CONDUCT OF BUSINESS BEFORE COMPLETION. 4.1 Subject to applicable law and to clause 4.2, the Seller shall procure that the Target Group carries on its business in the ordinary course in a manner substantially consistent with the past practice during the twelve (12) months preceding the date of this Agreement with the consequence that the Seller shall not, and shall procure that the Target Group shall not, between the date of this Agreement and Completion undertake any of the acts or matters deviating from the ordinary course of business, including but not limited to the acts and matters listed in Schedule 8, in each case, without the prior written consent of the Purchaser (such consent not to be unreasonably withheld, conditioned or delayed). 4.2 Neither clause 4.1 nor Schedule 8 shall operate so as to restrict or prevent: (A) any act, omission or matter reasonably undertaken by any member of the Seller’s Group in the case of an emergency or disaster or other serious incident or circumstance that might result in a serious adverse effect on the Target Group with the intention of minimising any adverse effect on the Target Group, in which case, the Seller shall notify in advance the Purchaser of any such activities undertaken or, if it is not possible, as soon as reasonably practicable thereafter; (B) completion or performance of any obligation undertaken pursuant to or in connection with any contract or arrangement entered into by any member of the Target Group before the date of this Agreement; (C) payment in respect of any liability incurred by the Target Group (or in respect of which the action that resulted in such liability had been taken) prior to the date of this Agreement; (D) any ordinary course cash management activities by the Target Group or the Seller as at the date of this Agreement, including: (i) capitalising, settling or incurring any Intra- Group Debt; (ii) implementing, operating or unwinding any cash pooling arrangements; (iii) upstreaming and downstreaming of funds by way of inter-company loans, dividends, distributions and equity contributions between members of the Target Group and/or members of the Retained Group; and (iv) factoring of any invoices or receivables by the Target Group; (E) [***] (F) [***] (G) any matter required or expressly contemplated by or resulting from the provisions of this Agreement or any of the other Share Purchase Documents or necessary to give effect to their provisions; (H) any act, omission or matter being undertaken at the written request, or with the written consent, of the Purchaser or Swisscom; (I) any act or matter undertaken to give effect to or implement the arrangements set out in Schedule 10; (J) other than any amendments to the Vodafone Share Incentive Plans applicable to employees of the Target Group, any actions in relation to employee share schemes to the extent put in place prior to the execution date of this Agreement, and to the extent envisaged by, or necessary to implement, the arrangements set out in clause 19; (K) any act undertaken to negotiate or – with the exclusion of the [***] - settle any matter which is the subject of the Special Indemnities, provided that (i) if there is a such a settlement, the sole obligation on the Target Group deriving from such settlement is the payment of a cash amount - with no residual liability for the Target Group or assumption of any other obligation - and the relevant agreed payment will be captured in the Completion Accounts (to the extent not already settled by the Completion Close Time); and (ii) the Seller shall notify in advance the Purchaser of any such activities; (L) [***] (M) the execution of the Brand Licence Agreement and the Target making the payments contemplated therein prior to Completion (including any steps necessary in connection with such payments); or (N) any matter required to be undertaken in order to comply with any applicable law or any request by a Governmental Entity; (O) any act or matter undertaken in connection with energy and insurance services or the co-selling of financial services, provided that such services are run within their ordinary course following launch; or (P) [***] 4.3 Notwithstanding the provisions of clause 34, any request for consent under clause 4.1 and notice under clause 4.2 shall be made only by e-mail to all the following e-mail addresses: [***]it being understood that any request for consent under clause 4.1 or notice under clause 4.2 sent to less than all the e-mail addresses provided under this clause 4.3 shall be considered as not validly sent. 4.4 The consent of the Purchaser for the purposes of clause 4.1 may only be given from any of the e-mail addresses identified in clause 4.3, it being understood that the consent of the Purchaser for the purposes of clause 4.1 may be given by any one of the e-mail addresses identified in clause 4.3 and shall not require consent from all of them. 4.5 Consent under clause 4.1 shall be deemed to have been given to the Seller if such consent has neither been granted nor denied by the Purchaser within four (4) Business Days of the Seller making a request for consent in accordance with clause 4.3 and clause 4.4. 4.6 Without prejudice to clause 36, the Parties agree that any information to be communicated to the Purchaser as a basis for the exercise of any consent right pursuant to clause 4.3 shall be held in confidence by the Purchaser. 4.7 Subject to applicable law and without prejudice to clause 4.1 and 4.2, between the date of this Agreement and Completion, the Seller shall, and shall procure that the Target Group shall, as applicable, carry out the activities mentioned in this clause 4.7. (A) The Seller shall, or shall procure that the Target Group shall: (i) deliver to the Purchaser: (a) [***] (b) [***] (c) [***] (ii) [***] (B) [***] 4.8 [***]
Appears in 1 contract
Sources: Sale and Purchase Agreement (Vodafone Group Public LTD Co)
CONDUCT OF BUSINESS BEFORE COMPLETION. Normal course
4.1 Subject to applicable law 6.1 From the date of this Agreement until Completion or termination of this Agreement each of the Management Sellers and to clause 4.2each of the Investor Sellers (other than PE1A LP) shall, the Seller shall procure that so far as it is reasonably able by exercising its rights as a Shareholder, director and/or employee of the Target Group carries (as applicable), procure that each Target Group Company continues to carry on its business in the ordinary normal course and in a substantially the same manner substantially consistent with the past practice during the twelve (12) months preceding the date of this Agreement with the consequence that the Seller shall not, and shall procure that the Target Group shall not, between the date of this Agreement and Completion undertake any of the acts or matters deviating from the ordinary course of business, including but not limited to the acts and matters listed in Schedule 8, in each case, without the prior written consent of the Purchaser (such consent not to be unreasonably withheld, conditioned or delayed).
4.2 Neither clause 4.1 nor Schedule 8 shall operate so as to restrict or prevent:
(A) any act, omission or matter reasonably undertaken by any member of the Seller’s Group its business has been carried on in the case of an emergency or disaster or other serious incident or circumstance that might result in a serious adverse effect on the Target Group with the intention of minimising any adverse effect on the Target Group, in which case, the Seller shall notify in advance the Purchaser of any such activities undertaken or, if it is not possible, as soon as reasonably practicable thereafter;
(B) completion or performance of any obligation undertaken pursuant to or in connection with any contract or arrangement entered into by any member of the Target Group 12 month period before the date of this Agreement; .
6.2 Subject to clause 6.3, each of the Management Sellers and each of the Investor Sellers (Cother than PE1A LP) payment in respect shall, so far as it is able by exercising its rights as a Shareholder, director and/or employee of any liability incurred by the Target Group (or in respect of which as applicable), procure that: 11/37450980_10 21
6.2.1 upon the action that resulted in such liability had been taken) prior Buyer giving reasonable notice to the date Seller's Representatives the Buyer and such of this Agreement; its officers and employees as are necessary to perform the relevant activities are given access to:
(D) any ordinary course cash management activities 6.2.1.1 such offsite meetings during normal business hours with the Specified Managers as are reasonably required by the Target Group or the Seller as at the date of this Agreement, including: (i) capitalising, settling or incurring any Intra- Group Debt; (ii) implementing, operating or unwinding any cash pooling arrangements; (iii) upstreaming and downstreaming of funds by way of inter-company loans, dividends, distributions and equity contributions between members of the Target Group and/or members of the Retained Group; and (iv) factoring of any invoices or receivables by the Target Group;
(E) [***]
(F) [***]
(G) any matter required or expressly contemplated by or resulting from the provisions of this Agreement or any of the other Share Purchase Documents or necessary to give effect to their provisions;
(H) any act, omission or matter being undertaken at the written request, or with the written consent, of the Purchaser or Swisscom;
(I) any act or matter undertaken to give effect to or implement the arrangements set out in Schedule 10;
(J) other than any amendments to the Vodafone Share Incentive Plans applicable to employees of the Target Group, any actions in relation to employee share schemes to the extent put in place prior to the execution date of this Agreement, and to the extent envisaged by, or necessary to implement, the arrangements set out in clause 19;
(K) any act undertaken to negotiate or – with the exclusion of the [***] - settle any matter which is the subject of the Special Indemnities, provided that (i) if there is a such a settlement, the sole obligation on the Target Group deriving from such settlement is the payment of a cash amount - with no residual liability for the Target Group or assumption of any other obligation - and the relevant agreed payment will be captured in the Completion Accounts (to the extent not already settled by the Completion Close Time); and (ii) the Seller shall notify in advance the Purchaser of any such activities;
(L) [***]
(M) the execution of the Brand Licence Agreement and the Target making the payments contemplated therein prior to Completion (including any steps necessary in connection with such payments); or
(N) any matter required to be undertaken in order to comply with any applicable law or any request by a Governmental Entity;
(O) any act or matter undertaken in connection with energy and insurance services or the co-selling of financial services, provided that such services are run within their ordinary course following launch; or
(P) [***]
4.3 Notwithstanding the provisions of clause 34, any request for consent under clause 4.1 and notice under clause 4.2 shall be made only by e-mail to all the following e-mail addresses: [***]it being understood that any request for consent under clause 4.1 or notice under clause 4.2 sent to less than all the e-mail addresses provided under this clause 4.3 shall be considered as not validly sent.
