Investment Assets. (a) (i) From the date hereof through the Closing, the Parent shall deliver to the Acquiror, on a weekly basis, a true, correct and complete list of all purchases, acquisitions, commitments, derivatives, transactions, sales and dispositions during the previous week of Investment Assets of any of the Companies or any of the Transferred Subsidiaries and all investments and reinvestments of income and proceeds in respect thereof (such purchases, acquisitions, commitments, derivatives, transactions, sales, dispositions, investments and reinvestment, the “Investment Asset Transactions”), including the dates of each such Investment Asset Transaction and the book value or amortized cost and market value of the associated Investment Asset, (ii) no later than 30 days after the last day of each fiscal quarter prior to the Closing, the Parent shall deliver to the Acquiror a true, correct and complete list of the Investment Assets as of such quarter end date, and (iii) for the five Business Days prior to the anticipated Closing Date, as reasonably practicable, the Parent shall deliver to the Acquiror daily updates of the Investment Asset Transactions. The Parent shall provide to the Acquiror, on a periodic basis, the regular investment reports that are provided to the Chief Investment Officer of any of the Companies or any of the Transferred Subsidiaries. (b) The Parent shall provide the Acquiror written notice of any Company’s or any Transferred Subsidiary’s intention to effect an Investment Asset Transaction the book value of which exceeds ¥3,010,000,000 per transaction or series of related transactions, excluding (i) transactions relating to Investment Assets belonging to one or more separate accounts of any Company or any Transferred Subsidiary or (ii) an Investment Asset Transaction in Japanese government bonds that does not exceed ¥5,000,000,000. The Parent shall, and shall cause the applicable Company or Transferred Subsidiary to, at least five Business Days prior to effecting such Investment Asset Transaction, (i) afford the Acquiror with a reasonable opportunity to review the principal terms and relevant financial data relating to such proposed transaction (or series of related Investment Asset Transactions) and (ii) consider in good faith the views and comments of the Acquiror in connection with the proposed transaction (or series of related transactions). Notwithstanding anything to the contrary in this Agreement, including Section 5.01, but subject to the immediately following sentence, the Parent shall cause the Companies and the Transferred Subsidiaries not to purchase or otherwise acquire any of the Investment Assets listed on Section 5.16(b)(i) of the Seller Disclosure Letter or enter into any derivative transactions, swaps, caps, floors, options or other risk management arrangements with any of the counterparties listed on Section 5.16(b)(ii) of the Seller Disclosure Letter. For Investment Asset Transactions prohibited by the immediately preceding sentence, to the extent Parent or the applicable Company or Transferred Subsidiary provides written notice (by email with receipt confirmed) to the Representative of the Acquiror designated as an observer pursuant to Section 5.16(c), including the principal terms and relevant financial data relating to a proposed transaction (or series of related Investment Asset Transactions), Acquiror shall provide a written response within the time periods specified in Section 5.16(b)(ii) of the Seller Disclosure Letter following receipt of such written notice, either providing consent or withholding consent for such Investment Asset Transaction (or series of related Investment Asset Transactions), and failure by the Acquiror to respond in writing to such request within such applicable time period shall be deemed consent to the Investment Asset Transaction (or series of related Investment Asset Transactions) for purposes of the immediately preceding sentence. (c) Prior to the Closing, the Acquiror shall have the right to designate a Representative as an observer. The observer shall have the right to (i) listen via telephone to, but not speak during, any substantive meetings of the investment committee of any of the Companies or any of the Transferred Subsidiaries or any other similar body responsible for the investment policies of any of the Companies or any of the Transferred Subsidiaries, (ii) have reasonable access, during normal business hours, to the chief investment officer (or other similar executive officer in charge of the investment activities of any of the Companies or any of the Transferred Subsidiaries) and to other employees of the Companies reporting to such chief investment or other similar officer, provided that any access to such employees shall be subject to the prior approval (not to be unreasonably withheld or delayed) and supervision of such chief investment or other similar officer, (iii) listen via telephone to, but not speak during, any substantive meetings at which division heads discuss material decisions affecting the Companies and the Transferred Subsidiaries regarding Investment Assets with the president, chief executive officer, or other similar executive officer of any of the Companies or any of the Transferred Subsidiaries (other than meetings of the board of directors of the Companies and the Transferred Subsidiaries), and (iv) in addition to the reports provided under Section 5.16(a), receive reasonable access to lists of Investment Assets, Investment Asset Transactions, information concerning executed realized gains and losses and cash flows and other investment activity reports (including performance and risk analysis reports) generated by the Companies in the Ordinary Course of Business; provided that the applicable Company or Transferred Subsidiary may withhold any information and exclude such observer from any meeting or portion thereof if access to such information or attendance at such meeting could adversely affect the attorney-client privilege between any of the Companies or any of the Transferred Subsidiaries and its counsel, result in disclosure of Trade Secrets, or result in a violation of applicable Law. For the avoidance of doubt, the Companies and the Transferred Subsidiaries shall have sole discretion with respect to all Investment Asset Transactions, subject to the limitations set forth on Section 5.16(b) of the Seller Disclosure Letter. For purposes of clarification and without prejudice to the Acquiror’s rights under Section 5.16(b), the observer’s rights under this Section 5.16(c) are limited to the right to listen, take notes and, except with respect to the observer’s rights in clauses (i) and (iii) above, ask questions. Except as set forth in Section 5.16(b), the Acquiror’s rights under this Section 5.16 shall not require the Companies or the Transferred Subsidiaries to wait for or to solicit any opinions of the observer or the Acquiror on any matter, action, non-action or decision whatsoever.
