Conduct of the Target Business. (a) Except as set forth in Section 5.1 of the Sellers’ Disclosure Letter, between the date hereof and the Closing, the Sellers’ Representative shall cause the Target Companies and, with respect to matters related to Dutch Employees, ING Bank Personeel B.V. to (except in each case as referred to in Section 5.3 (Exceptions) or (z) as may be approved by the Purchasers’ Representative in writing, such approval not to be unreasonably withheld, conditioned or delayed (except in the case of subsection (xi) below)) (A) carry on the Target Business in the Ordinary Course, (B) use commercially reasonable endeavours to preserve substantially intact the business organization of the Target Business and keep available the present services of the Company Employees, (C) defend all Litigation and (D) to preserve the goodwill and significant business relationships of the Target Companies with customers, suppliers and other Persons with which the Target Companies have significant business relations, in each case in the Ordinary Course, and the Sellers’ Representative shall cause the Target Companies and, with respect to matters related to Dutch Employees covered by subsections (x), (xv), and (xvi) below, ING Bank Personeel B.V., without limiting the generality of the foregoing, not to: (i) acquire or agree to acquire any shares or other interest in any company, partnership or other venture (other than in another Target Company); (ii) sell, pledge, transfer, dispose of, assign, encumber (other than Permitted Encumbrances), create, allot or issue, or grant an option to subscribe for, any share capital of or any interest in any Target Company or any rights with respect thereto, any security convertible into or representing a right to acquire such shares of any Target Company, or enter into any agreement, call or commitment of any character that would obligate it to do any of the foregoing, in each case, except as required to consummate the Transactions; (iii) amend any material provision of the documents that establish legal existence or that govern the internal affairs of a Target Company, or of any material term of any outstanding security issued by any Target Company; (iv) merge or consolidate any Target Company with any Person (other than another Target Company), or adopt a plan of complete or partial liquidation, dissolution, restructuring, recapitalization or other reorganization of any Target Company; (v) other than in the Ordinary Course, form, organize or sponsor any Fund (other than forming, organizing and/or sponsoring a Permitted Fund on terms consistent with past practice), or make any material amendment or modification to the Fund Documents of any Fund; (vi) initiate or settle any Litigation or other proceeding pending or threatened resulting in a payment in excess of $300,000 with respect to each Business Unit or resulting in any material restriction on the operation of the Target Business; (vii) authorize or make any new capital expenditure or series of related new capital expenditures, except such capital expenditures of less than $300,000 with respect to each Business Unit, or that are in the Ordinary Course; (viii) (A) incur any indebtedness for borrowed money or enter into any swap or other off-balance transactions or assume, guaranty, endorse or otherwise as an accommodation become responsible for the obligations of any other Person, in each case, other than Ordinary Course short-term borrowings in an amount not to exceed $300,000 with respect to each Business Unit, or borrowings made among Target Companies, (B) other than in the Ordinary Course, sell or subject any of the material assets of any Target Company to any material Encumbrances (other than Permitted Encumbrances), (C) other than investments in marketable securities in the Ordinary Course, make any material loans, advances or capital contributions to, or investments in any other Person, except with another Target Company or (D) forgive any indebtedness for borrowed money; (ix) enter into any Contract that would be a Related Party Contract if such Contract were entered into prior to the date hereof; (x) other than in the Ordinary Course, modify, amend, terminate any Specified Contract (other than an Advisory Contract), or enter into any Contract that would be a Specified Contract (other than an Advisory Contract) if entered into prior to the date hereof, or waive, release or assign any material rights or claims thereunder; (xi) amend, terminate or revise any Advisory Contract or Side Letter to reduce, waive or agree to offset any fee (including any applicable fee or Performance Fee) or reimburse any expenses payable under such Advisory Contract or Side Letter to any of the Target Companies or Funds or offer or commit to any Fund or Client any payment or any reduced fee, fee waiver, fee discount, rebate, reimbursement or similar arrangement or waive or reduce or agree to reduce any unfunded commitment of any investor in any Fund, or enter into any Advisory Contract in respect of any New Account other than with respect to such New Accounts on materially similar terms as to the Existing Advisory Contracts and in a manner consistent with past practice; (xii) authorize or make any material change in the respective accounting policies or methods of any Target Company or Fund except as may be required by GAAP, IFRS or applicable Law, as applicable; (xiii) subject to the Target Companies’ fiduciary duties to the Funds under applicable Law, change or agree to change in any material respect the investment policies of any Fund; (xiv) sell, license, transfer or otherwise dispose of, or allow the expiration or lapse of, any material Intellectual Property owned by the Target Companies; (xv) solicit or hire, or assist any other Person to solicit or hire, any Senior Employee to leave his or her employment with the Target Business or to accept any other position or employment with the Sellers or any Affiliate of the Sellers (other than the Target Companies); (xvi) except as required to comply with any Benefits Plan or applicable Law, (A) increase the compensation or fringe benefits of any Company Employee (except for annual, promotion-related or merit-based increases in salary or hourly wage rates for Company Employees having an annual salary below €150,000, in the ordinary course consistent with past practice or with respect to Company Employees having an annual salary above €150,000, as set forth in Section 5.1(a)(xvi) of the Sellers’ Disclosure Letter), or the payment of accrued or earned but unpaid bonuses in accordance with the terms of the applicable Benefits Plan, provided, however, that the aggregate 2010 bonus payments will not exceed or be materially less than the aggregate amount as set forth on Section 5.1(a)(xvi) of the Sellers’ Disclosure Letter); (B) grant any new severance or termination pay to any Company Employee; (C) other than as set forth on Section 5.1(a)(xvi) of the Sellers’ Disclosure Letter hire or promote any Company Employee with an annual base salary of greater than €100,000, other than to fill vacancies, or terminate any such Company Employee other than for cause; (D) loan or advance any money or other property to any Company Employee; (E) other than as provided for in Section 5.6 or as set forth on Section 5.1(a)(xvi) of Sellers’ Disclosure Letter, establish, adopt, enter into, or terminate any Benefits Plan or Retirement Benefit Arrangement, or any plan, agreement, program, policy, trust, fund or other arrangement that would be a Company Benefits Plan or Retirement Benefit Arrangement if it were in existence as of the date of this Agreement, or amend any Benefits Plan or Retirement Benefit Arrangement so as to materially increase the obligations of any Target Company to fund any such Benefits Plan or Retirement Benefit Arrangement; (F) grant any equity or equity-based awards; or (G) deviate from the existing practices in dealing with the labor union or works councils covering Company Employees in any material respects; (xvii) make or change any material non-routine Tax election, change an annual accounting period that applies solely for Tax purposes except as required by applicable Law provided that the Sellers’s Representative shall notify the Purchasers’ Representative as soon as reasonably practicable if it is relying on this exception, adopt or change any accounting method that applies solely for Tax purposes with respect to material Taxes except as required by applicable Law provided that the Sellers’ Representative shall notify the Purchasers’ Representative as