Completion. 5.1. Subject to the conditions set out in Clauses 3.1, 3.2 and 3.3, Completion shall take place on the Completion Date. 5.2. The obligations of each of the Parties under Clause 5.3 below are interdependent of each other. The Completion shall not occur unless all of the obligations specified in Clause 5.3, have been simultaneously complied with and are fully effective. 5.3. On the Completion Date: (i) Subject to deductions pursuant to Clause 4.4, the Purchaser shall remit the Purchase Consideration (in immediately available funds) to the Seller’s Bank Account. (ii) The Seller shall (a) provide to its Depository Participant duly executed DP Instructions in the prescribed form for the transfer of the Sale Shares to the Demat Account of the Purchaser (details of which shall be provided to the Seller in writing as soon as practicable after the Execution Date); (b) procure its Depository Participant to duly acknowledge such DP Instructions; (c) deliver a copy of such acknowledgement to the Purchaser; and (d) use best endeavours to procure credit of the Sale Shares to the Demat Account of the Purchaser. (iii) The Seller shall, to the extent it is able to do so through exercise of its voting rights, procure that a Board meeting is held at which the following business shall be transacted: (a) the appointment of directors nominated by the Purchaser on the Board shall be approved; and (b) an extra-ordinary general meeting of the shareholders of the Company to approve the matters set out in Clause 5.3(iii)(a) and the amendment of the Articles of Association shall be convened. 5.4. This Agreement may be terminated on or prior to the Completion Date as follows: (i) By the mutual written consent of the Purchaser and the Seller. (ii) By the Seller, upon written notice to the Purchaser, if the conditions set out in Clauses 3.1 and 3.3 have not been satisfied (or satisfied subject only to Completion where applicable) or waived (where applicable) on or before 270 (two hundred seventy) days from the Execution Date or such later date as may be mutually agreed between the Parties in writing (“Long Stop Date”); provided that the Seller shall not be entitled to terminate this Agreement pursuant to this Clause 5.4(ii) if Seller’s breach of this Agreement has prevented or materially delayed the consummation of the Transactions (which term for the purposes of this Clause 5.4(ii) shall not include the Financing); (iii) By the Purchaser, upon written notice to the Seller, if the conditions set out in Clauses 3.2 and 3.3 have not been satisfied (or satisfied subject only to Completion where applicable) or waived (where applicable) on or before the Long Stop Date; provided that the Purchaser shall not be entitled to terminate this Agreement pursuant to this Clause 5.4(iii) if Purchaser’s breach of this Agreement has prevented or materially delayed the consummation of the Transactions. (iv) By the Seller (if the Seller is not in material breach of the Seller Warranties, covenants or agreements under this Agreement so as to cause any of the conditions set forth in Clause 3.2 and/or 3.3(i) not to be satisfied), upon written notice to the Purchaser, if there has been a material inaccuracy of any statement or warranty, or any unremedied material breach of a covenant or other agreement, of the Purchaser contained in this Agreement, which violation, breach or inaccuracy would cause any of the conditions set forth in Clause 3.1 and/or 3.3 not to be satisfied as of the Completion Date, and such violation, breach or inaccuracy has not been waived by the Seller or cured by the Purchaser within 20 (twenty) Business Days after receipt by the Purchaser of written notice thereof from the Seller or is not reasonably capable of being cured prior to the Long Stop Date. (v) By the Purchaser (if the Purchaser is not in material breach of the Purchaser Warranties, covenants or agreements under this Agreement so as to cause any of the conditions set forth in Clause 3.1 and/or 3.3 not to be satisfied), upon written notice to the Seller, if there has been a material inaccuracy of any statement or warranty, or any unremedied material breach of a covenant or other agreement, of the Seller contained in this Agreement, which violation, breach or inaccuracy would cause any of the conditions set forth in Clauses 3.2 and/or 3.3(i) not to be satisfied as of the Completion Date, and such violation, breach or inaccuracy has not been waived by the Purchaser or cured by the Seller within 20 (twenty) Business Days after receipt by the Seller of written notice thereof from the Purchaser or is not reasonably capable of being cured prior to the Long Stop Date. (vi) By the Seller or the Purchaser, upon written notice to the other, if a court of competent jurisdiction or any other Governmental Authority shall have issued a final, non-appealable order preventing or otherwise prohibiting the consummation of the Transactions. 5.5. If this Agreement is terminated prior to Completion in accordance with Clause 5.4 above, (i) this Agreement shall become void and of no further force and effect; provided, however, that the provisions of this Clause 5.5 and Clauses 1 (Definitions and Interpretation), 11 (Announcements and Confidentiality), 12 (Notices), 13 (Governing Law, Disputes and Jurisdiction), 14.1 (Entire Agreement), 14.6 (Variation), 14.7 (No Assignment), 14.8 (Waiver), 14.9 (Severability), 14.10 (Supersession) and 14.11 (Expenses) shall survive the termination of this Agreement indefinitely and that nothing herein shall relieve any Party from any liability for fraud or any breach of the provisions of this Agreement prior to such termination; and (ii) if applicable, the Observer shall no longer be entitled to attend the meetings of the Board (or any committee thereof) and the nominees of the Purchaser appointed on the Board in accordance with Clause 6.2 shall resign with immediate effect.
Appears in 4 contracts
Sources: Share Purchase Agreement, Share Purchase Agreement (General Atlantic LLC), Share Purchase Agreement (Patni Computer Systems LTD)
Completion. 5.1. 5.1 Subject to the conditions set out in Clauses 3.1, 3.2 and 3.3Clause 3, Completion shall take place on the Completion Date.
5.2. The obligations of each Date at the office of the Company (or at such other place as the Parties under Clause 5.3 below are interdependent of each other. The Completion shall not occur unless may agree) where all of the obligations specified in Clause 5.3, have been simultaneously complied with and are fully effectiveevents described below shall occur.
5.3. 5.2 On Completion, the Completion DateVendors shall deliver to the Purchaser:
5.2.1 the share certificates in respect of the Sale Shares, together with valid share transfer forms in respect of the Sale Shares, duly executed by the Vendors in favour of the Purchaser;
5.2.2 a certified true copy of the resolutions passed by the board of directors of the Company:
(i) Subject to deductions pursuant to Clause 4.4, the Purchaser shall remit the Purchase Consideration (in immediately available funds) to the Seller’s Bank Account.
(ii) The Seller shall (a) provide to its Depository Participant duly executed DP Instructions in the prescribed form for approving the transfer of the Sale Shares to the Demat Account of the Purchaser (details of which shall be provided Purchaser, subject only to the Seller in writing as soon as practicable after the Execution Date); instrument of transfer being duly stamped;
(b) procure its Depository Participant to duly acknowledge such DP Instructions; (c) deliver a copy authorising the issue of such acknowledgement to the Purchaser; and (d) use best endeavours to procure credit new share certificate in respect of the Sale Shares in favour of the Purchaser;
(c) approving the lodgement of a notice of transfer of the Sale Shares with ACRA and the making of such entries into the corporate records of the Company as may be necessary; and
(d) approving the appointment of up to two individuals which may be nominated by the Purchase as directors of the Company, with effect from the Completion Date;
5.2.3 such waivers or consents as may be necessary, including but not limited to waivers of pre-emption rights in respect of the Sale Shares, to enable the Purchaser to be registered as holder of any and all of the Sale Shares;
5.2.4 the Service Agreements, duly executed by each of the Vendors and the relevant Group Company; and
5.2.5 the Shareholders Agreement, duly executed by each of the Vendors and the Company.
5.3 On Completion and against compliance with the provisions of Clause 5.2, the Purchaser shall deliver:
5.3.1 the Completion Payment to the Demat Account Vendors by way of cheques drawn on a bank licensed in Singapore and made out in favour of each of the Vendors, or in such other manner as may be agreed between the Vendors and the Purchaser in writing; and
5.3.2 the Shareholders Agreement, duly executed by the Purchaser.
5.4 Without prejudice to any other remedies available, if in any respect the provisions of this Clause 5 are not complied with by any Party on the Completion Date, the Party not in default may:
5.4.1 defer Completion to a date not more than 28 days after the Completion Date (iii) The Seller shall, and so that the provisions of this Clause shall apply to Completion as so deferred);
5.4.2 effect Completion so far as practicable having regard to the extent it is able defaults which have occurred (without prejudice to do so through exercise their rights hereunder); or
5.4.3 rescind this Agreement provided that the Surviving Clauses shall survive the termination of its voting rights, procure that a Board meeting is held at which this Agreement. For the following business shall be transactedavoidance of doubt:
(a) in the appointment of directors nominated by event that the Purchaser on Vendors are the Board Parties in default, the Vendors shall be approvedrefund the deposit sum referred to in Clause 4.1.1 forthwith to the Purchaser; and
(b) an extra-ordinary general meeting of in the shareholders of the Company to approve the matters set out in Clause 5.3(iii)(a) and the amendment of the Articles of Association shall be convened.
5.4. This Agreement may be terminated on or prior to the Completion Date as follows:
(i) By the mutual written consent of event that the Purchaser and or YY Group is the Seller.
(ii) By Party in default, the Seller, upon written notice to the Purchaser, if the conditions set out in Clauses 3.1 and 3.3 have not been satisfied (or satisfied subject only to Completion where applicable) or waived (where applicable) on or before 270 (two hundred seventy) days from the Execution Date or such later date as may be mutually agreed between the Parties in writing (“Long Stop Date”); provided that the Seller Vendors shall not be entitled required to terminate this Agreement pursuant refund the deposit sum referred to this Clause 5.4(ii) if Seller’s breach of this Agreement has prevented or materially delayed the consummation of the Transactions (which term for the purposes of this Clause 5.4(ii) shall not include the Financing);
(iii) By the Purchaser, upon written notice to the Seller, if the conditions set out in Clauses 3.2 and 3.3 have not been satisfied (or satisfied subject only to Completion where applicable) or waived (where applicable) on or before the Long Stop Date; provided that the Purchaser shall not be entitled to terminate this Agreement pursuant to this Clause 5.4(iii) if Purchaser’s breach of this Agreement has prevented or materially delayed the consummation of the Transactions.
(iv) By the Seller (if the Seller is not in material breach of the Seller Warranties, covenants or agreements under this Agreement so as to cause any of the conditions set forth in Clause 3.2 and/or 3.3(i) not to be satisfied), upon written notice to the Purchaser, if there has been a material inaccuracy of any statement or warranty, or any unremedied material breach of a covenant or other agreement, of the Purchaser contained in this Agreement, which violation, breach or inaccuracy would cause any of the conditions set forth in Clause 3.1 and/or 3.3 not to be satisfied as of the Completion Date, and such violation, breach or inaccuracy has not been waived by the Seller or cured by the Purchaser within 20 (twenty) Business Days after receipt by the Purchaser of written notice thereof from the Seller or is not reasonably capable of being cured prior to the Long Stop Date4.1.1.
(v) By the Purchaser (if the Purchaser is not in material breach of the Purchaser Warranties, covenants or agreements under this Agreement so as to cause any of the conditions set forth in Clause 3.1 and/or 3.3 not to be satisfied), upon written notice to the Seller, if there has been a material inaccuracy of any statement or warranty, or any unremedied material breach of a covenant or other agreement, of the Seller contained in this Agreement, which violation, breach or inaccuracy would cause any of the conditions set forth in Clauses 3.2 and/or 3.3(i) not to be satisfied as of the Completion Date, and such violation, breach or inaccuracy has not been waived by the Purchaser or cured by the Seller within 20 (twenty) Business Days after receipt by the Seller of written notice thereof from the Purchaser or is not reasonably capable of being cured prior to the Long Stop Date.
(vi) By the Seller or the Purchaser, upon written notice to the other, if a court of competent jurisdiction or any other Governmental Authority shall have issued a final, non-appealable order preventing or otherwise prohibiting the consummation of the Transactions.
5.5. If this Agreement is terminated prior to Completion in accordance with Clause 5.4 above,
(i) this Agreement shall become void and of no further force and effect; provided, however, that the provisions of this Clause 5.5 and Clauses 1 (Definitions and Interpretation), 11 (Announcements and Confidentiality), 12 (Notices), 13 (Governing Law, Disputes and Jurisdiction), 14.1 (Entire Agreement), 14.6 (Variation), 14.7 (No Assignment), 14.8 (Waiver), 14.9 (Severability), 14.10 (Supersession) and 14.11 (Expenses) shall survive the termination of this Agreement indefinitely and that nothing herein shall relieve any Party from any liability for fraud or any breach of the provisions of this Agreement prior to such termination; and
(ii) if applicable, the Observer shall no longer be entitled to attend the meetings of the Board (or any committee thereof) and the nominees of the Purchaser appointed on the Board in accordance with Clause 6.2 shall resign with immediate effect.
Appears in 3 contracts
Sources: Sale and Purchase Agreement (YY Group Holding Ltd.), Sale and Purchase Agreement (YY Group Holding Ltd.), Sale and Purchase Agreement (YY Group Holding Ltd.)
Completion. 5.1. Subject to the conditions set out in Clauses 3.1, 3.2 and 3.3, (A) Completion shall take place on within 3 Business Days following the Completion Date.
5.2. The obligations satisfaction of each of all the Parties under Clause 5.3 below are interdependent of each other. The Completion shall not occur unless all of the obligations specified conditions precedent referred to in Clause 5.3, have been simultaneously complied with and are fully effective.
5.3. On the Completion Date:
2 (i) Subject to deductions pursuant to Clause 4.4, the Purchaser shall remit the Purchase Consideration (in immediately available funds) to the Seller’s Bank Account.
(ii) The Seller shall (a) provide to its Depository Participant duly executed DP Instructions in the prescribed form for the transfer of the Sale Shares to the Demat Account of the Purchaser (details of which shall be provided to the Seller in writing as soon as practicable after the Execution Date); (b) procure its Depository Participant to duly acknowledge such DP Instructions; (c) deliver a copy of such acknowledgement to the Purchaser; and (d) use best endeavours to procure credit of the Sale Shares to the Demat Account of the Purchaser.
(iii) The Seller shall, to the extent it is able to do so through exercise of its voting rights, procure that a Board meeting is held at which the following business shall be transacted:
(a) the appointment of directors nominated by the Purchaser on the Board shall be approved; and
(b) an extra-ordinary general meeting of the shareholders of the Company to approve the matters set out in Clause 5.3(iii)(a) and the amendment of the Articles of Association shall be convened.
5.4. This Agreement may be terminated on or prior to the Completion Date as follows:
(i) By the mutual written consent of the Purchaser and the Seller.
(ii) By the Seller, upon written notice to the Purchaser, if the conditions set out in Clauses 3.1 and 3.3 have not been satisfied (or satisfied subject only to Completion where applicable) or waived (where applicable) on or before 270 (two hundred seventy) days from the Execution Date no later than 30 April 2024 or such later date as may be mutually agreed by all the parties hereto in writing) at the principal place of business of the Company, or other such place as may be agreed between the Parties parties in writing Hong Kong.
(“Long Stop Date”); provided that the Seller shall B) At Completion, all (but not be entitled to terminate this Agreement pursuant to this Clause 5.4(iipart only) if Seller’s breach of this Agreement has prevented or materially delayed the consummation of the Transactions following business shall be transacted:-
(which term for i) the purposes Company shall convene a board meeting to approve the allotment and issue of this Clause 5.4(iithe Subscription Shares to the Investor or his nominee and the issue of the share certificates and entry of the particulars of Investor or his nominee into the register of members of the Company;
(ii) the Company shall not include deliver to the Financing);Investor share certificates in respect of the Subscription Shares with the issue date being the date of Completion; and
(iii) By the Purchaser, upon written notice Investor shall deliver to the Seller, if Company:-
(a) applications completed by himself and/or his nominee for the conditions allotment of the Subscription Shares to be subscribed hereunder substantially in the form set out in Clauses 3.2 and 3.3 have not been satisfied the Schedule;
(b) a cashier order or satisfied subject only cheque in respect of payment for the Subscription Shares at the Subscription Price to Completion where applicable) the Company or waived (where applicable) on or before the Long Stop Date; as it may direct provided that notice shall be given by the Purchaser shall not be entitled Company to terminate this Agreement pursuant the Investor one Business Day prior to this Clause 5.4(iii) if Purchaser’s breach of this Agreement has prevented or materially delayed the consummation of the Transactions.Completion;
(ivC) By In the Seller (if the Seller is not in material breach of the Seller Warranties, covenants or agreements under this Agreement so as to cause event that any of the conditions set forth business referred to in Clause 3.2 and/or 3.3(i4(B) are not to be satisfied), upon written notice transacted to the Purchaser, if there has been a material inaccuracy of any statement or warranty, or any unremedied material breach of a covenant or other agreement, satisfaction of the Purchaser contained in this AgreementInvestor, which violation, breach or inaccuracy would cause any of the conditions set forth in Clause 3.1 and/or 3.3 not to be satisfied as of the Completion Date, and such violation, breach or inaccuracy has not been waived by the Seller or cured by the Purchaser within 20 (twenty) Business Days after receipt by the Purchaser of written notice thereof from the Seller or is not reasonably capable of being cured prior to the Long Stop Date.
(v) By the Purchaser (if the Purchaser is not in material breach of the Purchaser Warranties, covenants or agreements under this Agreement so as to cause any of the conditions set forth in Clause 3.1 and/or 3.3 not to be satisfied), upon written notice to the Seller, if there has been a material inaccuracy of any statement or warranty, or any unremedied material breach of a covenant or other agreement, of the Seller contained in this Agreement, which violation, breach or inaccuracy would cause any of the conditions set forth in Clauses 3.2 and/or 3.3(i) not to be satisfied as of the Completion Date, and such violation, breach or inaccuracy has not been waived by the Purchaser or cured by the Seller within 20 (twenty) Business Days after receipt by the Seller of written notice thereof from the Purchaser or is not reasonably capable of being cured prior to the Long Stop Date.
(vi) By the Seller or the Purchaser, upon written notice to the other, if a court of competent jurisdiction or any other Governmental Authority Investor shall have issued a final, non-appealable order preventing or otherwise prohibiting the consummation of the Transactions.
5.5. If this Agreement is terminated prior to Completion in accordance with Clause 5.4 above,right:-
(i) this Agreement shall become void to defer Completion in respect of the Subscription Shares to a date not more than 30 days thereafter and of no further force and effect; provided, however, so that the provisions of this Clause 5.5 and Clauses 1 4(A) to (Definitions and Interpretation), 11 (Announcements and Confidentiality), 12 (Notices), 13 (Governing Law, Disputes and Jurisdiction), 14.1 (Entire Agreement), 14.6 (Variation), 14.7 (No Assignment), 14.8 (Waiver), 14.9 (Severability), 14.10 (SupersessionB) and 14.11 (Expenses) shall survive the termination of this Agreement indefinitely and that nothing herein shall relieve any Party from any liability for fraud or any breach of apply to the provisions of this Agreement prior to such terminationcompletion as so deferred); andor
(ii) if applicable, the Observer shall no longer be entitled to attend the meetings proceed to Completion in respect of the Board Subscription Shares, subject to its rights to claim for damages; or
(or any committee thereofiii) and to terminate its obligations hereunder in respect of its subscription for the nominees Subscription Shares whereupon all obligations of the Purchaser appointed on Investor to subscribe for the Board in accordance with Clause 6.2 Subscription Shares shall resign with immediate forthwith lapse and shall be of no effect.
Appears in 3 contracts
Sources: Subscription Agreement, Investment Agreement, Subscription Agreement
Completion. 5.1. Subject to the conditions set out in Clauses 3.1, 3.2 and 3.3, 4.1 Completion shall take place on not later than 15 April 2021 (or such later date as the Parties may agree in writing) (“Completion Date”) and at such place as the Parties may agree when all (but not some only) of the events described in this Clause 4 shall occur.
5.2. The obligations of each of the Parties under Clause 5.3 below are interdependent of each other. The Completion shall not occur unless all of the obligations specified in Clause 5.3, have been simultaneously complied with and are fully effective.
5.3. On the Completion Date:
(i) Subject to deductions pursuant to Clause 4.4, the Purchaser shall remit the Purchase Consideration (in immediately available funds) to the Seller’s Bank Account.
(ii) The Seller shall (a) provide to its Depository Participant duly executed DP Instructions in the prescribed form for the transfer of the Sale Shares to the Demat Account of the Purchaser (details of which shall be provided to the Seller in writing as soon as practicable after the Execution Date); (b) procure its Depository Participant to duly acknowledge such DP Instructions; (c) deliver a copy of such acknowledgement to the Purchaser; and (d) use best endeavours to procure credit of the Sale Shares to the Demat Account of the Purchaser.
(iii) The Seller 4.2 Company shall, to the extent it is able to do so through exercise of its voting rights, procure that a Board meeting is held at which the following business shall be transacted:
(a) Allot and issue all the appointment of directors nominated by the Purchaser on the Board shall be approvedSubscription Shares credited as fully paid; and
(b) an extra-ordinary general meeting of the shareholders of the Company to approve the matters set out in Clause 5.3(iii)(a) and the amendment of the Articles of Association shall be convened.
5.4. This Agreement may be terminated on or prior deliver to the Completion Date as followsSubscriber:
(i) By the mutual written consent a certified true copy of the Purchaser resolutions of the Board approving and authorising the execution and completion and performance of the transactions contemplated under this Agreement and the Seller.issue of the Subscription Shares credited as fully paid to the Subscriber;
(ii) By a certified true copy of the Seller, upon written notice resolution of the Shareholders approving and authorising the directors of the Company to take all other steps required by the Company to allot and issue the Subscription Shares to the Purchaser, if the conditions set out in Clauses 3.1 and 3.3 have not been satisfied (or satisfied subject only to Completion where applicable) or waived (where applicable) on or before 270 (two hundred seventy) days from the Execution Date or such later date as may be mutually agreed between the Parties in writing (“Long Stop Date”); provided that the Seller shall not be entitled to terminate this Agreement Subscriber pursuant to this Clause 5.4(ii) if Seller’s breach of this Agreement has prevented or materially delayed the consummation of the Transactions (which term for the purposes of this Clause 5.4(ii) shall not include the Financing)Agreement;
(iii) By a certified true copy each of the Purchaserresolutions of the Board and Shareholders respectively, upon written notice approving and authorising the issue of [*****] ordinary shares of [*****] each or the Subscription Shares at the Subscription Price, whichever applicable and pursuant to the Seller, if the conditions set out in Clauses 3.2 and 3.3 have not been satisfied (or satisfied subject only to Completion where applicable) or waived (where applicable) on or before the Long Stop Date; provided that the Purchaser shall not be entitled to terminate this Subscription Agreement pursuant to this Clause 5.4(iii) if Purchaser’s breach of this Agreement has prevented or materially delayed the consummation of the Transactions.herein;
(iv) By a duly issued share certificate in the Seller (if the Seller is not in material breach name of the Seller Warranties, covenants or agreements under this Agreement so as to cause any Subscriber in respect of the conditions set forth in Clause 3.2 and/or 3.3(i) not to be satisfied), upon written notice to the Purchaser, if there has been a material inaccuracy of any statement or warranty, or any unremedied material breach of a covenant or other agreement, of the Purchaser contained in this Agreement, which violation, breach or inaccuracy would cause any of the conditions set forth in Clause 3.1 and/or 3.3 not to be satisfied as of the Completion Date, and such violation, breach or inaccuracy has not been waived by the Seller or cured by the Purchaser within 20 (twenty) Business Days after receipt by the Purchaser of written notice thereof from the Seller or is not reasonably capable of being cured prior to the Long Stop Date.Subscription Shares;
(v) By the Purchaser (if the Purchaser is not in material breach consents and waivers of the Purchaser Warranties, covenants or agreements under this Agreement so as to cause any Existing Shareholders of the conditions set forth Company of all rights of pre-emption and other rights which they may have in Clause 3.1 and/or 3.3 not to be satisfied), upon written notice to the Seller, if there has been a material inaccuracy of any statement or warranty, or any unremedied material breach of a covenant or other agreement, respect of the Seller contained issue of the Subscription Shares and other matters contemplated in this Agreement, which violation, breach or inaccuracy would cause any ;
(d) enter the name of the conditions set forth Subscriber in Clauses 3.2 and/or 3.3(i) not to be satisfied as the register of members of the Completion DateCompany as the holder of the Subscription Shares.
4.3 At Completion, the Subscriber shall:
(a) pay the Subscription Funds to the Company in the manner specified in Clause 2.1;
(b) deliver to the Company the Power of Attorney in substantially the form and content of the power of attorney attached in Third Schedule herein; and
(c) deliver to the Company certified true copy of the resolutions of the board of directors and shareholders (as applicable) of the Subscriber approving and authorising the execution, completion and performance of this Agreement, including but not limited to the grant, execution and performance of the Power of Attorney and such violationmatters contemplated therein.
4.4 Without prejudice to any other remedies available to either party, breach or inaccuracy has if in any respect the provisions of this Clause 4 are not been waived complied with by the Purchaser Company or cured by the Seller within 20 Subscriber, as the case may be, at Completion, the Subscriber or the Company (twentyas the case may be) Business Days after receipt by the Seller of written notice thereof from the Purchaser or is not reasonably capable of being cured prior to the Long Stop Date.may:
(via) By the Seller or the Purchaser, upon written notice defer Completion to the other, if a court of competent jurisdiction or any other Governmental Authority shall have issued a final, non-appealable order preventing or otherwise prohibiting the consummation of the Transactions.
5.5. If this Agreement is terminated prior to Completion in accordance with Clause 5.4 above,
date not later than 31 May 2021 (i) this Agreement shall become void and of no further force and effect; provided, however, so that the provisions of this Clause 5.5 and Clauses 1 4.4. shall apply to Completion as so deferred); or
(Definitions and Interpretation), 11 b) proceed to Completion so far as practicable (Announcements and Confidentiality), 12 (Notices), 13 (Governing Law, Disputes and Jurisdiction), 14.1 (Entire without prejudice to its rights under this Agreement), 14.6 ; or
(Variation), 14.7 (No Assignment), 14.8 (Waiver), 14.9 (Severability), 14.10 (Supersessionc) and 14.11 (Expenses) shall survive the termination of rescind this Agreement indefinitely and that nothing herein shall relieve any Party from any liability for fraud or any breach of the provisions of (without prejudice to its accrued rights under this Agreement prior to such termination; and
(ii) if applicable, the Observer shall no longer be entitled to attend the meetings of the Board (or any committee thereof) and the nominees of the Purchaser appointed on the Board in accordance with Clause 6.2 shall resign with immediate effectAgreement).
Appears in 3 contracts
Sources: Subscription Agreement, Subscription Agreement (CytoMed Therapeutics Pte. Ltd.), Subscription Agreement (CytoMed Therapeutics Pte. Ltd.)
Completion. 5.1. 4.1 Subject to the conditions relevant Conditions Precedent being satisfied or waived, on the relevant Completion Date, (i) the Investor shall transfer Instalment 1 or Instalment 2 (as applicable) to QIWI in accordance with and subject to the terms of this Agreement and with those implied covenants set out in Clauses 3.1, 3.2 and 3.3, Completion shall take place on the Completion Date.
5.2. The obligations of each Part 1 of the Parties under Clause 5.3 below are interdependent U.K. Law of each other. The Completion shall not occur unless all of the obligations specified in Clause 5.3Property Miscellaneous Provisions Act 1994 where a disposition is expressed to be made with full title guarantee, have been simultaneously complied with and are fully effective.
5.3. On the Completion Date:
(i) Subject to deductions pursuant to Clause 4.4, the Purchaser shall remit the Purchase Consideration (in immediately available funds) to the Seller’s Bank Account.
(ii) The Seller QIWI shall issue the Subscription Shares 1 or Subscription Shares 2 (aas applicable) provide with full title guarantee, fully paid, free from all Encumbrances and ranking pari passu with other Shares in QIWI and with all the rights attaching to its Depository Participant duly executed DP Instructions in them under the prescribed form for Articles.
4.2 Pursuant to clause 4.1, the transfer of the Sale Shares to the Demat Account of the Purchaser (details of which Completion shall be provided to the Seller in writing as soon as practicable after the Execution Date); (b) procure its Depository Participant to duly acknowledge such DP Instructions; (c) deliver a copy of such acknowledgement to the Purchaser; and (d) use best endeavours to procure credit of the Sale Shares to the Demat Account of the Purchaser.
(iii) The Seller shall, to the extent it is able to do so through exercise of its voting rights, procure that a Board meeting is held at which the following business shall be transacted:
(a) the appointment of directors nominated by the Purchaser on the Board shall be approved; and
(b) an extra-ordinary general meeting of the shareholders of the Company to approve the matters set out in Clause 5.3(iii)(a) and the amendment of the Articles of Association shall be convened.
5.4. This Agreement may be terminated on or prior to the Completion Date arranged as follows:
(i) By 4.2.1 on Completion Date 1, QIWI shall issue and allot to the mutual written consent Investor the Subscription Shares 1, and in consideration of the Purchaser issue and allotment of the Subscription Shares 1 the Investor shall transfer to QIWI Installment 1 as a contribution in kind (the Completion 1) pursuant to Transfer Agreement 1; and
4.2.2 on Completion Date 2, QIWI shall issue and allot to the Investor the Subscription Shares 2, and in consideration of the issue and allotment of the Subscription Shares 2 the Investor shall transfer to QIWI Installment 2 as a contribution in kind (the Completion 2) pursuant to Transfer Agreement 2.
4.3 Each of Completion 1 and Completion 2 shall take place simultaneously at the offices of QIWI in Nicosia, Cyprus and the Selleroffices of the Notary in Moscow, Russia or at such other place as the Investor and QIWI may agree.
4.4 On each Completion Date the Parties shall observe, deliver or perform (iior ensure that there is observed, delivered or performed) By all those documents, items and actions respectively listed in relation to that Party in Schedule 2.
4.5 No Party shall be obliged to continue to Completion 1 or Completion 2, as the Sellercase may be, upon written unless the other Party complies fully with the respective provisions of clause 4 and Schedule 2.
4.6 If either Party fails to comply with its respective obligations under clause 4 above in any respect, the other Party may, without prejudice to any other rights it may have, elect by notice to the Purchaser, if the conditions set out in Clauses 3.1 and 3.3 have not been satisfied (or satisfied subject only other Party to Completion where applicable) or waived (where applicable) on or before 270 (two hundred seventy) days from the Execution Date or such later date as may be mutually agreed between the Parties in writing (“Long Stop Date”); provided that the Seller shall not be entitled to terminate this Agreement pursuant to this Clause 5.4(ii) if Seller’s breach of this Agreement has prevented or materially delayed the consummation of the Transactions (which term for the purposes of this Clause 5.4(ii) shall not include the Financing);
(iii) By the Purchaser, upon written notice to the Seller, if the conditions set out in Clauses 3.2 and 3.3 have not been satisfied (or satisfied subject only to Completion where applicable) or waived (where applicable) on or before the Long Stop Date; provided that the Purchaser shall not be entitled to terminate this Agreement pursuant to this Clause 5.4(iii) if Purchaser’s breach of this Agreement has prevented or materially delayed the consummation of the Transactions.
(iv) By the Seller (if the Seller is not in material breach of the Seller Warranties, covenants or agreements under this Agreement so as to cause any of the conditions set forth in Clause 3.2 and/or 3.3(i) not to be satisfied), upon written notice to the Purchaser, if there has been a material inaccuracy of any statement or warranty, or any unremedied material breach of a covenant or other agreement, of the Purchaser contained in this Agreement, which violation, breach or inaccuracy would cause any of the conditions set forth in Clause 3.1 and/or 3.3 not to be satisfied as of defer the Completion Date1 or Completion 2, and such violationas the case may be, breach or inaccuracy has to a date being not been waived by the Seller or cured by the Purchaser within 20 more than 15 (twentyfifteen) Business Days after receipt by the Purchaser of written notice thereof from the Seller or is not reasonably capable of being cured prior to the Long Stop Date.
(v) By the Purchaser (if the Purchaser is not in material breach of the Purchaser Warranties, covenants or agreements under this Agreement so as to cause any of the conditions set forth in Clause 3.1 and/or 3.3 not to be satisfied), upon written notice to the Seller, if there has been a material inaccuracy of any statement or warranty, or any unremedied material breach of a covenant or other agreement, of the Seller contained in this Agreement, which violation, breach or inaccuracy would cause any of the conditions set forth in Clauses 3.2 and/or 3.3(i) not to be satisfied as of the Completion Date, and such violation, breach or inaccuracy has not been waived by the Purchaser or cured by the Seller within 20 (twenty) Business Days after receipt by the Seller of written notice thereof from the Purchaser or is not reasonably capable of being cured prior to the Long Stop Date.
(vi) By the Seller Date 1 or the Purchaser, upon written notice to the other, if a court of competent jurisdiction or any other Governmental Authority shall Completion Date 2 would otherwise have issued a final, non-appealable order preventing or otherwise prohibiting the consummation of the Transactionstaken place.
5.5. If this Agreement is terminated prior to Completion in accordance with Clause 5.4 above,
(i) this Agreement shall become void and of no further force and effect; provided, however, that the provisions of this Clause 5.5 and Clauses 1 (Definitions and Interpretation), 11 (Announcements and Confidentiality), 12 (Notices), 13 (Governing Law, Disputes and Jurisdiction), 14.1 (Entire Agreement), 14.6 (Variation), 14.7 (No Assignment), 14.8 (Waiver), 14.9 (Severability), 14.10 (Supersession) and 14.11 (Expenses) shall survive the termination of this Agreement indefinitely and that nothing herein shall relieve any Party from any liability for fraud or any breach of the provisions of this Agreement prior to such termination; and
(ii) if applicable, the Observer shall no longer be entitled to attend the meetings of the Board (or any committee thereof) and the nominees of the Purchaser appointed on the Board in accordance with Clause 6.2 shall resign with immediate effect.
Appears in 3 contracts
Sources: Deed of Subscription (Otkritie Investments Cyprus LTD), Deed of Subscription (Qiwi), Deed of Subscription (Otkritie Investments Cyprus LTD)
Completion. 5.1. Subject to the conditions set out in Clauses 3.1, 3.2 and 3.3Completion Conditions having been satisfied or waived by the [Investors], Completion shall take place on the Completion Date.
5.2Date once the events set out in clause 4.2 have occurred. The obligations of At Completion the following events shall occur: each Investor shall pay the sum set out against its name in column 3 of the Parties under Clause 5.3 below are interdependent of each other. The Completion shall not occur unless all table in clause 3.1 (being the aggregate subscription price for the [First Tranche Shares] [New Shares] [Note: amend as appropriate]) [less any fees and disbursements referred to in clause 17.1] by electronic funds transfer to the bank account of the obligations specified [Company] [Company’s Solicitors] [Note: amend as appropriate] as set out below and payment made in Clause 5.3, have been simultaneously complied accordance with and are fully effective.
5.3. On the Completion Date:
(i) Subject to deductions pursuant to Clause 4.4, the Purchaser this clause 4.2 shall remit the Purchase Consideration (in immediately available funds) to the Seller’s Bank Account.
(ii) The Seller shall (a) provide to its Depository Participant duly executed DP Instructions in the prescribed form constitute a good discharge for the transfer Investor of its obligations under this clause 4.2: Account name : [ ] Bank : [ ] Account number : [ ] Sort code : [ ] IBAN : [ ] Swift Code : [ ] a meeting of the Sale Shares to the Demat Account of the Purchaser (details of which Board shall be provided to the Seller in writing as soon as practicable after the Execution Date); (b) procure its Depository Participant to duly acknowledge such DP Instructions; (c) deliver a copy of such acknowledgement to the Purchaser; and (d) use best endeavours to procure credit of the Sale Shares to the Demat Account of the Purchaser.
(iii) The Seller shall, to the extent it is able to do so through exercise of its voting rights, procure that a Board meeting is held at which the following business Company shall: issue the [First Tranche Shares] [New Shares] [Note: amend as appropriate] credited as fully paid to the Investors and enter their names in the register of members in respect thereof; execute and deliver to the Investors certificates for the [First Tranche Shares] [New Shares]; [Note: amend as appropriate] [accept the resignations of each of [●] and [●] as directors of the Company;] appoint [●] and [●] as Investor Directors; [and] [approve and authorise the execution by the Company of the Service Agreements]; [and] pass any such other resolutions as may be required to carry out the obligations of the Company under this agreement. [the Company and each of the Founders shall be transacted:
enter into the Service Agreements.] [Subject to (a) the appointment of directors nominated Milestones having been satisfied or waived by [the Investors] [an Investor Majority] by the Purchaser on Milestone Date (the Board shall be approved; and
“Milestone Determination”) and (b) the remaining Second Completion Conditions having been satisfied or waived by [the Investors] [an extra-ordinary general meeting of Investor Majority], Second Completion shall take place on the shareholders of Second Completion Date once the Company to approve the matters events set out in Clause 5.3(iii)(a) clause 4.6 have occurred. [For the avoidance of doubt, if an Investor Majority has determined that the Second Completion Conditions have been satisfied or waived, all Investors shall be obliged to subscribe simultaneously for their respective Second Tranche Shares on the Second Completion Date and the amendment provisions of the Articles of Association clauses 4.3 to 4.7 (inclusive) shall be convenedapply equally to all Investors.
5.4. This Agreement ] [Notwithstanding clause 4.3, each Investor may be terminated on or prior to the Completion Date as follows:
at its option (i) By the mutual written consent of the Purchaser and the Seller.
(ii) By the Seller, upon by written notice to the Purchaser, if Company copied to each other Investor) require the conditions set out in Clauses 3.1 and 3.3 have not been satisfied (or satisfied subject only Company at any time prior to Completion where applicable) or waived (where applicable) on or before 270 (two hundred seventy) days from the Execution Milestone Date or such later date as may be mutually agreed between the Parties in writing (“Long Stop Date”); provided that the Seller shall not be entitled to terminate this Agreement pursuant to this Clause 5.4(ii) if Seller’s breach of this Agreement has prevented or materially delayed the consummation accept its subscription for its allocation of the Transactions Second Tranche Shares irrespective of whether the Second Completion Conditions have been satisfied, in which event the Founders (which term in so far as they are legally able to do so) and the Company shall effect Second Completion for that Investor on the purposes date so specified by that Investor, and the requirements of this Clause 5.4(ii) clause 4.6 shall not include the Financing);
(iii) By the Purchaser, upon written notice to the Seller, if the conditions set out apply in Clauses 3.2 and 3.3 have not been satisfied (or satisfied subject only to Completion where applicable) or waived (where applicable) on or before the Long Stop Date; provided respect of that the Purchaser shall not be entitled to terminate this Agreement pursuant to this Clause 5.4(iii) if Purchaser’s breach of this Agreement has prevented or materially delayed the consummation Investor for such Second Completion.] Each of the Transactions.
(iv) By Company and the Seller (if Founders shall notify the Seller Investors as soon as it or they become aware of any fact or circumstance which has caused or will or is not in material breach of the Seller Warranties, covenants or agreements under this Agreement so as likely to cause any of the conditions set forth in Clause 3.2 and/or 3.3(i) Second Completion Conditions not to be satisfied. At Second Completion the following events shall occur: each Investor shall pay the sum listed against its name in column 3 of the table set out in clause 3.2 (being the subscription price for the Second Tranche Shares subscribed by each Investor) by electronic funds transfer to the bank account of the [Company] [Company’s Solicitors] [Note: amend as appropriate] and payment made in accordance with this clause 4.6 shall constitute a good discharge for each Investor of its obligations under clauses 4.3 to 4.7 (inclusive); a meeting of the Board shall be held at which the Company shall: issue the Second Tranche Shares credited as fully paid to the Investors and enter their names in the register of members in respect thereof; execute and deliver to the Investors certificates for the Second Tranche Shares; and pass any such other resolutions as may be required to issue the Second Tranche Shares. [If an Investor does not subscribe for its Second Tranche Shares (the "Surplus Shares") on the Second Completion Date in accordance with the requirements of clauses 4.3 and 4.6 or under clause 4.4 (a "Defaulting Investor") (the date of such default being the "Default Date"), then the following shall apply: Each of the Investors (other than the Defaulting Investor) shall have the right (but not the obligation) within [30 days] of the Default Date to subscribe for the Surplus Shares pro rata to its participation in Second Completion (excluding the Defaulting Investor) and shall be entitled (but not required), with the consent of the other such Investors, within this period to subscribe for any excess Surplus Shares if any of the other Investors do not wish to subscribe for their pro rata amount of Surplus Shares, which excess Surplus Shares shall be apportioned in the amounts so subscribed, unless there are insufficient excess Surplus Shares to satisfy all such subscriptions, in which case such excess Surplus Shares shall be allotted to those subscribing Investors pro rata to the participation in Second Completion by those subscribing Investors which procedure shall be repeated until all Surplus Shares have been allocated but no allocation shall be made for more than the amounts that have been so subscribed. [In addition to and without prejudice to all other rights and remedies available to the parties, including without limitation the right to bring a claim for breach of contract, a Defaulting Investor shall be deemed (unless the Company and the Investor Majority (which shall not include the Defaulting Investor) have determined that this clause will not apply), upon the Default Date, to have served an irrevocable and unconditional written notice to the Purchaser, if there has been a material inaccuracy of any statement or warranty, or any unremedied material breach of a covenant or other agreement, Company of the Purchaser contained in this Agreement, which violation, breach or inaccuracy would cause any conversion of the conditions set forth in Clause 3.1 and/or 3.3 not to be satisfied as all of the Completion Date, and such violation, breach or inaccuracy has not been waived by the Seller or cured by the Purchaser within 20 (twenty) Business Days after receipt by the Purchaser its holdings of written notice thereof from the Seller or is not reasonably capable of being cured prior to the Long Stop Date.
(v) By the Purchaser (if the Purchaser is not in material breach of the Purchaser Warranties, covenants or agreements under this Agreement so as to cause any of the conditions set forth in Clause 3.1 and/or 3.3 not to be satisfied), upon written notice to the Seller, if there has been a material inaccuracy of any statement or warranty, or any unremedied material breach of a covenant or other agreement, of the Seller contained in this Agreement, which violation, breach or inaccuracy would cause any of the conditions set forth in Clauses 3.2 and/or 3.3(i) not to be satisfied as of the Completion Date, and such violation, breach or inaccuracy has not been waived by the Purchaser or cured by the Seller within 20 (twenty) Business Days after receipt by the Seller of written notice thereof from the Purchaser or is not reasonably capable of being cured prior to the Long Stop Date.
(vi) By the Seller or the Purchaser, upon written notice to the other, if a court of competent jurisdiction or any other Governmental Authority shall have issued a final, non-appealable order preventing or otherwise prohibiting the consummation of the Transactions.
5.5. If this Agreement is terminated prior to Completion Series A Shares into Ordinary Shares in accordance with Clause 5.4 above,
(i) this Agreement shall become void and of no further force and effect; provided, however, that the provisions of this Clause 5.5 and Clauses 1 (Definitions and Interpretation), 11 (Announcements and Confidentiality), 12 (Notices), 13 (Governing Law, Disputes and Jurisdiction), 14.1 (Entire Agreement), 14.6 (Variation), 14.7 (No Assignment), 14.8 (Waiver), 14.9 (Severability), 14.10 (Supersession) and 14.11 (Expenses) shall survive the termination of this Agreement indefinitely and that nothing herein shall relieve any Party from any liability for fraud or any breach article [9.1] of the provisions of this Agreement prior New Articles and shall be required to such termination; and
(ii) if applicable, comply with the Observer shall no longer be entitled to attend requirements set out in article [9] the meetings New Articles in respect of the Board (or any committee thereof) and the nominees conversion of the Purchaser appointed on the Board in accordance with Clause 6.2 shall resign with immediate effectsuch shares.] [Note: see drafting note.]
Appears in 3 contracts
Sources: Subscription and Shareholders' Agreement, Subscription and Shareholders' Agreement, Subscription and Shareholders' Agreement
Completion. 5.1. Subject to the conditions set out in Clauses 3.1, 3.2 and 3.3, Completion shall take place on the Completion Date.
5.2. The obligations of each of the Parties under Clause 5.3 below are interdependent of each other. The Completion shall not occur unless all of the obligations specified in Clause 5.3, have been simultaneously complied with and are fully effective.
5.3. On the Completion Date:
(i) Subject to deductions pursuant to Clause 4.4, the The Purchaser shall remit the Purchase Consideration (in immediately available funds) to the Seller’s Bank Account.
(ii) The Seller shall (aexecute an instrument of transfer in respect of the Sale ADSs to the Purchaser as contemplated by Section 2.04 of the Deposit Agreement, deliver it to the Purchaser together with the depositary receipt(s) provide representing the Sale ADSs, and instruct the Depositary to its Depository Participant duly executed DP Instructions in the prescribed form for register the transfer of the Sale Shares to ADSs in the Demat Account of the Purchaser (details of which shall be provided to the Seller in writing as soon as practicable after the Execution Date); (b) procure its Depository Participant to duly acknowledge such DP Instructions; (c) deliver a copy of such acknowledgement to the Purchaser; and (d) use best endeavours to procure credit of the Sale Shares to the Demat Account name of the Purchaser.
(iii) The Seller shall, to the extent it is able to do so through exercise of its voting rights, the Seller shall also procure that a Board meeting is held at which the following business shall be transacted:
(a) the appointment of directors nominated by the Purchaser on the Board shall be approved; and
(b) an extra-ordinary general meeting of the shareholders of the Company to approve the matters set out in Clause 5.3(iii)(a) and the amendment of the Articles of Association shall be convened.
5.4. This Agreement may be terminated on or prior to the Completion Date as follows:
(i) By the mutual written consent of the Purchaser and the Seller.
(ii) By the Seller, upon written notice to the Purchaser, if the conditions set out in Clauses 3.1 and 3.3 have not been satisfied (or satisfied subject only to Completion where applicable) or waived (where applicable) on or before 270 (two hundred seventy) days from the Execution Date or such later date as may be mutually agreed between the Parties in writing (“Long Stop Date”); provided that the Seller shall not be entitled to terminate this Agreement pursuant to this Clause 5.4(ii) if Seller’s breach of this Agreement has prevented or materially delayed the consummation of the Transactions (which term for the purposes of this Clause 5.4(ii) shall not include the Financing);
(iii) By the Purchaser, upon written notice to the Seller, if the conditions set out in Clauses 3.2 and 3.3 have not been satisfied (or satisfied subject only to Completion where applicable) or waived (where applicable) on or before the Long Stop Date; provided that the Purchaser shall not be entitled to terminate this Agreement pursuant to this Clause 5.4(iii) if Purchaser’s breach of this Agreement has prevented or materially delayed the consummation of the Transactions.
(iv) By the Seller (if the Seller is not in material breach of the Seller Warranties, covenants or agreements under this Agreement so as to cause any of the conditions set forth in Clause 3.2 and/or 3.3(i) not to be satisfied), upon written notice to the Purchaser, if there has been a material inaccuracy of any statement or warranty, or any unremedied material breach of a covenant or other agreement, of the Purchaser contained in this Agreement, which violation, breach or inaccuracy would cause any of the conditions set forth in Clause 3.1 and/or 3.3 not to be satisfied as of the Completion Date, and such violation, breach or inaccuracy has not been waived by the Seller or cured by the Purchaser within 20 (twenty) Business Days after receipt by the Purchaser of written notice thereof from the Seller or is not reasonably capable of being cured prior to the Long Stop Date.
(v) By the Purchaser (if the Purchaser is not in material breach of the Purchaser Warranties, covenants or agreements under this Agreement so as to cause any of the conditions set forth in Clause 3.1 and/or 3.3 not to be satisfied), upon written notice to the Seller, if there has been a material inaccuracy of any statement or warranty, or any unremedied material breach of a covenant or other agreement, of the Seller contained in this Agreement, which violation, breach or inaccuracy would cause any of the conditions set forth in Clauses 3.2 and/or 3.3(i) not to be satisfied as of the Completion Date, and such violation, breach or inaccuracy has not been waived by the Purchaser or cured by the Seller within 20 (twenty) Business Days after receipt by the Seller of written notice thereof from the Purchaser or is not reasonably capable of being cured prior to the Long Stop Date.
(vi) By the Seller or the Purchaser, upon written notice to the other, if a court of competent jurisdiction or any other Governmental Authority shall have issued a final, non-appealable order preventing or otherwise prohibiting the consummation of the Transactions.
5.5. If this Agreement is terminated prior to Completion in accordance with Clause 5.4 above,
(i) this Agreement shall become void and of no further force and effect; provided, however, that the provisions of this Clause 5.5 and Clauses 1 (Definitions and Interpretation), 11 (Announcements and Confidentiality), 12 (Notices), 13 (Governing Law, Disputes and Jurisdiction), 14.1 (Entire Agreement), 14.6 (Variation), 14.7 (No Assignment), 14.8 (Waiver), 14.9 (Severability), 14.10 (Supersession) and 14.11 (Expenses) shall survive the termination of this Agreement indefinitely and that nothing herein shall relieve any Party from any liability for fraud or any breach of the provisions of this Agreement prior to such termination; and
(ii) if applicable, the Observer shall no longer be entitled to attend the meetings of the Board (or any committee thereof) and the nominees of the Purchaser appointed on the Board in accordance with Clause 6.2 shall resign with immediate effect.
Appears in 3 contracts
Sources: Securities Purchase Agreement (Patni Computer Systems LTD), Securities Purchase Agreement (General Atlantic LLC), Securities Purchase Agreement (Igate Corp)
Completion. 5.1. Subject to 5.1 Completion of the conditions set out in Clauses 3.1, 3.2 sale and 3.3, Completion purchase hereby agreed shall take place on immediately following the Completion Dateexecution and exchange of this Agreement at the offices of the Purchaser’s Solicitors (or at such other place as the Vendor and the Purchaser shall agree).
5.2. The obligations of each of 5.2 At Completion, the Parties under Vendor (and NPS Ltd with respect to Clause 5.3 below are interdependent of each other. The Completion shall not occur unless all of 5.2 (v), (vi) and (vii)), shall:
(a) deliver or cause to be delivered to the obligations specified in Clause 5.3, have been simultaneously complied with and are fully effective.
5.3. On the Completion DatePurchaser:
(i) Subject to deductions pursuant to Clause 4.4, a copy of this Agreement duly executed by the Purchaser shall remit the Purchase Consideration (in immediately available funds) to the Seller’s Bank AccountVendor.
(ii) The Seller all physical items among the Assets hereby agreed to be sold title to which is capable of passing by physical delivery;
(iii) the written consent of any debenture holder or mortgagee or other person whose consent is necessary to the sale of any of the Contracts and/or Assets together with the appropriate release;
(iv) written confirmation all third-party consents required to give the Purchaser the full benefits of the Assets;
(v) a copy of the minutes of a meeting of the directors of the Vendor and NPS Ltd authorising the sale of the Contracts and Assets for the Consideration and authorising the execution by the Vendor and NPS Ltd of this Agreement;
(vi) provide or make available any and all records relating to National Insurance and PAYE payments for the Transferring Employees and to section 49 of the VATA 1994; and
(vii) provide or make available or relevant personal data relating to the Employees;
(viii) evidence, in an agreed form, of the full-service history of each Turbine;
(ix) copies of each Contract and any other relevant and/or ancillary documentation in respect of the Contracts and Assets;
(x) source code for the software that is licensed pursuant to the License Agreement;
(xi) a copy of the License Agreement duly executed by the Vendor;
(xii) A copy of the Escrow Agreement duly executed by the Vendor and NSE; and
(xiii) Evidence of the waiver of security and consent from Comerica Bank in relation to this Agreement.
(b) Support Purchaser from Completion to March 31, 2019 in Purchaser’s efforts (on equipment including hardware and third party software purchased at the Purchaser’s cost but at the Vendor’s direction) to implement and install a fully assembled and operational IT System;
5.3 Subject to the due performance and compliance in full by the Vendor of its obligations under Clause 5.2 the Purchaser shall at Completion:
(a) provide Make the payment referred to its Depository Participant duly executed DP Instructions in Clause 4.2
(b) deliver or cause to be delivered to the prescribed form for the transfer Vendor:
(i) a copy of the Sale Shares to minutes of the Demat Account meeting of the directors of the Purchaser authorising the purchase of the Contracts and Assets for the Consideration and authorising the execution by the Purchaser of this Agreement; and
(details of which shall be provided to the Seller in writing as soon as practicable after the Execution Date); (bii) procure its Depository Participant to duly acknowledge such DP Instructions; (c) deliver a copy of such acknowledgement to the Purchaser; and (d) use best endeavours to procure credit of the Sale Shares to the Demat Account of this Agreement duly executed by the Purchaser.
(iii) The Seller shall, to a copy of the extent it is able to do so through exercise of its voting rights, procure that a Board meeting is held at which the following business shall be transacted:
(a) the appointment of directors nominated License Agreement duly executed by the Purchaser on the Board shall be approved; and
(b) an extra-ordinary general meeting of the shareholders of the Company to approve the matters set out in Clause 5.3(iii)(a) and the amendment of the Articles of Association shall be convenedPurchaser.
5.4. This Agreement may be terminated on or prior to the Completion Date as follows:
(i) By the mutual written consent of the Purchaser and the Seller.
(ii) By the Seller, upon written notice to the Purchaser, if the conditions set out in Clauses 3.1 and 3.3 have not been satisfied (or satisfied subject only to Completion where applicable) or waived (where applicable) on or before 270 (two hundred seventy) days from the Execution Date or such later date as may be mutually agreed between the Parties in writing (“Long Stop Date”); provided that the Seller shall not be entitled to terminate this Agreement pursuant to this Clause 5.4(ii) if Seller’s breach of this Agreement has prevented or materially delayed the consummation of the Transactions (which term for the purposes of this Clause 5.4(ii) shall not include the Financing);
(iii) By the Purchaser, upon written notice to the Seller, if the conditions set out in Clauses 3.2 and 3.3 have not been satisfied (or satisfied subject only to Completion where applicable) or waived (where applicable) on or before the Long Stop Date; provided that the Purchaser shall not be entitled to terminate this Agreement pursuant to this Clause 5.4(iii) if Purchaser’s breach of this Agreement has prevented or materially delayed the consummation of the Transactions.
(iv) By the Seller (if the Seller is not in material breach of the Seller Warranties, covenants or agreements under this Agreement so as to cause any of the conditions set forth in Clause 3.2 and/or 3.3(i) not to be satisfied), upon written notice to the Purchaser, if there has been a material inaccuracy of any statement or warranty, or any unremedied material breach of a covenant or other agreement, of the Purchaser contained in this Agreement, which violation, breach or inaccuracy would cause any of the conditions set forth in Clause 3.1 and/or 3.3 not to be satisfied as of the Completion Date, and such violation, breach or inaccuracy has not been waived by the Seller or cured by the Purchaser within 20 (twenty) Business Days after receipt by the Purchaser of written notice thereof from the Seller or is not reasonably capable of being cured prior to the Long Stop Date.
(v) By the Purchaser (if the Purchaser is not in material breach of the Purchaser Warranties, covenants or agreements under this Agreement so as to cause any of the conditions set forth in Clause 3.1 and/or 3.3 not to be satisfied), upon written notice to the Seller, if there has been a material inaccuracy of any statement or warranty, or any unremedied material breach of a covenant or other agreement, of the Seller contained in this Agreement, which violation, breach or inaccuracy would cause any of the conditions set forth in Clauses 3.2 and/or 3.3(i) not to be satisfied as of the Completion Date, and such violation, breach or inaccuracy has not been waived by the Purchaser or cured by the Seller within 20 (twenty) Business Days after receipt by the Seller of written notice thereof from the Purchaser or is not reasonably capable of being cured prior to the Long Stop Date.
(vi) By the Seller or the Purchaser, upon written notice to the other, if a court of competent jurisdiction or any other Governmental Authority shall have issued a final, non-appealable order preventing or otherwise prohibiting the consummation of the Transactions.
5.5. If this Agreement is terminated prior to Completion in accordance with Clause 5.4 above,
(i) this Agreement shall become void and of no further force and effect; provided, however, that the provisions of this Clause 5.5 and Clauses 1 (Definitions and Interpretation), 11 (Announcements and Confidentiality), 12 (Notices), 13 (Governing Law, Disputes and Jurisdiction), 14.1 (Entire Agreement), 14.6 (Variation), 14.7 (No Assignment), 14.8 (Waiver), 14.9 (Severability), 14.10 (Supersession) and 14.11 (Expenses) shall survive the termination of this Agreement indefinitely and that nothing herein shall relieve any Party from any liability for fraud or any breach of the provisions of this Agreement prior to such termination; and
(ii) if applicable, the Observer shall no longer be entitled to attend the meetings of the Board (or any committee thereof) and the nominees of the Purchaser appointed on the Board in accordance with Clause 6.2 shall resign with immediate effect.
Appears in 2 contracts
Sources: Agreement for the Sale and Purchase of Contracts and Assets, Agreement for the Sale and Purchase of Contracts and Assets (Northern Power Systems Corp.)
Completion. 5.1. 5.1 Subject to fulfilment or waiver of all the conditions set out in Clauses 3.1, 3.2 and 3.3Conditions, Completion shall take place on the Completion DateDate at such place as the Parties may agree when all (and not part only) the acts and requirements set out in Clauses 5.2 and 5.3 shall be complied with.
5.2. The obligations of each of 5.2 At Completion, the Parties under Clause 5.3 below are interdependent of each other. The Completion shall not occur unless all of the obligations specified in Clause 5.3, have been simultaneously complied with and are fully effective.
5.3. On the Completion DateSeller shall:
(ia) Subject deliver to deductions pursuant to Clause 4.4, the Purchaser shall remit duly completed and signed stock power forms, authorising and instructing the Purchase Consideration (in immediately available funds) Share Registrar to the Seller’s Bank Account.
(ii) The Seller shall (a) provide to its Depository Participant duly executed DP Instructions in the prescribed form for the transfer record ownership of the Sale Shares to the Demat Account account of the Purchaser (details of which shall be provided to in the Seller in writing as soon as practicable after the Execution Date); (b) procure its Depository Participant to duly acknowledge such DP Instructions; (c) deliver a copy of such acknowledgement to the Purchaser; and (d) use best endeavours to procure credit share register of the Sale Shares to the Demat Account of the Purchaser.
(iii) The Seller shall, to the extent it is able to do so through exercise of its voting rights, procure that a Board meeting is held at which the following business shall be transacted:
(a) the appointment of directors nominated by the Purchaser on the Board shall be approvedCompany; and
(b) an extra-ordinary general meeting of the shareholders of procure the Company to approve the matters set out in Clause 5.3(iii)(a) and the amendment of the Articles of Association shall be convened.
5.4. This Agreement may be terminated on or prior deliver to the Completion Date as follows:
(iPurchaser a share certificate(s) By in the mutual written consent name of the Purchaser and in respect of the Seller.Sale Shares. Such share certificate shall bear a legend in substantially the form set forth below (in addition to any other legends required under other applicable Laws):
(ii) By 5.3 At Completion, the Seller, upon written notice Purchaser shall pay to the Purchaser, if the conditions set out in Clauses 3.1 and 3.3 have not been satisfied (or satisfied subject only to Completion where applicable) or waived (where applicable) on or before 270 (two hundred seventy) days from the Execution Date or such later date as may be mutually agreed between the Parties in writing (“Long Stop Date”); provided that the Seller shall not be entitled to terminate this Agreement pursuant to this Clause 5.4(ii) if Seller’s breach of this Agreement has prevented or materially delayed the consummation of the Transactions (which term for the purposes of this Clause 5.4(ii) shall not include the Financing);
(iii) By the Purchaser, upon written notice an amount equal to the Seller, if Consideration in the conditions manner set out in Clauses 3.2 and 3.3 have 3.3.
5.4 None of the Parties shall be obliged to complete the sale and purchase of the Sale Shares unless the other Party complies fully with the requirements of Clauses 5.2 and 5.3 which are expressed to be the other Party’s obligations.
5.5 If Completion does not been satisfied take place on the Completion Date (the “Intended Completion Date”) due to the Purchaser or satisfied subject only Seller failing to comply with any of its obligations under this Clause 5 (whether such failure by such Party amounts to a repudiatory breach or not), then the Seller may (in the case of a default by the Purchaser) or the Purchaser may (in the case of a default by the Seller) (the “Non-Defaulting Party”) in their respective absolute discretion, by written notice to the Purchaser or the Seller (as the case may be) (the “Defaulting Party”), and without prejudice to any other rights:
(a) proceed to Completion where applicableon that date, to the extent that the Non-Defaulting Party is ready, able and willing to do so, and specify a later date by which the Defaulting Party shall be obliged to complete its relevant outstanding obligations;
(b) or waived (where applicable) on or before elect to defer Completion to a Business Day no later than the Long Stop Date; provided that the Purchaser shall not be entitled to or
(c) terminate this Agreement pursuant to this Clause 5.4(iii) if Purchaser’s breach of this Agreement has prevented or materially delayed the consummation of the TransactionsAgreement.
(iv) By the Seller (if the Seller is not in material breach of the Seller Warranties, covenants or agreements under this Agreement so as to cause any of the conditions set forth in Clause 3.2 and/or 3.3(i) not to be satisfied), upon written notice to the Purchaser, if there has been a material inaccuracy of any statement or warranty, or any unremedied material breach of a covenant or other agreement, of the Purchaser contained in this Agreement, which violation, breach or inaccuracy would cause any of the conditions set forth in Clause 3.1 and/or 3.3 not to be satisfied as of the Completion Date, and such violation, breach or inaccuracy has not been waived by the Seller or cured by the Purchaser within 20 (twenty) Business Days after receipt by the Purchaser of written notice thereof from the Seller or is not reasonably capable of being cured prior to the Long Stop Date.
(v) By the Purchaser (if the Purchaser is not in material breach of the Purchaser Warranties, covenants or agreements under this Agreement so as to cause any of the conditions set forth in Clause 3.1 and/or 3.3 not to be satisfied), upon written notice to the Seller, if there has been a material inaccuracy of any statement or warranty, or any unremedied material breach of a covenant or other agreement, of the Seller contained in this Agreement, which violation, breach or inaccuracy would cause any of the conditions set forth in Clauses 3.2 and/or 3.3(i) not to be satisfied as of the Completion Date, and such violation, breach or inaccuracy has not been waived by the Purchaser or cured by the Seller within 20 (twenty) Business Days after receipt by the Seller of written notice thereof from the Purchaser or is not reasonably capable of being cured prior to the Long Stop Date.
(vi) By the Seller or the Purchaser, upon written notice to the other, if a court of competent jurisdiction or any other Governmental Authority shall have issued a final, non-appealable order preventing or otherwise prohibiting the consummation of the Transactions.
5.5. If this Agreement is terminated prior to Completion in accordance with Clause 5.4 above,
(i) this Agreement shall become void and of no further force and effect; provided, however, that the provisions of this Clause 5.5 and Clauses 1 (Definitions and Interpretation), 11 (Announcements and Confidentiality), 12 (Notices), 13 (Governing Law, Disputes and Jurisdiction), 14.1 (Entire Agreement), 14.6 (Variation), 14.7 (No Assignment), 14.8 (Waiver), 14.9 (Severability), 14.10 (Supersession) and 14.11 (Expenses) shall survive the termination of this Agreement indefinitely and that nothing herein shall relieve any Party from any liability for fraud or any breach of the provisions of this Agreement prior to such termination; and
(ii) if applicable, the Observer shall no longer be entitled to attend the meetings of the Board (or any committee thereof) and the nominees of the Purchaser appointed on the Board in accordance with Clause 6.2 shall resign with immediate effect.
Appears in 2 contracts
Sources: Sale and Purchase Agreement (GHGK Innovation LTD), Sale and Purchase Agreement (GHGK Innovation LTD)
Completion. 5.1. Subject to the conditions set out in Clauses 3.1, 3.2 and 3.3, 4.1 Completion shall take place on on, and in any event by no later than the first Business Day immediately after, the date of ATA Completion Dateat the offices of ▇▇▇▇▇▇▇▇▇ and May at ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇ (or at such other place as the parties may agree).
5.2. The obligations 4.2 On or before the date of each Completion, the Company shall procure that a meeting of the Parties under Clause 5.3 below are interdependent of each other. The Completion Board shall not occur unless all of be held at which the obligations specified in Clause 5.3, have been simultaneously complied with Board will approve and are fully effective.
5.3. On the Completion Dateauthorise:
(ia) Subject the issue and allotment of the Subscription Shares, credited as fully paid, to deductions pursuant the Investor, free from Encumbrances and ranking pari passu in all respects with the existing Shares;
(b) the entry of the Investor’s name in the Company’s register of members as holder of the Subscription Shares; and
(c) the Company Secretary to Clause 4.4, file all appropriate resolutions and forms with the Purchaser Registrar of Companies within the time limits prescribed for filing each of them.
4.3 On the date of Completion:
(a) the Investor shall remit the Purchase Consideration (pay an amount in cash in immediately available funds) funds equal to the Seller’s Bank Account.
(ii) The Seller shall (a) provide to its Depository Participant duly executed DP Instructions in the prescribed form for the transfer of the Sale Shares Subscription Amount to the Demat Account of Company by electronic transfer to the Purchaser Company’s bank account (details of which shall be provided to the Seller Investor in writing as soon as practicable after at least 5 Business Days prior to Completion) and payment made in accordance with this sub-clause 4.3(a) shall discharge the Execution Date); (b) procure its Depository Participant to duly acknowledge such DP Instructions; (c) deliver a copy of such acknowledgement to the Purchaser; and (d) use best endeavours to procure credit obligations of the Sale Shares to the Demat Account of the Purchaser.
Investor under clause 2.1 (iii) The Seller shall, to the extent it is able to do so through exercise of its voting rights, procure that a Board meeting is held at which the following business shall be transacted:
(a) the appointment of directors nominated by the Purchaser on the Board shall be approvedSubscription); and
(b) an extra-ordinary general meeting of the shareholders of the Company to approve the matters set out in Clause 5.3(iii)(a) and the amendment of the Articles of Association shall be convened.
5.4. This Agreement may be terminated on or prior to the Completion Date as followsshall:
(i) By deliver to the mutual written consent Investor a copy of the Purchaser and the Seller.
(ii) By the Seller, upon written notice to the Purchaser, if the conditions set out in Clauses 3.1 and 3.3 have not been satisfied (or satisfied subject only to Completion where applicable) or waived (where applicable) on or before 270 (two hundred seventy) days from the Execution Date or such later date as may be mutually agreed between the Parties in writing (“Long Stop Date”); provided that the Seller shall not be entitled to terminate this Agreement pursuant to this Clause 5.4(ii) if Seller’s breach of this Agreement has prevented or materially delayed the consummation minutes of the Transactions (which term for the purposes of this Clause 5.4(ii) shall not include the Financing);
(iii) By the Purchaser, upon written notice to the Seller, if the conditions set out in Clauses 3.2 and 3.3 have not been satisfied (or satisfied subject only to Completion where applicable) or waived (where applicable) on or before the Long Stop Date; provided that the Purchaser shall not be entitled to terminate this Agreement pursuant to this Clause 5.4(iii) if Purchaser’s breach of this Agreement has prevented or materially delayed the consummation meeting of the Transactions.
(iv) By the Seller (if the Seller is not Board referred to in material breach of the Seller Warranties, covenants or agreements under this Agreement so as to cause any of the conditions set forth in Clause 3.2 and/or 3.3(i) not to be satisfied), upon written notice to the Purchaser, if there has been a material inaccuracy of any statement or warranty, or any unremedied material breach of a covenant or other agreement, of the Purchaser contained in this Agreement, which violation, breach or inaccuracy would cause any of the conditions set forth in Clause 3.1 and/or 3.3 not to be satisfied as of the Completion Date, and such violation, breach or inaccuracy has not been waived by the Seller or cured by the Purchaser within 20 (twenty) Business Days after receipt by the Purchaser of written notice thereof from the Seller or is not reasonably capable of being cured prior to the Long Stop Date.
(v) By the Purchaser (if the Purchaser is not in material breach of the Purchaser Warranties, covenants or agreements under this Agreement so as to cause any of the conditions set forth in Clause 3.1 and/or 3.3 not to be satisfied), upon written notice to the Seller, if there has been a material inaccuracy of any statement or warranty, or any unremedied material breach of a covenant or other agreement, of the Seller contained in this Agreement, which violation, breach or inaccuracy would cause any of the conditions set forth in Clauses 3.2 and/or 3.3(i) not to be satisfied as of the Completion Date, and such violation, breach or inaccuracy has not been waived by the Purchaser or cured by the Seller within 20 (twenty) Business Days after receipt by the Seller of written notice thereof from the Purchaser or is not reasonably capable of being cured prior to the Long Stop Date.
(vi) By the Seller or the Purchaser, upon written notice to the other, if a court of competent jurisdiction or any other Governmental Authority shall have issued a final, non-appealable order preventing or otherwise prohibiting the consummation of the Transactions.
5.5. If this Agreement is terminated prior to Completion in accordance with Clause 5.4 above,
(i) this Agreement shall become void and of no further force and effect; provided, however, that the provisions of this Clause 5.5 and Clauses 1 (Definitions and Interpretation), 11 (Announcements and Confidentiality), 12 (Notices), 13 (Governing Law, Disputes and Jurisdiction), 14.1 (Entire Agreement), 14.6 (Variation), 14.7 (No Assignment), 14.8 (Waiver), 14.9 (Severability), 14.10 (Supersession) and 14.11 (Expenses) shall survive the termination of this Agreement indefinitely and that nothing herein shall relieve any Party from any liability for fraud or any breach of the provisions of this Agreement prior to such terminationclause 4.2; and
(ii) if applicableprocure the crediting of the Subscription Shares to the CREST account of the Investor as shall have been notified to the Company by the Investor in writing at least three (3) Business Days prior to Completion unless the Investor has served notice pursuant to clause 2.3(b), when in such circumstances it shall execute and deliver to the Investor a share certificate in respect of the Subscription Shares.
4.4 The Company shall procure that Admission occurs on the Business Day next following the date of Completion.
4.5 The Company shall procure that, promptly after Completion, the Observer shall no longer be entitled to attend Investor is registered as the meetings holder of the Board (or any committee thereof) and the nominees of the Purchaser appointed on the Board Subscription Shares in accordance with Clause 6.2 regulation 20 of the CREST Regulations unless the Investor has served notice pursuant to clause 2.3(b), when in such circumstances it shall resign with immediate effectenter the name of the Investor in the register of members in respect of the Subscription Shares.
Appears in 2 contracts
Sources: Share Subscription Agreement, Share Subscription Agreement (CSR PLC)
Completion. 5.1. Subject to the conditions set out in Clauses 3.1, 3.2 and 3.3, 6.1 Completion shall take place on the Completion DateDate at the offices of the Purchaser’s or the Seller Lawyers, in each case taking into account applicable tax considerations, or at such other place as is agreed in writing by the Seller and Purchaser.
5.26.2 At Completion the Seller shall undertake those actions listed in Part 1of Schedule 2 (Completion Arrangements) and the Purchaser shall undertake those actions listed in Part 2 of Schedule 2 (Completion Arrangements). The Payment of the Closing Amount to the Seller’s Designated Account shall discharge the obligations of each the Purchaser (a) pursuant to Clause 6.4 and (b) to pay the Closing Amount, and the Purchaser shall not be concerned as to the application of the Parties Closing Amount between the Relevant Sellers.
6.3 If: (i) the Seller breaches its obligations under Clause 5.3 below are interdependent 6.2 and under paragraph 1, 2.3, 2.5, 3.2, 3.4, 3.5, 3.6 or 3.7 of each other. The Part 1 of Schedule 2 (Completion Arrangements); or (ii) the Purchaser breaches its obligations under Clause 6.2 and under paragraph 1, 2, 3 or 4 of Part 2 of Schedule 2 (Completion Arrangements) on the Completion Date, the Seller (in the case of a breach by the Purchaser) or the Purchaser (in the case of a breach by the Seller) shall not occur unless all be obliged to complete this Agreement and the Seller or, as the case may be, the Purchaser, may elect by notice in writing to the other to:
(a) defer Completion (with the provisions of this Clause 6 applying to Completion as so deferred);
(b) proceed to Completion as far as practicable (without limiting its rights and remedies under this Agreement); or
(c) treat this Agreement as terminated for breach of condition subject to, and on the obligations specified in basis set out in, Clause 5.3, have been simultaneously complied with and are fully effective13.5.
5.3. On 6.4 Immediately following Completion but on the Completion Date:
(ia) Subject to deductions pursuant to Clause 4.4, the Purchaser shall remit procure that each relevant Group Company repays to the Purchase Consideration (in immediately available funds) to relevant member of the Seller’s Bank Account.
Group (iiother than another Group Company) The Seller the amount of any Estimated Intra-Group Financing Payables in respect of that Group Company, and shall (a) provide to its Depository Participant duly executed DP Instructions in acknowledge on behalf of each relevant Group Company the prescribed form for the transfer payment of the Sale Shares to the Demat Account of the Purchaser (details of which shall be provided to the Seller Estimated Intra-Group Financing Receivables in writing as soon as practicable after the Execution Dateaccordance with Clause 6.4(b); (b) procure its Depository Participant to duly acknowledge such DP Instructions; (c) deliver a copy of such acknowledgement to the Purchaser; and (d) use best endeavours to procure credit of the Sale Shares to the Demat Account of the Purchaser.
(iii) The Seller shall, to the extent it is able to do so through exercise of its voting rights, procure that a Board meeting is held at which the following business shall be transacted:
(a) the appointment of directors nominated by the Purchaser on the Board shall be approved; and
(b) an extra-ordinary general meeting of the shareholders of the Company to approve the matters set out in Clause 5.3(iii)(a) and the amendment of the Articles of Association shall be convened.
5.4. This Agreement may be terminated on or prior to the Completion Date as follows:
(i) By the mutual written consent of the Purchaser and the Seller.
(ii) By the Seller, upon written notice to the Purchaser, if the conditions set out in Clauses 3.1 and 3.3 have not been satisfied (or satisfied subject only to Completion where applicable) or waived (where applicable) on or before 270 (two hundred seventy) days from the Execution Date or such later date as may be mutually agreed between the Parties in writing (“Long Stop Date”); provided that the Seller shall not be entitled to terminate this Agreement pursuant to this Clause 5.4(ii) if procure that each relevant member of the Seller’s breach Group (other than a Group Company) repays to the relevant Group Company the amount of this Agreement has prevented or materially delayed the consummation any Estimated Intra-Group Financing Receivables in respect of that Group Company, and shall acknowledge on behalf of each relevant member of the Transactions (which term for Seller’s Group the purposes of this Clause 5.4(ii) shall not include the Financing);
(iii) By the Purchaser, upon written notice to the Seller, if the conditions set out in Clauses 3.2 and 3.3 have not been satisfied (or satisfied subject only to Completion where applicable) or waived (where applicable) on or before the Long Stop Date; provided that the Purchaser shall not be entitled to terminate this Agreement pursuant to this Clause 5.4(iii) if Purchaser’s breach of this Agreement has prevented or materially delayed the consummation payment of the Transactions.
(iv) By the Seller (if the Seller is not in material breach of the Seller Warranties, covenants or agreements under this Agreement so as to cause any of the conditions set forth in Clause 3.2 and/or 3.3(i) not to be satisfied), upon written notice to the Purchaser, if there has been a material inaccuracy of any statement or warranty, or any unremedied material breach of a covenant or other agreement, of the Purchaser contained in this Agreement, which violation, breach or inaccuracy would cause any of the conditions set forth in Clause 3.1 and/or 3.3 not to be satisfied as of the Completion Date, and such violation, breach or inaccuracy has not been waived by the Seller or cured by the Purchaser within 20 (twenty) Business Days after receipt by the Purchaser of written notice thereof from the Seller or is not reasonably capable of being cured prior to the Long Stop Date.
(v) By the Purchaser (if the Purchaser is not in material breach of the Purchaser Warranties, covenants or agreements under this Agreement so as to cause any of the conditions set forth in Clause 3.1 and/or 3.3 not to be satisfied), upon written notice to the Seller, if there has been a material inaccuracy of any statement or warranty, or any unremedied material breach of a covenant or other agreement, of the Seller contained in this Agreement, which violation, breach or inaccuracy would cause any of the conditions set forth in Clauses 3.2 and/or 3.3(i) not to be satisfied as of the Completion Date, and such violation, breach or inaccuracy has not been waived by the Purchaser or cured by the Seller within 20 (twenty) Business Days after receipt by the Seller of written notice thereof from the Purchaser or is not reasonably capable of being cured prior to the Long Stop Date.
(vi) By the Seller or the Purchaser, upon written notice to the other, if a court of competent jurisdiction or any other Governmental Authority shall have issued a final, nonEstimated Intra-appealable order preventing or otherwise prohibiting the consummation of the Transactions.
5.5. If this Agreement is terminated prior to Completion Group Financing Payables in accordance with Clause 5.4 above,6.4(a).
(i) this Agreement 6.5 The repayments made pursuant to Clause 6.4 shall become void and of no further force and effect; provided, however, that the provisions of this Clause 5.5 and Clauses 1 (Definitions and Interpretation), 11 (Announcements and Confidentiality), 12 (Notices), 13 (Governing Law, Disputes and Jurisdiction), 14.1 (Entire Agreement), 14.6 (Variation), 14.7 (No Assignment), 14.8 (Waiver), 14.9 (Severability), 14.10 (Supersession) and 14.11 (Expenses) shall survive the termination of this Agreement indefinitely and that nothing herein shall relieve any Party from any liability for fraud or any breach of the provisions of this Agreement prior to such termination; and
(ii) if applicable, the Observer shall no longer be entitled to attend the meetings of the Board (or any committee thereof) and the nominees of the Purchaser appointed on the Board adjusted in accordance with Clause 6.2 7.4 when the Closing Statement becomes final and binding in accordance with Clause 7.2(a).
6.6 The Parties agree that notwithstanding Clause 6.1, if any Local Transfer Document is required to be notarised, the relevant Parties shall resign execute such document on the Completion Date at a mutually convenient location where a notary with immediate effectthe required qualification will be present.
Appears in 2 contracts
Sources: Sale and Purchase Agreement (Scotts Miracle-Gro Co), Sale and Purchase Agreement (Scotts Miracle-Gro Co)
Completion. 5.1. Subject to the conditions set out in Clauses 3.1, 3.2 and 3.3, 4.1 Completion shall take place on the Completion Date.
5.2. The obligations immediately following signature and exchange of each of the Parties under Clause 5.3 below are interdependent of each other. The Completion shall not occur unless all of the obligations specified in Clause 5.3, have been simultaneously complied with and are fully effective.
5.3. On the Completion Date:
(i) Subject to deductions pursuant to Clause 4.4, the Purchaser shall remit the Purchase Consideration (in immediately available funds) to the Seller’s Bank Account.
(ii) The Seller shall (a) provide to its Depository Participant duly executed DP Instructions in the prescribed form for the transfer of the Sale Shares to the Demat Account of the Purchaser (details of which shall be provided to the Seller in writing as soon as practicable after the Execution Date); (b) procure its Depository Participant to duly acknowledge such DP Instructions; (c) deliver a copy of such acknowledgement to the Purchaser; and (d) use best endeavours to procure credit of the Sale Shares to the Demat Account of the Purchaser.
(iii) The Seller shall, to the extent it is able to do so through exercise of its voting rights, procure that a Board meeting is held at which the following business shall be transactedthis Agreement when:
(a) the appointment of directors nominated by the Purchaser on the Board Sellers shall deliver or cause to be approved; and
(b) an extra-ordinary general meeting of the shareholders of the Company to approve the matters set out in Clause 5.3(iii)(a) and the amendment of the Articles of Association shall be convened.
5.4. This Agreement may be terminated on or prior delivered to the Completion Date as follows:Purchaser
(i) By transfers of the mutual written consent Shares duly completed in favour of the Purchaser and and/or its nominees notified by the Seller.Purchaser;
(ii) By the Seller, upon written notice share certificates representing the Shares (or an express indemnity in a form satisfactory to the Purchaser, if Purchaser in the conditions set out in Clauses 3.1 and 3.3 have not been satisfied (or satisfied subject only case of any found to Completion where applicable) or waived (where applicable) on or before 270 (two hundred seventy) days from the Execution Date or such later date as may be mutually agreed between the Parties in writing (“Long Stop Date”); provided that the Seller shall not be entitled to terminate this Agreement pursuant to this Clause 5.4(ii) if Seller’s breach of this Agreement has prevented or materially delayed the consummation of the Transactions (which term for the purposes of this Clause 5.4(ii) shall not include the Financingmissing);
(iii) By all the PurchaserStatutory and Minute Books of the Company and its Common Seal and the Certificate of Incorporation;
(iv) the Tax Deed duly executed by each of the Warrantors;
(v) a letter of resignation (expressed to be with effect from the end of the meeting of the Board of the Company referred to in sub-clause (d) below), upon written notice from ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ resigning office as Director and Secretary of the Company, executed as a deed in the agreed terms;
(vi) the resignation of the auditors of the Company in accordance with section 394 of the Companies ▇▇▇ ▇▇▇▇, confirming that there are no circumstances connected with their resignation which should be brought to the Sellernotice of the members or creditors of the Company and that there are no fees due to them;
(vii) the Service Agreement, if duly executed by ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇;
(viii) the conditions set out in Clauses 3.2 and 3.3 Property Licence duly executed by the Sellers; and
(ix) the Disclosure Letter.
(b) the Warrantors shall procure that all indebtedness due from any of the Warrantors or any person connected with them to the Company shall have not been satisfied in full prior to Completion;
(or c) all indebtedness due from the Company to any of the Warrantors (full particulars of which are contained in the Disclosure Letter but excluding remuneration accrued but not yet due for payment) shall have been satisfied in full without payment of interest prior to Completion;
(d) the Sellers shall cause a meeting of the Board of the Company to be held at which the Board shall:-
(i) appoint such persons as the Purchaser may nominate as Directors and Secretary of the Company;
(ii) accept the letters of resignation referred to in sub-clause (a)(v) and (a)(vi) above;
(iii) vote in favour of the registration of the Purchaser and/or its nominees as members of the Company subject only to the production of duly stamped and completed transfers in favour of the Purchaser and/or its nominees in respect of the Shares;
(iv) approve the Property Licence;
(v) change the accounting reference date of the Company to 31 December;
(vi) appoint Ernst & Young as auditors;
(e) the parties shall join in procuring that all existing bank mandates in force for the Company shall be altered (in such manner as the Purchaser shall at Completion where applicablerequire) or waived so as (where applicableinter alia) on or before to reflect the Long Stop Date; provided that resignations and appointments referred to above.
(f) the Purchaser shall not be entitled obliged to terminate complete this Agreement pursuant to this Clause 5.4(iiiunless the Sellers comply fully with the requirements of paragraphs (a), (b), (d), and (e) if Purchaser’s breach of this Agreement has prevented or materially delayed Clause;
4.2 Upon completion of all the consummation matters referred to in sub-clause 4.1 the Purchaser shall:
(a) pay to the Sellers' Solicitors (whose receipt shall be a sufficient discharge therefor) the Cash Consideration by way of telegraphic transfer;
(b) allot the Initial Consideration Shares and issue the Loan Notes to the Sellers and within five days of Completion deliver to the Sellers' Solicitors definitive share certificates in respect of the Transactions.Initial Consideration Shares and certificates in the agreed terms in respect of the Loan Notes in the names of the Sellers; and
(c) deliver to the Sellers' Solicitors a duly executed counterpart of:
(i) the Tax Deed;
(ii) the Service Agreement;
(iii) the Property Licence;
(iv) By the Seller Disclosure Letter;
(if d) the Seller is Sellers shall not in material breach of the Seller Warranties, covenants or agreements under be obliged to complete this Agreement so as to cause any unless the Purchaser complies fully with the requirements of the conditions set forth in Clause 3.2 and/or 3.3(i) not to be satisfiedparagraphs (a), upon written notice to (b) and (c) of this Clause.
4.3 If in any respect either the Purchaser, if there has been a material inaccuracy of any statement Sellers or warranty, or any unremedied material breach of a covenant or other agreement, of the Purchaser contained in this Agreement, which violation, breach or inaccuracy would cause any fail to comply with all the provisions of Clauses 4.1 and 4.2 on the conditions set forth in Clause 3.1 and/or 3.3 not to be satisfied as date for Completion then the other of the Completion Date, and such violation, breach or inaccuracy has not been waived by the Seller or cured by the Purchaser within 20 (twenty) Business Days after receipt by the Purchaser of written notice thereof from the Seller or is not reasonably capable of being cured prior to the Long Stop Date.them may:
(va) By defer Completion to a date not more than 28 days after the Purchaser date for Completion set by this Clause 4 (if the Purchaser is not in material breach of the Purchaser Warranties, covenants or agreements under this Agreement and so as to cause any of the conditions set forth in Clause 3.1 and/or 3.3 not to be satisfied), upon written notice to the Seller, if there has been a material inaccuracy of any statement or warranty, or any unremedied material breach of a covenant or other agreement, of the Seller contained in this Agreement, which violation, breach or inaccuracy would cause any of the conditions set forth in Clauses 3.2 and/or 3.3(i) not to be satisfied as of the Completion Date, and such violation, breach or inaccuracy has not been waived by the Purchaser or cured by the Seller within 20 (twenty) Business Days after receipt by the Seller of written notice thereof from the Purchaser or is not reasonably capable of being cured prior to the Long Stop Date.
(vi) By the Seller or the Purchaser, upon written notice to the other, if a court of competent jurisdiction or any other Governmental Authority shall have issued a final, non-appealable order preventing or otherwise prohibiting the consummation of the Transactions.
5.5. If this Agreement is terminated prior to Completion in accordance with Clause 5.4 above,
(i) this Agreement shall become void and of no further force and effect; provided, however, that the provisions of this Clause 5.5 sub-clause 4.3 shall apply to Completion as so deferred); or
(b) proceed to Completion as far as practicable; or
(c) rescind this Agreement (without prejudice to its accrued rights and Clauses 1 remedies).
4.4 The Purchaser (Definitions and Interpretation), 11 (Announcements and Confidentiality), 12 (Notices), 13 (Governing Law, Disputes and Jurisdiction), 14.1 (Entire Agreement), 14.6 (Variation), 14.7 (No Assignment), 14.8 (Waiver), 14.9 (Severability), 14.10 (Supersession) and 14.11 (Expenseswith the reasonable cooperation of the Sellers) shall survive procure as soon as reasonably practicable following Completion and in any event within 28 days of Completion the termination of this Agreement indefinitely full and that nothing herein shall relieve any Party from any liability for fraud or any breach unconditional release of the provisions of this Agreement prior to such termination; and
(ii) if applicable, the Observer shall no longer be entitled to attend the meetings of the Board (or any committee thereof) Personal Guarantee and the nominees Purchaser shall fully indemnify the Sellers against any liability, loss, cost or claim arising out of or in connection with the Purchaser appointed on the Board in accordance with Clause 6.2 shall resign with immediate effectPersonal Guarantee at any time after Completion.
Appears in 2 contracts
Sources: Share Purchase Agreement (Marquee Group Inc), Share Purchase Agreement (Marquee Group Inc)
Completion. 5.1. Subject to the conditions set out in Clauses 3.1, 3.2 and 3.3, 10.1 Completion shall take place at the offices of ▇▇▇▇▇▇ N.V. in Amsterdam as soon as possible after the date on which the Completion Datelast Condition Precedent under clause 8.1 is satisfied or, where permitted, waived in writing by the relevant Party or Parties, save as the Seller and the Purchaser may agree otherwise in writing, which is expected to occur on or about five April 2012.
5.2. The obligations of each 10.2 Following the conclusion of the Parties under Clause 5.3 below are interdependent of each other. The Completion shall not occur unless all Economic Ownership Transfer Agreement and the execution of the obligations specified Deed of Assignment in Clause 5.3the Interim Period in accordance with clause 6.2, have been simultaneously complied the Business shall be transferred by the Seller to the Purchaser by means of the execution by one of the notaries of ▇▇▇▇▇▇ N.V. of a notarial deed of contribution in kind (akte van inbreng) (the “Deed of Contribution”) to be mutually agreed by the Seller and the Purchaser acting in good faith, pursuant to which the (class B) ordinary shares in the capital of the Purchaser underlying the uniQure DRs shall be issued to the Trust Foundation, with the Trust Foundation immediately subsequent issuing the uniQure DRs to the Seller. By means of the execution of the Deed of Contribution — as a consequence of which the Business shall be transferred — the Seller shall transfer to the Purchaser and are fully effective.
5.3. On the Purchaser shall accept from the Seller on the Completion Date:
(iA) Subject the Loan Notes and the Convertible Loan Note Agreement at a value equal to deductions pursuant the nominal value and accrued interest and transfer of contract — the Parties agree and acknowledge that any and all rights under the Loan Notes and the Convertible Loan Note Agreement to Clause 4.4convert any amount due under any Loan Note into shares in the Seller are terminated and extinguished as of the moment and by means of the execution of the Deed of Contribution;
(B) the Administration (also by giving the Purchaser possession (bezitsverschaffing) thereto and, if necessary, notification to third parties holding (parts of) the Administration for the Group);
(C) the Seller Loans at a value equal to the nominal value and accrued interest, in the event the Seller has not transferred the legal title to and economic ownership of these Seller Loans to the Subsidiaries between the Signing Date and the Completion Date, due to the existence of materially adverse consequences for the Seller or the Subsidiaries; and
(D) the Sale Shares.
10.3 To transfer the Business, on the Completion Date the Purchaser shall remit assume from the Purchase Consideration (in immediately available funds) Seller and the Seller shall transfer to the Seller’s Bank AccountPurchaser the Guarantees, whilst the Seller shall forthwith upon request of the Purchaser request the creditors of the Guarantees in writing for their consent to the transfer of the Guarantees to the Purchaser.
(ii) The 10.4 To the extent any Employees are employed by Seller shall (a) provide and not by the Subsidiaries and have not been transferred to its Depository Participant duly executed DP Instructions in the prescribed form for Purchaser on the Completion Date as a result of the transfer of the Sale Shares to the Demat Account of the Purchaser such Employees (details of which shall be provided to the Seller in writing as soon as practicable after the Execution Date); (b) procure its Depository Participant to duly acknowledge such DP Instructions; (c) deliver a copy of such acknowledgement to the Purchaser; and (d) use best endeavours to procure credit of the Sale Shares to the Demat Account of the Purchaser.
(iii) The Seller shall, to the extent it is able to do so through exercise of its voting rights, procure that a Board meeting is held at which the following business shall be transacted:
(a) the appointment of directors nominated by the Purchaser on the Board shall be approved; and
(b) an extra-ordinary general meeting of the shareholders of the Company to approve the matters set out in Clause 5.3(iii)(a) and the amendment of rights and obligations under the Articles of Association shall be convened.
5.4. This Agreement may be terminated on or prior to the Completion Date as follows:
(i) By the mutual written consent of the Purchaser and the Seller.
(ii) By the Seller, upon written notice to the Purchaser, if the conditions set out employment agreements with such Employees in Clauses 3.1 and 3.3 have not been satisfied (or satisfied subject only to Completion where applicable) or waived (where applicable) on or before 270 (two hundred seventy) days from the Execution Date or such later date as may be mutually agreed between the Parties in writing (“Long Stop Date”); provided that the Seller shall not be entitled to terminate this Agreement pursuant to this Clause 5.4(ii) if Seller’s breach of this Agreement has prevented or materially delayed the consummation of the Transactions (which term for the purposes of this Clause 5.4(ii) shall not include the Financing);
(iii) By the Purchaser, upon written notice to the Seller, if the conditions set out in Clauses 3.2 and 3.3 have not been satisfied (or satisfied subject only to Completion where applicable) or waived (where applicable) on or before the Long Stop Date; provided that the Purchaser shall not be entitled to terminate this Agreement pursuant to this Clause 5.4(iii) if Purchaser’s breach of this Agreement has prevented or materially delayed the consummation of the Transactions.
(iv) By the Seller (if the Seller is not in material breach of the Seller Warranties, covenants or agreements under this Agreement so as to cause any of the conditions set forth in Clause 3.2 and/or 3.3(i) not to be satisfied), upon written notice to the Purchaser, if there has been a material inaccuracy of any statement or warranty, or any unremedied material breach of a covenant or other agreement, of the Purchaser contained in this Agreement, which violation, breach or inaccuracy would cause any of the conditions set forth in Clause 3.1 and/or 3.3 not to be satisfied as of force at the Completion Date, and such violation, breach or inaccuracy has not been waived by the Seller or cured by ) will be transferred to the Purchaser within 20 by operation of law as a result of transfer of undertaking (twentyovergang van onderneming) Business Days after receipt by the Purchaser of written notice thereof from the Seller or is not reasonably capable of being cured prior to the Long Stop Date.
(v) By the Purchaser (if the Purchaser is not in material breach of the Purchaser Warranties, covenants or agreements under this Agreement so as to cause any of the conditions set forth in Clause 3.1 and/or 3.3 not to be satisfied), upon written notice to the Seller, if there has been a material inaccuracy of any statement or warranty, or any unremedied material breach of a covenant or other agreement, of the Seller contained in this Agreement, which violation, breach or inaccuracy would cause any of the conditions set forth in Clauses 3.2 and/or 3.3(i) not to be satisfied as of the Completion Date, and such violation, breach or inaccuracy has not been waived by the Purchaser or cured by the Seller within 20 (twenty) Business Days after receipt by the Seller of written notice thereof from the Purchaser or is not reasonably capable of being cured prior to the Long Stop Date.
(vi) By the Seller or the Purchaser, upon written notice to the other, if a court of competent jurisdiction or any other Governmental Authority shall have issued a final, non-appealable order preventing or otherwise prohibiting the consummation of the Transactions.
5.5. If this Agreement is terminated prior to Completion in accordance with Clause 5.4 above,section 7:663 et sec. DCC.
(i) this Agreement 10.5 The Purchaser shall become void and of no further force and effect; provided, however, that procure the provisions of this Clause 5.5 and Clauses 1 (Definitions and Interpretation), 11 (Announcements and Confidentiality), 12 (Notices), 13 (Governing Law, Disputes and Jurisdiction), 14.1 (Entire Agreement), 14.6 (Variation), 14.7 (No Assignment), 14.8 (Waiver), 14.9 (Severability), 14.10 (Supersession) and 14.11 (Expenses) shall survive due compliance with section 2:204b DCC in relation to the termination of this Agreement indefinitely and that nothing herein shall relieve any Party from any liability for fraud or any breach contribution in kind by means of the provisions Deed of this Agreement prior to such termination; and
(ii) if applicableContribution, including the Observer shall no longer be entitled to attend the meetings preparation of the Board (or any committee thereof) description of the contribution and the nominees preparation of the Purchaser appointed on the Board in accordance with Clause 6.2 shall resign with immediate effectauditor’s statement.
Appears in 2 contracts
Sources: Business Acquisition Agreement (uniQure B.V.), Business Acquisition Agreement (uniQure B.V.)
Completion. 5.1. Subject to 7.1 Completion shall take place at the conditions offices of the Buyer’s Solicitors on the Completion Date when the Sellers and the Buyer shall each perform their respective obligations in accordance with and as set out in Clauses 3.1Part A and Part B, 3.2 respectively, of Schedule 2 (Completion Requirements).
7.2 The Buyer will not be obliged to complete this Agreement until each of the Sellers complies in full with its respective obligations under Part A of Schedule 2 (Completion Requirements).
7.3 The Buyer will not be obliged to complete the sale and 3.3purchase of any of the Shares unless the sale and purchase of all of the Shares is completed simultaneously, but completion of the purchase of some only of the Shares will not affect the rights of the Buyer with respect to the purchase of the remainder.
7.4 If Completion shall does not take place on the Completion Date.
5.2. The obligations of each Date because any of the Parties under Clause 5.3 below are interdependent of each other. The Completion shall not occur unless all of the obligations specified in Clause 5.3, have been simultaneously complied Sellers fails to comply with and are fully effective.
5.3. On the Completion Date:
(i) Subject to deductions pursuant to Clause 4.4, the Purchaser shall remit the Purchase Consideration (in immediately available funds) to the Seller’s Bank Account.
(ii) The Seller shall (a) provide to its Depository Participant duly executed DP Instructions in the prescribed form for the transfer of the Sale Shares to the Demat Account of the Purchaser (details of which shall be provided to the Seller in writing as soon as practicable after the Execution Date); (b) procure its Depository Participant to duly acknowledge such DP Instructions; (c) deliver a copy of such acknowledgement to the Purchaser; and (d) use best endeavours to procure credit of the Sale Shares to the Demat Account of the Purchaser.
(iii) The Seller shall, to the extent it is able to do so through exercise any of its voting rightsrespective material obligations under this Clause 7 and Schedule 2 (Completion Requirements), procure that a Board meeting is held at which then the following business shall be transacted:
(a) the appointment of directors nominated Buyer may by the Purchaser on the Board shall be approved; and
(b) an extra-ordinary general meeting of the shareholders of the Company to approve the matters set out in Clause 5.3(iii)(a) and the amendment of the Articles of Association shall be convened.
5.4. This Agreement may be terminated on or prior to the Completion Date as follows:
(i) By the mutual written consent of the Purchaser and the Seller.
(ii) By the Seller, upon written notice to the Purchaser, if Sellers’ Representative and the conditions set out in Clauses 3.1 and 3.3 have not been satisfied (or satisfied subject only Fund Sellers elect to:
7.4.1 proceed to Completion where applicable) to the extent reasonably practicable (including, at the option of the Buyer, completion of the purchase of some only of the Shares), which will not affect the rights of the Buyer with respect to the purchase of the remainder; or
7.4.2 defer Completion in relation to some or waived (where applicable) on or before 270 (two hundred seventy) days from all of the Execution Date or Shares to such later date as the Buyer and the Sellers’ Representative may be mutually agreed between the Parties in writing agree (“Long Stop Date”); provided that the Seller shall not be entitled to terminate this Agreement pursuant to this Clause 5.4(ii) if Seller’s breach of this Agreement has prevented or materially delayed the consummation of the Transactions (which term for the purposes of this Clause 5.4(ii) shall not include the Financing);
(iii) By the Purchaser, upon written notice to the Seller, if the conditions set out in Clauses 3.2 and 3.3 have not been satisfied (or satisfied subject only to Completion where applicable) or waived (where applicable) on or before the Long Stop Date; provided that the Purchaser shall not be entitled to terminate this Agreement pursuant to this Clause 5.4(iii) if Purchaser’s breach of this Agreement has prevented or materially delayed the consummation of the Transactions.