Appears in 2 contracts
Samples: Stock Purchase Agreement (American International Group Inc), Stock Purchase Agreement (Prudential Financial Inc)
Investment Assets. (a) (i) From the date hereof through the Closing, as soon as practicable after it becomes available (and in any event not later than 25 days after the Parent end of each calendar month) the Seller shall deliver to the Acquiror, on a weekly basis, Acquiror a true, correct and complete list of all purchases, acquisitions, commitments, derivatives, transactions, sales and dispositions during the previous week month of Investment Assets of any of the Companies Company or any of the Transferred Subsidiaries Subsidiaries, for which transaction details are provided in XXX, and all investments and reinvestments of income and proceeds in respect thereof (such purchases, acquisitions, commitments, derivatives, transactions, sales, dispositions, investments and reinvestment, the “Investment Asset Transactions”), including the dates of each such Investment Asset Transaction and the book value or amortized cost and market value of the associated Investment Asset, (ii) no later than 30 days after the last day of each fiscal quarter prior to the Closingquarter, the Parent Seller shall deliver to the Acquiror a true, correct and complete list of the Investment Assets as of such quarter end date, and (iii) from the last day of the fiscal quarter immediately preceding the Closing Date, the Seller shall deliver weekly updates of the Investment Asset Transactions, and for the five Business Days prior to the anticipated Closing Date, as reasonably practicable, the Parent shall deliver to the Acquiror daily updates of the Investment Asset Transactions. The Parent Seller shall provide to the Acquiror, on a periodic basis, the regular investment reports that are provided to the Company’s Chief Investment Officer of any by the Transferred Subsidiaries and the non-United States branches of the Companies or any of the Transferred SubsidiariesCompany.
(b) The Parent and the Seller shall provide the Acquiror written notice of any the Company’s or any Transferred Subsidiary’s intention to effect (i) an Investment Asset Transaction the book value of which exceeds ¥3,010,000,000 $100,000,000 per transaction or series of related transactions, (ii) any refinancing (including any extension, modification, renewal, exchange, cancellation or forgiveness of debt) of a Loan Interest with a loan-to-value ratio of 75% or more other than the assets subject to the Special Asset Protection Agreement or (iii) any origination of any new Loan Interest which constitutes a senior mortgage loan, each of (i), (ii) or (iii) excluding (iA) transactions relating to Investment Assets belonging to one or more separate accounts of any the Company or any Transferred Subsidiary or derivative novation strategies and (iiB) an Investment Asset Transaction cash or near cash activities (as defined in Japanese government bonds that does not exceed ¥5,000,000,000the SI Unaudited Reporting Package). The Parent Seller shall, and shall cause the applicable Company or the Transferred Subsidiary to, as applicable, at least five Business Days prior to effecting such Investment Asset Transaction, transaction (iA) afford the Acquiror with a reasonable opportunity to review the principal terms and relevant financial data relating to such proposed transaction (or series of related Investment Asset Transactions) and (iiB) consider in good faith the views and comments of the Acquiror in connection with the proposed transaction (or series of related transactions). Notwithstanding anything to The Parent and the contrary in this AgreementSeller shall, including Section 5.01from the date hereof through the Closing Date, but subject to the immediately following sentence, the Parent shall cause the Companies Company and the Transferred Subsidiaries not to purchase make any new investments that support liabilities denominated in foreign currencies, whether made with proceeds of Investment Assets or otherwise acquire other funds in a manner reasonably designed to avoid any material increase in any mismatch existing on the date hereof between the currency of such liabilities and the currency of the Investment Assets listed on Section 5.16(b)(isupporting such liabilities; provided, that: (1) of the Seller Disclosure Letter or enter into any derivative transactions, swaps, caps, floors, options or other risk management arrangements with any of the counterparties listed on Section 5.16(b)(ii) of the Seller Disclosure Letter. For Investment Asset Transactions prohibited by the immediately preceding sentence, to the extent Parent or the applicable Company or Transferred Subsidiary provides written notice (by email with receipt confirmed) to the Representative of the Acquiror designated as an observer pursuant subject at all times to Section 5.16(c6.08(c), including the principal terms and relevant financial data relating to a proposed transaction (or series of related Investment Asset Transactions), Acquiror shall provide a written response within the time periods specified in Section 5.16(b)(ii) of the Seller Disclosure Letter following receipt of such written notice, either providing consent or withholding consent for such Investment Asset Transaction (or series of related Investment Asset Transactions), and failure by the Acquiror to respond in writing to such request within such applicable time period shall be deemed consent to the Investment Asset Transaction (or series of related Investment Asset Transactions) for purposes of the immediately preceding sentence.
(c) Prior to the Closing, the Acquiror shall have the right to designate a Representative as an observer. The observer shall have the right to (i) listen via telephone to, but not speak during, any substantive meetings of the investment committee of any of the Companies or any of the Transferred Subsidiaries or any other similar body responsible for the investment policies of any of the Companies or any of the Transferred Subsidiaries, (ii) have reasonable access, during normal business hours, to the chief investment officer (or other similar executive officer in charge of the investment activities of any of the Companies or any of the Transferred Subsidiaries) and to other employees of the Companies reporting to such chief investment or other similar officer, provided that any access to such employees shall be subject to the prior approval (not to be unreasonably withheld or delayed) and supervision of such chief investment or other similar officer, (iii) listen via telephone to, but not speak during, any substantive meetings at which division heads discuss material decisions affecting the Companies Company and the Transferred Subsidiaries regarding may maintain existing derivative transactions or may enter into derivative transactions designated to mitigate the currency risks of its Investment Assets with and liabilities, (2) the presidentforegoing shall not constitute a guarantee of future performance of such investments or Investment Assets or that such asset-liability matching will be successful, chief executive officerand (3) the parties hereby acknowledge that such investments and Investment Assets are subject to foreign exchange rate fluctuation, or market, currency, economic, political and other similar executive officer of any risks outside of the Companies or any of the Transferred Subsidiaries (other than meetings of the board of directors of the Companies Company and the Transferred Subsidiaries), Subsidiary’s control and (iv) in addition to for which the reports provided under Section 5.16(a), receive reasonable access to lists of Investment Assets, Investment Asset Transactions, information concerning executed realized gains and losses and cash flows and other investment activity reports (including performance and risk analysis reports) generated by the Companies in the Ordinary Course of Business; provided that the applicable Company or Transferred Subsidiary may withhold any information and exclude such observer from any meeting or portion thereof if access to such information or attendance at such meeting could adversely affect the attorney-client privilege between any of the Companies or any of the Transferred Subsidiaries and its counsel, result in disclosure of Trade Secrets, or result in a violation of applicable Law. For the avoidance of doubt, the Companies Seller and the Transferred Subsidiaries shall have sole discretion with respect to all Investment Asset Transactions, subject to the limitations set forth on Section 5.16(b) of the Seller Disclosure Letter. For purposes of clarification and without prejudice to the Acquiror’s rights under Section 5.16(b), the observer’s rights under this Section 5.16(c) are limited to the right to listen, take notes and, except with respect to the observer’s rights in clauses (i) and (iii) above, ask questions. Except as set forth in Section 5.16(b), the Acquiror’s rights under this Section 5.16 shall not require the Companies or the Transferred Subsidiaries to wait for or to solicit any opinions of the observer or the Acquiror on any matter, action, non-action or decision whatsoeverParent assume no responsibility.