soon as reasonably practicable if it is relying on this exception, enter into any closing agreement, settle or compromise any proceeding with respect to any material Tax claim or assessment relating to any of the Target Companies, surrender any right to claim a refund of material Taxes (except as required by Law provided that the Sellers’ Representative shall notify the Purchasers’ Representative as soon as reasonably practicable if it is relying on this exception), or (b) file any amended material Tax Return (except as required by applicable Law provided that the Sellers’ Representative shall notify the Purchasers’ Representative as soon as reasonably practicable if it is relying on this exception), consent to any extension or waiver of the limitation period applicable to any material Tax claim or assessment relating to any of the Target Companies, or take any other similar action relating to the filing of any material Tax Return or the payment of any material Tax, to the extent any such action listed in (b) is reasonably expected to materially adversely affect any member of the Purchasers’ Group; (xviii) file a voluntary petition for bankruptcy; (xix) reduce or agree to reduce any investors’ unfunded commitments in any Fund other than to the extent required by the existing Fund Documents; (xx) initiate or threaten any Litigation against any Client or any investor in any Fund; or (xxi) wind up, terminate or dissolve any Fund except a Terminated Fund; (xxii) amend, modify or terminate any of the ING Insurance Investment Management Agreement, the ING Insurance Trademark License Agreement, the ING Insurance Non-compete Agreement or the Clarion Partners Non-Solicitation/Non-Competition Agreement. It being understood that, with respect to the prohibitions set forth in Sections 5.1(a)(i) to 5.1(a)(xxii), any exceptions to such prohibition specified therein that does not require the approval of the Purchasers’ Representative shall be deemed to be in the Ordinary Course. For the avoidance of doubt the provisions set forth in this Section 5.1 do not apply to or restrict the activities or operations of any Fund or any Fund Subsidiary except with respect to subclauses (xiii) and (xxi) only to the extent that such provisions restrict the actions of the managing member, general partner or other Person controlling any Fund or Fund Subsidiary. (b) The Purchasers’ Representative will, promptly following the date of this Agreement, designate two (2) individuals from either of whom the relevant Sellers may seek written approval to undertake any actions not permitted to be taken under this Section 5.1 as well as in respect of communications under Section 5.8 (Client Approvals) and will ensure that such Persons will respond, on behalf of the Purchasers’ Representative to the Sellers’ Representative’s (or to the relevant Sellers’) written requests within five (5) Business Days.
Appears in 1 contract
Samples: Share Purchase Agreement (Cb Richard Ellis Group Inc)
Conduct of the Target Business. (a) Except as set forth in Section 5.1 of the Sellers’ Disclosure Letter, between the date hereof and the Closing, the Sellers’ Representative shall cause the Target Companies and, with respect to matters related to Dutch Employees, ING Bank Personeel B.V. to (except in each case as referred consented to in Section 5.3 writing by Purchaser in advance (Exceptions) or (z) as may be approved by the Purchasers’ Representative in writing, such approval consent not to be unreasonably withheld, conditioned or delayed delayed), between the date hereof and the earlier of the Closing and the termination of this Agreement in accordance with its terms, (except in 1) as it relates to the case of subsection Target Company and the Transferred Subsidiary, Parent shall and shall cause the Target Company and the Transferred Subsidiary to and (xi2) below)the Target Company shall and shall cause the Transferred Subsidiary to (x) (A) use their respective commercially reasonable efforts to carry on and operate the Target Business in the Ordinary Course, (B) use commercially reasonable endeavours to preserve substantially intact the ordinary course of business organization of the Target Business and keep available the present services of the Company Employees, (C) defend all Litigation and (Dy) to preserve the goodwill and significant business relationships of the Target Companies with customers, suppliers and other Persons with which the Target Companies have significant business relations, in each case in the Ordinary Course, and the Sellers’ Representative shall cause the Target Companies and, with respect to matters related to Dutch Employees covered by subsections (x), (xv), and (xvi) below, ING Bank Personeel B.V., without limiting the generality of the foregoing, not tonot:
(i) acquire amend, or agree to acquire waive any shares material rights under, any provision of the Constituent Documents of the Target Company or other interest in the Transferred Subsidiary, or any company, partnership term of the Target Equity Interests or other venture (other than in another Target Company)the outstanding Equity Interest issued by the Transferred Subsidiary;
(ii) sell, pledge, transfer, dispose of, assign, encumber Encumber (other than Permitted Encumbrances), create, allot or issueallot, issue or grant an option to subscribe for, any share capital of Target Equity Interests or any interest Equity Interest in the Transferred Subsidiary or any option, warrant or right of any kind to subscribe, exercise, convert or exchange for any Target Company Equity Interests or any rights with respect thereto, any security convertible into or representing a right to acquire such shares of any Target Company, or enter into any agreement, call or commitment of any character that would obligate it to do any of Equity Interest in the foregoing, in each case, except as required to consummate the TransactionsTransferred Subsidiary;
(iii) amend acquire or agree to acquire any material provision Equity Interest or other securities in any Person (other than as between the Target Company and the Transferred Subsidiary, provided that the Target Company continues to own all of the documents that establish legal existence or that govern Equity Interests of the internal affairs of a Target Company, or of any material term of any outstanding security issued by any Target CompanyTransferred Subsidiary);
(iv) (A) recapitalize, adjust, split, combine or reclassify any Target Equity Interests or any Equity Interest in the Transferred Subsidiary, (B) repurchase, redeem or otherwise reacquire any shares of capital stock or other securities, (C) merge or consolidate any the Target Company or the Transferred Subsidiary with any Person or (other than another Target Company), D) enter into or adopt a plan of complete or partial winding-up, liquidation, dissolution, restructuring, recapitalization restructuring or other reorganization of any the Target CompanyCompany or the Transferred Subsidiary;
(v) declare, accrue, set aside, make or pay any dividend or other than distribution, payable in the Ordinary Coursecash, formstock, organize property or sponsor any Fund (other than formingotherwise, organizing and/or sponsoring a Permitted Fund on terms consistent with past practice), or make any material amendment or modification respect to the Fund Documents Equity Interests of the Target Company or the Transferred Subsidiary (except for dividends paid by any Funddirect or indirect wholly-owned Subsidiary to the Target Company or to any other direct or indirect wholly-owned Subsidiary of the Target Company) or enter into any agreement with respect to the voting of its Equity Interests;
(vi) initiate form any Subsidiary or settle enter into any Litigation joint venture or other proceeding pending or threatened resulting in a payment in excess of $300,000 with respect to each Business Unit or resulting in any material restriction on the operation of the Target Businesssimilar arrangement;