(iv) By the Seller (if the Seller is not in material breach of the Seller Warranties, covenants or agreements under this Agreement so as to cause any of the conditions set forth in Clause 3.2 and/or 3.3(i) not to be satisfied), upon written notice to the Purchaser, if there has been a material inaccuracy of any statement or warranty, or any unremedied material breach of a covenant or other agreement, of the Purchaser contained in this Agreement, which violation, breach or inaccuracy would cause any of the conditions set forth in Clause 3.1 and/or 3.3 not to be satisfied as of the Completion Date, and such violation, breach or inaccuracy has not been waived by the Seller or cured by the Purchaser within 20 (twenty) Business Days after receipt by the Purchaser of written notice thereof from the Seller or is not reasonably capable of being cured prior to the Long Stop Date.
(v) By the Purchaser (if the Purchaser is not in material breach of the Purchaser Warranties, covenants or agreements under this Agreement so as to cause any of the conditions set forth in Clause 3.1 and/or 3.3 not to be satisfied), upon written notice to the Seller, if there has been a material inaccuracy of any statement or warranty, or any unremedied material breach of a covenant or other agreement, of the Seller contained in this Agreement, which violation, breach or inaccuracy would cause any of the conditions set forth in Clauses 3.2 and/or 3.3(i) not to be satisfied as of the Completion Date, and such violation, breach or inaccuracy has not been waived by the Purchaser or cured by the Seller within 20 (twenty) Business Days after receipt by the Seller of written notice thereof from the Purchaser or is not reasonably capable of being cured prior to the Long Stop Date.
(vi) By the Seller or the Purchaser, upon written notice to the other, if a court of competent jurisdiction or any other Governmental Authority shall have issued a final, non-appealable order preventing or otherwise prohibiting the consummation of the Transactions.
5.5. If this Agreement is terminated prior to Completion in accordance with Clause 5.4 above,
(i) this Agreement shall become void and of no further force and effect; provided, however, that the provisions of Clause 6, apart from this Clause 5.5 and 7.4.2, shall apply to Completion deferred pursuant to this Clause); or
7.4.3 terminate this Agreement (whether or not such failure by the Sellers amounts to a repudiatory breach), without prejudice to any other remedies or accrued rights that any party may have against any other party, following which the provisions of this Agreement shall cease to have effect, other than Clauses 1 (Definitions and InterpretationInterpretations), this Clause 7, 11 (Announcements and Confidentiality), 12 (NoticesAnnouncements), 13 15 (Governing Law, Disputes Costs and JurisdictionExpenses), 14.1 18 (Entire AgreementGeneral), 14.6 19 (Variation), 14.7 (No Assignment), 14.8 (Waiver), 14.9 (Severability), 14.10 (SupersessionNotices) and 14.11 20 (Expenses) shall survive the termination of this Agreement indefinitely Applicable Law and that nothing herein shall relieve any Party from any liability for fraud or any breach of the provisions of this Agreement prior to such termination; and
(ii) if applicable, the Observer shall no longer be entitled to attend the meetings of the Board (or any committee thereof) and the nominees of the Purchaser appointed on the Board in accordance with Clause 6.2 shall resign with immediate effectJurisdictions).
Appears in 2 contracts
Sources: Second Deed of Amendment to the Share Purchase Agreement (Metsera, Inc.), Second Deed of Amendment to the Share Purchase Agreement (Metsera, Inc.)
Completion. 5.1. Subject to the conditions set out in Clauses 3.1, 3.2 and 3.34.1 Unless otherwise agreed, Completion shall take place at the offices of the Company’s principal place of business on or before 5:00 p.m. on the Completion Date.
5.2. The obligations 4.2 On Completion:
(a) the Vendors shall deliver to the Purchaser:
(i) duly executed transfers of the Sale Shares in favour of the Purchaser together with the share certificates therefor or an indemnity in a form reasonably required by the Purchaser in the case of any missing share certificates; and
(ii) all the constitutive documents of the Company, including (without limitation) the certificates of incorporation, certificates of incorporation on change of name (if any), memorandum and articles of association, the common seals and company chops, minute books, registers of members and registers of directors (both duly written up to date), share certificate books and all other statutory records and documents of the Company;
(b) the Vendors shall procure that a written resolution of all directors of the Company be passed at which the following shall be approved:
(i) the transfers of the Sale Shares;
(ii) the entry of the name of the Purchaser into the register of members of the Company; and
(iii) all such other business as the Purchaser shall reasonably require to vest in the Purchaser the beneficial ownership of the Sale Shares; and
(c) the parties hereto shall procure that each of the Parties under Clause 5.3 below are interdependent of Transaction Documents be executed and delivered by the parties thereto.
4.3 The Vendors and the Company hereby agree that each other. The Completion shall not occur unless all of the obligations specified Prior Agreements shall be deemed terminated and cease to have any effect as of the Completion and shall take any such actions and execute any such documents as are necessary to terminate the Prior Agreements.
4.4 Subject to the conclusion of the matters referred to in Clause 5.34.2 above, have been simultaneously complied with and are fully effective.
5.3. On the Purchaser shall within three Business Days from the Completion Date:
(i) Subject issue and allot the Consideration Shares, credited as fully paid to deductions pursuant to Clause 4.4, the Purchaser shall remit the Purchase Consideration (in immediately available funds) to the Seller’s Bank Account.
(ii) The Seller shall (a) provide to its Depository Participant duly executed DP Instructions in the prescribed form for the transfer each of the Sale Shares to the Demat Account of the Purchaser (details of which shall be provided to the Seller Vendors or as he/it may direct in writing as soon as practicable after the Execution Date); (b) procure its Depository Participant to duly acknowledge such DP Instructions; (c) deliver a copy of such acknowledgement to the Purchaser; and (d) use best endeavours to procure credit of the Sale Shares to the Demat Account of the Purchaser.
(iii) The Seller shall, to the extent it is able to do so through exercise of its voting rights, procure that a Board meeting is held at which the following business shall be transacted:
(a) the appointment of directors nominated by the Purchaser on the Board shall be approved; and
(b) an extra-ordinary general meeting of the shareholders of the Company to approve the matters set out in Clause 5.3(iii)(a) and the amendment of the Articles of Association shall be convened.
5.4. This Agreement may be terminated on or prior to the Completion Date as follows:
(i) By the mutual written consent of the Purchaser and the Seller.
(ii) By the Seller, upon written notice to the Purchaser, if the conditions set out in Clauses 3.1 and 3.3 have not been satisfied (or satisfied subject only to Completion where applicable) or waived (where applicable) on or before 270 (two hundred seventy) days from the Execution Date or such later date as may be mutually agreed between the Parties in writing (“Long Stop Date”); provided that the Seller shall not be entitled to terminate this Agreement pursuant to this Clause 5.4(ii) if Seller’s breach of this Agreement has prevented or materially delayed the consummation of the Transactions (which term for the purposes of this Clause 5.4(ii) shall not include the Financing);
(iii) By the Purchaser, upon written notice to the Seller, if the conditions set out in Clauses 3.2 and 3.3 have not been satisfied (or satisfied subject only to Completion where applicable) or waived (where applicable) on or before the Long Stop Date; provided that the Purchaser shall not be entitled to terminate this Agreement pursuant to this Clause 5.4(iii) if Purchaser’s breach of this Agreement has prevented or materially delayed the consummation of the Transactions.
(iv) By the Seller (if the Seller is not in material breach of the Seller Warranties, covenants or agreements under this Agreement so as to cause any of the conditions set forth in Clause 3.2 and/or 3.3(i) not to be satisfied), upon written notice to the Purchaser, if there has been a material inaccuracy of any statement or warranty, or any unremedied material breach of a covenant or other agreement, of the Purchaser contained in this Agreement, which violation, breach or inaccuracy would cause any of the conditions set forth in Clause 3.1 and/or 3.3 not to be satisfied as of the Completion Date, and such violation, breach or inaccuracy has not been waived by the Seller or cured by the Purchaser within 20 (twenty) Business Days after receipt by the Purchaser of written notice thereof from the Seller or is not reasonably capable of being cured prior to the Long Stop Date.
(v) By the Purchaser (if the Purchaser is not in material breach of the Purchaser Warranties, covenants or agreements under this Agreement so as to cause any of the conditions set forth in Clause 3.1 and/or 3.3 not to be satisfied), upon written notice to the Seller, if there has been a material inaccuracy of any statement or warranty, or any unremedied material breach of a covenant or other agreement, of the Seller contained in this Agreement, which violation, breach or inaccuracy would cause any of the conditions set forth in Clauses 3.2 and/or 3.3(i) not to be satisfied as of the Completion Date, and such violation, breach or inaccuracy has not been waived by the Purchaser or cured by the Seller within 20 (twenty) Business Days after receipt by the Seller of written notice thereof from the Purchaser or is not reasonably capable of being cured prior to the Long Stop Date.
(vi) By the Seller or the Purchaser, upon written notice to the other, if a court of competent jurisdiction or any other Governmental Authority shall have issued a final, non-appealable order preventing or otherwise prohibiting the consummation of the Transactions.
5.5. If this Agreement is terminated prior to Completion in accordance with Clause 5.4 3 above,
(i) this Agreement shall become void and of no further force and effect; provided, however, that the provisions of this Clause 5.5 and Clauses 1 (Definitions and Interpretation), 11 (Announcements and Confidentiality), 12 (Notices), 13 (Governing Law, Disputes and Jurisdiction), 14.1 (Entire Agreement), 14.6 (Variation), 14.7 (No Assignment), 14.8 (Waiver), 14.9 (Severability), 14.10 (Supersession) and 14.11 (Expenses) shall survive the termination of this Agreement indefinitely and that nothing herein shall relieve any Party from any liability for fraud or any breach of the provisions of this Agreement prior to such termination; and
(ii) if applicable, deliver to the Observer shall no longer be entitled to attend the meetings Vendors a copy of the Board (or any committee thereof) and the nominees register of members of the Purchaser appointed on evidencing the Board in accordance with Clause 6.2 shall resign with immediate effectissue and allotment of the relevant number of the Consideration Shares to the Vendors or their named allottees respectively.
Appears in 2 contracts
Sources: Share Exchange Agreement (Nobao Renewable Energy Holdings LTD), Share Exchange Agreement (Nobao Renewable Energy Holdings LTD)
Completion. 5.1. Subject to the conditions set out in Clauses 3.1, 3.2 and 3.3, 5.1 Completion shall take place at the offices of Studio Legale Bird & Bird, in Milan, at 10 a.m., on the 5th (fifth) Business Day following the date on which all the Conditions Precedent set forth in Clause 4.1 shall have been fulfilled (the “Completion Date”), or at such other place, date and time as the parties may hereafter agree in writing.
5.2 At Completion the Seller and the Purchaser shall comply with their respective obligations set out in Schedule 11.
5.3 If the obligations of the Seller or the Purchaser under Schedule 11 are not complied with on the Completion Date.
5.2. The obligations of each of the Parties under Clause 5.3 below are interdependent of each other. The Completion shall not occur unless all of the obligations specified Date in Clause 5.3, have been simultaneously complied with and are fully effective.
5.3. On the Completion Date:
(i) Subject to deductions pursuant to Clause 4.4any material respect, the Purchaser shall remit the Purchase Consideration (in immediately available fundsthe case of default by the Seller) or the Seller (in the case of a default by the Purchaser) shall be entitled (in addition to and without prejudice to all other rights and remedies available) by written notice to the Purchaser or the Seller’s Bank Account.
(ii) The Seller shall (a) provide to its Depository Participant duly executed DP Instructions in , as the prescribed form for the transfer of the Sale Shares to the Demat Account of the Purchaser (details of which shall be provided to the Seller in writing as soon as practicable after the Execution Date); (b) procure its Depository Participant to duly acknowledge such DP Instructions; (c) deliver a copy of such acknowledgement to the Purchaser; and (d) use best endeavours to procure credit of the Sale Shares to the Demat Account of the Purchaser.
(iii) The Seller shall, to the extent it is able to do so through exercise of its voting rights, procure that a Board meeting is held at which the following business shall be transactedcase may be:
(a) the appointment to defer Completion for a period of directors nominated by the Purchaser on the Board shall be approved; and
up to ten (b) an extra-ordinary general meeting of the shareholders of the Company to approve the matters set out in Clause 5.3(iii)(a) and the amendment of the Articles of Association shall be convened.
5.4. This Agreement may be terminated on or prior to the Completion Date as follows:
(i) By the mutual written consent of the Purchaser and the Seller.
(ii) By the Seller, upon written notice to the Purchaser, if the conditions set out in Clauses 3.1 and 3.3 have not been satisfied (or satisfied subject only to Completion where applicable) or waived (where applicable) on or before 270 (two hundred seventy) days from the Execution Date or such later date as may be mutually agreed between the Parties in writing (“Long Stop Date”); provided that the Seller shall not be entitled to terminate this Agreement pursuant to this Clause 5.4(ii) if Seller’s breach of this Agreement has prevented or materially delayed the consummation of the Transactions (which term for the purposes of this Clause 5.4(ii) shall not include the Financing);
(iii) By the Purchaser, upon written notice to the Seller, if the conditions set out in Clauses 3.2 and 3.3 have not been satisfied (or satisfied subject only to Completion where applicable) or waived (where applicable) on or before the Long Stop Date; provided that the Purchaser shall not be entitled to terminate this Agreement pursuant to this Clause 5.4(iii) if Purchaser’s breach of this Agreement has prevented or materially delayed the consummation of the Transactions.
(iv) By the Seller (if the Seller is not in material breach of the Seller Warranties, covenants or agreements under this Agreement so as to cause any of the conditions set forth in Clause 3.2 and/or 3.3(i) not to be satisfied), upon written notice to the Purchaser, if there has been a material inaccuracy of any statement or warranty, or any unremedied material breach of a covenant or other agreement, of the Purchaser contained in this Agreement, which violation, breach or inaccuracy would cause any of the conditions set forth in Clause 3.1 and/or 3.3 not to be satisfied as of the Completion Date, and such violation, breach or inaccuracy has not been waived by the Seller or cured by the Purchaser within 20 (twenty10) Business Days after receipt by the Purchaser of written notice thereof from the Seller or (provided always that such date is not reasonably capable of being cured prior to the Long Stop Date.
(v) By the Purchaser (if the Purchaser is not in material breach of the Purchaser Warranties, covenants or agreements under this Agreement so as to cause any of the conditions set forth in Clause 3.1 and/or 3.3 not to be satisfied), upon written notice to the Seller, if there has been a material inaccuracy of any statement or warranty, or any unremedied material breach of a covenant or other agreement, of the Seller contained in this Agreement, which violation, breach or inaccuracy would cause any of the conditions set forth in Clauses 3.2 and/or 3.3(i) not to be satisfied as of the Completion Date, and such violation, breach or inaccuracy has not been waived by the Purchaser or cured by the Seller within 20 (twenty) Business Days after receipt by the Seller of written notice thereof from the Purchaser or is not reasonably capable of being cured prior to the Long Stop Date.
(vi) By the Seller or the Purchaser, upon written notice to the other, if a court of competent jurisdiction or any other Governmental Authority shall have issued a final, non-appealable order preventing or otherwise prohibiting the consummation of the Transactions.
5.5. If this Agreement is terminated prior to Completion in accordance with Clause 5.4 above,
(i) this Agreement shall become void and of no further force and effect; provided, however, that the provisions of this Clause 5.5 and Clauses 1 5 shall apply to Completion as so deferred;
(Definitions and Interpretation)b) to require the parties to proceed to Completion as far as practicable, 11 having regard to the defaults which have occurred; and
(Announcements and Confidentiality), 12 c) subject to Completion having first been deferred for a period of at least ten (Notices), 13 (Governing Law, Disputes and Jurisdiction), 14.1 (Entire Agreement), 14.6 (Variation), 14.7 (No Assignment), 14.8 (Waiver), 14.9 (Severability), 14.10 (Supersession10) Business Days under Clause 5.3(a) and 14.11 (Expenses) shall survive the termination parties having used reasonable endeavours to effect Completion during that period, to terminate this Agreement by notice in writing to the Purchaser or the Seller, as the case may be.
5.4 All amounts expressed to be payable to the Seller pursuant to any provision of this Agreement indefinitely shall be paid (without set-off or deduction) to the Designated Account, and that nothing herein the receipt of each such amount in the Designated Account shall relieve be an absolute discharge to the Purchaser of the obligation to pay such amount and the Purchaser shall not be concerned to see to the application of any Party from any liability for fraud such amount thereafter.
5.5 All actions and transactions constituting the Completion pursuant to this Agreement (including, without limitation, this Clause 5 and Schedule 11), as well as all actions and transactions constituting the Completion under the Oss SPA, shall be regarded as one single transaction so that, at the option of the party having interest in the performance of the relevant specific action or any breach of transaction, no action or transaction constituting the Completion shall be deemed to have taken place if and until all other actions and transactions constituting the Completion shall have been properly performed in accordance with the provisions of this Agreement prior to such termination; and
(ii) if applicable, the Observer shall no longer be entitled to attend the meetings and of the Board (or any committee thereof) and the nominees of the Purchaser appointed on the Board in accordance with Clause 6.2 shall resign with immediate effectOss SPA.
Appears in 2 contracts
Sources: Sale and Purchase Agreement, Sale and Purchase Agreement (Shiloh Industries Inc)
Completion. 5.1. Subject to Completion shall take place at the offices of the Investors’ Solicitors immediately upon the conditions set out in Clauses 3.1, 3.2 Clause 2.1(a) being satisfied or waived by the Investors (or such other place and 3.3, Completion time as the Company and the Investors may agree) when all of the following matters shall take place on (to the Completion Date.extent they have not taken place prior to Completion);
5.2. The obligations (a) the subscription by each of Atlas VI, Atlas VI KG and Atlas EF VI for an aggregate of 12,185 ‘A’ Shares at a price of EUR574.4768 per share (giving an aggregate subscription price of EUR6,999,999.81) (the number of shares to be subscribed by each of the Parties under Clause 5.3 below are interdependent Atlas entities being set out opposite its name in Part 3 of each other. The Completion Schedule 1), which subscription price shall not occur unless all be delivered to the Company in the form either of (i) a bank draft drawn in favour of the obligations specified in Clause 5.3Company or (ii) a telegraphic transfer to the Company’s bank account with Ulster Bank, have been simultaneously complied with and are fully effective.Sort Code: 98-50-10, Account Number ▇▇▇▇▇▇▇▇;
5.3. On (b) the Completion Dateexisting Directors shall hold a board meeting of the Company at which:
(i) Subject to deductions pursuant to the ‘A’ Shares subscribed by Atlas in accordance with Clause 4.4, the Purchaser 2.2(a) shall remit the Purchase Consideration (in immediately available funds) to the Seller’s Bank Account.be issued and allotted;
(ii) The Seller shall (a) provide to its Depository Participant duly executed DP Instructions in the prescribed form for the transfer of the Sale Shares to the Demat Account of the Purchaser (details of which ▇▇▇▇▇▇ De Rycker shall be provided to appointed as the Seller in writing as soon as practicable after the Execution Date); (b) procure its Depository Participant to duly acknowledge such DP Instructions; (c) deliver a copy of such acknowledgement to the Purchaser; and (d) use best endeavours to procure credit of the Sale Shares to the Demat Account of the Purchaser.
(iii) The Seller shall, to the extent it is able to do so through exercise of its voting rights, procure that a Board meeting is held at which the following business shall be transacted:
(a) the appointment of directors nominated by the Purchaser on the Board shall be approved; and
(b) an extra-ordinary general meeting of the shareholders of the Company to approve the matters set out in Clause 5.3(iii)(a) and the amendment of the Articles of Association shall be convened.
5.4. This Agreement may be terminated on or prior to the Completion Date as follows:
(i) By the mutual written consent of the Purchaser and the Seller.
(ii) By the Seller, upon written notice to the Purchaser, if the conditions set out in Clauses 3.1 and 3.3 have not been satisfied (or satisfied subject only to Completion where applicable) or waived (where applicable) on or before 270 (two hundred seventy) days from the Execution Date or such later date as may be mutually agreed between the Parties in writing (“Long Stop Date”); provided that the Seller shall not be entitled to terminate this Agreement pursuant to this Clause 5.4(ii) if Seller’s breach of this Agreement has prevented or materially delayed the consummation of the Transactions (which term for the purposes of this Clause 5.4(ii) shall not include the Financing)Atlas Director;
(iii) By ▇▇▇▇▇▇ ▇▇▇▇▇ as the Purchaser, upon written notice to the Seller, if the conditions set out in Clauses 3.2 and 3.3 have not been satisfied (or satisfied subject only to Completion where applicable) or waived (where applicable) on or before the Long Stop Date; provided that the Purchaser shall not be entitled to terminate this Agreement pursuant to this Clause 5.4(iii) if Purchaser’s breach of this Agreement has prevented or materially delayed the consummation secretary of the Transactions.Company shall be instructed to write up the register of members of the Company to reflect the issue and subscription and payment referred to in Clause 2.2(a) and share certificates in respect of the ‘A’ Shares referred to in Clause 2.2(a) shall be issued in favour of and delivered to Atlas;
(iv) By the Seller (if the Seller is not in material breach following documents shall be approved and their execution on behalf of the Seller Warranties, covenants or agreements under this Agreement so as to cause any of Company be authorised:
(A) the conditions set forth in Clause 3.2 and/or 3.3(iAnti-Dilution Warrants; and
(B) not to be satisfied), upon written notice to the Purchaser, if there has been a material inaccuracy of any statement or warranty, or any unremedied material breach of a covenant or other agreement, of the Purchaser contained in this Agreement, which violation, breach or inaccuracy would cause any of the conditions set forth in Clause 3.1 and/or 3.3 not to be satisfied as of the Completion Date, and such violation, breach or inaccuracy has not been waived by the Seller or cured by the Purchaser within 20 (twenty) Business Days after receipt by the Purchaser of written notice thereof from the Seller or is not reasonably capable of being cured prior to the Long Stop Date.Management Rights Letters;
(v) By any other matters shall be dealt with in order that the Purchaser (if the Purchaser is not in material breach details of the Purchaser Warranties, covenants or agreements under this Agreement so Company shall be as to cause any of set out in Schedule 2 Part 2;
(c) the conditions set forth in Clause 3.1 and/or 3.3 not to be satisfied), upon written notice Company shall sign and deliver the Anti-Dilution Warrants to the Seller, if there has been a material inaccuracy of any statement or warranty, or any unremedied material breach of a covenant or other agreement, of Investors and the Seller contained in this Agreement, which violation, breach or inaccuracy would cause any of the conditions set forth in Clauses 3.2 and/or 3.3(i) not Management Rights Letter to be satisfied as of the Completion Date, and such violation, breach or inaccuracy has not been waived by the Purchaser or cured by the Seller within 20 (twenty) Business Days after receipt by the Seller of written notice thereof from the Purchaser or is not reasonably capable of being cured prior to the Long Stop Date.
(vi) By the Seller or the Purchaser, upon written notice to the other, if a court of competent jurisdiction or any other Governmental Authority shall have issued a final, non-appealable order preventing or otherwise prohibiting the consummation of the Transactions.
5.5. If this Agreement is terminated prior to Completion in accordance with Clause 5.4 above,
(i) this Agreement shall become void and of no further force and effect; provided, however, that the provisions of this Clause 5.5 and Clauses 1 (Definitions and Interpretation), 11 (Announcements and Confidentiality), 12 (Notices), 13 (Governing Law, Disputes and Jurisdiction), 14.1 (Entire Agreement), 14.6 (Variation), 14.7 (No Assignment), 14.8 (Waiver), 14.9 (Severability), 14.10 (Supersession) and 14.11 (Expenses) shall survive the termination of this Agreement indefinitely and that nothing herein shall relieve any Party from any liability for fraud or any breach of the provisions of this Agreement prior to such terminationAtlas; and
(iid) if applicable, the Observer Company shall no longer be entitled to attend redeem the meetings Convertible Loan Notes by remitting the sum of US$609,750 plus any interest payable under the terms of the Board Convertible Loan Notes to Benchmark (or any committee thereof) and the nominees of the Purchaser appointed on the Board in accordance with Clause 6.2 as Benchmark shall resign with immediate effectdirect).
Appears in 2 contracts
Sources: Subscription and Shareholders’ Agreement (Globoforce LTD), Subscription and Shareholders’ Agreement (Globoforce LTD)
Completion. 5.1. Subject to the conditions set out in Clauses 3.1, 3.2 and 3.3, 4.1 Completion shall take place at the offices of the Purchaser’s Lawyers at 11.00 a.m. on the 2nd Business Day after the date on which all the Conditions are satisfied or, where permitted, waived or at such other time and on such other date as the Sellers and the Purchaser may agree.
4.2 On the Completion Date, the Purchaser will pay the Cash Purchase Price together with any late payment interest accrued thereon in accordance with Schedule 2 “Interest” by wire transfer into the Notary’s account in accordance with Clause 14 “Payments”.
4.3 On the Completion Date, after confirmation by the Notary that the Cash Purchase Price has been received in the Notary’s account, the Purchaser, each of the Sellers and the Notary shall execute a Deed of Transfer and the Purchaser shall acknowledge the transfer of the Shares by signing the Deed of Transfer. Immediately thereafter, on the Completion Date.
5.2. The obligations of , the Notary will pay to each of the Parties under Clause 5.3 below are interdependent Sellers, by wire transfer of each other. The Completion shall not occur unless all of the obligations specified in Clause 5.3, have been simultaneously complied with and are fully effective.
5.3. On the Completion Date:
(i) Subject to deductions pursuant to Clause 4.4, the Purchaser shall remit the Purchase Consideration (in immediately available funds) to , the Seller’s Bank Account.
(ii) The Seller shall (a) provide to its Depository Participant duly executed DP Instructions in the prescribed form for the transfer amount of the Sale Shares Cash Purchase Price set forth opposite such Sellers’ name on Schedule 1 “The Shareholdings”, plus any interest accrued thereon, in accordance with this Agreement, and the instruction letter to the Demat Account of the Purchaser (details of which shall be provided to the Seller in writing as soon as practicable after the Execution Date); (b) procure its Depository Participant to duly acknowledge such DP Instructions; (c) deliver a copy of such acknowledgement to the Purchaser; and (d) use best endeavours to procure credit of the Sale Shares to the Demat Account of the Purchaser.
(iii) The Seller shall, to the extent it is able to do so through exercise of its voting rights, procure that a Board meeting is held at which the following business shall be transacted:
(a) the appointment of directors nominated signed by the Purchaser on the Board shall be approved; and
(b) an extra-ordinary general meeting of the shareholders of the Company to approve the matters set out in Clause 5.3(iii)(a) and the amendment of the Articles of Association shall be convened.
5.4. This Agreement may be terminated on or prior to the Completion Date as follows:
(i) By the mutual written consent of Sellers, the Purchaser and the SellerNotary on the Completion Date in the form attached hereto as part of Schedule 7 “Deed of Transfer”.
(ii) By the Seller, upon written notice to 4.4 The Notary is a civil law notary with the Purchaser, if the conditions set out in Clauses 3.1 and 3.3 have not been satisfied (or satisfied subject only to Completion where applicable) or waived (where applicable) on or before 270 (two hundred seventy) days from the Execution Date or such later date as may be mutually agreed between the Parties in writing (“Long Stop Date”); provided that the Seller shall not be entitled to terminate this Agreement pursuant to this Clause 5.4(ii) if Seller’s breach of this Agreement has prevented or materially delayed the consummation Lawyers. Each of the Transactions (which term for the purposes of this Clause 5.4(ii) shall not include the Financing);
(iii) By the Purchaser, upon written notice to the Seller, if the conditions set out in Clauses 3.2 Sellers and 3.3 have not been satisfied (or satisfied subject only to Completion where applicable) or waived (where applicable) on or before the Long Stop Date; provided that the Purchaser shall not be entitled to terminate this Agreement pursuant to this Clause 5.4(iii) if Purchaser’s breach of this Agreement has prevented or materially delayed the consummation of the Transactions.
(iv) By the Seller (if the Seller acknowledges that it is not in material breach of the Seller Warranties, covenants or agreements under this Agreement so as to cause any of the conditions set forth in Clause 3.2 and/or 3.3(i) not to be satisfied), upon written notice to the Purchaser, if there has been a material inaccuracy of any statement or warranty, or any unremedied material breach of a covenant or other agreement, of the Purchaser contained in this Agreement, which violation, breach or inaccuracy would cause any of the conditions set forth in Clause 3.1 and/or 3.3 not to be satisfied as of the Completion Date, and such violation, breach or inaccuracy has not been waived by the Seller or cured by the Purchaser within 20 (twenty) Business Days after receipt by the Purchaser of written notice thereof from the Seller or is not reasonably capable of being cured prior to the Long Stop Date.
(v) By the Purchaser (if the Purchaser is not in material breach of the Purchaser Warranties, covenants or agreements under this Agreement so as to cause any of the conditions set forth in Clause 3.1 and/or 3.3 not to be satisfied), upon written notice to the Seller, if there has been a material inaccuracy of any statement or warranty, or any unremedied material breach of a covenant or other agreement, of the Seller contained in this Agreement, which violation, breach or inaccuracy would cause any of the conditions set forth in Clauses 3.2 and/or 3.3(i) not to be satisfied as of the Completion Date, and such violation, breach or inaccuracy has not been waived by the Purchaser or cured by the Seller within 20 (twenty) Business Days after receipt by the Seller of written notice thereof from the Purchaser or is not reasonably capable of being cured prior to the Long Stop Date.
(vi) By the Seller or the Purchaser, upon written notice to the other, if a court of competent jurisdiction or any other Governmental Authority shall have issued a final, non-appealable order preventing or otherwise prohibiting the consummation of the Transactions.
5.5. If this Agreement is terminated prior to Completion in accordance with Clause 5.4 above,
(i) this Agreement shall become void and of no further force and effect; provided, however, that the provisions of this Clause 5.5 and Clauses 1 (Definitions and Interpretation), 11 (Announcements and Confidentiality), 12 (Notices), 13 (Governing Law, Disputes and Jurisdiction), 14.1 (Entire Agreement), 14.6 (Variation), 14.7 (No Assignment), 14.8 (Waiver), 14.9 (Severability), 14.10 (Supersession) and 14.11 (Expenses) shall survive the termination of this Agreement indefinitely and that nothing herein shall relieve any Party from any liability for fraud or any breach aware of the provisions of this Agreement prior to such termination; and
the Ordinance containing Rules of Professional Conduct and Ethics (ii“Verordening beroeps- en gedragsregels”) if applicable, the Observer shall no longer be entitled to attend the meetings of the Board Royal Professional Organisation of Civil Law Notaries (or any committee thereof) Koninklijke Notariële Beroepsorganisatie). Each Seller as well as the Purchaser acknowledges and agrees that the nominees Purchaser’s Lawyers may advise and act on behalf of the Purchaser appointed on the Board in accordance with Clause 6.2 shall resign with immediate effectrespect to this Agreement and any agreements and/or any disputes related to or resulting from this Agreement.
Appears in 2 contracts
Sources: Share Sale and Purchase Agreement (Buhrmann Nv), Share Sale and Purchase Agreement (Apollo Investment Fund Iv Lp)
Completion. 5.1. Subject to 4.1 This Agreement shall be completed forthwith upon the conditions set out signing of this Agreement at Hong Kong or at such other place or in Clauses 3.1, 3.2 and 3.3, Completion shall take place on any other manner as may be agreed between the Completion Dateparties.
5.2. The obligations 4.2 On or before Completion, Seller A and Seller B shall procure that the board of each directors of the Parties under Clause 5.3 below are interdependent of each other. The Completion shall not occur unless all of the obligations specified in Clause 5.3, have been simultaneously complied with and are fully effective.
5.3. On the Completion DateCompany pass resolutions:
(i) Subject to deductions pursuant to Clause 4.4, the Purchaser shall remit the Purchase Consideration (in immediately available fundsa) to approve the Seller’s Bank Account.
(ii) The Seller shall (a) provide to its Depository Participant duly executed DP Instructions in the prescribed form for registration of the transfer of the Sale Shares to the Demat Account Purchasers or its nominee(s) in accordance with the terms and conditions of the Purchaser (details of which shall be provided to the Seller in writing as soon as practicable after the Execution Date); (b) procure its Depository Participant to duly acknowledge such DP Instructions; (c) deliver a copy of such acknowledgement to the Purchaser; and (d) use best endeavours to procure credit of the Sale Shares to the Demat Account of the Purchaser.
(iii) The Seller shall, to the extent it is able to do so through exercise of its voting rights, procure that a Board meeting is held at which the following business shall be transacted:
(a) the appointment of directors nominated by the Purchaser on the Board shall be approvedthis Agreement; and
(b) an extra-ordinary general meeting of the shareholders of the Company to approve the deal with and resolve upon such other matters set out in Clause 5.3(iii)(a) and the amendment of the Articles of Association shall be convened.
5.4. This Agreement may be terminated on or prior to the Completion Date as follows:
(i) By the mutual written consent of the Purchaser and the Seller.
(ii) By the Seller, upon written notice to the Purchaser, if the conditions set out in Clauses 3.1 and 3.3 have not been satisfied (or satisfied subject only to Completion where applicable) or waived (where applicable) on or before 270 (two hundred seventy) days from the Execution Date or such later date as may be mutually agreed between the Parties in writing (“Long Stop Date”); provided that the Seller shall not be entitled to terminate this Agreement pursuant to this Clause 5.4(ii) if Seller’s breach of this Agreement has prevented or materially delayed the consummation of the Transactions (which term reasonably require for the purposes of this Clause 5.4(ii) shall not include the Financing);
(iii) By the Purchaser, upon written notice giving effect to the Seller, if the conditions set out in Clauses 3.2 and 3.3 have not been satisfied (or satisfied subject only to Completion where applicable) or waived (where applicable) on or before the Long Stop Date; provided that the Purchaser shall not be entitled to terminate this Agreement pursuant to this Clause 5.4(iii) if Purchaser’s breach of this Agreement has prevented or materially delayed the consummation of the Transactions.
(iv) By the Seller (if the Seller is not in material breach of the Seller Warranties, covenants or agreements under this Agreement so as to cause any of the conditions set forth in Clause 3.2 and/or 3.3(i) not to be satisfied), upon written notice to the Purchaser, if there has been a material inaccuracy of any statement or warranty, or any unremedied material breach of a covenant or other agreement, of the Purchaser contained in this Agreement, which violation, breach or inaccuracy would cause any of the conditions set forth in Clause 3.1 and/or 3.3 not to be satisfied as of the Completion Date, and such violation, breach or inaccuracy has not been waived by the Seller or cured by the Purchaser within 20 (twenty) Business Days after receipt by the Purchaser of written notice thereof from the Seller or is not reasonably capable of being cured prior to the Long Stop Date.
(v) By the Purchaser (if the Purchaser is not in material breach of the Purchaser Warranties, covenants or agreements under this Agreement so as to cause any of the conditions set forth in Clause 3.1 and/or 3.3 not to be satisfied), upon written notice to the Seller, if there has been a material inaccuracy of any statement or warranty, or any unremedied material breach of a covenant or other agreement, of the Seller contained in this Agreement, which violation, breach or inaccuracy would cause any of the conditions set forth in Clauses 3.2 and/or 3.3(i) not to be satisfied as of the Completion Date, and such violation, breach or inaccuracy has not been waived by the Purchaser or cured by the Seller within 20 (twenty) Business Days after receipt by the Seller of written notice thereof from the Purchaser or is not reasonably capable of being cured prior to the Long Stop Date.
(vi) By the Seller or the Purchaser, upon written notice to the other, if a court of competent jurisdiction or any other Governmental Authority shall have issued a final, non-appealable order preventing or otherwise prohibiting the consummation of the Transactions.
5.5. If this Agreement is terminated prior to Completion in accordance with Clause 5.4 above,
(i) this Agreement shall become void and of no further force and effect; provided, however, that the provisions of this Clause 5.5 and Clauses 1 Agreement.
4.3 At Completion, Seller A shall deliver or procure to be delivered to the Purchasers:
(Definitions and Interpretation)a) valid share certificate(s) for the Sale A Shares and, 11 if any such certificate is not in the name of Seller A, evidence satisfactory to the Purchaser that the Sale A Shares is beneficially owned by Seller A;
(Announcements and Confidentiality), 12 (Notices), 13 (Governing Law, Disputes and Jurisdiction), 14.1 (Entire Agreement), 14.6 (Variation), 14.7 (No Assignment), 14.8 (Waiver), 14.9 (Severability), 14.10 (Supersessionb) and 14.11 (Expensesvalid instrument of transfer(s) shall survive duly executed by Seller A in relation to the termination of this Agreement indefinitely and that nothing herein shall relieve any Party from any liability for fraud or any breach Sale A Shares in favour of the provisions of this Agreement prior to such termination; andrelevant Purchaser and/or its nominee;
(iic) if applicable, the Observer shall no longer be entitled to attend the meetings a certified true copy of the Board (or any committee thereof) and the nominees resolution of the board of directors of the Company referred to in Clause 4.2;
(d) such other document and deeds relating to the transactions contemplated hereby as may be required by the relevant Purchaser.
4.4 At Completion, Seller B shall deliver or procure to be delivered to the Purchasers:
(a) valid share certificate(s) for the Sale B Shares and, if any such certificate is not in the name of Seller B, evidence satisfactory to the relevant Purchaser appointed on that the Board Sale B Shares is beneficially owned by Seller B;
(b) valid instrument(s) of transfer duly executed by Seller B in accordance with relation to the Sale B Shares in favour of the relevant Purchaser and/or its nominee;
(c) a certified true copy of the resolution of the board of directors of the Company referred to in Clause 6.2 shall resign with immediate effect4.2;
(d) such other document and deeds relating to the transactions contemplated hereby as may be required by the relevant Purchaser.
Appears in 2 contracts
Sources: Sale and Purchase Agreement (C&K Group LTD), Sale and Purchase Agreement (C&K Group LTD)
Completion. 5.1. 5.1 Subject to fulfilment (or waiver by the conditions set out in Clauses 3.1, 3.2 and 3.3Purchaser) of the Conditions, Completion shall take place at 10:00 a.m. on the Completion Date, at 20/F, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇-▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇ (or at such other place and time as may be agreed by the Parties in writing) when all (but not some only) of the events described in this Clause 5 shall occur.
5.2. The 5.2 At Completion, the Vendor and the Vendor Guarantor shall deliver to the Purchaser:
5.2.1 duly executed transfer form(s) in respect of all of the Sale Shares in favour of the Purchaser or its wholly owned subsidiary referred to in Clause 2 designated by the Purchaser or the nominee(s) of either of them together with (in respect of the relevant physical Sale Shares) the relative share certificate(s) and/or (in respect of the relevant Sale Shares held in CCASS) the relevant instructions to the relevant CCASS participant(s) to effect the transfer(s) of the relevant Sale Shares through CCASS to the Purchaser or its wholly owned subsidiary referred to in Clause 2 designated by the Purchaser or such person(s) having an account(s) with CCASS as may be notified in writing by the Purchaser to the Vendor at least 2 Business Days prior to the Completion Date;
5.2.2 certified copies of the minutes of the meetings of directors, or the written approvals of the directors (as the case may be), of each of the Vendor and the Vendor Guarantor required to authorise the execution and completion of this Agreement by the Vendor and the Vendor Guarantor, and the performance by the Vendor and the Vendor Guarantor of their respective obligations hereunder;
5.2.3 legal opinions from legal counsel for the Vendor and the Vendor Guarantor in their respective jurisdictions of incorporation, confirming that the Vendor and the Vendor Guarantor are each validly incorporated and have the capacity to enter into this Agreement and that this Agreement constitutes the legal, valid and enforceable obligations of each of the Parties under Clause 5.3 below are interdependent of each other. The Completion shall not occur unless all of the obligations specified in Clause 5.3, have been simultaneously complied with and are fully effective.them; and
5.3. On the Completion Date:
(i) Subject to deductions pursuant to Clause 4.4, the Purchaser shall remit the Purchase Consideration (in immediately available funds) to the Seller’s Bank Account.
(ii) The Seller shall (a) provide to its Depository Participant duly executed DP Instructions in the prescribed form for 5.2.4 if Hong Kong stamp duty is payable on the transfer of the Sale Shares to the Demat Account Shares, a cheque drawn in favour of "The Government of the Purchaser (details Hong Kong Special Administrative Region" in the amount of which shall be provided to the Seller Vendor's 50% share of the estimated stamp duty payable in writing as soon as practicable after respect of the Execution Date); (b) procure its Depository Participant to duly acknowledge such DP Instructions; (c) deliver a copy of such acknowledgement to the Purchaser; sale and (d) use best endeavours to procure credit purchase of the Sale Shares to the Demat Account of the PurchaserShares.
(iii) The Seller shall, to the extent it is able to do so through exercise of its voting rights, procure that a Board meeting is held at which the following business shall be transacted:
(a) the appointment of directors nominated by the Purchaser on the Board shall be approved; and
(b) an extra-ordinary general meeting of the shareholders of the Company to approve the matters set out in Clause 5.3(iii)(a) and the amendment of the Articles of Association shall be convened.
5.4. This Agreement may be terminated on or prior to the Completion Date as follows:
(i) By the mutual written consent of the Purchaser and the Seller.
(ii) By the Seller, upon written notice to the Purchaser, if the conditions set out in Clauses 3.1 and 3.3 have not been satisfied (or satisfied subject only to Completion where applicable) or waived (where applicable) on or before 270 (two hundred seventy) days from the Execution Date or such later date as may be mutually agreed between the Parties in writing (“Long Stop Date”); provided that the Seller shall not be entitled to terminate this Agreement pursuant to this Clause 5.4(ii) if Seller’s breach of this Agreement has prevented or materially delayed the consummation of the Transactions (which term for the purposes of this Clause 5.4(ii) shall not include the Financing);
(iii) By the Purchaser, upon written notice to the Seller, if the conditions set out in Clauses 3.2 and 3.3 have not been satisfied (or satisfied subject only to Completion where applicable) or waived (where applicable) on or before the Long Stop Date; provided that the Purchaser shall not be entitled to terminate this Agreement pursuant to this Clause 5.4(iii) if Purchaser’s breach of this Agreement has prevented or materially delayed the consummation of the Transactions.
(iv) By the Seller (if the Seller is not in material breach of the Seller Warranties, covenants or agreements under this Agreement so as to cause any of the conditions set forth in Clause 3.2 and/or 3.3(i) not to be satisfied), upon written notice to the Purchaser, if there has been a material inaccuracy of any statement or warranty, or any unremedied material breach of a covenant or other agreement, of the Purchaser contained in this Agreement, which violation, breach or inaccuracy would cause any of the conditions set forth in Clause 3.1 and/or 3.3 not to be satisfied as of the Completion Date, and such violation, breach or inaccuracy has not been waived by the Seller or cured by the Purchaser within 20 (twenty) Business Days after receipt by the Purchaser of written notice thereof from the Seller or is not reasonably capable of being cured prior to the Long Stop Date.
(v) By the Purchaser (if the Purchaser is not in material breach of the Purchaser Warranties, covenants or agreements under this Agreement so as to cause any of the conditions set forth in Clause 3.1 and/or 3.3 not to be satisfied), upon written notice to the Seller, if there has been a material inaccuracy of any statement or warranty, or any unremedied material breach of a covenant or other agreement, of the Seller contained in this Agreement, which violation, breach or inaccuracy would cause any of the conditions set forth in Clauses 3.2 and/or 3.3(i) not to be satisfied as of the Completion Date, and such violation, breach or inaccuracy has not been waived by the Purchaser or cured by the Seller within 20 (twenty) Business Days after receipt by the Seller of written notice thereof from the Purchaser or is not reasonably capable of being cured prior to the Long Stop Date.
(vi) By the Seller or the Purchaser, upon written notice to the other, if a court of competent jurisdiction or any other Governmental Authority shall have issued a final, non-appealable order preventing or otherwise prohibiting the consummation of the Transactions.
5.5. If this Agreement is terminated prior to Completion in accordance with Clause 5.4 above,
(i) this Agreement shall become void and of no further force and effect; provided, however, that the provisions of this Clause 5.5 and Clauses 1 (Definitions and Interpretation), 11 (Announcements and Confidentiality), 12 (Notices), 13 (Governing Law, Disputes and Jurisdiction), 14.1 (Entire Agreement), 14.6 (Variation), 14.7 (No Assignment), 14.8 (Waiver), 14.9 (Severability), 14.10 (Supersession) and 14.11 (Expenses) shall survive the termination of this Agreement indefinitely and that nothing herein shall relieve any Party from any liability for fraud or any breach of the provisions of this Agreement prior to such termination; and
(ii) if applicable, the Observer shall no longer be entitled to attend the meetings of the Board (or any committee thereof) and the nominees of the Purchaser appointed on the Board in accordance with Clause 6.2 shall resign with immediate effect.
Appears in 2 contracts
Sources: Sale and Purchase of Shares Agreement (PCCW LTD), Agreement for the Sale and Purchase of Shares (PCCW LTD)
Completion. 5.1. Subject to 9.1 Completion shall take place at the offices of NautaDutilh N.V. at Strawinskylaan 1999, Amsterdam on the last day of the month in which fulfilment or waiver of the conditions set out in Clauses 3.1clause 4 (Conditions to Completion) takes place, 3.2 except that where less than five Business Days remain between such fulfilment and 3.3service and the last day of the month, Completion shall take place on the Completion Date.
5.2. The obligations of each of the Parties under Clause 5.3 below are interdependent of each other. The Completion shall not occur unless all of the obligations specified in Clause 5.3, have been simultaneously complied with and are fully effective.
5.3. On the Completion Dateplace:
(iA) Subject to deductions pursuant to Clause 4.4, on the Purchaser shall remit last day of the Purchase Consideration (in immediately available funds) to the Seller’s Bank Account.following month; or
(iiB) The Seller shall (a) provide to its Depository Participant duly executed DP Instructions in the prescribed form for the transfer of the Sale Shares to the Demat Account of the Purchaser (details of which shall be provided to the Seller in writing as soon as practicable after the Execution Date); (b) procure its Depository Participant to duly acknowledge at such DP Instructions; (c) deliver a copy of such acknowledgement to the Purchaser; and (d) use best endeavours to procure credit of the Sale Shares to the Demat Account of the Purchaser.
(iii) The Seller shallother location, to the extent it is able to do so through exercise of its voting rights, procure that a Board meeting is held at which the following business shall be transacted:
(a) the appointment of directors nominated by the Purchaser on the Board shall be approved; and
(b) an extra-ordinary general meeting of the shareholders of the Company to approve the matters set out in Clause 5.3(iii)(a) and the amendment of the Articles of Association shall be convened.
5.4. This Agreement may be terminated on time or prior to the Completion Date as follows:
(i) By the mutual written consent of the Purchaser and the Seller.
(ii) By the Seller, upon written notice to the Purchaser, if the conditions set out in Clauses 3.1 and 3.3 have not been satisfied (or satisfied subject only to Completion where applicable) or waived (where applicable) on or before 270 (two hundred seventy) days from the Execution Date or such later date as may be mutually agreed between the Parties Sellers, it being understood that the transfers of the Shares and the JV Co Shares shall take place on Completion at the offices of the Notary by way of execution of the Deeds of Transfer before the Notary.
9.2 At Completion, the parties shall comply with their respective obligations in writing sub-clauses 2.1 to 2.3 (“Long Stop Date”in each case as applicable) and the Sellers shall do those things listed in Part A (Seller’s obligations) and Part D (Execution of Deeds of Transfer) of Schedule 2 (Completion arrangements); provided the Purchaser shall do, and Liberty Global shall procure that the Seller Purchaser does, those things listed in Part B (Purchaser’s obligations) of Schedule 2 (Completion arrangements); and the Guarantors shall not do those things listed in Part E (Guarantors’ obligations) of Schedule 2 (Completion arrangements). Completion shall take place in accordance with Part C (General) of Schedule 2 (Completion arrangements).
9.3 No party shall be entitled obliged to terminate this Agreement pursuant to this Clause 5.4(ii) if Seller’s breach of this Agreement has prevented or materially delayed the consummation complete any of the Transactions (which term for the purposes of this Clause 5.4(ii) shall not include the Financing);
(iii) By the Purchaser, upon written notice to the Seller, if the conditions transactions set out in Clauses 3.2 and 3.3 have not been satisfied (sub-clauses 2.1 to 2.3 or satisfied subject only to Completion where applicable) or waived (where applicable) on or before the Long Stop Date; provided that the Purchaser shall not be entitled to terminate this Agreement pursuant to this Clause 5.4(iii) if Purchaser’s breach of this Agreement has prevented or materially delayed the consummation of the Transactions.
(iv) By the Seller (if the Seller is not in material breach of the Seller Warranties, covenants or agreements under this Agreement so as to cause carry out any of the conditions steps set forth out in Clause Schedule 2 (Completion arrangements) unless sub-clauses 3.1 or 3.2 and/or 3.3(i(as applicable), 6.1, 6.2, 6.5(C) not and 6.6 or 6.7 (as applicable) have been complied with and irrevocable arrangements are in place for all such transactions and steps to be satisfied), upon written notice to completed by all relevant parties on the Purchaser, if there has been a material inaccuracy Completion Date in accordance with the sequence of any statement or warranty, or any unremedied material breach of a covenant or other agreement, of the Purchaser contained events set out in this Agreement. For the avoidance of doubt, which violation, breach or inaccuracy would cause any (A) both the beneficial and legal ownership of the conditions set forth in Clause 3.1 and/or 3.3 Liberty Global Target Company Shares and the Vodafone Target Company Shares will transfer to Purchaser at Completion and not to be satisfied as before and (B) both the beneficial and legal ownership of the JV Co Shares will transfer to Vodafone at Completion Date, and such violation, breach or inaccuracy has not been waived by the Seller or cured by the Purchaser within 20 (twenty) Business Days after receipt by the Purchaser of written notice thereof from the Seller or is not reasonably capable of being cured prior to the Long Stop Datebefore.
(v) By 9.4 If the Purchaser (if the Purchaser is not in material breach of the Purchaser Warranties, covenants or agreements under this Agreement so as to cause any of the conditions set forth in Clause 3.1 and/or 3.3 not to be satisfied), upon written notice to the Seller, if there has been a material inaccuracy of any statement or warranty, or any unremedied material breach of a covenant or other agreement, of the Seller contained in this Agreement, which violation, breach or inaccuracy would cause any of the conditions set forth in Clauses 3.2 and/or 3.3(i) not to be satisfied as of the Completion Date, and such violation, breach or inaccuracy has not been waived by the Purchaser or cured by the Seller within 20 (twenty) Business Days after receipt by the Seller of written notice thereof from the Purchaser or is not reasonably capable of being cured prior to the Long Stop Date.Estimated Vodafone Equalisation Consideration is:
(viA) By the Seller or the Purchasera positive number, upon written notice to the other, if a court of competent jurisdiction or any other Governmental Authority then Vodafone shall have issued a final, non-appealable order preventing or otherwise prohibiting the consummation of the Transactions.
5.5. If this Agreement is terminated prior to Completion in accordance with Clause 5.4 above,procure; or
(iB) this Agreement a negative number, then Liberty Global shall become void and of no further force and effect; provided, however, that the provisions of this Clause 5.5 and Clauses 1 (Definitions and Interpretation), 11 (Announcements and Confidentiality), 12 (Notices), 13 (Governing Law, Disputes and Jurisdiction), 14.1 (Entire Agreement), 14.6 (Variation), 14.7 (No Assignment), 14.8 (Waiver), 14.9 (Severability), 14.10 (Supersession) and 14.11 (Expenses) shall survive the termination of this Agreement indefinitely and that nothing herein shall relieve any Party from any liability for fraud or any breach of the provisions of this Agreement prior to such termination; and
(ii) if applicable, the Observer shall no longer be entitled to attend the meetings of the Board (or any committee thereof) and the nominees of the Purchaser appointed on the Board in accordance with Clause 6.2 shall resign with immediate effect.procure,
Appears in 2 contracts
Sources: Contribution and Transfer Agreement (Vodafone Group Public LTD Co), Contribution and Transfer Agreement (Liberty Global PLC)
Completion. 5.1. Subject to the conditions set out in Clauses 3.1, 3.2 and 3.3, 5.1 Completion under this Agreement shall take place at the offices of the Sellers on either the last Business Day of the month if the Notification Date is ten (10) or more Business Days prior to the last Business Day of such month of notification or on the Completion Datelast Business Day of the immediately succeeding month if the Notification Date is less than ten (10) Business Days prior to the last Business Day of such month of notification, or at such other location and/or at such other time as the Parties may agree in writing.
5.2. The obligations of each of the Parties under Clause 5.3 below are interdependent of each other. The Completion shall not occur unless all of the obligations specified in Clause 5.3, have been simultaneously complied with and are fully effective.
5.3. 5.2 On the Completion Date:
(i) Subject to deductions pursuant to Clause 4.4, the Purchaser shall remit the Purchase Consideration (in immediately available funds) to the Seller’s Bank Account.
(ii) The Seller shall (a) provide to its Depository Participant duly executed DP Instructions in the prescribed form for the transfer Date all but not part of the Sale Shares to the Demat Account of the Purchaser (details of which shall be provided to the Seller in writing as soon as practicable after the Execution Date); (b) procure its Depository Participant to duly acknowledge such DP Instructions; (c) deliver a copy of such acknowledgement to the Purchaser; and (d) use best endeavours to procure credit of the Sale Shares to the Demat Account of the Purchaser.
(iii) The Seller shall, to the extent it is able to do so through exercise of its voting rights, procure that a Board meeting is held at which the following business shall be transacted:
5.2.1 The Purchaser shall:
i. pay to the Sellers the Final Consideration, by means of telegraphic transfer in immediately available funds as directed by the Sellers for value in Dollars on such Completion Date;
j. deliver to the Sellers (ato the extent not already delivered prior to Completion) a copy of the appointment relevant guarantees, releases, consents, approvals, confirmations or waivers, if any, referred to in Clause 2.2 and obtained by or on behalf of the Purchaser;
k. deliver to the Sellers (to the extent not already delivered prior to Completion) a copy, certified as a true copy and in full force and effect by a director or the legal manager of the Purchaser, of (i) a resolution of the board of directors nominated by of the Purchaser authorising its entry into the transactions contemplated by this Agreement; and (ii) a Power of Attorney authorising a person or persons to sign this Agreement and the Assignment Documents on behalf of the Board shall be approvedPurchaser; and
(b) an extra-ordinary general meeting l. execute and deliver those of the shareholders Assignment Documents to which it is a signatory.
5.2.2 The Sellers shall, after confirmation of receipt of the Company to approve the matters set out in amounts payable under Clause 5.3(iii)(a) and the amendment of the Articles of Association shall be convened.
5.4. This Agreement may be terminated on or prior to the Completion Date as follows:
(i) By the mutual written consent of the Purchaser and the Seller.
(ii) By the Seller, upon written notice to the Purchaser, if the conditions set out in Clauses 3.1 and 3.3 have not been satisfied (or satisfied subject only to Completion where applicable) or waived (where applicable) on or before 270 (two hundred seventy) days from the Execution Date or such later date as may be mutually agreed between the Parties in writing (“Long Stop Date”); provided that the Seller shall not be entitled to terminate this Agreement pursuant to this Clause 5.4(ii) if Seller’s breach of this Agreement has prevented or materially delayed the consummation of the Transactions (which term for the purposes of this Clause 5.4(ii) shall not include the Financing);
(iii) By the Purchaser, upon written notice to the Seller, if the conditions set out in Clauses 3.2 and 3.3 have not been satisfied (or satisfied subject only to Completion where applicable) or waived (where applicable) on or before the Long Stop Date; provided that the Purchaser shall not be entitled to terminate this Agreement pursuant to this Clause 5.4(iii) if Purchaser’s breach of this Agreement has prevented or materially delayed the consummation of the Transactions.
(iv) By the Seller (if the Seller is not in material breach of the Seller Warranties, covenants or agreements under this Agreement so as to cause any of the conditions set forth in Clause 3.2 and/or 3.3(i) not to be satisfied5.2.1(a), upon written notice deliver to the Purchaser, if there has been a material inaccuracy of any statement or warranty, or any unremedied material breach of a covenant or other agreement, of the Purchaser contained in this Agreement, which violation, breach or inaccuracy would cause any of the conditions set forth in Clause 3.1 and/or 3.3 not to be satisfied as of the Completion Date, and such violation, breach or inaccuracy has not been waived by the Seller or cured by the Purchaser within 20 (twenty) Business Days after receipt by the Purchaser of written notice thereof from the Seller or is not reasonably capable of being cured prior to the Long Stop Date.
(v) By the Purchaser (if the Purchaser is not in material breach of the Purchaser Warranties, covenants or agreements under this Agreement so as to cause any of the conditions set forth in Clause 3.1 and/or 3.3 not to be satisfied), upon written notice to the Seller, if there has been a material inaccuracy of any statement or warranty, or any unremedied material breach of a covenant or other agreement, of the Seller contained in this Agreement, which violation, breach or inaccuracy would cause any of the conditions set forth in Clauses 3.2 and/or 3.3(i) extent not to be satisfied as of the Completion Date, and such violation, breach or inaccuracy has not been waived by the Purchaser or cured by the Seller within 20 (twenty) Business Days after receipt by the Seller of written notice thereof from the Purchaser or is not reasonably capable of being cured already delivered prior to the Long Stop Date.
(vi) By the Seller or the Purchaser, upon written notice to the other, if a court of competent jurisdiction or any other Governmental Authority shall have issued a final, non-appealable order preventing or otherwise prohibiting the consummation of the Transactions.
5.5. If this Agreement is terminated prior to Completion in accordance with Clause 5.4 above,
(i) this Agreement shall become void and of no further force and effect; provided, however, that the provisions of this Clause 5.5 and Clauses 1 (Definitions and Interpretation), 11 (Announcements and Confidentiality), 12 (Notices), 13 (Governing Law, Disputes and Jurisdiction), 14.1 (Entire Agreement), 14.6 (Variation), 14.7 (No Assignment), 14.8 (Waiver), 14.9 (Severability), 14.10 (Supersession) and 14.11 (Expenses) shall survive the termination of this Agreement indefinitely and that nothing herein shall relieve any Party from any liability for fraud or any breach of the provisions of this Agreement prior to such termination; and
(ii) if applicable, the Observer shall no longer be entitled to attend the meetings of the Board (or any committee thereof) and the nominees of the Purchaser appointed on the Board in accordance with Clause 6.2 shall resign with immediate effect.Completion):
Appears in 2 contracts
Sources: Hive in Agreement, Hive in Agreement (Endeavour International Corp)
Completion. 5.1. Subject to the conditions set out in Clauses 3.1, 3.2 and 3.3, 5.1 Completion under this Agreement shall take place on the Completion Date.
5.2. The obligations of each of the Parties under Clause 5.3 below are interdependent of each other. The Completion shall not occur unless within ten (10) Business Days after all of the obligations specified conditions referred to in Clause 5.3, 2.2 have been simultaneously complied with satisfied, at such location and are fully effectiveat such time as the Parties may agree.
5.3. 5.2 On the Completion Date:
(i) Subject to deductions pursuant to Clause 4.4Date all, the Purchaser shall remit the Purchase Consideration (in immediately available funds) to the Seller’s Bank Account.
(ii) The Seller shall (a) provide to its Depository Participant duly executed DP Instructions in the prescribed form for the transfer but not part only, of the Sale Shares to the Demat Account of the Purchaser (details of which shall be provided to the Seller in writing as soon as practicable after the Execution Date); (b) procure its Depository Participant to duly acknowledge such DP Instructions; (c) deliver a copy of such acknowledgement to the Purchaser; and (d) use best endeavours to procure credit of the Sale Shares to the Demat Account of the Purchaser.
(iii) The Seller shall, to the extent it is able to do so through exercise of its voting rights, procure that a Board meeting is held at which the following business shall be transacted:
5.2.1 The Seller shall deliver to the Purchaser (a) to the appointment extent not already delivered prior to Completion and/or already in the possession of the Purchaser):
5.2.1.1 the Assignment Documents duly and validly executed by all the signatory parties thereto other than the Purchaser;
5.2.1.2 a copy of the Secretary’s Consents and all other relevant consents, approvals or waivers, if any, referred to in Clause 2.2 and obtained by or on behalf of the Seller;
5.2.1.3 a copy, certified as a true copy and in full force and effect by a director or the secretary of the Seller, of a resolution of the board of directors nominated by of the Purchaser Seller authorising a person or persons to execute this Agreement and the Assignment Documents on behalf of the Board shall be approvedSeller; and
(b) an extra-ordinary general meeting of the shareholders of the Company to approve the matters set out 5.2.1.4 written confirmation in Clause 5.3(iii)(a) and the amendment of the Articles of Association shall be convened.
5.4. This Agreement may be terminated on or prior terms satisfactory to the Completion Date as follows:
(i) By Purchaser that the mutual written consent Seller has notified to the relevant insurers the interest of the Purchaser in all property, assets and rights associated with the Interests and the SellerLicensed Interest Documents.
(ii) By 5.2.2 The Purchaser shall:
5.2.2.1 pay to the Seller the sums specified in the Interim Completion Statement, subject to Clause 3.11, by means of telegraphic transfer in immediately available funds to the Seller’s Account for value in Sterlingon the Completion Date;
5.2.2.2 deliver to the Seller the Assignment Documents duly and validly executed by the Purchaser;
5.2.2.3 deliver to the Seller a copy of all relevant consents, upon written notice approvals, or waivers, if any, referred to in Clause 2.2 and obtained by or on behalf of the Purchaser; and
5.2.2.4 deliver to the Seller a copy, certified as a true copy and in full force and effect by a director or the secretary of the Purchaser, if the conditions set out in Clauses 3.1 and 3.3 have not been satisfied (or satisfied subject only to Completion where applicable) or waived (where applicable) on or before 270 (two hundred seventy) days from the Execution Date or such later date as may be mutually agreed between the Parties in writing (“Long Stop Date”); provided that the Seller shall not be entitled to terminate this Agreement pursuant to this Clause 5.4(ii) if Seller’s breach of this Agreement has prevented or materially delayed the consummation a resolution of the Transactions (which term for the purposes board of this Clause 5.4(ii) shall not include the Financing);
(iii) By the Purchaser, upon written notice to the Seller, if the conditions set out in Clauses 3.2 and 3.3 have not been satisfied (or satisfied subject only to Completion where applicable) or waived (where applicable) on or before the Long Stop Date; provided that the Purchaser shall not be entitled to terminate this Agreement pursuant to this Clause 5.4(iii) if Purchaser’s breach of this Agreement has prevented or materially delayed the consummation of the Transactions.
(iv) By the Seller (if the Seller is not in material breach of the Seller Warranties, covenants or agreements under this Agreement so as to cause any of the conditions set forth in Clause 3.2 and/or 3.3(i) not to be satisfied), upon written notice to the Purchaser, if there has been a material inaccuracy of any statement or warranty, or any unremedied material breach of a covenant or other agreement, directors of the Purchaser contained authorising a person or persons to execute this Agreement and the Assignment Documents on behalf of the Purchaser; and the Parties acknowledge and agree that all acts and transactions constituting Completion shall be regarded as a single transaction so that, at the option of the Party who is interested in the carrying out of the relevant act or transaction, no action or transaction shall be deemed to have taken place unless and until all other actions and transactions constituting Completion shall have taken place as provided in this Agreement, which violation, breach or inaccuracy would cause any . The Parties acknowledge the essential nature of this provision.
5.3 Each of the conditions set forth Parties shall and, if appropriate, shall ensure that its respective Affiliates shall execute such other documents and do all such other acts and things as may reasonably be required, in Clause 3.1 and/or 3.3 not order to be satisfied as effect the transfer of the Completion Date, and such violation, breach or inaccuracy has not been waived by the Seller or cured by Interests to the Purchaser within 20 (twenty) Business Days after receipt by and to implement the Purchaser transactions contemplated hereunder and otherwise to carry out the true intent of written notice thereof from the Seller or is not reasonably capable of being cured prior to the Long Stop Date.
(v) By the Purchaser (if the Purchaser is not in material breach of the Purchaser Warranties, covenants or agreements under this Agreement so as to cause any of the conditions set forth in Clause 3.1 and/or 3.3 not to be satisfied), upon written notice to the Seller, if there has been a material inaccuracy of any statement or warranty, or any unremedied material breach of a covenant or other agreement, of the Seller contained in this Agreement, which violation, breach or inaccuracy would cause any of the conditions set forth in Clauses 3.2 and/or 3.3(i) not to be satisfied as of the Completion Date, and such violation, breach or inaccuracy has not been waived by the Purchaser or cured by the Seller within 20 (twenty) Business Days after receipt by the Seller of written notice thereof from the Purchaser or is not reasonably capable of being cured prior to the Long Stop Date.
(vi) By the Seller or the Purchaser, upon written notice to the other, if a court of competent jurisdiction or any other Governmental Authority shall have issued a final, non-appealable order preventing or otherwise prohibiting the consummation of the Transactions.
5.5. If this Agreement is terminated prior to Completion in accordance with Clause 5.4 above,
(i) this Agreement shall become void and of no further force and effect; provided, however, that the provisions of this Clause 5.5 and Clauses 1 (Definitions and Interpretation), 11 (Announcements and Confidentiality), 12 (Notices), 13 (Governing Law, Disputes and Jurisdiction), 14.1 (Entire Agreement), 14.6 (Variation), 14.7 (No Assignment), 14.8 (Waiver), 14.9 (Severability), 14.10 (Supersession) and 14.11 (Expenses) shall survive the termination of this Agreement indefinitely and that nothing herein shall relieve any Party from any liability for fraud or any breach of the provisions of this Agreement prior to such termination; and
(ii) if applicable, the Observer shall no longer be entitled to attend the meetings of the Board (or any committee thereof) and the nominees of the Purchaser appointed on the Board in accordance with Clause 6.2 shall resign with immediate effect.
Appears in 2 contracts
Sources: Sale and Purchase Agreement, Sale and Purchase Agreement (Atp Oil & Gas Corp)
Completion. 5.1. Subject (a) The obligations of the Subscriber under this Agreement to deposit the Subscription Funds at Completion are conditional upon the following conditions being satisfied or waived by such Subscriber in writing:
(i) the Company not being in material breach of this Agreement at Completion;
(ii) each of the Warranties remaining true and accurate in all material respects at Completion;
(iii) the passing of the resolutions referred to in Clause 4.2 (b) herein;
(iv) the results of the due diligence regarding Intellectual Property Rights and scientific and regulatory matters relating to the Company and its operations conducted by the Subscriber and/or his/her advisers being satisfactory to the Subscriber;
(v) any and all rights of pre-emption or restriction on issue in respect of the Subscription Shares and other matters contemplated in this Agreement conferred on any persons under the articles of association of the Company or otherwise being waived irrevocably by the persons entitled to them;
(b) The obligations of the Company under this Agreement to issue the Subscription Shares at Completion are conditional upon the following conditions being satisfied or waived by the Company in writing:
(i) The Subscriber not being in material breach of this Agreement at Completion;
(ii) The grant of the Power of Attorney in substantially the form and content of the power of attorney attached in the Third Schedule herein; and
(iii) The passing of the resolutions referred to in Clause 4.3 (c) herein;
(bb) For the avoidance of doubt, the Subscriber herein h▇▇▇▇▇ agrees and undertakes to do all things and take all steps as are necessary to grant, execute and deliver the Power of Attorney upon the terms and conditions set out therein.
(c) The Company and/or the Subscriber may waive all or any of the conditions set out in Clauses 3.1, 3.2 and 3.3, Completion shall take place on the Completion Date.
5.2. The obligations of each of the Parties under Clause 5.3 below are interdependent of each other. The Completion shall not occur unless all of the obligations specified in Clause 5.3, have been simultaneously complied this Agreement with and are fully effective.
5.3. On the Completion Date:
(i) Subject to deductions pursuant to Clause 4.4, the Purchaser shall remit the Purchase Consideration (in immediately available funds) respect to the Sellerother Party’s Bank Accountobligations only on such terms and conditions as it may deem appropriate.
(iid) The Seller shall (a) provide to its Depository Participant duly executed DP Instructions in In the prescribed form for the transfer event of any of the Sale Shares to the Demat Account of the Purchaser (details of which shall be provided to the Seller conditions in writing as soon as practicable after the Execution Date); Clause 3.1(a) and/or (b) procure its Depository Participant to duly acknowledge such DP Instructions; (c) deliver a copy of such acknowledgement to the Purchaser; and (d) use best endeavours to procure credit of the Sale Shares to the Demat Account of the Purchaser.
(iii) The Seller shall, to the extent it is able to do so through exercise of its voting rights, procure that a Board meeting is held at which the following business shall be transacted:
(a) the appointment of directors nominated not being satisfied or waived by the Purchaser on Company and/or the Board shall be approved; and
Subscriber (b) an extra-ordinary general meeting of the shareholders of the Company to approve the matters set out in Clause 5.3(iii)(a) and the amendment of the Articles of Association shall be convened.
5.4. This Agreement may be terminated on or prior to the Completion Date as follows:
(i) By the mutual written consent of the Purchaser and the Seller.
(ii) By the Seller, upon written notice to the Purchaser, if the conditions set out in Clauses 3.1 and 3.3 have not been satisfied (or satisfied subject only to Completion where applicable) or waived by 15 April 2021 (where applicable) on or before 270 (two hundred seventy) days from the Execution Date or such later date as may be mutually agreed between the Parties may agree in writing (“Long Stop Date”); provided that the Seller shall not be entitled to terminate this Agreement pursuant to this Clause 5.4(iiwriting) if Seller’s breach of this Agreement has prevented or materially delayed the consummation of the Transactions (which term for the purposes of this Clause 5.4(ii) shall not include the Financing);
(iii) By the Purchaser, upon written notice to the Seller, if the conditions set out in Clauses 3.2 and 3.3 have not been satisfied (or satisfied subject only to Completion where applicable) or waived (where applicable) on or before the Long Stop Date; provided that the Purchaser shall not be entitled to terminate this Agreement pursuant to this Clause 5.4(iii) if Purchaser’s breach of this Agreement has prevented or materially delayed the consummation of the Transactions.
(iv) By the Seller (if the Seller is not in material breach of the Seller Warranties, covenants or agreements under this Agreement so as to cause any of the conditions set forth in Clause 3.2 and/or 3.3(i) not to be satisfied), upon written notice to the Purchaser, if there has been a material inaccuracy of any statement or warranty, or any unremedied material breach of a covenant or other agreement, of the Purchaser contained in this Agreement, which violation, breach or inaccuracy would cause any of the conditions set forth in Clause 3.1 and/or 3.3 not to be satisfied as of the Completion Date, and such violation, breach or inaccuracy has not been waived by the Seller or cured by the Purchaser within 20 (twenty) Business Days after receipt by the Purchaser of written notice thereof from the Seller or is not reasonably capable of being cured prior to the Long Stop Date.
(v) By the Purchaser (if the Purchaser is not in material breach of the Purchaser Warranties, covenants or agreements under this Agreement so as to cause any of the conditions set forth in Clause 3.1 and/or 3.3 not to be satisfied), upon written notice to the Seller, if there has been a material inaccuracy of any statement or warranty, or any unremedied material breach of a covenant or other agreement, of the Seller contained in this Agreement, which violation, breach or inaccuracy would cause any of the conditions set forth in Clauses 3.2 and/or 3.3(i) not to be satisfied as of the Completion Date, and such violation, breach or inaccuracy has not been waived by the Purchaser or cured by the Seller within 20 (twenty) Business Days after receipt by the Seller of written notice thereof from the Purchaser or is not reasonably capable of being cured prior to the Long Stop Date.
(vi) By the Seller or the Purchaser, upon written notice to the other, if a court of competent jurisdiction or any other Governmental Authority shall have issued a final, non-appealable order preventing or otherwise prohibiting the consummation of the Transactions.
5.5. If this Agreement is terminated prior to Completion in accordance with Clause 5.4 above,
(i) this Agreement shall become void and of no further force and effect; provided, however, that the provisions of this Clause 5.5 and Clauses 1 (Definitions and Interpretation), 11 (Announcements and Confidentiality), 12 (Notices), 13 (Governing Law, Disputes and Jurisdiction), 14.1 (Entire Agreement), 14.6 (Variation), 14.7 (No Assignment), 14.8 (Waiver), 14.9 (Severability), 14.10 (Supersession) and 14.11 (Expenses) shall survive the termination of this Agreement indefinitely and that nothing herein shall relieve any Party from any liability for fraud or any breach of then the provisions of this Agreement (with the exception of those set out in 7, 8, 8A, 9, 11, 12 and 13 which shall continue in full force and effect) shall forthwith terminate and cease to be of effect and save as aforesaid no Party shall have any further liability under or pursuant to the provisions of this Agreement provided that such termination shall be without prejudice to the accrued rights and liabilities of the Parties occurring prior to such termination; and
(ii) if applicable, the Observer shall no longer be entitled to attend the meetings of the Board (or any committee thereof) and the nominees of the Purchaser appointed on the Board in accordance with Clause 6.2 shall resign with immediate effect.
Appears in 2 contracts
Sources: Subscription Agreement (CytoMed Therapeutics Pte. Ltd.), Subscription Agreement (CytoMed Therapeutics Pte. Ltd.)
Completion. 5.1. Subject to the conditions set out in Clauses 3.1, 3.2 and 3.3, 5.1 Completion shall take place at the Company’s office on the Completion DateDate at 5:00 p.m. (or at such other place and time as the parties may agree) when all the acts and requirement set out in this Clause 5 shall be complied with.
5.2. The obligations 5.2 On Completion, the Vendor and or the Company (as the case may be) deliver or procure the delivery to the Purchaser of each of all the Parties under Clause 5.3 below are interdependent of each other. The Completion shall not occur unless all of the obligations specified in Clause 5.3, have been simultaneously complied with and are fully effective.
5.3. On the Completion Datefollowing:
(i) Subject to deductions pursuant to Clause 4.4, the Purchaser shall remit the Purchase Consideration (in immediately available funds) to the Seller’s Bank Account.
(ii) The Seller shall (a) provide to its Depository Participant duly executed DP Instructions the Vendor delivers the relevant instruments of transfer and contract notes in the prescribed form for respect of the transfer of the Sale Shares to duly executed by the Demat Account Vendor in favour of the Purchaser (details or such other nominee(s) as the Purchaser may direct and such other documents as may be required to give a good and effective transfer of which shall be provided title to the Seller in writing as soon as practicable after the Execution Date); (b) procure its Depository Participant to duly acknowledge such DP Instructions; (c) deliver a copy of such acknowledgement to the Purchaser; and (d) use best endeavours to procure credit of the Sale Shares to the Demat Account Purchaser or such nominee(s) and to enable the Purchaser or such nominee(s) to become the registered and beneficial holder thereof free from all Encumbrances to the Purchaser’s satisfaction;
(b) the Vendor delivers definitive share certificates in respect of the Purchaser.Sale Shares and other evidence as may be required by the Purchaser showing that the Vendor is the beneficial owner of the number of Sale Shares free from all Encumbrances;
(c) the Company delivers copies, certified as true and complete by a director of the Company, of resolutions of the shareholders meeting/board of directors approving the matters as stipulated in Clause 5.3;
(d) the Company delivers in respect of the Company:
(i) all statutory records and minute books (which shall be written up to date as at Completion), all unissued share certificates (if any) and all other statutory records then;
(ii) all common seals and all rubber stamps, cheque books, cheque stubs and bank statements, receipt books, all current insurance policies, books and accounts and title deeds and evidence of ownerships to all assets and all current contracts and all other accounting records;
(iii) The Seller shall, copies of all tax returns and assessments (receipted where the due dates for payment fell on or before the Completion Date);
(iv) execution of employment contracts in a form satisfactory to the extent it is able Purchaser, at its sole discretion, for the executive management staff for the Company for a period of at least one year after the Completion Date;
(v) all correspondence and other documents belonging to do the Company (including its constitutional documents); and provided that, if the Purchaser so through exercise agrees, delivery of its voting rightsall documents and records referred to in this Clause 5.2(d) shall be deemed to have been effected where they are situated in premises and shall continue to be in the sole occupation of the respective companies in the Company following Completion or otherwise in the custody of persons who shall remain officers and/or employees of the Company following Completion; and
(e) the June 30, 2020 Accounts (which shall not have any deviation from the Accounts as contained in Schedule 2).
5.3 On Completion, the Company shall procure that a Board meeting is held of the shareholders/directors (as appropriate) of the Company at which the following business such matters shall be transacteddealt with and resolved upon as the Purchaser shall require for the purposes of giving effect to the provisions of this Agreement including:
(a) record the appointment Sale Shares in the name of directors nominated by the Purchaser on in the Board shall be approvedCompany’s share register; and
(b) an extra-ordinary general meeting amending the memorandum and articles of the shareholders association of the Company to approve the matters set out in Clause 5.3(iii)(a) and the amendment of the Articles of Association shall be convened.
5.4. This Agreement as may be terminated on or required by the Purchaser in writing prior to the Completion Date Completion.
5.4 Against performance of the obligations by the Vendor and or the Company (as followsthe case may be) under Clauses 5.2 and 5.3 above, the Purchaser shall:
(ia) By cause to be delivered to the mutual written consent Vendor the Consideration Shares to be registered in the name of the Vendor or its nominee, on the book of the Purchaser and by the SellerPurchaser’s transfer agent ; and
(b) deliver to the Vendor a certified copy of the directors’ resolutions of the Purchaser approving this Agreement.
(ii) By 5.5 If the SellerVendor or the Company, upon written notice as appropriate, shall fail to do anything required to be done by them under Clauses 5.2 and 5.3, without prejudice to any other right or remedy available to the Purchaser, if the conditions set out in Clauses 3.1 and 3.3 have not been satisfied (or satisfied subject only to Completion where applicable) or waived (where applicable) on or before 270 (two hundred seventy) days from the Execution Date or such later date as may be mutually agreed between the Parties in writing (“Long Stop Date”); provided that the Seller shall not be entitled to terminate this Agreement pursuant to this Clause 5.4(ii) if Seller’s breach of this Agreement has prevented or materially delayed the consummation of the Transactions (which term for the purposes of this Clause 5.4(ii) shall not include the Financing);Purchaser may:
(iiia) By defer Completion to a day not later than 14 days after the Purchaser, upon written notice to the Seller, if the conditions set out in Clauses 3.2 date fixed for Completion (and 3.3 have not been satisfied (or satisfied subject only to Completion where applicable) or waived (where applicable) on or before the Long Stop Date; provided that the Purchaser shall not be entitled to terminate this Agreement pursuant to this Clause 5.4(iii) if Purchaser’s breach of this Agreement has prevented or materially delayed the consummation of the Transactions.
(iv) By the Seller (if the Seller is not in material breach of the Seller Warranties, covenants or agreements under this Agreement so as to cause any of the conditions set forth in Clause 3.2 and/or 3.3(i) not to be satisfied), upon written notice to the Purchaser, if there has been a material inaccuracy of any statement or warranty, or any unremedied material breach of a covenant or other agreement, of the Purchaser contained in this Agreement, which violation, breach or inaccuracy would cause any of the conditions set forth in Clause 3.1 and/or 3.3 not to be satisfied as of the Completion Date, and such violation, breach or inaccuracy has not been waived by the Seller or cured by the Purchaser within 20 (twenty) Business Days after receipt by the Purchaser of written notice thereof from the Seller or is not reasonably capable of being cured prior to the Long Stop Date.
(v) By the Purchaser (if the Purchaser is not in material breach of the Purchaser Warranties, covenants or agreements under this Agreement so as to cause any of the conditions set forth in Clause 3.1 and/or 3.3 not to be satisfied), upon written notice to the Seller, if there has been a material inaccuracy of any statement or warranty, or any unremedied material breach of a covenant or other agreement, of the Seller contained in this Agreement, which violation, breach or inaccuracy would cause any of the conditions set forth in Clauses 3.2 and/or 3.3(i) not to be satisfied as of the Completion Date, and such violation, breach or inaccuracy has not been waived by the Purchaser or cured by the Seller within 20 (twenty) Business Days after receipt by the Seller of written notice thereof from the Purchaser or is not reasonably capable of being cured prior to the Long Stop Date.
(vi) By the Seller or the Purchaser, upon written notice to the other, if a court of competent jurisdiction or any other Governmental Authority shall have issued a final, non-appealable order preventing or otherwise prohibiting the consummation of the Transactions.
5.5. If this Agreement is terminated prior to Completion in accordance with Clause 5.4 above,
(i) this Agreement shall become void and of no further force and effect; provided, however, that the provisions of this Clause 5.5 paragraph (a) shall apply to Completion as so deferred); or
(b) proceed to Completion so far as practicable but without prejudice to the Purchaser's rights to the extent that the Vendor shall not have complied with their obligations; or
(c) rescind this Agreement without liability on its part.
5.6 The parties to the Agreement confirm and agree that Clauses 1 (Definitions and Interpretation), 6 to 11 (Announcements and Confidentiality), 12 (Notices), 13 (Governing Law, Disputes and Jurisdiction), 14.1 (Entire Agreement), 14.6 (Variation), 14.7 (No Assignment), 14.8 (Waiver), 14.9 (Severability), 14.10 (Supersession) and 14.11 (Expenses) shall survive the termination of this Agreement indefinitely and that nothing herein shall relieve any Party from any liability for fraud or any breach of the provisions of this Agreement prior to such termination; and
(ii) if applicable, the Observer shall no longer be entitled to attend the meetings of the Board (or any committee thereof) and the nominees of the Purchaser appointed on the Board in accordance with Clause 6.2 shall resign with immediate effectCompletion.
Appears in 2 contracts
Sources: Shareholder Agreement (Integrated Media Technology LTD), Shareholder Agreement (Integrated Media Technology LTD)
Completion. 5.1. Subject to the conditions set out in Clauses 3.1, 3.2 and 3.3, 7.1 Completion shall take place at the head offices of the Company in Istanbul, Turkey at 11:00 a.m. on the Completion Date.
5.2. The obligations of each of 7.2 At Completion the Parties under Clause 5.3 below are interdependent of each other. The Completion shall not occur unless all of the obligations specified in Clause 5.3, have been simultaneously complied with and are fully effective.
5.3. On the Completion Date:
(i) Subject to deductions pursuant to Clause 4.4, the Purchaser shall remit the Purchase Consideration (in immediately available funds) to the Seller’s Bank Account.
(ii) The Seller shall (a) provide to its Depository Participant duly executed DP Instructions in the prescribed form for the transfer of the Sale Shares to the Demat Account of the Purchaser (details of which shall be provided to the Seller in writing as soon as practicable after the Execution Date); (b) procure its Depository Participant to duly acknowledge such DP Instructions; (c) deliver a copy of such acknowledgement to the Purchaser; and (d) use best endeavours to procure credit of the Sale Shares to the Demat Account of the Purchaser.
(iii) The Seller shall, to the extent it is able to do so through exercise of its voting rights, procure that a Board meeting is held at which the following business shall be transacted:
(a) the appointment of directors nominated by the Purchaser on the Board shall be approved; and
(b) an extra-ordinary general meeting of the shareholders of the Company to approve the matters set out in Clause 5.3(iii)(a) and the amendment of the Articles of Association shall be convened.
5.4. This Agreement may be terminated on or prior to the Completion Date as follows:
(i) By the mutual written consent benefit of the Purchaser and the Seller.
Dogus) do those things listed in Part A (ii) By Transfer obligations), in so far as applicable to the Seller, upon written notice and in Part B (Seller’s obligations) of Schedule 2 (Completion arrangements) and the Purchaser shall do those things listed in Part A (Transfer obligations), in so far as applicable to the Purchaser, if and Part C (Purchaser’s obligations) of Schedule 2 (Completion arrangements). Completion shall take place in accordance with Part D (General) of Schedule 2 (Completion arrangements).
7.3 Neither the conditions set out in Clauses 3.1 and 3.3 have not been satisfied (or satisfied subject only to Completion where applicable) or waived (where applicable) on or before 270 (two hundred seventy) days from the Execution Date or such later date as may be mutually agreed between the Parties in writing (“Long Stop Date”); provided that Purchaser nor the Seller shall not be entitled obliged to terminate this Agreement pursuant to this Clause 5.4(ii) if Seller’s breach of this Agreement has prevented or materially delayed complete the consummation sale and purchase of the Transactions (which term for Shares unless the purposes sale and purchase of this Clause 5.4(ii) shall not include all the Financing);
(iii) By the Purchaser, upon written notice to the Seller, if the conditions set out in Clauses 3.2 and 3.3 have not been satisfied (or satisfied subject only to Completion where applicable) or waived (where applicable) on or before the Long Stop Date; provided that the Purchaser shall not be entitled to terminate this Agreement pursuant to this Clause 5.4(iii) if Purchaser’s breach of this Agreement has prevented or materially delayed the consummation of the Transactions.
(iv) By the Seller (if the Seller is not in material breach of the Seller Warranties, covenants or agreements Shares under this Agreement so and all the Shares (as to cause any that term is defined in the Dogus SPA) under the Dogus SPA are completed simultaneously.
7.4 The Seller shall procure that the Dogus Shareholders’ Agreement shall terminate with effect from the last of the conditions set forth in Clause 3.2 and/or 3.3(i) not steps that has to be satisfied), upon written notice to the Purchaser, if there has been a material inaccuracy of any statement or warranty, or any unremedied material breach of a covenant or other agreement, of the Purchaser contained in this Agreement, which violation, breach or inaccuracy would cause any of the conditions set forth in Clause 3.1 and/or 3.3 not to be satisfied as of the Completion Date, and such violation, breach or inaccuracy has not been waived by the Seller or cured by the Purchaser within 20 (twenty) Business Days after receipt by the Purchaser of written notice thereof from the Seller or is not reasonably capable of being cured taken prior to the Long Stop Date.
(v) By occurrence of Completion having been taken. With effect from Completion, the Purchaser (if the Purchaser is not in material breach of the Purchaser Warranties, covenants or agreements under this Agreement so as to cause any of the conditions set forth in Clause 3.1 and/or 3.3 not to be satisfied), upon written notice to the Seller, if there has been a material inaccuracy of any statement or warranty, or any unremedied material breach of a covenant or other agreement, of the Seller contained in this Agreement, which violation, breach or inaccuracy would cause any of the conditions set forth in Clauses 3.2 and/or 3.3(i) not to be satisfied as of the Completion Date, and such violation, breach or inaccuracy has not been waived by the Purchaser or cured by the Seller within 20 (twenty) Business Days after receipt by the Seller of written notice thereof from the Purchaser or is not reasonably capable of being cured prior to the Long Stop Date.
(vi) By the Seller or the Purchaser, upon written notice to the other, if a court of competent jurisdiction or any other Governmental Authority shall have issued a final, non-appealable order preventing or otherwise prohibiting the consummation of the Transactions.
5.5. If this Agreement is terminated prior to Completion in accordance with Clause 5.4 above,
(i) this New Shareholders’ Agreement shall become void and of no further come into full force and effect.
7.5 If the respective obligations of:
(A) the Seller and/or the Purchaser under sub-clauses 5.3, 5.4 and 7.2 and Schedule 2 (Completion arrangements); providedor
(B) Dogus or the Purchaser under sub-clauses 5.3, however5.4 and 7.2 and Schedule 2 (Completion arrangements) of the Dogus SPA, are not complied with on the Completion Date the non-defaulting party may:
(C) defer Completion (so that the provisions of this Clause 5.5 and Clauses 1 7 shall apply to Completion as so deferred); or
(Definitions and Interpretation), 11 D) proceed to Completion as far as practicable (Announcements and Confidentiality), 12 (Notices), 13 (Governing Law, Disputes and Jurisdiction), 14.1 (Entire without limiting its rights under this Agreement), 14.6 ; or
(Variation), 14.7 (No Assignment), 14.8 (Waiver), 14.9 (Severability), 14.10 (SupersessionE) and 14.11 (Expenses) shall survive the termination of terminate this Agreement indefinitely by notice in writing to the other party.
7.6 For the purposes of sub-clause 7.5, the non-defaulting party shall also include Dogus if it has complied with its obligations under sub-clause 5.3, 5.4 and 7.2 and Schedule 2 (Completion Arrangements) of the Dogus SPA. In the event that nothing herein there is more than one non-defaulting party, such non-defaulting parties shall relieve agree what action to take in accordance with sub-clause 7.5 and, if such non-defaulting parties fail to reach an agreement, this Agreement shall terminate in accordance with sub-clause 7.5(E).
7.7 If this Agreement is terminated in accordance with sub-clause 7.5 (and without limiting any Party party’s right to claim damages from any liability the other in respect thereof):
(A) all obligations of the Parties shall end (except for fraud or any breach of the provisions of this Agreement prior Clauses 17 (Announcements) and 18 (Confidentiality)) but (for the avoidance of doubt) all rights and liabilities of the parties which have accrued before termination shall continue to such terminationexist;
(B) in circumstances in which the termination has resulted solely from the Purchaser’s failure to fulfil its obligations under sub-clauses 7.2 and Schedule 2 (Completion arrangements), the Purchaser will indemnify the Seller (and Dogus) on demand on an after-Tax basis for all costs and expenses reasonably incurred by the Seller (and Dogus); and
(iiC) if applicablein circumstances in which the termination has resulted solely from the failure of the Seller to fulfil its obligations under sub-clause 7.2 and Schedule 2 (Completion arrangements), the Observer Seller will indemnify the Purchaser (and Dogus) on demand on an after-Tax basis for all costs and expenses reasonably incurred by the Purchaser (and Dogus).
7.8 Following Completion, the Purchaser shall no longer be entitled make (or procure the Company to attend the meetings make) any notifications of the Board (transfer of the Shares as may be required by law or any committee thereof) regulation and the nominees of Seller shall provide such assistance as the Purchaser appointed on the Board may reasonably require in accordance with Clause 6.2 shall resign with immediate effectmaking such notifications.
Appears in 2 contracts
Sources: Share Purchase Agreement, Share Purchase Agreement (Banco Bilbao Vizcaya Argentaria, S.A.)
Completion. 5.14.1. Subject to Upon and with effect from the conditions set out in Clauses 3.1Execution Date, 3.2 the parties acknowledge and 3.3, Completion shall take place on agree that the Completion Date.
5.2. The obligations of each of the Parties under Clause 5.3 below are interdependent of each other. The Completion shall not occur unless all of the obligations specified in Clause 5.3, Execution Conditions have been simultaneously complied with satisfied or waived in full and are fully effective.
5.3. On the Completion Date:
that subject to (i) Subject clauses 4.2 to deductions pursuant to Clause 4.4, the Purchaser shall remit the Purchase Consideration 4.3 (in immediately available fundsinclusive) to the Seller’s Bank Account.
and (ii) The Seller shall the satisfaction (aor waiver) provide to its Depository Participant duly executed DP Instructions in the prescribed form for the transfer of the Sale Funding Conditions, each Investor subscribing for New Shares and a Warrant pursuant to clause 3.1 shall, on or prior to the Demat Account Longstop Date, pay the sum set out against its name in column 4 of the Purchaser table in clause 3.1 (details of which shall be provided being the aggregate Subscription Price for its New Shares and Warrant), by electronic funds transfer to the Seller in writing as soon as practicable after the Execution Date); (b) procure its Depository Participant to duly acknowledge such DP Instructions; (c) deliver a copy of such acknowledgement to the Purchaser; and (d) use best endeavours to procure credit bank account of the Sale Shares to Company as set out below and payment made in accordance with this clause 4.1 shall constitute a good discharge for such Investor of its obligations under this clause 4.1: Account name : [***] Accountholder address : [***] Bank : [***] USD Account : [***] USD IBAN : [***] SWIFTCODE : [***]
4.2. Upon receipt by the Demat Account Company of subscription monies equalling the total set forth in column 4 of the Purchaser.
table in clause 3.1 (iii) The Seller shallbeing an aggregate Subscription Price of $20,000,000, to or such lesser amount as agreed between the extent it is able to do so through exercise of its voting rightsCompany and the Lead Investor, procure that a Board meeting is held at which the following business shall be transacted“Subscription Threshold”), paid in accordance with clause 4.1 from:
(a) the appointment of directors nominated by the Purchaser on the Board shall be approvedLead Investor; and
(b) an extra-ordinary general meeting each other Investor, the Company shall issue the New Shares and Warrants listed in the table in clause 3.1 to each Investor whose subscription monies have been received by the Company, credited as fully paid and enter its name in the register of members in respect of such New Shares and Warrants (“Completion”).
4.3. Without prejudice to all other rights and remedies available to the shareholders parties, including the right to bring a claim for breach of contract:
(a) if the Subscription Threshold is not satisfied by the Longstop Date (other than by reason of a failure by the Company to approve satisfy the matters set out in Clause 5.3(iii)(aFunding Conditions), the Company shall be entitled to determine that this agreement shall terminate with effect from such determination (or such other specified date) and the amendment of the Articles of Association parties shall be convened.
5.4. This Agreement may be terminated on have no further rights or prior to the Completion Date as follows:
(i) By the mutual written consent of the Purchaser and the Seller.
(ii) By the Seller, upon written notice to the Purchaser, if the conditions set out in Clauses 3.1 and 3.3 have not been satisfied (or satisfied subject only to Completion where applicable) or waived (where applicable) on or before 270 (two hundred seventy) days from the Execution Date or such later date as may be mutually agreed between the Parties in writing (“Long Stop Date”); provided that the Seller shall not be entitled to terminate this Agreement pursuant to this Clause 5.4(ii) if Seller’s breach of this Agreement has prevented or materially delayed the consummation of the Transactions (which term for the purposes of this Clause 5.4(ii) shall not include the Financing);
(iii) By the Purchaser, upon written notice to the Seller, if the conditions set out in Clauses 3.2 and 3.3 have not been satisfied (or satisfied subject only to Completion where applicable) or waived (where applicable) on or before the Long Stop Date; provided that the Purchaser shall not be entitled to terminate this Agreement pursuant to this Clause 5.4(iii) if Purchaser’s breach of this Agreement has prevented or materially delayed the consummation of the Transactions.
(iv) By the Seller (if the Seller is not in material breach of the Seller Warranties, covenants or agreements obligations under this Agreement so as to cause any of the conditions set forth in Clause 3.2 and/or 3.3(i) not to be satisfied), upon written notice to the Purchaser, if there has been a material inaccuracy of any statement or warranty, or any unremedied material breach of a covenant or other agreement, of the Purchaser contained in this Agreement, which violation, breach or inaccuracy would cause any of the conditions set forth in Clause 3.1 and/or 3.3 not to be satisfied as of the Completion Date, other than accrued rights and such violation, breach or inaccuracy has not been waived by the Seller or cured by the Purchaser within 20 (twenty) Business Days after receipt by the Purchaser of written notice thereof from the Seller or is not reasonably capable of being cured prior to the Long Stop Date.
(v) By the Purchaser (if the Purchaser is not in material breach of the Purchaser Warranties, covenants or agreements under this Agreement so as to cause any of the conditions set forth in Clause 3.1 and/or 3.3 not to be satisfied), upon written notice to the Seller, if there has been a material inaccuracy of any statement or warranty, or any unremedied material breach of a covenant or other agreement, of the Seller contained in this Agreement, which violation, breach or inaccuracy would cause any of the conditions set forth in Clauses 3.2 and/or 3.3(i) not to be satisfied as of the Completion Date, and such violation, breach or inaccuracy has not been waived by the Purchaser or cured by the Seller within 20 (twenty) Business Days after receipt by the Seller of written notice thereof from the Purchaser or is not reasonably capable of being cured prior to the Long Stop Date.
(vi) By the Seller or the Purchaser, upon written notice to the other, if a court of competent jurisdiction or any other Governmental Authority shall have issued a final, non-appealable order preventing or otherwise prohibiting the consummation of the Transactions.
5.5. If this Agreement is terminated prior to Completion in accordance with Clause 5.4 above,
(i) this Agreement shall become void and of no further force and effect; provided, however, obligations at that the provisions of this Clause 5.5 and Clauses 1 (Definitions and Interpretation), 11 (Announcements and Confidentiality), 12 (Notices), 13 (Governing Law, Disputes and Jurisdiction), 14.1 (Entire Agreement), 14.6 (Variation), 14.7 (No Assignment), 14.8 (Waiver), 14.9 (Severability), 14.10 (Supersession) and 14.11 (Expenses) shall survive the termination of this Agreement indefinitely and that nothing herein shall relieve any Party from any liability for fraud or any breach of the provisions of this Agreement prior to such terminationtime; and
(iib) without prejudice to clause 4.3(a), if applicable, an Investor (other than the Observer shall no longer be entitled to attend the meetings of the Board (or any committee thereofLead Investor) and the nominees of the Purchaser appointed on the Board does not pay its subscription monies in accordance with Clause 6.2 clause 4.1 by the Longstop Date, the Company and the Lead Investor shall resign with immediate effectbe jointly entitled to determine that such Investor who has failed to pay its subscription monies shall be deemed not to have made any application for New Shares or Warrants under this agreement (but without prejudice to the applications made by any other Investors under this agreement) and upon such determination this agreement shall be deemed varied, without the consent of any other party, or action required, so as to remove all references to such Investor who has failed to pay its subscription monies (who shall cease to be a party to this agreement) and to make any associated changes.
