PERIOD TO COMPLETION Sample Clauses

PERIOD TO COMPLETION. 5.1 Pending Completion, the Management Shareholders undertake to the Purchaser to procure (insofar as the Management Shareholders are able to do so) that: (i) the business of the Company; and (ii) the business of each other Target Company is conducted in accordance with applicable laws and in the ordinary and usual course and shall take all such steps as are reasonably required to protect and preserve the business and assets of each Target Company and to maintain that business as a going concern and with a view to profit. 5.2 Without prejudice to the generality of clause 5.1, the Management Shareholders undertake to the Purchaser to procure (insofar as the Management Shareholders are reasonably able to do so) that the Company shall, and shall procure that each Target Company shall, not effect or undertake any matter set out in Schedule 2 in the period from the date of this Agreement to the Completion Date without the prior approval of the Purchaser (such approval not to be unreasonably withheld or delayed). 5.3 The Seller shall not, if approval for such matter is requested, approve any proposed action of a Management Shareholder of which it has prior notice if it is aware that such action would breach either of clauses 5.1 or 5.2. 5.4 The Seller shall procure that any director of any Target Company that is an officer, employee or director of the Seller, Terra Firma or any Related Person of either of the foregoing, or any director that is a nominee company of either the Seller, Terra Firma or any Related Person of either of the foregoing, shall not, subject to that director complying with his or her fiduciary duties and all applicable law and regulatory requirements, approve any proposed action of a Management Shareholder of which it has prior notice if the relevant director is aware that such action would breach either of clauses 5.1 or 5.2. 5.5 A Management Shareholder shall notify the Purchaser as soon as reasonably practicable if he becomes aware of any matter, fact or circumstance which constitutes a breach of either of clauses 5.1 or 5.2 prior to Completion. 5.6 On the Completion Statement Date, the Seller shall provide to the Purchaser the Completion Statement (on the basis that its contents are calculations made in good faith and without liability save in respect of fraud). 5.7 On the date of this Agreement, each Management Shareholder shall deliver to the Seller’s Solicitors: (a) a stock transfer form in the name of the Company in respect of all the SubCo Shares held by that Management Shareholder, duly executed by that Management Shareholder but undated; (b) a share certificate relating to the SubCo Shares held by that Management Shareholder or an indemnity in respect of any lost certificates; (c) a power of attorney executed by that Management Shareholder to enable the Company to exercise all voting and other rights attached to the SubCo Shares held by that Management Shareholder from Completion pending registration of the transfer thereof; (d) a counterpart of the Management Shareholder Waiver Letter signed by each Management Shareholder, and each Management Shareholder irrevocably and unconditionally authorises the Seller’s Solicitors to date such documents on the Completion Date and to deliver such documents to the Purchaser at Completion. 5.8 On the date of this Agreement, the Management Shareholders shall deliver to the Purchaser: (a) a counterpart of the Disclosure Letter signed by or on behalf of each Management Shareholder, and the Purchaser shall deliver to the Management Shareholders a countersigned copy of the Disclosure Letter duly signed by the Purchaser; (b) a counterpart of the Management Warranty Deed and the Management Tax Covenant signed by or on behalf of each Management Shareholder, and the Purchaser shall deliver to the Management Shareholders a countersigned copy of the Management Warranty Deed and the Management Tax Covenant duly signed by the Purchaser; and (c) a counterpart of the Management Escrow Agreement signed by each Management Shareholder. 5.9 On the date of this Agreement: (a) the Seller shall deliver to the Purchaser, a certified copy of the minutes of a meeting of the directors of the Seller resolving that the Seller should enter into this Agreement; (b) the Purchaser shall deliver to the Seller, a certified copy of the minutes of a meeting of the directors of the Purchaser resolving that the Purchaser should enter into this Agreement; (c) the Purchaser Guarantor shall deliver to the Seller a certified copy of the minutes of a meeting of the directors of the Purchaser Guarantor approving the execution by the Purchaser Guarantor of this Agreement; and (d) the Purchaser shall deliver to the Management Shareholders a counterpart of the Management Escrow Agreement duly signed by the Purchaser. 5.10 Subject to applicable law, prior to the date of Completion, the Management Shareholders shall, at the sole cost of the Purchaser, use reasonable efforts to, and shall use reasonable efforts to cause each Target Company and each of their respective directors, officers, employees, agents and advisers (including legal and accounting advisers provided that all advisers’ costs shall be for the sole account of and payable by the Purchaser) to use reasonable efforts to, cooperate with the Purchaser (including (a) (i) providing any information, documents, agreements, consents, comfort letters, certifications and representations reasonably requested by the Purchaser, its legal advisors and independent accountants, its financing sources or investment banks or their legal advisers (which, for the avoidance of doubt, shall include all documentation and other information required under applicable “know your customer” and anti-money laundering rules and regulations), and (ii) participating in a reasonable number of meetings and conference calls with prospective lenders and investors, road shows, due diligence sessions, drafting sessions and sessions with rating agencies and preparation of the materials related to such meetings, sessions, conference calls and road shows, and (iii) assisting in the preparation of a customary confidential information memorandum or other offering document, in each case, in connection with the syndication of the debt, the financing of the transactions contemplated by this Agreement, including any public or private offering or placement of debt or equity securities (which, for the avoidance of doubt, may include an offering of secured high-yield debt securities under Rule 144A of the U.S. Securities Act of 1933, as amended), used to finance the consummation of the transactions contemplated by this Agreement, and (b) enabling the satisfaction and discharge of all financial indebtedness of the Target Companies and all Encumbrances which have been granted by any Target Company (including, without limitation, the revolving credit facility agreement dated 24 May 2011 (the “RCF”), the indenture relating to the Bonds, and the release of security interests in the collateral securing the Bonds and/or the RCF, in each case on the date of Completion PROVIDED that it is permissible to give notice to repay or redeem on the basis that notice can be given on a conditional basis, the condition being Completion occurring and that there is sufficient time prior to Completion and following satisfaction of the Merger Condition to give such notice(s) (including, for the avoidance of doubt, by delivering any notices required to be delivered in connection with the prepayment, repayment or redemption of any such financial indebtedness in accordance with the relevant documentation or one or more conditional notices of redemption to holders of the Bonds in accordance with the indenture governing the Bonds)) in connection with the satisfaction and discharge of all financial indebtedness of the Target Companies). For the avoidance of doubt, the parties acknowledge and agree that any delay or failure on the part of the Management Shareholders in performing their obligations under this clause 5.10 shall not defer or entitle the Purchaser to defer Completion or otherwise excuse the Purchaser to comply with its obligations to proceed to Completion. The parties further acknowledge and agree that, to the extent that the provisions of this clause 5.10 require the Management Shareholders to procure that the financial statements of the Target Group will be converted from UK GAAP and restated in accordance with US GAAP, the costs and expenses of such conversion and restatement (including any costs incurred by the Target Group in engaging the auditors of the Target Group to undertake such conversion and restatement) will be borne directly by the Purchaser. 5.11 The parties acknowledge and agree that as the Shareholder Loan Amount will as at Completion exceed the Net Equity Value, the Seller intends to take certain steps after the date of this Agreement and on or prior to Completion to adjust the Shareholder Loan Amount to ensure that, on Completion, the Shareholder Loan Amount is equal to the Net Equity Value less £1.00 (such adjusted amount, the “Adjusted Shareholder Loan Amount”), and the Purchaser agrees to all such steps (including waiver) being taken provided that the taking of such steps does not give rise to any detriment to the Purchaser or to the Target Group. The Seller shall provide the Purchaser with reasonable notice of all such steps proposed to be taken and shall not take any such steps without the consent of the Purchaser (such consent not to be unreasonably withheld or delayed). 5.12 To the extent that interest has accrued but has not yet been paid on the Shareholder Loan or as the case may be the Shareholder Loan Notes, and prior to the Completion Date, none of the following have occurred: (a) the Company and/or SubCo (as relevant) have been issued with a valid direction from HMRC to pay interest on the Shareholder Loan or as the case may be the Shareholder Loan Notes free from withholding or deduction of tax; or (b) in the case of the Shareholder Loan Notes, the Shareholder Loan Notes have been listed on the Channel Islands Securities Exchange; or (c) some other exemption from withholding or deduction of UK income tax applies to the interest payable on the Shareholder Loan or as the case may be the Shareholder Loan Notes, the Seller and the Management Shareholders shall or shall procure that necessary steps are taken to permit the Company and/or SubCo (as the case may be) to make payments in respect of such interest without any withholding or deduction of tax. 5.13 In the case of clause 5.12(c) or where steps are otherwise taken under clause 5.12 that are not within clause 5.12(a) or (b), no steps shall be taken by the Seller, the Management Shareholders or the Company without obtaining the consent of the Purchaser, such consent not to be unreasonably withheld or delayed. 5.14 It is the expectation of the parties that (i) if one of the matters referred to in clauses 5.12(a) or (b) has occurred; or (ii) the Purchaser’s consent is given in accordance with clause 5.13 to a particular course of action and the action as consented to is implemented accordingly, then payment of interest on the Shareholder Loan and/or Shareholder Loan Notes will not be subject to withholding tax and the Purchaser shall be obliged to procure the making of the payment referred to in clause 6.2(b) without withholding or deduction of tax. 5.15 The Purchaser shall: (a) take any action reasonably requested by the Seller and/or the Management Shareholders; and/or (b) give the Seller and/or the Management Shareholders such reasonable assistance, as may be required for the Seller and the Management Shareholders to take any steps in accordance with clause 5.12 provided that, for the avoidance of doubt, all out-of-pocket costs and expenses incurred by any Target Company and (subject to the prior consent of the Seller, such consent not to be unreasonably withheld or delayed) all reasonable and properly incurred out of pocket costs and expenses incurred by the Purchaser in respect of any step taken in accordance with clause 5.12 shall be for the sole account of the Seller. Without prejudice to the foregoing, any such costs and expenses incurred by the Purchaser shall upon production of a valid invoice not later than five (5) Business Days prior to the Completion Date be set off against the sum payable to the Seller at Completion, and, for the avoidance of doubt, any such costs and expenses incurred by the Target Companies shall be Transaction Fees. 5.16 Notwithstanding any action taken by the Seller under clause 5.12, if the Company and/or SubCo is required by law to make any withholdings or deductions in respect of the Shareholder Loan or the Shareholder Loan Notes (whether by reason of the failure to receive a valid direction from HMRC, any change in law prior to Completion or otherwise) the Company and/or SubCo shall be permitted to make such deduction or withholding as is required and shall not be required to make any additional payments in respect of the Shareholder Loan or the Shareholder Loan Notes, notwithstanding any provision to the contrary contained within the Shareholder Loan or the Shareholder Loan Notes or otherwise agreed between the parties to such instruments. 5.17 The parties acknowledge and agree that if there is a change of law relating to withholding tax in the period prior to Completion, the Seller may be required to take certain steps in accordance with provisions of clauses 5.12(c) and 5.13 provided however that such steps shall be required to be taken prior to the Completion Date and Completion shall not be deferred by reason of any such steps required or proposed to be taken. 5.18 If acting reasonably the Seller and the Purchaser determine that the steps taken under clauses 5.12 to 5.17 will give rise to detriment to the Purchaser then the Seller shall be entitled to set-off against any payment due from the Purchaser to the Seller under this Agreement an amount equal to the net present value of the cost of the reasonably foreseeable detriment, such value to be determined and agreed by the Seller and the Purchaser acting reasonably and in good faith. 5.19 The Management Shareholders and the Company undertake to the Seller and the Purchaser to procure that each member of the Target Group will comply with its obligations to provide information to, and consult with (as the case may be): (i) the employees of the Target Group; (ii) any relevant employee body of the employees of the Target Group; or (iii) the appropriate representatives of the employees of the Target Group (including, without limitation, the European Works Council), concerning the Proposed Transaction and the potential impact of the Proposed Transaction on the employees of the Target Group. 5.20 In order to assist each member of the Target Group to comply with its obligations in clause 5.19, as soon as reasonably practicable following a request from the Management Shareholders or the Company (such request being reasonable in the context of the obligations described in clause 5.19), the Purchaser shall provide the relevant member of the Target Group with such details of its proposals, if any, that may affect the employees of that Target Company following Completion. The parties shall update the Seller from time to time of progress in relation to the consultation. 5.21 In furtherance of clauses 5.19 and 5.20, and subject to compliance by the Purchaser with its obligations under clause 5.20, the Management Shareholders will: (a) promptly notify the Purchaser of any material communication received from any relevant employee body of the employees of the Target Group or the appropriate representatives of the employees of the Target Group (including, without limitation, the European Works Council); and (b) provide the Purchaser with details of the Target Group’s proposed strategy for complying with the obligations described in clause 5.19, including providing the Purchaser with copies of any communications intended to be disseminated as part of information and consultation at such time as will to the extent practicable allow the Purchaser and the Purchaser’s legal advisers a reasonable opportunity to provide comments on such communications and will keep the Purchaser informed of all material devel

Appears in 2 contracts

Sources: Share Purchase Agreement, Share Purchase Agreement (Amc Entertainment Holdings, Inc.)

PERIOD TO COMPLETION. ~~5.1 Pending Completion,~~ 4.1 The Seller undertakes with the ~~Management Shareholders undertake~~ Buyer to the Purchaser to procure (insofar as the Management Shareholders are able to do so) that: (i) the business of the Company; and (ii) the business of each other Target Company is conducted in accordance with applicable laws and in the ordinary and usual course and shall take all such steps as are reasonably required to protect and preserve the business and assets of each Target Company and to maintain that business as a going concern and with a view to profit. 5.2 Without prejudice to the generality of clause 5.1, the Management Shareholders undertake to the Purchaser to procure (insofar as the Management Shareholders are reasonably able to do so) that the Company shall, and shall procure that each ~~Target~~ Group Company shall, not effect or undertake any matter set out in Schedule 2 in the period from the date of this Agreement to the Completion Date without the prior approval of the Purchaser (such approval not to be unreasonably withheld or delayed). 5.3 The Seller shall not, if approval for such matter is requested, approve any proposed action of a Management Shareholder of which it has prior notice if it is aware that such action would breach either of clauses 5.1 or 5.2. 5.4 The Seller shall procure that any director of any Target Company that is an officer, employee or director of the Seller, Terra Firma or any Related Person of either of the foregoing, or any director that is a nominee company of either the Seller, Terra Firma or any Related Person of either of the foregoing, shall not, subject to that director complying with his or her fiduciary duties and all applicable law and regulatory requirements, approve any proposed action of a Management Shareholder of which it has prior notice if the relevant director is aware that such action would breach either of clauses 5.1 or 5.2. 5.5 A Management Shareholder shall notify the Purchaser as soon as reasonably practicable if he becomes aware of any matter, fact or circumstance which constitutes a breach of either of clauses 5.1 or 5.2 prior to Completion. 5.6 On the Completion Statement Date, the Seller shall provide to the Purchaser the Completion Statement (on the basis that its contents are calculations made in good faith and without liability save in respect of fraud). 5.7 On the date of this Agreement, each Management Shareholder shall deliver to the Seller’s Solicitors: (a) operate its business and activities in their usual course and in such a ~~stock transfer form~~ manner between the date of this agreement and the Completion Date as to ensure that no act or event shall occur during that period which would be reasonably expected to result in ~~the name~~ a breach of the ~~Company in respect of all the SubCo Shares held by that Management Shareholder, duly executed by that Management Shareholder but undated;~~Warranties upon their repetition immediately prior to Completion; and (b) ~~a share certificate relating~~ comply with each of the undertakings set out in schedule 5. 4.2 Pending Completion, the Buyer and any person authorised by it shall be given reasonable access to the ~~SubCo Shares held by that Management Shareholder~~ books and records of each Group Company and the directors and employees of each Group Company shall be instructed to give all such information and explanations as the Buyer or ~~an indemnity in respect of~~ any lost certificates; (c) a power of attorney executed by that Management Shareholder to enable the Company to exercise all voting and other rights attached to the SubCo Shares held by that Management Shareholder from Completion pending registration of the transfer thereof; (d) a counterpart of the Management Shareholder Waiver Letter signed by each Management Shareholder, and each Management Shareholder irrevocably and unconditionally authorises the Seller’s Solicitors to date such ~~documents~~ person acting on the ~~Completion Date and to deliver such documents to the Purchaser at Completion~~Buyer’s behalf may reasonably request. 5.8 On the date of this Agreement, the Management Shareholders shall deliver to the Purchaser: (a) a counterpart of the Disclosure Letter signed by or on behalf of each Management Shareholder, and the Purchaser shall deliver to the Management Shareholders a countersigned copy of the Disclosure Letter duly signed by the Purchaser; (b) a counterpart of the Management Warranty Deed and the Management Tax Covenant signed by or on behalf of each Management Shareholder, and the Purchaser shall deliver to the Management Shareholders a countersigned copy of the Management Warranty Deed and the Management Tax Covenant duly signed by the Purchaser; and (c) a counterpart of the Management Escrow Agreement signed by each Management Shareholder. 5.9 On the date of this Agreement4.3 If: (a) the Seller ~~shall deliver to the Purchaser, a certified copy~~ is in breach of any of the minutes of a meeting of the directors of the Seller resolving that the Seller should enter into this Agreement; (b) the Purchaser shall deliver to the Seller, a certified copy of the minutes of a meeting of the directors of the Purchaser resolving that the Purchaser should enter into this Agreement; (c) the Purchaser Guarantor shall deliver to the Seller a certified copy of the minutes of a meeting of the directors of the Purchaser Guarantor approving the execution by the Purchaser Guarantor of this Agreement; and (d) the Purchaser shall deliver to the Management Shareholders a counterpart of the Management Escrow Agreement duly signed by the Purchaser. 5.10 Subject to applicable law, prior to the date of Completion, the Management Shareholders shall, at the sole cost of the Purchaser, use reasonable efforts to, and shall use reasonable efforts to cause each Target Company and each of their respective directors, officers, employees, agents and advisers (including legal and accounting advisers provided that all advisers’ costs shall be for the sole account of and payable by the Purchaser) to use reasonable efforts to, cooperate with the Purchaser (including (a) (i) providing any information, documents, agreements, consents, comfort letters, certifications and representations reasonably requested by the Purchaser, its legal advisors and independent accountants, its financing sources or investment banks or their legal advisers (which, for the avoidance of doubt, shall include all documentation and other information required under applicable “know your customer” and anti-money laundering rules and regulations), and (ii) participating in a reasonable number of meetings and conference calls with prospective lenders and investors, road shows, due diligence sessions, drafting sessions and sessions with rating agencies and preparation of the materials related to such meetings, sessions, conference calls and road shows, and (iii) assisting in the preparation of a customary confidential information memorandum or other offering document, in each case, in connection with the syndication of the debt, the financing of the transactions contemplated by this Agreement, including any public or private offering or placement of debt or equity securities (which, for the avoidance of doubt, may include an offering of secured high-yield debt securities under Rule 144A of the U.S. Securities Act of 1933, as amended), used to finance the consummation of the transactions contemplated by this Agreement, and (b) enabling the satisfaction and discharge of all financial indebtedness of the Target Companies and all Encumbrances which have been granted by any Target Company (including, without limitation, the revolving credit facility agreement dated 24 May 2011 (the “RCF”), the indenture relating to the Bonds, and the release of security interests in the collateral securing the Bonds and/or the RCF, in each case on the date of Completion PROVIDED that it is permissible to give notice to repay or redeem on the basis that notice can be given on a conditional basis, the condition being Completion occurring and that there is sufficient time prior to Completion and following satisfaction of the Merger Condition to give such notice(s) (including, for the avoidance of doubt, by delivering any notices required to be delivered in connection with the prepayment, repayment or redemption of any such financial indebtedness in accordance with the relevant documentation or one or more conditional notices of redemption to holders of the Bonds in accordance with the indenture governing the Bonds)) in connection with the satisfaction and discharge of all financial indebtedness of the Target Companies). For the avoidance of doubt, the parties acknowledge and agree that any delay or failure on the part of the Management Shareholders in performing their obligations under this clause 5.10 shall not defer or entitle the Purchaser to defer Completion or otherwise excuse the Purchaser to comply with its obligations to proceed to Completion. The parties further acknowledge and agree that, to the extent that the provisions of this clause 5.10 require the Management Shareholders to procure that the financial statements of the Target Group will be converted from UK GAAP and restated in accordance with US GAAP, the costs and expenses of such conversion and restatement (including any costs incurred by the Target Group in engaging the auditors of the Target Group to undertake such conversion and restatement) will be borne directly by the Purchaser. 5.11 The parties acknowledge and agree that as the Shareholder Loan Amount will as at Completion exceed the Net Equity Value, the Seller intends to take certain steps after the date of this Agreement and on or prior to Completion to adjust the Shareholder Loan Amount to ensure that, on Completion, the Shareholder Loan Amount is equal to the Net Equity Value less £1.00 (such adjusted amount, the “Adjusted Shareholder Loan Amount”), and the Purchaser agrees to all such steps (including waiver) being taken provided that the taking of such steps does not give rise to any detriment to the Purchaser or to the Target Group. The Seller shall provide the Purchaser with reasonable notice of all such steps proposed to be taken and shall not take any such steps without the consent of the Purchaser (such consent not to be unreasonably withheld or delayed). 5.12 To the extent that interest has accrued but has not yet been paid on the Shareholder Loan or as the case may be the Shareholder Loan Notes, and prior to the Completion Date, none of the following have occurred: (a) the Company and/or SubCo (as relevant) have been issued with a valid direction from HMRC to pay interest on the Shareholder Loan or as the case may be the Shareholder Loan Notes free from withholding or deduction of taxWarranties; or (b) there shall occur any act or event which upon Completion would or might reasonably be expected to result in ~~the case~~ a breach of any of the ~~Shareholder Loan Notes,~~ Warranties were they repeated immediately prior to Completion by reference to the ~~Shareholder Loan Notes have been listed on the Channel Islands Securities Exchange~~facts and circumstances then existing; or (c) ~~some other exemption from withholding~~ there is any breach or ~~deduction~~ non-fulfilment by the Seller of ~~UK income tax applies~~ its obligations hereunder; or (d) between the date of this agreement and Completion there is any material adverse change in the business, operations, assets, liabilities or financial position of the Group taken as a whole (excluding world, regional or industry events that are not peculiar to the ~~interest payable on the Shareholder Loan~~ Group or ~~as the~~ any of its members), which in any such case ~~may be the Shareholder Loan Notes~~is incapable of remedy or, if capable of remedy, is not remedied by the Seller by the Completion Date or (if earlier) within seven days after notice thereof from the Buyer requiring the same to be remedied, then in any such case the Buyer shall be entitled (in addition and without prejudice to any other rights or remedies it may have against the ~~Management Shareholders shall~~ Seller under this agreement or ~~shall procure that necessary steps are taken to permit the Company and/or SubCo (as the case may be~~otherwise) to ~~make payments~~ elect by notice in ~~respect~~ writing to the Seller not to complete the purchase of ~~such interest without any withholding or deduction~~ the Shares, in which event clause 4.5 shall apply and this agreement shall automatically terminate save that the rights and liabilities of ~~tax~~the Parties which have accrued prior to termination shall continue to subsist, including those under this clause 4.3 and clauses 11, 12, 14 and 17 to 25 (inclusive). ~~5.13 In~~ 4.4 The Seller undertakes to the Buyer that it will disclose forthwith in writing to the Buyer any matter or thing which may arise or become known to it after the date hereof which is inconsistent with any of the Warranties were they to be repeated at Completion by reference to the facts and circumstances then subsisting. 4.5 If the Buyer elects not to complete the purchase of the Shares as provided in clause 4.3 (in the case of sub-clause ~~5.12(c~~(d) ~~or where steps are otherwise taken under~~ of clause ~~5.12 that are not within clause 5.12(a) or (b)~~4.3, ~~no steps shall be taken by the Seller, the Management Shareholders or the Company without obtaining the consent~~ as a result of the Purchaser, such consent not to be unreasonably withheld or delayed. 5.14 It is the expectation of the parties that (i) if one of the matters referred to in clauses 5.12(a) or (b) has occurred; or (ii) the Purchaser’s consent is given in accordance with clause 5.13 to a particular course of action and the action as consented to is implemented accordingly, then payment of interest on the Shareholder Loan and/or Shareholder Loan Notes will not be subject to withholding tax and the Purchaser shall be obliged to procure the making of the payment referred to in clause 6.2(b) without withholding or deduction of tax. 5.15 The Purchaser shall: (a) take any action reasonably requested breach by the Seller ~~and/or~~ of any of its obligations under this agreement), then (in addition and without prejudice to any other rights or remedies the ~~Management Shareholders; and/or (b~~Buyer may have against the Seller) ~~give~~ the Seller ~~and/or~~ shall indemnify the ~~Management Shareholders such reasonable assistance~~Buyer against all costs, ~~as may be required for the Seller and the Management Shareholders to take any steps in accordance with clause 5.12 provided that, for the avoidance of doubt, all out-of-pocket costs~~ charges and expenses incurred by ~~any Target Company~~ it in connection with the proposed sale and ~~(subject to the prior consent~~ purchase of the Seller, such consent not to be unreasonably withheld or delayed) all reasonable and properly incurred out of pocket costs and expenses incurred by the Purchaser in respect of any step taken in accordance with clause 5.12 shall be for the sole account of the Seller. Without prejudice to the foregoing, any such costs and expenses incurred by the Purchaser shall upon production of a valid invoice not later than Shares. 4.6 At least five ~~(5)~~ Business Days prior to the ~~Completion Date be set off against the sum payable to the Seller at Completion, and,~~ date fixed for the avoidance of doubt, any such costs and expenses incurred by the Target Companies shall be Transaction Fees. 5.16 Notwithstanding any action taken by the Seller under clause 5.12, if the Company and/or SubCo is required by law to make any withholdings or deductions in respect of the Shareholder Loan or the Shareholder Loan Notes (whether by reason of the failure to receive a valid direction from HMRC, any change in law prior to Completion or otherwise) the Company and/or SubCo shall be permitted to make such deduction or withholding as is required and shall not be required to make any additional payments in respect of the Shareholder Loan or the Shareholder Loan Notes, notwithstanding any provision to the contrary contained within the Shareholder Loan or the Shareholder Loan Notes or otherwise agreed between the parties to such instruments. 5.17 The parties acknowledge and agree that if there is a change of law relating to withholding tax in the period prior to Completion, the Seller may be required to take certain steps in accordance with provisions of clauses 5.12(c) and 5.13 provided however that such steps shall be required to be taken prior to the Completion Date and Completion shall not be deferred by reason of any such steps required or proposed to be taken. 5.18 If acting reasonably the Seller and the Purchaser determine that the steps taken under clauses 5.12 to 5.17 will give rise to detriment to the Purchaser then the Seller shall be entitled to set-off against any payment due from the Purchaser to the Seller under this Agreement an amount equal to the net present value of the cost of the reasonably foreseeable detrimentSeller, ~~such value to be determined and agreed by the Seller and the Purchaser~~ acting reasonably and in good ~~faith. 5.19 The Management Shareholders and the Company undertake~~ faith (but otherwise without liability), shall provide to the ~~Seller and the Purchaser to procure that each member~~ Buyer a written estimate, together with reasonable supporting documentation, of the ~~Target Group will comply with its obligations to provide information to,~~ Debt and ~~consult with (~~Cash as at the case may be): (i) the employees of the Target Group; (ii) any relevant employee body of the employees of the Target Group; or (iii) the appropriate representatives of the employees of the Target Group (including, without limitation, the European Works Council), concerning the Proposed Transaction and the potential impact of the Proposed Transaction on the employees of the Target Groupdate fixed for Completion. 5.20 In order to assist each member of the Target Group to comply with its obligations in clause 5.19, as soon as reasonably practicable following a request from the Management Shareholders or the Company (such request being reasonable in the context of the obligations described in clause 5.19), the Purchaser shall provide the relevant member of the Target Group with such details of its proposals, if any, that may affect the employees of that Target Company following Completion. The parties shall update the Seller from time to time of progress in relation to the consultation. 5.21 In furtherance of clauses 5.19 and 5.20, and subject to compliance by the Purchaser with its obligations under clause 5.20, the Management Shareholders will: (a) promptly notify the Purchaser of any material communication received from any relevant employee body of the employees of the Target Group or the appropriate representatives of the employees of the Target Group (including, without limitation, the European Works Council); and (b) provide the Purchaser with details of the Target Group’s proposed strategy for complying with the obligations described in clause 5.19, including providing the Purchaser with copies of any communications intended to be disseminated as part of information and consultation at such time as will to the extent practicable allow the Purchaser and the Purchaser’s legal advisers a reasonable opportunity to provide comments on such communications and will keep the Purchaser informed of all material devel