(vii) authorize except in any case (1) as may be required by applicable Law, (2) to satisfy contractual obligations existing as of the date of this Agreement under any Target Benefit Plan listed in Section 4.9(a) of Target Company’s Disclosure Letter or make (3) in the ordinary course of business, (A) grant, increase or accelerate the vesting or payment of any wages, salaries, bonuses, severance pay, other compensation, pension or other benefits payable or potentially available to any current or former director, officer, employee or independent contractor who is a natural person of the Target Company or the Transferred Subsidiary (including the Key Persons) other than for employees of the Target Company or the Transferred Subsidiary who are newly hired or promoted in the ordinary course of business and otherwise in compliance with the terms hereof, (B) hire any new capital expenditure or series of related new capital expenditures, except such capital expenditures of less employees with a base salary greater than $300,000 100,000 or terminate the employment of any Key Person (other than for cause, provided that the Target Company shall provide Purchaser with reasonable written notice of and a reasonable opportunity to consult with Target Company with respect to each Business Unit, any such termination in advance) or (C) enter into or amend or renew or terminate any Target Benefit Plan or any arrangement that are would have been a Target Benefit Plan had it been in effect as of the Ordinary Coursedate of this Agreement;
(viii) (A) incur adopt, establish, enter into, amend, modify or terminate any indebtedness for borrowed money or enter into any swap collective bargaining agreement, works council agreement or other off-balance transactions similar labor Contract or assume, guaranty, endorse or otherwise as an accommodation become responsible for the obligations of any other Person, in each case, other than Ordinary Course short-term borrowings in an amount not to exceed $300,000 with respect to each Business Unit, or borrowings made among Target Companies, (B) recognize any union, works council, labor organization or other than in workers’ group as the Ordinary Course, sell or subject any of the material assets bargaining representative of any Target Company to any material Encumbrances (other than Permitted Encumbrances), (C) other than investments in marketable securities in the Ordinary Course, make any material loans, advances or capital contributions to, or investments in any other Person, except with another Target Company or (D) forgive any indebtedness for borrowed moneyemployees;
(ix) enter into any Contract that would be a Related Party Contract if such Contract were entered into prior to the date hereof;
(x) other than in the Ordinary Course, modify, amend, terminate any Specified Contract (other than an Advisory Contract), or enter into any Contract that would be a Specified Contract (other than an Advisory Contract) if entered into prior to the date hereof, or waive, release or assign any material rights or claims thereunder;
(xi) amend, terminate or revise any Advisory Contract or Side Letter to reduce, waive or agree to offset any fee (including any applicable fee or Performance Fee) or reimburse any expenses payable under such Advisory Contract or Side Letter to any of the Target Companies or Funds or offer or commit to any Fund or Client any payment or any reduced fee, fee waiver, fee discount, rebate, reimbursement or similar arrangement or waive or reduce or agree to reduce any unfunded commitment of any investor except in any Fund, or enter into any Advisory Contract in respect of any New Account other than with respect to such New Accounts on materially similar terms as to the Existing Advisory Contracts and in a manner consistent with past practice;
(xii) authorize or make any material change in the respective accounting policies or methods of any Target Company or Fund except case as may be required by GAAP, IFRS or applicable Law, as applicable;
(xiii) subject to the Target Companies’ fiduciary duties to the Funds under applicable Law, change or agree to change in any material respect the investment policies of any Fund;
(xiv) sell, license, transfer or otherwise dispose of, or allow the expiration or lapse of, any material Intellectual Property owned by the Target Companies;
(xv) solicit or hire, or assist any other Person to solicit or hire, any Senior Employee to leave his or her employment with the Target Business or to accept any other position or employment with the Sellers or any Affiliate of the Sellers (other than the Target Companies);
(xvi) except as required to comply with any Benefits Plan or applicable Law, (A) increase the compensation prepare or fringe benefits of file any Company Employee (except for annual, promotion-related income or merit-based increases in salary or hourly wage rates for Company Employees having an annual salary below €150,000, in the ordinary course consistent other material Tax Return inconsistent with past practice or with respect to Company Employees having an annual salary above €150,000practice, as set forth in Section 5.1(a)(xvi) of the Sellers’ Disclosure Letter), or the payment of accrued or earned but unpaid bonuses in accordance with the terms of the applicable Benefits Plan, provided, however, that the aggregate 2010 bonus payments will not exceed or be materially less than the aggregate amount as set forth on Section 5.1(a)(xvi) of the Sellers’ Disclosure Letter); (B) grant any new severance or termination pay to any Company Employee; (C) other than as set forth on Section 5.1(a)(xvi) of the Sellers’ Disclosure Letter hire or promote any Company Employee with an annual base salary of greater than €100,000, other than to fill vacancies, or terminate any such Company Employee other than for cause; (D) loan or advance any money or other property to any Company Employee; (E) other than as provided for in Section 5.6 or as set forth on Section 5.1(a)(xvi) of Sellers’ Disclosure Letter, establish, adopt, enter into, or terminate any Benefits Plan or Retirement Benefit Arrangement, or any plan, agreement, program, policy, trust, fund or other arrangement that would be a Company Benefits Plan or Retirement Benefit Arrangement if it were in existence as of the date of this Agreement, or amend any Benefits Plan or Retirement Benefit Arrangement so as to materially increase the obligations of any Target Company to fund any such Benefits Plan or Retirement Benefit Arrangement; (F) grant any equity or equity-based awards; or (G) deviate from the existing practices in dealing with the labor union or works councils covering Company Employees in any material respects;
(xvii) make or change any material non-routine Tax electionelection (except in the ordinary course of business), change an annual accounting period that applies solely for Tax purposes except as required by applicable Law provided that the Sellers’s Representative shall notify the Purchasers’ Representative as soon as reasonably practicable if it is relying on this exception, (C) adopt or change any accounting method that applies solely for Tax purposes with respect relating to material Taxes except as required by applicable Law provided that the Sellers’ Representative shall notify the Purchasers’ Representative as soon as reasonably practicable if it is relying on this exceptionTaxes, (D) enter into any closing agreementagreement or request any ruling or similar guidance relating to Taxes, (E) settle or compromise any proceeding with respect to claim for any material Tax claim amount of Taxes or assessment assessments relating to any of the Target CompaniesTaxes, (F) surrender any right to claim a refund of any material amount of Taxes paid, (except as required by Law provided that the Sellers’ Representative shall notify the Purchasers’ Representative as soon as reasonably practicable if it is relying on this exception), or (bG) file any amended material Tax Return (except as required by applicable Law provided that the Sellers’ Representative shall notify the Purchasers’ Representative as soon as reasonably practicable if it is relying on this exception), consent to any extension or waiver of the limitation period applicable to any claim for any material Tax claim amount of Taxes or assessment assessments relating to any material amount of Taxes (other than automatic extensions or extensions in the ordinary course of business), or (H) amend any income or other material Tax Return, in each case, if such Tax Return, change, adoption, agreement, settlement, surrender, consent or amendment would reasonably be expected to bind, materially adversely affect or materially increase the liability of Purchaser, the Target Company, the Transferred Subsidiary or any of their respective Affiliates;
(x) sell, assign, transfer, lease (as lessor), license (as licensor) or otherwise dispose of, grant an Encumbrance on or permit an Encumbrance to exist on, or agree to sell, assign, transfer, lease, license, or otherwise dispose of, or grant or permit an Encumbrance to exist on, (A) any properties, assets or rights of the Target CompaniesCompany or the Transferred Subsidiary, with a value greater than $100,000 individually or $250,000 in the aggregate, other than any Permitted Encumbrances or licenses under Intellectual Property granted in the ordinary course of business, or take (B) any real property or interests therein, other than any Permitted Encumbrances;
