Operations until Closing. 6.1 From the Signing Date until Closing, except as required by the transactions contemplated by this Agreement or with the Buyer’s prior written consent (not to be unreasonably withheld, conditioned or delayed), the Seller will procure that the Group continues to operate in the ordinary course of business in accordance with past practice and that each of the Group Companies: (a) does not enter into any contract that would inhibit Closing; (b) does not change its Corporate Documents, unless such change is required by applicable law provided that any such amendments shall be notified in writing to the Buyer in advance, or pass or adopt any resolutions inconsistent with them; (c) does not issue any of its equity securities or other securities of any nature convertible into its equity securities; (d) does not create, grant or issue any right to subscribe for or acquire any of its equity securities; (e) does not declare or make a dividend or other distribution to shareholders; (f) does not grant any mortgage, charge or other security over any of its material assets or give or agree to give any material guarantee or indemnity, except for guarantees and indemnities given in the ordinary course of business; (g) does not acquire or dispose of any asset (not being an acquisition or disposal in the ordinary course of business and on arm’s length terms) and does not acquire by merger or consolidation with, purchase equity interests of or purchase substantially all of the assets of, or otherwise acquire, any business, or make any investment in, any Person or merge or consolidate with any Person, in each case to the extent such acquisition, disposition, investment, merger or consolidation is material to the Group as a whole; (h) does not assign, license or charge any of its material Intellectual Property other than in the ordinary course of business; (i) maintains, defends and diligently pursues applications for any of its material Intellectual Property in accordance with past practice; (j) does not discontinue or cease all or any material part of its business, or dissolve or enter into any plan of liquidation or dissolution or similar proceeding, or resolve to do any of the foregoing; (k) maintains in all material respects the Group’s insurance policies on the existing terms and conditions; (l) does not make any material change to the Accounting Principles by reference to which the Annual Report is drawn up except as required by reason of a concurrent change in IFRS as adopted by the European Union or in the Danish Executive Order No. 1329 of 14 December 2004; (m) does not undertake or discontinue, settle, or propose to settle any litigation in an amount exceeding DKK 5,000,000; (n) does not amend in any material way, or terminate, or expressly waive compliance with any material term of or material breaches under, any Material Contract, or enter into any material contract that would constitute a Material Contract if it had been entered into prior to the Signing Date; (o) does not make any capital commitments (not being (i) capital commitments made by the management of the Group in the ordinary course of business or (ii) in connection with placing of instruments) in excess of DKK 10,000,000 in the aggregate; (p) does not make any material change to any of its cash management or capital expenditure practices or practices and procedures with respect to collection of trade accounts receivable, establishment of reserves for uncollectible accounts, accrual of accounts receivable, inventory control, prepayment of expenses, payment of trade accounts payable, accrual of other expenses, deferral of revenue, and acceptance of customer deposits; (q) does not make any loan (other than in the ordinary course of business in accordance with past practice) to any Person; (r) does not make any change in the terms of employment of any director or officer of the Group other than in accordance with agreements in existence on the date hereof or collective bargaining arrangements in existence on the date hereof or in accordance with past practice in respect of contracts that expire during such period; (s) does not: make, change or rescind any material election, claim, surrender or disclaimer relating to Tax, amend any material Group Return, change any annual Tax accounting period or consent to any extension or waiver of the limitations period applicable to any Tax claim, proceedings or assessment; and (t) does not agree or offer (in a form capable of acceptance) or otherwise commit to do any of the foregoing.
Appears in 2 contracts
Sources: Acquisition Agreement, Share Purchase Agreement (Agilent Technologies Inc)
Operations until Closing. 6.1 From 5.1 The Seller undertakes to procure that, in the period from the Signing Date until Closing, except as (i) the Group operates its business in the ordinary course and in accordance with past practice, (ii) the Group takes all reasonable steps to preserve and protect its business, assets and goodwill associated with its business and operations, including its relationships with all material customers, suppliers, distributors and any governmental body in the ordinary and usual course of business and consistent with past practices, and (iii) the Group uses all reasonable efforts to obtain (in consultation with the Buyer) any consents, approvals, or authorizations of any person (which may be conditioned on the consummation of the transactions contemplated by this Agreement) that may be required by any lease for any material leased property, lease for any material asset, or any Material Contract or material permit in connection with the consummation of the transactions contemplated by this Agreement or (other than any Merger Clearance Approvals, which shall be governed by clause 6.5), and the Buyer shall use all reasonable efforts to cooperate with the Buyer’s Group in connection with this sub-clause (iii); provided that in obtaining any such consents, approvals or authorizations, neither the Seller nor the Group shall, without the prior written consent of the Buyer (not to be unreasonably withheld, conditioned or delayed), (a) amend any lease for any leased property, lease for any material asset or material permit, (b) commit to make any payments other than cash payments that will be paid in full prior to Closing or (c) make any monetary concession that would purport to bind the Buyer or its Affiliates (including the Group) after Closing.
