller or cured by the Purchaser within 20 (twentyDate as deferred pursuant to Clause 6.4(b) Business Days after receipt by the Purchaser of written notice thereof from the Seller or is not reasonably capable of being cured prior to the Long Stop Date.
(v) By the Purchaser (if the Purchaser is not in material breach of the Purchaser Warranties, covenants or agreements under this Agreement so as to cause any of the conditions set forth in Clause 3.1 and/or 3.3 elect not to be satisfied), upon written notice to proceed with the Seller, if there has been a material inaccuracy of any statement or warranty, or any unremedied material breach of a covenant or other agreement, of the Seller contained in this Agreement, which violation, breach or inaccuracy would cause any of the conditions transactions set forth in Clauses 3.2 and/or 3.3(i) not to be satisfied as of the Completion Date, and such violation, breach or inaccuracy has not been waived by the Purchaser or cured by the Seller within 20 (twenty) Business Days after receipt by the Seller of written notice thereof from the Purchaser or is not reasonably capable of being cured prior to the Long Stop Date.
(vi) By the Seller or the Purchaser, upon written notice to the other, if a court of competent jurisdiction or any other Governmental Authority shall have issued a final, non-appealable order preventing or otherwise prohibiting the consummation of the Transactions.
5.5. If this Agreement is terminated prior to Completion in accordance with Clause 5.4 above,
(i) this Agreement shall become void and of no further force and effect; provided, however, that out herein whereupon the provisions of this Clause 5.5 and Clauses 1 (Definitions and Interpretation), 11 (Announcements and Confidentiality), 12 (Notices), 13 (Governing Law, Disputes and Jurisdiction), 14.1 (Entire Agreement), 14.6 (Variation), 14.7 (No Assignment), 14.8 (Waiver), 14.9 (Severability), 14.10 (Supersession) and 14.11 (Expenses) 4.17 shall survive the termination of this Agreement indefinitely and that nothing herein shall relieve any Party from any liability for fraud or any breach of the provisions of this Agreement prior to such termination; and
(ii) if applicable, the Observer shall no longer be entitled to attend the meetings of the Board (or any committee thereof) and the nominees of the Purchaser appointed on the Board in accordance with Clause 6.2 shall resign with immediate effectapply.
Appears in 2 contracts
Sources: Share Purchase Agreement, Share Purchase Agreement (Armstrong World Industries Inc)
Completion. 5.1. Subject to 5.1 Completion of the conditions set out in Clauses 3.1, 3.2 sale and 3.3, Completion purchase hereby agreed shall take place on immediately following the Completion Dateexecution and exchange of this Agreement at the offices of the Purchaser’s Solicitors (or at such other place as the Vendor and the Purchaser shall agree).
5.2. The obligations of each of 5.2 At Completion, the Parties under Vendor (and NPS Ltd with respect to Clause 5.3 below are interdependent of each other. The Completion shall not occur unless all of 5.2 (v), (vi) and (vii)), shall:
(a) deliver or cause to be delivered to the obligations specified in Clause 5.3, have been simultaneously complied with and are fully effective.
5.3. On the Completion DatePurchaser:
(i) Subject to deductions pursuant to Clause 4.4, a copy of this Agreement duly executed by the Purchaser shall remit the Purchase Consideration (in immediately available funds) to the Seller’s Bank AccountVendor.
(ii) The Seller all physical items among the Assets hereby agreed to be sold title to which is capable of passing by physical delivery;
(iii) the written consent of any debenture holder or mortgagee or other person whose consent is necessary to the sale of any of the Contracts and/or Assets together with the appropriate release;
(iv) written confirmation all third-party consents required to give the Purchaser the full benefits of the Assets;
(v) a copy of the minutes of a meeting of the directors of the Vendor and NPS Ltd authorising the sale of the Contracts and Assets for the Consideration and authorising the execution by the Vendor and NPS Ltd of this Agreement;
(vi) provide or make available any and all records relating to National Insurance and PAYE payments for the Transferring Employees and to section 49 of the VATA 1994; and
(vii) provide or make available or relevant personal data relating to the Employees;
(viii) evidence, in an agreed form, of the full-service history of each Turbine;
(ix) copies of each Contract and any other relevant and/or ancillary documentation in respect of the Contracts and Assets;
(x) source code for the software that is licensed pursuant to the License Agreement;
(xi) a copy of the License Agreement duly executed by the Vendor;
(xii) A copy of the Escrow Agreement duly executed by the Vendor and NSE; and
(xiii) Evidence of the waiver of security and consent from Comerica Bank in relation to this Agreement.
(b) Support Purchaser from Completion to March 31, 2019 in Purchaser’s efforts (on equipment including hardware and third party software purchased at the Purchaser’s cost but at the Vendor’s direction) to implement and install a fully assembled and operational IT System;
5.3 Subject to the due performance and compliance in full by the Vendor of its obligations under Clause 5.2 the Purchaser shall at Completion:
(a) provide Make the payment referred to its Depository Participant duly executed DP Instructions in Clause 4.2
(b) deliver or cause to be delivered to the prescribed form for the transfer Vendor:
(i) a copy of the Sale Shares to minutes of the Demat Account meeting of the directors of the Purchaser authorising the purchase of the Contracts and Assets for the Consideration and authorising the execution by the Purchaser of this Agreement; and
(details of which shall be provided to the Seller in writing as soon as practicable after the Execution Date); (bii) procure its Depository Participant to duly acknowledge such DP Instructions; (c) deliver a copy of such acknowledgement to the Purchaser; and (d) use best endeavours to procure credit of the Sale Shares to the Demat Account of this Agreement duly executed by the Purchaser.
(iii) The Seller shall, to a copy of the extent it is able to do so through exercise of its voting rights, procure that a Board meeting is held at which the following business shall be transacted:
(a) the appointment of directors nominated License Agreement duly executed by the Purchaser on the Board shall be approved; and
(b) an extra-ordinary general meeting of the shareholders of the Company to approve the matters set out in Clause 5.3(iii)(a) and the amendment of the Articles of Association shall be convenedPurchaser.
5.4. This Agreement may be terminated on or prior to the Completion Date as follows:
(i) By the mutual written consent of the Purchaser and the Seller.
(ii) By the Seller, upon written notice to the Purchaser, if the conditions set out in Clauses 3.1 and 3.3 have not been satisfied (or satisfied subject only to Completion where applicable) or waived (where applicable) on or before 270 (two hundred seventy) days from the Execution Date or such later date as may be mutually agreed between the Parties in writing (“Long Stop Date”); provided that the Seller shall not be entitled to terminate this Agreement pursuant to this Clause 5.4(ii) if Seller’s breach of this Agreement has prevented or materially delayed the consummation of the Transactions (which term for the purposes of this Clause 5.4(ii) shall not include the Financing);
(iii) By the Purchaser, upon written notice to the Seller, if the conditions set out in Clauses 3.2 and 3.3 have not been satisfied (or satisfied subject only to Completion where applicable) or waived (where applicable) on or before the Long Stop Date; provided that the Purchaser shall not be entitled to terminate this Agreement pursuant to this Clause 5.4(iii) if Purchaser’s breach of this Agreement has prevented or materially delayed the consummation of the Transactions.
(iv) By the Seller (if the Seller is not in material breach of the Seller Warranties, covenants or agreements under this Agreement so as to cause any of the conditions set forth in Clause 3.2 and/or 3.3(i) not to be satisfied), upon written notice to the Purchaser, if there has been a material inaccuracy of any statement or warranty, or any unremedied material breach of a covenant or other agreement, of the Purchaser contained in this Agreement, which violation, breach or inaccuracy would cause any of the conditions set forth in Clause 3.1 and/or 3.3 not to be satisfied as of the Completion Date, and such violation, breach or inaccuracy has not been waived by the Seller or cured by the Purchaser within 20 (twenty) Business Days after receipt by the Purchaser of written notice thereof from the Seller or is not reasonably capable of being cured prior to the Long Stop Date.
(v) By the Purchaser (if the Purchaser is not in material breach of the Purchaser Warranties, covenants or agreements under this Agreement so as to cause any of the conditions set forth in Clause 3.1 and/or 3.3 not to be satisfied), upon written notice to the Seller, if there has been a material inaccuracy of any statement or warranty, or any unremedied material breach of a covenant or other agreement, of the Seller contained in this Agreement, which violation, breach or inaccuracy would cause any of the conditions set forth in Clauses 3.2 and/or 3.3(i) not to be satisfied as of the Completion Date, and such violation, breach or inaccuracy has not been waived by the Purchaser or cured by the Seller within 20 (twenty) Business Days after receipt by the Seller of written notice thereof from the Purchaser or is not reasonably capable of being cured prior to the Long Stop Date.
(vi) By the Seller or the Purchaser, upon written notice to the other, if a court of competent jurisdiction or any other Governmental Authority shall have issued a final, non-appealable order preventing or otherwise prohibiting the consummation of the Transactions.
5.5. If this Agreement is terminated prior to Completion in accordance with Clause 5.4 above,
(i) this Agreement shall become void and of no further force and effect; provided, however, that the provisions of this Clause 5.5 and Clauses 1 (Definitions and Interpretation), 11 (Announcements and Confidentiality), 12 (Notices), 13 (Governing Law, Disputes and Jurisdiction), 14.1 (Entire Agreement), 14.6 (Variation), 14.7 (No Assignment), 14.8 (Waiver), 14.9 (Severability), 14.10 (Supersession) and 14.11 (Expenses) shall survive the termination of this Agreement indefinitely and that nothing herein shall relieve any Party from any liability for fraud or any breach of the provisions of this Agreement prior to such termination; and
(ii) if applicable, the Observer shall no longer be entitled to attend the meetings of the Board (or any committee thereof) and the nominees of the Purchaser appointed on the Board in accordance with Clause 6.2 shall resign with immediate effect.
Appears in 2 contracts
Sources: Agreement for the Sale and Purchase of Contracts and Assets, Agreement for the Sale and Purchase of Contracts and Assets (Northern Power Systems Corp.)
Completion. 5.1. 5.1 Subject to fulfilment or waiver of all the conditions set out in Clauses 3.1, 3.2 and 3.3Conditions, Completion shall take place on the Completion DateDate at such place as the Parties may agree when all (and not part only) the acts and requirements set out in Clauses 5.2 and 5.3 shall be complied with.
5.2. The obligations of each of 5.2 At Completion, the Parties under Clause 5.3 below are interdependent of each other. The Completion shall not occur unless all of the obligations specified in Clause 5.3, have been simultaneously complied with and are fully effective.
5.3. On the Completion DateSeller shall:
(ia) Subject deliver to deductions pursuant to Clause 4.4, the Purchaser shall remit duly completed and signed stock power forms, authorising and instructing the Purchase Consideration (in immediately available funds) Share Registrar to the Seller’s Bank Account.
(ii) The Seller shall (a) provide to its Depository Participant duly executed DP Instructions in the prescribed form for the transfer record ownership of the Sale Shares to the Demat Account account of the Purchaser (details of which shall be provided to in the Seller in writing as soon as practicable after the Execution Date); (b) procure its Depository Participant to duly acknowledge such DP Instructions; (c) deliver a copy of such acknowledgement to the Purchaser; and (d) use best endeavours to procure credit share register of the Sale Shares to the Demat Account of the Purchaser.
(iii) The Seller shall, to the extent it is able to do so through exercise of its voting rights, procure that a Board meeting is held at which the following business shall be transacted:
(a) the appointment of directors nominated by the Purchaser on the Board shall be approvedCompany; and
(b) an extra-ordinary general meeting of the shareholders of procure the Company to approve the matters set out in Clause 5.3(iii)(a) and the amendment of the Articles of Association shall be convened.
5.4. This Agreement may be terminated on or prior deliver to the Completion Date as follows:
(iPurchaser a share certificate(s) By in the mutual written consent name of the Purchaser and in respect of the Seller.Sale Shares. Such share certificate shall bear a legend in substantially the form set forth below (in addition to any other legends required under other applicable Laws):
(ii) By 5.3 At Completion, the Seller, upon written notice Purchaser shall pay to the Purchaser, if the conditions set out in Clauses 3.1 and 3.3 have not been satisfied (or satisfied subject only to Completion where applicable) or waived (where applicable) on or before 270 (two hundred seventy) days from the Execution Date or such later date as may be mutually agreed between the Parties in writing (“Long Stop Date”); provided that the Seller shall not be entitled to terminate this Agreement pursuant to this Clause 5.4(ii) if Seller’s breach of this Agreement has prevented or materially delayed the consummation of the Transactions (which term for the purposes of this Clause 5.4(ii) shall not include the Financing);
(iii) By the Purchaser, upon written notice an amount equal to the Seller, if Consideration in the conditions manner set out in Clauses 3.2 and 3.3 have 3.3.
5.4 None of the Parties shall be obliged to complete the sale and purchase of the Sale Shares unless the other Party complies fully with the requirements of Clauses 5.2 and 5.3 which are expressed to be the other Party’s obligations.
5.5 If Completion does not been satisfied take place on the Completion Date (the “Intended Completion Date”) due to the Purchaser or satisfied subject only Seller failing to comply with any of its obligations under this Clause 5 (whether such failure by such Party amounts to a repudiatory breach or not), then the Seller may (in the case of a default by the Purchaser) or the Purchaser may (in the case of a default by the Seller) (the “Non-Defaulting Party”) in their respective absolute discretion, by written notice to the Purchaser or the Seller (as the case may be) (the “Defaulting Party”), and without prejudice to any other rights:
(a) proceed to Completion where applicableon that date, to the extent that the Non-Defaulting Party is ready, able and willing to do so, and specify a later date by which the Defaulting Party shall be obliged to complete its relevant outstanding obligations;
(b) or waived (where applicable) on or before elect to defer Completion to a Business Day no later than the Long Stop Date; provided that the Purchaser shall not be entitled to or
(c) terminate this Agreement pursuant to this Clause 5.4(iii) if Purchaser’s breach of this Agreement has prevented or materially delayed the consummation of the TransactionsAgreement.
(iv) By the Seller (if the Seller is not in material breach of the Seller Warranties, covenants or agreements under this Agreement so as to cause any of the conditions set forth in Clause 3.2 and/or 3.3(i) not to be satisfied), upon written notice to the Purchaser, if there has been a material inaccuracy of any statement or warranty, or any unremedied material breach of a covenant or other agreement, of the Purchaser contained in this Agreement, which violation, breach or inaccuracy would cause any of the conditions set forth in Clause 3.1 and/or 3.3 not to be satisfied as of the Completion Date, and such violation, breach or inaccuracy has not been waived by the Seller or cured by the Purchaser within 20 (twenty) Business Days after receipt by the Purchaser of written notice thereof from the Seller or is not reasonably capable of being cured prior to the Long Stop Date.
(v) By the Purchaser (if the Purchaser is not in material breach of the Purchaser Warranties, covenants or agreements under this Agreement so as to cause any of the conditions set forth in Clause 3.1 and/or 3.3 not to be satisfied), upon written notice to the Seller, if there has been a material inaccuracy of any statement or warranty, or any unremedied material breach of a covenant or other agreement, of the Seller contained in this Agreement, which violation, breach or inaccuracy would cause any of the conditions set forth in Clauses 3.2 and/or 3.3(i) not to be satisfied as of the Completion Date, and such violation, breach or inaccuracy has not been waived by the Purchaser or cured by the Seller within 20 (twenty) Business Days after receipt by the Seller of written notice thereof from the Purchaser or is not reasonably capable of being cured prior to the Long Stop Date.
(vi) By the Seller or the Purchaser, upon written notice to the other, if a court of competent jurisdiction or any other Governmental Authority shall have issued a final, non-appealable order preventing or otherwise prohibiting the consummation of the Transactions.
5.5. If this Agreement is terminated prior to Completion in accordance with Clause 5.4 above,
(i) this Agreement shall become void and of no further force and effect; provided, however, that the provisions of this Clause 5.5 and Clauses 1 (Definitions and Interpretation), 11 (Announcements and Confidentiality), 12 (Notices), 13 (Governing Law, Disputes and Jurisdiction), 14.1 (Entire Agreement), 14.6 (Variation), 14.7 (No Assignment), 14.8 (Waiver), 14.9 (Severability), 14.10 (Supersession) and 14.11 (Expenses) shall survive the termination of this Agreement indefinitely and that nothing herein shall relieve any Party from any liability for fraud or any breach of the provisions of this Agreement prior to such termination; and
(ii) if applicable, the Observer shall no longer be entitled to attend the meetings of the Board (or any committee thereof) and the nominees of the Purchaser appointed on the Board in accordance with Clause 6.2 shall resign with immediate effect.
Appears in 2 contracts
Sources: Sale and Purchase Agreement (GHGK Innovation LTD), Sale and Purchase Agreement (GHGK Innovation LTD)
Completion. 5.1. Subject At Completion, the Vendor shall:
(a) deliver or cause to be delivered to the conditions set out in Clauses 3.1, 3.2 and 3.3, Completion shall take place on the Completion Date.
5.2. The obligations of each of the Parties under Clause 5.3 below are interdependent of each other. The Completion shall not occur unless all of the obligations specified in Clause 5.3, have been simultaneously complied with and are fully effective.
5.3. On the Completion DatePurchaser:
(i) Subject evidence reasonably satisfactory to deductions pursuant to Clause 4.4, the Purchaser shall remit that the Purchase Consideration Conditions Precedent in Clause 4.1 (in immediately available funds) which are applicable to the Seller’s Bank Account.Vendor) of this Agreement have been fulfilled;
(ii) The Seller instrument of transfer and the bought and sold notes of the Sale Shares duly executed by the Vendor as registered holder thereof in favour of the Purchaser together with the related share certificate(s);
(iii) Employment Agreements duly executed by each of the Key Management and the Company;
(1) all statutory records and minute books (which shall be duly written up as at the Completion Date) and accounting records including an original copy of the memorandum and articles of association or other equivalent constitutional documents, certificate of incorporation and business registration certificates, business licence, governmental approval letters and certificates (aif any), common seal, authorised chops, share certificate books and other statutory records of the Company;
(2) provide all tax returns and assessments of the Company (if applicable) (receipted where the due dates for payment fell on or before the Completion Date);
(3) copies of all correspondence, if any, with its lawyers, accountants, tax or revenue departments, all other documents and correspondence, if any, relating to the business affairs of the Company; and
(4) all title deeds, evidence of ownership and documents relating to assets owned by the Company (if any); provided that the above shall be deemed to have been delivered if they are located at the registered office or principal place of business of the Company;
(v) a cheque made payable to “the Government of the HKSAR” for such amount representing the share of Hong Kong stamp duty which shall be borne by the Vendor as transferor of the Sale Shares in accordance with the Stamp Duty Ordinance;
(vi) evidence reasonably satisfactory to the Purchaser showing that all loans or amounts due by the Company to its Depository Participant duly executed DP Instructions shareholders, directors or any other third party creditors have been fully waived or settled, save as the liabilities incurred in the prescribed form for ordinary course of business after the date of this Agreement and before the Completion;
(vii) such other documents as may be reasonably required to give good title to the Sale Shares free from all Encumbrances and third party rights of any kind and to enable the Purchaser to become the registered holder thereof;
(viii) a certified true copy of the resolutions of the board of directors of the Vendor approving the transfer of the Sale Shares to the Demat Account Purchaser and the execution and performance of the Purchaser (details of which shall be provided to the Seller in writing as soon as practicable after the Execution Date); (b) procure its Depository Participant to duly acknowledge such DP Instructions; (c) deliver a copy of such acknowledgement to the Purchaser; and (d) use best endeavours to procure credit of the Sale Shares to the Demat Account of the Purchaser.
(iii) The Seller shall, to the extent it is able to do so through exercise of its voting rights, procure that a Board meeting is held at which the following business shall be transacted:
(a) the appointment of directors nominated this Agreement by the Purchaser on the Board shall be approvedVendor; and
(bix) an extra-ordinary general meeting a certified true copy of the shareholders resolutions of the board of directors of the Company to approve approving the matters set out in Clause 5.3(iii)(a5.1(b);
(b) and procure that the amendment following businesses be approved at a meeting of the Articles directors of Association shall be convened.
5.4. This Agreement may be terminated on or prior to the Completion Date as followsCompany:
(i) By the mutual written consent directors of the Purchaser Company shall approve the transfer of the Sale Shares and the Seller.Purchaser and/or its nominee shall be duly registered as the holder of the Sale Shares in the register of members of the Company, subject to the articles of association of the Company;
(ii) By the Seller, upon written notice directors of the Company shall resolve that the share certificate in respect of the Sale Shares be duly issued and delivered to the PurchaserPurchaser and/or its nominee, if subject to the conditions set out in Clauses 3.1 and 3.3 have not been satisfied (or satisfied subject only to Completion where applicable) or waived (where applicable) on or before 270 (two hundred seventy) days from the Execution Date or such later date as may be mutually agreed between the Parties in writing (“Long Stop Date”); provided that the Seller shall not be entitled to terminate this Agreement pursuant to this Clause 5.4(ii) if Seller’s breach articles of this Agreement has prevented or materially delayed the consummation association of the Transactions (which term for the purposes of this Clause 5.4(ii) shall not include the Financing)Company;
(iii) By the Purchaser, upon written notice directors of the Company shall approve any of its directors to do all such acts and things and to sign any documents reasonably required to give effect to the Sellertransaction as contemplated under this Agreement.
5.2. At Completion, if against compliance with the conditions set out in Clauses 3.2 and 3.3 have not been satisfied (or satisfied subject only to Completion where applicable) or waived (where applicable) on or before the Long Stop Date; provided that provisions of Clause 5.1, the Purchaser shall not deliver or cause to be entitled delivered the following documents to terminate the Vendor:
(i) a certified copy of the resolutions passed by the board of directors of the Purchaser approving the execution and performance of this Agreement pursuant Agreement;
(ii) evidence reasonably satisfactory to this the Vendor that the Conditions Precedent in Clause 5.4(iii4.1 (which are applicable to the Purchaser) if Purchaser’s breach of this Agreement has prevented or materially delayed have been fulfilled;
(iii) instrument of transfer and the consummation bought and sold notes of the Transactions.Sale Shares duly executed by the Purchaser;
(iv) By the Seller (if the Seller is not in material breach a copy of the Seller Warrantiesboard resolutions and, covenants or agreements under this Agreement so as to cause any if required, the resolutions of an extraordinary general meeting of TMRR approving the allotment and issue of the conditions set forth in Clause 3.2 and/or 3.3(i) not to be satisfied), upon written notice to the Purchaser, if there has been a material inaccuracy of any statement or warranty, or any unremedied material breach of a covenant or other agreement, of the Purchaser contained in this Agreement, which violation, breach or inaccuracy would cause any of the conditions set forth in Clause 3.1 and/or 3.3 not to be satisfied as of the Completion Date, and such violation, breach or inaccuracy has not been waived by the Seller or cured by the Purchaser within 20 (twenty) Business Days after receipt by the Purchaser of written notice thereof from the Seller or is not reasonably capable of being cured prior to the Long Stop Date.Consideration Shares;
(v) By a cheque made payable to “the Purchaser (if the Purchaser is not in material breach Government of the Purchaser Warranties, covenants or agreements under this Agreement so as to cause any of HKSAR” for such amount representing the conditions set forth in Clause 3.1 and/or 3.3 not to Hong Kong stamp duty which shall be satisfied), upon written notice to the Seller, if there has been a material inaccuracy of any statement or warranty, or any unremedied material breach of a covenant or other agreement, of the Seller contained in this Agreement, which violation, breach or inaccuracy would cause any of the conditions set forth in Clauses 3.2 and/or 3.3(i) not to be satisfied as of the Completion Date, and such violation, breach or inaccuracy has not been waived borne by the Purchaser or cured by as transferee of the Seller within 20 (twenty) Business Days after receipt by Sale Shares in accordance with the Seller of written notice thereof from the Purchaser or is not reasonably capable of being cured prior to the Long Stop Date.Stamp Duty Ordinance; and
(vi) By the Seller or the Purchaser, upon written notice documents as may be reasonably required to give good title to the other, if a court Consideration Shares free from all Encumbrances and third party rights of competent jurisdiction or any other Governmental Authority shall have issued a final, non-appealable order preventing or otherwise prohibiting kind and to enable the consummation of Vendor to become the Transactionsregistered holders thereof.
5.5. If this Agreement is terminated prior to Completion in accordance with Clause 5.4 above,
(i) this Agreement shall become void and of no further force and effect; provided, however, that the provisions of this Clause 5.5 and Clauses 1 (Definitions and Interpretation), 11 (Announcements and Confidentiality), 12 (Notices), 13 (Governing Law, Disputes and Jurisdiction), 14.1 (Entire Agreement), 14.6 (Variation), 14.7 (No Assignment), 14.8 (Waiver), 14.9 (Severability), 14.10 (Supersession) and 14.11 (Expenses) shall survive the termination of this Agreement indefinitely and that nothing herein shall relieve any Party from any liability for fraud or any breach of the provisions of this Agreement prior to such termination; and
(ii) if applicable, the Observer shall no longer be entitled to attend the meetings of the Board (or any committee thereof) and the nominees of the Purchaser appointed on the Board in accordance with Clause 6.2 shall resign with immediate effect.
Appears in 2 contracts
Sources: Sale and Purchase Agreement (Temir Corp.), Sale and Purchase Agreement (Temir Corp.)
Completion. 5.1. Subject 8.1 Completion shall take place after this deed ceases to be subject to any of the conditions set out in Clauses 3.1, 3.2 Conditions and 3.3, Completion it shall take place on the Completion Date.
5.2. The obligations 8.2 At Completion, the Primary Buyer shall:
8.2.1 allot and issue to the Primary Seller the Consideration Shares credited as fully paid and enter the Primary Seller in the register of each members of the Parties under Clause 5.3 below are interdependent of each other. The Completion shall not occur unless all Buyer as the holder of the obligations specified in Clause 5.3, have been simultaneously complied with and are fully effective.Consideration Shares; and
5.3. On 8.2.2 pay the Completion Date:
(i) Subject to deductions pursuant to Clause 4.4, the Purchaser shall remit the Purchase Initial Cash Consideration (less the Retention Amount) by telegraphic transfer, in immediately same day available funds) to the Seller’s Bank Account.
(ii) The Seller shall (a) provide to its Depository Participant duly executed DP Instructions in the prescribed form for the transfer of the Sale Shares to the Demat Account of the Purchaser (details of which shall be provided to the Seller in writing as soon as practicable after the Execution Date); (b) procure its Depository Participant to duly acknowledge such DP Instructions; (c) deliver a copy of such acknowledgement to the Purchaser; and (d) use best endeavours to procure credit of the Sale Shares to the Demat Account of the Purchaser.
(iii) The Seller shall, to the extent it is able Sellers’ Account. Receipt of sum payment made in accordance with this clause shall constitute a valid discharge of the Buyer’s obligations to do so through exercise of its voting rights, procure that a Board meeting is held at which pay the following business shall be transacted:
(a) the appointment of directors nominated by the Purchaser on the Board shall be approvedInitial Cash Consideration under clause 4.1.2; and
(b) an extra-ordinary general meeting 8.2.3 pay the Retention Amount, in cash, by telegraphic transfer into the Retention Account;
8.2.4 procure the delivery of a duly executed share certificate to the Primary Seller in respect of the shareholders Consideration Shares;
8.2.5 deliver to the Primary Seller a certified copy of the Company to approve resolution adopted by the matters set out in Clause 5.3(iii)(a) board of directors of the Primary Buyer authorising the Transaction and the amendment execution and delivery by the officers specified in the resolution of this deed, and any other documents referred to in this deed as being required to be delivered by it and evidence of the Articles authority of Association shall be convened.the persons signing the Transaction Documents and the transactions contemplated therein on behalf of the Other Buyers;
5.4. This Agreement may be terminated on or prior 8.2.6 deliver to the Completion Date as followsPrimary Seller a legal opinion in respect of the Buyer’s capacity and authority to enter into the relevant Transaction Documents;
8.2.7 deliver, or procure delivery, to the Sellers of or make available to the Primary Seller:
8.2.7.1 the Developer Management Agreements duly executed by VRI Management Espana S.L. or VRI Canarias S.L. (i) By the mutual written consent of the Purchaser and the Seller.
(ii) By the Seller, upon written notice to the Purchaser, if the conditions set out in Clauses 3.1 and 3.3 have not been satisfied (or satisfied subject only to Completion where as applicable) or waived (where applicable) on or before 270 (two hundred seventy) days from the Execution Date or such later date as may be mutually agreed between the Parties in writing (“Long Stop Date”); provided that the Seller shall not be entitled to terminate this Agreement pursuant to this Clause 5.4(ii) if Seller’s breach of this Agreement has prevented or materially delayed the consummation of the Transactions (which term for the purposes of this Clause 5.4(ii) shall not include the Financing);
(iii) By 8.2.7.2 the Purchaser, upon written notice to the Seller, if the conditions set out in Clauses 3.2 Co-operation Agreement and 3.3 have not been satisfied (or satisfied subject only to Completion where applicable) or waived (where applicable) on or before the Long Stop Date; provided that the Purchaser shall not be entitled to terminate this Agreement pursuant to this Clause 5.4(iii) if Purchaser’s breach of this Agreement has prevented or materially delayed the consummation of the Transactions.
(iv) By the Seller (if the Seller is not in material breach of the Seller Warranties, covenants or agreements under this Agreement so as to cause any of the conditions set forth in Clause 3.2 and/or 3.3(i) not all ancillary documents to be satisfied), upon written notice to entered into thereunder duly executed by the Purchaser, if there has been a material inaccuracy of any statement or warranty, or any unremedied material breach of a covenant or other agreement, of Primary Buyer;
8.2.7.3 the Purchaser contained in this Agreement, which violation, breach or inaccuracy would cause any of VRI Europe Shareholders’ Deed duly executed by the conditions set forth in Clause 3.1 and/or 3.3 not Buyer and Interval Leisure Group Management Limited;
8.2.7.4 the Pre-emption Deed duly executed by ILG Lux Finance S.à ▇.▇.;
8.2.7.5 the Escrow Letter duly executed by the Primary Buyer;
8.2.7.6 the FMRH Shareholders’ Deed and all ancillary documents to be satisfied as of the Completion Date, and such violation, breach or inaccuracy has not been waived entered into thereunder duly executed by the Seller or cured by the Purchaser within 20 (twenty) Business Days after receipt by the Purchaser of written notice thereof from the Seller or is not reasonably capable of being cured prior to the Long Stop DateILG Lux Finance S.à ▇.
(v) By the Purchaser (if the Purchaser is not in material breach of the Purchaser Warranties, covenants or agreements under this Agreement so as to cause any of the conditions set forth in Clause 3.1 and/or 3.3 not to be satisfied), upon written notice to the Seller, if there has been a material inaccuracy of any statement or warranty, or any unremedied material breach of a covenant or other agreement, of the Seller contained in this Agreement, which violation, breach or inaccuracy would cause any of the conditions set forth in Clauses 3.2 and/or 3.3(i) not to be satisfied as of the Completion Date, and such violation, breach or inaccuracy has not been waived by the Purchaser or cured by the Seller within 20 (twenty) Business Days after receipt by the Seller of written notice thereof from the Purchaser or is not reasonably capable of being cured prior to the Long Stop Date▇.
(vi) By the Seller or the Purchaser, upon written notice to the other, if a court of competent jurisdiction or any other Governmental Authority shall have issued a final, non-appealable order preventing or otherwise prohibiting the consummation of the Transactions.
5.5. If this Agreement is terminated prior to Completion in accordance with Clause 5.4 above,
(i) this Agreement shall become void and of no further force and effect; provided, however, that the provisions of this Clause 5.5 and Clauses 1 (Definitions and Interpretation), 11 (Announcements and Confidentiality), 12 (Notices), 13 (Governing Law, Disputes and Jurisdiction), 14.1 (Entire Agreement), 14.6 (Variation), 14.7 (No Assignment), 14.8 (Waiver), 14.9 (Severability), 14.10 (Supersession) and 14.11 (Expenses) shall survive the termination of this Agreement indefinitely and that nothing herein shall relieve any Party from any liability for fraud or any breach of the provisions of this Agreement prior to such termination; and
(ii) if applicable, the Observer shall no longer be entitled to attend the meetings of the Board (or any committee thereof) and the nominees of the Purchaser appointed on the Board in accordance with Clause 6.2 shall resign with immediate effect.;
Appears in 1 contract
Sources: Business Transfer Deed (Interval Leisure Group, Inc.)
Completion. 5.1. Subject to the conditions set out in Clauses 3.1, 3.2 and 3.3, Completion shall take place on the Completion Date.
5.2. The obligations of each of the Parties under Clause 5.3 below are interdependent of each other. The Completion shall immediately following execution when all (but not occur part only unless all of the obligations specified in Clause 5.3, have been simultaneously complied with and are fully effective.
5.3. On the Completion Date:
(i) Subject to deductions pursuant to Clause 4.4, the Purchaser shall remit and the Purchase Consideration (in immediately available funds) to the Seller’s Bank Account.
(ii) The Seller shall (aso agree) provide to its Depository Participant duly executed DP Instructions in the prescribed form for the transfer of the Sale Shares to the Demat Account of the Purchaser (details of which shall be provided to the Seller in writing as soon as practicable after the Execution Date); (b) procure its Depository Participant to duly acknowledge such DP Instructions; (c) deliver a copy of such acknowledgement to the Purchaser; and (d) use best endeavours to procure credit of the Sale Shares to the Demat Account of the Purchaser.
(iii) The Seller shall, to the extent it is able to do so through exercise of its voting rights, procure that a Board meeting is held at which the following business shall be transacted:
5.1 completion of the PTT and Talidan Agreements;
5.2 the Seller shall deliver (in the manner agreed between the parties) to the Purchaser (to the extent not delivered prior thereto):
(a) transfers in relation to the Sale Shares duly executed and completed in favour of the Purchaser together with the certificates therefor and the duly executed powers of attorney or other authorities under which any of the transfers have been executed and certified copies of the Minutes recording the Resolution of the Board of Directors of the Seller authorizing the sale of the Sale Shares held by the Seller and the execution of transfers in respect of them;
(b) legal opinions in respect of the Companies in the agreed form;
(c) service agreements in the agreed form;
(d) copies of the completion documentation relating to Tiller's acquisition of PTT and Talidan, including evidence of the appointment of directors the Carnegie nominated by the Purchaser on the Board shall be approveddirector for each of those companies; and
(e) a duly executed copy of the Service Agreement.
5.3 The Purchaser shall:
(a) issue the Consideration Securities to the Seller (and to its permitted assignees) in accordance with clauses 4. 1 (a) and 4. 1 (b) an extra-ordinary general meeting and certificates in respect of those Consideration Securities duly executed in favour of the shareholders Seller (or as it shall direct) and certified copy of the Company to approve minutes of the matters set out in Clause 5.3(iii)(a) board of directors of the Purchaser authorizing the acquisition of the Sale Shares and the amendment issue of the Articles Consideration Securities and approving those further matters noted at clause 5.2(b) below provided in consideration of Association shall be convened.the Sale Shares;
5.4. This Agreement may be terminated on or prior (b) deliver to the Completion Date as followsSeller duly executed original copies of each of the following:
(i) By the mutual written consent of Warrants in the Purchaser and the Seller.agreed. form pursuant to clause 4.1(b)(ii);
(ii) By the Seller, upon written notice Option Agreement in the agreed form pursuant to the Purchaser, if the conditions set out in Clauses 3.1 and 3.3 have not been satisfied clause 4.1 (or satisfied subject only to Completion where applicable) or waived (where applicable) on or before 270 (two hundred seventy) days from the Execution Date or such later date as may be mutually agreed between the Parties in writing (“Long Stop Date”b)(iii); provided that the Seller shall not be entitled to terminate this Agreement pursuant to this Clause 5.4(ii) if Seller’s breach of this Agreement has prevented or materially delayed the consummation of the Transactions (which term for the purposes of this Clause 5.4(ii) shall not include the Financing);and
(iii) By the Purchaser, upon written notice to the Seller, if the conditions set out in Clauses 3.2 and 3.3 have not been satisfied (or satisfied subject only to Completion where applicable) or waived (where applicable) on or before the Long Stop Date; provided that the Purchaser shall not be entitled to terminate this Agreement pursuant to this Clause 5.4(iii) if Purchaser’s breach of this Agreement has prevented or materially delayed the consummation a duly executed copy of the Transactions.Service Agreement;
(ivc) By cause the transfers of Carnegie Shares by the Seller (if the Seller is not in material breach of the Seller Warranties, covenants or agreements under this Agreement so as to cause any of the conditions set forth in Clause 3.2 and/or 3.3(i) not to be satisfied), upon written notice to the Purchaser, if there has been a material inaccuracy of any statement or warranty, or any unremedied material breach of a covenant or other agreement, sellers under each of the Purchaser contained in this Agreement, which violation, breach PTT Agreement or inaccuracy would cause any of the conditions set forth in Clause 3.1 and/or 3.3 not to be satisfied Talidan Agreement (or as of the Completion Date, they shall direct) and such violation, breach or inaccuracy has not as have otherwise been waived by the Seller or cured agreed by the Purchaser within 20 (twenty) Business Days after receipt by the Purchaser of written notice thereof from the Seller or is not reasonably capable of being cured prior to the Long Stop Date.
(v) By the Purchaser (if the Purchaser is not in material breach of the Purchaser Warranties, covenants or agreements under this Agreement so as to cause any of the conditions set forth in Clause 3.1 and/or 3.3 not to be satisfied), upon written notice to the Seller, if there has been a material inaccuracy of any statement or warranty, or any unremedied material breach of a covenant or other agreement, of the Seller contained in this Agreement, which violation, breach or inaccuracy would cause any of the conditions set forth in Clauses 3.2 and/or 3.3(i) not resolved to be satisfied as of the Completion Dateregistered (subject only, and such violationwhere applicable, breach or inaccuracy has not been waived by the Purchaser or cured by the Seller within 20 (twenty) Business Days after receipt by the Seller of written notice thereof from the Purchaser or is not reasonably capable of to their being cured prior to the Long Stop Date.
(vi) By the Seller or the Purchaser, upon written notice to the other, if a court of competent jurisdiction or any other Governmental Authority shall have issued a final, non-appealable order preventing or otherwise prohibiting the consummation of the Transactions.
5.5. If this Agreement is terminated prior to Completion in accordance with Clause 5.4 above,
(i) this Agreement shall become void and of no further force and effect; provided, however, that the provisions of this Clause 5.5 and Clauses 1 (Definitions and Interpretationduly stamped), 11 (Announcements and Confidentiality), 12 (Notices), 13 (Governing Law, Disputes and Jurisdiction), 14.1 (Entire Agreement), 14.6 (Variation), 14.7 (No Assignment), 14.8 (Waiver), 14.9 (Severability), 14.10 (Supersession) and 14.11 (Expenses) shall survive the termination of this Agreement indefinitely and that nothing herein shall relieve any Party from any liability for fraud or any breach of the provisions of this Agreement prior to such termination; and
(iid) if applicablepay to the Seller (and its assignees) an amount equal to one half of any required stamp duty, stamp duty reserve tax or other taxes payable by the Observer shall no longer be entitled to attend the meetings Seller (and its assignees) as a result of its acquisition and disposal of the Board (or any committee thereof) PTT Shares and/or the Talidan Shares and the nominees as a result of the Purchaser appointed on acquisition of the Board in accordance with Clause 6.2 shall resign with immediate effectSale Shares by the Purchaser.
Appears in 1 contract
Sources: Agreement for Sale/Purchase of Shares (Carnegie International Corp)
Completion. 5.1. Subject to the conditions set out in Clauses 3.1, 3.2 and 3.3, 4.1 The First Completion shall take place at offices of the Company's Solicitors at 10:00 a.m. on the First Completion DateDate or at such other place and time as shall be mutually agreed. The Company and the Subscriber hereby authorise their respective solicitors to complete the subscription of the First Subscription Shares on the basis of cross undertakings insofar as it may be necessary to do so.
5.2. The obligations of each 4.2 At the First Completion, the Company shall allot and issue to the Subscriber, as fully paid, the First Subscription Shares free from all charges, liens, encumbrances, equities or other third party rights, claims or interests, and shall procure the Subscriber be registered as holder of the Parties under Clause 5.3 below are interdependent First Subscription Shares in the register of each other. The Completion shall not occur unless all members of the obligations specified in Clause 5.3, have been simultaneously complied with and are fully effectiveCompany.
5.3. On 4.3 At the Completion Date:
(i) Subject to deductions pursuant to Clause 4.4First Completion, the Purchaser Company shall remit the Purchase Consideration (in immediately available funds) deliver to the Seller’s Bank AccountSubscriber a certified true copy of the board resolutions of the Company approving the subscription of the First Subscription Shares in accordance with the terms of this Agreement.
(ii) The Seller 4.4 At the First Completion, the Ordinary Shareholder shall (a) provide to its Depository Participant duly executed DP Instructions in the prescribed form for the transfer of the Sale Shares deliver to the Demat Account of the Purchaser (details of which shall be provided to the Seller in writing as soon as practicable after the Execution Date); (b) procure its Depository Participant to duly acknowledge such DP Instructions; (c) deliver a copy of such acknowledgement to the Purchaser; and (d) use best endeavours to procure credit of the Sale Shares to the Demat Account of the Purchaser.
(iii) The Seller shall, to the extent it is able to do so through exercise of its voting rights, procure that a Board meeting is held at which the following business shall be transactedSubscriber:
(a) the appointment Deed of directors nominated Call Option duly executed by the Purchaser on the Board shall be approvedOrdinary Shareholder; and
(b) an extra-ordinary general meeting the Deed of Put Option duly executed by the shareholders Ordinary Shareholder.
4.5 At the First Completion, the Subscriber shall deliver or cause to be delivered to the Company:
(a) a bankers' draft drawn on a reputable bank in the United States for US$300,000.00 in favour of the Company to approve or as the matters set out Company in Clause 5.3(iii)(a) and writing may direct (the amendment receipt of the Articles of Association which shall be convened.
5.4. This Agreement may be terminated on or prior to the Completion Date as follows:
(i) By the mutual written consent of the Purchaser and the Seller.
(ii) By the Seller, upon written notice to the Purchaser, if the conditions set out in Clauses 3.1 and 3.3 have not been satisfied (or satisfied subject only to Completion where applicable) or waived (where applicable) on or before 270 (two hundred seventy) days from the Execution Date or such later date as may be mutually agreed between the Parties in writing (“Long Stop Date”); provided that the Seller shall not be entitled to terminate this Agreement pursuant to this Clause 5.4(ii) if Seller’s breach of this Agreement has prevented or materially delayed the consummation of the Transactions (which term for the purposes of this Clause 5.4(ii) shall not include the Financingan absolute discharge therefor);
(iiib) By a letter applying for the Purchaser, upon written notice to First Subscription Shares at the Seller, if the conditions set out in Clauses 3.2 and 3.3 have not been satisfied (or satisfied subject only to Completion where applicable) or waived (where applicable) on or before the Long Stop Date; provided that the Purchaser shall not be entitled to terminate this Agreement pursuant to this Clause 5.4(iii) if Purchaser’s breach of this Agreement has prevented or materially delayed the consummation of the Transactions.
(iv) By the Seller (if the Seller is not in material breach of the Seller Warranties, covenants or agreements under this Agreement so as to cause any of the conditions set forth in Clause 3.2 and/or 3.3(i) not to be satisfied), upon written notice to the Purchaser, if there has been a material inaccuracy of any statement or warranty, or any unremedied material breach of a covenant or other agreement, of the Purchaser contained in this Agreement, which violation, breach or inaccuracy would cause any of the conditions set forth in Clause 3.1 and/or 3.3 not to be satisfied as of the Completion Date, and such violation, breach or inaccuracy has not been waived First Subscription Price signed by the Seller or cured by the Purchaser within 20 (twenty) Business Days after receipt by the Purchaser of written notice thereof from the Seller or is not reasonably capable of being cured prior to the Long Stop Date.
(v) By the Purchaser (if the Purchaser is not in material breach of the Purchaser Warranties, covenants or agreements under this Agreement so as to cause any of the conditions set forth in Clause 3.1 and/or 3.3 not to be satisfied), upon written notice to the Seller, if there has been a material inaccuracy of any statement or warranty, or any unremedied material breach of a covenant or other agreement, of the Seller contained in this Agreement, which violation, breach or inaccuracy would cause any of the conditions set forth in Clauses 3.2 and/or 3.3(i) not to be satisfied as of the Completion Date, and such violation, breach or inaccuracy has not been waived by the Purchaser or cured by the Seller within 20 (twenty) Business Days after receipt by the Seller of written notice thereof from the Purchaser or is not reasonably capable of being cured prior to the Long Stop Date.
(vi) By the Seller or the Purchaser, upon written notice to the other, if a court of competent jurisdiction or any other Governmental Authority shall have issued a final, non-appealable order preventing or otherwise prohibiting the consummation of the Transactions.
5.5. If this Agreement is terminated prior to Completion in accordance with Clause 5.4 above,
(i) this Agreement shall become void and of no further force and effect; provided, however, that the provisions of this Clause 5.5 and Clauses 1 (Definitions and Interpretation), 11 (Announcements and Confidentiality), 12 (Notices), 13 (Governing Law, Disputes and Jurisdiction), 14.1 (Entire Agreement), 14.6 (Variation), 14.7 (No Assignment), 14.8 (Waiver), 14.9 (Severability), 14.10 (Supersession) and 14.11 (Expenses) shall survive the termination of this Agreement indefinitely and that nothing herein shall relieve any Party from any liability for fraud or any breach of the provisions of this Agreement prior to such terminationSubscriber; and
(iic) if applicable, the Observer shall no longer be entitled to attend the meetings a certified true copy of the Board (or any committee thereof) and the nominees board resolutions of the Purchaser appointed on Subscriber approving the Board subscription of the First Subscription Shares in accordance with the terms of this Agreement.
4.6 At the First Completion, the Subscriber shall deliver or cause to be delivered to the Ordinary Shareholder:
(a) the Deed of Call Option duly executed by the Subscriber; and
(b) the Deed of Put Option duly executed by the Subscriber.
4.7 The Company shall not be obliged to complete the First Completion unless the Subscriber shall have fully complied with all of its requirements in Clauses 4.5 and 4.
4.8 Subject to Clause 6.2 3.2(a), the Second Completion shall resign take place at offices of the Company's Solicitors at 10:00 a.m. on the Second Completion Date or at such other place and time as shall be mutually agreed. The Company and the Subscriber hereby authorise their respective solicitors to complete the subscription of the Second Subscription Shares on the basis of cross undertakings insofar as it may be necessary to do so.
4.9 At the Second Completion, the Company shall allot and issue to the Subscriber, as fully paid, the Second Subscription Shares free from all charges, liens, encumbrances, equities or other third party rights, claims or interests, and shall procure the Subscriber be registered as holder of the Second Subscription Shares in the register of members of the Company.
4.10 At the Second Completion, the Company shall deliver to the Subscriber a certified true copy of the board resolutions of the Company approving the subscription of the Second Subscription Shares in accordance with immediate effectthe terms of this Agreement.
4.11 At the Second Completion, the Subscriber shall deliver or cause to be delivered to the Company:
(a) a bankers' draft drawn on a reputable bank in the United States for US$300,000.00 in favour of the Company or as the Company in writing may direct (the receipt of which shall be an absolute discharge therefor);
(b) a letter applying for the Second Subscription Shares at the Second Subscription Price signed by the Subscriber; and
(c) a certified true copy of the board resolutions of the Subscriber approving the subscription of the Second Subscription Shares in accordance with the terms of this Agreement.
4.12 The Company shall not be obliged to complete the Second Completion unless the Subscriber shall have fully complied with all of its requirements in Clause 4.11.
4.13 Subject to Clause 3.2(b), the Third Completion shall take place at offices of the Company's Solicitors at 10:00 a.m. on the Third Completion Date or at such other place and time as shall be mutually agreed. The Company and the Subscriber hereby authorise their respective solicitors to complete the subscription of the Third Subscription Shares on the basis of cross undertakings insofar as it may be necessary to do so.
4.14 At the Third Completion, the Company shall allot and issue to the Subscriber, as fully paid, the Third Subscription Shares free from all charges, liens, encumbrances, equities or other third party rights, claims or interests, and shall procure the Subscriber be registered as holder of the Third Subscription Shares in the register of members of the Company.
4.15 At the Third Completion, the Company shall deliver to the Subscriber a certified true copy of the board resolutions of the Company approving the subscription of the Third Subscription Shares in accordance with the terms of this Agreement.
4.16 At the Third Completion, the Subscriber shall deliver or cause to be delivered to the Company:
(a) a bankers' draft drawn on a reputable bank in the United States for US$300,000.00 in favour of the Company or as the Company in writing may direct (the receipt of which shall be an absolute discharge therefor);
(b) a letter applying for the Third Subscription Shares at the Third Subscription Price signed by the Subscriber; and
(c) a certified true copy of the board resolutions of the Subscriber approving the subscription of the Third Subscription Shares in accordance with the terms of this Agreement.
4.17 The Company shall not be obliged to complete the Third Completion unless the Subscriber shall have fully complied with all of its requirements in Clause 4.16.
4.18 Subject to Clause 3.2(c), the Fourth Completion shall take place at offices of the Company's Solicitors at 10:00 a.m. on the Fourth Completion Date or at such other place and time as shall be mutually agreed. The Company and the Subscriber hereby authorise their respective solicitors to complete the subscription of the Fourth Subscription Shares on the basis of cross undertakings insofar as it may be necessary to do so.
4.19 At the Fourth Completion, the Company shall allot and issue to the Subscriber, as fully paid, the Fourth Subscription Shares free from all charges, liens, encumbrances, equities or other third party rights, claims or interests, and shall procure the Subscriber be registered as holder of the Fourth Subscription Shares in the register of members of the Company.
4.20 At the Fourth Completion, the Company shall deliver to the Subscriber a certified true copy of the board resolutions of the Company approving the subscription of the Fourth Subscription Shares in accordance with the terms of this Agreement.
4.21 At the Fourth Completion, the Subscriber shall deliver or cause to be delivered to the Company:
(a) a bankers' draft drawn on a reputable bank in the United States for US$300,000.00 in favour of the Company or as the Company in writing may direct (the receipt of which shall be an absolute discharge therefor);
(b) a letter applying for the Fourth Subscription Shares at the Fourth Subscription Price signed by the Subscriber; and
(c) a certified true copy of the board resolutions of the Subscriber approving the subscription of the Fourth Subscription Shares in accordance with the terms of this Agreement.
4.22 The Company shall not be obliged to complete the Fourth Completion unless the Subscriber shall have fully complied with all of its requirements in Clause 4.21.
Appears in 1 contract
Sources: Share Subscription Agreement (Ddi International Inc)
Completion. 5.1. Subject to the conditions set out in Clauses 3.1, 3.2 and 3.3, 4.1 Completion shall take place on the Completion earlier of 2 Business Days after the Buyer gives notice to complete in writing to the Seller and (subject to this clause 4) the Longstop Date.
5.2. The obligations of each of the Parties under Clause 5.3 below are interdependent of each other. The 4.2 At Completion shall not occur unless all of the obligations specified in Clause 5.3, have been simultaneously complied with and are fully effective.
5.3. On the Completion Date:
(i) Subject to deductions pursuant to Clause 4.4, the Purchaser shall remit the Purchase Consideration (in immediately available funds) to the Seller’s Bank Account.
(ii) The Seller shall (a) provide to its Depository Participant duly executed DP Instructions in the prescribed form for the transfer of the Sale Shares to the Demat Account of the Purchaser (details of which shall be provided transferred in dematerialised form by Strate through the relevant CSDPs in accordance with the usual settlement procedures applicable to off-market transactions in dematerialised shares listed on the Seller in writing as soon as practicable after the Execution Date); (b) procure its Depository Participant to duly acknowledge such DP Instructions; (c) deliver a copy of such acknowledgement to the Purchaser; and (d) use best endeavours to procure credit of the Sale Shares to the Demat Account of the Purchaser.
(iii) The Seller shall, to the extent it is able to do so through exercise of its voting rights, procure that a Board meeting is held at which the following business shall be transactedJSE and:
(a) the appointment Seller shall do those things listed in Part A of directors nominated by the Purchaser on the Board shall be approvedSchedule 2; and
(b) an extra-ordinary general meeting the Buyer shall do those things listed in Part B of the shareholders of the Company to approve the matters set out in Clause 5.3(iii)(a) and the amendment of the Articles of Association shall be convenedSchedule 2.
5.4. This Agreement may be terminated 4.3 If the Buyer has not complied with its obligations under clause 4.2 or Schedule 2 by 5pm (Johannesburg time) on or prior to the Completion Longstop Date as followsthen the Seller may:
(ia) By the mutual written consent proceed to Completion in respect of the Purchaser Partial Completion Shares and shall procure that the Deposit is used to satisfy in full the Buyer’s obligation to pay consideration in respect of the Partial Completion Shares by procuring the payment of the ZAR equivalent of such amount (converted in accordance with clause 3.4) to the Buyer’s CSDP (and the Seller.Seller is hereby irrevocably authorised by the Buyer to do so) to allow settlement of such consideration, but without prejudice to the Parties' rights and obligations to Complete in relation to the balance of the Sale Shares; or
(iib) By immediately terminate the Seller, upon Agreement by written notice to the Purchaser, if Buyer and the conditions set out in Clauses 3.1 and 3.3 have not been satisfied (or satisfied subject only to Completion where applicable) or waived (where applicable) on or before 270 (two hundred seventy) days from the Execution Date or such later date as may be mutually agreed between the Parties in writing (“Long Stop Date”); provided that the Seller shall not be entitled to terminate this Agreement pursuant to this Clause 5.4(ii) if Seller’s breach of this Agreement has prevented or materially delayed the consummation of the Transactions (which term for the purposes of this Clause 5.4(ii) shall not include the Financing);
(iii) By the Purchaser, upon written notice to the Seller, if the conditions set out in Clauses 3.2 and 3.3 have not been satisfied (or satisfied subject only to Completion where applicable) or waived (where applicable) on or before the Long Stop Date; provided that the Purchaser shall not be entitled to terminate this Agreement pursuant to this Clause 5.4(iii) if Purchaser’s breach of this Agreement has prevented or materially delayed the consummation of the TransactionsBuyer Guarantor.
(iv) By the Seller (if the Seller is not in material breach of the Seller Warranties, covenants or agreements under this Agreement so as to cause any of the conditions set forth in Clause 3.2 and/or 3.3(i) not to be satisfied), upon written notice to the Purchaser, if there has been a material inaccuracy of any statement or warranty, or any unremedied material breach of a covenant or other agreement, of the Purchaser contained in this Agreement, which violation, breach or inaccuracy would cause any of the conditions set forth in Clause 3.1 and/or 3.3 not to be satisfied as of the Completion Date, and such violation, breach or inaccuracy has not been waived by the Seller or cured by the Purchaser within 20 (twenty) Business Days after receipt by the Purchaser of written notice thereof from the Seller or is not reasonably capable of being cured prior to the Long Stop Date.
(v) By the Purchaser (if the Purchaser is not in material breach of the Purchaser Warranties, covenants or agreements under this Agreement so as to cause any of the conditions set forth in Clause 3.1 and/or 3.3 not to be satisfied), upon written notice to the Seller, if there has been a material inaccuracy of any statement or warranty, or any unremedied material breach of a covenant or other agreement, of the Seller contained in this Agreement, which violation, breach or inaccuracy would cause any of the conditions set forth in Clauses 3.2 and/or 3.3(i) not to be satisfied as of the Completion Date, and such violation, breach or inaccuracy has not been waived by the Purchaser or cured by the Seller within 20 (twenty) Business Days after receipt by the Seller of written notice thereof from the Purchaser or is not reasonably capable of being cured prior to the Long Stop Date.
(vi) By the Seller or the Purchaser, upon written notice to the other, if a court of competent jurisdiction or any other Governmental Authority shall have issued a final, non-appealable order preventing or otherwise prohibiting the consummation of the Transactions.
5.5. 4.4 If this Agreement is terminated prior to Completion in accordance with Clause 5.4 above,
(i) clause 4.3(b), all rights and obligations of the Seller and the Buyer under this Agreement shall become void end (except for rights and of no further obligations under the Surviving Provisions which shall remain in full force and effect; provided, however, that ) and:
(a) the provisions of this Clause 5.5 and Clauses 1 (Definitions and Interpretation), 11 (Announcements and Confidentiality), 12 (Notices), 13 (Governing Law, Disputes and Jurisdiction), 14.1 (Entire Agreement), 14.6 (Variation), 14.7 (No Assignment), 14.8 (Waiver), 14.9 (Severability), 14.10 (Supersession) and 14.11 (Expenses) Parties shall survive the termination of have no further liability in connection with this Agreement indefinitely and whatsoever, including in respect of any rights or liabilities that nothing herein shall relieve any Party from any liability for fraud or any breach have accrued before the date of the provisions of this Agreement prior to such termination; and
(iib) if applicable, the Observer Seller shall no longer be entitled procure that the Deposit is immediately repaid to attend the meetings of Buyer in USD to a bank account specified by the Board (or any committee thereof) and the nominees of the Purchaser appointed on the Board Buyer in accordance with Clause 6.2 shall resign with immediate effectwriting.
Appears in 1 contract
Sources: Agreement for the Sale and Purchase of Shares (Taylor Maritime Investments LTD)
Completion. 5.1. 4.1 Subject to the conditions set out in Clauses 3.1Clause 3, 3.2 and 3.3, First Completion shall take place on the Completion Date.
5.2. The obligations of each sixth (6th) Business Day after the issue and delivery of the Parties under Clause 5.3 below are interdependent of each other. The Completion shall not occur unless all of the obligations specified in Clause 5.3, have been simultaneously complied with and are fully effective.
5.3. On the Completion Date:
(i) Subject to deductions pursuant to Clause 4.4, the Purchaser shall remit the Purchase Consideration (in immediately available funds) to the Seller’s Bank Account.
(ii) The Seller shall (a) provide to its Depository Participant duly executed DP Instructions in the prescribed form for the transfer of the Sale Shares to the Demat Account of the Purchaser (details of which shall be provided to the Seller in writing as soon as practicable after the Execution Date); (b) procure its Depository Participant to duly acknowledge such DP Instructions; (c) deliver a copy of such acknowledgement to the Purchaser; and (d) use best endeavours to procure credit of the Sale Shares to the Demat Account of the Purchaser.
(iii) The Seller shall, to the extent it is able to do so through exercise of its voting rights, procure that a Board meeting is held at which the following business shall be transacted:
(a) the appointment of directors nominated notice by the Purchaser on the Board shall be approved; and
(b) an extra-ordinary general meeting of the shareholders of the Company to approve the matters set out Investors referred to in Clause 5.3(iii)(a) and the amendment of the Articles of Association shall 3.4 (which is intended by all Parties to be convened.
5.4. This Agreement may be terminated on or prior to the Completion Date as follows:
(i) By the mutual written consent of the Purchaser and the Seller.
(ii) By the Seller, upon written notice to the Purchaser, if the conditions set out in Clauses 3.1 and 3.3 have not been satisfied (or satisfied subject only to Completion where applicablelater than 30 November 2005) or waived (where applicable) on or before 270 (two hundred seventy) days from the Execution Date or such later time and date as may be mutually agreed between by the Parties in writing (“Long Stop Date”); provided that Parties, at a place as the Seller shall not be entitled to terminate this Agreement pursuant to this Clause 5.4(ii) if Seller’s breach of this Agreement has prevented or materially delayed Company and the consummation Investors may agree, when all of the Transactions following business shall be transacted simultaneously:
(which term A) the Company shall:
(i) deliver to the Investors certified copies of the Board resolutions and shareholders' resolutions of the Company duly passed in the Agreed Form for (i) approving the issue of the Convertible Notes to the Investors and the issue of the certificates for the purposes Convertible Notes in respect of this Clause 5.4(iithe First Tranche Subscription to the Investors and (ii) shall not include approving the Financing)appointment of each Person nominated by each Investor as a Director;
(ii) issue to the Investors the Convertible Notes in respect of the First Tranche Subscription and deliver to the Investors the relevant certificates of the Company (duly executed under seal) for such Convertible Notes dated the First Completion Date and issued substantially in the form set out in Schedule 5;
(iii) By where the PurchaserRegistration Rights Agreement has not been signed before the First Completion Date, upon written notice deliver to the Seller, if the conditions set out in Clauses 3.2 and 3.3 have not been satisfied Investors five (or satisfied subject only to Completion where applicable5) or waived (where applicable) on or before the Long Stop Date; provided that the Purchaser shall not be entitled to terminate this Agreement pursuant to this Clause 5.4(iii) if Purchaser’s breach of this Agreement has prevented or materially delayed the consummation counterparts of the Transactions.Registration Rights Agreement each duly executed by the Company;
(iv) By deliver to the Seller Investors four (if 4) counterparts of each set of Share Pledging Agreements duly executed by the Seller is not Founder, pursuant to which the Founder shall mortgage, charge and assign absolutely by way of first legal mortgage the following number of Shares in material breach favour of each relevant Investor as a continuing security for the due and punctual performance and observance by the Company of all the obligations of the Seller WarrantiesCompany under Clause 3.2(A) (individually, covenants or agreements under this Agreement so as to cause any a "SHARE PLEDGING AGREEMENT" and collectively, the "SHARE PLEDGING AGREEMENTS"): Investor Number of Common Shares -------- ----------------------- The Funds 755,789 JAFCO 377,895 Total 1,133,684 which represents twenty per cent. (20%) of the conditions set forth total Shares in issue as at the date hereof together with (a) a certified copy of the Board resolution and (b) the stock transfer and power of attorney signed by the Founder, both in the Agreed Form in relation to each Share Pledging Agreement.
