Reorganization. (a) The Company shall effect such reorganization of its business, operations, subsidiaries and assets or such other transactions (each, a “Pre-Acquisition Reorganization”) as the Purchaser may reasonably request prior to the Expiry Time; provided, however, that the Company need not effect a Pre-Acquisition Reorganization which would impede or materially delay the take-up of Exeter Shares and the consummation of the Contemplated Transactions or that would be prejudicial to the Company, its subsidiaries or the Exeter Securityholders or that would involve a material amount of the time and attention of the Company’s officers or employees. (b) Without limiting the foregoing and other than as set forth in clause (a) above, the Company shall use its best efforts to obtain all necessary consents, approvals or waivers from any persons to effect each Pre-Acquisition Reorganization, and the Company shall cooperate with the Purchaser in structuring, planning and implementing any such Pre-Acquisition Reorganization. The Purchaser shall provide written notice to the Company of any proposed Pre-Acquisition Reorganization at least ten Business Days prior to the Expiry Time. In addition: (i) any Pre-Acquisition Reorganization shall not unreasonably interfere with the Company’s material operations prior to the Effective Time and shall not become effective until the Purchaser shall have waived or confirmed in writing the satisfaction of all conditions in its favour in the Offer and in this Agreement and shall have confirmed in writing that it is prepared to promptly, and without condition, proceed to effect the acquisition of the Exeter Shares; (ii) any Pre-Acquisition Reorganization shall not require the Company to contravene any applicable Laws, its organizational documents or any Material Contract; and (iii) the Company shall not be obligated to take any action that could result in any Taxes being imposed on, or any adverse Tax or other consequences to, any Exeter Securityholder incrementally greater than the Taxes or other consequences to such party in connection with the take-up of Exeter Shares and the consummation of the Offer in the absence of any Pre-Acquisition Reorganization. (c) The Purchaser acknowledges and agrees that the planning for and implementation of any Pre-Acquisition Reorganization shall not be considered a breach of any covenant under this Agreement and shall not be considered in determining whether a representation or warranty of the Company hereunder has been breached. The Purchaser and the Company shall work cooperatively and use commercially reasonable efforts to prepare prior to the Expiry Time all documentation necessary and do such other acts and things as are necessary to give effect to such Pre-Acquisition Reorganization. For greater certainty, the Company shall not be liable for the failure of the Purchaser to benefit from any anticipated Tax efficiency as a result of a Pre-Acquisition Reorganization. (d) The Purchaser agrees that it will be responsible for all costs and expenses associated with any Pre-Acquisition Reorganization to be carried out at its request and shall indemnify and save harmless the Company and its subsidiaries and their respective Representatives from and against any and all liabilities, losses, damages, claims, costs, expenses, interest awards, judgments and penalties suffered or incurred by any of them in connection with or as a result of any such Pre-Acquisition Reorganization (including in respect of any reversal, modification or termination of a Pre-Acquisition Reorganization) and that any Pre-Acquisition Reorganization will not be considered in determining whether a representation or warranty of the Company under this Agreement has been breached (including where any such Pre-Acquisition Reorganization requires the consent of any third party under a Contract). If the Offer is not completed, the Purchaser shall reimburse the Company forthwith for all fees and expenses (including any reasonable professional fees and expenses and taxes) incurred by the Company in considering or effecting all or any part of the Pre-Acquisition Reorganization and shall be responsible for any fees, expenses and costs (including reasonable professional fees and expenses and taxes) of the Company in reversing or unwinding any Pre-Acquisition Reorganization that was effected prior to the Expiry Time.
Appears in 3 contracts
Samples: Support Agreement (Goldcorp Inc), Support Agreement (Exeter Resource Corp), Support Agreement (Goldcorp Inc)
Reorganization. Goldbelt agrees that, upon request by Parent, Goldbelt shall (ai) The Company shall effect such reorganization reorganizations of its business, operations, subsidiaries operations and assets or such other transactions as Parent may request, acting reasonably (each, each a “Pre-Acquisition Reorganization”) as and (ii) co-operate with Parent and its advisors in order to determine the Purchaser may reasonably request prior to nature of the Expiry Time; provided, however, that the Company need not effect a Pre-Acquisition Reorganization which would impede or materially delay the take-up of Exeter Shares Reorganizations that might be undertaken and the consummation of manner in which they might most effectively be undertaken; provided that the Contemplated Transactions or that would be prejudicial to the Company, its subsidiaries or the Exeter Securityholders or that would involve a material amount of the time and attention of the Company’s officers or employees.
(b) Without limiting the foregoing and other than as set forth in clause (a) above, the Company shall use its best efforts to obtain all necessary consents, approvals or waivers from any persons to effect each Pre-Acquisition Reorganization, Reorganizations are not prejudicial to Goldbelt in any material respect and (A) do not result in any breach by Goldbelt of (i) any existing contract or commitment of Goldbelt; or (ii) any Law; or (B) would not reasonably be expected to impede or delay Offeror’s ability to take up and pay for the Company shall cooperate with Goldbelt Shares tendered to the Purchaser in structuring, planning and implementing any such Pre-Acquisition ReorganizationOffer. The Purchaser Parent shall provide written notice to the Company Goldbelt of any proposed Pre-Acquisition Reorganization at least ten Business Days business days prior to the Expiry Time. In addition:
(i) any Pre-Acquisition Reorganization shall not unreasonably interfere with the Company’s material operations prior to the Effective Time Upon receipt of such notice, Parent and shall not become effective until the Purchaser shall have waived or confirmed in writing the satisfaction of all conditions in its favour in the Offer and in this Agreement and shall have confirmed in writing that it is prepared to promptly, and without condition, proceed to effect the acquisition of the Exeter Shares;
(ii) any Pre-Acquisition Reorganization shall not require the Company to contravene any applicable Laws, its organizational documents or any Material Contract; and
(iii) the Company shall not be obligated to take any action that could result in any Taxes being imposed on, or any adverse Tax or other consequences to, any Exeter Securityholder incrementally greater than the Taxes or other consequences to such party in connection with the take-up of Exeter Shares and the consummation of the Offer in the absence of any Pre-Acquisition Reorganization.
(c) The Purchaser acknowledges and agrees that the planning for and implementation of any Pre-Acquisition Reorganization shall not be considered a breach of any covenant under this Agreement and shall not be considered in determining whether a representation or warranty of the Company hereunder has been breached. The Purchaser and the Company Goldbelt shall work cooperatively co-operatively and use commercially reasonable efforts to prepare prior to the Expiry Time all documentation necessary and do all such other acts and things as are necessary to give effect to such Pre-Acquisition Reorganization. For greater certaintyParent and Offeror agree to waive any breach of a representation, the Company shall not be liable for the failure of the Purchaser to benefit from any anticipated Tax efficiency as warranty or covenant by Goldbelt where such breach is a result of an action taken by Goldbelt in good faith pursuant to a Pre-Acquisition Reorganization.
(d) request by Parent or Offeror in accordance with this Section 6.8. The Purchaser agrees that it will be responsible for all costs and expenses associated with any Pre-Acquisition Reorganization to be carried out at its request and shall indemnify and save harmless the Company and its subsidiaries and their respective Representatives from and against any and all liabilities, losses, damages, claims, costs, expenses, interest awards, judgments and penalties suffered or incurred by any of them in connection with or as a result completion of any such Pre-Acquisition Reorganization (shall be subject to the satisfaction of the Minimum Tender Condition and the satisfaction or waiver by Offeror of the other conditions to the Offer set forth in Schedule A and shall be effected immediately prior to any take-up by Offeror of Common Shares tendered to the Offer. If Offeror does not take up and pay for the Common Shares tendered to the Offer, Offeror shall indemnify Goldbelt for all losses and reasonable costs and expenses, including reasonable legal fees and disbursements, incurred in respect of connection with any reversal, modification or termination of a proposed Pre-Acquisition Reorganization) and that any Pre-Acquisition Reorganization will not be considered in determining whether a representation or warranty of the Company under this Agreement has been breached (including where any such Pre-Acquisition Reorganization requires the consent of any third party under a Contract). If the Offer is not completed, the Purchaser shall reimburse the Company forthwith for all fees and expenses (including any reasonable professional fees and expenses and taxes) incurred by the Company in considering or effecting all or any part of the Pre-Acquisition Reorganization and shall be responsible for any fees, expenses and costs (including reasonable professional fees and expenses and taxes) of the Company in reversing or unwinding any Pre-Acquisition Reorganization that was effected prior to the Expiry Time.
Appears in 3 contracts
Samples: Support Agreement (Wega Mining Asa), Support Agreement (Goldbelt Resources LTD), Support Agreement (Wega Mining Asa)
Reorganization. (a) The Company shall effect such reorganization of its businessPrior to the Closing Date, operations, subsidiaries and assets or such other transactions (each, a “Pre-Acquisition Reorganization”) as but in no event later than the Purchaser may reasonably request second business day prior to the Expiry Time; providedClosing Date, howeverDevCo III LP shall form SP Holdings by (i) filing with the Secretary of State of the State of Delaware a certification of formation for limited liability company and (ii) adopting a limited liability company agreement of SP Holdings, that the Company need not effect a Pre-Acquisition Reorganization which would impede or materially delay the take-up of Exeter Shares in each case, in form reasonably acceptable to CNX Gathering and the consummation Partnership. DevCo III LP shall not transfer or convey any of the Contemplated Transactions or that would be prejudicial membership interests in SP Holdings (the “SP Holdings Interests”) prior to the Company, its subsidiaries or the Exeter Securityholders or that would involve a material amount of the time and attention of the Company’s officers or employeesSP Holdings Distribution.
(b) Without limiting Prior to the foregoing Closing Date, but in no event later than the first business day prior the Closing Date, but effective for all purposes as of the Effective Time, DevCo III LP shall contribute, assign, transfer, convey and other than as set forth in clause (a) abovedeliver to SP Holdings, and DevCo III LP shall cause SP Holdings to receive and accept, the Company DevCo Xxxxxxx-Penns Assets. DevCo III LP shall use its best efforts to obtain all necessary consents, approvals or waivers from any persons to effect each Pre-Acquisition Reorganizationreserve and retain, and the Company DevCo Xxxxxxx-Penns Assets shall cooperate with not include, the Purchaser Excluded Assets. To effect such contribution and assignment, DevCo III LP shall, and shall cause SP Holdings to, execute, acknowledge and deliver sufficient counterparts of the DevCo Assignment to facilitate recording of the DevCo Assignment in structuring, planning and implementing any such Pre-Acquisition Reorganization. The Purchaser shall provide written notice the applicable counties.
(c) Prior to the Company Closing Date, but in no event later than the first business day prior the Closing Date, but effective for all purposes as of any proposed Prethe Effective Time, CNX Gathering shall assign, transfer, convey and deliver to SP Holdings, and DevCo III LP shall cause SP Holdings to receive and accept, the CNX Xxxxxxx-Acquisition Reorganization at least ten Business Days Penns Assets. To effect such contribution and assignment, CNX Gathering shall, and DevCo III LP shall cause SP Holdings to, execute, acknowledge and deliver sufficient counterparts of the CNX Assignment to facilitate recording of the CNX Assignment in the applicable counties.
(d) On the Closing Date immediately prior to the Expiry Time. In addition:Closing, and for the avoidance of doubt following the transactions contemplated by Section 5.2(a), Section 5.2(b) and Section 5.2(c), (such distributions and conveyances contemplated by this Section 5.2(d), the “SP Holdings Distribution”):
(i) any Pre-Acquisition Reorganization shall not unreasonably interfere DevCo III LP hereby (A) distributes all of the membership interests in and to SP Holdings to its partners pro rata in accordance with their ownership interests in DevCo III LP, with the Company’s material operations prior DevCo Interests being distributed to GP III and the Effective Time CNX Interests being distributed to CNX Gathering, in each case, free and shall not become effective until the Purchaser shall have waived or confirmed in writing the satisfaction clear of all conditions in its favour in Liens (other than restrictions under securities laws) and (B) designates GP III as the Offer and in this Agreement and shall have confirmed in writing that it is prepared to promptly, and without condition, proceed to effect the acquisition managing member of the Exeter SharesSP Holdings;
(ii) any Pre-Acquisition Reorganization shall not require following such distribution from DevCo III LP as contemplated in Section 5.2(d)(i), GP III distributes the Company DevCo Interests to contravene any applicable LawsOpCo, its organizational documents or any Material Contractfree and clear of all Liens (other than restrictions under securities laws), and OpCo receives, accepts and acquires the DevCo Interests;
(iii) following such distribution from GP III as contemplated in Section 5.2(d)(ii), OpCo contributes, transfers, assigns and conveys the DevCo Interests to GP I, free and clear of all Liens (other than restrictions under securities laws) and GP I receives, accepts and acquires the DevCo Interests; and
(iiiiv) following such contribution from OpCo as contemplated in Section 5.2(d)(iii), GP I contributes, transfers, assigns and conveys the Company shall not be obligated DevCo Interests to take any action that could result in any Taxes being imposed onDevCo I LP, or any adverse Tax or free and clear of all Liens (other consequences tothan restrictions under securities laws) and DevCo I LP receives, any Exeter Securityholder incrementally greater than accepts and acquires the Taxes or other consequences to such party in connection with the take-up of Exeter Shares and the consummation of the Offer in the absence of any Pre-Acquisition ReorganizationDevCo Interests.
(ce) The Purchaser acknowledges To the extent required and agrees that the planning for and implementation of any Pre-Acquisition Reorganization shall not be considered a breach of any covenant under permitted by applicable law, this Agreement and shall not be considered in determining whether also constitute a representation “deed,” “xxxx of sale” or warranty “assignment” of the Company hereunder has been breached. The Purchaser and the Company shall work cooperatively and use commercially reasonable efforts to prepare prior transfers related to the Expiry Time all documentation necessary and do such other acts and things as are necessary to give effect to such Pre-Acquisition Reorganization. For greater certainty, the Company shall not be liable for the failure of the Purchaser to benefit from any anticipated Tax efficiency as a result of a Pre-Acquisition ReorganizationSP Holdings Distribution.
(df) The Purchaser agrees Partnership understands and acknowledges that it will be responsible for all costs (i) the bonds, letters of credit, guarantees, deposits and expenses associated other pre-payments, if any, posted by DevCo III LP or CNX Gathering, as applicable, with any PreGovernmental Authorities or any other third parties and (ii) certain permits held by DevCo III LP or CNX Gathering, as applicable, in each case, relating to the Xxxxxxx-Acquisition Reorganization Penns Assets may not be transferable to be carried out at its request SP Holdings. As soon as reasonably practicable, the Partnership shall obtain, or cause SP Holdings or DevCo I LP to obtain, any bonds, guarantees, deposits and shall indemnify and save harmless the Company and its subsidiaries and their respective Representatives from and against any and all liabilities, losses, damages, claims, costs, expenses, interest awards, judgments and penalties suffered other pre-payments or incurred permits required by any of them in connection with Governmental Authority to own or as a result of any such Preoperate the Xxxxxxx-Acquisition Reorganization (including in respect of any reversal, modification or termination of a Pre-Acquisition Reorganization) and that any Pre-Acquisition Reorganization will not be considered in determining whether a representation or warranty of the Company under this Agreement has been breached (including where any such Pre-Acquisition Reorganization requires the consent of any third party under a Contract). If the Offer is not completed, the Purchaser shall reimburse the Company forthwith for all fees and expenses (including any reasonable professional fees and expenses and taxes) incurred by the Company in considering or effecting all or any part of the Pre-Acquisition Reorganization and shall be responsible for any fees, expenses and costs (including reasonable professional fees and expenses and taxes) of the Company in reversing or unwinding any Pre-Acquisition Reorganization that was effected prior to the Expiry TimePenns Assets.
Appears in 2 contracts
Samples: Purchase and Sale Agreement (CNX Resources Corp), Purchase and Sale Agreement (CNX Midstream Partners LP)
Reorganization. (a) The Company agrees that, upon the request by Parent and Merger Sub, the Company shall use its reasonable best efforts to: (i) effect such reorganization one or more reorganizations of the corporate structure, capital structure, business operations and assets of the Company or any of its business, operations, subsidiaries and assets wholly-owned Subsidiaries or such other transactions as Parent and Merger Sub may reasonably request, (each, a “Pre-Acquisition Closing Reorganization”); and (ii) as co-operate with Parent, Merger Sub and their advisors in order to determine the Purchaser may reasonably request prior to nature of the Expiry Time; provided, however, that the Company need not effect a Pre-Acquisition Reorganization which would impede or materially delay the take-up of Exeter Shares Closing Reorganizations that might be undertaken and the consummation of manner in which they might most effectively be undertaken and whether such reorganizations would require prior approval by a Governmental Entity; provided that: (A) the Contemplated Transactions or that would be Pre-Closing Reorganizations are not prejudicial to the Company, any of its subsidiaries Subsidiaries or the Exeter Securityholders or that would involve a material amount any of the time Company stockholders in any material respect and attention will not, if the Merger is not consummated, adversely affect the Company, any of its Subsidiaries or any of the Company’s officers or employees.
Company stockholders in any material manner; (bB) Without limiting the foregoing and other than as set forth in clause (a) above, Pre-Closing Reorganizations do not impair the ability of the Company shall use its best efforts or Parent or Merger Sub to obtain all necessary consents, approvals complete the Merger or waivers from any persons to effect each materially delay completion of the Merger; (C) the Pre-Acquisition Reorganization, Closing Reorganizations are effected as close as reasonably practicable to the Effective Time and do not require the approval of any of the Company shall cooperate stockholders; and (D) the Pre-Closing Reorganizations do not unreasonably and materially interfere with the Purchaser ongoing operations of the Company and its Subsidiaries and do not result in structuringany breach by the Company or any of its Subsidiaries of any Contract or any breach by the Company or any of its Subsidiaries of their respective Organizational Documents or Law. Parent waives any breach of a representation, planning warranty or covenant by the Company, where such breach is solely a result of an action taken or not taken by the Company or a Subsidiary pursuant to a request by Parent in accordance with this Section 5.3. Parent and implementing any such Pre-Acquisition Reorganization. The Purchaser Merger Sub shall provide written notice to the Company of any proposed Pre-Acquisition Closing Reorganization at least ten (10) Business Days prior to the Expiry Effective Time. In addition:.
(ib) any Pre-Acquisition Reorganization Parent shall not unreasonably interfere with the Company’s material operations prior to the Effective Time reimburse and shall not become effective until the Purchaser shall have waived or confirmed in writing the satisfaction of all conditions in its favour in the Offer and in this Agreement and shall have confirmed in writing that it is prepared to promptly, and without condition, proceed to effect the acquisition of the Exeter Shares;
(ii) any Pre-Acquisition Reorganization shall not require indemnify the Company to contravene any applicable Laws(and each Subsidiary) for all out-of-pocket costs, its organizational documents or any Material Contract; and
(iii) the Company shall not be obligated to take any action that could result in any Taxes being imposed on, or any adverse Tax or other consequences to, any Exeter Securityholder incrementally greater than the Taxes or other consequences to such party expenses and losses incurred in connection with the take-up of Exeter Shares and the consummation of the Offer in the absence of any proposed Pre-Acquisition Reorganization.
(c) The Purchaser acknowledges and agrees that Closing Reorganization if the planning for and implementation of any Pre-Acquisition Reorganization shall not be considered a breach of any covenant under this Agreement and shall not be considered in determining whether a representation or warranty of the Company hereunder has been breached. The Purchaser and the Company shall work cooperatively and use commercially reasonable efforts to prepare prior to the Expiry Time all documentation necessary and do such other acts and things as are necessary to give effect to such Pre-Acquisition Reorganization. For greater certainty, the Company shall not be liable for the failure of the Purchaser to benefit from any anticipated Tax efficiency as a result of a Pre-Acquisition Reorganization.
(d) The Purchaser agrees that it will be responsible for all costs and expenses associated with any Pre-Acquisition Reorganization to be carried out at its request and shall indemnify and save harmless the Company and its subsidiaries and their respective Representatives from and against any and all liabilities, losses, damages, claims, costs, expenses, interest awards, judgments and penalties suffered or incurred by any of them in connection with or as a result of any such Pre-Acquisition Reorganization (including in respect of any reversal, modification or termination of a Pre-Acquisition Reorganization) and that any Pre-Acquisition Reorganization will not be considered in determining whether a representation or warranty of the Company under this Agreement has been breached (including where any such Pre-Acquisition Reorganization requires the consent of any third party under a Contract). If the Offer Merger is not completed, the Purchaser shall reimburse the Company forthwith for all fees and expenses (including any reasonable professional fees and expenses and taxes) incurred by the Company in considering or effecting all or any part of the Pre-Acquisition Reorganization and shall be responsible for any fees, expenses and costs (including reasonable professional fees and expenses and taxes) of the Company in reversing or unwinding any Pre-Acquisition Reorganization that was effected prior to the Expiry Timecompleted as contemplated herein.
Appears in 2 contracts
Samples: Merger Agreement (Enerflex Ltd.), Merger Agreement (Exterran Corp)
Reorganization. (a) The Upon request by Symmetry, the Company shall shall, at the expense of Symmetry, use its commercially reasonable efforts to: (i) effect such reorganization corporate, tax and legal reorganizations of its business, operations, subsidiaries operations and assets or such other transactions as Symmetry may request (each, each a “Pre-Acquisition Reorganization”) as and (ii) co-operate with Symmetry and its advisors in order to determine the Purchaser may reasonably request prior to nature of the Expiry Time; Pre-Acquisition Reorganizations that might be undertaken and the manner in which they might most effectively be undertaken, provided, however, that the Company need not effect a any Pre-Acquisition Reorganization which would impede or materially delay which, in the take-up opinion of Exeter Shares and the consummation of the Contemplated Transactions or that would be prejudicial to the Company, its subsidiaries or acting reasonably, (A) would require the Exeter Securityholders or that would involve a material amount Company to obtain the approval of the time and attention Company Shareholders in respect of the Company’s officers or employees.
(b) Without limiting the foregoing and other than as set forth in clause (a) above, the Company shall use its best efforts to obtain all necessary consents, approvals or waivers from any persons to effect each Pre-Acquisition Reorganization, and the Company shall cooperate with the Purchaser in structuring, planning and implementing any such Pre-Acquisition ReorganizationReorganization other than at the Company Meeting, or (B) would prejudice the Shareholders in any material respect. The Purchaser Symmetry shall provide written notice to the Company of any proposed Pre-Acquisition Reorganization at least ten (10) Business Days prior to the Expiry TimeEffective Date. In addition:
(i) any Pre-Acquisition Reorganization shall not unreasonably interfere with the Company’s material operations prior to the Effective Time and shall not become effective until the Purchaser shall have waived or confirmed in writing the satisfaction Upon receipt of all conditions in its favour in the Offer and in this Agreement and shall have confirmed in writing that it is prepared to promptlysuch notice, and without condition, proceed to effect the acquisition of the Exeter Shares;
(ii) any Pre-Acquisition Reorganization shall not require the Company to contravene any applicable Laws, its organizational documents or any Material Contract; and
(iii) the Company shall not be obligated to take any action that could result in any Taxes being imposed on, or any adverse Tax or other consequences to, any Exeter Securityholder incrementally greater than the Taxes or other consequences to such party in connection with the take-up of Exeter Shares and the consummation of the Offer in the absence of any Pre-Acquisition Reorganization.
(c) The Purchaser acknowledges and agrees that the planning for and implementation of any Pre-Acquisition Reorganization shall not be considered a breach of any covenant under this Agreement and shall not be considered in determining whether a representation or warranty of the Company hereunder has been breached. The Purchaser Symmetry and the Company shall work cooperatively co-operate and use commercially reasonable efforts to prepare prior to the Expiry Time Effective Date all documentation necessary and do all such other acts and things as are necessary to give effect to such Pre-Acquisition Reorganization, prior to the Effective Date. For greater certaintySymmetry agrees to waive any breach of a representation, warranty or covenant of this Agreement by the Company where such breach is a result of an action taken by the Company with knowledge of Symmetry in good faith pursuant to a request by Symmetry in accordance with this Section 4.8. No Pre-Acquisition Reorganization will be made effective unless (i) it is certain after consulting with the Company, that the Arrangement will become effective; (ii) it can be reversed or unwound or such effect can otherwise be mitigated without materially adversely affecting the Company or its Subsidiaries in the event the Arrangement does not become effective and this Agreement is terminated; or (iii) the Company otherwise agrees, acting reasonably.
(b) Each of Symmetry and Acquisitionco acknowledges and agrees that the Pre-Acquisition Reorganizations shall:
(i) not materially delay or prevent consummation of the Arrangement (including by giving rise to litigation by third parties);
(ii) not unreasonably interfere with the ongoing operations of the Company and its subsidiaries; and
(iii) not require the directors, officers, employees, agents or trustees of the Company or its Subsidiaries to take any action in any capacity other than as a director, officer, employee, agents or trustees.
(c) If, at the request of Acquisitionco, the Company shall not be liable for the failure of the Purchaser to benefit from any anticipated Tax efficiency as a result of a Pre-Acquisition Reorganization.
(d) The Purchaser agrees that it will be responsible for all costs and expenses associated with effects any Pre-Acquisition Reorganization to be carried out at its request before the Effective Date and shall indemnify and save harmless the Company and its subsidiaries and their respective Representatives from and against any and all liabilities, losses, damages, claims, costs, expenses, interest awards, judgments and penalties suffered or incurred by any of them in connection with or as a result of any such Pre-Acquisition Reorganization (including in respect of any reversal, modification or termination of a Pre-Acquisition Reorganization) and that any Pre-Acquisition Reorganization will not be considered in determining whether a representation or warranty of the Company under this Agreement has been breached (including where any such Pre-Acquisition Reorganization requires the consent of any third party under a Contract). If the Offer Arrangement is not completed, the Purchaser Symmetry shall forthwith reimburse the Company forthwith for all reasonable fees and expenses (including any reasonable professional fees and expenses and taxesexpenses) incurred by the Company and the Subsidiaries in considering or effecting all or any part consideration of the a Pre-Acquisition Reorganization and shall be responsible for any reasonable direct costs, fees, expenses and costs (including reasonable professional fees and expenses and taxes) expenses, damages or other amounts that are or may become payable by of the Company and its Subsidiaries in connection with or as a result of reversing or unwinding any Pre-Acquisition Reorganization that was effected or undertaken prior to termination of this Agreement at Symmetry’s request.
(d) Notwithstanding the foregoing (other than Section 4.8(c)), upon request by Symmetry in respect of the following specific Pre-Acquisition Reorganizations, the Company shall prior to the Expiry TimeEffective Date: (i) liquidate and dissolve 000000 Xxxxxx Inc., and/or (ii) cause the termination of Annaco General Partnership or transfer an interest in such partnership to a person that is not an Amalgamating Subsidiary (as defined in the Plan of Arrangement), in the manner determined by Symmetry. Also, notwithstanding the foregoing (other than Section 4.8(c)), at the request of Symmetry, the Company agrees to make an election to cease to be a “public corporation” (as defined in subsection 89(1) of the Tax Act), in the prescribed form and manner and within the prescribed time for making such election, which election is to be effective after the acquisition of the Company Shares and the Holdco Shares by Acqusitionco but prior to the amalgamation of the Company and NB Sub (as defined in the Plan of Arrangement) and the Company agrees to amend the Plan of Arrangement to provide for such election if determined necessary by Symmetry; provided that the Company should not be required to make any such election if the making of such election would have any negative consequences to the Company or the Shareholders.
Appears in 2 contracts
Samples: Arrangement Agreement (Symmetry Holdings Inc), Arrangement Agreement (Symmetry Holdings Inc)
Reorganization. (a) The Company In contemplation of the Col-Care Transaction, CGGC shall, and shall effect such reorganization cause each of its businessrespective Subsidiaries (collectively, operations, subsidiaries and assets or such other transactions the “Reorganizing Party”) to continue under the BCBCA in accordance with the terms hereof (each, a “Pre-Acquisition Default Reorganization”) as the Purchaser may reasonably request prior to the Expiry Time; provided, however, that the Company need not effect a Pre-Acquisition Reorganization which would impede or materially delay the take-up of Exeter Shares and the consummation of the Contemplated Transactions or that would be prejudicial to the Company, its subsidiaries or the Exeter Securityholders or that would involve a material amount of the time and attention of the Company’s officers or employees).
(b) Without limiting Col-Care is continuing to evaluate other potential jurisdictions in which CGGC could reorganize the foregoing business, operations and other than as set forth in clause assets of the Reorganizing Party to further improve the tax efficiencies of the Col-Care Transaction and transactions contemplated herein (aan “Enhanced Reorganization”).
(c) above, the Company shall use its best efforts to obtain all necessary consents, approvals or waivers from any persons to effect each PreThe Reorganizing Party and Col-Acquisition Reorganization, and the Company Care shall cooperate with the Purchaser in structuring, planning and implementing any such Pre-Acquisition Default Reorganization or an Enhanced Reorganization (each a “Reorganization. The Purchaser ”) and any Reorganization shall provide written notice be reasonably satisfactory to the Company Reorganizing Party and Col-Care before any Reorganization is effected. For greater certainty, and subject to Section 6.03(e), the Reorganizing Party agrees, to the extent necessary or advisable, to seek the approval and authorization of the CGGC Shareholders at the CGGC Shareholder Meeting of any proposed PreReorganization upon the request of Col-Acquisition Reorganization at least ten Business Days prior to the Expiry Time. In addition:
(i) any Pre-Acquisition Reorganization shall not unreasonably interfere with the Company’s material operations prior to the Effective Time and shall not become effective until the Purchaser shall have waived or confirmed in writing the satisfaction of all conditions in its favour in the Offer and in this Agreement and shall have confirmed in writing that it is prepared to promptly, and without condition, proceed to effect the acquisition of the Exeter Shares;
(ii) any Pre-Acquisition Reorganization shall not require the Company to contravene any applicable Laws, its organizational documents or any Material Contract; and
(iii) the Company shall not be obligated to take any action that could result in any Taxes being imposed on, or any adverse Tax or other consequences to, any Exeter Securityholder incrementally greater than the Taxes or other consequences to such party in connection with the take-up of Exeter Shares and the consummation of the Offer in the absence of any Pre-Acquisition ReorganizationCare.
(cd) The Purchaser acknowledges and agrees that the planning for and implementation of any Pre-Acquisition Reorganization pursuant to this Section 6.03 shall not be considered a breach of any covenant under this Agreement and shall not be considered in determining whether a representation or warranty of the Company a Party hereunder has been breached. ; and
(e) Any Reorganization shall:
(i) be effected as close as reasonably practicable to the Effective Time; and
(ii) not impair the ability of the Parties to complete, or delay the completion of, the Col-Care Transaction, including any delay in the date of the CGGC Shareholder Meeting in accordance with Section 2.02(a).
(f) The Purchaser and the Company Parties shall work cooperatively and use their respective commercially reasonable efforts to prepare prior to the Expiry Effective Time all documentation necessary and do such other acts and things as are necessary to give effect to such Pre-Acquisition ReorganizationReorganization pursuant to Section 6.03(a). For greater certaintyIn addition, the Company shall not be liable for the failure in contemplation of the Purchaser to benefit from any anticipated Tax efficiency as a result of a PreCol-Acquisition Reorganization.
(d) The Purchaser agrees that it will be responsible for all costs and expenses associated with any Pre-Acquisition Reorganization to be carried out at its request Care Transaction, each Party shall, and shall indemnify and save harmless cause each of its respective Subsidiaries to, cooperate with the other Party in amending (an “Amendment”) the closing mechanics of the Col-Care Transaction to improve the Canadian or U.S. federal income tax treatment of the Col-Care Transaction to Col-Care, CGGC or the Surviving Company and its subsidiaries and their respective Representatives from and against any and the Parties shall be permitted to take all liabilities, losses, damages, claims, costs, expenses, interest awards, judgments and penalties suffered necessary or incurred by any of them in connection with or as a result of desirable steps to effect any such Pre-Acquisition Reorganization (including in respect of any reversal, modification or termination of a Pre-Acquisition Reorganization) and that any Pre-Acquisition Reorganization will not be considered in determining whether a representation or warranty of the Company under this Agreement has been breached (including where any such Pre-Acquisition Reorganization requires the consent of any third party under a Contract). If the Offer is not completed, the Purchaser shall reimburse the Company forthwith for all fees and expenses (including any reasonable professional fees and expenses and taxes) incurred by the Company in considering or effecting all or any part of the Pre-Acquisition Reorganization and shall be responsible for any fees, expenses and costs (including reasonable professional fees and expenses and taxes) of the Company in reversing or unwinding any Pre-Acquisition Reorganization that was effected prior to the Expiry TimeAmendment.
Appears in 2 contracts
Samples: Transaction Agreement (Columbia Care Inc.), Transaction Agreement
Reorganization. (a) The From and after the date hereof and until the Effective Time, none of the Company, OPCO or RECO or any of their respective Subsidiaries or other affiliates shall knowingly take any action, or knowingly fail to take any action, that would cause the Merger not to qualify as a reorganization within the meaning of Section 368(a) of the Code.
(b) If and to the extent so requested by RECO, and subject to receipt of the consents referred to in Section 5.16(b) of the Company shall effect such reorganization of its businessDisclosure Schedule, operationsand subject to the Company's reasonable judgment that all other conditions to the Closing have been, subsidiaries and assets or such other transactions (eachwill be, a “Pre-Acquisition Reorganization”) as satisfied or waived, the Purchaser may reasonably request Company agrees that prior to the Expiry TimeClosing Date, all direct or indirect Subsidiaries of the Company holding "real estate assets" within the meaning of Section 856 of the Code will be liquidated such that the Company holds all such assets, except as otherwise provided on Section 5.16(b) of the Company Disclosure Schedule; provided, however, that (i) any inability of the Company need to satisfy any condition to the Merger set forth in Section 6.02 of this Agreement arising solely as a result of the foregoing actions shall not effect be deemed a Pre-Acquisition Reorganization which would impede or materially delay the take-up failure of Exeter Shares and such condition to the consummation of the Contemplated Transactions or that would be prejudicial to the CompanyMerger, its subsidiaries or the Exeter Securityholders or that would involve a material amount of the time and attention of the Company’s officers or employees.
(bii) Without limiting notwithstanding the foregoing and other than as set forth in clause (a) aboveactions, the Company RECO shall use its best efforts continue to obtain all necessary consents, approvals or waivers from any persons to effect each Pre-Acquisition Reorganization, and the Company shall cooperate with the Purchaser in structuring, planning and implementing any such Pre-Acquisition Reorganization. The Purchaser shall provide written notice to the Company of any proposed Pre-Acquisition Reorganization at least ten Business Days prior to the Expiry Time. In addition:
(i) any Pre-Acquisition Reorganization shall not unreasonably interfere with the Company’s material operations prior to the Effective Time and shall not become effective until the Purchaser shall have waived or confirmed in writing remain liable hereunder for the satisfaction of all conditions in any of its favour in the Offer and in this Agreement and shall have confirmed in writing that it is prepared to promptlyobligations hereunder, and without condition, proceed to effect the acquisition of the Exeter Shares;
(ii) any Pre-Acquisition Reorganization shall not require the Company to contravene any applicable Laws, its organizational documents or any Material Contract; and
(iii) the Company foregoing actions shall not be obligated enable the Merger to take any action that could result in any Taxes being imposed oncontinue to qualify as, or any adverse Tax be treated as part of, one or other consequences to, any Exeter Securityholder incrementally greater than more tax-free reorganizations within the Taxes or other consequences to such party in connection meaning of Section 368(a) of the Code with the take-up of Exeter Shares and the consummation exception of the Offer in the absence sale of any Preassets by the Company to OPCO, RECO or any of their respective affiliates which would enable RECO and OPCO to maximize the economic and tax advantages associated with the paired-Acquisition Reorganization.
(c) share structure, including without limitation the transactions contemplated by this Section 5.16 hereof. The Purchaser acknowledges parties hereto agree that they will execute, and agrees that the planning for will cause their respective direct and implementation of any Pre-Acquisition Reorganization shall not be considered a breach of any covenant under indirect subsidiaries to execute such agreements and documents and such amendments to this Agreement and shall not be considered in determining whether a representation or warranty of the Company hereunder has been breached. The Purchaser and the Company shall work cooperatively and use commercially reasonable efforts to prepare prior to the Expiry Time all documentation necessary and do such other acts and things any related documents as are necessary to give effect to such Pre-Acquisition Reorganization. For greater certainty, the Company shall not be liable for the failure of the Purchaser to benefit from any anticipated Tax efficiency as a result of a Pre-Acquisition Reorganization.
(d) The Purchaser agrees that it will be responsible for all costs and expenses associated with any Pre-Acquisition Reorganization to be carried out at its request and shall indemnify and save harmless the Company and its subsidiaries and their respective Representatives from and against any and all liabilities, losses, damages, claims, costs, expenses, interest awards, judgments and penalties suffered or incurred by any of them in connection with or as a result of any such Pre-Acquisition Reorganization (including in respect of any reversal, modification or termination of a Pre-Acquisition Reorganization) and that any Pre-Acquisition Reorganization will not be considered in determining whether a representation or warranty of the Company under this Agreement has been breached (including where any such Pre-Acquisition Reorganization requires the consent of any third party under a Contract). If the Offer is not completed, the Purchaser shall reimburse the Company forthwith for all fees and expenses (including any reasonable professional fees and expenses and taxes) incurred by the Company in considering or effecting all or any part of the Pre-Acquisition Reorganization and shall be responsible for any fees, expenses and costs (including reasonable professional fees and expenses and taxes) of the Company appropriate in reversing or unwinding any Pre-Acquisition Reorganization that was effected prior order to the Expiry Timereflect such revised structure.
Appears in 2 contracts
Samples: Merger Agreement (Meditrust Corp), Merger Agreement (La Quinta Inns Inc)
Reorganization. (a) The Company shall, and shall effect such cause each of its Subsidiaries to, reasonably cooperate with Purchaser in planning, preparing and effectuating any reorganization of the Company’s or any of its Subsidiaries’ corporate structure, capital structure, business or operations, or transfer of securities, assets or business, operationsin each case, subsidiaries and assets or such other transactions (eachto be completed prior to the Closing, a “Pre-Acquisition Reorganization”) as the Purchaser may reasonably request prior or as may be necessary or appropriate to complete the Expiry Timetransactions contemplated hereby, including amalgamations, liquidations, reorganizations or stock or asset transfers (each a “Reorganization Transaction”), and to use its commercially reasonable efforts to implement any such Reorganization Transaction as Purchaser may reasonably request; provided, however, that the Company need not effect a Pre-Acquisition Reorganization which would impede or materially delay the take-up of Exeter Shares and the consummation of the Contemplated Transactions or that would be prejudicial to the Company, its subsidiaries or the Exeter Securityholders or that would involve a material amount of the time and attention of the Company’s officers or employees.