5.2 Without limiting the generality of clause 5.1, the Seller will undertakes to take all reasonable efforts to procure that that, in the period from the Signing Date until Closing, except as set forth in Schedule 5.2, the Group continues does not:
(a) conclude, terminate or change the terms or conditions of any agreements with the Seller or the Seller’s Related Parties, except (i) as contemplated by this Agreement or (ii) in the ordinary course of business if such conclusion, termination or change has been Disclosed;
(b) pass any resolutions at general meetings or change its Corporate Documents or other constitutional documents, unless otherwise provided by mandatory statutory provisions, or expressly contemplated by this Agreement and/or to operate facilitate the ordinary course of business in accordance with existing practice during the last twelve (12) months;
(c) create or issue any shares or other equity securities or grant, issue or convert any options, warrants, restricted share units, performance awards, or other rights or securities convertible into or exercisable for shares;
(d) enter into, or terminate any participation in any joint venture, shareholders' partnership or consortium agreement or other similar agreement;
(e) change the Accounting Principles, any accounting practice, change the working capital policy applied by the Company as of the Accounts Date, or revalue its assets or write off or sell or assign debts other than in the ordinary course of business in accordance with past existing practice and that each of during the Group Companies:
last twelve (a12) does not enter into any contract that would inhibit Closing;
(b) does not change its Corporate Documents, unless such change is required by applicable law provided that any such amendments shall be notified in writing to the Buyer in advance, or pass or adopt any resolutions inconsistent with them;
(c) does not issue any of its equity securities or other securities of any nature convertible into its equity securities;
(d) does not create, grant or issue any right to subscribe for or acquire any of its equity securities;
(e) does not declare or make a dividend or other distribution to shareholdersmonths;
(f) does not grant any mortgage, charge or other security over cause any of its material assets required insurance policies to discontinue or give or agree to give any material guarantee or indemnity, except for guarantees continue on materially altered terms and indemnities given in the ordinary course of businessconditions;
(g) does not acquire except as set forth in clause 5.12, incur any financial debt or dispose of any asset (not being an acquisition or disposal in the ordinary course of business and on arm’s length terms) and does not acquire by merger or consolidation with, purchase equity interests of or purchase substantially all of the assets of, or otherwise acquire, any business, or make any investment in, other additional borrowings from any Person or merge or consolidate with any Person, in each case to the extent such acquisition, disposition, investment, merger or consolidation is material to outside the Group as amounting to more than USD 6.0 million in total, provided such debt is repayable at Closing without a wholeprepayment penalty;
(h) does not assignsell, license otherwise dispose of (including through license, lease, assignment or charge encumbrance) or, except as set forth in clause 5.12, create any Third Party Rights over any material properties, equities, or other material asset of its material Intellectual Property the Group amounting to more than EUR 1,000,000 individually or EUR 5,000,000 in total, other than the sale of inventory in the ordinary course of business;
(i) maintains, defends and diligently pursues applications for acquire by any of its means (including by lease or license) any material Intellectual Property asset amounting to more than EUR 1,000,000 individually or EUR 5,000,000 in accordance with past practicetotal;
(j) does not discontinue (i) make any capital expenditure amounting to more than EUR 1,000,000 individually or cease all EUR 5,000,000 in total, other than safety or any material part maintenance capital expenditures in the ordinary course of its business, or dissolve or enter into any plan (ii) for each project set forth on Schedule 5.2(j), subject to the limitations therein, fail to make the capital expenditures in the ranges of liquidation or dissolution or similar proceeding, or resolve to do any of amounts and during the foregoingperiods set forth on Schedule 5.2(j);
(k) maintains in all material respects (i) abandon, disclaim, sell, assign or grant any Third Party Right (including any security interest or exclusive license) in, to or under any Owned Intellectual Property, including by failing to make any filing or payment required to maintain the Group’s insurance policies on the existing terms and conditionsOwned Intellectual Property or (ii) disclose or allow to be disclosed any confidential information or any confidential Group Intellectual Property to any third party;
