Common use of Post-Closing Restructuring Clause in Contracts

Post-Closing Restructuring. 7.3.1 Taking account of the strategic and business rationale of the Offer, the Company acknowledges that the terms of the Offer are predicated on, and the importance for the Buyer to achieve, the acquisition of 100% of the Company Shares or the entirety of the Company's assets and operations. This importance is based, inter alia, on: (a) the fact that having a single shareholder and operating without a public listing increases the Group's and the Buyer's ability to achieve the goals of the Transactions and implement the actions of its strategy and reduces the Group's costs; (b) the ability of the Company and the Buyer to terminate the listing of the Company Shares from the NYSE and the Frankfurt Stock Exchange, and all resulting cost savings therefrom; and (c) the ability to achieve an efficient capital structure (both from a tax and financing perspective), which would, amongst others, facilitate intercompany transactions and dividend distributions. 7.3.2 In light of the above and the fact that the Buyer's willingness to pay the Offer Consideration and pursue the Transactions is predicated on the acquisition of 100% of the Company Shares or the entirety of the Company's assets and operations and the willingness of the Buyer to have an Acceptance Threshold of less than 95%, the Company expresses an interest in and its support for the Merger and Liquidation or Asset Sale and Liquidation (as applicable) and the Top Up Option as contemplated in clause 7.3.3 and the Post-Closing Measures as contemplated in clause 7.7. 7.3.3 The Top Up Option shall be exercisable immediately once, in whole or in part upon and promptly following Settlement, and subject to the Back-End Resolution having been adopted. The Top Up Option shall terminate on the second Business Day after the Settlement Date. In the event that the Offeror Top Up Affiliate wishes to exercise the Top Up Option, it shall so notify the Company in writing (the "Top Up Option Exercise Notice"), and shall set forth in such Top Up Option Exercise Notice the number of Company Ordinary Shares for which the Offeror Top Up Affiliate exercises the Top Up Option and subscribes for. Upon receipt of the Top Up Option Exercise Notice, the Company shall immediately, and in any event on the Settlement Date, issue the relevant number of Company Ordinary Shares to the Offeror Top Up Affiliate. At the Subsequent EGM, the Offeror Top Up Affiliate shall not vote on the Company Ordinary Shares it acquired through exercise of the Top Up Option. At any other general meeting of the Company, the votes on such shares shall be cast proportional to the votes in favour and against any proposal cast on the other Company Ordinary Shares, except that the Offeror Top Up Affiliate may decide in its discretion how to vote on such shares with respect to any proposals to appoint, suspend or dismiss members of the Boards. 7.3.4 The Buyer shall cause the Offeror Top Up Affiliate to pay the Top Up Amount (i) in cash, (ii) by contribution in kind of a promissory note issued by the Buyer or any of its Subsidiaries, or (iii) by any combination of the foregoing. The Company shall or shall cause Company Newco, as the case may be, to cooperate with the Offeror Top Up Affiliate and execute or cause to be executed any documents and take or cause to be taken any other actions as may be reasonably requested by the Offeror Top Up Affiliate to effect on the Settlement Date the issuance of the Company Ordinary Shares in connection with the exercise of the Top Up Option, and record such issuance in the Company's shareholders register on the Settlement Date. 7.3.5 After and subject to (i) the Merger Resolution having been adopted and (ii) Settlement having occurred, the Buyer may determine to, or, if the Top Up Option has been exercised, in whole or in part, must implement the Merger and Liquidation, in which case: (a) The Company shall procure that the Company, Company Newco and Company Newco Sub shall effect the Merger in accordance with the provisions set forth in the Merger Proposal immediately after adoption of the Merger Resolution. The Buyer shall procure that the Offeror Top Up Affiliate shall, only vote the Company Newco Class A Shares allotted for the Company Ordinary Shares issued pursuant to the exercise of the Top Up Option in favour and against any proposal on the Company Newco Class A Shares proportional to the votes in favour and against such proposal cast on the other Company Newco Class A Shares, except that the Offeror Top Up Affiliate may decide in its discretion how to vote on such shares with respect to any proposals to appoint, suspend or dismiss members of the board of Company Newco; (b) The Buyer shall procure that the Offeror makes to Company Newco Sub a cash payment (the "Cash Payment") in an amount equal to (x) the Offer Consideration multiplied by (y) the total number of Company Shares (whereby, for the avoidance of doubt, a Fractional Share counts as one-twenty-seventh (1/27th)) held beneficially or of record by the Minority Shareholders minus (z) any cash paid pursuant to clause 7.3.4 (the amount obtained by multiplying (x) and (y), the "Cash Distribution Amount") in exchange for a loan note substantially in the form as included in Schedule 7-A (the "Company Newco Sub Note"), immediately after the Merger becoming effective. (c) The Company shall: