Common use of PRE-COMPLETION COVENANTS Clause in Contracts

PRE-COMPLETION COVENANTS. Ordinary Course of Business 7.1 Save (i) in so far as expressly contemplated in this Agreement, (ii) in so far as may be reasonably necessary in connection with the implementation of this Agreement or the Transactions contemplated by this Agreement including the implementation of the Disentanglement, (iii) in so far as may be necessary to comply with applicable Law, or (iv) in so far as agreed or consented to by the Purchaser (such agreement or consent not to be unreasonably withheld or delayed), the Seller shall, and to the extent applicable shall cause the relevant members of the Seller’s Group and each of the EDS Entities to, use all their respective commercially reasonable efforts to procure that, between Signing and Completion, they shall (a) continue to conduct the EDS Business as a going concern in the Ordinary Course and (b) preserve the EDS Business and its relationships with customers, key employees, suppliers, distributors and other third parties, in each case consistent with past practice and (without prejudice to the generality of the foregoing) none of them shall, between Signing and Completion (or in case of partial Completion as further set out in Clause 5.6.2): 7.1.1 make any fundamental change in the nature or organisation of the EDS Business or discontinue or cease to operate all or a material part of the EDS Business; 7.1.2 sell, transfer, grant any exclusive licence, or otherwise dispose of, or, in the case of EDS Patents, EDS Copyrights or EDS Trademarks, allow to lapse (other than in the case of non-renewal due to local law requirements) or abandon, any, or create a Third Party Right (other than any Permitted Encumbrance) over any, EDS Asset to the extent having a book value in excess of, EUR 100,000 (one hundred thousand euros) per item or EUR 300,000 (three hundred thousand euros) on an aggregate basis, other than retention of title or similar arrangements or the sale of any EDS Inventory, in each case in the Ordinary Course; 7.1.3 make any material change in its stock-taking policies; 7.1.4 enter into any Contract in connection with the EDS Business that, if existing on the date hereof, would constitute a Material Contract, other than in respect of the purchase of supplies or sale of inventories or services in the Ordinary Course; 7.1.5 commit to any capital expenditure project (other than those contemplated in the Management Presentation, the “AFC Current Year” or “FC Next Year” columns of the Capital Expenditure Plan or otherwise committed to before the Signing Date) where the capital expenditures contemplated are expected to exceed an amount greater than EUR 100,000 (one hundred thousand euros) per project or EUR 500,000 (five hundred thousand euros) per annum for all such capital expenditures in the EDS Business, in each case other than, for the avoidance of doubt, in respect of the purchase of supplies or maintenance in the Ordinary Course; 7.1.6 amend, modify, waive, renew or terminate, in each case, in any material respect, any right under any existing Material Contract, except renewals, extensions or replacements of existing Material Contracts on terms that are, in the aggregate, at least as favourable in all material respects to the EDS Entities as the terms thereof on the date of this Agreement or fail to comply with any material obligation of the relevant EDS Entity under any Material Contract; 7.1.7 create, allot or issue, or allow to be created, allotted or issued, any share in the capital (or equivalent under applicable local Law) of any of the EDS Entities other than to another EDS Entity; 7.1.8 repay, redeem, repurchase, grant any option or right to subscribe for or acquire any of its share capital or other securities, or allow to be repaid, redeemed, repurchased, granted any option or right to subscribe for or acquire any share capital (or equivalent under applicable local Law) of any of the EDS Entities, to or held by a person other than another EDS Entity; 7.1.9 allow any EDS Entity to acquire or agree to acquire any share(s) (or equivalent under applicable local Law) in any person (other than any other EDS Entity), or make any capital contributions to or investments in any person (other than any other EDS Entity) or acquire the business of any person (other than any other EDS Entity); 7.1.10 allow any EDS Entity to advance or borrow any money, the principal amount of which exceeds EUR 100,000, save for: (i) amounts accounted for in the Net Receivables Amount or Net Intercompany Amount in each case to the extent incurred in the Ordinary Course; and (ii) amounts loaned by any of the EDS Entities to an EDS Employee, such amounts not to exceed EUR 10,000 per EDS