4.4. Within two (2) Business Days following Completion, the Company shall deliver to each Investor who has completed their subscription for New Shares and a Warrant a capitalisation table of the Company as of Completion including details of all: (i) issued Shares; (ii) options, both allocated and unallocated under the Share Incentive Plan(s) (if any); (iii) warrants (including the Warrants); and (iv) any and all other rights to subscribe for shares or convertible securities, if any.
Appears in 2 contracts
Sources: Subscription Agreement (Maywood Acquisition Corp.), Subscription Agreement (Maywood Acquisition Corp.)
Completion. 5.1. 6.1 Subject to the conditions set out in Clauses 3.1, 3.2 and 3.3, as hereinafter provided Completion shall take place in China on the Completion DateDate between the hours of 9:00 a.m. to 5.00 p.m. or at such other place and between such other hours as may be agreed between the parties hereto.
5.2. The obligations of each 6.2 On Completion the Vendor and the BVI Company shall deliver and produce to the Purchaser :-
(a) duly executed transfers and contract notes of the Parties under Clause 5.3 below are interdependent of each other. The Completion shall not occur unless all Sale Share in favour of the obligations specified Purchaser and/or such person(s) as the Purchaser may direct or nominate, accompanied by the relative share certificates in Clause 5.3respect of the Sale Share;
(b) such waivers and/or consents and/or resolutions (whether members' or directors') as the Purchaser may require duly signed by members and/or directors;
(c) such shares or any documents of the BVI Company as the Purchaser may require to enable the Purchaser and/or its representative or nominee to be registered as holders of the Sale Share;
(d) written resolutions of the members and/or of the directors of the BVI Company and of Vendor (as the Purchaser may require) approving and/or ratifying the entering into of this Agreement and the due performance thereof;
(e) such written evidence as may be reasonably satisfactory to the Purchaser to prove that the directors of the BVI Company have, have been simultaneously complied with before the signing of this Agreement duly made, and are fully effective.will, before and on Completion, duly make full disclosure of their respective interests in, of or in relation to this Agreement or the transaction herein contemplated pursuant to the Law, the Articles of Association of the BVI Company, and otherwise;
5.3. On (f) the Completion Dateoriginals as well as duly certified copies of the board resolutions of the then existing directors :-
(i) Subject revoking all existing authorities to deductions pursuant to Clause 4.4, bankers in respect of the operation of its bank accounts and giving authority in favour of such persons as the Purchaser shall remit the Purchase Consideration (in immediately available funds) may nominate to the Seller’s Bank Account.operate such accounts;
(ii) The Seller shall appointing such persons (awithin the maximum number permitted by the Articles of Association) provide to its Depository Participant duly executed DP Instructions in as the prescribed form for Purchaser may nominate as directors; and
(iii) approving the transfer registration of the share transfers of the Sale Shares subject to the Demat Account same being duly stamped;
(g) the Existing Management Accounts which must show full compliance with the terms and conditions of this Agreement;
(h) the statutory books of the Purchaser (details of BVI Company which shall must be provided duly completed and written up to the Seller in writing as soon as practicable after the Execution Date); (b) procure its Depository Participant to duly acknowledge such DP Instructions; (c) deliver a copy of such acknowledgement to the Purchaser; and (d) use best endeavours to procure credit of the Sale Shares to the Demat Account of the Purchaser.
(iii) The Seller shall, to the extent it is able to do so through exercise of its voting rights, procure that a Board meeting is held at which the following business shall be transacted:
(a) the appointment of directors nominated by the Purchaser on the Board shall be approved; and
(b) an extra-ordinary general meeting of the shareholders of the Company to approve the matters set out in Clause 5.3(iii)(a) and the amendment of the Articles of Association shall be convened.
5.4. This Agreement may be terminated on or prior to the Completion Date as follows:date;
(i) By the mutual written consent all books, accounts, papers and records of the Purchaser and the Seller.
(ii) By the Seller, upon written notice to the Purchaser, if the conditions set out in Clauses 3.1 and 3.3 have not been satisfied (or satisfied subject only to Completion where applicable) or waived (where applicable) on or before 270 (two hundred seventy) days from the Execution Date or such later date as may be mutually agreed between the Parties in writing (“Long Stop Date”); provided that the Seller shall not be entitled to terminate this Agreement pursuant to this Clause 5.4(ii) if Seller’s breach of this Agreement has prevented or materially delayed the consummation of the Transactions (which term for the purposes of this Clause 5.4(ii) shall not include the Financing)BVI Company;
(iiij) By the Purchaser, upon written notice resignations of all the then existing directors of BVI Company from their directorships with acknowledgements signed by each of them in a form annexed hereto as APPENDIX 1 to the Sellereffect that they have no claim against the BVI Company for compensation for loss of office, if fees or disbursements or otherwise whatsoever;
(k) the conditions set out in Clauses 3.2 and 3.3 have not been satisfied (or satisfied subject only to Completion where applicable) or waived (where applicable) on or before the Long Stop Date; provided that the Purchaser shall not be entitled to terminate this Agreement pursuant to this Clause 5.4(iii) if Purchaser’s breach of this Agreement has prevented or materially delayed the consummation written resignations of the Transactions.
(iv) By the Seller (if the Seller is not in material breach then existing secretary of the Seller Warranties, covenants or agreements under this Agreement so BVI Company to take effect on the date of Completion with acknowledgements signed by him in a form annexed hereto as to cause any of the conditions set forth in Clause 3.2 and/or 3.3(i) not to be satisfied), upon written notice APPENDIX 1 to the Purchasereffect that he has no claim against the BVI Company for compensation for loss of office, if there has been a material inaccuracy of any statement fees or warranty, or any unremedied material breach of a covenant or other agreement, of the Purchaser contained in this Agreement, which violation, breach or inaccuracy would cause any of the conditions set forth in Clause 3.1 and/or 3.3 not to be satisfied as of the Completion Date, and such violation, breach or inaccuracy has not been waived by the Seller or cured by the Purchaser within 20 (twenty) Business Days after receipt by the Purchaser of written notice thereof from the Seller or is not reasonably capable of being cured prior to the Long Stop Date.
(v) By the Purchaser (if the Purchaser is not in material breach of the Purchaser Warranties, covenants or agreements under this Agreement so as to cause any of the conditions set forth in Clause 3.1 and/or 3.3 not to be satisfied), upon written notice to the Seller, if there has been a material inaccuracy of any statement or warranty, or any unremedied material breach of a covenant or other agreement, of the Seller contained in this Agreement, which violation, breach or inaccuracy would cause any of the conditions set forth in Clauses 3.2 and/or 3.3(i) not to be satisfied as of the Completion Date, and such violation, breach or inaccuracy has not been waived by the Purchaser or cured by the Seller within 20 (twenty) Business Days after receipt by the Seller of written notice thereof from the Purchaser or is not reasonably capable of being cured prior to the Long Stop Date.
(vi) By the Seller or the Purchaser, upon written notice to the other, if a court of competent jurisdiction or any other Governmental Authority shall have issued a final, non-appealable order preventing disbursements or otherwise prohibiting the consummation of the Transactions.
5.5. If this Agreement is terminated prior to Completion in accordance with Clause 5.4 above,
(i) this Agreement shall become void and of no further force and effect; provided, however, that the provisions of this Clause 5.5 and Clauses 1 (Definitions and Interpretation), 11 (Announcements and Confidentiality), 12 (Notices), 13 (Governing Law, Disputes and Jurisdiction), 14.1 (Entire Agreement), 14.6 (Variation), 14.7 (No Assignment), 14.8 (Waiver), 14.9 (Severability), 14.10 (Supersession) and 14.11 (Expenses) shall survive the termination of this Agreement indefinitely and that nothing herein shall relieve any Party from any liability for fraud or any breach of the provisions of this Agreement prior to such termination; and
(ii) if applicable, the Observer shall no longer be entitled to attend the meetings of the Board (or any committee thereof) and the nominees of the Purchaser appointed on the Board in accordance with Clause 6.2 shall resign with immediate effect.whatsoever;
Appears in 2 contracts
Sources: Sale and Purchase of Shares (Kubla Khan Inc), Sale and Purchase of Shares (China Finance, Inc.)
Completion. 5.1. 6.1 Subject to the conditions set out in Clauses 3.1, 3.2 and 3.3Clause 5, Completion shall take place at the offices of the Vendor's Solicitors by not later than 12 noon on the Completion Date.
5.2. The obligations Date when all (unless the parties otherwise agree) of each of the Parties under Clause 5.3 below are interdependent of each other. The Completion shall not occur unless all of the obligations specified in Clause 5.3, have been simultaneously complied with and are fully effective.
5.3. On the Completion Date:
(i) Subject to deductions pursuant to Clause 4.4, the Purchaser shall remit the Purchase Consideration (in immediately available funds) to the Seller’s Bank Account.
(ii) The Seller shall (a) provide to its Depository Participant duly executed DP Instructions in the prescribed form for the transfer of the Sale Shares to the Demat Account of the Purchaser (details of which shall be provided to the Seller in writing as soon as practicable after the Execution Date); (b) procure its Depository Participant to duly acknowledge such DP Instructions; (c) deliver a copy of such acknowledgement to the Purchaser; and (d) use best endeavours to procure credit of the Sale Shares to the Demat Account of the Purchaser.
(iii) The Seller shall, to the extent it is able to do so through exercise of its voting rights, procure that a Board meeting is held at which the following business shall be transacted:
6.1.1 the Vendor shall complete the sale of the Terminals (upon the terms of the Property Conditions Schedules) and the Business and the Assets;
6.1.2 the Purchaser shall pay to the Vendor such sum as is provided for in Clause 4.1;
6.1.3 the Vendor shall pay the Escrow Amount into the Escrow Account (and the Escrow Terms shall then apply thereto) for the repair of tanks 1 and 3 at the Runcorn terminal;
6.1.4 the Vendor shall give possession to the Purchaser of the Terminals and the Assets hereby agreed to be sold;
6.1.5 the Vendor and the Purchaser shall complete the sub-lease of ▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ House, ▇▇▇▇▇▇▇▇▇'▇ Walk, Maidenhead; and
6.1.6 the Vendor shall deliver or make available to the Purchaser:
(a) the appointment of directors nominated by the Purchaser on the Board shall be approved; andBooks and Records;
(b) an extra-ordinary general such of the Assets as are capable of transfer by delivery (it being agreed that such delivery shall take place at the place where they are situated);
(c) the software licences or registered user agreements for those I.T. Systems where the licences or agreements are equipment specific, together with assignments of such licences or agreements for those IT Systems which are subject to assignable licences or agreements, and notices to the licensors for those licences identified as "equipment specific" (in each case as identified on the Schedule of Software Applications in Schedule 18);
(d) duly executed assignments and/or novations of the Key Customer Contracts (and of such other Customer Contracts as may then be available) and consents thereto in the agreed form;
(e) duly executed assignments and/or novations of such of the Supplier Contracts as may then be available;
(f) the documents relating to the Permits described in Column 5 (under the heading "Completion Document") in Schedule 10;
(g) a certified copy of Board resolutions passed at a meeting of the shareholders Vendor's board of directors at which its directors shall have approved the Vendor entering into this Agreement and the agreements and arrangements contemplated under this Agreement;
(h) releases under seal of any Encumbrance to which any of the Company to approve the matters set out in Clause 5.3(iii)(a) and the amendment of the Articles of Association shall be convened.
5.4. This Agreement may be terminated on or prior Assets are subject duly executed by those entitled to the Completion Date as follows:
(i) By the mutual written consent of the Purchaser and the Seller.
(ii) By the Sellerbenefit thereof, upon written notice to the Purchaser, if the conditions set out in Clauses 3.1 and 3.3 have not been satisfied (or satisfied subject only to Completion where applicable) or waived (where applicable) on or before 270 (two hundred seventy) days from the Execution Date or such later date as may be mutually agreed between the Parties in writing (“Long Stop Date”); provided that the Seller shall not be entitled to terminate this Agreement pursuant to this Clause 5.4(ii) if Seller’s breach of this Agreement has prevented or materially delayed the consummation of the Transactions (which term for the purposes of this Clause 5.4(ii) shall not include the Financing);
(iii) By the Purchaser, upon written notice to the Seller, if the conditions set out in Clauses 3.2 and 3.3 have not been satisfied (or satisfied subject only to Completion where applicable) or waived (where applicable) on or before the Long Stop Date; provided that the Purchaser shall not be entitled to terminate this Agreement pursuant to this Clause 5.4(iii) if Purchaser’s breach of this Agreement has prevented or materially delayed the consummation of the Transactions.
(iv) By the Seller (if the Seller is not in material breach of the Seller Warranties, covenants or agreements under this Agreement so as to cause any of the conditions set forth in Clause 3.2 and/or 3.3(i) not to be satisfied), upon written notice to the Purchaser, if there has been a material inaccuracy of any statement or warranty, or any unremedied material breach of a covenant or other agreement, of the Purchaser contained in this Agreement, which violation, breach or inaccuracy would cause any of the conditions set forth in Clause 3.1 and/or 3.3 not to be satisfied as of the Completion Date, and such violation, breach or inaccuracy has not been waived by the Seller or cured by the Purchaser within 20 (twenty) Business Days after receipt by the Purchaser of written notice thereof from the Seller or is not reasonably capable of being cured prior to the Long Stop Date.
(v) By the Purchaser (if the Purchaser is not in material breach of the Purchaser Warranties, covenants or agreements under this Agreement so as to cause any of the conditions set forth in Clause 3.1 and/or 3.3 not to be satisfied), upon written notice to the Seller, if there has been a material inaccuracy of any statement or warranty, or any unremedied material breach of a covenant or other agreement, of the Seller contained in this Agreement, which violation, breach or inaccuracy would cause any of the conditions set forth in Clauses 3.2 and/or 3.3(i) not to be satisfied as of the Completion Date, and such violation, breach or inaccuracy has not been waived by the Purchaser or cured by the Seller within 20 (twenty) Business Days after receipt by the Seller of written notice thereof from the Purchaser or is not reasonably capable of being cured prior to the Long Stop Date.
(vi) By the Seller or the Purchaser, upon written notice to the other, if a court of competent jurisdiction or any other Governmental Authority shall have issued a final, non-appealable order preventing or otherwise prohibiting the consummation of the Transactions.
5.5. If this Agreement is terminated prior to Completion in accordance with Clause 5.4 above,
(i) this Agreement shall become void and of no further force and effect; provided, however, that the provisions of this Clause 5.5 and Clauses 1 (Definitions and Interpretation), 11 (Announcements and Confidentiality), 12 (Notices), 13 (Governing Law, Disputes and Jurisdiction), 14.1 (Entire Agreement), 14.6 (Variation), 14.7 (No Assignment), 14.8 (Waiver), 14.9 (Severability), 14.10 (Supersession) and 14.11 (Expenses) shall survive the termination of this Agreement indefinitely and that nothing herein shall relieve any Party from any liability for fraud or any breach of the provisions of this Agreement prior to such termination; and
(ii) if applicable, the Observer shall no longer be entitled to attend the meetings of the Board (or any committee thereof) and the nominees of the Purchaser appointed on the Board in accordance with Clause 6.2 shall resign with immediate effect.clause 6.1.6
Appears in 2 contracts
Sources: Sale and Purchase Agreement (Kaneb Pipe Line Partners L P), Sale and Purchase Agreement (Kaneb Pipe Line Partners L P)
Completion. 5.18.1. Subject to the conditions set out in Clauses 3.1, 3.2 and 3.3, Completion shall take place on the Completion DateDate at the offices of the Vendor or at such other place as the Purchaser and the Vendor may agree in writing.
5.2. The obligations of each of the Parties under Clause 5.3 below are interdependent of each other. The Completion shall not occur unless all of the obligations specified in Clause 5.3, have been simultaneously complied with and are fully effective.
5.38.2. On the Completion Date:
(i) Subject to deductions pursuant to Clause 4.4Completion, the Purchaser Vendor shall remit the Purchase Consideration (in immediately available funds) deliver or cause to be delivered to the Seller’s Bank Account.
(ii) The Seller shall (a) provide to its Depository Participant duly executed DP Instructions in the prescribed form for the transfer of the Sale Shares to the Demat Account of the Purchaser (details of which shall be provided to the Seller in writing or a Purchaser Designee, as soon as practicable after the Execution Date); (b) procure its Depository Participant to duly acknowledge such DP Instructions; (c) deliver a copy of such acknowledgement to the Purchaser; and (d) use best endeavours to procure credit of the Sale Shares to the Demat Account of the Purchaser.
(iii) The Seller shall, to the extent it is able to do so through exercise of its voting rights, procure that a Board meeting is held at which the following business shall be transactedapplicable:
(a) a copy of the appointment board resolutions of directors nominated the Vendor approving its entry into this Agreement and the sale of the Transferred Assets by the Purchaser on Vendor or any other member of the Board Vendor Group and otherwise the transactions contemplated hereby;
(b) a certificate confirming the satisfaction and fulfilment of the Conditions Precedent listed in paragraphs 1 (to the extent related to the Vendor or any member of Vendor Group) and 3 of Schedule 2;
(c) in the case of the Books and Records, possession thereof as contemplated by Clause 2.5;
(d) a statement setting out the Advance Payments as at the Completion Date;
(e) a statement setting out the Payables and Debts as at the Completion Date;
(f) a USB drive (which shall be approvedaccessible without the need for any password) (the “Dataroom Media”) that contains the true, correct and complete contents of the Dataroom; and, for the avoidance of doubt, shall permit the Purchaser and the applicable Purchaser Designee to continue operating the Maintenance Operations to be sold and transferred under this Agreement.
8.3. On Completion, subject to compliance by the Vendor of its obligations in Clause 8.2, the Purchaser shall:
(a) deliver to the Vendor a copy of the board resolutions of the Purchaser approving its entry into this Agreement and the acquisition of the Transferred Assets from the Vendor or any other member of the Vendor Group and the assumption of the Assumed Liabilities and otherwise authorising the transactions contemplated hereby;
(b) deliver to the Vendor a certificate confirming the satisfaction and fulfilment of the Conditions Precedent listed in paragraph 1 (to the extent related to the Purchaser or any Purchaser Designee) and paragraphs 2 and 4 of Schedule 2;
(c) deliver to the Vendor a copy of the board resolutions of the Purchaser approving and authorizing the allotment and issuance of the OTSAW Shares and the entry of the Vendor in the Purchaser’s electronic register of members in respect thereof and approving and authorising the execution and delivery of a share certificate with respect to the OTSAW Shares to the Vendor;
(d) deliver to the Vendor a copy of the shareholders resolutions of the Purchaser approving and authorizing the allotment and issuance of the OTSAW Shares and waiving any pre-emption rights in respect of the allotment and issue of the OTSAW Shares;
(e) deliver to the Vendor a copy of the board resolutions of the JV Company approving and authorizing the allotment and issuance of the JV Company Shares and the entry of the Vendor in the JV Company’s electronic register of members in respect thereof and approving and authorising the execution and delivery to the Vendor of a share certificate for the JV Company Shares;
(f) deliver to the Vendor a copy of the shareholders resolutions of the JV Company approving and authorizing the allotment and issuance of the JV Company Shares and waiving any pre-emption rights in respect of the allotment and issue of the JV Company Shares; and
(bg) pay to the Vendor the Cash Price and subject to a deduction for an extra-ordinary general meeting amount equivalent to the Advance Payments.
8.4. On Completion, subject to compliance by the Vendor of the shareholders of the Company to approve the matters set out its obligations in Clause 5.3(iii)(a) 8.2 and the amendment Purchaser of its obligations in Clause 8.3, the Articles of Association Parties, its Affiliates or other designees, as applicable, shall be convened.
5.4. This Agreement may be terminated on or prior to enter into the Completion Date as followsfollowing agreements:
(ia) By the mutual written consent of the Purchaser and the Seller.
(ii) By the Seller, upon written notice to the Purchaser, if the conditions set out in Clauses 3.1 and 3.3 have not been satisfied (or satisfied subject only to Completion where applicable) or waived (where applicable) on or before 270 (two hundred seventy) days from the Execution Date or such later date as may be mutually agreed service agreements between the Parties in writing (“Long Stop Date”); provided that the Seller shall not be entitled to terminate this Agreement pursuant to this Clause 5.4(ii) if Seller’s breach of this Agreement has prevented or materially delayed the consummation of the Transactions (which term for the purposes of this Clause 5.4(ii) shall not include the Financing);
(iii) By the Purchaser, upon written notice to the Seller, if the conditions set out in Clauses 3.2 and 3.3 have not been satisfied (or satisfied subject only to Completion where applicable) or waived (where applicable) on or before the Long Stop Date; provided that the Purchaser shall not be entitled to terminate this Agreement pursuant to this Clause 5.4(iii) if Purchaser’s breach of this Agreement has prevented or materially delayed the consummation of the Transactions.
(iv) By the Seller (if the Seller is not in material breach of the Seller Warranties, covenants or agreements under this Agreement so as to cause any of the conditions set forth in Clause 3.2 and/or 3.3(i) not to be satisfied), upon written notice to the Purchaser, if there has been a material inaccuracy of any statement or warranty, or any unremedied material breach of a covenant or other agreement, of the Purchaser contained in this Agreement, which violation, breach or inaccuracy would cause any of the conditions set forth in Clause 3.1 and/or 3.3 not to be satisfied as of the Completion Date, and such violation, breach or inaccuracy has not been waived by the Seller or cured by the Purchaser within 20 (twenty) Business Days after receipt by the Purchaser of written notice thereof from the Seller or is not reasonably capable of being cured prior to the Long Stop Date.
(v) By the Purchaser (if the Purchaser is not in material breach of the Purchaser Warranties, covenants or agreements under this Agreement so as to cause any of the conditions set forth in Clause 3.1 and/or 3.3 not to be satisfied), upon written notice to the Seller, if there has been a material inaccuracy of any statement or warranty, or any unremedied material breach of a covenant or other agreement, of the Seller contained in this Agreement, which violation, breach or inaccuracy would cause any of the conditions set forth in Clauses 3.2 and/or 3.3(i) not to be satisfied as of the Completion Date, and such violation, breach or inaccuracy has not been waived by the Purchaser or cured by the Seller within 20 (twenty) Business Days after receipt by the Seller of written notice thereof from the Purchaser or is not reasonably capable of being cured prior to the Long Stop Date.
(vi) By the Seller or the Purchaser, upon written notice to the other, if a court of competent jurisdiction or any other Governmental Authority shall have issued a final, non-appealable order preventing or otherwise prohibiting the consummation of the Transactions.
5.5. If this Agreement is terminated prior to Completion in accordance with Clause 5.4 above,
(i) this Agreement shall become void and of no further force and effect; provided, however, that the provisions of this Clause 5.5 and Clauses 1 (Definitions and Interpretation), 11 (Announcements and Confidentiality), 12 (Notices), 13 (Governing Law, Disputes and Jurisdiction), 14.1 (Entire Agreement), 14.6 (Variation), 14.7 (No Assignment), 14.8 (Waiver), 14.9 (Severability), 14.10 (Supersession) and 14.11 (Expenses) shall survive the termination of this Agreement indefinitely and that nothing herein shall relieve any Party from any liability for fraud or any breach of the provisions of this Agreement prior to such termination; and
(ii) if applicable, the Observer shall no longer be entitled to attend the meetings of the Board (or any committee thereof) and the nominees of the Purchaser appointed on the Board in accordance with Clause 6.2 shall resign with immediate effect.
Appears in 2 contracts
Sources: Shareholder Agreement (OTSAW LTD), Master Asset Sale Agreement (OTSAW LTD)
Completion. 5.1. Subject to the conditions set out in Clauses 3.1, 3.2 and 3.3, 6.1 Completion shall take place at the offices of AWI’s Solicitors (i) on the last Business Day of the month in which the last of the Conditions has been satisfied in accordance with this Agreement, or (ii) if the last of the Conditions is satisfied less than five (5) Business Days from the end of the month, on the last Business Day of the following month, or (iii) at such other time and venue as may be agreed in writing between the Parties (the “Completion Date”).
6.2 AWI shall notify (or shall procure a Group Company to notify) the Purchaser by e-mail no later than five (5) Business Days prior to the Completion Date of the following (the “Pre-Completion Notification”):
(a) AWI’s good-faith estimate of the Consideration (the “Estimated Consideration”); and
(b) the relevant bank accounts details into which the Consideration is to be paid on the Completion DateDate (the “AWI Account”).
5.2. The obligations of each of the Parties under Clause 5.3 below are interdependent of each other. The Completion shall not occur unless all of the obligations specified in Clause 5.3, have been simultaneously complied with and are fully effective.
5.3. 6.3 On the Completion Date:
(ia) Subject to deductions pursuant to Clause 4.4, the Purchaser shall remit the Purchase Consideration deliver or take (in immediately available funds) or cause to the Seller’s Bank Account.
(ii) The Seller shall (a) provide to its Depository Participant duly executed DP Instructions in the prescribed form for the transfer of the Sale Shares to the Demat Account of the Purchaser (details of which shall be provided to the Seller in writing as soon as practicable after the Execution Date); (b) procure its Depository Participant to duly acknowledge such DP Instructions; (c) deliver a copy of such acknowledgement to the Purchaser; and (d) use best endeavours to procure credit of the Sale Shares to the Demat Account of the Purchaser.
(iii) The Seller shall, to the extent it is able to do so through exercise of its voting rights, procure that a Board meeting is held at which the following business shall be transacted:
(adelivered or taken) the appointment documents and actions listed in Part 1 of directors nominated by the Purchaser on the Board shall be approvedSchedule 7 (Completion); and
(b) an extrasubject to compliance with Clause 6.3(a), AWI shall deliver or take (or cause to be delivered and taken) the documents and actions listed in Part 2 of Schedule 7 (Completion).
6.4 If any foregoing provision of this Clause 6 is not complied with in any material respect, the Purchaser (in the case of non-ordinary general meeting compliance by AWI) or AWI (in the case of non-compliance by the shareholders of the Company to approve the matters set out in Clause 5.3(iii)(aPurchaser) and the amendment of the Articles of Association shall be convened.entitled (in addition to and without prejudice to all other rights or remedies available to it, including the right to claim damages) by written notice to the other Party, served on the Completion Date:
5.4. This Agreement may be terminated on or prior (a) to effect Completion so far as practicable having regard to any defaults which have occurred; or
(b) to fix a new date for Completion not being later than five Business Days following the Completion Date in which case the foregoing provisions of this Clause 6.4 shall apply to the Completion Date as follows:so deferred; or
(ic) By in the mutual written consent case of material non-compliance with Clause 6.3 (which, in the Purchaser case of AWI, shall only arise where AWI has failed to deliver (or procure the delivery of) paragraphs 1.1(a), 1.1(b) or 1.1(c) of Part 2 of Schedule 7 (Completion), and in the Seller.
(ii) By the Seller, upon written notice to case of the Purchaser, if the conditions set out in Clauses 3.1 and 3.3 have not been satisfied (or satisfied subject shall only to Completion arise where applicable) or waived (where applicable) on or before 270 (two hundred seventy) days from the Execution Date or such later date as may be mutually agreed between the Parties in writing (“Long Stop Date”); provided that the Seller shall not be entitled to terminate this Agreement pursuant to this Clause 5.4(ii) if Seller’s breach of this Agreement has prevented or materially delayed the consummation of the Transactions (which term for the purposes of this Clause 5.4(ii) shall not include the Financing);
(iii) By the Purchaser, upon written notice to the Seller, if the conditions set out in Clauses 3.2 and 3.3 have not been satisfied (or satisfied subject only to Completion where applicable) or waived (where applicable) on or before the Long Stop Date; provided that the Purchaser shall not be entitled has failed to terminate this Agreement pursuant to this Clause 5.4(iiipay the Consideration in accordance with paragraph 1.1 of Part 1 of Schedule 7 (Completion)) if Purchaser’s breach of this Agreement has prevented or materially delayed still persisting after the consummation of the Transactions.
(iv) By the Seller (if the Seller is not in material breach of the Seller Warranties, covenants or agreements under this Agreement so as to cause any of the conditions set forth in Clause 3.2 and/or 3.3(i) not to be satisfied), upon written notice to the Purchaser, if there has been a material inaccuracy of any statement or warranty, or any unremedied material breach of a covenant or other agreement, of the Purchaser contained in this Agreement, which violation, breach or inaccuracy would cause any of the conditions set forth in Clause 3.1 and/or 3.3 not to be satisfied as lapse of the Completion Date, and such violation, breach or inaccuracy has not been waived by the Seller or cured by the Purchaser within 20 (twentyDate as deferred pursuant to Clause 6.4(b) Business Days after receipt by the Purchaser of written notice thereof from the Seller or is not reasonably capable of being cured prior to the Long Stop Date.
(v) By the Purchaser (if the Purchaser is not in material breach of the Purchaser Warranties, covenants or agreements under this Agreement so as to cause any of the conditions set forth in Clause 3.1 and/or 3.3 elect not to be satisfied), upon written notice to proceed with the Seller, if there has been a material inaccuracy of any statement or warranty, or any unremedied material breach of a covenant or other agreement, of the Seller contained in this Agreement, which violation, breach or inaccuracy would cause any of the conditions transactions set forth in Clauses 3.2 and/or 3.3(i) not to be satisfied as of the Completion Date, and such violation, breach or inaccuracy has not been waived by the Purchaser or cured by the Seller within 20 (twenty) Business Days after receipt by the Seller of written notice thereof from the Purchaser or is not reasonably capable of being cured prior to the Long Stop Date.
(vi) By the Seller or the Purchaser, upon written notice to the other, if a court of competent jurisdiction or any other Governmental Authority shall have issued a final, non-appealable order preventing or otherwise prohibiting the consummation of the Transactions.
5.5. If this Agreement is terminated prior to Completion in accordance with Clause 5.4 above,
(i) this Agreement shall become void and of no further force and effect; provided, however, that out herein whereupon the provisions of this Clause 5.5 and Clauses 1 (Definitions and Interpretation), 11 (Announcements and Confidentiality), 12 (Notices), 13 (Governing Law, Disputes and Jurisdiction), 14.1 (Entire Agreement), 14.6 (Variation), 14.7 (No Assignment), 14.8 (Waiver), 14.9 (Severability), 14.10 (Supersession) and 14.11 (Expenses) 4.17 shall survive the termination of this Agreement indefinitely and that nothing herein shall relieve any Party from any liability for fraud or any breach of the provisions of this Agreement prior to such termination; and
(ii) if applicable, the Observer shall no longer be entitled to attend the meetings of the Board (or any committee thereof) and the nominees of the Purchaser appointed on the Board in accordance with Clause 6.2 shall resign with immediate effectapply.
Appears in 2 contracts
Sources: Share Purchase Agreement, Share Purchase Agreement (Armstrong World Industries Inc)
Completion. 5.1. Subject to the conditions set out in Clauses 3.1, 3.2 and 3.3, 4.1 Completion under this Agreement shall take place on at the Completion Dateoffices of the Seller at a time agreed by the Parties.
5.2. The obligations of each of the Parties under Clause 5.3 below are interdependent of each other. The Completion shall not occur unless all of the obligations specified in Clause 5.3, have been simultaneously complied with and are fully effective.
5.3. 4.2 On the Completion Date:
(i) Subject to deductions pursuant to Clause 4.4, the Purchaser shall remit the Purchase Consideration (in immediately available funds) to the Seller’s Bank Account.
(ii) The Seller shall (a) provide to its Depository Participant duly executed DP Instructions in the prescribed form for the transfer Date all but not part of the Sale Shares to the Demat Account of the Purchaser (details of which shall be provided to the Seller in writing as soon as practicable after the Execution Date); (b) procure its Depository Participant to duly acknowledge such DP Instructions; (c) deliver a copy of such acknowledgement to the Purchaser; and (d) use best endeavours to procure credit of the Sale Shares to the Demat Account of the Purchaser.
(iii) The Seller shall, to the extent it is able to do so through exercise of its voting rights, procure that a Board meeting is held at which the following business shall be transacted:
(a) the appointment of directors nominated by the 4.2.1 The Purchaser on the Board shall be approved; and
(b) an extra-ordinary general meeting of the shareholders of the Company to approve the matters set out in Clause 5.3(iii)(a) and the amendment of the Articles of Association shall be convened.
5.4. This Agreement may be terminated on or prior to the Completion Date as follows:
(i) By the mutual written consent of the Purchaser and the Seller.
(ii) By the Seller, upon written notice to the Purchaser, if the conditions set out in Clauses 3.1 and 3.3 have not been satisfied (or satisfied subject only to Completion where applicable) or waived (where applicable) on or before 270 (two hundred seventy) days from the Execution Date or such later date as may be mutually agreed between the Parties in writing (“Long Stop Date”); provided that the Seller shall not be entitled to terminate this Agreement pursuant to this Clause 5.4(ii) if Seller’s breach of this Agreement has prevented or materially delayed the consummation of the Transactions (which term for the purposes of this Clause 5.4(ii) shall not include the Financing);
(iii) By the Purchaser, upon written notice shall: pay to the Seller, if or pay in accordance with a direction from an Affiliate to an Affiliate, the conditions set out in Clauses 3.2 and 3.3 have not been satisfied (Consideration as increased or satisfied subject only decreased by the Working Capital Adjustment; deliver to Completion where applicable) or waived (where applicable) on or before the Long Stop Date; provided that the Purchaser shall not be entitled to terminate this Agreement pursuant to this Clause 5.4(iii) if Purchaser’s breach of this Agreement has prevented or materially delayed the consummation of the Transactions.
(iv) By the Seller (to the extent not already delivered prior to Completion) a copy of the releases, consents, approvals, confirmations or waivers, if any, referred to in Clause 2.2 and obtained by or on behalf of the Purchaser; deliver to the Seller (to the extent not already delivered prior to Completion) a copy, certified as a true copy and in full force and effect by a director or the legal manager of the Purchaser, of (i) a resolution of the board of directors of the Purchaser authorising its entry into the transactions contemplated by this Agreement; and, if relevant, (ii) a Power of Attorney authorising a person or persons to sign this Agreement and the Assignment Documents on behalf of the Purchaser; execute and deliver those of the Assignment Documents to which it is a signatory; and perform such other actions and execute such other documents as may be required to transfer the Other Interests to it.
4.2.2 The Seller shall, after confirmation of receipt of the amounts payable under Clause 4.2.1(a), deliver to the Purchaser (to the extent not already delivered prior to Completion): the Assignment Documents duly executed by all the Relevant Third Parties other than the Purchaser; a copy of other releases, consents, approvals, confirmations or waivers, if any, referred to in material breach Clause 2.2 and obtained by or on behalf of the Seller; a copy, certified as a true copy and in full force and effect by a director or the legal manager of the Seller, of (i) a resolution of the board of directors of the Seller Warrantiesauthorising its entry into the transactions contemplated by this Agreement; and, covenants if relevant, (ii) a Power of Attorney authorising a person or agreements under persons to sign this Agreement so as to cause any and the Assignment Documents on behalf of the conditions set forth in Clause 3.2 and/or 3.3(i) not Seller; and perform such other actions and execute such other documents as the Purchaser may reasonably require, to be satisfied), upon written notice transfer the Other Interests to the Purchaser, if there has been a material inaccuracy of any statement or warranty, or any unremedied material breach of a covenant or other agreement, of .
4.2.3 Title to the Purchaser contained in this Agreement, which violation, breach or inaccuracy would cause any of Interests and the conditions set forth in Clause 3.1 and/or 3.3 not to be satisfied as of the Completion Date, and such violation, breach or inaccuracy has not been waived by the Seller or cured by the Purchaser within 20 (twenty) Business Days after receipt by the Purchaser of written notice thereof Other Interests shall pass from the Seller or is not reasonably capable of being cured prior to the Long Stop DatePurchaser upon Completion.
(v) By the Purchaser (if the Purchaser is not in material breach of the Purchaser Warranties, covenants or agreements under this Agreement so as to cause any of the conditions set forth in Clause 3.1 and/or 3.3 not to be satisfied), upon written notice to the Seller, if there has been a material inaccuracy of any statement or warranty, or any unremedied material breach of a covenant or other agreement, of the Seller contained in this Agreement, which violation, breach or inaccuracy would cause any of the conditions set forth in Clauses 3.2 and/or 3.3(i) not to be satisfied as of the Completion Date, and such violation, breach or inaccuracy has not been waived by the Purchaser or cured by the Seller within 20 (twenty) Business Days after receipt by the Seller of written notice thereof from the Purchaser or is not reasonably capable of being cured prior to the Long Stop Date.
(vi) By the Seller or the Purchaser, upon written notice to the other, if a court of competent jurisdiction or any other Governmental Authority shall have issued a final, non-appealable order preventing or otherwise prohibiting the consummation of the Transactions.
5.5. If this Agreement is terminated prior to Completion in accordance with Clause 5.4 above,
(i) this Agreement shall become void and of no further force and effect; provided, however, that the provisions of this Clause 5.5 and Clauses 1 (Definitions and Interpretation), 11 (Announcements and Confidentiality), 12 (Notices), 13 (Governing Law, Disputes and Jurisdiction), 14.1 (Entire Agreement), 14.6 (Variation), 14.7 (No Assignment), 14.8 (Waiver), 14.9 (Severability), 14.10 (Supersession) and 14.11 (Expenses) shall survive the termination of this Agreement indefinitely and that nothing herein shall relieve any Party from any liability for fraud or any breach of the provisions of this Agreement prior to such termination; and
(ii) if applicable, the Observer shall no longer be entitled to attend the meetings of the Board (or any committee thereof) and the nominees of the Purchaser appointed on the Board in accordance with Clause 6.2 shall resign with immediate effect.
Appears in 2 contracts
Sources: Hive Out Agreement, Hive Out Agreement (Endeavour International Corp)
Completion. 5.1. Subject 5.1 On a date to be nominated by the conditions Purchaser, being not later than five Business Days following the date on which the last of the Conditions has been satisfied or (if applicable) waived (other than those Conditions that by their nature are to be satisfied at Completion, including the Conditions set out in Clauses 3.1clauses 3.1(d)(iii) and (iv), 3.2 but subject to the satisfaction or waiver of those conditions at Completion), or on such other date as the parties may agree in writing, completion of the sale and 3.3, Completion purchase of the Shares (“Completion”) shall take place at the offices of Debevoise & ▇▇▇▇▇▇▇▇ LLP, Tower ▇▇, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇ or such other place or time as the parties may agree in writing (the date on which Completion takes place being the “Completion Date”).
5.2. The obligations of each of 5.2 As soon as reasonably practicable following the Parties under Clause 5.3 below are interdependent of each other. The Completion shall not occur unless date on which all of the obligations specified in Clause 5.3Conditions set out at clauses 3.1(a), (b), (c) and (d)(i) have been simultaneously complied satisfied, Prudential shall arrange with the court a date for the hearing at which it will seek the sanction of the court to the Scheme of Arrangement and are fully effective.
5.3the confirmation of the court to the Prudential Reduction of Capital (the “Court Sanction Date”). On the Completion Date:
(i) Subject to deductions pursuant to Clause 4.4Upon arranging such date, the Purchaser shall remit the Purchase Consideration (in immediately available funds) promptly give notice to the Seller’s Bank AccountParent of such date.
(ii) 5.3 The Seller shall (a) provide to its Depository Participant duly executed DP Instructions in Purchaser and the prescribed form for the transfer of the Sale Shares to the Demat Account of the Purchaser (details of which shall be provided to the Seller in writing as soon as practicable after the Execution Date); (b) procure its Depository Participant to duly acknowledge such DP Instructions; (c) deliver a copy of such acknowledgement to the Purchaser; and (d) use best endeavours to procure credit of the Sale Shares to the Demat Account of the Purchaser.
(iii) The Seller shall, prior to the extent it is able Court Sanction Date, agree to do so through exercise appropriate mechanics regarding the documents to be delivered pursuant to Schedule 3 such that the court will be prepared to sanction the Scheme of its voting rightsArrangement and the Prudential Reduction of Capital.
5.4 The Purchaser and the Seller respectively shall ensure that the instrument of transfer and bought notes and the sold notes referred to in paragraphs 1(a), procure that a Board meeting is held at which 1(b) and 5(a) of Schedule 3 shall not be executed in Hong Kong.
5.5 At Completion, the following business parties shall be transacted:
comply with their respective obligations in Schedule 3 (aCompletion Arrangements) in accordance with the appointment of directors nominated by the Purchaser on the Board shall be approved; and
(b) an extra-ordinary general meeting of the shareholders of the Company to approve the matters timeframes set out in Clause 5.3(iii)(a) that schedule.
5.6 Each party acknowledges and the amendment agrees that following Completion, none of the Articles of Association parties shall be convened.
5.4. This Agreement may be terminated on or prior to the Completion Date as follows:
(i) By the mutual written consent of the Purchaser and the Seller.
(ii) By the Seller, upon written notice to the Purchaser, if the conditions set out in Clauses 3.1 and 3.3 have not been satisfied (or satisfied subject only to Completion where applicable) or waived (where applicable) on or before 270 (two hundred seventy) days from the Execution Date or such later date as may be mutually agreed between the Parties in writing (“Long Stop Date”); provided that the Seller shall not be entitled to terminate rescind this Agreement pursuant agreement and, accordingly, each party, to this Clause 5.4(ii) if Seller’s breach the maximum extent permitted by Law, waives all and any rights of rescission it may have in respect of this Agreement has prevented or materially delayed the consummation of the Transactions (which term for the purposes of this Clause 5.4(ii) shall not include the Financing);
(iii) By the Purchaser, upon written notice to the Seller, if the conditions set out in Clauses 3.2 and 3.3 have not been satisfied (or satisfied subject only to Completion where applicable) or waived (where applicable) on or before the Long Stop Date; provided that the Purchaser shall not be entitled to terminate this Agreement pursuant to this Clause 5.4(iii) if Purchaser’s breach of this Agreement has prevented or materially delayed the consummation of the Transactionsagreement.
(iv) By the Seller (if the Seller is not in material breach of the Seller Warranties, covenants or agreements under this Agreement so as to cause any of the conditions set forth in Clause 3.2 and/or 3.3(i) not to be satisfied), upon written notice to the Purchaser, if there has been a material inaccuracy of any statement or warranty, or any unremedied material breach of a covenant or other agreement, of the Purchaser contained in this Agreement, which violation, breach or inaccuracy would cause any of the conditions set forth in Clause 3.1 and/or 3.3 not to be satisfied as of the Completion Date, and such violation, breach or inaccuracy has not been waived by the Seller or cured by the Purchaser within 20 (twenty) Business Days after receipt by the Purchaser of written notice thereof from the Seller or is not reasonably capable of being cured prior to the Long Stop Date.
(v) By the Purchaser (if the Purchaser is not in material breach of the Purchaser Warranties, covenants or agreements under this Agreement so as to cause any of the conditions set forth in Clause 3.1 and/or 3.3 not to be satisfied), upon written notice to the Seller, if there has been a material inaccuracy of any statement or warranty, or any unremedied material breach of a covenant or other agreement, of the Seller contained in this Agreement, which violation, breach or inaccuracy would cause any of the conditions set forth in Clauses 3.2 and/or 3.3(i) not to be satisfied as of the Completion Date, and such violation, breach or inaccuracy has not been waived by the Purchaser or cured by the Seller within 20 (twenty) Business Days after receipt by the Seller of written notice thereof from the Purchaser or is not reasonably capable of being cured prior to the Long Stop Date.
(vi) By the Seller or the Purchaser, upon written notice to the other, if a court of competent jurisdiction or any other Governmental Authority shall have issued a final, non-appealable order preventing or otherwise prohibiting the consummation of the Transactions.
5.5. If this Agreement is terminated prior to Completion in accordance with Clause 5.4 above,
(i) this Agreement shall become void and of no further force and effect; provided, however, that the provisions of this Clause 5.5 and Clauses 1 (Definitions and Interpretation), 11 (Announcements and Confidentiality), 12 (Notices), 13 (Governing Law, Disputes and Jurisdiction), 14.1 (Entire Agreement), 14.6 (Variation), 14.7 (No Assignment), 14.8 (Waiver), 14.9 (Severability), 14.10 (Supersession) and 14.11 (Expenses) shall survive the termination of this Agreement indefinitely and that nothing herein shall relieve any Party from any liability for fraud or any breach of the provisions of this Agreement prior to such termination; and
(ii) if applicable, the Observer shall no longer be entitled to attend the meetings of the Board (or any committee thereof) and the nominees of the Purchaser appointed on the Board in accordance with Clause 6.2 shall resign with immediate effect.
Appears in 2 contracts
Sources: Share Purchase Agreement, Share Purchase Agreement (American International Group Inc)
Completion. 5.1. Subject to the conditions set out in Clauses 3.1, 3.2 and 3.3, 5.1 Completion shall take place at the offices of the Seller’s Solicitors on the Completion Date.
5.2. The obligations of each of the Parties under Clause 5.3 below are interdependent of each other. The Completion shall not occur unless all of the obligations specified 5.2 Subject to any extension in Clause 5.3accordance with clause 5.7, have been simultaneously complied with and are fully effective.
5.3. On the Completion Date:
(i) Subject to deductions pursuant to Clause 4.4, the Purchaser shall remit the Purchase Consideration (in immediately available funds) to the Seller’s Bank Account.
(ii) The Seller shall (a) provide to its Depository Participant duly executed DP Instructions in the prescribed form for the transfer of the Sale Shares to the Demat Account of the Purchaser (details of which shall be provided to the Seller in writing as soon as practicable after the Execution Date); (b) procure its Depository Participant to duly acknowledge such DP Instructions; (c) deliver a copy of such acknowledgement to the Purchaser; and (d) use best endeavours to procure credit of the Sale Shares to the Demat Account of the Purchaser.
(iii) The Seller shall, to the extent it is able to do so through exercise of its voting rights, procure that a Board meeting is held at which the following business shall be transactedDate means:
(a) the appointment fifth Business Day after all of directors nominated the Conditions are satisfied or waived; or
(b) any other date agreed in writing by Seller and Buyer.
5.3 At least five Business Days prior to the Purchaser on date fixed for Completion, Seller, acting reasonably and in good faith (but otherwise without liability), shall provide to Buyer a written estimate of the Board shall be approvedCompletion Accounts and the Statement, including each of the following, together with a certificate from the Seller’s accountants as to the accuracy of each such estimate:
(a) the Working Capital Amount (the “Estimated Working Capital Amount”);
(b) the Debt (the “Estimated Debt”); and
(bc) the Cash (the “Estimated Cash”).
5.4 On Completion the Seller or the Czech Seller (as the case may be) shall deliver to or, if the Buyer shall so agree, make available to the Buyer:
(a) an extra-ordinary general extract of the minutes of a duly held meeting of the shareholders directors (or a duly constituted committee thereof) of each of the Company to approve the matters set out in Clause 5.3(iii)(a) Seller and the amendment Czech Seller (and, to the extent available, the Seller Guarantor) authorising the execution by each of the Articles Seller, the Czech Seller and the Seller Guarantor of Association shall this document and any document to be conveneddelivered by the Seller, the Czech Seller and/or the Seller Guarantor at or prior to Completion (including each Transaction Agreement) and, where such execution is authorised by a committee of the board of directors of the Seller, the Czech Seller and/or the Seller Guarantor, an extract of the minutes of a duly held meeting of the directors constituting such committee or the relevant extract thereof);
(b) transfers in common form relating to all the Company Shares duly executed in favour of the Buyer (or as it may direct);
(c) a resolution of the Czech Seller, as the sole shareholder of Cyberview Czech, acting in the capacity of Cyberview Czech’s general meeting in accordance with Section 132 of Act No. 513/1991 Coll., Commercial Code as amended, of the Czech Republic, resolving to divide the Czech Share into two parts (consistent with the division of the Czech Share as contemplated in the Czech Transfer Agreement), such resolution being in the form of the Czech notarial deed prepared by a Czech notary in the Czech Republic, in a form acceptable to the Buyer, acting reasonably;
5.4. This (d) the Czech Transfer Agreement duly executed in favour of the Buyer and SG Global duly notarised and apostilled;
(e) share certificates representing the Company Shares;
(f) resignations in the Agreed Form duly executed as deeds, of the directors of any Group Company set forth on schedule 10, or as the Buyer may specify by notice to the Seller no later than 5 Business Days prior to Completion, from their offices as director any Group Company containing a confirmation that they have no claims (whether statutory, contractual or otherwise) against any Group Company;
(g) if so required by the Buyer no later than 5 Business Days prior to Completion, the written resignations of the auditors of each Group Company containing an acknowledgement that they have no claim against any Group Company for compensation for loss of office, professional fees or otherwise and a statement under section 519(1) of the Companies ▇▇▇ ▇▇▇▇;
(h) the common seals, certificates of incorporation and statutory books, share certificate books and cheque books of each Group Company;
(i) an officer’s certificate executed on behalf of the Seller to the effect that (i) the Warranties are true and correct and not misleading in any respect at Completion that would give rise to a right to terminate under clause 14.1(e); and (ii) there has been no material breach by the Seller of any of its obligations under this Agreement required to be performed at or prior to Completion;
(j) each Transaction Agreement duly executed by the Seller and each of its Related Persons that is required to be a party thereto;
(k) title deeds and other documents relating to the Properties, excluding the Manchester Property (except to the extent that the same are in the possession of mortgagees pursuant to mortgages disclosed in schedule 5);
(l) irrevocable powers of attorney from the Seller in a form satisfactory to the Buyer (acting reasonably) relating to the exercise of rights in respect of the Shares pending their registration in the name of the Buyer and/or its nominee;
(m) to the extent not in the possession of any Group Company all books of account concerning the businesses of that Group Company;
(n) to the extent not in the possession of any Group Company, copies of all licences, consents, permits and authorisations obtained by or issued to that Group Company;
(o) to the extent not in the possession of any Group Company, all books and records of that Group Company relating to the employees and/or directors of that Group Company;
(p) an acknowledgement from the Seller in a form satisfactory to the Buyer (acting reasonably), to the effect that: (i) there is no Intra-Group Indebtedness owing at Completion; (ii) all Contracts between a member of the Seller’s Group, on the one hand, and a Group Company, on the other hand, other than the Transaction Agreements, have been terminated and have ceased to have effect on or prior to Completion, and that all rights and obligations of the parties thereto thereunder have ceased to have effect; (iii) the Pre-Completion Date Dividends have been paid prior to Completion and specifying the amount or character thereof; and (iv) no Group Company has any liability or obligation in respect of Financial Debt as followsat Completion;
(q) share certificates relating to all of the issued shares that the Company owns in the capital of each of the Subsidiaries;
(r) duly executed releases in a form acceptable to the Buyer, acting reasonably, of all Encumbrances, except Permitted Encumbrances, to which any of the Group Companies is party together with any forms or other documents to release or evidence release of such Encumbrances in any relevant jurisdiction;
(s) the deed of amendment, substitution of principal employer and cessation of participation, in a form acceptable to the Buyer, acting reasonably, duly executed by the Seller and the Trustee of the IGT UK Group Pension Scheme;
(t) a resolution of the Czech Seller, the sole shareholder of Cyberview Czech, acting in the capacity of Cyberview Czech’s general meeting in accordance with Section 132 of Act No. 513/1991 Coll., Commercial Code as amended, of the Czech Republic, resolving to:
(i) By the mutual written consent remove each of the Purchaser and the Seller.existing directors;
(ii) By the Seller, upon written notice to the Purchaser, if the conditions set out in Clauses 3.1 and 3.3 have not been satisfied (or satisfied subject only to Completion where applicable) or waived (where applicable) on or before 270 (two hundred seventy) days from the Execution Date or such later date as may be mutually agreed between the Parties in writing (“Long Stop Date”); provided that the Seller shall not be entitled to terminate this Agreement pursuant to this Clause 5.4(ii) if Seller’s breach of this Agreement has prevented or materially delayed the consummation appoint each of the Transactions (which term for persons as the purposes Buyer nominates to be the directors of this Clause 5.4(ii) shall not include the Financing)Cyberview Czech;
(iii) By appoint such person as the Purchaser, upon written notice Buyer nominates to be the Seller, if the conditions set out in Clauses 3.2 and 3.3 have not been satisfied (or satisfied subject only to Completion where applicable) or waived (where applicable) on or before the Long Stop Dateauditor; provided that the Purchaser shall not be entitled to terminate this Agreement pursuant to this Clause 5.4(iii) if Purchaser’s breach of this Agreement has prevented or materially delayed the consummation of the Transactions.and
(iv) By amend the Seller (if the Seller is not in material breach articles of the Seller Warranties, covenants or agreements under this Agreement so as to cause any association of the conditions set forth in Clause 3.2 and/or 3.3(i) not to be satisfied), upon written notice to the Purchaser, if there has been a material inaccuracy of any statement or warranty, or any unremedied material breach of a covenant or other agreement, of the Purchaser contained in this Agreement, which violation, breach or inaccuracy would cause any of the conditions set forth in Clause 3.1 and/or 3.3 not to be satisfied as of the Completion Date, and such violation, breach or inaccuracy has not been waived by the Seller or cured by the Purchaser within 20 (twenty) Business Days after receipt by the Purchaser of written notice thereof from the Seller or is not reasonably capable of being cured prior to the Long Stop Date.
(v) By the Purchaser (if the Purchaser is not in material breach of the Purchaser Warranties, covenants or agreements under this Agreement so as to cause any of the conditions set forth in Clause 3.1 and/or 3.3 not to be satisfied), upon written notice to the Seller, if there has been a material inaccuracy of any statement or warranty, or any unremedied material breach of a covenant or other agreement, of the Seller contained in this Agreement, which violation, breach or inaccuracy would cause any of the conditions set forth in Clauses 3.2 and/or 3.3(i) not to be satisfied as of the Completion Date, and such violation, breach or inaccuracy has not been waived by the Purchaser or cured by the Seller within 20 (twenty) Business Days after receipt by the Seller of written notice thereof from the Purchaser or is not reasonably capable of being cured prior to the Long Stop Date.
(vi) By the Seller or the Purchaser, upon written notice to the other, if a court of competent jurisdiction or any other Governmental Authority shall have issued a final, non-appealable order preventing or otherwise prohibiting the consummation of the Transactions.
5.5. If this Agreement is terminated prior to Completion Cyberview Czech in accordance with Clause 5.4 above,the Buyer’s instructions to: (i) change the registered office; and (ii) change the accounting reference date to 31 December; such resolution to be in the form of a Czech notarial deed prepared by a Czech notary in the Czech Republic, in a form acceptable to the Buyer, acting reasonably;
(u) either:
(i) this Agreement shall become void an original extract from the companies register of the Czech Seller with an apostille certification, such extract showing the name, the registered office and the directors of no further force the Czech Seller; or
(ii) an original or certified copy of the certificate of incorporation of the Czech Seller, with an apostille certification, and effect; providedan original confirmation of the Czech Seller’s company secretary (with an apostille certification) stating the name, however, registered office and names of directors of the Czech Seller as well as confirmation that the provisions of this Clause 5.5 and Clauses 1 person who shall sign the Czech Transfer Agreement is authorized to do so (Definitions and Interpretationif applicable), 11 (Announcements and Confidentiality), 12 (Notices), 13 (Governing Law, Disputes and Jurisdiction), 14.1 (Entire Agreement), 14.6 (Variation), 14.7 (No Assignment), 14.8 (Waiver), 14.9 (Severability), 14.10 (Supersession) and 14.11 (Expenses) shall survive the termination of this Agreement indefinitely and that nothing herein shall relieve any Party from any liability for fraud or any breach of the provisions of this Agreement prior to such termination; and
(iiv) if applicable, the Observer shall no longer be entitled original of a power of attorney, with an apostille certification, pursuant to attend which the meetings Czech Transfer Agreement has been executed by the Czech Seller;
(w) evidence in a form acceptable to the Buyer, acting reasonably, of the Board termination of each overdraft facility of each Group Company; and
(or any committee thereofx) the deed of cessation of participation, in a form acceptable to the Buyer, acting reasonably, duly executed by the Seller and the nominees Trustee of the Purchaser appointed IGT-UK-Group Limited Group Life Assurance Plan.
5.5 The Seller and the Czech Seller, as applicable, shall procure the passing of board resolutions of each Group Company, in a form acceptable to the Buyer, acting reasonably, at Completion (in the case of Cyberview Czech the resolution may be adopted in the Czech Republic and delivered at Completion in a copy by e-mail or facsimile, with the original being delivered to the Buyer promptly, and in any event within five Business Days, after Completion):
(a) sanctioning for registration (subject where necessary to due stamping) the transfers in respect of the Shares, except for Cyberview Czech;
(b) appointing such persons as the Buyer nominates to be the directors and secretary of each Group Company, except for Cyberview Czech;
(c) appointing such persons as the Buyer nominates to be the auditors of each Group Company, except for Cyberview Czech;
(d) revoking and/or revising all banks mandates for each Group Company as the Buyer requires, and giving authority in favour of such persons as the Buyer may nominate to operate the bank accounts thereof;
(e) resolving that the registered office of each Group Company be changed as the Buyer requires; and
(f) changing the accounting reference date of each Group Company, except for Cyberview Czech, to 31 December.
5.6 By no later than 2.00 p.m. on the Board Completion Date, subject to the Seller having complied with all the provisions of clause 5.4 and clause 5.5, the Buyer shall:
(a) provide for the transfer by CHAPS of the Completion Payment to the Seller’s Account and the receipt of the Seller’s Solicitors shall be a good discharge to the Buyer (and, for the avoidance of doubt, the Buyer shall be under no obligation whatsoever with respect to the apportionment of the Completion Payment between the Seller and the Czech Seller);
(b) deliver to the Seller the Tax Deed duly executed by the Buyer; and
(c) deliver to the Seller each other Transaction Agreement duly executed by the member of the Buyer’s Group expressed to be a party thereto (including the notarised and apostilled Czech Transfer Agreement).
5.7 If in accordance any respect the material obligations of the Seller or the Czech Seller, on the one hand, or the Buyer on the other hand, are not complied with Clause 6.2 on Completion, the Buyer, if the Seller or Czech Seller is in default of its material obligations, or the Seller and Czech Seller if the Buyer is in default of its material obligations, shall resign with immediate effectnot be obliged to complete the sale and purchase of the Shares and may, in its absolute discretion, by written notice to the other party at the time Completion would otherwise be due to take place:
(a) terminate this Agreement; or
(b) elect to defer Completion by not more than 20 Business Days after the original date for Completion to such other date as it may specify in such notice (in which event the provisions of this clause 5.7 shall apply, mutatis mutandis, if the Seller or the Czech Seller, on the one hand, or the Buyer, on the other, fails or is unable to perform any such obligations), provided that neither the Seller nor the Czech Seller shall be able to exercise such rights if the Buyer can demonstrate to the reasonable satisfaction of the Seller that it has arranged for the transfer of the Completion Payment to the Seller’s Account, value date the Completion Date.
Appears in 2 contracts
Sources: Share Purchase Agreement, Share Purchase Agreement (Scientific Games Corp)
Completion. 5.1. Subject 5.1 On Completion, the sales and purchases of the Shares shall be completed in the order specified below with Completion taking place at the offices of the Buyer’s Solicitors on the fifth Business Day after the day on which all the conditions specified in clause 2.1(a) to 2.1(j) have been satisfied or waived or at such other place or time, or on such other date, as the parties may agree:
(a) first, the sale of the Indirect Sale Shares by the ODL Shareholders to the conditions set out in Clauses 3.1C-Corp Sellers;
(b) secondly, 3.2 and 3.3the sale of the Indirect Sale Shares by the C-Corp Sellers to the Buyer; and
(c) thirdly, Completion shall take place on the Completion Datesale of the Direct Sale Shares by the ODL Shareholders to the Buyer.
5.25.2 Insofar as they are able each of the ODL Sellers shall on Completion do, or procure to be done, the things specified in Schedule 5 (in so far as they have not already been done). The obligations of each Gardenparty and the Adhering ODL Sellers pursuant to this clause 5.2 shall be limited to obligations relating to their own Shares within their personal control including voting their Shares in favour of any shareholder resolutions proposed to implement any matter specified in Schedule 5.
5.3 Following the performance of the Parties ODL Sellers’ obligations under Clause 5.3 below are interdependent of each other. The clause 5.2, the Buyer shall on Completion shall not occur unless all -
(a) deliver one counterpart of the obligations specified in Clause 5.3, have been simultaneously complied with LLC Agreement executed by the Buyer to the C-Corp Sellers reflecting the issue of the Buyer Initial Share to the C-Corp Sellers and are fully effective.the ability to issue the Buyer Performance Share;
5.3. On the Completion Date(b) procure that:
(i) Subject ▇▇▇▇▇▇ ▇▇▇▇▇▇ Wellesley be appointed as an observer of the board of directors of the Buyer as the initial C-Corp Sellers’ board observer representative (such observer being entitled to deductions pursuant receive notice of, and attend meetings, of the board of directors of the Buyer as if he were a director of the Buyer but not counting towards quorum or being entitled to Clause 4.4, the Purchaser shall remit the Purchase Consideration (in immediately available fundsspeak or vote at any such meetings) to the Seller’s Bank Account.and
(ii) The Seller shall ▇▇▇▇▇▇▇ Naldini (a) provide or a substitute acceptable to its Depository Participant duly executed DP Instructions in the prescribed form for the transfer board of directors of the Sale Shares to the Demat Account Buyer) be approved as an alternate observer of the Purchaser (details board of which shall be provided to directors of the Seller in writing as soon as practicable after the Execution Date)Buyer for ▇▇▇▇▇▇ ▇▇▇▇▇▇ Wellesley; (b) procure its Depository Participant to duly acknowledge such DP Instructions; and
(c) deliver a copy the items specified in Part B of such acknowledgement Schedule 5 duly executed by the Buyer.
5.4 The Buyer may make any payment due to the Purchaser; ODL Sellers under this Agreement and (d) use best endeavours to procure credit of deliver the Sale Shares items specified in clause 5.3 to the Demat Account of Sellers’ Solicitors, whose receipt shall be a sufficient discharge to the PurchaserBuyer and the Buyer shall have no duty to see that any items delivered to the Sellers’ Solicitors are further delivered or applied in any particular way. The ODL Sellers may deliver the items specified in clause 5.2 to the Buyers’ Solicitors whose receipt shall be a sufficient discharge to the ODL Sellers and the ODL Sellers shall have no duty to see that any items delivered to the Buyer’s Solicitors are further delivered or applied in any particular way.
5.5 If the ODL Sellers fail to comply with any of their obligations under clause 5.2 on or before the date fixed for Completion (iiiwhether by clause 5.1 or by a notice given pursuant to clause 5.5(b) The Seller shallbelow), the Buyer may, without prejudice to the extent Buyer’s rights or remedies which it is able to do so through exercise may have under this Agreement and which in the case of its voting rights, procure that a Board meeting is held repudiation are set out at which the following business shall be transactedclauses 5.5(b) and 5.7:
(a) complete the appointment sale and purchase of directors nominated by the Purchaser Shares (so far as is practicable) on the Board shall be approveddate so fixed; andor
(b) an extra-ordinary general meeting of the shareholders of the Company to approve the matters set out in Clause 5.3(iii)(a) and the amendment of the Articles of Association shall be convened.
5.4. This Agreement may be terminated on or prior to the Completion Date as follows:
(i) By the mutual written consent of the Purchaser and the Seller.
(ii) By the Seller, upon by written notice to the PurchaserSellers’ Representative, defer Completion to a place, time and date, being a Business Day not less than 5 Business Days and not more than 25 Business Days after the date of the notice, and the provisions of clauses 5.2 and 5.3 shall apply to Completion so deferred and, if in such written notice, the conditions set out in Clauses 3.1 Buyer specifies that the ODL Sellers’ failure constitutes a repudiatory breach, then the time and 3.3 have date for the deferred Completion shall be not been satisfied (or satisfied subject only less than 20 Business Days and not more than 25 Business Days after the date of the notice and the provisions of clauses 5.2 and 5.3 shall apply to Completion where applicableso deferred.
5.6 If the Buyer defers Completion in accordance with clause 5.5(b) or waived (where applicableabove, it shall specify in the written notice referred to in clause 5.5(b) on or before 270 (two hundred seventy) days from the Execution Date or such later date as may any breach of obligation it considers to be mutually agreed between the Parties in writing (“Long Stop Date”); provided a repudiatory breach.
5.7 The Buyer acknowledges that the Seller it shall not be entitled to terminate rescind or repudiate this Agreement pursuant to this Clause 5.4(ii) if Seller’s breach of this Agreement has prevented or materially delayed except the consummation of the Transactions (which term for the purposes of this Clause 5.4(ii) Buyer shall not include the Financing);
(iii) By the Purchaser, upon written notice to the Seller, if the conditions set out in Clauses 3.2 and 3.3 have not been satisfied (or satisfied subject only to Completion where applicable) or waived (where applicable) on or before the Long Stop Date; provided that the Purchaser shall not be entitled to terminate rescind this Agreement pursuant to this Clause 5.4(iii) if Purchaser’s breach of this Agreement has prevented or materially delayed the consummation of the Transactions.
(iv) By the Seller (if the Seller is not in material breach of the Seller Warranties, covenants or agreements under this Agreement so as to cause any of the conditions set forth in Clause 3.2 and/or 3.3(i) not to be satisfied), upon written notice to the Purchaser, if where there has been a material inaccuracy of any statement or warrantyrepudiatory breach by the ODL Sellers, or any unremedied material breach of a covenant or other agreement, of the Purchaser contained notice has been given in this Agreement, which violation, breach or inaccuracy would cause any of the conditions set forth in Clause 3.1 and/or 3.3 not to be satisfied as of the Completion Date, accordance with clause 5.5(b) and such violation, repudiatory breach or inaccuracy has not been waived remedied by the Seller or cured by the Purchaser within 20 (twenty) Business Days after receipt by the Purchaser date of written notice thereof from the Seller or is not reasonably capable of being cured prior to the Long Stop Date.
(v) By the Purchaser (if the Purchaser is not in material breach of the Purchaser Warranties, covenants or agreements under this Agreement so Completion as to cause any of the conditions set forth in Clause 3.1 and/or 3.3 not to be satisfied), upon written notice to the Seller, if there has been a material inaccuracy of any statement or warranty, or any unremedied material breach of a covenant or other agreement, of the Seller contained in this Agreement, which violation, breach or inaccuracy would cause any of the conditions set forth in Clauses 3.2 and/or 3.3(i) not to be satisfied as of the Completion Date, and such violation, breach or inaccuracy has not been waived by the Purchaser or cured by the Seller within 20 (twenty) Business Days after receipt by the Seller of written notice thereof from the Purchaser or is not reasonably capable of being cured prior to the Long Stop Date.
(vi) By the Seller or the Purchaser, upon written notice to the other, if a court of competent jurisdiction or any other Governmental Authority shall have issued a final, non-appealable order preventing or otherwise prohibiting the consummation of the Transactions.
5.5. If this Agreement is terminated prior to Completion deferred in accordance with Clause 5.4 above,
(i) this Agreement shall become void and of no further force and effect; provided, however, that the provisions of this Clause 5.5 and Clauses 1 (Definitions and Interpretationclause 5.5(b), 11 (Announcements and Confidentiality), 12 (Notices), 13 (Governing Law, Disputes and Jurisdiction), 14.1 (Entire Agreement), 14.6 (Variation), 14.7 (No Assignment), 14.8 (Waiver), 14.9 (Severability), 14.10 (Supersession) and 14.11 (Expenses) shall survive the termination of this Agreement indefinitely and that nothing herein shall relieve any Party from any liability for fraud or any breach of the provisions of this Agreement prior to such termination; and
(ii) if applicable, the Observer shall no longer be entitled to attend the meetings of the Board (or any committee thereof) and the nominees of the Purchaser appointed on the Board in accordance with Clause 6.2 shall resign with immediate effect.
Appears in 2 contracts
Sources: Share Purchase Agreement (FXCM Inc.), Share Purchase Agreement (FXCM Inc.)
Completion. 5.1. 4.1 Subject to the conditions set out in Clauses 3.1, 3.2 satisfaction or waiver of the Conditions Precedent [and 3.3, Completion Clause 4.5] completion of the sale and purchase of the Asset shall take place on the Completion Date.
5.2. The obligations of each of the Parties under Clause 5.3 below are interdependent of each other. The Completion shall not occur unless all of the obligations specified in Clause 5.3, have been simultaneously complied with and are fully effective.
5.3. On Date at the Completion Date:
(i) Subject to deductions pursuant to Clause 4.4, Venue when the Purchaser following shall remit the Purchase Consideration (in immediately available funds) to the Seller’s Bank Account.
(ii) The Seller shall (a) provide to its Depository Participant duly executed DP Instructions take place in the prescribed form for the transfer of the Sale Shares to the Demat Account of the Purchaser (details of which shall be provided to the Seller in writing as soon as practicable after the Execution Date); (b) procure its Depository Participant to duly acknowledge such DP Instructions; (c) deliver a copy of such acknowledgement to the Purchaser; and (d) use best endeavours to procure credit of the Sale Shares to the Demat Account of the Purchaser.
(iii) The Seller shall, to the extent it is able to do so through exercise of its voting rights, procure that a Board meeting is held at which the following business shall be transacted:order:-
(a) the appointment of directors nominated by the Purchaser on the Board shall be approved; and
(b) an extra-ordinary general meeting of the shareholders of the Company to approve the matters set out in Clause 5.3(iii)(a) and the amendment of the Articles of Association shall be convened.
5.4. This Agreement may be terminated on or prior to the Completion Date as follows:Seller shall:-
(i) By deliver to the mutual written consent Purchaser copies of the Purchaser and the Seller.Secretary of State Consents;
(ii) By the Seller, upon written notice deliver to the Purchaser, if Purchaser the conditions set out in Clauses 3.1 and 3.3 have not been satisfied (or satisfied subject only to Completion where applicable) or waived (where applicable) on or before 270 (two hundred seventy) days from the Execution Date or such later date as may be mutually agreed between the Parties in writing (“Long Stop Date”); provided that the Seller shall not be entitled to terminate this Agreement pursuant to this Clause 5.4(ii) if Seller’s breach of this Agreement has prevented or materially delayed the consummation Documents duly executed by all of the Transactions (which term for parties thereto other than the purposes Secretary of this Clause 5.4(ii) shall not include State and the Financing)Purchaser;
(iii) By deliver to the PurchaserPurchaser a copy, upon certified as a true copy (in accordance with section 3 of the Powers of Attorney Act 1971) of the Power of Attorney authorising the execution of the Completion Documents on behalf of the Seller; and [(iv) deliver written notice confirmation that the Condition Precedent referred to at Clause 2.2.4 has been fulfilled.]
(b) the Purchaser shall:-
(i) pay to the Seller the Consideration together [with interest accrued pursuant to Clause 3.2] by means of a direct transfer in cleared readily available funds to the Seller's Account no later than close of business London time, if on the conditions set out Completion Date;
(ii) execute all the Completion Documents to which it is to be party and deliver copies thereof, certified as true copies, to the Seller;
(iii) deliver to the Seller a copy, certified as a true copy [(in Clauses 3.2 and 3.3 have not been satisfied (or satisfied subject only to Completion where applicable) or waived (where applicable) on or before the Long Stop Date; provided that the Purchaser shall not be entitled to terminate this Agreement pursuant to this Clause 5.4(iii) if Purchaser’s breach of this Agreement has prevented or materially delayed the consummation accordance with section 3 of the Transactions.Powers of Attorney Act 1971) of the Power of Attorney] authorising the execution of the Completion Documents on behalf of the Purchaser;
(iv) By [deliver to the Seller (if Operator a letter of credit in the Seller is not in material breach of form and amount agreed with the Seller Warranties, covenants or agreements under this Agreement so as to cause any of the conditions set forth in Clause 3.2 and/or 3.3(i) not to be satisfied), upon written notice Operator to the Purchaser, if there has been a material inaccuracy of any statement or warranty, or any unremedied material breach of a covenant or other agreement, of the Purchaser contained in this Agreement, which violation, breach or inaccuracy would cause any of the conditions set forth in Clause 3.1 and/or 3.3 not to be satisfied as of the Completion Date, and such violation, breach or inaccuracy has not been waived by the Seller or cured by the Purchaser within 20 (twenty) Business Days after receipt by the Purchaser of written notice thereof from the Seller or is not reasonably capable of being cured prior 's liability pursuant to the Long Stop Date.Decommissioning Agreement]; and
(v) By deliver to the Seller the Deed of Indemnity, duly executed by the Purchaser (if and [ ].
4.2 Each of the Parties shall, and shall procure that its respective Affiliates shall, execute such other documents and do all such other acts and things as may reasonably be required in order to effect the disposal of the Asset to the Purchaser is not in material breach and otherwise carry out the true intent of this Agreement.
4.3 The Seller shall deliver to the Purchaser Warrantiesthe Asset Data, covenants or agreements under this Agreement so as to cause any of the conditions set forth in Clause 3.1 and/or 3.3 not to be satisfied)Asset Documents, upon written notice the Data Room Documents and such other documentation relevant to the Seller, if there has been a material inaccuracy of any statement or warranty, or any unremedied material breach of a covenant or other agreement, of Asset as the Seller contained in this Agreement, which violation, breach or inaccuracy would cause any of Purchaser may reasonably request as soon as practicable following the conditions set forth in Clauses 3.2 and/or 3.3(i) not to be satisfied as of Completion Date but no later than 30 days following the Completion Date, and such violation, breach or inaccuracy has not been waived by the Purchaser or cured by the Seller within 20 (twenty) Business Days after receipt by the Seller of written notice thereof from the Purchaser or is not reasonably capable of being cured prior to the Long Stop Date.
(vi) By the Seller 4.4 If Completion does not take place on or the Purchaserbefore 2400 hours on [ ], upon either Party may terminate this Agreement by written notice to the other, if a court to be without prejudice to rights and obligation accrued prior to termination.]
4.5 [If, prior to Completion, material loss or damage is sustained to any of competent jurisdiction or any other Governmental Authority the Asset Property, the Purchaser shall not be obliged to complete the sale and purchase of the Asset and shall have issued a final, non-appealable order preventing or otherwise prohibiting the consummation of right by notice in writing to the TransactionsSeller to terminate this Agreement without prejudice to rights and obligations accrued prior to termination.] [See 2.2.4].
5.5. If 4.6 [Completion under this Agreement is terminated prior to Completion in accordance with Clause 5.4 above,
(i) this and completion under the Connected Agreement shall become void and of no further force and effect; provided, however, that the provisions of this Clause 5.5 and Clauses 1 (Definitions and Interpretation), 11 (Announcements and Confidentiality), 12 (Notices), 13 (Governing Law, Disputes and Jurisdiction), 14.1 (Entire Agreement), 14.6 (Variation), 14.7 (No Assignment), 14.8 (Waiver), 14.9 (Severability), 14.10 (Supersession) and 14.11 (Expenses) shall survive the termination of this Agreement indefinitely and that nothing herein shall relieve any Party from any liability for fraud or any breach of the provisions of this Agreement prior to such termination; and
(ii) if applicable, the Observer shall no longer be entitled to attend the meetings of the Board (or any committee thereof) and the nominees of the Purchaser appointed on the Board in accordance with Clause 6.2 shall resign with immediate effecttake place simultaneously.]
Appears in 2 contracts
Sources: Sale and Purchase Agreement, Sale and Purchase Agreement
Completion. 5.1. Subject to 9.1 Completion shall take place at the offices of NautaDutilh N.V. at ▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇▇ on the last day of the month in which fulfilment or waiver of the conditions set out in Clauses 3.1clause 4 (Conditions to Completion) takes place, 3.2 except that where less than five Business Days remain between such fulfilment and 3.3service and the last day of the month, Completion shall take place:
(A) on the last day of the following month; or
(B) at such other location, time or date as may be agreed between the Sellers, it being understood that the transfers of the Shares and the JV Co Shares shall take place on Completion at the offices of the Notary by way of execution of the Deeds of Transfer before the Notary.
9.2 At Completion, the parties shall comply with their respective obligations in sub-clauses 2.1 and 2.2 (in each case as applicable) and the Sellers shall do those things listed in Part A (Seller’s obligations) and Part D (Execution of Deeds of Transfer) of Schedule 2 (Completion arrangements); the Purchaser shall do, and Liberty Global shall procure that the Purchaser does, those things listed in Part B (Purchaser’s obligations) of Schedule 2 (Completion arrangements); and the Guarantors shall do those things listed in Part E (Guarantors’ obligations) of Schedule 2 (Completion arrangements). Completion shall take place in accordance with Part C (General) of Schedule 2 (Completion arrangements).
9.3 No party shall be obliged to complete any of the transactions set out in sub-clauses 2.1 and 2.2 or carry out any of the steps set out in Schedule 2 (Completion arrangements) unless sub-clauses 6.1, 6.2, 6.5(C) and 6.6 or 6.7 (as applicable) have been complied with and irrevocable arrangements are in place for all such transactions and steps to be completed by all relevant parties on the Completion Date in accordance with the sequence of events set out in this Agreement. For the avoidance of doubt, (A) both the beneficial and legal ownership of the Liberty Global Target Company Shares and the Vodafone Target Company Shares will transfer to Purchaser at Completion and not before and (B) both the beneficial and legal ownership of the JV Co Shares will transfer to Vodafone at Completion and not before.
9.4 If the Estimated Vodafone Equalisation Consideration is a positive number, then Vodafone hereby assigns to Liberty Global (for no additional consideration), with effect from Completion, either (i) that portion of the receivable owing to Vodafone from the Purchaser under sub-clause 2.3 which is of an amount equal to the Estimated Vodafone Equalisation Consideration or (ii) if the receivable owing to Vodafone from the Purchaser under sub-clause 2.3 is equal to or less than the Estimated Vodafone Equalisation Consideration, the full amount of such receivable (both (i) and (ii) being the “Relevant Assigned Amount”).
9.5 The Purchaser shall pay to each Seller the amount owing to that Seller under sub-clause 2.3 (such amounts reflecting, for the avoidance of doubt, the assignment of the Relevant Assigned Amount under sub-clause 9.4) out of the Escrowed Proceeds as soon as practicable after execution of the Deeds of Transfer as part of the distribution or payment of the Escrowed Proceeds to each Retained Group. The Sellers agree to use all reasonable endeavours to procure the distribution or payment of the Escrowed Proceeds to the Purchaser as soon as practicable after Completion and in any event prior to the date falling three Business Days after the Completion Date.
5.2. The obligations of each of the Parties under Clause 5.3 below are interdependent of each other. The Completion shall not occur unless all of the obligations specified in Clause 5.3, have been simultaneously complied with and are fully effective.
5.3. On the Completion Date:
(i) Subject to deductions pursuant to Clause 4.4, the Purchaser shall remit the Purchase Consideration (in immediately available funds) to the Seller’s Bank Account.
(ii) The Seller shall (a) provide to its Depository Participant duly executed DP Instructions in the prescribed form for the transfer of the Sale Shares to the Demat Account of the Purchaser (details of which shall be provided to the Seller in writing as soon as practicable after the Execution Date); (b) procure its Depository Participant to duly acknowledge such DP Instructions; (c) deliver a copy of such acknowledgement to the Purchaser; and (d) use best endeavours to procure credit of the Sale Shares to the Demat Account of the Purchaser.
(iii) The Seller shall, to 9.6 To the extent it is able to do so through exercise of its voting rights, procure that a Board meeting is held at which the following business shall be transacted:
(a) the appointment of directors nominated by the Purchaser on the Board shall be approved; and
(b) an extra-ordinary general meeting of the shareholders of the Company to approve the matters set out in Clause 5.3(iii)(a) and the amendment of the Articles of Association shall be convened.
5.4. This Agreement may be terminated on or prior to the Completion Date as follows:
(i) By the mutual written consent of the Purchaser and the Seller.
(ii) By the Seller, upon written notice to the Purchaser, if the conditions set out in Clauses 3.1 and 3.3 have not been satisfied (or satisfied subject only to Completion where applicable) or waived (where applicable) on or before 270 (two hundred seventy) days from the Execution Date or such later date as may be mutually agreed between the Parties in writing (“Long Stop Date”); provided that the Seller shall not be entitled receivable owing to terminate this Agreement pursuant to this Clause 5.4(ii) if Seller’s breach of this Agreement has prevented or materially delayed the consummation of the Transactions (which term for the purposes of this Clause 5.4(ii) shall not include the Financing);
(iii) By the Purchaser, upon written notice to the Seller, if the conditions set out in Clauses 3.2 and 3.3 have not been satisfied (or satisfied subject only to Completion where applicable) or waived (where applicable) on or before the Long Stop Date; provided that the Purchaser shall not be entitled to terminate this Agreement pursuant to this Clause 5.4(iii) if Purchaser’s breach of this Agreement has prevented or materially delayed the consummation of the Transactions.
(iv) By the Seller (if the Seller is not in material breach of the Seller Warranties, covenants or agreements under this Agreement so as to cause any of the conditions set forth in Clause 3.2 and/or 3.3(i) not to be satisfied), upon written notice to the Purchaser, if there has been a material inaccuracy of any statement or warranty, or any unremedied material breach of a covenant or other agreement, of the Purchaser contained in this Agreement, which violation, breach or inaccuracy would cause any of the conditions set forth in Clause 3.1 and/or 3.3 not to be satisfied as of the Completion Date, and such violation, breach or inaccuracy has not been waived by the Seller or cured by the Purchaser within 20 (twenty) Business Days after receipt by the Purchaser of written notice thereof from the Seller or is not reasonably capable of being cured prior to the Long Stop Date.
(v) By the Purchaser (if the Purchaser is not in material breach of the Purchaser Warranties, covenants or agreements under this Agreement so as to cause any of the conditions set forth in Clause 3.1 and/or 3.3 not to be satisfied), upon written notice to the Seller, if there has been a material inaccuracy of any statement or warranty, or any unremedied material breach of a covenant or other agreement, of the Seller contained in this Agreement, which violation, breach or inaccuracy would cause any of the conditions set forth in Clauses 3.2 and/or 3.3(i) not to be satisfied as of the Completion Date, and such violation, breach or inaccuracy has not been waived by the Purchaser or cured by the Seller within 20 (twenty) Business Days after receipt by the Seller of written notice thereof Vodafone from the Purchaser or under sub-clause 2.3 is not reasonably capable of being cured prior less than the Estimated Vodafone Equalisation Consideration, Vodafone shall pay to Liberty Global an amount equal to any such shortfall (the “Estimated Equalisation Consideration Shortfall”). Vodafone shall pay the Estimated Equalisation Consideration Shortfall in cleared funds to the Long Stop Date.
(vi) By Liberty Global Account on the Seller or the Purchaser, upon written notice to the other, if a court of competent jurisdiction or any other Governmental Authority shall have issued a final, non-appealable order preventing or otherwise prohibiting the consummation of the Transactions.
5.5. If this Agreement is terminated prior to first Business Day following Completion in accordance with Clause 5.4 above,clause 29.
(i) this Agreement shall become void and of no further force and effect; provided, however, 9.7 In the event that the provisions of this Clause 5.5 and Clauses 1 (Definitions and Interpretation), 11 (Announcements and Confidentiality), 12 (Notices), 13 (Governing Law, Disputes and Jurisdiction), 14.1 (Entire Agreement), 14.6 (Variation), 14.7 (No Assignment), 14.8 (Waiver), 14.9 (Severability), 14.10 (Supersession) and 14.11 (Expenses) shall survive Purchaser has not discharged its obligation to pay the termination of this Agreement indefinitely and that nothing herein shall relieve any Party from any liability for fraud or any breach of the provisions of this Agreement prior amount owing to such termination; and
(ii) if applicable, the Observer shall no longer be entitled to attend the meetings of the Board (or any committee thereof) and the nominees of the Purchaser appointed on the Board Liberty Global under sub-clause 2.3 in accordance with Clause 6.2 sub-clause 9.5 (including taking into account the assignment of the Relevant Assigned Amount under sub-clause 9.4) within ten Business Days after the Completion Date (the “Estimated Equalisation Payment Deadline”), Vodafone shall resign pay to Liberty Global the Estimated Vodafone Equalisation Consideration (less the amount of any Estimated Equalisation Consideration Shortfall already paid by Vodafone to Liberty Global in accordance with sub-clause 9.6) in cleared funds to the Liberty Global Account on the Estimated Equalisation Payment Deadline in accordance with clause 29. To the extent that Vodafone pays such amount to Liberty Global in accordance with this sub-clause 9.7, then Liberty Global hereby assigns to Vodafone (for nil consideration), and with immediate effect, the Relevant Assigned Amount receivable owing to Liberty Global from the Purchaser pursuant to sub-clauses 2.3 and 9.
Appears in 2 contracts
Sources: Contribution Agreement (Vodafone Group Public LTD Co), Contribution and Transfer Agreement (Liberty Global PLC)
Completion. 5.1. Subject to the conditions set out in Clauses 3.1, 3.2 and 3.3, 14.1 Completion shall take place on the 5th Business Day after the later of:
14.1.1 the day on which the Completion Conditions have been satisfied or waived; and
14.1.2 such other date as the Parties may agree in writing, (the Completion Date).
5.2. The obligations 14.2 Prior to the Completion Date, the Parties and the Notary shall enter into the Notary Letter.
14.3 At Completion, the Parties shall perform all actions or procure the performance of all actions as set out in Schedule 3 (Completion Agenda), it being understood and agreed that (i) any actions set forth therein which have already been performed before Completion, shall be deemed to have been performed at Completion and (ii) each of the Parties under Clause 5.3 below are interdependent of each other. The Completion actions set forth therein shall not occur unless all be conditional upon the completion of the obligations specified performances of all other actions expressed to be performed, executed or delivered at Completion in accordance with this Clause 5.3, have been simultaneously complied with and are fully effective14.3.
5.3. On 14.4 Each Party shall, at its own cost and expense, perform all such further acts and execute all such further documents as shall be necessary to fully effect the Completion Date:
(i) Subject to deductions pursuant to Clause 4.4, the Purchaser shall remit the Purchase Consideration (in immediately available funds) to the Seller’s Bank Accounttransactions contemplated by this Agreement.
(ii) The Seller shall (a) provide to its Depository Participant duly executed DP Instructions in 14.5 If the prescribed form for Sellers on the transfer of the Sale Shares to the Demat Account of the Purchaser (details of which shall be provided to the Seller in writing as soon as practicable after the Execution Date); (b) procure its Depository Participant to duly acknowledge such DP Instructions; (c) deliver a copy of such acknowledgement to the Purchaser; and (d) use best endeavours to procure credit of the Sale Shares to the Demat Account of the Purchaser.
(iii) The Seller shall, to the extent it is able to do so through exercise of its voting rights, procure that a Board meeting is held at which the following business shall be transacted:
(a) the appointment of directors nominated by one hand or the Purchaser on the Board shall be approved; and
(b) an extra-ordinary general meeting other hand fail to perform or procure the performance of any of the shareholders actions set forth in the Completion Agenda and the performance of such action or actions is not waived by the other Party on the Completion Date, the Purchaser may if one or more of the Company Sellers failed to approve the matters set out in Clause 5.3(iii)(a) perform and the amendment of the Articles of Association shall be convened.
5.4. This Agreement Sellers may be terminated on or prior to the Completion Date as follows:
(i) By the mutual written consent of if the Purchaser failed to perform, without prejudice to any other rights and the Seller.
(ii) By the Sellerremedies available to it pursuant to this Agreement or applicable Law, upon by written notice to the Purchaser, if other Party:
14.5.1 terminate (beëindigen) this Agreement with immediate effect;
14.5.2 effect Completion on the conditions set out in Clauses 3.1 and 3.3 Completion Date insofar as practicable having regard to the default(s) that have not been satisfied (or satisfied subject only to Completion where applicable) or waived (where applicable) on or before 270 (two hundred seventy) days from the Execution Date or such later date as may be mutually agreed between the Parties in writing (“Long Stop Date”)occurred; provided or
14.5.3 demand that the Seller Party not performing shall not be entitled to terminate this Agreement pursuant to this Clause 5.4(ii) if Seller’s breach of this Agreement has prevented or materially delayed perform the consummation of the Transactions relevant actions as soon as possible, but ultimately within ten (which term for the purposes of this Clause 5.4(ii) shall not include the Financing);
(iii) By the Purchaser, upon written notice to the Seller, if the conditions set out in Clauses 3.2 and 3.3 have not been satisfied (or satisfied subject only to Completion where applicable) or waived (where applicable) on or before the Long Stop Date; provided that the Purchaser shall not be entitled to terminate this Agreement pursuant to this Clause 5.4(iii) if Purchaser’s breach of this Agreement has prevented or materially delayed the consummation of the Transactions.
(iv) By the Seller (if the Seller is not in material breach of the Seller Warranties, covenants or agreements under this Agreement so as to cause any of the conditions set forth in Clause 3.2 and/or 3.3(i) not to be satisfied), upon written notice to the Purchaser, if there has been a material inaccuracy of any statement or warranty, or any unremedied material breach of a covenant or other agreement, of the Purchaser contained in this Agreement, which violation, breach or inaccuracy would cause any of the conditions set forth in Clause 3.1 and/or 3.3 not to be satisfied as of the Completion Date, and such violation, breach or inaccuracy has not been waived by the Seller or cured by the Purchaser within 20 (twenty10) Business Days after receipt by the Purchaser of written notice thereof from the Seller or is not reasonably capable of being cured prior to the Long Stop Date.
(v) By the Purchaser (if the Purchaser is not in material breach of the Purchaser Warrantiesdate set for Completion, covenants or agreements under this Agreement so as to cause any of the conditions set forth in Clause 3.1 and/or 3.3 not to be satisfied), upon written notice to the Seller, if there has been a material inaccuracy of any statement or warranty, or any unremedied material breach of a covenant or other agreement, of the Seller contained in this Agreement, which violation, breach or inaccuracy would cause any of the conditions set forth in Clauses 3.2 and/or 3.3(i) not to be satisfied as of the Completion Date, and such violation, breach or inaccuracy has not been waived by the Purchaser or cured by the Seller within 20 (twenty) Business Days after receipt by the Seller of written notice thereof from the Purchaser or is not reasonably capable of being cured prior to the Long Stop Date.
(vi) By the Seller or the Purchaser, upon written notice to the other, if a court of competent jurisdiction or any other Governmental Authority shall have issued a final, non-appealable order preventing or otherwise prohibiting the consummation of the Transactions.
5.5. If this Agreement is terminated prior to Completion in accordance with Clause 5.4 above,
resulting in: (i) this Agreement shall become void and of no further force and effect; provideda postponed Completion on the 10th Business Day following the date such action is completed, however, that the provisions of this Clause 5.5 and Clauses 1 (Definitions and Interpretation), 11 (Announcements and Confidentiality), 12 (Notices), 13 (Governing Law, Disputes and Jurisdiction), 14.1 (Entire Agreement), 14.6 (Variation), 14.7 (No Assignment), 14.8 (Waiver), 14.9 (Severability), 14.10 (Supersession) and 14.11 (Expenses) shall survive the termination of this Agreement indefinitely and that nothing herein shall relieve any Party from any liability for fraud or any breach of in which case the provisions of this Agreement prior apply as if the date to such termination; and
which Completion is postponed is the date initially set for Completion, or (ii) if applicable, the Observer shall no longer be entitled to attend the meetings termination (beëindiging) of the Board (or any committee thereof) and the nominees of this Agreement with immediate effect by the Purchaser appointed on (in case the Board defaulting party is a Seller) or the Sellers (in accordance with Clause 6.2 shall resign with immediate effectcase the defaulting Party is the Purchaser), if the defaulting Party has not performed the relevant actions within such period.
Appears in 2 contracts
Sources: Master Purchase Agreement (SunOpta Inc.), Signing Protocol (SunOpta Inc.)
Completion. 5.1. Subject 7.1 The sales and purchases referred to in Clauses 2 and 3 shall be conditional on:
(a) the conditions issue by the Issuer of the Notes and the drawing by the Issuer under the Subordinated Loan Agreement of the amounts referred to in clause 2.1 of the Subordinated Loan Agreement on the Closing Date;
(b) the Relevant Documents having been executed and delivered by the parties thereto on or before the Closing Date;
(c) the delivery by the Issuer, each relevant Seller and each relevant Warehouser of a solvency certificate dated the date of such purchase in or substantially in the form set out in Clauses 3.1Schedule 6, 3.2 signed by an authorised officer of the relevant company; and
(d) (1) in the case of the sale and 3.3purchase of the PML Original Mortgages, the delivery of each Warehouse Original Release, (2) in the case of the sale and purchase of Additional Mortgages, if applicable, the delivery of the relevant Warehouse Further Release relating to those Additional Mortgages and (3) in the case of the sale and purchase of MTL Additional Mortgages, the satisfaction of the conditions specified in Clause 7.6(d) below. Completion of the purchase of the PML Original Mortgages shall take place on the Completion DateClosing Date immediately upon satisfaction of conditions (a), (b), (c) and (d)(1) referred to in this Clause 7.1, when the steps listed in Clause 7.2 shall take place, each of which shall be deemed to take place simultaneously and simultaneously with the satisfaction of conditions (a), (b), (c) and (d)(1) referred to in this Clause 7.1, immediately following which the steps listed in Clauses 7.5, 7.6 and 7.7 shall take place, each of which shall be deemed to take place simultaneously and payment shall be made in accordance with Clause 7.8.
5.27.2 On the Closing Date, the Warehousers shall deliver to PML in the case of the PML Original Mortgages:
(a) paper copies of the title deeds to the Properties in respect of the PML Original Mortgages;
(b) electronic copies of the PML Original Mortgages registered at the Land Registry of England and Wales;
(c) its files relating to each of the PML Original Mortgages; and
(d) one copy of the Annexure to this Agreement, signed by the parties hereto for the purposes of identification, and each of the Warehousers and PML shall deliver the relevant Warehouse Original Release (as appropriate to effect a release of any security interest over the legal and beneficial interests therein). The obligations items referred to in (a), (b), (c) and (d) above shall be delivered on the Closing Date to the offices of PML in Solihull or the relevant Warehouser shall confirm to PML in an agreed form of letter that following the Closing Date such items will be held by the relevant Warehouser to the order of PML and PML agrees that compliance with this provision shall constitute good delivery of the relevant documents for the purposes of this Clause.
7.3 On each Further Purchase Date, if applicable, the relevant Warehouser shall deliver to PML in the case of the PML Additional Mortgages:
(a) paper copies of the title deeds to the Properties in respect of the relevant Additional Mortgages;
(b) electronic copies of the Additional Mortgages registered at the Land Registry of England and Wales;
(c) its files relating to each of the relevant Additional Mortgages; and
(d) one copy of each of the Parties Additional Mortgage Requests delivered pursuant to Clauses 2.2 and 3.2, and each of that Warehouser and PML shall deliver a Warehouse Further Release (as appropriate to effect a release of any security interest over the legal and beneficial interests therein).
7.4 The items referred to in (a), (b), (c) and (d) in Clause 7.3 above shall be delivered on each Further Purchase Date at the offices of PML in Solihull or the relevant Warehouser shall confirm to PML in an agreed form of letter that following such Further Purchase Date such items will be held by the relevant Warehouser to the order of the PML and PML agrees that compliance with this provision shall constitute good delivery of the relevant documents for the purposes of this Clause.
7.5 On each Purchase Date, subject to the relevant Warehouser having performed its obligations under Clause 5.3 below 7.2 in the case of the PML Original Mortgages and Clause 7.3 in the case of the Additional Mortgages, if any, as the case may be, PML shall procure the payment of the Warehouser Consideration payable to the relevant Warehouser in accordance with Clause 5.1 for value on the relevant Purchase Date.
7.6 On each Purchase Date, each Seller shall deliver or procure that there are interdependent delivered to the Issuer:
(a) in the case of the Closing Date only, a duly executed power (in duplicate) in the form of the Power of Attorney;
(b) in the case of the Closing Date only, a certified copy of each other. The Completion shall not occur unless all of the obligations specified relevant Insurance Contracts set out in Schedule 1 and in the case of a Further Purchase Date, a certificate stating that there has been no material change to the Insurance Contracts set out in Schedule 1 (or if there has been a material change, a certified copy of the relevant Insurance Contract);
(c) the documents referred to in Clause 5.3, have been simultaneously complied with and are fully effective.7.2 or Clause 7.3 on the relevant Purchase Date as the case may be;
5.3. On (d) in the Completion case of any MTL Additional Mortgages purchased by the Issuer on a Further Purchase Date:
(i) Subject to deductions pursuant to Clause 4.4, paper copies of the Purchaser shall remit the Purchase Consideration (in immediately available funds) title deeds to the Seller’s Bank Account.Properties in respect of the MTL Additional Mortgages;
(ii) electronic copies of the MTL Additional Mortgages registered at the Land Registry of England and Wales;
(iii) its files relating to each of the MTL Additional Mortgages;
(iv) one copy of the MTL Additional Mortgage Request delivered pursuant to Clause 3.4 and
(v) in relation to the sale of MTL Additional Mortgages to the Issuer following the Closing Date, (i) a mortgage sale agreement duly executed by FF4 and MTL documenting the sale of the MTL Additional Mortgages from FF4 to MTL substantially in the form of Part A of Schedule 9 (Form of FF4 Documentation) to this Agreement, and (ii) a release of security which is effective to release any security interest over the legal and beneficial interests in the MTL Additional Mortgages dated on or before the relevant Further Purchase Date, duly executed by The Seller Bank of New York Mellon, London Branch (in its capacity as security trustee in respect of the FF4 Notes) and substantially in the form of Part B of Schedule 9 (Form of the FF4 Documentation) to this Agreement, and PML shall deliver the relevant Warehouse Release in respect of the PML Additional Mortgages (as appropriate to effect a release of any security interest over the legal and beneficial interests therein). The items referred to in Clauses 7.2 and 7.3, items (a) provide to its Depository Participant duly executed DP Instructions in the prescribed form for the transfer of the Sale Shares to the Demat Account of the Purchaser (details of which shall be provided to the Seller in writing as soon as practicable after the Execution Date); , (b) procure its Depository Participant to duly acknowledge such DP Instructions; ), (c) deliver a copy of such acknowledgement to the Purchaser; and (d) use best endeavours (in each case) shall be delivered on the relevant Purchase Date at the offices of PML (in its capacity as an Administrator), as Administrator in Solihull, or PML shall confirm to procure credit the Issuer and the Trustee in an agreed form of letter that as of the Sale Shares relevant Purchase Date such items will be held by PML to the Demat Account order of the Purchaser.
