PRE-COMPLETION COVENANTS. 1. Conduct of business before Completion 1. During the period from the date of this Agreement until Completion, Ring shall procure that the Company carries on its business in the ordinary course consistent with past practice and that the Company shall: (A) use its reasonable efforts to maintain relationships with suppliers, customers and others having business or professional relationships with the Company; (B) continue to pay its creditors and collect debts in the ordinary course of business and within the usual terms of payment of the relevant creditors and debtors; (C) maintain all insurance policies or, without prejudice to Clause 5.1.2, provide for substitute insurance policies on equally beneficial terms; (D) use commercially reasonable efforts to maintain all licences, consents and authorizations necessary to carry on its business (including the Designation) and comply with the terms and conditions of such licences, consents and authorizations necessary to carry on its business (including the Designation) and applicable Law; (E) maintain all accounting and other records in the ordinary course; (F) maintain through Completion, its Cash Balances at an amount of at least EUR 2,500,000; and (G) continue to meet its pension funding and social insurance obligations and contributions in respect of its employees. 2. During the period from the date of this Agreement until Completion, Ring shall procure that without the prior written consent of the Purchaser, the Company shall not: (A) amend its articles of association or other constitutional documents; (B) reclassify, split, consolidate, repay, recapitalize, purchase or redeem any of its own shares; (C) issue any shares, securities convertible into shares or other profit sharing instruments or any rights or options to subscribe for or acquire any shares or such securities or other instruments; Exhibit 2.1 (D) create any Encumbrance or give any guarantee, joint liability undertaking, right of set-off or other assurance for the benefit of any third party; (E) declare, make or pay any dividend or any other distribution or payment of capital, profits or reserves of the Company whether in cash or in kind (including in shares) other than the Permitted Dividends; (F) change the Current Accounting Rules and Policies, other than as required by a change of Law, provided that prior written notice has been provided to the Purchaser; (G) acquire or dispose of, or grant or extend any option to acquire or dispose of, any shares or other equity interest in any company, or any business or any material asset (including with respect to the Shares), other than stock-in-trade in the ordinary course of business and consistent with past practice; (H) merge or consolidate with any other person or business, enter into any partnership, consortium, association or joint venture or incorporate any subsidiaries; (I) make any material change to the organization, scope or nature of its business (including any expansion outside of the Netherlands or any activity that is not explicitly permitted under the Designation); (J) borrow any amount or incur any financial indebtedness, in excess of EUR 100,000 in aggregate; (K) lend any amounts to any person, other than to the Sellers provided that such amounts are settled via Permitted Dividends or repaid on or prior to Completion; (L) enter into any agreement, arrangement or commitment with a Seller, its Affiliates or its Related Parties; (M) enter into or incur any capital expenditure commitment or any other actual or contingent liability in excess of EUR 1,000,000 in aggregate; (N) enter into, terminate or amend any agreement or commitment representing a value of more than EUR 100,000 on an annual basis or more than EUR 250,000 over the entire term of the agreement or commitment (including any supply agreement with a coffee shop); (O) offer price reductions or discounts or enter into any unusual or onerous agreement, arrangement or commitment in each case other than in the ordinary course of business and consistent with past practice as specifically disclosed in the Disclosure Letter; (P) enter into any material leasing, hire, hire purchase or other agreement for payment on deferred terms; Exhibit 2.1 (Q) engage any employee that would directly report to the Director, dismiss any Key Employee or any employee who reports to the Director as of the date hereof, or make any material change to the remuneration or other terms and conditions of engagement of any Key Employee, any employee who reports to the Director as of the date hereof or the general work force of the Company, other than as required by applicable Law or any applicable collective bargaining agreement; (R) change any pension scheme or grant or create any additional retirement or disability benefit other than as required by applicable Law or any applicable collective bargaining agreement; (S) enter into, change or terminate any collective bargaining agreement or other arrangements with any trade union or works council; (T) initiate or conduct any legal proceedings, settle any dispute or waive any claim, in each case representing an amount of more than EUR 250,000, other than the collection of debts arising in the ordinary course of business and consistent with past practice; or (U) plan, agree or commit to agree to any of the foregoing. 3. During the period from the date of this Agreement until Completion, Ring shall comply with the provisions of paragraph 2 of Schedule 12 (Tax Matters). 4. Notwithstanding anything to the contrary in this Agreement, during the period from the date of this Agreement until Completion, Ring shall, and shall procure that the Company shall, except to the extent otherwise agreed between Ring and the Purchaser in writing, in relation to the Odor Issue: (A) keep the Purchaser promptly and fully informed of any developments regarding the Odor Issue; (B) promptly inform the Purchaser of any communication or correspondence received from the Governmental Authorities regarding the Odor Issue and, to the extent legally permissible, promptly provide the Purchaser with copies of any such communication or correspondence received from any Governmental Authority or other third party in relation thereto, in each case except for communication or correspondence of pure administrative nature; (C) timely respond to any communication or correspondence received from the Governmental Authorities regarding the Odor Issue, and supply any available information and documents that may reasonably be requested by a Governmental Authority in relation to the Odor Issue, provided that the Purchaser will first be provided the opportunity to review and provide input on such draft response or information and documents within five (5) Business Days following receipt of such draft response or information and documents, which input will be reasonably considered; Exhibit 2.1 (D) upon the Purchaser's request, schedule and attend a meeting with the Purchaser and its representatives to discuss the status of the Odor Issue, which meeting shall, except in case of urgency, occur not more than once a week; (E) ensure that, to the extent permitted by the relevant Governmental Authority, the Purchaser is given the opportunity to attend and participate in any meetings, discussions or hearings with (representatives of) the relevant Governmental Authorities in connection with the Odor Issue, and in any event keep the Purchaser promptly informed of the content and outcome of any such meetings, discussions or hearings; and (F) take any other commercially reasonable action, including to defend, contest and resist any proceedings in case proceedings are initiated or threatened by any Governmental Authority or other person and to have vacated, lifted, reversed or overturned any Order, whether temporary, preliminary or permanent, with respect to the Odor Issue, including timely lodging, and diligently pursuing, any and all appeals against any administrative fines imposed on the Company in connection with the Odor Issue, provided that Ring shall procure that the Company shall inform and consult with the Purchaser in relation to any actions taken in relation to any Order or proceedings initiated or threatened and in no event agree to or accept any commitment, condition, undertaking or any other obligation, other than with the prior written approval of the Purchaser (not to be unreasonably delayed or withheld). 5. Clauses 5.1.1 to (including) 5.1.3 shall not operate so as to restrict or prevent: (A) any matter reasonably undertaken in the case of an emergency or disaster of which the consequences are imminent, to the extent strictly required to minimise or mitigate any material adverse effect on the business of the Company, provided that at all times Ring shall, and shall procure that the Company shall (i) use its best efforts to contact the Purchaser prior to taking any such action, (ii) promptly notify and fully inform the Purchaser of the relevant circumstances, considerations and actions and (iii) provide such information as reasonably requested by the Purchaser; (B) completion or performance of any binding obligation undertaken by the Company prior to the date of this Agreement, which has been specifically disclosed in the Disclosure Letter; (C) any matter specifically contemplated by this Agreement; (D) any matter specifically disclosed against Clause 5.
