Completion. 4.1 Completion shall take place at the offices of the Purchaser's Solicitors immediately following the signing of this Agreement or at such other place or time as the Vendor and the Purchaser may agree. 4.2 At Completion the Vendor shall procure: (a) the delivery to the Purchaser of duly completed and executed transfers of the Shares by the registered holders of the Shares in favour of the Purchaser or its nominees together with valid share certificates representing the Shares and all (if any) other documents required to give good title to the Shares; (b) the delivery to the Purchaser of powers of attorney in the agreed form duly executed by the registered holders of the Shares; (c) the delivery to the Purchaser of the Tax Covenant duly executed by the Vendor; (d) the delivery to the Purchaser of the following, each duly executed and in form and substance satisfactory to the Purchaser:- (i) a deed of release given in relation to the Company Guarantee; (ii) a deed of release by each person holding or being entitled to any Encumbrance over the Shares or any of the assets of the Company; (iii) a deed of waiver by the Vendor waiving any claim it or any of its subsidiaries or Associates may have against the Company; (iv) deeds of waiver by each co-guarantor of the Company in respect of the Company Guarantee; (e) the delivery to the Purchaser of the statutory books (duly written up to date) and the certificate(s) of incorporation of the Company; (f) the delivery to the Purchaser of all current cheque books and deposit books relating to all bank accounts of the Company; (g) the delivery to the Purchaser of all documents of title relating to the Properties; (h) the delivery to the Purchaser of copies of the minutes of the meetings of the boards of directors of the Vendor in the agreed form, authorising (in each case) the entry into of the transaction the subject of this Agreement, approving this Agreement and any other agreements or documents to be executed pursuant to or in connection with it and appointing the relevant signatory to sign this Agreement and such other agreements and documents on their behalf certified by the company secretary of the Vendor together with (in each case) confirmation, in the agreed form, from the company secretary that the authority conferred remains valid at Completion; (i) the passing of effective resolutions of the Directors resolving to register the transfers of the Shares subject only to stamping of the share transfers; (j) (at the cost of the Vendor) the convening and holding of all such meetings, the passing of all such resolutions, the execution and delivery of all such documents and the taking of all other action to the extent reasonably necessary in order to complete the transfer of title to the Shares to the Purchaser free from all Encumbrances and to enable the Purchaser to exercise and receive all rights and benefits attaching to or arising from the Shares; (k) with effect from Completion, the appointment as directors and secretary of the Company of such person or persons as the Purchaser shall have nominated and the resignation of each of the Directors (except ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ and ▇▇▇▇ ▇▇▇▇▇) and the secretary of the Company by delivery of a letter under seal from each such Director and the secretary resigning from his offices and from any employment he may have with the Company with effect from Completion and acknowledging that he has no claim against the Company either actual or contingent in respect of any cause matter or thing (statutory or otherwise); (l) the resignation of the auditors of the Company (without compensation for loss of office or any other claim save for proper professional fees for services rendered in respect of their duties as auditors prior to the completion of the 1997 Audit) with effect from completion of the 1997 Audit and the delivery of a statement by them that there are no circumstances connected with their ceasing to hold office which they consider should be brought to the attention of the members or creditors of the Company; (m) revocation of all existing authorities to the bankers of the Company relating to bank accounts and the grant of authority to such persons as the Purchaser may nominate to operate the same; (n) that all books, records and files of the Company are in its possession or under its control and where any such are not at the Properties that the Purchaser is given details of their whereabouts and any necessary authority to collect them; (o) the delivery to the Purchaser of duly completed and executed transfers of all shares in the capital of Firstpoint Services Limited not registered in the name of the Company, the statutory books and common seal (if any) of Firstpoint Services Limited and certificates for all of the issued shares in Firstpoint Services Limited. 4.3 Immediately following fulfilment of all the matters referred to in Clause 4.2 the Purchaser shall: (a) procure that that part of the Consideration payable in cash on Completion is paid by bankers draft to the Vendor's Solicitors (who are hereby irrevocably authorised to receive that consideration) on behalf of the Vendor; (b) deliver to the Vendor's Solicitors a counterpart of the Tax Covenant duly executed by the Purchaser; (c) if requested, and at the Vendor's cost, deliver to the Vendor's Solicitors a legal opinion in a form reasonably satisfactory to the Vendor as to the validity and enforceability of the guarantee contained within Clause 11 of this Agreement and if such opinion is that such guarantee is not valid and enforceable such amendments shall be made to the guarantee as render it valid and enforceable; and (d) as agent for the Company, repay the Inter-Company Debt by bankers draft to the Vendor's Solicitors (who are hereby irrevocably authorised to receive that payment) on behalf of the Vendor and its subsidiaries and Associates. The delivery of a bankers draft to the Vendor's Solicitors shall be a full and sufficient discharge to the Purchaser for the monies payable on Completion and the Purchaser shall not be concerned to see to the application of any payment by the Purchaser under this Clause 4.3. 4.4 If all the provisions of Clause 4.2 are not complied with in full on Completion the Purchaser may: (a) defer Completion to a date not more than 28 days after the date specified in Clause 4.1 in which event the provisions of this Clause 4.4 shall apply to Completion as so deferred; or (b) proceed to Completion so far as practicable without prejudice to its rights under this Agreement or otherwise and so that any provision of Clause 4.2 which may not have been complied with at Completion shall at the sole discretion of the Purchaser be held over to such future date or dates as the Purchaser may in its sole discretion determine; or (c) terminate this Agreement (save for Clauses 12, 13, 14 and 20, which shall remain in full force and effect) provided that such termination shall not affect the rights and obligations of the parties which have accrued prior to termination and shall not limit or exclude any other rights or remedies of the Purchaser in respect of any failure by the Vendor to comply with the requirements of Clause 4.2 on the due date. 4.5 The Vendor shall use all reasonable endeavours to procure compliance with the provisions of Clause 4.2 on any date set for Completion in accordance with this Agreement. 4.6 The Vendor undertakes to and covenants with the Purchaser (for itself and as trustee for the Company) that if, after Completion, it is discovered that the Company had on or before Completion given or undertaken any guarantees, indemnities or similar securities in respect of the obligations or liabilities of any person other than the Company and such guarantees, indemnities or similar securities were not finally and unconditionally released on or before Completion, the Vendor will fully indemnify the Purchaser and the Company and keep each of them fully indemnified on demand against all claims, demands, actions, proceedings, damages, losses, costs, expenses or liabilities suffered or incurred by the Purchaser or the Company under or in connection with such guarantees, indemnities or similar obligations.
Appears in 1 contract
Sources: Share Purchase Agreement (4front Software International Inc/Co/)
Completion. 4.1 5.1 Completion shall take place at the offices of Company’s office on the Purchaser's Solicitors immediately following the signing of this Agreement Completion Date at 5:00 p.m. (or at such other place or and time as the Vendor and the Purchaser parties may agree) when all the acts and requirement set out in this Clause 5 shall be complied with.
4.2 At Completion 5.2 On Completion, the Vendor shall procure:
(a) the delivery to the Purchaser of duly completed Vendors, individually and executed transfers of the Shares by the registered holders of the Shares in favour of the Purchaser collectively, and or its nominees together with valid share certificates representing the Shares and all (if any) other documents required to give good title to the Shares;
(b) the delivery to the Purchaser of powers of attorney in the agreed form duly executed by the registered holders of the Shares;
(c) the delivery to the Purchaser of the Tax Covenant duly executed by the Vendor;
(d) the delivery to the Purchaser of the following, each duly executed and in form and substance satisfactory to the Purchaser:-
(i) a deed of release given in relation to the Company Guarantee;
(iias the case may be) a deed of release by each person holding deliver or being entitled to any Encumbrance over the Shares or any of the assets of the Company;
(iii) a deed of waiver by the Vendor waiving any claim it or any of its subsidiaries or Associates may have against the Company;
(iv) deeds of waiver by each co-guarantor of the Company in respect of the Company Guarantee;
(e) the delivery to the Purchaser of the statutory books (duly written up to date) and the certificate(s) of incorporation of the Company;
(f) procure the delivery to the Purchaser of all current cheque books the following:
(a) each Vendor delivers their respective relevant instruments of transfer and deposit books relating to all bank accounts contract notes in respect of the Company;
(g) transfer of their respective Sale Shares duly executed by the delivery to respective Vendor in favor of the Purchaser of all documents of title relating to the Properties;
(hor such other nominee(s) the delivery to as the Purchaser of copies of the minutes of the meetings of the boards of directors of the Vendor in the agreed form, authorising (in each case) the entry into of the transaction the subject of this Agreement, approving this Agreement and any other agreements or documents to be executed pursuant to or in connection with it and appointing the relevant signatory to sign this Agreement may direct and such other agreements documents as may be required to give a good and documents on their behalf certified by the company secretary of the Vendor together with (in each case) confirmation, in the agreed form, from the company secretary that the authority conferred remains valid at Completion;
(i) the passing of effective resolutions of the Directors resolving to register the transfers of the Shares subject only to stamping of the share transfers;
(j) (at the cost of the Vendor) the convening and holding of all such meetings, the passing of all such resolutions, the execution and delivery of all such documents and the taking of all other action to the extent reasonably necessary in order to complete the transfer of title to the Sale Shares to the Purchaser free from all Encumbrances or such nominee(s) and to enable the Purchaser or such nominee(s) to exercise become the registered and receive beneficial holder thereof free from all rights and benefits attaching Encumbrances to or arising from the SharesPurchaser’s satisfaction;
(kb) with effect each Vendor delivers their definitive share certificates in respect of their respective Sale Shares and other evidence as may be required by the Purchaser showing that the Vendor is the beneficial owner of the number of their respective 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 Clauses 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) 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 Purchaser, at its sole discretion, for the Company’s executive management staff for a period of at least one year after the Completion Date;
(v) all correspondence and other documents belonging to the Company (including its constitutional documents); and provided that, if the Purchaser so agrees, delivery of all 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 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 2016 Accounts (which shall not have any deviation from the Accounts as contained in Schedule 3).
5.3 On Completion, the appointment Company shall procure a meeting of the shareholders/directors (as directors and secretary appropriate) of the Company of at which such person or persons matters shall be dealt with and resolved upon as the Purchaser shall have nominated require for the purposes of giving effect to the provisions of this Agreement including:
(a) approving the sale and the resignation of each purchase of the Directors Sale Shares; and
(except ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ b) amending the memorandum and ▇▇▇▇ ▇▇▇▇▇) and the secretary articles of association of the Company as may be required by delivery of a letter under seal from each such Director and the secretary resigning from his offices and from any employment he may have with the Company with effect from Completion and acknowledging that he has no claim against the Company either actual or contingent Purchaser in respect of any cause matter or thing (statutory or otherwise);
(l) the resignation of the auditors of the Company (without compensation for loss of office or any other claim save for proper professional fees for services rendered in respect of their duties as auditors writing prior to the completion of the 1997 Audit) with effect from completion of the 1997 Audit and the delivery of a statement by them that there are no circumstances connected with their ceasing to hold office which they consider should be brought to the attention of the members or creditors of the Company;Completion.
(mc) revocation of all existing authorities to the bankers of the Company relating to bank accounts and the grant of authority to such persons as the Purchaser may nominate to operate the same;
(n) that all books, records and files of the Company are in its possession or under its control and where any such are not at the Properties that the Purchaser is given details of their whereabouts and any necessary authority to collect them;
(o) the delivery to the Purchaser of duly completed and executed transfers of all shares in the capital of Firstpoint Services Limited not registered issued share certificates in the name of the Company, Purchaser or its nominee and to register the statutory books and common seal (if any) of Firstpoint Services Limited and certificates for all Purchaser or its nominee in the share register of the issued shares in Firstpoint Services LimitedCompany.
4.3 Immediately following fulfilment 5.4 Against performance of all the matters referred to in Clause 4.2 obligations by the Vendors and or the Company (as the case may be) under Clauses 5.2 and 5.3 above, the Purchaser shall:
(a) procure that that part cause to be delivered to each of the Consideration payable Vendors their respective Depository Trust Certificate in cash on Completion is paid by bankers draft to MGI in the Vendor's Solicitors (who are hereby irrevocably authorised to receive that consideration) on behalf name of the Vendor;respective Vendor or their respective nominee(s) for the respective Consideration Shares; and
(b) deliver to the Vendor's Solicitors a counterpart each of the Tax Covenant duly executed by Vendors a certified copy of the Purchaser;
(c) if requesteddirectors’ resolutions of the Purchaser approving this Agreement, and at the Vendor's cost, deliver to the Vendor's Solicitors a legal opinion in a form reasonably satisfactory to the Vendor as to the validity and enforceability certified copy of the guarantee contained within Clause 11 directors’ resolutions of the Company approving this Agreement and if such opinion is that such guarantee is not valid and enforceable such amendments shall be made to Agreement.
5.5 If the guarantee as render it valid and enforceable; and
(d) as agent for Vendors, individually or collectively, or the Company, repay the Inter-Company Debt as appropriate, shall fail to do anything required to be done by bankers draft them under Clauses 5.2 and 5.3, without prejudice to any other right or remedy available to the Vendor's Solicitors (who are hereby irrevocably authorised to receive that payment) on behalf of the Vendor and its subsidiaries and Associates. The delivery of a bankers draft to the Vendor's Solicitors shall be a full and sufficient discharge to the Purchaser for the monies payable on Completion and the Purchaser shall not be concerned to see to the application of any payment by the Purchaser under this Clause 4.3.
4.4 If all the provisions of Clause 4.2 are not complied with in full on Completion Purchaser, the Purchaser may:
(a) defer Completion to a date day not more later than 28 14 days after the date specified in Clause 4.1 in which event fixed for Completion (and so that the provisions of this Clause 4.4 paragraph (a) shall apply to Completion as so deferred); or
(b) proceed to Completion so far as practicable but without prejudice to its the Purchaser’s rights under this Agreement or otherwise and so to the extent that any provision of Clause 4.2 which may the Vendor shall not have been complied with at Completion shall at the sole discretion of the Purchaser be held over to such future date or dates as the Purchaser may in its sole discretion determine; ortheir obligations
(c) terminate rescind this Agreement (save for Clauses 12, 13, 14 and 20, which shall remain in full force and effect) provided that such termination shall not affect the rights and obligations of the parties which have accrued prior to termination and shall not limit or exclude any other rights or remedies of the Purchaser in respect of any failure by the Vendor to comply with the requirements of Clause 4.2 without liability on the due dateits part.
4.5 5.6 The Vendor parties to the Agreement confirm and agree that Clauses 6 to 17 shall use all reasonable endeavours to procure compliance with survive the provisions of Clause 4.2 on any date set for Completion in accordance with this AgreementCompletion.
4.6 The Vendor undertakes to and covenants with the Purchaser (for itself and as trustee for the Company) that if, after Completion, it is discovered that the Company had on or before Completion given or undertaken any guarantees, indemnities or similar securities in respect of the obligations or liabilities of any person other than the Company and such guarantees, indemnities or similar securities were not finally and unconditionally released on or before Completion, the Vendor will fully indemnify the Purchaser and the Company and keep each of them fully indemnified on demand against all claims, demands, actions, proceedings, damages, losses, costs, expenses or liabilities suffered or incurred by the Purchaser or the Company under or in connection with such guarantees, indemnities or similar obligations.
Appears in 1 contract
Completion. 4.1 Completion of the Transaction shall take place at the offices of the Purchaser's Solicitors immediately following the signing of this Agreement or at such other place or time as the Vendor and the Purchaser may agree.
4.2 At Completion the Vendor shall procure:
(a) the delivery to the Purchaser of duly completed and executed transfers of the Shares by the registered holders of the Shares in favour of the Purchaser or its nominees together with valid share certificates representing the Shares and all (if any) other documents required to give good title to the Shares;
(b) the delivery to the Purchaser of powers of attorney in the agreed form duly executed by the registered holders of the Shares;
(c) the delivery to the Purchaser of the Tax Covenant duly executed by the Vendor;
(d) the delivery to the Purchaser of the following, each duly executed and in form and substance satisfactory to the Purchaser:-
(i) a deed of release given in relation to the Company Guarantee;
(ii) a deed of release by each person holding or being entitled to any Encumbrance over the Shares or any of the assets of the Company;
(iii) a deed of waiver by the Vendor waiving any claim it or any of its subsidiaries or Associates may have against the Company;
(iv) deeds of waiver by each co-guarantor of the Company in respect of the Company Guarantee;
(e) the delivery to the Purchaser of the statutory books (duly written up to date) and the certificate(s) of incorporation of the Company;
(f) the delivery to the Purchaser of all current cheque books and deposit books relating to all bank accounts of the Company;
(g) the delivery to the Purchaser of all documents of title relating to the Properties;
(h) the delivery to the Purchaser of copies of the minutes of the meetings of the boards of directors of the Vendor in the agreed form, authorising (in each case) the entry into of the transaction the subject of this Agreement, approving this Agreement and any other agreements or documents to be executed pursuant to or in connection with it and appointing the relevant signatory to sign this Agreement and such other agreements and documents on their behalf certified by the company secretary of the Vendor together with (in each case) confirmation, in the agreed form, from the company secretary that the authority conferred remains valid at Completion;
(i) the passing of effective resolutions of the Directors resolving to register the transfers of the Shares subject only to stamping of the share transfers;
(j) (at the cost of the Vendor) the convening and holding of all such meetings, the passing of all such resolutions, the execution and delivery of all such documents and the taking of all other action to the extent reasonably necessary in order to complete the transfer of title to the Shares to the Purchaser free from all Encumbrances and to enable the Purchaser to exercise and receive all rights and benefits attaching to or arising from the Shares;
(k) with effect from Completion, the appointment as directors and secretary of the Company of such person or persons as the Purchaser shall have nominated and the resignation of each of the Directors (except ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇ and ▇▇▇▇ ▇▇▇▇▇) and after the secretary satisfaction of the Company condition referred to in paragraph 6 on date to be agreed by delivery of a letter under seal from each such Director and the secretary resigning from his offices and from any employment he may have with parties hereto whereupon:
(A) the Company with effect from Completion shall procure that there shall be held a meeting of its board of directors at which it shall be resolved to allot and acknowledging that he has no claim against issue the Company either actual or contingent Shares on the terms set out in respect of any cause matter or thing (statutory or otherwise)Clause 2;
(lB) the resignation of liability to pay subscription monies for the auditors of Shares shall be set off against and shall extinguish the Debt and the Vendor shall deliver to the Company (without compensation for loss of office or any other claim save for proper professional fees for services rendered in respect of their duties as auditors prior to a receipt confirming the completion of the 1997 Audit) with effect from completion of the 1997 Audit Debt is extinguished and the delivery Company and the Vendor shall make the appropriate entries in their respective books of a statement by them that there are no circumstances connected with their ceasing to hold office which they consider should be brought to the attention of the members or creditors of the Companyaccount;
(mC) revocation of all existing authorities the Company shall procure to be delivered to the bankers Vendor a duly executed share certificate for the Shares stating them to be credited as fully paid and that the appropriate entries are made in its register of members to record the Vendor as being the registered holder of the Company relating to bank accounts and the grant of authority to such persons as the Purchaser may nominate to operate the sameShares;
(n) that all books, records and files of the Company are in its possession or under its control and where any such are not at the Properties that the Purchaser is given details of their whereabouts and any necessary authority to collect them;
(oD) the delivery Vendor shall deliver or cause to be delivered to the Purchaser of duly completed and executed transfers of all shares in the capital of Firstpoint Services Limited not registered in into the name of the Company, the statutory books and common seal (if any) of Firstpoint Services Limited and certificates for all Purchaser or its nominee in respect of the issued shares in Firstpoint Services Limited.
4.3 Immediately following fulfilment of all Sale Shares and Quest Sale Shares, together with the matters referred to in Clause 4.2 the Purchaser shall:
(a) procure that that part of the Consideration payable in cash on Completion is paid by bankers draft to the Vendor's Solicitors (who are hereby irrevocably authorised to receive that consideration) on behalf of the Vendorrelevant share certificates;
(bE) deliver to the Vendor's Solicitors a counterpart of £1 for the Tax Covenant duly executed Sale Shares and the £1 for the Quest Shares shall be paid by the Purchaser;
(c) if requested, and at the Vendor's cost, deliver to the Vendor's Solicitors a legal opinion in a form reasonably satisfactory Purchaser to the Vendor as to the validity on demand and enforceability of the guarantee contained within Clause 11 of this Agreement and if such opinion is that such guarantee is not valid and enforceable such amendments shall be made to the guarantee as render it valid and enforceablemeanwhile left on inter-company account; and
(dF) as agent for the Company, repay Company shall deliver to the Vendor the Inter-Company Debt by bankers draft to the Vendor's Solicitors (who are hereby irrevocably authorised to receive that payment) on behalf of the Vendor company Credit Agreement and its subsidiaries and Associates. The delivery of a bankers draft to the Vendor's Solicitors shall be a full and sufficient discharge to the Purchaser for the monies payable on Completion and the Purchaser shall not be concerned to see to the application of any payment by the Purchaser under this Clause 4.3.
4.4 If all the provisions of Clause 4.2 are not complied with in full on Completion the Purchaser may:
(a) defer Completion to a date not more than 28 days after the date specified in Clause 4.1 in which event the provisions of this Clause 4.4 shall apply to Completion as so deferred; or
(b) proceed to Completion so far as practicable without prejudice to its rights under this Agreement or otherwise and so that any provision of Clause 4.2 which may not have been complied with at Completion shall at the sole discretion of the Purchaser be held over to such future date or dates as the Purchaser may in its sole discretion determine; or
(c) terminate this Agreement (save for Clauses 12, 13, 14 and 20, which shall remain in full force and effect) provided that such termination shall not affect the rights and obligations of the parties which have accrued prior to termination and shall not limit or exclude any other rights or remedies of the Purchaser in respect of any failure by the Vendor to comply with the requirements of Clause 4.2 on the due date.
4.5 The Vendor shall use all reasonable endeavours to procure compliance with the provisions of Clause 4.2 on any date set for Completion in accordance with this Agreement.
4.6 The Vendor undertakes to and covenants with the Purchaser (for itself and as trustee for the Company) that if, after Completion, it is discovered that instruct the Company had on or before Completion given or undertaken any guarantees, indemnities or similar securities in respect of Secretary to cause to be filed at Companies House the obligations or liabilities of any person other than the Company and such guarantees, indemnities or similar securities were not finally and unconditionally released on or before Completion, the Vendor will fully indemnify the Purchaser and the Company and keep each of them fully indemnified on demand against all claims, demands, actions, proceedings, damages, losses, costs, expenses or liabilities suffered or incurred by the Purchaser or the Company under or in connection with such guarantees, indemnities or similar obligationsappropriate Form 88(2).
Appears in 1 contract
Sources: Share Purchase Agreement (Global Crossing (UK) Finance PLC)
Completion. 4.1 3.1 Completion shall take place at the offices of Mourant du Feu & Jeune, 22 Grenville Street, St Helier, Jersey immediately after the Purchaser's Solicitors immediately following the signing execution of this Agreement or at such other place or time as the Vendor and the Purchaser may agreeagreement.
4.2 At 3.2 On Completion the Vendor Vendors shall procure:
(a) deliver to, or procure the delivery to the Purchaser of duly completed and executed of:-
(a) transfers of in common form relating to all the Shares by the registered holders of the Shares duly executed in favour of the Purchaser (or its nominees together with valid share certificates representing the Shares and all (if any) other documents required to give good title as it may have directed in writing prior to the Sharesdate hereof);
(b) the delivery share certificates relating to the Purchaser of powers of attorney in the agreed form duly executed by the registered holders of the Shares;
(c) the delivery to the Purchaser of the Tax Covenant duly effective written resignations executed by the Vendor;
(d) the delivery to the Purchaser of the following, each duly executed and in form and substance satisfactory to the Purchaser:-
(i) a deed of release given in relation to the Company Guarantee;
(ii) a deed of release by each person holding or being entitled to any Encumbrance over the Shares or any of the assets of the Company;
(iii) a deed of waiver by the Vendor waiving any claim it or any of its subsidiaries or Associates may have against the Company;
(iv) as their respective deeds of waiver by each co-guarantor of the Company in respect of the Company Guarantee;
(e) the delivery to the Purchaser of the statutory books (duly written up to date) and the certificate(s) of incorporation of the Company;
(f) the delivery to the Purchaser of all current cheque books and deposit books relating to all bank accounts of the Company;
(g) the delivery to the Purchaser of all documents of title relating to the Properties;
(h) the delivery to the Purchaser of copies of the minutes of the meetings of the boards of directors of the Vendor in the agreed form, authorising (in each case) the entry into of the transaction the subject of this Agreement, approving this Agreement and any other agreements or documents to be executed pursuant to or in connection with it and appointing the relevant signatory to sign this Agreement and such other agreements and documents on their behalf certified by the company secretary of the Vendor together with (in each case) confirmation, in the agreed form, from the company secretary that the authority conferred remains valid at Completion;
(i) the passing of effective resolutions of the Directors resolving to register the transfers of the Shares subject only to stamping of the share transfers;
(j) (at the cost of the Vendor) the convening and holding of all such meetings, the passing of all such resolutions, the execution and delivery of all such documents and the taking of all other action to the extent reasonably necessary in order to complete the transfer of title to the Shares to the Purchaser free from all Encumbrances and to enable the Purchaser to exercise and receive all rights and benefits attaching to or arising from the Shares;
(k) with effect from Completion, the appointment as directors and secretary of the Company of such person or persons as the Purchaser shall have nominated and the resignation of each of the Directors (except ▇▇▇▇▇ ▇▇▇▇▇▇ and ▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ and ▇▇▇▇ ▇▇▇▇▇) from their offices as director and the secretary any office or employment of or by the Company by delivery of containing a letter under seal from each such Director and the secretary resigning from his offices and from any employment he may confirmation that they have with the Company with effect from Completion and acknowledging that he has no claim against the Company either for compensation for loss of office or termination of employment or otherwise whether statutory or otherwise or for unpaid remuneration;
(d) the Deed of Indemnity duly executed by the Vendors;
(e) a release duly executed as a deed by each of the Vendors in the agreed form, releasing the Company and the Subsidiaries from any liability whatsoever (actual or contingent contingent) which may be owing to the Vendors by the Company or any of the Subsidiaries;
(f) a certified copy of the release given by Bank of Ireland in relation to all security granted pursuant to the Bank of Ireland Facility;
(g) written confirmation from Barclays Bank plc that the initial conditions precedent contained in the Receivables Financing Agreement have been satisfied;
(h) a copy of a legal opinion given by A & L Goodbody that there is a true sale in respect of the Receivables Financing Agreement;
(i) a certified copy of an amendment agreement in respect of the TAGS Facility and the Liquidity Facility;
(j) a copy of a legal opinion given by A & L Goodbody to, amongst others, National Westminster Bank Plc confirming that their opinion dated 29 May 1998 and given in respect of the TAGS Facility remains accurate and correct;
(k) written confirmation from BHF BANK AG that it will not exercise any cause matter or thing (statutory or otherwise)of its rights to demand the repayment of any amounts outstanding under the BHF Loan Agreement arising as a result of the acquisition;
(l) the resignation Indemnity Escrow and Stock Pledge Agreement duly executed by each of the auditors of the Company (without compensation for loss of office or any other claim save for proper professional fees for services rendered in respect of their duties as auditors prior to the completion of the 1997 Audit) with effect from completion of the 1997 Audit Vendors and the delivery Vendors' Representative, together with the 10 stock powers described in clause 3.1 of a statement by them that there are no circumstances connected with their ceasing to hold office which they consider should be brought to the attention of the members or creditors of the Companysuch agreement;
(m) revocation the Registration Rights Agreement duly executed by each of all existing authorities the Vendors; and
(n) opinions in the agreed forms from the Vendor's Solicitors and the legal advisers to the bankers Vendors and the Company in each relevant jurisdiction relating, inter alia, to the right, power and authority of the Vendors to enter into this agreement and the Transaction Documents.
3.3 On Completion the Vendors shall make available to, or procure the availability to the Purchaser of:-
(a) the common seals, certificates of incorporation and statutory books and share certificate books of the Company and the Subsidiaries;
(b) to the extent that they are in the possession or control of the Company or the relevant Subsidiary, all books of account or reference as to customers and other records and all insurance policies in any way relating to bank accounts or concerning the respective businesses of the Company and the grant Subsidiaries;
(c) to the extent that they are in the possession or control of authority the Company or the Subsidiaries all licences, consents, permits and authorisations obtained by or issued to the Company or the Subsidiaries or any other person in connection with the business carried on by it and them and such contracts, deeds or other documents (including assignments of any such licences) as shall have been required by the Purchaser's Solicitors prior to the date hereof;
(d) all land certificates, charge certificates, leases, title deeds and other documents relating to the Properties which are located in Ireland, Japan and the United States of America (save to the extent that the same are in the possession of mortgagees thereof disclosed in writing by or on behalf of the Vendors to the Purchaser or its representatives); and
(e) share certificates relating to all of the issued shares of each of the Subsidiaries.
3.4 At Completion (and prior to the taking effect of the resignations of the directors referred to in clause 3.2 (c)) the Vendors shall procure the passing of board resolutions of the Company:-
(a) sanctioning for registration (subject where necessary to due stamping) the transfers in respect of the Shares;
(b) appointing such persons as the Purchaser may nominate to operate be additional directors of the same;Company; and
(nc) amending bank mandates by the removal and appointment of such persons as the Purchaser may nominate as authorised signatories.
3.5 On Completion the Purchaser shall deliver to the Vendors' Representative:-
(a) written confirmation from the Purchaser's transfer agent ("Transfer Agent") that all books, records and files of the Company are in its possession or under its control and where any such are not at the Properties that the Purchaser is given details of their whereabouts and any necessary authority to collect them;stock certificates evidencing that:-
(oi) the delivery Consideration Shares, other than the Escrow Shares, have been issued to the Purchaser of duly completed and executed transfers of all shares in the capital name of Firstpoint Services Limited not registered each Vendor in the amounts set out opposite each Vendor's name in column 2 of part C of schedule 1; and
(ii) the Escrow Shares have been issued to and in the name of the Company, the statutory books and common seal Escrow Agent (if any) of Firstpoint Services Limited and certificates for all as nominee of the issued shares Vendors) in Firstpoint Services Limited.
4.3 Immediately following fulfilment the aggregate amounts set out in column 3 of all the matters referred to in Clause 4.2 the Purchaser shall:
(a) procure that that part C of the Consideration payable in cash on Completion is paid by bankers draft to the Vendor's Solicitors (who are hereby irrevocably authorised to receive that consideration) on behalf of the Vendorschedule 1;
(b) deliver a certified copy of a resolution of the board of directors of the Purchaser authorising the entry into of this agreement by the Purchaser and the allotment of the Consideration Shares;
(c) an opinion in the agreed form from Arnall Golden & ▇▇▇▇▇▇▇ relating, inter alia, to the Vendor's Solicitors a counterpart right, power and authority of the Tax Covenant Purchaser to enter into this agreement and the Transaction Documents;
(d) the Registration Rights Agreement duly executed by the Purchaser;
(c) if requested, and at the Vendor's cost, deliver to the Vendor's Solicitors a legal opinion in a form reasonably satisfactory to the Vendor as to the validity and enforceability of the guarantee contained within Clause 11 of this Agreement and if such opinion is that such guarantee is not valid and enforceable such amendments shall be made to the guarantee as render it valid and enforceable; and
(de) as agent for the CompanyIndemnity Escrow and Stock Pledge Agreement duly executed by the Purchaser.
3.6 On Completion, repay the Inter-Company Debt by bankers draft to the Vendor's Solicitors (who are hereby irrevocably authorised to receive that payment) and on behalf of each of the Vendor and its subsidiaries and Associates. The delivery of a bankers draft to the Vendor's Solicitors shall be a full and sufficient discharge to the Purchaser for the monies payable on Completion and Vendors, the Purchaser shall not be concerned to see to the application of any payment by the Purchaser under this Clause 4.3.
4.4 If all the provisions of Clause 4.2 are not complied with in full on Completion the Purchaser may:
(a) defer Completion to a date not more than 28 days after the date specified in Clause 4.1 in which event the provisions of this Clause 4.4 shall apply to Completion as so deferred; or
(b) proceed to Completion so far as practicable without prejudice to its rights under this Agreement or otherwise and so that any provision of Clause 4.2 which may not have been complied with at Completion shall at the sole discretion of the Purchaser be held over to such future date or dates as the Purchaser may in its sole discretion determine; or
(c) terminate this Agreement (save for Clauses 12, 13, 14 and 20, which shall remain in full force and effect) provided that such termination shall not affect the rights and obligations of the parties which have accrued prior to termination and shall not limit or exclude any other rights or remedies of the Purchaser in respect of any failure by the Vendor to comply with the requirements of Clause 4.2 on the due date.
4.5 The Vendor shall use all reasonable endeavours to procure compliance with the provisions of Clause 4.2 on any date set for Completion in accordance with this Agreement.
4.6 The Vendor undertakes to and covenants with the Purchaser (for itself and as trustee for the Company) that if, after Completion, it is discovered that the Company had on or before Completion given or undertaken any guarantees, indemnities or similar securities Transfer Agent shall deposit into escrow that aggregate number of Consideration Shares set out in column 3 of part C of schedule 1 in respect of the obligations or liabilities General Indemnified Claims (as defined in clause 4.7 below) (the "Escrow Shares"), which Escrow Shares shall be held by the Escrow Agent as a non-exclusive source for claims for indemnification hereunder in accordance with the terms of the Indemnity Escrow and Stock Pledge Agreement.
3.7 As soon as reasonably practicable following Completion and in any person other event no later than the Company and such guarantees, indemnities or similar securities were not finally and unconditionally released on or before 5 business days after Completion, the Vendor will fully indemnify Purchaser shall procure that the Purchaser Transfer Agent shall despatch to the Vendors' Representative (for these purposes, care of the Vendors' Solicitors) stock certificates in respect of the Consideration Shares referred to in clause 3.5(a)(i) above and shall despatch to the Company and keep each Escrow Agent stock certificates in respect of them fully indemnified on demand against all claims, demands, actions, proceedings, damages, losses, costs, expenses or liabilities suffered or incurred by the Purchaser or the Company under or Escrow Shares referred to in connection with such guarantees, indemnities or similar obligationsclause 3.5(a)(ii) above.
Appears in 1 contract
Sources: Acquisition Agreement (Profit Recovery Group International Inc)
Completion. 4.1 7.1 Completion shall take place at the offices of the Purchaser's Seller’s Solicitors immediately following the signing of this Agreement or at such other place or time as the Vendor parties may agree on the Completion Date when all of the following business shall be transacted:
7.1.1 the Seller shall deliver to the Buyer (or, in the case of the items described in clause 7.1.1(g), 7.1.1(h) and 7.1.1(q), make available at the Purchaser may agree.
4.2 At Completion the Vendor shall procure:Company’s registered office):
(a) the delivery to the Purchaser of duly completed and executed transfers certified copies of the Shares by minutes recording the registered holders resolution of the Shares in favour board of directors of the Purchaser or its nominees together with valid share certificates representing Seller authorising the Shares sale of the Sale Share and all (if any) the other documents required to give good title to the Sharestransactions contemplated by this Agreement;
(b) a transfer in respect of the delivery to Sale Share duly executed and completed in favour of the Purchaser Buyer (or any person the Buyer nominates for this purpose), together with the certificate for the Sale Share and the duly executed power of attorney or other authority under which the transfer has been executed;
(c) irrevocable powers of attorney in the agreed form duly executed by each of the registered holders of the Shares;
(c) Sale Share in favour of the delivery Buyer to enable the Buyer to exercise all voting and other rights attaching to the Purchaser Sale Share pending registration of the Tax Covenant duly executed by transfer to the VendorBuyer or its nominee;
(d) written resignations (expressed to take effect from the delivery to the Purchaser end of the following, each duly executed and in form and substance satisfactory to the Purchaser:-
(i) a deed of release given in relation to the Company Guarantee;
(ii) a deed of release by each person holding or being entitled to any Encumbrance over the Shares or any board meeting of the assets relevant Group Company from ▇▇▇▇▇▇▇ ▇▇▇▇ and ▇▇▇▇ ▇▇▇▇▇▇▇▇ of each Group Company, resigning from their respective offices and employments, in each case executed as deeds in the Company;
(iii) a deed of waiver by the Vendor waiving any claim it or any of its subsidiaries or Associates may have against the Company;
(iv) deeds of waiver by each co-guarantor of the Company in respect of the Company Guaranteeagreed form;
(e) a notice of immediate resignation from the delivery auditor of each Group Company, complying in all respects with the requirements of sections 516 and 519 CA 2006 and containing a statement that there are no circumstances connected with the auditor ceasing to hold office that it considers should be brought to the Purchaser attention of the statutory books (duly written up to date) and the certificate(s) of incorporation members or creditors of the Companyrelevant company, accompanied by a written confirmation that such auditors have no claims for unpaid fees or expenses;
(f) duly executed transfers (in favour of such person or persons as the delivery to the Purchaser Buyer may direct or have directed) of all current cheque books and deposit books relating to all bank accounts shares in the Subsidiaries not registered in the name of any Group Company, together with the Companycertificates for those shares;
(g) (as agents for each Group Company) all its statutory and minute books, its common seal (if any), certificate of incorporation, any certificate or certificates of incorporation on change of name and other documents and records including copies of its memorandum and articles of association;
(h) the delivery to the Purchaser of all deeds and documents of title relating to the Properties;
(hi) (if not already delivered) the delivery to the Purchaser of copies of the minutes of the meetings of the boards of directors of the Vendor in the agreed form, authorising (in each case) the entry into of the transaction the subject of this Agreement, approving this Agreement duly executed Disclosure Letter and any other agreements or documents to be executed pursuant to or in connection with it and appointing the relevant signatory to sign this Agreement and such other agreements and documents on their behalf certified by the company secretary of the Vendor together with (in each case) confirmation, in the agreed form, from the company secretary that the authority conferred remains valid at Completion;
(i) the passing of effective resolutions of the Directors resolving to register the transfers of the Shares subject only to stamping of the share transfersaccompanying disclosure bundles;
(j) (at the cost of the Vendorif not already delivered) the convening and holding of all such meetings, the passing of all such resolutions, the execution and delivery of all such documents and the taking of all other action to the extent reasonably necessary in order to complete the transfer of title to the Shares to the Purchaser free from all Encumbrances and to enable the Purchaser to exercise and receive all rights and benefits attaching to or arising from the Sharesduly executed Taxation Deed;
(k) evidence in a form satisfactory to the Buyer (acting reasonably and in good faith) that all Guarantees given by any Group Company in respect of liabilities of the Seller and any Seller’s Connected Person have been released;
(l) the Transitional Services Agreement duly executed by the Seller and the Company;
(m) evidence satisfactory to the Buyer (acting reasonably and in good faith) of the capacity and authority of each person executing a document referred to in this clause on the Seller’s behalf;
(n) releases in a form acceptable to the Seller and the Buyer (each acting reasonably and in good faith) of all obligations of a Group Company arising under or in connection with effect from Completionfinance facilities and all mortgages, charges, and debentures granted by a Group Company, properly executed by the appointment facility provider or chargee, together with related declarations of satisfaction (Forms 403a) sworn by a director of the relevant Group Company;
(o) the ICC2L Addendum duly executed by the Seller and Imagine Corporate Capital 2 Limited;
(p) the Ancillary Costs and Services Agreement executed by (1) the Seller and (2) Imagine Syndicate Management Limited;
(q) copies of the GP Data in the form and method determined in accordance with clause 5.11.
7.1.2 the Seller shall procure (so far as they are able) that the transfer mentioned in clause 7.1.1(b) is resolved to be registered (subject only to its being stamped);
7.1.3 the Seller shall procure that a board meeting of each Group Company is held at which:
(a) the Buyer’s Accountants are appointed auditors of each Group Company in place of the Auditors;
(b) all bank mandates in force for each Group Company shall be altered (in the manner which the Buyer requires) to reflect the resignations and appointments referred to above;
(c) the current accounting reference period of each Group Company shall be altered so as to end on such lawful date as the Buyer may specify;
(d) the registered office of each Group Company shall be changed to such address(es) as the Buyer may specify;
(e) cause such persons as are nominated by the Buyer and approved by any relevant Regulator to be validly appointed as additional directors and as secretary of each Group Company; and
(f) approves such other matters as are necessary to give full effect to this Agreement;
7.1.4 the Seller shall procure that each Group Company amends its Articles of Association in such person or persons manner as the Purchaser Buyer may prior to Completion have specified; and
7.1.5 the Buyer shall have nominated following compliance by the Seller with clauses 7.1.1 to 7.1.4:
(a) deliver certified copies of the minutes recording the resolution of the board of directors of the Buyer authorising the purchase of the Sale Share and the resignation of each other transactions contemplated by this Agreement;
(i) if the Agreed NAV has been determined pay the Purchase Price;
(ii) if the Agreed NAV has not been determined pay £9,179,567 on account of the Directors (except Purchase Price, by electronic funds transfer for value on the Completion Date to the client account of the Seller’s Solicitors numbered 16122869 at the Royal Bank of Scotland plc of ▇▇/▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ and ▇▇▇▇ ▇▇▇▇▇, sort code 15-10-00 (or such other account or accounts as the Seller’s Solicitors shall specify) and the secretary Seller authorises the payment of the Company by delivery of Purchase Price into the specified account or accounts, which shall constitute a letter under seal from each such Director and the secretary resigning from his offices and from any employment he may have with the Company with effect from Completion and acknowledging that he has no claim against the Company either actual or contingent in respect of any cause matter or thing (statutory or otherwise);
(l) the resignation of the auditors of the Company (without compensation for loss of office or any other claim save for proper professional fees for services rendered in respect of their duties as auditors prior to the completion of the 1997 Audit) with effect from completion of the 1997 Audit and the delivery of a statement by them that there are no circumstances connected with their ceasing to hold office which they consider should be brought to the attention of the members or creditors of the Company;
(m) revocation of all existing authorities to the bankers of the Company relating to bank accounts and the grant of authority to such persons as the Purchaser may nominate to operate the same;
(n) that all books, records and files of the Company are in its possession or under its control and where any such are not at the Properties that the Purchaser is given details of their whereabouts and any necessary authority to collect them;
(o) the delivery to the Purchaser of duly completed and executed transfers of all shares in the capital of Firstpoint Services Limited not registered in the name of the Company, the statutory books and common seal (if any) of Firstpoint Services Limited and certificates for all of the issued shares in Firstpoint Services Limited.
4.3 Immediately following fulfilment of all the matters referred to in Clause 4.2 the Purchaser shall:
(a) procure that that part of the Consideration payable in cash on Completion is paid by bankers draft to the Vendor's Solicitors (who are hereby irrevocably authorised to receive that consideration) on behalf of the Vendor;
(b) deliver to the Vendor's Solicitors a counterpart of the Tax Covenant duly executed by the Purchaser;
(c) if requested, and at the Vendor's cost, deliver to the Vendor's Solicitors a legal opinion in a form reasonably satisfactory to the Vendor as to the validity and enforceability of the guarantee contained within Clause 11 of this Agreement and if such opinion is that such guarantee is not valid and enforceable such amendments shall be made to the guarantee as render it valid and enforceable; and
(d) as agent for the Company, repay the Inter-Company Debt by bankers draft to the Vendor's Solicitors (who are hereby irrevocably authorised to receive that payment) on behalf of the Vendor and its subsidiaries and Associates. The delivery of a bankers draft to the Vendor's Solicitors shall be a full and sufficient good discharge to the Purchaser for the monies payable on Completion and the Purchaser shall not be concerned to see to the application of any payment by the Purchaser under this Clause 4.3.
4.4 If all the provisions of Clause 4.2 are not complied with in full on Completion the Purchaser may:
(a) defer Completion to a date not more than 28 days after the date specified in Clause 4.1 in which event the provisions of this Clause 4.4 shall apply to Completion as so deferred; or
(b) proceed to Completion so far as practicable without prejudice to its rights under this Agreement or otherwise and so that any provision of Clause 4.2 which may not have been complied with at Completion shall at the sole discretion of the Purchaser be held over to such future date or dates as the Purchaser may in its sole discretion determine; or
(c) terminate this Agreement (save for Clauses 12, 13, 14 and 20, which shall remain in full force and effect) provided that such termination shall not affect the rights and obligations of the parties which have accrued prior to termination and shall not limit or exclude any other rights or remedies of the Purchaser in respect of any failure by the Vendor to comply with the requirements of Clause 4.2 on the due date.
4.5 The Vendor shall use all reasonable endeavours to procure compliance with the provisions of Clause 4.2 on any date set for Completion in accordance with this Agreement.
4.6 The Vendor undertakes to and covenants with the Purchaser (for itself and as trustee for the Company) that if, after Completion, it is discovered that the Company had on or before Completion given or undertaken any guarantees, indemnities or similar securities Buyer in respect of the obligations or liabilities of any person other than the Company and such guarantees, indemnities or similar securities were not finally and unconditionally released on or before Completion, the Vendor will fully indemnify the Purchaser and the Company and keep each of them fully indemnified on demand against all claims, demands, actions, proceedings, damages, losses, costs, expenses or liabilities suffered or incurred by the Purchaser or the Company under or in connection with such guarantees, indemnities or similar obligations.Purchase Price;
Appears in 1 contract
Sources: Share Purchase Agreement
Completion. 4.1 6.1 Unless otherwise agreed by the Purchaser and the Vendor, Completion shall take place at the Completion Date at the offices of the Purchaser's Solicitors immediately following the signing of this Agreement or at such other place or time as the Vendor and the Purchaser may agree.
4.2 At Completion the Vendor shall procure:
(a) the delivery to the Purchaser of duly completed and executed transfers of the Shares by the registered holders of the Shares in favour of the Purchaser or its nominees together with valid share certificates representing the Shares and all (if any) other documents required to give good title to the Shares;
(b) the delivery to the Purchaser of powers of attorney in the agreed form duly executed by the registered holders of the Shares;
(c) the delivery to the Purchaser of the Tax Covenant duly executed by the Vendor;
(d) the delivery to the Purchaser of the following, each duly executed and in form and substance satisfactory to the Purchaser:-
(i) a deed of release given in relation to the Company Guarantee;
(ii) a deed of release by each person holding or being entitled to any Encumbrance over the Shares or any of the assets of the Company;
(iii) a deed of waiver by the Vendor waiving any claim it or any of its subsidiaries or Associates may have against the Company;
(iv) deeds of waiver by each co-guarantor of the Company in respect of the Company Guarantee;
(e) the delivery to the Purchaser of the statutory books (duly written up to date) and the certificate(s) of incorporation of the Company;
(f) the delivery to the Purchaser of all current cheque books and deposit books relating to all bank accounts of the Company;
(g) the delivery to the Purchaser of all documents of title relating to the Properties;
(h) the delivery to the Purchaser of copies of the minutes of the meetings of the boards of directors of the Vendor in the agreed form, authorising (in each case) the entry into of the transaction the subject of this Agreement, approving this Agreement and any other agreements or documents to be executed pursuant to or in connection with it and appointing the relevant signatory to sign this Agreement and such other agreements and documents on their behalf certified by the company secretary of the Vendor together with (in each case) confirmation, in the agreed form, from the company secretary that the authority conferred remains valid at Completion;
(i) the passing of effective resolutions of the Directors resolving to register the transfers of the Shares subject only to stamping of the share transfers;
(j) (at the cost of the Vendor) the convening and holding of all such meetings, the passing of all such resolutions, the execution and delivery of all such documents and the taking of all other action to the extent reasonably necessary in order to complete the transfer of title to the Shares to the Purchaser free from all Encumbrances and to enable the Purchaser to exercise and receive all rights and benefits attaching to or arising from the Shares;
(k) with effect from Completion, the appointment as directors and secretary of the Company of such person or persons as the Purchaser shall have nominated and the resignation of each of the Directors (except CMS ▇▇▇▇▇ Star Busmann N.V., Mondriaantoren, ▇▇▇▇▇▇▇▇▇▇▇ ▇▇, ▇▇▇▇ ▇▇ Amsterdam, the Netherlands in the presence of the Notary.
6.2 At Completion, the Vendor and the Purchaser shall, and shall cause the relevant Group Companies to, do all such acts and execute all such documents as shall in the reasonable opinion of the Vendor or the Purchaser be necessary to fully effect the transactions contemplated in this Agreement, including (in the following order):
(a) the Notary shall confirm to the parties that he has received the Consideration and that it is available to him;
(b) the Vendor and the Purchaser shall confirm that the conditions precedent set out in Clause 4.1 have been either fulfilled or waived in accordance with the provisions of Clause 4.4 and parties will deliver to each other copies of all such documents executed pursuant to Clause 4 in fulfillment of those conditions precedent that have not been waived;
(c) the Vendor shall deliver to the Purchaser:
(i) the shareholders’ register of the Company in which the transfer of the Shares is to be recorded;
(ii) a certificate in the Agreed Form to the effect that the Vendor Warranties continue to be true and accurate in all material respects and not misleading in any material respect as per Completion except to the extent of those matters that are disclosed in the Disclosure Letter or any additional disclosures made in the Supplementary Disclosure Letter and that the Vendor has complied with its respective obligations under this Agreement;
(iii) the Supplementary Disclosure Letter, if any;
(iv) the written resignation of Messrs. ▇.▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ and ▇▇▇▇ ▇▇▇▇▇) A.S. Raaphorst, as per Completion, as managing director and the secretary employee from all Group Companies and their written confirmation that they have no claims from any cause of action against any of the Company by delivery Group Companies for the period up to an including the date of a letter under seal from each such Director and the secretary resigning from his offices and from any employment he may have with the Company with effect from Completion and acknowledging that he has no claim against the Company either actual or contingent in respect of any cause matter or thing (statutory or otherwise)their resignation;
(lv) the resignation written resolutions of the auditors general meeting of shareholders of the Company (without compensation for loss of office or any other claim save for proper professional fees for services rendered in respect of their duties as auditors prior to the completion of the 1997 Audit) with effect from completion of the 1997 Audit and the delivery of a statement by them that there are no circumstances connected with their ceasing to hold office which they consider should be brought to the attention of the members or creditors of the Company;
(m) revocation of all existing authorities to the bankers of the Company relating to bank accounts and the grant of authority to such persons as the Purchaser may nominate to operate the same;
(n) that all books, records and files of the Company are in its possession or under its control and where any such are not at the Properties that the Purchaser is given details of their whereabouts and any necessary authority to collect them;
(o) the delivery to the Purchaser of duly completed and executed transfers of all shares respective Group Companies in the capital of Firstpoint Services Limited not registered in the name of the Company, the statutory books and common seal (if any) of Firstpoint Services Limited and certificates for all of the issued shares in Firstpoint Services Limited.
4.3 Immediately following fulfilment of all the matters referred to in Clause 4.2 the Purchaser shall:
(a) procure that that part of the Consideration payable in cash on Completion is paid by bankers draft to the Vendor's Solicitors (who are hereby irrevocably authorised to receive that consideration) on behalf of the Vendor;
(b) deliver to the Vendor's Solicitors a counterpart of the Tax Covenant duly executed by the Purchaser;
(c) if requested, and at the Vendor's cost, deliver to the Vendor's Solicitors a legal opinion in a form reasonably satisfactory to the Vendor as to the validity and enforceability of the guarantee contained within Clause 11 of this Agreement and if such opinion is that such guarantee is not valid and enforceable such amendments shall be made to the guarantee as render it valid and enforceable; and
(d) as agent for the Company, repay the Inter-Company Debt by bankers draft to the Vendor's Solicitors (who are hereby irrevocably authorised to receive that payment) on behalf of the Vendor and its subsidiaries and Associates. The delivery of a bankers draft to the Vendor's Solicitors shall be a full and sufficient discharge to the Purchaser for the monies payable on Completion and the Purchaser shall not be concerned to see to the application of any payment by the Purchaser under this Clause 4.3.
4.4 If all the provisions of Clause 4.2 are not complied with in full on Completion the Purchaser may:
(a) defer Completion to a date not more than 28 days after the date specified in Clause 4.1 Agreed Form in which event the provisions of this Clause 4.4 shall apply to Completion as so deferred; or
(b) proceed to Completion so far as practicable without prejudice to its rights under this Agreement or otherwise and so that any provision of Clause 4.2 which may not have been complied with at Completion shall at the sole discretion of the Purchaser be held over to such future date or dates as the Purchaser may in its sole discretion determine; or
(c) terminate this Agreement (save for Clauses 12, 13, 14 and 20, which shall remain in full force and effect) provided that such termination shall not affect the rights and obligations of the parties which have accrued prior to termination and shall not limit or exclude any other rights or remedies of the Purchaser in respect of any failure by the Vendor to comply with the requirements of Clause 4.2 on the due date.
4.5 The Vendor shall use all reasonable endeavours to procure compliance with the provisions of Clause 4.2 on any date set for Completion in accordance with this Agreement.
4.6 The Vendor undertakes to and covenants with the Purchaser (for itself and as trustee for the Company) that if, after Completion, it is discovered that resolved to accept the Company had on or before Completion given or undertaken any guarantees, indemnities or similar securities in respect resignations of the obligations or liabilities of any person other than the Company and such guarantees, indemnities or similar securities were not finally and unconditionally released on or before Completion, the Vendor will fully indemnify the Purchaser and the Company and keep each of them fully indemnified on demand against all claims, demands, actions, proceedings, damages, losses, costs, expenses or liabilities suffered or incurred by the Purchaser or the Company under or in connection with such guarantees, indemnities or similar obligationsMessrs. ▇.▇.
Appears in 1 contract
Sources: Acquisition Agreement (Armstrong World Industries Inc)
Completion. 4.1 Completion shall take place at the offices of the Purchaser's Buyers’ Solicitors immediately following the signing of this Agreement or at such other place or time as the Vendor and the Purchaser may agreeAgreement.
4.2 At Completion The Seller shall deliver to the Vendor shall procureBuyers:
(a) the delivery to the Purchaser of duly completed and executed transfers a certified copy of the Shares by the registered holders resolutions of the Shares in favour directors of the Purchaser or its nominees together with valid share certificates representing Seller authorising the Shares entering into of this Agreement and all (if any) any other documents required to give good title to the Sharestransactions contemplated by it;
(b) a copy of a legal opinion from counsel in the delivery United States of America in the Agreed Form (as to capacity and registration);
(c) completed and signed transfers of the Shares, in favour of the Buyers or as they direct in respect of the Shares being purchased by each of them as set out in the Schedule (Number of Shares being purchased by each Buyer ), together with the relevant share certificates;
(d) written confirmation from the Seller that there are no outstanding guarantees given by a member of the Group in favour of the Seller or its Associates and that neither the Seller nor any of its Associates will be indebted to a member of the Group, save in relation to matters related to the Purchaser of UK Legal Proceedings, and/or the US Legal Proceedings if applicable;
(e) pre-registration powers of attorney in the agreed form duly Agreed Form executed by the registered holders Seller in favour of the Shares;
(c) the delivery to the Purchaser of the Tax Covenant duly executed by the Vendor;
(d) the delivery to the Purchaser of the following, each duly executed and in form and substance satisfactory to the Purchaser:-
(i) a deed of release given in relation to the Company Guarantee;
(ii) a deed of release by each person holding or being entitled to any Encumbrance over the Shares or any of the assets of the Company;
(iii) a deed of waiver by the Vendor waiving any claim it or any of its subsidiaries or Associates may have against the Company;
(iv) deeds of waiver by each co-guarantor of the Company in respect of the Company Guarantee;
(e) the delivery to the Purchaser of the statutory books (duly written up to date) and the certificate(s) of incorporation of the CompanyBuyers;
(f) the delivery to Escrow Agreement in the Purchaser of all current cheque books and deposit books relating to all bank accounts of Agreed Form, executed by the Company;Seller; and
(g) the delivery to the Purchaser of all documents of title relating to the Properties;
(h) the delivery to the Purchaser of copies of the minutes of the meetings of the boards of directors of the Vendor Security Agreement in the agreed formAgreed Form, authorising (in each case) the entry into of the transaction the subject of this Agreement, approving this Agreement and any other agreements or documents to be executed pursuant to or in connection with it and appointing the relevant signatory to sign this Agreement and such other agreements and documents on their behalf certified by the company secretary of the Vendor together with (in each case) confirmation, in the agreed form, from the company secretary that the authority conferred remains valid at Completion;
(i) the passing of effective resolutions of the Directors resolving to register the transfers of the Shares subject only to stamping of the share transfers;
(j) (at the cost of the Vendor) the convening and holding of all such meetings, the passing of all such resolutions, the execution and delivery of all such documents and the taking of all other action to the extent reasonably necessary in order to complete the transfer of title to the Shares to the Purchaser free from all Encumbrances and to enable the Purchaser to exercise and receive all rights and benefits attaching to or arising from the Shares;
(k) with effect from Completion, the appointment as directors and secretary of the Company of such person or persons as the Purchaser shall have nominated and the resignation of each of the Directors (except ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ and ▇▇▇▇ ▇▇▇▇▇) and the secretary of the Company by delivery of a letter under seal from each such Director and the secretary resigning from his offices and from any employment he may have with the Company with effect from Completion and acknowledging that he has no claim against the Company either actual or contingent in respect of any cause matter or thing (statutory or otherwise);
(l) the resignation of the auditors of the Company (without compensation for loss of office or any other claim save for proper professional fees for services rendered in respect of their duties as auditors prior to the completion of the 1997 Audit) with effect from completion of the 1997 Audit and the delivery of a statement by them that there are no circumstances connected with their ceasing to hold office which they consider should be brought to the attention of the members or creditors of the Company;
(m) revocation of all existing authorities to the bankers of the Company relating to bank accounts and the grant of authority to such persons as the Purchaser may nominate to operate the same;
(n) that all books, records and files of the Company are in its possession or under its control and where any such are not at the Properties that the Purchaser is given details of their whereabouts and any necessary authority to collect them;
(o) the delivery to the Purchaser of duly completed and executed transfers of all shares in the capital of Firstpoint Services Limited not registered in the name of the Company, the statutory books and common seal (if any) of Firstpoint Services Limited and certificates for all of the issued shares in Firstpoint Services LimitedSeller.
4.3 Immediately following fulfilment Upon completion of all the matters referred to in Clause 4.2 4.2, the Purchaser shall:
(a) procure that that part Buyers shall pay by means of electronic funds transfer into the Consideration payable in cash on Completion is paid by bankers draft to Seller’s Solicitors account and/or the Vendor's Solicitors (who are hereby irrevocably authorised to receive that consideration) on behalf Seller’s US Attorney’s account the aggregate amount of £308,000 or its US dollar equivalent, being the Vendor;
(b) deliver to the Vendor's Solicitors a counterpart Purchase Price. A payment or series of the Tax Covenant duly executed by the Purchaser;
(c) if requested, and at the Vendor's cost, deliver to the Vendor's Solicitors a legal opinion in a form reasonably satisfactory to the Vendor as to the validity and enforceability of the guarantee contained within Clause 11 of this Agreement and if such opinion is that such guarantee is not valid and enforceable such amendments shall be payments made to the guarantee as render it valid and enforceable; and
(d) as agent for the Company, repay the Inter-Company Debt by bankers draft to the Vendor's Solicitors (who are hereby irrevocably authorised to receive that payment) on behalf of the Vendor and its subsidiaries and Associates. The delivery of a bankers draft to the Vendor's Solicitors shall be a full and sufficient discharge to the Purchaser for the monies payable on Completion and the Purchaser shall not be concerned to see to the application of any payment by the Purchaser under this Clause 4.3.
4.4 If all the provisions of Clause 4.2 are not complied with in full on Completion the Purchaser may:
(a) defer Completion to a date not more than 28 days after the date specified in Clause 4.1 in which event the provisions of this Clause 4.4 shall apply to Completion as so deferred; or
(b) proceed to Completion so far as practicable without prejudice to its rights under this Agreement or otherwise and so that any provision of Clause 4.2 which may not have been complied with at Completion shall at the sole discretion of the Purchaser be held over to such future date or dates as the Purchaser may in its sole discretion determine; or
(c) terminate this Agreement (save for Clauses 12, 13, 14 and 20, which shall remain in full force and effect) provided that such termination shall not affect the rights and obligations of the parties which have accrued prior to termination and shall not limit or exclude any other rights or remedies of the Purchaser in respect of any failure by the Vendor to comply with the requirements of Clause 4.2 on the due date.
4.5 The Vendor shall use all reasonable endeavours to procure compliance with the provisions of Clause 4.2 on any date set for Completion in accordance with this Agreement.
4.6 The Vendor undertakes to and covenants with Clause 4 (Completion ) shall constitute a complete discharge of the Purchaser Buyers’ obligations under Clause 3.1. Upon receipt of the Purchase Price (for itself and as trustee for or any part of it) by the Company) that ifSeller’s Solicitors or the Seller’s US Attorney, after Completion, it is discovered the Seller shall procure that the Company had on or before Completion given or undertaken any guarantees, indemnities or similar securities in respect of Purchase Price is transferred to the obligations or liabilities of any person other than the Company and such guarantees, indemnities or similar securities were not finally and unconditionally released on or before Completion, the Vendor will fully indemnify the Purchaser and the Company and keep each of them fully indemnified on demand against all claims, demands, actions, proceedings, damages, losses, costs, expenses or liabilities suffered or incurred by the Purchaser or the Company under or in connection with such guarantees, indemnities or similar obligationsEscrow Account.
Appears in 1 contract
Completion. 4.1 6.1 Completion shall take place at the offices of the PurchaserBuyer's Solicitors immediately following (or any other location agreed upon by the signing of this Agreement or at such other place or time as the Vendor Seller and the Purchaser may agree.
4.2 At Completion the Vendor shall procure:
(aBuyer) the delivery to the Purchaser of duly completed and executed transfers of the Shares by the registered holders of the Shares in favour of the Purchaser as soon as practicable following satisfaction or its nominees together with valid share certificates representing the Shares and all (if any) other documents required to give good title to the Shares;
(b) the delivery to the Purchaser of powers of attorney in the agreed form duly executed by the registered holders of the Shares;
(c) the delivery to the Purchaser of the Tax Covenant duly executed by the Vendor;
(d) the delivery to the Purchaser of the following, each duly executed and in form and substance satisfactory to the Purchaser:-
(i) a deed of release given in relation to the Company Guarantee;
(ii) a deed of release by each person holding or being entitled to any Encumbrance over the Shares or any of the assets of the Company;
(iii) a deed of waiver by the Vendor waiving any claim it or any of its subsidiaries or Associates may have against the Company;
(iv) deeds of waiver by each co-guarantor of the Company in respect of the Company Guarantee;
(e) the delivery to the Purchaser of the statutory books (duly written up to date) and the certificate(s) of incorporation of the Company;
(f) the delivery to the Purchaser of all current cheque books and deposit books relating to all bank accounts of the Company;
(g) the delivery to the Purchaser of all documents of title relating to the Properties;
(h) the delivery to the Purchaser of copies of the minutes of the meetings of the boards of directors of the Vendor in the agreed form, authorising (in each case) the entry into of the transaction the subject of this Agreement, approving this Agreement and any other agreements or documents to be executed pursuant to or in connection with it and appointing the relevant signatory to sign this Agreement and such other agreements and documents on their behalf certified by the company secretary of the Vendor together with (in each case) confirmation, in the agreed form, from the company secretary that the authority conferred remains valid at Completion;
(i) the passing of effective resolutions of the Directors resolving to register the transfers of the Shares subject only to stamping of the share transfers;
(j) (at the cost of the Vendor) the convening and holding of all such meetings, the passing of all such resolutions, the execution and delivery of all such documents and the taking of all other action to the extent reasonably necessary in order to complete the transfer of title to the Shares to the Purchaser free from all Encumbrances and to enable the Purchaser to exercise and receive all rights and benefits attaching to or arising from the Shares;
(k) with effect from Completion, the appointment as directors and secretary of the Company of such person or persons as the Purchaser shall have nominated and the resignation clause 4 of each of the Directors (except ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Conditions and ▇▇▇▇ ▇▇▇▇▇) and the secretary in any event within two Business Days of the Company by delivery of a letter under seal from each such Director and the secretary resigning from his offices and from any employment he may have with the Company with effect from Completion and acknowledging that he has no claim against the Company either actual satisfaction or contingent in respect of any cause matter or thing (statutory or otherwise);
(l) the resignation waiver of the auditors last remaining Condition.
6.2 At Completion, the Seller shall deliver or cause to be delivered to the Buyer the items listed in Part 2 of Schedule 2 (the Buyer receiving them, where appropriate, as agent for the Company).
6.3 Immediately following satisfaction of the Company (without compensation for loss of office or any other claim save for proper professional fees for services rendered in respect of their duties as auditors prior Seller's obligations pursuant to the completion of the 1997 Audit) with effect from completion of the 1997 Audit and the delivery of a statement by them that there are no circumstances connected with their ceasing to hold office which they consider should be brought to the attention of the members or creditors of the Company;
(m) revocation of all existing authorities to the bankers of the Company relating to bank accounts and the grant of authority to such persons as the Purchaser may nominate to operate the same;
(n) that all books, records and files of the Company are in its possession or under its control and where any such are not at the Properties that the Purchaser is given details of their whereabouts and any necessary authority to collect them;
(o) the delivery to the Purchaser of duly completed and executed transfers of all shares in the capital of Firstpoint Services Limited not registered in the name of the Companyclause 6.2, the statutory books and common seal (if any) of Firstpoint Services Limited and certificates for all of the issued shares in Firstpoint Services Limited.
4.3 Immediately following fulfilment of all the matters referred to in Clause 4.2 the Purchaser Buyer shall:
(a) procure that that part the delivery to the Seller's Solicitors for the account of the Consideration payable Seller of an electronic transfer in cash on Completion is paid by bankers draft to favour of the VendorSeller's Solicitors for the amount of £20,000,000 (who are hereby irrevocably authorised to receive that consideration) on behalf of being the Vendor;Cash Consideration); and
(b) deliver procure the delivery to the Vendor's Solicitors a Seller of the counterpart of the Tax Covenant duly Deed executed by the PurchaserBuyer;
(c) if requested, and at the Vendor's cost, deliver in relation to the Vendor's Solicitors a legal opinion in a form reasonably satisfactory Consideration Shares:
(i) issue and allot such shares to the Vendor as to Seller fully paid;
(ii) cause the validity and enforceability name of the guarantee contained within Clause 11 Seller to be entered into the register of this Agreement and if members of the Buyer as the registered holder of such opinion is that such guarantee is not valid and enforceable such amendments shall be made to the guarantee as render it valid and enforceableshares; and
(iii) instruct its registrars to deliver to the Seller’s Solicitors as soon as possible certificates for such shares;
(d) as agent for procure the Company, repay the Inter-Company Debt by bankers draft delivery to the VendorSeller of the counterpart of the Telemarketing Agreement duly signed by the Buyer; and
(e) procure the delivery to the Seller of the counterpart of the Facilities Transition Services Agreement duly signed by the Buyer;
(f) procure the delivery to the Seller of the counterpart of the International Calls Termination Agreement duly signed by the Buyer;
(g) provide to the Seller a copy of the Buyer’s application to AIM for Admission of the Consideration Shares;
(h) procure the delivery to the Seller of a copy of the minutes of a meeting of the directors of the Buyer issuing and allotting (subject only to Admission) the Consideration Shares to the Seller;
(i) procure the delivery to the Seller of the counterpart of the Trade M▇▇▇ and Domain Name Assignment duly signed by the Buyer; and
(j) procure the delivery to the Seller of the counterpart of the Systems Transition Agreement duly signed by the Buyer.
6.4 The Seller hereby confirms that the Seller's Solicitors (who are hereby irrevocably authorised by the Seller to receive that paymentpayment of the Consideration (including delivery of share certificates in relation to the Consideration Shares) on the Seller's behalf and the receipt of the Vendor and its subsidiaries and Associates. The delivery of a bankers draft to the VendorSeller's Solicitors shall be a full and sufficient discharge to the Purchaser for the monies payable on Completion Buyer of its obligations under clause 3 and the Purchaser Buyer shall not be concerned to see to the application thereof or be responsible for the loss or misapplication of any payment by the Purchaser under this Clause 4.3such sum.
4.4 If all 6.5 The Buyer undertakes with the provisions of Clause 4.2 are not complied with in full on Completion the Purchaser maySeller:
(a) defer Completion on the first Business Day following Completion, to deliver to the London Stock Exchange a date not more than 28 days after duly signed application for admission to AIM of the date specified in Clause 4.1 in which event the provisions of this Clause 4.4 shall apply to Completion as so deferredConsideration Shares; orand
(b) proceed after Completion to Completion so far as practicable without prejudice to use its rights under this Agreement or otherwise and so that any provision of Clause 4.2 which may not have been complied with at Completion shall at the sole discretion of the Purchaser be held over to such future date or dates as the Purchaser may in its sole discretion determine; or
(c) terminate this Agreement (save for Clauses 12, 13, 14 and 20, which shall remain in full force and effect) provided that such termination shall not affect the rights and obligations of the parties which have accrued prior to termination and shall not limit or exclude any other rights or remedies of the Purchaser in respect of any failure by the Vendor to comply with the requirements of Clause 4.2 on the due date.
4.5 The Vendor shall use all reasonable endeavours to procure compliance with obtain Admission of the provisions Consideration Shares as soon as practicable, but in no event following the date falling seven Business Days after Completion. If Admission of Clause 4.2 the Consideration Shares has not occurred on or before the date falling seven Business Days after Completion, the Buyer shall be required to satisfy in cash that part of the Consideration attributable to the Consideration Shares (being £4,000,000), such cash to be payable by electronic transfer to the Seller's Solicitors for the account of the Seller on or before the ninth Business Day after Completion. In the event of any date set for Completion such cash payment being made in accordance with this Agreement.
4.6 The Vendor undertakes to and covenants with the Purchaser (for itself and as trustee for the Company) that if, after Completion, it is discovered that the Company had on or before Completion given or undertaken any guarantees, indemnities or similar securities in respect of the obligations or liabilities of any person other than the Company and such guarantees, indemnities or similar securities were not finally and unconditionally released on or before Completionclause, the Vendor will fully indemnify Seller shall irrevocably cease to be entitled to the Purchaser and the Company and keep each of them fully indemnified on demand against all claims, demands, actions, proceedings, damages, losses, costs, expenses or liabilities suffered or incurred by the Purchaser or the Company under or in connection with such guarantees, indemnities or similar obligationsConsideration Shares.
Appears in 1 contract
Completion. 4.1 Completion shall take place at the offices 5.1 The sale and purchase of the Purchaser's Solicitors immediately following Sale Shares shall be completed on or before the signing expiry of this Agreement thirty (30) days from the date the last of the approvals or at such other place conditions stated in Clause 4 have been obtained or time as fulfilled ("Completion Date") in the Vendor and manner hereinafter set forth:-
5.1.1 the Purchaser may agree.
4.2 At Completion Vendors shall deliver or procure the Vendor shall procure:delivery to NHancement of the following:-
(a) a copy of the delivery resolution of the Board of Directors of the Company (duly certified by a Director or the Company Secretary of the Company) approving the transfer of the Sale Shares from the Vendors to NHancement or its nominee(s) together with signed copies of the waiver(s) of pre-emption rights of any person whomsoever to the Purchaser Sale Shares or any part thereof if such waiver(s) are required under the Articles of duly completed and executed transfers Association of the Shares by Company to enable NHancement or its nominee(s) to be registered as the registered holders transferee(s) of the Shares in favour of the Purchaser or its nominees together with valid share certificates representing the Shares and all (if any) other documents required to give good title to the Sale Shares;
(b) the delivery relevant share certificates relating to the Purchaser of powers of attorney in Sale Shares and the agreed form duly executed by the registered holders valid and registrable transfers in respect thereof in favour of the SharesNHancement or its nominee(s);
(c) the delivery to the Purchaser a copy of the Tax Covenant duly executed by the Vendor;
(d) the delivery to the Purchaser resolutions of the following, each duly executed and in form and substance satisfactory to the Purchaser:-
(i) a deed Board of release given in relation to Directors of the Company Guarantee;
(ii) duly certified by a deed of release by each person holding Director or being entitled to any Encumbrance over the Shares or any Secretary of the assets Company) approving the appointment of four (4) nominees of NHancement as directors of the Company;
(iiid) a deed letters of waiver by the Vendor waiving any claim it or any resignation of its subsidiaries or Associates may have against the Company;
(iv) deeds of waiver by each co-guarantor all directors of the Company in respect other than the directors nominated by NHancement to take effect immediately and without any compensation for loss of the Company Guaranteeoffice;
(e) the delivery to the Purchaser letters of resignation of the statutory books (duly written up to date) Auditors and the certificate(s) of incorporation of the Company;Company Secretary; 8 7
(f) the delivery common seal and all assets and documents belonging to the Purchaser of all current cheque books and deposit books relating to all bank accounts of the Company;
(g) employment agreements between the delivery persons whose names appear below and the Company in a form acceptable to NHancement whereby the Purchaser of all documents of title relating said persons agree to be employed by the Properties;
(h) the delivery to the Purchaser of copies of the minutes of the meetings of the boards of directors of the Vendor Company in the agreed form, authorising designation which appears against their respective names for not less than two (in each case2) years after the entry into of the transaction the subject of this Agreement, approving this Agreement and any other agreements or documents to be executed pursuant to or in connection with it and appointing the relevant signatory to sign this Agreement and such other agreements and documents on their behalf certified by the company secretary of the Vendor together with (in each case) confirmation, in the agreed form, from the company secretary that the authority conferred remains valid at Completion;
(i) the passing of effective resolutions of the Directors resolving to register the transfers of the Shares subject only to stamping of the share transfers;
(j) (at the cost of the Vendor) the convening and holding of all such meetings, the passing of all such resolutions, the execution and delivery of all such documents and the taking of all other action to the extent reasonably necessary in order to complete the transfer of title to the Shares to the Purchaser free from all Encumbrances and to enable the Purchaser to exercise and receive all rights and benefits attaching to or arising from the Shares;
(k) with effect from Completion, the appointment as directors and secretary of the Company of such person or persons as the Purchaser shall have nominated and the resignation of each of the Directors (except Completion Date :- Name Designation ---- ----------- Goh ▇▇▇ ▇▇▇▇▇ Managing Director Ng K▇▇ ▇▇▇ Technical Manager Man ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇Technical Manager Ahil▇▇ ▇▇▇▇▇▇▇▇ and ▇▇▇▇ ▇▇▇▇▇Divisional Manager, Sales; s/o S. O. Thevar
(h) a market stand-off agreement signed by each Vendor substantially in a form acceptable to NHancement;
(i) a Closing Certificate signed by each Vendor whereby the Vendors confirm that the representations, warranties and covenants provided by them under this Agreement remain true and accurate as at the secretary Completion Date;
(j) a Closing Certificate signed by the managing Director of the Company by delivery of a letter under seal from each such Director confirming that the representations and warranties set out in Clauses 6.2.2 to 6.1.28 hereof remain true and accurate, and the secretary resigning from his offices and from any employment he may have with the Company with effect from Completion and acknowledging that he has no claim against the Company either actual or contingent undertakings set out in respect of any cause matter or thing (statutory or otherwise);
(l) the resignation of the auditors of the Company (without compensation for loss of office or any other claim save for proper professional fees for services rendered in respect of their duties as auditors prior Clauses 7.1.1 to the completion of the 1997 Audit) with effect from completion of the 1997 Audit and the delivery of a statement by them that there are no circumstances connected with their ceasing to hold office which they consider should be brought to the attention of the members or creditors of the Company;
(m) revocation of all existing authorities to the bankers of the Company relating to bank accounts and the grant of authority to such persons as the Purchaser may nominate to operate the same;
(n) that all books, records and files of the Company are in its possession or under its control and where any such are not at the Properties that the Purchaser is given details of their whereabouts and any necessary authority to collect them;
(o) the delivery to the Purchaser of duly completed and executed transfers of all shares in the capital of Firstpoint Services Limited not registered in the name of the Company, the statutory books and common seal (if any) of Firstpoint Services Limited and certificates for all of the issued shares in Firstpoint Services Limited7.
4.3 Immediately following fulfilment of all the matters referred to in Clause 4.2 the Purchaser shall:
(a) procure that that part of the Consideration payable in cash on Completion is paid by bankers draft to the Vendor's Solicitors (who are hereby irrevocably authorised to receive that consideration) on behalf of the Vendor;
(b) deliver to the Vendor's Solicitors a counterpart of the Tax Covenant duly executed by the Purchaser;
(c) if requested, and at the Vendor's cost, deliver to the Vendor's Solicitors a legal opinion in a form reasonably satisfactory to the Vendor as to the validity and enforceability of the guarantee contained within Clause 11 of this Agreement and if such opinion is that such guarantee is not valid and enforceable such amendments shall be made to the guarantee as render it valid and enforceable; and
(d) as agent for the Company, repay the Inter-Company Debt by bankers draft to the Vendor's Solicitors (who are hereby irrevocably authorised to receive that payment) on behalf of the Vendor and its subsidiaries and Associates. The delivery of a bankers draft to the Vendor's Solicitors shall be a full and sufficient discharge to the Purchaser for the monies payable on Completion and the Purchaser shall not be concerned to see to the application of any payment by the Purchaser under this Clause 4.3.
4.4 If all the provisions of Clause 4.2 are not complied with in full on Completion the Purchaser may:
(a) defer Completion to a date not more than 28 days after the date specified in Clause 4.1 in which event the provisions of this Clause 4.4 shall apply to Completion as so deferred; or
(b) proceed to Completion so far as practicable without prejudice to its rights under this Agreement or otherwise and so that any provision of Clause 4.2 which may not have been complied with at Completion shall at the sole discretion of the Purchaser be held over to such future date or dates as the Purchaser may in its sole discretion determine; or
(c) terminate this Agreement (save for Clauses 12, 13, 14 and 20, which shall remain in full force and effect) provided that such termination shall not affect the rights and obligations of the parties which have accrued prior to termination and shall not limit or exclude any other rights or remedies of the Purchaser in respect of any failure by the Vendor to comply with the requirements of Clause 4.2 on the due date.
4.5 The Vendor shall use all reasonable endeavours to procure compliance with the provisions of Clause 4.2 on any date set for Completion in accordance with this Agreement.
4.6 The Vendor undertakes to and covenants with the Purchaser (for itself and as trustee for the Company) that if, after Completion, it is discovered that the Company had on or before Completion given or undertaken any guarantees, indemnities or similar securities in respect of the obligations or liabilities of any person other than the Company and such guarantees, indemnities or similar securities were not finally and unconditionally released on or before Completion, the Vendor will fully indemnify the Purchaser and the Company and keep each of them fully indemnified on demand against all claims, demands, actions, proceedings, damages, losses, costs, expenses or liabilities suffered or incurred by the Purchaser or the Company under or in connection with such guarantees, indemnities or similar obligations.
Appears in 1 contract
Sources: Agreement for the Sale of Shares (Nhancement Technologies Inc)
Completion. 4.1 Subject to the fulfilment of the conditions set out in Clause 2(A), Completion shall take place at 4:00 pm on the offices Completion Date at the principal place of business of the Purchaser's Solicitors immediately following the signing of this Agreement Company in Hong Kong (or at such other time and/or at such other place to be agreed between the Company and the Placing Agent in writing) when all (but, not part only) of the following business shall be transacted:
(i) the Placing Agent shall effect payment to the Company (and the Company should have received in full of such payment) of an amount equal to the Placing Price multiplied by the number of the Placing Shares successfully placed by the Placing Agent payable in Hong Kong dollars to the Company for the aggregate number of Placing Shares so subscribed less the amounts deducted by the Placing Agent under Clause 6(A);
(ii) the Company shall allot and issue the Placing Shares in accordance with the details delivered by the Placing Agent as stipulated in Clause 3(E) and shall register without registration fee all such Placees or time their respective nominees (as the Vendor case may be) as members of the Company and deliver or cause to be delivered to the Purchaser may agree.
4.2 At Completion Placing Agent the Vendor shall procurefollowing documents:
(a) the delivery to the Purchaser definitive documents of duly completed and executed transfers title in respect of the Shares by the registered holders of the Placing Shares in favour of the Purchaser persons so registered and in accordance with their respective entitlements hereto in board lots or its nominees together as they may request or deposit the same in CCASS in accordance with valid share certificates representing the Shares and all (if any) other documents required to give good title to instructions of the SharesPlacing Agent;
(b) a copy of a board resolution of the delivery Company approving and authorising the execution and completion of this Agreement and the issue and allotment of the Placing Shares to the Purchaser Placees and other transactions as contemplated under this Agreement in order to give full effect to the provisions of powers of attorney in the agreed form duly executed by the registered holders of the Shares;this Agreement; and
(c) the delivery to the Purchaser a copy of the Tax Covenant duly executed listing approval issued by the Vendor;
(d) the delivery to the Purchaser of the following, each duly executed and in form and substance satisfactory to the Purchaser:-
(i) a deed of release given in relation to the Company Guarantee;
(ii) a deed of release by each person holding or being entitled to any Encumbrance over the Shares or any of the assets of the Company;
(iii) a deed of waiver by the Vendor waiving any claim it or any of its subsidiaries or Associates may have against the Company;
(iv) deeds of waiver by each co-guarantor of the Company Stock Exchange in respect of the Company Guarantee;
(e) the delivery to the Purchaser of the statutory books (duly written up to date) and the certificate(s) of incorporation of the Company;
(f) the delivery to the Purchaser of all current cheque books and deposit books relating to all bank accounts of the Company;
(g) the delivery to the Purchaser of all documents of title relating to the Properties;
(h) the delivery to the Purchaser of copies of the minutes of the meetings of the boards of directors of the Vendor in the agreed form, authorising (in each case) the entry into of the transaction the subject of this Agreement, approving this Agreement and any other agreements or documents to be executed pursuant to or in connection with it and appointing the relevant signatory to sign this Agreement and such other agreements and documents on their behalf certified by the company secretary of the Vendor together with (in each case) confirmation, in the agreed form, from the company secretary that the authority conferred remains valid at Completion;
(i) the passing of effective resolutions of the Directors resolving to register the transfers of the Shares subject only to stamping of the share transfers;
(j) (at the cost of the Vendor) the convening and holding of all such meetings, the passing of all such resolutions, the execution and delivery of all such documents and the taking of all other action to the extent reasonably necessary in order to complete the transfer of title to the Shares to the Purchaser free from all Encumbrances and to enable the Purchaser to exercise and receive all rights and benefits attaching to or arising from the Placing Shares;
(k) with effect from Completion, the appointment as directors and secretary of the Company of such person or persons as the Purchaser shall have nominated and the resignation of each of the Directors (except ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ and ▇▇▇▇ ▇▇▇▇▇) and the secretary of the Company by delivery of a letter under seal from each such Director and the secretary resigning from his offices and from any employment he may have with the Company with effect from Completion and acknowledging that he has no claim against the Company either actual or contingent in respect of any cause matter or thing (statutory or otherwise);
(l) the resignation of the auditors of the Company (without compensation for loss of office or any other claim save for proper professional fees for services rendered in respect of their duties as auditors prior to the completion of the 1997 Audit) with effect from completion of the 1997 Audit and the delivery of a statement by them that there are no circumstances connected with their ceasing to hold office which they consider should be brought to the attention of the members or creditors of the Company;
(m) revocation of all existing authorities to the bankers of the Company relating to bank accounts and the grant of authority to such persons as the Purchaser may nominate to operate the same;
(n) that all books, records and files of the Company are in its possession or under its control and where any such are not at the Properties that the Purchaser is given details of their whereabouts and any necessary authority to collect them;
(o) the delivery to the Purchaser of duly completed and executed transfers of all shares in the capital of Firstpoint Services Limited not registered in the name of the Company, the statutory books and common seal (if any) of Firstpoint Services Limited and certificates for all of the issued shares in Firstpoint Services Limited.
4.3 Immediately following fulfilment of all the matters referred to in Clause 4.2 the Purchaser shall:
(a) procure that that part of the Consideration payable in cash on Completion is paid by bankers draft to the Vendor's Solicitors (who are hereby irrevocably authorised to receive that consideration) on behalf of the Vendor;
(b) deliver to the Vendor's Solicitors a counterpart of the Tax Covenant duly executed by the Purchaser;
(c) if requested, and at the Vendor's cost, deliver to the Vendor's Solicitors a legal opinion in a form reasonably satisfactory to the Vendor as to the validity and enforceability of the guarantee contained within Clause 11 of this Agreement and if such opinion is that such guarantee is not valid and enforceable such amendments shall be made to the guarantee as render it valid and enforceable; and
(d) as agent for the Company, repay the Inter-Company Debt by bankers draft to the Vendor's Solicitors (who are hereby irrevocably authorised to receive that payment) on behalf of the Vendor and its subsidiaries and Associates. The delivery of a bankers draft to the Vendor's Solicitors shall be a full and sufficient discharge to the Purchaser for the monies payable on Completion and the Purchaser shall not be concerned to see to the application of any payment by the Purchaser under this Clause 4.3.
4.4 If all the provisions of Clause 4.2 are not complied with in full on Completion the Purchaser may:
(a) defer Completion to a date not more than 28 days after the date specified in Clause 4.1 in which event the provisions of this Clause 4.4 shall apply to Completion as so deferred; or
(b) proceed to Completion so far as practicable without prejudice to its rights under this Agreement or otherwise and so that any provision of Clause 4.2 which may not have been complied with at Completion shall at the sole discretion of the Purchaser be held over to such future date or dates as the Purchaser may in its sole discretion determine; or
(c) terminate this Agreement (save for Clauses 12, 13, 14 and 20, which shall remain in full force and effect) provided that such termination shall not affect the rights and obligations of the parties which have accrued prior to termination and shall not limit or exclude any other rights or remedies of the Purchaser in respect of any failure by the Vendor to comply with the requirements of Clause 4.2 on the due date.
4.5 The Vendor shall use all reasonable endeavours to procure compliance with the provisions of Clause 4.2 on any date set for Completion in accordance with this Agreement.
4.6 The Vendor undertakes to and covenants with the Purchaser (for itself and as trustee for the Company) that if, after Completion, it is discovered that the Company had on or before Completion given or undertaken any guarantees, indemnities or similar securities in respect of the obligations or liabilities of any person other than the Company and such guarantees, indemnities or similar securities were not finally and unconditionally released on or before Completion, the Vendor will fully indemnify the Purchaser and the Company and keep each of them fully indemnified on demand against all claims, demands, actions, proceedings, damages, losses, costs, expenses or liabilities suffered or incurred by the Purchaser or the Company under or in connection with such guarantees, indemnities or similar obligations.
Appears in 1 contract
Sources: Placing Agreement
Completion. 4.1 (A) Completion shall take place at the offices of the Purchaser's Solicitors immediately following the signing of this Agreement or Chao and ▇▇▇▇▇ at such other place or time as the Vendor and the Purchaser may agree.
4.2 At Completion the Vendor shall procure:
(a) the delivery to the Purchaser of duly completed and executed transfers of the Shares by the registered holders of the Shares in favour of the Purchaser or its nominees together with valid share certificates representing the Shares and all (if any) other documents required to give good title to the Shares;
(b) the delivery to the Purchaser of powers of attorney in the agreed form duly executed by the registered holders of the Shares;
(c) the delivery to the Purchaser of the Tax Covenant duly executed by the Vendor;
(d) the delivery to the Purchaser of the followingSuites 2601-5, each duly executed and in form and substance satisfactory to the Purchaser:-
(i) a deed of release given in relation to the Company Guarantee;
(ii) a deed of release by each person holding or being entitled to any Encumbrance over the Shares or any of the assets of the Company;
(iii) a deed of waiver by the Vendor waiving any claim it or any of its subsidiaries or Associates may have against the Company;
(iv) deeds of waiver by each co-guarantor of the Company in respect of the Company Guarantee;
(e) the delivery to the Purchaser of the statutory books (duly written up to date) and the certificate(s) of incorporation of the Company;
(f) the delivery to the Purchaser of all current cheque books and deposit books relating to all bank accounts of the Company;
(g) the delivery to the Purchaser of all documents of title relating to the Properties;
(h) the delivery to the Purchaser of copies of the minutes of the meetings of the boards of directors of the Vendor in the agreed formAsia Pacific Finance Tower, authorising (in each case) the entry into of the transaction the subject of this Agreement, approving this Agreement and any other agreements or documents to be executed pursuant to or in connection with it and appointing the relevant signatory to sign this Agreement and such other agreements and documents on their behalf certified by the company secretary of the Vendor together with (in each case) confirmation, in the agreed form, from the company secretary that the authority conferred remains valid at Completion;
(i) the passing of effective resolutions of the Directors resolving to register the transfers of the Shares subject only to stamping of the share transfers;
(j) (at the cost of the Vendor) the convening and holding of all such meetings, the passing of all such resolutions, the execution and delivery of all such documents and the taking of all other action to the extent reasonably necessary in order to complete the transfer of title to the Shares to the Purchaser free from all Encumbrances and to enable the Purchaser to exercise and receive all rights and benefits attaching to or arising from the Shares;
(k) with effect from Completion, the appointment as directors and secretary of the Company of such person or persons as the Purchaser shall have nominated and the resignation of each of the Directors (except ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇ ▇▇▇▇ on the second Business Day (or such other day as the Company, SAI and the Investors may agree) following the last to occur (i) completion of the Sale; (ii) receipt by the Investors from the Escrow Agent of the Completion Amount pursuant to the Escrow Letter; and (iii) release of the Release by the Escrow Agent pursuant to the Escrow Letter.
(B) At Completion, the following transactions shall take place:-
(1) the Company shall:-
(i) deliver to the Investors a certified copy of the board resolution of the Company approving and authorising execution and completion of this Agreement and resolving to effect and do all that is necessary to give effect to this Agreement;
(ii) deliver to the Investors a certified copy of the board resolution of SAI approving and authorising execution and completion of this Agreement and resolving to effect and do all that is necessary to give effect to this Agreement and the Guarantee;
(iii) deliver to the Investors a certified copy of the board resolution of CIBHL approving and authorising the execution and completion of this Agreement and resolving to effect and do all that is necessary to give effect to this Agreement and the Guarantee;
(iv) deliver to the Investors a certified copy of the board resolution of ACL approving and authorising the execution and completion of this Agreement and resolving to effect and do all that is necessary to give effect to this Agreement and the ACL Undertaking;
(v) deliver to the Investors a certified copy of the board resolution of SIHL approving and authorising the execution and completion of this Agreement and resolving to effect and do all that is necessary to give effect to this Agreement; and
(vi) deliver evidence satisfactory to the Investors that the Company has effected payment by cashier order to Chao and ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ and ▇▇▇▇ ▇▇▇▇▇) and the secretary of the Company by delivery of a letter under seal from each such Director and the secretary resigning from his offices and from any employment he may have with the Company with effect from Completion and acknowledging that he has no claim against the Company either actual or contingent in respect of any cause matter or thing (statutory or otherwise);
(l) the resignation of the auditors of the Company (without compensation for loss of office or any other claim save for proper professional fees for services rendered in respect of their duties as auditors prior to the completion of the 1997 Audit) with effect from completion of the 1997 Audit and the delivery of a statement by them that there are no circumstances connected with their ceasing to hold office which they consider should be brought to the attention of the members or creditors of the Company;
(m) revocation of all existing authorities to the bankers of the Company relating to bank accounts and the grant of authority to such persons as the Purchaser may nominate to operate the same;
(n) that all books, records and files of the Company are in its possession or under its control and where any such are not at the Properties that the Purchaser is given details of their whereabouts and any necessary authority to collect them;
(o) the delivery to the Purchaser of duly completed and executed transfers of all shares in the capital of Firstpoint Services Limited not registered in the name of the Company, the statutory books and common seal (if any) of Firstpoint Services Limited and certificates for all of the issued shares in Firstpoint Services Limited.
4.3 Immediately following fulfilment of all the matters costs and expenses referred to in Clause 4.2 6 hereof, the Purchaser shall:
(a) procure that that part amount of the Consideration payable in cash on Completion is paid by bankers draft which shall be notified to the Vendor's Solicitors (who are hereby irrevocably authorised Company by the Investors prior to receive that consideration) on behalf of the VendorCompletion;
(b2) ERL shall execute and deliver to Brilliant Future Holdings Limited the Vendor's Solicitors a counterpart New Share Mortgage and the board resolution of ERL approving and authorising the Tax Covenant duly executed by the Purchaser;
(c) if requested, execution and at the Vendor's cost, deliver to the Vendor's Solicitors a legal opinion in a form reasonably satisfactory to the Vendor as to the validity and enforceability of the guarantee contained within Clause 11 completion of this Agreement and if such opinion the New Share Charge and resolving to effect and do all that is that such guarantee is not valid necessary to give effect to this Agreement and enforceable such amendments shall be made to the guarantee as render it valid and enforceableNew Share Charge; and
(dC) as agent for All the Company, repay the Inter-Company Debt by bankers draft events which are to the Vendor's Solicitors (who are hereby irrevocably authorised to receive that payment) on behalf of the Vendor and its subsidiaries and Associates. The delivery of a bankers draft to the Vendor's Solicitors shall be a full and sufficient discharge to the Purchaser for the monies payable on Completion and the Purchaser shall not be concerned to see to the application of any payment by the Purchaser under this Clause 4.3.
4.4 If all the provisions of Clause 4.2 are not complied with in full on Completion the Purchaser may:
(a) defer Completion to a date not more than 28 days after the date specified in Clause 4.1 in which event the provisions of this Clause 4.4 shall apply to Completion as so deferred; or
(b) proceed to Completion so far as practicable without prejudice to its rights under this Agreement or otherwise and so that any provision of Clause 4.2 which may not have been complied with take place at Completion shall at take place simultaneously and no party shall be obliged to complete this Agreement unless the sole discretion other parties simultaneously comply with their respective obligations contained in sub-clause (B) of the Purchaser be held over to such future date or dates as the Purchaser may in its sole discretion determine; orthis clause.
(cD) terminate this Agreement (save for Clauses 12For the avoidance of doubt, 13, 14 and 20, which shall remain in full force and effect) provided that such termination shall not affect the rights and continuing obligations of the parties which have accrued prior to termination and Sunbase Parties under the Settlement Agreement shall not limit or exclude any cease as a result of Completion other rights or remedies than for SPC, whose continuing obligations under the Settlement Agreement are released by the operation and effect of the Purchaser in respect of any failure by the Vendor to comply with the requirements of Clause 4.2 on the due date.
4.5 The Vendor shall use all reasonable endeavours to procure compliance with the provisions of Clause 4.2 on any date set for Completion in accordance with this Agreement.
4.6 The Vendor undertakes to and covenants with the Purchaser (for itself and as trustee for the Company) that if, Release after Completion, it is discovered that the Company had on or before Completion given or undertaken any guarantees, indemnities or similar securities in respect of the obligations or liabilities of any person other than the Company and such guarantees, indemnities or similar securities were not finally and unconditionally released on or before Completion, the Vendor will fully indemnify the Purchaser and the Company and keep each of them fully indemnified on demand against all claims, demands, actions, proceedings, damages, losses, costs, expenses or liabilities suffered or incurred by the Purchaser or the Company under or in connection with such guarantees, indemnities or similar obligations.
Appears in 1 contract
Completion. 4.1 Completion shall take place at the offices registered office of the Purchaser's Solicitors immediately following the signing of this Agreement Seller (or at such other place or time location as the Vendor Seller and Buyer shall agree) on the Purchaser may agree.
4.2 At Completion Date immediately after the Vendor execution of this agreement. On Completion, the Seller shall procure:
(a) the delivery deliver to the Purchaser of duly completed and executed Buyer: transfers of in common form relating to all the Shares by the registered holders of the Shares duly executed in favour of the Purchaser Buyer (or its nominees together with valid as it may direct); share certificates representing the Shares and all (if any) other documents required to give good title relating to the Shares;
(b) the delivery to the Purchaser of powers of attorney ; resignations in the agreed form Agreed Form duly executed by the registered holders of the Shares;
(c) the delivery to the Purchaser of the Tax Covenant duly executed by the Vendor;
(d) the delivery to the Purchaser of the following, each duly executed and in form and substance satisfactory to the Purchaser:-
(i) a deed of release given in relation to the Company Guarantee;
(ii) a deed of release by each person holding or being entitled to any Encumbrance over the Shares or any of the assets of the Company;
(iii) a deed of waiver by the Vendor waiving any claim it or any of its subsidiaries or Associates may have against the Company;
(iv) as deeds of waiver by each co-guarantor of the Company in respect of the Company Guarantee;
(e) the delivery to the Purchaser of the statutory books (duly written up to date) and the certificate(s) of incorporation of the Company;
(f) the delivery to the Purchaser of all current cheque books and deposit books relating to all bank accounts of the Company;
(g) the delivery to the Purchaser of all documents of title relating to the Properties;
(h) the delivery to the Purchaser of copies of the minutes of the meetings of the boards of directors of the Vendor in the agreed form, authorising (in each case) the entry into of the transaction the subject of this Agreement, approving this Agreement and any other agreements or documents to be executed pursuant to or in connection with it and appointing the relevant signatory to sign this Agreement and such other agreements and documents on their behalf certified by the company secretary of the Vendor together with (in each case) confirmation, in the agreed form, from the company secretary that the authority conferred remains valid at Completion;
(i) the passing of effective resolutions of the Directors resolving to register the transfers of the Shares subject only to stamping of the share transfers;
(j) (at the cost of the Vendor) the convening and holding of all such meetings, the passing of all such resolutions, the execution and delivery of all such documents and the taking of all other action to the extent reasonably necessary in order to complete the transfer of title to the Shares to the Purchaser free from all Encumbrances and to enable the Purchaser to exercise and receive all rights and benefits attaching to or arising from the Shares;
(k) with effect from Completion, the appointment as directors and secretary of the Company of such person or persons as the Purchaser shall have nominated and the resignation of each of the Directors (except ▇▇. ▇▇▇▇ ▇. King and Mr R. ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, being all the directors of ▇▇▇▇▇▇ from their offices as director and containing a confirmation that they have no claims (whether statutory, contractual or otherwise) against ▇▇▇▇▇▇ for compensation for loss of office or termination of employment or for unpaid remuneration or otherwise together with delivery to the Buyer of all property of ▇▇▇▇▇▇ in their possession or under their control; the common seals, certificates of incorporation and statutory books, share certificate books and cheque books of ▇▇▇▇▇▇; the Tax Deed duly executed by the Seller; to the extent not in the possession of ▇▇▇▇▇▇, all books of account or references as to customers and/or suppliers and other records and all insurance policies in any way relating to or concerning the businesses of ▇▇▇▇▇▇; to the extent not in the possession of ▇▇▇▇▇▇, all licences, consents, permits and authorisations obtained by or issued to ▇▇▇▇▇▇ or any other person in connection with the Business; written confirmation, in a form satisfactory to the Buyer, from the Seller that there are no liabilities whatsoever (actual or contingent) which may be owing from ▇▇▇▇▇▇ to the Seller's Group except those arising in the ordinary course of trade; At or prior to Completion (and prior to the taking effect of the resignations of the directors referred to in clause 4.2(c) above) the Seller shall procure the passing of board resolutions of ▇▇▇▇▇▇: sanctioning for registration (subject where necessary to due stamping) the transfers in respect of the Shares; authorising the delivery to the Buyer of share certificates in respect of the Shares; appointing ▇▇. ▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇▇ ▇▇▇▇ to be the directors of ▇▇▇▇▇▇; revoking any existing mandates to bankers and giving authority in favour of the directors appointed under clause 4.3(c) above or such other persons as the Buyer may nominate to operate the bank accounts thereof; and resolving that the registered office of ▇▇▇▇▇▇ be changed to ▇▇▇▇▇ ▇-▇, ▇▇▇▇▇▇ ▇▇▇▇▇) and the secretary of the Company by delivery of a letter under seal from each such Director and the secretary resigning from his offices and from any employment he may have with the Company with effect from Completion and acknowledging ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇. The Seller shall procure that he has no claim against the Company either actual or contingent in respect of any cause matter or thing (statutory or otherwise);
(l) the resignation of the auditors of the Company (without compensation for loss of office or any other claim save for proper professional fees for services rendered in respect of their duties as auditors prior to the completion of the 1997 Audit) with effect from completion of the 1997 Audit and the delivery of a statement by them that at Completion: there are no circumstances connected with their ceasing to hold office which they consider should be brought to the attention of the members or creditors of the Company;
(m) revocation of repaid all existing authorities to the bankers of the Company relating to bank accounts and the grant of authority to such persons as the Purchaser may nominate to operate the same;
(n) that all books, records and files of the Company are in its possession or under its control and where any such are not at the Properties that the Purchaser is given details of their whereabouts and any necessary authority to collect them;
(o) the delivery to the Purchaser of duly completed and executed transfers of all shares in the capital of Firstpoint Services Limited not registered in the name of the Company, the statutory books and common seal sums (if any) of Firstpoint Services Limited and certificates for all owing to ▇▇▇▇▇▇ by any member of the issued shares Seller's Group or by the directors of any Group Company or any of their connected persons except those arising in Firstpoint Services Limited.
the ordinary course of trade and whether or not such sums are due for repayment; and ▇▇▇▇▇▇ is released from any Encumbrance given or incurred by it which relates in whole or in part to debts or other liabilities or obligations of any person. Upon compliance by the Seller with the provisions of clauses 4.2, 4.3 Immediately following fulfilment of all and 4.4, the matters referred Buyer shall: repay to in Clause 4.2 the Purchaser shall:
(a) procure that that part Seller or any member of the Consideration payable Seller's Group which is specified by the Seller all intra-group indebtedness outstanding at Completion excepting only indebtedness arising in cash on Completion the ordinary course of trade which is paid by bankers draft to the Vendor's Solicitors (who are hereby irrevocably authorised to receive that consideration) on behalf of the Vendor;
(b) not actually due for payment at Completion; and deliver to the Vendor's Solicitors Seller a counterpart of the Tax Covenant Deed duly executed by executed. The Seller acknowledges that, immediately following Completion until such time as the Purchaser;
(ctransfer(s) if requested, and at the Vendor's cost, deliver to the Vendor's Solicitors a legal opinion in a form reasonably satisfactory to the Vendor as to the validity and enforceability of the guarantee contained within Clause 11 Shares have been registered in the register of this Agreement members of ▇▇▇▇▇▇, the Seller will hold those Shares registered in its name on trust for and if such opinion is that such guarantee is not valid and enforceable such amendments shall be made to the guarantee as render it valid and enforceable; and
(d) as agent nominee for the Company, repay the Inter-Company Debt by bankers draft Buyer or its nominees and undertakes to the Vendor's Solicitors (who are hereby irrevocably authorised to receive that payment) on behalf of the Vendor hold all dividends and its subsidiaries distributions and Associates. The delivery of a bankers draft to the Vendor's Solicitors shall be a full and sufficient discharge to the Purchaser for the monies payable on Completion and the Purchaser shall not be concerned to see to the application of any payment by the Purchaser under this Clause 4.3.
4.4 If exercise all the provisions of Clause 4.2 are not complied with in full on Completion the Purchaser may:
(a) defer Completion to a date not more than 28 days after the date specified in Clause 4.1 in which event the provisions of this Clause 4.4 shall apply to Completion as so deferred; or
(b) proceed to Completion so far as practicable without prejudice to its voting rights under this Agreement or otherwise and so that any provision of Clause 4.2 which may not have been complied with at Completion shall at the sole discretion of the Purchaser be held over to such future date or dates as the Purchaser may in its sole discretion determine; or
(c) terminate this Agreement (save for Clauses 12, 13, 14 and 20, which shall remain in full force and effect) provided that such termination shall not affect the rights and obligations of the parties which have accrued prior to termination and shall not limit or exclude any other rights or remedies of the Purchaser available in respect of any failure by the Vendor to comply with the requirements of Clause 4.2 on the due date.
4.5 The Vendor shall use all reasonable endeavours to procure compliance with the provisions of Clause 4.2 on any date set for Completion those Shares in accordance with this Agreement.
4.6 The Vendor undertakes to and covenants with the Purchaser (for itself and as trustee for the Company) that if, after Completion, it is discovered that the Company had on or before Completion given or undertaken any guarantees, indemnities or similar securities in respect directions of the obligations Buyer or liabilities its nominees and if the Seller is in breach of the undertakings contained in this clause the Seller irrevocably authorises the Buyer to appoint some person or persons to execute all instruments or proxies (including consents to short notice) or other documents which the Buyer or its nominees may reasonably require and which may be necessary to enable the Buyer or its nominees to attend and vote at general meetings of ▇▇▇▇▇▇ and to do any person other than thing or things necessary to give effect to the Company and such guarantees, indemnities or similar securities were not finally and unconditionally released on or before Completion, the Vendor will fully indemnify the Purchaser and the Company and keep each of them fully indemnified on demand against all claims, demands, actions, proceedings, damages, losses, costs, expenses or liabilities suffered or incurred by the Purchaser or the Company under or rights contained in connection with such guarantees, indemnities or similar obligationsthis clause.
