PRE-CLOSING UNDERTAKINGS. 4.1 Pending Closing, the Seller (to the extent lawfully permitted and that the directors of the Target will not breach their own fiduciary duties) shall use all reasonable efforts to make sure that, the business of the Target be conducted in the ordinary course of business. The Seller shall use reasonable efforts to preserve the structural integrity of the Target and maintain its material existing relationships with customers, suppliers, creditors, business partners and other persons having business contacts with them so that on the Closing Date their business continuity will not be damaged. Without limiting the above, the Seller shall procure that the Target complies with the remaining provisions of this clause 4. 4.2 No dividend or other distribution shall be declared, paid or made by the Target without prior written consent of the Purchaser, except for the Pre-Closing Dividend. 4.3 No amendments shall be made to any Constitutional Documents of the Target without the prior written consent of the Purchaser. 4.4 The Target shall not grant any consent or waiver in relation to any reserved matters (however described) pursuant to any shareholders’ agreement, joint venture agreement or articles or association that are applicable to the Target without prior written consent of the Purchaser. 4.5 The Target shall not enter into any contract (whether in relation to a disposal, acquisition or otherwise) or commitment with a value exceeding US$5,000,000 without prior written consent of the Purchaser. 4.6 The Target shall not increase the emoluments of any employee other than in accordance with the normal practice of the Target without prior written consent of the Purchaser. 4.7 The Target shall not transfer or surrender any asset to, or assume, indemnify or incur any liability, for the benefit of the Seller or any member of the Seller Group without prior written consent of the Purchaser. 4.8 The Target shall not pass any directors’ resolution or any shareholders’ resolution in relation to any winding-up of the Target without prior written consent of the Purchaser. 4.9 The Target shall not create, allot or issue any shares, loan capital, securities convertible into shares of the Target or any option or right to subscribe in respect of any shares of the Target, loan capital or share option or subscription right related with securities convertible into shares of the Target without prior written consent of the Purchaser. 4.10 Except (a) the Proposed Transactions or (b) with the prior written consent of the Purchaser or (c) in the ordinary and usual course of business or in consistency with past practices, the Seller shall not enter into any transaction or take any action or measure that will cause any change in or any uncertainty about the assets, business, liabilities or other important aspect of the Target that will cause a material adverse impact on the performance of this Agreement.
Appears in 3 contracts
Samples: Share Purchase Agreement, Share Purchase Agreement, Share Purchase Agreement
PRE-CLOSING UNDERTAKINGS.
4.1 Pending Closing, 5.1 Subject to Clause 5.2 the Seller (undertakes to the extent lawfully permitted and that Buyer to procure that:
5.1.1 from the directors date of the Target this Agreement until Closing no Group Member will not breach their own fiduciary duties) shall use all reasonable efforts to make sure that, the business undertake any act or course of the Target be conducted in conduct which is outside the ordinary course of business. The Seller shall use reasonable efforts to preserve the structural integrity business of the Target and maintain its material existing relationships with customers, suppliers, creditors, business partners and other persons having business contacts with them so that on the Closing Date their business continuity will not be damaged. Without limiting the above, the Seller shall procure that the Target complies with the remaining provisions of this clause 4.
4.2 No dividend or other distribution shall be declared, paid or made by the Target without prior written consent of the Purchaser, except for the Pre-Closing Dividend.
4.3 No amendments shall be made to any Constitutional Documents of the Target such Group Member without the prior written consent of the Purchaser.Buyer (such consent not to be unreasonably withheld or delayed); and
4.4 The Target 5.1.2 from the date of this Agreement until Closing no Group Member shall not grant undertake any consent or waiver in relation to any reserved matters (however described) pursuant to any shareholders’ agreement, joint venture agreement or articles or association that are applicable to the Target without prior written consent of the Purchaser.
4.5 The Target shall not enter into any contract (whether acts or matters specified in relation to a disposal, acquisition or otherwise) or commitment with a value exceeding US$5,000,000 Schedule 6 without prior written consent of the Purchaser.
