PRE-COMPLETION MATTERS. 5.1 Conduct of the business between the date of the Agreement and the Completion Date 5.1.1 As from the date of this Agreement until the Completion Date, the Majority Seller undertakes to ensure that the Orthopaedic Business of the Warranted Companies will be conducted in the ordinary course of business consistent with past practices and that, except (i) as contemplated elsewhere in this Agreement including in particular Schedule 4.1(a) or (ii) as necessary to implement the transactions contemplated herein or (iii) if prior consented to in writing by the Purchaser (such consent not to be unreasonably withheld): (a) no Warranted Company (i) amends its articles of association or (ii) undertakes any merger, spin-off, contribution or other form of reorganization, unless, in both cases under (i) and (ii), for the purposes of the Dental Carve Out and subject to the transfer by Biotech Ortho to TriMed Biotech SAS of shares representing 60% of the share capital of TriMed Hellas to occur prior to the Completion Date; (b) no Warranted Company acquires securities issued by an entity, enters into any joint-venture, partnership, or other similar arrangement, or merge with another entity; (c) no Warranted Company shall alter its share capital or declare, make or pay any dividend (whether interim or final) or other distribution of profit or reserves in respect of their share capital (in cash or otherwise), or repay, reduce, purchase or redeem any shares in its share capital; (d) no Warranted Company issues, sells, delivers any shares in its share capital or any options, warrants or other rights to purchase or subscribe to any such shares or any shares convertible into, exchangeable for, or otherwise giving access to such shares; (e) no Warranted Company (i) incurs any financial or trade indebtedness other than in the ordinary course of business or (ii) increases existing loans, facilities or overdrafts; (f) no Warranted Company acquires or disposes of any asset of a value greater than EUR 50,000 other than in the ordinary course of business or pursuant to any commitment taken in writing by the Warranted Companies prior to the date hereof; (g) no Warranted Company enters into any (i) new expenses for an individual gross amount of more than EUR 50,000, (ii) new contract, whether written or oral, for an individual gross amount of more than EUR 50,000, or (iii) new contract containing obligations that give rise to penalties in the event of non-performance or which do not contain any limitation of liability clause, providing for pricing conditions significantly lower that the pricing conditions generally applied by the Warranted Companies, that would prohibit any of the Warranted Companies from performing its activity or from competing with any other entity, containing a change of control clause for the benefit of the co-contracting party in the event of a change of control of the Target Company; (h) no Warranted Company enters into any new contract with French healthcare professionals, directly or indirectly, to the exclusion of healthcare establishments; (i) no Warranted Company pledges its business assets or creates any other Encumbrance over any of its assets, or takes any other measure which may encumber or otherwise affect the free disposition of its assets or shares, other than in the ordinary course of business or pursuant to existing agreements; (j) no Warranted Company voluntarily modifies substantially or voluntarily terminates any Material Contracts other than in the ordinary course of business; (k) save for changes which are mandatory under applicable labor Laws or any relevant collective bargaining agreement or employment agreement, the Warranted Companies shall not change the working conditions of any of their employees or shall not increase or undertake to increase the compensation payable or other benefits due to any of their employees other than those mandatory under their employment agreements; (l) no Warranted Company makes any change in its accounting procedures or practices unless required under applicable GAAP; (m) neither the Target Company nor any Warranted Company as applicable commits in writing to take any of the actions set forth in the foregoing subsections (a) to (m). For the purposes of granting any consents which may be requested by the Majority Seller’s legal representative pursuant to this Clause 5.1, the Purchaser hereby designates Mr. ▇▇▇▇ ▇▇▇▇▇ with immediate effect and represents and warrants to, and agrees with, the Majority Seller that Mr. ▇▇▇▇ ▇▇▇▇▇ shall have full capacity and right to give any such consents on behalf of the Purchaser during the term of this Agreement. Within five (5) Business Days of receipt of any written request via e-mail to Mr. ▇▇▇▇ ▇▇▇▇▇ (▇▇▇▇.▇▇▇▇▇@▇▇▇.▇▇▇) and ▇▇. ▇▇▇▇ ▇▇▇▇▇▇▇ (▇▇▇▇.▇▇▇▇▇▇▇@▇▇▇.▇▇▇) for consent issued by the Majority Seller’s legal representative, the Purchaser shall have the right to notify the Majority Seller’s legal representative that it objects to the proposed action (which notice of objection shall indicate its reasons for so objecting). If the Purchaser has not notified the Majority Seller’s legal representative of its objection to a proposed action within such period of five (5) Business Days, the Purchaser shall be deemed to have consented to such proposed action. 5.1.2 The Majority Seller undertakes that, until the Completion Date, no payments or transfers of value shall be made, promised, authorized, ratified or offered by any Target Group Company with the purpose or effect of public or commercial corruption, acceptance of or acquiescence in extortion, kickbacks or other unlawful or improper means of securing an improper advantage or obtaining relating business.