Appears in 2 contracts
Samples: Stock Purchase Agreement (Metlife Inc), Stock Purchase Agreement (American International Group Inc)
Investment Assets. The Company shall, or shall cause its applicable Subsidiaries to, deliver to Parent, within 15 Business Days following the end of each calendar month, a summary report of (a) all Investment Assets (iother than real estate and Real Estate Joint Ventures) owned by the Company or any of its Subsidiaries as of such month end, and if available, the market value thereof as of such month end, (b) all Investment Assets that are real estate and Real Estate Joint Ventures owned by the Company or any of its Subsidiaries as of such month end and the carrying values thereof as of such month end as determined on a basis consistent with the Company’s current practices with respect to its real estate (and, if there has been any third party appraisal or report completed and delivered to the Company during such month that speaks to the value of any particular real estate property, such information will be included in the report for that month), (c) all Investment Assets sold or otherwise disposed of during the preceding month, (d) all Investment Assets purchased by the Company or any of its Subsidiaries during the preceding month and (e) all Investment Assets that are in arrears or breach or default in the payment of principal or interest or dividends or are, or should be, classified as non-performing, non-accrual, ninety days past due, still accruing and doubtful of collection, in foreclosure or any comparable classification, or are permanently impaired to any extent; provided, however, that such monthly summary report shall not include a current expected credit losses (a “CECL”) analysis with respect to any of the Investment Assets; provided further that a summary CECL analysis on the applicable Investment Assets will be delivered by the Company (or its applicable Subsidiaries) to Parent within 15 Business Days following the end of each fiscal quarter. From and after the date hereof through until the Closing, the Parent shall deliver to the Acquiror, on a weekly basis, a true, correct and complete list of all purchases, acquisitions, commitments, derivatives, transactions, sales and dispositions during the previous week of Investment Assets of any of the Companies or any of the Transferred Subsidiaries and all investments and reinvestments of income and proceeds in respect thereof (such purchases, acquisitions, commitments, derivatives, transactions, sales, dispositions, investments and reinvestment, the “Investment Asset Transactions”), including the dates of each such Investment Asset Transaction and the book value or amortized cost and market value of the associated Investment Asset, (ii) no later than 30 days after the last day of each fiscal quarter prior to the Closing, the Parent shall deliver to the Acquiror a true, correct and complete list of the Investment Assets as of such quarter end date, and (iii) for the five Business Days prior to the anticipated Closing Date, as reasonably practicable, the Parent shall deliver to the Acquiror daily updates of the Investment Asset Transactions. The Parent shall provide to the Acquiror, on a periodic basis, the regular investment reports that are provided to the Chief Investment Officer of any of the Companies or any of the Transferred Subsidiaries.
(b) The Parent shall provide the Acquiror written notice of any Company’s or any Transferred Subsidiary’s intention to effect an Investment Asset Transaction the book value of which exceeds ¥3,010,000,000 per transaction or series of related transactions, excluding (i) transactions relating to Investment Assets belonging to one or more separate accounts of any Company or any Transferred Subsidiary or (ii) an Investment Asset Transaction in Japanese government bonds that does not exceed ¥5,000,000,000. The Parent shall, and shall cause the applicable Company executives or Transferred Subsidiary tomanagers having primary responsibility for Investment Assets to consult with Representatives of Parent as reasonably requested in writing, at least five Business Days prior to effecting such Investment Asset Transaction, (i) afford the Acquiror with a reasonable opportunity to review the principal terms and relevant financial data relating to such proposed transaction (or series of related Investment Asset Transactions) and (ii) consider in good faith the views and comments of the Acquiror in connection with the proposed transaction (or series of related transactions). Notwithstanding anything to the contrary in this Agreement, including Section 5.01, but subject to the immediately following sentence, the Parent shall cause the Companies and the Transferred Subsidiaries not to purchase or otherwise acquire any of the Investment Assets listed on Section 5.16(b)(i) of the Seller Disclosure Letter or enter into any derivative transactionsexceed once per month, swaps, caps, floors, options or other risk management arrangements with any of the counterparties listed on Section 5.16(b)(ii) of the Seller Disclosure Letter. For Investment Asset Transactions prohibited by the immediately preceding sentence, to the extent Parent or the applicable Company or Transferred Subsidiary provides written notice (by email with receipt confirmed) to the Representative of the Acquiror designated as an observer pursuant to Section 5.16(c), including the principal terms and relevant financial data relating to a proposed transaction (or series of related Investment Asset Transactions), Acquiror shall provide a written response within the time periods specified in Section 5.16(b)(ii) of the Seller Disclosure Letter following receipt of such written notice, either providing consent or withholding consent for such Investment Asset Transaction (or series of related Investment Asset Transactions), and failure by the Acquiror to respond in writing to such request within such applicable time period shall be deemed consent to the Investment Asset Transaction (or series of related Investment Asset Transactions) for purposes of the immediately preceding sentence.
(c) Prior to the Closing, the Acquiror shall have the right to designate a Representative as an observer. The observer shall have the right to (i) listen via telephone to, but not speak during, any substantive meetings of the investment committee of any of the Companies or any of the Transferred Subsidiaries or any other similar body responsible for the investment policies of any of the Companies or any of the Transferred Subsidiaries, (ii) have reasonable access, during normal business hours, to the chief investment officer (or other similar executive officer in charge of the investment activities of any of the Companies or any of the Transferred Subsidiaries) and to other employees of the Companies reporting to such chief investment or other similar officer, provided that any access to such employees shall be subject to the prior approval (not to be unreasonably withheld or delayed) and supervision of such chief investment or other similar officer, (iii) listen via telephone to, but not speak during, any substantive meetings at which division heads discuss material decisions affecting the Companies and the Transferred Subsidiaries regarding Investment Assets with the president, chief executive officer, or other similar executive officer of any of the Companies or any of the Transferred Subsidiaries (other than meetings of the board of directors of the Companies and the Transferred Subsidiaries), and (iv) in addition to the reports provided under Section 5.16(a), receive reasonable access to lists of Investment Assets, Investment Asset Transactions, information concerning executed realized gains and losses and cash flows and other investment activity reports (including performance and risk analysis reports) generated by the Companies in the Ordinary Course of Business; provided that the applicable Company or Transferred Subsidiary may withhold any information and exclude such observer from any meeting or portion thereof if access to such information or attendance at such meeting could adversely affect the attorney-client privilege between any of the Companies or any of the Transferred Subsidiaries and its counsel, result in disclosure of Trade Secrets, or result in a violation of applicable Law. For the avoidance of doubt, the Companies and the Transferred Subsidiaries shall have sole discretion with respect to all such matters, including future planned or potential sales and purchases of Investment Asset Transactions, subject to Assets and the limitations set forth on Section 5.16(b) treatment of the Seller Disclosure Letter. For purposes of clarification and without prejudice to the Acquiror’s rights under Section 5.16(b), the observer’s rights under this Section 5.16(c) are limited to the right to listen, take notes and, except with respect to the observer’s rights in clauses (i) and (iii) above, ask questions. Except as set forth in Section 5.16(b), the Acquiror’s rights under this Section 5.16 shall not require the Companies any impaired or the Transferred Subsidiaries to wait for or to solicit any opinions of the observer or the Acquiror on any matter, action, non-action or decision whatsoeverpotentially impaired Investment Assets.