(l) does not (i) institute any cost of living or other compensation adjustments for any Key Employee or supervisory board member, or any broad-based cost of living or other broad-based compensation adjustments for any Group Employee, (ii) amend the terms and conditions of employment or compensation of any Key Employee or member of the supervisory board (or similar) of any Group Company, or otherwise amend or make any material change to the Accounting Principles by reference to which the Annual Report is drawn up except as required by reason of a concurrent change in IFRS as adopted by the European Union or in the Danish Executive Order No. 1329 terms and conditions of 14 December 2004;
(m) does not undertake employment or discontinue, settle, or propose to settle compensation of any litigation in an amount exceeding DKK 5,000,000;
(n) does not amend in any material way, or terminate, or expressly waive compliance with any material term of or material breaches under, any Material Contract, or enter into any material contract that would constitute a Material Contract if it had been entered into prior to the Signing Date;
(o) does not make any capital commitments (not being (i) capital commitments made by the management of the other Group in the ordinary course of business or (ii) in connection with placing of instruments) in excess of DKK 10,000,000 in the aggregate;
(p) does not make any material change to any of its cash management or capital expenditure practices or practices and procedures with respect to collection of trade accounts receivable, establishment of reserves for uncollectible accounts, accrual of accounts receivable, inventory control, prepayment of expenses, payment of trade accounts payable, accrual of other expenses, deferral of revenue, and acceptance of customer deposits;
(q) does not make any loan (Employee other than in the ordinary course of business in accordance consistent with past practice, (iii) discretionarily increase the amount of any annual or other bonuses, or accelerate the vesting or payment timing of any compensation or benefits payable to any PersonKey Employee or member of the supervisory board (or similar) of any Group Company, or otherwise discretionarily increase the amount of any annual or other bonuses, or accelerate the vesting or payment timing of any compensation or benefits payable to any other Group Employee other than in the ordinary course of business consistent with past practice, (iv) hire or terminate the employment of any Key Employee or supervisory board member, pay any severance or otherwise make any broad-based hiring or firing decisions at any Group Company, or (v) enter into, amend, modify or terminate any Group Benefit Plan or any contract or understanding with an Employee Representative Body or other body representing Group Employees;
(rm) does not make enter into, surrender or materially amend in a manner adverse to the Group or any change Group Company (i) any Material Contract (as defined in the terms Seller’s Warranties) or (ii) with respect to any Group Company or any of employment its Affiliates (including, after the Closing, the Buyer or any of any director or officer of the Group its Affiliates (other than in accordance with agreements in existence the Group)) any contract or legally binding arrangement that (x) restricts such Person’s freedom to do business, (y) imposes on the date hereof such Person any “most favored nation,” exclusivity or collective bargaining arrangements in existence on the date hereof minimum purchase obligations or in accordance with past practice in respect of contracts that expire during (z) restricts such periodPerson’s ability to solicit customers;
(sn) does not: make, revoke or change or rescind any Tax material election, claim, surrender adopt or disclaimer relating to Tax, amend change any material Group Returnmethod of Tax accounting, change any annual Tax accounting period period, file any income or other material amended Tax Return, settle or compromise any material Tax claim or assessment, surrender any right to claim a Tax refund, consent to any an extension or waiver of the limitations period applicable to any material Tax claimclaim or assessment (other than as a result of obtaining an extension of time to file a Tax Return), proceedings enter into any Tax sharing or assessmentallocation agreement (other than any agreement the principal subject matter of which is not Taxes), or fail to timely pay any material Taxes when they become due and payable; andor
(to) does not agree or offer (in a form capable of acceptance) or otherwise commit undertake to do any of the foregoingmatters set out in (a)-(n) above.