Appears in 2 contracts

Sources: Share Purchase Agreement, Share Purchase Agreement (Willbros Group, Inc.\NEW\)

PERIOD TO COMPLETION. ~~5.1~~ 4.1 The Principal Management Employees and the Company undertake with the Purchaser to procure that each Group Company shall operate its business and activities in their usual course, and comply with each of the undertakings set out in schedule 7. 4.2 Pending Completion, the Principal Management ~~Shareholders undertake~~ Employees will use all reasonable endeavours to procure that (a) the Purchaser and any person authorised by it shall be given full access to the Properties and to all the books and records of each Group Company (including without limitation, all books and records and other documentation or information whatsoever regarding each Group Company's Intellectual Property, subject to obtaining consents of third parties where appropriate, as well as all books and records and other documentation or information whatsoever regarding any other company's Intellectual Property which is in the possession of, or under the control of, any Group Company, subject to obtaining consents of third parties where appropriate), provided that prior to Completion, the Principal Management Employees shall not be obliged to disclose any board minutes or other documents containing information relating to proposals received from third parties in connection with a sale of the Shares or any substantial part of the business or assets of the Group, and (b) the directors and employees and auditors and other advisers of each Group Company shall be instructed to give promptly all such information and explanations as the Purchaser or any such person may reasonably request. 4.3 If, prior to Completion:- (a) any of the Principal Management Employees is in breach of any of the Warranties or any of the Investors is in breach of the warranties set forth in clause 6.3 hereof; or (b) there shall occur any act or event which upon Completion would or might reasonably be expected to result in a breach of any of the Warranties or any of the warranties set forth in clause 6.3 were they repeated immediately prior to Completion; or (c) there is any breach or non-fulfilment by any of the Vendors of their undertakings or obligations hereunder which in any such case is, in the opinion of the Purchaser, incapable of remedy or, if capable of remedy, is not remedied by such Vendor by the Completion Date or (if earlier) within seven days after notice thereof from the Purchaser requiring the same to be remedied; then in any such case the Purchaser shall be entitled to elect by notice in writing to the Vendors not to complete the purchase of the Shares, in which event this agreement shall automatically terminate save that the rights and liabilities of the parties which have accrued prior to termination under clauses 4.6 to 4.12 (inclusive), 9, 10 and 13 to 20 (inclusive) shall continue to subsist. Without restricting the rights of the Purchaser or the ability of the Purchaser to enforce any other legal rights or remedies available to it, the Vendors expressly acknowledge that the Purchaser shall be entitled to receive specific performance of the terms of this agreement upon the fulfilment or waiver of the Conditions. 4.4 Each of the Principal Management Employees and the Company undertakes to the Purchaser that it will disclose forthwith in writing to ~~procure (insofar~~ the Purchaser any matter or thing which becomes known to it after the date hereof which is, in the reasonable opinion of the Principal Management Employees, inconsistent with any of the Warranties or which is material to the business of any Group Company. Any such disclosures made prior to Completion shall be deemed to be valid and proper disclosures against the Warranties and shall have the effect of qualifying the Warranties. 4.5 Promptly following the date hereof, the Board of Directors of the Company shall adopt a resolution approving the terms of this agreement and duly authorising the Company to perform its obligations under this agreement and to take such further actions as are reasonably necessary to consummate the ~~Management Shareholders are able to do so) that:~~ transactions contemplated by this agreement. 4.6 Each of the Investors undertakes and agrees on their own behalf only that between the date of this agreement and the earlier of:- (i) ~~the business of the Company; and~~ Completion; (ii) the business of each other Target Company is conducted in accordance with applicable laws and in the ordinary and usual course and shall take all such steps as are reasonably required to protect and preserve the business and assets of each Target Company and to maintain that business as a going concern and with a view to profit. 5.2 Without prejudice to the generality of clause 5.1, the Management Shareholders undertake to the Purchaser to procure (insofar as the Management Shareholders are reasonably able to do so) that the Company shall, and shall procure that each Target Company shall, not effect or undertake any matter set out in Schedule 2 in the period from the date termination of this ~~Agreement to the Completion Date without the prior approval of the Purchaser~~ agreement; and (~~such approval not to be unreasonably withheld or delayed). 5.3 The Seller shall not, if approval for such matter is requested, approve any proposed action of a Management Shareholder of which~~ iii) 3/rd/ September 1999 it has prior notice if it is aware that such action would breach either of clauses 5.1 or 5.2. 5.4 The Seller shall procure that any director of any Target Company that is an officer, employee or director of the Seller, Terra Firma or any Related Person of either of the foregoing, or any director that is a nominee company of either the Seller, Terra Firma or any Related Person of either of the foregoing, shall not, subject to that director complying with his or her fiduciary duties and all applicable law and regulatory requirements, approve any proposed action of a Management Shareholder of which it has prior notice if the relevant director is aware that such action would breach either of clauses 5.1 or 5.2. 5.5 A Management Shareholder shall notify the Purchaser as soon as reasonably practicable if he becomes aware of any matter, fact or circumstance which constitutes a breach of either of clauses 5.1 or 5.2 prior to Completion. 5.6 On the Completion Statement Date, the Seller shall provide to the Purchaser the Completion Statement (on the basis that its contents are calculations made in good faith and without liability save in respect of fraud). 5.7 On the date of this Agreement, each Management Shareholder shall deliver to the Seller’s Solicitors:will not:- (a) ~~a stock transfer form in~~ solicit, initiate or accept any offer from any person relating to the ~~name~~ acquisition or purchase of all or any of the ~~Company in respect of all the SubCo~~ Shares ~~held~~ owned by that ~~Management Shareholder, duly executed by that Management Shareholder but undated~~Investor; (b) participate in any negotiations with any Person (other than the Purchaser, its officers and employees and advisors) in connection with a ~~share certificate relating to~~ sale of the ~~SubCo~~ Shares held by that Management Shareholder or an indemnity in respect of any lost certificates; (c) a power of attorney executed by that Management Shareholder to enable the Company to exercise all voting and other rights attached to the SubCo Shares held by that Management Shareholder from Completion pending registration of the transfer thereof; (d) a counterpart of the Management Shareholder Waiver Letter signed by each Management Shareholder, and each Management Shareholder irrevocably and unconditionally authorises the Seller’s Solicitors to date such documents on the Completion Date and to deliver such documents to the Purchaser at Completion. 5.8 On the date of this Agreement, the Management Shareholders shall deliver to the Purchaser: (a) a counterpart of the Disclosure Letter signed by or on behalf of each Management Shareholder, and the Purchaser shall deliver to the Management Shareholders a countersigned copy of the Disclosure Letter duly signed by the Purchaser; (b) a counterpart of the Management Warranty Deed and the Management Tax Covenant signed by or on behalf of each Management Shareholder, and the Purchaser shall deliver to the Management Shareholders a countersigned copy of the Management Warranty Deed and the Management Tax Covenant duly signed by the PurchaserInvestor; and (c) ~~a counterpart of the Management Escrow Agreement signed by each Management Shareholder. 5.9 On the date of this Agreement: (a) the Seller shall deliver~~ take any affirmative action to ~~the Purchaser, a certified copy of the minutes of a meeting of~~ require the directors of the ~~Seller resolving that~~ Company to bring about a sale by the ~~Seller should enter into~~ Company of all or substantially all of its assets and undertaking (such sale being referred to in this ~~Agreement;~~clause 4 as an "Asset Sale"). 4.7 Each Investor shall immediately (a) cease any existing discussions, conversations and negotiations to which they are a party with respect to any proposed sale or disposal of any of the Shares or an Asset Sale; and (b) ~~the Purchaser shall deliver to the Seller, a certified copy~~ each of the ~~minutes~~ Investors shall instruct their own respective advisors to terminate all such existing discussions, conversations and negotiations to which they are a party with respect to any proposed sale or disposal of ~~a meeting~~ any of the ~~directors~~ Shares or an Asset Sale. 4.8 If following a breach of any of the ~~Purchaser resolving that the Purchaser should enter into~~ provisions of clauses 4.6 or 4.7 by any Investor (in this ~~Agreement; (c) the Purchaser Guarantor shall deliver to the Seller~~ clause a certified copy of the minutes of a meeting of the directors of the Purchaser Guarantor approving the execution by the Purchaser Guarantor of this Agreement; and (d) the Purchaser shall deliver to the Management Shareholders a counterpart of the Management Escrow Agreement duly signed by the Purchaser. 5.10 Subject to applicable law, prior to the date of Completion, the Management Shareholders shall, at the sole cost of the Purchaser, use reasonable efforts to, and shall use reasonable efforts to cause each Target Company and each of their respective directors, officers, employees, agents and advisers (including legal and accounting advisers provided that all advisers’ costs shall be for the sole account of and payable by the Purchaser) to use reasonable efforts to, cooperate with the Purchaser (including (a"Breaching Investor") (i) ~~providing~~ a sale of any ~~information, documents, agreements, consents, comfort letters, certifications and representations reasonably requested~~ of the Shares owned by ~~the Purchaser, its legal advisors and independent accountants, its financing sources~~ that Investor; or investment banks or their legal advisers (which, for the avoidance of doubt, shall include all documentation and other information required under applicable “know your customer” and anti-money laundering rules and regulations), and (ii) ~~participating~~ an Asset Sale, occurs, in ~~a reasonable number of meetings and conference calls with prospective lenders and investors~~either case, ~~road shows~~prior to 3rd June 2000, ~~due diligence sessions, drafting sessions and sessions with rating agencies and preparation~~ then the Purchaser shall have the right to either (i) require all of the ~~materials related~~ Breaching Investors to ~~such meetings, sessions, conference calls and road shows, and (iii) assisting~~ pay the Purchaser in ~~the preparation of a customary confidential information memorandum or other offering document, in each case, in connection with the syndication~~ ------ complete satisfaction of the ~~debt~~Breaching Investor's liability under clause 4.6 or 4.7 an aggregate sum of $2.5 million, liability for such payment to be divided equally between each Breaching Investor, or (ii) claim damages -- against the ~~financing~~ Breaching Investor on any basis available at law to the Purchaser for such Investor's breach of ~~the transactions contemplated by this Agreement, including any public~~ clause 4.6 or private offering or placement of debt or equity securities (which, for the avoidance of doubt, may include an offering of secured high-yield debt securities under Rule 144A of the U.S. Securities Act of 1933, as amended), used to finance the consummation of the transactions contemplated by this Agreement, and (b) enabling the satisfaction and discharge of all financial indebtedness of the Target Companies and all Encumbrances which have been granted by any Target Company (4.7 including, without limitation, a claim to receive a payment from the ~~revolving credit facility agreement dated 24 May 2011 (the “RCF”), the indenture relating~~ Breaching Investor in an amount necessary to the Bonds, and the release of security interests in the collateral securing the Bonds and/or the RCF, in each case on the date of Completion PROVIDED that it is permissible to give notice to repay or redeem on the basis that notice can be given on a conditional basis, the condition being Completion occurring and that there is sufficient time prior to Completion and following satisfaction of the Merger Condition to give such notice(s) (including, for the avoidance of doubt, by delivering any notices required to be delivered in connection with the prepayment, repayment or redemption of any such financial indebtedness in accordance with the relevant documentation or one or more conditional notices of redemption to holders of the Bonds in accordance with the indenture governing the Bonds)) in connection with the satisfaction and discharge of all financial indebtedness of the Target Companies). For the avoidance of doubt, the parties acknowledge and agree that any delay or failure on the part of the Management Shareholders in performing their obligations under this clause 5.10 shall not defer or entitle put the Purchaser ~~to defer Completion~~ into the position which would have existed if clauses 4.6 or ~~otherwise excuse the Purchaser to comply~~ 4.7 had not been breached, together with its obligations to proceed to Completion. The parties further acknowledge and agree that, to the extent that the provisions of this clause 5.10 require the Management Shareholders to procure that the financial statements of the Target Group will be converted from UK GAAP and restated in accordance with US GAAP, the costs and expenses of such conversion and restatement (including any costs incurred by the Target Group in engaging the auditors of the Target Group to undertake such conversion and restatement) will be borne directly by the Purchaser. 5.11 The parties acknowledge and agree that as the Shareholder Loan Amount will as at Completion exceed the Net Equity Value, the Seller intends to take certain steps after the date of this Agreement and on or prior to Completion to adjust the Shareholder Loan Amount to ensure that, on Completion, the Shareholder Loan Amount is equal to the Net Equity Value less £1.00 (such adjusted amount, the “Adjusted Shareholder Loan Amount”), and the Purchaser agrees to all such steps (including waiver) being taken provided that the taking of such steps does not give rise to any detriment to the Purchaser or to the Target Group. The Seller shall provide the Purchaser with reasonable notice of all such steps proposed to be taken and shall not take any such steps without the consent of the Purchaser (such consent not to be unreasonably withheld or delayed). 5.12 To the extent that interest has accrued but has not yet been paid on the Shareholder Loan or as the case may be the Shareholder Loan Notes, and prior to the Completion Date, none of the following have occurred: (a) the Company and/or SubCo (as relevant) have been issued with a valid direction from HMRC to pay interest on the Shareholder Loan or as the case may be the Shareholder Loan Notes free from withholding or deduction of tax; or (b) in the case of the Shareholder Loan Notes, the Shareholder Loan Notes have been listed on the Channel Islands Securities Exchange; or (c) some other exemption from withholding or deduction of UK income tax applies to the interest payable on the Shareholder Loan or as the case may be the Shareholder Loan Notes, the Seller and the Management Shareholders shall or shall procure that necessary steps are taken to permit the Company and/or SubCo (as the case may be) to make payments in respect of such interest without any withholding or deduction of tax. 5.13 In the case of clause 5.12(c) or where steps are otherwise taken under clause 5.12 that are not within clause 5.12(a) or (b), no steps shall be taken by the Seller, the Management Shareholders or the Company without obtaining the consent of the Purchaser, such consent not to be unreasonably withheld or delayed. 5.14 It is the expectation of the parties that (i) if one of the matters referred to in clauses 5.12(a) or (b) has occurred; or (ii) the Purchaser’s consent is given in accordance with clause 5.13 to a particular course of action and the action as consented to is implemented accordingly, then payment of interest on the Shareholder Loan and/or Shareholder Loan Notes will not be subject to withholding tax and the Purchaser shall be obliged to procure the making of the payment referred to in clause 6.2(b) without withholding or deduction of tax. 5.15 The Purchaser shall: (a) take any action reasonably requested by the Seller and/or the Management Shareholders; and/or (b) give the Seller and/or the Management Shareholders such reasonable assistance, as may be required for the Seller and the Management Shareholders to take any steps in accordance with clause 5.12 provided that, for the avoidance of doubt, all out-of-pocket costs and expenses incurred by any Target Company and (subject to the prior consent of the Seller, such consent not to be unreasonably withheld or delayed) all reasonable and properly incurred out of pocket costs and expenses incurred by the Purchaser ~~in respect~~ as a result of ~~any step taken in accordance~~ such breach together with ~~clause 5.12 shall be for the sole account of the Seller. Without prejudice to the foregoing, any such~~ all costs and expenses incurred by the ~~Purchaser~~ Purchaser. 4.9 Following the discharge by any Investor of its obligations under clause 4.8, the Investors' liability under this agreement and the Transaction Documents shall ~~upon production of a valid invoice not later than five (5) Business Days prior to the Completion Date be set off against the sum payable to the Seller at Completion, and, for~~ cease and determine. 4.10 For the avoidance of ~~doubt~~doubt the provisions in clauses 4.6 through 4.8 (inclusive) shall not survive Completion. 4.11 If there is an affirmative statement to any Investor or Principal Management Employee by an Executive Officer of the Purchaser, or on behalf of any such ~~costs~~ an Executive Officer, that the Purchaser will not proceed to Completion at a price of $26,945,750 then notwithstanding any other provision of this agreement to the contrary, the provisions of clauses 4.6 to 4.9 (inclusive) shall immediately cease and ~~expenses incurred by~~ determine and the ~~Target Companies~~ Investors shall ~~be Transaction Fees~~have no further liability pursuant to those clauses. ~~5.16 Notwithstanding any action taken by the Seller under clause 5.12, if the Company and/or SubCo is required by law to make any withholdings or deductions in respect~~ (i) Each of the ~~Shareholder Loan or~~ Vendors (other than the ~~Shareholder Loan Notes (whether by reason of the failure to receive a valid direction from HMRC, any change in law prior to Completion or otherwise~~Investors and Digital Projection Trustee Limited) the Company and/or SubCo shall be permitted to make such deduction or withholding as is required and shall not be required to make any additional payments in respect of the Shareholder Loan or the Shareholder Loan Notes, notwithstanding any provision to the contrary contained within the Shareholder Loan or the Shareholder Loan Notes or otherwise agreed between the parties to such instruments. 5.17 The parties acknowledge severally undertake and agree that ~~if there is a change~~ between the date of law relating to withholding tax in the period prior to Completion, the Seller may be required to take certain steps in accordance with provisions of clauses 5.12(c) and 5.13 provided however that such steps shall be required to be taken prior to the Completion Date and Completion shall not be deferred by reason of any such steps required or proposed to be taken. 5.18 If acting reasonably the Seller this agreement and the Purchaser determine that the steps taken under clauses 5.12 to 5.17 will give rise to detriment to the Purchaser then the Seller shall be entitled to set-off against any payment due from the Purchaser to the Seller under this Agreement an amount equal to the net present value earlier of the cost of the reasonably foreseeable detriment, such value to be determined and agreed by the Seller and the Purchaser acting reasonably and in good faith. 5.19 The Management Shareholders and the Company undertake to the Seller and the Purchaser to procure that each member of the Target Group will comply with its obligations to provide information to, and consult with (as the case may be): (i) the ~~employees of the Target Group;~~ Completion and (ii) the termination of this agreement he will not (a) solicit or initiate any ~~relevant employee body~~ other proposals or accept offers from any person relating to any acquisition or purchase of all or any portion of the ~~employees~~ shares of the ~~Target Group;~~ Company (other than pursuant to the DPI Stock Option Plan) or the shares of any Subsidiary or all or any material portion of the assets of the Group (taken as a whole) or (b) actively, on his own behalf or on behalf of any Group Company, participate in any discussions, conversations or negotiations regarding, or furnish to any other person any information with the intention of assisting such person to seek to do, any of the foregoing. Each of the Vendors (other than the Investors and Digital Projection Trustee Limited) shall immediately cease and cause the Company's financial advisers to be instructed to cease all existing discussions, conversations or negotiations conducted heretofore with respect to any of the foregoing. (ii) Unless prohibited by contract, law or other regulation, each of the Vendors (other than the Investors and Digital Projection Trustee Limited) shall notify the Purchaser promptly upon any such proposal or offer with respect thereto being made to him and, unless so prohibited shall set out in such notice in reasonable detail the identity of such person and the terms and conditions of such proposal or offer. Each of the Vendors (other than the Investors and Digital Projection Trustee Limited) agrees not, without the prior written consent of the Purchaser, to release any person from, or waive any provision of, any standstill agreement to which he, the Company or any Subsidiary is a party. (iii) ~~the appropriate representatives~~ Following a breach by any of the ~~employees~~ Vendors (other than the Investors and Digital Projection Trustee Limited) of any of the ~~Target Group (including, without limitation, the European Works Council~~provisions of clauses 4.12(i) or 4.12(ii), ~~concerning the Proposed Transaction and the potential impact~~ if: a) a sale of any of the ~~Proposed Transaction on~~ Shares of that Vendor; or b) an Asset Sale, occurs in either case prior to 3rd June 2000, then the ~~employees~~ Purchaser shall have the right to either a) require the breaching Vendor to pay the Purchaser in complete satisfaction of the ~~Target Group. 5.20 In order to assist each member of the Target Group to comply with its obligations in~~ breaching Vendor's liability under clause ~~5.19, as soon as reasonably practicable following a request from the Management Shareholders~~ 4.12(i) or ~~the Company (such request being reasonable in the context of the obligations described in clause 5.19~~4.12(ii), the ~~Purchaser shall provide the relevant member of the Target Group with~~ sum set opposite such details of its proposals, if any, that may affect the employees of that Target Company following Completion. The parties shall update the Seller from time to time of progress in relation to the consultation. 5.21 In furtherance of clauses 5.19 and 5.20, and subject to compliance by the Purchaser with its obligations under clause 5.20, the Management Shareholders will: breaching Vendor's name below: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ (aPounds) promptly notify the Purchaser of any material communication received from any relevant employee body of the employees of the Target Group or the appropriate representatives of the employees of the Target Group 50,000 ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ (~~including, without limitation, the European Works Council); and~~ Pounds) 25,000 ▇▇▇▇ ▇▇▇▇ (bPounds) provide the Purchaser with details of the Target Group’s proposed strategy for complying with the obligations described in clause 5.19, including providing the Purchaser with copies of any communications intended to be disseminated as part of information and consultation at such time as will to the extent practicable allow the Purchaser and the Purchaser’s legal advisers a reasonable opportunity to provide comments on such communications and will keep the Purchaser informed of all material devel25,000 ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ (Pounds) 25,000 ▇▇▇▇▇▇ ▇▇▇▇▇ (Pounds) 25,000 ▇▇▇▇▇ ▇▇▇▇▇ (Pounds) 25,000 ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ (Pounds) 25,000 or,