Appears in 1 contract
Completion. 4.1 5.1 Completion shall take place at the offices of the Purchaser's Solicitors immediately following Seller unless otherwise agreed by the signing of this Agreement or at such other place or time Parties, on the dates set out as the Vendor and the Purchaser may agree.
4.2 At Completion the Vendor shall procurefollows:
(a) On Completion Date, the delivery to the Purchaser of duly completed and executed transfers of the Shares by the registered holders of the Shares in favour of the Purchaser or its nominees together with valid share certificates representing the Shares and all (if any) other documents required to give good title to the Shares;
(b) the delivery to the Purchaser of powers of attorney in the agreed form duly executed by the registered holders of the Shares;
(c) the delivery to the Purchaser of the Tax Covenant duly executed by the Vendor;
(d) the delivery to the Purchaser of the following, each duly executed and in form and substance satisfactory to the Purchaser:-Seller shall:
(i) a deed of release given in relation cause to be delivered to the Company GuaranteePurchaser copies of its corporate approvals referred to in clause 2(a) above;
(ii) a deed cause to be delivered to the Purchaser instruments of release by each person holding or being entitled to any Encumbrance over transfer in respect of the Shares or any duly completed in favour of the assets Purchaser; and
(iii) procure that a meeting of the board of directors of the Company is held pursuant to board resolutions of the Company to be in the agreed form by Completion dealing with all those matters required to be approved by the Company at Completion including the following:
(1) the Registered Agent is instructed to provide a certified copy of the updated register of members to the Purchaser and the Seller and such other persons as the Purchaser or the Seller may nominate; and
(2) any director of the Company is authorised to execute share certificates in the names of the Seller;
(3) the execution of the Shareholders Agreement by the Company is approved and any director of the Company is authorised to execute the Shareholders Agreement for and on behalf of the Company;
(iii4) a deed of waiver by any changes to the Vendor waiving any claim it or any of its subsidiaries or Associates may have against the Company;
directors and officers (ivas appropriate) deeds of waiver by each co-guarantor of the Company in respect as required by the Shareholders Agreement are approved and the Registered Agent is authorised and instructed to update the Company’s registers of directors and officers (as appropriate) to reflect such changes and deliver copies of the Company Guarantee;
(e) same to the delivery Seller and to the Purchaser of the statutory books (duly written up and consents from relevant so appointed directors to date) act and the certificate(s) of incorporation of the Company;
(f) the delivery to the Purchaser of all current cheque books and deposit books relating to all bank accounts of the Company;
(g) the delivery to the Purchaser of all documents of title relating to the Properties;
(h) the delivery to the Purchaser of copies of the minutes of the meetings of the boards of directors of the Vendor relevant directors’ resignation letters shall be produced in the agreed form, authorising (. unless in each case) the entry into of the transaction the subject of this Agreement, approving this Agreement and any other agreements or documents to be executed pursuant to or in connection with it and appointing the relevant signatory to sign this Agreement and such other agreements and documents on their behalf certified by the company secretary of the Vendor together with (in each case) confirmation, in the agreed form, from the company secretary that the authority conferred remains valid at Completion;
(i) the passing of effective resolutions of the Directors resolving to register the transfers of the Shares subject only to stamping of the share transfers;
(j) (at the cost of the Vendor) the convening and holding of all such meetings, the passing of all such resolutions, the execution and delivery of all such documents and the taking of all other action to the extent reasonably necessary in order to complete the transfer of title to the Shares to the Purchaser free from all Encumbrances and to enable the Purchaser to exercise and receive all rights and benefits attaching to or arising from the Shares;
(k) with effect from Completion, the appointment as directors and secretary of the Company of such person or persons as the Purchaser shall have nominated and the resignation of each of the Directors (except ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ and ▇▇▇▇ ▇▇▇▇▇) and the secretary of the Company by delivery of a letter under seal from each such Director and the secretary resigning from his offices and from any employment he may have with the Company with effect from Completion and acknowledging that he has no claim against the Company either actual or contingent in respect of any cause matter or thing (statutory or otherwise);
(l) the resignation of the auditors of the Company (without compensation for loss of office or any other claim save for proper professional fees for services rendered in respect of their duties as auditors prior to the completion of the 1997 Audit) with effect from completion of the 1997 Audit and the delivery of a statement by them that there are no circumstances connected with their ceasing to hold office which they consider should be brought to the attention of the members or creditors of the Company;
(m) revocation of all existing authorities to the bankers of the Company relating to bank accounts and the grant of authority to such persons as the Purchaser may nominate to operate the same;
(n) that all books, records and files of the Company are in its possession or under its control and where any such are not at the Properties that the Purchaser is given details of their whereabouts and any necessary authority to collect them;
(o) the delivery to the Purchaser of duly completed and executed transfers of all shares in the capital of Firstpoint Services Limited not registered in the name of the Company, the statutory books and common seal (if any) of Firstpoint Services Limited and certificates for all of the issued shares in Firstpoint Services Limited.
4.3 Immediately following fulfilment of all the matters referred to in Clause 4.2 the Purchaser shall:
(a) procure that that part of the Consideration payable in cash on Completion is paid by bankers draft to the Vendor's Solicitors (who are hereby irrevocably authorised to receive that consideration) on behalf of the Vendor;
(b) deliver to the Vendor's Solicitors a counterpart of the Tax Covenant duly executed case waived by the Purchaser;
(cb) Within fifteen Business Days after the Completion Date (or if requestedsuch day is not a Business Day, and at the Vendor's costnext Business Day), deliver the Purchaser shall, following compliance by the Seller with the provisions of clause 5.1(a) above:
(i) cause to be delivered to the Vendor's Solicitors a legal opinion Seller copies of its corporate approvals referred to in a form reasonably satisfactory clause 2(a) above;
(ii) pay the Purchase Price into the account of the Seller, details of which must have been notified to the Vendor as to Purchaser, by electronic transfer of funds for same day value; unless in either case waived by the validity and enforceability of the guarantee contained within Clause 11 of this Agreement and if such opinion is that such guarantee is not valid and enforceable such amendments shall be made to the guarantee as render it valid and enforceableSeller; and
(dc) as agent for On Completion Date, the CompanySeller, repay the Inter-Company Debt by bankers draft to the Vendor's Solicitors (who are hereby irrevocably authorised to receive that payment) on behalf of the Vendor and its subsidiaries and Associates. The delivery of a bankers draft to the Vendor's Solicitors shall be a full and sufficient discharge to the Purchaser for the monies payable on Completion second investor and the Purchaser shall not be concerned to see to execute the application of any payment by the Purchaser under this Clause 4.3.
4.4 If all the provisions of Clause 4.2 are not complied with in full on Completion the Purchaser may:
(a) defer Completion to a date not more than 28 days after the date specified in Clause 4.1 in which event the provisions of this Clause 4.4 shall apply to Completion as so deferred; or
(b) proceed to Completion so far as practicable without prejudice to its rights under this Agreement or otherwise and so that any provision of Clause 4.2 which may not have been complied with at Completion shall at the sole discretion of the Purchaser be held over to such future date or dates as the Purchaser may in its sole discretion determine; or
(c) terminate this Agreement (save for Clauses 12, 13, 14 and 20, which shall remain in full force and effect) provided that such termination shall not affect the rights and obligations of the parties which have accrued prior to termination and shall not limit or exclude any other rights or remedies of the Purchaser in respect of any failure by the Vendor to comply with the requirements of Clause 4.2 on the due date.
4.5 The Vendor shall use all reasonable endeavours to procure compliance with the provisions of Clause 4.2 on any date set for Completion in accordance with this Shareholders Agreement.
4.6 The Vendor undertakes to and covenants with the Purchaser (for itself and as trustee for the Company) that if, after Completion, it is discovered that the Company had on or before Completion given or undertaken any guarantees, indemnities or similar securities in respect of the obligations or liabilities of any person other than the Company and such guarantees, indemnities or similar securities were not finally and unconditionally released on or before Completion, the Vendor will fully indemnify the Purchaser and the Company and keep each of them fully indemnified on demand against all claims, demands, actions, proceedings, damages, losses, costs, expenses or liabilities suffered or incurred by the Purchaser or the Company under or in connection with such guarantees, indemnities or similar obligations.
Appears in 1 contract
Sources: Sale and Purchase Agreement (Alfa Telecom Turkey LTD)
Completion. 4.1 (1) Completion shall take place at the offices of of. ACL Asia Ltd., Two ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇ immediately after the Purchaser's Solicitors immediately following the signing signature of this Agreement or at such other place or time as agreement
(2) At completion the Vendor and the Purchaser may agree.
4.2 At Completion the Vendor Seller shall procure:
(a) the delivery to the Purchaser of of:
(i) duly completed and executed transfers of the Shares by the registered holders of the Shares and bought and sold notes in favour of the Purchaser or its nominees together with valid share certificates representing nominee(s) of all the Brewing Shares and all (if any) other documents required to give good title to the SCB Shares;
(b) the delivery to the Purchaser of powers of attorney in the agreed form duly executed by the registered holders of the Shares;
(c) the delivery to the Purchaser of the Tax Covenant duly executed by the Vendor;
(d) the delivery to the Purchaser of the following, each duly executed and in form and substance satisfactory to the Purchaser:-
(i) a deed of release given in relation to the Company Guarantee;
(ii) the share certificates representing the Brewing Shares and SCB Shares (or an express indemnity in a deed form satisfactory to the purchaser in the case of release by each person holding or being entitled any found to any Encumbrance over the Shares or any of the assets of the Companybe missing);
(iii) a deed the certificate of waiver by the Vendor waiving any claim it or any incorporation, common seal, minute books, statutory registers and share certificate books of its subsidiaries or Associates may have against the CompanyBrewing and SCB;
(iv) deeds of waiver by each co-guarantor of the Company in respect of the Company Guarantee;
(e) the delivery to the Purchaser of the statutory books (duly written up to date) and the certificate(s) of incorporation of the Company;
(f) the delivery to the Purchaser resignations of all current cheque books and deposit books relating to all bank accounts of the Company;
(g) the delivery to the Purchaser of all documents of title relating to the Properties;
(h) the delivery to the Purchaser of copies of the minutes of the meetings of the boards of directors of the Vendor in the agreed form, authorising (in each case) the entry into of the transaction the subject of this Agreement, approving this Agreement and any other agreements or documents to be executed pursuant to or in connection with it and appointing the relevant signatory to sign this Agreement and such other agreements and documents on their behalf certified by the company secretary of the Vendor together with (in each case) confirmation, in the agreed form, from the company secretary that the authority conferred remains valid at Completion;
(i) the passing of effective resolutions of the Directors resolving to register the transfers of the Shares subject only to stamping of the share transfers;
(j) (at the cost of the Vendor) the convening and holding of all such meetings, the passing of all such resolutions, the execution and delivery of all such documents and the taking of all other action to the extent reasonably necessary in order to complete the transfer of title to the Shares to the Purchaser free from all Encumbrances and to enable the Purchaser to exercise and receive all rights and benefits attaching to or arising from the Shares;
(k) with effect from Completion, the appointment as directors and secretary of the Company of such person or persons as the Purchaser shall have nominated and the resignation of each of the Directors (except ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ and ▇▇▇▇ ▇▇▇▇▇) and the secretary of the Company by delivery of a letter Brewing and SCB, in each case acknowledging under seal from each such Director and the secretary resigning from his offices and from any employment he may have with the Company with effect from Completion and acknowledging that he has no claim against the Company either actual Brewing or contingent in respect of any cause matter or thing (statutory or otherwise);
(l) the resignation of the auditors of the Company (without compensation SCB whether for loss of office or any other claim save for proper professional fees for services rendered in respect of their duties as auditors prior to the completion of the 1997 Audit) with effect from completion of the 1997 Audit and the delivery of a statement by them that there are no circumstances connected with their ceasing to hold office which they consider should be brought to the attention of the members or creditors of the Companyotherwise;
(mv) revocation execution copies of all existing authorities the Distribution Agreements duly executed by the seller;
(vi) an execution copy of the Options Agreement duly signed by the Seller;
(vii) confirmation from the landlord of the Premises, in a form acceptable to the bankers Purchaser, that the existing tenancy shall remain in place following change of ownership of Brewing and SCB;
(viii) new contracts of employment, on terms approved by the Purchaser, that have been entered into with the senior management (as defined by the parties) Brewing and SCB; and
(ix) confirmation that all sums have been paid in relation to the balance of the Company relating to bank accounts purchase price and shipping cost of the grant bottler, labeler and pasteurizer and a shipping date has been agreed.
(b) that a Board Meeting of authority to Brewing and SCB is held at which it is resolved that:
(i) such persons as the Purchaser may nominate to operate nominates are appointed as additional directors and the samesecretary of Brewing and SCB;
(nii) that all books, records the transfers referred to in paragraph (a) are approved for registration; and
(iii) Brewing's and files SCB's bank mandates are revised in such manner as the Purchaser requires.
(c) an acknowledgment of the Company are in its possession or under its control and where any such are not at assignment of the Properties that the Purchaser is given details of their whereabouts and any necessary authority to collect them;
(o) the delivery Shareholders's Loans to the Purchaser of duly completed signed by Brewing and executed transfers of all shares in the capital of Firstpoint Services Limited not registered in the name of the Company, the statutory books and common seal (if any) of Firstpoint Services Limited and certificates for all of the issued shares in Firstpoint Services LimitedSCB.
4.3 Immediately following fulfilment (3) Upon Completion of all the matters referred to in Clause 4.2 subclause (2) the Purchaser shall:
(a) procure that that part of the Consideration payable in cash on Completion is paid by bankers draft to the Vendor's Solicitors (who are hereby irrevocably authorised to receive that consideration) on behalf of the Vendor;
(b) shall deliver to the Vendor's Solicitors a counterpart Seller by with transfer the consideration for the sale of the Tax Covenant duly Brewing Shares and SCB Shares and the assignment of the Shareholder's Loans pursuant to clause 3 hereof.
(4) Upon Completion, the Shareholder's Loans shall be deemed to have been assigned hereby without any further act or document to be done or executed by the Purchaser;Seller.
(c5) If the transfers and the bought and sold notes are signed in Hong Kong and within thirty days if requestedthey are signed outwith Hong Kong, and at the Vendor's cost, deliver to the Vendor's Solicitors a legal opinion in a form reasonably satisfactory to the Vendor as to the validity and enforceability of the guarantee contained within Clause 11 of this Agreement and if such opinion is that such guarantee is not valid and enforceable such amendments shall be made to the guarantee as render it valid and enforceable; and
(d) as agent for the Company, repay the Inter-Company Debt by bankers draft to the Vendor's Solicitors (who are hereby irrevocably authorised to receive that payment) on behalf of the Vendor and its subsidiaries and Associates. The delivery of a bankers draft to the Vendor's Solicitors shall be a full and sufficient discharge to the Purchaser for the monies payable on Completion and the Purchaser shall not proceed with stamping the Brewing Shares and the SCB Shares. The stamp duty shall be concerned to see to the application of any payment borne equally by the Purchaser under this Clause 4.3.parties and the sum of US$1,000 shall be withheld from the sum payable as consideration pursuant to clause 3 in respect thereof
4.4 (6) If all for any reason the provisions of Clause 4.2 subclause (2) are not finally complied with in full on as at the date of Completion the Purchaser may:
may elect (a) defer Completion to a date not more than 28 days after the date specified in Clause 4.1 in which event the provisions of this Clause 4.4 shall apply to Completion as so deferred; or
(b) proceed to Completion so far as practicable addition and without prejudice to its rights under this Agreement or otherwise and so that any provision of Clause 4.2 which may not have been complied with at Completion shall at the sole discretion of the Purchaser be held over to such future date or dates as the Purchaser may in its sole discretion determine; or
(c) terminate this Agreement (save for Clauses 12, 13, 14 and 20, which shall remain in full force and effect) provided that such termination shall not affect the rights and obligations of the parties which have accrued prior to termination and shall not limit or exclude any all other rights or remedies available to it) to rescind this agreement or to fix a new date for Completion.
(7) The parties hereby agree that the bottling and labeling line currently ordered will be paid for and shipped by the Seller to the purchaser in Hong Kong. The Purchaser shall be responsible for installation and commissioning, and it is agreed that the consideration in clause 3 shall be reduced by US$5,000 upon release of the Purchaser in respect of any failure by the Vendor to comply with the requirements of Clause 4.2 on the due datefinal payment under clause 3 (b) (1).
4.5 The Vendor shall use all reasonable endeavours to procure compliance with the provisions of Clause 4.2 on any date set for Completion in accordance with this Agreement.
4.6 The Vendor undertakes to and covenants with the Purchaser (for itself and as trustee for the Company) that if, after Completion, it is discovered that the Company had on or before Completion given or undertaken any guarantees, indemnities or similar securities in respect of the obligations or liabilities of any person other than the Company and such guarantees, indemnities or similar securities were not finally and unconditionally released on or before Completion, the Vendor will fully indemnify the Purchaser and the Company and keep each of them fully indemnified on demand against all claims, demands, actions, proceedings, damages, losses, costs, expenses or liabilities suffered or incurred by the Purchaser or the Company under or in connection with such guarantees, indemnities or similar obligations.
Appears in 1 contract
Sources: Agreement for the Sale and Purchase of Shares (American Craft Brewing International LTD)
Completion. 4.1 Completion shall take place at the Company’s offices of on the Purchaser's Solicitors immediately following the signing of this Agreement or at such other place or time as the Vendor and the Purchaser may agreeCompletion Date.
4.2 At On Completion the Vendor shall procure:deliver to or, if the Purchaser shall so agree, make available to the Purchaser:-
(a) transfers in the delivery agreed form relating to the Purchaser of duly completed and executed transfers of all the Shares by and the registered holders of the Shares Venture Loans duly executed in favour of the Purchaser or its nominees together with valid share certificates representing the Shares and all (if any) other documents required to give good title to the Sharesbefore a Notary Public;
(b) the delivery to the Purchaser of powers of attorney in the agreed form duly executed by the registered holders original of the Shares;
(c) the delivery to the Purchaser of the Tax Covenant duly transfer deed executed by the Vendor;
(d) the delivery to the Purchaser of the following, each duly executed and in form and substance satisfactory to the Purchaser:-
(i) a deed of release given in relation to the Company Guarantee;
(ii) a deed of release by each person holding or being entitled to any Encumbrance over the Shares or any of the assets of the Company;
(iii) a deed of waiver by the Vendor waiving any claim it or any of its subsidiaries or Associates may have against the Company;
(iv) deeds of waiver by each coon 31 December 1998 before Spanish Notary Public ▇▇▇▇▇-guarantor of the Company in respect of the Company Guarantee;
(e) the delivery to the Purchaser of the statutory books (duly written up to date) and the certificate(s) of incorporation of the Company;
(f) the delivery to the Purchaser of all current cheque books and deposit books relating to all bank accounts of the Company;
(g) the delivery to the Purchaser of all documents of title relating to the Properties;
(h) the delivery to the Purchaser of copies of the minutes of the meetings of the boards of directors of the Vendor in the agreed form, authorising (in each case) the entry into of the transaction the subject of this Agreement, approving this Agreement and any other agreements or documents to be executed pursuant to or in connection with it and appointing the relevant signatory to sign this Agreement and such other agreements and documents on their behalf certified by the company secretary of the Vendor together with (in each case) confirmation, in the agreed form, from the company secretary that the authority conferred remains valid at Completion;
(i) the passing of effective resolutions of the Directors resolving to register the transfers of the Shares subject only to stamping of the share transfers;
(j) (at the cost of the Vendor) the convening and holding of all such meetings, the passing of all such resolutions, the execution and delivery of all such documents and the taking of all other action to the extent reasonably necessary in order to complete the transfer of title to the Shares to the Purchaser free from all Encumbrances and to enable the Purchaser to exercise and receive all rights and benefits attaching to or arising from the Shares;
(k) with effect from Completion, the appointment as directors and secretary of the Company of such person or persons as the Purchaser shall have nominated and the resignation of each of the Directors (except ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇ ▇pursuant to which the Vendor acquired the Shares together with the original of transfer deed executed on 25 February 1999 pursuant to which the Vendor acquired the Venture Loans and any reports or documents lodged with any relevant Spanish foreign investment authority concerning the Venture Loans;
(c) resignations in the agreed terms duly executed as deeds of Mr ▇▇▇▇ ▇▇▇▇▇▇▇ and ▇▇ and ▇▇▇▇▇▇ ▇▇▇▇▇) and the ▇ from their offices as director or secretary of the Company by delivery of containing a letter under seal from each such Director and the secretary resigning from his offices and from any employment he may confirmation that they have with the Company with effect from Completion and acknowledging that he has no claim claims (whether statutory, contractual or otherwise) against the Company either actual or contingent in respect of any cause matter or thing (statutory or otherwise);
(l) the resignation of the auditors of the Company (without for compensation for loss of office or any other claim save for proper professional fees for services rendered in respect unpaid emoluments;
(d) the Company’s Memorandum and articles of their duties as auditors prior to the completion association, Register of the 1997 Audit) Minutes of meetings of shareholders and directors, Register of agreements with effect from completion of the 1997 Audit sole shareholder, Shareholders Register, Companies House Certificate and the delivery of a statement by them that there are no circumstances connected with their ceasing to hold office which they consider should be brought to the attention of the members or creditors cheque books of the Company;
(me) revocation of the documents evidencing the Venture Loans, including any cancelled Loans, the Investigation Permits and all existing authorities to the bankers of the Company relating to bank accounts and the grant of authority to such persons as the Purchaser may nominate to operate the sameMaterial Agreements;
(nf) that all books, records the Technical Data and files the contents of the Company are in its possession or under its control and where any such are not at the Properties that the Purchaser is given details of their whereabouts and any necessary authority to collect themData Room;
(og) the delivery to the Purchaser of Disclosure Letter duly completed signed for and executed transfers of all shares in the capital of Firstpoint Services Limited not registered in the name of the Company, the statutory books and common seal (if any) of Firstpoint Services Limited and certificates for all of the issued shares in Firstpoint Services Limited.
4.3 Immediately following fulfilment of all the matters referred to in Clause 4.2 the Purchaser shall:
(a) procure that that part of the Consideration payable in cash on Completion is paid by bankers draft to the Vendor's Solicitors (who are hereby irrevocably authorised to receive that consideration) on behalf of the Vendor;
(b) deliver to the Vendor's Solicitors a counterpart of the Tax Covenant duly executed by the Purchaser;
(c) if requested, and at the Vendor's cost, deliver to the Vendor's Solicitors a legal opinion in a form reasonably satisfactory to the Vendor as to the validity and enforceability of the guarantee contained within Clause 11 of this Agreement and if such opinion is that such guarantee is not valid and enforceable such amendments shall be made to the guarantee as render it valid and enforceable; and
4.3 At or prior to Completion (d) as agent for the Company, repay the Inter-Company Debt by bankers draft and prior to the Vendor's Solicitors (who are hereby irrevocably authorised to receive that payment) on behalf taking effect of the resignations of the directors referred to in clause 4.2(c) above) the Vendor and its subsidiaries and Associates. The delivery shall procure the passing of a bankers draft to board and/or shareholder resolutions (as the Vendor's Solicitors shall be a full and sufficient discharge to case may be) in the Purchaser for agreed terms of the monies payable on Completion Company approving the sale of the Shares and the Purchaser shall not be concerned to see to the application of any payment by the Purchaser under this Clause 4.3.
4.4 If all the provisions of Clause 4.2 are not complied with in full on Completion the Purchaser may:Venture Loans:-
(a) defer Completion to a date not more than 28 days after the date specified in Clause 4.1 in which event the provisions of this Clause 4.4 shall apply to Completion as so deferred; or
(b) proceed to Completion so far as practicable without prejudice to its rights under this Agreement or otherwise and so that any provision of Clause 4.2 which may not have been complied with at Completion shall at the sole discretion sanctioning for registration of the Purchaser be held over to such future date or dates as the Purchaser may in its sole discretion determine; or
(c) terminate this Agreement (save for Clauses 12, 13, 14 and 20, which shall remain in full force and effect) provided that such termination shall not affect the rights and obligations of the parties which have accrued prior to termination and shall not limit or exclude any other rights or remedies of the Purchaser in respect of any failure by the Vendor to comply with the requirements of Clause 4.2 on the due date.
4.5 The Vendor shall use all reasonable endeavours to procure compliance with the provisions of Clause 4.2 on any date set for Completion in accordance with this Agreement.
4.6 The Vendor undertakes to and covenants with the Purchaser (for itself and as trustee for the Company) that if, after Completion, it is discovered that the Company had on or before Completion given or undertaken any guarantees, indemnities or similar securities transfers in respect of the obligations or liabilities of any person other than the Company and such guarantees, indemnities or similar securities were not finally and unconditionally released on or before Completion, the Vendor will fully indemnify the Purchaser and the Company and keep each of them fully indemnified on demand against all claims, demands, actions, proceedings, damages, losses, costs, expenses or liabilities suffered or incurred by the Purchaser or the Company under or in connection with such guarantees, indemnities or similar obligations.Shares;
Appears in 1 contract
Sources: Agreement for the Sale and Purchase of Shares and Venture Loans (Royal Gold Inc)
Completion. 4.1 Completion shall take place at the offices of the Vendors' Solicitors on a date which is not earlier than 31 December 2004 and not later than 5 Business Days after 31 December 2004.
4.2 On Completion:
(a) each Vendor will deliver to the Purchaser's Solicitors immediately following :
(i) duly executed transfers of the Sale Shares held by him in favour of the Purchaser (or as it directs) together with any power of attorney under which such transfers have been executed;
(ii) the certificates representing the Sale Shares; and
(iii) any waiver, consent or other document necessary to give the Purchaser (or its nominees) full legal and beneficial ownership of the Sale Shares; and
(b) each Vendor shall approve, or vote in favour of, a resolution to adopt the New Articles of Association.
4.3 Immediately upon the signing of this Agreement or at such other place or time as and on Completion, the Vendor Purchaser will deliver to the Vendors' Solicitors a legal opinion, addressed to the Vendors and the Purchaser may agree.
4.2 At Completion Company, in a form acceptable to the Vendor shall procureVendors and the Company, confirming that:
(a) the delivery to Purchaser is a corporation duly incorporated and validly existing under the Purchaser of duly completed and executed transfers laws of the Shares by the registered holders State of the Shares in favour of the Purchaser or its nominees together with valid share certificates representing the Shares and all (if any) other documents required to give good title to the SharesFlorida, U.S.A.;
(b) the delivery Purchaser has all necessary corporate power, authority and capacity to the Purchaser of powers of attorney in the agreed form duly executed by the registered holders enter into this Agreement and to perform its obligations hereunder and this Agreement constitutes a valid and binding obligation of the Shares;Purchaser, enforceable against it in accordance with the terms hereof; and
(c) no governmental or regulatory authorisation, approval, order, consent or filing is required on the delivery to part of the Purchaser in connection with the execution, delivery and performance of the Tax Covenant duly executed by the Vendor;
(d) the delivery to the Purchaser of the following, each duly executed and in form and substance satisfactory to the Purchaser:-
(i) a deed of release given in relation to the Company Guarantee;
(ii) a deed of release by each person holding or being entitled to any Encumbrance over the Shares this Agreement or any of the assets of the Company;documents or agreements to be delivered under this Agreement.
(iii) 4.4 The Vendors will use their reasonable endeavours to procure that a deed of waiver by the Vendor waiving any claim it or any of its subsidiaries or Associates may have against the Company;
(iv) deeds of waiver by each co-guarantor board meeting of the Company in respect is held at which the directors of the Company Guarantee;shall resolve to:
(ea) the delivery to the Purchaser of the statutory books (duly written up to date) and the certificate(s) of incorporation of the Company;
(f) the delivery to the Purchaser of all current cheque books and deposit books relating to all bank accounts of the Company;
(g) the delivery to the Purchaser of all documents of title relating to the Properties;
(h) the delivery to the Purchaser of copies of the minutes of the meetings of the boards of directors of the Vendor in the agreed form, authorising (in each case) the entry into of the transaction the subject of this Agreement, approving this Agreement and any other agreements or documents to be executed pursuant to or in connection with it and appointing the relevant signatory to sign this Agreement and such other agreements and documents on their behalf certified by the company secretary of the Vendor together with (in each case) confirmation, in the agreed form, from the company secretary that the authority conferred remains valid at Completion;
(i) the passing of effective resolutions of the Directors resolving to register the transfers of the Shares subject only to stamping of the share transfers;
(j) (at the cost of the Vendor) the convening and holding of all such meetings, the passing of all such resolutions, the execution and delivery of all such documents and the taking of all other action to the extent reasonably necessary in order to complete the transfer of title to the Sale Shares to the Purchaser free from all Encumbrances and or as it directs (subject to enable the Purchaser to exercise and receive all rights and benefits attaching to or arising from the Shares;stamping); and
(kb) with effect from Completion, the appointment as directors and secretary of the Company of appoint such person or persons as the Purchaser shall have nominated and the resignation of each nominates as a director of the Directors (except ▇▇▇▇▇ ▇Company.
4.5 Upon Completion the Purchaser will pay the consideration stated in clause 3.1 by means of an electronic funds transfer to the account of the Vendors' Solicitors with National Westminster Bank PLC, City of London Office, PO Box 12258, 1 Princes Street, London EC2R 8PA, Sort Code 60-00-01 and a▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ and ▇▇▇▇ ▇▇▇▇▇) and the secretary of the Company by delivery of a letter under seal from each such Director and the secretary resigning from his offices and from any employment he may have with the Company with effect from Completion and acknowledging that he has no claim against the Company either actual or contingent in respect of any cause matter or thing (statutory or otherwise);
(l) the resignation of the auditors of the Company (without compensation for loss of office or any other claim save for proper professional fees for services rendered in respect of their duties as auditors prior to the completion of the 1997 Audit) with effect from completion of the 1997 Audit and the delivery of a statement by them that there are no circumstances connected with their ceasing to hold office which they consider should be brought to the attention of the members or creditors of the Company;
(m) revocation of all existing authorities to the bankers of the Company relating to bank accounts and the grant of authority to such persons as the Purchaser may nominate to operate the same;
(n) that all books, records and files of the Company are in its possession or under its control and where any such are not at the Properties that the Purchaser is given details of their whereabouts and any necessary authority to collect them;
(o) the delivery to the Purchaser of duly completed and executed transfers of all shares in the capital of Firstpoint Services Limited not registered in the name of the Company, the statutory books and common seal (if any) of Firstpoint Services Limited and certificates for all of the issued shares in Firstpoint Services Limited.
4.3 Immediately following fulfilment of all the matters referred to in Clause 4.2 the Purchaser shall:
(a) procure that that part of the Consideration payable in cash on Completion is paid by bankers draft to the Vendor's Solicitors (who are hereby irrevocably authorised to receive that consideration) on behalf of the Vendor;
(b) deliver to the Vendor's Solicitors a counterpart of the Tax Covenant duly executed by the Purchaser;
(c) if requested, and at the Vendor's cost, deliver to the Vendor's Solicitors a legal opinion in a form reasonably satisfactory to the Vendor as to the validity and enforceability of the guarantee contained within Clause 11 of this Agreement and if such opinion is that such guarantee is not valid and enforceable such amendments shall be made to the guarantee as render it valid and enforceable; and
(d) as agent for the Company, repay the Inter-Company Debt by bankers draft to the Vendor's Solicitors (who are hereby irrevocably authorised to receive that payment) on behalf of the Vendor and its subsidiaries and Associates. The delivery of a bankers draft to the Vendor's Solicitors shall be a full and sufficient discharge to the Purchaser for the monies payable on Completion and the Purchaser shall not be concerned to see to the application of any payment by the Purchaser under this Clause 4.3.
4.4 If all the provisions of Clause 4.2 are not complied with in full on Completion the Purchaser may:
(a) defer Completion to a date not more than 28 days after the date specified in Clause 4.1 in which event the provisions of this Clause 4.4 shall apply to Completion as so deferred; or
(b) proceed to Completion so far as practicable without prejudice to its rights under this Agreement or otherwise and so that any provision of Clause 4.2 which may not have been complied with at Completion shall at the sole discretion of the Purchaser be held over to such future date or dates as the Purchaser may in its sole discretion determine; or
(c) terminate this Agreement (save for Clauses 12, 13, 14 and 20, which shall remain in full force and effect) provided that such termination shall not affect the rights and obligations of the parties which have accrued prior to termination and shall not limit or exclude any other rights or remedies of the Purchaser in respect of any failure by the Vendor to comply with the requirements of Clause 4.2 on the due date.
4.5 The Vendor shall use all reasonable endeavours to procure compliance with the provisions of Clause 4.2 on any date set for Completion in accordance with this Agreement.
4.6 The Vendor undertakes to and covenants with the Purchaser (for itself and as trustee for the Company) that if, after Completion, it is discovered that the Company had on or before Completion given or undertaken any guarantees, indemnities or similar securities in respect of the obligations or liabilities of any person other than the Company and such guarantees, indemnities or similar securities were not finally and unconditionally released on or before Completion, the Vendor will fully indemnify the Purchaser and the Company and keep each of them fully indemnified on demand against all claims, demands, actions, proceedings, damages, losses, costs, expenses or liabilities suffered or incurred by the Purchaser or the Company under or in connection with such guarantees, indemnities or similar obligations.
Appears in 1 contract
Sources: Agreement for the Sale and Purchase of Shares (Rs Group of Companies Inc)
Completion. 4.1 Completion shall take place on the Completion Date at the offices of the Purchaser's Solicitors immediately following the signing of this Agreement or at such other place or time as the Vendor and the Purchaser may agree.
4.2 At Completion the Vendor shall procure:
(a) the delivery to the Purchaser of duly completed and executed transfers of the Shares by the registered holders of the Shares in favour of the Purchaser or its nominees together with valid share certificates representing the Shares and all (if any) other documents required to give good title to the Shares;
(b) the delivery to the Purchaser of powers of attorney in the agreed form duly executed by the registered holders of the Shares;
(c) the delivery to the Purchaser of the Tax Covenant duly executed by the Vendor;
(d) the delivery to the Purchaser of the following, each duly executed and in form and substance satisfactory to the Purchaser:-
(i) a deed of release given in relation to the Company Guarantee;
(ii) a deed of release by each person holding or being entitled to any Encumbrance over the Shares or any of the assets of the Company;
(iii) a deed of waiver by the Vendor waiving any claim it or any of its subsidiaries or Associates may have against the Company;
(iv) deeds of waiver by each co-guarantor of the Company in respect of the Company Guarantee;
(e) the delivery to the Purchaser of the statutory books (duly written up to date) and the certificate(s) of incorporation of the Company;
(f) the delivery to the Purchaser of all current cheque books and deposit books relating to all bank accounts of the Company;
(g) the delivery to the Purchaser of all documents of title relating to the Properties;
(h) the delivery to the Purchaser of copies of the minutes of the meetings of the boards of directors of the Vendor in the agreed form, authorising (in each case) the entry into of the transaction the subject of this Agreement, approving this Agreement and any other agreements or documents to be executed pursuant to or in connection with it and appointing the relevant signatory to sign this Agreement and such other agreements and documents on their behalf certified by the company secretary of the Vendor together with (in each case) confirmation, in the agreed form, from the company secretary that the authority conferred remains valid at Completion;
(i) the passing of effective resolutions of the Directors resolving to register the transfers of the Shares subject only to stamping of the share transfers;
(j) (at the cost of the Vendor) the convening and holding of all such meetings, the passing of all such resolutions, the execution and delivery of all such documents and the taking of all other action to the extent reasonably necessary in order to complete the transfer of title to the Shares to the Purchaser free from all Encumbrances and to enable the Purchaser to exercise and receive all rights and benefits attaching to or arising from the Shares;
(k) with effect from Completion, the appointment as directors and secretary of the Company of such person or persons as the Purchaser shall have nominated and the resignation of each of the Directors (except ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, #▇▇-▇▇▇▇ /▇▇, ▇▇▇ ▇▇▇▇▇▇▇▇ and ▇▇▇▇ ▇▇▇▇▇) and , Singapore 118261 or at such other place as may be mutually agreed in writing by the secretary Parties hereto.
4.2 At Completion, as soon as MC confirms receipt of the payment by PacNet pursuant to Section 4.3, MC shall deliver to PacNet:
i. duly executed transfers in favour of PacNet or its nominee, of all the Shares together with such other documents which may be necessary to register PacNet or its nominee, as the case may be, as the registered owner of the Shares; and
ii. letters of resignation from MC nominated directors on the board of directors of the Company by delivery of a letter under seal from each such Director and its subsidiary, namely, Pacfusion Group Holdings Pte Ltd, on terms that the secretary persons resigning from his offices and from any employment he may have with the Company with effect from Completion and acknowledging that he has no claim further claims whatsoever against the Company either actual or contingent in respect of any cause matter or thing (statutory or otherwise);
(l) the resignation of the auditors of the Company (without compensation for loss of office or any other claim save for proper professional fees for services rendered in respect of their duties as auditors prior to the completion of the 1997 Audit) with effect from completion of the 1997 Audit and the delivery of a statement by them that there are no circumstances connected with their ceasing to hold office which they consider should be brought to the attention of the members or creditors of the Company;
(m) revocation of all existing authorities to the bankers of the Company relating to bank accounts and the grant of authority to such persons Pacfusion Group Holdings Pte Ltd, as the Purchaser case may nominate to operate the same;
(n) that all books, records and files of the Company are in its possession or under its control and where any such are not at the Properties that the Purchaser is given details of their whereabouts and any necessary authority to collect them;
(o) the delivery to the Purchaser of duly completed and executed transfers of all shares in the capital of Firstpoint Services Limited not registered in the name of the Company, the statutory books and common seal (if any) of Firstpoint Services Limited and certificates for all of the issued shares in Firstpoint Services Limitedbe.
4.3 Immediately following fulfilment At Completion, PacNet shall pay the Purchase Price to MC in the form of all the matters referred telegraphic transfer to in Clause 4.2 the Purchaser shall:
(a) procure that that part a Singapore Dollar bank account designated by MC or such other forms of the Consideration payable in cash on Completion is paid by bankers draft to the Vendor's Solicitors (who are hereby irrevocably authorised to receive that consideration) on behalf of the Vendor;
(b) deliver to the Vendor's Solicitors a counterpart of the Tax Covenant duly executed payment as may be agreed upon by the Purchaser;
(c) if requested, and at the Vendor's cost, deliver to the Vendor's Solicitors a legal opinion in a form reasonably satisfactory to the Vendor as to the validity and enforceability of the guarantee contained within Clause 11 of this Agreement and if such opinion is that such guarantee is not valid and enforceable such amendments shall be made to the guarantee as render it valid and enforceable; and
(d) as agent for the Company, repay the Inter-Company Debt by bankers draft to the Vendor's Solicitors (who are hereby irrevocably authorised to receive that payment) on behalf of the Vendor and its subsidiaries and Associates. The delivery of a bankers draft to the Vendor's Solicitors shall be a full and sufficient discharge to the Purchaser for the monies payable on Completion and the Purchaser shall not be concerned to see to the application of any payment by the Purchaser under this Clause 4.3Parties.
4.4 If MC agrees and acknowledge that upon its receipt of all the provisions of Clause 4.2 are not complied with in full on Completion the Purchaser may:
(a) defer Completion amounts due to a date not more than 28 days after the date specified in Clause 4.1 in which event the provisions of this Clause 4.4 shall apply to Completion as so deferred; or
(b) proceed to Completion so far as practicable without prejudice to its rights it under this Agreement or otherwise Agreement, all obligations owed by PacNet and/or the Company to MC under the Transaction Documents shall be deemed completely discharged, released and so that any provision of Clause 4.2 which may not satisfied and MC shall have been complied with at Completion shall at no further claims whatsoever against PacNet and/or the sole discretion of Company under the Purchaser be held over to such future date or dates as the Purchaser may in its sole discretion determine; or
(c) terminate this Agreement (save for Clauses 12, 13, 14 and 20, which shall remain in full force and effect) provided that such termination shall not affect the rights and obligations of the parties which have accrued prior to termination and shall not limit or exclude any other rights or remedies of the Purchaser in respect of any failure by the Vendor to comply with the requirements of Clause 4.2 on the due dateTransaction Documents.
4.5 The Vendor shall use all reasonable endeavours to procure compliance with the provisions of Clause 4.2 on any date set for Completion in accordance with this Agreement.
4.6 The Vendor undertakes to and covenants with the Purchaser (for itself and as trustee for the Company) that if, after Effective from Completion, it is discovered that the Company had on PacNet shall release, waive and forever discharge MC, including without limitation its shareholders, officers, directors, agents, employees, representatives, affiliates and all persons acting by, through or before Completion given or undertaken under any guarantees, indemnities or similar securities in respect of the obligations or liabilities of foregoing (hereinafter referred to as the "Released Parties"), from any person other than the Company and such guarantees, indemnities or similar securities were not finally and unconditionally released on or before Completion, the Vendor will fully indemnify the Purchaser and the Company and keep each of them fully indemnified on demand against all claims, demands, actions, proceedingssuits, debts, liens, contracts, agreements, promises, obligations, liabilities, damages, losses, costscosts and claims of any nature whatsoever ("Claims") arising from the Transaction Documents and the business of the Company, expenses or liabilities suffered or incurred by the Purchaser or which PacNet and/or the Company under may have against any or in connection with all of the Released Parties, whether such guaranteesclaims be direct or indirect, indemnities known or similar obligationsunknown, save and except if such Claims were caused by any of the Released Parties' negligence, default or omission.
4.6 Effective from Completion, PacNet shall indemnify MC and each of its current and former directors, employees (hereinafter collectively referred to as the "MC Indemnities"), and hold the MC Indemnities harmless from any and all civil liability, claims, causes of action, damages, fees and costs of any nature whatsoever (including, without limitation, attorneys' fees and costs) ("Indemnified Claims"), arising out of, concerning or relating to, directly or indirectly, the business of the Company, save and except if such Indemnified Claims were caused by any of MC Indemnities' negligence, default or omission.
4.7 Effective from Completion, the Original Shareholders Agreement and Supplemental Shareholders Agreement shall terminate save and except Section 5.7 of the Original Shareholders Agreement and Section 9.8 of the Supplemental Shareholders Agreement.
4.8 Effective from Completion, MC Warrants shall become void and Warrant Agreement shall terminate.
Appears in 1 contract
Completion. 4.1 Completion shall take place at the offices registered office of the Purchaser's Solicitors immediately following Company one minute after the signing execution of this Agreement or at such other place or time Deed (the “Completion Time”). Immediately upon execution of this Deed: the Shareholder shall be reinstated on the Company’s register of members reflecting the fact that, due to the Relevant Buybacks being conducted otherwise than in accordance with the Act, title to the Shares did not pass from the Shareholder to the Company as the Vendor intended; and the Purchaser may agree.
4.2 At Completion Company shall issue the Vendor shall procure:
(a) the delivery to the Purchaser of duly completed and executed transfers Shareholder a share certificate in respect of the Shares (the “Share Certificate”). Following the reinstatement of the Shareholder on the Company’s register of members pursuant to Clause 3.2, at the Completion Time: the Shareholder shall deliver to the Company the Share Certificate; and the Company shall pay the Purchase Price to the Shareholder. The Company unconditionally and irrevocably waives and releases the Shareholder and its Indemnified Persons (as defined in the Engagement Letter) from any and all liability that it has or may have to the Company and all claims and demands the Company has or may have against the Shareholders or any Indemnified Person (including, without limitation, any derivative action from or on behalf of shareholders of the Company and any claims or demands that the Company has or may have in respect of monies previously paid by the registered holders of the Shares in favour of the Purchaser or its nominees together with valid share certificates representing the Shares and all (if any) other documents required to give good title Company to the Shares;
(b) the delivery to the Purchaser of powers of attorney Shareholder in the agreed form duly executed by the registered holders respect of the Shares;
(c) in connection with the delivery Relevant Buybacks, provided that nothing herein will or is intended to release the Shareholder from any liability that it has to the Purchaser of the Tax Covenant duly executed by the Vendor;
(d) the delivery to the Purchaser of the following, each duly executed and in form and substance satisfactory to the Purchaser:-
(i) a deed of release given Company in relation to the Company Guarantee;
(ii) a deed Programme generally pursuant to the Engagement Letter. The Shareholder: acknowledges and agrees that its reinstatement to the Company’s register of release by each person holding or being entitled members immediately upon execution of this Deed pursuant to Clause 3.2.1 satisfies any Encumbrance over the Shares or any of the assets and all of the Company;
(iii) a deed of waiver by the Vendor waiving any claim it or any of its subsidiaries or Associates may have against the Company;
(iv) deeds of waiver by each co-guarantor of the Company in respect of the Company Guarantee;
(e) the delivery ’s obligations to the Purchaser of the statutory books (duly written up to date) and the certificate(s) of incorporation of the Company;
(f) the delivery to the Purchaser of all current cheque books and deposit books relating to all bank accounts of the Company;
(g) the delivery to the Purchaser of all documents of title relating to the Properties;
(h) the delivery to the Purchaser of copies of the minutes of the meetings of the boards of directors of the Vendor in the agreed form, authorising (in each case) the entry into of the transaction the subject of this Agreement, approving this Agreement and any other agreements or documents to be executed pursuant to or in connection with it and appointing the relevant signatory to sign this Agreement and such other agreements and documents on their behalf certified by the company secretary of the Vendor together with (in each case) confirmation, in the agreed form, from the company secretary that the authority conferred remains valid at Completion;
(i) the passing of effective resolutions of the Directors resolving to register the transfers of the Shares subject only to stamping of the share transfers;
(j) (at the cost of the Vendor) the convening and holding of all such meetings, the passing of all such resolutions, the execution and delivery of all such documents and the taking of all other action to the extent reasonably necessary in order to complete the transfer of restore legal title to the Shares to it (on the Purchaser free from all Encumbrances and to enable the Purchaser to exercise and receive all rights and benefits attaching to or arising from the Shares;
(k) with effect from Completion, the appointment as directors and secretary of the Company of such person or persons as the Purchaser shall have nominated and the resignation of each of the Directors (except ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ and ▇▇▇▇ ▇▇▇▇▇) and the secretary of the Company by delivery of a letter under seal from each such Director and the secretary resigning from his offices and from any employment he may have with the Company with effect from Completion and acknowledging that he has no claim against the Company either actual or contingent in respect of any cause matter or thing (statutory or otherwise);
(l) the resignation of the auditors of the Company (without compensation for loss of office or any other claim save for proper professional fees for services rendered in respect of their duties as auditors prior to the completion of the 1997 Audit) with effect from completion of the 1997 Audit and the delivery of a statement by them that there are no circumstances connected with their ceasing to hold office which they consider should be brought to the attention of the members or creditors of the Company;
(m) revocation of all existing authorities to the bankers of the Company relating to bank accounts and the grant of authority to such persons as the Purchaser may nominate to operate the same;
(n) that all books, records and files of the Company are in its possession or under its control and where any such are not at the Properties basis that the Purchaser is given details of their whereabouts and any necessary authority to collect them;
(o) the delivery to the Purchaser of duly completed and executed transfers of all shares in the capital of Firstpoint Services Limited not registered in the name of the Company, the statutory books and common seal (if any) of Firstpoint Services Limited and certificates for all of the issued shares in Firstpoint Services Limited.
4.3 Immediately following fulfilment of all the matters referred to in Clause 4.2 the Purchaser shall:
(a) procure that that part of the Consideration payable in cash on Completion is paid by bankers draft to the Vendor's Solicitors (who are hereby irrevocably authorised to receive that consideration) on behalf of the Vendor;
(b) deliver to the Vendor's Solicitors a counterpart of the Tax Covenant duly executed by the Purchaser;
(c) if requested, and at the Vendor's cost, deliver to the Vendor's Solicitors a legal opinion in a form reasonably satisfactory to the Vendor as to the validity and enforceability of the guarantee contained within Clause 11 of this Agreement and if such opinion is that such guarantee is not valid and enforceable such amendments shall be made to the guarantee as render it valid and enforceable; and
(d) as agent for the Company, repay the Inter-Company Debt by bankers draft to the Vendor's Solicitors (who are hereby irrevocably authorised to receive that payment) on behalf of the Vendor and its subsidiaries and Associates. The delivery of a bankers draft to the Vendor's Solicitors shall be a full and sufficient discharge to the Purchaser for the monies payable on Completion and the Purchaser shall not be concerned to see to the application of any payment by the Purchaser under this Clause 4.3.
4.4 If all the provisions of Clause 4.2 are not complied with in full on Completion the Purchaser may:
(a) defer Completion to a date not more Relevant Buybacks were conducted otherwise than 28 days after the date specified in Clause 4.1 in which event the provisions of this Clause 4.4 shall apply to Completion as so deferred; or
(b) proceed to Completion so far as practicable without prejudice to its rights under this Agreement or otherwise and so that any provision of Clause 4.2 which may not have been complied with at Completion shall at the sole discretion of the Purchaser be held over to such future date or dates as the Purchaser may in its sole discretion determine; or
(c) terminate this Agreement (save for Clauses 12, 13, 14 and 20, which shall remain in full force and effect) provided that such termination shall not affect the rights and obligations of the parties which have accrued prior to termination and shall not limit or exclude any other rights or remedies of the Purchaser in respect of any failure by the Vendor to comply with the requirements of Clause 4.2 on the due date.
4.5 The Vendor shall use all reasonable endeavours to procure compliance with the provisions of Clause 4.2 on any date set for Completion in accordance with this Agreement.
4.6 The Vendor undertakes the Act); and waives any rights or claims it has or may have to and covenants with the Purchaser (for itself and as trustee for the Company) dividends that if, after Completion, would otherwise be due to it is discovered that the Company had on or before Completion given or undertaken any guarantees, indemnities or similar securities in respect of the obligations Shares, the current value of the Shares and any other rights, claims, interests or liabilities benefits which may have arisen in respect of any person other than the Shares prior to the date hereof. The Company and such guarantees, indemnities or similar securities were not finally the Shareholder acknowledge and unconditionally released on or before Completion, agree that the Vendor will fully indemnify indemnity in Section 5 and Schedule A of the Purchaser Engagement Letter does and the Company and keep each of them fully indemnified on demand against all claims, demands, actions, proceedings, damages, losses, costs, expenses or liabilities suffered or is intended to cover Losses (as defined therein) incurred by the Purchaser or the Company under or Indemnified Persons (as defined therein) in connection with such guarantees, indemnities or similar obligationsthe Relevant Buybacks having been conducted otherwise than in accordance with the Act.
Appears in 1 contract
Sources: Share Purchase Deed
Completion. 4.1 Completion 6.1 The sale and purchase of the Sale Shares shall take place be completed at the offices of the Purchaser's Solicitors immediately following the signing of this Agreement at 12 noon on 1 October 1999 (or at such other time or place or time as the Vendor and the Purchaser may parties shall agree).
4.2 At 6.2 On Completion the Vendor Vendors shall procuredeliver or cause to be delivered to the Purchaser:
(a) the delivery to the Purchaser of duly completed and executed transfers stock transfer forms in respect of the Sale Shares by together with the registered holders of the Shares related share certificates (such stock transfer forms to be in favour of the Purchaser or its nominees nominees, as the Purchaser shall direct) together with valid share certificates representing the Shares and all (if any) such waivers, consents, or other documents required as the Purchaser may require to give good title enable it or its nominees to be registered as the Sharesholders of the Sale Shares free from all Encumbrances and other adverse rights whatsoever;
(b) an acknowledgement from each of the delivery Vendors to the Purchaser and the Company executed as a deed to the effect that save in relation to remuneration or reimbursement of powers of attorney expenses incurred in relation to his or her employment, there is no outstanding indebtedness owing at Completion from the agreed form duly executed by the registered holders of the SharesCompany to such Vendor or to any such Vendor's Affiliate or vice versa;
(c) letter of resignation in the delivery to agreed form from the Purchaser of the Tax Covenant duly executed by the Vendor;
(d) the delivery to the Purchaser of the following, each duly executed and in form and substance satisfactory to the Purchaser:-
(i) a deed of release given in relation to the Company Guarantee;
(ii) a deed of release by each person holding or being entitled to any Encumbrance over the Shares or any of the assets secretary of the Company;
(iiid) letter of resignation from ▇▇ ▇▇▇▇ as a deed of waiver by the Vendor waiving any claim it or any of its subsidiaries or Associates may have against the Company;
(iv) deeds of waiver by each co-guarantor director of the Company and a compromise agreement in respect the agreed form between the Company and Mr P ▇▇▇▇'▇ duly executed by the parties in compliance with the provisions of section 203 of the Company GuaranteeEmployment Rights ▇▇▇ ▇▇▇▇; in the agreed form from Mr P ▇▇▇▇;
(e) the delivery to the Purchaser statutory books of the statutory books (duly written Company complete and accurate up to date) Completion and the certificate(s) any company seal, certificates of incorporation, certificates of incorporation on change of name and all unused share certificates of the Company and all cheque books of the Company;
(f) the delivery to Tax Deed duly executed by the Purchaser of all current cheque books and deposit books relating to all bank accounts of the CompanyVendors;
(g) the delivery to the Purchaser of all documents of title relating to the PropertiesDisclosure Letter;
(h) the delivery to the Purchaser of copies of the minutes of the meetings of the boards of directors of the Vendor revised service agreement in the agreed form, authorising (in each case) form between the entry into of the transaction the subject of this Agreement, approving this Agreement Company and any other agreements or documents to be executed pursuant to or in connection with it Ms T ▇▇▇▇▇▇ and appointing the relevant signatory to sign this Agreement and such other agreements and documents on their behalf certified by the company secretary of the Vendor together with (in each case) confirmation, a consultancy agreement in the agreed form, from form between the company secretary that Company and Mr P ▇▇▇▇ duly executed by the authority conferred remains valid at Completionparties;
(i) the passing of effective resolutions of Escrow Agreement duly executed by the Directors resolving to register Vendors and the transfers of the Shares subject only to stamping of the share transfersVendors' Solicitors;
(j) letters of non-crystallisation in the agreed form executed by NatWest Bank plc; and
(at k) such other documents relating to the cost Company as the Purchaser shall reasonably require.
6.3 On Completion the Vendors shall procure the holding of a meeting of the Vendordirectors of the Company at which the directors of the Company shall:
(a) (subject to stamping) approve the convening and holding of all such meetings, the passing of all such resolutions, the execution and delivery of all such documents and the taking of all other action to the extent reasonably necessary in order to complete the transfer of title to the Shares transfers to the Purchaser free from all Encumbrances and to enable (or its nominees) of the Purchaser to exercise and receive all rights and benefits attaching to or arising from the Sale Shares;
(kb) with effect from Completion, the appointment as directors and secretary of the Company of such person or persons as the Purchaser shall have nominated and the resignation of each of the Directors (except appoint ▇▇▇▇▇ ▇▇▇▇ as chairman, Sar Ramadan and ▇▇▇▇▇▇ ▇▇▇▇▇▇ as additional directors of the Company and delegate to ▇▇▇▇▇ ▇▇▇▇▇▇ the following operating powers:
(i) all UK direct and indirect channel sales responsibility ;
(ii) all UK marketing functions and responsibilities;
(iii) all UK finance and accounting functions;
(iv) all responsibility and authority in respect of UK service delivery covering all direct and channel support service including but not limited to consulting, education and maintenance revenues; and
(v) direct line management responsibility for all UK managers but provided that the Purchaser shall have an indirect reporting relationship with UK financial controllers; provided that the Purchaser shall remain responsible after due consultation with ▇▇▇▇▇ ▇▇▇▇▇▇ for establishing strategy and corporate policies in the UK in areas including but not limited to finance, accounting, legal and human resources and ▇▇▇▇▇ ▇▇▇▇▇▇ shall have the operating powers set out above in order to implement such strategic policies, but only pursuant to a business plan which has been reviewed and approved by the Purchaser (such approval not to be unreasonably withheld):
(c) appoint TJG Secretaries Limited of Carmelite, ▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇ ODX as the new secretary of the Company;
(d) accept the resignations referred to in sub-clauses 6.2(c) and (d) relating to the Company;
(e) approve the documents referred to in sub-clause 6.2(h) and authorise one or more of the directors referred to in sub-clause (b) of this clause to execute the same on behalf of the Company;
(f) change the registered office of the Company to Carmelite, ▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇ ODX;
(g) cancel the existing mandates to the Company's bankers and replace them with new mandates as requested by the Purchaser; and
(h) pass any other resolutions reasonably requested by the Purchaser.
6.4 On Completion the Purchaser shall deliver to the Vendors or to the Vendors' Solicitors (whose receipt shall be a sufficient discharge):
(a) a counterpart of the Tax Deed duly executed by the Purchaser;
(b) a certified copy of instructions to the Purchaser's Transfer Agent to prepare Share Stock Certificates in favour of the Vendors in respect of the number of Escrow Shares set out against their respective names in schedule 1;
(c) a counterpart of the Escrow Agreement duly executed by the Purchaser and the Purchaser's Solicitors;
(d) an opinion in the agreed form from ▇▇▇▇▇▇▇ Coie regarding (inter alia) the corporate authorisation and constitutional power of the Purchaser to enter into the arrangements and agreement contemplated by this agreement.
6.5 The Purchaser and the Vendors agree that the Vendors shall have those rights with respect to the Exchange Shares on the same terms and conditions, and subject to the same obligations, as provided in sections 1.3 and 1.12 of the Amended and Restated Investors' Rights Agreement dated 14 December 1998 by and among the Purchaser and the shareholders of the Purchaser named therein, a copy of which is attached hereto as Exhibit A . The Vendors shall be deemed to be "Holders" and "the Exchange Shares" held by the Vendors shall be deemed to be "Registrable Securities" for purposes of sections 1.3 and 1.12 of the Investors' Rights Agreement.
6.6 The Purchaser warrants to the Vendors that the granting of the rights to the Vendors referred to in clause 6.5 does not either:
(a) require an amendment to the Investor Rights Agreement; or
(b) conflict with any other obligations of the Purchaser.
6.7 On Completion the Purchaser shall on account of its obligation under sub-clause 3.1 cause the sum of US$5,000,000 to be paid by electronic funds transfer to the bank account of the Vendors' Solicitors at NatWest Bank plc, ▇▇ ▇▇▇▇ ▇▇▇▇▇) ▇, ▇▇▇▇▇▇▇ sort code 560005 , Account No: ▇▇▇▇▇▇▇▇ and the secretary of the Company by delivery of payment made in accordance with this clause shall constitute a letter under seal from each such Director and the secretary resigning from his offices and from any employment he may have with the Company with effect from Completion and acknowledging that he has no claim against the Company either actual or contingent in respect of any cause matter or thing (statutory or otherwise);
(l) the resignation of the auditors of the Company (without compensation good discharge for loss of office or any other claim save for proper professional fees for services rendered in respect of their duties as auditors prior to the completion of the 1997 Audit) with effect from completion of the 1997 Audit and the delivery of a statement by them that there are no circumstances connected with their ceasing to hold office which they consider should be brought to the attention of the members or creditors of the Company;
(m) revocation of all existing authorities to the bankers of the Company relating to bank accounts and the grant of authority to such persons as the Purchaser may nominate to operate the same;
(n) that all books, records and files of the Company are in its possession or under its control and where any such are not at the Properties that the Purchaser is given details of their whereabouts and any necessary authority to collect them;
(o) the delivery to the Purchaser of duly completed its obligations under clauses 3.1
(a) (to the extent of the payment so made) and executed transfers 3.2(a).
6.8 On or as soon as practicable after Completion, the Escrow Shares which each Vendor is entitled to receive pursuant to clause 3 of all shares in the capital this agreement shall without any act of Firstpoint Services Limited not such Vendor be registered in the name of the Company, the statutory books relevant Vendor and common seal (if any) of Firstpoint Services Limited and certificates for all of the issued shares in Firstpoint Services Limited.
4.3 Immediately following fulfilment of all the matters referred to in Clause 4.2 the Purchaser shall:
(a) procure that that part of the Consideration payable in cash on Completion is paid by bankers draft to the Vendor's Solicitors (who are hereby irrevocably authorised to receive that consideration) on behalf of the Vendor;
(b) deliver to the Vendor's Solicitors a counterpart of the Tax Covenant duly executed by the Purchaser;
(c) if requested, and at the Vendor's cost, deliver to the Vendor's Solicitors a legal opinion in a form reasonably satisfactory to the Vendor as to the validity and enforceability of the guarantee contained within Clause 11 of this Agreement and if such opinion is that such guarantee is not valid and enforceable such amendments shall be made to the guarantee as render it valid and enforceable; and
(d) as agent for the Company, repay the Inter-Company Debt by bankers draft to the Vendor's Solicitors (who are hereby irrevocably authorised to receive that payment) on behalf of the Vendor and its subsidiaries and Associates. The delivery of a bankers draft to the Vendor's Solicitors shall be a full and sufficient discharge to the Purchaser for the monies payable on Completion and the Purchaser shall not be concerned to see to the application of any payment by the Purchaser under this Clause 4.3.
4.4 If all the provisions of Clause 4.2 are not complied with deposited in full on Completion the Purchaser may:
(a) defer Completion to a date not more than 28 days after the date specified escrow in Clause 4.1 in which event the provisions of this Clause 4.4 shall apply to Completion as so deferred; or
(b) proceed to Completion so far as practicable without prejudice to its rights under this Agreement or otherwise and so that any provision of Clause 4.2 which may not have been complied with at Completion shall at the sole discretion of the Purchaser be held over to such future date or dates as the Purchaser may in its sole discretion determine; or
(c) terminate this Agreement (save for Clauses 12, 13, 14 and 20, which shall remain in full force and effect) provided that such termination shall not affect the rights and obligations of the parties which have accrued prior to termination and shall not limit or exclude any other rights or remedies of the Purchaser in respect of any failure by the Vendor to comply with the requirements of Clause 4.2 on the due date.
4.5 The Vendor shall use all reasonable endeavours to procure compliance accordance with the provisions of Clause 4.2 on any date set for Completion in accordance with this the Escrow Agreement.
4.6 The Vendor undertakes to and covenants with the Purchaser (for itself and as trustee for the Company) that if, after Completion, it is discovered that the Company had on or before Completion given or undertaken any guarantees, indemnities or similar securities in respect of the obligations or liabilities of any person other than the Company and such guarantees, indemnities or similar securities were not finally and unconditionally released on or before Completion, the Vendor will fully indemnify the Purchaser and the Company and keep each of them fully indemnified on demand against all claims, demands, actions, proceedings, damages, losses, costs, expenses or liabilities suffered or incurred by the Purchaser or the Company under or in connection with such guarantees, indemnities or similar obligations.
Appears in 1 contract
Sources: Sale and Purchase Agreement (Onyx Software Corp/Wa)
Completion. 4.1 Subject to Clause 3, Completion shall take place at within three (3) Business Day after the offices of the Purchaser's Solicitors immediately following the signing of this Agreement or at such other place or time as the Vendor and the Purchaser may agree.
4.2 At Completion the Vendor shall procure:
(a) the delivery to the Purchaser of duly completed and executed transfers of the Shares by the registered holders of the Shares in favour of the Purchaser or its nominees together with valid share certificates representing the Shares and all (if any) other documents required to give good title to the Shares;
(b) the delivery to the Purchaser of powers of attorney in the agreed form duly executed by the registered holders of the Shares;
(c) the delivery to the Purchaser of the Tax Covenant duly executed by the Vendor;
(d) the delivery to the Purchaser of the following, each duly executed and in form and substance satisfactory to the Purchaser:-
(i) a deed of release given in relation to the Company Guarantee;
(ii) a deed of release by each person holding or being entitled to any Encumbrance over the Shares or any of the assets of the Company;
(iii) a deed of waiver by the Vendor waiving any claim it or any of its subsidiaries or Associates may have against the Company;
(iv) deeds of waiver by each co-guarantor of the Company in respect of the Company Guarantee;
(e) the delivery to the Purchaser of the statutory books (duly written up to date) and the certificate(s) of incorporation of the Company;
(f) the delivery to the Purchaser of all current cheque books and deposit books relating to all bank accounts of the Company;
(g) the delivery to the Purchaser of all documents of title relating to the Properties;
(h) the delivery to the Purchaser of copies of the minutes of the meetings of the boards of directors of the Vendor in the agreed form, authorising (in each case) the entry into of the transaction the subject of this Agreement, approving this Agreement and any other agreements or documents to be executed pursuant to or in connection with it and appointing the relevant signatory to sign this Agreement and such other agreements and documents on their behalf certified by the company secretary of the Vendor together with (in each case) confirmation, in the agreed form, from the company secretary that the authority conferred remains valid at Completion;
(i) the passing of effective resolutions of the Directors resolving to register the transfers of the Shares subject only to stamping of the share transfers;
(j) (at the cost of the Vendor) the convening and holding of all such meetings, the passing of all such resolutions, the execution issue and delivery of all such documents and the taking of all other action notice referred to in Clause 3.2 by the Company to the extent reasonably necessary Subscribers or such other time and date as may be mutually agreed by the Parties, at the in order to complete the transfer of title to the Shares to the Purchaser free from all Encumbrances and to enable the Purchaser to exercise and receive all rights and benefits attaching to or arising from the Shares;
(k) with effect from Completion, the appointment as directors and secretary of the Company of such person or persons as the Purchaser shall have nominated and the resignation of each of the Directors (except ▇▇▇▇▇ ▇▇, ▇▇▇▇▇▇▇▇ ▇▇. ▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇ and ▇▇▇▇ ▇▇▇▇▇District, Guangzhou, the PRC (中国广州市荔湾区芳村大道下市直街1号第17幢自编8A号房) or at such other place and time as the secretary parties shall mutually agree in writing. At the Completion:
(a) The Company shall
(i) issue to the Subscribers a notice to pay the aggregate Subscription Price (“Payment Notice”) notifying each Subscriber to complete the following:
1) converting its share of the Convertible Loan into Series A Preference Shares at a conversion price equal to the Subscription Price per Series A Preference Share in accordance with the terms of the Loan Agreement;
2) making the payment of an amount equal to its share of remaining Subscription Price;
(ii) deliver to the Subscribers a certificate of compliance dated the Completion Date and signed by each Group Company and each Key Holder certifying that all of the Conditions have been fulfilled and stating that there shall have been no Material Adverse Effect since the Balance Sheet Date;
(iii) deliver to the Subscribers true copies of the Board resolutions of the Company by delivery of a letter under seal from each such Director approving this Agreement, the Shareholders’ Agreement and the secretary resigning from his offices entry into and from any employment he may have with performance of each of such documents by the Company with effect from Completion including the allotment and acknowledging that he has no claim against issuance of the Company either actual or contingent Subscription Shares and share certificates in respect of any cause matter or thing the Subscription in accordance with the terms of this Agreement;
(statutory or otherwiseiv) deliver to the Subscribers true copies of the Board resolutions and shareholders’ resolutions of the Company duly passed for approving the Board Re-composition and the appointment of each person nominated by each Subscribers as Director in accordance with Clause 3.1 (l);
(lv) deliver to the resignation Subscribers the Share Restriction Agreement in the form attached hereto as Exhibit J, each duly executed by the parties thereto (other than the Subscribers);
(vi) deliver to the Subscribers the Shareholders’ Agreement each duly executed by the parties thereto (other than the Subscribers);
(vii) enter the name of such person as shall be nominated by each Subscriber in the auditors register of directors of the Company (without compensation for loss of office or any other claim save for proper professional fees for services rendered in respect of their duties as auditors prior a Director and deliver to the completion Subscribers a certified copy of such updated register of directors;
(viii) deliver to the Subscribers true copies of the 1997 Audit) with effect from completion register of members of the 1997 Audit Company as updated to reflect the Subscription Shares being purchased by the Subscribers and the delivery of certified by a statement by them that there are no circumstances connected with their ceasing to hold office which they consider should be brought to the attention of the members or creditors director of the Company;
(mix) revocation of all existing authorities deliver to the bankers Subscribers true copies of the share certificates issued in the name of each of the Subscribers for the Subscription Shares, duly signed and sealed for and on behalf of the Company relating (with the originals delivered to bank accounts and the grant Subscribers as soon as practical after the Completion); and
(x) deliver all other documents or evidence that may be reasonably requested by Subscribers to verify that the Conditions have been fulfilled.
(b) Each of authority the Subscribers shall, severally but not jointly,
(i) deliver to such persons as the Purchaser may nominate to operate Company a signed application form for the sameSubscription Shares at the Subscription Price in substantially the form set out in Schedule 5;
(nii) that all books, records and files convert its share of the Company are principal amount outstanding and the interest accrued thereon under the Convertible Loan into Series A Preference Shares at a conversion price equal to the Subscription Price per Share in its possession or under its control and where any such are not at accordance with the Properties that terms of the Purchaser is given details of their whereabouts and any necessary authority to collect themBridge Loan Agreements;
(oiii) make the payment of an amount equal to its share of remaining Subscription Price as set out in Schedule 1 by wiring such amount in immediately available funds into the bank account designated by the Company for value on the Completion Date (for avoidance of doubt, the obligations of the Subscribers under Clause 4.1(b)(iii) shall be deemed satisfied by the delivery to the Purchaser of duly completed and executed transfers of all shares in the capital of Firstpoint Services Limited not registered in the name Company a copy of the Company, bank confirmation confirming the statutory books and common seal (if any) of Firstpoint Services Limited and certificates for all wiring of the issued shares in Firstpoint Services Limitedremaining Subscription Price), provided that wire transfer instructions are delivered to each Subscriber at least five (5) Business Days prior to the Completion.
4.3 Immediately following fulfilment of all the matters referred to in Clause 4.2 the Purchaser shall:; and
(a) procure that that part of the Consideration payable in cash on Completion is paid by bankers draft to the Vendor's Solicitors (who are hereby irrevocably authorised to receive that consideration) on behalf of the Vendor;
(biv) deliver to the Vendor's Solicitors a counterpart of Company the Tax Covenant Shareholders’ Agreement and the Share Restriction Agreement duly executed by the Purchaser;
(c) if requested, and at the Vendor's cost, deliver to the Vendor's Solicitors a legal opinion in a form reasonably satisfactory to the Vendor as to the validity and enforceability of the guarantee contained within Clause 11 of this Agreement and if such opinion is that such guarantee is not valid and enforceable such amendments shall be made to the guarantee as render it valid and enforceable; and
(d) as agent for the Company, repay the Inter-Company Debt by bankers draft to the Vendor's Solicitors (who are hereby irrevocably authorised to receive that payment) on behalf of the Vendor and its subsidiaries and Associates. The delivery of a bankers draft to the Vendor's Solicitors shall be a full and sufficient discharge to the Purchaser for the monies payable on Completion and the Purchaser shall not be concerned to see to the application of any payment by the Purchaser under this Clause 4.3Subscriber.
4.4 If all the provisions of Clause 4.2 are not complied with in full on Completion the Purchaser may:
(a) defer Completion to a date not more than 28 days after the date specified in Clause 4.1 in which event the provisions of this Clause 4.4 shall apply to Completion as so deferred; or
(b) proceed to Completion so far as practicable without prejudice to its rights under this Agreement or otherwise and so that any provision of Clause 4.2 which may not have been complied with at Completion shall at the sole discretion of the Purchaser be held over to such future date or dates as the Purchaser may in its sole discretion determine; or
(c) terminate this Agreement (save for Clauses 12, 13, 14 and 20, which shall remain in full force and effect) provided that such termination shall not affect the rights and obligations of the parties which have accrued prior to termination and shall not limit or exclude any other rights or remedies of the Purchaser in respect of any failure by the Vendor to comply with the requirements of Clause 4.2 on the due date.
4.5 The Vendor shall use all reasonable endeavours to procure compliance with the provisions of Clause 4.2 on any date set for Completion in accordance with this Agreement.
4.6 The Vendor undertakes to and covenants with the Purchaser (for itself and as trustee for the Company) that if, after Completion, it is discovered that the Company had on or before Completion given or undertaken any guarantees, indemnities or similar securities in respect of the obligations or liabilities of any person other than the Company and such guarantees, indemnities or similar securities were not finally and unconditionally released on or before Completion, the Vendor will fully indemnify the Purchaser and the Company and keep each of them fully indemnified on demand against all claims, demands, actions, proceedings, damages, losses, costs, expenses or liabilities suffered or incurred by the Purchaser or the Company under or in connection with such guarantees, indemnities or similar obligations.
Appears in 1 contract
Sources: Share Subscription Agreement
Completion. 4.1 5.1 Completion shall take place at or before 1:00 p.m. on the offices Completion Date at the office of the Purchaser's ’s Solicitors immediately following the signing of this Agreement or at such other place or and time as shall be mutually agreed between the Vendor and Parties in writing (time in either case being of the Purchaser may agreeessence) subject to the satisfaction of all (but not some only) Conditions Precedents.
4.2 5.2 At Completion (or such other date as hereinafter specified), the Vendor shall procure:deliver or cause to be delivered to the Purchaser: -
(a) the delivery to the Purchaser duly executed instrument of duly completed transfer and executed transfers sold notes in respect of the Shares by the registered holders of the Sale Shares in favour of the Purchaser (or its nominees nominee(s)) together with valid the share certificates representing certificate(s) for the Shares and all (if any) other documents required to give good title to the Sale Shares;
(b) the delivery to the Purchaser of all powers of attorney or other authorities under which the instrument of transfer and sold notes in the agreed form duly executed by the registered holders respect of the Sale Shares, the Deed of Assignment (if any) and the Deed of Indemnity have been executed (if any);
(c) the delivery to resignation letters duly signed by (unless the Purchaser Parties otherwise agree in writing) all existing director, secretary, designated representative, responsible officer and auditors of the Tax Covenant duly executed by Company resigning from their respective offices of the VendorCompany confirming that they have no right or claim of whatsoever nature against the Company for loss of office, redundancy, unfair dismissal or breach of contract or on any other ground whatsoever and unconditionally and irrevocably waives whatever sums due to them from the Company, in such form set out in Schedule 4;
(d) the delivery duly completed and signed prescribed forms for the notification of the resignation of directors and secretary to the Companies Registry (Form ND4);
(e) (if there is Sale Debt upon Completion) the Deed of Assignment duly executed by the Vendor and the Company (in duplicate);
(f) the Deed of Indemnity duly executed by the Vendor and the Company (in duplicate);
(g) the written resolutions of the sole director of the Company approving the followings: -
(A) the transfer of the Sale Shares and the issue of share certificate to the Purchaser (or its nominee(s)) and the entry of the following, each duly executed and in form and substance satisfactory to the Purchaser:-
(i) a deed of release given in relation to the Company Guarantee;
(ii) a deed of release by each person holding or being entitled to any Encumbrance over the Shares or any name of the assets Purchaser (or its nominee(s)) in the register of members of the Company;
(iiiB) a deed the resignation of waiver by all the Vendor waiving any claim it or any of its subsidiaries or Associates may have against the Company;
(iv) deeds of waiver by each co-guarantor directors, secretary, designated representative, responsible officer and auditors of the Company as mentioned in respect of the Company Guarantee;
(e) the delivery to the Purchaser of the statutory books (duly written up to dateClause 5.2(c) and the certificate(sappointment of such person(s) of incorporation as the Purchaser may nominate as director(s), secretary, designated representative and responsible officer of the Company;
(fC) the delivery entering into and authorization of the execution by such person(s) on behalf of the Company of the Deed of Assignment (if any) and Deed of Indemnity;
(D) change the situation of the registered office of the Company to such place(s) as the Purchaser may nominate;
(E) amendment of all current cheque books authorities and deposit books relating to mandates for the operation of the Bank Accounts in such manner as the Purchaser shall have requested;
(F) any other matters as reasonably required by the Purchaser;
(h) the Audited Accounts and all bank other audited accounts of the Company;
(gi) the delivery to the Purchaser of all documents of title relating to the Properties;
(h) the delivery to the Purchaser of copies of the minutes of the meetings of the boards of directors of the Vendor in the agreed form, authorising (in each case) the entry into of the transaction the subject of this Agreement, approving this Agreement and any other agreements or documents to be executed pursuant to or in connection with it and appointing the relevant signatory to sign this Agreement and such other agreements and documents on their behalf Completion Accounts certified by the company secretary sole director of the Vendor together with (in each case) confirmation, in the agreed form, from the company secretary that the authority conferred remains valid at Completion;
(i) the passing of effective resolutions of the Directors resolving to register the transfers of the Shares subject only to stamping of the share transfersCompany;
(j) the completed and signed Form IRSD 102 (at the cost Schedule of the Vendor) the convening and holding of all such meetings, the passing of all such resolutions, the execution and delivery of all such documents and the taking of all other action to the extent reasonably necessary in order to complete the transfer of title to the Shares to the Purchaser free from all Encumbrances and to enable the Purchaser to exercise and receive all rights and benefits attaching to or arising from the SharesLanded Properties);
(k) with effect from Completion, the appointment as directors and secretary certificate of incumbency of the Company of such person or persons as Vendor issued by its registered agent dated not more than seven (7) Business Days prior to the Purchaser shall have nominated and the resignation of each of the Directors (except ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ and ▇▇▇▇ ▇▇▇▇▇) and the secretary of the Company by delivery of a letter under seal from each such Director and the secretary resigning from his offices and from any employment he may have with the Company with effect from Completion and acknowledging that he has no claim against the Company either actual or contingent in respect of any cause matter or thing (statutory or otherwise)Date;
(l) the resignation certificate of good standing of the auditors Vendor issued by the Registrar of the Company Companies of BVI dated not more than seven (without compensation for loss of office or any other claim save for proper professional fees for services rendered in respect of their duties as auditors 7) Business Days prior to the completion of the 1997 Audit) with effect from completion of the 1997 Audit and the delivery of a statement by them that there are no circumstances connected with their ceasing to hold office which they consider should be brought to the attention of the members or creditors of the CompanyCompletion Date;
(m) revocation of all existing authorities the legal opinion relating to the bankers Vendor, its establishment and existence in its place of the Company relating to bank accounts incorporation, its execution of this Agreement and the grant of authority to such persons other matters as the Purchaser may nominate reasonably require from a qualified lawyer in BVI acceptable to operate the samePurchaser and at the sole costs and expenses of the Vendor and such legal opinion shall be in such form and substance acceptable to the Purchaser;
(n) that all booksthe statutory books (which shall be duly made up to date but excluding the Completion Date) and other books and records, finanical statements, certificate of incorporation, business registration certificates, the share certificate book containing all unused share certificates, common seal and authorised signatory chops and any other papers, correspondences, records and files documents of the Company (including in the case of any of the aforementioned which are kept or maintained in its possession computer or under its control otherwise electronically, such printouts, disks, tapes and where any such are not at the Properties that other copies as the Purchaser is given details of their whereabouts and any necessary authority to collect themmay reasonably require);
(o) all documents (whether in paper or electronic form) related to the delivery Company, as requested by the Purchaser's Solicitors and agreed upon by the Vendor during the due diligence investigation;
(p) all documents pertaining to the Insurance Intermediary License;
(q) [evidence showing that the Tenancy Agreement has been terminated and that all deposits paid in connection therewith have been returned to the Company without any disputes];
(r) all items and documents in relation to the Bank Accounts including but not limited to bank passbook (if any), bank statements, cheque book and security code/device giving access to e-banking account (if any), etc; and
(s) such other documents as may be required to give to the Purchaser of duly completed and executed transfers of all shares in good title to the capital of Firstpoint Services Limited not registered in Sale Shares and/or the name of the Company, the statutory books and common seal Sale Debt (if any) of Firstpoint Services Limited and certificates for all and/or to enable the Purchaser or its nominee(s) to become the registered holder of the issued shares in Firstpoint Services LimitedSale Shares and the legal and beneficial owner of the Sale Debt (if any).
4.3 Immediately following fulfilment of all the matters referred to in Clause 4.2 the Purchaser shall:
(a) procure that that part of the Consideration payable in cash on Completion is paid by bankers draft to the Vendor's Solicitors (who are hereby irrevocably authorised to receive that consideration) on behalf of the Vendor;
(b) deliver to the Vendor's Solicitors a counterpart of the Tax Covenant duly executed by the Purchaser;
(c) if requested5.3 At Completion, and at the Vendor's cost, deliver to the Vendor's Solicitors a legal opinion in a form reasonably satisfactory to the Vendor as to the validity and enforceability of the guarantee contained within Clause 11 of this Agreement and if such opinion is that such guarantee is not valid and enforceable such amendments shall be made to the guarantee as render it valid and enforceable; and
(d) as agent for the Company, repay the Inter-Company Debt by bankers draft to the Vendor's Solicitors (who are hereby irrevocably authorised to receive that payment) on behalf of the Vendor and its subsidiaries and Associates. The delivery of a bankers draft to the Vendor's Solicitors shall be a full and sufficient discharge to the Purchaser for the monies payable on Completion and the Purchaser shall not be concerned to see to the application of any payment by the Purchaser under this Clause 4.3.
4.4 If all the provisions of Clause 4.2 are not complied with in full on Completion the Purchaser may:
(a) defer Completion to a date not more than 28 days after the date specified in Clause 4.1 in which event the provisions of this Clause 4.4 shall apply to Completion as so deferred; or
(b) proceed to Completion so far as practicable without prejudice to its rights under this Agreement or otherwise and so that any provision of Clause 4.2 which may not have been complied with at Completion shall at the sole discretion of the Purchaser be held over to such future date or dates as the Purchaser may in its sole discretion determine; or
(c) terminate this Agreement (save for Clauses 12, 13, 14 and 20, which shall remain in full force and effect) provided that such termination shall not affect the rights and obligations of the parties which have accrued prior to termination and shall not limit or exclude any other rights or remedies of the Purchaser in respect of any failure by the Vendor to comply with the requirements of Clause 4.2 on the due date.
4.5 The Vendor shall use all reasonable endeavours to procure against compliance with the provisions of Clause 4.2 on any date set for Completion in accordance with this Agreement.
4.6 The Vendor undertakes to and covenants with 5.2, the Purchaser shall: -
(for itself a) cause to be issued the Consideration Shares in favour of the Vendor (or its nominee(s)) and as trustee for deliver the Companyfollowings to the Vendor: -
(i) that if, after Completion, it is discovered that an irrevocable letter of undertaking from a director of TRX CAY to deliver to the Company had on or before Vendor within 30 Business Days from the Completion given or undertaken any guarantees, indemnities or similar securities Date the evidence in respect of the obligations or liabilities issuance and allotment of any person other than the Company Consideration Shares duly executed by TRX CAY’s director for purposes of issuing and such guarantees, indemnities or similar securities were not finally and unconditionally released on or before Completion, allotting the Consideration Shares in favour of the Vendor will fully indemnify the Purchaser and the Company and keep each of them fully indemnified on demand against all claims, demands, actions, proceedings, damages, losses, costs, expenses (or liabilities suffered or incurred by the Purchaser or the Company under or in connection with such guarantees, indemnities or similar obligations.its nominee(s));
Appears in 1 contract
Sources: Agreement for Sale and Purchase (Tian Ruixiang Holdings LTD)
Completion. 4.1 Completion shall take place at the offices of the Purchaser's Solicitors immediately following the signing of this Agreement or Boekel De Nerée N.V. in Amsterdam, Gustav Mahlerplein 2, 1028 MA, at such other place or time as the Vendor and the Purchaser may agree18 July 2007.
4.2 At On Completion the Vendor Parties shall procure:ensure that the following takes place:-
(a) the delivery Seller NL shall deliver to the Purchaser the resolution of duly completed its general meeting of shareholders and executed transfers of the Shares by the registered holders of the Shares in favour of the Purchaser or its nominees together with valid share certificates representing the Shares and all (if any) other documents required to give good title to the SharesSupervisory Board, authorising Completion;
(b) the delivery Seller UK shall deliver to the Purchaser the resolution of powers its board of attorney in the agreed form duly executed by the registered holders of the Sharesdirectors authorising Completion;
(c) the delivery to Purchaser and the Purchaser of Sellers shall enter into the Tax Covenant duly executed by the VendorSES Escrow Agreement;
(d) Seller NL shall resign as Managing Director (“bestuurder”) of SES and the delivery to the Purchaser Supervisory Director (“commissaris”) of the following, each duly executed SES shall resign and in form and substance satisfactory to the Purchaser:-
(i) shall be replaced by a deed of release given in relation to the Company Guarantee;
(ii) a deed of release by each person holding or being entitled to any Encumbrance over the Shares or any of the assets of the Company;
(iii) a deed of waiver Supervisory Board appointed by the Vendor waiving any claim it or any of its subsidiaries or Associates may have against the Company;
(iv) deeds of waiver by each co-guarantor of the Company in respect of the Company GuaranteePurchaser;
(e) the delivery to Seller NL and the Purchaser of shall ensure the statutory books (duly written up to date) and the certificate(s) of incorporation of the Company;
(f) the delivery to the Purchaser of all current cheque books and deposit books relating to all bank accounts of the Company;
(g) the delivery to the Purchaser of all documents of title relating to the Properties;
(h) the delivery to the Purchaser of copies of the minutes of the meetings of the boards of directors of the Vendor in the agreed form, authorising (in each case) the entry into of the transaction the subject of this Agreement, approving this Agreement and any other agreements or documents to be executed pursuant to or in connection with it and appointing the relevant signatory to sign this Agreement and such other agreements and documents on their behalf certified by the company secretary of the Vendor together with (in each case) confirmation, in the agreed form, from the company secretary that the authority conferred remains valid at Completion;
(i) the passing of effective resolutions of the Directors resolving to register the transfers of the Shares subject only to stamping execution of the share transfers;
(j) (at transfer deed before the cost of the Vendor) the convening and holding of all such meetingsCivil-Law notary, the passing of all such resolutions, the execution and delivery of all such documents and the taking of all other action to the extent reasonably necessary in order to complete the transfer of title to the Shares to the Purchaser free from all Encumbrances and to enable the Purchaser to exercise and receive all rights and benefits attaching to or arising from the Shares;
(k) with effect from Completion, the appointment as directors and secretary of the Company of such person or persons as the Purchaser shall have nominated and the resignation of each of the Directors (except Alexander ▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇ or his substitute of Boekel De Nerée N.V. transferring the SES Shares to the Purchaser;
(f) Seller UK shall deliver to the Purchaser an executed transfer of the Sun HML Shares in favour of the Purchaser together with the share certificate for the shares in Sun HML (or in the case of any lost certificate an indemnity reasonably satisfactory to the Purchaser in relation thereto);
(g) Seller UK shall deliver to the Purchaser a letter of resignation from ▇▇▇▇ ▇▇▇▇▇ as director of Sun HML; and
(h) Seller UK shall deliver to the Purchaser a letter of resignation from ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ and ▇▇▇▇ ▇▇▇▇▇) and as the secretary of the Company by delivery of a letter under seal from each such Director and the secretary resigning from his offices and from any employment he may have with the Company with effect from Completion and acknowledging that he has no claim against the Company either actual or contingent in respect of any cause matter or thing (statutory or otherwise);
(l) the resignation of the auditors of the Company (without compensation for loss of office or any other claim save for proper professional fees for services rendered in respect of their duties as auditors prior to the completion of the 1997 Audit) with effect from completion of the 1997 Audit and the delivery of a statement by them that there are no circumstances connected with their ceasing to hold office which they consider should be brought to the attention of the members or creditors of the Company;
(m) revocation of all existing authorities to the bankers of the Company relating to bank accounts and the grant of authority to such persons as the Purchaser may nominate to operate the same;
(n) that all books, records and files of the Company are in its possession or under its control and where any such are not at the Properties that the Purchaser is given details of their whereabouts and any necessary authority to collect them;
(o) the delivery to the Purchaser of duly completed and executed transfers of all shares in the capital of Firstpoint Services Limited not registered in the name of the Company, the statutory books and common seal (if any) of Firstpoint Services Limited and certificates for all of the issued shares in Firstpoint Services LimitedSun HML.
4.3 Immediately following fulfilment of all the matters The consideration as referred to in Clause 4.2 the Purchaser shall:
(a) procure that that part of the Consideration payable in cash on Completion is paid by bankers draft to the Vendor's Solicitors (who are hereby irrevocably authorised to receive that consideration) on behalf of the Vendor;
(b) deliver to the Vendor's Solicitors a counterpart of the Tax Covenant duly executed by the Purchaser;
(c) if requested, and at the Vendor's cost, deliver to the Vendor's Solicitors a legal opinion in a form reasonably satisfactory to the Vendor as to the validity and enforceability of the guarantee contained within Clause 11 of this Agreement and if such opinion is that such guarantee is not valid and enforceable such amendments 2.2 shall be made paid to Seller NL and Seller UK, for which payment Seller NL and Seller UK will provide a discharge.
4.4 The Sellers shall make the guarantee as render it valid and enforceable; andpayments pursuant to Clause 2.5 into the SES Escrow.
4.5 Within 10 (dten) as agent for Business Days after the CompanyCompletion Date, repay the Inter-Company Debt by bankers draft to the Vendor's Solicitors (who are hereby irrevocably authorised to receive that payment) on behalf of the Vendor and its subsidiaries and Associates. The delivery of a bankers draft to the Vendor's Solicitors shall be a full and sufficient discharge to the Purchaser for the monies payable on Completion and the Purchaser shall not be concerned provide the Sellers with all necessary information to see to complete the application of any payment by the Purchaser under this Clause 4.3.
4.4 If all the provisions of Clause 4.2 are not complied with in full on Completion the Purchaser may:
(a) defer Completion to a date not more than 28 days after the date specified in Clause 4.1 in which event the provisions of this Clause 4.4 shall apply to Completion as so deferred; or
(b) proceed to Completion so far as practicable without prejudice to its rights under this Agreement or otherwise and so that any provision of Clause 4.2 which may not have been complied with at Completion shall at the sole discretion of the Purchaser be held over to such future date or dates as the Purchaser may in its sole discretion determine; or
(c) terminate this Agreement (save for Clauses 12, 13, 14 and 20, which shall remain in full force and effect) provided that such termination shall not affect the rights and obligations of the parties which have accrued prior to termination and shall not limit or exclude any other rights or remedies of the Purchaser in respect of any failure by the Vendor to comply with the requirements of Clause 4.2 on the due date.
4.5 The Vendor shall use all reasonable endeavours to procure compliance with the provisions of Clause 4.2 on any date set for Completion in accordance with this AgreementClosing Financial Statement.
4.6 The Vendor undertakes to Sellers and covenants the Purchaser agree that following the distribution of dividend by SES as set out in Clause 3.7(b) any and all intra-group obligations of whatever nature due or owed by any of the Sellers or by any of their Affiliated Parties have been satisfied in full, with the Purchaser (for itself exception of the Transition Services Agreement, possible obligations arising out of the Asset Transfer Agreement Sun HML dated [ ] and as trustee for the Company) that ifadjustment and set off set out in Clauses 2.6 and 3.5.
4.7 In the event that, at any time after Completion, it is discovered that the Company had on or before Completion given or undertaken funds are paid to any guarantees, indemnities or similar securities in respect of the obligations Sellers that INITIALS OF SIGNATORIES were due to SES and/or Sun HML, or liabilities of any person other than the Company and such guarantees, indemnities or similar securities were not finally and unconditionally released on or before Completionvice versa, the Vendor will fully indemnify receiving Party shall immediately transmit such funds to the Purchaser Party to which such funds were due.
4.8 In the event that either Party fails to perform in accordance with the provisions set out in Clause 4.2, the non-defaulting Party may, at its election, terminate this Agreement or defer Completion for 14 days in view of granting the defaulting Party a term to remedy its default. If the defaulting party has not remedied its default within said period, the non defaulting party may waive its right or may terminate the Agreement without prejudice to any of its other rights and claims (including, even if this Agreement is terminated, any right to payment of damages). In the Company and keep each event, however, that Completion should be deferred to a date beyond 15 August 2007, this Agreement shall be terminated by operation of them fully indemnified on demand against all claims, demands, actions, proceedings, damages, losses, costs, expenses or liabilities suffered or incurred by the Purchaser or the Company under or in connection with such guarantees, indemnities or similar obligationslaw regardless of remedy still being possible.
Appears in 1 contract
Completion. 4.1 9.1 Completion shall take place at the offices of the Purchaser's Solicitors immediately following the signing of this Agreement or Wikborg Rein Advokatfirma AS. at such other place or time as the Vendor and the Purchaser may agree.
4.2 At Completion the Vendor shall procure:
(a) the delivery to the Purchaser of duly completed and executed transfers of the Shares by the registered holders of the Shares in favour of the Purchaser or its nominees together with valid share certificates representing the Shares and all (if any) other documents required to give good title to the Shares;
(b) the delivery to the Purchaser of powers of attorney in the agreed form duly executed by the registered holders of the Shares;
(c) the delivery to the Purchaser of the Tax Covenant duly executed by the Vendor;
(d) the delivery to the Purchaser of the following, each duly executed and in form and substance satisfactory to the Purchaser:-
(i) a deed of release given in relation to the Company Guarantee;
(ii) a deed of release by each person holding or being entitled to any Encumbrance over the Shares or any of the assets of the Company;
(iii) a deed of waiver by the Vendor waiving any claim it or any of its subsidiaries or Associates may have against the Company;
(iv) deeds of waiver by each co-guarantor of the Company in respect of the Company Guarantee;
(e) the delivery to the Purchaser of the statutory books (duly written up to date) and the certificate(s) of incorporation of the Company;
(f) the delivery to the Purchaser of all current cheque books and deposit books relating to all bank accounts of the Company;
(g) the delivery to the Purchaser of all documents of title relating to the Properties;
(h) the delivery to the Purchaser of copies of the minutes of the meetings of the boards of directors of the Vendor in the agreed form, authorising (in each case) the entry into of the transaction the subject of this Agreement, approving this Agreement and any other agreements or documents to be executed pursuant to or in connection with it and appointing the relevant signatory to sign this Agreement and such other agreements and documents on their behalf certified by the company secretary of the Vendor together with (in each case) confirmation, in the agreed form, from the company secretary that the authority conferred remains valid at Completion;
(i) the passing of effective resolutions of the Directors resolving to register the transfers of the Shares subject only to stamping of the share transfers;
(j) (at the cost of the Vendor) the convening and holding of all such meetings, the passing of all such resolutions, the execution and delivery of all such documents and the taking of all other action to the extent reasonably necessary in order to complete the transfer of title to the Shares to the Purchaser free from all Encumbrances and to enable the Purchaser to exercise and receive all rights and benefits attaching to or arising from the Shares;
(k) with effect from Completion, the appointment as directors and secretary of the Company of such person or persons as the Purchaser shall have nominated and the resignation of each of the Directors (except Dronning ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ , ▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ within ten Business Days after the Completion Conditions are satisfied.
9.2 At Completion in order to effect the NewCo Assets Transfer, the Seller shall immediately (and ▇▇▇▇ ▇▇▇▇▇) and shall provide documentation to the secretary Buyer evidencing that such steps have been taken to the satisfaction of the Company by delivery of a letter under seal from each such Director and the secretary resigning from his offices and from any employment he may have with the Company with effect from Completion and acknowledging that he has no claim against the Company either actual or contingent in respect of any cause matter or thing (statutory or otherwise);Buyer):
(la) take the resignation of steps set out in the auditors of NewCo Transfer Implementation Plan required in relation to NewCo Assets Transfer; and
(b) procure that NewCo, as consideration for the Company (without compensation for loss of office or any other claim save for proper professional fees for services rendered NewCo Assets Transfer, issue a promissory note as set out in respect of their duties as auditors prior Appendix 3 hereto to the completion Seller in a principal amount of USD25,000,000 (the 1997 Audit) with effect from completion of the 1997 Audit and the delivery of a statement by them that there are no circumstances connected with their ceasing to hold office which they consider should be brought to the attention of the members or creditors of the Company;“NewCo Promissory Note”).
(m) revocation of all existing authorities to the bankers of the Company relating to bank accounts and the grant of authority to such persons as the Purchaser may nominate to operate the same;
(n) that all books9.3 At Completion, records and files of the Company are in its possession or under its control and where any such are not at the Properties provided that the Purchaser is given details of their whereabouts Buyer has exercised the Share Purchase Option and any necessary authority as soon as practically possible following the NewCo Assets Transfer having occurred in accordance with clause 9.2, in order to collect them;
(o) effect the delivery to the Purchaser of duly completed and executed transfers of all shares in the capital of Firstpoint Services Limited not registered in the name of the CompanyShares Transfer, the statutory books and common seal (if any) of Firstpoint Services Limited and certificates for all of the issued shares in Firstpoint Services Limited.
4.3 Immediately following fulfilment of all the matters referred to in Clause 4.2 the Purchaser Seller shall:
(a) procure that that part deliver to the Buyer evidence of the Consideration payable in cash on Completion is paid by bankers draft authority of the individual executing the documents to the Vendor's Solicitors (who are hereby irrevocably authorised to receive that consideration) be executed and delivered for and on behalf of the VendorSeller at Completion;
(b) deliver to the Vendor's Solicitors Buyer a counterpart copy of duly signed minutes from a board meeting in NewCo approving:
(i) the registration of the Tax Covenant duly executed transfer of the Shares to the Buyer; and
(ii) acceptance of the resignations referred to in clause 9.3 (g) and the appointment of such persons nominated by the Purchaser;Buyer as directors of the NewCo with effect from Completion.
(c) if requested, and at the Vendor's cost, deliver to the Vendor's Solicitors Buyer a legal opinion in a stock transfer form reasonably satisfactory for the Shares executed by the Seller;
(d) deliver to the Vendor as Buyer the share certificate for the Shares or an indemnity, in agreed form, for any lost certificates;
(e) procure that the Shares are transferred to the validity Buyer, free and enforceability clear of any Encumbrances;
(f) deliver to the Buyer a copy of the guarantee contained within Clause 11 NewCo’s shareholder register showing that the Buyer has been registered as the owner of this Agreement the Shares, free and if such opinion is that such guarantee is not valid and enforceable such amendments shall be made to the guarantee as render it valid and enforceableclear of any Encumbrances; and
(dg) as agent for the Company, repay the Inter-Company Debt by bankers draft to the Vendor's Solicitors (who are hereby irrevocably authorised to receive that payment) on behalf letters of resignation from each of the Vendor board members of NewCo confirming that they resign from their respective offices with effect from Completion, and its subsidiaries that they waive any right to any fees and Associates. The delivery of a bankers draft to the Vendor's Solicitors shall be a full and sufficient discharge to the Purchaser for the monies payable on Completion and the Purchaser shall not be concerned to see to the application of any payment by the Purchaser under this Clause 4.3.
4.4 If all the provisions of Clause 4.2 are not complied with other claims that they may have against NewCo in full on Completion the Purchaser may:
(a) defer Completion to a date not more than 28 days after the date specified in Clause 4.1 in which event the provisions of this Clause 4.4 shall apply to Completion their capacity as so deferred; or
(b) proceed to Completion so far as practicable without prejudice to its rights under this Agreement or otherwise and so that any provision of Clause 4.2 which may not have been complied with at Completion shall at the sole discretion members of the Purchaser be held over to board at such future date or dates as the Purchaser may in its sole discretion determine; or
(c) terminate this Agreement (save for Clauses 12, 13, 14 and 20, which shall remain in full force and effect) provided that such termination shall not affect the rights and obligations of the parties which have accrued prior to termination and shall not limit or exclude any other rights or remedies of the Purchaser in respect of any failure by the Vendor to comply with the requirements of Clause 4.2 on the due datetime.
4.5 The Vendor shall use all reasonable endeavours to procure compliance with the provisions of Clause 4.2 on any date set for Completion in accordance with this Agreement.
4.6 The Vendor undertakes to and covenants with the Purchaser (for itself and as trustee for the Company) that if, after Completion, it is discovered that the Company had on or before Completion given or undertaken any guarantees, indemnities or similar securities in respect of the obligations or liabilities of any person other than the Company and such guarantees, indemnities or similar securities were not finally and unconditionally released on or before Completion, the Vendor will fully indemnify the Purchaser and the Company and keep each of them fully indemnified on demand against all claims, demands, actions, proceedings, damages, losses, costs, expenses or liabilities suffered or incurred by the Purchaser or the Company under or in connection with such guarantees, indemnities or similar obligations.
Appears in 1 contract
Sources: Agreement for Option for Sale and Purchase of Shares in Newco (Crown LNG Holdings LTD)
Completion. 4.1 7.1 Completion shall take place at the offices of the PurchaserBuyer's Solicitors immediately following the signing of this Agreement or at such other place or time as the Vendor and the Purchaser may agreeon 28th February, 2005.
4.2 7.2 At Completion the Vendor Seller shall procuredeliver or procure to be delivered to the Buyer those items set out in Schedule 3.
7.3 The Seller shall procure that the directors of each Target Group Company shall convene and at Completion hold a meeting of board of directors at which the directors shall (to the extent relevant to each such company):
(a) vote in favour of the registration of the Buyer and/or its nominee(s) as member(s) of the company in respect of the Shares (subject to the production of duly stamped transfers);
(b) revoke all existing mandates for the operation of bank accounts and issue new mandates giving authority to persons nominated by the Buyer;
(c) change the registered office of the company to such place as is nominated by the Buyer;
(d) change the financial year end of the company to 31st December;
(e) appoint such persons as the Buyer may nominate as directors, secretary and auditors of the company with immediate effect and approve the resignations of such persons as directors, secretary and auditors as may be required by the Buyer;
(f) convene an extraordinary general meeting of the company to consider a resolution to adopt Articles of Association in a form approved by the Buyer;
(g) approve and authorise the execution by the company of the Tax Deed; and
(h) approve and authorise the execution by the company of any of the Service Agreements (if any) to which it is a party.
7.4 The Warrantors and the Seller shall procure at Completion:
(a) the delivery payment of all monies owing to the Purchaser of duly completed and executed transfers of the Shares each Target Group Company (whether then due for payment or not) by the registered holders Seller or the Warrantors or any director of the Shares in favour any Target Group Company or by any of the Purchaser them or its nominees together with valid share certificates representing the Shares and all (if any) other documents required to give good title to the Sharesany Connected Person;
(b) the delivery to release of any and all guarantees or indemnities or security given by any Target Group Company for or on behalf of the Purchaser Seller or the Warrantors or for or on behalf of powers any director of attorney in any Target Group Company or for or on behalf of any of them or any Connected Person.
7.5 The Seller and the agreed form duly executed Warrantors shall procure at Completion that:
(a) any Intellectual Property or Know-How owned, used or held by the registered holders Warrantors or the Seller Group is assigned or otherwise transferred to one of the SharesTarget Group Companies;
(cb) the delivery to the Purchaser of the Tax Covenant duly executed by the Vendor;
(d) the delivery to the Purchaser of the following, each duly executed and in form and substance satisfactory to the Purchaser:-
(i) a deed of release given in relation to the Company Guarantee;
(ii) a deed of release by each person holding or being entitled to any Encumbrance over the Shares or any of the assets of the Company;
(iii) a deed of waiver by the Vendor waiving any claim it or any of its subsidiaries or Associates may have against the Company;
(iv) deeds of waiver by each co-guarantor of the Company in respect of the Company Guarantee;
(e) the delivery to the Purchaser of the statutory books (duly written up to date) and the certificate(s) of incorporation of the Company;
(f) the delivery to the Purchaser of all current cheque books and deposit books relating to all bank accounts of the Company;
(g) the delivery to the Purchaser of all documents of title relating to the Properties;
(h) the delivery to the Purchaser of copies of the minutes of the meetings of the boards of directors of the Vendor in the agreed form, authorising (in each case) the entry into of the transaction the subject of this Agreement, approving this Agreement and any other agreements or documents to be executed pursuant to or in connection with it and appointing the relevant signatory to sign this Agreement and such other agreements and documents on their behalf certified by the company secretary of the Vendor together with (in each case) confirmation, in the agreed form, from the company secretary that the authority conferred remains valid at Completion;
(i) the passing of effective resolutions of the Directors resolving to register the transfers of the Shares subject only to stamping of the share transfers;
(j) (at the cost of the Vendor) the convening and holding of all such meetings, the passing of all such resolutions, the execution and delivery of all such documents and the taking of all other action to the extent reasonably necessary in order to complete the transfer of title to the Shares to the Purchaser free from all Encumbrances and to enable the Purchaser to exercise and receive all rights and benefits attaching to or arising from the Shares;
(k) with effect from Completion, the appointment as directors and secretary of the Company of such person or persons as the Purchaser shall have nominated and the resignation of each of the Directors (except ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ and ▇▇▇▇ ▇▇▇▇▇) and the secretary of the Company by delivery of a letter under seal from each such Director and the secretary resigning from his offices and from any employment he may have with the Company with effect from Completion and acknowledging that he has no claim against the Company either actual or contingent in respect of any cause matter or thing (statutory or otherwise);
(l) the resignation of the auditors of the Company (without compensation for loss of office or any other claim save for proper professional fees for services rendered in respect of their duties as auditors prior to the completion of the 1997 Audit) with effect from completion of the 1997 Audit and the delivery of a statement by them that there are no circumstances connected with their ceasing to hold office which they consider should be brought to the attention of the members or creditors of the Company;
(m) revocation of all existing authorities to the bankers of the Company relating to bank accounts and the grant of authority to such persons as the Purchaser may nominate to operate the same;
(n) that all books, records and files of the Company are in its possession or under its control and where any such are not at the Properties that the Purchaser is given details of their whereabouts and any necessary authority to collect them;
(o) the delivery to the Purchaser of duly completed and executed transfers of all shares in the capital of Firstpoint Services Limited not registered in the name of the Company, the statutory books and common seal claims (if any) of Firstpoint Services Limited the Warrantors and certificates for all any member of the issued shares Seller Group in Firstpoint Services Limitedconnection with past infringements of the Intellectual Property Rights or any inventions or discoveries described therein shall be assigned to one of the Target Group Companies; and
(c) that an amount equal to the Escrow Amount is paid to the Escrow Agents who shall deal with the same in accordance with terms of the Escrow Agreement.