(b) Without limiting the foregoing and other than as set forth in clause (a) above, the Company shall use its best efforts to obtain all necessary consents, approvals or waivers from any persons to effect each Pre-Acquisition Reorganization, and the Company shall cooperate with the Purchaser in structuring, planning and implementing any such Pre-Acquisition Reorganization. The Purchaser shall provide written notice to the Company of any proposed Pre-Acquisition Reorganization at least ten Business Days prior to the Expiry Time. In addition:
(i) any Pre-Acquisition such Reorganization shall Transaction does not unreasonably interfere with the Company’s material ongoing operations prior to the Effective Time and shall not become effective until the Purchaser shall have waived or confirmed in writing the satisfaction of all conditions in its favour in the Offer and in this Agreement and shall have confirmed in writing that it is prepared to promptly, and without condition, proceed to effect the acquisition of the Exeter Shares;
Company and its Subsidiaries, (ii) any Pre-Acquisition such Reorganization shall not require Transaction is not, in the opinion of the Company, acting reasonably, prejudicial to the holders of Company Securities, the Company to contravene any applicable Laws, its organizational documents or any Material Contract; and
(iii) the Company shall of its Subsidiaries and does not be obligated to take any action that could result in any Taxes being imposed on, or any adverse Tax or other consequences to, any Exeter Securityholder holder of Company Securities incrementally greater than the Taxes or other consequences to such party holders in connection with the take-up completion of Exeter Shares the Arrangement in the absence of action being taken pursuant to this Section 6.12, (iii) such Reorganization Transaction shall not impede or delay, or prevent, the receipt of any regulatory approvals or Gaming Consents, the satisfaction of any other conditions set forth in Article VII or consummation of the transactions contemplated hereby, (iv) such Reorganization Transaction does not require the Company to obtain the approval of the Company Shareholders (other than is obtained by virtue of the approval of the Arrangement) and does not require the Company or any of its Subsidiaries to obtain any consent of any third party if obtaining such consent would reasonably be expected to impede or delay the consummation of the Offer in transactions contemplated hereby, (v) Purchaser shall pay all direct or indirect costs and liabilities, fees, Damages, penalties and Taxes that may be incurred by the absence Company or its Subsidiaries as a consequence of any Pre-Acquisition Reorganization.
(c) The Purchaser acknowledges and agrees that the planning for and implementation of or to unwind any Presuch Reorganization Transaction if the Arrangement is not completed, including actual out-Acquisition of-pocket costs and expenses for filing fees and expenses of external counsel and auditors which may be incurred in connection with such Reorganization Transaction, (vi) no such Reorganization Transaction or any action of the Company or its Subsidiaries requested by Purchaser in connection therewith shall not be considered to constitute a breach of any covenant under this Agreement and shall not be considered in determining whether a representation the representations, warranties, covenants or warranty agreements of the Company hereunder or in determining whether any of the conditions in Section 7.1 or Section 7.2 have been satisfied, (vii) such Reorganization Transaction shall not be contrary to applicable Laws or the organizational documents of the Company or any of its Subsidiaries (excluding wholly-owned Subsidiaries) and would not result in any breach by the Company or any of its Subsidiaries of any Contract or Permit; (viii) such Reorganization Transaction does not require the Company to take any action with regards to any Gaming Consents that it is not already taking pursuant to the provisions hereof; (ix) such Reorganization Transaction shall not become effective unless Purchaser has been breachedirrevocably waived or confirmed in writing the satisfaction of all conditions in Section 7.1 and Section 7.2 and shall have confirmed in writing that it will, upon completion of the Reorganization Transaction, promptly and without condition or delay proceed to effect the Arrangement and (ix) such Reorganization Transaction is effected as close as reasonably practicable to the Effective Time.
(b) Purchaser shall provide written notice to the Company of any proposed Reorganization Transaction at least ten (10) Business Days prior to the anticipated Effective Time. The Upon receipt of such notice, Purchaser and the Company shall shall, subject in all cases to Section 6.12(a), work cooperatively co-operatively and use commercially reasonable efforts to prepare prior to the Expiry Effective Time all documentation necessary and do all such other acts and things as are necessary reasonably necessary, including making amendments to this Agreement or the Plan of Arrangement, to give effect to such Pre-Acquisition ReorganizationReorganization Transaction. For greater certaintyNo Reorganization Transaction will be made effective unless (i) it is reasonably certain, after consulting with the Company, that the Arrangement will become effective, (ii) such Reorganization Transaction can be reversed or unwound without adversely affecting the holders of Company Securities, the Company shall or any of its Subsidiaries in the event the Arrangement does not be liable for become effective and this Agreement is terminated (after giving effect to any reimbursement required by to this Section 6.12), or (iii) the failure Company otherwise consents to such Reorganization Transaction, acting reasonably. The obligation of the Purchaser to benefit from any anticipated Tax efficiency as a result of a Pre-Acquisition Reorganization.
(d) The Purchaser agrees that it will reimburse the Company for fees and expenses and be responsible for all costs as set out in this Section 6.12 will be in addition to any other payment Purchaser may be obligated to make hereunder and expenses associated with will survive termination of this Agreement. If the Arrangement is not completed for any Pre-Acquisition Reorganization reason, and without prejudice to be carried out at its request any other remedy of the Company, Purchaser hereby indemnifies and shall indemnify and save holds harmless the Company and its subsidiaries Subsidiaries and their respective Representatives from and against any and all liabilities, losses, damagesDamages, claims, costs, expenses, interest awards, judgments and penalties Taxes suffered or incurred by any of them in connection with or as a result of any such Pre-Acquisition Reorganization (including in respect of Transaction, or to reverse or unwind any reversal, modification or termination of a Pre-Acquisition Reorganization) and that any Pre-Acquisition Reorganization will not be considered in determining whether a representation or warranty of the Company under this Agreement has been breached (including where any such Pre-Acquisition Reorganization requires the consent of any third party under a Contract). If the Offer is not completed, the Purchaser shall reimburse the Company forthwith for all fees and expenses (including any reasonable professional fees and expenses and taxes) incurred by the Company in considering or effecting all or any part of the Pre-Acquisition Reorganization and shall be responsible for any fees, expenses and costs (including reasonable professional fees and expenses and taxes) of the Company in reversing or unwinding any Pre-Acquisition Reorganization that was effected prior to the Expiry TimeTransaction.
Appears in 2 contracts
Samples: Arrangement Agreement (Score Media & Gaming Inc.), Arrangement Agreement (Penn National Gaming Inc)
Reorganization. (a) The Company Existing Member shall effect such reorganization cause the Reorganization to be completed as promptly as reasonably practicable after the Execution Date in accordance with, and pursuant to, the terms of its business, operations, subsidiaries and assets or such other transactions (each, a “Pre-Acquisition Reorganization”) as the Purchaser may reasonably request prior to the Expiry Time; provided, however, that the Company need not effect a Pre-Acquisition Reorganization which would impede or materially delay the take-up of Exeter Shares this Agreement and the consummation of the Contemplated Transactions or that would be prejudicial to the Company, its subsidiaries or the Exeter Securityholders or that would involve a material amount of the time and attention of the Company’s officers or employeesBusiness Separation Agreement.
(b) Without limiting No earlier than five (5) days prior to the foregoing and other than as set forth in clause (a) aboveClosing, the Company Existing Member and the New Member shall identify and select Process and Maintenance Inventory with a book value (determined in good faith by mutual agreement of the Existing Member and the New Member) equal to the Target Process and Maintenance Inventory Amount. The Existing Member shall, and shall cause its Affiliate to, use its best efforts to obtain all necessary consentsconsummate the Reorganization such that, approvals or waivers from any persons to effect each Pre-Acquisition Reorganizationat the Closing, (i) such Process and Maintenance Inventory so identified and selected by the Existing Member and the Company shall cooperate with the Purchaser in structuringNew Member is conveyed, planning transferred, assigned and implementing any such Pre-Acquisition Reorganization. The Purchaser shall provide written notice delivered to the Company of any proposed Pre-Acquisition Reorganization at least ten Business Days prior to the Expiry Time. In addition:
(i) any Pre-Acquisition Reorganization shall not unreasonably interfere with the Company’s material operations prior to the Effective Time and shall not become effective until the Purchaser shall have waived or confirmed in writing the satisfaction of all conditions in its favour in the Offer and in this Agreement and shall have confirmed in writing that it is prepared to promptly, and without condition, proceed to effect the acquisition of the Exeter Shares;
(ii) any Pre-Acquisition Reorganization shall not require the Company to contravene any applicable Laws, its organizational documents or any Material Contract; and
Process and Maintenance Inventory Amount Difference is zero dollars (iii) the Company shall not be obligated to take any action that could result in any Taxes being imposed on, or any adverse Tax or other consequences to, any Exeter Securityholder incrementally greater than the Taxes or other consequences to such party in connection with the take-up of Exeter Shares and the consummation of the Offer in the absence of any Pre-Acquisition Reorganization$0).
(c) The Purchaser acknowledges and agrees that the planning for and implementation of any Pre-Acquisition Reorganization shall not be considered a breach of any covenant under this Agreement and shall not be considered in determining whether a representation or warranty of the Company hereunder has been breached. The Purchaser and the Company shall work cooperatively and use commercially reasonable efforts to prepare No earlier than five (5) days prior to the Expiry Time all documentation necessary and do such other acts and things as are necessary to give effect to such Pre-Acquisition Reorganization. For greater certaintyClosing, the Company Existing Member and the New Member shall not identify and select Product Inventory comprised of each Product Inventory Type in an amount equal to the Target Product Inventory Type Amount therefor, it being understood that the measurement of such identified and selected Product Inventory (and related Product Inventory Types) shall be liable for conducted in accordance with the failure of inventory measurement procedures set forth on Schedule C attached hereto. The Existing Member shall, and shall cause its Affiliate to, use best efforts to consummate the Purchaser Reorganization such that, at the Closing, (i) such Product Inventory so identified and selected by the Existing Member and the New Member is conveyed, transferred, assigned and delivered to benefit from any anticipated Tax efficiency as a result of a Pre-Acquisition Reorganization.the New Member and (ii) the Product Inventory Type Amount Difference is zero (0) kT.
(d) The Purchaser agrees that it will be responsible for all costs For the avoidance of doubt, and expenses associated with any Pre-Acquisition Reorganization without limiting the generality of Section 6.02, the Existing Member shall provide, or cause its applicable Affiliates to be carried out at its request and shall indemnify and save harmless provide, the Company New Member and its subsidiaries Representatives with reasonable access, upon reasonable prior written notice and their respective Representatives from during the Existing Member’s normal business hours, to the books and against any records of the Existing Member or such of its Affiliates, as applicable, for purposes of determining book value of the Process and all liabilities, losses, damages, claims, costs, expenses, interest awards, judgments Maintenance Inventory and penalties suffered or incurred by any measurement of them in connection with or as a result of any such Pre-Acquisition Reorganization (including in respect of any reversal, modification or termination of a Pre-Acquisition Reorganizationthe Product Inventory pursuant to the foregoing Sections 6.04(b) and that any Pre-Acquisition Reorganization will not be considered in determining whether a representation or warranty of 6.04(c), and the Company under this Agreement has been breached (including where any such Pre-Acquisition Reorganization requires Existing Member shall provide the consent of any third party under a Contract). If the Offer is not completed, the Purchaser shall reimburse the Company forthwith for all fees and expenses (including any New Member with reasonable professional fees and expenses and taxes) incurred by the Company in considering or effecting all or any part of the Pre-Acquisition Reorganization and shall be responsible for any fees, expenses and costs (including reasonable professional fees and expenses and taxes) of the Company in reversing or unwinding any Pre-Acquisition Reorganization that was effected prior supporting documentation relating to the Expiry Timesame.
Appears in 2 contracts
Samples: Membership Interest Purchase Agreement (LyondellBasell Industries N.V.), Membership Interest Purchase Agreement
Reorganization. (a) The Company Acquiror (and its advisors) and the Corporation (and its advisors) shall effect co-operate to identify opportunities to maximize tax efficiencies which may be available in connection with the transactions contemplated hereby. If Acquiror and the Corporation identify such reorganization opportunities by not later than ten Business Days before the Initial Expiry Date and Acquiror determines to pursue any one or more of its such opportunities, they shall determine the manner in which they would most effectively be undertaken, including by way of reorganizations of the Corporation’s business, operations, subsidiaries operations and assets or such other transactions (each, each a “Pre-Acquisition Reorganization”) as and the Purchaser may reasonably request Corporation shall use all commercially reasonable efforts to implement, with effect prior to take-up of Shares by Acquiror under the Expiry Time; providedOffer, howeversuch Pre-Acquisition Reorganizations. Notwithstanding the foregoing, it is agreed and understood that the Company need not effect Corporation shall have no obligation to plan for or implement a Pre-Acquisition Reorganization which would impede or materially delay unless the take-up of Exeter Shares and the consummation of the Contemplated Transactions or that would be prejudicial to the Company, its subsidiaries or the Exeter Securityholders or that would involve a material amount of the time and attention of the Company’s officers or employees.
(b) Without limiting the foregoing and other than as set forth in clause (a) above, the Company shall use its best efforts to obtain all necessary consents, approvals or waivers from any persons to effect each Pre-Acquisition Reorganization, and the Company shall cooperate with the Purchaser in structuring, planning and implementing any such Pre-Acquisition Reorganization. The Purchaser shall provide written notice to the Company of any proposed Pre-Acquisition Reorganization at least ten Business Days prior to the Expiry Time. In additionfollowing conditions have been met:
(i) any Pre-Acquisition Reorganization shall not delay, impair or impede the completion of the Offer, any Second Stage Transaction or the ability of Acquiror to obtain any financing required by it in connection with the transactions contemplated hereby;
(ii) any Pre-Acquisition Reorganization shall not unreasonably interfere with in the Company’s ongoing operations of the Corporation or any of its Subsidiaries;
(iii) any Pre-Acquisition Reorganization shall not require any filings with, notifications to or approvals of any Governmental Entity or third party (other than obtaining such Tax rulings, and filing such Tax elections or notifications, as the Corporation shall agree are feasibly done and necessary in the circumstances);
(iv) any Pre-Acquisition Reorganization shall not require the Corporation or any of its Subsidiaries to contravene any Laws, their respective organizational documents or any material operations prior agreement to which the Effective Time and Corporation or any of its Subsidiaries is a party or to which it is subject;
(v) any Pre-Acquisition Reorganization shall not become effective until the Purchaser unless Acquiror shall have waived or confirmed in writing the satisfaction of all conditions in its favour in the Offer and in this Agreement Schedule A and shall have confirmed in writing that it is prepared to promptly, immediately thereafter and without condition, condition proceed to effect take-up of Shares under the acquisition of the Exeter SharesOffer;
(ii) any Pre-Acquisition Reorganization shall not require the Company to contravene any applicable Laws, its organizational documents or any Material Contract; and
(iiivi) the Company Corporation and its Subsidiaries shall not be obligated to take any action that could result in any Taxes being imposed on, or any adverse Tax or other consequences to, any Exeter Securityholder securityholder of the Corporation incrementally greater than the Taxes or other consequences to such party in connection with the take-up of Exeter Shares and the consummation of the Offer Offer, and any Second Stage Transaction in the absence of any Pre-Acquisition Reorganization; and
(vii) the Corporation, its Subsidiaries and their respective officers, directors, employees, agents, advisors and representatives shall have received an indemnity, in form and substance satisfactory to the Corporation, acting reasonably, from Acquiror from and against any and all liabilities, losses, damages, claims, costs, expenses, interest, awards, judgements and penalties suffered or incurred by any of them in connection with or as a result of any Pre-Acquisition Reorganization.
(cb) The Purchaser determination as to whether the conditions set out in section (a) have or will be satisfied shall be that of the Corporation, in its sole discretion. Acquiror acknowledges and agrees that the planning for and implementation of any Pre-Acquisition Reorganization shall not be considered a breach of any covenant under this Agreement and shall not be considered in determining whether a representation or warranty of the Company Corporation hereunder has been breached. The Purchaser Where the Corporation agrees to proceed with a Pre-Acquisition Reorganization, Acquiror and the Company shall Corporation shall, at the expense of Acquiror, work cooperatively and use commercially reasonable efforts to prepare prior to take-up of Shares under the Expiry Time Offer, all documentation necessary and do such other acts and things as are necessary to give effect to such Pre-Acquisition ReorganizationReorganizations. For greater certainty, the Company Corporation shall not be liable for any failure to properly implement any Pre-Reorganization Transaction or for the failure of the Purchaser Acquiror to benefit from any anticipated Tax efficiency as a result of a Pre-Acquisition Reorganizationtax efficiency.
(c) The Corporation shall not knowingly and shall ensure that none of the Corporation’s Subsidiaries shall knowingly take any action or enter into any transaction, other than a transaction contemplated by this Agreement or a transaction undertaken in the ordinary course of business consistent with past practice, that could reasonably be expected to have the effect of reducing or eliminating the amount of the tax cost “bump” pursuant to paragraphs 88(1)(c) and (d) The Purchaser agrees that it will be responsible for all costs and expenses associated with any Pre-Acquisition Reorganization of the Tax Act otherwise available to be carried out at its request and shall indemnify and save harmless the Company Acquiror and its subsidiaries successors and their respective Representatives from and against any and all liabilities, losses, damages, claims, costs, expenses, interest awards, judgments and penalties suffered or incurred by any of them in connection with or as a result of any such Pre-Acquisition Reorganization (including assigns in respect of any reversal, modification or termination of a Prethe non-Acquisition Reorganization) depreciable capital properties owned by the Corporation and that any Pre-Acquisition Reorganization will not be considered in determining whether a representation or warranty the Corporation’s Subsidiaries as of the Company under date of this Agreement has been breached (including where any or acquired by such Pre-Acquisition Reorganization requires entities subsequent to the consent date of any third party under a Contract)this Agreement in accordance with the terms of this Agreement, without first consulting with Acquiror on same. If The Corporation will use it reasonable efforts to address the Offer is not completed, the Purchaser shall reimburse the Company forthwith for all fees and expenses (including any reasonable professional fees and expenses and taxes) incurred by the Company concerns of Acquiror in considering or effecting all or any part of the Pre-Acquisition Reorganization and shall be responsible for any fees, expenses and costs (including reasonable professional fees and expenses and taxes) of the Company in reversing or unwinding any Pre-Acquisition Reorganization that was effected regards to such provisions prior to the Expiry Timetaking or allowing any of its Subsidiaries to take such action or transaction.
Appears in 2 contracts
Samples: Subscription and Support Agreement (Hexagon Canada Acquisition Inc.), Subscription and Support Agreement (Hexagon Ab)
Reorganization. Placer Dome agrees that, upon request by Barrick, Placer Dome shall (ai) The Company shall effect such reorganization reorganizations of its business, operations, subsidiaries operations and assets or such other transactions as Barrick may request, acting reasonably (each, each a “"Pre-Acquisition Reorganization”") as and (ii) co-operate with Barrick and its advisors in order to determine the Purchaser may reasonably request prior to nature of the Expiry Time; provided, however, that the Company need not effect a Pre-Acquisition Reorganization which would impede or materially delay the take-up of Exeter Shares Reorganizations that might be undertaken and the consummation of manner in which they might most effectively be undertaken; provided that the Contemplated Transactions or that would be prejudicial to the Company, its subsidiaries or the Exeter Securityholders or that would involve a material amount of the time and attention of the Company’s officers or employees.
(b) Without limiting the foregoing and other than as set forth in clause (a) above, the Company shall use its best efforts to obtain all necessary consents, approvals or waivers from any persons to effect each Pre-Acquisition Reorganization, Reorganizations are not prejudicial to Placer Dome in any material respect and (A) do not result in any breach by Placer Dome of (i) any existing contract or commitment of Placer Dome; or (ii) any Law; or (B) would not reasonably be expected to impede or delay Xxxxxxx'x ability to take up and pay for the Company shall cooperate with Shares tendered to the Purchaser in structuring, planning and implementing any such Pre-Acquisition ReorganizationOffer. The Purchaser Barrick shall provide written notice to the Company Placer Dome of any proposed Pre-Acquisition Reorganization at least ten Business Days five business days prior to the Expiry Time. In addition:
(i) any Pre-Acquisition Reorganization shall not unreasonably interfere with the Company’s material operations prior to the Effective Time Upon receipt of such notice, Barrick and shall not become effective until the Purchaser shall have waived or confirmed in writing the satisfaction of all conditions in its favour in the Offer and in this Agreement and shall have confirmed in writing that it is prepared to promptly, and without condition, proceed to effect the acquisition of the Exeter Shares;
(ii) any Pre-Acquisition Reorganization shall not require the Company to contravene any applicable Laws, its organizational documents or any Material Contract; and
(iii) the Company shall not be obligated to take any action that could result in any Taxes being imposed on, or any adverse Tax or other consequences to, any Exeter Securityholder incrementally greater than the Taxes or other consequences to such party in connection with the take-up of Exeter Shares and the consummation of the Offer in the absence of any Pre-Acquisition Reorganization.
(c) The Purchaser acknowledges and agrees that the planning for and implementation of any Pre-Acquisition Reorganization shall not be considered a breach of any covenant under this Agreement and shall not be considered in determining whether a representation or warranty of the Company hereunder has been breached. The Purchaser and the Company Placer Dome shall work cooperatively co-operatively and use commercially reasonable efforts to prepare prior to the Expiry Time all documentation necessary and do all such other acts and things as are necessary to give effect to such Pre-Acquisition Reorganization. For greater certaintyBarrick agrees to waive any breach of a representation, the Company shall not be liable for the failure of the Purchaser to benefit from any anticipated Tax efficiency as warranty or covenant by Placer Dome where such breach is a result of an action taken by Placer Dome in good faith pursuant to a Pre-Acquisition Reorganization.
(d) request by Barrick in accordance with this Section 6.8. The Purchaser agrees that it will be responsible for all costs and expenses associated with any Pre-Acquisition Reorganization to be carried out at its request and shall indemnify and save harmless the Company and its subsidiaries and their respective Representatives from and against any and all liabilities, losses, damages, claims, costs, expenses, interest awards, judgments and penalties suffered or incurred by any of them in connection with or as a result completion of any such Pre-Acquisition Reorganization (shall be subject to the satisfaction or waiver by Barrick of the conditions to the Offer set forth in Schedule A and shall be effected immediately prior to any take-up by Barrick of Shares tendered to the Offer. If Barrick does not take up and pay for the Shares tendered to the Offer, Barrick shall indemnify Placer Dome for any and all losses, costs and expenses, including reasonable legal fees and disbursements, incurred in respect of connection with any reversal, modification or termination of a proposed Pre-Acquisition Reorganization) and that any Pre-Acquisition Reorganization will not be considered in determining whether a representation or warranty of the Company under this Agreement has been breached (including where any such Pre-Acquisition Reorganization requires the consent of any third party under a Contract). If the Offer is not completed, the Purchaser shall reimburse the Company forthwith for all fees and expenses (including any reasonable professional fees and expenses and taxes) incurred by the Company in considering or effecting all or any part of the Pre-Acquisition Reorganization and shall be responsible for any fees, expenses and costs (including reasonable professional fees and expenses and taxes) of the Company in reversing or unwinding any Pre-Acquisition Reorganization that was effected prior to the Expiry Time.
Appears in 2 contracts
Samples: Support Agreement (Placer Dome Inc), Support Agreement (Barrick Gold Corp)
Reorganization. (a) The Company Rio Alto shall effect such reorganization of its business, operations, subsidiaries and assets or such other transactions (each, a “Pre-Acquisition Reorganization”) as the Purchaser Tahoe may reasonably request prior to the Expiry TimeEffective Date, and the Plan of Arrangement, if required, shall be modified accordingly; provided, however, that the Company Rio Alto need not effect a Pre-Acquisition Reorganization which would impede or materially delay the take-up of Exeter Shares and the consummation of the Contemplated Transactions or that would be prejudicial to the Company, its subsidiaries or the Exeter Securityholders or that would involve a material amount of the time and attention of the Company’s officers or employeesArrangement.
(b) Without limiting the foregoing and other than as set forth in clause (a) above, the Company Rio Alto shall use its best commercially reasonable efforts to obtain all necessary consents, approvals or waivers from any persons to effect each Pre-Acquisition Reorganization, and the Company Rio Alto shall cooperate with the Purchaser Tahoe in structuring, planning and implementing any such Pre-Acquisition Reorganization. The Purchaser Tahoe shall provide written notice to the Company Rio Alto of any proposed Pre-Acquisition Reorganization at least ten Business Days prior to the Expiry Timedate of the Rio Alto Meeting. In addition:
(i) any Pre-Acquisition Reorganization shall not unreasonably interfere with the Companyin Rio Alto’s material operations prior to the Effective Time and shall not become effective until the Purchaser shall have waived or confirmed in writing the satisfaction of all conditions in its favour in the Offer and in this Agreement and shall have confirmed in writing that it is prepared to promptly, and without condition, proceed to effect the acquisition of the Exeter SharesTime;
(ii) any Pre-Acquisition Reorganization shall not require the Company Rio Alto to contravene any applicable Laws, its organizational documents or any Rio Alto Material Contract; and
(iii) the Company Rio Alto shall not be obligated to take any action that could result in any Taxes being imposed on, or any adverse Tax or other consequences to, any Exeter Securityholder Rio Alto Shareholder incrementally greater than the Taxes or other consequences to such party in connection with the take-up of Exeter Shares and the consummation of the Offer Arrangement in the absence of any Pre-Acquisition Reorganization.
(c) The Purchaser Tahoe acknowledges and agrees that the planning for and implementation of any Pre-Acquisition Reorganization shall not be considered a breach of any covenant under this Agreement and shall not be considered in determining whether a representation or warranty of the Company Rio Alto hereunder has been breached. The Purchaser Tahoe and the Company Rio Alto shall work cooperatively and use commercially reasonable efforts to prepare prior to the Expiry Effective Time all documentation necessary and do such other acts and things as are necessary to give effect to such Pre-Acquisition Reorganization. For greater certainty, the Company Rio Alto shall not be liable for the failure of the Purchaser Tahoe to benefit from any anticipated Tax efficiency as a result of a Pre-Acquisition Reorganization.
(d) The Purchaser agrees that it will be responsible for all costs and expenses associated with any Pre-Acquisition Reorganization to be carried out at its request and shall indemnify and save harmless the Company and its subsidiaries and their respective Representatives from and against any and all liabilities, losses, damages, claims, costs, expenses, interest awards, judgments and penalties suffered or incurred by any of them in connection with or as a result of any such Pre-Acquisition Reorganization (including in respect of any reversal, modification or termination of a Pre-Acquisition Reorganization) and that any Pre-Acquisition Reorganization will not be considered in determining whether a representation or warranty of the Company under this Agreement has been breached (including where any such Pre-Acquisition Reorganization requires the consent of any third party under a Contract). If the Offer Arrangement is not completed, the Purchaser shall Tahoe will forthwith reimburse the Company forthwith Rio Alto for all reasonable fees and expenses (including any reasonable professional fees and expenses and taxes) actually incurred by the Company Rio Alto in considering or and effecting all or any part of the a Pre-Acquisition Reorganization and shall be responsible for any fees, expenses and the reasonable costs (including reasonable professional fees and expenses and taxes) of the Company actually incurred by Rio Alto in reversing or unwinding any Pre-Acquisition Reorganization that was effected prior at Tahoe’s request. The obligation of Tahoe to the Expiry Timereimburse Rio Alto as set out in this section will be in addition to any other obligation and shall survive termination of this Agreement indefinitely.
Appears in 2 contracts
Samples: Arrangement Agreement (Rio Alto Mining LTD), Arrangement Agreement (Tahoe Resources Inc.)
Reorganization. Pursuant to the Reorganization Transfer Documents and upon the terms and subject to the terms and conditions set forth in this Agreement (it being understood that in the event of any inconsistencies or conflicts between the terms of this Agreement and the terms of any Reorganization Transfer Document, the terms of this Agreement shall prevail, except to the extent the Parties have mutually agreed otherwise in writing), between the date hereof and the Closing, Abbott shall, and shall cause its Affiliates, as applicable, to, take such steps as are required to effect the following (the “Reorganization”) in compliance in all respects with the plan of reorganization set forth in Exhibit 6.1 hereto, as such plan may be modified by the Reorganization Committee in accordance with Section 6.2 (the “Reorganization Plan”):
(a) The Company Abbott shall, and shall effect cause its Affiliates, as applicable, to, take such reorganization of its businesssteps as are required to (i) sell, operationsconvey, subsidiaries assign, transfer and assets or such other transactions (each, a “Pre-Acquisition Reorganization”) as the Purchaser may reasonably request prior deliver to the Expiry Time; providedAcquired Companies or the Acquired Company Subsidiaries, howeveras applicable, that the Company need not effect a Pre-Acquisition Reorganization which would impede or materially delay the take-up all of Exeter Shares Xxxxxx’x and the consummation of the Contemplated Transactions or that would be prejudicial Continuing Affiliates’ right, title and interest in and to the CompanyTransferred Business Assets (other than the French Business IP Assets), its subsidiaries free and clear of all Encumbrances (other than Permitted Encumbrances), (ii) cause the Acquired Companies or the Exeter Securityholders Acquired Company Subsidiaries, as applicable, to assume the Assumed Business Liabilities and (iii) cause Abbott or that would involve a material amount of the time Continuing Affiliates, as applicable, on the one hand, and attention of the Company’s officers or employees.Acquired Companies and the Acquired Company Subsidiaries, as applicable, on the other hand, to enter into the Manufacturing and Supply Agreements; and
(b) Without limiting the foregoing and other than as set forth in clause (a) above, the Company shall use its best efforts to obtain all necessary consents, approvals or waivers from any persons to effect each Pre-Acquisition ReorganizationAbbott shall, and the Company shall cooperate with the Purchaser in structuringcause its Affiliates, planning and implementing any as applicable, to, take such Pre-Acquisition Reorganization. The Purchaser shall provide written notice steps as are required to the Company of any proposed Pre-Acquisition Reorganization at least ten Business Days prior to the Expiry Time. In addition:
(i) any Pre-Acquisition Reorganization shall not unreasonably interfere with sell, convey, assign, transfer and deliver to Abbott or the Company’s material operations prior Continuing Affiliates, as applicable, all of the Acquired Companies’ and the Acquired Company Subsidiaries’ right, title and interest in and to the Effective Time Excluded Assets and shall not become effective until the Purchaser shall have waived or confirmed in writing the satisfaction of all conditions in its favour in the Offer and in this Agreement and shall have confirmed in writing that it is prepared to promptly, and without condition, proceed to effect the acquisition of the Exeter Shares;
(ii) any Pre-Acquisition Reorganization shall not require cause Abbott or the Company Continuing Affiliates, as applicable, to contravene any applicable Laws, its organizational documents or any Material Contract; and
(iii) assume the Company shall not be obligated to take any action that could result in any Taxes being imposed on, or any adverse Tax or other consequences to, any Exeter Securityholder incrementally greater than the Taxes or other consequences to such party in connection with the take-up of Exeter Shares and the consummation of the Offer in the absence of any Pre-Acquisition ReorganizationExcluded Liabilities.
(c) The Purchaser acknowledges and agrees that the planning for and implementation of any Pre-Acquisition Reorganization shall not be considered a breach of any covenant under this Agreement and shall not be considered in determining whether a representation or warranty of the Company hereunder has been breached. The Purchaser and the Company shall work cooperatively and use commercially reasonable efforts to prepare prior to the Expiry Time all documentation necessary and do such other acts and things as are necessary to give effect to such Pre-Acquisition Reorganization. For greater certainty, the Company shall not be liable for the failure of the Purchaser to benefit from any anticipated Tax efficiency as a result of a Pre-Acquisition Reorganization.
(d) The Purchaser agrees that it will be responsible for all costs and expenses associated with any Pre-Acquisition Reorganization to be carried out at its request and shall indemnify and save harmless the Company and its subsidiaries and their respective Representatives from and against any and all liabilities, losses, damages, claims, costs, expenses, interest awards, judgments and penalties suffered or incurred by any of them in connection with or as a result of any such Pre-Acquisition Reorganization (including in respect of any reversal, modification or termination of a Pre-Acquisition Reorganization) and that any Pre-Acquisition Reorganization will not be considered in determining whether a representation or warranty of the Company under this Agreement has been breached (including where any such Pre-Acquisition Reorganization requires the consent of any third party under a Contract). If the Offer is not completed, the Purchaser shall reimburse the Company forthwith for all fees and expenses (including any reasonable professional fees and expenses and taxes) incurred by the Company in considering or effecting all or any part of the Pre-Acquisition Reorganization and shall be responsible for any fees, expenses and costs (including reasonable professional fees and expenses and taxes) of the Company in reversing or unwinding any Pre-Acquisition Reorganization that was effected prior to the Expiry Time.
Appears in 1 contract
Samples: Business Transfer Agreement and Plan of Merger (Abbott Laboratories)
Reorganization. Upon the written request (i) of the Company, as determined by the Board in its sole discretion, or (ii) of the Apollo Group (such requesting party being referred to as the “Initiating Party”), each Holder shall enter into a capital reorganization transaction (a “Reorganization”) in which each such Holder will become a member, partner or stockholder of a newly formed holding company (“New HoldCo”), which may be a limited liability company, corporation or limited partnership or similar entity and shall cease to be holders of their equity interests in the Company. The Reorganization may be structured, as determined by the Initiating Party in its sole discretion, as a contribution, merger, consolidation, recapitalization or substantially similar transaction in which each Holder exchanges the Common Shares and, if requested by the Company, Options or other derivatives held by such Holder for substantially similar equity securities of New HoldCo (collectively, the “New Equity Securities”). The New Equity Securities shall provide each Holder with economic, voting and other rights, privileges and restrictions that, as determined by the Board in its sole discretion, are no less favorable in the aggregate in all material respects than the economic, voting and other rights, privileges and restrictions that such Holder had prior to such Reorganization with respect to the Common Shares or Options held by such Holder. Upon the occurrence of a Reorganization, either (a) The Company New Holdco shall effect such reorganization of its business, operations, subsidiaries and assets or such other transactions (each, a “Pre-Acquisition Reorganization”) as the Purchaser may reasonably request prior to the Expiry Time; provided, however, that the Company need not effect a Pre-Acquisition Reorganization which would impede or materially delay the take-up of Exeter Shares and the consummation of the Contemplated Transactions or that would be prejudicial to the Company, its subsidiaries or the Exeter Securityholders or that would involve a material amount of the time and attention of the Company’s officers or employees.
(b) Without limiting the foregoing and other than as set forth in clause (a) above, the Company shall use its best efforts to obtain assume all necessary consents, approvals or waivers from any persons to effect each Pre-Acquisition Reorganization, and the Company shall cooperate with the Purchaser in structuring, planning and implementing any such Pre-Acquisition Reorganization. The Purchaser shall provide written notice to the Company of any proposed Pre-Acquisition Reorganization at least ten Business Days prior to the Expiry Time. In addition:
(i) any Pre-Acquisition Reorganization shall not unreasonably interfere with the Company’s material operations prior to the Effective Time and shall not become effective until the Purchaser shall have waived or confirmed in writing the satisfaction of all conditions in its favour in the Offer and in this Agreement and shall have confirmed in writing that it is prepared to promptly, and without condition, proceed to effect the acquisition of the Exeter Shares;
(ii) any Pre-Acquisition Reorganization shall not require the Company to contravene any applicable Laws, its organizational documents or any Material Contract; and
(iii) the Company shall not be obligated to take any action that could result in any Taxes being imposed on, or any adverse Tax or other consequences to, any Exeter Securityholder incrementally greater than the Taxes or other consequences to such party in connection with the take-up of Exeter Shares and the consummation of the Offer in the absence of any Pre-Acquisition Reorganization.
(c) The Purchaser acknowledges and agrees that the planning for and implementation of any Pre-Acquisition Reorganization shall not be considered a breach of any covenant under this Agreement and shall not be considered in determining whether a representation or warranty of the Company hereunder has been breached. The Purchaser and the Company shall work cooperatively and use commercially reasonable efforts to prepare prior to the Expiry Time all documentation necessary and do such other acts and things as are necessary to give effect to such Pre-Acquisition Reorganization. For greater certainty, the Company shall not be liable for the failure of the Purchaser to benefit from any anticipated Tax efficiency as a result of a Pre-Acquisition Reorganization.
(d) The Purchaser agrees that it will be responsible for all costs and expenses associated with any Pre-Acquisition Reorganization to be carried out at its request and shall indemnify and save harmless the Company and its subsidiaries and their respective Representatives from and against any and all liabilities, losses, damages, claims, costs, expenses, interest awards, judgments and penalties suffered or incurred by any of them in connection with or as a result of any such Pre-Acquisition Reorganization (including in respect of any reversal, modification or termination of a Pre-Acquisition Reorganization) and that any Pre-Acquisition Reorganization will not be considered in determining whether a representation or warranty obligations of the Company under this Agreement has been breached and all references herein to the Company and its Common Shares, Options or Securities (including where or terms of similar import) shall be deemed changed mutatis mutandis to reflect the issuance of the New Equity Securities by New HoldCo and their attendant rights, privileges and restrictions and the assumption of this Agreement by New HoldCo, or (b) upon the request of the Initiating Party, each Holder and New HoldCo shall enter into a new agreement based on terms that are substantially similar to this Agreement and otherwise that do not affect a Holder in a manner materially adverse and substantially different relative to the other Holders. Each Holder and the Company agree to execute any such Pre-Acquisition agreements or other documents in connection with the Reorganization requires that the consent Initiating Party, deems necessary and proper to consummate the Reorganization and to timely surrender its certificates representing Common Shares or Options prior to the consummation of any third party under a Contract)the Reorganization. If a Reorganization is structured as a merger or consolidation, each Holder shall agree to vote in favor of such merger and waive any dissenters’ rights, appraisal rights or similar rights in connection with the Offer is not completedproposed transaction. If any Holder fails or refuses to vote or transfer his, her or its Common Shares as required by, or votes his, her or its Common Shares in contravention of, this Section 2(b), then such Holder hereby grants to the Purchaser shall reimburse the Company forthwith for all fees and expenses (including any reasonable professional fees and expenses and taxes) incurred by the Company in considering or effecting all or any part of the Pre-Acquisition Reorganization and shall be responsible for any fees, expenses and costs (including reasonable professional fees and expenses and taxes) Secretary of the Company an irrevocable proxy, coupled with an interest, to vote such Common Shares in reversing accordance with the provisions of this Section 2(b), and hereby appoints the Secretary of the Company his, her or unwinding any Preits attorney-Acquisition Reorganization that was effected prior in-fact, to transfer such Common Shares and enter into the Expiry Timerequisite agreements and documentation in accordance with the provisions of this Section 2(b).