Appears in 1 contract

Sources: Share Purchase Agreement (Imax Corp)

PERIOD TO COMPLETION. ~~5.1 Pending Completion~~4.1 OPERATION OF MSB (a) Between the date of this Agreement and the Completion Date, the ~~Management Shareholders undertake~~ Seller and the Seller's Guarantor (to the ~~Purchaser to procure (insofar as the Management Shareholders are able~~ extent of its power to do ~~so) that: (i)~~ so pursuant to the ~~business~~ terms of the ~~Company; and (ii~~Alcatel Agreement) ~~the business of each other Target Company is~~ shall cause MSB to be conducted in ~~accordance with applicable laws and in~~ the ~~ordinary and usual course and shall take all such steps as are reasonably required to protect and preserve the business and assets~~ Ordinary Course of ~~each Target Company and to maintain that business as a going concern and with a view to profit~~Business. ~~5.2~~ (b) Without ~~prejudice~~ limitation to the ~~generality~~ general character of clause ~~5.1~~4.1(a) above the Seller and, to the extent of its power to do so pursuant to the terms of the Alcatel Agreement, the ~~Management Shareholders undertake to the Purchaser to procure (insofar as the Management Shareholders are reasonably able to do so)~~ Seller's Guarantor warrants and agrees that ~~the Company shall, and shall procure that each Target Company shall, not effect or undertake any matter set out in Schedule 2 in the period~~ from the date of this Agreement to the Completion Date ~~without~~ and save with the prior ~~approval~~ written consent of the ~~Purchaser (such approval not to~~ Buyer's Guarantor, which response shall be ~~unreasonably withheld or delayed). 5.3 The Seller shall not~~given no later than four Business Days after request, ~~if approval for such matter is requested, approve any proposed action~~ in the absence of a Management Shareholder of which it has prior notice if it is aware that such action would breach either of clauses 5.1 or 5.2. 5.4 The Seller shall procure that any director of any Target Company that is an officer, employee or director of the Seller, Terra Firma or any Related Person of either of the foregoing, or any director that is a nominee company of either the Seller, Terra Firma or any Related Person of either of the foregoing, shall not, subject to that director complying with his or her fiduciary duties and all applicable law and regulatory requirements, approve any proposed action of a Management Shareholder of which it has prior notice if the relevant director is aware that such action would breach either of clauses 5.1 or 5.2. 5.5 A Management Shareholder shall notify the Purchaser as soon as reasonably practicable if he becomes aware of any matter, fact or circumstance which constitutes a breach of either of clauses 5.1 or 5.2 prior to Completion. 5.6 On the Completion Statement Dateresponse within said period, the ~~Seller~~ Buyer's Guarantor shall ~~provide~~ be deemed to the Purchaser the Completion Statement (on the basis that its contents are calculations made in good faith and without liability save in respect of fraud). 5.7 On the date of this Agreement, each Management Shareholder shall deliver to the Seller’s Solicitorshave consented: (ai) no grant by the Company or the Acquired Subsidiary of a ~~stock transfer form in~~ loan credit or memory facility or amendment of an existing loan credit or money facility shall be effected outside the ~~name~~ Ordinary Course of Business which will give rise to a Material Adverse Change; (ii) no grant by the Company or the Acquired Subsidiary of a guarantee, charge, pledge or other Encumbrance over the Assets or the Property shall be effected which shall not be fully discharged or released as at the Completion Date; (iii) none of the Company or the Acquired Subsidiary shall dispose of any interest in ~~respect~~ the Properties or any of ~~all~~ the ~~SubCo Shares held by that Management Shareholder, duly executed by that Management Shareholder but undated~~Assets; (biv) ~~a share certificate relating~~ Capital investment related to MSB shall be spent in the ~~SubCo Shares held by that Management Shareholder or an indemnity in respect~~ Ordinary Course of Business. In any ~~lost certificates; (c) a power of attorney executed by that Management Shareholder to enable~~ event, the Company ~~to exercise all voting~~ shall invest in and other rights attached to the SubCo Shares held by that Management Shareholder from Completion pending registration of the transfer thereof; (d) a counterpart of the Management Shareholder Waiver Letter signed by each Management Shareholder, and each Management Shareholder irrevocably and unconditionally authorises the Seller’s Solicitors to date such documents on the Completion Date and to deliver such documents to the Purchaser at Completion. 5.8 On the date of this Agreement, the Management Shareholders shall deliver to the Purchaser: (a) a counterpart of the Disclosure Letter signed by or on behalf of each Management Shareholder, and the Purchaser shall deliver to the Management Shareholders a countersigned copy of the Disclosure Letter duly signed by the Purchaser; (b) a counterpart of the Management Warranty Deed and the Management Tax Covenant signed by or on behalf of each Management Shareholder, and the Purchaser shall deliver to the Management Shareholders a countersigned copy of the Management Warranty Deed and the Management Tax Covenant duly signed by the Purchaser; and (c) a counterpart of the Management Escrow Agreement signed by each Management Shareholder. 5.9 On the date of this Agreement: (a) the Seller shall deliver to the Purchaser, a certified copy of the minutes of a meeting of the directors of the Seller resolving that the Seller should enter into this Agreement; (b) the Purchaser shall deliver to the Seller, a certified copy of the minutes of a meeting of the directors of the Purchaser resolving that the Purchaser should enter into this Agreement; (c) the Purchaser Guarantor shall deliver to the Seller a certified copy of the minutes of a meeting of the directors of the Purchaser Guarantor approving the execution by the Purchaser Guarantor of this Agreement; and (d) the Purchaser shall deliver to the Management Shareholders a counterpart of the Management Escrow Agreement duly signed by the Purchaser. 5.10 Subject to applicable law, prior to the date of Completion, the Management Shareholders shall, at the sole cost of the Purchaser, use reasonable efforts to, and shall use reasonable efforts to cause each Target Company and each of their respective directors, officers, employees, agents and advisers (including legal and accounting advisers provided that all advisers’ costs shall be pay for the sole account of and payable by the Purchaser) to use reasonable efforts to, cooperate with the Purchaser (including (a) (i) providing any information, documents, agreements, consents, comfort letters, certifications and representations reasonably requested by the Purchaser, its legal advisors and independent accountants, its financing sources or investment banks or their legal advisers (which, for the avoidance of doubt, shall include all documentation and other information required under applicable “know your customer” and anti-money laundering rules and regulations), and (ii) participating in a reasonable number of meetings and conference calls with prospective lenders and investors, road shows, due diligence sessions, drafting sessions and sessions with rating agencies and preparation of the materials fixed assets related to ~~such meetings, sessions, conference calls and road shows, and (iii) assisting~~ MSB in the preparation of a customary confidential information memorandum or other offering document, in each case, in connection with the syndication of the debt, the financing of the transactions contemplated by this Agreement, including any public or private offering or placement of debt or equity securities (which, for the avoidance of doubt, may include an offering of secured high-yield debt securities under Rule 144A of the U.S. Securities Act of 1933, as amended), used to finance the consummation of the transactions contemplated by this Agreement, and (b) enabling the satisfaction and discharge of all financial indebtedness of the Target Companies and all Encumbrances which have been granted by any Target Company (including, without limitation, the revolving credit facility agreement dated 24 May 2011 (the “RCF”), the indenture relating to the Bonds, and the release of security interests in the collateral securing the Bonds and/or the RCF, in each case on the date of Completion PROVIDED that it is permissible to give notice to repay or redeem on the basis that notice can be given on a conditional basis, the condition being Completion occurring and that there is sufficient time prior to Completion and following satisfaction of the Merger Condition to give such notice(s) (including, for the avoidance of doubt, by delivering any notices required to be delivered in connection with the prepayment, repayment or redemption of any such financial indebtedness in accordance with the relevant documentation or one or more conditional notices of redemption to holders of the Bonds in accordance with the indenture governing the Bonds)) in connection with the satisfaction and discharge of all financial indebtedness of the Target Companies). For the avoidance of doubt, the parties acknowledge and agree that any delay or failure on the part of the Management Shareholders in performing their obligations under this clause 5.10 shall not defer or entitle the Purchaser to defer Completion or otherwise excuse the Purchaser to comply with its obligations to proceed to Completion. The parties further acknowledge and agree that, to the extent that the provisions of this clause 5.10 require the Management Shareholders to procure that the financial statements of the Target Group will be converted from UK GAAP and restated in accordance with US GAAP, the costs and expenses of such conversion and restatement (including any costs incurred by the Target Group in engaging the auditors of the Target Group to undertake such conversion and restatement) will be borne directly by the Purchaser. 5.11 The parties acknowledge and agree that as the Shareholder Loan Amount will as at Completion exceed the Net Equity Value, the Seller intends to take certain steps after period between the date of this Agreement and ~~on or prior to~~ Completion ~~to adjust~~ Date in an amount of at least the ~~Shareholder Loan Amount to ensure that, on Completion, the Shareholder Loan Amount is equal~~ same proportions to the ~~Net Equity Value less £1.00~~ expenditures for fixed assets of the Company for that period as the proportion for MSB reflected in the Company's fixed asset budget for 2002 as a whole attached as Schedule 13; (~~such adjusted amount,~~ v) Stock shall be managed in the ~~“Adjusted Shareholder Loan Amount”),~~ Ordinary Course of Business of MSB; (vi) the Company and the ~~Purchaser agrees~~ Acquired Subsidiary will continue to ~~all such steps~~ manage Working Capital in the Ordinary Course of Business of MSB; (~~including waiver~~vii) ~~being taken provided that~~ except as disclosed in Schedule 14 neither the ~~taking of such steps does~~ Company nor the Acquired Subsidiary shall grant any benefit, premium or bonus to their employees, directors and managers and the Company and Acquired Subsidiary shall not ~~give rise to any detriment~~ conclude a remuneration contract outside the standards applicable to the ~~Purchaser or to~~ type of business operated by the ~~Target Group. The Seller shall provide the Purchaser with reasonable notice of all such steps proposed to be taken~~ Company and shall not take any such steps without the consent of the Purchaser (such consent not to be unreasonably withheld or delayed). 5.12 To the extent that interest has accrued but has not yet been paid on the Shareholder Loan or as the case may be the Shareholder Loan Notes, Acquired Subsidiary and ~~prior to the Completion Date,~~ none of the ~~following have occurred:~~employees shall benefit from extra-statutory remunerations which derogate from the applicable contract; and (aviii) neither the Company ~~and/or SubCo (~~nor the Acquired Subsidiary shall enter into or materially amend any long term agreements or commitments, long term being defined as ~~relevant) have been issued with a valid direction from HMRC~~ effective after December 31, 2002, in each case, relating to pay interest on the Shareholder Loan or as the case may be the Shareholder Loan Notes free from withholding or deduction of tax; or (b) in the case of the Shareholder Loan Notes, the Shareholder Loan Notes have been listed on the Channel Islands Securities Exchange; orMSB; (c) ~~some~~ For the purpose of giving the consents provided in paragraph (b) of this sub-section, the Buyer's Guarantor hereby designates as the Buyer's authorised representative Christine King and Walter Mattheus or any other ~~exemption from withholding or deduction of UK income tax applies to~~ person the▇ ▇▇▇▇▇▇▇▇ ▇▇ the ~~interest payable on the Shareholder Loan~~ S▇▇▇▇▇'▇ ▇▇▇▇▇▇▇or as ~~the case may~~ a substitute for either of them; (d) The Buyer shall only be ~~the Shareholder Loan Notes, the Seller and the Management Shareholders shall or shall procure that necessary steps are taken~~ entitled to ~~permit the Company and/or SubCo (as the case may be) to make payments in respect~~ claim for a breach by Seller's Guarantor of ~~such interest without any withholding or deduction of tax. 5.13 In the case of clause 5.12(c~~section 4.1(b) or ~~where steps are otherwise taken under clause 5.12 that are not within clause 5.12(a)~~ in the event of gross negligence or ~~(b), no steps shall be taken~~ wilful breach by the Seller, the Management Shareholders or the Company without obtaining the consent of the Purchaser, such consent not to be unreasonably withheld or delayed. 5.14 It is the expectation of the parties that (i) if one of the matters referred to in clauses 5.12(a) or (b) has occurred; or (ii) the Purchaser’s consent is given in accordance with clause 5.13 to a particular course of action and the action as consented to is implemented accordingly, then payment of interest on the Shareholder Loan and/or Shareholder Loan Notes will not be subject to withholding tax and the Purchaser shall be obliged to procure the making of the payment referred to in clause 6.2(b) without withholding or deduction of tax. 5.15 The Purchaser shall: (a) take any action reasonably requested by the Seller and/or the Management Shareholders; and/or (b) give the Seller and/or the Management Shareholders such reasonable assistance, as may be required for the Seller and the Management Shareholders to take any steps in accordance with clause 5.12 provided that, for the avoidance of doubt, all out-of-pocket costs and expenses incurred by any Target Company and (subject to the prior consent of the Seller, such consent not to be unreasonably withheld or delayed) all reasonable and properly incurred out of pocket costs and expenses incurred by the Purchaser in respect of any step taken in accordance with clause 5.12 shall be for the sole account of the Seller. Without prejudice to the foregoing, any such costs and expenses incurred by the Purchaser shall upon production of a valid invoice not later than five (5) Business Days prior to the Completion Date be set off against the sum payable to the Seller at Completion, and, for the avoidance of doubt, any such costs and expenses incurred by the Target Companies shall be Transaction Fees. 5.16 Notwithstanding any action taken by the Seller under clause 5.12, if the Company and/or SubCo is required by law to make any withholdings or deductions 's Guarantor in respect of the Shareholder Loan or the Shareholder Loan Notes (whether by reason of the failure to receive a valid direction from HMRC, any change in law prior to Completion or otherwise) the Company and/or SubCo shall be permitted to make such deduction or withholding as is required and shall not be required to make any additional payments in respect of the Shareholder Loan or the Shareholder Loan Notes, notwithstanding any provision to the contrary contained within the Shareholder Loan or the Shareholder Loan Notes or otherwise agreed between the parties to such instruments. 5.17 The parties acknowledge and agree that if there is a change of law relating to withholding tax in the period prior to Completion, the Seller may be required to take certain steps in accordance with provisions of clauses 5.12(c) and 5.13 provided however that such steps shall be required to be taken prior to the Completion Date and Completion shall not be deferred by reason of any such steps required or proposed to be takenclause 4.1(a). 5.18 If acting reasonably the Seller and the Purchaser determine that the steps taken under clauses 5.12 to 5.17 will give rise to detriment to the Purchaser then the Seller shall be entitled to set-off against any payment due from the Purchaser to the Seller under this Agreement an amount equal to the net present value of the cost of the reasonably foreseeable detriment, such value to be determined and agreed by the Seller and the Purchaser acting reasonably and in good faith. 5.19 The Management Shareholders and the Company undertake to the Seller and the Purchaser to procure that each member of the Target Group will comply with its obligations to provide information to, and consult with (as the case may be): (i) the employees of the Target Group; (ii) any relevant employee body of the employees of the Target Group; or (iii) the appropriate representatives of the employees of the Target Group (including, without limitation, the European Works Council), concerning the Proposed Transaction and the potential impact of the Proposed Transaction on the employees of the Target Group. 5.20 In order to assist each member of the Target Group to comply with its obligations in clause 5.19, as soon as reasonably practicable following a request from the Management Shareholders or the Company (such request being reasonable in the context of the obligations described in clause 5.19), the Purchaser shall provide the relevant member of the Target Group with such details of its proposals, if any, that may affect the employees of that Target Company following Completion. The parties shall update the Seller from time to time of progress in relation to the consultation. 5.21 In furtherance of clauses 5.19 and 5.20, and subject to compliance by the Purchaser with its obligations under clause 5.20, the Management Shareholders will: (a) promptly notify the Purchaser of any material communication received from any relevant employee body of the employees of the Target Group or the appropriate representatives of the employees of the Target Group (including, without limitation, the European Works Council); and (b) provide the Purchaser with details of the Target Group’s proposed strategy for complying with the obligations described in clause 5.19, including providing the Purchaser with copies of any communications intended to be disseminated as part of information and consultation at such time as will to the extent practicable allow the Purchaser and the Purchaser’s legal advisers a reasonable opportunity to provide comments on such communications and will keep the Purchaser informed of all material devel

