MANAGEMENT OF THE COMPANY AND ITS SUBSIDIARIES UNTIL THE CLOSING DATE. 6.1 For the purposes of this Agreement, the transition period shall be the period that elapses between the execution of this Agreement and Closing (the “Transition Period”). 6.2 During the Transition Period, the Seller shall cause the Company and each of its Subsidiaries to conduct its business in the ordinary course consistent with past practice and to preserve its business organization and, except as pursuant to (i) existing written contracts or written commitments that have been Fairly Disclosed in the Information Disclosed or (ii) the provisions of this Agreement, the Seller shall not (and shall cause the Company and its Subsidiaries not to), without the prior written approval of the Buyers’ Representative (which shall not be unreasonably denied): 6.2.1 materially change the nature, strategy or scope of, or discontinue or cease to operate all or a material part of, the business of any of the Subsidiaries or the Atento Assets and Liabilities; 6.2.2 change the legal form of any Subsidiary; 6.2.3 change the legal or corporate structure of any of the Subsidiaries, unless otherwise required by law; 6.2.4 modify the articles of association or other constitutional documents (other than in connection with a Share Cancel Event (as defined in Clause 6.2.15) of, or approve the transformation, merger or demerger, spin-off, or the global or partial assignment of any material assets or liabilities of, any Subsidiary, unless otherwise required by law, in which case the Company shall use all reasonable endeavours to procure that such modifications do not have an adverse effect on such Subsidiary; 6.2.5 acquire through any Subsidiary any assets from the Seller, the Company or any Third Party in excess of €1,000,000; 6.2.6 except for those commitments already undertaken by the Subsidiaries before the execution of this Agreement, incur any capital expenditure other than in the ordinary course of business consistent with past practice, and only to the extent (and not in excess of) the 2012 budget as set forth in the Information Disclosed; 6.2.7 acquire through any Subsidiary any securities or other equity or debt interest in excess of €1,000,000 in the Seller, the Company or any Third Party; 6.2.8 sell, lease, license, or otherwise dispose of the Atento Assets and Liabilities or any other assets of any of the Subsidiaries with individual value in excess of €50,000 or aggregate value in excess of €250,000; 6.2.9 directly or indirectly sell, transfer or otherwise dispose of, or create any Encumbrance over, any securities of the Subsidiaries or over the Atento Assets and Liabilities; 6.2.10 take any action that would incur or increase any indebtedness, in each case in excess of €500,000 except for repayment of any or all the Existing Facilities or in respect of the Argentina Transaction; 6.2.11 grant or extend from any Subsidiary any loan (of any amount) with an individual value in excess of €100,000 or with an aggregate value in excess of €500,000 to the Seller, the Company, any other member of the Retained Group or any Third-Party(ies); 6.2.12 grant any new Encumbrance over any of the material assets of any of the Subsidiaries or over the Atento Assets and Liabilities, in each case relating an amount higher than €100,000; 6.2.13 enter into, terminate (unless such termination occurs in accordance with the terms of the Material Contract) or change any material terms or conditions of any Material Contracts that could affect the Subsidiaries and/or the Atento Assets and Liabilities); 6.2.14 negotiate, enter into, or terminate any agreement having a value in excess of €100,000 that could affect the Subsidiaries or the Atento Assets and Liabilities except in the ordinary course of business consistent with past practice and on arm’s length terms; 6.2.15 issue, offer, grant, redeem, repurchase or cancel any shares or any other securities of any of the Subsidiaries (other than redeem or cancel any shares or other securities of Atento Brazil or Atento Mexico (a “Share Cancel Event”)) or grant any option or other right to acquire or subscribe for any securities of any of the Subsidiaries; 6.2.16 subject to Clause 6.2.17 make any material change to the terms and conditions: (a) of employment of any Senior Employee; (b) of any material consultancy arrangement; or (c) upon which any director or officer or Senior Employee serves any Subsidiary, except for any modification that is mandatory by law or required by any government authority or is made pursuant to the terms of any existing applicable collective bargaining agreement; 6.2.17 unless for reasonable cause, dismiss any Senior Employee or engage or appoint any person who will be a Senior Employee of any of the Subsidiaries or any Senior Employee to be transferred with the Atento Assets and Liabilities; 6.2.18 enter into