4.3 Immediately following fulfilment 7.6 The Seller and the Warrantors shall, and shall procure that any member of all the matters referred to in Clause 4.2 the Purchaser Seller Group shall:
(a) procure that that part assign and/or deliver to a Target Group Company any asset whatever (including bank balances, agencies or appointments) in their name or in the name of the Consideration payable in cash on Completion a company or companies controlled by them which asset is paid by bankers draft related to the Vendor's Solicitors (who are hereby irrevocably authorised to receive that consideration) Business of any Target Group Company carried on behalf of the Vendorat Completion;
(b) deliver to the Vendor's Solicitors a counterpart of the Tax Covenant duly executed by the Purchaser;
(c) if requestedirrevocably waive any claims against any Target Group Company its agents, and or employees which they may have outstanding at the Vendor's cost, deliver to the Vendor's Solicitors a legal opinion in a form reasonably satisfactory to the Vendor as to the validity and enforceability of the guarantee contained within Clause 11 of this Agreement and if such opinion is that such guarantee is not valid and enforceable such amendments shall be made to the guarantee as render it valid and enforceable; and
(d) as agent for the Company, repay the Inter-Company Debt by bankers draft to the Vendor's Solicitors (who are hereby irrevocably authorised to receive that payment) on behalf of the Vendor and its subsidiaries and Associates. The delivery of a bankers draft to the Vendor's Solicitors shall be a full and sufficient discharge to the Purchaser for the monies payable on Completion and the Purchaser shall not be concerned to see to the application of any payment by the Purchaser under this Clause 4.3Completion.
4.4 If all the provisions of Clause 4.2 are not complied with in full on Completion the Purchaser may:
(a) defer Completion to a date not more than 28 days after the date specified in Clause 4.1 in which event the provisions of this Clause 4.4 shall apply to Completion as so deferred; or
(b) proceed to Completion so far as practicable without prejudice to its rights under this Agreement or otherwise and so that any provision of Clause 4.2 which may not have been complied with at Completion shall at the sole discretion of the Purchaser be held over to such future date or dates as the Purchaser may in its sole discretion determine; or
(c) terminate this Agreement (save for Clauses 127.7 At Completion, 13, 14 and 20, which shall remain in full force and effect) provided that such termination shall not affect the rights and obligations each of the parties which have accrued prior to termination and thereto shall not limit or exclude any other rights or remedies of enter into the Purchaser in respect of any failure by the Vendor to comply with the requirements of Clause 4.2 on the due dateTax Deed.
4.5 The Vendor shall use all reasonable endeavours to procure compliance with the provisions of Clause 4.2 on any date set for Completion in accordance with this Agreement.
4.6 The Vendor undertakes to and covenants with the Purchaser (for itself and as trustee for the Company) that if, after Completion, it is discovered that the Company had on or before Completion given or undertaken any guarantees, indemnities or similar securities in respect of the obligations or liabilities of any person other than the Company and such guarantees, indemnities or similar securities were not finally and unconditionally released on or before Completion, the Vendor will fully indemnify the Purchaser and the Company and keep each of them fully indemnified on demand against all claims, demands, actions, proceedings, damages, losses, costs, expenses or liabilities suffered or incurred by the Purchaser or the Company under or in connection with such guarantees, indemnities or similar obligations.
Appears in 1 contract
Completion. 4.1 Completion shall take place on 28 February 1997 at the offices of the Purchaser's Solicitors immediately following the signing of this Agreement or at such other place or time offices as the Vendor and parties may subsequently agree when:-
4.1.1 the Purchaser may agree.
4.2 At Completion Vendors shall deliver or cause to be delivered to the Vendor shall procure:Purchaser:-
(a) the delivery to the Purchaser of duly completed and executed transfers of the Shares by the registered holders of the Shares in favour of the Purchaser or its nominees Transfers together with valid the relative share certificates representing the Shares and all (if any) other documents required to give good title to in respect of the Shares;
(b) the delivery certificate of incorporation, all certificates on change of name, the seal and statutory books of the Company made up to the Purchaser date of powers of attorney in the agreed form duly executed by the registered holders of the SharesCompletion;
(c) the delivery Leases to the Purchaser of the Tax Covenant duly executed by the VendorProperty;
(d) the delivery to if the Purchaser so requires an effective waiver by each of the following, each duly executed and in form and substance satisfactory to the Purchaser:-
(i) a deed members of release given in relation to the Company Guarantee;
(ii) a deed of release by each person holding or being entitled any rights which he may have under the Articles of Association of the Company to any Encumbrance over have the Shares or any of them offered to him for purchase and any other documents necessary to substantiate the assets right of the Company;
(iii) a deed of waiver by the Vendor waiving any claim it or any of its subsidiaries or Associates may have against the Company;
(iv) deeds of waiver by each co-guarantor transferors of the Company in respect of Shares pursuant to this Agreement to transfer the Company Guaranteesame;
(e) the delivery written confirmation pursuant to the Purchaser of the statutory books (duly written up to date) and the certificate(s) of incorporation of the CompanyClause 3.1;
(f) the delivery to the Purchaser of all current cheque books and deposit books relating to all bank accounts written resignation letters executed under seal by such of the Company;
(g) the delivery to the Purchaser of all documents of title relating to the Properties;
(h) the delivery to the Purchaser of copies of the minutes of the meetings of the boards of directors of the Vendor in the agreed form, authorising (in each case) the entry into of the transaction the subject of this Agreement, approving this Agreement and any other agreements or documents to be executed pursuant to or in connection with it and appointing the relevant signatory to sign this Agreement and such other agreements and documents on their behalf certified by the company secretary of the Vendor together with (in each case) confirmation, in the agreed form, from the company secretary that the authority conferred remains valid at Completion;
(i) the passing of effective resolutions of the Directors resolving to register the transfers of the Shares subject only to stamping of the share transfers;
(j) (at the cost of the Vendor) the convening and holding of all such meetings, the passing of all such resolutions, the execution and delivery of all such documents and the taking of all other action to the extent reasonably necessary in order to complete the transfer of title to the Shares to the Purchaser free from all Encumbrances and to enable the Purchaser to exercise and receive all rights and benefits attaching to or arising from the Shares;
(k) with effect from Completion, the appointment as directors and secretary secretaries of the Company of such person or persons as the Purchaser shall have nominated and the resignation of each of the Directors (except ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇may nominate, ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ and ▇▇▇▇ ▇▇▇▇▇) and the secretary of the Company by delivery of a letter under seal from each such Director and letter incorporating an acknowledgement that the secretary party resigning from his offices and from any employment he may have with the Company with effect from Completion and acknowledging that he has no claim against the Company either actual or contingent in respect of any cause matter or thing claims (statutory or otherwise);
(l) the resignation of the auditors of the Company (without whether for compensation for loss of office or any other claim save for proper professional fees for services rendered in respect termination of their duties as auditors prior to employment, unpaid remuneration or otherwise howsoever) against the completion Company; and
4.1.2 the Vendors shall procure that the Directors shall hold a meeting of the 1997 Audit) with effect from completion of the 1997 Audit and the delivery of a statement by them that there are no circumstances connected with their ceasing to hold office which they consider should be brought to the attention of the members or creditors of the Company;
(m) revocation of all existing authorities to the bankers Board of the Company relating to bank accounts and at which
(a) the grant of authority to Directors shall appoint such persons as the Purchaser may nominate to operate the same;
(n) that all books, records and files as directors of the Company are in its possession or under its control and where procure the resignation without compensation of any nature whatsoever of such are not at of the Properties that Directors and Secretary of the Company as the Purchaser is given details of their whereabouts and any necessary authority to collect them;
(o) the delivery to the Purchaser of duly completed and executed transfers of all shares in the capital of Firstpoint Services Limited not registered in the name of the Company, the statutory books and common seal (if any) of Firstpoint Services Limited and certificates for all of the issued shares in Firstpoint Services Limited.
4.3 Immediately following fulfilment of all the matters referred to in Clause 4.2 the Purchaser shall:
(a) procure that that part of the Consideration payable in cash on Completion is paid by bankers draft to the Vendor's Solicitors (who are hereby irrevocably authorised to receive that consideration) on behalf of the Vendormay nominate;
(b) deliver the Directors shall vote in favour of the registration of the Purchaser or its nominees as members of the Company subject to the Vendor's Solicitors a counterpart production of the Tax Covenant duly executed by the Purchaserstamped and completed Transfers;
(c) if requested, Messrs Price Waterhouse shall be appointed Auditors;
4.1.3 the Vendors shall procure the convening of an extraordinary general meeting of the Company and at the Vendor's cost, deliver passing of a special resolution to adopt new articles of association in the approved terms;
4.1.4 Subject to the Vendor's Solicitors a legal opinion performance by the Vendors of their obligations in a form reasonably satisfactory to accordance with the Vendor as to the validity and enforceability of the guarantee contained within Clause 11 foregoing provisions of this Agreement and if such opinion is that such guarantee is not valid and enforceable such amendments shall be made to the guarantee as render it valid and enforceable; and
(d) as agent for the CompanyClause 4, repay the Inter-Company Debt by bankers draft to the Vendor's Solicitors (who are hereby irrevocably authorised to receive that payment) on behalf of the Vendor and its subsidiaries and Associates. The delivery of a bankers draft to the Vendor's Solicitors shall be a full and sufficient discharge to the Purchaser for the monies payable on Completion and the Purchaser shall not be concerned allot to see to each of the application Vendors the number of any payment by the Consideration Shares of the Purchaser under this Clause 4.3.to which he is entitled hereunder and deliver the relative documents of title;
4.4 4.2 If all in any respect the provisions of Clause 4.2 sub-clauses 4.1.1, 4.1.2, 4.1.3 and 4.1.4 are not complied with in full on the date for Completion set by clause 4.1 the Purchaser may:and the Vendors as appropriate may:-
(a) 4.2.1 defer Completion to a date not more than 28 10 days after the date specified in Clause 4.1 in which event set out above (and so that the provisions of this Clause 4.4 sub-clause shall apply to Completion as so deferred); or
(b) 4.2.2 proceed to Completion so far as practicable (without prejudice to its rights under this Agreement or otherwise and so that any provision of Clause 4.2 which may not have been complied with at Completion shall at the sole discretion of the Purchaser be held over to such future date or dates as the Purchaser may in its sole discretion determinehereunder); or
(c) terminate this Agreement (save for Clauses 12, 13, 14 and 20, which shall remain in full force and effect) provided that such termination shall not affect the rights and obligations of the parties which have accrued prior to termination and shall not limit or exclude any other rights or remedies of the Purchaser in respect of any failure by the Vendor to comply with the requirements of Clause 4.2 on the due date.
4.5 The Vendor shall use all reasonable endeavours to procure compliance with the provisions of Clause 4.2 on any date set for Completion in accordance with this Agreement.
4.6 The Vendor undertakes to and covenants with the Purchaser (for itself and as trustee for the Company) that if, after Completion, it is discovered that the Company had on or before Completion given or undertaken any guarantees, indemnities or similar securities in respect of the obligations or liabilities of any person other than the Company and such guarantees, indemnities or similar securities were not finally and unconditionally released on or before Completion, the Vendor will fully indemnify the Purchaser and the Company and keep each of them fully indemnified on demand against all claims, demands, actions, proceedings, damages, losses, costs, expenses or liabilities suffered or incurred by the Purchaser or the Company under or in connection with such guarantees, indemnities or similar obligations.
Appears in 1 contract
Sources: Share Purchase Agreement (Parexel International Corp)
Completion. 4.1 4A.1 Subject to the satisfaction of the Conditions, Completion shall take place at on the offices of the Purchaser's Solicitors immediately following the signing of this Agreement or Completion Date at such other place or time as may be agreed between the Parties when all the acts and requirements set out in Clauses 4A.2 to 4A.4 shall be complied with.
4A.2 The Vendor and shall deliver to the Purchaser may agree.
4.2 At Completion all the Vendor shall procurefollowing:
(a1) the delivery to the Purchaser of duly completed standard transfer forms and executed transfers sold notes in respect of the Sale Shares duly executed by the registered holders of the Shares Vendor in favour of the Purchaser or its nominees together with valid accompanied by the relevant original share certificates representing the Shares and all (if any) other documents required to give good title to the Shares;
(b) the delivery to the Purchaser of powers of attorney in the agreed form duly executed by the registered holders of the Shares;
(c) the delivery to the Purchaser of the Tax Covenant duly executed by the Vendor;
(d) the delivery to the Purchaser of the following, each duly executed and in form and substance satisfactory to the Purchaser:-
(i) a deed of release given in relation to the Company Guarantee;
(ii) a deed of release by each person holding or being entitled to any Encumbrance over the Shares or any of the assets of the Company;
(iii) a deed of waiver by the Vendor waiving any claim it or any of its subsidiaries or Associates may have against the Company;
(iv) deeds of waiver by each co-guarantor of the Company in respect of the Company Guarantee;
(e) the delivery to the Purchaser of the statutory books (duly written up to date) and the certificate(s) of incorporation of the Company;
(f) the delivery to the Purchaser of all current cheque books and deposit books relating to all bank accounts of the Company;
(g) the delivery to the Purchaser of all documents of title relating to the Properties;
(h) the delivery to the Purchaser of copies of the minutes of the meetings of the boards of directors of the Vendor in the agreed form, authorising (in each case) the entry into of the transaction the subject of this Agreement, approving this Agreement and any other agreements or documents to be executed pursuant to or in connection with it and appointing the relevant signatory to sign this Agreement and such other agreements and documents on their behalf certified by the company secretary of the Vendor together with (in each case) confirmation, in the agreed form, from the company secretary that the authority conferred remains valid at Completion;
(i) the passing of effective resolutions of the Directors resolving to register the transfers of the Shares subject only to stamping of the share transfers;
(j) (at the cost of the Vendor) the convening and holding of all such meetings, the passing of all such resolutions, the execution and delivery of all such documents and the taking of all other action to the extent reasonably necessary in order to complete the transfer of title to the Shares to the Purchaser free from all Encumbrances and to enable the Purchaser to exercise and receive all rights and benefits attaching to or arising from the Shares;
(k) with effect from Completion, the appointment as directors and secretary of the Company of such person or persons as the Purchaser shall have nominated and the resignation of each of the Directors (except ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ and ▇▇▇▇ ▇▇▇▇▇) and the secretary of the Company by delivery of a letter under seal from each such Director and the secretary resigning from his offices and from any employment he may have with the Company with effect from Completion and acknowledging that he has no claim against the Company either actual or contingent in respect of any cause matter or thing (statutory or otherwise);
(l) the resignation of the auditors of the Company (without compensation for loss of office or any other claim save for proper professional fees for services rendered in respect of their duties as auditors prior to the completion of the 1997 Audit) with effect from completion of the 1997 Audit and the delivery of a statement by them that there are no circumstances connected with their ceasing to hold office which they consider should be brought to the attention of the members or creditors of the Company;
(m) revocation of all existing authorities to the bankers of the Company relating to bank accounts and the grant of authority to such persons as the Purchaser may nominate to operate the same;
(n) that all books, records and files of the Company are in its possession or under its control and where any such are not at the Properties that the Purchaser is given details of their whereabouts and any necessary authority to collect them;
(o) the delivery to the Purchaser of duly completed and executed transfers of all shares in the capital of Firstpoint Services Limited not registered in the name of the Company, Vendor (unless the statutory books and common seal (if any) of Firstpoint Services Limited and share certificates for all issued in the name of the issued shares in Firstpoint Services Limited.
4.3 Immediately following fulfilment of all the matters referred to in Clause 4.2 Vendor have been deposited with the Purchaser shall:before Completion under Clause 4A.7);
(a2) procure that that part copy, certified as true and complete by a director of the Consideration payable Vendor, of resolutions of its board of directors approving this Agreement and authorising a person or persons to execute the same and all other documents relating or incidental thereto (under seal, where appropriate) for and on its behalf;
(3) a banker’s draft drawn in cash on Completion is paid by bankers draft favour of The Government of the Hong Kong Special Administrative Region for the sum equivalent to the Vendor's Solicitors ’s share of stamp duty for the Sale Shares; and
(who are hereby irrevocably authorised 4) a copy, certified true and complete by a director of the AMTD Buyer, of resolutions of the board of directors of the AMTD Buyer approving this Agreement and all other transactions contemplated under this Agreement and authorising a person or persons to receive that considerationexecute the same and all other documents relating or incidental thereto (under seal where appropriate) for and on behalf of the Vendor;AMTD Buyer.
(b) 4A.3 The Purchaser shall deliver to the Vendor's Solicitors a counterpart :
(1) standard transfer form and bought notes in respect of the Tax Covenant Sale Shares duly executed by the Purchaser;
(c2) if requested, and at a banker’s draft drawn in favour of The Government of the Vendor's cost, deliver Hong Kong Special Administrative Region for the sums equivalent to the Vendor's Solicitors Purchaser’s share of stamp duty for the Sale Shares;
(3) a legal opinion in copy, certified true and complete by a form reasonably satisfactory to the Vendor as to the validity and enforceability director of the guarantee contained within Clause 11 Purchaser, of resolutions of the board of directors of the Purchaser approving this Agreement and if such opinion is that such guarantee is not valid all other transactions contemplated under this Agreement and enforceable such amendments shall be made authorising a person or persons to execute the guarantee as render it valid same and enforceableall other documents relating or incidental thereto (under seal where appropriate) for and on behalf of the Purchaser; and
(d4) as agent a copy, certified true and complete by a director of the AMTD Seller, of resolutions of the board of directors of the AMTD Seller approving this Agreement and all other transactions contemplated under this Agreement and authorising a person or persons to execute the same and all other documents relating or incidental thereto (under seal where appropriate) for the Company, repay the Inter-Company Debt by bankers draft to the Vendor's Solicitors (who are hereby irrevocably authorised to receive that payment) and on behalf of the Vendor and its subsidiaries and Associates. AMTD Seller.
4A.4 The delivery of a bankers draft AMTD Seller shall deliver to the Vendor's Solicitors shall be a full and sufficient discharge to AMTD Buyer all the Purchaser for AMTD Shares in settlement of the monies payable on Completion Consideration in accordance with Clause 3.
4A.5 The Vendor and the Purchaser shall not be concerned to see to jointly procure the application due stamping of any payment the transfer form and bought and sold notes duly executed by the Purchaser under this Clause 4.3and the Vendor within the time limit as prescribed by the Stamp Duty Ordinance (Cap. 117 of the Laws of Hong Kong) and registration of the same with the branch share registrar of the Company in Hong Kong. The Vendor and the Purchaser hereby jointly instruct and authorize the Purchaser’s legal advisers to attend the stamping of the said transfer form and bought and sold notes.
4.4 If all 4A.6 In the provisions of Clause 4.2 are not complied with in full on Completion event that the Vendor, the Purchaser or the AMTD Seller shall without reasonable ground fail to do anything required to be done by it under Clause 4A.2 (for the Vendor), Clause 4A.3 (for the Purchaser) or Clause 4A.4 (for the AMTD Seller), without prejudice to any other right or remedy available to the non-defaulting parties, the non-defaulting party may:
(a1) defer Completion to a date day not more than 28 14 days after the date specified in Clause 4.1 in which event fixed for Completion (and so that the provisions provision of this Clause 4.4 paragraph (1) shall apply to Completion as so deferred); or
(b2) proceed to Completion so far as practicable but without prejudice to its rights under this Agreement or otherwise and so the non-defaulting party’s right to the extent that any provision of Clause 4.2 which may the defaulting party shall not have been complied with at Completion shall at its obligations hereunder.
4A.7 The Parties acknowledge that the sole discretion Vendor’s application for new replacement certificates for the Sale Shares (Existing) is in process and the new original certificates or documents of title in respect of the Purchaser be held over to such future date or dates as the Purchaser may Sale Shares in its sole discretion determine; or
(c) terminate this Agreement (save for Clauses 12, 13, 14 and 20, which shall remain in full force and effect) provided that such termination shall not affect the rights and obligations name of the parties which have accrued prior to termination and shall not limit or exclude any other rights or remedies Vendor from the branch registrar of the Purchaser Company will be issued before Completion. The Vendor has agreed to grant authorisations to any of the Purchaser’s representatives or advisers as it may designate to act as authorised agents on behalf the Vendor to collect from (and, in the case of an issue by way of exchange/conversion, surrender to) and give valid receipts to the branch registrar of the Company any and all new original certificates, and other documents of title if applicable, issued in respect of any failure by and all of:
(1) the Vendor to comply with Sale Shares (Existing);
(2) the requirements of Clause 4.2 on the due date.
4.5 The Vendor shall use all reasonable endeavours to procure compliance with the provisions of Clause 4.2 on any date set Sale Shares (New) issued in exchange for Completion in accordance with this Agreement.
4.6 The Vendor undertakes to and covenants with the Purchaser (for itself and as trustee for the Company) that if, after Completion, it is discovered that the Company had on or before Completion given or undertaken any guarantees, indemnities or similar securities in respect of the obligations Sale Shares (Existing); and
(3) the Bonus Securities I and Bonus Securities II (if any) distributed to or liabilities received by the Vendor, or to which the Vendor is entitled, in respect of any person other than of the Company and such guarantees, indemnities or similar securities were not finally and unconditionally released on or before Sale Shares (Existing) and/or Sale Shares (New) from the date of this Agreement to the Completion, and, upon collection, deposit the Vendor will fully indemnify same with the Purchaser and the Company and keep each of them fully indemnified on demand against all claims, demands, actions, proceedings, damages, losses, costs, expenses or liabilities suffered or incurred by the Purchaser or the Company under or Purchaser’s lawyers in connection with such guarantees, indemnities or similar obligationsescrow pending Completion.
Appears in 1 contract
Sources: Share Purchase Agreement (Century City International Holdings Ltd.)
Completion. 4.1 7.1 Completion of the sale and purchase of the Shares shall take place at remotely on the offices Completion Date.
7.2 At Completion, the Vendors shall perform their respective obligations under this Agreement, including, without limitation, those obligations set out in Schedule 7 (Completion obligations).
7.3 When the Vendors have complied with the provisions of the Purchaser's Solicitors immediately following the signing of this Agreement or at such other place or time as the Vendor and clause 7.2 (Completion), the Purchaser may agree.
4.2 At Completion the Vendor shall procureshall:
(a) deliver the delivery to the Purchaser of Completion Disclosure Letter, duly completed and executed transfers of the Shares signed by the registered holders of the Shares in favour of the Purchaser or its nominees together with valid share certificates representing the Shares and all (if any) other documents required to give good title to the SharesPurchaser;
(b) pay the delivery Completion Consideration to the Purchaser of powers of attorney relevant Vendors in the agreed form duly executed by the registered holders of the Sharesaccordance with clause 20 (Payments);
(c) the delivery to Purchaser or a duly authorised attorney of the Purchaser shall sign the Company's share register to accept the transfer of the Tax Covenant duly executed by Shares from the Vendor;
(d) the delivery hold, or procure to the Purchaser be held, a special shareholders' meeting of each of the following, each duly executed and in form and substance satisfactory to the Purchaser:-Group Companies as follows:
(i) a deed general shareholders' meeting of release given in relation each of the Group Companies for the purposes of (i) acknowledging the resignation of the relevant directors of each Group Company, (ii) granting interim discharge to the resigning directors and (iii) appointing the new directors of the Company Guarantee;and the other Group Companies. The Purchaser shall vote, or cause to be voted, at such special shareholders' meetings in favour of a resolution granting interim discharge to the resigning directors; and
(ii) the Purchaser undertakes to vote, or cause to be voted, in favour of a deed resolution granting full and final discharge to the resigning directors at the first annual shareholders' meeting of release by each person holding or being entitled to any Encumbrance over RSS for the Shares or any performance of their mandate between the start of the assets ongoing financial year and Completion. Notwithstanding the rights determined in this Agreement, the Purchaser covenants not to, and procures that the Group Companies shall not hold the resigning directors and former directors (or their permanent representatives) of the Company;
(iii) a deed of waiver by the Vendor waiving Group Companies liable for any claim it loss or any of its subsidiaries or Associates may have against the Company;
(iv) deeds of waiver by each co-guarantor of the Company in respect of the Company Guarantee;liability; and
(e) procure the delivery to the Purchaser of the statutory books (duly written up to date) and the certificate(s) of incorporation of the Company;
(f) the delivery to the Purchaser of all current cheque books and deposit books relating to all bank accounts of the Company;
(g) the delivery to the Purchaser of all documents of title relating to the Properties;
(h) the delivery to the Purchaser of copies of the minutes of the meetings of the boards of new directors of the Vendor Group Companies to hold a board meeting in order to acknowledge the agreed form, authorising (in each case) the entry into of the transaction the subject of this Agreement, approving this Agreement and any other agreements or documents to be executed pursuant to or in connection with it and appointing the relevant signatory to sign this Agreement and such other agreements and documents on their behalf certified by the company secretary of the Vendor together with (in each case) confirmation, in the agreed form, from the company secretary that the authority conferred remains valid at Completion;resignation of:
(i) the passing of effective resolutions of the Directors resolving to register the transfers of the Shares subject only to stamping of the share transfers;
(j) (at the cost of the Vendor) the convening and holding of all such meetings, the passing of all such resolutions, the execution and delivery of all such documents and the taking of all other action to the extent reasonably necessary in order to complete the transfer of title to the Shares to the Purchaser free from all Encumbrances and to enable the Purchaser to exercise and receive all rights and benefits attaching to or arising from the Shares;
(k) with effect from Completion, the appointment as directors and secretary of the Company of such person or persons as the Purchaser shall have nominated and the resignation of each of the Directors (except ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇ ▇▇▇▇▇ from the board of the Company, and (ii) ▇▇▇▇▇ ▇▇▇▇▇) ▇ from the board of RSS and the secretary of the Company by delivery of a letter under seal from each such Director appoint ▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇’▇▇▇▇▇ and the secretary resigning from his offices ▇▇▇▇▇ ▇▇▇▇▇▇▇ as new managing directors, and from any employment he may have with the Company with effect from Completion withdraw existing powers and acknowledging that he has no claim against the Company either actual or contingent in respect of any cause matter or thing (statutory or otherwise);
(l) the resignation of the auditors of the Company (without compensation for loss of office or any other claim save for proper professional fees for services rendered in respect of their duties delegate new powers as auditors prior to the completion of the 1997 Audit) with effect from completion of the 1997 Audit and the delivery of a statement by them that there are no circumstances connected with their ceasing to hold office which they consider should be brought to the attention of the members or creditors of the Company;
(m) revocation of all existing authorities to the bankers of the Company relating to bank accounts and the grant of authority to such persons as the Purchaser may nominate to operate the same;
(n) that all books, records and files of the Company are in its possession or under its control and where any such are not at the Properties that the Purchaser is given details of their whereabouts and any necessary authority to collect them;
(o) the delivery to the Purchaser of duly completed and executed transfers of all shares in the capital of Firstpoint Services Limited not registered in the name of the Company, the statutory books and common seal (if any) of Firstpoint Services Limited and certificates for all of the issued shares in Firstpoint Services Limited.
4.3 Immediately following fulfilment of all the matters referred to in Clause 4.2 the Purchaser shall:
(a) procure that that part of the Consideration payable in cash on Completion is paid by bankers draft to the Vendor's Solicitors (who are hereby irrevocably authorised to receive that consideration) on behalf of the Vendor;
(b) deliver to the Vendor's Solicitors a counterpart of the Tax Covenant duly executed deemed appropriate by the Purchaser;.
7.4 The Purchaser shall procure that within ten (c10) if requestedBusiness Days after Completion, and at the Vendor's costregistration of each Group Company in the Belgian UBO register is updated to reflect the changes in terms of ultimate beneficial owners pursuant to this Agreement. If the Purchaser does not complete such updates within ten (10) Business Days after Completion, deliver without prejudice to Vendors' right to claim damages for such contractual breach, the Purchaser hereby grants an irrevocable power of attorney to the Vendor's Vendors and the Vendors’ Solicitors a legal opinion (and will perform any and all action and sign any and all documents/forms/notices required to implement and give effect to such power of attorney) to execute such updates in a form reasonably satisfactory to the Vendor as to the validity its name and enforceability on its behalf.
7.5 If any of the guarantee contained within Clause 11 requirements of this Agreement and if such opinion is that such guarantee is not valid and enforceable such amendments shall be made to the guarantee as render it valid and enforceable; and
clauses 7.1 or 7.3 (dCompletion) as agent for the Company, repay the Inter-Company Debt by bankers draft to the Vendor's Solicitors (who are hereby irrevocably authorised to receive that payment) on behalf of the Vendor and its subsidiaries and Associates. The delivery of a bankers draft to the Vendor's Solicitors shall be a full and sufficient discharge to the Purchaser for the monies payable on Completion and the Purchaser shall not be concerned to see to the application of any payment by the Purchaser under this Clause 4.3.
4.4 If all the provisions of Clause 4.2 are not complied with on the date set for Completion under clause 7.1 (Completion) then the Purchaser, in full on Completion the Purchaser maycase of non-compliance by any Vendor, or the Vendors in the case of non-compliance by the Purchaser, shall be entitled by written notice to the other Parties to either:
(a) defer Completion with respect to some or all of the Shares to a date not more than 28 days ten (10) Business Days after the that date specified in Clause 4.1 (in which event case the provisions of this Clause 4.4 clause shall also apply to Completion as so deferred); or
(b) to proceed to Completion so far as practicable complete the sale and purchase of the Shares, which shall be without prejudice to its any accrued rights or liabilities of either Party under this Agreement or otherwise and so Agreement.
7.6 In the event that any provision of Clause 4.2 which may not have been complied with at Completion shall at the sole discretion of the Purchaser be held over or the Vendors (as relevant) has elected to defer Completion in accordance with clause 7.5(a) (Completion), and the non-compliance has not been remedied by the defaulting Party by the tenth Business Day following notification of such future date deferred Completion, the Purchaser or dates the Vendors (as the Purchaser may in its sole discretion determine; or
(cnon-defaulting Party) shall be entitled to terminate this Agreement (save for Clauses 12with immediate effect, 13, 14 except that the Surviving Provisions and 20, which any rights or liabilities in respect of the Surviving Provisions shall remain continue in full force and effect) provided that such termination shall not affect the rights and obligations of the parties which have accrued prior to termination and shall not limit or exclude any other rights or remedies of the Purchaser in respect of any failure by the Vendor to comply with the requirements of Clause 4.2 on the due date.
4.5 The Vendor shall use all reasonable endeavours to procure compliance 7.7 Where Completion is deferred in accordance with clause 7.5(a), the provisions of Clause 4.2 on any date set for this clause 7 shall apply to Completion in accordance with this Agreementso deferred.
4.6 The Vendor undertakes to and covenants with the Purchaser (for itself and as trustee for the Company) that if, after Completion, it is discovered that the Company had on or before Completion given or undertaken any guarantees, indemnities or similar securities in respect of the obligations or liabilities of any person other than the Company and such guarantees, indemnities or similar securities were not finally and unconditionally released on or before Completion, the Vendor will fully indemnify the Purchaser and the Company and keep each of them fully indemnified on demand against all claims, demands, actions, proceedings, damages, losses, costs, expenses or liabilities suffered or incurred by the Purchaser or the Company under or in connection with such guarantees, indemnities or similar obligations.
Appears in 1 contract
Completion. 4.1 10.1 Completion shall take place at the offices of the Purchaser's Solicitors immediately following the signing of this Agreement or Wikborg Rein Advokatfirma AS. at such other place or time as the Vendor and the Purchaser may agree.
4.2 At Completion the Vendor shall procure:
(a) the delivery to the Purchaser of duly completed and executed transfers of the Shares by the registered holders of the Shares in favour of the Purchaser or its nominees together with valid share certificates representing the Shares and all (if any) other documents required to give good title to the Shares;
(b) the delivery to the Purchaser of powers of attorney in the agreed form duly executed by the registered holders of the Shares;
(c) the delivery to the Purchaser of the Tax Covenant duly executed by the Vendor;
(d) the delivery to the Purchaser of the following, each duly executed and in form and substance satisfactory to the Purchaser:-
(i) a deed of release given in relation to the Company Guarantee;
(ii) a deed of release by each person holding or being entitled to any Encumbrance over the Shares or any of the assets of the Company;
(iii) a deed of waiver by the Vendor waiving any claim it or any of its subsidiaries or Associates may have against the Company;
(iv) deeds of waiver by each co-guarantor of the Company in respect of the Company Guarantee;
(e) the delivery to the Purchaser of the statutory books (duly written up to date) and the certificate(s) of incorporation of the Company;
(f) the delivery to the Purchaser of all current cheque books and deposit books relating to all bank accounts of the Company;
(g) the delivery to the Purchaser of all documents of title relating to the Properties;
(h) the delivery to the Purchaser of copies of the minutes of the meetings of the boards of directors of the Vendor in the agreed form, authorising (in each case) the entry into of the transaction the subject of this Agreement, approving this Agreement and any other agreements or documents to be executed pursuant to or in connection with it and appointing the relevant signatory to sign this Agreement and such other agreements and documents on their behalf certified by the company secretary of the Vendor together with (in each case) confirmation, in the agreed form, from the company secretary that the authority conferred remains valid at Completion;
(i) the passing of effective resolutions of the Directors resolving to register the transfers of the Shares subject only to stamping of the share transfers;
(j) (at the cost of the Vendor) the convening and holding of all such meetings, the passing of all such resolutions, the execution and delivery of all such documents and the taking of all other action to the extent reasonably necessary in order to complete the transfer of title to the Shares to the Purchaser free from all Encumbrances and to enable the Purchaser to exercise and receive all rights and benefits attaching to or arising from the Shares;
(k) with effect from Completion, the appointment as directors and secretary of the Company of such person or persons as the Purchaser shall have nominated and the resignation of each of the Directors (except Dronning ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ , ▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ and ▇▇▇▇ ▇▇▇▇▇) and within ten Business Days after the secretary of the Company by delivery of a letter under seal from each such Director and the secretary resigning from his offices and from any employment he may have with the Company with effect from Completion and acknowledging that he has no claim against the Company either actual or contingent in respect of any cause matter or thing (statutory or otherwise);Conditions are satisfied.
(l) the resignation of the auditors of the Company (without compensation for loss of office or any other claim save for proper professional fees for services rendered in respect of their duties as auditors prior to the completion of the 1997 Audit) with effect from completion of the 1997 Audit and the delivery of a statement by them that there are no circumstances connected with their ceasing to hold office which they consider should be brought to the attention of the members or creditors of the Company;
(m) revocation of all existing authorities to the bankers of the Company relating to bank accounts and the grant of authority to such persons as the Purchaser may nominate to operate the same;
(n) that all books, records and files of the Company are in its possession or under its control and where any such are not at the Properties that the Purchaser is given details of their whereabouts and any necessary authority to collect them;
(o) the delivery to the Purchaser of duly completed and executed transfers of all shares in the capital of Firstpoint Services Limited not registered in the name of the Company10.2 At Completion, the statutory books and common seal (if any) of Firstpoint Services Limited and certificates for all of the issued shares in Firstpoint Services Limited.
4.3 Immediately following fulfilment of all the matters referred to in Clause 4.2 the Purchaser Seller shall:
(a) procure that that part of the Consideration payable in cash on Completion is paid by bankers draft deliver to the Vendor's Solicitors (who are hereby irrevocably authorised Company a notice of its intention to receive that consideration) on behalf of transfer the Vendorshares in the Company;
(b) deliver to the Vendor's Solicitors a counterpart Buyer evidence of the Tax Covenant duly executed by authority of the Purchaserindividual completing the Agreement on behalf of the Seller, as well as a board resolution and shareholder resolution of the Seller approving the Transaction;
(c) if requested, and at the Vendor's cost, deliver to the Vendor's Solicitors Buyer a legal opinion copy of duly signed minutes from a board meeting in the Company approving the transfer of the Shares to the Buyer;
(d) deliver to the Buyer a copy of the Novation Agreement executed by the Seller and the Company;
(e) deliver to the Buyer a copy of the share transfer deed in form reasonably SH-4 executed by the Seller;
(f) deliver to the Buyer and the Company a copy of Form 4 executed by the Seller;
(g) deliver share certificates or letter of allotment (as applicable) for the Shares to the Company;
(h) procure that share certificates for the Shares are issued by the Company in favour of the Buyer;
(i) procure that SH-4 and Form 4 to be duly stamped as required by Indian law;
(j) procure that the Shares are transferred to the Buyer, free and clear of any Encumbrances;
(k) deliver to the Buyer a copy of the Company’s shareholder register showing that the Buyer has been registered as the owner of the Shares, free and clear of any Encumbrances;
(l) deliver to the Buyer letters of resignation from each of the board members of the Company confirming that they resign from their respective offices with effect from Completion and that they waive any right to any fees and other claims that they may have against the Company in their capacity as members of the board at such time;
(m) deliver to the Buyer documentation satisfactory to the Vendor as Buyer evidencing (i) that the creditor rights under any Approved Shareholder Loan has been transferred to the validity Buyer from the relevant Approved Shareholder Creditor and enforceability (ii) that the Company has been notified of the guarantee contained within Clause 11 and approved such transfer of this Agreement and if creditor rights under such opinion is that such guarantee is not valid and enforceable such amendments shall be made to the guarantee as render it valid and enforceableApproved Shareholder Loan; and
(dn) as agent for the Company, repay the Inter-Company Debt by bankers draft deliver to the Vendor's Solicitors Buyer evidence of the authority of the individual completing documentation in paragraph (who are hereby irrevocably authorised to receive that paymentm) above on behalf of the Vendor Approved Shareholder Creditor, as well as a board resolution and its subsidiaries and Associates. The delivery shareholder resolution of a bankers draft to the Vendor's Solicitors shall be a full and sufficient discharge to Approved Shareholder Creditor approving the Purchaser for transfer of the monies payable on Completion and the Purchaser shall not be concerned to see to the application of any payment by the Purchaser under this Clause 4.3.
4.4 If all the provisions of Clause 4.2 are not complied with in full on Completion the Purchaser may:
(a) defer Completion to a date not more than 28 days after the date specified in Clause 4.1 in which event the provisions of this Clause 4.4 shall apply to Completion as so deferred; or
(b) proceed to Completion so far as practicable without prejudice to its creditor rights under this Agreement or otherwise and so that any provision of Clause 4.2 which may not have been complied with at Completion shall at the sole discretion of the Purchaser be held over to such future date or dates as the Purchaser may in its sole discretion determine; or
(c) terminate this Agreement (save for Clauses 12, 13, 14 and 20, which shall remain in full force and effect) provided that such termination shall not affect the rights and obligations of the parties which have accrued prior to termination and shall not limit or exclude any other rights or remedies of the Purchaser in respect of any failure by the Vendor to comply with the requirements of Clause 4.2 on the due dateApproved Shareholder Loan.
4.5 The Vendor shall use all reasonable endeavours to procure compliance with the provisions of Clause 4.2 on any date set for Completion in accordance with this Agreement.
4.6 The Vendor undertakes to and covenants with the Purchaser (for itself and as trustee for the Company) that if, after Completion, it is discovered that the Company had on or before Completion given or undertaken any guarantees, indemnities or similar securities in respect of the obligations or liabilities of any person other than the Company and such guarantees, indemnities or similar securities were not finally and unconditionally released on or before Completion, the Vendor will fully indemnify the Purchaser and the Company and keep each of them fully indemnified on demand against all claims, demands, actions, proceedings, damages, losses, costs, expenses or liabilities suffered or incurred by the Purchaser or the Company under or in connection with such guarantees, indemnities or similar obligations.
Appears in 1 contract
Completion. 4.1 7.1 Completion shall take place at the offices of the Purchaser's Seller’s Solicitors immediately following the signing of this Agreement or at such other place or time as the Vendor parties may agree on the Completion Date when all of the following business shall be transacted:
7.1.1 the Seller shall deliver to the Buyer (or, in the case of the items described in clause 7.1.1(g), 7.1.1(h) and 7.1.1(q), make available at the Purchaser may agree.
4.2 At Completion the Vendor shall procure:Company’s registered office):
(a) the delivery to the Purchaser of duly completed and executed transfers certified copies of the Shares by minutes recording the registered holders resolution of the Shares in favour board of directors of the Purchaser or its nominees together with valid share certificates representing Seller authorising the Shares sale of the Sale Share and all (if any) the other documents required to give good title to the Sharestransactions contemplated by this Agreement;
(b) a transfer in respect of the delivery to Sale Share duly executed and completed in favour of the Purchaser Buyer (or any person the Buyer nominates for this purpose), together with the certificate for the Sale Share and the duly executed power of attorney or other authority under which the transfer has been executed;
(c) irrevocable powers of attorney in the agreed form duly executed by each of the registered holders of the Shares;
(c) Sale Share in favour of the delivery Buyer to enable the Buyer to exercise all voting and other rights attaching to the Purchaser Sale Share pending registration of the Tax Covenant duly executed by transfer to the VendorBuyer or its nominee;
(d) written resignations (expressed to take effect from the delivery to the Purchaser end of the following, each duly executed and in form and substance satisfactory to the Purchaser:-
(i) a deed of release given in relation to the Company Guarantee;
(ii) a deed of release by each person holding or being entitled to any Encumbrance over the Shares or any board meeting of the assets of the Company;
(iii) a deed of waiver by the Vendor waiving any claim it or any of its subsidiaries or Associates may have against the Company;
(iv) deeds of waiver by each co-guarantor of the relevant Group Company in respect of the Company Guarantee;
(e) the delivery to the Purchaser of the statutory books (duly written up to date) and the certificate(s) of incorporation of the Company;
(f) the delivery to the Purchaser of all current cheque books and deposit books relating to all bank accounts of the Company;
(g) the delivery to the Purchaser of all documents of title relating to the Properties;
(h) the delivery to the Purchaser of copies of the minutes of the meetings of the boards of directors of the Vendor in the agreed form, authorising (in each case) the entry into of the transaction the subject of this Agreement, approving this Agreement and any other agreements or documents to be executed pursuant to or in connection with it and appointing the relevant signatory to sign this Agreement and such other agreements and documents on their behalf certified by the company secretary of the Vendor together with (in each case) confirmation, in the agreed form, from the company secretary that the authority conferred remains valid at Completion;
(i) the passing of effective resolutions of the Directors resolving to register the transfers of the Shares subject only to stamping of the share transfers;
(j) (at the cost of the Vendor) the convening and holding of all such meetings, the passing of all such resolutions, the execution and delivery of all such documents and the taking of all other action to the extent reasonably necessary in order to complete the transfer of title to the Shares to the Purchaser free from all Encumbrances and to enable the Purchaser to exercise and receive all rights and benefits attaching to or arising from the Shares;
(k) with effect from Completion, the appointment as directors and secretary of the Company of such person or persons as the Purchaser shall have nominated and the resignation of each of the Directors (except ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ and ▇▇▇▇ ▇▇▇▇▇) and the secretary ▇▇▇ of the Company by delivery of a letter under seal from each such Director and the secretary Group Company, resigning from his their respective offices and from any employment he may have with employments, in each case executed as deeds in the Company with effect from Completion and acknowledging that he has no claim against the Company either actual or contingent in respect of any cause matter or thing (statutory or otherwise)agreed form;
(le) a notice of immediate resignation from the resignation auditor of each Group Company, complying in all respects with the auditors requirements of the Company (without compensation for loss of office or any other claim save for proper professional fees for services rendered in respect of their duties as auditors prior to the completion of the 1997 Audit) with effect from completion of the 1997 Audit sections 516 and the delivery of 519 CA 2006 and containing a statement by them that there are no circumstances connected with their the auditor ceasing to hold office which they consider that it considers should be brought to the attention of the members or creditors of the relevant company, accompanied by a written confirmation that such auditors have no claims for unpaid fees or expenses;
(f) duly executed transfers (in favour of such person or persons as the Buyer may direct or have directed) of all shares in the Subsidiaries not registered in the name of any Group Company, together with the certificates for those shares;
(g) (as agents for each Group Company) all its statutory and minute books, its common seal (if any), certificate of incorporation, any certificate or certificates of incorporation on change of name and other documents and records including copies of its memorandum and articles of association;
(h) the deeds and documents of title relating to the Properties;
(i) (if not already delivered) the duly executed Disclosure Letter and accompanying disclosure bundles;
(j) (if not already delivered) the duly executed Taxation Deed;
(k) evidence in a form satisfactory to the Buyer (acting reasonably and in good faith) that all Guarantees given by any Group Company in respect of liabilities of the Seller and any Seller’s Connected Person have been released;
(l) the Transitional Services Agreement duly executed by the Seller and the Company;
(m) revocation of all existing authorities evidence satisfactory to the bankers Buyer (acting reasonably and in good faith) of the Company relating capacity and authority of each person executing a document referred to bank accounts and in this clause on the grant of authority to such persons as the Purchaser may nominate to operate the sameSeller’s behalf;
(n) that releases in a form acceptable to the Seller and the Buyer (each acting reasonably and in good faith) of all booksobligations of a Group Company arising under or in connection with finance facilities and all mortgages, records charges, and files debentures granted by a Group Company, properly executed by the facility provider or chargee, together with related declarations of satisfaction (Forms 403a) sworn by a director of the Company are in its possession or under its control and where any such are not at the Properties that the Purchaser is given details of their whereabouts and any necessary authority to collect themrelevant Group Company;
(o) the delivery to the Purchaser of duly completed and executed transfers of all shares in the capital of Firstpoint Services Limited not registered in the name of the Company, the statutory books and common seal (if any) of Firstpoint Services Limited and certificates for all of the issued shares in Firstpoint Services Limited.
4.3 Immediately following fulfilment of all the matters referred to in Clause 4.2 the Purchaser shall:
(a) procure that that part of the Consideration payable in cash on Completion is paid by bankers draft to the Vendor's Solicitors (who are hereby irrevocably authorised to receive that consideration) on behalf of the Vendor;
(b) deliver to the Vendor's Solicitors a counterpart of the Tax Covenant ICC2L Addendum duly executed by the PurchaserSeller and Imagine Corporate Capital 2 Limited;
(cp) if requested, the Ancillary Costs and at Services Agreement executed by (1) the Vendor's cost, deliver to the Vendor's Solicitors a legal opinion in a form reasonably satisfactory to the Vendor as to the validity Seller and enforceability (2) Imagine Syndicate Management Limited;
(q) copies of the guarantee contained within Clause 11 of this Agreement GP Data in the form and if such opinion is that such guarantee is not valid and enforceable such amendments shall be made to the guarantee as render it valid and enforceable; and
(d) as agent for the Company, repay the Inter-Company Debt by bankers draft to the Vendor's Solicitors (who are hereby irrevocably authorised to receive that payment) on behalf of the Vendor and its subsidiaries and Associates. The delivery of a bankers draft to the Vendor's Solicitors shall be a full and sufficient discharge to the Purchaser for the monies payable on Completion and the Purchaser shall not be concerned to see to the application of any payment by the Purchaser under this Clause 4.3method determined in accordance with clause 5.11.
4.4 If all 7.1.2 the provisions of Clause 4.2 are not complied with in full on Completion the Purchaser may:
Seller shall procure (a) defer Completion to a date not more than 28 days after the date specified in Clause 4.1 in which event the provisions of this Clause 4.4 shall apply to Completion as so deferred; or
(b) proceed to Completion so far as practicable without prejudice to its rights under this Agreement or otherwise and so that any provision of Clause 4.2 which may not have been complied with at Completion shall at the sole discretion of the Purchaser be held over to such future date or dates as the Purchaser may in its sole discretion determine; or
(c) terminate this Agreement (save for Clauses 12, 13, 14 and 20, which shall remain in full force and effect) provided that such termination shall not affect the rights and obligations of the parties which have accrued prior to termination and shall not limit or exclude any other rights or remedies of the Purchaser in respect of any failure by the Vendor to comply with the requirements of Clause 4.2 on the due date.
4.5 The Vendor shall use all reasonable endeavours to procure compliance with the provisions of Clause 4.2 on any date set for Completion in accordance with this Agreement.
4.6 The Vendor undertakes to and covenants with the Purchaser (for itself and as trustee for the Companythey are able) that if, after Completion, it is discovered that the Company had on or before Completion given or undertaken any guarantees, indemnities or similar securities transfer mentioned in respect of the obligations or liabilities of any person other than the Company and such guarantees, indemnities or similar securities were not finally and unconditionally released on or before Completion, the Vendor will fully indemnify the Purchaser and the Company and keep each of them fully indemnified on demand against all claims, demands, actions, proceedings, damages, losses, costs, expenses or liabilities suffered or incurred by the Purchaser or the Company under or in connection with such guarantees, indemnities or similar obligations.clause 7.1.1
Appears in 1 contract
Completion. 4.1 5.1 Completion shall take place at the offices of the Purchaser's Solicitors immediately on the earlier of (i) the second Business Day following the signing date when all of this Agreement the Conditions shall have been fulfilled or at such other place or time waived, and (ii) September 3, 1999.
5.2 On Completion the Principal Management Employees and/or each Group Company, insofar as the Vendor and it is within their power to do, shall deliver to or, if the Purchaser may shall so agree.
4.2 At Completion , make available to the Vendor shall procure:Purchaser:-
(a) the delivery transfers in common form relating to the Purchaser of duly completed and executed transfers of all the Shares by the registered holders of the Shares duly executed in favour of the Purchaser (or its nominees together with valid as it may direct) and share certificates representing the Shares and all (if any) other documents required to give good title relating to the Shares;
(b) the delivery to the Purchaser of powers of attorney in the agreed form duly executed by the registered holders of the Shares[deliberately left blank];
(c) waivers and releases, in each case duly executed in the delivery agreed form to discharge the Company's obligations under or pursuant to (i) the Investment Agreement, (ii) the Bank Agreement, (iii) any option, right or warrant or other instrument convertible into or exchangeable for share capital of the Company, including without limitation those held by the Principal Management Employees, and (iv) any other waivers or consents by the Principal Management Employees or by any Group Company or other persons which the Purchaser has specified prior to Completion so as to enable the Purchaser or its nominees to be registered as the holders of the Tax Covenant duly executed by the VendorShares free of any Encumbrance;
(d) resignations in the delivery form to the Purchaser of the following, each be agreed duly executed and in form and substance satisfactory to the Purchaser:-
(i) a deed of release given in relation to the Company Guarantee;
(ii) a deed of release by each person holding or being entitled to any Encumbrance over the Shares or any of the assets of the Company;
(iii) a deed of waiver by the Vendor waiving any claim it or any of its subsidiaries or Associates may have against the Company;
(iv) as deeds of waiver by each co-guarantor of all the Company in respect of the Company Guarantee;
(e) the delivery to the Purchaser of the statutory books (duly written up to date) directors and the certificate(s) of incorporation of the Company;
(f) the delivery to the Purchaser of all current cheque books and deposit books relating to all bank accounts of the Company;
(g) the delivery to the Purchaser of all documents of title relating to the Properties;
(h) the delivery to the Purchaser of copies of the minutes of the meetings of the boards of directors of the Vendor in the agreed form, authorising (in each case) the entry into of the transaction the subject of this Agreement, approving this Agreement and any other agreements or documents to be executed pursuant to or in connection with it and appointing the relevant signatory to sign this Agreement and such other agreements and documents on their behalf certified by the company secretary of the Vendor together with any Group Company (in each case) confirmation, in the agreed form, from the company secretary that the authority conferred remains valid at Completion;
(i) the passing of effective resolutions of the Directors resolving to register the transfers of the Shares subject only to stamping of the share transfers;
(j) (at the cost of the Vendor) the convening and holding of all such meetings, the passing of all such resolutions, the execution and delivery of all such documents and the taking of all other action to the extent reasonably necessary in order to complete the transfer of title to the Shares to the Purchaser free from all Encumbrances and to enable the Purchaser to exercise and receive all rights and benefits attaching to or arising from the Shares;
(k) with effect from Completion, the appointment as directors and secretary of the Company of such person or persons as the Purchaser shall have nominated and the resignation of each of the Directors (except ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇ than ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇) from their offices as director or secretary of, and ▇their employment with, any Group Company;
(e) confirmations executed as deeds of all the Principal Management Employees confirming that they do not have, and will not have, any claims (whether statutory, contractual or otherwise) against any Group Company at or following the Completion, including without limitation, confirmation executed as deeds of all the directors and Principal Management Employees and the secretary of each Group Company confirming that they have no claims (whether statutory, contractual or otherwise) against any Group Company for compensation for loss of office or termination of employment or for unpaid remuneration or otherwise together with delivery to the Purchaser of all property of any Group Company in their possession or under their control;
(f) service agreements duly executed as deeds, in each case, between the Company and the Principal Management Employees in the agreed terms;
(g) the written resignations of the auditors of each Group Company containing an acknowledgment that they have no claim against any Group Company for compensation for loss of office, except for professional fees accrued up to the date of Completion or otherwise and a statement under section 394(1) of the Companies ▇▇▇ ▇▇▇▇▇) and ; or written confirmation from the secretary auditors of the each Group Company by delivery of a letter under seal from each such Director and the secretary resigning from his offices and from any employment he may confirming that were they to resign at Completion they would have with the Company with effect from Completion and acknowledging that he has no claim against the any Group Company either actual or contingent in respect of any cause matter or thing (statutory or otherwise);
(l) the resignation of the auditors of the Company (without for compensation for loss of office or any other claim save for proper office, professional fees (except for services rendered in respect of their duties as auditors prior professional fees accrued up to the completion date of the 1997 AuditCompletion) with effect from completion of the 1997 Audit or otherwise and the delivery of a statement by them that there are no circumstances connected with their ceasing to hold office which of any matters they consider believe should be brought to the attention of the members or creditors of any Group Company, or if they consider that there are no such matters a statement that there are none;
(h) the common seals, certificates of incorporation and statutory books, share certificate books and cheque books of each Group Company;
(mi) revocation of all existing authorities to the bankers extent not in the possession or under the control of the Company any Group Company, all books of account or references as to customers and/or suppliers and other records and all insurance policies in any way relating to bank accounts and or concerning the grant businesses of authority to such persons as the Purchaser may nominate to operate the sameany Group Company;
(nj) that all books, records and files of to the Company are extent not in its the possession or under its the control of any Group Company, all licences, consents, permits and where authorisations obtained by or issued to any Group Company or any other person in connection with the business carried on by any of them and such contracts, deeds or other documents (including assignments of any such are not at licences) as shall have been required by the Properties that Purchaser's Solicitors prior to the Purchaser is given details of their whereabouts and any necessary authority to collect themdate hereof;
(ok) the delivery share certificates relating to the Purchaser of duly completed and executed transfers of all shares in the capital of Firstpoint Services Limited not registered in the name of the Company, the statutory books and common seal (if any) of Firstpoint Services Limited and certificates for all of the issued shares in Firstpoint Services Limited.
4.3 Immediately following fulfilment the capital of all the matters referred to in Clause 4.2 the Purchaser shall:
(a) procure that that part each of the Consideration payable in cash on Completion is paid by bankers draft to the Vendor's Solicitors (who are hereby irrevocably authorised to receive that consideration) on behalf of the VendorSubsidiaries;
(bl) deliver a release in the terms to the Vendor's Solicitors a counterpart of the Tax Covenant be agreed duly executed by the Purchaser;
(c) if requestedas a deed, and at the Vendor's cost, deliver to the Vendor's Solicitors a legal opinion in a form reasonably satisfactory to the Purchaser, releasing each Group Company and their respective officers and employees from any liability whatsoever (actual or contingent) which may be owing to any Vendor as to by any Group Company except in the validity and enforceability ordinary course of the guarantee contained within Clause 11 of this Agreement and if such opinion is that such guarantee is not valid and enforceable such amendments shall be made to the guarantee as render it valid and enforceabletrade; and
(dm) as agent for the Companysuch other documents, repay the Inter-Company Debt by bankers draft to the Vendor's Solicitors (who are hereby irrevocably authorised to receive that payment) on behalf of the Vendor and its subsidiaries and Associates. The delivery of a bankers draft to the Vendor's Solicitors shall be a full and sufficient discharge to the Purchaser for the monies payable on Completion and the Purchaser shall not be concerned to see to the application of any payment by the Purchaser under this Clause 4.3.
4.4 If all the provisions of Clause 4.2 are not complied with in full on Completion the Purchaser may:
(a) defer Completion to a date not more than 28 days after the date specified in Clause 4.1 in which event the provisions of this Clause 4.4 shall apply to Completion as so deferred; or
(b) proceed to Completion so far as practicable without prejudice to its rights under this Agreement consents or otherwise and so that any provision of Clause 4.2 which may not have been complied with at Completion shall at the sole discretion of the Purchaser be held over to such future date or dates waivers as the Purchaser may in its sole discretion determine; or
(c) terminate this Agreement (save for Clauses 12, 13, 14 and 20, which shall remain in full force and effect) provided that such termination shall not affect the rights and obligations of the parties which have accrued prior to termination and shall not limit or exclude any other rights or remedies of the Purchaser in respect of any failure by the Vendor to comply with the requirements of Clause 4.2 on the due datereasonably request.
4.5 The Vendor shall use all reasonable endeavours to procure compliance with the provisions of Clause 4.2 on any date set for Completion in accordance with this Agreement.
4.6 The Vendor undertakes to and covenants with the Purchaser (for itself and as trustee for the Company) that if, after Completion, it is discovered that the Company had on or before Completion given or undertaken any guarantees, indemnities or similar securities in respect of the obligations or liabilities of any person other than the Company and such guarantees, indemnities or similar securities were not finally and unconditionally released on or before Completion, the Vendor will fully indemnify the Purchaser and the Company and keep each of them fully indemnified on demand against all claims, demands, actions, proceedings, damages, losses, costs, expenses or liabilities suffered or incurred by the Purchaser or the Company under or in connection with such guarantees, indemnities or similar obligations.
Appears in 1 contract
Sources: Share Purchase Agreement (Imax Corp)
Completion. 4.1 5.1 Completion shall take place at the offices of Unicom on the Purchaser's Solicitors immediately following the signing of this Agreement or Completion Date at such other place or time as the Vendor and the Purchaser Parties may agree.
4.2 5.2 At Completion the Vendor shall procureCompletion, SKT shall:
(a) the delivery deliver or procure to the Purchaser of duly completed and executed transfers of the Shares by the registered holders of the Shares in favour of the Purchaser or its nominees together with valid share certificates representing the Shares and all (if any) other documents required be delivered to give good title to the Shares;
(b) the delivery to the Purchaser of powers of attorney in the agreed form duly executed by the registered holders of the Shares;
(c) the delivery to the Purchaser of the Tax Covenant duly executed by the Vendor;
(d) the delivery to the Purchaser of the following, each duly executed and in form and substance satisfactory to the Purchaser:-Unicom:
(i) a deed copy (certified as a true copy by a director or the company secretary of release given in relation SKT) of the resolutions of the board of directors of SKT authorising the execution of, and performance by, SKT of its obligations under the Transaction Documents to the Company Guaranteewhich it is a party;
(ii) a deed certificate signed by a director of release by each person holding or being entitled to any Encumbrance over SKT confirming that all the Shares or any SKT Warranties are true and accurate and not misleading as at the date of this Agreement and as at the assets of the CompanyCompletion Date;
(iii) a deed the instrument(s) of waiver transfer and sold note(s) in respect of the Repurchase Shares duly executed by the Vendor waiving any claim it or any SKT in favour of its subsidiaries or Associates may have against the Company;Unicom; and
(iv) deeds of waiver by each co-guarantor of the Company share certificate(s) in respect of the Company Guarantee;Repurchase Shares issued in the name of SKT; and
(eb) the delivery procure its nominee on Unicom Board, Mr. Man Won Jung, to the Purchaser resign as a director of the statutory books (duly written up to date) and the certificate(s) of incorporation of the Company;
(f) the delivery to the Purchaser of all current cheque books and deposit books relating to all bank accounts of the Company;
(g) the delivery to the Purchaser of all documents of title relating to the Properties;
(h) the delivery to the Purchaser of copies of the minutes of the meetings of the boards of directors of the Vendor in the agreed form, authorising (in each case) the entry into of the transaction the subject of this Agreement, approving this Agreement and any other agreements or documents to be executed pursuant to or in connection with it and appointing the relevant signatory to sign this Agreement and such other agreements and documents on their behalf certified by the company secretary of the Vendor together with (in each case) confirmation, in the agreed form, from the company secretary that the authority conferred remains valid at Completion;
(i) the passing of effective resolutions of the Directors resolving to register the transfers of the Shares subject only to stamping of the share transfers;
(j) (at the cost of the Vendor) the convening and holding of all such meetings, the passing of all such resolutions, the execution and delivery of all such documents and the taking of all other action to the extent reasonably necessary in order to complete the transfer of title to the Shares to the Purchaser free from all Encumbrances and to enable the Purchaser to exercise and receive all rights and benefits attaching to or arising from the Shares;
(k) Unicom with effect from Completion, the appointment as directors Completion Date and secretary of the Company of such person or persons as the Purchaser shall have nominated and the resignation of each of the Directors (except ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ and ▇▇▇▇ ▇▇▇▇▇) and the secretary of the Company by delivery of a letter under seal from each such Director and the secretary resigning from his offices and from any employment he may have with the Company with effect from Completion and acknowledging to deliver an acknowledgement to Unicom that he has no claim does not have any claims whatsoever against the Company either actual or contingent in respect of any cause matter or thing (statutory or otherwise);
(l) the resignation of the auditors of the Company (without Unicom for compensation for loss of office (whether contractual, statutory or otherwise), unfair dismissal, redundancy or otherwise, he has no disagreement with the Unicom Board and he is not aware of any other claim save for proper professional fees for services rendered matters in respect of their duties as auditors prior his resignation that needs to the completion of the 1997 Audit) with effect from completion of the 1997 Audit and the delivery of a statement by them that there are no circumstances connected with their ceasing to hold office which they consider should be brought to the attention of the members or creditors shareholders of the Company;
(m) revocation of all existing authorities to the bankers of the Company relating to bank accounts and the grant of authority to such persons as the Purchaser may nominate to operate the same;
(n) that all books, records and files of the Company are in its possession or under its control and where any such are not at the Properties that the Purchaser is given details of their whereabouts and any necessary authority to collect them;
(o) the delivery to the Purchaser of duly completed and executed transfers of all shares in the capital of Firstpoint Services Limited not registered in the name of the Company, the statutory books and common seal (if any) of Firstpoint Services Limited and certificates for all of the issued shares in Firstpoint Services LimitedUnicom.
4.3 Immediately following fulfilment of all the matters referred to in Clause 4.2 the Purchaser 5.3 At Completion, Unicom shall:
(a) deliver or procure to be delivered to SKT:
(i) a copy (certified as a true copy by a director or the company secretary of Unicom) of the resolutions of the Unicom Board authorising the execution of, and performance by, Unicom of its obligations under the Transaction Documents to which it is a party; and
(ii) a certificate signed by a director of Unicom confirming that that all the Unicom Warranties are true and accurate and not misleading as at the date of this Agreement and as at the Completion Date; and
(b) give irrevocable payment instructions to its bank to pay the Consideration (less the SFC Fee and the Initial Stamp Duty Amount) in immediately available funds by electronic funds transfer in HK$ to a bank account designated by SKT in writing at least three Business Days prior to the Completion Date and shall deliver or procure to be delivered to SKT a copy of such irrevocable payment instructions.
5.4 Neither Party shall be obliged to complete the sale and purchase of any of the Repurchase Shares unless the sale and purchase of all of the Repurchase Shares is completed simultaneously.
5.5 If the provisions of Clauses 5.2 and 5.3 are not fully complied with by Unicom or SKT by or on the date set for Completion, SKT (in the case of non-compliance by Unicom) or Unicom (in the case of non-compliance by SKT) shall be entitled (in addition to and without prejudice to all other rights and remedies available to the terminating party, including the right to claim damages) by written notice to the other Party served on such date:
(a) to elect to terminate this Agreement (other than the Surviving Provisions) without liability on the part of the Consideration payable terminating party, except in cash on Completion is paid by bankers draft respect of any rights and liabilities which have accrued prior to the Vendor's Solicitors (who are hereby irrevocably authorised to receive that consideration) on behalf termination or under any of the VendorSurviving Provisions;
(b) deliver to effect Completion so far as practicable having regard to the Vendor's Solicitors a counterpart of the Tax Covenant duly executed by the Purchaser;defaults which have occurred; or
(c) if requested, and at the Vendor's cost, deliver to the Vendor's Solicitors fix a legal opinion in a form reasonably satisfactory to the Vendor as to the validity and enforceability of the guarantee contained within Clause 11 of this Agreement and if such opinion is that such guarantee is new date for Completion (not valid and enforceable such amendments shall be made to the guarantee as render it valid and enforceable; and
(d) as agent for the Company, repay the Inter-Company Debt by bankers draft to the Vendor's Solicitors (who are hereby irrevocably authorised to receive that payment) on behalf of the Vendor and its subsidiaries and Associates. The delivery of a bankers draft to the Vendor's Solicitors shall be a full and sufficient discharge to the Purchaser for the monies payable on Completion and the Purchaser shall not be concerned to see to the application of any payment by the Purchaser under this Clause 4.3.
4.4 If all the provisions of Clause 4.2 are not complied with in full on Completion the Purchaser may:
(a) defer Completion to a date not being more than 28 days five Business Days after the agreed date specified in Clause 4.1 for Completion), in which event case the foregoing provisions of this Clause 4.4 5 shall apply to Completion as so deferred; or.
5.6 Unicom shall arrange for the lodging of the instrument(s) of transfer and bought and sold notes in respect of the Repurchase Shares with the Stamp Office for stamping within the time prescribed by applicable law.
5.7 Upon completion of the stamping of the transfer of the Repurchase Shares referred to in Clause 5.6, Unicom shall cancel the Repurchase Shares and any rights attached thereto shall cease with effect from the Completion Date. By delivering the share certificate(s) in respect of the Repurchase Shares to Unicom on the Completion Date pursuant to Clause 5.2(a)(iv), SKT confirms that it irrevocably authorises Unicom to take all such actions as may be necessary or expedient for the cancellation of the Repurchase Shares and acknowledges that it shall cease to have any rights to, or interests in, the Repurchase Shares with effect from the Completion Date.
5.8 Notwithstanding anything herein to the contrary, if Completion does not take place on or before 5:00 p.m. (bHong Kong time) proceed to Completion so far on 10 November 2009 (or such other time and date as practicable without prejudice to its rights the Parties may agree in writing), this Agreement (other than the Surviving Provisions) shall automatically terminate. In such event, neither Party shall have any claim of any nature under this Agreement or otherwise and so that against the other Party (except in respect of any provision of Clause 4.2 which may not have been complied with at Completion shall at the sole discretion of the Purchaser be held over to such future date or dates as the Purchaser may in its sole discretion determine; or
(c) terminate this Agreement (save for Clauses 12, 13, 14 and 20, which shall remain in full force and effect) provided that such termination shall not affect the rights and obligations of the parties liabilities which have accrued prior to termination and shall not limit or exclude under any other rights or remedies of the Purchaser in respect of any failure by the Vendor to comply with the requirements of Clause 4.2 on the due dateSurviving Provisions).
4.5 The Vendor shall use all reasonable endeavours to procure compliance with the provisions of Clause 4.2 on any date set for Completion in accordance with this Agreement.
4.6 The Vendor undertakes to and covenants with the Purchaser (for itself and as trustee for the Company) that if, after Completion, it is discovered that the Company had on or before Completion given or undertaken any guarantees, indemnities or similar securities in respect of the obligations or liabilities of any person other than the Company and such guarantees, indemnities or similar securities were not finally and unconditionally released on or before Completion, the Vendor will fully indemnify the Purchaser and the Company and keep each of them fully indemnified on demand against all claims, demands, actions, proceedings, damages, losses, costs, expenses or liabilities suffered or incurred by the Purchaser or the Company under or in connection with such guarantees, indemnities or similar obligations.
Appears in 1 contract
Sources: Share Repurchase Agreement (CHINA UNICOM (HONG KONG) LTD)
Completion. 4.1 Completion On or before the Effective Date the respective parties shall take place at the offices following steps: A meeting of the Purchaser's Solicitors immediately following existing Directors shall be held to approve and pass the signing of this Agreement or at such other place or time as resolutions necessary to put into effect the Vendor and agreements by the Purchaser may agree.
4.2 At Completion the Vendor shall procure:
(a) the delivery Company herein contained; subject to the Purchaser of duly completed and executed transfers of the Shares by the registered holders of the Shares in favour of the Purchaser or its nominees together with valid share certificates representing the Shares and all (if any) other documents required to give good title to the Shares;
(b) the delivery to the Purchaser of powers of attorney in the agreed form duly executed by the registered holders of the Shares;
(c) the delivery to the Purchaser of the Tax Covenant duly executed by the Vendor;
(d) the delivery to the Purchaser of the following, each duly executed and in form and substance satisfactory to the Purchaser:-
(i) a deed of release given in relation to the Company Guarantee;
(ii) a deed of release by each person holding or being entitled to any Encumbrance over the Shares or any of the assets of the Company;
(iii) a deed of waiver by the Vendor waiving any claim it or any of its subsidiaries or Associates may have against the Company;
(iv) deeds of waiver by each co-guarantor of the Company in respect of the Company Guarantee;
(e) the delivery to the Purchaser of the statutory books (duly written up to date) and the certificate(s) of incorporation of the Company;
(f) the delivery to the Purchaser of all current cheque books and deposit books relating to all bank accounts of the Company;
(g) the delivery to the Purchaser of all documents of title relating to the Properties;
(h) the delivery to the Purchaser of copies of the minutes of the meetings of the boards of directors of the Vendor in the agreed form, authorising (in each case) the entry into of the transaction the subject of this Agreement, approving this Agreement and any other agreements or documents to be executed pursuant to or in connection with it and appointing the relevant signatory to sign this Agreement and such other agreements and documents on their behalf certified by the company secretary of the Vendor together with (in each case) confirmation, in the agreed form, from the company secretary that the authority conferred remains valid at Completion;
(i) the passing of effective resolutions of the Directors resolving to register the transfers of the Shares subject only to stamping of the share transfers;
(j) (at the cost of the Vendor) the convening and holding of all such meetings, the passing of all such resolutions, the execution and delivery of all such documents and the taking of all other action to the extent reasonably necessary in order to complete the transfer of title to the Shares to the Purchaser free from all Encumbrances and to enable the Purchaser to exercise and receive all rights and benefits attaching to or arising from the Shares;
(k) with effect from Completion, the appointment as directors and secretary of the Company of such person or persons as the Purchaser shall have nominated and the resignation of each of the Directors (except ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ and ▇▇▇▇ ▇▇▇▇▇) and the secretary of the Company by delivery of a letter under seal from each such Director and the secretary resigning from his offices and from any employment he may have with the Company with effect from Completion and acknowledging that he has no claim against the Company either actual or contingent in respect of any cause matter or thing (statutory or otherwise);
(l) the resignation of the auditors of the Company (without compensation for loss of office or any other claim save for proper professional fees for services rendered in respect of their duties as auditors prior to the completion of the 1997 Audit) with effect from completion of the 1997 Audit and the delivery of a statement by them that there are no circumstances connected with their ceasing to hold office which they consider should be brought to the attention of the members or creditors of the Company;
(m) revocation of all existing authorities to the bankers of the Company relating to bank accounts and the grant of authority to such persons as the Purchaser may nominate to operate the same;
(n) that all books, records and files of the Company are in its possession or under its control and where any such are not at the Properties that the Purchaser is given details of their whereabouts and any necessary authority to collect them;
(o) the delivery to the Purchaser of duly completed and executed transfers of all shares in the capital of Firstpoint Services Limited not registered in the name of the Company, the statutory books and common seal (if any) of Firstpoint Services Limited and certificates for all of the issued shares in Firstpoint Services Limited.
4.3 Immediately following fulfilment of all the matters referred to in Clause 4.2 2.1 being proposed and duly passed: The share capital of the Purchaser shall:Company shall be increased up to Kenya Shillings ……………………… … ……….. shall transfer his one share in the Company for cash at par to and the transfer shall be duly stamped and registered in the members register;
▇.▇.▇: shall be allotted Shares to make them sixty per cent (a60%) shareholders in the Company and the form of allotment shall be filed at the Companies Registry and ………… registered in the Members Register (the existing shareholders of the Company having waived their pre-emption rights); … ……….. shall be allotted Shares to make them forty per cent (40%) shareholders in the Company (in such proportions as shall be agreed between them) and the form of allotment shall be filed at the Companies Registry and registered in the Members Register (the existing shareholders of the Company having waived their pre-emption rights); … …….shall procure that that part of ………. assigns the Consideration payable in cash on Completion is paid by bankers draft Ground Licence to the Vendor's Solicitors (who are hereby irrevocably authorised to receive that consideration) on behalf of the Vendor;
(b) deliver to the Vendor's Solicitors a counterpart of the Tax Covenant duly executed by the Purchaser;
(c) if requested, and at the Vendor's cost, deliver to the Vendor's Solicitors a legal opinion in a form reasonably satisfactory to the Vendor Company as to the validity and enforceability of the guarantee contained within Clause 11 of this Agreement and if such opinion is that such guarantee is not valid and enforceable such amendments shall be made to the guarantee as render it valid and enforceable; and
(d) as agent for the Company, repay the Inter-Company Debt by bankers draft to the Vendor's Solicitors (who are hereby irrevocably authorised to receive that payment) on behalf of the Vendor and its subsidiaries and Associates. The delivery of a bankers draft to the Vendor's Solicitors shall be a full and sufficient discharge to the Purchaser for the monies payable on Completion and the Purchaser shall not be concerned to see to the application of any payment by the Purchaser under this Clause 4.3.
4.4 If all the provisions of Clause 4.2 are not complied with in full on Completion the Purchaser may:
(a) defer Completion to a date not more than 28 days after the date specified in Clause 4.1 in which event the provisions of this Clause 4.4 shall apply to Completion as so deferred; or
(b) proceed to Completion so far soon as practicable without prejudice to its rights under this Agreement or otherwise and so that any provision of Clause 4.2 which may not have been complied with at Completion shall at the sole discretion of the Purchaser be held over to such future date or dates as the Purchaser may in its sole discretion determine; or
(c) terminate this Agreement (save for Clauses 12, 13, 14 and 20, which shall remain in full force and effect) provided that such termination shall not affect the rights and obligations of the parties which have accrued prior to termination and shall not limit or exclude any other rights or remedies of the Purchaser in respect of any failure by the Vendor to comply with the requirements of Clause 4.2 on the due date.
4.5 The Vendor shall use all reasonable endeavours to procure compliance with the provisions of Clause 4.2 on any date set for Completion in accordance with this Agreement.
4.6 The Vendor undertakes to and covenants with the Purchaser (for itself and as trustee for the Company) that if, after Completion, it is discovered ; … ………shall procure and / or confirm that the Company had on or before Completion given or undertaken any guaranteesis registered for VAT, indemnities or similar securities holds valid trade and other licences from all the relevant authorities and has obtained a Person Identification Number; … ……. shall procure that the Assets are transferred to the Company by for use in respect the Business in consideration of not demanding repayment of the obligations or liabilities of any person other than moneys owed to them by as soon as practicable after Completion; … …….. shall procure that the Machines loaned to are transferred to the Company for use in the Business as soon as practicable after Completion; ………… and such guaranteesshall be appointed or confirmed (as required) as Directors and … ………….. shall resign as a Director of the Company; … ……….., indemnities Certified Public Accountants shall be appointed or similar securities were not finally confirmed (as required) as the new auditors of the Company; … …………… shall be appointed or confirmed (as required) as the new secretary of the Company; The Company shall open bank accounts with ……..Bank Limited and unconditionally released on or before Completion……….., shall be joint signatories to the Vendor will fully indemnify said accounts as shall be mutually agreed between them.
1.1.3.1 shall make two loans to the Purchaser Company being the …… Shareholders Loan and the Company and keep each of them fully indemnified on demand against all claims, demands, actions, proceedings, damages, losses, costs, expenses or liabilities suffered or incurred by the Purchaser or the Company under or in connection with such guarantees, indemnities or similar obligations.Shareholders Loan respectively;
Appears in 1 contract
Sources: Management Agreement
Completion. 4.1 6.1 Completion shall take place at the offices of the Purchaser's Vendor’s Solicitors immediately following the signing of within 21 days after this Agreement has become unconditional or at such other place or and time as shall be mutually agreed.
6.2 At Completion, the Vendor shall:
6.2.1. deliver or cause to be delivered to the Purchaser:
a. (if not previously delivered) a certified true copy of the minutes of the meeting of the board of directors of the Vendor approving this Agreement and the Purchaser may agree.execution and completion thereof and of all documents contemplated thereunder;
4.2 At Completion the Vendor shall procure:
(a) the delivery to the Purchaser b. a duly executed instrument of duly completed and executed transfers transfer in respect of the Shares by the registered holders of the Purchase Shares in favour of the Purchaser (or its nominees together with valid share nominees) accompanied by the relevant certificates representing for the Shares and Purchase Shares;
c. all powers of attorney (if any) or other documents required to give good title authorities (if any) under which the transfer in respect of the Purchase Shares have been executed;
d. duly executed transfers and sold notes in favour of the Company (or its nominees) in respect of such shares in the Subsidiaries as are registered in the names of nominee holders on behalf of the Company, together with the relevant share certificates;
e. (if not previously delivered) a certified true copy of a legal opinion prepared by a Bermudan lawyer on the procedure and legality of the Share Buyback and Cancellation of Shares to the reasonable satisfaction of the Purchaser;
f. certified true copies of all documents, included but not limited to the shareholders and board resolution, in relation to the Share Buyback and Cancellation of Shares;
(b) g. Certificate of Compliance dated the delivery to the Purchaser of powers of attorney in the agreed form duly executed Completion Date issued by the registered holders agent of the SharesCompany;
(c) h. certified copies of the delivery Register of Directors and Officers and Register of Members updated as at the Completion Date certified by the registered agent of the Company;
i. if applicable, the resignation of the Auditors as the auditors of the Company;
j. all confirmation letters in relation to agreements concerning the Company or any of its Subsidiaries which can be terminated upon a change in control of the relevant Group company being obtained from the other contracting parties confirming their agreement not to terminate such agreements by reason of the transactions contemplated under this Agreement and all notices in relation to agreements concerning the Company or any of its Subsidiaries which are required to be sent to the Purchaser other contracting parties upon a change in control of the Tax Covenant relevant Group company; k. termination documents of the two Support Services Agreement dated 31 December 2004 and 2 January 2006 respectively both made between the Company and the Vendor with effect from 30 June 2006;
l. the Deed of Indemnity and its counterparts duly executed by the Vendor;
(d) the delivery to the Purchaser of the following, each duly executed and in form and substance satisfactory to the Purchaser:-
(i) a deed of release given in relation to the Company Guarantee;
(ii) a deed of release by each person holding or being entitled to any Encumbrance over the Shares or any of the assets of the Company;
(iii) a deed of waiver by the Vendor waiving any claim it or any of its subsidiaries or Associates may have against the Company;
(iv) deeds of waiver by each co-guarantor of the Company in respect of the Company Guarantee;
(e) the delivery to the Purchaser of m. all the statutory and other books and records (including financial records) duly written up to date) date of each member of the Group and the their respective certificate(s) of incorporation incorporation, current business registration certificate(s) and common seal(s) and any other papers, records and documents of each member of the CompanyGroup;
(f) n. evidence that the delivery current and all other liabilities of any member of the Group as stated in the Accounts and the Agreed SPA Accounts, including but not limited to the Purchaser of all current cheque books Inter-group Management Fee, Inter-group SRS Expenses Stock Option, sums payable under the Group’s commission and deposit books relating bonus scheme and long-service payment and/or severance payment and/or any compensation to all bank accounts any departing officer of the Company;
(g) Group who has resigned or whose employment contract is terminated within 3 months prior and after the delivery to the Purchaser of all documents of title relating to the Properties;
(h) the delivery to the Purchaser of copies of the minutes of the meetings of the boards of directors of the Vendor in the agreed form, authorising (in each case) the entry into of the transaction the subject signing of this Agreement, approving this Agreement have been paid and any other agreements or documents to be executed pursuant to or in connection with it and appointing the relevant signatory to sign this Agreement and such other agreements and documents on their behalf certified fully settled by the company secretary Company or adequate and proper provisions or reserves have been made in the Accounts (and reflected in the Agreed SPA Accounts) for such settlement out of the Agreed Net Current Asset Value;
o. evidence that all loans (if any) or other indebtedness (if any) due or owing to any member of the Group by any of the Vendor together with (or Directors or other officers of any member of the Group have been repaid in each case) confirmation, full or adequate and proper provisions or reserves have been made in the agreed form, from accounts (and reflected in the company secretary that the authority conferred remains valid at Completion;
(iAgreed SPA Accounts) the passing of effective resolutions for such settlement out of the Directors resolving Agreed Net Current Asset Value; p. such other documents as may be required to register the transfers of the Shares subject only to stamping of the share transfers;
(j) (at the cost of the Vendor) the convening and holding of all such meetings, the passing of all such resolutions, the execution and delivery of all such documents and the taking of all other action give to the extent reasonably necessary in order to complete the transfer of Purchaser good title to the Purchase Shares to the Purchaser free from all Encumbrances and to enable the Purchaser or its nominees to exercise and receive all rights and benefits attaching become the registered holders thereof including but not limited to or arising from the Shares;
(k) with effect from Completion, the appointment as directors and secretary board resolutions of the Company approving the transfer of the Purchase Shares from the Vendor to the Purchaser and the registration thereof in the Company’s Register of Members; and q. (if not previously delivered) a copy of the Agreed SPA Account signed and confirmed by the Vendor.
6.2.2. cause such person or persons as the Purchaser shall have nominated and the resignation may nominate to be validly appointed as directors of each member of the Group and upon such appointment forthwith cause the Directors (except ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇other than the Continuing Directors to resign from their respective offices and as employees, ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ and ▇▇▇▇ ▇▇▇▇▇) and each delivering to the secretary of the Company by delivery of Purchaser a letter under seal from each such Director and in the secretary resigning from his offices and from any employment he may have with the Company with effect from Completion and form set out in Schedule 5 acknowledging that he the person so retiring has no claim against the Company either actual or contingent in respect of any cause matter or thing (statutory outstanding for compensation or otherwise);
(l) 6.2.3. cause such persons as the resignation Purchaser may nominate to be validly appointed as secretary of each member of the auditors of Group and upon such appointment forthwith cause the Company secretary (without compensation for loss of as listed in Schedules 1 and 2) to resign from his respective office or any other claim save for proper professional fees for services rendered in respect of their duties and as auditors prior employee, delivering to the completion of the 1997 Audit) with effect from completion of the 1997 Audit and the delivery of Purchaser a statement by them that there are no circumstances connected with their ceasing to hold office which they consider should be brought letter under seal similar to the attention of form set out in Schedule 5 acknowledging that the members person so retiring has no claim outstanding for compensation or creditors of otherwise; and
6.2.4. procure the Company;
(m) revocation of all existing authorities to the bankers of each member of the Company Group relating to bank accounts and procure the grant giving of authority to such persons as the Purchaser may nominate to operate the same;
(n) that all books, records and files of the Company are in its possession or under its control and where any such are not at the Properties that the Purchaser is given details of their whereabouts and any necessary authority to collect them;
(o) the delivery to the Purchaser of duly completed and executed transfers of all shares in the capital of Firstpoint Services Limited not registered in the name of the Company, the statutory books and common seal (if any) of Firstpoint Services Limited and certificates for all of the issued shares in Firstpoint Services Limited.
4.3 Immediately following fulfilment 6.3 Against delivery of all the documents and completion of the matters referred to set out in Clause 4.2 Clauses 6.2, the Purchaser shall:
(a) procure that that part 6.3.1 wire transfer the total amount of the Consideration payable in cash on Completion is paid by bankers draft to the Vendor's Solicitors Vendor (who are hereby irrevocably authorised to receive that consideration) on behalf of or such other payment method as the Vendor;Vendor may direct); and
(b) 6.3.2 deliver to the Vendor's Solicitors a counterpart Vendor the counterpart(s) of the Tax Covenant Deed of Indemnity duly executed by the Purchaser;.
(c) if requested, and at the Vendor's cost, deliver 6.4 Without prejudice to any other remedies available to the Vendor's Solicitors a legal opinion Purchaser, if in a form reasonably satisfactory to the Vendor as to the validity and enforceability of the guarantee contained within Clause 11 of this Agreement and if such opinion is that such guarantee is not valid and enforceable such amendments shall be made to the guarantee as render it valid and enforceable; and
(d) as agent for the Company, repay the Inter-Company Debt by bankers draft to the Vendor's Solicitors (who are hereby irrevocably authorised to receive that payment) on behalf of the Vendor and its subsidiaries and Associates. The delivery of a bankers draft to the Vendor's Solicitors shall be a full and sufficient discharge to the Purchaser for the monies payable on Completion and the Purchaser shall not be concerned to see to the application of any payment by the Purchaser under this Clause 4.3.
4.4 If all respect the provisions of Clause 4.2 6.2 are not complied with in full by the Vendor on the Completion Date the Purchaser may:
(a) 6.4.1 defer Completion to a date not more than 28 days date, to be mutually agreed with the Vendor after the date specified in Clause 4.1 in which event Completion Date (and so that the provisions of this Clause 4.4 6.4 shall apply to Completion as so deferred); or
(b) 6.4.2 proceed to Completion so far as practicable (without prejudice to its rights under this Agreement or otherwise and so that any provision of Clause 4.2 which may not have been complied with at Completion shall at the sole discretion of the Purchaser be held over to such future date or dates as the Purchaser may in its sole discretion determinehereunder); or
(c) terminate this Agreement (save for Clauses 12, 13, 14 and 20, which shall remain in full force and effect) provided that such termination shall not affect the rights and obligations of the parties which have accrued prior to termination and shall not limit or exclude any other rights or remedies of the Purchaser in respect of any failure by the Vendor to comply with the requirements of Clause 4.2 on the due date.
4.5 The Vendor shall use all reasonable endeavours to procure compliance with the provisions of Clause 4.2 on any date set for Completion in accordance with 6.4.3 rescind this Agreement.
4.6 The Vendor undertakes to and covenants with the Purchaser (for itself and as trustee for the Company) that if, after Completion, it is discovered that the Company had on or before Completion given or undertaken any guarantees, indemnities or similar securities in respect of the obligations or liabilities of any person other than the Company and such guarantees, indemnities or similar securities were not finally and unconditionally released on or before Completion, the Vendor will fully indemnify the Purchaser and the Company and keep each of them fully indemnified on demand against all claims, demands, actions, proceedings, damages, losses, costs, expenses or liabilities suffered or incurred by the Purchaser or the Company under or in connection with such guarantees, indemnities or similar obligations.
Appears in 1 contract
Completion. 4.1 Unless otherwise agreed Completion shall take place at the offices of the Purchaser's Solicitors immediately following on or before 2.00 p.m. on the signing of this Agreement or at such other place or time as the Vendor and the Purchaser may agreeCompletion Date.
4.2 At On Completion the Vendor shall procure:shall:-
(aA) the delivery deliver to the Purchaser of Purchaser:-
(i) duly completed and executed transfers of the Shares by the registered holders of the Shares in favour of the Purchaser or its nominees the Purchaser's nominee(s) together with valid the share certificates representing therefor or an indemnity in a form reasonably required by the Shares and all (if any) other documents required to give good title to Purchaser in the Sharescase of any missing share certificates;
(bii) the delivery to the Purchaser of extent not given in this Agreement, irrevocable powers of attorney in the agreed form duly Agreed Form executed by each of the registered holders of the Shares;
(c) Shares authorising the delivery Purchaser or its nominees to exercise all voting and other rights attaching to the Purchaser Shares until registration of the Tax Covenant duly executed by Purchaser or such nominees as the Vendor;
(dholder(s) the delivery to the Purchaser of the following, each duly executed and in form and substance satisfactory to the Purchaser:-
(i) a deed of release given in relation to the Company Guarantee;
(ii) a deed of release by each person holding or being entitled to any Encumbrance over the Shares or any of the assets of the Companythereof;
(iii) a deed share certificates in respect of waiver by all the Vendor waiving any claim it or any issued shares in the Subsidiary and duly executed transfers in blank in respect of its subsidiaries or Associates may have against all of such shares not registered in the name of the Company;
(iv) deeds the Certificate(s) of waiver by each co-guarantor Incorporation the Common Seal Minute Book Register of the Company in respect of the Company Guarantee;
(e) the delivery to the Purchaser of the statutory books Members (duly written up to date) Share Certificate book and the certificate(s) of incorporation of the Company;
(f) the delivery to the Purchaser of all current cheque books and deposit books relating to all bank accounts of the Company;
(g) the delivery to the Purchaser of all documents of title relating to the Properties;
(h) the delivery to the Purchaser of copies of the minutes of the meetings of the boards of directors of the Vendor in the agreed form, authorising (in each case) the entry into of the transaction the subject of this Agreement, approving this Agreement and any other agreements or documents to be executed pursuant to or in connection with it and appointing the relevant signatory to sign this Agreement and such other agreements and documents on their behalf certified by the company secretary of the Vendor together with (in each case) confirmation, in the agreed form, from the company secretary that the authority conferred remains valid at Completion;
(i) the passing of effective resolutions of the Directors resolving to register the transfers of the Shares subject only to stamping of the share transfers;
(j) (at the cost of the Vendor) the convening and holding of all such meetings, the passing of all such resolutions, the execution and delivery of all such documents and the taking of all other action to the extent reasonably necessary in order to complete the transfer of title to the Shares to the Purchaser free from all Encumbrances and to enable the Purchaser to exercise and receive all rights and benefits attaching to or arising from the Shares;
(k) with effect from Completion, the appointment as directors and secretary of the Company of such person or persons as the Purchaser shall have nominated and the resignation statutory records of each of the Directors Companies;
(except v) the Tax Deed duly executed as a deed by each of the Covenantors therein mentioned;
(vi) a confirmation in Agreed Form executed as a deed by each of the Vendor and Mr. ▇▇▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ and ▇▇▇▇ ▇▇▇▇▇the effect that (except as expressly therein mentioned) and the secretary of the Company by delivery of a letter under seal from each such Director and the secretary resigning from his offices and from any employment he may have with the Company with effect from Completion and acknowledging that he has no claim whether as officer employee or otherwise against any of the Company either actual or contingent Companies and that none of the Companies is in respect of any cause matter or thing (statutory or otherwise);way indebted to him; 9
(lvii) the resignation written resignations of each of the auditors Directors and the Secretary of each of the Companies, each such resignation to be executed as a deed and to confirm that the person resigning has no claims against such Company (without for compensation for loss of office or any other claim save for proper professional fees for services rendered in respect of their duties as auditors prior to otherwise;
(viii) the completion written resignations of the 1997 Audit) with effect from completion auditors of each of the 1997 Audit Companies, each such resignation to be in the form required by Section 394 of the Companies Act and to confirm that such Auditors are of the delivery of a statement by them opinion that there are no circumstances connected with their ceasing of the nature referred to hold office which they consider should in Section 394(1) of the Companies Act that need to be brought to the attention of the members or creditors of the Companysuch Company in connection with their resignation;
(mix) revocation a statement showing the balances on all bank accounts of the Group at the latest practicable date prior to Completion together with a list of all existing authorities sums received and cheques drawn in excess of (pound)1,000 for any one item since the date of the relevant statement;
(x) all cheque books and credit cards of the Group and a letter to each of the bankers of the Company relating Group, signed by sufficient duly authorised signatories, cancelling the existing mandates of the Group and authorising the bankers to bank accounts and the grant of authority to deal with such persons authorised representatives as the Purchaser may shall nominate in relation to operate the sameterms of any replacement mandates therefor;
(nxi) the title deeds to the Properties (except to the extent in the possession of mortgagees or other security holders as specifically disclosed, with reference to this Clause, in the Disclosure Letter).
(B) repay or procure the repayment in full of all amounts owing (even if not due for repayment) to the Group by the Vendor or any of his connected persons or associates and shall procure that all books, records and files guarantees or indemnities given by or binding on any of the Company are in its possession or under its control and where any such are not at the Properties that the Purchaser is given details of their whereabouts and any necessary authority to collect them;
(o) the delivery to the Purchaser of duly completed and executed transfers of all shares in the capital of Firstpoint Services Limited not registered in the name of the Company, the statutory books and common seal (if any) of Firstpoint Services Limited and certificates for all of the issued shares in Firstpoint Services Limited.
4.3 Immediately following fulfilment of all the matters referred to in Clause 4.2 the Purchaser shall:
(a) procure that that part of the Consideration payable in cash on Completion is paid by bankers draft to the Vendor's Solicitors (who are hereby irrevocably authorised to receive that consideration) on behalf of the Vendor;
(b) deliver to the Vendor's Solicitors a counterpart of the Tax Covenant duly executed by the Purchaser;
(c) if requested, and at the Vendor's cost, deliver to the Vendor's Solicitors a legal opinion in a form reasonably satisfactory to the Vendor as to the validity and enforceability of the guarantee contained within Clause 11 of this Agreement and if such opinion is that such guarantee is not valid and enforceable such amendments shall be made to the guarantee as render it valid and enforceable; and
(d) as agent for the Company, repay the Inter-Company Debt by bankers draft to the Vendor's Solicitors (who are hereby irrevocably authorised to receive that payment) on behalf of the Vendor and its subsidiaries and Associates. The delivery of a bankers draft to the Vendor's Solicitors shall be a full and sufficient discharge to the Purchaser for the monies payable on Completion and the Purchaser shall not be concerned to see to the application of any payment by the Purchaser under this Clause 4.3.
4.4 If all the provisions of Clause 4.2 are not complied with in full on Completion the Purchaser may:
(a) defer Completion to a date not more than 28 days after the date specified in Clause 4.1 in which event the provisions of this Clause 4.4 shall apply to Completion as so deferred; or
(b) proceed to Completion so far as practicable without prejudice to its rights under this Agreement or otherwise and so that any provision of Clause 4.2 which may not have been complied with at Completion shall at the sole discretion of the Purchaser be held over to such future date or dates as the Purchaser may in its sole discretion determine; or
(c) terminate this Agreement (save for Clauses 12, 13, 14 and 20, which shall remain in full force and effect) provided that such termination shall not affect the rights and obligations of the parties which have accrued prior to termination and shall not limit or exclude any other rights or remedies of the Purchaser Companies in respect of any failure by liabilities or obligations (actual or contingent) of the Vendor or any of such connected persons or associates are fully and effectively released without cost to comply with any of the requirements of Clause 4.2 on the due dateCompanies.
4.5 The Vendor shall use all reasonable endeavours to (C) procure compliance with the provisions of Clause 4.2 on any date set for Completion in accordance with this Agreement.
4.6 The Vendor undertakes to and covenants with the Purchaser (for itself and as trustee for the Company) that if, after Completion, it is discovered that the Company had on or before Completion given or undertaken any guarantees, indemnities or similar securities in respect each of the obligations or liabilities of any person other than the Company and such guaranteesVendor, indemnities or similar securities were not finally and unconditionally released on or before Completion, the Vendor will fully indemnify the Purchaser and the Company and keep each of them fully indemnified on demand against all claims, demands, actions, proceedings, damages, losses, costs, expenses or liabilities suffered or incurred by the Purchaser or the Company under or in connection with such guarantees, indemnities or similar obligations.Mr. ▇▇▇▇▇▇ ▇▇▇ Mr.
Appears in 1 contract
Sources: Agreement for Sale and Purchase of Shares (Elcom International Inc)
Completion. 4.1 Completion Part 1: What the Sellers shall take place deliver to the Buyer at Completion
1. At Completion, the offices of Sellers shall deliver or cause to be delivered to the Purchaser's Solicitors immediately Buyer the following the signing of this Agreement or at such other place or time as the Vendor documents and the Purchaser may agree.
4.2 At Completion the Vendor shall procureevidence:
(a) the delivery to the Purchaser of duly completed and executed transfers of the Sale Shares executed by the registered holders of the Shares in favour of the Purchaser Buyer or its nominees together with valid share certificates representing the Shares and all (if any) other documents required to give good title to the Sharesnominees;
(b) the delivery to share certificates for the Purchaser Sale Shares in the names of powers of attorney the registered holders or an indemnity in the agreed form duly executed by the registered holders of the Sharesfor any lost certificates;
(c) the delivery waivers, consents and other documents required to enable the Purchaser Buyer and/or its nominees to be registered as the holders of the Tax Covenant duly executed by Sale Shares including, but not limited to, those relating to limitations on transfer of shares/pre-emption rights contained in the VendorArticles of Association;
(d) an irrevocable power of attorney in agreed form given by the delivery Sellers in favour of the Buyer or its nominees to enable the Buyer (or its proxies) to exercise all voting and other rights attaching to the Purchaser Sale Shares before the transfer of the following, each duly executed and Sale Shares is registered in form and substance satisfactory to the Purchaser:-
(i) a deed register of release given in relation to the Company Guarantee;
(ii) a deed of release by each person holding or being entitled to any Encumbrance over the Shares or any of the assets of the Company;
(iii) a deed of waiver by the Vendor waiving any claim it or any of its subsidiaries or Associates may have against the Company;
(iv) deeds of waiver by each co-guarantor of the Company in respect of the Company Guaranteemembers;
(e) the delivery original of any power of attorney under which any document to be delivered to the Purchaser of the statutory books (duly written up to date) and the certificate(s) of incorporation of the CompanyBuyer under this paragraph 1 has been executed;
(f) the delivery The statutory registers and minute books (written up to the Purchaser time of all current cheque books Completion), certificate of incorporation and deposit books relating to all bank accounts any certificates of incorporation on change of name of the Company;
(g) the delivery to the Purchaser of all documents of title relating to the Properties;
(h) the delivery to the Purchaser of copies of the minutes of the meetings of the boards of directors of the Vendor written resignation, executed as a deed and in the agreed form, authorising (in each case) the entry into of the transaction the subject of this Agreement, approving this Agreement and any other agreements or documents to be executed pursuant to or in connection with it and appointing the relevant signatory to sign this Agreement and such other agreements and documents on their behalf certified by the company secretary of the Vendor together with (in each case) confirmation, in the agreed form, from the company secretary that the authority conferred remains valid at Completion;
(i) the passing of effective resolutions of the Directors resolving to register the transfers of the Shares subject only to stamping of the share transfers;
(j) (at the cost of the Vendor) the convening and holding of all such meetings, the passing of all such resolutions, the execution and delivery of all such documents and the taking of all other action to the extent reasonably necessary in order to complete the transfer of title to the Shares to the Purchaser free from all Encumbrances and to enable the Purchaser to exercise and receive all rights and benefits attaching to or arising from the Shares;
(k) with effect from Completion, the appointment as directors and secretary secretaries of the Company of such person or persons as the Purchaser shall have nominated and the resignation of each of the Directors (except ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ and ▇▇▇▇ ▇▇▇▇▇) and the secretary of the Company by delivery of a letter under seal from each such Director and the secretary resigning from his their offices and from any employment he may have with the Company with effect from Completion and in each case acknowledging under seal that he has no claim against the Company either actual or contingent in respect whether for loss of any cause matter or thing (statutory office or otherwise);
(lh) the written resignation of the auditors of the Company by:
(without compensation for loss of office or any other claim save for proper professional fees for services rendered in respect of their duties as auditors prior to the completion of the 1997 Auditi) with effect from completion of the 1997 Audit and the delivery of a statement by them that there are no circumstances connected with their ceasing to hold office the auditors´ resignation which they consider should be brought to the attention notice of the members or creditors of the Company; and
(ii) a written assurance that the resignation and statement have been, or will be, deposited at the registered office of the Company in accordance with section 394 of the Companies ▇▇▇ ▇▇▇▇;
(i) a copy of the new articles of association of the Company appropriate for filing at Companies House;
(j) a certified copy of the minutes of the board meetings held pursuant to Part 2 of this Schedule 3;
(k) in relation to the Company:
(i) statements from each bank at which it has an account, giving the balance of each account at the close of business on the last Business Day before Completion;
(ii) all cheque books in current use and written confirmation that no cheques have been written since those statements were prepared;
(iii) details of their cash book balances; and
(iv) reconciliation statements reconciling the cash book balances and the cheque books with the bank statements delivered;
(l) the Deed of Surrender.
(m) revocation of all existing authorities to the bankers of the Company relating to bank accounts and the grant of authority to such persons as the Purchaser may nominate to operate the same;The New Lease
(n) evidence, in agreed form, that all books, records and files any indebtedness or other liability of the Company are kind described in its possession or under its control and where any such are not at the Properties that the Purchaser is given details paragraph 13 of their whereabouts and any necessary authority to collect themPart 2.1 (Transactions with Warrantors) has been discharged;
(o) evidence, in agreed form, that the delivery to Company has been discharged from any responsibility for the Purchaser of duly completed and executed transfers of all shares indebtedness, or for the default in the capital performance of Firstpoint Services Limited not registered any obligation, of any other person; and
(p) all charges, mortgages, debentures and guarantees to which the Company is a party and, in the name of the Company, the statutory books relation to each such instrument and common seal (if any) of Firstpoint Services Limited and certificates for all of the issued shares in Firstpoint Services Limited.
4.3 Immediately following fulfilment of all the matters referred to in Clause 4.2 the Purchaser shallany covenants connected with it:
(ai) procure that a sealed discharge or release in the agreed form; and
(ii) a sworn and completed Form 403a (declaration that part of the Consideration payable in cash on Completion is paid by bankers draft to property or undertaking charged has been released from the Vendor's Solicitors (who are hereby irrevocably authorised to receive that consideration) on behalf of the Vendor;
(b) deliver to the Vendor's Solicitors a counterpart of the Tax Covenant duly executed by the Purchaser;
(c) if requested, and at the Vendor's cost, deliver to the Vendor's Solicitors a legal opinion in a form reasonably satisfactory to the Vendor as to the validity and enforceability of the guarantee contained within Clause 11 of this Agreement and if such opinion is that such guarantee is not valid and enforceable such amendments shall be made to the guarantee as render it valid and enforceable; and
(d) as agent for the Company, repay the Inter-Company Debt by bankers draft to the Vendor's Solicitors (who are hereby irrevocably authorised to receive that payment) on behalf of the Vendor and its subsidiaries and Associates. The delivery of a bankers draft to the Vendor's Solicitors shall be a full and sufficient discharge to the Purchaser for the monies payable on Completion and the Purchaser shall not be concerned to see to the application of any payment by the Purchaser under this Clause 4.3charge).
4.4 If all the provisions of Clause 4.2 are not complied with in full on Completion the Purchaser may:
(a) defer Completion to a date not more than 28 days after the date specified in Clause 4.1 in which event the provisions of this Clause 4.4 shall apply to Completion as so deferred; or
(b) proceed to Completion so far as practicable without prejudice to its rights under this Agreement or otherwise and so that any provision of Clause 4.2 which may not have been complied with at Completion shall at the sole discretion of the Purchaser be held over to such future date or dates as the Purchaser may in its sole discretion determine; or
(c) terminate this Agreement (save for Clauses 12, 13, 14 and 20, which shall remain in full force and effect) provided that such termination shall not affect the rights and obligations of the parties which have accrued prior to termination and shall not limit or exclude any other rights or remedies of the Purchaser in respect of any failure by the Vendor to comply with the requirements of Clause 4.2 on the due date.
4.5 The Vendor shall use all reasonable endeavours to procure compliance with the provisions of Clause 4.2 on any date set for Completion in accordance with this Agreement.
4.6 The Vendor undertakes to and covenants with the Purchaser (for itself and as trustee for the Company) that if, after Completion, it is discovered that the Company had on or before Completion given or undertaken any guarantees, indemnities or similar securities in respect of the obligations or liabilities of any person other than the Company and such guarantees, indemnities or similar securities were not finally and unconditionally released on or before Completion, the Vendor will fully indemnify the Purchaser and the Company and keep each of them fully indemnified on demand against all claims, demands, actions, proceedings, damages, losses, costs, expenses or liabilities suffered or incurred by the Purchaser or the Company under or in connection with such guarantees, indemnities or similar obligations.