Appears in 1 contract
Reorganization. Upon request by Offeror, Miramar shall:
(a) The Company shall effect such reorganization reorganizations of its business, operations, subsidiaries operations and assets or such other transactions as Offeror may request, acting reasonably (each, each a “Pre-Acquisition Reorganization”) as the Purchaser may reasonably request prior to the Expiry Time); provided, however, that the Company need not effect a Pre-Acquisition Reorganization which would impede or materially delay the take-up of Exeter Shares and the consummation of the Contemplated Transactions or that would be prejudicial to the Company, its subsidiaries or the Exeter Securityholders or that would involve a material amount of the time and attention of the Company’s officers or employees.and
(b) Without limiting co-operate with Offeror and its advisors in order to determine the foregoing and other than as set forth in clause (a) above, nature of the Company shall use its best efforts to obtain all necessary consents, approvals or waivers from any persons to effect each Pre-Acquisition Reorganization, Reorganizations that might be undertaken and the Company shall cooperate with manner in which they might most effectively be undertaken; provided that the Purchaser in structuring, planning and implementing any such Pre-Acquisition ReorganizationReorganizations:
(i) do not result in any breach by Miramar of any existing contract or commitment of Miramar or of any Law; or
(ii) would not reasonably be expected to impede or delay Offeror’s ability to take up and pay for the Common Shares tendered to the Offer. The Purchaser Offeror shall provide written notice to the Company Miramar of any proposed Pre-Acquisition Reorganization at least ten Business Days business days prior to the Expiry Time. In addition:
(i) any PreUpon receipt of such notice, Offeror and Miramar shall co-Acquisition Reorganization shall not unreasonably interfere with the Company’s material operations prior to the Effective Time and shall not become effective until the Purchaser shall have waived or confirmed in writing the satisfaction of all conditions in its favour in the Offer and in this Agreement and shall have confirmed in writing that it is prepared to promptly, and without condition, proceed to effect the acquisition of the Exeter Shares;
(ii) any Pre-Acquisition Reorganization shall not require the Company to contravene any applicable Laws, its organizational documents or any Material Contract; and
(iii) the Company shall not be obligated to take any action that could result in any Taxes being imposed on, or any adverse Tax or other consequences to, any Exeter Securityholder incrementally greater than the Taxes or other consequences to such party in connection with the take-up of Exeter Shares and the consummation of the Offer in the absence of any Pre-Acquisition Reorganization.
(c) The Purchaser acknowledges and agrees that the planning for and implementation of any Pre-Acquisition Reorganization shall not be considered a breach of any covenant under this Agreement and shall not be considered in determining whether a representation or warranty of the Company hereunder has been breached. The Purchaser and the Company shall work cooperatively operate and use commercially reasonable efforts to prepare prior to the Expiry Time all documentation necessary and do all such other acts and things as are necessary to give effect to such Pre-Acquisition Reorganization. For greater certaintyOfferor agrees to waive any breach of a representation, the Company shall not be liable for the failure of the Purchaser to benefit from any anticipated Tax efficiency as warranty or covenant by Miramar where such breach is a result of an action taken by Miramar in good faith pursuant to a Pre-Acquisition Reorganization.
(d) request by Offeror in accordance with this Section 6.8. The Purchaser agrees that it will be responsible for all costs and expenses associated with any Pre-Acquisition Reorganization to be carried out at its request and shall indemnify and save harmless the Company and its subsidiaries and their respective Representatives from and against any and all liabilities, losses, damages, claims, costs, expenses, interest awards, judgments and penalties suffered or incurred by any of them in connection with or as a result completion of any such Pre-Acquisition Reorganization shall be subject to the satisfaction or (including where permitted by this Agreement) waiver of the conditions to the Offer set forth in respect Schedule A and shall be effected prior to any take-up by Offeror of Common Shares tendered to the Offer. If Offeror does not take up and pay for the Common Shares deposited under the Offer other than as a result of any reversaloccurrence, modification event or termination of a Pre-Acquisition Reorganizationaction described in Sections 7.1(g), 7.1(j) and that any Pre-Acquisition Reorganization or 7.1(k), Offeror will not be considered in determining whether a representation or warranty of the Company under this Agreement has been breached (including where any such Pre-Acquisition Reorganization requires the consent of any third party under a Contract). If the Offer is not completed, the Purchaser shall reimburse the Company forthwith Miramar for all reasonable fees and expenses (including any reasonable professional fees and expenses and taxes) incurred by Miramar and the Company Miramar Subsidiaries in considering or and effecting all or any part of the Pre-Acquisition Reorganization and shall be responsible for any fees, expenses and costs (including reasonable professional fees and expenses of Miramar and taxes) of the Company in reversing or unwinding Miramar Subsidiaries for steps that the parties agree, acting reasonably, may be necessary to mitigate any material adverse effect that would result from any Pre-Acquisition Reorganization that was effected prior to the Expiry Timetermination of the Agreement.
Appears in 1 contract
Reorganization. (a) The Company Prior to the Closing, unless otherwise mutually agreed by the Parties, Seller shall, and shall effect such reorganization of cause its businessSubsidiaries to, operations, subsidiaries and assets or such other transactions (each, use commercially reasonable endeavors to perform the Seller Reorganization Actions. To the extent that a “Pre-Acquisition Reorganization”) as the Purchaser may reasonably request Seller Reorganization Action is not completed prior to the Expiry TimeClosing, Seller shall, and shall cause its Subsidiaries to, use commercially reasonable endeavors to complete it as soon as practicable following the Closing; provided, however, provided that the Company need preceding sentence shall not be deemed as a waiver of the Condition set forth in Clause 4.3.3.
5.5.1 Schedule 1 may be amended or modified by Seller without the consent of Purchaser so long as such amendments or modifications would not, individually or in the aggregate:
5.5.1.1 affect the structuring of the Transaction in a way that would result in Purchaser acquiring equity of an entity that is not a member of the Target Group instead of acquiring certain assets;
5.5.1.2 materially adversely affect Purchaser and its Affiliates (after giving effect a Pre-Acquisition Reorganization which would impede to the Closing);
5.5.1.3 prevent or materially delay the take-up Closing;
5.5.1.4 materially interfere with, prevent or materially delay the ability of Exeter Shares Purchaser to perform its obligations under the Transaction Agreements or consummate the Transactions;
5.5.1.5 change in any material way the scope of the assets and liabilities intended to be indirectly acquired by Purchaser pursuant to this Agreement; or
5.5.1.6 otherwise be material to the Business; provided that in each case, Seller shall consult in good faith with Purchaser in connection with, and provide Purchaser with written notice of, any such amendments or modifications.
5.5.2 Seller shall keep Purchaser reasonably informed of the status and details of the Seller Reorganization Actions.
5.5.3 Purchaser shall, and shall cause its Affiliates to, use their commercially reasonable endeavors to cooperate with and assist Seller and its Affiliates (and their respective Representatives) with respect to the Seller Reorganization Actions, as reasonably requested by Seller, to the extent such requests are for the purpose for facilitating the Seller Reorganization Actions or otherwise relate to the consummation of the Contemplated Transactions or that would be prejudicial to the Company, its subsidiaries or the Exeter Securityholders or that would involve a material amount of the time and attention of the Company’s officers or employeesReorganization.
(b) Without limiting the foregoing 5.5.4 Any costs and other than as set forth in clause (a) above, the Company shall use its best efforts to obtain all necessary consents, approvals or waivers from any persons to effect each Pre-Acquisition Reorganization, and the Company shall cooperate with the Purchaser in structuring, planning and implementing any such Pre-Acquisition Reorganization. The Purchaser shall provide written notice to the Company of any proposed Pre-Acquisition Reorganization at least ten Business Days prior to the Expiry Time. In addition:
(i) any Pre-Acquisition Reorganization shall not unreasonably interfere with the Company’s material operations prior to the Effective Time and shall not become effective until the Purchaser shall have waived or confirmed in writing the satisfaction of all conditions in its favour in the Offer and in this Agreement and shall have confirmed in writing that it is prepared to promptly, and without condition, proceed to effect the acquisition of the Exeter Shares;
(ii) any Pre-Acquisition Reorganization shall not require the Company to contravene any applicable Laws, its organizational documents or any Material Contract; and
(iii) the Company shall not be obligated to take any action that could result in any Taxes being imposed on, or any adverse Tax or other consequences to, any Exeter Securityholder incrementally greater than the Taxes or other consequences to such party expenses in connection with performing the take-up of Exeter Shares and the consummation of the Offer in the absence of any Pre-Acquisition ReorganizationSeller Reorganization Actions shall be borne by Seller.
(c) The Purchaser acknowledges and agrees that the planning for and implementation of any Pre-Acquisition Reorganization shall not be considered a breach of any covenant under this Agreement and shall not be considered in determining whether a representation or warranty of the Company hereunder has been breached. The Purchaser and the Company shall work cooperatively and use commercially reasonable efforts to prepare prior to the Expiry Time all documentation necessary and do such other acts and things as are necessary to give effect to such Pre-Acquisition Reorganization. For greater certainty, the Company shall not be liable for the failure of the Purchaser to benefit from any anticipated Tax efficiency as a result of a Pre-Acquisition Reorganization.5.5.5 [***]
(d) The Purchaser agrees that it will be responsible for all costs and expenses associated with any Pre-Acquisition Reorganization to be carried out at its request and shall indemnify and save harmless the Company and its subsidiaries and their respective Representatives from and against any and all liabilities, losses, damages, claims, costs, expenses, interest awards, judgments and penalties suffered or incurred by any of them in connection with or as a result of any such Pre-Acquisition Reorganization (including in respect of any reversal, modification or termination of a Pre-Acquisition Reorganization) and that any Pre-Acquisition Reorganization will not be considered in determining whether a representation or warranty of the Company under this Agreement has been breached (including where any such Pre-Acquisition Reorganization requires the consent of any third party under a Contract). If the Offer is not completed, the Purchaser shall reimburse the Company forthwith for all fees and expenses (including any reasonable professional fees and expenses and taxes) incurred by the Company in considering or effecting all or any part of the Pre-Acquisition Reorganization and shall be responsible for any fees, expenses and costs (including reasonable professional fees and expenses and taxes) of the Company in reversing or unwinding any Pre-Acquisition Reorganization that was effected prior to the Expiry Time.5.5.5.1 [***]
5.5.5.2 [***]
Appears in 1 contract
Samples: Agreement for the Sale and Purchase of Shares and Assets (Jabil Inc)
Reorganization. (1) Upon and subject to the terms and conditions of Closing contained herein, on the Closing Date, the Reorganization shall be completed in the manner set forth below:
(a) The Company On the second Business Day preceding the Closing Date, the Corporation shall effect such reorganization file articles of its business, operations, subsidiaries and assets or such other transactions (each, a “Preamendment in the form of Exhibit I to create 100 Class C Non-Acquisition Reorganization”) as the Purchaser may reasonably request prior to the Expiry Time; provided, however, that the Company need not effect a Pre-Acquisition Reorganization which would impede or materially delay the take-up of Exeter Shares and the consummation of the Contemplated Transactions or that would be prejudicial to the Company, its subsidiaries or the Exeter Securityholders or that would involve a material amount of the time and attention of the Company’s officers or employeesVoting Preferred Shares.
(b) Without limiting Immediately after the foregoing and other than as set forth Corporation obtains a certificate of amendment under the CBCA for the articles of amendment referred to in clause (a) aboveSection 2.1(1)(a), the Company Corporation shall use its best efforts issue to obtain all necessary consents, approvals or waivers from any persons to effect each PreConexant 100 Class C Non-Acquisition Reorganization, and Voting Shares in consideration for the Company shall cooperate with the Purchaser in structuring, planning and implementing any such Pre-Acquisition Reorganization. The Purchaser shall provide written notice issue by Conexant to the Company Corporation of any proposed Pre-Acquisition Reorganization at least ten Business Days prior to the Expiry Time. In addition:
(i) any Pre-Acquisition Reorganization shall not unreasonably interfere with the Company’s material operations prior to the Effective Time and shall not become effective until the Purchaser shall have waived or confirmed in writing the satisfaction of all conditions in its favour in the Offer and in this Agreement and shall have confirmed in writing that it is prepared to promptly, and without condition, proceed to effect the acquisition of the Exeter 10 Conexant Shares;
(ii) any Pre-Acquisition Reorganization shall not require the Company to contravene any applicable Laws, its organizational documents or any Material Contract; and
(iii) the Company shall not be obligated to take any action that could result in any Taxes being imposed on, or any adverse Tax or other consequences to, any Exeter Securityholder incrementally greater than the Taxes or other consequences to such party in connection with the take-up of Exeter Shares and the consummation of the Offer in the absence of any Pre-Acquisition Reorganization.
(c) The Purchaser acknowledges and agrees that On the planning for and implementation Business Day preceding the Closing Date, the Corporation shall file articles of any Pre-Acquisition Reorganization shall not be considered a breach amendment in the form of any covenant under this Agreement and shall not be considered in determining whether a representation or warranty Part A of Exhibit II to create the Company hereunder has been breached. The Purchaser Special Shares and the Company shall work cooperatively Exchangeable Shares and use commercially reasonable efforts to prepare prior to change the Expiry Time all documentation necessary issued and do such other acts and things as are necessary to give effect to such Pre-Acquisition Reorganization. For greater certaintyoutstanding Common Shares into Exchangeable Shares, on the Company shall not be liable for basis set out in the failure of the Purchaser to benefit from any anticipated Tax efficiency as a result of a Pre-Acquisition Reorganizationrecitals hereto.
(d) The Purchaser agrees that it On the Closing Date, the Corporation shall file articles of amendment in the form of Part B of Exhibit II to change the issued and outstanding Class A Preferred Shares and Class B Preferred Shares into Exchangeable Shares, on the basis set out in the recitals hereto.
(e) Immediately after the Corporation obtains a certificate of amendment under the CBCA for the articles of amendment referred to in Section 2.1(1)(d), the Corporation shall issue 60,000 Special Shares to Conexant against receipt from Conexant of a share certificate representing the 100 Class C Non-voting Preferred Shares issued previously to Conexant.
(f) Subject to (k), below, at Closing, the Corporation shall deliver to each of the shareholders of the Corporation, certificates for the Exchangeable Shares issuable to such shareholder against delivery of certificates for all of the Common Shares, Class A Preferred Shares and Class B Preferred Shares held by such shareholder, accompanied by a letter of transmittal signed by such shareholder in the form attached hereto as Exhibit XII.
(g) On the Closing Date, each Employee Stock Option shall continue to have, and be subject to, the same terms and conditions set forth in the Share Option Plan except that: (i) each Employee Stock Option will be responsible exercisable for all costs and expenses associated with any Pre-Acquisition Reorganization to be carried out at its request and shall indemnify and save harmless the Company and its subsidiaries and their respective Representatives from and against any and all liabilities, losses, damages, claims, costs, expenses, interest awards, judgments and penalties suffered or incurred by any that whole number of them in connection with or as a result of any such Pre-Acquisition Reorganization (including in respect of any reversal, modification or termination of a Pre-Acquisition Reorganization) and that any Pre-Acquisition Reorganization will not be considered in determining whether a representation or warranty of the Company under this Agreement has been breached (including where any such Pre-Acquisition Reorganization requires the consent of any third party under a Contract). If the Offer is not completed, the Purchaser shall reimburse the Company forthwith for all fees and expenses (including any reasonable professional fees and expenses and taxes) incurred by the Company in considering or effecting all or any part of the Pre-Acquisition Reorganization and shall be responsible for any fees, expenses and costs (including reasonable professional fees and expenses and taxes) of the Company in reversing or unwinding any Pre-Acquisition Reorganization that was effected prior Conexant Shares equal to the Expiry Time.product obtained by multiplying the number of Common Shares issuable upon exercise of
Appears in 1 contract
Reorganization. During the period from the Amendment Date through the Effective Time, unless the other parties hereto shall otherwise agree in writing, none of the Parent, the Company or any of their respective Subsidiaries (aincluding, without limitation, Sub and Sister Subsidiary) The Company shall effect such reorganization of its businesstake any action, operationswhich action would, subsidiaries and assets or such other transactions (each, a “Pre-Acquisition Reorganization”) as the Purchaser may reasonably request prior to the Expiry TimeKnowledge of Parent or the Knowledge of the Company, respectively, jeopardize the qualification of the Merger and the Subsequent Merger (if consummated), taken together, as a "reorganization" within the meaning of Section 368(a) of the Code or otherwise cause special counsel to be unable to render the tax opinions set forth in Section 1.16; provided, however, that nothing herein shall require any party to agree to amend the terms of this Agreement or waive any rights under this Agreement; provided, further, that the parties acknowledge that special counsel to each of Parent and the Company need will not effect a Pre-Acquisition Reorganization which would impede or materially delay be able to conclude that the take-up "continuity of Exeter Shares interest" requirement necessary for the Merger and Subsequent Merger (if consummated), taken together, to so qualify will be met, and special counsel will not be able to render the consummation of the Contemplated Transactions or that would be prejudicial to the Company, its subsidiaries or the Exeter Securityholders or that would involve a material amount of the time and attention of the Company’s officers or employees.
(b) Without limiting the foregoing and other than as tax opinions set forth in clause (a) aboveSection 1.16, the Company shall use its best efforts to obtain all necessary consentsunless, approvals or waivers from any persons to effect each Pre-Acquisition Reorganization, and the Company shall cooperate with the Purchaser in structuring, planning and implementing any such Pre-Acquisition Reorganization. The Purchaser shall provide written notice to the Company of any proposed Pre-Acquisition Reorganization at least ten Business Days prior to the Expiry Time. In addition:
(i) any Pre-Acquisition Reorganization shall not unreasonably interfere with the Company’s material operations prior to the Effective Time and shall not become effective until Time, the Purchaser shall have waived or confirmed in writing the satisfaction of all conditions in its favour in the Offer and in this Agreement and shall have confirmed in writing that it is prepared to promptly, and without condition, proceed to effect the acquisition per share fair market value of the Exeter Parent Common Stock increases so that, as of the Effective Time, the aggregate fair market value of the Per Share Stock Consideration, stated as a percentage of the aggregate fair market value of the Per Share Merger Consideration and other cash deliverable pursuant to the Merger (and any amounts to be paid with respect to Dissenting Shares;
(ii) any Pre-Acquisition Reorganization shall not require ), is sufficient to permit special counsel to each of Parent and the Company to contravene conclude that the "continuity of interest" requirement will be satisfied, and nothing herein shall be construed to require Parent, the Company, any applicable Lawsof their respective Subsidiaries, its organizational documents Sub or Sister Subsidiary to refrain from taking any Material Contract; and
(iii) the Company shall not be obligated action or to take any action that could result in any Taxes being imposed on, or any adverse Tax or other consequences to, any Exeter Securityholder incrementally greater than so as to cause the Taxes or other consequences to such party in connection with the take-up of Exeter Shares and the consummation fair market value of the Offer in Parent Common Stock to be sufficient to satisfy such requirement. Without limiting the absence of any Pre-Acquisition Reorganization.
(c) The Purchaser acknowledges and agrees that foregoing, if the planning for and implementation of any Pre-Acquisition Reorganization shall not be considered a breach of any covenant under this Agreement and shall not be considered in determining whether a representation or warranty fair market value of the Company hereunder has been breached. The Purchaser Parent Common Stock does not increase sufficiently to permit special counsel to each of Parent and the Company shall work cooperatively and use commercially reasonable efforts to prepare prior conclude that the "continuity of interest" requirement will be satisfied, or the "continuity of interest" requirement is otherwise not satisfied due to the Expiry Time all documentation necessary fair market value of the Parent Common Stock, no party shall be deemed to have breached any representation, covenant or agreement in this Agreement by reason of any inability of either party's special counsel to conclude that the Merger and do Subsequent Merger (if consummated) would satisfy such other acts and things as are necessary to give effect to requirement or, in such Pre-Acquisition Reorganization. For greater certaintyevent, the Company shall not be liable for by reason of the failure of the Purchaser to benefit from any anticipated Tax efficiency as a result of a Pre-Acquisition Reorganization.
(d) The Purchaser agrees that it will be responsible for all costs and expenses associated with any Pre-Acquisition Reorganization Subsequent Merger to be carried out at its request and consummated; provided, further, that nothing in this Section 4.4 shall indemnify and save harmless be construed to require Parent to cause the Company and its subsidiaries and their respective Representatives from and against any and all liabilities, losses, damages, claims, costs, expenses, interest awards, judgments and penalties suffered or incurred by any of them in connection with or as a result of any such Pre-Acquisition Reorganization (including in respect of any reversal, modification or termination of a Pre-Acquisition Reorganization) and that any Pre-Acquisition Reorganization will not Subsequent Merger to be considered in determining whether a representation or warranty consummated except strictly upon satisfaction of the Company under this Agreement has been breached (including where any such Pre-Acquisition Reorganization requires conditions, and in accordance with the consent of any third party under a Contract). If the Offer is not completedterms of, the Purchaser shall reimburse the Company forthwith for all fees and expenses (including any reasonable professional fees and expenses and taxes) incurred by the Company in considering or effecting all or any part of the Pre-Acquisition Reorganization and shall be responsible for any fees, expenses and costs (including reasonable professional fees and expenses and taxes) of the Company in reversing or unwinding any Pre-Acquisition Reorganization that was effected prior to the Expiry TimeSection 1.16.
Appears in 1 contract
Samples: Merger Agreement (Advanced Fibre Communications Inc)
Reorganization. The Company agrees that, upon request by the Offeror, the Company shall (a) The Company shall effect such reorganization reorganizations of its business, operations, subsidiaries operations and assets or such other transactions as the Offeror may request, acting reasonably (each, a “Pre-Acquisition Reorganization”), and (b) as cooperate with the Purchaser may reasonably request prior Offeror and its advisors in order to determine the Expiry Timenature of the Pre-Acquisition Reorganizations that might be undertaken and the manner in which they might most effectively be undertaken; provided, however, that the Company need not effect a any Pre-Acquisition Reorganization which (i) is not prejudicial to the Company in any material respect, (ii) does not result in any material breach by the Company of its constating documents, any existing contract or commitment of the Company or any Law, or (iii) would impede not reasonably be expected to prevent or materially delay the take-Offeror’s ability to take up of Exeter and pay for the Shares and the consummation of the Contemplated Transactions or that would be prejudicial tendered to the Company, its subsidiaries or the Exeter Securityholders or that would involve a material amount of the time and attention of the Company’s officers or employees.
(b) Without limiting the foregoing and other than as set forth in clause (a) above, the Company shall use its best efforts to obtain all necessary consents, approvals or waivers from any persons to effect each Pre-Acquisition Reorganization, and the Company shall cooperate with the Purchaser in structuring, planning and implementing any such Pre-Acquisition ReorganizationOffer. The Purchaser Offeror shall provide written notice to the Company of any proposed Pre-Acquisition Reorganization at least ten Business Days prior to the Expiry Time. In addition:
(i) any Pre-Acquisition Reorganization shall not unreasonably interfere with Upon receipt of such notice, the Company’s material operations prior to the Effective Time and shall not become effective until the Purchaser shall have waived or confirmed in writing the satisfaction of all conditions in its favour in the Offer and in this Agreement and shall have confirmed in writing that it is prepared to promptly, and without condition, proceed to effect the acquisition of the Exeter Shares;
(ii) any Pre-Acquisition Reorganization shall not require the Company to contravene any applicable Laws, its organizational documents or any Material Contract; and
(iii) the Company shall not be obligated to take any action that could result in any Taxes being imposed on, or any adverse Tax or other consequences to, any Exeter Securityholder incrementally greater than the Taxes or other consequences to such party in connection with the take-up of Exeter Shares and the consummation of the Offer in the absence of any Pre-Acquisition Reorganization.
(c) The Purchaser acknowledges and agrees that the planning for and implementation of any Pre-Acquisition Reorganization shall not be considered a breach of any covenant under this Agreement and shall not be considered in determining whether a representation or warranty of the Company hereunder has been breached. The Purchaser Offeror and the Company shall work cooperatively co-operatively and use commercially reasonable efforts to prepare prior to the Expiry Time all documentation necessary and do all such other acts and things as are necessary to give effect to such Pre-Acquisition Reorganization. For greater certaintyThe Offeror agrees to waive any breach of a representation, warranty or covenant by the Company shall not be liable for the failure of the Purchaser to benefit from any anticipated Tax efficiency as where such breach is a result of a Pre-Acquisition Reorganization.
(d) The Purchaser agrees that it will be responsible for all costs and expenses associated with any Pre-Acquisition Reorganization to be carried out at its request and shall indemnify and save harmless an action taken by the Company and its subsidiaries and their respective Representatives from and against any and all liabilities, losses, damages, claims, costs, expenses, interest awards, judgments and penalties suffered or incurred in good faith pursuant to a request by any of them the Offeror in connection accordance with or as a result this Section 8.7. The completion of any such Pre-Acquisition Reorganization (including shall be subject to the satisfaction or waiver by the Offeror of the conditions set forth in respect Schedule A and shall be effected immediately prior to any take-up by the Offeror of any reversalShares tendered to the Offer. If the Offeror does not take up and pay for the Shares tendered to the Offer, modification or termination the Offeror shall reimburse the Company for all direct fees and expenses of a the Company incurred in connection with the proposed Pre-Acquisition Reorganization) , if any, and that any Pre-Acquisition Reorganization will not be considered in determining whether a representation or warranty of the Company under this Agreement has been breached (including where any such Pre-Acquisition Reorganization requires the consent of any third party under a Contract). If the Offer is not completed, the Purchaser shall reimburse the Company forthwith for all fees and expenses (including any reasonable professional fees and expenses and taxes) incurred adverse tax consequences suffered by the Company in considering or effecting all or any part as a result of implementing the Pre-Acquisition Reorganization and shall be responsible for any fees, expenses and costs (including reasonable professional fees and expenses and taxes) of the Company in reversing or unwinding any Pre-Acquisition Reorganization that was effected prior to the Expiry TimeReorganization.
Appears in 1 contract
Samples: Acquisition Support Agreement (CRCC-Tongguan Investment Co., Ltd.)
Reorganization. (a) The Prior to the Closing Date, Seller and its applicable Affiliates shall consummate the Reorganization in accordance with the steps set forth in Exhibit E (the “Reorganization Plan”), and take such additional action as may be necessary such that (i) the Acquired Companies hold at the Closing any Acquired Business Assets held by Seller or any of its subsidiaries other than the Acquired Companies (other than those Delayed-Transfer Assets that are unable to be transferred at or prior to Closing in accordance with this Agreement), (ii) the Seller-Retained Subsidiaries hold the Seller-Retained Assets at the Closing and (iii) the Company shall effect such reorganization transfer, in accordance with applicable law, to Seller immediately prior to Closing, the Seller-Retained Subsidiaries. Following the date of this Agreement but prior to Closing, neither Seller nor any of its businessAffiliates shall be permitted to amend Exhibit E without the prior written consent of Purchaser, operationswhich consent may not be unreasonably withheld, subsidiaries conditioned or delayed. In furtherance of the foregoing, Seller and assets its Affiliates shall execute and deliver all documents, make all filings, arrange for and undertake all related actions that Seller and the Company determine to be necessary and appropriate to consummate the Reorganization; provided, that all such documents, filings or such other transactions (each, a “Pre-Acquisition Reorganization”) as the similar documents shall be in form and substance reasonably acceptable to Purchaser may reasonably request prior to the Expiry Timeexecution thereof. All fees, costs and expenses incurred by any Seller, the Acquired Companies, Purchaser or any of their respective Affiliates in connection with the Reorganization shall be borne by Seller.
(b) Notwithstanding anything to the contrary in this Section 5.1 or elsewhere in this Agreement, there shall be excluded from the transactions contemplated by this Agreement (including the Reorganization) any asset, Real Property Lease, Permit or other Contract or right not owned by an Acquired Company which is not assignable or transferable without the consent of any Person other than Seller, the Acquired Companies or any subsidiary of Seller or Purchaser, to the extent that such consent shall not have been given prior to the Closing (i) (the “Delayed-Transfer Assets”); provided, however, that each of Seller and Purchaser shall have the Company need not effect a Pre-Acquisition Reorganization which would impede or materially delay continuing obligation until twelve (12) months after the take-up Closing to use their best efforts to (x) in the case of Exeter Shares and the consummation of the Contemplated Transactions or that would be prejudicial assets referred to the Company, its subsidiaries or the Exeter Securityholders or that would involve a material amount of the time and attention of the Company’s officers or employees.
(b) Without limiting the foregoing and other than as set forth in clause (ai) aboveof this Section 5.1(b), the Company shall use its best efforts to obtain all necessary consents, approvals or waivers from any persons to effect each Pre-Acquisition Reorganization, and the Company shall cooperate with the Purchaser in structuring, planning and implementing any such Pre-Acquisition Reorganization. The Purchaser shall provide written notice consents to the Company of assignment or transfer thereof, thereof, provided, that any proposed Pre-Acquisition Reorganization at least ten Business Days prior expenses or costs payable to the Expiry Time. In addition:
(i) any Pre-Acquisition Reorganization shall not unreasonably interfere with the Company’s material operations prior to the Effective Time and shall not become effective until the Purchaser shall have waived or confirmed in writing the satisfaction of all conditions in its favour in the Offer and in this Agreement and shall have confirmed in writing that it is prepared to promptly, and without condition, proceed to effect the acquisition of the Exeter Shares;
(ii) any Pre-Acquisition Reorganization shall not require the Company to contravene any applicable Laws, its organizational documents or any Material Contract; and
(iii) the Company shall not be obligated to take any action that could result in any Taxes being imposed on, or any adverse Tax or other consequences to, any Exeter Securityholder incrementally greater than the Taxes or other consequences to such third party in connection with obtaining such consents that Seller and Purchaser agree to pay in connection with such consent shall be equally borne by Purchaser and Seller, it being understood that neither Seller nor any of its Affiliates or subsidiaries shall be required to commence any litigation or offer or grant any accommodation (financial or otherwise). Upon obtaining the takerequisite third-up of Exeter Shares and the consummation of the Offer party consents thereto, such Delayed-Transfer Assets, if otherwise includable in the absence transactions contemplated hereby, shall promptly be transferred and assigned hereunder to Purchaser or one of its subsidiaries or Seller or one of its subsidiaries, as applicable; provided, however, that all fees, costs and expenses incurred by any Pre-Acquisition ReorganizationSeller, the Acquired Companies, Purchaser or any of their respective Affiliates in connection with any such transfer or assignment shall be borne by Seller.
(c) The With respect to any Delayed-Transfer Asset that is not transferred or assigned to Purchaser acknowledges or one of the Acquired Companies, on the one hand, or Seller or one of the Seller-Retained Subsidiaries, as applicable, in the Reorganization or otherwise at the Closing by reason of Section 5.1(a), after the Closing, until any requisite consent is obtained therefor and the same is transferred and assigned to Purchaser or one of the Acquired Companies, on the one hand, or Seller or one of the Seller-Retained Subsidiaries, as applicable, the Parties shall cooperate with each other, upon written request of Purchaser or Seller, as applicable, in endeavoring to obtain for Purchaser or Seller, as applicable, at no cost to Purchaser, Seller or their respective Affiliates, as applicable, an arrangement with respect thereto to provide the applicable Party substantially comparable benefits therein. Purchaser or Seller, as applicable, agrees that to indemnify the planning for providing Party and implementation their Affiliates in respect of all Liabilities of the providing Party in respect of any Pre-Acquisition Reorganization shall not be considered a breach of any covenant under this Agreement such arrangement, continuing operations and shall not be considered in determining whether a representation underlying lease, license, Contract, agreement or warranty of the Company hereunder has been breached. The Purchaser and the Company shall work cooperatively and use commercially reasonable efforts to prepare prior to the Expiry Time all documentation necessary and do such other acts and things as are necessary to give effect to such Pre-Acquisition Reorganization. For greater certainty, the Company shall not be liable for the failure of the Purchaser to benefit from any anticipated Tax efficiency as a result of a Pre-Acquisition Reorganizationright.
(d) The Purchaser acknowledges that certain consents to the transactions contemplated by this Agreement may be required from parties to the Real Property Leases, Permits or other Contracts or rights and that such consents may not be obtained. Without limiting any representation, warranty or covenant of Seller hereunder, Purchaser agrees that it will be responsible for all costs and expenses associated with any Pre-Acquisition Reorganization to be carried out at its request and shall indemnify and save harmless the Company and its subsidiaries and their respective Representatives from and against any and all liabilities, losses, damages, claims, costs, expenses, interest awards, judgments and penalties suffered or incurred by neither Seller nor any of them in connection with its Affiliates shall have any liability to Purchaser or its Affiliates arising out of or relating to the failure to receive any such consent, and no condition shall be deemed not satisfied, as a result of such failure or any Action commenced or threatened by or on behalf of any person arising out of or relating to the failure to receive any such Pre-Acquisition Reorganization (including in respect of any reversal, modification or termination of a Pre-Acquisition Reorganization) and that any Pre-Acquisition Reorganization will not be considered in determining whether a representation or warranty of the Company under this Agreement has been breached (including where any such Pre-Acquisition Reorganization requires the consent of any third party under a Contract). If the Offer is not completed, the Purchaser shall reimburse the Company forthwith for all fees and expenses (including any reasonable professional fees and expenses and taxes) incurred by the Company in considering or effecting all or any part of the Pre-Acquisition Reorganization and shall be responsible for any fees, expenses and costs (including reasonable professional fees and expenses and taxes) of the Company in reversing or unwinding any Pre-Acquisition Reorganization that was effected prior to the Expiry Timeconsent.
Appears in 1 contract
Samples: Stock Purchase Agreement (Nn Inc)
Reorganization. (a) The Company Offeror (and its advisors) and Alcan (and its advisors) shall effect co-operate to identify opportunities to maximize tax efficiencies which may be available in connection with the Contemplated Transactions. If Offeror and Alcan identify such reorganization opportunities by September 30, 2007, they shall determine the manner in which they would most effectively be undertaken, including by way of its reorganizations of Alcan’s business, operations, subsidiaries operations and assets or such other transactions (each, each a “Pre-Acquisition Reorganization”) as the Purchaser may reasonably request and Alcan shall use all commercially reasonable efforts to implement, with effect prior to Take-Up, such Pre-Acquisition Reorganizations. Notwithstanding the Expiry Time; providedforegoing, however, it is agreed and understood that the Company need not effect Alcan shall have no obligation to plan for or implement a Pre-Acquisition Reorganization which would impede or materially delay unless the take-up of Exeter Shares and the consummation of the Contemplated Transactions or that would be prejudicial to the Company, its subsidiaries or the Exeter Securityholders or that would involve a material amount of the time and attention of the Company’s officers or employees.
(b) Without limiting the foregoing and other than as set forth in clause (a) above, the Company shall use its best efforts to obtain all necessary consents, approvals or waivers from any persons to effect each Pre-Acquisition Reorganization, and the Company shall cooperate with the Purchaser in structuring, planning and implementing any such Pre-Acquisition Reorganization. The Purchaser shall provide written notice to the Company of any proposed Pre-Acquisition Reorganization at least ten Business Days prior to the Expiry Time. In additionfollowing conditions have been met:
(i) any Pre-Acquisition Reorganization shall not delay, impair or impede the completion of the Offer, any Compulsory Acquisition Transaction, any Subsequent Acquisition Transaction or the ability of Offeror and Rio Tinto to obtain any financing required by it in connection with the Contemplated Transactions;
(ii) any Pre-Acquisition Reorganization shall not unreasonably interfere with in the Company’s material ongoing operations prior of Alcan or any of its Subsidiaries;
(iii) any Pre-Acquisition Reorganization shall not require any filings with, notifications to or approvals of any Governmental Authority or third party (other than obtaining such Tax rulings, and filing such Tax elections or notifications, as Alcan shall agree are feasibly done and necessary in the Effective Time and circumstances);
(iv) any Pre-Acquisition Reorganization shall not require Alcan or any Subsidiary to contravene any Laws, their respective organizational documents or any Contract;
(v) any Pre-Acquisition Reorganization shall not become effective until the Purchaser unless Offeror shall have waived or confirmed in writing the satisfaction of all conditions in its favour in the Offer and in this Agreement under Schedule A and shall have confirmed in writing that it is prepared to promptly, immediately thereafter and without condition, condition proceed to effect the acquisition of the Exeter SharesTake-Up;
(iivi) any Pre-Acquisition Reorganization shall not require the Company to contravene any applicable Laws, Alcan and its organizational documents or any Material Contract; and
(iii) the Company Subsidiaries shall not be obligated to take any action that could result in any Taxes being imposed on, or any adverse Tax or other consequences to, any Exeter Securityholder securityholder of Alcan incrementally greater than the Taxes or other consequences to such party in connection with the take-up of Exeter Shares and the consummation of the Offer Offer, and Compulsory Acquisition or any Subsequent Acquisition Transaction in the absence of any Pre-Acquisition Reorganization; and
(vii) Alcan, its Subsidiaries and their respective officers, directors, employees, agents, advisors and representatives shall have received an indemnity, in form and substance satisfactory to Alcan, acting reasonably, from Offeror from and against any and all liabilities, losses, damages, claims, costs, expenses, interest, awards, judgements and penalties suffered or incurred by any of them in connection with or as a result of any Pre-Acquisition Reorganization.
(cb) The Purchaser determination as to whether the conditions set out in Section 6.12 (a) have or will be satisfied shall be that of Alcan, in its sole discretion. Offeror acknowledges and agrees that the planning for and implementation of any Pre-Acquisition Reorganization shall not be considered a breach of any covenant under this Agreement and shall not be considered in determining whether a representation or warranty of the Company Alcan hereunder has been breached. The Purchaser Where Alcan agrees to proceed with a Pre-Acquisition Reorganization, Offeror and Alcan shall, at the Company shall expense of Offeror, work cooperatively and use commercially reasonable efforts to prepare prior to the Expiry Time Take-Up, all documentation necessary and do such other acts and things as are necessary to give effect to such Pre-Acquisition ReorganizationReorganizations. For greater certainty, the Company Alcan shall not be liable for any failure to properly implement any Pre- Reorganization Transaction or for the failure of the Purchaser Offeror to benefit from any anticipated Tax efficiency as a result of a Pre-Acquisition Reorganizationtax efficiency.
