Interim Management. 4.1. The Seller, except as expressly contemplated by this Agreement or otherwise consented by the Purchaser, which consent shall not be unreasonably withheld, or disclosed to the Purchaser under Schedule 4.1., represents, warrants and agrees that: (a) during the period between June 30, 1999, and the Closing Date, the business of the Company has been and shall be conducted only in the ordinary course and in accordance with past practises, prudent and customary under the circumstances as well as in accordance with the law; (b) during the period between the signing of this Agreement and the Closing Date, without the prior written consent of Purchaser: (i) no "dirigenti" will be hired, appointed, promoted or dismissed by the Company; (ii) no employees, consultants, commercial agents or representatives of the Company shall be hired or dismissed, and none of the respective rights and obligations thereof have been or shall be modified, except in the ordinary course of business in accordance with past practices or as mandated by law or applicable national collective bargaining agreements. No shop-level collective labor agreement ("accordo integrativo aziendale") shall be entered into by the Company; (iii) no leases, real estate conveyances, licensing contracts or distribution agreements, mortgages, pledges, joint venture agreements, loans or credit agreements of the Company shall be made, amended or terminated. This provision applies to agreements having a value exceeding ITL 1,000,000,000 (one billion) for each agreement; (iv) no contracts or commitments shall be entered into by or on behalf of the Company that extend beyond the Closing Date for the period of six months thereafter and involve the purchase, sale, or encumbrance of fixed assets having an aggregate value of more than ITL 2,000,000,000 (two billion); (v) the Company shall not commence any litigation, except for those which are necessary to preserve the business or the rights of the Company, provided that the Purchaser shall be immediately informed thereof and kept fully informed of any development, as well as of any litigation brought by third parties against the Company; in addition, the Company shall not settle any threatened or pending litigation; (vi) no transaction shall take place between the Company, Finmeccanica or any of the Affiliates or any of the companies belonging to the IRI (Istituto per la Ricostruzione Industriale S.p. A.) Group, except transactions at arm's length or transactions which shall not be detrimental to the Company. 4.2. Notwithstanding any provision under Section 4.1., during the interim management period the Seller shall have the right to: (i) procure that any outstanding receivables and payables respectively due from and to Finmeccanica and/or any of the Affiliates be paid to the Company and paid by the Company, as the case may be; (ii) take any appropriate action necessary to implement the provisions under Sections 2.4., 2.5. and 2.10.; (iii) take any appropriate action to reduce the General Financial Debt(s) in excess of ITL 92,000,000,000 (ninety two billion); and (iv) take any appropriate action in order to cause ASI to purchase from Finmeccanica the real estate in Monfalcone as per Section 4.5.; (v) take any appropriate action in order to change the name of Ansaldo Deutschland GmbH into Ansaldo Industrial Systems GmbH. 4.3. The Parties agree that after the signing of the Agreement and until the Closing Date they shall conduct meetings to be held in principle on a weekly basis. Such meetings shall be attended by senior executives on behalf of either Party and are intended to inform the Purchaser of the activity conducted by the Company after the signing of the Agreement. 4.4. The Seller shall procure that all receivables and payables as identified in Schedule 4.4., respectively due from or to Finmeccanica and/or any of the Affiliates - which fall due on or 49 before the Closing Date - be paid to the Company or paid by the Company, as the case may be, not later than the Closing Date and/or be set off, in whole or in part. The Seller shall also procure that those receivables, among those identified in Schedule 4.4., due from Finmeccanica and/or any of the Affiliates, which will remain outstanding after the Closing Date, be paid to the Company when due according to their original terms. The Purchaser shall procure that those payables among those identified in Schedule 4.4., due from the Company to Finmeccanica and/or any of the Affiliates, which will remain outstanding after the Closing Date, be paid by the Company to Finmeccanica and/or the Affiliates when due according to their original terms. 4.5. The Seller shall procure that, on or before the Closing Date, ASI purchases from Finmeccanica the real estate in Monfalcone, as described in Schedule 4.5. hereto, free and clear from any mortgages, liens and encumbrances ("trascrizioni pregiudizievoli") which may be prejudicial to the inscription of mortgages by the Purchaser at a purchase price of ITL 9,000,000,000 (nine billion), plus VAT, to be paid by ASI at the Closing, as per Section 2.3., on the understanding that said amount of ITL 9,000,000,000 (nine billion) shall be included in the aggregate amount of the Financial Debt(s) Towards Finmeccanica and The Seller, as per Section 1.14..
