PRE-COMPLETION UNDERTAKINGS. 3.1 From the date of this Agreement until the Completion Date (or the earlier termination of this Agreement in accordance with its terms) the Seller shall or shall procure that the Company shall, except as required under this Agreement or with the prior written consent of the Purchaser and to the extent permitted under applicable law: (a) carry on the Business in the Ordinary Course of Business and in accordance with the terms of this Agreement; (b) allow the Purchaser to have reasonable access, during normal business hours, to the offices of the Company and to its respective properties, books, records and employees, for the purpose of permitting the Purchaser to conduct confirmatory due diligence and ensure compliance by the Seller with the terms of this clause 3; provided however that (i) the Purchaser shall make the request thereto to the Seller at least five Business Days in advance, (ii) the Seller shall be free to join (or have a third party join) the visit, and (iii) such access shall be at reasonable times and shall not unreasonably disrupt the personnel and operation of the Company and shall solely be requested by the Purchaser for the purpose of the Transaction. 3.2 From the date of this Agreement until the Completion Date (or the earlier termination of this Agreement in accordance with its terms) the Seller shall not or shall procure that the Company shall not, except as required under this Agreement or with the prior written consent of the Purchaser and to the extent permitted under applicable law: (a) take any of the following actions or decisions concerning the Business or the Company: (i) resolve to change its name or to alter its articles of association; (ii) modify the rights attached to the Shares; (iii) allot or issue or agree to allot or issue any shares or any options, warrants, or other securities convertible into the share capital of the Company or grant or agree to grant rights which confer on the holder any right to acquire any of the share capital of the Company or other such interest therein; (iv) reduce, repay, redeem or purchase any of its share capital or effect any other reorganisation of its capital; (v) declare, pay or make any dividend (whether in cash or in kind) or other distribution to the Seller, other than the Pre-Completion Distribution; (vi) resolve to be voluntarily wound up; (vii) sell, lease, transfer or assign any of its assets other than for fair consideration in the Ordinary Course of Business; (viii) place any Encumbrances over the Shares or, other than in the Ordinary Course of Business, over any of the assets of the Company; (ix) make any capital expenditures or any series of capital expenditures outside the Ordinary Course of Business; (x) make any capital investment in or acquire the share capital or other securities of, or all or substantially all of the assets of, any third party; or (xi) increase or modify the base compensation of its employees, other than in the Ordinary Course of Business, or adopt, amend, or terminate any Plan or make any commitment to its employees in respect of any existing Plan or otherwise. (b) otherwise than in the Ordinary Course of Business, terminate, materially amend or materially vary any contract of the Company that involves material rights and obligations for the Company and is required by the Company in order to conduct its Business, unless such is necessary to avoid a material adverse effect to the Business and cannot be delayed; (c) make any material change in the nature, extent or terms of its Business; (d) enter into any borrowing or any lending commitments or issue any note, bond or other debt instrument or create, incur, assume or guarantee any indebtedness for borrowed money of the Company (other than the use of overdraft facilities in existence before the date of this Agreement or agreed to in this Agreement, including the Current Account Debt); (e) enter into any transaction with or for the benefit of the Seller (whether in its capacity as shareholder or director of the Company, or otherwise) or any Affiliate of the Seller, other than in the Ordinary Course of Business on arm’s length terms, or enter into any transaction or agreement with any private individual who is connected with the Seller; or (f) appoint new auditors of the Company. 3.3 At the request of Purchaser, the Company shall appoint ▇▇. ▇▇▇▇▇▇ ▇▇ Jong as interim general manager of the Company as of the date of this Agreement. The duties and responsibilities of the interim general manager are set forth in more detail on Schedule 1. In the event that this Agreement terminates on the basis of clause 4.4 (or for any other reason), the Company shall be entitled to terminate the appointment of ▇▇. ▇▇ ▇▇▇▇ with immediate effect, without any payment of damages or compensation being due to ▇▇. ▇▇ ▇▇▇▇ or to the Purchaser. 3.4 In the period between the date of this Agreement and the Completion Date, the Company may obtain financing from the Seller in the form of Current Account Debt, for the purpose of financing its working capital, and the Company may repay or set-off any amount of such financing, save that if the outstanding amount of such financing at any time exceeds EUR 200,000 the Company may only obtain further financing with the prior written consent of the Purchaser. If any such amount is not repaid or set-off prior to Completion it shall be payable to the Seller in accordance with clause 5.2 (as Current Account Debt). 3.5 In the period between the date of this Agreement and the Completion Date, Seller shall cause the Company to complete and provide to the Purchaser financial statements audited by Seller’s Accountants, including profit and loss statements and balance sheets, for the Company for its fiscal years 2008, 2009 and 2010 in each case prepared in accordance with IFRS and consistent with past practices of the Company together with an unqualified audit report issued by Seller’s Accountants (the Annual Financial Statements; the Annual Financial Statement relating to the financial year 2010 also referred to as the Effective Date Accounts). 3.6 Effective as of the Completion Date, Seller waives any claim it may have against the Company that has not either (i) arisen in the Ordinary Course of Business (including any of the services to be phased out as referred to in clause 6.27) or (ii) is described in this Agreement (the latter including the Current Account Debt), and irrevocably offers to terminate any contract between Seller and the Company at no cost to the Company. Prior to the Completion Date, Seller will and will cause each of its Affiliates to repay, in full, prior to the Completion, all indebtedness owed to the Company by the Seller or such Affiliate. Prior to the Effective Date, Seller will cause the Company to repay all interest bearing indebtedness for borrowed money to third party lenders such that, at the Effective Date, the Company shall have no interest bearing debt, other than any intercompany debt owed by the Company to the Seller, which shall be taken into account in clause 2.2. 3.7 Seller will ensure that the Company takes all reasonable steps to maintain and preserve good commercial relationships with its suppliers and customers and with its employees and otherwise preserve the goodwill of the Business up to and including the Completion Date. 3.8 The Seller will use best efforts to file or cause the Company to file all Tax returns to the extent they are due at a date prior to and including the Completion Date, by April 30, 2011, and Seller will not apply for a extension in relation to the corporate income tax return 2010, and to timely pay any Taxes in respect of such Tax returns filed or in respect of Tax assessments raised to the extent due and payable at a date prior to and including the Completion Date. 3.9 Up to and including the Completion Date the Seller will cause the Company to refrain from commencing any litigation proceedings of any kind or settle any litigation proceedings, without the prior written consent of the Purchaser, such consent not to be unreasonably withheld. 3.10 The Seller will cause the Company to maintain all insurance policies relating to its Business in full force and effect, covering property, fire, casualty and liability, as currently in place or in place during the twelve months prior to the Effective Date and will neither cancel or permit to lapse any such insurance policies prior to the Completion Date. 3.11 To the extent any of the trademarks, service marks, copyrights, know how or any other intellectual property rights used in the Business of the Company as of the date of this Agreement, other than the Logo or other intellectual property rights that are also used by the Seller or its Affiliates or divested Affiliates in the conduct of their respective businesses, are owned by or registered in the name of the Seller as of the date hereof, Seller shall ensure that the ownership of such intellectual property rights are assigned and transferred to the Company prior to the Completion Date or that a non-exclusive, fully paid-up license is granted to the Company to utilize such shared intellectual property rights in the Company’s Business. Seller shall further take all actions or cause the Company to take all actions required to keep such intellectual property rights used by the Company in its Business in full force and effect through the Completion Date, 3.12 The Seller will cause the Company to timely pay in full to its employees all wages, salaries, bonuses, severance payments and other benefits as and when due and payable and to withhold and pay to the appropriate governmental authorities all wage or salaries tax, social insurance charges (both employee and employer) and all other amounts required to be paid in full compliance with applicable law, up to and including the
Appears in 1 contract
Sources: Share Purchase Agreement (Rochester Medical Corporation)
PRE-COMPLETION UNDERTAKINGS. 3.1 From the date of this Agreement until the Completion Date (or the earlier termination of this Agreement in accordance 4.1 Save with its terms) the Seller shall or shall procure that the Company shall, except as required under this Agreement or with the prior written consent of the Purchaser and to the extent permitted under applicable law:
(a) carry on the Business in the Ordinary Course of Business and in accordance with the terms of this Agreement;
(b) allow the Purchaser to have reasonable access, during normal business hours, to the offices of the Company and to its respective properties, books, records and employees, for the purpose of permitting the Purchaser to conduct confirmatory due diligence and ensure compliance by the Seller with the terms of this clause 3; provided however that (i) the Purchaser shall make the request thereto to the Seller at least five Business Days in advance, (ii) the Seller shall be free to join (or have a third party join) the visit, and (iii) such access shall be at reasonable times and shall not unreasonably disrupt the personnel and operation of the Company and shall solely be requested by the Purchaser for the purpose of the Transaction.
3.2 From the date of this Agreement until the Completion Date (or the earlier termination of this Agreement in accordance with its terms) the Seller shall not or shall procure that the Company shall not, except as required under this Agreement or with the prior written consent of the Purchaser and to the extent permitted under applicable law:
(a) take any of the following actions or decisions concerning the Business or the Company:
(i) resolve to change its name or to alter its articles of association;
(ii) modify the rights attached to the Shares;
(iii) allot or issue or agree to allot or issue any shares or any options, warrants, or other securities convertible into the share capital of the Company or grant or agree to grant rights which confer on the holder any right to acquire any of the share capital of the Company or other such interest therein;
(iv) reduce, repay, redeem or purchase any of its share capital or effect any other reorganisation of its capital;
(v) declare, pay or make any dividend (whether in cash or in kind) or other distribution to the Seller, other than the Pre-Completion Distribution;
(vi) resolve to be voluntarily wound up;
(vii) sell, lease, transfer or assign any of its assets other than for fair consideration in the Ordinary Course of Business;
(viii) place any Encumbrances over the Shares or, other than in the Ordinary Course of Business, over any of the assets of the Company;
(ix) make any capital expenditures or any series of capital expenditures outside the Ordinary Course of Business;
(x) make any capital investment in or acquire the share capital or other securities of, or all or substantially all of the assets of, any third party; or
(xi) increase or modify the base compensation of its employees, other than in the Ordinary Course of Business, or adopt, amend, or terminate any Plan or make any commitment to its employees in respect of any existing Plan or otherwise.
(b) otherwise than in the Ordinary Course of Business, terminate, materially amend or materially vary any contract of the Company that involves material rights and obligations for the Company and is required by the Company in order to conduct its Business, unless such is necessary to avoid a material adverse effect to the Business and cannot be delayed;
(c) make any material change in the nature, extent or terms of its Business;
(d) enter into any borrowing or any lending commitments or issue any note, bond or other debt instrument or create, incur, assume or guarantee any indebtedness for borrowed money of the Company (other than the use of overdraft facilities in existence before the date of this Agreement or agreed to in this Agreement, including the Current Account Debt);
(e) enter into any transaction with or for the benefit of the Seller (whether in its capacity as shareholder or director of the Company, or otherwise) or any Affiliate of the Seller, other than in the Ordinary Course of Business on arm’s length terms, or enter into any transaction or agreement with any private individual who is connected with the Seller; or
(f) appoint new auditors of the Company.
3.3 At the request of Purchaser, the Company shall appoint ▇▇. ▇▇▇▇▇▇ ▇▇ Jong as interim general manager of the Company as of the date of this Agreement. The duties and responsibilities of the interim general manager are set forth in more detail on Schedule 1. In the event that this Agreement terminates on the basis of clause 4.4 (or for any other reason), the Company shall be entitled to terminate the appointment of ▇▇. ▇▇ ▇▇▇▇ with immediate effect, without any payment of damages or compensation being due to ▇▇. ▇▇ ▇▇▇▇ or to the Purchaser.
3.4 In the period between the date of this Agreement and the Completion Date, the Company may obtain financing from the Seller in the form of Current Account Debt, for the purpose of financing its working capital, and the Company may repay or set-off any amount of such financing, save that if the outstanding amount of such financing at any time exceeds EUR 200,000 the Company may only obtain further financing with the prior written consent of the Purchaser. If any such amount is not repaid or set-off prior to Completion it shall be payable to the Seller in accordance with clause 5.2 (as Current Account Debt).