(v) deliver to the Investors ten (10) counterparts of the Investment Agreement each duly executed by the Company, the PRC Subsidiaries and the Founder;
(vi) enter the name of such Person as shall be nominated by each Investor in the register of directors of the Company as a Director and make available for collection by the Investors as soon as practicable after First Completion a certified copy of such updated register of directors; and
(vii) deliver to each Investor the deed of indemnity executed by the Company in favour of the Person referred to in Clause 3.2 and/or 3.3(i4.1(A)(vi) not to be satisfied), upon written notice to substantially in the Purchaser, if there has been form set out in Schedule 6;
(viii) a material inaccuracy of any statement or warranty, or any unremedied material breach of a covenant or other agreement, compliance certificate dated as of the Purchaser contained in this AgreementFirst Completion Date executed by each Warrantor or a duly authorized representative of each Warrantor, which violationas applicable, breach or inaccuracy would cause any certifying that all of the conditions set forth in Clause 3.1 and/or 3.3 not (other than Clause 3.1(C)) have been fulfilled; and
(B) each of the Investors shall:
(i) make the payment of the relevant amount of Subscription Price in respect of the First Tranche Subscription to the Company by way of telegraphic transfer to the Company's designated bank account together with evidence that the Subscription Price has or will be credited by telegraphic transfer, for value no later than the next Business Day, into the Company's said designated bank account, details of which are to be satisfied as provided by the Company to all of the Completion Date, and such violation, breach or inaccuracy has not been waived Investors in the same written notice to be given by the Seller or cured Company as referred to in Clause 3.4;
(ii) subject to the receipt of the counterparts from the Company referred to in Clause 4.1(A)(iii), deliver to the Company two (2) counterparts of the Registration Rights Agreement each duly executed by the Purchaser within 20 Investors;
(twentyiii) Business Days after subject to the receipt of the counterparts from the Company referred to in Clause 4.1(A)(iv), deliver to the Company two (2) counterparts of each set of the Share Pledging Agreements each duly executed by the Purchaser relevant Investor;
(iv) subject to the receipt of written notice thereof the counterparts from the Seller or is not reasonably capable of being cured prior Company referred to in Clause 4.1(A)(v), deliver to the Long Stop Date.Company seven (7) counterparts of the Investment Agreement each duly executed by the Investors;
(v) By deliver to the Purchaser Company a letter appointing a Person as a Director and, subject to the Investor's discretion, a Person (if or, where applicable, the Purchaser is not in material breach same person) to be a director of a subsidiary of the Purchaser Warranties, covenants or agreements under this Agreement so as to cause any of the conditions set forth in Clause 3.1 and/or 3.3 not to be satisfied), upon written notice to the Seller, if there has been a material inaccuracy of any statement or warranty, or any unremedied material breach of a covenant or other agreement, of the Seller contained in this Agreement, which violation, breach or inaccuracy would cause any of the conditions set forth in Clauses 3.2 and/or 3.3(i) not to be satisfied as of the Completion Date, and such violation, breach or inaccuracy has not been waived by the Purchaser or cured by the Seller within 20 (twenty) Business Days after receipt by the Seller of written notice thereof from the Purchaser or is not reasonably capable of being cured prior to the Long Stop Date.Company;
(vi) By the Seller or the Purchaser, upon written notice delivery to the otherCompany an acceptance of appointment as Director signed by the Person nominated by the Investor to act as a Director or, if where applicable, a court of competent jurisdiction or any other Governmental Authority shall have issued a final, non-appealable order preventing or otherwise prohibiting the consummation director of the Transactionsrelevant subsidiary of the Company; and
(vii) where applicable, deliver to the Company the duly signed Accredited Investor Certificate (the form of which being set out in Schedule 7) necessary for the Company to claim exemption from the prospectus and registration requirements under the Ontario Securities Act.
5.5. If this Agreement is terminated prior 4.2 Subject to Clause 3, Second Completion shall take place on the sixth (6th) Business Day after the issue and delivery of the notice by the Company to the Investors referred to in accordance with Clause 5.4 above,3.5 or such time and date as may be mutually agreed by the Parties (which in any event shall not be later than 28 February 2006), at a place as the Company and the Investors may agree, when all of the following business shall be transacted simultaneously:
(A) the Company shall:
(i) this Agreement shall become void and of no further force and effect; provided, however, that deliver to the provisions of this Clause 5.5 and Clauses 1 (Definitions and Interpretation), 11 (Announcements and Confidentiality), 12 (Notices), 13 (Governing Law, Disputes and Jurisdiction), 14.1 (Entire Agreement), 14.6 (Variation), 14.7 (No Assignment), 14.8 (Waiver), 14.9 (Severability), 14.10 (Supersession) and 14.11 (Expenses) shall survive the termination of this Agreement indefinitely and that nothing herein shall relieve any Party from any liability for fraud or any breach Investors certified copies of the provisions Board resolutions and shareholders' resolutions of this Agreement prior the Company duly passed in the Agreed Form for approving the issue of the Convertible Notes to the Investors and the issue of the certificates for the Convertible Notes in respect of the Second Tranche Subscription to the Investors;
(ii) issue to the Investors the Convertible Notes in respect of the Second Tranche Subscription and deliver to the Investors the relevant certificates of the Company (duly executed under seal) for such terminationConvertible Notes dated the Second Completion Date and issued substantially in the form set out in Schedule 5; and
(iii) deliver to the Investors four (4) counterparts of each set of the Share Pledge Releases duly executed by the Founder, pursuant to which the relevant Investor shall release the mortgage created under the relevant Share Pledging Agreement (individually, a "SHARE PLEDGE RELEASE" and collectively, the "SHARE PLEDGE RELEASES"); and
(B) each of the Investors shall:
(i) make the payment of the relevant amount of Subscription Price in respect of the Second Tranche Subscription to the Company by way of telegraphic transfer to the Company's designated bank account together with evidence that the Subscription Price has or will be credited by telegraphic transfer, for value no later than the next Business Day, into the Company's said designated bank account, details of which are to be provided by the Company to all of the Investors in the same written notice to be given by the Company as referred to in Clause 3.5;
(ii) if subject to the receipt of the counterparts from the Company referred to in Clause 4.2(A)(iii), deliver to the Company two (2) counterparts of each set of the Share Pledge Releases each duly executed by the relevant Investor; and
(iii) where applicable, deliver to the Company the duly signed Accredited Investor Certificate (the form of which being set out in Schedule 7) necessary for the Company to claim exemption from the prospectus and registration requirements under the Ontario Securities Act.
4.3 For the avoidance of doubt, each of the First Completion and the Second Completion of the subscription of Convertible Notes by all (but not only part) of the Investors shall be conducted simultaneously. Where any Investor fails to complete the subscription, the other Investors shall not be obliged to complete the subscription.
4.4 Where applicable, the Observer Company undertakes that it shall no longer be entitled file the Accredited Investor Forms received by the Investors as referred to attend the meetings of the Board (or any committee thereofin Clauses 4.1(B)(vii) and 4.2(B)(iii) with the nominees of relevant Governmental Authority in Canada forthwith after the Purchaser appointed on First Completion Date or the Board in accordance with Clause 6.2 shall resign with immediate effectSecond Completion Date (as the case may be).
Appears in 1 contract
Completion. 5.1. 8.1 Subject to the conditions set out in Clauses 3.1, 3.2 and 3.3Clause 9, Completion shall take place at the domicile of the Company on the fifth Business Day after the day of satisfaction of all Conditions Precedent or at such other place and/or time as the Parties may agree in writing.
8.2 On or before the Completion Date, the Vendors shall deliver to the Purchaser all documents set out in Schedule II.
5.2. The obligations of each of the Parties under Clause 5.3 below are interdependent of each other. The Completion shall not occur unless all of the obligations specified in Clause 5.3, have been simultaneously complied with and are fully effective.
5.3. 8.3 On or before the Completion Date:
(i) Subject to deductions pursuant to Clause 4.4, the Purchaser shall remit the Purchase Consideration (in immediately available funds) deliver to the Seller’s Bank Account.Vendors the following documents:
(1) a certified true copy of the resolution of the special meeting of stockholders of the Purchaser approving: (i) the Purchaser executing this Agreement and carrying out the transactions contemplating hereunder; and (ii) The Seller shall (a) provide to its Depository Participant duly executed DP Instructions in the prescribed form for Purchaser issuing the transfer of the Sale Consideration Shares to the Demat Account Vendors in accordance with this Agreement;
(2) a certified true copy of the Purchaser (details of which shall be provided to the Seller in writing as soon as practicable after the Execution Date); (b) procure its Depository Participant to duly acknowledge such DP Instructions; (c) deliver a copy of such acknowledgement to the Purchaser; and (d) use best endeavours to procure credit resolution of the Sale Shares to the Demat Account board of directors of the Purchaser.
(iii) The Seller shall, to the extent it is able to do so through exercise of its voting rights, procure that a Board meeting is held at which the following business shall be transacted:
(a) the appointment of directors nominated by the Purchaser on the Board shall be approved; and
(b) an extra-ordinary general meeting of the shareholders of the Company to approve the matters set out in Clause 5.3(iii)(a) and the amendment of the Articles of Association shall be convened.
5.4. This Agreement may be terminated on or prior to the Completion Date as follows:
(i) By the mutual written consent of the Purchaser and the Seller.
(ii) By the Seller, upon written notice to the Purchaser, if the conditions set out in Clauses 3.1 and 3.3 have not been satisfied (or satisfied subject only to Completion where applicable) or waived (where applicable) on or before 270 (two hundred seventy) days from the Execution Date or such later date as may be mutually agreed between the Parties in writing (“Long Stop Date”); provided that the Seller shall not be entitled to terminate this Agreement pursuant to this Clause 5.4(ii) if Seller’s breach of this Agreement has prevented or materially delayed the consummation of the Transactions (which term for the purposes of this Clause 5.4(ii) shall not include the Financing);
(iii) By the Purchaser, upon written notice to the Seller, if the conditions set out in Clauses 3.2 and 3.3 have not been satisfied (or satisfied subject only to Completion where applicable) or waived (where applicable) on or before the Long Stop Date; provided that the Purchaser shall not be entitled to terminate this Agreement pursuant to this Clause 5.4(iii) if Purchaser’s breach of this Agreement has prevented or materially delayed the consummation of the Transactions.
(iv) By the Seller (if the Seller is not in material breach of the Seller Warranties, covenants or agreements under this Agreement so as to cause any of the conditions set forth in Clause 3.2 and/or 3.3(i) not to be satisfied), upon written notice to the Purchaser, if there has been a material inaccuracy of any statement or warranty, or any unremedied material breach of a covenant or other agreement, of the Purchaser contained in this Agreement, which violation, breach or inaccuracy would cause any of the conditions set forth in Clause 3.1 and/or 3.3 not to be satisfied as of the Completion Date, and such violation, breach or inaccuracy has not been waived by the Seller or cured by the Purchaser within 20 (twenty) Business Days after receipt by the Purchaser of written notice thereof from the Seller or is not reasonably capable of being cured prior to the Long Stop Date.
(v) By the Purchaser (if the Purchaser is not in material breach of the Purchaser Warranties, covenants or agreements under this Agreement so as to cause any of the conditions set forth in Clause 3.1 and/or 3.3 not to be satisfied), upon written notice to the Seller, if there has been a material inaccuracy of any statement or warranty, or any unremedied material breach of a covenant or other agreement, of the Seller contained in this Agreement, which violation, breach or inaccuracy would cause any of the conditions set forth in Clauses 3.2 and/or 3.3(i) not to be satisfied as of the Completion Date, and such violation, breach or inaccuracy has not been waived by the Purchaser or cured by the Seller within 20 (twenty) Business Days after receipt by the Seller of written notice thereof from the Purchaser or is not reasonably capable of being cured prior to the Long Stop Date.
(vi) By the Seller or the Purchaser, upon written notice to the other, if a court of competent jurisdiction or any other Governmental Authority shall have issued a final, non-appealable order preventing or otherwise prohibiting the consummation of the Transactions.
5.5. If this Agreement is terminated prior to Completion in accordance with Clause 5.4 above,
approving: (i) this Agreement shall become void and of no further force and effectthe transactions contemplating hereunder; provided, however, that (ii) authorising the provisions of this Clause 5.5 and Clauses 1 (Definitions and Interpretation), 11 (Announcements and Confidentiality), 12 (Notices), 13 (Governing Law, Disputes and Jurisdiction), 14.1 (Entire Agreement), 14.6 (Variation), 14.7 (No Assignment), 14.8 (Waiver), 14.9 (Severability), 14.10 (Supersession) and 14.11 (Expenses) shall survive the termination execution of this Agreement indefinitely and that nothing herein shall relieve any Party from any liability for fraud or any breach appointment of Vendor A as director and president(China) of the provisions Purchaser and Vendor B as director of the Purchaser which shall take effect on the Completion Date; and (iii) issuing the Consideration Shares to the Vendors in accordance with this Agreement;
(3) the necessary Approval from NASDAQ, and other regulatory authorities;
(4) a certified true copy of the share certificates of 20% of the Consideration Shares; the original share certificates in respect of 80% of the Consideration Shares shall be delivered to the Vendors, the original share certificates in respect of 10% of the Consideration Shares shall be pledged to the Purchaser in accordance with Clause 6 and the original share certificates in respect of the remaining 10% shall be delivered to the Custodian Agent for its holding, custody and disposal pursuant to Clause 4;
(5) the duly executed Employment Contract by which the Purchaser appoints Vendor A as director and president(China) of the Purchaser;
(6) the duly executed Custodian Agreement prior in relation to such terminationthe custody of 10% of the Consideration Shares; and
(ii7) if applicable, documents evidencing the Observer shall no longer be entitled to attend the meetings obtaining of necessary approvals for change of the Board (or any committee thereof) and the nominees of the Purchaser appointed on the Board in accordance with Clause 6.2 shall resign with immediate effect.Purchaser’s name to “BMP Sunstone Corporation”
Appears in 1 contract
Sources: Sale and Purchase Agreement (Beijing Med Pharm Corp)
Completion. 5.1. Subject to the conditions set out in Clauses 3.1, 3.2 and 3.3, 4.1 Completion shall take place on the Completion Date at the offices of the Purchaser's Solicitors.
4.2 On Completion the Seller shall deliver to the Purchaser, at the principal office of the Business, or (if so requested by the Purchaser) make available to the Purchaser such of the Sale Assets as are capable of being transferred by delivery, together with:
4.2.1 the Promissory Note duly executed by the Seller;
4.2.2 the Debenture duly executed by the Seller;
4.2.3 the Business Records;
4.2.4 all Business Information;
4.2.5 copies of all National Insurance and PAYE records completed and up-to-date;
4.2.6 the original documents in the possession or control of the Seller in respect of the Contracts;
4.2.7 such documents as are reasonably required by the Purchaser to complete the sale and purchase of the Sale Assets and vest title to the Sale Assets in the Purchaser; and
4.3 On Completion ▇▇ ▇▇▇▇▇▇ shall deliver to the Purchaser's Solicitors:
4.3.1 the Service Agreement duly executed by ▇▇ ▇▇▇▇▇▇; and
4.3.2 the Guarantee duly executed by ▇▇ ▇▇▇▇▇▇ and DMD N.V..
4.4 If all or any of the transactions set out in Clauses 4.2 and 4.3 do not take place as provided, the Purchaser may promptly rescind this Agreement without prejudice to any other remedy it may have.
4.5 The Purchaser shall then deliver to ▇▇ ▇▇▇▇▇▇ the Service Agreement duly executed by it.
4.6 Rights in and title to the Sale Assets shall pass to the Purchaser on the Completion Date.
5.2. The obligations of each of the Parties under Clause 5.3 below are interdependent of each other. The Completion shall not occur unless all of the obligations specified in Clause 5.3, have been simultaneously complied with and are fully effective.
5.3. On the Completion Date:
(i) 4.7 Subject to deductions pursuant to Clause 4.4, 9 (Contracts and Third Party Consents) the Purchaser shall remit the Purchase Consideration (in immediately available funds) to the Seller’s Bank Account.
(ii) The Seller shall (a) provide to its Depository Participant duly executed DP Instructions in the prescribed form for the transfer of the Sale Shares to the Demat Account of the Purchaser (details of which shall be provided to the Seller in writing at Completion or as soon as practicable after the Execution Date); (b) procure its Depository Participant to duly acknowledge such DP Instructions; (c) Completion deliver a copy of such acknowledgement to the Purchaser; Purchaser all transfers, assignments and novations of those Sale Assets which are not capable of being transferred by delivery, together with all relevant documents of title.
4.8 The Seller shall (d) and shall use best its reasonable endeavours to procure credit any third party as is necessary to) after the date of the Sale Shares to the Demat Account of the Purchaser.
(iii) The Seller shall, to the extent it is able to do so through exercise of its voting rights, procure that a Board meeting is held at which the following business shall be transacted:
(a) the appointment of directors nominated by the Purchaser on the Board shall be approved; and
(b) an extra-ordinary general meeting of the shareholders of the Company to approve the matters set out in Clause 5.3(iii)(a) and the amendment of the Articles of Association shall be convened.
5.4. This Agreement may be terminated on or prior to the Completion Date as follows:
(i) By the mutual written consent of the Purchaser and the Seller.
(ii) By the Sellerthis Agreement, upon written notice to reasonable request by the Purchaser, if execute and perform any further deeds, documents and acts so requested to give full effect to the conditions set out in Clauses 3.1 and 3.3 have not been satisfied (or satisfied subject only to Completion where applicable) or waived (where applicable) on or before 270 (two hundred seventy) days from the Execution Date or such later date as may be mutually agreed between the Parties in writing (“Long Stop Date”); provided that the Seller shall not be entitled to terminate this Agreement pursuant to this Clause 5.4(ii) if Seller’s breach terms of this Agreement has prevented or materially delayed including (without limitation) to vest in and assure to the consummation of Purchaser whatever right, title and interest the Transactions (Seller may have in the Sale Assets and pending which term shall hold such Sale Assets on trust for the Purchaser absolutely and will dispose, transfer and deal with such Sale Assets at such time and in such manner as the Purchaser directs.
4.9 The parties shall upon reasonable request afford to each other and to each party's representatives such access during normal business hours to the statutory and accounting records and all other documents relating to the Business as are in each party's control for the purposes of this Clause 5.4(ii) inspecting and copying the same, and neither party shall not include use any such records, documents or the Financing);
(iii) By the Purchaser, upon written notice to the Seller, if the conditions set out in Clauses 3.2 and 3.3 have not been satisfied (or satisfied subject only to Completion where applicable) or waived (where applicable) on or before the Long Stop Date; provided that the Purchaser shall not be entitled to terminate this Agreement pursuant to this Clause 5.4(iii) if Purchaser’s breach of this Agreement has prevented or materially delayed the consummation of the Transactions.
(iv) By the Seller (if the Seller is not in material breach of the Seller Warranties, covenants or agreements under this Agreement so as to cause any of the conditions set forth in Clause 3.2 and/or 3.3(i) not to be satisfied), upon written notice to the Purchaser, if there has been a material inaccuracy of any statement or warranty, or any unremedied material breach of a covenant or other agreement, of the Purchaser information contained in this Agreementthem for any purpose other than for accounting, which violationaudit and tax purposes. Each party shall keep such records, breach or inaccuracy would cause any of the conditions set forth documents and information in Clause 3.1 and/or 3.3 not to be satisfied as of the Completion Date, and such violation, breach or inaccuracy has not been waived by the Seller or cured by the Purchaser within 20 (twenty) Business Days after receipt by the Purchaser of written notice thereof from the Seller or is not reasonably capable of being cured prior to the Long Stop Datestrict confidence.
(v) By the Purchaser (if the Purchaser is not in material breach of the Purchaser Warranties, covenants or agreements under this Agreement so as to cause any of the conditions set forth in Clause 3.1 and/or 3.3 not to be satisfied), upon written notice to the Seller, if there has been a material inaccuracy of any statement or warranty, or any unremedied material breach of a covenant or other agreement, of the Seller contained in this Agreement, which violation, breach or inaccuracy would cause any of the conditions set forth in Clauses 3.2 and/or 3.3(i) not to be satisfied as of the Completion Date, and such violation, breach or inaccuracy has not been waived by the Purchaser or cured by the Seller within 20 (twenty) Business Days after receipt by the Seller of written notice thereof from the Purchaser or is not reasonably capable of being cured prior to the Long Stop Date.
(vi) By the Seller or the Purchaser, upon written notice to the other, if a court of competent jurisdiction or any other Governmental Authority shall have issued a final, non-appealable order preventing or otherwise prohibiting the consummation of the Transactions.
5.5. If this Agreement is terminated prior to Completion in accordance with Clause 5.4 above,
(i) this Agreement shall become void and of no further force and effect; provided, however, that the provisions of this Clause 5.5 and Clauses 1 (Definitions and Interpretation), 11 (Announcements and Confidentiality), 12 (Notices), 13 (Governing Law, Disputes and Jurisdiction), 14.1 (Entire Agreement), 14.6 (Variation), 14.7 (No Assignment), 14.8 (Waiver), 14.9 (Severability), 14.10 (Supersession) and 14.11 (Expenses) shall survive the termination of this Agreement indefinitely and that nothing herein shall relieve any Party from any liability for fraud or any breach of the provisions of this Agreement prior to such termination; and
(ii) if applicable, the Observer shall no longer be entitled to attend the meetings of the Board (or any committee thereof) and the nominees of the Purchaser appointed on the Board in accordance with Clause 6.2 shall resign with immediate effect.
Appears in 1 contract
Sources: Agreement for the Sale of the Seller's Business and Assets (Dental Medical Diagnostic Systems Inc)
Completion. 5.1. Subject to the conditions set out in Clauses 3.1, 3.2 and 3.3, 4.1 Completion shall take place on upon the fulfilment of parties’ obligations stated in Clause 4.2 (the “Completion Date”).
5.2. 4.2 Parties hereby agree that:-
(a) The obligations of each of Purchaser shall transfer the Parties under Clause 5.3 below are interdependent of each other. The Completion shall not occur unless all of Purchase Consideration to the obligations Escrow Agent’s designated account as specified in Clause 5.3the Escrow Agreement within two (2) business days from the date of this Agreement.
(b) The Vendor shall deliver the duly executed share transfer documents to the Escrow Agent within ten (10) business days from the date of this Agreement or as soon thereafter as practicable without undue delay. For avoidance of doubt, the share transfer documents shall be as follows:-
i) Instrument of Transfer
ii) Vstock Transfer Instruction Form
iii) VCCL resolution authorising the transfer
(c) Upon confirmation from the Escrow Agent that both the Purchase Consideration and the share transfer documents have been simultaneously complied with received and are fully effective.
5.3. On after the Completion Date:
share transfer has been completed as confirmed by the Transfer Agent , the Escrow Agent shall: (i) Subject to deductions pursuant to Clause 4.4, the Purchaser shall remit Release the Purchase Consideration (in immediately available funds) to the Seller’s Bank Account.
Vendor; and (ii) The Seller shall (a) provide Release the share transfer documents to its Depository Participant duly executed DP Instructions in the prescribed form for the transfer of the Sale Shares to the Demat Account of the Purchaser (details of which shall be provided to the Seller in writing as soon as practicable after the Execution Date); (b) procure its Depository Participant to duly acknowledge such DP Instructions; (c) deliver a copy of such acknowledgement to the Purchaser; and (d) use best endeavours to procure credit of the Sale Shares to the Demat Account of the Purchaser.
(iii) 4.3 The Seller shall, to detailed process and timeline for the extent it is able to do so through exercise of its voting rights, procure that a Board meeting is held at which the following business actions described in Clause 4.2 shall be transacted:
(a) the appointment of directors nominated governed by the Purchaser on Escrow Agreement.
4.4 Upon completion of the Board actions in Clause 4.2, and confirmation from the Escrow Agent of receipt of the Purchase Consideration, Completion shall be approved; anddeemed to have occurred.
(b) an extra-ordinary general meeting of 4.5 Upon Completion, the shareholders of the Company to approve the matters set out in Clause 5.3(iii)(a) Vendor and the amendment of the Articles of Association Purchaser shall be convened.
5.4. This Agreement may be terminated on or prior deemed to the Completion Date as follows:
(i) By the mutual written consent of the Purchaser have released and the Seller.
(ii) By the Sellerdischarged each other from any and all claims, upon written notice to the Purchaserdemands, if the conditions set out in Clauses 3.1 and 3.3 have not been satisfied (or satisfied subject only to Completion where applicable) or waived (where applicable) on or before 270 (two hundred seventy) days from the Execution Date or such later date as may be mutually agreed between the Parties in writing (“Long Stop Date”); provided that the Seller shall not be entitled to terminate this Agreement pursuant to this Clause 5.4(ii) if Seller’s breach of this Agreement has prevented or materially delayed the consummation of the Transactions (which term for the purposes of this Clause 5.4(ii) shall not include the Financing);
(iii) By the Purchaser, upon written notice to the Seller, if the conditions set out in Clauses 3.2 and 3.3 have not been satisfied (or satisfied subject only to Completion where applicable) or waived (where applicable) on or before the Long Stop Date; provided that the Purchaser shall not be entitled to terminate this Agreement pursuant to this Clause 5.4(iii) if Purchaser’s breach of this Agreement has prevented or materially delayed the consummation of the Transactions.
(iv) By the Seller (if the Seller is not in material breach of the Seller Warranties, covenants or agreements under this Agreement so as to cause any of the conditions set forth in Clause 3.2 and/or 3.3(i) not to be satisfied), upon written notice to the Purchaser, if there has been a material inaccuracy of any statement or warrantyactions, or any unremedied material breach causes of a covenant action, whether direct or other agreementindirect, known or unknown, in whichever jurisdiction, arising out of or in connection with the Purchaser contained in Sale Shares and/or this Agreement, which violation, breach or inaccuracy would cause any of the conditions set forth in Clause 3.1 and/or 3.3 not to be satisfied as of the Completion Date, and such violation, breach or inaccuracy has not been waived by the Seller or cured by the Purchaser within 20 (twenty) Business Days after receipt by the Purchaser of written notice thereof from the Seller or is not reasonably capable of being cured prior to the Long Stop Date.
(v) By the Purchaser (if the Purchaser is not in material breach of the Purchaser Warranties, covenants or agreements under this Agreement so as to cause any of the conditions set forth in Clause 3.1 and/or 3.3 not to be satisfied), upon written notice to the Seller, if there has been a material inaccuracy of any statement or warranty, or any unremedied material breach of a covenant or other agreement, of the Seller contained in this Agreement, which violation, breach or inaccuracy would cause any of the conditions set forth in Clauses 3.2 and/or 3.3(i) not to be satisfied as of the Completion Date, and such violation, breach or inaccuracy has not been waived by the Purchaser or cured by the Seller within 20 (twenty) Business Days after receipt by the Seller of written notice thereof from the Purchaser or is not reasonably capable of being cured prior to the Long Stop Date.
(vi) By the Seller or the Purchaser, upon written notice to the other, if a court of competent jurisdiction or any other Governmental Authority shall have issued a final, non-appealable order preventing or otherwise prohibiting the consummation of the Transactions.
5.5. If this Agreement is terminated prior to Completion in accordance with Clause 5.4 above,
(i) this Agreement shall become void and of no further force and effect; provided, however, that the provisions of this Clause 5.5 and Clauses 1 (Definitions and Interpretation), 11 (Announcements and Confidentiality), 12 (Notices), 13 (Governing Law, Disputes and Jurisdiction), 14.1 (Entire Agreement), 14.6 (Variation), 14.7 (No Assignment), 14.8 (Waiver), 14.9 (Severability), 14.10 (Supersession) and 14.11 (Expenses) shall survive the termination of this Agreement indefinitely and that nothing herein shall relieve any Party from any liability for fraud or any breach of the provisions of this Agreement prior to such termination; and
(ii) if applicable, the Observer shall no longer be entitled to attend the meetings of the Board (or any committee thereof) and the nominees of the Purchaser appointed on the Board in accordance with Clause 6.2 shall resign with immediate effect.
Appears in 1 contract
Completion. 5.1. 7.1 Subject to the conditions set out in Clauses 3.1, 3.2 and 3.3remainder of this clause 7, Completion of the sale and purchase of the Shares shall take place on the Completion Date.
5.2. The obligations of each of the Parties under Clause 5.3 below are interdependent of each other. The Completion shall not occur unless all of the obligations specified in Clause 5.3, have been simultaneously complied with and are fully effective.
5.3. On the Completion Date:
(i) Subject to deductions pursuant to Clause 4.4, the Purchaser shall remit the Purchase Consideration (in immediately available funds) to the Seller’s Bank Account.
(ii) The Seller shall (a) provide to its Depository Participant duly executed DP Instructions in the prescribed form for the transfer of the Sale Shares to the Demat Account of the Purchaser (details of which shall be provided to the Seller in writing as soon as practicable after the Execution Date); (b) procure its Depository Participant to duly acknowledge such DP Instructions; (c) deliver a copy of such acknowledgement to the Purchaser; and (d) use best endeavours to procure credit of the Sale Shares to the Demat Account of the Purchaser.
(iii) The Seller shall, to the extent it is able to do so through exercise of its voting rights, procure that a Board meeting is held at which the following business shall be transactedon:
(a) the appointment of directors nominated by the Purchaser on the Board shall be approved; and
(b) an extra-ordinary general meeting of the shareholders of the Company later to approve the matters set out in Clause 5.3(iii)(a) and the amendment of the Articles of Association shall be convened.
5.4. This Agreement may be terminated on or prior to the Completion Date as followsoccur of:
(i) By the mutual written consent of the Purchaser and the Seller.
date falling twenty (ii) By the Seller, upon written notice to the Purchaser, if the conditions set out in Clauses 3.1 and 3.3 have not been satisfied (or satisfied subject only to Completion where applicable) or waived (where applicable) on or before 270 (two hundred seventy) days from the Execution Date or such later date as may be mutually agreed between the Parties in writing (“Long Stop Date”); provided that the Seller shall not be entitled to terminate this Agreement pursuant to this Clause 5.4(ii) if Seller’s breach of this Agreement has prevented or materially delayed the consummation of the Transactions (which term for the purposes of this Clause 5.4(ii) shall not include the Financing);
(iii) By the Purchaser, upon written notice to the Seller, if the conditions set out in Clauses 3.2 and 3.3 have not been satisfied (or satisfied subject only to Completion where applicable) or waived (where applicable) on or before the Long Stop Date; provided that the Purchaser shall not be entitled to terminate this Agreement pursuant to this Clause 5.4(iii) if Purchaser’s breach of this Agreement has prevented or materially delayed the consummation of the Transactions.
(iv) By the Seller (if the Seller is not in material breach of the Seller Warranties, covenants or agreements under this Agreement so as to cause any of the conditions set forth in Clause 3.2 and/or 3.3(i) not to be satisfied), upon written notice to the Purchaser, if there has been a material inaccuracy of any statement or warranty, or any unremedied material breach of a covenant or other agreement, of the Purchaser contained in this Agreement, which violation, breach or inaccuracy would cause any of the conditions set forth in Clause 3.1 and/or 3.3 not to be satisfied as of the Completion Date, and such violation, breach or inaccuracy has not been waived by the Seller or cured by the Purchaser within 20 (twenty20) Business Days after receipt by the Purchaser of written notice thereof from date on which the Seller or last Condition is not reasonably capable of being cured prior to the Long Stop Date.
(v) By the Purchaser (if the Purchaser is not in material breach of the Purchaser Warranties, covenants or agreements under this Agreement so as to cause any of the conditions set forth in Clause 3.1 and/or 3.3 not to be satisfied), upon written notice to the Seller, if there has been a material inaccuracy of any statement or warranty, or any unremedied material breach of a covenant or other agreement, of the Seller contained in this Agreement, which violation, breach or inaccuracy would cause any of the conditions set forth in Clauses 3.2 and/or 3.3(i) not to be satisfied as of the Completion Date, and such violation, breach or inaccuracy has not been waived by the Purchaser or cured by the Seller within 20 (twenty) Business Days after receipt by the Seller of written notice thereof from the Purchaser or is not reasonably capable of being cured prior to the Long Stop Date.
(vi) By the Seller or the Purchaser, upon written notice to the other, if a court of competent jurisdiction or any other Governmental Authority shall have issued a final, non-appealable order preventing or otherwise prohibiting the consummation of the Transactions.
5.5. If this Agreement is terminated prior to Completion in accordance with Clause 5.4 above,
(i) this Agreement shall become void and of no further force and effect; provided, however, that the provisions of this Clause 5.5 and Clauses 1 (Definitions and Interpretation), 11 (Announcements and Confidentiality), 12 (Notices), 13 (Governing Law, Disputes and Jurisdiction), 14.1 (Entire Agreement), 14.6 (Variation), 14.7 (No Assignment), 14.8 (Waiver), 14.9 (Severability), 14.10 (Supersession) and 14.11 (Expenses) shall survive the termination of this Agreement indefinitely and that nothing herein shall relieve any Party from any liability for fraud or any breach of the provisions of this Agreement prior to such termination; and
(ii) if applicablethe date that is forty five (45) Business Days after the date on which the updated KPMG VDD Reports are delivered to the Buyer in accordance with clause 6.28; or
(b) such other date and/or at such other time and place as the Sellers’ Representative and the Buyer may agree.
7.2 On Completion, the Observer Sellers and the Buyer shall no longer be entitled perform, or procure the performance of, their respective obligations in relation to attend the meetings sale and purchase of the Board Shares simultaneously and in accordance with and as set out in Schedule 4.
7.3 The Sellers hereby confirm that: the Sellers’ Solicitors are irrevocably authorised by the Sellers to receive payment of the Consideration (or including the Initial Purchase Price and any committee thereofadjustment amounts pursuant to clause 3.12 on the Sellers’ behalf and the receipt by the Sellers’ Solicitors of the relevant amounts shall be a sufficient discharge for the Buyer of its obligations under clause 7.2 and clause 3.12(a) and the nominees of Buyer shall not be concerned to see to the Purchaser appointed on application thereof or be responsible for the Board further distribution from the Sellers’ Solicitors to each Seller.
7.4 If:
(a) as at the date that all the Conditions have been satisfied or waived, the Release Documents are not in a form satisfactory to the Buyer (acting reasonably) or executed Release Documents (in a form satisfactory to the Buyer (acting reasonably)) have not been delivered to the Buyer in accordance with Clause 6.13(a), the Buyer shall (prior to deferring Completion pursuant to clause 7.4(b)) set a new time for Completion, which shall be ten (10) Business Days after the date on which the Sellers deliver executed Release Documents (in a form satisfactory to the Buyer (acting reasonably)) pursuant to clause 6.13(a); and/or
(b) prior to or at the moment on which Completion is to be effected, for any reason either the Sellers or the Buyer does not do or does not procure to be done all those things set out in relation to it or its Group in Schedule 4 (the “Defaulting Party”), the Sellers (in the event the Defaulting Party is a Buyer) or the Buyer (in the event the Defaulting Party is any of the Sellers) may elect (in addition and without prejudice to all other remedies available to them) to either:
(i) unilaterally set a new time for Completion, not being more than five (5) Business Days later than the original date planned for Completion (a “Deferred Completion”), in which case this clause 7.4 shall also apply to such Deferred Completion, or
(ii) effect Completion as far as practicable (without in any way limiting the other party’s rights or remedies under this Agreement or by law, to, amongst other things, claim for damages).
7.5 If, at the moment on which the Deferred Completion is to be effected, for any reason either the Sellers or the Buyer has not done or have not procured to be done those things listed in: (i) paragraphs 1.1, 1.2, 1.4, 1.8, 1.10, 1.11 and 1.13 of Part 1 of Schedule 4 and in clauses 6.6 and 6.7 in case of the Sellers, and (ii) paragraphs 1.14, 1.15 and 1.16 of Part 2 of Schedule 4 in case of the Buyer (the “Material Completion Obligations”), the Sellers (in the event the Defaulting Party is the Buyer) or the Buyer (in the event the Defaulting Party is any of the Sellers) may (in addition and without prejudice to all other remedies available to it) terminate this Agreement.
7.6 If, on the date on which the last of the Conditions is satisfied, for any reason the Reorganisation (other than Future System Milestone Completion) has not been implemented and completed in accordance with clause 6.2 (disregarding for this purpose any Immaterial Reorganisation Default) (the “Reorganisation Completion Obligation”), the Completion Date shall, subject to clause 7.7 and unless the parties agree otherwise in writing, be automatically deferred until after the Reorganisation Completion Obligation has been satisfied or such shorter period as agreed by the parties in writing (the “Extension Period”). During the Extension Period (i) clause 6.2 shall resign with immediate effectcontinue to apply to the Sellers, (ii) the parties shall work together in good faith to satisfy the Reorganisation Completion Obligation so that Completion can take place as soon as possible, and (iii) the Sellers shall provide such information and supporting documentation as is reasonably requested by the Buyer for the purpose of this clause 7.
Appears in 1 contract
Sources: Sale and Purchase Agreement (GTT Communications, Inc.)
Completion. 5.1. 5.1 Subject to the conditions set out in Clauses 3.1, 3.2 and 3.3, Completion as hereinafter provided completion shall take place at the Hong Kong Special Administrative Region on the Completion DateDate between the hours of 9:00 a.m. to 5.00 p.m. or at such other place and between such other hours as may be agreed between the parties hereto.
5.2. The obligations of each 5.2 On Completion the Vendor and the Company shall deliver and produce to the Purchaser :-
(a) duly executed transfers and contract notes of the Parties under Clause 5.3 below are interdependent of each other. The Completion shall not occur unless all Sale Share in favour of the obligations specified Purchaser and/or such person(s) as the Purchaser may direct or nominate, accompanied by the relative share certificates in Clause 5.3respect of the Sale Share;
(b) such shares or any documents of the Company as the Purchaser may require to enable the Purchaser and/or its representative or nominee to be registered as holders of the Sale Share;
(c) written resolutions of the directors of the Company (as the Purchaser may require) approving and/or ratifying the entering into of this Agreement and the due performance thereof;
(d) such written evidence as may be reasonably satisfactory to the Purchaser to prove that the directors of the Company have, have been simultaneously complied with before the signing of this Agreement duly made, and are fully effective.will, before and on completion, duly make full disclosure of their respective interests in, of or in relation to this Agreement or the transaction herein contemplated pursuant to the Law, the Articles of Association of the Company, and otherwise;
5.3. On (e) the Completion Dateoriginals as well as duly certified copies of the board resolutions of the then existing directors :-
(i) Subject revoking all existing authorities to deductions pursuant to Clause 4.4, bankers in respect of the operation of its bank accounts and giving authority in favour of such persons as the Purchaser shall remit the Purchase Consideration (in immediately available funds) may nominate to the Seller’s Bank Account.operate such accounts;
(ii) The Seller shall appointing such persons (awithin the maximum number permitted by the Articles of Association) provide to its Depository Participant duly executed DP Instructions in the prescribed form for the transfer of the Sale Shares to the Demat Account of as the Purchaser (details of which shall be provided to the Seller in writing may nominate as soon as practicable after the Execution Date)directors; (b) procure its Depository Participant to duly acknowledge such DP Instructions; (c) deliver a copy of such acknowledgement to the Purchaser; and (d) use best endeavours to procure credit of the Sale Shares to the Demat Account of the Purchaser.and
(iii) The Seller shall, approving the registration of the said share transfers subject to the extent it is able same being duly stamped;
(f) the Existing Management Accounts which must show full compliance with the terms and conditions of this Agreement;
(g) the statutory books of the Company which must be duly completed and written up to do so through exercise date;
(h) all books, accounts, papers and records of its voting rightsthe Company;
(i) the written resignations of all the then existing directors of Company from their directorships with acknowledgements signed by each of them in a form annexed hereto as Appendix 6 to the effect that they have no claim against the Company for compensation for loss of office, procure fees or disbursements or otherwise whatsoever;
(j) the written resignations of the then existing Secretary of the Company if any to take effect on the date of completion with acknowledgements signed by each of them in a form annexed hereto as Appendix 6 to the effect that a Board meeting is held at which they have no claim against the following business Company for compensation for loss of office, fees or disbursements or otherwise whatsoever;
(k) duly executed Share Mortgage Deed pursuant to Clause 2.2(i);
(l) duly executed Escrow Deed pursuant to Clause 2.2(iii);
(m) duly executed Deed of Settlement of Debt pursuant to Clause 2.2 (iv);
(n) duly executed Guarantee Agreement pursuant to Clause 2.2(v);
(o) duly executed Licence agreement pursuant to Clause 2.2 (vi);
(p) all approval from the PRC authority for implementating matters arising in Clause 5.2 (a) to (o), if required.
5.3 Against compliance with the foregoing provisions the Purchaser shall be transactedpay or guarantee to pay and satisfy the balance of the Price in the manner specified in Clause 2. Also on completion the Purchaser shall deliver and produce to the Vendor :-
(a) duly executed transfers and contract notes of the appointment Sale Share in favour of directors nominated the Vendor and/or such person(s) as the Vendor may direct or nominate, accompanied by the relative share certificates in respect of the Sale Share in accordance to the terms and conditions of the Share Mortgage Deed to be executed by the Purchaser on and deposit the Board shall be approved; andSale Share to the Escrow Agent in accordance to the terms and conditions of the Escrow Deed pursuant to Clause 2.2(iii);
(b) an extra-ordinary general meeting of the shareholders of the Company to approve the matters set out in Clause 5.3(iii)(a) and the amendment of the Articles of Association shall be convened.
5.4. This Agreement may be terminated on or prior to the Completion Date such waivers and/or consents and/or resolutions signed by directors as follows:required;
(ic) By the mutual written consent of the Purchaser and the Seller.
(ii) By the Seller, upon written notice to the Purchaser, if the conditions set out in Clauses 3.1 and 3.3 have not been satisfied (or satisfied subject only to Completion where applicable) or waived (where applicable) on or before 270 (two hundred seventy) days from the Execution Date or such later date as may be mutually agreed between the Parties in writing (“Long Stop Date”); provided that the Seller shall not be entitled to terminate this Agreement duly executed Share Mortgage Deed pursuant to this Clause 5.4(ii) if Seller’s breach of this Agreement has prevented or materially delayed the consummation of the Transactions (which term for the purposes of this Clause 5.4(ii) shall not include the Financing2.2(i);
(iiid) By duly executed Assignment of the PurchaserLanded Properties pursuant to Clause 2.2(ii) (if any or if not adjourned pursuant to Clause 2.2);
(e) duly executed Escrow Deed pursuant to Clause 2.2(iii);
(f) duly executed Guarantee Agreement Pursuant to Clause 2.2(v);
(g) all approvals from both the PRC authority and its PRC Shareholder of the Subsidiary, upon written notice namely for implementating matters arising in Clause 5.3 (a) to the Seller(f), if the conditions set out in Clauses 3.2 and 3.3 have not been satisfied (or satisfied subject only to Completion where applicable) or waived (where applicable) on or before the Long Stop Date; provided that the Purchaser shall not be entitled to terminate this Agreement pursuant to this Clause 5.4(iii) if Purchaser’s breach of this Agreement has prevented or materially delayed the consummation of the Transactionsrequired.
(iv) By the Seller (if the Seller is not in material breach of the Seller Warranties, covenants or agreements under this Agreement so as to cause any of the conditions set forth in Clause 3.2 and/or 3.3(i) not to be satisfied), upon written notice to the Purchaser, if there has been a material inaccuracy of any statement or warranty, or any unremedied material breach of a covenant or other agreement, of the Purchaser contained in this Agreement, which violation, breach or inaccuracy would cause any of the conditions set forth in Clause 3.1 and/or 3.3 not to be satisfied as of the Completion Date, and such violation, breach or inaccuracy has not been waived by the Seller or cured by the Purchaser within 20 (twenty) Business Days after receipt by the Purchaser of written notice thereof from the Seller or is not reasonably capable of being cured prior to the Long Stop Date.
(v) By the Purchaser (if the Purchaser is not in material breach of the Purchaser Warranties, covenants or agreements under this Agreement so as to cause any of the conditions set forth in Clause 3.1 and/or 3.3 not to be satisfied), upon written notice to the Seller, if there has been a material inaccuracy of any statement or warranty, or any unremedied material breach of a covenant or other agreement, of the Seller contained in this Agreement, which violation, breach or inaccuracy would cause any of the conditions set forth in Clauses 3.2 and/or 3.3(i) not to be satisfied as of the Completion Date, and such violation, breach or inaccuracy has not been waived by the Purchaser or cured by the Seller within 20 (twenty) Business Days after receipt by the Seller of written notice thereof from the Purchaser or is not reasonably capable of being cured prior to the Long Stop Date.
(vi) By the Seller or the Purchaser, upon written notice to the other, if a court of competent jurisdiction or any other Governmental Authority shall have issued a final, non-appealable order preventing or otherwise prohibiting the consummation of the Transactions.
5.5. If this Agreement is terminated prior to Completion in accordance with Clause 5.4 above,
(i) this Agreement shall become void and of no further force and effect; provided, however, that the provisions of this Clause 5.5 and Clauses 1 (Definitions and Interpretation), 11 (Announcements and Confidentiality), 12 (Notices), 13 (Governing Law, Disputes and Jurisdiction), 14.1 (Entire Agreement), 14.6 (Variation), 14.7 (No Assignment), 14.8 (Waiver), 14.9 (Severability), 14.10 (Supersession) and 14.11 (Expenses) shall survive the termination of this Agreement indefinitely and that nothing herein shall relieve any Party from any liability for fraud or any breach of the provisions of this Agreement prior to such termination; and
(ii) if applicable, the Observer shall no longer be entitled to attend the meetings of the Board (or any committee thereof) and the nominees of the Purchaser appointed on the Board in accordance with Clause 6.2 shall resign with immediate effect.
Appears in 1 contract
Sources: Agreement for Sale of Shares (Qiao Xing Universal Telephone Inc)
Completion. 5.1. Subject to 3.1 Completion of the sale and purchase of the Sale Shares shall take place on or before the second business day after the conditions set out in Clauses 3.1, Clause 1.1 have been fulfilled or such other date as the parties hereto may mutually agree in writing provided that on completion date the conditions set out in Clause 1.1 shall have been fulfilled (the "Completion Date").
3.2 Completion of the sale and 3.3, Completion purchase of the Sale Shares shall take place on in the Completion Dateoffice of the Vendor's principal place of business or elsewhere as may be mutually agreed in writing by the parties hereto when the following business will be simultaneously transacted.
5.2. (a) The obligations of each of Purchaser shall deliver to the Parties under Clause 5.3 below are interdependent of each other. The Completion shall not occur unless all of the obligations specified in Clause 5.3, have been simultaneously complied with and are fully effective.
5.3. On the Completion DateVendor:
(i) Subject to deductions pursuant to Clause 4.4, banker's draft for HK$244,328,000 which together with the Purchaser shall remit Deposit being 50% of the Purchase Consideration (in immediately available funds) to purchase consideration of the Seller’s Bank Account.Sale Shares; and
(ii) The Seller shall (a) provide to its Depository Participant duly executed DP Instructions in a promissory note of HK$321,760,000 being the prescribed form for balance of the transfer purchase consideration of the Sale Shares to the Demat Account be issued in favour of the Purchaser (details of which shall be provided to the Seller in writing as soon as practicable after the Execution Date); (b) procure its Depository Participant to duly acknowledge such DP Instructions; (c) deliver a copy of such acknowledgement to the Purchaser; Vendor and (d) use best endeavours to procure credit of secured by the Sale Shares to the Demat Account and guaranteed by ▇▇▇▇ ▇., such promissory note shall carry an interest rate of the Purchaser7 1/2% per annum for a period of six (6) months.
(iii) The Seller shall, to the extent it is able to do so through exercise of its voting rights, procure that a Board meeting is held at which the following business shall be transacted:
(a) the appointment of directors nominated by the Purchaser on the Board shall be approved; and
(b) an extra-ordinary general meeting of the shareholders of the Company to approve the matters set out in Clause 5.3(iii)(a) and the amendment of the Articles of Association The Vendor shall be convened.
5.4. This Agreement may be terminated on or prior deliver to the Completion Date as followsPurchaser or its nominee(s) the following:
(i) By the mutual written consent sold note(s) (if any, in so far as relevant) and instrument(s) of transfer in favor of the Purchaser and/or its nominee(s) in respect of the Sale Shares and shares of the Seller.Subsidiaries not registered in the name of the Company all duly executed by the Vendor or its nominee(s);
(ii) By original certificates in respect of the Seller, upon written notice to the Purchaser, if the conditions set out in Clauses 3.1 and 3.3 have not been satisfied Sale Shares (or satisfied subject only to Completion where applicable) or waived (where applicable) on or before 270 (two hundred seventy) days from the Execution Date or such later date as may be mutually agreed between the Parties in writing (“Long Stop Date”); provided that the Seller shall not be entitled to terminate this Agreement pursuant to this Clause 5.4(ii) if Seller’s breach of this Agreement has prevented or materially delayed the consummation of the Transactions (which term for the purposes of this Clause 5.4(ii) shall not include the Financingconfirmation by CCASS);
(iii) By the Purchaser, upon written notice to the Seller, if the conditions set out a banker's draft drawn in Clauses 3.2 and 3.3 have not been satisfied (or satisfied subject only to Completion where applicable) or waived (where applicable) on or before the Long Stop Date; provided that the Purchaser shall not be entitled to terminate this Agreement pursuant to this Clause 5.4(iii) if Purchaser’s breach of this Agreement has prevented or materially delayed the consummation favor of the Transactions.Hong Kong SAR Government for half share of the estimated ad valorem stamp duty payable under the Stamp Duty Ordinance in respect of the sold note(s) and instrument(s) of transfer in respect of the Sale Shares;
(iv) By the Seller (if the Seller is not in material breach such other documents as may be required to give a good and effective transfer of the Seller Warranties, covenants or agreements under this Agreement so as to cause any of the conditions set forth in Clause 3.2 and/or 3.3(i) not to be satisfied), upon written notice title to the Purchaser, if there has been a material inaccuracy of any statement or warranty, or any unremedied material breach of a covenant or other agreement, of Sale Shares to the Purchaser contained in this Agreement, which violation, breach or inaccuracy would cause any of and/or its nominee(s) and to enable it/them to become the conditions set forth in Clause 3.1 and/or 3.3 not to be satisfied as of the Completion Date, and such violation, breach or inaccuracy has not been waived by the Seller or cured by the Purchaser within 20 (twentyregistered holder(s) Business Days after receipt by the Purchaser of written notice thereof from the Seller or is not reasonably capable of being cured prior to the Long Stop Date.thereof; and
(v) By the Purchaser (if the Purchaser is not in material breach all statutory books, certificates of incorporation, common seals, records and books of accounts of the Purchaser Warranties, covenants or agreements under this Agreement so as to cause any of Company and its subsidiaries (the conditions set forth in Clause 3.1 and/or 3.3 not to be satisfied"Group"), upon written notice to the Seller, if there has been a material inaccuracy of any statement or warranty, or any unremedied material breach of a covenant or other agreement, of the Seller contained in this Agreement, which violation, breach or inaccuracy would cause any of the conditions set forth in Clauses 3.2 and/or 3.3(i) not to be satisfied as of the Completion Date, and such violation, breach or inaccuracy has not been waived by the Purchaser or cured by the Seller within 20 (twenty) Business Days after receipt by the Seller of written notice thereof from the Purchaser or is not reasonably capable of being cured prior to the Long Stop Date.
(vic) By the Seller or the Purchaser, upon written notice to the other, if The Vendor will cause a court of competent jurisdiction or any other Governmental Authority shall have issued a final, non-appealable order preventing or otherwise prohibiting the consummation meeting of the Transactions.
5.5. If this Agreement is terminated prior board of directors of each of the Company and the subsidiaries (if applicable) to Completion in accordance with Clause 5.4 above,be held at which resolutions shall be passed to:
(i) this Agreement shall become void appoint such persons as the Purchaser may nominate as directors and of no further force and effect; provided, however, that the provisions of this Clause 5.5 and Clauses 1 (Definitions and Interpretation), 11 (Announcements and Confidentiality), 12 (Notices), 13 (Governing Law, Disputes and Jurisdiction), 14.1 (Entire Agreement), 14.6 (Variation), 14.7 (No Assignment), 14.8 (Waiver), 14.9 (Severability), 14.10 (Supersession) and 14.11 (Expenses) shall survive the termination of this Agreement indefinitely and that nothing herein shall relieve any Party from any liability for fraud or any breach secretaries of the provisions Company and the subsidiaries (if applicable) all to take effect from the Completion Date;
(ii) amend all banking authorisations, instructions and mandates of this Agreement prior to the Group in such terminationmanner as the Purchaser may require, with effect from the effective date of the changes under sub-paragraph (i) above; and
(iiiii) if applicable, the Observer shall no longer be entitled approve (subject to attend the meetings stamping) such transfers of the Board (or any committee thereof) Sale Shares and shares of the Subsidiaries and the nominees registration of the Purchaser appointed on relevant shares in the Board name of the Vendor or its nominee(s) as contemplated in accordance with Clause 6.2 shall resign with immediate effect3.2(b)(i).
Appears in 1 contract
Sources: Agreement for the Sale and Purchase of Shares (B2b LTD)
Completion. 5.1. 4.1 Subject to the conditions set out in Clauses 3.1, 3.2 and 3.3fulfilment or waiver of the Conditions Precedent, Completion shall take place at Hong Kong on Completion Date or at such other time and/or place as the Issuer and the Subscriber may agree in writing. At Completion, all (but not only some) of the events detailed in this Clause 4 shall occur.
4.2 On Completion, the Issuer shall deliver to the Subscriber:
(A) a certified copy of the resolutions of the Board approving, amongst other things, (i) the execution of this Agreement and the Instrument; (ii) the allotment and issue of the Bonds to the Subscriber in accordance with this Agreement and the Instrument and the transactions contemplated under this Agreement; (iii) upon Completion taking place, the entry of the name of the Subscriber into the Register of Bondholders as holder of the Bonds; the allotment and issue of the Conversion Shares upon exercise of the Conversion Rights in accordance with the Conditions;
(B) a copy of the letter from the Stock Exchange confirming that approval has been granted by the Stock Exchange for the listing of and permission to deal in the Shares to be issued upon the exercise of Conversion Rights attaching to the Bonds pursuant to the Conditions;
(C) a legal opinion, in form and substance reasonably satisfactory to the Subscriber, dated the Completion Date, of the Issuer’s counsels addressed to the Subscriber as to Bermuda law in relation to (i) the due and proper execution of this Agreement by the Issuer, (ii) its due incorporation, valid existence and good standing of the Issuer (iii) the enforceability of this Agreement against the Issuer, and (iv) the due execution, validity and enforceability of the Bonds;
(D) a legal opinion as to Hong Kong law in relation to (i) the due incorporation, (ii) valid existence of all subsidiaries incorporated in Hong Kong, (iii) the non-contravention of the Hong Kong laws and the Listing Rules in respect of the transaction contemplated under this Agreement;
(E) a legal opinion as to the laws of the PRC in relation to the due incorporation and valid existence of all subsidiaries established in the PRC;
(F) a certified copy of the Instrument duly executed by the Issuer;
(G) the Bonds by delivering a certificate, duly executed, representing the aggregate principal amount of the Bonds (together with the Conditions) in the form set out in the Instrument in the name of the Subscriber; and
(H) a completion certificate dated the Completion Date and addressed to the Subscriber from the Issuer, signed by a director and substantially in the form set out in Schedule 3.
4.3 On Completion, the Subscriber shall make the payment of the Bond Consideration (less any costs and expenses payable under Clause 8(H) to the Subscriber) by transfer in Hong Kong dollars for value same day to the bank account of the Issuer, the details of which shall be notified by the Issuer to the Subscriber no less than five (5) Business Days prior to the Completion Date.
5.2. The 4.4 If in any respect the obligations of each of the Parties under Clause 5.3 below Issuer or Subscriber are interdependent of each other. The Completion shall not occur unless all of the obligations specified in Clause 5.3, have been simultaneously complied with and are fully effective.
5.3. On on the Completion DateDate (whether such failure by the defaulting party amounts to a repudiatory breach or not), the party not in default may:
(iA) Subject defer Completion to deductions pursuant to Clause 4.4, the Purchaser shall remit the Purchase Consideration a date not more than fifteen (in immediately available funds) to the Seller’s Bank Account.
(ii) The Seller shall (a) provide to its Depository Participant duly executed DP Instructions in the prescribed form for the transfer of the Sale Shares to the Demat Account of the Purchaser (details of which shall be provided to the Seller in writing as soon as practicable after the Execution Date); (b) procure its Depository Participant to duly acknowledge such DP Instructions; (c) deliver a copy of such acknowledgement to the Purchaser; and (d) use best endeavours to procure credit of the Sale Shares to the Demat Account of the Purchaser.
(iii) The Seller shall, to the extent it is able to do so through exercise of its voting rights, procure that a Board meeting is held at which the following business shall be transacted:
(a) the appointment of directors nominated by the Purchaser on the Board shall be approved; and
(b) an extra-ordinary general meeting of the shareholders of the Company to approve the matters set out in Clause 5.3(iii)(a) and the amendment of the Articles of Association shall be convened.
5.4. This Agreement may be terminated on or prior to the Completion Date as follows:
(i) By the mutual written consent of the Purchaser and the Seller.
(ii) By the Seller, upon written notice to the Purchaser, if the conditions set out in Clauses 3.1 and 3.3 have not been satisfied (or satisfied subject only to Completion where applicable) or waived (where applicable) on or before 270 (two hundred seventy) days from the Execution Date or such later date as may be mutually agreed between the Parties in writing (“Long Stop Date”); provided that the Seller shall not be entitled to terminate this Agreement pursuant to this Clause 5.4(ii) if Seller’s breach of this Agreement has prevented or materially delayed the consummation of the Transactions (which term for the purposes of this Clause 5.4(ii) shall not include the Financing);
(iii) By the Purchaser, upon written notice to the Seller, if the conditions set out in Clauses 3.2 and 3.3 have not been satisfied (or satisfied subject only to Completion where applicable) or waived (where applicable) on or before the Long Stop Date; provided that the Purchaser shall not be entitled to terminate this Agreement pursuant to this Clause 5.4(iii) if Purchaser’s breach of this Agreement has prevented or materially delayed the consummation of the Transactions.
(iv) By the Seller (if the Seller is not in material breach of the Seller Warranties, covenants or agreements under this Agreement so as to cause any of the conditions set forth in Clause 3.2 and/or 3.3(i) not to be satisfied), upon written notice to the Purchaser, if there has been a material inaccuracy of any statement or warranty, or any unremedied material breach of a covenant or other agreement, of the Purchaser contained in this Agreement, which violation, breach or inaccuracy would cause any of the conditions set forth in Clause 3.1 and/or 3.3 not to be satisfied as of the Completion Date, and such violation, breach or inaccuracy has not been waived by the Seller or cured by the Purchaser within 20 (twenty15) Business Days after receipt by the Purchaser of written notice thereof from the Seller or is not reasonably capable of being cured prior to the Long Stop Date.
(v) By the Purchaser (if the Purchaser is not in material breach of the Purchaser Warranties, covenants or agreements under this Agreement so as to cause any of the conditions set forth in Clause 3.1 and/or 3.3 not to be satisfied), upon written notice to the Seller, if there has been a material inaccuracy of any statement or warranty, or any unremedied material breach of a covenant or other agreement, of the Seller contained in this Agreement, which violation, breach or inaccuracy would cause any of the conditions set forth in Clauses 3.2 and/or 3.3(i) not to be satisfied as of the Completion Date, Date (and such violation, breach or inaccuracy has not been waived by the Purchaser or cured by the Seller within 20 (twenty) Business Days after receipt by the Seller of written notice thereof from the Purchaser or is not reasonably capable of being cured prior to the Long Stop Date.
(vi) By the Seller or the Purchaser, upon written notice to the other, if a court of competent jurisdiction or any other Governmental Authority shall have issued a final, non-appealable order preventing or otherwise prohibiting the consummation of the Transactions.
5.5. If this Agreement is terminated prior to Completion in accordance with Clause 5.4 above,
(i) this Agreement shall become void and of no further force and effect; provided, however, so that the provisions of this Clause 5.5 and Clauses 1 (Definitions and Interpretation4.4, apart from this Clause 4.4(A), 11 (Announcements and Confidentialityshall apply to Completion as so deferred), 12 (Notices), 13 (Governing Law, Disputes and Jurisdiction), 14.1 (Entire Agreement), 14.6 (Variation), 14.7 (No Assignment), 14.8 (Waiver), 14.9 (Severability), 14.10 (Supersession) and 14.11 (Expenses) shall survive the termination of this Agreement indefinitely and that nothing herein shall relieve any Party from any liability for fraud or any breach of the provisions of this Agreement prior to such termination; andor
(iiB) if applicable, the Observer shall no longer be entitled proceed to attend the meetings of the Board Completion so far as practicable (or any committee thereofwithout prejudice to its rights hereunder); or
(C) and the nominees of the Purchaser appointed on the Board in accordance with Clause 6.2 shall resign with immediate effectrescind this Agreement.
Appears in 1 contract
Sources: Subscription Agreement
Completion. 5.1. 5.1 Subject to the conditions all Conditions set out in Clauses 3.1Clause 4.1 being satisfied (or waived, 3.2 and 3.3if applicable), Completion shall take place at 5:00 p.m. on the Completion Date, or such later time or date as the Vendor and the Purchaser may agree.