Appears in 1 contract

Sources: Acquisition Agreement (Ami Semiconductor Inc)

PERIOD TO COMPLETION. ~~5.1 Pending Completion,~~ 4.1 The Seller undertakes with the ~~Management Shareholders undertake~~ Buyer to the Purchaser to procure (insofar as the Management Shareholders are able to do so) that: (i) the business of the Company; and (ii) the business of each other Target Company is conducted in accordance with applicable laws and in the ordinary and usual course and shall take all such steps as are reasonably required to protect and preserve the business and assets of each Target Company and to maintain that business as a going concern and with a view to profit. 5.2 Without prejudice to the generality of clause 5.1, the Management Shareholders undertake to the Purchaser to procure (insofar as the Management Shareholders are reasonably able to do so) that the Company shall, and shall procure that each ~~Target~~ Group Company shall, not effect or undertake any matter set out in Schedule 2 in the period from the date of this Agreement to the Completion Date without the prior approval of the Purchaser (such approval not to be unreasonably withheld or delayed). 5.3 The Seller shall not, if approval for such matter is requested, approve any proposed action of a Management Shareholder of which it has prior notice if it is aware that such action would breach either of clauses 5.1 or 5.2. 5.4 The Seller shall procure that any director of any Target Company that is an officer, employee or director of the Seller, Terra Firma or any Related Person of either of the foregoing, or any director that is a nominee company of either the Seller, Terra Firma or any Related Person of either of the foregoing, shall not, subject to that director complying with his or her fiduciary duties and all applicable law and regulatory requirements, approve any proposed action of a Management Shareholder of which it has prior notice if the relevant director is aware that such action would breach either of clauses 5.1 or 5.2. 5.5 A Management Shareholder shall notify the Purchaser as soon as reasonably practicable if he becomes aware of any matter, fact or circumstance which constitutes a breach of either of clauses 5.1 or 5.2 prior to Completion. 5.6 On the Completion Statement Date, the Seller shall provide to the Purchaser the Completion Statement (on the basis that its contents are calculations made in good faith and without liability save in respect of fraud). 5.7 On the date of this Agreement, each Management Shareholder shall deliver to the Seller’s Solicitors: (a) operate its business and activities in their usual course and in such a ~~stock transfer form~~ manner between today’s date and the Completion Date as to ensure that no act or event shall occur during that period which would be reasonably expected to result in ~~the name~~ a breach of the ~~Company in respect of all the SubCo Shares held by that Management Shareholder, duly executed by that Management Shareholder but undated;~~Warranties upon their repetition immediately prior to Completion; and (b) ~~a share certificate relating~~ comply with each of the undertakings set out in schedule 5. 4.2 Pending Completion the Buyer and any person authorised by it shall be given reasonable access to the ~~SubCo Shares held by that Management Shareholder or an indemnity~~ London Property and in ~~respect~~ relation to any other property from which the business of any ~~lost certificates; (c) a power~~ Group Company operates shall be given the same rights of ~~attorney executed by that Management Shareholder~~ access as are available to enable the Company to exercise all voting and other rights attached to the SubCo Shares held by that Management Shareholder from Completion pending registration of the transfer thereof; (d) a counterpart of the Management Shareholder Waiver Letter signed by each Management ShareholderSeller, and to all the books and records of each ~~Management Shareholder irrevocably~~ Group Company and ~~unconditionally authorises~~ the ~~Seller’s Solicitors~~ directors and employees of each Group Company shall be instructed to ~~date~~ give promptly all such ~~documents on~~ information and explanations as the ~~Completion Date and to deliver~~ Buyer or any such ~~documents to the Purchaser at Completion~~person may reasonably request. ~~5.8 On the date of this Agreement, the Management Shareholders shall deliver to the Purchaser~~4.3 If: (a) ~~a counterpart of the Disclosure Letter signed by~~ there is any breach or ~~on behalf of each Management Shareholder, and the Purchaser shall deliver to the Management Shareholders a countersigned copy of the Disclosure Letter duly signed~~ non-fulfilment by the ~~Purchaser; (b) a counterpart~~ Seller of ~~the Management Warranty Deed and the Management Tax Covenant signed by or on behalf~~ any of each Management Shareholder, and the Purchaser shall deliver to the Management Shareholders a countersigned copy of the Management Warranty Deed and the Management Tax Covenant duly signed by the Purchaser; and (c) a counterpart of the Management Escrow Agreement signed by each Management Shareholder. 5.9 On the date of this Agreement: (a) the Seller shall deliver to the Purchaser, a certified copy of the minutes of a meeting of the directors of the Seller resolving that the Seller should enter into this Agreement; (b) the Purchaser shall deliver to the Seller, a certified copy of the minutes of a meeting of the directors of the Purchaser resolving that the Purchaser should enter into this Agreement; (c) the Purchaser Guarantor shall deliver to the Seller a certified copy of the minutes of a meeting of the directors of the Purchaser Guarantor approving the execution by the Purchaser Guarantor of this Agreement; and (d) the Purchaser shall deliver to the Management Shareholders a counterpart of the Management Escrow Agreement duly signed by the Purchaser. 5.10 Subject to applicable law, prior to the date of Completion, the Management Shareholders shall, at the sole cost of the Purchaser, use reasonable efforts to, and shall use reasonable efforts to cause each Target Company and each of their respective directors, officers, employees, agents and advisers (including legal and accounting advisers provided that all advisers’ costs shall be for the sole account of and payable by the Purchaser) to use reasonable efforts to, cooperate with the Purchaser (including (a) (i) providing any information, documents, agreements, consents, comfort letters, certifications and representations reasonably requested by the Purchaser, its legal advisors and independent accountants, its financing sources or investment banks or their legal advisers (which, for the avoidance of doubt, shall include all documentation and other information required under applicable “know your customer” and anti-money laundering rules and regulations), and (ii) participating in a reasonable number of meetings and conference calls with prospective lenders and investors, road shows, due diligence sessions, drafting sessions and sessions with rating agencies and preparation of the materials related to such meetings, sessions, conference calls and road shows, and (iii) assisting in the preparation of a customary confidential information memorandum or other offering document, in each case, in connection with the syndication of the debt, the financing of the transactions contemplated by this Agreement, including any public or private offering or placement of debt or equity securities (which, for the avoidance of doubt, may include an offering of secured high-yield debt securities under Rule 144A of the U.S. Securities Act of 1933, as amended), used to finance the consummation of the transactions contemplated by this Agreement, and (b) enabling the satisfaction and discharge of all financial indebtedness of the Target Companies and all Encumbrances which have been granted by any Target Company (including, without limitation, the revolving credit facility agreement dated 24 May 2011 (the “RCF”), the indenture relating to the Bonds, and the release of security interests in the collateral securing the Bonds and/or the RCF, in each case on the date of Completion PROVIDED that it is permissible to give notice to repay or redeem on the basis that notice can be given on a conditional basis, the condition being Completion occurring and that there is sufficient time prior to Completion and following satisfaction of the Merger Condition to give such notice(s) (including, for the avoidance of doubt, by delivering any notices obligations hereunder required to be delivered in connection with the prepayment, repayment or redemption of any such financial indebtedness in accordance with the relevant documentation or one or more conditional notices of redemption to holders of the Bonds in accordance with the indenture governing the Bonds)) in connection with the satisfaction performed and discharge of all financial indebtedness of the Target Companies). For the avoidance of doubt, the parties acknowledge and agree that any delay or failure on the part of the Management Shareholders in performing their obligations under this clause 5.10 shall not defer or entitle the Purchaser to defer Completion or otherwise excuse the Purchaser to comply with its obligations to proceed to Completion. The parties further acknowledge and agree that, to the extent that the provisions of this clause 5.10 require the Management Shareholders to procure that the financial statements of the Target Group will be converted from UK GAAP and restated in accordance with US GAAP, the costs and expenses of such conversion and restatement (including any costs incurred satisfied by the Target Group in engaging the auditors of the Target Group to undertake such conversion and restatement) will be borne directly by the Purchaser. 5.11 The parties acknowledge and agree that as the Shareholder Loan Amount will as at Completion exceed the Net Equity Value, the Seller intends to take certain steps after the date of this Agreement and it on or prior to Completion to adjust the Shareholder Loan Amount to ensure that, on Completion, the Shareholder Loan Amount is equal to the Net Equity Value less £1.00 (such adjusted amount, the “Adjusted Shareholder Loan Amount”), and the Purchaser agrees to all such steps (including waiver) being taken provided that the taking of such steps does not give rise to any detriment to the Purchaser or to the Target Group. The Seller shall provide the Purchaser with reasonable notice of all such steps proposed to be taken and shall not take any such steps without the consent of the Purchaser (such consent not to be unreasonably withheld or delayed). 5.12 To the extent that interest has accrued but has not yet been paid on the Shareholder Loan or as the case may be the Shareholder Loan Notes, and prior to the Completion Date, none of the following have occurred: (a) the Company and/or SubCo (as relevant) have been issued with a valid direction from HMRC to pay interest on the Shareholder Loan or as the case may be the Shareholder Loan Notes free from withholding or deduction of tax; or (b) between the date of this agreement and Completion there is any material adverse change (or additional facts or circumstances become known to or are disclosed to the Buyer that, if they had related to events occurring between the date of this agreement and Completion would have constituted a material adverse change) in the ~~case~~ business, operations, assets, liabilities, position (financial, trading or otherwise) profits or prospects of the ~~Shareholder Loan Notes,~~ Group or any event or circumstance that may result in such a material adverse change then in any such case the ~~Shareholder Loan Notes~~ Buyer shall be entitled (in addition and without prejudice to any other rights or remedies it may have ~~been listed on~~ against the ~~Channel Islands Securities Exchange; or (c~~Seller under this agreement or otherwise) ~~some other exemption from withholding or deduction of UK income tax applies~~ to elect by notice in writing to the ~~interest payable on~~ Seller not to complete the ~~Shareholder Loan~~ purchase of the Shares, in which event this agreement shall automatically terminate save that the rights and liabilities of the parties which have accrued prior to termination shall continue to subsist including those under clauses 11, 13 and 16 to 23 (inclusive). 4.4 The Seller undertakes to the Buyer that it will disclose forthwith in writing to the Buyer any matter or thing which may arise or become known to it after the date hereof which is inconsistent with any of the Warranties. 4.5 The Seller undertakes to the Buyer that it will secure at the Seller’s cost assignments from M▇▇▇▇ Networks Limited or M▇▇▇▇ Networks N.V., as applicable, of all trade marks (be they registered or unregistered) free from any Encumbrance subsisting anywhere in the ~~case may be~~ world which are owned by M▇▇▇▇ Networks Limited or M▇▇▇▇ Networks N.V., as applicable, and/or any of its subsidiaries or holding companies in the ~~Shareholder Loan Notes~~Gains name and associated logos as used in the business of any Group Company prior to Completion so that the trade marks are assigned to Gains UK by way of the Trade M▇▇▇ Assignment. The Seller further undertakes that it will procure changes to proprietary details at the relevant domain name registries for the domain names ‘g▇▇▇▇.▇▇▇’ and all other domain names featuring the expression ‘Gains’ which the Seller or a member of the Seller’s Group holds or has a contractual right to so that GAC becomes the named proprietor at the relevant registry and can take operational control of the domain names at Completion. 4.6 Notwithstanding anything contained herein to the contrary, the Seller ~~and the Management Shareholders~~ shall or shall procure that necessary steps are taken to permit the Company and/or SubCo (as the case may be) to make payments in respect of such interest without any withholding or deduction of tax. 5.13 In the case of clause 5.12(c) or where steps are otherwise taken under clause 5.12 that are not within clause 5.12(a) or (b), no steps shall be taken by the Seller, the Management Shareholders or the Company without obtaining the consent of the Purchaser, such consent not to be unreasonably withheld or delayed. 5.14 It is the expectation of the parties that (i) if one of the matters referred to in clauses 5.12(a) or (b) has occurred; or (ii) the Purchaser’s consent is given in accordance with clause 5.13 to a particular course of action and the action as consented to is implemented accordingly, then payment of interest on the Shareholder Loan and/or Shareholder Loan Notes will not be subject to withholding tax and the Purchaser shall be obliged to procure the making of the payment referred to in clause 6.2(b) without withholding or deduction of tax. 5.15 The Purchaser shall: (a) take any action reasonably requested by the Seller and/or the Management Shareholders; and/or (b) give the Seller and/or the Management Shareholders such reasonable assistance, as may be required for the Seller and the Management Shareholders to take any steps in accordance with clause 5.12 provided that, for the avoidance of doubt, at all out-of-pocket costs and expenses incurred by any Target Company and (subject to the prior consent of the Seller, such consent not to be unreasonably withheld or delayed) all reasonable and properly incurred out of pocket costs and expenses incurred by the Purchaser in respect of any step taken in accordance with clause 5.12 shall be for the sole account of the Seller. Without prejudice to the foregoing, any such costs and expenses incurred by the Purchaser shall upon production of a valid invoice not later than five (5) Business Days times prior to the Completion Date ~~be set off against~~ retain control over the ~~sum payable to the Seller at Completion~~policies, ~~and~~assets, ~~for the avoidance of doubt~~ownership, ~~any such costs~~ and expenses incurred by the Target Companies shall be Transaction Fees. 5.16 Notwithstanding any action taken by the Seller under clause 5.12, if the Company and/or SubCo is required by law to make any withholdings or deductions in respect operation of the ~~Shareholder Loan or the Shareholder Loan Notes (whether by reason of the failure to receive a valid direction from HMRC~~Gains US, any change in law prior to Completion or otherwise) the Company and/or SubCo shall be permitted to make such deduction or withholding as is required and shall not be required to make any additional payments in respect of the Shareholder Loan or the Shareholder Loan Notes, notwithstanding any provision to the contrary contained within the Shareholder Loan or the Shareholder Loan Notes or otherwise agreed between the parties to such instruments. 5.17 The parties acknowledge and agree that if there is a change of law relating to withholding tax in the period prior to Completion, the Seller may be required to take certain steps in accordance with provisions of clauses 5.12(c) and 5.13 provided however that such steps shall be required to be taken prior to the Completion Date and Completion shall not be deferred by reason of any such steps required or proposed to be taken. 5.18 If acting reasonably the Seller and the Purchaser determine that the steps taken under clauses 5.12 to 5.17 will give rise to detriment to the Purchaser then the Seller shall be entitled to set-off against any payment due from the Purchaser to the Seller under this Agreement an amount equal to the net present value of the cost of the reasonably foreseeable detriment, such value to be determined and agreed by the Seller and the Purchaser acting reasonably and in good faith. 5.19 The Management Shareholders and the Company undertake to the Seller and the Purchaser to procure that each member of the Target Group will comply with its obligations to provide information to, and consult with (as the case may be): (i) the employees of the Target Group; (ii) any relevant employee body of the employees of the Target Group; or (iii) the appropriate representatives of the employees of the Target Group (including, without limitation, ~~the European Works Council), concerning the Proposed Transaction and the potential impact of the Proposed Transaction on the employees of the Target Group. 5.20 In order~~ authority with respect to assist each member of the Target Group to comply with its obligations in clause 5.19, as soon as reasonably practicable following a request from the Management Shareholders or the Company (such request being reasonable in the context of the obligations described in clause 5.19), the Purchaser shall provide the relevant member of the Target Group with such details of its proposals, if any, that may affect the employees of that Target Company following Completion. The parties shall update the Seller from time to time of progress in relation to the consultation. 5.21 In furtherance of clauses 5.19 and 5.20, and subject to compliance by the Purchaser with its obligations under clause 5.20, the Management Shareholders will: (a) ~~promptly notify~~ personnel matters associated with the ~~Purchaser of any material communication received from any relevant employee body of the employees of the Target Group or the appropriate representatives of the employees of the Target Group (including~~Company’s operation, ~~without limitation, the European Works Council); and~~ (b) ~~provide the Purchaser with details~~ financial affairs of the ~~Target Group’s proposed strategy for complying with the obligations described in clause 5.19~~Company, ~~including providing the Purchaser with copies of any communications intended to be disseminated as part of information~~ and ~~consultation at such time as will to the extent practicable allow the Purchaser~~ (c) all FCC licensing and ~~the Purchaser’s legal advisers a reasonable opportunity to provide comments on such communications and will keep the Purchaser informed of all material devel~~authorisation matters.

