POST-COMPLETION COVENANTS. AiS covenants in favour of the Vendors that during the period immediately after Completion and up to the Option Condition Date, to the maximum extent permitted by law: (a) it will not sell or grant any interest over the LuckyBet Group or the Business or enter into an agreement to do so; (b) it will not make any material changes to the LuckyBet Group (being LuckyBet and its subsidiaries) including its capital structure or the Business, or enter into an agreement to do so, except as approved by LuckyBet directors in accordance with the LuckyBet Board Voting Arrangements; (c) it will not permit or suffer a material adverse change; (d) it will adopt and implement the Governance Charter; (e) it will adopt and implement the LuckyBet Investment Program; (f) it will, taking into account the financial position of the AiS Group (being AiS and its subsidiaries), endeavour to establish directors' and officers' liability insurance as soon as practicable; (g) to the extent permitted by law, enter into deeds of indemnity and access with each of its directors and the directors of LuckyBet (collectively, Beneficiaries) pursuant to which AiS covenants to indemnify the Beneficiaries from and against claims made against them in relation to their roles as directors or officers in AiS or its subsidiaries, on market standard terms; (h) at all times comply with applicable law in the conduct of AiS Group's business and affairs; (i) while AiS has the right to appoint the majority of the directors of LuckyBet, AiS will procure that the nominees of the Vendors remain as directors of LuckyBet until the Option Condition Date and undertakes to use its rights and powers as owner of all the shares of LuckyBet to procure implementation of the LuckyBet Board Voting Arrangements, LuckyBet Investment Program and the LuckyBet Business Plan and Budget, and to this end, ensure that directors it appoints to LuckyBet use their powers as directors to satisfy this obligation; (j) AiS will not appoint more than 5 directors in aggregate and of those, the Vendors will have the right to appoint (and remove and replace) up to 2 C-suite directors, their initial nominees being Mr I P▇▇▇▇ and Mr J T▇▇▇▇▇▇.
Appears in 1 contract
POST-COMPLETION COVENANTS. AiS covenants 13.1 Except as otherwise specifically provided in favour this Agreement, on and after Credit Card Completion, the Completion Date and the Final Completion Date (as applicable), the Purchasers shall (and shall procure that Raphael Bank as CCIA’s designee pursuant to clause 11.1 shall), at the Purchasers’ expense, perform such acts (including procuring the necessary assistance of third parties) and execute such documents as may be reasonably required after Credit Card Completion, Completion or the Vendors that during Final Completion (as the period immediately case may be) by the Seller to relieve and discharge the Seller from any Assumed Liabilities.
13.2 Except as otherwise specifically provided in this Agreement, on and after Credit Card Completion, the Completion Date and up the Final Completion Date (as applicable), the Seller shall, at the Seller’s expense, perform such acts (including procuring the necessary assistance of third parties) and execute such documents as may be reasonably required after Credit Card Completion, Completion or the Final Completion Date (as the case may be) by the Purchasers to relieve and discharge the Option Condition DatePurchasers from any Retained Liabilities.
13.3 The Seller and the Purchasers shall co-operate, to the maximum extent permitted reasonably requested by law: the other, in the handling and disposition of any action, suit, arbitration, proceeding, investigation or regulatory inquiry relating to any of the Assets and whether or not pending or threatened prior to Credit Card Completion (with respect to the Credit Card Assets), Completion (with respect to the Infrastructure Assets other than the Information Technology Infrastructure Assets) and Final Completion (with respect to the Information Technology Infrastructure Assets) which arise out of or which are related to any event or occurrence with respect to the Credit Card Assets prior to Credit Card Completion, the Infrastructure Assets (other than the Information Technology Infrastructure Assets) prior to Completion and the Information Technology Infrastructure Assets prior to Final Completion.
13.4 If the Seller becomes aware after Credit Card Completion or Completion (as applicable) of any claim made or likely to be made against the Seller which constitutes or is likely to constitute an Assumed Liability, the Seller shall as soon as reasonably practicable give written notice of that claim to the Purchasers and shall not admit, compromise, settle, discharge or otherwise deal with such claim without the prior consent of the Purchasers (such consent not to be unreasonably withheld or delayed).
13.5 Upon becoming aware of any action, suit or proceeding brought by any person who is not a party to this Agreement which may give rise to a claim or potential claim under which a party to this Agreement may be entitled to the benefit of an indemnity under clause 11 and/or clause 12 of this Agreement, the person having the benefit of that indemnity (the “Indemnified Party”) shall notify the party liable under that indemnity (the “Indemnifying Party”) by written notice of that claim, which notice shall include details of the nature and amount, or potential amount, of that claim.