4.4 The consent of the Purchaser Buyer for the purposes of clause 4.1 may only be given from any of the e-mail addresses identified in clause 4.3, it being understood that the consent of the Purchaser for the purposes of clause 4.1 may be given by any one of the e-mail addresses identified in clause 4.3 and shall not require consent from all of them.
4.5 Consent under clause 4.1 shall be deemed to have been given to the Seller if such consent has neither been granted nor denied by the Purchaser within four (4) Business Days of the Seller making a request for consent in accordance with clause 4.3 and clause 4.4.
4.6 Without prejudice to clause 36, the Parties agree that any information to be communicated to the Purchaser as a basis for the exercise of any consent right pursuant to clause 4.3 shall be held in confidence by the Purchaser.
4.7 Subject to applicable law and without prejudice to clause 4.1 and 4.2, between the date of this Agreement and Completion, the Seller shall, and shall procure that the Target Group shall, as applicable, carry out the activities mentioned in this clause 4.7.
(A) The Seller shall, or shall procure that the Target Group shallof:
(i) deliver integration planning and facilitating transition in the ownership of the Target Group from the Sellers to the Purchaser:
Buyer (a) [***]
(b) [***]
(c) [***] including, without limitation, planning with respect to US GAAP consolidation accounting and related reporting);
(ii) [***] preparing a business plan for the Target Group to be implemented following Completion;
(Biii) [***] assisting the Buyer in preparing the Target Group to procure, to the extent practicable, full compliance by the Target Group with any compliance and/or reporting requirements which the Buyer is required to comply with under Applicable Law (including all anti-bribery, anti-money laundering, compliance, counterparty acceptance and integrity or similar legislation applicable in any jurisdiction binding upon or applicable the Target Group) (this clause 6.2.1.1 (iii) being the "Compliance Integration");
4.8 [***] 6.2.1.2 such documents and information of the Target Group as are reasonably required by the Buyer for the purposes of the Compliance Integration; and
6.2.1.3 monthly management accounts of the Target Group (in the form in which they are provided to the shareholders of the Company) as soon as reasonably practicable after the relevant set of monthly management accounts have been reviewed and approved by the board of directors of the Company, and
6.2.2 the Sellers' Representatives notify to the Buyer (in writing and promptly upon it becoming aware of the same) of any fact, matter or circumstance which constitutes or could reasonably be expected to constitute:
6.2.2.1 a breach of the undertakings contained in clause 6.1, clause 6.4 or Schedule 4 (Gap controls);
6.2.2.2 a breach of the covenant contained in Clause 8.1 (Leakage); and
6.2.2.3 a material breach any of the Warranties given in clause 9 and set out in Schedule 5, and 11/37450980_10 22 and upon becoming aware of any such fact, matter or circumstance (whether pursuant to any notification received from the Sellers' Representative or otherwise), the Buyer and such of its officers and employees as are necessary to perform the relevant activities, shall be permitted to make reasonable enquiries of the Sellers' Representative to establish the nature of any such breach, and the Sellers' shall procure that such enquiries shall be answered as promptly as practicable and with all information reasonably available to the Sellers.
6.3 The Buyer acknowledges and agrees that the Sellers shall not be required to procure access in accordance with clause 6.2 where:
6.3.1 such access would be restricted by Applicable Law or binding confidentiality requirements;
6.3.2 such access would, in the reasonable opinion of the Investor Sellers, materially disrupt the day to day business of the Target Group; or
6.3.3 the Investor Sellers reasonably believe that any request for access is made by or on behalf of the Buyer wholly or partly for a purpose other than those set out at clauses 6.2
6.4 Without prejudice to the generality of clause 6.1, with effect from the date hereof until Completion or termination of this Agreement, Schedule 4 shall apply.
Appears in 1 contract
Sources: Share Sale Agreement (Agco Corp /De)
CONDUCT OF BUSINESS BEFORE COMPLETION.
4.1 Subject to applicable law and to clause 4.2Pending Completion, the Seller shall Vendors shall:
4.1.1 cause the Company and the Subsidiaries to continue to carry on their businesses in the normal course and in substantially the same manner as such businesses have been carried on before the date of this Agreement;
4.1.2 procure that the Target Group carries Company and each of the Subsidiaries shall take all reasonable steps to preserve and protect their businesses and assets and notify the Purchaser in writing promptly of any adverse change in such businesses or assets;
4.1.3 procure that the Purchaser and its advisers are given promptly on its business request access to such facilities and information regarding the businesses, assets, liabilities, contracts and affairs of the Company and any of the Subsidiaries as the Purchaser may reasonably require;
4.1.4 procure that unless the Purchaser shall have consented thereto (which the Purchaser shall be deemed to have duly done if Mr Rigel Mowatt, on behalf of the Purchaser, has ▇▇▇▇▇ ▇▇▇/▇▇▇ ▇onsent either by fax, email or other written notice) neither the Company nor any of the Subsidiaries shall, save in relation to the Permitted Transactions:
(A) create, extend, grant or issue, or agree to create, grant or issue any mortgage, charge, debenture or other security (other than liens arising in the ordinary course of business); or
(B) create or issue or agree to create or issue any share or loan capital, or give or agree to give any option in a manner substantially consistent with respect of any share or loan capital; or
(C) pass or agree to pass any resolution by its members in general meeting or make or agree to make any alteration to its Memorandum or Articles of Association; or
(D) pay or agree to pay its creditors otherwise than in the past practice during ordinary course or change or agree to change its policy in relation to the twelve payment of creditors; or
(12E) months preceding enter into or agree to enter into any contract or commitment which is outside the date ordinary course of this Agreement with the consequence that the Seller shall not, and shall procure that the Target Group shall not, between the date of this Agreement and Completion undertake such company's business; or
(F) sell or transfer or agree to sell or transfer any of the acts its assets or matters deviating from acquire or agree to acquire any shares or assets, in each case except in the ordinary course of business, including but not limited or cancel, release or assign or agree to the acts and matters listed in Schedule 8cancel, in each case, without the prior written consent of the Purchaser (release or assign any indebtedness owed to it or any claims held by such consent not to be unreasonably withheld, conditioned or delayed).