Appears in 1 contract

Sources: Share Purchase Agreement (Ipc Acquisition Corp)

PERIOD TO COMPLETION. ~~5.1 Pending~~ 4.1 The Seller shall, in addition to and without limiting its obligation under clause 4.2, procure that from the date of this agreement until Completion~~, the Management Shareholders undertake to the Purchaser to procure~~ : (~~insofar as the Management Shareholders are able to do so) that: (i~~a) the business of the ~~Company; and (ii) the business of each other~~ Target ~~Company~~ Group Companies is ~~conducted in accordance with applicable laws and~~ carried on in the ~~ordinary~~ usual and usual course and shall take all such steps as are reasonably required to protect and preserve the business and assets of each Target Company and to maintain that business as a going concern and with a view to profit. 5.2 Without prejudice to the generality of clause 5.1, the Management Shareholders undertake to the Purchaser to procure (insofar as the Management Shareholders are reasonably able to do so) that the Company shall, and shall procure that each Target Company shall, not effect or undertake any matter set out in Schedule 2 in the period from the date of this Agreement to the Completion Date without the prior approval of the Purchaser (such approval not to be unreasonably withheld or delayed). 5.3 The Seller shall not, if approval for such matter is requested, approve any proposed action of a Management Shareholder of which it has prior notice if it is aware that such action would breach either of clauses 5.1 or 5.2. 5.4 The Seller shall procure that any director of any Target Company that is an officer, employee or director of the Seller, Terra Firma or any Related Person of either of the foregoing, or any director that is a nominee company of either the Seller, Terra Firma or any Related Person of either of the foregoing, shall not, subject to that director complying with his or her fiduciary duties and all applicable law and regulatory requirements, approve any proposed action of a Management Shareholder of which it has prior notice if the relevant director is aware that such action would breach either of clauses 5.1 or 5.2. 5.5 A Management Shareholder shall notify the Purchaser as soon as reasonably practicable if he becomes aware of any matter, fact or circumstance which constitutes a breach of either of clauses 5.1 or 5.2 prior to Completion. 5.6 On the Completion Statement Date, the Seller shall provide to the Purchaser the Completion Statement (on the basis that its contents are calculations made in good faith and without liability save in respect of fraud). 5.7 On the date of this Agreement, each Management Shareholder shall deliver to the Seller’s Solicitors: (a) a stock transfer form in the name of the Company in respect of all the SubCo Shares held by that Management Shareholder, duly executed by that Management Shareholder but undatednormal course; (b) ~~a share certificate relating~~ the Target Group Companies take all reasonable steps to preserve the ~~SubCo Shares held by that Management Shareholder~~ goodwill of their respective businesses and continue to deal with the same in the ordinary course of business and shall do nothing which will or ~~an indemnity in respect of any lost certificates; (c) a power of attorney executed by that Management Shareholder~~ would be likely to enable the Company to exercise all voting and other rights attached to the SubCo Shares held by that Management Shareholder from Completion pending registration of the transfer thereof; (d) a counterpart of the Management Shareholder Waiver Letter signed by each Management Shareholder, and each Management Shareholder irrevocably and unconditionally authorises the Seller’s Solicitors to date injure such documents on the Completion Date and to deliver such documents to the Purchaser at Completion. 5.8 On the date of this Agreement, the Management Shareholders shall deliver to the Purchaser: (a) a counterpart of the Disclosure Letter signed by or on behalf of each Management Shareholder, and the Purchaser shall deliver to the Management Shareholders a countersigned copy of the Disclosure Letter duly signed by the Purchaser; (b) a counterpart of the Management Warranty Deed and the Management Tax Covenant signed by or on behalf of each Management Shareholder, and the Purchaser shall deliver to the Management Shareholders a countersigned copy of the Management Warranty Deed and the Management Tax Covenant duly signed by the Purchasergoodwill; and (c) ~~a counterpart~~ none of the ~~Management Escrow Agreement signed by each Management Shareholder. 5.9 On~~ Target Group Companies shall enter into any contract or commitment or do anything which, in any such case, is either out of the ordinary and usual course of its business or of a material nature in the context of the Target Group taken as a whole without the prior consent in writing of the Buyer. In particular, but without limiting the foregoing, the Seller shall procure that from the date of this ~~Agreement: (a)~~ agreement until Completion, save with the ~~Seller shall deliver to the Purchaser, a certified copy~~ prior consent in writing of the minutes of a meeting of the directors of the Seller resolving that the Seller should enter into this Agreement; (b) the Purchaser shall deliver to the Seller, a certified copy of the minutes of a meeting of the directors of the Purchaser resolving that the Purchaser should enter into this Agreement; (c) the Purchaser Guarantor shall deliver to the Seller a certified copy of the minutes of a meeting of the directors of the Purchaser Guarantor approving the execution by the Purchaser Guarantor of this Agreement; and (d) the Purchaser shall deliver to the Management Shareholders a counterpart of the Management Escrow Agreement duly signed by the Purchaser. 5.10 Subject to applicable law, prior to the date of Completion, the Management Shareholders shall, at the sole cost of the Purchaser, use reasonable efforts to, and shall use reasonable efforts to cause each Target Company and each of their respective directors, officers, employees, agents and advisers (including legal and accounting advisers provided that all advisers’ costs shall be for the sole account of and payable by the Purchaser) to use reasonable efforts to, cooperate with the Purchaser (including (a) (i) providing any information, documents, agreements, consents, comfort letters, certifications and representations reasonably requested by the Purchaser, its legal advisors and independent accountants, its financing sources or investment banks or their legal advisers (which, for the avoidance of doubt, shall include all documentation and other information required under applicable “know your customer” and anti-money laundering rules and regulations), and (ii) participating in a reasonable number of meetings and conference calls with prospective lenders and investors, road shows, due diligence sessions, drafting sessions and sessions with rating agencies and preparation of the materials related to such meetings, sessions, conference calls and road shows, and (iii) assisting in the preparation of a customary confidential information memorandum or other offering document, in each case, in connection with the syndication of the debt, the financing of the transactions contemplated by this Agreement, including any public or private offering or placement of debt or equity securities (which, for the avoidance of doubt, may include an offering of secured high-yield debt securities under Rule 144A of the U.S. Securities Act of 1933, as amended), used to finance the consummation of the transactions contemplated by this Agreement, and (b) enabling the satisfaction and discharge of all financial indebtedness of the Target Companies and all Encumbrances which have been granted by any Target Company (including, without limitation, the revolving credit facility agreement dated 24 May 2011 (the “RCF”), the indenture relating to the Bonds, and the release of security interests in the collateral securing the Bonds and/or the RCF, in each case on the date of Completion PROVIDED that it is permissible to give notice to repay or redeem on the basis that notice can be given on a conditional basis, the condition being Completion occurring and that there is sufficient time prior to Completion and following satisfaction of the Merger Condition to give such notice(s) (including, for the avoidance of doubt, by delivering any notices required to be delivered in connection with the prepayment, repayment or redemption of any such financial indebtedness in accordance with the relevant documentation or one or more conditional notices of redemption to holders of the Bonds in accordance with the indenture governing the Bonds)) in connection with the satisfaction and discharge of all financial indebtedness of the Target Companies). For the avoidance of doubt, the parties acknowledge and agree that any delay or failure on the part of the Management Shareholders in performing their obligations under this clause 5.10 shall not defer or entitle the Purchaser to defer Completion or otherwise excuse the Purchaser to comply with its obligations to proceed to Completion. The parties further acknowledge and agree that, to the extent that the provisions of this clause 5.10 require the Management Shareholders to procure that the financial statements of the Target Group will be converted from UK GAAP and restated in accordance with US GAAP, the costs and expenses of such conversion and restatement (including any costs incurred by the Target Group in engaging the auditors of the Target Group to undertake such conversion and restatement) will be borne directly by the Purchaser. 5.11 The parties acknowledge and agree that as the Shareholder Loan Amount will as at Completion exceed the Net Equity Value, the Seller intends to take certain steps after the date of this Agreement and on or prior to Completion to adjust the Shareholder Loan Amount to ensure that, on Completion, the Shareholder Loan Amount is equal to the Net Equity Value less £1.00 (such adjusted amount, the “Adjusted Shareholder Loan Amount”), and the Purchaser agrees to all such steps (including waiver) being taken provided that the taking of such steps does not give rise to any detriment to the Purchaser or to the Target Group. The Seller shall provide the Purchaser with reasonable notice of all such steps proposed to be taken and shall not take any such steps without the consent of the Purchaser Buyer (such consent not to be unreasonably ~~withheld or delayed~~withheld)~~. 5.12 To the extent that interest has accrued but has not yet been paid on the Shareholder Loan or as the case may be the Shareholder Loan Notes, and prior to the Completion Date~~, none of the ~~following have occurred~~Target Group Companies shall: (ai) ~~the Company and/or SubCo (as relevant) have been issued with a valid direction from HMRC~~ make any alteration to ~~pay interest on the Shareholder Loan~~ its memorandum or ~~as the case may be the Shareholder Loan Notes free from withholding~~ articles of association or ~~deduction of tax~~any other document or agreement establishing, evidencing or relating to its constitution; or (bii) alter the nature or scope of its business or operations in ~~the case of the Shareholder Loan Notes, the Shareholder Loan Notes have been listed on the Channel Islands Securities Exchange~~any material respect; or (ciii) ~~some other exemption from withholding or deduction of UK income tax applies to the interest payable on the Shareholder Loan or~~ manage its business otherwise than in accordance with its business and trading policies and practice currently carried on, except as ~~the case~~ may be necessary to comply with any legislative changes; or (iv) enter into any agreement or arrangement or permit any action whereby another company becomes its subsidiary or subsidiary undertaking; or (v) enter into any transaction other than on arms' length terms and for full and proper consideration; or (vi) acquire (whether by one transaction or by a series of transactions) the ~~Shareholder Loan Notes~~whole or a substantial or material part of the business, undertaking or assets of any other person; or (vii) dispose of (whether by one transaction or by a series of transaction and whether or not in the ~~Seller and~~ ordinary course of business) the ~~Management Shareholders shall~~ whole or ~~shall procure that necessary steps are taken~~ any substantial or material part of its business, undertaking or (except in the ordinary course of business) any other of its assets (save as disclosed in the Disclosure Letter); or (viii) incur or agree to ~~permit~~ incur any capital expenditure in excess of (Euro) 100,000 (other than capital expenditure committed and/or forecast as set out in the ~~Company~~ Disclosure Letter); or (ix) other than in the ordinary course of business and/or ~~SubCo (as the case may be)~~ pursuant to ~~make payments~~ existing funding arrangements take any loans, borrowings or other form of funding or financial facility or assistance, or enter into any foreign exchange contracts, interest rate swaps, collars, guarantees or agreements or other interest rate instruments or any contracts or arrangements relating to derivatives or differences, or in respect of ~~such interest without~~ which the financial outcome is to any ~~withholding~~ extent dependent upon future movements in an index or ~~deduction~~ rate of ~~tax.~~currency exchange or interest, or in the price of any securities or commodities ; or ~~5.13 In~~ (x) grant any loans or other financial facilities or assistance to or any guarantees or indemnities for the ~~case~~ benefit of ~~clause 5.12(c)~~ any person or ~~where steps are otherwise taken under clause 5.12 that are not within clause 5.12(a)~~ create or allow to subsist any mortgage, charge or other Encumbrance over the whole or any part of its undertaking, property or assets (~~b), no steps shall be taken by~~ other than any disclosed in the ~~Seller, the Management Shareholders~~ Disclosure Letter or ~~the Company without obtaining the consent~~ pursuant to an extension of the Purchaser, such consent not to be unreasonably withheld or delayed. 5.14 It is the expectation of the parties that (i) if one of the matters referred to in clauses 5.12(a) or (b) has occurred; or (ii) the Purchaser’s consent is given in accordance with clause 5.13 to a particular course of action and the action as consented to is implemented accordingly, then time period allowed for payment of interest on the Shareholder Loan and/or Shareholder Loan Notes will not be subject to withholding tax and the Purchaser shall be obliged to procure the making of the payment referred to in clause 6.2(b) without withholding or deduction of tax. 5.15 The Purchaser shall: (a) take any action reasonably requested by the Seller and/or the Management Shareholders; and/or (b) give the Seller and/or the Management Shareholders such reasonable assistance, as may be required for the Seller and the Management Shareholders to take any steps in accordance with clause 5.12 provided that, for the avoidance of doubt, all out-of-pocket costs and expenses incurred by any Target Company and (subject to the prior consent of the Seller, such consent not to be unreasonably withheld or delayed) all reasonable and properly incurred out of pocket costs and expenses incurred by the Purchaser creditors in respect of sums due in the normal course of business); or (xi) enter into any ~~step taken in accordance with clause 5.12 shall be~~ joint venture, partnership or agreement or arrangement for the ~~sole account~~ sharing of profits or assets outside the ~~Seller. Without prejudice to the foregoing~~ordinary course of business currently carried on; or (xii) enter into any new death, any such costs and expenses incurred by the Purchaser shall upon production of a valid invoice not later than five (5) Business Days prior to the Completion Date be set off against the sum payable to the Seller at Completionretirement, ~~and~~profit sharing, bonus, share option, share incentive or other scheme for the ~~avoidance~~ benefit of ~~doubt,~~ any such costs and expenses incurred by the Target Companies shall be Transaction Fees. 5.16 Notwithstanding any action taken by the Seller under clause 5.12, if the Company and/or SubCo is required by law to of its officers or employees or make any withholdings or deductions in respect of the Shareholder Loan or the Shareholder Loan Notes (whether by reason of the failure to receive a valid direction from HMRC, any change in law prior to Completion or otherwise) the Company and/or SubCo shall be permitted to make such deduction or withholding as is required and shall not be required to make any additional payments in respect of the Shareholder Loan or the Shareholder Loan Notes, notwithstanding any provision to the contrary contained within the Shareholder Loan or the Shareholder Loan Notes or otherwise agreed between the parties to such instruments. 5.17 The parties acknowledge and agree that if there is a change of law relating to withholding tax in the period prior to Completion, the Seller may be required to take certain steps in accordance with provisions of clauses 5.12(c) and 5.13 provided however that such steps shall be required to be taken prior to the Completion Date and Completion shall not be deferred by reason of any such steps required or proposed to be taken. 5.18 If acting reasonably the Seller and the Purchaser determine that the steps taken under clauses 5.12 to 5.17 will give rise to detriment to the Purchaser then the Seller shall be entitled to set-off against any payment due from the Purchaser to the Seller under this Agreement an amount equal to the net present value of the cost of the reasonably foreseeable detriment, such value to be determined and agreed by the Seller and the Purchaser acting reasonably and in good faith. 5.19 The Management Shareholders and the Company undertake to the Seller and the Purchaser to procure that each member of the Target Group will comply with its obligations to provide information to, and consult with (as the case may be): (i) the employees of the Target Group; (ii) any relevant employee body of the employees of the Target Group; or (iii) the appropriate representatives of the employees of the Target Group variation (including, but without limitation, any increase in the ~~European Works Council~~rates of contribution) to any such existing scheme or effect any key man insurance (but allowing new members to be added to any existing schemes); or (xiii) commence, ~~concerning~~ compromise or discontinue any legal or arbitration proceedings having a value of more than (Euro) 150,000 (other than routine debt collection and/or as set out in the ~~Proposed Transaction and~~ Disclosure Letter); or (xiv) prematurely repay or prepay any loan, borrowings or other financial facilities or assistance made available to it having a value of more than (Euro) 200,000 (other than as set out in the ~~potential impact~~ Disclosure Letter); or (xv) terminate the employment or office of any of its directors, officers, consultants or Senior Executives or appoint any new director, officer or senior employee or consultant or materially alter the ~~Proposed Transaction on~~ terms of employment or engagement of any director, senior employee or consultant with a salary of (Euro) 150,000 or more (other than as set out in the ~~employees~~ Disclosure Letter); or (xvi) declare, make or pay any dividend or distribution (whether of capital or of profits) other than as set out in the ~~Target Group.~~Disclosure Letter; or ~~5.20 In order~~ (xvii) make or permit any material amendment, variation, deletion, addition, renewal or extension to ~~assist each member~~ or of, or terminate or give any notice or intimation of ~~the Target Group~~ termination of, any material contract or arrangement or breach or fail to comply with ~~its obligations in clause 5.19, as soon as reasonably practicable following a request from~~ the ~~Management Shareholders~~ terms of any contract or ~~the Company (such request being reasonable~~ arrangement which is material in the context of the ~~obligations described~~ Target Group taken as a whole; or (xviii) (other than in ~~clause 5.19)~~the course of conducting the business as currently operated) pay any remuneration, ~~the Purchaser shall provide the relevant member~~ fee or other sum to any Vendor, any person connected with or controlled by any of the ~~Target Group with such details~~ Vendors (other than remuneration properly accrued due or reimbursement of ~~its proposals~~business expenses properly incurred, ~~if any~~in each case as disclosed in the Disclosure Letter or of a value of (Euro) 150,000 or less, ~~that may affect~~ or as disclosed in the ~~employees~~ Disclosure Letter); or (xix) enter into any agreement relating to or create any encumbrance or third party rights over any of ~~that Target Company following Completion. The parties shall update~~ the ~~Seller from time~~ Properties or any rights appurtenant to ~~time~~ any of ~~progress~~ them; or (xx) grant any right, title or interest in ~~relation~~ or to the ~~consultation. 5.21 In furtherance of clauses 5.19 and 5.20, and subject to compliance by the Purchaser with its obligations under clause 5.20, the Management Shareholders will:~~Business IP; or (axxi) ~~promptly notify the Purchaser~~ maintain and pay all renewal fees in respect of any material communication received from any relevant employee body of the employees of the Target Group or the appropriate representatives of the employees of the Target Group (including, without limitation, the European Works Council)registered business IP; ~~and~~or (bxxii) ~~provide the Purchaser with details of the Target Group’s proposed strategy for complying with the obligations described in clause 5.19, including providing the Purchaser with copies of~~ enter into any ~~communications intended~~ agreement or obligation to ~~be disseminated as part of information and consultation at such time as will~~ do anything prohibited by clauses 4.1(c)(i) to the extent practicable allow the Purchaser and the Purchaser’s legal advisers a reasonable opportunity to provide comments on such communications and will keep the Purchaser informed of all material devel4.1(c)(xxi)

Appears in 1 contract

Sources: Agreement for the Sale and Purchase of Shares (Gencorp Inc)

