CONDUCT OF BUSINESS BEFORE COMPLETION. 9.1 From the date of this Agreement until Completion, each Seller shall use all reasonable endeavours to: (a) procure that each Group Company will carry on its business in the ordinary and usual course; (b) procure that each Group Company shall comply with the requirements of Schedule 4; (c) not, and shall procure that each Group Company shall not, do, allow or procure, any act or omission which would render any of the Warranties untrue, inaccurate or misleading if repeated at Completion by reference to the circumstances then subsisting; (d) in addition to complying with the requirements of Schedule 4 (and notwithstanding any conflict with those provisions), procure that: (i) all income received by the Group is used to discharge liabilities of the Group; (ii) no Group Company purchases any asset or takes any action which would increase its liabilities from the date of this Agreement in each case in excess of the aggregate amount of $5,000 in any calendar month without the prior written approval of the Buyer, provided always that this Clause 9.1(d)(ii) shall not apply in relation to the purchase of any asset or increase of any liabilities undertaken or incurred in accordance with the terms of the Tribute Agreement and/or Mining Contract; and (iii) the Group does not incur expenditure in excess of the cash received by the Group from the Odzi Consideration and pursuant to the Tribute Agreement and Mining Contract without the prior written approval of the Buyer; (e) procure that the relevant Group Company shall, subject to the terms of the Tribute Agreement and the Mining Contract, maintain and protect the Group’s claims and licences in respect of the Mine; and (f) procure that the relevant Group Company complies in all material respects with their respective obligations under each Permit and all Applicable Laws. 9.2 Each Seller undertakes to notify the Buyer in writing as soon as reasonably practicable after becoming aware of anything which constitutes or is reasonably likely to constitute a breach of the Sellers’ obligations under Clause 9.1 and to provide the Buyer all material details available to it in relation to such matter. 9.3 Each Seller shall use all reasonable endeavours to procure that, subject to the Buyer complying with its obligations under Clause 9.4, from the date of this Agreement until Completion: (a) the Buyer and its advisers and representatives shall be given reasonable access, upon reasonable notice, to the premises and assets of the Company and to all books, records, accounts and documents controlled or used by the Company (including computer programmes) and shall be permitted to take copies of each of the foregoing; (b) the directors and employees of the Company shall be instructed to give, as soon as reasonably practicable, all such information and explanations to the Buyer as the Buyer reasonably requests; and (c) the Buyer and its technical advisers shall be entitled to have reasonable access to the Mine to perform such drilling, testing and sampling they find reasonably necessary in order to confirm the contents of the Feasibility Study. The parties agree that all samples and other data generated in connection with the Feasibility Study and any technical report connected therewith shall belong to the Group. 9.4 Any activities undertaken by the Buyer in accordance with Clause 9.3 shall be undertaken at the Buyer’s own risk, at its own cost and for its own benefit and the Buyer shall: (a) notwithstanding any other provision of this Agreement, not have any authority to, and must not purport to, bind the Sellers or the Company to any obligations; (b) conduct all its activities in accordance with the terms of the Permits (including, without limitation, those relating to mining practices, safety requirements and the environment) and in a good, safe and workmanlike manner and using good mining practices; (c) carry out all rehabilitation of any land disturbed by it; (d) lodge, or meet the full cost of, any performance bonds that are required to be lodged as a result of its activities or proposed activities; and (e) comply and procure compliance by its agents, advisors and employees with all Applicable Laws, including environmental laws. 9.5 The Buyer indemnifies and shall keep indemnified the Sellers and the Company at all times against all claims and losses which have accrued or which may accrue directly from the Buyer’s activities (and the activities of the Buyer’s agents, employees, officers and contractors) at the Mine and the exercise of its rights under Clause 9.3. Notwithstanding any other provision of this Agreement, this Clause 9.5 survives termination of this Agreement. 9.6 The Sellers shall procure that from the date of this Agreement until Completion such person as the Buyer may from time to time nominate shall be given the same notices and information as if he were a director and shareholder of the Company and that such person shall be invited and entitled to attend as an observer (but not as a director, shadow director, officer or shareholder) at all board, management and shareholder meetings. 9.7 The Sellers shall indemnify and shall keep indemnified the Buyer and the Buyer’s Group at all times following Completion against all claims and losses which accrue directly from any breach of Clause 9.1(d) (to the extent such losses are not compensated for in the Completion Accounts).
Appears in 2 contracts
Samples: Share Purchase Agreement (Caledonia Mining Corp PLC), Agreement for the Sale and Purchase of the Share Capital (Toziyana Trust)
CONDUCT OF BUSINESS BEFORE COMPLETION. 9.1 From 4.1 Subject to Clause 4.2, the date of this Agreement until Completion, each Seller shall use all reasonable endeavours to:
(a) procure that each Group Company will carry on its business in the ordinary and usual course;
(b) procure that each Group Company shall comply with the requirements of Schedule 4;
(c) not, and shall procure that each Group Company shall not, do, allow or procure, any act or omission which would render any of during the Warranties untrue, inaccurate or misleading if repeated at Completion by reference to the circumstances then subsisting;
(d) in addition to complying with the requirements of Schedule 4 (and notwithstanding any conflict with those provisions), procure that:
(i) all income received by the Group is used to discharge liabilities of the Group;
(ii) no Group Company purchases any asset or takes any action which would increase its liabilities period from the date of this Agreement in each case in excess of the aggregate amount of $5,000 in any calendar month without the prior written approval of the Buyer, provided always that this Clause 9.1(d)(ii) shall not apply in relation Signing Date to the purchase of any asset or increase of any liabilities undertaken or incurred in accordance with the terms of the Tribute Agreement and/or Mining Contract; and
(iii) the Group does not incur expenditure in excess of the cash received by the Group from the Odzi Consideration and pursuant to the Tribute Agreement and Mining Contract without the prior written approval of the Buyer;
(e) procure that the relevant Group Company shall, subject to the terms of the Tribute Agreement and the Mining Contract, maintain and protect the Group’s claims and licences in respect of the Mine; and
(f) procure that the relevant Group Company complies in all material respects with their respective obligations under each Permit and all Applicable Laws.
9.2 Each Seller undertakes to notify the Buyer in writing as soon as reasonably practicable after becoming aware of anything which constitutes or is reasonably likely to constitute a breach of the Sellers’ obligations under Clause 9.1 and to provide the Buyer all material details available to it in relation to such matter.
9.3 Each Seller shall use all reasonable endeavours to procure that, subject to the Buyer complying with its obligations under Clause 9.4, from the date of this Agreement until Completion:
(a) the Buyer Group Companies shall continue to carry on business in the normal course in compliance with all Laws applicable to them and its advisers and representatives shall be given reasonable access, upon reasonable notice, to in substantially the premises and assets of same manner as their businesses have been carried on before the Company and to all books, records, accounts and documents controlled or used by the Company (including computer programmes) and shall be permitted to take copies of each of the foregoingSigning Date;
(b) the directors Group Companies shall pay all premiums due on and employees use reasonable endeavours to maintain in effect each insurance policy of the Group Companies in effect as of the Signing Date;
(c) no Group Company shall be instructed to give, as soon as reasonably practicable, all such information and explanations to the Buyer as the Buyer reasonably requestsundertake any Restricted Action; and
(cd) the Buyer and its technical advisers shall be entitled Company uses reasonable endeavours, if requested by Purchaser, to pursue certain tax rulings or decisions (beschikkingen), provided that pursuing such tax rulings or decisions does not have reasonable access to a negative impact on the Mine to perform such drilling, testing and sampling they find reasonably necessary in order to confirm the contents business of the Feasibility Study. The parties agree that all samples and other data generated in connection with the Feasibility Study and any technical report connected therewith shall belong Group Companies prior to the Group.
9.4 Any activities undertaken by the Buyer in accordance with Clause 9.3 shall be undertaken at the Buyer’s own risk, at its own cost and for its own benefit and the Buyer shall:
(a) notwithstanding any other provision of this Agreement, not have any authority to, and must not purport to, bind the Sellers Completion or the Company ability to any obligations;
(b) conduct all its activities proceed with Completion in accordance with the terms of this Agreement.
4.2 Clause 4.1 shall not operate so as to restrict or prevent:
(a) any matter undertaken at the Permits written request of the Purchaser or with its specific prior written approval (includingsuch approval not to be unreasonably withheld);
(b) any commercially reasonable action undertaken by any Group Company in an emergency or disaster situation with the intention of minimising any adverse effect thereof, without limitationbut only for so long as such emergency or disaster situation continues and solely to the extent necessary to mitigate its effects, those relating and provided that Seller shall, to mining practicesthe extent practicable, safety requirements and consult with the environment) Purchaser in advance of any such action and in a good, safe and workmanlike manner and using good mining practicesany event provide prompt written notice to the Purchaser of any action so undertaken;
(c) carry out all rehabilitation the completion or performance of any land disturbed obligation required to be undertaken pursuant to any written Contract entered into by itany Group Company prior to the Signing Date in accordance with the terms of such Contract on the Signing Date and provided that such Contract has been made available in the Data Room to the Purchaser at least five Business Days prior to the Signing Date;
(d) lodgeany act or conduct which any Group Company is required to take, or meet the full cost ofomit to take, any performance bonds that are required to be lodged as a result of its activities of, or proposed activities; andin order to comply with, any law or regulation;
(e) comply the entering into in the ordinary course of business of any contract or commitment (other than any contract of a nature described in Clause 10.1(f), 10.1(g) (provided that the dollar amount in 10.1(g) shall be deemed to be $5,000,000) or 10.1(h) of Part B of Schedule 5) on terms consistent with the Company’s current business plan and procure compliance by its agents, advisors and employees with all Applicable Laws, including environmental laws.
9.5 The Buyer indemnifies and shall keep indemnified the Sellers and the Company at all times against all claims and losses which have accrued or which may accrue directly from the Buyer’s activities strategy (and the activities performance of the Buyer’s agents, employees, officers and contractorssuch contracts or commitments);
(f) at the Mine and the exercise of its rights under Clause 9.3. Notwithstanding any other provision of this Agreement, this Clause 9.5 survives termination of this Agreement.
9.6 The Sellers shall procure that from the date of this Agreement until Completion such person as the Buyer may from time to time nominate shall be given the same notices and information as if he were a director and shareholder of the Company and that such person shall be invited and entitled to attend as an observer (but not as a director, shadow director, officer or shareholder) at all board, management and shareholder meetings.
9.7 The Sellers shall indemnify and shall keep indemnified the Buyer and the Buyer’s Group at all times following Completion against all claims and losses which accrue directly from any breach of Clause 9.1(d) (to the extent specifically described in Section 4.2(f) of the Disclosure Letter, any (i) scheduled increases in salaries or wages with respect to any employee of any member of the Group with a total base pay of no more than $125,000, in an absolute amount not to exceed $100,000, and an individual amount not to exceed 3% of such losses are not compensated employee’s previous salary or wages prior to the increase or (ii) any scheduled increases in salaries or wages with respect to any employee of any member of the Group as required pursuant to collective bargaining agreements;
(g) any matters necessary to be undertaken in order to comply with the requirements of any Governmental Authority; or
(h) any action required by this Agreement or another Transaction Document. The Purchaser will use reasonable endeavours to respond within five Business Days of receipt of a written request from the Seller for in the Completion Accounts)Purchaser approval under Clause 4.2(a) and if no response is received it shall be deemed to be granted.
Appears in 2 contracts
Samples: Agreement for the Sale and Purchase of the Entire Issued Share Capital, Agreement for the Sale and Purchase of Shares (Cabot Corp)
CONDUCT OF BUSINESS BEFORE COMPLETION. 9.1 From 5.1 Subject to clause 5.2, the Seller shall procure that between the date of this Agreement until and Completion:
5.1.1 SCCL and UK OpCo shall, unless it has obtained the prior consent of the Purchaser to do otherwise (such consent not to be unreasonably withheld or delayed), comply with Part I of Schedule 5;
5.1.2 to the extent applicable thereto, (i) no member of the Sale Group knowingly or intentionally acts or omits to act where such act or omission would result in its being in material breach of any BP Agreement and (ii) each Seller shall use all member of the Sale Group uses its reasonable endeavours toto comply with its respective obligations under each of the BP Agreements to which it is a party.
5.2 Clause 5.1 shall not operate so as to restrict or prevent:
(a) procure that each Group Company will carry on its business 5.2.1 the entering into of any contract or commitment in the ordinary course of business and usual course;
(b) procure that each Group Company shall comply consistent with the requirements relevant Sale Group member’s usual practices, which contract or commitment is terminable in accordance with its terms by written notice of Schedule 4;
(c) not, six months or less and shall procure that each Group Company shall not, do, allow or procure, any act or omission which would render any of the Warranties untrue, inaccurate or misleading if repeated at Completion by reference is not material in relation to the circumstances then subsisting;
(d) in addition to complying with the requirements of Schedule 4 (and notwithstanding any conflict with those provisions), procure that:
(i) all income received by the Group is used to discharge liabilities of the Sale Group;
5.2.2 any matter reasonably undertaken by any member of the Sale Group in an emergency or disaster situation with the intention of minimising any adverse effect thereof (ii) no and of which the Purchaser will be promptly notified);
5.2.3 the completion or performance of any obligations undertaken pursuant to any contract or arrangement entered into by any member of the Sale Group Company purchases any asset or takes any action which would increase its liabilities from prior to the date of this Agreement provided such contract or arrangement has been disclosed to the Purchaser in each case in excess the Data Room, or if the Seller is aware that such contract or arrangement is not so disclosed, such contract or arrangement is brought to the attention of the aggregate amount of $5,000 Purchaser and, where practicable, the Seller consults with the Purchaser in any calendar month without the prior written approval respect of the Buyer, provided always that this Clause 9.1(d)(ii) shall not apply in relation obligations to be performed pursuant to such contract or arrangement;
5.2.4 the purchase payment of any asset or increase of any liabilities undertaken or incurred principal, interest and other amounts due and payable by SCCL in accordance with the terms of the Tribute Luxco Loan Agreement, this Agreement and/or Mining Contractor as required or contemplated by any contractual loan or financing arrangement to which SCCL or any of SCCL’s Affiliates is a party, in each case without prejudice to the Warranty set out in paragraph 5.6 of Schedule 2;
5.2.5 any matter required to be undertaken to comply with this Agreement; andor
(iii) 5.2.6 any matter undertaken at the Group does not incur expenditure in excess written request of the cash received by the Group from the Odzi Consideration Purchaser.
5.3 The Seller shall use its reasonable efforts to provide, and pursuant to the Tribute Agreement and Mining Contract without the prior written approval of the Buyer;
(e) shall procure that the relevant Sale Group Company shallmembers provide, subject the Purchaser and the Purchaser’s Auditors with such information concerning each of the Sale Group members as the Purchaser and the Purchaser’s Auditors shall reasonably require and allow the Purchaser and the Purchaser’s Auditors, and shall procure that each Sale Group members allows the Purchaser and the Purchaser’s Auditors, reasonable access during business hours (and upon reasonable notice) to each member of the Sale Group and its books and records, its employees and advisers, except for work product of, or privileged communications with, legal counsel, in each case insofar as is reasonably required for the analysis and verification of the net asset position of each of the Sale Group members; provided that access pursuant to this clause 5.3 and the exercise by the Purchaser of its rights under this clause 5.3 shall not interfere with the Seller’s or any member of the Sale Group’s Business operations or breach the terms of the Tribute Agreement and the Mining Contract, maintain and protect the Group’s claims and licences in respect of the Mine; and
(f) procure that the relevant Group Company complies in all material respects with their respective obligations under each Permit and all Applicable Lawsany confidentiality undertakings binding upon it.
9.2 Each Seller undertakes to notify the Buyer in writing as 5.4 As soon as reasonably practicable after becoming aware of anything the date on which constitutes or is reasonably likely to constitute it gives the NWC Completion Statement, the Seller will deliver a breach copy of the Sellers’ obligations under Clause 9.1 and to provide the Buyer all material details available to it in relation to such matter.
9.3 Each Seller shall use all reasonable endeavours to procure that, subject to the Buyer complying with its obligations under Clause 9.4, from the date of this Agreement until Completion:
Supplemental Letter (a) the Buyer and its advisers and representatives shall be given reasonable access, upon reasonable notice, to the premises and assets of the Company and to all books, records, accounts and documents controlled duly executed by or used by the Company (including computer programmes) and shall be permitted to take copies on behalf of each of the foregoing;
(bSeller Parties) the directors and employees of the Company shall be instructed to give, as soon as reasonably practicable, all such information and explanations to the Buyer as the Buyer reasonably requests; and
(c) the Buyer and its technical advisers shall be entitled to have reasonable access to the Mine to perform such drilling, testing and sampling they find reasonably necessary in order to confirm the contents of the Feasibility Study. The parties agree that all samples and other data generated in connection with the Feasibility Study and any technical report connected therewith shall belong to the GroupPurchaser.
9.4 Any activities undertaken by the Buyer in accordance with Clause 9.3 shall be undertaken at the Buyer’s own risk, at its own cost and for its own benefit and the Buyer shall:
(a) notwithstanding any other provision of this Agreement, not have any authority to, and must not purport to, bind the Sellers or the Company to any obligations;
(b) conduct all its activities in accordance with the terms of the Permits (including, without limitation, those relating to mining practices, safety requirements and the environment) and in a good, safe and workmanlike manner and using good mining practices;
(c) carry out all rehabilitation of any land disturbed by it;
(d) lodge, or meet the full cost of, any performance bonds that are required to be lodged as a result of its activities or proposed activities; and
(e) comply and procure compliance by its agents, advisors and employees with all Applicable Laws, including environmental laws.
9.5 The Buyer indemnifies and shall keep indemnified the Sellers and the Company at all times against all claims and losses which have accrued or which may accrue directly from the Buyer’s activities (and the activities of the Buyer’s agents, employees, officers and contractors) at the Mine and the exercise of its rights under Clause 9.3. Notwithstanding any other provision of this Agreement, this Clause 9.5 survives termination of this Agreement.
9.6 The Sellers shall procure that from the date of this Agreement until Completion such person as the Buyer may from time to time nominate shall be given the same notices and information as if he were a director and shareholder of the Company and that such person shall be invited and entitled to attend as an observer (but not as a director, shadow director, officer or shareholder) at all board, management and shareholder meetings.
9.7 The Sellers shall indemnify and shall keep indemnified the Buyer and the Buyer’s Group at all times following Completion against all claims and losses which accrue directly from any breach of Clause 9.1(d) (to the extent such losses are not compensated for in the Completion Accounts).
Appears in 2 contracts
Samples: Share Sale and Purchase Agreement (International Power PLC), Share Sale and Purchase Agreement (Calpine Corp)
CONDUCT OF BUSINESS BEFORE COMPLETION. 9.1 7.1 The Shareholders shall take all reasonable actions within their power to procure, and the Company shall procure, that the Business is conducted in the ordinary course during the period from the date of this Agreement to Completion. Without limitation to the generality of the foregoing, the Shareholders shall take all commercially reasonable actions within their power to procure, and the Company shall use its best efforts to procure, that between the date of this Agreement and Completion neither the Company nor any Company Subsidiary will undertake any of the Restricted Actions without the prior written consent of the Purchaser.
7.2 Sub-Section 7.1 shall not operate so as to restrict or prevent:
(i) any matter reasonably undertaken by the Company or Company Subsidiary in an emergency or disaster situation with the intention of minimizing any material adverse effect thereof (and of which the Purchaser will be notified in advance, where such advance notice is commercially practicable, failing which the Purchaser shall be notified promptly thereafter) only for so long as such emergency or disaster situation continues and/or solely to the extent the Company reasonably considers necessary to mitigate the effects of such emergency or disaster situation; or
(ii) the completion or performance of any obligations undertaken in the ordinary course of business pursuant to or matters contemplated by any agreement or arrangement entered into by the Company or Company Subsidiary prior to the date of this Agreement which does not in the aggregate exceed $10,000; or
(iii) any matter contemplated in this Agreement; or
(iv) any matter undertaken with the prior written approval of the Purchaser.
7.3 From the date of this Agreement until Completion, each Seller the Shareholders shall use all commercially reasonable endeavours to:
(a) efforts to procure and the Company shall use its best efforts to procure that each Group of the Company will carry on and Company Subsidiaries shall give the Purchaser and its business in authorized representatives reasonable access to books, records, accounts, documents, personnel and offices of the ordinary Company and usual course;Company Subsidiaries.