3.5 In the period between the date of this Agreement and the Completion Date, Seller shall cause the Company to complete and provide to the Purchaser financial statements audited by Seller’s Accountants, including profit and loss statements and balance sheets, for the Company for its fiscal years 2008, 2009 and 2010 in each case prepared in accordance with IFRS and consistent with past practices of the Company together with an unqualified audit report issued by Seller’s Accountants (the Annual Financial Statements; the Annual Financial Statement relating to the financial year 2010 also referred to as the Effective Date Accounts).
3.6 Effective as of the Completion Date, Seller waives any claim it may have against the Company that has not either (i) arisen in the Ordinary Course of Business (including any of the services to be phased out as referred to in clause 6.27) or (ii) is described in this Agreement (the latter including the Current Account Debt), and irrevocably offers to terminate any contract between Seller and the Company at no cost to the Company. Prior to the Completion Date, Seller will and will cause each of its Affiliates to repay, in full, prior to the Completion, all indebtedness owed to the Company by the Seller or such Affiliate. Prior to the Effective Date, Seller will cause the Company to repay all interest bearing indebtedness for borrowed money to third party lenders such that, at the Effective Date, the Company shall have no interest bearing debt, other than any intercompany debt owed by the Company to the Seller, which shall be taken into account in clause 2.2.
3.7 Seller will ensure that the Company takes all reasonable steps to maintain and preserve good commercial relationships with its suppliers and customers and with its employees and otherwise preserve the goodwill of the Business up to and including the Completion Date.
3.8 The Seller will use best efforts to file or cause the Company to file all Tax returns to the extent they are due at a date prior to and including the Completion Date, by April 30, 2011, and Seller will not apply for a extension in relation to the corporate income tax return 2010, and to timely pay any Taxes in respect of such Tax returns filed or in respect of Tax assessments raised to the extent due and payable at a date prior to and including the Completion Date.
3.9 Up to and including the Completion Date the Seller will cause the Company to refrain from commencing any litigation proceedings of any kind or settle any litigation proceedings, without the prior written consent of the Purchaser, such consent (save with respect to paragraphs (a), (c), (d), (k) and (j) of Part A of Schedule 4, in respect of which the Purchaser may withhold its consent in its absolute discretion) not to be unreasonably withheldwithheld and which consent shall be deemed to be given if not refused within five (5) Business Days from the date of request therefore, and save with respect to the exceptions listed in Part B of Schedule 4, Phoenix shall procure (so far as it is within its power to do so) that between the date of this Agreement and Completion, each Group Company shall take such actions or refrain from taking such actions as are required pursuant to Part A of Schedule 4 of this Agreement unless expressly permitted or required to take them under the terms of this Agreement.
3.10 4.2 For the purposes of Clause 4.1, the Purchaser shall at the date of this Agreement nominate an individual who shall be responsible for giving or refusing consent if requested by Phoenix. Consent received from such person shall be sufficient consent for the purposes of Clause 4.1.
4.3 Neither the Purchaser nor VEG shall liquidate, dissolve, wind up its affairs or merge with any corporation or sell or convey all or substantially all of its assets, nor shall the Purchaser enter into any similar transaction in which the Purchaser is not a continuing public company with reporting obligations under the Exchange Act.
4.4 The Seller will cause the Company to maintain all insurance policies relating to its Business in full force and effectPurchaser shall procure that, covering property, fire, casualty and liability, as currently in place or in place during the twelve months prior to Completion, US Newco is incorporated as a direct subsidiary of the Effective Date Purchaser and will neither cancel that US Newco shall not carry on any business or permit have any assets or liabilities of any nature whatsoever before Completion, except for those transferred to lapse or assumed by it pursuant to any such insurance policies prior to the Completion Datetransaction contemplated by this Agreement.
3.11 4.5 To the extent any of the trademarks, service marks, copyrights, know how or any other intellectual property rights used in the Business of the Company as of not previously obtained prior to the date of this Agreement, other than as soon as reasonably practicable after the Logo date of this Agreement, the Purchaser shall take all such steps and deliver all such documentation to the Dutch Authority for the Financial Markets or other intellectual property rights otherwise as are in each case necessary in order for dispensation to be granted pursuant to Section 4 of the Act on the Supervision of Securities Trade 1995 in respect of the Consideration Warrants.
4.6 The Purchaser undertakes and acknowledges that from the date of entry into the Confidentiality Letter until Completion, it has not and shall not (and shall procure that its group undertakings do not):
(a) save to the extent permitted by Clause 4.9, directly or indirectly make or have any contact whatsoever with any Group Company or any officer or employee of any Group Company; or
(b) use Information provided by Phoenix, the Company or any Connected Person (as such terms are also used defined in the Confidentiality Agreement), persuade or seek to persuade any customer, supplier or independent contractor of any of the Group Companies to cease to do business or reduce the amount of business which such customer, supplier or independent contractor has customarily done with such Group Company.
4.7 To the extent that it has not supplied copies by the Seller or its Affiliates or divested Affiliates in date of this Agreement, Phoenix shall forthwith provide the conduct of their respective businesses, are owned by or registered in the name Purchaser with a copy of the Seller as Shareholders Agreement, the Senior Credit Agreement, the Intercreditor Deed dated January 14 1999, the agreement regulating the Co-Investor Loan and the Mezzanine Credit Agreement, copies of its monthly reports to lenders under the Senior Credit Agreement for the periods from June 2002 onwards (excluding all forward-looking information) together with copies of all supplementary or amending agreements entered into pursuant to such agreements, in particular all accession memoranda, if any, and copies of all agreements relating to the obligation of the Company or any Group Company to pay or reimburse the Compass Management Fee and the Transaction Fees. Phoenix shall also, without undue delay after the date hereofof this Agreement, Seller shall ensure deliver to the Purchaser, copies of the documentation relating to all outstanding pledges, charges, liens and encumbrances granted pursuant to the Senior Credit Agreement or the Mezzanine Credit Agreement, as well as copies of each of the Letter of Credit Guarantees. Phoenix will, in addition, provide copies of any agreements entered into by any Group Company on or after today's date relating to the Shareholders Agreement, the Senior Credit Agreement, the Co-Investor Loan, the Mezzanine Credit Agreement or the payment of the Compass Management Fee or any of the Transaction Fees, as soon as practicable after execution thereof by the relevant Group Company.
4.8 Phoenix undertakes to procure that the ownership Company provides the Purchaser with copies of:
(a) its monthly reports to the lenders under the Senior Credit Agreement as soon as practicable after delivery of such intellectual property rights are assigned and transferred reports as required pursuant to the Senior Credit Agreement;
(b) from October 1, 2002, copies of all requests made for consents or approvals as required under the terms and conditions of the Senior Credit Agreement;
(c) as soon as practicable after the date of this Agreement, reasonable details of the actions that have been taken by any Group Company during the period from and including 30 September 2002 to but excluding the date of this Agreement which, had the provisions of Clause 4 of this Agreement been in effect during that period, would have required the Purchaser's consent; and
(d) as soon as practicable after the date of this Agreement, reasonable details of any items of Capital Expenditure of more than 500,000 euros paid by any Group Company during the period from and including 30 September 2002 to but excluding the date of this Agreement.
4.9 From the date of this Agreement the Purchaser, with reasonable notice to Phoenix (such notice to specify the reason for the visit) and with the prior written consent of Phoenix (such consent not to be unreasonably withheld or delayed) and subject always to the Completion Date or that a non-exclusiveterms of the Confidentiality Agreement, fully paid-up license is granted shall be allowed such access as it may reasonably require to the Company to utilize such shared intellectual property rights in premises (provided that the Company’s Business. Seller shall further take all actions or cause the Company to take all actions required to keep such intellectual property rights used by the Company in its Business in full force and effect through the Completion Date,
3.12 The Seller will cause the Company to timely pay in full to its employees all wages, salaries, bonuses, severance payments and other benefits as and when due and payable and to withhold and pay to the appropriate governmental authorities all wage or salaries tax, social insurance charges (both employee and employer) and all other amounts required to be paid in full compliance with applicable law, up to and including thePurchaser shall
Appears in 1 contract
Sources: Share Sale and Purchase Agreement (Vishay Intertechnology Inc)
PRE-COMPLETION UNDERTAKINGS. 3.1 From 4.1 Pending Completion, the date of this Agreement until the Completion Date (or the earlier termination of this Agreement in accordance with its terms) the Seller shall or Vendor shall procure that the Company shall, except as required under this Agreement or with the prior written consent of the Purchaser and to the extent permitted under applicable lawthat:
(a) each Group Company shall carry on the Business its business in the Ordinary Course ordinary and usual course and shall not make (or agree to make) any payment other than routine payments in the ordinary and usual course of Business and in accordance with the terms of this Agreementtrading;
(b) allow each Group Company shall take all reasonable steps to preserve and protect its assets;
(c) the Purchaser to have Purchaser’s representatives shall be allowed, upon reasonable access, notice and during normal business hours, access to the offices books and records of the each Group Company and to its respective properties(including, without limitation, all statutory books, records minute books, leases, contracts, supplier lists and employees, for the purpose of permitting the Purchaser to conduct confirmatory due diligence and ensure compliance by the Seller customer lists) together with the terms of this clause 3; provided however that (i) the Purchaser shall make the request thereto to the Seller at least five Business Days in advance, (ii) the Seller shall be free to join (or have a third party join) the visit, and (iii) such access shall be at reasonable times and shall not unreasonably disrupt the personnel and operation of the Company and shall solely be requested by the Purchaser for the purpose of the Transaction.
3.2 From the date of this Agreement until the Completion Date (or the earlier termination of this Agreement in accordance with its terms) the Seller shall not or shall procure that the Company shall not, except as required under this Agreement or with the prior written consent of the Purchaser and to the extent permitted under applicable law:
(a) take any of the following actions or decisions concerning the Business or the Company:
(i) resolve to change its name or to alter its articles of association;
(ii) modify the rights attached to the Shares;
(iii) allot or issue or agree to allot or issue any shares or any options, warrants, or other securities convertible into the share capital of the Company or grant or agree to grant rights which confer on the holder any right to acquire any of the share capital of the Company or other such interest therein;
(iv) reduce, repay, redeem or purchase any of its share capital or effect any other reorganisation of its capital;
(v) declare, pay or make any dividend (whether in cash or in kind) or other distribution to the Seller, other than the Pre-Completion Distribution;
(vi) resolve to be voluntarily wound up;
(vii) sell, lease, transfer or assign any of its assets other than for fair consideration in the Ordinary Course of Business;
(viii) place any Encumbrances over the Shares or, other than in the Ordinary Course of Business, over any of the assets of the Company;
(ix) make any capital expenditures or any series of capital expenditures outside the Ordinary Course of Business;
(x) make any capital investment in or acquire the share capital or other securities of, or all or substantially all of the assets of, any third party; or
(xi) increase or modify the base compensation of its employees, other than in the Ordinary Course of Business, or adopt, amend, or terminate any Plan or make any commitment to its employees in respect of any existing Plan or otherwise.
(b) otherwise than in the Ordinary Course of Business, terminate, materially amend or materially vary any contract of the Company that involves material rights and obligations for the Company and is required by the Company in order to conduct its Business, unless such is necessary to avoid a material adverse effect to the Business and cannot be delayed;
(c) make any material change in the nature, extent or terms of its Businesstake copies;
(d) enter into no Group Company shall do, allow or procure any borrowing act or omission which would constitute or give rise to a breach of any lending commitments Warranty as if the Warranties were to be repeated on or issue at any note, bond or other debt instrument or create, incur, assume or guarantee any indebtedness for borrowed money time before Completion by reference to the facts and circumstances then existing;
(e) prompt disclosure is made to the Purchaser of all relevant information which comes to the notice of the Company Vendor in relation to any fact or matter (other than the use of overdraft facilities in existence whether existing on or before the date of this Agreement or agreed arising afterwards) which may constitute a breach of any Warranty as if the Warranties were to in this Agreement, including be repeated on or at any time before Completion by reference to the Current Account Debt)facts and circumstances then existing;
(ef) enter into no dividend or other distribution shall be declared, paid or made by any transaction with Group Company;
(g) no share or for loan capital shall be allotted or issued or agreed to be allotted or issued by any Group Company;
(h) all transactions between each Group Company and the benefit of the Seller (whether in its capacity as shareholder or director of the Company, or otherwise) or any Affiliate of the Seller, other than in the Ordinary Course of Business Vendor shall be on arm’s length terms, commercial terms and in their respective ordinary and usual course of business; and
(i) no action is taken by any Group Company or enter into any transaction or agreement with any private individual who the Vendor which is connected inconsistent with the Seller; or
(f) appoint new auditors of the Company.