13.6 Subject to paragraphs (a) it will not sell or grant any interest over the LuckyBet Group or the Business or enter into an agreement to do so; (b) it will not make any material changes to the LuckyBet Group (being LuckyBet and its subsidiaries) including its capital structure or the Business, or enter into an agreement to do so, except as approved by LuckyBet directors in accordance with the LuckyBet Board Voting Arrangements; (c) it will not permit below and clause 13.7, an Indemnifying Party may, at its sole cost and expense, control the defence of any such action, suit or suffer a material adverse change; (d) it will adopt and implement the Governance Charter; (e) it will adopt and implement the LuckyBet Investment Program; (f) it will, taking into account the financial position of the AiS Group (being AiS and its subsidiaries), endeavour to establish directors' and officers' liability insurance as soon as practicable; (g) to the extent permitted by law, enter into deeds of indemnity and access with each of its directors and the directors of LuckyBet (collectively, Beneficiaries) pursuant to which AiS covenants to indemnify the Beneficiaries from and against claims made against them in relation to their roles as directors or officers in AiS or its subsidiaries, on market standard terms; (h) proceeding. The Indemnified Party shall at all times comply with applicable law in the conduct of AiS Group's business and affairs; (i) while AiS has the right to appoint the majority of the directors of LuckyBet, AiS will procure that the nominees of the Vendors remain as directors of LuckyBet until the Option Condition Date and undertakes to use its rights and powers as owner of all the shares of LuckyBet to procure implementation of the LuckyBet Board Voting Arrangements, LuckyBet Investment Program and the LuckyBet Business Plan and Budget, and to this end, ensure that directors it appoints to LuckyBet use their powers as directors to satisfy this obligation; (j) AiS will not appoint more than 5 directors in aggregate and of those, the Vendors will have the right to appoint participate fully in the defence of any relevant action, suit or proceeding at its own expense and the counsel chosen to conduct such defence shall be such counsel as is reasonably acceptable to the Indemnified Party, provided that:
(a) subject to sub-clause (b) and remove (c) if, in the Indemnified Party’s reasonable opinion, the conduct of the relevant action, suit or proceeding (or any incidental negotiations) has materially prejudiced, or is likely to materially prejudice, the value of the Receivables or the Goodwill (in the case of CCIA) or the business of any Seller’s Group Company (in the case of the Seller) or the business of any Purchasers’ Group Company (in the case of CCIA), then the relevant Indemnified Party shall control the defence of any such action, suit or proceeding (at its sole cost);
(b) subject to sub-clause (c), if the conduct of the relevant action, suit or proceeding (or any incidental negotiations) has materially prejudiced, or is likely to materially prejudice, both (i) the value of the Receivables or the Goodwill of the Business or the goodwill of any business of any member of the Purchaser’s Group and replace(ii) up the goodwill of the business of any member of the Seller’s Group, then CCIA shall control the defence of any such action, suit or proceeding (at is sole cost);
(c) no settlement of any action, suit or proceeding may be made by any Indemnifying Party which prejudices or is likely to 2 C-suite directorsprejudice, the goodwill of the Indemnified Party without its prior consent (not to be unreasonably withheld, delayed or conditioned).
13.7 If an Indemnifying Party does not assume the defence of any action, suit or proceeding in accordance with its right under clause 13.6 within 40 Business Days after delivery of a notice served on it in accordance with clause 13.5 and proceed to defend such action, suit or proceeding thereafter, the Indemnified Party may assume the defence of such action, suit or proceeding at the cost and expense of the Indemnifying Party.
13.8 An Indemnified Party shall make available to the Indemnifying Party and its counsel and accountants at reasonable times and for reasonable periods, during normal business hours, all books and records of the Indemnified Party relating to any such possible claim for indemnification, and each of the Indemnified Party and the Indemnifying Party will render to the other such assistance as it may reasonably require of the other to ensure prompt and adequate defence of any suit, claim or proceeding.
13.9 Each of the Indemnified Party and the Indemnifying Party shall render to the other such assistance as may be reasonably required in order to ensure the proper and adequate defence of any such action, suit or proceeding. Neither the Seller nor the Purchasers shall admit any Liability or make a settlement of any claim for which indemnity is or will be sought without the written consent of the other, which consent shall not be unreasonably withheld or delayed.
13.10 For the avoidance of doubt, the Seller (to the extent that such Records, Copy Records and any other information are in the possession or control of or held on behalf of any member of the Seller’s Group) and the Purchasers shall preserve and keep all Records, Copy Records and all other information relating to the accounting, business, financial and Tax affairs of the Business in existence on the Final Completion Date or that come into existence after the Final Completion Date but which relate to the Business prior to the Final Completion Date for such period, not less than six years:
(a) as may be required by a Governmental Authority or Applicable Laws;
(b) as may be reasonably necessary with respect to the prosecution or defence of any audit, suit, action, litigation or administrative arbitration or other proceeding or investigation that is then pending or threatened and which it is aware; or
(c) that is equivalent to the period established by any applicable statute of limitations (or any extension or waiver of it) with respect to matters pertaining to Taxation.