Appears in 1 contract
Samples: Share Purchase Agreement (High Voltage Engineering Corp)
Interim Management. 4.1. The Seller4.1 Except for all activities which are necessary with regard to Tax Amnesty and Environmental Site Assessment, and except as expressly contemplated by this Agreement or otherwise consented by disclosed in the PurchaserDisclosure Letter, which or unless with the prior written consent shall of the Buyer (such consent not to be unreasonably withheldwithheld or delayed), or disclosed to the Purchaser under Schedule 4.1.Seller, represents, warrants and agrees that:
(a) during the period between June 30, 1999, 30 March 2003 inclusive and the Closing Completion Date, represents and agrees that and shall ensure the business following:
4.1.1 each of the Company has been and Companies’ business activities shall be conducted only in the ordinary and usual course of business and in accordance so as to maintain the same as going concerns;
4.1.2 no action shall be taken by the Seller, the Companies that may have a Material Adverse Effect on the business of the Companies taken as a whole;
4.1.3 no contracts unrelated to the usual course of business (including, but not limited to, licensing agreements, mortgages, pledges or joint venture agreements) shall be entered into, amended or terminated by any of the Companies;
4.1.4 no transaction, arrangement or agreement shall take place between any of the Companies and their Affiliates, except for transactions at arm’s length and consistent with past practisespractice, prudent and customary under nor any of the circumstances as well as in accordance with the lawterms of any existing transaction, arrangement or agreement shall be varied;
4.1.5 no existing loans or credit agreements shall be amended or terminated at the option of the Seller and no action shall be taken that could detriment the net financial position of the Companies in excess of Euro 2,000,000 (btwo million);
4.1.6 no increase or reduction of the share capital, and no mergers or de-mergers, of any of the Companies shall be approved;
4.1.7 no dividends, reserves or other extraordinary dividends shall be resolved or paid out by any of the Companies;
4.1.8 no compensation or other benefit (including, without limitation, basic salary, pension contributions, pension benefit, bonuses, commissions and benefits in kind) during to the period between directors and managers or external counsel of any of the signing Companies, other than those existing on the date hereof, shall be approved and no senior employee shall be engaged or dismissed (other than in circumstances justifying dismissal for just cause) or have his terms of employment materially altered and for the purposes of this Agreement and the Closing Dateclause, without the prior written consent “senior employee” shall mean a single employee with a gross salary in excess of Purchaser:
Euro 100,000 (iEuro one hundred thousand) no "dirigenti" will be hired, appointed, promoted or dismissed by the Companyper annum;
4.1.9 no asset involving a capital expenditure in excess of Euro 1,000,000 (iione million) no employees, consultants, commercial agents shall be acquired or representatives agreed to acquire or disposed or agreed to dispose of or leased or agreed to lease or licensed or agreed to licence by any of the Company Companies;
4.1.10 no litigation or arbitration proceedings shall be hired or dismissed, and none of the respective rights and obligations thereof have been or shall be modified, except commenced other than in relation to debt collection in the ordinary course of business in accordance with past practices or as mandated by law or applicable national collective bargaining agreements. No shop-level collective labor agreement ("accordo integrativo aziendale") any of the Companies;
4.1.11 no insurance policies shall be terminated or rendered void or voidable by any of the Companies;
4.1.12 no partnership, consortium, joint venture or any other incorporated association shall be formed or entered into by the Company;
(iii) no leases, real estate conveyances, licensing contracts or distribution agreements, mortgages, pledges, joint venture agreements, loans or credit agreements of the Company shall be made, amended or terminated. This provision applies to agreements having a value exceeding ITL 1,000,000,000 (one billion) for each agreement;
(iv) no contracts or commitments shall be entered into by or on behalf of the Company that extend beyond the Closing Date for the period of six months thereafter and involve the purchase, sale, or encumbrance of fixed assets having an aggregate value of more than ITL 2,000,000,000 (two billion);
(v) the Company shall not commence any litigation, except for those which are necessary to preserve the business or the rights of the Company, provided that the Purchaser shall be immediately informed thereof and kept fully informed of any development, as well as of any litigation brought by third parties against the Company; in addition, the Company shall not settle any threatened or pending litigation;
(vi) no transaction shall take place between the Company, Finmeccanica or any of the Affiliates Companies;
4.1.13 no charge, security, lien or encumbrance over any of the companies belonging assets of the Companies shall be granted, created or allowed to arise other than in the IRI ordinary course of business and in any case in excess of Euro 1,000,000 (Istituto per la Ricostruzione Industriale S.pone million),
4.1.14 no incorporation or liquidation of any subsidiary undertaking or intra-group transfer of assets (other than in the normal course of trading) or any share reorganisation shall be carried out or effected by any of the Companies; and
4.1.15 no material change in the nature or scope of the business of any of the Companies shall be made or permitted.