Appears in 1 contract
Sources: Sale and Purchase Agreement (Wright Medical Group Inc)
PRE-COMPLETION MATTERS. 5.1 Conduct of the business between the date of the Agreement and the Completion Date
5.1.1 As from the date of this Agreement until the Completion Date, the Majority The Seller hereby undertakes to ensure that the Orthopaedic Business of the Warranted Companies will be conducted in the ordinary course of business consistent with past practices and that, except (i) as contemplated elsewhere in this Agreement including in particular Schedule 4.1(a) or (ii) as necessary to implement the transactions contemplated herein or (iii) if prior consented to in writing by the Purchaser (such consent not to be unreasonably withheld):that:
(a) no Warranted Company if at any time before Completion the Seller comes to know of any fact, circumstance or event which:
(i) amends its articles is in any way inconsistent with any of association the undertakings or Seller’s Warranties given by the Seller, or suggests that any fact warranted may not be as warranted or may be misleading; and/or
(ii) undertakes any merger, spin-off, contribution or other form might affect the willingness of reorganization, unless, in both cases under (i) and (ii), a prudent purchaser for the purposes value of the Dental Carve Out and subject Sale Share and/or the Property to enter into or to complete a purchase of, or the amount of the consideration which such purchaser would be prepared to pay for, the Sale Share and/or the Property, the Seller shall as soon as practicable give written notice thereof to the transfer by Biotech Ortho to TriMed Biotech SAS of shares representing 60% of the share capital of TriMed Hellas to occur prior to the Completion DatePurchaser;
(b) no Warranted Company acquires securities issued by an entitypending Completion, enters into the Seller shall, and shall procure that each member of the Group shall:
(i) not do or allow to be done any joint-ventureact or omission which would constitute or give rise to a breach of any of the Seller’s Warranties if the Seller’s Warranties were given at any time up to the date of Completion;
(ii) ensure that the Purchaser and its authorised representatives and advisers are promptly given full access to the Property and to all the Records and other documents of each member of the Group and all such information, partnershipexplanations and copies with respect thereto (or thereof) and to the business, affairs, assets, liabilities and contracts of each member of the Group as the Purchaser or its authorised representatives or advisers may reasonably request;
(iii) not dispose of any interest in the Sale Share or any interests in the shares in Apex Frame or the Property or create or grant any Encumbrance, lease, tenancy, licence, etc., over or in respect of any of them;
(iv) immediately notify the Purchaser in writing of the resignation or other similar arrangementtermination or variation of the employment or engagement (or the terms thereof) of any director or senior manager of any member of the Group;
(v) notify in writing the Purchaser of all negotiations on or relating to (a) any contract or procurement relating to the Property (or any part thereof); and (b) any notices, or merge with another entityorders, resumption notices received by Apex Frame and follow such directions given by the Purchaser in such negotiations;
(vi) not carry out any works to the Property of a material nature including any structural works to any part of the Property, save and except the routine maintenance and repair works; and
(c) no Warranted Company shall alter its share capital or declare, make or pay any dividend (whether interim or final) or other distribution of profit or reserves in respect of their share capital (in cash or otherwise), or repay, reduce, purchase or redeem any shares in its share capital;
(d) no Warranted Company issues, sells, delivers any shares in its share capital or any options, warrants or other rights it will use all reasonable endeavours to purchase or subscribe procure that at all times up to any such shares or any shares convertible into, exchangeable for, or otherwise giving access to such shares;