Appears in 2 contracts
Samples: Merger Agreement (American National Group Inc), Merger Agreement (Brookfield Asset Management Reinsurance Partners Ltd.)
Investment Assets. (a) (i) From the date hereof through the Closing, the Parent shall deliver to the Acquiror, on a weekly basis, a true, correct and complete list of all purchases, acquisitions, commitments, derivatives, transactions, sales and dispositions during the previous week of Investment Assets of any of the Companies or any of the Transferred Subsidiaries and all investments and reinvestments of income and proceeds in respect thereof (such purchases, acquisitions, commitments, derivatives, transactions, sales, dispositions, investments and reinvestment, the “Investment Asset Transactions”), including the dates of each such Investment Asset Transaction and the book value or amortized cost and market value of the associated Investment Asset, (ii) no later than 30 days after the last day of each fiscal quarter prior Prior to the Closing, Seller shall use commercially reasonable efforts to cause each of the Parent Acquired Companies (other than OneBeacon Insurance) to sell, transfer or exchange all of their investment assets, other than those on deposit with Governmental Authorities, for Cash Equivalents, it being agreed that Seller shall deliver have no obligation to cause any of the Acquired Companies to sell investment assets pursuant to this Section 5.15 at a price below the price that an unaffiliated and willing purchaser would pay and an unaffiliated and willing seller would accept, neither being under any compulsion to buy or to sell and both having reasonable knowledge of relevant facts. Prior to the Acquiror a trueClosing and subject to Section 5.15, correct and complete list Seller shall use commercially reasonable efforts to cause OneBeacon Insurance’s investment assets to consist of Acceptable Investments, other than those on deposit with Governmental Authorities; provided, however, that Purchaser may, upon written notice (the “Investment Assets as Notice”) (which notice may be in the form of such quarter end dateelectronic mail or facsimile) delivered to Seller no later than 9:00 a.m., and NYCT, six (iii6) for the five Business Days prior to the anticipated Closing Date (the “Notification Date”), request that Seller cause OneBeacon Insurance to hold at the Closing a portfolio consisting of Cash Equivalents and up to $100 million fair market value (based on then current market price) of other Acceptable Investments (the “Maximum Investment Notice Amount”) as reasonably practicablespecified in the Investment Notice; provided further that any such Investment Notice shall include the specific name, requested par amount, CUSIP and stated final maturity date of each of such non-cash Acceptable Investments requested by Purchaser, the Parent shall aggregate par amount of all such non-cash Acceptable Investments (not to exceed the Maximum Investment Notice Amount) and Purchaser’s preferred order of priority of purchase of such Acceptable Investments. The failure by Purchaser to deliver to the Acquiror daily updates of the Investment Asset Transactions. The Parent shall provide to the Acquiror, on a periodic basis, the regular investment reports that are provided to the Chief Investment Officer of any of the Companies or any of the Transferred Subsidiaries.
(b) The Parent shall provide the Acquiror written notice of any Company’s or any Transferred Subsidiary’s intention to effect an Investment Asset Transaction the book value of which exceeds ¥3,010,000,000 per transaction or series of related transactions, excluding (i) transactions relating to Investment Assets belonging to one or more separate accounts of any Company or any Transferred Subsidiary or (ii) an Investment Asset Transaction in Japanese government bonds that does not exceed ¥5,000,000,000. The Parent shall, and shall cause Notice by the applicable Company or Transferred Subsidiary to, at least five Business Days prior to effecting such Investment Asset Transaction, (i) afford the Acquiror with a reasonable opportunity to review the principal terms and relevant financial data relating to such proposed transaction (or series of related Investment Asset Transactions) and (ii) consider in good faith the views and comments of the Acquiror in connection with the proposed transaction (or series of related transactions). Notwithstanding anything to the contrary time set forth in this Agreement, including Section 5.01, but subject to the immediately following sentence, the Parent shall cause the Companies and the Transferred Subsidiaries not to purchase or otherwise acquire any of the Investment Assets listed on Section 5.16(b)(i5.15(a) of the Seller Disclosure Letter or enter into any derivative transactions, swaps, caps, floors, options or other risk management arrangements with any of the counterparties listed on Section 5.16(b)(ii) of the Seller Disclosure Letter. For Investment Asset Transactions prohibited by the immediately preceding sentence, to the extent Parent or the applicable Company or Transferred Subsidiary provides written notice (by email with receipt confirmed) to the Representative of the Acquiror designated as an observer pursuant to Section 5.16(c), including the principal terms and relevant financial data relating to a proposed transaction (or series of related Investment Asset Transactions), Acquiror shall provide a written response within the time periods specified in Section 5.16(b)(ii) of the Seller Disclosure Letter following receipt of such written notice, either providing consent or withholding consent for such Investment Asset Transaction (or series of related Investment Asset Transactions), and failure by the Acquiror to respond in writing to such request within such applicable time period shall be deemed consent to the Investment Asset Transaction (or series of related Investment Asset Transactions) for purposes be a waiver of the immediately preceding sentence.