Appears in 1 contract
Sources: Share Purchase Agreement (Coda Octopus Group, Inc.)
Completion. 4.1 5.1 Completion shall take place at the offices of the PurchaserBuyer's Solicitors immediately following the signing of this Agreement or at such other place or time as the Vendor and the Purchaser may agree.
4.2 At Completion the Vendor shall procureSolicitors:
(a) the delivery on a date to the Purchaser of duly completed and executed transfers of the Shares be mutually agreed by the registered holders of Seller and the Shares in favour of the Purchaser or its nominees together with valid share certificates representing the Shares and all (if any) other documents required to give good title to the Shares;Buyer; and
(b) failing such agreement on the date of the Target Group's accounting period end date immediately following the date when the Works Councils Opinions (as defined in clause 4.5) have been expressed (or the parties have agreed (each acting reasonably) that all information reasonably necessary to allow the Works Councils to give the Works Councils Opinions has been provided and the Works Councils have been given all reasonable opportunity to give their opinions) and all of the Conditions shall have been fulfilled or waived (the "SATISFACTION DATE") (provided that there are at least three clear Business Days between the Satisfaction Date and the date of the Target Group's accounting period end date).
5.2 On Completion the Seller shall deliver to, or procure the delivery by the relevant Vendor, or, if the Buyer shall so agree, make available to the Purchaser of powers of attorney Buyer:-
(a) transfers in common form relating to all the agreed form Acquisition Shares duly executed by the registered holders thereof in favour of the Buyer (or as it may direct) and
(i) the written resolutions of the sole participants of the Czech Company authorising the transfer of 100% of the ownership interests therein to the Buyer duly executed before a Czech notary public;
(ii) the Ownership Interest Transfer Agreement, duly executed before a Czech notary public by or on behalf of the sole participants of the Czech Company; and
(iii) a deed duly executed by Draftex Industries Limited and Draftex Industries No. 1 Limited before a notary pursuant to which Draftex Industries Limited and Draftex Industries No. 1 Limited irrevocably transfer their entire shareholding in Draftex Beteiligungsgesellschaft mbH to a member of the Buyer's Group nominated by the Buyer and a unanimous resolution of the shareholders' meeting of Draftex Beteiligungsgesellschaft mbH authorising the transfer of the shares to the member of the Buyer's Group nominated by the Buyer; and in relation to the Acquisition Shares of the French Target Group, only:
(iv) original share transfer forms (ordres de mouvement) of the French Target Group Company dated as of the Completion Date and duly signed by the registered owners thereof in favour of the Buyer or as the latter may direct;
(v) share transfer registers and shareholders' accounts for each French Target Group Company (written up to but not including Completion), showing the Vendor as the owner of all of each French Target Group Company's shares and containing no indication of the existence of any Encumbrances over or in respect of any of the French Target Group Company's Shares;
(vi) records of proceedings of the board of directors of each of the French Target Group Companies and the minutes of general meetings of each of the French Target Group Companies, together with the attendance registers for meetings of the board of directors and the attendance sheets for the general meetings of the shareholders of each such company as are in the possession of the French Target Group Companies;
(vii) resignations in agreed terms from each of the members of the board of the French Target Group Company retiring from office with effect from Completion and confirming that they have no claim against the French Target Group Company for compensation; and
(viii) resolutions of a general meeting of the shareholders of each French Target Group Company appointing such persons as the Buyer shall nominate as members of the board of the French Target Group Company and copies of certified as true and complete minutes of such general meetings by the chairman of the meeting; and
(ix) (if applicable) provide a certified copy of the minutes of the EGM held by Snappon SA to adopt new Articles to permit the free transfer of any Snappon Director's shares in Snappon SA.
(b) share certificates relating to the Acquisition Shares;
(c) any waivers or consents by members of any Target Group Company or other persons which the delivery Buyer has specified prior to Completion in the Purchaser agreed terms so as to enable the Buyer or its nominees to be registered as the holders of the Tax Covenant duly executed by the VendorAcquisition Shares;
(d) resignations duly executed as deeds of such of the directors and the secretary of any Target Group Company as the Buyer shall request in writing from their offices as director or secretary of any Target Group Company containing a confirmation that they have no claims (whether statutory, contractual or otherwise) against any Target Group Company for compensation for loss of office together with delivery to the Purchaser Buyer of the following, each duly executed and in form and substance satisfactory to the Purchaser:-
(i) a deed all property of release given in relation to the Company Guarantee;
(ii) a deed of release by each person holding or being entitled to any Encumbrance over the Shares or any of the assets of the Company;
(iii) a deed of waiver by the Vendor waiving any claim it or any of its subsidiaries or Associates may have against the Company;
(iv) deeds of waiver by each co-guarantor of the Target Group Company in respect of the Company Guaranteetheir possession or under their control;
(e) the delivery to the Purchaser written resignations of the statutory books (duly written up to date) and the certificate(s) auditors of incorporation of the each Target Group Company;
(f) the delivery to the Purchaser common seals, certificates of all current incorporation and statutory books, share certificate books and cheque books and deposit books relating to all bank accounts of the each Target Group Company;
(g) the delivery to Tax Deed duly executed by the Purchaser of all documents of title relating to the Properties;Seller; and
(h) the delivery to the Purchaser counterparts of copies each of the minutes of required Intellectual Property Assignments duly executed by the meetings of the boards of directors of the Vendor in the agreed form, authorising (relevant assignor in each case) the entry into of the transaction the subject of this Agreement, approving this Agreement and any other agreements or documents to be executed pursuant to or in connection with it and appointing the relevant signatory to sign this Agreement and such other agreements and documents on their behalf certified by the company secretary of the Vendor together with (in each case) confirmation, in the agreed form, from the company secretary that the authority conferred remains valid at Completioninstance;
(i) the passing of effective resolutions a counterpart of the Directors resolving to register Intellectual Property Deed duly executed by the transfers of the Shares subject only to stamping of the share transfersSeller;
(j) (at the cost a counterpart of the Vendor) the convening and holding of all such meetings, the passing of all such resolutions, the execution and delivery of all such documents and the taking of all other action to the extent reasonably necessary in order to complete the transfer of title to the Shares to the Purchaser free from all Encumbrances and to enable the Purchaser to exercise and receive all rights and benefits attaching to or arising from the SharesIT Transitional Services Procurement Agreement duly executed by Draftex S.A;
(k) with effect from Completion, the appointment as directors and secretary counterparts of the Company of such person or persons as Supply Agreements duly executed by the Purchaser shall have nominated and the resignation of each relevant member of the Directors Seller's Group;
(except ▇▇▇l) powers of attorney in the customary form for each relevant jurisdiction;
(m) a deed duly executed before a German notary pursuant to which Jurg▇▇ ▇▇▇▇▇▇▇ ▇▇▇evocably transfers his entire shareholding in Draftex Verwaltungs GmbH to Draftex Beiteilligungsgesellschaft mbH and a unanimous resolution of the shareholders' meeting of Draftex Verwaltungsgesellschaft mbH authorising the transfer of the shares to a member of the Buyer's Group nominated by the Buyer;
(n) a deed duly executed before a notary pursuant to which Mart▇▇ ▇▇▇▇▇▇▇ ▇▇▇evocably transfers his entire shareholding in Draftex International European Technical Centre GmbH to a member of the Buyer's Group nominated by the Buyer and a unanimous resolution of the shareholders' meeting of Draftex International European Technical Centre GmbH authorising the transfer of the shares to a member of the Buyer's Group nominated by the Buyer; and
(o) licences with respect to the Third Party Software and the Atos Software (provided however that the Seller does not undertake to procure the delivery of or make available to the Buyer a licence in the terms of clause 2.3 of the IT Transitional Services Procurement Agreement for any Atos Software which is not software owned by the Seller or the Seller's Group).
5.3 At or prior to Completion (and prior to the taking effect of the resignations of the directors referred to in clause 5.2(d) above) the Seller shall procure the passing of board resolutions (and/or passing of shareholder resolutions where relevant) of each relevant Target Group Company (where appropriate) under relevant local laws :-
(a) sanctioning for registration (subject where necessary to due stamping) the transfers in respect of the Acquisition Shares and any shares to which clause 5.2 refers;
(b) authorising the delivery to the Buyer of share certificates in respect of the Acquisition Shares;
(c) appointing such persons as are nominated by the Buyer to be the directors and secretary of each Target Group Company (if applicable);
(d) tendering and accepting the resignations and acknowledgements of the directors and secretary referred to in clause 5.2(d);
(e) tendering and accepting the resignation of the auditors and appointing auditors nominated by the Buyer as new auditors of each of the Target Group Companies.
5.4 As soon as practicable following Completion (and in any event within 3 months of Completion), the Seller shall procure the passing of board resolutions and special resolutions of any member of the Seller's Group which bear or include the name "Draftex" in their corporate name, changing their corporate name so that it does not include or bear the "Draftex" name.
5.5 Upon compliance by the Seller with the provisions of clauses 5.2, and 5.3 the Buyer shall:-
(a) In relation to the Czech Company
(i) deliver to the Seller the counterparts of the Ownership Interest Transfer Agreement, duly executed by or on behalf of the Buyer before a notary public;
(ii) deliver to the Seller the written resolutions of the Buyer as the new sole participant in the Czech Company resolving (a) to remove the current executives and replace them with new executives and (b) in notarial deed form amending the current Czech Company Memoranda of Association to change the name of the Czech Company removing "Draftex" therefrom; and
(iii) deliver petitions to the relevant Czech court reflecting the transfer of the ownership interests in the Czech Company duly signed on behalf of the Czech Company.
(b) provide for the transfer by CHAPS of an amount in Euro equal to the Estimated Consideration less the Deferred Amount to the Seller's Account (the Seller receiving such transfer as agent for the Vendors) at HSBC Bank plc, of 27-3▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇, ▇▇rt Code 40-05-15, Account No. 3911▇▇▇▇;
(c) in respect of Intra-Group Debt provide on behalf of the relevant member(s) of the Target Group for the transfer by CHAPS of an amount in Euro equal to the Estimated Intra-Group Debt to the Seller's Account (the Seller receiving such transfer on behalf the relevant member of the Seller's Group) at HSBC Bank plc, of 27-3▇ ▇▇▇▇▇▇▇▇ and , ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇, ▇▇rt Code 40-05-15, Account No. 3911▇▇▇▇;
(d) deliver to the Seller a counterpart of the Tax Deed duly executed by the Buyer;
(e) deliver to the Seller a counterpart of the Intellectual Property Deed duly executed by the Buyer;
(f) a counterpart of the IT Transitional Services Procurement Agreement duly executed by the Buyer; and
(g) counterparts of the Supply Agreements duly executed by the relevant member of the Target Group.
5.6 The Seller acknowledges that, immediately following Completion until such time as the transfer(s) of the Acquisition Shares (and the secretary transfers of the Company by delivery entire issued share capital of each of Draftex International European Technical Centre GmbH and Draftex Verwaltungsgesellschaft mbH) have been registered in the register of members of the relevant Target Group Company, the Seller or a letter under seal from member of the Seller's Group will hold those Acquisition Shares (and those shares in the share capital of each such Director of Draftex International European Technical Centre GmbH and Draftex Verwaltungsgesellschaft mbH) registered in its name on trust for and as nominee for the secretary resigning from his offices Buyer or its nominees and from any employment he may have undertakes to hold all dividends and distributions and exercise all voting rights available in respect of those shares in accordance with the directions of the Buyer or its nominees and if the Seller is in breach of the undertakings contained in this clause the Seller irrevocably authorises the Buyer to appoint some person or persons as its attorney to execute all instruments or proxies (including consents to short notice) or other documents which the Buyer or its nominees may reasonably require and which may be necessary to enable the Buyer or its nominees to attend and vote at general meetings of the relevant Target Group Company and to do any thing or things necessary to give effect to the rights contained in this clause.
5.7 At or prior to Completion, the Seller shall procure that all Tax sharing agreements and arrangements to which a Target Group Company is party shall be terminated or, to the extent not so terminated, that the relevant Target Group Company (or Companies as the case may be) shall with effect from Completion and acknowledging that he has no claim against the Company either actual or contingent cease to be party to and/or liable in respect of any cause matter such agreements or thing (statutory or otherwise);arrangements.
(l) the resignation of the auditors of the Company (without compensation for loss of office or 5.8 Notwithstanding any other claim save for proper professional fees for services rendered in respect provision of their duties as auditors prior to the completion of the 1997 Audit) with effect from completion of the 1997 Audit and the delivery of a statement by them that there are no circumstances connected with their ceasing to hold office which they consider should be brought to the attention of the members or creditors of the Company;
(m) revocation of all existing authorities to the bankers of the Company relating to bank accounts and the grant of authority to such persons as the Purchaser may nominate to operate the same;
(n) that all books, records and files of the Company are in its possession or under its control and where any such are not at the Properties that the Purchaser is given details of their whereabouts and any necessary authority to collect them;
(o) the delivery to the Purchaser of duly completed and executed transfers of all shares in the capital of Firstpoint Services Limited not registered in the name of the Company, the statutory books and common seal (if any) of Firstpoint Services Limited and certificates for all of the issued shares in Firstpoint Services Limited.
4.3 Immediately following fulfilment of all the matters referred to in Clause 4.2 the Purchaser shallthis clause 5:
(a) procure that that part of if the Consideration payable in cash on Completion Seller is paid by bankers draft unable to the Vendor's Solicitors (who are hereby irrevocably authorised to receive that consideration) on behalf of the Vendor;
(b) deliver to the Vendor's Solicitors a counterpart of Buyer on the Tax Covenant duly executed Completion Date any immaterial item (as reasonably determined by the Purchaser;Buyer) required to be delivered to the terms of this clause 5, then at the Buyer's option:
(c1) if requested, and at the Vendor's cost, deliver parties can proceed to Completion against the Vendor's Solicitors a legal opinion provision of appropriate assurances and/or undertakings in a form reasonably satisfactory to the Vendor as to the validity and enforceability of the guarantee contained within Clause 11 of this Agreement and if such opinion is that such guarantee is not valid and enforceable such amendments Buyer; or (2) Completion shall be made to the guarantee as render it valid and enforceable; and
(d) as agent for the Company, repay the Inter-Company Debt by bankers draft to the Vendor's Solicitors (who are hereby irrevocably authorised to receive that payment) on behalf of the Vendor and its subsidiaries and Associates. The delivery of a bankers draft to the Vendor's Solicitors shall be a full and sufficient discharge to the Purchaser for the monies payable on Completion and the Purchaser shall not be concerned to see to the application of any payment by the Purchaser under this Clause 4.3.
4.4 If all the provisions of Clause 4.2 are not complied with in full on Completion the Purchaser may:
(a) defer Completion deferred to a date not more than 28 days 15 Business Days after the date specified in Clause 4.1 in which event Completion Date (and so that the provisions of this Clause 4.4 clause 5.8, apart from this clause 5.8(a), shall apply to Completion as so deferred; or) by means of a notice to that effect in writing served by the Buyer on the Seller;
(b) if the Buyer is unable to deliver to the Seller on the Completion Date any immaterial item (as reasonably determined by the Seller) required to be delivered to the terms of this clause 5, then at the Seller's option:
(1) the parties can proceed to Completion so far as practicable without prejudice against the provision of appropriate assurances and/or undertakings in a form reasonably satisfactory to its rights under this Agreement the Seller; or otherwise (2) Completion shall be deferred to a date not more than 15 Business Days after the Completion Date (and so that any provision the provisions of Clause 4.2 which may this clause 5.8, apart from this clause 5.8(b), shall apply to Completion as so deferred) by means of a notice to that effect in writing served by the Seller on the Buyer.
5.9 If Completion has not have been complied with at Completion occurred by the Long Stop Date, this agreement shall at the sole discretion of the Purchaser be held over to such future date or dates as the Purchaser may in its sole discretion determine; or
(c) automatically terminate this Agreement (save for Clauses 12, 13, 14 and 20, which shall remain in full force and effect) provided that such termination shall not affect the rights and obligations liabilities of the parties which have accrued prior under clauses 12, 13 and 17 to termination and 23 (inclusive) only shall not limit or exclude any other rights or remedies of the Purchaser in respect of any failure by the Vendor continue to comply with the requirements of Clause 4.2 on the due datesubsist.
4.5 The Vendor shall use all reasonable endeavours to procure compliance with the provisions of Clause 4.2 on any date set for Completion in accordance with this Agreement.
4.6 The Vendor undertakes to and covenants with the Purchaser (for itself and as trustee for the Company) that if, after Completion, it is discovered that the Company had on or before Completion given or undertaken any guarantees, indemnities or similar securities in respect of the obligations or liabilities of any person other than the Company and such guarantees, indemnities or similar securities were not finally and unconditionally released on or before Completion, the Vendor will fully indemnify the Purchaser and the Company and keep each of them fully indemnified on demand against all claims, demands, actions, proceedings, damages, losses, costs, expenses or liabilities suffered or incurred by the Purchaser or the Company under or in connection with such guarantees, indemnities or similar obligations.
Appears in 1 contract
Sources: Agreement for the Sale and Purchase of Shares (Gencorp Inc)
Completion. 4.1 5.1 Completion shall take place at on the offices Completion Date when:
5.1.1 the Sellers shall deliver to the Buyer, or procure the delivery to the Buyer of, the documents and other items referred to in Schedule 4;
5.1.2 the Sellers shall repay or procure the repayment in full of all amounts owing (even if not due for repayment) to the Company or the Subsidiary by any of the Purchaser's Solicitors immediately following Sellers or any connected persons or associates or directors of them or any of them and shall procure that all guarantees or indemnities given by or binding on the signing Company or the Subsidiary in respect of any liabilities (actual or contingent) of any of the Sellers or any of such connected persons or associates or directors are fully and effectively released without cost to the Company or the Subsidiary save that this Agreement or at such other place or time as Clause shall not apply to advances made to members of staff on account of expenses;
5.1.3 the Vendor and the Purchaser may agree.
4.2 At Completion the Vendor Sellers shall procure:
(a) the delivery to the Purchaser of duly completed and executed transfers that there shall be held a meeting of the Shares by the registered holders board of directors of the Shares in favour Company and of the Purchaser Subsidiary at which there shall be duly passed the resolutions set out and contained in the board minutes or its nominees together with valid share certificates representing unanimous board consents of the Shares Company and all (if any) other documents required of the Subsidiary in the Agreed Form marked “C1” to give good title to the Shares;“C2” respectively; and
(b) the delivery to the Purchaser of powers of attorney in the agreed form duly executed by the registered holders of the Shares;
(c) the delivery to the Purchaser of the Tax Covenant duly executed by the Vendor;
(d) the delivery to the Purchaser of the following, each duly executed and in form and substance satisfactory to the Purchaser:-
(i) a deed of release given in relation to the Company Guarantee;
(ii) a deed of release by each person holding or being entitled to any Encumbrance over the Shares or any of the assets of the Company;
(iii) a deed of waiver by the Vendor waiving any claim it or any of its subsidiaries or Associates may have against the Company;
(iv) deeds of waiver by each co-guarantor of the Company in respect of the Company Guarantee;
(e) the delivery to the Purchaser of the statutory books (duly written up to date) and the certificate(s) of incorporation of the Company;
(f) the delivery to the Purchaser of all current cheque books and deposit books relating to all bank accounts of the Company;
(g) the delivery to the Purchaser of all documents of title relating to the Properties;
(h) the delivery to the Purchaser of copies of the minutes of the meetings of the boards of directors of the Vendor in the agreed form, authorising (in each case) the entry into of the transaction the subject of this Agreement, approving this Agreement and any other agreements or documents to be executed pursuant to or in connection with it and appointing the relevant signatory to sign this Agreement and such other agreements and documents on their behalf certified by the company secretary of the Vendor together with (in each case) confirmation, in the agreed form, from the company secretary that the authority conferred remains valid at Completion;
(i) the passing of effective resolutions of the Directors resolving to register the transfers of the Shares subject only to stamping of the share transfers;
(j) (at the cost of the Vendor) the convening and holding of all such meetings, the passing of all such resolutions, the execution and delivery of all such documents and the taking of all other action to the extent reasonably necessary in order to complete the transfer of title to the Shares to the Purchaser free from all Encumbrances and to enable the Purchaser to exercise and receive all rights and benefits attaching to or arising from the Shares;
(k) with effect from Completion, the appointment as directors and secretary of the Company of such person or persons as the Purchaser shall have nominated and the resignation of each of the Directors (except ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ and ▇▇▇▇ ▇▇▇▇▇) and the secretary of the Company by delivery of a letter under seal from each such Director and the secretary resigning from his offices and from any employment he may have with the Company with effect from Completion and acknowledging that he has no claim against the Company either actual or contingent in respect of any cause matter or thing (statutory or otherwise);
(l) the resignation of the auditors of the Company (without compensation for loss of office or any other claim save for proper professional fees for services rendered in respect of their duties as auditors prior to the completion of the 1997 Audit) with effect from completion of the 1997 Audit and the delivery of a statement by them that there are no circumstances connected with their ceasing to hold office which they consider should shall be brought to duly passed the attention of Resolutions as written resolutions; and
5.1.4 the members or creditors of the Company;
(m) revocation of all existing authorities to the bankers of the Company relating to bank accounts and the grant of authority to such persons as the Purchaser may nominate to operate the same;
(n) that all books, records and files of the Company are in its possession or under its control and where any such are not at the Properties that the Purchaser is given details of their whereabouts and any necessary authority to collect them;
(o) the delivery to the Purchaser of duly completed and executed transfers of all shares in the capital of Firstpoint Services Limited not registered in the name of the Company, the statutory books and common seal (if any) of Firstpoint Services Limited and certificates for all of the issued shares in Firstpoint Services Limited.
4.3 Immediately following fulfilment of all the matters referred to in Clause 4.2 the Purchaser Buyer shall:
(a) procure that that part pay:
(i) the Initial Cash Consideration to the Sellers and the Other Sellers by way of transfer of funds to the Sellers’ Solicitor’s Account, receipt of which shall be an effective discharge of the Consideration payable Buyer’s obligation to pay the Initial Cash Consideration, after deduction in cash on Completion is paid by bankers draft relation to any Optionholder of the amounts to be withheld from such Optionholder pursuant to Clause 5.1.4(a)(ii) below;
(ii) to the Vendor's Solicitors Company on behalf of Optionholders (who are hereby irrevocably authorised also Sellers) the aggregate amounts in satisfaction of (i) the aggregate exercise monies due, and (ii) amounts due in respect of Tax (including employee and employer’s National Insurance contributions and PAYE contributions) pursuant to receive the undertakings and authorisations provided by the Optionholders in the Exercise Forms and such Optionholders agree that considerationthe amount so payable in respect of any Optionholder shall be deducted from the cash amount otherwise payable to that Optionholder for his/her Option Shares and the Buyer agrees to procure that the Company shall pay to the relevant Taxation Authority such amounts due in respect of Tax;
(iii) on behalf (or cause the Company to pay) to the Seller's Solicitors the sum of £1,458,130 in respect of the VendorManagement Incentive Bonus, constituted by the anticipated principal amount of £1,281,310 and £176,820 in respect of National Insurance contributions anticipated to be payable thereon, to be held subject to and in accordance with Clause 8.10;
(iv) the Escrow Cash Amount into the Escrow Account;
(v) (or cause the Company to pay) the WC Initial Payments to the Sellers and Other Sellers in the amounts set against their names in column 9 of Schedule 1 by way of transfer of funds to the Sellers’ Solicitor’s Account, receipt of which shall be an effective discharge of the Buyer’s obligation to pay the WC Initial Payments;
(b) deliver to the Vendor's Solicitors a counterpart of the Tax Covenant Escrow Agreement, duly executed by the PurchaserBuyer;
(c) if requestedissue such number of Initial Buyer Shares to each Seller and Other Seller as shown against his or her name in Parts A and B of column 4 of Schedule 1, with such legends as appropriate. It is Buyer’s current policy not to issue stock certificates representing shares of its capital stock, and at all new issuances of capital stock are reflected on Buyer’s books and records in book entry only, with appropriate notations reflecting the Vendor's cost, deliver to the Vendor's Solicitors a legal opinion in a form reasonably satisfactory to the Vendor as to the validity and enforceability of the guarantee contained within Clause 11 of this Agreement and if such opinion is that such guarantee is not valid and enforceable such amendments shall be made to the guarantee as render it valid and enforceableapplicable legends; and
(d) issue the Escrow Stock to US Bank National Association as agent for escrow agent.
5.2 The performance by the Company, repay the Inter-Company Debt by bankers draft to the Vendor's Solicitors (who are hereby irrevocably authorised to receive that payment) on behalf Sellers of the Vendor and its subsidiaries and Associates. The delivery of a bankers draft to the Vendor's Solicitors their respective obligations under Clause 5.1 shall be a full and sufficient discharge condition precedent to the Purchaser for the monies payable on Completion and the Purchaser shall not be concerned to see to the application of any payment performance by the Purchaser Buyer of its obligations under this Clause 4.3.
4.4 If all 5.1 such that, if the provisions Sellers or any of them shall fail or shall be unable to perform any of their obligations under Clause 4.2 are not complied with in full on Completion 5.1, the Purchaser mayBuyer shall either:
(a) 5.2.1 defer Completion to a later date not more than 28 days after the date specified in Clause 4.1 in which event the provisions of this Clause 4.4 shall apply to Completion as so deferredbe agreed;
5.2.2 elect to proceed to Completion; or
5.2.3 if failure to perform would materially adversely affect the value of the Shares, Other Shares and Outstanding Shares due to be acquired by the Buyer at its option (b) proceed to Completion so far as practicable and without prejudice to its rights under this Agreement or otherwise and so that any provision of Clause 4.2 which may not have been complied with at Completion shall at the sole discretion of the Purchaser be held over to such future date or dates as the Purchaser may in its sole discretion determine; or
(c) terminate this Agreement (save for Clauses 12, 13, 14 and 20, which shall remain in full force and effect) provided that such termination shall not affect the rights and obligations of the parties which have accrued prior to termination and shall not limit or exclude any other remedies or rights which it may have against the Sellers or remedies any of the Purchaser them in respect of any failure by the Vendor such non-performance) cease to comply with the requirements of be liable to perform its obligations under Clause 4.2 on the due date5.1.
4.5 The Vendor shall use all reasonable endeavours to procure compliance with the provisions of Clause 4.2 on any date set for Completion in accordance with this Agreement.
4.6 The Vendor undertakes to and covenants with the Purchaser (for itself and as trustee for the Company) that if, after Completion, it is discovered that the Company had on or before Completion given or undertaken any guarantees, indemnities or similar securities in respect of the obligations or liabilities of any person other than the Company and such guarantees, indemnities or similar securities were not finally and unconditionally released on or before Completion, the Vendor will fully indemnify the Purchaser and the Company and keep each of them fully indemnified on demand against all claims, demands, actions, proceedings, damages, losses, costs, expenses or liabilities suffered or incurred by the Purchaser or the Company under or in connection with such guarantees, indemnities or similar obligations.
Appears in 1 contract
Completion. 4.1 Completion 7.1 The sale and purchase of the Sale Shares shall take place be completed at the offices of the Purchaser's Solicitors immediately forthwith following the signing of this Agreement agreement (or at such other time or place or time as the Vendor and the Purchaser may parties shall agree).
4.2 At 7.2 On Completion the Vendor Vendors shall procuredeliver or cause to be delivered to the Purchaser:
(a) the delivery to the Purchaser of duly completed and executed transfers stock transfer forms in respect of the Sale Shares by together with the registered holders of the Shares related share certificates (such stock transfer forms to be in favour of the Purchaser or its nominees nominees, as the Purchaser shall direct) together with valid share certificates representing the Shares and all (if any) such waivers, consents, or other documents required as the Purchaser may require to give good title enable it or its nominees to be registered as the Sharesholders of the Sale Shares free from all Encumbrances and other adverse rights whatsoever;
(b) the delivery to the Purchaser of powers of attorney an acknowledgement in the agreed form duly executed by the registered holders from each of the SharesVendors to the Purchaser and the Company executed as a deed to the effect that save in relation to remuneration or reimbursement of expenses incurred in relation to his or her employment, details of which are specified in such deed, there is no outstanding indebtedness owing at Completion from any Group Company to such Vendor or to any such Vendor's Affiliate or vice versa;
(c) letters of resignation in the delivery to agreed form from ▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇ as a director of ASL and from the Purchaser secretary of the Tax Covenant duly executed by the Vendoreach Group Company;
(d) the delivery statutory books of each Group Company complete and accurate up to the Purchaser Completion and any company seal(s), certificates of the followingincorporation, certificates of incorporation on change of name and all unused share certificates of each duly executed Group Company and in form and substance satisfactory to the Purchaser:-
(i) a deed all cheque books of release given in relation to the Company Guarantee;
(ii) a deed of release by each person holding or being entitled to any Encumbrance over the Shares or any of the assets of the Group Company;
(iii) a deed of waiver by the Vendor waiving any claim it or any of its subsidiaries or Associates may have against the Company;
(iv) deeds of waiver by each co-guarantor of the Company in respect of the Company Guarantee;
(e) the delivery to Tax Deed duly executed by the Purchaser of the statutory books (duly written up to date) and the certificate(s) of incorporation of the CompanyVendors;
(f) the delivery to Service Agreements duly executed by the Purchaser of all current cheque books and deposit books relating to all bank accounts of the Companyrelevant Vendors;
(g) the delivery to Disclosure Letter duly executed by the Purchaser Vendors or on behalf of all documents of title relating to the PropertiesVendors by the Vendors' Solicitors;
(h) the delivery to the Purchaser of copies of the minutes of the meetings of the boards of directors of the Vendor in the agreed form, authorising (in each case) the entry into of the transaction the subject of this Agreement, approving this Agreement and any other agreements or documents to be Deferred Consideration Account Instruction Letter duly executed pursuant to or in connection with it and appointing the relevant signatory to sign this Agreement and such other agreements and documents on their behalf certified by the company secretary of the Vendor together with (in each case) confirmation, in the agreed form, from the company secretary that the authority conferred remains valid at CompletionVendors;
(i) the passing of effective resolutions of the Directors resolving to register the transfers of the Shares subject only to stamping of the share transfers▇▇▇▇▇▇ ▇▇▇▇▇▇▇ letter;
(j) (at a complete source code for the cost current version of ASL Connect and for the Vendor) the convening and holding current version of all such meetings, the passing of all such resolutions, the execution and delivery of all such documents and the taking of all other action to the extent reasonably necessary in order to complete the transfer of title to the Shares to the Purchaser free from all Encumbrances and to enable the Purchaser to exercise and receive all rights and benefits attaching to or arising from the SharesIBM Mobile Connect;
(k) with effect from Completionthe Waivers, the appointment as directors and secretary of the Company of such person or persons as the Purchaser shall have nominated and the resignation of each of the Directors (except duly executed by ▇▇▇▇ ▇▇▇▇▇▇▇ and ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ respectively;
(l) the Stock Option Agreements duly executed by the Vendors.
7.3 On Completion the Vendors shall procure the holding of a meeting of the directors of the Company at which the directors of the Company shall:
(a) (subject to stamping) approve the transfers to the Purchaser (or its nominees) of the Sale Shares;
(b) appoint ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇ and ▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ as additional directors of the Company;
(c) appoint TJG Secretaries Limited as the new secretary of the Company;
(d) accept the resignation(s) referred to in sub-clause 6.2(c);
(e) insofar as necessary change the accounting reference date of the Company to 30 June;
(f) change the registered office of the Company to Carmelite, ▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇;
(g) alter the existing mandates to the Company's bankers by adding ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ and ▇▇▇▇▇ ▇▇▇▇ as authorised signatories; and
(h) pass any other resolutions reasonably requested by the Purchaser.
7.4 On Completion the Vendors shall also procure the holding of separate board meetings of each of the Subsidiaries at which the directors of each respective Subsidiary shall:
(a) in the case of ASL, approve each of the Service Agreements and authorise one or more of the directors of ASL to execute the same on behalf of ASL;
(b) appoint ▇▇▇▇▇▇ ▇▇▇▇▇) ▇▇, ▇▇▇▇▇ ▇▇▇▇ and the secretary ▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ as additional directors of the Company by delivery of a letter under seal from each such Director and the secretary resigning from his offices and from any employment he may have with the Company with effect from Completion and acknowledging that he has no claim against the Company either actual or contingent in respect of any cause matter or thing (statutory or otherwise);
(l) the resignation of the auditors of the Company (without compensation for loss of office or any other claim save for proper professional fees for services rendered in respect of their duties as auditors prior to the completion of the 1997 Audit) with effect from completion of the 1997 Audit and the delivery of a statement by them that there are no circumstances connected with their ceasing to hold office which they consider should be brought to the attention of the members or creditors of the Company;
(m) revocation of all existing authorities to the bankers of the Company relating to bank accounts and the grant of authority to such persons as the Purchaser may nominate to operate the same;
(n) that all books, records and files of the Company are in its possession or under its control and where any such are not at the Properties that the Purchaser is given details of their whereabouts and any necessary authority to collect them;
(o) the delivery to the Purchaser of duly completed and executed transfers of all shares in the capital of Firstpoint Services Limited not registered in the name of the Company, the statutory books and common seal (if any) of Firstpoint Services Limited and certificates for all of the issued shares in Firstpoint Services Limited.
4.3 Immediately following fulfilment of all the matters referred to in Clause 4.2 the Purchaser shall:
(a) procure that that part of the Consideration payable in cash on Completion is paid by bankers draft to the Vendor's Solicitors (who are hereby irrevocably authorised to receive that consideration) on behalf of the Vendor;
(b) deliver to the Vendor's Solicitors a counterpart of the Tax Covenant duly executed by the PurchaserSubsidiary;
(c) if requested, and at appoint TJG Secretaries Limited as the Vendor's cost, deliver to the Vendor's Solicitors a legal opinion in a form reasonably satisfactory to the Vendor as to the validity and enforceability new secretary of the guarantee contained within Clause 11 of this Agreement and if such opinion is that such guarantee is not valid and enforceable such amendments shall be made to the guarantee as render it valid and enforceable; andSubsidiary;
(d) as agent for accept the Company, repay the Interresignation(s) referred to in sub-Company Debt by bankers draft to the Vendor's Solicitors (who are hereby irrevocably authorised to receive that payment) on behalf of the Vendor and its subsidiaries and Associates. The delivery of a bankers draft to the Vendor's Solicitors shall be a full and sufficient discharge to the Purchaser for the monies payable on Completion and the Purchaser shall not be concerned to see to the application of any payment by the Purchaser under this Clause 4.3.
4.4 If all the provisions of Clause 4.2 are not complied with in full on Completion the Purchaser may:
(a) defer Completion to a date not more than 28 days after the date specified in Clause 4.1 in which event the provisions of this Clause 4.4 shall apply to Completion as so deferred; or
(b) proceed to Completion so far as practicable without prejudice to its rights under this Agreement or otherwise and so that any provision of Clause 4.2 which may not have been complied with at Completion shall at the sole discretion of the Purchaser be held over to such future date or dates as the Purchaser may in its sole discretion determine; or
(c) terminate this Agreement (save for Clauses 12, 13, 14 and 20, which shall remain in full force and effect) provided that such termination shall not affect the rights and obligations of the parties which have accrued prior to termination and shall not limit or exclude any other rights or remedies of the Purchaser in respect of any failure by the Vendor to comply with the requirements of Clause 4.2 on the due date.
4.5 The Vendor shall use all reasonable endeavours to procure compliance with the provisions of Clause 4.2 on any date set for Completion in accordance with this Agreement.
4.6 The Vendor undertakes to and covenants with the Purchaser (for itself and as trustee for the Company) that if, after Completion, it is discovered that the Company had on or before Completion given or undertaken any guarantees, indemnities or similar securities in respect of the obligations or liabilities of any person other than the Company and such guarantees, indemnities or similar securities were not finally and unconditionally released on or before Completion, the Vendor will fully indemnify the Purchaser and the Company and keep each of them fully indemnified on demand against all claims, demands, actions, proceedings, damages, losses, costs, expenses or liabilities suffered or incurred by the Purchaser or the Company under or in connection with such guarantees, indemnities or similar obligations.clause 6.2
Appears in 1 contract
Completion. 4.1 6.1 Completion shall take place at the offices of the PurchaserCompany's Solicitors immediately following the signing of this Agreement registered office (or at such other place or time as the Vendor Buyer and the Purchaser may Seller shall agree.
4.2 At ) on the Completion the Vendor shall procureDate whereupon:
(a) the delivery Seller shall cause to the Purchaser of duly completed and executed transfers be delivered to each of the Shares Buyers (a) share transfer(s) into the name of each of the Buyers in respect of 50% of the then total issued share capital of the Company duly executed and accompanied by the registered holders of the Shares in favour of the Purchaser or its nominees together with valid relevant share certificates representing the Shares and all (if any) other documents required to give good title to the Sharescertificate(s);
(b) the delivery Seller shall procure the transfers mentioned in clause 6.1
(a) shall be approved for registration (subject to the Purchaser of powers of attorney in the agreed form their being represented duly executed by the registered holders of the Sharesstamped);
(c) the delivery to the Purchaser of the Tax Covenant duly executed by the Vendor;
(d) the delivery to the Purchaser of the followingSeller shall procure that all minute books, each duly executed share registers and in form and substance satisfactory to the Purchaser:-
(i) a deed of release given in relation to the Company Guarantee;
(ii) a deed of release by each person holding or being entitled to any Encumbrance over the Shares or any of the assets of the Company;
(iii) a deed of waiver by the Vendor waiving any claim it or any of its subsidiaries or Associates may have against the Company;
(iv) deeds of waiver by each co-guarantor of the Company in respect of the Company Guarantee;
(e) the delivery to the Purchaser of the other statutory books (duly written up to date) ), the common seal and the certificate(s) share certificate books, Certificate of incorporation Incorporation and copies of the CompanyMemorandum and Articles of Association of the Company shall be delivered to or made available for collection by the Buyers;
(fd) the delivery to the Purchaser of all current cheque books Seller shall procure that ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ and deposit books relating to all bank accounts of the Company;
(g) the delivery to the Purchaser of all documents of title relating to the Properties;
(h) the delivery to the Purchaser of copies of the minutes of the meetings of the boards of directors of the Vendor in the agreed form, authorising (in each case) the entry into of the transaction the subject of this Agreement, approving this Agreement and any other agreements or documents to be executed pursuant to or in connection with it and appointing the relevant signatory to sign this Agreement and such other agreements and documents on their behalf certified by the company secretary of the Vendor together with (in each case) confirmation, in the agreed form, from the company secretary that the authority conferred remains valid at Completion;
(i) the passing of effective resolutions of the Directors resolving to register the transfers of the Shares subject only to stamping of the share transfers;
(j) (at the cost of the Vendor) the convening and holding of all such meetings, the passing of all such resolutions, the execution and delivery of all such documents and the taking of all other action to the extent reasonably necessary in order to complete the transfer of title to the Shares to the Purchaser free from all Encumbrances and to enable the Purchaser to exercise and receive all rights and benefits attaching to or arising from the Shares;
(k) with effect from Completion, the appointment as directors and secretary of the Company of such person or persons as the Purchaser shall have nominated and the resignation of each of the Directors (except ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ resign as officers of the Company and that a resolution of the Company is passed for the Company to adopt new Articles of Association in such form as the Buyers may reasonably require;
(e) the Seller shall procure that ▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ resign as officers of Hago Products Limited;
(f) the Seller shall procure that ▇▇▇▇ ▇▇▇▇▇) ▇▇▇▇▇▇ and the secretary ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ resign as trustees of the Company by delivery of a letter under seal from each such Director and the secretary resigning from his offices and from any employment he may have with the Company with effect from Completion and acknowledging that he has no claim against the Company either actual or contingent in respect of any cause matter or thing (statutory or otherwise)Beldray Pension Scheme;
(lg) the resignation of Seller shall procure that the auditors of the Company (without compensation for loss of office or any other claim save for proper professional fees for services rendered in respect of their duties as auditors prior deeds relating to the completion of the 1997 Audit) with effect from completion of the 1997 Audit and the delivery of a statement by them that there are no circumstances connected with their ceasing to hold office Property which they consider should be brought to the attention of the members or creditors of the Company;
(m) revocation of all existing authorities to the bankers of the Company relating to bank accounts and the grant of authority to such persons as the Purchaser may nominate to operate the same;
(n) that all books, records and files of the Company are in its the Seller's possession or under its control and where any such are not at the Properties that the Purchaser is given details of their whereabouts and any necessary authority shall be delivered to collect them;
(o) the delivery to the Purchaser of duly completed and executed transfers of all shares in the capital of Firstpoint Services Limited not registered in the name of the Company, the statutory books and common seal (if any) of Firstpoint Services Limited and certificates or/made available for all of the issued shares in Firstpoint Services Limited.
4.3 Immediately following fulfilment of all the matters referred to in Clause 4.2 the Purchaser shall:
(a) procure that that part of the Consideration payable in cash on Completion is paid by bankers draft to the Vendor's Solicitors (who are hereby irrevocably authorised to receive that consideration) on behalf of the Vendor;
(b) deliver to the Vendor's Solicitors a counterpart of the Tax Covenant duly executed collection by the Purchaser;
(c) if requested, and at the Vendor's cost, deliver to the Vendor's Solicitors a legal opinion in a form reasonably satisfactory to the Vendor as to the validity and enforceability of the guarantee contained within Clause 11 of this Agreement and if such opinion is that such guarantee is not valid and enforceable such amendments shall be made to the guarantee as render it valid and enforceableBuyers; and
(dh) as agent for the Company, repay Seller shall procure that the Inter-appropriate forms to amend the mandate given by the Company Debt by to its bankers draft are supplied to the Vendor's Solicitors (who are hereby irrevocably authorised to receive that payment) on behalf of the Vendor and its subsidiaries and Associates. The delivery of a bankers draft to the Vendor's Solicitors shall be a full and sufficient discharge to the Purchaser for the monies payable on Completion and the Purchaser shall not be concerned to see to the application of any payment by the Purchaser under this Clause 4.3Buyers.
4.4 If all the provisions of Clause 4.2 are not complied with in full on Completion the Purchaser may:
(a) defer Completion to a date not more than 28 days after the date specified in Clause 4.1 in which event the provisions of this Clause 4.4 shall apply to Completion as so deferred; or
(b) proceed to Completion so far as practicable without prejudice to its rights under this Agreement or otherwise and so that any provision of Clause 4.2 which may not have been complied with at Completion shall at the sole discretion of the Purchaser be held over to such future date or dates as the Purchaser may in its sole discretion determine; or
(c) terminate this Agreement (save for Clauses 12, 13, 14 and 20, which shall remain in full force and effect) provided that such termination shall not affect the rights and obligations of the parties which have accrued prior to termination and shall not limit or exclude any other rights or remedies of the Purchaser in respect of any failure by the Vendor to comply with the requirements of Clause 4.2 on the due date.
4.5 The Vendor shall use all reasonable endeavours to procure compliance with the provisions of Clause 4.2 on any date set for Completion in accordance with this Agreement.
4.6 The Vendor undertakes to and covenants with the Purchaser (for itself and as trustee for the Company) that if, after Completion, it is discovered that the Company had on or before Completion given or undertaken any guarantees, indemnities or similar securities in respect of the obligations or liabilities of any person other than the Company and such guarantees, indemnities or similar securities were not finally and unconditionally released on or before Completion, the Vendor will fully indemnify the Purchaser and the Company and keep each of them fully indemnified on demand against all claims, demands, actions, proceedings, damages, losses, costs, expenses or liabilities suffered or incurred by the Purchaser or the Company under or in connection with such guarantees, indemnities or similar obligations.
Appears in 1 contract
Sources: Sale and Purchase Agreement (Krug International Corp)
Completion. 4.1 (A) Completion shall take place at the offices of the Purchaser's Solicitors immediately following the signing of this Agreement or Chao and ▇▇▇▇▇ at such other place or time as the Vendor and the Purchaser may agree.
4.2 At Completion the Vendor shall procure:
(a) the delivery to the Purchaser of duly completed and executed transfers of the Shares by the registered holders of the Shares in favour of the Purchaser or its nominees together with valid share certificates representing the Shares and all (if any) other documents required to give good title to the Shares;
(b) the delivery to the Purchaser of powers of attorney in the agreed form duly executed by the registered holders of the Shares;
(c) the delivery to the Purchaser of the Tax Covenant duly executed by the Vendor;
(d) the delivery to the Purchaser of the followingSuite 601, each duly executed and in form and substance satisfactory to the Purchaser:-
(i) a deed of release given in relation to the Company Guarantee;
(ii) a deed of release by each person holding or being entitled to any Encumbrance over the Shares or any of the assets of the Company;
(iii) a deed of waiver by the Vendor waiving any claim it or any of its subsidiaries or Associates may have against the Company;
(iv) deeds of waiver by each co-guarantor of the Company in respect of the Company Guarantee;
(e) the delivery to the Purchaser of the statutory books (duly written up to date) and the certificate(s) of incorporation of the Company;
(f) the delivery to the Purchaser of all current cheque books and deposit books relating to all bank accounts of the Company;
(g) the delivery to the Purchaser of all documents of title relating to the Properties;
(h) the delivery to the Purchaser of copies of the minutes of the meetings of the boards of directors of the Vendor in the agreed formAsia Pacific Finance Tower, authorising (in each case) the entry into of the transaction the subject of this Agreement, approving this Agreement and any other agreements or documents to be executed pursuant to or in connection with it and appointing the relevant signatory to sign this Agreement and such other agreements and documents on their behalf certified by the company secretary of the Vendor together with (in each case) confirmation, in the agreed form, from the company secretary that the authority conferred remains valid at Completion;
(i) the passing of effective resolutions of the Directors resolving to register the transfers of the Shares subject only to stamping of the share transfers;
(j) (at the cost of the Vendor) the convening and holding of all such meetings, the passing of all such resolutions, the execution and delivery of all such documents and the taking of all other action to the extent reasonably necessary in order to complete the transfer of title to the Shares to the Purchaser free from all Encumbrances and to enable the Purchaser to exercise and receive all rights and benefits attaching to or arising from the Shares;
(k) with effect from Completion, the appointment as directors and secretary of the Company of such person or persons as the Purchaser shall have nominated and the resignation of each of the Directors (except ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ and ▇▇▇▇ ▇▇▇▇▇upon the signing of this Agreement.
(B) and At Completion, the secretary following transactions shall take place:-
(1) SAI in its capacity as the sole shareholder of the Company by delivery entitled to vote at its general meetings shall pass in writing the resolution as set out in Schedule 2 of a letter under seal from each such Director and the secretary resigning from his offices and from any employment he may have with the Company with effect from Completion and acknowledging that he has no claim against the Company either actual or contingent in respect of any cause matter or thing (statutory or otherwise)this Agreement;
(l2) the resignation Company shall:-
(i) deliver to the Investors a certified copy of the auditors Board resolution of the Company and SIHL (without compensation for loss of office or any other claim save for proper professional fees for services rendered in respect of their duties as auditors prior to the i) approving and authorising execution and completion of the 1997 Auditthis Agreement; and (ii) with resolving to effect from completion of the 1997 Audit and the delivery of a statement by them do all that there are no circumstances connected with their ceasing is necessary to hold office which they consider should be brought give effect to the attention of the members or creditors of the Companythis Agreement;
(mii) revocation of all existing authorities deliver to the bankers Investors a certified copy of the Company relating to bank accounts Board resolution of SAI (i) approving and authorising execution and completion of this Agreement; (ii) approving and authorising the execution of the Guarantee and the grant issue of authority the SAI Shares; and (iii) resolving to such persons effect and do all that is necessary to give effect to this Agreement and the Guarantee;
(iii) deliver to the Investors a certified copy of Board resolution from each of CIBHL and SPC in each approving and authorising the execution and completion of this Agreement and the Guarantee and resolving to effect and do all that is necessary to give effect to this Agreement and the Guarantee;
(iv) deliver to the Investors a certified copy of Board resolution from ACL approving and authorising the execution and completion of this Agreement and the ACL Undertaking and resolving to effect and do all that is necessary to give effect to this Agreement and the ACL Undertaking;
(v) deliver to the Investors a certified copy of Board resolution from ERL approving and authorising the execution and completion of this Agreement and resolving to effect and do all that is necessary to give effect to this Agreement; and
(vi) deliver evidence satisfactory to the Investors that the Company has effected payment by telegraphic transfer to the Investors of the amount of $520,000.00 required to be paid by the Company on completion as set out in the Purchaser may nominate Repayment Schedule;
(3) ERL shall execute and deliver to operate Brilliant Future Holdings Limited the Deed of Share Mortgage and the Board resolution of ERL approving its execution of the same;
(n4) that all booksSAI, records CIBHL and files of SPC shall enter into the Company are in its possession or under its control and where any such are not at the Properties that the Purchaser is given details of their whereabouts and any necessary authority to collect them;
(o) the delivery to the Purchaser of duly completed and executed transfers of all shares Guarantee in the capital of Firstpoint Services Limited not registered form as set out in the name of the Company, the statutory books and common seal (if any) of Firstpoint Services Limited and certificates for all of the issued shares in Firstpoint Services Limited.
4.3 Immediately following fulfilment of all the matters referred to in Clause 4.2 the Purchaser shall:
(a) procure that that part of the Consideration payable in cash on Completion is paid by bankers draft to the Vendor's Solicitors (who are hereby irrevocably authorised to receive that consideration) on behalf of the Vendor;
(b) deliver to the Vendor's Solicitors a counterpart of the Tax Covenant duly executed by the Purchaser;
(c) if requested, and at the Vendor's cost, deliver to the Vendor's Solicitors a legal opinion in a form reasonably satisfactory to the Vendor as to the validity and enforceability of the guarantee contained within Clause 11 of this Agreement and if such opinion is that such guarantee is not valid and enforceable such amendments shall be made to the guarantee as render it valid and enforceableSchedule 4 hereof; and
(d5) ACL shall enter into the ACL Undertaking in the form as agent for set out in Schedule 5 hereof.
(C) All the Companyevents which are to take place at Completion shall take place simultaneously and no party shall be obliged to complete this Agreement unless the other parties simultaneously comply with their respective obligations contained in sub-clause (B) of this clause.
(D) For the avoidance of doubt, repay the Inter-Company Debt by bankers draft to the Vendor's Solicitors (who are hereby irrevocably authorised to receive that payment) on behalf continuing obligations of the Vendor and its subsidiaries and Associates. The delivery of a bankers draft to the Vendor's Solicitors shall be a full and sufficient discharge to the Purchaser for the monies payable on Completion and the Purchaser shall not be concerned to see to the application of any payment by the Purchaser under this Clause 4.3.
4.4 If all the provisions of Clause 4.2 are not complied with in full on Completion the Purchaser may:
(a) defer Completion to a date not more than 28 days after the date specified in Clause 4.1 in which event the provisions of this Clause 4.4 shall apply to Completion as so deferred; or
(b) proceed to Completion so far as practicable without prejudice to its rights Default Parties under this Agreement or otherwise and so that any provision of Clause 4.2 which may not have been complied with at Completion shall at the sole discretion of the Purchaser be held over to such future date or dates as the Purchaser may in its sole discretion determine; or
(c) terminate this Agreement (save for Clauses 12, 13, 14 and 20, which shall remain in full force and effect) provided that such termination shall not affect the rights and obligations cease as a result of the parties which have accrued prior to termination and shall not limit or exclude any other rights or remedies of the Purchaser in respect of any failure by the Vendor to comply with the requirements of Clause 4.2 on the due dateCompletion.
4.5 The Vendor shall use all reasonable endeavours to procure compliance with the provisions of Clause 4.2 on any date set for Completion in accordance with this Agreement.
4.6 The Vendor undertakes to and covenants with the Purchaser (for itself and as trustee for the Company) that if, after Completion, it is discovered that the Company had on or before Completion given or undertaken any guarantees, indemnities or similar securities in respect of the obligations or liabilities of any person other than the Company and such guarantees, indemnities or similar securities were not finally and unconditionally released on or before Completion, the Vendor will fully indemnify the Purchaser and the Company and keep each of them fully indemnified on demand against all claims, demands, actions, proceedings, damages, losses, costs, expenses or liabilities suffered or incurred by the Purchaser or the Company under or in connection with such guarantees, indemnities or similar obligations.
Appears in 1 contract
Completion. 4.1 Completion shall take place at the offices of the Purchaser's Solicitors immediately on the Completion Date and all (but not part only unless the parties shall so agree) of the following the signing of this Agreement or at such other place or time as the Vendor and the Purchaser may agree.
4.2 At Completion the Vendor business shall procurebe transacted:
(a) the delivery Vendors shall deliver to the Purchaser or, in the case of duly completed paragraphs (ii) and executed (iii) below, make available for collection by the Purchaser or its authorised representatives:
(i) transfers in respect of the Shares by the registered holders of the Shares duly executed and completed in favour of the Purchaser or its nominees nominee, together with valid share the certificate or certificates representing therefore in the Shares names of the transferors;
(ii) (as agents for the Company) all of the Company's statutory and all minute books written up to date and its Common Seal, Certificate of Incorporation, any Certificate or Certificates of Incorporation on Change of Name and copies of its Memorandum and Articles of Association;
(if anyiii) other the deeds and documents required to give good of title to the Shares;
Leasehold Properties; (biv) a letter from the delivery Vendors and the Purchaser to the Purchaser of powers of attorney Vendors' Solicitors and the Purchaser's Solicitors in the agreed form duly executed by the Vendors and the Purchaser (being the Escrow Letter); (v) the Property Sale Agreement duly executed by AT&T ISTEL; (vi) the Transitional Services Amendment Agreements duly executed by the parties thereto;
(b) the Vendors shall:
(i) cause the transfers mentioned in clause 4.1(a)((i)) to be resolved to be registered holders by the Company (subject only to their being duly stamped);
(ii) cause the persons named in part A of Schedule 4 to be validly appointed as additional Directors and the person named in part B of Schedule 4 to be validly appointed as Secretary of the SharesCompany; and
(iii) on such appointments being made, cause the persons named in part C of Schedule 4 to cease to be Directors and the person named in part D of Schedule 4 to cease to be Secretary of the Company;
(c) the delivery Purchaser shall pay:
(i) $125,000,000 (being the Purchase Price payable pursuant to clause 3.2(a)) and the sum of $7,763,921 on account of any Working Capital Payment payable pursuant to clause 3.2(b) by electronic funds transfer for value to the Purchaser of US Account; and
(ii) shall pay an amount equal to the Tax Covenant duly executed by Escrow Amount to the VendorEscrow Account (and the Vendors' Solicitors and the Purchaser's Solicitors are hereby authorised to receive it in such account);
(d) the delivery to the Purchaser of the following, each duly executed and parties shall join in form and substance satisfactory to the Purchaser:-procuring that:
(i) a deed the current accounting reference period of release given in relation to the Company Guaranteeshall be altered so as to end on the Completion Date;
(ii) a deed an agreement for lease in the agreed form in respect of release by each person holding or being entitled to any Encumbrance over the Shares or any of the assets Properties described in Part B of Schedule 2 is entered into by the Companyparties identified against each such property;
(iii) a deed of waiver by an agreement for lease in the Vendor waiving any claim it or any of its subsidiaries or Associates may have against the Company;
(iv) deeds of waiver by each co-guarantor of the Company agreed form in respect of the Company Guarantee;Property described in Part C of Schedule 2 is entered into by the parties identified against such property.
(e) the delivery to 4.2 Neither the Purchaser of nor the statutory books (duly written up Vendors shall be obliged to date) and complete this Agreement unless the certificate(s) of incorporation of Vendors comply or procure compliance with or, as the Company;
(f) the delivery to case may be, the Purchaser complies or procures compliance with, the requirements of all current cheque books and deposit books relating to all bank accounts of the Company;clause 4.1.
(g) the delivery to 4.3 Neither the Purchaser of all documents of title relating to nor the Properties;
(h) the delivery to the Purchaser of copies of the minutes of the meetings of the boards of directors of the Vendor in the agreed form, authorising (in each case) the entry into of the transaction the subject of this Agreement, approving this Agreement and any other agreements or documents to Vendors shall be executed pursuant to or in connection with it and appointing the relevant signatory to sign this Agreement and such other agreements and documents on their behalf certified by the company secretary of the Vendor together with (in each case) confirmation, in the agreed form, from the company secretary that the authority conferred remains valid at Completion;
(i) the passing of effective resolutions of the Directors resolving to register the transfers of the Shares subject only to stamping of the share transfers;
(j) (at the cost of the Vendor) the convening and holding of all such meetings, the passing of all such resolutions, the execution and delivery of all such documents and the taking of all other action to the extent reasonably necessary in order obliged to complete the transfer sale and purchase of title to the Shares to the Purchaser free from all Encumbrances and to enable the Purchaser to exercise and receive all rights and benefits attaching to or arising from the Shares;
(k) with effect from Completion, the appointment as directors and secretary of the Company of such person or persons as the Purchaser shall have nominated and the resignation of each of the Directors (except ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ and ▇▇▇▇ ▇▇▇▇▇) and the secretary of the Company by delivery of a letter under seal from each such Director and the secretary resigning from his offices and from any employment he may have with the Company with effect from Completion and acknowledging that he has no claim against the Company either actual or contingent in respect of any cause matter or thing (statutory or otherwise);
(l) the resignation of the auditors of the Company (without compensation for loss of office or any other claim save for proper professional fees for services rendered in respect of their duties as auditors prior to the completion of the 1997 Audit) with effect from completion of the 1997 Audit and the delivery of a statement by them that there are no circumstances connected with their ceasing to hold office which they consider should be brought to the attention of the members or creditors of the Company;
(m) revocation of all existing authorities to the bankers of the Company relating to bank accounts and the grant of authority to such persons as the Purchaser may nominate to operate the same;
(n) that all books, records and files of the Company are in its possession or under its control and where any such are some but not at the Properties that the Purchaser is given details of their whereabouts and any necessary authority to collect them;
(o) the delivery to the Purchaser of duly completed and executed transfers of all shares in the capital of Firstpoint Services Limited not registered in the name of the Company, the statutory books and common seal (if any) of Firstpoint Services Limited and certificates for all of the issued shares in Firstpoint Services LimitedShares.
4.3 Immediately following fulfilment of all the matters referred to in Clause 4.2 the Purchaser shall:
(a) procure that that part of the Consideration payable in cash on Completion is paid by bankers draft to the Vendor's Solicitors (who are hereby irrevocably authorised to receive that consideration) on behalf of the Vendor;
(b) deliver to the Vendor's Solicitors a counterpart of the Tax Covenant duly executed by the Purchaser;
(c) if requested, and at the Vendor's cost, deliver to the Vendor's Solicitors a legal opinion in a form reasonably satisfactory to the Vendor as to the validity and enforceability of the guarantee contained within Clause 11 of this Agreement and if such opinion is that such guarantee is not valid and enforceable such amendments shall be made to the guarantee as render it valid and enforceable; and
(d) as agent for the Company, repay the Inter-Company Debt by bankers draft to the Vendor's Solicitors (who are hereby irrevocably authorised to receive that payment) on behalf of the Vendor and its subsidiaries and Associates. The delivery of a bankers draft to the Vendor's Solicitors shall be a full and sufficient discharge to the Purchaser for the monies payable on Completion and the Purchaser shall not be concerned to see to the application of any payment by the Purchaser under this Clause 4.3.
4.4 If all the provisions of Clause 4.2 are not complied with in full on Completion the Purchaser may:
(a) defer Completion to a date not more than 28 days after the date specified in Clause 4.1 in which event the provisions of this Clause 4.4 shall apply to Completion as so deferred; or
(b) proceed to Completion so far as practicable without prejudice to its rights under this Agreement or otherwise and so that any provision of Clause 4.2 which may not have been complied with at Completion shall at the sole discretion of the Purchaser be held over to such future date or dates as the Purchaser may in its sole discretion determine; or
(c) terminate this Agreement (save for Clauses 12, 13, 14 and 20, which shall remain in full force and effect) provided that such termination shall not affect the rights and obligations of the parties which have accrued prior to termination and shall not limit or exclude any other rights or remedies of the Purchaser in respect of any failure by the Vendor to comply with the requirements of Clause 4.2 on the due date.
4.5 The Vendor shall use all reasonable endeavours to procure compliance with the provisions of Clause 4.2 on any date set for Completion in accordance with this Agreement.
4.6 The Vendor undertakes to and covenants with the Purchaser (for itself and as trustee for the Company) that if, after Completion, it is discovered that the Company had on or before Completion given or undertaken any guarantees, indemnities or similar securities in respect of the obligations or liabilities of any person other than the Company and such guarantees, indemnities or similar securities were not finally and unconditionally released on or before Completion, the Vendor will fully indemnify the Purchaser and the Company and keep each of them fully indemnified on demand against all claims, demands, actions, proceedings, damages, losses, costs, expenses or liabilities suffered or incurred by the Purchaser or the Company under or in connection with such guarantees, indemnities or similar obligations.
Appears in 1 contract
Sources: Agreement for the Sale and Purchase of Shares (Viatel Inc)
Completion. 4.1 6.1 Completion place and date Completion shall take place at the offices of the Purchaser's Solicitors immediately following the signing of this Agreement or at such other place or time as the Vendor and the Purchaser may agree.
4.2 At Completion the Vendor shall procure:
(a) the delivery to the Purchaser of duly completed and executed transfers of the Shares by the registered holders of the Shares in favour of the Purchaser or its nominees together with valid share certificates representing the Shares and all (if any) other documents required to give good title to the Shares;
(b) the delivery to the Purchaser of powers of attorney in the agreed form duly executed by the registered holders of the Shares;
(c) the delivery to the Purchaser of the Tax Covenant duly executed by the Vendor;
(d) the delivery to the Purchaser of the following, each duly executed and in form and substance satisfactory to the Purchaser:-
(i) a deed of release given in relation to the Company Guarantee;
(ii) a deed of release by each person holding or being entitled to any Encumbrance over the Shares or any of the assets of the Company;
(iii) a deed of waiver by the Vendor waiving any claim it or any of its subsidiaries or Associates may have against the Company;
(iv) deeds of waiver by each co-guarantor of the Company in respect of the Company Guarantee;
(e) the delivery to the Purchaser of the statutory books (duly written up to date) and the certificate(s) of incorporation of the Company;
(f) the delivery to the Purchaser of all current cheque books and deposit books relating to all bank accounts of the Company;
(g) the delivery to the Purchaser of all documents of title relating to the Properties;
(h) the delivery to the Purchaser of copies of the minutes of the meetings of the boards of directors of the Vendor in the agreed form, authorising (in each case) the entry into of the transaction the subject of this Agreement, approving this Agreement and any other agreements or documents to be executed pursuant to or in connection with it and appointing the relevant signatory to sign this Agreement and such other agreements and documents on their behalf certified by the company secretary of the Vendor together with (in each case) confirmation, in the agreed form, from the company secretary that the authority conferred remains valid at Completion;
(i) the passing of effective resolutions of the Directors resolving to register the transfers of the Shares subject only to stamping of the share transfers;
(j) (at the cost of the Vendor) the convening and holding of all such meetings, the passing of all such resolutions, the execution and delivery of all such documents and the taking of all other action to the extent reasonably necessary in order to complete the transfer of title to the Shares to the Purchaser free from all Encumbrances and to enable the Purchaser to exercise and receive all rights and benefits attaching to or arising from the Shares;
(k) with effect from Completion, the appointment as directors and secretary of the Company of such person or persons as the Purchaser shall have nominated and the resignation of each of the Directors (except ▇L▇▇▇▇ ▇▇, ▇ ▇'▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Sydney on the day being 2 Business Days after the date on which this Agreement becomes binding under clause 2.1 or on such other date as the parties may agree upon in writing.
6.2 Vendors' obligations on Completion Subject to the Purchaser satisfying its obligations under clause 6.3, on Completion the Vendors will:
(a) (Delivery): give and ▇▇▇▇ ▇▇▇▇▇deliver to the Purchaser a written authority addressed to the Purchaser's solicitors, to release from escrow and to deliver to the Purchaser the following:
(i) the share certificates for the Sale Shares;
(ii) completed transfers of the Sale Shares duly executed by the registered holder of those shares in favour of the Purchaser as transferee;
(iii) written and duly executed resignations with effect from the Completion Date from: A. the directors of the Company that have been appointed as nominees of the Vendors; B. the secretary of the Company by delivery of a letter under seal from each such Director and the secretary resigning from his offices and from any employment he may that have with the Company with effect from Completion and acknowledging that he has no claim against the Company either actual or contingent in respect of any cause matter or thing (statutory or otherwise);
(l) the resignation been appointed as nominees of the auditors of Vendors; and C. if so requested by the Company (without compensation for loss of office or any other claim save for proper professional fees for services rendered in respect of their duties as auditors prior to the completion of the 1997 Audit) with effect from completion of the 1997 Audit and the delivery of a statement by them that there are no circumstances connected with their ceasing to hold office which they consider should be brought to the attention of the members or creditors of the Company;
(m) revocation of all existing authorities to the bankers of the Company relating to bank accounts and the grant of authority to such persons as the Purchaser may nominate to operate the same;
(n) that all books, records and files of the Company are in its possession or under its control and where any such are not at the Properties that the Purchaser is given details of their whereabouts and any necessary authority to collect them;
(o) the delivery to the Purchaser of duly completed and executed transfers of all shares in the capital of Firstpoint Services Limited not registered in the name of the CompanyPurchaser, the statutory books and common seal (if any) of Firstpoint Services Limited and certificates for all of the issued shares in Firstpoint Services LimitedAuditors.
4.3 Immediately following fulfilment of all the matters referred to in Clause 4.2 the Purchaser shall:
(a) procure that that part of the Consideration payable in cash on Completion is paid by bankers draft to the Vendor's Solicitors (who are hereby irrevocably authorised to receive that consideration) on behalf of the Vendor;
(b) deliver to the Vendor's Solicitors (Meetings): cause a counterpart meeting of the Tax Covenant duly executed by the Purchaser;
(c) if requested, and at the Vendor's cost, deliver to the Vendor's Solicitors a legal opinion in a form reasonably satisfactory to the Vendor as to the validity and enforceability directors of the guarantee contained within Clause 11 of this Agreement and if such opinion is Company to be held at which: (i) persons nominated in writing for that such guarantee is not valid and enforceable such amendments shall be made to the guarantee as render it valid and enforceable; and
(d) as agent for the Company, repay the Inter-Company Debt by bankers draft to the Vendor's Solicitors (who are hereby irrevocably authorised to receive that payment) on behalf of the Vendor and its subsidiaries and Associates. The delivery of a bankers draft to the Vendor's Solicitors shall be a full and sufficient discharge to the Purchaser for the monies payable on Completion and the Purchaser shall not be concerned to see to the application of any payment purpose by the Purchaser under this Clause 4.3.
4.4 If all the provisions of Clause 4.2 are not complied with and having consented in full on Completion the Purchaser may:
(a) defer Completion writing to a date not more than 28 days after the date specified in Clause 4.1 in which event the provisions of this Clause 4.4 shall apply to Completion as so deferred; or
(b) proceed to Completion so far as practicable without prejudice to its rights under this Agreement or otherwise and so that any provision of Clause 4.2 which may not have been complied with at Completion shall at the sole discretion appointment will be appointed directors of the Purchaser be held over to such future date or dates as the Purchaser may Company; (ii) persons nominated in its sole discretion determine; or
(c) terminate this Agreement (save writing for Clauses 12, 13, 14 and 20, which shall remain in full force and effect) provided that such termination shall not affect the rights and obligations of the parties which have accrued prior to termination and shall not limit or exclude any other rights or remedies of the Purchaser in respect of any failure purpose by the Vendor to comply with the requirements of Clause 4.2 on the due date.
4.5 The Vendor shall use all reasonable endeavours to procure compliance with the provisions of Clause 4.2 on any date set for Completion in accordance with this Agreement.
4.6 The Vendor undertakes to and covenants with the Purchaser (for itself and as trustee for the Company) that if, after Completion, it is discovered that the Company had on or before Completion given or undertaken any guarantees, indemnities or similar securities in respect of the obligations or liabilities of any person other than the Company and such guarantees, indemnities or similar securities were not finally and unconditionally released on or before Completion, the Vendor will fully indemnify the Purchaser and having consented in writing to appointment will be appointed secretaries of the Company; (iii) the directors of the Company and keep each resolve to accept the resignations referred to in clause 6.2(a)(iii); (iv) the directors of them fully indemnified on demand against all claims, demands, actions, proceedings, damages, losses, costs, expenses or liabilities suffered or incurred by the Purchaser or the Company under or resolve to register the share transfers referred to in connection with such guarantees, indemnities or similar obligationsclause 6.2(a)(ii) subject to those transfers being stamped.
Appears in 1 contract
Sources: Shareholder Agreement (Hyde Athletic Industries Inc)
Completion. 4.1 5.1 Completion shall take place at the offices of the Purchaser's Solicitors immediately following the signing of this Agreement or at such other place or time as the Vendor and parties may agree on the Completion Date when the following business (but not part only unless the Purchaser may shall so agree.
4.2 At Completion the Vendor ) shall procurebe transacted:
(a) the delivery The Vendors shall deliver to the Purchaser of duly completed and executed Purchaser:
(i) transfers in respect of the Sale Shares by the registered holders of the Shares duly executed and completed in favour of the Purchaser or its nominees as it may direct or have directed, together with valid share the certificates representing therefor and the Shares and all (if any) other documents required to give good title to the Shares;
(b) the delivery to the Purchaser of duly executed powers of attorney in the agreed form duly executed by the registered holders or other authorities under which any of the Shares;
(c) the delivery to the Purchaser transfers have been executed and certified copies of the Tax Covenant duly executed by Minutes recording the Vendor;
(d) the delivery to the Purchaser Resolution of the followingtrustees of such of the Vendors as are trustees, in each duly executed case authorising the sale of the Sale Shares held by those Vendors and the execution of the transfers in form and substance satisfactory to the Purchaser:-
(i) a deed respect of release given in relation to the Company Guaranteethem;
(ii) such other documents as may be required to give a deed good title to the Sale Shares and to enable the Purchaser or its nominees to become the registered holders thereof;
(iii) (in respect of release the Company) its statutory and minute books written up to date, and its Common Seal, Certificate of Incorporation, any Certificate or Certificates of Incorporation on Change of Name and other documents and records including copies of its Memorandum and Articles of Association;
(iv) the Taxation Deed duly executed by each person holding or being entitled of the parties thereto;
(v) evidence in a form satisfactory to the Purchaser that all Guarantees given by any Encumbrance over the Shares or Group Company in respect of liabilities of any of the assets Vendors have been released; and
(vi) a letter in a form reasonably acceptable to the Purchaser from ▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. confirming that neither the Purchaser nor its parent nor any member of the Purchaser's group is a competitor of International Space Brokers Inc. and accordingly that the acquisition by the Purchaser of the Company pursuant to this Agreement will not trigger the option provision in the Stockholder Agreement dated 28 January 1994 in respect of International Space Brokers Inc. and made between the Company (1) ▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. (2) and Le Blanc ▇▇ ▇▇▇▇▇▇▇ (3).
(b) The Vendors shall:
(i) cause the transfers mentioned in clause 5.1(a)
(i) to be resolved to be registered (subject only to their being duly stamped) notwithstanding any provision to the contrary in the Articles of Association of the Company;
(iiiii) a deed cause the persons named in part A of waiver by the Vendor waiving any claim it or any of its subsidiaries or Associates may have against the Company;
(iv) deeds of waiver by each co-guarantor of the Company in respect of the Company Guarantee;
(e) the delivery schedule 7 to the Purchaser of the statutory books (duly written up to date) and the certificate(s) of incorporation be validly appointed as additional Directors of the Company;; and
(fiii) the delivery to the Purchaser of all current cheque books and deposit books relating to all bank accounts of the Company;
(g) the delivery to the Purchaser of all documents of title relating to the Properties;
(h) the delivery to the Purchaser of copies of the minutes of the meetings of the boards of directors of the Vendor in the agreed formprocure that ▇. ▇▇▇▇▇▇, authorising (in each case) the entry into of the transaction the subject of this Agreement, approving this Agreement and any other agreements or documents to be executed pursuant to or in connection with it and appointing the relevant signatory to sign this Agreement and such other agreements and documents on their behalf certified by the company secretary of the Vendor together with (in each case) confirmation, in the agreed form, from the company secretary that the authority conferred remains valid at Completion;
(i) the passing of effective resolutions of the Directors resolving to register the transfers of the Shares subject only to stamping of the share transfers;
(j) (at the cost of the Vendor) the convening and holding of all such meetings, the passing of all such resolutions, the execution and delivery of all such documents and the taking of all other action to the extent reasonably necessary in order to complete the transfer of title to the Shares to the Purchaser free from all Encumbrances and to enable the Purchaser to exercise and receive all rights and benefits attaching to or arising from the Shares;
(k) with effect from Completion, the appointment as directors and secretary of the Company of such person or persons as the Purchaser shall have nominated and the resignation of each of the Directors (except ▇. ▇▇▇▇▇▇▇ and ▇. ▇▇▇▇▇▇ shall retire as trustees, and that ▇. ▇▇▇▇▇, ▇. ▇▇▇▇▇ and ▇. ▇▇▇▇▇▇ shall be appointed as additional trustees, of the ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇Pension Scheme; and
(iv) repay to each Group Company, ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ and ▇▇▇▇ ▇▇▇▇▇or procure the repayment thereto of, all (if any) and indebtedness outstanding at Completion from the secretary Vendors or any of them (other than the Continuing Loans) to that Group Company by delivery of a letter under seal from each such Director and the secretary resigning from his offices and from any employment he may have with the Company with effect from Completion and acknowledging that he has no claim against the Company either actual or contingent (other than in respect of any cause matter or thing (statutory or otherwisetrading in the ordinary course of business by that Group Company with any of the Vendors, which shall be repaid in accordance with existing arrangements);.
(lc) the resignation of the auditors of the Company (without compensation for loss of office or any other claim save for proper professional fees for services rendered in respect of their duties as auditors prior to the completion of the 1997 Audit) with effect from completion of the 1997 Audit and the delivery of a statement by them that there are no circumstances connected with their ceasing to hold office which they consider should be brought to the attention of the members or creditors of the Company;
(m) revocation of all existing authorities to the bankers of the Company relating to bank accounts and the grant of authority to such persons as the Purchaser may nominate to operate the same;
(n) that all books, records and files of the Company are in its possession or under its control and where any such are not at the Properties that the Purchaser is given details of their whereabouts and any necessary authority to collect them;
(o) the delivery to the Purchaser of duly completed and executed transfers of all shares in the capital of Firstpoint Services Limited not registered in the name of the Company, the statutory books and common seal (if any) of Firstpoint Services Limited and certificates for all of the issued shares in Firstpoint Services Limited.
4.3 Immediately following fulfilment of all the matters referred to in Clause 4.2 the The Purchaser shall:
(ai) procure that that part pay the Completion Amount by electronic funds transfer to the Nominated Account of the Consideration payable in cash on Completion is paid by bankers draft to the Vendor's Vendors' Solicitors (who are hereby irrevocably authorised to receive that considerationit in such account) on behalf and the Purchaser shall have no obligation as to the distribution or allocation of the Vendoramount so paid between the Vendors;
(bii) deliver to issue the Vendor's Solicitors a counterpart Loan Notes to, and execute certificates in favour of, each of the Tax Covenant duly executed by the Purchaser;
(c) if requested, and at the Vendor's cost, deliver to the Vendor's Solicitors a legal opinion in a form reasonably satisfactory to the Vendor as to the validity and enforceability of the guarantee contained within Clause 11 of this Agreement and if such opinion is that such guarantee is not valid and enforceable such amendments shall be made to the guarantee as render it valid and enforceableDesignated Vendors; and
(diii) as agent for pay the Company, repay the Inter-Company Debt Escrow Amount by bankers draft electronic funds transfer to the Vendor's Solicitors (who are hereby irrevocably authorised to receive that payment) on behalf Escrow Account; and the payment of the Vendor and its subsidiaries and Associates. The delivery of such monies into such accounts shall constitute a bankers draft to the Vendor's Solicitors shall be a full and sufficient good discharge to the Purchaser Purchaser.
(d) The parties shall join in procuring that:
(i) all existing bank mandates in force for the monies payable on Completion and Company shall be altered (in such manner as the Purchaser shall not be concerned at Completion require) to see reflect the resignations and appointments referred to above;
(ii) all the application of any payment Group Companies shall repay all (if any) loans made to them by the Purchaser under this Clause 4.3.
4.4 If all the provisions Vendors (or any of Clause 4.2 are not complied with in full on Completion the Purchaser may:them) and outstanding at Completion;
(aiii) defer Completion to a date not more than 28 days after the date specified in Clause 4.1 in which event Key Employees shall enter into the provisions of this Clause 4.4 shall apply to Completion as so deferredKey Employment Agreements; orand
(biv) proceed to Completion so far as practicable without prejudice to its rights under this Agreement or otherwise and so that any provision of Clause 4.2 which may not have been complied with at Completion shall at the sole discretion each of the Purchaser Contribution Agreements will be held over to such future date or dates as the Purchaser may in its sole discretion determine; or
(c) terminate this Agreement (save for Clauses 12, 13, 14 and 20, which shall remain in full force and effect) provided that such termination shall not affect the rights and obligations entered into by each of the parties which have accrued prior to termination and shall not limit or exclude any other rights or remedies of the Purchaser in respect of any failure by the Vendor to comply with the requirements of Clause 4.2 on the due date.
4.5 The Vendor shall use all reasonable endeavours to procure compliance with the provisions of Clause 4.2 on any date set for Completion in accordance with this Agreement.
4.6 The Vendor undertakes to and covenants with the Purchaser (for itself and as trustee for the Company) that ifWarrantors, after Completion, it is discovered that the Company had on or before Completion given or undertaken any guarantees, indemnities or similar securities in respect of the obligations or liabilities of any person other than the Company and such guarantees, indemnities or similar securities were not finally and unconditionally released on or before Completion, the Vendor will fully indemnify the Purchaser his Associates and the Company and keep each of them fully indemnified on demand against all claims, demands, actions, proceedings, damages, losses, costs, expenses or liabilities suffered or incurred by the Purchaser or the Company under or in connection with such guarantees, indemnities or similar obligationsPurchaser.
Appears in 1 contract
Sources: Agreement for the Sale/Purchase of Shares (Blanch E W Holdings Inc)
Completion. 4.1 Completion shall take place at the offices of the Purchaser's Solicitors immediately following execution by the signing parties of this Agreement or at such other place or time as the Vendor and the Purchaser may agreeAgreement.
4.2 At On the Completion Date, the Vendor Company and the Subscriber shall procureexecute the Warrant Instrument.
4.3 On the Completion Date, the Company shall:
(a) the delivery deliver to the Purchaser of duly completed and executed transfers Subscriber as evidence of the Shares by authority of each person executing a document on the registered holders Company’s behalf a copy of the Shares in favour minutes of a duly held meeting of the Purchaser board of directors of the Company (or its nominees together with valid share certificates representing a duly constituted committee thereof) authorising (i) execution of the Shares Subscription Agreement, the Warrant Instrument and all the Warrant Certificate, (if anyii) other documents required to give good title to the Sharesallotment and issue of the 2009 Preference Stock and (iii) the issue of the Warrants and, where such actions are authorised by a committee of the board of directors of the Company, a copy of the minutes of a duly held meeting of the directors constituting such committee or the relevant extract thereof;
(b) allot and issue the delivery 2009 Preference Stock to the Purchaser of powers of attorney in the agreed form duly executed by the registered holders of the SharesSubscriber credited as fully paid;
(c) issue the delivery Warrants to the Purchaser of the Tax Covenant duly executed by the VendorSubscriber;
(d) enter the delivery to the Purchaser Subscriber, or its nominee, in its register of the following, each duly executed and in form and substance satisfactory to the Purchaser:-
(i) members as a deed of release given in relation to the Company Guarantee;
(ii) a deed of release by each person holding or being entitled to any Encumbrance over the Shares or any of the assets of the Company;
(iii) a deed of waiver by the Vendor waiving any claim it or any of its subsidiaries or Associates may have against the Company;
(iv) deeds of waiver by each co-guarantor stockholder of the Company in respect of the Company Guarantee;
(e) the delivery 2009 Preference Stock, and confirm in writing to the Purchaser Subscriber that the Subscriber is entitled to exercise its voting rights pursuant to the Bye-laws at any subsequent meeting of the statutory books (duly written up to date) and the certificate(s) of incorporation members of the Company;
(e) enter the Subscriber, or its nominee, in the warrant register created under the terms of the Warrant Instrument in respect of the warrants issued to it;
(f) the delivery execute and deliver a stock certificate to the Purchaser of all current cheque books and deposit books relating to all bank accounts Subscriber or its nominee in respect of the Company2009 Preference Stock;
(g) the delivery execute and deliver a Warrant Certificate to the Purchaser Subscriber or its nominee in respect of all documents of title relating to the Properties;Warrants; and
(h) the delivery pay an amount equal to the Purchaser of copies of Arrangement Fee to the minutes of the meetings of the boards of directors of the Vendor in the agreed formSubscriber, authorising (in each case) the entry into of the transaction the subject of this Agreement, approving this Agreement and any other agreements or documents to be executed pursuant to or in connection with it and appointing the relevant signatory to sign this Agreement and such other agreements and documents on their behalf certified satisfied by the company secretary of the Vendor together with (in each case) confirmation, in the agreed form, deduction from the company secretary that Subscription Amount as set out in Clause 4.4.
4.4 On the authority conferred remains valid at Completion;
(i) the passing of effective resolutions of the Directors resolving to register the transfers of the Shares subject only to stamping of the share transfers;
(j) (at the cost of the Vendor) the convening and holding of all such meetingsCompletion Date, the passing of all such resolutions, the execution and delivery of all such documents and the taking of all other action Subscriber shall pay an amount equal to the extent reasonably necessary in order Subscription Amount (less the Arrangement Fee) to complete the transfer of title to the Shares to the Purchaser free from all Encumbrances and to enable the Purchaser to exercise and receive all rights and benefits attaching to or arising from the Shares;
(k) with effect from Completion, the appointment as directors and secretary of the Company of such person or persons as the Purchaser shall have a bank account nominated and the resignation of each of the Directors (except ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ and ▇▇▇▇ ▇▇▇▇▇) and the secretary of the Company by delivery of a letter under seal from each such Director and the secretary resigning from his offices and from any employment he may have with the Company with effect from Completion and acknowledging that he has no claim against the Company either actual or contingent in respect of any cause matter or thing (statutory or otherwise);
(l) the resignation of the auditors of the Company (without compensation for loss of office or any other claim save for proper professional fees for services rendered in respect of their duties as auditors prior to the completion of the 1997 Audit) with effect from completion of the 1997 Audit and the delivery of a statement by them that there are no circumstances connected with their ceasing to hold office which they consider should be brought to the attention of the members or creditors of the Company;
(m) revocation of all existing authorities to the bankers of the Company relating to bank accounts and the grant of authority to such persons as the Purchaser may nominate to operate the same;
(n) that all books, records and files of the Company are in its possession or under its control and where any such are not at the Properties that the Purchaser is given details of their whereabouts and any necessary authority to collect them;
(o) the delivery to the Purchaser of duly completed and executed transfers of all shares in the capital of Firstpoint Services Limited not registered in the name of the Company, the statutory books and common seal (if any) of Firstpoint Services Limited and certificates for all of the issued shares in Firstpoint Services Limited.
4.3 Immediately following fulfilment of all the matters referred to in Clause 4.2 the Purchaser shall:
(a) procure that that part of the Consideration payable in cash on Completion is paid by bankers draft to the Vendor's Solicitors (who are hereby irrevocably authorised to receive that consideration) on behalf of the Vendor;
(b) deliver to the Vendor's Solicitors a counterpart of the Tax Covenant duly executed by the Purchaser;
(c) if requested, and at the Vendor's cost, deliver to the Vendor's Solicitors a legal opinion in a form reasonably satisfactory to the Vendor as to the validity and enforceability of the guarantee contained within Clause 11 of this Agreement and if such opinion is that such guarantee is not valid and enforceable such amendments nomination shall be made to the guarantee as render it valid and enforceable; and
in writing at least three (d3) as agent for the Company, repay the Inter-Company Debt by bankers draft to the Vendor's Solicitors (who are hereby irrevocably authorised to receive that payment) on behalf of the Vendor and its subsidiaries and Associates. The delivery of a bankers draft to the Vendor's Solicitors shall be a full and sufficient discharge to the Purchaser for the monies payable on Completion and the Purchaser shall not be concerned to see to the application of any payment by the Purchaser under this Clause 4.3Business Days in advance).
4.4 If all the provisions of Clause 4.2 are not complied with in full on Completion the Purchaser may:
(a) defer Completion to a date not more than 28 days after the date specified in Clause 4.1 in which event the provisions of this Clause 4.4 shall apply to Completion as so deferred; or
(b) proceed to Completion so far as practicable without prejudice to its rights under this Agreement or otherwise and so that any provision of Clause 4.2 which may not have been complied with at Completion shall at the sole discretion of the Purchaser be held over to such future date or dates as the Purchaser may in its sole discretion determine; or
(c) terminate this Agreement (save for Clauses 12, 13, 14 and 20, which shall remain in full force and effect) provided that such termination shall not affect the rights and obligations of the parties which have accrued prior to termination and shall not limit or exclude any other rights or remedies of the Purchaser in respect of any failure by the Vendor to comply with the requirements of Clause 4.2 on the due date.
4.5 The Vendor shall use all reasonable endeavours to procure compliance with the provisions of Clause 4.2 on any date set for Completion in accordance with this Agreement.
4.6 The Vendor undertakes to and covenants with the Purchaser (for itself and as trustee for the Company) that if, after Completion, it is discovered that the Company had on or before Completion given or undertaken any guarantees, indemnities or similar securities in respect of the obligations or liabilities of any person other than the Company and such guarantees, indemnities or similar securities were not finally and unconditionally released on or before Completion, the Vendor will fully indemnify the Purchaser and the Company and keep each of them fully indemnified on demand against all claims, demands, actions, proceedings, damages, losses, costs, expenses or liabilities suffered or incurred by the Purchaser or the Company under or in connection with such guarantees, indemnities or similar obligations.
Appears in 1 contract
Sources: Subscription Agreement (Governor & Co of the Bank of Ireland)
Completion. 4.1 Subject to the fulfilment of the conditions set out in Clause 2(A), Completion shall take place at 4:00 pm on the offices Completion Date at the principal office of the Purchaser's Solicitors immediately following the signing of this Agreement Company in Hong Kong (or at such other time and/or at such other place to be agreed between the Company and the Placing Agent) when all (but, not part only) of the following business shall be transacted:
(i) the Placing Agent shall effect payment to the Company (and the Company should have received in full of such payment) of an amount equal to the Placing Price multiplied by the number of the Placing Shares successfully placed by the Placing Agent payable in Hong Kong dollars to the Company for the aggregate number of Placing Shares so subscribed less the amounts deducted by the Placing Agent under Clause 6;
(ii) the Company shall allot and issue the Placing Shares in accordance with the details delivered by the Placing Agent as stipulated in Clause 3(E) and shall register without registration fee all such Placees or time their respective nominees (as the Vendor case may be) as members of the Company and deliver or cause to be delivered to the Purchaser may agree.
4.2 At Completion Placing Agent the Vendor shall procurefollowing documents:
(a) the delivery to the Purchaser definitive documents of duly completed and executed transfers title in respect of the Shares by the registered holders of the Placing Shares in favour of the Purchaser persons so registered and in accordance with their respective entitlements hereto in board lots or its nominees together as they may request or deposit the same in CCASS in accordance with valid share certificates representing the Shares and all (if any) other documents required to give good title to instructions of the SharesPlacing Agent;
(b) a certified copy (by any director of the delivery Company) of a board resolution of the Company approving and authorising the execution and completion of this Agreement, the issue and allotment of the Placing Shares to the Purchaser Placees and other transactions as contemplated under this Agreement in order to give full effect to the provisions of powers of attorney in this Agreement and the agreed form duly executed by the registered holders publication of the Shares;Announcement; and
(c) the delivery to the Purchaser of the Tax Covenant duly executed a certified copy (by the Vendor;
(d) the delivery to the Purchaser of the following, each duly executed and in form and substance satisfactory to the Purchaser:-
(i) a deed of release given in relation to the Company Guarantee;
(ii) a deed of release by each person holding or being entitled to any Encumbrance over the Shares or any of the assets director of the Company;
(iii) a deed of waiver the listing approval issued by the Vendor waiving any claim it or any of its subsidiaries or Associates may have against the Company;
(iv) deeds of waiver by each co-guarantor of the Company Stock Exchange in respect of the Company Guarantee;
(e) the delivery to the Purchaser of the statutory books (duly written up to date) and the certificate(s) of incorporation of the Company;
(f) the delivery to the Purchaser of all current cheque books and deposit books relating to all bank accounts of the Company;
(g) the delivery to the Purchaser of all documents of title relating to the Properties;
(h) the delivery to the Purchaser of copies of the minutes of the meetings of the boards of directors of the Vendor in the agreed form, authorising (in each case) the entry into of the transaction the subject of this Agreement, approving this Agreement and any other agreements or documents to be executed pursuant to or in connection with it and appointing the relevant signatory to sign this Agreement and such other agreements and documents on their behalf certified by the company secretary of the Vendor together with (in each case) confirmation, in the agreed form, from the company secretary that the authority conferred remains valid at Completion;
(i) the passing of effective resolutions of the Directors resolving to register the transfers of the Shares subject only to stamping of the share transfers;
(j) (at the cost of the Vendor) the convening and holding of all such meetings, the passing of all such resolutions, the execution and delivery of all such documents and the taking of all other action to the extent reasonably necessary in order to complete the transfer of title to the Shares to the Purchaser free from all Encumbrances and to enable the Purchaser to exercise and receive all rights and benefits attaching to or arising from the Placing Shares;
(k) with effect from Completion, the appointment as directors and secretary of the Company of such person or persons as the Purchaser shall have nominated and the resignation of each of the Directors (except ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ and ▇▇▇▇ ▇▇▇▇▇) and the secretary of the Company by delivery of a letter under seal from each such Director and the secretary resigning from his offices and from any employment he may have with the Company with effect from Completion and acknowledging that he has no claim against the Company either actual or contingent in respect of any cause matter or thing (statutory or otherwise);
(l) the resignation of the auditors of the Company (without compensation for loss of office or any other claim save for proper professional fees for services rendered in respect of their duties as auditors prior to the completion of the 1997 Audit) with effect from completion of the 1997 Audit and the delivery of a statement by them that there are no circumstances connected with their ceasing to hold office which they consider should be brought to the attention of the members or creditors of the Company;
(m) revocation of all existing authorities to the bankers of the Company relating to bank accounts and the grant of authority to such persons as the Purchaser may nominate to operate the same;
(n) that all books, records and files of the Company are in its possession or under its control and where any such are not at the Properties that the Purchaser is given details of their whereabouts and any necessary authority to collect them;
(o) the delivery to the Purchaser of duly completed and executed transfers of all shares in the capital of Firstpoint Services Limited not registered in the name of the Company, the statutory books and common seal (if any) of Firstpoint Services Limited and certificates for all of the issued shares in Firstpoint Services Limited.
4.3 Immediately following fulfilment of all the matters referred to in Clause 4.2 the Purchaser shall:
(a) procure that that part of the Consideration payable in cash on Completion is paid by bankers draft to the Vendor's Solicitors (who are hereby irrevocably authorised to receive that consideration) on behalf of the Vendor;
(b) deliver to the Vendor's Solicitors a counterpart of the Tax Covenant duly executed by the Purchaser;
(c) if requested, and at the Vendor's cost, deliver to the Vendor's Solicitors a legal opinion in a form reasonably satisfactory to the Vendor as to the validity and enforceability of the guarantee contained within Clause 11 of this Agreement and if such opinion is that such guarantee is not valid and enforceable such amendments shall be made to the guarantee as render it valid and enforceable; and
(d) as agent for the Company, repay the Inter-Company Debt by bankers draft to the Vendor's Solicitors (who are hereby irrevocably authorised to receive that payment) on behalf of the Vendor and its subsidiaries and Associates. The delivery of a bankers draft to the Vendor's Solicitors shall be a full and sufficient discharge to the Purchaser for the monies payable on Completion and the Purchaser shall not be concerned to see to the application of any payment by the Purchaser under this Clause 4.3.
4.4 If all the provisions of Clause 4.2 are not complied with in full on Completion the Purchaser may:
(a) defer Completion to a date not more than 28 days after the date specified in Clause 4.1 in which event the provisions of this Clause 4.4 shall apply to Completion as so deferred; or
(b) proceed to Completion so far as practicable without prejudice to its rights under this Agreement or otherwise and so that any provision of Clause 4.2 which may not have been complied with at Completion shall at the sole discretion of the Purchaser be held over to such future date or dates as the Purchaser may in its sole discretion determine; or
(c) terminate this Agreement (save for Clauses 12, 13, 14 and 20, which shall remain in full force and effect) provided that such termination shall not affect the rights and obligations of the parties which have accrued prior to termination and shall not limit or exclude any other rights or remedies of the Purchaser in respect of any failure by the Vendor to comply with the requirements of Clause 4.2 on the due date.
4.5 The Vendor shall use all reasonable endeavours to procure compliance with the provisions of Clause 4.2 on any date set for Completion in accordance with this Agreement.
4.6 The Vendor undertakes to and covenants with the Purchaser (for itself and as trustee for the Company) that if, after Completion, it is discovered that the Company had on or before Completion given or undertaken any guarantees, indemnities or similar securities in respect of the obligations or liabilities of any person other than the Company and such guarantees, indemnities or similar securities were not finally and unconditionally released on or before Completion, the Vendor will fully indemnify the Purchaser and the Company and keep each of them fully indemnified on demand against all claims, demands, actions, proceedings, damages, losses, costs, expenses or liabilities suffered or incurred by the Purchaser or the Company under or in connection with such guarantees, indemnities or similar obligations.
Appears in 1 contract
Sources: Placing Agreement
Completion. 4.1 Completion shall take place on Completion Date at the offices a place in Florida of the Purchaser's Solicitors immediately United States of America as shall be mutually agreed (time being of the essence) when all (but not part only) of the following the signing of this Agreement or at such other place or time as the Vendor and the Purchaser may agree.
4.2 At Completion the Vendor business shall procurebe transacted:
(a) the delivery The Vendor will deliver or cause to the Purchaser of duly completed and executed transfers of the Shares by the registered holders of the Shares in favour of the Purchaser or its nominees together with valid share certificates representing the Shares and all (if any) other documents required to give good title to the Shares;
(b) the delivery to the Purchaser of powers of attorney in the agreed form duly executed by the registered holders of the Shares;
(c) the delivery to the Purchaser of the Tax Covenant duly executed by the Vendor;
(d) the delivery to the Purchaser of the following, each duly executed and in form and substance satisfactory be delivered to the Purchaser:-
(i) a deed instruments of release given transfer in relation to respect of the Company GuaranteeSale Shares duly executed by the Vendor and its nominee, respectively, in favour of the Purchaser and/or its nominee;
(ii) a deed of release by each person holding or being entitled to any Encumbrance over the Shares or any sold notes in respect of the assets Sale Shares duly executed by the Vendor in favour of the Purchaser;
(iii) the definitive share certificates in respect of the Sale Shares;
(iv) the certificate of incorporation, business registration certificate, all licences required for the operation of the business of the Company which are issued in the name of the Company, common seal, all statutory and minute and other record books and share certificate books of the Company together with all unused share certificate forms and all accounting books and records of the Company;
(iiiv) a deed list of waiver all bank accounts maintained by the Vendor waiving any claim it or any Company, a copy of its subsidiaries or Associates may have against all existing mandates for the Companyoperation of those bank accounts, together with copies of statements of those accounts as at a date not earlier than the fifth Business Day before Completion;
(ivvi) deeds if so requested by the Purchaser, the written resignations of waiver by each co-guarantor all the directors of the Company and/or the Secretary of the Company in respect of the Company Guarantee;
(e) the delivery form satisfactory to the Purchaser of and containing statements by the statutory books (duly written up to date) and the certificate(s) of incorporation of the Company;
(f) the delivery persons resigning to the Purchaser of all current cheque books and deposit books relating to all bank accounts of the Company;
(g) the delivery to the Purchaser of all documents of title relating to the Properties;
(h) the delivery to the Purchaser of copies of the minutes of the meetings of the boards of directors of the Vendor in the agreed form, authorising (in each case) the entry into of the transaction the subject of this Agreement, approving this Agreement and any other agreements or documents to be executed pursuant to or in connection with it and appointing the relevant signatory to sign this Agreement and such other agreements and documents on their behalf certified by the company secretary of the Vendor together with (in each case) confirmation, in the agreed form, from the company secretary effect that the authority conferred remains valid at Completion;
(i) the passing of effective resolutions of the Directors resolving to register the transfers of the Shares subject only to stamping of the share transfers;
(j) (at the cost of the Vendor) the convening and holding of all such meetings, the passing of all such resolutions, the execution and delivery of all such documents and the taking of all other action to the extent reasonably necessary in order to complete the transfer of title to the Shares to the Purchaser free from all Encumbrances and to enable the Purchaser to exercise and receive all rights and benefits attaching to or arising from the Shares;
(k) with effect from Completion, the appointment as directors and secretary of the Company of such person or persons as the Purchaser shall they have nominated and the resignation of each of the Directors (except ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ and ▇▇▇▇ ▇▇▇▇▇) and the secretary of the Company by delivery of a letter under seal from each such Director and the secretary resigning from his offices and from any employment he may have with the Company with effect from Completion and acknowledging that he has no outstanding claim against the Company either actual or contingent in respect of any cause matter or thing (statutory or otherwise);
(l) the resignation of the auditors of the Company (without for compensation for loss of office or any other claim save for proper professional fees for services rendered in respect of their duties as auditors prior to against the completion of the 1997 Audit) with effect Company from completion of the 1997 Audit and the delivery of a statement by them that there are no circumstances connected with their ceasing to hold office which they consider should be brought to the attention of the members or creditors of the Companyare resigning their position(s);
(mvii) revocation of all existing authorities any waivers, consents or other documents required to vest in the bankers Purchaser the full beneficial ownership of the Company relating to bank accounts Sale Shares, and the grant of authority to such persons as enable the Purchaser may nominate to operate procure the same;
(n) that all books, records and files of the Company are in its possession or under its control and where any such are not at the Properties that the Purchaser is given details of their whereabouts and any necessary authority Sale Shares to collect them;
(o) the delivery to the Purchaser of duly completed and executed transfers of all shares in the capital of Firstpoint Services Limited not be registered in the name of the Company, the statutory books Purchaser and common seal its nominee;
(viii) certified true copies of all powers of attorney or other authorities (if any) under which the instruments of Firstpoint Services Limited transfer and/or bought and certificates for all sold notes in respect of the issued shares in Firstpoint Services Limited.
4.3 Immediately following fulfilment of all Sale Shares and/or any other documents contemplated hereby to be executed by the matters referred to in Clause 4.2 the Purchaser shall:Vendor and/or its nominee have been executed;
(aix) procure that that part all consents or approvals or notices required under Hong Kong law in relation to this Agreement as of the Consideration payable in cash on Completion is paid by bankers draft to the Vendor's Solicitors Date; and
(who are hereby irrevocably authorised to receive that considerationx) on behalf certified copies of the Vendor;minutes of the meeting of the board of directors of the Vendor approving and authorising the execution of each of the documents contemplated to be executed at Completion to which it is a party.
(b) deliver to The Vendor will procure that the Vendor's Solicitors following business is transacted at a counterpart meeting of the Tax Covenant duly executed by directors of the Company:-
(i) the directors of the Company will approve the entry in its register of members of the Purchaser and its nominee as the holders of the Sale Shares (subject to stamping) and entries will be made in the register and definitive share certificates issued at the direction of the Purchaser;
(cii) if requestedrequired by the Purchaser, and at the Vendor's cost, deliver to the Vendor's Solicitors a legal opinion in a form reasonably satisfactory to the Vendor as to the validity and enforceability acceptance of the guarantee contained within resignation of all existing directors and secretary of the Company pursuant to Clause 11 4.1(a)(vi) and the appointment of this Agreement such persons nominated by the Purchaser as directors and if such opinion is that such guarantee is not valid and enforceable such amendments shall be made to secretary of the guarantee as render it valid and enforceableCompany; and
(diii) as agent if required by the Purchaser, all existing mandates for the Company, repay the Inter-Company Debt by bankers draft to the Vendor's Solicitors (who are hereby irrevocably authorised to receive that payment) on behalf operation of the Vendor bank accounts of the Company will be revoked and its subsidiaries and Associates. The delivery of a bankers draft new mandates issued giving authority to the Vendor's Solicitors shall be a full and sufficient discharge to the Purchaser for the monies payable on Completion and the Purchaser shall not be concerned to see to the application of any payment such persons nominated by the Purchaser under this Clause 4.3Purchaser.
4.4 If all the provisions of Clause 4.2 are not complied with in full on Completion the Purchaser may:
(a) defer Completion to a date not more than 28 days after the date specified in Clause 4.1 in which event the provisions of this Clause 4.4 shall apply to Completion as so deferred; or
(b) proceed to Completion so far as practicable without prejudice to its rights under this Agreement or otherwise and so that any provision of Clause 4.2 which may not have been complied with at Completion shall at the sole discretion of the Purchaser be held over to such future date or dates as the Purchaser may in its sole discretion determine; or
(c) terminate this Agreement The Purchaser shall deliver to the Vendor (save for Clauses 12, 13, 14 and 20, which shall remain or as it may direct) a cashier's order (drawn on a licensed bank in full force and effectHong Kong or otherwise in immediately available funds) provided that such termination shall not affect in the rights and obligations sum of HK$10,000 (receipt of the parties which have accrued prior to termination and same shall not limit or exclude any other rights or remedies be a valid discharge of the Purchaser in respect of any failure by the Vendor to comply with the requirements of Purchaser's obligation under Clause 4.2 on the due date3).
4.5 The Vendor shall use all reasonable endeavours to procure compliance with the provisions of Clause 4.2 on any date set for Completion in accordance with this Agreement.
4.6 The Vendor undertakes to and covenants with the Purchaser (for itself and as trustee for the Company) that if, after Completion, it is discovered that the Company had on or before Completion given or undertaken any guarantees, indemnities or similar securities in respect of the obligations or liabilities of any person other than the Company and such guarantees, indemnities or similar securities were not finally and unconditionally released on or before Completion, the Vendor will fully indemnify the Purchaser and the Company and keep each of them fully indemnified on demand against all claims, demands, actions, proceedings, damages, losses, costs, expenses or liabilities suffered or incurred by the Purchaser or the Company under or in connection with such guarantees, indemnities or similar obligations.
Appears in 1 contract
Sources: Agreement for the Sale and Purchase of Shares (Newtech Corp)
Completion. 4.1 Completion 7.1 Subject to the provisions of schedule 5, the sale and purchase of the Sale Shares shall take place be completed at the offices of the Purchaser's Solicitors immediately following the signing of this Agreement at 9.00 a.m. on 3 May 1999 (or at such other time or place or time as the Vendor and the Purchaser may parties shall agree).
4.2 At 7.2 On Completion the Vendor 3i shall procure:
(a) the delivery deliver to the Purchaser a duly executed stock transfer forms in respect of duly completed and executed transfers of its Sale Shares together with the Shares by the registered holders of the Shares related share certificates (such stock transfer forms to be in favour of the Purchaser or its nominees, as the Purchaser shall direct) to enable it or its nominees to be registered as the holders of the Sale Shares free from all encumbrances.
