PERIOD BEFORE COMPLETION. (a) Until Completion, unless the Purchaser otherwise agrees in writing or unless permitted or required by another provision of this Agreement (including to satisfy a condition) or as required by law, the Company will and Nyrstar will cause to the Company to:
(i) carry on the Business in a prudent, business-like and efficient manner and maintain the Assets in the normal course and consistent with past practice, including using reasonable efforts to preserve the goodwill of the Business and maintain the Assets in good standing (to the extent applicable) and ensuring there is no cause that may trigger the termination of the Mineral Rights or Permits;
(ii) take all necessary corporate action, steps and proceedings to approve or authorize, validly and effectively, the execution and delivery of this Agreement and the other agreements and documents contemplated hereby and the completion of the transactions and transfer of the Purchased Shares to the Purchaser;
(iii) provide the Purchaser with copies of any and all material notices, documents and correspondence received or sent by it or to any Governmental Body in respect of the Business or the Assets, or the arrangements contemplated hereby;
(iv) advise the Purchaser in writing of any material change of which it has knowledge in the condition (financial or otherwise) of the Company or the Assets or Business;
(v) cooperate in obtaining all necessary and desirable consents and regulatory approvals in connection with the transactions contemplated herein;
(vi) request that the Company’s employees take all vacation time to the extent that they are entitled to do so under their employment arrangements prior to Completion, provided that the Company need not make such request if it would interfere with the Company’s operations during the period between execution of this Agreement and Completion and provided that the Company will not be required to make any request where it has a reasonable belief that such request would be contrary to Applicable Law or any employment agreement in effect with an employee;
(vii) accurately record and maintain the Company’s Books and Records in accordance with all applicable legal requirements.
(b) Until Completion, unless the Purchaser otherwise agrees in writing or unless permitted or required by another provision of this Agreement (including to satisfy a condition) or as required by law, the Company will not and Nyrstar will not permit the Company to:
(i) increase, reduce or otherwise al...
PERIOD BEFORE COMPLETION. 9.1 Between the Signing Date and Completion, the Company will carry on its business in the ordinary course, as carried out on the Signing Date, in all material respects.
9.2 From the Signing Date until Completion, the Company shall not, and, in respect of sub-sections (a), (c) and (d) only, shall procure that each of its Affiliates shall not (unless otherwise approved in writing in advance by Waha):
(a) enter into any acquisition, disposal or joint venture of a value of greater than US$250 million;
(b) issue any shares or securities which confer on the holder the right to vote on matters at a meeting of the Company’s shareholders, or grant any rights to subscribe for or convert securities into such shares or securities, including pursuant to a transaction that would otherwise be prohibited by sub-section (a) above, other than the issue of shares by the Company pursuant to the exercise of any employee share options, rights to acquire shares or share awards outstanding as set out in Schedule 4;
(c) do anything that would be likely to jeopardize the listing of Ordinary Shares on the New York Stock Exchange;
(d) fail to comply with all applicable laws and regulations except to the extent a failure to do so would not cause a Material Adverse Effect;
(e) make any material change to its constitutional documents or corporate governance rules and guidelines;
(f) declare or pay any dividends or other distributions;
(g) make any material change to the scope or nature of its business;
(h) consolidate, combine, redeem, reclassify or repurchase any shares, securities convertible into shares or carrying a right to subscribe or acquire shares or securities which confer on the holder the right to vote on matters at a meeting of the Company’s shareholders; or
(i) publicly announce any intention to do any of the things set out in this Section 9.