4.2 Neither clause 4.1 nor Schedule 8 shall operate so as to restrict or prevent:
(A) any act, omission or matter reasonably undertaken by any member of the Seller’s Group company except in the case of an emergency or disaster or other serious incident or circumstance that might result in a serious adverse effect on the Target Group with the intention of minimising any adverse effect on the Target Group, in which case, the Seller shall notify in advance the Purchaser of any such activities undertaken or, if it is not possible, as soon as reasonably practicable thereafter;
(B) completion or performance of any obligation undertaken pursuant to or in connection with any contract or arrangement entered into by any member of the Target Group before the date of this Agreement;
(C) payment in respect of any liability incurred by the Target Group (or in respect of which the action that resulted in such liability had been taken) prior to the date of this Agreement;
(D) any ordinary course cash management activities by the Target Group or the Seller as at the date of this Agreement, including: (i) capitalising, settling or incurring any Intra- Group Debtbusiness; (ii) implementing, operating or unwinding any cash pooling arrangements; (iii) upstreaming and downstreaming of funds by way of inter-company loans, dividends, distributions and equity contributions between members of the Target Group and/or members of the Retained Group; and (iv) factoring of any invoices or receivables by the Target Group;
(E) [***]
(F) [***] or
(G) make or agree to make any matter required material change to the terms of employment of its employees or expressly contemplated by the benefits given to any such employees or resulting from the provisions of this Agreement in any working practices or any of the other Share Purchase Documents or necessary collective agreements relating to give effect to their provisions; such practices;
(H) declare or pay or agree to declare or pay any act, omission dividend or matter being undertaken at the written request, or with the written consent, of the Purchaser or Swisscom; other distribution;
(I) any act give or matter undertaken agree to give effect to any guarantee or implement indemnity outside the arrangements set out in Schedule 10; ordinary course of business;
(J) other than lend or advance or agree to lend or advance any amendments money or make or grant or agree to make or grant any loans or accept any financial facility or agree to accept any financial facility, in each case outside the Vodafone Share Incentive Plans applicable to employees ordinary course of the Target Group, any actions in relation to employee share schemes to the extent put in place prior to the execution date of this Agreementbusiness, and to the extent envisaged by, in each case excluding any money lent or necessary to implement, the arrangements set out in clause 19advanced or any loan made or granted as Inter-Group Indebtedness or Borrowed Money Indebtedness;
(K) any act undertaken dispose of or agree to negotiate or – with the exclusion of the [***] - settle any matter which is the subject of the Special Indemnities, provided that (i) if there is a such a settlement, the sole obligation on the Target Group deriving from such settlement is the payment of a cash amount - with no residual liability for the Target Group or assumption dispose of any other obligation - and fixed assets where the relevant agreed payment will be captured in aggregate value of such disposals during the Completion Accounts (to the extent not already settled by the Completion Close Time); and (ii) the Seller shall notify in advance the Purchaser of any such activities;
(L) [***]
(M) the execution of the Brand Licence Agreement and the Target making the payments contemplated therein prior to Completion (including any steps necessary in connection with such payments); or
(N) any matter required to be undertaken in order to comply with any applicable law or any request by a Governmental Entity;
(O) any act or matter undertaken in connection with energy and insurance services or the co-selling of financial services, provided that such services are run within their ordinary course following launch; or
(P) [***]
4.3 Notwithstanding the provisions of clause 34, any request for consent under clause 4.1 and notice under clause 4.2 shall be made only by e-mail to all the following e-mail addresses: [***]it being understood that any request for consent under clause 4.1 or notice under clause 4.2 sent to less than all the e-mail addresses provided under this clause 4.3 shall be considered as not validly sent.
4.4 The consent of the Purchaser for the purposes of clause 4.1 may only be given period from any of the e-mail addresses identified in clause 4.3, it being understood that the consent of the Purchaser for the purposes of clause 4.1 may be given by any one of the e-mail addresses identified in clause 4.3 and shall not require consent from all of them.
4.5 Consent under clause 4.1 shall be deemed to have been given to the Seller if such consent has neither been granted nor denied by the Purchaser within four (4) Business Days of the Seller making a request for consent in accordance with clause 4.3 and clause 4.4.
4.6 Without prejudice to clause 36, the Parties agree that any information to be communicated to the Purchaser as a basis for the exercise of any consent right pursuant to clause 4.3 shall be held in confidence by the Purchaser.
4.7 Subject to applicable law and without prejudice to clause 4.1 and 4.2, between the date of this Agreement up to and Completion, the Seller shall, and shall procure that the Target Group shall, as applicable, carry out the activities mentioned in this clause 4.7.
including Completion exceeds (A) The Seller shall, or shall procure that the Target Group shall:
(i) deliver to the Purchaser:
(a) [***]
(b) [***]
(c) [***]
(ii) [***]
(B) [***]
4.8 [***] pound)100,000.
Appears in 1 contract
Sources: Share Purchase Agreement (Hollinger International Inc)
CONDUCT OF BUSINESS BEFORE COMPLETION.
4.1 10.1 Subject to applicable law and to sub-clause 4.210.3, the Seller shall GEC will procure that the Target Group carries on its business in the ordinary course in a manner substantially consistent with the past practice during the twelve (12) months preceding the date of this Agreement with the consequence that the Seller shall not, and shall procure that the Target Group shall notthat, between the date of this Agreement and Completion undertake any of the acts or matters deviating from the ordinary course of business, including but not limited to the acts and matters listed in Schedule 8, in each case, without the prior written consent of the Purchaser (such consent not to be unreasonably withheld, conditioned or delayed).
4.2 Neither clause 4.1 nor Schedule 8 shall operate so as to restrict or prevent:
(A) any act, omission or matter reasonably undertaken by any member of the Seller’s Group in the case of an emergency or disaster or other serious incident or circumstance that might result in a serious adverse effect on the Target Group with the intention of minimising any adverse effect on the Target Group, in which case, the Seller shall notify in advance the Purchaser of any such activities undertaken or, if it is not possible, as soon as reasonably practicable thereafter;
(B) completion or performance of any obligation undertaken pursuant to or in connection with any contract or arrangement entered into by any member of the Target Group before the date of this Agreement;
(C) payment in respect of any liability incurred by the Target Group (or in respect of which the action that resulted in such liability had been taken) prior to the date of this Agreement;
(D) any ordinary course cash management activities by the Target Group or the Seller as at the date of this Agreement, including: (i) capitalising, settling or incurring any Intra- Group Debt; (ii) implementing, operating or unwinding any cash pooling arrangements; (iii) upstreaming and downstreaming of funds by way of inter-company loans, dividends, distributions and equity contributions between members of the Target Group and/or members of the Retained Group; and (iv) factoring of any invoices or receivables by the Target Group;
(E) [***]
(F) [***]
(G) any matter required or expressly contemplated by or resulting from the provisions of this Agreement or any of the other Share Purchase Documents or necessary to give effect to their provisions;
(H) any act, omission or matter being undertaken at the written request, or with the written consent, of the Purchaser or Swisscom;
(I) any act or matter undertaken to give effect to or implement the arrangements set out in Schedule 10;
(J) other than any amendments to the Vodafone Share Incentive Plans applicable to employees of the Target Group, any actions in relation to employee share schemes to the extent put in place prior to the execution date of this Agreement, and to the extent envisaged by, or necessary to implement, the arrangements set out in clause 19;
(K) any act undertaken to negotiate or – with the exclusion of the [***] - settle any matter which is the subject of the Special Indemnities, provided that (i) if there is a such a settlement, the sole obligation on the Target Group deriving from such settlement is the payment of a cash amount - with no residual liability for the Target Group or assumption of any other obligation - and the relevant agreed payment will be captured in the Completion Accounts (to the extent not already settled by the Completion Close Time); and (ii) the Seller shall notify in advance the Purchaser of any such activities;
(L) [***]
(M) the execution of the Brand Licence Agreement and the Target making the payments contemplated therein prior to Completion (including any steps necessary in connection with such payments); or
(N) any matter required to be undertaken in order to comply with any applicable law or any request by a Governmental Entity;
(O) any act or matter undertaken in connection with energy and insurance services or the co-selling of financial services, provided that such services are run within their ordinary course following launch; or
(P) [***]
4.3 Notwithstanding the provisions of clause 34, any request for consent under clause 4.1 and notice under clause 4.2 shall be made only by e-mail to all the following e-mail addresses: [***]it being understood that any request for consent under clause 4.1 or notice under clause 4.2 sent to less than all the e-mail addresses provided under this clause 4.3 shall be considered as not validly sent.
4.4 The consent of the Purchaser for the purposes of clause 4.1 may only be given from any of the e-mail addresses identified in clause 4.3, it being understood that the consent of the Purchaser for the purposes of clause 4.1 may be given by any one of the e-mail addresses identified in clause 4.3 and shall not require consent from all of them.
4.5 Consent under clause 4.1 shall be deemed to have been given to the Seller if such consent has neither been granted nor denied by the Purchaser within four (4) Business Days of the Seller making a request for consent in accordance with clause 4.3 and clause 4.4.
4.6 Without prejudice to clause 36, the Parties agree that any information to be communicated to the Purchaser as a basis for the exercise of any consent right pursuant to clause 4.3 shall be held in confidence by the Purchaser.