7.3 On Completion the Warrantors shall deliver or cause to be delivered to the Purchaser:
(a) duly executed stock transfer forms in respect of the Sale Shares together with valid the related share certificates representing (such stock transfer forms to be in favour of the Shares and all (if anyPurchaser or its nominees, as the Purchaser shall direct) other documents required to give good title to the Shares;to
(b) an acknowledgement from each of the delivery Warrantors to the Purchaser and the Company executed as a deed to the effect that save in relation to remuneration or reimbursement of powers expenses incurred in relation to his or her employment details of attorney which are specified in such deed, there is no outstanding indebtedness owing at Completion from the agreed form duly executed by the registered holders of the SharesCompany to such Warrantor or to any such Warrantor's Affiliate or vice versa;
(c) the delivery to the Purchaser letters of the Tax Covenant duly executed by the Vendor;
(d) the delivery to the Purchaser of the following, each duly executed and in form and substance satisfactory to the Purchaser:-
(i) a deed of release given in relation to the Company Guarantee;
(ii) a deed of release by each person holding or being entitled to any Encumbrance over the Shares or any of the assets of the Company;
(iii) a deed of waiver by the Vendor waiving any claim it or any of its subsidiaries or Associates may have against the Company;
(iv) deeds of waiver by each co-guarantor of the Company in respect of the Company Guarantee;
(e) the delivery to the Purchaser of the statutory books (duly written up to date) and the certificate(s) of incorporation of the Company;
(f) the delivery to the Purchaser of all current cheque books and deposit books relating to all bank accounts of the Company;
(g) the delivery to the Purchaser of all documents of title relating to the Properties;
(h) the delivery to the Purchaser of copies of the minutes of the meetings of the boards of directors of the Vendor resignation in the agreed form, authorising (in each case) the entry into of the transaction the subject of this Agreement, approving this Agreement and any other agreements or documents to be executed pursuant to or in connection with it and appointing the relevant signatory to sign this Agreement and such other agreements and documents on their behalf certified by the company secretary of the Vendor together with (in each case) confirmation, in the agreed form, form from the company secretary that the authority conferred remains valid at Completion;
(i) the passing of effective resolutions of the Directors resolving to register the transfers of the Shares subject only to stamping of the share transfers;
(j) (at the cost of the Vendor) the convening and holding of all such meetings, the passing of all such resolutions, the execution and delivery of all such documents and the taking of all other action to the extent reasonably necessary in order to complete the transfer of title to the Shares to the Purchaser free from all Encumbrances and to enable the Purchaser to exercise and receive all rights and benefits attaching to or arising from the Shares;
(k) with effect from Completion, the appointment as directors and secretary of the Company of such person or persons as the Purchaser shall have nominated and the resignation of each of the Directors (except ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ Ian ▇▇▇▇, ▇▇hn ▇▇▇▇ ▇▇, ▇▇n ▇▇▇▇▇, ▇▇ah▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇ Ian ▇▇▇▇▇▇ ▇▇ directors of the Company;
(d) written confirmation to the Company and the Purchaser that each of the aforementioned departing directors of the Company (other than Ian ▇▇▇▇▇ ▇▇▇ Ian ▇▇▇▇▇▇) and ▇▇s returned or delivered to the secretary Company all property of the Company used, enjoyed or held by delivery them in their capacity as employees or officers of a letter under seal from each such Director and the secretary resigning from his offices and from any employment he may have with the Company with effect from Completion including without prejudice to the generality of the foregoing books, records, papers and acknowledging that he has no claim against information of the Company either actual (on whatever medium stored), motor vehicles, credit cards, keys, security cards, personal computers, software, magnetic or contingent in respect of any cause matter or thing (statutory or otherwise)other discs on which information is stored;
(le) the written resignation of the auditors of the Company (without compensation for loss of office or any other claim save for proper professional fees for services rendered together with a statement in respect of their duties as auditors prior to the completion accordance with section 394 of the 1997 Audit) with effect from completion of the 1997 Audit and the delivery of a statement by them Companies Act that there are no circumstances connected with their ceasing to hold office such resignation which they consider should be brought to the attention of the members or creditors of the Company;
(mf) revocation of all existing authorities to the bankers statutory books of the Company relating complete and accurate up to bank accounts Completion (but not including any acts or transactions to take place at Completion) and any company seal(s), certificates of incorporation, certificates of incorporation on change of name and all unused share certificates of the grant Company and all cheque books of authority to such persons as the Purchaser may nominate to operate the sameCompany;
(ng) that all books, records and files of the Company are in its possession or under its control and where any such are not at the Properties that the Purchaser is given details of their whereabouts and any necessary authority to collect themWarrantors' Disclosure Letter;
(oh) revised contracts in the delivery to agreed form between the Purchaser and each of duly completed Simon Best and executed transfers of all shares in the capital of Firstpoint Services Limited not registered in the name of the Company, the statutory books and common seal (if any) of Firstpoint Services Limited and certificates for all of the issued shares in Firstpoint Services Limited.
4.3 Immediately following fulfilment of all the matters referred to in Clause 4.2 the Purchaser shall:
(a) procure that that part of the Consideration payable in cash on Completion is paid by bankers draft to the Vendor's Solicitors (who are hereby irrevocably authorised to receive that consideration) on behalf of the Vendor;
(b) deliver to the Vendor's Solicitors a counterpart of the Tax Covenant Piers Lincoln duly executed by the Purchaser;parties.
(ci) if requested, and at consultancy agreements in the Vendor's cost, deliver to the Vendor's Solicitors a legal opinion in a agreed form reasonably satisfactory to the Vendor as to the validity and enforceability of the guarantee contained within Clause 11 of this Agreement and if such opinion is that such guarantee is not valid and enforceable such amendments shall be made to the guarantee as render it valid and enforceable; and
(d) as agent for the Company, repay the Inter-Company Debt by bankers draft to the Vendor's Solicitors (who are hereby irrevocably authorised to receive that payment) on behalf of the Vendor and its subsidiaries and Associates. The delivery of a bankers draft to the Vendor's Solicitors shall be a full and sufficient discharge to the Purchaser for the monies payable on Completion and the Purchaser shall not be concerned to see to the application of any payment by the Purchaser under this Clause 4.3.
4.4 If all the provisions of Clause 4.2 are not complied with in full on Completion the Purchaser may:
(a) defer Completion to a date not more than 28 days after the date specified in Clause 4.1 in which event the provisions of this Clause 4.4 shall apply to Completion as so deferred; or
(b) proceed to Completion so far as practicable without prejudice to its rights under this Agreement or otherwise and so that any provision of Clause 4.2 which may not have been complied with at Completion shall at the sole discretion of the Purchaser be held over to such future date or dates as the Purchaser may in its sole discretion determine; or
(c) terminate this Agreement (save for Clauses 12, 13, 14 and 20, which shall remain in full force and effect) provided that such termination shall not affect the rights and obligations of the parties which have accrued prior to termination and shall not limit or exclude any other rights or remedies of the Purchaser in respect of any failure by the Vendor to comply with the requirements of Clause 4.2 on the due date.
4.5 The Vendor shall use all reasonable endeavours to procure compliance with the provisions of Clause 4.2 on any date set for Completion in accordance with this Agreement.
4.6 The Vendor undertakes to and covenants with the Purchaser (for itself and as trustee for the Company) that if, after Completion, it is discovered that the Company had on or before Completion given or undertaken any guarantees, indemnities or similar securities in respect of the obligations or liabilities of any person other than the Company and such guarantees, indemnities or similar securities were not finally and unconditionally released on or before Completion, the Vendor will fully indemnify between the Purchaser and the Company and keep each of them fully indemnified on demand against all claims, demands, actions, proceedings, damages, losses, costs, expenses or liabilities suffered or incurred John ▇▇▇▇▇ ▇▇▇ Ian ▇▇▇▇▇▇ ▇▇▇y executed by the Purchaser or the Company under or in connection with such guarantees, indemnities or similar obligationsparties.
Appears in 1 contract
Completion. 4.1 Subject to the Conditions Precedent being fulfilled (or, as the case may be, waived by the relevant Party(ies)), Completion shall take place at the offices office of the Purchaser's Solicitors immediately following the signing of this Agreement or at such other place or time as the Vendor and the Purchaser may agree.
4.2 At Completion the Vendor shall procure:
(a) the delivery to the Purchaser of duly completed and executed transfers of the Shares by the registered holders of the Shares in favour of the Purchaser or its nominees together with valid share certificates representing the Shares and all (if any) other documents required to give good title to the Shares;
(b) the delivery to the Purchaser of powers of attorney in the agreed form duly executed by the registered holders of the Shares;
(c) the delivery to the Purchaser of the Tax Covenant duly executed by the Vendor;
(d) the delivery to the Purchaser of the following, each duly executed and in form and substance satisfactory to the Purchaser:-
(i) a deed of release given in relation to the Company Guarantee;
(ii) a deed of release by each person holding or being entitled to any Encumbrance over the Shares or any of the assets of the Company;
(iii) a deed of waiver by the Vendor waiving any claim it or any of its subsidiaries or Associates may have against the Company;
(iv) deeds of waiver by each co-guarantor of the Company in respect of the Company Guarantee;
(e) the delivery to the Purchaser of the statutory books (duly written up to date) and the certificate(s) of incorporation of the Company;
(f) the delivery to the Purchaser of all current cheque books and deposit books relating to all bank accounts of the Company;
(g) the delivery to the Purchaser of all documents of title relating to the Properties;
(h) the delivery to the Purchaser of copies of the minutes of the meetings of the boards of directors of the Vendor in the agreed form, authorising (in each case) the entry into of the transaction the subject of this Agreement, approving this Agreement and any other agreements or documents to be executed pursuant to or in connection with it and appointing the relevant signatory to sign this Agreement and such other agreements and documents on their behalf certified by the company secretary of the Vendor together with (in each case) confirmation, in the agreed form, from the company secretary that the authority conferred remains valid at Completion;
(i) the passing of effective resolutions of the Directors resolving to register the transfers of the Shares subject only to stamping of the share transfers;
(j) (at the cost of the Vendor) the convening and holding of all such meetings, the passing of all such resolutions, the execution and delivery of all such documents and the taking of all other action to the extent reasonably necessary in order to complete the transfer of title to the Shares to the Purchaser free from all Encumbrances and to enable the Purchaser to exercise and receive all rights and benefits attaching to or arising from the Shares;
(k) with effect from Completion, the appointment as directors and secretary of the Company of such person or persons as the Purchaser shall have nominated and the resignation of each of the Directors (except ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇ at ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇, 15 Queen’s Road Central, Hong Kong at 10:00 am (or at such other place, time or date as the Parties may agree) on the Completion Date.
4.2 At or before Completion, the Issuer shall procure that a meeting of the Board is duly convened and ▇▇▇▇ held in accordance with the Constitution at which the execution of each Warrant Document to which the Issuer is a party and the performance by the Issuer of its obligations under such Warrant Documents is approved and/or ratified.
4.3 At Completion, all (but not some only, unless the Subscriber so agrees) of the following business shall be transacted:
(a) the Issuer shall issue the Warrants to the Subscriber (or its nominee) free and clear of all Encumbrances and register the Subscriber (or its nominee) in the Register;
(b) the Issuer shall deliver to the Subscriber, each in form and substance to the reasonable satisfaction of the Subscriber:
(i) a certified true copy of the Board resolutions approving and/or ratifying the matters below:
(A) approving the terms of, and the transactions contemplated by, the Warrant Documents to which the it is a party and resolving that the Issuer executes the Warrant Documents to which it is a party;
(B) authorising a specified person or persons to execute the Warrant Documents to which it is a party on its behalf;
(C) authorising a specified person or persons, on behalf of the Issuer, to sign, execute and/or despatch all documents and notices to be signed, executed and/or despatched by it under or in connection with any Warrant Documents to which the Issuer is a party; and
(D) a specimen of the signature of each person authorised by the resolution referred to in Clause 4.3(b)(i)(B) above;
(ii) a certified true copy of the Register, reflecting ownership of the Warrants by the Subscriber (or its nominee);
(iii) a copy of the approval from the HKSE for the listing of, and permission to deal in, all the Warrant Shares;
(iv) a closing certificate, dated as at the Completion Date and addressed to the Subscriber from the Issuer, executed by a Director (or another duly authorised signatory) and substantially in the form set out in Schedule 2, and attaching thereto as exhibits all supporting documents, showing such fulfilment; and
(v) the original executed copies of the following documents:
(A) the Warrant Instruments; and
(B) the Warrant Certificates.
4.4 Subject to the Issuer’s compliance with Clause 4.3, at Completion, the Subscriber shall pay or cause to be paid the Subscription Price, or, if Clause 12.1(b) applies, an amount equal to the Subscription Price less the Cost Reimbursement Amount deductible pursuant to Clause 12.1(b), in HKD or USD (based on a fixed exchange rate of HKD7.775 : USD1) (at the Subscriber’s election) by wire transfer of immediately available funds to the Issuer’s bank account (the “Closing Account”), provided that the details of the Closing Account shall be provided by the Issuer in the duly executed wire transfer instruction in the form and substance as set out in Appendix 4 (the “Wire Transfer Instruction”) to the Subscriber at least five Business Days prior to the Completion Date, and further provided that the duly executed Wire Transfer Instruction shall have been sent to the Subscriber on the Completion Date via email by the Issuer to ▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇@▇▇▇.▇▇▇ (copying ▇▇▇▇.▇▇▇@▇▇▇.▇▇▇) and or another email account as otherwise designated by the secretary of the Company by delivery of a letter under seal from each such Director and the secretary resigning from his offices and from any employment he may have with the Company with effect from Completion and acknowledging that he has no claim against the Company either actual or contingent in respect of any cause matter or thing (statutory or otherwise);
(l) the resignation of the auditors of the Company (without compensation for loss of office or any other claim save for proper professional fees for services rendered in respect of their duties as auditors prior to the completion of the 1997 Audit) with effect from completion of the 1997 Audit and the delivery of a statement by them that there are no circumstances connected with their ceasing to hold office which they consider should be brought to the attention of the members or creditors of the Company;
(m) revocation of all existing authorities to the bankers of the Company relating to bank accounts and the grant of authority to such persons as the Purchaser may nominate to operate the same;
(n) that all books, records and files of the Company are in its possession or under its control and where any such are not at the Properties that the Purchaser is given details of their whereabouts and any necessary authority to collect them;
(o) the delivery to the Purchaser of duly completed and executed transfers of all shares in the capital of Firstpoint Services Limited not registered in the name of the Company, the statutory books and common seal (if any) of Firstpoint Services Limited and certificates for all of the issued shares in Firstpoint Services LimitedSubscriber.
4.3 Immediately following fulfilment of all 4.5 If the matters referred to in Clause 4.2 the Purchaser shall:
(a) procure that that part of the Consideration payable in cash on Completion is paid by bankers draft to the Vendor's Solicitors (who are hereby irrevocably authorised to receive that consideration) on behalf of the Vendor;
(b) deliver to the Vendor's Solicitors a counterpart of the Tax Covenant duly executed by the Purchaser;
(c) if requested, and at the Vendor's cost, deliver to the Vendor's Solicitors a legal opinion in a form reasonably satisfactory to the Vendor as to the validity and enforceability of the guarantee contained within Clause 11 of this Agreement and if such opinion is that such guarantee is not valid and enforceable such amendments shall be made to the guarantee as render it valid and enforceable; and
(d) as agent for the Company, repay the Inter-Company Debt by bankers draft to the Vendor's Solicitors (who are hereby irrevocably authorised to receive that payment) on behalf of the Vendor and its subsidiaries and Associates. The delivery of a bankers draft to the Vendor's Solicitors shall be a full and sufficient discharge to the Purchaser for the monies payable on Completion and the Purchaser shall not be concerned to see to the application of any payment by the Purchaser under this Clause 4.3.
4.4 If all the provisions of Clause 4.2 are not complied with in full on Completion the Purchaser may:
(a) defer Completion to a date not more than 28 days after the date specified in Clause 4.1 in which event the provisions of this Clause 4.4 shall apply to Completion as so deferred; or
(b) proceed to Completion so far as practicable without prejudice to its rights under this Agreement or otherwise and so that any provision of Clause 4.2 which may not have been complied with at Completion shall at the sole discretion of the Purchaser be held over to such future date or dates as the Purchaser may in its sole discretion determine; or
(c) terminate this Agreement (save for Clauses 12, 13, 14 and 20, which shall remain in full force and effect) provided that such termination shall not affect the rights and obligations of the parties which have accrued prior to termination and shall not limit Issuer under Clause 4.3 or exclude any other rights or remedies if the obligations of the Purchaser in respect of any failure by the Vendor to comply with the requirements of Clause 4.2 on the due date.
4.5 The Vendor shall use all reasonable endeavours to procure compliance with the provisions of Clause 4.2 on any date set for Completion in accordance with this Agreement.
4.6 The Vendor undertakes to and covenants with the Purchaser (for itself and as trustee for the Company) that if, after Completion, it is discovered that the Company had on or before Completion given or undertaken any guarantees, indemnities or similar securities in respect of the obligations or liabilities of any person other than the Company and such guarantees, indemnities or similar securities were not finally and unconditionally released on or before Completion, the Vendor will fully indemnify the Purchaser and the Company and keep each of them fully indemnified on demand against all claims, demands, actions, proceedings, damages, losses, costs, expenses or liabilities suffered or incurred by the Purchaser or the Company Subscriber under or in connection with such guarantees, indemnities or similar obligations.Clause
Appears in 1 contract
Sources: Warrant Subscription Agreement
Completion. 4.1 Upon compliance with or fulfillment of the conditions set out in Clause 3.1, Completion for the First Tranche shall take place at the offices principal place of business of the Purchaser's Solicitors immediately following the signing of this Agreement Company or at such other place or time as the Vendor and parties hereto shall determine on the Purchaser may agree.
4.2 At First Tranche Completion Date at 4.00 p.m. when all (but not part only) of the Vendor following businesses shall procurebe transacted:
(a) the delivery Company shall deliver to the Purchaser of duly completed and executed transfers each of the Shares by the registered holders Subscribers a certified copy of the Shares in favour board resolution of the Purchaser or its nominees together with valid share certificates representing Company approving and authorising the Shares execution and all (if any) other documents required completion of this Agreement, the Instruments and the issue of the Convertible Bonds and the Certificates for the Convertible Bonds to give good title be delivered to each of the SharesSubscribers;
(b) the delivery to Company shall execute the Purchaser First Tranche Instrument and deliver a certified copy of powers of attorney in the agreed form duly executed by the registered holders First Tranche Instrument to each of the Shares;Subscribers together with a duly executed Certificate of the First Tranche; and
(c) the delivery to the Purchaser of the Tax Covenant duly executed by the Vendor;
(d) the delivery to the Purchaser of the following, each duly executed and in form and substance satisfactory to the Purchaser:-
(i) a deed of release given in relation Subscribers shall effect payment to the Company Guarantee;
(ii) a deed of release by each person holding or being entitled an amount equal to any Encumbrance over the Shares or any face value of the assets First Tranche of the Company;
(iii) a deed of waiver by the Vendor waiving any claim it or any of its subsidiaries or Associates may have against the Company;
(iv) deeds of waiver by each co-guarantor of the Company in respect of the Company Guarantee;
(e) the delivery to the Purchaser of the statutory books (duly written up to date) and the certificate(s) of incorporation of the Company;
(f) the delivery to the Purchaser of all current cheque books and deposit books relating to all bank accounts of the Company;
(g) the delivery to the Purchaser of all documents of title relating to the Properties;
(h) the delivery to the Purchaser of copies of the minutes of the meetings of the boards of directors of the Vendor Convertible Bonds in the agreed formproportion that they have subscribed for as set out in Schedule 3, authorising (in each case) the entry into of the transaction the subject of this Agreement, approving this Agreement and any other agreements or documents such payment to be executed pursuant to or made by way of a cheque drawn on a licensed bank in connection with it and appointing the relevant signatory to sign this Agreement and such other agreements and documents on their behalf certified by the company secretary of the Vendor together with (in each case) confirmation, in the agreed form, from the company secretary that the authority conferred remains valid at Completion;
(i) the passing of effective resolutions of the Directors resolving to register the transfers of the Shares subject only to stamping of the share transfers;
(j) (at the cost of the Vendor) the convening and holding of all such meetings, the passing of all such resolutions, the execution and delivery of all such documents and the taking of all other action to the extent reasonably necessary in order to complete the transfer of title to the Shares to the Purchaser free from all Encumbrances and to enable the Purchaser to exercise and receive all rights and benefits attaching to or arising from the Shares;
(k) with effect from Completion, the appointment as directors and secretary of the Company of such person or persons as the Purchaser shall have nominated and the resignation of each of the Directors (except ▇▇▇▇▇ Hong Kong/▇▇▇▇▇▇’▇ ▇▇▇▇▇▇ ▇▇▇▇order issued by a licensed bank in Hong Kong for such face value and made payable to the Company or such party as the Company may direct in writing.
4.2 Upon compliance with or fulfillment of the conditions set out in Clause 3.4, ▇▇▇▇▇▇ ▇▇▇▇▇ Completion of the Second Tranche shall take place at the principal place of business of the Company or such other place as the parties hereto shall determine on the Second Tranche Completion Date at 4:00 p.m. when all (but not part only) of the following businesses shall be transacted:
(a) the Company shall execute the Second Tranche Instrument and deliver a certified copy of the Second Tranche Instrument to the Subscribers together with a duly executed Certificate for the Second Tranche; and
(b) the Subscribers shall effect payment to the Company of an amount equal to the face value of the Second Tranche of the Convertible Bonds in the proportion that they have subscribed for as set out in Schedule 3, such payment to be made by way of a cheque drawn on a licensed bank in Hong Kong/▇▇▇▇▇▇▇’▇ order issued by a licensed bank in Hong Kong for such face value and ▇▇▇▇ made payable to the Company or such party as the Company may direct in writing.
4.3 Upon compliance with or fulfillment of the conditions set out in Clause 3.7, Completion of the Third Tranche shall take place at the principal place of business of the Company or such other place as the parties hereto shall determine on the Third Tranche Completion Date at 4:00 p.m. when all (but not part only) of the following businesses shall be transacted:
(a) the Company shall execute the Third Tranche Instrument and deliver a certified copy of the Third Tranche Instrument to the Subscribers together with a duly executed Certificate for the Second Tranche; and
(b) the Subscribers shall effect payment to the Company of an amount equal to the face value of the Second Tranche of the Convertible Bonds in the proportion that they have subscribed for as set out in Schedule 3, such payment to be made by way of a cheque drawn on a licensed bank in Hong Kong/▇▇▇▇▇) ▇’▇ order issued by a licensed bank in Hong Kong for such face value and the secretary of made payable to Company or such party as the Company by delivery of a letter under seal from each such Director and the secretary resigning from his offices and from any employment he may have with the Company with effect from Completion and acknowledging that he has no claim against the Company either actual or contingent direct in respect of any cause matter or thing (statutory or otherwise);
(l) the resignation of the auditors of the Company (without compensation for loss of office or any other claim save for proper professional fees for services rendered in respect of their duties as auditors prior to the completion of the 1997 Audit) with effect from completion of the 1997 Audit and the delivery of a statement by them that there are no circumstances connected with their ceasing to hold office which they consider should be brought to the attention of the members or creditors of the Company;
(m) revocation of all existing authorities to the bankers of the Company relating to bank accounts and the grant of authority to such persons as the Purchaser may nominate to operate the same;
(n) that all books, records and files of the Company are in its possession or under its control and where any such are not at the Properties that the Purchaser is given details of their whereabouts and any necessary authority to collect them;
(o) the delivery to the Purchaser of duly completed and executed transfers of all shares in the capital of Firstpoint Services Limited not registered in the name of the Company, the statutory books and common seal (if any) of Firstpoint Services Limited and certificates for all of the issued shares in Firstpoint Services Limited.
4.3 Immediately following fulfilment of all the matters referred to in Clause 4.2 the Purchaser shall:
(a) procure that that part of the Consideration payable in cash on Completion is paid by bankers draft to the Vendor's Solicitors (who are hereby irrevocably authorised to receive that consideration) on behalf of the Vendor;
(b) deliver to the Vendor's Solicitors a counterpart of the Tax Covenant duly executed by the Purchaser;
(c) if requested, and at the Vendor's cost, deliver to the Vendor's Solicitors a legal opinion in a form reasonably satisfactory to the Vendor as to the validity and enforceability of the guarantee contained within Clause 11 of this Agreement and if such opinion is that such guarantee is not valid and enforceable such amendments shall be made to the guarantee as render it valid and enforceable; and
(d) as agent for the Company, repay the Inter-Company Debt by bankers draft to the Vendor's Solicitors (who are hereby irrevocably authorised to receive that payment) on behalf of the Vendor and its subsidiaries and Associates. The delivery of a bankers draft to the Vendor's Solicitors shall be a full and sufficient discharge to the Purchaser for the monies payable on Completion and the Purchaser shall not be concerned to see to the application of any payment by the Purchaser under this Clause 4.3writing.
4.4 If No party shall be obliged to complete the subscription for and the issue of each of the First Tranche, the Second Tranche and the Third Tranche or perform any obligations hereunder unless all the provisions parties hereto comply fully with their respective obligations under Clause 4.1 or 4.2 or 4.3 (as the case may be).
4.5 If the Company on the one hand or the Subscribers on the other hand shall be unable to comply with any of their respective obligations under Clause 4.1 or 4.2 are or 4.3 (as the case may be) on or before the date fixed for Completion, the party not complied with in full on Completion the Purchaser default may:
(a) defer Completion to a date not more than 28 days 10 Business Days after the said date specified in Clause 4.1 in which event (and so that the provisions of this Clause 4.4 4 shall apply to Completion as so deferred); or
(b) proceed to Completion so far as practicable without prejudice to its rights under this Agreement or otherwise and so that any provision of Clause 4.2 which may not have been complied with at Completion shall at the sole discretion of the Purchaser be held over to such future date or dates as the Purchaser may in its sole discretion determinepracticable; or
(c) terminate rescind this Agreement, without prejudice, in each case, to that party's rights (whether under this Agreement (save for Clauses 12, 13, 14 and 20, which shall remain in full force and effectgenerally or under this Clause) provided to the extent that such termination the other party shall not affect the rights and have complied with its obligations of the parties which have accrued prior to termination and shall not limit or exclude any other rights or remedies of the Purchaser in respect of any failure by the Vendor to comply with the requirements of Clause 4.2 on the due datethereunder.
4.5 The Vendor shall use all reasonable endeavours to procure compliance with the provisions of Clause 4.2 on any date set for Completion in accordance with this Agreement.
4.6 The Vendor undertakes to and covenants with the Purchaser (for itself and as trustee for the Company) that if, after Completion, it is discovered that the Company had on or before Completion given or undertaken any guarantees, indemnities or similar securities in respect of the obligations or liabilities of any person other than the Company and such guarantees, indemnities or similar securities were not finally and unconditionally released on or before Completion, the Vendor will fully indemnify the Purchaser and the Company and keep each of them fully indemnified on demand against all claims, demands, actions, proceedings, damages, losses, costs, expenses or liabilities suffered or incurred by the Purchaser or the Company under or in connection with such guarantees, indemnities or similar obligations.
Appears in 1 contract
Completion. 4.1 30.1 Completion shall take place at the offices of the Purchaser's Solicitors immediately following Seller on the signing of this Agreement Completion Date or at such other place or time time(s) and place(s) as the Vendor and the Purchaser Parties may agree.
4.2 30.2 At Completion Completion, the Vendor shall procurePurchaser shall:
30.2.1 Deliver to the Seller a copy of the board resolution of the board of directors of the Purchaser authorizing the execution of this Agreement (athe copy of the board resolution being certified as a true copy of the original by a director of the Purchaser) together with a true copy of any relevant powers of attorney (if any) pursuant to which this Agreement is to be executed.
30.2.2 Make payment of the delivery Debt Repayment Amount as per Clause 5 above.
30.3 At Completion, the Seller shall:
30.3.1 Deliver or cause to be delivered to the Purchaser of duly completed and executed transfers all of the Shares Business Assets including Business Plant and Machinery which are capable of transfer by delivery, with the intent that title in such Business Assets including the Business Plant and Machinery shall pass by such delivery by making the same available for collection at the place in which they are situate or such other place which may be mutually agreed upon by the registered holders Parties;
30.3.2 Deliver or cause to be delivered to the Purchaser (or shall certify to the Purchaser an address or addresses for collection of originals of) all such records, documents, lists, catalogues, literature and materials as are included in the Business Assets and the Business Plant and Machinery by making the same available for collection at the place in which they are situate or such other place which may be mutually agreed upon by the Parties;
30.3.3 Sign the assignment deeds in respect of the Shares Business Properties in favour of the Purchaser or its nominees together with valid share certificates representing upon the Shares and all (Purchaser paying the stamp duty thereon, if any) other documents required .
30.3.4 Deliver or cause to give good title to the Shares;
(b) the delivery be delivered to the Purchaser all original deeds and documents of powers of attorney in the agreed form duly executed by the registered holders of the Shares;
title (c) the delivery without prejudice to the Purchaser other provisions of the Tax Covenant duly executed by the Vendor;
(dClause 5.1.2) the delivery relating to the Purchaser of the following, each duly executed and in form and substance satisfactory to the Purchaser:-
(i) a deed of release given in relation to the Company Guarantee;
(ii) a deed of release by each person holding or being entitled to any Encumbrance over the Shares or any of the assets of Business Assets including the CompanyBusiness Plant and Machinery and the Business Properties in its possession;
(iii) a 30.3.5 Sign the novation deed and procure the signature of waiver by the Vendor waiving any claim it or any of its subsidiaries or Associates may have against the Company;
(iv) deeds of waiver by each co-guarantor of the Company in respect of the Company Guarantee;
(e) the delivery to the Purchaser of the statutory books (duly written up to date) and the certificate(s) of incorporation of the Company;
(f) the delivery to the Purchaser of all current cheque books and deposit books relating to all bank accounts of the Company;
(g) the delivery to the Purchaser of all documents of title relating to the Properties;
(h) the delivery to the Purchaser of copies of the minutes of the meetings of the boards of directors of the Vendor in the agreed form, authorising (in each case) the entry into of the transaction the subject of this Agreement, approving this Agreement and any other agreements or documents to be executed pursuant to or in connection with it and appointing the relevant signatory to sign this Agreement and such other agreements and documents on their behalf certified by the company secretary of the Vendor together with (in each case) confirmation, in the agreed form, from the company secretary that the authority conferred remains valid at Completion;
(i) the passing of effective resolutions of the Directors resolving to register the transfers of the Shares subject only to stamping of the share transfers;
(j) (at the cost of the Vendor) the convening and holding of all such meetings, the passing of all such resolutions, the execution and delivery of all such documents and the taking of all other action to the extent reasonably necessary in order to complete the transfer of title to the Shares to the Purchaser free from all Encumbrances and to enable the Purchaser to exercise and receive all rights and benefits attaching to or arising from the Shares;
(k) with effect from Completion, the appointment as directors and secretary of the Company of such person or persons as the Purchaser shall have nominated and the resignation of each of the Directors (except ▇▇. ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Security Services in respect of the contract dated March 27, 2006 between the Seller and ▇▇▇▇ . ▇▇▇▇▇) ▇▇▇▇ Security Services in favour of the Purchaser.
30.3.6 Make reasonable efforts to procure the written confirmation of the Employees confirming that they shall continue their employment with the Purchaser on the same terms and conditions as they are currently employed with the Employees and shall provide the originals of the same to the Purchaser.
30.3.7 Deliver a copy of an extract from the minutes of a meeting of the board of directors of the Seller authorising the execution by the Seller of this Agreement (those copy minutes being certified as a true copy of the original by the secretary of the Company by delivery of Seller) together with a letter under seal from each such Director and the secretary resigning from his offices and from any employment he may have with the Company with effect from Completion and acknowledging that he has no claim against the Company either actual or contingent in respect true copy of any cause matter or thing (statutory or otherwise);
(l) the resignation relevant powers of the auditors of the Company (without compensation for loss of office or any other claim save for proper professional fees for services rendered in respect of their duties as auditors prior attorney pursuant to the completion of the 1997 Audit) with effect from completion of the 1997 Audit and the delivery of a statement by them that there are no circumstances connected with their ceasing to hold office which they consider should be brought to the attention of the members or creditors of the Company;
(m) revocation of all existing authorities to the bankers of the Company relating to bank accounts and the grant of authority to such persons as the Purchaser may nominate to operate the same;
(n) that all books, records and files of the Company are in its possession or under its control and where any such are not at the Properties that the Purchaser is given details of their whereabouts and any necessary authority to collect them;
(o) the delivery to the Purchaser of duly completed and executed transfers of all shares in the capital of Firstpoint Services Limited not registered in the name of the Company, the statutory books and common seal (if any) of Firstpoint Services Limited and certificates for all of the issued shares in Firstpoint Services Limited.
4.3 Immediately following fulfilment of all the matters referred to in Clause 4.2 the Purchaser shall:
(a) procure that that part of the Consideration payable in cash on Completion is paid by bankers draft to the Vendor's Solicitors (who are hereby irrevocably authorised to receive that consideration) on behalf of the Vendor;
(b) deliver to the Vendor's Solicitors a counterpart of the Tax Covenant duly executed by the Purchaser;
(c) if requested, and at the Vendor's cost, deliver to the Vendor's Solicitors a legal opinion in a form reasonably satisfactory to the Vendor as to the validity and enforceability of the guarantee contained within Clause 11 of this Agreement and if such opinion is that such guarantee is not valid and enforceable such amendments shall to be made to the guarantee as render it valid and enforceable; and
(d) as agent for the Company, repay the Inter-Company Debt by bankers draft to the Vendor's Solicitors (who are hereby irrevocably authorised to receive that payment) on behalf of the Vendor and its subsidiaries and Associates. The delivery of a bankers draft to the Vendor's Solicitors shall be a full and sufficient discharge to the Purchaser for the monies payable on Completion and the Purchaser shall not be concerned to see to the application of any payment by the Purchaser under this Clause 4.3.
4.4 If all the provisions of Clause 4.2 are not complied with in full on Completion the Purchaser may:
(a) defer Completion to a date not more than 28 days after the date specified in Clause 4.1 in which event the provisions of this Clause 4.4 shall apply to Completion as so deferred; or
(b) proceed to Completion so far as practicable without prejudice to its rights under this Agreement or otherwise and so that any provision of Clause 4.2 which may not have been complied with at Completion shall at the sole discretion of the Purchaser be held over to such future date or dates as the Purchaser may in its sole discretion determine; or
(c) terminate this Agreement (save for Clauses 12, 13, 14 and 20, which shall remain in full force and effect) provided that such termination shall not affect the rights and obligations of the parties which have accrued prior to termination and shall not limit or exclude any other rights or remedies of the Purchaser in respect of any failure by the Vendor to comply with the requirements of Clause 4.2 on the due date.
4.5 The Vendor shall use all reasonable endeavours to procure compliance with the provisions of Clause 4.2 on any date set for Completion in accordance with this Agreement.
4.6 The Vendor undertakes to and covenants with the Purchaser (for itself and as trustee for the Company) that if, after Completion, it is discovered that the Company had on or before Completion given or undertaken any guarantees, indemnities or similar securities in respect of the obligations or liabilities of any person other than the Company and such guarantees, indemnities or similar securities were not finally and unconditionally released on or before Completion, the Vendor will fully indemnify the Purchaser and the Company and keep each of them fully indemnified on demand against all claims, demands, actions, proceedings, damages, losses, costs, expenses or liabilities suffered or incurred by the Purchaser or the Company under or in connection with such guarantees, indemnities or similar obligations.executed;
Appears in 1 contract
Sources: Business Transfer Agreement (Albany Molecular Research Inc)
Completion. 4.1 Completion 5.1 The sale and purchase of the Share and the Harvest Payables shall take place be completed at the offices of Freshfields Bruckhaus Deringer, Moscow, on the Purchaser's Solicitors immediately third Business Day following the signing fulfilment (▇▇ ▇▇▇▇er) of this Agreement all the Conditions or at on such other place or time day as may be agreed between the Vendor and the Purchaser may agree(but, in any event, within five Business Days after such fulfilment or waiver). The events referred to in the following provisions of this clause 5 shall take place on Completion.
4.2 At Completion 5.2 The Vendor and the Vendor Purchaser shall procureexecute the notification of transfer of ownership of the Share in the form attached as Schedule 12 and shall procure that:
(a) the delivery such notification is delivered to the Purchaser of duly completed and executed transfers Company at its principal office located in the Gubkinsky Industrial Area, Purovsky District, Yamalo-Nenets Autonomous Region, the Russian Federation, in accordance with the provisions of the Shares by the registered holders Foundation Documents and Article 21(6) of the Shares in favour LLC Law by one representative of the Purchaser or its nominees together with valid share certificates representing the Shares and all each of Freshfields Bruckhaus Deringer (if any) other documents required to give good title legal counsel to the Shares;Purchaser) and Baker & McKenzie (legal counsel to the Vendor) accompanied b▇ ▇▇▇ No▇▇▇▇; ▇▇d
(b) such representatives and the Notary prepare a duly notarised statement recording the time, place and manner of such delivery and the name(s) and title(s) of the person(s), if any, to the Purchaser whom such delivery was made.
5.3 Upon receipt of powers of attorney in the agreed form duly executed verbal confirmation by the registered holders of the Shares;
(c) the delivery to the Purchaser of the Tax Covenant duly executed by the Vendor;
(d) the delivery to the Purchaser of the following, each duly executed and in form and substance satisfactory to the Purchaser:-
(i) a deed of release given in relation to the Company Guarantee;
(ii) a deed of release by each person holding or being entitled to any Encumbrance over the Shares or any of the assets of the Company;
(iii) a deed of waiver by the Vendor waiving any claim it or any of its subsidiaries or Associates may have against the Company;
(iv) deeds of waiver by each co-guarantor of the Company in respect of the Company Guarantee;
(e) the delivery to the Purchaser of the statutory books (duly written up to date) and the certificate(s) of incorporation of the Company;
(f) the delivery to the Purchaser of all current cheque books and deposit books relating to all bank accounts of the Company;
(g) the delivery to the Purchaser of all documents of title relating to the Properties;
(h) the delivery to the Purchaser of copies of the minutes of the meetings of the boards of directors of the Vendor in the agreed form, authorising (in each case) the entry into of the transaction the subject of this Agreement, approving this Agreement and any other agreements or documents to be executed pursuant to or in connection with it and appointing the relevant signatory to sign this Agreement and such other agreements and documents on their behalf certified by the company secretary of the Vendor together with (in each case) confirmation, in the agreed form, from the company secretary that the authority conferred remains valid at Completion;
(i) the passing of effective resolutions of the Directors resolving to register the transfers of the Shares subject only to stamping of the share transfers;
(j) (at the cost of the Vendor) the convening and holding of all such meetings, the passing of all such resolutions, the execution and delivery of all such documents and the taking of all other action to the extent reasonably necessary in order to complete the transfer of title to the Shares to the Purchaser free from all Encumbrances and to enable the Purchaser to exercise and receive all rights and benefits attaching to or arising from the Shares;
(k) with effect from Completion, the appointment as directors and secretary of the Company of such person or persons as the Purchaser shall have nominated and the resignation Moscow office of each of the Directors (except Freshfields Bruckhaus Deringer and Baker & McKenzie that their respective representatives a▇▇ ▇▇▇ ▇otary ▇▇▇▇ co▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇the actions specified in clauses 5.2(a) and 5.2(b):
(a) the Vendor shall deliver to the Purchaser a deed of assignment in respect of the Harvest Payables in the form attached as Schedule 13; and
(b) the Purchaser and the Vendor shall, ▇▇▇▇▇in satisfaction of the Purchaser's obligations under clauses 2.2 and 2.4, execute an irrevocable escrow release instruction in the form attached as Schedule 14 and cause the Escrow Agent to transfer the Escrow Amount (for same day value) by wire transfer of immediately available funds from the Escrow Account to JPMorgan Chase Bank, Houston, TX, ABA Routing #: [____], SWIFT: [_______], FBO: Harvest Natural Resources, Inc., Account #: [_____], which transfer, together with the simultaneous crediting of the Earnest Money Deposit towards the total price payable for th▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ and ▇▇▇▇ ▇▇▇▇▇) and the secretary Harvest Payables as agreed by the Parties, shall amount to full payment of such total price. The Parties acknowledge and agree, for the Company by delivery avoidance of a letter under seal from each such Director and the secretary resigning from his offices and from any employment he may have with the Company with effect from Completion and acknowledging that he has no claim against the Company either actual or contingent in respect of any cause matter or thing (statutory or otherwise);
(l) the resignation of the auditors of the Company (without compensation for loss of office or any other claim save for proper professional fees for services rendered in respect of their duties as auditors prior to the completion of the 1997 Audit) with effect from completion of the 1997 Audit and the delivery of a statement by them that there are no circumstances connected with their ceasing to hold office which they consider should be brought to the attention of the members or creditors of the Company;
(m) revocation of all existing authorities to the bankers of the Company relating to bank accounts and the grant of authority to such persons as the Purchaser may nominate to operate the same;
(n) that all booksdoubt, records and files of the Company are in its possession or under its control and where any such are not at the Properties that the Purchaser is given details of their whereabouts shall be entitled to all interest and any necessary authority to collect them;
(o) other income due and payable on the delivery to the Purchaser of duly completed and executed transfers of all shares funds held in the capital of Firstpoint Services Limited Escrow Account whether or not registered in the name sale and purchase of the Company, Share and the statutory books and common seal (if any) of Firstpoint Services Limited and certificates for all Harvest Payables is completed as contemplated by this Agreement. Each of the issued shares in Firstpoint Services Limited.
4.3 Immediately following fulfilment Parties hereby irrevocably instructs its respective legal counsel to execute the irrevocable escrow release instruction upon receipt of all the matters verbal confirmation as referred to in Clause 4.2 this clause 5.3.
5.4 If the Vendor fails, is unable or declines to perform its material obligations required to be performed by it pursuant to clauses 5.2 and 5.3 by the last date on which Completion is required to occur, the Purchaser shallshall not be obliged to complete the sale and purchase of the Share and the Harvest Payables and may, in its absolute discretion, by written notice to the Vendor:
(a) procure that that part terminate this Agreement (other than clauses 1, 2.3, 2.4 and 11 to 22 (apart from clauses 13 and 18)), in which case neither Party shall have any claim of any nature whatsoever against the other Party under this Agreement (save in respect of any rights and liabilities of the Consideration payable in cash on Completion is paid by bankers draft Parties which have accrued prior to the Vendor's Solicitors (who are hereby irrevocably authorised to receive that consideration) on behalf of the Vendor;termination); or
(b) deliver elect to complete this Agreement on that date, to the Vendor's Solicitors extent that the Vendor is ready, able and willing to do so, and specify a counterpart of later date on which the Tax Covenant duly executed by the Purchaser;Vendor shall be obliged to complete its outstanding obligations; or
(c) if requested, and at elect to defer the Vendor's cost, deliver to the Vendor's Solicitors a legal opinion in a form reasonably satisfactory to the Vendor as to the validity and enforceability of the guarantee contained within Clause 11 completion of this Agreement and if such opinion is that such guarantee is not valid and enforceable such amendments shall be made to the guarantee as render it valid and enforceable; and
(d) as agent for the Company, repay the Inter-Company Debt by bankers draft to the Vendor's Solicitors (who are hereby irrevocably authorised to receive that payment) on behalf of the Vendor and its subsidiaries and Associates. The delivery of a bankers draft to the Vendor's Solicitors shall be a full and sufficient discharge to the Purchaser for the monies payable on Completion and the Purchaser shall not be concerned to see to the application of any payment by the Purchaser under this Clause 4.3.
4.4 If all the provisions of Clause 4.2 are not complied with in full on Completion the Purchaser may:
(a) defer Completion to a date not more than 28 days after the twenty (20) Business Days to such other date specified as it may specify in Clause 4.1 such notice, in which event the provisions of this Clause 4.4 clause 5.4 shall apply apply, mutatis mutandis, if the Vendor fails or is unable to Completion perform any such obligations on such other date.
5.5 If, due to any reason other than as so deferred; or
contemplated by clause 5.4 or clause 10.1(a), (b) proceed or (c), the Purchaser fails, is unable or declines to perform its material obligations required to be performed by it pursuant to clause 5.2 by the last date on which Completion so far as practicable without prejudice is required to its rights under this Agreement or otherwise occur, the Vendor shall not be obliged to complete the sale and so that any provision of Clause 4.2 which may not have been complied with at Completion shall at the sole discretion purchase of the Purchaser be held over Share and the Harvest Payables and may, in its absolute discretion, by written notice to such future date or dates as the Purchaser may in its sole discretion determine; or
(c) terminate this Agreement (other than clauses 1, 2.3, 2.4 and 11 to 22 (apart from clauses 13 and 18)), in which case the Vendor shall be entitled to receive payment of the sum of USD 5,500,000 from the Escrow Amount as liquidated damages promptly upon such termination. Subject to the preceding sentence, in the event this Agreement is terminated pursuant to this clause 5.5, neither Party shall have any claim of any nature whatsoever against the other Party under this Agreement (save for Clauses 12, 13, 14 and 20, which shall remain in full force and effect) provided that such termination shall not affect the respect of any rights and obligations liabilities of the parties Parties which have accrued prior to termination termination). The Parties acknowledge and shall not limit or exclude any other rights or remedies agree that the liquidated damages payable to the Vendor pursuant to this clause 5.5 represent a genuine pre-estimate of the Purchaser in respect loss which would be suffered by the Vendor, including opportunity costs, arising out of any the failure by the Vendor Purchaser to comply proceed with the requirements of Clause 4.2 on the due dateCompletion.
4.5 The Vendor shall use all reasonable endeavours to procure compliance with the provisions of Clause 4.2 on any date set for Completion in accordance with this Agreement.
4.6 The Vendor undertakes to and covenants with the Purchaser (for itself and as trustee for the Company) that if, after Completion, it is discovered that the Company had on or before Completion given or undertaken any guarantees, indemnities or similar securities in respect of the obligations or liabilities of any person other than the Company and such guarantees, indemnities or similar securities were not finally and unconditionally released on or before Completion, the Vendor will fully indemnify the Purchaser and the Company and keep each of them fully indemnified on demand against all claims, demands, actions, proceedings, damages, losses, costs, expenses or liabilities suffered or incurred by the Purchaser or the Company under or in connection with such guarantees, indemnities or similar obligations.
Appears in 1 contract
Completion. 4.1 Completion shall will take place at on the Completion Date at the offices of the Purchaser's Solicitors immediately following Company (or another time and place agreed by the signing of this Agreement or at such other place or time as Purchaser and the Vendor in writing). Completion may be effected by the parties providing documents electronically and confirming bank transfers have been validly initiated, with originals and bank confirmation to follow the Purchaser may agreenext Business Day.
4.2 At Completion The Parties enter into this Agreement on the assumption that there will be no change to the director/s, secretary and public officers of the Company. If the Purchaser wishes to change the director/s, secretary and/or public officers of the Company, the Purchaser shall provide written notice to the Vendor shall procurebefore Completion setting out details of:
(a) the delivery to persons who will be appointed as the Purchaser of duly completed new director/s, secretary and executed transfers public officers of the Shares by the registered holders of the Shares in favour of the Purchaser or its nominees Company from Completion together with valid share certificates representing the Shares and all (if any) other documents required original signed consents to give good title to the Sharesact of such persons;
(b) the delivery persons who will be required to the Purchaser of powers of attorney in the agreed form duly executed by the registered holders of the Shares;
(c) the delivery to the Purchaser of the Tax Covenant duly executed by the Vendor;
(d) the delivery to the Purchaser of the followingresign as director/s, each duly executed secretary and in form and substance satisfactory to the Purchaser:-
(i) a deed of release given in relation to the Company Guarantee;
(ii) a deed of release by each person holding or being entitled to any Encumbrance over the Shares or any of the assets public officers of the Company;
(iiic) a deed if applicable, the proposed new registered office from Completion; and
(d) the proposed changes from Completion to the signatories of waiver any bank account maintained by the Company, and provide specimen signatures of new signatories.
4.3 On or before the Completion Date:
(a) the Vendor shall deliver or cause to be delivered to the Purchaser:
(i) all share certificates in respect of the Vendor’s Sale Shares (or evidence of the loss or destruction of the share certificates to the reasonable satisfaction of the Purchaser);
(ii) instruments of transfer for all of the Vendor’s Sale Shares duly completed and executed by the Vendor waiving naming the Purchaser as transferee, substantially in the form annexed to this Agreement as Annexure A;
(iii) if applicable, duly stamped declarations of trust from any claim it person for whom the Vendor holds its Sale Shares on trust, being declarations evidencing that trust and the authority of the Vendor to deliver its Sale Shares at Completion;
(iv) any other document which the Purchaser reasonably requires to obtain good title to the Vendor’s Sale Shares and to enable the transfer of the Vendor’s Sale Shares to the Purchaser including any power of attorney under which any document delivered under this Agreement has been signed; and
(v) the Certificate of Compliance.
(b) the Vendor shall deliver or cause to be delivered to the Purchaser:
(i) the minute books and other records of meetings or resolutions of members and directors of the Company or of any trust of its subsidiaries or Associates may have against which the Company is trustee;
(ii) all registers of the Company (including the register of members, register of options, register of charges, registers of officeholders) all in proper order and condition and fully entered up to the Completion Date;
(iii) all financial records, cheque books, financial and accounting books and records, copies of taxation returns and assessments, mortgages, leases, agreements, insurance policies, title documents, licences, indicia of title, certificates and all other records, papers, books and documents of the Company;
(iv) deeds confirmation that all electronic banking access, other than EFTPOS for receipts and refunds, has been suspended subject to and effective from Completion;
(v) a duly completed authority for the alteration of waiver by the signatories of each co-guarantor bank account of the Company in respect of the Company Guaranteemanner required by the Company’s bankers;
(evi) all passwords, PINS (personal or merchant identification numbers), access codes, combinations, keys or similar items or information necessary for the operation of any electronic transactions, programs, computers, alarms, software, access points or otherwise being necessary for the operation of the Company’s business;
(vii) all permits, licences and other documents issued to the Company under any legislation or ordinance relating to its business;
(viii) the delivery written resignations by such persons as the Purchaser notifies to the Purchaser of the statutory books (duly written up Vendor under clause 4.2(b) who are to date) resign as directors, secretaries and the certificate(s) of incorporation public officers of the Company;
(fc) the delivery Vendor shall ensure that duly convened meetings of the board of the Company are held and that at those meetings (as applicable) the board approves with effect from Completion:
(i) the transfer and the registration (subject to payment of any stamp duty) of the transfer of the Sale Shares, the issue of a new share certificate for the Sale Shares in the name of the Purchaser or its nominee and the cancellation of the existing share certificates in respect of the Sale Shares (if share certificates have been issued);
(ii) the appointment of such persons notified by the Purchaser to the Vendor under clause 4.2(a) as additional directors, secretaries and public officers of the Company, subject to the receipt of duly signed consents to act of such persons;
(iii) the resignation of such persons as the Purchaser of all current cheque books notifies to the Vendor under clause 4.2(b) resigning as directors, secretaries and deposit books relating to all bank accounts public officers of the Company;
(giv) the delivery registered office of the Company being changed to the Purchaser of all documents of title relating to the Properties;
(h) the delivery to new address that the Purchaser of copies of the minutes of the meetings of the boards of directors of notifies to the Vendor in the agreed form, authorising accordance with clause 4.2(c); and
(in each casev) the entry into signatories of any bank account maintained by the transaction Company being changed to those notified by the subject of Purchaser under clause 4.2(d). The Vendor and the Company shall do all other acts and execute all other documents that may be required to give effect to the transactions contemplated by this Agreement.
4.4 At Completion the Purchaser must, approving subject to clause 4.8:
(a) pay to the Vendor the Purchase Price set out against the Vendor’s name in Part A of Schedule One; and
(b) do and execute all other acts and documents that this Agreement and any other agreements or documents to be executed pursuant to or in connection with it and appointing the relevant signatory to sign this Agreement and such other agreements and documents on their behalf certified by the company secretary of the Vendor together with (in each case) confirmation, in the agreed form, from the company secretary that the authority conferred remains valid at Completion;
(i) the passing of effective resolutions of the Directors resolving to register the transfers of the Shares subject only to stamping of the share transfers;
(j) (at the cost of the Vendor) the convening and holding of all such meetings, the passing of all such resolutions, the execution and delivery of all such documents and the taking of all other action to the extent reasonably necessary in order to complete the transfer of title to the Shares to the Purchaser free from all Encumbrances and to enable requires the Purchaser to exercise and receive all rights and benefits attaching to do or arising from the Shares;execute at Completion.
(k) with effect from Completion, the appointment as directors and secretary of the Company of such person or persons as the Purchaser shall have nominated and the resignation of each of the Directors (except ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ and ▇▇▇▇ ▇▇▇▇▇) and the secretary of the Company by delivery of a letter under seal from each such Director and the secretary resigning from his offices and from any employment he may have with the Company with effect from 4.5 After Completion and acknowledging that he has no claim against until the Company either actual or contingent in respect of any cause matter or thing (statutory or otherwise);
(l) the resignation of the auditors of the Company (without compensation for loss of office or any other claim save for proper professional fees for services rendered in respect of their duties as auditors prior to the completion of the 1997 Audit) with effect from completion of the 1997 Audit and the delivery of a statement by them that there Sale Shares are no circumstances connected with their ceasing to hold office which they consider should be brought to the attention of the members or creditors of the Company;
(m) revocation of all existing authorities to the bankers of the Company relating to bank accounts and the grant of authority to such persons as the Purchaser may nominate to operate the same;
(n) that all books, records and files of the Company are in its possession or under its control and where any such are not at the Properties that the Purchaser is given details of their whereabouts and any necessary authority to collect them;
(o) the delivery to the Purchaser of duly completed and executed transfers of all shares in the capital of Firstpoint Services Limited not registered in the name of the CompanyPurchaser, the statutory books and common seal (if any) of Firstpoint Services Limited and certificates for Vendor must take all action as registered holders of the issued shares Sale Shares as the Purchaser may lawfully require from time to time by notice and shall not take any action in Firstpoint Services Limitedrespect of the Sale Shares unless required or approved by the Purchaser.
4.3 Immediately following fulfilment 4.6 On and from Completion, the Vendor shall not (unless in the capacity of all employees or board members of the matters referred to in Clause 4.2 Company or if otherwise authorised by the Purchaser shallCompany with the consent of the Purchaser), and will procure that each of its Associated Persons does not:
(a) procure that that part of represent itself as being connected with or affiliated to or associated with the Consideration payable in cash on Completion is paid by bankers draft to the Vendor's Solicitors (who are hereby irrevocably authorised to receive that consideration) on behalf of the Vendor;Company; and
(b) deliver disclose or use any Confidential Information except where as permitted by clause 9.
4.7 Title to and risk in the Sale Shares and control of the Company transfer to the Vendor's Solicitors a counterpart Purchaser at Completion.
4.8 The Purchaser is not required to complete the purchase of the Tax Covenant duly executed by Sale Shares from the Purchaser;
(c) if requestedVendor unless all Warranties are true as at the Completion Date, the Vendor is not in breach of this Agreement, the Company is not in breach of this Agreement, and at the Vendor's cost, deliver to the Vendor's Solicitors a legal opinion in a form reasonably satisfactory to the Vendor as to performs their obligations under this clause 4, however the validity Purchaser may do so and enforceability of the guarantee contained within Clause 11 reserve its rights against any party who is in breach of this Agreement or where the Vendor has not performed its obligations under this clause 4 (and if such opinion is that such guarantee is the Purchaser’s rights will not valid and enforceable such amendments shall be made to the guarantee as render it valid and enforceable; and
merge in Completion). The Purchaser may (dat its absolute discretion) as agent for the Company, repay the Inter-Company Debt by bankers draft to the Vendor's Solicitors (who are hereby irrevocably authorised to receive that payment) on behalf grant further time or any indulgence in favour of the Vendor and its subsidiaries and Associates. The delivery of a bankers draft without being obliged to the Vendor's Solicitors shall be a full and sufficient discharge to the Purchaser for the monies payable on Completion and the Purchaser shall not be concerned to see to the application do so in favour of any payment by the Purchaser under this Clause 4.3.
4.4 If all the provisions of Clause 4.2 are not complied with in full on Completion the Purchaser may:
(a) defer Completion to a date not more than 28 days after the date specified in Clause 4.1 in which event the provisions of this Clause 4.4 shall apply to Completion as so deferred; or
(b) proceed to Completion so far as practicable other party and without prejudice to affecting its rights under this Agreement or otherwise and so that any provision of Clause 4.2 which may not have been complied with at Completion shall at the sole discretion of the Purchaser be held over to such future date or dates as the Purchaser may in its sole discretion determine; or
(c) terminate this Agreement (save for Clauses 12, 13, 14 and 20, which shall remain in full force and effect) provided that such termination shall not affect the rights and obligations of the parties which have accrued prior to termination and shall not limit or exclude against any other rights or remedies of the Purchaser in respect of any failure by the Vendor to comply with the requirements of Clause 4.2 on the due dateparty.
4.5 The Vendor shall use all reasonable endeavours to procure compliance with the provisions of Clause 4.2 on any date set for Completion in accordance with this Agreement.
4.6 The Vendor undertakes to and covenants with the Purchaser (for itself and as trustee for the Company) that if, after Completion, it is discovered that the Company had on or before Completion given or undertaken any guarantees, indemnities or similar securities in respect of the obligations or liabilities of any person other than the Company and such guarantees, indemnities or similar securities were not finally and unconditionally released on or before Completion, the Vendor will fully indemnify the Purchaser and the Company and keep each of them fully indemnified on demand against all claims, demands, actions, proceedings, damages, losses, costs, expenses or liabilities suffered or incurred by the Purchaser or the Company under or in connection with such guarantees, indemnities or similar obligations.
Appears in 1 contract
Sources: Sale of Shares Agreement (Snow Lake Resources Ltd.)
Completion. 4.1 5.1 Completion shall take place at the offices of Unicom on the Purchaser's Solicitors immediately following the signing of this Agreement or Completion Date at such other place or time as the Vendor and the Purchaser Parties may agree.
4.2 5.2 At Completion the Vendor shall procureCompletion, SKT shall:
(a) deliver or procure to be delivered to Unicom:
(i) a copy (certified as a true copy by a director or the delivery to the Purchaser company secretary of duly completed and executed transfers SKT) of the Shares by the registered holders resolutions of the Shares in favour board of directors of SKT authorising the Purchaser or execution of, and performance by, SKT of its nominees together with valid share certificates representing obligations under the Shares Transaction Documents to which it is a party; and
(ii) a certificate signed by a director of SKT confirming that all the SKT Warranties are true and all (if any) other documents required to give good title to accurate and not misleading as at the Sharesdate of this Agreement and as at the Completion Date;
(b) procure to be delivered to Citibank, N.A. Hong Kong Branch (Citi Hong Kong) (with a copy to Unicom) delivery free of payment (DF) instructions from its custodian, Korea Securities Depository (KSD), to transfer the delivery Repurchase Shares from KSD’s securities account with Citi Hong Kong to Unicom’s securities account with Citi Hong Kong (the Purchaser of powers of attorney in the agreed form duly executed by the registered holders of the SharesUnicom Securities Account) for same day settlement;
(c) procure to be delivered to Unicom a certificate (in a form reasonably satisfactory to Unicom) from Citi Hong Kong confirming the delivery to the Purchaser receipt of the Tax Covenant duly executed by DF instructions referred to in Clause 5.2(b) above (the Vendor;Citi Certificate); and
(d) the delivery procure its nominee on Unicom Board, Mr. Man Won Jung, to the Purchaser resign as a director of the following, each duly executed and in form and substance satisfactory to the Purchaser:-
(i) a deed of release given in relation to the Company Guarantee;
(ii) a deed of release by each person holding or being entitled to any Encumbrance over the Shares or any of the assets of the Company;
(iii) a deed of waiver by the Vendor waiving any claim it or any of its subsidiaries or Associates may have against the Company;
(iv) deeds of waiver by each co-guarantor of the Company in respect of the Company Guarantee;
(e) the delivery to the Purchaser of the statutory books (duly written up to date) and the certificate(s) of incorporation of the Company;
(f) the delivery to the Purchaser of all current cheque books and deposit books relating to all bank accounts of the Company;
(g) the delivery to the Purchaser of all documents of title relating to the Properties;
(h) the delivery to the Purchaser of copies of the minutes of the meetings of the boards of directors of the Vendor in the agreed form, authorising (in each case) the entry into of the transaction the subject of this Agreement, approving this Agreement and any other agreements or documents to be executed pursuant to or in connection with it and appointing the relevant signatory to sign this Agreement and such other agreements and documents on their behalf certified by the company secretary of the Vendor together with (in each case) confirmation, in the agreed form, from the company secretary that the authority conferred remains valid at Completion;
(i) the passing of effective resolutions of the Directors resolving to register the transfers of the Shares subject only to stamping of the share transfers;
(j) (at the cost of the Vendor) the convening and holding of all such meetings, the passing of all such resolutions, the execution and delivery of all such documents and the taking of all other action to the extent reasonably necessary in order to complete the transfer of title to the Shares to the Purchaser free from all Encumbrances and to enable the Purchaser to exercise and receive all rights and benefits attaching to or arising from the Shares;
(k) Unicom with effect from Completion, the appointment as directors Completion Date and secretary of the Company of such person or persons as the Purchaser shall have nominated and the resignation of each of the Directors (except ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ and ▇▇▇▇ ▇▇▇▇▇) and the secretary of the Company by delivery of a letter under seal from each such Director and the secretary resigning from his offices and from any employment he may have with the Company with effect from Completion and acknowledging to deliver an acknowledgement to Unicom that he has no claim does not have any claims whatsoever against the Company either actual or contingent in respect of any cause matter or thing (statutory or otherwise);
(l) the resignation of the auditors of the Company (without Unicom for compensation for loss of office (whether contractual, statutory or otherwise), unfair dismissal, redundancy or otherwise, he has no disagreement with the Unicom Board and he is not aware of any other claim save for proper professional fees for services rendered matters in respect of their duties as auditors prior his resignation that needs to the completion of the 1997 Audit) with effect from completion of the 1997 Audit and the delivery of a statement by them that there are no circumstances connected with their ceasing to hold office which they consider should be brought to the attention of the members or creditors shareholders of the Company;
(m) revocation of all existing authorities to the bankers of the Company relating to bank accounts and the grant of authority to such persons as the Purchaser may nominate to operate the same;
(n) that all books, records and files of the Company are in its possession or under its control and where any such are not at the Properties that the Purchaser is given details of their whereabouts and any necessary authority to collect them;
(o) the delivery to the Purchaser of duly completed and executed transfers of all shares in the capital of Firstpoint Services Limited not registered in the name of the Company, the statutory books and common seal (if any) of Firstpoint Services Limited and certificates for all of the issued shares in Firstpoint Services LimitedUnicom.
4.3 Immediately following fulfilment of all the matters referred to in Clause 4.2 the Purchaser 5.3 At Completion, Unicom shall:
(a) deliver or procure that that part to be delivered to SKT:
(i) a copy (certified as a true copy by a director or the company secretary of Unicom) of the Consideration payable in cash on Completion is paid by bankers draft to the Vendor's Solicitors (who are hereby irrevocably authorised to receive that consideration) on behalf resolutions of the VendorUnicom Board authorising the execution of, and performance by, Unicom of its obligations under the Transaction Documents to which it is a party; and
(ii) a certificate signed by a director of Unicom confirming that all the Unicom Warranties are true and accurate and not misleading as at the date of this Agreement and as at the Completion Date;
(b) deliver to Citi Hong Kong (with a copy to SKT):
(i) receive free of payment (RF) instructions to receive the Vendor's Solicitors a counterpart Repurchase Shares in the Unicom Securities Account and to arrange for payment of Hong Kong stamp duty on behalf of the Tax Covenant duly executed by Parties; and
(ii) DF instructions to withdraw the Purchaser;Repurchase Shares from the Central Clearing and Settlement System (CCASS) and deliver physical share certificates in respect of the Repurchase Shares to Unicom’s share registrar; and
(c) if requestedupon receipt of the Citi Certificate, Unicom shall give irrevocable payment instructions to its bank to pay the Consideration (less the SFC Fee, the Initial Stamp Duty Amount and such other amounts as may be agreed by the Parties in writing) in immediately available funds by electronic funds transfer in HK$ to a bank account designated by SKT in writing at least three Business Days prior to the Vendor's cost, Completion Date and shall deliver to SKT a copy of such irrevocable payment instructions.
5.4 Neither Party shall be obliged to complete the Vendor's Solicitors a legal opinion in a form reasonably satisfactory to the Vendor as to the validity sale and enforceability purchase of any of the guarantee contained within Clause 11 Repurchase Shares unless the sale and purchase of this Agreement and if such opinion is that such guarantee is not valid and enforceable such amendments shall be made to the guarantee as render it valid and enforceable; and
(d) as agent for the Company, repay the Inter-Company Debt by bankers draft to the Vendor's Solicitors (who are hereby irrevocably authorised to receive that payment) on behalf all of the Vendor and its subsidiaries and Associates. The delivery of a bankers draft to the Vendor's Solicitors shall be a full and sufficient discharge to the Purchaser for the monies payable on Completion and the Purchaser shall not be concerned to see to the application of any payment by the Purchaser under this Clause 4.3Repurchase Shares is completed simultaneously.
4.4 5.5 If all the provisions of Clause 4.2 Clauses 5.2 and 5.3 are not fully complied with by Unicom or SKT by or on the date set for Completion, SKT (in full the case of non-compliance by Unicom) or Unicom (in the case of non-compliance by SKT) shall be entitled (in addition to and without prejudice to all other rights and remedies available to the terminating party, including the right to claim damages) by written notice to the other Party served on Completion the Purchaser maysuch date:
(a) defer to elect to terminate this Agreement (other than the Surviving Provisions) without liability on the part of the terminating party, except in respect of any rights and liabilities which have accrued prior to termination or under any of the Surviving Provisions;
(b) to effect Completion so far as practicable having regard to the defaults which have occurred; or
(c) to fix a new date for Completion (not being more than 28 days five Business Days after the agreed date specified in Clause 4.1 for Completion), in which event case the foregoing provisions of this Clause 4.4 5 shall apply to Completion as so deferred; or.
5.6 Upon Unicom’s share registrar receiving the physical share certificates in respect of the Repurchase Shares, Unicom shall procure Unicom’s share registrar to cancel the Repurchase Shares and any rights attached thereto shall cease with effect from the Completion Date. SKT confirms that it irrevocably authorises Unicom to take all such actions as may be necessary or expedient for the cancellation of the Repurchase Shares and acknowledges that it shall cease to have any rights to, or interests in, the Repurchase Shares with effect from the Completion Date.
5.7 Notwithstanding anything herein to the contrary, if Completion does not take place on or before 5:00 p.m. (bHong Kong time) proceed to Completion so far on 10 November 2009 (or such other time and date as practicable without prejudice to its rights the Parties may agree in writing), this Agreement (other than the Surviving Provisions) shall automatically terminate. In such event, neither Party shall have any claim of any nature under this Agreement or otherwise and so that against the other Party (except in respect of any provision of Clause 4.2 which may not have been complied with at Completion shall at the sole discretion of the Purchaser be held over to such future date or dates as the Purchaser may in its sole discretion determine; or
(c) terminate this Agreement (save for Clauses 12, 13, 14 and 20, which shall remain in full force and effect) provided that such termination shall not affect the rights and obligations of the parties liabilities which have accrued prior to termination or under any of the Surviving Provisions).”
2.2 The reference to “HK$9,991,669.06” in the second line of Clause 11.4 of the Share Repurchase Agreement shall be deleted and shall not limit or exclude any other rights or remedies of the Purchaser in respect of any failure be replaced by the Vendor to comply with the requirements of Clause 4.2 on the due date“HK$9,991,670.00”.
4.5 The Vendor shall use all reasonable endeavours to procure compliance with the provisions of Clause 4.2 on any date set for Completion in accordance with this Agreement.
4.6 The Vendor undertakes to and covenants with the Purchaser (for itself and as trustee for the Company) that if, after Completion, it is discovered that the Company had on or before Completion given or undertaken any guarantees, indemnities or similar securities in respect of the obligations or liabilities of any person other than the Company and such guarantees, indemnities or similar securities were not finally and unconditionally released on or before Completion, the Vendor will fully indemnify the Purchaser and the Company and keep each of them fully indemnified on demand against all claims, demands, actions, proceedings, damages, losses, costs, expenses or liabilities suffered or incurred by the Purchaser or the Company under or in connection with such guarantees, indemnities or similar obligations.
Appears in 1 contract
Sources: Share Repurchase Agreement (CHINA UNICOM (HONG KONG) LTD)
Completion. 4.1 Completion shall take place at the offices of the Purchaser's Solicitors immediately following sale and purchase of the signing of this Agreement or at such other place or time as the Vendor Businesses and the Assets:-
4.1.1 shall be conditional upon the satisfaction of the following conditions precedent to the satisfaction of the Purchaser may agree.
4.2 At Completion and in the Vendor shall procure:case of Clause 4.1.1. (d) only the Vendors' Representative:-
(a) no material adverse change in the delivery Businesses and Assets having taken place prior to the Purchaser of duly completed and executed transfers of the Shares by the registered holders of the Shares in favour of the Purchaser or its nominees together with valid share certificates representing the Shares and all (if any) other documents required to give good title to the SharesCompletion;
(b) the delivery to the Purchaser of powers of attorney in the agreed form duly executed by the registered holders of the Sharesno interdict or other legal prohibition preventing Completion taking place;
(c) no litigation, arbitration or other proceeds of a similar nature having been commenced or being pending against the delivery to the Purchaser Vendors or any of them which would, if decided in favour of the Tax Covenant duly executed by person instituting such proceedings, be reasonably likely to have a material adverse effect on the VendorBusinesses and/or the Assets;
(d) the delivery to Vendors and the Purchaser having complied with the terms of the following, each duly executed and this Agreement in form and substance satisfactory to the Purchaser:-
(i) a deed of release given in relation to the Company Guarantee;
(ii) a deed of release by each person holding or being entitled to any Encumbrance over the Shares or any of the assets of the Company;
(iii) a deed of waiver by the Vendor waiving any claim it or any of its subsidiaries or Associates may have against the Company;
(iv) deeds of waiver by each co-guarantor of the Company in respect of the Company Guaranteeall material respects;
(e) none of the delivery Key Employees having left the employment of the Vendors or working any applicable notice period and no more than 15 of the Transferred Employees (not including any of the Key Employees) having left the employment of the Vendors or having given formal notice terminating their contracts of employment with any of the Vendors without appropriate replacements having been found for such -------------------------------------------------------------------------------- 62 persons (provided that the transfer of the HK Employees, Singapore Employees, Japan Employees and USAV Employees and related terminations pursuant to Clause 14 shall be excluded from the operation of this sub-Clause (e) to the Purchaser extent that such employees accept the offer of employment made by the various members of the statutory books (duly written up Purchaser Group pursuant to date) and the certificate(s) of incorporation of the CompanyClause 14);
(f) the delivery Purchaser being provided with updated lists of Plant and Equipment and being satisfied that any additions or deletions to the Purchaser lists of all current cheque books Plant and deposit books relating to all bank accounts Equipment are permitted in terms of the CompanyClause 4.3;
(g) the delivery Purchaser being satisfied with the transfer of the Data Suppliers Contracts, the Development Agreements and the Existing Reuters Agreement to the Purchaser of all documents of title relating to the Properties(such transfer being conditional on Completion taking place);
(h) none of the delivery directors of UK having refused to allow the Purchaser of copies to contact any of the minutes customers of the meetings of the boards of directors of the Vendor in the agreed form, authorising (in each case) the entry into of the transaction the subject of this Agreement, approving this Agreement and any other agreements or documents to be executed Businesses pursuant to or in connection with it and appointing the relevant signatory to sign this Agreement and such other agreements and documents on their behalf certified by the company secretary of the Vendor together with (in each case) confirmation, in the agreed form, from the company secretary that the authority conferred remains valid at Completion;
Clause 4.3.9; (i) the passing Purchaser being satisfied regarding searches in the appropriate registers in respect of effective resolutions UK's ownership of the Directors resolving to register trade marks contained within the transfers of the Shares subject only to stamping of the share transfers;
Specific IP; (j) (at the cost Purchaser being reasonably satisfied with enquiries of customers of the Vendor) the convening and holding of all such meetings, the passing of all such resolutions, the execution and delivery of all such documents and the taking of all other action to the extent reasonably necessary in order to complete the transfer of title to the Shares to the Purchaser free from all Encumbrances and to enable the Purchaser to exercise and receive all rights and benefits attaching to or arising from the Shares;
(k) with effect from Completion, the appointment Businesses as directors and secretary of the Company of such person or persons as the Purchaser shall have nominated and the resignation of each of the Directors (except ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ and ▇▇▇▇ ▇▇▇▇▇) and the secretary of the Company by delivery of a letter under seal from each such Director and the secretary resigning from his offices and from any employment he may have with the Company with effect from Completion and acknowledging that he has no claim against the Company either actual or contingent in respect of any cause matter or thing (statutory or otherwise);
(l) the resignation of the auditors of the Company (without compensation for loss of office or any other claim save for proper professional fees for services rendered in respect of their duties as auditors prior to the completion of the 1997 Audit) with effect from completion of the 1997 Audit and the delivery of a statement by them that there are no circumstances connected with their ceasing to hold office which they consider should be brought to the attention of the members or creditors of the Company;
(m) revocation of all existing authorities to the bankers of the Company relating to bank accounts and the grant of authority to such persons as the Purchaser may nominate to operate the same;
(n) that all books, records and files of the Company are in its possession or under its control and where any such are not at the Properties that the Purchaser is given details of their whereabouts and any necessary authority to collect them;
(o) the delivery to the Purchaser of duly completed and executed transfers of all shares set out in the capital of Firstpoint Services Limited not registered in the name of the Company, the statutory books and common seal (if any) of Firstpoint Services Limited and certificates for all of the issued shares in Firstpoint Services Limited.
4.3 Immediately following fulfilment of all the matters referred to in Clause 4.2 the Purchaser shall:
(a) procure that that part of the Consideration payable in cash on Completion is paid by bankers draft to the Vendor's Solicitors (who are hereby irrevocably authorised to receive that consideration) on behalf of the VendorExecution SRR Schedule;
(b) deliver to the Vendor's Solicitors a counterpart of the Tax Covenant duly executed by the Purchaser;
(c) if requested, and at the Vendor's cost, deliver to the Vendor's Solicitors a legal opinion in a form reasonably satisfactory to the Vendor as to the validity and enforceability of the guarantee contained within Clause 11 of this Agreement and if such opinion is that such guarantee is not valid and enforceable such amendments shall be made to the guarantee as render it valid and enforceable; and
(d) as agent for the Company, repay the Inter-Company Debt by bankers draft to the Vendor's Solicitors (who are hereby irrevocably authorised to receive that payment) on behalf of the Vendor and its subsidiaries and Associates. The delivery of a bankers draft to the Vendor's Solicitors shall be a full and sufficient discharge to the Purchaser for the monies payable on Completion and the Purchaser shall not be concerned to see to the application of any payment by the Purchaser under this Clause 4.3.
4.4 If all the provisions of Clause 4.2 are not complied with in full on Completion the Purchaser may:
(a) defer Completion to a date not more than 28 days after the date specified in Clause 4.1 in which event the provisions of this Clause 4.4 shall apply to Completion as so deferred; or
(b) proceed to Completion so far as practicable without prejudice to its rights under this Agreement or otherwise and so that any provision of Clause 4.2 which may not have been complied with at Completion shall at the sole discretion of the Purchaser be held over to such future date or dates as the Purchaser may in its sole discretion determine; or
(c) terminate this Agreement (save for Clauses 12, 13, 14 and 20, which shall remain in full force and effect) provided that such termination shall not affect the rights and obligations of the parties which have accrued prior to termination and shall not limit or exclude any other rights or remedies of the Purchaser in respect of any failure by the Vendor to comply with the requirements of Clause 4.2 on the due date.
4.5 The Vendor shall use all reasonable endeavours to procure compliance with the provisions of Clause 4.2 on any date set for Completion in accordance with this Agreement.
4.6 The Vendor undertakes to and covenants with the Purchaser (for itself and as trustee for the Company) that if, after Completion, it is discovered that the Company had on or before Completion given or undertaken any guarantees, indemnities or similar securities in respect of the obligations or liabilities of any person other than the Company and such guarantees, indemnities or similar securities were not finally and unconditionally released on or before Completion, the Vendor will fully indemnify the Purchaser and the Company and keep each of them fully indemnified on demand against all claims, demands, actions, proceedings, damages, losses, costs, expenses or liabilities suffered or incurred by the Purchaser or the Company under or in connection with such guarantees, indemnities or similar obligations.
Appears in 1 contract
Completion. 4.1 4A.1 Subject to the satisfaction of the Conditions, Completion shall take place at on the offices of the Purchaser's Solicitors immediately following the signing of this Agreement or Completion Date at such other place or time as may be agreed between the Parties when all the acts and requirements set out in Clauses 4A.2 to 4A.4 shall be complied with.
4A.2 The Vendor and shall deliver to the Purchaser may agree.
4.2 At Completion all the Vendor shall procurefollowing:
(a1) the delivery to the Purchaser of duly completed standard transfer forms and executed transfers sold notes in respect of the Sale Shares duly executed by the registered holders of the Shares Vendor in favour of the Purchaser or its nominees together with valid accompanied by the relevant original share certificates representing the Shares and all (if any) other documents required to give good title to the Shares;
(b) the delivery to the Purchaser of powers of attorney in the agreed form duly executed by the registered holders of the Shares;
(c) the delivery to the Purchaser of the Tax Covenant duly executed by the Vendor;
(d) the delivery to the Purchaser of the following, each duly executed and in form and substance satisfactory to the Purchaser:-
(i) a deed of release given in relation to the Company Guarantee;
(ii) a deed of release by each person holding or being entitled to any Encumbrance over the Shares or any of the assets of the Company;
(iii) a deed of waiver by the Vendor waiving any claim it or any of its subsidiaries or Associates may have against the Company;
(iv) deeds of waiver by each co-guarantor of the Company in respect of the Company Guarantee;
(e) the delivery to the Purchaser of the statutory books (duly written up to date) and the certificate(s) of incorporation of the Company;
(f) the delivery to the Purchaser of all current cheque books and deposit books relating to all bank accounts of the Company;
(g) the delivery to the Purchaser of all documents of title relating to the Properties;
(h) the delivery to the Purchaser of copies of the minutes of the meetings of the boards of directors of the Vendor in the agreed form, authorising (in each case) the entry into of the transaction the subject of this Agreement, approving this Agreement and any other agreements or documents to be executed pursuant to or in connection with it and appointing the relevant signatory to sign this Agreement and such other agreements and documents on their behalf certified by the company secretary of the Vendor together with (in each case) confirmation, in the agreed form, from the company secretary that the authority conferred remains valid at Completion;
(i) the passing of effective resolutions of the Directors resolving to register the transfers of the Shares subject only to stamping of the share transfers;
(j) (at the cost of the Vendor) the convening and holding of all such meetings, the passing of all such resolutions, the execution and delivery of all such documents and the taking of all other action to the extent reasonably necessary in order to complete the transfer of title to the Shares to the Purchaser free from all Encumbrances and to enable the Purchaser to exercise and receive all rights and benefits attaching to or arising from the Shares;
(k) with effect from Completion, the appointment as directors and secretary of the Company of such person or persons as the Purchaser shall have nominated and the resignation of each of the Directors (except ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ and ▇▇▇▇ ▇▇▇▇▇) and the secretary of the Company by delivery of a letter under seal from each such Director and the secretary resigning from his offices and from any employment he may have with the Company with effect from Completion and acknowledging that he has no claim against the Company either actual or contingent in respect of any cause matter or thing (statutory or otherwise);
(l) the resignation of the auditors of the Company (without compensation for loss of office or any other claim save for proper professional fees for services rendered in respect of their duties as auditors prior to the completion of the 1997 Audit) with effect from completion of the 1997 Audit and the delivery of a statement by them that there are no circumstances connected with their ceasing to hold office which they consider should be brought to the attention of the members or creditors of the Company;
(m) revocation of all existing authorities to the bankers of the Company relating to bank accounts and the grant of authority to such persons as the Purchaser may nominate to operate the same;
(n) that all books, records and files of the Company are in its possession or under its control and where any such are not at the Properties that the Purchaser is given details of their whereabouts and any necessary authority to collect them;
(o) the delivery to the Purchaser of duly completed and executed transfers of all shares in the capital of Firstpoint Services Limited not registered in the name of the Company, Vendor (unless the statutory books and common seal (if any) of Firstpoint Services Limited and share certificates for all issued in the name of the issued shares in Firstpoint Services Limited.
4.3 Immediately following fulfilment of all the matters referred to in Clause 4.2 Vendor have been deposited with the Purchaser shall:before Completion under Clause 4A.7);
(a2) procure that that part copy, certified as true and complete by a director of the Consideration payable Vendor, of resolutions of its board of directors approving this Agreement and authorising a person or persons to execute the same and all other documents relating or incidental thereto (under seal, where appropriate) for and on its behalf;
(3) a banker’s draft drawn in cash on Completion is paid by bankers draft favour of The Government of the Hong Kong Special Administrative Region for the sum equivalent to the Vendor's Solicitors ’s share of stamp duty for the Sale Shares; and
(who are hereby irrevocably authorised 4) a copy, certified true and complete by a director of the AMTD Buyer, of resolutions of the board of directors of the AMTD Buyer approving this Agreement and all other transactions contemplated under this Agreement and authorising a person or persons to receive that considerationexecute the same and all other documents relating or incidental thereto (under seal where appropriate) for and on behalf of the Vendor;AMTD Buyer.
(b) 4A.3 The Purchaser shall deliver to the Vendor's Solicitors a counterpart :
(1) standard transfer form and bought notes in respect of the Tax Covenant Sale Shares duly executed by the Purchaser;
(c2) if requested, and at a banker’s draft drawn in favour of The Government of the Vendor's cost, deliver Hong Kong Special Administrative Region for the sums equivalent to the Vendor's Solicitors Purchaser’s share of stamp duty for the Sale Shares;
(3) a legal opinion in copy, certified true and complete by a form reasonably satisfactory to the Vendor as to the validity and enforceability director of the guarantee contained within Clause 11 Purchaser, of resolutions of the board of directors of the Purchaser approving this Agreement and if such opinion is that such guarantee is not valid all other transactions contemplated under this Agreement and enforceable such amendments shall be made authorising a person or persons to execute the guarantee as render it valid same and enforceableall other documents relating or incidental thereto (under seal where appropriate) for and on behalf of the Purchaser; and
(d4) as agent a copy, certified true and complete by a director of the AMTD Seller, of resolutions of the board of directors of the AMTD Seller approving this Agreement and all other transactions contemplated under this Agreement and authorising a person or persons to execute the same and all other documents relating or incidental thereto (under seal where appropriate) for the Company, repay the Inter-Company Debt by bankers draft to the Vendor's Solicitors (who are hereby irrevocably authorised to receive that payment) and on behalf of the Vendor and its subsidiaries and Associates. AMTD Seller.
4A.4 The delivery of a bankers draft AMTD Seller shall deliver to the Vendor's Solicitors shall be a full and sufficient discharge to AMTD Buyer all the Purchaser for AMTD Shares in settlement of the monies payable on Completion Consideration in accordance with Clause 3.
4A.5 The Vendor and the Purchaser shall not be concerned to see to jointly procure the application due stamping of any payment the transfer form and bought and sold notes duly executed by the Purchaser under this Clause 4.3and the Vendor within the time limit as prescribed by the Stamp Duty Ordinance (Cap. 117 of the Laws of Hong Kong) and registration of the same with the branch share registrar of the Company in Hong Kong. The Vendor and the Purchaser hereby jointly instruct and authorize the Purchaser’s legal advisers to attend the stamping of the said transfer form and bought and sold notes.
4.4 If all 4A.6 In the provisions of Clause 4.2 are not complied with in full on Completion event that the Vendor, the Purchaser or the AMTD Seller shall without reasonable ground fail to do anything required to be done by it under Clause 4A.2 (for the Vendor), Clause 4A.3 (for the Purchaser) or Clause 4A.4 (for the AMTD Seller), without prejudice to any other right or remedy available to the non-defaulting parties, the non-defaulting party may:
(a1) defer Completion to a date day not more than 28 14 days after the date specified in Clause 4.1 in which event fixed for Completion (and so that the provisions provision of this Clause 4.4 paragraph (1) shall apply to Completion as so deferred); or
(b2) proceed to Completion so far as practicable but without prejudice to its rights under this Agreement or otherwise and so the non- defaulting party’s right to the extent that any provision of Clause 4.2 which may the defaulting party shall not have been complied with at Completion shall at its obligations hereunder.
4A.7 The Parties acknowledge that the sole discretion Vendor’s application for new replacement certificates for the Sale Shares (Existing) is in process and the new original certificates or documents of title in respect of the Purchaser be held over to such future date or dates as the Purchaser may Sale Shares in its sole discretion determine; or
(c) terminate this Agreement (save for Clauses 12, 13, 14 and 20, which shall remain in full force and effect) provided that such termination shall not affect the rights and obligations name of the parties which have accrued prior to termination and shall not limit or exclude any other rights or remedies Vendor from the branch registrar of the Purchaser Company will be issued before Completion. The Vendor has agreed to grant authorisations to any of the Purchaser's representatives or advisers as it may designate to act as authorised agents on behalf the Vendor to collect from (and, in the case of an issue by way of exchange/conversion, surrender to) and give valid receipts to the branch registrar of the Company any and all new original certificates, and other documents of title if applicable, issued in respect of any failure by and all of:
(1) the Vendor to comply with Sale Shares (Existing);
(2) the requirements of Clause 4.2 on the due date.
4.5 The Vendor shall use all reasonable endeavours to procure compliance with the provisions of Clause 4.2 on any date set Sale Shares (New) issued in exchange for Completion in accordance with this Agreement.
4.6 The Vendor undertakes to and covenants with the Purchaser (for itself and as trustee for the Company) that if, after Completion, it is discovered that the Company had on or before Completion given or undertaken any guarantees, indemnities or similar securities in respect of the obligations Sale Shares (Existing); and
(3) the Bonus Securities I and Bonus Securities II (if any) distributed to or liabilities received by the Vendor, or to which the Vendor is entitled, in respect of any person other than of the Company and such guarantees, indemnities or similar securities were not finally and unconditionally released on or before Sale Shares (Existing) and/or Sale Shares (New) from the date of this Agreement to the Completion, and, upon collection, deposit the Vendor will fully indemnify same with the Purchaser and the Company and keep each of them fully indemnified on demand against all claims, demands, actions, proceedings, damages, losses, costs, expenses or liabilities suffered or incurred by the Purchaser or the Company under or Purchaser’s lawyers in connection with such guarantees, indemnities or similar obligationsescrow pending Completion.
Appears in 1 contract
Sources: Share Purchase Agreement
Completion. 4.1 5.1 Completion shall take place at the offices of the PurchaserSeller's Solicitors immediately following on the signing of this Agreement Completion Date or at such other place and/or on such earlier date as may be agreed between the parties.
5.2 On or time as before Completion the Vendor Seller shall procure and the Purchaser may agree.
4.2 At Completion the Vendor Buyer shall procurepermit that:
(a) all loans and debts due to any member of the delivery Seller's Group in respect of or in relation to the Purchaser of duly completed Hardware Business from, and executed transfers all loans and debts due from any member of the Shares by the registered holders Seller's Group in respect of the Shares or in favour of the Purchaser or its nominees together with valid share certificates representing the Shares and all (if any) other documents required to give good title relation to the SharesHardware Business to, the Seller and every other entity in the Seller's Group shall be repaid or paid in full;
(b) all loans due to any member of the delivery Seller's Group in respect of or in relation to the Purchaser of powers of attorney in the agreed form duly executed by the registered holders Hardware Business from, and all loans due from any member of the SharesSeller's Group in respect of or in relation to Hardware Business to, directors or employees of any member of the Seller's Group in respect of or in relation to the Hardware Business shall be repaid in full;
(c) all salaries, directors' fees, expenses and bonuses (if any) of all directors and employees of the delivery Seller engaged in or employed in respect of the Hardware Business shall be paid up to the Purchaser Completion Date including any pro-rated amounts for the period up to the Effective Date.
5.3 On Completion the Seller shall cause to be delivered to the Buyer:
(a) certified minutes of the Tax Covenant meetings of the board of directors of the Seller and the Sellers Guarantor approving the transactions contained in this Agreement to which they are party and the documents referred to herein and authorising the execution thereof by the Seller and the Sellers Guarantor (as the case may be).
(b) physical possession of all the Assets capable of passing by delivery with the intent that title in such Assets shall pass by and upon such delivery;
(c) duly executed by agreements in the Vendoragreed terms for the assignment or novation of the benefit of the Business Contracts to the Buyer, or as the Buyer shall direct, and all requisite consents and licences therefor;
(d) the delivery to the Purchaser of the following, each a duly executed and assignment in form and substance satisfactory the agreed terms to vest the Purchaser:-
(i) a deed of release given the Goodwill in relation to the Company Guarantee;
(ii) a deed of release by each person holding Buyer or being entitled to any Encumbrance over as the Shares or any of the assets of the Company;
(iii) a deed of waiver by the Vendor waiving any claim it or any of its subsidiaries or Associates may have against the Company;
(iv) deeds of waiver by each co-guarantor of the Company in respect of the Company GuaranteeBuyer shall direct;
(e) all documents of title and certificates for the delivery to lawful operation and use of, and all service documents pertaining to, the Purchaser of the statutory books (duly written up to date) Fixed Assets and the certificate(s) of incorporation of the CompanyStock;
(f) duly executed Trade ▇▇▇▇ Assignments, Baltimore Licence and Sureware Licence in the delivery to the Purchaser of all current cheque books and deposit books relating to all bank accounts agreed terms of the CompanyBusiness Intellectual Property;
(g) the delivery to the Purchaser of all documents of title title, certificates, deeds, licences, agreements and other documents relating to the PropertiesBusiness Intellectual Property and all manuals, drawings, plans, documents and other materials and media on which the Business Information is recorded;
(h) the delivery Business Contracts and the books, accounts, reference lists of customers, credit reports, price lists, cost records, work tickets, catalogues, advertising and all other documents, papers and records in the possession or under the control of the Seller relating to the Purchaser of copies Hardware Business or any of the minutes of Assets duly written up to the meetings of the boards of directors of the Vendor in the agreed form, authorising (in each case) the entry into of the transaction the subject of this Agreement, approving this Agreement and any other agreements or documents to be executed pursuant to or in connection with it and appointing the relevant signatory to sign this Agreement and such other agreements and documents on their behalf certified by the company secretary of the Vendor together with (in each case) confirmation, in the agreed form, from the company secretary that the authority conferred remains valid at CompletionCompletion Date;
(i) all files and documentation in relation to the passing Trade Marks including those of effective resolutions of the Directors resolving advisers to register the transfers of the Shares subject only include correspondence from and to stamping of the share transfersany Trade ▇▇▇▇ Registry and any searches or search results;
(j) (at the cost of the Vendor) the convening and holding of all such meetings, the passing of all such resolutions, the execution and delivery of all such documents and the taking of all other action to the extent reasonably necessary in order to complete the transfer of title to the Shares to the Purchaser free from all Encumbrances and to enable the Purchaser to exercise and receive all rights and benefits attaching to or arising from the SharesRecords;
(k) with effect from Completion, subject to the appointment as directors and secretary terms of the Company of such person or persons as the Purchaser shall have nominated this Agreement and the resignation of each of Transitional Services Agreement, a written acknowledgement executed as a deed from the Directors (except ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Seller that all arrangements to which the Seller is a party and ▇▇▇▇ ▇▇▇▇▇) which affect the Hardware Business or Assets other than the Business Contracts have been cancelled by mutual agreement and without any compensation or damages being payable by either party to the secretary of the Company by delivery of a letter under seal from each such Director and the secretary resigning from his offices and from any employment he may have with the Company with effect from Completion and acknowledging that he has no claim against the Company either actual or contingent in respect of any cause matter or thing (statutory or otherwise)other;
(l) the resignation of the auditors of the Company (without compensation for loss of office or any other claim save for proper professional fees for services rendered all National Insurance PAYE records fully completed in respect of their duties as auditors prior the Employees and showing that payments are up to the completion of the 1997 Audit) with effect from completion of the 1997 Audit and the delivery of a statement by them that there are no circumstances connected with their ceasing to hold office which they consider should be brought to the attention of the members or creditors of the Companydate;
(m) revocation of all existing authorities to the bankers of the Company relating to bank accounts and the grant of authority to such persons as the Purchaser may nominate to operate the sameduly executed Transitional Services Agreement;
(n) that all books, records and files of the Company are in its possession or under its control and where any such are not at the Properties that the Purchaser is given details of their whereabouts and any necessary authority to collect themduly executed Lease;
(o) all necessary licences permits authorisation or authorities (public or private) to enable the delivery Seller to carry on the Purchaser of duly completed Hardware Business as currently carried on and executed transfers of all shares in the capital of Firstpoint Services Limited not registered in the name of the Company, the statutory books and common seal (if any) of Firstpoint Services Limited and certificates for all of the issued shares in Firstpoint Services Limited.
4.3 Immediately following fulfilment of all the matters referred to in Clause 4.2 the Purchaser shall:
(a) procure that that part of the Consideration payable in cash on Completion is paid by bankers draft to the Vendor's Solicitors (who are hereby irrevocably authorised to receive that consideration) on behalf of the Vendoraccordance with law;
(bp) deliver to the Vendor's Solicitors a counterpart of the Tax Covenant duly executed by Trusted World Partnership Agreement between BTL and AEP Systems Limited in the Purchaseragreed terms;
(cq) if requested, the duly executed Licence and at the Vendor's cost, deliver to the Vendor's Solicitors a legal opinion in a form reasonably satisfactory to the Vendor as to the validity and enforceability of the guarantee contained within Clause 11 of this Agreement and if such opinion is that such guarantee is not valid and enforceable such amendments shall be made to the guarantee as render it valid and enforceable; andLicence List X;
(dr) as agent for the Company, repay the Inter-Company Debt by bankers draft to the Vendor's Solicitors (who are hereby irrevocably authorised to receive that payment) on behalf duly executed Deed of the Vendor and its subsidiaries and Associates. The delivery of a bankers draft to the Vendor's Solicitors shall be a full and sufficient discharge to the Purchaser for the monies payable on Completion and the Purchaser shall not be concerned to see to the application of any payment by the Purchaser under this Clause 4.3Covenant.
4.4 If all (s) the provisions of Clause 4.2 are not complied with in full on Completion the Purchaser may:
(a) defer Completion to a date not more than 28 days after the date specified in Clause 4.1 in which event the provisions of this Clause 4.4 shall apply to Completion as so deferred; or
(b) proceed to Completion so far as practicable without prejudice to its rights under this Agreement or otherwise and so that any provision of Clause 4.2 which may not have been complied with at Completion shall at the sole discretion of the Purchaser be held over to such future date or dates as the Purchaser may in its sole discretion determine; or
(c) terminate this Agreement (save for Clauses 12, 13, 14 and 20, which shall remain in full force and effect) provided that such termination shall not affect the rights and obligations of the parties which have accrued prior to termination and shall not limit or exclude any other rights or remedies of the Purchaser in respect of any failure by the Vendor to comply with the requirements of Clause 4.2 on the due date.
4.5 The Vendor shall use all reasonable endeavours to procure compliance with the provisions of Clause 4.2 on any date set for Completion in accordance with this duly executed Reseller Agreement.
4.6 The Vendor undertakes to and covenants with the Purchaser (for itself and as trustee for the Company) that if, after Completion, it is discovered that the Company had on or before Completion given or undertaken any guarantees, indemnities or similar securities in respect of the obligations or liabilities of any person other than the Company and such guarantees, indemnities or similar securities were not finally and unconditionally released on or before Completion, the Vendor will fully indemnify the Purchaser and the Company and keep each of them fully indemnified on demand against all claims, demands, actions, proceedings, damages, losses, costs, expenses or liabilities suffered or incurred by the Purchaser or the Company under or in connection with such guarantees, indemnities or similar obligations.
Appears in 1 contract
Sources: Sale and Purchase Agreement (Baltimore Technologies PLC)
Completion. 4.1 Sellers’ Stage 1 Completion Arrangements Completion of the sale and purchase of the Stage 1 Completion Shares shall take place at the offices of the Purchaser's ’s Solicitors immediately following on the signing Stage 1 Completion Date. At Stage 1 Completion, the Sellers shall:
4.1.1 deliver to the Purchaser evidence, to the Purchaser’s reasonable satisfaction, of the authority of any person or persons executing or attesting the execution of this Agreement or at such and any other place or time as the Vendor and the Purchaser may agree.document entered into pursuant to this Agreement on its behalf to do so;
4.2 At Completion the Vendor shall procure:
(a) the delivery 4.1.2 deliver to the Purchaser of duly completed and executed transfers of the Shares by the registered holders of the Shares in favour of the Purchaser / or its nominees duly executed share transfers in respect of the Stage 1 Completion Shares together with valid the relevant certificates (or, in the case of any missing share certificates representing the Shares and all (if any) other documents required to give good title to the Shares;
(b) the delivery certificates, an indemnity in a form satisfactory to the Purchaser of powers of attorney acting reasonably in the agreed form duly executed by the registered holders of the Sharesrespect thereof);
(c) the delivery 4.1.3 deliver to the Purchaser evidence to its reasonable satisfaction that any debt owed by or to any Group Company to or by any Seller (or any Connected Person of the Tax Covenant duly executed by the Vendorany Seller) has been repaid;
4.1.4 deliver to the Purchaser, in relation to each Group Company, the statutory books, records and registers (d) complete and duly written up-to-date), the delivery common seal, the certificate of incorporation, any certificates of incorporation on change of name and all documents, contracts, licences, agreements, insurance policies, records, papers, correspondence files and books of trading and account of each Group Company;
4.1.5 procure that each Director resigns from his directorships of each Group Company and deliver to the Purchaser his written resignation under seal containing an acknowledgement that he has no claim against such Group Company in respect of the followingbreach of contract, each duly executed and in form and substance satisfactory compensation for loss of office or otherwise howsoever arising from such resignation;
4.1.6 deliver to the Purchaser:-
(i) Purchaser a deed copy of release given all letters and / or email correspondence with AIB in relation to the Company Guarantee;
(ii) a deed change of release by each person holding or being entitled to any Encumbrance over the Shares or any of the assets control of the Company;
(iii) 4.1.7 deliver to the Purchaser a deed letter of waiver by resignation under seal from the Vendor waiving any secretary of each Group Company containing an acknowledgement that he has no claim it or any of its subsidiaries or Associates may have against the Company;
(iv) deeds of waiver by each co-guarantor of the such Group Company in respect of the Company Guaranteebreach of contract, compensation for loss of office or otherwise howsoever arising from such resignation;
(e) the delivery 4.1.8 deliver to the Purchaser confirmation under seal of the statutory books discharge and waiver of any monies owing to any Group Company (duly written up to datewhether then due for payment or not) by the Sellers or the Directors or by any of them or by any Connected Person of any of them;
4.1.9 procure the release of any and the certificate(s) of incorporation all guarantees or indemnities or security given by any Group Company for or on behalf of the CompanySellers or the Directors or any of them or any Connected Person of any of them;
(f) the delivery 4.1.10 deliver to the Purchaser of all current cheque books and deposit books relating to all bank accounts of the CompanyTax Deed duly executed by the Warrantors;
(g) the delivery 4.1.11 deliver to the Purchaser of all documents of title relating to the Properties;
(h) the delivery to the Purchaser of copies of the minutes of the meetings of the boards of directors of the Vendor in the agreed formService Agreements, authorising (in each case) the entry into of the transaction the subject of this Agreement, approving this Agreement and any other agreements or documents to be duly executed pursuant to or in connection with it and appointing the relevant signatory to sign this Agreement and such other agreements and documents on their behalf certified by the company secretary of the Vendor together with (in each case) confirmation, in the agreed form, from the company secretary that the authority conferred remains valid at Completion;
(i) the passing of effective resolutions of the Directors resolving to register the transfers of the Shares subject only to stamping of the share transfers;
(j) (at the cost of the Vendor) the convening and holding of all such meetings, the passing of all such resolutions, the execution and delivery of all such documents and the taking of all other action to the extent reasonably necessary in order to complete the transfer of title to the Shares to the Purchaser free from all Encumbrances and to enable the Purchaser to exercise and receive all rights and benefits attaching to or arising from the Shares;
(k) with effect from Completion, the appointment as directors and secretary of the Company of such person or persons as the Purchaser shall have nominated and the resignation of each of the Directors (except ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ and ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇;
4.1.12 deliver to the Purchaser the duly executed Termination Agreement;
4.1.13 deliver to the Purchaser copies of all bank mandates of each Group Company together with copies of bank statements in relation to all bank accounts as at a date not earlier than the day immediately preceding the Stage 1 Completion Date and all cheque books of each Group Company in use and the cash book balances of each Group Company as at the Stage 1 Completion Date with reconciliation statements reconciling such balances with the aforementioned bank statements;
4.1.14 deliver to the Purchaser appropriate forms to amend any mandates of each Group Company;
4.1.15 deliver to the Purchaser all credit cards in the name of or for the account of each Group Company in the possession of any officer or employee of such Group Company resigning at Stage 1 Completion;
4.1.16 deliver to the Purchaser satisfactory evidence of the adoption of the Constitution (being a shareholder resolution and CRO form G1 duly signed);
4.1.17 procure that a meeting of the board of directors of each Group Company is held at which, inter alia:
(i) in respect of the Company only, the share transfers referred to in clause 4.1.2 are approved (subject only to stamping);
(ii) the entry into of any other documents required to be executed by any Group Company pursuant to the Transaction is approved (including, in respect of the Subsidiary only, the entry into of the Service Agreements);
(iii) such persons as the Purchaser may nominate are appointed as directors and secretary of such Group Company with immediate effect;
(iv) all existing mandates for the operation of bank accounts of such Group Company are revoked and new mandates are approved and adopted giving authority to such persons as the Purchaser may nominate; and
(v) the resignations referred to in clauses 4.1.5 and 4.1.6 are accepted;
4.1.18 deliver to such places as the Purchaser directs all motor vehicles owned by each Group Company which are in the possession of any of the officers or employees of any Group Company resigning on Stage 1 Completion together with the keys and any registration documents and certificates of insurance in respect thereof;
4.1.19 deliver to the Purchaser either a certificate of the kind described in section 980 of the TCA or a letter from the auditors of the Company addressed to the Purchaser (and in a form reasonably satisfactory to Purchaser), confirming that none is required;
4.1.20 deliver to the Purchaser letters of resignation from each of the following family members in agreed form:
(i) ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇;
(ii) and ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇;
(iii) ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇; and
(iv) Zara ▇▇▇▇▇▇▇▇; (together, the secretary of the Company by delivery of a letter under seal from each such Director and the secretary resigning from his offices and from any employment he may have with the Company with effect from Completion and acknowledging that he has no claim against the Company either actual or contingent in respect of any cause matter or thing (statutory or otherwise“Family Resignation Letters”);
(l) the resignation of the auditors of the Company (without compensation for loss of office or any other claim save for proper professional fees for services rendered in respect of their duties as auditors prior to the completion of the 1997 Audit) with effect from completion of the 1997 Audit and the delivery of a statement by them that there are no circumstances connected with their ceasing to hold office which they consider should be brought to the attention of the members or creditors of the Company;
(m) revocation of all existing authorities to the bankers of the Company relating to bank accounts and the grant of authority to such persons as the Purchaser may nominate to operate the same;
(n) that all books, records and files of the Company are in its possession or under its control and where any such are not at the Properties that the Purchaser is given details of their whereabouts and any necessary authority to collect them;
(o) the delivery 4.1.21 deliver to the Purchaser of duly completed evidence to its reasonable satisfaction that the Directors’ Loans have been fully repaid and executed transfers of all shares in the capital of Firstpoint Services Limited not registered in the name of the Company, the statutory books and common seal (if any) of Firstpoint Services Limited and certificates for all of the issued shares in Firstpoint Services Limited.settled; and
4.3 Immediately following fulfilment of all the matters referred to in Clause 4.2 the Purchaser shall:
(a) procure that that part of the Consideration payable in cash on Completion is paid by bankers draft to the Vendor's Solicitors (who are hereby irrevocably authorised to receive that consideration) on behalf of the Vendor;
(b) 4.1.22 deliver to the Vendor's Solicitors a counterpart Purchaser details of its Irish tax reference number including in relation to each of the Tax Covenant duly executed by the Purchaser;
Employee Shareholders, as applicable (c) if requested, and at the Vendor's cost, deliver to the Vendor's Solicitors a legal opinion in a form including evidence reasonably satisfactory to the Vendor as Purchaser allowing it to verify the validity and enforceability accuracy of the guarantee contained within Clause 11 of this Agreement and if such opinion is that such guarantee is not valid and enforceable such amendments shall be made to the guarantee as render it valid and enforceable; and
(dnumber provided) as agent for the Company, repay the Inter-Company Debt by bankers draft to the Vendor's Solicitors (who are hereby irrevocably authorised to receive that payment) on behalf of the Vendor and its subsidiaries and Associates. The delivery of a bankers draft to the Vendor's Solicitors shall be a full and sufficient discharge to the Purchaser for the monies payable on Completion and the Purchaser shall not be concerned to see to the application of any payment by the Purchaser under this Clause 4.3.