(iii) Trustee. The Seller shall, Issuer agrees that compliance with this provision shall constitute good delivery of the relevant documents to the extent it is able to do so through exercise of its voting rights, procure that a Board meeting is held at which the following business shall be transacted:
(a) the appointment of directors nominated by the Purchaser on the Board shall be approved; and
(b) an extra-ordinary general meeting of the shareholders of the Company to approve the matters set out in Clause 5.3(iii)(a) and the amendment of the Articles of Association shall be convened.
5.4. This Agreement may be terminated on or prior to the Completion Date as follows:
(i) By the mutual written consent of the Purchaser and the Seller.
(ii) By the Seller, upon written notice to the Purchaser, if the conditions set out in Clauses 3.1 and 3.3 have not been satisfied (or satisfied subject only to Completion where applicable) or waived (where applicable) on or before 270 (two hundred seventy) days from the Execution Date or such later date as may be mutually agreed between the Parties in writing (“Long Stop Date”); provided that the Seller shall not be entitled to terminate this Agreement pursuant to this Clause 5.4(ii) if Seller’s breach of this Agreement has prevented or materially delayed the consummation of the Transactions (which term Issuer for the purposes of this Clause 5.4(ii) shall not include Clause.
7.7 In the Financing);
(iii) By the Purchaser, upon written notice to the Seller, if the conditions set out in Clauses 3.2 and 3.3 have not been satisfied (or satisfied subject only to Completion where applicable) or waived (where applicable) on or before the Long Stop Date; provided that the Purchaser shall not be entitled to terminate this Agreement pursuant to this Clause 5.4(iii) if Purchaser’s breach of this Agreement has prevented or materially delayed the consummation case of the Transactions.
(iv) By Closing Date only, the Seller (if the Seller is not in material breach of the Seller Warranties, covenants or agreements under this Agreement so as to cause any of the conditions set forth in Clause 3.2 and/or 3.3(i) not to be satisfied), upon written notice to the Purchaser, if there has been a material inaccuracy of any statement or warrantyIssuer shall deliver, or any unremedied material breach of a covenant or other agreementprocure that there are delivered, of the Purchaser contained in this Agreement, which violation, breach or inaccuracy would cause any of the conditions set forth in Clause 3.1 and/or 3.3 not to be satisfied as of the Completion DatePML, and such violationMTS as Administrators, breach or inaccuracy has not been waived powers of attorney duly executed by the Seller or cured by Issuer and the Purchaser within 20 (twenty) Business Days after receipt by the Purchaser of written notice thereof from the Seller or is not reasonably capable of being cured prior to the Long Stop Date.
(v) By the Purchaser (if the Purchaser is not in material breach of the Purchaser Warranties, covenants or agreements under this Agreement so as to cause any of the conditions set forth in Clause 3.1 and/or 3.3 not to be satisfied), upon written notice to the Seller, if there has been a material inaccuracy of any statement or warranty, or any unremedied material breach of a covenant or other agreement, of the Seller contained in this Agreement, which violation, breach or inaccuracy would cause any of the conditions set forth in Clauses 3.2 and/or 3.3(i) not to be satisfied as of the Completion Date, and such violation, breach or inaccuracy has not been waived by the Purchaser or cured by the Seller within 20 (twenty) Business Days after receipt by the Seller of written notice thereof from the Purchaser or is not reasonably capable of being cured prior to the Long Stop Date.
(vi) By the Seller or the Purchaser, upon written notice to the other, if a court of competent jurisdiction or any other Governmental Authority shall have issued a final, non-appealable order preventing or otherwise prohibiting the consummation of the Transactions.
5.5. If this Agreement is terminated prior to Completion Trustee in accordance with Clause 5.4 above,
(i) this Agreement shall become void and of no further force and effect; provided, however, that the provisions of this Clause 5.5 and Clauses 1 (Definitions and Interpretation), 11 (Announcements and Confidentiality), 12 (Notices), 13 (Governing Law, Disputes and Jurisdiction), 14.1 (Entire Agreement), 14.6 (Variation), 14.7 (No Assignment), 14.8 (Waiver), 14.9 (Severability), 14.10 (Supersession) and 14.11 (Expenses) shall survive the termination of this Agreement indefinitely and that nothing herein shall relieve any Party from any liability for fraud or any breach clause 10.1 of the provisions Administration Agreement.
7.8 On the relevant Purchase Date, subject to each of this Agreement prior to such termination; and
(ii) if applicablethe relevant Warehouser and each Seller having satisfied and performed their respective obligations herein, the Observer Issuer shall no longer be entitled to attend satisfy and discharge the meetings of the Board (or any committee thereof) and the nominees of the Purchaser appointed on the Board in accordance with Issuer Initial Consideration payable under Clause 6.2 shall resign with immediate effect5.
Appears in 1 contract
Sources: Mortgage Sale Agreement
Completion. 5.1. Subject to the conditions set out in Clauses 3.1, 3.2 and 3.3, 6.1 Completion shall take place on the Completion DateDate at the offices of ▇▇▇▇▇▇▇ & Co at Ashoka Estate, 12th Floor, ▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇▇ – ▇▇▇▇▇▇, ▇▇▇▇▇ or at such other location or date as may be agreed in writing between the Purchaser and the Sellers.
5.2. 6.2 At Completion, each Group Company shall undertake the actions listed in Part 1 of Schedule 3 (Completion Arrangements), the Purchaser shall undertake the actions listed in Part 2 of Schedule 3 (Completion Arrangements) and each Seller shall undertake the actions listed in Part 3 of Schedule 3 (Completion Arrangements), and each Party shall undertake any other actions as may be agreed in writing between any Seller and the Purchaser on the date hereof.
6.3 If there is a breach of Clause 6.2 and/or Schedule 3 (Completion Arrangements) on the Completion Date, the Purchaser, in the case of non-compliance by a Seller or a Group Company, or the Sellers in the case of non-compliance by the Purchaser, have the right, by written notice to the other Parties on the date on which Completion would otherwise have taken place, to require the Parties to:
(a) defer Completion to a date no later than the Longstop Date (with the provisions of this Clause 6 applying to Completion as so deferred);
(b) proceed to Completion as far as practicable (without limiting its rights and remedies under this Agreement); or
(c) treat this Agreement as terminated with immediate effect, provided that the accrued rights and obligations of the Parties under this Agreement (but excluding any right of the Purchaser to claim damages for breach of a Sellers’ Warranty or a Seller’s obligations under Clause 5 (Pre-Completion Obligations)) and their rights and obligations under the Continuing Provisions shall continue to subsist.
6.4 The obligations of each of the Parties under in this Clause 5.3 below 6 are interdependent of on each other. The Completion shall not occur unless all of the obligations specified or referred to in this Clause 5.3, have been simultaneously complied with 6 and are fully effective.
5.3. On the Completion Date:
(i) Subject to deductions pursuant to Clause 4.4, the Purchaser shall remit the Purchase Consideration (in immediately available funds) to the Seller’s Bank Account.
(ii) The Seller shall (a) provide to its Depository Participant duly executed DP Instructions in the prescribed form for the transfer of the Sale Shares to the Demat Account of the Purchaser (details of which shall be provided to the Seller in writing as soon as practicable after the Execution Date); (b) procure its Depository Participant to duly acknowledge such DP Instructions; (c) deliver a copy of such acknowledgement to the Purchaser; and (d) use best endeavours to procure credit of the Sale Shares to the Demat Account of the Purchaser.
(iii) The Seller shall, to the extent it is able to do so through exercise of its voting rights, procure that a Board meeting is held at which the following business shall be transacted:
(a) the appointment of directors nominated by the Purchaser on the Board shall be approved; and
(b) an extra-ordinary general meeting of the shareholders of the Company to approve the matters all actions set out in Clause 5.3(iii)(aPart 1 to Part 3 (both inclusive) and the amendment of the Articles of Association shall be convened.
5.4Schedule 3 (Completion Arrangements) have been completed. This Agreement may be terminated on or prior to the Completion Date as follows:
(i) By the mutual written consent of the Purchaser and the Seller.
(ii) By the Seller, upon written notice to the Purchaser, if the conditions set out in Clauses 3.1 and 3.3 have not been satisfied (or satisfied subject only to Completion where applicable) or waived (where applicable) on or before 270 (two hundred seventy) days from the Execution Date or such later date as may be mutually agreed between the Parties in writing (“Long Stop Date”); provided that the Seller shall not be entitled to terminate this Agreement pursuant to this Clause 5.4(ii) if Seller’s breach of this Agreement has prevented or materially delayed the consummation of the Transactions (which term for the purposes of this Clause 5.4(ii) shall not include the Financing);
(iii) By the Purchaser, upon written notice to the Seller, if the conditions set out in Clauses 3.2 and 3.3 have not been satisfied (or satisfied subject only to Completion where applicable) or waived (where applicable) on or before the Long Stop Date; provided that the Purchaser shall not be entitled to terminate this Agreement pursuant to this Clause 5.4(iii) if Purchaser’s breach of this Agreement has prevented or materially delayed the consummation of the Transactions.
(iv) By the Seller (if the Seller is not in material breach of the Seller Warranties, covenants or agreements The actions contemplated under this Agreement so as to cause any of the conditions set forth in Clause 3.2 and/or 3.3(iand Schedule 3 (Completion Arrangements) not to be satisfied), upon written notice consummated at Completion shall be deemed to the Purchaser, if there has been a material inaccuracy of any statement or warranty, or any unremedied material breach of a covenant or other agreement, of the Purchaser contained in this Agreement, which violation, breach or inaccuracy would cause any of the conditions set forth in Clause 3.1 and/or 3.3 not occur simultaneously and no such action shall be deemed to be satisfied as of the Completion Date, and consummated unless all such violation, breach or inaccuracy has not actions have been waived by the Seller or cured by the Purchaser within 20 (twenty) Business Days after receipt by the Purchaser of written notice thereof from the Seller or is not reasonably capable of being cured prior to the Long Stop Dateduly consummated.
(v) By the Purchaser (if the Purchaser is not in material breach of the Purchaser Warranties, covenants or agreements under this Agreement so as to cause any of the conditions set forth in Clause 3.1 and/or 3.3 not to be satisfied), upon written notice to the Seller, if there has been a material inaccuracy of any statement or warranty, or any unremedied material breach of a covenant or other agreement, of the Seller contained in this Agreement, which violation, breach or inaccuracy would cause any of the conditions set forth in Clauses 3.2 and/or 3.3(i) not to be satisfied as of the Completion Date, and such violation, breach or inaccuracy has not been waived by the Purchaser or cured by the Seller within 20 (twenty) Business Days after receipt by the Seller of written notice thereof from the Purchaser or is not reasonably capable of being cured prior to the Long Stop Date.
(vi) By the Seller or the Purchaser, upon written notice to the other, if a court of competent jurisdiction or any other Governmental Authority shall have issued a final, non-appealable order preventing or otherwise prohibiting the consummation of the Transactions.
5.5. If this Agreement is terminated prior to Completion in accordance with Clause 5.4 above,
(i) this Agreement shall become void and of no further force and effect; provided, however, that the provisions of this Clause 5.5 and Clauses 1 (Definitions and Interpretation), 11 (Announcements and Confidentiality), 12 (Notices), 13 (Governing Law, Disputes and Jurisdiction), 14.1 (Entire Agreement), 14.6 (Variation), 14.7 (No Assignment), 14.8 (Waiver), 14.9 (Severability), 14.10 (Supersession) and 14.11 (Expenses) shall survive the termination of this Agreement indefinitely and that nothing herein shall relieve any Party from any liability for fraud or any breach of the provisions of this Agreement prior to such termination; and
(ii) if applicable, the Observer shall no longer be entitled to attend the meetings of the Board (or any committee thereof) and the nominees of the Purchaser appointed on the Board in accordance with Clause 6.2 shall resign with immediate effect.
Appears in 1 contract
Sources: Share Purchase Agreement (Laureate Education, Inc.)
Completion. 5.1. 7.1 Subject to the conditions set out in Clauses 3.1, 3.2 and 3.3any postponement under clauses 5.5 or 7.3, Completion shall take place on at the Completion Date.
5.2. The obligations of each London offices of the Parties under Clause 5.3 below are interdependent of each other. The Completion shall not occur unless all of the obligations specified in Clause 5.3, have been simultaneously complied with and are fully effective.
5.3. On the Completion Date:
(i) Subject to deductions pursuant to Clause 4.4, the Purchaser shall remit the Purchase Consideration (in immediately available funds) to the SellerBuyer’s Bank Account.
(ii) The Seller shall (a) provide to its Depository Participant duly executed DP Instructions in the prescribed form for the transfer of the Sale Shares to the Demat Account of the Purchaser (details of which shall be provided to the Seller in writing as soon as practicable after the Execution Date); (b) procure its Depository Participant to duly acknowledge such DP Instructions; (c) deliver a copy of such acknowledgement to the Purchaser; and (d) use best endeavours to procure credit of the Sale Shares to the Demat Account of the Purchaser.
(iii) The Seller shall, to the extent it is able to do so through exercise of its voting rights, procure that a Board meeting is held Solicitors at which the following business shall be transacted:
(a) the appointment of directors nominated by the Purchaser 11 a.m. on the Board shall be approved; and
(b) an extra-ordinary general meeting of the shareholders of the Company to approve the matters set out in Clause 5.3(iii)(a) and the amendment of the Articles of Association shall be convened.
5.4. This Agreement may be terminated on 31 December 2019 or prior to the Completion Date as follows:
(i) By the mutual written consent of the Purchaser and the Seller.
(ii) By the Seller, upon written notice to the Purchaser, if the conditions set out in Clauses 3.1 and 3.3 have not been satisfied (or satisfied subject only to Completion where applicable) or waived (where applicable) on or before 270 (two hundred seventy) days from the Execution Date or such later date as may be mutually agreed between the Parties in writing (“Long Stop Date”); provided that the Seller shall not be entitled to terminate this Agreement pursuant to this Clause 5.4(ii) if Seller’s breach of this Agreement has prevented or materially delayed the consummation of the Transactions (which term for the purposes of this Clause 5.4(ii) shall not include the Financing);
(iii) By the Purchaser, upon written notice to the Seller, if the conditions set out in Clauses 3.2 and 3.3 have not been satisfied (or satisfied subject only to Completion where applicable) or waived (where applicable) on or before the Long Stop Date; provided that the Purchaser shall not be entitled to terminate this Agreement pursuant to this Clause 5.4(iii) if Purchaser’s breach of this Agreement has prevented or materially delayed the consummation of the Transactions.
(iv) By the Seller (if the Seller GM is adjourned and the Condition is not in material breach of satisfied by such date) at 11 a.m. on the Seller Warranties, covenants or agreements under this Agreement so as to cause any of the conditions set forth in Clause 3.2 and/or 3.3(i) not to be satisfied), upon written notice to the Purchaser, if there has been a material inaccuracy of any statement or warranty, or any unremedied material breach of a covenant or other agreement, of the Purchaser contained in this Agreement, which violation, breach or inaccuracy would cause any of the conditions set forth in Clause 3.1 and/or 3.3 not to be satisfied as of the Completion Date, and such violation, breach or inaccuracy has not been waived by the Seller or cured by the Purchaser within 20 (twenty) date that is three Business Days after receipt by the Purchaser of written notice thereof from Condition is satisfied, or at such other time and place as the parties may agree in writing.
7.2 At Completion, the Seller or is not reasonably capable of being cured prior to and the Long Stop DateBuyer shall comply with their respective obligations set out in Schedule 3.
(v) By the Purchaser (if the Purchaser is not in material breach of the Purchaser Warranties, covenants or agreements under this Agreement so as to cause any of the conditions set forth in Clause 3.1 and/or 3.3 not to be satisfied), upon written notice to the Seller, if there has been a material inaccuracy of any statement or warranty, or any unremedied material breach of a covenant or other agreement, of the Seller contained in this Agreement, which violation, breach or inaccuracy would cause any of the conditions set forth in Clauses 3.2 and/or 3.3(i) not to be satisfied as of the Completion Date, and such violation, breach or inaccuracy has not been waived by the Purchaser or cured by the Seller within 20 (twenty) Business Days after receipt by the Seller of written notice thereof from the Purchaser or is not reasonably capable of being cured prior to the Long Stop Date.
(vi) By 7.3 If either the Seller or the PurchaserBuyer (referred to in this clause 7.3 as the “defaulting party”) does not or is unable to fulfil any of its respective material obligations set out in Schedule 3 at the time when Completion is due to take place under clause 7.1, upon written the other (referred to in this clause 7.3 as the “non-defaulting party”) may, without prejudice and in addition to any other right or remedy the non-defaulting party may have, by notice to the otherdefaulting party:
7.3.1 postpone Completion to a date falling not more than 10 Business Days after the date on which Completion was otherwise due to take place; or
7.3.2 elect to proceed to Completion, if a court in which case the defaulting party shall be obliged to fulfil those obligations set out in Schedule 3 which the defaulting party is then able to fulfil and to fulfil the remaining obligations on or before any later date specified for the purpose in the notice; or
7.3.3 (having already given notice under clause 7.3.1 and the period of competent jurisdiction or postponement so notified having elapsed without each unfulfilled obligation in question having been fulfilled in all material respects) elect not to complete the sale and purchase of the Shares.
7.4 If Completion is postponed on any other Governmental Authority occasion under clause 7.3.1, this clause 7.3 shall have issued a final, apply with respect to each occasion to which it is so postponed.
7.5 If the non-appealable order preventing or otherwise prohibiting defaulting party elects not to complete the consummation sale and purchase of the Transactions.
5.5. If this Agreement is terminated prior to Completion Shares in accordance with Clause 5.4 above,
(i) clause 7.3.3 then this Agreement shall become void and terminate at the time notice of no further force and effect; provided, however, that the provisions of this Clause 5.5 and Clauses 1 (Definitions and Interpretation), 11 (Announcements and Confidentiality), 12 (Notices), 13 (Governing Law, Disputes and Jurisdiction), 14.1 (Entire Agreement), 14.6 (Variation), 14.7 (No Assignment), 14.8 (Waiver), 14.9 (Severability), 14.10 (Supersession) and 14.11 (Expenses) shall survive the termination of this Agreement indefinitely and that nothing herein shall relieve any Party from any liability for fraud or any breach of the provisions of this Agreement prior to such termination; and
(ii) if applicable, the Observer shall no longer be entitled to attend the meetings of the Board (or any committee thereof) and the nominees of the Purchaser appointed on the Board election is given in accordance with Clause 6.2 shall resign with immediate effectclause 7.3.3.
Appears in 1 contract
Sources: Sale Agreement
Completion. 5.1. Subject to the conditions set out in Clauses 3.1, 3.2 and 3.3, 4.1 Completion shall take place on at the Completion Dateoffices of the Purchasers' Solicitors immediately following the passing of the special resolution and extraordinary resolutions referred to in clause 2.
5.2. The obligations 4.2 On Completion, the Vendors shall deliver to AHI:-
(a) transfers in common form relating to the Ordinary Shares and the Deferred Shares, duly executed in favour of AHI, together with the share certificates relating thereto;
(b) resignations IN THE AGREED FORM of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ Hustler and ▇▇▇▇ ▇▇▇▇▇ from their offices as director and/or secretary and any office or employment of or by the Company or the Subsidiaries;
(c) the common seals, certificates of incorporation and statutory books of the Company and DSL Holdings Limited;
(d) transfers relating to each share in the Subsidiaries not registered in the name of the Company or a Subsidiary, duly executed in favour of AHI or as it may direct;
(e) share certificates (or the equivalent evidence of title to the relevant shares in each jurisdiction) relating to all of the issued shares of each of the Parties under Clause 5.3 below are interdependent Subsidiaries;
(f) a deed of each other. The Completion shall not occur unless all release IN THE AGREED FORM (releasing the Company and the Subsidiaries from any liability whatsoever (actual or contingent) which may be owing to the Institutional Vendors by the Company or any of the obligations specified in Clause 5.3Subsidiaries), have been simultaneously complied with and are fully effective.duly executed by each of the Institutional Vendors;
5.3. On (g) a Registration Rights Agreement IN THE AGREED FORM, duly executed by each of the Completion Date:Vendors;
(h) Investment Letters IN THE AGREED FORM, duly executed by each of the Vendors;
(i) Subject a Termination Agreement IN THE AGREED FORM, duly executed by each of the Vendors and the other parties to deductions pursuant the agreements to Clause 4.4which it relates;
(j) forms of proxy IN THE AGREED FORM, duly executed by each of the Vendors, appointing any director for the time being of AHI as the Vendors' proxy for the purposes of exercising the voting rights attaching to the Shares, with power to consent to short notice of any general meeting of the shareholders or any class thereof;
(k) an Escrow Agreement IN THE AGREED FORM, duly executed by each of the Warrantors;
(l) service agreements IN THE AGREED FORM, duly executed by each of ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ and ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇;
(m) letters IN THE AGREED FORM (amending their respective service agreements), duly executed by each of ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ Beat, ▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇ and ▇▇▇▇▇ ▇▇▇▇▇; and
(n) a copy of the option agreement referred to at clause 4.5, duly certified as a true copy by the Management Vendors' Solicitors, and the Institutional Vendors shall deliver to AHL transfers in common form relating to the Preference Shares, duly executed in favour of AHL, together with the share certificates relating thereto.
4.3 On or prior to Completion (and in any event prior to the taking effect of the resignations of the directors referred to in paragraph (b) of clause 4.2), the Purchaser Vendors shall remit procure the Purchase passing of board resolutions of the Company and each of the Subsidiaries:-
(a) sanctioning for registration (subject where necessary to due stamping) the transfers in respect of any shares referred to in clause 4.2;
(b) appointing ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ and ▇▇▇▇ ▇▇▇▇▇▇▇ to be additional directors of the Company and ▇▇▇ ▇▇▇▇▇▇▇▇ to be an additional director of DSL Holdings Limited; and
(c) appointing ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ to be secretary of each of the Subsidiaries incorporated in England and Wales.
4.4 On Completion, immediately upon compliance by the Vendors with the provisions of clauses 4.2 and 4.3:-
(a) AHI shall:-
(i) allot the Consideration (in immediately available funds) Shares to the Seller’s Bank Account.Vendors, in the respective proportions which the number of Ordinary Shares held by them bears to the total number of Ordinary Shares;
(ii) The Seller shall (a) provide to its Depository Participant duly executed DP Instructions enter the names of the Vendors in the prescribed form for register of members of AHI as the transfer holders of the Sale Shares to the Demat Account of the Purchaser (details of which shall be provided to the Seller in writing as soon as practicable after the Execution Date); (b) procure its Depository Participant to duly acknowledge such DP Instructions; (c) deliver a copy of such acknowledgement to the Purchaser; and (d) use best endeavours to procure credit of the Sale Shares to the Demat Account of the Purchaser.Consideration Shares;
(iii) The Seller shalldeliver to ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ in New York (on behalf of the Vendors) duly executed stock certificates in respect of the Consideration Shares, save as envisaged pursuant to the extent it is able Escrow Agreement IN THE AGREED FORM;
(iv) effect the listing of the Consideration Shares on the American Stock Exchange;
(v) deliver to do so through exercise the Management Vendors' Solicitors and the Institutional Vendors' Solicitors (on behalf of, respectively, the Management Vendors and the Institutional Vendors):-
(A) a counterpart of its voting rightsthe Registration Rights Agreement IN THE AGREED FORM, duly executed by AHI;
(B) a counterpart of the Escrow Agreement IN THE AGREED FORM, duly executed by AHI;
(C) a certified copy of a duly executed Certificate of Good Standing in respect of AHI IN THE AGREED FORM;
(D) a certificate (which certificate shall in the absence of manifest error be conclusive):-
(I) stating the number of the Consideration Shares; and
(II) attaching a print-out of Bloomberg showing the closing price of a share of common stock of par value $0.01 in the capital of AHI for the 20 consecutive trading days ended five consecutive trading days prior to 1 April 1997 (that is, ended on (and including) 24 March 1997); and
(E) a copy of the lock-up letter agreement made by way of letter dated 18 January 1996 from ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ to Kanders Florida Holdings, Inc; and
(vi) procure that a Board meeting is held at which the following business shall be transacted:
(a) Company forthwith repays the appointment of directors nominated by the Purchaser on the Board shall be approvedRothschild Loan; and
(b) an extra-ordinary general meeting AHL shall pay to the Institutional Vendors Solicitors the sum of (pound)4,635,000, in full and final settlement of the shareholders of consideration due by AHL to the Company to approve Institutional Vendors for the matters set out in Clause 5.3(iii)(a) and the amendment of the Articles of Association Preference Shares, which sum shall be convenedpaid by telegraphic transfer to National Westminster Bank plc, City of London office, ▇▇ ▇▇▇ ▇▇▇▇▇, ▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇, sort code: 60-00-01, account no: ▇▇▇▇▇▇▇▇.
5.4. This Agreement may be terminated on or prior to the Completion Date as follows:
(i) By the mutual written consent of the Purchaser and the Seller.
(ii) By the Seller, upon written notice to the Purchaser, if the conditions set out in Clauses 3.1 and 3.3 have not been satisfied (or satisfied subject only to Completion where applicable) or waived (where applicable) on or before 270 (two hundred seventy) days from the Execution Date or such later date as may be mutually agreed between the Parties in writing (“Long Stop Date”); provided that the Seller shall not be entitled to terminate this Agreement pursuant to this Clause 5.4(ii) if Seller’s breach of this Agreement has prevented or materially delayed the consummation of the Transactions (which term for the purposes of this Clause 5.4(ii) shall not include the Financing);
(iii) By the Purchaser, upon written notice to the Seller, if the conditions set out in Clauses 3.2 and 3.3 have not been satisfied (or satisfied subject only to Completion where applicable) or waived (where applicable) on or before the Long Stop Date; provided that the Purchaser shall not be entitled to terminate this Agreement pursuant to this Clause 5.4(iii) if Purchaser’s breach of this Agreement has prevented or materially delayed the consummation of the Transactions.
(iv) By the Seller (if the Seller is not in material breach of the Seller Warranties, covenants or agreements under this Agreement so as to cause any of the conditions set forth in Clause 3.2 and/or 3.3(i) not to be satisfied), upon written notice to the Purchaser, if there has been a material inaccuracy of any statement or warranty, or any unremedied material breach of a covenant or other agreement, of the Purchaser contained in this Agreement, which violation, breach or inaccuracy would cause any of the conditions set forth in Clause 3.1 and/or 3.3 not to be satisfied as of the Completion Date, and such violation, breach or inaccuracy has not been waived by the Seller or cured by the Purchaser within 20 (twenty) Business Days after receipt by the Purchaser of written notice thereof from the Seller or is not reasonably capable of being cured prior to the Long Stop Date.
(v) By the Purchaser (if the Purchaser is not in material breach of the Purchaser Warranties, covenants or agreements under this Agreement so as to cause any of the conditions set forth in Clause 3.1 and/or 3.3 not to be satisfied), upon written notice to the Seller, if there has been a material inaccuracy of any statement or warranty, or any unremedied material breach of a covenant or other agreement, of the Seller contained in this Agreement, which violation, breach or inaccuracy would cause any of the conditions set forth in Clauses 3.2 and/or 3.3(i) not to be satisfied as of the Completion Date, and such violation, breach or inaccuracy has not been waived by the Purchaser or cured by the Seller within 20 (twenty) Business Days after receipt by the Seller of written notice thereof from the Purchaser or is not reasonably capable of being cured prior to the Long Stop Date.
(vi) By the Seller or the Purchaser, upon written notice to the other, if a court of competent jurisdiction or any other Governmental Authority shall have issued a final, non-appealable order preventing or otherwise prohibiting the consummation of the Transactions.
5.5. If this Agreement is terminated prior to Completion in accordance with Clause 5.4 above,
(i) this Agreement shall become void and of no further force and effect; provided, however, that the provisions of this Clause 5.5 and Clauses 1 (Definitions and Interpretation), 11 (Announcements and Confidentiality), 12 (Notices), 13 (Governing Law, Disputes and Jurisdiction), 14.1 (Entire Agreement), 14.6 (Variation), 14.7 (No Assignment), 14.8 (Waiver), 14.9 (Severability), 14.10 (Supersession) and 14.11 (Expenses) shall survive the termination of this Agreement indefinitely and that nothing herein shall relieve any Party from any liability for fraud or any breach of the provisions of this Agreement prior to such termination; and
(ii) if applicable, the Observer shall no longer be entitled to attend the meetings of the Board (or any committee thereof) and the nominees of the Purchaser appointed on the Board in accordance with Clause 6.2 shall resign with immediate effect.
Appears in 1 contract
Sources: Agreement for the Sale and Purchase of Shares (Armor Holdings Inc)
Completion. 5.1. 5.1 Subject to the conditions set out in Clauses 3.1, 3.2 and 3.3provisions of Clause 4, Completion shall take place at the offices of the Purchaser's Solicitors at 9.00am on the Completion DateDate or at such other place and time as shall be mutually agreed, where all (and not some only) of the events described in this Clause 5 shall occur.
5.2. The obligations 5.2 At Completion, the Vendor shall deliver or cause to be delivered to the Purchaser:
(a) duly executed instrument of transfer in respect of the Sale Shares in favour of the Purchaser (or its nominees) accompanied by the relevant share certificates in respect of the Sale Shares;
(b) certified true copies of the resolutions passed by the board of directors of the Vendor in the form set out in Appendix K;
(i) approving the sale of the Sale Shares to the Purchaser in the terms set out in this Agreement; and
(ii) authorising the execution of the instrument of transfer in respect of the Sale Shares in favour of the Purchaser and giving authority to execute the instrument of transfer on behalf of the Vendor to the party who executed it; and
(iii) authorising the execution and delivery by the Vendor of each of this Agreement, the Parties under Clause 5.3 below are interdependent Tenancy Agreement, the Employment Contracts, the Subcontract, the Services Agreement, the Shareholders' Agreement and the Deed of each other. The Completion shall not occur unless all Indemnity;
(c) certified true copies of the obligations specified resolutions in Clause 5.3, have been simultaneously complied with and are fully effective.
5.3. On the Completion Dateform set out in Appendix J passed by the board of directors of the Company:
(i) Subject to deductions pursuant to Clause 4.4, the Purchaser shall remit the Purchase Consideration (in immediately available funds) to the Seller’s Bank Account.
(ii) The Seller shall (a) provide to its Depository Participant duly executed DP Instructions in the prescribed form for approving the transfer of the Sale Shares to the Demat Account Purchaser, or the transfer of the Purchaser (details of which shall be provided to the Seller in writing as soon as practicable after the Execution Date); (b) procure its Depository Participant to duly acknowledge such DP Instructions; (c) deliver a copy of such acknowledgement to the Purchaser; and (d) use best endeavours to procure credit all or any part of the Sale Shares to a nominee appointed by the Demat Account Purchaser;
(ii) approving the entering in the register of members of the Purchaser.Company, the name of the Purchaser or that of its nominee as holder of the Sale Shares, upon the presentation of the instrument of transfer duly stamped in accordance with the Stamp Act; and
(iii) The Seller shall, authorising the issue of the new share certificate in respect of the Sale Shares in favour of the Purchaser or such nominee of the Purchaser and the cancellation of the existing share certificates for the Sale Shares.
(d) a duly completed and executed Stamp Duty Form - PDS 6 together with the Audited Accounts of the Company;
(e) such waivers or consents or other documents as may be required to give to the extent it is able Purchaser good title to do so through exercise the Sale Shares and to enable the Purchaser or its nominees to be registered as the holders of its voting rights, procure that a Board meeting is held at which any of the following business shall be transacted:Sale Shares;
(af) all the appointment of directors nominated by the Purchaser on the Board shall be approved; and
statutory and other books and records (bincluding financial records) an extra-ordinary general meeting of the shareholders duly written and updated of the Company and their respective certificate(s) of incorporation, current business registration certificate(s) (if applicable) and common seal(s) and any other papers, records and documents of the Company;
(g) deeds executed by the Vendor confirming that the Vendor has no claim against the Company and if there are any claims that the Vendor shall release and disclaim all their rights to approve such claims, which letter shall be in the matters form set out in Clause 5.3(iii)(aAppendix B;
(h) execute and deliver to the amendment of Purchaser a certificate (the Articles of Association "Vendor's Completion Certificate") which shall be convened.
5.4. This Agreement may be terminated on or prior to in the Completion Date as followsform set out in Appendix P, setting forth the Vendor's representations and warranties that:
(i) By the mutual written consent each of the Purchaser and Warranties in Schedule 6 was accurate in all respects as of the Seller.date of this Agreement;
(ii) By the Seller, upon written notice to the Purchaser, if the conditions set out in Clauses 3.1 and 3.3 have not been satisfied (or satisfied subject only to Completion where applicable) or waived (where applicable) on or before 270 (two hundred seventy) days from the Execution Date or such later date as may be mutually agreed between the Parties in writing (“Long Stop Date”); provided that the Seller shall not be entitled to terminate this Agreement pursuant to this Clause 5.4(ii) if Seller’s breach of this Agreement has prevented or materially delayed the consummation each of the Transactions (which term for Warranties in Schedule 6 is accurate in all respects as of the purposes of this Clause 5.4(ii) shall not include Completion Date as if made on the Financing)Completion Date;
(iii) By each of the Purchaser, upon written notice to the Seller, if the conditions set out in Clauses 3.2 covenants and 3.3 have not been satisfied (or satisfied subject only to Completion where applicable) or waived (where applicable) on or before the Long Stop Date; provided obligations that the Purchaser shall not be entitled Vendor is required to terminate this Agreement have complied with or performed pursuant to this Clause 5.4(iii) if Purchaser’s breach of this Agreement at or prior to Completion has prevented or materially delayed the consummation of the Transactions.been duly complied with and performed in all respects;
(iv) By the Seller (if the Seller is not in material breach of the Seller Warranties, covenants or agreements under this Agreement so as to cause any each of the conditions set forth in Clause 3.2 and/or 3.3(i) not to be satisfied), upon written notice to the Purchaser, if there 4.1 has been a material inaccuracy of any statement or warranty, or any unremedied material breach of a covenant or other agreement, of the Purchaser contained satisfied in this Agreement, which violation, breach or inaccuracy would cause any of the conditions set forth in Clause 3.1 and/or 3.3 not to be satisfied as of the Completion Date, and such violation, breach or inaccuracy has not been waived by the Seller or cured by the Purchaser within 20 (twenty) Business Days after receipt by the Purchaser of written notice thereof from the Seller or is not reasonably capable of being cured prior to the Long Stop Date.all respects; and
(v) By the Purchaser (if the Purchaser Vendor is not aware of any matter or thing which is in material breach of the Purchaser Warranties, covenants or agreements under this Agreement so as to cause inconsistent with any of the conditions set forth Warranties in Clause 3.1 and/or 3.3 not to be satisfied), upon written notice to the Seller, if there has been a material inaccuracy of any statement or warranty, or any unremedied material breach of a covenant or other agreement, of the Seller contained in this Agreement, which violation, breach or inaccuracy would cause any of the conditions set forth in Clauses 3.2 and/or 3.3(i) not to be satisfied as of the Completion Date, and such violation, breach or inaccuracy has not been waived by the Purchaser or cured by the Seller within 20 (twenty) Business Days after receipt by the Seller of written notice thereof from the Purchaser or is not reasonably capable of being cured prior to the Long Stop Date.
(vi) By the Seller or the Purchaser, upon written notice to the other, if a court of competent jurisdiction or any other Governmental Authority shall have issued a final, non-appealable order preventing or otherwise prohibiting the consummation of the Transactions.
5.5. If this Agreement is terminated prior to Completion in accordance with Clause 5.4 above,Schedule 6;
(i) this the Deed of Indemnity duly executed by the Vendor;
(j) the Tenancy Agreement shall become void duly executed by the Vendor and the Company;
(k) the Employment Contracts duly executed by the Company and each of the Key Employees;
(l) the Subcontract duly executed by the Company and the Vendor;
(m) the Services Agreement duly executed by the Company and the Vendor; and
(n) cause such persons as the Purchaser may nominate to be validly appointed as directors of the Company and upon such appointment forthwith cause the Directors other than the Continuing Directors and the company secretary of the Company to resign from their respective offices, each delivering to the Purchaser a letter addressed to the Company acknowledging that the person so resigning has no further force claim outstanding for compensation or otherwise against the Company, and effect; provided, howeverif there are any claims, that they shall release and disclaim all their rights to such claims, which letter shall be in the form set out in Appendix A; and
(o) evidence that the Vendor has procured the revocation of all authorities to the bankers of the Company relating to bank accounts and procure the giving of authority to such persons as the Purchaser may nominate to operate the same;
(p) a document signed by the Vendor confirming that at Completion the Vendor has been repaid or has discharged in full all Shareholder's Loan owed by the Company to the Vendor or vice versa.
5.3 At Completion, and upon compliance with the provisions set out in Clauses 2.2 and 5.2, the Purchaser shall:
(a) deliver to the Company:
(i) an unconditional application in writing for the allotment to the Purchaser of this Clause 5.5 and Clauses 1 (Definitions and Interpretation), 11 (Announcements and Confidentiality), 12 (Notices), 13 (Governing Law, Disputes and Jurisdiction), 14.1 (Entire Agreement), 14.6 (Variation), 14.7 (No Assignment), 14.8 (Waiver), 14.9 (Severability), 14.10 (Supersession) and 14.11 (Expenses) shall survive 191,025 Shares at the termination premium of this Agreement indefinitely and that nothing herein shall relieve any Party from any liability approximately RM54.55 per share for fraud or any breach a total amount of the provisions of this Agreement prior to such terminationSubscription Share Consideration, in the form set out in Appendix L; and
(ii) if applicable, the Observer shall no longer be entitled to attend the meetings part of the Board (or any committee thereof) and Subscription Shares Consideration in the nominees amount stated in Clause 3.3 of this Agreement in favour of the Purchaser appointed on Company (whose receipt shall be an absolute discharge therefor) either by bankers' draft or by telegraphic transfer into the Board in accordance with Clause 6.2 shall resign with immediate effect.designated bank account of the Company,
Appears in 1 contract
Sources: Share Purchase and Subscription Agreement (Asia Online LTD)
Completion. 5.1. Subject to the conditions set out in Clauses 3.1, 3.2 and 3.3, 6.1 Completion shall take place on the Completion Date.
5.2. The obligations of each date, at the time and/or place within 5 days after the fulfilment or waiver (as the case may be) of the Parties under conditions precedent set out in Clause 5.3 below are interdependent of each other. The Completion shall 3.1 at which time all (but not occur unless all part only) of the obligations specified in Clause 5.3, have been simultaneously complied with and are fully effective.
5.3. On the Completion Date:
(i) Subject to deductions pursuant to Clause 4.4, the Purchaser shall remit the Purchase Consideration (in immediately available funds) to the Seller’s Bank Account.
(ii) The Seller shall (a) provide to its Depository Participant duly executed DP Instructions in the prescribed form for the transfer of the Sale Shares to the Demat Account of the Purchaser (details of which shall be provided to the Seller in writing as soon as practicable after the Execution Date); (b) procure its Depository Participant to duly acknowledge such DP Instructions; (c) deliver a copy of such acknowledgement to the Purchaser; and (d) use best endeavours to procure credit of the Sale Shares to the Demat Account of the Purchaser.
(iii) The Seller shall, to the extent it is able to do so through exercise of its voting rights, procure that a Board meeting is held at which the following business shall be transacted:
(a) the appointment of directors nominated by the Purchaser on the Board Vendor shall be approved; and
(b) an extra-ordinary general meeting of the shareholders of the Company to approve the matters set out in Clause 5.3(iii)(a) and the amendment of the Articles of Association shall be convened.
5.4. This Agreement may be terminated on or prior deliver to the Completion Date as followsPurchaser:
(i) By the mutual written consent instrument of transfer and sold contract note in respect of the Purchaser and Sale Share duly executed by the Seller.Vendor in favour of the Purchaser;
(ii) By the Seller, upon written notice to the Purchaser, if the conditions set out in Clauses 3.1 and 3.3 have not been satisfied (or satisfied subject only to Completion where applicable) or waived (where applicable) on or before 270 (two hundred seventy) days from the Execution Date or such later date as may be mutually agreed between the Parties in writing (“Long Stop Date”); provided that the Seller shall not be entitled to terminate this Agreement pursuant to this Clause 5.4(ii) if Seller’s breach of this Agreement has prevented or materially delayed the consummation original of the Transactions existing share certificate in respect of the Sale Share issued in the name of the Vendor (which term for the purposes of this Clause 5.4(ii) shall not include the Financingif applicable);
(iii) By original of the new share certificate in respect of the Sale Share issued in the name of the Purchaser (if applicable);
(iv) a certified copy (certified as a true copy by any director of the Vendor) of the resolutions of the board of directors of the Vendor approving and authorising the transactions under this Agreement;
(v) a certified copy (certified as a true copy by any director of the Company) of the resolutions of the board of directors of the Company approving and authorising the followings: (i) any documents to be entered into by the Company and the execution of the same pursuant to or as contemplated by this Agreement; (ii) the transfer the Sale Share and registration of the Purchaser or its nominee as the registered holder of the Sale Share; and (iii) such other matters as the Purchaser may reasonably require to be dealt with and resolved upon to give effect to this Agreement;
(vi) all Corporate Records, websites, domain names, cheque books, statements, passbooks of the accounts of all company(ies) in the Group;
(vii) the log-in details and passwords of all email accounts, Microsoft accounts, online platforms, online drives, mandatory provident fund accounts, company websites and communication platforms maintained by the Group;
(viii) (if so requested and specified by the Purchaser) the duly signed resignation letters of the directors, upon written notice secretary and auditor (if appointed) of the company(ies) in the Group with effect from the Completion Date with acknowledgement under seal executed by him/her/it and to the Sellereffect that he/she/it has no claim against any company(ies) in the Group for loss of office or otherwise and that he/she/it has no entitlement to claim any remuneration for such office or compensation for wrongful dismissal or to payment for redundancy or in respect of any other moneys or benefits due to him/her/it from any company(ies) in the Group arising out of or in connection with the resignation;
(ix) all books of records, accounts, financial statements, tax computation, documents, articles, things, and instruments in relation to the affairs of the Company in the Vendor’s possession; and
(x) (if so requested by the conditions set out Purchaser) the appropriate forms amending the mandates duly signed by the director(s) and/or authorized signatories thereof for giving to the relevant banks for which any company(ies) in Clauses 3.2 the Group has maintained account(s).
(b) against compliance with Clause 6.1(a) by the Vendor, the Purchaser shall deliver to the Vendor cashier’s orders issued by a licensed bank in Hong Kong or solicitors’ cheque(s) drawn on a licensed bank in Hong Kong in the amount of the Consideration and 3.3 have made payable to the Vendor or effect an electronic fund transfer in the amount of the Consideration to the designated bank account of the Vendor, which may be an account held by the Vendor or its nominee as notified in writing by the Vendor in accordance with Clause 2.4. Payment into such designated account shall constitute full satisfaction and discharge of the Purchaser’s obligation to pay the Consideration under this Agreement.
6.2 No party shall be obliged to complete the sale and purchase of the Sale Share or perform any obligations under Clause 6.1 unless all the parties hereto comply fully with their obligations and all actions and deliveries under Clause 6.1.
6.3 If either party is unable to or does not been satisfied (or satisfied subject only to Completion where applicable) or waived (where applicable) comply with any of its obligations under Clause 6.1 on or before the Long Stop Date; provided that the Purchaser shall not be entitled to terminate this Agreement pursuant to this Clause 5.4(iii) if Purchaser’s breach of this Agreement has prevented or materially delayed the consummation of the Transactions.
(iv) By the Seller (if the Seller is not in material breach of the Seller Warranties, covenants or agreements under this Agreement so as to cause any of the conditions set forth in Clause 3.2 and/or 3.3(i) not to be satisfied), upon written notice to the Purchaser, if there has been a material inaccuracy of any statement or warranty, or any unremedied material breach of a covenant or other agreement, of the Purchaser contained in this Agreement, which violation, breach or inaccuracy would cause any of the conditions set forth in Clause 3.1 and/or 3.3 not to be satisfied as of the Completion Date, and such violation, breach or inaccuracy has the other non-defaulting party may defer Completion to a date not been waived by the Seller or cured by the Purchaser within 20 more than twenty (twenty28) Business Days days after receipt by the Purchaser of written notice thereof from the Seller or is not reasonably capable of being cured prior to the Long Stop Date.
(v) By the Purchaser (if the Purchaser is not in material breach of the Purchaser Warranties, covenants or agreements under this Agreement so as to cause any of the conditions set forth in Clause 3.1 and/or 3.3 not to be satisfied), upon written notice to the Seller, if there has been a material inaccuracy of any statement or warranty, or any unremedied material breach of a covenant or other agreement, of the Seller contained in this Agreement, which violation, breach or inaccuracy would cause any of the conditions set forth in Clauses 3.2 and/or 3.3(i) not to be satisfied as of the Completion Date, Date (and such violation, breach or inaccuracy has not been waived by the Purchaser or cured by the Seller within 20 (twenty) Business Days after receipt by the Seller of written notice thereof from the Purchaser or is not reasonably capable of being cured prior to the Long Stop Date.
(vi) By the Seller or the Purchaser, upon written notice to the other, if a court of competent jurisdiction or any other Governmental Authority shall have issued a final, non-appealable order preventing or otherwise prohibiting the consummation of the Transactions.
5.5. If this Agreement is terminated prior to Completion in accordance with Clause 5.4 above,
(i) this Agreement shall become void and of no further force and effect; provided, however, so that the provisions of this Clause 5.5 and Clauses 1 (Definitions and Interpretation6.1 shall apply to Completion so deferred), 11 (Announcements and Confidentiality), 12 (Notices), 13 (Governing Law, Disputes and Jurisdiction), 14.1 (Entire Agreement), 14.6 (Variation), 14.7 (No Assignment), 14.8 (Waiver), 14.9 (Severability), 14.10 (Supersession) and 14.11 (Expenses) shall survive the termination of this Agreement indefinitely and that nothing herein shall relieve any Party from any liability for fraud or any breach of the provisions of this Agreement prior to such termination; and
(ii) if applicable, the Observer shall no longer be entitled to attend the meetings of the Board (or any committee thereof) and the nominees of the Purchaser appointed on the Board in accordance with Clause 6.2 shall resign with immediate effect.
Appears in 1 contract
Completion. 5.1. Subject to the conditions set out in Clauses 3.1, 3.2 and 3.3, 6.1 Completion shall take place on the Completion DateDate at the offices of the Purchaser’s Solicitors at 47/▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇ ▇ong.
5.2. The obligations 6.2 At Completion the Seller shall do those things listed in paragraphs 1, 2, 4 and 5 of each Part A (Parties’ obligations) of the Parties under Clause 5.3 below are interdependent of each other. The Schedule 2 (Completion shall not occur unless all of the obligations specified in Clause 5.3, have been simultaneously complied with arrangements) and are fully effective.
5.3. On the Completion Date:
(i) Subject to deductions pursuant to Clause 4.4, the Purchaser shall remit the Purchase Consideration do those things listed in paragraph 3 of Part A (Parties’ obligations) of Schedule 2 (Completion arrangements). Completion shall take place in immediately available fundsaccordance with Part B (General) to the Seller’s Bank Accountof Schedule 2 (Completion arrangements).
(ii) 6.3 The Seller Purchaser shall (a) provide not be obliged to its Depository Participant duly executed DP Instructions in complete the prescribed form for the transfer sale and purchase of the Sale Shares to the Demat Account of the Purchaser (details of which shall be provided to unless the Seller in writing as soon as practicable after complies with the Execution Daterequirements of sub-clause 6.2 and paragraphs 1, 2, 4 and 5 of Part A (Parties’ obligations) of Schedule 2 (Completion arrangements); (b) procure its Depository Participant . The Seller shall not be obliged to duly acknowledge such DP Instructions; (c) deliver a copy of such acknowledgement to complete the Purchaser; sale and (d) use best endeavours to procure credit purchase of the Sale Shares unless the Purchaser complies with the requirements of paragraph 3 of Part A (Parties’ obligations) of Schedule 2 (Completion arrangements).
6.4 Neither party shall be obliged to complete the Demat Account sale and purchase of any of the Purchaser.
(iii) The Seller shall, to the extent it is able to do so through exercise of its voting rights, procure that a Board meeting is held at which the following business shall be transactedSale Shares unless:
(aA) the appointment sale and purchase of directors nominated by all the Purchaser on the Board shall be approvedSale Shares is completed simultaneously; and
(bB) an extra-ordinary general meeting of this Agreement, the shareholders of Kofu SPA, the Company to approve Listco SPA (save for the matters set out in Clause 5.3(iii)(aSecond Completion (as defined under the Listco SPA)) and the amendment Kofu Listco SPA (save for the Second Completion (as defined under the Kofu Listco SPA)) are completed substantially contemporaneously.
6.5 If the obligations of the Articles Seller under sub-clause 6.2 and paragraphs 1, 2, 4 and 5 of Association shall be convened.
5.4. This Agreement may be terminated Part A (Parties’ obligations) of Schedule 2 (Completion arrangements) are not complied with on or prior to the Completion Date as followsDate, the Purchaser may, and if the obligations of the Purchaser under sub-clause 6.2 and paragraph 3 of Part A (Parties’ obligations) of Schedule 2 (Completion arrangements) are not complied with on the Completion Date, the Seller may:
(iA) By defer Completion (so that the mutual written consent provisions of the Purchaser and the Seller.
(ii) By the Seller, upon written notice to the Purchaser, if the conditions set out in Clauses 3.1 and 3.3 have not been satisfied (or satisfied subject only this clause 6 shall apply to Completion where applicable) or waived (where applicable) on or before 270 (two hundred seventy) days from the Execution Date or such later date as may be mutually agreed between the Parties in writing (“Long Stop Date”); provided that the Seller shall not be entitled to terminate this Agreement pursuant to this Clause 5.4(ii) if Seller’s breach of this Agreement has prevented or materially delayed the consummation of the Transactions (which term for the purposes of this Clause 5.4(ii) shall not include the Financingso deferred);
(iiiB) By the Purchaser, upon written notice to the Seller, if the conditions set out in Clauses 3.2 and 3.3 have not been satisfied (or satisfied subject only proceed to Completion where applicableas far as practicable (without limiting its rights under this Agreement); or
(C) or waived (where applicable) on or before the Long Stop Date; provided that the Purchaser shall not be entitled to terminate this Agreement pursuant by notice in writing to this Clause 5.4(iii) if Purchaser’s breach of this Agreement has prevented or materially delayed the consummation of the Transactions.
(iv) By the Seller (if the Seller is not in material breach of the Seller Warranties, covenants or agreements under this Agreement so as to cause any of the conditions set forth in Clause 3.2 and/or 3.3(i) not to be satisfied), upon written notice to the Purchaser, if there has been a material inaccuracy of any statement or warranty, or any unremedied material breach of a covenant or other agreement, of the Purchaser contained in this Agreement, which violation, breach or inaccuracy would cause any of the conditions set forth in Clause 3.1 and/or 3.3 not to be satisfied as of the Completion Date, and such violation, breach or inaccuracy has not been waived by the Seller or cured by the Purchaser within 20 (twenty) Business Days after receipt by the Purchaser of written notice thereof from the Seller or is not reasonably capable of being cured prior to the Long Stop Date.
(v) By the Purchaser (if the Purchaser is not in material breach of the Purchaser Warranties, covenants or agreements under this Agreement so as to cause any of the conditions set forth in Clause 3.1 and/or 3.3 not to be satisfied), upon written notice to the Seller, if there has been a material inaccuracy of any statement or warranty, or any unremedied material breach of a covenant or other agreement, of the Seller contained in this Agreement, which violation, breach or inaccuracy would cause any of the conditions set forth in Clauses 3.2 and/or 3.3(i) not to be satisfied as of the Completion Date, and such violation, breach or inaccuracy has not been waived by the Purchaser or cured by the Seller within 20 (twenty) Business Days after receipt by the Seller of written notice thereof from the Purchaser or is not reasonably capable of being cured prior to the Long Stop Date.
(vi) By the Seller or the Purchaser, upon written notice to as the other, if a court of competent jurisdiction or any other Governmental Authority shall have issued a final, non-appealable order preventing or otherwise prohibiting the consummation of the Transactionscase may be.
5.5. 6.6 If this Agreement is terminated prior to Completion by the Purchaser in accordance with Clause 5.4 above,sub-clause 6.5 and without limiting either party’s right to any right, power or remedy provided by law or under this Agreement:
(iA) this Agreement shall become void the Seller will indemnify the Purchaser on demand on an after-Tax basis for all reasonable costs and of no further force expenses incurred by the Purchaser in accordance with sub-clause 17.2 (Costs and effect; provided, however, that the provisions of this Clause 5.5 and Clauses 1 (Definitions and Interpretationexpenses), 11 (Announcements and Confidentiality), 12 (Notices), 13 (Governing Law, Disputes and Jurisdiction), 14.1 (Entire Agreement), 14.6 (Variation), 14.7 (No Assignment), 14.8 (Waiver), 14.9 (Severability), 14.10 (Supersession) and 14.11 (Expenses) shall survive the termination of this Agreement indefinitely and that nothing herein shall relieve any Party from any liability for fraud or any breach of the provisions of this Agreement prior to such termination; and
(iiB) if applicable, the Observer shall no longer be entitled to attend the meetings all obligations of the Board parties under this Agreement shall end except for those expressly stated to continue without limit in time but (for the avoidance of doubt) all rights and liabilities of the parties which have accrued before termination shall continue to exist.
6.7 The Seller undertakes to indemnify the Purchaser against any loss, expense or damage which it may suffer as a result of any committee thereof) document delivered to it pursuant to this clause being unauthorised, invalid or for any other reason ineffective for its purpose.
6.8 The Seller covenants with the Purchaser to pay to the Purchaser an amount calculated on an after-Tax basis equal to the value of any and all claims which may be made against any member of the nominees Group by any of ▇▇▇▇▇ ▇▇▇▇-▇▇▇▇ and ▇▇▇▇▇ ▇▇▇▇▇-▇▇▇, because of their resignation from office or of their employment being terminated and an amount equal to all costs, charges and expenses incurred by any member of the Group which are incidental to any such claim.
6.9 Payment by or on behalf of the Purchaser appointed on for the Board amount stated in sub-clause 5.1 (Consideration) in accordance with Clause 6.2 paragraph 3 of Part A (Parties’ obligations) of Schedule 2 (Completion arrangements) shall resign with immediate effectconstitute payment of the consideration for the Sale Shares and shall fully discharge the obligations of the Purchaser under sub-clause 2.1 (Sale and purchase).
Appears in 1 contract
Sources: Share Purchase Agreement (Alibaba Group Holding LTD)
Completion. 5.1. 5.1 Subject to the conditions set out in Clauses 3.1, 3.2 and 3.3Clause 6, Completion shall take place at Arculli Fong&Ng LLP on or before the thirtieth (30th) business day after the fulfilment of the above conditions precedent (or waiver, as the case may be) or at such other place and/or at such other time as the Parties may agree in writing from time to time (the “Completion Date”) when the business described in Clauses 5.2 to 5.4 will be simultaneously transacted:
5.2 At Completion, the Purchaser shall pay the Consideration in accordance with Clause 4.2 and deliver, inter alia, the following documents:
(a) an executed instrument of transfer in respect of the Sale Shares;
(b) a certified true copy of board resolutions/minutes of the Purchaser approving, inter alia (i) the transfer of the Sale Shares, (ii) the issue and allotment of the Consideration Shares to the Vendor or its nominees if the Purchaser selects the Consideration to be paid in accordance with Clause 4.2(b) and the registration of the Vendor and/or its nominees, as applicable, as members of the Purchaser in respect of the Consideration Shares and (iii) the entry into and consummation of this Agreement, and (iv) the execution of all other documents contemplated hereunder;
(c) a certified true copy of the shareholders’ resolutions /minutes of the Purchaser approving, inter alia, (i) the transfer of the Sale Shares, (ii) the issue and allotment of the Consideration Shares to the Vendor or its nominees if the Purchaser selects the Consideration to be paid in accordance with Clause 4.2(b) and the registration of the Vendor and/or its nominees, as applicable, as members of the Purchaser in respect of the Consideration Shares, (iii) the entry into and consummation of this Agreement, and (iv) the execution of all other documents contemplated hereunder; and
(d) the necessary approvals from the SEC, NASDAQ and/or other regulatory authority in connection with the transactions contemplated hereunder (if applicable).
5.2. The obligations 5.3 At Completion, the Vendor shall deliver to the Purchaser, inter alia, the following documents:
(a) an executed instrument of each transfer in respect of the Parties under Clause 5.3 below are interdependent Sale Shares;
(b) an executed letter of each other. The Completion shall not occur unless all application for shares in respect of the obligations specified Consideration Shares (if the Purchaser selects the Consideration to be paid in accordance with Clause 5.34.2(b));
(c) a certified copy of board resolutions/minutes of the Vendor approving, have been simultaneously complied inter alia, (i) the transfer of the Sale Shares, (ii) the subscription of the Consideration Shares if the Purchaser selects the Consideration to be paid in accordance with Clause 4.2(b), (iii) the entry into and are fully effective.consummation of this Agreement, and (iv) the execution of all other documents contemplated hereunder;
5.3. On (d) a certified true copy of board resolutions/minutes of the Completion DateCompany approving, subject to Completion:
(i) Subject to deductions pursuant to Clause 4.4, the registration of the Purchaser shall remit and/or its nominees, as applicable, as members of the Purchase Consideration (Company in immediately available funds) to respect of the Seller’s Bank Account.Sale Shares;
(ii) The Seller shall (a) provide to its Depository Participant duly executed DP Instructions in the prescribed form for the transfer execution of the Sale Shares to the Demat Account of the Purchaser (details of which shall be provided to the Seller in writing as soon as practicable after the Execution Date); (b) procure its Depository Participant to duly acknowledge such DP Instructions; (c) deliver a copy of such acknowledgement to the Purchaser; and (d) use best endeavours to procure credit of the Sale Shares to the Demat Account of the Purchaserall other documents contemplated hereunder.
(iii) The Seller shall, to the extent it is able to do so through exercise of its voting rights, procure that a Board meeting is held at which the following business shall be transacted:
(a) the appointment of directors nominated by the Purchaser on the Board shall be approved; and
(b) an extra-ordinary general meeting of the shareholders of the Company to approve the matters set out in Clause 5.3(iii)(a) and the amendment of the Articles of Association shall be convened.
5.4. This Agreement may be terminated on or prior to the Completion Date as follows:
(i) By the mutual written consent of the Purchaser and the Seller.
(ii) By the Seller, upon written notice to the Purchaser, if the conditions set out in Clauses 3.1 and 3.3 have not been satisfied (or satisfied subject only to Completion where applicable) or waived (where applicable) on or before 270 (two hundred seventy) days from the Execution Date or such later date as may be mutually agreed between the Parties in writing (“Long Stop Date”); provided that the Seller shall not be entitled to terminate this Agreement pursuant to this Clause 5.4(ii) if Seller’s breach of this Agreement has prevented or materially delayed the consummation of the Transactions (which term for the purposes of this Clause 5.4(ii) shall not include the Financing);
(iii) By the Purchaser, upon written notice to the Seller, if the conditions set out in Clauses 3.2 and 3.3 have not been satisfied (or satisfied subject only to Completion where applicable) or waived (where applicable) on or before the Long Stop Date; provided that the Purchaser shall not be entitled to terminate this Agreement pursuant to this Clause 5.4(iii) if Purchaser’s breach of this Agreement has prevented or materially delayed the consummation of the Transactions.
(iv) By the Seller (if the Seller is not in material breach of the Seller Warranties, covenants or agreements under this Agreement so as to cause any of the conditions set forth in Clause 3.2 and/or 3.3(i) not to be satisfied), upon written notice to the Purchaser, if there has been a material inaccuracy of any statement or warranty, or any unremedied material breach of a covenant or other agreement, of the Purchaser contained in this Agreement, which violation, breach or inaccuracy would cause any of the conditions set forth in Clause 3.1 and/or 3.3 not to be satisfied as of the Completion Date, and such violation, breach or inaccuracy has not been waived by the Seller or cured by the Purchaser within 20 (twenty) Business Days after receipt by the Purchaser of written notice thereof from the Seller or is not reasonably capable of being cured prior to the Long Stop Date.
(v) By the Purchaser (if the Purchaser is not in material breach of the Purchaser Warranties, covenants or agreements under this Agreement so as to cause any of the conditions set forth in Clause 3.1 and/or 3.3 not to be satisfied), upon written notice to the Seller, if there has been a material inaccuracy of any statement or warranty, or any unremedied material breach of a covenant or other agreement, of the Seller contained in this Agreement, which violation, breach or inaccuracy would cause any of the conditions set forth in Clauses 3.2 and/or 3.3(i) not to be satisfied as of the Completion Date, and such violation, breach or inaccuracy has not been waived by the Purchaser or cured by the Seller within 20 (twenty) Business Days after receipt by the Seller of written notice thereof from the Purchaser or is not reasonably capable of being cured prior to the Long Stop Date.
(vi) By the Seller or the Purchaser, upon written notice to the other, if a court of competent jurisdiction or any other Governmental Authority shall have issued a final, non-appealable order preventing or otherwise prohibiting the consummation of the Transactions.
5.5. If this Agreement is terminated prior to Completion in accordance with Clause 5.4 above,
(i) this Agreement shall become void and of no further force and effect; provided, however, that the provisions of this Clause 5.5 and Clauses 1 (Definitions and Interpretation), 11 (Announcements and Confidentiality), 12 (Notices), 13 (Governing Law, Disputes and Jurisdiction), 14.1 (Entire Agreement), 14.6 (Variation), 14.7 (No Assignment), 14.8 (Waiver), 14.9 (Severability), 14.10 (Supersession) and 14.11 (Expenses) shall survive the termination of this Agreement indefinitely and that nothing herein shall relieve any Party from any liability for fraud or any breach of the provisions of this Agreement prior to such termination; and
(ii) if applicable, the Observer shall no longer be entitled to attend the meetings of the Board (or any committee thereof) and the nominees of the Purchaser appointed on the Board in accordance with Clause 6.2 shall resign with immediate effect.
Appears in 1 contract
Sources: Sale and Purchase Agreement (China Technology Development Group Corp)
Completion. 5.1. 5.1 Subject to the conditions set out in Clauses 3.1, 3.2 and 3.3terms of this Agreement, Completion of 10 of the Sale Shares shall take place pursuant to this clause at the offices of the Purchaser on the Completion DateDate within 30 days of this Agreement, and Completion of 53 of the Sale Shares shall take place pursuant to this clause at the offices of the Purchaser within 60 days of this Agreement.
5.2. The obligations of each of 5.2 Upon Completion the Parties under Clause 5.3 below are interdependent of each other. The Completion shall not occur unless all of Vendor shall:
(a) deliver to the obligations specified in Clause 5.3, have been simultaneously complied with and are fully effective.
5.3. On the Completion DatePurchaser:
(i) Subject to deductions pursuant to duly completed and signed transfers of the numbers of Sale Shares specified in Clause 4.4, 4.01(b) by the registered holders thereof in favour of the Purchaser shall remit or as it may direct together with the Purchase Consideration (in immediately available funds) to the Seller’s Bank Account.relative bought/sold share certificates;
(ii) certificates in respect of the numbers of Sale Shares specified in Clause 4.01(b) in favour of such persons as the Purchaser shall direct;
(iii) such waivers or consents as the Purchaser may require to enable the Purchaser or its nominee(s) to be registered as the holders of Sale Shares;
(iv) written confirmation that none of the Vendor are aware of any matter or thing which is in breach of or inconsistent with any of the representations, warranties and undertakings herein contained;
(v) such other documents as may be required to give to the Purchaser good title to the Sale Shares and to enable the Purchaser or its nominees to become the registered holders thereof;
(vi) such other papers and documents as the Purchaser may (by notice in writing given not less than 5 business days prior to Completion) reasonably require;
(b) cause board meetings of the Company to be held (inter alia) at which the Directors shall:
(i) approve the transfers to the Purchaser or its nominee(s) and its registration as members of the Company in respect of the number of Sale Shares specified in Clause 4.01 (b) (subject to the production of duly stamped transfers);
(ii) upon payment of not less than Euro 600,000 by the Purchaser, appoint such person as the Purchaser may nominate to be validly appointed as an additional Director of the Company;
(c) procure that immediately following the board meetings referred to in sub-clause 5.2(b) such meetings of the boards of directors of the Subsidiaries as the Purchaser shall require are convened to deal with such of the matters referred to in subclause 5.2(b) as the Purchaser shall require;
5.3 Upon Completion the Purchaser shall deliver to the Vendor or its Solicitors a banker's draft or any other means to be agreed by the Parties for the Consideration, such draft to be payable to or to the order of the Vendor. The Seller shall (a) provide to its Depository Participant duly executed DP Instructions delivery of such banker's drafts as aforesaid in the prescribed form aggregate amounts of Euro 600,000 shall constitute a complete discharge to the Purchaser in respect of the Consideration to be provided by it under this Agreement and the Purchaser shall not be concerned further with such Consideration or to see that any of the Vendor actually received the same;
5.4 The Purchaser agrees hereby to irrevocably undertake upon following Completion to use its reasonable endeavours to procure discharge of the Vendor obligations pursuant to any indemnity given by the Vendor as security for the transfer banking facilities of the Company.
5.5 The Purchaser shall not be obliged to complete the purchase of any of the Sale Shares to unless the Demat Account of the Purchaser (details of which shall be provided to the Seller in writing as soon as practicable after the Execution Date); (b) procure its Depository Participant to duly acknowledge such DP Instructions; (c) deliver a copy of such acknowledgement to the Purchaser; and (d) use best endeavours to procure credit purchase of the Sale Shares is completed in accordance with this Agreement. Without prejudice to any other remedies available to the Demat Account Purchaser, if in any respect the provisions of clause 5.2 are not complied with by the Purchaser.
(iii) The Seller shall, to Vendor on the extent it is able to do so through exercise of its voting rights, procure that a Board meeting is held at which Completion Date the following business shall be transactedPurchaser may:
(a) the appointment of directors nominated by the Purchaser on the Board shall be approved; and
(b) an extra-ordinary general meeting of the shareholders of the Company defer Completion to approve the matters set out in Clause 5.3(iii)(a) and the amendment of the Articles of Association shall be convened.
5.4. This Agreement may be terminated on or prior to a date not more than 28 days after the Completion Date as follows:
(i) By the mutual written consent of the Purchaser and the Seller.
(ii) By the Seller, upon written notice to the Purchaser, if the conditions set out in Clauses 3.1 and 3.3 have not been satisfied (or satisfied subject only to Completion where applicable) or waived (where applicable) on or before 270 (two hundred seventy) days from the Execution Date or such later date as may be mutually agreed between the Parties in writing (“Long Stop Date”); provided that the Seller shall not be entitled to terminate this Agreement pursuant to this Clause 5.4(ii) if Seller’s breach of this Agreement has prevented or materially delayed the consummation of the Transactions (which term for the purposes of this Clause 5.4(ii) shall not include the Financing);
(iii) By the Purchaser, upon written notice to the Seller, if the conditions set out in Clauses 3.2 and 3.3 have not been satisfied (or satisfied subject only to Completion where applicable) or waived (where applicable) on or before the Long Stop Date; provided that the Purchaser shall not be entitled to terminate this Agreement pursuant to this Clause 5.4(iii) if Purchaser’s breach of this Agreement has prevented or materially delayed the consummation of the Transactions.
(iv) By the Seller (if the Seller is not in material breach of the Seller Warranties, covenants or agreements under this Agreement so as to cause any of the conditions set forth in Clause 3.2 and/or 3.3(i) not to be satisfied), upon written notice to the Purchaser, if there has been a material inaccuracy of any statement or warranty, or any unremedied material breach of a covenant or other agreement, of the Purchaser contained in this Agreement, which violation, breach or inaccuracy would cause any of the conditions set forth in Clause 3.1 and/or 3.3 not to be satisfied as of the Completion Date, and such violation, breach or inaccuracy has not been waived by the Seller or cured by the Purchaser within 20 (twenty) Business Days after receipt by the Purchaser of written notice thereof from the Seller or is not reasonably capable of being cured prior to the Long Stop Date.
(v) By the Purchaser (if the Purchaser is not in material breach of the Purchaser Warranties, covenants or agreements under this Agreement so as to cause any of the conditions set forth in Clause 3.1 and/or 3.3 not to be satisfied), upon written notice to the Seller, if there has been a material inaccuracy of any statement or warranty, or any unremedied material breach of a covenant or other agreement, of the Seller contained in this Agreement, which violation, breach or inaccuracy would cause any of the conditions set forth in Clauses 3.2 and/or 3.3(i) not to be satisfied as of the Completion Date, and such violation, breach or inaccuracy has not been waived by the Purchaser or cured by the Seller within 20 (twenty) Business Days after receipt by the Seller of written notice thereof from the Purchaser or is not reasonably capable of being cured prior to the Long Stop Date.
(vi) By the Seller or the Purchaser, upon written notice to the other, if a court of competent jurisdiction or any other Governmental Authority shall have issued a final, non-appealable order preventing or otherwise prohibiting the consummation of the Transactions.
5.5. If this Agreement is terminated prior to Completion in accordance with Clause 5.4 above,
(i) this Agreement shall become void and of no further force and effect; provided, however, that the provisions of this Clause 5.5 and Clauses 1 5.6 shall apply to Completion as so deferred); or
(Definitions and Interpretationb) proceed to Completion so far as practicable (without prejudice to its rights hereunder), 11 ; or
(Announcements and Confidentiality), 12 (Notices), 13 (Governing Law, Disputes and Jurisdiction), 14.1 (Entire Agreement), 14.6 (Variation), 14.7 (No Assignment), 14.8 (Waiver), 14.9 (Severability), 14.10 (Supersessionc) and 14.11 (Expenses) shall survive the termination of rescind this Agreement indefinitely without prejudice to any other remedy and that nothing herein shall relieve any Party from without incurring any liability for fraud or any breach of to the provisions of this Agreement prior Vendor.
5.6 The Vendor hereby irrevocably undertakes to such termination; and
(ii) if applicable, the Observer shall no longer be entitled to attend the meetings of the Board (or any committee thereof) and the nominees of the Purchaser appointed on to procure at its own expense the Board due execution of all such further documents as are necessary to vest in accordance with Clause 6.2 shall resign with immediate effectthe Purchaser or the Company all such property and rights as are intended to be vested in it by or pursuant to this Agreement.
Appears in 1 contract
Completion. 5.1. Subject to the conditions set out in Clauses 3.1, 3.2 and 3.3, 5.1 Completion shall take place on the Completion Date.
5.2. The obligations of each of the Parties under Clause 5.3 below are interdependent of each other. The Completion shall not occur unless all of the obligations specified in Clause 5.3, have been simultaneously complied with and are fully effective.
5.3. On the Completion DateDate when:
(i) Subject 5.1.1 the Sellers shall deliver to deductions pursuant the Buyer, or procure the delivery to Clause 4.4the Buyer of, the Purchaser documents and other items referred to in Schedule 4;
5.1.2 the Sellers shall remit repay or procure the Purchase Consideration repayment in full of all amounts owing (in immediately available fundseven if not due for repayment) to the Seller’s Bank Account.
(ii) The Seller shall (a) provide to its Depository Participant duly executed DP Instructions in Company or the prescribed form for the transfer Subsidiary by any of the Sale Shares Sellers or any connected persons or associates or directors of them or any of them and shall procure that all guarantees or indemnities given by or binding on the Company or the Subsidiary in respect of any liabilities (actual or contingent) of any of the Sellers or any of such connected persons or associates or directors are fully and effectively released without cost to the Demat Account Company or the Subsidiary save that this Clause shall not apply to advances made to members of staff on account of expenses;
5.1.3 the Purchaser (details of which Sellers shall be provided to the Seller in writing as soon as practicable after the Execution Date); (b) procure its Depository Participant to duly acknowledge such DP Instructions; (c) deliver a copy of such acknowledgement to the Purchaser; and (d) use best endeavours to procure credit of the Sale Shares to the Demat Account of the Purchaser.
(iii) The Seller shall, to the extent it is able to do so through exercise of its voting rights, procure that a Board meeting is held at which the following business shall be transactedprocure:
(a) that there shall be held a meeting of the appointment board of directors nominated by of the Purchaser on Company and of the Board Subsidiary at which there shall be approvedduly passed the resolutions set out and contained in the board minutes or unanimous board consents of the Company and of the Subsidiary in the Agreed Form marked “C1” to “C2” respectively; and
(b) an extra-ordinary general meeting of the shareholders of the Company to approve the matters set out in Clause 5.3(iii)(a) and the amendment of the Articles of Association that there shall be convened.duly passed the Resolutions as written resolutions; and
5.4. This Agreement may be terminated on or prior to 5.1.4 the Completion Date as followsBuyer shall:
(a) pay:
(i) By the mutual written consent Initial Cash Consideration to the Sellers and the Other Sellers by way of transfer of funds to the Sellers’ Solicitor’s Account, receipt of which shall be an effective discharge of the Purchaser and Buyer’s obligation to pay the Seller.Initial Cash Consideration, after deduction in relation to any Optionholder of the amounts to be withheld from such Optionholder pursuant to Clause 5.1.4(a)(ii) below;
(ii) By the Seller, upon written notice to the PurchaserCompany on behalf of Optionholders (who are also Sellers) the aggregate amounts in satisfaction of (i) the aggregate exercise monies due, if and (ii) amounts due in respect of Tax (including employee and employer’s National Insurance contributions and PAYE contributions) pursuant to the conditions set out undertakings and authorisations provided by the Optionholders in Clauses 3.1 the Exercise Forms and 3.3 have not been satisfied (or satisfied subject only to Completion where applicable) or waived (where applicable) on or before 270 (two hundred seventy) days such Optionholders agree that the amount so payable in respect of any Optionholder shall be deducted from the Execution Date or such later date as may be mutually agreed between cash amount otherwise payable to that Optionholder for his/her Option Shares and the Parties in writing (“Long Stop Date”); provided Buyer agrees to procure that the Seller Company shall not be entitled pay to terminate this Agreement pursuant to this Clause 5.4(ii) if Seller’s breach the relevant Taxation Authority such amounts due in respect of this Agreement has prevented or materially delayed the consummation of the Transactions (which term for the purposes of this Clause 5.4(ii) shall not include the Financing)Tax;
(iii) By (or cause the Purchaser, upon written notice Company to pay) to the Seller, if 's Solicitors the conditions set out sum of £1,458,130 in Clauses 3.2 and 3.3 have not been satisfied (or satisfied subject only to Completion where applicable) or waived (where applicable) on or before the Long Stop Date; provided that the Purchaser shall not be entitled to terminate this Agreement pursuant to this Clause 5.4(iii) if Purchaser’s breach of this Agreement has prevented or materially delayed the consummation respect of the Transactions.Management Incentive Bonus, constituted by the anticipated principal amount of £1,281,310 and £176,820 in respect of National Insurance contributions anticipated to be payable thereon, to be held subject to and in accordance with Clause 8.10;
(iv) By the Seller (if Escrow Cash Amount into the Seller is not in material breach of the Seller Warranties, covenants or agreements under this Agreement so as to cause any of the conditions set forth in Clause 3.2 and/or 3.3(i) not to be satisfied), upon written notice to the Purchaser, if there has been a material inaccuracy of any statement or warranty, or any unremedied material breach of a covenant or other agreement, of the Purchaser contained in this Agreement, which violation, breach or inaccuracy would cause any of the conditions set forth in Clause 3.1 and/or 3.3 not to be satisfied as of the Completion Date, and such violation, breach or inaccuracy has not been waived by the Seller or cured by the Purchaser within 20 (twenty) Business Days after receipt by the Purchaser of written notice thereof from the Seller or is not reasonably capable of being cured prior to the Long Stop Date.Escrow Account;
(v) By (or cause the Purchaser (if Company to pay) the Purchaser is not WC Initial Payments to the Sellers and Other Sellers in material breach the amounts set against their names in column 9 of Schedule 1 by way of transfer of funds to the Sellers’ Solicitor’s Account, receipt of which shall be an effective discharge of the Purchaser WarrantiesBuyer’s obligation to pay the WC Initial Payments;
(b) deliver the Escrow Agreement, covenants duly executed by the Buyer;
(c) issue such number of Initial Buyer Shares to each Seller and Other Seller as shown against his or agreements under this Agreement so her name in Parts A and B of column 4 of Schedule 1, with such legends as to cause any of the conditions set forth in Clause 3.1 and/or 3.3 appropriate. It is Buyer’s current policy not to be satisfied), upon written notice to the Seller, if there has been a material inaccuracy issue stock certificates representing shares of any statement or warranty, or any unremedied material breach of a covenant or other agreement, of the Seller contained in this Agreement, which violation, breach or inaccuracy would cause any of the conditions set forth in Clauses 3.2 and/or 3.3(i) not to be satisfied as of the Completion Dateits capital stock, and such violationall new issuances of capital stock are reflected on Buyer’s books and records in book entry only, breach or inaccuracy has not been waived by with appropriate notations reflecting the Purchaser or cured by the Seller within 20 (twenty) Business Days after receipt by the Seller of written notice thereof from the Purchaser or is not reasonably capable of being cured prior to the Long Stop Date.
(vi) By the Seller or the Purchaser, upon written notice to the other, if a court of competent jurisdiction or any other Governmental Authority shall have issued a final, non-appealable order preventing or otherwise prohibiting the consummation of the Transactions.
5.5. If this Agreement is terminated prior to Completion in accordance with Clause 5.4 above,
(i) this Agreement shall become void and of no further force and effect; provided, however, that the provisions of this Clause 5.5 and Clauses 1 (Definitions and Interpretation), 11 (Announcements and Confidentiality), 12 (Notices), 13 (Governing Law, Disputes and Jurisdiction), 14.1 (Entire Agreement), 14.6 (Variation), 14.7 (No Assignment), 14.8 (Waiver), 14.9 (Severability), 14.10 (Supersession) and 14.11 (Expenses) shall survive the termination of this Agreement indefinitely and that nothing herein shall relieve any Party from any liability for fraud or any breach of the provisions of this Agreement prior to such terminationapplicable legends; and
(iid) issue the Escrow Stock to US Bank National Association as escrow agent.
5.2 The performance by the Sellers of their respective obligations under Clause 5.1 shall be a condition precedent to the performance by the Buyer of its obligations under Clause 5.1 such that, if applicablethe Sellers or any of them shall fail or shall be unable to perform any of their obligations under Clause 5.1, the Observer Buyer shall no longer either:
5.2.1 defer Completion to a later date to be entitled agreed;
5.2.2 elect to attend proceed to Completion; or
5.2.3 if failure to perform would materially adversely affect the meetings value of the Board Shares, Other Shares and Outstanding Shares due to be acquired by the Buyer at its option (and without prejudice to any other remedies or rights which it may have against the Sellers or any committee thereofof them in respect of such non-performance) and the nominees of the Purchaser appointed on the Board in accordance with cease to be liable to perform its obligations under Clause 6.2 shall resign with immediate effect5.1.
Appears in 1 contract
Completion. 5.1. Subject to the conditions set out in Clauses 3.1, 3.2 and 3.3, 4.1 Completion shall take place at 10 a.m. or such other time as RDL and ACI US shall agree on the Completion DateDate at the offices of the Sellers’ Solicitors at ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇ or such other venue as may be agreed between RDL and ACI US.
5.24.2 At Completion, RDL shall do, and shall procure that Cardcast does, those things listed in Part A of Schedule 1 (Completion arrangements) and the Purchasers shall do those things listed in Part B of Schedule 1 (Completion arrangements). The obligations Completion shall take place in accordance with Part C of each Schedule 1 (Completion arrangements).
4.3 None of the Parties under Clause 5.3 below are interdependent parties to this Agreement shall complete the sale and purchase of each other. The Completion shall not occur any of the Target Shares to be sold pursuant to this Agreement unless the sale and purchase of all of the Target Shares is completed simultaneously.
4.4 Without any limitation on sub-clause 2.11, no party shall be entitled to rescind or terminate this Agreement (whether before or after Completion) for breach of any of the warranties or other obligations specified set out in Clause 5.3this Agreement, have been simultaneously other than pursuant to any such rights which arise in respect of fraudulent misrepresentation.
4.5 If the respective obligations of RDL and/or the Purchasers under sub-clause 4.2 and Part A and Part B of Schedule 1 (Completion arrangements) are not complied with and are fully effective.
5.3. On in any material respect, the Completion DatePurchasers (in the case of non-compliance by RDL) or, as the case may be, RDL (in the case of non-compliance by any of the Purchasers) may:
(iA) Subject to deductions pursuant to Clause 4.4, defer Completion (so that the Purchaser provisions of this clause 4 shall remit the Purchase Consideration (in immediately available funds) to the Seller’s Bank Account.
(ii) The Seller shall (a) provide to its Depository Participant duly executed DP Instructions in the prescribed form for the transfer of the Sale Shares to the Demat Account of the Purchaser (details of which shall be provided to the Seller in writing as soon as practicable after the Execution Date); (b) procure its Depository Participant to duly acknowledge such DP Instructions; (c) deliver a copy of such acknowledgement to the Purchaser; and (d) use best endeavours to procure credit of the Sale Shares to the Demat Account of the Purchaser.
(iii) The Seller shall, to the extent it is able to do so through exercise of its voting rights, procure that a Board meeting is held at which the following business shall be transacted:
(a) the appointment of directors nominated by the Purchaser on the Board shall be approved; and
(b) an extra-ordinary general meeting of the shareholders of the Company to approve the matters set out in Clause 5.3(iii)(a) and the amendment of the Articles of Association shall be convened.
5.4. This Agreement may be terminated on or prior to the Completion Date as follows:
(i) By the mutual written consent of the Purchaser and the Seller.
(ii) By the Seller, upon written notice to the Purchaser, if the conditions set out in Clauses 3.1 and 3.3 have not been satisfied (or satisfied subject only apply to Completion where applicable) or waived (where applicable) on or before 270 (two hundred seventy) days from the Execution Date or such later date as may be mutually agreed between the Parties in writing (“Long Stop Date”); provided that the Seller shall not be entitled to terminate this Agreement pursuant to this Clause 5.4(ii) if Seller’s breach of this Agreement has prevented or materially delayed the consummation of the Transactions (which term for the purposes of this Clause 5.4(ii) shall not include the Financingso deferred);
(iiiB) By the Purchaser, upon written notice to the Seller, if the conditions set out in Clauses 3.2 and 3.3 have not been satisfied (or satisfied subject only proceed to Completion where applicableas far as practicable (without limiting the Purchasers’ or, as the case may be, the Sellers’ rights under this Agreement); or
(C) or waived (where applicable) on or before the Long Stop Date; provided that the Purchaser shall not be entitled to terminate this Agreement pursuant by notice in writing to this Clause 5.4(iii) if Purchaser’s breach of this Agreement the party who has prevented or materially delayed not complied in the consummation of event that the Transactionsrelevant non-compliance has continued un-remedied for 10 Business Days.
(iv) By the Seller (if the Seller is not in material breach of the Seller Warranties, covenants or agreements under this Agreement so as to cause any of the conditions set forth in Clause 3.2 and/or 3.3(i) not to be satisfied), upon written notice to the Purchaser, if there has been a material inaccuracy of any statement or warranty, or any unremedied material breach of a covenant or other agreement, of the Purchaser contained in this Agreement, which violation, breach or inaccuracy would cause any of the conditions set forth in Clause 3.1 and/or 3.3 not to be satisfied as of the Completion Date, and such violation, breach or inaccuracy has not been waived by the Seller or cured by the Purchaser within 20 (twenty) Business Days after receipt by the Purchaser of written notice thereof from the Seller or is not reasonably capable of being cured prior to the Long Stop Date.
(v) By the Purchaser (if the Purchaser is not in material breach of the Purchaser Warranties, covenants or agreements under this Agreement so as to cause any of the conditions set forth in Clause 3.1 and/or 3.3 not to be satisfied), upon written notice to the Seller, if there has been a material inaccuracy of any statement or warranty, or any unremedied material breach of a covenant or other agreement, of the Seller contained in this Agreement, which violation, breach or inaccuracy would cause any of the conditions set forth in Clauses 3.2 and/or 3.3(i) not to be satisfied as of the Completion Date, and such violation, breach or inaccuracy has not been waived by the Purchaser or cured by the Seller within 20 (twenty) Business Days after receipt by the Seller of written notice thereof from the Purchaser or is not reasonably capable of being cured prior to the Long Stop Date.
(vi) By the Seller or the Purchaser, upon written notice to the other, if a court of competent jurisdiction or any other Governmental Authority shall have issued a final, non-appealable order preventing or otherwise prohibiting the consummation of the Transactions.
5.5. 4.6 If this Agreement is terminated prior to Completion in accordance with Clause 5.4 above,
sub-clause 4.5 (i) and without limiting any party’s right to claim damages), all obligations of the Sellers and the Purchasers under this Agreement shall become void and of no further force and effect; provided, however, that end (except for the provisions of this Clause 5.5 sub-clause 4.6, clause 15 (Announcements) and Clauses 1 clause 16 (Definitions and Interpretation), 11 (Announcements and Confidentiality), 12 ) but (Notices), 13 (Governing Law, Disputes for the avoidance of doubt) all rights and Jurisdiction), 14.1 (Entire Agreement), 14.6 (Variation), 14.7 (No Assignment), 14.8 (Waiver), 14.9 (Severability), 14.10 (Supersession) and 14.11 (Expenses) liabilities of the parties which have accrued before termination shall survive the termination continue to exist.
4.7 Any provision of this Agreement indefinitely which is capable of being performed after but which has not been performed at or before Completion and that nothing herein all warranties and covenants and other undertakings contained in or entered into pursuant to this Agreement, shall relieve any Party from any liability for fraud or any breach of the provisions of this Agreement prior to such termination; and
(ii) if applicable, the Observer shall no longer be entitled to attend the meetings of the Board (or any committee thereof) remain in full force and the nominees of the Purchaser appointed on the Board in accordance with Clause 6.2 shall resign with immediate effecteffect notwithstanding Completion.
Appears in 1 contract
Completion. 5.1. 7.1 Subject to fulfillment (or waiver) of all the conditions set out in Clauses 3.1, 3.2 and 3.3Clause 3.2, Completion shall take place at 4:00 p.m. on the Completion Date, or such other time and date as the Vendor and the Purchaser may agree in writing (but in any event within one (1) month upon the fulfillment or waiver of the conditions set out in Clause 3.2) at the office of the Purchaser in Hong Kong or such other place as the Vendor and the Purchaser may agree in writing when all the acts and requirements set out in this Clause 7 shall be complied with.
7.2 At Completion, the Vendor shall deliver or cause to be delivered to the Purchaser:
(a) instrument(s) of transfer in respect of the transfer of the Sale Shares duly executed by the Vendor in favour of the Purchaser (or its nominee(s));
(b) original share certificate(s) in respect of the Sale Shares;
(c) such documents as the Purchaser may require to enable it (or such person as it may direct) to obtain good title to the Sale Shares and to be registered as the holder of the Sale Shares; and to substantiate the right of the transferor of the Sale Shares pursuant to this Agreement;
(d) copy, certified by a director of the Company as true and complete, of the resolutions of the board of directors of the Company referred to in Clause 7.3;
(e) a copy of the board resolution(s) of the Vendor approving and authorising the execution of, and performance of the obligations of the Vendor under, this Agreement and other transactions as contemplated under this Agreement in order to give full effect to the provisions of this Agreement;
(f) the Deed of Indemnity and the Deed of Non-Competition (in the form and content satisfactory to the Purchaser) duly executed by the relevant parties to such deeds in favour of the Purchaser; and
(g) such other reasonable documents as may be required to give to the Purchaser good title to the Sale Shares and to enable the Purchaser (or its nominee(s)) to become the registered owner thereof.
7.3 The Vendor shall procure a meeting of the board of directors of the Company to be held at which resolutions shall be passed for:
(a) the approval for the transfer of the Sale Shares from the Vendor to the Purchaser (or its nominee(s)) and the registration of such transfer, subject to the relevant instruments of transfer being duly presented for registration;
(b) the execution of, and performance of the obligations under, this Agreement and other transactions as contemplated under this Agreement in order to give full effect to the provisions of this Agreement; and
(c) the approval of the Deed of Indemnity and the Deed of Non-Competition and authorisation of execution of the same under seal for and on behalf of the Company.
7.4 The Vendor shall procure a meeting of the board of directors of the Company and each of the Group Company to be held at which resolutions shall be passed for the persons nominated by the Purchaser shall be appointed directors, such appointments to take effect any time after the Completion Date.
5.2. 7.5 The obligations Purchaser shall on Completion:
(a) produce to the Vendor the Deed of each Indemnity and Deed of Non-Competition duly executed by the Purchaser; and
(b) furnish to the Vendor a copy of the Parties under Clause 5.3 below are interdependent board resolution of each other. The Completion shall not occur unless all the Purchaser approving and authorising the execution of, and performance of the obligations specified in Clause 5.3, have been simultaneously complied with and are fully effective.
5.3. On the Completion Date:
(i) Subject to deductions pursuant to Clause 4.4, of the Purchaser shall remit the Purchase Consideration (in immediately available funds) to the Seller’s Bank Account.
(ii) The Seller shall (a) provide to its Depository Participant duly executed DP Instructions in the prescribed form for under, this Agreement, the transfer of the Sale Shares to the Demat Account of the Purchaser Vendor (details of which shall be provided or its nominee(s) per instruction) and other transactions as contemplated under this Agreement in order to give full effect to the Seller in writing as soon as practicable after the Execution Date); (b) procure its Depository Participant to duly acknowledge such DP Instructions; (c) deliver a copy provisions of such acknowledgement to the Purchaser; and (d) use best endeavours to procure credit of the Sale Shares to the Demat Account of the Purchaserthis Agreement.
(iii) The Seller shall, to 7.6 Upon the extent it is able to do so through exercise expiration of its voting rights, procure that a Board meeting is held at which the following business shall be transacted:
(a) the appointment of directors nominated by the Purchaser on the Board shall be approved; and
(b) an extra-ordinary general meeting of the shareholders of the Company to approve the matters set out in Clause 5.3(iii)(a) and the amendment of the Articles of Association shall be convened.
5.4. This Agreement may be terminated on or prior to 90 days from the Completion Date as follows:
(i) By Date, PROVIDED THAT the mutual written consent of Put Option has not been exercised by the Purchaser and the SellerConsideration has been paid to the Vendor in accordance with Clause 4, the Vendor shall deliver/release or cause to be delivered/released to the Purchaser the access to the Group’s Source Code of railways systems relating to the business operation of the Group in a timely manner.
(ii) By the Seller, upon written notice to the Purchaser, if the conditions set out in Clauses 3.1 and 3.3 have not been satisfied (or satisfied subject only to Completion where applicable) or waived (where applicable) on or before 270 (two hundred seventy) days from the Execution Date or such later date as may be mutually agreed between the Parties in writing (“Long Stop Date”); provided that the Seller shall not be entitled to terminate this Agreement pursuant to this Clause 5.4(ii) if Seller’s breach of this Agreement has prevented or materially delayed the consummation of the Transactions (which term for the purposes of this Clause 5.4(ii) shall not include the Financing);
(iii) By the Purchaser, upon written notice to the Seller, if the conditions set out in Clauses 3.2 and 3.3 have not been satisfied (or satisfied subject only to Completion where applicable) or waived (where applicable) on or before the Long Stop Date; provided that the 7.7 The Purchaser shall not be entitled obliged to terminate complete this Agreement pursuant to this Clause 5.4(iii) if Purchaser’s breach of this Agreement has prevented or materially delayed hereunder unless the consummation of Vendor complies fully with the Transactions.
(iv) By the Seller (if the Seller is not in material breach of the Seller Warranties, covenants or agreements under this Agreement so as to cause any of the conditions set forth in Clause 3.2 and/or 3.3(i) not to be satisfied), upon written notice to the Purchaser, if there has been a material inaccuracy of any statement or warranty, or any unremedied material breach of a covenant or other agreement, of the Purchaser contained in this Agreement, which violation, breach or inaccuracy would cause any of the conditions set forth in Clause 3.1 and/or 3.3 not to be satisfied as of the Completion Date, and such violation, breach or inaccuracy has not been waived by the Seller or cured by the Purchaser within 20 (twenty) Business Days after receipt by the Purchaser of written notice thereof from the Seller or is not reasonably capable of being cured prior to the Long Stop Date.
(v) By the Purchaser (if the Purchaser is not in material breach of the Purchaser Warranties, covenants or agreements under this Agreement so as to cause any of the conditions set forth in Clause 3.1 and/or 3.3 not to be satisfied), upon written notice to the Seller, if there has been a material inaccuracy of any statement or warranty, or any unremedied material breach of a covenant or other agreement, of the Seller contained in this Agreement, which violation, breach or inaccuracy would cause any of the conditions set forth in Clauses 3.2 and/or 3.3(i) not to be satisfied as of the Completion Date, and such violation, breach or inaccuracy has not been waived by the Purchaser or cured by the Seller within 20 (twenty) Business Days after receipt by the Seller of written notice thereof from the Purchaser or is not reasonably capable of being cured prior to the Long Stop Date.
(vi) By the Seller or the Purchaser, upon written notice to the other, if a court of competent jurisdiction or any other Governmental Authority shall have issued a final, non-appealable order preventing or otherwise prohibiting the consummation of the Transactions.
5.5. If this Agreement is terminated prior to Completion in accordance with Clause 5.4 above,
(i) this Agreement shall become void and of no further force and effect; provided, however, that the relevant provisions of this Clause 5.5 Clauses 7.2 and Clauses 1 (Definitions and Interpretation), 11 (Announcements and Confidentiality), 12 (Notices), 13 (Governing Law, Disputes and Jurisdiction), 14.1 (Entire Agreement), 14.6 (Variation), 14.7 (No Assignment), 14.8 (Waiver), 14.9 (Severability), 14.10 (Supersession) and 14.11 (Expenses) shall survive the termination of this Agreement indefinitely and that nothing herein shall relieve any Party from any liability for fraud or any breach of the provisions of this Agreement prior to such termination; and
(ii) if applicable, the Observer shall no longer be entitled to attend the meetings of the Board (or any committee thereof) and the nominees of the Purchaser appointed on the Board in accordance with Clause 6.2 shall resign with immediate effect7.
Appears in 1 contract
Sources: Agreement for Transfer of Shares
Completion. 5.1. Subject to the conditions set out in Clauses 3.1, 3.2 and 3.3, 5.1 Completion shall take place at 4 p.m. (Hong Kong time) on the Completion Date remotely by the electronic exchange of documents or at such other place as is agreed in writing by the Seller and the Purchaser.
5.2 At Completion the Seller shall undertake those actions listed in Part 1 of Schedule 2 (Completion Arrangements) and the Purchaser shall undertake those actions listed in Part 3 of Schedule 2 (Completion Arrangements).
5.3 Simultaneously with delivery of all deliverables contemplated by and in accordance with Schedule 2 (Completion Arrangements) (the “Deliverables”) (or waiver of such delivery by the Person entitled to receive the relevant Deliverable) and receipt into the Seller’s Designated Account of the Consideration in immediately available cleared funds, the Deliverables shall cease to be held to the order of the Person delivering them and shall be dated with the Completion Date, whereupon Completion shall have taken place.
5.4 Other than with respect of a failure by the Seller to deliver the WARE Escrow Account Completion Statement at Completion (in accordance with paragraph 5(f) of Part 1 of Schedule 2) which failure shall be governed solely by Clause 5.5, if there is a breach of Clause 5.2 (Completion) and Schedule 2 (Completion Arrangements) on the Completion Date.
5.2. The obligations of each of , by the Parties under Clause 5.3 below are interdependent of each other. The Completion shall not occur unless all of the obligations specified in Clause 5.3, have been simultaneously complied with and are fully effective.
5.3. On the Completion Date:
(i) Subject to deductions pursuant to Clause 4.4, the Purchaser shall remit the Purchase Consideration (in immediately available funds) to the Seller’s Bank Account.
(ii) The Seller shall (a) provide to its Depository Participant duly executed DP Instructions in the prescribed form for the transfer of the Sale Shares to the Demat Account of or the Purchaser (details for the purposes of which this Clause, the Party in breach being the “Breaching Party” and the other being the “Non-Breaching Party”), the Non-Breaching Party shall not be provided obliged to the Seller in writing as soon as practicable after the Execution Date); (b) procure its Depository Participant to duly acknowledge such DP Instructions; (c) deliver a copy of such acknowledgement to the Purchaser; complete this Agreement and (d) use best endeavours to procure credit of the Sale Shares to the Demat Account of the Purchaser.
(iii) The Seller shall, to the extent it is able to do so through exercise of its voting rights, procure that a Board meeting is held at which the following business shall be transactedmay:
(a) defer Completion (with the appointment provisions of directors nominated this Clause 5 (Completion) applying to Completion as so deferred);
(b) proceed to Completion as far as practicable having regard to the breach that has occurred (without limiting its rights and remedies under this Agreement); or
(c) to the extent the breach relates to the obligations set out in paragraphs 5(a) or 5(c) of Part 1 (Seller’s Obligations) or paragraph 1 of Part 3 (Purchaser’s Obligations) of Schedule 2 (Completion Arrangements), terminate this Agreement by written notice to the Breaching Party.