4.6 The Target shall not increase the emoluments of any employee other than in accordance with the normal practice of the Target without prior written consent of the Purchaser.
4.7 The Target shall not transfer or surrender any asset to, or assume, indemnify or incur any liability, for the benefit of the Seller or any member of the Seller Group without prior written consent of the Purchaser.
4.8 The Target shall not pass any directors’ resolution or any shareholders’ resolution in relation to any winding-up of the Target without prior written consent of the Purchaser.
4.9 The Target shall not create, allot or issue any shares, loan capital, securities convertible into shares of the Target or any option or right to subscribe in respect of any shares of the Target, loan capital or share option or subscription right related with securities convertible into shares of the Target without prior written consent of the Purchaser.
4.10 Except (a) the Proposed Transactions or (b) with the prior written consent of the Purchaser Buyer (such consent not to be unreasonably withheld or delayed).
5.2 Clause 5.1 does not apply in respect of and shall not operate so as to restrict or prevent:
5.2.1 any matter reasonably undertaken by any member of the Group in an emergency or disaster situation with the bona fide intention of minimising any adverse effect thereof provided that immediate written notice thereof is provided to the Buyer;
5.2.2 the completion or performance of actions which are reasonably necessary to discharge any obligations undertaken pursuant to any legal or regulatory obligation or pursuant to any contract, arrangement, licence or consent in each case that has been entered into by or relating to any member of the Group prior to the date of this Agreement and was entered into (cor, in the case of a licence or consent, issued or granted) in the ordinary and usual course of business business;
5.2.3 any matter expressly required by the Transaction Documents; or
5.2.4 any matter undertaken at the written request of the Buyer.
5.3 The liability of the Seller in respect of any claim by the Buyer in respect of a breach of Clause 5.1 shall be subject to the limitations set out in Clause 8 and in Schedule 7.
5.4 The Seller agrees to notify the Buyer as soon as reasonably practicable upon becoming aware of any fact, matter or circumstance which constitutes, or which is likely to constitute, a breach of the undertakings contained in consistency Clause 5.1 or any breach of or inaccuracy in any of the Seller’s Warranties under this Agreement.
5.5 Pending Closing the Buyer and any person authorised by it shall be given reasonable access to the properties and to all the books and records of each Group Member and the managers, directors and employees of each Group Member shall be instructed to give all such information and explanations as the Buyer or any person acting on the Buyer’s behalf may reasonably request.
5.6 The Seller agrees that it shall not take any action in its capacity as a shareholder of the Company, or an indirect shareholder of the Group Companies or otherwise, that causes or is reasonably likely to cause the US Managers and UK Managers to breach the pre-closing undertaking given under clause 4.1 of the UK Warranty Deed and clause 4.1 of the US Warranty Deed, respectively.
5.7 The Seller shall, and shall cause its Affiliates to, request the immediate return or certified destruction of all materials and information heretofore provided to any person or its representatives (other than the Buyer and its representatives) in connection with past practicesthe sale of the Group, any Group Member or any of their respective businesses.
5.8 The Seller shall, and agrees that it shall cause its Affiliates to, and shall direct the management of the Group Companies to, use reasonable endeavours in good faith to assist the Buyer, and to provide such information to the Buyer as the Buyer may reasonably request, with respect to the inclusion by the Buyer of financial information with respect to the Group in any public filings of the Buyer to be made during the period between the date of this Agreement and the Closing provided always that, for the avoidance of doubt, the Buyer’s obligation to complete this Agreement shall not be affected in any way by the Seller’s obligations contained in this Clause.
5.9 Until the Closing, the Seller shall not not, and shall procure that no Group Member or Affiliate of the Seller shall enter into into, continue or solicit discussions, negotiations or agreements with, or provide any transaction information to or take otherwise assist, any action or measure that will cause any change third party who may be interested in acquiring the Securities (or any uncertainty about of them) or the assets, business, liabilities whole or other important aspect any material part of the Target that will cause a material adverse impact on undertaking, business or assets of any Group Member (including any shares in the performance capital of this Agreementany Group Member).