A.4.2 During the period between 30 March 2003 (inclusive) Groupand the Completion Date, except transactions at arm's length or transactions which shall not be detrimental to the Company.
4.2. Notwithstanding any provision under Section 4.1., during the interim management period the Seller shall notify the Buyer of any transaction falling under the ambit of Clause 4.1, which any of the Companies intends to carry out (the “Transaction”) and of any other event otherwise falling under the ambit of Clause 4.1. Within five Business Days from the notification by the Seller, the Buyer shall have the right to: (i) procure that any outstanding receivables and payables respectively due from and to Finmeccanica and/or any of the Affiliates be paid object in writing to the Company and paid by Transaction. It is hereby agreed that if the CompanyBuyer does not notify its objection to the Transaction to the Seller within such five Business Day period, as the case may be; (ii) take any appropriate action necessary to implement the provisions under Sections 2.4., 2.5. and 2.10.; (iii) take any appropriate action to reduce the General Financial Debt(s) in excess of ITL 92,000,000,000 (ninety two billion); and (iv) take any appropriate action in order to cause ASI to purchase from Finmeccanica the real estate in Monfalcone as per Section 4.5.; (v) take any appropriate action in order to change the name of Ansaldo Deutschland GmbH into Ansaldo Industrial Systems GmbH.
4.3. The Parties agree that after the signing of the Agreement and until the Closing Date they shall conduct meetings to be held in principle on a weekly basis. Such meetings Transaction shall be attended by senior executives on behalf of either Party and are intended to inform the Purchaser of the activity conducted by the Company after the signing of the Agreementdeemed approved.
4.4. The Seller shall procure that all receivables and payables as identified in Schedule 4.4., respectively due from or to Finmeccanica and/or any of the Affiliates - which fall due on or 49 before the Closing Date - be paid to the Company or paid by the Company, as the case may be, not later than the Closing Date and/or be set off, in whole or in part. The Seller shall also procure that those receivables, among those identified in Schedule 4.4., due from Finmeccanica and/or any of the Affiliates, which will remain outstanding after the Closing Date, be paid to the Company when due according to their original terms. The Purchaser shall procure that those payables among those identified in Schedule 4.4., due from the Company to Finmeccanica and/or any of the Affiliates, which will remain outstanding after the Closing Date, be paid by the Company to Finmeccanica and/or the Affiliates when due according to their original terms.
4.5. The Seller shall procure that, on or before the Closing Date, ASI purchases from Finmeccanica the real estate in Monfalcone, as described in Schedule 4.5. hereto, free and clear from any mortgages, liens and encumbrances ("trascrizioni pregiudizievoli") which may be prejudicial to the inscription of mortgages by the Purchaser at a purchase price of ITL 9,000,000,000 (nine billion), plus VAT, to be paid by ASI at the Closing, as per Section 2.3., on the understanding that said amount of ITL 9,000,000,000 (nine billion) shall be included in the aggregate amount of the Financial Debt(s) Towards Finmeccanica and The Seller, as per Section 1.14..
Appears in 1 contract
Samples: Agreement for the Sale and Purchase of Interests (Galey & Lord Inc)
Interim Management. 4.1. The Seller, except as expressly contemplated by this Agreement or otherwise consented by the Purchaser, which consent shall not be unreasonably withheld, or disclosed to the Purchaser under Schedule 4.1., represents, warrants and agrees that:
(a) during the period between June 30, 1999, and the Closing Date, the business of the Company has been and shall be conducted only in the ordinary course and in accordance with past practises, prudent and customary under the circumstances as well as in accordance with the law;
(b) during the period between the signing of this Agreement and the Closing Date, without the prior written consent of Purchaser:
(i) no "dirigenti" will be hired, appointed, promoted or dismissed by the Company;
(ii) no employees, consultants, commercial agents or representatives of the Company shall be hired or dismissed, and none of the respective rights and obligations thereof have been or shall be modified, except in the ordinary course of business in accordance with past practices or as mandated by law or applicable national collective bargaining agreements. No shop-level collective labor agreement ("accordo integrativo aziendale") shall be entered into by the Company;
(iii) no leases, real estate conveyances, licensing contracts or distribution agreements, mortgages, pledges, joint venture agreements, loans or credit agreements of the Company shall be made, amended or terminated. This provision applies to agreements having a value exceeding ITL 1,000,000,000 (one billion) for each agreement;
(iv) no contracts or commitments shall be entered into by or on behalf of the Company that extend beyond the Closing Date for the period of six months thereafter and involve the purchase, sale, or encumbrance of fixed assets having an aggregate value of more than ITL 2,000,000,000 (two billion);
(v) the Company shall not commence any litigation, except for those which are necessary to preserve the business or the rights of the Company, provided that the Purchaser shall be immediately informed thereof and kept fully informed of any development, as well as of any litigation brought by third parties against the Company; in addition, the Company shall not settle any threatened or pending litigation;
(vi) no transaction shall take place between the Company, Finmeccanica or any of the Affiliates or any of the companies belonging to the IRI (Istituto per la Ricostruzione Industriale S.p.