13.11 Subject to clause 23.11, the Seller and the Purchasers (or their initial nominees representatives) shall provide access to the other, and shall permit the other, at the other’s expense, to take copies of, the Records, the Copy Records and all other information relating to the accounting, business, financial and Tax affairs of the Business that the Seller or the Purchasers is obliged to preserve and keep pursuant to clause 13.10 on being Mr I P▇▇▇▇ given reasonable notice requesting such access or copies. In addition, but subject to clause 23.11, the Seller and Mr J T▇▇▇▇▇▇the Purchasers shall procure access by the other to any employees of the Seller’s Group and any employees of the Purchasers’ Group, respectively, on being given reasonable notice requesting such access, as may be reasonably necessary for the purposes of any audit, suit, action, litigation or administrative arbitration or other third party proceeding or investigation by any Governmental Authority or in connection with the Seller’s or the Purchasers’ right of access to the Records and other information set out in this clause.
13.12 Each party shall promptly following receipt thereof give to the other a copy of all payments, notices, correspondence, information or enquiries in relation to the Credit Assets which it receives after Credit Card Completion and in relation to the Business or the Infrastructure Assets which it receives after Completion and which belongs to the other.
13.13 The Seller agrees with the Purchasers that the Seller shall not and shall procure that no Seller’s Group Company shall save as permitted under the Transitional Services Agreement and this Agreement in any capacity:
(a) after Credit Card Completion sell (or purport to sell) the Signing Date Account List in whole or in part to any third party;
(b) for a period of 3 years after Credit Card Completion: (i) provide the Signing Date Account List in whole or in part to any third party; or (ii) use the Signing Date Account List in whole or in part for the purpose of soliciting any Cardholder for any product, including any credit card, whether indirectly or indirectly; or (iii) use any of the information relating exclusively to Cardholders derived from the Customer Data and Files or the Signing Date Account List to conduct marketing activities directed solely or primarily at the Cardholders for any product including any credit card provided that this clause 13.13 shall not restrict the Seller or any Seller’s Group Company from conducting any marketing activities using any information other than derived from the Signing Date Account List or the Customer Data and Files (including information acquired from a third party or information derived from a Cardholder by reason of that Cardholder also being or becoming a customer in a capacity other than a Cardholder of any Seller’s Group Company); or
(c) save as permitted in the Licence Back, at any time after Credit Card Completion use or permit (or purport to permit) any third party to use the name “Monument” or any other name intended or likely to be confused with such a name; or
(d) for a period of 18 months after Completion induce or attempt to induce any person who is a Transferring Employee or Key Personnel to leave the employment of CompuCredit UK (or any member of the Purchasers’ Group who may employ any such Transferring Employee or Key Personnel from time to time) provided that this clause does not prevent the Seller or any Seller’s Group Company from recruiting any Transferring Employee or Key Personnel by means of a general advertising campaign.
13.14 Notwithstanding the provisions of clause 13.13, the Seller undertakes that as from Credit Card Completion it shall not use and shall procure that no member of the Seller’s Group shall use any Personal Data contained in or derived from the Signing Date Account List or Customer Data and Files in contravention of Data Protection Legislation without any limitation in time.
13.15 If the Seller enters into an Authorised Guarantee Agreement in connection with the assignment of the Property Lease, the Purchasers will indemnify the Seller from and against any and all Losses which the Seller incurs (directly or indirectly) in relation to the Authorised Guarantee Agreement.
13.16 The provisions of Schedule 15 shall apply in relation to Unenforceability Allegations.
Appears in 1 contract
Sources: Agreement Relating to the Sale and Purchase of Monument Business
POST-COMPLETION COVENANTS. AiS covenants 8.1 As and when requested by the Purchaser or the Vendor following Completion, the Vendor or the Purchaser, as the case may be, shall take all actions (or refrain from taking any action) and execute or procure to be executed all such further documents, forms, assignments, transfers, assurances and other things as the Purchaser or the Vendor, as the case may be, may reasonably consider necessary or appropriate to give full effect to the transactions contemplated in favour this Agreement. For this purpose, the Purchaser shall retain for a period of 5 (five) years from the Completion Date, or such longer period as may be prescribed by applicable law, all books, records and other information (whether stored electronically or otherwise) relating to the Group Companies existing on the Completion Date.