(b) procure that each Group 7.4 Neither the Shareholders nor the Company shall comply be obliged to grant access pursuant to Section 7.3 to the extent that such access materially interferes with the requirements of Schedule 4;
(c) not, and shall procure that each Group Company shall not, do, allow or procure, any act or omission which would render any ability of the Warranties untrue, inaccurate Company or misleading if repeated at Completion by reference Company Subsidiaries to conduct the circumstances then subsisting;
(d) in addition to complying with the requirements of Schedule 4 (and notwithstanding any conflict with those provisions), procure that:
(i) all income received by the Group is used to discharge liabilities of the Group;
(ii) no Group Company purchases any asset or takes any action which would increase its liabilities from the date of this Agreement in each case in excess of the aggregate amount of $5,000 in any calendar month without the prior written approval of the Buyer, provided always that this Clause 9.1(d)(ii) shall not apply in relation to the purchase of any asset or increase of any liabilities undertaken or incurred in accordance with the terms of the Tribute Agreement and/or Mining Contract; and
(iii) the Group does not incur expenditure in excess of the cash received by the Group from the Odzi Consideration and pursuant to the Tribute Agreement and Mining Contract without the prior written approval of the Buyer;
(e) procure that the relevant Group Company shall, subject to the terms of the Tribute Agreement and the Mining Contract, maintain and protect the Group’s claims and licences in respect of the Mine; and
(f) procure that the relevant Group Company complies in all material respects with their respective obligations under each Permit and all Applicable LawsBusiness.
9.2 Each Seller undertakes to notify the Buyer in writing as soon as reasonably practicable after becoming aware of anything which constitutes or is reasonably likely to constitute a breach of the Sellers’ obligations under Clause 9.1 and to provide the Buyer all material details available to it in relation to such matter.
9.3 Each Seller shall use all reasonable endeavours to procure that, subject to the Buyer complying with its obligations under Clause 9.4, from 7.5 From the date of this Agreement until Completion:
(a) the Buyer and its advisers and representatives shall be given reasonable access, upon reasonable notice, to the premises and assets of the Company and to all books, records, accounts and documents controlled or used by the Company (including computer programmes) and shall be permitted to take copies of each of the foregoing;
(b) the directors and employees of the Company shall be instructed use its best efforts to giveprovide the Purchaser and its authorized representatives with notice of any enquiry or investigation of, as soon as reasonably practicableor any material communication, all such information and explanations material correspondenceor material request received from, a Governmental Entity in relation to the Buyer as the Buyer reasonably requests; and
(c) the Buyer and its technical advisers shall be entitled to have reasonable access to the Mine to perform such drillingBusiness, testing and sampling they find reasonably necessary in order to confirm the contents of the Feasibility Study. The parties agree that all samples and other data generated in connection with the Feasibility Study and any technical report connected therewith shall belong to the Group.
9.4 Any activities undertaken by the Buyer in accordance with Clause 9.3 shall be undertaken at the Buyer’s own risk, at its own cost and for its own benefit and the Buyer shall:
(a) notwithstanding any other provision of this Agreement, not have any authority to, and must not purport to, bind the Sellers or the Company to or any obligations;
Company Subsidiary within twenty-four (b24) conduct all its activities in accordance with the terms hours of the Permits (including, without limitation, those relating to mining practices, safety requirements and the environment) and in a good, safe and workmanlike manner and using good mining practices;
(c) carry out all rehabilitation of any land disturbed by it;
(d) lodgebecoming aware, or meet the full cost of, any performance bonds that are required to at such time it should reasonably be lodged as a result of its activities or proposed activities; and
(e) comply and procure compliance by its agents, advisors and employees with all Applicable Laws, including environmental lawsaware thereof.
9.5 The Buyer indemnifies and shall keep indemnified the Sellers and the Company at all times against all claims and losses which have accrued or which may accrue directly from the Buyer’s activities (and the activities of the Buyer’s agents, employees, officers and contractors) at the Mine and the exercise of its rights under Clause 9.3. Notwithstanding any other provision of this Agreement, this Clause 9.5 survives termination of this Agreement.
9.6 The Sellers shall procure that from the date of this Agreement until Completion such person as the Buyer may from time to time nominate shall be given the same notices and information as if he were a director and shareholder of the Company and that such person shall be invited and entitled to attend as an observer (but not as a director, shadow director, officer or shareholder) at all board, management and shareholder meetings.
9.7 The Sellers shall indemnify and shall keep indemnified the Buyer and the Buyer’s Group at all times following Completion against all claims and losses which accrue directly from any breach of Clause 9.1(d) (to the extent such losses are not compensated for in the Completion Accounts).
Appears in 2 contracts
Samples: Sale and Purchase Agreement (Advanced Accelerator Applications S.A.), Sale and Purchase Agreement (Advanced Accelerator Applications S.A.)
CONDUCT OF BUSINESS BEFORE COMPLETION. 9.1 From 8.1 Subject to any applicable Laws, during the period from the date of this Agreement agreement until Completion, each Seller shall use all reasonable endeavours toexcept:
(a) procure that each Group Company will carry on its business in as otherwise contemplated by or necessary to effect the ordinary and usual coursematters contemplated by the Transaction Agreements;
(b) procure that each Group Company shall comply with for matters identified in the requirements of Schedule 4Disclosure Letter;
(c) not, and shall procure that each Group Company shall not, do, allow as may otherwise be required by applicable Contract obligations or procure, any act or omission which would render any of the Warranties untrue, inaccurate or misleading if repeated at Completion by reference to the circumstances then subsisting;applicable Law; or
(d) as the Purchaser otherwise consents in addition writing in advance (which consent shall not be unreasonably withheld or delayed); the Parent shall use its best endeavours to complying with cause the requirements of Schedule 4 (Company and notwithstanding any conflict with those provisions), procure that:
the AIA Group Members (i) all income received by to conduct their business in the Group is used to discharge liabilities of the Group;
ordinary course, and (ii) no not to take any of the actions listed in Schedule 2 (Conduct of Business Prior to Completion).
8.2 The Seller and the Parent shall use commercially reasonable endeavours to, and shall use commercially reasonable endeavours to procure that the AIA Group Company purchases any asset or takes any action which would increase its liabilities from will, co-operate fully between the date of this Agreement agreement and Completion in each case in excess order to assist the Purchaser, Prudential and their Affiliates to communicate with employees, agents and consultants of the aggregate amount of $5,000 in AIA Group and take actions to inform and retain such persons as employees, agents and consultants, provided that neither the Seller nor the Parent shall be obliged to do anything that would unreasonably interfere with any calendar month without the prior written approval of the Buyerbusinesses or operations of the Parent or any of its Affiliates (including the Company and the Company Subsidiaries); and provided, provided always that this Clause 9.1(d)(ii) shall not apply in relation further, that, anything to the purchase of contrary in this agreement notwithstanding, nothing herein shall obligate or be construed to obligate the Parent or the Seller to make, or to cause to be made, any asset payment to any employee, agent or increase of any liabilities undertaken or incurred in accordance with the terms consultant of the Tribute Agreement and/or Mining Contract; and
(iii) the AIA Group does not incur expenditure or any other third party in excess of the cash received by the Group from the Odzi Consideration and pursuant order to the Tribute Agreement and Mining Contract without the prior written approval of the Buyer;
(e) procure that the relevant Group Company shall, subject to the terms of the Tribute Agreement and the Mining Contract, maintain and protect the Group’s claims and licences in respect of the Mine; and
(f) procure that the relevant Group Company complies in all material respects with their respective obligations under each Permit and all Applicable Laws.
9.2 Each Seller undertakes to notify the Buyer in writing as soon as reasonably practicable after becoming aware of anything which constitutes or is reasonably likely to constitute a breach of the Sellers’ obligations under Clause 9.1 and to provide the Buyer all material details available to it in relation to such matter.
9.3 Each Seller shall use all reasonable endeavours to procure that, subject to the Buyer complying comply with its obligations under Clause 9.4, from this clause 8.2.
8.3 Prudential and the date of this Agreement until Completion:
(a) Parent shall take the Buyer and its advisers and representatives shall be given reasonable access, upon reasonable notice, to the premises and assets actions set forth in clause 8.3 of the Company and to all books, records, accounts and documents controlled or used by the Company (including computer programmes) and shall be permitted to take copies of each of the foregoing;
(b) the directors and employees of the Company shall be instructed to give, as soon as reasonably practicable, all such information and explanations to the Buyer as the Buyer reasonably requests; and
(c) the Buyer and its technical advisers shall be entitled to have reasonable access to the Mine to perform such drilling, testing and sampling they find reasonably necessary in order to confirm the contents of the Feasibility Study. The parties agree that all samples and other data generated in connection with the Feasibility Study and any technical report connected therewith shall belong to the GroupDisclosure Letter.
9.4 Any activities undertaken by the Buyer in accordance with Clause 9.3 shall be undertaken at the Buyer’s own risk, at its own cost and for its own benefit and the Buyer shall:
(a) notwithstanding any other provision of this Agreement, not have any authority to, and must not purport to, bind the Sellers or the Company to any obligations;
(b) conduct all its activities in accordance with the terms of the Permits (including, without limitation, those relating to mining practices, safety requirements and the environment) and in a good, safe and workmanlike manner and using good mining practices;
(c) carry out all rehabilitation of any land disturbed by it;
(d) lodge, or meet the full cost of, any performance bonds that are required to be lodged as a result of its activities or proposed activities; and
(e) comply and procure compliance by its agents, advisors and employees with all Applicable Laws, including environmental laws.
9.5 The Buyer indemnifies and shall keep indemnified the Sellers and the Company at all times against all claims and losses which have accrued or which may accrue directly from the Buyer’s activities (and the activities of the Buyer’s agents, employees, officers and contractors) at the Mine and the exercise of its rights under Clause 9.3. Notwithstanding any other provision of this Agreement, this Clause 9.5 survives termination of this Agreement.
9.6 The Sellers shall procure that from the date of this Agreement until Completion such person as the Buyer may from time to time nominate shall be given the same notices and information as if he were a director and shareholder of the Company and that such person shall be invited and entitled to attend as an observer (but not as a director, shadow director, officer or shareholder) at all board, management and shareholder meetings.
9.7 The Sellers shall indemnify and shall keep indemnified the Buyer and the Buyer’s Group at all times following Completion against all claims and losses which accrue directly from any breach of Clause 9.1(d) (to the extent such losses are not compensated for in the Completion Accounts).
Appears in 2 contracts
Samples: Share Purchase Agreement, Share Purchase Agreement (American International Group Inc)
CONDUCT OF BUSINESS BEFORE COMPLETION. 9.1 From 5.1 Between the date of this Agreement until Completionagreement and Completion or this agreement being terminated in accordance with clause 3.4 or clause 3.5, each the Seller shall use all reasonable endeavours toshall:
(aA) procure that no Group Member shall undertake any act or course of conduct which is outside the ordinary course of business of such Group Member in any material respect except (i) with the prior written consent of the Purchaser (such consent not to be unreasonably withheld or delayed), (ii) if and to the extent required by law or regulation (and in respect of which the Purchaser shall be notified and reasonably consulted as far in advance as is practicable in the circumstances), or (iii) if and to the extent expressly permitted by this agreement or any of the Transaction Documents;
(B) procure that no Group Member or any Insurance Company or any Company (as applicable) shall undertake any of the acts or matters listed in Schedule 3 except (i) with the prior written consent of the Purchaser (such consent not to be unreasonably withheld or delayed), (ii) if and to the extent required by law or regulation (and in respect of which the Purchaser shall be notified and reasonably consulted as far in advance as is practicable in the circumstances), or (iii) if and to the extent expressly permitted by this agreement or any of the Transaction Documents;
(C) procure that the Group Members shall, so far as reasonably practicable and subject to obtaining the consent of any relevant Regulatory Authorities where required, consult with the Purchaser in advance of any material communications with any relevant Regulatory Authorities and take into account the reasonable comments of the Purchaser in relation thereto;
(D) without prejudice to paragraph (C), procure that the Group Members shall inform the Purchaser (subject to obtaining the consent of any relevant Regulatory Authorities where required) of the details of any material communications with any relevant Regulatory Authorities and provide a written copy of all written communications in relation thereto;
(E) not itself, and shall procure that no Group Member or Retained Group Member shall, take any action or omit to take any action which action or omission causes or increases the likelihood of an assessment on the Actual Case I Basis (other than such action or omission in the ordinary course of trade or, as the case may be, business of an Insurance Company and the repayment of the Cater Txxxxxx Loan on or prior to Completion), and such an action or omission shall include but not be limited to the failure to seek to resist a relevant notice from a Tax Authority to the extent practicable;
(F) notify the Purchaser of any matter, circumstance, act or omission which is or may be a breach of this clause 5 or Schedule 3 as soon as reasonably practicable after the Seller becomes aware of any such matter, circumstance, act or omission;
(G) procure that no Group Member shall take any action or actions or omit to take any action or actions which might constitute a major change in the nature or conduct of the trade of any Group Member or which might cause the activities of the trade of a Group Member to become small or negligible, in each case within the meaning of section 768 ICTA 1988 or section 401 TCA 1997; and
(H) procure that each Group Company will carry on its business Member (i) shall reasonably pursue and comply with the IAM Control Programme, and (ii) shall not act in the ordinary and usual course;
(b) procure that each Group Company shall comply a way which materially contravenes or which is materially inconsistent with the requirements of Schedule 4the IAM Control Programme.
5.2 Clause 5.1 shall not operate so as to restrict or prevent:
(A) any matter reasonably undertaken by any Group Member in an emergency or disaster situation with the intention of minimising any adverse effect thereof (and of which the Purchaser will be promptly notified);
(cB) not, and shall procure that each the completion or performance of any obligations required to be undertaken pursuant to any agreement entered into by any Group Company shall not, do, allow or procure, any act or omission which would render any of the Warranties untrue, inaccurate or misleading if repeated at Completion by reference Member prior to the circumstances then subsisting;
(d) in addition to complying with the requirements of Schedule 4 (and notwithstanding any conflict with those provisions), procure that:
(i) all income received by the Group is used to discharge liabilities of the Group;
(ii) no Group Company purchases any asset or takes any action which would increase its liabilities from the date of this Agreement agreement (and, in each case in excess respect of any such obligations which would prevent or have prevented compliance with clause 5.1, the Purchaser will be promptly notified where reasonably practicable);
(C) any matter undertaken by any Group Member pursuant to any requirement of the aggregate amount of $5,000 in any calendar month without the prior written approval of the Buyer, provided always that this Clause 9.1(d)(ii) shall not apply in relation to the purchase of any asset or increase of any liabilities undertaken or incurred SPI Fund Supervisory Committee in accordance with the terms of the Tribute Agreement and/or Mining ContractSPL Demutualisation Scheme as at the date of this agreement (and in respect of which the Purchaser shall be consulted as far in advance as is practicable in the circumstances);
(D) any action necessary (in the reasonable belief of the Seller or the relevant Group Member acting in good faith) in order to comply with any requirement of applicable law or regulation (including any rules or requirements of any Regulatory Authority) or in order to ensure the compliance of the Insurance Company with any laws relating to prudential matters, or any regulations or rules of a Regulatory Authority (including PRU) (and in respect of any such material matter the Purchaser shall be consulted as far in advance as is practicable in the circumstances);
(E) any matter contemplated in this agreement or the other Transaction Documents or reasonably necessary to give effect to any of them, including in relation to the Pre-Sale Transfers and any activities of Group Members which may be necessary for the purposes of or in connection with progressing or achieving the Deliverables (and in respect of any such material matter the Purchaser shall be consulted as far in advance as is practicable in the circumstances);
(F) any matter undertaken at the written request of the Purchaser; andor
(G) any payments or contributions made by any Group Member into any of the Seller’s Schemes or the Irish Schemes and any other arrangements implemented in respect of any Group Member arising:
(i) in connection with the substitution of a member of the Retained Group as the Principal Employer for any of the Seller’s Schemes; or
(ii) in relation to settlement or otherwise of any debt arising from the cessation of participation of a Group Member in any of the Seller’s Schemes, including without limitation the cessation of participation by ANFIS, whether arising under section 75 of the Pensions Axx 0000 or otherwise; or
(iii) in connection with the Group does not incur expenditure in excess winding up of the cash received Irish Schemes.
5.3 Subject to applicable legal and regulatory requirements, before Completion and upon reasonable notice being given by the Group from Purchaser, the Odzi Consideration Seller shall, and pursuant to the Tribute Agreement and Mining Contract without the prior written approval of the Buyer;
(e) shall procure that the relevant Group Company Members shall, consult with the Purchaser on a reasonably regular basis (and the Seller shall procure that representatives of the Group Members shall make themselves reasonably available to the Purchaser and its representatives at least once a week) during Working Hours with respect to material matters concerning the conduct and operation of the business of the Group Members and shall (subject to any obligations they may have under existing agreements, and subject to clause 33) allow the terms of Purchaser and its representatives reasonable access during Working Hours to the Tribute Agreement and the Mining ContractBusiness Properties, maintain and protect the Group’s claims directors and licences in respect senior executives and the Group’s Books and Records and such other reasonable information as shall allow them to make a reasonably detailed assessment of the Mine; and
(f) procure that the relevant Group Company complies in all material respects with their respective obligations under each Permit conduct and all Applicable Laws.
9.2 Each Seller undertakes to notify the Buyer in writing as soon as reasonably practicable after becoming aware of anything which constitutes or is reasonably likely to constitute a breach operation of the Sellers’ obligations under Clause 9.1 business of the Group Members. The Seller and the Purchaser shall establish a liaison committee which shall be responsible for monitoring compliance with this clause 5 (the “Liaison Committee”). The membership of the Liaison Committee shall be agreed between the Seller and the Purchaser from time to provide time. The Liaison Committee shall meet on a weekly basis during the Buyer all material details available to it in relation to such matter.
9.3 Each Seller shall use all reasonable endeavours to procure that, subject to the Buyer complying with its obligations under Clause 9.4, from period between the date of this Agreement until Completion:
(a) agreement and the Buyer and its advisers and representatives Completion Date. The Seller shall be deemed to have complied with any requirements under this clause 5 to consult with or notify the Purchaser in respect of any matter if the Seller consults with or notifies any of the Purchaser’s representatives on the Liaison Committee. If a matter requiring the prior written consent of the Purchaser under this clause 5 is discussed with and agreed to in writing by any of the Purchaser’s representatives on the Liaison Committee then the Purchaser shall be deemed to have given reasonable accessits prior written consent to such matter for the purposes of this clause 5.
5.4 Subject as otherwise expressly provided in the ANFIS Separation Agreement, upon reasonable noticethe Seller undertakes to hold and keep the Purchaser for itself and as trustee for each Group Member indemnified on an after-Tax basis from and against all actions, claims, proceedings, loss, damage, and all payments, costs and expenses (excluding such matters in respect of Tax, but without prejudice to the premises and assets of the Company and to all books, records, accounts and documents controlled or used Tax Covenant) incurred by the Company (including computer programmes) and shall be permitted to take copies of each of the foregoing;
(b) the directors and employees of the Company shall be instructed to give, as soon as reasonably practicable, all Purchaser or such information and explanations to the Buyer as the Buyer reasonably requests; and
(c) the Buyer and its technical advisers shall be entitled to have reasonable access to the Mine to perform such drilling, testing and sampling they find reasonably necessary in order to confirm the contents of the Feasibility Study. The parties agree that all samples and other data generated in connection with the Feasibility Study and any technical report connected therewith shall belong to the Group.
9.4 Any activities undertaken by the Buyer in accordance with Clause 9.3 shall be undertaken at the Buyer’s own risk, at its own cost and for its own benefit and the Buyer shall:
(a) notwithstanding any other provision of this Agreement, not have any authority to, and must not purport to, bind the Sellers or the Company to any obligations;
(b) conduct all its activities in accordance with the terms of the Permits (including, without limitation, those relating to mining practices, safety requirements and the environment) and in a good, safe and workmanlike manner and using good mining practices;
(c) carry out all rehabilitation of any land disturbed by it;
(d) lodge, or meet the full cost of, any performance bonds that are required to be lodged Group Members as a result of its activities or proposed activities; and
(e) comply and procure compliance by its agents, advisors and employees with all Applicable Laws, including environmental lawsthe Pre-Sale Transfers.
9.5 The Buyer indemnifies and shall keep indemnified the Sellers and the Company at all times against all claims and losses which have accrued or which may accrue directly from the Buyer’s activities (and the activities of the Buyer’s agents, employees, officers and contractors) at the Mine and the exercise of its rights under Clause 9.3. Notwithstanding any other provision of this Agreement, this Clause 9.5 survives termination of this Agreement.
9.6 The Sellers shall procure that from the date of this Agreement until Completion such person as the Buyer may from time to time nominate shall be given the same notices and information as if he were a director and shareholder of the Company and that such person shall be invited and entitled to attend as an observer (but not as a director, shadow director, officer or shareholder) at all board, management and shareholder meetings.