A.) Group, except transactions at arm's length or transactions which shall not be detrimental to the Company.
4.2. Notwithstanding any provision under Section 4.1., during the interim management period the Seller shall have the right to: (i) procure that any outstanding receivables and payables respectively due from and to Finmeccanica and/or any of the Affiliates be paid to the Company and paid by the Company, as the case may be; (ii) take any appropriate action necessary to implement the provisions under Sections 2.4., 2.5. and 2.10.; (iii) take any appropriate action to reduce the General Financial Debt(s) in excess of ITL 92,000,000,000 (ninety two billion); and (iv) take any appropriate action in order to cause ASI to purchase from Finmeccanica the real estate in Monfalcone as per Section 4.5.; (v) take any appropriate action in order to change the name of Ansaldo Deutschland GmbH into Ansaldo Industrial Systems GmbH.
4.3. The Parties agree that after the signing of the Agreement and until the Closing Date they shall conduct meetings to be held in principle on a weekly basis. Such meetings shall be attended by senior executives on behalf of either Party and are intended to inform the Purchaser of the activity conducted by the Company after the signing of the Agreement.
4.4. The Seller shall procure that all receivables and payables as identified in Schedule 4.4., respectively due from or to Finmeccanica and/or any of the Affiliates - which fall due on or 49 before the Closing Date - be paid to the Company or paid by the Company, as the case may be, not later than the Closing Date and/or be set off, in whole or in part. The Seller shall also procure that those receivables, among those identified in Schedule 4.4., due from Finmeccanica and/or any of the Affiliates, which will remain outstanding after the Closing Date, be paid to the Company when due according to their original terms. The Purchaser shall procure that those payables among those identified in Schedule 4.4., due from the Company to Finmeccanica and/or any of the Affiliates, which will remain outstanding after the Closing Date, be paid by the Company to Finmeccanica and/or the Affiliates when due according to their original terms.
4.5. The Seller shall procure that, on or before the Closing Date, ASI purchases from Finmeccanica the real estate in Monfalcone, as described in Schedule 4.5. hereto, free and clear from any mortgages, liens and encumbrances ("trascrizioni pregiudizievoli") which may be prejudicial to the inscription of mortgages by the Purchaser at a purchase price of ITL 9,000,000,000 (nine billion), plus VAT, to be paid by ASI at the Closing, as per Section 2.3., on the understanding that said amount of ITL 9,000,000,000 (nine billion) shall be included in the aggregate amount of the Financial Debt(s) Towards Finmeccanica and The Seller, as per Section 1.14..
Appears in 1 contract
Samples: Share Purchase Agreement (High Voltage Engineering Corp)
Interim Management. 4.1. The SellerDuring the period from the Signing Date through to and including the Closing Date, except as the Shareholders shall cause the Company and the dAF-Consolidated Group to conduct the Business materially in the ordinary and usual course consistent with past practices, in particular, without limitation to the foregoing, unless the Purchaser expressly contemplated by this Agreement or consents otherwise consented by the Purchaser, (which consent shall not be unreasonably withheld), or disclosed to the Purchaser under Schedule 4.1., represents, warrants and agrees thatto:
(a) during the period between June 308.4.1 maintain, 1999, and the Closing Date, the business of the Company has been and shall be conducted only in the ordinary course all material respects and in accordance with past practisespractice, prudent the working order and customary under the circumstances as well as in accordance with the lawcondition of their properties and assets;
(b) during 8.4.2 maintain the period between Books and Records of the signing of this Agreement Company and the Closing DatedAF-Consolidated Group in the usual, without regular and ordinary manner;
8.4.3 continue to conduct their businesses in the prior written consent ordinary course materially consistent with past practice, including but not limited to using all commercially reasonable efforts to preserve the business organization and reputations of Purchaserthe Company and the dAF-Consolidated Group and continuing all current sales, marketing and promotional activities relating to the Business, and abstain from entering into any transaction other than materially in the ordinary and usual course of business;
8.4.4 use commercially reasonable efforts to continue to maintain existing business relationships and goodwill with suppliers, lessees and other customers; and
8.4.5 use commercially reasonable efforts to keep available the services of their present officers and employees, it being understood that neither the Sellers, nor the Company nor the dAF-Consolidated Group shall be obliged to offer benefits not consistent with past practices. For the avoidance of doubt, it is agreed that inter alia the following matters shall be deemed to be conducted in the ordinary and usual course of business and not to constitute a Material Adverse Effect:
