Conditions to Completion. 3.1. The obligation of the Seller to sell the Sale Shares and proceed with the Completion in terms of Clause 5 of this Agreement shall be conditional on the satisfaction of following conditions, other than those which by their very nature are to be satisfied at Completion, (to the extent that they have not been waived by the Seller (other than the condition set out in Clauses 3.1(ii) below which shall not be waived), in accordance with this Agreement): (i) The Purchaser having delivered to the Seller on the Execution Date certified copies of the resolutions duly passed by its board of directors or equivalent authority approving the execution, delivery and performance by the Purchaser of the Transaction Documents. (ii) The Conclusion of the Open Offer. (iii) The Purchaser Warranties being true in all material respects as of the Completion Date, except that the Purchaser Warranties in Clauses 1 of Schedule 4 being true in all respects as of the Completion Date. (iv) The Purchaser not being in material breach of the agreements, covenants, obligations, and conditions required by this Agreement to be so performed or complied with by it, at or before the Completion Date (including, but not limited to, the obligations in respect of the Open Offer as set out in Clause 6.1 hereof). (v) Simultaneous consummation of the sale of Sale ADSs under the GA Securities Purchase Agreement (including satisfaction of the conditions to completion thereunder), provided that the Seller shall not be entitled to rely on this sub-clause (v) if the Seller is then in breach of the GA Securities Purchase Agreement. 3.2. The obligation of the Purchaser to purchase the Sale Shares and proceed with Completion in terms of Clause 5 of this Agreement shall be conditional on the satisfaction of the following conditions, other than those which by their very nature are to be satisfied at Completion, (to the extent that they have not been waived by the Purchaser (other than the condition set out in Clause 3.2 (iii) below which shall not be waived), in accordance with this Agreement): (i) The Seller having delivered to the Purchaser on the Execution Date certified copies of the resolutions duly passed by the Seller’s board of directors or equivalent authority (where applicable) approving the execution, delivery and performance by the Seller of the Agreement. (ii) The Seller Warranties being true in all material respects as of the Completion Date, except that the Seller Warranties in Clause 1.1 and Clause 2 of Part A of Schedule 3 being true in all respects as of the Completion Date. (iii) Simultaneous consummation of the transactions contemplated under the Founders’ SPA (including satisfaction of the conditions to completion thereunder). (iv) The Seller not being in material breach of the agreements, covenants, obligations, and conditions required by this Agreement to be so performed or complied with by the Seller, as applicable, at or before the Completion Date. (v) Simultaneous consummation of the sale of the Sale ADSs under the GA Securities Purchase Agreement (including satisfaction of the conditions to completion thereunder). 3.3. The obligations of the Parties to proceed with Completion in terms of Clause 5 of this Agreement shall be conditional on the following conditions, or their satisfaction subject only to Completion: (i) there not being in effect any writ, judgment, injunction, decree, or similar order of any court or other authority or law restraining or otherwise preventing consummation of the Transactions, including the actions to be taken at Completion. (ii) (a) any waiting periods under the HSR Act or other applicable Anti-trust Laws in respect of, and (b) any Approvals by any Governmental Authority required for the consummation of, the Transactions shall have been obtained, expired or terminated, as applicable. 3.4. The Purchaser shall make all reasonable efforts to achieve satisfaction of each condition set out in Clauses 3.1 and 3.3 as soon as possible after the Execution Date. 3.5. The Seller shall make all reasonable efforts to achieve satisfaction of each condition set out in Clauses 3.2 (other than Clause 3.2(iii)) and 3.3(i) as soon as possible after the Execution Date. 3.6. The Seller and the Purchaser, as the case may be, shall each notify the other promptly upon becoming aware that any of the conditions set out in Clause 3 have been satisfied or have become incapable of satisfaction or waiver, other than with respect to those conditions that have to be satisfied as of the Completion. 3.7. At any time prior to or on the Long Stop Date, to the extent permitted under Applicable Law and save as expressly provided otherwise: (i) the Purchaser may waive any condition set out in Clause 3.2 (other than Clause 3.2(iii)) by notice in writing to the Seller; and (ii) the Seller may waive any condition set out in Clause 3.1 by notice in writing to the Purchaser. 3.8. Within 3 (three) Business Days following: (i) the satisfaction or waiver (if waived by the Purchaser in accordance with this Agreement) of the last of the conditions to be satisfied by the Seller as set out in Clauses 3.2 (other than the condition set out in Clause 3.2(iii)) and 3.3(i) (other than conditions which by their very nature are to be satisfied at Completion), the Seller shall provide to the Purchaser written confirmation (in the form attached as Part A to Schedule 2) of the satisfaction or waiver of such conditions; and (ii) the satisfaction or waiver (if waived by the Seller in accordance with this Agreement) of the last of the conditions to be satisfied by the Purchaser as set out in Clauses 3.1 and 3.3 (other than conditions which by their very nature are to be satisfied at Completion), the Purchaser shall provide to the Seller a written confirmation (in the form attached as Part B to Schedule 2) of satisfaction or waiver of such conditions, each such written confirmation a “CP Confirmation Certificate”. For the avoidance of any doubt, it is clarified that if a CP Confirmation Certificate is wrongfully withheld, it shall not affect the right of the relevant Party to enforce Completion on the Completion Date in accordance with the terms of this Agreement.
Appears in 4 contracts
Sources: Share Purchase Agreement, Share Purchase Agreement (General Atlantic LLC), Share Purchase Agreement (Patni Computer Systems LTD)
Conditions to Completion. 3.1. The obligation of the Seller Sellers to sell the Sale Shares and proceed with the Completion in terms of Clause 5 of this Agreement shall be conditional on the satisfaction of following conditions, other than those which by their very nature are to be satisfied at Completion, Completion (to the extent that they have not been waived by the Seller Sellers (other than the condition conditions set out in Clauses 3.1(ii) and (iii) below which shall not be waived), in accordance with this Agreement):
(i) The Purchaser having delivered to the Seller Sellers on the Execution Date certified copies of the resolutions duly passed by its board of directors or equivalent authority approving the execution, delivery and performance by the Purchaser of the Transaction Documents.
(ii) The Purchaser having received approvals from the RBI for: (a) the acquisition of the Sale Shares from resident Sellers, where purchaser is iGATE Mauritius, and from non-resident Sellers, where purchaser is iGATE India and (b) the sale of Equity Shares owned by iSolutions, Inc., an overseas corporate body, and forming part of the Sale Shares, to iGATE Mauritius ((a) and (b) together, the “RBI Approvals”).
(iii) The Conclusion of the Open Offer.
(iiiiv) The Purchaser Warranties being true in all material respects as of the Completion Date, except that the Purchaser Warranties Warranty in Clauses Clause 1 of Schedule 4 6 being true in all respects as of the Completion Date.
(ivv) The Purchaser not being in material breach of the agreements, covenants, obligations, and conditions required by this Agreement to be so performed or complied with by it, at or before the Completion Date (including, but not limited to, the obligations in respect of the Open Offer as set out in Clause 6.1 hereof).
(v) Simultaneous consummation of the sale of Sale ADSs under the GA Securities Purchase Agreement (including satisfaction of the conditions to completion thereunder), provided that the Seller shall not be entitled to rely on this sub-clause (v) if the Seller is then in breach of the GA Securities Purchase Agreement.
3.2. The obligation of the Purchaser to purchase the Sale Shares and proceed with Completion in terms of Clause 5 of this Agreement shall be conditional on the satisfaction of the following conditions, other than those which by their very nature are to be satisfied at Completion, (to the extent that they have not been waived by the Purchaser (other than the condition set out in Clause 3.2 (iii3.2(iii) below which shall not be waived), in accordance with this Agreement):
(i) The Seller Each of the Sellers having delivered to the Purchaser on the Execution Date certified copies of the resolutions duly passed by the such Seller’s board of directors or equivalent authority (where applicable) approving the execution, delivery and performance by the such Seller of the Agreement.
(ii) The Seller Warranties being true in all material respects as of the Completion Date, except that the Seller Warranties in Clause 1.1 1.1, Clause 2 and Clause 2 3 of Part A of Schedule 3 5 being true in all respects as of the Completion Date.
(iii) The Purchaser having received the RBI Approvals.
(iv) Simultaneous consummation of the transactions contemplated under the Founders’ SPA GA SPAs (including satisfaction of the conditions to completion thereunder).
(ivv) The No Seller not being in material breach of the agreements, covenants, obligations, and conditions required by this Agreement to be so performed or complied with by the such Seller, as applicable, at or before the Completion Date.
(v) Simultaneous consummation of the sale of the Sale ADSs under the GA Securities Purchase Agreement (including satisfaction of the conditions to completion thereunder).
3.3. The obligations of the Parties to proceed with Completion in terms of Clause 5 of this Agreement shall be conditional on the following conditions, or their satisfaction subject only to Completion:
(i) there not being in effect any writ, judgment, injunction, decree, or similar order of any court or other authority or law restraining or otherwise preventing the consummation of the Transactions, including the actions to be taken at Completion.
(ii) (a) any waiting periods under the HSR Act or other applicable Anti-trust Laws in respect of, and (b) any Approvals by any Governmental Authority required for the consummation of, the Transactions shall have been obtained, expired or terminated, as applicable.
3.4. The Purchaser shall make all reasonable efforts to achieve satisfaction of each condition set out in Clauses 3.1 and 3.3 as soon as possible after the Execution Date.
3.5. The Each Seller shall make all reasonable efforts to achieve satisfaction of each condition set out in Clauses 3.2 (other than Clause 3.2(iii)) and 3.3(i) as soon as possible after the Execution Date.
3.6. The Seller Sellers and the Purchaser, as the case may be, shall each notify the other other, promptly upon becoming aware that any of the conditions set out in Clause 3 have been satisfied or have become incapable of satisfaction or waiver, other than with respect to those conditions that have to be satisfied as of the Completion.
3.7. At any time prior to or on the Long Stop Date, to the extent permitted under Applicable Law and save as expressly provided otherwise:
(i) the Purchaser may waive any condition set out in Clause 3.2 (other than Clause 3.2(iii)) by notice in writing to the SellerSellers; and
(ii) the Seller Sellers’ Representatives may waive any condition set out in Clause 3.1 by notice in writing to the Purchaser.
3.8. Within 3 (three) Business Days following:
(i) the satisfaction or waiver (if waived by the Purchaser in accordance with this Agreement) of the last of the conditions to be satisfied by the Seller Sellers as set out in Clauses 3.2 (other than the condition set out in Clause 3.2(iii)) and 3.3(i) (other than conditions which by their very nature are to be satisfied at Completion), the Seller Sellers shall provide to the Purchaser written confirmation (in the form attached as Part A to Schedule 24) of the satisfaction or waiver of such conditionsthe conditions set out in Clauses 3.2 and 3.3(i); and
(ii) the satisfaction or waiver (if waived by the Seller Sellers in accordance with this Agreement) of the last of the conditions to be satisfied by the Purchaser as set out in Clauses 3.1 and 3.3 (other than conditions which by their very nature are to be satisfied at Completion), the Purchaser shall provide to the Seller Sellers a written confirmation (in the form attached as Part B to Schedule 24) of satisfaction or waiver of such conditionsconditions set out in Clauses 3.1 and 3.3, each such written confirmation a “CP Confirmation Certificate”. For the avoidance of any doubt, it is clarified that if a CP Confirmation Certificate is wrongfully withheld, it shall not affect the right of the relevant Party to enforce Completion on the Completion Date in accordance with the terms of this Agreement.
Appears in 3 contracts
Sources: Share Purchase Agreement, Share Purchase Agreement (Patni Computer Systems LTD), Share Purchase Agreement (Igate Corp)
Conditions to Completion. 3.1. The obligation of the Seller to sell the Sale Shares ADSs and proceed with the Completion in terms of Clause 5 of this Agreement shall be conditional on the satisfaction of following conditions, other than those which by their very nature are to be satisfied at Completion, (to the extent that they have not been waived by the Seller (other than the condition set out in Clauses 3.1(ii) below which shall not be waived), in accordance with this Agreement):
(i) The Purchaser having delivered to the Seller on the Execution Date certified copies of the resolutions duly passed by its board of directors or equivalent authority approving the execution, delivery and performance by the Purchaser of the Transaction Documents.
(ii) The Conclusion of the Open Offer.
(iii) The Purchaser Warranties being true in all material respects as of the Completion Date, except that the Purchaser Warranties in Clauses Clause 1 of Schedule 4 being true in all respects as of the Completion Date.
(iv) The Purchaser not being in material breach of the agreements, covenants, obligations, and conditions required by this Agreement to be so performed or complied with by it, at or before the Completion Date (including, but not limited to, the obligations in respect of the Open Offer as set out in Clause 6.1 hereof).
(v) Simultaneous consummation of the sale of Sale ADSs Shares under the GA Securities Share Purchase Agreement (including satisfaction of the conditions to completion thereunder), provided that the Seller shall not be entitled to rely on this sub-clause (v) if the Seller is then in breach of the GA Securities Share Purchase Agreement.
3.2. The obligation of the Purchaser to purchase the Sale Shares ADSs and proceed with Completion in terms of Clause 5 of this Agreement shall be conditional on the satisfaction of the following conditions, other than those which by their very nature are to be satisfied at Completion, (to the extent that they have not been waived by the Purchaser (other than the condition set out in Clause 3.2 (iii) below which shall not be waived), in accordance with this Agreement):
(i) The Seller having delivered to the Purchaser on the Execution Date certified copies of the resolutions duly passed by the Seller’s board of directors or equivalent authority (where applicable) approving the execution, delivery and performance by the Seller of the Agreement.
(ii) The Seller Warranties being true in all material respects as of the Completion Date, except that the Seller Warranties in Clause 1.1 1.1, Clause 2 and Clause 2 3 of Part A of Schedule 3 being true in all respects as of the Completion Date.
(iii) Simultaneous consummation of the transactions contemplated under the Founders’ SPA (including satisfaction of the conditions to completion thereunder).
(iv) The Seller not being in material breach of the agreements, covenants, obligations, and conditions required by this Agreement to be so performed or complied with by the Seller, as applicable, at or before the Completion Date.
(v) Simultaneous consummation of the sale of the Sale ADSs Shares under the GA Securities Share Purchase Agreement (including satisfaction of the conditions to completion thereunder).
3.3. The obligations of the Parties to proceed with Completion in terms of Clause 5 of this Agreement shall be conditional on the following conditions, or their satisfaction subject only to Completion:
(i) there not being in effect any writ, judgment, injunction, decree, or similar order of any court or other authority or law restraining or otherwise preventing consummation of the Transactions, including the actions to be taken at Completion.
(ii) (a) any waiting periods under the HSR Act or other applicable Anti-trust Laws in respect of, and (b) any Approvals required by any Governmental Authority required for the consummation of, the Transactions shall have been obtained, expired or terminated, as applicable.
3.4. The Purchaser shall make all reasonable efforts to achieve satisfaction of each condition set out in Clauses 3.1 and 3.3 as soon as possible after the Execution Date.
3.5. The Seller shall make all reasonable efforts to achieve satisfaction of each condition set out in Clauses 3.2 (other than Clause 3.2(iii)) and 3.3(i) as soon as possible after the Execution Date.
3.6. The Seller and the Purchaser, as the case may be, shall each notify the other promptly upon becoming aware that any of the conditions set out in Clause 3 have been satisfied or have become incapable of satisfaction or waiver, other than with respect to those conditions that have to be satisfied as of the Completion.
3.7. At any time prior to or on the Long Stop Date, to the extent permitted under Applicable Law and save as expressly provided otherwise:
(i) the Purchaser may waive any condition set out in Clause 3.2 (other than Clause 3.2(iii)) by notice in writing to the Seller; and
(ii) the Seller may waive any condition set out in Clause 3.1 by notice in writing to the Purchaser.
3.8. Within 3 (three) Business Days following:
(i) the satisfaction or waiver (if waived by the Purchaser in accordance with this Agreement) of the last of the conditions to be satisfied by the Seller as set out in Clauses 3.2 (other than the condition set out in Clause 3.2(iii)) and 3.3(i) (other than conditions which by their very nature are to be satisfied at Completion), the Seller shall provide to the Purchaser written confirmation (in the form attached as Part A to Schedule 2) of the satisfaction or waiver of such conditions; and
(ii) the satisfaction or waiver (if waived by the Seller in accordance with this Agreement) of the last of the conditions to be satisfied by the Purchaser as set out in Clauses 3.1 and 3.3 (other than conditions which by their very nature are to be satisfied at Completion), the Purchaser shall provide to the Seller a written confirmation (in the form attached as Part B to Schedule 2) of satisfaction or waiver of such conditions, each such written confirmation a “CP Confirmation Certificate”. For the avoidance of any doubt, it is clarified that if a CP Confirmation Certificate is wrongfully withheld, it shall not affect the right of the relevant Party to enforce Completion on the Completion Date in accordance with the terms of this Agreement.
Appears in 3 contracts
Sources: Securities Purchase Agreement (Patni Computer Systems LTD), Securities Purchase Agreement (General Atlantic LLC), Securities Purchase Agreement (Igate Corp)
Conditions to Completion. 3.1. The obligation of the Seller to sell the Sale Shares and proceed with the 4.1 Completion in terms of Clause 5 of this Agreement shall be conditional on the satisfaction of following conditions, other than those which by their very nature are to be satisfied at Completion, (to the extent that they have not been waived by the Seller (other than the condition set out in Clauses 3.1(ii) below which shall not be waived), in accordance with this Agreement):
(i) The Purchaser having delivered to the Seller on the Execution Date certified copies of the resolutions duly passed by its board of directors or equivalent authority approving the execution, delivery and performance by the Purchaser of the Transaction Documents.
(ii) The Conclusion of the Open Offer.
(iii) The Purchaser Warranties being true in all material respects as of the Completion Date, except that the Purchaser Warranties in Clauses 1 of Schedule 4 being true in all respects as of the Completion Date.
(iv) The Purchaser not being in material breach of the agreements, covenants, obligations, and conditions required by this Agreement to be so performed or complied with by it, at or before the Completion Date (including, but not limited to, the obligations in respect of the Open Offer as set out in Clause 6.1 hereof).
(v) Simultaneous consummation of the sale of Sale ADSs under the GA Securities Purchase Agreement (including satisfaction of the conditions to completion thereunder), provided that the Seller shall not be entitled to rely on this sub-clause (v) if the Seller is then in breach of the GA Securities Purchase Agreement.
3.2. The obligation of the Purchaser to purchase the Sale Shares and proceed with Completion in terms of Clause 5 of this Agreement shall be conditional on the satisfaction of the following conditions, other than those which by their very nature are to be satisfied at Completion, (to the extent that they have not been waived by the Purchaser (other than the condition set out in Clause 3.2 (iii) below which shall not be waived), in accordance with this Agreement):
(i) The Seller having delivered to the Purchaser on the Execution Date certified copies of the resolutions duly passed by the Seller’s board of directors or equivalent authority (where applicable) approving the execution, delivery and performance by the Seller of the Agreement.
(ii) The Seller Warranties being true in all material respects as of the Completion Date, except that the Seller Warranties in Clause 1.1 and Clause 2 of Part A of Schedule 3 being true in all respects as of the Completion Date.
(iii) Simultaneous consummation of the transactions contemplated under the Founders’ SPA (including satisfaction of the conditions to completion thereunder).
(iv) The Seller not being in material breach of the agreements, covenants, obligations, and conditions required by this Agreement to be so performed or complied with by the Seller, as applicable, at or before the Completion Date.
(v) Simultaneous consummation of the sale of the Sale ADSs under the GA Securities Purchase Agreement (including satisfaction of the conditions to completion thereunder).
3.3. The obligations of the Parties to proceed with Completion in terms of Clause 5 of this Agreement shall be conditional on the following conditionsevents occurring (the “Conditions” and each a “Condition”):
4.1.1 in the case of Subscription Completion, or their satisfaction subject only SPA Completion and Merger Completion:
(a) the regulatory approvals by the relevant Regulatory Authorities listed in paragraph 1 of Schedule 2 shall have been obtained (the “MGA Regulatory Conditions”);
(b) the regulatory approvals by the relevant Regulatory Authorities listed in paragraph 2 of Schedule 2 shall have been obtained (the “Balance Sheet Regulatory Conditions”);
(c) the regulatory approvals by the relevant Regulatory Authorities for the Binder Agreements shall have been obtained, with such changes (if any) to Completionthe Binder Agreements as may be required by Regulatory Authorities; provided that such changes do not constitute a Burdensome Condition (the “Binder Agreements Condition” and together with the Balance Sheet Regulatory Conditions, the “Balance Sheet Conditions”);
(d) the Company Shareholder Approval (as defined in the Merger Agreement) shall have been obtained in accordance with the terms of the Merger Agreement;
(e) A.M. Best Company, Inc.:
(i) there not being in effect any writ, judgment, injunction, decree, or similar order of any court or other authority or law restraining or otherwise preventing consummation of the Transactions, including the actions to be taken at Completion.
(ii) (a) any waiting periods under the HSR Act or other applicable Anti-trust Laws in respect of, and (b) any Approvals by any Governmental Authority required for the consummation of, the Transactions shall have provided written notice to FIHL that FIHL (1) has been obtained, expired assigned a financial strength rating of at least “A-” following Completion or terminated, as applicable.
3.4. The Purchaser shall make all reasonable efforts to achieve satisfaction (2) will be assigned a financial strength rating of each condition set out in Clauses 3.1 and 3.3 as soon as possible after the Execution Date.
3.5. The Seller shall make all reasonable efforts to achieve satisfaction of each condition set out in Clauses 3.2 (other than Clause 3.2(iii)) and 3.3(i) as soon as possible after the Execution Date.
3.6. The Seller and the Purchaser, as the case may be, shall each notify the other promptly upon becoming aware that any of the conditions set out in Clause 3 have been satisfied or have become incapable of satisfaction or waiver, other than with respect to those conditions that have to be satisfied as of the at least “A-” immediately following Completion.
3.7. At any time prior to or on the Long Stop Date, to the extent permitted under Applicable Law and save as expressly provided otherwise:
(i) the Purchaser may waive any condition set out in Clause 3.2 (other than Clause 3.2(iii)) by notice in writing to the Seller; and
(ii) the Seller may waive any condition set out in Clause 3.1 by if FIHL has been assigned a financial strength rating of “A-” following Completion or will be assigned a financial strength rating of “A-” immediately following Completion, shall not have given oral or written notice in writing to FIHL (which written notice FIHL shall promptly deliver to the Purchaser.Investors and Topco) or written notice to any of the Investors that any such ratings will be downgraded, suspended, withdrawn or retracted; for the avoidance of doubt, such condition shall not be satisfied if such financial strength rating is “A-” with a negative outlook or negative watch;
3.8. Within 3 (threef) Business Days followingS&P Global, Inc.:
(i) the satisfaction shall have provided written notice to FIHL that FIHL (1) has been assigned a financial strength rating of at least “A-” with a negative outlook or waiver negative watch following Completion or (if waived by the Purchaser in accordance with this Agreement) of the last of the conditions to be satisfied by the Seller as set out in Clauses 3.2 (other than the condition set out in Clause 3.2(iii)) and 3.3(i) (other than conditions which by their very nature are to be satisfied at Completion), the Seller shall provide to the Purchaser written confirmation (in the form attached as Part A to Schedule 2) will be assigned a financial strength rating of the satisfaction at least “A-” with a negative outlook or waiver of such conditionsnegative watch immediately following Completion; and
(ii) if FIHL has been assigned a financial strength rating of “A-” with a negative outlook or negative watch following Completion or will be assigned a financial strength rating of “A-” with a negative outlook or negative watch immediately following Completion, shall not have given oral or written notice to FIHL (which written notice FIHL shall promptly deliver to the satisfaction Investors and Topco) or waiver written notice to any of the Investors that any such ratings will be downgraded, suspended, withdrawn or retracted;
(g) with respect to the Investors only, no actions, conditions, limitations, qualifications, restrictions or requirements shall have been imposed that, individually or in the aggregate would or would reasonably be expected to:
(i) with respect to changes to the Binder Agreements as may be required by Regulatory Authorities (a “Regulatory Binder Change”), (x) result in a decrease of more than $[******] in the enterprise value of the MGA Group due to a Regulatory Binder Change to the economic terms of the Binder Agreements (the “EV Change”) as determined by comparing:
(A) the enterprise value of the MGA Group on the basis of the Binder Agreements without such Regulatory Binder Change as of the most recent practicable date (the “EV Test Date”) and taking into account no changes to the enterprise value of the MGA Group that arise for any reason other than as a result of such Regulatory Binder Change; to
(B) the enterprise value of the MGA Group on the basis of the Binder Agreements with such Regulatory Binder Change as of the EV Test Date and taking into account no changes to the enterprise value of the MGA Group that arise for any reason other than as a result of such Regulatory Binder Change; or (y) have any negative impact on the term or termination provisions of the Binder Agreements that is material, provided, in the event of an EV Change due to a Regulatory Binder Change to the economic terms of the Binder Agreements, the Aggregate Merger Consideration (as defined in the Merger Agreement) and the MGA Holdco Consideration (as defined in the SPAs) shall be reduced by an amount equal to (A) any EV Change in excess of $[******], if waived any, and less than or equal to $[******] (calculated on the excess only) plus (B) fifty (50) per cent. of any EV Change in excess $[******], if any, and less than or equal to $[******] (calculated on the excess only);
(ii) require any member of the Investors’ Group to sell, hold, divest, discontinue or limit any assets, businesses or interests;
(iii) require any member of the Investors’ Group to agree to any conditions relating to, or changes or restrictions in, its operations of any assets, business or interests; or
(iv) require the contribution of capital or the provision of any guarantee, keep well or capital or surplus maintenance agreement, or pledge of assets or similar arrangement by any member of the Investors’ Group (excluding, for the avoidance of doubt, the capitalisation of the MGA Group by FIHL or its subsidiaries on or prior to Completion) ((i), (ii), (iii) or (iv), a “Burdensome Condition”); provided, that any potential Burdensome Condition that is waived, consented to or accepted by the Seller Investors’ Representative shall not constitute a Burdensome Condition for any purpose in this Agreement;
(h) Bidco has, or will concurrently with the Completion, draw down under the Facilities on substantially the terms and conditions set out in the Debt Commitment Letter;
(i) there shall not have occurred any effect, change, event, circumstance, state of facts, development, or occurrence that has had, or would reasonably be expected to result in, individually or in the aggregate, a Material Adverse Effect; and
(j) to the extent that the United Kingdom Competition and Markets Authority (the “CMA”) has either: (i) issued a written request for information to any Party in respect of the Transactions in accordance with Part 3 of the Enterprise Act 2002 but not yet confirmed that it has no further questions at this stage in respect of the Transactions; or (ii) commenced, or given written notice to any Party that it intends to commence, a Phase 1 merger investigation in respect of the Transactions, the respective obligations of each Party to effect the Completion shall be conditional upon the CMA confirming that either: (a) it has no further questions at this stage in respect of the Transactions; or (b) it will not make a reference of the Transactions (or any matter arising therefrom) in accordance with sections 22 or 33 of the Enterprise Act 2002 to the chair of the CMA for the constitution of a group under Schedule 4 to the Enterprise and Regulatory Reform Act 2013; or (c) if such a reference takes place, the CMA having issued a report concluding that the Transactions (or any matter therefrom) may not be expected to result in a substantial lessening of competition within any market or markets in the United Kingdom (the “CMA Condition”), provided that the Parties undertake to use all reasonable endeavours to respond to the CMA with any information it requires from any Party in order to satisfy the CMA Condition as soon as reasonably possible and in any event before the Long Stop Date.