9.7 The Sellers shall indemnify and shall keep indemnified the Buyer and the Buyer’s Group at all times following Completion against all claims and losses which accrue directly from any breach of Clause 9.1(d) (to the extent such losses are not compensated for in the Completion Accounts).
Appears in 1 contract
CONDUCT OF BUSINESS BEFORE COMPLETION. 9.1 From 5.1 Subject to Clause 5.2, between the date of this Agreement until and Completion the Unilever Parents shall exercise all rights available to them to procure that the business of the Sanex Perimeter will be carried on in the ordinary course of business consistent with past practice. Subject to Clause 5.2, between the date of this Agreement and Completion, each Seller the Unilever Parents shall use exercise all reasonable endeavours torights available to them to ensure that the acts or matters specified in Clause 5.3 do not occur in relation to the business of the Sanex Perimeter without the prior consent of the Purchaser (such consent not to be unreasonably withheld or delayed).
5.2 Clause 5.1 shall not operate so as to restrict or prevent:
(aA) procure that each any action reasonably undertaken in response to events beyond the control of any member of the Unilever Group Company will carry and any Company, and which would be reasonably expected to have an adverse effect on its business the Sanex Perimeter, with the intention of minimising any such adverse effect of such events where it is not reasonably practicable in the ordinary circumstances for the Unilever Parents to have obtained the consent of the Purchaser before undertaking such matter PROVIDED THAT the Unilever Parents shall promptly inform the Purchaser of the relevant action and usual coursecircumstances;
(bB) procure that each Group Company shall comply with the requirements of Schedule 4[RESERVED];
(cC) not, and shall procure that each any matter undertaken at the request of the Purchaser;
(D) any matter contemplated by this Agreement or any action taken by any member of the Unilever Group or any Company shall not, do, allow pursuant to this Agreement;
(E) any action or procure, omission which any member of the Unilever Group or any Company is required to take or omit to take by any applicable law or regulation or any Tax Authority;
(F) any act or omission which would render any member of the Unilever Group or any Company believes (acting reasonably) that it is required to take in order to comply with the Commitments;
(G) any disposal of stocks or any payment of cash, in each case in the ordinary course and consistent with past practice in the running of the business of the Sanex Perimeter;
(H) the payment of one or more cash dividends by any Company;
(I) any matter reasonably necessary or desirable for the purposes of separating the contracts which relate to both the Business and the Retained Business or ensuring a smooth migration of services from any transitional services arrangements provided by Xxxx Xxx;
(J) any matter reasonably required to be undertaken or otherwise consented to by the Purchaser in connection with the completion of the Pre-Sale Reorganisation to the extent in accordance with Schedule 14; and
(K) entering into, terminating, extending or amending any of the Warranties untrue, inaccurate or misleading if repeated at Completion by reference following contracts (provided that such actions are not detrimental to the circumstances then subsisting;
(d) in addition to complying with the requirements of Schedule 4 (and notwithstanding any conflict with those provisions), procure that:Purchaser):
(i) all income received the agreement between Xxxx-Verde Legrain S.A. and Covenca S.A. governing the distribution of products by Covenca S.A. into the Group is used to discharge liabilities Canary Islands (as disclosed at 7.4.2 of the GroupData Room and in the Disclosure Letter);
(ii) no Group Company purchases any asset or takes any action which would increase its liabilities from the date agreement between Unilever Espana S.A. and Vileda Iberica S.A. governing the distribution of this Agreement in each case in excess products into Portugal (as disclosed at 7.4.5 of the aggregate amount of $5,000 Data Room and in any calendar month without the prior written approval of the Buyer, provided always that this Clause 9.1(d)(ii) shall not apply in relation to the purchase of any asset or increase of any liabilities undertaken or incurred in accordance with the terms of the Tribute Agreement and/or Mining Contract; andDisclosure Letter);
(iii) the Group does not incur expenditure SA Manufacturing Agreement referred to in excess of the cash received by the Group from the Odzi Consideration and pursuant to the Tribute Agreement and Mining Contract without the prior written approval of the BuyerClause 31.1;
(eiv) procure that any agreement for the relevant Group Company shall, subject to manufacture and supply of shower gel units under the terms of the Tribute Agreement and the Mining Contract, maintain and protect the Group’s claims and licences Sanex xxxx in respect of the Mineperiod after the Unilever Group has ceased to manufacture such units at its production facility in Santiga; and
(fv) procure that any agreement under which the relevant Group French Company complies in all material respects with their respective obligations under each Permit and all Applicable Lawsoffers transitional sales services to S. C. Xxxxxxx & Son as part of the acquisition by S. C. Xxxxxxx & Son of the insecticides business from the French Company; and
(L) the changing of the corporate name of the French Company to a name which does not include the words “XXXX XXX”.
9.2 Each Seller undertakes 5.3 The acts and matters referred to notify the Buyer in writing Clause 5.1 are as soon as reasonably practicable after becoming aware follows:
(A) a disposal of anything which constitutes or is reasonably likely to constitute a breach any of the Sellers’ obligations under assets of any Company or the Business where in any such case such disposal is of assets of an individual value in excess of €50,000 or an aggregate value in excess of €100,000;
(B) any declaration, authorisation, making or payment of a dividend in specie or dividend in kind or other distribution (except for cash dividends described in Clause 9.1 and to provide 5.2(H)) by any of the Buyer all material details available to it Companies;
(C) (in relation to such matter.
9.3 Each Seller shall use all reasonable endeavours any Company) any creation, allotment or issue of or any grant of any option over or other right to procure thatsubscribe or purchase, subject to the Buyer complying with its obligations under Clause 9.4or any redemption or purchase of, from the date any share or loan capital or securities of this Agreement until Completion:
(a) the Buyer and its advisers and representatives shall be given reasonable access, upon reasonable notice, to the premises and assets of the any Company and to all books, records, accounts and documents controlled or used by the Company (including computer programmes) and shall be permitted to take copies of each securities convertible into any of the foregoing;
(bD) any creation or grant of any option, right to acquire, mortgage, charge, pledge, lien, debenture or other encumbrance (other than a Permitted Encumbrance) on or over any of the Business Assets or any of the assets of any Company or any Shares;
(E) the directors and employees making of any loan by any Company (other than the granting of trade credit in the ordinary course of business consistent with past practice or other loans in the ordinary course of business consistent with past practice) to any person (other than to another Company);
(F) the acquisition, whether by merger, consolidation, formation or otherwise, of any body corporate or business or the entering into of any partnership or joint venture arrangement which involves investment and/or the incurring of expenditure by the Business or any Company in excess of €100,000 in aggregate;
(G) the entry into of any capital commitment or capital commitments having a value or involving expenditure in excess of €100,000 in aggregate;
(H) terminating (except for good cause) or transferring the employment of any Key Personnel;
(I) the grant of any licence or sublicense or the assignment, transfer, pledge, lease or disposition of any right (in whole or in part) under or in respect of:
(i) any Business IPR; or
(ii) any Intellectual Property owned by any Company;
(J) a change in the accounting methods or practices with respect to the Sanex Perimeter, except insofar as may be required by a change from GAAP to IFRS or applicable law or which results from migration to Unilever Group accounting systems;
(K) any modification, waiver, termination, failure to renew, failure to extend or amendment in any material respect of any Assumed Business Contract which is material (as materiality is defined in paragraph 5 of Schedule 2 provided, that, for purposes of this Clause the reference to €500,000 shall be a reference to €200,000);
(L) entering into any material transaction with any member of the Company shall be instructed to give, as soon as reasonably practicable, all such information and explanations Unilever Group or any other affiliate of the Business Sellers relating to the Buyer as the Buyer reasonably requests; andBusiness;
(cM) (i) employing or agreeing to employ any new persons on a permanent basis fully or part time, other than as necessary to replace an Employee whose employment terminates (but not with respect to any Company Employee terminated pursuant to Clause 20.1(B)) and on terms reasonably consistent with the Buyer and its technical advisers shall be entitled to have reasonable access terms applicable to the Mine to perform such drilling, testing and sampling they find reasonably necessary terminated Employee or as required in order to confirm comply with the contents Commitments, (ii) making changes or any commitment to make changes to terms of employment (including pension fund commitments or any increase to remuneration) or to any employee benefit plan, other than (I) those required by law or in order to comply with the Commitments, or (II) pursuant to normal annual pay reviews in the ordinary course of business consistent with past practice and subject to an aggregate increase of not more than 3% in total staff costs of the Feasibility Study. The parties agree that all samples and Business per annum, or (iii) entering into (where there is no existing agreement) or materially amending any collective bargaining agreement or other data generated contract with a labour organisation, works council or employee organisation in connection with the Feasibility Study and any technical report connected therewith shall belong each case in relation to the Group.
9.4 Any activities undertaken by Business or any Company; (N) entering into or accepting any material Purchase Orders or otherwise selling or shipping or committing to sell or ship any material amounts of Products other than in the Buyer in accordance ordinary course of business consistent with Clause 9.3 shall be undertaken at the Buyer’s own risk, at its own cost and for its own benefit and the Buyer shall:
(a) notwithstanding any other provision of this Agreement, not have any authority to, and must not purport to, bind the Sellers or the Company to any obligationspast practice;
(bO) conduct all its activities in accordance with the terms entry into of any agreement to do any of the Permits (including, without limitation, those relating to mining practices, safety requirements acts and the environment) and matters specified in a good, safe and workmanlike manner and using good mining practices;this Clause 5.3; or
(ci) carry out all rehabilitation the making, changing or revoking of any land disturbed by it;
(d) lodgeTax election, or meet filing of any Tax Return (including any amended Tax Return); (ii) the full cost ofsettling or compromising of any Tax liability or any Tax claim, audit, dispute or other proceeding; (iii) entry into any closing agreement or other agreement with any Tax Authority; (iv) execution of or the giving of consent to any waivers extending the statutory period of limitations with respect to the collection or assessment of Taxes; (v) procurement of any ruling from a Tax Authority; (vi) a change to any method of accounting or entry into any instalment sale by a Company or any transaction between a Company and another member of the Unilever Group (including for this purpose, any performance bonds other Company pre-Completion), that are will result in any Company being required to be lodged include any item of income or gain in, or exclude any item of deduction or loss from, taxable income for any Post-Completion Tax Period or the portion of any Straddle Period beginning after the Completion Date or (vii) the entry into any tax sharing or tax indemnification agreement (other than, in relation to the Danish Company, as a result of its activities required by the Danish Company Taxation Act ("Selskabsskatteloven")), PROVIDED THAT nothing in this Clause 5.3(P) or proposed activities; and
(e) comply and procure compliance by its agentsClause 5.1 shall prevent the Unilever Parents, advisors and employees with all Applicable Laws, including environmental laws.
9.5 The Buyer indemnifies and shall keep indemnified the Sellers and the Company at all times against all claims and losses which have accrued Target Companies or which may accrue directly from the Buyer’s activities (and the activities any member of the Buyer’s agentsUnilever Group taking any action that (X) is in the ordinary course of business consistent with past practice or (Y) it is required to take to comply with its obligations or, employeeswhere such enforcement would not have a more than immaterial adverse effect on the Purchaser, officers and contractors) at the Mine and the exercise of enforce its rights under Clause 9.3. Notwithstanding any other provision of this Agreement, this Clause 9.5 survives termination of this Agreement.
9.6 The Sellers shall procure that from the date of this Agreement until Completion such person as the Buyer may from time to time nominate shall be given the same notices and information as if he were a director and shareholder tax related provisions of the Company and that such person shall be invited and entitled to attend as an observer (but not as a director, shadow director, officer or shareholder) at all board, management and shareholder meetingsXxxx Xxx SPA.
9.7 The Sellers shall indemnify and shall keep indemnified the Buyer and the Buyer’s Group at all times following Completion against all claims and losses which accrue directly from any breach of Clause 9.1(d) (to the extent such losses are not compensated for in the Completion Accounts).
Appears in 1 contract
Samples: Business and Share Sale and Purchase Agreement (Colgate Palmolive Co)
CONDUCT OF BUSINESS BEFORE COMPLETION. 9.1 From 5.1 Pending Completion the Seller shall procure that each of the Target Companies continues to carry on business in the normal course in compliance with all laws and regulations applicable to it, and in substantially the same manner as its businesses have been carried on before the date of this Agreement until CompletionAgreement, so as to maintain each such business as a going concern and with a view to profit.
5.2 Subject to Applicable Law, pending Completion the Seller shall use all reasonable endeavours to:
(a) procure that each Group Company will carry on its business in the ordinary and usual course;
(b) procure that each Group Company shall comply with the requirements of Schedule 4;
(c) not, and shall procure that each Group Company the Buyer and any person authorised by it:
5.2.1 is given full access to all the books and records, documents, information, data and financial affairs, including the statutory books, minute books, contracts, customer lists, supplier lists and leases of the Target Companies; and
5.2.2 may visit and inspect any premises of the Target Companies and discuss the affairs, finances and accounts of the Target Companies with its officers and employees.
5.3 The Seller undertakes that, without the prior written consent of the Buyer, it shall not, do, allow or procure, any act or omission which would render any of the Warranties untrue, inaccurate or misleading if repeated at Completion by reference to the circumstances then subsisting;
(d) in addition to complying with the requirements of Schedule 4 (and notwithstanding any conflict with those provisions), procure that:
(i) all income received by 5.3.1 during the Group is used to discharge liabilities of the Group;
(ii) no Group Company purchases any asset or takes any action which would increase its liabilities period from the date of this Agreement and ending on the Completion Date, exercise any of its voting rights attached to the Sale Shares to approve, and shall vote against, any action to cause any Target Company to (to the extent it is able to approve such action in each case in excess its capacity as the shareholder of the aggregate amount Sale Shares and subject to all Applicable Laws); or
5.3.2 do any of $5,000 the following (provided such matters are proposed for determination at a duly convened meeting of the shareholders of the Target Companies):
(A) engage in any calendar month without the prior written approval conduct that may amount to breach of any of the Buyer, provided always that this Clause 9.1(d)(ii) shall not apply in relation Material Contracts or may give rise to any ground for the purchase of counterparty to terminate any asset or increase of any liabilities undertaken or incurred in accordance with the terms of the Tribute Agreement and/or Mining Material Contract; and
(iii) the Group does not incur expenditure in excess of the cash received by the Group from the Odzi Consideration and pursuant to the Tribute Agreement and Mining Contract without the prior written approval of the Buyer;
(eB) procure that the relevant Group Company shallcreate, subject allot or issue any Shares, warrants or other equity securities or agree, arrange or undertake to the terms do any of the Tribute Agreement and the Mining Contractthose things;
(C) give or agree to give any option, maintain and protect the Group’s claims and licences right to acquire or call (whether by conversion, subscription or otherwise) in respect of the Mine; andany of its share or loan capital;
(fD) procure that acquire or agree to acquire an interest in a corporate body or merge or consolidate with a corporate body or any other person, enter into any demerger transaction or participate in any other type of corporate reconstruction;
(E) acquire or dispose of, or agree to acquire or dispose of, any material assets, businesses or undertakings or any material revenues or assume or incur, or agree to assume or incur, any material liability, obligation or expense (actual or contingent);
(F) pass any resolution by its members in general meeting or make any alteration to its articles of association or constitutional documents;
(G) declare, make or pay any dividend or other distribution;
(H) enter into any contract, liability or commitment which is incapable of being terminated within 3 months or has a term longer than 6 months or could involve expenditure or liability which exceeds US$100,000;
(I) create, grant or allow to subsist any Encumbrance or other agreement or arrangement which has the relevant Group Company complies same or similar effect to the granting of security in respect of all material respects with their respective obligations under each Permit and all Applicable Laws.
9.2 Each Seller undertakes to notify the Buyer in writing as soon as reasonably practicable after becoming aware of anything which constitutes or is reasonably likely to constitute a breach any part of the Sellers’ obligations under Clause 9.1 and to provide the Buyer all material details available to it in relation to such matter.
9.3 Each Seller shall use all reasonable endeavours to procure thatundertaking, subject to the Buyer complying with its obligations under Clause 9.4, from the date of this Agreement until Completion:
(a) the Buyer and its advisers and representatives shall be given reasonable access, upon reasonable notice, to the premises and property or assets of the Company and to all books, records, accounts and documents controlled or used by the Company (including computer programmes) and shall be permitted to take copies of each of the foregoingTarget Companies;
(bJ) repay (other than in the directors and employees ordinary course of business), acquire, redeem or create any borrowings or other indebtedness or obligation in the Company shall be instructed to give, as soon as reasonably practicable, all such information and explanations to the Buyer as the Buyer reasonably requests; and
nature of borrowings (c) the Buyer and its technical advisers shall be entitled to have reasonable access to the Mine to perform such drilling, testing and sampling they find reasonably necessary in order to confirm the contents of the Feasibility Study. The parties agree that all samples and other data generated in connection with the Feasibility Study and any technical report connected therewith shall belong to the Group.
9.4 Any activities undertaken by the Buyer in accordance with Clause 9.3 shall be undertaken at the Buyer’s own risk, at its own cost and for its own benefit and the Buyer shall:
(a) notwithstanding any other provision of this Agreement, not have any authority to, and must not purport to, bind the Sellers or the Company including obligations pursuant to any obligationsdebenture, bond, note, loan stock or other security and obligations pursuant to finance leases);
(bK) conduct all its activities make any advance, loan or deposit of money other than in accordance with the terms ordinary course of the Permits (includingbusiness or cancel, without limitation, those relating release or assign any indebtedness owed to mining practices, safety requirements and the environment) and in a good, safe and workmanlike manner and using good mining practices;
(c) carry out all rehabilitation of any land disturbed by it;
(dL) lodgechange its policies in respect of debtors or payment of creditors;
(M) make, or meet the full cost ofagree to make, any performance bonds that are required to be lodged as a result of its activities capital commitments or proposed activities; andexpenditure;
(eN) comply and procure compliance lease, licence or part with or share possession or occupation of;
(O) initiate, settle or abandon any claim, litigation, arbitration or other proceedings or make any admission of liability by its agents, advisors and employees with all Applicable Laws, including environmental laws.
9.5 The Buyer indemnifies and shall keep indemnified the Sellers and the Company at all times against all claims and losses which have accrued or which may accrue directly from the Buyer’s activities (and the activities on behalf of the Buyer’s agentsTarget Companies;
(P) enter into any transaction with any person otherwise than at arms' length and for full value;
(Q) make any proposal for any scheme or plan of arrangement, employeesreconstruction, officers and contractors) at amalgamation or demerger or the Mine and the exercise of its rights under Clause 9.3. Notwithstanding any other provision of this Agreement, this Clause 9.5 survives termination of this Agreement.
9.6 The Sellers shall procure that from the date of this Agreement until Completion such person as the Buyer may from time to time nominate shall be given the same notices and information as if he were a director and shareholder winding up or liquidation of the Company and Target Company;
(R) redeem or purchase any shares or reduce its issued share capital, or any uncalled or unpaid liability in respect thereof, or any capital redemption reserve, share premium account or other reserve that such person shall be invited and entitled is not freely distributable; or
(S) agree, undertake or otherwise give any binding undertaking to attend as an observer (but not as a director, shadow director, officer or shareholder) at all board, management and shareholder meetingsdo any of the same.
9.7 The Sellers shall indemnify and shall keep indemnified the Buyer and the Buyer’s Group at all times following Completion against all claims and losses which accrue directly from any breach of Clause 9.1(d) (to the extent such losses are not compensated for in the Completion Accounts).
Appears in 1 contract
Samples: Sale and Purchase Agreement
CONDUCT OF BUSINESS BEFORE COMPLETION. 9.1 From (a) Subject to sub-clause (b), between the date of this Agreement until Completion, each Seller and Completion the Vendor shall use all reasonable endeavours to:
(a) procure that each Group the Company will carry on its business shall not undertake any act or course of conduct (including in relation to operating the Acquired Business) which is outside the ordinary and usual course;course of business. Subject to sub-clause (b), in particular (but without prejudice to the generality of the foregoing) the Vendor shall procure that the acts or matters specified in sub-clause (c) do not occur in relation to the Company without the prior written consent of the Purchaser (such consent not to be unreasonably withheld or delayed).