PERIOD TO COMPLETION. ~~5.1 Pending Completion, the Management Shareholders undertake~~ 4.1 ▇▇▇▇▇▇ undertakes to the Purchaser to procure (insofar as the Management Shareholders are able to do so) that: (i) the business of the Company; and (ii) the business of each other Target Company is conducted in accordance with applicable laws and in the ordinary and usual course and shall take all such steps as are reasonably required to protect and preserve the business and assets of each Target Company and to maintain that business as a going concern and with a view to profit. 5.2 Without prejudice to the generality of clause 5.1, the Management Shareholders undertake to the Purchaser to procure (insofar as the Management Shareholders are reasonably able to do so) that the Company shall, and shall procure that each Target Company shall, not effect or undertake any matter set out in Schedule 2 in the period from the date of this Agreement to the Completion Date without the prior approval of the Purchaser (such approval not to be unreasonably withheld or delayed). 5.3 The Seller shall not, if approval for such matter is requested, approve any proposed action of a Management Shareholder of which it has prior notice if it is aware that such action would breach either of clauses 5.1 or 5.2. 5.4 The Seller shall procure that any director of any Target Company that is an officer, employee or director of the Seller, Terra Firma or any Related Person of either of the foregoing, or any director that is a nominee company of either the Seller, Terra Firma or any Related Person of either of the foregoing, shall not, subject to that director complying with his or her fiduciary duties and all applicable law and regulatory requirements, approve any proposed action of a Management Shareholder of which it has prior notice if the relevant director is aware that such action would breach either of clauses 5.1 or 5.2. 5.5 A Management Shareholder shall notify the Purchaser as soon as reasonably practicable if he becomes aware of any matter, fact or circumstance which constitutes a breach of either of clauses 5.1 or 5.2 prior to Completion. 5.6 On the Completion Statement Date, the Seller shall provide to the Purchaser the Completion Statement (on the basis that its contents are calculations made in good faith and without liability save in respect of fraud). 5.7 On the date of this Agreement, each Management Shareholder shall deliver to the Seller’s Solicitors: (a) a stock transfer form in the name of the Company in respect of all the SubCo Shares held by that Management Shareholder, duly executed by that Management Shareholder but undated; (b) a share certificate relating to the SubCo Shares held by that Management Shareholder or an indemnity in respect of any lost certificates; (c) a power of attorney executed by that Management Shareholder to enable the Company to exercise all voting and other rights attached to the SubCo Shares held by that Management Shareholder from Completion pending registration of the transfer thereof; (d) a counterpart of the Management Shareholder Waiver Letter signed by each Management Shareholder, and each Management Shareholder irrevocably and unconditionally authorises the Seller’s Solicitors to date such documents on the Completion Date and to deliver such documents to the Purchaser at Completion. 5.8 On the date of this Agreement, the Management Shareholders shall deliver to the Purchaser: (a) a counterpart of the Disclosure Letter signed by or on behalf of each Management Shareholder, and the Purchaser shall deliver to the Management Shareholders a countersigned copy of the Disclosure Letter duly signed by the Purchaser; (b) a counterpart of the Management Warranty Deed and the Management Tax Covenant signed by or on behalf of each Management Shareholder, and the Purchaser shall deliver to the Management Shareholders a countersigned copy of the Management Warranty Deed and the Management Tax Covenant duly signed by the Purchaser; and (c) a counterpart of the Management Escrow Agreement signed by each Management Shareholder. 5.9 On the date of this Agreement: (a) the Seller shall deliver to the Purchaser, a certified copy of the minutes of a meeting of the directors of the Seller resolving that the Seller should enter into this Agreement; (b) the Purchaser shall deliver to the Seller, a certified copy of the minutes of a meeting of the directors of the Purchaser resolving that the Purchaser should enter into this Agreement; (c) the Purchaser Guarantor shall deliver to the Seller a certified copy of the minutes of a meeting of the directors of the Purchaser Guarantor approving the execution by the Purchaser Guarantor of this Agreement; and (d) the Purchaser shall deliver to the Management Shareholders a counterpart of the Management Escrow Agreement duly signed by the Purchaser. 5.10 Subject to applicable law, prior to the date of Completion, the Management Shareholders shall, at the sole cost of the Purchaser, use reasonable efforts to, and shall use reasonable efforts to cause each Target Company and each of their respective directors, officers, employees, agents and advisers (including legal and accounting advisers provided that all advisers’ costs shall be for the sole account of and payable by the Purchaser) to use reasonable efforts to, cooperate with the Purchaser (including (a) (i) providing any information, documents, agreements, consents, comfort letters, certifications and representations reasonably requested by the Purchaser, its legal advisors and independent accountants, its financing sources or investment banks or their legal advisers (which, for the avoidance of doubt, shall include all documentation and other information required under applicable “know your customer” and anti-money laundering rules and regulations), and (ii) participating in a reasonable number of meetings and conference calls with prospective lenders and investors, road shows, due diligence sessions, drafting sessions and sessions with rating agencies and preparation of the materials related to such meetings, sessions, conference calls and road shows, and (iii) assisting in the preparation of a customary confidential information memorandum or other offering document, in each case, in connection with the syndication of the debt, the financing of the transactions contemplated by this Agreement, including any public or private offering or placement of debt or equity securities (which, for the avoidance of doubt, may include an offering of secured high-yield debt securities under Rule 144A of the U.S. Securities Act of 1933, as amended), used to finance the consummation of the transactions contemplated by this Agreement, and (b) enabling the satisfaction and discharge of all financial indebtedness of the Target Companies and all Encumbrances which have been granted by any Target Company (including, without limitation, the revolving credit facility agreement dated 24 May 2011 (the “RCF”), the indenture relating to the Bonds, and the release of security interests in the collateral securing the Bonds and/or the RCF, in each case on the date of Completion PROVIDED that it is permissible to give notice to repay or redeem on the basis that notice can be given on a conditional basis, the condition being Completion occurring and that there is sufficient time prior to Completion and following satisfaction of the Merger Condition to give such notice(s) (including, for the avoidance of doubt, by delivering any notices required to be delivered in connection with the prepayment, repayment or redemption of any such financial indebtedness in accordance with the relevant documentation or one or more conditional notices of redemption to holders of the Bonds in accordance with the indenture governing the Bonds)) in connection with the satisfaction and discharge of all financial indebtedness of the Target Companies). For the avoidance of doubt, the parties acknowledge and agree that any delay or failure on the part of the Management Shareholders in performing their obligations under this clause 5.10 shall not defer or entitle the Purchaser to defer Completion or otherwise excuse the Purchaser to comply with its obligations to proceed to Completion. The parties further acknowledge and agree that, to the extent that the provisions of this clause 5.10 require the Management Shareholders to procure that the financial statements of the Target Group will be converted from UK GAAP and restated in accordance with US GAAP, the costs and expenses of such conversion and restatement (including any costs incurred by the Target Group in engaging the auditors of the Target Group to undertake such conversion and restatement) will be borne directly by the Purchaser. 5.11 The parties acknowledge and agree that as the Shareholder Loan Amount will as at Completion exceed the Net Equity Value, the Seller intends to take certain steps after the date of this Agreement and on or prior to Completion to adjust the Shareholder Loan Amount to ensure that, on Completion, the Shareholder Loan Amount is equal to the Net Equity Value less £1.00 (such adjusted amount, the “Adjusted Shareholder Loan Amount”), and the Purchaser agrees to all such steps (including waiver) being taken provided that the taking of such steps does not give rise to any detriment to the Purchaser or to the Target Group. The Seller shall provide the Purchaser with reasonable notice of all such steps proposed to be taken and shall not take any such steps without the consent of the Purchaser (such consent not to be unreasonably withheld or delayed). 5.12 To the extent that interest has accrued but has not yet been paid on the Shareholder Loan or as the case may be the Shareholder Loan Notes, and prior to the Completion Date, none of the following have occurred: (a) the Company and/or SubCo (as relevant) have been issued with a valid direction from HMRC to pay interest on the Shareholder Loan or as the case may be the Shareholder Loan Notes free from withholding or deduction of tax; or (b) in the case of the Shareholder Loan Notes, the Shareholder Loan Notes have been listed on the Channel Islands Securities Exchange; or (c) some other exemption from withholding or deduction of UK income tax applies to the interest payable on the Shareholder Loan or as the case may be the Shareholder Loan Notes, the Seller and the Management Shareholders shall or shall procure that necessary steps are taken to permit the Company and/or SubCo (as the case may be) to make payments in respect of such interest without any withholding or deduction of tax. 5.13 In the case of clause 5.12(c) or where steps are otherwise taken under clause 5.12 that are not within clause 5.12(a) or (b), no steps shall be taken by the Seller, the Management Shareholders or the Company without obtaining the consent of the Purchaser, such consent not to be unreasonably withheld or delayed. 5.14 It is the expectation of the parties that (i) if one of the matters referred to in clauses 5.12(a) or (b) has occurred; or (ii) the Purchaser’s consent is given in accordance with clause 5.13 to a particular course of action and the action as consented to is implemented accordingly, then payment of interest on the Shareholder Loan and/or Shareholder Loan Notes will not be subject to withholding tax and the Purchaser shall be obliged to procure the making of the payment referred to in clause 6.2(b) without withholding or deduction of tax. 5.15 The Purchaser shall: (a) take any action reasonably requested by the Seller and/or the Management Shareholders; and/or (b) give the Seller and/or the Management Shareholders such reasonable assistance, as may be required for the Seller and the Management Shareholders to take any steps in accordance with clause 5.12 provided that, for the avoidance of doubt, all out-of-pocket costs and expenses incurred by any Target Company and (subject to the prior consent of the Seller, such consent not to be unreasonably withheld or delayed) all reasonable and properly incurred out of pocket costs and expenses incurred by the Purchaser in respect of any step taken in accordance with clause 5.12 shall be for the sole account of the Seller. Without prejudice to the foregoing, any such costs and expenses incurred by the Purchaser shall upon production of a valid invoice not later than five (5) Business Days prior to the Completion Date be set off against the sum payable to the Seller at Completion, and, for the avoidance of doubt, any such costs and expenses incurred by the Target Companies shall be Transaction Fees. 5.16 Notwithstanding any action taken by the Seller under clause 5.12, if the Company and/or SubCo is required by law to make any withholdings or deductions in respect of the Shareholder Loan or the Shareholder Loan Notes (whether by reason of the failure to receive a valid direction from HMRC, any change in law prior to Completion or otherwise) the Company and/or SubCo shall be permitted to make such deduction or withholding as is required and shall not be required to make any additional payments in respect of the Shareholder Loan or the Shareholder Loan Notes, notwithstanding any provision to the contrary contained within the Shareholder Loan or the Shareholder Loan Notes or otherwise agreed between the parties to such instruments. 5.17 The parties acknowledge and agree that if there is a change of law relating to withholding tax in the period prior to Completion, the Seller may be required to take certain steps in accordance with provisions of clauses 5.12(c) and 5.13 provided however that such steps shall be required to be taken prior to the Completion Date and Completion shall not be deferred by reason of any such steps required or proposed to be taken. 5.18 If acting reasonably the Seller and the Purchaser determine that the steps taken under clauses 5.12 to 5.17 will give rise to detriment to the Purchaser then the Seller shall be entitled to set-off against any payment due from the Purchaser to the Seller under this Agreement an amount equal to the net present value of the cost of the reasonably foreseeable detriment, such value to be determined and agreed by the Seller and the Purchaser acting reasonably and in good faith. 5.19 The Management Shareholders and the Company undertake to the Seller and the Purchaser RoweCom to procure that each member of the Target Group will comply with its obligations to provide information to, and consult with (as the case may be): (i) the employees of the Target Group; (ii) any relevant employee body of the employees of the Target Group; or (iii) the appropriate representatives of the employees of the Target Group (including, ~~without limitation~~in respect of each of the Asset Businesses, the European Works Council), concerning the Proposed Transaction and the potential impact of the Proposed Transaction on the employees of the Target Group. 5.20 In order to assist each member of the Target Group to comply with its obligations relevant Asset Vendor) shall unless otherwise agreed in clause 5.19, as soon as reasonably practicable following a request from the Management Shareholders or the Company (such request being reasonable in the context of the obligations described in clause 5.19), the Purchaser shall provide the relevant member of the Target Group with such details of its proposals, if any, that may affect the employees of that Target Company following Completion. The parties shall update the Seller from time to time of progress in relation to the consultation. 5.21 In furtherance of clauses 5.19 and 5.20, and subject to compliance writing by ~~the Purchaser with its obligations under clause 5.20, the Management Shareholders will:~~RoweCom:- (a) ~~promptly notify~~ operate its business and activities in their usual course and in such a manner between today's date and the ~~Purchaser~~ Completion Date as to ensure that no act or event shall occur during that period which would be reasonably expected to result in a material breach of the Warranties upon their repetition immediately prior to Completion and will not make or institute any material ~~communication received from any relevant employee body~~ changes in its methods of ~~the employees of the Target Group~~ purchase, sale, management, accounting or ~~the appropriate representatives of the employees of the Target Group (including, without limitation, the European Works Council)~~operation during such period; and (b) ~~provide~~ without prejudice to the ~~Purchaser with details~~ generality of the ~~Target Group’s proposed strategy for complying~~ foregoing, comply with each of the ~~obligations described~~ undertakings set out in schedule 5, provided that ▇▇▇▇▇▇ shall not be liable under this clause ~~5.19, including providing the Purchaser with copies of any communications intended to be disseminated as part of information and consultation at such time as will~~ 4.1 to the extent ~~practicable allow~~ that such liability has arisen as a result of any act, omission or direction of the ~~Purchaser~~ RoweCom Group. 4.2 If:- (a) ▇▇▇▇▇▇ is in material breach of any of the Warranties or there occur circumstances, facts, matters or events from time to time subsisting which would constitute a material breach of any of the Warranties or would give rise to a material claim under any of the Indemnities and/or the Tax Deed; or (b) there shall occur any act or event between the date hereof and Completion which would result in a material breach of any of the Warranties were they repeated immediately prior to Completion; or (c) there is any material breach or non-fulfilment by ▇▇▇▇▇▇ of its obligations hereunder, which in any such case is incapable of remedy or, if capable of remedy, is not remedied by ▇▇▇▇▇▇ by the Completion Date or (if earlier) within seven days after notice thereof from RoweCom requiring the same to be remedied then in any such case RoweCom shall be entitled to elect by notice in writing to ▇▇▇▇▇▇ not to complete the purchase of the US Shares and the ~~Purchaser’s legal advisers~~ Asset Businesses in accordance with clause 2.1, in which event this agreement shall automatically terminate save that the rights and liabilities of the parties which have accrued prior to termination under clauses 15, 18, 19, 27 and 29 shall continue to subsist. For the purposes of this clause 4.2, "material" means material in the context of the sale and purchase of the Group as contemplated by this agreement when such sale and purchase of the Group is taken as a ~~reasonable opportunity~~ whole. 4.3 RoweCom shall not be entitled to ~~provide comments~~ exercise its right to not complete under this agreement where the right or claim arises because a customer, employee or publisher notifies the Group or RoweCom or the ▇▇▇▇▇▇ Group or otherwise decides after the Announcement Date that it will cease its business dealings or other relationship with the Group or will decrease the level of business with the Group or change the terms on which it does business with the Group. 4.4 Pending Completion RoweCom and any person authorised by it shall be given full access to the Properties and to all the books and records of each member of the Group by prior appointment during normal business hours and without causing undue disruption to the business of the ▇▇▇▇▇▇ Group or the Group and the directors and employees of the ▇▇▇▇▇▇ Group and each member of the Group shall be instructed to give promptly all such ~~communications~~ information and explanations as RoweCom or any such person may reasonably request. 4.5 ▇▇▇▇▇▇ undertakes to RoweCom that it will ~~keep~~ promptly disclose in writing to RoweCom any matter or thing which becomes known to it after the ~~Purchaser informed~~ date hereof and prior to Completion which:- (a) is inconsistent with any of the Warranties were they repeated at all ~~material devel~~times prior to Completion by reference to the facts and circumstances then subsisting; or (b) would be likely to give rise to a claim under the Indemnities and/or the Tax Deed. 4.6 For the avoidance of doubt, in the event that RoweCom exercises its right to not complete the sale and purchase of the Group under clause 4.2 such exercise of that right shall be the only remedy of RoweCom and the Purchasers under this agreement and RoweCom shall have no other rights under the terms of the agreement including any right to damages or recovery of costs save in respect of fraud or fraudulent concealment.

Appears in 1 contract

Sources: Agreement for the Sale and Purchase of the Subscription Business (Rowecom Inc)

PERIOD TO COMPLETION. 5.1 Pending Completion, the Management Shareholders undertake to the Purchaser to procure (insofar as the Management Shareholders are able to do so) that: (i) the business of the Company; and (ii) the business of each other Target Company is conducted in accordance 4.1 Other than with applicable laws and in the ordinary and usual course and shall take all such steps as are reasonably required to protect and preserve the business and assets of each Target Company and to maintain that business as a going concern and with a view to profit. 5.2 Without prejudice to the generality of clause 5.1, the Management Shareholders undertake to the Purchaser to procure (insofar as the Management Shareholders are reasonably able to do so) that the Company shall, and shall procure that each Target Company shall, not effect or undertake any matter set out in Schedule 2 in the period from the date of this Agreement to the Completion Date without the prior approval of the Purchaser (such approval not to be unreasonably withheld or delayed). 5.3 The Seller shall not, if approval for such matter is requested, approve any proposed action of a Management Shareholder of which it has prior notice if it is aware that such action would breach either of clauses 5.1 or 5.2. 5.4 The Seller shall procure that any director of any Target Company that is an officer, employee or director of the Seller, Terra Firma or any Related Person of either of the foregoing, or any director that is a nominee company of either the Seller, Terra Firma or any Related Person of either of the foregoing, shall not, subject to that director complying with his or her fiduciary duties and all applicable law and regulatory requirements, approve any proposed action of a Management Shareholder of which it has prior notice if the relevant director is aware that such action would breach either of clauses 5.1 or 5.2. 5.5 A Management Shareholder shall notify the Purchaser as soon as reasonably practicable if he becomes aware of any matter, fact or circumstance which constitutes a breach of either of clauses 5.1 or 5.2 prior to Completion. 5.6 On the Completion Statement Date, the Seller shall provide to the Purchaser the Completion Statement (on the basis that its contents are calculations made in good faith and without liability save in respect of fraud). 5.7 On the date of this Agreement, each Management Shareholder shall deliver to the Seller’s Solicitors: (a) a stock transfer form in the name of the Company in respect of all the SubCo Shares held by that Management Shareholder, duly executed by that Management Shareholder but undated; (b) a share certificate relating to the SubCo Shares held by that Management Shareholder or an indemnity in respect of any lost certificates; (c) a power of attorney executed by that Management Shareholder to enable the Company to exercise all voting and other rights attached to the SubCo Shares held by that Management Shareholder from Completion pending registration of the transfer thereof; (d) a counterpart of the Management Shareholder Waiver Letter signed by each Management Shareholder, and each Management Shareholder irrevocably and unconditionally authorises the Seller’s Solicitors to date such documents on the Completion Date and to deliver such documents to the Purchaser at Completion. 5.8 On the date of this Agreement, the Management Shareholders shall deliver to the Purchaser: (a) a counterpart of the Disclosure Letter signed by or on behalf of each Management Shareholder, and the Purchaser shall deliver to the Management Shareholders a countersigned copy of the Disclosure Letter duly signed by the Purchaser; (b) a counterpart of the Management Warranty Deed and the Management Tax Covenant signed by or on behalf of each Management Shareholder, and the Purchaser shall deliver to the Management Shareholders a countersigned copy of the Management Warranty Deed and the Management Tax Covenant duly signed by the Purchaser; and (c) a counterpart of the Management Escrow Agreement signed by each Management Shareholder. 5.9 On the date of this Agreement: (a) the Seller shall deliver to the Purchaser, a certified copy of the minutes of a meeting of the directors of the Seller resolving that the Seller should enter into this Agreement; (b) the Purchaser shall deliver to the Seller, a certified copy of the minutes of a meeting of the directors of the Purchaser resolving that the Purchaser should enter into this Agreement; (c) the Purchaser Guarantor shall deliver to the Seller a certified copy of the minutes of a meeting of the directors of the Purchaser Guarantor approving the execution by the Purchaser Guarantor of this Agreement; and (d) the Purchaser shall deliver to the Management Shareholders a counterpart of the Management Escrow Agreement duly signed by the Purchaser. 5.10 Subject to applicable law, prior to the date of Completion, the Management Shareholders shall, at the sole cost of the Purchaser, use reasonable efforts to, and shall use reasonable efforts to cause each Target Company and each of their respective directors, officers, employees, agents and advisers (including legal and accounting advisers provided that all advisers’ costs shall be for the sole account of and payable by the Purchaser) to use reasonable efforts to, cooperate with the Purchaser (including (a) (i) providing any information, documents, agreements, consents, comfort letters, certifications and representations reasonably requested by the Purchaser, its legal advisors and independent accountants, its financing sources or investment banks or their legal advisers (which, for the avoidance of doubt, shall include all documentation and other information required under applicable “know your customer” and anti-money laundering rules and regulations), and (ii) participating in a reasonable number of meetings and conference calls with prospective lenders and investors, road shows, due diligence sessions, drafting sessions and sessions with rating agencies and preparation of the materials related to such meetings, sessions, conference calls and road shows, and (iii) assisting in the preparation of a customary confidential information memorandum or other offering document, in each case, in connection with the syndication of the debt, the financing of the transactions contemplated by this Agreement, including any public or private offering or placement of debt or equity securities (which, for the avoidance of doubt, may include an offering of secured high-yield debt securities under Rule 144A of the U.S. Securities Act of 1933, as amended), used to finance the consummation of the transactions contemplated by this Agreement, and (b) enabling the satisfaction and discharge of all financial indebtedness of the Target Companies and all Encumbrances which have been granted by any Target Company (including, without limitation, the revolving credit facility agreement dated 24 May 2011 (the “RCF”), the indenture relating to the Bonds, and the release of security interests in the collateral securing the Bonds and/or the RCF, in each case on the date of Completion PROVIDED that it is permissible to give notice to repay or redeem on the basis that notice can be given on a conditional basis, the condition being Completion occurring and that there is sufficient time prior to Completion and following satisfaction of the Merger Condition to give such notice(s) (including, for the avoidance of doubt, by delivering any notices required to be delivered in connection with the prepayment, repayment or redemption of any such financial indebtedness in accordance with the relevant documentation or one or more conditional notices of redemption to holders of the Bonds in accordance with the indenture governing the Bonds)) in connection with the satisfaction and discharge of all financial indebtedness of the Target Companies). For the avoidance of doubt, the parties acknowledge and agree that any delay or failure on the part of the Management Shareholders in performing their obligations under this clause 5.10 shall not defer or entitle the Purchaser to defer Completion or otherwise excuse the Purchaser to comply with its obligations to proceed to Completion. The parties further acknowledge and agree that, to the extent that the provisions of this clause 5.10 require the Management Shareholders to procure that the financial statements of the Target Group will be converted from UK GAAP and restated in accordance with US GAAP, the costs and expenses of such conversion and restatement (including any costs incurred by the Target Group in engaging the auditors of the Target Group to undertake such conversion and restatement) will be borne directly by the Purchaser. 5.11 The parties acknowledge and agree that as the Shareholder Loan Amount will as at Completion exceed the Net Equity Value, the Seller intends to take certain steps after the date of this Agreement and on or prior to Completion to adjust the Shareholder Loan Amount to ensure that, on Completion, the Shareholder Loan Amount is equal to the Net Equity Value less £1.00 (such adjusted amount, the “Adjusted Shareholder Loan Amount”), and the Purchaser agrees to all such steps (including waiver) being taken provided that the taking of such steps does not give rise to any detriment to the Purchaser or to the Target Group. The Seller shall provide the Purchaser with reasonable notice of all such steps proposed to be taken and shall not take any such steps without the written consent of the ~~Purchaser~~ Buyer (such consent not to be unreasonably withheld or delayed)~~. 5.12 To the extent that interest has accrued but has not yet been paid on the Shareholder Loan or as the case may be the Shareholder Loan Notes~~, and prior to the Completion Date, none of the following have occurred: (a) the Company and/or SubCo (as relevant) have been issued with a valid direction from HMRC to pay interest on the Shareholder Loan or as the case may be the Shareholder Loan Notes free from withholding or deduction of tax; or (b) in the case of the Shareholder Loan Notes, the Shareholder Loan Notes have been listed on the Channel Islands Securities Exchange; or (c) some other exemption from withholding or deduction of UK income tax applies to the interest payable on the Shareholder Loan or as the case may be the Shareholder Loan Notespending Completion, the Seller ~~and~~ undertakes with the ~~Management Shareholders shall or shall~~ Buyer to procure that ~~necessary steps are taken to permit the~~ each Group Company ~~and/or SubCo~~ (other than Corus Tianjin) shall, and undertakes (so far as ~~the case may be~~it is reasonably able) ~~to make payments in respect of such interest without any withholding or deduction of tax. 5.13 In the case of clause 5.12(c) or where steps are otherwise taken under clause 5.12~~ that are not within clause 5.12(a) or (b), no steps shall be taken by the Seller, the Management Shareholders or the Company without obtaining the consent of the Purchaser, such consent not to be unreasonably withheld or delayed. 5.14 It is the expectation of the parties that (i) if one of the matters referred to in clauses 5.12(a) or (b) has occurred; or (ii) the Purchaser’s consent is given in accordance with clause 5.13 to a particular course of action and the action as consented to is implemented accordingly, then payment of interest on the Shareholder Loan and/or Shareholder Loan Notes will not be subject to withholding tax and the Purchaser shall be obliged to procure the making of the payment referred to in clause 6.2(b) without withholding or deduction of tax. 5.15 The Purchaser Corus Tianjin shall: (a) operate its business and activities in their ordinary and usual course so as to maintain the Business as a going concern and in accordance in all material respects with the Budget; and (b) comply with each of the undertakings set out in schedule 10, provided that the Seller shall be permitted to effect the Pre-Sale Re-Organisation, take any action requested in writing by the Buyer, and take any action that is required in an emergency or disaster situation to the extent that such action would minimize any adverse impact of such situation on the Business. 4.2 Subject to clause 4.3, the Seller undertakes to the Buyer to procure that it shall, and that the Group Companies and members of the Seller's Group shall, give all such reasonable assistance to the Buyer in raising equity and debt financing for the acquisition of the Shares as the Buyer reasonably requests including, without limitation, and in addition to the delivery of the Second 2004 and 2005 IFRS Audited Accounts and the 2005 and 2006 IFRS Unaudited Quarterly Accounts: (a) participating in meetings, presentations, drafting sessions, management presentation sessions, "roadshows", sessions with rating agencies, and due diligence sessions; (b) assisting in the preparation of offering documentation and materials for rating agency presentations; (c) assisting in any tax or other structural planning; (d) facilitating security arrangements and the pledging of collateral; and (e) obtaining accountant's comfort letters, legal opinions, surveys and title insurance, each as reasonably requested by the Buyer. 4.3 The obligations of the Seller ~~and/or~~ in clause 4.2 above shall be subject to the ~~Management Shareholders; and/or~~Buyer: (a) only requesting such assistance if it is not reasonably possible for the Buyer to take such action itself; (b) ~~give~~ indemnifying the Seller ~~and/or~~ (for itself and on behalf of the ~~Management Shareholders such reasonable assistance, as may be required~~ Seller's Group) for any liability the Seller and any member of the ~~Management Shareholders~~ Seller's Group has to ~~take any steps in accordance with clause 5.12 provided that,~~ third parties as a result of the Seller providing (or procuring the provision of) such assistance; and (c) reimbursing the Seller for ~~the avoidance of doubt,~~ all reasonable documented out-of-pocket ~~costs and~~ expenses (excluding internal overheads) incurred by ~~any Target Company~~ the Seller and ~~(subject to the prior consent of~~ the Seller, 's Group in providing such ~~consent not to be unreasonably withheld or delayed) all reasonable and properly incurred out of pocket~~ assistance together with any irrecoverable VAT provided that any costs and expenses incurred by the ~~Purchaser~~ auditors in ~~respect~~ connection with the preparation and delivery of ~~any step taken in accordance with clause 5.12~~ the 2005 and 2006 IFRS Unaudited Quarterly Accounts, the First 2004 and 2005 IFRS Audited Accounts and the Second 2004 and 2005 IFRS Audited Accounts shall be for the ~~sole~~ account of the Seller. Without prejudice to the foregoing, any such costs and expenses incurred by the Purchaser shall upon production of a valid invoice not later than five (5) Business Days prior to the Completion Date be set off against the sum payable to the Seller at Completion, and, for the avoidance of doubt, any such costs and expenses incurred by the Target Companies shall be Transaction Fees. 5.16 Notwithstanding any action taken by the Seller under clause 5.12, if the Company and/or SubCo is required by law to make any withholdings or deductions in respect of the Shareholder Loan or the Shareholder Loan Notes (whether by reason of the failure to receive a valid direction from HMRC, any change in law prior to Completion or otherwise) the Company and/or SubCo shall be permitted to make such deduction or withholding as is required and shall not be required to make any additional payments in respect of the Shareholder Loan or the Shareholder Loan Notes, notwithstanding any provision to the contrary contained within the Shareholder Loan or the Shareholder Loan Notes or otherwise agreed between the parties to such instruments. 5.17 The parties acknowledge and agree that if there is a change of law relating to withholding tax in the period prior to Completion, the Seller may be required to take certain steps in accordance with provisions of clauses 5.12(c) and 5.13 provided however that such steps shall be required to be taken prior to the Completion Date and Completion shall not be deferred by reason of any such steps required or proposed to be taken. 5.18 If acting reasonably the Seller and the Purchaser determine that the steps taken under clauses 5.12 to 5.17 will give rise to detriment to the Purchaser then the Seller shall be entitled to set-off against any payment due from the Purchaser to the Seller under this Agreement an amount equal to the net present value of the cost of the reasonably foreseeable detriment, such value to be determined and agreed by the Seller and the Purchaser acting reasonably and in good faith. 5.19 The Management Shareholders and the Company undertake to the Seller and the Purchaser to procure that each member of the Target Group will comply with its obligations to provide information to, and consult with (as the case may be): (i) the employees of the Target Group; (ii) any relevant employee body of the employees of the Target Group; or (iii) the appropriate representatives of the employees of the Target Group (including, without limitation, the European Works Council), concerning the Proposed Transaction and the potential impact of the Proposed Transaction on the employees of the Target Group. 5.20 In order to assist each member of the Target Group to comply with its obligations in clause 5.19, as soon as reasonably practicable following a request from the Management Shareholders or the Company (such request being reasonable in the context of the obligations described in clause 5.19), the Purchaser shall provide the relevant member of the Target Group with such details of its proposals, if any, that may affect the employees of that Target Company following Completion. The parties shall update the Seller from time to time of progress in relation to the consultation. 5.21 In furtherance of clauses 5.19 and 5.20, and subject to compliance by the Purchaser with its obligations under clause 5.20, the Management Shareholders will: (a) promptly notify the Purchaser of any material communication received from any relevant employee body of the employees of the Target Group or the appropriate representatives of the employees of the Target Group (including, without limitation, the European Works Council); and (b) provide the Purchaser with details of the Target Group’s proposed strategy for complying with the obligations described in clause 5.19, including providing the Purchaser with copies of any communications intended to be disseminated as part of information and consultation at such time as will to the extent practicable allow the Purchaser and the Purchaser’s legal advisers a reasonable opportunity to provide comments on such communications and will keep the Purchaser informed of all material devel