Appears in 1 contract
Sources: Share Sale and Purchase Agreement (Cronos Group Inc.)
PRE-COMPLETION COVENANTS. 1. Conduct of business before Completion
16.1. During the period from the date of this Agreement Signing Date until Completionthe Completion Date, Ring the Seller shall procure that each of the Company Group Companies;
6.1.1. carries on its business in the ordinary course course, consistent with past practice and that the Company shall:
(A) use its reasonable efforts to maintain relationships in accordance with suppliers, customers applicable laws and others having business or professional relationships with the Companyregulations;
(B) continue to pay its creditors and collect debts in the ordinary course of business and within the usual terms of payment of the relevant creditors and debtors;
(C) maintain all insurance policies or, without prejudice to Clause 5.1.2, provide for substitute insurance policies on equally beneficial terms;
(D) use commercially reasonable efforts to maintain all licences, consents and authorizations necessary to carry on its business (including the Designation) and comply with the terms and conditions of such licences, consents and authorizations necessary to carry on its business (including the Designation) and applicable Law;
(E) maintain all accounting and other records in the ordinary course;
(F) maintain through Completion, its Cash Balances at an amount of at least EUR 2,500,000; and
(G) continue to meet its pension funding and social insurance obligations and contributions in respect of its employees.
26.1.2. During the period from the date of this Agreement until Completion, Ring shall procure that without the prior written consent of the PurchaserPurchasers, the Company such consent not to be unreasonably withheld or delayed, and except as contemplated by this Agreement, shall notnot take any action to:
(A) amend its articles of association or other constitutional documentsassociation;
(B) reclassify, split, consolidate, repay, recapitalize, purchase pass or redeem adopt any resolution of its own sharesshareholder or any class of shareholders, whether in general meeting or otherwise;
(C) issue settle any shares, securities convertible into shares existing or other profit sharing instruments initiate any new litigation exceeding EUR 150,000 in each case excluding any existing or new litigation or any rights or options disputes in relation to subscribe for or acquire any shares or such securities or other instruments; Exhibit 2.1customs;
(D) create any Encumbrance change the accounting procedures, principles or give any guarantee, joint liability undertaking, right of set-off or other assurance for the benefit practices of any third partyGroup Company;
(E) declare, make issue any shares or pay issue any dividend instrument that gives its holder the right to acquire or any other distribution or payment of capital, profits or reserves of the Company whether in cash or in kind (including in subscribe for shares) other than the Permitted Dividends;
(F) change the Current Accounting Rules and Policies, other than as required by a change of Law, provided that prior written notice has been provided to the Purchaser;
(G) acquire or dispose of, or grant or extend any option to acquire or dispose of, any shares or other equity interest in any company, or of any business or any other material asset (including with respect to the Shares), other than stock-in-trade in the ordinary course of business and consistent with past practice;
(H) merge or consolidate with any other person or business, enter into any partnership, consortium, association or joint venture or incorporate any subsidiaries;
(I) make any material change to the organization, scope or nature of its business (including any expansion outside of the Netherlands or any activity that is not explicitly permitted under the Designation);
(J) borrow any amount or incur any financial indebtedness, in excess of EUR 100,000 in aggregate;
(K) lend any amounts to any person, other than to the Sellers provided that such amounts are settled via Permitted Dividends or repaid on or prior to Completion;
(L) enter into any agreement, arrangement or commitment with a Seller, its Affiliates or its Related Parties;
(M) enter into or incur any capital expenditure commitment or any other actual or contingent liability in excess of EUR 1,000,000 in aggregate;
(N) enter into, terminate or amend any agreement or commitment representing a value of more than EUR 100,000 on an annual basis or more than EUR 250,000 over the entire term of the agreement or commitment (including any supply agreement with a coffee shop);
(O) offer price reductions or discounts or enter into any unusual or onerous agreement, arrangement or commitment in each case other than in the ordinary course of business and consistent with past practice as specifically disclosed in the Disclosure Letterbusiness;
(PG) enter into any material leasing, hire, hire purchase or other agreement for payment on deferred terms; Exhibit 2.1
(Q) engage any employee that would directly report to the Director, dismiss any Key Employee or any employee who reports to the Director as of the date hereof, or make any material change changes to the remuneration or other terms and conditions of engagement of any Key Employee, any employee who reports to with an annual gross salary of EUR 40,000 or more at the Director as of the date hereof or the general work force of the Company, Signing Date other than as required by applicable Law or any applicable collective bargaining agreement;
(R) change any pension scheme or grant or create any additional retirement or disability benefit other than as required by applicable Law or any applicable collective bargaining agreement;
(S) enter into, change or terminate any collective bargaining agreement or other arrangements with any trade union or works council;
(T) initiate or conduct any legal proceedings, settle any dispute or waive any claim, in each case representing an amount of more than EUR 250,000, other than the collection of debts arising in the ordinary course of business and consistent with past practice; business;
(H) grant or (U) planissue any Encumbrance on any asset, agree property or commit to agree to share.