5.5 Notwithstanding anything to the contrary herein, if the WARE Escrow Account Completion Statement is not delivered by the Seller at Completion (in accordance with paragraph 5(f) of Part 1 of Schedule 2) and the Purchaser on has first delayed Completion by at least five Business Days in accordance with Clause 5.4(a), the Board shall be approvedPurchaser shall:
(a) proceed to Completion in accordance with Clause 5.4(b); and
(b) an extra-ordinary general meeting on the earlier to occur of the shareholders of the Company to approve the matters set out in Clause 5.3(iii)(a) and the amendment of the Articles of Association shall be convened.
5.4. This Agreement may be terminated on or prior to the Completion Date as followsthe:
(i) By date the mutual written consent of WARE Escrow Account Completion Statement is delivered to the Purchaser and by the Seller.; or
(ii) By date on which the Seller, upon written notice Purchaser obtains the WARE Escrow Account Completion Statement which (unless the WARE Escrow Account Completion Statement has been provided to the Purchaser, if the conditions set out in Clauses 3.1 and 3.3 have not been satisfied (or satisfied subject only to Completion where applicable) or waived (where applicable) on or before 270 (two hundred seventy) days from the Execution Date or such later date as may be mutually agreed between the Parties in writing (“Long Stop Date”); provided that the Seller shall not be entitled to terminate this Agreement pursuant to this Clause 5.4(ii) if Seller’s breach of this Agreement has prevented or materially delayed the consummation of the Transactions (which term for the purposes of this Clause 5.4(ii) shall not include the Financing);
(iii) By the Purchaser, upon written notice to the Seller, if the conditions set out in Clauses 3.2 and 3.3 have not been satisfied (or satisfied subject only to Completion where applicable) or waived (where applicable) on or before the Long Stop Date; provided that the Purchaser shall not be entitled to terminate this Agreement pursuant to this Clause 5.4(iii) if Purchaser’s breach of this Agreement has prevented or materially delayed the consummation of the Transactions.
(iv) By the Seller (if the Seller is not in material breach of the Seller Warranties, covenants or agreements under this Agreement so as to cause any of the conditions set forth in Clause 3.2 and/or 3.3(i) not to be satisfied), upon written notice to the Purchaser, if there has been a material inaccuracy of any statement or warranty, or any unremedied material breach of a covenant or other agreement, of the Purchaser contained in this Agreement, which violation, breach or inaccuracy would cause any of the conditions set forth in Clause 3.1 and/or 3.3 not to be satisfied as of the Completion Date, and such violation, breach or inaccuracy has not been waived by the Seller or cured by the Purchaser within 20 (twenty) Business Days after receipt by the Purchaser of written notice thereof from the Seller or is not reasonably capable of being cured prior to the Long Stop Date.
(v) By the Purchaser (if the Purchaser is not in material breach of the Purchaser Warranties, covenants or agreements under this Agreement so as to cause any of the conditions set forth in Clause 3.1 and/or 3.3 not to be satisfied), upon written notice to the Seller, if there has been a material inaccuracy of any statement or warranty, or any unremedied material breach of a covenant or other agreement, of the Seller contained in this Agreement, which violation, breach or inaccuracy would cause any of the conditions set forth in Clauses 3.2 and/or 3.3(i) not to be satisfied as of the Completion Date, and such violation, breach or inaccuracy has not been waived by the Purchaser or cured by the Seller within 20 (twenty) Business Days after receipt by the Seller of written notice thereof from the Purchaser or is not reasonably capable of being cured prior to the Long Stop Date.
(vi) By the Seller or the Purchaser, upon written notice to the other, if a court of competent jurisdiction or any other Governmental Authority shall have issued a final, non-appealable order preventing or otherwise prohibiting the consummation of the Transactions.
5.5. If this Agreement is terminated prior to Completion in accordance with Clause 5.4 above,
(i) this Agreement shall become void and of no further force and effect; provided, however, that the provisions of this Clause 5.5 and Clauses 1 (Definitions and Interpretation5.5(b)(i)), 11 the Purchaser shall obtain within one month of Completion (Announcements and Confidentialityshall deliver a copy of to the Seller on the same day as it is obtained), 12 (Notices)promptly, 13 (Governing Law, Disputes and Jurisdiction), 14.1 (Entire Agreement), 14.6 (Variation), 14.7 (No Assignment), 14.8 (Waiver), 14.9 (Severability), 14.10 (Supersession) and 14.11 (Expenses) shall survive the termination of this Agreement indefinitely and that nothing herein shall relieve in any Party from any liability for fraud or any breach event within two Business Days of the provisions of this Agreement prior date on which the WARE Escrow Completion Statement is delivered to such termination; and
(ii) if applicable, the Observer shall no longer be entitled to attend the meetings of the Board (or any committee thereof) and the nominees of obtained by the Purchaser appointed on the Board in accordance with this Clause 6.2 shall resign with immediate effect5.5(b), cause to be paid to the Seller’s Designated Account the Remaining Restricted Cash by telegraphic transfer in immediately available cleared funds.
Appears in 1 contract
Sources: Share Sale and Purchase Agreement (Century Aluminum Co)
Completion. 5.1. 5.1 Subject to the conditions set out in Clauses 3.1, 3.2 and 3.3Clause 3, Completion shall take place on the Completion Date.
5.2. The obligations Date in Singapore at the office of each of ▇▇▇▇▇ ▇▇ & Partners, at ▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇, #▇▇-▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ (or at such other place and/or on such other date as may be agreed by the Parties under Clause 5.3 below are interdependent of each other. The Completion shall not occur unless hereto in writing), where all of the obligations specified in events described below shall occur.
5.2 Subject to Anwell having complied with Clause 5.3, have been simultaneously complied with and are fully effective.
5.3. On on the Completion Date:
, CIBL shall deliver (i) Subject or cause to deductions pursuant to Clause 4.4, the Purchaser shall remit the Purchase Consideration (in immediately available fundsbe delivered) to Anwell the Seller’s Bank Account.following:-
(ii) The Seller shall (a) provide the share certificates in respect of the Sale Shares to Anwell;
(b) a certificate signed by CIBL confirming that all of its Depository Participant warranties have been compiled with and would be correct in all material respects as if repeated on the Completion Date and that all the undertakings on the part of CIBL contained in this Agreement have been fully performed and observed by CIBL to the extent required to be performed and observed by the Completion Date;
(c) the instrument of transfer duly executed DP Instructions by CIBL in the prescribed form for respect of the transfer of the Sale Shares to the Demat Account of the Purchaser (details of which shall be provided to the Seller in writing as soon as practicable after the Execution Date); (b) procure its Depository Participant to duly acknowledge such DP Instructions; (c) deliver a copy of such acknowledgement to the Purchaser; and Anwell;
(d) use best endeavours such documents as may be required for submission in respect of any duty payable on the transfer of the Sale Shares and signed by a director or secretary of the Company; and
(e) certified true copies of the resolutions of the directors and/or shareholders of CIBL approving (in such terms as Anwell may approve, such approval not to procure credit be unreasonably withheld):
i) this Agreement and the Shareholders’ Agreement and such other agreements as may be contemplated pursuant to this Agreement and approving the entry by the CIBL into these agreements; and
(ii) approving the transfer of the Sale Shares to the Demat Account of the PurchaserAnwell.
(iii) The Seller 5.3 Subject to CIBL having complied with Clause 5.2, Anwell shall, on the Completion Date deliver to CIBL the extent it is able to do so through exercise of its voting rights, procure that a Board meeting is held at which the following business shall be transactedfollowing:
(a) the appointment of directors nominated by Convertible Note as full purchase consideration for the Purchaser on the Board shall be approved; andSale Shares;
(b) an extra-ordinary general meeting a certificate signed by Anwell confirming that all of its warranties have been complied with and would be correct in all material respects as if repeated on the Completion Date and that all the undertakings on the part of Anwell contained in this Agreement have been fully performed and observed by Anwell to the extent required to be performed and observed by the Completion Date;
(c) certified true copies of the shareholders resolutions of the directors (and, to the extent necessary, the shareholders) of Anwell approving (in such terms as CIBL may approve, such approval not to be unreasonably withheld):
i) this Agreement, the purchase of the Sale Shares from CIBL and such other agreements and actions as may be contemplated pursuant to this Agreement and the Shareholders’ Agreement, (including the making of loans (“Loans”) by Anwell to the Company to approve as provided for under the matters set out in Clause 5.3(iii)(aShareholders’ Agreement) and the amendment entry by Anwell into such agreements;
ii) the issuance of the Articles of Association shall be convenedConvertible Note to CIBL or its designee; and
iii) the Shareholders Agreement and the entry by Anwell into the Shareholders Agreement.
5.4. This Agreement may be terminated on 5.4 Without prejudice to its other rights and remedies conferred by law or prior otherwise, if a Party (the “Defaulting Party”) falls or is unable to perform its obligations under Clauses 5.2 or 5.3 by the Completion Date as follows:
Date, the other Party (ithe “Non-Defaulting Party”) By shall not be obliged to complete the mutual written consent sale and purchase of the Purchaser Sale Shares and the Seller.
(ii) By the Seller, upon may by written notice to the Purchaser, if the conditions set out in Clauses 3.1 and 3.3 have Defaulting Party elect to:-
(a) defer Completion to a date not been satisfied more than fourteen (or satisfied subject only to Completion where applicable) or waived (where applicable) on or before 270 (two hundred seventy14) days from after the Execution original Completion Date or such later date as may be mutually agreed between the Parties in writing (“Long Stop Date”); provided that the Seller shall not be entitled to terminate this Agreement pursuant to this Clause 5.4(ii) if Seller’s breach of this Agreement has prevented or materially delayed the consummation of the Transactions (which term for the purposes of this Clause 5.4(ii) shall not include the Financing);
(iii) By the Purchaser, upon written notice to the Seller, if the conditions set out in Clauses 3.2 and 3.3 have not been satisfied (or satisfied subject only to Completion where applicable) or waived (where applicable) on or before the Long Stop Date; provided that the Purchaser shall not be entitled to terminate this Agreement pursuant to this Clause 5.4(iii) if Purchaser’s breach of this Agreement has prevented or materially delayed the consummation of the Transactions.
(iv) By the Seller (if the Seller is not in material breach of the Seller Warranties, covenants or agreements under this Agreement so as to cause any of the conditions set forth in Clause 3.2 and/or 3.3(i) not to be satisfied), upon written notice to the Purchaser, if there has been a material inaccuracy of any statement or warranty, or any unremedied material breach of a covenant or other agreement, of the Purchaser contained in this Agreement, which violation, breach or inaccuracy would cause any of the conditions set forth in Clause 3.1 and/or 3.3 not to be satisfied as of the Completion Date, and such violation, breach or inaccuracy has not been waived by the Seller or cured by the Purchaser within 20 (twenty) Business Days after receipt by the Purchaser of written notice thereof from the Seller or is not reasonably capable of being cured prior to the Long Stop Date.
(v) By the Purchaser (if the Purchaser is not in material breach of the Purchaser Warranties, covenants or agreements under this Agreement so as to cause any of the conditions set forth in Clause 3.1 and/or 3.3 not to be satisfied), upon written notice to the Seller, if there has been a material inaccuracy of any statement or warranty, or any unremedied material breach of a covenant or other agreement, of the Seller contained in this Agreement, which violation, breach or inaccuracy would cause any of the conditions set forth in Clauses 3.2 and/or 3.3(i) not to be satisfied as of the Completion Date, and such violation, breach or inaccuracy has not been waived by the Purchaser or cured by the Seller within 20 (twenty) Business Days after receipt by the Seller of written notice thereof from the Purchaser or is not reasonably capable of being cured prior to the Long Stop Date.
(vi) By the Seller or the Purchaser, upon written notice to the other, if a court of competent jurisdiction or any other Governmental Authority shall have issued a final, non-appealable order preventing or otherwise prohibiting the consummation of the Transactions.
5.5. If this Agreement is terminated prior to Completion in accordance with Clause 5.4 above,
(i) this Agreement shall become void and of no further force and effect; provided, however, that the provisions of this sub-Clause 5.5 shall apply to Completion as so deferred); or
(b) proceed to Completion to the extent that the Defaulting Party is ready, able and Clauses 1 willing to do so, and specify a later date on which the Defaulting Party shall be obliged to complete its outstanding obligations (Definitions and Interpretationwithout prejudice to the Non-Defaulting Party’s rights hereunder against the Defaulting Party), 11 ; or
(Announcements and Confidentiality), 12 (Notices), 13 (Governing Law, Disputes and Jurisdiction), 14.1 (Entire Agreement), 14.6 (Variation), 14.7 (No Assignment), 14.8 (Waiver), 14.9 (Severability), 14.10 (Supersessionc) and 14.11 (Expenses) shall survive the termination require specific performance of this Agreement indefinitely and that nothing herein shall relieve any by the Defaulting Party from any liability for fraud or any breach (without prejudice to the Non-Defaulting Party’s rights hereunder against the Defaulting Party); or
(d) rescind this Agreement (without prejudice to the Non-Defaulting Party’s rights hereunder against the Defaulting Party).
5.5 For the avoidance of doubt, the rights of the provisions of this Agreement prior Non-Defaulting Party under Clause 5.4 are in addition to such termination; and
(iiand not in substitution of) if applicableall other rights and remedies available to the Non-Defaulting Party at law, the Observer shall no longer be entitled to attend the meetings of the Board (in equity, under contract or any committee thereof) and the nominees of the Purchaser appointed on the Board in accordance with Clause 6.2 shall resign with immediate effectotherwise.
Appears in 1 contract
Sources: Share Sale and Purchase Agreement (Global Tech Appliances Inc)
Completion. 5.1. Subject to 4.1 Unless otherwise agreed by the conditions set out in Clauses 3.1, 3.2 and 3.3Parties, Completion shall will take place on the date of this Agreement (the “Completion Date”).
5.2. The obligations of each of the Parties under Clause 5.3 below are interdependent of each other. The Completion shall not occur unless all of the obligations specified in Clause 5.3, have been simultaneously complied with and are fully effective.
5.3. 4.2 On the Completion Date:
, the Seller shall cause to be delivered to the Registered Agent (with a copy to the Purchaser): (i) Subject to deductions pursuant to Clause 4.4, the Purchaser shall remit the Purchase Consideration (an instrument of transfer in immediately available funds) to the Seller’s Bank Account.
(ii) The Seller shall (a) provide to its Depository Participant duly executed DP Instructions in the prescribed form for the transfer respect of the Sale Shares to the Demat Account duly completed in favour of the Purchaser Purchaser, in the form attached hereto as Schedule 2, (details of which shall be provided to the Seller ii) any original share certificate(s) that have been issued in writing as soon as practicable after the Execution Date); (b) procure its Depository Participant to duly acknowledge such DP Instructions; (c) deliver a copy of such acknowledgement to the Purchaser; and (d) use best endeavours to procure credit respect of the Sale Shares to the Demat Account of the Purchaser.
(iii) The Seller shallShares, to the extent it is able to do so through exercise of its voting rightssuch Sale Shares are in certificated form, procure that a Board meeting is held at which the following business shall be transacted:
and (a) the appointment of directors nominated by the Purchaser on the Board shall be approved; and
(biii) an extra-ordinary general meeting of instruction letter in the shareholders of form attached hereto as Schedule 3, instructing the Company Registered Agent to approve the matters set out in Clause 5.3(iii)(a) and the amendment of the Articles of Association shall be convened.
5.4. This Agreement may be terminated on or prior deliver to the Completion Date as follows:
(i) By the mutual written consent each of the Purchaser and the SellerSeller a certified copy of the register of members of the Company showing the Purchaser as the new registered holder of the Sale Shares.
(ii) By the Seller, upon written notice to the Purchaser, if the conditions set out in Clauses 3.1 and 3.3 have not been satisfied (or satisfied subject only to Completion where applicable) or waived (where applicable) on or before 270 (two hundred seventy) days from the Execution Date or such later date as may be mutually agreed between the Parties in writing (“Long Stop Date”); provided that the Seller shall not be entitled to terminate this Agreement pursuant to this Clause 5.4(ii) if Seller’s breach of this Agreement has prevented or materially delayed the consummation of the Transactions (which term for the purposes of this Clause 5.4(ii) shall not include the Financing);
(iii) By the Purchaser, upon written notice to the Seller, if the conditions set out in Clauses 3.2 and 3.3 have not been satisfied (or satisfied subject only to Completion where applicable) or waived (where applicable) on or before the Long Stop Date; provided that the Purchaser shall not be entitled to terminate this Agreement pursuant to this Clause 5.4(iii) if Purchaser’s breach of this Agreement has prevented or materially delayed the consummation of the Transactions.
(iv) By the Seller (if the Seller is not in material breach of the Seller Warranties, covenants or agreements under this Agreement so as to cause any of the conditions set forth in Clause 3.2 and/or 3.3(i) not to be satisfied), upon written notice to the Purchaser, if there has been a material inaccuracy of any statement or warranty, or any unremedied material breach of a covenant or other agreement, of the Purchaser contained in this Agreement, which violation, breach or inaccuracy would cause any of the conditions set forth in Clause 3.1 and/or 3.3 not to be satisfied as of 4.3 On the Completion Date, the Purchaser shall: (i) pay the Purchase Price in such proportions and such violation, breach or inaccuracy has not been waived into the accounts as directed by the Seller or cured by electronic transfer of funds for same day value and (ii) send a letter substantially in the form set out in Schedule 1 to the Company's Supervisory Board (with copy to the Seller).
4.4 The obligation of each of the Seller and the Purchaser to perform each of the actions described in the foregoing provisions of this Clause 4 is deemed to be conditional on the performance by the Purchaser within 20 (twenty) Business Days after receipt by and the Purchaser Seller, respectively, of written notice thereof from the Seller or is not reasonably capable each of being cured prior to the Long Stop Date.
(v) By the Purchaser (if the Purchaser is not in material breach of the Purchaser Warranties, covenants or agreements under this Agreement so as to cause its obligations therein. If any of the conditions set forth foregoing provisions of this Clause 4 is not fully complied with, the Purchaser, in Clause 3.1 and/or 3.3 not to be satisfied), upon written notice to the case of non-compliance by the Seller, if there has been a material inaccuracy of any statement or warranty, or any unremedied material breach of a covenant or other agreement, of the Seller contained in this Agreement, which violation, breach or inaccuracy would cause any the case of the conditions set forth in Clauses 3.2 and/or 3.3(i) not to be satisfied as of the Completion Date, and such violation, breach or inaccuracy has not been waived non-compliance by the Purchaser or cured by the Seller within 20 (twenty) Business Days after receipt by the Seller of written notice thereof from the Purchaser or is not reasonably capable of being cured prior to the Long Stop Date.
(vi) By the Seller or the Purchaser, upon shall be entitled (in addition to and without prejudice to all other rights or remedies available to it, including the right to claim damages) by written notice to the other, if a court of competent jurisdiction or any other Governmental Authority shall have issued a final, non-appealable order preventing or otherwise prohibiting the consummation of the Transactions.
5.5. If this Agreement is terminated prior to Completion in accordance with Clause 5.4 above,served on such date:
(ia) this Agreement shall become void and of no further force and effect; provided, however, that to elect not to proceed with the transactions set out herein whereupon the provisions of Clause 4.5 shall apply; or
(b) to effect Completion so far as practicable having regard to the defaults which have occurred.
4.5 This Clause 4.5 shall apply only in the circumstances referred to in Clause 4.4(a) or Clause 4.6. Where this Clause 5.5 and applies, this Agreement, other than Clauses 1 (Definitions Interpretation), 6 (Notices), 7 (Assignment), 8 (Costs and InterpretationExpenses), 9 (Invalidity), 10 (Third party rights), 11 (Announcements and ConfidentialityCounterparts), 12 (NoticesVariation and Waiver), 13 (Governing Law, Disputes and Jurisdiction), 14.1 (Entire Agreement), 14.6 15 (VariationGoverning law), 14.7 16 (No AssignmentDispute Resolution), 14.8 17 (WaiverAgent for Service of Process), 14.9 and 19 (Severability), 14.10 (Supersession) and 14.11 (ExpensesPayments) shall survive automatically terminate with immediate effect and each Party's rights and obligations other than those specified above shall cease immediately on termination. Such termination shall not affect the termination rights and obligations of this Agreement indefinitely and that nothing herein shall relieve any Party existing before termination.
4.6 If, through no fault of any of the Parties, the Completion is not effected within 2 Business Days from the date hereof, (i) any liability for fraud of the Purchase Price or documents in respect of the Sale Shares that have been received will be returned to the Purchaser and the Seller, respectively, (ii) the Purchaser shall take all actions and execute all documents necessary to ensure that any breach of Sale Shares transferred to the Purchaser are transferred back to the Seller, and (iii) the provisions of this Agreement prior to such termination; and
(ii) if applicable, the Observer Clause 4.5 shall no longer be entitled to attend the meetings of the Board (or any committee thereof) and the nominees of the Purchaser appointed on the Board in accordance with Clause 6.2 shall resign with immediate effectapply.
Appears in 1 contract
Completion. 5.1. Subject to 7.1 Completion shall take place at the conditions offices of the Buyer’s Solicitors on the Completion Date when each Seller, the Company and the Buyer shall each perform their respective obligations in accordance with and as set out in Clauses 3.1Part A, 3.2 Part B and 3.3Part C respectively of Schedule 3 (Completion Requirements).
7.2 The Buyer will not be obliged to complete this Agreement until each Seller and the Company complies in full with its respective obligations under Part A and Part B of Schedule 3 (Completion Requirements).
7.3 The Buyer will not be obliged to complete the sale and purchase of any of the Sale Shares unless the sale and purchase of all of the Sale Shares is completed simultaneously, but completion of the purchase of some only of the Sale Shares will not affect the rights of the Buyer with respect to the purchase of the remainder.
7.4 If Completion shall does not take place on the Completion Date.Date because each Seller and/or the Company fails to comply with any of its obligations under this Clause 7 and Schedule 3 (Completion Requirements), the Buyer may by written notice to each Seller and the Company elect to:
5.2. The obligations of each 7.4.1 proceed to Completion to the extent reasonably practicable (including, at the option of the Parties under Clause 5.3 below are interdependent of each other. The Completion shall not occur unless all Buyer, completion of the obligations specified in Clause 5.3purchase of some only of the Sale Shares), have been simultaneously complied which will not affect the rights of the Buyer with and are fully effective.
5.3. On the Completion Date:
(i) Subject to deductions pursuant to Clause 4.4, the Purchaser shall remit the Purchase Consideration (in immediately available funds) respect to the Seller’s Bank Account.purchase of the remainder); or
(ii) The Seller shall (a) provide 7.4.2 defer Completion in relation to its Depository Participant duly executed DP Instructions in the prescribed form for the transfer some or all of the Sale Shares to the Demat Account of the Purchaser (details of which shall be provided to the Seller in writing as soon as practicable after the Execution Date); (b) procure its Depository Participant to duly acknowledge such DP Instructions; (c) deliver a copy of such acknowledgement to the Purchaser; and (d) use best endeavours to procure credit of the Sale Shares to the Demat Account of the Purchaser.
(iii) The Seller shall, to the extent it is able to do so through exercise of its voting rights, procure that a Board meeting is held at which the following business shall be transacted:
(a) the appointment of directors nominated by the Purchaser on the Board shall be approved; and
(b) an extra-ordinary general meeting of the shareholders of the Company to approve the matters set out in Clause 5.3(iii)(a) and the amendment of the Articles of Association shall be convened.
5.4. This Agreement may be terminated on or prior to the Completion Date as follows:
(i) By the mutual written consent of the Purchaser and the Seller.
(ii) By the Seller, upon written notice to the Purchaser, if the conditions set out in Clauses 3.1 and 3.3 have not been satisfied (or satisfied subject only to Completion where applicable) or waived (where applicable) on or before 270 (two hundred seventy) days from the Execution Date or such later date as the Buyer may be mutually agreed between the Parties in writing (“Long Stop Date”); provided that the Seller shall specify, being a date not be entitled to terminate this Agreement pursuant to this Clause 5.4(ii) if Seller’s breach of this Agreement has prevented or materially delayed the consummation of the Transactions (which term for the purposes of this Clause 5.4(ii) shall not include the Financing);
(iii) By the Purchaser, upon written notice to the Seller, if the conditions set out in Clauses 3.2 and 3.3 have not been satisfied (or satisfied subject only to Completion where applicable) or waived (where applicable) on or before later than the Long Stop Date; provided that the Purchaser shall not be entitled to terminate this Agreement pursuant to this Clause 5.4(iii) if Purchaser’s breach of this Agreement has prevented or materially delayed the consummation of the Transactions.
Date (iv) By the Seller (if the Seller is not in material breach of the Seller Warranties, covenants or agreements under this Agreement and so as to cause any of the conditions set forth in Clause 3.2 and/or 3.3(i) not to be satisfied), upon written notice to the Purchaser, if there has been a material inaccuracy of any statement or warranty, or any unremedied material breach of a covenant or other agreement, of the Purchaser contained in this Agreement, which violation, breach or inaccuracy would cause any of the conditions set forth in Clause 3.1 and/or 3.3 not to be satisfied as of the Completion Date, and such violation, breach or inaccuracy has not been waived by the Seller or cured by the Purchaser within 20 (twenty) Business Days after receipt by the Purchaser of written notice thereof from the Seller or is not reasonably capable of being cured prior to the Long Stop Date.
(v) By the Purchaser (if the Purchaser is not in material breach of the Purchaser Warranties, covenants or agreements under this Agreement so as to cause any of the conditions set forth in Clause 3.1 and/or 3.3 not to be satisfied), upon written notice to the Seller, if there has been a material inaccuracy of any statement or warranty, or any unremedied material breach of a covenant or other agreement, of the Seller contained in this Agreement, which violation, breach or inaccuracy would cause any of the conditions set forth in Clauses 3.2 and/or 3.3(i) not to be satisfied as of the Completion Date, and such violation, breach or inaccuracy has not been waived by the Purchaser or cured by the Seller within 20 (twenty) Business Days after receipt by the Seller of written notice thereof from the Purchaser or is not reasonably capable of being cured prior to the Long Stop Date.
(vi) By the Seller or the Purchaser, upon written notice to the other, if a court of competent jurisdiction or any other Governmental Authority shall have issued a final, non-appealable order preventing or otherwise prohibiting the consummation of the Transactions.
5.5. If this Agreement is terminated prior to Completion in accordance with Clause 5.4 above,
(i) this Agreement shall become void and of no further force and effect; provided, however, that the provisions of Clause 7, apart from this Clause 5.5 and 7.4.2, shall apply to Completion deferred pursuant to this Clause); or
7.4.3 terminate this Agreement (whether or not such failure by each Seller amounts to a repudiatory breach), without prejudice to any other remedies or accrued rights that it may have against the Seller, following which the provisions of this Agreement shall cease to have effect, other than Clauses 1 (Definitions and InterpretationInterpretations), this Clause 7, 10 (Confidentiality), 11 (Announcements and ConfidentialityAnnouncements), 12 (NoticesGeneral), 13 (Governing Law, Disputes and Jurisdiction), 14.1 (Entire Agreement), 14.6 (Variation), 14.7 (No Assignment), 14.8 (Waiver), 14.9 (Severability), 14.10 (SupersessionNotices) and 14.11 14 (Expenses) shall survive the termination of this Agreement indefinitely Applicable Law and that nothing herein shall relieve any Party from any liability for fraud or any breach of the provisions of this Agreement prior to such termination; and
(ii) if applicable, the Observer shall no longer be entitled to attend the meetings of the Board (or any committee thereof) and the nominees of the Purchaser appointed on the Board in accordance with Clause 6.2 shall resign with immediate effectJurisdictions).
Appears in 1 contract
Completion. 5.1. Subject to the conditions set out in Clauses 3.1, 3.2 and 3.3, 5.1 Completion shall take place within three (3) Business Days after the day on which the Completion Date.
5.2. The obligations of each last of the Parties under Clause 5.3 below are interdependent of each other. The Completion Conditions Precedent is satisfied when the following transactions shall not occur unless all of the obligations specified in Clause 5.3, have been simultaneously complied with and are fully effective.
5.3. On the Completion Datebe effected:
(i) Subject 5.1.1 The Company shall deliver, or procure to deductions pursuant to Clause 4.4, the Purchaser shall remit the Purchase Consideration (in immediately available funds) to the Seller’s Bank Account.
(ii) The Seller shall (a) provide to its Depository Participant duly executed DP Instructions in the prescribed form for the transfer of the Sale Shares to the Demat Account of the Purchaser (details of which shall be provided to the Seller in writing as soon as practicable after the Execution Date); (b) procure its Depository Participant to duly acknowledge such DP Instructions; (c) deliver a copy of such acknowledgement to the Purchaser; and (d) use best endeavours to procure credit of the Sale Shares to the Demat Account of the Purchaser.
(iii) The Seller shalldelivered, to Xinyi Glass (BVI) the extent it is able to do so through exercise of its voting rights, procure that a Board meeting is held at which the following business shall be transactedfollowing:
(a) a certified true copy of the appointment letter of directors nominated by the Purchaser on Listing Committee of the Stock Exchange referred to in Clause 4.1.1;
(b) certified true copies of the resolutions referred to in Clause 4.1.2;
(c) a certified true copy of the resolutions of the Board shall be approvedapproving Agreement and the transactions contemplated hereunder; and
(d) a non- disposal undertaking signed by NATSU Kumiko in respect of the Shares held by ▇▇ ▇▇ Global Limited.
5.1.2 Xinyi Glass (BVI) shall deliver or procure to be delivered to the Company the following:
(a) a subscription application/subscription applications for the Subscription Shares duly executed by Xinyi Glass (BVI) or its subsidiary or nominee;
(b) a cashier order drawn on a reputable licensed bank in Hong Kong in HK$ for an extra-ordinary general meeting aggregate sum of the shareholders HK$44,000,000in favour of the Company for the total Subscription Price payable for the Subscription Shares; and
(c) a certified true copy of the resolutions of its board of directors approving this Agreement and the transactions contemplated hereunder. No Party shall be obliged to approve complete the matters set out Subscription and perform its obligations in Clause 5.3(iii)(a) and 5 unless the amendment other Party complies with its obligations in Clause 5 at the same time.
5.1.3 Against completion of the Articles transactions referred to in Clauses 5.1.1 and 5.1.2, the Company shall allot and issue to Xinyi Glass (BVI) or its subsidiary or nominee the Subscription Shares credited as fully paid and shall enter, or procure the entering into, the name of Association shall Xinyi Glass (BVI) or its subsidiary or nominee in the Register of Members of the Company as the holder(s) of the Subscription Shares and deliver any waivers, consents or other documents necessary to vest in Xinyi Glass (BVI) or its subsidiary or nominee the full and beneficial ownership of the Subscription Shares and to enable Xinyi Glass (BVI) or its subsidiary or nominee to be convenedregistered as owners thereof (if any), and will deliver, or procure the delivery of, share certificate(s) in the name of Xinyi Glass (BVI) or its subsidiary or nominee in respect of the Subscription Shares for trading on GEM.
5.4. This Agreement may be terminated on or prior 5.2 Without prejudice to any other remedies available to the Completion Date as follows:
(i) By the mutual written consent of the Purchaser and the Seller.
(ii) By the Seller, upon written notice to the PurchaserParties, if in any respect the conditions set out in Clauses 3.1 and 3.3 have provisions of Clause 5.1 are not been satisfied complied with by any Party (or satisfied subject only to Completion where applicable) or waived (where applicablethe defaulting party) on or before 270 (two hundred seventy) days from the Execution Date or such later date as may be mutually agreed between the Parties in writing (“Long Stop Date”); provided that the Seller shall not be entitled to terminate this Agreement pursuant to this Clause 5.4(ii) if Seller’s breach of this Agreement has prevented or materially delayed the consummation of the Transactions (which term for the purposes of this Clause 5.4(ii) shall not include the Financing);
(iii) By the Purchaser, upon written notice to the Seller, if the conditions set out in Clauses 3.2 and 3.3 have not been satisfied (or satisfied subject only to Completion where applicable) or waived (where applicable) on or before the Long Stop Date; provided that the Purchaser shall not be entitled to terminate this Agreement pursuant to this Clause 5.4(iii) if Purchaser’s breach of this Agreement has prevented or materially delayed the consummation of the Transactions.
(iv) By the Seller (if the Seller is not in material breach of the Seller Warranties, covenants or agreements under this Agreement so as to cause any of the conditions set forth in Clause 3.2 and/or 3.3(i) not to be satisfied), upon written notice to the Purchaser, if there has been a material inaccuracy of any statement or warranty, or any unremedied material breach of a covenant or other agreement, of the Purchaser contained in this Agreement, which violation, breach or inaccuracy would cause any of the conditions set forth in Clause 3.1 and/or 3.3 not to be satisfied as of the Completion Date, and such violation, breach or inaccuracy has the other Parties may :
5.2.1 defer Completion to a date not been waived by the Seller or cured by the Purchaser within 20 more than twenty-eight (twenty28) Business Days days after receipt by the Purchaser of written notice thereof from the Seller or is not reasonably capable of being cured prior to the Long Stop Date.
(v) By the Purchaser (if the Purchaser is not in material breach of the Purchaser Warranties, covenants or agreements under this Agreement so as to cause any of the conditions set forth in Clause 3.1 and/or 3.3 not to be satisfied), upon written notice to the Seller, if there has been a material inaccuracy of any statement or warranty, or any unremedied material breach of a covenant or other agreement, of the Seller contained in this Agreement, which violation, breach or inaccuracy would cause any of the conditions set forth in Clauses 3.2 and/or 3.3(i) not to be satisfied as of the Completion Date, and such violation, breach or inaccuracy has not been waived by the Purchaser or cured by the Seller within 20 Date (twenty) Business Days after receipt by the Seller of written notice thereof from the Purchaser or is not reasonably capable of being cured prior to the Long Stop Date.
(vi) By the Seller or the Purchaser, upon written notice to the other, if a court of competent jurisdiction or any other Governmental Authority shall have issued a final, non-appealable order preventing or otherwise prohibiting the consummation of the Transactions.
5.5. If this Agreement is terminated prior to Completion in accordance with Clause 5.4 above,
(i) this Agreement shall become void and of no further force and effect; provided, however, without prejudice that the provisions provision of this Clause 5.5 and Clauses 1 5 shall apply to completion as so deferred);
5.2.2 proceed to Completion so far as reasonably practicable (Definitions and Interpretationwithout prejudice to its rights hereunder), 11 (Announcements and Confidentiality), 12 (Notices), 13 (Governing Law, Disputes and Jurisdiction), 14.1 (Entire Agreement), 14.6 (Variation), 14.7 (No Assignment), 14.8 (Waiver), 14.9 (Severability), 14.10 (Supersession) and 14.11 (Expenses) shall survive the termination of ; or
5.2.3 terminate this Agreement indefinitely and that nothing herein shall relieve any Party from any liability for fraud or any breach of without prejudice to the provisions of defaulting party's obligations under this Agreement prior to such termination; and
(ii) if applicable, the Observer shall no longer be entitled to attend the meetings of the Board (or any committee thereof) and the nominees of the Purchaser appointed on the Board in accordance with Clause 6.2 shall resign with immediate effectAgreement.
Appears in 1 contract
Sources: Subscription Agreement
Completion. 5.1. 7.1 Subject to the conditions set out in Clauses 3.1, 3.2 and 3.3, Completion as hereinafter provided completion shall take place at the Hong Kong Special Administrative Region on a date to be agreed between the Completion Dateparties herto ("COMPLETION DATE") between the hours of 9:00 a.m. to 5.00 p.m. or at such other place and between such other hours as may be agreed between the parties hereto.
5.2. The obligations 7.2 On Completion the CO1 Shareholders and CO2 Shareholders shall respectively deliver and produce to the Purchaser :-
(a) duly executed documents to effect the transfer of each shareholding in favour of the Parties under Clause 5.3 below are interdependent Purchaser and such person(s) as the Purchaser may direct or nominate;
(b) such waivers and/or consents and/or resolutions (whether members' or directors') as the Purchaser may require duly signed by members and/or directors;
(c) such any documents of each other. The Completion shall not occur unless all CO1 and CO2 as the Purchaser may require to enable the Purchaser and/or its representative or nominee to be registered as holders of the obligations specified CO1 and CO2;
(d) written resolutions of the members and/or of the directors of CO1 and CO2 (as the Purchaser may require) approving and/or ratifying the entering into of this Agreement and the due performance thereof;
(e) such written evidence as may be reasonably satisfactory to the Purchaser to prove that the directors of CO1 and CO2 have, before the signing of this Agreement duly made, and will, before and on completion, duly make full disclosure of their respective interests in, of or in Clause 5.3relation to this Agreement or the transaction herein contemplated pursuant to the Law, have been simultaneously complied with the Articles of Association of CO1 and are fully effective.CO2, and otherwise;
5.3. On (f) the Completion Dateoriginals as well as duly certified copies of the board resolutions of the then existing directors :-
(i) Subject revoking all existing authorities in respect of foreign investors to deductions pursuant to Clause 4.4, bankers in respect of the operation of its bank accounts and giving authority in favour of such persons as the Purchaser shall remit the Purchase Consideration (in immediately available funds) may nominate to the Seller’s Bank Account.operate such accounts;
(ii) The Seller shall appointing LUAN Yundong or such persons (awithin the maximum number permitted by the Articles of Association) provide to its Depository Participant duly executed DP Instructions in the prescribed form for the transfer of the Sale Shares to the Demat Account of as the Purchaser (details of which shall be provided to the Seller in writing may nominate as soon as practicable after the Execution Date)directors; (b) procure its Depository Participant to duly acknowledge such DP Instructions; (c) deliver a copy of such acknowledgement to the Purchaser; and (d) use best endeavours to procure credit of the Sale Shares to the Demat Account of the Purchaser.and
(iii) The Seller shall, approving the registration of the said share transfers subject to the extent it is able to do so through exercise of its voting rights, procure that a Board meeting is held at which the following business shall be transacted:same being duly stamped;
(ag) the appointment Existing Management Accounts which must show full compliance with the terms and conditions of directors nominated by the Purchaser on the Board shall be approved; andthis Agreement;
(bh) an extra-ordinary general meeting the statutory books of the shareholders of the Company CO1 and CO2 which must be duly completed and written up to approve the matters set out in Clause 5.3(iii)(a) and the amendment of the Articles of Association shall be convened.
5.4. This Agreement may be terminated on or prior to the Completion Date as follows:date;
(i) By the mutual written consent all books, accounts, papers and records of the Purchaser CO1 and the Seller.
(ii) By the Seller, upon written notice to the Purchaser, if the conditions set out in Clauses 3.1 and 3.3 have not been satisfied (or satisfied subject only to Completion where applicable) or waived (where applicable) on or before 270 (two hundred seventy) days from the Execution Date or such later date as may be mutually agreed between the Parties in writing (“Long Stop Date”); provided that the Seller shall not be entitled to terminate this Agreement pursuant to this Clause 5.4(ii) if Seller’s breach of this Agreement has prevented or materially delayed the consummation of the Transactions (which term for the purposes of this Clause 5.4(ii) shall not include the Financing)CO2;
(iiij) By the Purchaser, upon written notice resignations of Cheung as the director of CO1 and CO2 with acknowledgeme▇▇▇ ▇igned by her in a form annexed as APPENDIX 1 to the Sellereffect that she has no claim against the CO1 and CO2 for compensation for loss of office, if fees or disbursements or otherwise whatsoever;
(k) the conditions set out in Clauses 3.2 and 3.3 have not been satisfied (or satisfied subject only to Completion where applicable) or waived (where applicable) on or before the Long Stop Date; provided that the Purchaser shall not be entitled to terminate this Agreement pursuant to this Clause 5.4(iii) if Purchaser’s breach of this Agreement has prevented or materially delayed the consummation written resignations of the Transactions.
(iv) By then existing Secretary of CO1 and CO2 if any to take effect on the Seller (if the Seller is not date of completion with acknowledgements signed by each of them in material breach of the Seller Warranties, covenants or agreements under this Agreement so a form annexed hereto as to cause any of the conditions set forth in Clause 3.2 and/or 3.3(i) not to be satisfied), upon written notice APPENDIX 1 to the Purchasereffect that they have no claim against CO1 and CO2 for compensation for loss of office, if there has been a material inaccuracy of any statement fees or warranty, or any unremedied material breach of a covenant or other agreement, of the Purchaser contained in this Agreement, which violation, breach or inaccuracy would cause any of the conditions set forth in Clause 3.1 and/or 3.3 not to be satisfied as of the Completion Date, and such violation, breach or inaccuracy has not been waived by the Seller or cured by the Purchaser within 20 (twenty) Business Days after receipt by the Purchaser of written notice thereof from the Seller or is not reasonably capable of being cured prior to the Long Stop Date.
(v) By the Purchaser (if the Purchaser is not in material breach of the Purchaser Warranties, covenants or agreements under this Agreement so as to cause any of the conditions set forth in Clause 3.1 and/or 3.3 not to be satisfied), upon written notice to the Seller, if there has been a material inaccuracy of any statement or warranty, or any unremedied material breach of a covenant or other agreement, of the Seller contained in this Agreement, which violation, breach or inaccuracy would cause any of the conditions set forth in Clauses 3.2 and/or 3.3(i) not to be satisfied as of the Completion Date, and such violation, breach or inaccuracy has not been waived by the Purchaser or cured by the Seller within 20 (twenty) Business Days after receipt by the Seller of written notice thereof from the Purchaser or is not reasonably capable of being cured prior to the Long Stop Date.
(vi) By the Seller or the Purchaser, upon written notice to the other, if a court of competent jurisdiction or any other Governmental Authority shall have issued a final, non-appealable order preventing disbursements or otherwise prohibiting the consummation of the Transactions.
5.5. If this Agreement is terminated prior to Completion in accordance with Clause 5.4 above,
(i) this Agreement shall become void and of no further force and effect; provided, however, that the provisions of this Clause 5.5 and Clauses 1 (Definitions and Interpretation), 11 (Announcements and Confidentiality), 12 (Notices), 13 (Governing Law, Disputes and Jurisdiction), 14.1 (Entire Agreement), 14.6 (Variation), 14.7 (No Assignment), 14.8 (Waiver), 14.9 (Severability), 14.10 (Supersession) and 14.11 (Expenses) shall survive the termination of this Agreement indefinitely and that nothing herein shall relieve any Party from any liability for fraud or any breach of the provisions of this Agreement prior to such terminationwhatsoever; and
(ii) if applicable, the Observer shall no longer be entitled to attend the meetings of the Board (or any committee thereof) and the nominees of the Purchaser appointed on the Board in accordance with Clause 6.2 shall resign with immediate effect.
Appears in 1 contract
Completion. 5.1. Subject to the conditions set out in Clauses 3.1, 3.2 and 3.3, 5.1 Completion shall take place at the offices of the Notary at the ▇▇▇▇-▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇, ▇▇▇▇ ▇▇ The Hague, the Netherlands, at 10 a.m., on the 5th (fifth) Business Day following the date on which all the Conditions Precedent set forth in Clause 4.1 shall have been fulfilled (the “Completion Date”), or at such other place, date and time as the parties may hereafter agree in writing.
5.2 At Completion and following receipt by the Notary of the Consideration the Seller and the Purchaser shall comply with their respective obligations set out in Schedule 10.
5.3 If the obligations of the Seller or the Purchaser under Schedule 10 are not complied with on the Completion Date.
5.2. The obligations of each of the Parties under Clause 5.3 below are interdependent of each other. The Completion shall not occur unless all of the obligations specified Date in Clause 5.3, have been simultaneously complied with and are fully effective.
5.3. On the Completion Date:
(i) Subject to deductions pursuant to Clause 4.4any material respect, the Purchaser shall remit the Purchase Consideration (in immediately available fundsthe case of default by the Seller) or the Seller (in the case of a default by the Purchaser) shall be entitled (in addition to and without prejudice to all other rights and remedies available) by written notice to the Purchaser or the Seller’s Bank Account.
(ii) The Seller shall (a) provide to its Depository Participant duly executed DP Instructions in , as the prescribed form for the transfer of the Sale Shares to the Demat Account of the Purchaser (details of which shall be provided to the Seller in writing as soon as practicable after the Execution Date); (b) procure its Depository Participant to duly acknowledge such DP Instructions; (c) deliver a copy of such acknowledgement to the Purchaser; and (d) use best endeavours to procure credit of the Sale Shares to the Demat Account of the Purchaser.
(iii) The Seller shall, to the extent it is able to do so through exercise of its voting rights, procure that a Board meeting is held at which the following business shall be transactedcase may be:
(a) the appointment to defer Completion for a period of directors nominated by the Purchaser on the Board shall be approved; and
up to ten (b) an extra-ordinary general meeting of the shareholders of the Company to approve the matters set out in Clause 5.3(iii)(a) and the amendment of the Articles of Association shall be convened.
5.4. This Agreement may be terminated on or prior to the Completion Date as follows:
(i) By the mutual written consent of the Purchaser and the Seller.
(ii) By the Seller, upon written notice to the Purchaser, if the conditions set out in Clauses 3.1 and 3.3 have not been satisfied (or satisfied subject only to Completion where applicable) or waived (where applicable) on or before 270 (two hundred seventy) days from the Execution Date or such later date as may be mutually agreed between the Parties in writing (“Long Stop Date”); provided that the Seller shall not be entitled to terminate this Agreement pursuant to this Clause 5.4(ii) if Seller’s breach of this Agreement has prevented or materially delayed the consummation of the Transactions (which term for the purposes of this Clause 5.4(ii) shall not include the Financing);
(iii) By the Purchaser, upon written notice to the Seller, if the conditions set out in Clauses 3.2 and 3.3 have not been satisfied (or satisfied subject only to Completion where applicable) or waived (where applicable) on or before the Long Stop Date; provided that the Purchaser shall not be entitled to terminate this Agreement pursuant to this Clause 5.4(iii) if Purchaser’s breach of this Agreement has prevented or materially delayed the consummation of the Transactions.
(iv) By the Seller (if the Seller is not in material breach of the Seller Warranties, covenants or agreements under this Agreement so as to cause any of the conditions set forth in Clause 3.2 and/or 3.3(i) not to be satisfied), upon written notice to the Purchaser, if there has been a material inaccuracy of any statement or warranty, or any unremedied material breach of a covenant or other agreement, of the Purchaser contained in this Agreement, which violation, breach or inaccuracy would cause any of the conditions set forth in Clause 3.1 and/or 3.3 not to be satisfied as of the Completion Date, and such violation, breach or inaccuracy has not been waived by the Seller or cured by the Purchaser within 20 (twenty10) Business Days after receipt by the Purchaser of written notice thereof from the Seller or (provided always that such date is not reasonably capable of being cured prior to the Long Stop Date.
(v) By the Purchaser (if the Purchaser is not in material breach of the Purchaser Warranties, covenants or agreements under this Agreement so as to cause any of the conditions set forth in Clause 3.1 and/or 3.3 not to be satisfied), upon written notice to the Seller, if there has been a material inaccuracy of any statement or warranty, or any unremedied material breach of a covenant or other agreement, of the Seller contained in this Agreement, which violation, breach or inaccuracy would cause any of the conditions set forth in Clauses 3.2 and/or 3.3(i) not to be satisfied as of the Completion Date, and such violation, breach or inaccuracy has not been waived by the Purchaser or cured by the Seller within 20 (twenty) Business Days after receipt by the Seller of written notice thereof from the Purchaser or is not reasonably capable of being cured prior to the Long Stop Date.
(vi) By the Seller or the Purchaser, upon written notice to the other, if a court of competent jurisdiction or any other Governmental Authority shall have issued a final, non-appealable order preventing or otherwise prohibiting the consummation of the Transactions.
5.5. If this Agreement is terminated prior to Completion in accordance with Clause 5.4 above,
(i) this Agreement shall become void and of no further force and effect; provided, however, that the provisions of this Clause 5.5 and Clauses 1 5 shall apply to Completion as so deferred;
(Definitions and Interpretation)b) to require the parties to proceed to Completion as far as practicable, 11 having regard to the defaults which have occurred; and
(Announcements and Confidentiality), 12 c) subject to Completion having first been deferred for a period of at least ten (Notices), 13 (Governing Law, Disputes and Jurisdiction), 14.1 (Entire Agreement), 14.6 (Variation), 14.7 (No Assignment), 14.8 (Waiver), 14.9 (Severability), 14.10 (Supersession10) Business Days under Clause 5.3(a) and 14.11 (Expenses) shall survive the termination parties having used reasonable endeavours to effect Completion during that period, to terminate this Agreement by notice in writing to the Purchaser or the Seller, as the case may be.
5.4 All amounts expressed to be payable to the Seller pursuant to any provision of this Agreement indefinitely shall be paid (without set-off or deduction) to the Designated Account, and the receipt of each such amount in the Designated Account shall be an absolute discharge to the Purchaser of the obligation to pay such amount and the Purchaser shall not be concerned to see to the application of any such amount thereafter.
5.5 The Notary is a partner of Bird & Bird LLP, the firm of the external legal advisors to the Purchaser. The Seller acknowledges that nothing herein it is aware of the relevant provisions of the Ordinance Interdisciplinary Cooperation (Verordening Interdisciplinaire Samenwerking) and the articles 19 through 22 of the Professional Code of Conduct (Verordening Beroeps- en Gedragsregels) of the Royal Professional Organisation of Civil Law Notaries (Koninklijke Notariële Beroepsorganisatie). The Seller hereby acknowledges and agrees that the Notary may advise and act on behalf of the Purchaser with respect to this Agreement, and any agreements and/or any disputes related to or resulting from this Agreement.
5.6 All actions and transactions constituting the Completion pursuant to this Agreement (including, without limitation, this Clause 5 and Schedule 10), as well as all actions and transactions constituting the Completion under the Verres SPA, shall relieve any Party from any liability for fraud be regarded as one single transaction so that, at the option of the party having interest in the performance of the relevant specific action or any breach of transaction, no action or transaction constituting the Completion shall be deemed to have taken place if and until all other actions and transactions constituting the Completion shall have been properly performed in accordance with the provisions of this Agreement prior to such termination; and
(ii) if applicable, the Observer shall no longer be entitled to attend the meetings and of the Board (or any committee thereof) and the nominees of the Purchaser appointed on the Board in accordance with Clause 6.2 shall resign with immediate effectVerres SPA.
Appears in 1 contract
Sources: Sale and Purchase Agreement (Shiloh Industries Inc)
Completion. 5.1. Subject to the conditions set out in Clauses 3.1, 3.2 and 3.3, 5.1 Completion shall take place at the office of the Vendors’ Solicitors on the Completion Date.
5.2. The obligations of 5.2 At Completion the Vendors shall each of the Parties under Clause 5.3 below are interdependent of each other. The Completion shall not occur unless all of the obligations specified in Clause 5.3, have been simultaneously complied with and are fully effective.
5.3. On the Completion Date:
(i) Subject deliver to deductions pursuant to Clause 4.4, the Purchaser shall remit the Purchase Consideration (in immediately available funds) to the Seller’s Bank Account.
(ii) The Seller shall (a) provide to its Depository Participant duly executed DP Instructions in the prescribed form for the transfer transfers of the Sale Shares accompanied by the relevant original share certificates (if not already in the possession of the Purchaser) or an appropriate indemnification in the customary form in respect of any lost certificates together with such other deeds and documents as may be necessary to transfer to the Demat Account Purchaser or as it may direct the legal and beneficial ownership of the shares free from all liens, charges or Encumbrances of every description.
5.3 At Completion the Vendors shall deliver or procure to be delivered to the Purchaser those items set out in Schedule 3;
5.4 At Completion the Vendors shall procure that the Directors of each Group Company shall convene and hold a meeting of the board of directors of each Group Company at which the Directors shall:
5.4.1 in the case of the Company, vote in favour of the registration of the Purchaser (details and/or its nominee(s) as member(s) of which shall be provided to the Seller Company in writing as soon as practicable after the Execution Date); (b) procure its Depository Participant to duly acknowledge such DP Instructions; (c) deliver a copy of such acknowledgement to the Purchaser; and (d) use best endeavours to procure credit respect of the Sale Shares (subject only to the Demat Account production of duly stamped transfers);
5.4.2 revoke all existing mandates for the Purchaser.
(iii) The Seller shall, operation of bank accounts and issue new mandates giving authority to the extent it is able to do so through exercise of its voting rights, procure that a Board meeting is held at which the following business shall be transacted:
(a) the appointment of directors persons nominated by the Purchaser;
5.4.3 change the registered office of each Irish registered Group Company to and change the registered offices, corporate seats or principal places of business of all non-Irish registered Group Companies to such addresses as the Purchaser on may direct;
5.4.4 appoint such person or persons as the Board shall Purchaser may nominate as directors with immediate effect and approve the resignations of such persons as directors and secretary as may be approvedrequired by the Purchaser; and
5.4.5 if the Purchaser so requests, appoint such firm as the Purchaser may nominate as auditors with immediate effect and approve the resignation of Deloitte & Touche as auditors.
5.5 At Completion the Purchaser shall:
5.5.1 pay to the Vendors’ Solicitors in immediately available funds the sum of €76,745,589 (b) an extra-ordinary general meeting being the Consideration less the Escrow Amount), and the receipt of the shareholders Vendors’ Solicitors shall be a sufficient discharge to the Purchaser in respect of such payment;
5.5.2 pay the Company to approve Escrow Amount into the matters set out in Clause 5.3(iii)(a) Escrow Account.
5.6 Upon the signing of this Agreement, the parties hereto shall enter into the Tax Deed, the Escrow Agreement and the amendment of the Articles of Association shall be convenedDisclosure Letter.
5.4. This Agreement may be terminated on or prior to the Completion Date as follows:
(i) By the mutual written consent of the Purchaser and the Seller.
(ii) By the Seller, upon written notice to the Purchaser, if the conditions set out in Clauses 3.1 and 3.3 have not been satisfied (or satisfied subject only to Completion where applicable) or waived (where applicable) on or before 270 (two hundred seventy) days from the Execution Date or such later date as may be mutually agreed between the Parties in writing (“Long Stop Date”); provided that the Seller shall not be entitled to terminate this Agreement pursuant to this Clause 5.4(ii) if Seller’s breach of this Agreement has prevented or materially delayed the consummation of the Transactions (which term for the purposes of this Clause 5.4(ii) shall not include the Financing);
(iii) By the Purchaser, upon written notice to the Seller, if the conditions set out in Clauses 3.2 and 3.3 have not been satisfied (or satisfied subject only to Completion where applicable) or waived (where applicable) on or before the Long Stop Date; provided that the 5.7 The Purchaser shall not be entitled obliged to terminate complete this Agreement pursuant to unless the Vendors comply fully with all their obligations under this Clause 5.4(iii) if Purchaser’s breach of 5.
5.8 The Vendors shall not be obliged to complete this Agreement has prevented or materially delayed unless the consummation of the Transactions.
(iv) By the Seller (if the Seller is not in material breach of the Seller Warranties, covenants or agreements Purchaser complies fully with its obligations under this Agreement so as to cause any of the conditions set forth in Clause 3.2 and/or 3.3(i) not to be satisfied), upon written notice to the Purchaser, if there has been a material inaccuracy of any statement or warranty, or any unremedied material breach of a covenant or other agreement, of the Purchaser contained in this Agreement, which violation, breach or inaccuracy would cause any of the conditions set forth in Clause 3.1 and/or 3.3 not to be satisfied as of the Completion Date, and such violation, breach or inaccuracy has not been waived by the Seller or cured by the Purchaser within 20 (twenty) Business Days after receipt by the Purchaser of written notice thereof from the Seller or is not reasonably capable of being cured prior to the Long Stop Date5.
(v) By the Purchaser (if the Purchaser is not in material breach of the Purchaser Warranties, covenants or agreements under this Agreement so as to cause any of the conditions set forth in Clause 3.1 and/or 3.3 not to be satisfied), upon written notice to the Seller, if there has been a material inaccuracy of any statement or warranty, or any unremedied material breach of a covenant or other agreement, of the Seller contained in this Agreement, which violation, breach or inaccuracy would cause any of the conditions set forth in Clauses 3.2 and/or 3.3(i) not to be satisfied as of the Completion Date, and such violation, breach or inaccuracy has not been waived by the Purchaser or cured by the Seller within 20 (twenty) Business Days after receipt by the Seller of written notice thereof from the Purchaser or is not reasonably capable of being cured prior to the Long Stop Date.
(vi) By the Seller or the Purchaser, upon written notice to the other, if a court of competent jurisdiction or any other Governmental Authority shall have issued a final, non-appealable order preventing or otherwise prohibiting the consummation of the Transactions.
5.5. If this Agreement is terminated prior to Completion in accordance with Clause 5.4 above,
(i) this Agreement shall become void and of no further force and effect; provided, however, that the provisions of this Clause 5.5 and Clauses 1 (Definitions and Interpretation), 11 (Announcements and Confidentiality), 12 (Notices), 13 (Governing Law, Disputes and Jurisdiction), 14.1 (Entire Agreement), 14.6 (Variation), 14.7 (No Assignment), 14.8 (Waiver), 14.9 (Severability), 14.10 (Supersession) and 14.11 (Expenses) shall survive the termination of this Agreement indefinitely and that nothing herein shall relieve any Party from any liability for fraud or any breach of the provisions of this Agreement prior to such termination; and
(ii) if applicable, the Observer shall no longer be entitled to attend the meetings of the Board (or any committee thereof) and the nominees of the Purchaser appointed on the Board in accordance with Clause 6.2 shall resign with immediate effect.
Appears in 1 contract
Sources: Agreement for the Sale and Purchase of Shares (INFONXX, Inc.)
Completion. 5.1. Subject to the conditions set out in Clauses 3.1, 3.2 and 3.3, 7.1 Completion shall take place on at the Completion Date.offices of the [ ] immediately after the signature of this agreement when:
5.2. The obligations of (a) each party shall provide to the others evidence in a form reasonably satisfactory to the others that it (and each of its relevant Affiliates entering into an Implementation Agreement) has all necessary corporate approvals and consents and its signatories have necessary authority to enter into this agreement and the Parties under Clause 5.3 below are interdependent other agreements referred to herein;
(b) each party shall (or shall procure that its relevant Affiliates will) duly execute and, to the extent applicable, complete the Implementation Agreements and the Tax Deed of each other. The Completion Covenant;
(c) the Seller shall not occur unless all deliver to the possession and control of the obligations specified in Clause 5.3, have been simultaneously complied with and are fully effective.
5.3. On the Completion DatePurchaser:
(i) Subject to deductions pursuant to Clause 4.4, a duly executed transfer or transfers in favour of the Purchaser shall remit (or such Affiliate of the Purchase Consideration (in immediately available fundsPurchaser as the Purchaser may nominate) to of all the Seller’s Bank Account.Sale Shares;
(ii) The Seller shall (ashare certificate(s) provide or other documents of title relating to its Depository Participant duly executed DP Instructions in the prescribed form for the transfer of the Sale Shares (or an express indemnity in a form reasonably satisfactory to the Demat Account Purchaser in the case of the Purchaser (details any missing certificates or documents of which shall be provided to the Seller in writing as soon as practicable after the Execution Date); (b) procure its Depository Participant to duly acknowledge such DP Instructions; (c) deliver a copy of such acknowledgement to the Purchaser; and (d) use best endeavours to procure credit of the Sale Shares to the Demat Account of the Purchaser.
(iii) The Seller shall, to the extent it is able to do so through exercise of its voting rights, procure that a Board meeting is held at which the following business shall be transacted:
(a) the appointment of directors nominated by the Purchaser on the Board shall be approved; and
(b) an extra-ordinary general meeting of the shareholders of the Company to approve the matters set out in Clause 5.3(iii)(a) and the amendment of the Articles of Association shall be convened.
5.4. This Agreement may be terminated on or prior to the Completion Date as follows:
(i) By the mutual written consent of the Purchaser and the Seller.
(ii) By the Seller, upon written notice to the Purchaser, if the conditions set out in Clauses 3.1 and 3.3 have not been satisfied (or satisfied subject only to Completion where applicable) or waived (where applicable) on or before 270 (two hundred seventy) days from the Execution Date or such later date as may be mutually agreed between the Parties in writing (“Long Stop Date”); provided that the Seller shall not be entitled to terminate this Agreement pursuant to this Clause 5.4(ii) if Seller’s breach of this Agreement has prevented or materially delayed the consummation of the Transactions (which term for the purposes of this Clause 5.4(ii) shall not include the Financingtitle);
(iii) By the Purchaser, upon written notice company books relating to the SellerCompany, if the conditions set out in Clauses 3.2 including certificates of incorporation, common seals, minute books, statutory registers, shareholders' agreements and 3.3 have not been satisfied share certificate books (or satisfied subject only duly written up to Completion where applicable) or waived (where applicable) on or before the Long Stop Date; provided that the Purchaser shall not be entitled to terminate this Agreement pursuant to this Clause 5.4(iii) if Purchaser’s breach of this Agreement has prevented or materially delayed the consummation of the Transactions.date);
(iv) By resignations of all the directors and secretary of the Company;
(v) the written resignation of the auditors of the Company to take effect on Completion, with acknowledgments signed by them to the effect that they have no claim against the Company and to the effect that there are no circumstances connected with their resignation which they consider should be brought to the notice of the shareholders or creditors of the Company;
(vi) bank statements in respect of every account which the Company has, dated two days prior to the Completion Date and the relevant reconciliation statements prepared on the previous Business Day;
(vii) the Business Data;
(viii) the documentation and title deeds to the Property in accordance with the provisions of Part II of Schedule 2;
(ix) the Implementation Agreements duly executed by the Seller (if the Seller is not in material breach and/or Affiliates of the Seller Warranties, covenants as applicable; and
(x) the Disclosure Letter;
(d) the Purchaser shall pay to the Seller the Estimated Consideration;
(e) the Purchaser or agreements under this Agreement so as to cause any another member of the conditions set forth in Clause 3.2 and/or 3.3(i) not to be satisfied), upon written notice Purchaser's Group shall procure that all Intra-group Loans due from the Company to the Purchaser, if there has been a material inaccuracy of any statement or warranty, Seller or any unremedied material breach of a covenant or other agreement, Affiliate of the Purchaser contained in this Agreement, which violation, breach Seller are repaid by the Company and the Seller or inaccuracy would cause any another member of the conditions set forth in Clause 3.1 and/or 3.3 not Seller's Group shall procure that all Intra-group Loans due to be satisfied as the Company from the Seller or any Affiliate of the Completion Date, and such violation, breach or inaccuracy has not been waived Seller are repaid by the Seller or cured by the Purchaser within 20 its relevant Affiliates;
(twentyf) Business Days after receipt by the Purchaser of written notice thereof from the Seller shall take or is not reasonably capable of being cured prior to shall procure the Long Stop Date.
(v) By the Purchaser (if the Purchaser is not in material breach of the Purchaser Warrantiestaking of, covenants or agreements under this Agreement so such steps as to cause any of the conditions set forth in Clause 3.1 and/or 3.3 not to may be satisfied), upon written notice to the Seller, if there has been a material inaccuracy of any statement or warranty, or any unremedied material breach of a covenant or other agreement, of the Seller contained in this Agreement, which violation, breach or inaccuracy would cause any of the conditions set forth in Clauses 3.2 and/or 3.3(i) not to be satisfied as of the Completion Date, and such violation, breach or inaccuracy has not been waived by the Purchaser or cured by the Seller within 20 (twenty) Business Days after receipt by the Seller of written notice thereof from the Purchaser or is not reasonably capable of being cured prior to the Long Stop Date.
(vi) By the Seller or the Purchaser, upon written notice to the other, if a court of competent jurisdiction or any other Governmental Authority shall have issued a final, non-appealable order preventing or otherwise prohibiting the consummation of the Transactions.
5.5. If this Agreement is terminated prior to Completion in accordance with Clause 5.4 above,necessary to:
(i) this Agreement shall become void approve the transfers referred to in Clause 7.1(c)(i) (subject only to the Purchaser arranging and of no further force and effect; provided, however, that paying any taxes or duties arising in relation to the provisions of this Clause 5.5 and Clauses 1 (Definitions and Interpretationtransfer), 11 (Announcements and Confidentiality), 12 (Notices), 13 (Governing Law, Disputes and Jurisdiction), 14.1 (Entire Agreement), 14.6 (Variation), 14.7 (No Assignment), 14.8 (Waiver), 14.9 (Severability), 14.10 (Supersession) and 14.11 (Expenses) shall survive the termination of this Agreement indefinitely and that nothing herein shall relieve any Party from any liability for fraud or any breach of the provisions of this Agreement prior to such termination; and
(ii) if applicable, appoint such directors and secretary as the Observer shall no longer be entitled to attend Purchaser may specify as directors and the meetings secretary of the Board Company; and
(iii) release the securities, guarantees, claims and indemnities existing immediately prior to Completion other than those arising in the Ordinary Course of Business, owed or due to or claimed by the Seller or any committee thereofAffiliate (being an Affiliate after Completion) from the Company, true and complete particulars of which are set out in Schedule 10;
(g) each party and the nominees Purchaser shall deliver a copy of the Purchaser appointed on Tax Deed of Covenant duly executed to the Board in accordance with Clause 6.2 shall resign with immediate effectother parties.
Appears in 1 contract
Sources: Share Sale and Purchase Agreement (Nl Industries Inc)
Completion. 5.1. 3.1 The Parties agree that the completion of the Sale & Purchase as contemplated in this Agreement (hereinafter referred to as “the Completion”) shall take place at the principal place of business of Hedi Property (or at such other places the Parties may agree) on or before the 3rd Business Day following the Unconditional Date (hereinafter referred to as “the Completion Date”).
3.2 On the Completion Date, the Sellers shall deliver or caused to be delivered to the Purchaser:-
3.2.1 the duly executed (but undated and unstamped) by SCS the document for the transfer of ownership in respect of the Sale Shares (hereinafter referred to as “the Transfer”);
3.2.2 the original share certificates of the Sale Shares; and
3.2.3 a copy of the resolution of the board of directors of PPGCT (hereinafter referred to as “the PPGCT Board Resolution”) certified by the Company Secretary or a director of PPGCT, evidencing their approvals of the transfer of the Sale Shares from SCS to the Purchaser contemplated in this Agreement (hereinafter the documents pursuant to sub-clauses of Clause 3.2 herein shall collectively be referred to as “the Documents”)
3.3 On the Completion Date, the Purchaser shall issue to GOLU (in the name of Gold Union Inc. and address as ▇▇▇▇ ▇▇-▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇.▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ PJU6, 47000 Petaling Jaya, Selangor, Malaysia) or at the discretion and directive of GOLU, to the shareholders of GOLU (in the names of the shareholders and addresses to be provided by GOLU) a total of ONE MILLION SIX HUNDRED THIRTY ONE THOUSAND TWO HUNDRED AND FORTY FIVE (1,631,245) shares of the Purchaser’s ordinary shares, valuing the shares of the Purchaser’s ordinary share at RINGGIT MALAYSIA ONE ONLY (RM1.00) per share, being the full payment towards the Total Consideration for the Sale Shares (hereinafter referred to as “the New Hedi Shares”)
3.4 Subject to the conditions set out full satisfaction of the delivery of the Documents by the Sellers to the Purchaser AND the delivery of the New Hedi Shares by the Purchaser to GOLU (or to the shareholders of GOLU as may be informed by GOLU) to a representative of GOLU (or the shareholders of GOLU) as may be informed to the Purchaser by the Sellers in Clauses 3.1due course in accordance to the provisions herein, 3.2 and 3.3, the Completion shall take be deemed to have taken place on the Completion Date.
5.2. The obligations of each of the Parties under Clause 5.3 below are interdependent of each other. The Completion shall not occur unless all of the obligations specified in Clause 5.3, have been simultaneously complied with and are fully effective.
5.3. On the Completion Date:
(i) Subject to deductions pursuant to Clause 4.4, the Purchaser shall remit the Purchase Consideration (in immediately available funds) to the Seller’s Bank Account.
(ii) The Seller shall (a) provide to its Depository Participant duly executed DP Instructions in the prescribed form for the transfer of the Sale Shares to the Demat Account of the Purchaser (details of which shall be provided to the Seller in writing as soon as practicable after the Execution Date); (b) procure its Depository Participant to duly acknowledge such DP Instructions; (c) deliver a copy of such acknowledgement to the Purchaser; and (d) use best endeavours to procure credit of the Sale Shares to the Demat Account of the Purchaser.
(iii) The Seller shall, to the extent it is able to do so through exercise of its voting rights, procure that a Board meeting is held at which the following business shall be transacted:
(a) the appointment of directors nominated by the Purchaser on the Board shall be approved; and
(b) an extra-ordinary general meeting of the shareholders of the Company to approve the matters set out in Clause 5.3(iii)(a) and the amendment of the Articles of Association shall be convened.
5.4. This Agreement may be terminated on or prior to the Completion Date as follows:
(i) By the mutual written consent of the Purchaser and the Seller.
(ii) By the Seller, upon written notice to the Purchaser, if the conditions set out in Clauses 3.1 and 3.3 have not been satisfied (or satisfied subject only to Completion where applicable) or waived (where applicable) on or before 270 (two hundred seventy) days from the Execution Date or such later date as may be mutually agreed between the Parties in writing (“Long Stop Date”); provided that the Seller shall not be entitled to terminate this Agreement pursuant to this Clause 5.4(ii) if Seller’s breach of this Agreement has prevented or materially delayed the consummation of the Transactions (which term for the purposes of this Clause 5.4(ii) shall not include the Financing);
(iii) By the Purchaser, upon written notice to the Seller, if the conditions set out in Clauses 3.2 and 3.3 have not been satisfied (or satisfied subject only to Completion where applicable) or waived (where applicable) on or before the Long Stop Date; provided that the Purchaser shall not be entitled to terminate this Agreement pursuant to this Clause 5.4(iii) if Purchaser’s breach of this Agreement has prevented or materially delayed the consummation of the Transactions.
(iv) By the Seller (if the Seller is not in material breach of the Seller Warranties, covenants or agreements under this Agreement so as to cause any of the conditions set forth in Clause 3.2 and/or 3.3(i) not to be satisfied), upon written notice to the Purchaser, if there has been a material inaccuracy of any statement or warranty, or any unremedied material breach of a covenant or other agreement, of the Purchaser contained in this Agreement, which violation, breach or inaccuracy would cause any of the conditions set forth in Clause 3.1 and/or 3.3 not to be satisfied as of the Completion Date, and such violation, breach or inaccuracy has not been waived by the Seller or cured by the Purchaser within 20 (twenty) Business Days after receipt by the Purchaser of written notice thereof from the Seller or is not reasonably capable of being cured prior to the Long Stop Date.
(v) By the Purchaser (if the Purchaser is not in material breach of the Purchaser Warranties, covenants or agreements under this Agreement so as to cause any of the conditions set forth in Clause 3.1 and/or 3.3 not to be satisfied), upon written notice to the Seller, if there has been a material inaccuracy of any statement or warranty, or any unremedied material breach of a covenant or other agreement, of the Seller contained in this Agreement, which violation, breach or inaccuracy would cause any of the conditions set forth in Clauses 3.2 and/or 3.3(i) not to be satisfied as of the Completion Date, and such violation, breach or inaccuracy has not been waived by the Purchaser or cured by the Seller within 20 (twenty) Business Days after receipt by the Seller of written notice thereof from the Purchaser or is not reasonably capable of being cured prior to the Long Stop Date.
(vi) By the Seller or the Purchaser, upon written notice to the other, if a court of competent jurisdiction or any other Governmental Authority shall have issued a final, non-appealable order preventing or otherwise prohibiting the consummation of the Transactions.
5.5. If this Agreement is terminated prior to Completion in accordance with Clause 5.4 above,
(i) this Agreement shall become void and of no further force and effect; provided, however, that the provisions of this Clause 5.5 and Clauses 1 (Definitions and Interpretation), 11 (Announcements and Confidentiality), 12 (Notices), 13 (Governing Law, Disputes and Jurisdiction), 14.1 (Entire Agreement), 14.6 (Variation), 14.7 (No Assignment), 14.8 (Waiver), 14.9 (Severability), 14.10 (Supersession) and 14.11 (Expenses) shall survive the termination of this Agreement indefinitely and that nothing herein shall relieve any Party from any liability for fraud or any breach of the provisions of this Agreement prior to such termination; and
(ii) if applicable, the Observer shall no longer be entitled to attend the meetings of the Board (or any committee thereof) and the nominees of the Purchaser appointed on the Board in accordance with Clause 6.2 shall resign with immediate effect.
Appears in 1 contract
Sources: Purchase Agreement (Gold Union Inc.)
Completion. 5.1. Subject to the conditions set out in Clauses 3.1, 3.2 and 3.3, 4.1 Completion shall take place on the Completion Date.
5.2. The obligations of each of the Parties under Clause 5.3 below are interdependent of each other. The Completion shall not occur unless all of the obligations specified in Clause 5.3, have been simultaneously complied with and are fully effective.
5.3. On the Completion Date:
(i) Subject to deductions pursuant to Clause 4.4, the Purchaser shall remit the Purchase Consideration (in immediately available funds) to the Seller’s Bank Account.
(ii) The Seller shall (a) provide to its Depository Participant duly executed DP Instructions in the prescribed form for the transfer of the Sale Shares to the Demat Account of the Purchaser (details of which shall be provided to the Seller in writing as soon as practicable after the Execution Date); (b) procure its Depository Participant to duly acknowledge such DP Instructions; (c) deliver a copy of such acknowledgement to the Purchaser; and (d) use best endeavours to procure credit of the Sale Shares to the Demat Account of the Purchaser.
(iii) The Seller shall, to the extent it is able to do so through exercise of its voting rights, procure that a Board meeting is held at which the following business shall be transactedconditional on:
(a) the appointment Resolutions and any other resolution of directors nominated the Shareholders and Preference Shareholders required for the Company to complete the Transactions (whether as a matter of law, regulation or otherwise) having been duly passed by the Purchaser requisite majorities at each of the General Meeting and Preference Shareholder Meeting (or in each case at any adjournment thereof) without material amendment;
(b) it being lawful for the Company to complete the Transactions pursuant to the Law including, without limitation, the directors of the Company being able to certify immediately prior to Completion that the Company will meet the solvency test contained in the Law immediately following Completion;
(c) all applicable requirements of all stock or securities exchanges on which any of the Board Company’s securities are quoted, listed or traded having been met as regards the Transactions and the applicable rules of any Regulatory Authority having been met as regards the Transactions; and
(d) the RH Sale Contract having been entered into on or around the date of this Agreement, remaining in full force and effect and, save for any condition in the RH Sale Contract relating to this Agreement being and remaining unconditional, becoming and remaining wholly unconditional in accordance with its terms, (together the “Conditions”).
4.2 To the extent that the Company does procure Placees for some or all of the Placing Shares then (and subject to the satisfaction or waiver by the Company of the Conditions) the Placing will proceed in respect of the Placing Shares in respect of which Placees have been procured.
4.3 Insofar as the Company reasonably requires information from the Invesco Funds or IAM (including, without limitation, information relating to themselves and any persons ‘acting in concert’ (as defined in the Takeover Code) with them respectively) for the preparation and posting of the Circulars, the Invesco Funds and IAM each agree to provide the relevant information to the Company promptly following any request from the Company to provide such information.
4.4 The Company may, in its absolute discretion, waive any or any part of any of the Conditions set out in Clause 4.1 (to the extent such Conditions are capable of being waived without breach of any applicable legal or regulatory requirements) by notice in writing to IAM.
4.5 If any Condition has not been satisfied or waived by or becomes incapable of being satisfied or waived by the Long Stop Date, this Agreement and everything contained in it shall be approvedterminate. In that event, no party shall have any claim against any other party whatsoever in respect of this Agreement provided that:
(a) the provisions of Clause 1 ( ), this Clause 4.5, Clause 7 ( ), Clause 9 ( ), Clause 17 ( ) and Clause 18 ( ) shall remain in full force and effect; and
(b) an extra-ordinary general meeting such termination shall be without prejudice to any accrued rights, obligations or liabilities of any party under this Agreement which have accrued in consequence of a breach of this Agreement before such termination.
4.6 Completion shall take place at 11.00 am (UK time) within three Business Days following the satisfaction (or waiver) of the shareholders of the Company to approve the matters Condition set out in Clause 5.3(iii)(a4.1(a) and the amendment of the Articles of Association shall be convened.
5.4. This Agreement may be terminated on or prior subject to the Completion Date as follows:
(i) By the mutual written consent of the Purchaser and the Seller.
(ii) By the Seller, upon written notice to the Purchaser, if the conditions set out in Clauses 3.1 and 3.3 have not been other Conditions being satisfied (or satisfied subject only to Completion where applicable) or waived (where applicable) on or before 270 (two hundred seventy) days from the Execution Date or such later date as may be mutually agreed between the Parties in writing (“Long Stop Date”); provided that the Seller shall not be entitled to terminate this Agreement pursuant to this Clause 5.4(ii) if Seller’s breach of this Agreement has prevented or materially delayed the consummation of the Transactions (which term for the purposes of this Clause 5.4(ii) shall not include the Financing);
(iii) By the Purchaser, upon written notice to the Seller, if the conditions set out in Clauses 3.2 and 3.3 have not been satisfied (or satisfied subject only to Completion where applicable) or waived (where applicable) on or before the Long Stop Date; provided that the Purchaser shall not be entitled to terminate this Agreement pursuant to this Clause 5.4(iii) if Purchaser’s breach of this Agreement has prevented or materially delayed the consummation of the Transactions.
(iv) By the Seller (if the Seller is not in material breach of the Seller Warranties, covenants or agreements under this Agreement so as to cause any of the conditions set forth in Clause 3.2 and/or 3.3(i) not to be satisfied), upon written notice to the Purchaser, if there has been a material inaccuracy of any statement or warranty, or any unremedied material breach of a covenant or other agreement, of the Purchaser contained in this Agreement, which violation, breach or inaccuracy would cause any of the conditions set forth in Clause 3.1 and/or 3.3 not to be satisfied as of the Completion Date, and such violation, breach or inaccuracy has not been waived by the Seller or cured by the Purchaser within 20 (twenty) Business Days after receipt by the Purchaser of written notice thereof from the Seller or is not reasonably capable of being cured prior to the Long Stop Date.
(v) By the Purchaser (if the Purchaser is not in material breach of the Purchaser Warranties, covenants or agreements under this Agreement so as to cause any of the conditions set forth in Clause 3.1 and/or 3.3 not to be satisfied), upon written notice to the Seller, if there has been a material inaccuracy of any statement or warranty, or any unremedied material breach of a covenant or other agreement, of the Seller contained in this Agreement, which violation, breach or inaccuracy would cause any of the conditions set forth in Clauses 3.2 and/or 3.3(i) not to be satisfied as of the Completion Date, and such violation, breach or inaccuracy has not been waived by the Purchaser or cured by the Seller within 20 (twenty) Business Days after receipt by the Seller of written notice thereof from the Purchaser or is not reasonably capable of being cured prior to the Long Stop Date.
(vi) By the Seller or the Purchaser, upon written notice to the other, if a court of competent jurisdiction or any other Governmental Authority shall have issued a final, non-appealable order preventing or otherwise prohibiting the consummation of the Transactions.
5.5. If this Agreement is terminated prior to Completion in accordance with Clause 5.4 above,
(i) this Agreement shall become void and of no further force and effect; provided, however, that the provisions of this Clause 5.5 and Clauses 1 (Definitions and Interpretation), 11 (Announcements and Confidentiality), 12 (Notices), 13 (Governing Law, Disputes and Jurisdiction), 14.1 (Entire Agreement), 14.6 (Variation), 14.7 (No Assignment), 14.8 (Waiver), 14.9 (Severability), 14.10 (Supersession) and 14.11 (Expenses) shall survive the termination of this Agreement indefinitely and that nothing herein shall relieve any Party from any liability for fraud or any breach of the provisions of this Agreement immediately prior to such termination; andtime for Completion.
(ii) if applicable, 4.7 On Completion the Observer Company and the relevant Invesco Funds shall no longer be entitled to attend arrange through their respective brokers and the meetings Company’s registrars for settlement of the Board (or any committee thereof) Purchase and the nominees Placing such that on Completion the Buyback Consideration is paid by the Company and the Placing Consideration is paid by the Placees and the Sale Shares and the Placing Shares are delivered by or on behalf of the Purchaser appointed Invesco Funds to the Company or the Placees (respectively) on the Board in accordance with Clause 6.2 shall resign with immediate effecta DVP basis (delivery versus payment) through CREST.
Appears in 1 contract
Completion. 5.1. Subject to 4.1 Completion shall take place in accordance with this clause 4 at the offices of ▇▇▇▇▇▇▇▇ Chance, London on the tenth Business Day following the satisfaction of all the conditions set out in Clauses 3.1, 3.2 and 3.3, Completion shall take place on the Completion Date.
5.2. The obligations of each of the Parties under Clause 5.3 below are interdependent of each other. The Completion shall not occur unless all of the obligations specified in Clause 5.3, have been simultaneously complied with and are fully effective.
5.3. On the Completion Date:
(i) Subject to deductions pursuant to Clause 4.4, the Purchaser shall remit the Purchase Consideration (in immediately available funds) to the Seller’s Bank Account.
(ii) The Seller shall (a) provide to its Depository Participant duly executed DP Instructions in the prescribed form for the transfer of the Sale Shares to the Demat Account of the Purchaser (details of which shall be provided to the Seller in writing as soon as practicable after the Execution Date); (b) procure its Depository Participant to duly acknowledge such DP Instructions; (c) deliver a copy of such acknowledgement to the Purchaser; and (d) use best endeavours to procure credit of the Sale Shares to the Demat Account of the Purchaser.
(iii) The Seller shall, to the extent it is able to do so through exercise of its voting rights, procure that a Board meeting is held at which the following business shall be transacted:
(a) the appointment of directors nominated by the Purchaser on the Board shall be approved; and
(b) an extra-ordinary general meeting of the shareholders of the Company to approve the matters set out in Clause 5.3(iii)(a) and the amendment of the Articles of Association shall be convened.
5.4. This Agreement may be terminated on or prior to the Completion Date as follows:
(i) By the mutual written consent of the Purchaser and the Seller.
(ii) By the Seller, upon written notice to the Purchaser, if the conditions set out in Clauses clause 3.1 and 3.3 have not been satisfied (or satisfied subject only to Completion where applicablesuch other day as the parties may agree) or waived (where applicable) on or before 270 (two hundred seventy) days from the Execution Date or such later date as may be mutually agreed between the Parties in writing (“Long Stop Date”); provided that the Seller shall not be entitled to terminate this Agreement pursuant to this Clause 5.4(ii) if Seller’s breach of this Agreement has prevented or materially delayed the consummation of the Transactions (which term for the purposes of this Clause 5.4(ii) shall not include the Financing);
(iii) By the Purchaser, upon written notice to the Seller, if the such conditions set out in Clauses 3.2 and 3.3 have not been are satisfied (or satisfied subject only to Completion where applicable) or waived (where applicable) on or before the Long Stop Date; provided that the Purchaser shall not be entitled to terminate this Agreement pursuant to this Clause 5.4(iii) if Purchaser’s breach of this Agreement has prevented or materially delayed the consummation of the Transactions.
(iv) By the Seller (if the Seller is not in material breach of the Seller Warranties, covenants or agreements under this Agreement so as to cause any of the conditions set forth in Clause 3.2 and/or 3.3(i) not to be satisfied), upon written notice to the Purchaser, if there has been a material inaccuracy of any statement or warranty, or any unremedied material breach of a covenant or other agreement, of the Purchaser contained in this Agreement, which violation, breach or inaccuracy would cause any of the conditions set forth in Clause 3.1 and/or 3.3 not to be satisfied as of the Completion Date, and such violation, breach or inaccuracy has not been waived by the Seller or cured by the Purchaser within 20 (twenty) Business Days after receipt by the Purchaser of written notice thereof from the Seller or is not reasonably capable of being cured prior to the Long Stop Date.
(v) By 4.2 At Completion the Purchaser (if Sellers shall give to the Purchaser is not Buyers each item specified in material breach schedule 1.
4.3 The Sellers shall procure that at Completion:
4.3.1 the Company's directors hold a meeting of the Purchaser Warranties, covenants or agreements under this Agreement so as to cause any board of directors of the conditions set forth Company at which the directors:
(a) vote in Clause 3.1 and/or 3.3 not favour of the registration of the Buyers or their respective nominee(s) as member(s) of the Company in respect of the Shares (subject to the production of properly stamped transfers);
(b) do all such acts and things, if any, as may be necessary to give effect to the transfer of the IFC Debt and the DEG Debt on behalf of the Company;
(c) if required by the Buyers (such requirement to be satisfiednotified by the Buyers to the Representative at least 21 days before Completion), upon written notice change the Company's registered office to a place nominated by the Buyers;
(d) change the Company's accounting reference date to December 31;
(e) if required by the Buyers (such requirement to be notified by the Buyers to the SellerRepresentative at least 21 days before Completion), if there has been a material inaccuracy of any statement or warranty, or any unremedied material breach of a covenant or other agreement, accept the resignation of the Seller contained in this AgreementCompany's existing directors, which violation, breach or inaccuracy would cause any auditors and secretary with effect from the end of the conditions set forth in Clauses 3.2 and/or 3.3(imeeting;
(f) not to be satisfied appoint persons nominated by the Buyers as directors, secretary and auditors of the Completion DateCompany with effect from the end of the meeting;
(g) with effect from the end of the meeting, and such violation, breach or inaccuracy has not been waived authorise the secretary to notify the specimen signatures of the new officers of the Company in connection with each existing mandate given by the Purchaser or cured by Company for the Seller within 20 (twenty) Business Days after receipt by the Seller of written notice thereof from the Purchaser or is not reasonably capable of being cured prior to the Long Stop Date.
(vi) By the Seller or the Purchaser, upon written notice to the other, if a court of competent jurisdiction or any other Governmental Authority shall have issued a final, non-appealable order preventing or otherwise prohibiting the consummation operation of the Transactions.
5.5. If this Agreement is terminated prior to Completion in accordance with Clause 5.4 above,
(i) this Agreement shall become void and of no further force and effect; provided, however, that the provisions of this Clause 5.5 and Clauses 1 (Definitions and Interpretation), 11 (Announcements and Confidentiality), 12 (Notices), 13 (Governing Law, Disputes and Jurisdiction), 14.1 (Entire Agreement), 14.6 (Variation), 14.7 (No Assignment), 14.8 (Waiver), 14.9 (Severability), 14.10 (Supersession) and 14.11 (Expenses) shall survive the termination of this Agreement indefinitely and that nothing herein shall relieve any Party from any liability for fraud or any breach of the provisions of this Agreement prior to such terminationCompany's Bank Accounts; and
(iih) if applicable, terminate with effect from the Observer shall no longer be entitled to attend date of Completion the meetings contracts of employment of all the Company's employees (except those of the Board (or any committee thereof) Company's expatriate staff agreed between the Sellers and the nominees Buyers prior to the execution of this Agreement), give effect to the Redundancy Programme and the making of the Purchaser appointed Redundancy Payment.
4.3.2 the Rehabilitation Amount is standing to the credit of the Rehabilitation Reserve Account; and
4.3.3 all Redundancy Payments will be made to the employees terminated (as referred to in clause 4.3.2(h)).
4.4 At Completion the Sellers shall be paid:
4.4.1 the first tranche of the Initial Purchase Price for the IFC Debt and the DEG Debt of US$2,000,000 by drawing on the Board US$2m L/C in accordance with Clause 6.2 shall resign clause 5.1.2 below;
4.4.2 the second tranche of the Initial Purchase Price for the IFC Debt and the DEG Debt of US$10,000,000 in accordance with immediate effect.clause 5.1.5 below; and
4.4.3 the third tranche of the Initial Purchase Price for the Shares of US$1 in accordance with clause 5.1.6
Appears in 1 contract
Sources: Agreement for the Sale and Purchase of Debt and Shares (Golden Star Resources LTD)
Completion. 5.1. Subject 8.1 Completion shall take place after this deed ceases to be subject to any of the conditions set out in Clauses 3.1, 3.2 Conditions and 3.3, Completion it shall take place on the Completion Date.
5.2. The obligations 8.2 At Completion, the Primary Buyer shall:
8.2.1 allot and issue to the Primary Seller the Consideration Shares credited as fully paid and enter the Primary Seller in the register of each members of the Parties under Clause 5.3 below are interdependent of each other. The Completion shall not occur unless all Buyer as the holder of the obligations specified in Clause 5.3, have been simultaneously complied with and are fully effective.Consideration Shares; and
5.3. On 8.2.2 pay the Completion Date:
(i) Subject to deductions pursuant to Clause 4.4, the Purchaser shall remit the Purchase Initial Cash Consideration (less the Retention Amount) by telegraphic transfer, in immediately same day available funds) to the Seller’s Bank Account.
(ii) The Seller shall (a) provide to its Depository Participant duly executed DP Instructions in the prescribed form for the transfer of the Sale Shares to the Demat Account of the Purchaser (details of which shall be provided to the Seller in writing as soon as practicable after the Execution Date); (b) procure its Depository Participant to duly acknowledge such DP Instructions; (c) deliver a copy of such acknowledgement to the Purchaser; and (d) use best endeavours to procure credit of the Sale Shares to the Demat Account of the Purchaser.
(iii) The Seller shall, to the extent it is able Sellers’ Account. Receipt of sum payment made in accordance with this clause shall constitute a valid discharge of the Buyer’s obligations to do so through exercise of its voting rights, procure that a Board meeting is held at which pay the following business shall be transacted:
(a) the appointment of directors nominated by the Purchaser on the Board shall be approvedInitial Cash Consideration under clause 4.1.2; and
(b) an extra-ordinary general meeting 8.2.3 pay the Retention Amount, in cash, by telegraphic transfer into the Retention Account;
8.2.4 procure the delivery of a duly executed share certificate to the Primary Seller in respect of the shareholders Consideration Shares;
8.2.5 deliver to the Primary Seller a certified copy of the Company to approve resolution adopted by the matters set out in Clause 5.3(iii)(a) board of directors of the Primary Buyer authorising the Transaction and the amendment execution and delivery by the officers specified in the resolution of this deed, and any other documents referred to in this deed as being required to be delivered by it and evidence of the Articles authority of Association shall be convened.the persons signing the Transaction Documents and the transactions contemplated therein on behalf of the Other Buyers;
5.4. This Agreement may be terminated on or prior 8.2.6 deliver to the Completion Date as followsPrimary Seller a legal opinion in respect of the Buyer’s capacity and authority to enter into the relevant Transaction Documents;
8.2.7 deliver, or procure delivery, to the Sellers of or make available to the Primary Seller:
8.2.7.1 the Developer Management Agreements duly executed by VRI Management Espana S.L. or VRI Canarias S.L. (i) By the mutual written consent of the Purchaser and the Seller.
(ii) By the Seller, upon written notice to the Purchaser, if the conditions set out in Clauses 3.1 and 3.3 have not been satisfied (or satisfied subject only to Completion where as applicable) or waived (where applicable) on or before 270 (two hundred seventy) days from the Execution Date or such later date as may be mutually agreed between the Parties in writing (“Long Stop Date”); provided that the Seller shall not be entitled to terminate this Agreement pursuant to this Clause 5.4(ii) if Seller’s breach of this Agreement has prevented or materially delayed the consummation of the Transactions (which term for the purposes of this Clause 5.4(ii) shall not include the Financing);
(iii) By 8.2.7.2 the Purchaser, upon written notice to the Seller, if the conditions set out in Clauses 3.2 Co-operation Agreement and 3.3 have not been satisfied (or satisfied subject only to Completion where applicable) or waived (where applicable) on or before the Long Stop Date; provided that the Purchaser shall not be entitled to terminate this Agreement pursuant to this Clause 5.4(iii) if Purchaser’s breach of this Agreement has prevented or materially delayed the consummation of the Transactions.
(iv) By the Seller (if the Seller is not in material breach of the Seller Warranties, covenants or agreements under this Agreement so as to cause any of the conditions set forth in Clause 3.2 and/or 3.3(i) not all ancillary documents to be satisfied), upon written notice to entered into thereunder duly executed by the Purchaser, if there has been a material inaccuracy of any statement or warranty, or any unremedied material breach of a covenant or other agreement, of Primary Buyer;
8.2.7.3 the Purchaser contained in this Agreement, which violation, breach or inaccuracy would cause any of VRI Europe Shareholders’ Deed duly executed by the conditions set forth in Clause 3.1 and/or 3.3 not Buyer and Interval Leisure Group Management Limited;
8.2.7.4 the Pre-emption Deed duly executed by ILG Lux Finance S.à ▇.▇.;
8.2.7.5 the Escrow Letter duly executed by the Primary Buyer;
8.2.7.6 the FMRH Shareholders’ Deed and all ancillary documents to be satisfied as of the Completion Date, and such violation, breach or inaccuracy has not been waived entered into thereunder duly executed by the Seller or cured by the Purchaser within 20 (twenty) Business Days after receipt by the Purchaser of written notice thereof from the Seller or is not reasonably capable of being cured prior to the Long Stop DateILG Lux Finance S.à ▇.
(v) By the Purchaser (if the Purchaser is not in material breach of the Purchaser Warranties, covenants or agreements under this Agreement so as to cause any of the conditions set forth in Clause 3.1 and/or 3.3 not to be satisfied), upon written notice to the Seller, if there has been a material inaccuracy of any statement or warranty, or any unremedied material breach of a covenant or other agreement, of the Seller contained in this Agreement, which violation, breach or inaccuracy would cause any of the conditions set forth in Clauses 3.2 and/or 3.3(i) not to be satisfied as of the Completion Date, and such violation, breach or inaccuracy has not been waived by the Purchaser or cured by the Seller within 20 (twenty) Business Days after receipt by the Seller of written notice thereof from the Purchaser or is not reasonably capable of being cured prior to the Long Stop Date▇.
(vi) By the Seller or the Purchaser, upon written notice to the other, if a court of competent jurisdiction or any other Governmental Authority shall have issued a final, non-appealable order preventing or otherwise prohibiting the consummation of the Transactions.
5.5. If this Agreement is terminated prior to Completion in accordance with Clause 5.4 above,
(i) this Agreement shall become void and of no further force and effect; provided, however, that the provisions of this Clause 5.5 and Clauses 1 (Definitions and Interpretation), 11 (Announcements and Confidentiality), 12 (Notices), 13 (Governing Law, Disputes and Jurisdiction), 14.1 (Entire Agreement), 14.6 (Variation), 14.7 (No Assignment), 14.8 (Waiver), 14.9 (Severability), 14.10 (Supersession) and 14.11 (Expenses) shall survive the termination of this Agreement indefinitely and that nothing herein shall relieve any Party from any liability for fraud or any breach of the provisions of this Agreement prior to such termination; and
(ii) if applicable, the Observer shall no longer be entitled to attend the meetings of the Board (or any committee thereof) and the nominees of the Purchaser appointed on the Board in accordance with Clause 6.2 shall resign with immediate effect.;
Appears in 1 contract
Sources: Business Transfer Deed (Interval Leisure Group, Inc.)
Completion. 5.1. Subject to the conditions set out in Clauses 3.1, 3.2 and 3.3, Completion shall take place on the Completion Date.
5.2. The obligations of each of the Parties under Clause 5.3 below are interdependent of each other. The Completion shall immediately following execution when all (but not occur part only unless all of the obligations specified in Clause 5.3, have been simultaneously complied with and are fully effective.
5.3. On the Completion Date:
(i) Subject to deductions pursuant to Clause 4.4, the Purchaser shall remit and the Purchase Consideration (in immediately available funds) to the Seller’s Bank Account.
(ii) The Seller shall (aso agree) provide to its Depository Participant duly executed DP Instructions in the prescribed form for the transfer of the Sale Shares to the Demat Account of the Purchaser (details of which shall be provided to the Seller in writing as soon as practicable after the Execution Date); (b) procure its Depository Participant to duly acknowledge such DP Instructions; (c) deliver a copy of such acknowledgement to the Purchaser; and (d) use best endeavours to procure credit of the Sale Shares to the Demat Account of the Purchaser.
(iii) The Seller shall, to the extent it is able to do so through exercise of its voting rights, procure that a Board meeting is held at which the following business shall be transacted:
5.1 completion of the PTT and Talidan Agreements;
5.2 the Seller shall deliver (in the manner agreed between the parties) to the Purchaser (to the extent not delivered prior thereto):
(a) transfers in relation to the Sale Shares duly executed and completed in favour of the Purchaser together with the certificates therefor and the duly executed powers of attorney or other authorities under which any of the transfers have been executed and certified copies of the Minutes recording the Resolution of the Board of Directors of the Seller authorizing the sale of the Sale Shares held by the Seller and the execution of transfers in respect of them;
(b) legal opinions in respect of the Companies in the agreed form;
(c) service agreements in the agreed form;
(d) copies of the completion documentation relating to Tiller's acquisition of PTT and Talidan, including evidence of the appointment of directors the Carnegie nominated by the Purchaser on the Board shall be approveddirector for each of those companies; and
(e) a duly executed copy of the Service Agreement.