Appears in 2 contracts
Samples: Sale and Purchase Agreement, Sale and Purchase Agreement (Diamond Foods Inc)
PRE-CLOSING UNDERTAKINGS.
4.1 Pending Closing, the Seller Sellers (to the extent lawfully permitted and that the directors of the Target will not breach their own fiduciary duties) shall use all reasonable efforts to make sure that, the business businesses of the Target be Group Companies are conducted in the their ordinary course of businesscourse. The Seller Sellers shall use reasonable efforts to preserve the structural integrity of the Target Group Companies and maintain its their material existing relationships with customers, suppliers, creditors, business partners and other persons having business contacts with them so that on the Closing Date their business continuity will not be damaged. Without limiting the above, each of the Seller Sellers shall procure that each of the Target complies Group Companies comply with the remaining provisions of this clause Clause 4.
4.2 No dividend or other distribution shall be declared, paid or made by the any Target Group Company (other than a Pre-Closing Dividend as contemplated under Clause 2.3) without prior written consent of the Purchaser, except for the Pre-Closing Dividend.
4.3 No amendments shall be made to any Constitutional Documents of the any Target Group Company without the prior written consent of the Purchaser.
4.4 The Target shall not not, and shall procure that none of the Target Group Subsidiaries shall, grant any consent or waiver in relation to any reserved matters that require the consent or approval of any Target Group Company (however described) or exercise any other consent, approval or veto right (in each case, however described) pursuant to any shareholders’ agreement, joint venture agreement or articles or of association that are applicable to any Target Group Company or Target Group Operating Company, without the Target without prior written consent of the Purchaser.
4.5 The No Target Group Company shall not enter into any contract (whether in relation to a disposal, acquisition or otherwise) or commitment with a value exceeding US$5,000,000 HK$70,000,000 (or its equivalent in foreign currencies) without prior written consent of the Purchaser. This Clause 4.5 shall not apply to contracts or transactions entered into in the ordinary course of business of the relevant Target Group Company. For this purpose “ordinary course of business” shall exclude any sale or purchase of any equity interests in any company, corporation or entity.
4.6 The None of the Target or any Target Group Subsidiary shall not increase the emoluments of any employee other than in accordance with the normal practice of the Target without prior written consent of the Purchaser.
4.7 The No Target Group Company shall not transfer or surrender any asset to, or assume, indemnify or incur any liability, for the benefit of the any Seller or any member of the Seller Group without prior written consent of the PurchaserPurchaser except for settlement of Inter-Company Debts pursuant to Clause 6.8.
4.8 The No Target Group Company shall not pass any directors’ resolution or any shareholders’ resolution in relation to any winding-up of the any Target Group Company without prior written consent of the Purchaser.
4.9 The No Target Group Company shall not create, allot or issue any shares, loan capital, securities convertible into shares of the that Target Group Company or any option or right to subscribe in respect of any shares of the Targetthat Target Group Company, loan capital or share option or subscription right related with securities convertible into shares of the that Target Group Company without prior written consent of the Purchaser.
4.10 No Target Group Company shall enter into any binding legal agreement in relation to any joint venture in relation to, or any acquisition or disposal of any interest in, any entity that operates or manages any port or terminal, without the prior written consent of the Purchaser. This Clause 4.10 shall not apply to the KBCT Project.
4.11 After the date of this Agreement, the Target shall promptly notify the Purchaser once it has entered into definitive agreements relating to the KBCT Project. The Target shall provide all material information relating to the KBCT Project reasonably requested by the Purchaser.
4.12 Except (a) the Proposed Transactions Transaction or (b) with the prior written consent of the Purchaser or (c) in the ordinary and usual course of business or in consistency consistent with past practicespractices of the Target Group Companies, the Seller Target Group Companies shall not enter into any transaction or take any action or measure that will cause any change Material Adverse Effect.
4.13 Notwithstanding any provisions (if any) to the contrary in this Agreement, the Target Group Companies may enter into financing transactions in the ordinary course of business. Nothing in this Clause 4.13 shall be constructed to impose or increase any uncertainty about restriction on the assets, business, liabilities or other important aspect operation of the Target that will cause a material adverse impact on Group Companies or otherwise prejudice the performance rights of this Agreementthe Sellers.