PERIOD BEFORE COMPLETION. 6.1 The Vendor undertakes to and covenants with the Purchaser that it will procure that, between the date of this Agreement and Completion, without the prior written consent of the Purchaser (in the case of Clauses 6.1.5, 6.1.7 and 6.1.12, such consent not to be unreasonably withhold or delayed and in the case of the all the other sub-clauses of this Clause 6.1, such consent to be given in the absolute discretion of the Purchaser), no member of the Target Group shall:
6.1.1 enter into, modify or terminate any contract deemed material by the Purchaser other than in the ordinary course of business (other than pursuant to the terms of this Agreement);
6.1.2 dispose of any material part of its business or undertaking or (otherwise than in the ordinary course of trading) dispose of or acquire any business or undertaking (otherwise that in the ordinary course of trading) nor enter into any joint venture arrangement or agreement or partnership;
6.1.3 knowingly act or fail to act so as to allow any of its Business Intellectual Property to lapse;
6.1.4 knowingly take or omit to take any action which would allow any licence of any Business Intellectual Property to be varied in any material respect or terminated;
6.1.5 save as provided for by this Agreement, discharge or redeem any Encumbrance over any of its assets or create or allow to subsist any Encumbrance over any of its assets except:
6.1.5.1 which shall have arisen in the ordinary course under either normal retention of title clauses, in supply contracts or being liens arising by operation of law; and
6.1.5.2 subsisting Encumbrances disclosed in the Disclosure Letter;
6.1.6 acquire any material asset on lease or hire-purchase or contract-hire or deferred payment terms (except for normal trade credit);
6.1.7 incur any capital expenditure or enter into any capital commitment in excess of £5,000 for each individual item and £50,000 in aggregate;
6.1.8 amend the terms of its borrowings or create or incur any borrowing and for the purposes of this Clause 6.1.8 “borrowing” shall include indebtedness in the nature of borrowing;
PERIOD BEFORE COMPLETION. 5.1 The Seller shall ensure that so far as within its control, during the period beginning on the signing of this Agreement and ending at Completion, no Group Company and no member of the Seller’s Group so far as it carries on the Business, shall without the prior written consent of the Buyer (such consent not to be unreasonably withheld or delayed):
5.1.1 in any material respect depart from the ordinary course of its day-to-day trading or alter the scope of its operations;
5.1.2 allot, issue, redeem or purchase any shares other than for the purposes of satisfying the Transfer Conditions;
5.1.3 grant, issue or redeem any mortgage, charge, debenture or other security;
5.1.4 employ any person as an employee at an annual salary exceeding €50,000 or terminate or give notice to terminate (other than in circumstances justifying summary dismissal) the employment of any employee with an annual salary in excess of that level;
5.1.5 enter into any material agreement or materially change the terms of any material agreement to which it is a party at the date of this Agreement, or terminate or give notice to terminate any such agreement, except in either case in the ordinary course of trading;
5.1.6 enter into any agreement or transaction with the Seller or any member of the Seller’s Group or pay any management charge or other fee to the Seller or any member of its Group other than any management charges as have been paid in the three month period prior to the date of this Agreement;
5.1.7 pass any resolution of its shareholders other than ordinary business at an annual general meeting;
5.1.8 declare, make or pay any dividend or other distribution;
5.1.9 incur any capital expenditure exceeding €10,000 in any individual case;
5.1.10 incur or assume any indebtedness other than in the ordinary course of trading, and other than any Shareholder Debt;
5.1.11 sell or otherwise dispose of any interest in, or grant any third party rights in respect of, any of its material assets except in the ordinary course of trading; or
5.1.12 agree, conditionally or otherwise, to do any of those activities.
5.2 Not less than two Business Days prior to the Completion Date, the Seller shall give the Buyer written notice of the amount of the Shareholder Debt.
5.3 To the extent not previously delivered, within 5 Business Days of the date of this Agreement, the Buyer shall deliver to the Seller a legal opinion from the Buyer’s US attorneys in form and substance reasonably acceptable to the Selle...
PERIOD BEFORE COMPLETION. 2.11.1 During the period prior to Completion, the Vendor will use its reasonable endeavours to maintain and protect the Business Assets in their condition existing at the time the Purchaser last undertook a site visit to the Mine prior to the date of this agreement.
2.11.2 During the period prior to Completion and subject to clauses 2.11.3 and 2.11.4, the Vendor will implement and follow the Agreed Care and Maintenance Program in relation to the Business Assets.