4.4 If all the provisions of Clause 4.2 are not complied with in full on Completion the Purchaser may:
(a) defer Completion to a date not more than 28 days after the date specified in Clause 4.1 in which event the provisions of this Clause 4.4 shall apply to Completion as so deferred; or
(b) proceed to Completion so far as practicable without prejudice to its rights under this Agreement or otherwise and so that any provision of Clause 4.2 which may not have been complied with at Completion shall at the sole discretion of the Purchaser be held over to such future date or dates as the Purchaser may in its sole discretion determine; or
(c) terminate this Agreement (save for Clauses 12, 13, 14 and 20, which shall remain in full force and effect) provided that such termination shall not affect the rights and obligations of the parties which have accrued prior to termination and shall not limit or exclude any other rights or remedies of the Purchaser in respect of any failure by the Vendor to comply with the requirements of Clause 4.2 on the due datereasonably require.
4.5 The Vendor shall use all reasonable endeavours to procure compliance with the provisions of Clause 4.2 on any date set for Completion in accordance with this Agreement.
4.6 The Vendor undertakes to and covenants with the Purchaser (for itself and as trustee for the Company) that if, after Completion, it is discovered that the Company had on or before Completion given or undertaken any guarantees, indemnities or similar securities in respect of the obligations or liabilities of any person other than the Company and such guarantees, indemnities or similar securities were not finally and unconditionally released on or before Completion, the Vendor will fully indemnify the Purchaser and the Company and keep each of them fully indemnified on demand against all claims, demands, actions, proceedings, damages, losses, costs, expenses or liabilities suffered or incurred by the Purchaser or the Company under or in connection with such guarantees, indemnities or similar obligations.
Appears in 1 contract
Sources: Share Purchase Agreement (Majesco)
Completion. 4.1 Completion 3.1 The Parties agree that the following matters shall take place at on or prior to the offices date of the Purchaser's Solicitors immediately following the signing of this Agreement or at such other place or time as the Vendor and the Purchaser may agree.
4.2 At Completion the Vendor shall procureCompletion:
(a) Vitol will transfer the delivery B Shares to Grindrod in accordance with the Purchaser of duly completed Share Transfer Agreement and executed transfers of the Shares by other completion steps in the registered holders of the Shares in favour of the Purchaser or its nominees together with valid share certificates representing the Shares and all (if any) other documents required to give good title to the SharesShare Transfer Agreement shall take place;
(b) the delivery to the Purchaser of powers of attorney in the agreed form duly executed by the registered holders execution of the SharesNovation Agreements by Elandra and each Owner;
(c) the delivery Parties shall pay to Elandra the Purchaser of the Tax Covenant duly executed by the VendorNovation Consideration due under each Novation Side Letter;
(d) Elandra shall issue the delivery Agency Letter to Vitol and Grindrod;
(e) the Purchaser Parties shall convene such meetings of the following, members of each duly executed Group Company and in form and substance satisfactory their respective Boards to the Purchaser:-be held as it was necessary to:
(i) a deed of release given in relation appoint two (2) persons nominated by Vitol as A Directors (to the Company Guaranteeextent such appointments were not made upon the incorporation of such Group Company) and two (2) persons nominated by Grindrod as B Directors thereof;
(ii) a deed appoint the secretary of release by each person holding or being entitled to any Encumbrance over the Shares or any of the assets of the that Group Company;
(iii) a deed appoint auditors of waiver by the Vendor waiving any claim it or any of its subsidiaries or Associates may have against the that Group Company;
(iv) deeds appoint principal bankers to that Group Company and arrange for the opening of waiver by each co-guarantor any necessary bank accounts in its name (the requirements of the Company in respect of the Company GuaranteeApproved Finance always being considered);
(ev) if necessary, resolve that the delivery financial year of that Group Company shall end on 31 December in each year; and
(vi) amend the Articles of any Group Company to the Purchaser extent necessary to ensure compliance by it with the terms of the statutory books (duly written up to date) and the certificate(s) of incorporation of the Companythis Agreement;
(f) each Owner shall enter into a commercial shipmanagement agreement with the delivery to the Purchaser Approved Commercial Manager in respect of all current cheque books and deposit books relating to all bank accounts of the Companyits Vessel;
(g) the delivery to Owners shall jointly enter into a Supervision Agreement on materially the Purchaser of all documents of title relating to same terms and conditions as per the Properties;
(h) the delivery to the Purchaser of copies of the minutes of the meetings of the boards of directors of the Vendor in the agreed form, authorising (in each case) the entry into of the transaction the subject of this Agreement, approving this Agreement and any other agreements or documents to be executed pursuant to or in connection with it and appointing the relevant signatory to sign this Agreement and such other agreements and documents on their behalf certified by the company secretary of the Vendor together with (in each case) confirmation, in the agreed form, from the company secretary that the authority conferred remains valid at Completion;
(i) the passing of effective resolutions of the Directors resolving to register the transfers of the Shares subject only to stamping of the share transfers;
(j) (at the cost of the Vendor) the convening and holding of all such meetings, the passing of all such resolutions, the execution and delivery of all such documents and the taking of all other action to the extent reasonably necessary in order to complete the transfer of title to the Shares to the Purchaser free from all Encumbrances and to enable the Purchaser to exercise and receive all rights and benefits attaching to or arising from the Shares;
(k) with effect from Completion, the appointment as directors and secretary of the Company of such person or persons as the Purchaser shall have nominated and the resignation of each of the Directors (except ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ and ▇▇▇▇ ▇▇▇▇▇) and the secretary of the Company by delivery of a letter under seal from each such Director and the secretary resigning from his offices and from any employment he may have Supervision Agreement with the Company with effect from Completion and acknowledging that he has no claim against the Company either actual or contingent Construction Supervisor in respect of any cause matter or thing (statutory or otherwise);
(l) the resignation of the auditors of the Company (without compensation for loss of office or any other claim save for proper professional fees for services rendered in respect of their duties as auditors prior to the completion of the 1997 Audit) with effect from completion of the 1997 Audit and the delivery of a statement by them that there are no circumstances connected with their ceasing to hold office which they consider should be brought to the attention of the members or creditors of the Company;
(m) revocation of all existing authorities to the bankers of the Company relating to bank accounts and the grant of authority to such persons as the Purchaser may nominate to operate the same;
(n) that all books, records and files of the Company are in its possession or under its control and where any such are not at the Properties that the Purchaser is given details of their whereabouts and any necessary authority to collect them;
(o) the delivery to the Purchaser of duly completed and executed transfers of all shares in the capital of Firstpoint Services Limited not registered in the name of the Company, the statutory books and common seal (if any) of Firstpoint Services Limited and certificates for all of the issued shares in Firstpoint Services Limited.
4.3 Immediately following fulfilment of all the matters referred to in Clause 4.2 the Purchaser shall:
(a) procure that that part of the Consideration payable in cash on Completion is paid by bankers draft to the Vendor's Solicitors (who are hereby irrevocably authorised to receive that consideration) on behalf of the Vendor;
(b) deliver to the Vendor's Solicitors a counterpart of the Tax Covenant duly executed by the Purchaser;
(c) if requested, and at the Vendor's cost, deliver to the Vendor's Solicitors a legal opinion in a form reasonably satisfactory to the Vendor as to the validity and enforceability of the guarantee contained within Clause 11 of this Agreement and if such opinion is that such guarantee is not valid and enforceable such amendments shall be made to the guarantee as render it valid and enforceableVessels; and
(dh) as agent for the Company, repay the Inter-Company Debt by bankers draft to the Vendor's Solicitors (who are hereby irrevocably authorised to receive that payment) on behalf relevant owners or disponent owners of each of the Vendor and its subsidiaries and Associates. The delivery of Other Grindrod Vessels shall each enter into a bankers draft to commercial shipmanagement agreement with the Vendor's Solicitors shall be a full and sufficient discharge to the Purchaser for the monies payable on Completion and the Purchaser shall not be concerned to see to the application of any payment by the Purchaser under this Clause 4.3.
4.4 If all the provisions of Clause 4.2 are not complied with in full on Completion the Purchaser may:
(a) defer Completion to a date not more than 28 days after the date specified in Clause 4.1 in which event the provisions of this Clause 4.4 shall apply to Completion as so deferred; or
(b) proceed to Completion so far as practicable without prejudice to its rights under this Agreement or otherwise and so that any provision of Clause 4.2 which may not have been complied with at Completion shall at the sole discretion of the Purchaser be held over to such future date or dates as the Purchaser may in its sole discretion determine; or
(c) terminate this Agreement (save for Clauses 12, 13, 14 and 20, which shall remain in full force and effect) provided that such termination shall not affect the rights and obligations of the parties which have accrued prior to termination and shall not limit or exclude any other rights or remedies of the Purchaser Approved Commercial Manager in respect of any failure by the Vendor to comply with the requirements of Clause 4.2 on the due datethose Other Grindrod Vessels.
4.5 The Vendor 3.2 Following the date of Completion, Vitol shall use all reasonable endeavours to arrange the following matters:
(a) execution of the Novation Agreements by the Builder; and
(b) issuance of each Refund Guarantee in favour of the relevant Owner. Pending the occurrence of the effective date under the Novation Agreements and following payment of the Novation Consideration, Vitol shall procure compliance with the provisions of Clause 4.2 on any date set that Elandra acts as agent for Completion in accordance with this Agreement.
4.6 The Vendor undertakes to and covenants with the Purchaser (for itself and as trustee for the Company) that if, after Completion, it is discovered that the Company had on or before Completion given or undertaken any guarantees, indemnities or similar securities each Owner in respect of the relevant Shipbuilding Contract and related Refund Guarantee in accordance with the Agency Letter.
3.3 Each Party agrees with the other Party that it shall take such steps as lie within its power to procure and ensure that each Group Company performs its respective obligations or liabilities of any person other than under the Company and such guarantees, indemnities or similar securities were not finally and unconditionally released on or before Completion, the Vendor will fully indemnify the Purchaser and the Company and keep each of them fully indemnified on demand against all claims, demands, actions, proceedings, damages, losses, costs, expenses or liabilities suffered or incurred by the Purchaser or the Company under or in connection with such guarantees, indemnities or similar obligationsTransaction Documents to which they are respectively a party.
Appears in 1 contract
Sources: Shareholders’ Agreement (Grindrod Shipping Holdings Ltd.)
Completion. 4.1 (A) Subject to satisfaction of all the Conditions in full (save for any Condition the full compliance or satisfaction of which has been waived by the Purchaser) and the provisions under Clauses 2 and 5, Completion shall take place on the Completion Date at the offices of the Purchaser's Solicitors immediately following the signing of this Agreement Company at 3.00 p.m. or at such other place or and time as shall be mutually agreed by the Vendor parties hereto (time in either case being of the essence) when all (but not part only) of the following business shall be transacted:-
(i) the Vendors shall (so far as it is within their respective powers and capacities so to do) deliver or cause to be delivered to the Purchaser may agree.
4.2 At Completion the Vendor shall procure:Purchaser:-
(a) the delivery to the Purchaser of duly completed and executed transfers certified true copies of the Shares by the registered holders of the Shares documents referred to in favour of the Purchaser or its nominees together with valid share certificates representing the Shares and all Clauses 2(A) (if anyvi) other documents required to give good title to the Shares(ix);
(b) the delivery to the Purchaser Deed of powers of attorney in the agreed form Indemnity duly executed by the registered holders each of the SharesVendors;
(c) evidence to the satisfaction of the Purchaser that the term of the Joint Venture Contract has been validly extended from 20 years to 31 years;
(d) certified true copies of such legal opinions to the satisfaction of the Purchaser (in form and substance) as the Purchaser may request;
(ii) the Vendors (so far as it is within their respective powers and capacities so to do) shall procure that with effect from Completion:
(a) 5 persons nominated by the Purchaser be appointed as new directors of the Company;
(b) the General Manager, Chief Accountant, and such other managerial personnel as nominated by the Purchaser be appointed by the board of directors of the Company in accordance with the meeting rules of the Company;
(c) the delivery to the Purchaser resignation of such number of directors of the Tax Covenant duly executed by Company so that the Vendor;number of directors in the new board of the Company after the appointments referred to in Clause 9(A)(ii)(a) above shall be 8; and
(d) the delivery resignation of such managerial personnel as the Purchaser may request;
(iii) the Vendors shall (so far as it is within their respective powers and capacities so to do) produce evidence to the Purchaser satisfaction of the followingPurchaser that save for those related party transactions which have been disclosed in writing by the Vendors, each duly executed any arrangements and in form agreements between the Vendors and substance satisfactory to the Purchaser:-Company shall be terminated with effect from the Completion Date by mutual agreement between the respective parties thereto without liability on the part of the Company ;
(iiv) a deed of release given in relation the Vendors shall (so far as it is within their respective powers and capacities so to do) return or deliver and cause to be returned or delivered to the Company Guarantee;
(ii) a deed of release by each person holding or being entitled to any Encumbrance over the Shares or any of the assets Purchaser all Corporate Documents of the Company;
(iii) a deed of waiver by the Vendor waiving any claim it or any of its subsidiaries or Associates may have against the Company;
(iv) deeds of waiver by each co-guarantor of the Company in respect of the Company Guarantee;
(ev) the delivery Vendors shall (so far as it is within their respective powers and capacities so to do) deliver and cause to be delivered to the Purchaser written confirmation that the Vendors are not aware of any matter or thing which is in breach of any of the statutory books (duly written up to date) and the certificate(s) of incorporation of the Company;
(f) the delivery to the Purchaser of all current cheque books and deposit books relating to all bank accounts of the Company;
(g) the delivery to the Purchaser of all documents of title relating to the Properties;
(h) the delivery to the Purchaser of copies of the minutes of the meetings of the boards of directors of the Vendor in the agreed form, authorising (in each case) the entry into of the transaction the subject of this Agreement, approving this Agreement and any other agreements or documents to be executed pursuant to or in connection with it and appointing the relevant signatory to sign this Agreement and such other agreements and documents Warranties when they take effect on their behalf certified by the company secretary of the Vendor together with (in each case) confirmation, in the agreed form, from the company secretary that the authority conferred remains valid at Completion;
(ivi) the passing of effective resolutions of the Directors resolving to register the transfers of the Shares subject only to stamping of the share transfers;
(j) (at the cost of the Vendor) the convening and holding of all Vendors shall deliver such meetings, the passing of all such resolutions, the execution and delivery of all such other documents and the taking of all other action to the extent reasonably necessary in order Purchaser as may be required to complete give the transfer of Purchaser good title to the Shares to the Purchaser free from all Encumbrances Sale Capital and to enable the Purchaser or its nominees to exercise and receive all rights and benefits attaching to or arising from become the Shares;owner thereof;and
(kvii) with effect from Completion, the appointment as directors and secretary Purchaser shall procure that the Purchaser's Solicitors shall pay to each of the Company of such person Vendors the Initial Consideration in cash or persons in the manner as the Vendors and the Purchaser shall have agreed and as the Purchaser shall have nominated and been notified in writing at least two Business Days prior to the resignation of Completion Date, such notification shall in any event be binding on each of the Directors (except ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ and ▇▇▇▇ ▇▇▇▇▇) and the secretary of the Company by delivery of a letter under seal from each such Director and the secretary resigning from his offices and from any employment he may have with the Company with effect from Completion and acknowledging that he has no claim against the Company either actual or contingent in respect of any cause matter or thing (statutory or otherwise);Vendors.
(lB) the resignation of the auditors of the Company (without compensation for loss of office or any other claim save for proper professional fees for services rendered in respect of their duties as auditors prior to the completion of the 1997 Audit) with effect from completion of the 1997 Audit and the delivery of a statement by them that there are no circumstances connected with their ceasing to hold office which they consider should be brought to the attention of the members or creditors of the Company;
(m) revocation of all existing authorities to the bankers of the Company relating to bank accounts and the grant of authority to such persons as the Purchaser may nominate to operate the same;
(n) that all books, records and files of the Company are in its possession or under its control and where any such are not at the Properties that the Purchaser is given details of their whereabouts and any necessary authority to collect them;
(o) the delivery to the Purchaser of duly completed and executed transfers of all shares in the capital of Firstpoint Services Limited not registered in the name of the Company, the statutory books and common seal (if any) of Firstpoint Services Limited and certificates for all of the issued shares in Firstpoint Services Limited.
4.3 Immediately following fulfilment of all the matters referred to in Clause 4.2 the Purchaser shall:
(a) procure that that part of the Consideration payable in cash on Completion is paid by bankers draft to the Vendor's Solicitors (who are hereby irrevocably authorised to receive that consideration) on behalf of the Vendor;
(b) deliver to the Vendor's Solicitors a counterpart of the Tax Covenant duly executed by the Purchaser;
(c) if requested, and at the Vendor's cost, deliver to the Vendor's Solicitors a legal opinion in a form reasonably satisfactory to the Vendor as to the validity and enforceability of the guarantee contained within Clause 11 of this Agreement and if such opinion is that such guarantee is not valid and enforceable such amendments shall be made to the guarantee as render it valid and enforceable; and
(d) as agent for the Company, repay the Inter-Company Debt by bankers draft to the Vendor's Solicitors (who are hereby irrevocably authorised to receive that payment) on behalf of the Vendor and its subsidiaries and Associates. The delivery of a bankers draft to the Vendor's Solicitors shall be a full and sufficient discharge to the Purchaser for the monies payable on Completion and the Purchaser shall not be concerned obliged to see complete this Agreement or perform any obligations hereunder unless the Vendors comply fully with the requirements of Clause 9(A). Without prejudice to any other remedies which may be available to the application Purchaser hereunder, if any provision of any payment by the Purchaser under this Clause 4.3.
4.4 If all the provisions of Clause 4.2 are 9 is not complied with in full by the Vendors on the Completion Date, the Purchaser may:may:-
(ai) defer Completion to a date falling not more than 28 days after the date specified in Clause 4.1 in which event original Completion Date (so that the provisions of this Clause 4.4 9 shall apply to the deferred Completion) provided that, time shall be of the essence as regards the deferred Completion as so deferredand if Completion is not effected on such deferred date, the Purchaser may rescind this Agreement; or
(bii) proceed to Completion so far as practicable (but without prejudice to its the Purchaser's rights under this Agreement or otherwise and so that any provision of Clause 4.2 which may hereunder) insofar as the Vendors shall not have been complied with at Completion shall at the sole discretion of the Purchaser be held over to such future date or dates as the Purchaser may in its sole discretion determinetheir obligations hereunder; or
(c) terminate this Agreement (save for Clauses 12, 13, 14 and 20, which shall remain in full force and effect) provided that such termination shall not affect the rights and obligations of the parties which have accrued prior to termination and shall not limit or exclude any other rights or remedies of the Purchaser in respect of any failure by the Vendor to comply with the requirements of Clause 4.2 on the due date.
4.5 The Vendor shall use all reasonable endeavours to procure compliance with the provisions of Clause 4.2 on any date set for Completion in accordance with this Agreement.
4.6 The Vendor undertakes to and covenants with the Purchaser (for itself and as trustee for the Company) that if, after Completion, it is discovered that the Company had on or before Completion given or undertaken any guarantees, indemnities or similar securities in respect of the obligations or liabilities of any person other than the Company and such guarantees, indemnities or similar securities were not finally and unconditionally released on or before Completion, the Vendor will fully indemnify the Purchaser and the Company and keep each of them fully indemnified on demand against all claims, demands, actions, proceedings, damages, losses, costs, expenses or liabilities suffered or incurred by the Purchaser or the Company under or in connection with such guarantees, indemnities or similar obligations.
Appears in 1 contract
Completion. 4.1 (A) Subject to satisfaction of all the Conditions in full (save for any Condition the full compliance or satisfaction of which has been waived by the Purchaser) and the provisions under Clauses 2 and 5, Completion shall take place on the Completion Date at the offices of the Purchaser's Solicitors immediately following the signing of this Agreement Company at 3.00 p.m. or at such other place or and time as shall be mutually agreed by the Vendor parties hereto (time in either case being of the essence) when all (but not part only) of the following business shall be transacted:-
(i) the Vendors shall (so far as it is within their respective powers and capacities so to do) deliver or cause to be delivered to the Purchaser may agree.
4.2 At Completion the Vendor shall procure:Purchaser:-
(a) the delivery to the Purchaser of duly completed and executed transfers certified true copies of the Shares by the registered holders of the Shares documents referred to in favour of the Purchaser or its nominees together with valid share certificates representing the Shares and all Clauses 2(A) (if anyvi) other documents required to give good title to the Shares(ix);
(b) the delivery to the Purchaser Deed of powers of attorney in the agreed form Indemnity duly executed by the registered holders each of the SharesVendors;
(c) evidence to the satisfaction of the Purchaser that the term of the Joint Venture Contract has been validly extended from 20 years to 31 years;
(d) certified true copies of such legal opinions to the satisfaction of the Purchaser (in form and substance) as the Purchaser may request;
(ii) the Vendors (so far as it is within their respective powers and capacities so to do) shall procure that with effect from Completion:
(a) 5 persons nominated by the Purchaser be appointed as new directors of the Company;
(b) the General Manager, Chief Accountant, and such other managerial personnel as nominated by the Purchaser be appointed by the board of directors of the Company in accordance with the meeting rules of the Company;
(c) the delivery to the Purchaser resignation of such number of directors of the Tax Covenant duly executed by Company so that the Vendor;number of directors in the new board of the Company after the appointments referred to in Clause 9(A)(ii)(a) above shall be 8; and
(d) the delivery resignation of such managerial personnel as the Purchaser may request;
(iii) the Vendors shall (so far as it is within their respective powers and capacities so to do) produce evidence to the Purchaser satisfaction of the followingPurchaser that save for those related party transactions which have been disclosed in writing by the Vendors, each duly executed any arrangements and in form agreements between the Vendors and substance satisfactory to the Purchaser:-Company shall be terminated with effect from the Completion Date by mutual agreement between the respective parties thereto without liability on the part of the Company ;
(iiv) a deed of release given in relation the Vendors shall (so far as it is within their respective powers and capacities so to do) return or deliver and cause to be returned or delivered to the Company Guarantee;
(ii) a deed of release by each person holding or being entitled to any Encumbrance over the Shares or any of the assets Purchaser all Corporate Documents of the Company;
(iii) a deed of waiver by the Vendor waiving any claim it or any of its subsidiaries or Associates may have against the Company;
(iv) deeds of waiver by each co-guarantor of the Company in respect of the Company Guarantee;
(ev) the delivery Vendors shall (so far as it is within their respective powers and capacities so to do) deliver and cause to be delivered to the Purchaser written confirmation that the Vendors are not aware of any matter or thing which is in breach of any of the statutory books (duly written up to date) and the certificate(s) of incorporation of the Company;
(f) the delivery to the Purchaser of all current cheque books and deposit books relating to all bank accounts of the Company;
(g) the delivery to the Purchaser of all documents of title relating to the Properties;
(h) the delivery to the Purchaser of copies of the minutes of the meetings of the boards of directors of the Vendor in the agreed form, authorising (in each case) the entry into of the transaction the subject of this Agreement, approving this Agreement and any other agreements or documents to be executed pursuant to or in connection with it and appointing the relevant signatory to sign this Agreement and such other agreements and documents Warranties when they take effect on their behalf certified by the company secretary of the Vendor together with (in each case) confirmation, in the agreed form, from the company secretary that the authority conferred remains valid at Completion;
(ivi) the passing of effective resolutions of the Directors resolving to register the transfers of the Shares subject only to stamping of the share transfers;
(j) (at the cost of the Vendor) the convening and holding of all Vendors shall deliver such meetings, the passing of all such resolutions, the execution and delivery of all such other documents and the taking of all other action to the extent reasonably necessary in order Purchaser as may be required to complete give the transfer of Purchaser good title to the Shares to the Purchaser free from all Encumbrances Sale Capital and to enable the Purchaser or its nominees to exercise and receive all rights and benefits attaching to or arising from become the Shares;owner thereof; and
(kvii) with effect from Completion, the appointment as directors and secretary Purchaser shall procure that the Purchaser's Solicitors shall pay to each of the Company of such person Vendors the Initial Consideration in cash or persons in the manner as the Vendors and the Purchaser shall have agreed and as the Purchaser shall have nominated and been notified in writing at least two Business Days prior to the resignation of Completion Date, such notification shall in any event be binding on each of the Directors (except ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ and ▇▇▇▇ ▇▇▇▇▇) and the secretary of the Company by delivery of a letter under seal from each such Director and the secretary resigning from his offices and from any employment he may have with the Company with effect from Completion and acknowledging that he has no claim against the Company either actual or contingent in respect of any cause matter or thing (statutory or otherwise);Vendors.
(lB) the resignation of the auditors of the Company (without compensation for loss of office or any other claim save for proper professional fees for services rendered in respect of their duties as auditors prior to the completion of the 1997 Audit) with effect from completion of the 1997 Audit and the delivery of a statement by them that there are no circumstances connected with their ceasing to hold office which they consider should be brought to the attention of the members or creditors of the Company;
(m) revocation of all existing authorities to the bankers of the Company relating to bank accounts and the grant of authority to such persons as the Purchaser may nominate to operate the same;
(n) that all books, records and files of the Company are in its possession or under its control and where any such are not at the Properties that the Purchaser is given details of their whereabouts and any necessary authority to collect them;
(o) the delivery to the Purchaser of duly completed and executed transfers of all shares in the capital of Firstpoint Services Limited not registered in the name of the Company, the statutory books and common seal (if any) of Firstpoint Services Limited and certificates for all of the issued shares in Firstpoint Services Limited.
4.3 Immediately following fulfilment of all the matters referred to in Clause 4.2 the Purchaser shall:
(a) procure that that part of the Consideration payable in cash on Completion is paid by bankers draft to the Vendor's Solicitors (who are hereby irrevocably authorised to receive that consideration) on behalf of the Vendor;
(b) deliver to the Vendor's Solicitors a counterpart of the Tax Covenant duly executed by the Purchaser;
(c) if requested, and at the Vendor's cost, deliver to the Vendor's Solicitors a legal opinion in a form reasonably satisfactory to the Vendor as to the validity and enforceability of the guarantee contained within Clause 11 of this Agreement and if such opinion is that such guarantee is not valid and enforceable such amendments shall be made to the guarantee as render it valid and enforceable; and
(d) as agent for the Company, repay the Inter-Company Debt by bankers draft to the Vendor's Solicitors (who are hereby irrevocably authorised to receive that payment) on behalf of the Vendor and its subsidiaries and Associates. The delivery of a bankers draft to the Vendor's Solicitors shall be a full and sufficient discharge to the Purchaser for the monies payable on Completion and the Purchaser shall not be concerned obliged to see complete this Agreement or perform any obligations hereunder unless the Vendors comply fully with the requirements of Clause 9(A). Without prejudice to any other remedies which may be available to the application Purchaser hereunder, if any provision of any payment by the Purchaser under this Clause 4.3.
4.4 If all the provisions of Clause 4.2 are 9 is not complied with in full by the Vendors on the Completion Date, the Purchaser may:may:-
(ai) defer Completion to a date falling not more than 28 days after the date specified in Clause 4.1 in which event original Completion Date (so that the provisions of this Clause 4.4 9 shall apply to the deferred Completion) provided that, time shall be of the essence as regards the deferred Completion as so deferredand if Completion is not effected on such deferred date, the Purchaser may rescind this Agreement; or
(bii) proceed to Completion so far as practicable (but without prejudice to its the Purchaser's rights under this Agreement or otherwise and so that any provision of Clause 4.2 which may hereunder) insofar as the Vendors shall not have been complied with at Completion shall at the sole discretion of the Purchaser be held over to such future date or dates as the Purchaser may in its sole discretion determinetheir obligations hereunder; or
(c) terminate this Agreement (save for Clauses 12, 13, 14 and 20, which shall remain in full force and effect) provided that such termination shall not affect the rights and obligations of the parties which have accrued prior to termination and shall not limit or exclude any other rights or remedies of the Purchaser in respect of any failure by the Vendor to comply with the requirements of Clause 4.2 on the due date.
4.5 The Vendor shall use all reasonable endeavours to procure compliance with the provisions of Clause 4.2 on any date set for Completion in accordance with this Agreement.
4.6 The Vendor undertakes to and covenants with the Purchaser (for itself and as trustee for the Company) that if, after Completion, it is discovered that the Company had on or before Completion given or undertaken any guarantees, indemnities or similar securities in respect of the obligations or liabilities of any person other than the Company and such guarantees, indemnities or similar securities were not finally and unconditionally released on or before Completion, the Vendor will fully indemnify the Purchaser and the Company and keep each of them fully indemnified on demand against all claims, demands, actions, proceedings, damages, losses, costs, expenses or liabilities suffered or incurred by the Purchaser or the Company under or in connection with such guarantees, indemnities or similar obligations.
Appears in 1 contract
Completion. 4.1 SUBJECT to the provisions of this Agreement Completion shall take place at the offices of the Purchaser's Solicitors immediately following the signing exchange of this Agreement when and where:-
4.1 the Vendors will deliver or at such other place or time procure the delivery (where appropriate as agent for the Vendor and Company) to the Purchaser may agree.
4.2 At Completion the Vendor shall procure:of:-
(a) the delivery to the Purchaser of duly completed and executed transfers of the Shares by the registered holders of the Sale Shares in favour of the Purchaser or its nominees together with valid the relevant share certificates representing and any power of attorney under which any such transfers are executed on behalf of any of the Shares and all (if any) other documents required to give good title to the SharesVendors;
(b) the delivery to the Purchaser letters of powers of attorney resignation in the agreed form duly Agreed Form executed by the registered holders of the Shares;
(c) the delivery to the Purchaser of the Tax Covenant duly executed by the Vendor;
(d) the delivery to the Purchaser of the following, each duly executed and in form and substance satisfactory to the Purchaser:-
(i) as a deed of release given in relation to the Company Guarantee;
(ii) a deed of release by each person holding or being entitled to any Encumbrance over the Shares or any of the assets of the Company;
(iii) a deed of waiver by the Vendor waiving any claim it or any of its subsidiaries or Associates may have against the Company;
(iv) deeds of waiver by each co-guarantor of the Company in respect of the Company Guarantee;
(e) the delivery to the Purchaser of the statutory books (duly written up to date) and the certificate(s) of incorporation of the Company;
(f) the delivery to the Purchaser of all current cheque books and deposit books relating to all bank accounts of the Company;
(g) the delivery to the Purchaser of all documents of title relating to the Properties;
(h) the delivery to the Purchaser of copies of the minutes of the meetings of the boards of directors of the Vendor in the agreed form, authorising (in each case) the entry into of the transaction the subject of this Agreement, approving this Agreement and any other agreements or documents to be executed pursuant to or in connection with it and appointing the relevant signatory to sign this Agreement and such other agreements and documents on their behalf certified by the company secretary of the Vendor together with (in each case) confirmation, in the agreed form, Deed from the company secretary that the authority conferred remains valid at Completion;
(i) the passing of effective resolutions of the Directors resolving to register the transfers of the Shares subject only to stamping of the share transfers;
(j) (at the cost of the Vendor) the convening and holding of all such meetings, the passing of all such resolutions, the execution and delivery of all such documents and the taking of all other action to the extent reasonably necessary in order to complete the transfer of title to the Shares to the Purchaser free from all Encumbrances and to enable the Purchaser to exercise and receive all rights and benefits attaching to or arising from the Shares;
(k) with effect from Completion, the appointment as directors and secretary of the Company of such person or persons as the Purchaser shall have nominated and the resignation of each of the Directors (except ▇▇▇▇▇ ▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇N E V Martensson, P E N Martensson, P A ▇▇▇▇▇▇ and ▇▇▇▇ ▇▇▇▇▇) and the secretary of the Company by delivery of a letter under seal from S Acland as Directors incorporating in each such Director and the secretary resigning from his offices and from any employment he may have with the Company with effect from Completion and acknowledging case an acknowledgement that he has no claim whatsoever against the Company;
(c) acknowledgements in the Agreed Form executed as a Deed by each of the Vendors confirming that they have no claim against the Company either actual on any account whatsoever and that there are no arrangements outstanding under which the Company has or contingent could have any obligation to them other than in relation to those Vendors who are continuing in office in respect of any cause matter or thing (statutory or otherwise)ongoing obligations in relation to that office;
(ld) powers of attorney in the resignation Agreed Form executed by each of the auditors Vendors in favour of the Purchaser empowering the Purchaser to exercise the Vendors' rights as shareholders of the Company (without compensation for loss of office or any other claim save for proper professional fees for services rendered in respect of their duties as auditors during the period prior to the completion stamping and registration of the 1997 Audittransfers referred to in paragraph (a) with effect from completion above;
(e) the duly executed Cancellation Agreements;
(f) the Disclosure Letter duly executed by the Warrantors.
4.2 the Vendors will deliver to the Purchaser as agents for the Company or otherwise make available at the Company's registered office all papers documents records and accounts belonging to or in the possession or under the control of the 1997 Audit Company including:-
(a) the statutory and minute books of the Company duly made up-to-date and the delivery common seal and certificate of a statement by them that there are no circumstances connected incorporation thereof together with their ceasing to hold office which they consider should be brought to the attention up-to-date prints of the members memorandum and articles of association and the share certificate book together with all unissued or creditors cancelled share certificates of the Company;
(mb) revocation all books of account or reference as to customers and other records and all existing authorities insurance policies in any way relating to or concerning the bankers business of the Company;
(c) all deeds and documents of title to all assets and properties including the Property of the Company;
(d) the bank cheque books and paying-in books of the Company relating to and current statements of all its bank accounts all fuel agency cards and other credit cards issued to any Vendors in their capacity as Directors or Employees of the grant of authority to Company who are not continuing in such persons as the Purchaser may nominate to operate the samecapacity after Completion;
(ne) that all booksemployment and PAYE records, VAT records and files service agreements or hire purchase leasing or other agreements of any kind entered into by the Company.
(f) certified copies of board resolutions of the Company are in its possession or under its control and where any such are not at the Properties that Agreed Form
(i) regarding the Purchaser is given details acceptance of their whereabouts and any necessary authority the resignation from office of those persons referred to collect themin clause 4.1.(b) above;
(oii) approving (subject only to proper stamping) the delivery transfers of the Sale Shares;
(iii) approving the registration of the Purchaser or its nominees as members of the Company subject to the Purchaser production of duly stamped and completed and executed transfers of stock transfer forms;
(iv) amending all shares relevant bank mandates in accordance with the capital of Firstpoint Services Limited not registered in the name of the Company, the statutory books and common seal (if any) of Firstpoint Services Limited and certificates for all of the issued shares in Firstpoint Services Limited.Purchaser's instructions;
4.3 Immediately following fulfilment of all Subject to the matters referred to in Clause 4.2 above the Purchaser shall:will:-
(a) procure that that part the delivery by way of telegraphic transfer to the Vendors' Solicitors for the account of the Vendors of the aggregate amount of the Cash Consideration payable in cash on Completion is paid (the Vendors' Solicitors are authorised by bankers draft to the Vendor's Solicitors (who are hereby irrevocably authorised Vendors to receive that consideration) on behalf payment of the Vendor;
(b) deliver to Cash Consideration on the Vendor's Solicitors a counterpart of Vendors' behalf and the Tax Covenant duly executed receipt by the Purchaser;
(c) if requested, and at the Vendor's cost, deliver to the Vendor's Solicitors a legal opinion in a form reasonably satisfactory to the Vendor as to the validity and enforceability of the guarantee contained within Clause 11 of this Agreement and if such opinion is that such guarantee is not valid and enforceable such amendments shall be made to the guarantee as render it valid and enforceable; and
(d) as agent for the Company, repay the Inter-Company Debt by bankers draft to the Vendor's Solicitors (who are hereby irrevocably authorised to receive that payment) on behalf of the Vendor and its subsidiaries and Associates. The delivery of a bankers draft to the Vendor's Vendors' Solicitors shall be a full good and sufficient discharge to the Purchaser for the monies payable on Completion and the Purchaser shall not be concerned to see to the application of any payment by the Purchaser under this Clause 4.3.
4.4 If all the provisions of Clause 4.2 are not complied with in full on Completion the Purchaser may:
(a) defer Completion to a date not more than 28 days after the date specified in Clause 4.1 in which event the provisions of this Clause 4.4 shall apply to Completion as so deferredPurchaser); orand
(b) proceed allot and issue the Consideration Shares in accordance with clause 3.1(b) and appropriate share certificates to Completion so far as practicable without prejudice to its rights under this Agreement or otherwise and so that any provision of Clause 4.2 which may not have been complied with at Completion shall at the sole discretion of the Purchaser be held over to such future date or dates as the Purchaser may in its sole discretion determinerelevant Vendors; orand
(c) terminate this Agreement (save deliver to the relevant Optionholders option certificates for Clauses 12, 13, 14 the options granted to them as referred to in the Cancellation Agreements and 20, which shall remain in full force and effect) provided that such termination shall not affect procure the rights and obligations delivery by way of telegraphic transfer to the Vendors' Solicitors for the account of the parties which have accrued prior to termination and shall not limit or exclude any other rights or remedies Vendors of the Purchaser in respect of any failure by the Vendor to comply with the requirements of Clause 4.2 on the due date.
4.5 The Vendor shall use all reasonable endeavours to procure compliance with the provisions of Clause 4.2 on any date set for Completion in accordance with this Agreement.
4.6 The Vendor undertakes to and covenants with the Purchaser (for itself and as trustee for the Company) that if, after Completion, it is discovered that the Company had on or before Completion given or undertaken any guarantees, indemnities or similar securities in respect aggregate amount of the obligations or liabilities cash entitlement (net of any person other than tax) of the Company and such guarantees, indemnities or similar securities were not finally and unconditionally released on or before Completion, the Vendor will fully indemnify the Purchaser and the Company and keep each of them fully indemnified on demand against all claims, demands, actions, proceedings, damages, losses, costs, expenses or liabilities suffered or incurred by the Purchaser or the Company under or in connection with such guarantees, indemnities or similar obligationsOptionholders.
Appears in 1 contract
Completion. 4.1 Completion shall take place at the offices 5.1 The sale and purchase of the Purchaser's Solicitors immediately following Sale Shares shall be completed on or before the signing expiry of this Agreement thirty (30) days from the date the last of the approvals or at such other place conditions stated in Clause 4 have been obtained or time as fulfilled ("COMPLETION DATE") in the Vendor and manner hereinafter set forth:-
5.1.1 the Purchaser may agree.
4.2 At Completion Vendors shall deliver or procure the Vendor shall procure:delivery to NHancement of the following:-
(a) a copy of the delivery resolution of the Board of Directors of the Company (duly certified by a Director or the company Secretary of the Company) approving the transfer of the Sale Shares from the vendors to NHancement or its nominee(s) together with signed copies of the waiver(s) of pre-emption rights of any person whomsoever to the Purchaser Sale Shares or any part thereof it such waiver(s) are required under the Articles of duly completed and executed transfers Association of the Shares by Company to enable NHancement or its nominee(s) to be registered as the registered holders transferee(s) of the Shares in favour of the Purchaser or its nominees together with valid share certificates representing the Shares and all (if any) other documents required to give good title to the Sale Shares;
(b) the delivery relevant share certificates relating to the Purchaser of powers of attorney in the agreed form Sale Shares and duly executed by the registered holders valid and registrable transfers in respect thereof in favour of the SharesNhancement or its nominee(s);
(c) the delivery to the Purchaser a copy of the Tax Covenant duly executed by the Vendor;
(d) the delivery to the Purchaser resolutions of the following, each duly executed and in form and substance satisfactory to the Purchaser:-
(i) a deed Board of release given in relation to Directors of the Company Guarantee;
(ii) duly certified by a deed of release by each person holding Director or being entitled to any Encumbrance over the Shares or any Secretary of the assets Company) approving the appointment of four (4) nominees of Nhancement as directors of the Company;
(iiid) a deed letters of waiver by the Vendor waiving any claim it or any resignation of its subsidiaries or Associates may have against the Company;
(iv) deeds of waiver by each co-guarantor all directors of the Company in respect other than the directors nominated by Nhan▇▇▇▇▇▇ ▇▇ take effect immediately and without any compensation for loss of the Company Guaranteeoffice;
(e) the delivery to the Purchaser letters of resignation of the statutory books (duly written up to date) Auditors and the certificate(s) of incorporation of the Company;Company Secretary; 8
(f) the delivery common seal and all assets and documents belonging to the Purchaser of all current cheque books and deposit books relating to all bank accounts of the Company;
(g) employment agreements between the delivery persons whose names appear below and the Company in a form acceptable to NHancement whereby the Purchaser of all documents of title relating said persons agree to be employed by the Properties;
(h) the delivery to the Purchaser of copies of the minutes of the meetings of the boards of directors of the Vendor Company in the agreed form, authorising designation which appears against their respective names for not less than two (in each case2) years after the entry into of the transaction the subject of this Agreement, approving this Agreement and any other agreements or documents to be executed pursuant to or in connection with it and appointing the relevant signatory to sign this Agreement and such other agreements and documents on their behalf certified by the company secretary of the Vendor together with (in each case) confirmation, in the agreed form, from the company secretary that the authority conferred remains valid at Completion;
(i) the passing of effective resolutions of the Directors resolving to register the transfers of the Shares subject only to stamping of the share transfers;
(j) (at the cost of the Vendor) the convening and holding of all such meetings, the passing of all such resolutions, the execution and delivery of all such documents and the taking of all other action to the extent reasonably necessary in order to complete the transfer of title to the Shares to the Purchaser free from all Encumbrances and to enable the Purchaser to exercise and receive all rights and benefits attaching to or arising from the Shares;
(k) with effect from Completion, the appointment as directors and secretary of the Company of such person or persons as the Purchaser shall have nominated and the resignation of each of the Directors (except Completion Date. Name Designation ---- ----------- Goh ▇▇▇ ▇▇▇▇▇ Managing Director Ng K▇▇ ▇▇▇ Technical Manager Man ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇Technical Manager Ahil▇▇ ▇▇▇▇▇▇▇▇ and ▇▇▇▇ Divisional Manager, Sales; s/o S.L. ▇▇▇▇▇▇
(h) a market stand-off agreement signed by each Vendor substantially in a form acceptable to NHancement;
(i) a Closing Certificate signed by each Vendor whereby the Vendors confirm that the representatives, warranties and covenants provided by them under this Agreement remain true and accurate as at the secretary Completion Date;
(j) a Closing Certificate signed by the Managing Director of the Company by delivery of a letter under seal from each such Director confirming that the representations and warranties set out in Clauses 6.1.1 to 6.1.28 hereof remain true and accurate, and the secretary resigning from his offices and from any employment he may have with the Company with effect from Completion and acknowledging that he has no claim against the Company either actual or contingent undertakings set out in respect of any cause matter or thing (statutory or otherwise);
(l) the resignation of the auditors of the Company (without compensation for loss of office or any other claim save for proper professional fees for services rendered in respect of their duties as auditors prior Clauses 7.1.1 to the completion of the 1997 Audit) with effect from completion of the 1997 Audit and the delivery of a statement by them that there are no circumstances connected with their ceasing to hold office which they consider should be brought to the attention of the members or creditors of the Company;
(m) revocation of all existing authorities to the bankers of the Company relating to bank accounts and the grant of authority to such persons as the Purchaser may nominate to operate the same;
(n) that all books, records and files of the Company are in its possession or under its control and where any such are not at the Properties that the Purchaser is given details of their whereabouts and any necessary authority to collect them;
(o) the delivery to the Purchaser of duly completed and executed transfers of all shares in the capital of Firstpoint Services Limited not registered in the name of the Company, the statutory books and common seal (if any) of Firstpoint Services Limited and certificates for all of the issued shares in Firstpoint Services Limited7.
4.3 Immediately following fulfilment of all the matters referred to in Clause 4.2 the Purchaser shall:
(a) procure that that part of the Consideration payable in cash on Completion is paid by bankers draft to the Vendor's Solicitors (who are hereby irrevocably authorised to receive that consideration) on behalf of the Vendor;
(b) deliver to the Vendor's Solicitors a counterpart of the Tax Covenant duly executed by the Purchaser;
(c) if requested, and at the Vendor's cost, deliver to the Vendor's Solicitors a legal opinion in a form reasonably satisfactory to the Vendor as to the validity and enforceability of the guarantee contained within Clause 11 of this Agreement and if such opinion is that such guarantee is not valid and enforceable such amendments shall be made to the guarantee as render it valid and enforceable; and
(d) as agent for the Company, repay the Inter-Company Debt by bankers draft to the Vendor's Solicitors (who are hereby irrevocably authorised to receive that payment) on behalf of the Vendor and its subsidiaries and Associates. The delivery of a bankers draft to the Vendor's Solicitors shall be a full and sufficient discharge to the Purchaser for the monies payable on Completion and the Purchaser shall not be concerned to see to the application of any payment by the Purchaser under this Clause 4.3.
4.4 If all the provisions of Clause 4.2 are not complied with in full on Completion the Purchaser may:
(a) defer Completion to a date not more than 28 days after the date specified in Clause 4.1 in which event the provisions of this Clause 4.4 shall apply to Completion as so deferred; or
(b) proceed to Completion so far as practicable without prejudice to its rights under this Agreement or otherwise and so that any provision of Clause 4.2 which may not have been complied with at Completion shall at the sole discretion of the Purchaser be held over to such future date or dates as the Purchaser may in its sole discretion determine; or
(c) terminate this Agreement (save for Clauses 12, 13, 14 and 20, which shall remain in full force and effect) provided that such termination shall not affect the rights and obligations of the parties which have accrued prior to termination and shall not limit or exclude any other rights or remedies of the Purchaser in respect of any failure by the Vendor to comply with the requirements of Clause 4.2 on the due date.
4.5 The Vendor shall use all reasonable endeavours to procure compliance with the provisions of Clause 4.2 on any date set for Completion in accordance with this Agreement.
4.6 The Vendor undertakes to and covenants with the Purchaser (for itself and as trustee for the Company) that if, after Completion, it is discovered that the Company had on or before Completion given or undertaken any guarantees, indemnities or similar securities in respect of the obligations or liabilities of any person other than the Company and such guarantees, indemnities or similar securities were not finally and unconditionally released on or before Completion, the Vendor will fully indemnify the Purchaser and the Company and keep each of them fully indemnified on demand against all claims, demands, actions, proceedings, damages, losses, costs, expenses or liabilities suffered or incurred by the Purchaser or the Company under or in connection with such guarantees, indemnities or similar obligations.
Appears in 1 contract
Sources: Sale of Shares Agreement (Nhancement Technologies Inc)
Completion. 4.1 Completion shall take place in accordance with this clause 4 at the offices of the Purchaser's Solicitors immediately following the signing of this Agreement or at such other place or time as the Vendor and the Purchaser may agree.
4.2 At Completion the Vendor shall procure:
(a) the delivery to the Purchaser of duly completed and executed transfers of the Shares by the registered holders of the Shares in favour of the Purchaser or its nominees together with valid share certificates representing the Shares and all (if any) other documents required to give good title to the Shares;
(b) the delivery to the Purchaser of powers of attorney in the agreed form duly executed by the registered holders of the Shares;
(c) the delivery to the Purchaser of the Tax Covenant duly executed by the Vendor;
(d) the delivery to the Purchaser of the following, each duly executed and in form and substance satisfactory to the Purchaser:-
(i) a deed of release given in relation to the Company Guarantee;
(ii) a deed of release by each person holding or being entitled to any Encumbrance over the Shares or any of the assets of the Company;
(iii) a deed of waiver by the Vendor waiving any claim it or any of its subsidiaries or Associates may have against the Company;
(iv) deeds of waiver by each co-guarantor of the Company in respect of the Company Guarantee;
(e) the delivery to the Purchaser of the statutory books (duly written up to date) and the certificate(s) of incorporation of the Company;
(f) the delivery to the Purchaser of all current cheque books and deposit books relating to all bank accounts of the Company;
(g) the delivery to the Purchaser of all documents of title relating to the Properties;
(h) the delivery to the Purchaser of copies of the minutes of the meetings of the boards of directors of the Vendor in the agreed form, authorising (in each case) the entry into of the transaction the subject of this Agreement, approving this Agreement and any other agreements or documents to be executed pursuant to or in connection with it and appointing the relevant signatory to sign this Agreement and such other agreements and documents on their behalf certified by the company secretary of the Vendor together with (in each case) confirmation, in the agreed form, from the company secretary that the authority conferred remains valid at Completion;
(i) the passing of effective resolutions of the Directors resolving to register the transfers of the Shares subject only to stamping of the share transfers;
(j) (at the cost of the Vendor) the convening and holding of all such meetings, the passing of all such resolutions, the execution and delivery of all such documents and the taking of all other action to the extent reasonably necessary in order to complete the transfer of title to the Shares to the Purchaser free from all Encumbrances and to enable the Purchaser to exercise and receive all rights and benefits attaching to or arising from the Shares;
(k) with effect from Completion, the appointment as directors and secretary of the Company of such person or persons as the Purchaser shall have nominated and the resignation of each of the Directors (except ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ and ▇▇▇▇ ▇▇▇▇▇Chance, London on the tenth Business Day following the satisfaction of all the conditions set out in clause 3.1 (or such other day as the parties may agree) and provided that such conditions are satisfied prior to the secretary Long Stop Date.
4.2 At Completion the Sellers shall give to the Buyers each item specified in schedule 1.
4.3 The Sellers shall procure that at Completion:
4.3.1 the Company's directors hold a meeting of the board of directors of the Company by delivery at which the directors:
(a) vote in favour of a letter under seal from each such Director and the secretary resigning from his offices and from any employment he may have with registration of the Buyers or their respective nominee(s) as member(s) of the Company with effect from Completion and acknowledging that he has no claim against the Company either actual or contingent in respect of any cause matter or thing the Shares (statutory or otherwisesubject to the production of properly stamped transfers);
(lb) do all such acts and things, if any, as may be necessary to give effect to the resignation transfer of the auditors of the Company (without compensation for loss of office or any other claim save for proper professional fees for services rendered in respect of their duties as auditors prior to the completion of the 1997 Audit) with effect from completion of the 1997 Audit IFC Debt and the delivery of a statement by them that there are no circumstances connected with their ceasing to hold office which they consider should be brought to the attention of the members or creditors DEG Debt on behalf of the Company;
(mc) revocation of all existing authorities if required by the Buyers (such requirement to be notified by the Buyers to the bankers Representative at least 21 days before Completion), change the Company's registered office to a place nominated by the Buyers;
(d) change the Company's accounting reference date to December 31;
(e) if required by the Buyers (such requirement to be notified by the Buyers to the Representative at least 21 days before Completion), accept the resignation of the Company's existing directors, auditors and secretary with effect from the end of the meeting;
(f) appoint persons nominated by the Buyers as directors, secretary and auditors of the Company relating to bank accounts and with effect from the grant end of authority to such persons as the Purchaser may nominate to operate the samemeeting;
(ng) that all bookswith effect from the end of the meeting, records and files authorise the secretary to notify the specimen signatures of the new officers of the Company are in its possession or under its control and where any such are not at connection with each existing mandate given by the Properties that Company for the Purchaser is given details of their whereabouts and any necessary authority to collect them;
(o) the delivery to the Purchaser of duly completed and executed transfers of all shares in the capital of Firstpoint Services Limited not registered in the name operation of the Company, 's Bank Accounts; and
(h) terminate with effect from the statutory books and common seal (if any) date of Firstpoint Services Limited and certificates for all Completion the contracts of the issued shares in Firstpoint Services Limited.
4.3 Immediately following fulfilment employment of all the matters referred to in Clause 4.2 the Purchaser shall:
Company's employees (a) procure that that part except those of the Consideration payable in cash on Completion is paid by bankers draft Company's expatriate staff agreed between the Sellers and the Buyers prior to the Vendor's Solicitors (who are hereby irrevocably authorised execution of this Agreement), give effect to receive that consideration) on behalf the Redundancy Programme and the making of the Vendor;Redundancy Payment.
(b) deliver 4.3.2 the Rehabilitation Amount is standing to the Vendor's Solicitors a counterpart credit of the Tax Covenant duly executed by the Purchaser;Rehabilitation Reserve Account; and
(c) if requested, and at the Vendor's cost, deliver to the Vendor's Solicitors a legal opinion in a form reasonably satisfactory to the Vendor as to the validity and enforceability of the guarantee contained within Clause 11 of this Agreement and if such opinion is that such guarantee is not valid and enforceable such amendments shall 4.3.3 all Redundancy Payments will be made to the guarantee employees terminated (as render it valid referred to in clause 4.3.2(h)).
4.4 At Completion the Sellers shall be paid:
4.4.1 the first tranche of the Initial Purchase Price for the IFC Debt and enforceablethe DEG Debt of US$2,000,000 by drawing on the US$2m L/C in accordance with clause 5.1.2 below;
4.4.2 the second tranche of the Initial Purchase Price for the IFC Debt and the DEG Debt of US$10,000,000 in accordance with clause 5.1.5 below; and
(d) as agent 4.4.3 the third tranche of the Initial Purchase Price for the Company, repay the Inter-Company Debt by bankers draft to the Vendor's Solicitors (who are hereby irrevocably authorised to receive that payment) on behalf Shares of the Vendor and its subsidiaries and Associates. The delivery of a bankers draft to the Vendor's Solicitors shall be a full and sufficient discharge to the Purchaser for the monies payable on Completion and the Purchaser shall not be concerned to see to the application of any payment by the Purchaser under this Clause 4.3.
4.4 If all the provisions of Clause 4.2 are not complied with in full on Completion the Purchaser may:
(a) defer Completion to a date not more than 28 days after the date specified in Clause 4.1 in which event the provisions of this Clause 4.4 shall apply to Completion as so deferred; or
(b) proceed to Completion so far as practicable without prejudice to its rights under this Agreement or otherwise and so that any provision of Clause 4.2 which may not have been complied with at Completion shall at the sole discretion of the Purchaser be held over to such future date or dates as the Purchaser may in its sole discretion determine; or
(c) terminate this Agreement (save for Clauses 12, 13, 14 and 20, which shall remain in full force and effect) provided that such termination shall not affect the rights and obligations of the parties which have accrued prior to termination and shall not limit or exclude any other rights or remedies of the Purchaser in respect of any failure by the Vendor to comply with the requirements of Clause 4.2 on the due date.
4.5 The Vendor shall use all reasonable endeavours to procure compliance with the provisions of Clause 4.2 on any date set for Completion US$1 in accordance with this Agreement.
4.6 The Vendor undertakes to and covenants with the Purchaser (for itself and as trustee for the Company) that if, after Completion, it is discovered that the Company had on or before Completion given or undertaken any guarantees, indemnities or similar securities in respect of the obligations or liabilities of any person other than the Company and such guarantees, indemnities or similar securities were not finally and unconditionally released on or before Completion, the Vendor will fully indemnify the Purchaser and the Company and keep each of them fully indemnified on demand against all claims, demands, actions, proceedings, damages, losses, costs, expenses or liabilities suffered or incurred by the Purchaser or the Company under or in connection with such guarantees, indemnities or similar obligations.clause 5.1.6
Appears in 1 contract
Sources: Agreement for the Sale and Purchase of Debt and Shares (Golden Star Resources LTD)
Completion. 4.1 Completion 6.1 The sale and purchase of the Sale Shares shall take place be completed at the offices of the Purchaser's Solicitors immediately following the signing of this Agreement Irish solicitors at 2.00pm on 24 August 2000 (or at such other time or place or time as the Vendor and the Purchaser may parties shall agree).
4.2 At 6.2 On Completion the Vendor shall procuredeliver or cause to be delivered to the Purchaser:
(a) the delivery to the Purchaser of duly completed and executed transfers stock transfer forms in respect of the Sale Shares by together with the registered holders of the Shares related share certificates (such stock transfer forms to be in favour of the Purchaser or its nominees nominees, as the Purchaser shall direct) together with valid share certificates representing the Shares and all (if any) such waivers, consents, or other documents required as the Purchaser may require to give good title enable it or its nominees to be registered as the Sharesholders of the Sale Shares free from all Encumbrances and other adverse rights whatsoever;
(b) an acknowledgement from the delivery Vendor to the Purchaser and the Company executed as a deed to the effect that save in relation to remuneration or reimbursement of powers of attorney expenses incurred in relation to his or her employment, there is no outstanding indebtedness owing at Completion from the agreed form duly executed by the registered holders of the SharesCompany to such Vendor or to any such Vendor's Affiliate or vice versa;
(c) the delivery to the Purchaser letter of resignation from ▇▇▇▇▇ ▇▇▇▇▇▇ and ▇▇▇▇▇▇ St. ▇▇▇▇▇▇ as directors of the Company;
(d) the statutory books of the Company complete and accurate up to Completion and any company seal, certificates of incorporation, certificates of incorporation on change of name and all unused share certificates of the Company and all cheque books of the Company;
(e) the Tax Covenant Deed duly executed by the Vendor;
(d) the delivery to the Purchaser of the following, each duly executed and in form and substance satisfactory to the Purchaser:-
(i) a deed of release given in relation to the Company Guarantee;
(ii) a deed of release by each person holding or being entitled to any Encumbrance over the Shares or any of the assets of the Company;
(iii) a deed of waiver by the Vendor waiving any claim it or any of its subsidiaries or Associates may have against the Company;
(iv) deeds of waiver by each co-guarantor of the Company in respect of the Company Guarantee;
(e) the delivery to the Purchaser of the statutory books (duly written up to date) and the certificate(s) of incorporation of the Company;
(f) the delivery to the Purchaser of all current cheque books and deposit books relating to all bank accounts of the CompanyDisclosure Letter;
(g) the delivery to the Purchaser of all documents of title relating to the Properties;
(h) the delivery to the Purchaser of copies of the minutes of the meetings of the boards of directors of the Vendor revised service agreements in the agreed form, authorising (in each case) the entry into of the transaction the subject of this Agreement, approving this Agreement and any other agreements or documents to be executed pursuant to or in connection with it and appointing the relevant signatory to sign this Agreement and such other agreements and documents on their behalf certified by the company secretary of the Vendor together with (in each case) confirmation, in the agreed form, from the company secretary that the authority conferred remains valid at Completion;
(i) the passing of effective resolutions of the Directors resolving to register the transfers of the Shares subject only to stamping of the share transfers;
(j) (at the cost of the Vendor) the convening and holding of all such meetings, the passing of all such resolutions, the execution and delivery of all such documents and the taking of all other action to the extent reasonably necessary in order to complete the transfer of title to the Shares to the Purchaser free from all Encumbrances and to enable the Purchaser to exercise and receive all rights and benefits attaching to or arising from the Shares;
(k) with effect from Completion, the appointment as directors and secretary of form between the Company of such person or persons as the Purchaser shall have nominated and the resignation of each of the Directors (except ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ and ▇▇▇▇ ▇▇▇▇▇) and duly executed by the secretary of the Company by delivery of a letter under seal from each such Director and the secretary resigning from his offices and from any employment he may have with the Company with effect from Completion and acknowledging that he has no claim against the Company either actual or contingent in respect of any cause matter or thing (statutory or otherwise)parties;
(lh) the Escrow Agreement duly executed by the Vendor and the Vendor's Solicitors;
(i) the written resignation of the auditors of the Company Compa
(without compensation for loss of office or any other claim save for proper professional fees for services rendered in respect of their duties as auditors prior j) the title deeds and documents to the completion of the 1997 Audit) with effect from completion of the 1997 Audit and the delivery of a statement by them that there are no circumstances connected with their ceasing to hold office which they consider should be brought to the attention of the members or creditors of the CompanyProperties;
(mk) revocation letter of all existing authorities to non-crystallisation in the bankers agreed form executed by NatWest Bank plc.
6.3 On Completion the Vendor shall procure the holding of a meeting of the directors of the Company relating to bank accounts and at which the grant of authority to such persons as the Purchaser may nominate to operate the same;
(n) that all books, records and files directors of the Company are in its possession or under its control and where any such are not at the Properties that the Purchaser is given details of their whereabouts and any necessary authority to collect them;
(o) the delivery to the Purchaser of duly completed and executed transfers of all shares in the capital of Firstpoint Services Limited not registered in the name of the Company, the statutory books and common seal (if any) of Firstpoint Services Limited and certificates for all of the issued shares in Firstpoint Services Limited.
4.3 Immediately following fulfilment of all the matters referred to in Clause 4.2 the Purchaser shall:
(a) procure that that part of (subject to stamping) approve the Consideration payable in cash on Completion is paid by bankers draft to the Vendor's Solicitors (who are hereby irrevocably authorised to receive that consideration) on behalf of the Vendor;
(b) deliver to the Vendor's Solicitors a counterpart of the Tax Covenant duly executed by the Purchaser;
(c) if requested, and at the Vendor's cost, deliver to the Vendor's Solicitors a legal opinion in a form reasonably satisfactory to the Vendor as to the validity and enforceability of the guarantee contained within Clause 11 of this Agreement and if such opinion is that such guarantee is not valid and enforceable such amendments shall be made to the guarantee as render it valid and enforceable; and
(d) as agent for the Company, repay the Inter-Company Debt by bankers draft to the Vendor's Solicitors (who are hereby irrevocably authorised to receive that payment) on behalf of the Vendor and its subsidiaries and Associates. The delivery of a bankers draft to the Vendor's Solicitors shall be a full and sufficient discharge transfers to the Purchaser for the monies payable on Completion and the Purchaser shall not be concerned to see to the application of any payment by the Purchaser under this Clause 4.3.
4.4 If all the provisions of Clause 4.2 are not complied with in full on Completion the Purchaser may:
(aor its nominee(s)) defer Completion to a date not more than 28 days after the date specified in Clause 4.1 in which event the provisions of this Clause 4.4 shall apply to Completion as so deferred; or
(b) proceed to Completion so far as practicable without prejudice to its rights under this Agreement or otherwise and so that any provision of Clause 4.2 which may not have been complied with at Completion shall at the sole discretion of the Purchaser be held over to such future date or dates as the Purchaser may in its sole discretion determine; or
(c) terminate this Agreement (save for Clauses 12, 13, 14 and 20, which shall remain in full force and effect) provided that such termination shall not affect the rights and obligations of the parties which have accrued prior to termination and shall not limit or exclude any other rights or remedies of the Purchaser in respect of any failure by the Vendor to comply with the requirements of Clause 4.2 on the due date.
4.5 The Vendor shall use all reasonable endeavours to procure compliance with the provisions of Clause 4.2 on any date set for Completion in accordance with this Agreement.
4.6 The Vendor undertakes to and covenants with the Purchaser (for itself and as trustee for the Company) that if, after Completion, it is discovered that the Company had on or before Completion given or undertaken any guarantees, indemnities or similar securities in respect of the obligations or liabilities of any person other than the Company and such guarantees, indemnities or similar securities were not finally and unconditionally released on or before Completion, the Vendor will fully indemnify the Purchaser and the Company and keep each of them fully indemnified on demand against all claims, demands, actions, proceedings, damages, losses, costs, expenses or liabilities suffered or incurred by the Purchaser or the Company under or in connection with such guarantees, indemnities or similar obligations.Sale Shares;
Appears in 1 contract
Completion. 4.1 Completion Subject to the provisions in Clause 2 hereof, completion of the sale and purchase of the Sale Shares shall take place at the offices of Arculli Fong & Ng (the "PURCHASER'S SOLICITORS"), the Solicitors for the Purchaser's Solicitors immediately following the signing of this Agreement or , at such other place or time as the Vendor and the Purchaser may agree.
4.2 At Completion the Vendor shall procure:
(a) the delivery to the Purchaser of duly completed and executed transfers of the Shares by the registered holders of the Shares in favour of the Purchaser or its nominees together with valid share certificates representing the Shares and all (if any) other documents required to give good title to the Shares;
(b) the delivery to the Purchaser of powers of attorney in the agreed form duly executed by the registered holders of the Shares;
(c) the delivery to the Purchaser of the Tax Covenant duly executed by the Vendor;
(d) the delivery to the Purchaser of the following, each duly executed and in form and substance satisfactory to the Purchaser:-
(i) a deed of release given in relation to the Company Guarantee;
(ii) a deed of release by each person holding or being entitled to any Encumbrance over the Shares or any of the assets of the Company;
(iii) a deed of waiver by the Vendor waiving any claim it or any of its subsidiaries or Associates may have against the Company;
(iv) deeds of waiver by each co-guarantor of the Company in respect of the Company Guarantee;
(e) the delivery to the Purchaser of the statutory books (duly written up to date) and the certificate(s) of incorporation of the Company;
(f) the delivery to the Purchaser of all current cheque books and deposit books relating to all bank accounts of the Company;
(g) the delivery to the Purchaser of all documents of title relating to the Properties;
(h) the delivery to the Purchaser of copies of the minutes of the meetings of the boards of directors of the Vendor in the agreed form, authorising (in each case) the entry into of the transaction the subject of this Agreement, approving this Agreement and any other agreements or documents to be executed pursuant to or in connection with it and appointing the relevant signatory to sign this Agreement and such other agreements and documents on their behalf certified by the company secretary of the Vendor together with (in each case) confirmation, in the agreed form, from the company secretary that the authority conferred remains valid at Completion;
(i) the passing of effective resolutions of the Directors resolving to register the transfers of the Shares subject only to stamping of the share transfers;
(j) (at the cost of the Vendor) the convening and holding of all such meetings, the passing of all such resolutions, the execution and delivery of all such documents and the taking of all other action to the extent reasonably necessary in order to complete the transfer of title to the Shares to the Purchaser free from all Encumbrances and to enable the Purchaser to exercise and receive all rights and benefits attaching to or arising from the Shares;
(k) with effect from Completion, the appointment as directors and secretary of the Company of such person or persons as the Purchaser shall have nominated and the resignation of each of the Directors (except ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ and ▇▇▇▇ ▇▇▇▇▇Central, Hong Kong or any other place as the Parties may agree at 5:00 p.m. on a Friday of the week immediately following the week when the Approval is granted by the SFC, when the following business shall simultaneously be transacted :-
(a) the Purchaser shall deliver to the Vendor the following :-
(i) a solicitor's cheque for payment of the balance of the Consideration and the secretary Vendor's Solicitors will release the Deposit to the Vendor; and
(ii) a certified copy of each of the minutes of the board of directors of the Purchaser and the Guarantor approving this Agreement and authorizing/confirming the authorization of an authorised person for signing of this Agreement and (for the Purchaser) the bought note and the instrument of transfer and any other incidental documents hereof;
(b) the Vendor shall deliver to the Purchaser the following :-
(i) sold notes and instrument of transfer in favour of the Purchaser in respect of the Sale Shares all executed by the Vendor in accordance with the Stamp Duty Ordinance;
(ii) original share certificate(s) or re-issued share certificate(s) in respect of the Sale Shares;
(iii) such other documents as may be reasonably required to give a good and effective transfer of title to the Sale Shares to the Purchaser and to enable them to become the registered holders thereof;
(iv) a cheque drawn in favour of the Government of the Hong Kong Special Administrative Region for an amount equivalent to the stamp duty payable under the Stamp Duty Ordinance in respect of the sold notes in respect of the Sale Shares;
(v) a certified copy of the minutes of the board of directors of the Vendor (if the Vendor is a corporate) approving the sale of the Sale Shares and authorizing/confirming the authorization of an authorised person for signing of this Agreement and the sold note and the instrument of transfer and any other incidental documents hereof;
(vi) to the extent that the same are not already in the possession of the Company by delivery or its agents, the certificate of a letter under incorporation, business registration certificate, common seal from each such Director and the secretary resigning from his offices and from any employment he may have with the Company with effect from Completion and acknowledging that he has no claim against the Company either actual or contingent in respect of any cause matter or thing (statutory or otherwise);
(l) the resignation of the auditors of the Company (without compensation for loss of office or any other claim save for proper professional fees for services rendered in respect of their duties as auditors prior to the completion of the 1997 Audit) with effect from completion of the 1997 Audit and the delivery of a statement by them that there are no circumstances connected with their ceasing to hold office which they consider should be brought to the attention of the members or creditors of the Company;
(m) revocation , all copies of all existing authorities to the bankers memorandum and articles of the Company relating to bank accounts and the grant of authority to such persons as the Purchaser may nominate to operate the same;
(n) that all books, records and files of the Company are in its possession or under its control and where any such are not at the Properties that the Purchaser is given details of their whereabouts and any necessary authority to collect them;
(o) the delivery to the Purchaser of duly completed and executed transfers of all shares in the capital of Firstpoint Services Limited not registered in the name association of the Company, the statutory books and common seal (if any) of Firstpoint Services Limited and certificates for all of the issued shares in Firstpoint Services Limited.
4.3 Immediately following fulfilment Company duly made up to date, any unissued share certificates, all current insurance policies, books and accounts and other records, cheque books, title deeds and evidence of ownership to all the matters referred to in Clause 4.2 the Purchaser shall:
(a) procure that that part assets of the Consideration payable in cash on Completion is paid by bankers draft to the Vendor's Solicitors (who are hereby irrevocably authorised to receive that consideration) on behalf of the VendorCompany and all current contracts;
(bvii) deliver to the Vendor's Solicitors a counterpart an original of the Tax Covenant Disclosure Letter duly executed by the Vendor in the form identical to that attached as Schedule 3 hereto or with lesser disclosures;
(c) the Vendor shall cause a meeting of the board of directors of the Company to be held at which resolutions shall be passed to :-
(i) approve the transfer of the Sale Shares;
(ii) register (subject to stamping) the transfer of the Sale Shares referred to above and to issue new certificate(s) for the Sale Shares in the name(s) of the Purchaser;
(ciii) if requested, appoint one person as the Purchaser may nominate as the Chairman of the Company and at such person(s) as the Vendor's cost, deliver Purchaser may nominate as director(s) of the Company and (subject to the Vendor's Solicitors a legal opinion in a form reasonably satisfactory to the Vendor as to the validity and enforceability approval of the guarantee contained within Clause 11 SFC) one person as the Purchaser may nominate as the Responsible Officer of this Agreement and the Company all to take effect from the close of business of the said meeting if such opinion is that such guarantee is not valid and enforceable such amendments shall be made to so required by the guarantee as render it valid and enforceablePurchaser; and
(div) as agent for the Companyamend all banking authorisations, repay the Inter-Company Debt by bankers draft to the Vendor's Solicitors (who are hereby irrevocably authorised to receive that payment) on behalf instructions and mandates of the Vendor and its subsidiaries and Associates. The delivery of a bankers draft to the Vendor's Solicitors shall be a full and sufficient discharge to the Purchaser for the monies payable on Completion and the Purchaser shall not be concerned to see to the application of any payment by the Purchaser under this Clause 4.3.
4.4 If all the provisions of Clause 4.2 are not complied with Company in full on Completion the Purchaser may:
(a) defer Completion to a date not more than 28 days after the date specified in Clause 4.1 in which event the provisions of this Clause 4.4 shall apply to Completion as so deferred; or
(b) proceed to Completion so far as practicable without prejudice to its rights under this Agreement or otherwise and so that any provision of Clause 4.2 which may not have been complied with at Completion shall at the sole discretion of the Purchaser be held over to such future date or dates manner as the Purchaser may in its sole discretion determine; ordirect;
(cd) terminate this Agreement (save for Clauses 12, 13, 14 and 20, which shall remain in full force and effect) provided that such termination shall not affect the rights and obligations of the parties which have accrued prior to termination and shall not limit or exclude any other rights or remedies of the Purchaser in respect of any failure shall :-
(i) produce for inspection by the Vendor to comply with the requirements of Clause 4.2 on the due date.
4.5 The Vendor shall use all reasonable endeavours to procure compliance with the provisions of Clause 4.2 on any date set for Completion in accordance with this Agreement.
4.6 The Vendor undertakes to and covenants with the Purchaser (for itself and as trustee for the Company) that if, after Completion, it is discovered that the Company had on or before Completion given or undertaken any guarantees, indemnities or similar securities bought notes in respect of the obligations or liabilities Sale Shares executed by the Purchaser in compliance with the Stamp Duty Ordinance; and
(ii) procure the stamping of the bought and sold notes and the instrument of transfer in respect of the Sale Shares as soon as practicable thereafter and present the said instrument of transfer together with the share certificate(s) in respect of the Sale Shares to the Company for registration of the transfer.
4.2 The transactions described in Clause 4.1 hereof shall take place at the same time, so that in default of the performance of any person such transactions by a Party, the other than Party shall not be obliged to complete the Company sale and such guarantees, indemnities or similar securities were not finally and unconditionally released on or before purchase aforesaid.
4.3 Immediately after Completion, the Vendor will fully indemnify the Purchaser and Yayeka shall enter into an option agreement in the Company form and keep each of them fully indemnified on demand against all claims, demands, actions, proceedings, damages, losses, costs, expenses or liabilities suffered or incurred by the Purchaser or the Company under or substance as set out in connection with such guarantees, indemnities or similar obligationsSchedule 4 hereto.
Appears in 1 contract
Sources: Agreement for the Sale and Purchase of Shares (China Finance Online Co. LTD)
Completion. 4.1 4.01 Completion of the sale and purchase of the Sale Interests shall take place at on the offices fifth Business Day following satisfaction or waiver of the Purchaser's Solicitors immediately following the signing of this Agreement Conditions, or at such other place or time date as the Vendor and the Purchaser may agree.
4.2 At Completion the Vendor shall procure:
(a) the delivery to the Purchaser of duly completed and executed transfers of the Shares by the registered holders of the Shares agree in favour of the Purchaser or its nominees together with valid share certificates representing the Shares and all (if any) other documents required to give good title to the Shares;
(b) the delivery to the Purchaser of powers of attorney in the agreed form duly executed by the registered holders of the Shares;
(c) the delivery to the Purchaser of the Tax Covenant duly executed by the Vendor;
(d) the delivery to the Purchaser of the followingwriting at U▇▇▇ ▇, each duly executed and in form and substance satisfactory to the Purchaser:-
(i) a deed of release given in relation to the Company Guarantee;
(ii) a deed of release by each person holding or being entitled to any Encumbrance over the Shares or any of the assets of the Company;
(iii) a deed of waiver by the Vendor waiving any claim it or any of its subsidiaries or Associates may have against the Company;
(iv) deeds of waiver by each co-guarantor of the Company in respect of the Company Guarantee;
(e) the delivery to the Purchaser of the statutory books (duly written up to date) and the certificate(s) of incorporation of the Company;
(f) the delivery to the Purchaser of all current cheque books and deposit books relating to all bank accounts of the Company;
(g) the delivery to the Purchaser of all documents of title relating to the Properties;
(h) the delivery to the Purchaser of copies of the minutes of the meetings of the boards of directors of the Vendor in the agreed form▇▇/▇, authorising (in each case) the entry into of the transaction the subject of this Agreement, approving this Agreement and any other agreements or documents to be executed pursuant to or in connection with it and appointing the relevant signatory to sign this Agreement and such other agreements and documents on their behalf certified by the company secretary of the Vendor together with (in each case) confirmation, in the agreed form, from the company secretary that the authority conferred remains valid at Completion;
(i) the passing of effective resolutions of the Directors resolving to register the transfers of the Shares subject only to stamping of the share transfers;
(j) (at the cost of the Vendor) the convening and holding of all such meetings, the passing of all such resolutions, the execution and delivery of all such documents and the taking of all other action to the extent reasonably necessary in order to complete the transfer of title to the Shares to the Purchaser free from all Encumbrances and to enable the Purchaser to exercise and receive all rights and benefits attaching to or arising from the Shares;
(k) with effect from Completion, the appointment as directors and secretary of the Company of such person or persons as the Purchaser shall have nominated and the resignation of each of the Directors (except ▇▇▇▇▇▇▇▇ Comercial R▇▇▇▇▇▇▇▇, 5▇▇ ▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ and ▇▇▇▇ ▇▇▇▇▇Grande, Macao when all (but not part only) and the secretary of the Company by delivery of a letter under seal from each such Director and the secretary resigning from his offices and from any employment he may have with the Company with effect from Completion and acknowledging that he has no claim against the Company either actual or contingent in respect of any cause matter or thing (statutory or otherwise);
(l) the resignation of the auditors of the Company (without compensation for loss of office or any other claim save for proper professional fees for services rendered in respect of their duties as auditors prior to the completion of the 1997 Audit) with effect from completion of the 1997 Audit and the delivery of a statement by them that there are no circumstances connected with their ceasing to hold office which they consider should following business shall be brought to the attention of the members or creditors of the Company;
(m) revocation of all existing authorities to the bankers of the Company relating to bank accounts and the grant of authority to such persons as the Purchaser may nominate to operate the same;
(n) that all books, records and files of the Company are in its possession or under its control and where any such are not at the Properties that the Purchaser is given details of their whereabouts and any necessary authority to collect them;
(o) the delivery to the Purchaser of duly completed and executed transfers of all shares in the capital of Firstpoint Services Limited not registered in the name of the Company, the statutory books and common seal (if any) of Firstpoint Services Limited and certificates for all of the issued shares in Firstpoint Services Limited.
4.3 Immediately following fulfilment of all the matters referred to in Clause 4.2 the Purchaser shall:transacted:-
(a) procure that that part the Vendor shall give a copy of such documents and take such actions as have been required (including but not limited to the obtaining of all approvals of the Consideration payable relevant governmental authorities in cash on Completion is paid by bankers draft the PRC) to give a good title to the Vendor's Solicitors (who are hereby irrevocably authorised Sale Interests and to receive that consideration) on behalf of enable the VendorPurchaser to be registered as the holder thereof;
(b) the Vendor shall deliver to or to the Vendor's Solicitors a counterpart order of the Tax Covenant duly executed by Purchaser evidence satisfactory to the PurchaserPurchaser that a good title to the Sale Interests have been passed to the Purchaser and the Purchaser has been registered as the holder thereof;
(c) the Vendor shall deliver or (if requested, and at the Vendor's cost, deliver Purchaser shall so agree) make available to or to the Vendor's Solicitors a legal opinion in a form reasonably satisfactory to the Vendor as to the validity and enforceability order of the guarantee contained within Clause 11 Purchaser such of this Agreement the following as the Purchaser may require:-
(i) all statutory and if such opinion is that such guarantee is not valid and enforceable such amendments minute books (which shall be made written up to but not including the guarantee as render it valid Completion Date), certificate of incorporation, certificate of incorporation on change of name (if any), certificate of business registration and enforceablecommon seal of Jetup and all members of the Zastron Group; and
(ii) all books and accounts and other records of Jetup and all members of the Zastron Group, title deeds, leases, tenancy agreements and other documents relating to any properties owned, leased and/or occupied by Jetup and all members of the Zastron Group (except where such documents are held by a third party pursuant to any mortgage or other security arrangements) and all other documents and records of Jetup and all members of the Zastron Group;
(d) as agent for the Company, repay the Inter-Company Debt by bankers draft Purchaser shall deliver to or to the Vendor's Solicitors (who are hereby irrevocably authorised to receive that payment) on behalf order of the Vendor and its subsidiaries and Associates. The delivery of a bankers draft to the Vendor's Solicitors duly executed Convertible Bond.
4.02 No party shall be a full and sufficient discharge obliged to the Purchaser for the monies payable on Completion and the Purchaser shall not be concerned to see to the application of any payment by the Purchaser under this Clause 4.3.
4.4 If all the provisions of Clause 4.2 are not complied with in full on Completion the Purchaser may:
(a) defer Completion to a date not more than 28 days after the date specified in Clause 4.1 in which event the provisions of this Clause 4.4 shall apply to Completion as so deferred; or
(b) proceed to Completion so far as practicable without prejudice to its rights under complete this Agreement or otherwise and so perform any obligations under Clause 4.01 unless the other party demonstrates that any provision of Clause 4.2 which may not have been complied with at Completion shall at the sole discretion of the Purchaser be held over to such future date or dates as the Purchaser may in its sole discretion determine; or
(c) terminate this Agreement (save for Clauses 12, 13, 14 and 20, which shall remain in full force and effect) provided that such termination shall not affect the rights and obligations of the parties which have accrued prior to termination and shall not limit or exclude any other rights or remedies of the Purchaser in respect of any failure by the Vendor it is able to comply fully with the requirements of Clause 4.2 on the due date4.01 simultaneously.
4.5 The Vendor shall use all reasonable endeavours to procure compliance with the provisions of Clause 4.2 on any date set for Completion in accordance with this Agreement.
4.6 The Vendor undertakes to and covenants with the Purchaser (for itself and as trustee for the Company) that if, after Completion, it is discovered that the Company had on or before Completion given or undertaken any guarantees, indemnities or similar securities in respect of the obligations or liabilities of any person other than the Company and such guarantees, indemnities or similar securities were not finally and unconditionally released on or before Completion, the Vendor will fully indemnify the Purchaser and the Company and keep each of them fully indemnified on demand against all claims, demands, actions, proceedings, damages, losses, costs, expenses or liabilities suffered or incurred by the Purchaser or the Company under or in connection with such guarantees, indemnities or similar obligations.
Appears in 1 contract
Sources: Sale and Purchase Agreement (Nam Tai Electronics Inc)
Completion. 4.1 5.1 Completion shall take place at 12:00 noon (Hong Kong time) on the offices of the Purchaser's Solicitors immediately following the signing of this Agreement Completion Date or at such other time or place or time as the Vendor CDI and the Purchaser DAPL may agreeagree in writing.
4.2 5.2 At Completion the Vendor Completion, DAPL shall procuredeliver or procure to be delivered to CDI:
(a) a copy (certified as a true copy by a director or the delivery to the Purchaser company secretary of duly completed and executed transfers DAPL) of the Shares by the registered holders resolutions of the Shares in favour board of directors of DAPL authorising the Purchaser or execution of, and performance by, DAPL of its nominees together with valid share certificates representing obligations under the Shares and all (if any) other documents required Transaction Documents to give good title to the Shareswhich it is a party;
(b) the delivery to original instrument of transfer and sold note in respect of the Purchaser of powers of attorney in the agreed form Repurchase Shares duly executed by the registered holders DAP▇ ▇▇ favour of the SharesCDI;
(c) the delivery to the Purchaser original share certificate(s) in respect of the Tax Covenant duly executed by Repurchase Shares issued in the Vendorname of DAPL;
(d) the delivery to the Purchaser original instrument of transfer and bought note in respect of the following, each Mengniu Conversion Shares duly executed by DAP▇ ▇▇ favour of CDI; and
(e) the original instrument of transfer and bought note in form respect of the CMD Conversion Shares duly executed by DAP▇ ▇▇ favour of CDI; and
(f) a copy of the duly signed resignation letters or removal notices for each of the DAPL nominated directors on the Board and substance satisfactory on the board of directors of Prominent Achiever Limited.
5.3 At Completion, CDI shall:
(a) deliver or procure to the Purchaser:-be delivered to DAPL:
(i) a copy (certified as a true copy by a director or the company secretary of CDI) of the resolutions of the Board authorising the execution of, and performance by, CDI of its obligations under,
(A) this Agreement, (B) the deed in relation to transfer costs and Tax arising from the Transactions, and (C) the deed of release given termination in relation to the Company GuaranteeCDI Shareholders’ Agreement;
(ii) a copy (certified as a true copy by a director or the company secretary of COFCO Dairy) of the resolutions of the board of directors of COFCO Dairy authorising the execution of, and performance by, COFCO Dairy of its obligations under, (A) this Agreement, and (B) the deed of release by each person holding or being entitled termination in relation to any Encumbrance over the Shares or any of the assets of the CompanyCDI Shareholders’ Agreement;
(iii) a copy (certified as a true copy by a director or the company secretary of CSL) of the resolutions of the board of directors of CSL authorising the execution of, and performance by, CSL of its obligations under, (A) this Agreement, and (B) the deed of waiver by termination in relation to the Vendor waiving any claim it or any of its subsidiaries or Associates may have against the CompanyCDI Shareholders’ Agreement;
(iv) deeds the original instrument of waiver by each co-guarantor of the Company transfer and bought note in respect of the Company GuaranteeRepurchase Shares duly executed by CDI in favour of DAPL;
(ev) the delivery to the Purchaser original instrument of transfer and sold note in respect of the statutory books Mengniu Conversion Shares duly executed by CDI in favour of DAPL; and
(duly written up to datevi) the original instrument of transfer and the certificate(s) of incorporation sold note in respect of the CompanyCMD Conversion Shares duly executed by CDI in favour of DAPL;
(fb) procure that its designated CCASS participant gives an irrevocable delivery instruction to effect a Free of Payment book-entry settlement of the delivery Mengniu Conversion Shares and the CMD Conversion Shares in accordance with the General Rules and Operational Procedures of CCASS to the Purchaser of all current cheque books and deposit books relating to all bank accounts credit of the Company;stock account of the designated CCASS participant of DAPL (whose details will be provided by DAPL prior to Completion) and deliver to DAPL evidence of such irrevocable delivery instruction; and
(gc) pay to DAPL the delivery to the Purchaser of all documents of title relating to the Properties;
(h) the delivery to the Purchaser of copies amount of the minutes CDI Cash Consideration in accordance with Clause 11.
5.4 The sale and buy-back of the meetings Repurchase Shares and the transfer of the boards of directors of Mengniu Conversion Shares and the Vendor in CMD Conversion Shares shall take place as simultaneously as possible on the agreed form, authorising (in each case) the entry into of the transaction the subject of this Agreement, approving this Agreement and any other agreements Completion Date.
5.5 CDI undertakes to execute or documents procure to be executed pursuant to or in connection with it and appointing the relevant signatory to sign this Agreement and such other agreements and documents on their behalf certified by the company secretary of the Vendor together with (in each case) confirmation, in the agreed form, from the company secretary that the authority conferred remains valid at Completion;
(i) the passing of effective resolutions of the Directors resolving to register the transfers of the Shares subject only to stamping of the share transfers;
(j) (at the cost of the Vendor) the convening and holding of all such meetings, the passing of all such resolutions, the execution and delivery of all such documents and the taking of do all other action to the extent such acts and things as may be reasonably necessary requested in order to complete the transfer of title give effect to the Shares to the Purchaser free from all Encumbrances Transactions and to enable the Purchaser sale and buy-back of the Repurchase Shares, the transfer to exercise DAPL of the Mengniu Conversion Shares and receive the CMD Conversion Shares, and the payment to DAPL of the CDI Cash Consideration to be carried out and given full force and effect.
5.6 If the provisions of Clauses 5.2 and 5.3 are not fully complied with by DAPL or by CDI before or on the date set for Completion, DAPL (in the case of non- compliance by CDI) or CDI (in the case of non-compliance by DAPL) shall be entitled (in addition to and without prejudice to all other rights and benefits attaching to or arising from the Shares;
(k) with effect from Completion, the appointment as directors and secretary of the Company of such person or persons as the Purchaser shall have nominated and the resignation of each of the Directors (except ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ and ▇▇▇▇ ▇▇▇▇▇) and the secretary of the Company by delivery of a letter under seal from each such Director and the secretary resigning from his offices and from any employment he may have with the Company with effect from Completion and acknowledging that he has no claim against the Company either actual or contingent in respect of any cause matter or thing (statutory or otherwise);
(l) the resignation of the auditors of the Company (without compensation for loss of office or any other claim save for proper professional fees for services rendered in respect of their duties as auditors prior remedies available to the completion of terminating Party, including the 1997 Auditright to claim damages) with effect from completion of the 1997 Audit and the delivery of a statement by them that there are no circumstances connected with their ceasing to hold office which they consider should be brought written notice to the attention of the members or creditors of the Company;
(m) revocation of all existing authorities to the bankers of the Company relating to bank accounts and the grant of authority to such persons as the Purchaser may nominate to operate the same;
(n) that all books, records and files of the Company are in its possession or under its control and where any such are not at the Properties that the Purchaser is given details of their whereabouts and any necessary authority to collect them;
(o) the delivery to the Purchaser of duly completed and executed transfers of all shares in the capital of Firstpoint Services Limited not registered in the name of the Company, the statutory books and common seal (if any) of Firstpoint Services Limited and certificates for all of the issued shares in Firstpoint Services Limited.
4.3 Immediately following fulfilment of all the matters referred to in Clause 4.2 the Purchaser shallother Parties:
(a) procure that that to elect to terminate this Agreement (other than Clauses 1 and 10 to 22 (the Surviving Provisions)) without liability on the part of the Consideration payable terminating Party, except in cash on Completion is paid by bankers draft respect of any rights and liabilities which have accrued prior to the Vendor's Solicitors (who are hereby irrevocably authorised to receive that consideration) on behalf termination or under any of the VendorSurviving Provisions;
(b) deliver to effect Completion so far as practicable having regard to the Vendor's Solicitors a counterpart of the Tax Covenant duly executed by the Purchaser;defaults which have occurred; or
(c) if requested, and at the Vendor's cost, deliver to the Vendor's Solicitors fix a legal opinion in a form reasonably satisfactory to the Vendor as to the validity and enforceability of the guarantee contained within Clause 11 of this Agreement and if such opinion is that such guarantee is new date for Completion (not valid and enforceable such amendments shall be made to the guarantee as render it valid and enforceable; and
(d) as agent for the Company, repay the Inter-Company Debt by bankers draft to the Vendor's Solicitors (who are hereby irrevocably authorised to receive that payment) on behalf of the Vendor and its subsidiaries and Associates. The delivery of a bankers draft to the Vendor's Solicitors shall be a full and sufficient discharge to the Purchaser for the monies payable on Completion and the Purchaser shall not be concerned to see to the application of any payment by the Purchaser under this Clause 4.3.
4.4 If all the provisions of Clause 4.2 are not complied with in full on Completion the Purchaser may:
(a) defer Completion to a date not being more than 28 days five Business Days after the agreed date specified in Clause 4.1 for Completion), in which event case the foregoing provisions of this Clause 4.4 5 shall apply to Completion as so deferred; or.
(b) proceed 5.7 Subject to Completion so far as practicable without prejudice to its rights under this Agreement or otherwise and so that any provision of Clause 4.2 which may not have been complied having taken place, DAPL shall arrange for: (a) the lodging with at Completion shall at the sole discretion Stamp Office of the Purchaser be held over to such future date or dates as instrument(s) of transfer and bought and sold notes in respect of, (i) the Purchaser may in its sole discretion determine; or
(c) terminate this Agreement (save for Clauses 12, 13, 14 sale and 20, which shall remain in full force and effect) provided that such termination shall not affect the rights and obligations buy-back of the parties which have accrued prior to termination and shall not limit or exclude any other rights or remedies of the Purchaser in respect of any failure by the Vendor to comply with the requirements of Clause 4.2 on the due date.
4.5 The Vendor shall use all reasonable endeavours to procure compliance with the provisions of Clause 4.2 on any date set for Completion in accordance with this Agreement.
4.6 The Vendor undertakes to and covenants with the Purchaser (for itself and as trustee for the Company) that ifRepurchase Shares, after Completion, it is discovered that the Company had on or before Completion given or undertaken any guarantees, indemnities or similar securities in respect of the obligations or liabilities of any person other than the Company and such guarantees, indemnities or similar securities were not finally and unconditionally released on or before Completion, the Vendor will fully indemnify the Purchaser and the Company and keep each of them fully indemnified on demand against all claims, demands, actions, proceedings, damages, losses, costs, expenses or liabilities suffered or incurred by the Purchaser or the Company under or in connection with such guarantees, indemnities or similar obligations.and
Appears in 1 contract
Sources: Share Repurchase Agreement
Completion. 4.1 Completion of the purchase of the Shares shall take place at the offices of the Purchaser's Solicitors immediately following Civil Law Notary on the signing of this Agreement or at such other place or time as the Vendor and the Purchaser may agreeCompletion Date.
4.2 At Completion the Vendor shall procure:
(a) the delivery to the Purchaser The notarial deed of duly completed and executed transfers transfer of the Shares by the registered holders of the Shares in favour of the Purchaser or its nominees together with valid share certificates representing the Shares and all (if any) other documents required to give good title to the Shares;
(b) the delivery to the Purchaser of powers of attorney in the agreed form duly executed by the registered holders of the Shares;
(c) the delivery to the Purchaser of the Tax Covenant duly executed by the Vendor;
(d) the delivery to the Purchaser of the following, each duly executed and in form and substance satisfactory to the Purchaser:-
(i) a deed of release given in relation to the Company Guarantee;
(ii) a deed of release by each person holding or being entitled to any Encumbrance over the Shares or any of the assets of the Company;
(iii) a deed of waiver by the Vendor waiving any claim it or any of its subsidiaries or Associates may have against the Company;
(iv) deeds of waiver by each co-guarantor of the Company in respect of the Company Guarantee;
(e) the delivery to the Purchaser of the statutory books (duly written up to date) and the certificate(s) of incorporation of the Company;
(f) the delivery to the Purchaser of all current cheque books and deposit books relating to all bank accounts of the Company;
(g) the delivery to the Purchaser of all documents of title relating to the Properties;
(h) the delivery to the Purchaser of copies of the minutes of the meetings of the boards of directors of the Vendor in the agreed form, authorising (in each case) the entry into of the transaction the subject of this Agreement, approving this Agreement and any other agreements or documents to will be executed pursuant to or in connection with it and appointing the relevant signatory to sign this Agreement and such other agreements and documents on their behalf certified by the company secretary of the Vendor together with (in each case) confirmation, in the agreed form, from the company secretary that the authority conferred remains valid at Completion;
(i) the passing of effective resolutions of the Directors resolving to register the transfers of the Shares subject only to stamping of the share transfers;
(j) (at the cost of the Vendor) the convening and holding of all such meetings, the passing of all such resolutions, the execution and delivery of all such documents and the taking of all other action to the extent reasonably necessary in order to complete the transfer of title to the Shares to the Purchaser free from all Encumbrances and to enable the Purchaser to exercise and receive all rights and benefits attaching to or arising from the Shares;
(k) with effect from Completion, the appointment as directors and secretary of the Company of such person or persons as the Purchaser shall have nominated and the resignation of each of the Directors (except before M▇▇▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇van Waateringe, ▇▇▇▇▇▇ ▇▇▇▇Civil Law Notary in Amsterdam, The Netherlands, or a deputy of Mr. Van Waateringe, Mr. Van Waateringe, is a civil law notary of Holland Van Gijzen Advocaten en Notarissen, the firm of the external legal advisors of Purchaser. Vendors acknowledge that they are aware of the provisions 9 and 10 of the guidelines concerning the association between civil law notaries and banisters/solicitors as established by the Royal Professional Association of civil Law Notaries (Koninklijke Notariele Beroepsorganisatie). Vendors agree that Holland Van Gijzen Advocaten en Notarissen might in the future advise and act on behalf of Purchaser with respect to this Agreement and the execution thereof, including any dispute.
4.3 On the Completion Date the Vendors shall deliver to the Purchaser: 4.
3.1 Relevant authorisations and powers of attorney (if necessary), and 4.
3.2 the resignation letters of the members of the supervisory board of the Company, each resignation including a waiver of any non-paid consideration and/or (rights to) damages, which resignations will be accepted by Purchaser under the discharge of each member of the supervisory board for its liability arising out of the performance of its duties fulfilled in its capacity as member of the supervisory board,
4.4 A shareholders' meeting of the Company and of each of the Subsidiaries shall be held on the Completion Date at which: 4.
4.1 such persons as the Purchaser may nominate shall be appointed directors of the Company and each of the Subsidiaries with immediate effect; 4.
4.2 such persons as the Purchaser may nominate shall be appointed members of the supervisory board of the Company with immediate effect; 4.
4.3 the Facility Agreement shall be approved; 4.
4.4 each member of the board of directors of each of the Company and each of the Subsidiaries will be instructed and granted powers of attorney to represent the Company and the Subsidiaries with respect to the (entering into the) Facility.
4.5 There shall be delivered to the Purchaser on the Completion Date: 4.
5.1 the Management Agreements duly signed by M▇ ▇▇▇▇▇▇▇▇ and ▇▇▇M▇ ▇▇▇▇▇) and the secretary of the Company by delivery of a letter under seal from each such Director and the secretary resigning from his offices and from any employment he may have with the Company with effect from Completion and acknowledging that he has no claim against the Company either actual or contingent in respect of any cause matter or thing (statutory or otherwise);
(l) the resignation of the auditors of the Company (without compensation for loss of office or any other claim save for proper professional fees for services rendered in respect of their duties as auditors prior to the completion of the 1997 Audit) with effect from completion of the 1997 Audit and the delivery of a statement by them that there are no circumstances connected with their ceasing to hold office which they consider should be brought to the attention of the members or creditors of the Company;
(m) revocation of all existing authorities to the bankers of the Company relating to bank accounts and the grant of authority to such persons as the Purchaser may nominate to operate the same;
(n) that all books, records and files of the Company are in its possession or under its control and where any such are not at the Properties that the Purchaser is given details of their whereabouts and any necessary authority to collect them;
(o) the delivery to the Purchaser of duly completed and executed transfers of all shares in the capital of Firstpoint Services Limited not registered in the name of the Company, the statutory books and common seal (if any) of Firstpoint Services Limited and certificates for all of the issued shares in Firstpoint Services Limited.
4.3 Immediately following fulfilment of all the matters referred to in Clause 4.2 the Purchaser shall:
(a) procure that that part of the Consideration payable in cash on Completion is paid by bankers draft to the Vendor's Solicitors (who are hereby irrevocably authorised to receive that consideration) on behalf of the Vendor;
(b) deliver to the Vendor's Solicitors a counterpart of the Tax Covenant duly executed by the Purchaser;
(c) if requested, and at the Vendor's cost, deliver to the Vendor's Solicitors a legal opinion in a form reasonably satisfactory to the Vendor as to the validity and enforceability of the guarantee contained within Clause 11 of this Agreement and if such opinion is that such guarantee is not valid and enforceable such amendments shall be made to the guarantee as render it valid and enforceable▇▇▇; and
(d) as agent for the Company, repay the Inter-Company Debt by bankers draft to the Vendor's Solicitors (who are hereby irrevocably authorised to receive that payment) on behalf of the Vendor and its subsidiaries and Associates. The delivery of a bankers draft to the Vendor's Solicitors shall be a full and sufficient discharge to the Purchaser for the monies payable on Completion and the Purchaser shall not be concerned to see to the application of any payment by the Purchaser under this Clause 4.3.
4.4 If all the provisions of Clause 4.2 are not complied with in full on Completion the Purchaser may:
(a) defer Completion to a date not more than 28 days after the date specified in Clause 4.1 in which event the provisions of this Clause 4.4 shall apply to Completion as so deferred; or
(b) proceed to Completion so far as practicable without prejudice to its rights under this Agreement or otherwise and so that any provision of Clause 4.2 which may not have been complied with at Completion shall at the sole discretion of the Purchaser be held over to such future date or dates as the Purchaser may in its sole discretion determine; or
(c) terminate this Agreement (save for Clauses 12, 13, 14 and 20, which shall remain in full force and effect) provided that such termination shall not affect the rights and obligations of the parties which have accrued prior to termination and shall not limit or exclude any other rights or remedies of the Purchaser in respect of any failure by the Vendor to comply with the requirements of Clause 4.2 on the due date.
4.5 The Vendor shall use all reasonable endeavours to procure compliance with the provisions of Clause 4.2 on any date set for Completion in accordance with this Agreement.
4.6 The Vendor undertakes to and covenants with the Purchaser (for itself and as trustee for the Company) that if, after Completion, it is discovered that the Company had on or before Completion given or undertaken any guarantees, indemnities or similar securities in respect of the obligations or liabilities of any person other than the Company and such guarantees, indemnities or similar securities were not finally and unconditionally released on or before Completion, the Vendor will fully indemnify the Purchaser and the Company and keep each of them fully indemnified on demand against all claims, demands, actions, proceedings, damages, losses, costs, expenses or liabilities suffered or incurred by the Purchaser or the Company under or in connection with such guarantees, indemnities or similar obligations.4
Appears in 1 contract
Completion. 4.1 4.1. Completion shall take place at the Company’s offices of the Purchaser's Solicitors immediately following forthwith after the signing of this Agreement or at such other place or and time as may be agreed between the Vendor Transferors and the Purchaser may agreeCompany.
4.2 4.2. All of the actions to be taken by each Transferor pursuant to Completion for such Transferor’s BVI Sub Shares shall be subject to such Completion occurring simultaneously with Completion for each of the other Transferors’ BVI Sub Shares, and none of the actions with respect to Completion for a Transferor shall be deemed to have occurred until Completion with respect to each Transferor is complete.
4.3. At Completion the Vendor shall procureCompletion, each Transferor shall:
(a) the delivery deliver or procure to be delivered to the Purchaser of duly completed and executed transfers of the Shares by the registered holders of the Shares in favour of the Purchaser or its nominees together with valid share certificates representing the Shares and all (if any) other documents required to give good title to the Shares;
(b) the delivery to the Purchaser of powers of attorney in the agreed form duly executed by the registered holders of the Shares;
(c) the delivery to the Purchaser of the Tax Covenant duly executed by the Vendor;
(d) the delivery to the Purchaser of the following, each duly executed and in form and substance satisfactory to the Purchaser:-Company:
(i) a deed of release given in relation to the Company Guaranteeoriginal share certificates for the BVI Sub Shares (if any have been issued previously) held by such Transferor;
(ii) a deed of release (if so requested by each person holding or being entitled to any Encumbrance over the Shares or any of the assets directors of the Company) share transfer forms duly executed by such Transferor in respect of the transfer by such Transferor to the Company of its BVI Sub Shares;
(iii) a deed true copy certified by a director of waiver BVI Sub of the board resolutions of BVI Sub approving the transfer by the Vendor waiving any claim it or any Transferors to the Company of its subsidiaries or Associates may have against the BVI Sub Shares and the execution, delivery and performance of this Agreement, the updating of the register of members of BVI Sub and registration of the Company as a member of BVI Sub and the issue of share certificates in respect of the BVI Sub Shares to the Company;
(iv) deeds such other documents as may be required to give a good, complete and effective transfer of waiver by each co-guarantor title of the BVI Sub Shares to the Company and to enable the Company to become the registered holder(s) thereof, if applicable; and
(b) procure that the Company be duly registered as the holder of the BVI Sub Shares subject to the memorandum and articles of association of BVI Sub and arrange and/or procure the issuance of the share certificates in respect of the Company Guarantee;
(e) BVI Sub Shares and the due delivery of the same to the Purchaser of the statutory books (duly written up to date) and the certificate(s) of incorporation of the Company;.
(f) the delivery to the Purchaser of all current cheque books and deposit books relating to all bank accounts of the Company;
(g) the delivery to the Purchaser of all documents of title relating to the Properties;
(h) the delivery to the Purchaser of copies of the minutes of the meetings of the boards of directors of the Vendor in the agreed form, authorising (in each case) the entry into of the transaction the subject of this Agreement, approving this Agreement and any other agreements or documents to be executed pursuant to or in connection with it and appointing the relevant signatory to sign this Agreement and such other agreements and documents on their behalf certified by the company secretary of the Vendor together with (in each case) confirmation, in the agreed form, from the company secretary that the authority conferred remains valid at Completion;
(i) the passing of effective resolutions of the Directors resolving to register the transfers of the Shares subject only to stamping of the share transfers;
(j) (at the cost of the Vendor) the convening and holding of all such meetings, the passing of all such resolutions, the execution and delivery of all such documents and the taking of all other action to the extent reasonably necessary in order to complete the transfer of title to the Shares to the Purchaser free from all Encumbrances and to enable the Purchaser to exercise and receive all rights and benefits attaching to or arising from the Shares;
(k) with effect from 4.4. At Completion, the appointment as directors and secretary of the Company of such person or persons as the Purchaser shall have nominated and the resignation of each of the Directors (except ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ and ▇▇▇▇ ▇▇▇▇▇) and the secretary of the Company by delivery of a letter under seal from each such Director and the secretary resigning from his offices and from any employment he may have with the Company with effect from Completion and acknowledging that he has no claim against the Company either actual or contingent in respect of any cause matter or thing (statutory or otherwise);
(l) the resignation of the auditors of the Company (without compensation for loss of office or any other claim save for proper professional fees for services rendered in respect of their duties as auditors prior to the completion of the 1997 Audit) with effect from completion of the 1997 Audit and the delivery of a statement by them that there are no circumstances connected with their ceasing to hold office which they consider should be brought to the attention of the members or creditors of the Company;
(m) revocation of all existing authorities to the bankers of the Company relating to bank accounts and the grant of authority to such persons as the Purchaser may nominate to operate the same;
(n) that all books, records and files of the Company are in its possession or under its control and where any such are not at the Properties that the Purchaser is given details of their whereabouts and any necessary authority to collect them;
(o) the delivery to the Purchaser of duly completed and executed transfers of all shares in the capital of Firstpoint Services Limited not registered in the name of the Company, the statutory books and common seal (if any) of Firstpoint Services Limited and certificates for all of the issued shares in Firstpoint Services Limited.