3.3 At the request of Purchaser, the Company shall appoint ▇▇. ▇▇▇▇▇▇ ▇▇ Jong as interim general manager of the Company as of the date of this Agreement. The duties and responsibilities of the interim general manager are set forth in more detail on Schedule 1. In the event that this Agreement terminates on the basis of clause 4.4 (or for any other reason), the Company shall be entitled to terminate the appointment of ▇▇. ▇▇ ▇▇▇▇ with immediate effect, without any payment of damages or compensation being due to ▇▇. ▇▇ ▇▇▇▇ or to the Purchaser.
3.4 In the period between the date provisions of this Agreement and or the Completion Dateconsummation of the transactions contemplated by this Agreement.
4.2 Pending Completion, the Company may obtain financing from Vendor shall procure that the Seller in the form of Current Account Debt, for the purpose of financing its working capital, and the Company may repay or set-off any amount of such financing, save that if the outstanding amount of such financing at any time exceeds EUR 200,000 the Company may only obtain further financing Group Companies consult fully with the prior written consent of the Purchaser. If any such amount is not repaid or set-off prior to Completion it shall be payable to the Seller in accordance with clause 5.2 (as Current Account Debt).
3.5 In the period between the date of this Agreement and the Completion Date, Seller shall cause the Company to complete and provide to the Purchaser financial statements audited by Seller’s Accountants, including profit and loss statements and balance sheets, for the Company for its fiscal years 2008, 2009 and 2010 in each case prepared in accordance with IFRS and consistent with past practices of the Company together with an unqualified audit report issued by Seller’s Accountants (the Annual Financial Statements; the Annual Financial Statement relating to the financial year 2010 also referred to as the Effective Date Accounts).
3.6 Effective as of the Completion Date, Seller waives any claim it may have against the Company that has not either (i) arisen in the Ordinary Course of Business (including any of the services to be phased out as referred to in clause 6.27) or (ii) is described in this Agreement (the latter including the Current Account Debt), and irrevocably offers to terminate any contract between Seller and the Company at no cost to the Company. Prior to the Completion Date, Seller will and will cause each of its Affiliates to repay, in full, prior to the Completion, all indebtedness owed to the Company by the Seller or such Affiliate. Prior to the Effective Date, Seller will cause the Company to repay all interest bearing indebtedness for borrowed money to third party lenders such that, at the Effective Date, the Company shall have no interest bearing debt, other than any intercompany debt owed by the Company to the Seller, which shall be taken into account in clause 2.2.
3.7 Seller will ensure that the Company takes all reasonable steps to maintain and preserve good commercial relationships with its suppliers and customers and with its employees and otherwise preserve the goodwill of the Business up to and including the Completion Date.
3.8 The Seller will use best efforts to file or cause the Company to file all Tax returns to the extent they are due at a date prior to and including the Completion Date, by April 30, 2011, and Seller will not apply for a extension in relation to any matters which may have a material effect upon the corporate income tax return 2010, and to timely pay any Taxes in respect of such Tax returns filed or in respect of Tax assessments raised to the extent due and payable at a date prior to and including the Completion Date.
3.9 Up to and including the Completion Date the Seller will cause the Company to refrain from commencing any litigation proceedings of any kind or settle any litigation proceedings, without Group Companies. Without the prior written consent of the Purchaser, such consent not to be unreasonably withheld.
3.10 The Seller will cause the Company to maintain all insurance policies relating to its Business in full force Group Companies shall not, and effect, covering property, fire, casualty and liability, as currently in place or in place during the twelve months prior to the Effective Date and will neither cancel or permit to lapse any such insurance policies prior to the Completion Date.
3.11 To the extent any of the trademarks, service marks, copyrights, know how or any other intellectual property rights used in the Business of the Company as of the date of this Agreement, other than the Logo or other intellectual property rights that are also used by the Seller or its Affiliates or divested Affiliates in the conduct of their respective businesses, are owned by or registered in the name of the Seller as of the date hereof, Seller Vendor shall ensure that the ownership Group Companies do not:
(a) enter into any contract or commitment (or make a bid or offer which may lead to a contract or commitment) having a material value or involving material expenditure or which is of a long term or unusual nature or which could involve an obligation of a material nature or which may result in any material change in the nature or scope of the operations of such intellectual property rights are assigned Group Company;
(b) agree to any variation or termination of any existing contract to which that Group Company is a party and transferred which may have a material effect upon the nature or scope of the operations of such Group Company;
(c) (whether in the ordinary and usual course of business or otherwise) acquire or dispose of, or agree to acquire or dispose of, any material business or any material asset; or
(d) enter into any agreement, contract, arrangement or transaction (whether or not legally binding) other than in the Company prior to ordinary and usual course of business.
4.3 Pending Completion, the Vendor shall obtain, effect or procure for the obtaining and effecting of all approvals, registrations and filings required by applicable laws and regulations for the Completion Date or that a non-exclusiveto be effected, fully paid-up license is granted including but not limited to the Company to utilize such shared intellectual property rights in the Company’s Business. Seller shall further take all actions or cause the Company to take all actions required to keep such intellectual property rights used approval by the Company in its Business in full force and effect through the Completion Date,
3.12 The Seller will cause the Company to timely pay in full to its employees all wages, salaries, bonuses, severance payments and other benefits as and when due and payable and to withhold and pay to the appropriate governmental authorities all wage or salaries tax, social insurance charges (both employee and employer) and all other amounts required to be paid in full compliance with applicable law, up to and including theMinistry of Commerce of China.
Appears in 1 contract
PRE-COMPLETION UNDERTAKINGS. 3.1 From the date of this Agreement until the Completion Date (or the earlier termination of this Agreement in accordance with its terms) the Seller shall or shall procure that the Company shall4.1 Pending Completion, except as required under this Agreement or with the prior written consent each of the Purchaser Vendor and to the extent permitted under applicable lawCMCC shall ensure that:
(a) each Target Group Company shall carry on the Business its business in the Ordinary Course ordinary and usual course and shall not make (or agree to make) any payment other than routine payments in the ordinary and usual course of Business and in accordance with the terms of this Agreementtrading;
(b) allow each Target Group Company shall take all reasonable steps to preserve and protect its assets;
(c) the Purchaser to have Purchaser's representatives shall be allowed, upon reasonable access, notice and during normal business hours, access to the offices books and records of the each Target Group Company and to its respective properties(including, without limitation, all statutory books, records minute books, leases, contracts, supplier lists and employees, for the purpose of permitting the Purchaser to conduct confirmatory due diligence and ensure compliance by the Seller customer lists) together with the terms of this clause 3; provided however that (i) the Purchaser shall make the request thereto to the Seller at least five Business Days in advance, (ii) the Seller shall be free to join (or have a third party join) the visit, and (iii) such access shall be at reasonable times and shall not unreasonably disrupt the personnel and operation of the Company and shall solely be requested by the Purchaser for the purpose of the Transaction.
3.2 From the date of this Agreement until the Completion Date (or the earlier termination of this Agreement in accordance with its terms) the Seller shall not or shall procure that the Company shall not, except as required under this Agreement or with the prior written consent of the Purchaser and to the extent permitted under applicable law:
(a) take any of the following actions or decisions concerning the Business or the Company:
(i) resolve to change its name or to alter its articles of association;
(ii) modify the rights attached to the Shares;
(iii) allot or issue or agree to allot or issue any shares or any options, warrants, or other securities convertible into the share capital of the Company or grant or agree to grant rights which confer on the holder any right to acquire any of the share capital of the Company or other such interest therein;
(iv) reduce, repay, redeem or purchase any of its share capital or effect any other reorganisation of its capital;
(v) declare, pay or make any dividend (whether in cash or in kind) or other distribution to the Seller, other than the Pre-Completion Distribution;
(vi) resolve to be voluntarily wound up;
(vii) sell, lease, transfer or assign any of its assets other than for fair consideration in the Ordinary Course of Business;
(viii) place any Encumbrances over the Shares or, other than in the Ordinary Course of Business, over any of the assets of the Company;
(ix) make any capital expenditures or any series of capital expenditures outside the Ordinary Course of Business;
(x) make any capital investment in or acquire the share capital or other securities of, or all or substantially all of the assets of, any third party; or
(xi) increase or modify the base compensation of its employees, other than in the Ordinary Course of Business, or adopt, amend, or terminate any Plan or make any commitment to its employees in respect of any existing Plan or otherwise.
(b) otherwise than in the Ordinary Course of Business, terminate, materially amend or materially vary any contract of the Company that involves material rights and obligations for the Company and is required by the Company in order to conduct its Business, unless such is necessary to avoid a material adverse effect to the Business and cannot be delayed;
(c) make any material change in the nature, extent or terms of its Businesstake copies;
(d) enter into no Target Group Company shall do, allow or procure any borrowing act or omission which would constitute or give rise to a breach of any lending commitments or issue any note, bond or other debt instrument or create, incur, assume or guarantee any indebtedness for borrowed money Warranty if the
(e) prompt disclosure is made to the Purchaser of all relevant information which comes to the notice of the Company Vendor or CMCC in relation to any fact or matter (other than the use of overdraft facilities in existence whether existing on or before the date of this Agreement or agreed arising afterwards) which may constitute a breach of any Warranty if the Warranties were to in this Agreement, including be repeated on or at any time before Completion by reference to the Current Account Debt)facts and circumstances then existing;
(e) enter into any transaction with or for the benefit of the Seller (whether in its capacity as shareholder or director of the Company, or otherwise) or any Affiliate of the Seller, other than in the Ordinary Course of Business on arm’s length terms, or enter into any transaction or agreement with any private individual who is connected with the Seller; or
(f) appoint new auditors of the no dividend or other distribution shall be declared, paid or made by any Target Group Company.;
3.3 At the request of Purchaser, the (g) no share or loan capital shall be allotted or issued or agreed to be allotted or issued by any Target Group Company;
(h) all transactions between each Target Group Company shall appoint ▇▇. ▇▇▇▇▇▇ ▇▇ Jong as interim general manager of the Company as of the date of this Agreement. The duties and responsibilities of the interim general manager are set forth in more detail on Schedule 1. In the event that this Agreement terminates on the basis of clause 4.4 (or for any other reason), the each Vendor Group Company shall be entitled to terminate on arm's length commercial terms and in their respective ordinary and usual course of business;
(i) otherwise than in the appointment ordinary course of ▇▇. ▇▇ ▇▇▇▇ with immediate effectbusiness, without the amount of any payment of damages Indebtedness owed by each Target Group Company or compensation being due to ▇▇. ▇▇ ▇▇▇▇ or to the Purchaser.
3.4 In the period between existing as at the date of this Agreement shall not be increased or extended and the Completion Date, the no new Indebtedness shall be entered into or assumed by any such company; and
(j) no action is taken by any Target Group Company may obtain financing from the Seller in the form of Current Account Debt, for the purpose of financing its working capital, and the or any Vendor Group Company may repay or set-off any amount of such financing, save that if the outstanding amount of such financing at any time exceeds EUR 200,000 the Company may only obtain further financing which is inconsistent with the prior written consent of the Purchaser. If any such amount is not repaid or set-off prior to Completion it shall be payable to the Seller in accordance with clause 5.2 (as Current Account Debt).
3.5 In the period between the date provisions of this Agreement and or the Completion Date, Seller shall cause the Company to complete and provide to the Purchaser financial statements audited by Seller’s Accountants, including profit and loss statements and balance sheets, for the Company for its fiscal years 2008, 2009 and 2010 in each case prepared in accordance with IFRS and consistent with past practices consummation of the Company together with an unqualified audit report issued transactions contemplated by Seller’s Accountants (the Annual Financial Statements; the Annual Financial Statement relating to the financial year 2010 also referred to as the Effective Date Accounts)this Agreement.
3.6 Effective as 4.2 Pending Completion, each of the Completion Date, Seller waives any claim it may have against the Company that has not either (i) arisen in the Ordinary Course of Business (including any of the services to be phased out as referred to in clause 6.27) or (ii) is described in this Agreement (the latter including the Current Account Debt), Vendor and irrevocably offers to terminate any contract between Seller and the Company at no cost to the Company. Prior to the Completion Date, Seller will and will cause each of its Affiliates to repay, in full, prior to the Completion, all indebtedness owed to the Company by the Seller or such Affiliate. Prior to the Effective Date, Seller will cause the Company to repay all interest bearing indebtedness for borrowed money to third party lenders such that, at the Effective Date, the Company CMCC shall have no interest bearing debt, other than any intercompany debt owed by the Company to the Seller, which shall be taken into account in clause 2.2.