Employee; 7.1.11 take any action to (i) amend the articles of association or any other similar Organisational Document of any EDS Entity, (ii) procure a legal merger, legal demerger (division), insolvency, bankruptcy, dissolution or liquidation of any EDS Entity, (iii) apply for the listing of any debt or equity or equity-related securities of any EDS Entity on any stock exchange and/or (iv) enter into any transaction which affects the legal status of any EDS Entity; 7.1.12 engage or appoint any additional employees or workers (or promote any employee or worker to a position) in relation to the EDS Business either (i) earning an annual salary equal to more than GBP 60,000 (sixty thousand pounds sterling) per annum; or (ii) who will (once appointed or promoted (as applicable)) become a member of the site leadership team, the regional leadership team or the commercial team; 7.1.13 materially increase the aggregate compensation (wages, salary, bonuses, pension entitlements and any other form of compensation, taken as a whole) of the EDS Employees or Workers (materially, for these purposes, meaning an increase of three per cent or more) other than as required by any applicable Laws or an applicable collective bargaining agreement which was agreed prior to Signing or which is agreed following Signing and in relation to which the Seller has no control (such as a collective bargaining agreement agreed at national or industry level) provided, in any event, that no increase will be made or agreed other than in the Ordinary Course; 7.1.14 only to the extent such action impacts an EDS Employee (i) adopt, establish, amend or terminate any Pension Plans or material benefit plan or (ii) materially increase the benefits provided under any such Pension Plans or material benefit plan (materially, for these purposes, meaning an increase of three per cent or more in the cost of any material benefits or cost of providing benefits under the Pension Plans), other than as required by any applicable Laws or an applicable collective bargaining agreement which was agreed prior to Signing or which is agreed following Signing and in relation to which the Seller has no control (such as a collective bargaining agreement agreed at national or industry level) provided, in any event, that no increase will be made or agreed other than in the Ordinary Course. For the avoidance of doubt, nothing in this clause shall restrict the ability of the Seller or a member of the Seller’s Group from taking any action in relation to Pension Plans or material benefit plans in respect of employees who are not EDS Employees; 7.1.15 allow any EDS Entity to settle or initiate any litigation, arbitration or similar Proceedings (save for initiation of any counter Proceedings or Proceedings to preserve rights) where it is reasonably foreseeable that it could result in a payment to or by a EDS Entity of EUR 160,000 (one hundred and sixty thousand euros) or the outcome of the matter may otherwise have a material adverse effect on the EDS Business, unless with regard (i) to settlement of any litigation, arbitration or other legal Proceedings that have been provided for in the Accounts whereby the overall amount (including fees) payable in connection with such settlement of any litigation, arbitration or other legal Proceedings does not exceed the estimated cash out under such provisions as Disclosed prior to Signing, or (ii) litigation, arbitration or other legal Proceedings that relate to the collection of debts owed to the EDS Business (including any EDS Entity) in the Ordinary Course; 7.1.16 make any distribution (whether in cash, stock, equity rights or property), declare or pay any dividend, effect a reduction of capital, or enter into any contractual commitment to effect any of the foregoing; 7.1.17 terminate any of its Insurances or fail to renew any Insurance other than on substantially similar terms except (i) for Insurances relating to a specific Asset or Assets where such Asset or Assets has ceased to be owned or otherwise held by an EDS Entity and no EDS Entity has any potential liability in respect of such Asset or Assets which would be covered by that insurance or (ii) where an Insurance is replaced with an alternative Insurance (whether or not with the same insurer) providing substantially similar coverage; 7.1.18 enter into any form of voluntary Insolvency Proceedings (or the equivalent under applicable local Law); 7.1.19 other than in respect of Permitted Encumbrances, grant or issue any mortgage, charge, debenture or other security over any of the EDS Assets; 7.1.20 make any significant change in its method of accounting or any audit practices or change its accounting date, other than a change required by Law; and 7.1.21 agree, conditionally or otherwise, to do any of the foregoing. 