Common use of CONDUCT OF BUSINESS BEFORE COMPLETION Clause in Contracts

CONDUCT OF BUSINESS BEFORE COMPLETION. 5.1 Subject to applicable law and to sub-clause 5.2, each Seller shall procure that, between the date of the Signing Protocol and Completion, no member of its Target Group will undertake, and each Seller warrants that no member of its Target Group has undertaken since the date of the Signing Protocol, any act which is outside the ordinary course of the business of such Target Group member as carried on at the date of the Signing Protocol without the prior written consent of the other Seller (such consent not to be unreasonably withheld or delayed), which consent states that it is being given for the purposes of this sub-clause 5. 1. In particular, each Seller shall procure that no member of its Target Group will undertake, and each Seller warrants that no member of its Target Group has undertaken since the date of the Signing Protocol, any of the acts or matters listed in Schedule 5 (Conduct of business before Completion) without the prior written consent of the other Seller identified as being for the purposes of this sub-clause 5.1 (such consent not to be unreasonably withheld or delayed). 5.2 Sub-clause 5.1 shall not operate so as to restrict or prevent: (A) the Liberty Global Pre-Completion Reorganisation; (B) the Vodafone Pre-Completion Reorganisation; (C) any action taken by Vodafone or any member of its Retained Group in connection with the KPN Litigation or any distribution to its Retained Group of any payment, or damages made or awarded pursuant to any judgement, award or settlement of the KPN Litigation; (D) any action taken by Vodafone or any member of its Retained Group in connection with any matter listed in sub-clauses 10.17 and 10.18 or by Liberty Global or any member of its Retained Group in connection with any matter listed in sub-clause 10.16; (E) any matter reasonably undertaken by any member of a Target Group or a Retained Group in the case of an emergency or disaster or other serious incident or circumstance with the intention of minimising any adverse effect on the relevant Target Group (and of which the other Seller and the Purchaser will be promptly notified); (F) any matter to the extent that it is expressly provided for (i) in the case of Liberty Global, in the document entitled “16.

CONDUCT OF BUSINESS BEFORE COMPLETION. 5.1 Subject to applicable law and to sub-clause 5.2, each the Seller shall procure that, that between the date of the Signing Protocol this Agreement and Completion: 5.1.1 SCCL and UK OpCo shall, no member of its Target Group will undertake, and each Seller warrants that no member of its Target Group unless it has undertaken since the date of the Signing Protocol, any act which is outside the ordinary course of the business of such Target Group member as carried on at the date of the Signing Protocol without obtained the prior written consent of the other Seller Purchaser to do otherwise (such consent not to be unreasonably withheld or delayed), which consent states that it is being given for comply with Part I of Schedule 5; 5.1.2 to the purposes of this sub-clause 5. 1. In particularextent applicable thereto, each Seller shall procure that (i) no member of the Sale Group knowingly or intentionally acts or omits to act where such act or omission would result in its Target Group will undertake, being in material breach of any BP Agreement and (ii) each Seller warrants that no member of the Sale Group uses its Target Group has undertaken since the date reasonable endeavours to comply with its respective obligations under each of the Signing Protocol, any of the acts or matters listed in Schedule 5 (Conduct of business before Completion) without the prior written consent of the other Seller identified as being for the purposes of this sub-clause 5.1 (such consent not BP Agreements to be unreasonably withheld or delayed)which it is a party. 5.2 Sub-clause Clause 5.1 shall not operate so as to restrict or prevent: (A) 5.2.1 the Liberty Global Pre-Completion Reorganisationentering into of any contract or commitment in the ordinary course of business and consistent with the relevant Sale Group member’s usual practices, which contract or commitment is terminable in accordance with its terms by written notice of six months or less and which is not material in relation to the Sale Group; (B) the Vodafone Pre-Completion Reorganisation; (C) any action taken by Vodafone or any member of its Retained Group in connection with the KPN Litigation or any distribution to its Retained Group of any payment, or damages made or awarded pursuant to any judgement, award or settlement of the KPN Litigation; (D) any action taken by Vodafone or any member of its Retained Group in connection with any matter listed in sub-clauses 10.17 and 10.18 or by Liberty Global or any member of its Retained Group in connection with any matter listed in sub-clause 10.16; (E) 5.2.2 any matter reasonably undertaken by any member of a Target Group or a Retained the Sale Group in the case of an emergency or disaster or other serious incident or circumstance situation with the intention of minimising any adverse effect on the relevant Target Group thereof (and of which the other Seller and the Purchaser will be promptly notified); (F) 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 prior to the date of this Agreement provided such contract or arrangement has been disclosed to the Purchaser in 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 Purchaser and, where practicable, the Seller consults with the Purchaser in respect of the obligations to be performed pursuant to such contract or arrangement; 5.2.4 the payment of any principal, interest and other amounts due and payable by SCCL in accordance with the terms of the Luxco Loan Agreement, this Agreement or 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; or 5.2.6 any matter undertaken at the written request of the Purchaser. 