(b) procure that each Group Company Sub-clause 8(a) shall comply with the requirements of Schedule 4;
(c) not, and shall procure that each Group Company shall not, do, allow not operate so as to restrict or procure, any act or omission which would render any of the Warranties untrue, inaccurate or misleading if repeated at Completion by reference to the circumstances then subsisting;
(d) in addition to complying with the requirements of Schedule 4 (and notwithstanding any conflict with those provisions), procure thatprevent:
(i) all income received by any matter reasonably undertaken in response to events beyond the Group is used to discharge liabilities control of any member of the GroupVendor’s Group or the Company, or within the control of the Vendor’s Group or the Company but which requires urgent or immediate response, in each case with the intention of minimising any adverse effect of such events;
(ii) no Group Company purchases the completion or performance of any asset obligations undertaken pursuant to any contract or takes any action which would increase its liabilities from arrangement entered into prior to the date of this Agreement (unless such contract or arrangement was entered into in each case contemplation of this Agreement and in excess order to avoid restrictions that would otherwise apply under this Clause), including, without limitation, the performance of the aggregate amount of $5,000 in any calendar month without the prior written approval of the Buyer, provided always that this Clause 9.1(d)(ii) shall not apply obligations in relation to joint purchasing arrangements as they have been carried on in the purchase twelve months prior to the date of any asset or increase of any liabilities undertaken or incurred in accordance with the terms of the Tribute Agreement and/or Mining Contract; andthis Agreement;
(iii) any matter undertaken at the Group does not incur expenditure in excess written request of the cash received by the Group from the Odzi Consideration and pursuant to the Tribute Agreement and Mining Contract without the prior written approval of the BuyerPurchaser;
(eiv) procure any action or omission which any member of the Vendor’s Group or the Company is required to take or omit to take by any applicable law or regulation;
(v) any disposal of stocks, obsolete assets or redundant assets, or any disposal of cash, in each case as part of the ordinary running of the Acquired Business;
(vi) any matters that are contemplated by Schedule 11 (“Pre-Sale Reorganisation”);
(vii) the relevant Group issue of shares by the Company shall, subject to the terms Vendor in connection with the capitalisation of intra-group debt owed by the Company to any member of the Tribute Agreement and Vendor’s Group; or
(viii) any actions, including the Mining Contractmaking of appropriate accounting entries, maintain and protect by the Group’s claims and licences in respect Company that are reasonably necessary for it to withdraw from the accounts receivable securitisation program that is operated by X X Xxxxxx on behalf of the Mine; andVendor’s Group prior to Completion.
(fc) procure that the relevant Group Company complies The acts and matters referred to in all material respects with their respective obligations under each Permit and all Applicable Laws.
9.2 Each Seller undertakes to notify the Buyer in writing sub-clause (a) are as soon as reasonably practicable after becoming aware of anything which constitutes or is reasonably likely to constitute a breach of the Sellers’ obligations under Clause 9.1 and to provide the Buyer all material details available to it in relation to such matter.
9.3 Each Seller shall use all reasonable endeavours to procure that, subject to the Buyer complying with its obligations under Clause 9.4, from the date of this Agreement until Completionfollows:
(ai) any advancement of turnaround or any voluntary unscheduled shutdown of any primary operating units (but not voluntary shutdowns of other units), in each case which is outside the Buyer and its advisers and representatives shall be given reasonable accessordinary course of business;
(ii) any acquisition or disposal of, upon reasonable noticeor of any rights in, any material asset including but not limited to the premises and assets by sale, lease, surrender, abandonment, exchange, gift or licence;
(iii) any declaration, authorisation, making or payment of a dividend whether in cash or in specie or dividend in kind or any reduction of capital;
(iv) any creation, allotment or issue or any grant of any option over or other right to subscribe or purchase, or any redemption or purchase of, any share or loan capital or securities of the Company and to all books, records, accounts and documents controlled or used by the Company (including computer programmes) and shall be permitted to take copies of each securities convertible into any of the foregoing;
(bv) the directors entry by the Company into any material transaction or any agreement with any member of the Vendor’s Group excluding transactions entered into on the same or substantially equivalent terms as existing arrangements;
(vi) any creation or grant of any option, right to acquire, mortgage, charge, pledge, lien on, over or affecting the Shares and/or (other than a Permitted Encumbrance) the whole or any substantial part of the assets of the Company;
(vii) the making of any loan by the Company (other than the granting of trade credit in the ordinary course of the Acquired Business or other loans in the ordinary course of the Acquired Business) to any person (other than arm’s length loans to a member of the Vendor’s Group, any of the Company’s employees or any other employees of any member of the Vendor’s Group from time to time) and employees the entry into any other agreement which would require any amount to be recognised as a constituent of the Final Third Party Debt Amount at Completion;
(viii) any material amendment to the memorandum or articles of association of the Company;
(ix) any material change to the accounting practices or policies of the Company shall be instructed to giveexcept where required by applicable accounting practices or principles coming into force, as soon as reasonably practicableor in respect of financial periods ending, all such information and explanations after the date of Completion;
(x) the acquisition of any body corporate or business or the entering into of any partnership or joint venture arrangement;
(xi) the entry into any material lease of Immovable Property except (a) in the ordinary course of the Acquired Business or (b) for renewals of existing leases on substantially similar terms;
(xii) the entry into any contract or commitment otherwise than in the ordinary course of business which is material, or which is of an unusual or abnormal nature, or which is material to the Buyer as operation of the Buyer reasonably requests; andAcquired Business and is not expected to be fully performed within 24 months of such contract or commitment being entered into;
(cxiii) the Buyer and its technical advisers shall be entitled to have reasonable access issue, sale, purchase, redemption or repurchase by the Company of any equity securities of the Company, excluding the issue of shares by the Company to the Mine Vendor in relation to perform such drillingthe capitalisation of intra-group debt owed by the Company to members of the Vendor’s Group;
(xiv) the granting of any guarantees or indemnities by the Company, testing otherwise than in the ordinary course of the Acquired Business;
(xv) the settlement or compromise of any litigation or arbitration with a value of over £100,000;
(xvi) the entering into of any litigation, arbitration, mediation or similar formal dispute procedure (except debt recovery in the ordinary course, and sampling they find reasonably necessary save in circumstances where it is reasonable to do so in order to confirm the contents of the Feasibility Study. The parties agree that all samples and other data generated prevent a claim or potential claim becoming time-barred or in connection with the Feasibility Study and any technical report connected therewith shall belong circumstances where it is reasonable to the Group.seek injunctive relief on an urgent basis);
9.4 Any activities undertaken by the Buyer (xvii) except in accordance with Clause 9.3 shall be undertaken 14 and Schedule 8, the termination of the employment (except for cause) or the material variation to the terms of employment (other than variations that are consistent with group-wide variations applying across the Vendor’s Group) of any employee whose base annual salary exceeds £50,000;
(xviii) except in accordance with Clause 14 and Schedule 8 or to fill a vacancy either existing at the Buyer’s own risk, at its own cost and for its own benefit and time of this Agreement or created by the Buyer shall:
(a) notwithstanding any other provision departure of an employee of the Company after the date of this Agreement, the employment of (a) any new employee with a base annual salary over £40,000, (b) any individual who, immediately prior to being employed by the Company, was employed by another member of the Vendor’s Group, or (c) any new employee who is to be solely or principally involved on the LDPE Project where such employment is not have any authority to, contemplated by the plan to be agreed by the Vendor and must not purport to, bind Purchaser relating to the Sellers or the Company to any obligationsLDPE Project;
(bxix) conduct all its activities the acts and matters referred to in accordance with the terms paragraph 2(B) of the Permits Schedule 5 (including, without limitation, those relating to mining practices, safety requirements and the environment) and in a good, safe and workmanlike manner and using good mining practices“Pensions”);
(cxx) carry out all rehabilitation cancellation of or any land disturbed by itchange to the terms of, or the doing (or failure to do) anything likely to result in the avoidance of, any insurance cover for the benefit of the Company or its assets;
(dxxi) lodge, or meet the full cost of, any performance bonds that are required entry into capital commitments (excluding capital commitments in relation to be lodged as a result of its activities or proposed activities; and
(ethe LDPE Project) comply and procure compliance by its agents, advisors and employees with all Applicable Laws, including environmental laws.
9.5 The Buyer indemnifies and shall keep indemnified the Sellers and the Company at all times against all claims and losses which have accrued or which may accrue directly from the Buyer’s activities (and the activities of the Buyer’s agents, employees, officers and contractors) at the Mine and the exercise of its rights under Clause 9.3. Notwithstanding any other provision of this Agreement, this Clause 9.5 survives termination of this Agreement.
9.6 The Sellers shall procure that from between the date of this Agreement and Completion of an aggregate amount in excess of $5,000,000;
(xxii) the entry into any agreement or the voluntary assumption of any legal obligation to do any of the acts and matters specified in this sub-clause 8(c);
(xxiii) the material variation of any agreement or transaction which the Company would by virtue of this sub-clause 8(c) have been prevented from entering into; and
(xxiv) the adoption or variation of any material employee bonus or incentive scheme (including performance targets).
(d) From the date hereof until the Completion Date, the Vendor will give, and will cause the Company to give, the Purchaser and its representatives such person as the Buyer may from time to time nominate shall be given the same notices and reasonable information as if he were a director and shareholder in respect of the Company as the Purchaser may reasonably request and notice of any matter coming to the knowledge of Xxx Xxxxxxx, Xxx Xxxxx, Xxxxxxx Xxxxxxx, Xxxxxxx Xxxxxx, Xxxx X’Xxxxx, Xxxx Xxxxx, Xxxxxxx Xxxxxx or Xxxxxx Xxxxx after the date of this Agreement which the relevant individual is aware or ought reasonably to have been aware constitutes a breach of this Clause 8 or any of the Warranties. The Vendor undertakes that such person shall immediately prior to Completion the individuals listed in Schedule 1 in the definition of “so far as the Vendor is aware” will be invited and entitled consulted by one or more of the individuals named in the preceding sentence of this paragraph in order to attend as an observer (but not as determine whether a director, shadow director, officer notification is required under this sub-clause in relation to a breach of this Clause 8 or shareholder) at all board, management and shareholder meetingsany of the Warranties.
9.7 The Sellers (e) Subject to sub-clause (b), between the date of this Agreement and Completion, the Vendor will comply with, and procure that the Company complies with, the conduct of business provisions contained in paragraph 1 of Schedule 10 (“Wilton LDPE Project”).
(f) Between the date of this Agreement and Completion the Vendor shall indemnify and procure that the Company shall keep indemnified the Buyer and the Buyer’s Group at all times following Completion against all claims and losses which accrue directly not depart in any material respect from existing commitments to capital expenditure, excluding any breach of Clause 9.1(d) (such commitments to the extent such losses are not compensated they relate to “Project X”, being the proposal to convert the Arosolvar unit to naphtha processing in order to increase feed-product differentials.
(g) The Vendor shall procure that the Company shall by no later than immediately before Completion repay any amount owed to the Vendor’s Group properly to be regarded as within the Intra-Group Balances to the Vendor (as trustee for the relevant members of the Vendors’ Group) and the Vendor shall procure that the relevant member of the Vendor’s Group shall repay any amount owed to the Company properly to be regarded as within the Intra-Group Balances to the Company. Such repayment shall be made in immediately available funds and in the currency in which the relevant amount was expressed to be repayable regardless of whether relevant amounts are then due or payable such that following the repayments contemplated by this sub-clause, Intra-Group Balances as at Completion Accountswill be zero. Subject to the following sentence, if following Completion, it is discovered that any Intra Group Balance remains after such repayment, whether owing by the Company or by a member of the Vendor’s Group, such remaining Intra-Group Balance shall be written off by the Company and the relevant member of the Vendor’s Group. Where any such remaining Intra-Group Balances are owed to the Company and, had all such Intra-Group Balances been settled immediately prior to Completion, that settlement would have resulted in an increase in the Initial Cash Consideration pursuant to an adjustment under Clause 4(a)(i) or (ii), but for the fact that such increase was prevented or limited under Clause 4(a) by virtue of it otherwise resulting in an amount over the Debt Free Price being payable, then to the extent only that such increase would have been so prevented or limited, the Company shall not be obliged to write off such remaining Intra-Group Balances.
(h) Following the date of this Agreement and prior to the Completion Date the Vendor shall be permitted to procure that the Company completes the Lease.
(i) Following the date of this Agreement and prior to the Completion Date the Vendor shall be permitted to procure that the Company carries out or procures the carrying out of the Outstanding Refurbishment Works. Following the Completion Date, the Purchaser shall procure that the Company carries out or procures the carrying out of the Outstanding Refurbishment Works.
(j) The Purchaser shall pay to the Vendor on the Completion Date the sum of £0.35 million exclusive of VAT (if applicable) towards the Outstanding Refurbishment Cost. The Outstanding Refurbishment Cost itself shall be met by the Vendor as and when such costs fall due.
(k) Following the date of this Agreement and prior to the Completion Date and to the extent not already implemented by the Company, the Vendor will be permitted at its own expense to continue to negotiate on behalf of the Company a 10% reduction in the surplus floor space demised by the Lease in accordance with clause 6.7 of the Lease and/or at its own expense to otherwise negotiate a reduction in surplus floor space demised by the Lease on terms which do not involve the Company incurring any cost or expense not fully for the account of the Vendor.
Appears in 1 contract
CONDUCT OF BUSINESS BEFORE COMPLETION. 9.1 From Normal course
5.1 Pending Completion the date of this Agreement until Completion, each Seller shall use all reasonable endeavours to:
(a) procure that each Group Company will carry on its business in the ordinary and usual course;
(b) procure that each Group Company shall comply with the requirements of Schedule 4;
(c) not, and shall procure that each Group Company shall notcontinues to carry on its business, doas carried on before the date of this Agreement, allow or procure, any act or omission which would render in the normal course and does not do any of those matters set out in Schedule 4 without the Warranties untrueconsent in writing of the Purchaser (not to be unreasonably withheld or delayed).
5.2 Clause 5.1 does not apply in respect of and shall not operate to restrict or prevent any Group Company from:
5.2.1 fulfilling any obligation specifically provided for in this Agreement or in any other Transaction Document;
5.2.2 taking any action as required by and in compliance with Applicable Laws (provided that, inaccurate or misleading if repeated at Completion by reference to the circumstances then subsistingextent reasonably practicable, the Seller promptly notifies the Purchaser of such required action before the relevant Group Company or Group Companies take such action and, if not so reasonably practicable, promptly thereafter);
(d) 5.2.3 undertaking any step to implement the Reorganisation Steps Plan and/or the IPC Pension Scheme Restructuring Steps in addition respect of the Reorganisations;
5.2.4 completing or performing any obligation pursuant to complying with any contract, agreement or arrangement entered into prior to the requirements date of Schedule 4 (and notwithstanding any conflict with those provisions)this Agreement, provided that such contract, agreement or arrangement was entered into in the normal course of business; or
5.2.5 entering into the New Contracts.
5.3 Subject to Applicable Laws, pending Completion the Seller shall procure that:
5.3.1 upon the Purchaser giving reasonable notice to the Seller, the Purchaser and, subject to the execution of confidentiality agreements in a form reasonably acceptable to the Seller, its professional advisers, are given reasonable access during normal business hours to the books and records (iincluding records held in electronic form) all income received by of the Group is used (including the right to discharge liabilities of take copies at the Group;Purchaser’s own expense) and to its personnel; and
(ii) no 5.3.2 each Group Company purchases any asset shall supply the Purchaser and/or subject to the execution of confidentiality agreements in a form reasonably acceptable to the Seller its professional advisers with such information concerning the Group as the Purchaser or takes any action which would increase its liabilities from professional advisers may reasonably require.
5.4 The Seller undertakes to the date of this Agreement in each case in excess of the aggregate amount of $5,000 in any calendar month without the prior written approval of the BuyerPurchaser that, provided always that this Clause 9.1(d)(ii) shall not apply up until Completion, in relation to the purchase of any asset or increase of any liabilities undertaken or incurred in accordance Trusted Reviews Reorganisation, it shall procure that (save with the terms prior written consent of the Tribute Agreement and/or Mining ContractPurchaser):
5.4.1 the amount of the Fair Market Value shall not be agreed between the Company and Trusted Reviews, nor determined by an independent firm of accountants;
5.4.2 the amount of the Reverse Licence Consideration shall not be agreed between the Company and Trusted Reviews, nor determined by an independent firm of accountants;
5.4.3 the Relevant Date shall, at the request of the Purchaser, only be shortened (by way of agreement between the Company and Trusted Reviews) such that the amount of the Fair Market Value and the amount of the Reverse Licence Consideration do not fall to be determined by an independent firm of accountants, and not otherwise; and
(iii) the Group does not incur expenditure in excess of the cash received by the Group from the Odzi Consideration and pursuant to the Tribute Agreement and Mining Contract without the prior written approval of the Buyer;
(e) procure that the relevant Group Company shall, subject to the terms of the Tribute Agreement and the Mining Contract, maintain and protect the Group’s claims and licences in respect of the Mine; and
(f) procure that the relevant Group Company complies in all material respects with their respective obligations under each Permit and all Applicable Laws.
9.2 Each Seller undertakes to notify the Buyer in writing as soon as reasonably practicable after becoming aware of anything which constitutes 5.4.4 no other rights or is reasonably likely to constitute a breach of the Sellers’ obligations under Clause 9.1 and to provide the Buyer all material details available to it in relation to such matter.
9.3 Each Seller shall use all reasonable endeavours to procure that, subject to the Buyer complying with its obligations under Clause 9.4, from the date of this Agreement until Completion:
(a) the Buyer and its advisers and representatives powers shall be given reasonable accessexercised, upon reasonable noticeno other actions shall be undertaken and no other consents or agreements shall be made or given, to the premises and assets in each case by or on behalf of the Company and to all books, records, accounts and documents controlled or used by the Company (including computer programmes) and shall be permitted to take copies of each of the foregoing;
(b) the directors and employees of the Company shall be instructed to give, as soon as reasonably practicable, all such information and explanations to the Buyer as the Buyer reasonably requests; and
(c) the Buyer and its technical advisers shall be entitled to have reasonable access to the Mine to perform such drilling, testing and sampling they find reasonably necessary in order to confirm the contents of the Feasibility Study. The parties agree that all samples and other data generated Trusted Reviews in connection with the Feasibility Study IP and any technical report connected therewith shall belong to the Group.
9.4 Any activities undertaken by the Buyer in accordance with Clause 9.3 shall be undertaken at the Buyer’s own risk, at its own cost and for its own benefit and the Buyer shall:
(a) notwithstanding any other provision of this Agreement, not have any authority to, and must not purport to, bind the Sellers or the Company to any obligations;
(b) conduct all its activities in accordance with the terms of the Permits (including, without limitation, those relating to mining practices, safety requirements and the environment) and in a good, safe and workmanlike manner and using good mining practices;
(c) carry out all rehabilitation of any land disturbed by it;
(d) lodge, or meet the full cost of, any performance bonds that are required to be lodged as a result of its activities or proposed activities; and
(e) comply and procure compliance by its agents, advisors and employees with all Applicable Laws, including environmental laws.
9.5 The Buyer indemnifies and shall keep indemnified the Sellers and the Company at all times against all claims and losses which have accrued or which may accrue directly from the Buyer’s activities (and the activities of the Buyer’s agents, employees, officers and contractors) at the Mine and the exercise of its rights under Clause 9.3. Notwithstanding any other provision of this Agreement, this Clause 9.5 survives termination of this Data Transfer Agreement.
9.6 The Sellers shall procure that from the date of this Agreement until Completion such person as the Buyer may from time to time nominate shall be given the same notices and information as if he were a director and shareholder of the Company and that such person shall be invited and entitled to attend as an observer (but not as a director, shadow director, officer or shareholder) at all board, management and shareholder meetings.
9.7 The Sellers shall indemnify and shall keep indemnified the Buyer and the Buyer’s Group at all times following Completion against all claims and losses which accrue directly from any breach of Clause 9.1(d) (to the extent such losses are not compensated for in the Completion Accounts).
Appears in 1 contract
CONDUCT OF BUSINESS BEFORE COMPLETION. 9.1 From
4.1 Subject to applicable law and to clause 4.2, the date of this Agreement until Completion, each Seller shall use all reasonable endeavours to:
(a) procure that each the Target Group Company will carry carries on its business in the ordinary and usual course;
(b) procure that each Group Company shall comply course in a manner substantially consistent with the requirements past practice during the twelve (12) months preceding the date of Schedule 4;
(c) this Agreement with the consequence that the Seller shall not, and shall procure that each the Target Group Company shall not, dobetween the date of this Agreement and Completion undertake any of the acts or matters deviating from the ordinary course of business, allow including but not limited to the acts and matters listed in Schedule 8, in each case, without the prior written consent of the Purchaser (such consent not to be unreasonably withheld, conditioned or procuredelayed).