6.2. If the Purchasers have not responded in writing within 5 Business Days after receipt of a request for consent by the Seller or any of the foregoingGroup Companies in respect of any of the actions in Clause 6.1.2, the Purchasers shall be deemed to have agreed to the proposed action.
36.3. During the period from the date of this Agreement until Completion, Ring shall comply with the provisions of paragraph 2 of Schedule 12 (Tax Matters).
4. Notwithstanding anything to the contrary in this Agreement, during the period from the date of this Agreement until Completion, Ring shall, and The Seller shall procure that prior to or on the Company shallCompletion Date, except prior to the extent otherwise agreed transfer of the Shares to the Purchasers the existing management services agreement between Ring the Group Companies and the Purchaser in writingSeller shall be terminated. On the Completion Date, in relation to the Odor Issue:
(A) keep the Purchaser promptly Seller will confirm and fully informed of any developments regarding the Odor Issue;
(B) promptly inform the Purchaser of any communication or correspondence received from the Governmental Authorities regarding the Odor Issue andacknowledge, to the extent legally permissible, promptly provide the Purchaser with copies of any such communication or correspondence received from any Governmental Authority or other third party in relation thereto, in each case except for communication or correspondence of pure administrative nature;
(C) timely respond to any communication or correspondence received from the Governmental Authorities regarding the Odor Issue, and supply any available information and documents that may reasonably be requested by a Governmental Authority in relation to the Odor Issue, provided that the Purchaser will first be provided the opportunity to review and provide input on such draft response or information and documents within five (5) Business Days following upon receipt of the at the Completion Date outstanding amounts under such draft response or information and documentsmanagement services agreement, which input will be reasonably considered; Exhibit 2.1
(D) upon the Purchaser's request, schedule and attend a meeting with the Purchaser and its representatives to discuss the status that none of the Odor Issue, which meeting shall, except in case of urgency, occur not more than once a week;
(EGroup Companies has any obligation(s) ensure that, to vis á vis the extent permitted by the relevant Governmental Authority, the Purchaser is given the opportunity to attend and participate in Seller or any meetings, discussions or hearings with (representatives of) the relevant Governmental Authorities in connection with the Odor Issue, and in any event keep the Purchaser promptly informed member of the content and outcome of any such meetings, discussions or hearings; and
(F) take any other commercially reasonable action, including to defend, contest and resist any proceedings in case proceedings are initiated or threatened by any Governmental Authority or other person and to have vacated, lifted, reversed or overturned any Order, whether temporary, preliminary or permanent, Seller’s Group with respect to such management services agreement or the Odor Issue, including timely lodging, and diligently pursuing, any and all appeals against any administrative fines imposed on the Company in connection with the Odor Issue, provided that Ring shall procure that the Company shall inform and consult with the Purchaser in relation to any actions taken in relation to any Order or proceedings initiated or threatened and in no event agree to or accept any commitment, condition, undertaking or any other obligation, other than with the prior written approval of the Purchaser (not to be unreasonably delayed or withheld)termination thereof.
5. Clauses 5.1.1 to (including) 5.1.3 shall not operate so as to restrict or prevent:
(A) any matter reasonably undertaken in the case of an emergency or disaster of which the consequences are imminent, to the extent strictly required to minimise or mitigate any material adverse effect on the business of the Company, provided that at all times Ring shall, and shall procure that the Company shall (i) use its best efforts to contact the Purchaser prior to taking any such action, (ii) promptly notify and fully inform the Purchaser of the relevant circumstances, considerations and actions and (iii) provide such information as reasonably requested by the Purchaser;
(B) completion or performance of any binding obligation undertaken by the Company prior to the date of this Agreement, which has been specifically disclosed in the Disclosure Letter;
(C) any matter specifically contemplated by this Agreement;
(D) any matter specifically disclosed against Clause 5.
Appears in 1 contract
PRE-COMPLETION COVENANTS. 1. Conduct of business before Completion
1. During the period from the date of this Agreement until Completion, Ring shall procure that the Company carries on its business in the ordinary course consistent with past practice and that the Company shall:
(A) use its reasonable efforts 7.1 Subject to maintain relationships with suppliers, customers and others having business or professional relationships with the Company;
(B) continue to pay its creditors and collect debts in the ordinary course of business and within the usual terms of payment of the relevant creditors and debtors;
(C) maintain all insurance policies or, without prejudice to Clause 5.1.2, provide for substitute insurance policies on equally beneficial terms;
(D) use commercially reasonable efforts to maintain all licences, consents and authorizations necessary to carry on its business (including the Designation) and comply with the terms and conditions of such licences, consents and authorizations necessary to carry on its business (including the Designation) and applicable Law;
(E) maintain all accounting clause 7.3 and other records in the ordinary course;
(F) maintain through Completion, its Cash Balances at an amount of at least EUR 2,500,000; and
(G) continue to meet its pension funding and social insurance obligations and contributions in respect of its employees.