5.3 The Purchaser shall:
(a) issue the Consideration Securities to the Seller (and to its permitted assignees) in accordance with clauses 4. 1 (a) and 4. 1 (b) an extra-ordinary general meeting and certificates in respect of those Consideration Securities duly executed in favour of the shareholders Seller (or as it shall direct) and certified copy of the Company to approve minutes of the matters set out in Clause 5.3(iii)(a) board of directors of the Purchaser authorizing the acquisition of the Sale Shares and the amendment issue of the Articles Consideration Securities and approving those further matters noted at clause 5.2(b) below provided in consideration of Association shall be convened.the Sale Shares;
5.4. This Agreement may be terminated on or prior (b) deliver to the Completion Date as followsSeller duly executed original copies of each of the following:
(i) By the mutual written consent of Warrants in the Purchaser and the Seller.agreed. form pursuant to clause 4.1(b)(ii);
(ii) By the Seller, upon written notice Option Agreement in the agreed form pursuant to the Purchaser, if the conditions set out in Clauses 3.1 and 3.3 have not been satisfied clause 4.1 (or satisfied subject only to Completion where applicable) or waived (where applicable) on or before 270 (two hundred seventy) days from the Execution Date or such later date as may be mutually agreed between the Parties in writing (“Long Stop Date”b)(iii); provided that the Seller shall not be entitled to terminate this Agreement pursuant to this Clause 5.4(ii) if Seller’s breach of this Agreement has prevented or materially delayed the consummation of the Transactions (which term for the purposes of this Clause 5.4(ii) shall not include the Financing);and
(iii) By the Purchaser, upon written notice to the Seller, if the conditions set out in Clauses 3.2 and 3.3 have not been satisfied (or satisfied subject only to Completion where applicable) or waived (where applicable) on or before the Long Stop Date; provided that the Purchaser shall not be entitled to terminate this Agreement pursuant to this Clause 5.4(iii) if Purchaser’s breach of this Agreement has prevented or materially delayed the consummation a duly executed copy of the Transactions.Service Agreement;
(ivc) By cause the transfers of Carnegie Shares by the Seller (if the Seller is not in material breach of the Seller Warranties, covenants or agreements under this Agreement so as to cause any of the conditions set forth in Clause 3.2 and/or 3.3(i) not to be satisfied), upon written notice to the Purchaser, if there has been a material inaccuracy of any statement or warranty, or any unremedied material breach of a covenant or other agreement, sellers under each of the Purchaser contained in this Agreement, which violation, breach PTT Agreement or inaccuracy would cause any of the conditions set forth in Clause 3.1 and/or 3.3 not to be satisfied Talidan Agreement (or as of the Completion Date, they shall direct) and such violation, breach or inaccuracy has not as have otherwise been waived by the Seller or cured agreed by the Purchaser within 20 (twenty) Business Days after receipt by the Purchaser of written notice thereof from the Seller or is not reasonably capable of being cured prior to the Long Stop Date.
(v) By the Purchaser (if the Purchaser is not in material breach of the Purchaser Warranties, covenants or agreements under this Agreement so as to cause any of the conditions set forth in Clause 3.1 and/or 3.3 not to be satisfied), upon written notice to the Seller, if there has been a material inaccuracy of any statement or warranty, or any unremedied material breach of a covenant or other agreement, of the Seller contained in this Agreement, which violation, breach or inaccuracy would cause any of the conditions set forth in Clauses 3.2 and/or 3.3(i) not resolved to be satisfied as of the Completion Dateregistered (subject only, and such violationwhere applicable, breach or inaccuracy has not been waived by the Purchaser or cured by the Seller within 20 (twenty) Business Days after receipt by the Seller of written notice thereof from the Purchaser or is not reasonably capable of to their being cured prior to the Long Stop Date.
(vi) By the Seller or the Purchaser, upon written notice to the other, if a court of competent jurisdiction or any other Governmental Authority shall have issued a final, non-appealable order preventing or otherwise prohibiting the consummation of the Transactions.
5.5. If this Agreement is terminated prior to Completion in accordance with Clause 5.4 above,
(i) this Agreement shall become void and of no further force and effect; provided, however, that the provisions of this Clause 5.5 and Clauses 1 (Definitions and Interpretationduly stamped), 11 (Announcements and Confidentiality), 12 (Notices), 13 (Governing Law, Disputes and Jurisdiction), 14.1 (Entire Agreement), 14.6 (Variation), 14.7 (No Assignment), 14.8 (Waiver), 14.9 (Severability), 14.10 (Supersession) and 14.11 (Expenses) shall survive the termination of this Agreement indefinitely and that nothing herein shall relieve any Party from any liability for fraud or any breach of the provisions of this Agreement prior to such termination; and
(iid) if applicablepay to the Seller (and its assignees) an amount equal to one half of any required stamp duty, stamp duty reserve tax or other taxes payable by the Observer shall no longer be entitled to attend the meetings Seller (and its assignees) as a result of its acquisition and disposal of the Board (or any committee thereof) PTT Shares and/or the Talidan Shares and the nominees as a result of the Purchaser appointed on acquisition of the Board in accordance with Clause 6.2 shall resign with immediate effectSale Shares by the Purchaser.
Appears in 1 contract
Sources: Agreement for Sale/Purchase of Shares (Carnegie International Corp)
Completion. 5.1. Subject to the conditions set out 6.1 Completion in Clauses 3.1, 3.2 and 3.3, Completion respect of both Licences shall take place on at the Completion Date.
5.2. The obligations of each offices of the Parties under Clause 5.3 below are interdependent Farmor or SWR as soon as feasible after the execution of each other. The Completion shall not occur unless this Agreement, provided that all of the obligations specified in Clause 5.3, Conditions Precedent have been simultaneously complied satisfied and further provided, separately in respect of each Farminee, that Completion with and are fully effectivethat Farminee shall not take place if that Farminee is in default of any payments due under this Agreement; or on such other date as the Parties may agree.
5.3. 6.2 On the Completion Date:
6.2.1. The Farmor shall:
a) deliver to the Farminee (ito the extent not already delivered prior to Completion) Subject the Assignment Documents duly executed by all the parties thereto other than that Farminee (and, in the case of the Deed of Licence Assignment, the Secretary);
b) deliver to deductions the Farminees copies of the Secretaries’ Consents;
c) deliver to the Farminees copies of the consents or approvals, if any, referred to in Clause 3.3 and obtained by or on behalf of the Farmor;
d) deliver to each Farminee a copy, certified as a true copy and in full force and effect by a director or the secretary of the Farmor, of a resolution of the Board of Directors of that Farmor authorising its entry into the transactions contemplated by this Agreement and authorising a person or persons to sign the relevant Assignment Documents on its behalf; and
e) deliver to each Farminee a certified copy of any Power of Attorney pursuant to Clause 4.4, which any of this Agreement or the Purchaser shall remit the Purchase Consideration (in immediately available fundsAssignment Documents were executed.
6.2.2. Each Farminee shall:
a) deliver to the Seller’s Bank AccountFarmor copies of the consents or approvals, if any, referred to in Clause 3.3 and obtained by or on behalf of Farminee;
b) deliver to the Farmor a copy, certified as a true copy in full force and effect by a director or the secretary of Farminee, of a resolution of the Board of Directors of Farminee authorising its entry into the transactions contemplated by this Agreement and authorising a person or persons to sign the relevant Assignment Documents on its behalf;
c) subject to Clause 6.2.1, execute the relevant Assignment Documents; and
d) deliver to the Farmor a certified copy of any Power of Attorney pursuant to which any of this Agreement, or the Assignment Documents were executed.
(ii) The Seller 6.2.3. Each Party shall, and shall (a) provide procure that its Affiliates shall, execute all such other documents and do all such other acts and things as may reasonably be required in order to its Depository Participant duly executed DP Instructions in the prescribed form for effect the transfer of the Sale Shares Farmed Interests to the Demat Account Farminees and otherwise carry out the true intent of the Purchaser (details of which this Agreement.
6.2.4. The Farmor shall be provided make available to the Seller in writing as soon as practicable after the Execution Date); (b) procure its Depository Participant to duly acknowledge such DP Instructions; (c) deliver a copy of such acknowledgement to the Purchaser; and (d) use best endeavours to procure credit of the Sale Shares to the Demat Account of the Purchaser.
(iii) The Seller shall, to the extent it is able to do so through exercise of its voting rights, procure that a Board meeting is held at which the following business shall be transacted:
(a) the appointment of directors nominated by the Purchaser Farminees on the Board shall be approved; and
(b) an extra-ordinary general meeting of the shareholders of the Company to approve the matters set out in Clause 5.3(iii)(a) and the amendment of the Articles of Association shall be convened.
5.4. This Agreement may be terminated on or prior to the Completion Date as follows:
(i) By the mutual written consent a certified true copy of the Purchaser and the SellerLicence.
(ii) By 6.2.5. Subject to Clause 6.2.4, the SellerFarmor shall make available for collection by the Farminees at such place as the Parties may agree on or within 21 days after the Completion Date duly signed originals or certified true copies of the Data. In the case of the Licence, upon written notice the Farmor shall use its reasonable endeavours to obtain a certified copy thereof by the Completion Date.
6.2.6. Pending delivery of the Data, the Farminees shall have access to the Purchaser, if the conditions set out in Clauses 3.1 and 3.3 have not been satisfied (or satisfied subject only to Completion where applicable) or waived (where applicable) on or before 270 (two hundred seventy) days from the Execution Date or Data at such later date times as may be mutually agreed between the Parties in writing (“Long Stop Date”); provided that the Seller reasonably requested and shall not be entitled allowed to terminate this Agreement pursuant to this Clause 5.4(ii) if Seller’s breach of this Agreement has prevented or materially delayed the consummation take photocopies of the Transactions (which term for the purposes of this Clause 5.4(ii) shall not include the Financing);
(iii) By the Purchaser, upon written notice to the Seller, if the conditions set out in Clauses 3.2 and 3.3 have not been satisfied (or satisfied subject only to Completion where applicable) or waived (where applicable) on or before the Long Stop Date; provided that the Purchaser shall not be entitled to terminate this Agreement pursuant to this Clause 5.4(iii) if Purchaser’s breach of this Agreement has prevented or materially delayed the consummation of the Transactionssame.
(iv) By the Seller (if the Seller is not in material breach of the Seller Warranties, covenants or agreements under this Agreement so as to cause any of the conditions set forth in Clause 3.2 and/or 3.3(i) not to be satisfied), upon written notice to the Purchaser, if there has been a material inaccuracy of any statement or warranty, or any unremedied material breach of a covenant or other agreement, of the Purchaser contained in this Agreement, which violation, breach or inaccuracy would cause any of the conditions set forth in Clause 3.1 and/or 3.3 not to be satisfied as of the Completion Date, and such violation, breach or inaccuracy has not been waived by the Seller or cured by the Purchaser within 20 (twenty) Business Days after receipt by the Purchaser of written notice thereof from the Seller or is not reasonably capable of being cured prior to the Long Stop Date.
(v) By the Purchaser (if the Purchaser is not in material breach of the Purchaser Warranties, covenants or agreements under this Agreement so as to cause any of the conditions set forth in Clause 3.1 and/or 3.3 not to be satisfied), upon written notice to the Seller, if there has been a material inaccuracy of any statement or warranty, or any unremedied material breach of a covenant or other agreement, of the Seller contained in this Agreement, which violation, breach or inaccuracy would cause any of the conditions set forth in Clauses 3.2 and/or 3.3(i) not to be satisfied as of the Completion Date, and such violation, breach or inaccuracy has not been waived by the Purchaser or cured by the Seller within 20 (twenty) Business Days after receipt by the Seller of written notice thereof from the Purchaser or is not reasonably capable of being cured prior to the Long Stop Date.
(vi) By the Seller or the Purchaser, upon written notice to the other, if a court of competent jurisdiction or any other Governmental Authority shall have issued a final, non-appealable order preventing or otherwise prohibiting the consummation of the Transactions.
5.5. If this Agreement is terminated prior to Completion in accordance with Clause 5.4 above,
(i) this Agreement shall become void and of no further force and effect; provided, however, that the provisions of this Clause 5.5 and Clauses 1 (Definitions and Interpretation), 11 (Announcements and Confidentiality), 12 (Notices), 13 (Governing Law, Disputes and Jurisdiction), 14.1 (Entire Agreement), 14.6 (Variation), 14.7 (No Assignment), 14.8 (Waiver), 14.9 (Severability), 14.10 (Supersession) and 14.11 (Expenses) shall survive the termination of this Agreement indefinitely and that nothing herein shall relieve any Party from any liability for fraud or any breach of the provisions of this Agreement prior to such termination; and
(ii) if applicable, the Observer shall no longer be entitled to attend the meetings of the Board (or any committee thereof) and the nominees of the Purchaser appointed on the Board in accordance with Clause 6.2 shall resign with immediate effect.
Appears in 1 contract
Completion. 5.1. Subject to the conditions set out in Clauses 3.1, 3.2 and 3.3, 4.1 Completion shall take place at the offices of the Purchaser’s Lawyers at 11:00 a.m. (Amsterdam time) on [date] or at such other time and on such other date as the Seller and the Purchaser may agree.
4.2 At Completion each party shall do, or procure to be done, those things respectively listed in relation to it or its Group in Schedule 7 (Completion).
4.3 At 10:00 a.m. (Amsterdam time) on the Completion Date.
5.2. The obligations day of each of the Parties under Clause 5.3 below are interdependent of each other. The Completion shall not occur unless all of the obligations specified in Clause 5.3Completion, have been simultaneously complied with and are fully effective.
5.3. On the Completion Date:
(A) as applicable, (i) Subject to deductions pursuant to Clause 4.4, the Purchaser shall remit the have paid Cash Purchase Consideration (in immediately available funds) to the Seller’s Bank Account.
Price or (ii) The the Seller shall have paid the Seller Excess Cash I, in either case by wire transfer into the Notary’s account in accordance with Clause 27 and (aB) provide to its Depository Participant duly the Purchaser shall have executed DP Instructions and delivered the Purchaser Note in the prescribed form for the transfer respect of the Sale Shares to the Demat Account payment of the Purchaser Net Amount. Upon execution of the Deed(s) of Transfer in accordance with Schedule 6 (details Deed(s) of which Transfer), the Notary shall be provided hold the Cash Purchase Price, if any, and that Purchaser Note for the benefit of the Seller and the Seller Excess Cash I, if any, for the benefit of the Purchaser. The Notary shall pay and transfer the Cash Purchase Price, if any, and transfer the Purchaser Note, to the Seller in writing as soon as practicable after or, if applicable, the Execution Date); (b) procure its Depository Participant to duly acknowledge such DP Instructions; (c) deliver a copy of such acknowledgement Seller Excess Cash I to the Purchaser; and (d) use best endeavours to procure credit , in accordance with this Agreement immediately upon execution of the Sale Shares to the Demat Account Deed(s) of Transfer.
4.4 None of the Purchaser.
(iii) The Seller shall, to the extent it is able to do so through exercise of its voting rights, procure that a Board meeting is held at which the following business parties shall be transacted:
(a) obliged to complete the appointment of directors nominated by the Purchaser on the Board shall be approved; and
(b) an extra-ordinary general meeting sale and purchase of the shareholders of the Company to approve the matters Business unless all material things set out in this Clause 5.3(iii)(a4 and in Schedule 7 (Completion) and the amendment of the Articles of Association shall be convened.
5.4. This Agreement may be terminated have been done on or prior to Completion. This subclause shall not, however, prejudice any rights or remedies available to any party in respect of any default on the Completion Date as follows:part of the other party.
4.5 The Parties are aware of the fact that the Notary works with NautaDutilh, the firm that advises the Purchaser in the Transaction. With reference to the Code of Conduct (Verordening beroeps- en gedragsregels) established by the Royal Notarial Professional Organisation (Koninklijke Notariële Beroepsorganisatie), the Parties hereby explicitly agree (i) By that the mutual written consent of the Purchaser Notary shall execute any notarial deeds related to this Agreement and the Seller.
(ii) By the Seller, upon written notice to the Purchaser, if the conditions set out in Clauses 3.1 and 3.3 have not been satisfied (or satisfied subject only to Completion where applicable) or waived (where applicable) on or before 270 (two hundred seventy) days from the Execution Date or such later date as may be mutually agreed between the Parties in writing (“Long Stop Date”); provided that the Seller shall not be entitled to terminate this Agreement pursuant to this Clause 5.4(ii) if Seller’s breach of this Agreement has prevented or materially delayed the consummation of the Transactions (which term for the purposes of this Clause 5.4(ii) shall not include the Financing);
(iii) By the Purchaser, upon written notice to the Seller, if the conditions set out in Clauses 3.2 and 3.3 have not been satisfied (or satisfied subject only to Completion where applicable) or waived (where applicable) on or before the Long Stop Date; provided that the Purchaser shall not be entitled is assisted and represented by NautaDutilh in relation to terminate this Agreement pursuant to this Clause 5.4(iii) if Purchaser’s breach of this Agreement has prevented or materially delayed the consummation of the Transactions.
(iv) By the Seller (if the Seller is not in material breach of the Seller Warranties, covenants or agreements under this Agreement so as to cause any of the conditions set forth in Clause 3.2 and/or 3.3(i) not to be satisfied), upon written notice to the Purchaser, if there has been a material inaccuracy of any statement or warranty, or any unremedied material breach of a covenant or other agreement, of the Purchaser contained in this Agreement, which violation, breach or inaccuracy would cause the Merger Agreement and any of the conditions set forth in Clause 3.1 and/or 3.3 not to agreements that may be satisfied as of the Completion Date, and such violation, breach or inaccuracy has not been waived by the Seller or cured by the Purchaser within 20 (twenty) Business Days after receipt by the Purchaser of written notice thereof from the Seller or is not reasonably capable of being cured prior to the Long Stop Date.
(v) By the Purchaser (if the Purchaser is not in material breach of the Purchaser Warranties, covenants or agreements under this Agreement so as to cause any of the conditions set forth in Clause 3.1 and/or 3.3 not to be satisfied), upon written notice to the Seller, if there has been a material inaccuracy of any statement or warrantyconcluded, or any unremedied material breach of a covenant or other agreementdisputes that may arise, of the Seller contained in this Agreement, which violation, breach or inaccuracy would cause any of the conditions set forth in Clauses 3.2 and/or 3.3(i) not to be satisfied as of the Completion Date, and such violation, breach or inaccuracy has not been waived by the Purchaser or cured by the Seller within 20 (twenty) Business Days after receipt by the Seller of written notice thereof from the Purchaser or is not reasonably capable of being cured prior to the Long Stop Dateconnection therewith.
(vi) By the Seller or the Purchaser, upon written notice to the other, if a court of competent jurisdiction or any other Governmental Authority shall have issued a final, non-appealable order preventing or otherwise prohibiting the consummation of the Transactions.
5.5. If this Agreement is terminated prior to Completion in accordance with Clause 5.4 above,
(i) this Agreement shall become void and of no further force and effect; provided, however, that the provisions of this Clause 5.5 and Clauses 1 (Definitions and Interpretation), 11 (Announcements and Confidentiality), 12 (Notices), 13 (Governing Law, Disputes and Jurisdiction), 14.1 (Entire Agreement), 14.6 (Variation), 14.7 (No Assignment), 14.8 (Waiver), 14.9 (Severability), 14.10 (Supersession) and 14.11 (Expenses) shall survive the termination of this Agreement indefinitely and that nothing herein shall relieve any Party from any liability for fraud or any breach of the provisions of this Agreement prior to such termination; and
(ii) if applicable, the Observer shall no longer be entitled to attend the meetings of the Board (or any committee thereof) and the nominees of the Purchaser appointed on the Board in accordance with Clause 6.2 shall resign with immediate effect.
Appears in 1 contract
Sources: Merger Agreement (Johnson & Johnson)
Completion. 5.1. Subject to 4.1 The sale and purchase of the conditions Business and the Seller’s Assets shall be completed at the offices of the Seller’s Solicitors on the Completion Date (or such later date as agreed between the Seller and the Buyer) when each of the events set out in Clauses 3.1, 3.2 and 3.3, Completion clause 4.2 shall take place on the Completion Dateoccur.
5.2. The obligations of each of the Parties under Clause 5.3 below are interdependent of each other. The 4.2 On Completion shall not occur unless all of the obligations specified in Clause 5.3, have been simultaneously complied with and are fully effective.
5.3. On the Completion Date:
(i) Subject relation to deductions pursuant to Clause 4.4, the Purchaser shall remit the Purchase Consideration (in immediately available funds) to the Seller’s Bank Account.
(ii) The Seller shall (a) provide to its Depository Participant duly executed DP Instructions in the prescribed form for the transfer of the Sale Shares to the Demat Account of the Purchaser (details of which shall be provided to the Seller in writing as soon as practicable after the Execution Date); (b) procure its Depository Participant to duly acknowledge such DP Instructions; (c) deliver a copy of such acknowledgement to the Purchaser; and (d) use best endeavours to procure credit of the Sale Shares to the Demat Account of the Purchaser.
(iii) The Seller shall, to the extent it is able to do so through exercise of its voting rights, procure that a Board meeting is held at which the following business shall be transactedSeller’s Premises:
(a) the appointment Buyer and the Seller shall complete the transfer of directors nominated by the Purchaser on Seller’s Premises in accordance with the Board provisions of Schedule 6;
(b) the Buyer and the Seller shall be approveddeliver duly executed transfers of the Seller’s Premises in the agreed form to the Buyer; and
(c) the Buyer shall without further delay complete all necessary registrations with regard to the Seller’s Premises and pay the required stamp duties.
4.3 On Completion the Seller shall, deliver to the Buyer:
(a) where applicable but subject to clause 18, agreements, in the agreed form, duly executed by the Seller, for the assignment or novation of the of the Seller’s Contracts to the Buyer and all requisite third party consents for such assignments and/or novations;
(b) an extra-ordinary general meeting the Seller’s Trade ▇▇▇▇ Assignment duly completed and executed by the Seller;
(c) duly completed and executed transfers of the shareholders Subsidiary Shares in favour of the Company to approve Buyer or as it directs;
(d) the matters resignations of ▇▇▇▇▇▇ ▇▇▇▇ and ▇▇▇ ▇▇▇▇▇▇▇▇▇ as directors of each and the secretary (where such persons are directors and/or the secretary) of each of the Subsidiaries in the agreed form from their respective offices and employment in each containing a written acknowledgement from each of them that he has no claim against any of the Subsidiaries on any grounds whatsoever;
(e) the Management Accounts;
(f) evidence that the seven floating charges registered over the Seller’s Assets and the mortgage over the Seller’s Premises as disclosed in the Disclosure Letter against the Warranty set out in Clause 5.3(iii)(a) and the amendment paragraph 3.1 of the Articles of Association shall be convenedSchedule 2 are not used as collateral.
5.4. This Agreement may be terminated on or prior 4.4 On Completion the Seller shall, make available to the Completion Date as followsBuyer at the Seller’s Premises or the Subsidiaries’ Premises:
(ia) By the mutual written consent such of the Purchaser and the Seller.
(ii) By the Seller, upon written notice to the Purchaser, if the conditions set out in Clauses 3.1 and 3.3 have not been satisfied (or satisfied subject only to Completion where applicable) or waived (where applicable) on or before 270 (two hundred seventy) days from the Execution Date or such later date as may be mutually agreed between the Parties in writing (“Long Stop Date”); provided that the Seller shall not be entitled to terminate this Agreement pursuant to this Clause 5.4(ii) if Seller’s breach Assets as are capable of this Agreement has prevented or materially delayed the consummation of the Transactions (which term for the purposes of this Clause 5.4(ii) shall not include the Financing)being transferred by delivery;
(iiib) By the Purchaser, upon written notice extract from the land register (Sw. CFD-utdrag) relating to the Seller, if the conditions set out in Clauses 3.2 and 3.3 have not been satisfied ’s Premises;
(c) all records of social security contributions (or satisfied subject only equivalent) and income tax or other taxes deducted at source relating to Completion where applicableall the Seller’s Employees on the Transfer Date duly completed up to that date and all records required to be kept according to relevant provisions of law;
(d) or waived (where applicable) on or before the Long Stop Date; provided that the Purchaser shall not be entitled to terminate this Agreement pursuant to this Clause 5.4(iii) if Purchaser’s breach of this Agreement has prevented or materially delayed the consummation a copy of the Transactions.certificate of incorporation (and, where relevant, any certificate of incorporation on change of name) of each of the Subsidiaries;
(ive) By the Seller (if the Seller is not in material breach minute books of each of the Seller Warranties, covenants or agreements under this Agreement so as Subsidiaries duly made up to cause any Completion;
(f) the register of members and other statutory registers of each of the conditions set forth in Clause 3.2 and/or 3.3(i) not Subsidiaries duly made up to be satisfied), upon written notice to the Purchaser, if there has been a material inaccuracy of any statement or warranty, or any unremedied material breach of a covenant or other agreement, of the Purchaser contained in this Agreement, which violation, breach or inaccuracy would cause any of the conditions set forth in Clause 3.1 and/or 3.3 not to be satisfied as of the Completion Date, and such violation, breach or inaccuracy has not been waived by the Seller or cured by the Purchaser within 20 (twenty) Business Days after receipt by the Purchaser of written notice thereof from the Seller or is not reasonably capable of being cured prior to the Long Stop Date.
(v) By the Purchaser (if the Purchaser is not in material breach of the Purchaser Warranties, covenants or agreements under this Agreement so as to cause any of the conditions set forth in Clause 3.1 and/or 3.3 not to be satisfied), upon written notice to the Seller, if there has been a material inaccuracy of any statement or warranty, or any unremedied material breach of a covenant or other agreement, of the Seller contained in this Agreement, which violation, breach or inaccuracy would cause any of the conditions set forth in Clauses 3.2 and/or 3.3(i) not to be satisfied as of the Completion Date, and such violation, breach or inaccuracy has not been waived by the Purchaser or cured by the Seller within 20 (twenty) Business Days after receipt by the Seller of written notice thereof from the Purchaser or is not reasonably capable of being cured prior to the Long Stop Date.
(vi) By the Seller or the Purchaser, upon written notice to the other, if a court of competent jurisdiction or any other Governmental Authority shall have issued a final, non-appealable order preventing or otherwise prohibiting the consummation of the Transactions.
5.5. If this Agreement is terminated prior to Completion in accordance with Clause 5.4 above,
(i) this Agreement shall become void and of no further force and effect; provided, however, that the provisions of this Clause 5.5 and Clauses 1 (Definitions and Interpretation), 11 (Announcements and Confidentiality), 12 (Notices), 13 (Governing Law, Disputes and Jurisdiction), 14.1 (Entire Agreement), 14.6 (Variation), 14.7 (No Assignment), 14.8 (Waiver), 14.9 (Severability), 14.10 (Supersession) and 14.11 (Expenses) shall survive the termination of this Agreement indefinitely and that nothing herein shall relieve any Party from any liability for fraud or any breach of the provisions of this Agreement prior to such terminationCompletion; and
(iig) if applicableso far as the Seller is reasonably able, the Observer shall no longer be entitled to attend appropriate corporate resolutions evidencing the meetings change of company name of the Board Seller and any other company in the Seller’s Group (or any committee thereofexcept for the Subsidiaries) and so that the nominees company names of such companies do not include the Purchaser appointed on the Board in accordance with Clause 6.2 shall resign with immediate effectword “Bycosin”.
Appears in 1 contract
Completion. 5.1. 6.1 Subject to the conditions set out in Clauses 3.1, 3.2 and 3.3provisions of Clause 4, Completion shall take place on the Completion Date.Date at the offices of the Purchaser's Solicitors when all (but not some only) of the following events shall occur:
5.2. The obligations 6.1.1 the Vendors shall:
6.1.1.1 place the Purchaser in possession of all of the Machinery and Equipment, all information embodying the Intellectual Property, the Sales Documentation and the Customer List (in whatever form and upon whatever media they may be recorded);
6.1.1.2 place the Purchaser in possession of all the Books and Records (other than minute books relating to directors' and shareholders' meetings and statutory books);
6.1.1.3 deliver to the Purchaser a written confirmation that the Warrantors are not aware of any matter or thing which is a breach of or inconsistent with any of the Warranties;
6.1.1.4 deliver to the Purchaser a certified copy of a resolution of the board of directors of each of the Parties under Clause 5.3 below are interdependent Vendors and a certified copy of each other. The Completion shall not occur unless all a resolution of the obligations specified shareholders of CO Air (HK), in Clause 5.3, have been simultaneously complied with each case approving the sale of the Assets on the terms of this Agreement and are fully effective.authorising Mr. Davi▇ ▇▇▇▇▇ ▇▇ execute it for and on behalf of the relevant Vendor;
5.3. On 6.1.1.5 deliver to the Completion Date:Purchaser proxies (in such form as the Purchaser may require) executed by each of the directors appointed to the board of directors of Sind▇ ▇▇ CO Air (HK) in favour of such person(s) as may be nominated by the Purchaser;
(i) Subject to deductions pursuant 6.1.1.6 subject to Clause 4.417.4, deliver to the Purchaser shall remit the Purchase Consideration (in immediately available funds) to the Seller’s Bank Account.
(ii) The Seller shall (a) provide to its Depository Participant duly executed DP Instructions assignments or transfer documents (as the case may be) in the prescribed form for approved terms in respect of the assignment or transfer of the Sale Shares licences and permits granted to or enjoyed by the Vendors in respect of the Business to the Demat Account Purchaser;
6.1.1.7 deliver to the Purchaser a declaration of trust by CO (Air) HK in favour of the Purchaser (details in respect of which shall be provided to the Seller Sind▇ ▇▇▇erest in writing as soon as practicable after the Execution Date); (b) procure its Depository Participant to duly acknowledge such DP Instructions; (c) deliver a copy of such acknowledgement form and substance reasonably satisfactory to the Purchaser; and (d) use best endeavours to procure credit of the Sale Shares and
6.1.1.8 deliver to the Demat Account Purchaser a release and waiver by each of the Purchaser.
Logistics Management and CO Air (iiiChina) The Seller shall, to the extent it is able to do so through exercise of its voting rights, procure that a Board meeting is held at which the following business shall be transacted:
(a) the appointment of directors nominated by the Purchaser on the Board shall be approved; and
(b) an extra-ordinary general meeting of the shareholders of the Company to approve the matters set out in Clause 5.3(iii)(a) and the amendment of the Articles of Association shall be convened.
5.4. This Agreement may be terminated on or prior to the Completion Date as follows:
(i) By the mutual written consent favour of the Purchaser in respect of all past, present and future commissions, fees, expenses and other payments whatsoever arising from the Seller.
(ii) By carrying on of the SellerBusiness, upon written notice in 22 26 REDACTED form and substance reasonably satisfactory to the Purchaser, if the conditions set out in Clauses 3.1 and 3.3 have not been satisfied (or satisfied subject only to Completion where applicable) or waived (where applicable) on or before 270 (two hundred seventy) days from the Execution Date or such later date as may be mutually agreed between the Parties in writing (“Long Stop Date”); provided that the Seller shall not be entitled to terminate this Agreement pursuant to this Clause 5.4(ii) if Seller’s breach of this Agreement has prevented or materially delayed the consummation of the Transactions (which term for the purposes of this Clause 5.4(ii) shall not include the Financing);
(iii) By the Purchaser, upon written notice to the Seller, if the conditions set out in Clauses 3.2 and 3.3 have not been satisfied (or satisfied subject only to Completion where applicable) or waived (where applicable) on or before the Long Stop Date; provided that the Purchaser shall not be entitled to terminate this Agreement pursuant to this Clause 5.4(iii) if Purchaser’s breach of this Agreement has prevented or materially delayed the consummation of the Transactions.
(iv) By the Seller (if the Seller is not in material breach of the Seller Warranties, covenants or agreements under this Agreement so as to cause any of the conditions set forth in Clause 3.2 and/or 3.3(i) not to be satisfied), upon written notice to the Purchaser, if there has been a material inaccuracy of any statement or warranty, or any unremedied material breach of a covenant or other agreement, of the Purchaser contained in this Agreement, which violation, breach or inaccuracy would cause any of the conditions set forth in Clause 3.1 and/or 3.3 not to be satisfied as of the Completion Date, and such violation, breach or inaccuracy has not been waived by the Seller or cured by the Purchaser within 20 (twenty) Business Days after receipt by the Purchaser of written notice thereof from the Seller or is not reasonably capable of being cured prior to the Long Stop Date.
(v) By the Purchaser (if the Purchaser is not in material breach of the Purchaser Warranties, covenants or agreements under this Agreement so as to cause any of the conditions set forth in Clause 3.1 and/or 3.3 not to be satisfied), upon written notice to the Seller, if there has been a material inaccuracy of any statement or warranty, or any unremedied material breach of a covenant or other agreement, of the Seller contained in this Agreement, which violation, breach or inaccuracy would cause any of the conditions set forth in Clauses 3.2 and/or 3.3(i) not to be satisfied as of the Completion Date, and such violation, breach or inaccuracy has not been waived by the Purchaser or cured by the Seller within 20 (twenty) Business Days after receipt by the Seller of written notice thereof from the Purchaser or is not reasonably capable of being cured prior to the Long Stop Date.
(vi) By the Seller or the Purchaser, upon written notice to the other, if a court of competent jurisdiction or any other Governmental Authority shall have issued a final, non-appealable order preventing or otherwise prohibiting the consummation of the Transactions.
5.5. If this Agreement is terminated prior to Completion in accordance with Clause 5.4 above,
(i) this Agreement shall become void and of no further force and effect; provided, however, that the provisions of this Clause 5.5 and Clauses 1 (Definitions and Interpretation), 11 (Announcements and Confidentiality), 12 (Notices), 13 (Governing Law, Disputes and Jurisdiction), 14.1 (Entire Agreement), 14.6 (Variation), 14.7 (No Assignment), 14.8 (Waiver), 14.9 (Severability), 14.10 (Supersession) and 14.11 (Expenses) shall survive the termination of this Agreement indefinitely and that nothing herein shall relieve any Party from any liability for fraud or any breach of the provisions of this Agreement prior to such termination; and
(ii) if applicable, the Observer shall no longer be entitled to attend the meetings of the Board (or any committee thereof) and the nominees of the Purchaser appointed on the Board in accordance with Clause 6.2 shall resign with immediate effect.
Appears in 1 contract
Completion. 5.1. Subject to 5.1 Upon compliance with or fulfillment of all the conditions set out in Clauses 3.1, 3.2 and 3.3Clause 3.2, Completion shall take place at the offices of the Purchaser or such other place as the parties shall determine at 4:00 p.m. on the Completion DateDate when all the acts and requirements set out in this Clause 5 shall be complied with (except that any of such acts and requirements may be waived by the party not in default of its obligations hereunder, PROVIDED THAT such waiver shall not prejudice any of the rights which it or any other party may have under this Agreement).
5.2. The obligations 5.2 At Completion, the Vendor shall deliver or procure the delivery to the Purchaser of each all the following:
(1) copy, certified by a director of the Parties under Clause 5.3 below Company as true and complete and that the resolutions therein are interdependent of each other. The Completion shall subsisting and have not occur unless all of the obligations specified in Clause 5.3, have been simultaneously complied with and are fully effective.
5.3. On amended or revoked as at the Completion Date, of the resolutions in such form to the satisfaction of the Purchaser passed by the directors of the Company and its subsidiaries (as appropriate) approving the following matters:
(i) Subject to deductions pursuant to Clause 4.4, the Purchaser shall remit the Purchase Consideration (in immediately available funds) to the Seller’s Bank Account.
(ii) The Seller shall (a) provide to its Depository Participant duly executed DP Instructions in the prescribed form for the transfer of the Sale Shares to the Demat Account of the Purchaser (details of which shall be provided to the Seller in writing as soon as practicable after the Execution Dateor its nominee(s); (b) procure its Depository Participant to duly acknowledge such DP Instructions; (c) deliver a copy of such acknowledgement to the Purchaser; and (d) use best endeavours to procure credit of the Sale Shares to the Demat Account of the Purchaser.
(iii) The Seller shall, to the extent it is able to do so through exercise of its voting rights, procure that a Board meeting is held at which the following business shall be transacted:
(a) the appointment of directors nominated by the Purchaser on the Board shall be approved; and
(b) an extra-ordinary general meeting of the shareholders of the Company to approve the matters set out in Clause 5.3(iii)(a) and the amendment registration of the Articles of Association shall be convened.
5.4. This Agreement may be terminated on or prior such transfer subject to the Completion Date as follows:
(i) By the mutual written consent relevant instrument of the Purchaser and the Seller.transfer being duly presented for registration;
(ii) By the Seller, upon written notice appointments of up to three (3) nominees of the Purchaser, if Purchaser as directors of the conditions set out in Clauses 3.1 and 3.3 have not been satisfied (or satisfied subject only to Completion where applicable) or waived (where applicable) on or before 270 (two hundred seventy) days Company with effect from the Execution Date or such later date as may be mutually agreed between the Parties in writing (“Long Stop Completion Date”); provided that the Seller shall not be entitled to terminate this Agreement pursuant to this Clause 5.4(ii) if Seller’s breach of this Agreement has prevented or materially delayed the consummation of the Transactions (which term for the purposes of this Clause 5.4(ii) shall not include the Financing);
(iii) By the Purchaser, upon written notice appointment of up to the Seller, if the conditions set out in Clauses 3.2 and 3.3 have not been satisfied one (or satisfied subject only to Completion where applicable1) or waived (where applicable) on or before the Long Stop Date; provided that nominee of the Purchaser shall not be entitled to terminate this Agreement pursuant to this Clause 5.4(iii) if Purchaser’s breach as director of this Agreement has prevented or materially delayed the consummation each subsidiary of the Transactions.Company with effect from the Completion Date;
(iv) By the Seller (if the Seller is not in material breach of the Seller Warranties, covenants or agreements under this Agreement so as to cause any of the conditions set forth in Clause 3.2 and/or 3.3(i) not to be satisfied), upon written notice to required by the Purchaser, if there has been a material inaccuracy of any statement or warranty, or any unremedied material breach of a covenant or other agreement, accepting the resignation of the Purchaser contained in this Agreement, which violation, breach or inaccuracy would cause any company secretary of the conditions set forth in Clause 3.1 and/or 3.3 not Company and the appointment of such person to be satisfied the company secretary as of the Completion Date, and such violation, breach or inaccuracy has not been waived by the Seller or cured by the Purchaser within 20 (twenty) may nominate by not less than three Business Days after receipt by the Purchaser of written Days’ notice thereof from the Seller or is not reasonably capable of being cured prior to the Long Stop Date.before Completion;
(v) By the revocation of all existing bank mandates of the Company and its subsidiaries and the appointment of such persons as the Purchaser (if may nominate for the Purchaser is not in material breach operation of the Purchaser Warranties, covenants or agreements under this Agreement so as to cause any of Company’s and the conditions set forth in Clause 3.1 and/or 3.3 not to be satisfied), upon written notice to the Seller, if there has been a material inaccuracy of any statement or warranty, or any unremedied material breach of a covenant or other agreement, of the Seller contained in this Agreement, which violation, breach or inaccuracy would cause any of the conditions set forth in Clauses 3.2 and/or 3.3(i) not to be satisfied as of the Completion Date, and such violation, breach or inaccuracy has not been waived by the Purchaser or cured by the Seller within 20 (twenty) Business Days after receipt by the Seller of written notice thereof from the Purchaser or is not reasonably capable of being cured prior to the Long Stop Date.subsidiaries’ bank accounts; and
(vi) By the Seller entering into by the Company of and authorizing any one director thereof to execute the same on its behalf the Tax Indemnity;
(2) valid share certificate(s) in respect of the Sale Shares;
(3) duly executed instrument(s) of transfer of the Sale Shares in favour of the Purchaser (or its nominee(s));
(4) an application, in such form as the PurchaserPurchaser may reasonably prescribe, upon written notice for the number of the Consideration Shares to be issued and allotted to the other, if Vendor (or her nominee(s));
(5) such other documents as may be required to give to the Purchaser good title to the Sale Shares and to enable the Purchaser (or its nominee(s)) to become the registered owner thereof;
(6) a court of competent jurisdiction or any other Governmental Authority shall have certificate issued a final, non-appealable order preventing or otherwise prohibiting the consummation by each of the Transactions.Vendor and the Guarantors confirming that she/he is not aware of any event which is in breach or inconsistent with any of the Vendor Warranties;
5.5. If this Agreement is terminated prior to Completion in accordance with Clause 5.4 above,(7) the Tax Indemnity duly executed by the Vendor, the Guarantors and the Company;
(8) the Employment Agreements duly executed by the Key Employees and the Company;
(9) the Non-U.S. Shareholder Certificate duly executed by the Vendor (or her nominee(s));
(10) (i) this Agreement copies, certified by a director of the Company as true and complete, of all statutory records and minute books (which shall become void be duly written up to date as at Completion) including an original copy of the memorandum and articles of no further force association or other equivalent constitutional documents, certificate of incorporation and effect; providedbusiness registration certificates, howeverbusiness licence, that the provisions of this Clause 5.5 governmental approval letters and Clauses 1 certificates (Definitions and Interpretation), 11 (Announcements and Confidentiality), 12 (Notices), 13 (Governing Law, Disputes and Jurisdiction), 14.1 (Entire Agreement), 14.6 (Variation), 14.7 (No Assignment), 14.8 (Waiver), 14.9 (Severability), 14.10 (Supersessionif any) and 14.11 (Expenses) shall survive the termination other statutory records of this Agreement indefinitely and that nothing herein shall relieve any Party from any liability for fraud or any breach of the provisions of this Agreement prior to such termination; and
(ii) if applicable, the Observer shall no longer be entitled to attend the meetings of the Board (or any committee thereof) and the nominees of the Purchaser appointed on the Board in accordance with Clause 6.2 shall resign with immediate effect.each Group Company;
Appears in 1 contract
Sources: Sale and Purchase Agreement (Global Innovative Systems Inc)
Completion. 5.1. Subject to the conditions set out in Clauses 3.1, 3.2 and 3.3, 6.1 Completion shall take place at the Company’s offices in N▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇, or such other place as the Parties agree in writing, and shall begin on the 2nd (second) Business Day following the date on which the State Registration of the New Charter is completed in accordance with Clause 6.5, or such other date as the Parties may agree in writing (the “Completion Date”) and may continue for more than one Business Day.
5.2. The obligations 6.2 At the Pre-Completion Participants’ Meeting, the Buyers shall deliver to the Sellers the following documents:
6.2.1 the original of a notarised power of attorney substantially in the form set out in Schedule 8 authorising a Representative of the Sellers (whose identity is to be notified by the Sellers to the Buyers no later than 20 (twenty) Business Days from the date hereof) to sign and execute for the Buyers the New Charter, if so required by Applicable Law and local registration practice, and file the New Charter for the State Registration;
6.2.2 the original of a notarised power of attorney substantially in the form set out in Schedule 8 authorising the Sellers or a Representative of the Sellers (whose identity is to be notified by the Sellers to the Buyers no later than 20 (twenty) Business Days from the date hereof) to vote on behalf of the Buyers as participants in the Company at a meeting of the participants of the Company in favor of Buyers’ withdrawal from the Company, their transfer of the participation interests in the Company back to the Sellers, and to execute and sign a new charter of the Company listing the Sellers as the participants in the Company, and execute all the documents necessary for the foregoing, which power of attorney shall become effective upon the State Registration and may be revoked by the Buyers only upon the Sellers’ receipt of the Purchase Price pursuant to Clause 6.6.2;
6.2.3 the original of a notarised corporate resolution of each of the Parties under Clause 5.3 below are interdependent of each other. The Completion Buyers, substantially in the form set out in Schedule 8, to terminate their participation in and withdraw from the Company, which resolution shall not occur unless all become effective upon the State Registration and may be revoked by the Buyers only upon the Sellers’ receipt of the obligations specified in Clause 5.3, have been simultaneously complied with and are fully effective.
5.3. On the Completion Date:
(i) Subject to deductions Purchase Price pursuant to Clause 4.4, 6.6.2; and
6.2.4 such other documents that the Purchaser shall remit the Purchase Consideration (Sellers may reasonable request in immediately available funds) writing in order to the Seller’s Bank Account.
(ii) The Seller shall (a) provide to its Depository Participant duly executed DP Instructions in the prescribed form for accomplish the transfer of the Sale Shares participation interest sold hereunder to the Demat Account Buyers back to the Sellers (including without limitation the consent of the Purchaser Buyers in proper form to call and hold a meeting of the participants of the Company without advance notice), which documents shall become effective upon the State Registration and may be revoked by the Buyers only upon the Sellers’ receipt of the Purchase Price pursuant to Clause 6.6.2 (details the documents referred to in Clauses 6.2.2, 6.2.3 and 6.2.4 are referred to as the “Unwinding Documents”).
6.3 On the date, which is 2 (two) Business Days after the date on which the last of the Conditions to be satisfied or waived is satisfied or waived, the Sellers shall hold a general meeting of the participants of the Company (the “Pre-Completion Participants’ Meeting”), which the Buyers shall be provided invited to attend and the Seller in writing as soon as practicable after following resolutions shall be adopted:
6.3.1 the Execution Date); (b) procure its Depository Participant to duly acknowledge such DP Instructions; (c) deliver New Charter shall be approved and signed by the Sellers or the Buyers, if required by Applicable Law or local registration practice;
6.3.2 a copy of such acknowledgement to the Purchaser; and (d) use best endeavours to procure credit resolution of the Sale Shares to Company (the Demat Account of the Purchaser.
(iii“Company Resolution”) The Seller shall, to the extent it is able to do so through exercise of its voting rights, procure that a Board meeting is held at which the following business shall be transactedadopted approving the following:
(a) the appointment of directors nominated by the Purchaser on the Board shall be approved; andNew Charter;
(b) an extra-ordinary general meeting of the shareholders of the Company to approve the matters set out in Clause 5.3(iii)(a) and the amendment of the Articles of Association shall be convened.
5.4. This Agreement may be terminated on or prior to the Completion Date as follows:
(i) By the mutual written consent of the Purchaser and the Seller.
(ii) By the Seller, upon written notice to the Purchaser, if the conditions set out in Clauses 3.1 and 3.3 have not been satisfied (or satisfied subject only to Completion where applicable) or waived (where applicable) on or before 270 (two hundred seventy) days appointment with effect from the Execution Date or such later date as may be mutually agreed between the Parties in writing (“Long Stop Date”); provided that the Seller shall not be entitled to terminate this Agreement pursuant to this Clause 5.4(ii) if Seller’s breach of this Agreement has prevented or materially delayed the consummation of the Transactions (which term for the purposes of this Clause 5.4(ii) shall not include the Financing);
(iii) By the Purchaser, upon written notice to the Seller, if the conditions set out in Clauses 3.2 and 3.3 have not been satisfied (or satisfied subject only to Completion where applicable) or waived (where applicable) on or before the Long Stop Date; provided that the Purchaser shall not be entitled to terminate this Agreement pursuant to this Clause 5.4(iii) if Purchaser’s breach of this Agreement has prevented or materially delayed the consummation of the Transactions.
(iv) By the Seller (if the Seller is not in material breach of the Seller Warranties, covenants or agreements under this Agreement so as to cause any of the conditions set forth in Clause 3.2 and/or 3.3(i) not to be satisfied), upon written notice to the Purchaser, if there has been a material inaccuracy of any statement or warranty, or any unremedied material breach of a covenant or other agreement, of the Purchaser contained in this Agreement, which violation, breach or inaccuracy would cause any of the conditions set forth in Clause 3.1 and/or 3.3 not to be satisfied as of the Completion Date, and contingent upon payment by the Buyers of the amounts envisaged in Clause 6.6.2, of such violationpersons as the Buyers nominate as directors, breach members of the audit commission and auditors of the Company; and
(c) the resignations with effect from the Completion Date, and contingent upon payment by the Buyers of the amounts envisaged in Clause 6.6.2, of the directors referred to in sub-Clause (b) of this clause 6.
6.4 During the course of the Pre-Completion Participants’ Meeting and within 10 (ten) Business Days after the Pre-Completion Participants’ Meeting, the Sellers and the Buyers shall sign, execute and deliver to each other all documents necessary for the State Registration of the New Charter such that the Buyers shall become the legal owners of the Participation Interests, which in the aggregate represent 10% (ten per cent.) of the participation interests in the charter capital of the Company, including the Sellers’ signing and notarising the New Charter as may be required by Applicable Law.
6.5 Within a reasonable time but in any event not later than 10 (ten) Business Days after the Pre-Completion Participants’ Meeting and receipt by the Sellers from the Buyers of the documents listed in Clause 6.2 and such other documents that may be necessary under the Applicable Law, whatever occurs later, the Sellers shall procure that the Company shall file for the registration of the New Charter with the competent Governmental Entity in accordance with the Applicable Law (the “State Registration”). All costs relating to the State Registration shall be borne by the Company. Upon the completion of the State Registration of the New Charter, the Sellers shall promptly notify the Buyers of the completion of the State Registration of the New Charter. The Parties agree that the ownership of the Participation Interests sold and transferred hereunder by the Sellers to the Buyers shall be deemed to vest in the Buyers upon the State Registration.
6.6 At Completion the following actions shall occur in the following succession:
6.6.1 the Seller shall make available for the Buyers’ review the original of the New Charter and the documents listed below in sub-Clauses (c), (d), (e) and (f) of Clause 6.6.3,
6.6.2 the Buyers upon having reviewed the New Charter and the documents listed below in sub-Clauses (c), (d), (e) and (f) of this Clause 6.6.2 shall immediately initiate the payment of (i) an amount corresponding to the Purchase Price less the sum of the Retention Amount, to the Sellers’ Accounts in the proportions set out against each Sellers’ name in column 3 of Schedule 2; (ii) the Advisory Fees Portion to the Advisors’ Accounts in the proportions set out in the Advisory Fee Notice; and (iii) the Retention Amount to the Retention Account, and
6.6.3 immediately following receipt by the Sellers of the Purchase Price, the Sellers shall deliver to the Buyers:
(a) the original of the New Charter,
(b) the originals of the Unwinding Documents,
(c) the original of a notarised waiver by the Sellers of any pre-emption or inaccuracy other rights which it has under the Constituent Documents of the Company or otherwise, and any other documents or consents necessary to enable the Buyers or its nominee(s) to become the legal holder of the Participation Interests,
(d) where applicable, the original of a written notarised consent of the spouse of each Seller for the sale of his Participation Interests and for his waiving his pre-emption rights and consenting to the sales by Other Participants of their respective participatory interest in the charter capital of the Company as required by Ukrainian law,
(e) the originals of the resignation letters signed by each director of the Company acknowledging that each has no claim against the Company in respect of compensation for loss of office redundancy or unfair dismissal, and
(f) the original of a material adverse effect certificate substantially in the form set out in Schedule 9 duly executed by the Sellers.
6.7 Notwithstanding anything to the contrary in this Agreement and without prejudice to the Sellers’ any other rights and remedies hereunder, if the payment envisaged in Clause 6.6.2 does not occur at the Completion as provided in Clause 6.6, the Company, or the Sellers pursuant to the Unwinding Documents, may call and hold a meeting of the participants of the Company without advance notice to the Buyers (to which the Buyers hereby consent) and the Sellers may pursuant to the Unwinding Documents make such decisions at such meeting and amend the New Charter such that the Buyers shall be removed from the New Charter as the participant in the Company, for which amendment and removal the Buyers hereby give the Seller the full power and authority. The Buyers hereby undertake not to call or hold any meetings of the participants of the Company for as long as the Unwinding Documents remain in the possession of the Sellers and have not been waived properly revoked by the Seller Buyers. The Buyers may not cancel, revoke, modify or cured by withdraw the Purchaser within Unwinding Documents at any time while the Unwinding Documents remain in the Sellers’ possession, except as expressly allowed herein (and no Unwinding Document shall be deemed to have been cancelled, revoked, modified or withdrawn for as long as it remains in the Sellers’ possession, unless the Sellers have been notified about its proper cancellation, revocation, modification or withdrawal in instances envisaged in Clause 6.2 above).
6.8 If the Sellers do not comply with the provisions of Clause 6.3, 6.4, 6.5, 6.6.1 or 6.6.3, the Buyers shall not be obliged to complete this Agreement and may:
6.8.1 defer Completion to a date not more than 20 (twenty) Business Days after receipt by the Purchaser of written notice thereof from the Seller that date, or is not reasonably capable of being cured prior to the Long Stop Date, whichever is the earlier (with the provisions of this Clause 6.8 applying to Completion as so deferred);
6.8.2 proceed to Completion as far as practicable (without limiting its rights and remedies under this Agreement); or
6.8.3 treat this Agreement as terminated for breach of condition (without limiting its rights and remedies under this Agreement).
(v) By 6.9 If the Purchaser (if Buyers do not comply with the Purchaser is provisions of Clause 6.2, 6.4, or 6.6.2, the Sellers shall not in material breach of the Purchaser Warranties, covenants or agreements under be obliged to complete this Agreement so as and may:
6.9.1 defer Completion to cause any of the conditions set forth in Clause 3.1 and/or 3.3 a date not to be satisfied), upon written notice to the Seller, if there has been a material inaccuracy of any statement or warranty, or any unremedied material breach of a covenant or other agreement, of the Seller contained in this Agreement, which violation, breach or inaccuracy would cause any of the conditions set forth in Clauses 3.2 and/or 3.3(i) not to be satisfied as of the Completion Date, and such violation, breach or inaccuracy has not been waived by the Purchaser or cured by the Seller within more than 20 (twenty) Business Days after receipt by the Seller of written notice thereof from the Purchaser that date, or is not reasonably capable of being cured prior to the Long Stop Date.
, whichever is the earlier (vi) By the Seller or the Purchaser, upon written notice to the other, if a court of competent jurisdiction or any other Governmental Authority shall have issued a final, non-appealable order preventing or otherwise prohibiting the consummation of the Transactions.
5.5. If this Agreement is terminated prior to Completion in accordance with Clause 5.4 above,
(i) this Agreement shall become void and of no further force and effect; provided, however, that the provisions of this Clause 5.5 6.9 applying to Completion as so deferred);
6.9.2 proceed to Completion as far as practicable (without limiting their rights and Clauses 1 (Definitions and Interpretation), 11 (Announcements and Confidentiality), 12 (Notices), 13 (Governing Law, Disputes and Jurisdiction), 14.1 (Entire remedies under this Agreement), 14.6 (Variation), 14.7 (No Assignment), 14.8 (Waiver), 14.9 (Severability), 14.10 (Supersession) and 14.11 (Expenses) shall survive the termination of ; or
6.9.3 treat this Agreement indefinitely and that nothing herein shall relieve any Party from any liability as terminated for fraud or any breach of condition (without limiting its rights and remedies under this Agreement).
6.10 If completion of the provisions Buyers’ acquisition of this Agreement prior at least an additional 70% (seventy per cent) participation interest in the charter capital of the Company from Other Participants does not occur simultaneously with Completion, neither the Sellers nor the Buyers shall be obliged to such termination; and
(ii) if applicableperform their Completion undertakings, the Observer but shall no longer be entitled to attend the meetings of the Board treat this Agreement as terminated (or any committee thereof) without limiting their rights and the nominees of the Purchaser appointed on the Board in accordance with Clause 6.2 shall resign with immediate effectremedies under this Agreement).
Appears in 1 contract
Sources: Amendment and Restatement Agreement (Pepsiamericas Inc/Il/)
Completion. 5.1. 5.1 Subject to the conditions set out in Clauses 3.1, 3.2 and 3.3provisions of Clause 4, Completion shall take place on the Completion DateDate at the offices of the Purchaser’s Solicitors (or such other place as the Parties may agree in writing) when all of the events described in this Clause 5 shall occur.
5.2. The 5.2 At Completion, the Purchaser shall:
5.2.1 pay an amount equal to the Consideration to the Vendor by telegraphic bank transfer to the following bank account (and/or such other account(s) as may be designated in writing by the Vendor at least five (5) Business Days prior to the Completion Date); Name of Bank: Citic Ka Wah Bank Limited Address of Bank: ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇, Hong Kong Name of Account Holder: Sino Biopharmaceutical Ltd. Account Number: 725103608801
5.2.2 deliver to the Vendor an original counterpart of the Deed of Indemnity duly executed by the Purchaser; and
5.2.3 deliver to the Vendor a certified copy of the minutes of a duly held meeting of the board of directors of the Purchaser approving and authorising the execution of this Agreement, the performance of this Agreement and all transactions contemplated herein.
5.3 At Completion, the Vendor shall:
5.3.1 deliver to the Purchaser:
5.3.1.1 duly executed transfers and sold notes in respect of all of the Sale Shares in favour of the Purchaser or its nominee together with the relative share certificates;
5.3.1.2 a cheque for an amount equal to 0.1% of the HK$ equivalent of the Consideration as at the Completion Date in respect of the Vendor’s share of stamp duty drawn in favour of the Government of the Hong Kong Special Administrative Region;
5.3.1.3 an original counterpart of the Deed of Indemnity duly executed by the Vendor and the Company;
5.3.1.4 duly executed letter of resignation of the Auditors, resigning as the auditors of the Company, such letter to comply with the requirements of Section 140A of the Companies Ordinance, and duly executed letter from Shandong Sincere Certified Public Accountants Co., Ltd. confirming that it has no claim against the Subsidiaries, whether for any outstanding fees or otherwise;
5.3.1.5 (if any) the title deeds, Leases and all other relevant deeds, documents and correspondence relating to the Properties, the land use rights certificates and building ownership certificates relating to the Owned Properties, and leases in respect of the Leased Properties of the Subsidiaries, which are in the possession or under the control of the Vendor or the Company;
5.3.1.6 all the statutory and other books and records (including financial records) duly written up to date of the Company and the certificate of incorporation, current business registration certificate, common seal and chop of the Company and any other papers and documents of the Company in its possession or under its control; and (if any) the Certificates of Approval, business licences, chops, capital contribution reports, tax registration certificates, and foreign exchange registration certificates for each of the Subsidiaries, all the statutory and other books and records (including financial records) duly written up to date of the Subsidiaries and any other papers and documents of the Subsidiaries which are in the possession or under the control of the Vendor or the Company;
5.3.1.7 a completion certificate duly executed by the Vendor pursuant to which it confirms that (1) the Warranties remain true and accurate and not misleading as given as of the Completion Date, save for any breach of the Warranties which the Vendor has notified the Purchaser in writing at least five (5) Business Days prior to the Completion Date and matters fairly and specifically disclosed in the Disclosure Letter; and (2) the Vendor has complied fully with its obligations, covenants, undertakings and agreements under this Agreement on or prior to the Completion Date;
5.3.1.8 unconditional letters of release from the bankers to each member of the Group (if any) evidencing the release and discharge of all guarantees, debentures and charges (if any) granted by any member of the Group in favour of the Vendor and/or any subsidiaries of the Vendor, or in favour of third parties in respect of the performance of the obligations of the Vendor and/or any subsidiaries of the Vendor or any other person not being a member of the Group;
5.3.1.9 a certified copy of the minutes of a duly held meeting of the board of directors of the Vendor approving and authorising the execution of this Agreement and the performance of this Agreement and all transactions contemplated herein;
5.3.1.10 duly executed letters of resignation dated as of the Completion Date in the form set out in Schedule 13 (or the Chinese equivalent) from the Directors and the secretary of the Company and the directors of each of the Parties Subsidiaries who are nominated or appointed by the Vendor (and in case of the Subsidiaries, through the Company);
5.3.1.11 a duly executed confirmation or release from the Vendor (for itself and on behalf of its subsidiaries) and from ▇▇. ▇▇▇ Ping (for himself and on behalf of entities Controlled by him) (as applicable) under Clause 5.3 below are interdependent seal, in the approved terms, releasing the Company and the Subsidiaries from any liability whatsoever (whether actual or contingent) (other than trade debts) which may be owing to the Vendor or any of its subsidiaries or to ▇▇. ▇▇▇ Ping or to any persons Controlled by any of them, by the Company or any of the Subsidiaries at Completion;
5.3.1.12 irrevocable powers of attorney (in the form set out in Schedule 14) executed under seal by each of the holders of the Sale Shares in favour of the Purchaser or such person(s) as may be nominated by the Purchaser;
5.3.1.13 a legal opinion issued by the Vendor’s Solicitors, in the form set out in Schedule 7;
5.3.1.14 a legal opinion issued by a firm of lawyers qualified to advise on PRC law and is satisfactory to the Purchaser, in the form and substance satisfactory to the Purchaser, to state that each Subsidiary has been duly established and registered as a PRC legal person with limited liability, and is validly existing under PRC law, and 55% of the equity interests of each other. The Completion shall not occur unless all of the obligations specified Subsidiaries is legally owned by the Company;
5.3.1.15 all documents evidencing registration or filing (as applicable) of all registrable Intellectual Property owned by the Group, including, without limitation, registration certificates and applications, in Clause 5.3the possession or under the control of the Vendor or the Company (if any);
5.3.1.16 a deed of undertaking by ▇▇. ▇▇▇ Ping in favour of the Purchaser in the form set out in Schedule 10 duly executed by ▇▇. ▇▇▇ Ping;
5.3.1.17 true and correct copies of the Key Management Retention Agreements entered into between the Key Employees and the relevant members of the Group;
5.3.1.18 a true and correct copy of a new HA Compound supply agreement duly executed by CTF and the existing supplier of HA compound to CTF;
5.3.1.19 true and correct copies of the approval of the shareholders of the Vendor (or, have been simultaneously complied with if required under the Listing Rules, the approval of the independent shareholders of the Vendor), in respect of the sale and are fully effective.purchase of the Sale Shares pursuant to this Agreement;
5.35.3.1.20 a true and correct copy of the Patent Licence Contract duly executed by Shandong Research Institute and ▇▇. On ▇▇▇▇ Peixue; and
5.3.1.21 a true and correct copy of the Completion DateProperty Title Certificate in respect of CTF’s ownership of the property located at Guanhai Building, northwest corner, ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇, Haidian District, Beijing;
5.3.2 make available to the Purchaser in the PRC for inspection purposes:
(i) Subject 5.3.2.1 the title deeds, Leases and all other relevant deeds, documents and correspondences relating to deductions pursuant to Clause 4.4the Properties, the Purchaser shall remit the Purchase Consideration (in immediately available funds) land use rights certificates and building ownership certificates relating to the Seller’s Bank Account.Owned Properties, and leases in respect of the Leased Properties of the Subsidiaries;
5.3.2.2 the Certificates of Approval, business licences, chops, capital contribution reports, tax registration certificates, and foreign exchange registration certificates for each of the Subsidiaries, all the Statutory and other books and records (iiincluding financial records) The Seller duly written up to date of the Subsidiaries and all other papers and documents of the Subsidiaries; and
5.3.2.3 all documents evidencing registration or filing (as applicable) of all registrable Intellectual Property owned by the Group, including, without limitation, registration certificates and applications;
5.3.3 cause the Directors to hold a meeting of the Board at which the Directors shall (a) provide to its Depository Participant duly executed DP Instructions in the prescribed form for pass resolutions to:
5.3.3.1 approve the transfer of the Sale Shares pursuant to this Agreement and the Demat Account registration of the Purchaser (details or its nominees as members of which shall be provided the Company subject only to the Seller production of duly stamped and completed transfers in writing as soon as practicable after respect of the Execution Date); (b) procure its Depository Participant Sale Shares;
5.3.3.2 approve and authorise the execution by the Company of the Deed of Indemnity;
5.3.3.3 accept the resignation of the Auditors, Directors and secretary of the Company referred to duly acknowledge such DP Instructions; (c) deliver a copy in Clauses 5.3.1.4 and 5.3.1.10;
5.3.3.4 appoint the directors and secretary of such acknowledgement to the Company nominated by the Purchaser; and and
5.3.3.5 (d) use best endeavours to procure credit if any bank account of the Sale Shares Company remains on the Completion Date) revoke all of the authorities to the Demat Account bankers of the Purchaser.Company relating to bank accounts and authorise such persons as the Purchaser may nominate to operate the same;
5.3.4 cause such persons as the Purchaser may nominate (iiiat least three (3) The Seller shall, Business Days prior to the extent it is able Completion Date) to do so through exercise of its voting rights, procure that a Board meeting is held at which the following business shall be transacted:
(a) the appointment of validly appointed as directors nominated by the Purchaser on the Board shall be approved; and
(b) an extra-ordinary general meeting and secretary of the shareholders Company and upon such appointment forthwith cause the Directors and the secretary of the Company to approve resign from their respective offices and as employees, each delivering to the matters Purchaser a resignation letter under seal in the form set out in Clause 5.3(iii)(a) and Schedule 13;
5.3.5 cause the amendment Legal Representative of each of the Articles Subsidiaries to arrange for the filing with the relevant authorities in the PRC in relation to the new directors of Association shall be convened.the Subsidiaries nominated or appointed by the Purchaser through the Company, subject to the new directors having signed the appointment forms;
5.4. This Agreement 5.3.6 cause such persons as the Purchaser may be terminated on or nominate (at least three (3) Business Days prior to the Completion Date Date) to be validly appointed as follows:directors of each of the Subsidiaries nominated or appointed by the Vendor through the Company in accordance with the Joint Venture Contract and Articles of Association of the relevant Subsidiary and upon such appointment forthwith cause the directors of each of the Subsidiaries nominated or appointed by the Vendor through the Company to resign from their respective offices and as employees, each delivering to the Purchaser a letter acknowledging that the person so retiring has no claim outstanding for compensation or otherwise; and
5.3.7 (i) By procure revocation of all authorities to the mutual written consent bankers of the Company relating to bank accounts and use best efforts to procure the giving of authority to such persons as the Purchaser and may nominate to operate the Seller.
(ii) By the Sellersame, upon written notice to the Purchaser, or if the conditions set out in Clauses 3.1 and 3.3 have not been satisfied (or satisfied subject only to Completion where applicable) or waived (where applicable) on or before 270 (two hundred seventy) days from the Execution Date or such later date as may be mutually agreed between the Parties in writing (“Long Stop Date”); provided that the Seller shall not be entitled to terminate this Agreement pursuant to this Clause 5.4(ii) if Seller’s breach of this Agreement has prevented or materially delayed the consummation no bank account of the Transactions (which term for the purposes of this Clause 5.4(ii) shall not include the Financing);
(iii) By the Purchaser, upon written notice to the Seller, if the conditions set out in Clauses 3.2 and 3.3 have not been satisfied (or satisfied subject only to Completion where applicable) or waived (where applicable) Company remains on or before the Long Stop Date; provided that the Purchaser shall not be entitled to terminate this Agreement pursuant to this Clause 5.4(iii) if Purchaser’s breach of this Agreement has prevented or materially delayed the consummation of the Transactions.
(iv) By the Seller (if the Seller is not in material breach of the Seller Warranties, covenants or agreements under this Agreement so as to cause any of the conditions set forth in Clause 3.2 and/or 3.3(i) not to be satisfied), upon written notice to the Purchaser, if there has been a material inaccuracy of any statement or warranty, or any unremedied material breach of a covenant or other agreement, of the Purchaser contained in this Agreement, which violation, breach or inaccuracy would cause any of the conditions set forth in Clause 3.1 and/or 3.3 not to be satisfied as of the Completion Date, deliver a bank cashier order made payable to the Company for all credit balances therein prior to their closure in excess of HK$10,000; and such violation, breach or inaccuracy has not been waived by (ii) procure the Seller or cured by the Purchaser within 20 (twenty) Business Days after receipt by delivery to a representative of the Purchaser of written notice thereof from the Seller or is not reasonably capable chops held by the Chief Financial Officer of being cured prior the Subsidiaries which are required in order to operate the bank accounts of the Subsidiaries in the PRC.
5.4 Without prejudice to any other remedies available to the Long Stop Date.
(v) By the Purchaser (if the Purchaser is not in material breach of the Purchaser Warranties, covenants or agreements under this Agreement so as to cause any of the conditions set forth in Clause 3.1 and/or 3.3 not to be satisfied), upon written notice to the Sellerrelevant Party, if there has been a material inaccuracy in any respect the provisions of any statement or warranty, or any unremedied material breach of a covenant or Clause 5 (other agreement, of than Clause 5.3.1.21) are not complied with by the Seller contained in this Agreement, which violation, breach or inaccuracy would cause any of the conditions set forth in Clauses 3.2 and/or 3.3(i) not to be satisfied as of relevant Party on the Completion Date, the Party not in default may:
5.4.1 defer Completion to a date not more than 28 days after the Completion Date (and such violation, breach or inaccuracy has not been waived by the Purchaser or cured by the Seller within 20 (twenty) Business Days after receipt by the Seller of written notice thereof from the Purchaser or is not reasonably capable of being cured prior to the Long Stop Date.
(vi) By the Seller or the Purchaser, upon written notice to the other, if a court of competent jurisdiction or any other Governmental Authority shall have issued a final, non-appealable order preventing or otherwise prohibiting the consummation of the Transactions.
5.5. If this Agreement is terminated prior to Completion in accordance with Clause 5.4 above,
(i) this Agreement shall become void and of no further force and effect; provided, however, so that the provisions of this Clause 5.5 and Clauses 1 5.4 shall apply to Completion as so deferred);
5.4.2 proceed to Completion so far as practicable (Definitions and Interpretation), 11 (Announcements and Confidentiality), 12 (Notices), 13 (Governing Law, Disputes and Jurisdiction), 14.1 (Entire without prejudice to its rights under this Agreement), 14.6 (Variation), 14.7 (No Assignment), 14.8 (Waiver), 14.9 (Severability), 14.10 (Supersession) and 14.11 (Expenses) shall survive the termination of ; or
5.4.3 terminate this Agreement indefinitely and that nothing herein shall relieve any Party from any liability for fraud or any breach of the provisions of this Agreement prior to such termination; and
(ii) if applicable, the Observer shall no longer be entitled to attend the meetings of the Board (or any committee thereof) and the nominees of the Purchaser appointed on the Board in accordance with Clause 6.2 shall resign with immediate effectAgreement.
Appears in 1 contract
Sources: Agreement for the Sale and Purchase of Shares (Bausch & Lomb Inc)
Completion. 5.1. Subject to the conditions set out in Clauses 3.1, 3.2 and 3.3, 4.1 Completion shall take place at such time on the Completion Date as the parties shall agree at the offices of the Purchaser’s Solicitors at On▇ ▇▇▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇.
4.2 At Completion the Sellers shall do those things listed in Part 1 of Schedule 1 (Completion arrangements) and the Purchaser shall do those things listed in Part 2 of Schedule 1 (Completion arrangements).
4.3 The transfer of the Shares shall be recorded in the Company’s stock ledger on the Completion Date.
5.2. The obligations of each Each of the Parties under Clause 5.3 below are interdependent Sellers hereby grants an irrevocable and exclusive power of attorney to each other. The Completion shall not occur unless all lawyer of the obligations specified in Clause 5.3law firm of NautaDutilh, have been simultaneously complied with and are fully effective.
5.3. On the Completion Date:
(i) Subject located at Te▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇, to deductions pursuant to Clause 4.4, the Purchaser shall remit the Purchase Consideration (in immediately available funds) to the Seller’s Bank Account.
(ii) The Seller shall (a) provide to its Depository Participant duly executed DP Instructions in the prescribed form for record the transfer of the Sale Shares in the Company’s stock ledger and to take any other action and sign any other document as may be necessary in order that such transfer be enforceable against third parties.
4.4 The Purchaser shall not be obliged to complete this agreement unless the Demat Account Sellers comply fully with the requirements of sub-clause 4.2 and Part 1 of Schedule 1 (Completion arrangements).
4.5 The Sellers shall not be obliged to complete this agreement unless the Purchaser complies fully with the provisions of sub-clause 4.2 and Part 2 of Schedule 1 (Completion arrangements).
4.6 The Purchaser shall not be obliged to complete the sale and purchase of any of the Shares unless the sale and purchase of all the Shares is completed simultaneously. This sub-clause shall not limit any other clause of this agreement and in particular clause 16 (Remedies and waivers).
4.7 Payment by telegraphic transfer for the amount of the Cash Purchase Price in accordance with paragraph 10 of Schedule 1 (Completion arrangements) and delivery of the Loan Note in the amount stated in sub-clause 3.1(B) (Consideration) in accordance with paragraph 11 of Schedule 1 (Completion arrangements) shall constitute payment of the consideration for the Shares and the PIHI Indebtedness and shall discharge the obligations of the Purchaser under clause 2 (details of which shall be provided to the Seller in writing as soon as practicable after the Execution Date); (b) procure its Depository Participant to duly acknowledge such DP Instructions; (c) deliver a copy of such acknowledgement to the Purchaser; Sale and (d) use best endeavours to procure credit of the Sale Shares to the Demat Account of the Purchaser.
(iii) The Seller shall, to the extent it is able to do so through exercise of its voting rights, procure that a Board meeting is held at which the following business shall be transacted:
(a) the appointment of directors nominated by the Purchaser on the Board shall be approved; and
(b) an extra-ordinary general meeting of the shareholders of the Company to approve the matters set out in Clause 5.3(iii)(apurchase) and the amendment of the Articles of Association shall be convened.
5.4. This Agreement may be terminated on or prior to the Completion Date as follows:
(i) By the mutual written consent of the Purchaser and the Seller.
(ii) By the Seller, upon written notice to the Purchaser, if the conditions set out in Clauses 3.1 and 3.3 have not been satisfied (or satisfied subject only to Completion where applicable) or waived (where applicable) on or before 270 (two hundred seventy) days from the Execution Date or such later date as may be mutually agreed between the Parties in writing (“Long Stop Date”); provided that the Seller shall not be entitled to terminate this Agreement pursuant to this Clause 5.4(ii) if Seller’s breach of this Agreement has prevented or materially delayed the consummation of the Transactions (which term for the purposes of this Clause 5.4(ii) shall not include the Financing);
(iii) By the Purchaser, upon written notice to the Seller, if the conditions set out in Clauses 3.2 and 3.3 have not been satisfied (or satisfied subject only to Completion where applicable) or waived (where applicable) on or before the Long Stop Date; provided that the Purchaser shall not be entitled concerned to terminate this Agreement pursuant to this Clause 5.4(iii) if Purchaser’s breach of this Agreement has prevented or materially delayed see that the consummation of moneys transferred are applied in paying the Transactions.
(iv) By the Seller (if the Seller is not in material breach of the Seller Warranties, covenants or agreements under this Agreement so as to cause any of the conditions set forth in Clause 3.2 and/or 3.3(i) not to be satisfied), upon written notice to the Purchaser, if there has been a material inaccuracy of any statement or warranty, or any unremedied material breach of a covenant or other agreement, of the Purchaser contained in this Agreement, which violation, breach or inaccuracy would cause any of the conditions set forth in Clause 3.1 and/or 3.3 not to be satisfied as of the Completion Date, and such violation, breach or inaccuracy has not been waived by the Seller or cured by the Purchaser within 20 (twenty) Business Days after receipt by the Purchaser of written notice thereof from the Seller or is not reasonably capable of being cured prior to the Long Stop Date.
(v) By the Purchaser (if the Purchaser is not in material breach of the Purchaser Warranties, covenants or agreements under this Agreement so as to cause any of the conditions set forth in Clause 3.1 and/or 3.3 not to be satisfied), upon written notice to the Seller, if there has been a material inaccuracy of any statement or warranty, or any unremedied material breach of a covenant or other agreement, of the Seller contained in this Agreement, which violation, breach or inaccuracy would cause any of the conditions set forth in Clauses 3.2 and/or 3.3(i) not to be satisfied as of the Completion Date, and such violation, breach or inaccuracy has not been waived by the Purchaser or cured by the Seller within 20 (twenty) Business Days after receipt by the Seller of written notice thereof from the Purchaser or is not reasonably capable of being cured prior to the Long Stop Date.
(vi) By the Seller or the Purchaser, upon written notice to the other, if a court of competent jurisdiction or any other Governmental Authority shall have issued a final, non-appealable order preventing or otherwise prohibiting the consummation of the Transactions.
5.5. If this Agreement is terminated prior to Completion Sellers in accordance with Clause 5.4 above,their respective entitlements.
4.8 The Purchaser shall become entitled to the benefit of, and the Principal Seller’s rights or benefits under or in relation to, the PIHI Indebtedness and this agreement shall constitute an assignment of the benefit of the PIHI Indebtedness with effect from Completion. The Principal Seller and the Purchaser shall immediately notify the Company of the assignment of the PIHI Indebtedness and the Principal Seller shall procure that the Company shall execute and deliver an acknowledgement of the assignment at Completion.
4.9 The Guarantor and the Principal Seller hereby with effect from Completion waive and shall procure that all other members of the Retained Group waive all obligations and liabilities (actual or contingent, present or future) of the members of the Group to any member of the Retained Group, other than:
(iA) this Agreement shall become void subject to sub-clause 4.8, the PIHI Indebtedness;
(B) the obligations and liabilities of no further force and effect; provided, however, that the provisions of this Clause 5.5 and Clauses 1 (Definitions and Interpretation), 11 (Announcements and Confidentiality), 12 (Notices), 13 (Governing Law, Disputes and Jurisdiction), 14.1 (Entire Agreement), 14.6 (Variation), 14.7 (No Assignment), 14.8 (Waiver), 14.9 (Severability), 14.10 (Supersession) and 14.11 (Expenses) shall survive the termination of this Agreement indefinitely and that nothing herein shall relieve any Party from any liability for fraud or any breach member of the provisions of this Agreement prior to such terminationGroup under any Share Purchase Document; and
(iiC) if applicableany liability which is included in the current liabilities as at 28th March, 2004 when calculating the Observer shall no longer be entitled to attend the meetings amount of the Board (or any committee thereof) and the nominees of the Purchaser appointed on the Board in accordance with Clause 6.2 shall resign with immediate effectActual Working Capital Deficit.
Appears in 1 contract
Completion. 5.1. Subject to 5.1 Upon compliance with or fulfilment of all the conditions set out in Clauses 3.1, 3.2 and 3.3Clause 3.2, Completion shall take place at 4:00 p.m. on the Completion DateDate at the offices of the Purchaser or such other place as the Vendor and Purchaser may agree when all the acts and requirements set out in this Clause 5 shall be complied with.
5.2. The obligations 5.2 At Completion, the Vendor shall deliver or cause to be delivered to the Purchaser:
(a) duly executed instrument(s) of each transfer in respect of the Parties under Clause 5.3 below are interdependent of each other. The Completion shall not occur unless all transfer of the obligations specified Sale Shares duly executed;
(b) original share certificate(s) in respect of the Sale Shares;
(c) the Tax Indemnity duly executed;
(d) copy of resolutions of the board of directors of the relevant Group Company referred to in Clause 5.3, have been simultaneously complied with ;
(e) such other documents as may be required to give to the Purchaser good title to the Sale Shares and are fully effectiveto enable the Purchaser or its nominees to become the registered owner thereof.
5.3. On 5.3 The Vendor shall procure meetings of the Completion Dateboard of directors and shareholders (if necessary) of the relevant Group Company to be held at which resolutions shall be passed for:
(ia) Subject to deductions pursuant to Clause 4.4in the case of the Company, the Purchaser shall remit the Purchase Consideration (in immediately available funds) to the Seller’s Bank Account.
(ii) The Seller shall (a) provide to its Depository Participant duly executed DP Instructions in the prescribed form approval for the transfer of the Sale Shares to the Demat Account Purchaser (or its nominees) and the registration of such transfer.
5.4 Concurrent with the performance by the Vendor of his obligations under Clauses 5.2 and 5.3, the Purchaser (details of which shall be provided to the Seller in writing as soon as practicable after the Execution Date); (b) procure its Depository Participant to duly acknowledge such DP Instructions; (c) deliver a copy of such acknowledgement to the Purchaser; and (d) use best endeavours to procure credit of the Sale Shares to the Demat Account of the Purchaser.
(iii) The Seller shall, to the extent it is able to do so through exercise of its voting rights, procure that a Board meeting is held at which the following business shall be transacted:
(a) deliver to the appointment Vendor a copy of the resolutions of the board of directors nominated by of the Purchaser and its Shareholder respectively approving this Agreement, the Tax Indemnity and other documents necessary for the purpose of effecting this transaction and authorizing a person or persons to execute the same (with seal, where appropriate) for and on its behalf;
(b) deliver to the Board shall be approvedVendor a cheque or telegraphic transfer form for the sum of US$4,099,000 in favour of the Vendor or his nominee(s); and
(bc) an extra-ordinary general meeting of the shareholders of the Company to approve the matters set out in Clause 5.3(iii)(a) and the amendment of the Articles of Association shall be convened.
5.4. This Agreement may be terminated on or prior deliver to the Completion Date as follows:
(i) By Vendor the mutual written consent of the Purchaser and the Seller.
(ii) By the Seller, upon written notice to the Purchaser, if the conditions set out in Clauses 3.1 and 3.3 have not been satisfied (or satisfied subject only to Completion where applicable) or waived (where applicable) on or before 270 (two hundred seventy) days from the Execution Date or such later date as may be mutually agreed between the Parties in writing (“Long Stop Date”); provided that the Seller shall not be entitled to terminate this Agreement pursuant to this Clause 5.4(ii) if Seller’s breach of this Agreement has prevented or materially delayed the consummation of the Transactions (which term for the purposes of this Clause 5.4(ii) shall not include the Financing);
(iii) By the Purchaser, upon written notice to the Seller, if the conditions set out in Clauses 3.2 and 3.3 have not been satisfied (or satisfied subject only to Completion where applicable) or waived (where applicable) on or before the Long Stop Date; provided that the Purchaser shall not be entitled to terminate this Agreement pursuant to this Clause 5.4(iii) if Purchaser’s breach of this Agreement has prevented or materially delayed the consummation of the Transactions.
(iv) By the Seller (if the Seller is not in material breach of the Seller Warranties, covenants or agreements under this Agreement so as to cause any of the conditions set forth in Clause 3.2 and/or 3.3(i) not to be satisfied), upon written notice to the Purchaser, if there has been a material inaccuracy of any statement or warranty, or any unremedied material breach of a covenant or other agreement, of the Purchaser contained in this Agreement, which violation, breach or inaccuracy would cause any of the conditions set forth in Clause 3.1 and/or 3.3 not to be satisfied as of the Completion Date, and such violation, breach or inaccuracy has not been waived by the Seller or cured Promissory Note duly executed by the Purchaser within 20 (twenty) Business Days after receipt by the Purchaser of written notice thereof from the Seller or is not reasonably capable of being cured prior to the Long Stop Date.
(v) By the Purchaser (if the Purchaser is not in material breach favour of the Purchaser Warranties, covenants or agreements under this Agreement so as to cause any of the conditions set forth in Clause 3.1 and/or 3.3 not to be satisfied), upon written notice to the Seller, if there has been a material inaccuracy of any statement or warranty, or any unremedied material breach of a covenant or other agreement, of the Seller contained in this Agreement, which violation, breach or inaccuracy would cause any of the conditions set forth in Clauses 3.2 and/or 3.3(i) not to be satisfied as of the Completion Date, and such violation, breach or inaccuracy has not been waived by the Purchaser or cured by the Seller within 20 (twenty) Business Days after receipt by the Seller of written notice thereof from the Purchaser or is not reasonably capable of being cured prior to the Long Stop Date.
(vi) By the Seller or the Purchaser, upon written notice to the other, if a court of competent jurisdiction or any other Governmental Authority shall have issued a final, non-appealable order preventing or otherwise prohibiting the consummation of the Transactions.
5.5. If this Agreement is terminated prior to Completion in accordance with Clause 5.4 above,
(i) this Agreement shall become void and of no further force and effect; provided, however, that the provisions of this Clause 5.5 and Clauses 1 (Definitions and Interpretation), 11 (Announcements and Confidentiality), 12 (Notices), 13 (Governing Law, Disputes and Jurisdiction), 14.1 (Entire Agreement), 14.6 (Variation), 14.7 (No Assignment), 14.8 (Waiver), 14.9 (Severability), 14.10 (Supersession) and 14.11 (Expenses) shall survive the termination of this Agreement indefinitely and that nothing herein shall relieve any Party from any liability for fraud or any breach of the provisions of this Agreement prior to such termination; and
(ii) if applicable, the Observer shall no longer be entitled to attend the meetings of the Board Vendor (or any committee thereof) and the nominees of the Purchaser appointed on the Board in accordance with Clause 6.2 shall resign with immediate effect.his nominee(s))
Appears in 1 contract
Sources: Agreement for Sale and Purchase of Shares (Raytech Holding LTD)
Completion. 5.1. Subject to the conditions set out in Clauses 3.1, 3.2 and 3.3, 6.1 Completion shall take place on the Completion DateDate at the offices of the Purchaser’s Solicitors at 47/▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇ ▇ong.
5.2. The obligations 6.2 At Completion the Seller shall do those things listed in paragraphs 1, 2, 4 and 5 of each Part A (Parties’ obligations) of the Parties under Clause 5.3 below are interdependent of each other. The Schedule 2 (Completion shall not occur unless all of the obligations specified in Clause 5.3, have been simultaneously complied with arrangements) and are fully effective.
5.3. On the Completion Date:
(i) Subject to deductions pursuant to Clause 4.4, the Purchaser shall remit the Purchase Consideration do those things listed in paragraph 3 of Part A (Parties’ obligations) of Schedule 2 (Completion arrangements). Completion shall take place in immediately available fundsaccordance with Part B (General) to the Seller’s Bank Accountof Schedule 2 (Completion arrangements).
(ii) 6.3 The Seller Purchaser shall (a) provide not be obliged to its Depository Participant duly executed DP Instructions in complete the prescribed form for the transfer sale and purchase of the Sale Shares to the Demat Account of the Purchaser (details of which shall be provided to unless the Seller in writing as soon as practicable after complies with the Execution Daterequirements of sub-clause 6.2 and paragraphs 1, 2, 4 and 5 of Part A (Parties’ obligations) of Schedule 2 (Completion arrangements); (b) procure its Depository Participant . The Seller shall not be obliged to duly acknowledge such DP Instructions; (c) deliver a copy of such acknowledgement to complete the Purchaser; sale and (d) use best endeavours to procure credit purchase of the Sale Shares unless the Purchaser complies with the requirements of paragraph 3 of Part A (Parties’ obligations) of Schedule 2 (Completion arrangements).
6.4 Neither party shall be obliged to complete the Demat Account sale and purchase of any of the Purchaser.
(iii) The Seller shall, to the extent it is able to do so through exercise of its voting rights, procure that a Board meeting is held at which the following business shall be transactedSale Shares unless:
(aA) the appointment sale and purchase of directors nominated by all the Purchaser on the Board shall be approvedSale Shares is completed simultaneously; and
(bB) an extra-ordinary general meeting of this Agreement, the shareholders of CGC SPA, the Company to approve Listco SPA (save for the matters set out in Clause 5.3(iii)(aSecond Completion (as defined under the Listco SPA)) and the amendment CGC Listco SPA (save for the Second Completion (as defined under the CGC Listco SPA)) are completed substantially contemporaneously.
6.5 If the obligations of the Articles Seller under sub-clause 6.2 and paragraphs 1, 2, 4 and 5 of Association shall be convened.
5.4. This Agreement may be terminated Part A (Parties’ obligations) of Schedule 2 (Completion arrangements) are not complied with on or prior to the Completion Date as followsDate, the Purchaser may, and if the obligations of the Purchaser under sub-clause 6.2 and paragraph 3 of Part A (Parties’ obligations) of Schedule 2 (Completion arrangements) are not complied with on the Completion Date, the Seller may:
(iA) By defer Completion (so that the mutual written consent provisions of the Purchaser and the Seller.
(ii) By the Seller, upon written notice to the Purchaser, if the conditions set out in Clauses 3.1 and 3.3 have not been satisfied (or satisfied subject only this clause 6 shall apply to Completion where applicable) or waived (where applicable) on or before 270 (two hundred seventy) days from the Execution Date or such later date as may be mutually agreed between the Parties in writing (“Long Stop Date”); provided that the Seller shall not be entitled to terminate this Agreement pursuant to this Clause 5.4(ii) if Seller’s breach of this Agreement has prevented or materially delayed the consummation of the Transactions (which term for the purposes of this Clause 5.4(ii) shall not include the Financingso deferred);
(iiiB) By the Purchaser, upon written notice to the Seller, if the conditions set out in Clauses 3.2 and 3.3 have not been satisfied (or satisfied subject only proceed to Completion where applicableas far as practicable (without limiting its rights under this Agreement); or
(C) or waived (where applicable) on or before the Long Stop Date; provided that the Purchaser shall not be entitled to terminate this Agreement pursuant by notice in writing to this Clause 5.4(iii) if Purchaser’s breach of this Agreement has prevented or materially delayed the consummation of the Transactions.
(iv) By the Seller (if the Seller is not in material breach of the Seller Warranties, covenants or agreements under this Agreement so as to cause any of the conditions set forth in Clause 3.2 and/or 3.3(i) not to be satisfied), upon written notice to the Purchaser, if there has been a material inaccuracy of any statement or warranty, or any unremedied material breach of a covenant or other agreement, of the Purchaser contained in this Agreement, which violation, breach or inaccuracy would cause any of the conditions set forth in Clause 3.1 and/or 3.3 not to be satisfied as of the Completion Date, and such violation, breach or inaccuracy has not been waived by the Seller or cured by the Purchaser within 20 (twenty) Business Days after receipt by the Purchaser of written notice thereof from the Seller or is not reasonably capable of being cured prior to the Long Stop Date.
(v) By the Purchaser (if the Purchaser is not in material breach of the Purchaser Warranties, covenants or agreements under this Agreement so as to cause any of the conditions set forth in Clause 3.1 and/or 3.3 not to be satisfied), upon written notice to the Seller, if there has been a material inaccuracy of any statement or warranty, or any unremedied material breach of a covenant or other agreement, of the Seller contained in this Agreement, which violation, breach or inaccuracy would cause any of the conditions set forth in Clauses 3.2 and/or 3.3(i) not to be satisfied as of the Completion Date, and such violation, breach or inaccuracy has not been waived by the Purchaser or cured by the Seller within 20 (twenty) Business Days after receipt by the Seller of written notice thereof from the Purchaser or is not reasonably capable of being cured prior to the Long Stop Date.
(vi) By the Seller or the Purchaser, upon written notice to as the other, if a court of competent jurisdiction or any other Governmental Authority shall have issued a final, non-appealable order preventing or otherwise prohibiting the consummation of the Transactionscase may be.
5.5. 6.6 If this Agreement is terminated prior to Completion by the Purchaser in accordance with Clause 5.4 above,sub-clause 6.5 and without limiting either party’s right to any right, power or remedy provided by law or under this Agreement:
(iA) this Agreement shall become void the Seller will indemnify the Purchaser on demand on an after-Tax basis for all reasonable costs and of no further force expenses incurred by the Purchaser in accordance with sub-clause 17.2 (Costs and effect; provided, however, that the provisions of this Clause 5.5 and Clauses 1 (Definitions and Interpretationexpenses), 11 (Announcements and Confidentiality), 12 (Notices), 13 (Governing Law, Disputes and Jurisdiction), 14.1 (Entire Agreement), 14.6 (Variation), 14.7 (No Assignment), 14.8 (Waiver), 14.9 (Severability), 14.10 (Supersession) and 14.11 (Expenses) shall survive the termination of this Agreement indefinitely and that nothing herein shall relieve any Party from any liability for fraud or any breach of the provisions of this Agreement prior to such termination; and
(iiB) if applicable, the Observer shall no longer be entitled to attend the meetings all obligations of the Board parties under this Agreement shall end except for those expressly stated to continue without limit in time but (for the avoidance of doubt) all rights and liabilities of the parties which have accrued before termination shall continue to exist.
6.7 The Seller undertakes to indemnify the Purchaser against any loss, expense or damage which it may suffer as a result of any committee thereof) document delivered to it pursuant to this clause being unauthorised, invalid or for any other reason ineffective for its purpose.
6.8 The Seller covenants with the Purchaser to pay to the Purchaser an amount calculated on an after-Tax basis equal to the value of any and all claims which may be made against any member of the nominees Group by any of ▇▇▇▇▇ ▇▇▇▇-▇▇▇▇ and ▇▇▇▇▇ ▇▇▇▇▇-▇▇▇, because of their resignation from office or of their employment being terminated and an amount equal to all costs, charges and expenses incurred by any member of the Group which are incidental to any such claim.
6.9 Payment by or on behalf of the Purchaser appointed on for the Board amount stated in sub-clause 5.1 (Consideration) in accordance with Clause 6.2 paragraph 3 of Part A (Parties’ obligations) of Schedule 2 (Completion arrangements) shall resign with immediate effectconstitute payment of the consideration for the Sale Shares and shall fully discharge the obligations of the Purchaser under sub-clause 2.1 (Sale and purchase).
Appears in 1 contract
Sources: Share Purchase Agreement (Alibaba Group Holding LTD)
Completion. 5.1. Subject to 5.1 Completion in respect of the conditions set out in Clauses 3.1, 3.2 sale and 3.3, Completion purchase of the Sale Shares shall take place on the Completion Date, at such place and in such manner as the Parties may agree, whereupon the Sellers and the Buyer shall perform their respective obligations set out in Clauses 5.2 to 5.4.
5.2. The obligations of 5.2 At Completion, each of the Parties under Clause 5.3 below are interdependent of each other. The Completion shall not occur unless all Sellers shall:
5.2.1 deliver to or to the order of the obligations specified Buyer sold note(s) duly executed by each Seller in Clause 5.3, have been simultaneously complied respect of the Sale Shares as held by such ▇▇▇▇▇▇ completed in favour of the Buyer (or as it may direct);
5.2.2 give an irrevocable delivery instruction to its CCASS Participant to effect a “delivery versus payment” book-entry settlement and delivery of the Sale Shares in accordance with this Agreement and are fully effective.
5.3. On the Completion Date:
(i) Subject to deductions pursuant to Clause 4.4, General Rules and the Purchaser shall remit the Purchase Consideration (in immediately available funds) Operational Procedures of CCASS to the Seller’s Bank Account.credit of the stock account of the CCASS Participant of the Buyer in accordance with the details provided to the Sellers by the Buyer;
5.2.3 deliver to the Buyer a stock transfer form (ii) The Seller shall (a) provide to its Depository Participant duly executed DP Instructions in the prescribed form for the transfer by its CCASS Participant) duly executed by each Seller in respect of the Sale Shares as held by such Seller (the “Prescribed Transfer Form”) for the Buyer to countersign, and shall then deliver the executed and countersigned Prescribed Transfer Form to its CCASS Participant; and
5.2.4 (in the case of Seller B) deliver to the Demat Account Buyer a copy of the Purchaser resolutions or minutes of the board of directors of Seller B (details in such form and substance to the satisfaction of which shall be provided the Buyer), approving and authorising the transfer relating to the Seller B Shares, execution and delivery of, and the performance by Seller B of its obligations under this Agreement and the documents listed under Clauses
4.1 and 5.2, with specimen signature of the director(s) who shall be the signatories to this Agreement and the documents listed under Clauses 4.1 and 5.2, and certified by a director of Seller B or by a Hong Kong qualified solicitor as being true and complete.
5.3 Subject to the Buyer’s discretionary decision, the Completion of sale and purchase of the Seller A Shares and the Seller B Shares shall be mutually conditional and happen simultaneously.
5.4 At Completion, subject to compliance with Clause 5.2 by the Sellers and the receipt of duly signed documents as set forth in writing as soon as practicable after Clause 5.2, the Execution Date); (b) procure Buyer shall:
5.4.1 instruct its Depository CCASS Participant to duly acknowledge pay the Consideration in such DP Instructions; (c) deliver a copy of such acknowledgement to the Purchaser; and (d) use best endeavours to procure credit of the Sale Shares to the Demat Account of the Purchaser.
(iii) The Seller shall, to the extent it is able to do so through exercise of its voting rights, procure that a Board meeting is held at which the following business shall be transacted:
(a) the appointment of directors nominated by the Purchaser on the Board shall be approved; and
(b) an extra-ordinary general meeting of the shareholders of the Company to approve the matters manner as set out in Clause 5.3(iii)(a) 3, and deliver to the amendment respective Seller the written evidence of the Articles of Association shall be convened.
5.4. This Agreement may be terminated on or prior Buyer’s irrevocable instructions to its CCASS Participant to effect the Completion Date as follows:
(i) By the mutual written consent payment of the Purchaser and the Seller.
(ii) By the Seller, upon written notice to the Purchaser, if the conditions set out in Clauses 3.1 and 3.3 have not been satisfied (or satisfied subject only to Completion where applicable) or waived (where applicable) Consideration on or before 270 (two hundred seventy) days from the Execution Date or such later date as may be mutually agreed between the Parties in writing (a “Long Stop Date”); provided that the Seller shall not be entitled to terminate this Agreement pursuant to this Clause 5.4(ii) if Seller’s breach of this Agreement has prevented or materially delayed the consummation of the Transactions (which term for the purposes of this Clause 5.4(ii) shall not include the Financing);
(iii) By the Purchaser, upon written notice to the Seller, if the conditions set out in Clauses 3.2 and 3.3 have not been satisfied (or satisfied subject only to Completion where applicable) or waived (where applicable) delivery versus payment” basis on or before the Long Stop Date; provided that the Purchaser shall not be entitled to terminate this Agreement pursuant to this Clause 5.4(iii) if Purchaser’s breach of this Agreement has prevented or materially delayed the consummation of the Transactions.
(iv) By the Seller (if the Seller is not in material breach of the Seller Warranties, covenants or agreements under this Agreement so as to cause any of the conditions set forth in Clause 3.2 and/or 3.3(i) not to be satisfied), upon written notice to the Purchaser, if there has been a material inaccuracy of any statement or warranty, or any unremedied material breach of a covenant or other agreement, of the Purchaser contained in this Agreement, which violation, breach or inaccuracy would cause any of the conditions set forth in Clause 3.1 and/or 3.3 not to be satisfied as of the Completion DateCCASS, and such violation, breach or inaccuracy has not been waived by the Seller or cured by the Purchaser within 20 (twenty) Business Days after receipt by the Purchaser of written notice thereof from the Seller or is not reasonably capable of being cured prior to the Long Stop Date.
(v) By the Purchaser (if the Purchaser is not in material breach evidence shall constitute good and full discharge of the Purchaser Warranties, covenants or agreements under this Agreement so as to cause any Buyer's obligations in respect of the conditions set forth in Clause 3.1 and/or 3.3 not to be satisfied), upon written notice to the Seller, if there has been a material inaccuracy of any statement or warranty, or any unremedied material breach of a covenant or other agreement, payment of the Seller contained in this Agreement, which violation, breach or inaccuracy would cause any of the conditions set forth in Clauses 3.2 and/or 3.3(i) not to be satisfied as of the Completion Date, and such violation, breach or inaccuracy has not been waived by the Purchaser or cured by the Seller within 20 (twenty) Business Days after receipt by the Seller of written notice thereof from the Purchaser or is not reasonably capable of being cured prior to the Long Stop Date.