(i) no "dirigenti" will be hired, appointed, promoted or dismissed by accepting deliveries of Aircraft Assets in accordance with the Companyterms of the Forward Order;
(ii) no employees, consultants, commercial agents or representatives of exercising the Company shall be hired or dismissed, and none of cancellation options under the respective rights and obligations thereof have been or shall be modified, except in the ordinary course of business in accordance with past practices or as mandated by law or applicable national collective bargaining agreements. No shop-level collective labor agreement ("accordo integrativo aziendale") shall be entered into by the Company;Forward Order; and
(iii) no leases, real estate conveyances, licensing contracts or distribution agreements, mortgages, pledges, joint venture agreements, loans or credit agreements incurring expenditure in connection with the preparation and implementation of the Company transactions contemplated under this Agreement, provided, however, that the provisions set forth in Section 8.2.4 hereof and of Sections 2(m) and 16 of Exhibit 5.1 shall remain unaffected. It is being understood that the Shareholders shall be madedeemed to have performed their obligations under this Section 8.4 by passing the shareholders’ resolution attached as Exhibit 8.1 without undue delay after the Signing Date, amended a copy of such resolution to be sent by registered mail or terminated. This provision applies personally handed over to agreements having a value exceeding ITL 1,000,000,000 (one billion) for each agreement;
(iv) no contracts or commitments shall be entered into by or on behalf of the Company that extend beyond the Closing Date for the period of six months thereafter and involve the purchaseMr. Xxxx Xxxxxx, sale, or encumbrance of fixed assets having an aggregate value of more than ITL 2,000,000,000 (two billion);
(v) the Company shall not commence any litigation, except for those which are necessary to preserve the business or the rights as chairman of the Company’s supervisory board, provided that and Xxxxx Xxxxxxxxx and Xxxxxxxx Loechteken as members of the management board as soon as possible (unverzüglich) after passing of such resolution. If the Purchaser shall be immediately informed thereof and kept fully informed notifies the Sellers of any developmentnon-compliance by management with such resolution Sellers shall, as well as of any litigation brought by third parties against the Company; in additionif such complaints are substantiated, the Company shall not settle any threatened or pending litigation;
(vi) no transaction shall take place between the Companydiscuss with Purchaser appropriate steps, Finmeccanica or any of the Affiliates or any of the companies belonging if any, which could be taken to the IRI (Istituto per la Ricostruzione Industriale S.p.
A.) Group, except transactions at arm's length or transactions which shall not be detrimental to the Company.
4.2. Notwithstanding any provision under Section 4.1., during the interim management period the Seller shall have the right to: (i) procure that any outstanding receivables and payables respectively due from and to Finmeccanica and/or any of the Affiliates be paid to the Company and paid by the Company, as the case may be; (ii) take any appropriate action necessary to implement the provisions under Sections 2.4., 2.5. and 2.10.; (iii) take any appropriate action to reduce the General Financial Debt(s) in excess of ITL 92,000,000,000 (ninety two billion); and (iv) take any appropriate action in order to cause ASI to purchase from Finmeccanica the real estate in Monfalcone as per Section 4.5.; (v) take any appropriate action in order to change the name of Ansaldo Deutschland GmbH into Ansaldo Industrial Systems GmbH.
4.3address such non-compliance. The Parties agree that after the signing supervisory board of the Agreement Company may between the Signing Date and until the Closing Date they shall conduct meetings to be held in principle resolve on a weekly basis. Such meetings shall be attended by senior executives on behalf the granting of either Party and are intended to inform the Purchaser of the activity conducted incentives (payable by the Company after following the signing of Closing) to Xx. Xxxxxxxxx and Mr. Loechteken under the Agreement.
4.4. The Seller shall procure that all receivables and payables as identified in Schedule 4.4., respectively due from or to Finmeccanica and/or any of the Affiliates - which fall due on or 49 before the Closing Date - be paid debis AirFinance B.V. Managing Directors Incentive Plan subject to the Company or paid by the Company, terms as the case may be, not later than the Closing Date and/or be set off, laid down in whole or in part. The Seller shall also procure that those receivables, among those identified in Schedule 4.4., due from Finmeccanica and/or any of the Affiliates, which will remain outstanding after the Closing Date, be paid to the Company when due according to their original terms. The Purchaser shall procure that those payables among those identified in Schedule 4.4., due from the Company to Finmeccanica and/or any of the Affiliates, which will remain outstanding after the Closing Date, be paid a letter dated December 2004 by the Company to Finmeccanica and/or each of the Affiliates when due according to their original terms.