4.7 Subject to applicable law and without prejudice to clause 4.1 and 4.2, between the date time of this Agreement and Completion, each member of the Seller shall▇▇▇▇▇ ▇▇▇▇▇▇ Group will carry on business in the normal course and in particular shall not do any of those matters set out in Schedule 9 without the prior consent of the Purchaser (not to be unreasonably withheld or delayed).
10.2 GEC agrees that it will not deliberately undertake any act, and shall will procure that each member of the Target GEC Group shalland of the ▇▇▇▇▇ ▇▇▇▇▇▇ Group does not deliberately undertake any act, as applicablewhich would be reasonably likely to result in any of the Warranties being breached between the time of this Agreement and Completion.
10.3 Notwithstanding anything to the contrary in sub-clause 10.1 above or Schedule 9, carry out the activities mentioned in this clause 4.7. GEC shall be entitled to procure:
(A) The Seller shall, or that members of the ▇▇▇▇▇ ▇▇▇▇▇▇ Group repay any amounts in the nature of indebtedness (excluding any amounts owing to trade creditors which shall procure that be dealt with in the Target Group shall:
(iordinary course) deliver to between the Purchaser:
(a) [***]
(b) [***]
(c) [***]
(ii) [***] time of this Agreement and Completion;
(B) [***] that members of the ▇▇▇▇▇ ▇▇▇▇▇▇ Group deal with their interests, or perform obligations in respect of their interests, in immovable properties or other assets (including, without limitation, the shares of Berkel nv/sa, ▇▇▇ ▇▇▇▇▇▇ Nederland BV and Berkel Produktie Rotterdam BV) consistently with the disclosures made in relation to any of the foregoing in the Disclosure Letter; and
4.8 [***] (C) that members of the ▇▇▇▇▇ ▇▇▇▇▇▇ Group undertake those matters described in the document attached to the Disclosure Letter as item EX/CEN2/9, EX/MB/▇▇▇/00/7, EX/CEN2/16 and EX/GA/UK/33/103 provided that members of the ▇▇▇▇▇ ▇▇▇▇▇▇ Group may only enter into the IT Services Agreement and the Benelux Agreements once such documents are in the Agreed Form and the Purchaser covenants not unreasonably to withhold or delay its consent to the execution and substance of such documents after the date hereof and acknowledges that such documents are substantially in the Agreed Form at the date hereof.
10.4 GEC undertakes that neither it nor any member of the GEC Group will instruct any member of the ▇▇▇▇▇ ▇▇▇▇▇▇ Group to undertake any act or omission with the intent to affect artificially the amount of trade creditors, trade debtors or stock of the ▇▇▇▇▇ ▇▇▇▇▇▇ Group which would otherwise be reflected in the Aggregated Completion Balance Sheet with a view to provoking an Adjustment.
Appears in 1 contract
Sources: Share Sale and Purchase Agreement (Avery Berkel Holdings LTD)
CONDUCT OF BUSINESS BEFORE COMPLETION.
4.1 (a) Subject to applicable law and to sub-clause 4.2, the Seller shall procure that the Target Group carries on its business in the ordinary course in a manner substantially consistent with the past practice during the twelve (12) months preceding the date of this Agreement with the consequence that the Seller shall not, and shall procure that the Target Group shall notb), between the date of this Agreement and Completion the Vendor shall procure that the Company shall not undertake any act or course of conduct (including in relation to operating the acts or matters deviating from Acquired Business) which is outside the ordinary course of business. Subject to sub-clause (b), including in particular (but not limited without prejudice to the generality of the foregoing) the Vendor shall procure that the acts and or matters listed specified in Schedule 8, sub-clause (c) do not occur in each case, relation to the Company without the prior written consent of the Purchaser (such consent not to be unreasonably withheld, conditioned withheld or delayed).
4.2 Neither (b) Sub-clause 4.1 nor Schedule 8 8(a) shall not operate so as to restrict or prevent: :
(Ai) any act, omission or matter reasonably undertaken by in response to events beyond the control of any member of the SellerVendor’s Group or the Company, or within the control of the Vendor’s Group or the Company but which requires urgent or immediate response, in the each case of an emergency or disaster or other serious incident or circumstance that might result in a serious adverse effect on the Target Group with the intention of minimising any adverse effect on the Target Group, in which case, the Seller shall notify in advance the Purchaser of any such activities undertaken or, if it is not possible, as soon as reasonably practicable thereafter; events;
(Bii) the completion or performance of any obligation obligations undertaken pursuant to or in connection with any contract or arrangement entered into by any member of the Target Group before prior to the date of this Agreement;
Agreement (C) payment unless such contract or arrangement was entered into in respect contemplation of this Agreement and in order to avoid restrictions that would otherwise apply under this Clause), including, without limitation, the performance of any liability incurred by obligations in relation to joint purchasing arrangements as they have been carried on in the Target Group (or in respect of which the action that resulted in such liability had been taken) twelve months prior to the date of this Agreement; ;
(Diii) any ordinary course cash management activities by matter undertaken at the Target written request of the Purchaser;
(iv) any action or omission which any member of the Vendor’s Group or the Seller Company is required to take or omit to take by any applicable law or regulation;
(v) any disposal of stocks, obsolete assets or redundant assets, or any disposal of cash, in each case as part of the ordinary running of the Acquired Business;
(vi) any matters that are contemplated by Schedule 11 (“Pre-Sale Reorganisation”);
(vii) the issue of shares by the Company to the Vendor in connection with the capitalisation of intra-group debt owed by the Company to any member of the Vendor’s Group; or
(viii) any actions, including the making of appropriate accounting entries, by the Company that are reasonably necessary for it to withdraw from the accounts receivable securitisation program that is operated by ▇ ▇ ▇▇▇▇▇▇ on behalf of the Vendor’s Group prior to Completion.