7.2 The Seller (or its designated Representative) shall send any request for consent in connection with Clause 7.1 to Xxxxx Xxxxxxx, Xxx Xxxxxxxxx and Xxxxx XxXxxxxx at xxxxx.xxxxxxx@xxxxxxxxxxx.xxx, xxx.xxxxxxxxx@xxxxxxxxxxx.xxx and xxxxx.xxxxxxxx@xxxxxxxxxxx.xxx. A written response to a request for consent, which consent shall not be unreasonably withheld or delayed, shall be provided by any one or more of such individuals by reply email to the relevant Representative of the Seller as soon as practicable and in any event within five (5) Business Days after the time of sending of the email. In the event that such written response is not received within five (5) Business Days, other than where a response is sent requesting additional time up to an additional forty-eight 48 hours to consider the request, consent will be deemed to have been given by the Purchaser. On or before Completion, the Seller shall, or shall procure that the French EDS Entities shall, file with the French Tax Authorities any Tax return required to be filed and which was not timely filed and/or regularise with the French Tax Authorities any Tax return which was not correctly filed, in each case with respect to (i) interest and dividends paid by the French EDS Entities (IFU) and (ii) management fees (DAS2) paid by the French EDS Entities. 7.3 It is further agreed and acknowledged that: 7.3.1 in applying and enforcing Clause 7.1, the Seller and the Purchaser shall act towards each other in accordance with the principles of reasonableness and fairness giving due consideration to all relevant circumstances; and 7.3.2 if and to the extent circumstances require immediate action from any member of the Seller’s Group or any EDS Entity to mitigate or avoid any losses or liabilities arising from an immediate threat to the condition of an EDS Asset which if not mitigated or addressed, as appropriate, would be reasonably likely to have a material adverse effect on the relevant EDS Asset or the health, safety or welfare of any person on or in the immediate vicinity of a EDS Asset, and the Seller is not reasonably able timely to request the consent of the Purchaser or await a response from the Purchaser to such request, no such consent shall be required; provided that the Seller shall inform the Purchaser of any such situation as soon as reasonably practicable thereafter and procure that no further action is taken until after the consent of the Purchaser has been sought pursuant to Clause 7.1.

PRE-COMPLETION COVENANTS. Ordinary Course 5.1 Sellers’ obligations in relation to the conduct of Businessthe business by the Group Companies 7.1 (a) Save (i) as otherwise provided in so far as expressly contemplated in this Agreement, (ii) in so far as may be reasonably necessary in connection with the implementation of this Agreement or the Transactions contemplated by this Agreement including the implementation of the Disentanglement, (iii) in so far as may be necessary to comply with applicable Law, or (iv) in so far as otherwise agreed or consented to by the Purchaser (such agreement or consent approval not to be unreasonably withheld or delayed), the each Seller shall, and to the extent applicable shall cause the relevant members of the Seller’s Group and each of the EDS Entities to, use all their respective commercially reasonable efforts to procure that, between Signing and Completion, they shall (a) continue to conduct the EDS Business as a going concern in the Ordinary Course and (b) preserve the EDS Business and its relationships with customers, key employees, suppliers, distributors and other third parties, in each case consistent with past practice and (without prejudice to the generality of the foregoing) none of them shall, between Signing and Completion (or in case of partial Completion as further set out in Clause 5.6.2): 7.1.1 make any fundamental change in the nature or organisation of the EDS Business or discontinue or cease to operate all or a material part of the EDS Business; 7.1.2 sell, transfer, grant any exclusive licence, or otherwise dispose of, or, in the case of EDS Patents, EDS Copyrights or EDS Trademarks, allow to lapse (other than in the case of non-renewal due to local law requirements) or abandon, any, or create a Third Party Right (other than any Permitted Encumbrance) over any, EDS Asset to the extent having a book value in excess of, EUR 100,000 (one hundred thousand euros) per item or EUR 300,000 (three hundred thousand euros) on an aggregate basis, other than retention of title or similar arrangements or the sale of any EDS Inventory, in each case in the Ordinary Course; 7.1.3 make any material change in its stock-taking policies; 7.1.4 enter