4.2 Neither clause 4.1 nor Schedule 8 shall operate so as to restrict or prevent:
(A) any act, omission or matter reasonably undertaken by any member of the Seller’s Group in the case of an emergency or disaster or other serious incident or circumstance that might result in a serious adverse effect on the Target Group with the intention of minimising any adverse effect on the Target Group, in which case, the Seller shall notify in advance the Purchaser of any such activities undertaken or, if it is not possible, as soon as reasonably practicable thereafter;
(B) completion or performance of any obligation undertaken pursuant to or in connection with any contract or arrangement entered into by any member of the Target Group before the date of this Agreement;
(C) payment in respect of any liability incurred by the Target Group (or in respect of which the action that resulted in such liability had been taken) prior to the date of this Agreement;
(D) any ordinary course cash management activities by the Target Group or the Seller as at the date of this Agreement, including: (i) capitalising, settling or incurring any Intra- Group Debt; (ii) implementing, operating or unwinding any cash pooling arrangements; (iii) upstreaming and downstreaming of funds by way of inter-company loans, dividends, distributions and equity contributions between members of the Target Group and/or members of the Retained Group; and (iv) factoring of any invoices or receivables by the Target Group;
(E) [***]
(F) [***]
(G) any matter required or expressly contemplated by or resulting from the provisions of this Agreement or any of the other Share Purchase Documents or necessary to give effect to their provisions;
(H) any act, omission or matter being undertaken at the written request, or with the written consent, of the Purchaser or Swisscom;
(I) any act or omission matter undertaken to give effect to or implement the arrangements set out in Schedule 10;
(J) other than any amendments to the Vodafone Share Incentive Plans applicable to employees of the Target Group, any actions in relation to employee share schemes to the extent put in place prior to the execution date of this Agreement, and to the extent envisaged by, or necessary to implement, the arrangements set out in clause 19;
(K) any act undertaken to negotiate or – with the exclusion of the [***] - settle any matter which would render is the subject of the Special Indemnities, provided that (i) if there is a such a settlement, the sole obligation on the Target Group deriving from such settlement is the payment of a cash amount - with no residual liability for the Target Group or assumption of any other obligation - and the relevant agreed payment will be captured in the Completion Accounts (to the extent not already settled by the Completion Close Time); and (ii) the Seller shall notify in advance the Purchaser of any such activities;
(L) [***]
(M) the execution of the Brand Licence Agreement and the Target making the payments contemplated therein prior to Completion (including any steps necessary in connection with such payments); or
(N) any matter required to be undertaken in order to comply with any applicable law or any request by a Governmental Entity;
(O) any act or matter undertaken in connection with energy and insurance services or the co-selling of financial services, provided that such services are run within their ordinary course following launch; or
(P) [***]
4.3 Notwithstanding the provisions of clause 34, any request for consent under clause 4.1 and notice under clause 4.2 shall be made only by e-mail to all the following e-mail addresses: [***]it being understood that any request for consent under clause 4.1 or notice under clause 4.2 sent to less than all the e-mail addresses provided under this clause 4.3 shall be considered as not validly sent.
4.4 The consent of the Purchaser for the purposes of clause 4.1 may only be given from any of the Warranties untruee-mail addresses identified in clause 4.3, inaccurate or misleading if repeated at Completion it being understood that the consent of the Purchaser for the purposes of clause 4.1 may be given by reference any one of the e-mail addresses identified in clause 4.3 and shall not require consent from all of them.
4.5 Consent under clause 4.1 shall be deemed to have been given to the circumstances then subsisting;Seller if such consent has neither been granted nor denied by the Purchaser within four (4) Business Days of the Seller making a request for consent in accordance with clause 4.3 and clause 4.4.
4.6 Without prejudice to clause 36, the Parties agree that any information to be communicated to the Purchaser as a basis for the exercise of any consent right pursuant to clause 4.3 shall be held in confidence by the Purchaser.
4.7 Subject to applicable law and without prejudice to clause 4.1 and 4.2, between the date of this Agreement and Completion, the Seller shall, and shall procure that the Target Group shall, as applicable, carry out the activities mentioned in this clause 4.7.
(dA) in addition to complying with The Seller shall, or shall procure that the requirements of Schedule 4 (and notwithstanding any conflict with those provisions), procure thatTarget Group shall:
(i) all income received by deliver to the Group is used to discharge liabilities of the Group;Purchaser:
(a) [***]
(b) [***]
(c) [***]
(ii) no Group Company purchases any asset or takes any action which would increase its liabilities from the date of this Agreement in each case in excess of the aggregate amount of $5,000 in any calendar month without the prior written approval of the Buyer, provided always that this Clause 9.1(d)(ii) shall not apply in relation to the purchase of any asset or increase of any liabilities undertaken or incurred in accordance with the terms of the Tribute Agreement and/or Mining Contract; and[***]
(iiiB) the Group does not incur expenditure in excess of the cash received by the Group from the Odzi Consideration and pursuant to the Tribute Agreement and Mining Contract without the prior written approval of the Buyer;[***]
(e) procure that the relevant Group Company shall, subject to the terms of the Tribute Agreement and the Mining Contract, maintain and protect the Group’s claims and licences in respect of the Mine; and
(f) procure that the relevant Group Company complies in all material respects with their respective obligations under each Permit and all Applicable Laws.
9.2 Each Seller undertakes to notify the Buyer in writing as soon as reasonably practicable after becoming aware of anything which constitutes or is reasonably likely to constitute a breach of the Sellers’ obligations under Clause 9.1 and to provide the Buyer all material details available to it in relation to such matter.
9.3 Each Seller shall use all reasonable endeavours to procure that, subject to the Buyer complying with its obligations under Clause 9.4, from the date of this Agreement until Completion:
(a) the Buyer and its advisers and representatives shall be given reasonable access, upon reasonable notice, to the premises and assets of the Company and to all books, records, accounts and documents controlled or used by the Company (including computer programmes) and shall be permitted to take copies of each of the foregoing;
(b) the directors and employees of the Company shall be instructed to give, as soon as reasonably practicable, all such information and explanations to the Buyer as the Buyer reasonably requests; and
(c) the Buyer and its technical advisers shall be entitled to have reasonable access to the Mine to perform such drilling, testing and sampling they find reasonably necessary in order to confirm the contents of the Feasibility Study. The parties agree that all samples and other data generated in connection with the Feasibility Study and any technical report connected therewith shall belong to the Group.
9.4 Any activities undertaken by the Buyer in accordance with Clause 9.3 shall be undertaken at the Buyer’s own risk, at its own cost and for its own benefit and the Buyer shall:
(a) notwithstanding any other provision of this Agreement, not have any authority to, and must not purport to, bind the Sellers or the Company to any obligations;
(b) conduct all its activities in accordance with the terms of the Permits (including, without limitation, those relating to mining practices, safety requirements and the environment) and in a good, safe and workmanlike manner and using good mining practices;
(c) carry out all rehabilitation of any land disturbed by it;
(d) lodge, or meet the full cost of, any performance bonds that are required to be lodged as a result of its activities or proposed activities; and
(e) comply and procure compliance by its agents, advisors and employees with all Applicable Laws, including environmental laws.
9.5 The Buyer indemnifies and shall keep indemnified the Sellers and the Company at all times against all claims and losses which have accrued or which may accrue directly from the Buyer’s activities (and the activities of the Buyer’s agents, employees, officers and contractors) at the Mine and the exercise of its rights under Clause 9.3. Notwithstanding any other provision of this Agreement, this Clause 9.5 survives termination of this Agreement.
9.6 The Sellers shall procure that from the date of this Agreement until Completion such person as the Buyer may from time to time nominate shall be given the same notices and information as if he were a director and shareholder of the Company and that such person shall be invited and entitled to attend as an observer (but not as a director, shadow director, officer or shareholder) at all board, management and shareholder meetings.
9.7 The Sellers shall indemnify and shall keep indemnified the Buyer and the Buyer’s Group at all times following Completion against all claims and losses which accrue directly from any breach of Clause 9.1(d) (to the extent such losses are not compensated for in the Completion Accounts).4.8 [***]
Appears in 1 contract
Samples: Sale and Purchase Agreement (Vodafone Group Public LTD Co)
CONDUCT OF BUSINESS BEFORE COMPLETION. 9.1 From 4.1 Between the date of this Agreement until Completion, each Seller shall use all reasonable endeavours toagreement and the earlier of the Completion Date or this agreement being terminated in accordance with its terms:
(a) procure that each Group Company will carry on its business in the ordinary and usual course;
Seller (bi) procure that each Group Company shall comply (solely with respect to the requirements of Schedule 4;
(c) notReinsured Business), and shall procure that each Group the Company and, solely with respect to the Reinsured Business, the Ceding Companies and Life shall, operate and carry on the Reinsured Business in the ordinary course of business, and (ii) shall not (solely with respect to the Reinsured Business), and shall procure that the Company and, solely with respect to the Reinsured Business, the Ceding Companies and Life shall not, doundertake any of the acts or matters listed in Schedule 3; in either case, allow except (A) with the prior written consent of the Purchaser (which consent shall not be unreasonably conditioned, withheld or procuredelayed), (B) if and to the extent the Seller determines, acting reasonably, that such action is required by applicable Law (and in respect of which the Purchaser shall be, to the extent permitted by applicable Law, notified and reasonably consulted as far in advance as is practicable in the circumstances), (C) if permitted or required by this agreement or any of the Transaction Documents, or (D) as set out in the Disclosure Letter; and
(b) the Seller shall notify the Purchaser of any matter, circumstance, act or omission which would render any of the Warranties untrue, inaccurate is or misleading if repeated at Completion by reference may reasonably be expected to the circumstances then subsisting;
(d) in addition to complying with the requirements of Schedule 4 (and notwithstanding any conflict with those provisions), procure that:
(i) all income received by the Group is used to discharge liabilities of the Group;
(ii) no Group Company purchases any asset or takes any action which would increase its liabilities from the date be a breach of this Agreement in each case in excess of the aggregate amount of $5,000 in any calendar month without the prior written approval of the Buyer, provided always that this Clause 9.1(d)(ii) shall not apply in relation to the purchase of any asset clause 4 or increase of any liabilities undertaken or incurred in accordance with the terms of the Tribute Agreement and/or Mining Contract; and
(iii) the Group does not incur expenditure in excess of the cash received by the Group from the Odzi Consideration and pursuant to the Tribute Agreement and Mining Contract without the prior written approval of the Buyer;
(e) procure that the relevant Group Company shall, subject to the terms of the Tribute Agreement and the Mining Contract, maintain and protect the Group’s claims and licences in respect of the Mine; and
(f) procure that the relevant Group Company complies in all material respects with their respective obligations under each Permit and all Applicable Laws.
9.2 Each Seller undertakes to notify the Buyer in writing as soon as reasonably practicable after becoming the Seller becomes aware of anything which constitutes any such matter, circumstance, act or is reasonably likely omission; provided, that the failure of the Seller to provide any notice contemplated by this clause 4.1 shall not (x) constitute a failure to satisfy any condition set out in Schedule 1, (y) otherwise relieve any person from its obligation to consummate the transactions contemplated by the Transaction Documents or (z) in and of itself provide the basis for the Purchaser or any other party to seek damages, or increase the level of damages recoverable, in respect of any breach of the Sellers’ obligations under Clause 9.1 and to provide the Buyer all material details available to it in relation to such mattercovenant or warranty.
9.3 Each Seller 4.2 Clause 4.1 shall use all reasonable endeavours not operate so as to procure that, subject to the Buyer complying with its obligations under Clause 9.4, from the date of this Agreement until Completionrestrict or prevent:
(a) any matter reasonably undertaken by the Buyer and its advisers and representatives shall be given reasonable access, upon reasonable notice, Seller (solely with respect to the premises and assets of Reinsured Business), the Company and to all books, records, accounts and documents controlled or used by the any Ceding Company (including computer programmessolely with respect to the Reinsured Business) in an emergency or disaster situation with the intention of minimising any adverse effect thereof (and shall of which the Purchaser will be permitted to take copies of each of the foregoingpromptly notified);
(b) the directors and employees completion or performance of any obligations required to be undertaken pursuant to any agreement entered into by the Seller (solely with respect to the Reinsured Business), the Company shall or any Ceding Company (solely with respect to the Reinsured Business) prior to the date of this agreement (and, in respect of any such obligations which would prevent or have prevented compliance with clause 4.1, the Purchaser will be instructed to give, as soon as promptly notified where reasonably practicable, all such information and explanations to the Buyer as the Buyer reasonably requests; and
(c) the Buyer and its technical advisers shall be entitled to have reasonable access to the Mine to perform such drilling, testing and sampling they find reasonably necessary in order to confirm the contents of the Feasibility Study. The parties agree that all samples and other data generated in connection with the Feasibility Study and any technical report connected therewith shall belong to the Group.
9.4 Any activities undertaken by the Buyer in accordance with Clause 9.3 shall be undertaken at the Buyer’s own risk, at its own cost and for its own benefit and the Buyer shall:
(a) notwithstanding any other provision of this Agreement, not have any authority to, and must not purport to, bind the Sellers or the Company to any obligations;
(b) conduct all its activities in accordance with the terms of the Permits (including, without limitation, those relating to mining practices, safety requirements and the environment) and in a good, safe and workmanlike manner and using good mining practices);
(c) carry out all rehabilitation any action necessary (in the reasonable belief of the Seller or the relevant Retained Group Member) in order to comply with any requirement of applicable Law (and in respect of any land disturbed by itsuch matter the Purchaser shall be consulted as far in advance as is practicable in the circumstances);
(d) lodge, any matter expressly provided for contemplated in this agreement or meet the full cost of, other Transaction Documents or reasonably necessary to give effect to any performance bonds that are required to of them (and in respect of any such matter the Purchaser shall be lodged consulted as a result of its activities or proposed activitiesfar in advance as is practicable in the circumstances); andor
(e) comply and procure compliance by its agents, advisors and employees with all Applicable Laws, including environmental lawsany matter undertaken at the express written request of the Purchaser.
9.5 The Buyer indemnifies 4.3 Subject to applicable legal and shall keep indemnified the Sellers and the Company at all times against all claims and losses which have accrued or which may accrue directly from the Buyer’s activities (and the activities of the Buyer’s agentsregulatory requirements, employees, officers and contractors) at the Mine and the exercise of its rights under Clause 9.3. Notwithstanding any other provision of this Agreement, this Clause 9.5 survives termination of this Agreement.
9.6 The Sellers shall procure that from between the date of this Agreement until agreement and Completion such person as and upon reasonable notice being given by the Buyer Purchaser, the Seller shall, and shall procure that the Company and the Ceding Companies (solely with respect to the Reinsured Business) shall, consult with the Purchaser on a reasonably regular basis (and the Seller shall procure that the Company and the Ceding Companies (solely with respect to the Reinsured Business) shall, (subject to any obligations they may from time have under existing agreements) allow the Purchaser and its representatives reasonable access during Working Hours to time nominate shall be given the same notices and information as if he were a director and shareholder senior executives of the Company and the Ceding Companies in respect of the Reinsured Business and the books and records of the Ceding Companies relating to the Reinsured Business and such other information reasonably requested by the Purchaser as shall allow them to make a reasonably detailed assessment of the conduct and operation of the Reinsured Business; provided that the Seller and its Affiliates may withhold any document (or portions thereof) or information (A) that is subject to the terms of a non-disclosure agreement with a third party in effect on the date of this agreement or (B) that constitutes privileged attorney-client communications or attorney work product and the transfer of which, or the provision of access to which, as reasonably determined by such person party’s counsel, constitutes a waiver of any such privilege; provided, further, that with respect to clauses (A) or (B) above, the Seller and its Affiliates will discuss with Purchaser a reasonable solution to transfer the information referred to in this clause 4.3 to Purchaser without violating any such privilege or confidentiality restriction. The Purchaser shall be invited responsible for, and entitled shall reimburse, all reasonable, out-of-pocket costs incurred by the Seller and its Affiliates in complying with this clause 4.3. Notwithstanding anything to attend the contrary in this clause 4.3, the Purchaser will have no right to obtain Tax information with respect to the Ceding Companies or the Company except as an observer (but not as a director, shadow director, officer or shareholder) at all board, management and shareholder meetingsexpressly set out in Schedule 7.
9.7 The Sellers shall indemnify and shall keep indemnified 4.4 Between the Buyer date of this agreement and the Buyer’s Group at all times following earlier of the Completion against all claims and losses which accrue directly from Date or this agreement being terminated in accordance with its terms, the Purchaser shall not amend, modify, supplement, terminate or waive any breach provision of Clause 9.1(dthe Escrow Agreement, enter into any side agreement relating thereto, or take any other action that would result in (i) (any Investor that is a party to the extent such losses are Escrow Agreement having any right: (x) to the return of funds delivered from the escrow fund governed by the Escrow Agreement, the Purchaser or any Affiliate of the Purchaser or (y) not compensated for in to fully discharge its obligations thereunder or (ii) any person having the Completion Accounts)right to, directly or indirectly, delay or prohibit the distribution of funds from the escrow fund governed by the Escrow Agreement.
Appears in 1 contract
CONDUCT OF BUSINESS BEFORE COMPLETION. 9.1 10.1 From the date of this Agreement until Completion, each Seller shall use all reasonable endeavours to:
(a) procure that each Group Company will carry on its business in the ordinary and usual course;
(b) procure that each Group Company shall comply with the requirements of Schedule 4;
(c) not, and shall procure that each Group Company shall not, do, allow or procure, any act or omission which would render any of the Warranties untrue, inaccurate or misleading if repeated at Completion by reference to the circumstances then subsisting;
(d) in addition to complying with the requirements of Schedule 4 (and notwithstanding any conflict with those provisions), procure that:
(i) all income received by the Group is used to discharge liabilities of the Group;
(ii) no Group Company purchases any asset or takes any action which would increase its liabilities from the date of this Agreement in each case in excess of the aggregate amount of $5,000 in any calendar month without the prior written approval of the Buyer, provided always that this Clause 9.1(d)(ii) shall not apply in relation to the purchase of any asset or increase of any liabilities undertaken or incurred in accordance with the terms of the Tribute Agreement and/or Mining Contract; and
(iii) the Group does not incur expenditure in excess of the cash received by the Group from the Odzi Consideration and pursuant to the Tribute Agreement and Mining Contract without the prior written approval of the Buyer;
(e) procure that the relevant Group Company shall, subject to the terms of the Tribute Agreement and the Mining Contract, maintain and protect the Group’s claims and licences in respect of the Mine; and
(f) procure that the relevant Group Company complies in all material respects with their respective obligations under each Permit and all Applicable Laws.
9.2 Each Seller undertakes to notify the Buyer in writing as soon as reasonably practicable after becoming aware of anything which constitutes or is reasonably likely to constitute a breach of the Sellers’ obligations under Clause 9.1 and to provide the Buyer all material details available to it in relation to such matter.
9.3 Each Seller shall use all reasonable endeavours to procure that, subject to the Buyer complying with its obligations under Clause 9.4, from the date of this Agreement until Completion:
(a) the Buyer and its advisers and representatives Business Warrantors shall be given reasonable access, upon reasonable notice, to the premises and assets of procure that the Company will carry on its business in the ordinary and to all books, records, accounts usual course and documents controlled or used by in the Company (including computer programmes) manner provided in this Clause 10 and shall be permitted to take copies of each of the foregoingSchedule 4;
(b) the directors Share Sellers shall exercise all voting rights and employees powers of control available to them as shareholders in the Company with a view to procuring that the Company’s business is carried on in the ordinary and usual course
10.2 The Share Sellers undertake to promptly notify the Buyer in writing upon becoming aware of anything which constitutes or may constitute, a breach of the Share Sellers’ obligations under Clause 10.1 (and in giving such notification shall provide sufficient detail to allow the Buyer to identify the nature and scope of the breach).
10.3 The:
(a) Business Warrantors shall, insofar as is within the Company’s control, ensure that the Company does not do or omit to do anything which would at any time before or at Completion be inconsistent with any of the Business Warranties, breach any Business Warranty or make any Business Warranty untrue or misleading (recognising that Aris Papageorghiou is not a director of the Company and therefore is only able to exercise the rights available to him as a shareholder in respect of this Clause);
(b) Share Sellers shall not do or omit to do anything which would at any time before or at Completion be instructed to giveinconsistent with any of the Fundamental Warranties, as soon as reasonably practicable, all such information and explanations to the Buyer as the Buyer reasonably requestsbreach any Fundamental Warranty or make any Fundamental Warranty untrue or misleading; and
(c) the Buyer and its technical advisers Warrantholder shall not do or omit to do anything which would at any time before or at Completion be entitled to have reasonable access to the Mine to perform such drilling, testing and sampling they find reasonably necessary in order to confirm the contents inconsistent with any of the Feasibility Study. The parties agree that all samples and other data generated in connection with the Feasibility Study and Warrantholder Warranties, breach any technical report connected therewith shall belong to the GroupWarrantholder Warranty or make any Warrantholder Warranty untrue or misleading.