5.2. The obligations of each 5.2 At the Completion, the Vendor shall deliver or cause to be delivered to the Purchaser:
(a) a duly executed transfer instruction in respect of the Parties under Clause 5.3 below are interdependent of each other. The Completion shall not occur unless all Sale Shares in favour of the obligations specified in Clause 5.3, have been simultaneously complied with Purchaser (or its nominees) containing all the Vendor’s bank contacts and are fully effective.settlement details;
5.3. On (b) such other documents as may be required to give to the Completion DatePurchaser good title to the Sale Shares and to enable the Purchaser or its nominees to become the registered holders thereof (if necessary); and
(c) a copy of the minutes of the board meeting or directors’ resolutions of the Vendor:
(i) Subject to deductions pursuant to Clause 4.4, approving the Purchaser shall remit the Purchase Consideration (execution of this Agreement and such other documents in immediately available funds) to the Seller’s Bank Account.connection therewith;
(ii) The Seller shall approving the subscription of the Consideration Shares;
(iii) authorising a director or directors or any person or persons named in such resolutions to follow up on, or participate in, the negotiation, finalisation of the terms, execution (including the affixation of common seal) of and giving effect to this Agreement and such other documents in connection therewith.
5.3 At the Completion, the Purchaser shall:
(a) provide issue and allot to its Depository Participant duly executed DP Instructions in the prescribed form Vendor the Consideration Shares for the transfer of Consideration in accordance with Clause 3.1 credited as fully paid and shall rank pari passu amongst themselves and all Listco Shares in issue at the Sale Shares to the Demat Account of the Purchaser (details of which shall be provided to the Seller Completion Date in writing as soon as practicable after the Execution Date); all respects;
(b) promptly procure its Depository Participant share registrars to duly acknowledge register the Vendor (or its nominee) as member of the Purchaser, and cause:-
(i) the share certificate(s) for the Consideration Shares to be delivered to the depository for HKSCC Nominees Limited for immediate credit to such DP InstructionsCCASS participants’ accounts or investor participants’ accounts as shall be notified by the Vendor to the Purchaser; or
(ii) failing the notification as referred to in paragraph (i) above, the share certificate(s) to be delivered physically to the Vendor in respect of the Consideration Shares in the name(s) of the Vendor (or such Associate(s) as may be nominated by the Vendor), each in such denomination as shall be notified by the Vendor to the Purchaser or, failing such notification, one (1) share certificate to the Vendor in respect of all the Consideration Shares to be issued to the Vendor; and
(c) deliver a copy of the minutes of the board meeting or directors’ resolutions of the Purchaser:
(i) approving the execution of this Agreement and such acknowledgement other documents in connection therewith;
(ii) authorising a director or directors or any person or persons named in such resolutions to follow up on, or participate in, the negotiation, finalisation of the terms, execution (including the affixation of common seal) of and giving effect to this Agreement and such other documents in connection therewith.
5.4 Without prejudice to any other remedies available to the Purchaser; and (d) use best endeavours to procure credit , if in any respect the provisions of Clause 5.2 are not complied with by the Sale Shares to Vendor on the Demat Account of Completion Date, the Purchaser.
(iii) The Seller shall, to the extent it is able to do so through exercise of its voting rights, procure that a Board meeting is held at which the following business shall be transactedPurchaser may:
(a) defer the appointment of directors nominated by the Purchaser on the Board shall be approved; and
(b) an extra-ordinary general meeting of the shareholders of the Company Completion to approve the matters set out in Clause 5.3(iii)(a) and the amendment of the Articles of Association shall be convened.
5.4. This Agreement may be terminated on or prior to a date not more than 28 days after the Completion Date as follows:
(i) By the mutual written consent of the Purchaser and the Seller.
(ii) By the Seller, upon written notice to the Purchaser, if the conditions set out in Clauses 3.1 and 3.3 have not been satisfied (or satisfied subject only to Completion where applicable) or waived (where applicable) on or before 270 (two hundred seventy) days from the Execution Date or such later date as may be mutually agreed between the Parties in writing (“Long Stop Date”); provided that the Seller shall not be entitled to terminate this Agreement pursuant to this Clause 5.4(ii) if Seller’s breach of this Agreement has prevented or materially delayed the consummation of the Transactions (which term for the purposes of this Clause 5.4(ii) shall not include the Financing);
(iii) By the Purchaser, upon written notice to the Seller, if the conditions set out in Clauses 3.2 and 3.3 have not been satisfied (or satisfied subject only to Completion where applicable) or waived (where applicable) on or before the Long Stop Date; provided that the Purchaser shall not be entitled to terminate this Agreement pursuant to this Clause 5.4(iii) if Purchaser’s breach of this Agreement has prevented or materially delayed the consummation of the Transactions.
(iv) By the Seller (if the Seller is not in material breach of the Seller Warranties, covenants or agreements under this Agreement so as to cause any of the conditions set forth in Clause 3.2 and/or 3.3(i) not to be satisfied), upon written notice to the Purchaser, if there has been a material inaccuracy of any statement or warranty, or any unremedied material breach of a covenant or other agreement, of the Purchaser contained in this Agreement, which violation, breach or inaccuracy would cause any of the conditions set forth in Clause 3.1 and/or 3.3 not to be satisfied as of the Completion Date, and such violation, breach or inaccuracy has not been waived by the Seller or cured by the Purchaser within 20 (twenty) Business Days after receipt by the Purchaser of written notice thereof from the Seller or is not reasonably capable of being cured prior to the Long Stop Date.
(v) By the Purchaser (if the Purchaser is not in material breach of the Purchaser Warranties, covenants or agreements under this Agreement so as to cause any of the conditions set forth in Clause 3.1 and/or 3.3 not to be satisfied), upon written notice to the Seller, if there has been a material inaccuracy of any statement or warranty, or any unremedied material breach of a covenant or other agreement, of the Seller contained in this Agreement, which violation, breach or inaccuracy would cause any of the conditions set forth in Clauses 3.2 and/or 3.3(i) not to be satisfied as of the Completion Date, and such violation, breach or inaccuracy has not been waived by the Purchaser or cured by the Seller within 20 (twenty) Business Days after receipt by the Seller of written notice thereof from the Purchaser or is not reasonably capable of being cured prior to the Long Stop Date.
(vi) By the Seller or the Purchaser, upon written notice to the other, if a court of competent jurisdiction or any other Governmental Authority shall have issued a final, non-appealable order preventing or otherwise prohibiting the consummation of the Transactions.
5.5. If this Agreement is terminated prior to Completion in accordance with Clause 5.4 above,
(i) this Agreement shall become void and of no further force and effect; provided, however, that the provisions of this Clause 5.5 and Clauses 1 5.4, apart from this sub- paragraph (Definitions and Interpretationa), 11 (Announcements and Confidentialityshall apply to the Completion as so deferred), 12 (Notices), 13 (Governing Law, Disputes and Jurisdiction), 14.1 (Entire Agreement), 14.6 (Variation), 14.7 (No Assignment), 14.8 (Waiver), 14.9 (Severability), 14.10 (Supersession) and 14.11 (Expenses) shall survive the termination of this Agreement indefinitely and that nothing herein shall relieve any Party from any liability for fraud or any breach of the provisions of this Agreement prior to such termination; andor
(iib) if applicable, proceed to the Observer shall no longer be entitled Completion so far as practicable (without prejudice to attend the meetings of the Board its rights hereunder); or
(or any committee thereofc) and the nominees of the Purchaser appointed on the Board in accordance with Clause 6.2 shall resign with immediate effectrescind this Agreement.
Appears in 1 contract
Sources: Sale and Purchase Agreement
Completion. 5.1. Subject to 7.1 The sale and purchase of the Sale Shares shall be completed at the registered office of the Vendor (or such other venue as the parties may otherwise agree) at 11:00 a.m. (Hong Kong time) on the fourth Business Day after all the conditions set out in Clause 4.1 have either been fulfilled or waived in accordance with Clause 4 (or such other date and time as may be agreed by the Parties) (except the conditions set out in Clauses 3.1, 3.2 4.1(k) and 3.3, Completion shall take place on the Completion Date.
5.2. The obligations of each of the Parties under Clause 5.3 below are interdependent of each other. The Completion shall not occur unless all of the obligations specified in Clause 5.3, have been simultaneously complied with and are fully effective.
5.3. On the Completion Date:
(i1) Subject to deductions pursuant to Clause 4.4, the Purchaser shall remit the Purchase Consideration (in immediately available funds) to the Seller’s Bank Account.
(ii) The Seller shall (a) provide to its Depository Participant duly executed DP Instructions in the prescribed form for the transfer of the Sale Shares to the Demat Account of the Purchaser (details of which shall be provided to the Seller in writing as soon as practicable after the Execution Date); fulfilled simultaneously upon Completion) when all (bbut not part only) procure its Depository Participant to duly acknowledge such DP Instructions; (c) deliver a copy of such acknowledgement to the Purchaser; and (d) use best endeavours to procure credit of the Sale Shares to the Demat Account of the Purchaser.
(iii) The Seller shall, to the extent it is able to do so through exercise of its voting rights, procure that a Board meeting is held at which the following business shall be will be, or will have been, transacted:
(a) the appointment of directors nominated by the Purchaser on the Board Vendor shall be approved; and
(b) an extra-ordinary general meeting of the shareholders of the Company to approve the matters set out in Clause 5.3(iii)(a) and the amendment of the Articles of Association shall be convened.
5.4. This Agreement may be terminated on or prior deliver to the Completion Date as followsPurchaser:
(i) By instrument of transfer in respect of the mutual written consent Sale Shares duly executed by or on behalf of the Vendor in favour of the Purchaser and or a wholly-owned subsidiary of the Seller.Purchaser (as the Purchaser may direct);
(ii) By the Selleroriginal share certificates for all the Sale Shares for cancellation;
(iii) a certified true copy or certified extracts of the resolutions of the board of directors of the Vendor (and, upon if required under the laws of the British Virgin Islands, resolutions of sole shareholder or shareholders of the Vendor) approving this Agreement and the transactions contemplated herein;
(iv) a certified true copy or certified extracts of the resolutions of the board of directors of the Company approving the transfer of the Sale Shares mentioned in Clause 7.1(a)(i) (subject to execution of the instrument of transfer by the transferee) and the issue of new certificates for the Sale Shares in the name of the transferee;
(v) application by the Vendor (or such person as it may direct) to subscribe for the Consideration Shares;
(vi) a counterpart of the Facility Agreement duly executed by the Guarantor;
(vii) a certified true copy or certified extracts of the resolutions of the board of directors of the Guarantor approving this Agreement and the transactions contemplated herein;
(viii) all such other documents as may reasonably be required to enable the Purchaser and/or its nominee to be registered as holder(s) of the Sale Shares;
(b) the Purchaser shall:
(i) execute (or procure a wholly-owned subsidiary of the Purchaser to execute) the instrument of transfer in respect of the Sale Shares;
(ii) at or before 12:00 noon on the Business Day before the expected date of Completion, allot and issue (credited as fully paid) the Consideration Shares to such person or persons as the Vendor may direct (by way of a written notice issued by the Vendor and delivered to the PurchaserPurchaser not later than 11:00 a.m. on the date which is one Business Day before the expected date of Completion), if the conditions set out in Clauses 3.1 and 3.3 have not been satisfied (or satisfied subject only to Completion where applicable) or waived (where applicable) on or before 270 (two hundred seventy) days from the Execution Date or such later date as may be mutually agreed between the Parties in writing (“Long Stop Date”); provided procure that the Seller shall not be entitled to terminate this Agreement pursuant to this Clause 5.4(iiname(s) if Seller’s breach of this Agreement has prevented or materially delayed the consummation of the Transactions person or persons (which term for including, where appropriate, HKSCC Nominees Limited) so notified by the purposes Vendor shall be entered in the register of this Clause 5.4(ii) shall not include members of the FinancingPurchaser accordingly (without payment of any registration fee);
(iii) By allot and issue (credited as fully paid) the Purchaser, upon Consideration Convertible Note to the Vendor (or another subsidiary of HWL as the Vendor may direct (by way of a written notice issued by the Vendor and delivered to the Seller, if the conditions set out in Clauses 3.2 and 3.3 have not been satisfied (or satisfied subject only to Completion where applicable) or waived (where applicable) on or Purchaser at least one Business Day before the Long Stop Date; provided that the Purchaser shall not be entitled to terminate this Agreement pursuant to this Clause 5.4(iii) if Purchaser’s breach expected date of this Agreement has prevented or materially delayed the consummation of the Transactions.Completion));
(iv) By deliver to the Seller Vendor:
(A) a certified true copy of the approval from the Stock Exchange granting listing of and permission to deal in the Consideration Shares (if not already delivered before Completion);
(B) at or before 2:00 p.m. on the Seller is not in material breach Business Day before the expected date of Completion, a certified true copy of the Seller Warranties, covenants or agreements under this Agreement so as to cause any resolutions of the conditions set forth in Clause 3.2 and/or 3.3(i) not to be satisfied), upon written notice to the Purchaser, if there has been a material inaccuracy board of any statement or warranty, or any unremedied material breach of a covenant or other agreement, directors of the Purchaser contained in approving this Agreement, which violation, breach or inaccuracy would cause any Agreement and the issue and allotment of the conditions set forth Consideration Shares to the Vendor (or as it may direct);
(C) in Clause 3.1 and/or 3.3 accordance with the written directions of the Vendor (issued by the Vendor and to the Purchaser not later than 11.00 a.m. on the date which is one Business Day before the expected date of Completion), (1) share certificates for such number of the Consideration Shares as so directed in the name of the Vendor (or as it may direct) and (2) share certificates for such number of the Consideration Shares as so directed in the name of HKSCC Nominees Limited to be satisfied as delivered through the facilities of the Completion Date, and HKSCC for credit to such violation, breach or inaccuracy has not been waived by the Seller or cured by the Purchaser within 20 (twenty) Business Days after receipt by the Purchaser of written notice thereof from the Seller or is not reasonably capable of being cured prior CCASS stock accounts pursuant to the Long Stop Date.
(v) By below;
(D) at or before 2:00 p.m. on the Purchaser Business Day before the expected date of Completion, a copy of the Purchaser's written instruction to its branch share registrars in Hong Kong to update the register of members to reflect the issue of the Consideration Shares, and evidence that each of the Vendor (or the person(s) nominated by it) and/or HKSCC Nominees Limited (if so directed by the Purchaser is not in material breach Vendor pursuant to (C) above) has been registered as a shareholder of the Purchaser Warranties, covenants or agreements under this Agreement so as to cause any such number of the conditions set forth in Clause 3.1 and/or 3.3 not to be satisfied), upon written notice to the Seller, if there has been a material inaccuracy of any statement or warranty, or any unremedied material breach of a covenant or other agreement, of the Seller contained in this Agreement, which violation, breach or inaccuracy would cause any of the conditions set forth in Clauses 3.2 and/or 3.3(i) not to be satisfied Consideration Shares as of the Completion Date, and such violation, breach or inaccuracy has not been waived directed by the Purchaser or cured by the Seller within 20 Vendor under (twentyC) Business Days after receipt by the Seller of written notice thereof from the Purchaser or is not reasonably capable of being cured prior to the Long Stop Date.
(vi) By the Seller or the Purchaser, upon written notice to the other, if a court of competent jurisdiction or any other Governmental Authority shall have issued a final, non-appealable order preventing or otherwise prohibiting the consummation of the Transactions.
5.5. If this Agreement is terminated prior to Completion in accordance with Clause 5.4 above,
(i) this Agreement shall become void and of no further force and effect; provided, however, that the provisions of this Clause 5.5 and Clauses 1 (Definitions and Interpretation), 11 (Announcements and Confidentiality), 12 (Notices), 13 (Governing Law, Disputes and Jurisdiction), 14.1 (Entire Agreement), 14.6 (Variation), 14.7 (No Assignment), 14.8 (Waiver), 14.9 (Severability), 14.10 (Supersession) and 14.11 (Expenses) shall survive the termination of this Agreement indefinitely and that nothing herein shall relieve any Party from any liability for fraud or any breach of the provisions of this Agreement prior to such termination; and
(ii) if applicable, the Observer shall no longer be entitled to attend the meetings of the Board (or any committee thereof) and the nominees of the Purchaser appointed on the Board in accordance with Clause 6.2 shall resign with immediate effect.;
Appears in 1 contract
Completion. 5.14.1. Subject to the conditions set out in Clauses 3.1, 3.2 and 3.3, Completion shall take place on the Completion Date at the offices of the Purchaser's Solicitors.
4.2. On Completion the Seller shall deliver to the Purchaser, at the principal office of the Business, or (if so requested by the Purchaser) make available to the Purchaser such of the Sale Assets as are capable of being transferred by delivery, together with:
4.2.1. the Business Records;
4.2.2. all Business Information;
4.2.3. copies of all National Insurance and PAYE records completed and up-to-date;
4.2.4. the original documents in the possession or control of the Seller in respect of the Contracts; and
4.2.5. such documents as are reasonably required by the Purchaser to complete the sale and purchase of the Sale Assets and vest title to the Sale Assets in the Purchaser.
4.3. On Completion Mr Nahab shall deliver to the Pu▇▇▇▇▇▇▇'s Solicitors the Service Agreement duly executed by Mr Nahab.
4.4. If all or any o▇ ▇▇▇ ▇▇ansactions set out in Clauses 4.2 and 4..3 do not take place as provided, the Purchaser may promptly rescind this Agreement without prejudice to any other remedy it may have.
4.5. The Purchaser shall then deliver to Mr Nahab the Service Agreement d▇▇▇ executed by it.
4.6. Rights in and title to the Sale Assets shall pass to the Purchaser on the Completion Date.
5.24.7. The obligations of each of the Parties under Clause 5.3 below are interdependent of each other. The Completion shall not occur unless all of the obligations specified in Clause 5.3, have been simultaneously complied with and are fully effective.
5.3. On the Completion Date:
(i) Subject to deductions pursuant to Clause 4.4, 9 (Contracts and Third Party Consents) the Purchaser shall remit the Purchase Consideration (in immediately available funds) to the Seller’s Bank Account.
(ii) The Seller shall (a) provide to its Depository Participant duly executed DP Instructions in the prescribed form for the transfer of the Sale Shares to the Demat Account of the Purchaser (details of which shall be provided to the Seller in writing at Completion or as soon as practicable after the Execution Date); (b) procure its Depository Participant to duly acknowledge such DP Instructions; (c) Completion deliver a copy of such acknowledgement to the Purchaser; Purchaser all transfers, assignments and novations of those Sale Assets which are not capable of being transferred by delivery, together with all relevant documents of title.
4.8. The Seller shall (d) and shall use best its reasonable endeavours to procure credit any third party as is necessary to) after the date of the Sale Shares to the Demat Account of the Purchaser.
(iii) The Seller shall, to the extent it is able to do so through exercise of its voting rights, procure that a Board meeting is held at which the following business shall be transacted:
(a) the appointment of directors nominated by the Purchaser on the Board shall be approved; and
(b) an extra-ordinary general meeting of the shareholders of the Company to approve the matters set out in Clause 5.3(iii)(a) and the amendment of the Articles of Association shall be convened.
5.4. This Agreement may be terminated on or prior to the Completion Date as follows:
(i) By the mutual written consent of the Purchaser and the Seller.
(ii) By the Sellerthis Agreement, upon written notice to reasonable request by the Purchaser, if execute and perform any further deeds, documents and acts so requested to give full effect to the conditions set out in Clauses 3.1 and 3.3 have not been satisfied (or satisfied subject only to Completion where applicable) or waived (where applicable) on or before 270 (two hundred seventy) days from the Execution Date or such later date as may be mutually agreed between the Parties in writing (“Long Stop Date”); provided that the Seller shall not be entitled to terminate this Agreement pursuant to this Clause 5.4(ii) if Seller’s breach terms of this Agreement has prevented or materially delayed including (without limitation) to vest in and assure to the consummation of Purchaser whatever right, title and interest the Transactions (Seller may have in the Sale Assets and pending which term shall hold such Sale Assets on trust for the Purchaser absolutely and will dispose, transfer and deal with such Sale Assets at such time and in such manner as the Purchaser directs.
4.9. The parties shall upon reasonable request afford to each other and to each party's representatives such access during normal business hours to the statutory and accounting records and all other documents relating to the Business as are in each party's control for the purposes of this Clause 5.4(ii) inspecting and copying the same, and neither party shall not include use any such records, documents or the Financing);
(iii) By the Purchaser, upon written notice to the Seller, if the conditions set out in Clauses 3.2 and 3.3 have not been satisfied (or satisfied subject only to Completion where applicable) or waived (where applicable) on or before the Long Stop Date; provided that the Purchaser shall not be entitled to terminate this Agreement pursuant to this Clause 5.4(iii) if Purchaser’s breach of this Agreement has prevented or materially delayed the consummation of the Transactions.
(iv) By the Seller (if the Seller is not in material breach of the Seller Warranties, covenants or agreements under this Agreement so as to cause any of the conditions set forth in Clause 3.2 and/or 3.3(i) not to be satisfied), upon written notice to the Purchaser, if there has been a material inaccuracy of any statement or warranty, or any unremedied material breach of a covenant or other agreement, of the Purchaser information contained in this Agreementthem for any purpose other than for accounting, which violationaudit and tax purposes. Each party shall keep such records, breach or inaccuracy would cause any of the conditions set forth documents and information in Clause 3.1 and/or 3.3 not to be satisfied as of the Completion Date, and such violation, breach or inaccuracy has not been waived by the Seller or cured by the Purchaser within 20 (twenty) Business Days after receipt by the Purchaser of written notice thereof from the Seller or is not reasonably capable of being cured prior to the Long Stop Datestrict confidence.
(v) By the Purchaser (if the Purchaser is not in material breach of the Purchaser Warranties, covenants or agreements under this Agreement so as to cause any of the conditions set forth in Clause 3.1 and/or 3.3 not to be satisfied), upon written notice to the Seller, if there has been a material inaccuracy of any statement or warranty, or any unremedied material breach of a covenant or other agreement, of the Seller contained in this Agreement, which violation, breach or inaccuracy would cause any of the conditions set forth in Clauses 3.2 and/or 3.3(i) not to be satisfied as of the Completion Date, and such violation, breach or inaccuracy has not been waived by the Purchaser or cured by the Seller within 20 (twenty) Business Days after receipt by the Seller of written notice thereof from the Purchaser or is not reasonably capable of being cured prior to the Long Stop Date.
(vi) By the Seller or the Purchaser, upon written notice to the other, if a court of competent jurisdiction or any other Governmental Authority shall have issued a final, non-appealable order preventing or otherwise prohibiting the consummation of the Transactions.
5.5. If this Agreement is terminated prior to Completion in accordance with Clause 5.4 above,
(i) this Agreement shall become void and of no further force and effect; provided, however, that the provisions of this Clause 5.5 and Clauses 1 (Definitions and Interpretation), 11 (Announcements and Confidentiality), 12 (Notices), 13 (Governing Law, Disputes and Jurisdiction), 14.1 (Entire Agreement), 14.6 (Variation), 14.7 (No Assignment), 14.8 (Waiver), 14.9 (Severability), 14.10 (Supersession) and 14.11 (Expenses) shall survive the termination of this Agreement indefinitely and that nothing herein shall relieve any Party from any liability for fraud or any breach of the provisions of this Agreement prior to such termination; and
(ii) if applicable, the Observer shall no longer be entitled to attend the meetings of the Board (or any committee thereof) and the nominees of the Purchaser appointed on the Board in accordance with Clause 6.2 shall resign with immediate effect.
Appears in 1 contract
Sources: Agreement for the Sale of the Seller's Business and Assets (Dental Medical Diagnostic Systems Inc)
Completion. 5.1. Subject to 5.1 Upon fulfillment of all the conditions set out in Clauses 3.1, Clause 3.2 and 3.3(Conditions), Completion shall take place on the Completion Datedate falling on the third Business Day after the fulfillment of the conditions set out in Clause 3.2 (Conditions), or such other date as the Parties may agree, at such place as the Parties may agree when all the acts and requirements set out in this Clause 5, shall be complied with.
5.2. The obligations 5.2 At Completion, the Vendor shall deliver or cause to be delivered to the Purchaser and/or the Purchaser’s Guarantor (as the case may be):
(a) instrument of each transfer in respect of the Parties under Clause 5.3 below are interdependent of each other. The Completion shall not occur unless all transfer of the obligations specified Sale Shares duly executed by the Vendor in favour of the Purchaser (or its nominee);
(b) original share certificate(s) in respect of the Sale Share;
(c) copy, certified by a director of the Vendor, of resolutions of the board of directors of the Vendor approving this Agreement and the transactions contemplated hereunder and other documents necessary for the purpose of effecting this transaction and authorising a person or persons to execute the same (with seal, where appropriate) for and on its behalf;
(d) copy, certified by a director of the relevant Group Company, respectively, as true and complete, of the resolutions of the board of directors of the relevant Group Company referred to in Clause 5.3, have been simultaneously complied with and are fully effective; and
(e) the Deed of Set-Off duly executed under seal by the Vendor.
5.3. On 5.3 The Vendor shall use its reasonable endeavours to procure a meeting of the Completion Date:
(i) Subject board of directors of the Company to deductions pursuant to Clause 4.4, be held at which resolutions shall be passed for the Purchaser shall remit the Purchase Consideration (in immediately available funds) to the Seller’s Bank Account.
(ii) The Seller shall (a) provide to its Depository Participant duly executed DP Instructions in the prescribed form approval for the transfer of the Sale Shares to the Demat Account Purchaser (or its nominee) and the registration of such transfer, subject to the relevant instrument of transfer being duly presented for registration.
5.4 At Completion, the Purchaser (details of which shall be provided to the Seller in writing as soon as practicable after the Execution Date); (b) procure its Depository Participant to duly acknowledge such DP Instructions; (c) deliver a copy of such acknowledgement to the Purchaser; and (d) use best endeavours to procure credit of the Sale Shares to the Demat Account of the Purchaser.
(iii) The Seller shall, to the extent it is able to do so through exercise of its voting rights, procure that a Board meeting is held at which the following business shall be transacted:
(a) deliver to the appointment Vendor instrument of directors nominated transfer in respect of the Sale Shares duly executed by the Purchaser (or its nominee);
(b) deliver to the Vendor and the Purchaser’s Guarantor the Deed of Set-Off duly executed under seal by the Purchaser;
(c) deliver to the Vendor the Deed of Adherence duly executed under seal by the Purchaser;
(d) deliver to the Vendor the Irrevocable Undertaking duly executed under seal by the Purchaser; and
(e) deliver to the Vendor a copy, certified as true and complete by a director of the Purchaser, of resolutions of the board of directors of the Purchaser approving this Agreement and the transactions contemplated hereunder and other documents necessary for the purpose of effecting this transaction and authorising a person or persons to execute the same (with seal, where appropriate) for and on its behalf.
5.5 At Completion, the Board shall be approvedPurchaser’s Guarantor shall:
(a) deliver to the Vendor and the Purchaser the Deed of Set-Off duly executed by the Purchaser’s Guarantor; and
(b) an extra-ordinary general meeting of deliver to the shareholders of Vendor the Company to approve Irrevocable Undertaking duly executed under seal by the matters set out in Clause 5.3(iii)(a) and the amendment of the Articles of Association shall be convenedPurchaser’s Guarantor.
5.4. This Agreement may 5.6 In the event that the Vendor or the Purchaser shall fail to do anything required to be terminated on done by them under Clauses 5.2, 5.3, 5.4 and/or 5.5, without prejudice to any other right or prior remedy available to the Completion Date Vendor or the Purchaser (as followsthe case may be), the Vendor or the Purchaser (as the case may be) may:
(ia) By defer Completion to a day not more than 28 days after the date fixed for Completion, or upon mutual written consent of by the Vendor and the Purchaser;
(b) proceed to Completion so far as practicable but without prejudice to the Vendor’s or the Purchaser’s right (as the case may be) to the extent that the Vendor or the Purchaser and (as the Seller.
(ii) By the Seller, upon written notice to the Purchaser, if the conditions set out in Clauses 3.1 and 3.3 have not been satisfied (or satisfied subject only to Completion where applicable) or waived (where applicable) on or before 270 (two hundred seventy) days from the Execution Date or such later date as case may be mutually agreed between the Parties in writing (“Long Stop Date”); provided that the Seller shall not be entitled to terminate this Agreement pursuant to this Clause 5.4(ii) if Seller’s breach of this Agreement has prevented or materially delayed the consummation of the Transactions (which term for the purposes of this Clause 5.4(iibe) shall not include the Financing);have complied with their obligations hereunder; or
(iiic) By the Purchaser, upon written notice to the Seller, if the conditions set out in Clauses 3.2 and 3.3 have not been satisfied (or satisfied subject only to Completion where applicable) or waived (where applicable) on or before the Long Stop Date; provided that the Purchaser shall not be entitled to terminate this Agreement pursuant to this Clause 5.4(iii) if Purchaser’s breach of this Agreement has prevented or materially delayed the consummation of the Transactions.
(iv) By the Seller (if the Seller is not in material breach of the Seller Warranties, covenants or agreements under this Agreement so as to cause any of the conditions set forth in Clause 3.2 and/or 3.3(i) not to be satisfied), upon written notice to the Purchaser, if there has been a material inaccuracy of any statement or warranty, or any unremedied material breach of a covenant or other agreement, of the Purchaser contained in this Agreement, upon which violation, breach or inaccuracy would cause any of the conditions set forth in Clause 3.1 and/or 3.3 not to be satisfied as of the Completion Date, and such violation, breach or inaccuracy has not been waived by the Seller or cured by the Purchaser within 20 (twenty) Business Days after receipt by the Purchaser of written notice thereof from the Seller or is not reasonably capable of being cured prior to the Long Stop Date.
(v) By the Purchaser (if the Purchaser is not in material breach of the Purchaser Warranties, covenants or agreements under this Agreement so as to cause any of the conditions set forth in Clause 3.1 and/or 3.3 not to be satisfied), upon written notice to the Seller, if there has been a material inaccuracy of any statement or warranty, or any unremedied material breach of a covenant or other agreement, of the Seller contained in this Agreement, which violation, breach or inaccuracy would cause any of the conditions set forth in Clauses 3.2 and/or 3.3(i) not to be satisfied as of the Completion Date, and such violation, breach or inaccuracy has not been waived by the Purchaser or cured by the Seller within 20 (twenty) Business Days after receipt by the Seller of written notice thereof from the Purchaser or is not reasonably capable of being cured prior to the Long Stop Date.
(vi) By the Seller or the Purchaser, upon written notice to the other, if a court of competent jurisdiction or any other Governmental Authority shall have issued a final, non-appealable order preventing or otherwise prohibiting the consummation of the Transactions.
5.5. If this Agreement is terminated prior to Completion in accordance with Clause 5.4 above,
(i) this Agreement shall become void and cease to be of no further force and effect; provided, however, that the provisions of this Clause 5.5 and any effect except for Clauses 1 6 (Definitions and InterpretationRestriction on Announcements), 11 (Announcements and Confidentiality), 12 (Notices), 13 17 (Costs) and 20 (Governing Law, Disputes Law and Jurisdiction), 14.1 (Entire Agreement), 14.6 (Variation), 14.7 (No Assignment), 14.8 (Waiver), 14.9 (Severability), 14.10 (Supersession) which shall remain in force and 14.11 (Expenses) shall survive the termination save in respect of claims arising out of any antecedent breach of this Agreement indefinitely and that nothing herein shall relieve any Party from any liability for fraud or any breach of the provisions of this Agreement prior to such termination; and
(ii) if applicable, the Observer shall no longer be entitled to attend the meetings of the Board (or any committee thereof) and the nominees of the Purchaser appointed on the Board in accordance with Clause 6.2 shall resign with immediate effectAgreement.
Appears in 1 contract
Completion. 5.1. Subject to the conditions set out in Clauses 3.1, 3.2 and 3.3, 6.1 Completion shall take place at the Amsterdam offices of S▇▇▇▇▇▇ & S▇▇▇▇▇▇ LLP on the Completion Date.
5.26.2 Ultimately at 10.00 a.m. CET on the Completion Date the Purchaser shall pay (or procure the payment of) the Estimated Purchase Price on the Notary's Bank Account. The obligations Notary shall hold such amount for the benefit of the Purchaser until the execution of the Deed of Transfer. Upon execution of the Deed of Transfer, the Notary shall hold (i) the Estimated Purchase Price minus the Escrow Amount, for the benefit of the Seller, and (ii) the Escrow Amount for the benefit of the Escrow Agent.
6.3 At or prior to Completion each Party shall perform, or procure the performance of, each of the Parties under Clause 5.3 below actions and obligations listed in relation to it in Schedule 5 (Completion Actions) in the order in which they are interdependent of each other. The Completion required to be carried out pursuant to that schedule.
6.4 A Party shall not occur unless all of the obligations specified in Clause 5.3, have been simultaneously complied with and are fully effective.
5.3. On the Completion Date:
(i) Subject be obliged to deductions pursuant to Clause 4.4, the Purchaser shall remit the Purchase Consideration (in immediately available funds) to the Seller’s Bank Account.
(ii) The Seller shall (a) provide to its Depository Participant duly executed DP Instructions in the prescribed form for complete the transfer and acceptance of any of the Sale Shares to unless the Demat Account of the Purchaser (details of which shall be provided to the Seller in writing as soon as practicable after the Execution Date); (b) procure its Depository Participant to duly acknowledge such DP Instructions; (c) deliver a copy of such acknowledgement to the Purchaser; and (d) use best endeavours to procure credit of the Sale Shares to the Demat Account of the Purchaserother Parties comply with their obligations under this Agreement.
(iii) The Seller shall, to the extent it is able to do so through exercise of its voting rights, procure that a Board meeting is held at which the following business shall be transacted:
(a) the appointment of directors nominated by the Purchaser on the Board shall be approved; and
(b) an extra-ordinary general meeting of the shareholders of the Company to approve the matters set out in Clause 5.3(iii)(a) and the amendment of the Articles of Association shall be convened.
5.4. This Agreement may be terminated on or prior to the Completion Date as follows:
6.5 If (i) By the mutual written consent of the Purchaser and the Seller.
(ii) By the Seller, upon written notice to the Purchaser, if the conditions set out in Clauses 3.1 and 3.3 have not been satisfied (or satisfied subject only to Completion where applicable) or waived (where applicable) on or before 270 (two hundred seventy) days from the Execution Date or such later date as may be mutually agreed between the Parties in writing (“Long Stop Date”); provided that the Seller shall not be entitled to terminate this Agreement pursuant to this Clause 5.4(ii) if Seller’s breach of this Agreement has prevented or materially delayed the consummation of the Transactions (which term for the purposes of this Clause 5.4(ii) shall not include the Financing);
(iii) By the Purchaser, upon written notice to the Seller, if the conditions set out in Clauses 3.2 and 3.3 have not been satisfied (or satisfied subject only to Completion where applicable) or waived (where applicable) on or before the Long Stop Date; provided that the Purchaser shall not be entitled to terminate this Agreement pursuant to this Clause 5.4(iii) if Purchaser’s breach of this Agreement has prevented or materially delayed the consummation of the Transactions.
(iv) By the Seller (if the Seller is not in material breach of the Seller Warranties, covenants or agreements under this Agreement so as to cause any of the conditions set forth in Clause 3.2 and/or 3.3(i) not to be satisfied), upon written notice to the Purchaser, if there has been a material inaccuracy of any statement or warranty, or any unremedied material breach of a covenant or other agreement, of the Purchaser contained in this Agreement, which violation, breach or inaccuracy would cause any of the conditions set forth in Clause 3.1 and/or 3.3 not to be satisfied as of the Completion Date, and such violation, breach or inaccuracy has not been waived by the Seller or cured by the Purchaser within 20 (twenty) Business Days after receipt by the Purchaser of written notice thereof from the Seller or is not reasonably capable of being cured prior to the Long Stop Date.
(v) By the Purchaser (if the Purchaser is not in material breach of the Purchaser Warranties, covenants or agreements under this Agreement so as to cause any of the conditions set forth in Clause 3.1 and/or 3.3 not to be satisfied), upon written notice to the Seller, if there has been a material inaccuracy of any statement or warranty, or any unremedied material breach of a covenant or other agreement, of the Seller contained in this Agreement, which violation, breach or inaccuracy would cause any of the conditions set forth in Clauses 3.2 and/or 3.3(i) not to be satisfied as of the Completion Date, and such violation, breach or inaccuracy has not been waived by the Purchaser or cured by the Seller within 20 (twenty) Business Days after receipt by the Seller of written notice thereof from the Purchaser or is not reasonably capable of being cured prior to the Long Stop Date.
(vi) By either the Seller or the Purchaser, upon written notice Company or (ii) Purchaser fails to perform any action which it is obliged to perform to effect Completion (including the otherCompletion Actions) within the agreed time frame or, if no specific time frame was agreed, as soon as reasonably possible, the Purchaser (in case of a court failure on the part of competent jurisdiction one of the other Parties) or the Seller (in case of a failure on the part of Purchaser) shall be entitled to, at its sole discretion and in addition to, and without prejudice to, any other Governmental Authority shall have issued a finalrights, non-appealable order preventing claims or otherwise prohibiting the consummation of the Transactions.
5.5. If remedies available under this Agreement or by applicable Law (including its right to claim damages, irrespective whether this Agreement is terminated terminated):
(A) demand from the non-performing Party to perform the relevant action or actions on a day and time to be determined by the other Party;
(B) determine a new date for Completion, which date shall be within 15 days following the date of Completion scheduled before, if any;
(C) demand the non-performing Party fully cooperate to effectuate Completion so far as practicable taking into account the defaults which have occurred; or
(D) terminate this Agreement without any liability on its part, by giving written notice thereof to the non-performing Party, in which case the Surviving Provisions shall continue to apply after termination.
6.6 Prior to Completion, the Company shall provide a certificate ("USRPI Certificate"), dated not more than 30 days prior to Completion in accordance with Clause 5.4 above,
(i) this Agreement shall become void and of no further force and effect; provided, howeverCompletion, that the provisions shares of this Clause 5.5 and Clauses 1 (Definitions and Interpretation), 11 (Announcements and Confidentiality), 12 (Notices), 13 (Governing Law, Disputes and Jurisdiction), 14.1 (Entire Agreement), 14.6 (Variation), 14.7 (No Assignment), 14.8 (Waiver), 14.9 (Severability), 14.10 (SupersessionOrlaco Inc. are not a U.S. real property interest in compliance with United States Treasury Regulation section 1.1445-2(c)(3) and 14.11 (Expenses) shall survive the termination of this Agreement indefinitely and that nothing herein shall relieve any Party from any liability for fraud or any breach of the provisions of this Agreement dated not more than 30 days prior to such termination; and
(ii) if applicable, the Observer shall no longer be entitled to attend the meetings of the Board (or any committee thereof) and the nominees of the Purchaser appointed on the Board in accordance with Clause 6.2 shall resign with immediate effectCompletion.
Appears in 1 contract
Completion. 5.19.1 Completion will take place on the Completion Date at the Completion Time. Subject to the conditions set out in Clauses 3.1, 3.2 and 3.3In this agreement, Completion shall take place Date means (i) 31 July 2018; or (ii) any other date agreed in writing by the parties; or (iii) if Completion is deferred in accordance with clause 9.3, the Completion Date will be the date to which Completion is so deferred, and Completion Time means 11:59pm on the Completion Date.
5.2. The obligations of each of the Parties under Clause 5.3 below are interdependent of each other. The Completion shall not occur unless all of the obligations specified in Clause 5.3, have been simultaneously complied with and are fully effective.
5.3. On the Completion Date:
(i) Subject 9.2 At or prior to deductions pursuant to Clause 4.4, the Purchaser shall remit the Purchase Consideration (in immediately available funds) to the Seller’s Bank Account.
(ii) The Seller shall (a) provide to its Depository Participant duly executed DP Instructions in the prescribed form for the transfer of the Sale Shares to the Demat Account of the Purchaser (details of which shall be provided to the Seller in writing as soon as practicable after the Execution Date); (b) procure its Depository Participant to duly acknowledge such DP Instructions; (c) deliver a copy of such acknowledgement to the Purchaser; and (d) use best endeavours to procure credit of the Sale Shares to the Demat Account of the Purchaser.
(iii) The Seller shall, to the extent it is able to do so through exercise of its voting rights, procure that a Board meeting is held at which the following business shall be transactedCompletion:
(a) the appointment of directors nominated by the Purchaser on the Board shall be approved; and
(b) an extra-ordinary general meeting of the shareholders of the Company to approve the matters set out in Clause 5.3(iii)(a) and the amendment of the Articles of Association shall be convened.
5.4. This Agreement may be terminated on or prior to the Completion Date as followsSeller will:
(i) By the mutual written consent of the Purchaser and the Seller.
deliver (iior cause to be delivered) By the Seller, upon written notice to the Purchaser, if Buyer the conditions documents and evidence set out in Clauses 3.1 and 3.3 have not been satisfied (or satisfied subject only to Completion where applicable) or waived (where applicable) on or before 270 (two hundred seventy) days from the Execution Date or such later date as may be mutually agreed between the Parties in writing (“Long Stop Date”); provided that the Seller shall not be entitled to terminate this Agreement pursuant to this Clause 5.4(ii) if Seller’s breach paragraph 1 of this Agreement has prevented or materially delayed the consummation of the Transactions (which term for the purposes of this Clause 5.4(ii) shall not include the Financing);
(iii) By the Purchaser, upon written notice to the Seller, if the conditions set out in Clauses 3.2 and 3.3 have not been satisfied (or satisfied subject only to Completion where applicable) or waived (where applicable) on or before the Long Stop Date; provided that the Purchaser shall not be entitled to terminate this Agreement pursuant to this Clause 5.4(iii) if Purchaser’s breach of this Agreement has prevented or materially delayed the consummation of the Transactions.
(iv) By the Seller (if the Seller is not in material breach of the Seller Warranties, covenants or agreements under this Agreement so as to cause any of the conditions set forth in Clause 3.2 and/or 3.3(i) not to be satisfied), upon written notice to the Purchaser, if there has been a material inaccuracy of any statement or warranty, or any unremedied material breach of a covenant or other agreement, of the Purchaser contained in this Agreement, which violation, breach or inaccuracy would cause any of the conditions set forth in Clause 3.1 and/or 3.3 not to be satisfied as of the Completion Date, and such violation, breach or inaccuracy has not been waived by the Seller or cured by the Purchaser within 20 (twenty) Business Days after receipt by the Purchaser of written notice thereof from the Seller or is not reasonably capable of being cured prior to the Long Stop Date.
(v) By the Purchaser (if the Purchaser is not in material breach of the Purchaser Warranties, covenants or agreements under this Agreement so as to cause any of the conditions set forth in Clause 3.1 and/or 3.3 not to be satisfied), upon written notice to the Seller, if there has been a material inaccuracy of any statement or warranty, or any unremedied material breach of a covenant or other agreement, of the Seller contained in this Agreement, which violation, breach or inaccuracy would cause any of the conditions set forth in Clauses 3.2 and/or 3.3(i) not to be satisfied as of the Completion Date, and such violation, breach or inaccuracy has not been waived by the Purchaser or cured by the Seller within 20 (twenty) Business Days after receipt by the Seller of written notice thereof from the Purchaser or is not reasonably capable of being cured prior to the Long Stop Date.
(vi) By the Seller or the Purchaser, upon written notice to the other, if a court of competent jurisdiction or any other Governmental Authority shall have issued a final, non-appealable order preventing or otherwise prohibiting the consummation of the Transactions.
5.5. If this Agreement is terminated prior to Completion in accordance with Clause 5.4 above,
(i) this Agreement shall become void and of no further force and effect; provided, however, that the provisions of this Clause 5.5 and Clauses 1 (Definitions and Interpretation), 11 (Announcements and Confidentiality), 12 (Notices), 13 (Governing Law, Disputes and Jurisdiction), 14.1 (Entire Agreement), 14.6 (Variation), 14.7 (No Assignment), 14.8 (Waiver), 14.9 (Severability), 14.10 (Supersession) and 14.11 (Expenses) shall survive the termination of this Agreement indefinitely and that nothing herein shall relieve any Party from any liability for fraud or any breach of the provisions of this Agreement prior to such terminationSchedule 3; and
(ii) if applicable, the Observer shall no longer be entitled to attend the meetings procure that a board meeting of the Board Companies are held at which the matters set out in paragraph 2 of Schedule 3 are carried out;
(or any committee thereofb) and the nominees of Buyer will:
(i) pay the Purchaser appointed on the Board Cash Consideration in accordance with Clause 6.2 shall resign clause 4;
(ii) issue the Promissory Note to the Seller; and
(iii) deliver to the Seller:
(A) a copy (certified as a true copy by a director or the company secretary of the Buyer) of the resolutions adopted by the Buyer's board of directors authorising Completion and the execution and delivery by the officers specified in the resolution of each Transaction Document to be executed and delivered by the Buyer at Completion; and
(B) a duly certified copy of any power of attorney under which any Transaction Document has been executed on behalf of the Buyer.
9.3 If either party does not comply with immediate effectits obligations under clause 9.2, the other party may (without prejudice to any other rights or remedies it has):
(a) proceed to Completion to the extent reasonably practicable;
(b) defer Completion to the Long Stop Date; or
(c) terminate this agreement by notice in writing to the defaulting party.
9.4 Completion may be deferred only once under clause 9.3, but otherwise this clause 9 applies to Completion so deferred as it applies to Completion that has not been deferred.
Appears in 1 contract
Sources: Share Purchase Agreement (Advantage Insurance Inc.)
Completion. 5.1. Subject 6.1 The Purchaser shall provide such documents to, and take all other actions reasonably required by, the FCA and the London Stock Exchange in order to procure that the Existing Purchaser Shares are re-admitted, and the BHE Consideration Shares are admitted, in each case to the premium listing segment of the Official List of the FCA and to trading on the main market for listed securities of the London Stock Exchange on the second Business Day following the Completion Date.
6.2 The Purchaser or the Purchaser’s Counsel shall, as soon as practicable following receipt of notice from the FCA or the LSE (as applicable), notify the Sellers or the Sellers’ Counsels that the FCA Admission Condition and the LSE Admission Condition have been satisfied. Each Seller may enforce the terms of this clause 6.2.
6.3 Completion shall take place at the offices of Freshfields Bruckhaus ▇▇▇▇▇▇▇▇ at ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇ by way of the Target Shares Transfer Deed to be formally recorded (beurkundet) by a German civil law notary on:
6.3.1 the date that is ten (10) Business Days after the Unconditional Date provided that the Sanctions Condition is satisfied on such date (or is Deemed Satisfied pursuant to clause 4.19); or
6.3.2 such other date agreed in writing by and between BASF, Letterone and the Purchaser each acting reasonably, provided the Sanctions Condition is satisfied (or is Deemed Satisfied) on such date, (the Completion Date).
6.4 Completion shall take place by no later than 17.00 CET on the Completion Date. At Completion:
6.4.1 all the documents delivered by the Parties in accordance with Schedule 1 shall be released and, to the extent not dated, the Parties agree to instruct the Purchaser’s Counsel (in respect of the documents held by them) BASF’s Counsel and ▇▇▇▇▇▇▇▇▇’s Counsel (in respect of the documents held by them) to date and deliver such documents without further instruction from any of the Parties;
6.4.2 the Purchaser shall allot and issue the Consideration Shares to the Sellers free from Encumbrances and credited as fully paid in accordance with clause 2 and each Seller may enforce the terms of this clause 6.4.2;
6.4.3 the Sellers shall assign to the Purchaser (or any Designated Purchaser) the Target Shares upon the terms and conditions of this Agreement by way of a separate assignment agreement in the Agreed Form to be formally recorded (beurkundet) by a German civil law notary on the Completion Date; and
6.4.4 the Purchaser shall implement the payment of the Completion Consideration Cash Amount (as reduced by any positive amount of any Aggregate PLTA Consummation Amount as set out in Clauses 3.1clause 5.17.8) in accordance with clause 2.2 , 3.2 and 3.3for the avoidance of doubt, receipt by each Seller of its Seller Relevant Proportion of the Completion Consideration Cash Amount shall be evidence of the satisfaction by the Purchaser of this obligation.
6.5 Immediately following Completion, the Purchaser or the Purchaser’s sponsor shall notify the FCA that Completion has taken place. As soon as practicable following receipt of confirmation from the FCA, the Purchaser or the Purchaser’s Counsel shall notify BASF and Letterone or BASF’s Counsel and Letterone’s Counsel that the Purchaser has received confirmation from the FCA that the applications for the re- admission of all of the Existing Purchaser Shares and admission of all of the BHE Consideration Shares, in each case to the premium listing segment of the Official List of the FCA have been approved unconditionally and will become effective as soon as a dealing notice has been issued by the FCA.
6.6 The Purchaser shall either:
6.6.1 deliver to the relevant Sellers the share certificate(s) relating to the Consideration Shares within ten (10) Business Days following Admission; or
6.6.2 on Admission, credit the Consideration Shares to such CREST account(s) as are notified by the relevant Sellers to the Purchaser no less than five (5) Business Days prior to the Completion Date.
6.7 BASF and Letterone are not obliged to complete this Agreement unless:
6.7.1 the Purchaser complies with all its obligations under clauses 6.1 to 6.4 (inclusive); and
6.7.2 the purchase of all the Target Shares is completed simultaneously.
6.8 The Purchaser is not obliged to complete this Agreement unless:
6.8.1 each of BASF and Letterone complies with all its obligations under this clause 6;
6.8.2 the Purchaser has received each of the documents required to be delivered by BASF and Letterone under clause 6.4.1; and
6.8.3 the sale of all the Target Shares is completed simultaneously.
6.9 If Completion does not take place on the Completion Date.Date because BASF and/or Letterone, on the one hand, or the Purchaser, on the other hand, fails to comply with any of its obligations under this clause 6, the Purchaser, where BASF and/or Letterone is in breach, or BASF and/or Letterone, where the Purchaser is in breach, may by notice to each other Party:
5.2. The obligations of each of the Parties under Clause 5.3 below are interdependent of each other. The Completion shall not occur unless all of the obligations specified in Clause 5.3, have been simultaneously complied with and are fully effective.
5.3. On 6.9.1 proceed to the Completion Date:
(i) Subject to deductions pursuant to Clause 4.4, the Purchaser shall remit the Purchase Consideration (in immediately available funds) to the Seller’s Bank Account.
(ii) The Seller shall (a) provide to its Depository Participant duly executed DP Instructions in the prescribed form for the transfer of the Sale Shares to the Demat Account of the Purchaser (details of which shall be provided to the Seller in writing as soon as practicable after the Execution Date); (b) procure its Depository Participant to duly acknowledge such DP Instructions; (c) deliver a copy of such acknowledgement to the Purchaser; and (d) use best endeavours to procure credit of the Sale Shares to the Demat Account of the Purchaser.
(iii) The Seller shall, to the extent it is able to do so through exercise of reasonably practicable (without limiting its voting rights, procure that a Board meeting is held at which the following business shall be transacted:
(a) the appointment of directors nominated by the Purchaser on the Board shall be approved; and
(b) an extra-ordinary general meeting of the shareholders of the Company to approve the matters set out in Clause 5.3(iii)(a) and the amendment of the Articles of Association shall be convened.
5.4. This Agreement may be terminated on or prior to the Completion Date as follows:
(i) By the mutual written consent of the Purchaser and the Seller.
(ii) By the Seller, upon written notice to the Purchaser, if the conditions set out in Clauses 3.1 and 3.3 have not been satisfied (or satisfied subject only to Completion where applicable) or waived (where applicable) on or before 270 (two hundred seventy) days from the Execution Date or such later date as may be mutually agreed between the Parties in writing (“Long Stop Date”); provided that the Seller shall not be entitled to terminate rights under this Agreement pursuant to this Clause 5.4(ii) if Seller’s breach of this Agreement has prevented or materially delayed the consummation of the Transactions (which term for the purposes of this Clause 5.4(ii) shall not include the FinancingAgreement);
(iii) By the Purchaser, upon written notice to the Seller, if the conditions set out in Clauses 3.2 and 3.3 have not been satisfied (or satisfied subject only to Completion where applicable) or waived (where applicable) on or before the Long Stop Date; provided that the Purchaser shall not be entitled to terminate this Agreement pursuant to this Clause 5.4(iii) if Purchaser’s breach of this Agreement has prevented or materially delayed the consummation of the Transactions.
(iv) By the Seller (if the Seller is not in material breach of the Seller Warranties, covenants or agreements under this Agreement so as to cause any of the conditions set forth in Clause 3.2 and/or 3.3(i) not to be satisfied), upon written notice to the Purchaser, if there has been a material inaccuracy of any statement or warranty, or any unremedied material breach of a covenant or other agreement, of the Purchaser contained in this Agreement, which violation, breach or inaccuracy would cause any of the conditions set forth in Clause 3.1 and/or 3.3 not to be satisfied as of 6.9.2 postpone the Completion Date, and such violation, breach or inaccuracy has to a date not been waived by the Seller or cured by the Purchaser within 20 more than five (twenty5) Business Days after receipt by the Purchaser of written notice thereof from date originally set for the Seller or is Completion (being a date which is: (i) not reasonably capable of being cured prior later than the Longstop Date; and (ii) a Business Day), provided that such postponement may occur only once; or
6.9.3 subject to the Long Stop DateCompletion first having been postponed pursuant to clause 6.9.2, terminate this Agreement without liability on its part.
(v) By the Purchaser (if the Purchaser is not in material breach of the Purchaser Warranties, covenants or agreements under this Agreement so as 6.10 If any Party postpones Completion to cause any of the conditions set forth in Clause 3.1 and/or 3.3 not to be satisfied), upon written notice to the Seller, if there has been a material inaccuracy of any statement or warranty, or any unremedied material breach of a covenant or other agreement, of the Seller contained in this Agreement, which violation, breach or inaccuracy would cause any of the conditions set forth in Clauses 3.2 and/or 3.3(i) not to be satisfied as of the Completion Date, and such violation, breach or inaccuracy has not been waived by the Purchaser or cured by the Seller within 20 (twenty) Business Days after receipt by the Seller of written notice thereof from the Purchaser or is not reasonably capable of being cured prior to the Long Stop Date.
(vi) By the Seller or the Purchaser, upon written notice to the other, if a court of competent jurisdiction or any other Governmental Authority shall have issued a final, non-appealable order preventing or otherwise prohibiting the consummation of the Transactions.
5.5. If this Agreement is terminated prior to Completion another date in accordance with Clause 5.4 above,
(i) this Agreement shall become void and of no further force and effect; provided, however, that the provisions of this Clause 5.5 and Clauses 1 (Definitions and Interpretation), 11 (Announcements and Confidentiality), 12 (Notices), 13 (Governing Law, Disputes and Jurisdiction), 14.1 (Entire Agreement), 14.6 (Variation), 14.7 (No Assignment), 14.8 (Waiver), 14.9 (Severability), 14.10 (Supersession) and 14.11 (Expenses) shall survive the termination of this Agreement indefinitely and that nothing herein shall relieve any Party from any liability for fraud or any breach of clause 6.9.2 then the provisions of this Agreement prior apply as if that other date is the Completion Date.
6.11 The Purchaser shall not be obliged to such termination; and
(ii) if applicable, complete the Observer shall no longer be entitled to attend the meetings allotment and issue of the Board (or any committee thereof) Consideration Shares unless the transfer of all the Target Shares is completed simultaneously, and the nominees Sellers shall not be obliged to complete the transfer of the Purchaser appointed on Target Shares unless the Board in accordance with Clause 6.2 shall resign with immediate effectallotment and issue of the Consideration Shares is completed simultaneously.
Appears in 1 contract
Sources: Business Combination Agreement
Completion. 5.1. 4.1 Subject to the conditions set out in Clauses 3.1, 3.2 and 3.3Clause 4.3, Completion shall take place: (a) on the third Business Day after the satisfaction or waiver (as the case may be) of the last in time of the Conditions (other than any such Condition (or any part thereof) which may only be satisfied at Completion) or, if later, at the earliest time at which Completion may take place simultaneously with the completion of the transactions contemplated under the Sale and Purchase Agreement; or (b) at such other time as may be agreed by the Parties in writing.
4.2 Completion shall take place at the offices of Skadden, Arps, Slate, M▇▇▇▇▇▇ & F▇▇▇, at 42nd Floor, Edinburgh Tower, The Landmark, 1▇ ▇▇▇▇▇’▇ ▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇, on the Completion Date.
5.2. The obligations Date at 5:00 p.m. (Hong Kong time), or at such other time and/or place or by such method (including electronic exchange of each of documents) as the Parties under Clause 5.3 below are interdependent of each other. The Completion shall not occur unless all of the obligations specified in Clause 5.3, have been simultaneously complied with and are fully effective.
5.3. On the Completion Date:
(i) Subject to deductions pursuant to Clause 4.4, the Purchaser shall remit the Purchase Consideration (in immediately available funds) to the Seller’s Bank Account.
(ii) The Seller shall (a) provide to its Depository Participant duly executed DP Instructions in the prescribed form for the transfer of the Sale Shares to the Demat Account of the Purchaser (details of which shall be provided to the Seller in writing as soon as practicable after the Execution Date); (b) procure its Depository Participant to duly acknowledge such DP Instructions; (c) deliver a copy of such acknowledgement to the Purchaser; and (d) use best endeavours to procure credit of the Sale Shares to the Demat Account of the Purchaser.
(iii) The Seller shall, to the extent it is able to do so through exercise of its voting rights, procure that a Board meeting is held may agree at which time all (but not part only) of the following business shall shall, subject to Clause 4.3, be transacted:
4.2.1 the Company shall:
(aA) allot and issue the Subscription Shares to the Investor and cause the Investor to be registered in the register of members of the Company;
(B) procure the delivery to the Investor of a certified copy of the written resolutions or minutes of a meeting of the board of directors of the Company duly passed or convened in accordance with its Constitutional Documents, approving and authorizing, among other things: (i) the appointment execution and delivery of directors nominated and performance of its obligations under this Agreement; (ii) the allotment and issue of the Subscription Shares to the Investor pursuant to this Agreement and the entry of the name of the Investor in the register of members of the Company; and (iii) any necessary action to be undertaken by the Purchaser on Company for the Board shall be approvedpurpose of giving effect to the transactions contemplated hereunder;
(C) deliver to the Investor (or as it may direct) the definitive certificates in the name of the Investor in respect of the Subscription Shares; and
(bD) deliver to the Investor a copy of an extra-ordinary general updated register of members which reflects the allotment and issue of the Subscription Shares;
(E) deliver to the Investor an original counterpart to the Shareholders’ Agreement duly executed by the Investor;
4.2.2 the Investor shall:
(A) procure the delivery to the Company of a certified copy of the written resolutions or minutes of a meeting of the shareholders board of directors of the Company to approve the matters set out Investor duly passed or convened in Clause 5.3(iii)(a) accordance with its Constitutional Documents, approving and the amendment of the Articles of Association shall be convened.
5.4. This Agreement may be terminated on or prior to the Completion Date as follows:
authorizing, among other things: (i) By the mutual written consent execution and delivery of the Purchaser and the Seller.
performance of its obligations under this Agreement; (ii) By the Seller, upon written notice Subscription; and (iii) any necessary action to be undertaken by the board of directors of the Investor for the purpose of giving effect to the Purchaser, if the conditions set out in Clauses 3.1 and 3.3 have not been satisfied (or satisfied subject only to Completion where applicable) or waived (where applicable) on or before 270 (two hundred seventy) days from the Execution Date or such later date as may be mutually agreed between the Parties in writing (“Long Stop Date”); provided that the Seller shall not be entitled to terminate this Agreement pursuant to this Clause 5.4(ii) if Seller’s breach of this Agreement has prevented or materially delayed the consummation of the Transactions (which term for the purposes of this Clause 5.4(ii) shall not include the Financing)transactions contemplated hereunder;
(iiiB) By the Purchaser, upon written notice deliver to the Seller, if Company an original counterpart to the conditions set out in Clauses 3.2 and 3.3 have not been satisfied (or satisfied subject only to Completion where applicable) or waived (where applicable) on or before the Long Stop Date; provided that the Purchaser shall not be entitled to terminate this Shareholders’ Agreement pursuant to this Clause 5.4(iii) if Purchaser’s breach of this Agreement has prevented or materially delayed the consummation duly executed by each of the Transactions.
(iv) By the Seller (if the Seller is not in material breach of the Seller Warranties, covenants or agreements under this Agreement so as to cause any of the conditions set forth in Clause 3.2 and/or 3.3(i) not to be satisfied), upon written notice to the Purchaser, if there has been a material inaccuracy of any statement or warranty, or any unremedied material breach of a covenant or other agreement, of the Purchaser contained in this Agreement, which violation, breach or inaccuracy would cause any of the conditions set forth in Clause 3.1 and/or 3.3 not to be satisfied as of the Completion Date, Investor and such violation, breach or inaccuracy has not been waived by the Seller or cured by the Purchaser within 20 (twenty) Business Days after receipt by the Purchaser of written notice thereof from the Seller or is not reasonably capable of being cured prior to the Long Stop Date.
(v) By the Purchaser (if the Purchaser is not in material breach of the Purchaser Warranties, covenants or agreements under this Agreement so as to cause any of the conditions set forth in Clause 3.1 and/or 3.3 not to be satisfied), upon written notice to the Seller, if there has been a material inaccuracy of any statement or warranty, or any unremedied material breach of a covenant or other agreement, of the Seller contained in this Agreement, which violation, breach or inaccuracy would cause any of the conditions set forth in Clauses 3.2 and/or 3.3(i) not to be satisfied as of the Completion Date, and such violation, breach or inaccuracy has not been waived by the Purchaser or cured by the Seller within 20 (twenty) Business Days after receipt by the Seller of written notice thereof from the Purchaser or is not reasonably capable of being cured prior to the Long Stop Date.
(vi) By the Seller or the Purchaser, upon written notice to the other, if a court of competent jurisdiction or any other Governmental Authority shall have issued a final, non-appealable order preventing or otherwise prohibiting the consummation of the Transactions.