3.7 Seller will ensure that the Company takes all reasonable steps to maintain and preserve good commercial relationships Target Group Companies consult fully with its suppliers and customers and with its employees and otherwise preserve the goodwill of the Business up to and including the Completion Date.
3.8 The Seller will use best efforts to file or cause the Company to file all Tax returns to the extent they are due at a date prior to and including the Completion Date, by April 30, 2011, and Seller will not apply for a extension Purchaser in relation to any matters which may have a material effect upon the corporate income tax return 2010, and to timely pay any Taxes in respect of such Tax returns filed or in respect of Tax assessments raised to the extent due and payable at a date prior to and including the Completion Date.
3.9 Up to and including the Completion Date the Seller will cause the Company to refrain from commencing any litigation proceedings of any kind or settle any litigation proceedings, without Target Group Companies. Without the prior written consent of the Purchaser, such consent not to be unreasonably withheld.
3.10 The Seller will cause the Company to maintain all insurance policies relating to its Business in full force Target Group Companies shall not, and effect, covering property, fire, casualty and liability, as currently in place or in place during the twelve months prior to the Effective Date and will neither cancel or permit to lapse any such insurance policies prior to the Completion Date.
3.11 To the extent any each of the trademarks, service marks, copyrights, know how or any other intellectual property rights used in the Business of the Company as of the date of this Agreement, other than the Logo or other intellectual property rights that are also used by the Seller or its Affiliates or divested Affiliates in the conduct of their respective businesses, are owned by or registered in the name of the Seller as of the date hereof, Seller Vendor and CMCC shall ensure that the ownership Target Group Companies do not:
(a) enter into any contract or commitment (or make a bid or offer which may lead to a contract or commitment) having a material value or involving material expenditure or which is of a long term or unusual nature or which could involve an obligation of a material nature or which may result in any material change in the nature or scope of the operations of such intellectual property rights are assigned Target Group Company;
(b) agree to any variation or termination of any existing contract to which that Target Group Company is a party and transferred to which may have a material effect upon the Company prior to nature or scope of the Completion Date or that a non-exclusive, fully paid-up license is granted to the Company to utilize operations of such shared intellectual property rights Target Group Company;
(c) (whether in the Company’s Business. Seller shall further take all actions ordinary and usual course of business or cause otherwise) acquire or dispose of, or agree to acquire or dispose of, any material business or any material asset; or
(d) enter into any agreement, contract, arrangement or transaction (whether or not legally binding) other than in the Company to take all actions required to keep such intellectual property rights used by the Company in its Business in full force ordinary and effect through the Completion Date,
3.12 The Seller will cause the Company to timely pay in full to its employees all wages, salaries, bonuses, severance payments and other benefits as and when due and payable and to withhold and pay to the appropriate governmental authorities all wage or salaries tax, social insurance charges (both employee and employer) and all other amounts required to be paid in full compliance with applicable law, up to and including theusual course of business.
Appears in 1 contract
Sources: Conditional Sale and Purchase Agreement (China Mobile Hong Kong LTD)
PRE-COMPLETION UNDERTAKINGS. 3.1 From 7.1 Between the execution of this Agreement and the Completion Date:
7.1.1 the Institutional Seller and each Senior Management Seller severally agrees that it shall not (where applicable) without the prior written approval of the Buyer exercise any voting rights over the Securities held by it to approve any of the numbered matters specified in Schedule 3 save to the extent that such action is Permitted Leakage or is expressly provided for in the Transaction Documents; and
7.1.2 each Senior Management Seller severally undertakes to the Buyer that he shall, in each case to the extent that he is reasonably able and legally permitted or entitled to do so by exercising his rights as a shareholder, director (after taking into account any applicable fiduciary duties) and/or employee (as applicable): (i) in each case save to the extent that such action is Permitted Leakage or is expressly provided for in the Transaction Documents, procure that each of the Group Companies does not take or agree to take any of the numbered actions specified in Schedule 3; and (ii) procure that each of the Group Companies will carry on its business in the usual and ordinary course of business; and
7.1.3 the Institutional Seller undertakes to the Buyer that it will not exercise its voting rights as a shareholder, or if requested give any consent under any investment or shareholder agreement affecting the Company, to approve any of the matters specified in Schedule 3 save to the extent that such action is Permitted Leakage or is expressly provided for in the Transaction Documents.
7.2 Clause 7.1 does not apply in respect of and shall not operate so as to restrict or prevent:
7.2.1 the completion or performance of actions which are necessary to discharge any obligations undertaken pursuant to any legal or regulatory obligation in accordance with and pursuant to any contract, arrangement, licence or consent in the form disclosed in the Data Room prior to the date of this Agreement until the Completion Date (and entered into by or the earlier termination of this Agreement in accordance with its terms) the Seller shall or shall procure that the Company shall, except as required under this Agreement or with the prior written consent relating to any member of the Purchaser and to the extent permitted under applicable law:
(a) carry on the Business Group in the Ordinary Course usual and ordinary course of Business and in accordance with the terms of this Agreement;
(b) allow the Purchaser business prior to have reasonable access, during normal business hours, to the offices of the Company and to its respective properties, books, records and employees, for the purpose of permitting the Purchaser to conduct confirmatory due diligence and ensure compliance by the Seller with the terms of this clause 3; provided however that (i) the Purchaser shall make the request thereto to the Seller at least five Business Days in advance, (ii) the Seller shall be free to join (or have a third party join) the visit, and (iii) such access shall be at reasonable times and shall not unreasonably disrupt the personnel and operation of the Company and shall solely be requested by the Purchaser for the purpose of the Transaction.
3.2 From the date of this Agreement until (or, in the Completion Date (case of a licence or consent, issued or granted); 004600-0228-14943-Active.18252126.10
7.2.2 any action undertaken or omitted at the earlier termination of this Agreement in accordance with its terms) the Seller shall not or shall procure that the Company shall not, except as required under this Agreement written request or with the prior written consent of the Purchaser Buyer (and to the extent permitted under applicable law:
(a) take any of the following actions or decisions concerning the Business or the Company:
(i) resolve to change its name or to alter its articles of association;
(ii) modify the rights attached to the Shares;
(iii) allot or issue or agree to allot or issue any shares or any options, warrants, or other securities convertible into the share capital of the Company or grant or agree to grant rights which confer on the holder any right to acquire any of the share capital of the Company or other such interest therein;
(iv) reduce, repay, redeem or purchase any of its share capital or effect any other reorganisation of its capital;
(v) declare, pay or make any dividend (whether in cash or in kind) or other distribution to the Seller, other than the Pre-Completion Distribution;
(vi) resolve to be voluntarily wound up;
(vii) sell, lease, transfer or assign any of its assets other than for fair consideration in the Ordinary Course of Business;
(viii) place any Encumbrances over the Shares or, other than in the Ordinary Course of Business, over any of the assets of the Company;
(ix) make any capital expenditures or any series of capital expenditures outside the Ordinary Course of Business;
(x) make any capital investment in or acquire the share capital or other securities of, or all or substantially all of the assets of, any third party; or
(xi) increase or modify the base compensation of its employees, other than in the Ordinary Course of Business, or adopt, amend, or terminate any Plan or make any commitment to its employees in respect of any existing Plan or otherwise.
(b) otherwise than in the Ordinary Course of Business, terminate, materially amend or materially vary any contract of the Company that involves material rights and obligations for the Company and is required by the Company in order to conduct its Business, unless such is necessary to avoid a material adverse effect to the Business and cannot be delayed;
(c) make any material change in the nature, extent or terms of its Business;
(d) enter into any borrowing or any lending commitments or issue any note, bond or other debt instrument or create, incur, assume or guarantee any indebtedness for borrowed money of the Company (other than the use of overdraft facilities in existence before the date of this Agreement or agreed to in this Agreement, including the Current Account Debt);
(e) enter into any transaction with or for the benefit of the Seller (whether in its capacity as shareholder or director of the Company, or otherwise) or any Affiliate of the Seller, other than in the Ordinary Course of Business on arm’s length terms, or enter into any transaction or agreement with any private individual who is connected with the Seller; or
(f) appoint new auditors of the Company.
3.3 At the request of Purchaserpurpose, the Company shall appoint written consent of or consent by email from either of ▇▇. ▇▇ ▇▇▇▇▇ or ▇▇▇▇▇▇ ▇▇▇▇▇▇ Jong as interim general manager shall constitute consent of the Buyer);
7.2.3 any action set out in Annex 7 to the Business Warranties Disclosure Exhibit;
7.2.4 any matter provided for or action required to give effect to this Agreement, any Transaction Document or the Transaction; or
7.2.5 any action required by Law.
7.3 Between the execution of this Agreement and Completion, the Senior Management Sellers shall:
7.3.1 provide the Buyer on a monthly basis with copies of the consolidated management accounts of Rhiag Bondco S.p.A., no later than three Business Days following the date on which they become available, in a format approved by legal counsel; and
7.3.2 upon the reasonable request of the Buyer, arrange for senior members of the management team of the Company as to meet the Buyer or any person authorised by the Buyer, provided that the Buyer gives notice of no less than five Business Days of any meeting request (such notice not to be given prior to 15 days after the date of this Agreement). The duties Such meetings shall take place no more than once per month and responsibilities the Buyer shall not otherwise interfere with the ordinary operations of the interim general manager business of the Group Companies. Such meetings will have an agenda approved by legal counsel for the Senior Management Sellers and for the Buyer and circulated to participants at least two Business Days in advance and minutes will be taken during such meetings, provided that the Guarantor agrees that it and its Subsidiaries shall not trade in the Group’s publicly traded bonds.
7.4 The Institutional Seller shall consult with the Senior Management Sellers’ Representative in connection with the preparation of the final Approved Company Adviser Fee Schedule and the final Approved Shareholder Adviser Fee Schedule and shall provide the Senior Management Sellers’ Representative with final versions before they are set forth delivered under Clauses 7.5 and 7.6. If the total aggregate level of fees in more detail on the final Approved Company Adviser Fee Schedule 1. In and the event that final Approved Shareholder Adviser Fee Schedule, taken together, exceeds the total aggregate level of fees shown in the estimate of Approved Company Adviser Fee Schedule and the estimate of Approved Shareholder Adviser Fee Schedule, taken together, circulated to the Senior Management Sellers’ legal adviser in advance of execution of this Agreement terminates and in each case including all VAT and similar taxes and disbursements, by more than 10%, the final Approved Company Adviser Fee Schedule and the final Approved Shareholder Adviser Fee Schedule shall require the consent of the Senior Management Sellers’ Representative (such consent not to be unreasonably withheld, delayed or made subject to conditions). If the Senior Management Sellers’ Representative is entitled to withhold consent and does so, the final Approved Company Adviser Fee Schedule and the final Approved Shareholder Adviser Fee Schedule shall be adjusted so that the total aggregate increase over the estimates is 10%.
7.5 The Institutional Seller shall deliver to the Buyer and the Senior Management Sellers’ Representative the Approved Company Adviser Fee Schedule no later than 11:00 a.m. on the basis of clause 4.4 (or for any other reason), fifth Business Day immediately preceding the Company Completion Date.
7.6 The Institutional Seller shall be entitled to terminate the appointment of ▇▇. ▇▇ ▇▇▇▇ with immediate effect, without any payment of damages or compensation being due to ▇▇. ▇▇ ▇▇▇▇ or deliver to the PurchaserBuyer and the Senior Management Sellers’ Representative the Approved Shareholder Adviser Fee Schedule no later than 11:00 a.m. on the fifth Business Day immediately preceding the Completion Date.