4.1.2 in the case of Subscription Completion:
(a) the Binder Agreements having been entered into with such changes (if any) to the Binder Agreements as may be required by Regulatory Authorities; provided that such changes do not constitute a Burdensome Condition; and
(b) the Reorganisation shall have been effected in accordance with the Structure Steps Plan and Clause 2.5 up to and including Structure Step 21 and the steps following Structure Step 22 in the Structure Steps Plan shall be capable of being implemented and shall have become unconditional subject to Clause 2.5 and other than in respect of the condition that the Structure Steps prior to Structure Step 22 have been effected;
4.1.3 in the case of SPA Completion:
(a) Subscription Completion having occurred; and
(b) the Reorganisation shall have been effected in accordance with the Structure Steps Plan up to and including Structure Step 22 and the steps following Structure Step 23 in the Structure Steps Plan shall be capable of being implemented and shall have become unconditional other than in respect of the condition that the Structure Steps prior to Structure Step 23 have been effected;
4.1.4 in the case of the completion of the distribution pursuant to Structure Step 31:
(a) each Structure Step prior to Structure Step 31 having been completed in full and in accordance with the Structure Steps Plan; and
(b) the Company Shareholder Approval (as defined in the Merger Agreement) of the last of the conditions to be satisfied by the Purchaser as set out in Clauses 3.1 and 3.3 (other than conditions which by their very nature are to be satisfied at Completion), the Purchaser shall provide to the Seller a written confirmation (in the form attached as Part B to Schedule 2) of satisfaction or waiver of such conditions, each such written confirmation a “CP Confirmation Certificate”. For the avoidance of any doubt, it is clarified that if a CP Confirmation Certificate is wrongfully withheld, it shall not affect the right of the relevant Party to enforce Completion on the Completion Date have been obtained in accordance with the terms of this the Merger Agreement; and
4.1.5 in the case of Merger Completion:
(a) SPA Completion having occurred; and
(b) the Reorganisation shall have been effected in accordance with the Structure Steps Plan up to and including Structure Step 31 and the steps following Structure Step 32 in the Structure Steps Plan shall be capable of being implemented and shall have become unconditional other than in respect of the condition that the Structure Steps prior to Structure Step 32 have been effected (Clauses 4.1.2(b), 4.1.3(b), 4.1.4(b) and 4.1.5(b), the “Reorganisation Conditions”).
Appears in 2 contracts
Sources: Cooperation Agreement (Fidelis Insurance Holdings LTD), Cooperation Agreement (Fidelis Insurance Holdings LTD)
Conditions to Completion. 3.1. The obligation Conditions
2.1 Completion is conditional upon:
2.1.1 the approval of shareholders of the Seller Purchaser in general meeting being obtained under ASX Listing Rule 7.1 for the issue of up to sell 33,000,000 shares in the Sale Shares Purchaser to the Vendors and proceed with the Minority Shareholders on the terms set out in this Agreement;
2.1.2 each Warranty being true, accurate and not misleading as at Completion in terms of Clause 5 and at all times between the date of this Agreement shall be conditional on and Completion;
2.1.3 the satisfaction Vendors performing all of following conditionstheir obligations contained in this Agreement;
2.1.4 no disclosure being made, or arising from the Purchaser’s due diligence, and no other than those event occurring which by their very nature are to be satisfied at Completion, (materially adversely affects the value of the Sale Shares;
2.1.5 the Vendors providing to the extent that they have not been waived by the Seller (other than the condition set out in Clauses 3.1(ii) below which shall not be waived), in accordance with this Agreement):
(i) The Purchaser having delivered to the Seller on the Execution Date certified copies of the resolutions duly passed by its board of directors or equivalent authority approving the execution, delivery and performance a legal opinion from a US law firm approved by the Purchaser confirming that the Vendors have authority to enter into this Agreement, that all signatories of the Transaction Documents.Vendor have been duly authorised, and that the Company is in good standing;
(ii) The Conclusion 2.1.6 the Vendors and the Purchaser agreeing on the amount of the Open Offer.▇▇▇▇ ▇▇▇▇▇▇;
(iii) The Purchaser Warranties being true in all material respects as of 2.1.7 the Completion Date, except that Vendors providing to the Purchaser Warranties in Clauses 1 of Schedule 4 being true in all respects as of the Completion Date.
(iv) The Purchaser not being in material breach of the agreements, covenants, obligations, and conditions required by this Agreement evidence satisfactory to be so performed or complied with by it, at or before the Completion Date (including, but not limited to, the obligations in respect of the Open Offer as set out in Clause 6.1 hereof).
(v) Simultaneous consummation of the sale of Sale ADSs under the GA Securities Purchase Agreement (including satisfaction of the conditions to completion thereunder), provided that the Seller shall not be entitled to rely on this sub-clause (v) if the Seller is then in breach of the GA Securities Purchase Agreement.
3.2. The obligation of the Purchaser to purchase the Sale Shares and proceed with Completion in terms of Clause 5 of this Agreement shall be conditional on the satisfaction of the following conditions, other than those which by their very nature are to be satisfied at Completion, (to the extent that they have not been waived by the Purchaser (other than acting reasonably) that any obligation or loan of the condition set out in Clause 3.2 (iii) below which shall Company will not be waived), in accordance with this Agreement):
(i) The Seller having delivered subject to the Purchaser on the Execution Date certified copies of the resolutions duly passed by the Seller’s board of directors or equivalent authority (where applicable) approving the execution, delivery and performance by the Seller of the Agreement.
(ii) The Seller Warranties being true in all material respects acceleration as of the Completion Date, except that the Seller Warranties in Clause 1.1 and Clause 2 of Part A of Schedule 3 being true in all respects as of the Completion Date.
(iii) Simultaneous consummation of the transactions contemplated under the Founders’ SPA (including satisfaction of the conditions to completion thereunder).
(iv) The Seller not being in material breach of the agreements, covenants, obligations, and conditions required by this Agreement to be so performed or complied with by the Seller, as applicable, at or before the Completion Date.
(v) Simultaneous consummation a result of the sale of the Sale ADSs under Shares to the GA Securities Purchase Agreement (including satisfaction Purchaser or the replacement of the conditions guarantees pursuant to completion thereunder).clause 4.6;
3.3. The obligations 2.1.8 no disclosure being made, or arising from the Vendors’ due diligence which materially adversely affects the value of the Parties ordinary shares in the Purchaser;
2.1.9 the Purchaser providing to proceed with the Vendors a legal opinion from ▇▇▇▇▇▇▇▇ Fox confirming that the Purchaser has authority to enter into this Agreement, that all signatories of the Purchaser have been duly authorised, and that the Company is duly incorporated;
2.1.10 each Purchaser warranty set out in clause 6.8 being true, accurate and not misleading as at Completion in terms of Clause 5 and at all times between the date of this Agreement shall be conditional on and Completion; and
2.1.11 the following conditionsPurchaser performing all of its obligations contained in this Agreement.
2.2 The Conditions set out in clauses 2.1.2, or their satisfaction subject only to Completion:
(i) there not being in effect any writ2.1.3, judgment2.1.4, injunction, decree, or similar order of any court or other authority or law restraining or otherwise preventing consummation 2.1.5 ,2.1.6 and 2.1.7 are imposed for the benefit of the Transactions, including Purchaser and the actions Purchaser may in its absolute discretion waive all or any of those Conditions by notice to be taken at the Vendors on or before Completion.
(ii) (a) any waiting periods under the HSR Act or other applicable Anti-trust Laws in respect of, and (b) any Approvals by any Governmental Authority required for the consummation of, the Transactions shall have been obtained, expired or terminated, as applicable.
3.4. 2.3 The Purchaser shall make all reasonable efforts to achieve satisfaction of each condition Conditions set out in Clauses 3.1 clauses 2.1.8, 2.1.9, 2.1.10 and 3.3 as soon as possible after 2.1.11 are imposed for the Execution Date.
3.5. The Seller shall make all reasonable efforts to achieve satisfaction benefit of each condition set out in Clauses 3.2 (other than Clause 3.2(iii)) and 3.3(i) as soon as possible after the Execution Date.
3.6. The Seller Vendors and the Purchaser, as the case Vendors may be, shall each notify the other promptly upon becoming aware that in their absolute discretion waive all or any of the conditions set out in Clause 3 have been satisfied or have become incapable of satisfaction or waiver, other than with respect to those conditions that have to be satisfied as of the Completion.
3.7. At any time prior to or on the Long Stop Date, to the extent permitted under Applicable Law and save as expressly provided otherwise:
(i) the Purchaser may waive any condition set out in Clause 3.2 (other than Clause 3.2(iii)) Conditions by notice in writing to the Seller; and
(ii) the Seller may waive any condition set out in Clause 3.1 by notice in writing to the Purchaser.
3.8. Within 3 (three) Business Days following:
(i) the satisfaction or waiver (if waived by the Purchaser in accordance with this Agreement) of the last of the conditions to be satisfied by the Seller as set out in Clauses 3.2 (other than the condition set out in Clause 3.2(iii)) and 3.3(i) (other than conditions which by their very nature are to be satisfied at Completion), the Seller shall provide to the Purchaser written confirmation (in the form attached as Part A to Schedule 2) of the satisfaction on or waiver of such conditions; and
(ii) the satisfaction or waiver (if waived by the Seller in accordance with this before Completion. Share Purchase Agreement) of the last of the conditions to be satisfied by the Purchaser as set out in Clauses 3.1 and 3.3 (other than conditions which by their very nature are to be satisfied at Completion), the Purchaser shall provide to the Seller a written confirmation (in the form attached as Part B to Schedule 2) of satisfaction or waiver of such conditions, each such written confirmation a “CP Confirmation Certificate”. For the avoidance of any doubt, it is clarified that if a CP Confirmation Certificate is wrongfully withheld, it shall not affect the right of the relevant Party to enforce Completion on the Completion Date in accordance with the terms of this Agreement.
Appears in 2 contracts
Sources: Share Purchase Agreement (Unilife Corp), Share Purchase Agreement (Unilife Corp)
Conditions to Completion. 3.1.
3.1 The obligations of the Purchaser to proceed to Completion, in all respects, is conditional upon the fulfillment to the satisfaction of the Purchaser, or the waiver by the Purchaser (except where prohibited by Applicable Law), of the following conditions precedent (“Seller Conditions Precedent”) and the condition set out in Clause 3.3:
(a) the Seller’s Warranties being true, accurate, complete and not misleading in all respects as at the date hereof and at the Completion Date, and there having been no breach of any obligations of the Seller under this Agreement;
(b) no injunction, restraining order or other order or any other legal or regulatory restraint or prohibition being in effect or having been issued or made by any court of competent jurisdiction or any other Person which prevents or restricts Completion or the consummation of the transactions and arrangements contemplated in this Agreement; and
(c) the Seller having obtained all corporate approvals and Government Approvals (if applicable) and approvals under the Shareholders' Agreement and the Articles of Association required by it in order to perform its obligations under this Agreement, including the sale of the Sale Shares in the manner set out under this Agreement.
(d) the Seller shall procure and deliver to the Purchaser a report from a Big4 Accounting Firm certifying (i) the status of Tax Proceedings pending against such Seller, (ii) that all undisputed claims of Tax under the IT Act have been duly discharged; and (iii) tha t there are no disputed Tax Claims under the IT Act (‘281 Report’);
(e) the Seller shall procure and deliver to the Purchaser a report on Capital Gains Tax in a ccordance with the provisions of the IT Act read with the Income-tax Rules, 1962 (‘th e IT Rules’) from a Big4 Accounting Firm with respect to Consideration; and
(f) the Seller shall procure and deliver to the Purchaser a reliance letter issued by the Big 4 Firm covering the 281 Report and Capital Gain Tax report.
3.2 The obligation of the Seller to sell proceed with Completion with the Purchaser is conditional upon the fulfillment to the reasonable satisfaction of the Seller, or the waiver by the Seller, of the following conditions precedent (“Purchaser Conditions Precedent”):
(a) the Purchaser’s warranties in Clause 5.4 being true, accurate, complete and not misleading in all respects at the Completion Date, and there having been no material breach of any obligations of the Purchaser under this Agreement;
(b) no injunction, restraining order or other order or any other legal or regulatory restraint or prohibition being in effect or having been issued or made by any court of competent jurisdiction or any other Person which prevents or restricts Completion or the consummation of the transactions and arrangements contemplated in the Agreement as between the Seller and the Purchaser; and
(c) the Purchaser having obtained all corporate approvals, Governmental Approvals (if applicable), and approvals under the Shareholders' Agreement and the Articles of Association required by it in order to perform its obligations under this Agreement, including the purchase of the Sale Shares and proceed with payment of Consideration in the Completion in terms of Clause 5 of this Agreement shall be conditional on the satisfaction of following conditions, other than those which by their very nature are to be satisfied at Completion, (to the extent that they have not been waived by the Seller (other than the condition manner set out in Clauses 3.1(ii) below which shall not be waived), in accordance with this Agreement):
(i) The Purchaser having delivered to the Seller on the Execution Date certified copies of the resolutions duly passed by its board of directors or equivalent authority approving the execution, delivery and performance by the Purchaser of the Transaction Documents.
(ii) The Conclusion of the Open Offer.
(iii) The Purchaser Warranties being true in all material respects as of the Completion Date, except that the Purchaser Warranties in Clauses 1 of Schedule 4 being true in all respects as of the Completion Date.
(iv) The Purchaser not being in material breach of the agreements, covenants, obligations, and conditions required by this Agreement to be so performed or complied with by it, at or before the Completion Date (including, but not limited to, the obligations in respect of the Open Offer as set out in Clause 6.1 hereof).
(v) Simultaneous consummation of the sale of Sale ADSs under the GA Securities Purchase Agreement (including satisfaction of the conditions to completion thereunder), provided that the Seller shall not be entitled to rely on this sub-clause (v) if the Seller is then in breach of the GA Securities Purchase Agreement.
3.2. 3.3 The obligation of the Purchaser to purchase the Sale Shares and proceed with Completion in terms of Clause 5 of this Agreement shall be conditional on the satisfaction of the following conditions, other than those which by their very nature are to be satisfied at Completion, (to the extent that they have not been waived by the Purchaser (other than the condition set out in Clause 3.2 (iii) below which shall not be waived), in accordance with this Agreement):
(i) The Seller having delivered to the Purchaser on the Execution Date certified copies of the resolutions duly passed by the Seller’s board of directors or equivalent authority (where applicable) approving the execution, delivery and performance by the Seller of the Agreement.
(ii) The Seller Warranties being true in all material respects as of the Completion Date, except that the Seller Warranties in Clause 1.1 and Clause 2 of Part A of Schedule 3 being true in all respects as of the Completion Date.
(iii) Simultaneous consummation of the transactions contemplated under the Founders’ SPA (including satisfaction of the conditions to completion thereunder).
(iv) The Seller not being in material breach of the agreements, covenants, obligations, and conditions required by this Agreement to be so performed or complied with by the Seller, as applicable, at or before the Completion Date.
(v) Simultaneous consummation of the sale of the Sale ADSs under the GA Securities Purchase Agreement (including satisfaction of the conditions to completion thereunder).
3.3. The obligations of the Parties to proceed with Completion in terms of Clause 5 of this Agreement shall be conditional on the following conditions, or their satisfaction subject only to Completion:
(i) there not being in effect any writ, judgment, injunction, decree, or similar order of any court or other authority or law restraining or otherwise preventing consummation of the Transactions, including the actions to be taken at Completion.
(ii) (a) any waiting periods under the HSR Act or other applicable Anti-trust Laws in respect of, and (b) any Approvals by any Governmental Authority required for the consummation of, the Transactions shall have been obtained, expired or terminated, as applicable.
3.4. The Purchaser shall make all reasonable efforts to achieve satisfaction of each condition set out in Clauses 3.1 and 3.3 as soon as possible after the Execution Date.
3.5. The Seller shall make all reasonable efforts to achieve satisfaction of each condition set out in Clauses 3.2 (other than Clause 3.2(iii)) and 3.3(i) as soon as possible after the Execution Date.
3.6. The Seller and the Purchaser, as the case may be, shall each notify the other promptly upon becoming aware that any of the conditions set out in Clause 3 have been satisfied or have become incapable of satisfaction or waiver, other than with respect to those conditions that have to be satisfied as of the Completion.
3.7. At any time prior to or on the Long Stop Date, to the extent permitted under Applicable Law and save as expressly provided otherwise:
(i) the Purchaser may waive any condition set out in Clause 3.2 (other than Clause 3.2(iii)) by notice in writing to the Seller; and
(ii) the Seller may waive any condition set out in Clause 3.1 by notice in writing to the Purchaser.
3.8. Within 3 (three) Business Days following:
(i) the satisfaction or waiver (if waived by the Purchaser in accordance with this Agreement) of the last of the conditions to be satisfied by the Seller as set out in Clauses 3.2 (other than the condition set out in Clause 3.2(iii)) and 3.3(i) (other than conditions which by their very nature are to be satisfied at Completion), the Seller Company shall provide to the Purchaser written confirmation (a fair valuation report, in a form and substance satisfactory to the form attached as Part A Purchaser, from a reputed valuer acceptable to Schedule 2both the Purchaser and the Seller, showing the value of the Sale Shares in accordance with Section 56(2)(x) of the satisfaction IT Act read with the prescribed rules (i.e. Rule 11UA of the IT Rules).
3.4 The Company undertakes to provide all reasonable assistance as may be required by the Sellers and the Purchaser for completing the Seller Conditions Precedent in Clause 3.1(c) and the Purchaser Conditions Precedent in Clause 3.2(c), respectively.
3.5 Each of the Parties undertake to promptly notify the other Parties in writing of anything which will or waiver is reasonably likely to prevent their respective Conditions Precedent from being satisfied as soon as reasonably practicable after it comes to their attention.
3.6 If any of such conditions; and
(ii) the Seller Conditions Precedent are not completed to the satisfaction of the Purchaser or waiver (if is not waived in writing by the Seller in accordance with this Agreement) of the last of the conditions to be satisfied by the Purchaser as set out in Clauses 3.1 and 3.3 (other than conditions which by their very nature are to be satisfied at Completion)Purchaser, the Purchaser shall provide to the Seller a written confirmation (in its sole and absolute discretion and acting reasonably) be entitled to terminate this Agreement in the form attached manner as Part B to Schedule 2) of satisfaction or waiver of such conditions, each such written confirmation a “CP Confirmation Certificate”. For the avoidance of any doubt, it is clarified that if a CP Confirmation Certificate is wrongfully withheld, it shall not affect the right of the relevant Party to enforce Completion on the Completion Date in accordance with the terms of provided under this Agreement.
Appears in 2 contracts
Conditions to Completion. 3.13.1 The obligations of each Purchaser to proceed to Completion as against the Seller, in all respects, is conditional upon the fulfillment to the reasonable satisfaction of such Purchaser, or the waiver by such Purchaser (except where prohibited by Applicable Law), of the following conditions precedent (“Conditions Precedent”):
(a) the Seller’s Warranties being true, accurate, complete and not misleading in all respects as at the date hereof and at the Completion Date, and there having been no breach of any obligations of the Seller under this Agreement;
(b) no injunction, restraining order or other order or any other legal or regulatory restraint or prohibition being in effect or having been issued or made by any court of competent jurisdiction or any other Person which prevents or restricts Completion or the consummation of the transactions and arrangements contemplated in the Agreement;
(c) execution of the Transaction Documents;
(d) the Seller having delivered to the Company: (i) duly executed and stamped share transfer forms and (ii) original share certificates relating to the Sale Shares to be sold by him to such Purchaser;
(e) the Seller having obtained all approvals (including all corporate and Governmental Approvals and approvals under the Shareholders' Agreement and the Articles of Association) required by him in order to perform his obligations under this Agreement, including the sale of the Sale Shares;
(f) the Seller and the Company having obtained a valuation certificate (to the Purchaser’s satisfaction) from a chartered accountant confirming that the consideration payable by the Purchaser hereunder for the Sale Shares is not less than the fair valuation of the Sale Shares, as determined in accordance with the Foreign Exchange Management (Transfer or Issue of Security by a Person Resident Outside India) Regulations, 2017 and under 50CA of the IT Act;
(g) The Seller having prepared drafts of all the transfer documents required to be filed by the Seller with the authorized dealer bank including draft Single Master Form (“SMF”) / Form FC-TRS (as applicable, or any other similar or corresponding form, as may be subsequently updated by the Reserve Bank of India) and all supporting documents (under the Foreign Exchange Management Act, 1999), in respect of the Sale Shares being purchased by the Purchasers and the Purchasers shall have delivered to the Seller all supporting documents pertaining to the Purchasers which are required to be submitted by the Seller along with the SMF / Form FC- TRS;
(h) the allotment of all shares provided for in the share subscription agreement dated on or about the date hereof executed by the Company, ▇▇. ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇, ▇▇. ▇▇▇▇▇ ▇▇▇▇▇▇▇, the Purchasers and other existing shareholders of the Company having been completed, and the transfer of all shares provided for in the share purchase agreement dated on or about the date hereof executed by the Company and non-resident shareholders of the Company having been completed; and
(i) the Seller having delivered a CP Satisfaction Notice pursuant to Clause 3.2.
3.2 The Seller shall, immediately upon the satisfaction of the Conditions Precedent, deliver to each Purchaser, a written notice (“CP Satisfaction Notice”) in the form as set out in Annexure II which shall enclose appropriate documentary evidence (to the extent available) to support the statements in such letter, confirming that the Conditions Precedent set out in Clause 3.1 have been satisfied.
3.3 The obligation of the Seller to sell the Sale Shares and proceed with Completion with any Purchaser is conditional upon the Completion in terms of Clause 5 of this Agreement shall be conditional on fulfillment to the reasonable satisfaction of following conditionsthe Seller, other than those which by their very nature are to be satisfied at Completion, (to or the extent that they have not been waived waiver by the Seller (other than Seller, of the condition set out in Clauses 3.1(ii) below which shall not be waived), in accordance with this Agreement):following conditions precedent:
(ia) The Purchaser having delivered to the Seller on the Execution Date certified copies of the resolutions duly passed by its board of directors or equivalent authority approving the executionrelevant Purchaser’s warranties in Clause 5.4 being true, delivery accurate, complete and performance by the Purchaser of the Transaction Documents.
(ii) The Conclusion of the Open Offer.
(iii) The Purchaser Warranties being true not misleading in all material respects as of at the relevant Completion Date, except that the Purchaser Warranties in Clauses 1 of Schedule 4 being true in all respects as of the Completion Date.
(iv) The Purchaser not being in and there having been no material breach of the agreements, covenants, obligations, and conditions required by any of obligations of each Purchaser under this Agreement to be so performed or complied with by it, at or before the Completion Date (including, but not limited to, the obligations in respect of the Open Offer as set out in Clause 6.1 hereof).Agreement; and
(vb) Simultaneous consummation no injunction, restraining order or other order or any other legal or regulatory restraint or prohibition being in effect or having been issued or made by any court of competent jurisdiction or any other Person which prevents or restricts Completion or the sale of Sale ADSs under the GA Securities Purchase Agreement (including satisfaction of the conditions to completion thereunder), provided that the Seller shall not be entitled to rely on this sub-clause (v) if the Seller is then in breach of the GA Securities Purchase Agreement.
3.2. The obligation of the Purchaser to purchase the Sale Shares and proceed with Completion in terms of Clause 5 of this Agreement shall be conditional on the satisfaction of the following conditions, other than those which by their very nature are to be satisfied at Completion, (to the extent that they have not been waived by the Purchaser (other than the condition set out in Clause 3.2 (iii) below which shall not be waived), in accordance with this Agreement):
(i) The Seller having delivered to the Purchaser on the Execution Date certified copies of the resolutions duly passed by the Seller’s board of directors or equivalent authority (where applicable) approving the execution, delivery and performance by the Seller of the Agreement.