5.5. If this Agreement is terminated prior to Completion in accordance with Clause 5.4 above,
(i) this Agreement shall become void and of no further force and effect; provided, however, that the provisions of this Clause 5.5 and Clauses 1 (Definitions and Interpretation), 11 (Announcements and Confidentiality), 12 (Notices), 13 (Governing Law, Disputes and Jurisdiction), 14.1 (Entire Agreement), 14.6 (Variation), 14.7 (No Assignment), 14.8 (Waiver), 14.9 (Severability), 14.10 (Supersession) and 14.11 (Expenses) shall survive the termination of this Agreement indefinitely and that nothing herein shall relieve any Party from any liability for fraud or any breach of the provisions of this Agreement prior to such terminationF▇▇▇▇▇▇; and
(iiC) if applicable, pay by electronic transfer in Hong Kong dollars by way of electronic funds transfer in immediately available funds to the Observer shall no longer be entitled to attend the meetings following bank account of the Board (or any committee thereof) Company and the nominees receipt of the Purchaser appointed total in cleared funds on the Board in accordance with date of Completion shall constitute a valid discharge of the Investor's obligations under Clause 6.2 shall resign with immediate effect2.2 and this Clause 4.2.2.
Appears in 1 contract
Sources: Subscription Agreement (E-House (China) Enterprise Holdings LTD)
Completion. 5.1. Subject 7.1 The sales and purchases referred to in Clauses 2 and 3 shall be conditional on:
(a) the conditions issue by the Issuer of the Notes and the drawing by the Issuer under the Subordinated Loan Agreement of the amounts referred to in clause 2.1 of the Subordinated Loan Agreement on the Closing Date;
(b) the Relevant Documents having been executed and delivered by the parties thereto on or before the Closing Date;
(c) the delivery by the Issuer, the Seller and each relevant Warehouser of a solvency certificate dated the date of such purchase in or substantially in the form set out in Clauses 3.1Schedule 6, 3.2 signed by an authorised officer of the relevant company; and
(1) in the case of the sale and 3.3purchase of the Original Mortgages, the delivery of each Warehouse Original Release and (2) in the case of the sale and purchase of Additional Mortgages, if applicable, the delivery of the relevant Warehouse Further Release relating to those Additional Mortgages. Completion of the purchase of the Original Mortgages shall take place on the Completion Date.
5.2. The obligations Closing Date immediately upon satisfaction of each of conditions (a), (b), (c) and (d)(1) referred to in this Clause 7.1, when the Parties under Clause 5.3 below are interdependent of each other. The Completion shall not occur unless all of the obligations specified steps listed in Clause 5.37.2 shall take place, have been simultaneously complied with and are fully effective.
5.3. On the Completion Date:
(i) Subject to deductions pursuant to Clause 4.4, the Purchaser shall remit the Purchase Consideration (in immediately available funds) to the Seller’s Bank Account.
(ii) The Seller shall (a) provide to its Depository Participant duly executed DP Instructions in the prescribed form for the transfer of the Sale Shares to the Demat Account of the Purchaser (details each of which shall be provided deemed to take place simultaneously and simultaneously with the satisfaction of conditions (a), (b), (c) and (d)(1) referred to in this Clause 7.1, immediately following which the steps listed in Clauses 7.5, 7.6 and 7.7 shall take place, each of which shall be deemed to take place simultaneously and payment shall be made in accordance with Clause 7.8.
7.2 On the Closing Date, the Warehousers shall deliver to the Seller in writing as soon as practicable after the Execution Date); case of the Original Mortgages:
(a) paper copies of the title deeds to the Properties in respect of the Original Mortgages;
(b) procure its Depository Participant to duly acknowledge such DP Instructions; electronic copies of the Original Mortgages registered at the Land Registry of England and Wales;
(c) deliver a its files relating to each of the Original Mortgages; and
(d) one copy of such acknowledgement the Annexure to this Agreement, signed by the Purchaser; parties hereto for the purposes of identification, and each of the Warehousers and the Administrator shall deliver the relevant Warehouse Original Release (as appropriate to effect a release of any security interest over the legal and beneficial interests therein). The items referred to in (a), (b), (c) and (d) use best endeavours above shall be delivered on the Closing Date to procure credit the offices of the Sale Shares Administrator in Solihull or the relevant Warehouser shall confirm to the Demat Account Seller in an agreed form of letter that following the Closing Date such items will be held by the relevant Warehouser to the order of the Purchaser.
(iii) The Seller shall, to and the extent it is able to do so through exercise of its voting rights, procure Seller agrees that a Board meeting is held at which the following business compliance with this provision shall be transacted:
(a) the appointment of directors nominated by the Purchaser on the Board shall be approved; and
(b) an extra-ordinary general meeting constitute good delivery of the shareholders of the Company to approve the matters set out in Clause 5.3(iii)(a) and the amendment of the Articles of Association shall be convened.
5.4. This Agreement may be terminated on or prior to the Completion Date as follows:
(i) By the mutual written consent of the Purchaser and the Seller.
(ii) By the Seller, upon written notice to the Purchaser, if the conditions set out in Clauses 3.1 and 3.3 have not been satisfied (or satisfied subject only to Completion where applicable) or waived (where applicable) on or before 270 (two hundred seventy) days from the Execution Date or such later date as may be mutually agreed between the Parties in writing (“Long Stop Date”); provided that the Seller shall not be entitled to terminate this Agreement pursuant to this Clause 5.4(ii) if Seller’s breach of this Agreement has prevented or materially delayed the consummation of the Transactions (which term relevant documents for the purposes of this Clause 5.4(iiClause.
7.3 On each Further Purchase Date, if applicable, the relevant Warehouser shall deliver to the Seller in the case of the Additional Mortgages:
(a) shall not include paper copies of the Financing)title deeds to the Properties in respect of the relevant Additional Mortgages;
(iiib) By electronic copies of the PurchaserAdditional Mortgages registered at the Land Registry of England and Wales;
(c) its files relating to each of the relevant Additional Mortgages; and
(d) one copy of each of the Additional Mortgage Requests delivered pursuant to Clauses 2.2 and 3.2, upon written notice and each of that Warehouser and the Seller shall deliver a Warehouse Further Release (as appropriate to effect a release of any security interest over the legal and beneficial interests therein).
7.4 The items referred to in (a), (b), (c) and (d) in Clause 7.3 above shall be delivered on each Further Purchase Date at the offices of the Administrator in Solihull or the relevant Warehouser shall confirm to the SellerSeller in an agreed form of letter that following such Further Purchase Date such items will be held by the relevant Warehouser to the order of the Seller and the Seller agrees that compliance with this provision shall constitute good delivery of the relevant documents for the purposes of this Clause.
7.5 On each Purchase Date, subject to the relevant Warehouser having performed its obligations under Clause 7.2 in the case of the Original Mortgages and Clause 7.3 in the case of the Additional Mortgages, if any, as the conditions case may be, the Seller shall procure the payment of the Warehouser Consideration payable to the relevant Warehouser in accordance with Clause 5.1 for value on the relevant Purchase Date.
7.6 On each Purchase Date, the Seller shall deliver or procure that there are delivered to the Issuer:
(a) in the case of the Closing Date only, a duly executed power (in duplicate) in the form of the Power of Attorney;
(b) in the case of the Closing Date only, a certified copy of each of the relevant Insurance Contracts set out in Clauses 3.2 Schedule 1 and 3.3 have not in the case of a Further Purchase Date, a certificate stating that there has been satisfied no material change to the Insurance Contracts set out in Schedule 1 (or satisfied subject only to Completion where applicable) or waived (where applicable) on or before the Long Stop Date; provided that the Purchaser shall not be entitled to terminate this Agreement pursuant to this Clause 5.4(iii) if Purchaser’s breach of this Agreement has prevented or materially delayed the consummation of the Transactions.
(iv) By the Seller (if the Seller is not in material breach of the Seller Warranties, covenants or agreements under this Agreement so as to cause any of the conditions set forth in Clause 3.2 and/or 3.3(i) not to be satisfied), upon written notice to the Purchaser, if there has been a material inaccuracy change, a certified copy of the relevant Insurance Contract);
(c) the documents referred to in Clause 7.2 or Clause 7.3 on the relevant Purchase Date as the case may be, and the Seller shall deliver the relevant Warehouse Release (as appropriate to effect a release of any statement or warrantysecurity interest over the legal and beneficial interests therein). The items referred to in Clauses 7.2 and 7.3, items (a), (b) and (c) (in each case) shall be delivered on the relevant Purchase Date at the offices of the Administrator in Solihull, or any unremedied material breach the Seller shall confirm to the Issuer and the Trustee in an agreed form of a covenant or other agreement, of the Purchaser contained in this Agreement, which violation, breach or inaccuracy would cause any of the conditions set forth in Clause 3.1 and/or 3.3 not to be satisfied letter that as of the Completion Date, and relevant Purchase Date such violation, breach or inaccuracy has not been waived items will be held by the Seller to the order of the Trustee. The Issuer agrees that compliance with this provision shall constitute good delivery of the relevant documents to the Issuer for the purposes of this Clause.
7.7 In the case of the Closing Date only, the Issuer shall deliver, or cured procure that there are delivered, to the Administrator powers of attorney duly executed by the Purchaser within 20 (twenty) Business Days after receipt by Issuer and the Purchaser of written notice thereof from the Seller or is not reasonably capable of being cured prior to the Long Stop Date.
(v) By the Purchaser (if the Purchaser is not in material breach of the Purchaser Warranties, covenants or agreements under this Agreement so as to cause any of the conditions set forth in Clause 3.1 and/or 3.3 not to be satisfied), upon written notice to the Seller, if there has been a material inaccuracy of any statement or warranty, or any unremedied material breach of a covenant or other agreement, of the Seller contained in this Agreement, which violation, breach or inaccuracy would cause any of the conditions set forth in Clauses 3.2 and/or 3.3(i) not to be satisfied as of the Completion Date, and such violation, breach or inaccuracy has not been waived by the Purchaser or cured by the Seller within 20 (twenty) Business Days after receipt by the Seller of written notice thereof from the Purchaser or is not reasonably capable of being cured prior to the Long Stop Date.
(vi) By the Seller or the Purchaser, upon written notice to the other, if a court of competent jurisdiction or any other Governmental Authority shall have issued a final, non-appealable order preventing or otherwise prohibiting the consummation of the Transactions.
5.5. If this Agreement is terminated prior to Completion Trustee in accordance with Clause 5.4 above,
(i) this Agreement shall become void and of no further force and effect; provided, however, that the provisions of this Clause 5.5 and Clauses 1 (Definitions and Interpretation), 11 (Announcements and Confidentiality), 12 (Notices), 13 (Governing Law, Disputes and Jurisdiction), 14.1 (Entire Agreement), 14.6 (Variation), 14.7 (No Assignment), 14.8 (Waiver), 14.9 (Severability), 14.10 (Supersession) and 14.11 (Expenses) shall survive the termination of this Agreement indefinitely and that nothing herein shall relieve any Party from any liability for fraud or any breach clause 10.1 of the provisions Administration Agreement.
7.8 On the relevant Purchase Date, subject to each of this Agreement prior to such termination; and
(ii) if applicablethe relevant Warehouser and the Seller having satisfied and performed their respective obligations herein, the Observer Issuer shall no longer be entitled to attend satisfy and discharge the meetings of the Board (or any committee thereof) and the nominees of the Purchaser appointed on the Board in accordance with Clause 6.2 shall resign with immediate effect.Initial Purchase Consideration payable under Clause
Appears in 1 contract
Sources: Mortgage Sale Agreement
Completion. 5.1. Subject to the conditions set out in Clauses 3.1, 3.2 and 3.3, Completion shall take place on the Completion Date.
5.2. The obligations provisions of each of the Parties under Clause 5.3 below are interdependent of each other. The Completion shall not occur unless all of the obligations specified in Clause 5.3, have been simultaneously complied with and are fully effective.
5.3. On the Completion Date:
(i) Subject to deductions pursuant to Clause 4.4this Agreement, the Purchaser shall remit the Purchase Consideration (in immediately available funds) to the Seller’s Bank Account.
(ii) The Seller shall (a) provide to its Depository Participant duly executed DP Instructions in the prescribed form for the transfer sale and purchase of the Sale Shares to the Demat Account of the Purchaser (details of which shall be provided to completed on the Seller in writing as soon as practicable after the Execution Date); (b) procure its Depository Participant to duly acknowledge such DP Instructions; (c) deliver a copy of such acknowledgement to the Purchaser; Completion Date where and (d) use best endeavours to procure credit of the Sale Shares to the Demat Account of the Purchaser.
(iii) The Seller shall, to the extent it is able to do so through exercise of its voting rights, procure that a Board meeting is held at which the following business shall be transacted:when:-
(a) the appointment Purchaser shall pay the Balance Purchase Price less the Redemption Sum and less the Liabilities by way of directors nominated by two banker’s cheques in the Purchaser on the Board shall be approved; and
(b) an extra-ordinary general meeting of the shareholders of the Company to approve the matters set out in Clause 5.3(iii)(a) and the amendment of the Articles of Association shall be convened.
5.4. This Agreement may be terminated on or prior to the Completion Date as follows:following manner:-
(i) By Firstly, a sum equivalent to the mutual written consent Balance Purchase Price less the Redemption Sum, the Liabilities and the Current Director’s Advance to the Vendor as the final balance of the Purchaser and the Seller.
(ii) By the Seller, upon written notice to the Purchaser, if the conditions set out in Clauses 3.1 and 3.3 have not been satisfied (or satisfied subject only to Completion where applicable) or waived (where applicable) on or before 270 (two hundred seventy) days from the Execution Date or such later date as may be mutually agreed between the Parties in writing (“Long Stop Date”); provided that the Seller shall not be entitled to terminate this Agreement pursuant to this Clause 5.4(ii) if Seller’s breach of this Agreement has prevented or materially delayed the consummation of the Transactions (which term for the purposes of this Clause 5.4(ii) shall not include the Financing);
(iii) By the Purchaser, upon written notice to the Seller, if the conditions set out in Clauses 3.2 and 3.3 have not been satisfied (or satisfied subject only to Completion where applicable) or waived (where applicable) on or before the Long Stop Date; provided that the Purchaser shall not be entitled to terminate this Agreement pursuant to this Clause 5.4(iii) if Purchaser’s breach of this Agreement has prevented or materially delayed the consummation of the Transactions.
(iv) By the Seller (if the Seller is not in material breach of the Seller Warranties, covenants or agreements under this Agreement so as to cause any of the conditions set forth in Clause 3.2 and/or 3.3(i) not to be satisfied), upon written notice to the Purchaser, if there has been a material inaccuracy of any statement or warranty, or any unremedied material breach of a covenant or other agreement, of the Purchaser contained in this Agreement, which violation, breach or inaccuracy would cause any of the conditions set forth in Clause 3.1 and/or 3.3 not to be satisfied as of the Completion Date, and such violation, breach or inaccuracy has not been waived by the Seller or cured by the Purchaser within 20 (twenty) Business Days after receipt by the Purchaser of written notice thereof from the Seller or is not reasonably capable of being cured prior to the Long Stop Date.
(v) By the Purchaser (if the Purchaser is not in material breach of the Purchaser Warranties, covenants or agreements under this Agreement so as to cause any of the conditions set forth in Clause 3.1 and/or 3.3 not to be satisfied), upon written notice to the Seller, if there has been a material inaccuracy of any statement or warranty, or any unremedied material breach of a covenant or other agreement, of the Seller contained in this Agreement, which violation, breach or inaccuracy would cause any of the conditions set forth in Clauses 3.2 and/or 3.3(i) not to be satisfied as of the Completion Date, and such violation, breach or inaccuracy has not been waived by the Purchaser or cured by the Seller within 20 (twenty) Business Days after receipt by the Seller of written notice thereof from the Purchaser or is not reasonably capable of being cured prior to the Long Stop Date.
(vi) By the Seller or the Purchaser, upon written notice to the other, if a court of competent jurisdiction or any other Governmental Authority shall have issued a final, non-appealable order preventing or otherwise prohibiting the consummation of the Transactions.
5.5. If this Agreement is terminated prior to Completion in accordance with Clause 5.4 above,
(i) this Agreement shall become void and of no further force and effect; provided, however, that the provisions of this Clause 5.5 and Clauses 1 (Definitions and Interpretation), 11 (Announcements and Confidentiality), 12 (Notices), 13 (Governing Law, Disputes and Jurisdiction), 14.1 (Entire Agreement), 14.6 (Variation), 14.7 (No Assignment), 14.8 (Waiver), 14.9 (Severability), 14.10 (Supersession) and 14.11 (Expenses) shall survive the termination of this Agreement indefinitely and that nothing herein shall relieve any Party from any liability for fraud or any breach of the provisions of this Agreement prior to such terminationPurchase Price; and
(ii) if applicableSecondly, a sum equivalent to the Current Director’s Advance to the relevant director to settle in full the said Current Director’s Advance and the same shall be treated as an advance by the Purchaser to the Company to settle the said Current Director’s Advance. In this connection, the Observer Vendor’s Solicitors shall no longer confirm in writing the exact amount of the Current Director’s Advance within four (4) days from the written request of the Purchaser or the Purchaser’s Solicitors;
(b) the Vendor’s Solicitors shall deliver to the Purchaser the said Documents whereupon the Purchaser shall be entitled to attend cause the meetings said Documents to be duly registered in its favour;
(c) the Company Secretary shall deliver all the minutes, statutory documents, shares register, cheque books, tax documents, accounts, bank statements, common seals, unissued share certificates, rubber stamps, all contract documents whether already expired, terminated or not, all other documents, instruments, deeds, goods, belongings and effects of the Board (or any committee thereof) and Company to the nominees of the Purchaser appointed on the Board in accordance with Clause 6.2 shall resign with immediate effect.Purchaser;
Appears in 1 contract
Completion. 5.1. Subject to the conditions set out in Clauses 3.1, 3.2 and 3.3, 6.1 Completion shall take place on the Completion DateDate at the offices of the Purchaser’s or the Seller Lawyers, in each case taking into account applicable tax considerations, or at such other place as is agreed in writing by the Seller and Purchaser.
5.26.2 At Completion the Seller shall undertake those actions listed in Part 1of Schedule 2 (Completion Arrangements) and the Purchaser shall undertake those actions listed in Part 2 of Schedule 2 (Completion Arrangements). The Payment of the Closing Amount to the Seller’s Designated Account shall discharge the obligations of each the Purchaser (a) pursuant to Clause 6.4 and (b) to pay the Closing Amount, and the Purchaser shall not be concerned as to the application of the Parties Closing Amount between the Relevant Sellers.
6.3 If: (i) the Seller breaches its obligations under Clause 5.3 below are interdependent 6.2 and under paragraph 1, 2.3, 2.5, 3.2, 3.4, 3.5, 3.6 or 3.7 of each other. The Part 1 of Schedule 2 (Completion shall not occur unless all Arrangements); or (ii) the Purchaser breaches its obligations under Clause 6.2 and under paragraph 1, 2, 3 or 4 of Part 2 of Schedule 2 (Completion Arrangements) on the obligations specified Completion Date, the Seller (in the case of a breach by the Purchaser) or the
(a) defer Completion (with the provisions of this Clause 5.36 applying to Completion as so deferred);
(b) proceed to Completion as far as practicable (without limiting its rights and remedies under this Agreement); or
(c) treat this Agreement as terminated for breach of condition subject to, have been simultaneously complied with and are fully effectiveon the basis set out in, Clause 13.5.
5.3. On 6.4 Immediately following Completion but on the Completion Date:
(ia) Subject to deductions pursuant to Clause 4.4, the Purchaser shall remit procure that each relevant Group Company repays to the Purchase Consideration (in immediately available funds) to relevant member of the Seller’s Bank Account.
Group (iiother than another Group Company) The Seller the amount of any Estimated Intra-Group Financing Payables in respect of that Group Company, and shall (a) provide to its Depository Participant duly executed DP Instructions in acknowledge on behalf of each relevant Group Company the prescribed form for the transfer payment of the Sale Shares to the Demat Account of the Purchaser (details of which shall be provided to the Seller Estimated Intra-Group Financing Receivables in writing as soon as practicable after the Execution Dateaccordance with Clause 6.4(b); (b) procure its Depository Participant to duly acknowledge such DP Instructions; (c) deliver a copy of such acknowledgement to the Purchaser; and (d) use best endeavours to procure credit of the Sale Shares to the Demat Account of the Purchaser.
(iii) The Seller shall, to the extent it is able to do so through exercise of its voting rights, procure that a Board meeting is held at which the following business shall be transacted:
(a) the appointment of directors nominated by the Purchaser on the Board shall be approved; and
(b) an extra-ordinary general meeting of the shareholders of the Company to approve the matters set out in Clause 5.3(iii)(a) and the amendment of the Articles of Association shall be convened.
5.4. This Agreement may be terminated on or prior to the Completion Date as follows:
(i) By the mutual written consent of the Purchaser and the Seller.
(ii) By the Seller, upon written notice to the Purchaser, if the conditions set out in Clauses 3.1 and 3.3 have not been satisfied (or satisfied subject only to Completion where applicable) or waived (where applicable) on or before 270 (two hundred seventy) days from the Execution Date or such later date as may be mutually agreed between the Parties in writing (“Long Stop Date”); provided that the Seller shall not be entitled to terminate this Agreement pursuant to this Clause 5.4(ii) if procure that each relevant member of the Seller’s breach Group (other than a Group Company) repays to the relevant Group Company the amount of this Agreement has prevented or materially delayed the consummation any Estimated Intra-Group Financing Receivables in respect of that Group Company, and shall acknowledge on behalf of each relevant member of the Transactions (which term for Seller’s Group the purposes of this Clause 5.4(ii) shall not include the Financing);
(iii) By the Purchaser, upon written notice to the Seller, if the conditions set out in Clauses 3.2 and 3.3 have not been satisfied (or satisfied subject only to Completion where applicable) or waived (where applicable) on or before the Long Stop Date; provided that the Purchaser shall not be entitled to terminate this Agreement pursuant to this Clause 5.4(iii) if Purchaser’s breach of this Agreement has prevented or materially delayed the consummation payment of the Transactions.
(iv) By the Seller (if the Seller is not in material breach of the Seller Warranties, covenants or agreements under this Agreement so as to cause any of the conditions set forth in Clause 3.2 and/or 3.3(i) not to be satisfied), upon written notice to the Purchaser, if there has been a material inaccuracy of any statement or warranty, or any unremedied material breach of a covenant or other agreement, of the Purchaser contained in this Agreement, which violation, breach or inaccuracy would cause any of the conditions set forth in Clause 3.1 and/or 3.3 not to be satisfied as of the Completion Date, and such violation, breach or inaccuracy has not been waived by the Seller or cured by the Purchaser within 20 (twenty) Business Days after receipt by the Purchaser of written notice thereof from the Seller or is not reasonably capable of being cured prior to the Long Stop Date.
(v) By the Purchaser (if the Purchaser is not in material breach of the Purchaser Warranties, covenants or agreements under this Agreement so as to cause any of the conditions set forth in Clause 3.1 and/or 3.3 not to be satisfied), upon written notice to the Seller, if there has been a material inaccuracy of any statement or warranty, or any unremedied material breach of a covenant or other agreement, of the Seller contained in this Agreement, which violation, breach or inaccuracy would cause any of the conditions set forth in Clauses 3.2 and/or 3.3(i) not to be satisfied as of the Completion Date, and such violation, breach or inaccuracy has not been waived by the Purchaser or cured by the Seller within 20 (twenty) Business Days after receipt by the Seller of written notice thereof from the Purchaser or is not reasonably capable of being cured prior to the Long Stop Date.
(vi) By the Seller or the Purchaser, upon written notice to the other, if a court of competent jurisdiction or any other Governmental Authority shall have issued a final, nonEstimated Intra-appealable order preventing or otherwise prohibiting the consummation of the Transactions.
5.5. If this Agreement is terminated prior to Completion Group Financing Payables in accordance with Clause 5.4 above,6.4(a).
(i) this Agreement 6.5 The repayments made pursuant to Clause 6.4 shall become void and of no further force and effect; provided, however, that the provisions of this Clause 5.5 and Clauses 1 (Definitions and Interpretation), 11 (Announcements and Confidentiality), 12 (Notices), 13 (Governing Law, Disputes and Jurisdiction), 14.1 (Entire Agreement), 14.6 (Variation), 14.7 (No Assignment), 14.8 (Waiver), 14.9 (Severability), 14.10 (Supersession) and 14.11 (Expenses) shall survive the termination of this Agreement indefinitely and that nothing herein shall relieve any Party from any liability for fraud or any breach of the provisions of this Agreement prior to such termination; and
(ii) if applicable, the Observer shall no longer be entitled to attend the meetings of the Board (or any committee thereof) and the nominees of the Purchaser appointed on the Board adjusted in accordance with Clause 6.2 7.4 when the Closing Statement becomes final and binding in accordance with Clause 7.2(a).
6.6 The Parties agree that notwithstanding Clause 6.1, if any Local Transfer Document is required to be notarised, the relevant Parties shall resign execute such document on the Completion Date at a mutually convenient location where a notary with immediate effectthe required qualification will be present.
Appears in 1 contract
Sources: Sale and Purchase Agreement
Completion. 5.1. Subject to the conditions set out in Clauses 3.1, 3.2 and 3.3, 1.1 Completion shall take place on 7 September 2004 at the Completion Dateoffices of the Purchaser's Solicitors in London.
5.2. The obligations of each of 1.2 At Completion, the Parties under Clause 5.3 below are interdependent of each other. The Completion following events shall not occur unless all of the obligations specified in Clause 5.3take place, which shall be deemed to have been simultaneously complied with and are fully effective.
5.3. On the Completion Datetaken place simultaneously:
(i) Subject to deductions pursuant to Clause 4.4, The Purchaser shall present a written approval from the County Administrative Board in Stockholm approving the Purchaser shall remit as purchaser of the Purchase Consideration (in immediately available funds) to the Seller’s Bank AccountCompany and, indirectly, its subsidiary AB Svensk Pantbelaning.
(ii) The Seller Vendor shall (a) provide to its Depository Participant duly executed DP Instructions present a signed application for annulment of the lost share certificates in the prescribed Company in a form for the transfer of the Sale Shares satisfactorily to the Demat Account of the Purchaser (details of Purchaser, which shall be provided registered with the relevant court within seven (7) days from completion SCHEDULE 1.2(ii).
(iii) Documents in the agreed form showing the authority to sign for the Seller Vendor, The Rutland Partnership (and others) ( referred to as "Rutland" in writing as soon as practicable after this Schedule 5) and the Execution Date); Purchaser shall be presented. Powers of attorney in the agreed form shall be presented where the Vendor, Rutland or the Purchaser is unable to attend in person at Completion.
(biv) procure its Depository Participant to The Agreement shall be duly acknowledge such DP Instructions; (c) deliver a copy of such acknowledgement to executed by the Purchaser; Vendor and (d) use best endeavours to procure credit of the Sale Shares to the Demat Account of the Purchaser.
(iiiv) The Seller shall, Purchaser shall pay the Consideration to the extent it is able to do so through exercise of its voting rights, procure that a Board meeting is held at which the following business shall be transacted:Vendor by;
(a) effecting an electronic funds transfer of the appointment Provisional Cash Consideration by to the Vendor's Solicitors' client account with National Westminister Bank P.O Box 221, Connaught House 65 Aldwych, London WC2B ▇ ▇▇, ▇▇▇▇ ▇▇▇▇ ▇▇-▇▇-▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇ ▇▇ or by such other method as may be agreed between the parties;
(b) the issue and delivery to Vendor of the A Note following a resolution by the board of directors nominated by of the Purchaser on the Board shall be approvedin accordance with SCHEDULE 1.1(iii)(b); and
(bc) an extrathe subscription, payment (with payment by way of set-ordinary off) and delivery to Vendor of the B Note, following execution of the Set-off Agreement attached in SCHEDULE 1.1 (iii)(c) hereto and a resolution by the general meeting of the shareholders of the Company to approve the matters set out in Clause 5.3(iii)(a) and the amendment of the Articles of Association shall be convened.
5.4. This Agreement may be terminated on or prior to the Completion Date as follows:
(i) By the mutual written consent of the Purchaser and the Seller.
(ii) By the Seller, upon written notice to the Purchaser, if the conditions set out all in Clauses 3.1 and 3.3 have not been satisfied accordance with SCHEDULE 1.1 (or satisfied subject only to Completion where applicable) or waived (where applicable) on or before 270 (two hundred seventy) days from the Execution Date or such later date as may be mutually agreed between the Parties in writing (“Long Stop Date”iii)(c); provided that the Seller shall not be entitled to terminate this Agreement pursuant to this Clause 5.4(ii) if Seller’s breach of this Agreement has prevented or materially delayed the consummation of the Transactions (which term for the purposes of this Clause 5.4(ii) shall not include the Financing);
(iii) By the Purchaser, upon written notice to the Seller, if the conditions set out in Clauses 3.2 and 3.3 have not been satisfied (or satisfied subject only to Completion where applicable) or waived (where applicable) on or before the Long Stop Date; provided that the Purchaser shall not be entitled to terminate this Agreement pursuant to this Clause 5.4(iii) if Purchaser’s breach of this Agreement has prevented or materially delayed the consummation of the Transactions.
(iv) By the Seller (if the Seller is not in material breach of the Seller Warranties, covenants or agreements under this Agreement so as to cause any of the conditions set forth in Clause 3.2 and/or 3.3(i) not to be satisfied), upon written notice to the Purchaser, if there has been a material inaccuracy of any statement or warranty, or any unremedied material breach of a covenant or other agreement, of the Purchaser contained in this Agreement, which violation, breach or inaccuracy would cause any of the conditions set forth in Clause 3.1 and/or 3.3 not to be satisfied as of the Completion Date, and such violation, breach or inaccuracy has not been waived by the Seller or cured by the Purchaser within 20 (twenty) Business Days after receipt by the Purchaser of written notice thereof from the Seller or is not reasonably capable of being cured prior to the Long Stop Date.
(v) By the Purchaser (if the Purchaser is not in material breach of the Purchaser Warranties, covenants or agreements under this Agreement so as to cause any of the conditions set forth in Clause 3.1 and/or 3.3 not to be satisfied), upon written notice to the Seller, if there has been a material inaccuracy of any statement or warranty, or any unremedied material breach of a covenant or other agreement, of the Seller contained in this Agreement, which violation, breach or inaccuracy would cause any of the conditions set forth in Clauses 3.2 and/or 3.3(i) not to be satisfied as of the Completion Date, and such violation, breach or inaccuracy has not been waived by the Purchaser or cured by the Seller within 20 (twenty) Business Days after receipt by the Seller of written notice thereof from the Purchaser or is not reasonably capable of being cured prior to the Long Stop Date.
(vi) By The Vendor shall procure that the Seller or the Purchaser, upon written notice to the other, if a court board of competent jurisdiction or any other Governmental Authority shall have issued a final, non-appealable order preventing or otherwise prohibiting the consummation directors of the TransactionsCompany enters the Purchaser as owner of the Shares in the share ledger (Sw: aktiebok) of the Company and cause the Company to keep available its share ledger with the change of ownership duly noted. The Vendor shall also present up-to-date share ledgers of the other Group Members stating that no share certificates have been issued by the board in the respective other Group Members.
5.5. If this (vii) The Securities Holders' Agreement is terminated prior to Completion in accordance with Clause 5.4 above,
(i) this Agreement shall become void and of no further force and effect; provided, however, that the provisions of this Clause 5.5 and Clauses 1 (Definitions and Interpretation), 11 (Announcements and Confidentiality), 12 (Notices), 13 (Governing Law, Disputes and Jurisdiction), 14.1 (Entire Agreement), 14.6 (Variation), 14.7 (No Assignment), 14.8 (Waiver), 14.9 (Severability), 14.10 (Supersession) and 14.11 (Expenses) shall survive the termination of this Agreement indefinitely and that nothing herein shall relieve any Party from any liability for fraud or any breach of the provisions of this Agreement prior to such termination; and
(ii) if applicable, the Observer shall no longer be entitled to attend the meetings of the Board (or any committee thereof) and the nominees of the Purchaser appointed on the Board in accordance with Clause 6.2 shall resign with immediate effect.attached as SCHEDULE 1.1
Appears in 1 contract
Sources: Share Purchase Agreement (Cash America International Inc)
Completion. 5.1. 8.1 Completion shall be conditional upon:
8.1.1 the Purchaser being satisfied with the prospects for the Business in accordance with Clause 7 and its not having served a notice terminating this Agreement pursuant to Clause 16.3;
8.1.2 the (i) Purchaser raising the Main Funding through the private placement of Securities equal to or more than the amount of the Main Funding, closing of which shall be a condition of, and simultaneously closed on, Completion, (ii) the Main Funding having been deposited at Completion into a restricted bank account of the Company agreeable to the Purchaser, (iii) the Company presenting evidence satisfactory to the Purchaser that the requirements of the Purchaser’s designated representative’s (or his dully appointed replacement) signature is an irrevocable and absolute requirement for purposes of said restricted bank account of the Company, in order to properly govern the manner and terms upon which the funds to be raised in the Main Funding may be drawn down and disbursed from said restricted bank account (i.e., require the approval of a designated representative of the Purchaser); and (iv) the Company presenting evidence satisfactory to the Purchaser that the disposition of any or all of the Main Funding from the said restricted bank account of the Company shall be conditional on the bank operating said restricted bank account receiving Release Notice instructions part of the Release Notice Agreement and substantially in the form of Exhibit 2, unless prior to Completion agreed to otherwise in writing solely by the Purchaser;
8.1.3 the Company and the Purchaser, having fulfilled their respective obligations with respect to the Completion Agreements and other documents as set out in Schedule 7;
8.1.4 all documents or copies of documents required to be executed and delivered to the Purchaser hereunder having been so executed and delivered;
8.1.5 all of the terms, covenants and conditions of this Agreement required to be complied with or performed by the Company and the Shareholders at or prior to the Completion having been complied with or performed;
8.1.6 there not having occurred:
(a) any material adverse change in the financial position or condition of the Company or the Purchaser, its liabilities or its assets or any damage, loss or other change in circumstances materially and adversely affecting the Company or the Purchaser, the Business or the assets of the Company or the Company’s right to carry on the Business, other than changes in the ordinary course of business, none of which have been materially adverse to the Company or the Purchaser; or
(b) any damage, destruction, loss or other event, including changes to any laws or statutes applicable to the Purchaser, the Company or the Business (whether or not covered by insurance) materially and adversely affecting the Purchaser, the Company, the Business or the assets of the Company;
8.1.7 the transactions contemplated hereby having been approved by any regulatory authorities having jurisdiction over the transactions contemplated in this Agreement, if applicable;
8.1.8 there being no disclosures in any draft Disclosure Letter delivered to the Purchaser on or before the Completion Date which will have, or may be likely to have in the sole discretion of the Purchaser, a material adverse effect upon the value of the Company and/ or the Business or which in the sole discretion of the Purchaser, may adversely effect the Company’s ability to deliver the Business Plan or which in the sole discretion of the Purchaser, may have the effect of altering or amending any of the Company’s and the Shareholders’ obligations or commitments pursuant to this Agreement; and
8.1.9 the delivery of the Company Financial Statements;
8.2 Subject to the Purchaser having fulfilled Condition 8.1.2 above, it shall be entitled to waive fulfillment of any of the conditions precedent to Completion including waiver of any of the requirements set out in Clauses 3.1, 3.2 Schedule 7 with the exception of the obligation imposed on the Purchaser in Schedule 7 para 13. Any such waiver shall be exercised by service of a notice in writing by the Purchaser on the Company in accordance with Clause 19 and 3.3following service of such notice the condition precedent referred to in the notice shall be deemed to have been fulfilled with immediate effect.
8.3 Completion shall take place on a date to be agreed between the Parties being a date which shall be not earlier than 2 Business Days and not later than 10 Business Days after the date when all of the conditions precedent set forth in Section 8.1 have been fulfilled. If the Parties fail to agree upon a date which is within the aforementioned 10 Business Day period, Completion shall take place on the Completion Date.
5.2. The obligations a date which shall be 15 Business Days after fulfillment of each of the Parties under Clause 5.3 below are interdependent of each other. The Completion shall not occur unless all of the obligations specified conditions precedent to Completion set forth in Section 8.1 or if such date is not a Business Day the first Business Day thereafter.
8.4 If Completion has not occurred within a period of five months from the date hereof due to non fulfillment of any one or more of the conditions precedent to Completion set out in Clause 5.38.1 above and the Purchaser has not served a notice pursuant to 16.2, have been simultaneously complied with and are fully effective.
5.3. On the Completion Datethen:
(i) Subject to deductions pursuant to Clause 4.4, 8.4.1 the Purchaser shall remit be entitled to serve notice on the Purchase Consideration (in immediately available funds) Company and the Shareholders calling upon them to meet and discuss actions which can be taken to fulfill the outstanding condition or conditions precedent which is or are preventing Completion from taking place; and
8.4.2 the Company shall be entitled to serve an equivalent notice, to the Seller’s Bank Account.
(ii) The Seller shall (a) provide to its Depository Participant duly executed DP Instructions notice described in the prescribed form for the transfer of the Sale Shares to the Demat Account of the Purchaser (details of which shall be provided to the Seller in writing as soon as practicable after the Execution Date); (b) procure its Depository Participant to duly acknowledge such DP Instructions; (c) deliver a copy of such acknowledgement to the Purchaser; and (d) use best endeavours to procure credit of the Sale Shares to the Demat Account of 8.4.1, on the Purchaser.
(iii) The Seller shall8.5 Following service of a notice pursuant to Clause 8.4 the Parties and or their representatives shall meet to discuss, in good faith, actions which can be taken to resolve the extent it is able to do so through exercise of its voting rights, procure that a Board meeting is held at difficulties which are preventing Completion from taking place. If the following business shall be transacted:
(a) the appointment of directors nominated by the Purchaser on the Board shall be approved; and
(b) an extra-ordinary general meeting of the shareholders of the Company to approve the matters set out in Clause 5.3(iii)(a) and the amendment of the Articles of Association shall be convened.
5.4. This Agreement may be terminated on or prior to the Completion Date as follows:
(i) By the mutual written consent of the Purchaser and the Seller.
(ii) By the Seller, upon written notice to the Purchaser, if the conditions set out in Clauses 3.1 and 3.3 Parties either have not been satisfied (met or satisfied subject only to Completion where applicable) or waived (where applicable) on or before 270 (two hundred seventy) days have not resolved such difficulties within a period of 28 Business Days from the Execution Date or such later date as may be mutually agreed between the Parties in writing (“Long Stop Date”); provided that the Seller of service of a Clause 8.4 notice they shall not be entitled to terminate serve notice terminating this Agreement pursuant to this Clause 5.4(ii) if Seller’s breach of this Agreement has prevented or materially delayed the consummation of the Transactions (which term for the purposes of this Clause 5.4(ii) shall not include the Financing);
(iii) By the Purchaser, upon written notice to the Seller, if the conditions set out in Clauses 3.2 and 3.3 have not been satisfied (or satisfied subject only to Completion where applicable) or waived (where applicable) on or before the Long Stop Date; provided that the Purchaser shall not be entitled to terminate this Agreement pursuant to this Clause 5.4(iii) if Purchaser’s breach of this Agreement has prevented or materially delayed the consummation of the Transactions.
(iv) By the Seller (if the Seller is not in material breach of the Seller Warranties, covenants or agreements under this Agreement so as to cause any of the conditions set forth in Clause 3.2 and/or 3.3(i) not to be satisfied), upon written notice to the Purchaser, if there has been a material inaccuracy of any statement or warranty, or any unremedied material breach of a covenant or other agreement, of the Purchaser contained in this Agreement, which violation, breach or inaccuracy would cause any of the conditions set forth in Clause 3.1 and/or 3.3 not to be satisfied as of the Completion Date, and such violation, breach or inaccuracy has not been waived by the Seller or cured by the Purchaser within 20 (twenty) Business Days after receipt by the Purchaser of written notice thereof from the Seller or is not reasonably capable of being cured prior to the Long Stop Date.
(v) By the Purchaser (if the Purchaser is not in material breach of the Purchaser Warranties, covenants or agreements under this Agreement so as to cause any of the conditions set forth in Clause 3.1 and/or 3.3 not to be satisfied), upon written notice to the Seller, if there has been a material inaccuracy of any statement or warranty, or any unremedied material breach of a covenant or other agreement, of the Seller contained in this Agreement, which violation, breach or inaccuracy would cause any of the conditions set forth in Clauses 3.2 and/or 3.3(i) not to be satisfied as of the Completion Date, and such violation, breach or inaccuracy has not been waived by the Purchaser or cured by the Seller within 20 (twenty) Business Days after receipt by the Seller of written notice thereof from the Purchaser or is not reasonably capable of being cured prior to the Long Stop Date.
(vi) By the Seller or the Purchaser, upon written notice to the other, if a court of competent jurisdiction or any other Governmental Authority shall have issued a final, non-appealable order preventing or otherwise prohibiting the consummation of the Transactions.
5.5. If this Agreement is terminated prior to Completion in accordance with Clause 5.4 above,Clause16.3.
(i) this Agreement 8.6 On Completion, which shall become void take place at the offices of the Purchaser’s Lawyers
8.6.1. the Shareholders shall transfer their Acquisition Shares with full title guarantee, free from any Encumbrances and of no further force together with all rights that attach, or may in future attach, to them including the right to receive all dividends and effect; provideddistributions declared, however, that made or paid on them on or after the provisions date of this Clause 5.5 and Clauses 1 (Definitions and Interpretation), 11 (Announcements and Confidentiality), 12 (Notices), 13 (Governing Law, Disputes and Jurisdiction), 14.1 (Entire Agreement), 14.6 (Variation), 14.7 (No Assignment), 14.8 (Waiver), 14.9 (Severability), 14.10 (Supersession) and 14.11 (Expenses) shall survive the termination of this Agreement indefinitely and that nothing herein shall relieve any Party from any liability for fraud or any breach of the provisions of this Agreement prior to such termination; and
(ii) if applicable, the Observer shall no longer be entitled to attend the meetings of the Board (or any committee thereof) and the nominees of the Purchaser appointed on the Board in accordance with Clause 6.2 shall resign with immediate effect.;
Appears in 1 contract
Completion. 5.1. 4.1 Subject to the conditions set out in Clauses 3.1clause 5, 3.2 and 3.3, Completion shall completion will take place on the Completion DateDate at the offices of the Treasurer, ▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇.
5.2. The obligations of each 4.2 On the Completion Date CBA (at the direction of the Parties under Clause 5.3 below are interdependent Treasurer) will pay to the Bank the amount of each other. The Completion shall not occur unless $194 000 000 (being the consideration payable by the Treasurer for the acquisition of all of the obligations specified rights referred to in Clause 5.3, have been simultaneously complied with clause 28 of the State Bank (Succession of Commonwealth Bank) Bill 1990 marked Exhibit "C" and are fully effective.
5.3. On initialled by the parties for identification and which amount will be deducted from the amount payable by CBA to the Treasurer pursuant to clause 3.3) at which time the parties will procure that if the same has not occurred prior to the Completion Date:
(a) the Bank will transfer to the Treasurer or his nominee all of the issued capital of Tricontinental Holdings Limited;
(b) the existing directors of Tricontinental Holdings Limited will retire and there will be appointed in place of such directors such persons as the Treasurer may nominate;
(c) SBV Futures Pty Limited and SBV Investment Management Limited will change their names to exclude "SBV"; and
(d) SBV Investment Management Limited ▇▇▇▇ retire as manager of the SBV Multitrust and Commonwealth Management Services Limited will be appointed as manager in its stead.
(a) On or prior to the Completion Date the Treasurer will: Sch. 1
(i) Subject to deductions pursuant to Clause 4.4, negotiate and will procure that his nominee negotiates in good faith with CBA a facility agreement and any other agreements ancillary or collateral thereto for the Purchaser shall remit the Purchase Consideration (in immediately available funds) provision of Finance by CBA to the Seller’s Bank Account.nominee on the terms and conditions outlined in the term sheet marked as Exhibit "D" and initialled by the parties for identification;
(ii) The Seller shall enter into and will procure that the nominee enters into the facility agreement and other agreements referred to in paragraph (a) provide to its Depository Participant duly executed DP Instructions in the prescribed form for the transfer of the Sale Shares to the Demat Account of the Purchaser (details of which shall be provided to the Seller in writing as soon as practicable after the Execution Datei); (b) procure its Depository Participant to duly acknowledge such DP Instructions; (c) deliver a copy of such acknowledgement to the Purchaser; and (d) use best endeavours to procure credit of the Sale Shares to the Demat Account of the Purchaser.;
(iii) The Seller shall, negotiate in good faith with CBA a guarantee in respect of the facility agreement referred to in paragraph (i) and all securities issued thereunder on the extent it is able to do so through exercise of its voting rights, procure that a Board meeting is held at which terms and conditions outlined in the following business shall be transacted:aforementioned term sheet;
(aiv) enter into the appointment of directors nominated by the Purchaser on the Board shall be approvedguarantee referred to in paragraph (iii); and
(v) procure that all Financial Indebtedness of each member of the Trico Group to any member of the SBV Group other than the Financial Indebtedness under the facility agreement referred to in paragraph (i) is repaid or discharged in full.
(b) an extra-ordinary general meeting of CBA will in good faith negotiate and enter into the shareholders of the Company facility agreement and other agreements referred to approve the matters set out in Clause 5.3(iii)(aclause 4.3(a)(i) and the amendment of the Articles of Association shall be convened.
5.4. This Agreement may be terminated guarantee referred to in clause 4.3(a)(iii) on or prior to the Completion Date and CBA will subject to the terms of the facility agreement advance to the nominee on the Completion Date the sum demanded by the nominee up to $2 300 000 000 pursuant to that facility agreement.
4.4 On or prior to the Completion Date the Treasurer will procure that: Sch. 1
(a) the CWA will pay to the Bank such amount as followswould, if invested by the Bank on the Completion Date at the rates applying to the respective Obligations (as defined in the Assumption Agreement) for terms ending on the maturity date of the respective Obligations (as defined in the Assumption Agreement), result in the Bank receiving sufficient funds on such maturity date to enable the Bank or CBA as the successor of the Bank to pay out all Obligations (as defined in the Assumption Agreement) then assumed by the CWA pursuant to the Assumption Agreement;
(b) the Assumption Agreement is lawfully terminated; and
(c) neither the CWA nor any member of the SBV Group has any outstanding liability, responsibility or obligation under the Assumption Agreement or any other agreement, arrangement or understanding collateral or ancillary to the Assumption Agreement.
4.5 On or prior to the Completion Date, the Treasurer will procure that all assignments of Indebtedness (as defined in the Trico Deed) and declarations of trust in respect of such Indebtedness that have been made to any member of the SBV Group pursuant to the Trico Deed will be annulled or reassigned.
4.6 On or prior to the Completion Date the Treasurer will procure that the Bank and SBV Staff Superannuation Pty Ltd enters into a trust deed in the form of the draft trust deed marked as Exhibit "E" and initialled by the parties for identification or such other form as may be agreed between the parties, whereupon CBA will execute that trust deed.
4.7 On or prior to the Completion Date the Treasurer will, and will procure that the Bank will, enter into a Deed amending the ▇▇▇▇▇▇ Deed in the form of the draft Deed marked Exhibit "F" and initialled by the parties for identification or such other form as may be agreed between the parties.
4.8 On or prior to the Completion Date the Treasurer will, and will procure that the relevant parties will, enter into a Deed of Variation in the form of the draft Deed marked Exhibit "G" and initialled by the parties for identification or such other form as may be agreed between the parties.
(a) On or prior to the Completion Date the Treasurer will:
(i) By procure that the mutual written consent Bank will make a Past Interest Notice of Claim (as defined in the Purchaser SBV Deed) for an amount of not less than $51 700 000 and the Seller.Treasurer will pay to the Bank by bank cheque the amount the subject of that Past Interest Notice of Claim; Sch. 1
(ii) By direct the Seller, upon written notice Bank not to the Purchaser, if the conditions set out in Clauses 3.1 and make any assignments or declare any trusts under clause 3.3 have not been satisfied (or satisfied subject only to Completion where applicable) or waived (where applicable) on or before 270 (two hundred seventy) days from the Execution Date or such later date as may be mutually agreed between the Parties in writing (“Long Stop Date”); provided that the Seller shall not be entitled to terminate this Agreement pursuant to this Clause 5.4(ii) if Seller’s breach of this Agreement has prevented or materially delayed the consummation of the Transactions (which term for SBV Deed that might otherwise have been required as a consequence of the purposes payment of this Clause 5.4(ii) shall not include the Financing);that Past Interest Notice of Claim; and
(iii) By release the PurchaserBank from any obligation under clause 6(a) of the SBV Deed that it might otherwise have had as a consequence of the payment of that Past Interest Notice of Claim; and, upon written notice notwithstanding the matters referred to in paragraphs (ii) and (iii) above or any other matter, the payment by the Treasurer will not operate as a discharge of any Indebtedness or Interest (as defined in the SBV Deed) and the Treasurer will treat the payment made pursuant to paragraph (i) above as having been made pursuant to and in accordance with his obligations under the SBV Deed.
(b) Upon payment of the amount referred to in clause 4.9(a)(i), the Bank and CBA as the successor of the Bank will release the Treasurer from any obligations under the SBV Deed or Warranty 24 of this Agreement to make any further payments relating to the Seller, if Interest on Indebtedness (as defined in the conditions set out in Clauses 3.2 and 3.3 have not been satisfied (or satisfied subject only to Completion where applicableSBV Deed) or waived (where applicable) accrued on or before 30 June 1990 the Long Stop Date; provided subject of that the Purchaser shall not be entitled to terminate this Agreement pursuant to this Clause 5.4(iii) if Purchaser’s breach Past Interest Notice of this Agreement has prevented or materially delayed the consummation of the TransactionsClaim.
(iv) By the Seller (if the Seller is not in material breach of the Seller Warranties, covenants 4.10 On or agreements under this Agreement so as to cause any of the conditions set forth in Clause 3.2 and/or 3.3(i) not to be satisfied), upon written notice to the Purchaser, if there has been a material inaccuracy of any statement or warranty, or any unremedied material breach of a covenant or other agreement, of the Purchaser contained in this Agreement, which violation, breach or inaccuracy would cause any of the conditions set forth in Clause 3.1 and/or 3.3 not to be satisfied as of the Completion Date, and such violation, breach or inaccuracy has not been waived by the Seller or cured by the Purchaser within 20 (twenty) Business Days after receipt by the Purchaser of written notice thereof from the Seller or is not reasonably capable of being cured prior to the Long Stop Date.
(v) By Completion Date the Purchaser (if Treasurer will, and will procure that the Purchaser is not Bank will, enter into a Deed of Release in material breach the form of the Purchaser Warranties, covenants or agreements under this Agreement so as to cause any of the conditions set forth in Clause 3.1 and/or 3.3 not to be satisfied), upon written notice to the Seller, if there has been a material inaccuracy of any statement or warranty, or any unremedied material breach of a covenant or other agreement, of the Seller contained in this Agreement, which violation, breach or inaccuracy would cause any of the conditions set forth in Clauses 3.2 and/or 3.3(i) not to be satisfied as of the Completion Date, draft Deed marked Exhibit "H" and such violation, breach or inaccuracy has not been waived initialled by the Purchaser parties for identification or cured by such other form as may be agreed between the Seller within 20 (twenty) Business Days after receipt by the Seller of written notice thereof from the Purchaser or is not reasonably capable of being cured prior to the Long Stop Dateparties.
(vi) By the Seller or the Purchaser, upon written notice to the other, if a court of competent jurisdiction or any other Governmental Authority shall have issued a final, non-appealable order preventing or otherwise prohibiting the consummation of the Transactions.
5.5. If this Agreement is terminated prior to Completion in accordance with Clause 5.4 above,
(i) this Agreement shall become void and of no further force and effect; provided, however, that the provisions of this Clause 5.5 and Clauses 1 (Definitions and Interpretation), 11 (Announcements and Confidentiality), 12 (Notices), 13 (Governing Law, Disputes and Jurisdiction), 14.1 (Entire Agreement), 14.6 (Variation), 14.7 (No Assignment), 14.8 (Waiver), 14.9 (Severability), 14.10 (Supersession) and 14.11 (Expenses) shall survive the termination of this Agreement indefinitely and that nothing herein shall relieve any Party from any liability for fraud or any breach of the provisions of this Agreement prior to such termination; and
(ii) if applicable, the Observer shall no longer be entitled to attend the meetings of the Board (or any committee thereof) and the nominees of the Purchaser appointed on the Board in accordance with Clause 6.2 shall resign with immediate effect.
Appears in 1 contract
Sources: Agreement for the Merger of State Bank of Victoria and Commonwealth Bank of Australia
Completion. 5.1. Subject to the conditions set out in Clauses 3.1, 3.2 and 3.3, 6.1 Completion shall take place on the third Business Day following service of the first (in time) Option Exercise Notice to be served at the offices of the Seller’s Solicitors (or wherever else and whatever time the Parties agree in writing). At Completion, the Parties shall perform all (and not part only) of their respective Completion Dateobligations set out in Schedule 4.
5.2. 6.2 Notwithstanding Completion, each provision of this Agreement (and any other document referred to in it) not performed at or before Completion but which remains capable of performance, the Warranties (including, for these purposes, the Purchaser’s warranties set out in Part 2 of Schedule 3) and all covenants and other undertakings contained in or entered into pursuant to this Agreement will remain in full force and effect and (except as otherwise expressly provided) without limit in time.
6.3 The obligations Seller declares that so long as it (or any nominee acting for it) remains the registered holder of each any of the Parties under Clause 5.3 below are interdependent Shares after Completion, it will (and will procure that any such nominee will):-
6.3.1 hold those Shares and all dividends and other distributions in respect of each other. them (other than the Permitted Dividends), and all other rights arising out of or in connection with them, in trust for the Purchaser and the Purchaser’s successors in title; and
6.3.2 other than the Permitted Dividends, at all times deal with and dispose of those Shares, and all such dividends, distributions and rights attaching to them, as the Purchaser or any such successor may direct.
6.4 The Purchaser shall procure that, as soon as reasonably practicable following Completion, the Company shall cease to bear a name (whether trading or otherwise) containing the expression “Talisman”, or any other expression likely to suggest a connection with the Talisman group of companies.
6.5 The Purchaser shall cause the Company to cease following Completion to use any stationery, invoice, forms, seals, trade marks, logos or any other similar articles or symbols showing the expression “Talisman” or any other expression likely to suggest a connection with the Talisman group of companies.
6.6 The Seller shall not occur unless all procure that an amount equal to the Completion Date Intercompany Receivable is paid to the Company by the relevant member or members of the obligations specified in Clause 5.3, have been simultaneously complied with and are fully effectiveSeller’s Group within ten (10) Business Days of agreement or final determination of the Completion Statements pursuant hereto.
5.3. On 6.7 The Seller shall deliver or make available to the Purchaser the accounting and other books and records of the Company insofar as they relate to the Licence Interests.
6.8 If at any time prior to Completion Datethere occurs any of the following:
6.8.1 a Catastrophic Event;
6.8.2 the Company enters into a scheme of arrangement or voluntary arrangement with any of its creditors or an administrative or other receiver is appointed by any person over the whole or any part of the business or assets of the Company; or
6.8.3 the Seller (ior, in the case of legal title only, its nominee) Subject ceases to deductions have sole legal and beneficial ownership of the Shares (other than pursuant to Clause 4.4a Share Buy-Back), or there is a breach of the Warranty contained in paragraphs 5.1 or 5.8 of Part 1 of Schedule 3, the Purchaser shall remit the Purchase Consideration (in immediately available funds) to the Seller’s Bank Account.
(ii) The Seller shall (a) provide to its Depository Participant duly executed DP Instructions in the prescribed form for the transfer of the Sale Shares to the Demat Account of the Purchaser (details of which shall be provided to the Seller in writing as soon as practicable after the Execution Date); (b) procure its Depository Participant to duly acknowledge such DP Instructions; (c) deliver a copy of such acknowledgement to the Purchaser; and (d) use best endeavours to procure credit of the Sale Shares to the Demat Account of the Purchaser.
(iii) The Seller shall, to the extent it is able to do so through exercise of its voting rights, procure that a Board meeting is held at which the following business shall be transacted:
(a) the appointment of directors nominated by the Purchaser on the Board shall be approved; and
(b) an extra-ordinary general meeting of the shareholders of the Company to approve the matters set out in Clause 5.3(iii)(a) and the amendment of the Articles of Association shall be convened.
5.4. This Agreement may be terminated on or prior to the Completion Date as follows:
(i) By the mutual written consent of the Purchaser and the Seller.
(ii) By the Seller, upon written notice to the Purchaser, if the conditions set out in Clauses 3.1 and 3.3 have not been satisfied (or satisfied subject only to Completion where applicable) or waived (where applicable) on or before 270 (two hundred seventy) days from the Execution Date or such later date as may be mutually agreed between the Parties in writing (“Long Stop Date”); provided that the Seller shall not be entitled to terminate this Agreement pursuant by service of notice in writing to this Clause 5.4(ii) if Seller’s breach of this Agreement has prevented or materially delayed the consummation Seller within 10 Business Days of the Transactions date of such occurrence.
6.9 If Completion does not take place as a result of a Party’s (which term for the purposes of this Clause 5.4(ii) shall not include the Financing);“Defaulting Party”):
(iiia) By failure to satisfy the Purchaserprovisions of Clause 4.4, upon written notice save where that failure relates to the Sellernon-provision by the Purchaser or the Company of a letter of credit, if where the conditions value of that letter of credit for any Hive-In Licence Interest is greater than the equity share to be acquired by the Company of the current estimated decommissioning cost as set out in Clauses 3.2 and 3.3 have not been satisfied Schedule 1 to the Hive-In Agreement; or
(or satisfied subject only b) failure to Completion where applicable) or waived (where applicable) complete on or before the Long Stop Date; provided that the Purchaser shall not be entitled to terminate this Agreement pursuant to this Clause 5.4(iii) if Purchaser’s breach of this Agreement has prevented or materially delayed the consummation of the Transactions.
(iv) By the Seller (if the Seller is not in material breach of the Seller Warranties, covenants or agreements under this Agreement so as to cause any of the conditions date set forth in Clause 3.2 and/or 3.3(i) not to be satisfied), upon written notice to the Purchaser, if there has been a material inaccuracy of any statement or warranty, or any unremedied material breach of a covenant or other agreement, of the Purchaser contained in this Agreement, which violation, breach or inaccuracy would cause any of the conditions set forth in Clause 3.1 and/or 3.3 not to be satisfied as of the Completion Date, and such violation, breach or inaccuracy has not been waived by the Seller or cured by the Purchaser within 20 (twenty) Business Days after receipt by the Purchaser of written notice thereof from the Seller or is not reasonably capable of being cured prior to the Long Stop Date.
(v) By the Purchaser (if the Purchaser is not in material breach of the Purchaser Warranties, covenants or agreements under this Agreement so as to cause any of the conditions set forth in Clause 3.1 and/or 3.3 not to be satisfied), upon written notice to the Seller, if there has been a material inaccuracy of any statement or warranty, or any unremedied material breach of a covenant or other agreement, of the Seller contained in this Agreement, which violation, breach or inaccuracy would cause any of the conditions set forth in Clauses 3.2 and/or 3.3(i) not to be satisfied as of the Completion Date, and such violation, breach or inaccuracy has not been waived by the Purchaser or cured by the Seller within 20 (twenty) Business Days after receipt by the Seller of written notice thereof from the Purchaser or is not reasonably capable of being cured prior to the Long Stop Date.
(vi) By the Seller or the Purchaser, upon written notice to the other, if a court of competent jurisdiction or any other Governmental Authority shall have issued a final, non-appealable order preventing or otherwise prohibiting the consummation of the Transactions.
5.5. If this Agreement is terminated prior to down for Completion in accordance with Clause 5.4 above,
6.1 (i) this Agreement shall become void and of no further force and effect; provided, however, that except where the provisions of this Clause 5.5 and Clauses 1 (Definitions and Interpretation), 11 (Announcements and Confidentiality), 12 (Notices), 13 (Governing Law, Disputes and Jurisdiction), 14.1 (Entire Agreement), 14.6 (Variation), 14.7 (No Assignment), 14.8 (Waiver), 14.9 (Severability), 14.10 (Supersession) and 14.11 (Expenses) shall survive the termination terms of this Agreement indefinitely permit otherwise) after the Conditions have been satisfied and an Option has been exercised; the Defaulting Party shall pay to the non-Defaulting Party a sum equal to US$25,000,000 (twenty five million US Dollars) as liquidated damages. The Parties acknowledge and agree that nothing herein any payment made under this Clause 6.9 represents a fair and reasonable sum and a genuine pre-estimate of the loss attributable to the non-Defaulting Party’s cost and time in entering into this Agreement and is not a penalty. The Parties acknowledge that any payment by a Defaulting Party pursuant to this clause shall relieve be without prejudice to the right of the non-Defaulting Party to seek any Party from any liability for fraud or any other financial remedy in respect of a breach of Clause 4.4 or Clause 6.1 whether in contract, tort, common law, statute or equity.
6.10 The Purchaser hereby covenants to procure that the provisions Company will enter into an election with the Seller (or such of this Agreement prior its Affiliates as the Seller may nominate) under Section 179A of the Taxation of Chargeable Gains ▇▇▇ ▇▇▇▇ (“TCGA”) such that any gain or loss arising under Section 179 will be treated as accruing in the Seller (or its Affiliate, as the case may be). The Seller hereby covenants that it will or, where applicable, will procure that, its Affiliate will join in any such election.