2.11.3 For the avoidance of doubt, the parties agree that the Agreed Care and Maintenance Program will not require the Vendor to:
(a) incur any capital expenditure; or
(b) improve the condition or any of the Business Assets from their condition as at the date referred to in clause 2.11.1.
2.11.4 If the Purchaser wishes to vary the Agreed Care and Maintenance Program, any such variation must be approved by the Vendor, which will not unreasonably withhold its approval, and the Purchaser must indemnify the Vendor in respect of any Loss incurred by the Vendor in implementing and as a consequence of implementing the variations requested by the Purchaser under this clause 2.11.4.
PERIOD BEFORE COMPLETION. 6.1 The TP Shareholders shall ensure that during the period beginning on the signing of this Agreement and ending at Completion, except as otherwise expressly authorised or disclosed in this Agreement or expressly approved by xxxxxxxxxx.xxx, which approval may not be unreasonably withheld or delayed, or necessary for the TP Shareholders to comply with their obligations hereunder, no member of the Group shall:
6.1.1 depart from the ordinary course of its day-to-day trading or alter the scope of its operations;
6.1.2 allot, issue, redeem or purchase any shares, except to the extent necessary under the Options;
6.1.3 grant, issue or redeem any mortgage, pledge, debenture or other security or give any specific guarantee or specific indemnity for amounts (in aggregate) in excess of €50,000, except for security or guarantee given in the ordinary course of day-to-day operation and business;
6.1.4 make or announce any change in any of the terms and conditions, including notice period (préavis), severance payment (indemnité de licenciement), (including by way of a reduction in contributions) to any pension scheme or retirement, death or disability benefit applicable to any of its current or former directors or employees (or any dependants of any such person) or grant or create any additional such benefits or changes;
6.1.5 permit any of its material insurance policies to lapse or do anything which would reduce the amount or scope of cover or make any of its material insurance policies void or voidable;
6.1.6 enter into any agreement or transaction with any TP Shareholder or any person connected with any TP Shareholder or pay any management charge or other fee to any TP Shareholder or any person connected with or advising any TP Shareholder unless expressly authorised or specifically disclosed;
6.1.7 declare, make or pay any dividend or other distribution to its shareholders;
6.1.8 commit to any additional capital expenditure exceeding EUR 100,000 in aggregate;
6.1.9 incur any additional financial indebtedness;
6.1.10 sell or otherwise dispose of any interest in, or grant any third party rights (including any lease or option or right of pre-emption) in respect of, any of its fixed assets except in the ordinary course of trading.
6.2 Not later than 5 Business Days before the Completion Date, the Agent shall provide xxxxxxxxxx.xxx a certificate setting out :
6.2.1 the name and address of each TP Shareholder,
6.2.2 the number of Exchange Shares held by each of them,
6....
PERIOD BEFORE COMPLETION. 5.1 Except as otherwise agreed in writing with the Purchaser, between the execution of this Agreement and Completion, each Seller shall procure (insofar as it is legally able) that the business of each Group Company is carried on only in the ordinary course consistent with past practice and that each Group Company complies with the obligations set out in Schedule 2 (Conduct of Business prior to Completion).
5.2 From the date of this Agreement until Completion, to the extent permitted by applicable law, the Sellers shall procure that the Purchaser is provided with copies of all information provided to the Company’s shareholders on a monthly basis, including the monthly management pack (including the monthly management accounts) for the Group, prepared in accordance with past practice, as soon as reasonably practicable after such information is available.