(ii) The Seller Warranties being true in all material respects as of the Completion Date, except that the Seller Warranties in Clause 1.1 and Clause 2 of Part A of Schedule 3 being true in all respects as of the Completion Date.
(iii) Simultaneous consummation of the transactions and arrangements contemplated under in the Founders’ SPA (including satisfaction of Agreement as between the conditions to completion thereunder).
(iv) The Seller not being in material breach of the agreements, covenants, obligations, and conditions required by this Agreement to be so performed or complied with by the Seller, as applicable, at or before the Completion Date.
(v) Simultaneous consummation of the sale of the Sale ADSs under the GA Securities Purchase Agreement (including satisfaction of the conditions to completion thereunder).
3.3. The obligations of the Parties to proceed with Completion in terms of Clause 5 of this Agreement shall be conditional on the following conditions, or their satisfaction subject only to Completion:
(i) there not being in effect any writ, judgment, injunction, decree, or similar order of any court or other authority or law restraining or otherwise preventing consummation of the Transactions, including the actions to be taken at Completion.
(ii) (a) any waiting periods under the HSR Act or other applicable Anti-trust Laws in respect of, and (b) any Approvals by any Governmental Authority required for the consummation of, the Transactions shall have been obtained, expired or terminated, as applicable.
3.4. The Purchaser shall make all reasonable efforts to achieve satisfaction of each condition set out in Clauses 3.1 and 3.3 as soon as possible after the Execution Date.
3.5. The Seller shall make all reasonable efforts to achieve satisfaction of each condition set out in Clauses 3.2 (other than Clause 3.2(iii)) and 3.3(i) as soon as possible after the Execution Date.
3.6. The Seller and the Purchaser, as the case may be, shall each notify the other promptly upon becoming aware that any of the conditions set out in Clause 3 have been satisfied or have become incapable of satisfaction or waiver, other than with respect to those conditions that have to be satisfied as of the Completion.
3.7. At any time prior to or on the Long Stop Date, to the extent permitted under Applicable Law and save as expressly provided otherwise:
(i) the Purchaser may waive any condition set out in Clause 3.2 (other than Clause 3.2(iii)) by notice in writing to the Seller; and
(ii) the Seller may waive any condition set out in Clause 3.1 by notice in writing to the relevant Purchaser.
3.8. Within 3 (three) Business Days following:
(i) the satisfaction or waiver (if waived by the Purchaser in accordance with this Agreement) of the last of the conditions to be satisfied by the Seller as set out in Clauses 3.2 (other than the condition set out in Clause 3.2(iii)) and 3.3(i) (other than conditions which by their very nature are to be satisfied at Completion), the Seller shall provide to the Purchaser written confirmation (in the form attached as Part A to Schedule 2) of the satisfaction or waiver of such conditions; and
(ii) the satisfaction or waiver (if waived by the Seller in accordance with this Agreement) of the last of the conditions to be satisfied by the Purchaser as set out in Clauses 3.1 and 3.3 (other than conditions which by their very nature are to be satisfied at Completion), the Purchaser shall provide to the Seller a written confirmation (in the form attached as Part B to Schedule 2) of satisfaction or waiver of such conditions, each such written confirmation a “CP Confirmation Certificate”. For the avoidance of any doubt, it is clarified that if a CP Confirmation Certificate is wrongfully withheld, it shall not affect the right of the relevant Party to enforce Completion on the Completion Date in accordance with the terms of this Agreement.
Appears in 1 contract
Sources: Share Purchase Agreement
Conditions to Completion. 3.1. 4.1 The obligation of the Seller Sellers to sell complete the Sale Shares and proceed with the Completion in terms of Clause 5 of this Agreement shall be conditional on the satisfaction of following conditions, other than those which by their very nature are to be satisfied at Completion, (Transaction is subject to the extent that they have not been following Conditions being satisfied or waived by the Seller (other than the condition set out in Clauses 3.1(ii) below which shall not be waived), in accordance with this Agreement):Agreement on or before 3.00 p.m. on the date falling five Business Days before the Long Stop Date:
(ia) The Purchaser having delivered to the Seller on the Execution Date certified copies of the resolutions duly passed by its board of directors or equivalent authority approving the execution, delivery and performance by the Purchaser of the Transaction Documents.
(ii) The Conclusion of the Open Offer.
(iii) The Purchaser Purchaser’s Warranties being true in all material respects as of the Completion Date, except that the Purchaser Warranties in Clauses 1 of Schedule 4 being true and correct in all respects as of the date of this Agreement and on and as of the Completion Date with the same force and effect as if made at and as of the Completion Date.; and
(ivb) The Purchaser not being in material breach all obligations of the agreements, covenants, obligations, and conditions required by this Agreement Purchaser to be so performed hereunder prior to Completion having been fully performed or complied with by it, at or before the Completion Date (including, but not limited to, the obligations in respect of the Open Offer as set out in Clause 6.1 hereof).
(v) Simultaneous consummation of the sale of Sale ADSs under the GA Securities Purchase Agreement (including satisfaction of the conditions to completion thereunder)all material respects, provided that the Seller Condition in this Clause 4.1(b) shall not be entitled deemed to rely on this sub-clause (v) be satisfied if the Seller is then Purchaser has cured any failure to perform or comply with in breach all material respects its obligations under this Agreement within ten Business Days of receipt by the Purchaser of written notice from the Sellers setting out in reasonable detail the nature of the GA Securities Purchase alleged failure to perform or comply with its obligations under this Agreement.
3.2. 4.2 The obligation of the Purchaser to purchase complete the Sale Transaction is subject to the following Conditions being satisfied or waived in accordance with this Agreement on or before 3.00 p.m. on the date falling five Business Days before the Long Stop Date:
(a) (i) the Sellers’ Warranties being true and correct in all respects (or, in the case of the Sellers’ Warranties in Clauses 7.2(d), 7.2(e) and 7.2(f), in all material respects, provided that if and for so long as the Sellers’ Warranty in Clause 7.2(e) is untrue or incorrect and as a result the Purchaser is unable to grant to the Debt Financing Sources or any other lender a pledge over the Shares and proceed with Completion the shares or other equity capital in terms the Target Subsidiaries, the Condition in this Clause 4.2(a)(i) shall not be satisfied) as of Clause 5 the date of this Agreement and on and as of the Completion Date with the same force and effect as if made at and as of the Completion Date and (ii) the Business Warranties being true and correct as of the date of this Agreement except where the failure of such Business Warranties to be true and correct would not in aggregate have a Material Adverse Effect;
(b) all obligations of the Sellers and the Target Group Companies to be performed hereunder prior to Completion having been fully performed or complied with in all material respects, provided that the Condition in this Clause 4.2(b) shall be conditional deemed to be satisfied if the Sellers have cured any failure to perform or comply with in all material respects its obligations under this Agreement within ten Business Days of receipt by the Sellers of written notice from the Purchaser setting out in reasonable detail the nature of the alleged failure to perform or comply with its obligations under this Agreement;
(c) those agreements, liabilities and other obligations between any of the Target Group Companies, on the one hand, and the Sellers or any Sellers’ Group Undertaking or Affiliate of the Sellers (excluding the Target Group Companies), on the other hand, listed under Clause 4.2(c) in the Disclosure Schedule having been terminated, cancelled and discharged prior to or upon Completion with no further obligations or liabilities whatsoever remaining thereunder; and
(d) no Material Adverse Effect having occurred.
4.3 The obligations of the parties to complete the Transaction are subject to the following Conditions being satisfied or waived in accordance with this Agreement on or before 3.00 p.m. on the date falling five Business Days before the Long Stop Date:
(a) no litigation or other contentious proceeding having been commenced on any ground (and not withdrawn or discharged) to prevent the transfer of full legal and beneficial title in and to the Shares from the Sellers to the Purchaser as contemplated in Clause 2 of this Agreement, except where (i) commenced by any of the Purchaser, any of its financing sources or any of their respective Affiliates or (ii) commenced on ground(s) immaterial in the context of the Transaction as a whole, and provided that the Condition in this Clause 4.3(a) shall be deemed to be satisfied if any such proceedings involve a damages claim and the Sellers have given the Purchaser an indemnity in respect of any liabilities arising under such claim;
(b) no statute, rule or regulation having been enacted or promulgated by any Governmental Entity which prohibits the consummation of the Transaction;
(c) there being no order or injunction of a court of competent jurisdiction in effect precluding consummation of the Transaction; and
(d) (i) if, in the reasonable determination of the Purchaser or the Sellers the Transaction triggers a filing requirement under the HSR Act, the waiting period applicable to the consummation of the Transaction under the HSR Act having expired or been terminated, (ii) any filing or other notification required under the antitrust or competition laws of Austria or Germany to be completed in order to consummate the Transaction having been completed and the consent or approval of the relevant Governmental Entity having been obtained or any waiting period applicable under such laws having expired or been terminated (as applicable) and (iii) all waiting periods applicable to the Transaction under any other applicable antitrust law or regulation (together with the HSR Act and the antitrust or competition laws of Austria and Germany, the “Antitrust Laws” and each an “Antitrust Law”) having expired or been terminated, all filings required (in the reasonable determination of the Purchaser or the Sellers) by law to be made prior to Completion by the Sellers or the Purchaser with, and all consents, approvals and authorisations required by law to be obtained prior to Completion by the Sellers or the Purchaser from, any Governmental Entity under any such Antitrust Law in order to consummate the Transaction having been made or obtained (as the case may be), except where the failure for such waiting periods to expire, to make such filings, or to obtain any such consent, approval or authorisation, individually or in the aggregate, is not reasonably likely to have a Material Adverse Effect if the Transaction were consummated to the extent legally permissible.
4.4 The Sellers shall use all reasonable endeavours to achieve satisfaction of the following conditions, other than those which by their very nature are to Conditions set out in Clause 4.2 as soon as possible and before the date falling five Business Days before 12 August 2011 or such earlier date as may be satisfied at Completion, specified in a notice as described in limb (to ii) of the extent that they have not been waived by the Purchaser definition of “Completion Date” (other than the condition termination, cancellation or discharge of those agreements, liabilities or other obligations listed under Clause 4.2(c) in the Disclosure Schedule which are only to be terminated, cancelled or discharged upon Completion). If, despite using such reasonable endeavours, such Conditions have not been satisfied by that date then the Sellers shall use their reasonable endeavours to achieve satisfaction of such Conditions as soon as practicable after that date and in any event not later than 3:00 p.m. on the date falling five Business Days before the Long Stop Date.
4.5 Each of the Purchaser and the Sellers (with each of the Purchaser, on the one hand, and the Sellers, on the other hand, being responsible for one-half of any associated filing fees and charges under any Antitrust Law up to a maximum of $500,000 and the Purchaser being responsible for all such filing fees and charges in excess of $500,000) shall, or shall cause their respective Affiliates and/or representatives to, use all reasonable endeavours to achieve satisfaction of the Conditions set out in Clause 3.2 (iii4.3(d) below which shall not as soon as possible and in any case before the date falling five Business Days before 12 August 2011 or such earlier date as may be waived), specified in accordance with this Agreement):
(i) The Seller having delivered to the Purchaser on the Execution Date certified copies of the resolutions duly passed by the Seller’s board of directors or equivalent authority (where applicable) approving the execution, delivery and performance by the Seller of the Agreement.
a notice as described in limb (ii) The Seller Warranties being true in all material respects as of the definition of “Completion Date”. If, except despite using such reasonable endeavours, such Conditions have not been satisfied by that the Seller Warranties in Clause 1.1 and Clause 2 of Part A of Schedule 3 being true in all respects as date then each of the Completion Purchaser and the Sellers shall and shall cause their respective Affiliates and/or representatives to, use their reasonable endeavours to achieve satisfaction of such Conditions as soon as practicable after that date and in any event not later than 3:00 p.m. on the date falling five Business Days before the Long Stop Date.
(iiia) Simultaneous consummation of the transactions contemplated under the Founders’ SPA (including satisfaction of the conditions to completion thereunder).
(iv) The Seller not being in material breach of the agreements, covenants, obligations, and conditions required by this Agreement to be so performed or complied with by the Seller, as applicable, at or before the Completion Date.
(v) Simultaneous consummation of the sale of the Sale ADSs under the GA Securities Purchase Agreement (including satisfaction of the conditions to completion thereunder).
3.3. The obligations of the Parties to proceed with Completion in terms of Clause 5 of this Agreement Such reasonable endeavours shall be conditional on the following conditions, or their satisfaction subject only to Completioninclude:
(i) there within ten Business Days (unless otherwise provided below) following the date of this Agreement filing with the Federal Trade Commission and the Department of Justice the notification and report forms, if any, required by it under the HSR Act, and as soon as reasonably practicable and in any case within twenty Business Days following the date of this Agreement filing such other antitrust filings or clearances as are required with respect to the Transaction and using commercially reasonable best efforts to make all subsequent filings and submissions required of the Purchaser or the Sellers under the HSR Act or in connection with any other antitrust filings or submissions described in Clause 4.3(d), in order to consummate the Transaction, which form(s) shall be in compliance with the requirements of the HSR Act and any Antitrust Law and shall request early termination of the waiting period imposed by the HSR Act and any other Antitrust Law;
(ii) promptly taking all steps (including making notifications and filings) reasonably necessary to obtain all consents, approvals or actions required in order to satisfy the Conditions set out in Clause 4.3(d);
(iii) making available to the other’s counsel such information as each of them may reasonably request, and as may be appropriate under the Antitrust Laws or otherwise, relative to its business, assets and property as may be required of each of them to file any additional information requested by such Governmental Entity under the HSR Act and any other Antitrust Law;
(iv) progressing the submissions, notifications and filings referred to in Clauses 4.5(a)(i) and (ii) with all diligence and providing all information which is reasonably requested or required by any Governmental Entity in connection with such submission, notification and filings;
(v) notifying the other party prior to all communications (including telephone calls and meetings) with any Governmental Entity, allowing such other party the opportunity to participate in any such calls and meetings to the extent reasonably practicable and allowing the other party (and its advisers) the opportunity to review any material written communications before submission to the extent reasonably practicable and to make such amendments to such communications as the other party may reasonably request;
(vi) to the extent a party is prohibited from participating by a Governmental Entity or chooses not being to participate in the communications described in Clause 4.5(a)(v), promptly notifying the other party (and providing copies or, in the case of non-written communications, details) of any communications from any such Governmental Entity relating to any such consent, approval or action;
(vii) promptly providing the other party and its advisers with draft copies of all submissions to, and material communications with, any such Governmental Entity relating to any such consent, approval or action in respect of the Transaction, subject to the other party’s reasonable designation of any competitively sensitive or confidential business material as “outside counsel only,” such materials and information contained therein to be given only to the outside legal counsel of the recipient and not disclosed by such outside counsel to employees, officers or directors of the recipient unless express permission is obtained in advance from the other party or its advisers;
(viii) promptly providing the other party (or its agent) with copies of all such submissions, notifications, filings and other communications in the form submitted or sent, subject to the other party’s reasonable designation of any competitively sensitive or confidential business material as “outside counsel only” and such materials and information contained therein to be given only to the outside legal counsel of the recipient and not disclosed by such outside counsel to employees, officers or directors of the recipient unless express permission is obtained in advance from the other party or its advisers;
(ix) upon request, reviewing with the other party the progress of any notifications and filings to any such Governmental Entity with a view to obtaining clearance from such Governmental Entity at the earliest reasonable opportunity; and
(x) using its commercially reasonable efforts to cooperate in all respects with the other in connection with any filing or submission and in connection with any investigation or other inquiry, including any proceeding initiated by a private party,
(b) The foregoing obligations in this Clause 4.5 shall be subject to the confidentiality provisions of this Agreement and any attorney-client, work product or other privilege, and each of the parties hereto shall coordinate and cooperate fully with the other parties hereto in exchanging such information and providing such assistance as such other parties may reasonably request in connection with the foregoing and in seeking early termination of any applicable waiting periods under the HSR Act or any applicable Antitrust Law. The parties will not take any action that will have the effect of delaying, impairing or impeding the receipt of any required authorizations, consents, court orders or approvals.
(c) If any objections are asserted with respect to the Transaction under the HSR Act or any Antitrust Law or if any suit is instituted by any Governmental Entity or any private party challenging the Transaction as violative of the HSR Act or any Antitrust Law, each of the parties shall use commercially reasonable efforts to resolve such objections or challenge as such Governmental Entity or private party may have to such transactions under the HSR Act or such Antitrust Law, including to vacate, lift, reverse or overturn any court order, whether temporary, preliminary or permanent, so as to permit consummation of the Transaction.
(d) Each of the parties shall exercise commercially reasonable efforts to prevent the entry in any claim, action, suit, audit, assessment, arbitration, inquiry, proceeding or investigation, by or before any Governmental Entity which governs Antitrust Law, or any other person of any order, writ, rule, judgment, injunction, decree, stipulation, determination or similar order of award entered by or with any court government entity which would prohibit, make unlawful or other authority or law restraining or otherwise preventing delay the consummation of the Transactions, including the actions to be taken at CompletionTransaction.
4.6 From Completion, each foreign exchange hedging contract to which a Sellers’ Group Company is a party shall continue in effect (iiunless and until such Sellers’ Group Company determines otherwise) for the benefit of the relevant Sellers’ Group Company and no Target Group Company shall have any rights, obligations or interests under any such contract. Nothing in this Agreement shall prevent any Target Group Company from entering into any foreign exchange hedging contract between the date of this Agreement and Completion (a) that is solely for the benefit for any waiting periods under the HSR Act Target Group Company or other applicable Anti-trust Laws in respect of, Target Group Companies and to which no Sellers’ Group Company is a party and (b) in the ordinary course of business, and nothing in this Agreement shall require any Approvals by Target Group Company to enter into any Governmental Authority required for foreign exchange hedging contract between the consummation of, the Transactions shall have been obtained, expired or terminated, as applicabledate of this Agreement and Completion.
3.4. The Purchaser shall make all reasonable efforts to achieve satisfaction 4.7 Except as required by law, each of each condition set out in Clauses 3.1 and 3.3 as soon as possible after (i) the Execution Date.
3.5. The Seller shall make all reasonable efforts to achieve satisfaction Sellers’ Conditions may be waived by the written agreement of each condition set out in Clauses 3.2 the Sellers, (other than Clause 3.2(iii)ii) and 3.3(i) as soon as possible after the Execution Date.
3.6. The Seller and Purchaser’s Conditions may be waived by the written agreement of the Purchaser, as and (iii) the case Conditions in Clause 4.3 may be, be waived by the written agreement of the Purchaser and the Sellers.
4.8 Each party shall each notify the other party promptly in writing upon becoming aware that any of the conditions set out in Clause 3 Conditions have been satisfied fulfilled. If, at any time, a party becomes aware of a fact or have become incapable of satisfaction or waivercircumstance that is reasonably likely to prevent a Condition from being satisfied, it shall promptly inform the other than with respect to those conditions that have to be satisfied as party of the Completionmatter.
3.7. At 4.9 If any time prior to one or on more of the Long Stop Date, to the extent permitted under Applicable Law and save as expressly provided otherwise:
Conditions have not been fulfilled (i) the Purchaser may waive any condition set out in Clause 3.2 (other than Clause 3.2(iii)) by notice in writing to the Seller; and
(ii) the Seller may waive any condition set out in Clause 3.1 by notice in writing to the Purchaser.
3.8. Within 3 (three) Business Days following:
(i) the satisfaction or waiver (if waived by the Purchaser in accordance with this Agreement) of the last of the conditions to be satisfied by the Seller as set out in Clauses 3.2 (other than the condition set out in Clause 3.2(iii)) and 3.3(i) (other than conditions which by their very nature are to be satisfied at Completion), the Seller shall provide to the Purchaser written confirmation (in the form attached as Part A to Schedule 2) of the satisfaction or waiver of such conditions; and
(ii) the satisfaction or waiver (if waived by the Seller in accordance with this Agreement) of the last of the conditions to be satisfied by the Purchaser as set out in Clauses 3.1 and 3.3 (other than conditions which by their very nature are to be satisfied at Completion), the Purchaser shall provide to the Seller a written confirmation (in the form attached as Part B to Schedule 2) of satisfaction or waiver of such conditions, each such written confirmation a “CP Confirmation Certificate”. For the avoidance of any doubt, it is clarified that if a CP Confirmation Certificate is wrongfully withheld, it shall not affect the right of the relevant Party to enforce Completion on the Completion Date in accordance with the terms of this Agreement.date falli
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Conditions to Completion. 3.1. The obligation of (A) Conditions
5.1 Completion is in all respects conditional upon the Seller to sell following matters:
(a) the Sale Shares and proceed Golden Power Clearance having been obtained (the “Golden Power Condition”);
(b) the Investment Canada Act Clearance having been obtained (the “Investment Canada Act Condition”);
(c) the Antitrust Clearance having been obtained (the “Antitrust Condition” and, together with the Completion in terms of Clause 5 of this Agreement shall be conditional on Golden Power Condition and the satisfaction of following conditionsInvestment Canada Act Condition, other than those which by their very nature are to be satisfied at Completion, the “Regulatory Condition”);
(to d) the extent that they have not Reverse Carve-Outs having been waived by the Seller (other than the condition set out in Clauses 3.1(ii) below which shall not be waived), completed and being effective in accordance with this Agreement):clause 4;
(ie) The Purchaser the Italian Business Carve-Out having delivered to been completed and being effective in accordance with clause 3;
(f) no Governmental Order being in effect preventing the Seller on the Execution Date certified copies consummation of the resolutions duly passed by its board sale and purchase of directors or equivalent authority approving the executionTransferred Shares;
(g) each of the Warranties (except as Disclosed) being true and correct as of the date hereof and as of the Completion Date (except for any such Warranty that is specifically given as of a particular date, delivery which shall be true and performance correct as of such date), except where the failure to be true and correct would not reasonably be expected to have a Material Adverse Effect;
(h) each of the warranties given by the Purchaser of the Transaction Documents.
(ii) The Conclusion of the Open Offer.
(iii) The Purchaser Warranties in clause 20 being true and correct in all material respects as of the Completion Date, except that the Purchaser Warranties in Clauses 1 of Schedule 4 being true in all respects date hereof and as of the Completion Date.
(iv) The Purchaser not being in material breach of the agreements, covenants, obligations, and conditions required by this Agreement to be so performed or complied with by it, at or before the Completion Date (includingexcept for any such warranty that is specifically given as of a particular date, but not limited to, the obligations in respect of the Open Offer as set out in Clause 6.1 hereof).
(v) Simultaneous consummation of the sale of Sale ADSs under the GA Securities Purchase Agreement (including satisfaction of the conditions to completion thereunder), provided that the Seller shall not be entitled to rely on this sub-clause (v) if the Seller is then in breach of the GA Securities Purchase Agreement.
3.2. The obligation of the Purchaser to purchase the Sale Shares and proceed with Completion in terms of Clause 5 of this Agreement which shall be conditional on the satisfaction true and correct as of the following conditions, other than those which by their very nature are to be satisfied at Completion, (to the extent that they have not been waived by the Purchaser (other than the condition set out in Clause 3.2 (iii) below which shall not be waivedsuch date), in accordance with this Agreement):;
(i) The the Seller having delivered to the Purchaser on the Execution Date certified copies of the resolutions duly passed by the Seller’s board of directors or equivalent authority (where applicable) approving the execution, delivery and performance by the Seller of the Agreement.
(ii) The Seller Warranties being true complied in all material respects as of with its obligations under clause 10(A), clause 10.10 and clause 11.8;
(j) the Completion Date, except that the Seller Warranties in Clause 1.1 and Clause 2 of Part A of Schedule 3 being true Purchaser having complied in all material respects as of the Completion Date.with its obligations hereunder to be performed prior to Completion;
(iiik) Simultaneous consummation of no Material Adverse Effect having occurred since the transactions contemplated under date hereof and being continuing, (together, the Founders’ SPA (including satisfaction of the conditions to completion thereunder“Completion Conditions”).
(iv) The Seller not being 5.2 No Completion Condition may be waived, in material breach whole or in part, without the prior written consent of the agreements, covenants, obligations, and conditions required by this Agreement to be so performed or complied with by the Seller, as applicable, at or before the Completion Date.
(v) Simultaneous consummation of the sale of the Sale ADSs under the GA Securities Purchase Agreement (including satisfaction of the conditions to completion thereunder).
3.3. The obligations of the Parties to proceed with Completion in terms of Clause 5 of this Agreement shall be conditional on the following conditions, or their satisfaction subject only to Completion:
(i) there not being in effect any writ, judgment, injunction, decree, or similar order of any court or other authority or law restraining or otherwise preventing consummation of the Transactions, including the actions to be taken at Completion.
(ii) (a) any waiting periods under the HSR Act or other applicable Anti-trust Laws in respect of, and (b) any Approvals by any Governmental Authority required for the consummation of, the Transactions shall have been obtained, expired or terminated, as applicable.
3.4. The Purchaser shall make all reasonable efforts to achieve satisfaction of each condition set out in Clauses 3.1 and 3.3 as soon as possible after the Execution Date.
3.5. The Seller shall make all reasonable efforts to achieve satisfaction of each condition set out in Clauses 3.2 (other than Clause 3.2(iii)) and 3.3(i) as soon as possible after the Execution Date.
3.6. The Seller and the Purchaser, as except for (a) the case may beCompletion Conditions in clauses 5.1(g), shall each notify 5.1(i) and 5.1(k), which are provided in the other promptly upon becoming aware that any sole and exclusive interest of the conditions set out Purchaser and may be unilaterally waived, in Clause 3 have been satisfied whole or have become incapable of satisfaction or waiverin part, other than with respect to those conditions that have to be satisfied as of the Completion.