4.5. The Seller shall procure thataforementioned Persons, on or before the Closing Date, ASI purchases from Finmeccanica the real estate in Monfalcone, as described in Schedule 4.5. hereto, free and clear from any mortgages, liens and encumbrances a copy of such letter ("trascrizioni pregiudizievoli"excluding its attachments) which may be prejudicial has been furnished to the inscription of mortgages by the Purchaser at a purchase price of ITL 9,000,000,000 (nine billion), plus VAT, to be paid by ASI at the Closing, as per Section 2.3Purchaser., on the understanding that said amount of ITL 9,000,000,000 (nine billion) shall be included in the aggregate amount of the Financial Debt(s) Towards Finmeccanica and The Seller, as per Section 1.14..
Appears in 1 contract
Interim Management. 4.1. The Seller, except as expressly (a) Except (i) for the transactions contemplated by under this Agreement or otherwise in the Transaction Documents, (ii) as permitted or contemplated under this Agreement (including, without limitation, in relation to the Permitted Leakages and to actions required and/or related to the repayment or redemption (as applicable) under Section 4.1), (iii) as required to comply with any applicable Laws or Orders, (iv) as provided under any binding agreement to which any Group Company is a party as of the Signing Date, and as required to comply with the same, (v) as Fairly Disclosed in the Disclosed Information, (vi) as permitted under Schedule 4.4(a), or (vii) as consented upon in writing by the Purchaser (such consent not to be unreasonably withheld) – it being understood and agreed that all of the above exceptions and qualifications under points (i) to (vii) qualify, limit and apply to any and all of the Seller’s commitments under this Section 4.4 – the Seller shall cause that, during the Interim Period, the Group Companies will be managed in their ordinary course of business consistent with past and current practice and in the manner the Business was conducted up to, and including, the Signing Date. Without prejudice to the generality of the foregoing, the Seller shall procure that, during the Interim Period, the Group Companies shall:
(i) not delay or accelerate the payment of any amount due to, or by, suppliers, customers, agents and distributors of the same or agree to any extension or acceleration of the payment terms otherwise applicable to such suppliers, customers, agents and distributors, outside the ordinary course of business consistent with past practice;
(ii) not fail to observe, in all material respect, any term and conditions of, or waive any rights under, any Material Contracts, outside the ordinary course of business consistent with past practice;
(iii) not terminate, withdraw from or materially amend any of the Material Contracts to which the Group Companies are a party;
(iv) not terminate, suspend, materially amend or not renew any material permit, licence, authorization and certifications and not suspend the payment of any Taxes or duties required for keeping them in place;
(v) not amend their by-laws;
(vi) not issue or redeem capital stock, notes, bonds or other securities or grant any stock options, warrants or similar rights over their capital and shall not change the composition of their shareholding;
(vii) not declare, make or pay any dividend or other distribution or do or allow to be done anything which renders their respective financial position less favourable than the relevant one as at the Signing Date;
(viii) not merge with, enter into a consolidation with, or acquire any interest in, any Person;
(ix) not acquire any division or line of business of any Person having a value exceeding Euro 500,000 (five hundred thousand/00) per transaction;
(x) not enter into any partnership agreement, joint venture agreement, profit sharing arrangement or other alliance of any nature whatsoever nor create any subsidiary;
(xi) not wind-up, demerge or approve or carry out any voluntary liquidation, with the exception of the liquidation of Lima Orthopaedics South Africa Pty Ltd, Xxxx Xx S.p.A. in liquidazione and Tasfiye Halinde Lima Turkey Ortopedi A.Ş.;
(xii) not change any of the accounting or Tax principles applied by the same up to the Signing Date, including those applied in the preparation of the financial statements;
(xiii) not approve new capital expenditures or commitments in excess of those provided under the business plan made available in the Data Room or exceeding Euro 500,000 (five hundred thousand/00) individually;
(xiv) not acquire, dispose of, lease assets (including real estate assets) with value in excess of Euro 100,000 (one hundred thousand/00) per each transaction;
(xv) not enter into or materially amend any loans or credit agreements or financial commitments, or incur any new indebtedness, for values in excess of Euro 500,000 (five hundred thousand/00) individually;
(xvi) not assume any liability, nor enter into any agreement which may give rise to any such liability, for values in excess of Euro 500,000 (five hundred thousand/00) individually;