3.4 In the period between 7.7 Between the date of this Agreement and the Completion Date, : 004600-0228-14943-Active.18252126.10
7.7.1 the Company may obtain financing from the Seller in the form of Current Account Debt, for the purpose of financing its working capitalSellers undertake that they shall, and shall procure that each relevant Group Company shall serve the Company may repay or set-off any amount of such financing, save that if the outstanding amount of such financing at any time exceeds EUR 200,000 the Company may only obtain further financing Facility Agent with the prior written consent of the Purchaser. If any such amount is not repaid or set-off prior to Completion it shall be payable to the Seller a prepayment and cancellation notice in accordance with clause 5.2 (as Current Account Debt)the terms of the Revolving Credit Facility Agreement in respect of the prepayment and/or cancellation on the Completion Date of the External Financing provided under the Revolving Credit Facility Agreement; and
7.7.2 if requested by the Buyer, the Sellers shall procure that Rhino Bondco S.p.A. furnishes an officer’s certificate meeting the requirements of Section 3.01 of the Senior Notes Indenture to the Trustee together with a notice to noteholders in respect of the redemption of some or all the outstanding notes under the Senior Notes Indenture on the Completion Date provided that Rhino Bondco S.p.A. shall not be required to furnish any such certificate or notices less than 10 days or more than 60 days before the expected date for Completion.
3.5 7.8 In the period between prior to Completion, the date of this Agreement Sellers shall take such action within their power as the Buyer may reasonably request to merge a Subsidiary into its immediate parent company or a new parent company for such purpose (provided that the affected Group Companies are companies incorporated in the same jurisdiction, any consent under the External Financing is obtained and the Completion Date, Seller Buyer confirms that it has received advice for the benefit of the Group that there is no material adverse Tax consequence to the Group or any Group Company). The Sellers shall cause obtain an estimate of the legal expenses to be incurred in effecting any such merger or mergers and such costs up to an aggregate maximum of €15,000 plus VAT shall be included in the Company to complete and provide to the Purchaser financial statements audited by Seller’s Accountants, including profit and loss statements and balance sheets, for the Company for its fiscal years 2008, 2009 and 2010 in each case prepared in accordance with IFRS and consistent with past practices of the Company together with an unqualified audit report issued by Seller’s Accountants (the Annual Financial Statements; the Annual Financial Statement relating to the financial year 2010 also referred to as the Effective Date Accounts)Adviser Fee Schedule.
3.6 Effective as of the Completion Date, Seller waives any claim it may have against the Company that has not either (i) arisen in the Ordinary Course of Business (including any of the services to be phased out as referred to in clause 6.27) or (ii) is described in this Agreement (the latter including the Current Account Debt), and irrevocably offers to terminate any contract between Seller and the Company at no cost to the Company. Prior to the Completion Date, Seller will and will cause each of its Affiliates to repay, in full, prior to the Completion, all indebtedness owed to the Company by the Seller or such Affiliate. Prior to the Effective Date, Seller will cause the Company to repay all interest bearing indebtedness for borrowed money to third party lenders such that, at the Effective Date, the Company shall have no interest bearing debt, other than any intercompany debt owed by the Company to the Seller, which shall be taken into account in clause 2.2.
3.7 Seller will ensure that the Company takes all reasonable steps to maintain and preserve good commercial relationships with its suppliers and customers and with its employees and otherwise preserve the goodwill of the Business up to and including the Completion Date.
3.8 The Seller will use best efforts to file or cause the Company to file all Tax returns to the extent they are due at a date prior to and including the Completion Date, by April 30, 2011, and Seller will not apply for a extension in relation to the corporate income tax return 2010, and to timely pay any Taxes in respect of such Tax returns filed or in respect of Tax assessments raised to the extent due and payable at a date prior to and including the Completion Date.
3.9 Up to and including the Completion Date the Seller will cause the Company to refrain from commencing any litigation proceedings of any kind or settle any litigation proceedings, without the prior written consent of the Purchaser, such consent not to be unreasonably withheld.
3.10 The Seller will cause the Company to maintain all insurance policies relating to its Business in full force and effect, covering property, fire, casualty and liability, as currently in place or in place during the twelve months prior to the Effective Date and will neither cancel or permit to lapse any such insurance policies prior to the Completion Date.
3.11 To the extent any of the trademarks, service marks, copyrights, know how or any other intellectual property rights used in the Business of the Company as of the date of this Agreement, other than the Logo or other intellectual property rights that are also used by the Seller or its Affiliates or divested Affiliates in the conduct of their respective businesses, are owned by or registered in the name of the Seller as of the date hereof, Seller shall ensure that the ownership of such intellectual property rights are assigned and transferred to the Company prior to the Completion Date or that a non-exclusive, fully paid-up license is granted to the Company to utilize such shared intellectual property rights in the Company’s Business. Seller shall further take all actions or cause the Company to take all actions required to keep such intellectual property rights used by the Company in its Business in full force and effect through the Completion Date,
3.12 The Seller will cause the Company to timely pay in full to its employees all wages, salaries, bonuses, severance payments and other benefits as and when due and payable and to withhold and pay to the appropriate governmental authorities all wage or salaries tax, social insurance charges (both employee and employer) and all other amounts required to be paid in full compliance with applicable law, up to and including the
Appears in 1 contract
Sources: Agreement for the Sale and Purchase of the Rhiag Group (LKQ Corp)
PRE-COMPLETION UNDERTAKINGS. 3.1 From 7.1 Between the execution of this Agreement and the Completion Date:
7.1.1 the Institutional Seller and each Senior Management Seller severally agrees that it shall not (where applicable) without the prior written approval of the Buyer exercise any voting rights over the Securities held by it to approve any of the numbered matters specified in Schedule 3 save to the extent that such action is Permitted Leakage or is expressly provided for in the Transaction Documents; and
7.1.2 each Senior Management Seller severally undertakes to the Buyer that he shall, in each case to the extent that he is reasonably able and legally permitted or entitled to do so by exercising his rights as a shareholder, director (after taking into account any applicable fiduciary duties) and/or employee (as applicable): (i) in each case save to the extent that such action is Permitted Leakage or is expressly provided for in the Transaction Documents, procure that each of the Group Companies does 004600-0228-14943-Active.18252126.10 not take or agree to take any of the numbered actions specified in Schedule 3; and (ii) procure that each of the Group Companies will carry on its business in the usual and ordinary course of business; and
7.1.3 the Institutional Seller undertakes to the Buyer that it will not exercise its voting rights as a shareholder, or if requested give any consent under any investment or shareholder agreement affecting the Company, to approve any of the matters specified in Schedule 3 save to the extent that such action is Permitted Leakage or is expressly provided for in the Transaction Documents.
7.2 Clause 7.1 does not apply in respect of and shall not operate so as to restrict or prevent:
7.2.1 the completion or performance of actions which are necessary to discharge any obligations undertaken pursuant to any legal or regulatory obligation in accordance with and pursuant to any contract, arrangement, licence or consent in the form disclosed in the Data Room prior to the date of this Agreement until the Completion Date (and entered into by or the earlier termination of this Agreement in accordance with its terms) the Seller shall or shall procure that the Company shall, except as required under this Agreement or with the prior written consent relating to any member of the Purchaser and to the extent permitted under applicable law:
(a) carry on the Business Group in the Ordinary Course usual and ordinary course of Business and in accordance with the terms of this Agreement;
(b) allow the Purchaser business prior to have reasonable access, during normal business hours, to the offices of the Company and to its respective properties, books, records and employees, for the purpose of permitting the Purchaser to conduct confirmatory due diligence and ensure compliance by the Seller with the terms of this clause 3; provided however that (i) the Purchaser shall make the request thereto to the Seller at least five Business Days in advance, (ii) the Seller shall be free to join (or have a third party join) the visit, and (iii) such access shall be at reasonable times and shall not unreasonably disrupt the personnel and operation of the Company and shall solely be requested by the Purchaser for the purpose of the Transaction.
3.2 From the date of this Agreement until (or, in the Completion Date (case of a licence or consent, issued or granted);
7.2.2 any action undertaken or omitted at the earlier termination of this Agreement in accordance with its terms) the Seller shall not or shall procure that the Company shall not, except as required under this Agreement written request or with the prior written consent of the Purchaser Buyer (and to the extent permitted under applicable law:
(a) take any of the following actions or decisions concerning the Business or the Company:
(i) resolve to change its name or to alter its articles of association;
(ii) modify the rights attached to the Shares;
(iii) allot or issue or agree to allot or issue any shares or any options, warrants, or other securities convertible into the share capital of the Company or grant or agree to grant rights which confer on the holder any right to acquire any of the share capital of the Company or other such interest therein;
(iv) reduce, repay, redeem or purchase any of its share capital or effect any other reorganisation of its capital;
(v) declare, pay or make any dividend (whether in cash or in kind) or other distribution to the Seller, other than the Pre-Completion Distribution;
(vi) resolve to be voluntarily wound up;
(vii) sell, lease, transfer or assign any of its assets other than for fair consideration in the Ordinary Course of Business;
(viii) place any Encumbrances over the Shares or, other than in the Ordinary Course of Business, over any of the assets of the Company;
(ix) make any capital expenditures or any series of capital expenditures outside the Ordinary Course of Business;
(x) make any capital investment in or acquire the share capital or other securities of, or all or substantially all of the assets of, any third party; or
(xi) increase or modify the base compensation of its employees, other than in the Ordinary Course of Business, or adopt, amend, or terminate any Plan or make any commitment to its employees in respect of any existing Plan or otherwise.
(b) otherwise than in the Ordinary Course of Business, terminate, materially amend or materially vary any contract of the Company that involves material rights and obligations for the Company and is required by the Company in order to conduct its Business, unless such is necessary to avoid a material adverse effect to the Business and cannot be delayed;
(c) make any material change in the nature, extent or terms of its Business;
(d) enter into any borrowing or any lending commitments or issue any note, bond or other debt instrument or create, incur, assume or guarantee any indebtedness for borrowed money of the Company (other than the use of overdraft facilities in existence before the date of this Agreement or agreed to in this Agreement, including the Current Account Debt);
(e) enter into any transaction with or for the benefit of the Seller (whether in its capacity as shareholder or director of the Company, or otherwise) or any Affiliate of the Seller, other than in the Ordinary Course of Business on arm’s length terms, or enter into any transaction or agreement with any private individual who is connected with the Seller; or
(f) appoint new auditors of the Company.
3.3 At the request of Purchaserpurpose, the Company shall appoint written consent of or consent by email from either of ▇▇. ▇▇ ▇▇▇▇▇ or ▇▇▇▇▇▇ ▇▇▇▇▇▇ Jong as interim general manager shall constitute consent of the Buyer);
7.2.3 any action set out in Annex 7 to the Business Warranties Disclosure Exhibit;
7.2.4 any matter provided for or action required to give effect to this Agreement, any Transaction Document or the Transaction; or
7.2.5 any action required by Law.
7.3 Between the execution of this Agreement and Completion, the Senior Management Sellers shall:
7.3.1 provide the Buyer on a monthly basis with copies of the consolidated management accounts of Rhiag Bondco S.p.A., no later than three Business Days following the date on which they become available, in a format approved by legal counsel; and
7.3.2 upon the reasonable request of the Buyer, arrange for senior members of the management team of the Company as to meet the Buyer or any person authorised by the Buyer, provided that the Buyer gives notice of no less than five Business Days of any meeting request (such notice not to be given prior to 15 days after the date of this Agreement). The duties Such meetings shall take place no more than once per month and responsibilities the Buyer shall not otherwise interfere with the ordinary operations of the interim general manager business of the Group Companies. Such meetings will have an agenda approved by legal counsel for the Senior Management Sellers and for the Buyer and circulated to participants at least two Business Days in advance and minutes will be taken during such meetings, provided that the Guarantor agrees that it and its Subsidiaries shall not trade in the Group’s publicly traded bonds.
7.4 The Institutional Seller shall consult with the Senior Management Sellers’ Representative in connection with the preparation of the final Approved Company Adviser Fee Schedule and the final Approved Shareholder Adviser Fee Schedule and shall provide the Senior Management Sellers’ Representative with final versions before they are set forth delivered under Clauses 7.5 and 7.6. If the total aggregate level of fees in more detail on the final Approved Company Adviser Fee Schedule 1. In and the event that final Approved Shareholder Adviser Fee Schedule, taken together, exceeds the total aggregate level of fees shown in the estimate of Approved Company Adviser Fee Schedule and the estimate of Approved Shareholder Adviser Fee Schedule, taken together, circulated to the Senior Management Sellers’ legal adviser in advance of execution of this Agreement terminates and in each case including all VAT and similar taxes and disbursements, by more than 10%, the final Approved Company Adviser Fee Schedule and the final Approved Shareholder Adviser Fee Schedule shall require the consent of the Senior Management Sellers’ Representative (such consent not to be unreasonably withheld, delayed or made subject to conditions). If the Senior Management Sellers’ Representative is entitled to withhold consent and does so, the final Approved Company Adviser Fee Schedule and the final Approved Shareholder Adviser Fee Schedule shall be adjusted so that the total aggregate increase over the estimates is 10%. 004600-0228-14943-Active.18252126.10
7.5 The Institutional Seller shall deliver to the Buyer and the Senior Management Sellers’ Representative the Approved Company Adviser Fee Schedule no later than 11:00 a.m. on the basis of clause 4.4 (or for any other reason), fifth Business Day immediately preceding the Company Completion Date.