8.2 Subject to any confidentiality undertakings and in that event subject to similar confidentiality undertakings being given by the receiving party, the Vendor and the Purchaser shall provide or procure to be provided to the other party and their advisers all information in their possession or under their control that they shall from time to time reasonably require (both before and after Completion) in connection with the business and affairs of the Vendors that during the period immediately after Completion Group Companies and up will give or procure to be given to the Option Condition Date, other party and its advisers such reasonable access (including the right to the maximum extent permitted by law: make copies) to all documents that contain or relate to such information.
8.3 The Vendor shall:
(a) it will not sell assume as of the Completion Date any and all guarantees and other securities of any kind (including guarantees given to financial institutions, suppliers or grant other third parties) that any interest over Group Company has executed and/or assumed on behalf or for the LuckyBet Group or benefit of any member of the Business or enter into an agreement to do so; Vendor’s Group;
(b) it will not make any material changes to procure that the LuckyBet Group (being LuckyBet and its subsidiaries) including its capital structure Companies be released from such guarantee or security no later than the Business, or enter into an agreement to do so, except as approved by LuckyBet directors in accordance with the LuckyBet Board Voting ArrangementsCompletion Date; and
(c) it will not permit or suffer a material adverse change; provide to the Purchaser on the Completion Date written evidence (dsatisfactory to the Purchaser) it will adopt that the obligations set out sub (a) and implement (b) above have been fulfilled.
8.4 The Purchaser undertakes to lend all reasonable assistance to the Governance Charter; (e) it will adopt and implement Vendor in connection with the LuckyBet Investment Program; (f) it will, taking into account the financial position performance of the AiS obligations referred to in Clause 8.3.
8.5 The Purchaser shall:
(a) assume as of the Completion Date any and all guarantees and other securities of any kind (including guarantees given to financial institutions, suppliers or other third parties) that the Vendor or any member of the Vendor’s Group has executed and/or assumed on behalf or for the benefit of the Group Companies;
(being AiS b) procure that the Vendor or any member of the Vendor’s Group be released from any and its subsidiaries)all such guarantee or security no later than the Completion Date; and
(c) provide to the Vendor on the Completion Date written evidence (satisfactory to the Vendor) that the obligations set out sub (a) and (b) above have been fulfilled.
8.6 The Vendor undertakes to lend all reasonable assistance to the Purchaser in connection with the performance of the obligations referred to in Clause 8.5.
8.7 The Purchaser acknowledges that all insurance policies currently maintained by the Group Companies and listed in Annex 8.1 of the Vendor Warranties shall be terminated and cease to provide cover with effect on Completion. The Purchaser shall be fully responsible for maintaining insurance coverage in respect of the Group Companies as it deems appropriate following Completion.
8.8 The Vendor undertakes to lend all reasonable assistance to the Purchaser and the Group Companies in connection with Tax matters relating to the Group Companies for the period preceding Completion. For this purpose, endeavour the Vendor shall retain for a period of 5 (five) years from the Completion Date all books, records and other information (whether stored electronically or otherwise) relating to establish directors' and officers' liability insurance as soon as practicable; (g) Tax matters relating to the Group Companies in the period preceding Completion to the extent permitted by lawsuch books, enter into deeds of indemnity records and access information remain with each of its directors the Vendor following Completion.
8.9 The Vendor and the directors Purchaser shall lend to each other all reasonable assistance as may be requested by the Purchaser or the Vendor, as the case may be, for the purpose of LuckyBet (collectively, Beneficiaries) pursuant to which AiS covenants to indemnify ensuring that the Beneficiaries from and against claims made against them in relation to their roles as directors or officers in AiS or its subsidiaries, on market standard terms; (h) at all times requesting party can promptly comply with applicable law in the conduct of AiS Group's business its financial reporting and affairs; (i) while AiS has the right to appoint the majority of the directors of LuckyBet, AiS will procure that the nominees of the Vendors remain as directors of LuckyBet until the Option Condition Date and undertakes to use its rights and powers as owner of all the shares of LuckyBet to procure implementation of the LuckyBet Board Voting Arrangements, LuckyBet Investment Program and the LuckyBet Business Plan and Budget, and to this end, ensure that directors it appoints to LuckyBet use their powers as directors to satisfy this obligation; (j) AiS will not appoint more than 5 directors in aggregate and of those, the Vendors will have the right to appoint (and remove and replace) up to 2 C-suite directors, their initial nominees being Mr I P▇▇▇▇ and Mr J T▇▇▇▇▇▇tax compliance obligations following Completion.