any guarantee or indemnity by any of the Subsidiaries other than in the ordinary course of trading; 6.2.19 change its accounting reference date, make any change to the accounting method, practices or policies or Tax procedures, change its residence for Taxation purposes, make or change any election with respect to Taxation or amend any Tax Return, settle any inquiry, audit or dispute relating to Taxation, except for mandatory changes deriving from the Subsidiaries departing from the consolidated tax group of the Seller; 6.2.20 liquidate, wind-up, or put any Subsidiary into any insolvency procedure; 6.2.21 regarding the Subsidiaries, compromise, release, settle or discharge any litigation, arbitration proceedings or insurance claim, in respect of an amount exceeding €100,000 per each single litigation, claim or proceeding, and except for debt collection in the ordinary course; 6.2.22 conduct its business otherwise than in compliance with all applicable laws, by-laws and regulations; 6.2.23 request (or accept) the return of any amount forming part of the Judicial Deposits unless such amount relates to a Labour Dispute that has been finally settled or determined; 6.2.24 permit Atento Brazil, Atento Mexico or Atento NV to declare or pay any dividend except for the Brazil Dividend and the Mexico Dividend; or 6.2.25 enter into an agreement or commitment to do or approve any of the foregoing. 6.3 Notwithstanding the above, the Seller shall be entitled to: (i) enter into foreign exchange derivative instruments in connection with the Brazil Dividend and the Mexico Dividend; and (ii) carry out any of the transactions referred to above if the Seller has obtained the Buyers’ Representative’s prior written consent which shall not be reasonably withheld. If the Seller gives the Buyer written notice of its desire to carry out any transaction referred to in Clause 6.2 and the Buyers’ Representative does not express any opposition or objection within a period of ten (10) Business Days (or in the case of Clause 6.2.13, five (5) Business Days) following receipt by the Buyers’ Representative of such written notice, the relevant transaction shall be considered authorized by the Buyers’ Representative. 6.4 The Seller undertakes to notify the Buyer in writing promptly after becoming aware of any matter which would, or is reasonably likely to, constitute a breach of Clause 6.2.
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MANAGEMENT OF THE COMPANY AND ITS SUBSIDIARIES UNTIL THE CLOSING DATE. 6.1 For the purposes of this Agreement, the transition period shall be the period that elapses between the execution of this Agreement and Closing (the “Transition Period”).
6.2 During the Transition Period, the Seller shall cause the Company and each of its Subsidiaries to conduct its business in the ordinary course consistent with past practice and to preserve its business organization and, except as pursuant to (i) existing written contracts or written commitments that have been Fairly Disclosed in the Information Disclosed or (ii) the provisions of this Agreement, the Seller shall not (and shall cause the Company and its Subsidiaries not to), without the prior written approval of the Buyers’ Representative (which shall not be unreasonably denied):
6.2.1 materially change the nature, strategy or scope of, or discontinue or cease to operate all or a material part of, the business of any of the Subsidiaries or the Atento Assets and Liabilities;
6.2.2 change the legal form of any Subsidiary;
6.2.3 change the legal or corporate structure of any of the Subsidiaries, unless otherwise required by law;
6.2.4 modify the articles of association or other constitutional documents (other than in connection with a Share Cancel Event (as defined in Clause 6.2.15) of, or approve the transformation, merger or demerger, spin-off, or the global or partial assignment of any material assets or liabilities of, any Subsidiary, unless otherwise required by law, in which case the Company shall use all reasonable endeavours to procure that such modifications do not have an adverse effect on such Subsidiary;
6.2.5 acquire through any Subsidiary any assets from the Seller, the Company or any Third Party in excess of €1,000,000;
6.2.6 except for those commitments already undertaken by the Subsidiaries before the execution of this Agreement, incur any capital expenditure other than in the ordinary course of business consistent with past practice, and only to the extent (and not in excess of) the 2012 budget as set forth in the Information Disclosed;
6.2.7 acquire through any Subsidiary any securities or other equity or debt interest in excess of €1,000,000 in the Seller, the Company or any Third Party;
6.2.8 sell, lease, license, or otherwise dispose of the Atento Assets and Liabilities or any other assets of any of the Subsidiaries with individual value in excess of €50,000 or aggregate value in excess of €250,000;