3.7. At any time prior to or on the Long Stop Date, to the extent permitted under Applicable Law and save as expressly provided otherwise:
(i) the Purchaser may waive any condition set out in Clause 3.2 (other than Clause 3.2(iii)) by notice in writing to the Seller; and
(ii) the Seller may waive any condition set out in Clause 3.1 by notice in writing to the Purchaser.
3.8. Within 3 (three) Business Days following:
(i) the satisfaction or waiver (if waived solely by the Purchaser and (b) the Completion Conditions in accordance with this Agreementclauses 5.1(h) and 5.1(j), which are provided in the sole and exclusive interest of the last of the conditions to Seller and may be satisfied unilaterally waived, in whole or in part, in writing solely by the Seller as set out in Clauses 3.2 (other than the condition set out in Clause 3.2(iii)) and 3.3(i) (other than conditions which by their very nature are to be satisfied at Completion), the Seller shall provide to the Purchaser written confirmation (in the form attached as Part A to Schedule 2) of the satisfaction or waiver of such conditions; and
(ii) the satisfaction or waiver (if waived by the Seller in accordance with this Agreement) of the last of the conditions to be satisfied by the Purchaser as set out in Clauses 3.1 and 3.3 (other than conditions which by their very nature are to be satisfied at Completion), the Purchaser shall provide to the Seller a written confirmation (in the form attached as Part B to Schedule 2) of satisfaction or waiver of such conditions, each such written confirmation a “CP Confirmation Certificate”. For the avoidance of any doubt, it is clarified that if a CP Confirmation Certificate is wrongfully withheld, it shall not affect the right of the relevant Party to enforce Completion on the Completion Date in accordance with the terms of this AgreementSeller.
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Conditions to Completion. 3.1. The obligation of the Seller to sell the Sale Shares and proceed with the 4.1 Conditions Completion in terms of Clause 5 of this Agreement shall be is conditional on the satisfaction of following conditions, other than those which by their very nature are to be satisfied at Completion, (to the extent that they have not been waived by the Seller (other than the condition set out in Clauses 3.1(ii) below which shall not be waived), in accordance with this Agreement):upon:
(iA) The Purchaser written evidence having delivered been produced to the Seller on the Execution Date certified copies of the resolutions duly passed by its board of directors or equivalent authority approving the execution, delivery and performance by the Purchaser of the Transaction Documents.
(ii) The Conclusion of the Open Offer.
(iii) The Purchaser Warranties being true in all material respects as of the Completion Date, except that the Purchaser Warranties in Clauses 1 of Schedule 4 being true in all respects as of the Completion Date.
(iv) The Purchaser not being in material breach of the agreements, covenants, obligations, and conditions required by this Agreement to be so performed or complied with by it, at or before the Completion Date (including, but not limited to, the obligations in respect of the Open Offer as set out in Clause 6.1 hereof).
(v) Simultaneous consummation of the sale of Sale ADSs under the GA Securities Purchase Agreement (including satisfaction of the conditions to completion thereunder), provided that the Seller shall not be entitled to rely on this sub-clause (v) if the Seller is then in breach of the GA Securities Purchase Agreement.
3.2. The obligation of the Purchaser to purchase the Sale Shares and proceed with Completion in terms of Clause 5 of this Agreement shall be conditional on the satisfaction of the following conditions, other than those which by their very nature Vendors that satisfactory financing and banking facilities are available as at the Completion Date to be satisfied fund the proposed acquisition at Completion;
(B) receipt of evidence that, (if required, all filings have been made and all the waiting periods have expired or been terminated in relation to the extent that they have not been waived sale and purchase of the Business Assets under this Agreement pursuant to (1) the ▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇ Anti-Trust Improvement Act of 1976 (as amended) of the United States of America and (2) the Swedish Competition Act;
(C) receipt by the Purchaser (other than Purchasers of all consents and authorisations necessary for the condition set out purposes of the transfer of the Business Assets to the Purchasers with effect from Completion and in Clause 3.2 (iiiparticular all consents and authorisations necessary for the purposes of the assignment of the Contracts pursuant to Sub-clause 2.1(D) below which shall not be waived), in accordance with this Agreement):and all consents and authorisations necessary for the purposes of the transfer of the Intellectual Property Rights pursuant to Sub-clause 2.1(C) and all consents and authorisations necessary for the purposes of the transfer or assignment of the Properties.
(iD) The Seller having delivered receipt by the Purchasers of legal opinions in or substantially in the form attached to this Agreement in Exhibit 2 from the advisers of the Vendors as to the Purchaser on the Execution Date certified copies power and authority of the resolutions duly passed by the Seller’s board of directors or equivalent authority (where applicable) approving the executioneach Vendor to enter into, delivery and performance by the Seller of the perform their respective obligations under, this Agreement.
(iiE) The Seller Warranties the fixed and floating charge held by Foothills Bank over all the assets for the time being true of Western States being released and discharged in all material respects as of the Completion Date, except that the Seller Warranties in Clause 1.1 and Clause 2 of Part A of Schedule 3 being true in all respects as of the Completion Date.full;
(iiiF) Simultaneous consummation the floating charge held by ForeningsSparbanken AB over all the assets for the time being of the transactions contemplated under the Founders’ SPA (including satisfaction of the conditions to completion thereunder).Bejka being released and discharged in full;
(ivG) The Seller not no winding up petitions, insolvency or liquidation proceedings being in material breach of the agreements, covenants, obligations, and conditions required by this Agreement to be so performed or complied with by the Seller, as applicable, at or before the Completion Date.
(v) Simultaneous consummation of the sale of the Sale ADSs under the GA Securities Purchase Agreement (including satisfaction of the conditions to completion thereunder).
3.3. The obligations of the Parties to proceed with Completion in terms of Clause 5 of this Agreement shall be conditional on the following conditions, or their satisfaction subject only to Completion:
(i) there not being in effect any writ, judgment, injunction, decree, or similar order of any court or other authority or law restraining or otherwise preventing consummation of the Transactions, including the actions to be taken at Completion.
(ii) (a) any waiting periods under the HSR Act or other applicable Anti-trust Laws in respect of, and (b) any Approvals by any Governmental Authority required for the consummation of, the Transactions shall have been obtained, expired or terminated, as applicable.
3.4. The Purchaser shall make all reasonable efforts to achieve satisfaction of each condition set out in Clauses 3.1 and 3.3 as soon as possible after the Execution Date.
3.5. The Seller shall make all reasonable efforts to achieve satisfaction of each condition set out in Clauses 3.2 (other than Clause 3.2(iii)) and 3.3(i) as soon as possible after the Execution Date.
3.6. The Seller and the Purchaser, as the case may be, shall each notify the other promptly upon becoming aware that instituted against any of the conditions set out Vendors which are not discharged in full before Completion and no arrangements with creditors of the type referred to in Clause 3 have been satisfied or have become incapable of satisfaction or waiver, other than with respect to those conditions that have to be satisfied as 1 of the Completion.
3.7. At Insolvency ▇▇▇ ▇▇▇▇ or anything analogous thereto being made by any time prior to or on of the Long Stop Date, to the extent permitted under Applicable Law and save as expressly provided otherwise:
(i) the Purchaser may waive any condition set out in Clause 3.2 (other than Clause 3.2(iii)) by notice in writing to the SellerVendors; and
(iiH) the Seller may waive any condition set out in Clause 3.1 Amendment Agreement having been duly executed by notice in writing to the Purchaser.
3.8. Within 3 (three) Business Days following:
(i) the satisfaction or waiver (if waived by the Purchaser in accordance with this Agreement) each of the last of parties thereto and the conditions Facility Agent (as defined therein) having confirmed to be satisfied by Derby Cycle that the Seller as set out Amendment Agreement is unconditional in Clauses 3.2 (other than the condition set out in Clause 3.2(iii)) and 3.3(i) (other than conditions which by their very nature are to be satisfied at Completion), the Seller shall provide to the Purchaser written confirmation (in the form attached as Part A to Schedule 2) of the satisfaction or waiver of such conditions; and
(ii) the satisfaction or waiver (if waived by the Seller in accordance with this Agreement) of the last of the conditions to be satisfied by the Purchaser as set out in Clauses 3.1 and 3.3 (other than conditions which by their very nature are to be satisfied at Completion), the Purchaser shall provide to the Seller a written confirmation (in the form attached as Part B to Schedule 2) of satisfaction or waiver of such conditions, each such written confirmation a “CP Confirmation Certificate”. For the avoidance of any doubt, it is clarified that if a CP Confirmation Certificate is wrongfully withheld, it shall not affect the right of the relevant Party to enforce Completion on the Completion Date in accordance with the terms of this Agreementall respects.
Appears in 1 contract
Conditions to Completion. 3.1. The obligation of the Seller to sell the Sale Shares and proceed with the 3.1 Except as otherwise provided in this clause 3, Completion in terms of Clause 5 of this Agreement shall be conditional on the satisfaction of following conditions, other than those which by their very nature are to be satisfied at Completion, (to the extent that they have not been waived by the Seller (other than the condition set out in Clauses 3.1(ii) below which shall not be waived), in accordance with this Agreement):
(i) The Purchaser having delivered to the Seller on the Execution Date certified copies of the resolutions duly passed by its board of directors or equivalent authority approving the execution, delivery and performance by the Purchaser of the Transaction Documents.
(ii) The Conclusion of the Open Offer.
(iii) The Purchaser Warranties being true in all material respects as of the Completion Date, except that the Purchaser Warranties in Clauses 1 of Schedule 4 being true is in all respects as of conditional upon those conditions listed in Schedule 1 (Conditions to Completion) (the Completion “Conditions”) being satisfied on terms satisfactory to the Sellers’ Representative (acting reasonably), on the one hand, and the Purchasers’ Representative (acting reasonably), on the other hand, in each case on or prior to the Back-Stop Date.
(iv) The Purchaser not being in material breach 3.2 Each Seller will use all reasonable endeavours to fulfil or procure the fulfilment of the agreements, covenants, obligations, Conditions listed in paragraphs 1 and conditions required by this Agreement to be so performed or complied with by it, at or before the Completion Date (including, but not limited to, the obligations in respect of the Open Offer as set out in Clause 6.1 hereof).
(v) Simultaneous consummation of the sale of Sale ADSs under the GA Securities Purchase Agreement (including satisfaction of the conditions to completion thereunder), provided that the Seller shall not be entitled to rely on this sub-clause (v) if the Seller is then in breach of the GA Securities Purchase Agreement.
3.2. The obligation of the Purchaser to purchase the Sale Shares and proceed with Completion in terms of Clause 5 of this Agreement shall be conditional on the satisfaction of the following conditions, other than those which by their very nature are to be satisfied at Completion, (to the extent that they have not been waived by the Purchaser (other than the condition set out in Clause 3.2 (iii) below which shall not be waived), in accordance with this Agreement):
(i) The Seller having delivered to the Purchaser on the Execution Date certified copies of the resolutions duly passed by the Seller’s board of directors or equivalent authority (where applicable) approving the execution, delivery and performance by the Seller of the Agreement.
(ii) The Seller Warranties being true in all material respects as of the Completion Date, except that the Seller Warranties in Clause 1.1 and Clause 2 of Part A of Schedule 3 being true in all respects as of the Completion Date.
1 (iii) Simultaneous consummation of the transactions contemplated under the Founders’ SPA (including satisfaction of the conditions to completion thereunder).
(iv) The Seller not being in material breach of the agreements, covenants, obligations, and conditions required by this Agreement to be so performed or complied with by the Seller, as applicable, at or before the Completion Date.
(v) Simultaneous consummation of the sale of the Sale ADSs under the GA Securities Purchase Agreement (including satisfaction of the conditions to completion thereunder).
3.3. The obligations of the Parties to proceed with Completion in terms of Clause 5 of this Agreement shall be conditional on the following conditions, or their satisfaction subject only Conditions to Completion:
(i) there not being in effect any writ, judgment, injunction, decree, or similar order of any court or other authority or law restraining or otherwise preventing consummation of the Transactions, including the actions to be taken at Completion.
(ii) (a) any waiting periods under the HSR Act or other applicable Anti-trust Laws in respect of, and (b) any Approvals by any Governmental Authority required for the consummation of, the Transactions shall have been obtained, expired or terminated, as applicable.
3.4. The Purchaser shall make all reasonable efforts to achieve satisfaction of each condition set out in Clauses 3.1 and 3.3 as soon as possible after the Execution Date.
3.5. The Seller shall make all reasonable efforts to achieve satisfaction of each condition set out in Clauses 3.2 (other than Clause 3.2(iii)) and 3.3(i) as soon as possible and in any event before the Back-Stop Date and will notify the Purchasers’ Representative in writing, as soon as reasonably practicable, of the satisfaction of such Conditions.
3.3 Each Purchaser will use all reasonable endeavours to fulfil or procure the fulfilment of the Conditions listed in paragraphs 1 and 3 of Schedule 1 (Conditions to Completion) as soon as possible and in any event before the Back-Stop Date and the Purchasers’ Representative will notify the Sellers’ Representative in writing, as soon as reasonably practicable, of the satisfaction of such Conditions.
3.4 If:
(A) any competent authority finally determines that an approval in accordance with paragraph 1 of Schedule 1 (Conditions to Completion) will be granted only subject to compliance with certain conditions, undertakings, obligations, measures, divestments and/or commitments (whether structural, behavioural or otherwise) on the part of the Purchasers, the Purchasers’ Group or the ▇▇▇▇ Soho Business; and
(B) any such condition, undertaking, obligation, measure, divestment and/or commitment on the part of the Purchasers, the Purchasers’ Group or the ▇▇▇▇ Soho Business involves the forced sale of all or part of its business and/or the loss to the Purchasers, the Purchasers’ Group or the ▇▇▇▇ Soho Business of a material client, then the Purchasers may determine (acting reasonably) whether satisfying such Condition in accordance with such condition, undertaking, obligation, measure, divestment and/or commitment shall be deemed not to be satisfactory to the Purchasers for the purpose of clause 3.1 and accordingly the Purchasers may determine (acting reasonably) whether any such conditional approval from the relevant competent authority satisfies the corresponding Condition set out in paragraph 1 to Schedule 1 (Conditions to Completion) in accordance with clause 3.1.
3.5 Within ten (10) Business Days after the Execution Datedate of this Agreement:
(A) each of the Purchasers on the one hand and the Sellers on the other hand shall make such filings as may be necessary under the ▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇ Antitrust Improvements Act of 1976, as amended, in respect of the Transaction; and
(B) the Purchasers shall submit a letter requesting that the Commissioner of Competition issue an advance ruling certificate under subsection 102(1) of the Competition Act (Canada) in respect of the Transaction or, if she is not prepared to issue an advance ruling certificate at such time, issue both a waiver from the obligation to submit a notification pursuant to paragraph 113(c) of the Competition Act (Canada) and written confirmation that she does not intend to apply to the Competition Tribunal under section 92 of the Competition Act (Canada), at such time, in respect of the Transaction. If neither an advance ruling certificate nor a waiver is received in a timely manner following the submission of such letter, the Purchasers’ Representative and the Sellers’ Representative shall give reasonable consideration to preparing and filing a notification pursuant to 114(1) of the Competition Act (Canada).
3.6. The Seller 3.6 Each of the Purchasers’ Representative and the Purchaser, Sellers’ Representative undertakes to the other to keep the other informed as to progress towards satisfaction of the case may be, shall each Conditions for which it is responsible and undertakes:
(A) as soon as reasonably practicable after receiving the same to notify the other of any material or substantive communications (whether written or oral) from any governmental or regulatory body or other person in relation to obtaining any consent, approval or action and to promptly upon becoming aware that provide copies of such written communications and as soon as practicable thereafter, provide a summary of such oral communications to the other party;
(B) to provide the other party (or its advisers) with draft copies of all written submissions to and written communications with (and draft summaries of any proposed material or substantive oral submissions to and communications with) governmental or regulatory bodies or other persons in relation to obtaining any consent, approval or action at such time as will allow, where practicable, the other party a reasonable opportunity to provide comments on such communications before they are sent and promptly provide the other party (or its advisers) with copies of all such communications in the form sent (insofar as any information is competitively sensitive, such information being exchanged on an outside counsel to counsel confidential basis); and
(C) where requested by the other party and where permitted by the governmental or regulatory body or other person concerned and where practicable to do so, allow persons nominated by the other party to attend all meetings with governmental or regulatory bodies or other persons (of which reasonable notice shall be given where practicable by the party responsible for the relevant Condition).
3.7 Each of the conditions set out in Clause 3 have been satisfied or have become incapable of satisfaction or waiver, other than with respect parties undertakes to those conditions that have to be satisfied as of the Completion.
3.7. At any time prior to or on the Long Stop Date, to the extent permitted under Applicable Law and save as expressly provided otherwise:
(i) the Purchaser may waive any condition set out in Clause 3.2 (other than Clause 3.2(iii)) by notice disclose in writing to the Sellerother party anything which will or may prevent any of the Conditions from being satisfied immediately upon becoming aware of such fact.
3.8 The Conditions may be waived in whole or in part as follows:
(A) the Conditions listed in paragraph 1 of Schedule 1 (Conditions to Completion) by the joint written agreement of the Purchasers’ Representative and the Sellers’ Representative; and
(iiB) the Conditions listed in paragraphs 2 and 3 of Schedule 1 (Conditions to Completion) by the written consent of the Purchasers’ Representative.
3.9 The parties agree to co-operate in good faith and in a timely manner in relation to the satisfaction of all of the Conditions and shall not do, or fail to do, anything which could reasonably be expected to prejudice the satisfaction of any such Conditions.
3.10 Without prejudice to the generality of clause 3.9, the parties shall co-operate with the each other in a timely manner in relation to responding to any reasonable questions or comments of any relevant competent authorities (for the purposes of the Conditions or otherwise), and any reasonable request for information about them and, in respect of the Sellers or the Seller Guarantor, the Retained Group, the Group or the ▇▇▇▇ Soho Business and, in respect of the Purchasers, the Purchasers’ Group. In providing such other assistance or information reasonably required to enable it to make any filings or notifications required to satisfy any of the Conditions listed in paragraph 1 of Schedule 1 (Conditions to Completion) (or otherwise), insofar as any information is competitively sensitive, such information being exchanged on an outside counsel to counsel, confidential basis only.
3.11 If, before Completion, it becomes apparent that it is necessary or desirable to obtain further consents or make any filings or notifications beyond those described in paragraph 1 of Schedule 1 (Conditions to Completion), the parties shall discuss in good faith the need to obtain such consents or make such filings or notifications and the most efficient way in which they may waive any condition be obtained or made. The provisions of this clause 3.11 are without prejudice to the rest of this clause 3, and nothing in this clause shall prevent or delay Completion following the satisfaction of the Conditions in accordance with the terms of clause 7.
3.12 The Sellers’ Representative shall procure that each relevant member of the Retained Group assists the Purchasers with completion of the necessary governmental registrations, filings and amendments as required to fulfil the Condition set out in Clause 3.1 by notice in writing paragraph 3 of Schedule 1 (Conditions to Completion) and to amend ▇▇▇▇ Projects (Shanghai) Company Limited’s registration with the PurchaserShanghai Administration for Industry and Commerce, including without limitation, execution of submission documents and provision of information and material as required to MOFCOM, the Shanghai Administration for Industry and Commerce, the relevant Tax Authority and the relevant foreign exchange authority.
3.83.13 If the Condition set out in paragraph 3 of Schedule 1 (Conditions to Completion) is neither satisfied nor waived by the time the Conditions set out in paragraphs 1 and 2 are satisfied or waived:
(A) the parties shall proceed to Completion in accordance with the terms of this Agreement, save that the Shares in ▇▇▇▇ Projects (Shanghai) Company Limited shall not be transferred to ▇▇▇▇▇▇ Engineering Singapore Pte. Within Ltd. but shall be retained by ▇▇▇▇ Process BV;
(B) US$[…***…] of the Initial Purchase Price shall be paid at Completion by ▇▇▇▇▇▇ Engineering Singapore Pte. Ltd. into an interest bearing escrow account in the names of the Sellers’ Representative and the Purchasers’ Representative; *
(C) the Purchasers shall continue to use all reasonable endeavours to fulfil or procure the fulfilment of the Condition listed in paragraph 3 of Schedule 1 and the Sellers’ Representative shall continue to comply with its obligations under clause 3.12 and, in respect of ▇▇▇▇ Projects (threeShanghai) Business Days followingCompany Limited only, clause 5, until the earlier of:
(i) the satisfaction or waiver (if waived by the Purchaser in accordance with this Agreement) of the last Condition listed in paragraph 3 of Schedule 1, following which:
(a) ▇▇▇▇ Process BV and ▇▇▇▇▇▇ Engineering Singapore Pte. Ltd. shall comply with the provisions of Schedule 2 to the extent that they are relevant to ▇▇▇▇ Projects (Shanghai) Company Limited in order to effect Completion of the conditions to be satisfied by the Seller as set out in Clauses 3.2 (other than the condition set out in Clause 3.2(iii)) and 3.3(i) (other than conditions which by their very nature are to be satisfied at Completion), the Seller shall provide to the Purchaser written confirmation (in the form attached as Part A to Schedule 2) transfer of the satisfaction or waiver of such conditionsShares in ▇▇▇▇ Projects (Shanghai) Company Limited to ▇▇▇▇▇▇ Engineering Singapore Pte. Ltd.; and
(b) the US$[…***…] held in the interest bearing escrow account shall be transferred to ▇▇▇▇ Process BV together with all accrued interest thereon; and *
(ii) the satisfaction or waiver (if waived such date nominated by the Seller Sellers’ Representative or the Purchasers’ Representative (having given at least five (5) Business Days’ notice of the same, such notice expiring no earlier than twelve (12) months after Completion (in respect of the rest of the ▇▇▇▇ Soho Business)), provided that no party may give notice pursuant to this clause 3.13(C)(ii), if, at the time of giving such notice, it is or has been in breach of its obligations under clause 3.13(C). On the date so nominated:
(a) the US$[…***…] held in the interest bearing escrow account shall be transferred to ▇▇▇▇▇▇ Engineering Singapore Pte. Ltd. together with all accrued interest thereon; *
(b) any and all obligations on ▇▇▇▇ Process BV to sell and ▇▇▇▇▇▇ Engineering Singapore Pte. Ltd. to purchase the Shares in ▇▇▇▇ Projects (Shanghai) Company Limited shall cease; and
(c) for the purposes of the interpretation of this Agreement, ▇▇▇▇ Projects (Shanghai) Company Limited and its business shall be treated thereafter as an Excluded Company and part of the Excluded Businesses respectively and ▇▇▇▇ Projects (Shanghai) Company Limited shall be treated thereafter as a member of the Retained Group rather than the Group; and
(D) until the date referred to in clause 3.13(C), the Purchasers’ Representative undertakes to do anything (at its own cost) in respect of ▇▇▇▇ Projects (Shanghai) Company Limited reasonably requested of it by the Sellers’ Representative.
3.14 Notwithstanding the delayed completion of the transfer of the Shares in ▇▇▇▇ Projects (Shanghai) Company Limited in accordance with this Agreementclause 3.13:
(A) the Completion Accounts shall nevertheless be prepared as if that transfer had taken place on Completion, and no adjustment shall be made to any Adjustment Amount following the events described in clause 3.13(C); and
(B) no Warranty shall be repeated nor further warranty given on the transfer of the last of the conditions to be satisfied by the Purchaser as set out Shares in Clauses 3.1 and 3.3 ▇▇▇▇ Projects (other than conditions which by their very nature are to be satisfied at Completion), the Purchaser shall provide to the Seller a written confirmation (in the form attached as Part B to Schedule 2Shanghai) of satisfaction or waiver of such conditions, each such written confirmation a “CP Confirmation Certificate”. For the avoidance of any doubt, it is clarified that if a CP Confirmation Certificate is wrongfully withheld, it shall not affect the right of the relevant Party to enforce Completion on the Completion Date Company Limited in accordance with the terms of this Agreementclause 3.13(C)(i).
Appears in 1 contract
Sources: Share Purchase Agreement (Jacobs Engineering Group Inc /De/)
Conditions to Completion. 3.1. 2.1 The obligation sale and purchase of the Seller to sell the Sale Shares is conditional on, and proceed Completion cannot take place unless, each of the following conditions has been satisfied or waived prior to the Long Stop Date:
(a) the Dumex China Disposal having been approved by Independent Yashili Shareholders at the Yashili EGM in connection with the Completion in terms Dumex China Disposal as a major and connected transaction of Clause 5 of this Agreement shall be conditional on the satisfaction of following conditions, other than those which by their very nature are to be satisfied at Completion, (to the extent that they have not been waived by the Seller (other than the condition set out in Clauses 3.1(ii) below which shall not be waived), Company in accordance with this Agreement):the requirements imposed by the relevant Governmental Entity; and
(i) The Purchaser the Dumex China Disposal having delivered to the Seller been completed on the Execution Date certified copies of the resolutions duly passed by its board of directors or equivalent authority approving the execution, delivery and performance by the Purchaser of the Transaction Documents.
(ii) The Conclusion of the Open Offer.
(iii) The Purchaser Warranties being true in all material respects as of the Completion Date, except that the Purchaser Warranties in Clauses 1 of Schedule 4 being true in all respects as of the Completion Date.
(iv) The Purchaser not being in material breach of the agreements, covenants, obligations, and conditions required by this Agreement to be so performed or complied with by it, at or before the Completion Date (including, but not limited to, the obligations in respect of the Open Offer as set out in Clause 6.1 hereof).
(v) Simultaneous consummation of the sale of Sale ADSs under the GA Securities Purchase Agreement (including satisfaction of the conditions to completion thereunder), provided that the Seller shall not be entitled to rely on this sub-clause (v) if the Seller is then in breach of the GA Securities Purchase Agreement.