6.11 In the event that Conclusion of Determination has not occurred by the Completion Date the Purchaser shall procure that unless consented to by the Seller (such terminationconsent not to be unreasonably withheld or delayed) the Company shall:
6.11.1 carry out its operations and the conduct of the Determination in accordance with good oil and gas field practice, and shall not agree to any revised Tract Participations pursuant to Clause 3.6 of the Goldeneye UUOA;
6.11.2 keep the Seller appraised of the progress of the Determination and to the extent lawful and practicable in the circumstances consult with the Seller in relation to any material decision in connection with the Determination;
6.11.3 make available or allow the Seller access to material information, data and other material relevant to the Determination (and the Purchaser hereby agrees that the Seller may retain copies of any information relevant to the Determination); and
(ii) if applicable, 6.11.4 appoint the Observer shall no longer be entitled to attend Seller as its agent for the meetings purposes of carrying out all technical and other related work in connection with the process set out in Schedules 4 and 5 of the Board Goldeneye UUOA as regards the Determination and the Seller hereby agrees to so act provided that the Seller shall have no liability to the Purchaser therefor.
6.12 The Seller and the Purchaser shall execute all such other documents and do all acts and things as may be reasonably required in order to effect the disposal of the Shares to the Purchaser and otherwise carry out the true intent of this Agreement. The Seller and the Purchaser acknowledge that it is their intention that upon Completion the only assets owned by the Company should be the Licence Interests and the Hive-In Licence Interests. If at any time after Completion it shall be discovered that any other assets are owned or controlled by the Company then the Purchaser shall procure that such assets be transferred to the Seller (or any committee thereofas it may direct) and the nominees of the Purchaser appointed on the Board in accordance with Clause 6.2 shall resign with immediate effectfor nil consideration.
Appears in 1 contract
Completion. 5.1. 5.1 Subject to fulfilment of the conditions set out in Clauses 3.1Conditions, 3.2 and 3.3, the First Tranche Completion shall take place on the First Tranche Completion DateDate at the office of the Company at ▇▇/▇., ▇▇▇▇▇▇▇▇ ▇▇, ▇▇. ▇▇ ▇▇▇▇▇ ▇▇▇ Road, ▇▇▇▇ ▇▇▇▇ ▇▇▇▇, Hong Kong, when all (but not some only) of the events described in Clauses 5.2 and 5.3 shall occur.
5.2. The obligations of each of 5.2 At the Parties under Clause 5.3 below are interdependent of each other. The Completion shall not occur unless all of the obligations specified in Clause 5.3, have been simultaneously complied with and are fully effective.
5.3. On the Completion Date:
(i) Subject to deductions pursuant to Clause 4.4First Tranche Completion, the Purchaser shall remit the Purchase Consideration (in immediately available funds) to the Seller’s Bank Account.
(ii) The Seller shall (a) provide to its Depository Participant duly executed DP Instructions in the prescribed form for the transfer of the Sale Shares to the Demat Account of the Purchaser (details of which shall be provided to the Seller in writing as soon as practicable after the Execution Date); (b) procure its Depository Participant to duly acknowledge such DP Instructions; (c) deliver a copy of such acknowledgement to the Purchaser; and (d) use best endeavours to procure credit of the Sale Shares to the Demat Account of the Purchaser.
(iii) The Seller Company shall, to the extent it is able to do so through exercise of its voting rights, procure that a Board meeting is held at which the following business shall be transacted:
(a) deliver or cause to be delivered to the appointment Subscriber or to the order of directors nominated the Subscriber a certified copy of the board resolutions of the Company approving, amongst others,
(i) the execution and completion of this Agreement;
(ii) the allotment and issue of the First Tranche Subscription Shares in accordance with this Agreement and the entry of the Subscriber (or its nominees) in the register of members in respect of such Shares; and
(iii) any necessary actions to be undertaken by the Purchaser on Directors for the Board shall be approvedpurpose of giving effect to the above board resolutions; and
(b) an extra-ordinary general meeting allot and issue the First Tranche Subscription Shares to the Subscriber (or its nominee(s)) and shall promptly cause to be registered the Subscriber (or its nominee(s)) onto the register of members of the shareholders Company, and deliver to the Subscriber (or its nominee(s)) definitive share certificates in respect of the First Tranche Subscription Shares in the name of the Subscriber (or its nominee(s)).
5.3 At the First Tranche Completion, the Subscriber shall:
(a) pay or cause to be paid to the Company to approve the matters First Tranche Consideration as set out in Clause 5.3(iii)(a3.1;
(b) deliver or cause to be delivered to the Company application letter in respect of the First Tranche Subscription Shares to the Company; and
(c) deliver or cause to be delivered to the Company a certified copy of the resolution of the board of directors of the Subscriber and/or its nominee, approving, amongst others, the application for the First Tranche Subscription Shares.
5.4 Neither the Subscriber nor the Company shall be obliged to complete this Agreement or perform any obligations hereunder unless, at the First Tranche Completion, the other Party comply fully with the requirements of Clause 5.2 or Clause 5.3 (as the case may be).
5.5 Subject to fulfilment of the Conditions and the amendment First Tranche Completion having taken place in accordance with the terms of this Agreement, the Second Tranche Completion shall take place on the Second Tranche Completion Date at the office of the Articles Company at ▇▇/▇., ▇▇▇▇▇▇▇▇ ▇▇, ▇▇. ▇▇ ▇▇▇▇▇ ▇▇▇ Road, ▇▇▇▇ ▇▇▇▇ ▇▇▇▇, Hong Kong, when all (but not some only) of Association the events described in Clauses 5.6 and 5.7 shall be convenedoccur.
5.4. This Agreement may be terminated on or prior to 5.6 At the Completion Date as followsSecond Tranche Completion, the Company shall:
(ia) By deliver or cause to be delivered to the mutual written consent Subscriber or to the order of the Purchaser and the Seller.
(ii) By the Seller, upon written notice to the Purchaser, if the conditions set out in Clauses 3.1 and 3.3 have not been satisfied (or satisfied subject only to Completion where applicable) or waived (where applicable) on or before 270 (two hundred seventy) days from the Execution Date or such later date as may be mutually agreed between the Parties in writing (“Long Stop Date”); provided that the Seller shall not be entitled to terminate this Agreement pursuant to this Clause 5.4(ii) if Seller’s breach of this Agreement has prevented or materially delayed the consummation Subscriber a certified copy of the Transactions (which term for the purposes of this Clause 5.4(ii) shall not include the Financing);
(iii) By the Purchaser, upon written notice to the Seller, if the conditions set out in Clauses 3.2 and 3.3 have not been satisfied (or satisfied subject only to Completion where applicable) or waived (where applicable) on or before the Long Stop Date; provided that the Purchaser shall not be entitled to terminate this Agreement pursuant to this Clause 5.4(iii) if Purchaser’s breach of this Agreement has prevented or materially delayed the consummation board resolutions of the Transactions.
(iv) By the Seller (if the Seller is not in material breach of the Seller WarrantiesCompany approving, covenants or agreements under this Agreement so as to cause any of the conditions set forth in Clause 3.2 and/or 3.3(i) not to be satisfied), upon written notice to the Purchaser, if there has been a material inaccuracy of any statement or warranty, or any unremedied material breach of a covenant or other agreement, of the Purchaser contained in this Agreement, which violation, breach or inaccuracy would cause any of the conditions set forth in Clause 3.1 and/or 3.3 not to be satisfied as of the Completion Date, and such violation, breach or inaccuracy has not been waived by the Seller or cured by the Purchaser within 20 (twenty) Business Days after receipt by the Purchaser of written notice thereof from the Seller or is not reasonably capable of being cured prior to the Long Stop Date.
(v) By the Purchaser (if the Purchaser is not in material breach of the Purchaser Warranties, covenants or agreements under this Agreement so as to cause any of the conditions set forth in Clause 3.1 and/or 3.3 not to be satisfied), upon written notice to the Seller, if there has been a material inaccuracy of any statement or warranty, or any unremedied material breach of a covenant or other agreement, of the Seller contained in this Agreement, which violation, breach or inaccuracy would cause any of the conditions set forth in Clauses 3.2 and/or 3.3(i) not to be satisfied as of the Completion Date, and such violation, breach or inaccuracy has not been waived by the Purchaser or cured by the Seller within 20 (twenty) Business Days after receipt by the Seller of written notice thereof from the Purchaser or is not reasonably capable of being cured prior to the Long Stop Date.
(vi) By the Seller or the Purchaser, upon written notice to the other, if a court of competent jurisdiction or any other Governmental Authority shall have issued a final, non-appealable order preventing or otherwise prohibiting the consummation of the Transactions.
5.5. If this Agreement is terminated prior to Completion in accordance with Clause 5.4 aboveamongst others,
(i) the allotment and issue of the Second Tranche Subscription Shares in accordance with this Agreement shall become void and of no further force and effect; provided, however, that the provisions of this Clause 5.5 and Clauses 1 (Definitions and Interpretation), 11 (Announcements and Confidentiality), 12 (Notices), 13 (Governing Law, Disputes and Jurisdiction), 14.1 (Entire Agreement), 14.6 (Variation), 14.7 (No Assignment), 14.8 (Waiver), 14.9 (Severability), 14.10 (Supersession) and 14.11 (Expenses) shall survive the termination of this Agreement indefinitely and that nothing herein shall relieve any Party from any liability for fraud or any breach entry of the provisions Subscriber (or its nominees) in the register of this Agreement prior to members in respect of such terminationShares; and
(ii) if applicableany necessary actions to be undertaken by the Directors for the purpose of giving effect to the above board resolutions; and
(b) allot and issue the Second Tranche Subscription Shares to the Subscriber (or its nominee(s)) and shall promptly cause to be registered the Subscriber (or its nominee(s)) onto the register of members of the Company, and deliver to the Subscriber (or its nominee(s)) definitive share certificates in respect of the Second Tranche Subscription Shares in the name of the Subscriber (or its nominee(s)).
5.7 At the Second Tranche Completion, the Observer shall no longer Subscriber shall:
(a) pay or cause to be entitled paid to attend the meetings Company the Second Tranche Consideration as set out in Clause 3.2;
(b) deliver or cause to be delivered to the Company application letter in respect of the Board Second Tranche Subscription Shares to the Company; and
(c) deliver or any committee thereof) and cause to be delivered to the nominees Company a certified copy of the Purchaser appointed on resolution of the Board in accordance board of directors of the Subscriber and/or its nominee, approving, amongst others, the application for the Second Tranche Subscription Shares.
5.8 Neither the Subscriber nor the Company shall be obliged to complete this Agreement or perform any obligations hereunder unless, at the Second Tranche Completion, the other Party comply fully with the requirements of Clause 6.2 shall resign with immediate effect5.6 or Clause 5.7 (as the case may be).
Appears in 1 contract
Sources: Subscription Agreement
Completion. 5.1. Subject to 5.1 Completion of the conditions set out in Clauses 3.1, 3.2 sale and 3.3, Completion purchase of each Tranche of the RHL Shares shall take place on the Completion Date.
5.2. The obligations of each of the Parties under Clause 5.3 below are interdependent of each other. The Completion shall not occur unless all of the obligations specified in Clause 5.3, have been simultaneously complied with and are fully effective.
5.3. On the Completion Date:
(i) Subject to deductions pursuant to Clause 4.4, the Purchaser shall remit the Purchase Consideration (in immediately available funds) to the Seller’s Bank Account.
(ii) The Seller shall (a) provide to its Depository Participant duly executed DP Instructions in the prescribed form for the transfer of the Sale Shares to the Demat Account of the Purchaser (details of which shall be provided to the Seller in writing as soon as practicable after the Execution Date); (b) procure its Depository Participant to duly acknowledge such DP Instructions; (c) deliver a copy of such acknowledgement to the Purchaser; and (d) use best endeavours to procure credit of the Sale Shares to the Demat Account of the Purchaser.
(iii) The Seller shall, to the extent it is able to do so through exercise of its voting rights, procure that a Board meeting is held at which the following business shall be transacteddates:
(a) Completion of the appointment sale and purchase of directors nominated by the Purchaser Tranche 1 Shares shall take place on the Board shall be approved; anddate falling 5 Business Days immediately following the Shareholder Approval having been granted;
(b) an extra-ordinary general meeting Completion of the shareholders sale and purchase of the Tranche 2 Shares shall take place on or before 30 August 2024.
(c) Completion of the sale and purchase of the Tranche 3 Shares shall take place on or before 30 September 2024.
(d) The Company shall provide not less than 5 Business Days’ prior notice to approve the matters Seller of the Completion Date for the Tranche 2 Shares and the Tranche 3 Shares.
5.2 Prior to each Completion Date, each of the Seller and the Company shall take such action and give such instructions as are necessary to ensure that (having regard to practical limitations of the CREST system and timings as set out in Clause 5.3(iii)(athe CREST manual issued by Euroclear from time to time) it, and any relevant third party, complies with the amendment provisions of clause 5.3 on the relevant Completion Date. Without prejudice to the foregoing, the Company shall pay the consideration due in respect of that Tranche of RHL Shares by payment of the Articles amount set out in clause 5.4 in respect of Association shall be convened.
5.4. This Agreement may be terminated on or that Tranche to the Company’s Broker’s cash memorandum account with its payment bank by way of electronic transfer of immediately available funds prior to the relevant Completion Date Date.
5.3 On the relevant Completion Date, the sale and purchase of the relevant Tranche of RHL Shares shall be effected within CREST using the delivery versus payment mechanism, as follows:
(ia) By by no later than 10:00 a.m. on the mutual written consent of the Purchaser and the Seller.
(ii) By the SellerCompletion Date, upon written notice to the Purchaser, if the conditions set out in Clauses 3.1 and 3.3 have not been satisfied (or satisfied subject only to Completion where applicable) or waived (where applicable) on or before 270 (two hundred seventy) days from the Execution Date or such later date as may be mutually agreed between the Parties in writing (“Long Stop Date”); provided that the Seller shall not be entitled procure that the RHL Broker (CREST participant ID ‘601’ and member account ID ‘SHCLT’) instructs Euroclear to terminate this Agreement pursuant transfer the relevant Tranche of RHL Shares in CREST to this Clause 5.4(ii) if Seller’s breach of this Agreement has prevented or materially delayed the consummation CREST account of the Transactions Company’s Broker (which term for the purposes of this Clause 5.4(ii) shall not include the Financing);
(iii) By the Purchaser, upon written notice to the Seller, if the conditions set out in Clauses 3.2 CREST Member ID ‘GPP002961’ and 3.3 have not been satisfied (or satisfied subject only to Completion where applicable) or waived (where applicableCREST participant ID ‘KBUAG’) on or before the Long Stop Date; provided that the Purchaser shall not be entitled to terminate this Agreement pursuant to this Clause 5.4(iii) if Purchaser’s breach of this Agreement has prevented or materially delayed the consummation of the Transactions.
(iv) By the Seller (if the Seller is not in material breach of the Seller Warranties, covenants or agreements under this Agreement so as to cause any of the conditions set forth in Clause 3.2 and/or 3.3(i) not to be satisfied), upon written notice to the Purchaser, if there has been a material inaccuracy of any statement or warranty, or any unremedied material breach of delivery versus payment basis with a covenant or other agreement, of the Purchaser contained in this Agreement, which violation, breach or inaccuracy would cause any of the conditions set forth in Clause 3.1 and/or 3.3 not to be satisfied as settlement date of the Completion Date, and such violation, breach or inaccuracy has not been waived by the Seller or cured by the Purchaser within 20 (twenty) Business Days after receipt by the Purchaser of written notice thereof from the Seller or is not reasonably capable of being cured prior to the Long Stop Date.;
(vb) By the Purchaser (if the Purchaser is not in material breach of the Purchaser Warranties, covenants or agreements under this Agreement so as to cause any of the conditions set forth in Clause 3.1 and/or 3.3 not to be satisfied), upon written notice to the Seller, if there has been a material inaccuracy of any statement or warranty, or any unremedied material breach of a covenant or other agreement, of the Seller contained in this Agreement, which violation, breach or inaccuracy would cause any of the conditions set forth in Clauses 3.2 and/or 3.3(i) not to be satisfied as of by no later than 10:00 a.m. on the Completion Date, and the Company shall procure that the Company’s Broker inputs a matching instruction to Euroclear in CREST with a settlement date of the Completion Date to pay the consideration for the relevant tranche of RHL Shares to the payment bank of the RHL Broker, with each such violation, breach or inaccuracy has not been waived by the Purchaser or cured by instruction being given a priority of at least 80.
5.4 The Company shall pay to the Seller within 20 (twenty) Business Days after receipt by the Seller following amounts as consideration in respect of written notice thereof from the Purchaser or is not reasonably capable of being cured prior to the Long Stop Date.
(vi) By the Seller or the Purchaser, upon written notice to the other, if a court of competent jurisdiction or any other Governmental Authority shall have issued a final, non-appealable order preventing or otherwise prohibiting the consummation of the Transactions.
5.5. If this Agreement is terminated prior to Completion each specified Tranche in accordance with Clause 5.4 above,clause 5.3:
(ia) this Agreement shall become void and of no further force and effect; provided, however, that the provisions of this Clause 5.5 and Clauses 1 (Definitions and Interpretation), 11 (Announcements and Confidentiality), 12 (Notices), 13 (Governing Law, Disputes and Jurisdiction), 14.1 (Entire Agreement), 14.6 (Variation), 14.7 (No Assignment), 14.8 (Waiver), 14.9 (Severability), 14.10 (Supersession) and 14.11 (Expenses) shall survive the termination of this Agreement indefinitely and that nothing herein shall relieve any Party from any liability for fraud or any breach £10,182,000 in respect of the provisions Tranche 1 Shares;
(b) £4,746,832.55 in respect of this Agreement prior to such terminationthe Tranche 2 Shares; and
(iic) if applicable, the Observer shall no longer be entitled to attend the meetings £4,746,832.55 in respect of the Board (or any committee thereof) and the nominees of the Purchaser appointed on the Board in accordance with Clause 6.2 shall resign with immediate effectTranche 3 Shares.
Appears in 1 contract
Sources: Share Purchase Agreement
Completion. 5.1. Subject 5.1 The sales and purchases referred to the conditions set out in Clauses 3.1, 3.2 and 3.3, Completion shall take place on the Completion Date.
5.2. The obligations of each of the Parties under Clause 5.3 below are interdependent of each other. The Completion shall not occur unless all of the obligations specified in Clause 5.3, have been simultaneously complied with and are fully effective.
5.3. On the Completion Date:
(i) Subject to deductions pursuant to Clause 4.4, the Purchaser shall remit the Purchase Consideration (in immediately available funds) to the Seller’s Bank Account.
(ii) The Seller shall (a) provide to its Depository Participant duly executed DP Instructions in the prescribed form for the transfer of the Sale Shares to the Demat Account of the Purchaser (details of which 2 shall be provided to the Seller in writing as soon as practicable after the Execution Date); (b) procure its Depository Participant to duly acknowledge such DP Instructions; (c) deliver a copy of such acknowledgement to the Purchaser; and (d) use best endeavours to procure credit of the Sale Shares to the Demat Account of the Purchaser.
(iii) The Seller shall, to the extent it is able to do so through exercise of its voting rights, procure that a Board meeting is held at which the following business shall be transactedconditional on:
(a) the appointment of directors nominated issue by the Purchaser Issuer of the Notes and the Residual Certificates and the drawing by the Issuer under the Class S VFN of the amounts referred to in Condition 18 on the Board shall be approvedClosing Date;
(b) the Relevant Documents having been executed and delivered by the parties thereto on or before the Closing Date; and
(bc) an extra-ordinary general meeting the delivery by the Issuer and each Seller of a solvency certificate in or substantially in the shareholders of the Company to approve the matters form set out in Clause 5.3(iii)(aSchedule 6, signed by an authorised officer of the relevant company. Completion of the purchase of the Mortgages shall take place on the Closing Date immediately upon satisfaction of conditions (a), (b) and (c) referred to in this Clause 5.1 and immediately thereafter the amendment steps listed in Clauses 5.2 and 5.3 shall take place, each of the Articles of Association which shall be conveneddeemed to take place simultaneously and payment shall be made in accordance with Clause 5.4.
5.4. This Agreement may be terminated on 5.2 On the Closing Date, each Seller shall deliver or prior procure that there are delivered to the Completion Date as followsIssuer:
(ia) By a duly executed power (in duplicate) in the mutual written consent form of the Purchaser and the Seller.Power of Attorney;
(iib) By a certified copy of each of the Seller, upon written notice to the Purchaser, if the conditions relevant Insurance Contracts set out in Clauses 3.1 Schedule 1;
(c) paper copies of the title deeds to the Properties in respect of the Mortgages;
(d) electronic copies of the Mortgages registered at the Land Registry of England and 3.3 have not been satisfied Wales;
(or satisfied subject only e) its files relating to Completion where applicableeach of the Mortgages; and
(f) or waived (where applicable) in the case of the Mortgages to be acquired by the Issuer from each of PML and Paragon Bank on or before 270 (two hundred seventy) days from the Execution Closing Date or such later date as may be mutually agreed between one copy of the Parties in writing (“Long Stop Date”); provided that the Seller shall not be entitled Annexure to terminate this Agreement pursuant signed by the parties hereto for the purposes of identification. The items referred to in items (c) to (f) of this Clause 5.4(ii) if Seller’s breach of this Agreement has prevented or materially delayed 5.2 shall be delivered on the consummation Closing Date at the offices of the Transactions (which term relevant Administrator as indicated on the first page hereof, or the relevant Administrator shall confirm to the Issuer and the Trustee in an agreed form of letter that as of the Closing Date such items will be held by the relevant Administrator to the order of the Trustee. The Issuer agrees that compliance with this provision shall constitute good delivery of the relevant documents to the Issuer for the purposes of this Clause 5.4(ii) 5.2.
5.3 On the Closing Date, the Issuer shall not include the Financing);
(iii) By the Purchaserdeliver, upon written notice or procure that there are delivered, to the relevant Administrator powers of attorney duly executed by the Issuer and the Trustee in accordance with clause 9.1 of the Administration Agreement.
5.4 On the Closing Date, the Issuer shall (subject to each Seller having performed their respective obligations herein) satisfy and discharge the Initial Purchase Consideration payable under Clause 3.1.
5.5 Each Seller undertakes that it will use all reasonable efforts to obtain, as soon as practicable, and in any event within six months after the Closing Date, details of the title numbers applicable to Properties in England or Wales comprising registered land or land which is the subject of an application for first registration in respect of Mortgages which have been sold by it. Six months from the Closing Date the Seller shall report in writing to the Issuer and the Trustee such title numbers relating to the Mortgages as are then known to it together with such other information relating thereto as the Trustee may reasonably request. If all such title numbers are not then known to the relevant Seller, if the conditions set out in Clauses 3.2 and 3.3 have relevant Seller shall, within such period of time thereafter (not been satisfied (or satisfied subject only being less than two weeks) as the Trustee may specify to Completion where applicable) or waived (where applicable) on or before the Long Stop Date; provided that the Purchaser shall not be entitled to terminate this Agreement pursuant to this Clause 5.4(iii) if Purchaser’s breach of this Agreement has prevented or materially delayed the consummation such Seller, obtain details of the Transactions.
(iv) By missing title numbers and report the Seller (if same in writing to the Seller is not in material breach of the Seller Warranties, covenants or agreements under this Agreement so as to cause Trustee. Where any of the conditions set forth Annexures contain details of Mortgages over registered land in Clause 3.2 and/or 3.3(iEngland or Wales, the relevant Seller will identify (if requested to do so by the Chief Land Registrar) not to be satisfied), upon written notice to the Purchaser, if there has been a material inaccuracy of any statement or warranty, or any unremedied material breach of a covenant or other agreement, District Registry responsible for the area in which each of the Purchaser contained in this Agreement, which violation, breach or inaccuracy would cause any of the conditions set forth in Clause 3.1 and/or 3.3 not to be satisfied as of the Completion Date, and such violation, breach or inaccuracy has not been waived by the Seller or cured by the Purchaser within 20 (twenty) Business Days after receipt by the Purchaser of written notice thereof from the Seller or Properties is not reasonably capable of being cured prior to the Long Stop Datesituated.
(v) By the Purchaser (if the Purchaser is not in material breach of the Purchaser Warranties, covenants or agreements under this Agreement so as to cause any of the conditions set forth in Clause 3.1 and/or 3.3 not to be satisfied), upon written notice to the Seller, if there has been a material inaccuracy of any statement or warranty, or any unremedied material breach of a covenant or other agreement, of the Seller contained in this Agreement, which violation, breach or inaccuracy would cause any of the conditions set forth in Clauses 3.2 and/or 3.3(i) not to be satisfied as of the Completion Date, and such violation, breach or inaccuracy has not been waived by the Purchaser or cured by the Seller within 20 (twenty) Business Days after receipt by the Seller of written notice thereof from the Purchaser or is not reasonably capable of being cured prior to the Long Stop Date.
(vi) By the Seller or the Purchaser, upon written notice to the other, if a court of competent jurisdiction or any other Governmental Authority shall have issued a final, non-appealable order preventing or otherwise prohibiting the consummation of the Transactions.
5.5. If this Agreement is terminated prior to Completion in accordance with Clause 5.4 above,
(i) this Agreement shall become void and of no further force and effect; provided, however, that the provisions of this Clause 5.5 and Clauses 1 (Definitions and Interpretation), 11 (Announcements and Confidentiality), 12 (Notices), 13 (Governing Law, Disputes and Jurisdiction), 14.1 (Entire Agreement), 14.6 (Variation), 14.7 (No Assignment), 14.8 (Waiver), 14.9 (Severability), 14.10 (Supersession) and 14.11 (Expenses) shall survive the termination of this Agreement indefinitely and that nothing herein shall relieve any Party from any liability for fraud or any breach of the provisions of this Agreement prior to such termination; and
(ii) if applicable, the Observer shall no longer be entitled to attend the meetings of the Board (or any committee thereof) and the nominees of the Purchaser appointed on the Board in accordance with Clause 6.2 shall resign with immediate effect.
Appears in 1 contract
Sources: Mortgage Sale Agreement
Completion. 5.14.1 Time and place of Completion Completion will take place at 3pm on the Completion Date in Hong Kong or any other time and place agreed between the Seller and the Buyer. Subject Share Sale Agreement 9
4.2 Seller’s obligations On Completion, the Seller will give to the conditions Buyer:
(a) (transfers and Share certificates) duly executed transfers in favour of the Buyer (or as it may direct) of all the Shares, the share certificates for the Shares and any consents which the Buyer reasonably requires to obtain registration of those transfers;
(b) (Records and common seal) the Records and the common seal (if any) of the Company, except that if the Seller is legally required to retain any of the documents, the Seller may deliver copies of those documents to the Buyer;
(c) (resignations) written resignations of the Retiring Directors; and
(d) (directors resolution of the Company) a certified copy of a resolution of the Board resolving that:
(i) subject to the payment of stamp duty, if applicable, the transfer of the Shares will be registered; and
(ii) subject to the Memorandum and Articles and subject to them consenting to act, each of the Incoming Directors be appointed to the Board, and the resignation of the Retiring Directors from the Board be accepted, all with effect from Completion, but so that a properly constituted Board is in existence at all times.
4.3 Buyer’s obligations On Completion the Buyer must:
(a) (pay) pay the Seller in accordance with clauses 5.1 (“Payment on Completion”) and 5.2 (“Method of payment”);
(b) (consent to act) deliver executed consents to act by the Incoming Directors; and
(c) (Conditions Precedent) evidence that the Conditions Precedent set out in Clauses 3.1clause 3.1(a) (“Conditions Precedent”) have been satisfied.
4.4 Simultaneous actions at Completion In respect of Completion:
(a) the obligations of the parties under this agreement are interdependent; and
(b) unless otherwise stated, 3.2 and 3.3, all actions required to be performed by a party at Completion shall take place are taken to have occurred simultaneously on the Completion Date.
5.24.5 Post-Completion notices Each party will immediately give to the other party all payments, notices, correspondence, information or enquiries in relation to the Company which it receives after Completion and which belong to the other party. The obligations of each Share Sale Agreement 10 5 Payment of the Parties under Clause 5.3 below are interdependent of each other. The Completion shall not occur unless all of the obligations specified in Clause 5.3, have been simultaneously complied with and are fully effective.
5.3. On the Completion Date:
(i) Subject to deductions pursuant to Clause 4.4, the Purchaser shall remit the Purchase Consideration (in immediately available funds) to the Seller’s Bank Account.
(ii) The Seller shall (a) provide to its Depository Participant duly executed DP Instructions in the prescribed form for the transfer of the Sale Shares to the Demat Account of the Purchaser (details of which shall be provided to the Seller in writing as soon as practicable after the Execution Date); (b) procure its Depository Participant to duly acknowledge such DP Instructions; (c) deliver a copy of such acknowledgement to the Purchaser; and (d) use best endeavours to procure credit of the Sale Shares to the Demat Account of the Purchaser.
(iii) The Seller shall, to the extent it is able to do so through exercise of its voting rights, procure that a Board meeting is held at which the following business shall be transacted:
(a) the appointment of directors nominated by the Purchaser on the Board shall be approved; and
(b) an extra-ordinary general meeting of the shareholders of the Company to approve the matters set out in Clause 5.3(iii)(a) and the amendment of the Articles of Association shall be convened.
5.4. This Agreement may be terminated on or prior to the Completion Date as follows:
(i) By the mutual written consent of the Purchaser and the Seller.
(ii) By the Seller, upon written notice to the Purchaser, if the conditions set out in Clauses 3.1 and 3.3 have not been satisfied (or satisfied subject only to Completion where applicable) or waived (where applicable) on or before 270 (two hundred seventy) days from the Execution Date or such later date as may be mutually agreed between the Parties in writing (“Long Stop Date”); provided that the Seller shall not be entitled to terminate this Agreement pursuant to this Clause 5.4(ii) if Seller’s breach of this Agreement has prevented or materially delayed the consummation of the Transactions (which term for the purposes of this Clause 5.4(ii) shall not include the Financing);
(iii) By the Purchaser, upon written notice to the Seller, if the conditions set out in Clauses 3.2 and 3.3 have not been satisfied (or satisfied subject only to Completion where applicable) or waived (where applicable) on or before the Long Stop Date; provided that the Purchaser shall not be entitled to terminate this Agreement pursuant to this Clause 5.4(iii) if Purchaser’s breach of this Agreement has prevented or materially delayed the consummation of the Transactions.
(iv) By the Seller (if the Seller is not in material breach of the Seller Warranties, covenants or agreements under this Agreement so as to cause any of the conditions set forth in Clause 3.2 and/or 3.3(i) not to be satisfied), upon written notice to the Purchaser, if there has been a material inaccuracy of any statement or warranty, or any unremedied material breach of a covenant or other agreement, of the Purchaser contained in this Agreement, which violation, breach or inaccuracy would cause any of the conditions set forth in Clause 3.1 and/or 3.3 not to be satisfied as of the Completion Date, and such violation, breach or inaccuracy has not been waived by the Seller or cured by the Purchaser within 20 (twenty) Business Days after receipt by the Purchaser of written notice thereof from the Seller or is not reasonably capable of being cured prior to the Long Stop Date.
(v) By the Purchaser (if the Purchaser is not in material breach of the Purchaser Warranties, covenants or agreements under this Agreement so as to cause any of the conditions set forth in Clause 3.1 and/or 3.3 not to be satisfied), upon written notice to the Seller, if there has been a material inaccuracy of any statement or warranty, or any unremedied material breach of a covenant or other agreement, of the Seller contained in this Agreement, which violation, breach or inaccuracy would cause any of the conditions set forth in Clauses 3.2 and/or 3.3(i) not to be satisfied as of the Completion Date, and such violation, breach or inaccuracy has not been waived by the Purchaser or cured by the Seller within 20 (twenty) Business Days after receipt by the Seller of written notice thereof from the Purchaser or is not reasonably capable of being cured prior to the Long Stop Date.
(vi) By the Seller or the Purchaser, upon written notice to the other, if a court of competent jurisdiction or any other Governmental Authority shall have issued a final, non-appealable order preventing or otherwise prohibiting the consummation of the Transactions.
5.5. If this Agreement is terminated prior to Completion in accordance with Clause 5.4 above,
(i) this Agreement shall become void and of no further force and effect; provided, however, that the provisions of this Clause 5.5 and Clauses 1 (Definitions and Interpretation), 11 (Announcements and Confidentiality), 12 (Notices), 13 (Governing Law, Disputes and Jurisdiction), 14.1 (Entire Agreement), 14.6 (Variation), 14.7 (No Assignment), 14.8 (Waiver), 14.9 (Severability), 14.10 (Supersession) and 14.11 (Expenses) shall survive the termination of this Agreement indefinitely and that nothing herein shall relieve any Party from any liability for fraud or any breach of the provisions of this Agreement prior to such termination; and
(ii) if applicable, the Observer shall no longer be entitled to attend the meetings of the Board (or any committee thereof) and the nominees of the Purchaser appointed on the Board in accordance with Clause 6.2 shall resign with immediate effect.Price
Appears in 1 contract
Completion. 5.14.1. Subject to the conditions set out in Clauses 3.1, 3.2 and 3.3, Completion shall take place within 3 (three) Business Days from the date on which the Completion Date.
5.2. The obligations of each of the Parties under Clause 5.3 below Conditions Precedent are interdependent of each other. The Completion shall not occur unless all of the obligations specified in Clause 5.3, have been simultaneously complied with and are fully effective.
5.3. On the Completion Date:
(i) Subject to deductions pursuant to Clause 4.4, the Purchaser shall remit the Purchase Consideration (in immediately available funds) completed to the Seller’s Bank Account.
(ii) The Seller shall (a) provide to its Depository Participant duly executed DP Instructions in the prescribed form for the transfer of the Sale Shares to the Demat Account of the Purchaser (details of which shall be provided to the Seller in writing as soon as practicable after the Execution Date); (b) procure its Depository Participant to duly acknowledge such DP Instructions; (c) deliver a copy of such acknowledgement to the Purchaser; and (d) use best endeavours to procure credit of the Sale Shares to the Demat Account satisfaction of the Purchaser.
(iii) The Seller shall, to the extent it is able to do so through exercise of its voting rights, procure that a Board meeting is held at which the following business shall be transacted:
(a) the appointment of directors nominated by the Purchaser on the Board shall be approved; and
(b) an extra-ordinary general meeting of the shareholders of the Company to approve the matters set out in Clause 5.3(iii)(a) and the amendment of the Articles of Association shall be convened.
5.4. This Agreement may be terminated on or prior to the Completion Date as follows:
(i) By the mutual written consent of the Purchaser and the Seller.
(ii) By the Seller, upon written notice to the Purchaser, if the conditions set out in Clauses 3.1 and 3.3 have not been satisfied (or satisfied subject only to Completion where applicable) or waived (where applicable) on or before 270 (two hundred seventy) days from the Execution Date or such later other date as may be mutually agreed between the Parties in writing (“Completion Date”) but not later than the Long Stop Date. On the Completion Date, the events set out in Clause 4.2 shall take place in the sequence set out below, each one conditional upon the other and not to be treated as mutually exclusive, for the completion of the transfer of the relevant Sale Shares by the Seller to the Purchaser (“Completion”); provided ) Purchaser. It is clarified that Completion shall not be considered to be consummated, unless all the transactions set out under Clause 4.2 are consummated in accordance with the terms set out therein.
4.2. On the Completion Date:
4.2.1. The Seller shall deliver to the Purchasers, a copy of the signed irrevocable and unconditional delivery instruction slips instructing the depository participant to debit the Sale Shares held by the Seller from its Seller’s Demat Account and to credit the relevant Sale Shares to the Purchasers’ Demat Account.
4.2.2. Upon receipt of the delivery instruction slip referred to in Clause 4.2.1, the Purchaser shall issue instructions to its respective banker to remit by wire transfer, relevant amounts equal to the Sale Consideration to be apportioned to the Seller’s Bank Account, and cause its banker to issue the UTR evidencing remittance of such amount to Seller’s Bank Account, and shall provide a copy of such instruction and UTR to the Seller.
4.2.3. Immediately upon receipt of the UTR referred to in Clause 4.2.2, the Seller shall deliver to its depository participant duly signed, irrevocable and unconditional delivery instruction slips instructing them to debit the Sale Shares held by it from Seller’s Demat Account and to credit the Sale Shares to the Purchaser’s Demat Account and shall provide the Purchaser with a copy of the irrevocable delivery instructions slip along with a copy of the acknowledgement provided by the depository participant in connection with receipt of such signed delivery instruction slip.
4.3. In the event that the Completion does not be entitled occur, or the Seller is unable to terminate undertake the actions set out in Clause 4.2 in the manner and within the time envisaged in this Agreement pursuant or the Seller becomes aware of a fact or circumstance that is reasonably likely to prevent any of the actions set out in Clause 4.2.1 from being satisfied on the Completion Date, then, without prejudice to the rights of the Purchaser under this Agreement or under Applicable Law, the Seller shall promptly inform the Purchaser of the matter and, the Seller shall, at the Purchaser’s sole option either (a) perform his obligations under Clause 5.4(ii4.2.1 and transfer the relevant Sale Shares to the Purchaser, or (b) if immediately refund to the Purchaser, the entire Sale Consideration paid by the Purchaser to the Seller’s breach .
4.4. The Seller undertakes to file their income-tax return in accordance with Income Tax Act, which shall include complete disclosure of this Agreement has prevented or materially delayed the consummation Transaction and shall remain a resident of the Transactions (which term India for the purposes of this Clause 5.4(ii) the Income Tax Act and the FEMA Regulations till the end of the financial year in which the Completion occurs.
4.5. The Purchaser shall not include the Financing);
(iii) By the Purchaser, upon written notice extend full assistance to the Seller, if Seller as required to ensure the conditions set out in Clauses 3.2 and 3.3 have not been satisfied (or satisfied subject only to Completion where applicable) or waived (where applicable) on or before the Long Stop Date; provided that the Purchaser shall not be entitled to terminate this Agreement pursuant to this Clause 5.4(iii) if Purchaser’s breach of this Agreement has prevented or materially delayed the consummation valid transfer of the Transactions.
(iv) By the Seller (if the Seller is not in material breach of the Seller Warranties, covenants or agreements under this Agreement so as to cause any of the conditions set forth in Clause 3.2 and/or 3.3(i) not to be satisfied), upon written notice Sale Shares to the Purchaser, if there has been a material inaccuracy including, but not limited, providing all necessary documents required for the purposes of any statement or warranty, or any unremedied material breach of a covenant or other agreement, an effective transfer of the Purchaser contained in this Agreement, which violation, breach or inaccuracy would cause any of the conditions set forth in Clause 3.1 and/or 3.3 not to be satisfied as of the Completion Date, and such violation, breach or inaccuracy has not been waived by the Seller or cured by the Purchaser within 20 (twenty) Business Days after receipt by the Purchaser of written notice thereof from the Seller or is not reasonably capable of being cured prior to the Long Stop DateSale Shares.
(v) By the Purchaser (if the Purchaser is not in material breach of the Purchaser Warranties, covenants or agreements under this Agreement so as to cause any of the conditions set forth in Clause 3.1 and/or 3.3 not to be satisfied), upon written notice to the Seller, if there has been a material inaccuracy of any statement or warranty, or any unremedied material breach of a covenant or other agreement, of the Seller contained in this Agreement, which violation, breach or inaccuracy would cause any of the conditions set forth in Clauses 3.2 and/or 3.3(i) not to be satisfied as of the Completion Date, and such violation, breach or inaccuracy has not been waived by the Purchaser or cured by the Seller within 20 (twenty) Business Days after receipt by the Seller of written notice thereof from the Purchaser or is not reasonably capable of being cured prior to the Long Stop Date.
(vi) By the Seller or the Purchaser, upon written notice to the other, if a court of competent jurisdiction or any other Governmental Authority shall have issued a final, non-appealable order preventing or otherwise prohibiting the consummation of the Transactions.
5.5. If this Agreement is terminated prior to Completion in accordance with Clause 5.4 above,
(i) this Agreement shall become void and of no further force and effect; provided, however, that the provisions of this Clause 5.5 and Clauses 1 (Definitions and Interpretation), 11 (Announcements and Confidentiality), 12 (Notices), 13 (Governing Law, Disputes and Jurisdiction), 14.1 (Entire Agreement), 14.6 (Variation), 14.7 (No Assignment), 14.8 (Waiver), 14.9 (Severability), 14.10 (Supersession) and 14.11 (Expenses) shall survive the termination of this Agreement indefinitely and that nothing herein shall relieve any Party from any liability for fraud or any breach of the provisions of this Agreement prior to such termination; and
(ii) if applicable, the Observer shall no longer be entitled to attend the meetings of the Board (or any committee thereof) and the nominees of the Purchaser appointed on the Board in accordance with Clause 6.2 shall resign with immediate effect.
Appears in 1 contract
Sources: Share Purchase Agreement
Completion. 5.1. Subject to 3.1 Consummation of the conditions set out transactions contemplated in Clauses 3.1, 3.2 and 3.3, Completion this Agreement ("Completion") shall take place at 5.00 p.m. (London time) at the offices of Baker & McKenzie in London on the Completion Date.
5.2. The obligations 3.2 Subje▇▇ ▇▇ th▇ ▇▇▇▇▇ and conditions of each of the Parties under Clause 5.3 below are interdependent of each other. The Completion shall not occur unless all of the obligations specified in Clause 5.3this Agreement, have been simultaneously complied with and are fully effective.
5.3. On the Completion Date:
(i) Subject to deductions pursuant to Clause 4.4, the Purchaser shall remit the Purchase Consideration (in immediately available funds) to the Seller’s Bank Account.
(ii) The Seller shall (a) provide to its Depository Participant duly executed DP Instructions in the prescribed form for the transfer of the Sale Shares to the Demat Account of the Purchaser (details of which shall be provided to the Seller in writing as soon as practicable after the Execution Date); (b) procure its Depository Participant to duly acknowledge such DP Instructions; (c) deliver a copy of such acknowledgement to the Purchaser; and (d) use best endeavours to procure credit of the Sale Shares to the Demat Account of the Purchaser.
(iii) The Seller shall, to the extent it is able to do so through exercise of its voting rights, procure that a Board meeting is held at which the following business shall be transactedCompletion:
(a) the appointment of directors nominated by the Purchaser on the Board shall be approved; and
(b) an extra-ordinary general meeting of the shareholders of the Company to approve the matters set out in Clause 5.3(iii)(a) and the amendment of the Articles of Association shall be convened.
5.4. This Agreement may be terminated on or prior to the Completion Date as followsSeller shall:
(i) By deliver to the mutual written consent Buyer originals or duly certified copies (as the case may be) of the Purchaser documents and other evidence set out in section 1 of Part 3 of Schedule 1, all in form and substance satisfactory to the Seller.Buyer;
(ii) By procure that Shell Capital Services Limited shall notify the Seller, upon written notice KKM Registrar of the termination of the KKM Pledge Agreement and instruct the KKM Registrar (with a copy of such instruction to the Purchaser, if Buyer) to release the conditions KKM Secured Shares forthwith; and
(iii) execute and deliver to the Buyer three copies of the Transfer Certificate;
(b) the Buyer shall:
(i) deliver to the Seller originals or duly certified copies of the documents set out in Clauses 3.1 section 2 of Part 3 of Schedule 1;
(ii) promptly upon receipt, itself execute each Transfer Certificate delivered to it by the Seller and deliver the same to the Facility Agent; and
(iii) pay the Consideration to the Seller on the Completion Date in Dollars in immediately available funds, such payment to be increased (if necessary) to the amount which, after any deduction or withholding for or on account of any tax, is equal to the full amount of the Consideration which the Seller would have received had no such deduction or withholding been required from or in respect of such payment.
3.3 If any of the provisions of Clause 3.2 have not been satisfied (complied with or satisfied subject only on the Completion Date, the parties may agree to:
(a) defer Completion and to extend the Completion where applicable) or waived (where applicable) on or before 270 (two hundred seventy) days from the Execution Date or to such later other date as may be mutually agreed between the Parties in writing (“Long Stop Date”); provided and so that the Seller shall not be entitled to terminate this Agreement pursuant to this Clause 5.4(ii) if Seller’s breach provisions of this Agreement has prevented or materially delayed the consummation of the Transactions (which term for the purposes of this Clause 5.4(ii) shall not include the Financing);
(iii) By the Purchaser, upon written notice to the Seller, if the conditions set out in Clauses 3.2 and 3.3 have not been satisfied (or satisfied subject only shall apply to Completion where applicable) or waived (where applicable) on or before the Long Stop Dateas so deferred); provided that the Purchaser shall not be entitled to terminate this Agreement pursuant to this Clause 5.4(iii) if Purchaser’s breach of this Agreement has prevented or materially delayed the consummation of the Transactions.or
(ivb) By the Seller (if the Seller is not in material breach of the Seller Warranties, covenants or agreements under this Agreement so as to cause any of the conditions set forth in Clause 3.2 and/or 3.3(i) not to be satisfied), upon written notice to the Purchaser, if there has been a material inaccuracy of any statement or warranty, or any unremedied material breach of a covenant or other agreement, of the Purchaser contained in terminate and cancel this Agreement, which violation, breach or inaccuracy would cause any of the conditions set forth in Clause 3.1 and/or 3.3 not to be satisfied as of the Completion Date, and such violation, breach or inaccuracy has not been waived by the Seller or cured by the Purchaser within 20 (twenty) Business Days after receipt by the Purchaser of written notice thereof from the Seller or is not reasonably capable of being cured prior to the Long Stop Date.
(v) By the Purchaser (if the Purchaser is not in material breach of the Purchaser Warranties, covenants or agreements under this Agreement so as to cause any of the conditions set forth in Clause 3.1 and/or 3.3 not to be satisfied), upon written notice to the Seller, if there has been a material inaccuracy of any statement or warranty, or any unremedied material breach of a covenant or other agreement, of the Seller contained in this Agreement, which violation, breach or inaccuracy would cause any of the conditions set forth in Clauses 3.2 and/or 3.3(i) not to be satisfied as of the Completion Date, and such violation, breach or inaccuracy has not been waived by the Purchaser or cured by the Seller within 20 (twenty) Business Days after receipt by the Seller of written notice thereof from the Purchaser or is not reasonably capable of being cured prior to the Long Stop Date.
(vi) By the Seller or the Purchaser, upon written notice to the other, if a court of competent jurisdiction or any other Governmental Authority shall have issued a final, non-appealable order preventing or otherwise prohibiting the consummation of the Transactions.
5.5. If this Agreement is terminated prior to Completion in accordance with Clause 5.4 above,
(i) this Agreement shall become void and of no further force and effect; provided, however, that the provisions of this Clause 5.5 and Clauses 1 (Definitions and Interpretation), 11 (Announcements and Confidentiality), 12 (Notices), 13 (Governing Law, Disputes and Jurisdiction), 14.1 (Entire Agreement), 14.6 (Variation), 14.7 (No Assignment), 14.8 (Waiver), 14.9 (Severability), 14.10 (Supersession) and 14.11 (Expenses) shall survive the termination of this Agreement indefinitely and that nothing herein shall relieve any Party from any liability for fraud or any breach of the provisions of this Agreement prior to such termination; and
(ii) if applicable, the Observer shall no longer be entitled to attend the meetings of the Board (or any committee thereof) and the nominees of the Purchaser appointed on the Board in accordance with Clause 6.2 shall resign with immediate effect.
Appears in 1 contract
Completion. 5.1. Subject to the conditions set out in Clauses 3.1, 3.2 and 3.3, 6.1 Completion shall take place at the head offices of the Company in Istanbul, Turkey at 11:00 a.m. on the Completion Date.
5.2. The obligations 6.2 At Completion the Sellers shall do those things listed in Part A (Transfer obligations), in so far as applicable to the Sellers, and in Part B (Sellers’ obligations) of each of the Parties under Clause 5.3 below are interdependent of each other. The Schedule 2 (Completion shall not occur unless all of the obligations specified in Clause 5.3, have been simultaneously complied with arrangements) and are fully effective.
5.3. On the Completion Date:
(i) Subject to deductions pursuant to Clause 4.4, the Purchaser shall remit the Purchase Consideration do those things listed in Part A (Transfer obligations), in immediately available funds) to the Seller’s Bank Account.
(ii) The Seller shall (a) provide to its Depository Participant duly executed DP Instructions in the prescribed form for the transfer of the Sale Shares to the Demat Account of the Purchaser (details of which shall be provided to the Seller in writing so far as soon as practicable after the Execution Date); (b) procure its Depository Participant to duly acknowledge such DP Instructions; (c) deliver a copy of such acknowledgement to the Purchaser; and (d) use best endeavours to procure credit of the Sale Shares to the Demat Account of the Purchaser.
(iii) The Seller shall, to the extent it is able to do so through exercise of its voting rights, procure that a Board meeting is held at which the following business shall be transacted:
(a) the appointment of directors nominated by the Purchaser on the Board shall be approved; and
(b) an extra-ordinary general meeting of the shareholders of the Company to approve the matters set out in Clause 5.3(iii)(a) and the amendment of the Articles of Association shall be convened.
5.4. This Agreement may be terminated on or prior to the Completion Date as follows:
(i) By the mutual written consent of the Purchaser and the Seller.
(ii) By the Seller, upon written notice applicable to the Purchaser, if and Part C (Purchaser’s obligations) of Schedule 2 (Completion arrangements). Completion shall take place in accordance with Part D (General) of Schedule 2 (Completion arrangements).
6.3 Neither the conditions set out in Clauses 3.1 Purchaser nor the Sellers shall be obliged to complete the sale and 3.3 have not been satisfied (or satisfied subject only to Completion where applicable) or waived (where applicable) on or before 270 (two hundred seventy) days from the Execution Date or such later date as may be mutually agreed between the Parties in writing (“Long Stop Date”); provided that the Seller shall not be entitled to terminate this Agreement pursuant to this Clause 5.4(ii) if Seller’s breach of this Agreement has prevented or materially delayed the consummation purchase of the Transactions (which term for Shares unless the purposes sale and purchase of this Clause 5.4(ii) shall not include all the Financing);
(iii) By the Purchaser, upon written notice to the Seller, if the conditions set out in Clauses 3.2 and 3.3 have not been satisfied (or satisfied subject only to Completion where applicable) or waived (where applicable) on or before the Long Stop Date; provided that the Purchaser shall not be entitled to terminate this Agreement pursuant to this Clause 5.4(iii) if Purchaser’s breach of this Agreement has prevented or materially delayed the consummation of the Transactions.
(iv) By the Seller (if the Seller is not in material breach of the Seller Warranties, covenants or agreements Shares under this Agreement so as to cause any and the Dogus Holding Shares under the Dogus Holding SPA are completed simultaneously.
6.4 With effect from Completion, the Restated Shareholders’ Agreement shall come into full force and effect and replace the Shareholders’ Agreement.
6.5 If the respective obligations of the conditions set forth in Clause 3.2 Sellers and/or 3.3(i) not to be satisfied), upon written notice to the Purchaser, if there has been a material inaccuracy of any statement or warranty, or any unremedied material breach of a covenant or other agreement, of the Purchaser contained in this Agreement, which violation, breach or inaccuracy would cause any of the conditions set forth in Clause 3.1 and/or 3.3 under sub-clause 6.2 and Schedule 2 (Completion arrangements) are not to be satisfied as of complied with on the Completion Date, and such violation, breach or inaccuracy has not been waived by Date the Seller or cured by the Purchaser within 20 (twenty) Business Days after receipt by the Purchaser of written notice thereof from the Seller or is not reasonably capable of being cured prior to the Long Stop Date.non-defaulting party may:
(vA) By the Purchaser defer Completion (if the Purchaser is not in material breach of the Purchaser Warranties, covenants or agreements under this Agreement so as to cause any of the conditions set forth in Clause 3.1 and/or 3.3 not to be satisfied), upon written notice to the Seller, if there has been a material inaccuracy of any statement or warranty, or any unremedied material breach of a covenant or other agreement, of the Seller contained in this Agreement, which violation, breach or inaccuracy would cause any of the conditions set forth in Clauses 3.2 and/or 3.3(i) not to be satisfied as of the Completion Date, and such violation, breach or inaccuracy has not been waived by the Purchaser or cured by the Seller within 20 (twenty) Business Days after receipt by the Seller of written notice thereof from the Purchaser or is not reasonably capable of being cured prior to the Long Stop Date.
(vi) By the Seller or the Purchaser, upon written notice to the other, if a court of competent jurisdiction or any other Governmental Authority shall have issued a final, non-appealable order preventing or otherwise prohibiting the consummation of the Transactions.
5.5. If this Agreement is terminated prior to Completion in accordance with Clause 5.4 above,
(i) this Agreement shall become void and of no further force and effect; provided, however, that the provisions of this Clause 5.5 and Clauses 1 6 (Definitions and InterpretationCompletion) shall apply to Completion as so deferred), 11 ; or
(Announcements and Confidentiality), 12 B) proceed to Completion as far as practicable (Notices), 13 (Governing Law, Disputes and Jurisdiction), 14.1 (Entire without limiting its rights under this Agreement), 14.6 ; or
(Variation), 14.7 (No Assignment), 14.8 (Waiver), 14.9 (Severability), 14.10 (SupersessionC) and 14.11 (Expenses) shall survive the termination of terminate this Agreement indefinitely by notice in writing to the other party.
6.6 If this Agreement is terminated in accordance with sub-clause 6.5 (and that nothing herein without limiting any Party’s right to claim damages from the other in respect thereof):
(A) all obligations of the Parties shall relieve any Party from any liability end (except for fraud or any breach of the provisions of this Agreement prior Clauses 16 (Announcements) and 17 (Confidentiality)) but (for the avoidance of doubt) all rights and liabilities of the Parties which have accrued before termination shall continue to such terminationexist;
(B) in circumstances in which the termination has resulted solely from the Purchaser’s failure to fulfil its obligations under sub-clauses 6.2 and Schedule 2 (Completion arrangements), the Purchaser will indemnify the Sellers on demand on an after-Tax basis for all costs and expenses reasonably incurred by the Sellers; and
(iiC) if applicablein circumstances in which the termination has resulted solely from the failure of any of the Sellers to fulfil its obligations under sub-clause 6.2 and Schedule 2 (Completion arrangements), the Observer Sellers will indemnify the Purchaser on demand on an after-Tax basis for all costs and expenses reasonably incurred by the Purchaser.
6.7 Following the Completion, the Purchaser shall no longer be entitled make (or procure the Company to attend the meetings make) any notifications of the Board (transfer of the Shares as may be required by law or any committee thereof) regulation and the nominees of Sellers shall provide such assistance as the Purchaser appointed on the Board may reasonably require in accordance with Clause 6.2 shall resign with immediate effectmaking such notifications.
Appears in 1 contract
Sources: Share Purchase Agreement (Banco Bilbao Vizcaya Argentaria, S.A.)
Completion. 5.1. Subject to the conditions set out in Clauses 3.1, 3.2 and 3.3, 4.1 Completion shall take place on the Completion Date.
5.2. The obligations of each of the Parties under Clause 5.3 below are interdependent of each other. The Completion shall not occur unless all of the obligations specified in Clause 5.3, have been simultaneously complied with and are fully effective.
5.3. 4.2 On the Completion Date:
(ia) Subject to deductions pursuant to Clause 4.4, both the Seller and the Purchaser (if applicable) shall remit exercise its votes at shareholders’ meetings such that it does not prevent the Purchase Consideration (in immediately available funds) Company from doing all things necessary to the Seller’s Bank Account.
(ii) The Seller shall (a) provide to its Depository Participant duly executed DP Instructions in the prescribed form for approve the transfer of the Sale Shares to the Demat Account Purchaser including entering the name of the Purchaser in the register of members of the Company as the holder of the Sale Shares and endorsing the transfer of shares on the share certificates relating to the Sale Shares;
(details b) The Seller shall deliver the (i) final opinion from the Big 4 Accounting Firm signed as on the Completion Date opining that the Purchaser should not be obligated to withhold any taxes under the IT Act in relation to the payment of which shall be provided any portion of the Seller Treaty Shares Consideration to the Seller in writing respect of the Seller Treaty Shares along with the release letter issued by such Big 4 Accounting Firm (“Tax Opinion”), (ii) the final Seller Non-Treaty Shares Income Tax Computation signed as soon on the Completion Date and (iii) the final Seller Treaty Shares Income Tax Computation signed as practicable on the Completion Date; provided that notwithstanding the above, the final Seller Treaty Shares Income Tax Computation shall be signed and delivered to the Purchaser 1 (one) day prior to the Completion Date, in case the Completion occurs on or after the Execution Date); (b) procure its Depository Participant to duly acknowledge such DP Instructions; April 1, 2021;
(c) The Seller shall deliver the duly filled and signed Form 15CB under the IT Act;
(d) on receipt of the SWIFT confirmation from the Purchaser indicating proof of remittance of the Consideration (to it in accordance with Clause 4.2(e) below), the Seller shall instruct the Company to proceed with the actions specified in Clauses 4.2(f) and 4.3;
(e) the Purchaser shall instruct its bank to credit (i) the Seller Treaty Shares Consideration in full to the Seller’s Designated Account by way of wire transfer which shall be free and clear of, and without deductions or withholdings for or on account of any tax, or other deductions of any nature, and (ii) the Seller Non-Treaty Shares Consideration to the Seller’s Designated Account by way of wire transfer which shall, be credited after deduction of the Withholding Tax in accordance with the Seller Non Treaty Shares Income Tax Computation;
(f) the Board shall hold a copy of such acknowledgement meeting at shorter notice and pass the following resolutions in a form and manner acceptable to the Purchaser; and :
(di) use best endeavours to procure credit approving the transfer of the Sale Shares to the Demat Account Purchaser;
(ii) approving the endorsement of the Purchaser.
(iii) The Seller shall, to the extent it is able to do so through exercise name of its voting rights, procure that a Board meeting is held at which the following business shall be transacted:
(a) the appointment of directors nominated by the Purchaser on the Board shall be approved; and
(b) an extra-ordinary general meeting of the shareholders of the Company to approve the matters set out in Clause 5.3(iii)(a) and the amendment of the Articles of Association shall be convened.
5.4. This Agreement may be terminated on or prior to the Completion Date as follows:
(i) By the mutual written consent of the Purchaser and the Seller.
(ii) By the Seller, upon written notice to the Purchaser, if the conditions set out in Clauses 3.1 and 3.3 have not been satisfied (or satisfied subject only to Completion where applicable) or waived (where applicable) on or before 270 (two hundred seventy) days from the Execution Date or such later date as may be mutually agreed between the Parties in writing (“Long Stop Date”); provided that the Seller shall not be entitled to terminate this Agreement pursuant to this Clause 5.4(ii) if Seller’s breach of this Agreement has prevented or materially delayed the consummation of the Transactions (which term for the purposes of this Clause 5.4(ii) shall not include the Financing)share certificates;
(iii) By approving the Purchaser, upon written notice to entry of the Seller, if the conditions set out in Clauses 3.2 and 3.3 have not been satisfied (or satisfied subject only to Completion where applicable) or waived (where applicable) on or before the Long Stop Date; provided that name of the Purchaser shall not be entitled to terminate this Agreement pursuant to this Clause 5.4(iii) if Purchaser’s breach in the register of this Agreement has prevented or materially delayed the consummation members of the Transactions.Company as the registered holder of the Sale Shares; and
(iv) By authorising such other acts as may be necessary to give effect to the Seller (if Completion.
4.3 On the Seller is not in material breach of Completion Date, the Seller Warranties, covenants or agreements under this Agreement so as to cause any of the conditions set forth in Clause 3.2 and/or 3.3(i) not to be satisfied), upon written notice Company shall promptly provide to the Purchaser, if there has been a material inaccuracy of any statement or warranty, or any unremedied material breach of a covenant or other agreement, of the Purchaser contained in this Agreement, which violation, breach or inaccuracy would cause any of the conditions set forth in Clause 3.1 and/or 3.3 not to be satisfied as of the Completion Date, and such violation, breach or inaccuracy has not been waived by the Seller or cured by the Purchaser within 20 (twenty) Business Days after receipt by the Purchaser of written notice thereof from the Seller or is not reasonably capable of being cured prior to the Long Stop Date.
(v) By the Purchaser (if the Purchaser is not in material breach of the Purchaser Warranties, covenants or agreements under this Agreement so as to cause any of the conditions set forth in Clause 3.1 and/or 3.3 not to be satisfied), upon written notice to the Seller, if there has been a material inaccuracy of any statement or warranty, or any unremedied material breach of a covenant or other agreement, of the Seller contained in this Agreement, which violation, breach or inaccuracy would cause any of the conditions set forth in Clauses 3.2 and/or 3.3(i) not to be satisfied as of the Completion Date, and such violation, breach or inaccuracy has not been waived by the Purchaser or cured by the Seller within 20 (twenty) Business Days after receipt by the Seller of written notice thereof from the Purchaser or is not reasonably capable of being cured prior to the Long Stop Date.
(vi) By the Seller or the Purchaser, upon written notice to the other, if a court of competent jurisdiction or any other Governmental Authority shall have issued a final, non-appealable order preventing or otherwise prohibiting the consummation of the Transactions.
5.5. If this Agreement is terminated prior to Completion in accordance with Clause 5.4 above,
(i) this Agreement shall become void and of no further force and effect; provided, however, that the provisions of this Clause 5.5 and Clauses 1 (Definitions and Interpretation), 11 (Announcements and Confidentiality), 12 (Notices), 13 (Governing Law, Disputes and Jurisdiction), 14.1 (Entire Agreement), 14.6 (Variation), 14.7 (No Assignment), 14.8 (Waiver), 14.9 (Severability), 14.10 (Supersession) and 14.11 (Expenses) shall survive the termination of this Agreement indefinitely and that nothing herein shall relieve any Party from any liability for fraud or any breach certified true copies of the provisions of this Agreement prior resolutions passed by the Board pursuant to such termination; and
Clause 4.2(f) above, (ii) if applicable, the Observer shall no longer be entitled to attend duly endorsed share certificates in original reflecting the meetings Purchaser as the owner of the Board (or any committee thereof) and the nominees of the Purchaser appointed on the Board in accordance with Clause 6.2 shall resign with immediate effect.Sale Shares
Appears in 1 contract
Sources: Share Purchase Agreement
Completion. 5.1. Subject to the conditions set out in Clauses 3.1, 3.2 and 3.3, 5.1 Completion shall take place immediately after signature of this Agreement on the Completion DateDate at the offices of the Purchasers Solicitors at ▇▇ ▇▇▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇.