(xi) make any capital expenditures, except for any such expenditures (A) to the extent reasonably necessary to avoid a material business interruption as a result of any act of God, war, terrorism, earthquake, fire, hurricane, storm, flood, civil disturbance, explosion, partial or entire failure of utilities or information technology systems, or any other similar action cause not reasonably within the control of the Target Company or its Subsidiaries or (B) not in excess of $1,500,000 in the aggregate;
(xii) acquire, lease (as lessee) or license (as licensee) (A) a substantial portion of the assets or business of any Person or any division or line of business thereof, (B) any assets or rights in any transaction, in each case, with a value greater than $200,000 individually or $500,000 in the aggregate or (C) any real property or interests therein, with a value greater than $150,000 individually or $500,000 in the aggregate;
(xiii) enter into any new line or area of business or discontinue any existing line or area of business that involves or requires, or would reasonably be expected to involve or require, over $150,000 in capital, funding, expenditures or annual revenues or is otherwise material to the Target Business;
(xiv) commence any proceeding or file any petition in any court relating to bankruptcy, reorganization, insolvency, dissolution, liquidation or relief from debtors, in any case, in respect of the filing Target Company or the Transferred Subsidiary, make any assignment for the benefit of creditors or apply for the appointment of a custodian, receiver or trustee;
(A) enter into any Contract that, if entered into prior to the date hereof, would be deemed a Specified Contract, (B) amend, modify, waive, release, extend, transfer or terminate, in each case, in any material respect, any right under any Contract that is or would be deemed a Specified Contract if entered into prior to the date hereof, except renewals of existing Specified Contracts in the ordinary course of business on terms that are, taken as a whole, at least as favorable to the Target Company or the Transferred Subsidiary, as applicable, as the terms thereof on the date of this Agreement or (C) subject to Section 6.14(a) (Termination of Certain Affiliate Arrangements; Releases), enter into, amend, modify, waive, release, extend, transfer or terminate any Related Party Contract;
(xvi) (A) lend money to, or forgive any indebtedness of, any Person (other than between the Target Company and the Transferred Subsidiary) or (B) incur or modify any Target Company Indebtedness or issue or sell any debt securities or guarantee any debt securities of any material Tax Return Person, other than any such indebtedness, debt securities or the payment of any material Tax, guarantees that will be discharged or redeemed on or prior to the extent Closing;
(xvii) apply for, claim or obtain any such action listed in (b) is reasonably expected to materially adversely affect loan, relief or benefit made available under any member of the Purchasers’ GroupCOVID-19 Relief Law;
(xviii) file a voluntary petition for bankruptcycancel or materially reduce the amount of coverage provided by any material insurance policy, unless simultaneous with such cancellation or modification, replacement policies are in full force and effect, in each case, providing coverage equal to or greater than the coverage under the canceled or modified policy;
(xix) reduce (A) commence or agree to reduce initiate any investors’ unfunded commitments Action by or on behalf of the Target Company or the Transferred Subsidiary or (B) release, waive, assign, compromise, abandon or settle any Action or material right or claim by or against the Target Company or the Transferred Subsidiary, in any Fund each case, other than (1) any Action, right, or claim involving an amount at issue of less than $500,000 individually, which Action, right or claim involves only the payment of monetary damages and does not include the imposition of equitable relief on, or the admission of wrongdoing by, the Target Company or the Transferred Subsidiary, or (2) to the extent required by the existing Fund Documentsenforce rights under this Agreement;
(xx) initiate or threaten any Litigation against any Client or any investor (A) except in any Fundcase as may be required by applicable Law or applicable accounting or auditing standards, make any material change to any accounting policies or methods, (B) accelerate the collection of any accounts receivable or delay the payment of any accounts payable, except for immaterial accelerations or delays in the ordinary course of business, or (C) except as required by GAAP, write off as uncollectible or establish any extraordinary reserve with respect to any material account receivable or the Target Company Indebtedness; or
(xxi) wind upaffirmatively authorize, terminate agree or dissolve any Fund except a Terminated Fund;
(xxii) amend, modify or terminate commit to do any of the ING Insurance Investment Management Agreement, the ING Insurance Trademark License Agreement, the ING Insurance Non-compete Agreement or the Clarion Partners Non-Solicitation/Non-Competition Agreement. It being understood that, with respect to the prohibitions set forth in Sections 5.1(a)(i) to 5.1(a)(xxii), any exceptions to such prohibition specified therein that does not require the approval of the Purchasers’ Representative shall be deemed to be in the Ordinary Course. For the avoidance of doubt the provisions set forth in actions prohibited by this Section 5.1 do not apply to or restrict the activities or operations of any Fund or any Fund Subsidiary except with respect to subclauses (xiii) and (xxi) only to the extent that such provisions restrict the actions of the managing member, general partner or other Person controlling any Fund or Fund Subsidiary6.1(a).
(b) The PurchasersNotwithstanding anything to the contrary in Section 6.1(a), none of Parent, the Target Company nor any of their respective Affiliates shall be prevented from undertaking or be required to obtain Purchaser’s consent pursuant to Section 6.1(a) with respect to the following actions and inactions:
(i) any action or inaction required by Law or by any quarantine, “shelter in place,” “stay at home”, workforce reduction, social distancing, shutdown, closure, sequester, or any other similar Law, Government Order, by any Government Authority in connection with or in response to COVID-19 (“COVID-19 Measures”) or required or requested by any Government Authority in connection with or in response to COVID-19 (provided that, to the extent reasonably practicable and permitted by applicable Law, the Target Company shall promptly notify Purchaser of any such action or inaction if it would otherwise violate Section 6.1(a));
(ii) any action or inaction required or reasonably necessary to (A) protect the health and safety of the Target Company’s or any of its Affiliates’ Representative willemployees, promptly following customers or suppliers and other individuals having business dealings with the Target Company or its Affiliates in connection with COVID-19 or (B) respond to service disruptions caused by COVID-19 or any COVID-19 Measures, in each case to the extent reasonably consistent with actions that have been taken or not taken by the Target Company or the Transferred Subsidiary in connection therewith prior to the date of this Agreementhereof (provided that, designate two (2) individuals from either of whom the relevant Sellers may seek written approval to undertake any actions not permitted to be taken under this Section 5.1 as well as in respect of communications under Section 5.8 (Client Approvals) and will ensure that such Persons will respond, on behalf of the Purchasers’ Representative to the Sellers’ Representativeextent reasonably practicable and permitted by applicable Law, the Target Company shall promptly notify Purchaser of any such action or inaction if it would otherwise violate Section 6.1(a));
(iii) the implementation of any transaction or the taking of any action expressly required or contemplated by the terms of any Transaction Document; or
(iv) any action disclosed in Section 6.1(b) of Parent’s Disclosure Letter or Section 6.1(b) of Target Company’s Disclosure Letter.