(e) no Warranted Company (i) incurs any financial or trade indebtedness other than in the ordinary course of business or (ii) increases existing loans, facilities or overdrafts;
(f) no Warranted Company acquires or disposes of any asset of a value greater than EUR 50,000 other than in the ordinary course of business or pursuant to any commitment taken in writing by the Warranted Companies prior to the date hereof;
(g) no Warranted Company enters into any (i) new expenses for an individual gross amount of more than EUR 50,000, (ii) new contract, whether written or oral, for an individual gross amount of more than EUR 50,000, or (iii) new contract containing obligations that give rise to penalties in the event of non-performance or which do not contain any limitation of liability clause, providing for pricing conditions significantly lower that the pricing conditions generally applied by the Warranted Companies, that would prohibit any Completion each member of the Warranted Companies from performing its activity or from competing with any other entity, containing a change of control clause for the benefit of the co-contracting party in the event of a change of control of the Target Company;
(h) no Warranted Company enters into any new contract with French healthcare professionals, directly or indirectly, to the exclusion of healthcare establishments;
(i) no Warranted Company pledges its business assets or creates any other Encumbrance over any of its assets, or takes any other measure which may encumber or otherwise affect the free disposition of its assets or shares, other than in the ordinary course of business or pursuant to existing agreements;
(j) no Warranted Company voluntarily modifies substantially or voluntarily terminates any Material Contracts other than in the ordinary course of business;
(k) save for changes which are mandatory under applicable labor Laws or any relevant collective bargaining agreement or employment agreement, the Warranted Companies shall not change the working conditions of any of their employees or shall not increase or undertake to increase the compensation payable or other benefits due to any of their employees other than those mandatory under their employment agreements;
(l) no Warranted Company makes any change in its accounting procedures or practices unless required under applicable GAAP;
(m) neither the Target Company nor any Warranted Company as applicable commits in writing to take any of the actions set forth in the foregoing subsections (a) to (m). For the purposes of granting any consents which may be requested by the Majority Seller’s legal representative pursuant to this Clause 5.1, the Purchaser hereby designates Mr. ▇▇▇▇ ▇▇▇▇▇ with immediate effect and represents and warrants to, and agrees with, the Majority Seller that Mr. ▇▇▇▇ ▇▇▇▇▇ shall have full capacity and right to give any such consents on behalf of the Purchaser during the term of this Agreement. Within five (5) Business Days of receipt of any written request via e-mail to Mr. ▇▇▇▇ ▇▇▇▇▇ (▇▇▇▇.▇▇▇▇▇@▇▇▇.▇▇▇) and ▇▇. ▇▇▇▇ ▇▇▇▇▇▇▇ (▇▇▇▇.▇▇▇▇▇▇▇@▇▇▇.▇▇▇) for consent issued by the Majority Seller’s legal representative, the Purchaser shall have the right to notify the Majority Seller’s legal representative that it objects to the proposed action (which notice of objection shall indicate its reasons for so objecting). If the Purchaser has not notified the Majority Seller’s legal representative of its objection to a proposed action within such period of five (5) Business Days, the Purchaser shall be deemed to have consented to such proposed action.
5.1.2 The Majority Seller undertakes that, until the Completion Date, no payments or transfers of value shall be made, promised, authorized, ratified or offered by any Target Group Company will comply with the purpose or effect provisions of public or commercial corruption, acceptance of or acquiescence in extortion, kickbacks or other unlawful or improper means of securing an improper advantage or obtaining relating businessSchedule 4.