4.3 Immediately following fulfilment of all the matters referred to in Clause 4.2 the Purchaser shall:
(a) deliver or procure that that part to be delivered to each of the Consideration payable in cash on Completion is paid Transferors a true copy (certified by bankers draft a director of the Company) of its board resolutions approving the acceptance of the transfer by the Transferors of their respective BVI Sub Shares to the Vendor's Solicitors (who are hereby irrevocably authorised to receive that consideration) on behalf Company, the execution, delivery and performance of this Agreement, the allotment and issue by the Company of the Vendorrelevant number of Consideration Shares to each of the Transferors and/or its nominees in the manner and as provided and referred to in Clause 2.2, all credited as fully paid, the updating of the Company’s register of members, and the appointment of directors to the board of the Company such that the board of the Company comprises the same members as the board of BVI Sub as at immediately before the date of this Agreement;
(b) deliver or procure to be delivered to each of the Transferors a true copy (certified by a director of the Company) of its shareholders’ resolution adopting the amended memorandum and articles of association substantially in the form attached hereto as Schedule 3 (“Amended Articles”) and approving the amendments to the Vendor's Solicitors a counterpart of authorized share capital as specified in the Tax Covenant duly executed by the PurchaserAmended Articles;
(c) if requested, and at simultaneously with the Vendor's cost, deliver transfer by each Transferor of its BVI Sub Shares to the Vendor's Solicitors Company, allot and issue the Consideration Shares to each such Transferor and/or its nominees in the manner and as provided and referred to in Clause 2.2;
(d) deliver or procure to be delivered to each of the Transferors a legal opinion in a form reasonably satisfactory true copy certified by the registered agent of the Company of the updated register of directors of the Company as at immediately following Completion, reflecting the appointment of directors to the Vendor board of the Company such that the board of the Company comprises the same members as the board of BVI Sub as at immediately before the date of this Agreement;
(e) deliver or procure to be delivered to each of the Transferors a true copy certified by the registered agent of BVI Sub of the updated register of members of BVI Sub as at immediately following Completion reflecting the sale and transfer by all of the Transferors of all of their respective BVI Sub Shares to the validity and enforceability of the guarantee contained within Clause 11 of this Agreement and if such opinion is that such guarantee is not valid and enforceable such amendments shall be made to the guarantee as render it valid and enforceableCompany; and
(df) as agent for the Company, repay the Inter-Company Debt by bankers draft deliver or procure to the Vendor's Solicitors (who are hereby irrevocably authorised be delivered to receive that payment) on behalf each of the Vendor and its subsidiaries and Associates. The delivery of Transferors a bankers draft to the Vendor's Solicitors shall be a full and sufficient discharge to the Purchaser for the monies payable on Completion and the Purchaser shall not be concerned to see to the application of any payment true copy certified by the Purchaser under this Clause 4.3.
4.4 If registered office of the Company of the updated register of members of the Company as at immediately following Completion reflecting the issue and allotment by the Company of all of the provisions relevant number of Clause 4.2 are not complied with Consideration Shares to each of the Transferors and/or its nominees in full on Completion the Purchaser may:
(a) defer Completion manner and as provided and referred to a date not more than 28 days after the date specified in Clause 4.1 in which event the provisions of this Clause 4.4 shall apply to Completion as so deferred; or
(b) proceed to Completion so far as practicable without prejudice to its rights under this Agreement or otherwise 2.2 and so that any provision of Clause 4.2 which may not have been complied with at Completion shall at the sole discretion of the Purchaser be held over to such future date or dates as the Purchaser may in its sole discretion determine; or
(c) terminate this Agreement (save for Clauses 12, 13, 14 and 20, which shall remain in full force and effect) provided that such termination shall not affect the rights and obligations of the parties which have accrued prior to termination and shall not limit or exclude any other rights or remedies of the Purchaser in respect of any failure by the Vendor to comply with the requirements of Clause 4.2 on the due date.
4.5 The Vendor shall use all reasonable endeavours to procure compliance with the provisions of Clause 4.2 on any date set for Completion in accordance with this Agreement.
4.6 The Vendor undertakes to and covenants with the Purchaser (for itself and as trustee for the Company) that if, after Completion, it is discovered that the Company had on or before Completion given or undertaken any guarantees, indemnities or similar securities share certificates in respect of the obligations or liabilities relevant number of any person other than Consideration Shares to each of the Company and such guarantees, indemnities or similar securities were not finally and unconditionally released on or before Transferors and/or its nominees.
4.5. At Completion, the Vendor will fully indemnify Company, BVI Sub, the Purchaser Transferors and the other parties thereto shall enter into the Shareholders’ Agreement of the Company, substantially in the form appended hereto at Schedule 4 (“Cayman Co Shareholders’ Agreement”), and the Company and keep shall deliver or procure to be delivered to each of them fully indemnified on demand against all claims, demands, actions, proceedings, damages, losses, costs, expenses or liabilities suffered or incurred the Transferors an original copy of the Cayman Co Shareholders’ Agreement duly executed by each of the Purchaser or parties thereto.
4.6. The transfer by a Transferor of the BVI Sub Shares to the Company under Clause 4.3 (“BVI Sub Transfer”) and the issue and allotment under Clause 4.4 by the Company of Consideration Shares to such Transferor and/or its nominees in the manner and as provided and referred to in Clause 2.2 (“Cayman Co Issue”) shall occur simultaneously, and none of the actions with respect to the BVI Sub Transfer or in connection the Cayman Co Issue with such guarantees, indemnities or similar obligationsrespect to a Transferor shall be deemed to have occurred until all of the steps for the BVI Sub Transfer and Cayman Co Issue are complete.
Appears in 1 contract
Sources: Share Swap Agreement (iKang Healthcare Group, Inc.)
Completion. 4.1 Completion shall take place at on the offices of the Purchaser's Solicitors immediately following the signing date of this Agreement (or at such other place or time date as the Vendor and the Purchaser parties hereto may agreeagree in writing).
4.2 At Completion Completion, the Vendor A shall procuredeliver or cause to be delivered to the Purchaser:
(a) the delivery to the Purchaser instrument(s) of duly completed and executed transfers transfer in respect of the transfer of the Vendor A Sale Shares duly executed by the registered holders of the Shares Vendor A in favour of the Purchaser or its nominees together with valid share certificates representing the Shares and all (if any) other documents required to give good title to the SharesPurchaser;
(b) original share certificate(s) in respect of the delivery Vendor A Sale Shares; and
(c) an application letter duly signed by the Vendor A applying for the Vendor A Consideration Shares. At Completion, the Vendor B shall deliver or cause to be delivered to the Purchaser Purchaser:
(a) instrument(s) of powers transfer in respect of attorney in the agreed form transfer of the Vendor B Sale Shares duly executed by the registered holders Vendor B in favour of the Purchaser;
(b) original share certificate(s) in respect of the Vendor B Sale Shares;; and
(c) the delivery to the Purchaser of the Tax Covenant an application letter duly executed by the Vendor;
(d) the delivery to the Purchaser of the following, each duly executed and in form and substance satisfactory to the Purchaser:-
(i) a deed of release given in relation to the Company Guarantee;
(ii) a deed of release by each person holding or being entitled to any Encumbrance over the Shares or any of the assets of the Company;
(iii) a deed of waiver signed by the Vendor waiving any claim it or any of its subsidiaries or Associates may have against B applying for the Company;Vendor B Consideration Shares.
(iv) deeds of waiver by each co-guarantor 4.3 The Vendors shall procure a meeting of the Company in respect of the Company Guarantee;
(e) the delivery to the Purchaser of the statutory books (duly written up to date) and the certificate(s) of incorporation of the Company;
(f) the delivery to the Purchaser of all current cheque books and deposit books relating to all bank accounts of the Company;
(g) the delivery to the Purchaser of all documents of title relating to the Properties;
(h) the delivery to the Purchaser of copies of the minutes of the meetings of the boards board of directors of the Vendor in the agreed form, authorising (in each case) the entry into of the transaction the subject of this Agreement, approving this Agreement and any other agreements or documents Company to be executed pursuant to or in connection with it and appointing held at which resolutions shall be passed for the relevant signatory to sign this Agreement and such other agreements and documents on their behalf certified by the company secretary of the Vendor together with (in each case) confirmation, in the agreed form, from the company secretary that the authority conferred remains valid at Completion;
(i) the passing of effective resolutions of the Directors resolving to register the transfers of the Shares subject only to stamping of the share transfers;
(j) (at the cost of the Vendor) the convening and holding of all such meetings, the passing of all such resolutions, the execution and delivery of all such documents and the taking of all other action to the extent reasonably necessary in order to complete approval for the transfer of title to the Sale Shares to the Purchaser free from all Encumbrances and to enable the Purchaser to exercise and receive all rights and benefits attaching to or arising from the Shares;
(k) with effect from Completion, the appointment as directors and secretary of the Company of such person or persons as the Purchaser shall have nominated and the resignation of each of the Directors (except ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ and ▇▇▇▇ ▇▇▇▇▇and/or its nominee(s) and the secretary registration of the Company by delivery of a letter under seal from each such Director and the secretary resigning from his offices and from any employment he may have with the Company with effect from Completion and acknowledging that he has no claim against the Company either actual or contingent in respect of any cause matter or thing (statutory or otherwise);
(l) the resignation of the auditors of the Company (without compensation for loss of office or any other claim save for proper professional fees for services rendered in respect of their duties as auditors prior transfer, subject to the completion of the 1997 Audit) with effect from completion of the 1997 Audit and the delivery of a statement by them that there are no circumstances connected with their ceasing to hold office which they consider should be brought to the attention of the members or creditors of the Company;
(m) revocation of all existing authorities to the bankers of the Company relating to bank accounts and the grant of authority to such persons as the Purchaser may nominate to operate the same;
(n) that all books, records and files of the Company are in its possession or under its control and where any such are not at the Properties that the Purchaser is given details of their whereabouts and any necessary authority to collect them;
(o) the delivery to the Purchaser of duly completed and executed transfers of all shares in the capital of Firstpoint Services Limited not registered in the name of the Company, the statutory books and common seal (if anyrelevant instrument(s) of Firstpoint Services Limited and certificates transfer being produced for all of the issued shares in Firstpoint Services Limitedregistration.
4.3 Immediately following fulfilment of all the matters referred to in Clause 4.2 4.4 At Completion, the Purchaser shall:
(a) procure that that part produce instrument(s) of transfer in respect of the Consideration payable in cash on Completion is paid by bankers draft to the Vendor's Solicitors (who are hereby irrevocably authorised to receive that consideration) on behalf of the Vendor;
(b) deliver to the Vendor's Solicitors a counterpart of the Tax Covenant Sale Shares duly executed by the Purchaser;
(b) deliver a copy of the minutes of the board of directors of the Purchaser certified by a director of the Purchaser approving the allotment and issue of the Consideration Shares to the Vendors as fully paid and the registration of the respective names of each of the Vendors in the register of members of the Purchaser as the relevant registered holder of the Consideration Shares;
(c) if requested, and at the Vendor's cost, deliver to the Vendor's Solicitors a legal opinion Vendor A share certificate(s) in a form reasonably satisfactory respect of the Vendor A Consideration Shares;
(d) deliver to the Vendor as to the validity and enforceability B share certificate(s) in respect of the guarantee contained within Clause 11 of this Agreement and if such opinion is that such guarantee is not valid and enforceable such amendments shall be made to the guarantee as render it valid and enforceableVendor B Consideration Shares; and
(de) as agent for the Company, repay the Inter-Company Debt by bankers draft deliver to the Vendor's Solicitors (who are hereby irrevocably authorised to receive that payment) on behalf Vendors the updated register of members of the Vendor and its subsidiaries and Associates. The delivery of a bankers draft to Purchaser.
4.5 At Completion, the Vendor's Solicitors shall be a full and sufficient discharge to the Purchaser for the monies payable on Completion Vendors and the Purchaser shall not enter into a shareholders’ agreement in such form to be concerned to see to the application of any payment agreed by the Purchaser under this Clause 4.3.
4.4 If all Vendors and the provisions of Clause 4.2 are not complied with in full on Completion the Purchaser may:
(a) defer Completion to a date not more than 28 days after the date specified in Clause 4.1 in Purchaser, which event the provisions of this Clause 4.4 shall apply to Completion as so deferred; or
(b) proceed to Completion so far as practicable without prejudice to its rights under this Agreement or otherwise and so that any provision of Clause 4.2 which may not have been complied with at Completion shall at the sole discretion be terminated upon listing of the Purchaser be held over to such future date or dates as the Purchaser may in and/or its sole discretion determine; or
(c) terminate this Agreement (save for Clauses 12, 13, 14 and 20, which shall remain in full force and effect) provided that such termination shall not affect the rights and obligations of the parties which have accrued prior to termination and shall not limit or exclude any other rights or remedies of the Purchaser in respect of any failure by the Vendor to comply with the requirements of Clause 4.2 on the due dateholding company.
4.5 The Vendor shall use all reasonable endeavours to procure compliance with the provisions of Clause 4.2 on any date set for Completion in accordance with this Agreement.
4.6 The Vendor undertakes to and covenants with the Purchaser (for itself and as trustee for the Company) that if, after Completion, it is discovered that the Company had on or before Completion given or undertaken any guarantees, indemnities or similar securities in respect of the obligations or liabilities of any person other than the Company and such guarantees, indemnities or similar securities were not finally and unconditionally released on or before Completion, the Vendor will fully indemnify the Purchaser and the Company and keep each of them fully indemnified on demand against all claims, demands, actions, proceedings, damages, losses, costs, expenses or liabilities suffered or incurred by the Purchaser or the Company under or in connection with such guarantees, indemnities or similar obligations.
Appears in 1 contract
Sources: Agreement for Sale and Purchase of Shares (CBL International LTD)
Completion. 4.1 Subject as hereinafter provided, Completion shall take place at the offices of the Purchaser's Solicitors immediately following the signing of this Agreement Purchaser (or at such other place or time as the Vendor and Parties may agree in writing) on the Purchaser may agreeCompletion Date.
4.2 At On the Completion Date, the Vendor following events shall procure:occur,
(a) the delivery Vendor shall deliver to the Purchaser of the following documents:
(i) a duly completed and executed transfers transfer form in respect of the Sale Shares by in the registered holders of the Shares Company in favour of the Purchaser (or its nominees together with valid such other person as it may direct) accompanied by the relevant share certificates representing for the Sale Shares and all (if any) other documents required to give good title to the Shares;
(b) the delivery to the Purchaser of powers of attorney in the agreed form duly executed by Company and the registered holders of the Shares;
(c) the delivery to the Purchaser of the Tax Covenant duly executed by the Vendor;
(d) the delivery to the Purchaser of the following, each duly executed and in form and substance satisfactory to the Purchaser:-
(i) a deed of release given in relation to the Company GuaranteeStamp Duty Documents;
(ii) a deed the certificate of release by incorporation, corporate seals (if any) and cheque books and statutory books of each person holding or being entitled to any Encumbrance over the Shares or any of the assets of the Company;
(iii) a deed duly certified copies of waiver by the Vendor waiving any claim it or any board resolutions approving the transfer of its subsidiaries or Associates may have against the Company;Sale Shares in the Company to the Purchaser and registration of the share transfers; and
(iv) deeds of waiver such waivers or consents as the Purchaser may require signed by each co-guarantor the members of the Company in respect of the Company Guarantee;
(e) the delivery to the Purchaser of the statutory books (duly written up to date) and the certificate(s) of incorporation of the Company;
(f) the delivery to the Purchaser of all current cheque books and deposit books relating to all bank accounts of the Company;
(g) the delivery to the Purchaser of all documents of title relating to the Properties;
(h) the delivery to the Purchaser of copies of the minutes of the meetings of the boards of directors of the Vendor in the agreed form, authorising (in each case) the entry into of the transaction the subject of this Agreement, approving this Agreement and or any other agreements or documents to be executed pursuant to or in connection with it and appointing the relevant signatory to sign this Agreement and such other agreements and documents on their behalf certified by the company secretary of the Vendor together with (in each case) confirmation, in the agreed form, from the company secretary that the authority conferred remains valid at Completion;
(i) the passing of effective resolutions of the Directors resolving to register the transfers of the Shares subject only to stamping of the share transfers;
(j) (at the cost of the Vendor) the convening and holding of all such meetings, the passing of all such resolutions, the execution and delivery of all such documents and the taking of all other action to the extent reasonably necessary in order to complete the transfer of title to the Shares to the Purchaser free from all Encumbrances and third party to enable the Purchaser or its nominees to exercise and receive all rights and benefits attaching to or arising from be registered as holders of the Shares;Sale Shares in the Company; and
(kb) against compliance with effect from CompletionClause 4.2(a) above by the Vendor, the appointment as directors and secretary of the Company of such person or persons as the Purchaser shall have nominated and the resignation of each of the Directors (except ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ and ▇▇▇▇ ▇▇▇▇▇) and the secretary of the Company by delivery of a letter under seal from each such Director and the secretary resigning from his offices and from any employment he may have with the Company with effect from Completion and acknowledging that he has no claim against the Company either actual or contingent in respect of any cause matter or thing (statutory or otherwise);
(l) the resignation of the auditors of the Company (without compensation for loss of office or any other claim save for proper professional fees for services rendered in respect of their duties as auditors prior to the completion of the 1997 Audit) with effect from completion of the 1997 Audit and the delivery of a statement by them that there are no circumstances connected with their ceasing to hold office which they consider should be brought to the attention of the members or creditors of the Company;
(m) revocation of all existing authorities to the bankers of the Company relating to bank accounts and the grant of authority to such persons as the Purchaser may nominate to operate the same;
(n) that all books, records and files of the Company are in its possession or under its control and where any such are not at the Properties that the Purchaser is given details of their whereabouts and any necessary authority to collect them;
(o) the delivery to the Purchaser of duly completed and executed transfers of all shares in the capital of Firstpoint Services Limited not registered in the name of the Company, the statutory books and common seal (if any) of Firstpoint Services Limited and certificates for all of the issued shares in Firstpoint Services Limited.
4.3 Immediately following fulfilment of all the matters referred to in Clause 4.2 the Purchaser shall:
(ai) issue and allot or procure that that part the issue and allotment of the Purchase Consideration payable in cash on Completion is paid by bankers draft Shares to the Vendor's Solicitors (who are hereby irrevocably authorised to receive that consideration) on behalf of the Vendor;
(bii) lodge the relevant return of allotment in respect of the issue and allotment of the Purchase Consideration Shares with the Registrar of Companies and deliver to the Vendor's Solicitors a counterpart Vendor the share certificate(s) in respect of the Tax Covenant duly executed by the Purchaser;
(c) if requested, and at the Vendor's cost, deliver to the Vendor's Solicitors a legal opinion in a form reasonably satisfactory to the Vendor as to the validity and enforceability of the guarantee contained within Clause 11 of this Agreement and if such opinion is that such guarantee is not valid and enforceable such amendments shall be made to the guarantee as render it valid and enforceablePurchase Consideration Shares; and
(diii) as agent for deliver duly certified copies of the board resolutions and shareholders’ resolutions approving, among other things, (A) the acquisition of the Sale Shares in each Company, repay (B) the Inter-Company Debt by bankers draft issue and allotment of the Purchase Consideration Shares to the Vendor's Solicitors , and (who are hereby irrevocably authorised to receive that paymentC) on behalf the lodgment of a return of allotment of the Vendor issue and its subsidiaries and Associates. The delivery of a bankers draft to the Vendor's Solicitors shall be a full and sufficient discharge to the Purchaser for the monies payable on Completion and the Purchaser shall not be concerned to see to the application of any payment by the Purchaser under this Clause 4.3.
4.4 If all the provisions of Clause 4.2 are not complied with in full on Completion the Purchaser may:
(a) defer Completion to a date not more than 28 days after the date specified in Clause 4.1 in which event the provisions of this Clause 4.4 shall apply to Completion as so deferred; or
(b) proceed to Completion so far as practicable without prejudice to its rights under this Agreement or otherwise and so that any provision of Clause 4.2 which may not have been complied with at Completion shall at the sole discretion allotment of the Purchaser be held over to such future date or dates as the Purchaser may in its sole discretion determine; or
(c) terminate this Agreement (save for Clauses 12, 13, 14 and 20, which shall remain in full force and effect) provided that such termination shall not affect the rights and obligations of the parties which have accrued prior to termination and shall not limit or exclude any other rights or remedies of the Purchaser in respect of any failure by the Vendor to comply Purchase Consideration Shares with the requirements Registrar of Clause 4.2 on the due dateCompanies.
4.5 The Vendor shall use all reasonable endeavours to procure compliance with the provisions of Clause 4.2 on any date set for Completion in accordance with this Agreement.
4.6 The Vendor undertakes to and covenants with the Purchaser (for itself and as trustee for the Company) that if, after Completion, it is discovered that the Company had on or before Completion given or undertaken any guarantees, indemnities or similar securities in respect of the obligations or liabilities of any person other than the Company and such guarantees, indemnities or similar securities were not finally and unconditionally released on or before Completion, the Vendor will fully indemnify the Purchaser and the Company and keep each of them fully indemnified on demand against all claims, demands, actions, proceedings, damages, losses, costs, expenses or liabilities suffered or incurred by the Purchaser or the Company under or in connection with such guarantees, indemnities or similar obligations.
Appears in 1 contract
Completion. 4.1 Completion shall take place on 28 February 1997 at the offices of the Purchaser's Solicitors immediately following the signing of this Agreement or at such other place or time offices as the Vendor and parties may subsequently agree when:-
4.1.1 the Purchaser may agree.
4.2 At Completion Vendors shall deliver or cause to be delivered to the Vendor shall procure:Purchaser:-
(a) the delivery to the Purchaser of duly completed and executed transfers of the Shares by the registered holders of the Shares in favour of the Purchaser or its nominees Transfers together with valid the relative share certificates representing the Shares and all (if any) other documents required to give good title to in respect of the Shares;
(b) the delivery certificate of incorporation, all certificates on change of name, the seal and statutory books of the Company made up to the Purchaser date of powers of attorney in the agreed form duly executed by the registered holders of the SharesCompletion;
(c) the delivery Leases to the Purchaser of the Tax Covenant duly executed by the VendorProperty;
(d) the delivery to if the Purchaser so requires an effective waiver by each of the following, each duly executed and in form and substance satisfactory to the Purchaser:-
(i) a deed members of release given in relation to the Company Guarantee;
(ii) a deed of release by each person holding or being entitled any rights which he may have under the Articles of Association of the Company to any Encumbrance over have the Shares or any of them offered to him for purchase and any other documents necessary to substantiate the assets right of the Company;
(iii) a deed of waiver by the Vendor waiving any claim it or any of its subsidiaries or Associates may have against the Company;
(iv) deeds of waiver by each co-guarantor transferors of the Company in respect of Shares pursuant to this Agreement to transfer the Company Guaranteesame;
(e) the delivery written confirmation pursuant to the Purchaser of the statutory books (duly written up to date) and the certificate(s) of incorporation of the CompanyClause 3.1;
(f) the delivery to the Purchaser of all current cheque books and deposit books relating to all bank accounts written resignation letters executed under seal by such of the Company;
(g) the delivery to the Purchaser of all documents of title relating to the Properties;
(h) the delivery to the Purchaser of copies of the minutes of the meetings of the boards of directors of the Vendor in the agreed form, authorising (in each case) the entry into of the transaction the subject of this Agreement, approving this Agreement and any other agreements or documents to be executed pursuant to or in connection with it and appointing the relevant signatory to sign this Agreement and such other agreements and documents on their behalf certified by the company secretary of the Vendor together with (in each case) confirmation, in the agreed form, from the company secretary that the authority conferred remains valid at Completion;
(i) the passing of effective resolutions of the Directors resolving to register the transfers of the Shares subject only to stamping of the share transfers;
(j) (at the cost of the Vendor) the convening and holding of all such meetings, the passing of all such resolutions, the execution and delivery of all such documents and the taking of all other action to the extent reasonably necessary in order to complete the transfer of title to the Shares to the Purchaser free from all Encumbrances and to enable the Purchaser to exercise and receive all rights and benefits attaching to or arising from the Shares;
(k) with effect from Completion, the appointment as directors and secretary secretaries of the Company of such person or persons and the Subsidiaries as the Purchaser shall have nominated and the resignation of each of the Directors (except ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇may nominate, ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ and ▇▇▇▇ ▇▇▇▇▇) and the secretary of the Company by delivery of a letter under seal from each such Director and letter incorporating an acknowledgement that the secretary party resigning from his offices and from any employment he may have with the Company with effect from Completion and acknowledging that he has no claim against the Company either actual or contingent in respect of any cause matter or thing claims (statutory or otherwise);
(l) the resignation of the auditors of the Company (without whether for compensation for loss of office or termination of employment, unpaid remuneration or otherwise howsoever) against the Company or any other claim save for proper professional fees for services rendered of the Subsidiaries; and
4.1.2 the Vendors shall procure that the Directors shall hold a meeting of the Board of the Company at which
(a) the Directors shall appoint such persons as the Purchaser may nominate as directors of the Company and procure the resignation without compensation of any nature whatsoever of such of the Directors and Secretary of the Company as the Purchaser may nominate;
(b) the Directors shall vote in respect favour of their duties the registration of the Purchaser or its nominees as auditors prior members of the Company subject to the completion production of duly stamped and completed Transfers;
(c) there shall be presented the written resignation of the 1997 Audit) with effect from completion of the 1997 Audit and the delivery of present Auditors which shall contain a statement by them that there are no circumstances connected with their ceasing to hold office such resignation which they consider should be brought to the attention of the members shareholders or creditors of the Company;
(m) revocation of all existing authorities to the bankers Company and a statement of the Company relating to bank accounts and the grant of authority to such persons as the Purchaser may nominate to operate the same;
(n) that all books, records and files of the Company are in its possession or under its control and where any such are not at the Properties that the Purchaser is given details amount of their whereabouts outstanding fees and any necessary authority to collect themcosts;
(o) the delivery to the Purchaser of duly completed and executed transfers of all shares in the capital of Firstpoint Services Limited not registered in the name of the Company, the statutory books and common seal (if any) of Firstpoint Services Limited and certificates for all of the issued shares in Firstpoint Services Limited.
4.3 Immediately following fulfilment of all the matters referred to in Clause 4.2 the Purchaser shall:
(a) procure that that part of the Consideration payable in cash on Completion is paid by bankers draft to the Vendor's Solicitors (who are hereby irrevocably authorised to receive that consideration) on behalf of the Vendor;
(b) deliver to the Vendor's Solicitors a counterpart of the Tax Covenant duly executed by the Purchaser;
(c) if requested, and at the Vendor's cost, deliver to the Vendor's Solicitors a legal opinion in a form reasonably satisfactory to the Vendor as to the validity and enforceability of the guarantee contained within Clause 11 of this Agreement and if such opinion is that such guarantee is not valid and enforceable such amendments shall be made to the guarantee as render it valid and enforceable; and
(d) as agent for Messrs Price Waterhouse shall be appointed Auditors; 15
4.1.3 the Company, repay Vendors shall procure the Inter-convening of an extraordinary general meeting of the Company Debt by bankers draft and the passing of a special resolution to adopt new articles of association in the approved terms;
4.1.4 the Vendors shall procure that the Company will and the other persons and parties thereto shall enter into the Service Agreements;
4.1.5 Subject to the Vendor's Solicitors (who are hereby irrevocably authorised to receive that payment) on behalf performance by the Vendors of their obligations in accordance with the Vendor and its subsidiaries and Associates. The delivery foregoing provisions of a bankers draft to the Vendor's Solicitors shall be a full and sufficient discharge to the Purchaser for the monies payable on Completion and this Clause 5, the Purchaser shall not be concerned allot to see to each of the application Vendors the number of any payment by the Consideration Shares of the Purchaser under this Clause 4.3to which he is entitled hereunder and deliver the relative documents of title.
4.4 4.2 If all in any respect the provisions of Clause 4.2 sub-clauses 4.1.1, 4.1.2, 4.1.3 and 4.1.4 are not complied with in full on the date for Completion set by clause 4.1 the Purchaser may:and/or the Vendors if appropriate may:-
(a) 4.2.1 defer Completion to a date not more than 28 10 days after the date specified in Clause 4.1 in which event set out above (and so that the provisions of this Clause 4.4 sub-clause shall apply to Completion as so deferred); or
(b) 4.2.2 proceed to Completion so far as practicable (without prejudice to its rights under this Agreement or otherwise and so that any provision of Clause 4.2 which may not have been complied with at Completion shall at the sole discretion of the Purchaser be held over to such future date or dates as the Purchaser may in its sole discretion determinehereunder); or
(c) terminate this Agreement (save for Clauses 12, 13, 14 and 20, which shall remain in full force and effect) provided that such termination shall not affect the rights and obligations of the parties which have accrued prior to termination and shall not limit or exclude any other rights or remedies of the Purchaser in respect of any failure by the Vendor to comply with the requirements of Clause 4.2 on the due date.
4.5 The Vendor shall use all reasonable endeavours to procure compliance with the provisions of Clause 4.2 on any date set for Completion in accordance with this Agreement.
4.6 The Vendor undertakes to and covenants with the Purchaser (for itself and as trustee for the Company) that if, after Completion, it is discovered that the Company had on or before Completion given or undertaken any guarantees, indemnities or similar securities in respect of the obligations or liabilities of any person other than the Company and such guarantees, indemnities or similar securities were not finally and unconditionally released on or before Completion, the Vendor will fully indemnify the Purchaser and the Company and keep each of them fully indemnified on demand against all claims, demands, actions, proceedings, damages, losses, costs, expenses or liabilities suffered or incurred by the Purchaser or the Company under or in connection with such guarantees, indemnities or similar obligations.
Appears in 1 contract
Sources: Share Purchase Agreement (Parexel International Corp)
Completion. 4.1 Subject to the fulfilment (or waiver, where applicable) of all the Conditions on or before the Long Stop Date, Completion shall take place on the Completion Date at the offices principal place of business of the Purchaser's Solicitors immediately following the signing of this Agreement or at such other place or time as the Vendor and the Purchaser may agree.
4.2 At Completion the Vendor shall procure:
Issuer in Hong Kong (a) the delivery to the Purchaser of duly completed and executed transfers of the Shares by the registered holders of the Shares in favour of the Purchaser or its nominees together with valid share certificates representing the Shares and all (if any) other documents required to give good title to the Shares;
(b) the delivery to the Purchaser of powers of attorney in the agreed form duly executed by the registered holders of the Shares;
(c) the delivery to the Purchaser of the Tax Covenant duly executed by the Vendor;
(d) the delivery to the Purchaser of the followingUnit 3308, each duly executed and in form and substance satisfactory to the Purchaser:-
(i) a deed of release given in relation to the Company Guarantee;
(ii) a deed of release by each person holding or being entitled to any Encumbrance over the Shares or any of the assets of the Company;
(iii) a deed of waiver by the Vendor waiving any claim it or any of its subsidiaries or Associates may have against the Company;
(iv) deeds of waiver by each co-guarantor of the Company in respect of the Company Guarantee;
(e) the delivery to the Purchaser of the statutory books (duly written up to date) and the certificate(s) of incorporation of the Company;
(f) the delivery to the Purchaser of all current cheque books and deposit books relating to all bank accounts of the Company;
(g) the delivery to the Purchaser of all documents of title relating to the Properties;
(h) the delivery to the Purchaser of copies of the minutes of the meetings of the boards of directors of the Vendor in the agreed form33rd Floor, authorising (in each case) the entry into of the transaction the subject of this AgreementOffice Tower, approving this Agreement and any other agreements or documents to be executed pursuant to or in connection with it and appointing the relevant signatory to sign this Agreement and such other agreements and documents on their behalf certified by the company secretary of the Vendor together with (in each case) confirmation, in the agreed form, from the company secretary that the authority conferred remains valid at Completion;
(i) the passing of effective resolutions of the Directors resolving to register the transfers of the Shares subject only to stamping of the share transfers;
(j) (at the cost of the Vendor) the convening and holding of all such meetings, the passing of all such resolutions, the execution and delivery of all such documents and the taking of all other action to the extent reasonably necessary in order to complete the transfer of title to the Shares to the Purchaser free from all Encumbrances and to enable the Purchaser to exercise and receive all rights and benefits attaching to or arising from the Shares;
(k) with effect from Completion, the appointment as directors and secretary of the Company of such person or persons as the Purchaser shall have nominated and the resignation of each of the Directors (except ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇ ▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇ ▇▇, ▇▇▇▇ ▇▇▇▇▇▇▇▇ and ▇▇▇▇ ▇▇▇▇▇) and (or such other place as the secretary Parties may agree), when all (but not some only) of the Company by delivery of a letter under seal from each such Director and the secretary resigning from his offices and from any employment he may have with the Company with effect from Completion and acknowledging that he has no claim against the Company either actual or contingent events described in respect of any cause matter or thing (statutory or otherwise);this Clause 4 shall occur.
(l) the resignation of the auditors of the Company (without compensation for loss of office or any other claim save for proper professional fees for services rendered in respect of their duties as auditors prior to the completion of the 1997 Audit) with effect from completion of the 1997 Audit and the delivery of a statement by them that there are no circumstances connected with their ceasing to hold office which they consider should be brought to the attention of the members or creditors of the Company;
(m) revocation of all existing authorities to the bankers of the Company relating to bank accounts and the grant of authority to such persons as the Purchaser may nominate to operate the same;
(n) that all books, records and files of the Company are in its possession or under its control and where any such are not at the Properties that the Purchaser is given details of their whereabouts and any necessary authority to collect them;
(o) the delivery to the Purchaser of duly completed and executed transfers of all shares in the capital of Firstpoint Services Limited not registered in the name of the Company4.2 At Completion, the statutory books and common seal (if any) of Firstpoint Services Limited and certificates for all of the issued shares in Firstpoint Services Limited.
4.3 Immediately following fulfilment of all the matters referred to in Clause 4.2 the Purchaser Issuer shall:
(a) procure that that part deliver or cause to be delivered to the Subscriber a copy of the Consideration payable board resolutions of the Issuer approving, amongst others:
(i) the execution, consummation and completion of the Transaction Documents and the transactions contemplated under the Transaction Documents;
(ii) the issue of the Bonds in cash on Completion is paid accordance with this Agreement and the Bond Instrument and the entry of the Subscriber (or her nominee(s)) in the register of Bondholders in respect of such Bonds; and
(iii) any necessary actions to be undertaken by bankers draft the Directors for the purpose of giving effect to the Vendor's Solicitors (who are hereby irrevocably authorised to receive that consideration) on behalf of the Vendorabove board resolutions;
(b) deliver or cause to be delivered to the Vendor's Solicitors Subscriber a counterpart copy of the Tax Covenant duly executed by resolutions of the PurchaserShareholders referred to in Clause 3.1(a);
(c) if requested, duly execute the Bond Instrument under seal and at issue the Vendor's cost, deliver Bonds to the Vendor's Solicitors a legal opinion Subscriber (or her nominee(s)) as fully paid and free from any Encumbrances by delivering the Bond Certificate(s) representing the principal amount of the Bonds in a form reasonably satisfactory such denominations as notified by the Subscriber to the Vendor as Issuer three (3) Business Days prior to the validity and enforceability of the guarantee contained within Clause 11 of this Agreement and if such opinion is that such guarantee is not valid and enforceable such amendments shall be made to the guarantee as render it valid and enforceableCompletion Date; and
(d) as agent for the Company, repay the Inter-Company Debt by bankers draft deliver or cause to be delivered to the Vendor's Solicitors (who are hereby irrevocably authorised Subscriber the Deed of Set-Off, duly executed by the Issuer and the Borrower.
4.3 At Completion, the Subscriber shall deliver or cause to receive that payment) on behalf be delivered to the Issuer the Deed of Set-Off duly executed by the Subscriber and such delivery shall constitute a valid discharge of the Vendor and its subsidiaries and Associates. The delivery Subscriber's payment obligation in respect of a bankers draft to the Vendor's Solicitors shall be a full and sufficient discharge to subscription of the Purchaser for the monies payable on Completion and the Purchaser shall not be concerned to see to the application of any payment by the Purchaser Bonds under this Clause 4.32.2.
4.4 If all Without prejudice to any other remedies available to the provisions Parties, neither the Subscriber nor the Issuer shall be obliged to proceed with the Completion or perform any obligations hereunder unless the other Party complies fully with the requirements of Clause 4.2 are not complied with or Clause 4.3 (as the case may be). In the event of a breach by either Party of its/her obligation under Clause 4.2 or Clause 4.3 (as the case may be), the non-defaulting Party may in full on Completion its/her absolute discretion (in addition and without prejudice to any other right or remedy available to it) by written notice to the Purchaser mayother Party:
(a) defer Completion to a date falling not more than 28 days Business Days after the date specified in Clause 4.1 in which event original Completion Date (so that the provisions of this Clause 4.4 4 other than Clause 4.1 as regards the Completion Date shall apply to the deferred Completion) provided that, time shall be of the essence as regards the deferred Completion as so deferredand if Completion is not effected on such deferred date, the non-defaulting Party may rescind this Agreement; or
(b) proceed to Completion so far as practicable (but without prejudice to its the non- defaulting Party’s rights under this Agreement or otherwise and so that any provision of Clause 4.2 which may hereunder) insofar as the defaulting Party shall not have been complied with at Completion shall at the sole discretion of the Purchaser be held over to such future date or dates as the Purchaser may in its sole discretion determineits/her obligations hereunder; or
(c) terminate treat this Agreement (save as terminated for Clauses 12, 13, 14 and 20, which shall remain in full force and effect) breach by the defaulting Party of a condition of this Agreement without liability on the part of the non-defaulting Party provided that such termination of this Agreement shall not affect the rights and obligations of the parties which have accrued prior be without prejudice to termination and shall not limit or exclude any other rights or remedies of the Purchaser in respect of accrued to any failure by the Vendor Party prior to comply with the requirements of Clause 4.2 on the due dateits/her termination.
4.5 The Vendor shall use all reasonable endeavours to procure compliance with the provisions of Clause 4.2 on any date set for Completion in accordance with this Agreement.
4.6 The Vendor undertakes to and covenants with the Purchaser (for itself and as trustee for the Company) that if, after Completion, it is discovered that the Company had on or before Completion given or undertaken any guarantees, indemnities or similar securities in respect of the obligations or liabilities of any person other than the Company and such guarantees, indemnities or similar securities were not finally and unconditionally released on or before Completion, the Vendor will fully indemnify the Purchaser and the Company and keep each of them fully indemnified on demand against all claims, demands, actions, proceedings, damages, losses, costs, expenses or liabilities suffered or incurred by the Purchaser or the Company under or in connection with such guarantees, indemnities or similar obligations.
Appears in 1 contract
Sources: Subscription Agreement
Completion. 4.1 Completion shall take place immediately after the signing and exchanging of this Agreement, at the offices of the Purchaser's Solicitors immediately following the signing of this Agreement or at such other place or time as the Vendor and the Purchaser may agree.
4.2 At Completion the Vendor shall procurewhen:
(a) the delivery Sellers shall deliver or cause to be delivered to the Purchaser of duly completed and executed Purchaser:
(i) transfers of the Shares by the registered holders of the Shares duly completed in favour of the Purchaser or its nominees together with valid as it may direct;
(ii) the share certificates representing the Shares and all (if any) other documents required to give good title or an express indemnity in a form satisfactory to the SharesPurchaser in the case of any found to be missing);
(biii) all the delivery to the Purchaser of powers of attorney in the agreed form duly executed by the registered holders Statutory and Minute Books of the SharesCompany, Certificate of Incorporation and the Certificate of Incorporation on Change of Name;
(c) the delivery to the Purchaser of the Tax Covenant duly executed by the Vendor;
(d) the delivery to the Purchaser of the following, each duly executed and in form and substance satisfactory to the Purchaser:-
(iiv) a deed of release given in relation letter from the Bankers to the Company Guarantee;
(ii) a deed and dated with the date of release Completion, confirming that the existing fixed and floating charges created by each person holding or being entitled to the Company in favour of such Bankers have not crystallized and confirming that such Bankers do not have any Encumbrance claim over the Shares or any of the assets of the Company;
(iiiv) a deed letter of waiver by instruction to the Vendor waiving Bankers to the Company and written confirmation from such Bankers that it will not allow any claim it or any further debits from the bank account of its subsidiaries or Associates may the Company until the authorised signatories of that bank account have against been replaced pursuant to the Companyinstructions of the Purchaser;
(ivvi) deeds the resignation of waiver by each co-guarantor the auditors of the Company in respect accordance with section 394 of the Companies ▇▇▇ ▇▇▇▇, confirming that there are no circumstances connected with their resignation which should be brought to the notice of the members or creditors of the Company Guaranteeand that there are no fees due to them;
(evii) the delivery to the Purchaser a letter from ▇▇▇▇▇ ▇▇▇▇▇▇ of the statutory books (duly written up to date) and the certificate(s) of incorporation of the Company;
(f) the delivery to the Purchaser of all current cheque books and deposit books relating to all bank accounts of the Company;
(g) the delivery to the Purchaser of all documents of title relating to the Properties;
(h) the delivery to the Purchaser of copies of the minutes of the meetings of the boards of directors of the Vendor in the agreed form▇▇▇▇ ▇, authorising (in each case) the entry into of the transaction the subject of this Agreement, approving this Agreement and any other agreements or documents to be executed pursuant to or in connection with it and appointing the relevant signatory to sign this Agreement and such other agreements and documents on their behalf certified by the company secretary of the Vendor together with (in each case) confirmation, in the agreed form, from the company secretary that the authority conferred remains valid at Completion;
(i) the passing of effective resolutions of the Directors resolving to register the transfers of the Shares subject only to stamping of the share transfers;
(j) (at the cost of the Vendor) the convening and holding of all such meetings, the passing of all such resolutions, the execution and delivery of all such documents and the taking of all other action to the extent reasonably necessary in order to complete the transfer of title to the Shares to the Purchaser free from all Encumbrances and to enable the Purchaser to exercise and receive all rights and benefits attaching to or arising from the Shares;
(k) with effect from Completion, the appointment as directors and secretary of the Company of such person or persons as the Purchaser shall have nominated and the resignation of each of the Directors (except ▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, London W 1 P 5HP acknowledging that any Intellectual Property Rights that he developed during his employment by Cougar are the property of Cougar; and
(viii) the Intellectual Property Rights Agreement, duly executed by Cougar.
(b) the Sellers shall procure that all indebtedness due from any of the Sellers or any person connected with them to the Company shall be satisfied in full;
(c) all indebtedness due from the Company to any of the Sellers (full particulars of which are contained in the Disclosure Letter) shall be satisfied in full without payment of interest;
(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) 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;
(iii) appoint ▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇. ▇▇▇▇'▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇ ▇, ▇▇▇▇ ▇▇▇▇▇▇▇▇ and ▇▇▇▇ ▇▇▇▇▇as auditors; and
(iv) and alter the secretary accounting reference date of the Company by delivery of a letter under seal from each such Director and the secretary resigning from his offices and from any employment he may have with the Company with effect from Completion and acknowledging that he has no claim against the Company either actual or contingent in respect of any cause matter or thing (statutory or otherwise)to 1st January;
(le) the resignation of the auditors of parties shall join in procuring that all existing bank mandates in force for the Company shall be altered (without compensation for loss of office or any other claim save for proper professional fees for services rendered in respect of their duties as auditors prior to the completion of the 1997 Audit) with effect from completion of the 1997 Audit and the delivery of a statement by them that there are no circumstances connected with their ceasing to hold office which they consider should be brought to the attention of the members or creditors of the Company;
(m) revocation of all existing authorities to the bankers of the Company relating to bank accounts and the grant of authority to such persons manner as the Purchaser may nominate shall at Completion require) so as, inter alia, to operate reflect the same;resignations and appointments referred to above; and
(nf) that all books, records and files of the Company are in its possession or under its control and where any such are not at the Properties that the Purchaser is given details shall not be obliged to complete this Agreement unless the Sellers comply fully with the requirements of their whereabouts paragraphs (a), (b), (d), and any necessary authority to collect them;
(o) the delivery to the Purchaser of duly completed and executed transfers of all shares in the capital of Firstpoint Services Limited not registered in the name of the Company, the statutory books and common seal (if anye) of Firstpoint Services Limited and certificates for all of the issued shares in Firstpoint Services Limitedthis Clause.
4.3 Immediately following fulfilment 4.2 Upon completion of all the matters referred to in Clause 4.2 sub-clause 4.1 the Purchaser shall:
shall procure the allotment (aor transfer, as the case may be) procure that that part of the Consideration payable in cash on Completion is paid by bankers draft Shares (less the Deferred Consideration Shares) to the Vendor's Solicitors (who are hereby irrevocably authorised to receive that consideration) on behalf of the Vendor;
(b) deliver to the Vendor's Solicitors a counterpart of the Tax Covenant duly executed by the Purchaser;
(c) if requested, and at the Vendor's cost, deliver to the Vendor's Solicitors a legal opinion in a form reasonably satisfactory to the Vendor as to the validity and enforceability of the guarantee contained within Clause 11 of this Agreement and if such opinion is that such guarantee is not valid and enforceable such amendments shall be made to the guarantee as render it valid and enforceable; and
(d) as agent for the Company, repay the Inter-Company Debt by bankers draft to the Vendor's Solicitors (who are hereby irrevocably authorised to receive that payment) on behalf of the Vendor and its subsidiaries and Associates. The delivery of a bankers draft to the Vendor's Solicitors shall be a full and sufficient discharge to the Purchaser for the monies payable on Completion and the Purchaser shall not be concerned to see to the application of any payment by the Purchaser under this Clause 4.3Sellers.
4.4 4.3 If all for any reason the provisions of Clause 4.2 4.1 are not fully complied with in full on Completion the Purchaser may:
may elect (a) defer Completion to a date not more than 28 days after the date specified in Clause 4.1 in which event the provisions of this Clause 4.4 shall apply to Completion as so deferred; or
(b) proceed to Completion so far as practicable addition and without prejudice to its rights under this Agreement or otherwise and so that any provision of Clause 4.2 which may not have been complied with at Completion shall at the sole discretion of the Purchaser be held over to such future date or dates as the Purchaser may in its sole discretion determine; or
(c) terminate this Agreement (save for Clauses 12, 13, 14 and 20, which shall remain in full force and effect) provided that such termination shall not affect the rights and obligations of the parties which have accrued prior to termination and shall not limit or exclude any all other rights or remedies of the Purchaser in respect of any failure by the Vendor available to comply with the requirements of Clause 4.2 on the due dateit) to rescind this Agreement or fix a new date for Completion.
4.5 The Vendor shall use all reasonable endeavours to procure compliance with the provisions of Clause 4.2 on any date set for Completion in accordance with this Agreement.
4.6 The Vendor undertakes to and covenants with the Purchaser (for itself and as trustee for the Company) that if, after Completion, it is discovered that the Company had on or before Completion given or undertaken any guarantees, indemnities or similar securities in respect of the obligations or liabilities of any person other than the Company and such guarantees, indemnities or similar securities were not finally and unconditionally released on or before Completion, the Vendor will fully indemnify the Purchaser and the Company and keep each of them fully indemnified on demand against all claims, demands, actions, proceedings, damages, losses, costs, expenses or liabilities suffered or incurred by the Purchaser or the Company under or in connection with such guarantees, indemnities or similar obligations.
Appears in 1 contract
Completion. 4.1 Completion shall take place at the offices of the Purchaser's Purchasers' Solicitors immediately following the signing passing of this Agreement or at such other place or time as the Vendor special resolution and the Purchaser may agreeextraordinary resolutions referred to in clause 2.
4.2 At Completion On Completion, the Vendor Vendors shall procure:deliver to AHI:-
(a) the delivery transfers in common form relating to the Purchaser of Ordinary Shares and the Deferred Shares, duly completed and executed transfers of the Shares by the registered holders of the Shares in favour of the Purchaser or its nominees AHI, together with valid the share certificates representing the Shares and all (if any) other documents required to give good title to the Sharesrelating thereto;
(b) the delivery to the Purchaser resignations IN THE AGREED FORM of powers ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ Hustler and ▇▇▇▇ ▇▇▇▇▇ from their offices as director and/or secretary and any office or employment of attorney in the agreed form duly executed or by the registered holders of Company or the SharesSubsidiaries;
(c) the delivery to the Purchaser common seals, certificates of incorporation and statutory books of the Tax Covenant duly executed by the VendorCompany and DSL Holdings Limited;
(d) transfers relating to each share in the delivery Subsidiaries not registered in the name of the Company or a Subsidiary, duly executed in favour of AHI or as it may direct;
(e) share certificates (or the equivalent evidence of title to the Purchaser relevant shares in each jurisdiction) relating to all of the followingissued shares of each of the Subsidiaries;
(f) a deed of release IN THE AGREED FORM (releasing the Company and the Subsidiaries from any liability whatsoever (actual or contingent) which may be owing to the Institutional Vendors by the Company or any of the Subsidiaries), each duly executed and in form and substance satisfactory to by each of the Purchaser:-Institutional Vendors;
(g) a Registration Rights Agreement IN THE AGREED FORM, duly executed by each of the Vendors;
(h) Investment Letters IN THE AGREED FORM, duly executed by each of the Vendors;
(i) a deed Termination Agreement IN THE AGREED FORM, duly executed by each of release given in relation the Vendors and the other parties to the Company Guarantee;
(ii) a deed of release by each person holding or being entitled agreements to any Encumbrance over the Shares or any of the assets of the Company;
(iii) a deed of waiver by the Vendor waiving any claim which it or any of its subsidiaries or Associates may have against the Company;
(iv) deeds of waiver by each co-guarantor of the Company in respect of the Company Guarantee;
(e) the delivery to the Purchaser of the statutory books (duly written up to date) and the certificate(s) of incorporation of the Company;
(f) the delivery to the Purchaser of all current cheque books and deposit books relating to all bank accounts of the Company;
(g) the delivery to the Purchaser of all documents of title relating to the Properties;
(h) the delivery to the Purchaser of copies of the minutes of the meetings of the boards of directors of the Vendor in the agreed form, authorising (in each case) the entry into of the transaction the subject of this Agreement, approving this Agreement and any other agreements or documents to be executed pursuant to or in connection with it and appointing the relevant signatory to sign this Agreement and such other agreements and documents on their behalf certified by the company secretary of the Vendor together with (in each case) confirmation, in the agreed form, from the company secretary that the authority conferred remains valid at Completion;
(i) the passing of effective resolutions of the Directors resolving to register the transfers of the Shares subject only to stamping of the share transfersrelates;
(j) (at the cost forms of proxy IN THE AGREED FORM, duly executed by each of the Vendor) Vendors, appointing any director for the convening and holding time being of all such meetings, AHI as the passing Vendors' proxy for the purposes of all such resolutions, exercising the execution and delivery of all such documents and the taking of all other action voting rights attaching to the extent reasonably necessary in order Shares, with power to complete consent to short notice of any general meeting of the transfer of title to the Shares to the Purchaser free from all Encumbrances and to enable the Purchaser to exercise and receive all rights and benefits attaching to shareholders or arising from the Sharesany class thereof;
(k) with effect from Completionan Escrow Agreement IN THE AGREED FORM, the appointment as directors and secretary of the Company of such person or persons as the Purchaser shall have nominated and the resignation of duly executed by each of the Directors Warrantors;
(except l) service agreements IN THE AGREED FORM, duly executed by each of ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ and ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇;
(m) letters IN THE AGREED FORM (amending their respective service agreements), duly executed by each of ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ Beat, ▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇ and ▇▇▇▇▇ ▇▇▇▇▇; and
(n) a copy of the option agreement referred to at clause 4.5, duly certified as a true copy by the Management Vendors' Solicitors, and the Institutional Vendors shall deliver to AHL transfers in common form relating to the Preference Shares, duly executed in favour of AHL, together with the share certificates relating thereto.
4.3 On or prior to Completion (and in any event prior to the taking effect of the resignations of the directors referred to in paragraph (b) of clause 4.2), the Vendors shall procure the passing of board resolutions of the Company and each of the Subsidiaries:-
(a) sanctioning for registration (subject where necessary to due stamping) the transfers in respect of any shares referred to in clause 4.2;
(b) appointing ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ and ▇▇▇▇ ▇▇▇▇▇) and the secretary ▇▇ to be additional directors of the Company and ▇▇▇ ▇▇▇▇▇▇▇▇ to be an additional director of DSL Holdings Limited; and
(c) appointing ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ to be secretary of each of the Subsidiaries incorporated in England and Wales.
4.4 On Completion, immediately upon compliance by delivery of a letter under seal from each such Director and the secretary resigning from his offices and from any employment he may have Vendors with the Company with effect from Completion provisions of clauses 4.2 and acknowledging that he has no claim against 4.3:-
(a) AHI shall:-
(i) allot the Company either actual or contingent Consideration Shares to the Vendors, in the respective proportions which the number of Ordinary Shares held by them bears to the total number of Ordinary Shares;
(ii) enter the names of the Vendors in the register of members of AHI as the holders of the Consideration Shares;
(iii) deliver to ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ in New York (on behalf of the Vendors) duly executed stock certificates in respect of any cause matter or thing (statutory or otherwise)the Consideration Shares, save as envisaged pursuant to the Escrow Agreement IN THE AGREED FORM;
(liv) effect the resignation listing of the auditors Consideration Shares on the American Stock Exchange;
(v) deliver to the Management Vendors' Solicitors and the Institutional Vendors' Solicitors (on behalf of, respectively, the Management Vendors and the Institutional Vendors):-
(A) a counterpart of the Company Registration Rights Agreement IN THE AGREED FORM, duly executed by AHI;
(without compensation for loss B) a counterpart of office or any other claim save for proper professional fees for services rendered the Escrow Agreement IN THE AGREED FORM, duly executed by AHI;
(C) a certified copy of a duly executed Certificate of Good Standing in respect of their duties as auditors prior to the completion of the 1997 Audit) with effect from completion of the 1997 Audit and the delivery of a statement by them that there are no circumstances connected with their ceasing to hold office which they consider should be brought to the attention of the members or creditors of the CompanyAHI IN THE AGREED FORM;
(mD) revocation a certificate (which certificate shall in the absence of all existing authorities to manifest error be conclusive):-
(I) stating the bankers number of the Company relating to bank accounts and the grant of authority to such persons as the Purchaser may nominate to operate the same;Consideration Shares; and
(nII) that all books, records and files attaching a print-out of Bloomberg showing the Company are in its possession or under its control and where any such are not at the Properties that the Purchaser is given details closing price of their whereabouts and any necessary authority to collect them;
(o) the delivery to the Purchaser a share of duly completed and executed transfers common stock of all shares par value $0.01 in the capital of Firstpoint Services Limited not registered in AHI for the name 20 consecutive trading days ended five consecutive trading days prior to 1 April 1997 (that is, ended on (and including) 24 March 1997); and
(E) a copy of the Companylock-up letter agreement made by way of letter dated 18 January 1996 from ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ to Kanders Florida Holdings, the statutory books and common seal (if any) of Firstpoint Services Limited and certificates for all of the issued shares in Firstpoint Services Limited.
4.3 Immediately following fulfilment of all the matters referred to in Clause 4.2 the Purchaser shall:Inc; and
(avi) procure that that part of the Consideration payable in cash on Completion is paid by bankers draft to Company forthwith repays the Vendor's Solicitors (who are hereby irrevocably authorised to receive that consideration) on behalf of the Vendor;Rothschild Loan; and
(b) deliver AHL shall pay to the Vendor's Institutional Vendors Solicitors a counterpart the sum of (pound)4,635,000, in full and final settlement of the Tax Covenant duly executed consideration due by the Purchaser;
(c) if requested, and at the Vendor's cost, deliver AHL to the Vendor's Solicitors a legal opinion in a form reasonably satisfactory to Institutional Vendors for the Vendor as to the validity and enforceability of the guarantee contained within Clause 11 of this Agreement and if such opinion is that such guarantee is not valid and enforceable such amendments Preference Shares, which sum shall be made paid by telegraphic transfer to the guarantee as render it valid and enforceable; and
(d) as agent for the CompanyNational Westminster Bank plc, repay the InterCity of London office, ▇▇ ▇▇▇ ▇▇▇▇▇, ▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇, sort code: 60-Company Debt by bankers draft to the Vendor's Solicitors (who are hereby irrevocably authorised to receive that payment) on behalf of the Vendor and its subsidiaries and Associates. The delivery of a bankers draft to the Vendor's Solicitors shall be a full and sufficient discharge to the Purchaser for the monies payable on Completion and the Purchaser shall not be concerned to see to the application of any payment by the Purchaser under this Clause 4.300-01, account no: ▇▇▇▇▇▇▇▇.
4.4 If all the provisions of Clause 4.2 are not complied with in full on Completion the Purchaser may:
(a) defer Completion to a date not more than 28 days after the date specified in Clause 4.1 in which event the provisions of this Clause 4.4 shall apply to Completion as so deferred; or
(b) proceed to Completion so far as practicable without prejudice to its rights under this Agreement or otherwise and so that any provision of Clause 4.2 which may not have been complied with at Completion shall at the sole discretion of the Purchaser be held over to such future date or dates as the Purchaser may in its sole discretion determine; or
(c) terminate this Agreement (save for Clauses 12, 13, 14 and 20, which shall remain in full force and effect) provided that such termination shall not affect the rights and obligations of the parties which have accrued prior to termination and shall not limit or exclude any other rights or remedies of the Purchaser in respect of any failure by the Vendor to comply with the requirements of Clause 4.2 on the due date.
4.5 The Vendor shall use all reasonable endeavours to procure compliance with the provisions of Clause 4.2 on any date set for Completion in accordance with this Agreement.
4.6 The Vendor undertakes to and covenants with the Purchaser (for itself and as trustee for the Company) that if, after Completion, it is discovered that the Company had on or before Completion given or undertaken any guarantees, indemnities or similar securities in respect of the obligations or liabilities of any person other than the Company and such guarantees, indemnities or similar securities were not finally and unconditionally released on or before Completion, the Vendor will fully indemnify the Purchaser and the Company and keep each of them fully indemnified on demand against all claims, demands, actions, proceedings, damages, losses, costs, expenses or liabilities suffered or incurred by the Purchaser or the Company under or in connection with such guarantees, indemnities or similar obligations.
Appears in 1 contract
Sources: Agreement for the Sale and Purchase of Shares (Armor Holdings Inc)
Completion. 4.1 Completion shall take place at the offices of the Purchaser's Solicitors immediately following the signing signature and exchange of this Agreement or at such other place or time as the Vendor and the Purchaser may agree.
4.2 At Completion the Vendor shall procurewhen:
(a) the delivery Sellers shall deliver or cause to be delivered to the Purchaser of duly completed and executed Purchasers (as appropriate):
(i) transfers of the Shares by the registered holders of the Shares duly completed in favour of either Marquee Inc. or Marquee UK (as appropriate) or as it may direct;
(ii) the Purchaser or its nominees together with valid share certificates representing the Shares and all (if any) other documents required to give good title to the Shares;
(b) the delivery to the Purchaser of powers of attorney or an express indemnity in the agreed a form duly executed by the registered holders of the Shares;
(c) the delivery to the Purchaser of the Tax Covenant duly executed by the Vendor;
(d) the delivery to the Purchaser of the following, each duly executed and in form and substance satisfactory to the Purchaser:-
(i) a deed Purchasers in the case of release given in relation any found to the Company Guarantee;
(ii) a deed of release by each person holding or being entitled to any Encumbrance over the Shares or any of the assets of the Companybe missing);
(iii) a deed all the Statutory and Minute Books of waiver by the Vendor waiving any claim it or any Company and its Common Seal and the Certificates of its subsidiaries or Associates may have against the CompanyIncorporation on Change of Names (if any);
(iv) deeds of waiver the Tax Deed duly executed by each co-guarantor 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 respect of the Company Guarantee;
sub-clause (ed) the delivery to the Purchaser of the statutory books (duly written up to date) and the certificate(s) of incorporation of the Company;
(f) the delivery to the Purchaser of all current cheque books and deposit books relating to all bank accounts of the Company;
(g) the delivery to the Purchaser of all documents of title relating to the Properties;
(h) the delivery to the Purchaser of copies of the minutes of the meetings of the boards of directors of the Vendor in the agreed form, authorising (in each case) the entry into of the transaction the subject of this Agreement, approving this Agreement and any other agreements or documents to be executed pursuant to or in connection with it and appointing the relevant signatory to sign this Agreement and such other agreements and documents on their behalf certified by the company secretary of the Vendor together with (in each case) confirmation, in the agreed formbelow, from the company secretary that the authority conferred remains valid at Completion;
(i) the passing of effective resolutions of the Directors resolving to register the transfers of the Shares subject only to stamping of the share transfers;
(j) (at the cost of the Vendor) the convening and holding of all such meetings, the passing of all such resolutions, the execution and delivery of all such documents and the taking of all other action to the extent reasonably necessary in order to complete the transfer of title to the Shares to the Purchaser free from all Encumbrances and to enable the Purchaser to exercise and receive all rights and benefits attaching to or arising from the Shares;
(k) with effect from Completion, the appointment as directors and secretary of the Company of such person or persons as the Purchaser shall have nominated and the resignation of each of the Directors (except ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ resigning office as Director 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 notice of the members or creditors of the Company and that there are no fees due to them;
(vii) the letter terminating the employment of ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇ as an employee of the Company;
(viii) the Property Licence duly executed by ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ and ▇▇▇ ▇. Holmes;
(ix) the Service Agreement, duly executed by ▇▇▇ ▇▇▇▇▇▇;
(x) and the secretary Consultancy Agreement, duly executed by ▇▇▇▇▇ ▇▇▇▇▇▇▇▇; and
(xi) 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 been satisfied in full prior to the Effective Date;
(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 the Effective Date;
(d) the Sellers shall cause a meeting of the Board of the Company by delivery of a letter under seal from each such Director and to be held at which the secretary resigning from his offices and from any employment he may have with the Company with effect from Completion and acknowledging that he has no claim against the Company either actual or contingent in respect of any cause matter or thing (statutory or otherwise);Board shall:-
(li) appoint such persons as the resignation of the auditors of the Company (without compensation for loss of office or any other claim save for proper professional fees for services rendered in respect of their duties Purchasers may nominate as auditors prior to the completion of the 1997 Audit) with effect from completion of the 1997 Audit Directors and the delivery of a statement by them that there are no circumstances connected with their ceasing to hold office which they consider should be brought to the attention of the members or creditors Secretary of the Company;
(mii) revocation accept the letters of all existing authorities resignation referred to in sub-clause (a)(v) and (a)(vi) above;
(iii) vote in favour of the bankers registration of the Purchasers and/or their nominees as members of the Company relating subject only to bank accounts the production of duly stamped and completed transfers in favour of the grant Purchasers and/or their nominees in respect of authority to such persons as the Purchaser may nominate to operate the sameShares;
(niv) that all books, records and files of the Company are in its possession or under its control and where any such are not at the Properties that the Purchaser is given details of their whereabouts and any necessary authority to collect themappoint Ernst & Young as auditors;
(oe) the delivery parties shall join in procuring that all existing bank mandates in force for the Company shall be altered (in such manner as the Purchasers shall at Completion require) so as (inter alia) to reflect the Purchaser resignations and appointments referred to above.
(f) the Purchasers shall not be obliged to complete this Agreement unless the Sellers comply fully with the requirements of duly completed paragraphs (a), (b), (d), and executed transfers of all shares in the capital of Firstpoint Services Limited not registered in the name of the Company, the statutory books and common seal (if anye) of Firstpoint Services Limited and certificates for all of the issued shares in Firstpoint Services Limited.this Clause;
4.3 Immediately following fulfilment 4.2 Upon completion of all the matters referred to in Clause 4.2 the Purchaser sub-clause 4.1 Marquee UK shall:
(a) procure that that part of the Consideration payable in cash on Completion is paid by bankers draft pay to the Vendor's Sellers' Solicitors (who are hereby irrevocably authorised to receive that considerationwhose receipt shall be a sufficient discharge therefor) on behalf the Cash Consideration by way of the Vendortelegraphic transfer;
(b) deliver to the Vendor's Sellers' Solicitors a duly executed counterpart of the Tax Covenant duly executed by the PurchaserDeed;
(c) if requested, and at the Vendor's cost, deliver to the Vendor's Sellers' Solicitors a legal opinion duly executed counterpart of the Disclosure Letter.
4.3 Upon Completion of all the matters referred to in a form reasonably satisfactory sub-clause 4.1 Marquee Inc. shall:
(a) allot the Initial Consideration Shares and issue the Loan Notes to the Vendor as Sellers and deliver to the validity and enforceability Sellers' Solicitors definitive share certificates in respect of the guarantee contained within Clause 11 Initial Consideration Shares and certificates in the agreed terms in respect of this Agreement and if such opinion is that such guarantee is not valid and enforceable such amendments shall be made to the guarantee as render it valid and enforceableLoan Notes in the names of the Sellers; and
(db) as agent for the Company, repay the Inter-Company Debt by bankers draft deliver to the Vendor's Sellers' Solicitors a duly executed counterpart of:
(who are hereby irrevocably authorised to receive that paymenti) on behalf of the Vendor and its subsidiaries and Associates. The delivery of a bankers draft to Tax Deed;
(ii) the Vendor's Solicitors shall be a full and sufficient discharge to Property Licence;
(iii) the Purchaser for Service Agreement;
(iv) the monies payable on Completion and Consultancy Agreement; and
(v) the Purchaser Disclosure Letter;
(c) the Sellers shall not be concerned obliged to see to complete this Agreement unless the application Purchasers have complied fully with their respective requirements of any payment by the Purchaser under Clause 4.2 and paragraphs (a) and (b) of this Clause 4.3Clause.
4.4 If in any respect either the Sellers or the Purchasers fail to comply with all the provisions of Clause Clauses 4.1, 4.2 are not complied with in full and 4.3 on the date for Completion then the Purchaser other of them may:
(a) defer Completion to a date not more than 28 days after the date specified in for Completion set by this Clause 4.1 in which event 4 (and so that the provisions of this Clause sub-clause 4.4 shall apply to Completion as so deferred); or
(b) proceed to Completion so as far as practicable without prejudice to its rights under this Agreement or otherwise and so that any provision of Clause 4.2 which may not have been complied with at Completion shall at the sole discretion of the Purchaser be held over to such future date or dates as the Purchaser may in its sole discretion determinepracticable; or
(c) terminate rescind this Agreement (save for Clauses 12, 13, 14 and 20, which shall remain in full force and effect) provided that such termination shall not affect the without prejudice to its accrued rights and obligations of the parties which have accrued prior to termination and shall not limit or exclude any other rights or remedies of the Purchaser in respect of any failure by the Vendor to comply with the requirements of Clause 4.2 on the due dateremedies).
4.5 The Vendor Marquee Inc. shall use all reasonable endeavours to procure compliance with the provisions of Clause 4.2 on as soon as reasonably practicable following Completion (and in any date set for Completion in accordance with this Agreement.
4.6 The Vendor undertakes to and covenants with the Purchaser (for itself and as trustee for the Company) that if, event within 7 days after Completion, it is discovered that ) the Company had on or before Completion given or undertaken any guarantees, indemnities or similar securities in respect full and unconditional release of the obligations or liabilities of any person other than the Company Personal Guarantees and such guarantees, indemnities or similar securities were not finally and unconditionally released on or before Completion, the Vendor will Marquee Inc. shall fully indemnify the Purchaser Warrantors and the Company Struan ▇▇▇▇▇▇▇▇ and keep each ▇▇▇ ▇. Holmes against any liability, loss, cost or claim arising out of them fully indemnified on demand against all claims, demands, actions, proceedings, damages, losses, costs, expenses or liabilities suffered or incurred by the Purchaser or the Company under or in connection with such guarantees, indemnities or similar obligationsthe Personal Guarantees at any time after the Effective Date.
Appears in 1 contract
Completion. 4.1 5.1 Subject to the provisions of Clause 4, Completion shall take place at the offices of the Purchaser's Solicitors immediately following at 9.00am on the signing of this Agreement Completion Date or at such other place or and time as shall be mutually agreed, where all (and not some only) of the Vendor and the Purchaser may agreeevents described in this Clause 5 shall occur.
4.2 5.2 At Completion Completion, the Vendor shall procuredeliver or cause to be delivered to the Purchaser:
(a) duly executed instrument of transfer in respect of the delivery Sale Shares in favour of the Purchaser (or its nominees) accompanied by the relevant share certificates in respect of the Sale Shares;
(b) certified true copies of the resolutions passed by the board of directors of the Vendor in the form set out in Appendix K;
(i) approving the sale of the Sale Shares to the Purchaser of duly completed and executed transfers in the terms set out in this Agreement; and
(ii) authorising the execution of the instrument of transfer in respect of the Sale Shares in favour of the Purchaser and giving authority to execute the instrument of transfer on behalf of the Vendor to the party who executed it; and
(iii) authorising the execution and delivery by the registered holders Vendor of each of this Agreement, the Tenancy Agreement, the Employment Contracts, the Subcontract, the Services Agreement, the Shareholders' Agreement and the Deed of Indemnity;
(c) certified true copies of the resolutions in the form set out in Appendix J passed by the board of directors of the Company:
(i) approving the transfer of the Sale Shares to the Purchaser, or the transfer of all or any part of the Sale Shares to a nominee appointed by the Purchaser;
(ii) approving the entering in the register of members of the Company, the name of the Purchaser or that of its nominee as holder of the Sale Shares, upon the presentation of the instrument of transfer duly stamped in accordance with the Stamp Act; and
(iii) authorising the issue of the new share certificate in respect of the Sale Shares in favour of the Purchaser or its nominees such nominee of the Purchaser and the cancellation of the existing share certificates for the Sale Shares.
(d) a duly completed and executed Stamp Duty Form - PDS 6 together with valid share certificates representing the Shares and all Audited Accounts of the Company;
(if anye) such waivers or consents or other documents as may be required to give to the Purchaser good title to the Sale Shares and to enable the Purchaser or its nominees to be registered as the holders of any of the Sale Shares;
(bf) all the delivery statutory and other books and records (including financial records) duly written and updated of the Company and their respective certificate(s) of incorporation, current business registration certificate(s) (if applicable) and common seal(s) and any other papers, records and documents of the Company;
(g) deeds executed by the Vendor confirming that the Vendor has no claim against the Company and if there are any claims that the Vendor shall release and disclaim all their rights to such claims, which letter shall be in the form set out in Appendix B;
(h) execute and deliver to the Purchaser of powers of attorney a certificate (the "Vendor's Completion Certificate") which shall be in the agreed form duly executed by set out in Appendix P, setting forth the registered holders Vendor's representations and warranties that:
(i) each of the SharesWarranties in Schedule 6 was accurate in all respects as of the date of this Agreement;
(cii) each of the Warranties in Schedule 6 is accurate in all respects as of the Completion Date as if made on the Completion Date;
(iii) each of the covenants and obligations that the Vendor is required to have complied with or performed pursuant to this Agreement at or prior to Completion has been duly complied with and performed in all respects;
(iv) each of the conditions set forth in Clause 4.1 has been satisfied in all respects; and
(v) the delivery to the Purchaser Vendor is not aware of any matter or thing which is in breach of or inconsistent with any of the Tax Covenant Warranties in Schedule 6;
(i) the Deed of Indemnity duly executed by the Vendor;
(dj) the delivery to the Purchaser of the following, each Tenancy Agreement duly executed by the Vendor and in form and substance satisfactory to the Purchaser:-
(i) a deed of release given in relation to the Company Guarantee;
(ii) a deed of release by each person holding or being entitled to any Encumbrance over the Shares or any of the assets of the Company;
(iiik) a deed of waiver the Employment Contracts duly executed by the Vendor waiving any claim it or any of its subsidiaries or Associates may have against the Company;
(iv) deeds of waiver by each co-guarantor of the Company in respect of the Company Guarantee;
(e) the delivery to the Purchaser of the statutory books (duly written up to date) and the certificate(s) of incorporation of the Company;
(f) the delivery to the Purchaser of all current cheque books and deposit books relating to all bank accounts of the Company;
(g) the delivery to the Purchaser of all documents of title relating to the Properties;
(h) the delivery to the Purchaser of copies of the minutes of the meetings of the boards of directors of the Vendor in the agreed form, authorising (in each case) the entry into of the transaction the subject of this Agreement, approving this Agreement and any other agreements or documents to be executed pursuant to or in connection with it and appointing the relevant signatory to sign this Agreement and such other agreements and documents on their behalf certified by the company secretary of the Vendor together with (in each case) confirmation, in the agreed form, from the company secretary that the authority conferred remains valid at Completion;
(i) the passing of effective resolutions of the Directors resolving to register the transfers of the Shares subject only to stamping of the share transfers;
(j) (at the cost of the Vendor) the convening and holding of all such meetings, the passing of all such resolutions, the execution and delivery of all such documents and the taking of all other action to the extent reasonably necessary in order to complete the transfer of title to the Shares to the Purchaser free from all Encumbrances and to enable the Purchaser to exercise and receive all rights and benefits attaching to or arising from the Shares;
(k) with effect from Completion, the appointment as directors and secretary of the Company of such person or persons as the Purchaser shall have nominated and the resignation of each of the Directors (except ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ and ▇▇▇▇ ▇▇▇▇▇) and the secretary of the Company by delivery of a letter under seal from each such Director and the secretary resigning from his offices and from any employment he may have with the Company with effect from Completion and acknowledging that he has no claim against the Company either actual or contingent in respect of any cause matter or thing (statutory or otherwise)Key Employees;
(l) the resignation of the auditors of Subcontract duly executed by the Company (without compensation for loss of office or any other claim save for proper professional fees for services rendered in respect of their duties as auditors prior to the completion of the 1997 Audit) with effect from completion of the 1997 Audit and the delivery of a statement by them that there are no circumstances connected with their ceasing to hold office which they consider should be brought to the attention of the members or creditors of the CompanyVendor;
(m) the Services Agreement duly executed by the Company and the Vendor; and
(n) cause such persons as the Purchaser may nominate to be validly appointed as directors of the Company and upon such appointment forthwith cause the Directors other than the Continuing Directors and the company secretary of the Company to resign from their respective offices, each delivering to the Purchaser a letter addressed to the Company acknowledging that the person so resigning has no claim outstanding for compensation or otherwise against the Company, and if there are any claims, that they shall release and disclaim all their rights to such claims, which letter shall be in the form set out in Appendix A; and
(o) evidence that the Vendor has procured the revocation of all existing authorities to the bankers of the Company relating to bank accounts and procure the grant giving of authority to such persons as the Purchaser may nominate to operate the same;
(np) a document signed by the Vendor confirming that at Completion the Vendor has been repaid or has discharged in full all books, records and files of Shareholder's Loan owed by the Company are in its possession or under its control and where any such are not at the Properties that the Purchaser is given details of their whereabouts and any necessary authority to collect them;
(o) the delivery to the Purchaser of duly completed and executed transfers of all shares in the capital of Firstpoint Services Limited not registered in the name of the Company, the statutory books and common seal (if any) of Firstpoint Services Limited and certificates for all of the issued shares in Firstpoint Services LimitedVendor or vice versa.
4.3 Immediately following fulfilment of all 5.3 At Completion, and upon compliance with the matters referred to provisions set out in Clause 4.2 Clauses 2.2 and 5.2, the Purchaser shall:
(a) procure that that part of the Consideration payable in cash on Completion is paid by bankers draft to the Vendor's Solicitors (who are hereby irrevocably authorised to receive that consideration) on behalf of the Vendor;
(b) deliver to the Vendor's Solicitors Company:
(i) an unconditional application in writing for the allotment to the Purchaser of 191,025 Shares at the premium of approximately RM54.55 per share for a counterpart total amount of the Tax Covenant duly executed by Subscription Share Consideration, in the Purchaser;
(c) if requested, and at the Vendor's cost, deliver to the Vendor's Solicitors a legal opinion form set out in a form reasonably satisfactory to the Vendor as to the validity and enforceability of the guarantee contained within Clause 11 of this Agreement and if such opinion is that such guarantee is not valid and enforceable such amendments shall be made to the guarantee as render it valid and enforceableAppendix L; and
(dii) as agent for part of the Subscription Shares Consideration in the amount stated in Clause 3.3 of this Agreement in favour of the Company (whose receipt shall be an absolute discharge therefor) either by bankers' draft or by telegraphic transfer into the designated bank account of the Company, repay the Inter-Company Debt by bankers draft to the Vendor's Solicitors (who are hereby irrevocably authorised to receive that payment) on behalf of the Vendor and its subsidiaries and Associates. The delivery of a bankers draft to the Vendor's Solicitors shall be a full and sufficient discharge to the Purchaser for the monies payable on Completion and the Purchaser shall not be concerned to see to the application of any payment by the Purchaser under this Clause 4.3.
4.4 If all the provisions of Clause 4.2 are not complied with in full on Completion the Purchaser may:
(a) defer Completion to a date not more than 28 days after the date specified in Clause 4.1 in which event the provisions of this Clause 4.4 shall apply to Completion as so deferred; or
(b) proceed to Completion so far as practicable without prejudice to its rights under this Agreement or otherwise and so that any provision of Clause 4.2 which may not have been complied with at Completion shall at the sole discretion of the Purchaser be held over to such future date or dates as the Purchaser may in its sole discretion determine; or
(c) terminate this Agreement (save for Clauses 12, 13, 14 and 20, which shall remain in full force and effect) provided that such termination shall not affect the rights and obligations of the parties which have accrued prior to termination and shall not limit or exclude any other rights or remedies of the Purchaser in respect of any failure by the Vendor to comply with the requirements of Clause 4.2 on the due date.
4.5 The Vendor shall use all reasonable endeavours to procure compliance with the provisions of Clause 4.2 on any date set for Completion in accordance with this Agreement.
4.6 The Vendor undertakes to and covenants with the Purchaser (for itself and as trustee for the Company) that if, after Completion, it is discovered that the Company had on or before Completion given or undertaken any guarantees, indemnities or similar securities in respect of the obligations or liabilities of any person other than the Company and such guarantees, indemnities or similar securities were not finally and unconditionally released on or before Completion, the Vendor will fully indemnify the Purchaser and the Company and keep each of them fully indemnified on demand against all claims, demands, actions, proceedings, damages, losses, costs, expenses or liabilities suffered or incurred by the Purchaser or the Company under or in connection with such guarantees, indemnities or similar obligations.,
Appears in 1 contract
Sources: Share Purchase and Subscription Agreement (Asia Online LTD)
Completion. 4.1 Subject to the fulfilment or a waiver of the conditions set out in Clause 3.1, Completion shall take place on the Completion Date at the offices of the Purchaser's Solicitors immediately following the signing of this Agreement or at such other place or time as the Vendor and the Purchaser may agree.
4.2 At Completion the Vendor shall procure:
(a) the delivery to the Purchaser of duly completed and executed transfers of the Shares by the registered holders of the Shares in favour of the Purchaser or its nominees together with valid share certificates representing the Shares and all (if any) other documents required to give good title to the Shares;
(b) the delivery to the Purchaser of powers of attorney in the agreed form duly executed by the registered holders of the Shares;
(c) the delivery to the Purchaser of the Tax Covenant duly executed by the Vendor;
(d) the delivery to the Purchaser of the following, each duly executed and in form and substance satisfactory to the Purchaser:-
(i) a deed of release given in relation to the Company Guarantee;
(ii) a deed of release by each person holding or being entitled to any Encumbrance over the Shares or any of the assets of the Company;
(iii) a deed of waiver by the Vendor waiving any claim it or any of its subsidiaries or Associates may have against the Company;
(iv) deeds of waiver by each co-guarantor of the Company in respect of the Company Guarantee;
(e) the delivery to the Purchaser of the statutory books (duly written up to date) and the certificate(s) of incorporation of the Company;
(f) the delivery to the Purchaser of all current cheque books and deposit books relating to all bank accounts of the Company;
(g) the delivery to the Purchaser of all documents of title relating to the Properties;
(h) the delivery to the Purchaser of copies of the minutes of the meetings of the boards of directors of the Vendor in the agreed form, authorising (in each case) the entry into of the transaction the subject of this Agreement, approving this Agreement and any other agreements or documents to be executed pursuant to or in connection with it and appointing the relevant signatory to sign this Agreement and such other agreements and documents on their behalf certified by the company secretary of the Vendor together with (in each case) confirmation, in the agreed form, from the company secretary that the authority conferred remains valid at Completion;
(i) the passing of effective resolutions of the Directors resolving to register the transfers of the Shares subject only to stamping of the share transfers;
(j) (at the cost of the Vendor) the convening and holding of all such meetings, the passing of all such resolutions, the execution and delivery of all such documents and the taking of all other action to the extent reasonably necessary in order to complete the transfer of title to the Shares to the Purchaser free from all Encumbrances and to enable the Purchaser to exercise and receive all rights and benefits attaching to or arising from the Shares;
(k) with effect from Completion, the appointment as directors and secretary of the Company of such person or persons as the Purchaser shall have nominated and the resignation of each of the Directors (except ▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ ▇▇▇▇at 35th Floor, ▇▇▇▇▇▇ Kong Center, ▇ ▇▇▇▇▇'▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇ and , ▇▇▇▇ ▇▇▇▇ when all (but not part only) of the following businesses shall be transacted:- the Seller shall:- deliver to the Purchaser a duly executed instrument of transfer and the share certificate(s) relating to the Purchased Shares; deliver to the Purchaser certified true copies of the minutes of a meeting of the board of directors of the Seller approving this Agreement and all matters contemplated hereunder and evidencing the authority of the person(s) executing this Agreement and of N Ltd approving the transfer of the Purchased Shares and appointing the new director as the Purchaser may nominate pursuant to Clause 4.1(A)(3); and cause one person as the Purchaser may nominate as director of N Ltd with effect from Completion. the Purchaser shall:- allot and issue to the Seller the Consideration Shares; deliver to the Seller definitive share certificate(s) in respect of the Consideration Shares in board lots issued in the name of the Seller, or HKSCC Nominees Limited if so designated by the Sellers; and deliver to the Seller a certified true copy of the minutes of a meeting of the board of directors of the Purchaser approving this Agreement and all matters contemplated hereunder and evidencing the authority of the person(s) executing this Agreement. The Purchaser shall: cause the three persons as the Seller may nominate and the one person as QPL may nominate in addition to the two existing executive directors of the Purchaser to be validly appointed as executive directors of the Purchaser with effect from the Completion Date; cause such existing non-executive directors of the Purchaser (save for Mr Ku ▇▇▇▇ ▇▇▇) and the secretary of the Company by delivery of a letter under seal from each such Director and the secretary resigning from his offices and from any employment he may have with the Company to resign with effect from Completion and acknowledging Date in each case, each delivering to the Seller under seal confirmations that he he/she has no claim against the Company either actual or contingent in respect relevant member(s) of any cause matter or thing (statutory the HFG Group for compensation or otherwise);
(l) the resignation of the auditors of the Company (without compensation for loss of office or any other claim save for proper professional fees for services rendered , in respect of their duties as auditors prior a form reasonably acceptable to the completion of the 1997 Audit) with effect from completion of the 1997 Audit and the delivery of a statement by them that there are no circumstances connected with their ceasing to hold office which they consider should be brought to the attention of the members or creditors of the Company;
(m) revocation of all existing authorities to the bankers of the Company relating to bank accounts and the grant of authority to Seller; cause two such persons as the Purchaser Seller may nominate to operate be validly appointed as independent non-executive directors of the same;
Purchaser (nin addition to the three persons nominated by the Seller under Clause 4.2(A)) that all booksand cause such persons to be appointed to the audit committee of the Purchaser; cause ▇▇. ▇▇▇ Chun ▇▇▇, records ▇▇▇▇▇▇▇▇ or such other person as he may nominate to be validly appointed as chief executive officer of the Purchaser and files of N Information and the other Subsidiaries of the Company which are engaged in its possession or under its control and where any Internet-related businesses (other than ▇▇▇▇▇▇▇.▇▇▇ Inc.) respectively; cause such are not at persons as the Properties that Seller may nominate to be validly appointed to a new management team of the Purchaser is given details of their whereabouts and any necessary authority to collect them;
manage the Internet-related businesses (oother than ▇▇▇▇▇▇▇.▇▇▇ Inc.) the delivery to the Purchaser of duly completed and executed transfers of all shares in the capital of Firstpoint Services Limited not registered in the name of the Company, the statutory books and common seal (if any) of Firstpoint Services Limited and certificates for all of the issued shares Purchaser. If in Firstpoint Services Limited.
4.3 Immediately following fulfilment of all the matters referred to in Clause 4.2 the Purchaser shall:
(a) procure that that part of the Consideration payable in cash on Completion is paid by bankers draft to the Vendor's Solicitors (who are hereby irrevocably authorised to receive that consideration) on behalf of the Vendor;
(b) deliver to the Vendor's Solicitors a counterpart of the Tax Covenant duly executed by the Purchaser;
(c) if requested, and at the Vendor's cost, deliver to the Vendor's Solicitors a legal opinion in a form reasonably satisfactory to the Vendor as to the validity and enforceability of the guarantee contained within Clause 11 of this Agreement and if such opinion is that such guarantee is not valid and enforceable such amendments shall be made to the guarantee as render it valid and enforceable; and
(d) as agent for the Company, repay the Inter-Company Debt by bankers draft to the Vendor's Solicitors (who are hereby irrevocably authorised to receive that payment) on behalf of the Vendor and its subsidiaries and Associates. The delivery of a bankers draft to the Vendor's Solicitors shall be a full and sufficient discharge to the Purchaser for the monies payable on Completion and the Purchaser shall not be concerned to see to the application of any payment by the Purchaser under this Clause 4.3.
4.4 If all respect the provisions of Clause 4.2 4.1 are not complied with in full on Completion by the Seller or the Purchaser (as the case may be) on or before the Completion Date, or if at any time prior to Completion any of the Seller Warranties or the Purchaser Warranties is found to be untrue or incorrect in any material respect as at the date of its being made or if the Purchaser or the Seller has not complied in any material respect with its obligations under Clause 8.1 and Clause 9.1, without prejudice to any other remedies available to the Party not in default, the Party not in default may:
(a) : defer Completion to a date not more than 28 14 days after the date specified in Clause 4.1 in which event Completion Date (and so that the provisions of this Clause 4.4 4.3 shall apply to Completion as so deferred); or
(b) or proceed to Completion so far as practicable (without prejudice to its rights under this Agreement Agreement); or otherwise and so that any provision of Clause 4.2 which may not have been complied with at Completion shall at the sole discretion of the Purchaser be held over to such future date or dates as the Purchaser may in its sole discretion determine; or
(c) terminate this Agreement (save for Clauses 12, 13, 14 and 20, which shall remain in full force and effect) provided that such termination shall not affect the rights and obligations of the parties which have accrued prior to termination and shall not limit or exclude any other rights or remedies of the Purchaser in respect of any failure by the Vendor to comply with the requirements of Clause 4.2 on the due date.
4.5 The Vendor shall use all reasonable endeavours to procure compliance with the provisions of Clause 4.2 on any date set for Completion in accordance with rescind this Agreement.
4.6 The Vendor undertakes to and covenants with the Purchaser (for itself and as trustee for the Company) that if, after Completion, it is discovered that the Company had on or before Completion given or undertaken any guarantees, indemnities or similar securities in respect of the obligations or liabilities of any person other than the Company and such guarantees, indemnities or similar securities were not finally and unconditionally released on or before Completion, the Vendor will fully indemnify the Purchaser and the Company and keep each of them fully indemnified on demand against all claims, demands, actions, proceedings, damages, losses, costs, expenses or liabilities suffered or incurred by the Purchaser or the Company under or in connection with such guarantees, indemnities or similar obligations.
Appears in 1 contract
Completion. 4.1 5.1 Completion shall take place at on the offices of the Purchaser's Solicitors immediately following the signing of this Agreement or at such other place or time as the Vendor and the Purchaser may agreeCompletion Date.
4.2 5.2 At Completion the Vendor Seller shall procuredeliver or cause to be delivered:
(a) the delivery to the Purchaser of duly completed and executed transfers transfer of the Sale Shares by in such form as is necessary for the registered holders Buyer to acquire legal ownership of the Sale Shares in favour accordance with the laws of the Purchaser or its nominees together with valid share certificates representing the Shares and all (if any) other documents required to give good title to the SharesIceland;
(b) the delivery to the Purchaser of powers of attorney in the agreed form duly executed by the registered holders share registry of the SharesCompany confirming that the Buyer has been registered as the owner of the Sale Shares and that the Sale Shares are free from all Encumbrances;
(c) the delivery to the Purchaser written resignation of all of the Tax Covenant duly executed by the Vendor;
(d) the delivery to the Purchaser of the following, each duly executed and in form and substance satisfactory to the Purchaser:-
(i) a deed of release given in relation to the Company Guarantee;
(ii) a deed of release by each person holding or being entitled to any Encumbrance over the Shares or any of the assets directors of the Company;
(iiid) a deed waiver of waiver by the Vendor waiving any claim it pre-emption rights or any of its subsidiaries or Associates other restrictions on transfer which may have against the Company;
(iv) deeds of waiver by each co-guarantor of the Company exist in respect of the Sale Shares under the articles of association of the Company Guaranteeor otherwise, and any other document or consent necessary to enable the Buyer to be registered as the holder of the Sale Shares;
(e) the delivery to the Purchaser of the statutory books (duly written up to date) and the certificate(s) of incorporation of the Company;
(f) the delivery to the Purchaser of all current cheque books and deposit books relating to all bank accounts of the Company;
(g) the delivery to the Purchaser of all documents of title relating to the Properties;
(h) the delivery to the Purchaser of copies a copy of the minutes of the meetings a meeting of the boards board of directors of the Vendor in Seller authorising the agreed form, authorising (in each case) execution by the entry into of the transaction the subject Seller of this Agreementagreement and all other documents ancillary to it or the Transactions, approving this Agreement and any other agreements or documents to be executed pursuant to or in connection with it and appointing the relevant signatory or signatories to sign execute this Agreement agreement and any such other agreements and documents on their behalf certified by the company secretary its behalf; and
(f) a copy of the Vendor together minutes of a meeting of the shareholders of the Seller authorising the Transaction and the Service Agreement in accordance with (in each case) confirmation, in article 70.a. of the agreed form, from Companies Act.
5.3 On the company secretary Completion Date the Seller shall procure that the authority conferred remains valid at Completion;
(i) the passing of effective resolutions directors of the Directors resolving to register the transfers of the Shares subject only to stamping of the share transfers;
(j) (Company shall hold a board meeting at the cost of the Vendor) the convening and holding of all such meetings, the passing of all such resolutions, the execution and delivery of all such documents and the taking of all other action to the extent reasonably necessary in order to complete which the transfer of title to the Sale Shares to the Purchaser free from all Encumbrances Buyer shall be approved for registration in the Company’s shareholder register and to enable provide the Purchaser to exercise and receive all rights and benefits attaching to or arising from the Shares;
(k) with effect from Completion, the appointment as directors and secretary minutes of the Company of such person or persons as the Purchaser shall have nominated and the resignation of each meeting, signed by members of the Directors (except ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇board of directors, ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ and ▇▇▇▇ ▇▇▇▇▇) and the secretary of the Company by delivery of a letter under seal from each such Director and the secretary resigning from his offices and from any employment he may have with the Company with effect from Completion and acknowledging that he has no claim against the Company either actual or contingent in respect of any cause matter or thing (statutory or otherwise);
(l) the resignation of the auditors of the Company (without compensation for loss of office or any other claim save for proper professional fees for services rendered in respect of their duties as auditors prior to the completion of the 1997 Audit) with effect from completion of the 1997 Audit and the delivery of a statement by them that there are no circumstances connected with their ceasing to hold office which they consider should be brought to the attention of the members or creditors of the Company;
(m) revocation of all existing authorities to the bankers of the Company relating to bank accounts and the grant of authority to such persons as the Purchaser may nominate to operate the same;
(n) that all books, records and files of the Company are in its possession or under its control and where any such are not at the Properties that the Purchaser is given details of their whereabouts and any necessary authority to collect them;
(o) the delivery to the Purchaser of duly completed and executed transfers of all shares in the capital of Firstpoint Services Limited not registered in the name of the Company, the statutory books and common seal (if any) of Firstpoint Services Limited and certificates for all of the issued shares in Firstpoint Services LimitedBuyer.
4.3 Immediately following fulfilment of all 5.4 At Completion the matters referred to in Clause 4.2 the Purchaser Buyer shall:
(a) procure that that part of pay the Consideration payable in cash on Completion is paid Purchase Price, by bankers draft entering into an irrevocable subscription agreement with the Seller, with respect to the Vendor's Solicitors (who are hereby irrevocably authorised to receive that consideration) on behalf of the Vendor;Convertible Bond; and
(b) deliver a copy of the minutes of a meeting of the board of directors of the Buyer authorising the execution by the Buyer of this agreement and all other documents ancillary to it or the Transactions, the issuance of the Convertible Bond to the Vendor's Solicitors a counterpart of the Tax Covenant duly executed by the Purchaser;
(c) if requestedSeller, and at appointing the Vendor's cost, relevant signatory or signatories to execute this agreement and any such other documents on its behalf.
5.5 As soon as possible after Completion the Seller shall deliver to the Vendor's Solicitors a legal opinion in a form reasonably satisfactory Buyer all documents of title, records, correspondence, documents, files, memoranda and other documents relating to the Vendor as Company not required to the validity and enforceability of the guarantee contained within Clause 11 of this Agreement and if such opinion is that such guarantee is not valid and enforceable such amendments shall be made to the guarantee as render it valid and enforceable; and
(d) as agent for the Company, repay the Inter-Company Debt by bankers draft to the Vendor's Solicitors (who are hereby irrevocably authorised to receive that payment) on behalf of the Vendor and its subsidiaries and Associates. The delivery of a bankers draft to the Vendor's Solicitors shall be a full and sufficient discharge to the Purchaser for the monies payable on Completion and the Purchaser shall not be concerned to see to the application of any payment by the Purchaser under this Clause 4.3.
4.4 If all the provisions of Clause 4.2 are not complied with in full on Completion the Purchaser may:
(a) defer Completion to a date not more than 28 days after the date specified in Clause 4.1 in which event the provisions of this Clause 4.4 shall apply to Completion as so deferred; or
(b) proceed to Completion so far as practicable without prejudice to its rights under this Agreement or otherwise and so that any provision of Clause 4.2 which may not have been complied with delivered at Completion shall at the sole discretion of the Purchaser be held over to such future date or dates as the Purchaser may which are in its sole discretion determine; or
(c) terminate this Agreement (save for Clauses 12, 13, 14 and 20, which shall remain in full force and effect) provided that such termination shall not affect the rights and obligations of the parties which have accrued prior to termination and shall not limit or exclude any other rights or remedies of the Purchaser in respect of any failure by the Vendor to comply with the requirements of Clause 4.2 on the due datepossession.
4.5 The Vendor shall use all reasonable endeavours to procure compliance with the provisions of Clause 4.2 on any date set for Completion in accordance with this Agreement.
4.6 The Vendor undertakes to and covenants with the Purchaser (for itself and as trustee for the Company) that if, after Completion, it is discovered that the Company had on or before Completion given or undertaken any guarantees, indemnities or similar securities in respect of the obligations or liabilities of any person other than the Company and such guarantees, indemnities or similar securities were not finally and unconditionally released on or before Completion, the Vendor will fully indemnify the Purchaser and the Company and keep each of them fully indemnified on demand against all claims, demands, actions, proceedings, damages, losses, costs, expenses or liabilities suffered or incurred by the Purchaser or the Company under or in connection with such guarantees, indemnities or similar obligations.
Appears in 1 contract
Sources: Share Purchase Agreement (Alvotech)
Completion. 4.1 Completion shall take place on the Completion Date at the offices of the Purchaser's Solicitors immediately following the signing of this Agreement or at such other place or time as the Vendor and the Purchaser may agreeSolicitors.
4.2 At Vendor's Obligations On Completion the Vendor shall procure:
Vendors shall: (aA) the delivery deliver to the Purchaser of Purchaser: (1) duly completed and executed transfers of the Sale Shares by the registered holders of the Shares thereof in favour of the Purchaser or its nominees together with valid the relative share certificates representing the Shares and all certificates; (if any2) other documents required to give good title to the Shares;
(b) the delivery to such waivers or consents as the Purchaser may require to enable the Purchaser or its nominees to be registered as holders of the Sale Shares; and (3) powers of attorney in an agreed form; (B) procure that the agreed form duly executed by Directors (other than the registered holders Continuing Directors) and the secretary or secretaries of the Shares;
(c) Company and the delivery Subsidiaries retire from all their offices and employments with the Company and the Subsidiaries, each delivering to the Purchaser a deed (in the agreed terms) made out in favour of the Tax Covenant duly executed Company and/or the Subsidiaries acknowledging that he has no claim outstanding for compensation or otherwise and without any payment under the Employment Rights A▇▇ ▇▇▇▇; (C) procure the resignation of the auditors of the Company and the Subsidiaries in accordance with s 293 of the Companies A▇▇ ▇▇▇▇, accompanied by a written statement pursuant to s 394 of that Act that there are no circumstances connected with their resignation which should be brought to the Vendor;
notice of the members or creditors of each such company and that no fees are due to them and deliver such resignation and statement to the Purchaser; (dD) the delivery deliver to the Purchaser of the following, each duly executed and in form and substance satisfactory to the Purchaser:-
(i) a deed of release given in relation to as agent for the Company Guarantee;
and the Subsidiaries: (ii1) a deed of release by each person holding or being entitled to any Encumbrance over the Shares or any of the assets of the Company;
(iii) a deed of waiver by the Vendor waiving any claim it or any of its subsidiaries or Associates may have against the Company;
(iv) deeds of waiver by each co-guarantor of the Company in respect of the Company Guarantee;
(e) the delivery to the Purchaser of all the statutory and other books (duly written up to date) of the Company and each of the Subsidiaries and its/their certificate(s) of incorporation, any certificates of incorporation on change of name and common seal(s); (2) certificates in respect of all issued shares in the capital of each of the Company;
(f) the delivery to the Purchaser Subsidiaries and transfers of all current cheque books and deposit books relating to all bank accounts of the Company;
(g) the delivery to the Purchaser of all documents of title relating to the Properties;
(h) the delivery to the Purchaser of copies of the minutes of the meetings of the boards of directors of the Vendor shares in the agreed form, authorising (in each case) the entry into of the transaction the subject of this Agreement, approving this Agreement and any other agreements or documents to be executed pursuant to or in connection with it and appointing the relevant signatory to sign this Agreement and such other agreements and documents on their behalf certified Subsidiary not held by the company secretary of the Vendor together with (Company in each case) confirmation, in the agreed form, from the company secretary that the authority conferred remains valid at Completion;
(i) the passing of effective resolutions of the Directors resolving to register the transfers of the Shares subject only to stamping of the share transfers;
(j) (at the cost of the Vendor) the convening and holding of all such meetings, the passing of all such resolutions, the execution and delivery of all such documents and the taking of all other action to the extent reasonably necessary in order to complete the transfer of title to the Shares to the Purchaser free from all Encumbrances and to enable the Purchaser to exercise and receive all rights and benefits attaching to or arising from the Shares;
(k) with effect from Completion, the appointment as directors and secretary of the Company favour of such person or persons as the Purchaser shall have nominated direct; (3) the title deeds to the Properties (4) (or procure the delivery of) service agreements, in the agreed terms, between [ ] and the resignation Company, [each] executed by [ ]; (E) procure a board meeting of the Company and of each of the Directors Subsidiaries to be held at which there shall be: (except ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇1) passed a resolution to register, ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ and ▇▇▇▇ ▇▇▇▇▇) and in the secretary of the Company by delivery of a letter under seal from each such Director and the secretary resigning from his offices and from any employment he may have with the Company with effect from Completion and acknowledging that he has no claim against the Company either actual or contingent in respect of any cause matter or thing (statutory or otherwise);
(l) the resignation of the auditors of the Company (without compensation for loss of office or any other claim save for proper professional fees for services rendered in respect of their duties as auditors prior to the completion of the 1997 Audit) with effect from completion of the 1997 Audit and the delivery of a statement by them that there are no circumstances connected with their ceasing to hold office which they consider should be brought to the attention of the members or creditors case of the Company;
(m) revocation of all existing authorities to , the bankers transfers of the Company relating Sale Shares and, in the case of the Subsidiaries, the share transfers referred to bank accounts in Sub-Clause (D)(2) and (subject only to due stamping) to register, in the grant register of authority to members, each transferee as the holder of the shares concerned; (2) appointed as directors and/or secretary such persons as the Purchaser may nominate to operate (3) tendered and accepted the same;
(n) that all books, records resignations and files acknowledgements of the Company are in its possession or under its control directors and where any such are not at the Properties that the Purchaser is given details of their whereabouts and any necessary authority to collect them;
(o) the delivery to the Purchaser of duly completed and executed transfers of all shares in the capital of Firstpoint Services Limited not registered in the name of the Company, the statutory books and common seal (if any) of Firstpoint Services Limited and certificates for all of the issued shares in Firstpoint Services Limited.
4.3 Immediately following fulfilment of all the matters secretary referred to in Sub-Clause 4.2 (B) each such acceptance to take effect at the Purchaser shall:
(a) procure that that part close of the Consideration payable in cash on Completion is paid by bankers draft meeting; (4) revoked all existing authorities to the Vendor's Solicitors (who are hereby irrevocably authorised to receive that consideration) on behalf of the Vendor;
(b) deliver to the Vendor's Solicitors a counterpart of the Tax Covenant duly executed by the Purchaser;
(c) if requested, banks and at the Vendor's cost, deliver to the Vendor's Solicitors a legal opinion in a form reasonably satisfactory to the Vendor as to the validity and enforceability of the guarantee contained within Clause 11 of this Agreement and if such opinion is that such guarantee is not valid and enforceable such amendments new authorities shall be made to the guarantee as render it valid and enforceable; and
(d) as agent for the Company, repay the Inter-Company Debt by bankers draft to the Vendor's Solicitors (who are hereby irrevocably authorised to receive that payment) on behalf of the Vendor and its subsidiaries and Associates. The delivery of a bankers draft to the Vendor's Solicitors shall be a full and sufficient discharge to the Purchaser for the monies payable on Completion and the Purchaser shall not be concerned to see to the application of any payment by the Purchaser under this Clause 4.3.
4.4 If all the provisions of Clause 4.2 are not complied with in full on Completion the Purchaser may:
(a) defer Completion to a date not more than 28 days after the date specified in Clause 4.1 in which event the provisions of this Clause 4.4 shall apply to Completion as so deferred; or
(b) proceed to Completion so far as practicable without prejudice to its rights under this Agreement or otherwise and so that any provision of Clause 4.2 which may not have been complied with at Completion shall at the sole discretion of the Purchaser be held over given to such future date or dates banks and on such terms as the Purchaser may in its sole discretion determinedirect; or
(c5) terminate this Agreement (save for Clauses 12, 13, 14 and 20, which shall remain in full force and effect) provided that such termination shall not affect changed the rights and obligations situation of the parties which have accrued prior registered office and (subject to termination the Companies Acts) the accounting reference date, each as the Purchaser may direct; and shall not limit or exclude any other rights or remedies (6) tendered and accepted the resignation of the Purchaser in respect auditors and appointing [ ] as new auditors of any failure by the Vendor to comply with the requirements each of Clause 4.2 on the due date.
4.5 The Vendor shall use all reasonable endeavours to procure compliance with the provisions of Clause 4.2 on any date set for Completion in accordance with this Agreement.
4.6 The Vendor undertakes to and covenants with the Purchaser (for itself and as trustee for the Company) that if, after Completion, it is discovered that the Company had on or before Completion given or undertaken any guarantees, indemnities or similar securities in respect of the obligations or liabilities of any person other than the Company and such guarantees, indemnities or similar securities were not finally and unconditionally released on or before Completion, the Vendor will fully indemnify the Purchaser and the Company and keep each of them fully indemnified on demand against all claims, demands, actions, proceedings, damages, losses, costs, expenses or liabilities suffered or incurred by the Purchaser or the Company under or in connection with such guarantees, indemnities or similar obligations.Subsidiaries; and
Appears in 1 contract
Completion. 4.1 3.1 Completion shall take place at the offices of the Purchaser's Buyer’s Solicitors immediately following the signing of this Agreement (or at such other place or time as the Vendor and the Purchaser parties may agree) immediately after the execution of this agreement.