5.3 The Seller shall use its reasonable efforts to provide, and shall procure that the Sale Group members provide, 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 any confidentiality undertakings binding upon it. 5.4 As soon as reasonably practicable after the date on which it gives the NWC Completion Statement, the Seller will deliver a copy of the Supplemental Letter (duly executed by or on behalf of each of the Seller Parties) to the extent that it is expressly provided for (i) in the case of Liberty Global, in the document entitled “16Purchaser.

CONDUCT OF BUSINESS BEFORE COMPLETION. 5.1 4.1 Subject to applicable law and to sub-clause 5.2Clause 4.2, each Seller shall procure that, between the date of the Signing Protocol and Completion, no member of its Target Group will undertake, and each Seller warrants that no member of its Target Group has undertaken since the date of the Signing Protocol, any act which is outside the ordinary course of the business of such Target Group member as carried on at the date of the Signing Protocol without the prior written consent of the other Seller (such consent not to be unreasonably withheld or delayed), which consent states that it is being given for the purposes of this sub-clause 5. 1. In particular, each Seller shall procure that no member of its Target Group will undertake, and each Seller warrants that no member of its Target Group has undertaken since during the period from the date of this Agreement to Completion: (a) the Signing Protocol, Group Companies shall continue to carry on business in the normal course in compliance with all Laws applicable to them and in substantially the same manner as their businesses have been carried on before the date of this Agreement; (b) the Group Companies shall pay all premiums due on each insurance policy of the Group Companies in effect as of the date of this Agreement; and (c) no Group Company shall undertake any of the acts or matters listed in Schedule 5 (Conduct of business before Completion) without the prior written consent of the other Seller identified as being for the purposes of this sub-clause 5.1 (such consent not to be unreasonably withheld or delayed)Restricted Actions. 5.2 Sub-clause 5.1 4.2 Clause 4.1 shall not operate so as to restrict or prevent: (Aa) any matter undertaken at the Liberty Global Pre-Completion Reorganisationwritten request of the Purchaser or with its prior written approval (such approval not to be unreasonably withheld or delayed); (B) the Vodafone Pre-Completion Reorganisation; (C) any action taken by Vodafone or any member of its Retained Group in connection with the KPN Litigation or any distribution to its Retained Group of any payment, or damages made or awarded pursuant to any judgement, award or settlement of the KPN Litigation; (D) any action taken by Vodafone or any member of its Retained Group in connection with any matter listed in sub-clauses 10.17 and 10.18 or by Liberty Global or any member of its Retained Group in connection with any matter listed in sub-clause 10.16; (Eb) any matter reasonably undertaken by any member of a Target Group or a Retained Group Company in the case of an emergency or disaster or other serious incident or circumstance situation with the intention of minimising any adverse effect on thereof; provided, however, that the relevant Target Seller shall provide prompt written notice to the Purchaser of any matter so undertaken; (c) the completion or performance of any obligations required to be undertaken pursuant to any Contract entered into by any Group Company prior to the date of this Agreement; (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 applicable Law; (e) the entering into in the ordinary course of 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 wages 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 which this Agreement) is completed, including the other 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 will be promptly notified); (F) any matter to by no later than the extent 20th day of the next following month management accounts for that it is expressly provided for (i) month in the case form of Liberty Globalthe 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 (c) for the month of May 2011, the Company shall by no later than 3 May 2011 produce and send to the Purchaser and the Seller the Company’s best estimate of Group EBITDA for May 2011 approved by its board, acting in good faith (but with no personal liability in the absence of fraud or wilfully approving a document entitled “16known to be inaccurate); and Group EBIDTA shall be the aggregate of the amounts shown in the documents produced in accordance with Clause 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. 4.5 In respect of the Transaction contemplated by this Agreement, the Parties shall comply with the Social and Economic Council Merger Regulation for the protection of employees (SER-Besluit Fusiegedragsregels 2000 ter bescherming xxx xx xxxxxxxx xxx xxxxxxxxxx).