2. During the period from the date of this Agreement until Completion, Ring shall procure that without than with the prior written consent of the PurchaserPurchaser (such consent not to be unreasonably conditioned, withheld or delayed), until the Company First Completion Date (and in respect of any Deferred Target Subsidiary only, until the relevant Deferred Completion Date) the Parent undertakes that it shall notprocure that: (i) the business plan and budget of the Kantar Business (taken as a whole) shall not be materially amended or varied; and (ii) in respect of any member of the Target Group other than any Non-Wholly Owned Target Subsidiary:
(Aa) amend the business of the Target Companies and the Target Subsidiaries is carried on in all material respects in the ordinary course of its articles of association or other constitutional documents;day to day business; and
(Bb) reclassify, split, consolidate, repay, recapitalize, purchase no Target Company or redeem Target Subsidiary shall:
(i) make any increase in or reduction of its own shares;
(C) issue share or loan capital or grant any shares, securities convertible into shares or other profit sharing instruments or any rights or options option to subscribe for or acquire any shares of its share or such securities loan capital (other than to another Target Company or other instruments; Exhibit 2.1
(D) create any Encumbrance or give any guarantee, joint liability undertaking, right of set-off or other assurance for the benefit of any third partyTarget Subsidiary);
(Eii) declare, make or pay any dividend or any other distribution or payment of capital, profits or reserves of the Company whether in cash or in kind (including in shares) other than the Permitted Dividendsmaterial amendment to its constitutional documents;
(Fiii) change the Current Accounting Rules and Policiessell, other than as required by a change of Law, provided that prior written notice has been provided to the Purchaser;
(G) acquire transfer or dispose of, or grant or extend any option to acquire or dispose ofacquire, any shares part of its business, undertaking or other equity interest in any company, or any business or any a material asset (including with respect to the Shares)part of its assets, other than stock-in-trade assets in the ordinary course of business and consistent with past practicebusiness;
(Hiv) merge borrow any monies or consolidate with incur any indebtedness other person than trade credit or business, enter into finance leases in the ordinary course of trading and any partnership, consortium, association interest or joint venture or incorporate any subsidiariesfees incurred in respect of existing indebtedness;
(Iv) make grant, issue or redeem any material change to the organizationmortgage, scope charge, debenture or nature of its business (including other security or Encumbrance or give any expansion outside of the Netherlands guarantee or any activity that is not explicitly permitted under the Designation);
(J) borrow any amount or incur any financial indebtednessindemnity, in excess of EUR 100,000 in aggregate;
(K) lend any amounts to any person, other than to the Sellers provided that such amounts are settled via Permitted Dividends or repaid on or prior to Completion;
(L) enter into any agreement, arrangement or commitment with a Seller, its Affiliates or its Related Parties;
(M) enter into or incur any capital expenditure commitment or any other actual or contingent liability in excess of EUR 1,000,000 in aggregate;
(N) enter into, terminate or amend any agreement or commitment representing a value of more than EUR 100,000 on an annual basis or more than EUR 250,000 over the entire term of the agreement or commitment (including any supply agreement with a coffee shop);
(O) offer price reductions or discounts or enter into any unusual or onerous agreement, arrangement or commitment in each case other than in the ordinary course of business and consistent with past practice as specifically disclosed then only in respect of the Disclosure Letterobligations and liabilities of other members of the Target Group;
(Pvi) materially amend, enter into, offer to enter into or terminate or give notice to terminate any material leasing, hire, hire purchase or other agreement for payment on deferred terms; Exhibit 2.1
(Q) engage any employee that would directly report to the Director, dismiss any Key terms of employment of a Senior Employee or any person who would have equivalent standing, if an employee who reports to the Director as of the date hereof, or make any material change to the remuneration or other terms and conditions of engagement of any Key Employee, any employee who reports to the Director as of the date hereof or the general work force of the Company, other than as required by applicable Law or any applicable collective bargaining agreementTarget Group;
(Rvii) change form any pension scheme subsidiary or grant acquire shares in any company or create acquire any additional retirement business or disability benefit other than as required by applicable Law undertaking or participate in, or terminate any applicable collective bargaining agreementparticipation in, any partnership or joint venture;
(Sviii) enter intochange in any material respect the accounting procedures, change principles or terminate practices of any collective bargaining agreement Target Company or other arrangements with any trade union or works councilTarget Subsidiary;
(Tix) initiate or conduct any legal proceedingsinitiate, settle or compromise, or fail to take all reasonable steps to defend, any new litigation or other dispute or waive any claim, in each case representing an amount arising after the date of more than EUR 250,000, this agreement having a value of at least £500,000 (and other than routine proceedings for the collection recovery of trade debts arising in the ordinary course);
(x) fail to maintain in full force and effect without replacing with like-for-like cover the insurance policies which it holds or otherwise benefits from;
(xi) terminate or materially amend any Material Contract otherwise than: (A) in the ordinary course of business; (B) to make the overall terms thereof more favourable to the Target Group and/or substantially in line with or closer to the relevant and then-current standard terms of business and consistent with past practiceof the Target Group; or (UC) plan, agree or commit to agree to any of if the foregoing.
3. During the period from the date of this Agreement until Completion, Ring shall comply Material Contract is simultaneously replaced with the provisions of paragraph 2 of Schedule 12 (Tax Matters).