5.2. The obligations of each of 5.2 At Completion the Parties under Clause 5.3 below are interdependent of each other. The Completion shall not occur unless all of the obligations specified in Clause 5.3, have been simultaneously complied with and are fully effective.
5.3. On the Completion Date:
(i) Subject to deductions pursuant to Clause 4.4Seller, the Purchaser and the Guarantor shall remit do those things required of them as listed in Schedule 1 (Completion Arrangements).
5.3 Neither the Purchase Consideration Purchaser nor the Seller shall be obliged to complete this Agreement unless the Seller, the Purchaser or, as the case may be, the Guarantor complies to a material extent with the requirements of Schedule 1 (Completion Arrangements) (in immediately available funds) to the case of the Seller’s Bank Account.
(ii) The Seller shall (a) provide to its Depository Participant duly executed DP Instructions in the prescribed form for the transfer of the Sale Shares to the Demat Account of the Purchaser (details of which shall be provided , so far as it relates to the Seller in writing as soon as practicable after the Execution Date); (b) procure its Depository Participant to duly acknowledge such DP Instructions; (c) deliver a copy of such acknowledgement to the Purchaser; and (d) use best endeavours to procure credit question or any member of the Sale Shares Selling Group).
5.4 Neither the Purchaser nor the Seller shall be obliged to complete the Demat Account sale and purchase of any of the PurchaserShares unless the sale and purchase of all of the Shares is completed simultaneously. This clause shall not limit any other clause of this Agreement and in particular clause 15 (Remedies and Waivers).
5.5 If the respective obligations of the Seller and the Purchaser under clause 5.2 and Schedule 1 (iiiCompletion Arrangements) The are not complied with on the Completion Date the Purchaser or, as the case may be, the Seller shall, to the extent it is able to do so through exercise of its voting rights, procure that a Board meeting is held at which the following business shall be transactedmay:
(aA) the appointment of directors nominated by the Purchaser on the Board shall be approved; and
defer Completion (b) an extra-ordinary general meeting of the shareholders of the Company to approve the matters set out in Clause 5.3(iii)(a) and the amendment of the Articles of Association shall be convened.
5.4. This Agreement may be terminated on or prior to the Completion Date as follows:
(i) By the mutual written consent of the Purchaser and the Seller.
(ii) By the Seller, upon written notice to the Purchaser, if the conditions set out in Clauses 3.1 and 3.3 have not been satisfied (or satisfied subject only to Completion where applicable) or waived (where applicable) on or before 270 (two hundred seventy) days from the Execution Date or such later date as may be mutually agreed between the Parties in writing (“Long Stop Date”); provided that the Seller shall not be entitled to terminate this Agreement pursuant to this Clause 5.4(ii) if Seller’s breach of this Agreement has prevented or materially delayed the consummation of the Transactions (which term for the purposes of this Clause 5.4(ii) shall not include the Financing);
(iii) By the Purchaser, upon written notice to the Seller, if the conditions set out in Clauses 3.2 and 3.3 have not been satisfied (or satisfied subject only to Completion where applicable) or waived (where applicable) on or before the Long Stop Date; provided that the Purchaser shall not be entitled to terminate this Agreement pursuant to this Clause 5.4(iii) if Purchaser’s breach of this Agreement has prevented or materially delayed the consummation of the Transactions.
(iv) By the Seller (if the Seller is not in material breach of the Seller Warranties, covenants or agreements under this Agreement so as to cause any of the conditions set forth in Clause 3.2 and/or 3.3(i) not to be satisfied), upon written notice to the Purchaser, if there has been a material inaccuracy of any statement or warranty, or any unremedied material breach of a covenant or other agreement, of the Purchaser contained in this Agreement, which violation, breach or inaccuracy would cause any of the conditions set forth in Clause 3.1 and/or 3.3 not to be satisfied as of the Completion Date, and such violation, breach or inaccuracy has not been waived by the Seller or cured by the Purchaser within 20 (twenty) Business Days after receipt by the Purchaser of written notice thereof from the Seller or is not reasonably capable of being cured prior to the Long Stop Date.
(v) By the Purchaser (if the Purchaser is not in material breach of the Purchaser Warranties, covenants or agreements under this Agreement so as to cause any of the conditions set forth in Clause 3.1 and/or 3.3 not to be satisfied), upon written notice to the Seller, if there has been a material inaccuracy of any statement or warranty, or any unremedied material breach of a covenant or other agreement, of the Seller contained in this Agreement, which violation, breach or inaccuracy would cause any of the conditions set forth in Clauses 3.2 and/or 3.3(i) not to be satisfied as of the Completion Date, and such violation, breach or inaccuracy has not been waived by the Purchaser or cured by the Seller within 20 (twenty) Business Days after receipt by the Seller of written notice thereof from the Purchaser or is not reasonably capable of being cured prior to the Long Stop Date.
(vi) By the Seller or the Purchaser, upon written notice to the other, if a court of competent jurisdiction or any other Governmental Authority shall have issued a final, non-appealable order preventing or otherwise prohibiting the consummation of the Transactions.
5.5. If this Agreement is terminated prior to Completion in accordance with Clause 5.4 above,
(i) this Agreement shall become void and of no further force and effect; provided, however, that the provisions of this Clause 5.5 clause 5 shall apply to Completion as so deferred); or
(B) proceed to Completion as far as practicable (without limiting its rights under this Agreement); or
(C) terminate this Agreement by notice in writing to the other party.
5.6 Payment by telegraphic transfer for the amount stated in clauses 3.1(A) and Clauses 4 in accordance with paragraph 9 of Schedule 1 (Definitions and Interpretation), 11 (Announcements and Confidentiality), 12 (Notices), 13 (Governing Law, Disputes and Jurisdiction), 14.1 (Entire Agreement), 14.6 (Variation), 14.7 (No Assignment), 14.8 (Waiver), 14.9 (Severability), 14.10 (Supersession) and 14.11 (ExpensesCompletion Arrangements) shall survive constitute payment of the termination consideration for the Shares and shall discharge the obligations of the Purchaser under those clauses .
5.7 In consideration of the Purchaser entering into this Agreement indefinitely the Seller:
(A) confirms that neither it nor any of its related companies has any claim of any kind (actual or contingent) against the Company on any account except under the Business Transaction Documentation or in respect of amounts due and that nothing herein shall relieve any Party from any liability payable for fraud or any breach goods and services supplied by way of trading in the provisions ordinary course of this Agreement prior to such terminationbusiness; and
(iiB) irrevocably and unconditionally waives and undertakes to procure that each of its related companies shall waive with effect from Completion any claim (actual or contingent) which any of them may have against the Company except for those identified in clause 5.7 (A).
5.8 The Seller declares that for so long as it remains the registered holder of any of the Shares after Completion it shall:
(A) hold the Shares and the dividends and other distributions of profits or surplus or other assets declared, paid or made in respect of them after Completion and all rights arising out of or in connection with them in trust for the Purchaser and any successors in title to the Purchaser; and
(B) deal with and dispose of the Shares and all such dividends, distributions and rights as are described in clause 5.8(A) above as the Purchaser or any such successor may direct.
5.9 The Seller appoints the Purchaser as its lawful attorney for the purpose of signing any written resolution (or receiving notices of and attending and voting at all meetings) of the members of the Company from Completion to the day on which the Purchaser or its nominee is entered in the register of members of the Company as the holder of the Shares and for that purpose the Seller authorises:
(A) The Company to send any written resolutions, notices or other communications in respect of its holding of Shares to the Purchaser; and
(B) The Purchaser to complete in such manner as it thinks fit and to return written resolutions, proxy forms, consents to short notice and any other document required to be signed by it in its capacity as a member.
5.10 The Seller covenants with the Purchaser that the Seller shall pay to the Company an amount equal to the aggregate amount of all claims (if applicableany) made against the Company by any director or secretary of the Company resigning on Completion or otherwise by reason of this Agreement and arising from that resignation or from the termination of the employment of any such person by reason of this Agreement together with an amount equal to the aggregate of all costs, charges and expenses incurred by the Company arising from any such claim.
5.11 At Completion, the Observer shall no longer be entitled Company is to attend enter into the meetings Licence to Occupy as set out in Schedule 1. The Company agrees that, if requested to do so by the Seller upon the expiry of the Board (or any committee thereof) and Licence to Occupy, it will enter into a further licence to occupy with the nominees of the Purchaser appointed Seller on the Board in accordance with Clause 6.2 shall resign with immediate effectsame terms and conditions as the Licence to Occupy for a further 6 month period.
Appears in 1 contract
Completion. 5.1. 5.1 Subject to the conditions set out in Clauses 3.1satisfaction or, 3.2 and 3.3where applicable, waiver of the Conditions, Completion shall take place at the Hong Kong office of the Hong Kong legal advisers of the Vendor at 11:00 a.m. on the Completion DateDate or at such other place or time as may be agreed between the Parties, at which time the following business shall be simultaneously transacted.
5.2. The (a) Against the compliance by the Purchase of his obligations of each of the Parties under Clause 5.3 below are interdependent of each other. The Completion 5.1(b), the Vendor shall not occur unless all of deliver to the obligations specified in Clause 5.3, have been simultaneously complied with and are fully effective.
5.3. On the Completion DatePurchaser:
(i) Subject to deductions pursuant to Clause 4.4, an instrument of transfer duly executed by the Vendor as the transferor of the Sale Shares in favour of the Purchaser shall remit as the Purchase Consideration (in immediately available funds) to the Seller’s Bank Account.transferee; and
(ii) The Seller shall (a) provide to its Depository Participant duly executed DP Instructions in the prescribed form for the transfer certified true copy board minutes or written resolutions of the Sale Shares to directors of ▇▇▇▇▇ ▇▇▇▇▇▇▇ and the Demat Account Vendor approving the execution and completion of the Purchaser (details of which shall be provided to the Seller in writing as soon as practicable after the Execution Date); (b) procure its Depository Participant to duly acknowledge such DP Instructions; (c) deliver a copy of such acknowledgement to the Purchaser; this Agreement and (d) use best endeavours to procure credit of the Sale Shares to the Demat Account of the Purchaserall transactions contemplated hereby.
(iii) The Seller shall, to the extent it is able to do so through exercise of its voting rights, procure that a Board meeting is held at which the following business shall be transacted:
(a) the appointment of directors nominated by the Purchaser on the Board shall be approved; and
(b) an extra-ordinary general meeting of the shareholders of the Company to approve the matters set out in Clause 5.3(iii)(a) and the amendment of the Articles of Association shall be convened.
5.4. This Agreement may be terminated on or prior to the Completion Date as followsThe Purchaser shall:
(i) By pay the mutual written consent Balance in accordance with the provisions of the Purchaser and the Seller.Clause 3.1(b); and
(ii) By the Seller, upon written notice deliver to the Vendor:
(1) a certified true copy of the board resolutions of CY Food approving the execution, delivery and performance of the Deed of Assignment and the Leaseback Agreement (if applicable);
(2) (if not already provided to the Vendor) an original of the duly executed Leaseback Agreement;
(3) an original of the Deed of Assignment duly executed by the parties thereto; and
(4) a written confirmation, in the agreed form, signed by the Purchaser that the Purchaser is not aware of any matter or thing which is a breach or inconsistent with any of the Purchaser, if ’s Warranties.
5.2 If all the conditions set out in Clauses 3.1 and 3.3 Conditions have not been satisfied (or satisfied subject only to Completion where applicable) or waived (where applicable) on or before 270 (two hundred seventy) days from the Execution Date or such later date as may be mutually agreed between the Parties in writing (“Long Stop Date”); provided that the Seller shall not be entitled to terminate this Agreement pursuant to this Clause 5.4(ii) if Seller’s breach of this Agreement has prevented or materially delayed the consummation of the Transactions (which term for the purposes of this Clause 5.4(ii) shall not include the Financing);
(iii) By the Purchaser, upon written notice to the Seller, if the conditions set out in Clauses 3.2 and 3.3 have not been satisfied (or satisfied subject only to Completion where applicable) or waived (where applicablepermitted) on or before the Long Stop Date; provided that Date but the Purchaser fails to complete the sale and purchase of the Sale Shares and the Sale Loan in accordance with the provisions of Clause 5, the Vendor shall not be entitled to terminate this Agreement pursuant forfeit the First Payment and upon which:
(a) neither Party shall be bound to this Clause 5.4(iii) if Purchaser’s breach of this Agreement has prevented or materially delayed proceed with the consummation sale and purchase of the Transactions.Sale Shares and the Sale Loan;
(ivb) By the Seller (if the Seller is not in material breach of the Seller Warranties, covenants or agreements under this Agreement so as to cause any of the conditions set forth in Clause 3.2 and/or 3.3(i) not to be satisfied), upon written notice to the Purchaser, if there has been a material inaccuracy of any statement or warranty, or any unremedied material breach of a covenant or other agreement, of the Purchaser contained in this Agreement, save for Clauses 9, 10, 11 and 12 which violationshall remain in full force and effect, breach or inaccuracy would cause shall cease to have any of the conditions set forth in Clause 3.1 and/or 3.3 not to be satisfied as of the Completion Date, and such violation, breach or inaccuracy has not been waived by the Seller or cured by the Purchaser within 20 (twenty) Business Days after receipt by the Purchaser of written notice thereof from the Seller or is not reasonably capable of being cured prior to the Long Stop Date.
(v) By the Purchaser (if the Purchaser is not in material breach of the Purchaser Warranties, covenants or agreements under this Agreement so as to cause any of the conditions set forth in Clause 3.1 and/or 3.3 not to be satisfied), upon written notice to the Seller, if there has been a material inaccuracy of any statement or warranty, or any unremedied material breach of a covenant or other agreement, of the Seller contained in this Agreement, which violation, breach or inaccuracy would cause any of the conditions set forth in Clauses 3.2 and/or 3.3(i) not to be satisfied as of the Completion Date, and such violation, breach or inaccuracy has not been waived by the Purchaser or cured by the Seller within 20 (twenty) Business Days after receipt by the Seller of written notice thereof from the Purchaser or is not reasonably capable of being cured prior to the Long Stop Date.
(vi) By the Seller or the Purchaser, upon written notice to the other, if a court of competent jurisdiction or any other Governmental Authority shall have issued a final, non-appealable order preventing or otherwise prohibiting the consummation of the Transactions.
5.5. If this Agreement is terminated prior to Completion in accordance with Clause 5.4 above,
(i) this Agreement shall become void and of no further force and effect; providedand
(c) neither Party shall have any claim against the other Party, however, that including but not limited to the right to seek specific performance (or damages in lieu) of any obligation of the other Party hereunder.
5.3 If all the Conditions have been satisfied or waived (where permitted) on or before the Long Stop Date but the Vendor fails to complete the sale and purchase of the Sale Shares and the Sale Loan in accordance with the provisions of Clause 5, the Vendor shall, within five (5) Business Days from the date on which Completion shall have taken place but for the failure of the Vendor to complete, refund the First Payment to the Purchaser and pay the Purchaser liquidated damages in an amount of HK$250,000. Upon refund of the First Payment and payment of the aforesaid liquidated damages by the Vendor to the Purchaser:
(a) neither Party shall be bound to proceed with the sale and purchase of the Sale Shares and the Sale Loan;
(b) this Clause 5.5 and Agreement, save for Clauses 1 (Definitions and Interpretation)9, 10, 11 (Announcements and Confidentiality)12 which shall remain in full force and effect, 12 (Notices), 13 (Governing Law, Disputes shall cease to have any further force and Jurisdiction), 14.1 (Entire Agreement), 14.6 (Variation), 14.7 (No Assignment), 14.8 (Waiver), 14.9 (Severability), 14.10 (Supersession) and 14.11 (Expenses) shall survive the termination of this Agreement indefinitely and that nothing herein shall relieve any Party from any liability for fraud or any breach of the provisions of this Agreement prior to such terminationeffect; and
(iic) if applicableneither Party shall have any claim against the other Party, including but not limited to the Observer shall no longer be entitled right to attend the meetings seek specific performance (or damages in lieu) of any obligation of the Board (or any committee thereof) and the nominees of the Purchaser appointed on the Board in accordance with Clause 6.2 shall resign with immediate effectother Party hereunder.
Appears in 1 contract
Sources: Share Purchase Agreement
Completion. 5.1. Subject to the conditions set out in Clauses 3.1, 3.2 and 3.3, 6.1 Completion shall take place at the offices of ▇▇▇▇▇ ▇▇▇▇▇▇▇ and ▇▇▇▇▇▇▇ P.C. ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ on the Completion Date.
5.2. The obligations Date when all (but not part only unless the parties shall so agree) of each of the Parties under Clause 5.3 below are interdependent of each other. The Completion shall not occur unless all of the obligations specified in Clause 5.3, have been simultaneously complied with and are fully effective.
5.3. On the Completion Date:
(i) Subject to deductions pursuant to Clause 4.4, the Purchaser shall remit the Purchase Consideration (in immediately available funds) to the Seller’s Bank Account.
(ii) The Seller shall (a) provide to its Depository Participant duly executed DP Instructions in the prescribed form for the transfer of the Sale Shares to the Demat Account of the Purchaser (details of which shall be provided to the Seller in writing as soon as practicable after the Execution Date); (b) procure its Depository Participant to duly acknowledge such DP Instructions; (c) deliver a copy of such acknowledgement to the Purchaser; and (d) use best endeavours to procure credit of the Sale Shares to the Demat Account of the Purchaser.
(iii) The Seller shall, to the extent it is able to do so through exercise of its voting rights, procure that a Board meeting is held at which the following business shall be transacted:
(a) the appointment of directors nominated Vendor shall deliver to the Purchaser or make available for collection by the Purchaser on or its authorised representatives at the Board Property all of the Assets title to which is capable of passing by delivery when title to such assets shall be approved; andpass to the Purchaser;
(b) an extra-ordinary general meeting the Vendor shall deliver into the possession of the shareholders Purchaser (or as it shall direct) the following:
(i) such documents as may be required to give good title to the Assets and vest title to the Assets in the Purchaser;
(ii) all books of account and other financial records, payroll records, stock and other records, information relating to customers and suppliers (including but not limited to a list of all of the Company customers of the Business during the last two years, and a list of unfulfilled orders as at the Completion Date), relevant computer programs and other books and documents which relate to approve the matters set out in Clause 5.3(iii)(aBusiness;
(iii) all designs and drawings, plans, instructional and promotional material, sales publications, advertising materials, other technical material and sales matter which relate to the Business;
(iv) a list of sales distributors, identifying sales by units and the amendment territory served during the last twelve months, and copies of all the current agreements with such distributors;
(v) the PAYE and NIC Records relating to each of the Articles Employees duly completed and up-to-date;
(vi) the VAT Records;
(vii) all mortgages or charges over the Assets (or any of Association them) duly vacated or (if the mortgages or charges also relate to other property) duly executed release of the Assets from such mortgages or charges together with letters of non-crystallisation in relation to such charges;
(viii) a certified copy of the special resolution resolving to change the name of the Vendor pursuant to clause 12;
(ix) duly executed assignments of the Intellectual Property Rights;
(x) the Opinion;
(c) the cash sums payable under this Agreement by the Purchaser, or as the case may be the Vendor shall be convened.
5.4. This Agreement may be terminated on or prior to the Completion Date paid by electronic transfer as follows:
(i) By in the mutual written consent case of any sums payable to the Vendor to the Nominated Account and payment of the Completion Payment into such account shall constitute a good discharge to the Purchaser and the Seller.in respect of it;
(ii) By the Seller, upon written notice in respect of any sums payable to the Purchaser, if the conditions set out to an account to be nominated in Clauses 3.1 and 3.3 have not been satisfied (or satisfied subject only to Completion where applicable) or waived (where applicable) on or before 270 (two hundred seventy) days writing by notice from the Execution Date or such later date as may Purchaser to the Vendor (a copy to be mutually agreed between the Parties in writing (“Long Stop Date”); provided that the Seller shall not be entitled to terminate this Agreement pursuant to this Clause 5.4(ii) Fleet Bank if Seller’s breach of this Agreement has prevented or materially delayed the consummation of the Transactions (which term for the purposes of this Clause 5.4(ii) shall not include the Financingapplicable);
(iii) By in respect of the Purchaser, upon written notice to the Seller, if the conditions set out Retention Sum in Clauses 3.2 and 3.3 have not been satisfied accordance with clause 3;
(or satisfied subject only to Completion where applicabled) or waived (where applicable) on or before the Long Stop Date; provided that the Purchaser and the Vendor shall not be entitled to terminate this Agreement pursuant to this Clause 5.4(iii) if Purchaser’s breach of this Agreement has prevented or materially delayed enter into the consummation of the TransactionsProperty Licence.
(iv) By 6.2 If the Seller (if Vendor shall fail to perform any obligation under this clause 6, the Seller is not in material breach of the Seller Warranties, covenants Purchaser may without prejudice to its rights or agreements remedies under this Agreement so as or under the general law:
(a) defer Completion with respect to cause any some or all of the conditions set forth Assets to a date not more than twenty eight days after the Completion Date (in Clause 3.2 and/or 3.3(iwhich case this sub-clause 6.2
(a) not shall apply to be satisfiedCompletion as so deferred); or
(b) proceed to Completion so far as practicable (including, upon written notice to at the Purchaser's option, if there has been a material inaccuracy of any statement or warranty, or any unremedied material breach of a covenant or other agreement, completion of the Purchaser contained in purchase of some only of the Assets); or
(c) determine this Agreement, which violation, breach or inaccuracy would cause any of the conditions set forth in Clause 3.1 and/or 3.3 not to be satisfied as of the Completion Date, and such violation, breach or inaccuracy has not been waived by the Seller or cured by the Purchaser within 20 (twenty) Business Days after receipt by the Purchaser of written notice thereof from the Seller or is not reasonably capable of being cured prior to the Long Stop Date.
(v) By the Purchaser (if the Purchaser is not in material breach of the Purchaser Warranties, covenants or agreements under this Agreement so as 6.3 Upon determination pursuant to cause any of the conditions set forth in Clause 3.1 and/or 3.3 not to be satisfied), upon written notice to the Seller, if there has been a material inaccuracy of any statement or warranty, or any unremedied material breach of a covenant or other agreement, of the Seller contained in this Agreement, which violation, breach or inaccuracy would cause any of the conditions set forth in Clauses 3.2 and/or 3.3(i) not to be satisfied as of the Completion Date, and such violation, breach or inaccuracy has not been waived by the Purchaser or cured by the Seller within 20 (twenty) Business Days after receipt by the Seller of written notice thereof from the Purchaser or is not reasonably capable of being cured prior to the Long Stop Date.
(vi) By the Seller or the Purchaser, upon written notice to the other, if a court of competent jurisdiction or any other Governmental Authority shall have issued a final, non-appealable order preventing or otherwise prohibiting the consummation of the Transactions.
5.5. If this Agreement is terminated prior to Completion in accordance with Clause 5.4 above,
(i) this Agreement shall become void and of no further force and effect; provided, however, that the provisions of this Clause 5.5 and Clauses 1 (Definitions and Interpretation), 11 (Announcements and Confidentiality), 12 (Notices), 13 (Governing Law, Disputes and Jurisdiction), 14.1 (Entire Agreement), 14.6 (Variation), 14.7 (No Assignment), 14.8 (Waiver), 14.9 (Severability), 14.10 (Supersession) and 14.11 (Expenses) shall survive the termination of this Agreement indefinitely and that nothing herein shall relieve any Party from any liability for fraud or any breach of the provisions of this Agreement prior to such termination; and
(ii) if applicable, the Observer shall no longer be entitled to attend the meetings of the Board (or any committee thereof) and the nominees of the Purchaser appointed on the Board in accordance with Clause 6.2 shall resign with immediate effect.clause 6.2
Appears in 1 contract
Sources: Agreement for the Sale and Purchase of the Business and Assets (Quad Systems Corp /De/)
Completion. 5.1. Subject to 4.1 The sale and purchase of the conditions set out in Clauses 3.1, 3.2 and 3.3, Completion Shares shall take place on the Completion Date.
5.2. The obligations Delivery of each of the Parties under Clause 5.3 below are interdependent of each other. The Completion shall not occur unless all of the obligations specified in Clause 5.3, have been simultaneously complied with and are fully effective.
5.3. On the Completion Date:
(i) Subject to deductions pursuant to Clause 4.4, the Purchaser shall remit the Purchase Consideration (in immediately available funds) Documents relating to the Seller’s Bank Account.Shares
(ii) 4.2 The Seller shall deliver or procure to be delivered to the Purchaser at Completion the following documents (ato the extent not already delivered):
(A) provide to its Depository Participant duly executed DP Instructions transfer of the Shares in favour of the Purchaser or as it may direct accompanied by the relevant share certificates;
(B) such waivers or consents as the Purchaser may require signed by each member of the Companies to enable the Purchaser or its nominees to be registered as holders of the Shares;
(C) the statutory books of each Company which include for the avoidance of doubt the Register of Members of that Company (which shall be written up to but not including the date of Completion), the certificate of incorporation and common seal (if any) of that Company;
(D) a copy of the minutes of the meeting of the directors of the Seller, in a form reasonably approved by the Purchaser, authorising the execution, delivery and performance by the Seller of this Agreement such copy to be certified as being correct and remaining in full force and effect, without modification, by the secretary of the Seller;
(E) all records, books and other documents relevant to the Tax affairs of any of the Companies;
(F) legal opinions as to due authorisation and enforceability from Appleby, Sperling & Kemp the Seller's and LaSalle's counsel, in the prescribed ▇▇▇▇▇d F▇▇▇ and annexed hereto as Annex M; and
(G) a confirmatory receipt signed by the Seller in a form reasonably acceptable to the Purchaser for the purchase price of the shares paid by the Purchaser. Resolutions of the Companies
4.3 The Directors of each Company shall pass resolutions approving the registration of the transfer of the Sale Shares (which relate to the Demat Account of the Purchaser (details of which shall be provided that Company) referred to the Seller in writing as soon as practicable after the Execution Date); (b) procure its Depository Participant to duly acknowledge such DP Instructions; (c) deliver a copy of such acknowledgement to the Purchaser; and (d) use best endeavours to procure credit of the Sale Shares to the Demat Account of the Purchaser.
(iii) The Seller shall, to the extent it is able to do so through exercise of its voting rights, procure that a Board meeting is held at which the following business shall be transacted:
(a) the appointment of directors nominated by the Purchaser on the Board shall be approved; and
(b) an extra-ordinary general meeting of the shareholders of the Company to approve the matters set out in Clause 5.3(iii)(a) and the amendment of the Articles of Association shall be convened.
5.4. This Agreement may be terminated on or prior to the Completion Date as follows:
(i) By the mutual written consent of the Purchaser and the Seller.
(ii) By the Seller4.2, upon written notice to the Purchaser, if the conditions set out in Clauses 3.1 and 3.3 have not been satisfied (or satisfied subject only to Completion where their being duly stamped (if applicable) or waived (where applicable) on or before 270 (two hundred seventy) days from and shall hand to the Execution Date or Purchaser duly certified copies of such later date as may be mutually agreed between resolutions at Completion.
4.4 At Completion, if not already entered into, the Parties in writing (“Long Stop Date”); provided Directors shall procure that the Seller shall not be entitled to terminate this Agreement pursuant to this Clause 5.4(iiCompanies and Trenwick UK Management Services Limited (number 2733994) if Seller’s breach of this Agreement has prevented or materially delayed enter into the consummation of the Transactions (which term for the purposes of this Clause 5.4(ii) shall not include the Financing);
(iii) By the Purchaser, upon written notice to the Seller, if the conditions set out in Clauses 3.2 and 3.3 have not been satisfied (or satisfied subject only to Completion where applicable) or waived (where applicable) on or before the Long Stop Date; provided that the Purchaser shall not be entitled to terminate this Agreement pursuant to this Clause 5.4(iii) if Purchaser’s breach of this Agreement has prevented or materially delayed the consummation of the TransactionsCorporate Services Agreement.
(iv) By the Seller (if the Seller is not in material breach of the Seller Warranties, covenants or agreements under this Agreement so as to cause any of the conditions set forth in Clause 3.2 and/or 3.3(i) not to be satisfied), upon written notice to the Purchaser, if there has been a material inaccuracy of any statement or warranty, or any unremedied material breach of a covenant or other agreement, of the Purchaser contained in this Agreement, which violation, breach or inaccuracy would cause any of the conditions set forth in Clause 3.1 and/or 3.3 not to be satisfied as of the Completion Date, and such violation, breach or inaccuracy has not been waived by the Seller or cured by the Purchaser within 20 (twenty) Business Days after receipt by the Purchaser of written notice thereof from the Seller or is not reasonably capable of being cured prior to the Long Stop Date.
(v) By the Purchaser (if the Purchaser is not in material breach of the Purchaser Warranties, covenants or agreements under this Agreement so as to cause any of the conditions set forth in Clause 3.1 and/or 3.3 not to be satisfied), upon written notice to the Seller, if there has been a material inaccuracy of any statement or warranty, or any unremedied material breach of a covenant or other agreement, of the Seller contained in this Agreement, which violation, breach or inaccuracy would cause any of the conditions set forth in Clauses 3.2 and/or 3.3(i) not to be satisfied as of the Completion Date, and such violation, breach or inaccuracy has not been waived by the Purchaser or cured by the Seller within 20 (twenty) Business Days after receipt by the Seller of written notice thereof from the Purchaser or is not reasonably capable of being cured prior to the Long Stop Date.
(vi) By the Seller or the Purchaser, upon written notice to the other, if a court of competent jurisdiction or any other Governmental Authority shall have issued a final, non-appealable order preventing or otherwise prohibiting the consummation of the Transactions.
5.5. If this Agreement is terminated prior to Completion in accordance with Clause 5.4 above,
(i) this Agreement shall become void and of no further force and effect; provided, however, that the provisions of this Clause 5.5 and Clauses 1 (Definitions and Interpretation), 11 (Announcements and Confidentiality), 12 (Notices), 13 (Governing Law, Disputes and Jurisdiction), 14.1 (Entire Agreement), 14.6 (Variation), 14.7 (No Assignment), 14.8 (Waiver), 14.9 (Severability), 14.10 (Supersession) and 14.11 (Expenses) shall survive the termination of this Agreement indefinitely and that nothing herein shall relieve any Party from any liability for fraud or any breach of the provisions of this Agreement prior to such termination; and
(ii) if applicable, the Observer shall no longer be entitled to attend the meetings of the Board (or any committee thereof) and the nominees of the Purchaser appointed on the Board in accordance with Clause 6.2 shall resign with immediate effect.
Appears in 1 contract
Completion. 5.1. 6.1 Subject to the conditions set out in Clauses 3.1due satisfaction (or waiver, 3.2 and 3.3if applicable) of the Conditions Precedent, Completion shall take place at the offices of the Purchaser’s Solicitors on the Completion DateDate or at such other place and/or on such other date as may be agreed between the parties in writing in accordance with the terms of this Agreement.
5.2. The obligations of 6.2 At Completion each of the Parties under Clause 5.3 below are interdependent of Sellers severally and not jointly shall take any reasonable action required to be taken by it to cause a board meeting for the Company and each other. The Completion shall not occur unless all of the obligations specified Subsidiary Companies to be duly convened and held to approve the transfers of the Shares as contemplated by Clause 2.1 for registration and table the resignations referred to in Schedule 3, Clause 5.32.6. Completion is conditional upon the Purchaser and the Sellers having received confirmation from the Bermuda Monetary Authority (“BMA”) that there is no objection to, have been simultaneously complied with or alternatively having received a notice of approval of, the acquisition of the Company, and are fully effectiveindirectly the acquisition of any of the Subsidiary Companies, by the Purchaser.
5.3. On the Completion Date:
(i) Subject to deductions pursuant to Clause 4.46.3 At Completion, the Purchaser shall remit (i) pay or procure the Purchase payment of the Cash Consideration (to each of the Sellers as contemplated by Clause 4.1 in immediately available funds) accordance with the wire instructions to be provided by each Seller to the Seller’s Bank Account.
Purchaser separately and shall promptly after initiation of each wire provide wire tracking numbers to the Sellers’ Solicitors and (ii) The Seller shall (a) provide deposit the Escrow Amount with the Escrow Agent pursuant to its Depository Participant duly executed DP Instructions in the prescribed form terms of the Escrow Agreement as contemplated by Clause 4.1 and Clause 4.4.
6.4 To the extent that the Escrow Account is later reduced pursuant to Clause 4.4.4 the Purchaser will seek banking instructions for the transfer of the Sale Shares to the Demat Account of the Purchaser (details of which shall be provided to the Seller in writing as soon as practicable after the Execution Date); (b) procure its Depository Participant to duly acknowledge such DP Instructions; (c) deliver a copy of such acknowledgement to the Purchaser; and (d) use best endeavours to procure credit of the Sale Shares to the Demat Account of the PurchaserSellers at that time.
(iii) The Seller shall, to the extent it is able to do so through exercise of its voting rights, procure that a Board meeting is held at which the following business shall be transacted:
(a) the appointment of directors nominated by the Purchaser on the Board shall be approved; and
(b) an extra-ordinary general meeting of the shareholders of the Company to approve the matters set out in Clause 5.3(iii)(a) and the amendment of the Articles of Association shall be convened.
5.4. This Agreement may be terminated on or prior to the Completion Date as follows:
(i) By the mutual written consent of the Purchaser and the Seller.
(ii) By the Seller, upon written notice to the Purchaser, if the conditions set out in Clauses 3.1 and 3.3 have not been satisfied (or satisfied subject only to Completion where applicable) or waived (where applicable) on or before 270 (two hundred seventy) days from the Execution Date or such later date as may be mutually agreed between the Parties in writing (“Long Stop Date”); provided that the Seller shall not be entitled to terminate this Agreement pursuant to this Clause 5.4(ii) if Seller’s breach of this Agreement has prevented or materially delayed the consummation of the Transactions (which term for the purposes of this Clause 5.4(ii) shall not include the Financing);
(iii) By the Purchaser, upon written notice to the Seller, if the conditions set out in Clauses 3.2 and 3.3 have not been satisfied (or satisfied subject only to Completion where applicable) or waived (where applicable) on or before the Long Stop Date; provided that the Purchaser shall not be entitled to terminate this Agreement pursuant to this Clause 5.4(iii) if Purchaser’s breach of this Agreement has prevented or materially delayed the consummation of the Transactions.
(iv) By the Seller (if the Seller is not in material breach of the Seller Warranties, covenants or agreements under this Agreement so as to cause any of the conditions set forth in Clause 3.2 and/or 3.3(i) not to be satisfied), upon written notice to the Purchaser, if there has been a material inaccuracy of any statement or warranty, or any unremedied material breach of a covenant or other agreement, of the Purchaser contained in this Agreement, which violation, breach or inaccuracy would cause any of the conditions set forth in Clause 3.1 and/or 3.3 not to be satisfied as of the Completion Date, and such violation, breach or inaccuracy has not been waived by the Seller or cured by the Purchaser within 20 (twenty) Business Days after receipt by the Purchaser of written notice thereof from the Seller or is not reasonably capable of being cured prior to the Long Stop Date.
(v) By the Purchaser (if the Purchaser is not in material breach of the Purchaser Warranties, covenants or agreements under this Agreement so as to cause any of the conditions set forth in Clause 3.1 and/or 3.3 not to be satisfied), upon written notice to the Seller, if there has been a material inaccuracy of any statement or warranty, or any unremedied material breach of a covenant or other agreement, of the Seller contained in this Agreement, which violation, breach or inaccuracy would cause any of the conditions set forth in Clauses 3.2 and/or 3.3(i) not to be satisfied as of the Completion Date, and such violation, breach or inaccuracy has not been waived by the Purchaser or cured by the Seller within 20 (twenty) Business Days after receipt by the Seller of written notice thereof from the Purchaser or is not reasonably capable of being cured prior to the Long Stop Date.
(vi) By the Seller or the Purchaser, upon written notice to the other, if a court of competent jurisdiction or any other Governmental Authority shall have issued a final, non-appealable order preventing or otherwise prohibiting the consummation of the Transactions.
5.5. If this Agreement is terminated prior to Completion in accordance with Clause 5.4 above,
(i) this Agreement shall become void and of no further force and effect; provided, however, that the provisions of this Clause 5.5 and Clauses 1 (Definitions and Interpretation), 11 (Announcements and Confidentiality), 12 (Notices), 13 (Governing Law, Disputes and Jurisdiction), 14.1 (Entire Agreement), 14.6 (Variation), 14.7 (No Assignment), 14.8 (Waiver), 14.9 (Severability), 14.10 (Supersession) and 14.11 (Expenses) shall survive the termination of this Agreement indefinitely and that nothing herein shall relieve any Party from any liability for fraud or any breach of the provisions of this Agreement prior to such termination; and
(ii) if applicable, the Observer shall no longer be entitled to attend the meetings of the Board (or any committee thereof) and the nominees of the Purchaser appointed on the Board in accordance with Clause 6.2 shall resign with immediate effect.
Appears in 1 contract
Completion. 5.1. Subject to the conditions set out in Clauses 3.1, 3.2 and 3.3, 5.1 Completion shall take place on at the Completion Dateexecution of this Agreement or such other date agreed in writing between the Parties.
5.2. The obligations of each of the Parties under Clause 5.3 below are interdependent of each other. The Completion shall not occur unless all of the obligations specified in Clause 5.3, have been simultaneously complied with and are fully effective.
5.3. 5.2 On the Completion Date, the following shall take place concurrently:
5.2.1 the Purchaser shall:
(a) allot and issue the Consideration Shares to the Vendors in the manner as set out in Schedule 1 credited as fully paid; and
(b) deliver or procure to be delivered to each Vendor, copies of the Purchaser’s duly completed and signed counterpart of the share transfer form (in such prescribed forms under the applicable laws and/or the constitutional documents of the Company) in respect of the Sale Shares; and
(c) deliver or procure to be delivered to each Vendor a copy of the written resolutions of the Purchaser’s board of directors, approving the allotments and issuance of the Consideration Shares to the Vendors in the manner as set out in Schedule 1; and
(d) deliver or procure to be delivered to each Vendor a copy of the updated register of members of the Purchaser reflecting the allotments and issuance of the Consideration Shares to the Vendors in the manner as set out in Schedule 1;
5.2.2 each Vendor or any director of the Company (as the case may be) shall deliver or procure to be delivered to the Purchaser:
(a) copies of the duly completed and signed counterpart of the share transfer form (in such prescribed forms under the applicable laws and/or the constitutional documents of the Company) in favour of the Purchaser by each Vendor, in respect of the Sale Shares, together with the duly sealed original share certificates;
(b) a copy or extract of the meeting minutes or written resolutions of the Company's board of directors approving:
(i) Subject to deductions pursuant to Clause 4.4, the Purchaser shall remit the Purchase Consideration (in immediately available funds) to the Seller’s Bank Account.
(ii) The Seller shall (a) provide to its Depository Participant duly executed DP Instructions in the prescribed form for the transfer of the Sale Shares to the Demat Account of the Purchaser (details of which shall be provided to the Seller in writing as soon as practicable after the Execution Date); (b) procure its Depository Participant to duly acknowledge such DP Instructions; (c) deliver a copy of such acknowledgement to the Purchaser; and (d) use best endeavours to procure credit of the Sale Shares to the Demat Account of the Purchaser.
(iii) The Seller shall, to the extent it is able to do so through exercise of its voting rights, procure that a Board meeting is held at which the following business shall be transacted:
(a) the appointment of directors nominated by the Purchaser on the Board shall be approved; and
(b) an extra-ordinary general meeting of the shareholders of the Company to approve the matters set out in Clause 5.3(iii)(a) and the amendment of the Articles of Association shall be convened.
5.4. This Agreement may be terminated on or prior to the Completion Date as follows:
(i) By the mutual written consent of the Purchaser and the Seller.;
(ii) By the Seller, upon written notice to the Purchaser, if the conditions set out in Clauses 3.1 cancellation of any and 3.3 have not been satisfied (or satisfied subject only to Completion where applicable) or waived (where applicable) on or before 270 (two hundred seventy) days from the Execution Date or such later date as may be mutually agreed between the Parties in writing (“Long Stop Date”); provided that the Seller shall not be entitled to terminate this Agreement pursuant to this Clause 5.4(ii) if Seller’s breach of this Agreement has prevented or materially delayed the consummation all of the Transactions (which term for share certificate(s) issued in the purposes name of this Clause 5.4(ii) shall not include the Financing)Vendors in respect of the Sale Shares;
(iii) By the Purchaser, upon written notice to execution and issuance of a new share certificate issued in the Seller, if the conditions set out in Clauses 3.2 and 3.3 have not been satisfied (or satisfied subject only to Completion where applicable) or waived (where applicable) on or before the Long Stop Date; provided that name of the Purchaser shall not be entitled to terminate this Agreement pursuant to this Clause 5.4(iii) if Purchaser’s breach of this Agreement has prevented or materially delayed the consummation in respect of the Transactions.Sale Shares;
(iv) By the Seller (if the Seller is not in material breach registered agent of the Seller Warranties, covenants or agreements under this Agreement so as Company to cause any update the register of the conditions set forth in Clause 3.2 and/or 3.3(i) not to be satisfied), upon written notice to the Purchaser, if there has been a material inaccuracy of any statement or warranty, or any unremedied material breach of a covenant or other agreement, of the Purchaser contained in this Agreement, which violation, breach or inaccuracy would cause any of the conditions set forth in Clause 3.1 and/or 3.3 not to be satisfied as of the Completion Date, and such violation, breach or inaccuracy has not been waived by the Seller or cured by the Purchaser within 20 (twenty) Business Days after receipt by the Purchaser of written notice thereof from the Seller or is not reasonably capable of being cured prior to the Long Stop Date.members; and
(v) By the making of such other entries into such other corporate records of the Company as may be necessary;
(c) such other papers and documents as the Purchaser (if may require.
5.2.3 upon fulfilment of the Purchaser is not in material breach obligations of the Purchaser Warranties, covenants or agreements under this Agreement so as to cause any and Vendors in Clauses 5.2.1 and 5.2.2 of the conditions set forth in Clause 3.1 and/or 3.3 not to be satisfied), upon written notice to the Seller, if there has been a material inaccuracy of any statement or warranty, or any unremedied material breach of a covenant or other agreement, of the Seller contained in this Agreement, which violation, breach the Vendors or inaccuracy would cause any director of the conditions set forth in Clauses 3.2 and/or 3.3(i) not Company shall direct the register agent to be satisfied as update the register of members of the Completion Date, and such violation, breach or inaccuracy has not been waived by Company to reflect the Purchaser or cured by as the Seller within 20 (twenty) Business Days after receipt by holder of the Seller Sale Shares whereupon the legal and beneficial ownership of written notice thereof from the Purchaser or is not reasonably capable of being cured prior Sale Shares shall be transferred to the Long Stop DatePurchaser.
(vi) By 5.2.4 The Consideration Shares shall, upon allotment and issuance, rank pari passu in all respects with the Seller or then existing issued shares in the Purchaser, upon written notice to the other, if a court of competent jurisdiction or any other Governmental Authority shall have issued a final, non-appealable order preventing or otherwise prohibiting the consummation of the Transactions.
5.5. If this Agreement is terminated prior to Completion in accordance with Clause 5.4 above,
(i) this Agreement shall become void and of no further force and effect; provided, however, that the provisions of this Clause 5.5 and Clauses 1 (Definitions and Interpretation), 11 (Announcements and Confidentiality), 12 (Notices), 13 (Governing Law, Disputes and Jurisdiction), 14.1 (Entire Agreement), 14.6 (Variation), 14.7 (No Assignment), 14.8 (Waiver), 14.9 (Severability), 14.10 (Supersession) and 14.11 (Expenses) shall survive the termination of this Agreement indefinitely and that nothing herein shall relieve any Party from any liability for fraud or any breach of the provisions of this Agreement prior to such termination; and
(ii) if applicable, the Observer shall no longer be entitled to attend the meetings of the Board (or any committee thereof) and the nominees of the Purchaser appointed on the Board in accordance with Clause 6.2 shall resign with immediate effect.
Appears in 1 contract
Sources: Share Sale and Purchase Agreement (Phaos Technology (Cayman) Holdings LTD)
Completion. 5.1. Subject to 9.1 Completion shall take place at 10am at the conditions set out Hong Kong offices of Debevoise & ▇▇▇▇▇▇▇▇ LLP on the last Business Day of the calendar month in Clauses 3.1which the last of the Conditions has been satisfied or waived, 3.2 provided that (i) Completion shall not take place before 28 January 2025; and 3.3(ii) if such satisfaction or waiver takes place less than 10 Business Days before the end of that calendar month, Completion shall take place at the same location and time on the last Business Day of the calendar month which immediately follows the calendar month in which such satisfaction or waiver takes place. Notwithstanding the above, Completion Datemay take place at such other location (including virtually), time or date as may otherwise be agreed between the Parties.
5.2. The obligations 9.2 At Completion, the Sellers shall observe and perform the provisions of each Part A of Schedule 2, provided that the Parties under Clause 5.3 below are interdependent of each other. The Completion shall not occur unless Purchaser may waive any or all of the obligations specified in Clause 5.3, have been simultaneously complied with and are fully effectivesuch provisions.
5.3. On the Completion Date:
(i) Subject to deductions pursuant to Clause 4.49.3 At Completion, the Purchaser shall remit observe and perform the Purchase Consideration provisions of Part B of Schedule 2, provided that the Sellers may waive any or all such provisions.
9.4 If a Party fails to comply with any obligation under Clause 9.2 or 9.3, the Purchaser, in the case of non-compliance by the Sellers, or the Sellers, in the case of non-compliance by the Purchaser, shall be entitled (in immediately available fundsaddition to and without prejudice to all other rights and remedies available) by written notice to the Seller’s Bank Account.
(ii) The Seller shall (a) provide to its Depository Participant duly executed DP Instructions in the prescribed form for the transfer of the Sale Shares to the Demat Account of the Purchaser (details of which shall be provided to the Seller in writing as soon as practicable after the Execution Date); (b) procure its Depository Participant to duly acknowledge such DP Instructions; (c) deliver a copy of such acknowledgement to the Purchaser; and (d) use best endeavours to procure credit of the Sale Shares to the Demat Account of the Purchaser.
(iii) The Seller shall, to the extent it is able to do so through exercise of its voting rights, procure that a Board meeting is held at which the following business shall be transactednon-compliant Party:
(a) if the appointment of directors nominated by Long Stop Date has passed, to terminate this Agreement (other than the Purchaser Surviving Clauses) without liability on the Board shall be approved; andits part;
(b) an extra-ordinary general meeting of the shareholders of the Company to approve the matters set out in Clause 5.3(iii)(a) and the amendment of the Articles of Association shall be convened.
5.4. This Agreement may be terminated on or prior effect Completion so far as practicable having regard to the Completion Date as follows:defaults which have occurred, including by exercising any right to specific performance; or
(ic) By to fix a new date for Completion (not being more than one month after the mutual written consent of the Purchaser and the Seller.
(iiagreed date for Completion) By the Seller, upon written notice to the Purchaser, if the conditions set out in Clauses 3.1 and 3.3 have not been satisfied (or satisfied subject only to Completion where applicable) or waived (where applicable) on or before 270 (two hundred seventy) days from the Execution Date or such later date as may be mutually agreed between the Parties in writing (“Long Stop Date”); provided that the Seller shall not be entitled to terminate this Agreement pursuant to this Clause 5.4(ii) if Seller’s breach of this Agreement has prevented or materially delayed the consummation of the Transactions (which term for the purposes of this Clause 5.4(ii) shall not include the Financing);
(iii) By the Purchaser, upon written notice to the Seller, if the conditions set out in Clauses 3.2 and 3.3 have not been satisfied (or satisfied subject only to Completion where applicable) or waived (where applicable) on or before the Long Stop Date; provided that the Purchaser shall not be entitled to terminate this Agreement pursuant to this Clause 5.4(iii) if Purchaser’s breach of this Agreement has prevented or materially delayed the consummation of the Transactions.
(iv) By the Seller (if the Seller is not in material breach of the Seller Warranties, covenants or agreements under this Agreement so as to cause any of the conditions set forth in Clause 3.2 and/or 3.3(i) not to be satisfied), upon written notice to the Purchaser, if there has been a material inaccuracy of any statement or warranty, or any unremedied material breach of a covenant or other agreement, of the Purchaser contained in this Agreement, which violation, breach or inaccuracy would cause any of the conditions set forth in Clause 3.1 and/or 3.3 not to be satisfied as of the Completion Date, and such violation, breach or inaccuracy has not been waived by the Seller or cured by the Purchaser within 20 (twenty) Business Days after receipt by the Purchaser of written notice thereof from the Seller or is not reasonably capable of being cured prior to the Long Stop Date.
(v) By the Purchaser (if the Purchaser is not in material breach of the Purchaser Warranties, covenants or agreements under this Agreement so as to cause any of the conditions set forth in Clause 3.1 and/or 3.3 not to be satisfied), upon written notice to the Seller, if there has been a material inaccuracy of any statement or warranty, or any unremedied material breach of a covenant or other agreement, of the Seller contained in this Agreement, which violation, breach or inaccuracy would cause any of the conditions set forth in Clauses 3.2 and/or 3.3(i) not to be satisfied as of the Completion Date, and such violation, breach or inaccuracy has not been waived by the Purchaser or cured by the Seller within 20 (twenty) Business Days after receipt by the Seller of written notice thereof from the Purchaser or is not reasonably capable of being cured prior to the Long Stop Date.
(vi) By the Seller or the Purchaser, upon written notice to the other, if a court of competent jurisdiction or any other Governmental Authority shall have issued a final, non-appealable order preventing or otherwise prohibiting the consummation of the Transactions.
5.5. If this Agreement is terminated prior to Completion in accordance with Clause 5.4 above,
(i) this Agreement shall become void and of no further force and effect; provided, however, that case the provisions of this Clause 5.5 Clauses 9.2 and Clauses 1 (Definitions and Interpretation), 11 (Announcements and Confidentiality), 12 (Notices), 13 (Governing Law, Disputes and Jurisdiction), 14.1 (Entire Agreement), 14.6 (Variation), 14.7 (No Assignment), 14.8 (Waiver), 14.9 (Severability), 14.10 (Supersession) and 14.11 (Expenses) 9.3 shall survive the termination of this Agreement indefinitely and that nothing herein shall relieve any Party from any liability for fraud or any breach of the provisions of this Agreement prior apply to Completion as so deferred but provided such termination; and
(ii) if applicable, the Observer shall no longer be entitled to attend the meetings of the Board (or any committee thereof) and the nominees of the Purchaser appointed on the Board in accordance with Clause 6.2 shall resign with immediate effectdeferral may only occur once.
Appears in 1 contract
Sources: Share Purchase Agreement
Completion. 5.1. 5.1 Subject to fulfilment of all the conditions set out in Clauses 3.1, 3.2 and 3.3Clause 4.1 or the effective waiver thereof in accordance with the terms of this Agreement, Completion shall take place at or before 4:00 p.m. (Hong Kong time) on the Completion Date.
5.2. The obligations of each of Date at such place as shall be agreed by the Parties under Clause 5.3 below are interdependent of each other. The Completion shall not occur unless parties hereto when all of the obligations specified in business required under Clause 5.3, have been simultaneously complied with and are fully effective5 shall be transacted.
5.3. On 5.2 The Vendor shall deliver or cause to be delivered to the Completion DatePurchaser:
5.2.1 in respect of the Sale Shares, duly executed instrument(s) of transfer and the related sold notes in respect of all such Sale Shares in favour of the Purchaser and/or such nominee(s) as the Purchaser may designate, such waivers or consents (if any) as the Purchaser may require to be signed by the Vendor to enable the Purchaser and/or its nominee(s) to be registered as a holder or holders of the Sale Shares;
5.2.2 the original certificate(s) for the Sale Shares;
5.2.3 contract notes (a) duly executed by (i) Subject to deductions pursuant to Clause 4.4, the Purchaser shall remit the Purchase Consideration (in immediately available funds) to the Seller’s Bank Account.
Vendor as transferor and (ii) The Seller shall (a) provide to its Depository Participant duly executed DP Instructions the Purchaser as transferee in the prescribed form for the transfer respect of the Sale Shares and (b) duly stamped;
5.2.4 a copy, certified as true and complete by a director of the Vendor, of the minutes of meeting or written resolutions of the board of directors of the Vendor approving, among other matters, this Agreement and the transactions contemplated thereby and authorising the execution (under seal, if required) by any of the Vendor’s directors of the said documents and other documents ancillary thereto.
5.3 Upon performance of all the obligations of the Vendor contained in Clauses 5.2, the Purchaser shall:
5.3.1 arrange for payment of the Total Share Consideration to the Demat Account Vendor:
(a) by way of allotment to the Vendor of 9,077,166 fully paid-up common shares duly issued by the Purchaser (details of which shall be provided “Consideration CHNR Shares”) with restriction thereon by a legend similar in effect to the Seller following “THE SECURITIES REFERENCED HEREIN HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”) OR QUALIFIED UNDER THE SECURITIES LAWS OF ANY STATE. THESE SECURITIES MAY NOT BE SOLD, OFFERED FOR SALE, PLEDGED, HYPOTHECATED, TRANSFERRED OR ASSIGNED IN THE ABSENCE OF AN EFFECTIVE REGISTRATION STATEMENT FOR OR QUALIFICATION OF THE SECURITIES UNDER APPLICABLE SECURITIES LAWS OR UNLESS SOLD, OFFERED FOR SALE, PLEDGED, HYPOTHECATED, TRANSFERRED OR ASSIGNED PURSUANT TO AN AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THOSE LAWS. THE COMPANY SHALL BE ENTITLED TO REQUIRE AN OPINION OF COUNSEL SATISFACTORY TO THE COMPANY THAT SUCH REGISTRATION IS NOT REQUIRED PRIOR TO ANY SALE, OFFER FOR SALE, PLEDGE, HYPOTHECATION, TRANSFER OR ASSIGNMENT OF THE SECURITIES.”;
(b) by means of updating the Purchaser’s register of members to record and give effect to such allotment and issuance of Consideration CHNR Shares and their registration in the name of the Vendor; and
(c) by delivering to the Vendor an undertaking in writing certifying that the obligations in sub-paragraph (a) and (b) above have been fulfilled and that the following documents will be delivered to the Vendor as post-Completion obligations as soon as practicable after the Execution Date); Completion: (bi) procure its Depository Participant to duly acknowledge such DP Instructions; (c) deliver a certified true copy of such acknowledgement to the updated register of members of the Purchaser; and where the Vendor requires (dii) use best endeavours to procure credit share certificate(s) in respect of the Sale Shares to Consideration CHNR Shares.
5.3.2 deliver a certified true copy of the Demat Account board resolutions of the Purchaser (certified as a true and complete copy by a director of the Purchaser) approving this Agreement and authorising one or more person(s) to execute and deliver this Agreement on its behalf (and to affix the common seal thereon, if applicable).
(iii) The Seller shall5.4 No party hereto shall be obliged to complete this Agreement or perform any obligations hereunder unless the other party complies fully with the requirements of Clauses 5.2 to 5.3. Notwithstanding the foregoing, the parties acknowledge that stamping of the contract notes referred to in Clause 5.2.3 in respect of one party may, at the sole discretion of the other party, be waived at Completion and designated as a post-Completion obligation.
5.5 In the event that the Completion cannot take place due to the extent it is able to do so through exercise of its voting rights, procure that a Board meeting is held at which the following business shall be transacted:
(a) the appointment of directors nominated by the Purchaser on the Board shall be approved; and
(b) an extra-ordinary general meeting default of the shareholders of defaulting party, such defaulting party shall bear all the Company to approve professional fees, expenses and/or costs in connection with the matters set out in Clause 5.3(iii)(a) and the amendment of the Articles of Association shall be convened.
5.4. This Agreement may be terminated on or prior to the Completion Date as follows:
(i) By the mutual written consent of the Purchaser and the Seller.
(ii) By the Seller, upon written notice to the Purchaser, if the conditions set out in Clauses 3.1 and 3.3 have not been satisfied (or satisfied subject only to Completion where applicable) or waived (where applicable) on or before 270 (two hundred seventy) days from the Execution Date or such later date as may be mutually agreed between the Parties in writing (“Long Stop Date”); provided that the Seller shall not be entitled to terminate this Agreement pursuant to this Clause 5.4(ii) if Seller’s breach of this Agreement has prevented or materially delayed the consummation of the Transactions (which term for the purposes of this Clause 5.4(ii) shall not include the Financing);
(iii) By the Purchaser, upon written notice to the Seller, if the conditions set out in Clauses 3.2 and 3.3 have not been satisfied (or satisfied subject only to Completion where applicable) or waived (where applicable) on or before the Long Stop Date; provided that the Purchaser shall not be entitled to terminate this Agreement pursuant to this Clause 5.4(iii) if Purchaser’s breach of this Agreement has prevented or materially delayed the consummation of the Transactions.
(iv) By the Seller (if the Seller is not in material breach of the Seller Warranties, covenants or agreements transactions contemplated under this Agreement so as to cause any of the conditions set forth in Clause 3.2 and/or 3.3(i) not to be satisfied), upon written notice to the Purchaser, if there has been a material inaccuracy of any statement or warranty, or any unremedied material breach of a covenant or other agreement, of the Purchaser contained in this Agreement, which violation, breach or inaccuracy would cause any of the conditions set forth in Clause 3.1 and/or 3.3 not to be satisfied as of the Completion Date, and such violation, breach or inaccuracy has not been waived incurred by the Seller or cured by the Purchaser non-defaulting party and shall settle such fees, expenses and/or costs within 20 (twenty) 10 Business Days after receipt by the Purchaser of written notice thereof from the Seller or is not reasonably capable date of being cured prior to the Long Stop Date.
(v) By the Purchaser (if the Purchaser is not in material breach of the Purchaser Warranties, covenants or agreements under this Agreement so as to cause any of the conditions set forth in Clause 3.1 and/or 3.3 not to be satisfied), upon written notice to the Seller, if there has been a material inaccuracy of any statement or warranty, or any unremedied material breach of a covenant or other agreement, of the Seller contained in this Agreement, which violation, breach or inaccuracy would cause any of the conditions set forth in Clauses 3.2 and/or 3.3(i) not to be satisfied as of the Completion Date, and such violation, breach or inaccuracy has not been waived by the Purchaser or cured by the Seller within 20 (twenty) Business Days after receipt by the Seller of written notice thereof from the Purchaser or is not reasonably capable of being cured prior to the Long Stop Date.
(vi) By the Seller or the Purchaser, upon written notice to the other, if a court of competent jurisdiction or any other Governmental Authority shall have issued a final, non-appealable order preventing or otherwise prohibiting the consummation of the Transactions.
5.5. If this Agreement is terminated prior to Completion in accordance with Clause 5.4 above,
(i) this Agreement shall become void and of no further force and effect; provided, however, that the provisions of this Clause 5.5 and Clauses 1 (Definitions and Interpretation), 11 (Announcements and Confidentiality), 12 (Notices), 13 (Governing Law, Disputes and Jurisdiction), 14.1 (Entire Agreement), 14.6 (Variation), 14.7 (No Assignment), 14.8 (Waiver), 14.9 (Severability), 14.10 (Supersession) and 14.11 (Expenses) shall survive the termination of this Agreement indefinitely and that nothing herein shall relieve any Party from any liability for fraud or any breach of the provisions of this Agreement prior to such termination; and
(ii) if applicable, the Observer shall no longer be entitled to attend the meetings of the Board (or any committee thereof) and the nominees of the Purchaser appointed on the Board in accordance with Clause 6.2 shall resign with immediate effectAgreement.
Appears in 1 contract
Sources: Sale and Purchase Agreement (China Natural Resources Inc)
Completion. 5.1. 5.1 Subject to the satisfaction of the conditions precedents set out in Clauses 3.1, 3.2 and 3.3Clause 4.1, Completion shall take place on the Completion DateDate between 9:30 a.m. and 3:00 p.m. at ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇ or at such other time as may be agreed by the Parties (time in either case being of the essence).
5.25.2 Notwithstanding anything herein provided, if the date fixed for Completion shall fall on a day on which a tropical cyclone warning no. The obligations 8 or above, a “black” rainstorm warning or “extreme conditions” announced by the Government of each Hong Kong is in force in Hong Kong at any time between 9:00 a.m. to 12:00 noon time, such date for Completion (including the date for payment) shall automatically be postponed to the next Business Day.
5.3 On Completion, the Vendor shall deliver or procure the delivery to the Purchaser of the Parties under Clause 5.3 below are interdependent following:
5.3.1 the Vendor shall procure that its SPAC Exchange Participant inputs irrevocable delivery versus payment instructions in CCASS to deliver the Sale Shares and the Sale Warrants on or before 10 a.m. on the Completion Date in accordance with this Agreement and the General Rules and the Operational Procedures of each other. The Completion shall not occur unless all CCASS to the CCASS securities account(s) of the obligations specified in Clause 5.3, have been simultaneously complied with and are fully effective.
5.3. On SPAC Exchange Participant of the Purchaser or its nominee as provided to the Vendor by the Purchaser before the Completion Date:Date (the “Purchaser CCASS Securities Account(s)”);
5.3.2 copy, certified as true and complete by a director of the Vendor, of resolutions of the Vendor’s board of directors approving (i) Subject to deductions pursuant to Clause 4.4, this Agreement and its execution and performance by the Purchaser shall remit the Purchase Consideration (in immediately available funds) to the Seller’s Bank Account.