3.2. The obligation of the Purchaser to purchase the Sale Shares and proceed with Completion in terms of Clause 5 of this Agreement shall be conditional on the satisfaction of the following conditions, other than those which by their very nature are to be satisfied at Completion, (to the extent that they have not been waived by the Purchaser (other than the condition set out in Clause 3.2 (iii) below which shall not be waived), in accordance with this Agreement):
(i) The Seller having delivered to the Purchaser on the Execution Date certified copies of the resolutions duly passed by the Seller’s board of directors or equivalent authority (where applicable) approving the execution, delivery and performance by the Seller of the Agreement.
(ii) The Seller Warranties being true in all material respects as of the Completion Date, except that the Seller Warranties in Clause 1.1 and Clause 2 of Part A of Schedule 3 being true in all respects as of the Completion Date.
(iii) Simultaneous consummation of the transactions contemplated under the Founders’ SPA (including satisfaction of the conditions to completion thereunder).
(iv) The Seller not being in material breach of the agreements, covenants, obligations, and conditions required by this Agreement to be so performed or complied with by the Seller, as applicable, at or before the Completion Date.
(v) Simultaneous consummation of the sale of the Sale ADSs under the GA Securities Purchase Agreement (including satisfaction of the conditions to completion thereunder).
3.3. The obligations of the Parties to proceed with Completion in terms of Clause 5 of this Agreement shall be conditional on the following conditions, or their satisfaction subject only to Completion:
(i) there not being in effect any writ, judgment, injunction, decree, or similar order of any court or other authority or law restraining or otherwise preventing consummation of the Transactions, including the actions to be taken at Completion.
(ii) (a) any waiting periods under the HSR Act or other applicable Anti-trust Laws in respect of, and (b) any Approvals by any Governmental Authority required for the consummation of, the Transactions shall have been obtained, expired or terminated, as applicable.
3.4. The Purchaser shall make all reasonable efforts to achieve satisfaction of each condition set out in Clauses 3.1 and 3.3 as soon as possible after the Execution Date.
3.5. The Seller shall make all reasonable efforts to achieve satisfaction of each condition set out in Clauses 3.2 (other than Clause 3.2(iii)) and 3.3(i) as soon as possible after the Execution Date.
3.6. The Seller and the Purchaser, as the case may be, shall each notify the other promptly upon becoming aware that any of the conditions set out in Clause 3 have been satisfied or have become incapable of satisfaction or waiver, other than with respect to those conditions that have to be satisfied as of the Completion.
3.7. At any time prior to or on the Long Stop Date, or (ii) in the case that any one or more of the Dumex Key Principles have not been satisfied or (where applicable) waived by the Dumex LSD, following all conditions precedent to the extent permitted under Applicable Law Dumex China Disposal (excluding the Dumex Key Principles) having been satisfied or (where applicable) waived, (each a Condition and save together, the Conditions). For the avoidance of doubt, if the CP Satisfaction Deadline (as expressly provided otherwise:defined in the Dumex China Disposal SPA) is extended pursuant to section 6.06 of the Dumex China Disposal SPA, the earliest date on which condition 2.1(b)(ii) above may be assessed to determine whether it has been satisfied is on such extended CP Satisfaction Deadline as determined in accordance with the Dumex China Disposal SPA, and
(i) all references in this Agreement to “Dumex LSD” shall be read as a reference to “the Purchaser may waive any condition set out extended CP Satisfaction Deadline (as defined in, and determined in Clause 3.2 (other than Clause 3.2(iii)accordance with, the Dumex China Disposal SPA) by notice in writing to the Sellerwhich shall be 15 June 2023”; and
(ii) all references in this Agreement to “Long Stop Date” shall be read as a reference to “the Seller may waive any condition set out 6th Dumex Business Day after the Dumex LSD” or, if the completion of the Dumex China Disposal is deferred pursuant to section 2.08(b) of the Dumex China Disposal SPA, “the 16th Dumex Business Day after the Dumex LSD”.
2.2 The Condition in Clause 3.1 clause 2.1
(a) cannot be waived. The Condition in clause 2.1(b) can only be waived by notice in writing to the Purchaser.
3.82.3 The Purchaser undertakes to procure the Company to convene the Yashili EGM as soon as reasonably practicable after the date of this Agreement, for the purpose of seeking approval of this Transaction, the Dumex China Disposal and the Chilled Business JVs Acquisition from the Independent Yashili Shareholders, the details of which are set out in the Announcement.
2.4 The Purchaser shall use all reasonable endeavours to procure that the Condition in clause 2.1(a) is satisfied as soon as reasonably practicable. Within 3 (threeThe Seller shall cooperate with the Purchaser in good faith and provide such information as may reasonably be necessary and it is reasonably able to provide, to allow the Purchaser to satisfy the Condition in clause 2.1(a) Business Days followingas soon as reasonably practicable.
2.5 If the Conditions are not satisfied, or waived in accordance with clause 2.2, on or before the Long Stop Date:
(ia) except for the satisfaction or waiver (if waived by Surviving Provisions, all the Purchaser in accordance with provisions of this Agreement) of the last of the conditions Agreement shall lapse and cease to be satisfied by the Seller as set out in Clauses 3.2 (other than the condition set out in Clause 3.2(iii)) and 3.3(i) (other than conditions which by their very nature are to be satisfied at Completion), the Seller shall provide to the Purchaser written confirmation (in the form attached as Part A to Schedule 2) of the satisfaction or waiver of such conditionshave effect; andbut
(iib) neither the satisfaction lapsing of those provisions nor their ceasing to have effect shall affect any accrued rights or waiver (if waived by the Seller in accordance with this Agreement) of the last of the conditions to be satisfied by the Purchaser as set out in Clauses 3.1 and 3.3 (other than conditions which by their very nature are to be satisfied at Completion), the Purchaser shall provide to the Seller a written confirmation (in the form attached as Part B to Schedule 2) of satisfaction or waiver of such conditions, each such written confirmation a “CP Confirmation Certificate”. For the avoidance liabilities of any doubt, it is clarified that if a CP Confirmation Certificate is wrongfully withheld, it shall not affect the right Party in respect of the relevant Party damages for non-performance of any obligation under this Agreement falling due for performance prior to enforce Completion on the Completion Date in accordance with the terms of this Agreementsuch lapse and cessation.
Appears in 1 contract
Sources: Share Purchase Agreement
Conditions to Completion. 3.1. The obligation of Offeror to accept for payment the Seller to sell the Sale tendered Outstanding Shares and proceed with to complete the Completion in terms of Clause 5 of this Agreement Tender Offer shall be conditional on subject to the satisfaction of following conditionsfulfilment or, other than those which by their very nature are to be satisfied at Completion, (to the extent permitted by applicable law, waiver by Offeror of the following conditions on or prior to the date of Offeror’s announcement of the final result of the Tender Offer:
i) the valid tender of Outstanding Shares representing more than 90 percent of the issued and outstanding shares and voting rights of the Company;
ii) the receipt of all necessary regulatory approvals, permits and consents, including competition clearances, on terms acceptable to Offeror;
iii) no event, circumstance or change having occurred after the Offer Announcement that they have results in or constitutes, or that can reasonably be expected to result in or constitute, a Material Adverse Change (as defined above);
iv) Offeror not, after the Offer Announcement, having received information previously undisclosed to it that has resulted in or constituted, or that can reasonably be expected to result in or constitute, a Material Adverse Change (as defined above);
v) no court or regulatory authority of competent jurisdiction having given an order or issued any regulatory action preventing, postponing or materially challenging the completion of the Tender Offer;
vi) the Board of Directors of the Company having issued its complete statement regarding the Tender Offer (as referred to in the Securities Market Act) on the date of the publication of the Offer Announcement recommending the shareholders to accept the Tender Offer and such recommendation remaining in force and not being modified or changed; and
vii) this Agreement not having been waived by the Seller (other than the condition set out terminated and remaining in Clauses 3.1(ii) below which force. The Offeror shall not be waived), in accordance with this Agreement):
(i) The Purchaser having delivered to the Seller on the Execution Date certified copies of the resolutions duly passed by its board of directors or equivalent authority approving the execution, delivery and performance by the Purchaser of the Transaction Documents.
(ii) The Conclusion of the Open Offer.
(iii) The Purchaser Warranties being true in all material respects as of the Completion Date, except that the Purchaser Warranties in Clauses 1 of Schedule 4 being true in all respects as of the Completion Date.
(iv) The Purchaser not being in material breach of the agreements, covenants, obligations, and conditions required by this Agreement to be so performed or complied with by it, at or before the Completion Date (including, but not limited to, the obligations in respect of the Open Offer as set out in Clause 6.1 hereof).
(v) Simultaneous consummation of the sale of Sale ADSs under the GA Securities Purchase Agreement (including satisfaction invoke any of the conditions to completion thereunder)so as to cause the Tender Offer not to proceed, provided that the Seller shall not be entitled to rely on this sub-clause (v) if the Seller is then in breach of the GA Securities Purchase Agreement.
3.2. The obligation of the Purchaser to purchase the Sale Shares and proceed with Completion in terms of Clause 5 of this Agreement shall be conditional on the satisfaction of the following conditions, other than those which by their very nature are lapse or to be satisfied at Completionwithdrawn, (to unless the extent that they have not been waived by the Purchaser (other than the condition set out in Clause 3.2 (iii) below which shall not be waived), in accordance with this Agreement):
(i) The Seller having delivered to the Purchaser on the Execution Date certified copies of the resolutions duly passed by the Seller’s board of directors or equivalent authority (where applicable) approving the execution, delivery and performance by the Seller of the Agreement.
(ii) The Seller Warranties being true in all material respects as of the Completion Date, except that the Seller Warranties in Clause 1.1 and Clause 2 of Part A of Schedule 3 being true in all respects as of the Completion Date.
(iii) Simultaneous consummation of the transactions contemplated under the Founders’ SPA (including satisfaction of the conditions to completion thereunder).
(iv) The Seller not being in material breach of the agreements, covenants, obligations, and conditions required by this Agreement to be so performed or complied with by the Seller, as applicable, at or before the Completion Date.
(v) Simultaneous consummation of the sale of the Sale ADSs under the GA Securities Purchase Agreement (including satisfaction of the conditions to completion thereunder).
3.3. The obligations of the Parties to proceed with Completion in terms of Clause 5 of this Agreement shall be conditional on the following conditions, or their satisfaction subject only to Completion:
(i) there not being in effect any writ, judgment, injunction, decree, or similar order of any court or other authority or law restraining or otherwise preventing consummation of the Transactions, including the actions to be taken at Completion.
(ii) (a) any waiting periods under the HSR Act or other applicable Antinon-trust Laws in respect of, and (b) any Approvals by any Governmental Authority required for the consummation of, the Transactions shall have been obtained, expired or terminated, as applicable.
3.4. The Purchaser shall make all reasonable efforts to achieve satisfaction of each condition set out in Clauses 3.1 and 3.3 as soon as possible after the Execution Date.
3.5. The Seller shall make all reasonable efforts to achieve satisfaction of each condition set out in Clauses 3.2 (other than Clause 3.2(iii)) and 3.3(i) as soon as possible after the Execution Date.
3.6. The Seller and the Purchaser, as the case may be, shall each notify the other promptly upon becoming aware that any of the conditions set out in Clause 3 have been satisfied or have become incapable of satisfaction or waiver, other than with respect to those conditions that have to be satisfied as of the Completion.
3.7. At any time prior to or on the Long Stop Date, to the extent permitted under Applicable Law and save as expressly provided otherwise:
(i) the Purchaser may waive any condition set out in Clause 3.2 (other than Clause 3.2(iii)) by notice in writing to the Seller; and
(ii) the Seller may waive any condition set out in Clause 3.1 by notice in writing to the Purchaser.
3.8. Within 3 (three) Business Days following:
(i) the satisfaction or waiver (if waived by the Purchaser in accordance with this Agreement) of the last of the conditions to be satisfied by the Seller as set out in Clauses 3.2 (other than the condition set out in Clause 3.2(iii)) and 3.3(i) (other than conditions which by their very nature are to be satisfied at Completion), the Seller shall provide to the Purchaser written confirmation (in the form attached as Part A to Schedule 2) of the satisfaction or waiver of such conditions; and
(ii) the satisfaction or waiver (if waived by the Seller in accordance with this Agreement) of the last of the conditions to be satisfied by the Purchaser as set out in Clauses 3.1 and 3.3 (other than conditions which by their very nature are to be satisfied at Completion), the Purchaser shall provide to the Seller a written confirmation (in the form attached as Part B to Schedule 2) of satisfaction or waiver of such conditions, each such written confirmation a “CP Confirmation Certificate”. For the avoidance of any doubt, it is clarified that if a CP Confirmation Certificate is wrongfully withheld, it shall not affect the right fulfilment of the relevant Party condition has a significant meaning to enforce Completion on the Completion Date Offeror from the perspective of the Tender Offer, as referred to in accordance with the terms of this AgreementRegulations and Guidelines 9/2013, as may be amended or re-enacted from time to time, issued by the Finnish Financial Supervisory Authority and the Takeover Code.
Appears in 1 contract
Sources: Combination Agreement (Brady Corp)
Conditions to Completion. 3.1. The obligation of the Seller to sell the Sale Shares and proceed with the Conditions
5.1 Completion in terms of Clause 5 of this Agreement shall be conditional on the satisfaction of following conditions, other than those which by their very nature are to be satisfied at Completion, (to the extent that they have not been waived by the Seller (other than the condition set out in Clauses 3.1(ii) below which shall not be waived), in accordance with this Agreement):
(i) The Purchaser having delivered to the Seller on the Execution Date certified copies of the resolutions duly passed by its board of directors or equivalent authority approving the execution, delivery and performance by the Purchaser of the Transaction Documents.
(ii) The Conclusion of the Open Offer.
(iii) The Purchaser Warranties being true in all material respects as of the Completion Date, except that the Purchaser Warranties in Clauses 1 of Schedule 4 being true in all respects as of the Completion Date.
(iv) The Purchaser not being in material breach of the agreements, covenants, obligations, and conditions required by this Agreement to be so performed or complied with by it, at or before the Completion Date (including, but not limited to, the obligations in respect of the Open Offer as set out in Clause 6.1 hereof).
(v) Simultaneous consummation of the sale of Sale ADSs under the GA Securities Purchase Agreement (including satisfaction of the conditions to completion thereunder), provided that the Seller shall not be entitled to rely on this sub-clause (v) if the Seller is then in breach of the GA Securities Purchase Agreement.
3.2. The obligation of the Purchaser to purchase the Sale Shares and proceed with Completion in terms of Clause 5 of this Agreement shall be conditional on the satisfaction of the following conditions, other than those which by their very nature are to be satisfied at Completion, (to the extent that they have not been waived by the Purchaser (other than the condition set out in Clause 3.2 (iii) below which shall not be waived), in accordance with this Agreement):
(i) The Seller having delivered to the Purchaser on the Execution Date certified copies of the resolutions duly passed by the Seller’s board of directors or equivalent authority (where applicable) approving the execution, delivery and performance by the Seller of the Agreement.
(ii) The Seller Warranties being true in all material respects as of the Completion Date, except that the Seller Warranties in Clause 1.1 and Clause 2 of Part A of Schedule 3 being true in all respects as of the Completion Date.
(iii) Simultaneous consummation of the transactions contemplated under the Founders’ SPA (including satisfaction of the conditions to completion thereunder).
(iv) The Seller not being in material breach of the agreements, covenants, obligations, and conditions required by this Agreement to be so performed or complied with by the Seller, as applicable, at or before the Completion Date.
(v) Simultaneous consummation of the sale of the Sale ADSs under the GA Securities Purchase Agreement (including satisfaction of the conditions to completion thereunder).
3.3. The obligations of the Parties to proceed with Completion in terms of Clause 5 of this Agreement shall be conditional on the following conditions, or their satisfaction subject only to Completion:events occurring (the “Conditions”):
5.1.1 the conditions set forth in Part A of Schedule 6 having been satisfied (i) there not being the “Antitrust Conditions”);
5.1.2 the conditions set forth in effect any writ, judgment, injunction, decree, or similar order Part B of any court or other authority or law restraining or otherwise preventing consummation Schedule 6 having been satisfied (the “FDI Conditions”);
5.1.3 the conditions set forth in Part C of Schedule 6 having been satisfied (the Transactions, including “Consent Conditions” and together with the actions to be taken at Antitrust Conditions and the FDI Conditions the “Regulatory Conditions”);
5.1.4 the Purchaser Shareholder Approval having been obtained (the “Shareholder Approval Condition”);
5.1.5 the conditions set forth in paragraph 1 of Schedule 9 having been satisfied; and
5.1.6 the Management Roll-Up has completed (the “Management Roll-Up Condition”).
5.2 The Parties shall comply with Schedule 5.
5.3 The Sellers shall procure that the Management Roll-Up is completed before Completion.
(ii) (a) any waiting periods under 5.4 The Purchaser may, not more than one day prior to the HSR Act Scheduled Completion Date and only if all other Conditions have been satisfied or other applicable Antiwaived, waive the Management Roll-trust Laws Up Condition.
5.5 The Regulatory Conditions shall each be waivable by the mutual agreement of the Purchaser and the Investor Sellers.
5.6 The Parties shall comply with the obligations set forth in respect ofSchedule 7.
5.7 The Purchaser undertakes that, during the Pre-Completion Period, it will not, and (b) shall procure that no member of the Purchaser’s Group shall, either alone or acting in concert with others, acquire or agree to acquire any Approvals by business if such acquisition or agreement would, or would reasonably be expected to, materially prejudice or materially delay the satisfaction of any Governmental Authority required for of the consummation of, the Transactions shall have been obtained, expired or terminated, as applicableRegulatory Conditions.
3.4. 5.8 The Purchaser shall make all reasonable efforts to achieve satisfaction of each condition set out in Clauses 3.1 and 3.3 as soon as possible after the Execution Date.
3.5. The Seller shall make all reasonable efforts to achieve satisfaction of each condition set out in Clauses 3.2 (other than Clause 3.2(iii)) and 3.3(i) as soon as possible after the Execution Date.
3.6. The Seller Sellers and the Purchaser, as the case may be, Purchaser shall each notify the other promptly upon becoming aware that:
5.8.1 circumstances have arisen that would likely result in any of the conditions set out in Clause 3 have been Conditions not being satisfied or have become incapable of satisfaction or waiver, other than with respect to those conditions that have to be satisfied as of the Completion.
3.7. At any time prior to or on the Long Stop DateDate together with such details of the relevant circumstances; or
5.8.2 any of the Conditions has been fulfilled.
5.9 Without obtaining the prior written consent of the Investor Sellers (in the case of the Purchaser) or the Purchaser (in the case of a Seller), to each Party shall not, and shall procure that each of its Affiliates, in the extent permitted under Applicable Law case of the Sellers, and save as expressly provided otherwise:
each member of the Purchaser’s Group, in the case of the Purchaser shall not, make any filing with any Governmental Entity: (i) in relation to the Purchaser may waive Transaction which is not required or advisable in order to fulfil any condition set out in Clause 3.2 of the Regulatory Conditions or otherwise required or advisable to consummate the Transaction (other than Clause 3.2(iiiany such filing with a Taxation Authority)) by notice in writing to the Seller; and
or (ii) the Seller may waive any condition set out in Clause 3.1 by notice in writing which would reasonably be expected to the Purchaser.
3.8. Within 3 (three) Business Days following:
(i) materially prejudice or materially delay the satisfaction of any of the Regulatory Conditions (other than any such filing with a Taxation Authority that is required by applicable Law). All costs and expenses incurred by or waiver (if waived by on behalf of the Purchaser in accordance associated with this Agreement) the satisfying of any of the last of the conditions to be satisfied by the Seller as set out in Clauses 3.2 Conditions (other than the condition Management Roll-Up Condition and the conditions set out forth in Clause 3.2(iii)paragraph 1 of Schedule 9) and 3.3(i) (other than conditions which by their very nature are to shall be satisfied at Completion), the Seller shall provide to the Purchaser written confirmation (in the form attached as Part A to Schedule 2) of the satisfaction or waiver of such conditions; and
(ii) the satisfaction or waiver (if waived borne solely by the Seller in accordance with this Agreement) of the last of the conditions to be satisfied by the Purchaser as set out in Clauses 3.1 and 3.3 (other than conditions which by their very nature are to be satisfied at Completion), the Purchaser shall provide to the Seller a written confirmation (in the form attached as Part B to Schedule 2) of satisfaction or waiver of such conditions, each such written confirmation a “CP Confirmation Certificate”. For the avoidance of any doubt, it is clarified that if a CP Confirmation Certificate is wrongfully withheld, it shall not affect the right of the relevant Party to enforce Completion on the Completion Date in accordance with the terms of this AgreementPurchaser.
Appears in 1 contract
Conditions to Completion. 3.1. The obligation of the Seller to sell the Sale Shares and proceed with the Completion in terms of Clause 5 of this Agreement shall be conditional on the satisfaction of following conditions, other than those which by their very nature are to be satisfied at Completion, (to the extent that they have not been waived by the Seller (other than the condition set out in Clauses 3.1(ii) below which shall not be waived), in accordance with this Agreement):
(i) The Purchaser having delivered to the Seller on the Execution Date certified copies of the resolutions duly passed by its board of directors or equivalent authority approving the execution, delivery and performance by the Purchaser of the Transaction Documents.
(ii) The Conclusion of the Open Offer.
(iii) The Purchaser Warranties being true in all material respects as of the Completion Date, except that the Purchaser Warranties in Clauses 1 of Schedule 4 being true in all respects as of the Completion Date.
(iv) The Purchaser not being in material breach of the agreements, covenants, obligations, and conditions required by this Agreement to be so performed or complied with by it, at or before the Completion Date (including, but not limited to, the obligations in respect of the Open Offer as set out in Clause 6.1 hereof).
(v) Simultaneous consummation of the sale of Sale ADSs under the GA Securities Purchase Agreement (including satisfaction of the conditions to completion thereunder), provided that the Seller shall not be entitled to rely on this sub-clause (v) if the Seller is then in breach of the GA Securities Purchase Agreement.
3.2. 12.1 The obligation of the Purchaser to purchase complete the Sale Shares and proceed with Completion in terms transactions hereby contemplated at the Closing is subject to the fulfillment at or prior to the Closing Time of Clause 5 of this Agreement shall be conditional on the satisfaction each of the following conditions:
(a) The representation and warranties of the Vendor contained herein and in the Schedules hereto and in any certificate, list or other than instrument delivered pursuant to the provisions hereof or otherwise in connection with the transactions contemplated hereby, shall be true at and as of the Closing Time with the same effect as if those such representation and warranties had been made at and as of the Closing Time, and the Vendor shall have performed and complied with all their obligations under this Agreement which by their very nature are to be satisfied at Completion, (to the extent that they have not been waived by the Purchaser (other than the condition set out in Clause 3.2 (iii) below which shall not be waived), in accordance with this Agreement):
(i) The Seller having delivered to the Purchaser on the Execution Date certified copies of the resolutions duly passed by the Seller’s board of directors or equivalent authority (where applicable) approving the execution, delivery and performance by the Seller of the Agreement.
(ii) The Seller Warranties being true in all material respects as of the Completion Date, except that the Seller Warranties in Clause 1.1 and Clause 2 of Part A of Schedule 3 being true in all respects as of the Completion Date.
(iii) Simultaneous consummation of the transactions contemplated under the Founders’ SPA (including satisfaction of the conditions to completion thereunder).
(iv) The Seller not being in material breach of the agreements, covenants, obligations, and conditions required by this Agreement to be so performed or complied with by them prior to or at the Seller, as applicable, at or before the Completion Date.
(v) Simultaneous consummation of the sale of the Sale ADSs under the GA Securities Purchase Agreement (including satisfaction of the conditions to completion thereunder).
3.3. The obligations of the Parties to proceed with Completion in terms of Clause 5 of this Agreement shall be conditional on the following conditions, or their satisfaction subject only to Completion:
(i) there not being in effect any writ, judgment, injunction, decree, or similar order of any court or other authority or law restraining or otherwise preventing consummation of the Transactions, including the actions to be taken at Completion.
(ii) (a) any waiting periods under the HSR Act or other applicable Anti-trust Laws in respect of, and (b) any Approvals by any Governmental Authority required for the consummation of, the Transactions shall have been obtained, expired or terminated, as applicable.
3.4. The Purchaser shall make all reasonable efforts to achieve satisfaction of each condition set out in Clauses 3.1 and 3.3 as soon as possible after the Execution Date.
3.5. The Seller shall make all reasonable efforts to achieve satisfaction of each condition set out in Clauses 3.2 (other than Clause 3.2(iii)) and 3.3(i) as soon as possible after the Execution Date.
3.6. The Seller and the PurchaserClosing Time, as the case may be; and the Purchaser shall have received a certificate or certificates of the Vendor dated the Closing Time, shall each notify the other promptly upon becoming aware that any confirming fulfilment of the conditions set out specified in Clause 3 have been satisfied or have become incapable of satisfaction or waiver, other than with respect to those conditions that have to be satisfied as of the Completionthis Section.
3.7. At any time prior to or on the Long Stop Date, to the extent permitted under Applicable Law and save as expressly provided otherwise:
(ib) the Purchaser may waive any condition set out in Clause 3.2 (other than Clause 3.2(iii)) by notice in writing to the Seller; and
(ii) the Seller may waive any condition set out in Clause 3.1 by notice in writing to the Purchaser.