(c) The acts and matters referred to in sub-clause (a) are as follows:
(i) any advancement of turnaround or any voluntary unscheduled shutdown of any primary operating units (but not voluntary shutdowns of other units), in each case which is outside the ordinary course of business;
(ii) any acquisition or disposal of, or of any rights in, any material asset including but not limited to by sale, lease, surrender, abandonment, exchange, gift or licence;
(iii) any declaration, authorisation, making or payment of a dividend whether in cash or in specie or dividend in kind or any reduction of capital;
(iv) any creation, allotment or issue or any grant of any option over or other right to subscribe or purchase, or any redemption or purchase of, any share or loan capital or securities of the Company or securities convertible into any of the foregoing;
(v) the entry by the Company into any material transaction or any agreement with any member of the Vendor’s Group excluding transactions entered into on the same or substantially equivalent terms as existing arrangements;
(vi) any creation or grant of any option, right to acquire, mortgage, charge, pledge, lien on, over or affecting the Shares and/or (other than a Permitted Encumbrance) the whole or any substantial part of the assets of the Company;
(vii) the making of any loan by the Company (other than the granting of trade credit in the ordinary course of the Acquired Business or other loans in the ordinary course of the Acquired Business) to any person (other than arm’s length loans to a member of the Vendor’s Group, any of the Company’s employees or any other employees of any member of the Vendor’s Group from time to time) and the entry into any other agreement which would require any amount to be recognised as a constituent of the Final Third Party Debt Amount at Completion;
(viii) any material amendment to the memorandum or articles of association of the Company;
(ix) any material change to the accounting practices or policies of the Company except where required by applicable accounting practices or principles coming into force, or in respect of financial periods ending, after the date of Completion;
(x) the acquisition of any body corporate or business or the entering into of any partnership or joint venture arrangement;
(xi) the entry into any material lease of Immovable Property except (a) in the ordinary course of the Acquired Business or (b) for renewals of existing leases on substantially similar terms;
(xii) the entry into any contract or commitment otherwise than in the ordinary course of business which is material, or which is of an unusual or abnormal nature, or which is material to the operation of the Acquired Business and is not expected to be fully performed within 24 months of such contract or commitment being entered into;
(xiii) the issue, sale, purchase, redemption or repurchase by the Company of any equity securities of the Company, excluding the issue of shares by the Company to the Vendor in relation to the capitalisation of intra-group debt owed by the Company to members of the Vendor’s Group;
(xiv) the granting of any guarantees or indemnities by the Company, otherwise than in the ordinary course of the Acquired Business;
(xv) the settlement or compromise of any litigation or arbitration with a value of over £100,000;
(xvi) the entering into of any litigation, arbitration, mediation or similar formal dispute procedure (except debt recovery in the ordinary course, and save in circumstances where it is reasonable to do so in order to prevent a claim or potential claim becoming time-barred or in circumstances where it is reasonable to seek injunctive relief on an urgent basis);
(xvii) except in accordance with Clause 14 and Schedule 8, the termination of the employment (except for cause) or the material variation to the terms of employment (other than variations that are consistent with group-wide variations applying across the Vendor’s Group) of any employee whose base annual salary exceeds £50,000;
(xviii) except in accordance with Clause 14 and Schedule 8 or to fill a vacancy either existing at the time of this Agreement or created by the departure of an employee of the Company after the date of this Agreement, including: the employment of (ia) capitalisingany new employee with a base annual salary over £40,000, settling or incurring (b) any Intra- Group Debt; (ii) implementingindividual who, operating or unwinding any cash pooling arrangements; (iii) upstreaming and downstreaming of funds immediately prior to being employed by way of inter-company loansthe Company, dividends, distributions and equity contributions between members was employed by another member of the Target Group and/or members Vendor’s Group, or (c) any new employee who is to be solely or principally involved on the LDPE Project where such employment is not contemplated by the plan to be agreed by the Vendor and Purchaser relating to the LDPE Project;
(xix) the acts and matters referred to in paragraph 2(B) of Schedule 5 (“Pensions”);
(xx) cancellation of or any change to the terms of, or the doing (or failure to do) anything likely to result in the avoidance of, any insurance cover for the benefit of the Retained Group; and (iv) factoring of any invoices Company or receivables by the Target Group; its assets;
(Exxi) [***]
the entry into capital commitments (Fexcluding capital commitments in relation to the LDPE Project) [***]
(G) any matter required or expressly contemplated by or resulting from between the provisions date of this Agreement and Completion of an aggregate amount in excess of $5,000,000;
(xxii) the entry into any agreement or the voluntary assumption of any legal obligation to do any of the acts and matters specified in this sub-clause 8(c);
(xxiii) the material variation of any agreement or transaction which the Company would by virtue of this sub-clause 8(c) have been prevented from entering into; and
(xxiv) the adoption or variation of any material employee bonus or incentive scheme (including performance targets).
(d) From the date hereof until the Completion Date, the Vendor will give, and will cause the Company to give, the Purchaser and its representatives such reasonable information in respect of the Company as the Purchaser may reasonably request and notice of any matter coming to the knowledge of ▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇’▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ or ▇▇▇▇▇▇ ▇▇▇▇▇ after the date of this Agreement which the relevant individual is aware or ought reasonably to have been aware constitutes a breach of this Clause 8 or any of the other Share Purchase Documents Warranties. The Vendor undertakes that immediately prior to Completion the individuals listed in Schedule 1 in the definition of “so far as the Vendor is aware” will be consulted by one or necessary to give effect to their provisions;
(H) any act, omission or matter being undertaken at the written request, or with the written consent, more of the Purchaser or Swisscom;
(I) any act or matter undertaken individuals named in the preceding sentence of this paragraph in order to give effect to or implement the arrangements set out in Schedule 10;
(J) other than any amendments to the Vodafone Share Incentive Plans applicable to employees of the Target Group, any actions determine whether a notification is required under this sub-clause in relation to employee share schemes to the extent put in place prior to the execution date a breach of this Agreement, and to the extent envisaged by, Clause 8 or necessary to implement, the arrangements set out in clause 19;
(K) any act undertaken to negotiate or – with the exclusion of the [***] - settle any matter which is the subject of the Special Indemnities, provided that (i) if there is a such a settlement, the sole obligation on the Target Group deriving from such settlement is the payment of a cash amount - with no residual liability for the Target Group or assumption of any other obligation - and the relevant agreed payment will be captured in the Completion Accounts (to the extent not already settled by the Completion Close Time); and (ii) the Seller shall notify in advance the Purchaser of any such activities;
(L) [***]
(M) the execution of the Brand Licence Agreement and the Target making the payments contemplated therein prior to Completion (including any steps necessary in connection with such payments); or
(N) any matter required to be undertaken in order to comply with any applicable law or any request by a Governmental Entity;
(O) any act or matter undertaken in connection with energy and insurance services or the co-selling of financial services, provided that such services are run within their ordinary course following launch; or
(P) [***]
4.3 Notwithstanding the provisions of clause 34, any request for consent under clause 4.1 and notice under clause 4.2 shall be made only by e-mail to all the following e-mail addresses: [***]it being understood that any request for consent under clause 4.1 or notice under clause 4.2 sent to less than all the e-mail addresses provided under this clause 4.3 shall be considered as not validly sent.
4.4 The consent of the Purchaser for the purposes of clause 4.1 may only be given from any of the e-mail addresses identified in clause 4.3, it being understood that the consent of the Purchaser for the purposes of clause 4.1 may be given by any one of the e-mail addresses identified in clause 4.3 and shall not require consent from all of themWarranties.
4.5 Consent under clause 4.1 shall be deemed to have been given to the Seller if such consent has neither been granted nor denied by the Purchaser within four (4e) Business Days of the Seller making a request for consent in accordance with clause 4.3 and clause 4.4.
4.6 Without prejudice to clause 36, the Parties agree that any information to be communicated to the Purchaser as a basis for the exercise of any consent right pursuant to clause 4.3 shall be held in confidence by the Purchaser.
4.7 Subject to applicable law and without prejudice to sub-clause 4.1 and 4.2(b), between the date of this Agreement and Completion, the Seller shallVendor will comply with, and procure that the Company complies with, the conduct of business provisions contained in paragraph 1 of Schedule 10 (“Wilton LDPE Project”).
(f) Between the date of this Agreement and Completion the Vendor shall procure that the Target Group shallCompany shall not depart in any material respect from existing commitments to capital expenditure, as applicableexcluding any such commitments to the extent they relate to “Project X”, carry out being the activities mentioned proposal to convert the Arosolvar unit to naphtha processing in this clause 4.7. order to increase feed-product differentials.
(Ag) The Seller shall, or Vendor shall procure that the Target Company shall by no later than immediately before Completion repay any amount owed to the Vendor’s Group shall:properly to be regarded as within the Intra-Group Balances to the Vendor (as trustee for the relevant members of the Vendors’ Group) and the Vendor shall procure that the relevant member of the Vendor’s Group shall repay any amount owed to the Company properly to be regarded as within the Intra-Group Balances to the Company. Such repayment shall be made in immediately available funds and in the currency in which the relevant amount was expressed to be repayable regardless of whether relevant amounts are then due or payable such that following the repayments contemplated by this sub-clause, Intra-Group Balances as at Completion will be zero. Subject to the following sentence, if following Completion, it is discovered that any Intra Group Balance remains after such repayment, whether owing by the Company or by a member of the Vendor’s Group, such remaining Intra-Group Balance shall be written off by the Company and the relevant member of the Vendor’s Group. Where any such remaining Intra-Group Balances are owed to the Company and, had all such Intra-Group Balances been settled immediately prior to Completion, that settlement would have resulted in an increase in the Initial Cash Consideration pursuant to an adjustment under Clause 4(a)(i) or (ii), but for the fact that such increase was prevented or limited under Clause 4(a) by virtue of it otherwise resulting in an amount over the Debt Free Price being payable, then to the extent only that such increase would have been so prevented or limited, the Company shall not be obliged to write off such remaining Intra-Group Balances.
(h) Following the date of this Agreement and prior to the Completion Date the Vendor shall be permitted to procure that the Company completes the Lease.
(i) deliver Following the date of this Agreement and prior to the Purchaser: Completion Date the Vendor shall be permitted to procure that the Company carries out or procures the carrying out of the Outstanding Refurbishment Works. Following the Completion Date, the Purchaser shall procure that the Company carries out or procures the carrying out of the Outstanding Refurbishment Works.