5.3 Clause 5.1 and clause 5.2 shall not apply in respect of and shall not operate so as to restrict or prevent:
(a) any matter reasonably undertaken in an emergency or disaster situation with the intention of and to the extent only of those matters strictly required with a view to minimizing any adverse effect of such situation (and of which the Buyer will be promptly notified after the event in writing);
(b) any matter undertaken at the written request or with the written consent of the Buyer (such consent not to be unreasonably withheld or delayed and provided that if the Buyer has not responded within ten (10) Business Days to a written request for consent duly delivered to the Buyer in accordance with clause 19.1, such request shall be deemed to have been granted);
(c) any matter expressly permitted by, or necessary for performance of, this Agreement or necessary for Closing;
(d) providing information required to be provided to any regulatory authority of a Party in the ordinary course of business; and/or
(e) any matter otherwise required by applicable Law.
5.4 The Seller shall, and shall cause the Group to, use commercially reasonable efforts to cause their officers, employees, representatives and advisors, to provide such cooperation as may be reasonably requested in writing (including by email) by the Buyer in connection with the Debt Financing and the consummation thereof, including (i) participating in a reasonable number of due diligence sessions (including accounting and legal diligence sessions) and causing the Group’s auditors to participate in such accounting due diligence sessions, (ii) assisting in reviewing prospectuses, confidential bank memoranda, offering memoranda, ratings agency presentations and similar documents, (iii) providing as promptly as reasonably practicable (and no later than September 30, 2021) to the Buyer and the Financing Sources the information set forth on Schedule 5.4 (the “Required Financial Information”), (iv) providing authorization letters to the Financing Sources authorizing the distribution of information to other prospective lenders and containing a customary representation to the Financing Sources and the lenders that the information concerning the Group contained in any confidential information memorandum contemplated by the Debt Commitment Letter does not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they are made, not misleading, (v) providing the Financing Sources and any other financing sources in connection with a financing by the Buyer with customary information required by regulatory authorities with respect to the Group in connection with applicable “know your customer” and anti-money laundering rules and regulations, including the USA PATRIOT ACT, Title III of Pub. L. 107-56 (signed into law October 26, 2001), and (vi) consenting to the reasonable use of the Group’s trademarks, service marks or logos in connection with the Debt Financing; provided, however, that the actions of the Group in the foregoing clauses (i) through (vi) do not (A) unreasonably interfere with the ongoing operations of Seller or the Group or (B) require the Seller, the Group or their representatives and advisors (pursuant to engagements with the Group) to pay any out-of-pocket fees or expenses, or incur any liability, prior to the Closing that are not promptly thereafter reimbursed or indemnified by the Buyer in accordance with clause 5.7.
5.5 If requested by Buyer no less than ten (10) days prior to the Closing Date, as of the Closing Date (but conditioned upon the occurrence of the Closing), the Seller shall cause the Group Company to terminate or cause to be terminated any Group Benefit Plan that is a US Tax-qualified defined contribution plan. The Parties shall cooperate in good faith prior to the Closing with respect to the preparation and execution of all documentation necessary to effect the foregoing termination, and the applicable Group Company shall provide Buyer a reasonable opportunity (subject to the limited time period available prior to the Closing Date) to review and comment on all such documentation.
5.6 The Seller shall reasonably cooperate with the Buyer, at Buyer’s sole cost and expense, in the Buyer’s efforts to obtain in respect of the US Owned Properties: (i) as-built ALTA surveys from a licensed surveyor, and (ii) owner’s or lender’s title insurance policies with extended coverage ensuring the Buyer’s interest in the applicable Owned Properties free and clear of all Financial Encumbrances and other material Third Party Rights which first arise or are incurred following the Signing Date (for the avoidance of doubt, except for those arising or occurring as a result of the Refinancing set forth in clause 5.12) and are within the Seller’s reasonable control to discharge, in an insured amount determined by the Buyer from a reputable title company of the Buyer’s choosing. The Seller’s obligations with respect to this clause 5.6 shall include providing reasonable and customary title affidavits and indemnities as may be reasonably requested by such title insurance company in a form reasonably acceptable to the Seller. The Seller shall use commercially reasonable efforts to (i) diligently pursue the construction disclosed on Schedule 10.1 to lien-free completion on the Candler, North Carolina Site in accordance with all applicable Laws and in accordance with the requirements of the Asheville Commence Park Association and (ii) obtain the consent from the Asheville Commerce Park Association to same.