Appears in 1 contract
Sources: Acquisition Agreement (Armstrong World Industries Inc)
POST-COMPLETION COVENANTS. AiS covenants in favour of The Guarantors, the Vendors that during the period immediately after Completion Company and up to the Option Condition DateNJPV covenant, to the maximum extent permitted by law: jointly and severally, to:
(a) it will not sell or grant any interest over cause those Unfulfilled Conditions selected by EIL pursuant to Section 4.2(b)(ii) to be fulfilled within 45 Business Days after the LuckyBet Group or the Business or enter into an agreement to do so; Completion Date;
(b) it will not make any material changes cause CEEG to duly register the trademark set forth on Schedule 15 hereto (the “CEEG Trademark”) in categories 1 and 9 in the PRC under the PRC Trademark Law, amend (to the LuckyBet Group extent required by applicable Law) the existing trademark license agreement between CEEG and the Company pursuant to which CEEG has licensed the CEEG Trademark to the Company, and file such agreement (being LuckyBet as amended) with the relevant PRC Governmental Authorities;
(c) cause NJPV to obtain the land use right certificate with respect to the land listed on Schedule 11 hereto (the “NJPV Premises”) within 45 Business Days after the Completion Date and its subsidiariesthe building ownership certificate with respect to the structures listed on Schedule 11 hereto (the “NJPV Structures”) including its capital structure within 120 Business Days after the Completion Date, in each case duly issued by the relevant PRC Governmental Authorities and fully attesting to NJPV’s lawful rights to own and use the said premises and structures;
(d) cause NJPV to pass the environmental inspection with respect to NJPV Structures as required by PRC law and procure all relevant certifications within 60 Business Days after the Completion Date;
(e) cause NJPV to no later than three calendar months after the Completion Date duly pay off all outstanding balances payable to CEEG and any Affiliate of CEEG or NJPV as of the Business, date of this Agreement and collect all outstanding balances receivable from CEEG and any Affiliate of CEEG or enter into an agreement to do soNJPV as of the date of this Agreement, except the Series A Loan;
(f) carry out, and cause Xinde to carry out, Steps 11 through 14 of the Restructuring as approved by LuckyBet directors set forth in Schedule 10 hereto;
(g) cause Xinde to carry out each of its responsibilities under the Deed of Undertaking attached as Exhibit F hereto in accordance with the LuckyBet Board Voting Arrangementsterms thereof; (c) it will not permit or suffer a material adverse change; (d) it will adopt and implement the Governance Charter; (e) it will adopt and implement the LuckyBet Investment Program; (f) it will, taking into account the financial position of the AiS Group (being AiS and its subsidiaries), endeavour to establish directors' and officers' liability insurance as soon as practicable; (g) to the extent permitted by law, enter into deeds of indemnity and access with each of its directors and the directors of LuckyBet (collectively, Beneficiaries) pursuant to which AiS covenants to indemnify the Beneficiaries from and against claims made against them in relation to their roles as directors or officers in AiS or its subsidiaries, on market standard terms; and
(h) at all times comply with applicable law in cause the conduct of AiS Group's Board to approve a budget, a one-year detailed business plan and affairs; (i) while AiS has a three-year summary business plan for each Group Member within 15 Business Days after the right to appoint the majority of the directors of LuckyBet, AiS will procure that the nominees of the Vendors remain as directors of LuckyBet until the Option Condition Date and undertakes to use its rights and powers as owner of all the shares of LuckyBet to procure implementation of the LuckyBet Board Voting Arrangements, LuckyBet Investment Program and the LuckyBet Business Plan and Budget, and to this end, ensure that directors it appoints to LuckyBet use their powers as directors to satisfy this obligation; (j) AiS will not appoint more than 5 directors in aggregate and of those, the Vendors will have the right to appoint (and remove and replace) up to 2 C-suite directors, their initial nominees being Mr I P▇▇▇▇ and Mr J T▇▇▇▇▇▇Completion Date.
