PERIOD BEFORE COMPLETION. 5.1 Except as otherwise agreed with the Purchaser, and subject to clause 5.2, between the time of this Agreement and Completion each Seller shall exercise any and all rights it might have (including any voting rights attached to its Shares) to the extent it is legally able to do so to ensure that the business of each Group Company is carried out in accordance with the matters specified in schedule 2 (Pre-Completion Conduct of Group Companies). 5.2 Clause 5.1 shall not operate so as to restrict or prevent: (a) the completion or performance of any obligations undertaken pursuant to any contract or arrangement entered into by any member of the Group prior to the date of this Agreement that has been disclosed in the Data Room; (b) any matter contemplated in this Agreement or the other Transaction Documents; (c) any matter undertaken at the written request of the Purchaser; or (d) any matter required by law, regulation or any governmental or regulatory authority. 5.3 Each Seller shall, at the sole expense of the Purchaser exercise any and all rights it might have (including any voting rights attached to its Shares), to the extent it is legally able to do so, to ensure that each Group Company shall, save where unable to do so pursuant to any pre-existing confidentiality undertaking or pursuant to law or regulation: (a) allow the Purchaser and its agents access to, and to take copies of, the books (including cash books) and records of each Group Company; and (b) prepare for the introduction of the Purchaser’s normal working procedures in readiness for Completion in so far as is reasonable; and (c) co-operate with the Purchaser’s requests (if any) to request that counterparties to the Group’s contractual arrangements provide consent for, or waive their rights in respect of, any change of control of the relevant Group Company, including: (i) submitting the relevant written waiver or consent to the relevant counterparty promptly following a request from the Purchaser; (ii) promptly notifying the Purchaser (and providing copies or, in the case of non-written communications, details) of any substantive communications with or from the relevant counterparty in respect of a waiver or consent; (iii) following consultation with the Purchaser and with the Purchaser’s prior written consent, promptly providing such information and assistance as may be requested by any relevant counterparty in respect of a waiver or consent; (iv) using its reasonable endeavours to allow persons nominated by the Purchaser to attend all meetings (and participate in all telephone or other conversations) with any relevant counterparty; and (v) giving notice to the Purchaser of the grant of any waiver or consent by any relevant counterparty and delivering to the Purchaser a copy of each written waiver or consent duly executed by the relevant counterparty as soon as reasonably practicable following receipt of the same by any Seller or any Group Company. 5.4 The Institutional Seller shall exercise any and all rights it might have as a holder of Shares (including any voting rights attached to its Shares) to the extent it is legally able to do so to ensure that Article 3.4 (Sale) of the Articles is operated and performed in accordance with its terms prior to Completion and shall deliver to the Purchaser prior to Completion a certified copy of the register of members of the Company which correctly records each holding of Shares following the operation and performance of Article 3.4 (Sale) of the Articles. 5.5 The Institutional Seller shall exercise any and all rights it might have as a holder of Shares (including any voting rights attached to its Shares) to the extent it is legally able to do so to ensure that Article 11 (Drag Along and Mandatory Transfer) of the Articles is operated and performed in accordance with its terms on or prior to Completion. 5.6 The Sellers shall procure that there is sent to each works council (or each applicable economic committee) representing the employees of the Group Companies in Germany a letter (in a form to be agreed between the Sellers and the Purchaser, each acting reasonably) informing such works council (or applicable economic committee) of the Transaction. 6 Clause 6 Schedule 6.1 At least three Business Days prior to the Completion Date, the Institutional Seller shall deliver to the Purchaser: (a) a schedule (the Clause 6 Schedule) setting out: (i) the amount of any Leakage; (ii) the Outstanding Management Loan Amount; (iii) the Disclosed Seller Transaction Costs; and (b) the Small Sellers’ SPA duly executed by all the Small Sellers and the Delayed Sellers.