into any Contract in connection with the EDS Business that, if existing on the date hereof, would constitute a Material Contract, other than in respect of the purchase of supplies or sale of inventories or services in the Ordinary Course; 7.1.5 commit to any capital expenditure project (other than those contemplated in the Management Presentation, the “AFC Current Year” or “FC Next Year” columns of the Capital Expenditure Plan or otherwise committed to before the Signing Date) where the capital expenditures contemplated are expected to exceed an amount greater than EUR 100,000 (one hundred thousand euros) per project or EUR 500,000 (five hundred thousand euros) per annum for all such capital expenditures in the EDS Business, in each case other than, for the avoidance of doubt, in respect of the purchase of supplies or maintenance in the Ordinary Course; 7.1.6 amend, modify, waive, renew or terminate, in each case, in any material respect, any right under any existing Material Contract, except renewals, extensions or replacements of existing Material Contracts on terms that are, in the aggregate, at least as favourable in all material respects to the EDS Entities as the terms thereof on from the date of this Agreement until Completion, the Group shall conduct its business in the ordinary course. (b) Without prejudice to Clause 5.2 below, the Sellers shall procure that, except with the written consent of the Purchaser (which consent shall not be unreasonably withheld or delayed and which shall be deemed to be refused if no response is received by the Sellers within five (5) Business Days following a request from the Sellers), between the date of this Agreement and Completion, no Group Company shall: (i) materially change its accounting procedures, principles or practices; or (ii) create any Encumbrance over its shares or assets (including the Treasury Shares); or (iii) enter into any credits, loans or bank financings for an amount in excess of EUR 3,000,000 up to an aggregate maximum of EUR 15,000,000 for all Group Companies together, or fail to comply settle in accordance with the payment procedures and timescales observed in the ordinary course of business by the Group Companies any material debts incurred by the Group Companies in the normal course of trading; or (iv) repay any External Group Indebtedness before it is due; or (v) grant any guarantees, securities, indemnities or other agreement to secure an obligation of the relevant EDS Entity under a third party which if called would result in a cost to any Material Contract;Group Company of EUR 3,000,000 or more up to an aggregate maximum cost of EUR 15,000,000 for all Group Companies together; or 7.1.7 create(vi) have its articles of association or other constitutional documents amended; or (vii) issue any securities; or (viii) declare, allot make or issuepay any dividend, or allow to be created, allotted or issued, any share in the capital (or equivalent under applicable local Law) return of any of the EDS Entities other than to another EDS Entity; 7.1.8 repay, redeem, repurchase, grant any option or right to subscribe for or acquire any of its share capital or other securitiesdistribution to any member of a Seller’s Group; or (ix) be wound-up, merged or de-merged; or (x) approve the contribution or sale of its business, as a whole or in part; or (xi) acquire an interest in any other company, dispose of an interest in any Group Company or any Treasury Shares, or allow to be repaid, redeemed, repurchased, granted any option take or right to subscribe for or acquire any share capital (or equivalent under applicable local Law) of any of the EDS Entities, to or held by terminate a person other than another EDS Entity; 7.1.9 allow any EDS Entity to acquire or agree to acquire any share(s) (or equivalent under applicable local Law) participation in any person partnership or joint venture; or (other than any other EDS Entity), or make xii) incur any capital contributions to expenditure exceeding EUR 3,000,000 per expenditure per Group Company or investments EUR 60,000,000 in aggregate for all Group Companies; or (xiii) enter into or terminate any person (other than any other EDS Entity) contract or acquire the business of any person (other than any other EDS Entity); 7.1.10 allow any EDS Entity to advance or borrow any money, the principal amount of which exceeds EUR 100,000, save for: arrangement (i) amounts accounted which relates to an aggregate commitment for any Group Company in the Net Receivables Amount excess of EUR 3,000,000, or Net Intercompany Amount requires a termination notice in each case to the extent incurred in the Ordinary Course; and excess of 12 months, or (ii) amounts loaned by which is not at arm’s length terms; or (xiv) sell, license, otherwise dispose of, terminate its right to use of any material asset of the EDS Entities a Group Company; or (xv) sell, license, otherwise dispose of, terminate its right to an EDS Employeeuse, such amounts not fail to exceed EUR 10,000 per EDS Employee; 7.1.11 renew or fail to take any action to defend or preserve any material Business IP except in line with past practice; or (xvi) in connection with the Properties (i) amend terminate or serve any notice to terminate or waive the articles of association or any other similar Organisational Document terms of any EDS Entitylease, or (ii) procure a legal mergerenter into or vary any agreement, legal demerger lease or other commitment; or (divisionxvii) make any change in the terms and conditions of employment of its Employees (except changes resulting from amendments to applicable collective bargaining agreements or applicable law), insolvencyor terminate (except for good cause) any Senior Employee; or (xviii) make any changes to any arrangements under which benefits are payable on death, bankruptcy, dissolution leaving employment or liquidation retirement in respect of Employees of any EDS Entity, Group Company; or (iii) apply for the listing of any debt or equity or equity-related securities of any EDS Entity on any stock exchange and/or (ivxix) enter into any transaction which affects (or modify any subsisting) agreement with any trade union or any agreement that relates to any works council or similar body representing Employees of the legal status Group Companies; or (xx) agree to or permit the institution or settlement of any EDS Entity; 7.1.12 engage or appoint any additional employees or workers (or promote any employee or worker to a position) in relation to the EDS Business either (i) earning an annual salary equal to more than GBP 60,000 (sixty thousand pounds sterling) per annum; or (ii) who will (once appointed or promoted (as applicable)) become a member of the site leadership team, the regional leadership team or the commercial team; 7.1.13 materially increase the aggregate compensation (wages, salary, bonuses, pension entitlements and any other form of compensation, taken as a whole) of the EDS Employees or Workers (materially, for these purposes, meaning an increase of three per cent or more) other than as required by any applicable Laws or an applicable collective bargaining agreement which was agreed prior to Signing or which is agreed following Signing and in relation to which the Seller has no control (such as a collective bargaining agreement agreed at national or industry level) provided, in any event, that no increase will be made or agreed other than in the Ordinary Course; 7.1.14 only to the extent such action impacts an EDS Employee (i) adopt, establish, amend or terminate any Pension Plans or material benefit plan or (ii) materially increase the benefits provided under any such Pension Plans or material benefit plan (materially, for these purposes, meaning an increase of three per cent or more in the cost of any material benefits or cost of providing benefits under the Pension Plans), other than as required by any applicable Laws or an applicable collective bargaining agreement which was agreed prior to Signing or which is agreed following Signing and in relation to which the Seller has no control (such as a collective bargaining agreement agreed at national or industry level) provided, in any event, that no increase will be made or agreed other than in the Ordinary Course. For the avoidance of doubt, nothing in this clause shall restrict the ability of the Seller or a member of the Seller’s Group from taking any action in relation to Pension Plans or material benefit plans in respect of employees who are not EDS Employees; 7.1.15 allow any EDS Entity to settle or initiate any litigation, arbitration or similar Proceedings (save for initiation of any counter Proceedings or Proceedings to preserve rights) litigation where it is reasonably foreseeable that it could result in a payment to or by a EDS Entity Group Company of EUR 160,000 1,500,000 or more, except for the litigation mentioned in Schedule 12; or (one hundred and sixty thousand eurosxxi) agree or permit the termination or the outcome of the matter may otherwise have a material adverse effect on the EDS Business, unless with regard (i) to settlement lapsing of any litigation, arbitration insurance policy or other legal Proceedings that have been provided for in the Accounts whereby the overall amount agree to any changes to such insurance policies; or (including feesxxii) payable in connection with such settlement of any litigation, arbitration or other legal Proceedings does not exceed the estimated cash out under such provisions