(c) Prior right of Purchaser to the Closing, the Acquiror shall have the right to designate a Representative as an observerdeliver such notice. The observer shall have the right to (i) listen via telephone to, but not speak during, any substantive meetings of the investment committee of any of the Companies or any of the Transferred Subsidiaries or any other similar body responsible for the investment policies of any of the Companies or any of the Transferred Subsidiaries, (ii) have reasonable access, during normal business hours, to the chief investment officer (or other similar executive officer in charge of the investment activities of any of the Companies or any of the Transferred Subsidiaries) and to other employees of the Companies reporting to such chief investment or other similar officer, provided that any access to such employees shall be subject to the prior approval (not to be unreasonably withheld or delayed) and supervision of such chief investment or other similar officer, (iii) listen via telephone to, but not speak during, any substantive meetings at which division heads discuss material decisions affecting the Companies and the Transferred Subsidiaries regarding Investment Assets with the president, chief executive officer, or other similar executive officer of any of the Companies or any of the Transferred Subsidiaries (other than meetings of the board of directors of the Companies and the Transferred Subsidiaries), and (iv) in addition to the reports provided under Section 5.16(a), receive reasonable access to lists of Investment Assets, Investment Asset Transactions, information concerning executed realized gains and losses and cash flows and other investment activity reports (including performance and risk analysis reports) generated by the Companies in the Ordinary Course of Business; provided that the applicable Company or Transferred Subsidiary may withhold any information and exclude such observer from any meeting or portion thereof if access to such information or attendance at such meeting could adversely affect the attorney-client privilege between any of the Companies or any of the Transferred Subsidiaries and its counsel, result in disclosure of Trade Secrets, or result in a violation of applicable Law. For the avoidance of doubt, the Companies and the Transferred Subsidiaries shall have sole discretion with respect to all Investment Asset Transactions, subject to the limitations set forth on Section 5.16(b) of the Seller Disclosure Letter. For purposes of clarification and without prejudice to the Acquiror’s rights under Section 5.16(b), the observer’s rights under this Section 5.16(c) are limited to the right to listen, take notes and, except with respect to the observer’s rights in clauses (i) and (iii) above, ask questions. Except as set forth in Section 5.16(b), the Acquiror’s rights under this Section 5.16 shall not require the Companies or the Transferred Subsidiaries to wait for or to solicit any opinions of the observer or the Acquiror on any matter, action, non-action or decision whatsoever.- #PageNum# - 703550379
Appears in 1 contract
Samples: Stock Purchase Agreement (White Mountains Insurance Group LTD)
Investment Assets. (a) (i) Without limiting Section 4.1, from the date hereof to the Closing Date, Seller shall cause the Insurance Companies to manage the Investment Assets in the ordinary course of business consistent with past practice, the Investment Guidelines and the Interim Asset Allocation Guidelines. From the date hereof through until the Closing, Seller shall, within twenty (20) days following the Parent shall end of each calendar month from the date hereof until the Closing, deliver to the AcquirorBuyer, on (i) a weekly basis, a true, correct and complete list of all purchases, acquisitions, commitments, derivatives, transactions, sales and dispositions during the previous week of Investment Assets of any of the Companies or any of the Transferred Subsidiaries and all investments and reinvestments of income and proceeds in respect thereof (such purchases, acquisitions, commitments, derivatives, transactions, sales, dispositions, investments and reinvestment, the “each Investment Asset Transactions”), including held by the dates of each such Investment Asset Transaction and the book value or amortized cost and market value of the associated Investment AssetInsurance Companies, (ii) no later than 30 days after the last day a list of each fiscal quarter prior to Investment Asset held by the ClosingInsurance Companies that was sold or otherwise disposed of during the preceding month, the Parent reason for such sale or disposition (which shall deliver to be consistent with the Acquiror second sentence of this Section 4.11), and a true, correct description of the original cost and complete tax basis of such sold Investment Assets and (iii) a list of the Investment Assets as of such quarter end date, acquired during the preceding month. Between the date hereof and (iii) for the five Business Days prior to the anticipated Closing Date, as reasonably practicable, the Parent shall deliver to the Acquiror daily updates of the Investment Asset Transactions. The Parent shall provide to the Acquiror, on a periodic basis, the regular investment reports that are provided to the Chief Investment Officer of any of the Companies or any of the Transferred Subsidiaries.
(b) The Parent shall provide the Acquiror written notice of any Company’s or any Transferred Subsidiary’s intention to effect an Investment Asset Transaction the book value of which exceeds ¥3,010,000,000 per transaction or series of related transactions, excluding (i) transactions relating to Investment Assets belonging to one or more separate accounts of any Company or any Transferred Subsidiary or (ii) an Investment Asset Transaction in Japanese government bonds that does not exceed ¥5,000,000,000. The Parent shall, and Seller shall cause the applicable Company executives or Transferred Subsidiary tomanagers having primary responsibility for the matters contemplated by this Section 4.11 to consult with Representatives of Buyer as reasonably requested by Xxxxx not to exceed once every week, at least five Business Days prior to effecting such Investment Asset Transaction, (i) afford the Acquiror with a reasonable opportunity to review the principal terms and relevant financial data relating respect to such proposed transaction (matters, including future planned or series potential purchases and sales of related Investment Asset Transactions) and (ii) Assets. In such meetings with management, Buyer or its Representative may make recommendations to Seller with respect to such matters, which Seller will consider in good faith the views faith. Seller will cooperate with Buyer and comments of the Acquiror in connection with the proposed transaction use reasonable best efforts to cause AUK to enter into one or more investment advisory agreements (or series of related transactions). Notwithstanding anything which will be reasonably acceptable to the contrary in this Agreement, including Section 5.01, but subject to the immediately following sentence, the Parent shall cause the Companies and the Transferred Subsidiaries not to purchase or otherwise acquire any of the Investment Assets listed on Section 5.16(b)(i) of the Seller Disclosure Letter or enter into any derivative transactions, swaps, caps, floors, options or other risk management arrangements with any of the counterparties listed on Section 5.16(b)(ii) of the Seller Disclosure Letter. For Investment Asset Transactions prohibited by the immediately preceding sentence, to the extent Parent or the applicable Company or Transferred Subsidiary provides written notice (by email with receipt confirmed) to the Representative of the Acquiror designated as an observer pursuant to Section 5.16(c), including the principal terms and relevant financial data relating to a proposed transaction (or series of related Investment Asset Transactions), Acquiror shall provide a written response within the time periods specified in Section 5.16(b)(ii) of the Seller Disclosure Letter following receipt of such written notice, either providing consent or withholding consent for such Investment Asset Transaction (or series of related Investment Asset Transactions), and failure by the Acquiror to respond in writing to such request within such applicable time period shall be deemed consent to the Investment Asset Transaction (or series of related Investment Asset Transactions) for purposes of the immediately preceding sentence.