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Sources: Share Purchase Agreement
PERIOD BEFORE COMPLETION. 5.1 Except as otherwise agreed with the Purchaser, and subject to clause 5.2, between the time of this Agreement and Completion each Seller shall exercise any and all rights it might have (including any voting rights attached to its Shares) to the extent it is legally able to do so to ensure that the business of each Group Company is carried out in accordance with the matters specified in schedule 2 (Pre-Completion Conduct of Group Companies).
5.2 Clause 5.1 shall not operate so as to restrict or prevent:
(a) the completion or performance of any obligations undertaken pursuant to any contract or arrangement entered into by any member of the Group prior to the date of this Agreement that has been disclosed in the Data Room;
(b) any matter contemplated in this Agreement or the other Transaction Documents;
(c) any matter undertaken at the written request of the Purchaser; or
(d) any matter required by law, regulation or any governmental or regulatory authority.
5.3 Each Seller shall, at the sole expense of the Purchaser exercise any and all rights it might have (including any voting rights attached to its Shares), to the extent it is legally able to do so, to ensure that each Group Company shall, save where unable to do so pursuant to any pre-existing confidentiality undertaking or pursuant to law or regulation:
(a) allow the Purchaser and its agents access to, and to take copies of, the books (including cash books) and records of each Group Company; and
(b) prepare for the introduction of the Purchaser’s normal working procedures in readiness for Completion in so far as is reasonable; and
(c) co-operate with the Purchaser’s requests (if any) to request that counterparties to the Group’s contractual arrangements provide consent for, or waive their rights in respect of, any change of control of the relevant Group Company, including:
(i) submitting the relevant written waiver or consent to the relevant counterparty promptly following a request from the Purchaser;
(ii) promptly notifying the Purchaser (and providing copies or, in the case of non-written communications, details) of any substantive communications with or from the relevant counterparty in respect of a waiver or consent;
(iii) following consultation with the Purchaser and with the Purchaser’s prior written consent, promptly providing such information and assistance as may be requested by any relevant counterparty in respect of a waiver or consent;
(iv) using its reasonable endeavours to allow persons nominated by the Purchaser to attend all meetings (and participate in all telephone or other conversations) with any relevant counterparty; and
(v) giving notice to the Purchaser of the grant of any waiver or consent by any relevant counterparty and delivering to the Purchaser a copy of each written waiver or consent duly executed by the relevant counterparty as soon as reasonably practicable following receipt of the same by any Seller or any Group Company.
5.4 The Institutional Seller shall exercise any and all rights it might have as a holder of Shares (including any voting rights attached to its Shares) to the extent it is legally able to do so to ensure that Article 3.4 (Sale) of the Articles is operated and performed in accordance with its terms prior to Completion and shall deliver to the Purchaser prior to Completion a certified copy of the register of members of the Company which correctly records each holding of Shares following the operation and performance of Article 3.4 (Sale) of the Articles.
5.5 The Institutional Seller shall exercise any and all rights it might have as a holder of Shares (including any voting rights attached to its Shares) to the extent it is legally able to do so to ensure that Article 11 (Drag Along and Mandatory Transfer) of the Articles is operated and performed in accordance with its terms on or prior to Completion.
5.6 The Sellers shall procure that there is sent to each works council (or each applicable economic committee) representing the employees of the Group Companies in Germany a letter (in a form to be agreed between the Sellers and the Purchaser, each acting reasonably) informing such works council (or applicable economic committee) of the Transaction. 6 Clause 6 Schedule
6.1 At least three Business Days prior to the Completion Date, the Institutional Seller shall deliver to the Purchaser:
(a) a schedule (the Clause 6 Schedule) setting out:
(i) the amount of any Leakage;
(ii) the Outstanding Management Loan Amount;
(iii) the Disclosed Seller Transaction Costs; and
(b) the Small Sellers’ SPA duly executed by all the Small Sellers and the Delayed Sellers.
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