(c) Nothing contained in this Agreement is intended to, or shall be deemed to, give Purchaser, directly or indirectly, any rights sufficient to “control” (as defined in the relevant Sellers’HSR Act or 16 C.F.R. § 801.1(b)) written requests within five (5) Business Daysany of Parent, the Target Company or the Transferred Subsidiary.
Appears in 1 contract
Conduct of the Target Business. (a) Except as set forth in Section 5.1 of the Sellers’ Disclosure LetterThe Sellers undertake to procure that, between the date hereof and the ClosingClosing Date, the Sellers’ Representative shall cause the Target Companies and, with respect to matters related to Dutch Employees, ING Bank Personeel B.V. to (except in each case (A) as referred to in Section 5.3 5.2 (Exceptions) or (zB) as may be approved by to the extent that the Sellers or the Target Companies provide advance written notice to the Purchasers’ Representative and the Purchasers’ Representative consents in writing, writing or fails to respond to such approval not notice within ten (10) Business Days of delivery of such notice (which failure shall be deemed to be unreasonably withheldconsent), conditioned or delayed it being understood that notwithstanding the foregoing the Purchasers’ Representative shall use commercially reasonable efforts to respond to such requests within five (except in the case 5) Business Days of subsection receipt thereof) shall (xi) below)) (Ax) carry on the Target Business in the Ordinary Course, (B) use commercially reasonable endeavours to and preserve substantially intact the their respective business organization of the Target Business organizations and keep available the present services of the Company Employees, (C) defend all Litigation and (D) to preserve the goodwill and significant maintain business relationships of the Target Companies with customers, suppliers and other Persons with which the Target Companies have significant business relations, in each case in the Ordinary Course, and the Sellers’ Representative shall cause (y) ensure that the Target Companies and, with respect to matters related to Dutch Employees covered by subsections (x), (xv), and (xvi) below, ING Bank Personeel B.V., without limiting the generality of the foregoing, not toshall not:
(i) acquire amend any provision of the organizational documents (including any document that establishes legal existence or agree to acquire any shares or other interest in any company, partnership or other venture (other than in another that governs the internal affairs of a Target Company), or any term of any outstanding securities issued by any Target Company, except as may be required by a Government Authority pursuant to applicable Law;
(ii) sell, pledge, transfer, dispose of, assign, encumber in any way (other than Permitted Encumbrances), create, allot or issue, redeem, split, combine, subdivide or otherwise reclassify or grant an option to subscribe for, any share capital of or any interest in any Target Company or any rights with respect thereto, any security convertible into or representing a right to acquire such shares of any Target Companyin, or enter into any agreementsecurities issued by, call or commitment of any character that would obligate it to do any of the foregoing, in each case, except as required to consummate the Transactions;
(iii) amend any material provision of the documents that establish legal existence or that govern the internal affairs of a Target Company, or of any material term of any outstanding security issued by any Target Company;
(iviii) acquire any assets of, or any shares or other interests in, any company, partnership or other venture, other than in the Ordinary Course, or merge or consolidate any Target Company with any Person (other than another Target Company)person, or adopt a plan of complete or partial liquidation, dissolution, restructuring, recapitalization or other reorganization of any Target Company;
(iv) reduce any of the fees charged as of the date hereof by the Target Companies to its customers;
(v) (A) declare or pay any dividend or make any other distribution to its shareholders whether or not upon or in respect of any share capital in any Target Company of its capital stock, other than (w) regular cash dividends in respect of fiscal year 2012 profits (and with respect to any October 2013 interim dividend, solely in respect of 2013 profits of the Ordinary CourseTarget Companies earned prior to the Balance Sheet Date), form, organize or sponsor any Fund (other than forming, organizing and/or sponsoring a Permitted Fund on terms at times and with payout ratios consistent with past practice, declared and paid prior to the Balance Sheet Date, (x) regular cash Post-Balance Sheet Date Dividends in respect of fiscal year 2012 profits (and with respect to any October 2013 interim dividend, solely in respect of 2013 profits of the Target Companies earned prior to the Balance Sheet Date), at times and with payout ratios consistent with past practice, (y) Minority Interest Dividends (it being understood that such dividend(s) may take the form of interim dividends in respect of 2013 profits or dividends of retained earnings, in each case in accordance with applicable Law and applicable accounting rules), or (z) the dividend(s) to be paid under Section 2.4(b) (Net Debt Statement; Net Debt Dividend) above (it being understood that such dividend(s) may take the form of interim dividends in respect of 2013 profits or dividends of retained earnings, in each case in accordance with applicable Law and applicable accounting rules), or (B) declare any dividend or make any material amendment other distribution to its shareholders whether or modification not upon or in respect of any share capital in any Target Company of its capital stock that will be paid after the date that is five (5) Business Days prior to the Fund Documents of any FundClosing Date;
(vi) initiate incur or settle assume any Litigation indebtedness, other than (x) prior to or other proceeding pending or threatened resulting on the Balance Sheet Date, any short-term indebtedness in a payment the Ordinary Course for working capital purposes, and (y) after the Balance Sheet Date, any short-term indebtedness in the Ordinary Course for working capital purposes in excess of $300,000 with respect USD 500,000 at any given time on an aggregate basis for all Target Companies, or pay, repay, discharge, purchase, repurchase or satisfy any indebtedness issued or guaranteed by any Target Company, except to each Business Unit the extent required by the terms thereof or resulting in modify the terms of any material restriction on indebtedness (except to the operation of extent the Target BusinessCompanies would otherwise not be restricted from incurring or assuming such indebtedness by this Section 5.1(a)(vi));
(vii) authorize permit or make allow any new capital expenditure or series of related new capital expenditures, except such capital expenditures of less than $300,000 with respect to each Business Unit, or that are in the Ordinary Course;
(viii) (A) incur any indebtedness for borrowed money or enter into any swap or other off-balance transactions or assume, guaranty, endorse or otherwise as an accommodation become responsible for the obligations of any other Person, in each case, other than Ordinary Course short-term borrowings in an amount not to exceed $300,000 with respect to each Business Unit, or borrowings made among Target Companies, (B) other than in the Ordinary Course, sell or subject any of the material assets of any Target Company to become subject to any material Encumbrances (Encumbrance other than a Permitted Encumbrances)Encumbrance;
(viii) sell, (C) other than lease, license or otherwise dispose of any of its assets, except for transactions made in connection with investments in marketable securities its Ordinary Course and in the Ordinary Course, make any material loans, advances or capital contributions to, or investments in any other Person, except compliance with another Target Company or (D) forgive any indebtedness for borrowed moneypre-existing investment guidelines;
(ix) enter into change any Contract that would be a Related Party Contract if such Contract were entered into prior of its material accounting, hedging, investing, underwriting, actuarial or, pricing, or marketing policies, practices, methods or policies (including reserve methods, practices or policies), or policies with respect to sales agents, employed with respect to the date hereofTarget Companies (in each case, if any), except as is required as a result of a change in International Financial Reporting Standards;