(xvii) not create any real rights (diritti reali) over their assets or give any guarantee, indemnity or commitment to secure an obligation to a third party for an amount or value in excess of Euro 500,000 (five hundred thousand/00) individually;
(xviii) not, at any title whatsoever, borrow any money from the Seller and its Affiliates (including, among others, through shareholders’ loans) or lend to the Seller or its Affiliates;
(xix) not grant or create any Encumbrance or issue any security undertaking whereby it would assume liability in lieu of any third party or give any guarantee, indemnity, commitment to secure an obligation of the same, in each case except as required under the Existing Main Financing Documentation and/or other existing agreements and/or in the ordinary course of business consistent with past practice;
(xx) not amend or terminate the employment agreement with any key employee or hire any new key employee in each case having a remuneration (RAL) higher than Euro 200,000 (two hundred thousand/00) per year, except in case of replacement due to voluntary resignations;
(xxi) not amend or terminate any agency or similar agreement or entering into new agency or similar agreements providing for a minimum turnover higher than Euro 100,000 (one hundred thousand/00) per year;
(xxii) not amend, terminate or create any pension, health, welfare or incentive plan or enter into any new local labour agreement, unless required by applicable Laws and/or applicable collective agreements;
(xxiii) not revoke, appoint or replace any of the current members of the management, control and supervisory bodies, except in case of voluntary resignations or natural termination of the office;
(xxiv) not waive or settle any pending or threatened claim or litigation (A) having a value higher than Euro 300,000 (three hundred thousand/00) individually or (B) which is material for the Business;
(xxv) not terminate, discontinue, close of any plant or facility for the business operation;
(xxvi) not agree or commit to do any of the foregoing.
(b) In the event the Company and/or the Subsidiaries intend to agree or carry out any of the actions referred to in Section 4.4(a) during the Interim Period, the Seller shall request the prior written consent of the Purchaser, providing the same with all necessary information and supporting documentation in connection thereto, which consent shall not be unreasonably withheld, withheld or disclosed to delayed. In the event the Purchaser under Schedule 4.1.fails to object in writing to Seller’s request within and no later than 5 (five) Business Days, represents, warrants and agrees that:
(a) during the period between June 30, 1999, and the Closing Date, the business of the Company has been and shall be conducted only in the ordinary course and in accordance with past practises, prudent and customary under the circumstances as well as in accordance with the law;
(b) during the period between the signing of this Agreement and the Closing Date, without the prior written consent of Purchaser:
(i) no "dirigenti" will be hired, appointed, promoted or dismissed by the Company;
(ii) no employees, consultants, commercial agents or representatives of the Company shall be hired or dismissed, and none of the respective rights and obligations thereof have been or shall be modified, except in the ordinary course of business in accordance with past practices or as mandated by law or applicable national collective bargaining agreements. No shop-level collective labor agreement ("accordo integrativo aziendale") shall be entered into by the Company;
(iii) no leases, real estate conveyances, licensing contracts or distribution agreements, mortgages, pledges, joint venture agreements, loans or credit agreements of the Company shall be made, amended or terminated. This provision applies to agreements having a value exceeding ITL 1,000,000,000 (one billion) for each agreement;
(iv) no contracts or commitments shall be entered into by or on behalf of the Company that extend beyond the Closing Date for the period of six months thereafter and involve the purchase, sale, or encumbrance of fixed assets having an aggregate value of more than ITL 2,000,000,000 (two billion);
(v) the Company shall not commence any litigation, except for those which are necessary to preserve the business or the rights of the Company, provided that the Purchaser shall be immediately informed thereof deemed to have approved the proposed action for all purposes hereunder and kept fully informed the relevant Group Company shall be free to carry out or perform the same. For purposes of this Section 4.4, notices may be given by electronic mail as provided for in Section 14.10.
(c) During the Interim Period, the Seller shall provide, and shall procure that the Group Companies provide, to the Purchaser and its Affiliates and Representatives – upon the Purchaser’s written request – reasonable access to the directors and key employees, books and records relating to the conduct of the Business as the Purchaser may reasonably request, to the extent that this occurs in compliance with the Laws.