Vendor and (ii) The Seller shall (a) provide to its Depository Participant the sale of the Sale Shares and Sale Warrants as provided for in this Agreement and the transactions hereunder contemplated; and
5.3.3 the instrument of transfer and sold notes in respect of the Sale Shares, duly executed DP Instructions by the Vendor in favour of the prescribed form for Purchaser or its nominee and evidence to the Purchaser’s satisfaction that such documents have been executed and instructions provided by the Vendor as may be required to effect the transfer of the Sale Shares to the Demat Account of the Purchaser (details of which shall be provided to the Seller in writing as soon as practicable after the Execution DateCCASS Securities Account(s); (b) procure its Depository Participant and such other documents as may be required to duly acknowledge such DP Instructions; (c) deliver give a copy good and effective transfer of such acknowledgement title to the Purchaser; and (d) use best endeavours to procure credit of the Sale Shares to the Demat Account of the Purchaser.
(iii) The Seller shall, to the extent it is able to do so through exercise of its voting rights, procure that a Board meeting is held at which the following business shall be transacted:
(a) the appointment of directors nominated by the Purchaser on the Board shall be approved; and
(b) an extra-ordinary general meeting of the shareholders of the Company to approve the matters set out in Clause 5.3(iii)(a) and the amendment of the Articles of Association shall be convened.
5.4. This Agreement may be terminated on or prior Sale Warrants to the Completion Date as follows:
(i) By the mutual written consent of the Purchaser and the Seller.
(ii) By the Seller, upon written notice to the Purchaser, if the conditions set out in Clauses 3.1 and 3.3 have not been satisfied (or satisfied subject only to Completion where applicable) or waived (where applicable) on or before 270 (two hundred seventy) days from the Execution Date or such later date as may be mutually agreed between the Parties in writing (“Long Stop Date”); provided that the Seller shall not be entitled to terminate this Agreement pursuant to this Clause 5.4(ii) if Seller’s breach of this Agreement has prevented or materially delayed the consummation of the Transactions (which term for the purposes of this Clause 5.4(ii) shall not include the Financing);
(iii) By the Purchaser, upon written notice to the Seller, if the conditions set out in Clauses 3.2 and 3.3 have not been satisfied (or satisfied subject only to Completion where applicable) or waived (where applicable) on or before the Long Stop Date; provided that the Purchaser shall not be entitled to terminate this Agreement pursuant to this Clause 5.4(iii) if Purchaser’s breach of this Agreement has prevented or materially delayed the consummation of the Transactions.
(iv) By the Seller (if the Seller is not in material breach of the Seller Warranties, covenants or agreements under this Agreement so as to cause any of the conditions set forth in Clause 3.2 and/or 3.3(i) not to be satisfied), upon written notice to the Purchaser, if there has been a material inaccuracy of any statement or warranty, or any unremedied material breach of a covenant or other agreement, of the Purchaser contained in this Agreement, which violation, breach or inaccuracy would cause any of the conditions set forth in Clause 3.1 and/or 3.3 not to be satisfied as of the Completion Date, and such violation, breach or inaccuracy has not been waived by the Seller or cured by the Purchaser within 20 (twenty) Business Days after receipt by the Purchaser of written notice thereof from the Seller or is not reasonably capable of being cured prior to the Long Stop Date.
(v) By the Purchaser (if the Purchaser is not in material breach of the Purchaser Warranties, covenants or agreements under this Agreement so as to cause any of the conditions set forth in Clause 3.1 and/or 3.3 not to be satisfied), upon written notice to the Seller, if there has been a material inaccuracy of any statement or warranty, or any unremedied material breach of a covenant or other agreement, of the Seller contained in this Agreement, which violation, breach or inaccuracy would cause any of the conditions set forth in Clauses 3.2 and/or 3.3(i) not to be satisfied as of the Completion Date, and such violation, breach or inaccuracy has not been waived by the Purchaser or cured by the Seller within 20 (twenty) Business Days after receipt by the Seller of written notice thereof from its nominee and to enable the Purchaser or is not reasonably capable of being cured prior its nominee to become the Long Stop Date.
(vi) By the Seller or the Purchaser, upon written notice to the other, if a court of competent jurisdiction or any other Governmental Authority shall have issued a final, non-appealable order preventing or otherwise prohibiting the consummation of the Transactions.
5.5. If this Agreement is terminated prior to Completion registered and beneficial holder thereof free from all Encumbrances in accordance with Clause 2.
5.4 above,On Completion, the Purchaser shall pay, or cause to pay the Consideration to the Vendor as provided in Clause 3 and shall deliver or procure the delivery to the Vendor of the following:
5.4.1 copy, certified as true and complete by a director of the Purchaser, of resolutions of the Purchaser’s board of directors approving (i) this Agreement shall become void and its execution and performance by the Purchaser and (ii) the purchase of no further force the Sale Shares and effect; provided, however, that the provisions of this Clause 5.5 and Clauses 1 (Definitions and Interpretation), 11 (Announcements and Confidentiality), 12 (Notices), 13 (Governing Law, Disputes and Jurisdiction), 14.1 (Entire Agreement), 14.6 (Variation), 14.7 (No Assignment), 14.8 (Waiver), 14.9 (Severability), 14.10 (Supersession) and 14.11 (Expenses) shall survive the termination of Sale Warrants as provided for in this Agreement indefinitely and that nothing herein shall relieve any Party from any liability for fraud or any breach the transactions hereunder contemplated;
5.4.2 copy, certified as true and complete by a director of Goldstream, of resolutions of Goldstream’s members approving the Purchaser’s purchase of the provisions of Sale Shares and Sale Warrants as provided for in this Agreement prior to such terminationand the transactions hereunder contemplated; and
(ii) if applicable, 5.4.3 evidence satisfactory to the Observer shall no longer be entitled to attend the meetings Vendor showing payment of the Board (or any committee thereof) and the nominees of the Purchaser appointed on the Board in accordance with Clause 6.2 shall resign with immediate effectConsideration.
Appears in 1 contract
Sources: Sale and Purchase Agreement
Completion. 5.1. Subject to the conditions set out in Clauses 3.1, 3.2 and 3.3, 6.1 Completion shall take place at the Company’s offices in N▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇, or such other place as the Parties agree in writing, and shall begin on the 2nd (second) Business Day following the date on which the State Registration of the New Charter is completed in accordance with Clause 6.5, or such other date as the Parties may agree in writing (the “Completion Date”) and may continue for more than one Business Day.
5.2. The obligations 6.2 At the Pre-Completion Participants’ Meeting, the Buyers shall deliver to the Sellers the following documents:
6.2.1 the original of a notarised power of attorney substantially in the form set out in Schedule 8 authorising a Representative of the Sellers (whose identity is to be notified by the Sellers to the Buyers no later than 20 (twenty) Business Days from the date hereof) to sign and execute for the Buyers the New Charter, if so required by Applicable Law and local registration practice, and file the New Charter for the State Registration;
6.2.2 the original of a notarised power of attorney substantially in the form set out in Schedule 8 authorising the Sellers or a Representative of the Sellers (whose identity is to be notified by the Sellers to the Buyers no later than 20 (twenty) Business Days from the date hereof) to vote on behalf of the Buyers as participants in the Company at a meeting of the participants of the Company in favor of Buyers’ withdrawal from the Company, their transfer of the participation interests in the Company back to the Sellers, and to execute and sign a new charter of the Company listing the Sellers as the participants in the Company, and execute all the documents necessary for the foregoing, which power of attorney shall become effective upon the State Registration and may be revoked by the Buyers only upon the Sellers’ receipt of the Purchase Price pursuant to Clause 6.6.2;
6.2.3 the original of a notarised corporate resolution of each of the Parties under Clause 5.3 below are interdependent of each other. The Completion Buyers, substantially in the form set out in Schedule 8, to terminate their participation in and withdraw from the Company, which resolution shall not occur unless all become effective upon the State Registration and may be revoked by the Buyers only upon the Sellers’ receipt of the obligations specified in Clause 5.3, have been simultaneously complied with and are fully effective.
5.3. On the Completion Date:
(i) Subject to deductions Purchase Price pursuant to Clause 4.4, 6.6.2; and
6.2.4 such other documents that the Purchaser shall remit the Purchase Consideration (Sellers may reasonable request in immediately available funds) writing in order to the Seller’s Bank Account.
(ii) The Seller shall (a) provide to its Depository Participant duly executed DP Instructions in the prescribed form for accomplish the transfer of the Sale Shares participation interest sold hereunder to the Demat Account Buyers back to the Sellers (including without limitation the consent of the Purchaser Buyers in proper form to call and hold a meeting of the participants of the Company without advance notice), which documents shall become effective upon the State Registration and may be revoked by the Buyers only upon the Sellers’ receipt of the Purchase Price pursuant to Clause 6.6.2 (details the documents referred to in Clauses 6.2.2, 6.2.3 and 6.2.4 are referred to as the “Unwinding Documents”).
6.3 On the date, which is 2 (two) Business Days after the date on which the last of the Conditions to be satisfied or waived is satisfied or waived, the Sellers shall hold a general meeting of the participants of the Company (the “Pre-Completion Participants’ Meeting”), which the Buyers shall be provided invited to attend and the Seller in writing as soon as practicable after following resolutions shall be adopted:
6.3.1 the Execution Date); (b) procure its Depository Participant to duly acknowledge such DP Instructions; (c) deliver New Charter shall be approved and signed by the Sellers or the Buyers, if required by Applicable Law or local registration practice;
6.3.2 a copy of such acknowledgement to the Purchaser; and (d) use best endeavours to procure credit resolution of the Sale Shares to Company (the Demat Account of the Purchaser.
(iii“Company Resolution”) The Seller shall, to the extent it is able to do so through exercise of its voting rights, procure that a Board meeting is held at which the following business shall be transactedadopted approving the following:
(a) the appointment of directors nominated by the Purchaser on the Board shall be approved; andNew Charter;
(b) an extra-ordinary general meeting of the shareholders of the Company to approve the matters set out in Clause 5.3(iii)(a) and the amendment of the Articles of Association shall be convened.
5.4. This Agreement may be terminated on or prior to the Completion Date as follows:
(i) By the mutual written consent of the Purchaser and the Seller.
(ii) By the Seller, upon written notice to the Purchaser, if the conditions set out in Clauses 3.1 and 3.3 have not been satisfied (or satisfied subject only to Completion where applicable) or waived (where applicable) on or before 270 (two hundred seventy) days appointment with effect from the Execution Date or such later date as may be mutually agreed between the Parties in writing (“Long Stop Date”); provided that the Seller shall not be entitled to terminate this Agreement pursuant to this Clause 5.4(ii) if Seller’s breach of this Agreement has prevented or materially delayed the consummation of the Transactions (which term for the purposes of this Clause 5.4(ii) shall not include the Financing);
(iii) By the Purchaser, upon written notice to the Seller, if the conditions set out in Clauses 3.2 and 3.3 have not been satisfied (or satisfied subject only to Completion where applicable) or waived (where applicable) on or before the Long Stop Date; provided that the Purchaser shall not be entitled to terminate this Agreement pursuant to this Clause 5.4(iii) if Purchaser’s breach of this Agreement has prevented or materially delayed the consummation of the Transactions.
(iv) By the Seller (if the Seller is not in material breach of the Seller Warranties, covenants or agreements under this Agreement so as to cause any of the conditions set forth in Clause 3.2 and/or 3.3(i) not to be satisfied), upon written notice to the Purchaser, if there has been a material inaccuracy of any statement or warranty, or any unremedied material breach of a covenant or other agreement, of the Purchaser contained in this Agreement, which violation, breach or inaccuracy would cause any of the conditions set forth in Clause 3.1 and/or 3.3 not to be satisfied as of the Completion Date, and contingent upon payment by the Buyers of the amounts envisaged in Clause 6.6.2, of such violationpersons as the Buyers nominate as directors, breach members of the audit commission and auditors of the Company; and
(c) the resignations with effect from the Completion Date, and contingent upon payment by the Buyers of the amounts envisaged in Clause 6.6.2, of the directors referred to in sub-Clause (b) of this clause 6.
6.4 During the course of the Pre-Completion Participants’ Meeting and within 10 (ten) Business Days after the Pre-Completion Participants’ Meeting, the Sellers and the Buyers shall sign, execute and deliver to each other all documents necessary for the State Registration of the New Charter such that the Buyers shall become the legal owners of the Participation Interests, which in the aggregate represent 70% (seventy per cent.) of the participation interests in the charter capital of the Company, including the Sellers’ signing and notarising the New Charter as may be required by Applicable Law.
6.5 Within a reasonable time but in any event not later than 10 (ten) Business Days after the Pre-Completion Participants’ Meeting and receipt by the Sellers from the Buyers of the documents listed in Clause 6.2 and such other documents that may be necessary under the Applicable Law, whatever occurs later, the Sellers shall procure that the Company shall file for the registration of the New Charter with the competent Governmental Entity in accordance with the Applicable Law (the “State Registration”). All costs relating to the State Registration shall be borne by the Company. Upon the completion of the State Registration of the New Charter, the Sellers shall promptly notify the Buyers of the completion of the State Registration of the New Charter. The Parties agree that the ownership of the Participation Interests sold and transferred hereunder by the Sellers to the Buyers shall be deemed to vest in the Buyers upon the State Registration.
6.6 At Completion the following actions shall occur in the following succession:
6.6.1 the Seller shall make available for the Buyers’ review the original of the New Charter and the documents listed below in sub-Clauses (c), (d), (e) and (f) of Clause 6.6.3,
6.6.2 the Buyers upon having reviewed the New Charter and the documents listed below in sub-Clauses (c), (d), (e) and (f) of this Clause 6.6.2 shall immediately initiate the payment of (i) an amount corresponding to the Purchase Price less the sum of the Retention Amount, to the Sellers’ Accounts in the proportions set out against each Sellers’ name in column 3 of Schedule 2; (ii) the Advisory Fees Portion to the Advisors’ Accounts in the proportions set out in the Advisory Fee Notice; and (iii) the Retention Amount to the Retention Account, and
6.6.3 immediately following receipt by the Sellers of the Purchase Price, the Sellers shall deliver to the Buyers:
(a) the original of the New Charter,
(b) the originals of the Unwinding Documents,
(c) the original of a notarised waiver by the Sellers of any pre-emption or inaccuracy other rights which it has under the Constituent Documents of the Company or otherwise, and any other documents or consents necessary to enable the Buyers or its nominee(s) to become the legal holder of the Participation Interests,
(d) where applicable, the original of a written notarised consent of the spouse of each Seller for the sale of his Participation Interests and for his waiving his pre-emption rights and consenting to the sales by Other Participants of their respective participatory interest in the charter capital of the Company as required by Ukrainian law,
(e) the originals of the resignation letters signed by each director of the Company acknowledging that each has no claim against the Company in respect of compensation for loss of office redundancy or unfair dismissal, and
(f) the original of a material adverse effect certificate substantially in the form set out in Schedule 9 duly executed by the Sellers.
6.7 Notwithstanding anything to the contrary in this Agreement and without prejudice to the Sellers’ any other rights and remedies hereunder, if the payment envisaged in Clause 6.6.2 does not occur at the Completion as provided in Clause 6.6, the Company, or the Sellers pursuant to the Unwinding Documents, may call and hold a meeting of the participants of the Company without advance notice to the Buyers (to which the Buyers hereby consent) and the Sellers may pursuant to the Unwinding Documents make such decisions at such meeting and amend the New Charter such that the Buyers shall be removed from the New Charter as the participant in the Company, for which amendment and removal the Buyers hereby give the Seller the full power and authority. The Buyers hereby undertake not to call or hold any meetings of the participants of the Company for as long as the Unwinding Documents remain in the possession of the Sellers and have not been waived properly revoked by the Seller Buyers. The Buyers may not cancel, revoke, modify or cured by withdraw the Purchaser within Unwinding Documents at any time while the Unwinding Documents remain in the Sellers’ possession, except as expressly allowed herein (and no Unwinding Document shall be deemed to have been cancelled, revoked, modified or withdrawn for as long as it remains in the Sellers’ possession, unless the Sellers have been notified about its proper cancellation, revocation, modification or withdrawal in instances envisaged in Clause 6.2 above).
6.8 If the Sellers do not comply with the provisions of Clause 6.3, 6.4, 6.5, 6.6.1 or 6.6.1, the Buyers shall not be obliged to complete this Agreement and may:
6.8.1 defer Completion to a date not more than 20 (twenty) Business Days after receipt by the Purchaser of written notice thereof from the Seller that date, or is not reasonably capable of being cured prior to the Long Stop Date, whichever is the earlier (with the provisions of this Clause 6.8 applying to Completion as so deferred);
6.8.2 proceed to Completion as far as practicable (without limiting its rights and remedies under this Agreement); or
6.8.3 treat this Agreement as terminated for breach of condition (without limiting its rights and remedies under this Agreement).
(v) By 6.9 If the Purchaser (if Buyers do not comply with the Purchaser is provisions of Clause 6.2, 6.4, or 6.6.2, the Sellers shall not in material breach of the Purchaser Warranties, covenants or agreements under be obliged to complete this Agreement so as and may:
6.9.1 defer Completion to cause any of the conditions set forth in Clause 3.1 and/or 3.3 a date not to be satisfied), upon written notice to the Seller, if there has been a material inaccuracy of any statement or warranty, or any unremedied material breach of a covenant or other agreement, of the Seller contained in this Agreement, which violation, breach or inaccuracy would cause any of the conditions set forth in Clauses 3.2 and/or 3.3(i) not to be satisfied as of the Completion Date, and such violation, breach or inaccuracy has not been waived by the Purchaser or cured by the Seller within more than 20 (twenty) Business Days after receipt by the Seller of written notice thereof from the Purchaser that date, or is not reasonably capable of being cured prior to the Long Stop Date.
, whichever is the earlier (vi) By the Seller or the Purchaser, upon written notice to the other, if a court of competent jurisdiction or any other Governmental Authority shall have issued a final, non-appealable order preventing or otherwise prohibiting the consummation of the Transactions.
5.5. If this Agreement is terminated prior to Completion in accordance with Clause 5.4 above,
(i) this Agreement shall become void and of no further force and effect; provided, however, that the provisions of this Clause 5.5 6.9 applying to Completion as so deferred);
6.9.2 proceed to Completion as far as practicable (without limiting their rights and Clauses 1 (Definitions and Interpretation), 11 (Announcements and Confidentiality), 12 (Notices), 13 (Governing Law, Disputes and Jurisdiction), 14.1 (Entire remedies under this Agreement), 14.6 (Variation), 14.7 (No Assignment), 14.8 (Waiver), 14.9 (Severability), 14.10 (Supersession) and 14.11 (Expenses) shall survive the termination of ; or
6.9.3 treat this Agreement indefinitely and that nothing herein shall relieve any Party from any liability as terminated for fraud or any breach of condition (without limiting its rights and remedies under this Agreement).
6.10 If completion of the provisions Buyers’ acquisition of this Agreement prior to such termination; and
at least an additional 10% (iiten per cent) if applicableparticipation interest in the charter capital of the Company from Other Participants does not occur simultaneously with Completion, the Observer Buyers shall no longer not be obliged to perform their Completion undertakings, but shall be entitled to attend the meetings of the Board treat this Agreement as terminated (or any committee thereof) without limiting their rights and the nominees of the Purchaser appointed on the Board in accordance with Clause 6.2 shall resign with immediate effectremedies under this Agreement).
Appears in 1 contract
Sources: Amendment and Restatement Agreement (Pepsiamericas Inc/Il/)
Completion. 5.1. Subject 7.1 Completion of the transactions contemplated by this Agreement (“Completion”) shall take place at the offices of the Seller’s Solicitors:
7.1.1 on the first (1st) Business Day of the calendar month immediately following the calendar month in which the later to be satisfied of: (i) the Regulatory Condition; or (ii) the Ressorts SPEC Condition, is satisfied or waived and provided that the No MAC Condition has then been satisfied or waived, in each case in accordance with Clause 3; or
7.1.2 at such other time or place as the Seller and Buyer agree in writing.
7.2 Except to the conditions set out extent expressly provided otherwise in Clauses 3.1this Agreement, 3.2 and 3.3notwithstanding the actual occurrence of Completion at any particular time on the Completion Date, Completion shall take place be deemed to occur and be effective as of 12:01 a.m. (London time) on the Completion Date.
5.2. The obligations 7.3 On the terms and subject to the conditions of each this Agreement, at Completion, the Seller shall undertake those actions listed in Part A of Schedule 4 and the Buyer shall undertake those actions listed in Part B of Schedule 4.
7.4 Each of the Parties under Clause 5.3 below are interdependent Seller and the Buyer shall, upon becoming aware that any of each other. The Completion shall its obligations in Schedule 4 cannot occur unless all be satisfied at or prior to Completion, immediately notify the other party in writing that such obligation cannot be satisfied and give full details of the obligations specified in Clause 5.3, have been simultaneously complied with and are fully effectivereason why such obligation cannot be satisfied.
5.3. On 7.5 Each of the Seller and the Buyer shall use its reasonable endeavours to procure that all action is taken with a view to enabling the satisfaction of its respective obligations in Schedule 4 on the date set for Completion Date:
(i) Subject to deductions pursuant to Clause 4.4, the Purchaser shall remit the Purchase Consideration (in immediately available funds) to the Seller’s Bank Account7.1.
(ii) The Seller shall (a) provide to its Depository Participant duly executed DP Instructions in the prescribed form for the transfer of the Sale Shares to the Demat Account of the Purchaser (details of which shall be provided to 7.6 If the Seller in writing as soon as practicable after or the Execution Date); (b) procure Buyer has not complied with its Depository Participant to duly acknowledge such DP Instructions; (c) deliver a copy of such acknowledgement to the Purchaser; obligations under Clause 7.3 and (d) use best endeavours to procure credit of the Sale Shares to the Demat Account of the Purchaser.
(iii) The Seller shall, to the extent it is able to do so through exercise of its voting rights, procure that a Board meeting is held at which the following business shall be transacted:
(a) the appointment of directors nominated by the Purchaser on the Board shall be approved; and
(b) an extra-ordinary general meeting of the shareholders of the Company to approve the matters set out in Clause 5.3(iii)(a) and the amendment of the Articles of Association shall be convened.
5.4. This Agreement may be terminated Schedule 4 on or prior to the date set for Completion Date as follows:
(i) By under Clause 7.1, the mutual written consent of the Purchaser and the Seller.
(ii) By the Seller, upon written notice to the Purchaser, if the conditions set out in Clauses 3.1 and 3.3 have not been satisfied (or satisfied subject only to Completion where applicable) or waived (where applicable) on or before 270 (two hundred seventy) days from the Execution Date or such later date as may be mutually agreed between the Parties in writing (“Long Stop Date”); provided that the Seller other party shall not be entitled obliged to terminate this Agreement pursuant to this Clause 5.4(ii) if Seller’s breach of this Agreement has prevented or materially delayed the consummation of the Transactions (which term for the purposes of this Clause 5.4(ii) shall not include the Financing);
(iii) By the Purchaser, upon written notice to the Seller, if the conditions set out in Clauses 3.2 and 3.3 have not been satisfied (or satisfied subject only proceed to Completion where applicable) or waived and may (where applicable) on or before the Long Stop Date; provided that the Purchaser shall in addition to and without prejudice to all other rights and/or remedies available to it):
7.6.1 defer Completion to a date being not be entitled to terminate this Agreement pursuant to this Clause 5.4(iii) if Purchaser’s breach of this Agreement has prevented or materially delayed the consummation of the Transactions.
(iv) By the Seller (if the Seller is not in material breach of the Seller Warranties, covenants or agreements under this Agreement so as to cause any of the conditions set forth in Clause 3.2 and/or 3.3(i) not to be satisfied), upon written notice to the Purchaser, if there has been a material inaccuracy of any statement or warranty, or any unremedied material breach of a covenant or other agreement, of the Purchaser contained in this Agreement, which violation, breach or inaccuracy would cause any of the conditions set forth in Clause 3.1 and/or 3.3 not to be satisfied as of the Completion Date, and such violation, breach or inaccuracy has not been waived by the Seller or cured by the Purchaser within more than 20 (twenty) Business Days after receipt by the Purchaser of written notice thereof from the Seller or is not reasonably capable of being cured prior to the Long Stop Date.
(v) By the Purchaser (if the Purchaser is not in material breach of the Purchaser Warranties, covenants or agreements under this Agreement so as to cause any of the conditions set forth in Clause 3.1 and/or 3.3 not to be satisfied), upon written notice to the Seller, if there has been a material inaccuracy of any statement or warranty, or any unremedied material breach of a covenant or other agreement, of the Seller contained in this Agreement, which violation, breach or inaccuracy would cause any of the conditions set forth in Clauses 3.2 and/or 3.3(i) not to be satisfied as of the Completion Date, and such violation, breach or inaccuracy has not been waived Date set by the Purchaser or cured by the Seller within 20 Clause 7.1 (twenty) Business Days after receipt by the Seller of written notice thereof from the Purchaser or is not reasonably capable of being cured prior to the Long Stop Date.
(vi) By the Seller or the Purchaser, upon written notice to the other, if a court of competent jurisdiction or any other Governmental Authority shall have issued a final, non-appealable order preventing or otherwise prohibiting the consummation of the Transactions.
5.5. If this Agreement is terminated prior to Completion in accordance with Clause 5.4 above,
(i) this Agreement shall become void and of no further force and effect; provided, however, that the provisions of this Clause 5.5 and Clauses 1 (Definitions and Interpretation), 11 (Announcements and Confidentiality), 12 (Notices), 13 (Governing Law, Disputes and Jurisdiction), 14.1 (Entire Agreement), 14.6 (Variation), 14.7 (No Assignment), 14.8 (Waiver), 14.9 (Severability), 14.10 (Supersession) and 14.11 (Expenses) shall survive the termination of this Agreement indefinitely and that nothing herein shall relieve any Party from any liability for fraud or any breach of which case the provisions of this Agreement shall apply as if the date to which Completion is so deferred is the Completion Date);
7.6.2 waive all or any such requirements and proceed to Completion as far as practicable (without limiting its rights under this Agreement); or
7.6.3 terminate this Agreement by notice in writing to the defaulting party, provided that such termination notice may only be given in circumstances where the defaulting party has materially failed to comply with the requirements of Clause 7.3 or Schedule 4 and has not remedied that failure within five (5) Business Days of receiving notice from the non‑defaulting party requiring it to do so.
7.7 The parties agree that this Agreement may only be terminated or rescinded by the Buyer under this Agreement or at Law following the date hereof and prior to such termination; and
(ii) if applicableCompletion, the Observer shall no longer be entitled to attend the meetings of the Board (or any committee thereof) and the nominees of the Purchaser appointed on the Board in accordance with Clause 6.2 3.7, Clause 7.6.3 or Clause 10.3.
7.8 Without prejudice to Clause 7.7, if this Agreement is terminated in accordance with Clause 7.6.3 or Clause 10.3, all obligations of the parties under this Agreement shall resign with immediate effectend except for those expressly stated to continue to exist, provided that all rights and liabilities of the parties which have accrued before termination shall continue to exist.
Appears in 1 contract
Sources: Share and Asset Purchase Agreement (Barnes Group Inc)
Completion. 5.1. Subject to the conditions set out in Clauses 3.1, 3.2 and 3.3, 6.1 Completion shall take place on the third Business Day following the first Business Day on or by which all the Conditions have been fulfilled or waived (if capable of being waived) at the offices of the Sellers' Solicitors (or at such other time and place as the Sellers and the Purchaser may agree in writing) (the "Completion Date").
5.2. The 6.2 At Completion the Sellers and the Purchaser shall comply with their respective obligations set out in Schedule 7.
6.3 Payment by the Purchaser of the Consideration (less the deduction referred to in Clause 5.7) in accordance with paragraph 3(a) of Schedule 7 shall constitute payment of the consideration for the Shares and shall constitute a valid discharge of the Purchaser's obligations under Clause 2.1.
6.4 If the respective obligations of each of the Parties Sellers and/or the Purchaser under Clause 5.3 below 6.2 and Schedule 7 are interdependent of each other. The not complied with in full on the Completion shall Date, the Purchaser or (as the case may be) the Sellers may (in their sole discretion):
(a) defer Completion to a date not occur unless all of more than 28 days after the obligations date specified in Clause 5.3, have been simultaneously complied with and are fully effective.6.1 in which event the provisions of this Clause 6 shall apply to Completion as so deferred; or
5.3. On the Completion Date:
(i) Subject to deductions pursuant to Clause 4.4, the Purchaser shall remit the Purchase Consideration (in immediately available funds) to the Seller’s Bank Account.
(ii) The Seller shall (a) provide to its Depository Participant duly executed DP Instructions in the prescribed form for the transfer of the Sale Shares to the Demat Account of the Purchaser (details of which shall be provided to the Seller in writing as soon as practicable after the Execution Date); (b) procure proceed to Completion as far as practicable without prejudice to its Depository Participant to duly acknowledge such DP Instructionsor their rights under this Agreement; or
(c) deliver a copy of such acknowledgement provided that the 28 day period referred to in Clause 6.4(a) has elapsed, terminate this Agreement by notice in writing to the Purchaser; and Sellers or (das the case may be) use best endeavours to procure credit of the Sale Shares to the Demat Account of the Purchaser.
(iii) The Seller shall, to the extent it is able to do so through exercise of its voting rights, procure that a Board meeting is held at which the following business shall be transacted:
(a) the appointment of directors nominated by the Purchaser on the Board shall be approved; and
(b) an extra-ordinary general meeting of the shareholders of the Company to approve the matters set out in Clause 5.3(iii)(a) and the amendment of the Articles of Association shall be convened.
5.4. This Agreement may be terminated on or prior to the Completion Date as follows:
(i) By the mutual written consent of the Purchaser and the Seller.
(ii) By the Seller, upon written notice to the Purchaser, if the conditions set out in Clauses 3.1 and 3.3 have not been satisfied (or satisfied subject only to Completion where applicable) or waived (where applicable) on or before 270 (two hundred seventy) days from the Execution Date or such later date as may be mutually agreed between the Parties in writing (“Long Stop Date”); provided that the Seller shall not be entitled to terminate this Agreement pursuant to this Clause 5.4(ii) if Seller’s breach of this Agreement has prevented or materially delayed the consummation of the Transactions (which term for the purposes of this Clause 5.4(ii) shall not include the Financing);
(iii) By the Purchaser, upon written notice to the Seller, if the conditions set out in Clauses 3.2 and 3.3 have not been satisfied (or satisfied subject only to Completion where applicable) or waived (where applicable) on or before the Long Stop Date; provided that the Purchaser shall not be entitled to terminate this Agreement pursuant to this Clause 5.4(iii) if Purchaser’s breach of this Agreement has prevented or materially delayed the consummation of the Transactions.
(iv) By the Seller (if the Seller is not in material breach of the Seller Warranties, covenants or agreements under this Agreement so as to cause any of the conditions set forth in Clause 3.2 and/or 3.3(i) not to be satisfied), upon written notice to the Purchaser, if there has been a material inaccuracy of any statement or warranty, or any unremedied material breach of a covenant or other agreement, of the Purchaser contained in this Agreement, which violation, breach or inaccuracy would cause any of the conditions set forth in Clause 3.1 and/or 3.3 not to be satisfied as of the Completion Date, and such violation, breach or inaccuracy has not been waived by the Seller or cured by the Purchaser within 20 (twenty) Business Days after receipt by the Purchaser of written notice thereof from the Seller or is not reasonably capable of being cured prior to the Long Stop Date.
(v) By the Purchaser (if the Purchaser is not in material breach of the Purchaser Warranties, covenants or agreements under this Agreement so as to cause any of the conditions set forth in Clause 3.1 and/or 3.3 not to be satisfied), upon written notice to the Seller, if there has been a material inaccuracy of any statement or warranty, or any unremedied material breach of a covenant or other agreement, of the Seller contained in this Agreement, which violation, breach or inaccuracy would cause any of the conditions set forth in Clauses 3.2 and/or 3.3(i) not to be satisfied as of the Completion Date, and such violation, breach or inaccuracy has not been waived by the Purchaser or cured by the Seller within 20 (twenty) Business Days after receipt by the Seller of written notice thereof from the Purchaser or is not reasonably capable of being cured prior to the Long Stop Date.
(vi) By the Seller or the Purchaser, upon written notice to the other, if a court of competent jurisdiction or any other Governmental Authority shall have issued a final, non-appealable order preventing or otherwise prohibiting the consummation of the Transactions.
5.5. 6.5 If this Agreement is terminated prior pursuant to Completion in accordance with Clause 5.4 above,
(i) 6.4, this Agreement shall become void and of no further force and effect; provided, however, that the provisions of cease to have effect (save for this Clause 5.5 6.5 and Clauses 1 1, 3.7, 15, 16 and 19 to 27 (Definitions and Interpretation), 11 (Announcements and Confidentiality), 12 (Notices), 13 (Governing Law, Disputes and Jurisdiction), 14.1 (Entire Agreement), 14.6 (Variation), 14.7 (No Assignment), 14.8 (Waiver), 14.9 (Severability), 14.10 (Supersessioninclusive) and 14.11 (Expenses29 which shall continue to have effect) and no party shall survive the termination of have any claim under this Agreement indefinitely against any other party save in respect of rights and that nothing herein shall relieve any Party from any liability for fraud or any breach liabilities of the parties which have accrued under this Agreement before its termination or in relation to those provisions of this Agreement prior referred to such above which continue to have effect following its termination; and.
(ii) if applicable, 6.6 Neither the Observer shall no longer be entitled to attend the meetings Purchaser nor any of the Board (or Sellers shall be obliged to complete the sale and purchase of any committee thereof) and the nominees of the Purchaser appointed on Shares unless the Board sale and purchase of all the Shares is completed at the same time in accordance with Clause 6.2 shall resign with immediate effectthis Agreement.
Appears in 1 contract
Sources: Share Purchase Agreement (Kbr, Inc.)
Completion. 5.1. Subject to the conditions set out in Clauses 3.1, 3.2 and 3.3, 5.1 Completion shall take place on immediately upon exchange of this Agreement at the Completion Date.
5.2. The obligations of each of the Parties under Clause 5.3 below are interdependent of each other. The Completion shall not occur unless all of the obligations specified in Clause 5.3, have been simultaneously complied with and are fully effective.
5.3. On the Completion Date:
(i) Subject to deductions pursuant to Clause 4.4, the Purchaser shall remit the Purchase Consideration (in immediately available funds) to the Seller’s Bank Account.
(ii) The Seller shall (a) provide to its Depository Participant duly executed DP Instructions in the prescribed form for the transfer of the Sale Shares to the Demat Account of the Purchaser (details of which shall be provided to the Seller in writing as soon as practicable after the Execution Date); (b) procure its Depository Participant to duly acknowledge such DP Instructions; (c) deliver a copy of such acknowledgement to the Purchaser; and (d) use best endeavours to procure credit of the Sale Shares to the Demat Account offices of the Purchaser.
’s Solicitors (iiior such other place as the parties may agree) The Seller shall, to the extent it is able to do so through exercise when all of its voting rights, procure that a Board meeting is held at which the following business shall be transacted:
(a) the appointment of directors nominated by the Purchaser on the Board shall be approved; and
(b) an extra-ordinary general meeting of the shareholders of the Company to approve the matters set out in Clause 5.3(iii)(a5.2 shall be effected.
5.2 On or before Completion:
(a) each of the parties shall deliver to each other counterparts of this Agreement and the amendment Disclosure Letter duly executed by them;
(b) MMAD and the Seller shall enter into the IP Assignment;
(c) the relevant parties shall enter into the Deed of Release;
(d) the Seller shall deliver to the Purchaser any other documents to the extent necessary for the transfer of any Business Assets;
(e) the Seller shall deliver to the Purchaser those documents and other items specified in Schedule 5.
(f) subject to each of the Articles Seller, DOD and AG complying with their obligations under the preceding provisions of Association shall be convened.
5.4. This Agreement may be terminated on or prior to this Clause 5.2, the Completion Date as followsPurchaser shall:
(i) By arrange for the mutual written consent sum of the Purchaser and the Seller.
US$1,219,000 (ii) By the Seller, upon written notice to the Purchaser, if the conditions set out in Clauses 3.1 and 3.3 have not been satisfied (or satisfied subject only to Completion where applicable) or waived (where applicable) on or before 270 (one million two hundred seventyand nineteen thousand US dollars) days from the Execution Date or such later date as may to be mutually agreed between the Parties in writing (“Long Stop Date”); provided that the Seller shall not be entitled to terminate this Agreement pursuant to this Clause 5.4(ii) if Seller’s breach of this Agreement has prevented or materially delayed the consummation of the Transactions (which term for the purposes of this Clause 5.4(ii) shall not include the Financing);
(iii) By the Purchaser, upon written notice transferred telegraphically to the Seller, if the conditions set out ’s Bank Account in Clauses 3.2 and 3.3 have not been satisfied (or satisfied subject only to Completion where applicable) or waived (where applicable) on or before the Long Stop Date; provided that the Purchaser shall not be entitled to terminate this Agreement pursuant to this Clause 5.4(iii) if Purchaser’s breach of this Agreement has prevented or materially delayed the consummation of the Transactions.
(iv) By the Seller (if the Seller is not in material breach of the Seller Warranties, covenants or agreements under this Agreement so as to cause any of the conditions set forth in Clause 3.2 and/or 3.3(i) not to be satisfied), upon written notice to the Purchaser, if there has been a material inaccuracy of any statement or warranty, or any unremedied material breach of a covenant or other agreement, of the Purchaser contained in this Agreement, which violation, breach or inaccuracy would cause any of the conditions set forth in Clause 3.1 and/or 3.3 not to be satisfied as of the Completion Date, and such violation, breach or inaccuracy has not been waived by the Seller or cured by the Purchaser within 20 (twenty) Business Days after receipt by the Purchaser of written notice thereof from the Seller or is not reasonably capable of being cured prior to the Long Stop Date.
(v) By the Purchaser (if the Purchaser is not in material breach of the Purchaser Warranties, covenants or agreements under this Agreement so as to cause any of the conditions set forth in Clause 3.1 and/or 3.3 not to be satisfied), upon written notice to the Seller, if there has been a material inaccuracy of any statement or warranty, or any unremedied material breach of a covenant or other agreement, of the Seller contained in this Agreement, which violation, breach or inaccuracy would cause any of the conditions set forth in Clauses 3.2 and/or 3.3(i) not to be satisfied as of the Completion Date, and such violation, breach or inaccuracy has not been waived by the Purchaser or cured by the Seller within 20 (twenty) Business Days after receipt by the Seller of written notice thereof from the Purchaser or is not reasonably capable of being cured prior to the Long Stop Date.
(vi) By the Seller or the Purchaser, upon written notice to the other, if a court of competent jurisdiction or any other Governmental Authority shall have issued a final, non-appealable order preventing or otherwise prohibiting the consummation of the Transactions.
5.5. If this Agreement is terminated prior to Completion in accordance with Clause 5.4 above,
(i) this Agreement shall become void and of no further force and effect; provided, however, that the provisions of this Clause 5.5 and Clauses 1 (Definitions and Interpretation), 11 (Announcements and Confidentiality), 12 (Notices), 13 (Governing Law, Disputes and Jurisdiction), 14.1 (Entire Agreement), 14.6 (Variation), 14.7 (No Assignment), 14.8 (Waiver), 14.9 (Severability), 14.10 (Supersession) and 14.11 (Expenses) shall survive the termination of this Agreement indefinitely and that nothing herein shall relieve any Party from any liability for fraud or any breach of the provisions of this Agreement prior to such terminationimmediately available funds; and
(ii) if applicableprocure the repayment by MMAP of the IT&S Loan and the AG Loan.
5.3 No party shall be obliged to complete this Agreement unless the other party has fulfilled all of its obligations under Clause 5.2. The Purchaser may in its absolute discretion waive any requirement contained in Clause 5.2(d) or 5.2(e).
5.4 If Completion does not proceed on the date of this Agreement because the Seller fails to fully discharge any of its obligations under Clause 5.2, the Observer Purchaser may, by serving written notice on the other party:
(a) proceed to Completion so far as practicable (but without prejudice to any other rights which it or they may have under this Agreement); or
(b) postpone Completion to a date not less than 5 nor more than 20 Business Days after that date (in which case the provisions of this Clause shall no longer be entitled also apply to attend Completion as so deferred).
5.5 If Completion does not occur on or before the meetings date agreed in Clause 5.4 due to the failure of the Board (or Seller to comply with any committee thereof) and the nominees of their obligations under Clause 5.2 then the Purchaser appointed may by serving written notice on the Board party in accordance with Clause 6.2 default, terminate this Agreement.
5.6 As soon as reasonably practicable following Completion, the Seller shall resign with immediate effect.procure that each of DOD and AG shall enter into the New Employment Agreements;
Appears in 1 contract
Completion. 5.1. Subject 5.1 When the Company believes in good faith that it has made all arrangements needed to fulfil the Conditions, it shall issue to the conditions set out in Clauses 3.1, 3.2 and 3.3, Preference Shareholders a notice of readiness to complete signed by a director of the Company certifying such belief. The Completion shall take place on the Completion DateDate at the offices of ▇▇▇ ▇▇ Law Offices, or at such other place and time as the parties shall mutually agree in writing.
5.2 At the Completion, Preference Shareholders shall:
(a) deliver or procure to be delivered to the Company applications for the Subscription Shares at the Subscription Price in the form of Schedule 4;
(b) wire US$ 11,000,000 in full into an account held by the Company;
(c) wire US$5,000,000.00 in full into an account opened in a bank at Hong Kong jointly held by the Company, where Baring and the Company are the joint signatories on such account.
5.3 Save as aforesaid, and save as provided herein, ▇▇▇▇▇▇’s prior written consent is required for any withdrawal from the account as stipulated in the Clause 5.2. The obligations ; however, such consent shall not be unreasonably withheld, especially for any withdrawal for purposes of each completing the restructure steps provided in the Restructure Memo, including the Company’s acquisition of New Noah’s equity interests and subscription of the Parties under Clause 5.3 below are interdependent of each other. The registered capital in the WFOE.
5.4 At the Completion shall not occur unless all and upon the receipt of the obligations specified application referred to in Clause 5.35.2(a), have been simultaneously complied with and are fully effective.the Company shall:
5.3. On (a) deliver to the Completion DatePreference Shareholders:
(i) Subject to deductions pursuant to Clause 4.4, a certified true copy of the Purchaser shall remit board resolutions of the Purchase Consideration Company approving:
(A) this Agreement and the Shareholders’ Agreement and the entry into and performance of each of such documents by the Company including the allotment and issue of the Subscription Shares in immediately available funds) accordance with the terms of this Agreement and the issue and delivery of the share certificates to the Seller’s Bank Account.Preference Shareholders;
(B) the issue and delivery of the Warrants to Baring in accordance with the terms of this Agreement;
(C) the appointment of one (1) person nominated by ▇▇▇▇▇▇ as the director of the Company;
(ii) The Seller shall (a) provide to its Depository Participant duly executed DP Instructions in the prescribed form for the transfer a certified true copy of the Sale Shares to board resolutions of WFOE approving the Demat Account appointment of one (1) person nominated by ▇▇▇▇▇▇ as the director of the Purchaser (details of which shall be provided to the Seller in writing as soon as practicable after the Execution Date); (b) procure its Depository Participant to duly acknowledge such DP Instructions; (c) deliver a copy of such acknowledgement to the Purchaser; and (d) use best endeavours to procure credit of the Sale Shares to the Demat Account of the Purchaser.WFOE;
(iii) The Seller shall, to the extent it is able to do so through exercise of its voting rights, procure that a Board meeting is held at which Shareholders’ Agreement duly signed by all parties thereto (other than the following business shall be transacted:Preference Shareholders);
(aiv) the appointment legal opinions referred to in Clause 2.1(m);
(v) the share certificates issued in the name of directors nominated by the Purchaser Preference Shareholders for the Subscription Shares, duly signed and sealed for and on behalf of the Board shall be approvedCompany;
(vi) the Warrants issued in the name of Baring, ▇▇▇▇ signed and sealed for and on behalf of the Company;
(vii) a certified true copy of the Written Resolutions;
(viii) the certificate of compliance referred to in Clause 2.1(q) as of the Completion Date; and
(ix) a copy of the 2004 annual budget for reference for the Company.
(b) an extra-ordinary general meeting Upon receipt of the shareholders of US$11,000,000.00 as stipulated in the Company to approve Clause 5.2 (b), deposit the matters set out in Clause 5.3(iii)(a) US$ 11,000,000.00 into the following accounts unless otherwise agreed by ▇▇▇▇▇▇ and the amendment of the Articles of Association shall be convened.
5.4. This Agreement may be terminated on or prior to the Completion Date as followsCompany:
(i) By wire US$ 5,000,000.00 in full into the mutual written consent bank account of the Purchaser and WFOE 2 as the Seller.capital contribution to the registered capital of WFOE 2;
(ii) By wire US$ 2,300,000 in full into the Seller, upon written notice to the Purchaser, if the conditions set out in Clauses 3.1 and 3.3 have not been satisfied (or satisfied subject only to Completion where applicable) or waived (where applicable) on or before 270 (two hundred seventy) days from the Execution Date or such later date account of WFOE 2 as may be mutually agreed between the Parties in writing (“Long Stop Date”); provided that the Seller shall not be entitled to terminate this Agreement pursuant to this Clause 5.4(ii) if Seller’s breach of this Agreement has prevented or materially delayed the consummation of the Transactions (which term for the purposes of this Clause 5.4(ii) shall not include the Financing)a shareholder loan;
(iii) By the Purchaser, upon written notice wire US$ 2,500,000 to the Seller, if account of WFOE 2 as a shareholder loan where a joint signature of ▇▇▇▇▇▇ designated person and the conditions set out in Clauses 3.2 and 3.3 have not been satisfied (or satisfied subject only to Completion where applicable) or waived (where applicable) on or before the Long Stop Datelegal representative of WFOE 2 is required for any withdrawal from such account; provided that the Purchaser shall not be entitled to terminate this Agreement pursuant to this Clause 5.4(iii) if Purchaser’s breach of this Agreement has prevented or materially delayed the consummation of the Transactions.and
(iv) By wire US$ 1,200,000 in full into the Seller (if account designated by BVI Existing Shareholders as consideration for the Seller is not in material breach purchase of the Seller Warranties, covenants or agreements under this Agreement so as to cause any of the conditions set forth in Clause 3.2 and/or 3.3(i) not to be satisfied), upon written notice to the Purchaser, if there has been a material inaccuracy of any statement or warranty, or any unremedied material breach of a covenant or other agreement, of the Purchaser contained in this Agreement, which violation, breach or inaccuracy would cause any of the conditions set forth in Clause 3.1 and/or 3.3 not to be satisfied as of the Completion Date, and such violation, breach or inaccuracy has not been waived by the Seller or cured by the Purchaser within 20 (twenty) Business Days after receipt by the Purchaser of written notice thereof from the Seller or is not reasonably capable of being cured prior to the Long Stop DateNew Noah’s equity.
(v) By the Purchaser (if the Purchaser is not in material breach of the Purchaser Warranties, covenants or agreements under this Agreement so as to cause any of the conditions set forth in Clause 3.1 and/or 3.3 not to be satisfied), upon written notice to the Seller, if there has been a material inaccuracy of any statement or warranty, or any unremedied material breach of a covenant or other agreement, of the Seller contained in this Agreement, which violation, breach or inaccuracy would cause any of the conditions set forth in Clauses 3.2 and/or 3.3(i) not to be satisfied as of the Completion Date, and such violation, breach or inaccuracy has not been waived by the Purchaser or cured by the Seller within 20 (twenty) Business Days after receipt by the Seller of written notice thereof from the Purchaser or is not reasonably capable of being cured prior to the Long Stop Date.
(vi) By the Seller or the Purchaser, upon written notice to the other, if a court of competent jurisdiction or any other Governmental Authority shall have issued a final, non-appealable order preventing or otherwise prohibiting the consummation of the Transactions.
5.5. If this Agreement is terminated prior to Completion in accordance with Clause 5.4 above,
(i) this Agreement shall become void and of no further force and effect; provided, however, that the provisions of this Clause 5.5 and Clauses 1 (Definitions and Interpretation), 11 (Announcements and Confidentiality), 12 (Notices), 13 (Governing Law, Disputes and Jurisdiction), 14.1 (Entire Agreement), 14.6 (Variation), 14.7 (No Assignment), 14.8 (Waiver), 14.9 (Severability), 14.10 (Supersession) and 14.11 (Expenses) shall survive the termination of this Agreement indefinitely and that nothing herein shall relieve any Party from any liability for fraud or any breach of the provisions of this Agreement prior to such termination; and
(ii) if applicable, the Observer shall no longer be entitled to attend the meetings of the Board (or any committee thereof) and the nominees of the Purchaser appointed on the Board in accordance with Clause 6.2 shall resign with immediate effect.
Appears in 1 contract
Sources: Share Subscription Agreement (Noah Education Holdings Ltd.)
Completion. 5.1. Subject 6.1 The sales and purchases referred to in clause 2 shall be conditional on:
(a) the conditions issue by the Issuer of the Notes and the Residual Certificates and the drawing by the Issuer under the Class S VFN of the amounts referred to in Condition 18 on the Closing Date;
(b) the Relevant Documents having been executed and delivered by the parties thereto on or before the Closing Date; and
(c) the delivery by the Issuer and each applicable Seller of a solvency certificate in or substantially in the form set out in Clauses 3.1schedule 5, 3.2 and 3.3, signed by an authorised officer of the relevant company. Completion of the purchase of the Original Mortgages shall take place on the Completion DateClosing Date immediately upon satisfaction of conditions (a), (b) and (c) referred to in this clause 6.1 and immediately thereafter the steps listed in clauses 6.2 and 6.3 shall take place, each of which shall be deemed to take place simultaneously and payment shall be made in accordance with clause 6.4.
5.2. The obligations 6.2 On each Purchase Date, the relevant Seller shall deliver or procure that there are delivered to the Issuer:
(a) in the case of the Closing Date only, a duly executed power (in duplicate) in the form of the Power of Attorney;
(b) in the case of the Closing Date only, a certified copy of each of the Parties under Clause 5.3 below are interdependent of each other. The Completion shall not occur unless all of Insurance Contracts;
(c) the obligations specified in Clause 5.3, have been simultaneously complied with and are fully effective.
5.3. On following documents on the Completion relevant Purchase Date:
(i) Subject to deductions pursuant to Clause 4.4, paper copies of the Purchaser shall remit the Purchase Consideration (in immediately available funds) title deeds to the Seller’s Bank Account.Properties in respect of the Mortgages;
(ii) The Seller shall (a) provide to its Depository Participant duly executed DP Instructions in the prescribed form for the transfer electronic copies of the Sale Shares to Mortgages registered at the Demat Account Land Registry of the Purchaser (details of which shall be provided to the Seller in writing as soon as practicable after the Execution Date); (b) procure its Depository Participant to duly acknowledge such DP Instructions; (c) deliver a copy of such acknowledgement to the Purchaser; England and (d) use best endeavours to procure credit of the Sale Shares to the Demat Account of the Purchaser.Wales;
(iii) The Seller shall, its files relating to each of the extent it is able to do so through exercise of its voting rights, procure that a Board meeting is held at which the following business shall be transacted:
(a) the appointment of directors nominated by the Purchaser on the Board shall be approvedMortgages; and
(biv) an extra-ordinary general meeting in the case of the shareholders Mortgages to be acquired by the Issuer from each of PML and Paragon Bank on the Closing Date one copy of the Company Annexure to approve this agreement and in the matters set out in Clause 5.3(iii)(a) and the amendment case of the Articles any Additional Mortgages one copy of Association shall be convened.
5.4. This Agreement may be terminated on or prior to the Completion Date as follows:
(i) By the mutual written consent of the Purchaser and the Seller.
(ii) By the Seller, upon written notice to the Purchaser, if the conditions set out in Clauses 3.1 and 3.3 have not been satisfied (or satisfied subject only to Completion where applicable) or waived (where applicable) on or before 270 (two hundred seventy) days from the Execution Date or such later date as may be mutually agreed between the Parties in writing (“Long Stop Date”); provided that the Seller shall not be entitled to terminate this Agreement each Additional Mortgage Request delivered pursuant to this Clause 5.4(iiagreement, in each case signed by the parties hereto for the purposes of identification. The items referred to in items (a), (b) if Seller’s breach and (c) of this Agreement has prevented or materially delayed clause 6.2 shall be delivered on the consummation relevant Purchase Date at the offices of the Transactions (which term relevant Administrator, or the relevant Administrator shall confirm to the Issuer and the Trustee in an agreed form of letter that as of the relevant Purchase Date such items will be held by the relevant Administrator to the order of the Trustee. The Issuer agrees that compliance with this provision shall constitute good delivery of the relevant documents to the Issuer for the purposes of this Clause 5.4(ii) clause 6.2.
6.3 In the case of the Closing Date only, the Issuer shall not include the Financing);
(iii) By the Purchaserdeliver, upon written notice or procure that there are delivered, to the relevant Administrator powers of attorney duly executed by the Issuer and the Trustee in accordance with clause 10.1 of the Administration Agreement.
6.4 On the relevant Purchase Date, the Issuer shall (subject to each Seller having performed their respective obligations herein) satisfy and discharge the Initial Purchase Consideration payable under clause 4.1.
6.5 Each Seller undertakes that it will use all reasonable efforts to obtain, as soon as practicable, and in any event within six months after the relevant Purchase Date, details of the title numbers applicable to Properties in England or Wales comprising registered land or land which is the subject of an application for first registration in respect of Mortgages which have been sold by it. Six months from the relevant Purchase Date the Seller shall report in writing to the Issuer and the Trustee such title numbers relating to the Mortgages as are then known to it together with such other information relating thereto as the Trustee may reasonably request. If all such title numbers are not then known to the relevant Seller, if the conditions set out in Clauses 3.2 and 3.3 have relevant Seller shall, within such period of time thereafter (not been satisfied (or satisfied subject only being less than two weeks) as the Trustee may specify to Completion where applicable) or waived (where applicable) on or before the Long Stop Date; provided that the Purchaser shall not be entitled to terminate this Agreement pursuant to this Clause 5.4(iii) if Purchaser’s breach of this Agreement has prevented or materially delayed the consummation such Seller, obtain details of the Transactions.
(iv) By missing title numbers and report the Seller (if same in writing to the Seller is not in material breach of the Seller Warranties, covenants or agreements under this Agreement so as to cause Trustee. Where any of the conditions set forth Annexures contain details of Mortgages over registered land in Clause 3.2 and/or 3.3(iEngland or Wales, the relevant Seller will identify (if requested to do so by the Chief Land Registrar) not to be satisfied), upon written notice to the Purchaser, if there has been a material inaccuracy of any statement or warranty, or any unremedied material breach of a covenant or other agreement, District Registry responsible for the area in which each of the Purchaser contained in this Agreement, which violation, breach or inaccuracy would cause any of the conditions set forth in Clause 3.1 and/or 3.3 not to be satisfied as of the Completion Date, and such violation, breach or inaccuracy has not been waived by the Seller or cured by the Purchaser within 20 (twenty) Business Days after receipt by the Purchaser of written notice thereof from the Seller or Properties is not reasonably capable of being cured prior to the Long Stop Datesituated.
(v) By the Purchaser (if the Purchaser is not in material breach of the Purchaser Warranties, covenants or agreements under this Agreement so as to cause any of the conditions set forth in Clause 3.1 and/or 3.3 not to be satisfied), upon written notice to the Seller, if there has been a material inaccuracy of any statement or warranty, or any unremedied material breach of a covenant or other agreement, of the Seller contained in this Agreement, which violation, breach or inaccuracy would cause any of the conditions set forth in Clauses 3.2 and/or 3.3(i) not to be satisfied as of the Completion Date, and such violation, breach or inaccuracy has not been waived by the Purchaser or cured by the Seller within 20 (twenty) Business Days after receipt by the Seller of written notice thereof from the Purchaser or is not reasonably capable of being cured prior to the Long Stop Date.
(vi) By the Seller or the Purchaser, upon written notice to the other, if a court of competent jurisdiction or any other Governmental Authority shall have issued a final, non-appealable order preventing or otherwise prohibiting the consummation of the Transactions.
5.5. If this Agreement is terminated prior to Completion in accordance with Clause 5.4 above,
(i) this Agreement shall become void and of no further force and effect; provided, however, that the provisions of this Clause 5.5 and Clauses 1 (Definitions and Interpretation), 11 (Announcements and Confidentiality), 12 (Notices), 13 (Governing Law, Disputes and Jurisdiction), 14.1 (Entire Agreement), 14.6 (Variation), 14.7 (No Assignment), 14.8 (Waiver), 14.9 (Severability), 14.10 (Supersession) and 14.11 (Expenses) shall survive the termination of this Agreement indefinitely and that nothing herein shall relieve any Party from any liability for fraud or any breach of the provisions of this Agreement prior to such termination; and
(ii) if applicable, the Observer shall no longer be entitled to attend the meetings of the Board (or any committee thereof) and the nominees of the Purchaser appointed on the Board in accordance with Clause 6.2 shall resign with immediate effect.
Appears in 1 contract
Sources: Mortgage Sale Agreement
Completion. 5.1. Subject to the conditions set out in Clauses 3.1, 3.2 and 3.3, 5.1 Completion shall take place on the Completion DateDate at the offices of the Buyer's Solicitors (or at any other place as may be agreed in writing by the parties hereto).
5.2. The obligations of each of the Parties under Clause 5.3 below are interdependent of each other. The Completion shall not occur unless all of the obligations specified in Clause 5.3, have been simultaneously complied with and are fully effective.
5.3. On the Completion Date:
5.2 At (ior prior to) Subject to deductions pursuant to Clause 4.4, the Purchaser shall remit the Purchase Consideration (in immediately available funds) to the Seller’s Bank Account.
(ii) The Seller shall (a) provide to its Depository Participant duly executed DP Instructions in the prescribed form for the transfer of the Sale Shares to the Demat Account of the Purchaser (details of which shall be provided to the Seller in writing as soon as practicable after the Execution Date); (b) procure its Depository Participant to duly acknowledge such DP Instructions; (c) deliver a copy of such acknowledgement to the Purchaser; and (d) use best endeavours to procure credit of the Sale Shares to the Demat Account of the Purchaser.
(iii) The Seller shall, to the extent it is able to do so through exercise of its voting rights, procure that a Board meeting is held at which the following business shall be transactedCompletion:
(a) the appointment of directors nominated by the Purchaser on the Board shall be approved; andSeller shall:
(bi) an extra-ordinary general deliver or cause to be delivered to the Buyer the documents and evidence set out in Part 1 of Schedule 2;
(ii) procure that a board meeting of the shareholders of the Company to approve is held at which the matters set out in Clause 5.3(iii)(a) Part 2 of Schedule 2 are carried out and deliver to the amendment Buyer a certified copy of the Articles of Association shall be convened.
5.4. This Agreement may be terminated on or prior to the Completion Date as follows:
(i) By the mutual written consent of the Purchaser and the Seller.
(ii) By the Seller, upon written notice to the Purchaser, if the conditions set out in Clauses 3.1 and 3.3 have not been satisfied (or satisfied subject only to Completion where applicable) or waived (where applicable) on or before 270 (two hundred seventy) days from the Execution Date or such later date as may be mutually agreed between the Parties in writing (“Long Stop Date”); provided that the Seller shall not be entitled to terminate this Agreement pursuant to this Clause 5.4(ii) if Seller’s breach of this Agreement has prevented or materially delayed the consummation of the Transactions (which term for the purposes of this Clause 5.4(ii) shall not include the Financing)related resolutions;
(iii) By deliver to the Purchaser, upon written notice to Buyer a certified copy of the minutes of a meeting of the sole shareholder of the Seller, if Strax AB, authorising the conditions set out in Clauses 3.2 Transaction and 3.3 have not been satisfied (or satisfied subject only the execution and delivery of any documents to Completion where applicable) or waived (where applicable) on or before be delivered by the Long Stop Date; provided that the Purchaser shall not be entitled to terminate this Agreement pursuant to this Clause 5.4(iii) if Purchaser’s breach of this Agreement has prevented or materially delayed the consummation of the Transactions.Seller at Completion;
(iv) By the Seller (if the Seller is not in material breach of the Seller Warranties, covenants or agreements under this Agreement so as to cause any of the conditions set forth in Clause 3.2 and/or 3.3(i) not to be satisfied), upon written notice deliver to the Purchaser, if there has been Buyer a material inaccuracy of any statement or warranty, or any unremedied material breach of a covenant or other agreement, of the Purchaser contained in this duly executed Amended Distribution Agreement, which violation, breach or inaccuracy would cause any of the conditions set forth in Clause 3.1 and/or 3.3 not to be satisfied as of the Completion Date, and such violation, breach or inaccuracy has not been waived by the Seller or cured by the Purchaser within 20 (twenty) Business Days after receipt by the Purchaser of written notice thereof from the Seller or is not reasonably capable of being cured prior to the Long Stop Date.;
(v) By the Purchaser (if the Purchaser is not in material breach of the Purchaser Warranties, covenants or agreements under this Agreement so as to cause any of the conditions set forth in Clause 3.1 and/or 3.3 not to be satisfied), upon written notice deliver to the Seller, if there has been Buyer a material inaccuracy of any statement or warranty, or any unremedied material breach of a covenant or other agreement, of the Seller contained in this Agreement, which violation, breach or inaccuracy would cause any of the conditions set forth in Clauses 3.2 and/or 3.3(i) not to be satisfied as of the Completion Date, and such violation, breach or inaccuracy has not been waived by the Purchaser or cured by the Seller within 20 (twenty) Business Days after receipt by the Seller of written notice thereof from the Purchaser or is not reasonably capable of being cured prior to the Long Stop Date.duly executed TSA;
(vi) By deliver the Disclosure Letter (including the Disclosure Bundle); and
(vii) deliver to the Buyer a duly executed Landlord Consent.