Appears in 1 contract
POST-COMPLETION COVENANTS. AiS covenants in favour 10.1 Without prejudice to subclause 12.2(b), the Purchaser shall maintain and make available to the Seller any books and records of any Group Company (or, if practicable, the relevant parts of those books and records) existing at Completion and acquired pursuant to this Agreement which are required by any member of the Vendors that during Seller’s Group for the period immediately after Completion and up to the Option Condition Date, to the maximum extent permitted by law: purpose of (a) it will not sell filing its tax returns or grant any interest over dealing with the LuckyBet Group or the Business or enter into an agreement to do so; relevant Taxation Authority in respect of such returns, (b) it will not make any material changes to preparing the LuckyBet audited consolidated financial statements of the Seller’s Group (being LuckyBet and its subsidiaries) including its capital structure for the 2006 financial year or the Business, or enter into an agreement to do so, except as approved by LuckyBet directors in accordance with the LuckyBet Board Voting Arrangements; (c) it will not permit complying with applicable laws or suffer regulation and, accordingly, the Purchaser shall, upon being given reasonable notice by the Seller and subject to the Seller giving such undertaking as to confidentiality as the Purchaser shall reasonably require, procure that such books and records are made available to the Seller for inspection (during business hours) and copying (at the Seller’s expense) for and only to the extent necessary for such purpose and for a material adverse change; period of six years from Completion (d) it will adopt and implement or for such longer period as may be required under applicable law). In particular the Governance Charter; (e) it will adopt and implement Purchaser shall use all reasonable endeavours to procure that the LuckyBet Investment Program; (f) it will, taking into account Group Companies shall deliver to the financial position of Seller at the AiS Group (being AiS and its subsidiaries), endeavour to establish directors' and officers' liability insurance Seller’s reasonable cost as soon as practicable; reasonably practicable after Completion (gin a form consistent with past practice) to the extent permitted by law, enter into deeds of indemnity and access with each of its directors and the directors of LuckyBet (collectively, Beneficiaries) pursuant to which AiS covenants to indemnify the Beneficiaries from and against claims made against them in relation to their roles as directors or officers in AiS or its subsidiaries, on market standard terms; (h) at all times comply with applicable law in the conduct of AiS Group's business and affairs; (i) while AiS has the right to appoint year end financial package required for the majority purposes of the directors of LuckyBet, AiS will procure that the nominees audited accounts of the Vendors remain as directors of LuckyBet until Seller’s Group and (ii) the Option Condition Date and undertakes to use its rights and powers as owner of all the shares of LuckyBet to procure implementation of the LuckyBet Board Voting Arrangements, LuckyBet Investment Program and the LuckyBet Business Plan and Budget, and to this end, ensure that directors it appoints to LuckyBet use their powers as directors to satisfy this obligation; control compliance package (j) AiS will not appoint more than 5 directors in aggregate and of those, the Vendors will have the right to appoint (and remove and replace) up to 2 C-suite directors, their initial nominees being Mr I P▇▇▇▇ and Mr J Tconnection with S▇▇▇▇▇▇▇-▇▇▇▇▇ legislation), and the Purchaser shall use all reasonable endeavours to procure at the Seller’s reasonable cost that the relevant members of the Group Companies’ management deliver the normal representation letters (in a form consistent with past practice) applied within the Group Companies for the Seller’s Group in relation to such financial information and to the extent that such information and letters have not been delivered to the Seller prior to Completion. The Seller undertakes to use all reasonable endeavours to procure the delivery of such information and letters in this subclause 10.1 prior to Completion and acknowledges that the Purchaser shall have no liability to the Seller in the event that any piece of information or letter is not delivered to the Seller.
10.2 The Seller shall maintain and make available to the Purchaser any books and records of the Seller or the members of the Seller’s Group (or, if practicable, the relevant parts of those books and records) which are required by the Purchaser’s Group and/or the Group for the purpose of (a) filing its tax returns or dealing with the relevant Taxation Authority in respect of such returns, (b) preparing the financial statements of the Group Companies and/or members of the Purchaser’s Group for the 2006 financial year or (c) complying with applicable laws or regulation (including disclosure obligations of any stock exchange in connection with the listing of any debt or equity securities which may be issued from time to time by any member of the Purchaser’s Group) and, accordingly, the Seller shall, upon being given reasonable notice by the Purchaser and subject to the Purchaser giving such undertaking as to confidentiality as the Seller shall reasonably require, procure that such books and records are made available to the Purchaser for inspection (during business hours) and copying (at the Purchaser’s expense) for and only to the extent necessary for such purpose and for a period of six years from Completion (or for such longer period as may be required under applicable law).
10.3 The Purchaser shall make available to the Seller and its advisers, as it shall nominate, all financial and ancillary information in respect of the 2006 financial year, that the Seller may request for the purpose of preparing the US corporate income tax reporting in relation to the Group Companies. The Purchaser shall provide the information required by the Seller at least 30 Business Days before the intended submission of the said reporting to the US Taxation Authority. The Seller shall request the information in writing and allow the Purchaser a reasonable delay to provide the said information.