4. Notwithstanding anything to the contrary in this Agreement, during the period from the date of this Agreement until Completion, Ring shall, and shall procure that the Company shall, except to the extent otherwise agreed between Ring and the Purchaser in writing, in relation to the Odor Issue:
(A) keep the Purchaser promptly and fully informed of any developments regarding the Odor Issuea substantially similar contract;
(Bxii) promptly inform fail to conduct its business in compliance with applicable law where the Purchaser consequences of such non-compliance would be reasonably likely to result in a material adverse effect on the Target Group taken as a whole;
(xiii) undertake any communication reorganisation, reconstruction, demerger, merger, scheme of arrangement or correspondence received from similar or analogous procedure, in each case other than the Governmental Authorities regarding Kantar Reorganisation;
(xiv) change its Tax residence;
(xv) make, change or revoke any Tax election, settle or compromise any Tax claim or liability, waive or extend any statute of limitations in respect of Tax or any period within which an assessment or reassessment of Tax may be issued, or prepare or file any Tax Return (or any amendment thereof), except in each case if and to the Odor Issue andextent: (i) reflected in the Locked Box Accounts; (ii) required by law; or (iii) in accordance with the past practice of the relevant member of the Target Group or, to the extent legally permissibleapplicable to the relevant member of the Target Group, promptly provide of the Purchaser with copies of any such communication or correspondence received from any Governmental Authority or other third party in relation thereto, in each case except for communication or correspondence of pure administrative nature;WPP Group; or
(Cxvi) timely respond agree to do any communication or correspondence received from the Governmental Authorities regarding the Odor Issue, and supply any available information and documents that may reasonably be requested by a Governmental Authority in relation to the Odor Issue, provided that the Purchaser will first be provided the opportunity to review and provide input on such draft response or information and documents within five (5) Business Days following receipt of such draft response or information and documents, which input will be reasonably considered; Exhibit 2.1
(D) upon the Purchaser's request, schedule and attend a meeting with the Purchaser and its representatives to discuss the status of the Odor Issue, which meeting shall, except actions referred to in case of urgency, occur not more than once a week;subclauses 7.1(b)(i) to 7.1(b)(xv).
(E) ensure that, 7.2 Subject to the extent permitted by the relevant Governmental Authority, the Purchaser is given the opportunity to attend clause 7.3 and participate in any meetings, discussions or hearings with (representatives of) the relevant Governmental Authorities in connection with the Odor Issue, and in any event keep the Purchaser promptly informed of the content and outcome of any such meetings, discussions or hearings; and
(F) take any other commercially reasonable action, including to defend, contest and resist any proceedings in case proceedings are initiated or threatened by any Governmental Authority or other person and to have vacated, lifted, reversed or overturned any Order, whether temporary, preliminary or permanent, with respect to the Odor Issue, including timely lodging, and diligently pursuing, any and all appeals against any administrative fines imposed on the Company in connection with the Odor Issue, provided that Ring shall procure that the Company shall inform and consult with the Purchaser in relation to any actions taken in relation to any Order or proceedings initiated or threatened and in no event agree to or accept any commitment, condition, undertaking or any other obligation, other than with the prior written approval consent of the Purchaser (such consent not to be unreasonably delayed conditioned, withheld or withhelddelayed), until the First Completion Date (and in respect of any Deferred Target Subsidiary only, until the relevant Deferred Completion Date) the Parent undertakes that it shall procure that the voting rights attaching to any Equity Interests held directly by a wholly owned member of the WPP Group in a Non-Wholly Owned Target Subsidiary, and (subject to their fiduciary duties and in so far as it is so able) the voting rights of the directors or equivalent appointed by the Parent or any wholly owned member of the WPP Group to the board of directors of a Non-Wholly Owned Target Subsidiary, are not exercised so as to approve any of the matters referred to in clauses 7.1(b)(i) to 7.1(b)(xvi) in respect of such Non-Wholly Owned Target Subsidiary or to approve any matter outside of the ordinary course of the day to day business of such Non-Wholly Owned Target Subsidiary.
5. 7.3 Clauses 5.1.1 to (including) 5.1.3 7.1 and 7.2 shall not operate so as to restrict or prevent:
(Aa) any action taken at the request of the Purchaser or with its prior approval;
(b) any matter reasonably undertaken by any member of the Target Group in an Emergency Situation with the case intention of an emergency or disaster minimising any adverse effect of the Emergency Situation on any member of the Target Group (and of which the consequences are imminentPurchaser will be notified as soon as practicable);
(c) any action taken in accordance with any contract or arrangement entered into by any member of the Target Group before the date of this agreement;
(d) any act or conduct which any member of the Target Group is required to take, or omit to take, as a result of, or in order to comply with, any applicable law or regulation of any applicable Regulatory Authority;
(e) any action that is Permitted Leakage;
(f) any action that is required, necessary or desirable in connection with the Kantar Reorganisation and carried out in accordance with the applicable provisions of this agreement;
(g) any action or matter required, necessary or desirable to give effect to the extent strictly required EY Acquisition Steps Paper or any provision of this agreement or another Transaction Document, and in each case carried out in accordance with the applicable provisions of this agreement;
(h) any action that complies with Schedule 9; or
(i) any action that is required, necessary or desirable in connection with clause 23 or otherwise in order for the Target Group to minimise or mitigate any be separated from the Retained Group and to be able to operate its business in all material adverse effect respects on a standalone basis without reliance on the business Retained Group.
7.4 The Purchaser shall be deemed to have given its approval to a matter referred to in clause 7.1 or clause 7.2 (as applicable) unless it notifies the Parent of its objection and its reasons for objecting within five Business Days after receiving a written request for approval from the Parent.
7.5 The Parent shall, as soon as practicable after the date of this agreement (or in accordance with such timing as indicated in the EY Acquisition Steps Paper), undertake such reorganisation of the Companyrelevant part of the WPP Group and shall prepare and execute, provided or procure the preparation and execution of, any document, and shall perform, or procure the performance of, all other acts and things, in each case as are required or necessary to implement Steps 0.1 to 0.8 (inclusive) of the EY Acquisition Steps Paper in order to create the “Simplified transaction structure pre-completion” shown in the EY Acquisition Steps Paper.
7.6 The Parties undertake to ensure that at all times Ring entities which are to be set up for the purposes of implementing the EY Acquisition Steps Paper (including for the avoidance of any doubt, New US GP Co 1, New US GP Co 2 and New US GP Co 3 (each as referred to in the EY Acquisition Steps Paper) which are incorporated in the Purchaser’s Group prior to the transfer into the WPP Group pursuant to Steps 25, 27 and 29 of the EY Acquisition Steps Paper) undertake no other activities, acquire no other assets and incur no other liabilities except as expressly contemplated in the EY Acquisition Steps Paper or which are customary administrative matters in connection with their incorporation.