7.6 The Institutional Seller shall be entitled to terminate the appointment of ▇▇. ▇▇ ▇▇▇▇ with immediate effect, without any payment of damages or compensation being due to ▇▇. ▇▇ ▇▇▇▇ or deliver to the PurchaserBuyer and the Senior Management Sellers’ Representative the Approved Shareholder Adviser Fee Schedule no later than 11:00 a.m. on the fifth Business Day immediately preceding the Completion Date.
3.4 In the period between 7.7 Between the date of this Agreement and the Completion Date, :
7.7.1 the Company may obtain financing from the Seller in the form of Current Account Debt, for the purpose of financing its working capitalSellers undertake that they shall, and shall procure that each relevant Group Company shall serve the Company may repay or set-off any amount of such financing, save that if the outstanding amount of such financing at any time exceeds EUR 200,000 the Company may only obtain further financing Facility Agent with the prior written consent of the Purchaser. If any such amount is not repaid or set-off prior to Completion it shall be payable to the Seller a prepayment and cancellation notice in accordance with clause 5.2 (as Current Account Debt)the terms of the Revolving Credit Facility Agreement in respect of the prepayment and/or cancellation on the Completion Date of the External Financing provided under the Revolving Credit Facility Agreement; and
7.7.2 if requested by the Buyer, the Sellers shall procure that Rhino Bondco S.p.A. furnishes an officer’s certificate meeting the requirements of Section 3.01 of the Senior Notes Indenture to the Trustee together with a notice to noteholders in respect of the redemption of some or all the outstanding notes under the Senior Notes Indenture on the Completion Date provided that Rhino Bondco S.p.A. shall not be required to furnish any such certificate or notices less than 10 days or more than 60 days before the expected date for Completion.
3.5 7.8 In the period between prior to Completion, the date of this Agreement Sellers shall take such action within their power as the Buyer may reasonably request to merge a Subsidiary into its immediate parent company or a new parent company for such purpose (provided that the affected Group Companies are companies incorporated in the same jurisdiction, any consent under the External Financing is obtained and the Completion Date, Seller Buyer confirms that it has received advice for the benefit of the Group that there is no material adverse Tax consequence to the Group or any Group Company). The Sellers shall cause obtain an estimate of the legal expenses to be incurred in effecting any such merger or mergers and such costs up to an aggregate maximum of €15,000 plus VAT shall be included in the Company to complete and provide to the Purchaser financial statements audited by Seller’s Accountants, including profit and loss statements and balance sheets, for the Company for its fiscal years 2008, 2009 and 2010 in each case prepared in accordance with IFRS and consistent with past practices of the Company together with an unqualified audit report issued by Seller’s Accountants (the Annual Financial Statements; the Annual Financial Statement relating to the financial year 2010 also referred to as the Effective Date Accounts)Adviser Fee Schedule.
3.6 Effective as of the Completion Date, Seller waives any claim it may have against the Company that has not either (i) arisen in the Ordinary Course of Business (including any of the services to be phased out as referred to in clause 6.27) or (ii) is described in this Agreement (the latter including the Current Account Debt), and irrevocably offers to terminate any contract between Seller and the Company at no cost to the Company. Prior to the Completion Date, Seller will and will cause each of its Affiliates to repay, in full, prior to the Completion, all indebtedness owed to the Company by the Seller or such Affiliate. Prior to the Effective Date, Seller will cause the Company to repay all interest bearing indebtedness for borrowed money to third party lenders such that, at the Effective Date, the Company shall have no interest bearing debt, other than any intercompany debt owed by the Company to the Seller, which shall be taken into account in clause 2.2.
3.7 Seller will ensure that the Company takes all reasonable steps to maintain and preserve good commercial relationships with its suppliers and customers and with its employees and otherwise preserve the goodwill of the Business up to and including the Completion Date.
3.8 The Seller will use best efforts to file or cause the Company to file all Tax returns to the extent they are due at a date prior to and including the Completion Date, by April 30, 2011, and Seller will not apply for a extension in relation to the corporate income tax return 2010, and to timely pay any Taxes in respect of such Tax returns filed or in respect of Tax assessments raised to the extent due and payable at a date prior to and including the Completion Date.
3.9 Up to and including the Completion Date the Seller will cause the Company to refrain from commencing any litigation proceedings of any kind or settle any litigation proceedings, without the prior written consent of the Purchaser, such consent not to be unreasonably withheld.
3.10 The Seller will cause the Company to maintain all insurance policies relating to its Business in full force and effect, covering property, fire, casualty and liability, as currently in place or in place during the twelve months prior to the Effective Date and will neither cancel or permit to lapse any such insurance policies prior to the Completion Date.
3.11 To the extent any of the trademarks, service marks, copyrights, know how or any other intellectual property rights used in the Business of the Company as of the date of this Agreement, other than the Logo or other intellectual property rights that are also used by the Seller or its Affiliates or divested Affiliates in the conduct of their respective businesses, are owned by or registered in the name of the Seller as of the date hereof, Seller shall ensure that the ownership of such intellectual property rights are assigned and transferred to the Company prior to the Completion Date or that a non-exclusive, fully paid-up license is granted to the Company to utilize such shared intellectual property rights in the Company’s Business. Seller shall further take all actions or cause the Company to take all actions required to keep such intellectual property rights used by the Company in its Business in full force and effect through the Completion Date,
3.12 The Seller will cause the Company to timely pay in full to its employees all wages, salaries, bonuses, severance payments and other benefits as and when due and payable and to withhold and pay to the appropriate governmental authorities all wage or salaries tax, social insurance charges (both employee and employer) and all other amounts required to be paid in full compliance with applicable law, up to and including the
Appears in 1 contract
Sources: Agreement for the Sale and Purchase of the Rhiag Group (LKQ Corp)
PRE-COMPLETION UNDERTAKINGS. 3.1 From the date of this Agreement until the Completion Date (or the earlier termination of this Agreement in accordance with its terms) the Seller shall or 5.01 The Vendors undertake that they shall procure that before the Company shallCompletion Date, except as required under this Agreement or with the prior written consent of the Purchaser and to or otherwise as contemplated under this agreement, the extent permitted under applicable law:Company shall:-
(a) carry on the Business in the Ordinary Course of Business and in accordance with the terms of this Agreementnot issue, or agree to issue, any share or loan capital or grant, or agree to grant, any option over or right to acquire or to subscribe for any share or loan capital;
(b) allow not enter into any transaction, agreement or contract, trade or carry on business, acquire or dispose of any interest in any asset or create or undertake any capital commitment or expenditure or actual or contingent liability whatsoever;
(c) not create or permit to arise any mortgage, charge (fixed or floating), lien, pledge, other form of security or encumbrance or equity of whatsoever nature, whether similar to the foregoing or not, nor in respect of any part of its undertaking, property or assets other than liens arising by operation of law in amounts which are not material;
(d) not borrow any money;
(e) continue to comply with and duly perform and discharge its duties and obligations (including payment obligations) under all agreements and contracts entered into by it and discharge all liabilities in relation thereto which accrue due for the period prior to Completion;
(f) not amend its Memorandum and/or Articles of Association;
(g) not hire any employee, enter into any service agreements with directors or officers;
(h) not establish any pension, retirement scheme, share option scheme, profit sharing or bonus scheme or any other benefit scheme;
(i) not carry on any business other than its existing business;
(j) not enter into any partnership or joint venture arrangement;
(k) not establish or open or close any branch of office; and
(l) not dispose of the ownership, possession, custody or control of any corporate or other books or records which are required to be delivered to the Purchaser under this agreement or are required under any law; regulation or rule to have be kept by the Company.
5.02 Immediately after the signing of this agreement, the Purchaser and any persons authorized by him (including without limitation any prospective financing party and the employees, officers and professional advisers of the Purchaser or any prospective financing party) shall by prior appointment be given reasonable access, during normal business hours, access to the offices books, minutes, records, documents, title deeds and such other information of the Company and to its respective properties, books, records and employees, for the purpose of permitting the Purchaser to conduct confirmatory due diligence and ensure compliance by the Seller with the terms of this clause 3; provided however that (i) the Purchaser shall make the request thereto to the Seller at least five Business Days in advance, (ii) the Seller shall be free to join (or have a third party join) the visit, and (iii) such access shall be at reasonable times and shall not unreasonably disrupt the personnel and operation of the Company and shall solely be requested by the Purchaser for the purpose of the Transaction.
3.2 From the date of this Agreement until the Completion Date (or the earlier termination of this Agreement in accordance with its terms) the Seller shall not or shall procure that the Company shall not, except as required under this Agreement or with upon the prior written consent of the Purchaser and to the extent permitted under applicable law:
Vendors (a) take any of the following actions or decisions concerning the Business or the Company:
(i) resolve to change its name or to alter its articles of association;
(ii) modify the rights attached to the Shares;
(iii) allot or issue or agree to allot or issue any shares or any options, warrants, or other securities convertible into the share capital of the Company or grant or agree to grant rights which confer on the holder any right to acquire any of the share capital of the Company or other such interest therein;
(iv) reduce, repay, redeem or purchase any of its share capital or effect any other reorganisation of its capital;
(v) declare, pay or make any dividend (whether in cash or in kind) or other distribution to the Seller, other than the Pre-Completion Distribution;
(vi) resolve to be voluntarily wound up;
(vii) sell, lease, transfer or assign any of its assets other than for fair consideration in the Ordinary Course of Business;
(viii) place any Encumbrances over the Shares or, other than in the Ordinary Course of Business, over any of the assets of the Company;
(ix) make any capital expenditures or any series of capital expenditures outside the Ordinary Course of Business;
(x) make any capital investment in or acquire the share capital or other securities of, or all or substantially all of the assets of, any third party; or
(xi) increase or modify the base compensation of its employees, other than in the Ordinary Course of Business, or adopt, amend, or terminate any Plan or make any commitment to its employees in respect of any existing Plan or otherwise.
(b) otherwise than in the Ordinary Course of Business, terminate, materially amend or materially vary any contract of the Company that involves material rights and obligations for the Company and is required by the Company in order to conduct its Business, unless such is necessary to avoid a material adverse effect to the Business and cannot be delayed;
(c) make any material change in the nature, extent or terms of its Business;
(d) enter into any borrowing or any lending commitments or issue any note, bond or other debt instrument or create, incur, assume or guarantee any indebtedness for borrowed money of the Company (other than the use of overdraft facilities in existence before the date of this Agreement or agreed to in this Agreement, including the Current Account Debt);
(e) enter into any transaction with or for the benefit of the Seller (whether in its capacity as shareholder or director of the Company, or otherwise) or any Affiliate of the Seller, other than in the Ordinary Course of Business on arm’s length terms, or enter into any transaction or agreement with any private individual who is connected with the Seller; or
(f) appoint new auditors of the Company.
3.3 At the request of Purchaser, the Company shall appoint ▇▇. ▇▇▇▇▇▇ ▇▇ Jong as interim general manager of the Company as of the date of this Agreement. The duties and responsibilities of the interim general manager are set forth in more detail on Schedule 1. In the event that this Agreement terminates on the basis of clause 4.4 (or for any other reason), the Company shall be entitled to terminate the appointment of ▇▇. ▇▇ ▇▇▇▇ with immediate effect, without any payment of damages or compensation being due to ▇▇. ▇▇ ▇▇▇▇ or to the Purchaser.
3.4 In the period between the date of this Agreement and the Completion Date, the Company may obtain financing from the Seller in the form of Current Account Debt, for the purpose of financing its working capital, and the Company may repay or set-off any amount of such financing, save that if the outstanding amount of such financing at any time exceeds EUR 200,000 the Company may only obtain further financing with the prior written consent of the Purchaser. If any such amount is not repaid or set-off prior to Completion it shall be payable to the Seller in accordance with clause 5.2 (as Current Account Debt).