(c) Alcan shall not knowingly and shall ensure that no Alcan Subsidiary shall knowingly take any action or enter into any transaction, other than a transaction contemplated by this Agreement or a transaction undertaken in the ordinary course of business consistent with past practice, that could reasonably be expected to have the effect of reducing or eliminating the amount of the tax cost “bump” pursuant to paragraphs 88(1)(c) and (d) The Purchaser agrees that it will be responsible for all costs and expenses associated with any Pre-Acquisition Reorganization of the Tax Act otherwise available to be carried out at its request and shall indemnify and save harmless the Company Offeror and its subsidiaries successors and their respective Representatives from and against any and all liabilities, losses, damages, claims, costs, expenses, interest awards, judgments and penalties suffered or incurred by any of them in connection with or as a result of any such Pre-Acquisition Reorganization (including assigns in respect of any reversal, modification or termination of a Prethe non-Acquisition Reorganization) depreciable capital properties owned by Alcan and that any Pre-Acquisition Reorganization will not be considered in determining whether a representation or warranty the Alcan Subsidiaries as of the Company under date of this Agreement has been breached (including where any or acquired by such Pre-Acquisition Reorganization requires entities subsequent to the consent date of any third party under a Contract)this Agreement in accordance with the terms of this Agreement, without first consulting with Offeror and Rio Tinto on same. If Alcan will use it reasonable efforts to address the Offer is not completed, the Purchaser shall reimburse the Company forthwith for all fees and expenses (including any reasonable professional fees and expenses and taxes) incurred by the Company concerns of Offeror in considering or effecting all or any part of the Pre-Acquisition Reorganization and shall be responsible for any fees, expenses and costs (including reasonable professional fees and expenses and taxes) of the Company in reversing or unwinding any Pre-Acquisition Reorganization that was effected regards to such provisions prior to the Expiry Timetaking or allowing its Subsidiary to take such action or transaction.
Appears in 1 contract
Samples: Support Agreement (Rio Tinto PLC)
Reorganization. (a) Prior to the Closing, Seller will use its commercially reasonable efforts to consummate the transactions set forth in the purchase and assumption agreement set forth on Exhibit B hereto (the “P&A Agreement”). The purpose and intent of the P&A Agreement is to (i) cause Target Company shall effect such reorganization to assign and transfer to Seller or one of its businessAffiliates (other than Target Company) (such person, operationsthe “Assignee”) all of Target Company’s assets and properties other than the Customer-Related Assets (such assets and properties together with the Non-Conforming IAS Accounts, subsidiaries the “Excluded Assets”) and assets or (ii) cause the Assignee to assume all of Target Company’s liabilities and obligations other than those liabilities and obligations arising from Buyer’s performance of the Target Company’s obligations under the Customer-Related Assets (such other transactions liabilities and obligations, the “Excluded Liabilities”) (eachsuch assignment and assumption, a the “Pre-Acquisition Reorganization”) as ). In connection with effecting the Purchaser may reasonably request prior Reorganization, with respect to the Expiry Time; investment portfolio securities, (A) the investment portfolio securities shall be assigned and transferred to Seller or one of its Affiliates, on the one hand, and retained by the Target Company, on the other hand, such that the aggregate xxxx-to-market losses are distributed pro rata between the two based on client deposit liabilities, (B) the xxxx-to-market pricing shall be performed by an independent third party (e.g. IDC) to be mutually agreed upon by Buyer and Seller, and (C) Buyer shall determine which investment portfolio securities shall be retained by the Target Company in accordance with the provisions set forth in the immediately preceding clauses (A) and (B). Seller, in consultation with Buyer, may modify the structure of the Reorganization, including the terms of the P&A Agreement, so long as such modifications do not materially affect the intended results of the Reorganization, provided, however, that the Company need not effect a Pre-Acquisition Reorganization which would impede or materially delay the take-up of Exeter Shares and the consummation of the Contemplated Transactions or that would be prejudicial Seller shall take under good faith consideration any reasonable comments timely received from Buyer relating to the Company, its subsidiaries or the Exeter Securityholders or that would involve a material amount of the time and attention of the Company’s officers or employeessuch modifications.
(b) Without limiting Except as Disclosed in Section 3.1.5(b) of the foregoing Seller Disclosure Schedule, as part of the Reorganization (and other than as set forth in clause (a) above, the Company shall use its best efforts to obtain all necessary consents, approvals or waivers from any persons to effect each Pre-Acquisition Reorganization, and the Company shall cooperate with the Purchaser in structuring, planning and implementing any such Pre-Acquisition Reorganization. The Purchaser shall provide written notice to the Company of any proposed Pre-Acquisition Reorganization at least ten Business Days prior to the Expiry Time. In addition:
Closing) all intercompany agreements, receivables, payables, loans and investments then existing between Seller or any of its Affiliates, on the one hand, and Target Company, on the other hand, (iother than the Transition Services Agreement) any Pre-Acquisition Reorganization shall not unreasonably interfere with the Company’s material operations be terminated, paid or otherwise eliminated prior to the Effective Time Closing Date and shall not become effective until the Purchaser shall have waived no further rights or confirmed in writing the satisfaction of all conditions in its favour in the Offer and in this Agreement and shall have confirmed in writing that it is prepared to promptly, and without condition, proceed to effect the acquisition of the Exeter Shares;
(ii) any Pre-Acquisition Reorganization shall not require the Company to contravene any applicable Laws, its organizational documents or any Material Contract; and
(iii) the Company shall not be obligated to take any action that could result in any Taxes being imposed on, or any adverse Tax or other consequences to, any Exeter Securityholder incrementally greater than the Taxes or other consequences to such party in connection with the take-up of Exeter Shares and the consummation of the Offer in the absence obligations of any Pre-Acquisition Reorganizationparty shall continue after the Closing thereunder.
(c) The Purchaser acknowledges For the purposes of this Agreement, “Customer-Related Assets” means all of Target Company’s right, title and agrees that interest in, to and of: the planning for Customers, all Customer accounts (including, without limitation, all Assets Under Custody in such accounts and implementation all deposits in and related to such accounts), all Customer Account Information, all documentation related to such Customer accounts, all contracts and agreements with such Customers (including, without limitation, program master service agreements and master services agreements with Customers), all accounts receivable and other current assets related to such Customer accounts, all of any Pre-Acquisition Reorganization shall not be considered a breach of any covenant under this Agreement Target Company’s Governmental Approvals, the Minimum Regulatory Capital, all Intellectual Property solely related to the Target Businesses (including, without limitation, the Target Intellectual Property), all Books and shall not be considered in determining whether a representation or warranty Records related to the Target Business, all Corporate Records, all goodwill of the Company hereunder has been breached. The Purchaser and the Company shall work cooperatively and use commercially reasonable efforts to prepare prior to the Expiry Time all documentation necessary and do such other acts and things as are necessary to give effect to such Pre-Acquisition Reorganization. For greater certainty, the Company shall not be liable for the failure of the Purchaser to benefit from any anticipated Tax efficiency Target Business as a result of a Pre-Acquisition Reorganization.
(d) The Purchaser agrees that going concern, any credits relating to deposit insurance assessments it will be responsible for all costs and expenses associated with any Pre-Acquisition Reorganization is eligible to be carried out at its request and shall indemnify and save harmless receive from the Company and its subsidiaries and their respective Representatives from and against any FDIC and all liabilities, losses, damages, claims, costs, expenses, interest awards, judgments other assets and penalties suffered or incurred by any of them properties Disclosed in connection with or as a result of any such Pre-Acquisition Reorganization (including in respect of any reversal, modification or termination of a Pre-Acquisition Reorganization) and that any Pre-Acquisition Reorganization will not be considered in determining whether a representation or warranty of the Company under this Agreement has been breached (including where any such Pre-Acquisition Reorganization requires the consent of any third party under a Contract). If the Offer is not completed, the Purchaser shall reimburse the Company forthwith for all fees and expenses (including any reasonable professional fees and expenses and taxes) incurred by the Company in considering or effecting all or any part of the Pre-Acquisition Reorganization and shall be responsible for any fees, expenses and costs (including reasonable professional fees and expenses and taxesSection 3.1.5(c) of the Company in reversing or unwinding any Pre-Acquisition Reorganization that was effected prior to the Expiry TimeSeller Disclosure Schedule.
Appears in 1 contract
Reorganization. (a) The Company shall effect Zazu will affect such reorganization of its business, operations, subsidiaries and assets or such other transactions (each, a “"Pre-Acquisition Reorganization”") as the Purchaser Solitario may reasonably request prior to the Expiry TimeEffective Date, and the Plan of Arrangement, if required, will be modified accordingly; provided, however, that the Company Zazu need not effect a Pre-Acquisition Reorganization which would impede or materially delay the take-up of Exeter Shares and the consummation of the Contemplated Transactions or that would be prejudicial to the Company, its subsidiaries or the Exeter Securityholders or that would involve a material amount of the time and attention of the Company’s officers or employeesArrangement.
(b) Without limiting the foregoing and other than as set forth in clause (a) above, the Company shall Zazu will use its best commercially reasonable efforts to obtain all necessary consents, approvals or waivers from any persons to effect each Pre-Acquisition Reorganization, and the Company shall Zazu will cooperate with the Purchaser Solitario in structuring, planning and implementing any such Pre-Acquisition Reorganization. The Purchaser shall Solitario will provide written notice to the Company Zazu of any proposed Pre-Acquisition Reorganization at least ten Business Days prior to the Expiry Timedate of the Zazu Meeting. In addition, the Parties agree:
(i) any Pre-Acquisition Reorganization shall will not unreasonably interfere with the Company’s in Zazu's material operations prior to the Effective Time and shall not become effective until the Purchaser shall have waived or confirmed in writing the satisfaction of all conditions in its favour in the Offer and in this Agreement and shall have confirmed in writing that it is prepared to promptly, and without condition, proceed to effect the acquisition of the Exeter SharesTime;
(ii) any Pre-Acquisition Reorganization shall will not require the Company Zazu to contravene any applicable Laws, its organizational documents or any Zazu Material Contract; and
(iii) the Company shall Zazu will not be obligated to take any action that could result in any Taxes being imposed on, or any adverse Tax or other consequences to, any Exeter Securityholder Zazu Shareholder incrementally greater than the Taxes or other consequences to such party in connection with the take-up of Exeter Shares and the consummation of the Offer Arrangement in the absence of any Pre-Acquisition Reorganization.
(c) The Purchaser Solitario acknowledges and agrees that the planning for and implementation of any Pre-Acquisition Reorganization shall will not be considered a breach of any covenant under this Agreement and shall will not be considered in determining whether a representation or warranty of the Company Zazu hereunder has been breached. The Purchaser Solitario and the Company shall Zazu will work cooperatively and use commercially reasonable efforts to prepare prior to the Expiry Effective Time all documentation necessary and do such other acts and things as are necessary to give effect to such Pre-Acquisition Reorganization. For greater certainty, the Company shall Zazu will not be liable for the failure of the Purchaser Solitario to benefit from any anticipated Tax efficiency as a result of a Pre-Acquisition Reorganization.
(d) The Purchaser agrees that it will be responsible If the Arrangement is not completed, Solitario shall reimburse Zazu for all reasonable costs and expenses associated with any Pre-Acquisition Reorganization to be carried out at its request including reasonable legal fees and shall indemnify and save harmless the Company and its subsidiaries and their respective Representatives from and against any and all liabilities, losses, damages, claims, costs, expenses, interest awards, judgments and penalties suffered or disbursements incurred by any of them in connection with or as a result of any such Pre-Acquisition Reorganization (including in respect of any reversal, modification or termination of a the Pre-Acquisition Reorganization) and that any Pre-Acquisition Reorganization will not be considered in determining whether a representation or warranty of the Company under this Agreement has been breached (including where any such Pre-Acquisition Reorganization requires the consent of any third party under a Contract). If the Offer is not completed, the Purchaser shall reimburse the Company forthwith for all fees and expenses (including any reasonable professional fees and expenses and taxes) incurred by the Company in considering or effecting all or any part of the Pre-Acquisition Reorganization and shall be responsible for any fees, expenses and costs (including reasonable professional fees and expenses and taxes) of the Company in reversing or unwinding any Pre-Acquisition Reorganization that was effected prior to the Expiry Time.
Appears in 1 contract
Samples: Arrangement Agreement (Solitario Exploration & Royalty Corp.)
Reorganization. Prior to the Closing, Seller shall, and shall cause its Controlled Affiliates to, use commercially reasonable efforts, subject to the receipt of any necessary Consents and Legal Requirements, to perform the actions and activities set forth on Exhibit A (a) The Company shall effect such reorganization of its businessas may be modified by the following proviso, operations, subsidiaries and assets or such other transactions (each, a the “Pre-Acquisition Reorganization”); provided that (i) as each of the Purchaser may reasonably request prior parties shall consider any amendments, supplements or modification to the Expiry Time; providedReorganization proposed by the other party in good faith and (ii) Seller shall be permitted to amend, howeversupplement or modify the Reorganization with Purchaser’s prior written consent (such consent not to be unreasonably withheld, conditioned or delayed, it being understood that Purchaser, in making its determination, may take into account any material adverse effect on the Company need not effect Acquired Companies or the Business of the proposed amendment, supplement or modification). All post-Closing reorganizational and operational separation work for the purposes of enabling Purchaser to operate the Business following the Closing shall be the sole responsibility of, and shall be completed at the sole cost of, Purchaser and its Affiliates. All incremental costs, fees, expenses, Taxes and other liabilities related to, incurred as a Pre-Acquisition Reorganization result of, or associated with the LLC Conversions and which would impede or materially delay the take-up of Exeter Shares and the consummation not have been incurred if an election under Section 338(h)(10) of the Contemplated Transactions Code had been made in lieu of the applicable LLC Conversion (excluding legal fees incurred to effect the LLC Conversions) (“Incremental Conversion Costs”) shall be the sole responsibility of Purchaser and its Affiliates and Purchaser shall pay or that would be prejudicial reimburse Seller and its Affiliates for any such Incremental Conversion Costs. Notwithstanding anything to the contrary contained herein, Purchaser and its Affiliates (including the Acquired Companies after the Closing) shall be solely responsible for any third party notification, retitling or relicensing of assets, or any other obligation of an Acquired Company, its subsidiaries whether by contract or operation of law, resulting solely from the Exeter Securityholders or that would involve a material amount of the time and attention of the Company’s officers or employees.
(b) Without limiting the foregoing and other than as set forth in clause (a) above, the Company shall use its best efforts to obtain all necessary consents, approvals or waivers from any persons to effect each Pre-Acquisition Reorganization, and the Company shall cooperate with the Purchaser in structuring, planning and implementing any such Pre-Acquisition Reorganization. The Purchaser shall provide written notice to the Company of any proposed Pre-Acquisition Reorganization at least ten Business Days prior to the Expiry Time. In addition:
(i) any Pre-Acquisition Reorganization shall not unreasonably interfere with the Company’s material operations prior to the Effective Time and shall not become effective until the Purchaser shall have waived or confirmed in writing the satisfaction of all conditions in its favour in the Offer and in this Agreement and shall have confirmed in writing that it is prepared to promptly, and without condition, proceed to effect the acquisition of the Exeter Shares;
(ii) any Pre-Acquisition Reorganization shall not require the Company to contravene any applicable Laws, its organizational documents or any Material Contract; and
(iii) the Company shall not be obligated to take any action that could result in any Taxes being imposed on, or any adverse Tax or other consequences to, any Exeter Securityholder incrementally greater than the Taxes or other consequences to such party in connection with the take-up of Exeter Shares and the consummation of the Offer in the absence of any Pre-Acquisition Reorganization.
(c) The Purchaser acknowledges and agrees that the planning for and implementation of any Pre-Acquisition Reorganization shall not be considered a breach of any covenant under this Agreement and Seller shall not be considered in determining whether a representation breach or violation of any representation, warranty or other provision of this Agreement as result of completing the Company hereunder has been breachedReorganization in accordance with this Section 6.5. The Purchaser For all purposes under this Agreement and in each case in accordance with the Company shall work cooperatively and use commercially reasonable efforts Reorganization, (1) to prepare the extent Seller transfers the equity interests of Batesville Services, Inc. to one of its Controlled Affiliates prior to the Expiry Time all documentation necessary Closing, such Controlled Affiliate shall be deemed a “Selling Subsidiary” hereunder and do such other acts and things as are necessary (2) to give effect the extent Seller transfers the equity interests of an Acquired Company to such Pre-Acquisition Reorganization. For greater certainty, the Company shall not be liable for the failure one of the Purchaser to benefit from any anticipated Tax efficiency as a result of a Pre-Acquisition Reorganization.
(d) The Purchaser agrees its Controlled Affiliates that it will be responsible for all costs and expenses associated with any Pre-Acquisition Reorganization to be carried out at its request and shall indemnify and save harmless the Company and its subsidiaries and their respective Representatives from and against any and all liabilities, losses, damages, claims, costs, expenses, interest awards, judgments and penalties suffered or incurred by any of them in connection with or as a result of any such Pre-Acquisition Reorganization (including in respect of any reversal, modification or termination of a Pre-Acquisition Reorganization) and that any Pre-Acquisition Reorganization will not be considered in determining whether a representation or warranty of the Company under this Agreement has been breached (including where any such Pre-Acquisition Reorganization requires the consent of any third party under a Contract). If the Offer is not completed, the Purchaser shall reimburse the an Acquired Company forthwith for all fees and expenses (including any reasonable professional fees and expenses and taxes) incurred by the Company in considering or effecting all or any part of the Pre-Acquisition Reorganization and shall be responsible for any fees, expenses and costs (including reasonable professional fees and expenses and taxes) of the Company in reversing or unwinding any Pre-Acquisition Reorganization that was effected prior to the Expiry TimeClosing, such Acquired Company shall be deemed an “Acquired Equity Company” hereunder.
Appears in 1 contract
Reorganization. Notwithstanding anything to the contrary contained herein, Borrower shall be permitted to, without the approval of the Administrative Agent or the Lenders, reorganize its corporate organizational structure to implement an “umbrella partnership” real estate investment trust structure by forming a limited partnership under the laws of any state of the United States or the District of Columbia (athe “OP”) The Company of which the Borrower (or a Wholly-Owned Subsidiary of the Borrower) is to be the general partner (the “Reorganization”). In the event of any such Reorganization, the Borrower may elect to cause (i) the OP to assume all of the Borrower’s liabilities and obligations under, and the Borrower may transfer and assign to the OP all of the Borrower’s rights and benefits under, the Loan Documents to which the Borrower is a party, and in such event Borrower shall effect such reorganization thereafter serve as a guarantor of the Facilities, or (ii) the OP to serve as a guarantor of the Facilities, it being acknowledged that in connection with a Reorganization, Borrower may elect that certain of its business, operations, subsidiaries and assets will be held by Borrower or such other transactions (each, a “Pre-Acquisition Reorganization”) Subsidiaries outside of the OP so long as the Purchaser may reasonably request OP owns at least the Qualified Assets in the Unencumbered Asset Pool immediately prior to the Expiry Time; provideddate of the Reorganization. Notwithstanding anything to the contrary contained herein, howeverAdministrative Agent shall have approved (which approval shall not be unreasonably withheld, conditioned or delayed) the material constituent documents executed in connection with a Reorganization, including any amendments or modifications to the Loan Documents (including opinions of counsel), and Administrative Agent shall be satisfied that such Reorganization does not adversely affect the Company need not effect a Pre-Acquisition Reorganization which would impede validity or materially delay enforceability of any of the take-up Loan Documents or the rights or remedies of Exeter Shares the Administrative Agent and the consummation of Lenders thereunder, and the Contemplated Transactions or that would be prejudicial to representations in Section 3.26 shall remain accurate and the Company, its subsidiaries or the Exeter Securityholders or that would involve a material amount of the time and attention of the Company’s officers or employees.
(b) Without limiting the foregoing and other than as covenants set forth in clause (a) above, the Company Sections 5.07 and 5.08 shall use its best efforts to obtain all necessary consents, approvals or waivers from any persons to effect each Pre-Acquisition Reorganization, and the Company shall cooperate with the Purchaser in structuring, planning and implementing any such Pre-Acquisition Reorganization. The Purchaser shall provide written notice to the Company of any proposed Pre-Acquisition Reorganization at least ten Business Days prior to the Expiry Time. In addition:
(i) any Pre-Acquisition Reorganization shall not unreasonably interfere with the Company’s material operations prior to the Effective Time and shall not become effective until the Purchaser shall have waived or confirmed in writing the satisfaction of all conditions in its favour in the Offer and in this Agreement and shall have confirmed in writing that it is prepared to promptly, and without condition, proceed to effect the acquisition of the Exeter Shares;
(ii) any Pre-Acquisition Reorganization shall not require the Company to contravene any applicable Laws, its organizational documents or any Material Contract; and
(iii) the Company shall not be obligated to take any action that could result in any Taxes being imposed on, or any adverse Tax or other consequences to, any Exeter Securityholder incrementally greater than the Taxes or other consequences to such party in connection with the take-up of Exeter Shares and the consummation of the Offer in the absence of any Pre-Acquisition Reorganizationremain complied with.
(c) The Purchaser acknowledges and agrees that the planning for and implementation of any Pre-Acquisition Reorganization shall not be considered a breach of any covenant under this Agreement and shall not be considered in determining whether a representation or warranty of the Company hereunder has been breached. The Purchaser and the Company shall work cooperatively and use commercially reasonable efforts to prepare prior to the Expiry Time all documentation necessary and do such other acts and things as are necessary to give effect to such Pre-Acquisition Reorganization. For greater certainty, the Company shall not be liable for the failure of the Purchaser to benefit from any anticipated Tax efficiency as a result of a Pre-Acquisition Reorganization.
(d) The Purchaser agrees that it will be responsible for all costs and expenses associated with any Pre-Acquisition Reorganization to be carried out at its request and shall indemnify and save harmless the Company and its subsidiaries and their respective Representatives from and against any and all liabilities, losses, damages, claims, costs, expenses, interest awards, judgments and penalties suffered or incurred by any of them in connection with or as a result of any such Pre-Acquisition Reorganization (including in respect of any reversal, modification or termination of a Pre-Acquisition Reorganization) and that any Pre-Acquisition Reorganization will not be considered in determining whether a representation or warranty of the Company under this Agreement has been breached (including where any such Pre-Acquisition Reorganization requires the consent of any third party under a Contract). If the Offer is not completed, the Purchaser shall reimburse the Company forthwith for all fees and expenses (including any reasonable professional fees and expenses and taxes) incurred by the Company in considering or effecting all or any part of the Pre-Acquisition Reorganization and shall be responsible for any fees, expenses and costs (including reasonable professional fees and expenses and taxes) of the Company in reversing or unwinding any Pre-Acquisition Reorganization that was effected prior to the Expiry Time.
Appears in 1 contract
Samples: Credit Agreement (Jones Lang LaSalle Income Property Trust, Inc.)
Reorganization. (a) The Company agrees that, upon request by the Parent, the Company shall and shall cause each of its subsidiaries to (i) effect such reorganization reorganizations of its businessbusiness (including for tax purposes), operations, subsidiaries operations and assets or such other transactions as the Parent may request, acting reasonably (each, each a “"Pre-Acquisition Reorganization”") as and (ii) co-operate with the Purchaser may reasonably request prior Parent and its Representatives in order to determine the Expiry Time; provided, however, that nature of the Company need not effect a Pre-Acquisition Reorganization which would impede or materially delay the take-up of Exeter Shares Reorganizations that might be undertaken and the consummation of the Contemplated Transactions or that would manner in which they might most effectively be prejudicial to the Company, its subsidiaries or the Exeter Securityholders or that would involve a material amount of the time and attention of the Company’s officers or employees.
(b) Without limiting the foregoing and other than as set forth in clause (a) above, the Company shall use its best efforts to obtain all necessary consents, approvals or waivers from any persons to effect each Pre-Acquisition Reorganization, and the Company shall cooperate with the Purchaser in structuring, planning and implementing any such Pre-Acquisition Reorganization. The Purchaser shall provide written notice to the Company of any proposed Pre-Acquisition Reorganization at least ten Business Days prior to the Expiry Time. In additionundertaken; provided that:
(ia) any Pre-Acquisition Reorganization shall not unreasonably interfere with the Company’s material operations prior to the Effective Time and shall not become effective until unless the Purchaser shall have waived or confirmed in writing the satisfaction of all conditions in its favour in the Offer Section 6.1 and in this Agreement Section 6.2 and shall have confirmed in writing that it is prepared to promptly, and promptly without condition, condition (other than the satisfaction of the condition contemplated by Section 6.2(a)) proceed to effect the acquisition of the Exeter SharesArrangement;
(iib) any the Pre-Acquisition Reorganization shall Reorganizations are not prejudicial to the Company, any subsidiary of the Company or the Shareholders in any material respect;
(c) the Pre-Acquisition Reorganizations do not unreasonably interfere in the ongoing operations of the Company or any of the subsidiaries of the Company;
(d) the Pre-Acquisition Reorganizations do not result in (i) any material breach by the Company of any existing contract or commitment of the Company; or (ii) a breach of any Law;
(e) the Pre-Acquisition Reorganizations do not require the Company approval of the Shareholders;
(f) the Pre-Acquisition Reorganizations would not reasonably be expected to contravene any applicable Laws, its organizational documents impede or any Material Contractdelay the completion of the Arrangement or the ability of the Purchaser to obtain the Financings; and
(iiig) the Company and its subsidiaries shall not be obligated to take any action that could result in any Taxes being imposed on, or any adverse Tax or other consequences to, any Exeter Securityholder securityholder of the Company incrementally greater than the Taxes or other consequences to such party in connection with the take-up of Exeter Shares and the consummation of the Offer Arrangement in the absence of any Pre-Acquisition Reorganization.
(c) . The Purchaser acknowledges and agrees that Parent shall provide written notice to the planning for and implementation Company of any proposed Pre-Acquisition Reorganization shall not be considered a breach at least ten (10) business days prior to the Effective Date. Upon receipt of any covenant under this Agreement and shall not be considered in determining whether a representation or warranty of such notice, the Company hereunder has been breached. The Purchaser Parent and the Company shall work cooperatively co-operatively and use commercially reasonable efforts to prepare prior to the Expiry Time Effective Date all documentation necessary and do all such other acts and things as are necessary to give effect to such Pre-Acquisition Reorganization. For greater certaintyThe Parent and the Purchaser agree to waive any breach of a representation, warranty or covenant by the Company shall not be liable for the failure of the Purchaser to benefit from any anticipated Tax efficiency as where such breach is a result of an action taken by the Company or its subsidiary in good faith pursuant to a request by the Parent in accordance with this Section 5.2. The Parent and the Purchaser shall indemnify the Company, its subsidiaries and their respective officers, directors and employees (to the extent that such employees are assessed with statutory liability thereto) for all direct and indirect costs or losses, including any adverse Tax consequences, out-of-pocket costs and expenses, including out-of-pocket legal fees and disbursements, incurred in connection with any proposed Pre-Acquisition Reorganization or the unwinding of any Pre-Acquisition Reorganization.
(d) The Purchaser agrees that it will be responsible for all costs and expenses associated with any Pre-Acquisition Reorganization to be carried out at its request and shall indemnify and save harmless the Company and its subsidiaries and their respective Representatives from and against any and all liabilities, losses, damages, claims, costs, expenses, interest awards, judgments and penalties suffered or incurred by any of them in connection with or as a result of any such Pre-Acquisition Reorganization (including in respect of any reversal, modification or termination of a Pre-Acquisition Reorganization) and that any Pre-Acquisition Reorganization will not be considered in determining whether a representation or warranty of the Company under this Agreement has been breached (including where any such Pre-Acquisition Reorganization requires the consent of any third party under a Contract). If the Offer is not completed, the Purchaser shall reimburse the Company forthwith for all fees and expenses (including any reasonable professional fees and expenses and taxes) incurred by the Company in considering or effecting all or any part of the Pre-Acquisition Reorganization and shall be responsible for any fees, expenses and costs (including reasonable professional fees and expenses and taxes) of the Company in reversing or unwinding any Pre-Acquisition Reorganization that was effected prior to the Expiry Time.
Appears in 1 contract
Samples: Arrangement Agreement (Semtech Corp)
Reorganization. (a) The Company shall, and shall effect such cause each of its Subsidiaries to, reasonably cooperate with Purchaser in planning, preparing and effectuating any reorganization of the Company’s or any of its Subsidiaries’ corporate structure, capital structure, business or operations, or transfer of securities, assets or business, operationsin each case, subsidiaries and assets or such other transactions (eachto be completed prior to the Closing, a “Pre-Acquisition Reorganization”) as the Purchaser may reasonably request prior or as may be necessary or appropriate to complete the Expiry Timetransactions contemplated hereby, including amalgamations, liquidations, reorganizations or stock or asset transfers (each a “Reorganization Transaction”), and to use its commercially reasonable efforts to implement any such Reorganization Transaction as Purchaser may reasonably request; provided, however, that the Company need not effect a Pre-Acquisition Reorganization which would impede or materially delay the take-up of Exeter Shares and the consummation of the Contemplated Transactions or that would be prejudicial to the Company, its subsidiaries or the Exeter Securityholders or that would involve a material amount of the time and attention of the Company’s officers or employees.
(b) Without limiting the foregoing and other than as set forth in clause (a) above, the Company shall use its best efforts to obtain all necessary consents, approvals or waivers from any persons to effect each Pre-Acquisition Reorganization, and the Company shall cooperate with the Purchaser in structuring, planning and implementing any such Pre-Acquisition Reorganization. The Purchaser shall provide written notice to the Company of any proposed Pre-Acquisition Reorganization at least ten Business Days prior to the Expiry Time. In addition:
(i) any Pre-Acquisition such Reorganization shall Transaction does not unreasonably interfere with the Company’s material ongoing operations prior to the Effective Time and shall not become effective until the Purchaser shall have waived or confirmed in writing the satisfaction of all conditions in its favour in the Offer and in this Agreement and shall have confirmed in writing that it is prepared to promptly, and without condition, proceed to effect the acquisition of the Exeter Shares;
Company and its Subsidiaries, (ii) any Pre-Acquisition such Reorganization shall not require Transaction is not, in the opinion of the Company, acting reasonably, prejudicial to the holders of Company Securities, the Company to contravene any applicable Laws, its organizational documents or any Material Contract; and
(iii) the Company shall of its Subsidiaries and does not be obligated to take any action that could result in any Taxes being imposed on, or any adverse Tax or other consequences to, any Exeter Securityholder incrementally greater holder of Company Securities, (iii) such Reorganization Transaction shall not materially impede or delay, or prevent, the receipt of any regulatory approvals, the satisfaction of any other conditions set forth in Article VII, the ability of Purchaser to obtain the Financing or consummation of the transactions contemplated hereby, (iv) such Reorganization Transaction does not require the Company to obtain the approval of the Company Shareholders (other than is obtained by virtue of the Taxes approval of the Arrangement) and does not require the Company or other consequences any of its Subsidiaries to obtain any consent of any third party if obtaining such party in connection with the take-up of Exeter Shares and consent would reasonably be expected to materially impede or delay the consummation of the Offer in transactions contemplated hereby, (v) Purchaser shall pay all direct or indirect costs and liabilities, fees, Damages, penalties and Taxes that may be incurred by the absence Company or its Subsidiaries as a consequence of any Pre-Acquisition Reorganization.
(c) The Purchaser acknowledges and agrees that the planning for and implementation of or to unwind any Presuch Reorganization Transaction if the Arrangement is not completed, including actual out-Acquisition of-pocket costs and expenses for filing fees and expenses of external counsel and auditors which may be incurred in connection with such Reorganization Transaction, (vi) no such Reorganization Transaction or any action of the Company or its Subsidiaries requested by the Purchaser in connection therewith shall not be considered to constitute a breach of any covenant under this Agreement and shall not be considered in determining whether a representation the representations, warranties, covenants or warranty agreements of the Company hereunder or in determining whether any of the conditions in Section 7.1 or Section 7.2 have been satisfied, (vii) such Reorganization Transaction shall not be contrary to applicable Laws or the organizational documents of the Company or any of its Subsidiaries (excluding wholly owned Subsidiaries) and would not result in any breach by the Company or any of its Subsidiaries of any Contract or Permit and (viii) such Reorganization Transaction shall not become effective unless Purchaser has been breachedirrevocably waived or confirmed in writing the satisfaction of all conditions in Section 7.1 and Section 7.2 and shall have confirmed in writing that it will, upon completion of the Reorganization Transaction, promptly and without condition or delay proceed to effect the Arrangement and (ix) such Reorganization Transaction is effected as close as reasonably practicable to the Effective Time.
(b) Purchaser shall provide written notice to the Company of any proposed Reorganization Transaction at least ten (10) Business Days prior to the anticipated Effective Time. The Upon receipt of such notice, Purchaser and the Company shall shall, subject in all cases to Section 6.14(a), work cooperatively co-operatively and use commercially reasonable efforts to prepare prior to the Expiry Effective Time all documentation necessary and do all such other acts and things as are necessary reasonably necessary, including making amendments to this Agreement or the Plan of Arrangement, to give effect to such Pre-Acquisition ReorganizationReorganization Transaction. For greater certaintyNo Reorganization Transaction will be made effective unless (i) it is reasonably certain, after consulting with the Company, that the Arrangement will become effective, (ii) such Reorganization Transaction can be reversed or unwound without materially adversely affecting the holders of Company Securities, the Company shall or any of its Subsidiaries in the event the Arrangement does not be liable for become effective and this Agreement is terminated (after giving effect to any reimbursement required by to this Section 6.14), or (iii) the failure Company otherwise consents to such Reorganization Transaction, acting reasonably. The obligation of the Purchaser to benefit from any anticipated Tax efficiency as a result of a Pre-Acquisition Reorganization.
(d) The Purchaser agrees that it will reimburse the Company for fees and expenses and be responsible for all costs as set out in this Section 6.14 will be in addition to any other payment Purchaser may be obligated to make hereunder and expenses associated with will survive termination of this Agreement. If the Arrangement is not completed for any Pre-Acquisition Reorganization reason, and without prejudice to be carried out at its request any other remedy of the Company, Purchaser hereby indemnifies and shall indemnify and save holds harmless the Company and its subsidiaries Subsidiaries and their respective Representatives from and against any and all liabilities, losses, damagesDamages, claims, costs, expenses, interest awards, judgments and penalties Taxes suffered or incurred by any of them in connection with or as a result of any such Pre-Acquisition Reorganization Transaction, or to reverse or unwind any Reorganization Transaction.
(including c) Without limiting the generality of the foregoing, but subject in respect of any reversal, modification or termination of a Pre-Acquisition Reorganizationall cases to Section 6.14(a) and Section 6.14(b), the Company acknowledges that any PrePurchaser may enter into one or more transactions (the “Bump Transactions”) designed to step up the adjusted cost base of certain non-Acquisition Reorganization will not be considered in determining whether a representation or warranty depreciable capital property of the Company under or its Subsidiaries for purposes of the ITA, and agrees to use commercially reasonable efforts to assist Purchaser and to provide information reasonably required by Purchaser in this Agreement has been breached (including where regard on a timely basis and to assist in the obtaining of any such Pre-Acquisition Reorganization requires information in order to facilitate a successful completion of the consent of any third party under a Contract). If the Offer is not completed, the Purchaser shall reimburse the Company forthwith for all fees and expenses (including any reasonable professional fees and expenses and taxes) incurred by the Company in considering or effecting all Bump Transactions or any part of the Pre-Acquisition Reorganization and shall be responsible for any fees, expenses and costs (including reasonable professional fees and expenses and taxes) of the Company in reversing such other reorganizations or unwinding any Pre-Acquisition Reorganization that was effected prior to the Expiry Timetransactions as is reasonably requested by Purchaser.
Appears in 1 contract
Reorganization. It is contemplated by Lender and Borrower that Borrower will close an initial registered public offering (aan "IPO") The Company with an underwriter selected by Borrower (the "Underwriter") prior to December 31, 1999. In order for Borrower to issue shares to the public in the IPO, Borrower will be required to reorganize as a corporation ("Reorganized Borrower") taxable under Subchapter C of the Internal Revenue Code of 1986, as amended (the "Reorganization"). Attached to this Agreement as Exhibit "B" and incorporated herein by this reference is an organizational chart (the "Organizational Chart") depicting Borrower and its affiliated companies (the "Group"). Contemporaneously with the closing of the IPO, the Reorganization shall effect such reorganization be effected so that Borrower is reorganized as a corporation on a tax-free basis and succeeds directly or indirectly to the ownership of its businessthe business of the other members of the Group, operations, subsidiaries and assets or such other transactions (eachthan Hospitality Marketing Consultants, a “Pregeneral partnership, which shall be excluded from the Reorganization. Borrower and Lender understand and acknowledge that the Reorganization is extremely complicated and complex and involves extensive planning to ensure that it can be accomplished on a tax-Acquisition Reorganization”) as the Purchaser may reasonably request prior free basis to the Expiry Time; providedMembers and without Material Adverse Effect on the Group's business. As part of the Reorganization, howeverReorganized Borrower shall indemnify Borrower's Members from all then current and preexisting liabilities, including tax liabilities. Borrower and Lender acknowledge and agree that the Company need not effect a Pre-Acquisition Reorganization which would impede or materially delay the take-up of Exeter Shares precise structure and the consummation exact manner of the Contemplated Transactions or Reorganization have not at present been determined, and that would be prejudicial to therefore the Company, its subsidiaries or the Exeter Securityholders or that would involve a material amount manner and form of the time and attention of the Company’s officers or employees.
(b) Without limiting the foregoing and other than as set forth in clause (a) above, the Company shall use its best efforts to obtain all necessary consents, approvals or waivers from any persons to effect each Pre-Acquisition Reorganization, and the Company shall cooperate with the Purchaser in structuring, planning and implementing any such Pre-Acquisition Reorganization. The Purchaser shall provide written notice to the Company of any proposed Pre-Acquisition Reorganization at least ten Business Days prior to the Expiry Time. In addition:
(i) any Pre-Acquisition Reorganization shall not unreasonably interfere with the Company’s material operations prior be subject to the Effective Time and shall not become effective until the Purchaser shall have waived or confirmed in writing the satisfaction of all conditions in its favour in the Offer and in this Agreement and shall have confirmed in writing that it is prepared to promptly, and without condition, proceed to effect the acquisition of the Exeter Shares;
(ii) any Pre-Acquisition Reorganization shall not require the Company to contravene any applicable Laws, its organizational documents or any Material Contract; and
(iii) the Company shall not be obligated to take any action that could result in any Taxes being imposed on, or any adverse Tax or other consequences to, any Exeter Securityholder incrementally greater than the Taxes or other consequences to such party in connection with the take-up of Exeter Shares and the consummation of the Offer in the absence of any Pre-Acquisition Reorganization.
(c) The Purchaser acknowledges Lender's reasonable approval. Borrower understands and agrees that the planning for in granting or withholding its approval, Lender may take into account its own tax and implementation of any Pre-Acquisition Reorganization shall not be considered a breach of any covenant under this Agreement and shall not be considered in determining whether a representation or warranty of the Company hereunder has been breachedsecurities requirements. The Purchaser and Members agree to take all actions required, including without limitation, contributing their equity interests in the Company other companies in the Group to Borrower, as shall work cooperatively and use commercially reasonable efforts to prepare prior to the Expiry Time all documentation necessary and do such other acts and things as are be necessary to give effect to such Pre-Acquisition Reorganization. For greater certainty, accomplish the Company shall not be liable for the failure of the Purchaser to benefit from any anticipated Tax efficiency Reorganization as a result of a Pre-Acquisition Reorganizationdevised by Borrower and approved by Lender as contemplated by this Section 2.3(a).