7.7 Following the satisfaction of the Conditions in accordance with clause 6 and in any event prior to First Completion, the Purchaser shall prepare and execute, or procure the preparation and execution of, any documents, and shall perform, or procure the performance of, all other acts and things, in each case as are required or necessary to implement Steps 1 to 8 (inclusive) and Step 14 of the EY Acquisition Steps Paper.
7.8 Immediately prior to First Completion, the Purchaser shall procure that each of US HoldCo A LLC and US HoldCo B LLC (as referred to in the EY Acquisition Steps Paper) and the Parent shall procure that each of WPP Blitz and WPP Dash (as referred to in the EY Acquisition Steps Paper) prepare and execute any documents, and perform all other acts and things, in each case as are required or necessary in order to implement the mergers pursuant to Step 34 of the EY Acquisition Steps Paper. The Parties agree that the Parent shall, following implementation of Step 34 of the EY Acquisition Steps Paper and in any event prior to First Completion, procure that US HoldCo B LLC, US HoldCo A LLC and other members of the WPP Group, and the Purchaser shall procure that the officers of US HoldCo B LLC and US HoldCo A LLC prepare and execute any documents, and perform all other acts and things, in each case as are required, necessary or desirable in order for US HoldCo B LLC and US HoldCo A LLC to declare, make and pay the distributions pursuant to Steps 35 and 36 of the EY Acquisition Steps Paper, and transfer US HoldCo A LLC as contemplated in Steps 37 and 38 of the EY Acquisition Steps Paper.
7.9 Following the satisfaction of the Conditions in accordance with clause 6 and in any event prior to First Completion, the Parent shall prepare and execute, or procure the preparation and execution of, any documents and shall perform or procure the performance of, all other acts and things, in each case as are required or necessary to implement Steps 26, 28, 30, 31, 32 and 33 of the EY Acquisition Steps Paper.
7.10 The Purchaser undertakes to ensure that each of US HoldCo A LLC and US HoldCo B LLC, and the Parent undertakes to ensure that each of WPP Blitz and WPP Dash (as referred to in the EY Acquisition Steps Paper), in each case will be, at the time of implementation of Step 34 of the EY Acquisition Steps Paper, companies set up for the purposes of the Transaction and its financing in accordance with the EY Acquisition Steps Paper and the Purchaser Finance Documents and, except for the actions contemplated to be taken by them pursuant to the EY Acquisition Steps Paper and the Purchaser Finance Documents, will have undertaken no other activities, acquired no other assets and incurred no other liabilities except as expressly contemplated in the EY Acquisition Steps Paper or which are customary administrative matters in connection with their incorporation.
7.11 Until the First Completion Date (and in respect of any Deferred Target Subsidiary only, until the relevant Deferred Completion Date) the Parent undertakes that it shall:
(a) procure (in so far as it is able) that subject to applicable law, the Purchaser and its agents and representatives are, during normal business hours and on reasonable notice, given reasonable access to the Senior Employees and the books and records of the Target Group to the extent reasonably required by the Purchaser for the purpose of planning for its investment in the Target Group and on and with effect from First Completion (or Deferred Completion, as applicable) provided that this obligation shall not extend to allow access to information reasonably regarded by the Parent as confidential to the Parent or the Retained Group; and
(b) cooperate and assist, and shall use commercially reasonable efforts to procure (in so far as it is able) that the Sellers, the Deferred Sellers, the Target Group and their respective directors, officers, employees, accountants and other professional advisers and representatives (at the Purchaser Group’s sole expense) provide relevant information to, and cooperate and assist (in each case to the extent such cooperation and assistance is legally permissible and does not interfere unreasonably with the operation of the Sellers, the Deferred Sellers or the Target Group, as applicable) with, the Purchaser’s Group and with any of its prospective debt financing providers, rating agencies and other professional advisers and representatives in connection with and in order to facilitate the debt financing of the Transaction (which is intended to include loan and debt securities financings) and any related debt syndication, consisting of, but not limited to: (i) participating in a reasonable number of lender, investor and rating agency meetings, road shows, due diligence sessions and drafting sessions; (ii) assisting with the preparation of credit rating agency presentations, bank information memoranda, offering or private placement memoranda, prospectuses and other similar offering documents; (iii) using commercially reasonable efforts in providing customary due diligence materials, ‘know your customer’ (KYC) documents and any other customary documents and certificates; (iv) providing customary audited annual and reviewed interim financial statements (including the Accounts and equivalent accounts for the preceding two financial years) and audit reports (and provided, in each case, that the Purchaser’s Group and any of its prospective debt financing providers, rating agencies and other professional advisers and representatives (as applicable) execute and deliver any hold harmless letters that may be required by the Parent’s or the Target Group’s advisers in respect thereof); (v) providing any other information that is customarily included or provided in an offering of high yield debt securities under Rule 144A and Regulation S under the US Securities Act of 1933 and, with respect to financial statements and other financial information, as may be required to receive SAS 72-style comfort (including negative assurance) from an independent accountant; and (vi) consenting to the use of the Target Group’s logos in connection with the debt financing (provided such logos are used solely in a manner that is not intended to harm the reputation or goodwill of the Target Group).
7.12 The Parent shall procure that each Tax-Consolidated Target Group Company shall ceases, with effect from a time no later than the First Completion Date or the relevant Deferred Completion Date (as applicable) for that Tax-Consolidated Target Group Company, to be a member of any Tax Consolidation of which it is a member as at the date of this agreement, in each case if and to the extent that the same has not already occurred by that time by operation of law or otherwise.