3.8. Within 3 (three) Business Days following:
(i) the satisfaction or waiver (if waived by the Purchaser in accordance with this Agreement) of the last of the conditions to be satisfied by the Seller as set out in Clauses 3.2 (other than the condition set out in Clause 3.2(iii)) and 3.3(i) (other than conditions which by their very nature are to be satisfied at Completion), the Seller The Vendor shall provide have irrevocably assigned to the Purchaser written confirmation (in the form attached as Part A domain name with the ICANN registry prior to Schedule 2) of the satisfaction or waiver of such conditions; andclosing.
(iic) The Vendor has supplied the satisfaction Purchaser information satisfactory to the Purchaser that all existing agent services agreements have been terminated or waiver (if waived will be terminated by the Seller in accordance with this AgreementClosing.
(d) of the last of the conditions to The Purchaser shall be satisfied by with the results of its investigations described in 13.2 below, and should the Purchaser as set out in Clauses 3.1 and 3.3 (other than conditions which by their very nature are to not be satisfied at Completion), with the Purchaser shall provide to the Seller a written confirmation (in the form attached as Part B to Schedule 2) quantity or substance of satisfaction information or waiver of such conditions, each such written confirmation a “CP Confirmation Certificate”. For the avoidance of any doubt, it is clarified that if a CP Confirmation Certificate is wrongfully withheldaccess provided, it shall not affect remove this subject to closing, and shall have the right to delay the Closing Date for a period of up to 60 days. All of the relevant Party right, title and interest of the Vendor in the Trade Name and any related variant or the use thereof shall be assigned to enforce Completion on the Completion Date Purchaser by the Closing and the Vendor will not, after the date hereof, sell, transfer, assign, license or countenance the use of the Trade Name by any other party except for the assignment of all of the rights, title and interest of the Vendor in accordance with the terms Trade Name to the Purchaser at the completion of this Agreementthe transactions contemplated herein.
12.2 The conditions specified in Section 12.1 are for the exclusive benefit of the Purchaser and may be waived in whole or in part by the Purchaser at any time.
Appears in 1 contract
Sources: Purchase Agreement (Play La Inc.)
Conditions to Completion. 3.1. The obligation of the Seller to sell the Sale Shares and proceed with the Completion in terms of Clause 5 of this Agreement shall be conditional on the satisfaction of following conditions, other than those which by their very nature are to be satisfied at Completion, (to the extent that they have not been waived by the Seller (other than the condition set out in Clauses 3.1(ii) below which shall not be waived), in accordance with this Agreement):
(i) The Purchaser having delivered to the Seller on the Execution Date certified copies of the resolutions duly passed by its board of directors or equivalent authority approving the execution, delivery and performance by the Purchaser of the Transaction Documents.
(ii) The Conclusion of the Open Offer.
(iii) The Purchaser Warranties being true in all material respects as of the Completion Date, except that the Purchaser Warranties in Clauses 1 of Schedule 4 being true in all respects as of the Completion Date.
(iv) The Purchaser not being in material breach of the agreements, covenants, obligations, and conditions required by this Agreement to be so performed or complied with by it, at or before the Completion Date (including, but not limited to, the obligations in respect of the Open Offer as set out in Clause 6.1 hereof).
(v) Simultaneous consummation of the sale of Sale ADSs under the GA Securities Purchase Agreement (including satisfaction of the conditions to completion thereunder), provided that the Seller shall not be entitled to rely on this sub-clause (v) if the Seller is then in breach of the GA Securities Purchase Agreement.
3.2. 4.1 The obligation of the Purchaser to complete the sale and purchase of the Sale Shares and proceed with Completion in terms of Clause 5 of this Agreement shall be conditional on the satisfaction of the following conditions, other than those which by their very nature are to be satisfied at Completion, (to the extent that they have not been waived by the Purchaser (other than the condition set out in Clause 3.2 (iii) below which shall not be waived), in accordance with this Agreement):
(i) The Seller having delivered to the Purchaser on the Execution Date certified copies of the resolutions duly passed by the Seller’s board of directors or equivalent authority (where applicable) approving the execution, delivery and performance by the Seller of the Agreement.
(ii) The Seller Warranties being true in all material respects as of the Completion Date, except that the Seller Warranties in Clause 1.1 and Clause 2 of Part A of Schedule 3 being true in all respects as of the Completion Date.
(iii) Simultaneous consummation of the transactions contemplated Warrants under the Founders’ SPA (including satisfaction of the conditions to completion thereunder).
(iv) The Seller not being in material breach of the agreements, covenants, obligations, and conditions required by this Agreement to be so performed or complied with by the Seller, as applicable, at or before the Completion Date.
(v) Simultaneous consummation of the sale of the Sale ADSs under the GA Securities Purchase Agreement (including satisfaction of the conditions to completion thereunder).
3.3. The obligations of the Parties to proceed with Completion in terms of Clause 5 of this Agreement shall be conditional on the following conditions, conditions (the “Seller Conditions”) having been fulfilled or their satisfaction subject only to Completionwaived in accordance with this Agreement:
(a) (i) there not being in effect any writ, judgment, injunction, decree, or similar order of any court or other authority or law restraining or otherwise preventing consummation each of the TransactionsWarranties contained in Clause 8.1 and Clause 8.2 (disregarding all qualifications and exceptions contained therein relating to materiality) being accurate in all material respects immediately prior to Completion by reference to the facts and circumstances subsisting at the Completion Date (on the basis that any reference in such Warranties, including whether express or implied, to the actions Offer Date is substituted by a reference to be taken at Completion.
the Completion Date) and (ii) each of the Business Warranties (adisregarding all qualifications and exceptions contained therein relating to materiality, including references to “Material Adverse Effect”) being accurate immediately prior to Completion by reference to the facts and circumstances subsisting at the Completion Date (on the basis that any waiting periods under reference in such Warranties, whether express or implied, to the HSR Act or other applicable Anti-trust Laws Offer Date is substituted by a reference to the Completion Date), save to the extent that, in respect ofeach case, and any such inaccuracy would not have a Warranty Material Adverse Effect as at the Completion Date;
(b) any Approvals by any Governmental Authority required for the consummation of, Sellers having performed and complied with the Transactions shall have been obtained, expired or terminated, as applicable.
3.4. The Purchaser shall make all reasonable efforts to achieve satisfaction of each condition set out in Clauses 3.1 covenants and 3.3 as soon as possible after the Execution Date.
3.5. The Seller shall make all reasonable efforts to achieve satisfaction of each condition set out in Clauses 3.2 (other than Clause 3.2(iii)) and 3.3(i) as soon as possible after the Execution Date.
3.6. The Seller and the Purchaser, as the case may be, shall each notify the other promptly upon becoming aware that any of the conditions obligations set out in Clause 5.1 and Schedule 3 have been satisfied of this Agreement on or have become incapable of satisfaction or waiverbefore the Completion Date (and for such purpose, other than with respect the words “use all corporate powers available to those conditions that have to it to” and “use best endeavours to” shall be satisfied as of the Completion.
3.7. At any time prior to or on the Long Stop Datedeleted from Clause 5.1), save to the extent permitted under Applicable Law and save that any such non-performance or non-compliance would not have a Covenant Material Adverse Effect as expressly provided otherwise:
(i) at the Purchaser may waive any condition set out in Clause 3.2 (other than Clause 3.2(iii)) by notice in writing to the SellerCompletion Date; and
(iic) no Material Adverse Effect having arisen between the Offer Date and the Completion Date which is continuing as at the Completion Date.
4.2 The obligation of the Sellers to complete the sale and purchase of the Shares and the Warrants under this Agreement shall, unless otherwise waived by the Institutional Seller, be conditional on, save as specifically disclosed by the Purchaser to the Sellers in writing on or before the Offer Date, each of the warranties of the Purchaser contained in Clause 8.7 (disregarding all qualifications and exceptions contained therein relating to materiality) being accurate in all material respects immediately prior to Completion by reference to the facts and circumstances subsisting at the Completion Date (on the basis that any reference in such Warranties, whether express or implied, to the Offer Date is substituted by a reference to the Completion Date) (the “Purchaser Condition”).
4.3 Subject to Clause 6.10, the obligation of the Parties to complete the sale and purchase of the Shares and the Warrants under this Agreement shall be conditional on the Federal Antimonopoly Service of the Russian Federation (“FAS”) having adopted a decision approving the Transaction and permitting its Completion without any breach of applicable Law (the “Russian Antitrust Approval” or the “Joint Condition”).
4.4 To the extent that the Russian Antitrust Approval has not been obtained by the time of the execution of this Agreement, the Parties shall continue to be bound by, and shall continue to comply with, the provisions of Clause 5 and Schedule 2 to the Offer Letter until such time as the Russian Antitrust Approval is obtained (and the provisions of Schedule 2 shall accordingly be deemed to be incorporated herein in their entirety).
4.5 The Purchaser may at any time waive in whole or in part any of the Seller may waive any condition set out Conditions in Clause 3.1 4.1 by notice to the Sellers. The Institutional Seller, on behalf of all Sellers, may at any time waive in writing whole or in part the Purchaser Condition by notice to the Purchaser.
3.8. Within 3 (three) 4.6 Each Party shall notify the other Parties promptly upon, and in any event within two Business Days following:of, becoming aware that a Condition has been fulfilled or is no longer capable of fulfillment.
(i) 4.7 Subject to Clause 6.10, if the satisfaction Conditions have not been satisfied or waiver (if waived by the Purchaser Long Stop Date (or such later date as the Parties may agree in accordance with writing) this Agreement) of the last of the conditions to be satisfied by the Seller as set out in Clauses 3.2 Agreement shall automatically terminate (other than the condition set out Surviving Provisions).
4.8 In the event that this Agreement is terminated pursuant to Clause 4.7, no Party (nor any of their respective Related Persons) shall have any claim under this Agreement of any nature whatsoever against any other Party (or any of their respective Related Persons) except in Clause 3.2(iii)) respect of any rights and 3.3(i) (other than conditions liabilities which by their very nature are to be satisfied at Completion), the Seller shall provide to the Purchaser written confirmation (in the form attached as Part A to Schedule 2) have accrued before termination or under any of the satisfaction or waiver of such conditions; and
(ii) the satisfaction or waiver (if waived by the Seller in accordance with this Agreement) of the last of the conditions to be satisfied by the Purchaser as set out in Clauses 3.1 and 3.3 (other than conditions which by their very nature are to be satisfied at Completion), the Purchaser shall provide to the Seller a written confirmation (in the form attached as Part B to Schedule 2) of satisfaction or waiver of such conditions, each such written confirmation a “CP Confirmation Certificate”. For the avoidance of any doubt, it is clarified that if a CP Confirmation Certificate is wrongfully withheld, it shall not affect the right of the relevant Party to enforce Completion on the Completion Date in accordance with the terms of this AgreementSurviving Provisions.
Appears in 1 contract
Conditions to Completion. 3.1. The obligation of the Seller 4.1 Subject to sell the Sale Shares and proceed with the Completion in terms of Clause 5 of this Agreement shall be conditional on the satisfaction of following conditions, other than those which by their very nature are to be satisfied at Completion, (to the extent that they have not been waived by the Seller (other than the condition set out in Clauses 3.1(ii) below which shall not be waived), in accordance with this Agreement):
(i) The Purchaser having delivered to the Seller on the Execution Date certified copies of the resolutions duly passed by its board of directors or equivalent authority approving the execution, delivery and performance by the Purchaser of the Transaction Documents.
(ii) The Conclusion of the Open Offer.
(iii) The Purchaser Warranties being true in all material respects as of the Completion Date, except that the Purchaser Warranties in Clauses 1 of Schedule 4 being true in all respects as of the Completion Date.
(iv) The Purchaser not being in material breach of the agreements, covenants, obligations, and conditions required by this Agreement to be so performed or complied with by it, at or before the Completion Date (including, but not limited to4.2, the obligations in respect of the Open Offer as set out in Clause 6.1 hereof).
(v) Simultaneous consummation of the sale of Sale ADSs under the GA Securities Purchase Agreement (including satisfaction of the conditions to completion thereunder), provided that the Seller shall not be entitled to rely on this sub-clause (v) if the Seller is then in breach of the GA Securities Purchase Agreement.
3.2. The obligation of the Purchaser to purchase consummate the Sale Shares and proceed with Completion in terms of Clause 5 of transactions contemplated by this Agreement shall be conditional on subject to the satisfaction satisfaction, prior to or at Completion, of each of the following conditionsconditions (and the Purchaser shall upon its request have been provided evidence acceptable to the Purchaser of such satisfaction):
4.1.1 the obtaining of a legal opinion from the Purchaser's PRC counsel, other than those which by their very nature are at the cost and expense of the Vendor up to US$4000 (with any excess cost and expense to be satisfied at Completion, (to the extent that they have not been waived paid by the Purchaser (other than Purchaser) in substantially the condition form as set out in Clause 3.2 (iii) below which shall Schedule 20;
4.1.2 the Warranties remaining true and accurate and not be waived), in accordance with misleading as at the date of this Agreement):
(i) The Seller having delivered to Agreement and as at the Purchaser on the Execution Completion Date certified copies of the resolutions duly passed by the Seller’s board of directors or equivalent authority (where applicable) approving the execution, delivery and performance by the Seller of the Agreement.
(ii) The Seller Warranties being true in all material respects (except for those that are already qualified as to a materiality standard in which case they shall be true and accurate and not misleading as of such dates);
4.1.3 the Vendor having complied with all pre-Completion obligations specified in Clauses 6.4 through 6.13 (and in the remainder of Clause 6), and otherwise having performed all of the covenants and agreements required to be performed by it under this Agreement on or prior to the Completion Date;
4.1.4 all necessary consents, except that approvals, permits, licences and waivers required to be given by third parties to the Seller Warranties in Clause 1.1 and Clause 2 of Part A of Schedule 3 being true in all respects as Vendor for the consummation by the Vendor of the Completion Date.transactions contemplated under this Agreement having been granted (including without limitation any relevant governmental or official authorities), and being in full force and effect, for the sale and purchase of the Shares;
(iii) Simultaneous 4.1.5 no statute, suit, proceeding, order or regulation which would or could reasonably be expected to prohibit or restrict the sale and purchase of any of the Shares, the consummation of the transactions contemplated under this Agreement or the Founders’ SPA (including satisfaction operation of the conditions to completion thereunder).
(iv) The Seller not being in material breach business of any member of the agreementsGroup after Completion as presently conducted having been in effect or taken by, covenantsor being threatened or pending before, obligations, any relevant governmental or official authority;
4.1.6 the due execution and conditions required by this Agreement to be so performed or complied with delivery by the SellerVendor, as applicableits Associates, at Mr. Lo and/or GP Industries Limited to the Purchaser of each of (a) the Transitional Service Agreement; (b) the Strategic Supply Agreement; (c) the Deed of Taxation Indemnity; (d) the HK Trademarks Assignment; (e) the Safety Marks Assignment; (f) the Domain Names Assignment; (g) the GPI Deed of Undertaking; (h) the Payables/Receivables Transfer Agreement; (i) the LTK Wiring Transfer Agreement; and (j) the Completion certificate referenced in Clause 5.2.1.3;
4.1.7 delivery to the Purchaser of evidence reasonably acceptable to the Purchaser of (a) the Bank Debt and the Bank Debt Payoff Amount, including without limitation written confirmation from the relevant lenders that none of such Bank Debt is secured by any Encumbrances on any assets of the Group or any shares of any member of the Group, which written confirmation shall be of a date no more than five (5) Business Days before the Completion Date.
, (vb) Simultaneous consummation payment of the sale fees of the Sale ADSs under Purchaser's Solicitors to the GA Securities Purchase Agreement extent required by Clause 4.1.1, (c) LTK Newco International having no liabilities at Completion beyond the International/Macao/US Payables, (d) completion of the Segregations and (e) the landlord of the Leased Property currently leased by LTK Dalian having entered into a new lease with LTK Dalian for a term of not less than five years commencing from 1 January 2007 at a rent and on terms as are reasonably acceptable to the Purchaser (including satisfaction registration of such lease with and obtaining building and other permits from PRC government authorities);
4.1.8 no Material Adverse Effect having occurred between the conditions to completion thereunder).
3.3. The obligations of the Parties to proceed with Completion in terms of Clause 5 date of this Agreement shall be conditional on the following conditions, or their satisfaction subject only to and Completion:;
(i) there not being in effect any writ, judgment, injunction, decree, or similar order of any court or other authority or law restraining or otherwise preventing consummation of the Transactions, including the 4.1.9 all actions to be taken at Completion.by the Vendor in connection with consummation of the transactions contemplated hereunder and all certificates, opinions, instruments, evidence and other documents required to effect the transactions contemplated hereunder being satisfactory in form and substance to the Purchaser;
(ii) 4.1.10 on the Completion Date, there is not existing any damage to or destruction of any parts of the business of any member of the Group that, individually or in the aggregate, would materially impair the use or occupancy of the assets or operation of the business of any member of the Group; and
4.1.11 the Purchaser having found acceptable, in its absolute discretion, (a) any waiting periods under updates to the HSR Act or other applicable Anti-trust Laws in respect of, Disclosure Letter made by the Vendor pursuant to Clause 6.14 and (b) any Approvals by any Governmental Authority required for breach, non-compliance or untruth of or regarding the consummation ofWarranties, obligations, covenants or agreements of the Transactions shall have been obtained, expired or terminated, as applicableVendor that are noted in the Completion certificate delivered to the Purchaser pursuant to Clause 5.2.1.3.
3.4. 4.2 The Purchaser may, in its absolute discretion, waive all or any of the Conditions applicable to it as set out in Clause 4.1 at any time by specific notice in writing to such effect to the Vendor's Solicitors, in which event the Vendor shall not be liable to the Purchaser for any breach of Warranties and/or Pre-Completion Obligations to the extent (and only to the extent) such breach relates to such specifically waived Conditions including through the Vendor's associated indemnity obligations with respect to Clauses 9.1.1 and 9.1.
4.3 The obligation of the Vendor to consummate the transactions contemplated by this Agreement shall be subject to the satisfaction, prior to or at Completion, of the conditions that (a) the representations and warranties set out in Schedule 18 remain true and accurate and not misleading as at the date of this Agreement and as at the Completion Date in all material respects (except for those that are already qualified as to a materiality standard in which case they shall be true and accurate and not
4.4 The Purchaser shall make all reasonable efforts use its best endeavours to achieve satisfaction procure the fulfilment of each condition the Conditions set out in Clauses 3.1 and 3.3 as soon as possible after the Execution Date.
3.5. The Seller shall make all reasonable efforts to achieve satisfaction of each condition set out in Clauses 3.2 4.1.1 (other than Clause 3.2(iii)) and 3.3(i) as soon as possible after the Execution Date.
3.6. The Seller and the Purchaser, as the case may be, shall each notify the other promptly upon becoming aware that any of the conditions set out in Clause 3 have been satisfied or have become incapable of satisfaction or waiver, other than with respect to those conditions that have to be satisfied as of the Completion.
3.7. At any time prior to or on the Long Stop Date, to the extent permitted under Applicable Law and save as expressly provided otherwise:
(i) the Purchaser may waive any condition set out in Clause 3.2 (other than Clause 3.2(iii)) by notice in writing to the Seller; and
(ii) the Seller may waive any condition set out in Clause 3.1 by notice in writing to the Purchaser.
3.8. Within 3 (three) Business Days following:
(i) the satisfaction or waiver (if unless waived by the Purchaser in accordance with this Agreement) of the last of the conditions pursuant to be satisfied by the Seller as set out in Clauses 3.2 (other than the condition set out in Clause 3.2(iii)4.2) and 3.3(i) 4.3 (other than conditions which by their very nature are to be satisfied at Completion), the Seller shall provide to the Purchaser written confirmation (in the form attached as Part A to Schedule 2) of the satisfaction or waiver of such conditions; and
(ii) the satisfaction or waiver (if unless waived by the Seller in accordance with this AgreementVendor pursuant to Clause 4.3) of the last of the conditions to be satisfied by the Purchaser as set out in Clauses 3.1 and 3.3 (other than conditions which by their very nature are to be satisfied at Completion), the Purchaser shall provide prior to the Seller a written confirmation (date specified in the form attached as Part B to Schedule 2) of satisfaction or waiver of such conditions, each such written confirmation a “CP Confirmation Certificate”. For the avoidance of any doubt, it is clarified that if a CP Confirmation Certificate is wrongfully withheld, it shall not affect the right of the relevant Party to enforce Completion on the Completion Date in accordance with the terms of this AgreementClause 4.
Appears in 1 contract
Sources: Agreement for the Sale and Purchase of Shares (Belden CDT Inc.)
Conditions to Completion. 3.1. 3.1 The obligation obligations of each Purchaser to proceed to Completion as against any Seller, in all respects, is conditional upon the fulfillment to the reasonable satisfaction of such Purchaser, or the waiver by such Purchaser (except where prohibited by Applicable Law), of the Seller to sell the Sale Shares and proceed with the Completion in terms of Clause 5 of this Agreement shall be conditional on the satisfaction of following conditions, other than those which conditions precedent by their very nature are to be satisfied at Completion, (to the extent that they have not been waived by the each Seller (other than the condition set out in Clauses 3.1(ii) below which shall not be waived), in accordance with this Agreement“Conditions Precedent”):
(ia) The each Seller having provided to each Purchaser having delivered to the Seller on the Execution Date a certified copies copy of the resolutions duly a resolution passed by its board of directors or equivalent authority approving governing body, authorizing the execution, delivery and performance by the Purchaser implementation of the Transaction Documents.
(ii) The Conclusion provisions of the Open Offer.
(iii) The Purchaser Warranties being true in all material respects as of the Completion Date, except that the Purchaser Warranties in Clauses 1 of Schedule 4 being true in all respects as of the Completion Date.
(iv) The Purchaser not being in material breach of the agreements, covenants, obligations, and conditions required by this Agreement to be so performed or complied with by it, at or before the Completion Date (including, but not limited to, the obligations in respect of the Open Offer as set out in Clause 6.1 hereof).
(v) Simultaneous and consummation of the sale of Sale ADSs under the GA Securities Purchase Agreement (including satisfaction its portion of the conditions to completion thereunder), provided that the Seller shall not be entitled to rely on this sub-clause (v) if the Seller is then in breach of the GA Securities Purchase Agreement.
3.2. The obligation of the Purchaser to purchase the Sale Shares to each Purchaser;
(b) in respect of each Seller, the Seller’s Warranties being true, accurate, complete and proceed with not misleading in all respects as at the date hereof and at the Completion Date, and there having been no breach of any obligations of any Seller under this Agreement;
(c) no injunction, restraining order or other order or any other legal or regulatory restraint or prohibition being in terms effect or having been issued or made by any court of Clause 5 of this Agreement shall be conditional on competent jurisdiction or any other Person which prevents or restricts Completion or the satisfaction consummation of the following conditions, other than those which by their very nature are to be satisfied at Completion, (to transactions and arrangements contemplated in the extent that they have not been waived by the Purchaser (other than the condition set out in Clause 3.2 (iii) below which shall not be waived), in accordance with this Agreement):;
(id) The each Seller having delivered to the Purchaser on the Execution Date certified copies of the resolutions Company: (i) duly passed by the Seller’s board of directors or equivalent authority (where applicable) approving the execution, delivery executed and performance by the Seller of the Agreement.
stamped share transfer forms and (ii) The original share certificates relating to the Sale Shares to be sold by it to such Purchaser;
(e) each Seller Warranties being having delivered to each Purchaser, a copy of valid Tax Residency Certificate, certified to be a true in all material respects as copy by a director or secretary of such Seller along with Form 10F;
(f) each Seller (other than Seller 5) having delivered to each Purchaser a copy of the Completion DateCategory I Global Business License issued by the Financial Services Commission (Mauritius) (as applicable), except that the Seller Warranties in Clause 1.1 and Clause 2 of Part A of Schedule 3 being certified to be a true in all respects as copy by a director or secretary of the Completion Date.Seller;
(iiig) Simultaneous consummation of the transactions contemplated each Seller having obtained all approvals (including all corporate and Governmental Approvals and approvals under the Founders’ SPA (including satisfaction Shareholders' Agreement and the Articles of the conditions to completion thereunder).
(ivAssociation) The Seller not being in material breach of the agreements, covenants, obligations, and conditions required by it in order to perform its obligations under this Agreement to be so performed or complied with by the SellerAgreement, as applicable, at or before the Completion Date.
(v) Simultaneous consummation of including the sale of the Sale ADSs Shares;
(h) each Seller having provided to each Purchaser an opinion from a Big 4 Accounting Firm opining that the Purchaser should not be obligated to withhold any taxes under the GA Securities Purchase Agreement (including satisfaction IT Act in relation to the payment of any portion of the conditions Consideration to completion thereunder).
3.3. The obligations the Seller and there should be no obligation on the Purchaser as a representative assessee (as defined under section 160 read with section 163 of the Parties to proceed with Completion in terms IT Act) of Clause 5 the Relevant Seller for payment of Transaction Tax under this Agreement shall be conditional on the following conditions, or their satisfaction subject only to Completion:Agreement;
(i) there not being each Seller having provided each Purchaser with the details set out in effect any writAnnexure II (Information) for the purpose of filing Form 15CA (Part D) as required under the IT Act, judgment, injunction, decreein relation to the remittance of the Consideration;
(j) no Seller having converted the Sale Shares into equity shares, or similar order of any court or other authority or law restraining or otherwise preventing consummation applied for conversion of the TransactionsSale Shares into equity shares and no rights, including interests or advantages attached to the actions Sale Shares having been modified or been agreed to be taken at Completion.modified except pursuant to this Agreement, the Shareholders' Agreement or the Articles of Association; and
(iik) (a) any waiting periods under the HSR Act or other applicable Anti-trust Laws in respect ofeach Seller having delivered a CP Satisfaction Notice pursuant to Clause 3.2, and (b) any Approvals by any Governmental Authority required for each Seller shall use its best endeavours to procure the consummation of, the Transactions shall have been obtained, expired or terminated, as applicable.