(vi) By the Seller or the Purchaser, upon written notice to the other, if a court of competent jurisdiction or any other Governmental Authority shall have issued a final, non-appealable order preventing or otherwise prohibiting the consummation of the Transactions.
5.5. If this Agreement is terminated prior to Completion in accordance with Clause 5.4 above,
(i) this Agreement shall become void and of no further force and effect; provided, however, that the provisions of this Clause 5.5 and Clauses 1 (Definitions and Interpretation), 11 (Announcements and Confidentiality), 12 (Notices), 13 (Governing Law, Disputes and Jurisdiction), 14.1 (Entire Agreement), 14.6 (Variation), 14.7 (No Assignment), 14.8 (Waiver), 14.9 (Severability), 14.10 (Supersession) and 14.11 (Expenses) shall survive the termination of this Agreement indefinitely and that nothing herein shall relieve any Party from any liability for fraud or any breach of the provisions of this Agreement prior to such terminationConsideration; and
(ii) if applicable, the Observer shall no longer be entitled 5.4.2 deliver to attend the meetings each of the Board (or any committee thereof) and the nominees Sellers a copy of the Purchaser appointed on bought note(s) in respect of the Board in accordance with Clause 6.2 shall resign with immediate effectrelevant Sale Shares duly executed by the Buyer.
Appears in 1 contract
Sources: Share Purchase Agreement
Completion. 5.1. Subject to the conditions set out in Clauses 3.1, 3.2 and 3.3, 5.1 Completion under this Agreement shall take place on the Completion Date.
5.2. The obligations of each of the Parties under Clause 5.3 below are interdependent of each other. The Completion shall not occur unless within ten (10) Business Days after all of the obligations specified conditions referred to in Clause 5.3, 2.2 have been simultaneously complied with satisfied, at such location and are fully effectiveat such time as the Parties may agree.
5.3. 5.2 On the Completion Date:
(i) Subject to deductions pursuant to Clause 4.4Date all, the Purchaser shall remit the Purchase Consideration (in immediately available funds) to the Seller’s Bank Account.
(ii) The Seller shall (a) provide to its Depository Participant duly executed DP Instructions in the prescribed form for the transfer but not part only, of the Sale Shares to the Demat Account of the Purchaser (details of which shall be provided to the Seller in writing as soon as practicable after the Execution Date); (b) procure its Depository Participant to duly acknowledge such DP Instructions; (c) deliver a copy of such acknowledgement to the Purchaser; and (d) use best endeavours to procure credit of the Sale Shares to the Demat Account of the Purchaser.
(iii) The Seller shall, to the extent it is able to do so through exercise of its voting rights, procure that a Board meeting is held at which the following business shall be transacted:
5.2.1 The Seller shall deliver to the Buyer (a) to the appointment extent not already delivered prior to Completion and/or already in the possession of the Buyer):
5.2.1.1 the Assignment Documents duly and validly executed by all the signatory parties thereto other than the Buyer;
5.2.1.2 a copy of the Secretary’s Consents and all other relevant consents, approvals or waivers, if any, referred to in Clause 2.2 and obtained by or on behalf of the Seller;
5.2.1.3 a copy, certified as a true copy and in full force and effect by a director or the secretary of the Seller, of a resolution of the board of directors nominated by of the Purchaser Seller authorising a person or persons to execute this Agreement and the Assignment Documents on behalf of the Board shall be approvedSeller; and
(b) an extra-ordinary general meeting of the shareholders of the Company to approve the matters set out 5.2.1.4 written confirmation in Clause 5.3(iii)(a) and the amendment of the Articles of Association shall be convened.
5.4. This Agreement may be terminated on or prior terms satisfactory to the Completion Date as follows:
(i) By the mutual written consent of the Purchaser and the Seller.
(ii) By the Seller, upon written notice to the Purchaser, if the conditions set out in Clauses 3.1 and 3.3 have not been satisfied (or satisfied subject only to Completion where applicable) or waived (where applicable) on or before 270 (two hundred seventy) days from the Execution Date or such later date as may be mutually agreed between the Parties in writing (“Long Stop Date”); provided Buyer that the Seller shall not be entitled has notified to terminate this Agreement pursuant to this Clause 5.4(ii) if Seller’s breach of this Agreement has prevented or materially delayed the consummation relevant insurers the interest of the Transactions (which term for Buyer in all property, assets and rights associated with the purposes Option Interests and the Licensed Interest Documents.
5.2.2 The Buyer shall:
5.2.2.1 pay to the Seller the sums specified in the Interim Completion Statement, subject to Clause 3.11, by means of this Clause 5.4(ii) shall not include the Financing);
(iii) By the Purchaser, upon written notice telegraphic transfer in immediately available funds to the Seller’s Account for value in Sterling on the Completion Date;
5.2.2.2 deliver to the Seller the Assignment Documents duly and validly executed by the Buyer;
5.2.2.3 deliver to the Seller a copy of all relevant consents, approvals, or waivers, if any, referred to in Clause 2.2 and obtained by or on behalf of the conditions set out Buyer; and
5.2.2.4 deliver to the Seller a copy, certified as a true copy and in Clauses 3.2 full force and 3.3 have not been satisfied (effect by a director or satisfied subject only the secretary of the Buyer, of a resolution of the board of directors of the Buyer authorising a person or persons to Completion where applicable) or waived (where applicable) on or before the Long Stop Date; provided that the Purchaser shall not be entitled to terminate execute this Agreement pursuant to this Clause 5.4(iii) if Purchaser’s breach of this Agreement has prevented or materially delayed and the consummation Assignment Documents on behalf of the Transactions.
(iv) By Buyer; and the Seller (if Parties acknowledge and agree that all acts and transactions constituting Completion shall be regarded as a single transaction so that, at the Seller is not in material breach option of the Seller Warranties, covenants or agreements under this Agreement so as to cause any Party who is interested in the carrying out of the conditions set forth in Clause 3.2 and/or 3.3(i) not relevant act or transaction, no action or transaction shall be deemed to be satisfied), upon written notice to the Purchaser, if there has been a material inaccuracy of any statement or warranty, or any unremedied material breach of a covenant or have taken place unless and until all other agreement, of the Purchaser contained actions and transactions constituting Completion shall have taken place as provided in this Agreement, which violation, breach or inaccuracy would cause any . The Parties acknowledge the essential nature of this provision.
5.3 Each of the conditions set forth Parties shall and, if appropriate, shall ensure that its respective Affiliates shall execute such other documents and do all such other acts and things as may reasonably be required, in Clause 3.1 and/or 3.3 not order to be satisfied as effect the transfer of the Completion Date, and such violation, breach or inaccuracy has not been waived by the Seller or cured by the Purchaser within 20 (twenty) Business Days after receipt by the Purchaser of written notice thereof from the Seller or is not reasonably capable of being cured prior Option Interests to the Long Stop Date.
(v) By Buyer and to implement the Purchaser (if transactions contemplated hereunder and otherwise to carry out the Purchaser is not in material breach true intent of the Purchaser Warranties, covenants or agreements under this Agreement so as to cause any of the conditions set forth in Clause 3.1 and/or 3.3 not to be satisfied), upon written notice to the Seller, if there has been a material inaccuracy of any statement or warranty, or any unremedied material breach of a covenant or other agreement, of the Seller contained in this Agreement, which violation, breach or inaccuracy would cause any of the conditions set forth in Clauses 3.2 and/or 3.3(i) not to be satisfied as of the Completion Date, and such violation, breach or inaccuracy has not been waived by the Purchaser or cured by the Seller within 20 (twenty) Business Days after receipt by the Seller of written notice thereof from the Purchaser or is not reasonably capable of being cured prior to the Long Stop Date.
(vi) By the Seller or the Purchaser, upon written notice to the other, if a court of competent jurisdiction or any other Governmental Authority shall have issued a final, non-appealable order preventing or otherwise prohibiting the consummation of the Transactions.
5.5. If this Agreement is terminated prior to Completion in accordance with Clause 5.4 above,
(i) this Agreement shall become void and of no further force and effect; provided, however, that the provisions of this Clause 5.5 and Clauses 1 (Definitions and Interpretation), 11 (Announcements and Confidentiality), 12 (Notices), 13 (Governing Law, Disputes and Jurisdiction), 14.1 (Entire Agreement), 14.6 (Variation), 14.7 (No Assignment), 14.8 (Waiver), 14.9 (Severability), 14.10 (Supersession) and 14.11 (Expenses) shall survive the termination of this Agreement indefinitely and that nothing herein shall relieve any Party from any liability for fraud or any breach of the provisions of this Agreement prior to such termination; and
(ii) if applicable, the Observer shall no longer be entitled to attend the meetings of the Board (or any committee thereof) and the nominees of the Purchaser appointed on the Board in accordance with Clause 6.2 shall resign with immediate effect.
Appears in 1 contract
Completion. 5.1. Subject 7.1 Upon completion of the exploration program as required in Section 2.1, the Vendor will forthwith, and within 30 days, transfer 50% title to the conditions set out in Clauses 3.1, 3.2 and 3.3, Completion shall take place on the Completion Date.
5.2. The obligations of each of the Parties under Clause 5.3 below are interdependent of each other. The Completion shall not occur unless all of the obligations specified in Clause 5.3, have been simultaneously complied with and are fully effective.
5.3. On the Completion Date:
(i) Subject to deductions pursuant to Clause 4.4, the Purchaser shall remit the Purchase Consideration (in immediately available funds) to the Seller’s Bank Account.
(ii) The Seller shall (a) provide to its Depository Participant duly executed DP Instructions in the prescribed form for the transfer of the Sale Shares to the Demat Account of the Purchaser (details of which shall be provided to the Seller in writing as soon as practicable after the Execution Date); (b) procure its Depository Participant to duly acknowledge such DP Instructions; (c) deliver a copy of such acknowledgement Property to the Purchaser; and (d) use best endeavours to procure credit , free clear of the Sale Shares to the Demat Account of the Purchaserany liens, charges or encumbrances.
(iii) The Seller shall7.2 At the closing the Vendor will deliver, or cause to the extent it is able to do so through exercise of its voting rights, procure that a Board meeting is held at which the following business shall be transacteddelivered:
(a) Certified copies of such resolutions of the appointment shareholders and or directors or the Vendor as are required to be passed to authorize the execution delivery and implementation of directors nominated this Agreement and of all documents to be delivered by the Vendor pursuant thereto;
(b) All deeds of conveyance, bills of sale, transfers and assignments in form and content satisfactory to the Purchaser's counsel, appropriate to effectively vest a good and marketable title to the Property in the Purchaser on to the Board shall be approvedextent contemplated by this Agreement, and immediately registerable in all places where registration of such instruments is required; and
(bc) an extra-ordinary general meeting Duly executed releases of, or evidence to the reasonable satisfaction of the shareholders Purchaser as to the discharge of any and all liabilities which the Purchaser has not agreed to assume and which may be enforceable against any of the Company Property being purchased hereunder.
7.3 The Vendor will deliver to approve the matters set out in Clause 5.3(iii)(a) Purchaser an opinion from its legal counsel dated to the time of transfer, that the Purchaser has acquired good and marketable title to the amendment Property to the extent contemplated by this Agreement.
7.4 Upon the completion of the Articles of Association shall be convenedexploration and bulk sample program, the Vendor and Purchaser hereby agree to enter into a Joint Venture Agreement, on standard industry terms.
5.4. This 7.5 The eventual Joint Venture Agreement may be terminated on or prior to the Completion Date as followswill:
(ia) By appoint the mutual written consent of Vendor as the Purchaser and Operator so long as the Seller.
(ii) By the Seller, upon written notice to the Purchaser, if the conditions set out in Clauses 3.1 and 3.3 have not been satisfied (or satisfied subject only to Completion where applicable) or waived (where applicable) on or before 270 (two hundred seventy) days from the Execution Date or such later date as may be mutually agreed between the Parties in writing (“Long Stop Date”); provided that the Seller shall not be entitled to terminate this Agreement pursuant to this Clause 5.4(ii) if Seller’s breach of this Agreement has prevented or materially delayed the consummation of the Transactions (which term for the purposes of this Clause 5.4(ii) shall not include the Financing)Vendor maintains a 50% interest;
(iiib) By the PurchaserOperator will charge a budgetary 10% Management Fee, upon written notice will propose annual budgets that must be mutually agreeable to the Sellerboth Parties, if the conditions set out in Clauses 3.2 and 3.3 have not been satisfied (or satisfied subject only referred to Completion where applicable) or waived (where applicable) on or before the Long Stop Date; provided a Budget Committee comprised of one nominee of each Party hereto, plus one nominee that the Purchaser shall not be entitled to terminate this Agreement pursuant to this Clause 5.4(iii) if Purchaser’s breach of this Agreement has prevented or materially delayed the consummation of the Transactions.is mutually appointed;
(ivc) By once approved the Seller annual budget must be mutually funded within 60 days;
(if the Seller is not d) will contain a dilution clause whereby failure by either party to fund their pro-rata portion of annual budgeted expenditures will result in material breach dilution of the Seller Warrantiesthat party's interest on a straight line formula using $500,000 as a 50% basis, covenants or agreements under this Agreement so as down to cause any of the conditions set forth in Clause 3.2 and/or 3.3(i) not to be satisfied), upon written notice to the Purchaser, if there has been a material inaccuracy of any statement or warranty, or any unremedied material breach minimum of a covenant or other agreement, of the Purchaser contained in this Agreement, which violation, breach or inaccuracy would cause any of the conditions set forth in Clause 3.1 and/or 3.3 not to be satisfied as of the Completion Date, and such violation, breach or inaccuracy has not been waived by the Seller or cured by the Purchaser within 20 (twenty) Business Days after receipt by the Purchaser of written notice thereof from the Seller or is not reasonably capable of being cured prior to the Long Stop Date1% industry standard Net Smelter Royalty Interest.
(v) By the Purchaser (if the Purchaser is not in material breach of the Purchaser Warranties, covenants or agreements under this Agreement so as to cause any of the conditions set forth in Clause 3.1 and/or 3.3 not to be satisfied), upon written notice to the Seller, if there has been a material inaccuracy of any statement or warranty, or any unremedied material breach of a covenant or other agreement, of the Seller contained in this Agreement, which violation, breach or inaccuracy would cause any of the conditions set forth in Clauses 3.2 and/or 3.3(i) not to be satisfied as of the Completion Date, and such violation, breach or inaccuracy has not been waived by the Purchaser or cured by the Seller within 20 (twenty) Business Days after receipt by the Seller of written notice thereof from the Purchaser or is not reasonably capable of being cured prior to the Long Stop Date.
(vi) By the Seller or the Purchaser, upon written notice to the other, if a court of competent jurisdiction or any other Governmental Authority shall have issued a final, non-appealable order preventing or otherwise prohibiting the consummation of the Transactions.
5.5. If this Agreement is terminated prior to Completion in accordance with Clause 5.4 above,
(i) this Agreement shall become void and of no further force and effect; provided, however, that the provisions of this Clause 5.5 and Clauses 1 (Definitions and Interpretation), 11 (Announcements and Confidentiality), 12 (Notices), 13 (Governing Law, Disputes and Jurisdiction), 14.1 (Entire Agreement), 14.6 (Variation), 14.7 (No Assignment), 14.8 (Waiver), 14.9 (Severability), 14.10 (Supersession) and 14.11 (Expenses) shall survive the termination of this Agreement indefinitely and that nothing herein shall relieve any Party from any liability for fraud or any breach of the provisions of this Agreement prior to such termination; and
(ii) if applicable, the Observer shall no longer be entitled to attend the meetings of the Board (or any committee thereof) and the nominees of the Purchaser appointed on the Board in accordance with Clause 6.2 shall resign with immediate effect.
Appears in 1 contract
Sources: Mineral Claims Option Agreement (Mosquito Consolidated Gold Mines LTD /Fi)
Completion. 5.1. Subject to the conditions set out in Clauses 3.1, 3.2 and 3.3, 4.1 Completion shall take place on the Completion Date at the offices of the Purchaser's Solicitors.
4.2 On Completion the Seller shall deliver to the Purchaser, at the principal office of the Business, or (if so requested by the Purchaser) make available to the Purchaser such of the Sale Assets as are capable of being transferred by delivery, together with:
4.2.1 the Promissory Note duly executed by the Seller;
4.2.2 the Debenture duly executed by the Seller;
4.2.3 the Business Records;
4.2.4 all Business Information;
4.2.5 copies of all National Insurance and PAYE records completed and up-to-date;
4.2.6 the original documents in the possession or control of the Seller in respect of the Contracts;
4.2.7 such documents as are reasonably required by the Purchaser to complete the sale and purchase of the Sale Assets and vest title to the Sale Assets in the Purchaser; and
4.3 On Completion ▇▇ ▇▇▇▇▇▇ shall deliver to the Purchaser's Solicitors:
4.3.1 the Service Agreement duly executed by ▇▇ ▇▇▇▇▇▇; and
4.3.2 the Guarantee duly executed by ▇▇ ▇▇▇▇▇▇ and DMD N.V..
4.4 If all or any of the transactions set out in Clauses 4.2 and 4.3 do not take place as provided, the Purchaser may promptly rescind this Agreement without prejudice to any other remedy it may have.
4.5 The Purchaser shall then deliver to ▇▇ ▇▇▇▇▇▇ the Service Agreement duly executed by it.
4.6 Rights in and title to the Sale Assets shall pass to the Purchaser on the Completion Date.
5.2. The obligations of each of the Parties under Clause 5.3 below are interdependent of each other. The Completion shall not occur unless all of the obligations specified in Clause 5.3, have been simultaneously complied with and are fully effective.
5.3. On the Completion Date:
(i) 4.7 Subject to deductions pursuant to Clause 4.4, 9 (Contracts and Third Party Consents) the Purchaser shall remit the Purchase Consideration (in immediately available funds) to the Seller’s Bank Account.
(ii) The Seller shall (a) provide to its Depository Participant duly executed DP Instructions in the prescribed form for the transfer of the Sale Shares to the Demat Account of the Purchaser (details of which shall be provided to the Seller in writing at Completion or as soon as practicable after the Execution Date); (b) procure its Depository Participant to duly acknowledge such DP Instructions; (c) Completion deliver a copy of such acknowledgement to the Purchaser; Purchaser all transfers, assignments and novations of those Sale Assets which are not capable of being transferred by delivery, together with all relevant documents of title.
4.8 The Seller shall (d) and shall use best its reasonable endeavours to procure credit any third party as is necessary to) after the date of the Sale Shares to the Demat Account of the Purchaser.
(iii) The Seller shall, to the extent it is able to do so through exercise of its voting rights, procure that a Board meeting is held at which the following business shall be transacted:
(a) the appointment of directors nominated by the Purchaser on the Board shall be approved; and
(b) an extra-ordinary general meeting of the shareholders of the Company to approve the matters set out in Clause 5.3(iii)(a) and the amendment of the Articles of Association shall be convened.
5.4. This Agreement may be terminated on or prior to the Completion Date as follows:
(i) By the mutual written consent of the Purchaser and the Seller.
(ii) By the Sellerthis Agreement, upon written notice to reasonable request by the Purchaser, if execute and perform any further deeds, documents and acts so requested to give full effect to the conditions set out in Clauses 3.1 and 3.3 have not been satisfied (or satisfied subject only to Completion where applicable) or waived (where applicable) on or before 270 (two hundred seventy) days from the Execution Date or such later date as may be mutually agreed between the Parties in writing (“Long Stop Date”); provided that the Seller shall not be entitled to terminate this Agreement pursuant to this Clause 5.4(ii) if Seller’s breach terms of this Agreement has prevented or materially delayed including (without limitation) to vest in and assure to the consummation of Purchaser whatever right, title and interest the Transactions (Seller may have in the Sale Assets and pending which term shall hold such Sale Assets on trust for the Purchaser absolutely and will dispose, transfer and deal with such Sale Assets at such time and in such manner as the Purchaser directs.
4.9 The parties shall upon reasonable request afford to each other and to each party's representatives such access during normal business hours to the statutory and accounting records and all other documents relating to the Business as are in each party's control for the purposes of this Clause 5.4(ii) inspecting and copying the same, and neither party shall not include use any such records, documents or the Financing);
(iii) By the Purchaser, upon written notice to the Seller, if the conditions set out in Clauses 3.2 and 3.3 have not been satisfied (or satisfied subject only to Completion where applicable) or waived (where applicable) on or before the Long Stop Date; provided that the Purchaser shall not be entitled to terminate this Agreement pursuant to this Clause 5.4(iii) if Purchaser’s breach of this Agreement has prevented or materially delayed the consummation of the Transactions.
(iv) By the Seller (if the Seller is not in material breach of the Seller Warranties, covenants or agreements under this Agreement so as to cause any of the conditions set forth in Clause 3.2 and/or 3.3(i) not to be satisfied), upon written notice to the Purchaser, if there has been a material inaccuracy of any statement or warranty, or any unremedied material breach of a covenant or other agreement, of the Purchaser information contained in this Agreementthem for any purpose other than for accounting, which violationaudit and tax purposes. Each party shall keep such records, breach or inaccuracy would cause any of the conditions set forth documents and information in Clause 3.1 and/or 3.3 not to be satisfied as of the Completion Date, and such violation, breach or inaccuracy has not been waived by the Seller or cured by the Purchaser within 20 (twenty) Business Days after receipt by the Purchaser of written notice thereof from the Seller or is not reasonably capable of being cured prior to the Long Stop Datestrict confidence.
(v) By the Purchaser (if the Purchaser is not in material breach of the Purchaser Warranties, covenants or agreements under this Agreement so as to cause any of the conditions set forth in Clause 3.1 and/or 3.3 not to be satisfied), upon written notice to the Seller, if there has been a material inaccuracy of any statement or warranty, or any unremedied material breach of a covenant or other agreement, of the Seller contained in this Agreement, which violation, breach or inaccuracy would cause any of the conditions set forth in Clauses 3.2 and/or 3.3(i) not to be satisfied as of the Completion Date, and such violation, breach or inaccuracy has not been waived by the Purchaser or cured by the Seller within 20 (twenty) Business Days after receipt by the Seller of written notice thereof from the Purchaser or is not reasonably capable of being cured prior to the Long Stop Date.
(vi) By the Seller or the Purchaser, upon written notice to the other, if a court of competent jurisdiction or any other Governmental Authority shall have issued a final, non-appealable order preventing or otherwise prohibiting the consummation of the Transactions.
5.5. If this Agreement is terminated prior to Completion in accordance with Clause 5.4 above,
(i) this Agreement shall become void and of no further force and effect; provided, however, that the provisions of this Clause 5.5 and Clauses 1 (Definitions and Interpretation), 11 (Announcements and Confidentiality), 12 (Notices), 13 (Governing Law, Disputes and Jurisdiction), 14.1 (Entire Agreement), 14.6 (Variation), 14.7 (No Assignment), 14.8 (Waiver), 14.9 (Severability), 14.10 (Supersession) and 14.11 (Expenses) shall survive the termination of this Agreement indefinitely and that nothing herein shall relieve any Party from any liability for fraud or any breach of the provisions of this Agreement prior to such termination; and
(ii) if applicable, the Observer shall no longer be entitled to attend the meetings of the Board (or any committee thereof) and the nominees of the Purchaser appointed on the Board in accordance with Clause 6.2 shall resign with immediate effect.
Appears in 1 contract
Sources: Agreement for the Sale of the Seller's Business and Assets (Dental Medical Diagnostic Systems Inc)
Completion. 5.1. Subject to the conditions set out in Clauses 3.1, 3.2 and 3.3, Completion This Share Purchase Agreement shall take place on the Completion Date.
5.2. The obligations of each of the Parties under Clause 5.3 below are interdependent of each other. The Completion shall not occur unless all of the obligations specified in Clause 5.3, have been be completed simultaneously complied with and are fully effective.
5.3(Zug um Zug). On the Completion DateDate the Parties shall undertake the actions set forth below and/or procure that such actions will be undertaken:
4.4.1 SIX Swiss shall enter into a transfer agreement with NewCo, which has been incorporated and registered in the commercial register in sufficient time prior to that date, pursuant to the principles set forth in Clause 1.4 unless it has already done so prior to Completion. On the Completion Date the Seller, in its capacity as sole shareholder, shall resolve in an extraordinary general meeting of SIX Swiss to be held on the same day that the NewCo Shares shall be distributed to the Seller as a dividend in kind.
4.4.2 The Purchaser shall pay the Purchase Price pursuant to Clause 3.4 to the Seller. If, and to the extent, the Purchaser exercises its right to offer alternative performance pursuant to Clause 3.2, the Purchaser shall deliver to the Seller a declaration of assignment in the form provided for in Annex 4.4.2 regarding the assignment of the HoldCo Shares, or its own DBAG Shares (as the case may be) by the Purchaser to the Seller.
4.4.3 The Seller shall deliver to the Purchaser:
(i) Subject a declaration of assignment regarding the assignment of the Seller Shares by the Seller to deductions pursuant to Clause 4.4, the Purchaser shall remit in the Purchase Consideration (form provided for in immediately available funds) to the Seller’s Bank Account.Annex 4.4.3(i),
(ii) The Seller shall (a) provide to its Depository Participant duly executed DP Instructions a legally valid resolution by the board of directors of Eurex Zürich regarding the unconditional approval of the spin-off of the Eurex Shares from SIX Swiss into NewCo and the corresponding registration of NewCo in the prescribed form for share register of Eurex Zürich,
(iii) a legally valid resolution by the board of directors of NewCo regarding the unconditional approval of the transfer of the Sale NewCo Shares to the Demat Account of the Purchaser (details of which shall be provided from SIX Swiss to the Seller in writing as soon as practicable after and the Execution Date); (b) procure its Depository Participant to duly acknowledge such DP Instructions; (c) deliver a copy of such acknowledgement to the Purchaser; and (d) use best endeavours to procure credit corresponding registration of the Sale Shares to Seller in the Demat Account share register of NewCo,
(iv) a legally valid resolution by the board of directors of NewCo regarding the unconditional approval of the Purchaser.
(iii) The Seller shall, to the extent it is able to do so through exercise of its voting rights, procure that a Board meeting is held at which the following business shall be transacted:
(a) the appointment of directors nominated by the Purchaser on the Board shall be approved; and
(b) an extra-ordinary general meeting transfer of the shareholders of NewCo Shares from the Company Seller to approve the matters set out in Clause 5.3(iii)(a) and the amendment of the Articles of Association shall be convened.
5.4. This Agreement may be terminated on or prior to the Completion Date as follows:
(i) By the mutual written consent of the Purchaser and the Seller.
(ii) By the Seller, upon written notice to the Purchaser, if the conditions set out in Clauses 3.1 and 3.3 have not been satisfied (or satisfied subject only to Completion where applicable) or waived (where applicable) on or before 270 (two hundred seventy) days from the Execution Date or such later date as may be mutually agreed between the Parties in writing (“Long Stop Date”); provided that the Seller shall not be entitled to terminate this Agreement pursuant to this Clause 5.4(ii) if Seller’s breach of this Agreement has prevented or materially delayed the consummation of the Transactions (which term for the purposes of this Clause 5.4(ii) shall not include the Financing);
(iii) By the Purchaser, upon written notice to the Seller, if the conditions set out in Clauses 3.2 and 3.3 have not been satisfied (or satisfied subject only to Completion where applicable) or waived (where applicable) on or before the Long Stop Date; provided that the Purchaser shall not be entitled to terminate this Agreement pursuant to this Clause 5.4(iii) if Purchaser’s breach of this Agreement has prevented or materially delayed the consummation of the Transactions.
(iv) By the Seller (if the Seller is not in material breach of the Seller Warranties, covenants or agreements under this Agreement so as to cause any of the conditions set forth in Clause 3.2 and/or 3.3(i) not to be satisfied), upon written notice to the Purchaser, if there has been a material inaccuracy of any statement or warranty, or any unremedied material breach of a covenant or other agreement, corresponding registration of the Purchaser contained in this Agreement, which violation, breach or inaccuracy would cause any the share register of the conditions set forth in Clause 3.1 and/or 3.3 not to be satisfied as of the Completion Date, and such violation, breach or inaccuracy has not been waived by the Seller or cured by the Purchaser within 20 (twenty) Business Days after receipt by the Purchaser of written notice thereof from the Seller or is not reasonably capable of being cured prior to the Long Stop Date.NewCo,
(v) By the Purchaser (if share registers of Eurex Zürich and NewCo which have been updated accordingly. The Seller shall be responsible for ensuring that the Purchaser is not in material breach resolutions by the board of the Purchaser Warranties, covenants or agreements under this Agreement so directors of NewCo as to cause any of the conditions set forth provided for in Clause 3.1 and/or 3.3 not to 4.4.3 (iii) and (iv) will be satisfied), upon written notice to the Seller, if there has been adopted in a material inaccuracy of any statement or warranty, or any unremedied material breach of a covenant or other agreement, of the Seller contained in this Agreement, which violation, breach or inaccuracy would cause any of the conditions set forth in Clauses 3.2 and/or 3.3(i) not to be satisfied as of the Completion Date, and such violation, breach or inaccuracy has not been waived by the Purchaser or cured by the Seller within 20 (twenty) Business Days after receipt by the Seller of written notice thereof from the Purchaser or is not reasonably capable of being cured prior to the Long Stop Datelegally valid form.
4.4.4 The spun-off Shareholders’ Agreement between SIX Swiss (vi) By the Seller or the Purchaser, upon written notice to the other, if a court of competent jurisdiction or any other Governmental Authority shall have issued a final, non-appealable order preventing or otherwise prohibiting the consummation of the Transactions.
5.5. If this Agreement is terminated prior to Completion in accordance with Clause 5.4 above,
(i) this Agreement shall become void and of no further force and effect; provided, however, that the provisions of this Clause 5.5 and Clauses 1 (Definitions and Interpretation), 11 (Announcements and Confidentiality), 12 (Notices), 13 (Governing Law, Disputes and Jurisdiction), 14.1 (Entire Agreement), 14.6 (Variation), 14.7 (No Assignment), 14.8 (Waiver), 14.9 (Severability), 14.10 (Supersession) and 14.11 (Expenses) shall survive the termination of this Agreement indefinitely and that nothing herein shall relieve any Party from any liability for fraud or any breach of the provisions of this Agreement prior to such termination; and
(ii) if applicable, the Observer shall no longer be entitled to attend the meetings of the Board (or any committee thereofpreviously Schweizer Börse) and the nominees Purchaser pertaining to their joint participation in Eurex Zürich and its subsidiaries shall be terminated in relation to SIX Swiss, which will be replaced by NewCo, upon execution of the Purchaser appointed on the Board change of parties agreement substantially in accordance with Clause 6.2 shall resign with immediate effect.the
Appears in 1 contract
Sources: Share Purchase Agreement (Alpha Beta Netherlands Holding N.V.)
Completion. 5.1. Subject Completion of the sale and purchase of the Shares shall take place at the offices of the Purchaser’s Solicitors immediately after signature and exchange of this agreement (‘the Completion Date’) when and where the matters referred to in clauses 4.1 to 4.4 shall be carried out:
4.1 The Vendors shall deliver to the conditions Purchaser:
4.1.1 transfers of the Shares duly executed by the registered holders in favour of the Purchaser (or as it in writing directs), accompanied by their respective share certificates, in such form as is necessary for the Purchaser to establish legal ownership in accordance with English law;
4.1.2 the share certificate in respect of 1,500 shares of common stock, representing all of the outstanding equity shares of the Subsidiary;
4.1.3 the certificates of incorporation, statutory books (including minute books) and all books of account and other records of the Company and the Subsidiary complete and (where appropriate) written up to date immediately prior to the Completion Date;
4.1.4 the title deeds to the Properties and all ancillary documents, together with confirmation of the lost title deeds indemnity insurance cover in the agreed amount;
4.1.5 the resignation of each of the existing directors and secretary of the Company and of the Subsidiary, with a written acknowledgement, waiver and release from each (executed as a deed in the Agreed Form) that he has no claim whatever against ISS, the Company, the Subsidiary or their respective Affiliates, whether in respect of compensation for loss of office, damages, pensions, loans or otherwise, and whether under any agreement to which he is a party (excluding any usual salary, other remuneration, benefits and any expenses due and payable by the Company to such directors and secretary under their current service agreements with the Company);
4.1.6 a Tax Deed in the form set out in Clauses 3.1Schedule 5, 3.2 duly executed by each of the Vendors, the Company and 3.3the Subsidiary;
4.1.7 statements from the Company’s and the Subsidiary’s bankers as to the current and deposit account balances of the Company and of the Subsidiary covering the period from 1 June 2010 through the close of business on the last Business Day preceding Completion;
4.1.8 appropriate forms to amend the mandates given by the Company and the Subsidiary to its bankers;
4.1.9 written confirmation from the Vendors in the Agreed Form that there are no subsisting guarantees given by the Company or the Subsidiary in their favour and that, after compliance with clause 4.3.2, there will remain no debt outstanding between the Vendors or their Affiliates and the Company;
4.1.10 appropriate certified resolutions of the Company and the Subsidiary authorising execution of this agreement, the Tax Deed and any other ancillary documentation required to be executed by such companies in the Agreed Form;
4.1.11 original certificates in respect of the Registered IPR;
4.1.12 evidence (in the Agreed Form) of the release from any and all Incumbrances created by the Company or the Subsidiary, or to which any of their assets is subject, or (as appropriate) certificates of non-crystallisation;
4.1.13 the Disclosure Letter duly executed by the Vendors;
4.1.14 the Lock-Up Agreements duly executed by the Vendors;
4.1.15 the Shareholder Representation Agreements duly executed by the Vendors; and
4.1.16 the Escrow Agreement duly executed by the Vendors.
4.2 The Vendors will procure that a board meeting of the Company and of the Subsidiary shall be held at which:
4.2.1 those persons nominated and designated by the Purchaser shall be appointed as directors, secretary and as other officers of the Company and the Subsidiary;
4.2.2 the resignations of the directors and officers referred to in clause 4.1.5 shall be submitted and accepted;
4.2.3 the transfers of the Shares (subject to stamping) shall be approved for registration;
4.2.4 the existing bank mandates given by the Company and the Subsidiary shall be cancelled; and
4.2.5 the registered offices of the Company and the Subsidiary shall be changed as the Purchaser may direct.
4.3 The Purchaser and/or ISS shall:
4.3.1 pay by a telegraphic transfer of funds from Purchaser’s Solicitors’ bank account to the Vendors’ Solicitors’ bank account in respect of that part of the Purchase Price as is payable in cash, to and in favour of the Vendors’ Solicitors (whose receipt shall be a full discharge to the Purchaser and ISS);
4.3.2 procure that the Company repay to the Second Vendor the Vendor’s Loan within 10 Business Days of the Completion Date;
4.3.3 deliver to the Vendors the Disclosure Letter duly executed by the Purchaser and ISS;
4.3.4 deliver to the Vendors the Escrow Agreement duly executed by the Purchaser and ISS;
4.3.5 deliver to the Vendors a certified copy of resolutions of the board of directors of the Purchaser:
4.3.5.1 approving the Transactions; and
4.3.5.2 authorising the directors of the Purchaser to take any and all steps necessary to complete this agreement.
4.4 ISS shall take place deliver certificates evidencing the Consideration Shares to the Escrow Agent for deposit in the Escrow Account under the terms of the Escrow Agreement.
4.5 If the provisions of clauses 4.1 through 4.3 are not complied with in any respect on the Completion Date.
5.2. The obligations of each of the Parties under Clause 5.3 below are interdependent of each other. The Completion shall not occur unless all of the obligations specified in Clause 5.3, have been simultaneously complied with and are fully effective.
5.3. On the Completion Date:
(i) Subject to deductions pursuant to Clause 4.4, the Purchaser shall remit the Purchase Consideration (may, in immediately available funds) its discretion, and without prejudice to the Seller’s Bank Account.
(ii) The Seller shall (a) provide to its Depository Participant duly executed DP Instructions in the prescribed form for the transfer of the Sale Shares to the Demat Account of the Purchaser (details of which shall be provided to the Seller in writing as soon as practicable after the Execution Date); (b) procure its Depository Participant to duly acknowledge such DP Instructions; (c) deliver a copy of such acknowledgement to the Purchaser; and (d) use best endeavours to procure credit of the Sale Shares to the Demat Account of the Purchaser.
(iii) The Seller shall, to the extent any other rights it is able to do so through exercise of its voting rights, procure that a Board meeting is held at which the following business shall be transactedhas under this agreement or otherwise:
(a) the appointment of directors nominated by the Purchaser on the Board shall be approved; and
(b) an extra-ordinary general meeting of the shareholders of the Company 4.5.1 defer Completion to approve the matters set out in Clause 5.3(iii)(a) and the amendment of the Articles of Association shall be convened.
5.4. This Agreement may be terminated on or prior to a date not more than 28 days after the Completion Date as follows:
(i) By the mutual written consent of the Purchaser and the Seller.
(ii) By the Seller, upon written notice to the Purchaser, if the conditions set out in Clauses 3.1 and 3.3 have not been satisfied (or satisfied subject only to Completion where applicable) or waived (where applicable) on or before 270 (two hundred seventy) days from the Execution Date or such later date as may be mutually agreed between the Parties in writing (“Long Stop Date”); provided that the Seller shall not be entitled to terminate this Agreement pursuant to this Clause 5.4(ii) if Seller’s breach of this Agreement has prevented or materially delayed the consummation of the Transactions (which term for the purposes of this Clause 5.4(ii) shall not include the Financing);
(iii) By the Purchaser, upon written notice to the Seller, if the conditions set out in Clauses 3.2 and 3.3 have not been satisfied (or satisfied subject only to Completion where applicable) or waived (where applicable) on or before the Long Stop Date; provided that the Purchaser shall not be entitled to terminate this Agreement pursuant to this Clause 5.4(iii) if Purchaser’s breach of this Agreement has prevented or materially delayed the consummation of the Transactions.
(iv) By the Seller (if the Seller is not in material breach of the Seller Warranties, covenants or agreements under this Agreement so as to cause any of the conditions set forth in Clause 3.2 and/or 3.3(i) not to be satisfied), upon written notice to the Purchaser, if there has been a material inaccuracy of any statement or warranty, or any unremedied material breach of a covenant or other agreement, of the Purchaser contained in this Agreement, which violation, breach or inaccuracy would cause any of the conditions set forth in Clause 3.1 and/or 3.3 not to be satisfied as of the Completion Date, and such violation, breach or inaccuracy has not been waived by the Seller or cured by the Purchaser within 20 (twenty) Business Days after receipt by the Purchaser of written notice thereof from the Seller or is not reasonably capable of being cured prior to the Long Stop Date.
(v) By the Purchaser (if the Purchaser is not in material breach of the Purchaser Warranties, covenants or agreements under this Agreement so as to cause any of the conditions set forth in Clause 3.1 and/or 3.3 not to be satisfied), upon written notice to the Seller, if there has been a material inaccuracy of any statement or warranty, or any unremedied material breach of a covenant or other agreement, of the Seller contained in this Agreement, which violation, breach or inaccuracy would cause any of the conditions set forth in Clauses 3.2 and/or 3.3(i) not to be satisfied as of the Completion Date, and such violation, breach or inaccuracy has not been waived by the Purchaser or cured by the Seller within 20 (twenty) Business Days after receipt by the Seller of written notice thereof from the Purchaser or is not reasonably capable of being cured prior to the Long Stop Date.
(vi) By the Seller or the Purchaser, upon written notice to the other, if a court of competent jurisdiction or any other Governmental Authority shall have issued a final, non-appealable order preventing or otherwise prohibiting the consummation of the Transactions.
5.5. If this Agreement is terminated prior to Completion in accordance with Clause 5.4 above,
(i) this Agreement shall become void and of no further force and effect; provided, however, that case the provisions of clauses 4.1 through 4.5 shall apply to Completion as so deferred); or
4.5.2 proceed to Completion so far as practicable; or
4.5.3 terminate this Clause 5.5 and Clauses 1 (Definitions and Interpretation), 11 (Announcements and Confidentiality), 12 (Notices), 13 (Governing Law, Disputes and Jurisdiction), 14.1 (Entire Agreement), 14.6 (Variation), 14.7 (No Assignment), 14.8 (Waiver), 14.9 (Severability), 14.10 (Supersession) and 14.11 (Expenses) shall survive the termination of this Agreement indefinitely and that nothing herein shall relieve any Party from agreement without incurring any liability for fraud to the Vendors or any breach of the provisions of this Agreement prior to such termination; and
(ii) if applicable, the Observer shall no longer be entitled to attend the meetings of the Board (or any committee thereof) and the nominees of the Purchaser appointed on the Board in accordance with Clause 6.2 shall resign with immediate effectthem.
Appears in 1 contract
Sources: Share Purchase Agreement (Image Sensing Systems Inc)
Completion. 5.1. 5.1 Subject to the conditions set out Condition in Clauses 3.1Clause 4.1 being completed (or waived by the Parties), 3.2 and 3.3, Completion completion shall take place on at [the Completion Date.
5.2. The obligations office of each Messrs. Johnson Stokes & Master] when all (but not part only) of the Parties under Clause 5.3 below are interdependent of each other. The Completion shall not occur unless all of the obligations specified in Clause 5.3, have been simultaneously complied with and are fully effective.
5.3. On the Completion Date:
(i) Subject to deductions pursuant to Clause 4.4, the Purchaser shall remit the Purchase Consideration (in immediately available funds) to the Seller’s Bank Account.
(ii) The Seller shall (a) provide to its Depository Participant duly executed DP Instructions in the prescribed form for the transfer of the Sale Shares to the Demat Account of the Purchaser (details of which f▇▇▇▇▇▇▇g ▇▇▇▇▇ess shall be provided to the Seller in writing as soon as practicable after the Execution Date); (b) procure its Depository Participant to duly acknowledge such DP Instructions; (c) deliver a copy of such acknowledgement to the Purchaser; and (d) use best endeavours to procure credit of the Sale Shares to the Demat Account of the Purchaser.
(iii) The Seller shall, to the extent it is able to do so through exercise of its voting rights, procure that a Board meeting is held at which the following business shall be transacted:transacted:-
(a) the appointment of directors nominated by Seller shall deliver to the Purchaser on or procure the Board shall delivery to the Purchaser of:-
(i) duly executed share transfer instruments (in a form complying with all applicable laws) in respect of the Sale Shares in favour of the Purchaser and/or its nominees together with the relative certificates therefor;
(ii) such other documents as may be approvedrequired to give good title to the Sale Shares or which may be necessary to enable the Purchaser or its nominees to procure the registration of the same in the name of the Purchaser or its nominees; and
(biii) an extra-ordinary general meeting evidence of the shareholders due authority of the Company to approve the matters set out in Clause 5.3(iii)(a) and the amendment any person signing any instrument or document on behalf of the Articles of Association shall be convened.
5.4. This Agreement may be terminated on or prior to the Completion Date as follows:
(i) By the mutual written consent of the Purchaser and the Seller.
(iib) By the Seller, upon written notice to the Purchaser, if the conditions set out in Clauses 3.1 and 3.3 have not been satisfied (or satisfied subject only to Completion where applicable) or waived (where applicable) on or before 270 (two hundred seventy) days from the Execution Date or such later date as may be mutually agreed between the Parties in writing (“Long Stop Date”); provided that the Seller shall not procure a duly convened and held meeting of the board of directors of the Company [and of each other member of the Target Group] is held at which resolutions shall be entitled passed (where appropriate):-
(i) to terminate approve this Agreement pursuant and give effect to this Clause 5.4(ii) if Seller’s breach of this Agreement has prevented or materially delayed the consummation all of the Transactions transactions contemplated hereunder;
(which term ii) to approve (subject to stamping, where necessary) the Purchaser and its nominees for registration as the holders of the Sale Shares; and
(iii) to deal with and resolve upon such other matters as the Purchaser shall reasonably require for the purposes of this Clause 5.4(ii) shall not include the Financing);
(iii) By the Purchaser, upon written notice giving effect to the Seller, if the conditions set out in Clauses 3.2 and 3.3 have not been satisfied (or satisfied subject only to Completion where applicable) or waived (where applicable) on or before the Long Stop Date; provided that the Purchaser shall not be entitled to terminate this Agreement pursuant to this Clause 5.4(iii) if Purchaser’s breach of this Agreement has prevented or materially delayed the consummation of the Transactions.
(iv) By the Seller (if the Seller is not in material breach of the Seller Warranties, covenants or agreements under this Agreement so as to cause any of the conditions set forth in Clause 3.2 and/or 3.3(i) not to be satisfied), upon written notice to the Purchaser, if there has been a material inaccuracy of any statement or warranty, or any unremedied material breach of a covenant or other agreement, of the Purchaser contained in this Agreement, which violation, breach or inaccuracy would cause any of the conditions set forth in Clause 3.1 and/or 3.3 not to be satisfied as of the Completion Date, and such violation, breach or inaccuracy has not been waived by the Seller or cured by the Purchaser within 20 (twenty) Business Days after receipt by the Purchaser of written notice thereof from the Seller or is not reasonably capable of being cured prior to the Long Stop Date.
(v) By the Purchaser (if the Purchaser is not in material breach of the Purchaser Warranties, covenants or agreements under this Agreement so as to cause any of the conditions set forth in Clause 3.1 and/or 3.3 not to be satisfied), upon written notice to the Seller, if there has been a material inaccuracy of any statement or warranty, or any unremedied material breach of a covenant or other agreement, of the Seller contained in this Agreement, which violation, breach or inaccuracy would cause any of the conditions set forth in Clauses 3.2 and/or 3.3(i) not to be satisfied as of the Completion Date, and such violation, breach or inaccuracy has not been waived by the Purchaser or cured by the Seller within 20 (twenty) Business Days after receipt by the Seller of written notice thereof from the Purchaser or is not reasonably capable of being cured prior to the Long Stop Date.
(vi) By the Seller or the Purchaser, upon written notice to the other, if a court of competent jurisdiction or any other Governmental Authority shall have issued a final, non-appealable order preventing or otherwise prohibiting the consummation of the Transactions.
5.5. If this Agreement is terminated prior to Completion in accordance with Clause 5.4 above,
(i) this Agreement shall become void and of no further force and effect; provided, however, that the provisions of this Clause 5.5 Agreement.
(c) at a duly convened and Clauses 1 (Definitions and Interpretation), 11 (Announcements and Confidentiality), 12 (Notices), 13 (Governing Law, Disputes and Jurisdiction), 14.1 (Entire Agreement), 14.6 (Variation), 14.7 (No Assignment), 14.8 (Waiver), 14.9 (Severability), 14.10 (Supersession) and 14.11 (Expenses) shall survive the termination of this Agreement indefinitely and that nothing herein shall relieve any Party from any liability for fraud or any breach held meeting of the provisions board of this Agreement prior to such termination; and
(ii) if applicable, the Observer shall no longer be entitled to attend the meetings of the Board (or any committee thereof) and the nominees directors of the Purchaser appointed on the Board Consideration Shares shall be allotted to the Seller or such persons as it shall direct, credited as fully paid up.
5.2 As soon as practicable following Completion, the Purchaser shall deliver to the Seller share certificate(s) in accordance respect of the Consideration Shares together with a copy of the resolutions of the board of directors of the Purchaser authorising the allotment and issue of the Consideration Shares.
5.3 No Party shall be obliged to complete this Agreement or perform any obligations hereunder unless the other parties comply fully with the requirements of Clause 6.2 shall resign with immediate effect5.
Appears in 1 contract
Completion. 5.1. Subject 3.1 Immediately after signing this Agreement, the Parties shall, so far as they are each able, take or procure the following steps in the following order:
3.1.1 the allotment to the conditions set out Shareholders of:
3.1.1.1 1090 ‘A’ Shares to CMT, in Clauses 3.1addition to the 10 subscriber’s shares already held by it;
3.1.1.2 900 ‘B’ Shares to the Private Shareholders in the following proportions: to CKW - 711 ‘B’ Shares to DA - 189 ‘B’ Shares in each case on payment at par of the relevant subscription moneys;
3.1.2 the appointment of CKW to the Board, in addition to ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ (already appointed as nominee of CMT);
3.1.3 the signing by the Company and CKW of the Service Contract;
3.1.4 the appointment of ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ as Company Secretary;
3.2 and 3.3, Completion shall take place on the Completion Date.
5.2. The obligations of each Each of the Parties hereby waives any rights of pre-emption or similar in relation to the Shares that may exist under Clause 5.3 below are interdependent of each other. The Completion shall not occur unless all the Articles or otherwise and by signing this Agreement the Parties confirm their acceptance of the obligations specified in allotment of Shares anticipated by Clause 5.3, have been simultaneously complied with and are fully effective3.
5.3. On the Completion Date:
3.3 The Parties agree that further ‘B’ Shares may be issued from time to time to any person whose role (iwhether as employee, consultant or otherwise) Subject to deductions pursuant to Clause 4.4, the Purchaser shall remit the Purchase Consideration (in immediately available funds) to the Seller’s Bank Account.
(ii) The Seller shall (a) provide to its Depository Participant duly executed DP Instructions in the prescribed form for the transfer unanimous opinion of the Sale Directors may reasonably be regarded as important in the Company’s business or as part of an employee share option scheme provided always:-
3.3.1 that no more than 105 ‘B’ Shares to the Demat Account of the Purchaser (details of which shall be provided to the Seller in writing as soon as practicable after the Execution Date); (b) procure its Depository Participant to duly acknowledge such DP Instructions; (c) deliver a copy of such acknowledgement to the Purchaser; and (d) use best endeavours to procure credit of the Sale Shares to the Demat Account of the Purchaser.
(iii) The Seller shall, to the extent it is able to do so through exercise of its voting rights, procure that a Board meeting is held at which the following business shall be transacted:
(a) the appointment of directors nominated by the Purchaser on the Board shall be approved; and
(b) an extra-ordinary general meeting of the shareholders of the Company to approve the matters set out in Clause 5.3(iii)(a) and the amendment of the Articles of Association shall be convened.
5.4. This Agreement aggregate may be terminated on or prior to the Completion Date as follows:
(i) By the mutual written consent of the Purchaser and the Seller.
(ii) By the Seller, upon written notice to the Purchaser, if the conditions set out in Clauses 3.1 and 3.3 have not been satisfied (or satisfied subject only to Completion where applicable) or waived (where applicable) on or before 270 (two hundred seventy) days from the Execution Date or such later date as may be mutually agreed between the Parties in writing (“Long Stop Date”); provided that the Seller shall not be entitled to terminate this Agreement issued pursuant to this Clause 5.4(iiwithout an 80% majority of the Shareholders; and
3.3.2 that all such ‘B’ Shares shall only be issued and allotted on terms accepted in writing by the allottee (a) if Seller’s breach that he enters into a deed of adherence agreeing to be bound by the terms of this Agreement has prevented and (b) that, in the case of an employee or materially delayed the consummation of the Transactions (which term consultant working for the purposes Company if he ceases at any time to be remunerated by the Company (otherwise than in the case of long-term illness or, with prior Board approval, if taking sabbatical leave, when this Clause 5.4(ii) provision shall not include the Financing);
(iiiapply) By the Purchaser, upon written notice then all Shares held by that allottee shall be offered back to the Seller, if Company or to the conditions set out in Clauses 3.2 and 3.3 have not been satisfied other Shareholders (or satisfied subject only to Completion where applicable) or waived (where applicable) on or before as the Long Stop Date; provided that the Purchaser Board shall not be entitled to terminate this Agreement pursuant to this Clause 5.4(iii) if Purchaser’s breach of this Agreement has prevented or materially delayed the consummation of the Transactions.
(iv) By the Seller (if the Seller is not in material breach of the Seller Warranties, covenants or agreements under this Agreement so as to cause any of the conditions set forth in Clause 3.2 and/or 3.3(i) not to be satisfieddetermine), upon written notice to in the Purchaser, if there has been a material inaccuracy case of any statement or warranty, or any unremedied material breach of a covenant or other agreement, of the Purchaser contained in this Agreement, which violation, breach or inaccuracy would cause any of the conditions set forth in Clause 3.1 and/or 3.3 not to be satisfied as of the Completion Date, and such violation, breach or inaccuracy has not been waived anyone whose employment is lawfully terminated by the Seller or cured Company on the ground of misconduct at the lower of par and the price certified by the Purchaser within 20 (twenty) Business Days after receipt by the Purchaser of written notice thereof from the Seller or is not reasonably capable of being cured prior to the Long Stop Date.
(v) By the Purchaser (if the Purchaser is not in material breach of the Purchaser Warranties, covenants or agreements under this Agreement so as to cause any of the conditions set forth in Clause 3.1 and/or 3.3 not to be satisfied), upon written notice to the Seller, if there has been a material inaccuracy of any statement or warranty, or any unremedied material breach of a covenant or other agreement, of the Seller contained in this Agreement, which violation, breach or inaccuracy would cause any of the conditions set forth in Clauses 3.2 and/or 3.3(i) not to be satisfied as of the Completion Date, and such violation, breach or inaccuracy has not been waived by the Purchaser or cured by the Seller within 20 (twenty) Business Days after receipt by the Seller of written notice thereof from the Purchaser or is not reasonably capable of being cured prior to the Long Stop Date.
(vi) By the Seller or the Purchaser, upon written notice to the other, if a court of competent jurisdiction or any other Governmental Authority shall have issued a final, non-appealable order preventing or otherwise prohibiting the consummation of the Transactions.
5.5. If this Agreement is terminated prior to Completion Accountant in accordance with Clause 5.4 above,
(i) this Agreement shall become void and of no further force and effect; provided, however, that the provisions of this Clause 5.5 and Clauses 1 (Definitions and Interpretation)clause 15 or, 11 (Announcements and Confidentiality)in any other case, 12 (Notices), 13 (Governing Law, Disputes and Jurisdiction), 14.1 (Entire Agreement), 14.6 (Variation), 14.7 (No Assignment), 14.8 (Waiver), 14.9 (Severability), 14.10 (Supersession) and 14.11 (Expenses) shall survive at the termination of this Agreement indefinitely and that nothing herein shall relieve any Party from any liability for fraud or any breach of said price certified by the provisions of this Agreement prior to such termination; and
(ii) if applicable, the Observer shall no longer be entitled to attend the meetings of the Board (or any committee thereof) and the nominees of the Purchaser appointed on the Board in accordance with Clause 6.2 shall resign with immediate effectAccountant.
Appears in 1 contract
Completion. 5.1. Subject to 4.1 Completion of the conditions set out in Clauses 3.1, 3.2 sale and 3.3, Completion purchase of the Vessel shall take place on the Completion Date.
5.2. The obligations of each of the Parties under Clause 5.3 below are interdependent of each other. The Completion shall not occur unless all of the obligations specified in Clause 5.3, have been simultaneously complied with and are fully effective.
5.3. On Date at the Completion Date:
(i) Subject to deductions pursuant to Clause 4.4, the Purchaser shall remit the Purchase Consideration (in immediately available funds) to the Seller’s Bank Account.
(ii) The Seller shall (a) provide to its Depository Participant duly executed DP Instructions in the prescribed form for the transfer of the Sale Shares to the Demat Account of the Purchaser (details of which shall be provided to the Seller in writing as soon as practicable after the Execution Date); (b) procure its Depository Participant to duly acknowledge such DP Instructions; (c) deliver a copy of such acknowledgement to the Purchaser; and (d) use best endeavours to procure credit of the Sale Shares to the Demat Account of the Purchaser.
(iii) The Seller shall, to the extent it is able to do so through exercise of its voting rights, procure that a Board meeting is held at which the following business shall be transacted:Venue when:-
(a) the appointment of directors nominated by the Purchaser on the Board shall be approved; and
(b) an extra-ordinary general meeting of the shareholders of the Company to approve the matters set out in Clause 5.3(iii)(a) and the amendment of the Articles of Association shall be convened.
5.4. This Agreement may be terminated on or prior to the Completion Date as follows:Buyer shall:-
(i) By deliver to the mutual written consent Seller a copy, certified as a true and up to date copy by an officer of the Purchaser and Buyer, of a resolution of the Seller.
(ii) By Board of Directors of the Seller, upon written notice to the Purchaser, if the conditions set out in Clauses 3.1 and 3.3 have not been satisfied (or satisfied subject only to Completion where applicable) or waived (where applicable) on or before 270 (two hundred seventy) days from the Execution Date or such later date as may be mutually agreed between the Parties in writing (“Long Stop Date”); provided that the Seller shall not be entitled to terminate this Agreement pursuant to this Clause 5.4(ii) if Seller’s breach Buyer evidencing approval of this Agreement has prevented or materially delayed the consummation and all obligations of the Transactions (which term Buyer hereunder, authorising the appropriate representive to execute and deliver this Agreement, the Mortgages, the Deeds of Covenant, the Completion Documents and such other documentation as shall be necessary in connection with the transaction contemplated hereby and to give all notices and take all other action on behalf of the Buyer under or for the purposes of this Clause 5.4(iiAgreement;
(ii) shall not include deliver to the Financing)Seller the Deeds of Covenant, duly and validly executed;
(iii) By the Purchaser, upon written notice deliver to the SellerSeller the Mortgages duly and validly executed;
(iv) deliver to the Seller the Parent Company Guarantees and Opinion Letters, if duly and validly executed;
(v) pay that part of the conditions set out Consideration payable to the Seller terms of Clause 3.
1.1 in Clauses 3.2 and 3.3 have not been satisfied accordance with Clause 4.4;
(or satisfied subject only b) the Seller shall:-
(i) deliver to Completion where applicable) or waived (where applicable) on or before the Long Stop Date; provided Buyer a certificate signed by the Company Secretary of the Buyer that the Purchaser shall not be entitled to terminate this Agreement pursuant to this Clause 5.4(iii) if Purchaser’s breach transaction contemplated in terms of this Agreement has prevented or materially delayed been duly authorised;
(ii) deliver to the consummation Buyer the Bill of Sale duly and validly ▇▇▇▇uted;
(iii) table the Transactions.Completion Documents duly and validly executed by all parties thereto other than the Parties;
(iv) By the Seller (if the Seller is not deliver interim confirmation of class in material breach of the Seller Warranties, covenants or agreements under this Agreement so as to cause any of the conditions set forth in Clause 3.2 and/or 3.3(i) not to be satisfied), upon written notice relation to the Purchaser, if there has been a material inaccuracy of any statement or warranty, or any unremedied material breach of a covenant or other agreement, of the Purchaser contained in this Agreement, which violation, breach or inaccuracy would cause any of the conditions set forth in Clause 3.1 and/or 3.3 not to be satisfied as of the Completion Date, and such violation, breach or inaccuracy has not been waived by the Seller or cured by the Purchaser Vessel issued within 20 seventy two (twenty72) Business Days after receipt by the Purchaser of written notice thereof from the Seller or is not reasonably capable of being cured hours prior to the Long Stop Date.Delivery;
(v) By deliver the Purchaser (if the Purchaser is not in material breach current certificate of British Registry of the Purchaser Warranties, covenants or agreements under this Agreement so as to cause any of the conditions set forth in Clause 3.1 and/or 3.3 not to be satisfied), upon written notice to the Seller, if there has been a material inaccuracy of any statement or warranty, or any unremedied material breach of a covenant or other agreement, of the Seller contained in this Agreement, which violation, breach or inaccuracy would cause any of the conditions set forth in Clauses 3.2 and/or 3.3(i) not to be satisfied as of the Completion Date, and such violation, breach or inaccuracy has not been waived by the Purchaser or cured by the Seller within 20 (twenty) Business Days after receipt by the Seller of written notice thereof from the Purchaser or is not reasonably capable of being cured prior to the Long Stop Date.vessel;
(vi) By deliver the Vessel to the Buyer,
(vii) deliver to the Buyer a Power of Attorney granted by the Seller or the Purchaser, upon written notice in favour of certain of its employees in relation to the other, if a court execution of competent jurisdiction or any other Governmental Authority shall have issued a final, non-appealable order preventing or otherwise prohibiting this Agreement and all documentation to be executed by the consummation Seller pursuant to the provisions of this Agreement;
(viii) deliver to the TransactionsBuyer the United Kingdom Certificate of Fitness in relation to the Vessel;
(ix) deliver to the Buyer the International Oil Pollution Prevention Certificate in relation to the Vessel.
5.5. If this Agreement is terminated prior to Completion in accordance with Clause 5.4 above,(c) the Parties shall:-
(i) this Agreement shall become void execute and of no further force and effect; provided, however, that deliver the provisions of this Clause 5.5 and Clauses 1 (Definitions and Interpretation), 11 (Announcements and Confidentiality), 12 (Notices), 13 (Governing Law, Disputes and Jurisdiction), 14.1 (Entire Agreement), 14.6 (Variation), 14.7 (No Assignment), 14.8 (Waiver), 14.9 (Severability), 14.10 (Supersession) and 14.11 (Expenses) shall survive the termination of this Agreement indefinitely and that nothing herein shall relieve any Party from any liability for fraud or any breach of the provisions of this Agreement prior to such termination; andCompletion Documents;
(ii) if applicableexecute and deliver the Protocol of Delivery and Acceptance.
4.2 Delivery shall be deemed to take place at the Time of Delivery and Acceptance and, subject to this Clause 4.2, the Observer Vessel shall no longer be entitled deemed to attend have been delivered by the meetings Seller to the Buyer at the location at which she is situate at the Time of Delivery and Acceptance. Delivery of all Equipment forming part of the Board Vessel and all Owners' Data in each case which is not on board the Vessel shall be made by the Buyer collecting (or any committee thereofat the Buyer's cost and risk) the same from the premises at which they are currently held and following Completion the nominees Buyer shall indemnify the Seller against the costs of storage of such items in the period following Completion.
4.3 Immediately following Completion the Buyer shall deliver to the Seller the duly executed Bill of Sale, declaration of eligibility and ▇ cheque for the recording dues of such documents at the Registry of Shipping and Seamen, PO Box 165, Cardiff, CF4 5FU ("the Regis▇▇▇") ▇▇▇ ▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇s the Buyer's agent shall within two (2) Business Days of the Purchaser appointed Completion Date procure the delivery thereof to the Registry.
4.4 Payment of each instalment of the Consideration shall be properly made and received on the Board date upon which it becomes payable in accordance with terms of Clause 6.2 3.1 or 3.2 on or before 1 pm London Time in US Dollars for same day value to the Seller's Account.
4.5 The Parties shall resign with immediate effectprocure that as soon as reasonably practicable following the Time of Delivery and Acceptance the volume of unused fuel and lubricating oil kept in storage tanks and sealed drums on board the Vessel shall be measured and agreed between the Parties. The Buyer shall take over the remaining bunkers and unused lubricating oils in storage tanks and sealed drums at no cost.
Appears in 1 contract
Completion. 5.14.1. Subject to the conditions set out in Clauses 3.1, 3.2 and 3.3, Completion shall take place on the Completion Date at the offices of the Purchaser's Solicitors.
4.2. On Completion the Seller shall deliver to the Purchaser, at the principal office of the Business, or (if so requested by the Purchaser) make available to the Purchaser such of the Sale Assets as are capable of being transferred by delivery, together with:
4.2.1. the Business Records;
4.2.2. all Business Information;
4.2.3. copies of all National Insurance and PAYE records completed and up-to-date;
4.2.4. the original documents in the possession or control of the Seller in respect of the Contracts; and
4.2.5. such documents as are reasonably required by the Purchaser to complete the sale and purchase of the Sale Assets and vest title to the Sale Assets in the Purchaser.
4.3. On Completion Mr Nahab shall deliver to the Pu▇▇▇▇▇▇▇'s Solicitors the Service Agreement duly executed by Mr Nahab.
4.4. If all or any o▇ ▇▇▇ ▇▇ansactions set out in Clauses 4.2 and 4..3 do not take place as provided, the Purchaser may promptly rescind this Agreement without prejudice to any other remedy it may have.
4.5. The Purchaser shall then deliver to Mr Nahab the Service Agreement d▇▇▇ executed by it.
4.6. Rights in and title to the Sale Assets shall pass to the Purchaser on the Completion Date.
5.24.7. The obligations of each of the Parties under Clause 5.3 below are interdependent of each other. The Completion shall not occur unless all of the obligations specified in Clause 5.3, have been simultaneously complied with and are fully effective.
5.3. On the Completion Date:
(i) Subject to deductions pursuant to Clause 4.4, 9 (Contracts and Third Party Consents) the Purchaser shall remit the Purchase Consideration (in immediately available funds) to the Seller’s Bank Account.
(ii) The Seller shall (a) provide to its Depository Participant duly executed DP Instructions in the prescribed form for the transfer of the Sale Shares to the Demat Account of the Purchaser (details of which shall be provided to the Seller in writing at Completion or as soon as practicable after the Execution Date); (b) procure its Depository Participant to duly acknowledge such DP Instructions; (c) Completion deliver a copy of such acknowledgement to the Purchaser; Purchaser all transfers, assignments and novations of those Sale Assets which are not capable of being transferred by delivery, together with all relevant documents of title.
4.8. The Seller shall (d) and shall use best its reasonable endeavours to procure credit any third party as is necessary to) after the date of the Sale Shares to the Demat Account of the Purchaser.
(iii) The Seller shall, to the extent it is able to do so through exercise of its voting rights, procure that a Board meeting is held at which the following business shall be transacted:
(a) the appointment of directors nominated by the Purchaser on the Board shall be approved; and
(b) an extra-ordinary general meeting of the shareholders of the Company to approve the matters set out in Clause 5.3(iii)(a) and the amendment of the Articles of Association shall be convened.
5.4. This Agreement may be terminated on or prior to the Completion Date as follows:
(i) By the mutual written consent of the Purchaser and the Seller.
(ii) By the Sellerthis Agreement, upon written notice to reasonable request by the Purchaser, if execute and perform any further deeds, documents and acts so requested to give full effect to the conditions set out in Clauses 3.1 and 3.3 have not been satisfied (or satisfied subject only to Completion where applicable) or waived (where applicable) on or before 270 (two hundred seventy) days from the Execution Date or such later date as may be mutually agreed between the Parties in writing (“Long Stop Date”); provided that the Seller shall not be entitled to terminate this Agreement pursuant to this Clause 5.4(ii) if Seller’s breach terms of this Agreement has prevented or materially delayed including (without limitation) to vest in and assure to the consummation of Purchaser whatever right, title and interest the Transactions (Seller may have in the Sale Assets and pending which term shall hold such Sale Assets on trust for the Purchaser absolutely and will dispose, transfer and deal with such Sale Assets at such time and in such manner as the Purchaser directs.
4.9. The parties shall upon reasonable request afford to each other and to each party's representatives such access during normal business hours to the statutory and accounting records and all other documents relating to the Business as are in each party's control for the purposes of this Clause 5.4(ii) inspecting and copying the same, and neither party shall not include use any such records, documents or the Financing);
(iii) By the Purchaser, upon written notice to the Seller, if the conditions set out in Clauses 3.2 and 3.3 have not been satisfied (or satisfied subject only to Completion where applicable) or waived (where applicable) on or before the Long Stop Date; provided that the Purchaser shall not be entitled to terminate this Agreement pursuant to this Clause 5.4(iii) if Purchaser’s breach of this Agreement has prevented or materially delayed the consummation of the Transactions.
(iv) By the Seller (if the Seller is not in material breach of the Seller Warranties, covenants or agreements under this Agreement so as to cause any of the conditions set forth in Clause 3.2 and/or 3.3(i) not to be satisfied), upon written notice to the Purchaser, if there has been a material inaccuracy of any statement or warranty, or any unremedied material breach of a covenant or other agreement, of the Purchaser information contained in this Agreementthem for any purpose other than for accounting, which violationaudit and tax purposes. Each party shall keep such records, breach or inaccuracy would cause any of the conditions set forth documents and information in Clause 3.1 and/or 3.3 not to be satisfied as of the Completion Date, and such violation, breach or inaccuracy has not been waived by the Seller or cured by the Purchaser within 20 (twenty) Business Days after receipt by the Purchaser of written notice thereof from the Seller or is not reasonably capable of being cured prior to the Long Stop Datestrict confidence.
(v) By the Purchaser (if the Purchaser is not in material breach of the Purchaser Warranties, covenants or agreements under this Agreement so as to cause any of the conditions set forth in Clause 3.1 and/or 3.3 not to be satisfied), upon written notice to the Seller, if there has been a material inaccuracy of any statement or warranty, or any unremedied material breach of a covenant or other agreement, of the Seller contained in this Agreement, which violation, breach or inaccuracy would cause any of the conditions set forth in Clauses 3.2 and/or 3.3(i) not to be satisfied as of the Completion Date, and such violation, breach or inaccuracy has not been waived by the Purchaser or cured by the Seller within 20 (twenty) Business Days after receipt by the Seller of written notice thereof from the Purchaser or is not reasonably capable of being cured prior to the Long Stop Date.
(vi) By the Seller or the Purchaser, upon written notice to the other, if a court of competent jurisdiction or any other Governmental Authority shall have issued a final, non-appealable order preventing or otherwise prohibiting the consummation of the Transactions.
5.5. If this Agreement is terminated prior to Completion in accordance with Clause 5.4 above,
(i) this Agreement shall become void and of no further force and effect; provided, however, that the provisions of this Clause 5.5 and Clauses 1 (Definitions and Interpretation), 11 (Announcements and Confidentiality), 12 (Notices), 13 (Governing Law, Disputes and Jurisdiction), 14.1 (Entire Agreement), 14.6 (Variation), 14.7 (No Assignment), 14.8 (Waiver), 14.9 (Severability), 14.10 (Supersession) and 14.11 (Expenses) shall survive the termination of this Agreement indefinitely and that nothing herein shall relieve any Party from any liability for fraud or any breach of the provisions of this Agreement prior to such termination; and
(ii) if applicable, the Observer shall no longer be entitled to attend the meetings of the Board (or any committee thereof) and the nominees of the Purchaser appointed on the Board in accordance with Clause 6.2 shall resign with immediate effect.
Appears in 1 contract
Sources: Agreement for the Sale of the Seller's Business and Assets (Dental Medical Diagnostic Systems Inc)
Completion. 5.1. Subject to 5.1 Upon fulfillment of all the conditions set out in Clauses 3.1, Clause 3.2 and 3.3(Conditions), Completion shall take place on the Completion Datedate falling on the third Business Day after the fulfillment of the conditions set out in Clause 3.2 (Conditions), or such other date as the Parties may agree, at such place as the Parties may agree when all the acts and requirements set out in this Clause 5, shall be complied with.
5.2. The obligations 5.2 At Completion, the Vendor shall deliver or cause to be delivered to the Purchaser and/or the Purchaser’s Guarantor (as the case may be):
(a) instrument of each transfer in respect of the Parties under Clause 5.3 below are interdependent of each other. The Completion shall not occur unless all transfer of the obligations specified Sale Shares duly executed by the Vendor in favour of the Purchaser (or its nominee);
(b) original share certificate(s) in respect of the Sale Share;
(c) copy, certified by a director of the Vendor, of resolutions of the board of directors of the Vendor approving this Agreement and the transactions contemplated hereunder and other documents necessary for the purpose of effecting this transaction and authorising a person or persons to execute the same (with seal, where appropriate) for and on its behalf;
(d) copy, certified by a director of the relevant Group Company, respectively, as true and complete, of the resolutions of the board of directors of the relevant Group Company referred to in Clause 5.3, have been simultaneously complied with and are fully effective; and
(e) the Deed of Set-Off duly executed under seal by the Vendor.
5.3. On 5.3 The Vendor shall use its reasonable endeavours to procure a meeting of the Completion Date:
(i) Subject board of directors of the Company to deductions pursuant to Clause 4.4, be held at which resolutions shall be passed for the Purchaser shall remit the Purchase Consideration (in immediately available funds) to the Seller’s Bank Account.
(ii) The Seller shall (a) provide to its Depository Participant duly executed DP Instructions in the prescribed form approval for the transfer of the Sale Shares to the Demat Account Purchaser (or its nominee) and the registration of such transfer, subject to the relevant instrument of transfer being duly presented for registration.
5.4 At Completion, the Purchaser (details of which shall be provided to the Seller in writing as soon as practicable after the Execution Date); (b) procure its Depository Participant to duly acknowledge such DP Instructions; (c) deliver a copy of such acknowledgement to the Purchaser; and (d) use best endeavours to procure credit of the Sale Shares to the Demat Account of the Purchaser.
(iii) The Seller shall, to the extent it is able to do so through exercise of its voting rights, procure that a Board meeting is held at which the following business shall be transacted:
(a) deliver to the appointment Vendor instrument of directors nominated transfer in respect of the Sale Shares duly executed by the Purchaser (or its nominee);
(b) deliver to the Vendor and the Purchaser’s Guarantor the Deed of Set-Off duly executed under seal by the Purchaser;
(c) deliver to the Vendor the Deed of Adherence duly executed under seal by the Purchaser;
(d) deliver to the Vendor the Irrevocable Undertaking duly executed under seal by the Purchaser; and
(e) deliver to the Vendor a copy, certified as true and complete by a director of the Purchaser, of resolutions of the board of directors of the Purchaser approving this Agreement and the transactions contemplated hereunder and other documents necessary for the purpose of effecting this transaction and authorising a person or persons to execute the same (with seal, where appropriate) for and on its behalf.
5.5 At Completion, the Board shall be approvedPurchaser’s Guarantor shall:
(a) deliver to the Vendor and the Purchaser the Deed of Set-Off duly executed by the Purchaser’s Guarantor; and
(b) an extra-ordinary general meeting of deliver to the shareholders of Vendor the Company to approve Irrevocable Undertaking duly executed under seal by the matters set out in Clause 5.3(iii)(a) and the amendment of the Articles of Association shall be convenedPurchaser’s Guarantor.
5.4. This Agreement may 5.6 In the event that the Vendor or the Purchaser shall fail to do anything required to be terminated on done by them under Clauses 5.2, 5.3, 5.4 and/or 5.5, without prejudice to any other right or prior remedy available to the Completion Date Vendor or the Purchaser (as followsthe case may be), the Vendor or the Purchaser (as the case may be) may:
(ia) By defer Completion to a day not more than 28 days after the date fixed for Completion, or upon mutual written consent of by the Vendor and the Purchaser;
(b) proceed to Completion so far as practicable but without prejudice to the Vendor’s or the Purchaser’s right (as the case may be) to the extent that the Vendor or the Purchaser and (as the Seller.
(ii) By the Seller, upon written notice to the Purchaser, if the conditions set out in Clauses 3.1 and 3.3 have not been satisfied (or satisfied subject only to Completion where applicable) or waived (where applicable) on or before 270 (two hundred seventy) days from the Execution Date or such later date as case may be mutually agreed between the Parties in writing (“Long Stop Date”); provided that the Seller shall not be entitled to terminate this Agreement pursuant to this Clause 5.4(ii) if Seller’s breach of this Agreement has prevented or materially delayed the consummation of the Transactions (which term for the purposes of this Clause 5.4(iibe) shall not include the Financing);have complied with their obligations hereunder; or
(iiic) By the Purchaser, upon written notice to the Seller, if the conditions set out in Clauses 3.2 and 3.3 have not been satisfied (or satisfied subject only to Completion where applicable) or waived (where applicable) on or before the Long Stop Date; provided that the Purchaser shall not be entitled to terminate this Agreement pursuant to this Clause 5.4(iii) if Purchaser’s breach of this Agreement has prevented or materially delayed the consummation of the Transactions.
(iv) By the Seller (if the Seller is not in material breach of the Seller Warranties, covenants or agreements under this Agreement so as to cause any of the conditions set forth in Clause 3.2 and/or 3.3(i) not to be satisfied), upon written notice to the Purchaser, if there has been a material inaccuracy of any statement or warranty, or any unremedied material breach of a covenant or other agreement, of the Purchaser contained in this Agreement, upon which violation, breach or inaccuracy would cause any of the conditions set forth in Clause 3.1 and/or 3.3 not to be satisfied as of the Completion Date, and such violation, breach or inaccuracy has not been waived by the Seller or cured by the Purchaser within 20 (twenty) Business Days after receipt by the Purchaser of written notice thereof from the Seller or is not reasonably capable of being cured prior to the Long Stop Date.
(v) By the Purchaser (if the Purchaser is not in material breach of the Purchaser Warranties, covenants or agreements under this Agreement so as to cause any of the conditions set forth in Clause 3.1 and/or 3.3 not to be satisfied), upon written notice to the Seller, if there has been a material inaccuracy of any statement or warranty, or any unremedied material breach of a covenant or other agreement, of the Seller contained in this Agreement, which violation, breach or inaccuracy would cause any of the conditions set forth in Clauses 3.2 and/or 3.3(i) not to be satisfied as of the Completion Date, and such violation, breach or inaccuracy has not been waived by the Purchaser or cured by the Seller within 20 (twenty) Business Days after receipt by the Seller of written notice thereof from the Purchaser or is not reasonably capable of being cured prior to the Long Stop Date.
(vi) By the Seller or the Purchaser, upon written notice to the other, if a court of competent jurisdiction or any other Governmental Authority shall have issued a final, non-appealable order preventing or otherwise prohibiting the consummation of the Transactions.
5.5. If this Agreement is terminated prior to Completion in accordance with Clause 5.4 above,
(i) this Agreement shall become void and cease to be of no further force and effect; provided, however, that the provisions of this Clause 5.5 and any effect except for Clauses 1 6 (Definitions and InterpretationRestriction on Announcements), 11 (Announcements and Confidentiality), 12 (Notices), 13 17 (Costs) and 20 (Governing Law, Disputes Law and Jurisdiction), 14.1 (Entire Agreement), 14.6 (Variation), 14.7 (No Assignment), 14.8 (Waiver), 14.9 (Severability), 14.10 (Supersession) which shall remain in force and 14.11 (Expenses) shall survive the termination save in respect of claims arising out of any antecedent breach of this Agreement indefinitely and that nothing herein shall relieve any Party from any liability for fraud or any breach of the provisions of this Agreement prior to such termination; and
(ii) if applicable, the Observer shall no longer be entitled to attend the meetings of the Board (or any committee thereof) and the nominees of the Purchaser appointed on the Board in accordance with Clause 6.2 shall resign with immediate effectAgreement.
Appears in 1 contract
Completion. 5.1. Subject to the conditions set out in Clauses 3.1, 3.2 and 3.3, 4.1 Completion shall take place on not later than _________________ (or such later date as the Parties may agree in writing) (“Completion Date”) and at such place as the Parties may agree when all (but not some only) of the events described in this Clause 4 shall occur.
5.2. The obligations of each of the Parties under Clause 5.3 below are interdependent of each other. The Completion shall not occur unless all of the obligations specified in Clause 5.3, have been simultaneously complied with and are fully effective.
5.3. On the Completion Date:
(i) Subject to deductions pursuant to Clause 4.4, the Purchaser shall remit the Purchase Consideration (in immediately available funds) to the Seller’s Bank Account.
(ii) The Seller shall (a) provide to its Depository Participant duly executed DP Instructions in the prescribed form for the transfer of the Sale Shares to the Demat Account of the Purchaser (details of which shall be provided to the Seller in writing as soon as practicable after the Execution Date); (b) procure its Depository Participant to duly acknowledge such DP Instructions; (c) deliver a copy of such acknowledgement to the Purchaser; and (d) use best endeavours to procure credit of the Sale Shares to the Demat Account of the Purchaser.
(iii) The Seller 4.2 Company shall, to the extent it is able to do so through exercise of its voting rights, procure that a Board meeting is held at which the following business shall be transacted:
(a) Allot and issue all the appointment of directors nominated by the Purchaser on the Board shall be approvedSubscription Shares credited as fully paid; and
(b) an extra-ordinary general meeting of the shareholders of the Company to approve the matters set out in Clause 5.3(iii)(a) and the amendment of the Articles of Association shall be convened.
5.4. This Agreement may be terminated on or prior deliver to the Completion Date as followsSubscriber:
(i) By the mutual written consent a certified true copy of the Purchaser resolutions of the Board approving and authorising the execution and completion and performance of the transactions contemplated under this Agreement and the Seller.issue of the Subscription Shares credited as fully paid to the Subscriber;
(ii) By a certified true copy of the Seller, upon written notice resolution of the Shareholders approving and authorising the directors of the Company to take all other steps required by the Company to allot and issue the Subscription Shares to the Purchaser, if the conditions set out in Clauses 3.1 and 3.3 have not been satisfied (or satisfied subject only to Completion where applicable) or waived (where applicable) on or before 270 (two hundred seventy) days from the Execution Date or such later date as may be mutually agreed between the Parties in writing (“Long Stop Date”); provided that the Seller shall not be entitled to terminate this Agreement Subscriber pursuant to this Clause 5.4(ii) if Seller’s breach of this Agreement has prevented or materially delayed the consummation of the Transactions (which term for the purposes of this Clause 5.4(ii) shall not include the Financing)Agreement;
(iii) By a certified true copy each of the Purchaserresolutions of the Board and Shareholders respectively, upon written notice approving and authorising the issue of ______________ ordinary shares of S$___________________ each or the Subscription Shares at the Subscription Price, whichever applicable and pursuant to the Seller, if the conditions set out in Clauses 3.2 and 3.3 have not been satisfied (or satisfied subject only to Completion where applicable) or waived (where applicable) on or before the Long Stop Date; provided that the Purchaser shall not be entitled to terminate this Subscription Agreement pursuant to this Clause 5.4(iii) if Purchaser’s breach of this Agreement has prevented or materially delayed the consummation of the Transactions.herein;
(iv) By a duly issued share certificate in the Seller (if the Seller is not in material breach name of the Seller Warranties, covenants or agreements under this Agreement so as to cause any Subscriber in respect of the conditions set forth in Clause 3.2 and/or 3.3(i) not to be satisfied), upon written notice to the Purchaser, if there has been a material inaccuracy of any statement or warranty, or any unremedied material breach of a covenant or other agreement, of the Purchaser contained in this Agreement, which violation, breach or inaccuracy would cause any of the conditions set forth in Clause 3.1 and/or 3.3 not to be satisfied as of the Completion Date, and such violation, breach or inaccuracy has not been waived by the Seller or cured by the Purchaser within 20 (twenty) Business Days after receipt by the Purchaser of written notice thereof from the Seller or is not reasonably capable of being cured prior to the Long Stop Date.Subscription Shares;
(v) By the Purchaser (if the Purchaser is not in material breach consents and waivers of the Purchaser Warranties, covenants or agreements under this Agreement so as to cause any Existing Shareholders of the conditions set forth Company of all rights of pre-emption and other rights which they may have in Clause 3.1 and/or 3.3 not to be satisfied), upon written notice to the Seller, if there has been a material inaccuracy of any statement or warranty, or any unremedied material breach of a covenant or other agreement, respect of the Seller contained issue of the Subscription Shares and other matters contemplated in this Agreement, which violation, breach or inaccuracy would cause any of the conditions set forth in Clauses 3.2 and/or 3.3(i) not to be satisfied as of the Completion Date, and such violation, breach or inaccuracy has not been waived by the Purchaser or cured by the Seller within 20 (twenty) Business Days after receipt by the Seller of written notice thereof from the Purchaser or is not reasonably capable of being cured prior to the Long Stop Date.
(vi) By the Seller or the Purchaser, upon written notice to the other, if a court of competent jurisdiction or any other Governmental Authority shall have issued a final, non-appealable order preventing or otherwise prohibiting the consummation of the Transactions.
5.5. If this Agreement is terminated prior to Completion in accordance with Clause 5.4 above,
(i) this Agreement shall become void and of no further force and effect; provided, however, that the provisions of this Clause 5.5 and Clauses 1 (Definitions and Interpretation), 11 (Announcements and Confidentiality), 12 (Notices), 13 (Governing Law, Disputes and Jurisdiction), 14.1 (Entire Agreement), 14.6 (Variation), 14.7 (No Assignment), 14.8 (Waiver), 14.9 (Severability), 14.10 (Supersession) and 14.11 (Expenses) shall survive the termination of this Agreement indefinitely and that nothing herein shall relieve any Party from any liability for fraud or any breach of the provisions of this Agreement prior to such termination; and
(ii) if applicable, the Observer shall no longer be entitled to attend the meetings of the Board (or any committee thereof) and the nominees of the Purchaser appointed on the Board in accordance with Clause 6.2 shall resign with immediate effect.;
Appears in 1 contract
Sources: Subscription Agreement (CytoMed Therapeutics Pte. Ltd.)
Completion. 5.1. Subject to Completion shall take place at the offices of the Investors’ Solicitors immediately upon the conditions set out in Clauses 3.1, 3.2 Clause 2.1(a) being satisfied or waived by the Investors (or such other place and 3.3, Completion time as the Company and the Investors may agree) when all of the following matters shall take place on (to the Completion Date.extent they have not taken place prior to Completion);
5.2. The obligations (a) the subscription by each of Atlas VI, Atlas VI KG and Atlas EF VI for an aggregate of 12,185 ‘A’ Shares at a price of EUR574.4768 per share (giving an aggregate subscription price of EUR6,999,999.81) (the number of shares to be subscribed by each of the Parties under Clause 5.3 below are interdependent Atlas entities being set out opposite its name in Part 3 of each other. The Completion Schedule 1), which subscription price shall not occur unless all be delivered to the Company in the form either of (i) a bank draft drawn in favour of the obligations specified in Clause 5.3Company or (ii) a telegraphic transfer to the Company’s bank account with Ulster Bank, have been simultaneously complied with and are fully effective.Sort Code: 98-50-10, Account Number ▇▇▇▇▇▇▇▇;
5.3. On (b) the Completion Dateexisting Directors shall hold a board meeting of the Company at which:
(i) Subject to deductions pursuant to the ‘A’ Shares subscribed by Atlas in accordance with Clause 4.4, the Purchaser 2.2(a) shall remit the Purchase Consideration (in immediately available funds) to the Seller’s Bank Account.be issued and allotted;
(ii) The Seller shall (a) provide to its Depository Participant duly executed DP Instructions in the prescribed form for the transfer of the Sale Shares to the Demat Account of the Purchaser (details of which ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇ shall be provided to appointed as the Seller in writing as soon as practicable after the Execution Date); (b) procure its Depository Participant to duly acknowledge such DP Instructions; (c) deliver a copy of such acknowledgement to the Purchaser; and (d) use best endeavours to procure credit of the Sale Shares to the Demat Account of the Purchaser.
(iii) The Seller shall, to the extent it is able to do so through exercise of its voting rights, procure that a Board meeting is held at which the following business shall be transacted:
(a) the appointment of directors nominated by the Purchaser on the Board shall be approved; and
(b) an extra-ordinary general meeting of the shareholders of the Company to approve the matters set out in Clause 5.3(iii)(a) and the amendment of the Articles of Association shall be convened.
5.4. This Agreement may be terminated on or prior to the Completion Date as follows:
(i) By the mutual written consent of the Purchaser and the Seller.
(ii) By the Seller, upon written notice to the Purchaser, if the conditions set out in Clauses 3.1 and 3.3 have not been satisfied (or satisfied subject only to Completion where applicable) or waived (where applicable) on or before 270 (two hundred seventy) days from the Execution Date or such later date as may be mutually agreed between the Parties in writing (“Long Stop Date”); provided that the Seller shall not be entitled to terminate this Agreement pursuant to this Clause 5.4(ii) if Seller’s breach of this Agreement has prevented or materially delayed the consummation of the Transactions (which term for the purposes of this Clause 5.4(ii) shall not include the Financing)Atlas Director;
(iii) By ▇▇▇▇▇▇ ▇▇▇▇▇ as the Purchaser, upon written notice to the Seller, if the conditions set out in Clauses 3.2 and 3.3 have not been satisfied (or satisfied subject only to Completion where applicable) or waived (where applicable) on or before the Long Stop Date; provided that the Purchaser shall not be entitled to terminate this Agreement pursuant to this Clause 5.4(iii) if Purchaser’s breach of this Agreement has prevented or materially delayed the consummation secretary of the Transactions.Company shall be instructed to write up the register of members of the Company to reflect the issue and subscription and payment referred to in Clause 2.2(a) and share certificates in respect of the ‘A’ Shares referred to in Clause 2.2(a) shall be issued in favour of and delivered to Atlas;
(iv) By the Seller (if the Seller is not in material breach following documents shall be approved and their execution on behalf of the Seller Warranties, covenants or agreements under this Agreement so as to cause any of Company be authorised:
(A) the conditions set forth in Clause 3.2 and/or 3.3(iAnti-Dilution Warrants; and Execution
(B) not to be satisfied), upon written notice to the Purchaser, if there has been a material inaccuracy of any statement or warranty, or any unremedied material breach of a covenant or other agreement, of the Purchaser contained in this Agreement, which violation, breach or inaccuracy would cause any of the conditions set forth in Clause 3.1 and/or 3.3 not to be satisfied as of the Completion Date, and such violation, breach or inaccuracy has not been waived by the Seller or cured by the Purchaser within 20 (twenty) Business Days after receipt by the Purchaser of written notice thereof from the Seller or is not reasonably capable of being cured prior to the Long Stop Date.Management Rights Letters;
(v) By any other matters shall be dealt with in order that the Purchaser (if the Purchaser is not in material breach details of the Purchaser Warranties, covenants or agreements under this Agreement so Company shall be as to cause any of set out in Schedule 2 Part 2;
(c) the conditions set forth in Clause 3.1 and/or 3.3 not to be satisfied), upon written notice Company shall sign and deliver the Anti-Dilution Warrants to the Seller, if there has been a material inaccuracy of any statement or warranty, or any unremedied material breach of a covenant or other agreement, of Investors and the Seller contained in this Agreement, which violation, breach or inaccuracy would cause any of the conditions set forth in Clauses 3.2 and/or 3.3(i) not Management Rights Letter to be satisfied as of the Completion Date, and such violation, breach or inaccuracy has not been waived by the Purchaser or cured by the Seller within 20 (twenty) Business Days after receipt by the Seller of written notice thereof from the Purchaser or is not reasonably capable of being cured prior to the Long Stop Date.
(vi) By the Seller or the Purchaser, upon written notice to the other, if a court of competent jurisdiction or any other Governmental Authority shall have issued a final, non-appealable order preventing or otherwise prohibiting the consummation of the Transactions.
5.5. If this Agreement is terminated prior to Completion in accordance with Clause 5.4 above,
(i) this Agreement shall become void and of no further force and effect; provided, however, that the provisions of this Clause 5.5 and Clauses 1 (Definitions and Interpretation), 11 (Announcements and Confidentiality), 12 (Notices), 13 (Governing Law, Disputes and Jurisdiction), 14.1 (Entire Agreement), 14.6 (Variation), 14.7 (No Assignment), 14.8 (Waiver), 14.9 (Severability), 14.10 (Supersession) and 14.11 (Expenses) shall survive the termination of this Agreement indefinitely and that nothing herein shall relieve any Party from any liability for fraud or any breach of the provisions of this Agreement prior to such terminationAtlas; and
(iid) if applicable, the Observer Company shall no longer be entitled to attend redeem the meetings Convertible Loan Notes by remitting the sum of US$609,750 plus any interest payable under the terms of the Board Convertible Loan Notes to Benchmark (or any committee thereof) and the nominees of the Purchaser appointed on the Board in accordance with Clause 6.2 as Benchmark shall resign with immediate effectdirect).
Appears in 1 contract
Completion. 5.1. Subject to 4.1 Unless otherwise agreed in writing by the conditions set out in Clauses 3.1, 3.2 and 3.3Parties, Completion shall will take place on the Completion Date.
5.2. The obligations of each second Business Day following the date that the Purchaser notifies the Seller that it is prepared to make payment of the Parties under Clause 5.3 below are interdependent of each other. The Purchase Price, provided, however, that Completion shall not occur unless all take place on a date that is later than the date that is 60 calendar days following the date of this Agreement (the obligations specified in Clause 5.3“Completion Date”). For the avoidance of doubt, it is understood and agreed that if the Purchase Price is not paid on or prior to the date that is 60 calendar days following the date of this Agreement, the Agreement shall terminate and be of no further effect and the Seller shall have been simultaneously complied with and are fully effectiveno obligation thereafter to sell or transfer the Sale Shares pursuant to this Agreement.
5.3. 4.2 On the Completion Date:
(i) Subject to deductions pursuant to Clause 4.4, the Purchaser shall remit the Purchase Consideration (in immediately available funds) to the Seller’s Bank Account.
(ii) The Seller shall (a) provide to its Depository Participant duly executed DP Instructions in the prescribed form for the transfer of the Sale Shares to the Demat Account of the Purchaser (details of which shall be provided to the Seller in writing as soon as practicable after the Execution Date); (b) procure its Depository Participant to duly acknowledge such DP Instructions; (c) deliver a copy of such acknowledgement to the Purchaser; and (d) use best endeavours to procure credit of the Sale Shares to the Demat Account of the Purchaser.
(iii) The Seller shall, to the extent it is able to do so through exercise of its voting rights, procure that a Board meeting is held at which the following business shall be transacted:
(a) cause to be delivered to the appointment Registered Agent (with a copy to Purchaser) (i) instruments of directors nominated by transfer in respect of the Purchaser on Sale Shares duly completed in favour of the Board shall be approvedPurchaser, in the form attached hereto as Schedule 1, (ii) an instruction letter in the form attached hereto as Schedule 2, and (iii) original stock certificate(s) representing the Sale Shares; and
(b) an extra-ordinary general meeting procure that the Registered Agent provides a certified copy of the shareholders register of members of the Company reflecting the Transaction to approve the matters set out in Clause 5.3(iii)(a) Purchaser and the amendment of Seller and such other persons as the Articles of Association shall be convenedPurchaser or the Seller may nominate.
5.4. This Agreement may be terminated on 4.3 On or prior to the Completion Date as follows:Date, the Purchaser shall pay the Purchase Price into the account of the Seller set forth in Schedule 3 (Seller's Account Details), by electronic transfer of funds for same day value.
(i) By 4.4 The obligation of each of the mutual written consent Seller and the Purchaser to perform each of the actions described in the foregoing provisions of this Clause 4 is deemed to be conditional on the performance by the Purchaser and the Seller.
(ii) By , respectively, of each of its obligations therein. If any of the foregoing provisions of this Clause 4 is not fully complied with, the Purchaser, in the case of non-compliance by the Seller, upon written notice to or the Seller in the case of non-compliance by the Purchaser, if the conditions set out in Clauses 3.1 and 3.3 have not been satisfied (or satisfied subject only to Completion where applicable) or waived (where applicable) on or before 270 (two hundred seventy) days from the Execution Date or such later date as may be mutually agreed between the Parties in writing (“Long Stop Date”); provided that the Seller shall not be entitled (in addition to terminate this Agreement pursuant and without prejudice to this Clause 5.4(iiall other rights or remedies available to it, including the right to claim damages) if Seller’s breach of this Agreement has prevented or materially delayed the consummation of the Transactions (which term for the purposes of this Clause 5.4(ii) shall not include the Financing);
(iii) By the Purchaser, upon written notice to the Seller, if the conditions set out in Clauses 3.2 and 3.3 have not been satisfied (or satisfied subject only to Completion where applicable) or waived (where applicable) on or before the Long Stop Date; provided that the Purchaser shall not be entitled to terminate this Agreement pursuant to this Clause 5.4(iii) if Purchaser’s breach of this Agreement has prevented or materially delayed the consummation of the Transactions.
(iv) By the Seller (if the Seller is not in material breach of the Seller Warranties, covenants or agreements under this Agreement so as to cause any of the conditions set forth in Clause 3.2 and/or 3.3(i) not to be satisfied), upon written notice to the Purchaser, if there has been a material inaccuracy of any statement or warranty, or any unremedied material breach of a covenant or other agreement, of the Purchaser contained in this Agreement, which violation, breach or inaccuracy would cause any of the conditions set forth in Clause 3.1 and/or 3.3 not to be satisfied as of the Completion Date, and such violation, breach or inaccuracy has not been waived by the Seller or cured by the Purchaser within 20 (twenty) Business Days after receipt by the Purchaser of written notice thereof from the Seller or is not reasonably capable of being cured prior to the Long Stop Date.
(v) By the Purchaser (if the Purchaser is not in material breach of the Purchaser Warranties, covenants or agreements under this Agreement so as to cause any of the conditions set forth in Clause 3.1 and/or 3.3 not to be satisfied), upon written notice to the Seller, if there has been a material inaccuracy of any statement or warranty, or any unremedied material breach of a covenant or other agreement, of the Seller contained in this Agreement, which violation, breach or inaccuracy would cause any of the conditions set forth in Clauses 3.2 and/or 3.3(i) not to be satisfied as of the Completion Date, and such violation, breach or inaccuracy has not been waived by the Purchaser or cured by the Seller within 20 (twenty) Business Days after receipt by the Seller of written notice thereof from the Purchaser or is not reasonably capable of being cured prior to the Long Stop Date.
(vi) By the Seller or the Purchaser, upon written notice to the other, if a court of competent jurisdiction or any other Governmental Authority shall have issued a final, non-appealable order preventing or otherwise prohibiting served on such date to elect not to proceed with the consummation of the Transactions.
5.5. If this Agreement is terminated prior to Completion in accordance with Clause 5.4 above,
(i) this Agreement shall become void and of no further force and effect; provided, however, that transactions set out herein whereupon the provisions of this Clause 5.5 and Clauses 1 (Definitions and Interpretation), 11 (Announcements and Confidentiality), 12 (Notices), 13 (Governing Law, Disputes and Jurisdiction), 14.1 (Entire Agreement), 14.6 (Variation), 14.7 (No Assignment), 14.8 (Waiver), 14.9 (Severability), 14.10 (Supersession) and 14.11 (Expenses) 4.5 shall survive apply.