Appears in 1 contract

Sources: Share Purchase Agreement (Aleris International, Inc.)

PERIOD TO COMPLETION. ~~5.1 Pending Completion~~4.1 Subject to clause 4.2, the ~~Management Shareholders undertake~~ Seller undertakes with the Buyer to ~~the Purchaser to procure~~ exercise all its rights (~~insofar~~ including its votes as ~~the Management Shareholders are able to do so) that: (i) the business of~~ shareholder in the Company~~; and (ii~~) ~~the business of each other Target Company is conducted in accordance with applicable laws and in the ordinary and usual course and shall take all such steps as are reasonably required~~ to protect and preserve the business and assets of each Target Company and to maintain that business as a going concern and with a view to profit. 5.2 Without prejudice to the generality of clause 5.1, the Management Shareholders undertake to the Purchaser to procure (insofar as the Management Shareholders are reasonably able to do so) that the Company shall, and shall procure that each ~~Target~~ Group Company shall: (a) comply with schedule 3 (but only insofar as schedule 3 expressly provides that its terms are applicable to that Group Company), ~~not effect or undertake any matter set out in Schedule 2 in~~ and save as otherwise approved by the ~~period from the date of this Agreement to the Completion Date without the prior approval of the Purchaser~~ Buyer (such approval not to be unreasonably ~~withheld~~ withheld, conditioned or delayed). 5.3 The Seller shall not, if approval for such matter is requested, approve any proposed action of a Management Shareholder of which it has prior notice if it is aware that such action would breach either of clauses 5.1 or 5.2. 5.4 The Seller shall procure that any director of any Target Company that is an officer, employee or director of the Seller, Terra Firma or any Related Person of either of the foregoing, or any director that is a nominee company of either the Seller, Terra Firma or any Related Person of either of the foregoing, shall not, subject to that director complying with his or her fiduciary duties and all applicable law and regulatory requirements, approve any proposed action of a Management Shareholder of which it has prior notice if the relevant director is aware that such action would breach either of clauses 5.1 or 5.2. 5.5 A Management Shareholder shall notify the Purchaser as soon as reasonably practicable if he becomes aware of any matter, fact or circumstance which constitutes a breach of either of clauses 5.1 or 5.2 prior to Completion. 5.6 On the Completion Statement Date, the Seller shall provide to the Purchaser the Completion Statement (on the basis that its contents are calculations made in good faith and without liability save in respect of fraud). 5.7 On the date of this Agreement, each Management Shareholder shall deliver to the Seller’s Solicitors: (a) a stock transfer form in the name of the Company in respect of all the SubCo Shares held by that Management Shareholder, duly executed by that Management Shareholder but undated; (b) ~~a share certificate relating~~ operate its business and activities in the usual course in compliance with all laws and regulations applicable to it which are material to the SubCo Shares held by that Management Shareholder or an indemnity in respect of any lost certificates; (c) a power of attorney executed by that Management Shareholder to enable the Company to exercise all voting and other rights attached to the SubCo Shares held by that Management Shareholder from Completion pending registration conduct of the ~~transfer thereof; (d) a counterpart of~~ business and in substantially the ~~Management Shareholder Waiver Letter signed by each Management Shareholder,~~ same manner as its business has been carried out on and each Management Shareholder irrevocably and unconditionally authorises the Seller’s Solicitors to date such documents on the Completion Date and to deliver such documents to the Purchaser at Completion. 5.8 On before the date of this Agreement, the Management Shareholders shall deliver to the Purchaser: (a) a counterpart of the Disclosure Letter signed by or on behalf of each Management Shareholder, and the Purchaser shall deliver to the Management Shareholders a countersigned copy of the Disclosure Letter duly signed by the Purchaser; (b) a counterpart of the Management Warranty Deed and the Management Tax Covenant signed by or on behalf of each Management Shareholder, and the Purchaser shall deliver to the Management Shareholders a countersigned copy of the Management Warranty Deed and the Management Tax Covenant duly signed by the Purchaseragreement; and (c) ~~a counterpart of the Management Escrow Agreement signed by each Management Shareholder. 5.9 On the date of this Agreement: (a) the Seller shall deliver~~ take all reasonable steps to the Purchaser, a certified copy of the minutes of a meeting of the directors of the Seller resolving that the Seller should enter into this Agreement; (b) the Purchaser shall deliver to the Seller, a certified copy of the minutes of a meeting of the directors of the Purchaser resolving that the Purchaser should enter into this Agreement; (c) the Purchaser Guarantor shall deliver to the Seller a certified copy of the minutes of a meeting of the directors of the Purchaser Guarantor approving the execution by the Purchaser Guarantor of this Agreement; and (d) the Purchaser shall deliver to the Management Shareholders a counterpart of the Management Escrow Agreement duly signed by the Purchaser. 5.10 Subject to applicable law, prior to the date of Completion, the Management Shareholders shall, at the sole cost of the Purchaser, use reasonable efforts to, preserve and ~~shall use reasonable efforts to cause each Target Company~~ protect its business and each of their respective directors, officers, employees, agents and advisers (including legal and accounting advisers provided that all advisers’ costs shall be for the sole account of and payable by the Purchaser) to use reasonable efforts to, cooperate with the Purchaser (including (a) (i) providing any information, documents, agreements, consents, comfort letters, certifications and representations reasonably requested by the Purchaser, its legal advisors and independent accountants, its financing sources or investment banks or their legal advisers (which, for the avoidance of doubt, shall include all documentation and other information required under applicable “know your customer” and anti-money laundering rules and regulations), and (ii) participating in a reasonable number of meetings and conference calls with prospective lenders and investors, road shows, due diligence sessions, drafting sessions and sessions with rating agencies and preparation of the materials related to such meetings, sessions, conference calls and road shows, and (iii) assisting in the preparation of a customary confidential information memorandum or other offering documentassets, in each case, in ~~connection~~ the period between the date of this agreement and the date on which Completion occurs. 4.2 Clause 4.1 shall not apply in respect of and shall not operate so as to restrict or prevent: (a) if Completion has not occurred by the date falling 20 days prior to the Final Maturity Date (as defined in the £350,000,000 Term Loan Facility Agreement), any member of the Group agreeing an amendment to the £350,000,000 Term Loan Facility Agreement in order to extend the maturity date of the term loan made thereunder or entering into a replacement of the £350,000,000 Term Loan Facility Agreement, provided that such amendment and extension or replacement shall be on substantially the same terms as the £350,000,000 Term Loan Facility Agreement and shall not result in any additional costs, expenses or break fees being incurred or payable by the Group (unless otherwise agreed with the syndication of the debt, the financing of the transactions contemplated by this Agreement, including any public or private offering or placement of debt or equity securities (which, for the avoidance of doubt, may include an offering of secured high-yield debt securities under Rule 144A of the U.S. Securities Act of 1933, as amendedBuyer)~~, used to finance the consummation of the transactions contemplated by this Agreement, and~~ ; (b) ~~enabling~~ WPD plc (i) agreeing an amendment to (or a waiver of any term of) the ~~satisfaction~~ £210,000,000 Revolving Credit Facility Agreement and/or the £50,000,000 Term Loan Facility Agreement in order to cure or remedy any default or event of default (howsoever described) that is or may be continuing and/or (ii) if any such amendment is not obtained to cure or remedy any default of event of default (howsoever described), prepaying or repaying all amounts drawn under the £210,000,000 Revolving Credit Facility Agreement and/or the £50,000,000 Term Loan Facility Agreement (and ~~discharge of all financial indebtedness~~ cancelling any such facility so prepaid or repaid) and, if any member of the ~~Target Companies~~ Group so elects, entering into one or more new debt financing arrangements (whether with a third party or a member of the Seller Group) to fund such prepayment or repayment with an aggregate committed amount of not more than the facility or facilities prepaid or repaid and ~~all Encumbrances which have been granted~~ cancelled, provided that (x) any such amendment (or waiver) shall not impose any materially more onerous terms on the Group (or any member of the Group) and shall not result in any additional costs, expenses or break fees being incurred or payable by the Group or (y) any such new debt financing arrangement entered into shall be on materially no worse terms than the facility or facilities prepaid or repaid and cancelled (unless, in any such case, otherwise agreed with the Buyer) provided that it may be a term of such new debt financing arrangement that it shall be repayable immediately following Completion; (c) any matter reasonably undertaken by any ~~Target~~ Group Company or member of the Seller’s Group in an emergency or disaster situation or other serious incident or circumstance (including, without limitation, taking any measures reasonably required as a result of Covid-19 or any other pandemic) with the ~~revolving credit facility agreement dated 24 May 2011~~ bona fide intention of minimising any adverse effect thereof where time is of the essence and seeking the consent of the Buyer might, in the reasonable opinion of the Seller, lead to a material adverse effect on the Group, imminent loss of life, personal injury or destruction of property and provided that the Buyer is promptly notified and kept up to date of such matters; (d) the ~~“RCF”)~~completion or performance of actions which are reasonably necessary to discharge any obligations undertaken pursuant to any legal or regulatory obligation or pursuant to any contract, ~~the indenture~~ arrangement, licence or consent entered into by or relating to the Bonds, and the release of security interests in the collateral securing the Bonds and/or the RCF, in each case on the date of Completion PROVIDED that it is permissible to give notice to repay or redeem on the basis that notice can be given on a conditional basis, the condition being Completion occurring and that there is sufficient time any Group Company prior to Completion and following satisfaction of the Merger Condition to give such notice(s) (including, for the avoidance of doubt, by delivering any notices required to be delivered in connection with the prepayment, repayment or redemption of any such financial indebtedness in accordance with the relevant documentation or one or more conditional notices of redemption to holders of the Bonds in accordance with the indenture governing the Bonds)) in connection with the satisfaction and discharge of all financial indebtedness of the Target Companies). For the avoidance of doubt, the parties acknowledge and agree that any delay or failure on the part of the Management Shareholders in performing their obligations under this clause 5.10 shall not defer or entitle the Purchaser to defer Completion or otherwise excuse the Purchaser to comply with its obligations to proceed to Completion. The parties further acknowledge and agree that, to the extent that the provisions of this clause 5.10 require the Management Shareholders to procure that the financial statements of the Target Group will be converted from UK GAAP and restated in accordance with US GAAP, the costs and expenses of such conversion and restatement (including any costs incurred by the Target Group in engaging the auditors of the Target Group to undertake such conversion and restatement) will be borne directly by the Purchaser. 5.11 The parties acknowledge and agree that as the Shareholder Loan Amount will as at Completion exceed the Net Equity Value, the Seller intends to take certain steps after the date of this ~~Agreement and on~~ agreement; (e) any matter or ~~prior to Completion to adjust~~ action expressly provided for in, permitted, or required by the ~~Shareholder Loan Amount~~ Transaction Documents or the Model, or expenditure provided for in, permitted, or required by the Transaction Documents or the Model; (f) any Permitted Leakage Payment; (g) any matter required in order to ensure that, on Completion, the Shareholder Loan Amount is equal to the Net Equity Value less £1.00 (such adjusted amount, the “Adjusted Shareholder Loan Amount”), and the Purchaser agrees to all such steps (including waiver) being taken provided that the ~~taking of such steps does not give rise~~ Group complies with any law or regulation applicable to ~~any detriment to the Purchaser~~ it or to comply with an official written request by any applicable regulatory authority; (h) any matter undertaken at the ~~Target Group. The Seller shall provide~~ written request or with the ~~Purchaser with reasonable notice of all such steps proposed to be taken and shall not take any such steps without the~~ written consent of the ~~Purchaser (such consent not to be unreasonably withheld or delayed).~~Buyer; and 5.12 To the extent that interest has accrued but has not yet been paid on the Shareholder Loan or as the case may be the Shareholder Loan Notes, and prior to the Completion Date, none of the following have occurred: (a) the Company and/or SubCo (as relevant) have been issued with a valid direction from HMRC to pay interest on the Shareholder Loan or as the case may be the Shareholder Loan Notes free from withholding or deduction of tax; or (b) in the case of the Shareholder Loan Notes, the Shareholder Loan Notes have been listed on the Channel Islands Securities Exchange; or (c) some other exemption from withholding or deduction of UK income tax applies to the interest payable on the Shareholder Loan or as the case may be the Shareholder Loan Notes, the Seller and the Management Shareholders shall or shall procure that necessary steps are taken to permit the Company and/or SubCo (as the case may be) to make payments in respect of such interest without any withholding or deduction of tax. 5.13 In the case of clause 5.12(c) or where steps are otherwise taken under clause 5.12 that are not within clause 5.12(a) or (b), no steps shall be taken by the Seller, the Management Shareholders or the Company without obtaining the consent of the Purchaser, such consent not to be unreasonably withheld or delayed. 5.14 It is the expectation of the parties that (i) ~~if one~~ the agreement or commitment (whether conditional or not) by any member of the ~~matters referred~~ Group or the Seller’s Group (as applicable) to do or procure the doing of any of the things set out in clauses ~~5.12(a~~4.2(a) to (h), in each case, in the period between the date of this agreement and the date on which Completion occurs. 4.3 In the event that the approval of the Buyer is sought for the purpose of clause 4.1, either the Seller or any member of the Group or the Seller’s Group may seek such consent by written notice delivered via e-mail to the following persons (b) and any other persons that the Buyer notifies to the Seller from time to time for this purpose): Attention: The Company Secretary Email: ▇▇▇.▇▇▇▇▇.▇▇▇▇▇@▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ 4.4 The Buyer’s approval shall be deemed to have been given to the Seller if such approval has ~~occurred; or (ii)~~ neither been granted nor denied by the ~~Purchaser’s consent is given~~ Buyer within 10 Business Days of the Buyer having been notified of the request for approval in accordance with clause ~~5.13~~ 4.3. In respect of any amendment to ~~a particular course~~ the corporation tax returns for the period ended 31 March 2019, the Buyer acknowledges that the Seller will seek approval shortly before the latest date on which those returns can be filed, being 31 March 2021, and agrees that it will not withhold, condition or delay approval by reason of ~~action~~ the limited time to review such returns and will use all reasonable endeavours to approve such returns to enable them to be filed by the ~~action~~ latest date on which such returns can be filed, provided that the Seller has bona fide and with reasonable despatch kept the Buyer informed of any material changes to the basis for the amendments to such corporation tax returns from that of which the Buyer is aware at the date of this agreement as ~~consented to is implemented accordingly, then payment of interest~~ based on the ~~Shareholder Loan and/or Shareholder Loan Notes will not be subject~~ Disclosure Letter and that in any event the amended return is made available to ~~withholding tax and~~ the ~~Purchaser shall be obliged to procure the making of the payment referred to in clause 6.2(b) without withholding~~ Buyer on or ~~deduction of tax~~before Monday 29 March 2021 (during normal business hours). ~~5.15 The Purchaser~~ 4.5 Prior to Completion, in relation to any submission to Ofgem to be made by any Group Company in respect of any matter which the Seller considers, acting in good faith, to be of material importance to the business of any Group Company, the Seller shall, and shall procure that the Group Companies shall: (a) ~~take~~ provide the Buyer and its advisers with any ~~action~~ information that is reasonably requested by the ~~Seller and/or the Management Shareholders; and/or~~Buyer in relation to such matter; (b) ~~give~~ notify in writing the Buyer and its advisers sufficiently in advance of any substantive document or communication which the Seller ~~and/or the Management Shareholders such reasonable assistance, as may be required for the Seller and the Management Shareholders~~ or any Group Company proposes to ~~take any steps~~ submit or make to Ofgem in accordance with clause 5.12 provided that, for the avoidance of doubt, all out-of-pocket costs and expenses incurred by any Target Company and (subject to the prior consent of the Seller, such consent not to be unreasonably withheld or delayed) all reasonable and properly incurred out of pocket costs and expenses incurred by the Purchaser in respect of any step taken in accordance with clause 5.12 shall be for the sole account of the Seller. Without prejudice to the foregoing, any such costs and expenses incurred by the Purchaser shall upon production of a valid invoice not later than five (5) Business Days prior to the Completion Date be set off against the sum payable to the Seller at Completion, and, for the avoidance of doubt, any such costs and expenses incurred by the Target Companies shall be Transaction Fees. 5.16 Notwithstanding any action taken by the Seller under clause 5.12, if the Company and/or SubCo is required by law to make any withholdings or deductions in respect of the Shareholder Loan or the Shareholder Loan Notes (whether by reason of the failure to receive a valid direction from HMRC, any change in law prior to Completion or otherwise) the Company and/or SubCo shall be permitted to make such deduction or withholding as is required and shall not be required to make any additional payments in respect of the Shareholder Loan or the Shareholder Loan Notes, notwithstanding any provision to the contrary contained within the Shareholder Loan or the Shareholder Loan Notes or otherwise agreed between the parties relation to such ~~instruments.~~matter and: 5.17 The parties acknowledge and agree that if there is a change of law relating to withholding tax in the period prior to Completion, the Seller may be required to take certain steps in accordance with provisions of clauses 5.12(c) and 5.13 provided however that such steps shall be required to be taken prior to the Completion Date and Completion shall not be deferred by reason of any such steps required or proposed to be taken. 5.18 If acting reasonably the Seller and the Purchaser determine that the steps taken under clauses 5.12 to 5.17 will give rise to detriment to the Purchaser then the Seller shall be entitled to set-off against any payment due from the Purchaser to the Seller under this Agreement an amount equal to the net present value of the cost of the reasonably foreseeable detriment, such value to be determined and agreed by the Seller and the Purchaser acting reasonably and in good faith. 5.19 The Management Shareholders and the Company undertake to the Seller and the Purchaser to procure that each member of the Target Group will comply with its obligations to provide information to, and consult with (as the case may be): (i) provide the ~~employees~~ Buyer and its advisers with copies of such substantive documents or communications in draft form, including any supporting documentation or information reasonably requested by the ~~Target Group;~~ Buyer; (ii) any relevant employee body of the employees of the Target Group; or (iii) the appropriate representatives of the employees of the Target Group (including, without limitation, the European Works Council), concerning the Proposed Transaction and the potential impact of the Proposed Transaction on the employees of the Target Group. 5.20 In order to assist each member of the Target Group to comply with its obligations in clause 5.19, as soon as reasonably practicable following a request from the Management Shareholders or the Company (such request being reasonable in the context of the obligations described in clause 5.19), the Purchaser shall provide the ~~relevant member of the Target Group~~ Buyer and its advisers with such details of its proposals, if any, that may affect the employees of that Target Company following Completion. The parties shall update the Seller from time to time of progress in relation to the consultation. 5.21 In furtherance of clauses 5.19 and 5.20, and subject to compliance by the Purchaser with its obligations under clause 5.20, the Management Shareholders will: (a) promptly notify the Purchaser of any material communication received from any relevant employee body of the employees of the Target Group or the appropriate representatives of the employees of the Target Group (including, without limitation, the European Works Council); and (b) provide the Purchaser with details of the Target Group’s proposed strategy for complying with the obligations described in clause 5.19, including providing the Purchaser with copies of any communications intended to be disseminated as part of information and consultation at such time as will to the extent practicable allow the Purchaser and the Purchaser’s legal advisers a reasonable opportunity to provide comments on such ~~communications~~ drafts prior to their submission and ~~will keep~~ (acting reasonably) consider those comments; and (iii) provide the ~~Purchaser informed~~ Buyer and its advisers with copies of all ~~material devel~~such communications or documents in the form submitted to Ofgem. 4.6 Notwithstanding any other provision of this agreement, in respect of any disclosures required under this agreement (including this clause 4), competitively sensitive information may be disclosed on a confidential “counsel to counsel” basis only from the Seller’s Solicitors to the Buyer’s Solicitors.