(d) Without prejudice to Section 4.4(e) below, the Seller shall indemnify the Purchaser and/or, at the Purchaser’s sole discretion, any Group Company, in respect of any developmentLosses incurred or suffered by the Purchaser and/or any Group Company as a consequence of any breach of any covenant and obligation upon the Seller under Section 4.4(a). The indemnification obligations set forth in this Section 4.4(d) are the sole remedy available in relation to any breach by the Seller of any covenant and obligation upon the Seller under Section 4.4(a), without prejudice to Section 4.4(e); therefore, without prejudice to Section 4.4(e): (i) it shall be excluded any other right, action, remedy, defense, exception, claim or means of protection however available (also pursuant to any applicable Law) on any party in relation thereto; and (ii) the Purchaser shall not have the right to rescind or terminate this Agreement (including under Article 1467 of the Italian Civil Code) or – following the fulfillment of the Conditions Precedent (or the waiver in writing by the Parties pursuant to this Agreement) – refuse to effect Completion or perform its obligations set forth under this Agreement, prior to, on or after the Completion Date, in the event of a breach of any covenant and obligation upon the Seller under Section 4.4(a).
(e) In case of material breach of any of the obligations of the Seller provided under Section 4.4(a)(v), 4.4(a)(vi), 4.4(a)(viii),4.4(a)(xi) and 4.4(a)(xix) the Purchaser is entitled to terminate before Completion – unless the breach has been cured by the Seller to the Purchaser’s reasonable satisfaction – with immediate effect, this Agreement pursuant to Article 1456 of the Italian Civil Code. In this event: (i) except for this Section 4.4(e), Sections 14, 15, 16 and 17, as well as the provisions of any litigation brought by third parties against the Company; this Agreement that, in additionaccordance with their terms or their nature, the Company shall not settle any threatened or pending litigation;
(vi) no transaction shall take place between the Company, Finmeccanica or any of the Affiliates or any of the companies belonging survive to the IRI (Istituto per la Ricostruzione Industriale S.p.
A.) Group, except transactions at arm's length termination of this Agreement or transactions which shall not be detrimental to the Company.
4.2. Notwithstanding any provision under Section 4.1., during the interim management period the Seller shall have the right to: (i) procure that any outstanding receivables and payables respectively due from and to Finmeccanica and/or any ceasing of the Affiliates be paid to the Company and paid by the Company, as the case may be; (ii) take any appropriate action necessary to implement the provisions under Sections 2.4., 2.5. and 2.10.; (iii) take any appropriate action to reduce the General Financial Debt(s) in excess of ITL 92,000,000,000 (ninety two billion); and (iv) take any appropriate action in order to cause ASI to purchase from Finmeccanica the real estate in Monfalcone as per Section 4.5.; (v) take any appropriate action in order to change the name of Ansaldo Deutschland GmbH into Ansaldo Industrial Systems GmbH.
4.3. The Parties agree that after the signing of the Agreement and until the Closing Date they shall conduct meetings to be held in principle on a weekly basis. Such meetings shall be attended by senior executives on behalf of either Party and are intended to inform the Purchaser of the activity conducted by the Company after the signing of the Agreement.
4.4. The Seller shall procure that all receivables and payables as identified in Schedule 4.4., respectively due from or to Finmeccanica and/or any of the Affiliates - which fall due on or 49 before the Closing Date - be paid to the Company or paid by the Company, as the case may be, not later than the Closing Date and/or be set off, in whole or in part. The Seller shall also procure that those receivables, among those identified in Schedule 4.4., due from Finmeccanica and/or any of the Affiliatesits effects, which will remain outstanding after in full force and binding between the Closing DateParties, be paid all the provisions of this Agreement shall lapse and cease to have effect; but (ii) neither the Company when due according lapsing of those provisions nor their ceasing to their original terms. The Purchaser have effect shall procure that those payables among those identified in Schedule 4.4., due from the Company to Finmeccanica and/or affect any remedy or right of the AffiliatesPurchaser in accordance with any applicable Law and/or this Agreement (including, which will remain outstanding after without limitation, its ability to claim damages) in respect of non-performance of the Closing Date, be paid by the Company obligations included under Sections 14.5 and 14.6 below falling due for performance prior to Finmeccanica and/or the Affiliates when due according to their original termssuch lapse and cessation.
4.5. The Seller shall procure that(f) For the avoidance of doubts, on or before the Closing Date, ASI purchases from Finmeccanica the real estate in Monfalcone, as described in actions contemplated by Schedule 4.5. hereto, free 3.1(d) and clear from any mortgages, liens and encumbrances ("trascrizioni pregiudizievoli") which may be prejudicial to the inscription of mortgages by the Purchaser at a purchase price of ITL 9,000,000,000 (nine billion), plus VAT, to be paid by ASI at the Closing, as per Section 2.3., on the understanding that said amount of ITL 9,000,000,000 (nine billion) Schedule 9.1 shall be included in deemed as approved for the aggregate amount purposes of the Financial Debt(sSections 4.4(a) Towards Finmeccanica and The Seller4.4(b) and, as per therefore, shall not be considered a breach of Section 1.14..4.4(a).
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