(x) terminate or fail to use reasonable best efforts to renew or preserve the validity of any Permits material to the Target Companies;
(xi) make or change any Tax election, settle or compromise any claim, notice, audit report or assessment in respect of Taxes, change any annual Tax accounting period, adopt or change any method of Tax accounting, file any amended Tax return, enter into any private letter ruling, closing agreement or similar ruling or agreement with respect to Taxes with any Tax Authority, surrender any right to claim a Tax refund or Tax credit or consent to any extension or waiver of the statute of limitations period applicable to any Tax claim or assessment, or take any other than in similar action with respect to Taxes outside the Ordinary Course, modifyin each case if such action would increase the Tax liability of any of the Target Companies for any Tax period, or the portion of any Straddle Period, that begins after the Closing Date or materially reduce any Tax attribute of the Target Companies;
(xii) settle or compromise any pending or threatened claim, litigation or other proceeding, other than settlements involving solely monetary damages or monetary compensations in an amount that, individually or in the aggregate, does not exceed USD 300,000;
(xiii) hire, or terminate the employment of, except for any of the causes contemplated in Article 160 of the Chilean Labor Code, any individual who is at the senior executive or officer level or above, it being understood, for these purposes, that any person (including any person at the manager (gerentes) level) receiving a base annual salary in excess of USD 125,000 is a senior executive or officer;
(xiv) (A) terminate, except for any of the causes contemplated in Article 160 of the Chilean Labor Code, the employment of any Employee who has entered into a retention agreement or arrangement with the Target Companies and/or Sellers’ Representative, (B) transfer any Employee out of the Target Companies or (C) transfer any individual in to the Target Companies;
(xv) adopt, enter into, amend, terminate or extend any Specified Contract labor agreement, union contract or collective bargaining agreement or other work rules or related agreements or arrangements with any labor union or other organization representing any Employee without complying fully with Section 5.12(f) (Employee and Retirement Benefit Arrangements) below;
(xvi) permit any insurance policy held by it or any member of the Sellers’ Group and naming it as a beneficiary or a loss payable payee to be cancelled or terminated without notice to the Purchasers, except policies which are replaced without diminution of or gaps in coverage;
(xvii) permit any Fund to pay, repurchase, discharge or satisfy any of its claims, liabilities or obligations (absolute, accrued, asserted or unasserted, contingent or otherwise), other than an Advisory Contract)the payment, discharge or satisfaction of claims, liabilities or obligations reflected or reserved against in, or enter into any Contract that would be a Specified Contract (other than an Advisory Contract) if entered into prior to contemplated by, the Fund Financial Statements or incurred in the Ordinary Course since the date hereofof reference of the Fund Financial Statements;
(xviii) enter into, terminate or amend or modify any of its Specified Contracts or waive, release or assign any material rights or material claims thereunderthereunder (in each case, in a manner that is materially adverse to the Target Business), other than in the Ordinary Course;
(xixix) amend(A) establish, terminate or revise any Advisory Contract or Side Letter to reduceadopt, waive or agree to offset any fee (including any applicable fee or Performance Fee) or reimburse any expenses payable under such Advisory Contract or Side Letter to any of the Target Companies or Funds or offer or commit to any Fund or Client any payment or any reduced fee, fee waiver, fee discount, rebate, reimbursement or similar arrangement or waive or reduce or agree to reduce any unfunded commitment of any investor in any Fund, or enter into or amend any Advisory Contract in respect of Retirement Benefit Arrangement or Benefits Plan, (B) pay any New Account other than with respect to such New Accounts on materially similar terms as to the Existing Advisory Contracts and in a manner consistent with past practice;
(xii) authorize bonus or make any material change in the respective accounting policies profit sharing or methods of any Target Company or Fund except as may be required by GAAP, IFRS or applicable Law, as applicable;
(xiii) subject similar payment to the Target Companies’ fiduciary duties to the Funds under applicable Law, change or agree to change in any material respect the investment policies of any Fund;
(xiv) sell, license, transfer or otherwise dispose of, or allow the expiration or lapse of, any material Intellectual Property owned by the Target Companies;
(xv) solicit or hire, or assist any other Person to solicit or hire, any Senior Employee to leave his or her employment with the Target Business or to accept any other position or employment with the Sellers or any Affiliate of the Sellers (other than the Target Companies);
(xvi) except as required to comply with any Benefits Plan or applicable Law, (A) increase the compensation or fringe benefits of any Company Employee (except for annual, promotion-related or merit-based increases in salary or hourly wage rates for Company Employees having an annual salary below €150,000, in the ordinary course consistent with past practice or with respect to Company Employees having an annual salary above €150,000, as set forth in Section 5.1(a)(xvi) of the Sellers’ Disclosure Letter), or the payment of accrued or earned but unpaid bonuses that is not in accordance with the terms of the applicable Retirement Benefit Arrangements or Benefits Plan, provided, however, that the aggregate 2010 bonus payments will not exceed or be materially less than the aggregate amount as set forth on Plans listed in Section 5.1(a)(xvi3.11(a) of the Sellers’ Disclosure Letter); (B) grant any new severance or termination pay to any Company Employee; (C) other than as set forth on Section 5.1(a)(xviRetirement Benefit Arrangements and Benefits Plans) of the Sellers’ Disclosure Letter hire or promote any Company Employee with an annual base salary in the Ordinary Course or (C) increase the amount of greater than €100,000the wages, other than to fill vacanciessalary, or terminate any such Company Employee other than for cause; (D) loan or advance any money commission opportunities, fringe benefits or other property to any Company Employee; compensation (E) other than as provided for in Section 5.6 or as set forth on Section 5.1(a)(xvi) of Sellers’ Disclosure Letter, establish, adopt, enter into, or terminate any Benefits Plan or Retirement Benefit Arrangement, or any plan, agreement, program, policy, trust, fund or other arrangement that would be a Company Benefits Plan or Retirement Benefit Arrangement if it were in existence as of the date of this Agreement, or amend any Benefits Plan or Retirement Benefit Arrangement so as to materially increase the obligations of any Target Company to fund any such Benefits Plan or Retirement Benefit Arrangement; (F) grant any equity or including equity-based awards; compensation, whether payable in stock, cash or (Gother property) deviate from the existing practices in dealing with the labor union or works councils covering Company Employees in any material respects;