Appears in 1 contract
Sources: Sale and Purchase Agreement
PRE-COMPLETION MATTERS. 5.1 Conduct 6.01 The Vendor hereby undertakes to the Purchaser that the business of the business between the date of the Agreement and the Completion Date
5.1.1 As Group from the date of this Agreement until the up to (and including) Completion Date, the Majority Seller undertakes to ensure that the Orthopaedic Business of the Warranted Companies will be conducted operated in a normal and prudent manner and in the ordinary course of business consistent with past practices day-to-day operations. The Vendor further undertakes to the Purchaser that it will not do or will not omit to do (or allow to be done) any act or thing (in either case whether or not in the ordinary course of day-to-day operations) which is material and that, except (i) as contemplated elsewhere in this Agreement including in particular Schedule 4.1(a(but without limiting the generality of the foregoing) or will procure that no member of the Group will prior to Completion (ii) as necessary to implement without the transactions contemplated herein or (iii) if prior consented to in writing by written consent of the Purchaser (such consent not to be unreasonably withheldPurchaser):
(a1) no Warranted issue or agree to issue or place or agree to place any share or equity capital or issue or agree to issue any loan capital or grant or agree to grant or redeem or agree to redeem any option or amend or agree to amend the terms of any existing option over or right to acquire or subscribe any of its share or loan capital; or
(2) amend the constitutional documents of the Company or any Group Company; or
(i3) amends its articles of association declare or (ii) undertakes pay or make any merger, spin-off, contribution dividends or other form distributions; or
(4) transfer or Dispose of reorganizationequity interest of any Group Company; or
(5) borrow or otherwise raise money or incur or discharge any indebtedness in excess of HK$1,000,000; or
(6) enter into or amend any material contract or other material transaction or capital commitment or incur or allow to arise any material contingent liability in excess of HK$1,000,000; or
(7) in any respect depart from the ordinary course of its day-to-day business; or
(8) terminate prematurely any agreement, unless, in both cases under arrangement or understanding or waive any right of material value; or
(i9) and (ii), for the purposes of the Dental Carve Out and subject repay any loan or indebtedness due to the transfer by Biotech Ortho to TriMed Biotech SAS Vendor or any of shares representing 60% of the share capital of TriMed Hellas to occur prior to the Completion Date;its respective Associates or connected persons; or
(b10) no Warranted Company acquires securities issued by an entitycreate or permit to arise any Encumbrance of whatsoever nature, enters into any joint-venture, partnership, on or other similar arrangement, or merge with another entity;
(c) no Warranted Company shall alter its share capital or declare, make or pay any dividend (whether interim or final) or other distribution of profit or reserves in respect of any part of its undertaking, property or assets other than liens arising by operation of law in amounts which are not material; or
(11) make any advances or other credits to any third party or give any guarantee,
(12) Dispose or agree to Dispose of or acquire or agree to acquire any asset; or
(13) enter into any joint venture, partnership or profit share arrangement; or
(14) engage any employee or dismiss other than for just cause any employee or make any material variation to the terms and conditions of employment of any employees or provide or agree to provide any gratuitous payment or benefit to any employee or any of their share capital dependents; or
(15) enter into, amend, terminate or Dispose of any tenancy or lease agreement in cash respect of any property or otherwiseacquire or Dispose of any interest in any property; or
(16) start any civil, criminal, arbitration or other proceedings; or
(17) start, settle, compromise, release, discharge or compound any civil, criminal, arbitration or other proceedings or any liability, claim, action, demand or dispute or waive any right in respect of the foregoing; or
(18) release, compromise or write off any material amount recorded in the books of account of any member of the Group as owing by any debtors of the Group; or
(19) change (whether increase or reduce) the amount that the Vendor is currently owing to the Group as shown on the Management Accounts (if any), ; or
(20) terminate any or repay, reduce, allow to lapse any insurance policy now in effect; or
(21) alter the terms of any financing/lending documents or security arrangements; or
(22) purchase or redeem any shares in its share capital;the Company and/or any Group Company or provide financial assistance for any such purchase; or
(d23) no Warranted Company issuesacquire any material assets on hire purchase or deferred terms; or
(24) Dispose of the ownership, sellspossession, delivers custody or control of any shares in its share capital or any options, warrants corporate or other rights to purchase books or subscribe to any such shares or any shares convertible into, exchangeable for, or otherwise giving access to such shares;records; or