3.5 In the period between the date of this Agreement and the Completion Date, Seller shall cause the Company to complete and provide to the Purchaser financial statements audited by Seller’s Accountants, including profit and loss statements and balance sheets, for the Company for its fiscal years 2008, 2009 and 2010 in each case prepared in accordance with IFRS and consistent with past practices of the Company together with an unqualified audit report issued by Seller’s Accountants (the Annual Financial Statements; the Annual Financial Statement relating to the financial year 2010 also referred to as the Effective Date Accounts).
3.6 Effective as of the Completion Date, Seller waives any claim it may have against the Company that has not either (i) arisen in the Ordinary Course of Business (including any of the services to be phased out as referred to in clause 6.27) or (ii) is described in this Agreement (the latter including the Current Account Debt), and irrevocably offers to terminate any contract between Seller and the Company at no cost to the Company. Prior to the Completion Date, Seller will and will cause each of its Affiliates to repay, in full, prior to the Completion, all indebtedness owed to the Company by the Seller or such Affiliate. Prior to the Effective Date, Seller will cause the Company to repay all interest bearing indebtedness for borrowed money to third party lenders such that, at the Effective Date, the Company shall have no interest bearing debt, other than any intercompany debt owed by the Company to the Seller, which shall be taken into account in clause 2.2.
3.7 Seller will ensure that the Company takes all reasonable steps to maintain and preserve good commercial relationships with its suppliers and customers and with its employees and otherwise preserve the goodwill of the Business up to and including the Completion Date.
3.8 The Seller will use best efforts to file or cause the Company to file all Tax returns to the extent they are due at a date prior to and including the Completion Date, by April 30, 2011, and Seller will not apply for a extension in relation to the corporate income tax return 2010, and to timely pay any Taxes in respect of such Tax returns filed or in respect of Tax assessments raised to the extent due and payable at a date prior to and including the Completion Date.
3.9 Up to and including the Completion Date the Seller will cause the Company to refrain from commencing any litigation proceedings of any kind or settle any litigation proceedings, without the prior written consent of the Purchaser, such consent not to be unreasonably withheld.
3.10 The Seller will cause the Company to maintain all insurance policies relating to its Business in full force and effect, covering property, fire, casualty and liability, as currently in place or in place during the twelve months prior to the Effective Date and will neither cancel or permit to lapse any such insurance policies prior to the Completion Date.
3.11 To the extent any of the trademarks, service marks, copyrights, know how or any other intellectual property rights used in the Business of the Company as of the date of this Agreement, other than the Logo or other intellectual property rights that are also used by the Seller or its Affiliates or divested Affiliates in the conduct of their respective businesses, are owned by or registered in the name of the Seller as of the date hereof, Seller shall ensure that the ownership of such intellectual property rights are assigned and transferred to the Company prior to the Completion Date or that a non-exclusive, fully paid-up license is granted to the Company to utilize such shared intellectual property rights in the Company’s Business. Seller shall further take all actions or cause the Company ) permitted to take all actions required to keep such intellectual property rights used by the Company in its Business in full force and effect through the Completion Date,
3.12 The Seller will cause the Company to timely pay in full to its employees all wages, salaries, bonuses, severance payments and other benefits as and when due and payable and to withhold and pay to the appropriate governmental authorities all wage or salaries tax, social insurance charges (both employee and employer) and all other amounts required to be paid in full compliance with applicable law, up to and including thecopies thereof before Completion.
Appears in 1 contract
PRE-COMPLETION UNDERTAKINGS. 3.1 From 6.1 Except as otherwise agreed in writing with the Buyer, the Investor Sellers and Senior Manager Sellers agree (i) with the Buyer and (ii) amongst themselves, that:
6.1.1 between the date of this Agreement until the Completion Date (or the earlier termination of this Agreement in accordance with its terms) the Seller and Completion, they shall or shall procure that the Company shall, except as required under this Agreement or with the prior written consent of the Purchaser and to the extent permitted under applicable law:
(a) carry on the Business in the Ordinary Course of Business and in accordance with the terms of this Agreement;
(b) allow the Purchaser to have reasonable access, during normal business hours, to the offices of the Company and to its respective properties, books, records and employees, for the purpose of permitting the Purchaser to conduct confirmatory due diligence and ensure compliance by the Seller with the terms of this clause 3; provided however that (i) the Purchaser shall make the request thereto to the Seller at least five Business Days in advance, (ii) the Seller shall be free to join (or have a third party join) the visit, and (iii) such access shall be at reasonable times and shall not unreasonably disrupt the personnel and operation of the Company and shall solely be requested by the Purchaser for the purpose of the Transaction.
3.2 From the date of this Agreement until the Completion Date (or the earlier termination of this Agreement in accordance with its terms) the Seller shall not or shall procure that the Company shall not, except as required under this Agreement or with the prior written consent of the Purchaser and to the extent permitted under applicable law:
(a) take any of the following actions or decisions concerning the Business or the Company:
(i) resolve to change its name or to alter its articles of association;
(ii) modify the rights attached to the Shares;
(iii) allot or issue or agree to allot or issue any shares or any options, warrants, or other securities convertible into the share capital of the Company or grant or agree to grant rights which confer on the holder any right to acquire any of the share capital of the Company or other such interest therein;
(iv) reduce, repay, redeem or purchase any of its share capital or effect any other reorganisation of its capital;
(v) declare, pay or make any dividend (whether in cash or in kind) or other distribution to the Seller, other than the Pre-Completion Distribution;
(vi) resolve to be voluntarily wound up;
(vii) sell, lease, transfer or assign any of its assets other than for fair consideration in the Ordinary Course of Business;
(viii) place any Encumbrances over the Shares or, other than in the Ordinary Course of Business, over any of the assets of the Company;
(ix) make any capital expenditures or any series of capital expenditures outside the Ordinary Course of Business;
(x) make any capital investment in or acquire the share capital or other securities of, or all or substantially exercise all of the assets oftheir control rights (including, any third party; or
but not limited to, as directors and/or officers (xi) increase or modify the base compensation of its employeesin each case, other than in the Ordinary Course of Business, or adopt, amend, or terminate any Plan or make any commitment subject to its employees their fiduciary duties in respect of the relevant companies) and/or shareholders) in so far as they are legally able to (and within the confines of any existing Plan or otherwise.
(bapplicable competition law) otherwise than to procure the performance and observance by each Group Company, or, where stated in the Ordinary Course of BusinessSchedule 4, terminate, materially amend or materially vary any contract of the Company that involves material rights and obligations for the Company and is required by the Company in order to conduct its Business, unless such is necessary to avoid a material adverse effect to the Business and cannot be delayed;
(c) make any material change in the nature, extent or terms of its Business;
(d) enter into any borrowing or any lending commitments or issue any note, bond or other debt instrument or create, incur, assume or guarantee any indebtedness for borrowed money of the Company (other than the use of overdraft facilities in existence before the date of this Agreement or agreed to in this Agreement, including the Current Account Debt);
(e) enter into any transaction with or for the benefit of the Seller (whether in its capacity as shareholder or director of the Company, or otherwise) or any Affiliate of the Seller, other than those matters listed in the Ordinary Course Part A of Business on arm’s length terms, or enter into any transaction or agreement with any private individual who is connected with the Seller; orSchedule 4 and by each Joint Venture Company of those matters listed in Parts A to C of Schedule 4;
(f) appoint new auditors of the Company.
3.3 At the request of Purchaser, the Company shall appoint ▇▇. ▇▇▇▇▇▇ ▇▇ Jong as interim general manager of the Company as of the date of this Agreement. The duties and responsibilities of the interim general manager are set forth in more detail on Schedule 1. In the event that this Agreement terminates on the basis of clause 4.4 (or for any other reason), the Company shall be entitled to terminate the appointment of ▇▇. ▇▇ ▇▇▇▇ with immediate effect, without any payment of damages or compensation being due to ▇▇. ▇▇ ▇▇▇▇ or to the Purchaser.
3.4 In the period 6.1.2 between the date of this Agreement and the Satisfaction Date or, if earlier, Completion, they shall (within the confines of any applicable competition law) procure the performance and observance by each Group Company, or, where stated in Schedule 4, by the Company, of those matters listed in Part B of Schedule 4, save in respect of the Joint Venture Companies;
6.1.3 if Completion occurs after the Satisfaction Date, between the Company may obtain financing from the Seller in the form of Current Account Debt, for the purpose of financing its working capitalSatisfaction Date and Completion, and the Company may repay or set-off any amount of such financing, save that if the outstanding amount of such financing at any time exceeds EUR 200,000 the Company may only obtain further financing with the prior written consent in respect of the Purchaser. If Joint Venture Companies, in respect of:
(a) the Investor Sellers, they shall exercise all of their control rights (including, but not limited to, as directors and/or officers (in each case, subject to their fiduciary duties in respect of the relevant companies) and/or shareholders) in so far as they are legally able to (and within the confines of any such amount is not repaid or set-off prior applicable competition law) to Completion it procure; and
(b) the Senior Manager Sellers, they shall be payable (subject to their fiduciary duties as directors and/or officers of the Seller relevant companies and within the confines of any applicable competition law) procure, the performance and observance by each Group Company, or, where stated in accordance with clause 5.2 (as Current Account Debt).Schedule 4, by the Company, of those matters listed in Part B of Schedule 4; and
3.5 In the period 6.1.4 between the date of this Agreement and Completion, they shall (within the Completion Dateconfines of any applicable competition law) procure the performance and observance by each Group Company of those matters listed in Part C of Schedule 4, Seller shall cause the Company to complete and provide to the Purchaser financial statements audited by Seller’s Accountants, including profit and loss statements and balance sheets, for the Company for its fiscal years 2008, 2009 and 2010 save in each case prepared in accordance with IFRS and consistent with past practices respect of the Company together with an unqualified audit report issued by Seller’s Accountants (the Annual Financial Statements; the Annual Financial Statement relating to the financial year 2010 also referred to as the Effective Date Accounts)Joint Venture Companies.
3.6 Effective 6.2 Clause 6.1 shall not operate so as of to prevent or restrict:
6.2.1 any action undertaken pursuant to a binding arrangement or agreement existing at the Completion Date, Seller waives any claim it may have against the Company that date hereof which has not either (i) arisen in the Ordinary Course of Business (including any of the services to be phased out as referred to in clause 6.27) or (ii) is described in this Agreement (the latter including the Current Account Debt), and irrevocably offers to terminate any contract between Seller and the Company at no cost to the Company. Prior to the Completion Date, Seller will and will cause each of its Affiliates to repay, in full, been Disclosed prior to the Completion, all indebtedness owed date of this Agreement or was not required to be so Disclosed pursuant to the Company by the Seller or such Affiliate. Prior Management Deed;
6.2.2 any matter which is specifically disclosed in writing to the Effective Date, Seller will cause the Company to repay all interest bearing indebtedness for borrowed money to third party lenders such that, at the Effective Date, the Company shall have no interest bearing debt, other than any intercompany debt owed by the Company to the Seller, which shall be taken into account in clause 2.2.
3.7 Seller will ensure that the Company takes all reasonable steps to maintain and preserve good commercial relationships with its suppliers and customers and with its employees and otherwise preserve the goodwill of the Business up to and including the Completion Date.
3.8 The Seller will use best efforts to file or cause the Company to file all Tax returns to the extent they are due at a date Buyer prior to and including the Completion Date, by April 30, 2011, and Seller will not apply for a extension in relation to the corporate income tax return 2010, and to timely pay any Taxes in respect of such Tax returns filed or in respect of Tax assessments raised to the extent due and payable at a date prior to and including the Completion Date.
3.9 Up to and including the Completion Date the Seller will cause the Company to refrain from commencing any litigation proceedings of any kind or settle any litigation proceedings, without the prior written consent of the Purchaser, such consent not to be unreasonably withheld.
3.10 The Seller will cause the Company to maintain all insurance policies relating to its Business in full force and effect, covering property, fire, casualty and liability, as currently in place or in place during the twelve months prior to the Effective Date and will neither cancel or permit to lapse any such insurance policies prior to the Completion Date.