(xvii) make or change any material non-routine Tax electionremuneration payable to, change an annual accounting period that applies solely for Tax purposes except as required by applicable Law provided that the Sellers’s Representative shall notify the Purchasers’ Representative as soon as reasonably practicable if it is relying on this exception, adopt or change any accounting method that applies solely for Tax purposes with respect to material Taxes except as required by applicable Law provided that the Sellers’ Representative shall notify the Purchasers’ Representative as soon as reasonably practicable if it is relying on this exception, enter into any closing agreement, settle or compromise any proceeding with respect to any material Tax claim or assessment relating to any of the Target Companies, surrender any right to claim a refund of material Taxes Employees (except as required by Law provided that the Sellers’ Representative shall notify the Purchasers’ Representative as soon as reasonably practicable if it is relying on this exception), or (b) file any amended material Tax Return (except as required by applicable Law provided that the Sellers’ Representative shall notify the Purchasers’ Representative as soon as reasonably practicable if it is relying on this exception), consent to any extension or waiver of the limitation period applicable to any material Tax claim or assessment relating to any of the Target Companies: (1) may provide routine, reasonable salary increases to Employees in the Ordinary Course in connection with the Target Companies’ customary employee review process; and (2) may renew or take any other similar action relating to the filing of any material Tax Return amend Retirement Benefit Arrangements or the payment of any material Tax, to the extent any such action listed in (b) is reasonably expected to materially adversely affect any member of the Purchasers’ Group;
(xviii) file a voluntary petition for bankruptcy;
(xix) reduce or agree to reduce any investors’ unfunded commitments in any Fund other than Benefits Plans to the extent required by the existing Fund Documentsterms thereof or by applicable Law);
(xx) initiate make any loans or threaten advances (other than advances to employees or consultants in the Ordinary Course) to any Litigation against other person, or, except as part of the investment portfolio, make capital contributions to, or investments in, any Client or any investor in any Fund; orother person;
(xxi) wind upmake or authorize any capital expenditure, terminate other than capital expenditures in the Ordinary Course that do not, individually or dissolve any Fund except a Terminated Fundin the aggregate, exceed USD 500,000 with respect to each Target Company;
(xxii) amend, modify or terminate any of the ING Insurance Investment Management Agreement, the ING Insurance Trademark License Agreement, the ING Insurance Non-compete Agreement or the Clarion Partners Non-Solicitation/Non-Competition Agreement. It being understood that, with respect to the prohibitions set forth in Sections 5.1(a)(i) to 5.1(a)(xxiiany Fund, amend, or grant or permit any waiver or deviation from, its investment guidelines (regardless of whether such amendment, waiver or deviation is permitted by its investment guidelines), or make any exceptions to such prohibition specified therein that does not require the approval of the Purchasers’ Representative shall be deemed to be investment other than in compliance with its investment guidelines;
(xxiii) except in the Ordinary Course. For the avoidance , grant or acquire, or agree to grant or acquire, any material Intellectual Property, or dispose of doubt the provisions set forth or permit to lapse any rights to any material Intellectual Property owned by a Target Company;
(xxiv) acquire or agree to acquire any material lease or sublease interest in this Section 5.1 do not apply to any real property, or restrict the activities exercise any termination option in a material lease or operations of sublease interest in real property held by any Fund or any Fund Subsidiary except with respect to subclauses (xiii) and (xxi) only to the extent that such provisions restrict the actions Target Company as of the managing memberdate hereof; or
(xxv) authorize any of, general partner or other Person controlling agree to take, whether in writing or otherwise, any Fund or Fund Subsidiaryof the foregoing actions.
(b) The Purchasers’ Representative will, promptly following the date of this Agreement, designate two (2) individuals from either of whom the relevant Sellers may seek written approval (by email being sufficient) to undertake any actions not permitted to be taken under this Section 5.1 as well as in respect of communications under Section 5.8 (Client Approvals) and will ensure that such Persons will respond, on behalf Conduct of the Purchasers’ Representative Target Business), which individuals shall use their commercially reasonable efforts to respond promptly to any such request for approval from Seller (by email being sufficient).
(c) The Sellers undertake to take all such actions as are required by Law to ensure that, from the Sellers’ Representative’s (date hereof until the Closing Date, the encaje of the Target Companies shall be funded in accordance with all applicable statutory or to regulatory requirements imposed by the relevant Sellers’) written requests within five (5) Business DaysSuperintendence of Pensions and the SVS.
Appears in 1 contract
Samples: Transaction Agreement (Banco Bilbao Vizcaya Argentaria, S.A.)
Conduct of the Target Business. (a) Except as set forth in Section 5.1 5.1(a) of the Sellers’ Disclosure Letter, between the date hereof and the Closing, the Sellers’ Representative shall cause the Target Companies and, with respect to matters related to Dutch Employees, ING Bank Personeel B.V. to (except in each case as referred to in Section 5.3 (Exceptions) or (z) as may be approved by the Purchasers’ Representative in writingwriting (except in the case of subsection (xi) below, such approval not to be unreasonably withheld, conditioned or delayed (except in the case of subsection (xi) belowdelayed)) (A) carry on the Target Business in the Ordinary Course, (B) use commercially reasonable endeavours efforts to preserve substantially intact the business organization of the Target Business and keep available the present services of the Company Employees, (C) defend all Litigation and (D) to preserve the goodwill and significant business relationships of the Target Companies with customers, suppliers and other Persons with which the Target Companies have significant business relations, in each case in the Ordinary Course, and the Sellers’ Representative shall cause the Target Companies and, with respect to matters related to Dutch Employees covered by subsections (x), (xv), and (xvi) below, ING Bank Personeel B.V.Companies, without limiting the generality of the foregoing, not to:
(i) acquire or agree to acquire any shares or other interest in any company, partnership or other venture (other than in another Target Company);
(ii) sell, pledge, transfer, dispose of, assign, encumber (other than Permitted Encumbrances), create, allot or issue, or grant an option to subscribe for, any share capital of or any interest in any Target Company or any rights with respect thereto, any security convertible into or representing a right to acquire such shares of any Target Company, or enter into any agreement, call or commitment of any character that would obligate it to do any of the foregoing, in each case, except as required to consummate the Transactions;
(iii) amend any material provision of the documents that establish legal existence or that govern the internal affairs of a Target Company, or of any material term of any outstanding security issued by any Target Company;
(iv) merge or consolidate any Target Company with any Person (other than another Target Company), or adopt a plan of complete or partial liquidation, dissolution, restructuring, recapitalization or other reorganization of any Target Company;
(v) other than in the Ordinary Course, form, organize or sponsor any Fund (other than forming, organizing and/or sponsoring a Permitted Fund on terms consistent with past practice)Fund, or make any material amendment or modification to the Fund Documents of any Adobe Fund;
(vi) initiate or settle any Litigation or other proceeding pending or threatened resulting in a payment in excess of $300,000 with respect to each Business Unit 250,000, or resulting in any material restriction on the operation of the Target Business;
(vii) authorize or make any new capital expenditure or series of related new capital expenditures, except such capital expenditures of less than $300,000 with respect to each Business Unit, 250,000 in the aggregate or that are in the Ordinary Course;
(viii) (A) incur any indebtedness for borrowed money or enter into any swap or other off-balance transactions or assume, guaranty, endorse or otherwise as an accommodation become responsible for the obligations of any other Person, in each case, other than Ordinary Course short-term borrowings in an amount not to exceed $300,000 with respect to each Business Unit, 250,000 in the aggregate or borrowings made among Target Companies, (B) other than in the Ordinary Course, sell or subject any of the material assets of any Target Company to any material Encumbrances (other than Permitted Encumbrances), (C) other than investments in marketable securities in the Ordinary Course, make any material loans, advances or capital contributions to, or investments in any other Person, except with another Target Company or (D) forgive any indebtedness for borrowed money;