(aj) [***] The Purchaser shall pay to the Vendor on the Completion Date the sum of £0.35 million exclusive of VAT (if applicable) towards the Outstanding Refurbishment Cost. The Outstanding Refurbishment Cost itself shall be met by the Vendor as and when such costs fall due.
(bk) [***]
(c) [***]
(ii) [***]
(B) [***]
4.8 [***] Following the date of this Agreement and prior to the Completion Date and to the extent not already implemented by the Company, the Vendor will be permitted at its own expense to continue to negotiate on behalf of the Company a 10% reduction in the surplus floor space demised by the Lease in accordance with clause 6.7 of the Lease and/or at its own expense to otherwise negotiate a reduction in surplus floor space demised by the Lease on terms which do not involve the Company incurring any cost or expense not fully for the account of the Vendor.
Appears in 1 contract
CONDUCT OF BUSINESS BEFORE COMPLETION.
4.1 Subject to applicable law and to sub-clause 4.2, the Seller shall procure that the Target Group carries on its business in the ordinary course in a manner substantially consistent with the past practice during the twelve (12) months preceding the date of this Agreement with the consequence that the Seller shall not, and shall procure that the Target Group shall not, between the date of this Agreement and Completion undertake any of the acts or matters deviating from the ordinary course of business, including but not limited to the acts and matters listed in Schedule 8, in each case, without the prior written consent of the Purchaser (such consent not to be unreasonably withheld, conditioned or delayed).
4.2 Neither clause 4.1 nor Schedule 8 shall operate so as to restrict or prevent:
(A) any act, omission or matter reasonably undertaken by any member of the Seller’s Group in the case of an emergency or disaster or other serious incident or circumstance that might result in a serious adverse effect on the Target Group with the intention of minimising any adverse effect on the Target Group, in which case, the Seller shall notify in advance the Purchaser of any such activities undertaken or, if it is not possible, as soon as reasonably practicable thereafter;
(B) completion or performance of any obligation undertaken pursuant to or in connection with any contract or arrangement entered into by any member of the Target Group before the date of this Agreement;
(C) payment in respect of any liability incurred by the Target Group (or in respect of which the action that resulted in such liability had been taken) prior to the date of this Agreement;
(D) any ordinary course cash management activities by the Target Group or the Seller as at the date of this Agreement, including: (i) capitalising, settling or incurring any Intra- Group Debt; (ii) implementing, operating or unwinding any cash pooling arrangements; (iii) upstreaming and downstreaming of funds by way of inter-company loans, dividends, distributions and equity contributions between members of the Target Group and/or members of the Retained Group; and (iv) factoring of any invoices or receivables by the Target Group;
(E) [***]
(F) [***]
(G) any matter required or expressly contemplated by or resulting from the provisions of this Agreement or any of the other Share Purchase Documents or necessary to give effect to their provisions;
(H) any act, omission or matter being undertaken at the written request, or with the written consent, of the Purchaser or Swisscom;
(I) any act or matter undertaken to give effect to or implement the arrangements set out in Schedule 10;
(J) other than any amendments to the Vodafone Share Incentive Plans applicable to employees of the Target Group, any actions in relation to employee share schemes to the extent put in place prior to the execution date of this Agreement, and to the extent envisaged by, or necessary to implement, the arrangements set out in clause 19;
(K) any act undertaken to negotiate or – with the exclusion of the [***] - settle any matter which is the subject of the Special Indemnities, provided that (i) if there is a such a settlement, the sole obligation on the Target Group deriving from such settlement is the payment of a cash amount - with no residual liability for the Target Group or assumption of any other obligation - and the relevant agreed payment will be captured in the Completion Accounts (to the extent not already settled by the Completion Close Time); and (ii) the Seller shall notify in advance the Purchaser of any such activities;
(L) [***]
(M) the execution of the Brand Licence Agreement and the Target making the payments contemplated therein prior to Completion (including any steps necessary in connection with such payments); or
(N) any matter required to be undertaken in order to comply with any applicable law or any request by a Governmental Entity;
(O) any act or matter undertaken in connection with energy and insurance services or the co-selling of financial services, provided that such services are run within their ordinary course following launch; or
(P) [***]
4.3 Notwithstanding the provisions of clause 34, any request for consent under clause 4.1 and notice under clause 4.2 shall be made only by e-mail to all the following e-mail addresses: [***]it being understood that any request for consent under clause 4.1 or notice under clause 4.2 sent to less than all the e-mail addresses provided under this clause 4.3 shall be considered as not validly sent.
4.4 The consent of the Purchaser for the purposes of clause 4.1 may only be given from any of the e-mail addresses identified in clause 4.3, it being understood that the consent of the Purchaser for the purposes of clause 4.1 may be given by any one of the e-mail addresses identified in clause 4.3 and shall not require consent from all of them.
4.5 Consent under clause 4.1 shall be deemed to have been given to the Seller if such consent has neither been granted nor denied by the Purchaser within four (4) Business Days of the Seller making a request for consent in accordance with clause 4.3 and clause 4.4.
4.6 Without prejudice to clause 36, the Parties agree that any information to be communicated to the Purchaser as a basis for the exercise of any consent right pursuant to clause 4.3 shall be held in confidence by the Purchaser.
4.7 Subject to applicable law and without prejudice to clause 4.1 and 4.2, between the date hereof and Completion (and for the benefit of this Agreement and Completion, Dogus as well as the Seller shall, and shall procure that the Target Group shall, as applicable, carry out the activities mentioned in this clause 4.7. Purchaser):
(A) The the Seller shallshall not sell, transfer, Encumber or otherwise dispose of the Shares or any interest therein and shall not make or progress any preparations in respect of a public offering or private placement of such Shares;
(B) neither the Seller nor any GE Group Member shall acquire, receive or subscribe for any further shares in the share capital of the Company (or enter into an option or agreement to do so);
(C) the Seller shall not amend, supplement or replace the terms of the Dogus Shareholders’ Agreement, the Dogus Shareholders’ Agreement Side Letter or any agreements related thereto where it would or reasonably may delay or frustrate Completion or affect the rights of the Purchaser under this Agreement (other than where required by law or regulation);
(D) the Seller shall comply with and enforce in all material respects the terms of Article II (Share Transfers), Section 3.01 (Public Listing), Section 3.08 (Commercial Protections) and Section 3.10 (Brand) of the Dogus Shareholders’ Agreement;
(E) the Seller shall take all reasonable actions within its power and to the extent permitted by law (including by voting the Shares and, so far as lawful, procuring that its nominees on the board of directors of the Company support any vote held at board or executive committee level) to procure that the Target Company and/or Company Group shallMembers do not undertake any material act or course of conduct which is outside the ordinary course of the Company’s or the Company Group’s business as determined by its past practice without the written consent of the Purchaser;
(F) notwithstanding sub-clause 4.1(E), unless required by applicable law or regulation, the Seller may not approve or conduct any of the actions listed in:
(i) deliver Sections 3.05(c) (i) (changes to share rights), (ii) (change in board numbers), (iii) (change in board quorum), (v) (liquidation), (vii) (share acquisitions/disposals) (except for the disposal of shares in Eureko Sigorta under an existing put arrangement and the shares in Garanti Emeklilik under an existing call arrangement, in both cases such disposals being subject to the same or substantially similar terms and conditions as already agreed upon), (ix) (related party), (xi) (constitutional amendments), (xii) (treasury/accounting policy changes), (xiii) (incur indebtedness), (xiv) (guarantees), (xv) (share issues), (xvi) (asset acquisitions/disposals), (xvii) (non-ordinary transactions), (xviii) (lending policies) (unless such adoption or amendment of policies is consistent with past practice in the ordinary course of the Company’s lending activities) or (xix) (mergers/joint ventures) of the Dogus Shareholders’ Agreement without the written consent of the Purchaser:
(a) [***]
(b) [***]
(c) [***] ; or
(ii) [***] Section 3.09 of the Dogus Shareholders’ Agreement; and
(BG) [***]
4.8 [***] the Seller shall not enter into any arrangement or agreement, conditionally or otherwise, to do any of the foregoing.
Appears in 1 contract
Sources: Share Purchase Agreement (Banco Bilbao Vizcaya Argentaria, S.A.)
CONDUCT OF BUSINESS BEFORE COMPLETION.