5.7 The Buyer shall, promptly upon the written request of the Seller, reimburse the Seller and/or the Group, for all reasonable and documented out-of-pocket costs incurred by the Seller and/or the Group (including such costs payable to the Seller’s or the Group’s external representatives or advisors) in connection with the cooperation provided for in clauses 5.4 and 5.6 (such reimbursement to be made promptly and in any event within three (3) Business Days of delivery of reasonably acceptable documentation evidencing such expenses) and shall indemnify and hold harmless the Seller, the Group, their Related Parties and their officers, employees and other representatives and advisors from and against any and all liabilities suffered or demands, claims, lawsuits, liabilities and damages, and reasonable costs and expenses (including settlement costs and expenses and any and all other related fees, costs and expenses, including attorneys’ fees and expenses) suffered, incurred or paid by them in connection with or arising out of the Debt Financing, the arrangement of the Debt Financing and any information utilized in connection therewith (other than to the extent such damages and liabilities arise out of information provided by the Seller, any Group Company or any of their Affiliates in material breach of the Seller’s Warranties) and the cooperation provided for in clauses 5.5 and 5.6; provided that the reimbursement and indemnification obligations of the Buyer under this clause 5.7 with respect to clause 5.6(ii) shall not include any costs incurred by the Seller and/or the Group to repay or otherwise satisfy any Financial Encumbrances or Third Party Rights that first arise or are incurred following the Signing Date (for the avoidance of doubt, except for those arising or occurring as a result of the Refinancing set forth in clause 5.12).
5.8 Prior to the initiation of the requisite stockholder approval procedure under clause 5.9, to the extent any current or former Group Employee, officer, director or service provider of the Group has any right to receive any payments or benefits that could constitute “parachute payments” under Section 280G of the US Code, the Seller shall, or shall cause the applicable Group Company to, seek to obtain a waiver of the right to receive payments that could constitute “parachute payments” under Section 280G of the US Code (a “Parachute Payment Waiver”) from each such current or former Group Employee, officer, director or service provider of the Group whom the Company reasonably believes is a “disqualified individual” (within the meaning of Section 280G of the US Code), as determined immediately prior to the initiation of the requisite stockholder approval procedure under clause 5.9, and who the Company believes might otherwise receive, have received, or have t
Appears in 1 contract
Operations until Closing. 6.1 8.1 From the Signing Date until Closing, except as required by the transactions contemplated by this Agreement Agreement, Schedule 6.8, or with the Buyer’s prior written consent (not to be unreasonably withheld, conditioned or delayed), the Seller Sellers will procure that the Group continues to operate in the ordinary course of business in accordance with past practice and that each of the Group CompaniesCompany:
(a) does not enter into any contract that would inhibit Closing;
(b) does not change its Corporate Documents, unless such change is required by applicable law provided that any such amendments shall be notified in writing to the Buyer in advance, or pass or adopt any resolutions inconsistent with themLaw;
(cb) does not issue any of its equity securities or other securities of any nature convertible into its equity securities;
(dc) does not create, grant or issue any right to subscribe for or acquire any of its equity securities;
(e) does not declare or make a dividend or other distribution to shareholders;
(fd) does not grant any mortgage, charge or other security over any of its material assets or give or agree to give any material guarantee or indemnity, except for guarantees and indemnities given in the ordinary course of business;
(ge) does not acquire or dispose of any asset (not being an acquisition or disposal in the ordinary course of business and on arm’s length terms) and does not acquire by merger or consolidation with, purchase equity interests of or purchase substantially all of the assets of, or otherwise acquire, any business, or make any investment in, any Person or merge or consolidate with any Person, in each case to the extent such acquisition, disposition, investment, merger or consolidation is material to the Group as a whole;
(h) does not assign, license or charge any of its material Intellectual Property other than in the ordinary course of business;
(i) maintains, defends and diligently pursues applications for any of its material Intellectual Property in accordance with past practice;
(j) does not discontinue or cease all or any material part of its business, or dissolve or enter into any plan of liquidation or dissolution or similar proceeding, or resolve to do any of the foregoing;
(kf) maintains in all material respects the Group’s insurance policies on the existing terms and conditions;
(lg) does not make any material change to the Accounting Principles by reference to which the Annual Report is drawn up except as required by reason of a concurrent change in IFRS as adopted by the European Union or in the Danish Executive Order No. 1329 of 14 December 2004Policies;
(m) does not undertake or discontinue, settle, or propose to settle any litigation in an amount exceeding DKK 5,000,000;
(nh) does not amend in any material way, or terminate, or expressly waive compliance with any contract which is material term to the Group as a whole and, in particular, none of or material breaches under, any the Material Contract, or Agreements (as defined in Schedule 15.1);
(i) does not enter into any material contract that would constitute a Material Contract if it had been entered into prior agreements relating to the Signing Dateborrowing of money;