(e25) no Warranted Company propose or pass any shareholders’ resolution at any general meeting which is a special business and not in connection with this Agreement or transactions contemplated hereunder or incidental hereto, save for the proposal of and the passing of any shareholders’ resolution regarding the ordinary business at any of their respective annual general meeting; or
(i26) incurs enter into any financial transaction or trade indebtedness arrangement, other than in for full consideration and on arms-length terms; or
(27) allow or permit the ordinary course occurrence of any change (or effect) which has a material and adverse effect on the financial position, business or (ii) increases existing loansproperty or results of operations, facilities or overdrafts;of the Group; or
(f28) no Warranted Company acquires do, allow or disposes procure any act or permit any omission which would constitute a breach of any asset of a value greater than EUR 50,000 other than in the ordinary course of business or pursuant to any commitment taken in writing by the Warranted Companies prior to the date hereof;
(g) no Warranted Company enters into any (i) new expenses for an individual gross amount of more than EUR 50,000, (ii) new contract, whether written or oral, for an individual gross amount of more than EUR 50,000, or (iii) new contract containing obligations that give rise to penalties in the event of non-performance or which do not contain any limitation of liability clause, providing for pricing conditions significantly lower that the pricing conditions generally applied by the Warranted Companies, that would prohibit any of the Warranted Companies from performing its activity or from competing with any Vendor’s Warranties and other entity, containing a change of control clause for undertakings given by the benefit of the co-contracting party in the event of a change of control of the Target Company;Vendor under this Agreement.
(h) no Warranted Company enters into any new contract with French healthcare professionals, directly or indirectly, 6.02 Subject always to the exclusion of healthcare establishments;
(i) no Warranted Company pledges its business assets or creates any other Encumbrance over any of its assetscompliance with the applicable laws, or takes any other measure which may encumber or otherwise affect the free disposition of its assets or shares, other than in the ordinary course of business or pursuant to existing agreements;
(j) no Warranted Company voluntarily modifies substantially or voluntarily terminates any Material Contracts other than in the ordinary course of business;
(k) save for changes which are mandatory under applicable labor Laws or any relevant collective bargaining agreement or employment agreementrules and codes, the Warranted Companies Vendor further undertakes to procure that the Group shall not change the working conditions of any of their employees or shall not increase or undertake to increase the compensation payable or other benefits due to any of their employees other than those mandatory under their employment agreements;
(l) no Warranted Company makes any change in its accounting procedures or practices unless required under applicable GAAP;
(m) neither the Target Company nor any Warranted Company as applicable commits in writing to take any of the actions set forth in the foregoing subsections (a) to (m). For the purposes of granting any consents which may be requested by the Majority Seller’s legal representative pursuant to this Clause 5.1, the Purchaser hereby designates Mr. ▇▇▇▇ ▇▇▇▇▇ with immediate effect and represents and warrants to, and agrees with, the Majority Seller that Mr. ▇▇▇▇ ▇▇▇▇▇ shall have full capacity and right to give any such consents on behalf of the Purchaser during the term period from the date of this Agreement and ending on the Completion Date do anything that may delay, hinder or frustrate the completion of this Agreement. Within five (5) Business Days of receipt of any written request via e-mail to Mr. ▇▇▇▇ ▇▇▇▇▇ (▇▇▇▇.▇▇▇▇▇@▇▇▇.▇▇▇) and ▇▇. ▇▇▇▇ ▇▇▇▇▇▇▇ (▇▇▇▇.▇▇▇▇▇▇▇@▇▇▇.▇▇▇) for consent issued by the Majority Seller’s legal representative, the Purchaser shall have the right to notify the Majority Seller’s legal representative that it objects to the proposed action (which notice of objection shall indicate its reasons for so objecting). If the Purchaser has not notified the Majority Seller’s legal representative of its objection to a proposed action within such period of five (5) Business Days, the Purchaser shall be deemed to have consented to such proposed action.
5.1.2 The Majority Seller undertakes that, until the Completion Date, no payments or transfers of value shall be made, promised, authorized, ratified or offered by any Target Group Company with the purpose or effect of public or commercial corruption, acceptance of or acquiescence in extortion, kickbacks or other unlawful or improper means of securing an improper advantage or obtaining relating business.
Appears in 1 contract