(d) The Purchaser agrees that it will be responsible for all costs and expenses associated with any Pre-Acquisition Reorganization to be carried out at its request and shall indemnify and save harmless the Company and its subsidiaries and their respective Representatives from and against any and all liabilities, losses, damages, claims, costs, expenses, interest awards, judgments and penalties suffered or incurred by any of them in connection with or as a result of any such Pre-Acquisition Reorganization (including in respect of any reversal, modification or termination of a Pre-Acquisition Reorganization) and that any Pre-Acquisition Reorganization will not be considered in determining whether a representation or warranty of the Company under this Agreement has been breached (including where any such Pre-Acquisition Reorganization requires the consent of any third party under a Contract). If the Offer is not completed, the Purchaser shall reimburse the Company forthwith for all fees and expenses (including any reasonable professional fees and expenses and taxes) incurred by the Company in considering or effecting all or any part of the Pre-Acquisition Reorganization and shall be responsible for any fees, expenses and costs (including reasonable professional fees and expenses and taxes) of the Company in reversing or unwinding any Pre-Acquisition Reorganization that was effected prior to the Expiry Time.
Appears in 1 contract
Samples: Loan and Investment Agreement (Hospitality Marketing Concepts Inc)
Reorganization. Meridian agrees that, upon request by Yamana, Meridian shall (ai) The Company shall effect such reorganization reorganizations of its business, operations, subsidiaries operations and assets or such other transactions as Yamana may request, acting reasonably (each, each a “Pre-Acquisition Reorganization”) as and (ii) co-operate with Yamana and its advisors in order to determine the Purchaser may reasonably request prior to nature of the Expiry Time; provided, however, that the Company need not effect a Pre-Acquisition Reorganization which would impede or materially delay the take-up of Exeter Shares Reorganizations that might be undertaken and the consummation of manner in which they might most effectively be undertaken; provided that the Contemplated Transactions or that would be prejudicial to the Company, its subsidiaries or the Exeter Securityholders or that would involve a material amount of the time and attention of the Company’s officers or employees.
(b) Without limiting the foregoing and other than as set forth in clause (a) above, the Company shall use its best efforts to obtain all necessary consents, approvals or waivers from any persons to effect each Pre-Acquisition Reorganization, Reorganizations are not prejudicial to Meridian in any material respect and (A) do not result in any breach by Meridian of (i) any existing contract or commitment of Meridian; or (ii) any Law; or (B) would not reasonably be expected to impede or delay Yamana’s ability to take up and pay for the Company shall cooperate with Shares tendered to the Purchaser in structuring, planning and implementing any such Pre-Acquisition ReorganizationOffer. The Purchaser Yamana shall provide written notice to the Company Meridian of any proposed Pre-Acquisition Reorganization at least ten Business Days five business days prior to the Expiry Time. In addition:
(i) any Pre-Acquisition Reorganization shall not unreasonably interfere with the Company’s material operations prior to the Effective Time Upon receipt of such notice, Yamana and shall not become effective until the Purchaser shall have waived or confirmed in writing the satisfaction of all conditions in its favour in the Offer and in this Agreement and shall have confirmed in writing that it is prepared to promptly, and without condition, proceed to effect the acquisition of the Exeter Shares;
(ii) any Pre-Acquisition Reorganization shall not require the Company to contravene any applicable Laws, its organizational documents or any Material Contract; and
(iii) the Company shall not be obligated to take any action that could result in any Taxes being imposed on, or any adverse Tax or other consequences to, any Exeter Securityholder incrementally greater than the Taxes or other consequences to such party in connection with the take-up of Exeter Shares and the consummation of the Offer in the absence of any Pre-Acquisition Reorganization.
(c) The Purchaser acknowledges and agrees that the planning for and implementation of any Pre-Acquisition Reorganization shall not be considered a breach of any covenant under this Agreement and shall not be considered in determining whether a representation or warranty of the Company hereunder has been breached. The Purchaser and the Company Meridian shall work cooperatively co-operatively and use commercially reasonable efforts to prepare prior to the Expiry Time all documentation necessary and do all such other acts and things as are necessary to give effect to such Pre-Acquisition Reorganization. For greater certaintyYamana agrees to waive any breach of a representation, the Company shall not be liable for the failure of the Purchaser to benefit from any anticipated Tax efficiency as warranty or covenant by Meridian where such breach is a result of an action taken by Meridian in good faith pursuant to a Pre-Acquisition Reorganization.
(d) request by Yamana in accordance with this Section 6.8 above. The Purchaser agrees that it will be responsible for all costs and expenses associated with any Pre-Acquisition Reorganization to be carried out at its request and shall indemnify and save harmless the Company and its subsidiaries and their respective Representatives from and against any and all liabilities, losses, damages, claims, costs, expenses, interest awards, judgments and penalties suffered or incurred by any of them in connection with or as a result completion of any such Pre-Acquisition Reorganization (shall be subject to the satisfaction or waiver by Yamana of the conditions to the Offer set forth in Schedule A and shall be effected immediately prior to any take-up by Yamana of Shares tendered to the Offer. If Yamana does not take up and pay for the Shares tendered to the Offer, Yamana shall indemnify Meridian for any and all losses, costs and expenses, including reasonable legal fees and disbursements, incurred in respect of connection with any reversal, modification or termination of a proposed Pre-Acquisition Reorganization) and that any Pre-Acquisition Reorganization will not be considered in determining whether a representation or warranty of the Company under this Agreement has been breached (including where any such Pre-Acquisition Reorganization requires the consent of any third party under a Contract). If the Offer is not completed, the Purchaser shall reimburse the Company forthwith for all fees and expenses (including any reasonable professional fees and expenses and taxes) incurred by the Company in considering or effecting all or any part of the Pre-Acquisition Reorganization and shall be responsible for any fees, expenses and costs (including reasonable professional fees and expenses and taxes) of the Company in reversing or unwinding any Pre-Acquisition Reorganization that was effected prior to the Expiry Time.
Appears in 1 contract
Reorganization. Purchaser acknowledges that prior to the Closing, Seller and its Affiliates may undertake a reorganization (a) The Company shall effect such reorganization of its business, operations, subsidiaries and assets or such other transactions (each, a the “Pre-Acquisition Reorganization”) that includes, among other things, (i) the transfer of (A) some or all of the assets and liabilities of Seller and/or certain of its Affiliates (which may include the Transferred Loans) and (B) some or all of the shares of direct or indirect subsidiaries of Seller (which may include the Equity Interests), in each case, to one or more direct or indirect subsidiaries of General Electric Company and (ii) the merger of Seller with and into General Electric Company. Purchaser agrees that notwithstanding anything in this Agreement to the contrary, nothing in this Agreement shall prohibit or restrict the consummation of (or any agreements to consummate) the Reorganization; it being agreed that Seller or its successor shall cause all of the Transferred Assets transferred by it or any of its Affiliates in the Reorganization to be transferred to Purchaser at the Closing to the same extent as is required of Seller hereunder. If the Purchaser may reasonably request Reorganization shall occur prior to the Expiry Time; providedClosing, however, that then at the Company need not effect a Pre-Acquisition Reorganization which would impede or materially delay Closing Purchaser shall acquire the take-up of Exeter Shares and Transferred Assets from the consummation then current owners of the Contemplated Transactions or that would be prejudicial to the Company, its subsidiaries or the Exeter Securityholders or that would involve a material amount Transferred Assets. Each of the time Seller and attention of the Company’s officers or employees.
(b) Without limiting the foregoing and other than as set forth in clause (a) above, the Company shall use its best efforts to obtain all necessary consents, approvals or waivers from any persons to effect each Pre-Acquisition Reorganization, and the Company shall cooperate with the Purchaser in structuring, planning and implementing any such Pre-Acquisition Reorganization. The Purchaser shall provide written notice to the Company of any proposed Pre-Acquisition Reorganization at least ten Business Days prior to the Expiry Time. In addition:
(i) any Pre-Acquisition Reorganization shall not unreasonably interfere with the Company’s material operations prior to the Effective Time and shall not become effective until the Purchaser shall have waived or confirmed in writing the satisfaction of all conditions in its favour in the Offer and in this Agreement and shall have confirmed in writing that it is prepared to promptly, and without condition, proceed to effect the acquisition of the Exeter Shares;
(ii) any Pre-Acquisition Reorganization shall not require the Company to contravene any applicable Laws, its organizational documents or any Material Contract; and
(iii) the Company shall not be obligated to take any action that could result in any Taxes being imposed on, or any adverse Tax or other consequences to, any Exeter Securityholder incrementally greater than the Taxes or other consequences to such party in connection with the take-up of Exeter Shares and the consummation of the Offer in the absence of any Pre-Acquisition Reorganization.
(c) The Purchaser acknowledges understands and agrees that any transfers, assignments, sales or other dispositions of assets, interests, rights, capital stock or otherwise made pursuant to the planning for and implementation of any PreReorganization, shall be made on an “AS-Acquisition Reorganization shall not be considered a breach of any covenant under this Agreement and shall not be considered in determining whether a IS,” “WHERE-IS” basis, without representation or warranty of any kind, and without recourse to the Company hereunder has been breachedperson making such transfer, assignment, sale or other disposition, and without recourse to the recipient thereof. The Purchaser and the Company shall work cooperatively and use commercially reasonable efforts to prepare prior to the Expiry Time all documentation necessary and do such other acts and things as are necessary to give effect to such Pre-Acquisition Reorganization. For greater certainty, the Company foregoing shall not be liable limit any of the representations, warranties or covenants made by Seller pursuant to this Agreement, or the liability of any successor by merger for the failure accuracy of Seller’s representations and warranties or for the Purchaser to benefit from any anticipated Tax efficiency as a result violation of a Pre-Acquisition Reorganization.
(d) The Purchaser agrees that it will be responsible for all costs and expenses associated with any Pre-Acquisition Reorganization to be carried out at its request and shall indemnify and save harmless the Company and its subsidiaries and their respective Representatives from and against any and all liabilities, losses, damages, claims, costs, expenses, interest awards, judgments and penalties suffered or incurred by any of them in connection with or as a result of any such Pre-Acquisition Reorganization (including in respect of any reversal, modification or termination of a Pre-Acquisition Reorganization) and that any Pre-Acquisition Reorganization will not be considered in determining whether a representation or warranty of the Company under this Agreement has been breached (including where any such Pre-Acquisition Reorganization requires the consent of any third party under a Contract). If the Offer is not completed, the Purchaser shall reimburse the Company forthwith for all fees and expenses (including any reasonable professional fees and expenses and taxes) incurred by the Company in considering or effecting all or any part of the Pre-Acquisition Reorganization and shall be responsible for any fees, expenses and costs (including reasonable professional fees and expenses and taxes) of the Company in reversing or unwinding any Pre-Acquisition Reorganization that was effected prior to the Expiry TimeSeller’s covenants.
Appears in 1 contract
Reorganization. (a) The Buyer hereby undertakes to, and cause the Company shall effect such reorganization to, cooperate and collaborate with the Seller in the preparation and implementation of its businessthe Reorganization, operationsas well as for the preparation and implementation of the Closing, subsidiaries in each case, including but not limited to obtaining all consents, authorizations, orders and assets approvals from all Governmental Authorities or such other transactions (eachPersons that may be or become necessary for the Reorganization and the Closing, a “Pre-Acquisition Reorganization”) as the Purchaser may reasonably request prior drafting, review and finalization of documents related to the Expiry Time; provided, however, that the Company need not effect a Pre-Acquisition Reorganization which would impede or materially delay the take-up of Exeter Shares and the consummation of the Contemplated Transactions or that would be prejudicial to the CompanyClosing, its subsidiaries or the Exeter Securityholders or that would involve a material amount of the time obtaining tax numbers, opening bank accounts, setting up accounting systems and attention of the Company’s officers or employeesall similar activities.
(b) Without limiting Seller shall take all steps required for it to complete the foregoing Seller’s Reorganization Documents and other than as set forth in clause (a) above, actions items under the Company shall use its best efforts to obtain all necessary consents, approvals or waivers from any persons to effect each Pre-Acquisition Reorganization, and responsibility of the Company shall cooperate with the Purchaser in structuring, planning and implementing any such Pre-Acquisition Reorganization. The Purchaser shall provide written notice to the Company of any proposed Pre-Acquisition Reorganization at least ten Business Days prior to the Expiry Time. In addition:
(i) any Pre-Acquisition Reorganization shall not unreasonably interfere with the Company’s material operations prior to the Effective Time and shall not become effective until the Purchaser shall have waived or confirmed in writing the satisfaction of all conditions in its favour Seller in the Offer and in this Agreement and shall have confirmed in writing that it is prepared to promptlyReorganization Closing Agenda, and without condition, proceed to effect the acquisition of the Exeter Shares;
(ii) any Pre-Acquisition Reorganization shall not require the Company to contravene any applicable Laws, its organizational documents or any Material Contract; and
(iii) the Company shall not be obligated to take any action that could result in any Taxes being imposed on, or any adverse Tax or other consequences to, any Exeter Securityholder incrementally greater than the Taxes or other consequences to such party in connection with the take-up of Exeter Shares and the consummation of the Offer in the absence of any Pre-Acquisition Reorganizationmanner contemplated thereunder and thereby the day before the Closing Date at the latest (the “Seller’s Reorganization Portion”).
(c) The Purchaser acknowledges and agrees that the planning for and implementation of any Pre-Acquisition Reorganization shall not be considered a breach of any covenant under this Agreement Buyer shall, and shall not be considered in determining whether a representation or warranty of cause the Company hereunder has been breached. The Purchaser Company, to take all steps required for it and the Company shall work cooperatively to complete the Buyer’s Reorganization Documents and use commercially reasonable efforts to prepare prior to actions items under the Expiry Time all documentation necessary responsibility of the Buyer and do such other acts and things as are necessary to give effect to such Pre-Acquisition Reorganization. For greater certainty, the Company shall not be liable for in the failure of Reorganization Closing Agenda, in the Purchaser to benefit from any anticipated Tax efficiency as a result of a Pre-Acquisition Reorganizationmanner contemplated thereunder and thereby the day before the Closing Date at the latest (the “Buyer’s Reorganization Portion”).
(d) The Purchaser agrees In the event that it will be responsible for the Closing does not occur, as contemplated under this Agreement, Buyer undertakes to forthwith (but no later than five (5) days) following the termination of this Agreement pursuant to Article IX take all costs actions (and expenses associated with any Pre-Acquisition Reorganization cause the Company) to be carried out at its request and shall indemnify and save harmless take all actions necessary to change the name of the Company to a name that does not include the word “Genepoc”.
(e) Furthermore, Buyer hereby acknowledges and undertakes that the Company, from the date of its subsidiaries and their respective Representatives from and against incorporation until the Closing Date, shall not carry-on any and all liabilitiesactive business, losseshave any employees, damageshave any property or assets, claimsof any nature or kind whatsoever, costshave any material obligations, expensesliabilities (whether actual or contingent) or indebtedness to any Person, interest awardsother than (i) cash, judgments and penalties suffered (ii) as contemplated or incurred by any of them in connection with the Reorganization including applications for permits and authorizations, or as a result of any such Pre-Acquisition Reorganization (including in respect of any reversal, modification or termination of a Pre-Acquisition Reorganizationiii) and that any Pre-Acquisition Reorganization will not be considered in determining whether a representation or warranty of the Company under this Agreement has been breached (including where any such Pre-Acquisition Reorganization requires the consent of any third party under a Contract). If the Offer is not completed, the Purchaser shall reimburse the Company forthwith for all fees and expenses (including any reasonable professional fees and expenses and taxes) incurred by the Company in considering or effecting all or any part of the Pre-Acquisition Reorganization and shall be responsible for any fees, expenses and costs (including reasonable professional fees and expenses and taxes) of the Company in reversing or unwinding any Pre-Acquisition Reorganization that was effected prior related to the Expiry Timefinancing contemplated by Buyer set forth in Section 6.02(e).
Appears in 1 contract
Reorganization. (a) The Company shall effect such reorganization of its business, operations, subsidiaries and assets or such other transactions (each, a “Pre-Acquisition Reorganization”) as the Purchaser may reasonably request prior to the Expiry TimeEffective Date, and the Plan of Arrangement, if required, shall be modified accordingly; provided, however, that the Company need not effect a Pre-Acquisition Reorganization which would impede or materially delay the take-up of Exeter Shares and the consummation of the Contemplated Transactions Arrangement or that would be prejudicial to the Company, its subsidiaries or the Exeter Securityholders or that would involve a material amount of the time and attention of the Company’s officers or employees.
(b) Without limiting the foregoing and other than as set forth in clause (a) above, the Company shall use its best efforts to obtain all necessary consents, approvals or waivers from any persons to effect each Pre-Acquisition Reorganization, and the Company shall cooperate with the Purchaser in structuring, planning and implementing any such Pre-Acquisition Reorganization. The Purchaser shall provide written notice to the Company of any proposed Pre-Acquisition Reorganization at least ten Business Days prior to the Expiry Timedate of the Exeter Meeting. In addition:
(i) any Pre-Acquisition Reorganization shall not unreasonably interfere with the Company’s material operations prior to the Effective Time and shall not become effective until the Purchaser shall have waived or confirmed confirms in writing all other conditions precedent to the satisfaction of all conditions Effective Time in its favour in the Offer and in this Agreement and shall have confirmed in writing that it is prepared to promptly, and without condition, proceed to effect the acquisition of the Exeter Sharesbeen satisfied or waived;
(ii) any Pre-Acquisition Reorganization shall not require the Company to contravene any applicable Laws, its organizational documents or any Material Contract; and
(iii) the Company shall not be obligated to take any action that could result in any Taxes being imposed on, or any adverse Tax or other consequences to, any Exeter Securityholder incrementally greater than the Taxes or other consequences to such party in connection with the take-up of Exeter Shares and the consummation of the Offer Arrangement in the absence of any Pre-Acquisition Reorganization.
(c) The Purchaser acknowledges and agrees that the planning for and implementation of any Pre-Acquisition Reorganization shall not be considered a breach of any covenant under this Agreement and shall not be considered in determining whether a representation or warranty of the Company hereunder has been breached. The Purchaser and the Company shall work cooperatively and use commercially reasonable efforts to prepare prior to the Expiry Effective Time all documentation necessary and do such other acts and things as are necessary to give effect to such Pre-Acquisition Reorganization. For greater certainty, the Company shall not be liable for the failure of the Purchaser to benefit from any anticipated Tax efficiency as a result of a Pre-Acquisition Reorganization.
(d) The Purchaser agrees that it will be responsible for all costs and expenses associated with any Pre-Acquisition Reorganization to be carried out at its request and shall indemnify and save harmless the Company and its subsidiaries and their respective Representatives from and against any and all liabilities, losses, damages, claims, costs, expenses, interest awards, judgments and penalties suffered or incurred by any of them in connection with or as a result of any such Pre-Acquisition Reorganization (including in respect of any reversal, modification or termination of a Pre-Acquisition Reorganization) and that any Pre-Acquisition Reorganization will not be considered in determining whether a representation or warranty of the Company under this Agreement has been breached (including where any such Pre-Acquisition Reorganization requires the consent of any third party under a Contract). If the Offer Arrangement is not completed, the Purchaser shall reimburse the Company forthwith for all fees and expenses (including any reasonable professional fees and expenses and taxes) incurred by the Company in considering or effecting all or any part of the Pre-Acquisition Reorganization and shall be responsible for any fees, expenses and costs (including reasonable professional fees and expenses and taxes) of the Company in reversing or unwinding any Pre-Acquisition Reorganization that was effected prior to the Expiry TimeEffective Date.
Appears in 1 contract
Reorganization. (a) The Company Offeror (and its advisors) and Alcan (and its advisors) shall effect co-operate to identify opportunities to maximize tax efficiencies which may be available in connection with the Contemplated Transactions. If Offeror and Alcan identify such reorganization opportunities by September 30, 2007, they shall determine the manner in which they would most effectively be undertaken, including by way of its reorganizations of Alcan's business, operations, subsidiaries operations and assets or such other transactions (each, each a “"Pre-Acquisition Reorganization”") as the Purchaser may reasonably request and Alcan shall use all commercially reasonable efforts to implement, with effect prior to Take-Up, such Pre-Acquisition Reorganizations. Notwithstanding the Expiry Time; providedforegoing, however, it is agreed and understood that the Company need not effect Alcan shall have no obligation to plan for or implement a Pre-Acquisition Reorganization which would impede or materially delay unless the take-up of Exeter Shares and the consummation of the Contemplated Transactions or that would be prejudicial to the Company, its subsidiaries or the Exeter Securityholders or that would involve a material amount of the time and attention of the Company’s officers or employees.
(b) Without limiting the foregoing and other than as set forth in clause (a) above, the Company shall use its best efforts to obtain all necessary consents, approvals or waivers from any persons to effect each Pre-Acquisition Reorganization, and the Company shall cooperate with the Purchaser in structuring, planning and implementing any such Pre-Acquisition Reorganization. The Purchaser shall provide written notice to the Company of any proposed Pre-Acquisition Reorganization at least ten Business Days prior to the Expiry Time. In additionfollowing conditions have been met:
(i) any Pre-Acquisition Reorganization shall not delay, impair or impede the completion of the Offer, any Compulsory Acquisition Transaction, any Subsequent Acquisition Transaction or the ability of Offeror and Rio Tinto to obtain any financing required by it in connection with the Contemplated Transactions;
(ii) any Pre-Acquisition Reorganization shall not unreasonably interfere with in the Company’s material ongoing operations prior of Alcan or any of its Subsidiaries;
(iii) any Pre-Acquisition Reorganization shall not require any filings with, notifications to or approvals of any Governmental Authority or third party (other than obtaining such Tax rulings, and filing such Tax elections or notifications, as Alcan shall agree are feasibly done and necessary in the Effective Time and circumstances);
(iv) any Pre-Acquisition Reorganization shall not require Alcan or any Subsidiary to contravene any Laws, their respective organizational documents or any Contract;
(v) any Pre-Acquisition Reorganization shall not become effective until the Purchaser unless Offeror shall have waived or confirmed in writing the satisfaction of all conditions in its favour in the Offer and in this Agreement under Schedule A and shall have confirmed in writing that it is prepared to promptly, immediately thereafter and without condition, condition proceed to effect the acquisition of the Exeter SharesTake-Up;
(iivi) any Pre-Acquisition Reorganization shall not require the Company to contravene any applicable Laws, Alcan and its organizational documents or any Material Contract; and
(iii) the Company Subsidiaries shall not be obligated to take any action that could result in any Taxes being imposed on, or any adverse Tax or other consequences to, any Exeter Securityholder securityholder of Alcan incrementally greater than the Taxes or other consequences to such party in connection with the take-up of Exeter Shares and the consummation of the Offer Offer, and Compulsory Acquisition or any Subsequent Acquisition Transaction in the absence of any Pre-Acquisition Reorganization; and
(vii) Alcan, its Subsidiaries and their respective officers, directors, employees, agents, advisors and representatives shall have received an indemnity, in form and substance satisfactory to Alcan, acting reasonably, from Offeror from and against any and all liabilities, losses, damages, claims, costs, expenses, interest, awards, judgements and penalties suffered or incurred by any of them in connection with or as a result of any Pre-Acquisition Reorganization.
(cb) The Purchaser determination as to whether the conditions set out in Section 6.12 (a) have or will be satisfied shall be that of Alcan, in its sole discretion. Offeror acknowledges and agrees that the planning for and implementation of any Pre-Acquisition Reorganization shall not be considered a breach of any covenant under this Agreement and shall not be considered in determining whether a representation or warranty of the Company Alcan hereunder has been breached. The Purchaser Where Alcan agrees to proceed with a Pre-Acquisition Reorganization, Offeror and Alcan shall, at the Company shall expense of Offeror, work cooperatively and use commercially reasonable efforts to prepare prior to the Expiry Time Take-Up, all documentation necessary and do such other acts and things as are necessary to give effect to such Pre-Acquisition ReorganizationReorganizations. For greater certainty, the Company Alcan shall not be liable for any failure to properly implement any Pre- Reorganization Transaction or for the failure of the Purchaser Offeror to benefit from any anticipated Tax efficiency as a result of a Pre-Acquisition Reorganizationtax efficiency.
(c) Alcan shall not knowingly and shall ensure that no Alcan Subsidiary shall knowingly take any action or enter into any transaction, other than a transaction contemplated by this Agreement or a transaction undertaken in the ordinary course of business consistent with past practice, that could reasonably be expected to have the effect of reducing or eliminating the amount of the tax cost "bump" pursuant to paragraphs 88(1)(c) and (d) The Purchaser agrees that it will be responsible for all costs and expenses associated with any Pre-Acquisition Reorganization of the Tax Act otherwise available to be carried out at its request and shall indemnify and save harmless the Company Offeror and its subsidiaries successors and their respective Representatives from and against any and all liabilities, losses, damages, claims, costs, expenses, interest awards, judgments and penalties suffered or incurred by any of them in connection with or as a result of any such Pre-Acquisition Reorganization (including assigns in respect of any reversal, modification or termination of a Prethe non-Acquisition Reorganization) depreciable capital properties owned by Alcan and that any Pre-Acquisition Reorganization will not be considered in determining whether a representation or warranty the Alcan Subsidiaries as of the Company under date of this Agreement has been breached (including where any or acquired by such Pre-Acquisition Reorganization requires entities subsequent to the consent date of any third party under a Contract)this Agreement in accordance with the terms of this Agreement, without first consulting with Offeror and Rio Tinto on same. If Alcan will use it reasonable efforts to address the Offer is not completed, the Purchaser shall reimburse the Company forthwith for all fees and expenses (including any reasonable professional fees and expenses and taxes) incurred by the Company concerns of Offeror in considering or effecting all or any part of the Pre-Acquisition Reorganization and shall be responsible for any fees, expenses and costs (including reasonable professional fees and expenses and taxes) of the Company in reversing or unwinding any Pre-Acquisition Reorganization that was effected regards to such provisions prior to the Expiry Timetaking or allowing its Subsidiary to take such action or transaction.
Appears in 1 contract
Samples: Support Agreement (Alcan Inc)
Reorganization. Pursuant to the Reorganization Transfer Documents and upon the terms and subject to the terms and conditions set forth in this Agreement (it being understood that in the event of any inconsistencies or conflicts between the terms of this Agreement and the terms of any Reorganization Transfer Document, the terms of this Agreement shall prevail, except to the extent the Parties have mutually agreed otherwise in writing), between the date hereof and the Closing, Xxxxxx shall, and shall cause its Affiliates, as applicable, to, take such steps as are required to effect the following (the “Reorganization”) in compliance in all respects with the plan of reorganization set forth in Exhibit 6.1 hereto, as such plan may be modified by the Reorganization Committee in accordance with Section 6.2 (the “Reorganization Plan”):
(a) The Company Xxxxxx shall, and shall effect cause its Affiliates, as applicable, to, take such reorganization of its businesssteps as are required to (i) sell, operationsconvey, subsidiaries assign, transfer and assets or such other transactions (each, a “Pre-Acquisition Reorganization”) as the Purchaser may reasonably request prior deliver to the Expiry Time; providedAcquired Companies or the Acquired Company Subsidiaries, howeveras applicable, that the Company need not effect a Pre-Acquisition Reorganization which would impede or materially delay the take-up all of Exeter Shares Xxxxxx’x and the consummation of the Contemplated Transactions or that would be prejudicial Continuing Affiliates’ right, title and interest in and to the CompanyTransferred Business Assets (other than the French Business IP Assets), its subsidiaries free and clear of all Encumbrances (other than Permitted Encumbrances), (ii) cause the Acquired Companies or the Exeter Securityholders Acquired Company Subsidiaries, as applicable, to assume the Assumed Business Liabilities and (iii) cause Xxxxxx or that would involve a material amount of the time Continuing Affiliates, as applicable, on the one hand, and attention of the Company’s officers or employees.Acquired Companies and the Acquired Company Subsidiaries, as applicable, on the other hand, to enter into the Manufacturing and Supply Agreements; and
(b) Without limiting the foregoing and other than as set forth in clause (a) above, the Company shall use its best efforts to obtain all necessary consents, approvals or waivers from any persons to effect each Pre-Acquisition ReorganizationXxxxxx shall, and the Company shall cooperate with the Purchaser in structuringcause its Affiliates, planning and implementing any as applicable, to, take such Pre-Acquisition Reorganization. The Purchaser shall provide written notice steps as are required to the Company of any proposed Pre-Acquisition Reorganization at least ten Business Days prior to the Expiry Time. In addition:
(i) any Pre-Acquisition Reorganization shall not unreasonably interfere with sell, convey, assign, transfer and deliver to Xxxxxx or the Company’s material operations prior Continuing Affiliates, as applicable, all of the Acquired Companies’ and the Acquired Company Subsidiaries’ right, title and interest in and to the Effective Time Excluded Assets and shall not become effective until the Purchaser shall have waived or confirmed in writing the satisfaction of all conditions in its favour in the Offer and in this Agreement and shall have confirmed in writing that it is prepared to promptly, and without condition, proceed to effect the acquisition of the Exeter Shares;
(ii) any Pre-Acquisition Reorganization shall not require cause Xxxxxx or the Company Continuing Affiliates, as applicable, to contravene any applicable Laws, its organizational documents or any Material Contract; and
(iii) assume the Company shall not be obligated to take any action that could result in any Taxes being imposed on, or any adverse Tax or other consequences to, any Exeter Securityholder incrementally greater than the Taxes or other consequences to such party in connection with the take-up of Exeter Shares and the consummation of the Offer in the absence of any Pre-Acquisition ReorganizationExcluded Liabilities.
(c) The Purchaser acknowledges and agrees that the planning for and implementation of any Pre-Acquisition Reorganization shall not be considered a breach of any covenant under this Agreement and shall not be considered in determining whether a representation or warranty of the Company hereunder has been breached. The Purchaser and the Company shall work cooperatively and use commercially reasonable efforts to prepare prior to the Expiry Time all documentation necessary and do such other acts and things as are necessary to give effect to such Pre-Acquisition Reorganization. For greater certainty, the Company shall not be liable for the failure of the Purchaser to benefit from any anticipated Tax efficiency as a result of a Pre-Acquisition Reorganization.
(d) The Purchaser agrees that it will be responsible for all costs and expenses associated with any Pre-Acquisition Reorganization to be carried out at its request and shall indemnify and save harmless the Company and its subsidiaries and their respective Representatives from and against any and all liabilities, losses, damages, claims, costs, expenses, interest awards, judgments and penalties suffered or incurred by any of them in connection with or as a result of any such Pre-Acquisition Reorganization (including in respect of any reversal, modification or termination of a Pre-Acquisition Reorganization) and that any Pre-Acquisition Reorganization will not be considered in determining whether a representation or warranty of the Company under this Agreement has been breached (including where any such Pre-Acquisition Reorganization requires the consent of any third party under a Contract). If the Offer is not completed, the Purchaser shall reimburse the Company forthwith for all fees and expenses (including any reasonable professional fees and expenses and taxes) incurred by the Company in considering or effecting all or any part of the Pre-Acquisition Reorganization and shall be responsible for any fees, expenses and costs (including reasonable professional fees and expenses and taxes) of the Company in reversing or unwinding any Pre-Acquisition Reorganization that was effected prior to the Expiry Time.
Appears in 1 contract
Samples: Business Transfer Agreement and Plan of Merger (Mylan Inc.)
Reorganization. Each of HEC, HEC Acquisition Partnership, L.P., HEC Acquisition Corp., HCRC, HCRC Acquisition Corp., HEP and HEPGP Ltd. (acollectively, the "Reorganization Parties") The Company shall effect such reorganization of its businesshas all requisite partnership or corporate power and authority, operationsas the case may be, subsidiaries to execute, deliver and assets or such perform the Merger and Asset Contribution Agreement as amended, (the "Reorganization Agreement") entered into by them on December 15, 1998 and to consummate the Reorganization and the other transactions contemplated thereby. The execution, delivery and performance by each of the Reorganization Parties of the Reorganization Agreement and the other documents delivered by such Reorganization Party pursuant thereto or in connection therewith (eachwith respect to each Reorganization Party, a “Pre-Acquisition Reorganization”the "Reorganization Documents") have been duly authorized by all necessary corporate or partnership action, as the Purchaser case may reasonably request prior be. There is no action, suit or proceeding pending or threatened which questions the validity or legality of, or seeks damages in connection with the Reorganization Documents, the Reorganization or any actions contemplated thereby. The execution, delivery and performance by each of the Reorganization Parties of the Reorganization Documents to the Expiry Time; provided, however, that the Company need not effect which it is a Pre-Acquisition Reorganization which would impede or materially delay the take-up of Exeter Shares party and the consummation of the Contemplated Transactions Reorganization do not and will not conflict with or that would be prejudicial to violate the Company, its subsidiaries or the Exeter Securityholders or that would involve a material amount constituent documents of the time and attention of the Company’s officers or employees.
(b) Without limiting the foregoing and other than as set forth in clause (a) above, the Company shall use its best efforts to obtain all necessary consents, approvals or waivers from any persons to effect each Pre-Acquisition Reorganization, and the Company shall cooperate with the Purchaser in structuring, planning and implementing any such Pre-Acquisition Reorganization. The Purchaser shall provide written notice to the Company of any proposed Pre-Acquisition Reorganization at least ten Business Days prior to the Expiry Time. In addition:
(i) any Pre-Acquisition Reorganization shall not unreasonably interfere with the Company’s material operations prior to the Effective Time and shall not become effective until the Purchaser shall have waived or confirmed in writing the satisfaction of all conditions in its favour in the Offer and in this Agreement and shall have confirmed in writing that it is prepared to promptly, and without condition, proceed to effect the acquisition of the Exeter Shares;
(ii) any Pre-Acquisition Reorganization shall not require the Company to contravene any applicable Laws, its organizational documents Party or any Material Contract; and
(iii) the Company shall not be obligated to take any action that could result in any Taxes being imposed onlaw, statute, or published rule or regulation, or any adverse Tax writ, order or other consequences todecision of any court or governmental instrumentality binding on HEC or any of its Subsidiaries or any indenture, mortgage, contract, instrument or agreement to which HEC or any Exeter Securityholder incrementally greater than of its Subsidiaries is a party or by which it or its assets is bound. Neither the Taxes execution, delivery or other consequences performance by each of the Reorganization Parties of the Reorganization Documents to such which it is a party in connection with the take-up of Exeter Shares and nor the consummation of the Offer in Reorganization require the absence consent or approval or other action of, or the making of any Pre-Acquisition Reorganization.
filing with, any governmental authority, other than (cNY) The Purchaser acknowledges 27008/757/CA99/ca.99.conf.wpd such consents and agrees approvals that have been obtained, such other actions that have been taken and such other filings that have been made and that, in each case, are in full force and effect on the planning for and implementation of any Pre-Acquisition Reorganization shall not be considered a breach of any covenant under this Agreement and shall not be considered date hereof. All conditions precedent set forth in determining whether a representation or warranty Article VIII of the Company hereunder has Reorganization Agreement have been breached. The Purchaser and the Company shall work cooperatively and use commercially reasonable efforts to prepare prior to the Expiry Time all documentation necessary and do such other acts and things as are necessary to give effect to such Pre-Acquisition Reorganization. For greater certainty, the Company shall not be liable for the failure of the Purchaser to benefit from any anticipated Tax efficiency as a result of a Pre-Acquisition Reorganizationsatisfied.
(d) The Purchaser agrees that it will be responsible for all costs and expenses associated with any Pre-Acquisition Reorganization to be carried out at its request and shall indemnify and save harmless the Company and its subsidiaries and their respective Representatives from and against any and all liabilities, losses, damages, claims, costs, expenses, interest awards, judgments and penalties suffered or incurred by any of them in connection with or as a result of any such Pre-Acquisition Reorganization (including in respect of any reversal, modification or termination of a Pre-Acquisition Reorganization) and that any Pre-Acquisition Reorganization will not be considered in determining whether a representation or warranty of the Company under this Agreement has been breached (including where any such Pre-Acquisition Reorganization requires the consent of any third party under a Contract). If the Offer is not completed, the Purchaser shall reimburse the Company forthwith for all fees and expenses (including any reasonable professional fees and expenses and taxes) incurred by the Company in considering or effecting all or any part of the Pre-Acquisition Reorganization and shall be responsible for any fees, expenses and costs (including reasonable professional fees and expenses and taxes) of the Company in reversing or unwinding any Pre-Acquisition Reorganization that was effected prior to the Expiry Time.
Appears in 1 contract
Reorganization. (a) The Company shall effect such reorganization Consummation, after approval by stockholders of its business, operations, subsidiaries and assets or such other transactions (each, a “Pre-Acquisition Reorganization”) as the Purchaser may reasonably request prior to the Expiry Time; provided, however, that the Company need not effect a Pre-Acquisition Reorganization which would impede or materially delay the take-up of Exeter Shares and the consummation of the Contemplated Transactions or that would be prejudicial to the Company, of a merger, consolidation or reorganization involving the Company, unless:
i. The stockholders of the Company, immediately before such merger, consolidation or reorganization, own, directly or indirectly immediately following such merger, consolidation or reorganization, at least seventy-five (75%) of the combined voting power of the outstanding Voting Securities of the company resulting from such merger or consolidation or reorganization or its subsidiaries parent corporation (the “Surviving Company”) in substantially the same proportion as their ownership of the Voting Securities immediately before such merger, consolidation or reorganization; and
ii. No Person [other than the Exeter Securityholders Company, any Control Subsidiary, any employee benefit plan (or that would involve any trust forming a material part thereof) maintained by the Company, the Surviving Company or any Control Subsidiary, or any Person who, immediately prior to such merger, consolidation or reorganization, had Beneficial Ownership of twenty percent (20%) or more of the then outstanding Voting Securities] has Beneficial Ownership of twenty percent (20%) or more of the combined voting power of the Surviving Company’s then outstanding Voting Securities. Notwithstanding the foregoing, the First Trigger shall not be deemed to be satisfied solely because any Person (the “Subject Person”) acquired Beneficial Ownership of more than the permitted amount of the time and attention of the Company’s officers or employees.