4.5 This Clause 4.5 shall apply only in the termination of this Agreement indefinitely and that nothing herein shall relieve any Party from any liability for fraud or any breach of the provisions of this Agreement prior circumstances referred to such termination; and
(ii) if applicable, the Observer shall no longer be entitled to attend the meetings of the Board (or any committee thereof) and the nominees of the Purchaser appointed on the Board in accordance with Clause 6.2 shall resign with immediate effect4.
Appears in 1 contract
Completion. 5.1. Subject to the conditions set out in Clauses 3.1, 3.2 and 3.3, 5.1 Completion shall take place on at the Completion Date.offices of ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, LLP at ▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇ or such other place as the parties may agree forthwith upon the execution of this Agreement, when all the following business will be simultaneously transacted:
5.2. The obligations of 5.1.1 each of the Parties under Clause 5.3 below are interdependent of each other. The Completion shall not occur unless all of the obligations specified in Clause 5.3, have been simultaneously complied with and are fully effective.
5.3. On the Completion DateVendors shall:
(ia) Subject to deductions pursuant to Clause 4.4procure its execution of this Agreement and the Agreement for the Transfer and Assumption of Obligations under the Subscription Agreement, the Purchaser shall remit Shareholders’ Agreement and the Purchase Consideration Registration Rights Agreement of equal date hereof (in immediately available funds) to the Seller’s Bank Account“Assumption Agreement”).
(ii) The Seller shall 5.1.2 the Purchaser shall:
(a) provide to its Depository Participant duly executed DP Instructions procure the passing of the resolutions of members in the prescribed form for set out in Schedule 3 and board resolutions in Schedule 4 to authorize the allotment and issue of the Consideration Shares to the Vendors pursuant to the terms of Clause 3.1;
(b) enter and register the Vendors as shareholders, in such share amounts and to such persons/entities as set forth on Schedule 1, Part B hereto, of the Consideration Shares on the Purchaser’s register of members and provide each Vendor with a copy of the Purchaser’s share register certified by a director of the Purchaser as true, accurate and complete as of the date of the Completion;
(c) procure the execution of the Assumption Agreement; and
(d) procure the adoption of an Amended and Restated Memorandum and Articles of Association in the form attached hereto as Schedule 5 (which shall be duly filed with and registered by the Registrar of Companies of the Cayman Islands within five (5) days after the Completion).
5.1.3 The BVI Company’s board resolutions in the form as set out in Schedule 6 to authorize the transfer of the Sale Shares to the Demat Account of Purchaser shall be passed;
5.1.4 The BVI Company shall arrange to enter and register the Purchaser (details of which shall be provided to the Seller in writing as soon as practicable after the Execution Date); (b) procure its Depository Participant to duly acknowledge such DP Instructions; (c) deliver a copy of such acknowledgement to the Purchaser; and (d) use best endeavours to procure credit holder of the Sale Shares to and enter and register such share transfers on the Demat Account BVI Company’s register of members;
5.2 The transactions described in Clause 5.1 shall take place at the same time, so that in the event of a default of the Purchaserperformance of any such transactions by either party, the other party shall not be obliged to complete this Agreement or perform any obligations hereunder (without prejudice to any further legal remedies).
5.3 As soon as reasonably practicable following the Completion and in any event not later than fifteen (iii15) The Seller shalldays after the Completion, to the extent it is able to do so through exercise of its voting rights, procure that a Board meeting is held at which the following business shall be transacted:
(a) the appointment of directors nominated by the Purchaser on the Board shall be approved; and
(b) an extra-ordinary general meeting each of the shareholders of the Company to approve the matters set out in Clause 5.3(iii)(a) and the amendment of the Articles of Association Vendors shall be convened.
5.4. This Agreement may be terminated on or prior to the Completion Date as follows:
(i) By the mutual written consent of the Purchaser and the Seller.
(ii) By the Sellerdeliver, upon written notice to the Purchaser, if the conditions set out original share certificates in Clauses 3.1 and 3.3 have not been satisfied (or satisfied subject only to Completion where applicable) or waived (where applicable) on or before 270 (two hundred seventy) days from the Execution Date or such later date as may be mutually agreed between the Parties in writing (“Long Stop Date”); provided that the Seller shall not be entitled to terminate this Agreement pursuant to this Clause 5.4(ii) if Seller’s breach of this Agreement has prevented or materially delayed the consummation respect of the Transactions Sale Shares owned by them respectively, together with instruments of transfer in favour of the Purchaser in respect of the Sale Shares duly executed by the registered holders thereof (which term if necessary), and the Purchaser shall deliver, to the Vendors, original share certificates for the purposes Consideration Shares issued by the Purchaser in such share amounts and to such persons/entities as set forth on Schedule 1, Part B hereto.
5.4 Each member of this Clause 5.4(ii) the Company Group shall not include use its best efforts to comply at all times with PRC law and, further, shall use its best efforts to timely obtain and/or effect all Approvals required thereof by PRC law at any time and from time to time (including registration with State Administration of Foreign Exchange, if applicable). In addition, each member of the Financing);
(iii) By Company Group shall use its best efforts to procure each of the owners or beneficial owners of any equity interest in the Purchaser, upon written notice whether direct or indirect, to the Seller, if the conditions set out timely obtain all Approvals required by PRC law in Clauses 3.2 and 3.3 have not been satisfied (or satisfied subject only relation to Completion where applicable) or waived (where applicable) on or before the Long Stop Date; provided that the Purchaser shall not be entitled to terminate this Agreement pursuant to this Clause 5.4(iii) if Purchaser’s breach of this Agreement has prevented or materially delayed the consummation of the Transactions.
(iv) By the Seller (if the Seller is not such interest in material breach of the Seller Warranties, covenants or agreements under this Agreement so as to cause any of the conditions set forth in Clause 3.2 and/or 3.3(i) not to be satisfied), upon written notice to the Purchaser, if there has been a material inaccuracy of any statement or warranty, or any unremedied material breach of a covenant or other agreement, of the Purchaser contained in this Agreement, which violation, breach or inaccuracy would cause any of the conditions set forth in Clause 3.1 and/or 3.3 not to be satisfied as of the Completion Date, and such violation, breach or inaccuracy has not been waived by the Seller or cured by the Purchaser within 20 (twenty) Business Days after receipt by the Purchaser of written notice thereof from the Seller or is not reasonably capable of being cured prior to the Long Stop Date.
(v) By the Purchaser (if the Purchaser is not in material breach of the Purchaser Warranties, covenants or agreements under this Agreement so as to cause any of the conditions set forth in Clause 3.1 and/or 3.3 not to be satisfied), upon written notice to the Seller, if there has been a material inaccuracy of any statement or warranty, or any unremedied material breach of a covenant or other agreement, of the Seller contained in this Agreement, which violation, breach or inaccuracy would cause any of the conditions set forth in Clauses 3.2 and/or 3.3(i) not to be satisfied as of the Completion Date, and such violation, breach or inaccuracy has not been waived by the Purchaser or cured by the Seller within 20 (twenty) Business Days after receipt by the Seller of written notice thereof from the Purchaser or is not reasonably capable of being cured prior to the Long Stop Date.
(vi) By the Seller or the Purchaser, upon written notice to the other, if a court of competent jurisdiction or any other Governmental Authority shall have issued a final, non-appealable order preventing or otherwise prohibiting the consummation of the Transactions.
5.5. If this Agreement is terminated prior to Completion in accordance with Clause 5.4 above,
(i) this Agreement shall become void and of no further force and effect; provided, however, that the provisions of this Clause 5.5 and Clauses 1 (Definitions and Interpretation), 11 (Announcements and Confidentiality), 12 (Notices), 13 (Governing Law, Disputes and Jurisdiction), 14.1 (Entire Agreement), 14.6 (Variation), 14.7 (No Assignment), 14.8 (Waiver), 14.9 (Severability), 14.10 (Supersession) and 14.11 (Expenses) shall survive the termination of this Agreement indefinitely and that nothing herein shall relieve any Party from any liability for fraud or any breach of the provisions of this Agreement prior to such termination; and
(ii) if applicable, the Observer shall no longer be entitled to attend the meetings of the Board (or any committee thereof) and the nominees of the Purchaser appointed on the Board in accordance with Clause 6.2 shall resign with immediate effect.
Appears in 1 contract
Sources: Sale and Purchase Agreement (China Sunergy Co., Ltd.)
Completion. 5.1. Subject to the conditions set out in Clauses 3.1, 3.2 and 3.3, 5.1 Completion shall take place at the offices of the Sellers’ Solicitors on the Completion DateDate when all the business referred to in Schedule 6 shall be transacted.
5.2. The obligations of each of 5.2 At Completion the Parties under Clause 5.3 below are interdependent of each other. The Completion Sellers shall not occur unless all of deliver to the obligations Buyer the documents and evidence specified in Clause 5.3, have been simultaneously complied with and are fully effectiveSchedule 6.
5.3. On 5.3 At Completion the Completion Date:
(i) Subject to deductions pursuant to Clause 4.4, the Purchaser Sellers shall remit the Purchase Consideration (in immediately available funds) to the Seller’s Bank Account.
(ii) The Seller shall (a) provide to its Depository Participant duly executed DP Instructions in the prescribed form for the transfer of the Sale Shares to the Demat Account of the Purchaser (details of which shall be provided to the Seller in writing as soon as practicable after the Execution Date); (b) procure its Depository Participant to duly acknowledge such DP Instructions; (c) deliver a copy of such acknowledgement to the Purchaser; and (d) use best endeavours to procure credit of the Sale Shares to the Demat Account of the Purchaser.
(iii) The Seller shall, to the extent it is able to do so through exercise of its voting rights, procure that a Board board meeting of the Company is held at which the following business shall be transacted:directors:-
5.3.1 approve the registration of the transfers in respect of the Shares referred to in paragraph 1 of Schedule 6 (a) subject only to due stamping);
5.3.2 accept the appointment resignations referred to in paragraph 7 of directors Schedule 6 and appoint the persons nominated by the Purchaser on Buyer as directors and secretary of the Board shall be approvedCompany with effect from the end of the meeting;
5.3.3 change the Company’s registered office address as the Buyer directs; and
(b) an extra-ordinary general 5.3.4 change the Company’s accounting reference date as the Buyer directs.
5.4 At Completion the Sellers shall procure that a board meeting of the shareholders each of the Company Subsidiaries is held at which the directors:-
5.4.1 accept the resignations referred to approve in paragraph 7 of Schedule 6 in respect of the relevant Subsidiary and appoint the persons nominated by the Buyer as directors and secretary of the Subsidiary with effect from the end of the meeting;
5.4.2 change the relevant Subsidiary’s registered office address as the Buyer directs; and
5.4.3 change the relevant Subsidiary’s accounting reference date as the Buyer directs.
5.5 Upon completion of all the matters set out referred to in Clause 5.3(iii)(a) and Clauses 5.2 to 5.4 above, the amendment Buyer shall:-
5.5.1 deliver a copy, certified to be a true copy by a director or secretary of the Articles Buyer, of Association shall be convened.
5.4. This Agreement may be terminated on or prior to the Completion Date as follows:
(i) By the mutual written consent a resolution of the Purchaser Buyer’s board of directors authorising the execution and the Seller.
(ii) By the Seller, upon written notice to the Purchaser, if the conditions set out in Clauses 3.1 and 3.3 have not been satisfied (or satisfied subject only to Completion where applicable) or waived (where applicable) on or before 270 (two hundred seventy) days from the Execution Date or such later date as may be mutually agreed between the Parties in writing (“Long Stop Date”); provided that the Seller shall not be entitled to terminate this Agreement pursuant to this Clause 5.4(ii) if Seller’s breach completion of this Agreement has prevented or materially delayed the consummation and each of the Transactions Transaction Documents to be entered into by the Buyer (which term for including the purposes issue of this Clause 5.4(ii) shall not include the FinancingConsideration Shares and the Loan Notes);
(iii) By 5.5.2 pay the Purchaser, upon written notice to the Seller, if the conditions set out in Clauses 3.2 and 3.3 have not been satisfied (or satisfied subject only to Completion where applicable) or waived (where applicable) on or before the Long Stop Date; provided that the Purchaser shall not be entitled to terminate this Agreement pursuant to this Clause 5.4(iii) if Purchaser’s breach of this Agreement has prevented or materially delayed the consummation of the Transactions.
(iv) By the Seller (if the Seller is not in material breach of the Seller Warranties, covenants or agreements under this Agreement so as to cause any of the conditions set forth in Clause 3.2 and/or 3.3(i) not to be satisfied), upon written notice to the Purchaser, if there has been a material inaccuracy of any statement or warranty, or any unremedied material breach of a covenant or other agreement, of the Purchaser contained in this Agreement, which violation, breach or inaccuracy would cause any of the conditions set forth in Clause 3.1 and/or 3.3 not to be satisfied as of the Completion Date, and such violation, breach or inaccuracy has not been waived by the Seller or cured by the Purchaser within 20 (twenty) Business Days after receipt by the Purchaser of written notice thereof from the Seller or is not reasonably capable of being cured prior to the Long Stop Date.
(v) By the Purchaser (if the Purchaser is not in material breach of the Purchaser Warranties, covenants or agreements under this Agreement so as to cause any of the conditions set forth in Clause 3.1 and/or 3.3 not to be satisfied), upon written notice to the Seller, if there has been a material inaccuracy of any statement or warranty, or any unremedied material breach of a covenant or other agreement, of the Seller contained in this Agreement, which violation, breach or inaccuracy would cause any of the conditions set forth in Clauses 3.2 and/or 3.3(i) not to be satisfied as of the Completion Date, and such violation, breach or inaccuracy has not been waived by the Purchaser or cured by the Seller within 20 (twenty) Business Days after receipt by the Seller of written notice thereof from the Purchaser or is not reasonably capable of being cured prior to the Long Stop Date.
(vi) By the Seller or the Purchaser, upon written notice to the other, if a court of competent jurisdiction or any other Governmental Authority shall have issued a final, non-appealable order preventing or otherwise prohibiting the consummation of the Transactions.
5.5. If this Agreement is terminated prior to Completion Cash Consideration in accordance with Clause 5.4 above,3.3;
5.5.3 issue to each of the Sellers the Loan Notes set out against that Seller’s name in column (i5) of Schedule 1 and deliver to the Sellers’ Solicitors as soon as reasonably practicable thereafter and in any event within 5 Business Days of Completion the relevant certificates evidencing title to such Loan Notes;
5.5.4 issue to each Seller the number of Consideration Shares (credited as fully paid) set out against that Seller’s name in column (4) of Schedule 1 as soon as reasonably practicable thereafter and in any event within 5 Business Days of Completion;
5.5.5 procure the issue of stock certificates (including the legend referred to in Clause 3.5) in the name of the relevant Seller as soon as reasonably practicable thereafter and in any event within 5 Business Days of Completion; and
5.5.6 sign the Escrow Account Instruction Letter and procure that the Buyer’s Solicitors sign and deliver to The Royal Bank of Scotland plc a bank mandate for the Escrow Account.
5.6 The Buyer is not obliged to complete this Agreement shall become void unless the purchase of all the Shares is completed simultaneously in accordance with the terms of this Agreement and each of no further force and effect; provided, however, that the Sellers has fulfilled all of his obligations to be performed at Completion under this Clause.
5.7 Subject to the provisions of this Clause 5.5 3.6 and Clauses 1 (Definitions Clause 8, the ISG Shares and Interpretation), 11 (Announcements and Confidentiality), 12 (Notices), 13 (Governing Law, Disputes and Jurisdiction), 14.1 (Entire Agreement), 14.6 (Variation), 14.7 (No Assignment), 14.8 (Waiver), 14.9 (Severability), 14.10 (Supersession) and 14.11 (Expenses) Loan Notes to be issued to the EBT on Completion shall survive be available for ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ to direct the termination of this Agreement indefinitely and that nothing herein shall relieve any Party from any liability for fraud EBT to transfer or any breach of the provisions of this Agreement prior grant options over to such termination; and
(ii) if applicable, current or future employees or officers of any Group Company as he may specify from time to time in writing to the Observer shall no longer be entitled to attend the meetings of the Board (or any committee thereof) EBT and the nominees of the Purchaser appointed on the Board in accordance with Clause 6.2 shall resign with immediate effectBuyer.
Appears in 1 contract
Sources: Share Purchase Agreement (Information Services Group Inc.)
Completion. 5.1. Subject to 6.1 Completion shall take place at the offices of Titmuss Sainer Dechert in the UK at 2 ▇▇▇▇▇▇▇▇▇' ▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇ (or at such other place as the Parties may agree) on such date as the Executive and the Purchaser may agree but in any event not later than 72 hours after the conditions set out in Clauses 3.1clause 3.1 have been fulfilled, 3.2 and 3.3or waived as provided in clause 3.4, Completion shall take place on the Completion Date.
5.2. The obligations of when each of the Parties under Clause 5.3 below are interdependent of each other. The Completion shall not occur unless all (so far as it is within his or its powers so to do) take or cause the following steps to be taken and, to the extent necessary, to be sanctioned by the Board and/or the shareholder of the obligations specified in Clause 5.3, have been simultaneously complied with and are fully effective.Company (as appropriate):-
5.3. On 6.1.1 the Completion Date:
(i) Subject Executive shall deliver to deductions pursuant to Clause 4.4, the Purchaser shall remit the Purchase Consideration (in immediately available funds) stock certificates and duly signed stock powers or other instruments of transfer relating to the Seller’s Bank Account.
(ii) The Seller shall (a) provide to its Depository Participant duly executed DP Instructions in the prescribed form for the transfer of the Sale Shares to the Demat Account Purchaser;
6.1.2 the Purchaser shall pay to the Executive the aggregate sum of $1 in consideration of the transfer of the Sale Shares;
6.1.3 the Company shall register the Purchaser (details of which shall be provided to or such persons as the Seller in writing Purchaser may direct as soon as practicable after the Execution Date); (b) procure its Depository Participant to duly acknowledge such DP Instructions; (c) deliver a copy of such acknowledgement to the Purchaser; and (d) use best endeavours to procure credit holders of the Sale Shares and issue new stock certificates to the Demat Account Purchaser or as it may direct in respect of the Purchaser.Sale Shares;
(iii) The Seller shall, to the extent it is able to do so through exercise of its voting rights, procure that a Board meeting is held at which the following business shall be transacted:
(a) the appointment of directors nominated by the Purchaser on the Board shall be approved; and
(b) an extra-ordinary general meeting of the shareholders of 6.1.4 the Company to approve shall adopt the matters set out in Clause 5.3(iii)(a) Business Plan and the amendment of Financial Plan;
6.1.5 the Articles of Association Company shall be convened.appoint the CCP Director as provided by clause 9;
5.4. This Agreement may be terminated on or prior 6.1.6 the Company shall deliver to the Completion Date as follows:
(i) By the mutual written consent of the Purchaser and the SellerPurchaser shall deliver to the Company duly executed copies of the Consultancy Agreement;
6.1.7 the Company shall deliver to the Purchaser copies of the Service Agreement duly executed by the Company and the Executive;
6.1.8 the Company shall deliver to CCP, ▇▇▇▇▇▇ and Newick and CCP, ▇▇▇▇▇▇ and Newick shall deliver to the Company duly executed copies of the Loan Agreements and CCP shall advance to the Company the First Loan in accordance with the terms of the First Loan Agreement;
6.1.9 the Company shall adopt the Revised Bylaws and revise its certificate of incorporation by incorporating the restricted transactions set out in the third schedule to this agreement as transactions which cannot be conducted by the Company without the unanimous consent of the Board, or, insofar as the transactions set out in the third schedule are resolutions to be passed by the shareholders, without the consent of at least 75% of the shareholders;
6.1.10 the Company shall pay to CCP the arrangement fee of $7,500 referred to in clause 12.3.1 and the fifth schedule in respect of the First Loan and the arrangement fee 2,5 per cent. of the principal amount of the Second Loan Agreement, referred to in clause 12.3.2 and the sixth schedule;
6.1.11 deeds of waiver of pre-emption rights in relation to the issues and transfers of shares contemplated in this agreement in a form satisfactory to the Purchaser duly executed by each of the Initial Investors, such deeds to include confirmation by the Initial Investors that they will cooperate with the other Parties in relation to any Take-over or Flotation and that they have read and consent to the terms of this agreement.
6.2 If any of the Parties (ii) By the Seller, upon written notice to other than the Purchaser, if the conditions set out in Clauses 3.1 and 3.3 have not been satisfied (or satisfied subject only to Completion where applicable) or waived (where applicable) on or before 270 (two hundred seventy) days from the Execution Date or such later date as may be mutually agreed between the Parties in writing (“Long Stop Date”); provided that the Seller shall not be entitled to terminate this Agreement pursuant to this Clause 5.4(ii) if Seller’s breach of this Agreement has prevented or materially delayed the consummation of the Transactions (which term for the purposes of this Clause 5.4(iiCCP, ▇▇▇▇▇▇ and/or Newick) shall not include the Financing);
(iii) By the Purchaser, upon written notice fail to the Seller, if the conditions set out in Clauses 3.2 and 3.3 have not been satisfied (or satisfied subject only to Completion where applicable) or waived (where applicable) perform on or before the Long Stop Date; provided that the Purchaser shall not be entitled to terminate this Agreement pursuant to this Clause 5.4(iii) if Purchaser’s breach of this Agreement has prevented or materially delayed the consummation of the Transactions.
(iv) By the Seller (if the Seller is not in material breach of the Seller Warranties, covenants or agreements under this Agreement so as to cause date due for Completion any of the conditions set forth in Clause 3.2 and/or 3.3(i) not obligations which this agreement requires it or him to be satisfied)perform on or by that date, upon written notice to the Purchaser, if there has been a material inaccuracy of any statement or warrantyCCP, or any unremedied material breach of a covenant or other agreement, of ▇▇▇▇▇▇ and/or Newick (as the Purchaser contained case may be) shall in this Agreement, which violation, breach or inaccuracy would cause any of the conditions set forth in Clause 3.1 and/or 3.3 not addition to be satisfied as of the Completion Date, and such violation, breach or inaccuracy has not been waived by the Seller or cured by the Purchaser within 20 (twenty) Business Days after receipt by the Purchaser of written notice thereof from the Seller or is not reasonably capable of being cured prior without prejudice to the Long Stop Date.
(v) By the Purchaser (if the Purchaser is not in material breach of the Purchaser Warranties, covenants or agreements under this Agreement so as to cause any of the conditions set forth in Clause 3.1 and/or 3.3 not to be satisfied), upon written notice to the Seller, if there has been a material inaccuracy of any statement or warranty, or any unremedied material breach of a covenant or other agreement, of the Seller contained in this Agreement, which violation, breach or inaccuracy would cause any of the conditions set forth in Clauses 3.2 and/or 3.3(i) not to be satisfied as of the Completion Date, and such violation, breach or inaccuracy has not been waived by the Purchaser or cured by the Seller within 20 (twenty) Business Days after receipt by the Seller of written notice thereof from the Purchaser or is not reasonably capable of being cured prior to the Long Stop Date.
(vi) By the Seller or the Purchaser, upon written notice to the other, if a court of competent jurisdiction or any other Governmental Authority shall remedies that they may have issued be entitled to:-
6.2.1 defer Completion to a final, non-appealable order preventing or otherwise prohibiting date not more than 14 days following the consummation of the Transactions.
5.5. If this Agreement is terminated prior to date on which Completion in accordance with Clause 5.4 above,
should have taken place (i) this Agreement shall become void and of no further force and effect; provided, however, so that the provisions of this Clause 5.5 and Clauses 1 (Definitions and Interpretationclause shall apply to Completion as so deferred), 11 (Announcements and Confidentiality), 12 (Notices), 13 (Governing Law, Disputes and Jurisdiction), 14.1 (Entire Agreement), 14.6 (Variation), 14.7 (No Assignment), 14.8 (Waiver), 14.9 (Severability), 14.10 (Supersession) and 14.11 (Expenses) shall survive the termination of ; or
6.2.2 proceed to Completion so far as is practicable; or
6.2.3 rescind this Agreement indefinitely and that nothing herein shall relieve any Party from any liability for fraud or any breach of the provisions of this Agreement prior to such termination; and
(ii) if applicable, the Observer shall no longer be entitled to attend the meetings of the Board (or any committee thereof) and the nominees of the Purchaser appointed on the Board in accordance with Clause 6.2 shall resign with immediate effectagreement.
Appears in 1 contract
Sources: Share Purchase and Shareholders' Agreement (Adva International Inc)
Completion. 5.1. (A) Subject to satisfaction of all the conditions set out Conditions in full (save for any Condition the full compliance or satisfaction of which has been waived by the Purchaser) and the provisions under Clauses 3.1, 3.2 2 and 3.35, Completion shall take place on the Completion Date.
5.2. The obligations of each Date at the offices of the Parties under Clause 5.3 below are interdependent of each other. The Completion Company at 3.00 p.m. or at such other place and time as shall not occur unless all be mutually agreed by the parties hereto (time in either case being of the obligations specified in Clause 5.3, have been simultaneously complied with and are fully effective.
5.3. On the Completion Date:
essence) when all (ibut not part only) Subject to deductions pursuant to Clause 4.4, the Purchaser shall remit the Purchase Consideration (in immediately available funds) to the Seller’s Bank Account.
(ii) The Seller shall (a) provide to its Depository Participant duly executed DP Instructions in the prescribed form for the transfer of the Sale Shares to the Demat Account of the Purchaser (details of which shall be provided to the Seller in writing as soon as practicable after the Execution Date); (b) procure its Depository Participant to duly acknowledge such DP Instructions; (c) deliver a copy of such acknowledgement to the Purchaser; and (d) use best endeavours to procure credit of the Sale Shares to the Demat Account of the Purchaser.
(iii) The Seller shall, to the extent it is able to do so through exercise of its voting rights, procure that a Board meeting is held at which the following business shall be transactedtransacted:-
(i) the Vendors shall (so far as it is within their respective powers and capacities so to do) deliver or cause to be delivered to the Purchaser:-
(a) certified true copies of the documents referred to in Clauses 2(A) (vi) to (ix);
(b) the Deed of Indemnity duly executed by each of the Vendors;
(c) evidence to the satisfaction of the Purchaser that the term of the Joint Venture Contract has been validly extended from 20 years to 31 years;
(d) certified true copies of such legal opinions to the satisfaction of the Purchaser (in form and substance) as the Purchaser may request;
(ii) the Vendors (so far as it is within their respective powers and capacities so to do) shall procure that with effect from Completion:
(a) the appointment of directors 5 persons nominated by the Purchaser on be appointed as new directors of the Board Company;
(b) the General Manager, Chief Accountant, and such other managerial personnel as nominated by the Purchaser be appointed by the board of directors of the Company in accordance with the meeting rules of the Company;
(c) the resignation of such number of directors of the Company so that the number of directors in the new board of the Company after the appointments referred to in Clause 9(A)(ii)(a) above shall be approved8; and
(bd) an extra-ordinary general meeting the resignation of the shareholders of the Company to approve the matters set out in Clause 5.3(iii)(a) and the amendment of the Articles of Association shall be convened.
5.4. This Agreement may be terminated on or prior to the Completion Date such managerial personnel as follows:
(i) By the mutual written consent of the Purchaser and the Seller.
(ii) By the Seller, upon written notice to the Purchaser, if the conditions set out in Clauses 3.1 and 3.3 have not been satisfied (or satisfied subject only to Completion where applicable) or waived (where applicable) on or before 270 (two hundred seventy) days from the Execution Date or such later date as may be mutually agreed between the Parties in writing (“Long Stop Date”); provided that the Seller shall not be entitled to terminate this Agreement pursuant to this Clause 5.4(ii) if Seller’s breach of this Agreement has prevented or materially delayed the consummation of the Transactions (which term for the purposes of this Clause 5.4(ii) shall not include the Financing)request;
(iii) By the Vendors shall (so far as it is within their respective powers and capacities so to do) produce evidence to the satisfaction of the Purchaser that save for those related party transactions which have been disclosed in writing by the Vendors, any arrangements and agreements between the Vendors and the Company shall be terminated with effect from the Completion Date by mutual agreement between the respective parties thereto without liability on the part of the Company ;
(iv) the Vendors shall (so far as it is within their respective powers and capacities so to do) return or deliver and cause to be returned or delivered to the Company or the Purchaser all Corporate Documents of the Company;
(v) the Vendors shall (so far as it is within their respective powers and capacities so to do) deliver and cause to be delivered to the Purchaser written confirmation that the Vendors are not aware of any matter or thing which is in breach of any of the Warranties when they take effect on Completion;
(vi) the Vendors shall deliver such other documents to the Purchaser as may be required to give the Purchaser good title to the Sale Capital and to enable the Purchaser or its nominees to become the owner thereof; and
(vii) the Purchaser shall procure that the Purchaser, upon written notice 's Solicitors shall pay to each of the Vendors the Initial Consideration in cash or in the manner as the Vendors and the Purchaser shall have agreed and as the Purchaser shall have been notified in writing at least two Business Days prior to the SellerCompletion Date, if such notification shall in any event be binding on each of the conditions set out in Clauses 3.2 and 3.3 have not been satisfied Vendors.
(or satisfied subject only to Completion where applicableB) or waived (where applicable) on or before the Long Stop Date; provided that the The Purchaser shall not be entitled obliged to terminate complete this Agreement pursuant or perform any obligations hereunder unless the Vendors comply fully with the requirements of Clause 9(A). Without prejudice to any other remedies which may be available to the Purchaser hereunder, if any provision of this Clause 5.4(iii) if Purchaser’s breach of this Agreement has prevented or materially delayed the consummation of the Transactions.
(iv) By the Seller (if the Seller 9 is not in material breach of complied with by the Seller Warranties, covenants or agreements under this Agreement so as to cause any of the conditions set forth in Clause 3.2 and/or 3.3(i) not to be satisfied), upon written notice to the Purchaser, if there has been a material inaccuracy of any statement or warranty, or any unremedied material breach of a covenant or other agreement, of the Purchaser contained in this Agreement, which violation, breach or inaccuracy would cause any of the conditions set forth in Clause 3.1 and/or 3.3 not to be satisfied as of Vendors on the Completion Date, and such violation, breach or inaccuracy has not been waived by the Seller or cured by the Purchaser within 20 (twenty) Business Days after receipt by the Purchaser of written notice thereof from the Seller or is not reasonably capable of being cured prior to the Long Stop Date.
(v) By the Purchaser (if the Purchaser is not in material breach of the Purchaser Warranties, covenants or agreements under this Agreement so as to cause any of the conditions set forth in Clause 3.1 and/or 3.3 not to be satisfied), upon written notice to the Seller, if there has been a material inaccuracy of any statement or warranty, or any unremedied material breach of a covenant or other agreement, of the Seller contained in this Agreement, which violation, breach or inaccuracy would cause any of the conditions set forth in Clauses 3.2 and/or 3.3(i) not to be satisfied as of the Completion Date, and such violation, breach or inaccuracy has not been waived by the Purchaser or cured by the Seller within 20 (twenty) Business Days after receipt by the Seller of written notice thereof from the Purchaser or is not reasonably capable of being cured prior to the Long Stop Date.
(vi) By the Seller or the Purchaser, upon written notice to the other, if a court of competent jurisdiction or any other Governmental Authority shall have issued a final, non-appealable order preventing or otherwise prohibiting the consummation of the Transactions.
5.5. If this Agreement is terminated prior to Completion in accordance with Clause 5.4 above,may:-
(i) this Agreement shall become void and of no further force and effect; provided, however, defer Completion to a date falling not more than 28 days after the original Completion Date (so that the provisions of this Clause 5.5 and Clauses 1 (Definitions and Interpretation)9 shall apply to the deferred Completion) provided that, 11 (Announcements and Confidentiality), 12 (Notices), 13 (Governing Law, Disputes and Jurisdiction), 14.1 (Entire Agreement), 14.6 (Variation), 14.7 (No Assignment), 14.8 (Waiver), 14.9 (Severability), 14.10 (Supersession) and 14.11 (Expenses) time shall survive the termination of this Agreement indefinitely and that nothing herein shall relieve any Party from any liability for fraud or any breach be of the provisions of essence as regards the deferred Completion and if Completion is not effected on such deferred date, the Purchaser may rescind this Agreement prior to such terminationAgreement; andor
(ii) if applicable, proceed to Completion so far as practicable (but without prejudice to the Observer Purchaser's rights hereunder) insofar as the Vendors shall no longer be entitled to attend the meetings of the Board (or any committee thereof) and the nominees of the Purchaser appointed on the Board in accordance not have complied with Clause 6.2 shall resign with immediate effect.their obligations hereunder; or
Appears in 1 contract
Completion. 5.1. 7.1 Subject to the satisfaction of the conditions set out precedent in Clauses 3.1Clause 3 of this Agreement, 3.2 the purchase and 3.3, Completion sale of the Shares shall take place be completed on the Completion Date.
5.2. The obligations of each Date at the offices of the Parties under Clause 5.3 below are interdependent of each other. The Completion shall not occur unless all of Vendors’ Solicitors when the obligations specified in Clause 5.3, have been simultaneously complied with Vendors and are fully effective.
5.3. On the Completion Date:
(i) Subject to deductions pursuant to Clause 4.4, the Purchaser shall remit comply with the Purchase Consideration (in immediately available funds) to provisions of Part 4 of the Seller’s Bank AccountSchedule.
(ii) 7.2 The Seller shall (a) provide to its Depository Participant duly executed DP Instructions in the prescribed form for the transfer provisions of Part 9 of the Sale Shares to the Demat Account of the Purchaser Schedule (details of which Tax Undertaking) shall be provided to the Seller in writing as soon as practicable after the Execution Date); (b) procure its Depository Participant to duly acknowledge such DP Instructions; (c) deliver a copy of such acknowledgement to the Purchaser; and (d) use best endeavours to procure credit of the Sale Shares to the Demat Account of the Purchaserhave effect from Completion.
(iii) The Seller shall, to 7.3 If the extent it is able to do so through exercise of its voting rights, procure that a Board meeting is held at which the following business shall be transacted:
(a) the appointment of directors nominated by the Purchaser on the Board shall be approved; and
(b) an extra-ordinary general meeting of the shareholders of the Company to approve the matters set out conditions in Clause 5.3(iii)(a) and the amendment of the Articles of Association shall be convened.
5.4. This Agreement may be terminated 3.1 have not been fulfilled on or prior to before 150 Business Days from the Completion Date as follows:
(i) By date of this Agreement then the mutual written consent of Agreement shall terminate unless the Purchaser and the SellerVendors’ Representatives mutually agree otherwise.
(ii) By the Seller, upon written notice to the Purchaser, if the conditions set out in Clauses 3.1 and 3.3 have not been satisfied (or satisfied subject only to Completion where applicable) or waived (where applicable) on or before 270 (two hundred seventy) days from the Execution Date or such later date as may be mutually agreed between the Parties in writing (“Long Stop Date”); provided that the Seller shall not be entitled to terminate this Agreement pursuant to this Clause 5.4(ii) if Seller’s breach of this Agreement has prevented or materially delayed the consummation of the Transactions (which term for the purposes of this Clause 5.4(ii) shall not include the Financing);
(iii) By the Purchaser, upon written notice to the Seller, if the conditions set out in Clauses 3.2 and 3.3 have not been satisfied (or satisfied subject only to Completion where applicable) or waived (where applicable) on or before the Long Stop Date; provided that the Purchaser shall not be entitled to terminate this Agreement pursuant to this Clause 5.4(iii) if Purchaser’s breach of this Agreement has prevented or materially delayed the consummation of the Transactions.
(iv) By the Seller (if the Seller is not in material breach of the Seller Warranties, covenants or agreements under this Agreement so as to cause any of the conditions set forth in Clause 3.2 and/or 3.3(i) not to be satisfied), upon written notice to the Purchaser, if there has been a material inaccuracy of any statement or warranty, or any unremedied material breach of a covenant or other agreement, of the Purchaser contained in this Agreement, which violation, breach or inaccuracy would cause any of the conditions set forth in Clause 3.1 and/or 3.3 not to be satisfied as of the Completion Date, and such violation, breach or inaccuracy has not been waived by the Seller or cured by the Purchaser within 20 (twenty) Business Days after receipt by the Purchaser of written notice thereof from the Seller or is not reasonably capable of being cured prior to the Long Stop Date.
(v) By the Purchaser (if the Purchaser is not in material breach of the Purchaser Warranties, covenants or agreements under this Agreement so as to cause any of the conditions set forth in Clause 3.1 and/or 3.3 not to be satisfied), upon written notice to the Seller, if there has been a material inaccuracy of any statement or warranty, or any unremedied material breach of a covenant or other agreement, of the Seller contained in this Agreement, which violation, breach or inaccuracy would cause any of the conditions set forth in Clauses 3.2 and/or 3.3(i) not to be satisfied as of the Completion Date, and such violation, breach or inaccuracy has not been waived by the Purchaser or cured by the Seller within 20 (twenty) Business Days after receipt by the Seller of written notice thereof from the Purchaser or is not reasonably capable of being cured prior to the Long Stop Date.
(vi) By the Seller or the Purchaser, upon written notice to the other, if a court of competent jurisdiction or any other Governmental Authority shall have issued a final, non-appealable order preventing or otherwise prohibiting the consummation of the Transactions.
5.5. If this Agreement is terminated prior to Completion in accordance with Clause 5.4 above,
(i) this Agreement shall become void and of no further force and effect; provided, however, that the provisions of this Clause 5.5 and Clauses 1 (Definitions and Interpretation), 11 (Announcements and Confidentiality), 12 (Notices), 13 (Governing Law, Disputes and Jurisdiction), 14.1 (Entire Agreement), 14.6 (Variation), 14.7 (No Assignment), 14.8 (Waiver), 14.9 (Severability), 14.10 (Supersession) and 14.11 (Expenses) shall survive the 7.4 Upon termination of this Agreement indefinitely in accordance with Clauses 4.4 or 7.3, the provisions of Clauses 1, 17, 19, 20, 22, 23, 24, 25, 27 and that nothing herein 28, shall relieve in each case survive termination.
7.5 Each of the Vendors undertakes that, immediately following Completion until such time as the transfers of the Shares have been registered in the register of members of the Companies, each of the Vendors will hold those Shares registered in his name on trust for and as nominee for the Purchaser or its nominees and each Vendor undertakes to hold all dividends and distributions and exercise all voting rights available in respect of the Shares in accordance with the directions of the Purchaser or its nominees and if any Party from any liability for fraud or any Vendor is in breach of the provisions of undertakings contained in this Agreement prior Clause 7.5 such Vendor irrevocably authorises the Purchaser to such termination; and
appoint some person or persons to execute all instruments or proxies (iiincluding consents to short notice) if applicable, or other documents which the Observer shall no longer Purchaser or its nominees may reasonably require and which may be entitled necessary to enable the Purchaser or its nominees to attend the and vote at general meetings of the Board Company and to do any thing or things necessary to give effect to the rights contained in this Clause 7.5. The power of attorney granted in this Clause 7.5 is given by way of security for the due performance by each Vendor of his obligations under this Clause 7.5.
7.6 At any time after Completion, the Vendors shall (or and shall use their reasonable endeavours to procure that any committee thereofnecessary third party shall) sign and the nominees of execute all such documents and do all such acts and things as the Purchaser appointed on may reasonably require for effectively vesting the Board Shares in accordance with Clause 6.2 shall resign with immediate effectthe Purchaser.
Appears in 1 contract
Completion. 5.1. Subject to the conditions set out 7.1 Unless this Agreement is previously terminated in Clauses 3.1, 3.2 and 3.3accordance with its terms, Completion shall take place at the offices of the Sellers' Solicitors (or at any other place agreed in writing by the Buyer and the Sellers) on 9 January 2017 or on the Completion Date.
5.2. The obligations of each of Business Day the Parties under Clause 5.3 below are interdependent of each other. The Completion shall not occur unless all of the obligations specified in Clause 5.3, have been simultaneously complied with and are fully effective.
5.3. On the Completion Date:
(i) Subject to deductions pursuant to Clause 4.4, the Purchaser shall remit the Purchase Consideration (in immediately available funds) to the Seller’s Bank Account.
(ii) The Seller shall (a) provide to its Depository Participant duly executed DP Instructions in the prescribed form for the transfer of the Sale Shares to the Demat Account of the Purchaser (details of which shall be provided to the Seller in writing as soon as practicable after the Execution Date); (b) procure its Depository Participant to duly acknowledge such DP Instructions; (c) deliver a copy of such acknowledgement to the Purchaser; and (d) use best endeavours to procure credit of the Sale Shares to the Demat Account of the Purchaser.
(iii) The Seller shall, to the extent it is able to do so through exercise of its voting rights, procure that a Board meeting is held at which the following business shall be transacted:
(a) the appointment of directors nominated by the Purchaser on the Board shall be approved; and
(b) an extra-ordinary general meeting of the shareholders of the Company to approve the matters Condition set out in Clause 5.3(iii)(a) 4.1 has been fulfilled, whichever is the later, and all the amendment business referred to in this Clause 7 has been transacted.
7.2 At Completion each of the Articles of Association Sellers shall be conveneddeliver or make available to the Buyer the documents and evidence specified in Schedule 13.
5.4. This Agreement may be terminated on or prior 7.3 Upon completion of all of the matters referred to in Clause 7.2, the Buyer shall:-
7.3.1 pay the Consideration (less the Escrow Amount) to the Completion Date as follows:
(i) By the mutual written consent of the Purchaser and the Seller.
(ii) By the Seller, upon written notice to the Purchaser, if the conditions set out in Clauses 3.1 and 3.3 have not been satisfied (or satisfied subject only to Completion where applicable) or waived (where applicable) on or before 270 (two hundred seventy) days from the Execution Date or such later date as may be mutually agreed between the Parties in writing (“Long Stop Date”); provided that the Seller shall not be entitled to terminate this Agreement pursuant to this Clause 5.4(ii) if Seller’s breach of this Agreement has prevented or materially delayed the consummation of the Transactions (which term for the purposes of this Clause 5.4(ii) shall not include the Financing);
(iii) By the Purchaser, upon written notice to the Seller, if the conditions set out in Clauses 3.2 and 3.3 have not been satisfied (or satisfied subject only to Completion where applicable) or waived (where applicable) on or before the Long Stop Date; provided that the Purchaser shall not be entitled to terminate this Agreement pursuant to this Clause 5.4(iii) if Purchaser’s breach of this Agreement has prevented or materially delayed the consummation of the Transactions.
(iv) By the Seller (if the Seller is not in material breach of the Seller Warranties, covenants or agreements under this Agreement so as to cause any of the conditions set forth in Clause 3.2 and/or 3.3(i) not to be satisfied), upon written notice to the Purchaser, if there has been a material inaccuracy of any statement or warranty, or any unremedied material breach of a covenant or other agreement, of the Purchaser contained in this Agreement, which violation, breach or inaccuracy would cause any of the conditions set forth in Clause 3.1 and/or 3.3 not to be satisfied as of the Completion Date, and such violation, breach or inaccuracy has not been waived by the Seller or cured by the Purchaser within 20 (twenty) Business Days after receipt by the Purchaser of written notice thereof from the Seller or is not reasonably capable of being cured prior to the Long Stop Date.
(v) By the Purchaser (if the Purchaser is not in material breach of the Purchaser Warranties, covenants or agreements under this Agreement so as to cause any of the conditions set forth in Clause 3.1 and/or 3.3 not to be satisfied), upon written notice to the Seller, if there has been a material inaccuracy of any statement or warranty, or any unremedied material breach of a covenant or other agreement, of the Seller contained in this Agreement, which violation, breach or inaccuracy would cause any of the conditions set forth in Clauses 3.2 and/or 3.3(i) not to be satisfied as of the Completion Date, and such violation, breach or inaccuracy has not been waived by the Purchaser or cured by the Seller within 20 (twenty) Business Days after receipt by the Seller of written notice thereof from the Purchaser or is not reasonably capable of being cured prior to the Long Stop Date.
(vi) By the Seller or the Purchaser, upon written notice to the other, if a court of competent jurisdiction or any other Governmental Authority shall have issued a final, non-appealable order preventing or otherwise prohibiting the consummation of the Transactions.
5.5. If this Agreement is terminated prior to Completion Sellers in accordance with Clause 5.4 above,5.4;
7.3.2 sign the Escrow Account Instruction Letter and pay the Escrow Amount into the Escrow Account by telegraphic transfer; and
7.3.3 deliver to the Sellers a copy, certified to be a true copy by a director or secretary of the Buyer, of a resolution of the Buyer's board of directors (ior an authorised committee of that board) this Agreement shall become void approving Completion and of no further force authorising the execution and effect; provided, however, that the provisions of this Clause 5.5 and Clauses 1 (Definitions and Interpretation), 11 (Announcements and Confidentiality), 12 (Notices), 13 (Governing Law, Disputes and Jurisdiction), 14.1 (Entire Agreement), 14.6 (Variation), 14.7 (No Assignment), 14.8 (Waiver), 14.9 (Severability), 14.10 (Supersession) and 14.11 (Expenses) shall survive the termination completion of this Agreement indefinitely and the Transaction Documents.
7.4 The Buyer is not obliged to complete this Agreement unless:
7.4.1 each of the Sellers has performed all its obligations under this Clause 7; and
7.4.2 the purchase of all of the Assets is completed simultaneously in accordance with this Agreement (but so that nothing herein completion of the purchase of some of the Assets will not affect the rights of the Buyer with respect to the others).
7.5 If Completion does not proceed on the date set for Completion (or on the date to which Completion is postponed pursuant to Clause 4.5
.1) because the Sellers fail to fully discharge any of their obligations under this Clause, the Buyer may by notice to the Sellers:-
7.5.1 proceed to Completion so far as practicable without prejudice to its right under this Agreement on the basis that any provision of Clause 7.2 which may not have been fully complied with at Completion shall relieve any Party from any liability for fraud at the sole discretion of the Buyer be held over to such future date or any breach of dates as the Buyer may in its sole discretion may determine;
7.5.2 postpone Completion to such date as the Buyer specifies being not later than 13 January 2017 in which event the provisions of this Agreement prior apply as if that other date is the date set for Completion pursuant to such terminationClause 7.1;
7.5.3 waive any or all of the requirements contained in Clause 7.2; or
7.5.4 if the Sellers fail to fully discharge any of their obligations under this Clause on or before 13 January 2017, terminate this Agreement in which event the provisions of Clause 12 apply.
7.6 The Sellers are not obliged to complete this Agreement unless:
7.6.1 the Buyer has performed all its obligations under this Clause 7; and
7.6.2 the purchase of all of the Assets is completed simultaneously in accordance with this Agreement (but so that completion of the purchase of some of the Assets will not affect the rights of the Buyer with respect to the others).
7.7 If Completion does not proceed on the date set for Completion (or on the date to which Completion is postponed pursuant to Clause 4.5
.1) because the Buyer fails to fully discharge any of its obligations under this Clause, the Sellers may by notice to the Buyer:-
7.7.1 proceed to Completion so far as practicable without prejudice to their rights under this Agreement on the basis that any provision of Clause 7.2 which may not have been fully complied with at Completion shall at the sole discretion of the Sellers be held over to such future date or dates as the Sellers may in their sole discretion may determine;
7.7.2 postpone Completion to such date as the Sellers specify being not later than 13 January 2017 in which event the provisions of this Agreement apply as if that other date is the date set for Completion pursuant to Clause 7.1;
7.7.3 waive any or all of the requirements contained in Clause 7.2; or
7.7.4 if the Buyer fails to fully discharge any of its obligations under this Clause on or before on 13 January 2017, terminate this Agreement in which event the provisions of Clause 12 apply.
7.8 The Buyer shall use its best endeavours to procure that the Sellers or any member of the Sellers' Group which has given any Guarantee to any third party or acted as surety in relation to any Contract or otherwise in connection with the Business is released from the Guarantee or surety with effect from Completion. Each party hereto agrees with the other parties hereto (contracting for themselves and each member of the Sellers' Group) that pending release of each Guarantee and surety, the Buyer shall indemnify the Sellers (including each member of the Sellers' Group) and the Sellers shall indemnify the Buyer against all (i) losses, (ii) if applicableliabilities and (iii) costs which a party may reasonably occur pursuant to the Guarantee or surety on or after Completion (including, without limitation, all (i) losses,(ii) liabilities and (iii) costs reasonably incurred as a result of defending or settling any claim alleging such liability). Notwithstanding the Observer foregoing, no party hereto shall no longer be entitled required to attend indemnify another party in the meetings event that the latter party (including in the case of the Board (or any committee thereof) and the nominees Sellers each member of the Purchaser appointed on the Board in accordance with Clause 6.2 shall resign with immediate effectSellers' Group) commit an act that constitutes gross negligence or committed or wilful misconduct.
Appears in 1 contract
Completion. 5.1. Subject to the conditions set out in Clauses 3.1, 3.2 and 3.3, 5.1 Completion shall take place place, unless otherwise agreed in writing between the Parties, at the offices of Hammarskiöld & Co in Stockholm, Sweden before 10 a.m. five (5) Business Days from the date upon which the Condition Precedent in Section 4.1 is satisfied, deemed to be satisfied or waived (the “Completion Date”). If Completion has not occurred on or before June 30, 2006 this Agreement shall automatically become null and void and neither Party shall have any claims against each other by reason thereof.
5.2 At the Completion Date.
5.2. The obligations of each of Date the Parties under Clause 5.3 below are interdependent of each other. The Completion shall not occur unless all of the obligations specified in Clause 5.3, have been simultaneously complied with and are fully effective.
5.3. On the Completion DateVendors shall:
(i) Subject in exchange for the payments to deductions pursuant be made in accordance with Section 5.3 below, cause the transfer of all the Instruments (less those instruments held by Tradex AB) to Clause 4.4the securities account designated by the Purchaser;
(ii) cause the Directors to resign from the board of the Company and Tradex Converting;
(iii) deliver a legal opinion from a reputable Dutch law firm confirming EQT BV’s legal status and authority to sign this Agreement and the Escrow Account and Pledge Agreement;
(iv) deliver all other documents required to be delivered to the Purchaser under this Agreement to complete the transactions contemplated hereby and such further documents as the Purchaser may reasonably require in connection with the Completion; and
(v) certify that all claims and debts pertaining to the Related Parties have been finally settled.
5.3 At the Completion Date, the Purchaser shall remit pay the Preliminary Purchase Consideration (in immediately available funds) to the Seller’s Bank Account.
(ii) The Seller shall (a) provide to its Depository Participant duly executed DP Instructions in the prescribed form for the transfer of the Sale Shares to the Demat Account of the Purchaser (details of which shall be provided to the Seller in writing as soon as practicable after the Execution Date); (b) procure its Depository Participant to duly acknowledge such DP Instructions; (c) deliver a copy of such acknowledgement to the Purchaser; and (d) use best endeavours to procure credit of the Sale Shares to the Demat Account of the Purchaser.
(iii) The Seller shall, to the extent it is able to do so through exercise of its voting rights, procure that a Board meeting is held at which the following business shall be transacted:
(a) the appointment of directors nominated by the Purchaser on the Board shall be approved; and
(b) an extra-ordinary general meeting of the shareholders of the Company to approve the matters set out in Clause 5.3(iii)(a) Price and the amendment of the Articles of Association shall be convened.
5.4. This Agreement may be terminated on or prior to the Completion Date Estimated Net Worth Adjustment as follows:
(i) By make payment in cash of the mutual written consent Deposit of SEK ninety (90) million into a specified interest bearing account (the “Escrow Account”) with the Escrow Bank, to be held as collateral for Claims under the Agreement, and to be held, disbursed and administrated in accordance with the terms of a separate agreement (the “Escrow Account and Pledge Agreement”) between EQT BV, the Purchaser and the Seller.Escrow Bank, substantially in the form set out in Exhibit 5.3 (i);
(ii) By make a cash deposit of the Seller, upon written notice Estimated Net Worth Adjustment to the Purchaser, if the conditions set out in Clauses 3.1 and 3.3 have not been satisfied (or satisfied subject only to Completion where applicable) or waived (where applicable) on or before 270 (two hundred seventy) days from the Execution Date or such later date as may be mutually agreed between the Parties in writing (“Long Stop Date”)Escrow Account; provided that the Seller shall not be entitled to terminate this Agreement pursuant to this Clause 5.4(ii) if Seller’s breach of this Agreement has prevented or materially delayed the consummation of the Transactions (which term for the purposes of this Clause 5.4(ii) shall not include the Financing);and
(iii) By pay to EQT BV, as representative of all the PurchaserVendors, upon written notice the remaining part of the Preliminary Purchase Price, in immediately available funds in accordance with EQT BV’s transfer instructions to be provided to the Seller, if Purchaser not later than five (5) Business Days prior to the conditions set out in Clauses 3.2 and 3.3 have not been satisfied (or satisfied subject only to Completion where applicable) or waived (where applicable) on or before the Long Stop Date; provided that the Purchaser shall not be entitled to terminate this Agreement pursuant to this Clause 5.4(iii) if Purchaser’s breach of this Agreement has prevented or materially delayed the consummation of the Transactions.
(iv) By the Seller (if the Seller is not in material breach of the Seller Warranties, covenants or agreements under this Agreement so as to cause any of the conditions set forth in Clause 3.2 and/or 3.3(i) not to be satisfied), upon written notice to the Purchaser, if there has been a material inaccuracy of any statement or warranty, or any unremedied material breach of a covenant or other agreement, of the Purchaser contained in this Agreement, which violation, breach or inaccuracy would cause any of the conditions set forth in Clause 3.1 and/or 3.3 not to be satisfied as of 5.4 At the Completion Date, and such violation, breach or inaccuracy has not been waived by the Seller or cured by the Purchaser within 20 (twenty) Business Days after receipt by shall refinance or pay off the Purchaser of written notice thereof from the Seller or is not reasonably capable of being cured prior to the Long Stop DateBank Debt.
(v) By the Purchaser (if the Purchaser is not in material breach of the Purchaser Warranties, covenants or agreements under this Agreement so as to cause any of the conditions set forth in Clause 3.1 and/or 3.3 not to be satisfied), upon written notice to the Seller, if there has been a material inaccuracy of any statement or warranty, or any unremedied material breach of a covenant or other agreement, of the Seller contained in this Agreement, which violation, breach or inaccuracy would cause any of the conditions set forth in Clauses 3.2 and/or 3.3(i) not to be satisfied as of 5.5 At the Completion Date, the Vendors shall cause a shareholders meeting and such violation, breach or inaccuracy has not been waived a board meeting to be held by the Company and the Group Companies allowing the Purchaser or cured to appoint new directors and deputy directors and to appoint company signatories. The Purchaser shall prepare the minutes of said meetings as well as the necessary ancillary documentation, and the Purchaser shall procure that the documentation, immediately following said meetings, is submitted to and received by the Seller within 20 (twenty) Business Days after receipt Swedish Companies Registration Office. The resigning directors shall have no claims against the Company and the Group Companies other than salary under any employment contracts with the Company or the Group Companies. This shall be evidenced by resignation letters in form and substance satisfactory to the Seller Purchaser.
5.6 At the next annual general meeting of written notice thereof from the Company and the Subsidiaries, the Purchaser undertakes to grant the Directors and any such other directors as listed in Exhibit 5.6 and who have retired in connection with the Completion or is otherwise during the last fiscal year, discharge from liability for their administration until the Completion Date (or the earlier date of the retirement), however, provided that, in the auditors’ reports for the relevant period, the auditors of the Company and the Subsidiaries do not reasonably capable recommend against such discharges.
5.7 Should the Vendors fail to effect the registration of being cured prior any Instruments (such Instruments hereinafter referred to as “Incomplete Instruments”) in the securities account as provided for in Section 5.2 (i) above, the Purchaser may withhold such part of the Purchase Price that corresponds to the Long Stop Date.
(vi) By value of the Seller or respective Incomplete Instrument, which values are set out in Exhibit 5.7. Upon the registration subsequent to the Completion Date of any Incomplete Instruments in the name of the Purchaser, upon written notice then the Purchaser shall immediately release and pay to the other, if a court of competent jurisdiction or any other Governmental Authority shall have issued a final, non-appealable order preventing or otherwise prohibiting Vendors the consummation part of the Transactions.
5.5Purchase Price withheld in respect of that Incomplete Instrument. If this Agreement is terminated prior The Purchaser shall at the Vendors’ resonable request give assistance and provide information to the Vendors for the Vendors’ transfer of the Incomplete Instruments to the Purchaser and for the Vendors’ verification of the number of Incomplete Instruments. In the event that the Vendors fail to effect the registration of at least ninety (90) per cent of the Instruments at the Completion Date in accordance with Clause 5.4 above,
the securities account as provided for in Section 5.2 (i) this Agreement shall become void and of no further force and effect; provided, however, that the provisions of this Clause 5.5 and Clauses 1 (Definitions and Interpretation), 11 (Announcements and Confidentiality), 12 (Notices), 13 (Governing Law, Disputes and Jurisdiction), 14.1 (Entire Agreement), 14.6 (Variation), 14.7 (No Assignment), 14.8 (Waiver), 14.9 (Severability), 14.10 (Supersession) and 14.11 (Expenses) shall survive the termination of this Agreement indefinitely and that nothing herein shall relieve any Party from any liability for fraud or any breach of the provisions of this Agreement prior to such termination; and
(ii) if applicableabove, the Observer Purchaser shall no longer be entitled have the right to attend the meetings of the Board (or any committee thereof) and the nominees of the Purchaser appointed on the Board in accordance with Clause 6.2 shall resign with immediate effectrescind this Agreement.
Appears in 1 contract
Completion. 5.1. Subject to the conditions set out in Clauses 3.1, 3.2 and 3.3, (1) Completion shall take place on at the Completion Date.
5.2. The obligations of each offices of the Parties under Vendor's Solicitors at 11 am on 24 April 1998 (or such other time as may be agreed in writing between the parties) when the events set out in the following provisions of this Clause 5.3 below are interdependent of each other. The Completion 11 shall not occur unless all of the obligations specified in Clause 5.3, have been simultaneously complied with and are fully effective.
5.3. On the Completion Date:
(i) Subject to deductions pursuant to Clause 4.4, the Purchaser shall remit the Purchase Consideration (in immediately available funds) to the Seller’s Bank Accounttake place.
(ii2) The Seller Vendor shall effect delivery to the Purchaser on the Effective Time of those Sale Assets capable of being transferred by delivery and of the Third Party Tooling, which delivery shall be deemed to take place at the premises where they are being used or stored.
(3) The Vendor shall:-
(a) provide to its Depository Participant duly executed DP Instructions with effect from the Effective Time convey assign or otherwise vest in the prescribed form for the transfer Purchaser benefit and title to such of the Sale Shares Assets as are not capable of being transferred by delivery and deliver to the Demat Account Purchaser possession of and title to all the Purchaser (details of which shall be provided to the Seller in writing as soon as practicable after the Execution Date); other Sale Assets transferable by delivery;
(b) procure its Depository Participant to duly acknowledge such DP Instructions; (c) that CAL shall enter into and deliver a copy of such acknowledgement to the Purchaser; Purchaser the Property Transfer and (d) use best endeavours deliver to procure credit the Purchaser all documents and/or deeds of title relating to the Sale Shares Assets in the Vendor's possession, provided that any such documents and/or deeds of title as are situated at the Properties shall be delivered to the Demat Account of the PurchaserPurchaser where they are situated.
(iii4) The Seller shall, to the extent it is able to do so through exercise of its voting rights, Vendor shall procure that a Board meeting is held at which ▇▇▇▇▇▇▇▇▇ shall and the following business Purchaser shall be transacted:enter into the Site 2 Lease and the Site 3 Lease.
(5) The Purchaser shall:-
(a) pay the appointment of directors nominated Initial Payment to the Vendor by telegraphic transfer to the Purchaser on the Board shall be approvedVendor's bank account at Barclays Bank plc, ▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇, sort code 20-00-00T, Account number 8031 2339; and
(b) an extra-ordinary general meeting of the shareholders of the Company to approve the matters set out in Clause 5.3(iii)(a) and the amendment of the Articles of Association shall be convened.
5.4. This Agreement may be terminated on or prior deliver to the Completion Date as follows:
(i) By the mutual written consent of the Purchaser and the Seller.
(ii) By the Seller, upon written notice to the Purchaser, if the conditions set out in Clauses 3.1 and 3.3 have not been satisfied (Vendor duly executed guarantee and/or other financial bond or satisfied subject only to Completion where applicable) or waived (where applicable) on or before 270 (two hundred seventy) days from the Execution Date or such later date as may be mutually agreed between the Parties in writing (“Long Stop Date”); provided that the Seller shall not be entitled to terminate this Agreement instrument required pursuant to this Clause 5.4(ii) if Seller’s breach of this Agreement has prevented or materially delayed the consummation of the Transactions (which term for the purposes of this Clause 5.4(ii) shall not include the Financing6(5);
(iii) By the Purchaser, upon written notice to the Seller, if the conditions set out in Clauses 3.2 and 3.3 have not been satisfied (or satisfied subject only to Completion where applicable) or waived (where applicable) on or before the Long Stop Date; provided that the Purchaser shall not be entitled to terminate this Agreement pursuant to this Clause 5.4(iii) if Purchaser’s breach of this Agreement has prevented or materially delayed the consummation of the Transactions.
(iv) By the Seller (if the Seller is not in material breach of the Seller Warranties, covenants or agreements under this Agreement so as to cause any of the conditions set forth in Clause 3.2 and/or 3.3(i) not to be satisfied), upon written notice to the Purchaser, if there has been a material inaccuracy of any statement or warranty, or any unremedied material breach of a covenant or other agreement, of the Purchaser contained in this Agreement, which violation, breach or inaccuracy would cause any of the conditions set forth in Clause 3.1 and/or 3.3 not to be satisfied as of the Completion Date, and such violation, breach or inaccuracy has not been waived by the Seller or cured by the Purchaser within 20 (twenty) Business Days after receipt by the Purchaser of written notice thereof from the Seller or is not reasonably capable of being cured prior to the Long Stop Date.
(v) By the Purchaser (if the Purchaser is not in material breach of the Purchaser Warranties, covenants or agreements under this Agreement so as to cause any of the conditions set forth in Clause 3.1 and/or 3.3 not to be satisfied), upon written notice to the Seller, if there has been a material inaccuracy of any statement or warranty, or any unremedied material breach of a covenant or other agreement, of the Seller contained in this Agreement, which violation, breach or inaccuracy would cause any of the conditions set forth in Clauses 3.2 and/or 3.3(i) not to be satisfied as of the Completion Date, and such violation, breach or inaccuracy has not been waived by the Purchaser or cured by the Seller within 20 (twenty) Business Days after receipt by the Seller of written notice thereof from the Purchaser or is not reasonably capable of being cured prior to the Long Stop Date.
(vi) By the Seller or the Purchaser, upon written notice to the other, if a court of competent jurisdiction or any other Governmental Authority shall have issued a final, non-appealable order preventing or otherwise prohibiting the consummation of the Transactions.
5.5. If this Agreement is terminated prior to Completion in accordance with Clause 5.4 above,
(i) this Agreement shall become void and of no further force and effect; provided, however, that the provisions of this Clause 5.5 and Clauses 1 (Definitions and Interpretation), 11 (Announcements and Confidentiality), 12 (Notices), 13 (Governing Law, Disputes and Jurisdiction), 14.1 (Entire Agreement), 14.6 (Variation), 14.7 (No Assignment), 14.8 (Waiver), 14.9 (Severability), 14.10 (Supersession) and 14.11 (Expenses) shall survive the termination of this Agreement indefinitely and that nothing herein shall relieve any Party from any liability for fraud or any breach of the provisions of this Agreement prior to such termination; and
(ii) if applicable, the Observer shall no longer be entitled to attend the meetings of the Board (or any committee thereof) and the nominees of the Purchaser appointed on the Board in accordance with Clause 6.2 shall resign with immediate effect.
Appears in 1 contract
Completion. 5.1. Subject 5.1 In accordance with the terms of this Agreement and subject to Clause 3.1 and Clause 3.2 above, the conditions set out in Clauses 3.1, 3.2 and 3.3, Completion shall take place remotely via the electronic exchange of documents and signatures/ at the registered office of the Company or any other place as may be mutually decided by the Parties on a date mutually agreed between the Parties provided such date is on or prior to expiry of: (i) 45 (forty five) days from the date of listing of equity shares of the Buyer on a Stock Exchange upon completion of the IPO; or (ii) Long Stop Date (“Completion Date”).
5.2 On the Completion Date, the Parties shall deliver or perform (or ensure that there is delivered or performed) all those documents, items and actions (as applicable to such Party) set out in Schedule 7 (Completion).
5.2. 5.3 The obligations of each of the Parties under in this Clause 5.3 below 5 read with Schedule 7 (Completion) are interdependent of and conditional upon the fulfilment (by each other. The Completion shall not occur unless all of the Parties) of their respective obligations specified in Clause 5.3, set out under Schedule 7 (Completion) and no such transaction will be considered as consummated and no action shall be deemed to have been simultaneously complied with taken nor documents executed or delivered and are fully effective.
5.3. On the Completion Date:
(i) Subject to deductions pursuant to Clause 4.4, the Purchaser shall remit the Purchase Consideration (in immediately available funds) to the Seller’s Bank Account.
(ii) The Seller shall (a) provide to its Depository Participant duly executed DP Instructions in the prescribed form for the transfer of the Sale Shares to the Demat Account of the Purchaser (details of which no documents or actions shall be provided deemed to the Seller in writing as soon as practicable after the Execution Date); (b) procure its Depository Participant to duly acknowledge such DP Instructions; (c) deliver a copy of such acknowledgement to the Purchaser; and (d) use best endeavours to procure credit of the Sale Shares to the Demat Account of the Purchaser.
(iii) The Seller shall, to the extent it is able to do so through exercise of its voting rights, procure that a Board meeting is held at which the following business shall be transacted:
(a) the appointment of directors nominated by the Purchaser have come into effect on the Board shall be approved; and
(b) an extra-ordinary general meeting of the shareholders of the Company to approve the matters set out in Clause 5.3(iii)(a) and the amendment of the Articles of Association shall be convened.
5.4. This Agreement may be terminated on or prior to the Completion Date as follows:
(i) By the mutual written consent unless all such transactions, agreements, deeds, actions and/or documents have been consummated, taken, executed, delivered and have come into effect. If any of the Purchaser and the Seller.
actions provided for in this Clause 5 read with Schedule 7 (iiCompletion) By the Seller, upon written notice to the Purchaser, if the conditions set out in Clauses 3.1 and 3.3 have not been satisfied (taken place on the same day, the day on which the last of such actions or satisfied subject only to Completion where applicable) or waived (where applicable) on or before 270 (two hundred seventy) days from the Execution Date or such later date conditions, as may be mutually agreed between the Parties in writing (“Long Stop Date”); provided that the Seller shall not be entitled to terminate this Agreement pursuant to for under this Clause 5.4(ii5 read with Schedule 7 (Completion) if Seller’s breach of this Agreement has prevented or materially delayed taken place will be deemed to be the consummation of the Transactions (which term Completion Date for the purposes of this Clause 5.4(ii) shall not include the Financing);
(iii) By the Purchaser, upon written notice to the Seller, if the conditions set out in Clauses 3.2 and 3.3 have not been satisfied (or satisfied subject only to Completion where applicable) or waived (where applicable) on or before the Long Stop Date; provided that the Purchaser shall not be entitled to terminate this Agreement pursuant to this Clause 5.4(iii) if Purchaser’s breach of this Agreement has prevented or materially delayed the consummation of the Transactions.
(iv) By the Seller (if the Seller is not in material breach of the Seller Warranties, covenants or agreements under this Agreement so as to cause any of the conditions set forth in Clause 3.2 and/or 3.3(i) not to be satisfied), upon written notice to the Purchaser, if there has been a material inaccuracy of any statement or warranty, or any unremedied material breach of a covenant or other agreement, of the Purchaser contained in this Agreement, which violation, breach or inaccuracy would cause any of the conditions set forth in Clause 3.1 and/or 3.3 not to be satisfied as of . If the Completion Date, and such violation, breach or inaccuracy has not been waived by the Seller or cured by the Purchaser occurred within 20 2 (twentytwo) Business Days after receipt of payment of the Purchase Consideration by the Purchaser Buyer then the Sellers shall refund the entire Purchase Consideration (including the Advance Consideration) to the Buyer within 1 (one) Business Day of receipt of a written notice thereof from the Seller or is not reasonably capable of being cured prior to the Long Stop DateBuyer.
(v) By the Purchaser (if the Purchaser is not in material breach of the Purchaser Warranties, covenants or agreements under this Agreement so as to cause any of the conditions set forth in Clause 3.1 and/or 3.3 not to be satisfied), upon written notice to the Seller, if there has been a material inaccuracy of any statement or warranty, or any unremedied material breach of a covenant or other agreement, of the Seller contained in this Agreement, which violation, breach or inaccuracy would cause any of the conditions set forth in Clauses 3.2 and/or 3.3(i) not to be satisfied as of the Completion Date, and such violation, breach or inaccuracy has not been waived by the Purchaser or cured by the Seller within 20 (twenty) Business Days after receipt by the Seller of written notice thereof from the Purchaser or is not reasonably capable of being cured prior to the Long Stop Date.
(vi) By the Seller or the Purchaser, upon written notice to the other, if a court of competent jurisdiction or any other Governmental Authority shall have issued a final, non-appealable order preventing or otherwise prohibiting the consummation of the Transactions.
5.5. If this Agreement is terminated prior to Completion in accordance with Clause 5.4 above,
(i) this Agreement shall become void and of no further force and effect; provided, however, that the provisions of this Clause 5.5 and Clauses 1 (Definitions and Interpretation), 11 (Announcements and Confidentiality), 12 (Notices), 13 (Governing Law, Disputes and Jurisdiction), 14.1 (Entire Agreement), 14.6 (Variation), 14.7 (No Assignment), 14.8 (Waiver), 14.9 (Severability), 14.10 (Supersession) and 14.11 (Expenses) shall survive the termination of this Agreement indefinitely and that nothing herein shall relieve any Party from any liability for fraud or any breach of the provisions of this Agreement prior to such termination; and
(ii) if applicable, the Observer shall no longer be entitled to attend the meetings of the Board (or any committee thereof) and the nominees of the Purchaser appointed on the Board in accordance with Clause 6.2 shall resign with immediate effect.
Appears in 1 contract
Sources: Share Purchase Agreement
Completion. 5.1. 8.1 Completion shall be conditional upon:
8.1.1 the Purchaser being satisfied with the prospects for the Business in accordance with Clause 7 and its not having served a notice terminating this Agreement pursuant to Clause 16.3;
8.1.2 the (i) Purchaser raising the Main Funding through the private placement of Securities equal to or more than the amount of the Main Funding, closing of which shall be a condition of, and simultaneously closed on, Completion, (ii) the Main Funding having been deposited at Completion into a restricted bank account of the Company agreeable to the Purchaser, (iii) the Company presenting evidence satisfactory to the Purchaser that the requirements of the Purchaser’s designated representative’s (or his dully appointed replacement) signature is an irrevocable and absolute requirement for purposes of said restricted bank account of the Company, in order to properly govern the manner and terms upon which the funds to be raised in the Main Funding may be drawn down and disbursed from said restricted bank account (i.e., require the approval of a designated representative of the Purchaser); and (iv) the Company presenting evidence satisfactory to the Purchaser that the disposition of any or all of the Main Funding from the said restricted bank account of the Company shall be conditional on the bank operating said restricted bank account receiving Release Notice instructions part of the Release Notice Agreement and substantially in the form of Exhibit 2, unless prior to Completion agreed to otherwise in writing solely by the Purchaser;
8.1.3 the Company and the Purchaser, having fulfilled their respective obligations with respect to the Completion Agreements and other documents as set out in Schedule 7;
8.1.4 all documents or copies of documents required to be executed and delivered to the Purchaser hereunder having been so executed and delivered;
8.1.5 all of the terms, covenants and conditions of this Agreement required to be complied with or performed by the Company and the Shareholders at or prior to the Completion having been complied with or performed;
8.1.6 there not having occurred:
(a) any material adverse change in the financial position or condition of the Company or the Purchaser, its liabilities or its assets or any damage, loss or other change in circumstances materially and adversely affecting the Company or the Purchaser, the Business or the assets of the Company or the Company’s right to carry on the Business, other than changes in the ordinary course of business, none of which have been materially adverse to the Company or the Purchaser; or
(b) any damage, destruction, loss or other event, including changes to any laws or statutes applicable to the Purchaser, the Company or the Business (whether or not covered by insurance) materially and adversely affecting the Purchaser, the Company, the Business or the assets of the Company;
8.1.7 the transactions contemplated hereby having been approved by any regulatory authorities having jurisdiction over the transactions contemplated in this Agreement, if applicable;
8.1.8 there being no disclosures in any draft Disclosure Letter delivered to the Purchaser on or before the Completion Date which will have, or may be likely to have in the sole discretion of the Purchaser, a material adverse effect upon the value of the Company and/ or the Business or which in the sole discretion of the Purchaser, may adversely effect the Company’s ability to deliver the Business Plan or which in the sole discretion of the Purchaser, may have the effect of altering or amending any of the Company’s and the Shareholders’ obligations or commitments pursuant to this Agreement; and
8.1.9 the delivery of the Company Financial Statements;
8.2 Subject to the Purchaser having fulfilled Condition 8.1.2 above, it shall be entitled to waive fulfillment of any of the conditions precedent to Completion including waiver of any of the requirements set out in Clauses 3.1, 3.2 Schedule 7 with the exception of the obligation imposed on the Purchaser in Schedule 7 para 13. Any such waiver shall be exercised by service of a notice in writing by the Purchaser on the Company in accordance with Clause 19 and 3.3following service of such notice the condition precedent referred to in the notice shall be deemed to have been fulfilled with immediate effect.
8.3 Completion shall take place on a date to be agreed between the Parties being a date which shall be not earlier than 2 Business Days and not later than 10 Business Days after the date when all of the conditions precedent set forth in Section 8.1 have been fulfilled. If the Parties fail to agree upon a date which is within the aforementioned 10 Business Day period, Completion shall take place on the Completion Date.
5.2. The obligations a date which shall be 15 Business Days after fulfillment of each of the Parties under Clause 5.3 below are interdependent of each other. The Completion shall not occur unless all of the obligations specified conditions precedent to Completion set forth in Section 8.1 or if such date is not a Business Day the first Business Day thereafter.
8.4 If Completion has not occurred within a period of five months from the date hereof due to non fulfillment of any one or more of the conditions precedent to Completion set out in Clause 5.38.1 above and the Purchaser has not served a notice pursuant to 16.2, have been simultaneously complied with and are fully effective.
5.3. On the Completion Datethen:
(i) Subject to deductions pursuant to Clause 4.4, 8.4.1 the Purchaser shall remit be entitled to serve notice on the Purchase Consideration (in immediately available funds) Company and the Shareholders calling upon them to meet and discuss actions which can be taken to fulfill the outstanding condition or conditions precedent which is or are preventing Completion from taking place; and
8.4.2 the Company shall be entitled to serve an equivalent notice, to the Seller’s Bank Account.
(ii) The Seller shall (a) provide to its Depository Participant duly executed DP Instructions notice described in the prescribed form for the transfer of the Sale Shares to the Demat Account of the Purchaser (details of which shall be provided to the Seller in writing as soon as practicable after the Execution Date); (b) procure its Depository Participant to duly acknowledge such DP Instructions; (c) deliver a copy of such acknowledgement to the Purchaser; and (d) use best endeavours to procure credit of the Sale Shares to the Demat Account of 8.4.1, on the Purchaser.
(iii) The Seller shall8.5 Following service of a notice pursuant to Clause 8.4 the Parties and or their representatives shall meet to discuss, in good faith, actions which can be taken to resolve the extent it is able to do so through exercise of its voting rights, procure that a Board meeting is held at difficulties which are preventing Completion from taking place. If the following business shall be transacted:
(a) the appointment of directors nominated by the Purchaser on the Board shall be approved; and
(b) an extra-ordinary general meeting of the shareholders of the Company to approve the matters set out in Clause 5.3(iii)(a) and the amendment of the Articles of Association shall be convened.
5.4. This Agreement may be terminated on or prior to the Completion Date as follows:
(i) By the mutual written consent of the Purchaser and the Seller.
(ii) By the Seller, upon written notice to the Purchaser, if the conditions set out in Clauses 3.1 and 3.3 Parties either have not been satisfied (met or satisfied subject only to Completion where applicable) or waived (where applicable) on or before 270 (two hundred seventy) days have not resolved such difficulties within a period of 28 Business Days from the Execution Date or such later date as may be mutually agreed between the Parties in writing (“Long Stop Date”); provided that the Seller of service of a Clause 8.4 notice they shall not be entitled to terminate serve notice terminating this Agreement pursuant to this Clause 5.4(ii) if Seller’s breach of this Agreement has prevented or materially delayed the consummation of the Transactions (which term for the purposes of this Clause 5.4(ii) shall not include the Financing);
(iii) By the Purchaser, upon written notice to the Seller, if the conditions set out in Clauses 3.2 and 3.3 have not been satisfied (or satisfied subject only to Completion where applicable) or waived (where applicable) on or before the Long Stop Date; provided that the Purchaser shall not be entitled to terminate this Agreement pursuant to this Clause 5.4(iii) if Purchaser’s breach of this Agreement has prevented or materially delayed the consummation of the Transactions.
(iv) By the Seller (if the Seller is not in material breach of the Seller Warranties, covenants or agreements under this Agreement so as to cause any of the conditions set forth in Clause 3.2 and/or 3.3(i) not to be satisfied), upon written notice to the Purchaser, if there has been a material inaccuracy of any statement or warranty, or any unremedied material breach of a covenant or other agreement, of the Purchaser contained in this Agreement, which violation, breach or inaccuracy would cause any of the conditions set forth in Clause 3.1 and/or 3.3 not to be satisfied as of the Completion Date, and such violation, breach or inaccuracy has not been waived by the Seller or cured by the Purchaser within 20 (twenty) Business Days after receipt by the Purchaser of written notice thereof from the Seller or is not reasonably capable of being cured prior to the Long Stop Date.
(v) By the Purchaser (if the Purchaser is not in material breach of the Purchaser Warranties, covenants or agreements under this Agreement so as to cause any of the conditions set forth in Clause 3.1 and/or 3.3 not to be satisfied), upon written notice to the Seller, if there has been a material inaccuracy of any statement or warranty, or any unremedied material breach of a covenant or other agreement, of the Seller contained in this Agreement, which violation, breach or inaccuracy would cause any of the conditions set forth in Clauses 3.2 and/or 3.3(i) not to be satisfied as of the Completion Date, and such violation, breach or inaccuracy has not been waived by the Purchaser or cured by the Seller within 20 (twenty) Business Days after receipt by the Seller of written notice thereof from the Purchaser or is not reasonably capable of being cured prior to the Long Stop Date.
(vi) By the Seller or the Purchaser, upon written notice to the other, if a court of competent jurisdiction or any other Governmental Authority shall have issued a final, non-appealable order preventing or otherwise prohibiting the consummation of the Transactions.
5.5. If this Agreement is terminated prior to Completion in accordance with Clause 5.4 above,Clause16.3.
(i) this Agreement 8.6 On Completion, which shall become void take place at the offices of the Purchaser’s Lawyers
8.6.1. the Shareholders shall transfer their Acquisition Shares with full title guarantee, free from any Encumbrances and of no further force together with all rights that attach, or may in future attach, to them including the right to receive all dividends and effect; provideddistributions declared, however, that made or paid on them on or after the provisions date of this Clause 5.5 and Clauses 1 (Definitions and Interpretation), 11 (Announcements and Confidentiality), 12 (Notices), 13 (Governing Law, Disputes and Jurisdiction), 14.1 (Entire Agreement), 14.6 (Variation), 14.7 (No Assignment), 14.8 (Waiver), 14.9 (Severability), 14.10 (Supersession) and 14.11 (Expenses) shall survive the termination of this Agreement indefinitely and that nothing herein shall relieve any Party from any liability for fraud or any breach of the provisions of this Agreement prior to such termination; and
(ii) if applicable, the Observer shall no longer be entitled to attend the meetings of the Board (or any committee thereof) and the nominees of the Purchaser appointed on the Board in accordance with Clause 6.2 shall resign with immediate effect.;
Appears in 1 contract
Completion. 5.1. 4.1 Subject to the conditions set out in Clauses 3.1clause 5, 3.2 and 3.3, Completion shall completion will take place on the Completion DateDate at the offices of the Treasurer, ▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇.
5.2. The obligations of each 4.2 On the Completion Date CBA (at the direction of the Parties under Clause 5.3 below are interdependent Treasurer) will pay to the Bank the amount of each other. The Completion shall not occur unless $194 000 000 (being the consideration payable by the Treasurer for the acquisition of all of the obligations specified rights referred to in Clause 5.3, have been simultaneously complied with clause 28 of the State Bank (Succession of Commonwealth Bank) Bill 1990 marked Exhibit "C" and are fully effective.
5.3. On initialled by the parties for identification and which amount will be deducted from the amount payable by CBA to the Treasurer pursuant to clause 3.3) at which time the parties will procure that if the same has not occurred prior to the Completion Date:
(a) the Bank will transfer to the Treasurer or his nominee all of the issued capital of Tricontinental Holdings Limited;
(b) the existing directors of Tricontinental Holdings Limited will retire and there will be appointed in place of such directors such persons as the Treasurer may nominate;
(c) SBV Futures Pty Limited and SBV Investment Management Limited will change their names to exclude "SBV"; and
(d) SBV Investment Management Limited ▇▇▇▇ retire as manager of the SBV Multitrust and Commonwealth Management Services Limited will be appointed as manager in its stead.
(a) On or prior to the Completion Date the Treasurer will: Sch. 1
(i) Subject to deductions pursuant to Clause 4.4, negotiate and will procure that his nominee negotiates in good faith with CBA a facility agreement and any other agreements ancillary or collateral thereto for the Purchaser shall remit the Purchase Consideration (in immediately available funds) provision of Finance by CBA to the Seller’s Bank Account.nominee on the terms and conditions outlined in the term sheet marked as Exhibit "D" and initialled by the parties for identification;
(ii) The Seller shall enter into and will procure that the nominee enters into the facility agreement and other agreements referred to in paragraph (a) provide to its Depository Participant duly executed DP Instructions in the prescribed form for the transfer of the Sale Shares to the Demat Account of the Purchaser (details of which shall be provided to the Seller in writing as soon as practicable after the Execution Datei); (b) procure its Depository Participant to duly acknowledge such DP Instructions; (c) deliver a copy of such acknowledgement to the Purchaser; and (d) use best endeavours to procure credit of the Sale Shares to the Demat Account of the Purchaser.;
(iii) The Seller shall, negotiate in good faith with CBA a guarantee in respect of the facility agreement referred to in paragraph (i) and all securities issued thereunder on the extent it is able to do so through exercise of its voting rights, procure that a Board meeting is held at which terms and conditions outlined in the following business shall be transacted:aforementioned term sheet;
(aiv) enter into the appointment of directors nominated by the Purchaser on the Board shall be approvedguarantee referred to in paragraph (iii); and
(v) procure that all Financial Indebtedness of each member of the Trico Group to any member of the SBV Group other than the Financial Indebtedness under the facility agreement referred to in paragraph (i) is repaid or discharged in full.
(b) an extra-ordinary general meeting of CBA will in good faith negotiate and enter into the shareholders of the Company facility agreement and other agreements referred to approve the matters set out in Clause 5.3(iii)(aclause 4.3(a)(i) and the amendment of the Articles of Association shall be convened.
5.4. This Agreement may be terminated guarantee referred to in clause 4.3(a)(iii) on or prior to the Completion Date and CBA will subject to the terms of the facility agreement advance to the nominee on the Completion Date the sum demanded by the nominee up to $2 300 000 000 pursuant to that facility agreement.
4.4 On or prior to the Completion Date the Treasurer will procure that: Sch. 1
(a) the CWA will pay to the Bank such amount as followswould, if invested by the Bank on the Completion Date at the rates applying to the respective Obligations (as defined in the Assumption Agreement) for terms ending on the maturity date of the respective Obligations (as defined in the Assumption Agreement), result in the Bank receiving sufficient funds on such maturity date to enable the Bank or CBA as the successor of the Bank to pay out all Obligations (as defined in the Assumption Agreement) then assumed by the CWA pursuant to the Assumption Agreement;
(b) the Assumption Agreement is lawfully terminated; and
(c) neither the CWA nor any member of the SBV Group has any outstanding liability, responsibility or obligation under the Assumption Agreement or any other agreement, arrangement or understanding collateral or ancillary to the Assumption Agreement.
4.5 On or prior to the Completion Date, the Treasurer will procure that all assignments of Indebtedness (as defined in the Trico Deed) and declarations of trust in respect of such Indebtedness that have been made to any member of the SBV Group pursuant to the Trico Deed will be annulled or reassigned.
4.6 On or prior to the Completion Date the Treasurer will procure that the Bank and SBV Staff Superannuation Pty Ltd enters into a trust deed in the form of the draft trust deed marked as Exhibit "E" and initialled by the parties for identification or such other form as may be agreed between the parties, whereupon CBA will execute that trust deed.
4.7 On or prior to the Completion Date the Treasurer will, and will procure that the Bank will, enter into a Deed amending the ▇▇▇▇▇▇ Deed in the form of the draft Deed marked Exhibit "F" and initialled by the parties for identification or such other form as may be agreed between the parties.
4.8 On or prior to the Completion Date the Treasurer will, and will procure that the relevant parties will, enter into a Deed of Variation in the form of the draft Deed marked Exhibit "G" and initialled by the parties for identification or such other form as may be agreed between the parties.
(a) On or prior to the Completion Date the Treasurer will:
(i) By procure that the mutual written consent Bank will make a Past Interest Notice of Claim (as defined in the Purchaser SBV Deed) for an amount of not less than $51 700 000 and the Seller.Treasurer will pay to the Bank by bank cheque the amount the subject of that Past Interest Notice of Claim; Sch. 1
(ii) By direct the Seller, upon written notice Bank not to the Purchaser, if the conditions set out in Clauses 3.1 and make any assignments or declare any trusts under clause 3.3 have not been satisfied (or satisfied subject only to Completion where applicable) or waived (where applicable) on or before 270 (two hundred seventy) days from the Execution Date or such later date as may be mutually agreed between the Parties in writing (“Long Stop Date”); provided that the Seller shall not be entitled to terminate this Agreement pursuant to this Clause 5.4(ii) if Seller’s breach of this Agreement has prevented or materially delayed the consummation of the Transactions (which term for SBV Deed that might otherwise have been required as a consequence of the purposes payment of this Clause 5.4(ii) shall not include the Financing);that Past Interest Notice of Claim; and
(iii) By release the PurchaserBank from any obligation under clause 6(a) of the SBV Deed that it might otherwise have had as a consequence of the payment of that Past Interest Notice of Claim; and, upon written notice notwithstanding the matters referred to in paragraphs (ii) and (iii) above or any other matter, the payment by the Treasurer will not operate as a discharge of any Indebtedness or Interest (as defined in the SBV Deed) and the Treasurer will treat the payment made pursuant to paragraph (i) above as having been made pursuant to and in accordance with his obligations under the SBV Deed.
(b) Upon payment of the amount referred to in clause 4.9(a)(i), the Bank and CBA as the successor of the Bank will release the Treasurer from any obligations under the SBV Deed or Warranty 24 of this Agreement to make any further payments relating to the Seller, if Interest on Indebtedness (as defined in the conditions set out in Clauses 3.2 and 3.3 have not been satisfied (or satisfied subject only to Completion where applicableSBV Deed) or waived (where applicable) accrued on or before 30 June 1990 the Long Stop Date; provided subject of that the Purchaser shall not be entitled to terminate this Agreement pursuant to this Clause 5.4(iii) if Purchaser’s breach Past Interest Notice of this Agreement has prevented or materially delayed the consummation of the TransactionsClaim.
(iv) By the Seller (if the Seller is not in material breach of the Seller Warranties, covenants 4.10 On or agreements under this Agreement so as to cause any of the conditions set forth in Clause 3.2 and/or 3.3(i) not to be satisfied), upon written notice to the Purchaser, if there has been a material inaccuracy of any statement or warranty, or any unremedied material breach of a covenant or other agreement, of the Purchaser contained in this Agreement, which violation, breach or inaccuracy would cause any of the conditions set forth in Clause 3.1 and/or 3.3 not to be satisfied as of the Completion Date, and such violation, breach or inaccuracy has not been waived by the Seller or cured by the Purchaser within 20 (twenty) Business Days after receipt by the Purchaser of written notice thereof from the Seller or is not reasonably capable of being cured prior to the Long Stop Date.
(v) By Completion Date the Purchaser (if Treasurer will, and will procure that the Purchaser is not Bank will, enter into a Deed of Release in material breach the form of the Purchaser Warranties, covenants or agreements under this Agreement so as to cause any of the conditions set forth in Clause 3.1 and/or 3.3 not to be satisfied), upon written notice to the Seller, if there has been a material inaccuracy of any statement or warranty, or any unremedied material breach of a covenant or other agreement, of the Seller contained in this Agreement, which violation, breach or inaccuracy would cause any of the conditions set forth in Clauses 3.2 and/or 3.3(i) not to be satisfied as of the Completion Date, draft Deed marked Exhibit "H" and such violation, breach or inaccuracy has not been waived initialled by the Purchaser parties for identification or cured by such other form as may be agreed between the Seller within 20 (twenty) Business Days after receipt by the Seller of written notice thereof from the Purchaser or is not reasonably capable of being cured prior to the Long Stop Dateparties.
(vi) By the Seller or the Purchaser, upon written notice to the other, if a court of competent jurisdiction or any other Governmental Authority shall have issued a final, non-appealable order preventing or otherwise prohibiting the consummation of the Transactions.
5.5. If this Agreement is terminated prior to Completion in accordance with Clause 5.4 above,
(i) this Agreement shall become void and of no further force and effect; provided, however, that the provisions of this Clause 5.5 and Clauses 1 (Definitions and Interpretation), 11 (Announcements and Confidentiality), 12 (Notices), 13 (Governing Law, Disputes and Jurisdiction), 14.1 (Entire Agreement), 14.6 (Variation), 14.7 (No Assignment), 14.8 (Waiver), 14.9 (Severability), 14.10 (Supersession) and 14.11 (Expenses) shall survive the termination of this Agreement indefinitely and that nothing herein shall relieve any Party from any liability for fraud or any breach of the provisions of this Agreement prior to such termination; and
(ii) if applicable, the Observer shall no longer be entitled to attend the meetings of the Board (or any committee thereof) and the nominees of the Purchaser appointed on the Board in accordance with Clause 6.2 shall resign with immediate effect.
Appears in 1 contract
Sources: Agreement for the Merger of State Bank of Victoria and Commonwealth Bank of Australia
Completion. 5.1. Subject to the conditions set out in Clauses 3.1, 3.2 and 3.3, 4.1 Completion shall take place at the offices of the Vendors' Solicitors on the Completion Datea date which is not earlier than 31 December 2004 and not later than 5 Business Days after 31 December 2004.
5.2. The obligations of 4.2 On Completion:
(a) each of Vendor will deliver to the Parties under Clause 5.3 below are interdependent of each other. The Completion shall not occur unless all of the obligations specified in Clause 5.3, have been simultaneously complied with and are fully effective.
5.3. On the Completion DatePurchaser:
(i) Subject to deductions pursuant to Clause 4.4, duly executed transfers of the Sale Shares held by him in favour of the Purchaser shall remit the Purchase Consideration (in immediately available fundsor as it directs) to the Seller’s Bank Account.together with any power of attorney under which such transfers have been executed;
(ii) The Seller the certificates representing the Sale Shares; and
(iii) any waiver, consent or other document necessary to give the Purchaser (or its nominees) full legal and beneficial ownership of the Sale Shares; and
(b) each Vendor shall approve, or vote in favour of, a resolution to adopt the New Articles of Association.
4.3 Immediately upon the signing of this Agreement and on Completion, the Purchaser will deliver to the Vendors' Solicitors a legal opinion, addressed to the Vendors and the Company, in a form acceptable to the Vendors and the Company, confirming that:
(a) provide the Purchaser is a corporation duly incorporated and validly existing under the laws of the State of Florida, U.S.A.;
(b) the Purchaser has all necessary corporate power, authority and capacity to enter into this Agreement and to perform its Depository Participant duly executed DP Instructions obligations hereunder and this Agreement constitutes a valid and binding obligation of the Purchaser, enforceable against it in accordance with the prescribed form for terms hereof; and
(c) no governmental or regulatory authorisation, approval, order, consent or filing is required on the transfer part of the Purchaser in connection with the execution, delivery and performance of this Agreement or any documents or agreements to be delivered under this Agreement.
4.4 The Vendors will use their reasonable endeavours to procure that a board meeting of the Company is held at which the directors of the Company shall resolve to:
(a) register the transfers of the Sale Shares to the Demat Account of the Purchaser or as it directs (details of which shall be provided subject to the Seller in writing as soon as practicable after the Execution Datestamping); (b) procure its Depository Participant to duly acknowledge such DP Instructions; (c) deliver a copy of such acknowledgement to the Purchaser; and (d) use best endeavours to procure credit of the Sale Shares to the Demat Account of the Purchaser.
(iii) The Seller shall, to the extent it is able to do so through exercise of its voting rights, procure that a Board meeting is held at which the following business shall be transacted:
(a) the appointment of directors nominated by the Purchaser on the Board shall be approved; and
(b) an extra-ordinary general meeting appoint such person as the Purchaser nominates as a director of the shareholders Company.
4.5 Upon Completion the Purchaser will pay the consideration stated in clause 3.1 by means of an electronic funds transfer to the account of the Company to approve the matters set out in Clause 5.3(iii)(a) Vendors' Solicitors with National Westminster Bank PLC, City of London Office, PO Box 12258, 1 Princes Street, London EC2R 8PA, Sort Code 60-00-01 and the amendment of the Articles of Association shall be conveneda▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇.
5.4. This Agreement may be terminated on or prior to the Completion Date as follows:
(i) By the mutual written consent of the Purchaser and the Seller.
(ii) By the Seller, upon written notice to the Purchaser, if the conditions set out in Clauses 3.1 and 3.3 have not been satisfied (or satisfied subject only to Completion where applicable) or waived (where applicable) on or before 270 (two hundred seventy) days from the Execution Date or such later date as may be mutually agreed between the Parties in writing (“Long Stop Date”); provided that the Seller shall not be entitled to terminate this Agreement pursuant to this Clause 5.4(ii) if Seller’s breach of this Agreement has prevented or materially delayed the consummation of the Transactions (which term for the purposes of this Clause 5.4(ii) shall not include the Financing);
(iii) By the Purchaser, upon written notice to the Seller, if the conditions set out in Clauses 3.2 and 3.3 have not been satisfied (or satisfied subject only to Completion where applicable) or waived (where applicable) on or before the Long Stop Date; provided that the Purchaser shall not be entitled to terminate this Agreement pursuant to this Clause 5.4(iii) if Purchaser’s breach of this Agreement has prevented or materially delayed the consummation of the Transactions.
(iv) By the Seller (if the Seller is not in material breach of the Seller Warranties, covenants or agreements under this Agreement so as to cause any of the conditions set forth in Clause 3.2 and/or 3.3(i) not to be satisfied), upon written notice to the Purchaser, if there has been a material inaccuracy of any statement or warranty, or any unremedied material breach of a covenant or other agreement, of the Purchaser contained in this Agreement, which violation, breach or inaccuracy would cause any of the conditions set forth in Clause 3.1 and/or 3.3 not to be satisfied as of the Completion Date, and such violation, breach or inaccuracy has not been waived by the Seller or cured by the Purchaser within 20 (twenty) Business Days after receipt by the Purchaser of written notice thereof from the Seller or is not reasonably capable of being cured prior to the Long Stop Date.
(v) By the Purchaser (if the Purchaser is not in material breach of the Purchaser Warranties, covenants or agreements under this Agreement so as to cause any of the conditions set forth in Clause 3.1 and/or 3.3 not to be satisfied), upon written notice to the Seller, if there has been a material inaccuracy of any statement or warranty, or any unremedied material breach of a covenant or other agreement, of the Seller contained in this Agreement, which violation, breach or inaccuracy would cause any of the conditions set forth in Clauses 3.2 and/or 3.3(i) not to be satisfied as of the Completion Date, and such violation, breach or inaccuracy has not been waived by the Purchaser or cured by the Seller within 20 (twenty) Business Days after receipt by the Seller of written notice thereof from the Purchaser or is not reasonably capable of being cured prior to the Long Stop Date.
(vi) By the Seller or the Purchaser, upon written notice to the other, if a court of competent jurisdiction or any other Governmental Authority shall have issued a final, non-appealable order preventing or otherwise prohibiting the consummation of the Transactions.
5.5. If this Agreement is terminated prior to Completion in accordance with Clause 5.4 above,
(i) this Agreement shall become void and of no further force and effect; provided, however, that the provisions of this Clause 5.5 and Clauses 1 (Definitions and Interpretation), 11 (Announcements and Confidentiality), 12 (Notices), 13 (Governing Law, Disputes and Jurisdiction), 14.1 (Entire Agreement), 14.6 (Variation), 14.7 (No Assignment), 14.8 (Waiver), 14.9 (Severability), 14.10 (Supersession) and 14.11 (Expenses) shall survive the termination of this Agreement indefinitely and that nothing herein shall relieve any Party from any liability for fraud or any breach of the provisions of this Agreement prior to such termination; and
(ii) if applicable, the Observer shall no longer be entitled to attend the meetings of the Board (or any committee thereof) and the nominees of the Purchaser appointed on the Board in accordance with Clause 6.2 shall resign with immediate effect.
Appears in 1 contract
Sources: Agreement for the Sale and Purchase of Shares (Rs Group of Companies Inc)