Appears in 1 contract

Sources: Share Purchase Agreement (PPL Corp)

PERIOD TO COMPLETION. ~~5.1 Pending Completion,~~ 4.1 Between execution of this Agreement and Completion the ~~Management Shareholders undertake to~~ Seller shall procure that the ~~Purchaser to procure (insofar as the Management Shareholders are able to do so) that: (i) the~~ Company shall carry on its business ~~of the Company; and (ii) the business of each other Target Company is conducted in accordance with applicable laws and~~ in the ordinary and usual course and ~~shall take all such steps as are reasonably required to protect and preserve~~ in the same manner that the business ~~and assets of each Target Company and to maintain that business as a going concern and with a view to profit. 5.2 Without prejudice to~~ was carried on during the generality of clause 5.1, the Management Shareholders undertake to the Purchaser to procure (insofar as the Management Shareholders are reasonably able to do so) that the Company shall, and shall procure that each Target Company shall, not effect or undertake any matter set out in Schedule 2 in the period from the date of this Agreement to the Completion Date without the prior approval of the Purchaser (such approval not to be unreasonably withheld or delayed). 5.3 The Seller shall not, if approval for such matter is requested, approve any proposed action of a Management Shareholder of which it has prior notice if it is aware that such action would breach either of clauses 5.1 or 5.2. 5.4 The Seller shall procure that any director of any Target Company that is an officer, employee or director of the Seller, Terra Firma or any Related Person of either of the foregoing, or any director that is a nominee company of either the Seller, Terra Firma or any Related Person of either of the foregoing, shall not, subject to that director complying with his or her fiduciary duties and all applicable law and regulatory requirements, approve any proposed action of a Management Shareholder of which it has prior notice if the relevant director is aware that such action would breach either of clauses 5.1 or 5.2. 5.5 A Management Shareholder shall notify the Purchaser as soon as reasonably practicable if he becomes aware of any matter, fact or circumstance which constitutes a breach of either of clauses 5.1 or 5.2 prior to Completion. 5.6 On the Completion Statement Date, the Seller shall provide to the Purchaser the Completion Statement (on the basis that its contents are calculations made in good faith and without liability save in respect of fraud). 5.7 On the date of this Agreement, each Management Shareholder shall deliver to the Seller’s Solicitors: (a) a stock transfer form in the name of the Company in respect of all the SubCo Shares held by that Management Shareholder, duly executed by that Management Shareholder but undated; (b) a share certificate relating to the SubCo Shares held by that Management Shareholder or an indemnity in respect of any lost certificates; (c) a power of attorney executed by that Management Shareholder to enable the Company to exercise all voting and other rights attached to the SubCo Shares held by that Management Shareholder from Completion pending registration of the transfer thereof; (d) a counterpart of the Management Shareholder Waiver Letter signed by each Management Shareholder, and each Management Shareholder irrevocably and unconditionally authorises the Seller’s Solicitors to date such documents on the Completion Date and to deliver such documents to the Purchaser at Completion. 5.8 On the date of this Agreement, the Management Shareholders shall deliver to the Purchaser: (a) a counterpart of the Disclosure Letter signed by or on behalf of each Management Shareholder, and the Purchaser shall deliver to the Management Shareholders a countersigned copy of the Disclosure Letter duly signed by the Purchaser; (b) a counterpart of the Management Warranty Deed and the Management Tax Covenant signed by or on behalf of each Management Shareholder, and the Purchaser shall deliver to the Management Shareholders a countersigned copy of the Management Warranty Deed and the Management Tax Covenant duly signed by the Purchaser; and (c) a counterpart of the Management Escrow Agreement signed by each Management Shareholder. 5.9 On the date of this Agreement: (a) the Seller shall deliver to the Purchaser, a certified copy of the minutes of a meeting of the directors of the Seller resolving that the Seller should enter into this Agreement; (b) the Purchaser shall deliver to the Seller, a certified copy of the minutes of a meeting of the directors of the Purchaser resolving that the Purchaser should enter into this Agreement; (c) the Purchaser Guarantor shall deliver to the Seller a certified copy of the minutes of a meeting of the directors of the Purchaser Guarantor approving the execution by the Purchaser Guarantor of this Agreement; and (d) the Purchaser shall deliver to the Management Shareholders a counterpart of the Management Escrow Agreement duly signed by the Purchaser. 5.10 Subject to applicable law, prior to the date of Completion, the Management Shareholders shall, at the sole cost of the Purchaser, use reasonable efforts to, and shall use reasonable efforts to cause each Target Company and each of their respective directors, officers, employees, agents and advisers (including legal and accounting advisers provided that all advisers’ costs shall be for the sole account of and payable by the Purchaser) to use reasonable efforts to, cooperate with the Purchaser (including (a) (i) providing any information, documents, agreements, consents, comfort letters, certifications and representations reasonably requested by the Purchaser, its legal advisors and independent accountants, its financing sources or investment banks or their legal advisers (which, for the avoidance of doubt, shall include all documentation and other information required under applicable “know your customer” and anti-money laundering rules and regulations), and (ii) participating in a reasonable number of meetings and conference calls with prospective lenders and investors, road shows, due diligence sessions, drafting sessions and sessions with rating agencies and preparation of the materials related to such meetings, sessions, conference calls and road shows, and (iii) assisting in the preparation of a customary confidential information memorandum or other offering document, in each case, in connection with the syndication of the debt, the financing of the transactions contemplated by this Agreement, including any public or private offering or placement of debt or equity securities (which, for the avoidance of doubt, may include an offering of secured high-yield debt securities under Rule 144A of the U.S. Securities Act of 1933, as amended), used to finance the consummation of the transactions contemplated by this Agreement, and (b) enabling the satisfaction and discharge of all financial indebtedness of the Target Companies and all Encumbrances which have been granted by any Target Company (including, without limitation, the revolving credit facility agreement dated 24 May 2011 (the “RCF”), the indenture relating to the Bonds, and the release of security interests in the collateral securing the Bonds and/or the RCF, in each case on the date of Completion PROVIDED that it is permissible to give notice to repay or redeem on the basis that notice can be given on a conditional basis, the condition being Completion occurring and that there is sufficient time prior to Completion and following satisfaction of the Merger Condition to give such notice(s) (including, for the avoidance of doubt, by delivering any notices required to be delivered in connection with the prepayment, repayment or redemption of any such financial indebtedness in accordance with the relevant documentation or one or more conditional notices of redemption to holders of the Bonds in accordance with the indenture governing the Bonds)) in connection with the satisfaction and discharge of all financial indebtedness of the Target Companies). For the avoidance of doubt, the parties acknowledge and agree that any delay or failure on the part of the Management Shareholders in performing their obligations under this clause 5.10 shall not defer or entitle the Purchaser to defer Completion or otherwise excuse the Purchaser to comply with its obligations to proceed to Completion. The parties further acknowledge and agree that, to the extent that the provisions of this clause 5.10 require the Management Shareholders to procure that the financial statements of the Target Group will be converted from UK GAAP and restated in accordance with US GAAP, the costs and expenses of such conversion and restatement (including any costs incurred by the Target Group in engaging the auditors of the Target Group to undertake such conversion and restatement) will be borne directly by the Purchaser. 5.11 The parties acknowledge and agree that as the Shareholder Loan Amount will as at Completion exceed the Net Equity Value, the Seller intends to take certain steps after six months preceding the date of this Agreement and ~~on or prior to Completion to adjust~~ in particular the Shareholder Loan Amount to ensure that, on Completion, the Shareholder Loan Amount is equal to the Net Equity Value less £1.00 (such adjusted amount, the “Adjusted Shareholder Loan Amount”), and the Purchaser agrees to all such steps (including waiver) being taken provided that the taking of such steps does not give rise to any detriment to the Purchaser or to the Target Group. The Seller shall ~~provide~~ procure that: 4.1.1 save where the ~~Purchaser with reasonable notice of all such steps proposed to be taken and shall not take any such steps without the consent of the Purchaser~~ Buyer otherwise consents in writing (such consent not to be unreasonably ~~withheld~~ withheld, delayed or ~~delayed~~conditioned), the Company complies with the undertakings set out in Schedule 4; and 4.1.2 the Buyer and its advisers and agents shall upon reasonable notice be given reasonable access to the premises and all Books and Records and title deeds of the Company and the directors and employees of the Company and the Company will be instructed to give promptly all such information to the Buyer or any person as they may request. 4.2 Between execution of this Agreement and Completion the Buyer shall: 4.2.1 carry on its business in the ordinary and usual course and in the same manner that the business was carried on during the six months preceding the date of this Agreement; and 4.2.2 not create, allot, issue or grant any option over or other right to subscribe for or purchase or redeem, buy back, sub-divide, consolidate, re- denominate, convert, repay, cancel, reduce or alter the rights attaching to any share or loan capital or securities or agree, arrange or undertake to do any of those things. 4.3 If at any time before Completion the Seller becomes aware of any matter or thing that is reasonably likely to give rise to a breach of clause 4.1.1 or a breach of a Warranty or a Leakage Claim, or make a Warranty untrue or misleading on its repetition immediately before Completion, the Seller shall immediately notify the Buyer in writing. 4.4 If at any time before Completion the Buyer becomes aware of any matter or thing that is reasonably likely to give rise to a breach of clause 4.2 or a breach of a Buyer's Warranty, or make any such warranty untrue or misleading on its repetition immediately before Completion, the Buyer shall immediately notify the Seller in writing. 4.5 If at any time before or at Completion: 4.5.1 the Buyer considers that the Seller is either in breach of a Warranty or any other provision of this Agreement, or would be in breach of a Warranty on its repetition immediately before Completion; or 4.5.2 there is, in the reasonable opinion of the Buyer, any material adverse change in the business, operations, assets, insurance, management, properties, position (financial, trading or otherwise), profits or prospects of the Company or events or circumstances which are likely to lead to the same, the Buyer either may proceed to Completion or by notice to the Seller elect to terminate this Agreement (but termination shall not affect a Party's accrued rights, remedies and obligations at the date of termination). ~~5.12 To the extent that interest has accrued but has not yet been paid on the Shareholder Loan~~ 4.6 If at any time before or ~~as the case may be the Shareholder Loan Notes, and prior to the Completion Date, none of the following have occurred~~at Completion: ~~(a)~~ 4.6.1 the ~~Company and/or SubCo (as relevant) have been issued with~~ Seller considers that the Buyer is either in breach of a ~~valid direction from HMRC to pay interest~~ Buyer's Warranty or any other provision of this Agreement, or would be in breach of a Buyer's Warranty on ~~the Shareholder Loan or as the case may be the Shareholder Loan Notes free from withholding or deduction of tax~~its repetition immediately before Completion; or ~~(b)~~ 4.6.2 there is, in the ~~case~~ reasonable opinion of the ~~Shareholder Loan Notes~~Seller, any material adverse change in the ~~Shareholder Loan Notes have been listed on~~ business, operations, assets, insurance, management, properties, position (financial, trading or otherwise), profits or prospects of the ~~Channel Islands Securities Exchange; or (c) some other exemption from withholding~~ Buyer or ~~deduction of UK income tax applies~~ events or circumstances which are likely to lead to the ~~interest payable on the Shareholder Loan or as the case may be the Shareholder Loan Notes~~same, the Seller either may proceed to Completion or by notice to the Buyer elect to terminate this Agreement (but termination shall not affect a Party's accrued rights, remedies and obligations at the ~~Management Shareholders shall or shall procure that necessary steps are taken to permit the Company and/or SubCo (as the case may be) to make payments in respect~~ date of ~~such interest without any withholding or deduction of tax~~termination). 5.13 In the case of clause 5.12(c) or where steps are otherwise taken under clause 5.12 that are not within clause 5.12(a) or (b), no steps shall be taken by the Seller, the Management Shareholders or the Company without obtaining the consent of the Purchaser, such consent not 4.7 If a Party elects to be unreasonably withheld or delayed. 5.14 It is the expectation of the parties that (i) if one of the matters referred to in clauses 5.12(a) or (b) has occurred; or (ii) the Purchaser’s consent is given terminate this Agreement in accordance with clause ~~5.13 to a particular course~~ 4.5 or clause 4.6, the provisions of ~~action~~ clause 18 (Costs and ~~the action as consented to~~ Expenses) shall apply. This is implemented accordingly, then payment of interest on the Shareholder Loan and/or Shareholder Loan Notes will not be subject to withholding tax and the Purchaser shall be obliged to procure the making of the payment referred to in clause 6.2(b) without withholding or deduction of tax. 5.15 The Purchaser shall: (a) take any action reasonably requested by the Seller and/or the Management Shareholders; and/or (b) give the Seller and/or the Management Shareholders such reasonable assistance, as may be required for the Seller and the Management Shareholders to take any steps in accordance with clause 5.12 provided that, for the avoidance of doubt, all out-of-pocket costs and expenses incurred by any Target Company and (subject to the prior consent of the Seller, such consent not to be unreasonably withheld or delayed) all reasonable and properly incurred out of pocket costs and expenses incurred by the Purchaser in respect of any step taken in accordance with clause 5.12 shall be for the sole account of the Seller. Without prejudice to ~~the foregoing, any such costs and expenses incurred by the Purchaser shall upon production of a valid invoice not later than five (5) Business Days prior to the Completion Date be set off~~ that Party's accrued rights or remedies against the ~~sum payable to the Seller at Completion, and, for the avoidance of doubt, any such costs and expenses incurred by the Target Companies shall be Transaction Fees~~other Parties. 5.16 Notwithstanding any action taken by the Seller under clause 5.12, if the Company and/or SubCo is required by law to make any withholdings or deductions in respect of the Shareholder Loan or the Shareholder Loan Notes (whether by reason of the failure to receive a valid direction from HMRC, any change in law prior to Completion or otherwise) the Company and/or SubCo shall be permitted to make such deduction or withholding as is required and shall not be required to make any additional payments in respect of the Shareholder Loan or the Shareholder Loan Notes, notwithstanding any provision to the contrary contained within the Shareholder Loan or the Shareholder Loan Notes or otherwise agreed between the parties to such instruments. 5.17 The parties acknowledge and agree that if there is a change of law relating to withholding tax in the period prior to Completion, the Seller may be required to take certain steps in accordance with provisions of clauses 5.12(c) and 5.13 provided however that such steps shall be required to be taken prior to the Completion Date and Completion shall not be deferred by reason of any such steps required or proposed to be taken. 5.18 If acting reasonably the Seller and the Purchaser determine that the steps taken under clauses 5.12 to 5.17 will give rise to detriment to the Purchaser then the Seller shall be entitled to set-off against any payment due from the Purchaser to the Seller under this Agreement an amount equal to the net present value of the cost of the reasonably foreseeable detriment, such value to be determined and agreed by the Seller and the Purchaser acting reasonably and in good faith. 5.19 The Management Shareholders and the Company undertake to the Seller and the Purchaser to procure that each member of the Target Group will comply with its obligations to provide information to, and consult with (as the case may be): (i) the employees of the Target Group; (ii) any relevant employee body of the employees of the Target Group; or (iii) the appropriate representatives of the employees of the Target Group (including, without limitation, the European Works Council), concerning the Proposed Transaction and the potential impact of the Proposed Transaction on the employees of the Target Group. 5.20 In order to assist each member of the Target Group to comply with its obligations in clause 5.19, as soon as reasonably practicable following a request from the Management Shareholders or the Company (such request being reasonable in the context of the obligations described in clause 5.19), the Purchaser shall provide the relevant member of the Target Group with such details of its proposals, if any, that may affect the employees of that Target Company following Completion. The parties shall update the Seller from time to time of progress in relation to the consultation. 5.21 In furtherance of clauses 5.19 and 5.20, and subject to compliance by the Purchaser with its obligations under clause 5.20, the Management Shareholders will: (a) promptly notify the Purchaser of any material communication received from any relevant employee body of the employees of the Target Group or the appropriate representatives of the employees of the Target Group (including, without limitation, the European Works Council); and (b) provide the Purchaser with details of the Target Group’s proposed strategy for complying with the obligations described in clause 5.19, including providing the Purchaser with copies of any communications intended to be disseminated as part of information and consultation at such time as will to the extent practicable allow the Purchaser and the Purchaser’s legal advisers a reasonable opportunity to provide comments on such communications and will keep the Purchaser informed of all material devel

Appears in 1 contract

Sources: Share Sale and Purchase Agreement

Common use of PERIOD TO COMPLETION Clause in Contracts