4.1 Subject to applicable law and to sub-clause 4.2, the Seller shall procure that the Target Group carries on its business in the ordinary course in a manner substantially consistent with the past practice during the twelve (12) months preceding the date of this Agreement with the consequence that the Seller shall not, and shall procure that the Target Group shall not, between the date of this Agreement and Completion undertake any of the acts or matters deviating from the ordinary course of business, including but not limited to the acts and matters listed in Schedule 8, in each case, without the prior written consent of the Purchaser (such consent not to be unreasonably withheld, conditioned or delayed).
4.2 Neither clause 4.1 nor Schedule 8 shall operate so as to restrict or prevent:
(A) any act, omission or matter reasonably undertaken by any member of the Seller’s Group in the case of an emergency or disaster or other serious incident or circumstance that might result in a serious adverse effect on the Target Group with the intention of minimising any adverse effect on the Target Group, in which case, the Seller shall notify in advance the Purchaser of any such activities undertaken or, if it is not possible, as soon as reasonably practicable thereafter;
(B) completion or performance of any obligation undertaken pursuant to or in connection with any contract or arrangement entered into by any member of the Target Group before the date of this Agreement;
(C) payment in respect of any liability incurred by the Target Group (or in respect of which the action that resulted in such liability had been taken) prior to the date of this Agreement;
(D) any ordinary course cash management activities by the Target Group or the Seller as at the date of this Agreement, including: (i) capitalising, settling or incurring any Intra- Group Debt; (ii) implementing, operating or unwinding any cash pooling arrangements; (iii) upstreaming and downstreaming of funds by way of inter-company loans, dividends, distributions and equity contributions between members of the Target Group and/or members of the Retained Group; and (iv) factoring of any invoices or receivables by the Target Group;
(E) [***]
(F) [***]
(G) any matter required or expressly contemplated by or resulting from the provisions of this Agreement or any of the other Share Purchase Documents or necessary to give effect to their provisions;
(H) any act, omission or matter being undertaken at the written request, or with the written consent, of the Purchaser or Swisscom;
(I) any act or matter undertaken to give effect to or implement the arrangements set out in Schedule 10;
(J) other than any amendments to the Vodafone Share Incentive Plans applicable to employees of the Target Group, any actions in relation to employee share schemes to the extent put in place prior to the execution date of this Agreement, and to the extent envisaged by, or necessary to implement, the arrangements set out in clause 19;
(K) any act undertaken to negotiate or – with the exclusion of the [***] - settle any matter which is the subject of the Special Indemnities, provided that (i) if there is a such a settlement, the sole obligation on the Target Group deriving from such settlement is the payment of a cash amount - with no residual liability for the Target Group or assumption of any other obligation - and the relevant agreed payment will be captured in the Completion Accounts (to the extent not already settled by the Completion Close Time); and (ii) the Seller shall notify in advance the Purchaser of any such activities;
(L) [***]
(M) the execution of the Brand Licence Agreement and the Target making the payments contemplated therein prior to Completion (including any steps necessary in connection with such payments); or
(N) any matter required to be undertaken in order to comply with any applicable law or any request by a Governmental Entity;
(O) any act or matter undertaken in connection with energy and insurance services or the co-selling of financial services, provided that such services are run within their ordinary course following launch; or
(P) [***]
4.3 Notwithstanding the provisions of clause 34, any request for consent under clause 4.1 and notice under clause 4.2 shall be made only by e-mail to all the following e-mail addresses: [***]it being understood that any request for consent under clause 4.1 or notice under clause 4.2 sent to less than all the e-mail addresses provided under this clause 4.3 shall be considered as not validly sent.
4.4 The consent of the Purchaser for the purposes of clause 4.1 may only be given from any of the e-mail addresses identified in clause 4.3, it being understood that the consent of the Purchaser for the purposes of clause 4.1 may be given by any one of the e-mail addresses identified in clause 4.3 and shall not require consent from all of them.
4.5 Consent under clause 4.1 shall be deemed to have been given to the Seller if such consent has neither been granted nor denied by the Purchaser within four (4) Business Days of the Seller making a request for consent in accordance with clause 4.3 and clause 4.4.
4.6 Without prejudice to clause 36, the Parties agree that any information to be communicated to the Purchaser as a basis for the exercise of any consent right pursuant to clause 4.3 shall be held in confidence by the Purchaser.
4.7 Subject to applicable law and without prejudice to clause 4.1 and 4.2, between the date hereof and Completion (and for the benefit of this Agreement GECC and Completion, Arastirma as well as the Seller shall, and shall procure that the Target Group shall, as applicable, carry out the activities mentioned in this clause 4.7. Purchaser):
(A) The the Seller shallshall not sell, transfer, Encumber or otherwise dispose of the Shares or any interest therein and shall not make or progress any preparations in respect of a public offering or private placement of such Shares;
(B) neither the Seller nor any Dogus Group Member shall acquire, receive or subscribe for any further shares in the share capital of the Company (or enter into an option or agreement to do so);
(C) the Seller shall not amend, supplement or replace the terms of the Dogus Shareholders’ Agreement, the Dogus Shareholders’ Agreement Side Letter or any agreements related thereto where it would or reasonably may delay or frustrate Completion or affect the rights of the Purchaser under this Agreement (other than where required by law or regulation);
(D) the Seller shall comply with and enforce in all material respects the terms of Article II (Share Transfers), Section 3.01 (Public Listing), Section 3.08 (Commercial Protections) and Section 3.10 (Brand) of the Dogus Shareholders’ Agreement;
(E) the Seller shall take all reasonable actions within its power and to the extent permitted by law (including by voting the Shares and, so far as lawful, procuring that its nominees on the board of directors of the Company support any vote held at board or executive committee level) to procure that the Target Company and/or Company Group shallMembers do not undertake any material act or course of conduct which is outside the ordinary course of the Company’s or the Company Group’s business as determined by its past practice without the written consent of the Purchaser;
(F) notwithstanding sub-clause 4.1(E), unless required by applicable law or regulation, the Seller may not approve or conduct any of the actions listed in:
(i) deliver Sections 3.05(c) (i) (changes to share rights), (ii) (change in board numbers), (iii) (change in board quorum), (v) (liquidation), (vii) (share acquisitions/disposals) (except for the disposal of shares in Eureko Sigorta under an existing put arrangement and the shares in Garanti Emeklilik under an existing call arrangement, in both cases such disposals being subject to the same or substantially similar terms and conditions as already agreed upon), (ix) (related party), (xi) (constitutional amendments), (xii) (treasury/accounting policy changes), (xiii) (incur indebtedness), (xiv) (guarantees), (xv) (share issues), (xvi) (asset acquisitions/disposals), (xvii) (non-ordinary transactions), (xviii) (lending policies) (unless such adoption or amendment of policies is consistent with past practice in the ordinary course of the Company’s lending activities) or (xix) (mergers/joint ventures) of the Dogus Shareholders’ Agreement without the written consent of the Purchaser:
(a) [***]
(b) [***]
(c) [***] ; or
(ii) [***] Section 3.09 of the Dogus Shareholders’ Agreement; and
(BG) [***]
4.8 [***] the Seller shall not enter into any arrangement or agreement, conditionally or otherwise, to do any of the foregoing.
Appears in 1 contract
Sources: Share Purchase Agreement (Banco Bilbao Vizcaya Argentaria, S.A.)
CONDUCT OF BUSINESS BEFORE COMPLETION.
4.1 Subject to applicable law and to clause 4.2, the The Seller shall procure that the Target Group carries on its business in the ordinary course in a manner substantially consistent with the past practice during the twelve (12) months preceding the date of this Agreement with the consequence that the Seller shall not, and shall procure that the Target Group shall not, between the date of this Agreement and Completion undertake each member of the Target Group, other than any which are dormant or non-trading, shall carry on business in the ordinary course and in accordance with all applicable legal and regulatory requirements and, in particular, but without limitation each member of the Target Group shall not do or agree to any of the acts or matters deviating from the ordinary course of business, including but not limited to the acts and matters listed in Schedule 8following except, in each case, without the as required or permitted under any Share Purchase Document or with prior written consent in writing of the Purchaser Purchaser, for the avoidance of doubt, including any acts or omissions in accordance with clause 33, (such consent not to be unreasonably withheld, conditioned or delayed).