(b) Without limiting the foregoing and other than as set forth in clause (a) above, the Company shall use its best efforts to obtain all necessary consents, approvals or waivers from any persons to effect each Pre-Acquisition Reorganization, and the Company shall cooperate with the Purchaser in structuring, planning and implementing any such Pre-Acquisition Reorganization. The Purchaser shall provide written notice to the Company of any proposed Pre-Acquisition Reorganization at least ten Business Days prior to the Expiry Time. In addition:
(i) any Pre-Acquisition Reorganization shall not unreasonably interfere with the Company’s material operations prior to the Effective Time and shall not become effective until the Purchaser shall have waived or confirmed in writing the satisfaction of all conditions in its favour in the Offer and in this Agreement and shall have confirmed in writing that it is prepared to promptly, and without condition, proceed to effect the acquisition of the Exeter Shares;
(ii) any Pre-Acquisition Reorganization shall not require the Company to contravene any applicable Laws, its organizational documents or any Material Contract; and
(iii) the Company shall not be obligated to take any action that could result in any Taxes being imposed on, or any adverse Tax or other consequences to, any Exeter Securityholder incrementally greater than the Taxes or other consequences to such party in connection with the take-up of Exeter Shares and the consummation of the Offer in the absence of any Pre-Acquisition Reorganization.
(c) The Purchaser acknowledges and agrees that the planning for and implementation of any Pre-Acquisition Reorganization shall not be considered a breach of any covenant under this Agreement and shall not be considered in determining whether a representation or warranty of the Company hereunder has been breached. The Purchaser and the Company shall work cooperatively and use commercially reasonable efforts to prepare prior to the Expiry Time all documentation necessary and do such other acts and things as are necessary to give effect to such Pre-Acquisition Reorganization. For greater certainty, the Company shall not be liable for the failure of the Purchaser to benefit from any anticipated Tax efficiency outstanding Voting Securities as a result of a Pre-Acquisition Reorganization.
(d) The Purchaser agrees that it will be responsible for all costs and expenses associated with any Pre-Acquisition Reorganization to be carried out at its request and shall indemnify and save harmless the acquisition of Voting Securities by the Company and its subsidiaries and their respective Representatives from and against any and all liabilitieswhich, lossesby reducing the number of Voting Securities outstanding, damagesincreased the proportional number of shares Beneficially Owned by the Subject Person, claims, costs, expenses, interest awards, judgments and penalties suffered or incurred by any provided that if a Change in Control would occur (but for the operation of them in connection with or this sentence) as a result of any the acquisition of Voting Securities by the Company, and after such Pre-Acquisition Reorganization (including in respect share acquisition by the Company, the Subject Person becomes the Beneficial Owner of any reversal, modification or termination of a Pre-Acquisition Reorganization) and that any Pre-Acquisition Reorganization will not be considered in determining whether a representation or warranty additional Voting Securities which increases the percentage of the Company under this Agreement has been breached (including where any such Pre-Acquisition Reorganization requires the consent of any third party under a Contract). If the Offer is not completed, the Purchaser shall reimburse the Company forthwith for all fees and expenses (including any reasonable professional fees and expenses and taxes) incurred then outstanding Voting Securities Beneficially Owned by the Company Subject Person, then a Change in considering or effecting all or any part of the Pre-Acquisition Reorganization and Control shall be responsible for any fees, expenses and costs (including reasonable professional fees and expenses and taxes) of the Company in reversing or unwinding any Pre-Acquisition Reorganization that was effected prior to the Expiry Timeoccur.
Appears in 1 contract
Reorganization. (a) The Company Parties shall cooperate in completing the Reorganization so that it has effect such reorganization for purposes of its business, operations, subsidiaries and assets or such other transactions (each, a “Pre-Acquisition Reorganization”) as the Purchaser may reasonably request Tax Act prior to the Expiry TimeTime of Closing and prior to the time control of the Corporation is acquired by the Purchaser (within the meaning of the Tax Act) in a manner that is mutually satisfactory to the Vendor and the Purchaser, acting reasonably. Prior to Closing, the Parties shall use commercially reasonable efforts to implement the Reorganization in a manner that permits the Purchaser to obtain the intended tax benefit from the Reorganization and related post-Closing transactions, minimizes the potential of adverse tax consequences to either Party, minimizes potential incurrence or imposition of cost, expense or Taxes as a result of the Reorganization, minimizes pre-Closing operational disruptions of the Corporate Group and otherwise reduces any negative effect of the Reorganization on Hunting, the Vendor and the Corporate Group (including, without limitation, the payment of dividends by any of the Corporate Group to Hunting prior to Closing) (collectively, the “Reorganization Objectives”). If either Party proposes a potential modification to the Reorganization, the other Party shall consider such proposed modification in good faith, and such proposed modification shall be implemented if consented to in writing by the other Party (which consent shall not be unreasonably withheld, conditioned or delayed); provided, however, that either Party may withhold its consent to any proposed modification if such proposed modification materially affects the Company need not effect obtaining or time of obtaining any Regulatory Approval in a Pre-Acquisition Reorganization manner which would impede cause the Closing Date to be delayed beyond October 1, 2008 or results in any materially delay adverse economic or legal consequences to such Party (it being understood that, (A) in the take-up of Exeter Shares and the consummation case of the Contemplated Transactions or that would Purchaser, any such proposed modification will be prejudicial considered to the Company, its subsidiaries or the Exeter Securityholders or that would involve have a material amount of the time and attention of the Company’s officers or employees.
(b) Without limiting the foregoing and other than as set forth in clause (a) above, the Company shall use its best efforts materially adverse economic consequence to obtain all necessary consents, approvals or waivers from any persons to effect each Pre-Acquisition Reorganization, and the Company shall cooperate with the Purchaser in structuring, planning and implementing any the event that such Pre-Acquisition Reorganization. The Purchaser shall provide written notice proposed modification would be reasonably likely to the Company of any proposed Pre-Acquisition Reorganization at least ten Business Days prior to the Expiry Time. In addition:
(i) any Pre-Acquisition Reorganization shall not unreasonably interfere with impede the Company’s material operations prior to the Effective Time and shall not become effective until ability of the Purchaser shall have waived or confirmed in writing the satisfaction of all conditions in its favour in the Offer and in this Agreement and shall have confirmed in writing that it is prepared to promptly, and without condition, proceed to effect the acquisition complete any portion of the Exeter Shares;
debt financing described in Section 7.11, (ii) result in an increase in the cost to the Purchaser or the Corporate Group of any Pre-Acquisition Reorganization shall not require the Company to contravene portion of such debt financing or result in any applicable Laws, its organizational documents change of any material term of any portion of such debt financing or any Material Contract; and
(iii) the Company shall not be obligated to take any action that could result in any Taxes being imposed onadverse tax consequences to the Purchaser or the Corporate Group, and (B) in the case of the Vendor, the Corporate Group or any adverse Tax or other consequences toHunting, any Exeter Securityholder incrementally greater than the Taxes or other consequences to such party in connection with the take-up of Exeter Shares and the consummation of the Offer in the absence of any Pre-Acquisition Reorganization.
(c) The Purchaser acknowledges and agrees that the planning for and implementation of any Pre-Acquisition Reorganization proposed modification shall not be considered a breach to have an adverse economic or legal consequence to the Corporate Group if such adverse economic or legal consequence would occur only following the Closing or if, subject to Section 10.4(d), such economic or legal consequence is indemnified or subject to reimbursement by the Purchaser). If any modification to the Reorganization proposed by either Party pursuant to this Section 7.14 is consented to by the other Party as contemplated, the term “Reorganization” as used herein shall be deemed to refer to the Reorganization as so modified by such proposed modification. Notwithstanding anything to the contrary herein, the implementation of any covenant under this Agreement and the Reorganization shall not (i) be considered in determining whether a representation representation, warranty or warranty covenant of the Company Vendor or Hunting hereunder has been breached. breached (other than the covenants set forth in this Section 7.14), (ii) be consummated or effective (in whole or in part) unless (A) such implementation can be reversed or unwound without imposing economic harm on the Vendor, the Corporate Group or Hunting or (B) the Purchaser, subject to Section 10.4(d), indemnifies the Vendor for the economic harm to the Vendor resulting from such implementation where the Closing does not occur, or (iii) require Hunting, the Vendor or the Corporate Group to take any action under this Section 7.14 that would reasonably be expected to cause, individually or in the aggregate, any of them to suffer economic harm or materially and adversely affect the Businesses unless the Purchaser, subject to Section 10.4(d), indemnifies the Vendor for such harm.
(b) The Purchaser Parties acknowledge and agree that the initial Reorganization structure as envisaged in Schedule 1.1 — Part 4A is being reviewed technically by each of the Vendor and the Company Purchaser as at Execution. Between Execution and Closing, the Vendor and the Purchaser shall work cooperatively together, each acting reasonably and use commercially reasonable efforts in good faith, so as to prepare prior modify and simplify the structure to reflect, to the Expiry Time all documentation necessary and do such other acts and things as are necessary to give effect to such Pre-Acquisition Reorganization. For greater certaintyextent reasonably practical, the Company shall structure contained in Schedule 1.1 — Part 4B while concurrently achieving the Reorganization Objectives.
(c) Subject to Section 10.4(d) and whether or not be liable Closing occurs (i) the Purchaser shall, promptly upon request by Hunting or the Vendor, reimburse the Vendor, the Corporate Group and Hunting for all reasonable out-of-pocket expenses incurred by the failure Vendor or the Corporate Group in connection with the review or implementation of actions taken, directly or indirectly, at the request of the Purchaser to benefit from any anticipated Tax efficiency as a result of a Pre-Acquisition Reorganization.
(d) The Purchaser agrees that it will be responsible for all costs and expenses associated with any Pre-Acquisition Reorganization to be carried out at its request and shall indemnify and save harmless implement or effect the Company and its subsidiaries and their respective Representatives from and against any and all liabilities, losses, damages, claims, costs, expenses, interest awards, judgments and penalties suffered or incurred by any of them in connection with or as a result of any such Pre-Acquisition Reorganization (including in respect of any reversal, modification or termination of a Pre-Acquisition Reorganizationit being understood that such expenses shall not include internal cost allocations) and that any Pre-Acquisition Reorganization will not be considered (ii) in determining whether a representation or warranty of the Company under this Agreement has been breached (including where any such Pre-Acquisition Reorganization requires event the consent of any third party under a Contract). If the Offer Purchase is not completedconsummated, the Purchaser shall reimburse the Company forthwith for all fees and expenses (including any reasonable professional fees and expenses and taxes) incurred by the Company in considering or effecting all or any part of the Pre-Acquisition Reorganization and shall be responsible for any feesexpenses of Hunting, expenses the Vendor and costs (including reasonable professional fees and expenses and taxes) of the Company Corporate Group in reversing or unwinding any Pre-Acquisition the Reorganization that was effected prior to at the Expiry Timerequest of the Purchaser.
Appears in 1 contract
Samples: Sale and Purchase Agreement (Johnstone Tank Trucking Ltd.)
Reorganization. At or prior to the Closing, Seller and Seller Parent shall take, or shall cause the Company or its Subsidiaries to take, each of the following actions (collectively, the "Reorganization"):
(a) The Company (or its applicable Subsidiaries) shall effect such reorganization dividend and transfer to Seller (or its designee) all of its business, operations, subsidiaries and assets or such other transactions (each, a “Pre-Acquisition Reorganization”) as the Purchaser may reasonably request prior to outstanding shares of capital stock of the Expiry Time; provided, however, that Excluded Subsidiaries then owned by the Company need not effect a Pre-Acquisition Reorganization which would impede (or materially delay the take-up of Exeter Shares and the consummation of the Contemplated Transactions or that would be prejudicial to the Company, its subsidiaries or the Exeter Securityholders or that would involve a material amount of the time and attention of the Company’s officers or employeesapplicable Subsidiaries).
(b) Without limiting the foregoing Seller and its affiliates (other than the Subject Companies), on the one hand, and each of the Subject Companies, on the other hand, shall cancel and terminate (for no consideration) all indebtedness between them other than any amounts owed under the Tax Sharing Agreement dated as set forth in clause (a) aboveof August 31, 1999 among Seller Parent, the Company shall use its best efforts to obtain Subject Companies and others (the "Tax Sharing Agreement") for all necessary consents, approvals or waivers from any persons to effect each Pre-Acquisition Reorganization, and the Company shall cooperate with the Purchaser in structuring, planning and implementing any such Pre-Acquisition Reorganization. The Purchaser shall provide written notice to the Company of any proposed Pre-Acquisition Reorganization at least ten Business Days taxable years ending prior to the Expiry Time. In addition:
(i) any Pre-Acquisition Reorganization shall not unreasonably interfere with Closing Date and for the Company’s material operations prior taxable year including the Closing Date, calculated as if the year ended on the Closing Date and as if the Tax Sharing Agreement applied to the Effective Time year so ended, excluding any gain or loss related to the transactions contemplated by this Agreement. Such cancellation and termination shall not become effective until be deemed a capital contribution by Seller to the Purchaser shall have waived or confirmed in writing the satisfaction of all conditions in its favour applicable Subject Company in the Offer and in this Agreement and shall have confirmed in writing that it is prepared to promptly, and without condition, proceed to effect the acquisition amount of the Exeter Shares;
(ii) any Pre-Acquisition Reorganization shall not require the Company to contravene any applicable Laws, its organizational documents or any Material Contract; and
(iii) the Company shall not be obligated to take any action that could result in any Taxes being imposed on, or any adverse Tax or other consequences to, any Exeter Securityholder incrementally greater than the Taxes or other consequences to such party in connection with the take-up of Exeter Shares and the consummation of the Offer in the absence of any Pre-Acquisition Reorganizationcanceled indebtedness.
(c) The Purchaser acknowledges and agrees that Seller shall provide or cause the planning Company to be provided with sufficient funds for and implementation of any Pre-Acquisition Reorganization shall not be considered a breach of any covenant under this Agreement the Subject Companies to repay, and shall not be considered in determining whether a representation or warranty of cause the Subject Companies to repay, all Company hereunder has been breached. The Purchaser and the Company shall work cooperatively and use commercially reasonable efforts to prepare Specified Debt outstanding immediately prior to the Expiry Time all documentation necessary and do Closing (other than intercompany indebtedness canceled or terminated pursuant to Section 6.7(b)). The funds received by the Subject Companies pursuant to the foregoing sentence shall be deemed a capital contribution by Seller to the applicable Subject Company in the amount of such other acts and things as are necessary to give effect to such Pre-Acquisition Reorganization. For greater certainty, the Company shall not be liable for the failure of the Purchaser to benefit from any anticipated Tax efficiency as a result of a Pre-Acquisition Reorganizationfunds.
(d) The Purchaser agrees that it will be responsible for all costs and expenses associated with any Pre-Acquisition Reorganization Seller shall cause the Company Credit Agreement to be carried out terminated or, at its request Seller's sole discretion, amended to provide that no Subject Company shall have any rights or obligations with respect thereto, effective as of the Closing.
(e) Prior to the Closing, Seller Parent and Seller shall indemnify cause the Subject Companies and save harmless FG (with respect to the FG Transferred Assets only) to run through the Lexis-Nexis Banko Database (the "Banko Database") all of their respective Xxxxivables related xx x personal loan (unless a Subject Company or FG has a security interest with respect to such loan in the obligor's automobile) or a sales finance loan, on which payments to be made by the obligor under such loans are thirty days or more past due (collectively, the "Past Due Receivables"). Prior to the Closing, Seller Parent and Seller shall cause the Subject Companies and FG (with respect to the FG Transferred Assets only) to charge-off each such Past Due Receivable if the obligor under such Past Due Receivable is identified as bankrupt in the Banko Database (such charged-off Past Due Receivables being cxxxxxtively referred to herein as the "Charged-Off Receivables").
(f) Prior to the Closing, Seller shall cause the Company's provision for loan losses to be maintained consistent with past practice and in no event shall the Company's aggregate reserve for loan losses, as of the Closing, be less than the corresponding amount on the Company's balance sheet as of September 30, 2003 contained in the Company and its subsidiaries and their respective Representatives from and against any and all liabilities, losses, damages, claims, costs, expenses, interest awards, judgments and penalties suffered or incurred by any of them in connection with or as a result of any such Pre-Acquisition Reorganization (including in respect of any reversal, modification or termination of a Pre-Acquisition Reorganization) and that any Pre-Acquisition Reorganization will not be considered in determining whether a representation or warranty of the Company under this Agreement has been breached (including where any such Pre-Acquisition Reorganization requires the consent of any third party under a Contract). If the Offer is not completed, the Purchaser shall reimburse the Company forthwith for all fees and expenses (including any reasonable professional fees and expenses and taxes) incurred by the Company in considering or effecting all or any part of the Pre-Acquisition Reorganization and shall be responsible for any fees, expenses and costs (including reasonable professional fees and expenses and taxes) of the Company in reversing or unwinding any Pre-Acquisition Reorganization that was effected Reports filed prior to the Expiry Timedate hereof.
(g) Seller shall cause (i) all accrued but unused vacation time to which any employee of the Subject Companies and any employee of FG in the FG Transferred Business is entitled pursuant to the Vacation Policy, (ii) the Variable Plan Payments, (iii) all other bonus, incentive and performance compensation payments or awards under the Benefit Plans with respect to employees of the Subject Companies and employees of FG in the FG Transferred Business and (iv) all operational liabilities of the Subject Companies and the FG Transferred Business to be fully accrued on the Company's books and records as of the Closing.
Appears in 1 contract
Samples: Stock and Asset Purchase Agreement (Washington Mutual Finance Corp)
Reorganization. (a) The Company Subject to Section 2.15(d), Newmarket shall use its commercially reasonable efforts to effect such reorganization of its business, operations, subsidiaries and assets or such other transactions (each, a “Pre-Acquisition Reorganization”) as the Purchaser Company may reasonably request prior to the Expiry TimeEffective Date, and the Plan of Arrangement, if required, shall be modified accordingly; provided, however, that the Company Newmarket need not effect a Pre-Acquisition Reorganization which would (i) impede or materially delay the take-up of Exeter Shares and the consummation of the Contemplated Transactions Arrangement or that (ii) would be prejudicial require Newmarket to obtain the Company, its subsidiaries or the Exeter Securityholders or that would involve a material amount prior approval of the time and attention Newmarket Shareholders in respect of such Pre-Acquisition Reorganization other than at the Company’s officers or employees.
(b) Without Newmarket Meeting without limiting the foregoing and other than as set forth in clause (a) aboveforegoing, the Company Newmarket shall use its best commercially reasonable efforts to obtain all necessary consents, approvals or waivers from any persons to effect each Pre-Acquisition Reorganization, and the Company Newmarket shall cooperate with the Purchaser Company in structuring, planning and implementing any such Pre-Acquisition Reorganization. The Purchaser Company shall provide written notice to the Company Newmarket of any proposed Pre-Acquisition Reorganization at least ten (10) Business Days prior to the Expiry Time. In additiondate of the Newmarket Meeting.
(b) Newmarket will not be obligated to participate in any Pre-Acquisition Reorganization under Section 2.16(a) unless such Pre-Acquisition Reorganization:
(i) can be completed immediately prior to or on the Effective Date and can be unwound in the event the Arrangement is not consummated without adversely affecting Newmarket in any Pre-Acquisition Reorganization shall manner;
(ii) is not prejudicial to Newmarket, any of its officers or directors, or the Newmarket Shareholders (as a whole), in any material respect;
(iii) does not require any director or officer of Newmarket to assume any personal liability;
(iv) does not unreasonably interfere with the Companyin Newmarket’s material operations prior to the Effective Time and shall not become effective until the Purchaser shall have waived or confirmed in writing the satisfaction of all conditions in its favour in the Offer and in this Agreement and shall have confirmed in writing that it is prepared to promptly, and without condition, proceed to effect the acquisition of the Exeter SharesTime;
(iiv) any Pre-Acquisition Reorganization shall does not require the Company Newmarket to contravene any applicable Laws, its organizational documents or any Newmarket Material Contract; and
(iiivi) the Company shall does not be obligated require Newmarket to take any action that could result in any Taxes being imposed on, or any adverse Tax or other consequences to, any Exeter Securityholder Newmarket Shareholder incrementally greater than the Taxes or other consequences to such party in connection with the take-up of Exeter Shares and the consummation of the Offer Arrangement in the absence of any Pre-Acquisition Reorganization.
(c) The Purchaser Company agrees that it will be responsible for all costs and expenses associated with any Pre-Acquisition Reorganization, and any corporate actions contemplated by Section 2.16(a), to be carried out at its request, including any structuring and unwinding costs (including any Tax costs) reasonably incurred in connection with any proposed or completed Pre-Acquisition Reorganization in the event the Arrangement is not consummated and shall indemnify Newmarket for any adverse circumstances resulting from any Pre-Acquisition Reorganization.
(d) The Company acknowledges and agrees that the planning for and implementation of any Pre-Pre- Acquisition Reorganization shall not be considered a breach of any covenant under this Agreement and shall not be considered in determining whether a representation or warranty of the Company Newmarket hereunder has been breached. The Purchaser Company and the Company Newmarket shall work cooperatively and use commercially reasonable commercial efforts to prepare prior to the Expiry Effective Time all documentation necessary and do such other acts and things as are necessary to give effect to such Pre-Acquisition ReorganizationReorganization and shall seek to have any such Pre-Acquisition Reorganization made effective (i) as of the last moment of the Business Day ending immediately prior to the Effective Date, (ii) on the Effective Date (as part of the Plan of Arrangement or otherwise) or (iii) as the Parties may otherwise agree in writing. For greater certainty, the Company Newmarket shall not be liable for the failure of the Purchaser Company to benefit from any anticipated Tax efficiency as a result of a Pre-Acquisition Reorganization.
(d) The Purchaser agrees that it will be responsible for all costs and expenses associated with any Pre-Acquisition Reorganization to be carried out at its request and shall indemnify and save harmless the Company and its subsidiaries and their respective Representatives from and against any and all liabilities, losses, damages, claims, costs, expenses, interest awards, judgments and penalties suffered or incurred by any of them in connection with or as a result of any such Pre-Acquisition Reorganization (including in respect of any reversal, modification or termination of a Pre-Acquisition Reorganization) and that any Pre-Acquisition Reorganization will not be considered in determining whether a representation or warranty of the Company under this Agreement has been breached (including where any such Pre-Acquisition Reorganization requires the consent of any third party under a Contract). If the Offer is not completed, the Purchaser shall reimburse the Company forthwith for all fees and expenses (including any reasonable professional fees and expenses and taxes) incurred by the Company in considering or effecting all or any part of the Pre-Acquisition Reorganization and shall be responsible for any fees, expenses and costs (including reasonable professional fees and expenses and taxes) of the Company in reversing or unwinding any Pre-Acquisition Reorganization that was effected prior to the Expiry Time.
Appears in 1 contract
Reorganization. (a) The Company shall effect such reorganization of its business, operations, subsidiaries As promptly as practicable after the date hereof and assets or such other transactions (each, a “Pre-Acquisition Reorganization”) as the Purchaser may reasonably request in any case prior to the Expiry Time; providedInitial Closing, howeverthe Seller shall, that and shall cause each member of the Company need not effect a Pre-Acquisition Reorganization which would impede or materially delay Seller Group to, solely at expense of the take-up of Exeter Shares Seller and the consummation Seller Group, take all such actions as are necessary in order for the Target Group to, prior to the Initial Closing, be able to operate the Business (i) in compliance with applicable Law, (ii) as conducted as of the Contemplated Transactions or that would be prejudicial date hereof (except for (x) any personnel changes in connection with Article VIII of this Agreement, (y) any steps effected pursuant to the CompanyReorganization Plan, its subsidiaries or and (z) as otherwise contemplated by the Exeter Securityholders or that would involve a material amount Transaction Documents, and taking into account the restrictions on the conduct of the time Business in the ordinary course of business pursuant to Section 7.02), and attention of (iii) independently on a standalone basis (except for any transition services or similar services contemplated by the Company’s officers or employeesTransaction Documents).
(b) Without In furtherance of and without limiting the foregoing generality of Section 7.01(a), as promptly as practicable after the date hereof and other than as set forth in clause (a) above, the Company shall use its best efforts to obtain all necessary consents, approvals or waivers from any persons to effect each Pre-Acquisition Reorganization, and the Company shall cooperate with the Purchaser in structuring, planning and implementing any such Pre-Acquisition Reorganization. The Purchaser shall provide written notice to the Company of any proposed Pre-Acquisition Reorganization at least ten Business Days case prior to the Expiry Time. In addition:
Initial Closing, the Seller shall, and shall cause all each applicable member of the Seller Group to consummate all steps of the Reorganization (i) except for any Pre-Acquisition Reorganization shall steps that are specified not unreasonably interfere with the Company’s material operations to be required to be completed at or prior to the Effective Time and shall not become effective until the Purchaser shall have waived or confirmed Initial Closing) in writing the satisfaction of all conditions in its favour in the Offer and in this Agreement and shall have confirmed in writing that it is prepared to promptly, and without condition, proceed to effect the acquisition of the Exeter Shares;
(ii) any Pre-Acquisition Reorganization shall not require the Company to contravene any applicable Laws, its organizational documents or any Material Contract; and
(iii) the Company shall not be obligated to take any action that could result in any Taxes being imposed on, or any adverse Tax or other consequences to, any Exeter Securityholder incrementally greater than the Taxes or other consequences to such party in connection accordance with the take-up of Exeter Shares Reorganization Plan, the Transaction Documents and the consummation of the Offer in the absence of any Pre-Acquisition Reorganizationapplicable Law.
(c) The Purchaser acknowledges In furtherance of Section 7.01(a) and agrees that the planning for and implementation of any Pre-Acquisition Reorganization shall not be considered a breach of any covenant under this Agreement and shall not be considered in determining whether a representation or warranty of the Company hereunder has been breached. The Purchaser and the Company shall work cooperatively and use commercially reasonable efforts to prepare Section 7.01(b), if, prior to the Expiry Time all documentation necessary and do such other acts and things as are necessary to give effect to such Pre-Acquisition Reorganization. For greater certaintyInitial Closing, the Company Seller becomes aware that the Reorganization Plan shall not be liable for the failure updated in order to make its representation and warranties in Section 5.11 correct as of the Purchaser to benefit from any anticipated Tax efficiency as a result of a Pre-Acquisition ReorganizationInitial Closing, the Seller shall promptly notify the Purchaser, and upon the Purchaser’s written consent, update the Reorganization Plan accordingly.
(d) The Purchaser agrees With respect to certain steps in the Reorganization Plan that it will be responsible for all costs and expenses associated with any Pre-Acquisition Reorganization are specified not to be carried out completed at its request or prior to the Initial Closing and are actually not completed prior to the Initial Closing, Seller shall indemnify continue to complete such steps as soon as practicable after the Initial Closing in compliance with the Reorganization Plan.
(e) Notwithstanding anything herein, any Transfer Taxes and save harmless the Company stamp duty that are, or become, due and its subsidiaries and their respective Representatives from and against any and all liabilities, losses, damages, claims, costs, expenses, interest awards, judgments and penalties suffered or incurred by any of them in connection with or payable as a result of any such Pre-Acquisition the Reorganization (including in respect of any reversal, modification or termination of a Pre-Acquisition Reorganization) and that any Pre-Acquisition Reorganization will not shall be considered in determining whether a representation or warranty of the Company under this Agreement has been breached (including where any such Pre-Acquisition Reorganization requires the consent of any third party under a Contract). If the Offer is not completed, the Purchaser shall reimburse the Company forthwith for all fees and expenses (including any reasonable professional fees and expenses and taxes) incurred borne entirely by the Company in considering Seller or effecting all or any part of the Pre-Acquisition Reorganization and shall be responsible for any fees, expenses and costs (including reasonable professional fees and expenses and taxes) of the Company in reversing or unwinding any Pre-Acquisition Reorganization that was effected prior to the Expiry TimeRetained Entities.
Appears in 1 contract
Reorganization. (a) The Company Reorganization as set forth in Exhibit A shall effect such reorganization (alone or in connection with any other transaction): (i) be carried out As Agreed; (ii) not result in the incurrence of its business, operations, subsidiaries and assets any cost or such other transactions (each, a “Pre-Acquisition Reorganization”) as the Purchaser may reasonably request prior Liability to the Expiry Time; providedCompanies that is not paid for or reimbursed by Seller, however, that the Company need not effect a Pre-Acquisition Reorganization which would impede or materially delay the take-up of Exeter Shares and the consummation other than Liabilities existing as of the Contemplated Transactions date of such Reorganization that are to be assumed by the Companies in accordance with the terms and conditions of this Agreement; (iii) not result in the giving of any warranties or indemnification by the Companies or the Companies’ Subsidiaries; (iv) not violate any Law (including as a result of not obtaining any required permit) or require any Permit that could not reasonably be expected to be received by the Closing; (v) not result in the transfer of any employee of the Companies that was an employee of the Companies as of the date hereof; (vi) not violate any anti-assignment or change in control provision in any Contract that would reasonably be prejudicial expected to result in a Material Adverse Effect with respect to the CompanyCompanies; (vii) not result in any Person, its subsidiaries or other than Seller, owning the Exeter Securityholders or that would involve a material amount capital stock of the time Companies or a Companies’ Subsidiary; (viii) not result in any change in any tax or accounting methodology or election with respect to the Companies; or (ix) not otherwise materially and attention adversely impact the operation of the Company’s officers or employeesBusiness after giving effect to the Closing.
(b) Without limiting Except as provided in Section 7.1(r) (Employee Matters), Purchaser and Seller agree that during the foregoing period between the date hereof and Closing, they shall evaluate whether there are any of the employees of Seller or any Affiliate of Seller (other than any Company or Company Subsidiary) who are not Affected Employees but whose primary employment duties concern servicing, maintaining or supporting the Business as set forth conducted on the date hereof. To effectuate such evaluation, within thirty (30) days following the date of this Agreement, Seller shall provide Purchaser with a list of the employees described in clause (a) above, the Company shall use its best efforts to obtain all necessary consents, approvals or waivers from any persons to effect each Pre-Acquisition Reorganization, preceding sentence. If Purchaser and the Company shall cooperate with the Purchaser in structuring, planning and implementing Seller mutually agree that any such Pre-Acquisition Reorganization. The employee will be an Affected Employee, then, effective as of the Closing Date, Purchaser shall provide written notice offer employment to the Company of any proposed Pre-Acquisition Reorganization at least ten Business Days prior such individual (if such individual is still employed by Seller and its Affiliates) and such individual shall be deemed to the Expiry Timebe an Affected Employee. In addition:
(i) any Pre-Acquisition Reorganization shall not unreasonably interfere with the Company’s material operations prior to the Effective Time and shall not become effective until the Purchaser shall have waived no liability related to the resignation or confirmed in writing the satisfaction termination of all conditions in its favour in the Offer and in employment (including for severance benefits, if applicable) of any such employee to whom an offer of employment is made, or is not made, pursuant to this Agreement and shall have confirmed in writing that it is prepared to promptlySection 6.8(b), and without condition, proceed to effect the acquisition of the Exeter Shares;
(ii) any Pre-Acquisition Reorganization shall not require the Company to contravene any applicable Laws, its organizational documents or any Material Contract; and
(iii) the Company shall not be obligated to take any action that could result in any Taxes being imposed on, or any adverse Tax or other consequences to, any Exeter Securityholder incrementally greater than the Taxes or other consequences to such party in connection with the take-up of Exeter Shares and the consummation of the Offer in the absence of any Pre-Acquisition Reorganization.
(c) The Purchaser acknowledges and agrees that the planning for and implementation of any Pre-Acquisition Reorganization shall not be considered a breach of any covenant under this Agreement and shall not be considered in determining whether a representation or warranty of the Company hereunder has been breached. The Purchaser and the Company shall work cooperatively and use commercially reasonable efforts to prepare prior to the Expiry Time all documentation necessary and do such other acts and things as are necessary to give effect to such Pre-Acquisition Reorganization. For greater certainty, the Company shall not be liable for the failure of the Purchaser to benefit from any anticipated Tax efficiency as a result of a Pre-Acquisition Reorganization.
(d) The Purchaser agrees that it will be responsible for all costs and expenses associated with any Pre-Acquisition Reorganization to be carried out at its request and Seller shall indemnify and save hold harmless Purchaser, the Company Companies and its subsidiaries and their respective Representatives the Companies’ Subsidiaries from and against any and all liabilities, losses, damages, claims, costs, expenses, interest awards, judgments and penalties suffered or incurred by any of them in connection with or as a result of any such Pre-Acquisition Reorganization (including liability in respect of any reversal, modification or termination of a Pre-Acquisition Reorganization) and that any Pre-Acquisition Reorganization will not be considered in determining whether a representation or warranty of the Company under this Agreement has been breached (including where any such Pre-Acquisition Reorganization requires the consent of any third party under a Contract). If the Offer is not completed, the Purchaser shall reimburse the Company forthwith for all fees and expenses (including any reasonable professional fees and expenses and taxes) incurred by the Company in considering or effecting all or any part of the Pre-Acquisition Reorganization and shall be responsible for any fees, expenses and costs (including reasonable professional fees and expenses and taxes) of the Company in reversing or unwinding any Pre-Acquisition Reorganization that was effected prior to the Expiry Timethereof.
Appears in 1 contract
Reorganization. (a) The Meritas Parties and OldCo, at their sole expense, shall take, or cause to be taken, all actions and do promptly or cause to be done promptly, all things necessary, proper or advisable to effect the Reorganization in accordance with the steps set forth on Exhibit A, including by executing and delivering all related agreements, instruments, certificates and all other documents to effect the Reorganization. The Meritas Parties shall consult with the Buyer regarding the manner and status of the implementation of the Reorganization (including to the extent that the Meritas Parties determine that additional actions, if any, need to occur in connection with the Reorganization) (provided, that (i) such additional actions shall require the prior written consent of Buyer if such additional actions would reasonably be expected to have any adverse tax, accounting, financial, or operational impact on any Buyer Party post-Closing and (ii) any such required consent of Buyer may not be unreasonably withheld, conditioned or delayed) and shall provide the Buyer with copies of all material agreements and instruments executed in connection therewith.
(b) No Meritas Party shall be required to enter into any agreement pursuant to this Section 9.7 that is not contingent upon the Closing.
(c) In connection with the Reorganization, the Meritas Parties shall cause (i) all Meritas Employees, other than Excluded Employees, to have been transferred out of OldCo and Meritas Administrative Services, LLC to Meritas or an Included Subsidiary and (ii) all Employee Plans identified on Schedule 9.7(c) to have been transferred to Meritas or an Included Subsidiary; and, in each case, such transfers shall not result in any Liability to Meritas, any Included Subsidiary or any Buyer Party. The Meritas Parties shall keep the Buyer informed about the progress of the transfer of such Meritas Employees and Employee Plans. In particular, the Meritas Parties shall inform the Buyer of any objections against the transfer and any refusal to accept employment with Meritas or one of the Included Subsidiaries.
(d) Without limiting the generality of the provisions of Section 9.7(a) or Exhibit A, prior to the Closing and as part of the Reorganization, OldCo shall, and shall cause Meritas Administrative Services, LLC to, effect all transfers and assignments and take all such actions as are necessary so that as of the Closing any assets, Contracts, rights, Governmental Authorizations, interests or properties to the extent primarily related to the operation of the business of any Meritas Company or any Target Group School (collectively, the “Reorganization Assets”), shall effect such reorganization be transferred to Meritas or, at Buyer’s option, any of its businessthe other Meritas Companies. For the avoidance of doubt, operationsthe Reorganization shall include those actions described in Schedule 9.7(d)-1, subsidiaries and in all events the Reorganization Assets shall exclude those assets set forth on Schedule 9.7(d)-2. If prior to the Closing, OldCo and/or Meritas Administrative Services, LLC are not able to transfer or such other transactions assign any Reorganization Asset as contemplated by this Section 9.7(d) (a “Non-Assignable Reorganization Asset”), whether due to a failure to obtain a Consent, waiver or otherwise (each, a “Pre-Acquisition ReorganizationThird Party Approval”) as the Purchaser may reasonably request prior to the Expiry Time; provided), however, that the Company need not effect a Pre-Acquisition Reorganization which would impede or materially delay the take-up of Exeter Shares then OldCo and the consummation of the Contemplated Transactions or that would be prejudicial to the Company, its subsidiaries or the Exeter Securityholders or that would involve a material amount of the time and attention of the Company’s officers or employees.
(b) Without limiting the foregoing and other than as set forth in clause (a) above, the Company Excluded Subsidiaries shall use its best efforts Reasonable Efforts to promptly obtain all necessary consentssuch Third Party Approval from and after the Closing. Until such Third Party Approval is obtained, approvals or waivers from any persons to effect each Pre-Acquisition Reorganization, and the Company shall cooperate with the Purchaser in structuring, planning and implementing any such Pre-Acquisition Reorganization. The Purchaser shall provide written notice to the Company of any proposed Pre-Acquisition Reorganization at least ten Business Days prior to the Expiry Time. In addition:
extent permissible under Law, (i) OldCo or Meritas Administrative Services, LLC shall continue to perform any Pre-Acquisition obligation under such Reorganization shall not unreasonably interfere with the Company’s material operations prior to the Effective Time and shall not become effective until the Purchaser shall have waived or confirmed in writing the satisfaction of all conditions in its favour in the Offer and in this Agreement and shall have confirmed in writing that it is prepared to promptlyAsset, and without condition, proceed to effect the acquisition of the Exeter Shares;
(ii) OldCo or Meritas Administrative Services, LLC shall hold in trust for the benefit of Buyer and its Affiliates (after the Closing), and shall promptly forward to Buyer, any Pre-Acquisition monies or other benefits received pursuant to such Reorganization shall not require Asset relating to the Company to contravene any applicable Laws, its organizational documents Meritas Companies or any Material Contract; and
the Target Group Schools and (iii) the Parties shall use Reasonable Efforts to institute alternative arrangements intended to put the Parties in a substantially similar economic position as if such Reorganization Asset were transferred. Once the necessary Third Party Approval is obtained, the applicable Reorganization Asset shall be deemed to have been automatically transferred to Buyer or the applicable Meritas Company shall not be obligated to take any action that could result on the terms set forth in any Taxes being imposed onthis Agreement, or any adverse Tax or other consequences to, any Exeter Securityholder incrementally greater than the Taxes or other consequences to such party in connection with the take-up of Exeter Shares and the consummation as of the Offer in the absence of any Pre-Acquisition ReorganizationEffective Time, for no additional consideration.
(c) The Purchaser acknowledges and agrees that the planning for and implementation of any Pre-Acquisition Reorganization shall not be considered a breach of any covenant under this Agreement and shall not be considered in determining whether a representation or warranty of the Company hereunder has been breached. The Purchaser and the Company shall work cooperatively and use commercially reasonable efforts to prepare prior to the Expiry Time all documentation necessary and do such other acts and things as are necessary to give effect to such Pre-Acquisition Reorganization. For greater certainty, the Company shall not be liable for the failure of the Purchaser to benefit from any anticipated Tax efficiency as a result of a Pre-Acquisition Reorganization.