5.3 Between the date of this Agreement and the Completion Date, each Seller shall, and shall procure that each relevant member of the Group shall:
(a) to the extent required, request a calculation of the Existing Facilities Pay-Off Amount;
(b) use reasonable endeavours to seek to agree with the Majority Lenders (as defined in the Existing Facilities Agreement) a notice period that is as short as possible (but not less than five Business Days) in respect of the voluntary prepayment and/or cancellation of the Existing Facilities at Completion (if applicable, such reduced notice period being the “Reduced Notice Period”);
(c) serve the Facility Agent under the Existing Facilities with a voluntary prepayment and/or cancellation notice in accordance with the terms of the Existing Facilities Agreement to enable the voluntary prepayment and/or cancellation of the Existing Facilities at Completion pursuant to Clause 6.3 and the release at Completion of all security and guarantees related to the Existing Facilities pursuant to the Deed of Release; and
(d) obtain all information needed in respect of the execution of the Deed of Release, consult with the Purchaser with respect to the form and substance of the Deed of Release (including, for the avoidance of doubt, by sharing with the Purchaser within a reasonable period of time before Completion any draft of the Deed of Release) and take into account the Purchaser’s reasonable comments on any such draft.
5.4 Clause 5.1 shall not operate so as to prevent or restrict any of the following on or prior to Completion:
(a) any matter required by law or by regulation binding o...
PERIOD BEFORE COMPLETION. 5.1 Except as otherwise agreed with the Purchaser, and subject to clause 5.2, between the time of this Agreement and Completion each Seller shall exercise any and all rights it might have (including any voting rights attached to its Shares) to the extent it is legally able to do so to ensure that the business of each Group Company is carried out in accordance with the matters specified in schedule 2 (Pre-Completion Conduct of Group Companies).
5.2 Clause 5.1 shall not operate so as to restrict or prevent:
(a) the completion or performance of any obligations undertaken pursuant to any contract or arrangement entered into by any member of the Group prior to the date of this Agreement that has been disclosed in the Data Room;
(b) any matter contemplated in this Agreement or the other Transaction Documents;
(c) any matter undertaken at the written request of the Purchaser; or
(d) any matter required by law, regulation or any governmental or regulatory authority.
5.3 Each Seller shall, at the sole expense of the Purchaser exercise any and all rights it might have (including any voting rights attached to its Shares), to the extent it is legally able to do so, to ensure that each Group Company shall, save where unable to do so pursuant to any pre-existing confidentiality undertaking or pursuant to law or regulation:
(a) allow the Purchaser and its agents access to, and to take copies of, the books (including cash books) and records of each Group Company; and
(b) prepare for the introduction of the Purchaser’s normal working procedures in readiness for Completion in so far as is reasonable; and
(c) co-operate with the Purchaser’s requests (if any) to request that counterparties to the Group’s contractual arrangements provide consent for, or waive their rights in respect of, any change of control of the relevant Group Company, including:
(i) submitting the relevant written waiver or consent to the relevant counterparty promptly following a request from the Purchaser;
(ii) promptly notifying the Purchaser (and providing copies or, in the case of non-written communications, details) of any substantive communications with or from the relevant counterparty in respect of a waiver or consent;
(iii) following consultation with the Purchaser and with the Purchaser’s prior written consent, promptly providing such information and assistance as may be requested by any relevant counterparty in respect of a waiver or consent;
(iv) using its reasonable endeavours to allow person...
PERIOD BEFORE COMPLETION. 6.1 CARRYING ON OF BUSINESS Between the date of this agreement and Completion the Sellers must ensure that:
(a) the business of the Company Group is conducted in the ordinary course of ordinary business;
(b) the Company Group does not enter into any new commitment for more than $1,000,000 or for longer than 1 year without the prior written consent of the Buyer, which consent must not be unreasonably withheld;
(c) the Company Group does not acquire, dispose of, or create a Security Interest over any of its assets other than acquisitions or disposals of stock in trade in the ordinary course of ordinary business;
(d) the Company Group does not distribute or return any capital to its members;
(e) the Company Group does not pay any dividend to its members or pay any management fee, or similar amount, unless the Buyer first consents in writing;
(f) the Company Group does not issue or agree to issue any shares, options or securities which are convertible into shares in the Company Group other than as referred to in the Shareholders Agreement;
PERIOD BEFORE COMPLETION. 14 5.1. Business in the ordinary course...............................14 5.2. Access........................................................15 5.3. Bank Authorities..............................................15 5.4. Prompt disclosure of breach...................................15 5.5. Insurance.....................................................15 5.6.