(oj) does not make any loans, advances or capital contributions to, or investments in, any other Person other than loans, advances or capital contributions, or investments by the Company or any of the Subsidiaries to any Subsidiary;
(k) does not make inventory purchases outside the ordinary course;
(l) does not make any capital commitments expenditures in excess of USD 25,000 in the aggregate that are payable after the Closing Date;
(not being (im) makes capital commitments made by the management of the Group and operating expenditures if and when required in the ordinary course of business consistent with past practice and as contemplated Schedule 6.8 and does not delay any such capital or (ii) in connection with placing of instruments) in excess of DKK 10,000,000 in operating expenditures to a period after the aggregateClosing Date;
(pn) does not make take any material change other actions the purpose of which is to any increase the Cash of its cash management the Group Companies as of the Effective Date or capital expenditure practices or practices and procedures with respect to collection of trade accounts receivable, establishment of reserves for uncollectible accounts, accrual of accounts receivable, inventory control, prepayment of expenses, payment of trade accounts payable, accrual of other expenses, deferral of revenue, and acceptance of customer depositsotherwise artificially increase the Closing Purchase Price;
(q) does not make any loan (other than in the ordinary course of business in accordance with past practice) to any Person;
(ro) does not make any change in the terms of employment of any director director, officer or officer Key Employee of the Group (as defined in Schedule 15.1);
(p) other than in accordance with agreements in existence on the date hereof or hereof, collective bargaining arrangements in existence on the date hereof or in accordance with past practice in respect of contracts that expire during such periodprior practice;
(sq) complies with and fulfils any obligations pursuant to applicable Laws, collective bargaining agreements etc. to inform and/or negotiate with trade unions, any employee representative bodies and/or its employees, with respect to the transactions contemplated by this Agreement;
(r) does not: make, not make or change or rescind any material Tax election, claim, surrender or disclaimer relating to Tax, amend any material Group Return, change any annual Tax accounting period or consent to any extension or waiver of the limitations period applicable to any Tax claim, proceedings claim or assessment;
(s) does not institute any material litigation, arbitration or settle or waive any material claim or right other than (i) in relation to the collection of trade debts, (ii) in the ordinary course of business, or (iii) as instructed by its insurance providers;
(t) complies with the share purchase agreement between IFU and the Company regarding the acquisition of IFU’s shares in Universal Robots (Shanghai) Co. Ltd. and takes all actions necessary in order to give effect to the share transfers contemplated thereunder, in particular in order to obtain all public approvals required in connection with such share transfer; and
(tu) does not agree or offer (in a form capable of acceptance) or otherwise commit to do or, as the case may be, not to do any of the foregoing.
Appears in 1 contract
Operations until Closing. 6.1 From The Majority Sellers undertake to the Buyer within their powers as shareholders in the Company to procure that, in the period from the Signing Date until Closing, except as unless specifically set out in this Agreement, required by the transactions contemplated by this Agreement or Law and/or with the Buyer’s written prior written consent from the Buyer (not to be unreasonably withheld, conditioned or delayedthe extent legally permissible), the Seller will procure that the Group continues to operate in the ordinary course of business in accordance with past practice and that each of the Group CompaniesGroup:
(a) does not enter into any contract that would inhibit Closingoperates its business in accordance with existing practice and in the Ordinary Course of Business;
(b) does not pass any resolutions at general meetings or change its Corporate Documents, unless such change is required by applicable law provided that any such amendments shall be notified in writing to the Buyer in advance, or pass or adopt any resolutions inconsistent with them;
(c) does not issue any of its equity securities or other securities of any nature convertible into its equity securities;
(d) does not create, grant or issue any right to subscribe for or acquire any of its equity securities;
(e) does not declare or make a dividend or other distribution to shareholders;
(f) does not grant any mortgage, charge or other security over any of its material assets or give or agree to give any material guarantee or indemnity, except for guarantees and indemnities given in the ordinary course of business;
(g) does not acquire or dispose of any asset (not being an acquisition or disposal in the ordinary course of business and on arm’s length terms) and does not acquire by merger or consolidation with, purchase equity interests of or purchase substantially all of the assets of, or otherwise acquire, any business, or make any investment in, any Person or merge or consolidate with any Person, in each case to the extent such acquisition, disposition, investment, merger or consolidation is material to the Group as a whole;
(h) does not assign, license or charge any of its material Intellectual Property other than in the ordinary course of business;
(i) maintains, defends and diligently pursues applications for any of its material Intellectual Property in accordance with past practice;
(j) does not discontinue or cease all or any material part of its business, or dissolve or enter into any plan of liquidation or dissolution or similar proceeding, or resolve to do any of the foregoing;
(k) maintains in all material respects the Group’s insurance policies on the existing terms and conditions;.