(ix) enter into any Contract that would be a Related Party Contract if such Contract were entered into prior to the date hereof;
(x) other than in the Ordinary Course, modify, amend, terminate any Specified Contract (other than an Advisory Contract), or enter into any Contract that would be a Specified Contract (other than an Advisory Contract) if entered into prior to the date hereof, or waive, release or assign any material rights or claims thereunder;
(xi) amend, terminate or revise any Advisory Contract or Side Letter to reduce, waive or agree to offset any fee (including any applicable fee Applicable Fee or Performance Fee) or reimburse any expenses payable under such Advisory Contract or Side Letter to any of the Target Companies or Adobe Funds or offer or commit to any Adobe Fund or Client any payment or any reduced fee, fee waiver, fee discount, rebate, reimbursement or similar arrangement or waive or reduce or agree to reduce any unfunded commitment of any investor in any Fund, or enter into any Advisory Contract in respect of any New Account other than with respect to such New Accounts on materially similar terms as to the Existing Advisory Contracts and in a manner consistent with past practice;
(xii) authorize or make any material change in the respective accounting policies or methods of any Target Company or Adobe Fund except as may be required by GAAP, IFRS GAAP or applicable Law, as applicable;
(xiii) with respect to the IGR Fund, to the extent consistent with the Target Companies’ fiduciary duties, recommend that the IGR Fund authorize or make (A) (x) any distributions other than pursuant to distribution policies in effect on the date of this Agreement, (y) extraordinary distributions or redemptions, or (z) tender offers, or (B) encourage any shareholder to do or propose to do anything in subsection (xiii)(A);
(xiv) subject to the Target Companies’ fiduciary duties to the Adobe Funds under applicable Law, change or agree to change in any material respect the investment policies of any Adobe Fund;
(xivxv) sell, license, transfer or otherwise dispose of, or allow the expiration or lapse of, any material Intellectual Property owned by the Target Companies;
(xvxvi) solicit or hire, or assist any other Person to solicit or hire, any Senior Employee to leave his or her employment with the Target Business or to accept any other position or employment with the Sellers or any Affiliate of the Sellers (other than the Target Companies);
(xvixvii) except as required to comply with applicable Law or any Benefits Plan or applicable LawPlan, (A) increase the compensation or fringe benefits of any Company Employee (except for annual, promotion-related or merit-based increases in salary or hourly wage rates for Company Employees having an annual salary below €150,000$100,000, in the ordinary course consistent with past practice or with respect to Company Employees having an annual salary above €150,000$100,000, as set forth in Section 5.1(a)(xvi5.1(a)(xvii) of the Sellers’ Disclosure Letter), or the payment of accrued or earned but unpaid bonuses in accordance with the terms of the applicable Benefits Plan, provided, however, that the aggregate 2010 bonus payments will not exceed or be materially less than the aggregate amount as set forth on in Section 5.1(a)(xvi5.1(a)(xvii) of the Sellers’ Disclosure Letter); (B) grant any new severance or termination pay to any Company Employee; (C) other than as set forth on Section 5.1(a)(xvi5.1(a)(xvii) of the Sellers’ Disclosure Letter Letter, hire or promote any Company Employee with having an annual base salary of greater than €above $100,000, other than to fill vacancies, or terminate any such Company Employee other than for cause; (D) loan or advance any money or other property to any Company Employee; (E) other than as provided for in Section 5.6 or as set forth on Section 5.1(a)(xvi5.1(a)(xvii) of Sellers’ Disclosure Letter, establish, adopt, enter into, or terminate any Benefits Plan or Retirement Benefit Arrangement, or any plan, agreement, program, policy, trust, fund or other arrangement that would be a Company Benefits Plan or Retirement Benefit Arrangement if it were in existence as of the date of this Agreement, or amend any Benefits Plan or Retirement Benefit Arrangement so as to materially increase the obligations of any Target Company to fund any such Benefits Plan or Retirement Benefit Arrangement; or (F) grant any equity or equity-based awards; or (G) deviate from the existing practices in dealing with the labor union or works councils covering Company Employees in any material respects;
(xviixviii) (A) make or change any material non-routine Tax election, change an annual accounting period that applies solely for Tax purposes except as required by applicable Law provided that the Sellers’s Representative shall notify the Purchasers’ Representative as soon as reasonably practicable if it is relying on this exceptionLaw, adopt or change any accounting method that applies solely for Tax purposes with respect to material Taxes except as required by applicable Law provided that the Sellers’ Representative shall notify the Purchasers’ Representative as soon as reasonably practicable if it is relying on this exceptionLaw, enter into any closing agreement, settle or compromise any proceeding with respect to any material Tax claim or assessment relating to any of the Target Companies, surrender any right to claim a refund of material Taxes (except as required by Law applicable Law, provided that the Sellers’ Representative shall notify the Purchasers’ Representative as soon as reasonably practicable if it is when relying on this exception), or (bB) file any amended material Tax Return (except as required by applicable Law Law, provided that the Sellers’ Representative shall notify the Purchasers’ Representative of such action as soon as reasonably practicable if it is when relying on this exception), consent to any extension or waiver of the limitation period applicable to any material Tax claim or assessment relating to any of the Target Companies, or take any other similar action relating to the filing of any material Tax Return or the payment of any material Tax, to the extent any such action listed in (bB) is reasonably expected to materially adversely affect any member of the Purchasers’ Group;
(xviiixix) file a voluntary petition for bankruptcy;
(xix) reduce or agree to reduce any investors’ unfunded commitments in any Fund other than to the extent required by the existing Fund Documents;
(xx) initiate or threaten any Litigation against any Client or any investor in any Adobe Fund; or
(xxi) wind up, terminate or dissolve any Adobe Fund except an Excluded Fund or a Terminated Fund;
(xxii) amend, modify or terminate any of the ING Insurance Investment Management Agreement, the ING Insurance Trademark License Agreement, the ING Insurance Non-compete Agreement or the Clarion Partners Non-Solicitation/Non-Competition Agreement. It ; it being understood that, with respect to the prohibitions set forth in Sections 5.1(a)(i) to 5.1(a)(xxii5.1(a)(i)-(xxi), any exceptions exception to such prohibition specified therein that does not require the approval of the Purchasers’ Representative shall be deemed to be in the Ordinary Course. For the avoidance of doubt the provisions set forth in this Section 5.1 do not apply to or restrict the activities or operations of any Fund or any Fund Subsidiary except with respect to subclauses (xiiixiv) and (xxi) only only, to the extent that such provisions restrict the actions of the managing member, general partner or other Person controlling managing any Fund or Fund Subsidiary.
(b) The Purchasers’ Representative will, promptly following the date of this Agreement, designate two (2) individuals from either of whom the relevant Sellers may seek written approval to undertake any actions not permitted to be taken under this Section 5.1 as well as in respect of communications under Section 5.8 5.10 (Client Approvals) and will ensure that such Persons will respond, on behalf of the Purchasers’ Representative to the Sellers’ Representative’s (or to the relevant Sellers’) written requests within five (5) Business Daysin an expeditious manner.
Appears in 1 contract
Samples: Share Purchase Agreement (Cb Richard Ellis Group Inc)