10.4 The Purchaser shall inform the Seller, at least 30 Business Days before it is intended to submit the French income tax returns for the 2006 financial year, of any tax treatment of amortization or depreciation or impairment of assets, or any tax treatment in the timing of the recognition or accrual of income or expenses, which would be different from the tax treatment applied by the Seller for the 2005 financial year, for any of the Group Companies or any of the companies of the Purchaser’s Group to which assets of the Group Companies have been transferred and any merger, transfer of assets or transfer of shares involving the Group Companies. If, within 15 Business Days of receiving the said information, the Seller makes any representations to the Purchaser, those representations shall, to the extent that they are reasonable be taken into account for the computation of the taxable income or tax loss of the company concerned. For the avoidance of doubt, representations made by the Seller shall be regarded as reasonable where they are made in order to avoid an increase in any Tax liability in France of any member of the Seller’s Group or a decrease in any Pre-Completion Relief in France that would otherwise have been available except when said representations entail a material adverse effect for the Purchaser or the Group Companies, such material adverse effect to exclude any reduction in the carried forward tax losses available as at the Accounts Date for the Group Companies. It is specified that for the application of this clause, Pre-Completion Relief will not include the pre tax consolidation tax losses carried forward by the Group Companies.
10.5 If the parties, having negotiated in good faith for a period of 15 Business Days, fail to reach agreement as to whether the representations made by the Seller pursuant to subclause 10.4 are reasonable, either the Seller or the Purchaser may refer the matter for determination by a member of a leading international firm of chartered accountants (the Expert). The Expert shall be appointed by agreement between the parties and each party must act reasonably in agreeing on the choice of the Expert. The Expert shall decide the matter in question as an expert (and not as an arbitrator) and his decision shall be final, except in the case of manifest error. Both parties shall make all relevant information available to the Expert. The costs of the Expert shall be borne by the parties in such proportions as the Expert considers to be fair and reasonable in all the circumstances.
10.6 Other than in accordance with the terms of the Transitional Services Agreement and the Trade M▇▇▇ Licences, as soon as reasonably practicable, and (unless otherwise agreed between the parties) no later than twelve months after Completion, the Purchaser shall procure that, from such date, no
Appears in 1 contract
POST-COMPLETION COVENANTS. AiS covenants in favour of the Vendors that during the period immediately after Completion and up 9.1 The Purchaser undertakes to the Option Condition DateSeller, that from Completion until the 6th (sixth) anniversary thereafter or such earlier time that Seller has provided written notice to Purchaser that the information and access described below is no longer reasonably required by the Seller (provided, that Purchaser shall give thirty (30) days’ notice to Seller prior to destroying any records to permit the Seller, at its expense, to the maximum extent permitted by law: (a) it will not sell examine, duplicate or grant any interest over the LuckyBet Group or the Business or enter into an agreement to do so; (b) it will not make any material changes to the LuckyBet Group (being LuckyBet repossess such books and its subsidiaries) including its capital structure or the Business, or enter into an agreement to do so, except as approved by LuckyBet directors in accordance with the LuckyBet Board Voting Arrangements; (c) it will not permit or suffer a material adverse change; (d) it will adopt and implement the Governance Charter; (e) it will adopt and implement the LuckyBet Investment Program; (f) it will, taking into account the financial position of the AiS Group (being AiS and its subsidiariesrecords), endeavour to establish directors' and officers' liability insurance as soon as practicable; (g) to at the extent permitted by lawSeller’s sole cost, enter into deeds of indemnity and access with each of its directors and the directors of LuckyBet (collectively, Beneficiaries) pursuant to which AiS covenants to indemnify the Beneficiaries from and against claims made against them in relation to their roles as directors or officers in AiS or its subsidiaries, on market standard terms; (h) upon reasonable notice at all reasonable times comply with applicable law in the conduct of AiS Group's during normal business and affairs; hours (i) while AiS has the right to appoint the majority of the directors of LuckyBet, AiS it shall promptly afford (and will procure that the nominees Company promptly affords) to the Seller and its Authorised Representatives, reasonable access to the books, records, officers and employees of the Vendors remain as directors Company, (ii) shall use reasonable endeavours to provide access to any audit records in the possession of LuckyBet its auditors, and (iii) shall provide information with respect to the Company, in the case of (i), (ii) and (iii), solely with respect to periods prior to the Completion Date, in a readily accessible form (including financial information in a form consistent with the Company’s historical practice for the preparation of such financial information), to the extent in the Purchaser’s possession, in each case, to the extent reasonably required by the Seller or any of its Affiliates for any lawful business purpose related to its prior ownership of the Company, the transactions contemplated by this Agreement or to comply with Applicable Law, including litigation (other than with the Purchaser or any of its Affiliates (including the Company), disputes (other than with the Purchaser or any of its Affiliates (including the Company), compliance, financial and Tax reporting, and the Purchaser shall cooperate fully with the Seller or its relevant Affiliates provided that such access does not unreasonably interfere with the conduct of the business of Purchaser or the Company. Purchaser shall not be required to disclose any information if Purchaser reasonably determines that: (i) information is subject to attorney-client privilege to the extent doing so would reasonably be expected to cause such privilege to be waived; or (ii) disclosure may contravene any Applicable Law, fiduciary duty or agreement. The Parties will use commercially reasonable efforts to make appropriate substitute disclosure arrangements under circumstances in which the preceding sentence applies to the extent commercially practicable.