(d) The Purchaser agrees that it will be responsible for all costs and expenses associated with any Pre-Acquisition Reorganization to be carried out at its request and shall indemnify and save harmless the Company and its subsidiaries and their respective Representatives from and against any and all liabilities, losses, damages, claims, costs, expenses, interest awards, judgments and penalties suffered or incurred by any of them in connection with or as a result of any such Pre-Acquisition Reorganization (including in respect of any reversal, modification or termination of a Pre-Acquisition Reorganization) and that any Pre-Acquisition Reorganization will not be considered in determining whether a representation or warranty of the Company under this Agreement has been breached (including where any such Pre-Acquisition Reorganization requires the consent of any third party under a Contract). If the Offer is not completed, the Purchaser shall reimburse the Company forthwith for all fees and expenses (including any reasonable professional fees and expenses and taxes) incurred by the Company in considering or effecting all or any part of the Pre-Acquisition Reorganization and shall be responsible for any fees, expenses and costs (including reasonable professional fees and expenses and taxes) of the Company in reversing or unwinding any Pre-Acquisition Reorganization that was effected prior to the Expiry Time.
Appears in 1 contract
Samples: Transaction Agreement (Nord Anglia Education, Inc.)
Reorganization. (a) The Company shall, and shall effect such cause each of its Subsidiaries to, reasonably cooperate with Purchaser in planning, preparing and effectuating any reorganization of the Company’s or any of its Subsidiaries’ corporate structure, capital structure, business or operations, or transfer of securities, assets or business, operationsin each case, subsidiaries and assets or such other transactions (eachto be completed prior to the Closing, a “Pre-Acquisition Reorganization”) as the Purchaser may reasonably request prior or as may be necessary or appropriate to complete the Expiry Timetransactions contemplated hereby, including amalgamations, liquidations, reorganizations or stock or asset transfers (each a “Reorganization Transaction”), and to use its commercially reasonable efforts to implement any such Reorganization Transaction as Purchaser may reasonably request; provided, however, that the Company need not effect a Pre-Acquisition Reorganization which would impede or materially delay the take-up of Exeter Shares and the consummation of the Contemplated Transactions or that would be prejudicial to the Company, its subsidiaries or the Exeter Securityholders or that would involve a material amount of the time and attention of the Company’s officers or employees.
(b) Without limiting the foregoing and other than as set forth in clause (a) above, the Company shall use its best efforts to obtain all necessary consents, approvals or waivers from any persons to effect each Pre-Acquisition Reorganization, and the Company shall cooperate with the Purchaser in structuring, planning and implementing any such Pre-Acquisition Reorganization. The Purchaser shall provide written notice to the Company of any proposed Pre-Acquisition Reorganization at least ten Business Days prior to the Expiry Time. In addition:
(i) any Pre-Acquisition such Reorganization shall Transaction does not unreasonably interfere with the Company’s material ongoing operations prior to the Effective Time and shall not become effective until the Purchaser shall have waived or confirmed in writing the satisfaction of all conditions in its favour in the Offer and in this Agreement and shall have confirmed in writing that it is prepared to promptly, and without condition, proceed to effect the acquisition of the Exeter Shares;
Company and its Subsidiaries, (ii) any Pre-Acquisition such Reorganization shall not require Transaction is not, in the opinion of the Company, acting reasonably, prejudicial to the holders of Company Securities, the Company to contravene any applicable Laws, its organizational documents or any Material Contract; and
(iii) the Company shall of its Subsidiaries and does not be obligated to take any action that could result in any Taxes being imposed on, or any adverse Tax or other consequences to, any Exeter Securityholder holder of Company Securities incrementally greater than the Taxes or other consequences to such party holders in connection with the take-up completion of Exeter Shares the Arrangement in the absence of action being taken pursuant to this Section 6.13, (iii) such Reorganization Transaction shall not impede or delay, or prevent, the receipt of the Regulatory Approvals, the satisfaction of any other conditions set forth in Article VII or consummation of the transactions contemplated hereby, (iv) such Reorganization Transaction does not require the Company to obtain the approval of the Company Shareholders (other than is obtained by virtue of the approval of the Arrangement) and does not require the Company or any of its Subsidiaries to obtain any consent of any third party if obtaining such consent would reasonably be expected to impede or delay the consummation of the Offer transactions contemplated hereby, (v) Purchaser shall pay all direct or indirect costs and liabilities, fees, Damages, penalties, except where incurred in connection with the absence matters contemplated by this Agreement, and Taxes that may be incurred by the Company or its Subsidiaries as a consequence of any Pre-Acquisition Reorganization.
(c) The Purchaser acknowledges and agrees that the planning for and implementation of or to unwind any Presuch Reorganization Transaction if the Arrangement is not completed, including actual out-Acquisition of-pocket costs and expenses for filing fees and expenses of external counsel and auditors which may be incurred in connection with such Reorganization Transaction, (vi) no such Reorganization Transaction or any action of the Company or its Subsidiaries requested by Purchaser in connection therewith shall not be considered to constitute a breach of any covenant under this Agreement and shall not be considered in determining whether a representation the representations, warranties, covenants or warranty agreements of the Company hereunder or in determining whether any of the conditions in Section 7.1 or Section 7.2 have been satisfied, (vii) such Reorganization Transaction shall not be contrary to applicable Laws or the organizational documents of the Company or any of its Subsidiaries (excluding wholly-owned Subsidiaries) and would not result in any breach by the Company or any of its Subsidiaries of any Contract or Permit; (viii) such Reorganization Transaction shall not become effective unless Purchaser has been breachedirrevocably waived or confirmed in writing the satisfaction of all conditions in Section 7.1 and Section 7.2 and shall have confirmed in writing that it will, upon completion of the Reorganization Transaction, promptly and without condition or delay proceed to effect the Arrangement and (ix) such Reorganization Transaction is effected as close as reasonably practicable to the Effective Time.
(b) Purchaser shall provide written notice to the Company of any proposed Reorganization Transaction at least ten (10) Business Days prior to the anticipated Effective Time. The Upon receipt of such notice, Purchaser and the Company shall shall, subject in all cases to Section 6.13(a), work cooperatively co-operatively and use commercially reasonable efforts to prepare prior to the Expiry Effective Time all documentation necessary and do all such other acts and things as are necessary reasonably necessary, including making amendments to this Agreement or the Plan of Arrangement, to give effect to such Pre-Acquisition ReorganizationReorganization Transaction. For greater certaintyNo Reorganization Transaction will be made effective unless (i) it is reasonably certain, after consulting with the Company, that the Arrangement will become effective, (ii) such Reorganization Transaction can be reversed or unwound without adversely affecting the holders of Company Securities, the Company shall or any of its Subsidiaries in the event the Arrangement does not be liable for become effective and this Agreement is terminated (after giving effect to any reimbursement required by this Section 6.13), or (iii) the failure Company otherwise consents to such Reorganization Transaction, acting reasonably. The obligation of the Purchaser to benefit from any anticipated Tax efficiency as a result of a Pre-Acquisition Reorganization.
(d) The Purchaser agrees that it will reimburse the Company for fees and expenses and be responsible for all costs as set out in this Section 6.13 will be in addition to any other payment Purchaser may be obligated to make hereunder and expenses associated with will survive termination of this Agreement. If the Arrangement is not completed for any Pre-Acquisition Reorganization reason, and without prejudice to be carried out at its request any other remedy of the Company, Purchaser hereby indemnifies and shall indemnify and save holds harmless the Company and its subsidiaries Subsidiaries and their respective Representatives from and against any and all liabilities, losses, damages, claims, costs, expenses, interest awards, judgments Damages and penalties Taxes suffered or incurred by any of them in connection with or as a result of any such Pre-Acquisition Reorganization (including in respect of Transaction, or to reverse or unwind any reversal, modification or termination of a Pre-Acquisition Reorganization) and that any Pre-Acquisition Reorganization will not be considered in determining whether a representation or warranty of the Company under this Agreement has been breached (including where any such Pre-Acquisition Reorganization requires the consent of any third party under a Contract). If the Offer is not completed, the Purchaser shall reimburse the Company forthwith for all fees and expenses (including any reasonable professional fees and expenses and taxes) incurred by the Company in considering or effecting all or any part of the Pre-Acquisition Reorganization and shall be responsible for any fees, expenses and costs (including reasonable professional fees and expenses and taxes) of the Company in reversing or unwinding any Pre-Acquisition Reorganization that was effected prior to the Expiry TimeTransaction.
Appears in 1 contract
Reorganization. The Company agrees that, upon request by the Offeror, the Company shall (a) The Company shall effect such reorganization reorganizations of its business, operations, subsidiaries operations and assets or such other transactions as the Offeror may request, acting reasonably (each, a “"Pre-Acquisition Reorganization”"), and (b) as cooperate with the Purchaser may reasonably request prior Offeror and its advisors in order to determine the Expiry Timenature of the Pre-Acquisition Reorganizations that might be undertaken and the manner in which they might most effectively be undertaken; provided, however, that the Company need not effect a any Pre-Acquisition Reorganization which (i) is not prejudicial to the Company in any material respect, (ii) does not result in any material breach by the Company of its constating documents, any existing contract or commitment of the Company or any Law, or (iii) would impede not reasonably be expected to prevent or materially delay the take-Offeror's ability to take up of Exeter and pay for the Shares and the consummation of the Contemplated Transactions or that would be prejudicial tendered to the Company, its subsidiaries or the Exeter Securityholders or that would involve a material amount of the time and attention of the Company’s officers or employees.
(b) Without limiting the foregoing and other than as set forth in clause (a) above, the Company shall use its best efforts to obtain all necessary consents, approvals or waivers from any persons to effect each Pre-Acquisition Reorganization, and the Company shall cooperate with the Purchaser in structuring, planning and implementing any such Pre-Acquisition ReorganizationOffer. The Purchaser Offeror shall provide written notice to the Company of any proposed Pre-Acquisition Reorganization at least ten Business Days prior to the Expiry Time. In addition:
(i) any Pre-Acquisition Reorganization shall not unreasonably interfere with Upon receipt of such notice, the Company’s material operations prior to the Effective Time and shall not become effective until the Purchaser shall have waived or confirmed in writing the satisfaction of all conditions in its favour in the Offer and in this Agreement and shall have confirmed in writing that it is prepared to promptly, and without condition, proceed to effect the acquisition of the Exeter Shares;
(ii) any Pre-Acquisition Reorganization shall not require the Company to contravene any applicable Laws, its organizational documents or any Material Contract; and
(iii) the Company shall not be obligated to take any action that could result in any Taxes being imposed on, or any adverse Tax or other consequences to, any Exeter Securityholder incrementally greater than the Taxes or other consequences to such party in connection with the take-up of Exeter Shares and the consummation of the Offer in the absence of any Pre-Acquisition Reorganization.
(c) The Purchaser acknowledges and agrees that the planning for and implementation of any Pre-Acquisition Reorganization shall not be considered a breach of any covenant under this Agreement and shall not be considered in determining whether a representation or warranty of the Company hereunder has been breached. The Purchaser Offeror and the Company shall work cooperatively co-operatively and use commercially reasonable efforts to prepare prior to the Expiry Time all documentation necessary and do all such other acts and things as are necessary to give effect to such Pre-Acquisition Reorganization. For greater certaintyThe Offeror agrees to waive any breach of a representation, warranty or covenant by the Company shall not be liable for the failure of the Purchaser to benefit from any anticipated Tax efficiency as where such breach is a result of a Pre-Acquisition Reorganization.
(d) The Purchaser agrees that it will be responsible for all costs and expenses associated with any Pre-Acquisition Reorganization to be carried out at its request and shall indemnify and save harmless an action taken by the Company and its subsidiaries and their respective Representatives from and against any and all liabilities, losses, damages, claims, costs, expenses, interest awards, judgments and penalties suffered or incurred in good faith pursuant to a request by any of them the Offeror in connection accordance with or as a result this Section 8.7. The completion of any such Pre-Acquisition Reorganization (including shall be subject to the satisfaction or waiver by the Offeror of the conditions set forth in respect Schedule A and shall be effected immediately prior to any take-up by the Offeror of any reversalShares tendered to the Offer. If the Offeror does not take up and pay for the Shares tendered to the Offer, modification or termination the Offeror shall reimburse the Company for all direct fees and expenses of a the Company incurred in connection with the proposed Pre-Acquisition Reorganization) , if any, and that any Pre-Acquisition Reorganization will not be considered in determining whether a representation or warranty of the Company under this Agreement has been breached (including where any such Pre-Acquisition Reorganization requires the consent of any third party under a Contract). If the Offer is not completed, the Purchaser shall reimburse the Company forthwith for all fees and expenses (including any reasonable professional fees and expenses and taxes) incurred adverse tax consequences suffered by the Company in considering or effecting all or any part as a result of implementing the Pre-Acquisition Reorganization and shall be responsible for any fees, expenses and costs (including reasonable professional fees and expenses and taxes) of the Company in reversing or unwinding any Pre-Acquisition Reorganization that was effected prior to the Expiry TimeReorganization.
Appears in 1 contract
Samples: Acquisition Support Agreement (Corriente Resources Inc.)
Reorganization. At or prior to the Closing, Seller and Seller Parent shall take, or shall cause the Company or its Subsidiaries to take, each of the following actions (collectively, the "Reorganization"):
(a) The Company shall effect such reorganization (or its applicable Subsidiaries) shall, effective as of 12:01 a.m., New York City time, on January 1, 2004, dividend and transfer to Seller (or its business, operations, subsidiaries and assets or such other transactions (each, a “Pre-Acquisition Reorganization”designee) as all of the Purchaser may reasonably request prior to outstanding shares of capital stock of the Expiry Time; provided, however, that Excluded Subsidiaries then owned by the Company need not effect a Pre-Acquisition Reorganization which would impede (or materially delay the take-up of Exeter Shares and the consummation of the Contemplated Transactions or that would be prejudicial to the Company, its subsidiaries or the Exeter Securityholders or that would involve a material amount of the time and attention of the Company’s officers or employeesapplicable Subsidiaries).
(b) Without limiting the foregoing and other than as set forth in clause (a) above, the Company shall use its best efforts to obtain all necessary consents, approvals or waivers from any persons to effect each Pre-Acquisition Reorganization, and the Company shall cooperate with the Purchaser in structuring, planning and implementing any such Pre-Acquisition Reorganization. The Purchaser shall provide written notice to the Company of any proposed Pre-Acquisition Reorganization at least ten Business Days prior to the Expiry Time. In addition:
(i) any Pre-Acquisition Reorganization shall not unreasonably interfere with the Company’s material operations prior to the Effective Time and shall not become effective until the Purchaser shall have waived or confirmed in writing the satisfaction of all conditions in its favour in the Offer and in this Agreement and shall have confirmed in writing that it is prepared to promptly, and without condition, proceed to effect the acquisition of the Exeter Shares;
(ii) any Pre-Acquisition Reorganization shall not require the Company to contravene any applicable Laws, its organizational documents or any Material Contract; and
(iii) the Company shall not be obligated to take any action that could result in any Taxes being imposed on, or any adverse Tax or other consequences to, any Exeter Securityholder incrementally greater than the Taxes or other consequences to such party in connection with the take-up of Exeter Shares and the consummation of the Offer in the absence of any Pre-Acquisition Reorganization.[Reserved]
(c) The Purchaser acknowledges and agrees that the planning for and implementation of any Pre-Acquisition Reorganization shall not be considered a breach of any covenant under this Agreement and shall not be considered in determining whether a representation or warranty of the Company hereunder has been breached. The Purchaser and the Company shall work cooperatively and use commercially reasonable efforts to prepare prior to the Expiry Time all documentation necessary and do such other acts and things as are necessary to give effect to such Pre-Acquisition Reorganization. For greater certainty, the Company shall not be liable for the failure of the Purchaser to benefit from any anticipated Tax efficiency as a result of a Pre-Acquisition Reorganization.[Reserved]
(d) The Purchaser agrees that it will be responsible for all costs and expenses associated with any Pre-Acquisition Reorganization Seller shall cause the Company Credit Agreement to be carried out terminated or, at its request Seller's sole discretion, amended to provide that no Subject Company shall have any rights or obligations with respect thereto, effective as of the Closing.
(e) Prior to the Closing, Seller Parent and Seller shall indemnify cause the Subject Companies and save harmless FG (with respect to the FG Transferred Assets only) to run through the Lexis-Nexis Banko Database (the "Banko Database"), as of January 0, 0004, all of theix xxxpective Receivables related to a personal loan
(unless a Subject Company or FG has a security interest with respect to such loan in the obligor's automobile) or a sales finance loan, on which payments to be made by the obligor under such loans are thirty days or more past due (collectively, the "Past Due Receivables"). Seller Parent and Seller shall cause the Subject Companies and FG (with respect to the FG Transferred Assets only) to charge-off, as of January 1, 2004 and prior to the Financial Accounting Closing, each such Past Due Receivable if the obligor under such Past Due Receivable is identified as bankrupt in the Banko Database (such charged-off Past Due Receivablex xxxng collectively referred to herein as the "Charged-Off Receivables").
(f) Prior to the Closing, Seller shall cause the provision for loan losses with respect to the Company and its subsidiaries the FG Transferred Assets to be equal to $147,728,620 in the aggregate..
(g) Seller shall cause (i) all accrued but unused vacation time to which any employee of the Subject Companies and their respective Representatives from any employee of FG in the FG Transferred Business is entitled pursuant to the Vacation Policy, (ii) the Variable Plan Payments, (iii) all other bonus, incentive and against any performance compensation payments or awards under the Benefit Plans with respect to employees of the Subject Companies and employees of FG in the FG Transferred Business and (iv) all liabilitiesoperational liabilities of the Subject Companies and the FG Transferred Business to be fully accrued on the Company's books and records as of January 1, losses, damages, claims, costs, expenses, interest awards, judgments 2004 and penalties suffered or incurred by any of them in connection with or as a result of any such Pre-Acquisition Reorganization prior to the Financial Accounting Closing (including provided that the reserves for payroll taxes in respect of any reversal, modification or termination of a Pre-Acquisition Reorganization) and that any Pre-Acquisition Reorganization will bonuses shall not be considered in determining whether a representation or warranty of the Company under this Agreement has been breached (including where any such Pre-Acquisition Reorganization requires the consent of any third party under a Contractexceed $300,000). If the Offer is not completed, the Purchaser shall reimburse the Company forthwith for all fees and expenses (including any reasonable professional fees and expenses and taxes) incurred by the Company in considering or effecting all or any part of the Pre-Acquisition Reorganization and shall be responsible for any fees, expenses and costs (including reasonable professional fees and expenses and taxes) of the Company in reversing or unwinding any Pre-Acquisition Reorganization that was effected prior to the Expiry Time."
Appears in 1 contract
Samples: Memorandum of Understanding (Washington Mutual Finance Corp)
Reorganization. Upon the (ai) non-renewal of this Agreement pursuant to Section 15(a) of this Agreement, (ii) termination of this Agreement in accordance with Section 17(c) of this Agreement, (iii) the termination of this Agreement by the Manager following an Acquisition Event in accordance with Section 17(d) of this Agreement or (iv) the termination of this Agreement in accordance with Section 17(e) of this Agreement provided that the Manager was not at fault for the Company becoming regulated as an “investment company” under the Investment Company Act, the Company agrees to, and shall be obligated to, acquire and pay for substantially all of the assets of the Manager in a transaction intended to qualify, in the opinion of counsel reasonably acceptable to the Manager, as a tax-free reorganization pursuant to Section 368(a)(1)(A) or 368(a)(1)(C) of the Internal Revenue Code, as amended (the “Reorganization”). In consideration for the acquisition of the Manager’s assets (the “Acquisition”), the Company shall issue to the Manager an amount of publicly registered shares of the Company’s common stock, calculated as follows:
(1) The Manager shall retain an independent certified public accountant mutually acceptable to the Company and the Manager to prepare in accordance with GAAP, using the cash receipts and disbursements method of accounting, audited financial statements for the three twelve-month periods (the “Statements”) over the thirty-six month period ending with the most recently completed calendar quarter (the “Measuring Period”). The Statements shall show gross revenues received by the Manager less all expenses (excluding bonus payments to the Manager’s employees and Affiliates) paid by the Manager during the Measuring Period. The cost of preparing the Statements shall be shared equally by the Company and the Manager.
(2) The Company shall effect such reorganization of its business, operations, subsidiaries and assets or such other transactions (each, a “Pre-Acquisition Reorganization”) as the Purchaser may reasonably request prior issue to the Expiry TimeManager as payment for the Acquisition that number of shares of the Company’s common stock equal to one hundred twenty percent (120%) of the quotient of the Manager’s net profit (excluding bonus payments to the Manager’s employees and Affiliates) on the Statement for the twelve-month period showing the highest net profit during the Measuring Period, divided by the dividend per share of common stock declared by the Company during the most recent fiscal quarter in which a dividend was declared, on an annualized basis; provided, however, that such Acquisition payment shall not be less than the Company need not effect a Pre-Acquisition Reorganization which would impede or materially delay the take-up sum of Exeter Shares and the consummation $5 million for each $100 million of the Contemplated Transactions or that would be prejudicial equity capital attributable to the Company’s common stock and preferred stock, its subsidiaries or the Exeter Securityholders or that would involve a material amount of the time and attention of the Company’s officers or employeesif any.
(b) Without limiting the foregoing and other than as set forth in clause (a) above, the Company shall use its best efforts to obtain all necessary consents, approvals or waivers from any persons to effect each Pre-Acquisition Reorganization, and the Company shall cooperate with the Purchaser in structuring, planning and implementing any such Pre-Acquisition Reorganization. The Purchaser shall provide written notice to the Company of any proposed Pre-Acquisition Reorganization at least ten Business Days prior to the Expiry Time. In addition:
(i) any Pre-Acquisition Reorganization shall not unreasonably interfere with the Company’s material operations prior to the Effective Time and shall not become effective until the Purchaser shall have waived or confirmed in writing the satisfaction of all conditions in its favour in the Offer and in this Agreement and shall have confirmed in writing that it is prepared to promptly, and without condition, proceed to effect the acquisition of the Exeter Shares;
(ii) any Pre-Acquisition Reorganization shall not require the Company to contravene any applicable Laws, its organizational documents or any Material Contract; and
(iii) the Company shall not be obligated to take any action that could result in any Taxes being imposed on, or any adverse Tax or other consequences to, any Exeter Securityholder incrementally greater than the Taxes or other consequences to such party in connection with the take-up of Exeter Shares and the consummation of the Offer in the absence of any Pre-Acquisition Reorganization.
(c) The Purchaser acknowledges and agrees that the planning for and implementation of any Pre-Acquisition Reorganization shall not be considered a breach of any covenant under this Agreement and shall not be considered in determining whether a representation or warranty of the Company hereunder has been breached. The Purchaser and the Company shall work cooperatively and use commercially reasonable efforts to prepare prior to the Expiry Time all documentation necessary and do such other acts and things as are necessary to give effect to such Pre-Acquisition Reorganization. For greater certainty, the Company shall not be liable for the failure of the Purchaser to benefit from any anticipated Tax efficiency as a result of a Pre-Acquisition Reorganization.
(d) The Purchaser agrees that it will be responsible for all costs and expenses associated with any Pre-Acquisition Reorganization to be carried out at its request and shall indemnify and save harmless the Company and its subsidiaries and their respective Representatives from and against any and all liabilities, losses, damages, claims, costs, expenses, interest awards, judgments and penalties suffered or incurred by any of them in connection with or as a result of any such Pre-Acquisition Reorganization (including in respect of any reversal, modification or termination of a Pre-Acquisition Reorganization) and that any Pre-Acquisition Reorganization will not be considered in determining whether a representation or warranty of the Company under this Agreement has been breached (including where any such Pre-Acquisition Reorganization requires the consent of any third party under a Contract). If the Offer is not completed, the Purchaser shall reimburse the Company forthwith for all fees and expenses (including any reasonable professional fees and expenses and taxes) incurred by the Company in considering or effecting all or any part of the Pre-Acquisition Reorganization and shall be responsible for any fees, expenses and costs (including reasonable professional fees and expenses and taxes) of the Company in reversing or unwinding any Pre-Acquisition Reorganization that was effected prior to the Expiry Time.
Appears in 1 contract
Samples: Management Agreement (Belvedere Trust Mortgage CORP)
Reorganization. (a) The Company shall effect such reorganization of its business, operations, subsidiaries As promptly as practicable after the date hereof and assets or such other transactions (each, a “Pre-Acquisition Reorganization”) as the Purchaser may reasonably request in any case prior to the Expiry TimeClosing, Seller shall cause to be consummated the Reorganization substantially in accordance with the steps set forth on Appendix B hereto, all of which shall be structured and effected in a manner, and pursuant to documentation, reasonably acceptable to Buyer and in accordance with applicable Law; providedprovided that, however, that the Company need not effect a Pre-Acquisition Reorganization which would impede or materially delay the take-up of Exeter Shares and the consummation in respect of the Contemplated Transactions or that would be prejudicial India Reorganization, Seller shall (x) within 5 Business Days after the date hereof, commence the India Reorganization Base Case, including all filings related to the Companydemerger transaction contemplated thereby, its subsidiaries or the Exeter Securityholders or that would involve a material amount of the time and attention of the Company’s officers or employees.
(by) Without limiting the foregoing and other than as set forth in clause (a) above, the Company shall use its best efforts to obtain all necessary consentscause the transactions contemplated thereby to be consummated as promptly as practicable following the date hereof, approvals including, in the event of a Delayed India Close Scenario, the India Reorganization Alternative Case. In furtherance and not in limitation of the foregoing, Seller shall cause (a) each Newco not to, without the prior written consent of Buyer, enter into any agreements with, or waivers from any persons to effect each Pre-Acquisition Reorganization, and the Company shall cooperate with the Purchaser in structuring, planning and implementing any such Pre-Acquisition Reorganization. The Purchaser shall provide written notice to the Company commitments of any proposed Pre-Acquisition Reorganization at least ten Business Days prior to the Expiry Time. In addition:
(i) any Pre-Acquisition Reorganization shall not unreasonably interfere with the Company’s material operations prior to the Effective Time and shall not become effective until the Purchaser shall have waived or confirmed in writing the satisfaction of all conditions in its favour in the Offer and in this Agreement and shall have confirmed in writing that it is prepared to promptly, and without condition, proceed to effect the acquisition of the Exeter Shares;
(ii) any Pre-Acquisition Reorganization shall not require the Company to contravene any applicable Laws, its organizational documents or any Material Contract; and
(iii) the Company shall not be obligated to take any action that could result in any Taxes being imposed on, or any adverse Tax or other consequences kind to, any Exeter Securityholder incrementally greater than the Taxes works council or other consequences employee representative body that would increase any Liability or obligation related to the Business Employees in excess of such Liability or obligation as of the date hereof, or create new obligations, to such party works council or other employee representative body, in connection each case with respect to the take-up of Exeter Shares Business Employees, and the consummation (b) any Business Employee not employed as of the Offer in the absence of any Pre-Acquisition Reorganization.
(c) The Purchaser acknowledges and agrees that the planning for and implementation of any Pre-Acquisition Reorganization shall not be considered date hereof by a breach of any covenant under this Agreement and shall not be considered in determining whether Person who will constitute a representation or warranty member of the Company hereunder has been breached. The Purchaser and Stock Group following the Company shall work cooperatively and use commercially reasonable efforts Reorganization who is on disability (long term or short term) leave or on leave of absence not to prepare prior to the Expiry Time all documentation necessary and do such other acts and things as are necessary to give effect to such Pre-Acquisition Reorganization. For greater certainty, the Company shall not be liable for the failure become an employee of the Purchaser to benefit from any anticipated Tax efficiency as a result Stock Group; provided that, such Business Employee’s offer of a Pre-Acquisition Reorganization.
employment with Buyer (dor Buyer’s Affiliate) The Purchaser agrees that it will shall be responsible for all costs effective and expenses associated with any Pre-Acquisition Reorganization to be carried out at its request and shall indemnify and save harmless contingent upon the Company and its subsidiaries and their respective Representatives from and against any and all liabilities, losses, damages, claims, costs, expenses, interest awards, judgments and penalties suffered or incurred by any of them in connection with or as a result return of any such Pre-Acquisition Reorganization employee to active employment within six (including 6) months after the Closing Date, unless otherwise required by Law, and such offer of employment shall otherwise be consistent with the requirements as to compensation and benefits set forth in respect of any reversal, modification or termination of a Pre-Acquisition Reorganization) and that any Pre-Acquisition Reorganization will not be considered in determining whether a representation or warranty of the Company under this Agreement has been breached (including where any such Pre-Acquisition Reorganization requires the consent of any third party under a ContractSection 11.1(a). If the Offer is not completed, the Purchaser shall reimburse the Company forthwith for all fees and expenses (including any reasonable professional fees and expenses and taxes) incurred by the Company in considering or effecting all or any part of the Pre-Acquisition Reorganization and shall be responsible for any fees, expenses and costs (including reasonable professional fees and expenses and taxes) of the Company in reversing or unwinding any Pre-Acquisition Reorganization that was effected prior to the Expiry Time.
Appears in 1 contract
Reorganization. (a) The Company Aurizon shall effect such reorganization of its business, operations, subsidiaries and assets or such other transactions (each, a “Pre-Acquisition Reorganization”) as the Purchaser Hecla may reasonably request prior to the Expiry TimeEffective Date, and the Plan of Arrangement, if required, shall be modified accordingly; provided, however, that the Company Aurizon need not effect a Pre-Acquisition Reorganization which would impede or materially delay the take-up of Exeter Shares and the consummation of the Contemplated Transactions or that would be prejudicial to the Company, its subsidiaries or the Exeter Securityholders or that would involve a material amount of the time and attention of the Company’s officers or employeesArrangement.
(b) Without limiting the foregoing and other than as set forth in clause (a) above, the Company Aurizon shall use its best efforts to obtain all necessary consents, approvals or waivers from any persons to effect each Pre-Acquisition Reorganization, and the Company Aurizon shall cooperate with the Purchaser Hecla in structuring, planning and implementing any such Pre-Acquisition Reorganization. The Purchaser Hecla shall provide written notice to the Company Aurizon of any proposed Pre-Acquisition Reorganization at least ten Business Days business days prior to the Expiry Timedate of the Aurizon Meeting. In addition:
(i) any Pre-Acquisition Reorganization shall not unreasonably interfere with the Companyin Aurizon’s material operations prior to the Effective Time and shall not become effective until the Purchaser shall have waived or confirmed in writing the satisfaction of all conditions in its favour in the Offer and in this Agreement and shall have confirmed in writing that it is prepared to promptly, and without condition, proceed to effect the acquisition of the Exeter SharesTime;
(ii) any Pre-Acquisition Reorganization shall not require the Company Aurizon to contravene any applicable Laws, its organizational documents or any Material Contract; and
(iii) the Company Aurizon shall not be obligated to take any action that could result in any Taxes being imposed on, or any adverse Tax or other consequences to, any Exeter Aurizon Securityholder incrementally greater than the Taxes or other consequences to such party in connection with the take-up of Exeter Shares and the consummation of the Offer Arrangement in the absence of any Pre-Acquisition Reorganization.
(c) The Purchaser Hecla acknowledges and agrees that the planning for and implementation of any Pre-Acquisition Reorganization shall not be considered a breach of any covenant under this Agreement and shall not be considered in determining whether a representation or warranty of the Company Aurizon hereunder has been breached. The Purchaser Hecla and the Company Aurizon shall work cooperatively and use commercially reasonable commercial efforts to prepare prior to the Expiry Effective Time all documentation necessary and do such other acts and things as are necessary to give effect to such Pre-Acquisition Reorganization. For greater certainty, the Company Aurizon shall not be liable for the failure of the Purchaser Hecla to benefit from any anticipated Tax efficiency as a result of a Pre-Acquisition Reorganization.
(d) The Purchaser agrees that it will be responsible for all costs and expenses associated with any Pre-Acquisition Reorganization to be carried out at its request and shall indemnify and save harmless the Company and its subsidiaries and their respective Representatives from and against any and all liabilities, losses, damages, claims, costs, expenses, interest awards, judgments and penalties suffered or incurred by any of them in connection with or as a result of any such Pre-Acquisition Reorganization (including in respect of any reversal, modification or termination of a Pre-Acquisition Reorganization) and that any Pre-Acquisition Reorganization will not be considered in determining whether a representation or warranty of the Company under this Agreement has been breached (including where any such Pre-Acquisition Reorganization requires the consent of any third party under a Contract). If the Offer Arrangement is not completed, the Purchaser shall Hecla will forthwith reimburse the Company forthwith Aurizon for all reasonable fees and expenses (including any reasonable professional fees and expenses and taxes) actually incurred by the Company Aurizon in considering or and effecting all or any part of the a Pre-Acquisition Reorganization and shall be responsible for any fees, expenses and the reasonable costs (including reasonable professional fees and expenses and taxes) of the Company actually incurred by Aurizon in reversing or unwinding any Pre-Acquisition Reorganization that was effected prior at Hecla’s request. The obligation of Hecla to the Expiry Timereimburse Aurizon as set out in this section will be in addition to any other obligation and shall survive termination of this Agreement indefinitely.
Appears in 1 contract
Reorganization. Meridian agrees that, upon request by Yamana, Meridian shall (ai) The Company shall effect such reorganization reorganizations of its business, operations, subsidiaries operations and assets or such other transactions as Yamana may request, acting reasonably (each, each a “"Pre-Acquisition Reorganization”") as and (ii) co-operate with Yamana and its advisors in order to determine the Purchaser may reasonably request prior to nature of the Expiry Time; provided, however, that the Company need not effect a Pre-Acquisition Reorganization which would impede or materially delay the take-up of Exeter Shares Reorganizations that might be undertaken and the consummation of manner in which they might most effectively be undertaken; provided that the Contemplated Transactions or that would be prejudicial to the Company, its subsidiaries or the Exeter Securityholders or that would involve a material amount of the time and attention of the Company’s officers or employees.
(b) Without limiting the foregoing and other than as set forth in clause (a) above, the Company shall use its best efforts to obtain all necessary consents, approvals or waivers from any persons to effect each Pre-Acquisition Reorganization, Reorganizations are not prejudicial to Meridian in any material respect and (A) do not result in any breach by Meridian of (i) any existing contract or commitment of Meridian; or (ii) any Law; or (B) would not reasonably be expected to impede or delay Yamana's ability to take up and pay for the Company shall cooperate with Shares tendered to the Purchaser in structuring, planning and implementing any such Pre-Acquisition ReorganizationOffer. The Purchaser Yamana shall provide written notice to the Company Meridian of any proposed Pre-Acquisition Reorganization at least ten Business Days five business days prior to the Expiry Time. In addition:
(i) any Pre-Acquisition Reorganization shall not unreasonably interfere with the Company’s material operations prior to the Effective Time Upon receipt of such notice, Yamana and shall not become effective until the Purchaser shall have waived or confirmed in writing the satisfaction of all conditions in its favour in the Offer and in this Agreement and shall have confirmed in writing that it is prepared to promptly, and without condition, proceed to effect the acquisition of the Exeter Shares;
(ii) any Pre-Acquisition Reorganization shall not require the Company to contravene any applicable Laws, its organizational documents or any Material Contract; and
(iii) the Company shall not be obligated to take any action that could result in any Taxes being imposed on, or any adverse Tax or other consequences to, any Exeter Securityholder incrementally greater than the Taxes or other consequences to such party in connection with the take-up of Exeter Shares and the consummation of the Offer in the absence of any Pre-Acquisition Reorganization.
(c) The Purchaser acknowledges and agrees that the planning for and implementation of any Pre-Acquisition Reorganization shall not be considered a breach of any covenant under this Agreement and shall not be considered in determining whether a representation or warranty of the Company hereunder has been breached. The Purchaser and the Company Meridian shall work cooperatively co-operatively and use commercially reasonable efforts to prepare prior to the Expiry Time all documentation necessary and do all such other acts and things as are necessary to give effect to such Pre-Acquisition Reorganization. For greater certaintyYamana agrees to waive any breach of a representation, the Company shall not be liable for the failure of the Purchaser to benefit from any anticipated Tax efficiency as warranty or covenant by Meridian where such breach is a result of an action taken by Meridian in good faith pursuant to a Pre-Acquisition Reorganization.
(d) request by Yamana in accordance with this Section 6.8 above. The Purchaser agrees that it will be responsible for all costs and expenses associated with any Pre-Acquisition Reorganization to be carried out at its request and shall indemnify and save harmless the Company and its subsidiaries and their respective Representatives from and against any and all liabilities, losses, damages, claims, costs, expenses, interest awards, judgments and penalties suffered or incurred by any of them in connection with or as a result completion of any such Pre-Acquisition Reorganization (shall be subject to the satisfaction or waiver by Yamana of the conditions to the Offer set forth in Schedule A and shall be effected immediately prior to any take-up by Yamana of Shares tendered to the Offer. If Yamana does not take up and pay for the Shares tendered to the Offer, Yamana shall indemnify Meridian for any and all losses, costs and expenses, including reasonable legal fees and disbursements, incurred in respect of connection with any reversal, modification or termination of a proposed Pre-Acquisition Reorganization) and that any Pre-Acquisition Reorganization will not be considered in determining whether a representation or warranty of the Company under this Agreement has been breached (including where any such Pre-Acquisition Reorganization requires the consent of any third party under a Contract). If the Offer is not completed, the Purchaser shall reimburse the Company forthwith for all fees and expenses (including any reasonable professional fees and expenses and taxes) incurred by the Company in considering or effecting all or any part of the Pre-Acquisition Reorganization and shall be responsible for any fees, expenses and costs (including reasonable professional fees and expenses and taxes) of the Company in reversing or unwinding any Pre-Acquisition Reorganization that was effected prior to the Expiry Time.
Appears in 1 contract
Samples: Support Agreement (Yamana Gold Inc)
Reorganization. (a) The Company shall effect such reorganization of its business, operations, subsidiaries and assets or such other transactions (each, a “Pre-Acquisition Reorganization”) as the Purchaser may reasonably request prior to the Expiry Time; provided, however, that the Company need not effect a Pre-Acquisition Reorganization which would impede or materially delay the take-up of Exeter Shares and the consummation of Purchasers agree that, as soon as practicable after the Contemplated Transactions or that would be prejudicial to the Company, its subsidiaries or the Exeter Securityholders or that would involve a material amount of the time and attention of the Company’s officers or employees.