(c) Prior to the Closing, the Acquiror shall have the right to designate a Representative as an observer. The observer shall have the right to (i) listen via telephone to, but not speak during, any substantive meetings of the investment committee of any of the Companies or any of the Transferred Subsidiaries or any other similar body responsible for the investment policies of any of the Companies or any of the Transferred Subsidiaries, (ii) have reasonable access, during normal business hours, to the chief investment officer (or other similar executive officer in charge of the investment activities of any of the Companies or any of the Transferred Subsidiaries) and to other employees of the Companies reporting to such chief investment or other similar officer, provided that any access to such employees shall be subject to the prior approval (not to be unreasonably withheld or delayed) and supervision of such chief investment or other similar officer, (iii) listen via telephone to, but not speak during, any substantive meetings at which division heads discuss material decisions affecting the Companies and the Transferred Subsidiaries regarding Investment Assets with the president, chief executive officer, or other similar executive officer of any of the Companies or any of the Transferred Subsidiaries (other than meetings independent directors of the board of directors of AUK) with American Acorn Services, LLC or a similar Affiliate of Buyer pursuant to which such entity will provide investment advisory services to AUK through the Companies and the Transferred Subsidiaries), and (iv) in addition to the reports provided under Section 5.16(a), receive reasonable access to lists of Investment Assets, Investment Asset Transactions, information concerning executed realized gains and losses and cash flows and other investment activity reports (including performance and risk analysis reports) generated by the Companies in the Ordinary Course of BusinessClosing Date; provided that nothing in this sentence shall relieve Buyer of its obligations under Section 4.3. After the applicable Company or Transferred Subsidiary may withhold any information date hereof and exclude such observer from any meeting or portion thereof if access prior to such information or attendance Closing, at such meeting could adversely affect the attorney-client privilege between any of the Companies or any of the Transferred Subsidiaries and its counsel, result in disclosure of Trade Secrets, or result in a violation of applicable Law. For the avoidance of doubteither party’s request, the Companies parties shall discuss and the Transferred Subsidiaries shall have sole discretion consider in good faith entering into one or more investment advisory agreements with respect American Acorn Services, LLC or a similar Affiliate of Buyer pursuant to all Investment Asset Transactions, subject to the limitations set forth on Section 5.16(b) of the Seller Disclosure Letter. For purposes of clarification and without prejudice to the Acquiror’s rights under Section 5.16(b), the observer’s rights under this Section 5.16(c) are limited to the right to listen, take notes and, except with respect to the observer’s rights in clauses (i) and (iii) above, ask questions. Except as set forth in Section 5.16(b), the Acquiror’s rights under this Section 5.16 shall not require the Companies or the Transferred Subsidiaries to wait for or to solicit any opinions of the observer or the Acquiror on any matter, action, non-action or decision whatsoever.which such entity will provide
Appears in 1 contract
Samples: Stock Purchase Agreement (Ambac Financial Group Inc)
Investment Assets. (a) (i) From the date hereof through the Closing, the Parent shall deliver to the Acquiror, on a weekly basis, a true, correct and complete list of all purchases, acquisitions, commitments, derivatives, transactions, sales and dispositions during the previous week of Investment Assets of any of the Companies or any of the Transferred Subsidiaries and all investments and reinvestments of income and proceeds in respect thereof (such purchases, acquisitions, commitments, derivatives, transactions, sales, dispositions, investments and reinvestment, the “Investment Asset Transactions”), including the dates of each such Investment Asset Transaction and the book value or amortized cost and market value of the associated Investment Asset, (ii) no later than 30 days after the last day of each fiscal quarter prior to the Closing, the Parent shall deliver to the Acquiror a true, correct and complete list of the Investment Assets as of such quarter end date, and (iii) for the five Business Days prior to the anticipated Closing Date, as reasonably practicable, the Parent shall deliver to the Acquiror daily updates of the Investment Asset Transactions. The Parent shall provide to the Acquiror, on a periodic basis, the regular investment reports that are provided to the Chief Investment Officer of any of the Companies or any of the Transferred Subsidiaries.
(b) The Parent shall provide the Acquiror written notice of any Company’s or any Transferred Subsidiary’s intention to effect an Investment Asset Transaction the book value of which exceeds ¥3,010,000,000 per transaction or series of related transactions, excluding (i) transactions relating to Investment Assets belonging to one or more separate accounts of any Company or any Transferred Subsidiary or (ii) an Investment Asset Transaction in Japanese government bonds that does not exceed ¥5,000,000,000. The Parent shall, and shall cause the applicable Company or Transferred Subsidiary to, at least five Business Days prior to effecting such Investment Asset Transaction, (i) afford the Acquiror with a reasonable opportunity to review the principal terms and relevant financial data relating to such proposed transaction (or series of related Investment Asset Transactions) and (ii) consider in good faith the views and comments of the Acquiror in connection with the proposed transaction (or series of related transactions). Notwithstanding anything to the contrary in this Agreement, including Section 5.01, but subject to the immediately following sentence, the Parent shall cause the Companies and the Transferred Subsidiaries not to purchase or otherwise acquire any of the Investment Assets listed on Section 5.16(b)(i) of the Seller Disclosure Letter or enter into any derivative transactions, swaps, caps, floors, options or other risk management arrangements with any of the counterparties listed on Section 5.16(b)(ii) of the Seller Disclosure Letter. For Investment Asset Transactions prohibited by the immediately preceding sentence, to the extent Parent or the applicable Company or Transferred Subsidiary provides written notice (by email with receipt confirmed) to the Representative of the Acquiror designated as an observer pursuant to Section 5.16(c), including the principal terms and relevant financial data relating to a proposed transaction (or series of related Investment Asset Transactions), Acquiror shall provide a written response within the time periods specified in Section 5.16(b)(ii) of the Seller Disclosure Letter following receipt of such written notice, either providing consent or withholding consent for such Investment Asset Transaction (or series of related Investment Asset Transactions), and failure by the Acquiror to respond in writing to such request within such applicable time period shall be deemed consent to the Investment Asset Transaction (or series of related Investment Asset Transactions) for purposes of the immediately preceding sentence.