3.4. The Purchaser shall make all reasonable efforts to achieve satisfaction of each condition set out in Clauses 3.1 and 3.3 of such Condition Precedent as soon as possible after the Execution Date.
3.5. The Seller shall make all reasonable efforts to achieve satisfaction of each condition set out reasonably practicable and in Clauses 3.2 any case no later than 10 (other than Clause 3.2(iii)ten) and 3.3(i) as soon as possible after the Execution Date.
3.6. The Seller and the Purchaser, as the case may be, shall each notify the other promptly upon becoming aware that any of the conditions set out in Clause 3 have been satisfied or have become incapable of satisfaction or waiver, other than with respect to those conditions that have to be satisfied as of the Completion.
3.7. At any time Business Days prior to or on the Long Stop Date.
3.2 The Sellers shall, immediately upon the satisfaction of the Conditions Precedent, deliver to each Purchaser, a written notice (“CP Satisfaction Notice”) in the form as set out in Annexure III which shall enclose appropriate documentary evidence (to the extent permitted under Applicable Law and save as expressly provided otherwise:
(iavailable) to support the Purchaser may waive any condition set out statements in Clause 3.2 (other than Clause 3.2(iii)) by notice in writing to such letter, confirming that the Seller; and
(ii) the Seller may waive any condition Conditions Precedent set out in Clause 3.1 by notice in writing have been satisfied.
3.3 The obligation of each Seller to proceed with Completion with any Purchaser is conditional upon the fulfillment to the reasonable satisfaction of such Seller, or the waiver by such Seller, of the following conditions precedent:
(a) the relevant Purchaser’s warranties in Clause 5.4 being true, accurate, complete and not misleading in all respects at the relevant Completion Date, and there having been no material breach of any of obligations of each Purchaser under this Agreement;
(b) no injunction, restraining order or other order or any other legal or regulatory restraint or prohibition being in effect or having been issued or made by any court of competent jurisdiction or any other Person which prevents or restricts Completion or the consummation of the transactions and arrangements contemplated in the Agreement as between such Seller and the relevant Purchaser.
3.8. Within 3 (three) Business Days following:
(i) 3.4 Each Seller undertakes that post the satisfaction or waiver (if waived by the Purchaser in accordance with this Agreement) of the last of the conditions to be satisfied by the Seller as set out in Clauses 3.2 (other than the condition set out in Clause 3.2(iii)) and 3.3(i) (other than conditions which by their very nature are to be satisfied at Completion), the Seller shall provide to the Purchaser written confirmation (in the form attached as Part A to Schedule 2) of the satisfaction or waiver of such conditions; and
(ii) the satisfaction or waiver (if waived by the Seller in accordance with this Agreement) of the last of the conditions to be satisfied by the Purchaser as set out in Clauses 3.1 and 3.3 (other than conditions which by their very nature are to be satisfied at Completion), the Purchaser shall provide to the Seller a written confirmation (in the form attached as Part B to Schedule 2) of satisfaction or waiver of such conditions, each such written confirmation a “CP Confirmation Certificate”. For the avoidance of any doubt, it is clarified that if a CP Confirmation Certificate is wrongfully withheldExecution Date, it shall not affect convert the right Sale Shares into equity shares, or apply for conversion of the relevant Party to enforce Completion on the Completion Date in accordance with the terms of this AgreementSale Shares into equity shares.
Appears in 1 contract
Sources: Share Purchase Agreement
Conditions to Completion. 3.1. The obligation of the Seller to sell the Sale Shares and proceed with the Completion in terms of Clause 5 of this Agreement shall be conditional on the satisfaction of following conditions, other than those which by their very nature are to be satisfied at Completion, (to the extent that they have not been waived by the Seller (other than the condition set out in Clauses 3.1(ii) below which shall not be waived), in accordance with this Agreement):
(i) The Purchaser having delivered to the Seller on the Execution Date certified copies of the resolutions duly passed by its board of directors or equivalent authority approving the execution, delivery and performance by the Purchaser of the Transaction Documents.
(ii) The Conclusion of the Open Offer.
(iii) The Purchaser Warranties being true in all material respects as of the Completion Date, except that the Purchaser Warranties in Clauses 1 of Schedule 4 being true in all respects as of the Completion Date.
(iv) The Purchaser not being in material breach of the agreements, covenants, obligations, and conditions required by this Agreement to be so performed or complied with by it, at or before the Completion Date (including, but not limited to, the obligations in respect of the Open Offer as set out in Clause 6.1 hereof).
(v) Simultaneous consummation of the sale of Sale ADSs under the GA Securities Purchase Agreement (including satisfaction of the conditions to completion thereunder), provided that the Seller shall not be entitled to rely on this sub-clause (v) if the Seller is then in breach of the GA Securities Purchase Agreement.
3.2. The obligation of the Purchaser to purchase the Sale Shares and proceed with Completion in terms of Clause 5 of this Agreement shall be conditional on the satisfaction of the following conditions, other than those which by their very nature are to be satisfied at Completion, (to the extent that they have not been waived by the Purchaser (other than the condition set out in Clause 3.2 (iii) below which shall not be waived), in accordance with this Agreement):
(i) The Seller having delivered to the Purchaser on the Execution Date certified copies of the resolutions duly passed by the Seller’s board of directors or equivalent authority (where applicable) approving the execution, delivery and performance by the Seller of the Agreement.
(ii) The Seller Warranties being true in all material respects as of the Completion Date, except that the Seller Warranties in Clause 1.1 and Clause 2 of Part A of Schedule 3 being true in all respects as of the Completion Date.
(iii) Simultaneous consummation of the transactions contemplated under the Founders’ SPA (including satisfaction of the conditions to completion thereunder).
(iv) The Seller not being in material breach of the agreements, covenants, obligations, and conditions required by this Agreement to be so performed or complied with by the Seller, as applicable, at or before the Completion Date.
(v) Simultaneous consummation of the sale of the Sale ADSs under the GA Securities Purchase Agreement (including satisfaction of the conditions to completion thereunder).
3.3. The obligations of the Parties Sellers to proceed with Completion in terms sell the Purchased Shares and the obligations of Clause 5 of this Agreement MEMC to purchase the Purchased Shares and effect the Closing shall be conditional on subject to the following conditionsobtaining of, or their the satisfaction subject only to Completion:
(i) there not being in effect any writ, judgment, injunction, decree, or similar order of any court waiver by MEMC or other authority or law restraining or otherwise preventing consummation of the Transactions, including the actions to be taken at Completion.
(ii) (a) any waiting periods under the HSR Act or other applicable Anti-trust Laws in respect of, and (b) any Approvals by any Governmental Authority required for the consummation of, the Transactions shall have been obtained, expired or terminated, as applicable.
3.4. The Purchaser shall make all reasonable efforts to achieve satisfaction of each condition set out in Clauses 3.1 and 3.3 as soon as possible after the Execution Date.
3.5. The Seller shall make all reasonable efforts to achieve satisfaction of each condition set out in Clauses 3.2 (other than Clause 3.2(iii)) and 3.3(i) as soon as possible after the Execution Date.
3.6. The Seller and the PurchaserSellers, as the case may be, shall each notify on or prior to the other promptly upon becoming aware that any of the conditions set out in Clause 3 have been satisfied or have become incapable of satisfaction or waiver, other than First Closing Date with respect to those conditions that have the First Closing or the Second Closing Date with respect to be satisfied the Second Closing of all of the following conditions:
(a) CSC, CDIB and CTB having waived, in writing, their respective rights under the Shareholders Agreement entered into among MEMC, CSC, CDIB and CTB and dated as of May 24, 1994, including, without limitation, the share transfer notice requirements and share transfer restrictions set forth under Article IX of the said Shareholders Agreement;
(b) all representations and warranties of the Parties contained in this Agreement having been true when made and being true in all respects at and as of the Completion.applicable Closing Date as if such representations and warranties were made at and as of such date;
3.7. At any time (c) all other obligations of MEMC and of the Sellers under this Agreement which should be performed on or prior to the applicable Closing Date having been performed or on complied with or otherwise waived, including the Long Stop Datetender of all of the closing deliveries required by Article 3 of this Agreement;
(d) all Consents of Governmental Authorities, to if any, necessary for the extent permitted consummation of the transactions contemplated by this Agreement and the performance of the Parties' obligations contained herein shall have been obtained and be in full force and effect, including, without limitation, any approval from the SIPA;
(e) the transactions contemplated by this Agreement shall have been approved by or under Applicable Law and save as expressly provided otherwise:
the authority of each of the Sellers' Board of Directors, for avoidance of doubt, (i) MEMC shall have no obligation to purchase the Purchaser may waive any condition set out in Clause 3.2 Purchased Shares owned by CSC and CDIB and effect the First Closing unless the transactions contemplated by this Agreement shall have been approved by or under the authority of the Board of Directors of both CSC and CDIB and (other than Clause 3.2(iii)ii) MEMC shall have no obligation to purchase the Purchased Shares owned by notice in writing to CTB and effect the SellerSecond Closing unless the First Closing shall have been effected; and
(iif) no action or proceeding shall have been instituted or threatened before any court or other governmental body or by any public authority seeking to restrain or prohibit the Seller may waive any condition set out in Clause 3.1 by notice in writing to the Purchaser.
3.8. Within 3 (three) Business Days following:
(i) the satisfaction or waiver (if waived by the Purchaser in accordance with this Agreement) sale and purchase of the last of the conditions to be satisfied by the Seller as set out in Clauses 3.2 (other than the condition set out in Clause 3.2(iii)) and 3.3(i) (other than conditions which by their very nature are to be satisfied at Completion), the Seller shall provide to the Purchaser written confirmation (in the form attached as Part A to Schedule 2) of the satisfaction or waiver of such conditions; and
(ii) the satisfaction or waiver (if waived by the Seller in accordance with this Agreement) of the last of the conditions to be satisfied by the Purchaser as set out in Clauses 3.1 and 3.3 (other than conditions which by their very nature are to be satisfied at Completion), the Purchaser shall provide to the Seller a written confirmation (in the form attached as Part B to Schedule 2) of satisfaction or waiver of such conditions, each such written confirmation a “CP Confirmation Certificate”. For the avoidance of any doubt, it is clarified that if a CP Confirmation Certificate is wrongfully withheld, it shall not affect the right of the relevant Party to enforce Completion on the Completion Date in accordance with the terms of this AgreementPurchased Shares hereunder.
Appears in 1 contract
Sources: Share Sale and Purchase Agreement (Memc Electronic Materials Inc)
Conditions to Completion. 3.1. The obligation of the Seller to sell the Sale Shares and proceed with the Completion in terms of Clause 5 of this Agreement shall be conditional on the satisfaction of following conditions, other than those which by their very nature are to be satisfied at Completion, (to the extent that they have not been waived by the Seller (other than the condition set out in Clauses 3.1(ii) below which shall not be waived), in accordance with this Agreement):
(i) The Purchaser having delivered to the Seller on the Execution Date certified copies of the resolutions duly passed by its board of directors or equivalent authority approving the execution, delivery and performance by the Purchaser of the Transaction Documents.
(ii) The Conclusion of the Open Offer.
(iii) The Purchaser Warranties being true in all material respects as of the Completion Date, except that the Purchaser Warranties in Clauses 1 of Schedule 4 being true in all respects as of the Completion Date.
(iv) The Purchaser not being in material breach of the agreements, covenants, obligations, and conditions required by this Agreement to be so performed or complied with by it, at or before the Completion Date (including, but not limited to, the obligations in respect of the Open Offer as set out in Clause 6.1 hereof).
(v) Simultaneous consummation of the sale of Sale ADSs under the GA Securities Purchase Agreement (including satisfaction of the conditions to completion thereunder), provided that the Seller shall not be entitled to rely on this sub-clause (v) if the Seller is then in breach of the GA Securities Purchase Agreement.
3.2. The obligation of the Purchaser to purchase the Sale Shares and proceed with Completion in terms of Clause 5 of this Agreement shall be conditional on the satisfaction of the following conditions, other than those which by their very nature are to be satisfied at Completion, (to the extent that they have not been waived by the Purchaser (other than the condition set out in Clause 3.2 (iii) below which shall not be waived), in accordance with this Agreement):
(i) The Seller having delivered to the Purchaser on the Execution Date certified copies of the resolutions duly passed by the Seller’s board of directors or equivalent authority (where applicable) approving the execution, delivery and performance by the Seller of the Agreement.
(ii) The Seller Warranties being true in all material respects as of the Completion Date, except that the Seller Warranties in Clause 1.1 and Clause 2 of Part A of Schedule 3 being true in all respects as of the Completion Date.
(iii) Simultaneous consummation of the transactions contemplated under the Founders’ SPA (including satisfaction of the conditions to completion thereunder).
(iv) The Seller not being in material breach of the agreements, covenants, obligations, and conditions required by this Agreement to be so performed or complied with by the Seller, as applicable, at or before the Completion Date.
(v) Simultaneous consummation of the sale of the Sale ADSs under the GA Securities Purchase Agreement (including satisfaction of the conditions to completion thereunder).
3.3. 5.1 The obligations of the Parties parties to proceed with Completion in terms complete the purchase of Clause 5 of this Agreement shall be the Carnival Shares and the Volim Participations are conditional on on:
(a) the following conditions, or their satisfaction subject only to Completiondocuments being in the Agreed Form:
(i) there not being in effect any writ, judgment, injunction, decree, or similar order the Deed of any court or other authority or law restraining or otherwise preventing consummation of the Transactions, including the actions to be taken at Completion.Priority;
(ii) the Deposit Agreement;
(aiii) any waiting periods under the HSR Act or other applicable Anti-trust Laws in respect of, and Equitel Term Loan;
(iv) the Purchaser's Legal Opinion;
(v) the Seller's Legal Opinion;
(vi) the Service Agreement;
(vii) the Side Letter;
(viii) the Term Loan Agreement; and
(ix) the Warrant Agreement.
(b) any Approvals the delivery to the Purchaser of the Seller's Legal Opinion dated as of the date of Completion;
(c) the delivery to the Seller of the Purchaser's Legal Opinion, dated as of the date of Completion;
(d) the consent of the Financial and Development Secretary of Gibraltar to the transfer of the Carnival Shares pursuant to the Agreement;
(e) the Purchaser becoming beneficially entitled to the Consideration Stock and the obtaining by any Governmental Authority required the Purchaser of all necessary consents, authorities and permissions for the consummation of, transfer of the Transactions shall have been obtained, expired or terminated, as applicable.Consideration Stock to the Purchaser;
3.4. The Purchaser shall make all reasonable efforts to achieve satisfaction of each condition set out in Clauses 3.1 and 3.3 as soon as possible after the Execution Date.
3.5. The Seller shall make all reasonable efforts to achieve satisfaction of each condition set out in Clauses 3.2 (other than Clause 3.2(iii)) and 3.3(i) as soon as possible after the Execution Date.
3.6. 5.2 The Seller and the Purchaser, as the case Volim may be, shall each notify the other promptly upon becoming aware that waive any of the conditions set out in Clause 3 have been satisfied or have become incapable of satisfaction or waiverClauses 5.1(c), other than with respect to those conditions that have to be satisfied as of the Completion.
3.7(e). At any time prior to or on the Long Stop Date, to the extent permitted under Applicable Law and save as expressly provided otherwise:
(i) the The Purchaser may waive any condition of the conditions set out in Clause 3.2 Clause(s) 5.1 (other than Clause 3.2(iiib)) by notice in writing .
5.3 The parties shall use their respective reasonable endeavors to provide satisfaction of the Seller; and
(ii) the Seller may waive any condition conditions set out in Clause 3.1 by notice in writing to the Purchaser.
3.8. Within 3 (three) Business Days following:sub-clause 5.1
(ia) the The Seller will use its reasonable endeavours to procure satisfaction or waiver (if waived by the Purchaser in accordance with this Agreement) of the last of the conditions to be satisfied by the Seller as set out in sub-Clauses 3.2 5.1(b) and (other than d). The Purchaser shall use its reasonable endeavours to procure this satisfaction of the condition set out in Sub-Clause 3.2(iii5.1(c)) and 3.3(i) (other than conditions which by their very nature are to be satisfied at Completion), the Seller shall provide to the Purchaser written confirmation (in the form attached as Part A to Schedule 2) .
5.4 If any of the satisfaction or waiver of such conditions; and
(ii) the satisfaction or waiver (if waived by the Seller in accordance with this Agreement) of the last of the conditions to be satisfied by the Purchaser as Conditions set out in Clauses 3.1 sub-Clause 5.1 shall not have been fully satisfied, or if permitted expressly waived as permitted by Clause 5.2 by 12.00 am on 31 December 1999 then this Agreement shall lapse and 3.3 (other than conditions which by their very nature are be deemed to be satisfied at Completion), the Purchaser shall provide to the Seller a written confirmation (in the form attached as Part B to Schedule 2) of satisfaction or waiver of such conditions, each such written confirmation a “CP Confirmation Certificate”. For the avoidance of no effect without any doubt, it is clarified that if a CP Confirmation Certificate is wrongfully withheld, it shall not affect the right of the relevant Party parties being liable to enforce Completion on the Completion Date any other party in accordance with the terms any way whatsoever except for breaches of this AgreementClauses 14 (Confidentiality) and 15 (Announcements).
Appears in 1 contract
Conditions to Completion. 3.1. Clause 2 will not bind the Parties and Completion will not proceed unless:
(a) The obligation Acquirer and the Subscribers have notified the Treasurer of the Seller to sell Commonwealth of Australia of the proposed acquisition of the Sale Shares and proceed with the Completion in terms of Clause 5 of Subscription Shares by the Acquirer and the Subscribers pursuant to this Agreement shall be conditional on (FIRB Notification) and the satisfaction of following conditions, other than those which by their very nature are to be satisfied at Completion, (to the extent that they have not been waived by the Seller (other than the condition set out in Clauses 3.1(ii) below which shall not be waived), in accordance with this Agreement):
(i) The Purchaser having delivered to the Seller on the Execution Date certified copies Treasurer of the resolutions duly passed by its board Commonwealth of directors or equivalent authority approving the execution, delivery and performance by the Purchaser of the Transaction Documents.
(ii) The Conclusion of the Open Offer.
(iii) The Purchaser Warranties being true in all material respects as of the Completion Date, except that the Purchaser Warranties in Clauses 1 of Schedule 4 being true in all respects as of the Completion Date.
(iv) The Purchaser not being in material breach of the agreements, covenants, obligations, and conditions required by this Agreement to be so performed or complied with by it, at or before the Completion Date (including, but not limited to, the obligations in respect of the Open Offer as set out in Clause 6.1 hereof).
(v) Simultaneous consummation of the sale of Sale ADSs under the GA Securities Purchase Agreement (including satisfaction of the conditions to completion thereunder), provided that the Seller shall not be entitled to rely on this sub-clause (v) if the Seller is then in breach of the GA Securities Purchase Agreement.
3.2. The obligation of the Purchaser to purchase the Sale Shares and proceed with Completion in terms of Clause 5 of this Agreement shall be conditional on the satisfaction of the following conditions, other than those which by their very nature are to be satisfied at Completion, (to the extent that they have not been waived by the Purchaser (other than the condition set out in Clause 3.2 (iii) below which shall not be waived), in accordance with this Agreement):
(i) The Seller having delivered to the Purchaser on the Execution Date certified copies of the resolutions duly passed by the Seller’s board of directors or equivalent authority (where applicable) approving the execution, delivery and performance by the Seller of the Agreement.
(ii) The Seller Warranties being true in all material respects as of the Completion Date, except that the Seller Warranties in Clause 1.1 and Clause 2 of Part A of Schedule 3 being true in all respects as of the Completion Date.
(iii) Simultaneous consummation of the transactions contemplated under the Founders’ SPA (including satisfaction of the conditions to completion thereunder).
(iv) The Seller not being in material breach of the agreements, covenants, obligations, and conditions required by this Agreement to be so performed or complied with by the Seller, as applicable, at or before the Completion Date.
(v) Simultaneous consummation of the sale of the Sale ADSs under the GA Securities Purchase Agreement (including satisfaction of the conditions to completion thereunder).
3.3. The obligations of the Parties to proceed with Completion in terms of Clause 5 of this Agreement shall be conditional on the following conditions, or their satisfaction subject only to CompletionAustralia has either:
(i) there not being in effect any writ, judgment, injunction, decreeprovided written advice or confirmation which is unconditional, or similar order of any court or other authority or law restraining or otherwise preventing consummation subject only to conditions acceptable to USG and Boral (acting reasonably), stating that there is no objection to the proposed acquisition of the Transactions, including Sale Shares and the actions to be taken at Completion.Subscription Shares by the Acquirer and the Subscribers ; or
(ii) has become or is precluded (aat any time before Completion) any waiting periods under the HSR Act or other applicable Anti-trust Laws from making an order in respect of, the proposed acquisition of the Sale Shares and the Subscription Shares by the Acquirer and the Subscribers pursuant to this Agreement;
(b) any Approvals by any Governmental Authority required for USG and Boral have jointly submitted a courtesy letter to the consummation of, Australian Competition and Consumer Commission (ACCC) informing the Transactions shall have been obtained, expired or terminated, as applicable.
3.4. The Purchaser shall make all reasonable efforts to achieve satisfaction ACCC of each condition set out in Clauses 3.1 and 3.3 as soon as possible after the Execution Date.
3.5. The Seller shall make all reasonable efforts to achieve satisfaction proposed acquisition of each condition set out in Clauses 3.2 (other than Clause 3.2(iii)) and 3.3(i) as soon as possible after the Execution Date.
3.6. The Seller Sale Shares and the Purchaser, as Subscription Shares by the case may be, shall each notify Acquirer and the other promptly upon becoming aware that any Subscribers pursuant to this Agreement and of the conditions set out in Clause 3 have been satisfied or have become incapable of satisfaction or waiver, other than with respect to those conditions that have to be satisfied as proposed acquisition of the Completion.
3.7. At any time prior USG Contributed Shares by BAGL pursuant to or on the Long Stop Date, to the extent permitted under Applicable Law and save as expressly provided otherwisethis Agreement (ACCC Notification) and:
(i) the Purchaser may waive any condition set out in Clause 3.2 (other than Clause 3.2(iii)) by notice ACCC has informed USG in writing that it does not propose to intervene in the Sellermatter pursuant to Section 50 of the Competition and Consumer ▇▇▇ ▇▇▇▇; andor
(ii) either of the Seller may waive any condition set out following applies:
(A) the ACCC has not, within 45 days from the date of the ACCC Notification, or if later, by the day on which all other Conditions have been satisfied or waived in Clause 3.1 by notice accordance with this Agreement, requested that the Parties do not complete this Agreement or commenced an informal merger investigation in writing relation to the Purchaser.transactions contemplated by this Agreement (or any of them); or
3.8. Within 3 (threeB) Business Days followingthe ACCC has within the time period described in paragraph (A) above requested that the Parties do not complete this Agreement or commenced an informal merger investigation in relation to the transactions contemplated by this Agreement (or any of them), or both, but the ACCC has subsequently advised USG and Boral (or either of them) to the effect that the request no longer stands, it does not opposed the transaction in which the investigation was commenced, or both (as applicable);
(c) USG and Boral have jointly submitted a courtesy notification to the New Zealand Commerce Commission (NZCC) informing the NZCC of the proposed acquisition of the Sale Shares and the Subscription Shares by the Acquirer and the Subscribers pursuant to this Agreement and of the proposed acquisition of the USG Contributed Shares by BAGL pursuant to this Agreement (NZCC Notification) and:
(i) the satisfaction NZCC has informed USG in writing that it does not propose to intervene in the matter pursuant to Section 47 of the Commerce ▇▇▇ ▇▇▇▇; or
(ii) has not, within 45 days from the date of the NZCC Notification, or waiver (if waived later, by the Purchaser day on which all other Conditions have been satisfied or waived in accordance with this Agreement, indicated that a formal clearance application under Section 66(1) of the last Commerce Act 1986 would be appropriate, or otherwise indicated material concerns regarding the transaction that can be reasonably interpreted as suggesting an expectation that a formal clearance application be made, or if it has done so, USG and Boral have (or at least one of them has) submitted such an application and the NZCC has subsequently provided a letter advising that it gives clearance to USG and Boral to complete the transaction.
(d) all conditions precedent to be satisfied by completion under the Seller as set out in Clauses 3.2 Asia Sale Agreement (other than the equivalent of the specific condition set out in Clause 3.2(iiithis clause 3.2(d)) and 3.3(i) (other than conditions which by their very nature are to be have been satisfied at Completion), the Seller shall provide to the Purchaser written confirmation (in the form attached as Part A to Schedule 2) of the satisfaction or waiver of such conditions; and
(ii) the satisfaction or waiver (if waived by the Seller in accordance with this Agreement) of the last of the conditions to be satisfied by the Purchaser as set out in Clauses 3.1 and 3.3 that agreement. (other than conditions which by their very nature are to be satisfied at CompletionConditions), the Purchaser shall provide to the Seller a written confirmation (in the form attached as Part B to Schedule 2) of satisfaction or waiver of such conditions, each such written confirmation a “CP Confirmation Certificate”. For the avoidance of any doubt, it is clarified that if a CP Confirmation Certificate is wrongfully withheld, it shall not affect the right of the relevant Party to enforce Completion on the Completion Date in accordance with the terms of this Agreement.