4.2 At 3.2 On Completion the Vendor Seller shall procuredeliver to or, if the Buyer shall so agree, make available to the Buyer:
(a) the delivery transfers in common form relating to the Purchaser of duly completed and executed transfers of all the Shares by the registered holders of the Shares duly executed in favour of the Purchaser Buyer (or its nominees together with valid share certificates representing the Shares and all (if any) other documents required to give good title to the Sharesas it may direct);
(b) the delivery a share certificate relating to the Purchaser Shares (or an indemnity in respect of powers of attorney a lost share certificate in a form reasonably acceptable to the agreed form duly executed by the registered holders of the SharesBuyer);
(c) the delivery to the Purchaser of the Tax Covenant duly executed by the Vendor;
(d) the delivery to the Purchaser of the following, each duly executed and in form and substance satisfactory to the Purchaser:-
(i) a deed of release given in relation to the Company Guarantee;
(ii) a deed of release by each person holding or being entitled to any Encumbrance over the Shares or any of the assets of the Company;
(iii) a deed of waiver by the Vendor waiving any claim it or any of its subsidiaries or Associates may have against the Company;
(iv) deeds of waiver by each co-guarantor of the Company in respect of the Company Guarantee;
(e) the delivery to the Purchaser of the statutory books (duly written up to date) and the certificate(s) of incorporation of the Company;
(f) the delivery to the Purchaser of all current cheque books and deposit books relating to all bank accounts of the Company;
(g) the delivery to the Purchaser of all documents of title relating to the Properties;
(h) the delivery to the Purchaser of copies of the minutes of the meetings of the boards of directors of the Vendor resignations in the agreed form, authorising (in each case) the entry into terms duly executed as deeds of the transaction the subject of this Agreement, approving this Agreement and any other agreements or documents to be executed pursuant to or in connection with it and appointing the relevant signatory to sign this Agreement and such other agreements and documents on their behalf certified by the company secretary of the Vendor together with (in each case) confirmation, in the agreed form, from the company secretary that the authority conferred remains valid at Completion;
(i) the passing of effective resolutions of the Directors resolving to register the transfers of the Shares subject only to stamping of the share transfers;
(j) (at the cost of the Vendor) the convening and holding of all such meetings, the passing of all such resolutions, the execution and delivery of all such documents and the taking of all other action to the extent reasonably necessary in order to complete the transfer of title to the Shares to the Purchaser free from all Encumbrances and to enable the Purchaser to exercise and receive all rights and benefits attaching to or arising from the Shares;
(k) with effect from Completion, the appointment as directors and secretary of the Company of such person or persons as the Purchaser shall have nominated and the resignation of each of the Directors (except J▇▇▇▇▇▇ ▇▇▇▇▇▇▇, D▇▇▇▇▇ ▇▇▇▇▇, D▇▇▇▇▇ ▇’▇▇▇▇▇, J▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇Lass from their offices as director or secretary of and their employment with any Group Company containing a confirmation that they have no claims (whether statutory, ▇▇contractual or otherwise) against any Group Company;
(d) the common seals, certificates of incorporation and statutory books, share certificate books and cheque books of each Group Company;
(e) the Tax Deed duly executed by the Seller;
(f) all leases, title deeds and other documents relating to the Properties (except to the extent that the same are in the possession of mortgagees pursuant to mortgages disclosed in schedule 5);
(g) to the extent not in the possession of any Group Company, all books of account concerning the businesses of any Group Company;
(h) an acknowledgement in the agreed terms from the Seller to the effect that following the repayments made in accordance with clause 3.4 and/or clause 3.5 as the case may be, there is no Intra-Group Indebtedness owing at Completion;
(i) the Disclosure Letter and the Transitional Services Agreement, both duly executed by the Seller;
(j) share certificates relating to all of the issued shares in the capital of the Subsidiaries (or an indemnity in respect of a lost share certificate in a form reasonably acceptable to the Buyer);
(k) a copy of a resolution of the board of directors of the Seller authorising the execution of and the performance of its obligations under this agreement and each of the other documents to be executed by it;
(l) an irrevocable power of attorney in the agreed terms executed by the holder of the Shares in favour of the Buyer, appointing the Buyer to be its lawful attorney in respect of the Shares;
(m) a deed of release executed by W▇▇▇▇ ▇Fargo Foothill Inc. as facility agent and security agent for GSO Luxembourg Onshore Funding SARL in relation to the Third Party Debt;
(n) the resignation of the auditors of each Group Company under section 394 of the Companies Act that none of the circumstances mentioned in that section exist and that there are no fees or other payments due to them from the relevant Group Company;
(o) service contacts in the agreed form executed by K▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ and A▇▇▇▇▇ ▇▇▇▇;
(p) compromise agreements in the agreed form executed by K▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ and A▇▇▇▇▇ ▇▇▇▇; and
(q) and the secretary Special Resolution.
3.3 At or prior to Completion, the Seller shall procure the passing of board resolutions of each Group Company:
(a) sanctioning for registration (subject where necessary to due stamping) the Company by delivery of a letter under seal from each such Director and the secretary resigning from his offices and from any employment he may have with the Company with effect from Completion and acknowledging that he has no claim against the Company either actual or contingent transfers in respect of any cause matter or thing (statutory or otherwise)the Shares;
(lb) the resignation appointing P▇▇▇▇ ▇▇▇▇▇▇▇▇, J▇▇▇ ▇▇▇▇▇, P▇▇▇ ▇▇▇▇▇▇▇▇▇▇ and B▇▇ ▇▇▇▇▇▇▇ as directors and J▇▇▇ ▇▇▇▇▇ as secretary of the auditors of the Company (without compensation for loss of office or any other claim save for proper professional fees for services rendered in respect of their duties as auditors prior to the completion of the 1997 Audit) with effect from completion of the 1997 Audit and the delivery of a statement by them that there are no circumstances connected with their ceasing to hold office which they consider should be brought to the attention of the members or creditors of the each Group Company;
(mc) revocation of revoking all existing authorities mandates to the bankers and giving authority in favour of the Company relating to bank accounts and the grant of authority to directors appointed under clause 3.3(b) above or such other persons as the Purchaser Buyer may nominate to operate the samebank accounts thereof;
(nd) resolving to repay a sum equal to that all books, records and files proportion of the Company are in its possession or under its control and where any such are not at the Properties that the Purchaser is given details of their whereabouts and any necessary authority to collect themIntra-Group Indebtedness owed by each relevant Group Company;
(oe) authorising the delivery to the Purchaser Buyer of duly completed and executed transfers of all shares share certificate in the capital of Firstpoint Services Limited not registered in the name respect of the Company, Shares;
(f) note the statutory books and common seal (if any) of Firstpoint Services Limited and certificates for all of the issued shares in Firstpoint Services Limited.
4.3 Immediately following fulfilment of all the matters resignations referred to in Clause 4.2 clause 3.2(c) and 3.2(p) above;
(g) change the Purchaser shall:registered office to R▇▇▇▇▇▇ House, Elvicta Business Park, C▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇; and
(h) pass the Shareholder Resolutions.
3.4 In the event that the Estimated Intra-Group Indebtedness is a positive figure, the Seller shall procure the payment of an amount equal to the Estimated Intra-Group Indebtedness by way of electronic transfer to the Buyer’s Solicitor’s Account at XXXXXXXX XXXXXXXXXXX Bank XXX XX XXX XXXXXX, XXXXXX XXX XXXXXX, PO BOX XXXXX, XXX XXXXXX, XXXXXX XXXX XXX, sort code XX-XX-XX, Account Number XXXXXXXX (the “Buyer’s Solicitor’s Account”) and the receipt of the Buyer’s Solicitors shall be a good discharge to the Seller.
3.5 Upon compliance by the Seller with all the provisions of clauses 3.2, 3.3 and 3.4 the Buyer shall (for the avoidance of doubt using finance procured by the Buyer in the case of sub-clauses (b) and (c) below):
(a) procure that that part provide for the electronic transfer of the Consideration payable in cash on Completion is paid by bankers draft Share Payment to the Vendor's Solicitors Seller’s Solicitor’s Account at XXXXXXX Bank XXX, XX XX XXXXXXXXXXX, XXXXXX, XXXX XXX, sort code XX-XX-XX, Account No. XXXXXXXX (who are hereby irrevocably authorised to receive that considerationthe “Seller’s Solicitor’s Account”) on behalf and the receipt of the VendorSeller’s Solicitors shall be a good discharge to the Buyer;
(b) in the event that the Estimated Intra-Group Indebtedness is a negative figure, procure the payment by the Company of an amount equal to the Estimated Intra-Group Indebtedness by way of electronic transfer to the Seller’s Solicitor’s Account and the receipt of the Seller’s Solicitors shall be a good discharge to the Buyer;
(c) procure the payment by the Company of the Third Party Debt by way of electronic transfer to those persons and in such amounts as set out in schedule 6 by way of electronic transfer to such accounts as shall be notified to the Buyer in advance;
(d) deliver to the Vendor's Solicitors Seller a counterpart of the Tax Covenant Deed and the Transitional Services Agreement, both duly executed by the Purchaser;
(c) if requested, and at the Vendor's cost, deliver to the Vendor's Solicitors a legal opinion in a form reasonably satisfactory to the Vendor as to the validity and enforceability of the guarantee contained within Clause 11 of this Agreement and if such opinion is that such guarantee is not valid and enforceable such amendments shall be made to the guarantee as render it valid and enforceable; and
(d) as agent for the Company, repay the Inter-Company Debt by bankers draft to the Vendor's Solicitors (who are hereby irrevocably authorised to receive that payment) on behalf of the Vendor and its subsidiaries and Associates. The delivery of a bankers draft to the Vendor's Solicitors shall be a full and sufficient discharge to the Purchaser for the monies payable on Completion and the Purchaser shall not be concerned to see to the application of any payment by the Purchaser under this Clause 4.3Buyer.
4.4 If all the provisions of Clause 4.2 are not complied with in full on Completion the Purchaser may:
(a) defer Completion to a date not more than 28 days after the date specified in Clause 4.1 in which event the provisions of this Clause 4.4 shall apply to Completion as so deferred; or
(b) proceed to Completion so far as practicable without prejudice to its rights under this Agreement or otherwise and so that any provision of Clause 4.2 which may not have been complied with at Completion shall at the sole discretion of the Purchaser be held over to such future date or dates as the Purchaser may in its sole discretion determine; or
(c) terminate this Agreement (save for Clauses 12, 13, 14 and 20, which shall remain in full force and effect) provided that such termination shall not affect the rights and obligations of the parties which have accrued prior to termination and shall not limit or exclude any other rights or remedies of the Purchaser in respect of any failure by the Vendor to comply with the requirements of Clause 4.2 on the due date.
4.5 The Vendor shall use all reasonable endeavours to procure compliance with the provisions of Clause 4.2 on any date set for Completion in accordance with this Agreement.
4.6 The Vendor undertakes to and covenants with the Purchaser (for itself and as trustee for the Company) that if, after Completion, it is discovered that the Company had on or before Completion given or undertaken any guarantees, indemnities or similar securities in respect of the obligations or liabilities of any person other than the Company and such guarantees, indemnities or similar securities were not finally and unconditionally released on or before Completion, the Vendor will fully indemnify the Purchaser and the Company and keep each of them fully indemnified on demand against all claims, demands, actions, proceedings, damages, losses, costs, expenses or liabilities suffered or incurred by the Purchaser or the Company under or in connection with such guarantees, indemnities or similar obligations.
Appears in 1 contract
Sources: Share Purchase Agreement (TRM Corp)
Completion. 4.1 4.01 Completion shall take place on or before 25th August 2006 at the offices of the Purchaser's Solicitors immediately following the signing of this Agreement or at such other place or time as the Vendor and the Purchaser may agree.
4.2 At Completion the Vendor shall procure:
(a) the delivery to the Purchaser of duly completed and executed transfers of the Shares by the registered holders of the Shares in favour of the Purchaser or its nominees together with valid share certificates representing the Shares and all (if any) other documents required to give good title to the Shares;
(b) the delivery to the Purchaser of powers of attorney in the agreed form duly executed by the registered holders of the Shares;
(c) the delivery to the Purchaser of the Tax Covenant duly executed by the Vendor;
(d) the delivery to the Purchaser of the following, each duly executed and in form and substance satisfactory to the Purchaser:-
(i) a deed of release given in relation to the Company Guarantee;
(ii) a deed of release by each person holding or being entitled to any Encumbrance over the Shares or any of the assets of the Company;
(iii) a deed of waiver by the Vendor waiving any claim it or any of its subsidiaries or Associates may have against the Company;
(iv) deeds of waiver by each co-guarantor of the Company in respect of the Company Guarantee;
(e) the delivery to the Purchaser of the statutory books (duly written up to date) and the certificate(s) of incorporation of the Company;
(f) the delivery to the Purchaser of all current cheque books and deposit books relating to all bank accounts of the Company;
(g) the delivery to the Purchaser of all documents of title relating to the Properties;
(h) the delivery to the Purchaser of copies of the minutes of the meetings of the boards of directors of the Vendor in the agreed form, authorising (in each case) the entry into of the transaction the subject of this Agreement, approving this Agreement and any other agreements or documents to be executed pursuant to or in connection with it and appointing the relevant signatory to sign this Agreement and such other agreements and documents on their behalf certified by the company secretary of the Vendor together with (in each case) confirmation, in the agreed form, from the company secretary that the authority conferred remains valid at Completion;
(i) the passing of effective resolutions of the Directors resolving to register the transfers of the Shares subject only to stamping of the share transfers;
(j) (at the cost of the Vendor) the convening and holding of all such meetings, the passing of all such resolutions, the execution and delivery of all such documents and the taking of all other action to the extent reasonably necessary in order to complete the transfer of title to the Shares to the Purchaser free from all Encumbrances and to enable the Purchaser to exercise and receive all rights and benefits attaching to or arising from the Shares;
(k) with effect from Completion, the appointment as directors and secretary of the Company of such person or persons as the Purchaser shall have nominated and the resignation of each of the Directors (except ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ /▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇ South 12th Road, High-Tech Industrial Park, Nanshan District, Shenzhen, PRC or such other place as the parties shall agree.
4.02 At Completion, the Seller shall deliver to the Purchaser:
(i) duly executed instruments of transfer in favour of the Purchaser in respect of the Sale Shares;
(ii) the share certificates for the Sale Shares or evidence of title of the Sale Shares satisfactory to the Purchaser;
(iii) all the statutory and other books of the Company in the possession of the Seller (including common seal and company chops (if any));
(iv) all books and accounts and other records, including without limitation, the cheque books and bank records of the Company in the possession of the Seller;
(v) the original written shareholders resolution attached hereto as Exhibit B signed by a duly authorized officer of the Seller and dated as of the date of Completion;
(vi) the original written board resolutions attached hereto as Exhibit C signed by Hope Ni and ▇▇▇▇ ▇▇▇▇▇) and the secretary ▇▇ as directors of the Company by delivery of a letter under seal from each such Director and the secretary resigning from his offices Subsidiary and from any employment he may have with dated as of the date of Completion;
(vii) the original duly executed counterpart of the Termination Agreement signed by a duly authorized officer of the Seller, the Company with effect from Completion and acknowledging that he has no claim against the Company either actual or contingent Subsidiary and dated as of the date of Completion;
(viii) the original duly executed letter of release attached hereto as Exhibit E signed by a duly authorized officer of the Seller and dated as of the date of Completion, in respect of any cause matter or thing (statutory or otherwise);
(l) the resignation Repayment of the auditors of the Company (without compensation for loss of office or any other claim save for proper professional fees for services rendered in respect of their duties as auditors prior to the completion of the 1997 Audit) with effect from completion of the 1997 Audit and the delivery of a statement by them that there are no circumstances connected with their ceasing to hold office which they consider should be brought to the attention of the members or creditors of the Company;
(m) revocation of all existing authorities to the bankers of the Company relating to bank accounts and the grant of authority to such persons as the Purchaser may nominate to operate the same;
(n) that all books, records and files of the Company are in its possession or under its control and where any such are not at the Properties that the Purchaser is given details of their whereabouts and any necessary authority to collect them;
(o) the delivery to the Purchaser of duly completed and executed transfers of all shares in the capital of Firstpoint Services Limited not registered in the name of the Company, the statutory books and common seal (if any) of Firstpoint Services Limited and certificates for all of the issued shares in Firstpoint Services Limited.
4.3 Immediately following fulfilment of all the matters referred to in Clause 4.2 the Purchaser shall:
(a) procure that that part of the Consideration payable in cash on Completion is paid by bankers draft to the Vendor's Solicitors (who are hereby irrevocably authorised to receive that consideration) on behalf of the Vendor;
(b) deliver to the Vendor's Solicitors a counterpart of the Tax Covenant duly executed by the Purchaser;
(c) if requested, and at the Vendor's cost, deliver to the Vendor's Solicitors a legal opinion in a form reasonably satisfactory to the Vendor as to the validity and enforceability of the guarantee contained within Clause 11 of this Agreement and if such opinion is that such guarantee is not valid and enforceable such amendments shall be made to the guarantee as render it valid and enforceableLoan; and
(dix) the original resignation letter of Hope Ni and ▇▇▇▇ ▇▇▇▇▇▇▇ as agent directors of the Company and the Subsidiary, each in the form attached hereto as Exhibit F, duly signed by each of them and dated as at the date of Completion.
4.03 At Completion, the Purchaser shall deliver to the Seller :
(i) a banker's draft for US$1,250,000 in respect of the CompanyConsideration, repay the Inter-Company Debt by bankers such draft to be payable to the Vendor's Solicitors (who are hereby irrevocably authorised to receive that payment) on behalf of the Vendor and its subsidiaries and AssociatesSeller. The delivery of such banker's draft as aforesaid shall constitute a bankers draft to the Vendor's Solicitors shall be a full and sufficient complete discharge to the Purchaser in respect of the Consideration to be provided by it under this Agreement;
(ii) a banker's draft for US$2,500,000 in respect of the monies Repayment of Loan, such draft to be payable on Completion and to the Seller. The delivery of such banker's draft as aforesaid shall constitute a complete discharge to the Purchaser shall not in respect of the Repayment of Loan to be concerned to see to the application of any payment made by the Purchaser under this Clause 4.3.
4.4 If all the provisions of Clause 4.2 are not complied with in full on Completion the Purchaser may:Agreement; and
(aiii) defer Completion to a date not more than 28 days after the original duly executed counterpart of the Termination Agreement signed by Chen, Lin, ▇▇▇, ▇▇▇▇ and Pioneer and dated as of the date specified in Clause 4.1 in which event the provisions of this Clause 4.4 shall apply to Completion as so deferred; or
(b) proceed to Completion so far as practicable without prejudice to its rights under this Agreement or otherwise and so that any provision of Clause 4.2 which may not have been complied with at Completion shall at the sole discretion of the Purchaser be held over to such future date or dates as the Purchaser may in its sole discretion determine; or
(c) terminate this Agreement (save for Clauses 12, 13, 14 and 20, which shall remain in full force and effect) provided that such termination shall not affect the rights and obligations of the parties which have accrued prior to termination and shall not limit or exclude any other rights or remedies of the Purchaser in respect of any failure by the Vendor to comply with the requirements of Clause 4.2 on the due dateCompletion.
4.5 The Vendor shall use all reasonable endeavours to procure compliance with the provisions of Clause 4.2 on any date set for Completion in accordance with this Agreement.
4.6 The Vendor undertakes to and covenants with the Purchaser (for itself and as trustee for the Company) that if, after Completion, it is discovered that the Company had on or before Completion given or undertaken any guarantees, indemnities or similar securities in respect of the obligations or liabilities of any person other than the Company and such guarantees, indemnities or similar securities were not finally and unconditionally released on or before Completion, the Vendor will fully indemnify the Purchaser and the Company and keep each of them fully indemnified on demand against all claims, demands, actions, proceedings, damages, losses, costs, expenses or liabilities suffered or incurred by the Purchaser or the Company under or in connection with such guarantees, indemnities or similar obligations.
Appears in 1 contract
Completion. 4.1 Completion shall take place forthwith on execution and exchange of this Agreement at the offices of the Purchaser's Solicitors immediately following the signing of this Agreement or at such other place or time as the Vendor and the Purchaser may agreeMaxwell Batley 27 Chancery Lane London WC2.
4.2 At Completion the Vendor shall procure:
(a) the delivery to the Purchaser of duly completed and executed transfers of the Shares by the registered holders of the Shares in favour of the Purchaser or its nominees together with valid share certificates representing the Shares and all (if any) other documents required to give good title to the Shares;
(b) the delivery to the Purchaser of powers of attorney in the agreed form duly executed by the registered holders of the Shares;
(c) the delivery to the Purchaser of the Tax Covenant duly executed by the Vendor;
(d) the delivery to the Purchaser of the following, each duly executed and in form and substance satisfactory to the Purchaser:-
(i) a deed of release given in relation to the Company Guarantee;
(ii) a deed of release by each person holding or being entitled to any Encumbrance over the Shares or any of the assets of the Company;
(iii) a deed of waiver by the Vendor waiving any claim it or any of its subsidiaries or Associates may have against the Company;
(iv) deeds of waiver by each co-guarantor of the Company in respect of the Company Guarantee;
(e) the delivery to the Purchaser of the statutory books (duly written up to date) and the certificate(s) of incorporation of the Company;
(f) the delivery to the Purchaser of all current cheque books and deposit books relating to all bank accounts of the Company;
(g) the delivery to the Purchaser of all documents of title relating to the Properties;
(h) the delivery to the Purchaser of copies of the minutes of the meetings of the boards of directors of the Vendor in the agreed form, authorising (in each case) the entry into of the transaction the subject of this Agreement, approving this Agreement and any other agreements or documents to be executed pursuant to or in connection with it and appointing the relevant signatory to sign this Agreement and such other agreements and documents on their behalf certified by the company secretary of the Vendor together with (in each case) confirmation, in the agreed form, from the company secretary that the authority conferred remains valid at Completion;
(i) the passing of effective resolutions of the Directors resolving to register the transfers of the Shares subject only to stamping of the share transfers;
(j) (at the cost of the Vendor) the convening and holding of all such meetings, the passing of all such resolutions, the execution and delivery of all such documents and the taking of all other action to the extent reasonably necessary in order to complete the transfer of title to the Shares to the Purchaser free from all Encumbrances and to enable the Purchaser to exercise and receive all rights and benefits attaching to or arising from the Shares;
(k) with effect from Completion, the appointment as directors and secretary of the Company of such person or persons as the Purchaser shall have nominated and the resignation of each of the Directors (except ▇▇▇▇Upon Completio▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇h▇▇▇ :-
▇.▇.▇ ▇eliver to the Purchaser duly completed and signed transfers of the Sale Shares by the registered holders thereof in favour of the Purchaser (or as it may direct) together with the respective bought/sold notes and original share certificates in relation to the Sale Shares together with a letter of confirmation that any existing trust between the Vendor and Hunt (UK) is cancelled;
4.2.2 cause a board meeting of ▇▇▇ ▇▇▇▇▇▇▇▇ and ▇▇▇▇ ▇▇▇▇▇Company to be held at which (inter alia) and the secretary existing directors of the Company by delivery shall :-
(i) approve the registration of a letter under seal from each such Director the Purchaser and the secretary resigning from his offices and from any employment he may have with or its nominee as members of the Company with effect from Completion and acknowledging that he has no claim against the Company either actual or contingent in respect of any cause matter or thing (statutory or otherwise)the Sale Shares subject to the production of duly stamped instruments of transfer;
(lii) revoke all existing mandates for the resignation operation of all the auditors bank accounts of the Company (without compensation for loss and issue new mandates giving authority to persons nominated by the Purchaser provided that the Purchaser shall give at least 3 Business Days' advance notice of office or any other claim save for proper professional fees for services rendered this in respect of their duties as auditors prior writing to the completion of the 1997 Audit) with effect from completion of the 1997 Audit and the delivery of a statement by them that there are no circumstances connected with their ceasing to hold office which they consider should be brought to the attention of the members or creditors of the CompanyVendor;
(miii) revocation of all existing authorities to the bankers of the Company relating to bank accounts and the grant of authority to appoint such persons as the Purchaser may nominate to operate be validly appointed as additional directors of the sameCompany and upon such appointment forthwith cause all the existing directors of the Company to retire from their respective offices and resign as employees each delivering to the Purchaser a letter under seal in agreed terms acknowledging that the person so retiring and resigning has no entitlement to claim compensation for wrongful dismissal or unfair dismissal or to payment for redundancy or in respect of any other moneys or benefits due to him from the Company arising out of or in connection with his employment and/or its termination;
(niv) that all books, records and files of the Company are in its possession or under its control and where any such are not at the Properties that the Purchaser is given details of their whereabouts and any necessary authority to collect them;[deleted]
(o) the delivery to the Purchaser of duly completed and executed transfers of all shares in the capital of Firstpoint Services Limited not registered in the name of the Company, the statutory books and common seal (if any) of Firstpoint Services Limited and certificates for all of the issued shares in Firstpoint Services Limited.
4.3 Immediately following fulfilment of all the matters referred to in Clause 4.2 the Purchaser shall:
(a) procure that that part of the Consideration payable in cash on Completion is paid by bankers draft to the Vendor's Solicitors (who are hereby irrevocably authorised to receive that consideration) on behalf of the Vendor;
(bv) deliver to the Vendor's Solicitors Purchaser a counterpart Deed of the Tax Covenant Assignment of Debt duly executed by Hunt (UK) and Hunt (NL) together with a let▇▇▇ of acknowl▇▇▇▇ment to the PurchaserDeed of Assignment of Debt signed by the Company.
4.3 Upon Completion the Purchaser shall :-
4.3.1 effect a telegraphic transfer to the Vendor of HK$2,102,800 being the aggregate amount of the Share Price and the first instalment of the Debt Price as set out in the Deed of Assignment of Debt;
(c) if requested, and at the Vendor's cost, 4.3.2 deliver to the Vendor's Solicitors a legal opinion in a form reasonably satisfactory to the Vendor as to the validity and enforceability certified true copies of the guarantee contained within Clause 11 board resolutions of the Purchaser approving the acquisition of the Sale Shares, the execution of this Agreement and if such opinion is that such guarantee is not valid the completion of this Agreement and enforceable such amendments shall be made to the guarantee as render it valid and enforceabletransactions contemplated thereby; and
(d) as agent for the Company, repay the Inter-Company Debt by bankers draft 4.3.3 deliver to the Vendor's Solicitors (who are hereby irrevocably authorised to receive that payment) on behalf Vendor a duly executed counterpart Deed of the Vendor and its subsidiaries and Associates. The delivery Assignment of a bankers draft to the Vendor's Solicitors shall be a full and sufficient discharge to the Purchaser for the monies payable on Debt.
4.4 As soon as practicable after Completion and the Purchaser shall not be concerned to see to present the application instruments of any payment by the Purchaser under this Clause 4.3.
4.4 If all the provisions of Clause 4.2 are not complied with in full on Completion the Purchaser may:
(a) defer Completion to a date not more than 28 days after the date specified in Clause 4.1 in which event the provisions of this Clause 4.4 shall apply to Completion as so deferred; or
(b) proceed to Completion so far as practicable without prejudice to its rights under this Agreement or otherwise and so that any provision of Clause 4.2 which may not have been complied with at Completion shall at the sole discretion of the Purchaser be held over to such future date or dates as the Purchaser may in its sole discretion determine; or
(c) terminate this Agreement (save for Clauses 12, 13, 14 and 20, which shall remain in full force and effect) provided that such termination shall not affect the rights and obligations of the parties which have accrued prior to termination and shall not limit or exclude any other rights or remedies of the Purchaser in respect of any failure by the Vendor to comply transfer together with the requirements of Clause 4.2 on the due date.
4.5 The Vendor shall use all reasonable endeavours to procure compliance with the provisions of Clause 4.2 on any date set for Completion in accordance with this Agreement.
4.6 The Vendor undertakes to and covenants with the Purchaser (for itself and as trustee for the Company) that if, after Completion, it is discovered that the Company had on or before Completion given or undertaken any guarantees, indemnities or similar securities share certificates in respect of the obligations or liabilities Sale Shares to the Company for registration of the transfer.
4.5 All the transactions described in Clauses 4.2 and 4.3 above shall take place at the same time, so that in default of the performance of any person other than the Company and such guarantees, indemnities or similar securities were not finally and unconditionally released on or before Completiontransactions by one party, the Vendor will fully indemnify other party shall not be obliged to complete the Purchaser sale and the Company and keep each of them fully indemnified on demand against all claims, demands, actions, proceedings, damages, losses, costs, expenses or liabilities suffered or incurred by the Purchaser or the Company under or in connection with such guarantees, indemnities or similar obligationspurchase aforesaid (without prejudice to any further legal remedies).
Appears in 1 contract
Sources: Shareholder Agreement (Hunt Corp)
Completion. 4.1 3.1 Completion shall take place at the offices of Mourant du Feu & Jeune, 22 Grenville Street, St Helier, Jersey immediately after the Purchaser's Solicitors immediately following the signing execution of this Agreement or at such other place or time as the Vendor and the Purchaser may agreeagreement.
4.2 At 3.2 On Completion the Vendor Vendors shall procure:
(a) deliver to, or procure the delivery to the Purchaser of duly completed and executed of:-
(a) transfers of in common form relating to all the Shares by the registered holders of the Shares duly executed in favour of the Purchaser (or its nominees together with valid share certificates representing the Shares and all (if any) other documents required to give good title as it may have directed in writing prior to the Sharesdate hereof);
(b) the delivery share certificates relating to the Purchaser of powers of attorney in the agreed form duly executed by the registered holders of the Shares;
(c) the delivery to the Purchaser of the Tax Covenant duly effective written resignations executed by the Vendor;
(d) the delivery to the Purchaser of the following, each duly executed and in form and substance satisfactory to the Purchaser:-
(i) a deed of release given in relation to the Company Guarantee;
(ii) a deed of release by each person holding or being entitled to any Encumbrance over the Shares or any of the assets of the Company;
(iii) a deed of waiver by the Vendor waiving any claim it or any of its subsidiaries or Associates may have against the Company;
(iv) as their respective deeds of waiver by each co-guarantor of the Company in respect of the Company Guarantee;
(e) the delivery to the Purchaser of the statutory books (duly written up to date) and the certificate(s) of incorporation of the Company;
(f) the delivery to the Purchaser of all current cheque books and deposit books relating to all bank accounts of the Company;
(g) the delivery to the Purchaser of all documents of title relating to the Properties;
(h) the delivery to the Purchaser of copies of the minutes of the meetings of the boards of directors of the Vendor in the agreed form, authorising (in each case) the entry into of the transaction the subject of this Agreement, approving this Agreement and any other agreements or documents to be executed pursuant to or in connection with it and appointing the relevant signatory to sign this Agreement and such other agreements and documents on their behalf certified by the company secretary of the Vendor together with (in each case) confirmation, in the agreed form, from the company secretary that the authority conferred remains valid at Completion;
(i) the passing of effective resolutions of the Directors resolving to register the transfers of the Shares subject only to stamping of the share transfers;
(j) (at the cost of the Vendor) the convening and holding of all such meetings, the passing of all such resolutions, the execution and delivery of all such documents and the taking of all other action to the extent reasonably necessary in order to complete the transfer of title to the Shares to the Purchaser free from all Encumbrances and to enable the Purchaser to exercise and receive all rights and benefits attaching to or arising from the Shares;
(k) with effect from Completion, the appointment as directors and secretary of the Company of such person or persons as the Purchaser shall have nominated and the resignation of each of the Directors (except ▇▇▇▇▇ ▇▇▇▇▇▇ and ▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ and ▇▇▇▇ ▇▇▇▇▇) from their offices as director and the secretary any office or employment of or by the Company by delivery of containing a letter under seal from each such Director and the secretary resigning from his offices and from any employment he may confirmation that they have with the Company with effect from Completion and acknowledging that he has no claim against the Company either for compensation for loss of office or termination of employment or otherwise whether statutory or otherwise or for unpaid remuneration;
(d) the Deed of Indemnity duly executed by the Vendors;
(e) a release duly executed as a deed by each of the Vendors in the agreed form, releasing the Company and the Subsidiaries from any liability whatsoever (actual or contingent contingent) which may be owing to the Vendors by the Company or any of the Subsidiaries;
(f) a certified copy of the release given by Bank of Ireland in relation to all security granted pursuant to the Bank of Ireland Facility;
(g) written confirmation from Barclays Bank plc that the initial conditions precedent contained in the Receivables Financing Agreement have been satisfied;
(h) a copy of a legal opinion given by A & L Goodbody that there is a true sale in respect of the Receivables Financing Agreement;
(i) a certified copy of an amendment agreement in respect of the TAGS Facility and the Liquidity Facility;
(j) a copy of a legal opinion given by A & L Goodbody to, amongst others, National Westminster Bank Plc confirming that their opinion dated 29 May 1998 and given in respect of the TAGS Facility remains accurate and correct;
(k) written confirmation from BHF BANK AG that it will not exercise any cause matter or thing (statutory or otherwise)of its rights to demand the repayment of any amounts outstanding under the BHF Loan Agreement arising as a result of the acquisition;
(l) the resignation Indemnity Escrow and Stock Pledge Agreement duly executed by each of the auditors of the Company (without compensation for loss of office or any other claim save for proper professional fees for services rendered in respect of their duties as auditors prior to the completion of the 1997 Audit) with effect from completion of the 1997 Audit Vendors and the delivery Vendors' Representative, together with the 10 stock powers described in clause 3.1 of a statement by them that there are no circumstances connected with their ceasing to hold office which they consider should be brought to the attention of the members or creditors of the Companysuch agreement;
(m) revocation the Registration Rights Agreement duly executed by each of all existing authorities the Vendors; and
(n) opinions in the agreed forms from the Vendor's Solicitors and the legal advisers to the bankers Vendors and the Company in each relevant jurisdiction relating, inter alia, to the right, power and authority of the Vendors to enter into this agreement and the Transaction Documents.
3.3 On Completion the Vendors shall make available to, or procure the availability to the Purchaser of:-
(a) the common seals, certificates of incorporation and statutory books and share certificate books of the Company and the Subsidiaries;
(b) to the extent that they are in the possession or control of the Company or the relevant Subsidiary, all books of account or reference as to customers and other records and all insurance policies in any way relating to bank accounts or concerning the respective businesses of the Company and the grant Subsidiaries;
(c) to the extent that they are in the possession or control of authority the Company or the Subsidiaries all licences, consents, permits and authorisations obtained by or issued to the Company or the Subsidiaries or any other person in connection with the business carried on by it and them and such contracts, deeds or other documents (including assignments of any such licences) as shall have been required by the Purchaser's Solicitors prior to the date hereof;
(d) all land certificates, charge certificates, leases, title deeds and other documents relating to the Properties which are located in Ireland, Japan and the United States of America (save to the extent that the same are in the possession of mortgagees thereof disclosed in writing by or on behalf of the Vendors to the Purchaser or its representatives); and
(e) share certificates relating to all of the issued shares of each of the Subsidiaries.
3.4 At Completion (and prior to the taking effect of the resignations of the directors referred to in clause 3.2 (c)) the Vendors shall procure the passing of board resolutions of the Company:-
(a) sanctioning for registration (subject where necessary to due stamping) the transfers in respect of the Shares;
(b) appointing such persons as the Purchaser may nominate to operate be additional directors of the same;Company; and
(nc) amending bank mandates by the removal and appointment of such persons as the Purchaser may nominate as authorised signatories.
3.5 On Completion the Purchaser shall deliver to the Vendors' Representative:-
(a) written confirmation from the Purchaser's transfer agent ("TRANSFER AGENT") that all books, records and files of the Company are in its possession or under its control and where any such are not at the Properties that the Purchaser is given details of their whereabouts and any necessary authority to collect them;stock certificates evidencing that:-
(oi) the delivery Consideration Shares, other than the Escrow Shares, have been issued to the Purchaser of duly completed and executed transfers of all shares in the capital name of Firstpoint Services Limited not registered each Vendor in the amounts set out opposite each Vendor's name in column 2 of part C of schedule 1; and
(ii) the Escrow Shares have been issued to and in the name of the Company, the statutory books and common seal Escrow Agent (if any) of Firstpoint Services Limited and certificates for all as nominee of the issued shares Vendors) in Firstpoint Services Limited.
4.3 Immediately following fulfilment the aggregate amounts set out in column 3 of all the matters referred to in Clause 4.2 the Purchaser shall:
(a) procure that that part C of the Consideration payable in cash on Completion is paid by bankers draft to the Vendor's Solicitors (who are hereby irrevocably authorised to receive that consideration) on behalf of the Vendorschedule 1;
(b) deliver a certified copy of a resolution of the board of directors of the Purchaser authorising the entry into of this agreement by the Purchaser and the allotment of the Consideration Shares;
(c) an opinion in the agreed form from Arnall Golden & ▇▇▇▇▇▇▇ relating, inter alia, to the Vendor's Solicitors a counterpart right, power and authority of the Tax Covenant Purchaser to enter into this agreement and the Transaction Documents;
(d) the Registration Rights Agreement duly executed by the Purchaser;
(c) if requested, and at the Vendor's cost, deliver to the Vendor's Solicitors a legal opinion in a form reasonably satisfactory to the Vendor as to the validity and enforceability of the guarantee contained within Clause 11 of this Agreement and if such opinion is that such guarantee is not valid and enforceable such amendments shall be made to the guarantee as render it valid and enforceable; and
(de) as agent for the CompanyIndemnity Escrow and Stock Pledge Agreement duly executed by the Purchaser.
3.6 On Completion, repay the Inter-Company Debt by bankers draft to the Vendor's Solicitors (who are hereby irrevocably authorised to receive that payment) and on behalf of each of the Vendor and its subsidiaries and Associates. The delivery of a bankers draft to the Vendor's Solicitors shall be a full and sufficient discharge to the Purchaser for the monies payable on Completion and Vendors, the Purchaser shall not be concerned to see to the application of any payment by the Purchaser under this Clause 4.3.
4.4 If all the provisions of Clause 4.2 are not complied with in full on Completion the Purchaser may:
(a) defer Completion to a date not more than 28 days after the date specified in Clause 4.1 in which event the provisions of this Clause 4.4 shall apply to Completion as so deferred; or
(b) proceed to Completion so far as practicable without prejudice to its rights under this Agreement or otherwise and so that any provision of Clause 4.2 which may not have been complied with at Completion shall at the sole discretion of the Purchaser be held over to such future date or dates as the Purchaser may in its sole discretion determine; or
(c) terminate this Agreement (save for Clauses 12, 13, 14 and 20, which shall remain in full force and effect) provided that such termination shall not affect the rights and obligations of the parties which have accrued prior to termination and shall not limit or exclude any other rights or remedies of the Purchaser in respect of any failure by the Vendor to comply with the requirements of Clause 4.2 on the due date.
4.5 The Vendor shall use all reasonable endeavours to procure compliance with the provisions of Clause 4.2 on any date set for Completion in accordance with this Agreement.
4.6 The Vendor undertakes to and covenants with the Purchaser (for itself and as trustee for the Company) that if, after Completion, it is discovered that the Company had on or before Completion given or undertaken any guarantees, indemnities or similar securities Transfer Agent shall deposit into escrow that aggregate number of Consideration Shares set out in column 3 of part C of schedule 1 in respect of the obligations or liabilities General Indemnified Claims (as defined in clause 4.7 below) (the "ESCROW SHARES"), which Escrow Shares shall be held by the Escrow Agent as a non-exclusive source for claims for indemnification hereunder in accordance with the terms of the Indemnity Escrow and Stock Pledge Agreement.
3.7 As soon as reasonably practicable following Completion and in any person other event no later than the Company and such guarantees, indemnities or similar securities were not finally and unconditionally released on or before 5 business days after Completion, the Vendor will fully indemnify Purchaser shall procure that the Purchaser Transfer Agent shall despatch to the Vendors' Representative (for these purposes, care of the Vendors' Solicitors) stock certificates in respect of the Consideration Shares referred to in clause 3.5(a)(i) above and shall despatch to the Company and keep each Escrow Agent stock certificates in respect of them fully indemnified on demand against all claims, demands, actions, proceedings, damages, losses, costs, expenses or liabilities suffered or incurred by the Purchaser or the Company under or Escrow Shares referred to in connection with such guarantees, indemnities or similar obligationsclause 3.5(a)(ii) above.
Appears in 1 contract
Sources: Acquisition Agreement (Ki Corp LTD)
Completion.
4.1 Completion shall take place at 11 a.m. (Hong Kong time) on the offices of the Purchaser's Solicitors immediately following the signing of this Agreement or at such other place or time as the Vendor and the Purchaser may agree.
4.2 At Completion the Vendor shall procure:
(a) the delivery to the Purchaser of duly completed and executed transfers of the Shares by the registered holders of the Shares in favour of the Purchaser or its nominees together with valid share certificates representing the Shares and all (if any) other documents required to give good title to the Shares;
(b) the delivery to the Purchaser of powers of attorney in the agreed form duly executed by the registered holders of the Shares;
(c) the delivery to the Purchaser of the Tax Covenant duly executed by the Vendor;
(d) the delivery to the Purchaser of the following, each duly executed and in form and substance satisfactory to the Purchaser:-
(i) a deed of release given in relation to the Company Guarantee;
(ii) a deed of release by each person holding or being entitled to any Encumbrance over the Shares or any of the assets of the Company;
(iii) a deed of waiver by the Vendor waiving any claim it or any of its subsidiaries or Associates may have against the Company;
(iv) deeds of waiver by each co-guarantor of the Company in respect of the Company Guarantee;
(e) the delivery to the Purchaser of the statutory books (duly written up to date) and the certificate(s) of incorporation of the Company;
(f) the delivery to the Purchaser of all current cheque books and deposit books relating to all bank accounts of the Company;
(g) the delivery to the Purchaser of all documents of title relating to the Properties;
(h) the delivery to the Purchaser of copies of the minutes of the meetings of the boards of directors of the Vendor in the agreed form, authorising (in each case) the entry into of the transaction the subject of this Agreement, approving this Agreement and any other agreements or documents to be executed pursuant to or in connection with it and appointing the relevant signatory to sign this Agreement and such other agreements and documents on their behalf certified by the company secretary of the Vendor together with (in each case) confirmation, in the agreed form, from the company secretary that the authority conferred remains valid at Completion;
(i) the passing of effective resolutions of the Directors resolving to register the transfers of the Shares subject only to stamping of the share transfers;
(j) (Date at the cost office of the Vendor) the convening and holding of all such meetings, the passing of all such resolutions, the execution and delivery of all such documents and the taking of all other action to the extent reasonably necessary in order to complete the transfer of title to the Shares to the Purchaser free from all Encumbrances and to enable the Purchaser to exercise and receive all rights and benefits attaching to or arising from the Shares;
(k) with effect from Completion, the appointment as directors and secretary of the Company of such person or persons as the Purchaser shall have nominated and the resignation of each of the Directors (except ▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Club Building, 3A Chater Road, Hong Kong, or at such other date, time or place as the Subscriber and ▇▇▇▇ ▇▇▇▇▇) and the secretary of Company may agree in writing.
4.2 At Completion, the Company by delivery of a letter under seal from each such Director and the secretary resigning from his offices and from any employment he may have with the Company with effect from Completion and acknowledging that he has no claim against the Company either actual or contingent in respect of any cause matter or thing (statutory or otherwise);
(l) the resignation of the auditors of the Company (without compensation for loss of office or any other claim save for proper professional fees for services rendered in respect of their duties as auditors prior to the completion of the 1997 Audit) with effect from completion of the 1997 Audit and the delivery of a statement by them that there are no circumstances connected with their ceasing to hold office which they consider should be brought to the attention of the members or creditors of the Company;
(m) revocation of all existing authorities to the bankers of the Company relating to bank accounts and the grant of authority to such persons as the Purchaser may nominate to operate the same;
(n) that all books, records and files of the Company are in its possession or under its control and where any such are not at the Properties that the Purchaser is given details of their whereabouts and any necessary authority to collect them;
(o) the delivery to the Purchaser of duly completed and executed transfers of all shares in the capital of Firstpoint Services Limited not registered in the name of the Company, the statutory books and common seal (if any) of Firstpoint Services Limited and certificates for all of the issued shares in Firstpoint Services Limited.
4.3 Immediately following fulfilment of all the matters referred to in Clause 4.2 the Purchaser shall:
(a) deliver, or procure that that part to be delivered, to the Subscriber a copy of the Consideration payable in cash on Completion is paid by bankers draft to the Vendor's Solicitors (who are hereby irrevocably authorised to receive that consideration) on behalf minutes of the Vendorboard of directors or board resolutions of the Company, approving;
(i) this Agreement and the transactions contemplated thereunder;
(ii) the allotment and issue of the Subscription Shares and the entry of the name of the Subscriber into the register of members of the Company as holder of the Subscription Shares;
(b) deliver deliver, or procure to be delivered, to the Vendor's Solicitors Subscriber a counterpart copy of the Tax Covenant duly executed by minutes of the PurchaserEGM or shareholders resolutions of the Company, approving:
(i) this Agreement and the transactions contemplated thereunder;
(ii) the allotment and issue of the Subscription Shares and the entry of the name of the Subscriber into the register of members of the Company as holder of the Subscription Shares, to the reasonable satisfaction of the Subscriber;
(c) if requested, and at the Vendor's cost, deliver subject to the Vendor's Solicitors a legal opinion in a form reasonably satisfactory to the Vendor as to the validity and enforceability payment of the guarantee contained within Clause 11 of Subscription Monies by the Subscriber, duly allot and issue the Subscription Shares in accordance with this Agreement and if such opinion is procure the definitive share certificate(s) representing the number of Subscription Shares that such guarantee is not valid the Subscriber has subscribed for under Clause 3 to be delivered and enforceable such amendments deposited to the CCASS stock account as shall be made notified by the Subscriber to the guarantee as render it valid and enforceableCompany five Business Days prior to the Completion Date; and
(d) as agent for the Companydeliver, repay the Inter-Company Debt by bankers draft or procure to be delivered, to the Vendor's Solicitors (who are hereby irrevocably authorised to receive that payment) on behalf Subscriber a copy of the Vendor and its subsidiaries and Associates. The delivery of a bankers draft to the Vendor's Solicitors shall be a full and sufficient discharge to the Purchaser for the monies payable on Completion and the Purchaser shall not be concerned to see to the application of any payment by the Purchaser under this Clause 4.3Listing Approval.
4.4 If all 4.3 At Completion, the provisions of Clause 4.2 are not complied with in full on Completion the Purchaser maySubscriber shall:
(a) defer Completion deliver, or procure to be delivered, to the Company a date not more than 28 days after copy of the date specified in Clause 4.1 in which event minutes or the provisions resolutions of the board of directors of the Subscriber, approving this Clause 4.4 shall apply Agreement and the transactions contemplated thereunder, to Completion as so deferredthe reasonable satisfaction of the Company; orand
(b) proceed transfer by wire transfer of immediately available funds and without deductions and for value to Completion so far a bank account to be notified in writing by the Company to the Subscriber the funds representing the Subscription Monies or in such other manner as practicable without prejudice may be agreed in writing between the Parties.
4.4 In respect of the Completion, the Parties agree that:
(a) neither Party shall be obliged to its rights under complete the Subscription unless the other Party complies in full with all of the obligations provided in this Agreement to be performed and/or observed by such Party on or otherwise and so that any provision of Clause 4.2 which may not have been complied with at prior to Completion;
(b) the Completion shall at take place simultaneously with the sole discretion of the Purchaser be held over to such future date or dates as the Purchaser may in its sole discretion determineSale and Purchase Completion; orand
(c) terminate this Agreement (save for Clauses 12, 13, 14 and 20, which shall remain in full force and effect) provided that such termination shall not affect the rights and obligations of the parties which have accrued prior all actions required to termination and shall not limit or exclude any other rights or remedies of the Purchaser in respect of any failure by the Vendor to comply with the requirements of Clause 4.2 be performed on the due dateCompletion Date shall be deemed to be taken to have occurred simultaneously on the Completion Date.
4.5 The Vendor shall use all reasonable endeavours to procure compliance with the provisions of Clause 4.2 on any date set for Completion in accordance with this Agreement.
4.6 The Vendor undertakes to and covenants with the Purchaser (for itself and as trustee for the Company) that if, after Completion, it is discovered that the Company had on or before Completion given or undertaken any guarantees, indemnities or similar securities in respect of the obligations or liabilities of any person other than the Company and such guarantees, indemnities or similar securities were not finally and unconditionally released on or before Completion, the Vendor will fully indemnify the Purchaser and the Company and keep each of them fully indemnified on demand against all claims, demands, actions, proceedings, damages, losses, costs, expenses or liabilities suffered or incurred by the Purchaser or the Company under or in connection with such guarantees, indemnities or similar obligations.
Appears in 1 contract
Sources: Subscription Agreement
Completion. 4.1 Completion Subject to the provisions in Clause 2 hereof, completion of the sale and purchase of the Sale Shares shall take place at the offices of Arculli Fong & Ng (the "PURCHASER'S SOLICITORS"), the Solicitors for the Purchaser's Solicitors immediately following the signing of this Agreement or , at such other place or time as the Vendor and the Purchaser may agree.
4.2 At Completion the Vendor shall procure:
(a) the delivery to the Purchaser of duly completed and executed transfers of the Shares by the registered holders of the Shares in favour of the Purchaser or its nominees together with valid share certificates representing the Shares and all (if any) other documents required to give good title to the Shares;
(b) the delivery to the Purchaser of powers of attorney in the agreed form duly executed by the registered holders of the Shares;
(c) the delivery to the Purchaser of the Tax Covenant duly executed by the Vendor;
(d) the delivery to the Purchaser of the following, each duly executed and in form and substance satisfactory to the Purchaser:-
(i) a deed of release given in relation to the Company Guarantee;
(ii) a deed of release by each person holding or being entitled to any Encumbrance over the Shares or any of the assets of the Company;
(iii) a deed of waiver by the Vendor waiving any claim it or any of its subsidiaries or Associates may have against the Company;
(iv) deeds of waiver by each co-guarantor of the Company in respect of the Company Guarantee;
(e) the delivery to the Purchaser of the statutory books (duly written up to date) and the certificate(s) of incorporation of the Company;
(f) the delivery to the Purchaser of all current cheque books and deposit books relating to all bank accounts of the Company;
(g) the delivery to the Purchaser of all documents of title relating to the Properties;
(h) the delivery to the Purchaser of copies of the minutes of the meetings of the boards of directors of the Vendor in the agreed form, authorising (in each case) the entry into of the transaction the subject of this Agreement, approving this Agreement and any other agreements or documents to be executed pursuant to or in connection with it and appointing the relevant signatory to sign this Agreement and such other agreements and documents on their behalf certified by the company secretary of the Vendor together with (in each case) confirmation, in the agreed form, from the company secretary that the authority conferred remains valid at Completion;
(i) the passing of effective resolutions of the Directors resolving to register the transfers of the Shares subject only to stamping of the share transfers;
(j) (at the cost of the Vendor) the convening and holding of all such meetings, the passing of all such resolutions, the execution and delivery of all such documents and the taking of all other action to the extent reasonably necessary in order to complete the transfer of title to the Shares to the Purchaser free from all Encumbrances and to enable the Purchaser to exercise and receive all rights and benefits attaching to or arising from the Shares;
(k) with effect from Completion, the appointment as directors and secretary of the Company of such person or persons as the Purchaser shall have nominated and the resignation of each of the Directors (except ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ and ▇▇▇▇ ▇▇▇▇▇Central, Hong Kong or any other place as the Parties may agree at 5:00 p.m. on a Friday of the week immediately following the week when the Approval is granted by the SFC, when the following business shall simultaneously be transacted :-
(a) the Purchaser shall deliver to the Vendor the following :-
(i) a solicitor's cheque for payment of the balance of the Consideration and the secretary Vendor's Solicitors will release the Deposit to the Vendor; and
(ii) a certified copy of each of the minutes of the board of directors of the Purchaser and the Guarantor approving this Agreement and authorizing/confirming the authorization of an authorised person for signing of this Agreement and (for the Purchaser) the bought note and the instrument of transfer and any other incidental documents hereof;
(b) the Vendor shall deliver to the Purchaser the following :-
(i) sold notes and instrument of transfer in favour of the Purchaser in respect of the Sale Shares all executed by the Vendor in accordance with the Stamp Duty Ordinance;
(ii) original share certificate(s) or re-issued share certificate(s) in respect of the Sale Shares;
(iii) such other documents as may be reasonably required to give a good and effective transfer of title to the Sale Shares to the Purchaser and to enable them to become the registered holders thereof;
(iv) a cheque drawn in favour of the Government of the Hong Kong Special Administrative Region for an amount equivalent to the stamp duty payable under the Stamp Duty Ordinance in respect of the sold notes in respect of the Sale Shares;
(v) a certified copy of the minutes of the board of directors of the Vendor (if the Vendor is a corporate) approving the sale of the Sale Shares and authorizing/confirming the authorization of an authorised person for signing of this Agreement and the sold note and the instrument of transfer and any other incidental documents hereof;
(vi) to the extent that the same are not already in the possession of the Company by delivery or its agents, the certificate of a letter under incorporation, business registration certificate, common seal from each such Director and the secretary resigning from his offices and from any employment he may have with the Company with effect from Completion and acknowledging that he has no claim against the Company either actual or contingent in respect of any cause matter or thing (statutory or otherwise);
(l) the resignation of the auditors of the Company (without compensation for loss of office or any other claim save for proper professional fees for services rendered in respect of their duties as auditors prior to the completion of the 1997 Audit) with effect from completion of the 1997 Audit and the delivery of a statement by them that there are no circumstances connected with their ceasing to hold office which they consider should be brought to the attention of the members or creditors of the Company;
(m) revocation , all copies of all existing authorities to the bankers memorandum and articles of the Company relating to bank accounts and the grant of authority to such persons as the Purchaser may nominate to operate the same;
(n) that all books, records and files of the Company are in its possession or under its control and where any such are not at the Properties that the Purchaser is given details of their whereabouts and any necessary authority to collect them;
(o) the delivery to the Purchaser of duly completed and executed transfers of all shares in the capital of Firstpoint Services Limited not registered in the name association of the Company, the statutory books and common seal (if any) of Firstpoint Services Limited and certificates for all of the issued shares in Firstpoint Services Limited.
4.3 Immediately following fulfilment Company duly made up to date, any unissued share certificates, all current insurance policies, books and accounts and other records, cheque books, title deeds and evidence of ownership to all the matters referred to in Clause 4.2 the Purchaser shall:
(a) procure that that part assets of the Consideration payable in cash on Completion is paid by bankers draft to the Vendor's Solicitors (who are hereby irrevocably authorised to receive that consideration) on behalf of the VendorCompany and all current contracts;
(bvii) deliver to the Vendor's Solicitors a counterpart an original of the Tax Covenant Disclosure Letter duly executed by the Vendor in the form identical to that attached as Schedule 3 hereto or with lesser disclosures;
(c) the Vendor shall cause a meeting of the board of directors of the Company to be held at which resolutions shall be passed to :-
(i) approve the transfer of the Sale Shares;
(ii) register (subject to stamping) the transfer of the Sale Shares referred to above and to issue new certificate(s) for the Sale Shares in the name(s) of the Purchaser;
(ciii) if requested, appoint one person as the Purchaser may nominate as the Chairman of the Company and at such person(s) as the Vendor's cost, deliver Purchaser may nominate as director(s) of the Company and (subject to the Vendor's Solicitors a legal opinion in a form reasonably satisfactory to the Vendor as to the validity and enforceability approval of the guarantee contained within Clause 11 SFC) one person as the Purchaser may nominate as the Responsible Officer of this Agreement the Company all to take effect from the close of business of the said meeting if so required by the Purchaser; and
(iv) amend all banking authorisations, instructions and if mandates of the Company in such opinion is that such guarantee is not valid and enforceable such amendments shall be made to manner as the guarantee as render it valid and enforceablePurchaser may direct; and
(d) as agent for the Company, repay the Inter-Company Debt by bankers draft to the Vendor's Solicitors (who are hereby irrevocably authorised to receive that payment) on behalf of the Vendor and its subsidiaries and Associates. The delivery of a bankers draft to the Vendor's Solicitors shall be a full and sufficient discharge to the Purchaser for the monies payable on Completion and the Purchaser shall not be concerned to see to the application of any payment by the Purchaser under this Clause 4.3.
4.4 If all the provisions of Clause 4.2 are not complied with in full on Completion the Purchaser may:-
(ai) defer Completion to a date not more than 28 days after the date specified in Clause 4.1 in which event the provisions of this Clause 4.4 shall apply to Completion as so deferred; or
(b) proceed to Completion so far as practicable without prejudice to its rights under this Agreement or otherwise and so that any provision of Clause 4.2 which may not have been complied with at Completion shall at the sole discretion of the Purchaser be held over to such future date or dates as the Purchaser may in its sole discretion determine; or
(c) terminate this Agreement (save produce for Clauses 12, 13, 14 and 20, which shall remain in full force and effect) provided that such termination shall not affect the rights and obligations of the parties which have accrued prior to termination and shall not limit or exclude any other rights or remedies of the Purchaser in respect of any failure inspection by the Vendor to comply with the requirements of Clause 4.2 on the due date.
4.5 The Vendor shall use all reasonable endeavours to procure compliance with the provisions of Clause 4.2 on any date set for Completion in accordance with this Agreement.
4.6 The Vendor undertakes to and covenants with the Purchaser (for itself and as trustee for the Company) that if, after Completion, it is discovered that the Company had on or before Completion given or undertaken any guarantees, indemnities or similar securities bought notes in respect of the obligations or liabilities Sale Shares executed by the Purchaser in compliance with the Stamp Duty Ordinance; and
(ii) procure the stamping of the bought and sold notes and the instrument of transfer in respect of the Sale Shares as soon as practicable thereafter and present the said instrument of transfer together with the share certificate(s) in respect of the Sale Shares to the Company for registration of the transfer.
4.2 The transactions described in Clause 4.1 hereof shall take place at the same time, so that in default of the performance of any person such transactions by a Party, the other than Party shall not be obliged to complete the Company sale and such guarantees, indemnities or similar securities were not finally and unconditionally released on or before purchase aforesaid.
4.3 Immediately after Completion, the Vendor will fully indemnify the Purchaser and the Company Vendor shall enter into an option agreement in the form and keep each of them fully indemnified on demand against all claims, demands, actions, proceedings, damages, losses, costs, expenses or liabilities suffered or incurred by the Purchaser or the Company under or substance as set out in connection with such guarantees, indemnities or similar obligationsSchedule 4 hereto.
Appears in 1 contract
Sources: Agreement for the Sale and Purchase of Shares (China Finance Online Co. LTD)
Completion. 4.1 The following events shall occur on the First Completion shall take place at the offices of the Purchaser's Solicitors immediately following the signing of this Agreement or at such other place or time as the Vendor and the Purchaser may agree.
4.2 At Completion the Vendor shall procureDate:
(a) the delivery Seller shall deliver or cause to be delivered to the Purchaser of duly completed and executed transfers of the Shares by the registered holders of the Shares in favour of the Purchaser or its nominees together with valid share certificates representing the Shares and all (if any) other documents required to give good title to the Shares;
(b) the delivery to the Purchaser of powers of attorney in the agreed form duly executed by the registered holders of the Shares;
(c) the delivery to the Purchaser of the Tax Covenant duly executed by the Vendor;
(d) the delivery to the Purchaser of the following, each duly executed and in form and substance satisfactory to the Purchaser:-Buyer:
(i) a deed duly executed instrument of release given transfer in relation to respect of the Company GuaranteeFirst Tranche Shares;
(ii) a deed of release by each person holding or being entitled to any Encumbrance over the Shares or any share certificate and/or a duly executed indemnity for a lost share certificate in respect of the assets First Tranche Shares;
(iii) a duly executed power of attorney granted by the Seller in favour of the Buyer in respect of the First Tranche Shares as regards the exercise by the Buyer of the voting and other rights attaching to the First Tranche Shares pending stamping of the stock transfer form in respect of the First Tranche Shares by HMRC;
(iv) copies of a resolution passed by the board of directors of the Seller and of the Company, approving the Buyer’s acquisition of the Sale Shares; and
(v) such other documents (including any necessary waivers of pre-emption rights, consents, release or other document) as may be required to enable the Buyer, subject to stamping of the instrument of transfer (or adjudication by HMRC that no stamp duty is payable), to be registered as the full legal and beneficial owner of the First Tranche Shares; and
(b) conditional upon the Seller complying with its obligations in clause 4.1(a), the Buyer shall pay the relevant amount of the Consideration in accordance with clause 3.3(a) by electronic funds transfer to the Seller’s Nominated Account.
4.2 The following events shall, subject to the Second Completion Condition having been satisfied, occur on the Second Completion Date:
(a) the Seller shall deliver or cause to be delivered to the Buyer:
(i) a duly executed instrument of transfer in respect of the Second Tranche Shares;
(ii) a share certificate and/or a duly executed indemnity for a lost share certificate in respect of the Second Tranche Shares;
(iii) a duly executed power of attorney granted by the Seller in favour of the Buyer in respect of the Second Tranche Shares as regards the exercise by the Buyer of the voting and other rights attaching to the Second Tranche Shares pending stamping of the stock transfer form in respect of the Second Tranche Shares by HMRC; and
(iv) such other documents (including any necessary waivers of pre-emption rights, consents, release or other document) as may be required to enable the Buyer to be registered as the full legal and beneficial owner of the Second Tranche Shares; and
(b) conditional upon the Seller complying with its obligations in clause 4.2(a), the Buyer shall pay the relevant amount of the Consideration in accordance with clause 3.3(b) by electronic funds transfer to the Seller’s Nominated Account.
4.3 The following events shall, subject to the Third Completion Condition having been satisfied, occur on the Third Completion Date:
(a) the Seller shall deliver or cause to be delivered to the Buyer:
(i) a duly executed instrument of transfer in respect of the Third Tranche Shares;
(ii) a share certificate and/or a duly executed indemnity for a lost share certificate in respect of the Third Tranche Shares;
(iii) a duly executed power of attorney granted by the Seller in favour of the Buyer in respect of the Third Tranche Shares as regards the exercise by the Buyer of the voting and other rights attaching to the Third Tranche Shares pending stamping of the stock transfer form in respect of the Third Tranche Shares by HMRC; and
(iv) such other documents (including any necessary waivers of pre-emption rights, consents, release or other document) as may be required to enable the Buyer to be registered as the full legal and beneficial owner of the Third Tranche Shares; and
(b) conditional upon the Seller complying with its obligations in clause 4.3(a), the Buyer shall pay the relevant amount of the Consideration in accordance with clause 3.3(c) by electronic funds transfer to the Seller’s Nominated Account.
4.4 The Seller acknowledges and agrees that the receipt by the Seller from the Buyer of the Consideration shall be a complete discharge by the Buyer of its obligations under clause 3.3.
4.5 Promptly following stamping by HMRC (or adjudication by HMRC that no such stamping is required) of the relevant stock transfer form in respect of each of the First Tranche Shares, the Second Tranche Shares and the Third Tranche Shares, the Buyer shall present the duly stamped (or adjudicated) stock transfer form to the Company and the Seller shall procure that the Company shall promptly:
(a) register the transfer of the First Tranche Shares, the Second Tranche Shares and the Third Tranche Shares (as applicable) in the register of members of the Company;
(iiib) provide a deed copy of waiver by the Vendor waiving any claim it or any an updated shareholders’ register of its subsidiaries or Associates may have against the Company;, evidencing the transfer in favour of the Buyer of each of the First Tranche Shares, the Second Tranche Shares and the Third Tranche Shares (as applicable); and
(ivc) deeds of waiver by each co-guarantor of cause to be dispatched to the Company Buyer at no cost to the Buyer a share certificate (which may be in electronic form) in respect of the Company Guarantee;
(e) First Tranche Shares, the delivery to the Purchaser of the statutory books (duly written up to date) Second Tranche Shares and the certificate(s) of incorporation of the Company;
Third Tranche Shares (f) the delivery to the Purchaser of all current cheque books and deposit books relating to all bank accounts of the Company;
(g) the delivery to the Purchaser of all documents of title relating to the Properties;
(h) the delivery to the Purchaser of copies of the minutes of the meetings of the boards of directors of the Vendor in the agreed form, authorising (in each case) the entry into of the transaction the subject of this Agreement, approving this Agreement and any other agreements or documents to be executed pursuant to or in connection with it and appointing the relevant signatory to sign this Agreement and such other agreements and documents on their behalf certified by the company secretary of the Vendor together with (in each case) confirmation, in the agreed form, from the company secretary that the authority conferred remains valid at Completion;
(i) the passing of effective resolutions of the Directors resolving to register the transfers of the Shares subject only to stamping of the share transfers;
(j) (at the cost of the Vendor) the convening and holding of all such meetings, the passing of all such resolutions, the execution and delivery of all such documents and the taking of all other action to the extent reasonably necessary in order to complete the transfer of title to the Shares to the Purchaser free from all Encumbrances and to enable the Purchaser to exercise and receive all rights and benefits attaching to or arising from the Shares;
(k) with effect from Completion, the appointment as directors and secretary of the Company of such person or persons as the Purchaser shall have nominated and the resignation of each of the Directors (except ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ and ▇▇▇▇ ▇▇▇▇▇) and the secretary of the Company by delivery of a letter under seal from each such Director and the secretary resigning from his offices and from any employment he may have with the Company with effect from Completion and acknowledging that he has no claim against the Company either actual or contingent in respect of any cause matter or thing (statutory or otherwiseapplicable);
(l) the resignation of the auditors of the Company (without compensation for loss of office or any other claim save for proper professional fees for services rendered in respect of their duties as auditors prior to the completion of the 1997 Audit) with effect from completion of the 1997 Audit and the delivery of a statement by them that there are no circumstances connected with their ceasing to hold office which they consider should be brought to the attention of the members or creditors of the Company;
(m) revocation of all existing authorities to the bankers of the Company relating to bank accounts and the grant of authority to such persons as the Purchaser may nominate to operate the same;
(n) that all books, records and files of the Company are in its possession or under its control and where any such are not at the Properties that the Purchaser is given details of their whereabouts and any necessary authority to collect them;
(o) the delivery to the Purchaser of duly completed and executed transfers of all shares in the capital of Firstpoint Services Limited not registered in the name of the Company, the statutory books and common seal (if any) of Firstpoint Services Limited and certificates for all of the issued shares in Firstpoint Services Limited.
4.3 Immediately following fulfilment of all the matters referred to in Clause 4.2 the Purchaser shall:
(a) procure that that part of the Consideration payable in cash on Completion is paid by bankers draft to the Vendor's Solicitors (who are hereby irrevocably authorised to receive that consideration) on behalf of the Vendor;
(b) deliver to the Vendor's Solicitors a counterpart of the Tax Covenant duly executed by the Purchaser;
(c) if requested, and at the Vendor's cost, deliver to the Vendor's Solicitors a legal opinion in a form reasonably satisfactory to the Vendor as to the validity and enforceability of the guarantee contained within Clause 11 of this Agreement and if such opinion is that such guarantee is not valid and enforceable such amendments shall be made to the guarantee as render it valid and enforceable; and
(d) as agent for the Company, repay the Inter-Company Debt by bankers draft to the Vendor's Solicitors (who are hereby irrevocably authorised to receive that payment) on behalf of the Vendor and its subsidiaries and Associates. The delivery of a bankers draft to the Vendor's Solicitors shall be a full and sufficient discharge to the Purchaser for the monies payable on Completion and the Purchaser shall not be concerned to see to the application of any payment by the Purchaser under this Clause 4.3.
4.4 If all the provisions of Clause 4.2 are not complied with in full on Completion the Purchaser may:
(a) defer Completion to a date not more than 28 days after the date specified in Clause 4.1 in which event the provisions of this Clause 4.4 shall apply to Completion as so deferred; or
(b) proceed to Completion so far as practicable without prejudice to its rights under this Agreement or otherwise and so that any provision of Clause 4.2 which may not have been complied with at Completion shall at the sole discretion of the Purchaser be held over to such future date or dates as the Purchaser may in its sole discretion determine; or
(c) terminate this Agreement (save for Clauses 12, 13, 14 and 20, which shall remain in full force and effect) provided that such termination shall not affect the rights and obligations of the parties which have accrued prior to termination and shall not limit or exclude any other rights or remedies of the Purchaser in respect of any failure by the Vendor to comply with the requirements of Clause 4.2 on the due date.
4.5 The Vendor shall use all reasonable endeavours to procure compliance with the provisions of Clause 4.2 on any date set for Completion in accordance with this Agreement.
4.6 The Vendor undertakes A Party is not obligated to and covenants complete this Agreement unless the other Parties comply with the Purchaser all of their obligations under clause 4.1, clause 4.2 or clause 4.3 (for itself and as trustee for the Company) that if, after Completion, it is discovered that the Company had on or before Completion given or undertaken any guarantees, indemnities or similar securities in respect of the obligations or liabilities of any person other than the Company and such guarantees, indemnities or similar securities were not finally and unconditionally released on or before Completion, the Vendor will fully indemnify the Purchaser and the Company and keep each of them fully indemnified on demand against all claims, demands, actions, proceedings, damages, losses, costs, expenses or liabilities suffered or incurred by the Purchaser or the Company under or in connection with such guarantees, indemnities or similar obligationsapplicable).
Appears in 1 contract
Sources: Sale and Purchase Agreement (Selina Hospitality PLC)
Completion. 4.1 Completion shall take place at the offices of the Purchaser's Solicitors immediately on the Completion Date when, subject to clause 4.6, all the transactions mentioned in the following the signing provisions of this Agreement or at such other place or time as the Vendor and the Purchaser may agreeclause 4 shall take place.
4.2 At Completion the The Vendor shall procuredeliver to the Purchaser:
(a) the delivery to the Purchaser of 4.2.1 duly completed and executed signed transfers of the Shares by the registered holders of the Shares in favour of the Purchaser or its nominees as it may direct in respect of all of the Sale Shares together with valid the relative share certificates representing in the name of the Vendor or, in respect of any of the Sale Shares and all (if any) other documents required to give good title to which are not registered in the Sharesname of the Vendor, executed Stock Transfer forms in respect of such shares in favour of the Purchaser, together with the relative share certificates in the names of the relevant transferors;
(b) 4.2.2 the delivery to the Purchaser Deed of powers of attorney in the agreed form duly executed by the registered holders of the Shares;
(c) the delivery to the Purchaser of the Tax Covenant duly executed by the Vendor;
(d) 4.2.3 the delivery to the Purchaser of the following, each duly executed and in form and substance satisfactory to the Purchaser:-
(i) a deed of release given in relation to the Company Guarantee;
(ii) a deed of release by each person holding or being entitled to any Encumbrance over the Shares or any of the assets of the Company;
(iii) a deed of waiver by the Vendor waiving any claim it or any of its subsidiaries or Associates may have against the Company;
(iv) deeds of waiver by each co-guarantor of the Company in respect of the Company Guarantee;
(e) the delivery to the Purchaser of the statutory books (duly written up to date) and the certificate(s) of incorporation of the Company;
(f) the delivery to the Purchaser of all current cheque books and deposit books relating to all bank accounts of the Company;
(g) the delivery to the Purchaser of all documents of title relating to the Properties;
(h) the delivery to the Purchaser of copies of the minutes of the meetings of the boards of directors of the Vendor in the agreed form, authorising (in each case) the entry into of the transaction the subject of this Agreement, approving this Agreement and any other agreements or documents to be executed pursuant to or in connection with it and appointing the relevant signatory to sign this Agreement and such other agreements and documents on their behalf certified by the company secretary of the Vendor together with (in each case) confirmation, in the agreed form, from the company secretary that the authority conferred remains valid at Completion;
(i) the passing of effective resolutions of the Directors resolving to register the transfers of the Shares subject only to stamping of the share transfers;
(j) (at the cost resignations of the Vendor) the convening and holding of all such meetings, the passing of all such resolutions, the execution and delivery of all such documents 's Directors and the taking of all other action to the extent reasonably necessary in order to complete the transfer of title to the Shares to the Purchaser free secretary (Michelle Jay Palmer) from all Encumbrances and to enable the Purchaser to exercise and receive all rights and benefits attaching to or arising from the Shares;
(k) with effect from Completion, the appointment as directors and secretary of the Company of such person or persons as the Purchaser shall have nominated and the resignation of each of the Directors (except ▇▇▇▇▇ ▇their respective o▇▇▇▇▇▇ ▇▇n ▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ and ▇▇▇▇ ▇▇▇▇▇) and the secretary member of the Company by delivery of Group, with a letter written acknowledgement under seal from each of them in such Director and form as the secretary resigning from his offices and from any employment he may have with the Company with effect from Completion and acknowledging Purchaser requires that he has no claim against any member of the Company either actual Group in respect of breach of contract, compensation for loss of office, redundancy or contingent unfair dismissal or on any other grounds whatsoever;
4.2.4 the written resignation of the existing auditors of each member of the Group to take effect on the Completion Date confirming that they have no outstanding claims of any kind against any member of the Group and containing a statement complying with CA s394;
4.2.5 such waivers or consents as the Purchaser may require to enable the Purchaser or its nominees to be registered as holders of any of the Sale Shares in the Agreed Form;
4.2.6 an unconditional deed of release from each member of the Group's bankers evidencing the release and discharge of all guarantees and charges granted by each member of the Group together with a release from the Vendor Group's bankers in respect of any cause matter or thing (statutory or otherwise)security granted by the Vendor Group over the Sale Shares;
(l) the resignation 4.2.7 certified copies of any powers of attorney under which any of the auditors of the Company (without compensation for loss of office documents referred to in this clause 4.2 is executed or any other claim save for proper professional fees for services rendered in respect of their duties as auditors prior to the completion of the 1997 Audit) with effect from completion of the 1997 Audit and the delivery of a statement by them that there are no circumstances connected with their ceasing to hold office which they consider should be brought to the attention of the members or creditors of the Company;
(m) revocation of all existing authorities to the bankers of the Company relating to bank accounts and the grant of authority to such persons as the Purchaser may nominate to operate the same;
(n) that all books, records and files of the Company are in its possession or under its control and where any such are not at the Properties that the Purchaser is given details of their whereabouts and any necessary authority to collect them;
(o) the delivery evidence satisfactory to the Purchaser of duly completed and the authority of any person signing on its behalf;
4.2.8 irrevocable powers of attorney (in the Agreed Form) executed by the Vendor in favour of the Purchaser, or its nominees, enabling the Purchaser or its nominees, pending registration of the transfers of the Sale Shares to exercise all shares in voting and other rights attaching to the capital of Firstpoint Services Limited not registered in the name of the Company, Sale Shares and to appoint proxies for such purpose;
4.2.9 the statutory books of each member of the Group complete and up to date and their certificates of incorporation, cheque books, common seal seals (if any) of Firstpoint Services Limited and certificates for all any unused share certificate forms;
4.2.10 the title deeds relating to each of the issued shares in Firstpoint Services Limited.
4.3 Immediately following fulfilment of all the matters referred to in Clause 4.2 the Purchaser shall:
(a) procure that that part of the Consideration payable in cash on Completion is paid by bankers draft to the Vendor's Solicitors (who are hereby irrevocably authorised to receive that consideration) on behalf of the VendorProperties;
(b) deliver to the Vendor's Solicitors a counterpart of the Tax Covenant duly executed by the Purchaser;
(c) if requested, and at the Vendor's cost, deliver to the Vendor's Solicitors a legal opinion in a form reasonably satisfactory to 4.2.11 written confirmation from the Vendor as to the validity for itself and enforceability of the guarantee contained within Clause 11 of this Agreement and if such opinion is that such guarantee is not valid and enforceable such amendments shall be made to the guarantee as render it valid and enforceable; and
(d) as agent for the Company, repay the Inter-Company Debt by bankers draft to the Vendor's Solicitors (who are hereby irrevocably authorised to receive that payment) on behalf of the Vendor Group that there are no subsisting guarantees given by any member of the Group in their favour and its subsidiaries that after compliance with clause 4.3 the Vendor and Associates. The delivery any member of a bankers draft to the Vendor's Solicitors shall be a full and sufficient discharge to the Purchaser for the monies payable on Completion and the Purchaser shall Vendor Group will not be concerned indebted to see to the application of any payment by the Purchaser under this Clause 4.3.
4.4 If all the provisions of Clause 4.2 are not complied with in full on Completion the Purchaser may:
(a) defer Completion to a date not more than 28 days after the date specified in Clause 4.1 in which event the provisions of this Clause 4.4 shall apply to Completion as so deferred; or
(b) proceed to Completion so far as practicable without prejudice to its rights under this Agreement or otherwise and so that any provision of Clause 4.2 which may not have been complied with at Completion shall at the sole discretion member of the Purchaser be held over to such future date Group or dates as the Purchaser may in its sole discretion determine; or
(c) terminate this Agreement (save for Clauses 12, 13, 14 and 20, which shall remain in full force and effect) provided that such termination shall not affect the rights and obligations of the parties which have accrued prior to termination and shall not limit or exclude any other rights or remedies of the Purchaser in respect of any failure by the Vendor to comply with the requirements of Clause 4.2 on the due datevice versa.
4.5 The Vendor shall use all reasonable endeavours to procure compliance with the provisions of Clause 4.2 on any date set for Completion in accordance with this Agreement.
4.6 The Vendor undertakes to and covenants with the Purchaser (for itself and as trustee for the Company) that if, after Completion, it is discovered that the Company had on or before Completion given or undertaken any guarantees, indemnities or similar securities in respect of the obligations or liabilities of any person other than the Company and such guarantees, indemnities or similar securities were not finally and unconditionally released on or before Completion, the Vendor will fully indemnify the Purchaser and the Company and keep each of them fully indemnified on demand against all claims, demands, actions, proceedings, damages, losses, costs, expenses or liabilities suffered or incurred by the Purchaser or the Company under or in connection with such guarantees, indemnities or similar obligations.
Appears in 1 contract
Sources: Share Sale and Purchase Agreement (4front Technologies Inc)
Completion. 4.1 Completion shall take place at the offices of the Purchaser's Solicitors immediately following the signing of this Agreement or at such other place or time as the Vendor and the Purchaser may agree.
4.2 At 5.1 On Completion the Vendor shall procure:shall:-
(a) the delivery deliver or cause to be delivered to the Purchaser of duly completed and executed transfers of the Shares by the registered holders of the Shares in favour of the Purchaser or its nominees together with valid share certificates representing the Shares and all (if any) other documents required to give good title to the Shares;
(b) the delivery to the Purchaser of powers of attorney in the agreed form duly executed by the registered holders of the Shares;
(c) the delivery to the Purchaser of the Tax Covenant duly executed by the Vendor;
(d) the delivery to the Purchaser of the following, each duly executed and in form and substance satisfactory to the Purchaser:-Purchaser:
(i) a deed the share certificates of release given the Sale Shares duly endorsed in relation to the Company Guaranteeblank (together with any coupons and/or talons appertaining thereto);
(ii) a deed resignations of release by each person holding or being entitled to any Encumbrance over the Shares or any of the assets of the Company;
(iii) a deed of waiver by the Vendor waiving any claim it or any of its subsidiaries or Associates may have against the Company;
(iv) deeds of waiver by each co-guarantor of the Company in respect of the Company Guarantee;
(e) the delivery to the Purchaser of the statutory books (duly written up to date) Arne Jan ▇▇▇▇ Waselius and the certificate(s) of incorporation of the Company;
(f) the delivery to the Purchaser of all current cheque books and deposit books relating to all bank accounts of the Company;
(g) the delivery to the Purchaser of all documents of title relating to the Properties;
(h) the delivery to the Purchaser of copies of the minutes of the meetings of the boards of directors of the Vendor in the agreed form, authorising (in each case) the entry into of the transaction the subject of this Agreement, approving this Agreement and any other agreements or documents to be executed pursuant to or in connection with it and appointing the relevant signatory to sign this Agreement and such other agreements and documents on their behalf certified by the company secretary of the Vendor together with (in each case) confirmation, in the agreed form, from the company secretary that the authority conferred remains valid at Completion;
(i) the passing of effective resolutions of the Directors resolving to register the transfers of the Shares subject only to stamping of the share transfers;
(j) (at the cost of the Vendor) the convening and holding of all such meetings, the passing of all such resolutions, the execution and delivery of all such documents and the taking of all other action to the extent reasonably necessary in order to complete the transfer of title to the Shares to the Purchaser free from all Encumbrances and to enable the Purchaser to exercise and receive all rights and benefits attaching to or arising from the Shares;
(k) with effect from Completion, the appointment as directors and secretary of the Company of such person or persons as the Purchaser shall have nominated and the resignation of each of the Directors (except ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇as directors of the Company in the agreed form duly executed by each person resigning;
(iii) the statutory books of the Company complete and accurate up to Completion including share and shareholders' registers of the Company; Articles of Association duly reflecting the true and complete information of the Company in force at Completion, ▇▇▇▇▇▇ ▇▇▇▇▇ ▇and all cheque books of the Company;
(iv) the Tax Deed duly executed by the Covenantors;
(v) the Disclosure Letter;
(vi) the License Agreements duly executed by K-Tel UK and Dominion Entertainment Inc (as applicable);
(vii) a copy of the board minutes certified by ▇▇▇▇▇▇▇ Street & Deinard (and ▇▇▇▇ ▇▇▇▇▇an up to date copy of the memorandum and articles of association) of the Vendor approving the entering into of this agreement and any other documents referred to in this agreement and authorising its officers or other appointees or attorneys to sign this agreement on the Vendor's behalf;
(viii) the Inter-company Termination Deed duly executed by the Vendor and the secretary Company
(ix) the Trademark License duly executed by the Vendor and the Company
(b) repay or procure the repayment in full of all amounts owing (even if not due for repayment) to the Company by delivery any of a letter under seal from each such Director the Vendor's Group or any connected persons or associates or directors of them or any of them and the secretary resigning from his offices and from any employment he may have with shall procure that all indemnities given by or binding on the Company with effect from Completion and acknowledging that he has no claim against the Company either actual or contingent in respect of any cause matter liabilities or thing obligations (statutory actual or otherwise);
(lcontingent) the resignation of any of the auditors Vendor's Group or and of such connected persons or associates or directors are fully and effectively released without cost to the Company
5.2 Immediately after Completion the Purchaser shall procure the holding of a meeting of the Company (without compensation for loss board of office directors or any other claim save for proper professional fees for services rendered in respect of their duties as auditors prior to the completion of the 1997 Audit) with effect from completion of the 1997 Audit and the delivery of a statement by them that there are no circumstances connected with their ceasing to hold office which they consider should be brought to the attention of the members or creditors of the Company;
(m) revocation of all existing authorities to the bankers of the Company relating to bank accounts and the grant of authority to such persons as the Purchaser may nominate to operate the same;
(n) that all books, records and files of the Company are in its possession or under its control and where any such are not at the Properties that the Purchaser is given details of their whereabouts and any necessary authority to collect them;
(o) the delivery to the Purchaser of duly completed and executed transfers of all shares in the capital of Firstpoint Services Limited not registered in the name shareholders of the Company, as the statutory books and common seal (if any) of Firstpoint Services Limited and certificates for all case may be, at which the present members of the issued shares in Firstpoint Services Limited.
4.3 Immediately following fulfilment board of all the matters referred to in Clause 4.2 the Purchaser shall:
(a) procure that that part directors of the Consideration payable in cash on Completion is paid by bankers draft Company shall, to the Vendor's Solicitors (who are hereby irrevocably authorised to receive that consideration) on behalf of the Vendor;
(b) deliver to the Vendor's Solicitors a counterpart of the Tax Covenant duly executed extent required by the Purchaser;
(c) if requested, and at the Vendor's cost, deliver to the Vendor's Solicitors a legal opinion in a form reasonably satisfactory to the Vendor as to the validity and enforceability of the guarantee contained within Clause 11 of this Agreement and if such opinion is that such guarantee is not valid and enforceable such amendments shall Completion Date be made to the guarantee as render it valid and enforceable; and
(d) as agent for the Company, repay the Inter-Company Debt by bankers draft to the Vendor's Solicitors (who are hereby irrevocably authorised to receive that payment) on behalf of the Vendor and its subsidiaries and Associates. The delivery of a bankers draft to the Vendor's Solicitors shall be a full and sufficient discharge to the Purchaser for the monies payable on Completion and the Purchaser shall not be concerned to see to the application of any payment by the Purchaser under this Clause 4.3.
4.4 If all the provisions of Clause 4.2 are not complied with in full on Completion the Purchaser may:
(a) defer Completion to a date not more than 28 days after the date specified in Clause 4.1 in which event the provisions of this Clause 4.4 shall apply to Completion as so deferred; or
(b) proceed to Completion so far as practicable without prejudice to its rights under this Agreement or otherwise and so that any provision of Clause 4.2 which may not have been complied with at Completion shall at the sole discretion of the Purchaser be held over to such future date or dates as the Purchaser may in its sole discretion determine; or
(c) terminate this Agreement (save for Clauses 12, 13, 14 and 20, which shall remain in full force and effect) provided that such termination shall not affect the rights and obligations of the parties which have accrued prior to termination and shall not limit or exclude any other rights or remedies of the Purchaser in respect of any failure by the Vendor to comply substituted with the requirements of Clause 4.2 on the due date.
4.5 The Vendor shall use all reasonable endeavours to procure compliance with the provisions of Clause 4.2 on any date set for Completion in accordance with this Agreement.
4.6 The Vendor undertakes to and covenants with the Purchaser (for itself and as trustee for the Company) that if, after Completion, it is discovered that the Company had on or before Completion given or undertaken any guarantees, indemnities or similar securities in respect of the obligations or liabilities of any person other than the Company and such guarantees, indemnities or similar securities were not finally and unconditionally released on or before Completion, the Vendor will fully indemnify the Purchaser and the Company and keep each of them fully indemnified on demand against all claims, demands, actions, proceedings, damages, losses, costs, expenses or liabilities suffered or incurred new members appointed by the Purchaser or the Company under or in connection with such guarantees, indemnities or similar obligations.Purchaser
Appears in 1 contract
Completion. 4.1 7.1 Completion shall will take place at the offices office of the Purchaser's Solicitors immediately following Sellers' Lawyers on the signing of this Agreement or at such other place or time as the Vendor and the Purchaser may agreeCompletion Date.
4.2 7.2 At Completion each of the Vendor shall procureSellers must:
(a) 7.2.1 give the delivery to the Purchaser of duly completed and executed transfers of the Shares by the registered holders of the Shares in favour of the Purchaser or its nominees together with valid share certificates representing the Shares and all (if any) other documents required to give good title to the Shares;
(b) the delivery to the Purchaser of powers of attorney Buyer those items set out in the agreed form duly executed by the registered holders of the Shares;
(c) the delivery to the Purchaser of the Tax Covenant duly executed by the Vendor;
(d) the delivery to the Purchaser of the following, each duly executed and in form and substance satisfactory to the Purchaser:-
(i) a deed of release given in relation to the Company Guarantee;
(ii) a deed of release by each person holding or being entitled to any Encumbrance over the Shares or any of the assets of the Company;
(iii) a deed of waiver by the Vendor waiving any claim it or any of its subsidiaries or Associates may have against the Company;
(iv) deeds of waiver by each co-guarantor of the Company Completion Agenda in respect of the Company Guarantee;
(e) the delivery to the Purchaser of the statutory books (duly written up to date) and the certificate(s) of incorporation of the Company;
(f) the delivery to the Purchaser of all current cheque books and deposit books relating to all bank accounts of the Company;
(g) the delivery to the Purchaser of all documents of title relating to the Properties;
(h) the delivery to the Purchaser of copies of the minutes of the meetings of the boards of directors of the Vendor in the agreed form, authorising (in each case) the entry into of the transaction the subject of this Agreement, approving this Agreement and any other agreements or documents Sale Shares to be executed pursuant to or in connection with it and appointing the relevant signatory to sign this Agreement and such other agreements and documents on their behalf certified sold by the company secretary of the Vendor together with (in each case) confirmationhim hereunder and, in the agreed form, from the company secretary that the authority conferred remains valid at Completion;
(i) the passing case of effective resolutions of the Directors resolving to register the transfers of the Shares subject only to stamping of the share transfers;
(j) (at the cost of the Vendor) the convening and holding of all such meetings, the passing of all such resolutions, the execution and delivery of all such documents and the taking of all other action to the extent reasonably necessary in order to complete the transfer of title to the Shares to the Purchaser free from all Encumbrances and to enable the Purchaser to exercise and receive all rights and benefits attaching to or arising from the Shares;
(k) with effect from Completion, the appointment as directors and secretary of the Company of such person or persons as the Purchaser shall have nominated and the resignation of each of the Directors (except John ▇▇▇▇▇ ▇▇▇ Rene ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇anen his duly executed resignation as a director of the Company in the agreed form and in the case of Citicorp Capital Investors Europe Limited, ▇▇▇the duly executed resignations of each of Mich▇▇▇ ▇▇▇▇▇ ▇▇▇ Jame▇ ▇▇▇ ▇▇ directors of the Company in the agreed form and each of the Sellers will use all reasonable endeavors to procure (so far as lies within his power to procure) that Dr. J Seml▇▇ ▇▇▇ivers his duly executed resignation as director of the Company in the agreed form.
7.2.2 only in the circumstances described in Clause 4.1, give the Buyer a copy of the Escrow Letter and the Sellers Escrow Instruction signed by him and (insofar as it is within his power to procure) a copy of the Optionholders Escrow Instructions instruction signed by all the Optionholders and (insofar as it lies within his power to procure) a copy of the Escrow Letter and of the Sellers Escrow Instruction and the Optionholders Escrow Instruction signed on behalf of the Sellers Lawyers and (insofar as lies within his power to procure) a copy of the Escrow Letter signed on behalf of the Company.
7.3 At Completion the Buyer must:
7.3.1 pay the Aggregate Consideration to the Sellers Lawyers Client Account in accordance with Clause 3.5; and
7.3.2 only in the circumstances described in Clause 4.1, deliver to the Sellers lawyers a copy of the Escrow Letter and the Sellers Escrow Instructions and the Optionholders Escrow Instructions signed on behalf of the Buyer
7.4 At Completion each of the Sellers (in respect of the Sale Shares being sold by it hereunder) and the Buyer shall execute, and the Company shall execute, in the presence of a Dutch notary (notaris), Share Transfer Deeds in relation to all the Sale Shares. (For the avoidance of doubt, the Deeds in respect of the shares being sold by W. P▇▇▇▇, ▇ Bail▇▇▇, ▇. ▇▇▇▇▇▇ and ▇▇▇ D. O▇▇ ▇▇▇▇▇) l be executed by Mourant & Co Trustees Limited, the registered holder of those shares and the secretary of the Company by delivery of a letter under seal from each such Director and the secretary resigning from his offices and from any employment he may have with the Company with effect from Completion and acknowledging that he has no claim against the Company either actual or contingent Deeds in respect of any cause matter or thing (statutory or otherwisethe shares being sold by Bott▇ & ▇ompany Limited will be executed by Goulditar Nominees Limited, the registered holder of those shares.);
(l) 7.5 The Buyer may elect by notice in writing to the resignation CEO on behalf of the auditors of the Company (without compensation for loss of office or any other claim save for proper professional fees for services rendered in respect of their duties as auditors prior Sellers to the completion of the request a Completion Date earlier than 31 October 1997 Audit) with effect from completion of the 1997 Audit and the delivery of a statement by them that there are no circumstances connected with their ceasing to hold office which they consider should be brought to the attention of the members or creditors of the Company;
(m) revocation of all existing authorities to the bankers of the Company relating to bank accounts and the grant of authority Sellers will agree to such persons as the Purchaser may nominate to operate the same;
(n) that all books, records and files of the Company are in its possession or under its control and where any such are not at the Properties that the Purchaser is given details of their whereabouts and any necessary authority to collect them;
(o) the delivery to the Purchaser of duly completed and executed transfers of all shares in the capital of Firstpoint Services Limited not registered in the name of the Company, the statutory books and common seal (if any) of Firstpoint Services Limited and certificates for all of the issued shares in Firstpoint Services Limited.
4.3 Immediately following fulfilment of all the matters referred to in Clause 4.2 the Purchaser shallrequest provided that:
(a) procure that that part of the Consideration payable in cash on Completion is the distribution referred to in Clause 2.2 will be calculated and paid by bankers draft to the Vendor's Solicitors (who are hereby irrevocably authorised to receive that consideration) as if Completion was taking place on behalf of the Vendor31 October 1997;
(b) deliver notwithstanding any provision to the Vendor's Solicitors a counterpart of the Tax Covenant duly executed by the Purchaser;
(c) if requestedcontrary in this Agreement, and at the Vendor's cost, deliver to the Vendor's Solicitors a legal opinion in a form reasonably satisfactory to the Vendor as to the validity and enforceability of the guarantee contained within Clause 11 of this Agreement and if such opinion is that such guarantee is not valid and enforceable such amendments shall be made to the guarantee as render it valid and enforceable; and
(d) as agent for the Company, repay the Inter-Company Debt by bankers draft to the Vendor's Solicitors (who are hereby irrevocably authorised to receive that payment) on behalf of the Vendor and its subsidiaries and Associates. The delivery of a bankers draft to the Vendor's Solicitors shall be a full and sufficient discharge to the Purchaser for the monies payable on Completion and the Purchaser shall not be concerned to see to the application of any payment by the Purchaser under this Clause 4.3.
4.4 If all the provisions of Clause 4.2 are not complied with in full on Completion the Purchaser may:
(a) defer Completion to a date not more than 28 days after the date specified in Clause 4.1 in which event the provisions of this Clause 4.4 shall apply to Completion as so deferred; or
(b) proceed to Completion so far as practicable without prejudice to its rights under this Agreement or otherwise Clauses 4, 5, 7.2.2 and so that any provision of Clause 4.2 which may not have been complied with at Completion shall at the sole discretion of the Purchaser be held over to such future date or dates as the Purchaser may in its sole discretion determine; or
(c) terminate this Agreement (save for Clauses 12, 13, 14 and 20, which shall remain in full force and effect) provided that such termination shall not affect the rights and obligations of the parties which have accrued prior to termination and shall not limit or exclude any other rights or remedies of the Purchaser in respect of any failure by the Vendor to comply with the requirements of Clause 4.2 on the due date7.
4.5 The Vendor shall use all reasonable endeavours to procure compliance with the provisions of Clause 4.2 on any date set for Completion in accordance with this Agreement.
4.6 The Vendor undertakes to and covenants with the Purchaser (for itself and as trustee for the Company) that if, after Completion, it is discovered that the Company had on or before Completion given or undertaken any guarantees, indemnities or similar securities in respect of the obligations or liabilities of any person other than the Company and such guarantees, indemnities or similar securities were not finally and unconditionally released on or before Completion, the Vendor will fully indemnify the Purchaser and the Company and keep each of them fully indemnified on demand against all claims, demands, actions, proceedings, damages, losses, costs, expenses or liabilities suffered or incurred by the Purchaser or the Company under or in connection with such guarantees, indemnities or similar obligations.
Appears in 1 contract
Completion. 4.1 Completion shall take place at the offices of the PurchaserBuyer's Solicitors immediately following on the signing of this Agreement or at such other place or time as Completion Date upon the Vendor and the Purchaser may agreeexecution hereof.
4.2 At Completion the Vendor Seller shall procuredeliver or procure to be delivered to the Buyer those items set out in Schedule 2.
4.3 The Seller shall procure that the directors of the Company shall convene and at Completion hold a meeting of the board of directors of the Company at which the directors shall:
(a) the delivery to the Purchaser of duly completed and executed transfers of the Shares by the registered holders of the Shares vote in favour of the Purchaser or its nominees together with valid share certificates representing the Shares and all (if any) other documents required to give good title to the Shares;
(b) the delivery to the Purchaser of powers of attorney in the agreed form duly executed by the registered holders registration of the Shares;
(cBuyer and its nominee(s) the delivery to the Purchaser of the Tax Covenant duly executed by the Vendor;
(das member(s) the delivery to the Purchaser of the following, each duly executed and in form and substance satisfactory to the Purchaser:-
(i) a deed of release given in relation to the Company Guarantee;
(ii) a deed of release by each person holding or being entitled to any Encumbrance over the Shares or any of the assets of the Company;
(iii) a deed of waiver by the Vendor waiving any claim it or any of its subsidiaries or Associates may have against the Company;
(iv) deeds of waiver by each co-guarantor of the Company in respect of the Shares (subject to the production of duly stamped transfers);
(b) revoke all existing mandates for the operation of bank accounts and issue new mandates giving authority to persons nominated by the Buyer;
(c) change the registered office of the Company Guaranteeto such place as is nominated by the Buyer;
(d) appoint such persons as the Buyer may nominate as directors, secretary and auditors of the Company with immediate effect and approve the resignations of such persons as directors, secretary and auditors as may be required by the Buyer;
(e) approve and authorise the delivery to execution by the Purchaser Company of the statutory books (duly written up to date) and the certificate(s) of incorporation of the Company;Tax Deed; and
(f) approve and authorise the delivery execution by the Company of the Trade ▇▇▇▇ Licence.
4.4 The Seller shall procure at Completion:
(a) the waiver and release of all debts owed by the Company (whether then due for payment or not) to the Purchaser of all current cheque books Seller and deposit books relating to all bank accounts of the CompanyBrightpoint, Inc. or its Affiliates;
(gb) the delivery discharge of all monies owing to the Purchaser Company (whether then due for payment or not) by the Seller or any director of the Company or by any of them or any Connected Person; and
(c) the release of any and all documents guarantees or indemnities or security given by the Company for or on behalf of title relating the Seller or for or on behalf of any director of the Company or for or on behalf of any of them or any Connected Person.
4.5 The Seller shall:
(a) assign and/or deliver to the PropertiesCompany any asset whatever (including bank balances, agencies or appointments) in its name or in the name of a company or companies controlled by it which is required to carry on the Business of the Company as it was carried on immediately prior to Completion; and
(b) irrevocably waive any claims against the Company, its agents, or employees which it may have outstanding at Completion but, for the avoidance of doubt, this shall be without prejudice to any claim the Seller may have against the Buyer pursuant to this Agreement or other agreements entered into pursuant to this Agreement.
4.6 At Completion the Buyer shall deliver to the Seller:
(a) the Consideration by way of wire transfer to a bank account nominated by the Seller;
(hb) the delivery to Tax Deed duly executed by the Purchaser of Buyer;
(c) certified copies of or extracts from the board minutes of the meetings of the boards of directors of the Vendor in the agreed form, authorising (in each case) Buyer approving the entry into and execution, delivery and performance of the transaction the subject of this Agreement, approving obligations contained in this Agreement and any other agreements or documents to be executed pursuant to or in connection with it and appointing the relevant signatory to sign this Agreement and such other agreements and documents on their behalf certified by the company secretary of the Vendor together with (in each case) confirmation, in the agreed form, from the company secretary that the authority conferred remains valid at Completioncontemplated hereby;
(id) the passing of effective resolutions of Lease Guarantee, Rent Deposit and Indemnity Agreement duly executed by the Directors resolving to register the transfers of the Shares subject only to stamping of the share transfers;
(j) (at the cost of the Vendor) the convening Buyer and holding of all such meetings, the passing of all such resolutions, the execution and delivery of all such documents and the taking of all other action to the extent reasonably necessary in order to complete the transfer of title to the Shares to the Purchaser free from all Encumbrances and to enable the Purchaser to exercise and receive all rights and benefits attaching to or arising from the Shares;
(k) with effect from Completion, the appointment as directors and secretary of the Company of such person or persons as the Purchaser shall have nominated and the resignation of each of the Directors (except ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ and ▇▇▇▇ ▇▇▇▇▇) and the secretary of the Company by delivery of a letter under seal from each such Director and the secretary resigning from his offices and from any employment he may have with the Company with effect from Completion and acknowledging that he has no claim against the Company either actual or contingent in respect of any cause matter or thing (statutory or otherwise);; and
(le) the resignation of the auditors of the Company (without compensation for loss of office or any other claim save for proper professional fees for services rendered in respect of their duties as auditors prior to the completion of the 1997 Audit) with effect from completion of the 1997 Audit and the delivery of a statement by them that there are no circumstances connected with their ceasing to hold office which they consider should be brought to the attention of the members or creditors of the Company;
(m) revocation of all existing authorities to the bankers of the Company relating to bank accounts and the grant of authority to such persons as the Purchaser may nominate to operate the same;
(n) that all booksrelease, records and files of the Company are in its possession or under its control and where any such are not at the Properties that the Purchaser is given details of their whereabouts and any necessary authority to collect them;
(o) the delivery to the Purchaser of duly completed and executed transfers of all shares in the capital of Firstpoint Services Limited not registered in the name of the Company, the statutory books and common seal (if any) of Firstpoint Services Limited and certificates for all of the issued shares in Firstpoint Services Limited.
4.3 Immediately following fulfilment of all the matters referred to in Clause 4.2 the Purchaser shall:
(a) procure that that part of the Consideration payable in cash on Completion is paid by bankers draft to the Vendor's Solicitors (who are hereby irrevocably authorised to receive that consideration) on behalf of the Vendor;
(b) deliver to the Vendor's Solicitors a counterpart of the Tax Covenant duly executed by the Purchaser;
(c) if requested, and at the Vendor's cost, deliver to the Vendor's Solicitors a legal opinion in a form reasonably satisfactory to the Vendor Seller, of the Nokia Guarantee.
4.7 At Completion, each of the parties thereto shall enter into the Tax Deed.
4.8 Prior to registration of stock transfer forms in respect of the Shares in the register of shareholders of the Company and after Completion, the Seller shall co-operate in any manner reasonably required by the Buyer for the convening, holding at short notice and conduct of general meetings of the Company, shall execute on a timely basis all proxy forms, appointments of representatives, documents of consent to short notice and such like that the Buyer may reasonably require, and shall generally act in all respects as the nominee and at the direction of the Buyer in respect of the Shares sold by them and all rights and interests attaching thereto and shall issue letters of direction to the validity and enforceability registered holders of any of the guarantee contained within Clause 11 Shares who hold such shares as their nominee requiring them to act on the reasonable instructions of the Buyer for the aforesaid purposes, but the Seller shall not be required to incur any expenditure in performing its obligations under this Agreement clause 4.8.
4.9 On and if such opinion is that such guarantee is not valid with effect from Completion, the Seller shall:
(a) and enforceable such amendments shall hereby appoints the Buyer to be made its attorney to exercise all rights attaching to the guarantee Shares or exercisable by the Seller in its capacity as render it valid a member of the Company. The powers exercisable by the Buyer will include the power to execute, deliver and enforceabledo all deeds, instruments and acts in the Seller's name and on the Seller's behalf in pursuance of the foregoing;
(b) not exercise any rights attaching to the Shares or exercisable by the Seller in its capacity as a member of the Company or appoint any other person to exercise such rights, other than at the written request of the Buyer;
(c) receive and hold in trust for the Buyer any dividends, securities or notices, documents or other communications which may be received by the Seller from the Company or any third party in respect of the Shares or in the Seller's capacity as a member of the Company. Without prejudice to the generality of the obligations imposed by the foregoing, the Seller undertakes and agrees to promptly procure the forwarding to the Buyer of all such benefits, notices, documents and communications and to account to the Buyer for all benefits arising from the Shares registered in the Seller's name and/or from the Seller's capacity as a member of the Company; and
(d) as agent for on the written request of the Buyer, ratify all lawful deeds, instruments and acts exercised by the Buyer in pursuance of this power; and
(e) acknowledge that in acting under the power or powers set out in this Power of Attorney the Buyer may act by its secretary or any director or person acting pursuant to authority conferred by the Buyer's board of directors or any director. The power or powers and undertakings set out in this clause 4.9 will cease to have effect when the Seller ceases to be a member of the Company, repay the Inter-Company Debt by bankers draft to the Vendor's Solicitors (who are hereby irrevocably authorised to receive that payment) on behalf of the Vendor and its subsidiaries and Associates. The delivery of a bankers draft to the Vendor's Solicitors shall be a full and sufficient discharge to the Purchaser for the monies payable on Completion and the Purchaser shall not be concerned to see to the application of any payment by the Purchaser under this Clause 4.3.
4.4 If all the provisions of Clause 4.2 are not complied with in full on Completion the Purchaser may:
(a) defer Completion to a date not more than 28 days after the date specified in Clause 4.1 in which event the provisions of this Clause 4.4 shall apply to Completion as so deferred; or
(b) proceed to Completion so far as practicable but without prejudice to its rights under this Agreement or otherwise and so that any provision of Clause 4.2 which may not have been complied with at Completion shall at the sole discretion of the Purchaser be held over to such future date or dates as the Purchaser may in its sole discretion determine; or
(c) terminate this Agreement (save for Clauses 12, 13, 14 and 20, which shall remain in full force and effect) provided that such termination shall not affect the rights and obligations of the parties which have accrued power exercised prior to termination and shall not limit or exclude any other rights or remedies of the Purchaser in respect of any failure by the Vendor to comply with the requirements of Clause 4.2 on the due that date.
4.5 4.10 The Vendor shall use all reasonable endeavours to procure compliance with the provisions Buyer shall, within five Business Days of Clause 4.2 on any date set for Completion in accordance with this Agreement.
4.6 The Vendor undertakes to and covenants with the Purchaser (for itself and as trustee for the Company) that if, after Completion, it is discovered that give to the Company had on or before Completion given or undertaken any guarantees, indemnities or similar securities in respect such notice as is required by section 53 of the obligations or liabilities of any person other than the Company and such guaranteesCompanies Act, indemnities or similar securities were not finally and unconditionally released on or before Completion, the Vendor will fully indemnify the Purchaser and the Company and keep each of them fully indemnified on demand against all claims, demands, actions, proceedings, damages, losses, costs, expenses or liabilities suffered or incurred by the Purchaser or the Company under or in connection with such guarantees, indemnities or similar obligations1990.
Appears in 1 contract
Sources: Agreement for the Sale and Purchase of Shares (Brightpoint Inc)