(d) does not conclude, terminate or change the terms or conditions of any Material Agreements as defined in Majority Sellers’ Warranties or any agreements with or for the benefit of any Majority Seller or any Majority Sellers’ Related Parties;
(e) does not incur any financial debt or enter into any other additional borrowings or incur any other indebtedness other than in the Ordinary Course of Business;
(f) does not distribute, or authorise or declare the distribution of, any dividends or other payment out of its funds to any Majority Seller or any Majority Sellers’ Related Parties, unless explicitly provided for in the Annual Reports;
(g) does not dispose of any material assets used or required for the operation of its business;
(h) does not allot or agree to allot any shares or other securities or repurchase, redeem or agree to repurchase or redeem any of the shares, except as explicitly set out in this Agreement;
(i) does not make, or agree to make, material alterations to the terms of employment (including benefits) of any of its Key Employees as defined in Majority Sellers’ Warranties;
(j) does not provide or agree to provide any non-contractual benefit to any director, officer, employee or their dependants;
(k) does not create any Third Party Rights over any of its assets or its undertaking;
(l) does not make institute, settle or agree to settle any material change legal proceedings relating to the Accounting Principles by reference to which the Annual Report is drawn up its business, except as required by reason of a concurrent change in IFRS as adopted by the European Union or debt collection in the Danish Executive Order No. 1329 Ordinary Course of 14 December 2004Business;
(m) does not undertake grant, modify, agree to terminate or discontinue, settle, permit the lapse of any Intellectual Property Rights or propose enter into any agreement relating to settle any litigation in an amount exceeding DKK 5,000,000such rights;
(n) does not amend in incur any material way, or terminate, or expressly waive compliance with any material term of or material breaches under, any Material Contract, or enter into any material contract that would constitute a Material Contract if it had been entered into prior liability to the Signing DateSellers, other than trading liabilities incurred in the Ordinary Course of Business;
(o) does not make enter into any capital commitments (not being (ior modify any subsisting) capital commitments made by the management of the Group in the ordinary course of business agreement with any trade union or (ii) in connection with placing of instruments) in excess of DKK 10,000,000 in the aggregateany agreement that relates to any works council;
(p) does not make any material change to any of the accounting procedures or principles by reference to which its cash management or capital expenditure practices or practices and procedures with respect to collection of trade accounts receivable, establishment of reserves for uncollectible accounts, accrual of accounts receivable, inventory control, prepayment of expenses, payment of trade accounts payable, accrual of other expenses, deferral of revenue, and acceptance of customer depositsare drawn up;
(q) does not make enter into any loan transactions between any Group Company and the Seller (or any Affiliate of the Seller) other than transactions on arm’s length terms and in the ordinary course Ordinary Course of business in accordance with past practice) to any Person;Business; or
(r) does not make any effect or otherwise take steps to effect the involuntary liquidation of the Company or another change in to the terms of employment of any director or officer structure of the Group other than in accordance with agreements in existence on which adversely affects (or may reasonably be expected to adversely affect) the date hereof or collective bargaining arrangements in existence on the date hereof or in accordance with past practice in respect of contracts that expire during such period;
(s) does not: make, change or rescind any material election, claim, surrender or disclaimer relating to Tax, amend any material Group Return, change any annual Tax accounting period or consent to any extension or waiver of the limitations period applicable to any Tax claim, proceedings or assessment; and
(t) does not agree or offer (in a form capable of acceptance) or otherwise commit to do any of the foregoingBuyer.
Appears in 1 contract