6.2.9 directly or indirectly sell, transfer or otherwise dispose of, or create any Encumbrance over, any securities of the Subsidiaries or over the Atento Assets and Liabilities;
6.2.10 take any action that would incur or increase any indebtedness, in each case in excess of €500,000 except for repayment of any or all the Existing Facilities or in respect of the Argentina Transaction;
6.2.11 grant or extend from any Subsidiary any loan (of any amount) with an individual value in excess of €100,000 or with an aggregate value in excess of €500,000 to the Seller, the Company, any other member of the Retained Group or any Third-Party(ies);
6.2.12 grant any new Encumbrance over any of the material assets of any of the Subsidiaries or over the Atento Assets and Liabilities, in each case relating an amount higher than €100,000;
6.2.13 enter into, terminate (unless such termination occurs in accordance with the terms of the Material Contract) or change any material terms or conditions of any Material Contracts that could affect the Subsidiaries and/or the Atento Assets and Liabilities);
6.2.14 negotiate, enter into, or terminate any agreement having a value in excess of €100,000 that could affect the Subsidiaries or the Atento Assets and Liabilities except in the ordinary course of business consistent with past practice and on arm’s length terms;
6.2.15 issue, offer, grant, redeem, repurchase or cancel any shares or any other securities of any of the Subsidiaries (other than redeem or cancel any shares or other securities of Atento Brazil or Atento Mexico (a “Share Cancel Event”)) or grant any option or other right to acquire or subscribe for any securities of any of the Subsidiaries;
6.2.16 subject to Clause 6.2.17 make any material change to the terms and conditions: (a) of employment of any Senior Employee; (b) of any material consultancy arrangement; or (c) upon which any director or officer or Senior Employee serves any Subsidiary, except for any modification that is mandatory by law or required by any government authority or is made pursuant to the terms of any existing applicable collective bargaining agreement;
6.2.17 unless for reasonable cause, dismiss any Senior Employee or engage or appoint any person who will be a Senior Employee of any of the Subsidiaries or any Senior Employee to be transferred with the Atento Assets and Liabilities;
6.2.18 enter into any guarantee or indemnity by any of the Subsidiaries other than in the ordinary course of trading;
6.2.19 change its accounting reference date, make any change to the accounting method, practices or policies or Tax procedures, change its residence for Taxation purposes, make or change any election with respect to Taxation or amend any Tax Return, settle any inquiry, audit or dispute relating to Taxation, except for mandatory changes deriving from the Subsidiaries departing from the consolidated tax group of the Seller;
6.2.20 liquidate, wind-up, or put any Subsidiary into any insolvency procedure;
6.2.21 regarding the Subsidiaries, compromise, release, settle or discharge any litigation, arbitration proceedings or insurance claim, in respect of an amount exceeding €100,000 per each single litigation, claim or proceeding, and except for debt collection in the ordinary course;
6.2.22 conduct its business otherwise than in compliance with all applicable laws, by-laws and regulations;
6.2.23 request (or accept) the return of any amount forming part of the Judicial Deposits unless such amount relates to a Labour Dispute that has been finally settled or determined;
6.2.24 permit Atento Brazil, Atento Mexico or Atento NV to declare or pay any arty dividend except for the Brazil Dividend and the Mexico Dividend; or
6.2.25 enter into an agreement or commitment to do or approve any of the foregoing.
6.3 Notwithstanding the above, the Seller shall be entitled to: (i) enter into foreign exchange derivative instruments in connection with the Brazil Dividend and the Mexico Dividend; and (ii) carry out any of the transactions referred to above if the Seller has obtained the Buyers’ Representative’s prior written consent which shall not be reasonably withheld. If the Seller gives the Buyer written notice of its desire to carry out any transaction referred to in Clause 6.2 and the Buyers’ Representative does not express any opposition or objection within a period of ten (10) Business Days (or in the case of Clause 6.2.13, five (5) Business Days) following receipt by the Buyers’ Representative of such written notice, the relevant transaction shall be considered authorized by the Buyers’ Representative.
6.4 The Seller undertakes to notify the Buyer in writing promptly after becoming aware of any matter which would, or is reasonably likely to, constitute a breach of Clause 6.2.
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