Appears in 1 contract
Samples: Sale and Purchase Agreement
PRE-CLOSING UNDERTAKINGS.
4.1 Pending Closing, the Seller (to the extent lawfully permitted and that the directors of the Target will not breach their own fiduciary duties) shall use all reasonable efforts to make sure that, that the business of the Target Group Companies be conducted in the ordinary course of business. The Seller shall use reasonable efforts to preserve the structural integrity of the Target Group Companies and maintain its their material existing relationships with customers, suppliers, creditors, business partners and other persons having business contacts with them so that on the Closing Date their business continuity will not be damaged. Without limiting the above, the Seller shall procure that each of the Target complies Group Companies comply with the remaining provisions of this clause Clause 4.
4.2 No dividend or other distribution shall be declared, paid or made by the any Target Group Company (other than a Pre-Closing Dividend as contemplated under Clause 2.2) without prior written consent of the Purchaser, except for the Pre-Closing Dividend.
4.3 No amendments shall be made to any Constitutional Documents of the any Target Group Company without the prior written consent of the Purchaser.
4.4 The Target shall not not, and shall procure that none of the Target Group Subsidiaries shall, grant any consent or waiver in relation to any reserved matters that require the consent or approval of any Target Group Company (however described) or exercise any other consent approval or veto right (in each case, however described) pursuant to any shareholders’ agreement, joint venture agreement or articles or association that are applicable to the any Target Group Company without prior written consent of the Purchaser.
4.5 The No Target Group Company shall not enter into any contract (whether in relation to a disposal, acquisition or otherwise) or commitment with a value exceeding US$5,000,000 Hong Kong Dollars Seventy Million (HK$70,000,000) (or its equivalent in foreign currency) without prior written consent of the Purchaser. This Clause 4.5 shall not apply to contracts or transactions entered into in the ordinary course of business of the relevant Target Group Company. For this purpose “ordinary course of business” shall exclude any sale or purchase of any equity interests in any company, corporation or entity.
4.6 The None of the Target or any Target Group Subsidiary shall not increase the emoluments of any employee other than in accordance with the normal practice of the Target without prior written consent of the Purchaser.
4.7 The No Target Group Company shall not transfer or surrender any asset to, or assume, indemnify or incur any liability, for the benefit of the any Seller or any member of the Seller Group without prior written consent of the Purchaser, except for settlement of Inter-Company Debts pursuant to Clause 6.6.
4.8 The No Target Group Company shall not pass any directors’ resolution or any shareholders’ resolution in relation to any winding-up of the any Target Group Company without prior written consent of the Purchaser.
4.9 The No Target Group Company shall not create, allot or issue any shares, loan capital, securities convertible into shares of the that Target Group Company or any option or right to subscribe in respect of any shares of the Targetthat Target Group Company, loan capital or share option or subscription right related with securities convertible into shares of the that Target Group Company without prior written consent of the Purchaser.
4.10 No Target Group Company shall enter into any binding legal agreement in relation to any joint venture in relation to, or any acquisition or disposal of any interest in, any entity that operates or manages any containers, without prior written consent of the Purchaser.
4.11 Except (a) the Proposed Transactions Transaction or (b) with the prior written consent of the Purchaser or (c) in the ordinary and usual course of business or in consistency consistent with past practicespractices of the Target Group Companies, the Seller Target Group Companies shall not enter into any transaction or take any action or measure that will cause any change Material Adverse Effect.
4.12 Notwithstanding any provisions (if any) to the contrary in this Agreement, the Target Group Companies may enter into financing transactions in the ordinary course of business. Nothing in this Clause 4.12 shall be constructed to impose or increase any uncertainty about restriction on the assets, business, liabilities or other important aspect operation of the Target that will cause a material adverse impact on Group Companies or otherwise prejudice the performance rights of this Agreement.the Seller.
Appears in 1 contract
Samples: Share Purchase Agreement