7.13 With effect from the date of this agreement:
(a) the Parent shall:
(i) use its best all commercially reasonable efforts to contact procure (in so far as it is able) that each relevant member of the Purchaser prior WPP Group obtains all consents, approvals or authorisations from any third parties that are reasonably required so as to taking any such actionallow the relevant members of the Retained Group and the relevant members of the Target Group to each remain in occupation of, and continue to operate their respective business out of, the Co-Location Properties following First Completion;
(ii) promptly notify and fully inform (in obtaining all consents, approvals or authorisations pursuant to clause 7.13(a)(i) above) use all reasonably commercial efforts to procure that the Purchaser annual rent that will be payable by each member of the Target Group (in respect of their shared occupation of the Co-Location Properties (or any parts of them) with the relevant circumstancesmember of the Retained Group) following First Completion, considerations and actions and (iii) provide such information as reasonably requested shall not be materially higher than the annual rent payable by the Purchaser;
(B) completion or performance of any binding obligation undertaken by the Company prior to them on the date of this Agreement, which has been specifically disclosed in the Disclosure Letter;
(C) any matter specifically contemplated by this Agreement;
(D) any matter specifically disclosed against Clause 5.agreement provided that if a third party landlord increases th
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PRE-COMPLETION COVENANTS. 1. Conduct of business before Completion
1. During 7.1.1 Between the period from the date execution of this Agreement until and Completion, Ring shall procure that the Company carries on its business in the ordinary course consistent with past practice and that the Company Vendor shall:
(Aa) use its reasonable efforts to maintain relationships with suppliers, customers and others having business or professional relationships with the Company;
(B) continue to pay its creditors and collect debts in the ordinary course of business and within the usual terms of payment of the relevant creditors and debtors;
(C) maintain all insurance policies or, without prejudice to Clause 5.1.2, provide for substitute insurance policies on equally beneficial terms;
(D) use commercially reasonable efforts to maintain all licences, consents and authorizations necessary to carry on its business (including the Designation) and comply with the terms and conditions of such licences, consents and authorizations necessary to carry on its business (including the Designation) and applicable Law;
(E) maintain all accounting and other records in the ordinary course;
(F) maintain through Completion, its Cash Balances at an amount of at least EUR 2,500,000; and
(G) continue to meet its pension funding and social insurance obligations and contributions in respect of its employees.
2. During the period from the date of this Agreement until Completion, Ring shall procure that without the prior written consent of the Purchaser, the Company shall not:
(A) amend its articles of association or other constitutional documents;
(B) reclassify, split, consolidate, repay, recapitalize, purchase or redeem any of its own shares;
(C) issue any shares, securities convertible into shares or other profit sharing instruments or any rights or options to subscribe for or acquire any shares or such securities or other instruments; Exhibit 2.1
(D) create any Encumbrance or give any guarantee, joint liability undertaking, right of set-off or other assurance for the benefit of any third party;
(E) declare, make or pay any dividend or any other distribution or payment of capital, profits or reserves of the Company whether in cash or in kind (including in shares) other than the Permitted Dividends;
(F) change the Current Accounting Rules and Policies, other than as required by a change of Law, provided that prior written notice has been provided to the Purchaser;
(G) acquire or dispose of, or grant or extend any option to acquire or dispose of, any shares or other equity interest in any company, or any business or any material asset (including with respect to the Shares), other than stock-in-trade in the ordinary course of business and consistent with past practice;
(H) merge or consolidate with any other person or business, enter into any partnership, consortium, association or joint venture or incorporate any subsidiaries;
(I) make any material change to the organization, scope or nature of its business (including any expansion outside of the Netherlands or any activity that is not explicitly permitted under the Designation);
(J) borrow any amount or incur any financial indebtedness, in excess of EUR 100,000 in aggregate;
(K) lend any amounts to any person, other than to the Sellers provided that such amounts are settled via Permitted Dividends or repaid on or prior to Completion;
(L) enter into any agreement, arrangement or commitment with a Seller, its Affiliates or its Related Parties;
(M) enter into or incur any capital expenditure commitment or any other actual or contingent liability in excess of EUR 1,000,000 in aggregate;
(N) enter into, terminate or amend any agreement or commitment representing a value of more than EUR 100,000 on an annual basis or more than EUR 250,000 over the entire term of the agreement or commitment (including any supply agreement with a coffee shop);
(O) offer price reductions or discounts or enter into any unusual or onerous agreement, arrangement or commitment in each case other than in the ordinary course of business and consistent with past practice as specifically disclosed in the Disclosure Letter;
(P) enter into any material leasing, hire, hire purchase or other agreement for payment on deferred terms; Exhibit 2.1
(Q) engage any employee that would directly report to the Director, dismiss any Key Employee or any employee who reports to the Director as of the date hereof, or make any material change to the remuneration or other terms and conditions of engagement of any Key Employee, any employee who reports to the Director as of the date hereof or the general work force of the Company, other than as required by applicable Law or any applicable collective bargaining agreement;
(R) change any pension scheme or grant or create any additional retirement or disability benefit other than as required by applicable Law or any applicable collective bargaining agreement;
(S) enter into, change or terminate any collective bargaining agreement or other arrangements with any trade union or works council;
(T) initiate or conduct any legal proceedings, settle any dispute or waive any claim, in each case representing an amount of more than EUR 250,000, other than the collection of debts arising in the ordinary course of business and consistent with past practice; or (U) plan, agree or commit to agree to any of the foregoing.
3. During the period from the date of this Agreement until Completion, Ring shall comply with the provisions of paragraph 2 of Schedule 12 (Tax Matters).