3.11 To the extent any of the trademarks, service marks, copyrights, know how or any other intellectual property rights used in the Business of the Company as of the date of this Agreement, other than the Logo ;
6.2.3 any arrangements or other intellectual property rights that are also used agreements between Group Companies;
6.2.4 any matter reasonably undertaken in good faith by the Seller or its Affiliates or divested Affiliates in the conduct of their respective businesses, are owned by or registered in the name any member of the Seller as Group in an emergency or disaster situation with the intention of minimising any adverse effect of such situation on the date hereofGroup, Seller shall ensure provided that the ownership Sellers’ Representatives shall notify the Buyer of any such intellectual property rights are assigned emergency or disaster situation and transferred the action to minimize the Company prior to adverse effect on the Completion Date Group as soon as reasonably practicable and, in any event, within 3 Business Days after such emergency or that a non-exclusive, fully paid-up license is granted to the Company to utilize such shared intellectual property rights in the Company’s Business. Seller shall further take all actions or cause the Company to take all actions required to keep such intellectual property rights used by the Company in its Business in full force and effect through the Completion Date,disaster situation;
3.12 The Seller will cause the Company to timely pay in full to its employees all wages, salaries, bonuses, severance payments and other benefits as and when due and payable and to withhold and pay to the appropriate governmental authorities all wage or salaries tax, social insurance charges (both employee and employer) and all other amounts 6.2.5 any action required to be paid in full compliance undertaken to comply with applicable lawlegal or regulatory requirement;
6.2.6 any matter necessary in order to give effect to, up implement or complete this Agreement;
6.2.7 any matter necessary to give effect to, implement or complete the Kenya Reorganisation;
6.2.8 any increase in emoluments of or change in the terms of employment of any category of employees of any member of the Group where such increase or change is made in the ordinary course consistent with past practice of the relevant employing member of the Group;
6.2.9 any action taken with the written consent of or at the request of the Buyer; or
6.2.10 any amendments to the articles of association of any Group Company, where such amendments are solely related to such Group Company’s board of directors (including composition, quorum at board meetings and including thevoting rights at board meetings).
Appears in 1 contract
Sources: Agreement for the Sale and Purchase of Shares (Post Holdings, Inc.)
PRE-COMPLETION UNDERTAKINGS. 3.1 From the date of this Agreement until the Completion Date (or the earlier termination of this Agreement in accordance with its terms) the Seller shall or shall procure that the Company shall4.1 Pending Completion, except as required under this Agreement or with the prior written consent each of the Purchaser Vendor and to the extent permitted under applicable lawWarrantor shall ensure that:
(a) the Target Company shall carry on the Business its business in the Ordinary Course ordinary and usual course and shall not make (or agree to make) any payment other than payments in the ordinary and usual course of Business and in accordance with the terms of this Agreementtrading;
(b) allow the Purchaser Target Company shall take all reasonable steps to have preserve and protect its assets;
(c) the Purchaser’s representatives shall be allowed, upon reasonable access, notice and during normal business hours, access to the offices books and records of each member of the Company and to its respective propertiesTarget Group (including, without limitation, all statutory books, records minute books, leases, contracts, supplier lists and employees, for the purpose of permitting the Purchaser to conduct confirmatory due diligence and ensure compliance by the Seller .customer lists) together with the terms of this clause 3; provided however that (i) the Purchaser shall make the request thereto to the Seller at least five Business Days in advance, (ii) the Seller shall be free to join (or have a third party join) the visit, and (iii) such access shall be at reasonable times and shall not unreasonably disrupt the personnel and operation of the Company and shall solely be requested by the Purchaser for the purpose of the Transaction.
3.2 From the date of this Agreement until the Completion Date (or the earlier termination of this Agreement in accordance with its terms) the Seller shall not or shall procure that the Company shall not, except as required under this Agreement or with the prior written consent of the Purchaser and to the extent permitted under applicable law:
(a) take any of the following actions or decisions concerning the Business or the Company:
(i) resolve to change its name or to alter its articles of association;
(ii) modify the rights attached to the Shares;
(iii) allot or issue or agree to allot or issue any shares or any options, warrants, or other securities convertible into the share capital of the Company or grant or agree to grant rights which confer on the holder any right to acquire any of the share capital of the Company or other such interest therein;
(iv) reduce, repay, redeem or purchase any of its share capital or effect any other reorganisation of its capital;
(v) declare, pay or make any dividend (whether in cash or in kind) or other distribution to the Seller, other than the Pre-Completion Distribution;
(vi) resolve to be voluntarily wound up;
(vii) sell, lease, transfer or assign any of its assets other than for fair consideration in the Ordinary Course of Business;
(viii) place any Encumbrances over the Shares or, other than in the Ordinary Course of Business, over any of the assets of the Company;
(ix) make any capital expenditures or any series of capital expenditures outside the Ordinary Course of Business;
(x) make any capital investment in or acquire the share capital or other securities of, or all or substantially all of the assets of, any third party; or
(xi) increase or modify the base compensation of its employees, other than in the Ordinary Course of Business, or adopt, amend, or terminate any Plan or make any commitment to its employees in respect of any existing Plan or otherwise.
(b) otherwise than in the Ordinary Course of Business, terminate, materially amend or materially vary any contract of the Company that involves material rights and obligations for the Company and is required by the Company in order to conduct its Business, unless such is necessary to avoid a material adverse effect to the Business and cannot be delayed;
(c) make any material change in the nature, extent or terms of its Businesstake copies;
(d) enter into any borrowing or any lending commitments or issue any note, bond or other debt instrument or create, incur, assume or guarantee any indebtedness for borrowed money no member of the Company Target Group shall do, allow or procure any act or omission which would constitute or give rise to a breach of any Warranty if the Warranties were to be repeated on or at any time before Completion by reference to the facts and circumstances then existing;
(other than e) prompt disclosure is made to the use Purchaser of overdraft facilities all relevant information which comes to the notice of the Vendor or the Warrantor in existence relation to any fact or matter (whether existing on or before the date of this Agreement or agreed arising afterwards) which may constitute a breach of any Warranty if the Warranties were to in this Agreement, including be repeated on or at any time before Completion by reference to the Current Account Debt)facts and circumstances then existing;
(ef) enter into any transaction with or save for the benefit distribution by the Target Company of its profits for the six-month period ended 30 June 2005 to its parent company, no dividend or other distribution shall be declared, paid or made by any member of the Seller Target Group;
(whether in its capacity as shareholder g) no share capital shall be allotted or director issued or agreed to be allotted or issued by any member of the Company, or otherwiseTarget Group;
(h) or any Affiliate all transactions between each member of the Seller, other than in the Ordinary Course of Business Target Group and each Vendor Group Company shall be on arm’s length terms, or enter into any transaction or agreement with any private individual who is connected with the Seller; orcommercial terms and in their respective ordinary and usual course of business;
(fi) appoint new auditors otherwise than in the ordinary course of business, the amount of any Indebtedness owed by each member of the Company.
3.3 At the request of Purchaser, the Company shall appoint ▇▇. ▇▇▇▇▇▇ ▇▇ Jong Target Group or existing as interim general manager of the Company as of the date of this Agreement. The duties and responsibilities of the interim general manager are set forth in more detail on Schedule 1. In the event that this Agreement terminates on the basis of clause 4.4 (or for any other reason), the Company shall be entitled to terminate the appointment of ▇▇. ▇▇ ▇▇▇▇ with immediate effect, without any payment of damages or compensation being due to ▇▇. ▇▇ ▇▇▇▇ or to the Purchaser.
3.4 In the period between at the date of this Agreement shall not be increased or extended and no new Indebtedness shall be entered into or assumed by any such company; and
(j) no action is taken by any member of the Completion Date, the Target Group or any Vendor Group Company may obtain financing from the Seller in the form of Current Account Debt, for the purpose of financing its working capital, and the Company may repay or set-off any amount of such financing, save that if the outstanding amount of such financing at any time exceeds EUR 200,000 the Company may only obtain further financing which is inconsistent with the prior written consent of the Purchaser. If any such amount is not repaid or set-off prior to Completion it shall be payable to the Seller in accordance with clause 5.2 (as Current Account Debt).
3.5 In the period between the date provisions of this Agreement or the consummation of the transactions contemplated by this Agreement.
4.2 Pending Completion, each of the Vendor and the Completion Date, Seller Warrantor shall cause the Company to complete and provide to the Purchaser financial statements audited by Seller’s Accountants, including profit and loss statements and balance sheets, for the Company for its fiscal years 2008, 2009 and 2010 in each case prepared in accordance with IFRS and consistent with past practices of the Company together with an unqualified audit report issued by Seller’s Accountants (the Annual Financial Statements; the Annual Financial Statement relating to the financial year 2010 also referred to as the Effective Date Accounts).
3.6 Effective as of the Completion Date, Seller waives any claim it may have against the Company that has not either (i) arisen in the Ordinary Course of Business (including any of the services to be phased out as referred to in clause 6.27) or (ii) is described in this Agreement (the latter including the Current Account Debt), and irrevocably offers to terminate any contract between Seller and the Company at no cost to the Company. Prior to the Completion Date, Seller will and will cause each of its Affiliates to repay, in full, prior to the Completion, all indebtedness owed to the Company by the Seller or such Affiliate. Prior to the Effective Date, Seller will cause the Company to repay all interest bearing indebtedness for borrowed money to third party lenders such that, at the Effective Date, the Company shall have no interest bearing debt, other than any intercompany debt owed by the Company to the Seller, which shall be taken into account in clause 2.2.
3.7 Seller will ensure that the Company takes all reasonable steps to maintain and preserve good commercial relationships Target Group consults fully with its suppliers and customers and with its employees and otherwise preserve the goodwill of the Business up to and including the Completion Date.
3.8 The Seller will use best efforts to file or cause the Company to file all Tax returns to the extent they are due at a date prior to and including the Completion Date, by April 30, 2011, and Seller will not apply for a extension Purchaser in relation to any matters which may have a material effect upon the corporate income tax return 2010, and to timely pay any Taxes in respect of such Tax returns filed or in respect of Tax assessments raised to the extent due and payable at a date prior to and including the Completion Date.
3.9 Up to and including the Completion Date the Seller will cause the Company to refrain from commencing any litigation proceedings of any kind or settle any litigation proceedings, without Target Group. Without the prior written consent of the Purchaser, such consent not to be unreasonably withheld.
3.10 The Seller will cause the Company to maintain all insurance policies relating to its Business in full force Target Group shall not, and effect, covering property, fire, casualty and liability, as currently in place or in place during the twelve months prior to the Effective Date and will neither cancel or permit to lapse any such insurance policies prior to the Completion Date.
3.11 To the extent any each of the trademarks, service marks, copyrights, know how or any other intellectual property rights used in Vendor and the Business of the Company as of the date of this Agreement, other than the Logo or other intellectual property rights that are also used by the Seller or its Affiliates or divested Affiliates in the conduct of their respective businesses, are owned by or registered in the name of the Seller as of the date hereof, Seller Warrantor shall ensure that the ownership Target Group does not:
(a) enter into any contract or commitment (or make a bid or offer which may lead to a contract or commitment) having a material value or involving material expenditure or which is of a long term or unusual nature or which could involve an obligation of a material nature or which may result in any material change in the nature or scope of the operations of such intellectual property rights are assigned member of the Target Group;
(b) agree to any variation or termination of any existing contract to which that member of the Target Group is a party and transferred to which may have a material effect upon the Company prior to nature or scope of the Completion Date or that a non-exclusive, fully paid-up license is granted to operations of such member of the Company to utilize such shared intellectual property rights Target Group;
(c) (whether in the Company’s Business. Seller shall further take all actions ordinary and usual course of business or cause otherwise) acquire or dispose of, or agree to acquire or dispose of, any material business or any material asset; or
(d) enter into any agreement, contract, arrangement or transaction (whether or not legally binding) other than in the Company to take all actions required to keep such intellectual property rights used by the Company in its Business in full force ordinary and effect through the Completion Date,
3.12 The Seller will cause the Company to timely pay in full to its employees all wages, salaries, bonuses, severance payments and other benefits as and when due and payable and to withhold and pay to the appropriate governmental authorities all wage or salaries tax, social insurance charges (both employee and employer) and all other amounts required to be paid in full compliance with applicable law, up to and including theusual course of business.
Appears in 1 contract
Sources: Conditional Sale and Purchase Agreement (CHINA UNICOM (HONG KONG) LTD)