(c) Prior to the Closing, Seller shall use commercially reasonable efforts to cause each of the Acquiror Acquired Companies (other than OneBeacon Insurance) to sell, transfer or exchange all of their investment assets, other than those on deposit with Governmental Authorities, for Cash Equivalents, it being agreed that Seller shall have no obligation to cause any of the Acquired Companies to sell investment assets pursuant to this Section 5.15 at a price below the price that an unaffiliated and willing purchaser would pay and an unaffiliated and willing seller would accept, neither being under any compulsion to buy or to sell and both having reasonable knowledge of relevant facts. Prior to the Closing and subject to Section 5.15, Seller shall use commercially reasonable efforts to cause OneBeacon Insurance’s investment assets to consist of Acceptable Investments, other than those on deposit with Governmental Authorities; provided, however, that Purchaser may, upon written notice (the “Investment Notice”) (which notice may be in the form of electronic mail or facsimile) delivered to Seller no later than 9:00 a.m., NYCT, six (6) Business Days prior to the Closing Date (the “Notification Date”), request that Seller cause OneBeacon Insurance to hold at the Closing a portfolio consisting of Cash Equivalents and up to $100 million fair market value (based on then current market price) of other Acceptable Investments (the “Maximum Investment Notice Amount”) as specified in the Investment Notice; provided further that any such Investment Notice shall include the specific name, requested par amount, CUSIP and stated final maturity date of each of such non-cash Acceptable Investments requested by Purchaser, the aggregate par amount of all such non-cash Acceptable Investments (not to exceed the Maximum Investment Notice Amount) and Purchaser’s preferred order of priority of purchase of such Acceptable Investments. The failure by Purchaser to deliver the Investment Notice by the applicable time set forth in this Section 5.15(a) shall be deemed to be a waiver of the right of Purchaser to designate deliver such notice.
(b) After the execution of this Agreement and prior to Closing, to the extent that any investment asset of an Acquired Company (other than OneBeacon Insurance) on deposit with a Representative as an observer. The observer Governmental Authority shall have mature, be prepaid or redeemed or otherwise converted to cash, Seller shall cause such Acquired Company following delivery of cash payable on or with respect to such maturity, purchase, redemption or conversion to cause such cash to remain on deposit with the right applicable Governmental Authority or, if required by applicable Law, to invest such cash in investment assets with maturities of the greater of (i) listen via telephone tothirty (30) days or less and (ii) the minimum tenor required by the applicable Governmental Authority; provided, but not speak duringthat such investments comply with applicable Law. If Purchaser delivers to Seller a written notice as to investment of maturing deposited investment assets of OneBeacon Insurance (the “Deposited Investments Notice”), then, to the extent that any substantive meetings investment asset of OneBeacon Insurance on deposit with a Governmental Authority shall mature, be prepaid or redeemed or otherwise converted to cash on or after the date that is ten (10) Business Days following receipt of such Deposited Investments Notice, Seller shall cause OneBeacon Insurance, following delivery of cash payable on or with respect to such maturity, purchase, redemption or conversion, to cause an amount of such cash specified in the Deposited Investment Notice, up to a maximum of $25,000,000, to remain on deposit with the applicable Governmental Authority or, if required by applicable Law, to invest such cash in investment assets with maturities of the greater of (i) thirty (30) days or less and (ii) the minimum tenor required by the applicable Governmental Authority; provided, that such investments comply with applicable Law.
(c) In the event Purchaser shall have delivered an Investment Notice in accordance with the terms of Section 5.15(a), then, on the first Business Day immediately following the Notification Date (the “Investment Purchase Date”), Seller shall use commercially reasonable efforts to cause the investment committee portfolio of OneBeacon Insurance as of the close of business on the Investment Purchase Date and subject to the settlement of all unsettled trades to consist of Cash Equivalents and Acceptable Investments as designated in the Investment Notice; provided that (i) Seller shall have no obligation to cause any of the Acquired Companies to sell investment assets pursuant to this Section 5.15 at a price below the price that an unaffiliated and willing purchaser would pay and an unaffiliated and willing seller would accept, neither being under any compulsion to buy or to sell and both having reasonable knowledge of relevant facts; (ii) Seller shall have no obligation to cause any of the Transferred Subsidiaries Acquired Companies to sell assets on deposit with Governmental Authorities; and (iii) Seller shall have no obligation to cause OneBeacon Insurance to purchase Acceptable Investments pursuant to this Section 5.15 at a price in excess of the price that an unaffiliated and willing purchaser would pay and an unaffiliated and willing seller would accept, neither being under any compulsion to buy or to sell and both having reasonable knowledge of relevant facts. Furthermore, purchases of each Acceptable Investment pursuant to the Investment Notice will be made in lots of $3 million par value, with any other similar body responsible for residual cash amount below the investment policies of Maximum Investment Notice Amount to remain in Cash Equivalents. To the extent that on the Investment Purchase Date, Seller is unable to cause OneBeacon Insurance to purchase any of the Companies or specified securities in the amount and of the type specified in the Investment Notice, in each case, subject to any applicable limitations set forth in this Section 5.15, then the Seller will instead cause OneBeacon Insurance to deliver Cash Equivalents in the same amount, again subject to any applicable limitations set forth in this Section 5.15.
(d) Purchaser acknowledges and agrees that (i) Seller shall not be required to cause any of the Transferred SubsidiariesAcquired Companies to purchase, nor shall Seller be liable for not causing any Acquired Companies to purchase, any security that any such Acquired Company is not permitted to hold pursuant to applicable Law, and (ii) have reasonable access, during normal business hours, to the chief investment officer (or other similar executive officer in charge purchase of the investment activities of any security by any of the Acquired Companies or any of the Transferred Subsidiaries) and to other employees of the Companies reporting to such chief investment or other similar officer, provided that any access to such employees as contemplated by this Section 5.15 shall be subject to the availability of such security in an open market.
(e) By no later than 3:00 p.m., NYCT, on the Business Day immediately following the Investment Purchase Date, Seller shall deliver a certificate (the “Portfolio Notice”) (which notice may be in the form of electronic mail or facsimile) to Purchaser setting forth the investment assets in the investment portfolio of OneBeacon Insurance and the amount of such assets in such portfolio after giving effect to the trades executed on the Investment Purchase Date pursuant to this Section 5.15, which portfolios shall be held by OneBeacon Insurance as of the Closing (subject to any market fluctuations of the investment assets contained in such portfolio that may occur prior approval to the Closing and the settlement of all unsettled trades).