4. Notwithstanding anything to the contrary in this Agreement, during the period from the date of this Agreement until Completion, Ring shall, and shall procure that the Company shall, except to the extent otherwise agreed between Ring and the Purchaser in writing, in relation to the Odor Issue:
(A) keep the Purchaser promptly and fully informed of any developments regarding the Odor Issue;
(B) promptly inform the Purchaser of any communication or correspondence received from the Governmental Authorities regarding the Odor Issue and, to the extent legally permissible, promptly provide the Purchaser with copies of any such communication or correspondence received from any Governmental Authority or other third party in relation thereto, in each case except for communication or correspondence of pure administrative nature;
(C) timely respond to any communication or correspondence received from the Governmental Authorities regarding the Odor Issue, and supply any available information and documents that may reasonably be requested by a Governmental Authority in relation to the Odor Issue, provided that the Purchaser will first be provided the opportunity to review and provide input on such draft response or information and documents within five (5) Business Days following receipt of such draft response or information and documents, which input will be reasonably considered; Exhibit 2.1
(D) upon the Purchaser's request, schedule and attend a meeting with the Purchaser and its representatives to discuss the status of the Odor Issue, which meeting shall, except in case of urgency, occur not more than once a week;
(E) ensure that, to the extent permitted by the relevant Governmental Authority, the Purchaser is given the opportunity to attend and participate in any meetings, discussions or hearings with (representatives of) the relevant Governmental Authorities in connection with the Odor Issue, and in any event keep the Purchaser promptly informed of the content and outcome of any such meetings, discussions or hearings; and
(F) take any other commercially reasonable action, including to defend, contest and resist any proceedings in case proceedings are initiated or threatened by any Governmental Authority or other person and to have vacated, lifted, reversed or overturned any Order, whether temporary, preliminary or permanent, with respect to the Odor Issue, including timely lodging, and diligently pursuing, any and all appeals against any administrative fines imposed on the Company in connection with the Odor Issue, provided that Ring shall procure that the Company shall inform and consult with the Purchaser in relation to any actions taken in relation to any Order or proceedings initiated or threatened and in no event agree to or accept any commitment, condition, undertaking or any other obligation, other than with the prior written approval of the Purchaser (not to be unreasonably delayed or withheld).
5. Clauses 5.1.1 to (including) 5.1.3 shall not operate so as to restrict or prevent:
(A) any matter reasonably undertaken in the case of an emergency or disaster of which the consequences are imminent, to the extent strictly required to minimise or mitigate any material adverse effect on the business of the Company, provided that at all times Ring shall, and shall procure that the Company shall (i) use its best efforts to contact the Purchaser prior to taking any such action, (ii) promptly notify and fully inform the Purchaser of the relevant circumstances, considerations and actions and (iii) provide such information as reasonably requested by the Purchaser;
(B) completion or performance of any binding obligation undertaken by the Company prior to from the date of this Agreement, which has been specifically disclosed provide the Buyer with the executed employment contract of all personnels who provide services to the Company and permit the Buyer to communicate with and interview such personnel. For those personnels whom the Buyer decides to retain and be employed by the Company after the Completion, the Vendor shall ensure that such personnel’s employment relationship with the existing employer is terminated and all severance payments are paid in full on or prior to the Disclosure LetterCompletion or as otherwise agreed by the Parties;
(Cb) provide the Buyer and its Representatives with such access as is reasonably requested, upon reasonable prior notice and during business hours to (A) the financial statements of the Company and (B) the premises used by the Company, including for the purpose of inspection, surveys, measurements, assessments and other preparatory activities in connection with any matter specifically contemplated by this Agreementproposed renovations;
(Dc) unless with the prior written consent of the Buyer (which consent shall not be unreasonably withheld or delayed), the Vendor shall not, and shall ensure the Company not to:
(i) authorize, adopt or effect any complete or partial liquidation of the Company;
(ii) authorize, adopt or effect any dissolution, merger, consolidation, restructuring, recapitalization or reorganization of the Company;
(iii) authorize for issuance, issue, deliver, sell, pledge, dispose of or grant (A) any shares or other equity or voting securities of the Company, or (B) any options, warrants or other rights to acquire, any such shares, equity interests or voting securities of the Company, or equity securities convertible into or exchangeable for, shares, equity interests or voting securities of the Company;
(iv) amend any constitutional document of the Company;
(v) make any change in accounting methods, principles or practices of the Company;
(vi) sell or remove any equipment, properties, facilities or assets; lease, license, mortgage or otherwise dispose of, or permit to become subject to any Encumbrances, the Owned Real Property or any equipment, facilities and other assets of the Company listed in Schedule 4;
(vii) incur any indebtedness (including make any loans or advances), or give a guarantee to secure another person’s obligation (including any member of the Vendor’s Group);
(viii) make, revoke or change any material Tax election, adopt or change any Tax accounting method or period, amend any income or other material Tax Return, enter into any closing agreement or other binding written agreement with a Governmental Authority with respect to Taxes, surrender any right to claim a refund of a material amount of Taxes, other than requested by any Governmental Authority, incur any material Tax liability, enter into any Tax allocation, Tax sharing or Tax indemnity agreement, apply for any Tax ruling from any Governmental Authority, file any income or other material Tax Return other than one prepared in a manner consistent with past practice, consent to any extension or waiver of the limitation period applicable to any Tax claim or assessment (in each case, except as required by applicable laws);
(ix) save and except for Air Products Case, initiate, settle or compromise any pending or threatened litigation or arbitration proceedings;
(x) make or commit to make any capital expenditures or make any capital commitment; and
(xi) terminate or cancel, let lapse, or amend or modify in any material respect, any insurance policy (if any). Nothing in this Clause 7.1 shall operate so as to prevent or restrict any matter specifically disclosed against Clause 5as may be required to give effect to any provision pursuant to this Agreement.
Appears in 1 contract
Sources: Share Sale and Purchase Agreement (Maxeon Solar Technologies, Ltd.)