9.4 Any activities undertaken by the Buyer 10.4 Nothing in accordance with this Clause 9.3 10 shall be undertaken at the Buyer’s own risk, at its own cost and for its own benefit and the Buyer shallapply to operate or restrict or prevent:
(a) notwithstanding any other provision of this Agreementmatter required by law, not have regulation or any regulatory authority to, and must not purport to, bind the Sellers or the Company from time to any obligationstime;
(b) conduct all its activities any matter required in accordance order to give effect to this Agreement or in connection with the terms of the Permits (including, without limitation, those relating to mining practices, safety requirements and the environment) and in a good, safe and workmanlike manner and using good mining practices;matters contemplated by this Agreement; or
(c) carry out all rehabilitation any matter undertaken at the written request of any land disturbed by it;
(d) lodge, the Buyer or meet with the full cost of, any performance bonds that are required to be lodged as a result of its activities or proposed activities; and
(e) comply and procure compliance by its agents, advisors and employees with all Applicable Laws, including environmental laws.
9.5 The Buyer indemnifies and shall keep indemnified the Sellers and the Company at all times against all claims and losses which have accrued or which may accrue directly from the Buyer’s activities (and the activities prior written consent of the Buyer’s agents, employees, officers and contractors) at the Mine and the exercise of its rights under Clause 9.3. Notwithstanding any other provision of this Agreement, this Clause 9.5 survives termination of this Agreement.
9.6 The Sellers shall procure that from the date of this Agreement until Completion such person as the Buyer may from time to time nominate shall be given the same notices and information as if he were a director and shareholder of the Company and that such person shall be invited and entitled to attend as an observer (but not as a director, shadow director, officer or shareholder) at all board, management and shareholder meetings.
9.7 The Sellers shall indemnify and shall keep indemnified the Buyer and the Buyer’s Group at all times following Completion against all claims and losses which accrue directly from any breach of Clause 9.1(d) (to the extent such losses are not compensated for in the Completion Accounts).
Appears in 1 contract
Samples: Share Purchase Agreement
CONDUCT OF BUSINESS BEFORE COMPLETION. 9.1 From (i) Subject to sub-clause (B), between the date of this Agreement until and Completion the Sellers shall procure that the European Culinary Brands Business will be carried on in the ordinary and usual course and shall not make (or agree to make) any payment other than routine payments in the ordinary and usual course of trading and consistent with past practice. Subject to sub-clause (B), in particular (but without prejudice to the generality of the foregoing) the Sellers shall procure that the acts or matters specified in sub-clause (C) do not occur in relation to the European Culinary Brands Business without the prior written consent of the Purchaser (such consent not to be unreasonably withheld or delayed).
(ii) Pending Completion, each the Sellers shall and shall procure that the Business Sellers and the Share Seller shall use all reasonable endeavours toshall:
(a) use their reasonable endeavours to ensure that any changes which occur to the information in Attachment 4 are reflected in amendments made to that Attachment, provided always that the Sellers shall procure that each Group Company no Intellectual Property listed in one Part of Attachment 4 will carry on its business be moved to be listed in another part of Attachment 4 without the ordinary and usual courseprior agreement of the Purchaser;
(b) procure ensure that each Group Company shall comply with the requirements assignor or licensor under the Intellectual Property Assignments and the Intellectual Property Licences is the beneficial owner of Schedule 4the rights to be assigned or granted by 20 20 the Sellers and/or the Business Sellers to the Purchaser pursuant to the Intellectual Property Assignments and the Intellectual Property Licences;
(c) notsubject to Clause 37, on reasonable written notice allow representatives of the Purchaser access to the Books and Records of the Company and the Business on appointment during normal Working Hours and make available appropriate management of the Company and the Business to hold meetings on reasonable notice at such locations as the Sellers may reasonably determine and for such periods as may reasonably be necessary, in each case for the sole purposes of facilitating preparations for Completion and the continuing arrangements between the Seller's Company and the Purchaser's Company commencing at Completion, save that it shall procure that each Group Company shall not, do, allow or procure, be reasonable for the Sellers not to participate in any act or omission such arrangements where the Trustee considers it necessary for the Sellers not to participate; and
(d) promptly disclose to the Purchaser information which would render may constitute a breach of any of the Warranties untrue, inaccurate or misleading if they were to be repeated at any time before Completion by reference to the facts and circumstances then subsisting;
, where such information comes to the notice of those persons whose names are listed in paragraph (di)(a) in addition to complying with the requirements of Schedule 4 (and notwithstanding any conflict with those provisions), procure that:
(i) all income received by the Group is used to discharge liabilities of the Group;
(ii) no Group Company purchases any asset or takes any action which would increase its liabilities from the date definition of this Agreement "SO FAR AS THE SELLERS ARE AWARE" in each case in excess of the aggregate amount of $5,000 in any calendar month without the prior written approval of the Buyer, provided always that this Clause 9.1(d)(ii) shall not apply in relation to the purchase of any asset or increase of any liabilities undertaken or incurred in accordance with the terms of the Tribute Agreement and/or Mining Contract; andSchedule 1.
(iii) Pending Completion, the Group does not incur expenditure in excess of the cash received by the Group from the Odzi Consideration Sellers shall and pursuant to the Tribute Agreement and Mining Contract without the prior written approval of the Buyer;
(e) shall procure that the relevant Group Company shall, subject to the terms of the Tribute Agreement Business Sellers and the Mining ContractShare Seller shall notify the Purchaser prior to, maintain and protect consult with the Group’s claims and licences Purchaser in connection with, commencing any enforcement proceedings or resolving any legal proceedings or disputes in respect of the Mine; and
(f) procure that the relevant Group Company complies in all material respects with their respective obligations under each Permit and all Applicable Laws.
9.2 Each Seller undertakes to notify the Buyer in writing as soon as reasonably practicable after becoming aware of anything which constitutes or is reasonably likely to constitute a breach of the Sellers’ obligations under Clause 9.1 and to provide the Buyer all material details available to it in relation to such matter.
9.3 Each Seller shall use all reasonable endeavours to procure that, subject to the Buyer complying with its obligations under Clause 9.4, from the date of this Agreement until Completionof:
(a) the Buyer and its advisers and representatives shall be given reasonable access, upon reasonable noticeBusiness IPR or know-how proprietary to a member of the Sellers' Group which is used exclusively in the European Culinary Brands Business;
(b) any Intellectual Property or know-how which is the subject of any of the Licences In;
(c) any of the Raguletto Marks; 21 21
(d) any Intellectual Property proprietary to the Company; or
(e) any Licensed Rights, to the premises extent that such commencement or resolution of such proceedings or disputes would, or is likely to, have a material adverse effect on any part of the European Culinary Brands Business in any territory.
(iv) Prior to Completion, each party shall give to the other parties such information as they may reasonably require (including, without limitation, forecasts) in order to procure that the arrangements contemplated by the Co-packing Agreements may proceed after Completion.
(B) Sub-clause (A) shall not operate so as to restrict or prevent:
(i) any matter reasonably undertaken in response to events beyond the control of any member of the Sellers' Group and the Company, with the intention of minimising any adverse effect of such events where it is not reasonably practicable in the circumstances for the Sellers to have obtained the consent of the Purchaser before undertaking such matter PROVIDED THAT the Sellers shall inform the Purchaser of the relevant matter and circumstances promptly after doing so;
(ii) the completion or performance of any obligations undertaken pursuant to any contract or arrangement entered into prior to the date of this Agreement to the extent that such Completion or performance is due prior to Completion;
(iii) any matter undertaken at the request of the Purchaser;
(iv) any matter contemplated by this Agreement or any action taken by any member of the Sellers' Group or the Company pursuant to this Agreement;
(v) any action or omission which any member of the Sellers' Group or the Company is required to take or omit to take by any applicable law or regulation or any Tax Authority;
(vi) any disposal of Stocks, obsolete assets or redundant assets, or any payment of cash, in each case consistent with past practice in the running of the European Culinary Brands Business;
(vii) the repayment of borrowings or indebtedness in the nature of borrowings to persons other than members of the Sellers' Group 22 22 where such borrowings are replaced by borrowings or indebtedness in the nature of borrowings from members of the Sellers' Group; or
(viii) the payment of one or more cash dividends by the Company.
(C) The acts and matters referred to in sub-clause (A) are as follows:
(i) a disposal of any of the tangible fixed assets comprised in the Business Assets or of the tangible fixed assets of the Company and where in any such case such disposal is of tangible fixed assets of an individual value in excess of E100,000 or an aggregate value in excess of E250,000;
(ii) (in relation to all booksthe Company) any declaration, recordsauthorisation, accounts and documents controlled making or used by payment of a dividend in specie or dividend in kind or other distribution;
(iii) (in relation to the Company) any creation, allotment or issue or any grant of any option over or other right to subscribe or purchase, or any redemption or purchase of, any share or loan capital or securities of the Company (including computer programmes) and shall be permitted to take copies of each or securities convertible into any of the foregoing;
(biv) any creation or grant of any option, right to acquire, mortgage, charge, pledge, lien, debenture or other encumbrance (other than a Permitted Encumbrance) on, over or affecting any of the Business Assets or any of the assets of the Company;
(v) the directors making of any loan by the Company (other than the granting of trade credit in the ordinary and employees usual course of business or other loans in the ordinary and usual course of business) to any person (other than to a member of the Sellers' Group or any of the Employees under the terms of their employment);
(vi) any change to the accounting practices or policies of the Company shall be instructed except where required by applicable accounting practices or principles;
(vii) the acquisition, whether by merger, consolidation, formation or otherwise, of any body corporate or business or the entering into of any partnership or joint venture arrangement which involves investment and/or the incurring of expenditure by the Business or the Company in excess of E100,000 in aggregate;
(viii) the entry into of any capital commitment (or making of any bid or offer which may lead to give, as soon as reasonably practicable, all such information and explanations a commitment) having a value or 23 23 involving expenditure in excess of E100,000 or which is a long term or unusual nature;
(ix) in relation to the Buyer as the Buyer reasonably requests; andCompany, borrowing any money (except borrowings from banks and other financial institutions which do not, in aggregate, exceed E5 million);
(cx) making any material change to the terms and conditions of employment of any Employee (including in relation to Benefits) in a manner which is inconsistent with past practices and current guidelines applicable within the Sellers' Group (other than salary reviews in the ordinary course of business) or terminating (except for good cause) or transferring (other than to a Business Seller in relation to the European Culinary Brands Business or to the Company) the Buyer and its technical advisers shall be entitled to have reasonable access to employment of any Senior Employee;
(xi) the Mine to perform such drilling, testing and sampling they find reasonably necessary in order to confirm the contents grant of the Feasibility Study. The parties agree that all samples and other data generated in connection with the Feasibility Study and any technical report connected therewith shall belong to the Group.
9.4 Any activities undertaken by the Buyer in accordance with Clause 9.3 shall be undertaken at the Buyer’s own risk, at its own cost and for its own benefit and the Buyer shalla licence or assignment:
(a) notwithstanding any other provision in respect of this Agreement, not have any authority to, and must not purport to, bind know-how proprietary to a member of the Sellers Sellers' Group which is used exclusively in the European Culinary Brands Business or in respect of the Company to any obligations;Business IPR; or
(b) conduct all its activities in accordance with respect of any Intellectual Property proprietary to the terms of the Permits (including, without limitation, those relating to mining practices, safety requirements and the environment) and in a good, safe and workmanlike manner and using good mining practicesCompany;
(cxii) carry out all rehabilitation permitting any insurances to lapse or doing anything which makes any policy of any land disturbed by itinsurance void or voidable;
(dxiii) lodge, or meet permitting any Intellectual Property owned by the full cost of, Company and/or any performance bonds that are required Business IPR and/or any of the Licensed Rights to be lodged lapse as a result of its activities the non-payment of any renewal fees, prolongation fees or proposed activities; and
any other official fees when due but (e) comply and procure compliance by its agents, advisors and employees with all Applicable Laws, including environmental laws.
9.5 The Buyer indemnifies and shall keep indemnified the Sellers and the Company at all times against all claims and losses which have accrued or which may accrue directly from the Buyer’s activities (and the activities only in respect of the Buyer’s agents, employees, officers and contractorsLicensed Rights) at the Mine and the exercise of its rights under Clause 9.3. Notwithstanding any other provision of this Agreement, this Clause 9.5 survives termination of this Agreement.
9.6 The Sellers shall procure that from the date of this Agreement until Completion such person as the Buyer may from time to time nominate shall be given the same notices and information as if he were a director and shareholder of the Company and that such person shall be invited and entitled to attend as an observer (but not as a director, shadow director, officer or shareholder) at all board, management and shareholder meetings.
9.7 The Sellers shall indemnify and shall keep indemnified the Buyer and the Buyer’s Group at all times following Completion against all claims and losses which accrue directly from any breach of Clause 9.1(d) (only to the extent that such losses are not compensated for lapse would, or is likely to have, a material adverse effect on any part of the European Culinary Brands Business in any territory;
(xiv) other than to the extent beyond the reasonable control of the Sellers' Group and other than in the Completion Accounts)ordinary course of business, any cancellation of or delay to the introduction of any new product of the European Culinary Brands Business (or any part thereof) or any advertising or media programmes or product promotions;
(xvi) the entry into of any agreement to do any of the acts and matters specified in this sub-clause.
Appears in 1 contract
Samples: Business and Share Sale and Purchase Agreement (Campbell Soup Co)
CONDUCT OF BUSINESS BEFORE COMPLETION. 9.1 From 4.1 Subject to Clause 4.2, the date of this Agreement until Completion, each Seller shall use all reasonable endeavours to:
(a) procure that each Group Company will carry on its business in the ordinary and usual course;
(b) procure that each Group Company shall comply with the requirements of Schedule 4;
(c) not, and shall procure that each Group Company shall not, do, allow or procure, any act or omission which would render any of during the Warranties untrue, inaccurate or misleading if repeated at Completion by reference to the circumstances then subsisting;
(d) in addition to complying with the requirements of Schedule 4 (and notwithstanding any conflict with those provisions), procure that:
(i) all income received by the Group is used to discharge liabilities of the Group;
(ii) no Group Company purchases any asset or takes any action which would increase its liabilities period from the date of this Agreement in each case in excess of the aggregate amount of $5,000 in any calendar month without the prior written approval of the Buyer, provided always that this Clause 9.1(d)(ii) shall not apply in relation to the purchase of any asset or increase of any liabilities undertaken or incurred in accordance with the terms of the Tribute Agreement and/or Mining Contract; and
(iii) the Group does not incur expenditure in excess of the cash received by the Group from the Odzi Consideration and pursuant to the Tribute Agreement and Mining Contract without the prior written approval of the Buyer;
(e) procure that the relevant Group Company shall, subject to the terms of the Tribute Agreement and the Mining Contract, maintain and protect the Group’s claims and licences in respect of the Mine; and
(f) procure that the relevant Group Company complies in all material respects with their respective obligations under each Permit and all Applicable Laws.
9.2 Each Seller undertakes to notify the Buyer in writing as soon as reasonably practicable after becoming aware of anything which constitutes or is reasonably likely to constitute a breach of the Sellers’ obligations under Clause 9.1 and to provide the Buyer all material details available to it in relation to such matter.
9.3 Each Seller shall use all reasonable endeavours to procure that, subject to the Buyer complying with its obligations under Clause 9.4, from the date of this Agreement until Completion:
(a) the Buyer Group Companies shall continue to carry on business in the normal course in compliance with all Laws applicable to them and its advisers and representatives shall be given reasonable access, upon reasonable notice, to in substantially the premises and assets same manner as their businesses have been carried on before the date of the Company and to all books, records, accounts and documents controlled or used by the Company (including computer programmes) and shall be permitted to take copies of each of the foregoingthis Agreement;
(b) the directors and employees Group Companies shall pay all premiums due on each insurance policy of the Company shall be instructed to give, Group Companies in effect as soon as reasonably practicable, all such information and explanations to of the Buyer as the Buyer reasonably requestsdate of this Agreement; and
(c) the Buyer and its technical advisers no Group Company shall be entitled to have reasonable access to the Mine to perform such drilling, testing and sampling they find reasonably necessary in order to confirm the contents undertake any of the Feasibility Study. The parties agree that all samples and other data generated in connection with the Feasibility Study and any technical report connected therewith shall belong to the GroupRestricted Actions.
9.4 Any activities undertaken by the Buyer in accordance with 4.2 Clause 9.3 4.1 shall be undertaken at the Buyer’s own risk, at its own cost and for its own benefit and the Buyer shallnot operate so as to restrict or prevent:
(a) notwithstanding any other provision matter undertaken at the written request of this Agreement, the Purchaser or with its prior written approval (such approval not have any authority to, and must not purport to, bind the Sellers to be unreasonably withheld or the Company to any obligationsdelayed);
(b) conduct all its activities any matter reasonably undertaken by any Group Company in accordance an emergency or disaster situation with the terms intention of minimising any adverse effect thereof; provided, however, that the Permits (including, without limitation, those relating Seller shall provide prompt written notice to mining practices, safety requirements and the environment) and in a good, safe and workmanlike manner and using good mining practicesPurchaser of any matter so undertaken;
(c) carry out all rehabilitation the completion or performance of any land disturbed obligations required to be undertaken pursuant to any Contract entered into by itany Group Company prior to the date of this Agreement;
(d) lodgeany act or conduct which any Group Company is required to take, or meet the full cost ofomit to take, any performance bonds that are required to be lodged as a result of, or in order to comply with, any applicable Law;
(e) the entering into in the ordinary course of its activities business of any Contract that is consistent with past practice (but not so as to breach paragraph (n) of Schedule 8);
(f) any scheduled increases in salaries or proposed activitieswages or, to the extent described in Section 4.2(f) of the Disclosure Letter, bonus payments occurring in the ordinary course of business consistent with past practice with respect to any category of employees of any member of the Group;
(g) any matters undertaken in order to comply with the requirements of any Governmental Authority;
(h) any matter contemplated in this Agreement or another Transaction Document; or
(i) any transaction forming part of the Pre Sale Reorganisation undertaken as described in the PWC Memo.
4.3 The Seller shall procure that the Pre Sale Reorganisation (other than those actions described in Clauses 20.1, 20.2 and 20.3 of this Agreement) is completed, including the transfer of the Sale Shares by Norit International N.V. to the Seller, prior to Completion.
4.4 For the calculation of Group EBITDA for the purpose of Clause 3.1(e):
(a) for the months of January and February 2011, the Group EBITDA shall be the Group EBITDA set out in the Management Accounts (as defined in paragraph 3.1 of Schedule 7) (prepared using IFRS) contained in folders 2.2.10.1.1 and 2.
2.10.2.1 of the Data Room;
(b) for each of the months of March and April 2011, the Company shall prepare and send to the Seller and the Purchaser by no later than the 20th day of the next following month management accounts for that month in the form of the Management Accounts which shall be prepared on a consistent basis as the January 2011/February 2011 monthly management accounts (using IFRS) and Group EBITDA shall, in the absence of manifest error, be the Group EBITDA as shown by those accounts provided always that should Completion be scheduled for a date when the April 2011 monthly management accounts have not been delivered to the Purchaser as set out above, the provisions of sub-clause (c) below shall apply as if the reference to May 2011 monthly management accounts was extended to cover the April 2011 and May 2011 monthly management accounts; and
(ec) comply for the month of May 2011, the Company shall by no later than 3 May 2011 produce and procure compliance send to the Purchaser and the Seller the Company’s best estimate of Group EBITDA for May 2011 approved by its agentsboard, advisors acting in good faith (but with no personal liability in the absence of fraud or wilfully approving a document known to be inaccurate); and employees Group EBIDTA shall be the aggregate of the amounts shown in the documents produced in accordance with all Applicable Laws, including environmental lawsClause 4.4(a) to 4.4(c). For the avoidance of doubt the management accounts prepared and to be prepared have the normal status of management accounts and no period end adjustments have been made.
9.5 The Buyer indemnifies and shall keep indemnified the Sellers and the Company at all times against all claims and losses which have accrued or which may accrue directly from the Buyer’s activities (and the activities 4.5 In respect of the Buyer’s agents, employees, officers and contractors) at the Mine and the exercise of its rights under Clause 9.3. Notwithstanding any other provision of Transaction contemplated by this Agreement, this Clause 9.5 survives termination the Parties shall comply with the Social and Economic Council Merger Regulation for the protection of this Agreement.
9.6 The Sellers shall procure that from the date of this Agreement until Completion such person as the Buyer may from time to time nominate shall be given the same notices and information as if he were a director and shareholder of the Company and that such person shall be invited and entitled to attend as an observer employees (but not as a director, shadow director, officer or shareholder) at all board, management and shareholder meetings.
9.7 The Sellers shall indemnify and shall keep indemnified the Buyer and the Buyer’s Group at all times following Completion against all claims and losses which accrue directly from any breach of Clause 9.1(d) (to the extent such losses are not compensated for in the Completion AccountsSER-Besluit Fusiegedragsregels 2000 ter bescherming xxx xx xxxxxxxx xxx xxxxxxxxxx).