Appears in 1 contract
Conditions to Completion. 3.1. 8.1 Conditions to Obligations of the Purchaser The obligation of the Seller Purchaser to sell effect the Sale Shares Transaction shall be subject to the fulfillment at or prior to Completion of the following conditions, unless Purchaser shall waive such fulfillment:
(1) This Agreement and proceed the Transaction contemplated hereby shall have received those approvals, consents, authorizations, and waivers from governmental and other regulatory agencies and other third parties (including lenders, those holders of debt securities and lessors) identified in the Schedule to Section 5.3.4 of the Acquired Business Disclosure Document, including the expiration of any applicable waiting period under any applicable laws.
(2) There shall not be in effect a preliminary or permanent injunction or other order by any court or other authority, which prohibits the consummation of the Transaction.
(3) VTI and ESPL shall have performed in all material respects each of their agreements and obligations contained in this Agreement and required to be performed on or prior to Completion and shall have complied with all material requirements, rules and regulations of all regulatory authorities having jurisdiction relating to the Completion Transaction.
(4) No material adverse change shall have taken place in terms the business, condition (financial or otherwise), operations, or prospects of Clause 5 the Acquired Business or the Acquired Assets since the date of the Acquired Business Balance Sheet other than those, if any, that result from the changes permitted by, and transactions contemplated by, this Agreement.
(5) The representations and warranties of VTI and ESPL set forth in this Agreement shall be conditional on the satisfaction of following conditions, other than those which by their very nature are to be satisfied at Completion, (to the extent that they have not been waived by the Seller (other than the condition set out in Clauses 3.1(ii) below which shall not be waived), in accordance with this Agreement):
(i) The Purchaser having delivered to the Seller on the Execution Date certified copies of the resolutions duly passed by its board of directors or equivalent authority approving the execution, delivery and performance by the Purchaser of the Transaction Documents.
(ii) The Conclusion of the Open Offer.
(iii) The Purchaser Warranties being true in all material respects as of the Completion Datedate of this Agreement and, except that in such respects as, in the Purchaser Warranties in Clauses 1 reasonable judgment of Schedule 4 being true in all respects the Purchaser, do not materially and adversely affect the business, condition (financial or otherwise), operations, or prospects of the Acquired Business or the Acquired Assets, as of the Completion DateTime as if made as of such time.
(iv6) The Purchaser not being in material breach shall have received from ESPL, a written statement, executed by a director of the agreementsESPL, covenants, obligations, and conditions required by this Agreement to be so performed or complied with by it, at or before dated the Completion Date (includingDate, but not limited to, as to the obligations in respect of the Open Offer as set out in Clause 6.1 hereof).
(v) Simultaneous consummation of the sale of Sale ADSs under the GA Securities Purchase Agreement (including satisfaction of the conditions to completion thereunderin paragraphs (3), provided that the Seller shall not be entitled to rely on this sub-clause (v4), and (5) if the Seller is then in breach above and including, as exhibits, copies of the GA Securities Purchase Agreementall authorizing board of directors resolutions and, where necessary, shareholder resolutions, and true and complete current copies of ESPL's Memorandum and Articles of Association.
3.2. (7) The obligation of the Purchaser to purchase the Sale Shares and proceed with Completion in terms of Clause 5 of this Agreement shall be conditional on the satisfaction of the following conditions, other than those which by their very nature are to be satisfied at Completion, (to the extent that they have not been waived by the Purchaser (other than the condition set out in Clause 3.2 (iii) below which shall not be waived)received from ESPL such documents, in accordance with this Agreement):
(i) The Seller having delivered a reasonably satisfactory form and substance to the Purchaser on the Execution Date certified copies of the resolutions duly passed by the Seller’s board of directors or equivalent authority (where applicable) approving the execution, delivery and performance by the Seller of the Agreement.
(ii) The Seller Warranties being true in all material respects as of the Completion Date, except that the Seller Warranties in Clause 1.1 and Clause 2 of Part A of Schedule 3 being true in all respects as of the Completion Date.
(iii) Simultaneous consummation of the transactions contemplated under the Founders’ SPA (including satisfaction of the conditions to completion thereunder).
(iv) The Seller not being in material breach of the agreements, covenants, obligations, and conditions required by this Agreement Counsel to be so performed or complied with by the Seller, as applicable, at or before the Completion Date.
(v) Simultaneous consummation of the sale of the Sale ADSs under the GA Securities Purchase Agreement (including satisfaction of the conditions to completion thereunder).
3.3. The obligations of the Parties to proceed with Completion in terms of Clause 5 of this Agreement shall be conditional on the following conditions, or their satisfaction subject only to Completion:
(i) there not being in effect any writ, judgment, injunction, decree, or similar order of any court or other authority or law restraining or otherwise preventing consummation of the Transactions, including the actions to be taken at Completion.
(ii) (a) any waiting periods under the HSR Act or other applicable Anti-trust Laws in respect of, and (b) any Approvals by any Governmental Authority required for the consummation of, the Transactions shall have been obtained, expired or terminated, as applicable.
3.4. The Purchaser shall make all reasonable efforts to achieve satisfaction of each condition set out in Clauses 3.1 and 3.3 as soon as possible after the Execution Date.
3.5. The Seller shall make all reasonable efforts to achieve satisfaction of each condition set out in Clauses 3.2 (other than Clause 3.2(iii)) and 3.3(i) as soon as possible after the Execution Date.
3.6. The Seller and the Purchaser, as the case may be, shall each notify the other promptly upon becoming aware that any of the conditions set out in Clause 3 have been satisfied or have become incapable of satisfaction or waiver, other than with respect sufficient to those conditions that have to be satisfied as of the Completion.
3.7. At any time prior to or on the Long Stop Date, transfer title to the extent permitted under Applicable Law and save as expressly provided otherwise:
(i) the Purchaser may waive any condition set out in Clause 3.2 (other than Clause 3.2(iii)) by notice in writing to the Seller; and
(ii) the Seller may waive any condition set out in Clause 3.1 by notice in writing Acquired Assets to the Purchaser.
3.8. Within 3 (three) Business Days following:
(i) the satisfaction or waiver (if waived by the Purchaser in accordance with this Agreement) of the last of the conditions 8) VTI and ESPL will use commercially reasonable efforts to be satisfied by the Seller as set out in Clauses 3.2 (other than the condition set out in Clause 3.2(iii)) and 3.3(i) (other than conditions which by their very nature are to be satisfied at Completion), the Seller shall provide make available to the Purchaser written confirmation (in the form attached prior to Completion an updated unaudited balance sheet and income statement with related notes and schedules as Part A to Schedule 2) of the satisfaction or waiver of such conditions; and
(ii) the satisfaction or waiver (if waived by the Seller in accordance with this Agreement) end of the last month immediately prior to the Completion Date. If those updated financial statements are produced, they shall, for purposes of the conditions definition of "Unaudited Financial Statements," replace and supersede the balance sheet as at 31st October, 2000 and the income statement for the period ended 31st October, 2000, in their entirety, for all purposes relevant to be satisfied by the Purchaser as set out in Clauses 3.1 and 3.3 (other than conditions which by their very nature are to be satisfied at Completion), the Purchaser shall provide to the Seller a written confirmation (in the form attached as Part B to Schedule 2) of satisfaction or waiver of such conditions, each such written confirmation a “CP Confirmation Certificate”. For the avoidance of any doubt, it is clarified that if a CP Confirmation Certificate is wrongfully withheld, it shall not affect the right of the relevant Party to enforce Completion on the Completion Date in accordance with the terms of this Agreement.
Appears in 1 contract
Conditions to Completion. 3.1. The obligation of the Seller to sell the Sale Shares and proceed with the 6.1 Completion in terms of Clause 5 of this Agreement shall be conditional on the satisfaction of following conditions, other than those which by their very nature are to be satisfied at Completion, (to the extent that they have not been waived by the Seller (other than the condition set out in Clauses 3.1(ii) below which shall not be waived), in accordance with this Agreement):
(i) The Purchaser having delivered to the Seller on the Execution Date certified copies of the resolutions duly passed by its board of directors or equivalent authority approving the execution, delivery and performance by the Purchaser of the Transaction Documents.
(ii) The Conclusion of the Open Offer.
(iii) The Purchaser Warranties being true in all material respects as of the Completion Date, except that the Purchaser Warranties in Clauses 1 of Schedule 4 being true in all respects as of the Completion Date.
(iv) The Purchaser not being in material breach of the agreements, covenants, obligations, and conditions required by this Agreement to be so performed or complied with by it, at or before the Completion Date (including, but not limited to, the obligations in respect of the Open Offer as set out in Clause 6.1 hereof).
(v) Simultaneous consummation of the sale of Sale ADSs under the GA Securities Purchase Agreement (including satisfaction of the conditions to completion thereunder), provided that the Seller shall not be entitled to rely on this sub-clause (v) if the Seller is then in breach of the GA Securities Purchase Agreement.
3.2. The obligation of the Purchaser to purchase the Sale Shares and proceed with Completion in terms of Clause 5 of this Agreement shall be conditional on the satisfaction of the following conditions, other than those which by their very nature are to be satisfied at Completion, (to the extent that they have not been waived by the Purchaser (other than the condition set out in Clause 3.2 (iii) below which shall not be waived), in accordance with this Agreement):
(i) The Seller having delivered to the Purchaser on the Execution Date certified copies of the resolutions duly passed by the Seller’s board of directors or equivalent authority (where applicable) approving the execution, delivery and performance by the Seller of the Agreement.
(ii) The Seller Warranties being true in all material respects as of the Completion Date, except that the Seller Warranties in Clause 1.1 and Clause 2 of Part A of Schedule 3 being true in all respects as of the Completion Date.
(iii) Simultaneous consummation of the transactions contemplated under the Founders’ SPA (including satisfaction of the conditions to completion thereunder).
(iv) The Seller not being in material breach of the agreements, covenants, obligations, and conditions required by this Agreement to be so performed or complied with by the Seller, as applicable, at or before the Completion Date.
(v) Simultaneous consummation of the sale of the Sale ADSs under the GA Securities Purchase Agreement (including satisfaction of the conditions to completion thereunder).
3.3. The obligations of the Parties to proceed with Completion in terms of Clause 5 of this Agreement shall be conditional on the following conditions, or their satisfaction subject only to Completion:
(i) there not being in effect any writ, judgment, injunction, decree, or similar order of any court or other authority or law restraining or otherwise preventing consummation of the Transactions, including the actions to be taken at Completion.
(ii) (a) any waiting periods under the HSR Act or other applicable Anti-trust Laws in respect of, and (b) any Approvals by any Governmental Authority required for the consummation of, the Transactions shall have conditions having been obtained, expired or terminated, as applicable.
3.4. The Purchaser shall make all reasonable efforts to achieve satisfaction of each condition set out in Clauses 3.1 and 3.3 as soon as possible after the Execution Date.
3.5. The Seller shall make all reasonable efforts to achieve satisfaction of each condition set out in Clauses 3.2 (other than Clause 3.2(iii)) and 3.3(i) as soon as possible after the Execution Date.
3.6. The Seller and the Purchaser, as the case may be, shall each notify the other promptly upon becoming aware that any of the conditions set out in Clause 3 have been satisfied or have become incapable of satisfaction or waiver, other than with respect to those conditions that have to be satisfied as of the Completion.
3.7. At any time prior to or on the Long Stop Date, to the extent permitted under Applicable Law and save as expressly provided otherwise:
(i) the Purchaser may waive any condition set out in Clause 3.2 (other than Clause 3.2(iii)) by notice in writing to the Seller; and
(ii) the Seller may waive any condition set out in Clause 3.1 by notice in writing to the Purchaser.
3.8. Within 3 (three) Business Days following:
(i) the satisfaction or waiver (if waived by the Purchaser in accordance with this Agreement) of the last of the conditions to be satisfied by the Seller as set out in Clauses 3.2 (other than the condition set out in Clause 3.2(iii)) and 3.3(i) (other than conditions which by their very nature are to be satisfied at Completion), the Seller shall provide to the Purchaser written confirmation (in the form attached as Part A to Schedule 2) of the satisfaction or waiver of such conditions; and
(ii) the satisfaction or waiver (if waived by the Seller in accordance with this Agreement) of the last of the conditions to be satisfied by the Purchaser as set out in Clauses 3.1 and 3.3 (other than conditions which by their very nature are to be satisfied at Completion), the Purchaser shall provide to the Seller a written confirmation (in the form attached as Part B to Schedule 2) of satisfaction or waiver of such conditions, each such written confirmation a “CP Confirmation Certificate”. For the avoidance of any doubt, it is clarified that if a CP Confirmation Certificate is wrongfully withheld, it shall not affect the right of the relevant Party to enforce Completion on the Completion Date fulfilled in accordance with the terms of this Agreement or waived by the Buyer:
6.1.1 confirmation having been received from the competition authorities in the Mandatory Jurisdiction that the sale and purchase of the Shares contemplated by this Agreement has been cleared under all relevant national merger control rules, anti-trust or similar legislation in the Mandatory Jurisdiction; or all relevant time limits or waiting periods under all relevant national merger control rules, anti-trust or similar legislation in the Mandatory Jurisdiction having expired without any decision having been made to investigate the sale and purchase of the Shares contemplated by this Agreement further; and
6.1.2 a letter of commitment in the agreed form having been submitted by the Buyer and Personnel Decisions Research Institutes, Inc. (“PDRI”) to the U.S. Defense Security Service (“DSS”) with respect to a plan to operate the business of PDRI pursuant to an agreement with DSS sufficient to mitigate foreign ownership, control or influence (“FOCI”) in accordance with the U.S. National Industrial Security Program Operating Manual (“NISPOM”) (the “Commitment Letter”); (each a “Condition” and collectively the “Conditions”).
6.2 The Buyer shall (at its own cost) take all steps necessary to ensure the prompt satisfaction of the Conditions, including by offering any obligation, commitment or undertaking necessary to secure a clearance and/or approval decision of the types set out in clauses 6.1.1 and 6.1.2 provided, however, that the Buyer will not be required to sell or otherwise dispose of any assets or business of the Group or the Buyer or take any other action or offer any obligation, commitment or undertaking except where doing so would be expected to have an immaterial effect on the business, undertaking, or commercial interests or operations of the Buyer’s Group taken as a whole.
6.3 The Buyer shall prepare and submit the Competition Condition Filing as soon as reasonably practicable and in any event within ten Business Days of the date of this Agreement.
6.4 Within ten Business Days following the date of this Agreement, the Buyer shall and the Sellers shall cause PDRI to submit the Commitment Letter to the DSS.
6.5 The Sellers and the Buyer shall cooperate with each other in the timely preparation, submission and pursuit of the notification required in connection with the satisfaction of the Conditions until Completion including:
6.5.1 ensuring that all information reasonably necessary for drafting the Commitment Letter, making the Competition Condition Filing or other application or filing (including draft versions) made in respect of the Conditions (or responding to any request for further information consequent upon such notifications) is supplied promptly to the Buyer who shall be primarily responsible for preparing and dealing with the Commitment Letter and the Competition Condition Filing or other application or filing and ensuring that they are made accurately and promptly; and
6.5.2 promptly notifying the other, and providing copies, of any communications from any relevant Governmental Entities relating to the Conditions, provided however that the Buyer shall not be required to provide the Sellers with copies of any element of such communications which contains information of a commercially sensitive nature without first redacting that element, or (at the Sellers’ election) providing it only to the Sellers’ Solicitors on the basis that it will not be shown or otherwise communicated to the Sellers.
6.6 The Buyer shall:
6.6.1 provide the Sellers (or their advisors) with draft copies of all submissions, filings, notifications and other communications (including without limitation the Competition Condition Filing) to any relevant Governmental Entities relating to the Conditions at such time as will allow the Sellers a reasonable opportunity to provide comments and for the Buyer to give reasonable consideration to such comments before they are submitted or sent to the relevant Governmental Entities. The Buyer shall allow the SHL 1 Institutional Sellers’ Representative to view such notifications and other communications before they are submitted or sent to the relevant Governmental Entities, provided however that the Buyer shall not be required to provide the Sellers with copies of any element of such notifications or other communications which contains information of a commercially sensitive nature without first redacting any such element. The Buyer shall provide the Sellers with copies of all such notifications and communications in the form submitted or sent, provided however that the Buyer shall not be required to provide the Sellers with copies of any element of such communications or submissions which contains information of a commercially sensitive nature without first redacting any such element, or (at the Sellers’ election) providing it only to the Sellers’ Solicitors on the basis that it will not be shown or otherwise communicated to the Sellers;
6.6.2 subject to clause 6.6.1, the Buyer shall respond as soon as reasonably practicable to all enquiries received from any Governmental Entity to whom a filing has been made for additional information or documentation and to supplement such filings as reasonably requested by the applicable Governmental Entity;
6.6.3 use all reasonable endeavours to avoid any declaration of incompleteness by the Governmental Entity or any other suspension of the time periods of clearance;
6.6.4 use reasonable endeavours to secure the satisfaction of the Conditions by the end of the relevant Governmental Entity’s initial period of review (i.
Appears in 1 contract
Sources: Sale and Purchase Agreement (Corporate Executive Board Co)
Conditions to Completion. 3.1.
3.1 The obligations of the Purchaser to proceed to Completion, in all respects, is conditional upon the fulfillment to the satisfaction of the Purchaser, or the waiver by the Purchaser (except where prohibited by Applicable Law), of the following conditions precedent (“Seller Conditions Precedent”) and the condition set out in Clause 3.3:
(a) the Seller’s Warranties being true, accurate, complete and not misleading in all respects as at the date hereof and at the Completion Date, and there having been no breach of any obligations of the Seller under this Agreement;
(b) no injunction, restraining order or other order or any other legal or regulatory restraint or prohibition being in effect or having been issued or made by any court of competent jurisdiction or any other Person which prevents or restricts Completion or the consummation of the transactions and arrangements contemplated in this Agreement; and
(c) the Seller having obtained all corporate approvals and Government Approvals (if applicable) and approvals under the Shareholders' Agreement and the Articles of Association required by it in order to perform its obligations under this Agreement, including the sale of the Sale Shares in the manner set out under this Agreement.
(d) the Seller shall procure and deliver to the Purchaser a report from a Big4 Accounting Firm certifying (i) the status of Tax Proceedings pending against such Seller, (ii) that all undisputed claims of Tax under the IT Act have been duly discharged; and (iii) tha t there are no disputed Tax Claims under the IT Act (‘281 Report’);
(e) the Seller shall procure and deliver to the Purchaser a report on Capital Gains Tax in a ccordance with the provisions of the IT Act read with the Income-tax Rules, 1962 (‘th e IT Rules’) from a Big4 Accounting Firm with respect to Consideration; and
(f) the Seller shall procure and deliver to the Purchaser a reliance letter issued by the Big 4 Firm covering the 281 Report and Capital Gain Tax report.
3.2 The obligation of the Seller to sell proceed with Completion with the Purchaser is conditional upon the fulfillment to the reasonable satisfaction of the Seller, or the waiver by the Seller, of the following conditions precedent (“Purchaser Conditions Precedent”):
(a) the Purchaser’s warranties in Clause 5.4 being true, accurate, complete and not misleading in all respects at the Completion Date, and there having been no material breach of any obligations of the Purchaser under this Agreement;
(b) no injunction, restraining order or other order or any other legal or regulatory restraint or prohibition being in effect or having been issued or made by any court of competent jurisdiction or any other Person which prevents or restricts Completion or the consummation of the transactions and arrangements contemplated in the Agreement as between the Seller and the Purchaser;
(c) the Purchaser shall have provided details of its demat account to the Seller for receipt of the Sale Shares; and
(d) the Purchaser having obtained all corporate approvals, Governmental Approvals (if applicable), and approvals under the Shareholders' Agreement and the Articles of Association required by it in order to perform its obligations under this Agreement, including the purchase of the Sale Shares and proceed with payment of Consideration in the Completion in terms of Clause 5 of this Agreement shall be conditional on the satisfaction of following conditions, other than those which by their very nature are to be satisfied at Completion, (to the extent that they have not been waived by the Seller (other than the condition manner set out in Clauses 3.1(ii) below which shall not be waived), in accordance with this Agreement):
(i) The Purchaser having delivered to the Seller on the Execution Date certified copies of the resolutions duly passed by its board of directors or equivalent authority approving the execution, delivery and performance by the Purchaser of the Transaction Documents.
(ii) The Conclusion of the Open Offer.
(iii) The Purchaser Warranties being true in all material respects as of the Completion Date, except that the Purchaser Warranties in Clauses 1 of Schedule 4 being true in all respects as of the Completion Date.
(iv) The Purchaser not being in material breach of the agreements, covenants, obligations, and conditions required by this Agreement to be so performed or complied with by it, at or before the Completion Date (including, but not limited to, the obligations in respect of the Open Offer as set out in Clause 6.1 hereof).
(v) Simultaneous consummation of the sale of Sale ADSs under the GA Securities Purchase Agreement (including satisfaction of the conditions to completion thereunder), provided that the Seller shall not be entitled to rely on this sub-clause (v) if the Seller is then in breach of the GA Securities Purchase Agreement.
3.2. 3.3 The obligation of the Purchaser to purchase the Sale Shares and proceed with Completion in terms of Clause 5 of this Agreement shall be conditional on the satisfaction of the following conditions, other than those which by their very nature are to be satisfied at Completion, (to the extent that they have not been waived by the Purchaser (other than the condition set out in Clause 3.2 (iii) below which shall not be waived), in accordance with this Agreement):
(i) The Seller having delivered to the Purchaser on the Execution Date certified copies of the resolutions duly passed by the Seller’s board of directors or equivalent authority (where applicable) approving the execution, delivery and performance by the Seller of the Agreement.
(ii) The Seller Warranties being true in all material respects as of the Completion Date, except that the Seller Warranties in Clause 1.1 and Clause 2 of Part A of Schedule 3 being true in all respects as of the Completion Date.
(iii) Simultaneous consummation of the transactions contemplated under the Founders’ SPA (including satisfaction of the conditions to completion thereunder).
(iv) The Seller not being in material breach of the agreements, covenants, obligations, and conditions required by this Agreement to be so performed or complied with by the Seller, as applicable, at or before the Completion Date.
(v) Simultaneous consummation of the sale of the Sale ADSs under the GA Securities Purchase Agreement (including satisfaction of the conditions to completion thereunder).
3.3. The obligations of the Parties to proceed with Completion in terms of Clause 5 of this Agreement shall be conditional on the following conditions, or their satisfaction subject only to Completion:
(i) there not being in effect any writ, judgment, injunction, decree, or similar order of any court or other authority or law restraining or otherwise preventing consummation of the Transactions, including the actions to be taken at Completion.
(ii) (a) any waiting periods under the HSR Act or other applicable Anti-trust Laws in respect of, and (b) any Approvals by any Governmental Authority required for the consummation of, the Transactions shall have been obtained, expired or terminated, as applicable.
3.4. The Purchaser shall make all reasonable efforts to achieve satisfaction of each condition set out in Clauses 3.1 and 3.3 as soon as possible after the Execution Date.
3.5. The Seller shall make all reasonable efforts to achieve satisfaction of each condition set out in Clauses 3.2 (other than Clause 3.2(iii)) and 3.3(i) as soon as possible after the Execution Date.
3.6. The Seller and the Purchaser, as the case may be, shall each notify the other promptly upon becoming aware that any of the conditions set out in Clause 3 have been satisfied or have become incapable of satisfaction or waiver, other than with respect to those conditions that have to be satisfied as of the Completion.
3.7. At any time prior to or on the Long Stop Date, to the extent permitted under Applicable Law and save as expressly provided otherwise:
(i) the Purchaser may waive any condition set out in Clause 3.2 (other than Clause 3.2(iii)) by notice in writing to the Seller; and
(ii) the Seller may waive any condition set out in Clause 3.1 by notice in writing to the Purchaser.
3.8. Within 3 (three) Business Days following:
(i) the satisfaction or waiver (if waived by the Purchaser in accordance with this Agreement) of the last of the conditions to be satisfied by the Seller as set out in Clauses 3.2 (other than the condition set out in Clause 3.2(iii)) and 3.3(i) (other than conditions which by their very nature are to be satisfied at Completion), the Seller Company shall provide to the Purchaser written confirmation (a fair valuation report, in a form and substance satisfactory to the form attached as Part A Purchaser, from a reputed valuer acceptable to Schedule 2both the Purchaser and the Seller, showing the value of the Sale Shares in accordance with Section 56(2)(x) of the satisfaction IT Act read with the prescribed rules (i.e. Rule 11UA of the IT Rules).
3.4 The Company undertakes to provide all reasonable assistance as may be required by the Sellers and the Purchaser for completing the Seller Conditions Precedent in Clause 3.1(c) and the Purchaser Conditions Precedent in Clause 3.2(c), respectively.
3.5 Each of the Parties undertake to promptly notify the other Parties in writing of anything which will or waiver is reasonably likely to prevent their respective Conditions Precedent from being satisfied as soon as reasonably practicable after it comes to their attention.
3.6 If any of such conditions; and
(ii) the Seller Conditions Precedent are not completed to the satisfaction of the Purchaser or waiver (if is not waived in writing by the Seller in accordance with this Agreement) of the last of the conditions to be satisfied by the Purchaser as set out in Clauses 3.1 and 3.3 (other than conditions which by their very nature are to be satisfied at Completion)Purchaser, the Purchaser shall provide to the Seller a written confirmation (in its sole and absolute discretion and acting reasonably) be entitled to terminate this Agreement in the form attached manner as Part B to Schedule 2) of satisfaction or waiver of such conditions, each such written confirmation a “CP Confirmation Certificate”. For the avoidance of any doubt, it is clarified that if a CP Confirmation Certificate is wrongfully withheld, it shall not affect the right of the relevant Party to enforce Completion on the Completion Date in accordance with the terms of provided under this Agreement.
Appears in 1 contract
Sources: Share Purchase Agreement