as Disclosed prior to Signing, or (ii) litigation, arbitration or other legal Proceedings that relate to the collection of debts owed to the EDS Business (including any EDS Entity) in the Ordinary Course; 7.1.16 make any distribution (whether in cash, stock, equity rights or property), declare or pay any dividend, effect a reduction of capital, or enter into any contractual commitment to effect any of the foregoing; 7.1.17 terminate any of its Insurances or fail to renew any Insurance other than on substantially similar terms except (i) for Insurances relating to a specific Asset or Assets where such Asset or Assets has ceased to be owned or otherwise held by an EDS Entity and no EDS Entity has any potential liability in respect of such Asset or Assets which would be covered by that insurance or (ii) where an Insurance is replaced with an alternative Insurance (whether or not with the same insurer) providing substantially similar coverage; 7.1.18 enter into any form of voluntary Insolvency Proceedings (or the equivalent under applicable local Law); 7.1.19 other than in respect of Permitted Encumbrances, grant or issue any mortgage, charge, debenture or other security over any of the EDS Assets; 7.1.20 make any significant change in its method of accounting or any audit practices or change its accounting date, other than a change required by Law; and 7.1.21 agree, conditionally or otherwise, or resolve to do any of the foregoing. 7.2 The Seller (, except where such measure or its designated Representative) shall send any request for consent in connection with Clause 7.1 to Xxxxx Xxxxxxx, Xxx Xxxxxxxxx and Xxxxx XxXxxxxx at xxxxx.xxxxxxx@xxxxxxxxxxx.xxx, xxx.xxxxxxxxx@xxxxxxxxxxx.xxx and xxxxx.xxxxxxxx@xxxxxxxxxxx.xxx. A written response to a request for consent, which consent shall not be unreasonably withheld or delayed, shall be provided by any one or more of such individuals by reply email to the relevant Representative of the Seller as soon as practicable and in any event within five (5) Business Days after the time of sending of the email. In the event that such written response is not received within five (5) Business Days, other than where a response is sent requesting additional time up to an additional forty-eight 48 hours to consider the request, consent will be deemed to have been given by the Purchaser. On or before Completion, the Seller shall, or shall procure that the French EDS Entities shall, file with the French Tax Authorities any Tax return required to be filed and which was not timely filed and/or regularise with the French Tax Authorities any Tax return which was not correctly filed, in each case with respect to decision (i) interest and dividends paid by is taken in the French EDS Entities (IFU) and ordinary course of business, (ii) management fees is an intra-group transaction between the Group Companies, (DAS2iii) paid is otherwise expressly provided for, contemplated or allowed in the Transaction Documents, (iv) is listed in Schedule 11 to this Agreement or (v) is required by the French EDS Entitiesapplicable law, regulation or a court ruling or is required to ensure that no Group Company business would cause a breach of any Economic Sanctions Laws by either Party or to remedy such breach. 7.3 It (c) Furthermore, it is further agreed and acknowledged that: 7.3.1 that (i) in applying and enforcing Clause 7.15.1(b), the Seller Sellers and the Purchaser shall act towards each other in accordance with the principles of reasonableness and fairness giving due consideration to all relevant circumstances; and 7.3.2 , and (ii) in urgent matters whereby the operations or the assets of the Group are immediately threatened, the Sellers may not be able to timely request the Purchaser’s consent, or await the Purchaser’s response to such request, if and to the extent these circumstances require immediate action from any member of the Seller’s Group or any EDS Entity to mitigate or avoid any losses or liabilities arising from an immediate threat to Sellers, but in such event the condition of an EDS Asset which if not mitigated or addressed, as appropriate, would be reasonably likely to have a material adverse effect on the relevant EDS Asset or the health, safety or welfare of any person on or in the immediate vicinity of a EDS Asset, and the Seller is not reasonably able timely to request the consent of the Purchaser or await a response from the Purchaser to such request, no such consent Sellers shall be required; provided that the Seller shall nevertheless inform the Purchaser of any such situation as soon as reasonably practicable thereafter and procure that no further action is taken until after the consent of the Purchaser has been sought pursuant to Clause 7.1thereafter.