Appears in 1 contract
CONDUCT OF BUSINESS BEFORE COMPLETION. 9.1 From the date of this Agreement until Completion, each Seller shall use all reasonable endeavours to:
(a) procure that each Group Company will carry on its business in the ordinary and usual course;
(b) procure that each Group Company shall comply 4.1 Except with the requirements of Schedule 4;
(c) not, and shall procure that each Group Company shall not, do, allow or procure, any act or omission which would render any of the Warranties untrue, inaccurate or misleading if repeated at Completion by reference to the circumstances then subsisting;
(d) in addition to complying with the requirements of Schedule 4 (and notwithstanding any conflict with those provisions), procure that:
(i) all income received by the Group is used to discharge liabilities of the Group;
(ii) no Group Company purchases any asset or takes any action which would increase its liabilities from the date of this Agreement in each case in excess of the aggregate amount of $5,000 in any calendar month without the prior written approval of the Buyer, provided always that this Clause 9.1(d)(ii) shall Purchaser to do otherwise (such approval not apply in relation to the purchase of any asset or increase of any liabilities undertaken or incurred in accordance with the terms of the Tribute Agreement and/or Mining Contract; and
(iii) the Group does not incur expenditure in excess of the cash received by the Group from the Odzi Consideration and pursuant to the Tribute Agreement and Mining Contract without the prior written approval of the Buyer;
(e) procure that the relevant Group Company shall, subject to the terms of the Tribute Agreement and the Mining Contract, maintain and protect the Group’s claims and licences in respect of the Mine; and
(f) procure that the relevant Group Company complies in all material respects with their respective obligations under each Permit and all Applicable Laws.
9.2 Each Seller undertakes to notify the Buyer in writing as soon as reasonably practicable after becoming aware of anything which constitutes or is reasonably likely to constitute a breach of the Sellers’ obligations under Clause 9.1 and to provide the Buyer all material details available to it in relation to such matter.
9.3 Each Seller shall use all reasonable endeavours to procure that, subject to the Buyer complying with its obligations under Clause 9.4, from the date of this Agreement until Completion:
(a) the Buyer and its advisers and representatives shall be given reasonable access, upon reasonable notice, to the premises and assets of the Company and to all books, records, accounts and documents controlled or used by the Company (including computer programmes) and shall be permitted to take copies of each of the foregoing;
(b) the directors and employees of the Company shall be instructed to give, as soon as reasonably practicable, all such information and explanations to the Buyer as the Buyer reasonably requests; and
(c) the Buyer and its technical advisers shall be entitled to have reasonable access to the Mine to perform such drilling, testing and sampling they find reasonably necessary in order to confirm the contents of the Feasibility Study. The parties agree that all samples and other data generated in connection with the Feasibility Study and any technical report connected therewith shall belong to the Group.
9.4 Any activities undertaken by the Buyer in accordance with Clause 9.3 shall be undertaken at the Buyer’s own risk, at its own cost and for its own benefit and the Buyer shall:
(a) notwithstanding any other provision of this Agreement, not have any authority to, and must not purport to, bind the Sellers or the Company to any obligations;
(b) conduct all its activities in accordance with the terms of the Permits (including, without limitation, those relating to mining practices, safety requirements and the environment) and in a good, safe and workmanlike manner and using good mining practices;
(c) carry out all rehabilitation of any land disturbed by it;
(d) lodge, or meet the full cost of, any performance bonds that are required to be lodged as a result of its activities unreasonably withheld or proposed activities; and
(e) comply and procure compliance by its agentsdelayed), advisors and employees with all Applicable Laws, including environmental laws.
9.5 The Buyer indemnifies and shall keep indemnified the Sellers and the Company at all times against all claims and losses which have accrued or which may accrue directly from the Buyer’s activities (and the activities of the Buyer’s agents, employees, officers and contractors) at the Mine and the exercise of its rights under Clause 9.3. Notwithstanding any other provision of this Agreement, this Clause 9.5 survives termination of this Agreement.
9.6 The Sellers Seller shall procure that from the date of this Agreement until the Completion Date:
(E) the Business shall be carried on in the usual and ordinary course substantially as conducted in the 12 months prior to the date of this Agreement and in accordance with all applicable laws in all material respects;
(F) the Company shall not undertake any of the acts listed in Part 2 (Pre-Completion restrictions) of Schedule 3 (Conduct Pending Completion);
(G) the Company shall comply with its obligations under the Business Purchase Agreement; and
(H) the Business undertakes the Ongoing Projects substantially as undertaken prior to the date of this Agreement and, where any such person Ongoing Project is subject to a deadline notified to the Seller prior to the date of this Agreement by the Environment Agency:
(i) if the notified deadline is before the Completion Date, so as to ensure that such Ongoing Project is completed prior to the notified deadline; and
(ii) if the notified deadline is after the Completion Date, so as to ensure that, as at the Completion Date, such Ongoing Project has been undertaken to such an extent so as to allow the Company to complete that Ongoing Project prior to the notified deadline.
4.2 Pending Completion, subject to its confidentiality obligations and to the extent permitted by law, the Seller shall: #PageNum#
(A) provide to the Purchaser or its agents (as the Buyer may from time Purchaser shall direct), subject to time nominate shall be reasonable prior notice being given to the same notices Seller, such information, including financial information, regarding the Company and/or the Business as the Purchaser reasonably requires;
(B) give the Purchaser and information as if he were a director its agents, subject to reasonable prior notice being given to the Seller, reasonable access during Working Hours to the Company Records, to relevant employees and shareholder representatives of the Company and that such person shall be invited to the Business Property;
(C) co-operate with the Purchaser and entitled its agents to attend as an observer enable the Purchaser to develop plans for, and agree its integration of the Company with, the Purchaser's Group;
(but not as a director, shadow director, officer D) consult with the Purchaser or shareholder) at all board, management and shareholder meetings.
9.7 The Sellers shall indemnify and shall keep indemnified its agents in respect of any exercise by the Buyer and Company of any of its rights under the Buyer’s Group at all times following Completion against all claims and losses which accrue directly from any breach of Clause 9.1(d) (Business Purchase Agreement to the extent that any such losses exercise would be material in the context of the Business; and
(E) procure that the Company delivers the Measures Letter to the Seller in compliance with the Regulations.
4.3 Sub-clause 4.1 shall not operate so as to restrict or prevent:
(A) any matter contemplated by the Transaction Documents or any action taken by the Seller and/or the Company pursuant to the Transaction Documents;
(B) any matter reasonably undertaken by the Seller in relation to the Company or the Business in an emergency or disaster situation with the intention of minimising any adverse effect thereof (and of which the Purchaser will be promptly notified);
(C) the completion or performance of any obligations undertaken pursuant to any contract or arrangement which is a Material Contract Disclosed in the Draft Business Purchase Agreement Disclosure Letter;
(D) the completion or performance of any obligations undertaken pursuant to any contract or arrangement which is not a Material Contract where such completion or performance is in the ordinary course of the Business;
(E) any action or omission required of the Company or in respect of the Business by any applicable law or regulation or any Tax Authority provided that the Seller shall promptly inform the Purchaser of the relevant matter and circumstances where such action or omission is material;
(F) any increase in emoluments of any category of the employees of the Company or of the Business where such increase is made in accordance with the Company’s obligations under the contracts of employment of such employees or the normal practice of the Company or the Business or in accordance with any applicable collective bargaining agreement entered into in relation to the Business;
(G) any promotion in relation to the Business which: #PageNum#
(i) would reasonably be expected to result in a cost to the Business of less than £250,000; or
(ii) has been disclosed to the Purchaser prior to the date of this Agreement;
(H) any Permitted Transaction;
(I) any amendment to any Excluded Contract (as defined in the Business Purchase Agreement) to ensure that any assets, rights or obligations not intended to be transferred under the Transaction Documents are not compensated for in transferred; or
(J) any matter undertaken at the Completion Accounts)written request or with the consent of the Purchaser.
Appears in 1 contract
Samples: Sale and Purchase Agreement (Hain Celestial Group Inc)
CONDUCT OF BUSINESS BEFORE COMPLETION. 9.1 From 4.1 The Seller shall procure that, between the date of this Agreement until and Completion, each Seller RTM Group Company shall, and shall use all reasonable endeavours to:
(a) to procure that that, between the date of this Agreement and Completion, each AC Group Company will shall, carry on its business in the ordinary and usual course;
(b) procure that each Group Company shall comply with course in the requirements of Schedule 4;
(c) not, and shall procure that each Group Company shall not, do, allow or procure, any act or omission which would render any of same manner as carried on during the Warranties untrue, inaccurate or misleading if repeated at Completion by reference to the circumstances then subsisting;
(d) in addition to complying with the requirements of Schedule 4 (and notwithstanding any conflict with those provisions), procure that:
(i) all income received by the Group is used to discharge liabilities of the Group;
(ii) no Group Company purchases any asset or takes any action which would increase its liabilities from six months preceding the date of this Agreement in each case in excess of the aggregate amount of $5,000 in any calendar month without the prior written approval of the Buyer, provided always that this Clause 9.1(d)(ii) shall not apply in relation Agreement.
4.2 Without prejudice to the purchase generality of any asset or increase of any liabilities undertaken or incurred in accordance with sub-clause 4.1, the terms of the Tribute Agreement and/or Mining Contract; and
(iii) the Group does not incur expenditure in excess of the cash received by the Group from the Odzi Consideration and pursuant to the Tribute Agreement and Mining Contract without the prior written approval of the Buyer;
(e) Seller shall procure that the relevant no RTM Group Company shallwill, subject to the terms of the Tribute Agreement and the Mining Contract, maintain and protect the Group’s claims and licences in respect of the Mine; and
(f) procure that the relevant Group Company complies in all material respects with their respective obligations under each Permit and all Applicable Laws.
9.2 Each Seller undertakes to notify the Buyer in writing as soon as reasonably practicable after becoming aware of anything which constitutes or is reasonably likely to constitute a breach of the Sellers’ obligations under Clause 9.1 and to provide the Buyer all material details available to it in relation to such matter.
9.3 Each Seller shall use all reasonable endeavours to procure thatthat no AC Group Company will, subject between the date of this Agreement and Completion, undertake any of the acts or matters listed in Schedule 4 (Conduct of Business before Completion) without the consent in writing of the Purchaser (not to be unreasonably withheld or delayed), save to the Buyer complying with its obligations extent contemplated under Clause 9.4the Share Purchase Documents.
4.3 Subject to applicable law, as from the date of this Agreement until Completion:
Agreement, the Seller shall procure (ain respect of the RTM Group Companies), and shall use all reasonable endeavours to procure (in respect of the AC Group Companies) the Buyer provision of reasonable access in favour of the Purchaser and its advisers and representatives shall be given reasonable access, upon reasonable notice, any persons authorised by it to the premises and assets all the books and records and title deeds of such Group Companies and the Company and to all books, records, accounts and documents controlled or used directors appointed by the Company (including computer programmes) and shall be permitted to take copies of each of the foregoing;
(b) the directors Seller and/or Kofu and employees of the RTM Group Companies and each RTM Group Company shall will be instructed to give, as soon as reasonably practicable, give promptly all such information and explanations to the Buyer Purchaser or any such persons as they may request, provided that the Buyer reasonably requests; and
(c) the Buyer Purchaser and its technical advisers such persons authorised by it shall be entitled to have reasonable access to the Mine to perform such drilling, testing and sampling they find reasonably necessary bound by clause 16 (Confidentiality) in order to confirm the contents of the Feasibility Study. The parties agree that all samples and other data generated in connection with the Feasibility Study and any technical report connected therewith shall belong to the Group.
9.4 Any activities undertaken by the Buyer in accordance with Clause 9.3 shall be undertaken at the Buyer’s own risk, at its own cost and for its own benefit and the Buyer shall:
(a) notwithstanding any other provision of this Agreement, not have any authority to, and must not purport to, bind the Sellers or the Company relation to any obligations;
(b) conduct all its activities in accordance with the terms of the Permits (including, without limitation, those relating information received or obtained pursuant to mining practices, safety requirements and the environment) and in a good, safe and workmanlike manner and using good mining practices;
(c) carry out all rehabilitation of any land disturbed by it;
(d) lodge, or meet the full cost of, any performance bonds that are required to be lodged as a result of its activities or proposed activities; and
(e) comply and procure compliance by its agents, advisors and employees with all Applicable Laws, including environmental lawsthis sub-clause 4.3.
9.5 The Buyer indemnifies and shall keep indemnified the Sellers and the Company at all times against all claims and losses which have accrued or which may accrue directly from the Buyer’s activities (and the activities of the Buyer’s agents, employees, officers and contractors) at the Mine and the exercise of its rights under Clause 9.3. Notwithstanding any other provision of this Agreement, this Clause 9.5 survives termination of this Agreement.
9.6 The Sellers shall procure that from the date of this Agreement until Completion such person as the Buyer may from time to time nominate shall be given the same notices and information as if he were a director and shareholder of the Company and that such person shall be invited and entitled to attend as an observer (but not as a director, shadow director, officer or shareholder) at all board, management and shareholder meetings.
9.7 The Sellers shall indemnify and shall keep indemnified the Buyer and the Buyer’s Group at all times following Completion against all claims and losses which accrue directly from any breach of Clause 9.1(d) (to the extent such losses are not compensated for in the Completion Accounts).
Appears in 1 contract
Samples: Share Purchase Agreement (Alibaba Group Holding LTD)
CONDUCT OF BUSINESS BEFORE COMPLETION. 9.1 From 4.1 Subject to Clause 4.2, the date of this Agreement until Completion, each Seller shall use all reasonable endeavours to:
(a) to the greatest extent legally possible exercise and have exercised its influence as shareholder of each of the Companies and procure and have procured that the Companies, including each Group Company will carry on its business in of their boards of directors, the ordinary and usual course;
(b) management, employees etc. shall procure that each Group Company shall comply with the requirements of Schedule 4;
(c) not, and shall procure have procured that each Group Company shall not, do, allow or procure, any act or omission which would render any of during the Warranties untrue, inaccurate or misleading if repeated at Completion by reference to the circumstances then subsisting;
(d) in addition to complying with the requirements of Schedule 4 (and notwithstanding any conflict with those provisions), procure that:
(i) all income received by the Group is used to discharge liabilities of the Group;
(ii) no Group Company purchases any asset or takes any action which would increase its liabilities period from the date of this Agreement to Completion:
(a) the Group Companies shall continue and shall have continued to carry on business in each case the normal course in excess of all material aspects and in compliance with all laws and regulations applicable to them and in the aggregate amount of $5,000 in any calendar month without same manner as their businesses have been carried on before the prior written approval of the Buyer, provided always that this Clause 9.1(d)(ii) shall not apply in relation to the purchase of any asset or increase of any liabilities undertaken or incurred in accordance with the terms of the Tribute Agreement and/or Mining ContractLocked Box Date; and
(iiib) the no Group does Company shall undertake and shall not incur expenditure in excess have undertaken any of the cash received by Restricted Actions.
4.2 Clause 4.1 shall not operate so as to restrict or prevent:
(a) any matter undertaken at the Group from written request of the Odzi Consideration and pursuant to the Tribute Agreement and Mining Contract without the Purchaser or with its prior written approval (such approval not to be unreasonably withheld or delayed);
(b) any matter reasonably undertaken by any Group Company in an emergency or disaster situation with the intention of minimising any adverse effect thereof on any Group Company;
(c) the Buyercompletion or performance of any obligations undertaken pursuant to any contract or arrangement:
(i) entered into by any Group Company that has been disclosed in the Data Room; or
(ii) entered into by any Group Company prior to the Locked Box Date, provided such contract or arrangement was entered into in the ordinary course of business, and does not contain any onerous terms and/or conditions;
(d) any act or conduct which any Group Company is required to take, or omit to take, as a result of, or in order to comply with, any law or regulation;
(e) procure that any matters undertaken in order to comply with the relevant Group Company shall, subject to the terms requirements of the Tribute Agreement and the Mining Contract, maintain and protect the Group’s claims and licences in respect of the Mine; andany Governmental Authority;
(f) procure acts or arrangements necessary to implement the steps and arrangements set out in Schedule 9 to this Agreement, including entering into any ancillary documents necessary to effect those arrangements; or
(g) any action or omission that is required in order to implement the relevant Group Company complies transactions contemplated by this Agreement or another Transaction Document. The Seller shall promptly inform the Purchaser if the circumstances mentioned in all material respects Clauses 4.2 (b) and (e) occurs including reasonable information/details of the circumstances. The Seller acknowledges that any action taken in accordance with their respective obligations Clauses 4.2 (b) to (g) (inclusive) shall not release it from liability under each Permit and all Applicable Lawsthe Agreement (save for Clause 4.1), including the Warranties as set out in this Agreement.
9.2 Each 4.3 The Seller undertakes to notify shall in the Buyer in writing as period from signing of the Agreement until Completion, no later than the 15th of each month provide the Purchaser with monthly management accounts prepared on a consistent basis with which the Interim Accounts have been prepared.
4.4 As soon as reasonably practicable after becoming aware of anything which constitutes or is reasonably likely to constitute a breach following signing of the Sellers’ obligations under Clause 9.1 and to provide Agreement, the Buyer all material details available to it in relation to such matter.
9.3 Each Seller shall use all reasonable endeavours to procure that, subject to the Buyer complying with its obligations under Clause 9.4, from the date of this Agreement until Completion:
: (ai) the Buyer Bank of Scotland PLC in its capacity as security trustee under the Senior Facilities Agreement issues and its advisers and representatives shall be given reasonable access, upon reasonable notice, to registers with the premises and assets Danish Registration Court (in Danish: “Tinglysningsretten”) relevant powers of the Company and to all books, records, accounts and documents controlled or used by the Company (including computer programmes) and shall be permitted to take copies attorney in favour of each of the foregoing;
(b) the directors and employees of the Company shall be instructed to give, as soon as reasonably practicable, all such information and explanations to the Buyer as the Buyer reasonably requests; and
(c) the Buyer and its technical advisers shall be entitled to have reasonable access to the Mine to perform such drilling, testing and sampling they find reasonably necessary their Danish counsel in order to confirm facilitate the contents deregistration at Completion of the Feasibility Study. The parties agree that all samples negative pledge statements registered in their favour; and other data generated in connection with the Feasibility Study and any technical report connected therewith shall belong to the Group.
9.4 Any activities undertaken by the Buyer in accordance with Clause 9.3 shall be undertaken at the Buyer’s own risk, at its own cost and for its own benefit and the Buyer shall:
(a) notwithstanding any other provision of this Agreement, not have any authority to, and must not purport to, bind the Sellers or the Company to any obligations;
(b) conduct all its activities in accordance with the terms of the Permits (including, without limitation, those relating to mining practices, safety requirements and the environment) and in a good, safe and workmanlike manner and using good mining practices;
(c) carry out all rehabilitation of any land disturbed by it;
(d) lodge, or meet the full cost of, any performance bonds that are required to be lodged as a result of its activities or proposed activities; and
(e) comply and procure compliance by its agents, advisors and employees with all Applicable Laws, including environmental laws.
9.5 The Buyer indemnifies and shall keep indemnified the Sellers and the Company at all times against all claims and losses which have accrued or which may accrue directly from the Buyer’s activities (and the activities of the Buyer’s agents, employees, officers and contractors) at the Mine and the exercise of its rights under Clause 9.3. Notwithstanding any other provision of this Agreement, this Clause 9.5 survives termination of this Agreement.
9.6 The Sellers shall procure that from the date of this Agreement until Completion such person as the Buyer may from time to time nominate shall be given the same notices and information as if he were a director and shareholder of the Company and that such person shall be invited and entitled to attend as an observer (but not as a director, shadow director, officer or shareholder) at all board, management and shareholder meetings.
9.7 The Sellers shall indemnify and shall keep indemnified the Buyer and the Buyer’s Group at all times following Completion against all claims and losses which accrue directly from any breach of Clause 9.1(d) (to the extent such losses are not compensated for in the Completion Accountsii).
Appears in 1 contract
Samples: Sale and Purchase Agreement (Altra Industrial Motion Corp.)