CONDUCT OF BUSINESS BEFORE COMPLETION. 5.1 ​ 4.1 Subject to applicable law and to sub-clause 5.24.2, each the Seller shall procure thatthat the Target Group carries on its business in the ordinary course in a manner substantially consistent with the past practice during the twelve (12) months preceding the date of this Agreement with the consequence that the Seller shall not, and shall procure that the Target Group shall not, between the date of the Signing Protocol this Agreement and Completion, no member of its Target Group will undertake, and each Seller warrants that no member of its Target Group has undertaken since the date Completion undertake any of the Signing Protocol, any act which is outside acts or matters deviating from the ordinary course of business, including but not limited to the business of such Target Group member as carried on at the date of the Signing Protocol acts and matters ​ ​ listed in Schedule 8, in each case, without the prior written consent of the other Seller Purchaser (such consent not to be unreasonably withheld or delayed)withheld, which consent states that it is being given for the purposes of this sub-clause 5. 1. In particular, each Seller shall procure that no member of its Target Group will undertake, and each Seller warrants that no member of its Target Group has undertaken since the date of the Signing Protocol, any of the acts or matters listed in Schedule 5 (Conduct of business before Completion) without the prior written consent of the other Seller identified as being for the purposes of this sub-clause 5.1 (such consent not to be unreasonably withheld conditioned or delayed). 5.2 Sub-4.2 Neither clause 5.1 4.1 nor Schedule 8 shall not operate so as to restrict or prevent:: ​ (A) the Liberty Global Pre-Completion Reorganisation; (B) the Vodafone Pre-Completion Reorganisation; (C) any action taken by Vodafone act, omission or any member of its Retained Group in connection with the KPN Litigation or any distribution to its Retained Group of any payment, or damages made or awarded pursuant to any judgement, award or settlement of the KPN Litigation; (D) any action taken by Vodafone or any member of its Retained Group in connection with any matter listed in sub-clauses 10.17 and 10.18 or by Liberty Global or any member of its Retained Group in connection with any matter listed in sub-clause 10.16; (E) any matter reasonably undertaken by any member of a Target Group or a Retained 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 relevant 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 (and or in respect of which the other 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 Purchaser will be promptly notified);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 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 is the subject of the Special Indemnities, provided that it is expressly provided for (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 case Completion Accounts (to the extent not already settled by the Completion Close Time); and (ii) the Seller shall notify in advance the Purchaser of Liberty Globalany 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 e-mail addresses identified in clause 4.3, it being understood that the document entitled “16consent of the Purchaser for the purposes of clause 4.1 may be given by 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 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. ​ (A) The Seller shall, or shall procure that the Target Group shall: (i) deliver to the Purchaser: ​ (a) [***] ​ (b) [***] ​ (c) [***] ​ (ii) [***] ​ (B) [***] ​ ​ 4.8 [***] ​