9.2 The Seller undertakes to the Purchaser, that from Completion until the Option Condition Date 6th (sixth) anniversary thereafter or such earlier time that the Purchaser has provided written notice to the Seller that the information and undertakes access described below is no longer reasonably required by the Purchaser (provided, that the Seller shall give thirty (30) days’ notice to use the Purchaser prior to destroying any such records to permit the Purchaser, at its rights expense, to examine, duplicate or repossess such books and powers as owner of all records), at the shares of LuckyBet to Purchaser’s sole cost upon reasonable notice at reasonable times during normal business hours, (i) it shall promptly afford (and will procure implementation that each member of the LuckyBet Board Voting ArrangementsRetained Seller Group promptly affords) to the Purchaser and its Authorised Representatives, LuckyBet Investment Program reasonable access to the books, records, officers and employees of the LuckyBet Business Plan Seller and Budgeteach relevant member of the Retained Seller Group, and (ii) shall provide information with respect to this endthe Company, ensure that directors it appoints in the case of (i) and (ii), solely with respect to LuckyBet use periods prior to the Completion Date, in a readily accessible form, to the extent in the possession Seller or another member of the Seller’s Group or any third-party service provider to the Seller or another member of the Seller’s Group, in each case, to the extent reasonably required by the Purchaser or any of its Affiliates for any lawful business purpose related to their powers as directors to satisfy this obligation; (j) AiS will not appoint more than 5 directors in aggregate ownership and operation of thosethe Company, the Vendors transactions contemplated by this Agreement or to comply with Applicable Law, including litigation (other than with the Seller or any of its Affiliates), disputes (other than with the Seller or any of its Affiliates), compliance, financial and Tax reporting provided that such access does not unreasonably interfere with the conduct of the business of Seller. The Seller shall not be required to disclose any information if the Seller reasonably determines that: (i) information is subject to attorney-client privilege to the extent doing so would reasonably be expected to cause such privilege to be waived; or (ii) disclosure may contravene any Applicable Law, fiduciary duty or agreement. The Parties will use commercially reasonable efforts to make appropriate substitute disclosure arrangements under circumstances in which the preceding sentence applies to the extent commercially practicable. Seller and Purchaser agree that all books and records of the Company (which includes, but is not limited to, emails and other correspondence relating to the Company’s business), including information contained electronically on the computer systems of the Seller or other members of the Seller’s Group or any third-party service provider to the Seller or another member of the Seller’s Group are the property of the Company and that after Completion the Company shall have the right to appoint examine, duplicate or repossess such books and records to the extent accessible by the Seller or other members of the Seller’s Group; provided that, to the extent any such books and records contain information not relating to the Company, Seller may redact such information. Any such books and records, while in the possession of the Seller or other members of the Seller’s Group shall be treated the same as information of the Seller, including being subject to the Seller and its Affiliates document retention policies; provided that Seller shall give thirty (30) days’ notice to the Purchaser prior to destroying any such books or records to permit the Purchaser to examine, duplicate or repossess such books and remove records.
9.3 The Parties hereby agree that the Company shall not be entitled to carry on business under the name “MBIA” or any confusingly similar name. Accordingly, the Purchaser hereby undertakes to the Seller to procure that by no later than 180 days after Completion the corporate name of the Company is changed to a name which does not contain or refer to the acronym of “MBIA” and replaceis not confusingly similar to the current name of the Company (the “New Name”).
9.4 The Purchaser hereby undertakes to the Seller to procure that by no later than 180 days after Completion the Company shall cease using the Trademarks in respect of the following materials: (i) business cards; (ii) invoices; (iii) receipts; (iv) forms; and (iv) product, training and service literature and materials, (together, the “Materials”).
9.5 The Purchaser hereby undertakes to the Seller to procure that by no later than 90 days after Completion, the Company shall: (i) establish its own internet (wide area network) link for sending emails and or accessing the internet; (ii) set up an email domain name without referencing “MBIA” or any derivation thereof; and (iii) set up its own email server (software).
9.6 Notwithstanding this Clause 9, the Purchaser shall be entitled to 2 C-suite directorsrefer to “MBIA” in any document or notice it is required or permitted to send or serve pursuant to any legally binding obligation, their initial nominees being Mr I P▇▇▇▇ and Mr J T▇▇▇▇▇▇agreement, or court or legal proceeding provided, however, that any such document, notice, or court or legal proceeding shall specifically note the New Name each time “MBIA” is used.
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Sources: Share Purchase Agreement (Mbia Inc)