CONDUCT OF BUSINESS BEFORE COMPLETION. 9.1 From (A) Between the date of this Agreement until Completionand the Completion Date, each the Seller shall use all reasonable endeavours to:
(a) procure that each Group Company will carry on its business in the ordinary and usual course;
(b) procure that each Group Company shall comply with the requirements of Schedule 4;
(c) not, and or shall procure that each Group Company shall not, do, allow or procure, any act or omission which would render any member of the Warranties untrue, inaccurate or misleading if repeated at Completion by reference to the circumstances then subsisting;
(d) in addition to complying with the requirements of Schedule 4 (and notwithstanding any conflict with those provisions), procure that:Seller's Group shall):
(i) all income received by carry on the Group is used Montana Business in the ordinary course of trading substantially in the same manner in which the same has been carried on prior to discharge liabilities of the Group;
(ii) no Group Company purchases any asset or takes any action which would increase its liabilities from the date of this Agreement in each case accordance with all applicable legal requirements of a material nature;
(ii) not enter into any new Material Contract or make any material variation to any existing Material Contract;
(iii) not (other than in consultation with the Purchaser) employ or dismiss any employee or employees of the Business whose remuneration exceeds (pound)50,000 (in aggregate) other than (in relation to dismissal) as a result of the conduct of that person;
(iv) not create, extend, grant, issue or redeem or agree to create, grant or issue any Encumbrance over the Business or Business Assets (other than Permitted Encumbrances arising in the ordinary course of business);
(v) other than in respect of any budgeted capital expenditure disclosed to the Purchaser prior to the date of this Agreement, not, in respect of the Business agree to make capital expenditure or commitments requiring capital expenditure in excess of the aggregate amount (pound)100,000 (in aggregate);
(vi) not alter or agree to alter any terms of $5,000 in any calendar month without the prior written approval employment or benefits affecting all of the BuyerBusiness Employees or alter any material working practices of the Business or collective agreement relating to such material working practices;
(vii) not, provided always that this Clause 9.1(d)(ii) shall not apply in relation to any Business Employee, amend or discontinue (wholly or partly) any pension scheme relating to the purchase of Business Employees or communicate to any asset Business Employee a plan, proposal or increase of any liabilities undertaken intention so to amend or incurred in accordance with discontinue (wholly or partly) that scheme (unless and to the terms extent that such amendment is required by law);
(viii) on reasonable notice, allow the Purchaser and its officers and representatives reasonable access to the Business Properties at pre-arranged times convenient to both the Seller and the Purchaser and allow the Purchaser and its officers and representatives reasonable access to Senior Employees at pre-arranged times having regard to such persons' ongoing duties as employees of the Tribute Agreement and/or Mining ContractSeller; and
(iiiix) continue to maintain all existing insurance policies concerning the Group does Business and not incur expenditure in excess of the cash received by the Group from the Odzi Consideration and pursuant to the Tribute Agreement and Mining Contract without the prior written approval of the Buyer;
(e) procure that the relevant Group Company shall, subject to the terms of the Tribute Agreement and the Mining Contract, maintain and protect the Group’s claims and licences in respect of the Mine; and
(f) procure that the relevant Group Company complies in all material respects with their respective obligations under each Permit and all Applicable Laws.
9.2 Each Seller undertakes to notify the Buyer in writing as soon as reasonably practicable after becoming aware of knowingly do anything which constitutes or is reasonably likely would cause any such insurance policies to constitute a breach of the Sellers’ obligations under Clause 9.1 and to provide the Buyer all material details available to it become void: in relation to such matter.
9.3 Each Seller shall use all reasonable endeavours to procure that, subject to the Buyer complying with its obligations under Clause 9.4, from the date of this Agreement until Completioneach case save:
(a) with the Buyer and its advisers and representatives shall be given reasonable access, upon reasonable notice, to the premises and assets prior written consent of the Company and to all books, records, accounts and documents controlled or used by the Company (including computer programmes) and shall be permitted to take copies of each of the foregoingPurchaser;
(b) the directors and employees of the Company shall be instructed to giveas required by law, as soon as reasonably practicable, all such information and explanations to the Buyer as the Buyer reasonably requestsregulation or any relevant Tax Authority; andor
(c) as required or permitted pursuant to any of the Buyer and its technical advisers other provisions of this Agreement or any of the other Transaction Documents.
(B) The Purchaser shall be entitled have the right to have reasonable access elect by notice in writing to the Mine Seller not to perform such drilling, testing and sampling they find reasonably necessary in order to confirm complete the contents acquisition of the Feasibility Study. The parties agree that all samples Business and the Business Assets in the event of there having occurred in the period pending Completion any physical destruction or damage to the Business Properties and other data generated Business Assets located in connection with the Feasibility Study Business Properties which causes a loss of value by more than 50% of the total aggregate value of the Business Properties and any technical report connected therewith shall belong to other Business Assets located at the GroupBusiness Properties.
9.4 Any activities undertaken by (C) The Seller shall use its reasonable endeavours to procure the Buyer in accordance with Clause 9.3 shall be undertaken at finalisation and execution of the Buyer’s own risk, at its own cost and for its own benefit Settlement Agreement and the Buyer shall:
(a) notwithstanding any other provision APV Purchase Agreement prior to 31 January 2004 and, in respect of this Agreement, not have any authority to, and must not purport to, bind the Sellers or the Company to any obligations;
(b) conduct all its activities in accordance with APV Purchase Agreement shall procure that the terms of that agreement (as finally executed) provide that no cash consideration shall be payable by the Permits relevant contract counterparty to APV (including, without limitation, those relating to mining practices, safety requirements UK) Limited for the supply and installation of the relevant machinery which is the subject matter thereof. If the Settlement Agreement and the environment) and in a goodAPV Purchase Agreement have not been executed by 31 January 2004, safe and workmanlike manner and using good mining practices;
(c) carry out all rehabilitation of any land disturbed the Seller shall if requested by it;
(d) lodge, or meet the full cost of, any performance bonds that are required to be lodged as a result of its activities or proposed activities; and
(e) comply and procure compliance by its agents, advisors and employees with all Applicable Laws, including environmental laws.
9.5 The Buyer indemnifies and shall keep indemnified the Sellers and the Company at all times against all claims and losses which have accrued or which may accrue directly from the Buyer’s activities (and the activities of the Buyer’s agents, employees, officers and contractors) at the Mine and the exercise Purchaser assign such of its rights under Clause 9.3. Notwithstanding any other provision of this Agreement, this Clause 9.5 survives termination of this Agreement.
9.6 The Sellers shall procure that from the date of this Agreement until Completion such person as the Buyer may from time to time nominate shall be given the same notices and information as if he were a director and shareholder against APV (UK) Limited for failure of the Company and that such person shall be invited and entitled APV1 plant, as described in paragraph 12(A) of the Disclosure Letter, as relate to attend as an observer (but not as a director, shadow director, officer or shareholder) at all board, management and shareholder meetings.
9.7 The Sellers shall indemnify the cost of obtaining plant which would perform to the agreed specifications of APV1 and shall keep indemnified retain such of its rights against APV (UK) Limited for failure of the Buyer and the Buyer’s Group at all times following Completion against all claims and losses which accrue directly from any breach of Clause 9.1(d) (APV1 plant as relate to the extent such losses are not compensated for associated with the product recall described in paragraph 12(A) of the Completion Accounts)Disclosure Letter.
Appears in 1 contract
Samples: Business Sale and Purchase Agreement (Premier Foods PLC)
CONDUCT OF BUSINESS BEFORE COMPLETION. 9.1 From 4.1 Between the date of this Agreement until Completion, each Seller shall use all reasonable endeavours toagreement and the earlier of the Completion Date or this agreement being terminated in accordance with its terms:
(a) procure that each Group Company will carry on its business in the ordinary and usual course;
Seller (bi) procure that each Group Company shall comply (solely with respect to the requirements of Schedule 4;
(c) notReinsured Business), and shall procure that each Group the Company and, solely with respect to the Reinsured Business, the Ceding Companies and Life shall, operate and carry on the Reinsured Business in the ordinary course of business, and (ii) shall not (solely with respect to the Reinsured Business), and shall procure that the Company and, solely with respect to the Reinsured Business, the Ceding Companies and Life shall not, doundertake any of the acts or matters listed in Schedule 3; in either case, allow except (A) with the prior written consent of the Purchaser (which consent shall not be unreasonably conditioned, withheld or procuredelayed), (B) if and to the extent the Seller determines, acting reasonably, that such action is required by applicable Law (and in respect of which the Purchaser shall be, to the extent permitted by applicable Law, notified and reasonably consulted as far in advance as is practicable in the circumstances), (C) if permitted or required by this agreement or any of the Transaction Documents, or (D) as set out in the Disclosure Letter; and
(b) the Seller shall notify the Purchaser of any matter, circumstance, act or omission which would render any of the Warranties untrue, inaccurate is or misleading if repeated at Completion by reference may reasonably be expected to the circumstances then subsisting;
(d) in addition to complying with the requirements of Schedule 4 (and notwithstanding any conflict with those provisions), procure that:
(i) all income received by the Group is used to discharge liabilities of the Group;
(ii) no Group Company purchases any asset or takes any action which would increase its liabilities from the date be a breach of this Agreement in each case in excess of the aggregate amount of $5,000 in any calendar month without the prior written approval of the Buyer, provided always that this Clause 9.1(d)(ii) shall not apply in relation to the purchase of any asset clause 4 or increase of any liabilities undertaken or incurred in accordance with the terms of the Tribute Agreement and/or Mining Contract; and
(iii) the Group does not incur expenditure in excess of the cash received by the Group from the Odzi Consideration and pursuant to the Tribute Agreement and Mining Contract without the prior written approval of the Buyer;
(e) procure that the relevant Group Company shall, subject to the terms of the Tribute Agreement and the Mining Contract, maintain and protect the Group’s claims and licences in respect of the Mine; and
(f) procure that the relevant Group Company complies in all material respects with their respective obligations under each Permit and all Applicable Laws.
9.2 Each Seller undertakes to notify the Buyer in writing as soon as reasonably practicable after becoming the Seller becomes aware of anything which constitutes any such matter, circumstance, act or is reasonably likely omission; provided, that the failure of the Seller to provide any notice contemplated by this clause 4.1 shall not (x) constitute a failure to satisfy any condition set out in Schedule 1, (y) otherwise relieve any person from its obligation to consummate the transactions contemplated by the Transaction Documents or (z) in and of itself provide the basis for the Purchaser or any other party to seek damages, or increase the level of damages recoverable, in respect of any breach of the Sellers’ obligations under Clause 9.1 and to provide the Buyer all material details available to it in relation to such mattercovenant or warranty.
9.3 Each Seller 4.2 Clause 4.1 shall use all reasonable endeavours not operate so as to procure that, subject to the Buyer complying with its obligations under Clause 9.4, from the date of this Agreement until Completionrestrict or prevent:
(a) any matter reasonably undertaken by the Buyer and its advisers and representatives shall be given reasonable access, upon reasonable notice, Seller (solely with respect to the premises and assets of Reinsured Business), the Company and to all books, records, accounts and documents controlled or used by the any Ceding Company (including computer programmessolely with respect to the Reinsured Business) in an emergency or disaster situation with the intention of minimising any adverse effect thereof (and shall of which the Purchaser will be permitted to take copies of each of the foregoingpromptly notified);
(b) the directors and employees completion or performance of any obligations required to be undertaken pursuant to any agreement entered into by the Seller (solely with respect to the Reinsured Business), the Company shall or any Ceding Company (solely with respect to the Reinsured Business) prior to the date of this agreement (and, in respect of any such obligations which would prevent or have prevented compliance with clause 4.1, the Purchaser will be instructed to give, as soon as promptly notified where reasonably practicable, all such information and explanations to the Buyer as the Buyer reasonably requests; and
(c) the Buyer and its technical advisers shall be entitled to have reasonable access to the Mine to perform such drilling, testing and sampling they find reasonably necessary in order to confirm the contents of the Feasibility Study. The parties agree that all samples and other data generated in connection with the Feasibility Study and any technical report connected therewith shall belong to the Group.
9.4 Any activities undertaken by the Buyer in accordance with Clause 9.3 shall be undertaken at the Buyer’s own risk, at its own cost and for its own benefit and the Buyer shall:
(a) notwithstanding any other provision of this Agreement, not have any authority to, and must not purport to, bind the Sellers or the Company to any obligations;
(b) conduct all its activities in accordance with the terms of the Permits (including, without limitation, those relating to mining practices, safety requirements and the environment) and in a good, safe and workmanlike manner and using good mining practices);
(c) carry out all rehabilitation any action necessary (in the reasonable belief of the Seller or the relevant Retained Group Member) in order to comply with any requirement of applicable Law (and in respect of any land disturbed by itsuch matter the Purchaser shall be consulted as far in advance as is practicable in the circumstances);
(d) lodge, any matter expressly provided for contemplated in this agreement or meet the full cost of, other Transaction Documents or reasonably necessary to give effect to any performance bonds that are required to of them (and in respect of any such matter the Purchaser shall be lodged consulted as a result of its activities or proposed activitiesfar in advance as is practicable in the circumstances); andor
(e) comply and procure compliance by its agents, advisors and employees with all Applicable Laws, including environmental lawsany matter undertaken at the express written request of the Purchaser.
9.5 The Buyer indemnifies 4.3 Subject to applicable legal and shall keep indemnified the Sellers and the Company at all times against all claims and losses which have accrued or which may accrue directly from the Buyer’s activities (and the activities of the Buyer’s agentsregulatory requirements, employees, officers and contractors) at the Mine and the exercise of its rights under Clause 9.3. Notwithstanding any other provision of this Agreement, this Clause 9.5 survives termination of this Agreement.
9.6 The Sellers shall procure that from between the date of this Agreement until agreement and Completion such person as and upon reasonable notice being given by the Buyer Purchaser, the Seller shall, and shall procure that the Company and the Ceding Companies (solely with respect to the Reinsured Business) shall, consult with the Purchaser on a reasonably regular basis (and the Seller shall procure that the Company and the Ceding Companies (solely with respect to the Reinsured Business) shall, (subject to any obligations they may from time have under existing agreements) allow the Purchaser and its representatives reasonable access during Working Hours to time nominate shall be given the same notices and information as if he were a director and shareholder senior executives of the Company and that such person shall be invited and entitled to attend as an observer (but not as a director, shadow director, officer or shareholder) at all board, management and shareholder meetings.
9.7 The Sellers shall indemnify and shall keep indemnified the Buyer Ceding Companies in respect of the Reinsured Business and the Buyer’s Group at all times following Completion against all claims books and losses which accrue directly from any breach records of Clause 9.1(d) (the Ceding Companies relating to the extent Reinsured Business and such losses are not compensated for other information reasonably requested by the Purchaser as shall allow them to make a reasonably detailed assessment of the conduct and operation of the Reinsured Business; provided that the Seller and its Affiliates may withhold any document (or portions thereof) or information (A) that is subject to the terms of a non-disclosure agreement with a third party in effect on the date of this agreement or (B) that constitutes privileged attorney-client communications or attorney work product and the transfer of which, or the provision of access to which, as reasonably determined by such party’s counsel, constitutes a waiver of any such privilege; provided, further, that with respect to clauses (A) or (B)
4.4 Between the date of this agreement and the earlier of the Completion Accounts)Date or this agreement being terminated in accordance with its terms, the Purchaser shall not amend, modify, supplement, terminate or waive any provision of the Escrow Agreement, enter into any side agreement relating thereto, or take any other action that would result in (i) any Investor that is a party to the Escrow Agreement having any right: (x) to the return of funds delivered from the escrow fund governed by the Escrow Agreement, the Purchaser or any Affiliate of the Purchaser or (y) not to fully discharge its obligations thereunder or (ii) any person having the right to, directly or indirectly, delay or prohibit the distribution of funds from the escrow fund governed by the Escrow Agreement.
Appears in 1 contract
Samples: Sale and Purchase Agreement
CONDUCT OF BUSINESS BEFORE COMPLETION. 9.1 From 4.1 The Seller shall procure that, between the date of this Agreement until and Completion, each Seller RTM Group Company shall, and shall use all reasonable endeavours to:
(a) to procure that that, between the date of this Agreement and Completion, each AC Group Company will shall, carry on its business in the ordinary and usual course;
(b) procure that each Group Company shall comply with course in the requirements of Schedule 4;
(c) not, and shall procure that each Group Company shall not, do, allow or procure, any act or omission which would render any of same manner as carried on during the Warranties untrue, inaccurate or misleading if repeated at Completion by reference to the circumstances then subsisting;
(d) in addition to complying with the requirements of Schedule 4 (and notwithstanding any conflict with those provisions), procure that:
(i) all income received by the Group is used to discharge liabilities of the Group;
(ii) no Group Company purchases any asset or takes any action which would increase its liabilities from six months preceding the date of this Agreement in each case in excess of the aggregate amount of $5,000 in any calendar month without the prior written approval of the Buyer, provided always that this Clause 9.1(d)(ii) shall not apply in relation Agreement.
4.2 Without prejudice to the purchase generality of any asset or increase of any liabilities undertaken or incurred in accordance with sub-clause 4.1, the terms of the Tribute Agreement and/or Mining Contract; and
(iii) the Group does not incur expenditure in excess of the cash received by the Group from the Odzi Consideration and pursuant to the Tribute Agreement and Mining Contract without the prior written approval of the Buyer;
(e) Seller shall procure that the relevant no RTM Group Company shallwill, subject to the terms of the Tribute Agreement and the Mining Contract, maintain and protect the Group’s claims and licences in respect of the Mine; and
(f) procure that the relevant Group Company complies in all material respects with their respective obligations under each Permit and all Applicable Laws.
9.2 Each Seller undertakes to notify the Buyer in writing as soon as reasonably practicable after becoming aware of anything which constitutes or is reasonably likely to constitute a breach of the Sellers’ obligations under Clause 9.1 and to provide the Buyer all material details available to it in relation to such matter.
9.3 Each Seller shall use all reasonable endeavours to procure thatthat no AC Group Company will, subject between the date of this Agreement and Completion, undertake any of the acts or matters listed in Schedule 4 (Conduct of Business before Completion) without the consent in writing of the Purchaser (not to be unreasonably withheld or delayed), save to the Buyer complying with its obligations extent contemplated under Clause 9.4the Share Purchase Documents.
4.3 Subject to applicable law, as from the date of this Agreement until Completion:
Agreement, the Seller shall procure (ain respect of the RTM Group Companies), and shall use all reasonable endeavours to procure (in respect of the AC Group Companies) the Buyer provision of reasonable access in favour of the Purchaser and its advisers and representatives shall be given reasonable access, upon reasonable notice, any persons authorised by it to the premises and assets all the books and records and title deeds of such Group Companies and the Company and to all books, records, accounts and documents controlled or used directors appointed by the Company (including computer programmes) and shall be permitted to take copies of each of the foregoing;
(b) the directors Seller and/or CGC and employees of the RTM Group Companies and each RTM Group Company shall will be instructed to give, as soon as reasonably practicable, give promptly all such information and explanations to the Buyer Purchaser or any such persons as they may request, provided that the Buyer reasonably requests; and
(c) the Buyer Purchaser and its technical advisers such persons authorised by it shall be entitled to have reasonable access to the Mine to perform such drilling, testing and sampling they find reasonably necessary bound by clause 16 (Confidentiality) in order to confirm the contents of the Feasibility Study. The parties agree that all samples and other data generated in connection with the Feasibility Study and any technical report connected therewith shall belong to the Group.
9.4 Any activities undertaken by the Buyer in accordance with Clause 9.3 shall be undertaken at the Buyer’s own risk, at its own cost and for its own benefit and the Buyer shall:
(a) notwithstanding any other provision of this Agreement, not have any authority to, and must not purport to, bind the Sellers or the Company relation to any obligations;
(b) conduct all its activities in accordance with the terms of the Permits (including, without limitation, those relating information received or obtained pursuant to mining practices, safety requirements and the environment) and in a good, safe and workmanlike manner and using good mining practices;
(c) carry out all rehabilitation of any land disturbed by it;
(d) lodge, or meet the full cost of, any performance bonds that are required to be lodged as a result of its activities or proposed activities; and
(e) comply and procure compliance by its agents, advisors and employees with all Applicable Laws, including environmental lawsthis sub-clause 4.3.
9.5 The Buyer indemnifies and shall keep indemnified the Sellers and the Company at all times against all claims and losses which have accrued or which may accrue directly from the Buyer’s activities (and the activities of the Buyer’s agents, employees, officers and contractors) at the Mine and the exercise of its rights under Clause 9.3. Notwithstanding any other provision of this Agreement, this Clause 9.5 survives termination of this Agreement.
9.6 The Sellers shall procure that from the date of this Agreement until Completion such person as the Buyer may from time to time nominate shall be given the same notices and information as if he were a director and shareholder of the Company and that such person shall be invited and entitled to attend as an observer (but not as a director, shadow director, officer or shareholder) at all board, management and shareholder meetings.
9.7 The Sellers shall indemnify and shall keep indemnified the Buyer and the Buyer’s Group at all times following Completion against all claims and losses which accrue directly from any breach of Clause 9.1(d) (to the extent such losses are not compensated for in the Completion Accounts).
Appears in 1 contract
Samples: Share Purchase Agreement (Alibaba Group Holding LTD)