(b) the Buyer shall (subject to the Seller or the Purchaser, upon written notice to the other, if a court complying with all of competent jurisdiction or any other Governmental Authority shall have issued a final, non-appealable order preventing or otherwise prohibiting the consummation of the Transactions.
5.5. If this Agreement is terminated prior to Completion its obligations in accordance with Clause 5.4 above,clause 5.2(a)):
(i) this Agreement shall become void and of no further force and effect; provided, however, that the provisions of this Clause 5.5 and Clauses 1 (Definitions and Interpretation), 11 (Announcements and Confidentiality), 12 (Notices), 13 (Governing Law, Disputes and Jurisdiction), 14.1 (Entire Agreement), 14.6 (Variation), 14.7 (No Assignment), 14.8 (Waiver), 14.9 (Severability), 14.10 (Supersession) and 14.11 (Expenses) shall survive the termination of this Agreement indefinitely and that nothing herein shall relieve any Party from any liability for fraud or any breach deliver at Completion a counterpart of the provisions instrument of this Agreement prior transfer and the bought note in respect of the Sale Shares duly executed by the Buyer;
(ii) pay the Cash Consideration to such terminationthe Seller in accordance with clause 3.2;
(iii) deliver to the Seller a certified copy of the resolution of the board of directors of the Buyer authorising the Transaction and the execution and delivery of any documents to be delivered by the Buyer at Completion;
(iv) deliver to the Seller a duly executed Amended Distribution Agreement; and
(iiv) if applicable, deliver to the Observer shall no longer be entitled to attend the meetings of the Board (or any committee thereof) and the nominees of the Purchaser appointed on the Board in accordance with Clause 6.2 shall resign with immediate effectSeller a duly executed TSA.
Appears in 1 contract
Sources: Share Purchase Agreement (ZAGG Inc)
Completion. 5.1. Subject to the conditions set out in Clauses 3.1, 3.2 and 3.3, 7.1 Completion shall take place on the date falling five Business Days after the satisfaction of the NSIA Condition, provided that the Non-Regulatory Conditions remain satisfied, or at such other time as the Parties may agree in writing (the “Completion Date”).
5.2. The obligations of each of 7.2 On or before the Completion Date the Parties under Clause 5.3 below are interdependent of each other. The Completion shall not occur unless all of the obligations specified in Clause 5.3, have been simultaneously complied with and are fully effective.
5.3. On the Completion Date:
(i) Subject to deductions pursuant to Clause 4.4, the Purchaser shall remit the Purchase Consideration (in immediately available funds) to the Seller’s Bank Account.
(ii) The Seller shall (a) provide to its Depository Participant duly executed DP Instructions in the prescribed form for the transfer of the Sale Shares to the Demat Account of the Purchaser (details of which shall be provided to the Seller in writing as soon as practicable after the Execution Date); (b) procure its Depository Participant to duly acknowledge such DP Instructions; (c) deliver a copy of such acknowledgement to the Purchaser; and (d) use best endeavours to procure credit of the Sale Shares to the Demat Account of the Purchaser.
(iii) The Seller shall, to the extent it is able to do so through exercise of its voting rights, procure that a Board meeting is held at which the following business events shall be transactedoccur:
(a) the appointment of directors nominated by the Purchaser on the Board shall be approved; and
(b) an extra-ordinary general meeting of the shareholders of the Company to approve the matters set out in Clause 5.3(iii)(a) and the amendment of the Articles of Association shall be convened.
5.4. This Agreement may be terminated on or prior to the Completion Date as followsInvestor shall:
(i) By execute and deliver to the mutual written consent of Company the Purchaser and the Seller.SHA to take effect on Completion;
(ii) By the Seller, upon written notice execute and deliver to the Purchaser, if Company the conditions set out in Clauses 3.1 License and 3.3 have not been satisfied (or satisfied subject only Collaboration Agreement to Completion where applicable) or waived (where applicable) take effect on or before 270 (two hundred seventy) days from the Execution Date or such later date as may be mutually agreed between the Parties in writing (“Long Stop Date”); provided that the Seller shall not be entitled to terminate this Agreement pursuant to this Clause 5.4(ii) if Seller’s breach of this Agreement has prevented or materially delayed the consummation of the Transactions (which term for the purposes of this Clause 5.4(ii) shall not include the Financing)Completion;
(iii) By the Purchaser, upon written notice to the Seller, if the conditions set out in Clauses 3.2 and 3.3 have not been satisfied (or satisfied subject only to Completion where applicable) or waived (where applicable) on or before the Long Stop Date; provided procure that the Purchaser shall not be entitled to terminate this Agreement pursuant to this Clause 5.4(iii) if Purchaser’s breach of this Agreement has prevented or materially delayed the consummation a meeting of the Transactions.Investor’s Board is held at which the Investor shall approve the entry by the Investor into the Transaction Documents; and
(iv) By pay the Seller (if sum set out against the Seller is not Investor’s name in material breach of the Seller Warranties, covenants or agreements under this Agreement so as to cause any of the conditions set forth in Clause 3.2 and/or 3.3(i) not to be satisfied), upon written notice to the Purchaser, if there has been a material inaccuracy of any statement or warranty, or any unremedied material breach of a covenant or other agreement, of the Purchaser contained in this Agreement, which violation, breach or inaccuracy would cause any of the conditions set forth table in Clause 3.1 and/or 3.3 not (being the aggregate subscription price for the New Shares) by electronic funds transfer to be satisfied as the bank account of the Completion Date, Company as set out below and such violation, breach or inaccuracy has not been waived by the Seller or cured by the Purchaser within 20 (twenty) Business Days after receipt by the Purchaser of written notice thereof from the Seller or is not reasonably capable of being cured prior to the Long Stop Date.
(v) By the Purchaser (if the Purchaser is not in material breach of the Purchaser Warranties, covenants or agreements under this Agreement so as to cause any of the conditions set forth in Clause 3.1 and/or 3.3 not to be satisfied), upon written notice to the Seller, if there has been a material inaccuracy of any statement or warranty, or any unremedied material breach of a covenant or other agreement, of the Seller contained in this Agreement, which violation, breach or inaccuracy would cause any of the conditions set forth in Clauses 3.2 and/or 3.3(i) not to be satisfied as of the Completion Date, and such violation, breach or inaccuracy has not been waived by the Purchaser or cured by the Seller within 20 (twenty) Business Days after receipt by the Seller of written notice thereof from the Purchaser or is not reasonably capable of being cured prior to the Long Stop Date.
(vi) By the Seller or the Purchaser, upon written notice to the other, if a court of competent jurisdiction or any other Governmental Authority shall have issued a final, non-appealable order preventing or otherwise prohibiting the consummation of the Transactions.
5.5. If this Agreement is terminated prior to Completion payment made in accordance with this Clause 5.4 above,7.2 shall constitute a good discharge for the Investor of its obligations under this Clause 7.2: Account name : *** Bank : *** Account number : *** IBAN : *** Swift Code : ***
(b) a meeting of the Board shall be held at which the Company shall approve the following:
(i) this Agreement shall become void the appointment of ***….. and of no further force and effect; provided, however, that the provisions of this Clause 5.5 and Clauses 1 (Definitions and Interpretation), 11 (Announcements and Confidentiality), 12 (Notices), 13 (Governing Law, Disputes and Jurisdiction), 14.1 (Entire Agreement), 14.6 (Variation), 14.7 (No Assignment), 14.8 (Waiver), 14.9 (Severability), 14.10 (Supersession) and 14.11 (Expenses) shall survive the termination of this Agreement indefinitely and that nothing herein shall relieve any Party from any liability for fraud or any breach *** as directors of the provisions Company with effect from Completion;
(ii) subject to receipt of this the appropriate subscription amounts:
(A) issue the New Shares credited as fully paid to the Investor and enter the Investor’s name in the register of members in respect thereof;
(B) subject to receipt of the appropriate subscription amounts, execute and deliver to the Investor certificates for the New Shares;
(c) the Company shall:
(i) execute and deliver to the Investor the SHA to take effect on Completion;
(ii) execute and deliver to the Investor the License and Collaboration Agreement prior to such terminationtake effect on Completion;
(iii) deliver to the Investor:
(A) the New Articles, in the Agreed Form, to take effect on Completion together with a duly executed special resolution, signed by K▇▇▇▇ US approving the entry into the New Articles; and
(iiB) if applicablea duly executed shareholder resolution, signed by K▇▇▇▇ US, granting the Observer shall no longer be entitled Company’s directors authority to attend issue the meetings of New Shares; and
(iv) so far as it is within its power to do so, procure that the Board (or any committee thereof) Kopin US executes and delivers to the Investor the SHA and the nominees of License and Collaboration Agreement, both in the Purchaser appointed Agreed Form and to take effect on the Board in accordance with Clause 6.2 shall resign with immediate effectCompletion.
Appears in 1 contract
Sources: Subscription Agreement (Kopin Corp)
Completion. 5.1. Subject to the conditions set out in Clauses 3.1, 3.2 and 3.3, 5.1 Completion shall take place on at the Completion DatePRC office of the Vendor situated at ▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇, Shanghai, China (or at such other place and time as the parties may agree) when all the acts and requirements set out in this Clause 5 shall be complied with.
5.2. The obligations 5.2 On Completion, Vendor shall deliver or procure the delivery to the Purchaser of each all the following:
(a) copies, certified as true and complete by a director/ legal representative of the Parties under Clause 5.3 below are interdependent Company and its relevant subsidiaries, of each other. The Completion shall not occur unless all resolutions of the obligations specified shareholders /board of directors meeting approving the matters
(b) in Clause 5.3, have been simultaneously complied with and are fully effective.
5.3. On respect of the Completion DateCompany:
(i) Subject all constitutional documents, statutory records and minute books (which shall be written up to deductions pursuant to Clause 4.4, the Purchaser shall remit the Purchase Consideration (in immediately available funds) to the Seller’s Bank Account.date as at Completion);
(ii) The Seller shall (a) provide all other papers, correspondence and documents relating to its Depository Participant duly executed DP Instructions the Group which are in the prescribed form for possession of or under the transfer control of any of the Sale Shares Vendor; provided that, if the Purchaser so agrees, delivery of all documents and records as referred to in this Clause 5.2(b) shall be deemed to have been effected where they are situated in premises and shall continue to be in the Demat Account sole occupation of the Purchaser (details relevant member of which the Company following Completion or otherwise in the custody of persons who shall be provided to the Seller in writing as soon as practicable after the Execution Date); (b) procure its Depository Participant to duly acknowledge such DP Instructions; (c) deliver a copy remain officers and/or employees of such acknowledgement member of the Company following Completion;
5.3 If the Vendor shall fail to do anything required to be done by them without prejudice to any other right or remedy available to the Purchaser; and (d) use best endeavours to procure credit of , the Sale Shares to the Demat Account of the Purchaser.
(iii) The Seller shall, to the extent it is able to do so through exercise of its voting rights, procure that a Board meeting is held at which the following business shall be transactedPurchaser may:
(a) defer Completion to a day not later than 14 days after the appointment of directors nominated by the Purchaser on the Board shall be approved; and
date fixed for Completion (b) an extra-ordinary general meeting of the shareholders of the Company to approve the matters set out in Clause 5.3(iii)(a) and the amendment of the Articles of Association shall be convened.
5.4. This Agreement may be terminated on or prior to the Completion Date as follows:
(i) By the mutual written consent of the Purchaser and the Seller.
(ii) By the Seller, upon written notice to the Purchaser, if the conditions set out in Clauses 3.1 and 3.3 have not been satisfied (or satisfied subject only to Completion where applicable) or waived (where applicable) on or before 270 (two hundred seventy) days from the Execution Date or such later date as may be mutually agreed between the Parties in writing (“Long Stop Date”); provided that the Seller shall not be entitled to terminate this Agreement pursuant to this Clause 5.4(ii) if Seller’s breach of this Agreement has prevented or materially delayed the consummation of the Transactions (which term for the purposes of this Clause 5.4(ii) shall not include the Financing);
(iii) By the Purchaser, upon written notice to the Seller, if the conditions set out in Clauses 3.2 and 3.3 have not been satisfied (or satisfied subject only to Completion where applicable) or waived (where applicable) on or before the Long Stop Date; provided that the Purchaser shall not be entitled to terminate this Agreement pursuant to this Clause 5.4(iii) if Purchaser’s breach of this Agreement has prevented or materially delayed the consummation of the Transactions.
(iv) By the Seller (if the Seller is not in material breach of the Seller Warranties, covenants or agreements under this Agreement so as to cause any of the conditions set forth in Clause 3.2 and/or 3.3(i) not to be satisfied), upon written notice to the Purchaser, if there has been a material inaccuracy of any statement or warranty, or any unremedied material breach of a covenant or other agreement, of the Purchaser contained in this Agreement, which violation, breach or inaccuracy would cause any of the conditions set forth in Clause 3.1 and/or 3.3 not to be satisfied as of the Completion Date, and such violation, breach or inaccuracy has not been waived by the Seller or cured by the Purchaser within 20 (twenty) Business Days after receipt by the Purchaser of written notice thereof from the Seller or is not reasonably capable of being cured prior to the Long Stop Date.
(v) By the Purchaser (if the Purchaser is not in material breach of the Purchaser Warranties, covenants or agreements under this Agreement so as to cause any of the conditions set forth in Clause 3.1 and/or 3.3 not to be satisfied), upon written notice to the Seller, if there has been a material inaccuracy of any statement or warranty, or any unremedied material breach of a covenant or other agreement, of the Seller contained in this Agreement, which violation, breach or inaccuracy would cause any of the conditions set forth in Clauses 3.2 and/or 3.3(i) not to be satisfied as of the Completion Date, and such violation, breach or inaccuracy has not been waived by the Purchaser or cured by the Seller within 20 (twenty) Business Days after receipt by the Seller of written notice thereof from the Purchaser or is not reasonably capable of being cured prior to the Long Stop Date.
(vi) By the Seller or the Purchaser, upon written notice to the other, if a court of competent jurisdiction or any other Governmental Authority shall have issued a final, non-appealable order preventing or otherwise prohibiting the consummation of the Transactions.
5.5. If this Agreement is terminated prior to Completion in accordance with Clause 5.4 above,
(i) this Agreement shall become void and of no further force and effect; provided, however, that the provisions of this Clause 5.5 and Clauses 1 paragraph (Definitions and Interpretation), 11 (Announcements and Confidentiality), 12 (Notices), 13 (Governing Law, Disputes and Jurisdiction), 14.1 (Entire Agreement), 14.6 (Variation), 14.7 (No Assignment), 14.8 (Waiver), 14.9 (Severability), 14.10 (Supersession) and 14.11 (Expensesa) shall survive apply to Completion as so deferred); or
(b) proceed to Completion so far as practicable but without prejudice to the termination of Purchaser's rights to the extent that the Vendors shall not have complied with their obligations hereunder; or
(c) rescind this Agreement indefinitely and that nothing herein shall relieve any Party from any without liability for fraud or any breach of the provisions of this Agreement prior to such termination; and
(ii) if applicable, the Observer shall no longer be entitled to attend the meetings of the Board (or any committee thereof) and the nominees of the Purchaser appointed on the Board in accordance with Clause 6.2 shall resign with immediate effectits part.
Appears in 1 contract
Completion. 5.1. Subject to the conditions precedent set out in Clauses 3.1Clause 4.1 being fulfilled (or, 3.2 and 3.3where applicable, waived) in full, Completion shall take place on the Completion DateDate at such place and time as the Parties may otherwise agree.
5.2. The obligations At Completion, the Subscriber shall:
(a) deliver or cause to be delivered to the Issuer:
i. an application for all the Subscription Shares substantially in the form set out in Schedule 1, duly signed by the Subscriber; and
ii. a copy, certified as true and complete by a director of the Subscriber, of the resolutions of the directors of the Subscriber approving this Agreement and the transactions contemplated hereunder (including the Subscription) and approving an authorized signatory to sign this Agreement on its behalf;
(b) pay the Consideration to the Issuer, provided that:
i. the aggregate amount of the principal amount of the Drawdown Amount then outstanding shall be applied towards part payment of the Consideration on a dollar-to-dollar basis;
ii. the Subscriber shall pay to the Issuer by transfer of clear and immediately available funds from the Consideration a sum equal to the costs and expenses (whether incurred before or after all conditions set out in Clause 3A.2 have been satisfied) in connection with or incidental to the transactions contemplated under this Agreement (including the Capital Reorganisation and the Proposed Restructuring) not settled or paid with the Drawdown Amount then outstanding referred to under Clause 5.2(b)(i); and
iii. subject to Clauses 5.2(b)(i) to (ii), the balance of the Consideration shall be paid by the Subscriber by transfer of clear and immediately available funds to the Creditors Scheme as the Creditors Scheme Consideration; Payment of the Consideration by the Subscriber pursuant to this Clause 5.2(b) shall be considered as full and final settlement of the Consideration and discharge of the Subscriber’s obligation to pay the Consideration under this Agreement.
5.3. Against compliance and fulfillment of all acts and requirements set out in Clause 5.2, the Issuer shall at Completion:
(a) allot and issue the Subscription Shares to the Subscriber and shall procure that the Subscriber be registered in the register of members of the Issuer as the registered holder of the Subscription Shares;
(b) subject to the completion of necessary procedures of the branch share registrar of the Issuer in Hong Kong, deliver or cause to be delivered to the Subscriber, definitive share certificate(s) for the Subscription Shares issued in the name of the Subscriber and in accordance with the delivery instructions given therein;
(c) deliver or cause to be delivered to the Subscriber an original confirmation signed by an existing Director confirming that (i) the consolidated net asset value of the Issuer as at the Completion Date is not less than HK$900,000,000; and (ii) there is no material breach of any of the Issuer’s Warranties, such confirmation to be in a form and substance satisfactory to the Subscriber;
(d) deliver or cause to be delivered to the Subscriber, if requested by the Subscriber in writing at least three (3) Business Days before the Completion Date, copies of the resignation letters executed under seal of each of the Parties under Clause 5.3 below are interdependent of each other. The Completion shall not occur unless all existing Directors requested by the Subscriber to resign by way of the obligations specified aforesaid written notice with effect from the Completion Date stating, among other things, that each resigning Director has no claims against the Issuer in Clause 5.3respect of his resignation;
(e) deliver or cause to be delivered to the Subscriber, have been simultaneously complied with and are fully effective.
5.3. On a copy of the register of directors of the Issuer reflecting, if requested by the Subscriber in writing at least three (3) Business Days before the Completion Date, the resignation of each of the existing Directors requested by the Subscriber to resign and the appointment of the Directors proposed by the Subscriber as at the Completion Date; and
(f) deliver or cause to be delivered to the Subscriber, a copy of the resolutions of the Board appointing person(s) nominated by the Subscriber as Director(s) with effect from the Completion Date.
5.4. The transactions described in Clauses 5.2 and 5.3 shall take place at the same time, otherwise, none of the Parties shall be obliged to effect Completion (without prejudice to any other remedies).
5.5. If Completion does not take place on the Completion Date (the “Intended Completion Date”) because the Issuer or the Subscriber fails to comply with any of its obligations under this Clause 5 (whether such failure by such party amounts to a repudiatory breach or not) then the Issuer may (in the case of a default by the Subscriber) or the Subscriber may (in the case of a default by the Issuer) (the “Non-Defaulting Party”) in their respective absolute discretion, by written notice to the Issuer or the Subscriber (as the case may be) (the “Defaulting Party”), and without prejudice to any other rights:
(i) Subject proceed to deductions pursuant to Clause 4.4Completion on that date, the Purchaser shall remit the Purchase Consideration (in immediately available funds) to the Seller’s Bank Account.extent that the Non-Defaulting Party is ready, able and willing to do so, and specify a later date by which the Defaulting Party shall be obliged to complete its relevant outstanding obligations under this Agreement;
(ii) The Seller shall elect to defer Completion to a date not more than five (a5) provide to its Depository Participant duly executed DP Instructions in the prescribed form for the transfer of the Sale Shares to the Demat Account of the Purchaser (details of which shall be provided to the Seller in writing as soon as practicable Business Days after the Execution Intended Completion Date), or to a later date as the Non-Defaulting Party deems appropriate; (b) procure its Depository Participant to duly acknowledge such DP Instructions; (c) deliver a copy of such acknowledgement to the Purchaser; and (d) use best endeavours to procure credit of the Sale Shares to the Demat Account of the Purchaser.or
(iii) The Seller shall, to the extent it is able to do so through exercise of its voting rights, procure that a Board meeting is held at which the following business shall be transacted:
(a) the appointment of directors nominated by the Purchaser on the Board shall be approved; and
(b) an extra-ordinary general meeting of the shareholders of the Company to approve the matters set out in Clause 5.3(iii)(a) and the amendment of the Articles of Association shall be convened.
5.4. This Agreement may be terminated on or prior to the Completion Date as follows:
(i) By the mutual written consent of the Purchaser and the Seller.
(ii) By the Seller, upon written notice to the Purchaser, if the conditions set out in Clauses 3.1 and 3.3 have not been satisfied (or satisfied subject only to Completion where applicable) or waived (where applicable) on or before 270 (two hundred seventy) days from the Execution Date or such later date as may be mutually agreed between the Parties in writing (“Long Stop Date”); provided that the Seller shall not be entitled to terminate this Agreement pursuant to this Clause 5.4(ii) if Seller’s breach of this Agreement has prevented or materially delayed the consummation of the Transactions (which term for the purposes of this Clause 5.4(ii) shall not include the Financing);
(iii) By the Purchaser, upon written notice to the Seller, if the conditions set out in Clauses 3.2 and 3.3 have not been satisfied (or satisfied subject only to Completion where applicable) or waived (where applicable) on or before the Long Stop Date; provided that the Purchaser shall not be entitled to terminate this Agreement pursuant to this Clause 5.4(iii) if Purchaser’s breach of this Agreement has prevented or materially delayed the consummation of the Transactions.
(iv) By the Seller (if the Seller is not in material breach of the Seller Warranties, covenants or agreements under this Agreement so as to cause any of the conditions set forth in Clause 3.2 and/or 3.3(i) not to be satisfied), upon written notice to the Purchaser, if there has been a material inaccuracy of any statement or warranty, or any unremedied material breach of a covenant or other agreement, of the Purchaser contained in this Agreement, which violation, breach or inaccuracy would cause any of the conditions set forth in Clause 3.1 and/or 3.3 not to be satisfied as of the Completion Date, and such violation, breach or inaccuracy has not been waived by the Seller or cured by the Purchaser within 20 (twenty) Business Days after receipt by the Purchaser of written notice thereof from the Seller or is not reasonably capable of being cured prior to the Long Stop Date.
(v) By the Purchaser (if the Purchaser is not in material breach of the Purchaser Warranties, covenants or agreements under this Agreement so as to cause any of the conditions set forth in Clause 3.1 and/or 3.3 not to be satisfied), upon written notice to the Seller, if there has been a material inaccuracy of any statement or warranty, or any unremedied material breach of a covenant or other agreement, of the Seller contained in this Agreement, which violation, breach or inaccuracy would cause any of the conditions set forth in Clauses 3.2 and/or 3.3(i) not to be satisfied as of the Completion Date, and such violation, breach or inaccuracy has not been waived by the Purchaser or cured by the Seller within 20 (twenty) Business Days after receipt by the Seller of written notice thereof from the Purchaser or is not reasonably capable of being cured prior to the Long Stop Date.
(vi) By the Seller or the Purchaser, upon written notice to the other, if a court of competent jurisdiction or any other Governmental Authority shall have issued a final, non-appealable order preventing or otherwise prohibiting the consummation of the Transactions.
5.5. If this Agreement is terminated prior to Completion in accordance with Clause 5.4 above,
(i) this Agreement shall become void and of no further force and effect; provided, however, that the provisions of this Clause 5.5 and Clauses 1 (Definitions and Interpretation), 11 (Announcements and Confidentiality), 12 (Notices), 13 (Governing Law, Disputes and Jurisdiction), 14.1 (Entire Agreement), 14.6 (Variation), 14.7 (No Assignment), 14.8 (Waiver), 14.9 (Severability), 14.10 (Supersession) and 14.11 (Expenses) shall survive the termination of this Agreement indefinitely and that nothing herein shall relieve any Party from any liability for fraud or any breach of the provisions of this Agreement prior to such termination; and
(ii) if applicable, the Observer shall no longer be entitled to attend the meetings of the Board (or any committee thereof) and the nominees of the Purchaser appointed on the Board in accordance with Clause 6.2 shall resign with immediate effect9.
Appears in 1 contract
Sources: Subscription Agreement
Completion. 5.1. Subject to the conditions set out in Clauses 3.1, 3.2 and 3.3, 5.1 Completion shall take place on the Completion Datedate falling ten (10) Business Days after the date on which all the conditions set out in Clause 4.1 are fulfilled (or waived by the Purchaser, as the case may be) at the offices of the Vendor, or at such other time and place as the Parties may agree in writing.
5.2. The obligations of each of the Parties under Clause 5.3 below are interdependent of each other. The Completion 5.2 At Completion, SMIL shall not occur unless all of the obligations specified deliver (only in Clause 5.3, have been simultaneously complied with and are fully effective.
5.3. On the Completion Date:
(i) Subject to deductions pursuant to Clause 4.4, the Purchaser shall remit the Purchase Consideration (in immediately available funds) relation to the Seller’s Bank Account.
items in Clauses 5.2(c) and (iie) The Seller below), and the Vendor shall (a) provide deliver or procure to its Depository Participant duly executed DP Instructions in the prescribed form for the transfer of the Sale Shares be delivered to the Demat Account of the Purchaser (details of which shall be provided in relation to all the Seller items in writing as soon as practicable after the Execution Date); (b) procure its Depository Participant to duly acknowledge such DP Instructions; (c) deliver a copy of such acknowledgement to the Purchaser; and (d) use best endeavours to procure credit of the Sale Shares to the Demat Account of the Purchaser.
(iii) The Seller shall, to the extent it is able to do so through exercise of its voting rights, procure that a Board meeting is held at which the following business shall be transacted:Clause 5.2):
(a) the appointment Sale Properties;
(b) a duly executed deed of directors nominated by assignment in the Purchaser on form attached as Schedule 2 hereto for the Board shall be approvedassignment of the Intellectual Property Rights to the Purchaser; and
(bc) an extra-ordinary general meeting duly executed transfer forms in respect of the shareholders ASTV Shares in favour of the Company to approve Purchaser (or as it may direct) accompanied by the matters set out in Clause 5.3(iii)(arelevant share certificates for the ASTV Shares;
(d) and the amendment certified copies of a resolution of the Articles Vendor’s board of Association shall be convened.
5.4. This Agreement may be terminated on or prior to the Completion Date as follows:
directors authorising (i) By the mutual written consent sale of the Purchaser Sale Properties and the Seller.
ASTV Shares and (ii) By the Seller, upon written notice to the Purchaser, if the conditions set out in Clauses 3.1 execution and 3.3 have not been satisfied (or satisfied subject only to Completion where applicable) or waived (where applicable) on or before 270 (two hundred seventy) days from the Execution Date or such later date as may be mutually agreed between the Parties in writing (“Long Stop Date”); provided that the Seller shall not be entitled to terminate this Agreement pursuant to this Clause 5.4(ii) if Seller’s breach completion of this Agreement has prevented and all other documents and agreements ancillary or materially delayed pursuant thereto or in connection therewith, and the consummation execution thereof under the common seal of the Transactions (which term for the purposes of this Clause 5.4(ii) shall not include the Financing);
(iii) By the Purchaser, upon written notice Vendor and/or evidence satisfactory to the Seller, if the conditions set out in Clauses 3.2 and 3.3 have not been satisfied (or satisfied subject only to Completion where applicable) or waived (where applicable) on or before the Long Stop Date; provided that the Purchaser shall not be entitled to terminate this Agreement pursuant to this Clause 5.4(iii) if Purchaser’s breach of this Agreement has prevented or materially delayed the consummation of the Transactions.
(iv) By the Seller (if the Seller is not in material breach of the Seller Warranties, covenants or agreements under this Agreement so as to cause any of the conditions set forth in Clause 3.2 and/or 3.3(i) not to be satisfied), upon written notice to the Purchaser, if there has been a material inaccuracy of any statement or warranty, or any unremedied material breach of a covenant or other agreement, of the Purchaser contained in this Agreement, which violation, breach or inaccuracy would cause any of the conditions set forth in Clause 3.1 and/or 3.3 not to be satisfied as of the Completion Date, and such violation, breach or inaccuracy has not been waived by the Seller or cured by the Purchaser within 20 (twenty) Business Days after receipt by the Purchaser of written notice thereof from the Seller or is not reasonably capable authority of being cured prior to the Long Stop Date.
(v) By the Purchaser (if the Purchaser is not in material breach any person signing on behalf of the Purchaser Warranties, covenants or agreements under this Agreement so as to cause any of the conditions set forth in Clause 3.1 and/or 3.3 not to be satisfied), upon written notice to the Seller, if there has been a material inaccuracy of any statement or warranty, or any unremedied material breach of a covenant or other agreement, of the Seller contained in this Agreement, which violation, breach or inaccuracy would cause any of the conditions set forth in Clauses 3.2 and/or 3.3(i) not to be satisfied as of the Completion Date, and such violation, breach or inaccuracy has not been waived by the Purchaser or cured by the Seller within 20 (twenty) Business Days after receipt by the Seller of written notice thereof from the Purchaser or is not reasonably capable of being cured prior to the Long Stop Date.
(vi) By the Seller or the Purchaser, upon written notice to the other, if a court of competent jurisdiction or any other Governmental Authority shall have issued a final, non-appealable order preventing or otherwise prohibiting the consummation of the Transactions.
5.5. If this Agreement is terminated prior to Completion in accordance with Clause 5.4 above,
(i) this Agreement shall become void and of no further force and effect; provided, however, that the provisions of this Clause 5.5 and Clauses 1 (Definitions and Interpretation), 11 (Announcements and Confidentiality), 12 (Notices), 13 (Governing Law, Disputes and Jurisdiction), 14.1 (Entire Agreement), 14.6 (Variation), 14.7 (No Assignment), 14.8 (Waiver), 14.9 (Severability), 14.10 (Supersession) and 14.11 (Expenses) shall survive the termination of this Agreement indefinitely and that nothing herein shall relieve any Party from any liability for fraud or any breach of the provisions of this Agreement prior to such terminationVendor; and
(e) certified copies of a resolution of SMIL’s board of directors authorising (i) the sale of the ASTV Shares and (ii) if applicablethe execution and completion of this Agreement and all other documents and agreements ancillary or pursuant thereto or in connection therewith, and the execution thereof under the common seal of SMIL and/or evidence satisfactory to the Purchaser of the authority of any person signing on behalf of SMIL.
5.3 At Completion and against compliance by SMIL and the Vendor with Clause 5.2, the Observer Purchaser shall no longer :-
5.3.1 deliver or cause to be entitled delivered to attend the meetings Vendor certified true copies of a resolution of the Board Purchaser’s board of directors authorising and approving (or any committee thereofi) the acquisition of the Sale Properties and the nominees ASTV Shares (ii) the execution and completion of this Agreement and of all other documents and agreements ancillary or pursuant thereto or in connection therewith, and the execution thereof under the common seal of the Purchaser appointed and/or evidence satisfactory to the Vendor of the authority of any person signing on behalf of the Board Purchaser; (iii) the allotment and issue of the Vendor Consideration Shares to the Vendor or its nominees; (iv) the issue of new share certificates in accordance with Clause 6.2 shall resign with immediate effectrespect of the Vendor Consideration Shares in favour of the Vendor or its nominees; (v) the allotment and issue of the ASTV Consideration Shares to the Vendor or its nominees; and (vi) the issue of new share certificates in respect of the ASTV Consideration Shares in favour of the Vendor or its nominees.
5.3.2 allot and issue, the Vendor Consideration Shares to the account of the Vendor provided in writing by the Vendor;
5.3.3 allot and issue, the ASTV Consideration Shares to the account of the Vendor provided in writing by the Vendor;
Appears in 1 contract
Completion. 5.1. Subject to 4.1 The consummation of the conditions set out in Clauses 3.1sale and purchase of the Sale Shares (i.e., 3.2 and 3.3, Completion the “Completion”) shall take place on the 7th (seventh) Business Day ("Completion Date") following the date of issuance of the CP Fulfilment Notice at such place or manner as may be jointly agreed between the Purchaser and the Seller, or such other date as may be mutually agreed between the Seller and the Purchaser. Unless otherwise agreed in writing by the Parties, neither the Purchaser nor the Seller shall be obliged to complete the transactions set out in this Agreement unless all actions contemplated under this Clause 4 are completed simultaneously on the Completion Date in accordance with the terms of this Agreement.
4.2 Immediately following the purchase of the Sale Shares, the shareholding pattern of the Company will be as set out in Part B of SCHEDULE 2.
4.3 On the Completion Date:
(a) the Purchaser shall remit the Purchase Consideration to the Seller's Bank Account, as per the details provided in Part A and Part B of SCHEDULE 1;
(b) simultaneously with the remittance of the Purchase Consideration, the Seller shall deliver the following documents to the Purchaser:
(i) delivery of resignation letter from the Seller as the director of the Company;
(ii) a duly executed form SH-4 for transfer of the Sale Shares along with the original share certificate representing the Sale Shares;
(c) the Company shall convene a meeting of the Board and adopt the necessary resolutions for:
(i) subject to approval of Shareholders, approving and adopting the amended and restated Articles;
(ii) convening an extra-ordinary general meeting of the Shareholders at a shorter notice for undertaking the actions mentioned in clause 4.4 below;
(iii) taking on record the transfer of the Sale Shares from the Seller to the Purchaser and to the Purchaser’s Nominee;
(iv) entering the Purchaser's name in the register of members of the Company as the owner of the Sale Shares;
(v) taking on record the resignation of the Seller and recording the cessation of his directorships in the register of directors in accordance with the resignation letter provided under Clause 4.3(b)(i).
(d) The Company shall file Form DIR-12 with the relevant Registrar of Companies, in relation to the resignation of the Seller.
(e) On the Completion Date, the Seller and the Company shall execute a trademark license agreement on mutually acceptable terms pursuant to which the Company shall provide to the Seller a royalty free and non-transferable/non assignable license to use, on a perpetual basis, the trademark “▇▇. ▇▇▇▇▇’▇” solely in connection with operating the Skin and Hair Clinic Centres. The Seller undertakes that it will not use the trademark “▇▇. ▇▇▇▇▇’▇” for any other purpose whatsoever including for any other additional service/business.
4.4 The Parties shall have terminated the Shareholders’ Agreement effective from the Completion Date.
5.2. 4.5 The Company shall cause an extra-ordinary general meeting of the Shareholders to be held at a shorter notice on the Completion Date, at which the resolution approving the amendments to the Articles, and adopting the amended and restated Articles shall have been passed.
4.6 The obligations of each of the Parties under in this Clause 5.3 below are 4 is interdependent of on each other. The Completion shall not occur unless all of the obligations specified in this Clause 5.3, have been simultaneously 4 are complied with and are fully effective.
5.3. On the Completion Date:
(i) Subject to deductions pursuant to Clause 4.4, the Purchaser shall remit the Purchase Consideration (in immediately available funds) to the Seller’s Bank Account.
(ii) The Seller shall (a) provide to its Depository Participant duly executed DP Instructions in the prescribed form for the transfer of the Sale Shares to the Demat Account of the Purchaser (details of which shall be provided to the Seller in writing as soon as practicable after the Execution Date); (b) procure its Depository Participant to duly acknowledge such DP Instructions; (c) deliver a copy of such acknowledgement to the Purchaser; and (d) use best endeavours to procure credit of the Sale Shares to the Demat Account of the Purchaser.
(iii) The Seller shall, to the extent it is able to do so through exercise of its voting rights, procure that a Board meeting is held at which the following business shall be transacted:
(a) the appointment of directors nominated by the Purchaser on the Board shall be approved; and
(b) an extra-ordinary general meeting of the shareholders of the Company to approve the matters set out in Clause 5.3(iii)(a) and the amendment of the Articles of Association shall be convened.
5.4. This Agreement may be terminated on or prior to the Completion Date as follows:
(i) By the mutual written consent of the Purchaser and the Seller.
(ii) By the Seller, upon written notice to the Purchaser, if the conditions set out in Clauses 3.1 and 3.3 have not been satisfied (or satisfied subject only to Completion where applicable) or waived (where applicable) on or before 270 (two hundred seventy) days from the Execution Date or such later date as may be mutually agreed between the Parties in writing (“Long Stop Date”); provided that the Seller shall not be entitled to terminate this Agreement pursuant to this Clause 5.4(ii) if Seller’s breach of this Agreement has prevented or materially delayed the consummation of the Transactions (which term for the purposes of this Clause 5.4(ii) shall not include the Financing);
(iii) By the Purchaser, upon written notice to the Seller, if the conditions set out in Clauses 3.2 and 3.3 have not been satisfied (or satisfied subject only to Completion where applicable) or waived (where applicable) on or before the Long Stop Date; provided that the Purchaser shall not be entitled to terminate this Agreement pursuant to this Clause 5.4(iii) if Purchaser’s breach of this Agreement has prevented or materially delayed the consummation of the Transactions.
(iv) By the Seller (if the Seller is not in material breach of the Seller Warranties, covenants or agreements under this Agreement so as to cause any of the conditions set forth in Clause 3.2 and/or 3.3(i) not to be satisfied), upon written notice to the Purchaser, if there has been a material inaccuracy of any statement or warranty, or any unremedied material breach of a covenant or other agreement, of the Purchaser contained in this Agreement, which violation, breach or inaccuracy would cause any of the conditions set forth in Clause 3.1 and/or 3.3 not to be satisfied as of the Completion Date, and such violation, breach or inaccuracy has not been waived by the Seller or cured by the Purchaser within 20 (twenty) Business Days after receipt by the Purchaser of written notice thereof from the Seller or is not reasonably capable of being cured prior to the Long Stop Date.
(v) By the Purchaser (if the Purchaser is not in material breach of the Purchaser Warranties, covenants or agreements under this Agreement so as to cause any of the conditions set forth in Clause 3.1 and/or 3.3 not to be satisfied), upon written notice to the Seller, if there has been a material inaccuracy of any statement or warranty, or any unremedied material breach of a covenant or other agreement, of the Seller contained in this Agreement, which violation, breach or inaccuracy would cause any of the conditions set forth in Clauses 3.2 and/or 3.3(i) not to be satisfied as of the Completion Date, and such violation, breach or inaccuracy has not been waived by the Purchaser or cured by the Seller within 20 (twenty) Business Days after receipt by the Seller of written notice thereof from the Purchaser or is not reasonably capable of being cured prior to the Long Stop Date.
(vi) By the Seller or the Purchaser, upon written notice to the other, if a court of competent jurisdiction or any other Governmental Authority shall have issued a final, non-appealable order preventing or otherwise prohibiting the consummation of the Transactions.
5.5. If this Agreement is terminated prior to Completion in accordance with Clause 5.4 above,
(i) this Agreement shall become void and of no further force and effect; provided, however, that the provisions of this Clause 5.5 and Clauses 1 (Definitions and Interpretation), 11 (Announcements and Confidentiality), 12 (Notices), 13 (Governing Law, Disputes and Jurisdiction), 14.1 (Entire Agreement), 14.6 (Variation), 14.7 (No Assignment), 14.8 (Waiver), 14.9 (Severability), 14.10 (Supersession) and 14.11 (Expenses) shall survive the termination of this Agreement indefinitely and that nothing herein shall relieve any Party from any liability for fraud or any breach of the provisions of this Agreement prior to such termination; and
(ii) if applicable, the Observer shall no longer be entitled to attend the meetings of the Board (or any committee thereof) and the nominees of the Purchaser appointed on the Board in accordance with Clause 6.2 shall resign with immediate effect.
Appears in 1 contract
Sources: Share Purchase Agreement
Completion. 5.1. Subject to the conditions set out in Clauses 3.1, 3.2 and 3.3, 4.1 Completion shall take place on at the Completion Dateoffices of the Company's Solicitors immediately after the execution of this Agreement.
5.2. The obligations of each of 4.2 On or prior to Completion:
4.2.1 the Parties under Clause 5.3 below are interdependent of each other. The Completion Vendors shall not occur unless all of in exchange for the obligations specified in Clause 5.3, have been simultaneously complied with and are fully effective.
5.3. On Consideration Shares deliver to the Completion DatePurchaser:
(i) Subject to deductions pursuant to Clause 4.4, duly completed and signed transfers of the Shares in favour of the Purchaser shall remit (or as it may direct) together with the Purchase Consideration (in immediately available funds) to the Seller’s Bank Account.relative share certificates;
(ii) The Seller shall the resignations of the directors and the secretary from their respective offices in the Company with a written acknowledgement confirming that they have no claim against the Company on any grounds whatsoever;
(aiii) provide the common seal and certificate of incorporation of the Company;
(iv) the statutory books, books of account and documents of record of the Company;
(v) the appropriate forms to amend and the mandates given by the Company to its Depository Participant bankers; and
(vi) the Registration Rights Agreement(s) duly executed DP Instructions in by the prescribed form Vendors.
4.3 At or as soon practicable after Completion, the source codes that implement the open XML-based communication protocol for the transfer request/response of the Sale Shares to the Demat Account of the Purchaser (details of which adverts and news set shall be provided delivered to the Seller in writing as soon as practicable after the Execution Date); (b) procure its Depository Participant to duly acknowledge such DP Instructions; (c) deliver a copy of such acknowledgement to the Purchaser; and (d) use best endeavours to procure credit of the Sale Shares to the Demat Account of the Purchaser.
(iii) The Seller shall, 4.4 At or prior to the extent it is able to do so through exercise of its voting rights, procure that Completion a Board meeting is Meeting of the Company shall be held at which the following business resolutions shall be transactedpassed:
(a) the appointment of directors nominated by 4.4.1 such persons as the Purchaser on the Board may nominate shall be approved; and
(b) an extra-ordinary general meeting appointed directors of the shareholders of Company;
4.4.2 the Company transfers referred to approve the matters set out in Clause 5.3(iii)(a) and the amendment of the Articles of Association shall be convened.
5.4. This Agreement may be terminated on or prior to the Completion Date as follows:clause 4.2.1
(i) By shall be approved (subject where necessary to stamping); and
4.4.3 the mutual written consent of resignations referred to in clause 4.2.1(ii) and (iii) shall be submitted and accepted.
4.5 At or prior to Completion, the Purchaser shall:
4.5.1 issue and the Seller.
(ii) By the Seller, upon written notice allot to the Purchaser, if Vendors the conditions Consideration Shares in the proportions set out in Clauses 3.1 and 3.3 have not been satisfied Schedule 1;
4.5.2 deliver to the Vendors the stock certificates relating to the Consideration Shares (or satisfied subject only to Completion where applicable) or waived (where applicable) on or before 270 (two hundred seventy) days from together with such other documents as the Execution Date or such later date as Vendors may be mutually agreed between the Parties in writing (“Long Stop Date”); provided that the Seller shall not be entitled to terminate this Agreement pursuant to this Clause 5.4(ii) if Seller’s breach of this Agreement has prevented or materially delayed the consummation of the Transactions (which term for the purposes of this Clause 5.4(ii) shall not include the Financingreasonably require at their request);
(iii) By 4.5.3 deliver to the Vendors a counterpart of the Registration Rights Agreement duly executed by the Purchaser; and
4.5.4 in consideration for the sum of Pound Sterling1.00, upon written notice to the Seller, if the conditions set out in Clauses 3.2 and 3.3 have not been satisfied (or satisfied subject only to Completion where applicable) or waived (where applicable) on or before the Long Stop Date; provided that the Purchaser shall not be entitled sell, assign, and otherwise transfer with full title guarantee the Fixed Assets to terminate this Agreement pursuant to this Clause 5.4(iii) if Purchaser’s breach Tenara Limited.
4.6 At or within 21 Business Days of this Agreement has prevented or materially delayed Completion the consummation Purchaser shall pay and fully settle each of the TransactionsLiabilities.
(iv) By the Seller (if the Seller is not in material breach of the Seller Warranties, covenants or agreements under this Agreement so as to cause any of the conditions set forth in Clause 3.2 and/or 3.3(i) not to be satisfied), upon written notice to the Purchaser, if there has been a material inaccuracy of any statement or warranty, or any unremedied material breach of a covenant or other agreement, of the Purchaser contained in this Agreement, which violation, breach or inaccuracy would cause any of the conditions set forth in Clause 3.1 and/or 3.3 not to be satisfied as of the Completion Date, and such violation, breach or inaccuracy has not been waived by the Seller or cured by the Purchaser within 20 (twenty) Business Days after receipt by the Purchaser of written notice thereof from the Seller or is not reasonably capable of being cured prior to the Long Stop Date.
(v) By the Purchaser (if the Purchaser is not in material breach of the Purchaser Warranties, covenants or agreements under this Agreement so as to cause any of the conditions set forth in Clause 3.1 and/or 3.3 not to be satisfied), upon written notice to the Seller, if there has been a material inaccuracy of any statement or warranty, or any unremedied material breach of a covenant or other agreement, of the Seller contained in this Agreement, which violation, breach or inaccuracy would cause any of the conditions set forth in Clauses 3.2 and/or 3.3(i) not to be satisfied as of the Completion Date, and such violation, breach or inaccuracy has not been waived by the Purchaser or cured by the Seller within 20 (twenty) Business Days after receipt by the Seller of written notice thereof from the Purchaser or is not reasonably capable of being cured prior to the Long Stop Date.
(vi) By the Seller or the Purchaser, upon written notice to the other, if a court of competent jurisdiction or any other Governmental Authority shall have issued a final, non-appealable order preventing or otherwise prohibiting the consummation of the Transactions.
5.5. If this Agreement is terminated prior to Completion in accordance with Clause 5.4 above,
(i) this Agreement shall become void and of no further force and effect; provided, however, that the provisions of this Clause 5.5 and Clauses 1 (Definitions and Interpretation), 11 (Announcements and Confidentiality), 12 (Notices), 13 (Governing Law, Disputes and Jurisdiction), 14.1 (Entire Agreement), 14.6 (Variation), 14.7 (No Assignment), 14.8 (Waiver), 14.9 (Severability), 14.10 (Supersession) and 14.11 (Expenses) shall survive the termination of this Agreement indefinitely and that nothing herein shall relieve any Party from any liability for fraud or any breach of the provisions of this Agreement prior to such termination; and
(ii) if applicable, the Observer shall no longer be entitled to attend the meetings of the Board (or any committee thereof) and the nominees of the Purchaser appointed on the Board in accordance with Clause 6.2 shall resign with immediate effect.
Appears in 1 contract
Completion. 5.1. Subject to the conditions set out in Clauses 3.1, 3.2 and 3.3, Completion shall take place on the Completion Date.
5.2. The obligations of each of the Parties under Clause 5.3 below are interdependent of each other. The Completion shall not occur unless all of the obligations specified in Clause 5.3, have been simultaneously complied with and are fully effective.
5.3. On the (a) Completion Date:
(i) Subject Completion shall take place at 9:00 a.m., New York City time, on a date to deductions pursuant to Clause 4.4be agreed by the Parties, being not more than 3 Business Days (or such shorter period of time as remains before 11:59 p.m., New York City time, on the Purchaser shall remit End Date) after the Purchase Consideration satisfaction or, in the sole discretion of the applicable Party, waiver (in immediately available fundswhere applicable) of all of the Conditions (“Completion Date”) with the exception of Condition 2(d) (delivery and registration of the Court Order and a copy of the minute required by Section 75 of the Act) (but subject to the Seller’s Bank Accountsatisfaction of such Condition).
(ii) The Seller Completion shall (a) provide to its Depository Participant duly executed DP Instructions in take place at the prescribed form for the transfer offices of the Sale Shares to the Demat Account of the Purchaser (details of which shall be provided to the Seller in writing as soon as practicable after the Execution Date); (b) procure its Depository Participant to duly acknowledge such DP Instructions; (c) deliver a copy of such acknowledgement to the Purchaser; and (d) use best endeavours to procure credit of the Sale Shares to the Demat Account of the Purchaser▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇▇▇.
(iii) The Seller shall, to the extent it is able to do so through exercise of its voting rights, procure that a Board meeting is held at which the following business shall be transacted:
(a) the appointment of directors nominated by the Purchaser on the Board shall be approved; and
(b) an extra-ordinary general meeting of the shareholders of the Company to approve the matters set out in Clause 5.3(iii)(a) and the amendment of the Articles of Association shall be convened.
5.4. This Agreement may be terminated on On or prior to the Completion Date as followsCompletion:
(i) By the mutual written consent ▇▇▇▇▇▇ shall procure that a meeting of the Purchaser ▇▇▇▇▇▇ Board (or a duly authorised committee thereof) is held at which resolutions are passed (conditional on registration of the Court Order with the Registrar of Companies occurring and effective as of the SellerEffective Time) approving:
(A) the allotment and issue to Holdco (and/or its nominees) in accordance with the Scheme of the number of new shares in the capital of ▇▇▇▇▇▇ provided for in the Scheme;
(B) the removal of the directors of ▇▇▇▇▇▇ as Holdco shall determine; and
(C) the appointment of such persons as Holdco may nominate as the directors of ▇▇▇▇▇▇.
(ii) By the Seller, upon written notice to the Purchaser, if the conditions set out in Clauses 3.1 and 3.3 have not been satisfied (or satisfied subject only to Completion where applicable) or waived (where applicable) on or before 270 (two hundred seventy) days from the Execution Date or such later date as may be mutually agreed between the Parties in writing (“Long Stop Date”); provided that the Seller Eaton shall not be entitled to terminate this Agreement pursuant to this Clause 5.4(ii) if Seller’s breach of this Agreement has prevented or materially delayed procure the consummation of the Transactions (which term for the purposes of this Clause 5.4(ii) shall not include the Financing);
(iii) By the Purchaser, upon written notice to the Seller, if the conditions steps set out in Clauses 3.2 and 3.3 have not been satisfied (or satisfied subject only to Completion where applicableparagraphs 1 through 6 set forth on Exhibit 8.1(b)(ii) or waived (where applicable) on or before the Long Stop Date; provided that the Purchaser shall not be entitled to terminate this Agreement pursuant to this Clause 5.4(iii) if Purchaser’s breach of this Agreement has prevented or materially delayed the consummation of the Transactionsin accordance therewith.
(ivc) By the Seller (if the Seller is not in material breach of the Seller Warranties, covenants or agreements under this Agreement so as to cause any of the conditions set forth in Clause 3.2 and/or 3.3(i) not to be satisfied), upon written notice to the Purchaser, if there has been a material inaccuracy of any statement or warranty, or any unremedied material breach of a covenant or other agreement, of the Purchaser contained in this Agreement, which violation, breach or inaccuracy would cause any of the conditions set forth in Clause 3.1 and/or 3.3 not to be satisfied as of the Completion Date, and such violation, breach or inaccuracy has not been waived by the Seller or cured by the Purchaser within 20 (twenty) Business Days after receipt by the Purchaser of written notice thereof from the Seller or is not reasonably capable of being cured prior to the Long Stop Date.
(v) By the Purchaser (if the Purchaser is not in material breach of the Purchaser Warranties, covenants or agreements under this Agreement so as to cause any of the conditions set forth in Clause 3.1 and/or 3.3 not to be satisfied), upon written notice to the Seller, if there has been a material inaccuracy of any statement or warranty, or any unremedied material breach of a covenant or other agreement, of the Seller contained in this Agreement, which violation, breach or inaccuracy would cause any of the conditions set forth in Clauses 3.2 and/or 3.3(i) not to be satisfied as of the Completion Date, and such violation, breach or inaccuracy has not been waived by the Purchaser or cured by the Seller within 20 (twenty) Business Days after receipt by the Seller of written notice thereof from the Purchaser or is not reasonably capable of being cured prior to the Long Stop Date.
(vi) By the Seller or the Purchaser, upon written notice to the other, if a court of competent jurisdiction or any other Governmental Authority shall have issued a final, non-appealable order preventing or otherwise prohibiting the consummation of the Transactions.
5.5. If this Agreement is terminated prior to Completion in accordance with Clause 5.4 above,On Completion:
(i) this Agreement Holdco shall, in respect of each ▇▇▇▇▇▇ Share subject to the Scheme (together with the preferred share purchase rights granted pursuant to the ▇▇▇▇▇▇ Rights Agreement, if any):
(A) pay $39.15 in cash (the “Cash Consideration”) to the applicable ▇▇▇▇▇▇ Shareholder; and
(B) issue 0.77479 (the “Exchange Ratio”) of a Holdco Share (“the “Share Consideration” and, together with the Cash Consideration and any cash in lieu of Fractional Entitlements due a holder, the “Scheme Consideration”) to the applicable ▇▇▇▇▇▇ Shareholder (and/or their nominees), which Share Consideration shall become void be duly authorised, validly issued, fully paid and non-assessable and free of no further force Liens and effectpre-emptive rights; provided, however, that no fractions of Holdco Shares (the provisions of “Fractional Entitlements”) shall be issued by Holdco to the Cooper Shareholders under this Clause 5.5 and Clauses 1 (Definitions and Interpretation8.1(c)(i)(B), 11 (Announcements and Confidentiality)all Fractional Entitlements shall be aggregated and sold in the market by the Exchange Agent with the net proceeds of any such sale distributed pro-rata to the Cooper Shareholders; in each case, 12 (Notices), 13 (Governing Law, Disputes and Jurisdiction), 14.1 (Entire Agreement), 14.6 (Variation), 14.7 (No Assignment), 14.8 (Waiver), 14.9 (Severability), 14.10 (Supersession) and 14.11 (Expenses) shall survive in accordance with the termination of this Agreement indefinitely and that nothing herein shall relieve any Party from any liability for fraud or any breach of the provisions of this Agreement prior to such terminationScheme; and
(ii) if applicable, the Observer Cooper shall no longer be entitled deliver to attend the meetings Holdco:
(A) a certified copy of the Board resolutions referred to in Clause 8.1(b)(i);
(or any committee thereofB) and letters of resignation from the nominees of the Purchaser appointed on the Board directors that are removed from Cooper in accordance with Clause 6.2 8.1(b)(i)(B) (each such letter containing an acknowledgement that such resignation is without any claim or right of action of any nature whatsoever outstanding against Cooper or the Cooper Group or any of their officers or employees for breach of contract, compensation for loss of office, redundancy or unfair dismissal or on any other grounds whatsoever in respect of the removal); and
(C) share certificates in respect of the aggregate number of shares in the capital of Cooper to be issued to Holdco (and/or its nominees) in accordance with the Scheme.
(iii) Cooper shall resign cause an office copy of the Court Order and a copy of the minute required by Section 75 of the Act to be filed with immediate effectthe Companies Registration Office and obtain from the Registrar of Companies a Certificate of Registration in relation to the reduction of share capital involved in the Scheme.
(iv) Eaton and Holdco shall cause the Holdco Memorandum and Articles of Association to be amended and restated in their entirety in such form as the Parties, acting reasonably, mutually agree (including passing appropriate resolutions for this purpose).
Appears in 1 contract
Completion. 5.1. Subject to the conditions set out in Clauses 3.1, 3.2 and 3.3, 5.1 Completion shall take place on the Target Completion Date.
5.2. The obligations of each of Date on or before 4:00 p.m. (Hong Kong Time) (or such date, time or place as agreed in writing by the Parties under Clause 5.3 below are interdependent of each other. The Completion shall not occur unless all of Parties), when the obligations specified in Clause 5.3, have been following business will be simultaneously complied with and are fully effective.
5.3. On the Completion Datetransacted:
(i) Subject to deductions pursuant to Clause 4.45.1.1 At Completion, the Purchaser Vendor shall remit the Purchase Consideration (in immediately available funds) deliver or cause to the Seller’s Bank Account.
(ii) The Seller shall (a) provide to its Depository Participant duly executed DP Instructions in the prescribed form for the transfer of the Sale Shares to the Demat Account of the Purchaser (details of which shall be provided to the Seller in writing as soon as practicable after the Execution Date); (b) procure its Depository Participant to duly acknowledge such DP Instructions; (c) deliver a copy of such acknowledgement delivered to the Purchaser; and (d) use best endeavours to procure credit of the Sale Shares to the Demat Account of the Purchaser.
(iii) The Seller shall, to the extent it is able to do so through exercise of its voting rights, procure that a Board meeting is held at which the following business shall be transacted:
(a) the appointment of directors nominated a completion confirmation letter to be executed by the Purchaser on Vendor, in the Board shall be approved; and
(b) an extra-ordinary general meeting of the shareholders of the Company to approve the matters form set out in Clause 5.3(iii)(a) and the amendment of the Articles of Association shall be convenedSchedule 5.
5.4. This Agreement may 5.1.2 At Completion, the Purchaser shall deliver or cause to be terminated on or prior delivered to the Completion Date as followsVendor:
(ia) By the mutual written consent of the Purchaser and the Seller.
(ii) By the Seller, upon written notice a completion confirmation letter to be executed by the Purchaser, if in the conditions form set out in Clauses 3.1 and 3.3 have not been satisfied (or satisfied subject only to Completion where applicable) or waived (where applicable) on or before 270 (two hundred seventy) days from the Execution Date or such later date as may be mutually agreed between the Parties in writing (“Long Stop Date”); provided that the Seller shall not be entitled to terminate this Agreement pursuant to this Clause 5.4(ii) if Seller’s breach of this Agreement has prevented or materially delayed the consummation Schedule 5.
5.1.3 If any of the Transactions (which term for the purposes provisions of this Clause 5.4(ii5 (Completion) shall are not include fully complied with or on the Financing);
(iii) By Target Completion Date, notwithstanding any other provision in this Agreement, the Purchaser, upon written notice to the Seller, if the conditions set out in Clauses 3.2 Vendor and 3.3 have not been satisfied (or satisfied subject only to Completion where applicable) or waived (where applicable) on or before the Long Stop Date; provided that the Purchaser shall not be entitled obliged to terminate this Agreement pursuant to this Clause 5.4(iii) if Purchaser’s breach of this Agreement has prevented or materially delayed complete the consummation sale and purchase of the Transactions.
(iv) By the Seller (if the Seller is not Sale Shares and may, in material breach of the Seller Warrantiesits absolute discretion, covenants or agreements under this Agreement so as to cause any of the conditions set forth in Clause 3.2 and/or 3.3(i) not to be satisfied), upon by written notice to the Purchaserother Party before or on the Target Completion Date be entitled (in addition to and without prejudice to all other rights or Completion, if there has been a material inaccuracy of any statement or warranty, or any unremedied material breach of a covenant or other agreement, the Purchaser shall deliver to the Vendor an original of the Purchaser contained in this Agreement, which violation, breach or inaccuracy would cause any signed resolutions of the conditions set forth in Clause 3.1 and/or 3.3 remedies available to the such Party including the right to claim damages) to:
(a) without prejudice to such Party’s rights under this Agreement (including the Representation and Warranties), effect Completion so far as practicable having regard to any defaults which may have occurred;
(b) defer Completion to a date not to be satisfied as of more than thirty (30) days after the Target Completion Date, and such violation, breach or inaccuracy has not been waived by in which case the Seller or cured by the Purchaser within 20 (twenty) Business Days after receipt by the Purchaser of written notice thereof from the Seller or is not reasonably capable of being cured prior to the Long Stop Date.
(v) By the Purchaser (if the Purchaser is not in material breach of the Purchaser Warranties, covenants or agreements under this Agreement so as to cause any of the conditions set forth in Clause 3.1 and/or 3.3 not to be satisfied), upon written notice to the Seller, if there has been a material inaccuracy of any statement or warranty, or any unremedied material breach of a covenant or other agreement, of the Seller contained in this Agreement, which violation, breach or inaccuracy would cause any of the conditions set forth in Clauses 3.2 and/or 3.3(i) not to be satisfied as of the Completion Date, and such violation, breach or inaccuracy has not been waived by the Purchaser or cured by the Seller within 20 (twenty) Business Days after receipt by the Seller of written notice thereof from the Purchaser or is not reasonably capable of being cured prior to the Long Stop Date.
(vi) By the Seller or the Purchaser, upon written notice to the other, if a court of competent jurisdiction or any other Governmental Authority shall have issued a final, non-appealable order preventing or otherwise prohibiting the consummation of the Transactions.
5.5. If this Agreement is terminated prior to Completion in accordance with Clause 5.4 above,
(i) this Agreement shall become void and of no further force and effect; provided, however, that the foregoing provisions of this Clause 5.5 and Clauses 1 5.1.3 shall apply to Completion as so deferred; or
(Definitions and Interpretation), 11 (Announcements and Confidentiality), 12 (Notices), 13 (Governing Law, Disputes and Jurisdiction), 14.1 (Entire Agreement), 14.6 (Variation), 14.7 (No Assignment), 14.8 (Waiver), 14.9 (Severability), 14.10 (Supersessionc) and 14.11 (Expenses) shall survive the termination of terminate this Agreement indefinitely (other than the Surviving Provisions) and, save and that nothing herein except an obligation by the Vendor to refund the Cash Consideration, no party shall relieve have any Party from claim of any liability for fraud or nature whatsoever against any breach other party under this agreement (save in respect of any rights and liabilities of the provisions of this Agreement prior parties which have accrued before termination or in relation to such termination; and
(ii) if applicable, the Observer shall no longer be entitled to attend the meetings any of the Board (or any committee thereof) and the nominees of the Purchaser appointed on the Board in accordance with Clause 6.2 shall resign with immediate effectSurviving Provisions).
Appears in 1 contract
Sources: Sale and Purchase Agreement (Troops, Inc. /Cayman Islands/)