(b) Without limiting the foregoing and other than as set forth in clause (a) aboveClosing, the Company shall consummate a holding company reorganization, whereby the Company shall become a wholly-owned subsidiary of a new public holding company through a Restructuring. In connection therewith, the Board in the Closing Resolutions has designated and established an ad hoc special committee of the Board at the Closing (the “Restructuring Committee”), consisting of the three New Directors and two other members of the Board, and delegated the full and exclusive power and authority of the Board to review, evaluate, investigate, pursue and negotiate the terms and conditions of,to authorize and approve the terms and conditions of, and to take, and to authorize and direct the appropriate officers of the Company to take, all actions such committee deems necessary or desirable to consummate, such reorganization, including a Redomestication and a Restructuring, all as more fully set forth in the Closing Resolutions. The Company agrees with and warrants to each Purchaser to use its best efforts to obtain all necessary consentsconsummate such reorganization as soon as reasonably practicable after the Annual Meeting, approvals or waivers including the Board from any persons time to effect each Pre-Acquisition Reorganization, and time taking the Company shall cooperate with the Purchaser in structuring, planning and implementing any such Pre-Acquisition Reorganization. The Purchaser shall provide written notice to the Company of any proposed Pre-Acquisition Reorganization at least ten Business Days prior to the Expiry Time. In addition:
following actions: (i) any Pre-Acquisition Reorganization shall not unreasonably interfere with approving and adoptingany plan or plans of merger or exchange approved by the Company’s material operations prior Restructuring Committee and submitted to the Effective Time Board for approval and shall not become effective until adoption, (ii submitting such plan or plans to the Purchaser shall have waived or confirmed in writing the satisfaction of all conditions in its favour in the Offer and in this Agreement and shall have confirmed in writing that it is prepared to promptly, and without condition, proceed to effect the acquisition stockholders of the Exeter Shares;
Company for approval (ii) any Pre-Acquisition Reorganization shall not require including, upon request of the Restructuring Committee, authorizing the approval of such plan or plans by the written consent of the stockholders in lieu of a meeting, and/or directing the Chairman of the Board, the Chief Executive Officer or the President of the Company to contravene any applicable Lawscall a special meeting of the stockholders to approve such plan or plans), its organizational documents or any Material Contract; and
and (iii) recommending to the Company stockholders the approval of such plan or plans. Notwithstanding the provisions of Section 5.16, the Restructuring Committee shall not be obligated have the power and authority to take any action that could result in any Taxes being imposed on, or any adverse Tax or other consequences to, any Exeter Securityholder incrementally greater than authorize disbursements from the Taxes or other consequences to such party Proceeds Account in connection with the take-up of Exeter Shares and the consummation of the Offer in the absence of any Pre-Acquisition Reorganization.
(c) The Purchaser acknowledges and agrees that the planning for and implementation of any Pre-Acquisition Reorganization shall not be considered a breach of any covenant under this Agreement and shall not be considered in determining whether a representation or warranty of the Company hereunder has been breachedRestructuring. The Purchaser Company and the Company shall work cooperatively and use commercially reasonable efforts to prepare prior Board will comply in all respects with the Closing Resolutions, including the amendments to the Expiry Time all documentation necessary and do such other acts and things as are necessary to give effect to such Pre-Acquisition Reorganization. For greater certainty, the Company shall not be liable for the failure of the Purchaser to benefit from any anticipated Tax efficiency as a result of a Pre-Acquisition ReorganizationBylaws effected thereby.
(d) The Purchaser agrees that it will be responsible for all costs and expenses associated with any Pre-Acquisition Reorganization to be carried out at its request and shall indemnify and save harmless the Company and its subsidiaries and their respective Representatives from and against any and all liabilities, losses, damages, claims, costs, expenses, interest awards, judgments and penalties suffered or incurred by any of them in connection with or as a result of any such Pre-Acquisition Reorganization (including in respect of any reversal, modification or termination of a Pre-Acquisition Reorganization) and that any Pre-Acquisition Reorganization will not be considered in determining whether a representation or warranty of the Company under this Agreement has been breached (including where any such Pre-Acquisition Reorganization requires the consent of any third party under a Contract). If the Offer is not completed, the Purchaser shall reimburse the Company forthwith for all fees and expenses (including any reasonable professional fees and expenses and taxes) incurred by the Company in considering or effecting all or any part of the Pre-Acquisition Reorganization and shall be responsible for any fees, expenses and costs (including reasonable professional fees and expenses and taxes) of the Company in reversing or unwinding any Pre-Acquisition Reorganization that was effected prior to the Expiry Time.
Appears in 1 contract
Reorganization. (a) The Subject to obtaining any required Consents, Seller shall cause all of the Reorganization Assets to be contributed, transferred or assigned to the Company shall effect such reorganization pursuant to the restructuring steps described in Schedule 1.2 to be taken no later than as of its business, operations, subsidiaries and assets or such other transactions one (each, a “Pre-Acquisition Reorganization”1) as the Purchaser may reasonably request Business Day prior to the Expiry Time; providedClosing. Seller shall, howeverand shall cause its Affiliates (including the Acquired Companies) to conduct the Reorganization in compliance with all applicable Laws. Seller shall keep Buyer reasonably informed regarding the process and status of the Reorganization. Prior to the execution of any transaction document related to, that or in connection with the Reorganization (such documents, collectively, the “Reorganization Documents”) by Seller or is Affiliates or the amendment of any Contract with a counterparty of Seller, FSD, the Company need or one of their respective Affiliates, Seller shall (i) provide a draft of such Reorganization Document or amendment to Buyer and provide Buyer a reasonable opportunity to review, comment on and approve such draft Reorganization Document or amendment and (ii) take into consideration in good faith prior to finalizing the Reorganization any comments made by Buyer or its advisors. For greater clarity, and notwithstanding any other provision of this Section 5.3, Seller shall not effect a Pre-Acquisition Reorganization which would impede (x) make any alteration, update or materially delay the take-up of Exeter Shares and the consummation of the Contemplated Transactions or that would be prejudicial modification to the Reorganization Steps Plan set forth in Schedule 1.2 unless the underlying action is expressly permitted by this Agreement, or (y) enter into the Reorganization Documents not substantially in the form of a Reorganization Document (A) provided to Buyer prior to the date hereof or (B) for which Buyer previously provided consent pursuant to this Section 5.3(a), in each case without the prior written consent of Buyer (so long as such consent is not to be unreasonably withheld, conditioned or delayed). Seller may, upon written notice to Buyer, supplement (i) Schedule 1.1 with any Entity that is formed by Seller or its Affiliates solely for the purpose of owning the assets related to a Project, and thereafter Schedule 1.1 shall be deemed to be as so supplemented and such Entity shall be deemed to be a “Project Company,” and Seller shall contribute, or shall cause such Project Company to be contributed, to the Company prior to the Closing, and (ii) Schedule 1.3 with any additional asset or liability that is acquired, incurred or assumed by Seller or its subsidiaries Affiliates as the result of a transaction permitted to be taken by Seller or its Affiliates under Section 5.1 and which is related to the Exeter Securityholders or that would involve a material amount of the time FS Development Platform, and attention of the Company’s officers or employeesthereafter, Schedule 1.3 shall be deemed to be as so supplemented.
(b) Without limiting As soon as reasonably practicable following the foregoing and other than as set forth in clause (a) abovedate hereof, the Company shall use its best efforts to obtain all necessary consents, approvals or waivers from any persons to effect each Pre-Acquisition ReorganizationSeller shall, and the Company shall cooperate with the Purchaser in structuring, planning and implementing any such Pre-Acquisition Reorganization. The Purchaser shall provide written notice to the Company of any proposed Pre-Acquisition Reorganization at least ten Business Days prior to the Expiry Time. In addition:
(i) any Pre-Acquisition Reorganization shall not unreasonably interfere with the Company’s material operations prior to the Effective Time and shall not become effective until the Purchaser shall have waived or confirmed in writing the satisfaction of all conditions in cause its favour in the Offer and in this Agreement and shall have confirmed in writing that it is prepared to promptly, and without condition, proceed to effect the acquisition of the Exeter Shares;
(ii) any Pre-Acquisition Reorganization shall not require the Company to contravene any applicable Laws, its organizational documents or any Material Contract; and
(iii) the Company shall not be obligated to take any action that could result in any Taxes being imposed on, or any adverse Tax or other consequences Affiliates to, give or make any Exeter Securityholder incrementally greater than the Taxes or other consequences to such party in connection with the take-up of Exeter Shares and the consummation of the Offer in the absence of any Pre-Acquisition Reorganization.
(c) The Purchaser acknowledges and agrees that the planning for and implementation of any Pre-Acquisition Reorganization shall not be considered a breach of any covenant under this Agreement and shall not be considered in determining whether a representation or warranty of the Company hereunder has been breached. The Purchaser and the Company shall work cooperatively Filings and use commercially reasonable efforts to prepare prior obtain as promptly as reasonably practicable any Consents of other Persons that may be required for the assignment, conveyance or transfer of a Contract or other interest or asset contemplated to be assigned, conveyed or transferred by an Acquired Company or a Retained Company, as applicable (such Person, the “Reorganization Assignor”), to a Retained Company or an Acquired Company, as applicable (such Person, the “Reorganization Assignee”), as part of the Reorganization (such Contract or other interest or asset, a “Reorganization Asset”).
(c) If the Parties mutually agree that Consent is required for the assignment, conveyance or transfer of a Reorganization Asset contemplated to be assigned, conveyed or transferred as party of the Reorganization cannot be obtained in accordance with Section 5.3(b), other than a Third-Party Consent, then Buyer and Seller shall cooperate to, subject to Section 5.3(a) or unless otherwise agreed by the Parties, cause the implementation of an alternative agency-type arrangement or another arrangement reasonably acceptable to the Expiry Time Parties pursuant to which, to the fullest extent practicable, the economic and other claims, rights and benefits of such Reorganization Asset are provided to the intended Reorganization Assignee of such Reorganization Asset, and such intended Reorganization Assignee bears all documentation necessary costs and do Liabilities contemplated to be borne by such other acts and things as are necessary to give effect intended Reorganization Assignee with respect to such Pre-Acquisition ReorganizationReorganization Asset. For greater certainty, the Company shall If a Reorganization Asset cannot be liable for the failure assigned or transferred without a release of the Purchaser Reorganization Assignor’s Liability related to benefit from such Reorganization Asset or if an arrangement of the type contemplated in the preceding sentence is implemented, then the related transaction agreement shall provide that the intended Reorganization Assignee of such Reorganization Asset shall indemnify the Reorganization Assignor for any anticipated Tax efficiency as a result Liability contemplated (in accordance with the terms of a Pre-Acquisition Reorganizationthis Agreement) to be borne by the intended Reorganization Assignee of such Reorganization Asset with respect to such Reorganization Asset.
(d) The Purchaser agrees Subject to Section 5.3(a) and other than with respect to a Third-Party Consent, any Reorganization Asset which is a Contract that it is only partially intended to be assigned as part of the Reorganization (such Contract, a “Shared Reorganization Contract”) shall be assigned only with respect to (and preserving the meaning of) those parts that are intended to be assigned to the applicable Reorganization Assignee, if so assignable or appropriately amended, so that the intended Reorganization Assignee will be (i) entitled to the rights and benefits of those parts of the Shared Reorganization Contract that are intended to be assigned and (ii) be responsible for the liabilities contemplated to be assumed by such intended Reorganization Assignee with respect to such Reorganization Asset, unless otherwise agreed by the Parties. If any Shared Reorganization Contract cannot be assigned by its terms or otherwise, or cannot be amended, without any approval, authorization or consent, and such approval, authorization or consent cannot be obtained in accordance with Section 5.3(b), or if it is otherwise not practical to assign a Shared Reorganization Contract in part, then, until the earlier of such time as such Consent has been obtained or a renegotiation of such Shared Reorganization Contract and execution of new Contracts with the related counterparties shall have been concluded, Seller shall, and shall cause its Affiliates to, at Buyer’s express request and in a form and substance reasonably acceptable to Buyer and Seller, establish an alternative agency-type arrangement pursuant to which, to the fullest extent practicable, (A) the economic and other claims, rights and benefits of such Shared Reorganization Contract intended to be provided to an intended Reorganization Assignee are provided to such intended Reorganization Assignee, and such intended Reorganization Assignee bears all costs and expenses associated with any Pre-Acquisition Reorganization liabilities contemplated to be carried out at its request borne by such intended Reorganization Assignee with respect to such Shared Reorganization Contract; and (B) all other rights and liabilities under such Shared Reorganization Contract are retained by the applicable Reorganization Assignor.
(e) Notwithstanding anything to the contrary in this Section 5.3, (i) with respect to any Commercially Available Software set forth on Schedule 5.3(e) or any other Commercially Available Software that is not material to the FS Development Platform, within thirty (30) days of the date hereof, the Parties shall identify such Commercially Available Software that the Buyer shall require use of for the FS Development Platform following the Closing; and (ii) Seller’s sole obligation with respect to the licensing, sublicensing, assignment or other transfer of such Commercially Available Software shall be to use commercially reasonable efforts, without the expenditure of additional sums to the extent not reimbursed by Buyer, to obtain consent to assign the license to such Commercially Available Software (or the relevant portion thereof) from the applicable licensor of such Commercially Available Software. If Seller is unable to obtain such consent, then Buyer shall have no right to use, and shall indemnify and save harmless cause the removal of such applicable Commercially Available Software from the Company IT Assets, and its subsidiaries and their respective Representatives from and against any and all liabilities, losses, damages, claims, costs, expenses, interest awards, judgments and penalties suffered or incurred by any of them in connection with or as a result of obtaining any such Pre-Acquisition Reorganization (including in respect of any reversal, modification or termination of a Pre-Acquisition Reorganization) and that any Pre-Acquisition Reorganization will consent shall not be considered in determining whether a representation or warranty of condition precedent to Buyer’s obligations to consummate the Company under this Agreement has been breached (including where any such Pre-Acquisition Reorganization requires the consent of any third party under a Contract). If the Offer is not completed, the Purchaser shall reimburse the Company forthwith for all fees and expenses (including any reasonable professional fees and expenses and taxes) incurred by the Company in considering or effecting all or any part of the Pre-Acquisition Reorganization and shall be responsible for any fees, expenses and costs (including reasonable professional fees and expenses and taxes) of the Company in reversing or unwinding any Pre-Acquisition Reorganization that was effected prior to the Expiry TimeClosing.
Appears in 1 contract
Reorganization. (a) The Company Prior to the Closing, Seller shall, and shall effect such reorganization cause its Controlled Affiliates to, use commercially reasonable efforts to perform the actions and activities set forth on Exhibit D (the “Seller Reorganization Actions”, and the taking of the Seller Reorganization Actions by Seller and its businessControlled Affiliates, operations, subsidiaries and assets or such other transactions (each, a the “Pre-Acquisition Reorganization”) as ). Seller shall, and shall cause its Controlled Affiliates to, use commercially reasonable efforts to complete the Purchaser may reasonably request prior to Seller Reorganization Actions within the Expiry Time; providedtimeframes set forth on Exhibit D (it being understood, however, that the Company need completion of the Seller Reorganization Actions as a whole, or of one or more individual Seller Reorganization Actions, shall not effect be a Pre-Acquisition Reorganization which would impede or materially delay condition to Purchasers’ obligation to consummate the take-up of Exeter Shares Transactions). Seller and the consummation Purchasers agree to cooperate in good faith to discuss and make any necessary changes to Target Net Working Capital and the Functional Balance Sheet to reflect the effect of any Contract assignments pursuant to the Seller Reorganization Actions, using a methodology reflecting the average of the Contemplated Transactions or that would be prejudicial last twelve month balances as of November 30, 2021, consistent with the methodology used to the Company, its subsidiaries or the Exeter Securityholders or that would involve a material amount of the time and attention of the Company’s officers or employeesdetermine Target Net Working Capital as currently determined.
(b) Without limiting Prior to the foregoing Closing, Seller shall, and shall cause its Controlled Affiliates to, use commercially reasonable efforts to (i) reasonably cooperate with Purchasers’ transition and integration planning activities, (ii) reasonably cooperate with Purchasers in Purchasers’ efforts to create transition plans for the separation of HR, IT, financial/accounting, compliance and other than functions as reasonably requested, and (iii) to make reasonably available the key personnel of the Business as reasonably requested by Purchasers in connection therewith, upon reasonable prior notice, during normal business hours and in a manner so as not to interfere with the normal business operations of Seller and its Controlled Affiliates. The Parties shall form a committee of the key personnel of the Business and representatives of Seller and Purchaser to oversee the implementation and integration planning activities, including those activities set forth in clause (a) abovethis Section 6.5(b), the Company which committee shall use its best efforts meet only during normal business hours and in a manner so as not to obtain all necessary consents, approvals or waivers from any persons to effect each Pre-Acquisition Reorganization, and the Company shall cooperate with the Purchaser in structuring, planning and implementing any such Pre-Acquisition Reorganization. The Purchaser shall provide written notice to the Company of any proposed Pre-Acquisition Reorganization at least ten Business Days prior to the Expiry Time. In addition:
(i) any Pre-Acquisition Reorganization shall not unreasonably interfere with the Company’s material normal business operations prior of Seller and its Controlled Affiliates and only as reasonably requested by Purchasers or Seller. For the avoidance of doubt, neither Seller nor any of its Affiliates or any of its personnel serving on any such committee shall be responsible or liable for any failure on the part of Purchasers to successfully implement any of their transition and integration plans or to complete any of the Effective Time and shall not become effective until the Purchaser shall have waived or confirmed in writing the satisfaction of all conditions in its favour in the Offer and actions contemplated in this Agreement and shall have confirmed in writing that it is prepared to promptly, and without condition, proceed to effect the acquisition of the Exeter Shares;
(ii) any Pre-Acquisition Reorganization shall not require the Company to contravene any applicable Laws, its organizational documents or any Material Contract; and
(iii) the Company shall not be obligated to take any action that could result in any Taxes being imposed on, or any adverse Tax or other consequences to, any Exeter Securityholder incrementally greater than the Taxes or other consequences to such party in connection with the take-up of Exeter Shares and the consummation of the Offer in the absence of any Pre-Acquisition ReorganizationSection 6.5(b).
(c) The Purchaser acknowledges and agrees that Prior to the planning for and implementation of Closing, the parties shall discuss in good faith any Pre-Acquisition Reorganization shall not be considered a breach of any covenant potential reductions to the services provided under this the Transition Services Agreement and shall not be considered in determining whether a representation or warranty of costs therefore to account for the Company hereunder has been breached. The Purchaser activities performed by the Transferred Employees and the Company shall work cooperatively and use commercially reasonable efforts to prepare prior to the Expiry Time all documentation necessary and do such other acts and things as activities performed by Direct Employees that are necessary to give effect to such Pre-Acquisition Reorganization. For greater certainty, the Company shall not be liable for the failure of the Purchaser to benefit from any anticipated Tax efficiency as a result of a Pre-Acquisition ReorganizationTransferred Employees.
(d) The Purchaser agrees that it will be responsible for all costs and expenses associated with any Pre-Acquisition Reorganization to be carried out at its request and shall indemnify and save harmless the Company and its subsidiaries and their respective Representatives from and against any and all liabilities, losses, damages, claims, costs, expenses, interest awards, judgments and penalties suffered or incurred by any of them in connection with or as a result of any such Pre-Acquisition Reorganization (including in respect of any reversal, modification or termination of a Pre-Acquisition Reorganization) and that any Pre-Acquisition Reorganization will not be considered in determining whether a representation or warranty of the Company under this Agreement has been breached (including where any such Pre-Acquisition Reorganization requires the consent of any third party under a Contract). If the Offer is not completed, the Purchaser shall reimburse the Company forthwith for all fees and expenses (including any reasonable professional fees and expenses and taxes) incurred by the Company in considering or effecting all or any part of the Pre-Acquisition Reorganization and shall be responsible for any fees, expenses and costs (including reasonable professional fees and expenses and taxes) of the Company in reversing or unwinding any Pre-Acquisition Reorganization that was effected prior to the Expiry Time.
Appears in 1 contract
Samples: Equity Purchase Agreement (Adtalem Global Education Inc.)
Reorganization. (a) The Company shall effect such reorganization of its business, operations, subsidiaries and assets At or such other transactions (each, a “Pre-Acquisition Reorganization”) as the Purchaser may reasonably request prior to the Expiry Closing (provided that, for the avoidance of doubt, the steps with respect to any Deferred Business may be completed after Closing), the Company and the Seller shall, and shall cause their respective Subsidiaries to, use reasonable best efforts to complete the reorganization in accordance with the steps set forth in Exhibit D and to take such additional actions as may be reasonably necessary to transfer to the Acquired Companies the assets primarily related to, or used solely in connection with (or with respect to IT Assets, that is used exclusively in), the operation of the Company Business as conducted by Seller and its Affiliates prior to the Closing and that are not owned by one of the Acquired Companies as of the date hereof, including those assets that are listed or described on Section 6.14(a)(i) of the Company Disclosure Schedule (other than those Delayed-Transfer Assets or Deferred Businesses, that are unable to be transferred at or prior to Closing in accordance with this Agreement) (the “Reorganization”). Following the date of this Agreement but prior to the Closing, upon prior written notice to Purchaser, Seller shall be permitted to amend Exhibit D to the extent necessary to implement the transactions contemplated by this Agreement and the other Transaction Agreements. In furtherance of the foregoing, Seller and its Affiliates shall execute and deliver all documents, make all filings, arrange for and undertake all related actions that Seller and the Company determine to be necessary or appropriate to consummate the Reorganization (as amended pursuant to this Section 6.14). Seller or one of its Affiliates (other than an Acquired Company) shall retain all liabilities of the kind associated with determining the Legacy IBNR Accrual, and, to the extent permitted by Law, no such liabilities will transfer to Purchaser or any of the Acquired Companies in connection with the transactions contemplated by this Agreement, including the Reorganization (and any such liabilities of the Acquired Companies shall be deemed to have been transferred to Seller as of the Adjustment Time). From and after the Closing, Seller shall reimburse Purchaser and the Acquired Companies any amounts required to be paid with respect to (or otherwise indemnify and hold Purchaser and the Acquired Companies harmless from) any and all liabilities of the kind associated with determining the Legacy IBNR Accrual.
(b) Notwithstanding anything to the contrary in this Section 6.14 or elsewhere in this Agreement, there shall be excluded from the transactions contemplated by this Agreement (including the Reorganization) any asset that would otherwise be required to be transferred to the Acquired Companies in the Reorganization pursuant to Section 6.14(a) which is not assignable or transferable without the consent, approval, exemption, waiver, authorization, filing, registration or notification of any Person other than Seller or any Subsidiary of Seller or Purchaser, to the extent that such consent shall not have been given prior to the Closing (the “Delayed-Transfer Assets”); provided, however, that each of Seller and Purchaser shall have the Company need not effect a Pre-Acquisition Reorganization which would impede or materially delay continuing obligation until twelve (12) months after the take-up of Exeter Shares and the consummation of the Contemplated Transactions or that would be prejudicial Closing to the Company, its subsidiaries or the Exeter Securityholders or that would involve a material amount of the time and attention of the Company’s officers or employees.
(b) Without limiting the foregoing and other than as set forth in clause (a) above, the Company shall use its best their commercially reasonable efforts to obtain all necessary consents, approvals approvals, exemptions, waivers, authorizations or waivers from make all necessary filings, registrations or notifications to the assignment or transfer of such Delayed-Transfer Asset; provided, further, that neither Seller nor any persons of its Affiliates or Subsidiaries (excluding, for the avoidance of doubt, the Acquired Companies), shall be required to effect each Pre-Acquisition Reorganizationcompensate any third party, and the Company shall cooperate with the Purchaser commence or participate in structuring, planning and implementing any proceeding or offer or grant any accommodation (financial or otherwise) to any third party to obtain any such Pre-Acquisition Reorganization. The Purchaser shall provide written notice to the Company of any proposed Pre-Acquisition Reorganization at least ten Business Days prior to the Expiry Time. In addition:
(i) any Pre-Acquisition Reorganization shall not unreasonably interfere with the Company’s material operations prior to the Effective Time and shall not become effective until the Purchaser shall have waived third party consent or confirmed in writing the satisfaction of all conditions in its favour in the Offer and in this Agreement and shall have confirmed in writing that it is prepared to promptly, and without condition, proceed to effect the acquisition of the Exeter Shares;
(ii) any Pre-Acquisition Reorganization shall not require the Company to contravene any applicable Laws, its organizational documents or any Material Contract; and
(iii) the Company shall not be obligated to take any action that could result in any Taxes being imposed on, or any adverse Tax or other consequences to, any Exeter Securityholder incrementally greater than the Taxes or other consequences to such party otherwise in connection with Seller’s and its Affiliates’ obligations under this Section 6.14(b). Upon obtaining the takerequisite third-up of Exeter Shares and the consummation of the Offer party consents thereto, such Delayed-Transfer Assets, if otherwise includable in the absence transactions contemplated hereby, shall promptly be transferred and assigned hereunder to Purchaser or one of its Subsidiaries; provided, however, that all fees, costs and expenses incurred by any Seller, Purchaser or any of their respective Affiliates in connection with any such transfer or assignment shall be borne by Purchaser. For the avoidance of doubt, no representation, warranty or covenant of Seller or the Company contained in the Transaction Agreements shall be breached or deemed breached, and no condition shall be deemed not satisfied, and neither Seller nor any of its Affiliates shall have any liability to Purchaser or its Affiliates arising out of or relating to (A) the failure to obtain any such third-party consent or (B) any proceeding commenced or threatened by or on behalf of any PrePerson arising out of or relating to the failure to obtain any such third-Acquisition Reorganizationparty consent.
(c) The With respect to any Delayed-Transfer Asset that is not transferred or assigned to Purchaser acknowledges or one of its Subsidiaries, in the Reorganization or otherwise at the Closing by reason of Section 6.14(a), after the Closing, until any requisite consent is obtained therefor and the same is transferred and assigned to Purchaser or one of its Subsidiaries, the parties shall cooperate with each other, upon written request of Purchaser, in endeavoring to obtain for Purchaser, an arrangement with respect thereto to provide Purchaser substantially comparable benefits therein. Purchaser agrees that to indemnify the planning for Seller and implementation its Affiliates in respect of any Pre-Acquisition Reorganization shall not be considered a breach of any covenant under this Agreement and shall not be considered in determining whether a representation or warranty all liabilities of the Company hereunder has been breached. The Purchaser and the Company shall work cooperatively and use commercially reasonable efforts to prepare prior to the Expiry Time all documentation necessary and do party providing such other acts and things as are necessary to give effect to such Pre-Acquisition Reorganization. For greater certainty, the Company shall not be liable for the failure of the Purchaser to benefit from any anticipated Tax efficiency as a result of a Pre-Acquisition Reorganization.
(d) The Purchaser agrees that it will be responsible for all costs and expenses associated with any Pre-Acquisition Reorganization to be carried out at its request and shall indemnify and save harmless the Company and its subsidiaries and their respective Representatives from and against any and all liabilities, losses, damages, claims, costs, expenses, interest awards, judgments and penalties suffered or incurred by any of them in connection with or as a result of any such Pre-Acquisition Reorganization (including in respect of any reversalsuch arrangement, modification continuing operations and underlying lease, license, Contract, agreement or termination of a Pre-Acquisition Reorganization) and that any Pre-Acquisition Reorganization will not be considered in determining whether a representation or warranty of the Company under this Agreement has been breached (including where any such Pre-Acquisition Reorganization requires the consent of any third party under a Contract). If the Offer is not completed, the Purchaser shall reimburse the Company forthwith for all fees and expenses (including any reasonable professional fees and expenses and taxes) incurred by the Company in considering or effecting all or any part of the Pre-Acquisition Reorganization and shall be responsible for any fees, expenses and costs (including reasonable professional fees and expenses and taxes) of the Company in reversing or unwinding any Pre-Acquisition Reorganization that was effected prior to the Expiry Timeright.
Appears in 1 contract
Samples: Securities Purchase Agreement (Ingersoll Rand Inc.)
Reorganization. During the period from the Amendment Date through the Effective Time, unless the other parties hereto shall otherwise agree in writing, none of the Parent, the Company or any of their respective Subsidiaries (aincluding, without limitation, Sub and Sister Subsidiary) The Company shall effect such reorganization take any action, which action would, to the Knowledge of its businessParent or the Knowledge of the Company, operationsrespectively, subsidiaries jeopardize the qualification of the Merger and assets or such other transactions the Subsequent Merger (eachif consummated), taken together, as a “Pre-Acquisition Reorganization”reorganization” within the meaning of Section 368(a) as of the Purchaser may reasonably request prior Code or otherwise cause special counsel to be unable to render the Expiry Timetax opinions set forth in Section 1.16; provided, however, that nothing herein shall require any party to agree to amend the terms of this Agreement or waive any rights under this Agreement; provided, further, that the parties acknowledge that special counsel to each of Parent and the Company need will not effect a Pre-Acquisition Reorganization which would impede or materially delay be able to conclude that the take-up “continuity of Exeter Shares interest” requirement necessary for the Merger and Subsequent Merger (if consummated), taken together, to so qualify will be met, and special counsel will not be able to render the consummation of the Contemplated Transactions or that would be prejudicial to the Company, its subsidiaries or the Exeter Securityholders or that would involve a material amount of the time and attention of the Company’s officers or employees.
(b) Without limiting the foregoing and other than as tax opinions set forth in clause (a) aboveSection 1.16, the Company shall use its best efforts to obtain all necessary consentsunless, approvals or waivers from any persons to effect each Pre-Acquisition Reorganization, and the Company shall cooperate with the Purchaser in structuring, planning and implementing any such Pre-Acquisition Reorganization. The Purchaser shall provide written notice to the Company of any proposed Pre-Acquisition Reorganization at least ten Business Days prior to the Expiry Time. In addition:
(i) any Pre-Acquisition Reorganization shall not unreasonably interfere with the Company’s material operations prior to the Effective Time and shall not become effective until Time, the Purchaser shall have waived or confirmed in writing the satisfaction of all conditions in its favour in the Offer and in this Agreement and shall have confirmed in writing that it is prepared to promptly, and without condition, proceed to effect the acquisition per share fair market value of the Exeter Parent Common Stock increases so that, as of the Effective Time, the aggregate fair market value of the Per Share Stock Consideration, stated as a percentage of the aggregate fair market value of the Per Share Merger Consideration and other cash deliverable pursuant to the Merger (and any amounts to be paid with respect to Dissenting Shares;
(ii) any Pre-Acquisition Reorganization shall not require ), is sufficient to permit special counsel to each of Parent and the Company to contravene conclude that the “continuity of interest” requirement will be satisfied, and nothing herein shall be construed to require Parent, the Company, any applicable Lawsof their respective Subsidiaries, its organizational documents Sub or Sister Subsidiary to refrain from taking any Material Contract; and
(iii) the Company shall not be obligated action or to take any action that could result in any Taxes being imposed on, or any adverse Tax or other consequences to, any Exeter Securityholder incrementally greater than so as to cause the Taxes or other consequences to such party in connection with the take-up of Exeter Shares and the consummation fair market value of the Offer in Parent Common Stock to be sufficient to satisfy such requirement. Without limiting the absence of any Pre-Acquisition Reorganization.
(c) The Purchaser acknowledges and agrees that foregoing, if the planning for and implementation of any Pre-Acquisition Reorganization shall not be considered a breach of any covenant under this Agreement and shall not be considered in determining whether a representation or warranty fair market value of the Company hereunder has been breached. The Purchaser Parent Common Table of Contents Stock does not increase sufficiently to permit special counsel to each of Parent and the Company shall work cooperatively and use commercially reasonable efforts to prepare prior conclude that the “continuity of interest” requirement will be satisfied, or the “continuity of interest” requirement is otherwise not satisfied due to the Expiry Time all documentation necessary fair market value of the Parent Common Stock, no party shall be deemed to have breached any representation, covenant or agreement in this Agreement by reason of any inability of either party’s special counsel to conclude that the Merger and do Subsequent Merger (if consummated) would satisfy such other acts and things as are necessary to give effect to requirement or, in such Pre-Acquisition Reorganization. For greater certaintyevent, the Company shall not be liable for by reason of the failure of the Purchaser to benefit from any anticipated Tax efficiency as a result of a Pre-Acquisition Reorganization.
(d) The Purchaser agrees that it will be responsible for all costs and expenses associated with any Pre-Acquisition Reorganization Subsequent Merger to be carried out at its request and consummated; provided, further, that nothing in this Section 4.4 shall indemnify and save harmless be construed to require Parent to cause the Company and its subsidiaries and their respective Representatives from and against any and all liabilities, losses, damages, claims, costs, expenses, interest awards, judgments and penalties suffered or incurred by any of them in connection with or as a result of any such Pre-Acquisition Reorganization (including in respect of any reversal, modification or termination of a Pre-Acquisition Reorganization) and that any Pre-Acquisition Reorganization will not Subsequent Merger to be considered in determining whether a representation or warranty consummated except strictly upon satisfaction of the Company under this Agreement has been breached (including where any such Pre-Acquisition Reorganization requires conditions, and in accordance with the consent of any third party under a Contract). If the Offer is not completedterms of, the Purchaser shall reimburse the Company forthwith for all fees and expenses (including any reasonable professional fees and expenses and taxes) incurred by the Company in considering or effecting all or any part of the Pre-Acquisition Reorganization and shall be responsible for any fees, expenses and costs (including reasonable professional fees and expenses and taxes) of the Company in reversing or unwinding any Pre-Acquisition Reorganization that was effected prior to the Expiry TimeSection 1.16.
Appears in 1 contract
Samples: Merger Agreement (Tellabs Inc)
Reorganization. Petrominerales agrees that, upon request by Pacific Rubiales, Petrominerales shall (ai) The Company shall effect such reorganization reorganizations of its businessbusiness (including for tax purposes), operations, subsidiaries operations and assets (excluding ExploreCo Assets) or such other transactions as Pacific Rubiales may request, acting reasonably (each, each a “Pre- Acquisition Reorganization) and (ii) co-operate with Pacific Rubiales and their Representatives in order to determine the nature of the Pre-Acquisition Reorganization”) as the Purchaser may reasonably request prior to the Expiry Time; provided, however, Reorganizations that the Company need not effect a Pre-Acquisition Reorganization which would impede or materially delay the take-up of Exeter Shares might be undertaken and the consummation of the Contemplated Transactions or that would manner in which they might most effectively be prejudicial to the Company, its subsidiaries or the Exeter Securityholders or that would involve a material amount of the time and attention of the Company’s officers or employees.
(b) Without limiting the foregoing and other than as set forth in clause (a) above, the Company shall use its best efforts to obtain all necessary consents, approvals or waivers from any persons to effect each Pre-Acquisition Reorganization, and the Company shall cooperate with the Purchaser in structuring, planning and implementing any such Pre-Acquisition Reorganization. The Purchaser shall provide written notice to the Company of any proposed Pre-Acquisition Reorganization at least ten Business Days prior to the Expiry Time. In additionundertaken; provided that:
(ia) any Pre-Acquisition Reorganization shall not unreasonably interfere with the Company’s material operations prior to the Effective Time and shall not become effective until the Purchaser unless Pacific Rubiales shall have waived or confirmed in writing the satisfaction of all conditions in its favour in the Offer Section 7.1 and in this Agreement Section 7.2 and shall have confirmed in writing that it is prepared to promptly, and without conditioncondition (other than the satisfaction of the condition contemplated by Section 7.2(a)), proceed to effect the acquisition of the Exeter SharesArrangement;
(iib) any the Pre-Acquisition Reorganization shall Reorganizations are not prejudicial to Petrominerales or the Shareholders in any material respect;
(c) the Pre-Acquisition Reorganizations do not unreasonably interfere in the ongoing operations of Petrominerales;
(d) the Pre-Acquisition Reorganizations do not result in (i) any material breach by Petrominerales of any existing contract or commitment of Petrominerales; or (ii) a breach of any Law;
(e) the Pre-Acquisition Reorganizations do not require the Company approval of the Shareholders, the 2010 Debentureholders or the 2012 Debentureholders;
(f) the Pre-Acquisition Reorganizations would not reasonably be expected to contravene any applicable Laws, its organizational documents materially impede or any Material Contractdelay the completion of the Arrangement; and
(iiig) the Company Petrominerales shall not be obligated to take any action that could result in any Taxes being imposed on, or any adverse Tax or other consequences to, any Exeter Securityholder securityholder of Petrominerales incrementally greater than the Taxes or other consequences to such party in connection with the take-up of Exeter Shares and the consummation of the Offer Arrangement in the absence of any Pre-Acquisition Reorganization.
(c) The Purchaser acknowledges and agrees that the planning for and implementation . Pacific Rubiales shall provide written notice to Petrominerales of any proposed Pre-Acquisition Reorganization shall not be considered a breach at least ten business days prior to the Effective Date. Upon receipt of any covenant under this Agreement such notice, Pacific Rubiales and shall not be considered in determining whether a representation or warranty of the Company hereunder has been breached. The Purchaser and the Company Petrominerales shall work cooperatively co-operatively and use commercially reasonable efforts to prepare prior to the Expiry Time Effective Date all documentation necessary and do all such other acts and things as are necessary to give effect to such Pre-Acquisition Reorganization. For greater certaintyPacific Rubiales agrees to waive any breach of a representation, the Company shall not be liable for the failure of the Purchaser to benefit from any anticipated Tax efficiency as warranty or covenant by Petrominerales where such breach is a result of an action taken by Petrominerales in good faith pursuant to a request by Pacific Rubiales in accordance with this Section 6.2. Pacific Rubiales shall indemnify Petrominerales and its officers, directors and employees (to the extent that such employees are assessed with statutory liability therefor) for all direct and indirect costs or losses, including any adverse Tax consequences, out-of-pocket costs and expenses, including out-of-pocket legal fees and disbursements, incurred in connection with any proposed Pre-Acquisition Reorganization.
(d) The Purchaser agrees that it will be responsible for all costs and expenses associated with any Pre-Acquisition Reorganization to be carried out at its request and shall indemnify and save harmless the Company and its subsidiaries and their respective Representatives from and against any and all liabilities, losses, damages, claims, costs, expenses, interest awards, judgments and penalties suffered or incurred by any of them in connection with or as a result of any such Pre-Acquisition Reorganization (including in respect of any reversal, modification or termination of a Pre-Acquisition Reorganization) and that any Pre-Acquisition Reorganization will not be considered in determining whether a representation or warranty of the Company under this Agreement has been breached (including where any such Pre-Acquisition Reorganization requires the consent of any third party under a Contract). If the Offer is not completed, the Purchaser shall reimburse the Company forthwith for all fees and expenses (including any reasonable professional fees and expenses and taxes) incurred by the Company in considering or effecting all or any part of the Pre-Acquisition Reorganization and shall be responsible for any fees, expenses and costs (including reasonable professional fees and expenses and taxes) of the Company in reversing or unwinding any Pre-Acquisition Reorganization that was effected prior to the Expiry Time.
Appears in 1 contract
Samples: Arrangement Agreement