4.2 Neither clause 4.1 nor Schedule 8 shall operate so as to restrict or prevent:
(A) delayed and provided that any act, omission or matter reasonably undertaken action by any a member of the Seller’s Group in the case of an emergency or disaster or other serious incident or circumstance that might result in a serious adverse effect on the Target Group with the intention of minimising any adverse effect on the Target Group, in which case, the Seller shall notify in advance the Purchaser of any such activities undertaken or, if it is not possible, as soon as reasonably practicable thereafter;
(B) completion or performance of any obligation undertaken pursuant to or in connection with any contract or arrangement entered into by any member of the Target Group before the date of this Agreement;
(C) payment in respect of any liability incurred by the Target Group (or in respect of which the action that resulted in such liability had been taken) prior to the date of this Agreement;
(D) any ordinary course cash management activities by the Target Group or the Seller as taken at the date written request of the Purchaser shall be deemed to have the consent of the Purchaser): UK1 5276565v.18
(a) any offer by a member of the Target Group or any member of the Retained Group to engage any new employee or enter into a retainer with a consultant to carry out duties in relation to the business of the Target Group or, save in respect of a dismissal for cause, any dismissal by a member of the Target Group or any member of the Retained Group of any Employee or consultant carrying out duties in relation to the business of the Target Group;
(b) any material change to the 1861 Business Plan;
(c) any disposal of any interest in any material part of the business and undertaking of the Target Group;
(d) the entering into, termination or variation (in each case other than in the ordinary course of its insurance and reinsurance business) of any material contract or commitment or the entering into of any long-term liability (in excess of three months) relating to or affecting the business of the Target Group, save that this Agreementparagraph shall not permit the entering into, includingtermination or variation of any reinsurance contract with any member of the Retained Group;
(e) except in the ordinary course of its insurance and reinsurance business in relation to its investment portfolio any acquisition of any share or interest in any company, partnership, or other venture;
(f) modify the rights attached to the Shares;
(g) create, allot, issue, acquire, repay or redeem any share or loan capital or agree, arrange or undertake to do any of those things;
(h) declare, pay or make a dividend or distribution;
(i) pass a shareholders' resolution;
(j) amend the terms and conditions of employment or pension benefits of any Employee or provide, or agree to provide, any gratuitous payment or benefit to any Employee (or any of their dependants);
(k) except in the ordinary course of its insurance and reinsurance business institute, compromise, settle, release, discharge or compound any civil, criminal, arbitration or other proceedings or any liability, claim, action, demand or dispute, or waive any right in relation to any of the foregoing;
(l) amend, or agree to amend, the terms of its borrowing or indebtedness in the nature of borrowing or create, incur, or agree to create or incur, borrowing or indebtedness in the nature of borrowing; UK1 5276565v.18
(m) except in the ordinary course of its insurance and reinsurance business give, or agree to give, a guarantee, indemnity or other agreement to secure, or incur financial or other obligations with respect to, another person's obligation;
(n) enter into an agreement, arrangement or obligation (legally enforceable or not) in which: (i) capitalising, settling the Seller or incurring any Intra- Group Debt; (ii) implementing, operating or unwinding any cash pooling arrangements; (iii) upstreaming and downstreaming of funds by way of inter-company loans, dividends, distributions and equity contributions between members of the Target Group and/or members other member of the Retained Group; and (ivii) factoring a director or former director of any invoices or receivables by the Target GroupGroup or the Retained Group or a person connected with any such director or former director is interested; or
(Eo) [***]
(F) [***]
(G) any matter required knowingly do or expressly contemplated by or resulting from the provisions of this Agreement or any of the other Share Purchase Documents or necessary omit to give effect to their provisions;
(H) any act, omission or matter being undertaken at the written requestdo, or with the written consentknowingly cause to be done or omitted to be done, of the Purchaser or Swisscom;
(I) any act or matter undertaken to give effect to thing which the Seller knows would result in any Warranty being untrue or implement the arrangements set out in Schedule 10;
(J) other than any amendments to the Vodafone Share Incentive Plans applicable to employees of the Target Group, any actions in relation to employee share schemes to the extent put in place inaccurate when repeated immediately prior to the execution date of this Agreement, and to the extent envisaged by, or necessary to implement, the arrangements set out in clause 19;
(K) any act undertaken to negotiate or – with the exclusion of the [***] - settle any matter which is the subject of the Special IndemnitiesCompletion, provided that (i) if there is a such a settlement, the sole obligation on the Target Group deriving from such settlement is the payment of a cash amount - with no residual liability for the Target Group or assumption of any other obligation - and the relevant agreed payment will be captured in the Completion Accounts (to the extent not already settled by the Completion Close Time); and (iiA) the Seller shall notify not be in advance the Purchaser breach of any such activities;
this sub-clause 4.1(o) if (L) [***]
(Mi) the execution of the Brand Licence Agreement and the Target making the payments contemplated therein prior to Completion (including any steps necessary in connection with such payments); relevant act or
(N) any matter required thing was done, omitted to be undertaken done (or caused to be done or omitted to be done) in order to comply with any applicable law legal or regulatory requirement or any request legally binding agreement entered into by a Governmental Entity;
(O) member of the Target Group prior to the date of this Agreement or any act duty of a member of the Target Group existing or matter undertaken arising in connection with energy and insurance services or the co-selling of financial services, provided that such services are run within their ordinary course following launch; of business, or
(Pii) [***]
4.3 Notwithstanding the provisions relevant act, thing or omission was not reasonably capable of being prevented or avoided and (B) for the avoidance of doubt, neither (i) the termination of the employment of any Employee for cause after the execution of this Agreement nor (ii) the resignation of any Employee after the execution of this Agreement shall give rise to any breach of this sub-clause 34, any request for consent under clause 4.1 and notice under clause 4.2 shall be made only by e-mail to all the following e-mail addresses: [***]it being understood that any request for consent under clause 4.1 or notice under clause 4.2 sent to less than all the e-mail addresses provided under this clause 4.3 shall be considered as not validly sent4.1(o).
4.4 The consent of the Purchaser for the purposes of clause 4.1 may only be given from any of the e-mail addresses identified in clause 4.3, it being understood that the consent of the Purchaser for the purposes of clause 4.1 may be given by any one of the e-mail addresses identified in clause 4.3 and shall not require consent from all of them.
4.5 Consent under clause 4.1 shall be deemed to have been given to the Seller if such consent has neither been granted nor denied by the Purchaser within four (4) Business Days of the Seller making a request for consent in accordance with clause 4.3 and clause 4.4.
4.6 Without prejudice to clause 36, the Parties agree that any information to be communicated to the Purchaser as a basis for the exercise of any consent right pursuant to clause 4.3 shall be held in confidence by the Purchaser.
4.7 Subject to applicable law and without prejudice to clause 4.1 and 4.2, between 4.2 From the date of this Agreement and Completion, until Completion the Seller shall (to the extent permitted by applicable law and regulation) keep the Purchaser informed as to all material developments in the operation of the business of the Target Group and shall, at the Purchaser’s cost, provide, or procure the provision of, such information regarding the business and affairs of the Target Group as the Purchaser may reasonably require (including without limitation in relation to claims handling and correspondence with regulators), provided that the obligations of the Seller under this sub-clause 4.2 shall not extend to allowing access to any information which relates to any member of the Retained Group or its activities otherwise than in connection with the Target Group. All information received by the Purchaser under this sub-clause 4.2 shall be treated as confidential by the Purchaser and shall not be disclosed to any third party without the Seller’s prior written consent at any time prior to Completion and the provisions of clause 23 shall apply to all such information.
4.3 The Seller shall procure that each member of the Target Group shall, as applicable, carry out the activities mentioned in this clause 4.7.
(A) The Seller shall, that is dormant or non-trading shall procure that the Target Group shall:
(i) deliver not cease to the Purchaser:
(a) [***]
(b) [***]
(c) [***]
(ii) [***]
(B) [***]
4.8 [***] be dormant or non-trading prior to Completion.
Appears in 1 contract
Sources: Share Purchase Agreement (Flagstone Reinsurance Holdings, S.A.)