(not f) No later than 9:00 a.m., NYCT, on the Business Day immediately preceding the Closing Date Seller shall deliver a certificate (the “Trade Completion Certificate”) (which notice may be in the form of electronic mail or facsimile) to Purchaser (i) confirming that the last of the purchases or sales that Seller shall have caused to be unreasonably withheld made as contemplated by Section 5.15(c) shall have been finally settled (or delayedfailed to be settled) and supervision of such chief investment or other similar officerin accordance with applicable marketplace rules, (iiiii) listen via telephone to, but not speak during, any substantive meetings at which division heads discuss material decisions affecting the Companies and the Transferred Subsidiaries regarding Investment Assets certifying that Seller has complied with the president, chief executive officer, or other similar executive officer of any of the Companies or any of the Transferred Subsidiaries (other than meetings of the board of directors of the Companies and the Transferred Subsidiaries), and (iv) in addition to the reports provided under Section 5.16(a), receive reasonable access to lists of Investment Assets, Investment Asset Transactions, information concerning executed realized gains and losses and cash flows and other investment activity reports (including performance and risk analysis reports) generated by the Companies in the Ordinary Course of Business; provided that the applicable Company or Transferred Subsidiary may withhold any information and exclude such observer from any meeting or portion thereof if access to such information or attendance at such meeting could adversely affect the attorney-client privilege between any of the Companies or any of the Transferred Subsidiaries and its counsel, result in disclosure of Trade Secrets, or result in a violation of applicable Law. For the avoidance of doubt, the Companies and the Transferred Subsidiaries shall have sole discretion with respect to all Investment Asset Transactions, subject to the limitations set forth on Section 5.16(b) of the Seller Disclosure Letter. For purposes of clarification and without prejudice to the Acquiror’s rights under Section 5.16(b), the observer’s rights obligations under this Section 5.16(c5.15 in all material respects.
(g) are limited Seller shall be responsible for any Taxes owed in respect of gains realized on the sale of assets pursuant to the right to listen, take notes and, except with respect to the observer’s rights in clauses (i) and (iii) above, ask questions. Except as set forth in Section 5.16(b), the Acquiror’s rights under this Section 5.16 shall not require the Companies or the Transferred Subsidiaries to wait for or to solicit any opinions of the observer or the Acquiror on any matter, action, non-action or decision whatsoever5.15.
Appears in 1 contract
Samples: Stock Purchase Agreement (OneBeacon Insurance Group, Ltd.)
Investment Assets. (a) The Seller Parties shall, within fifteen (15) Business Days following the end of each calendar month, deliver to the Buyer a list of (i) all Investment Assets owned by any of the Acquired Companies as of such month end, and if readily available, the market value thereof as of such month end, (ii) all Investment Assets sold or otherwise disposed of by the Acquired Companies during the preceding month, (iii) a list of the Investment Assets acquired by the Acquired Companies during the preceding month and (iv) all Investment Assets owned by any of the Acquired Companies that, to the Knowledge of the Seller Parties, are in arrears or breach or default in the payment of principal or interest or dividends or are, or under applicable SAP should be, classified as non-performing, non-accrual, ninety (90) days past due, still accruing and doubtful of collection, in foreclosure or any comparable classification, or are permanently impaired to any extent.
(b) From time to time beginning on the date on which the Buyer shall have obtained the last of the two (2) Form A Approvals, (i) the Buyer may deliver a written notice (an “Asset Sale Notice”) to the Seller Parties requesting the Seller Parties to cause any Acquired Company to sell or otherwise transfer its entire interest in any Investment Asset held by it to any Person other than an Acquired Company or any of its Affiliates, (ii) the Seller Parties shall consider such request in good faith within five (5) Business Days of receipt of the applicable Asset Sale Notice. If the Seller Parties determine that the sale or other transfer of the Investment Asset contemplated by such Asset Sale Notice by the applicable Acquired Company (i) complies with such Acquired Company’s investment guidelines for its Investment Assets, (ii) would not cause such Acquired Company to violate any Applicable Law and (iii) would not have any material adverse financial, Tax or other effect on such Acquired Company, then the Seller Parties shall cause the applicable Acquired Company to sell or transfer the Investment Assets that are the subject of such Asset Sale Notice within five (5) Business Days of receipt of the applicable Asset Sale Notice, but in any case prior to the Closing.
(c) From the date hereof through the Closing, the Parent Seller Parties shall deliver cause APNY not to the Acquiror, on a weekly basis, a true, correct and complete list of all purchases, acquisitions, commitments, derivatives, transactions, sales and dispositions during the previous week of Investment Assets of sell or otherwise transfer any of the Companies or any assets listed in Exhibit E to the Form of the Transferred Subsidiaries and all investments and reinvestments of income and proceeds in respect thereof (such purchases, acquisitions, commitments, derivatives, transactions, sales, dispositions, investments and reinvestment, APNY Coinsurance Agreement attached as Exhibit 2 hereto without the “Investment Asset Transactions”), including the dates of each such Investment Asset Transaction and the book value or amortized cost and market value prior written consent of the associated Investment AssetBuyer, (ii) no later than 30 days after which shall not be unreasonably withheld, delayed or conditioned by the last day Buyer, except as may be required by applicable Law. In the event of each fiscal quarter maturity of any such asset prior to the Closing, such asset shall be replaced on Exhibit E with other assets of APNY mutually agreed by the Parent shall deliver to the Acquiror a true, correct and complete list of the Investment Assets as of such quarter end date, and (iii) for the five Business Days prior to the anticipated Closing Date, as reasonably practicable, the Parent shall deliver to the Acquiror daily updates of the Investment Asset Transactions. The Parent shall provide to the Acquiror, on a periodic basis, the regular investment reports that are provided to the Chief Investment Officer of any of the Companies or any of the Transferred Subsidiaries.
(b) The Parent shall provide the Acquiror written notice of any Company’s or any Transferred Subsidiary’s intention to effect an Investment Asset Transaction the book value of which exceeds ¥3,010,000,000 per transaction or series of related transactions, excluding (i) transactions relating to Investment Assets belonging to one or more separate accounts of any Company or any Transferred Subsidiary or (ii) an Investment Asset Transaction in Japanese government bonds that does not exceed ¥5,000,000,000. The Parent shall, and shall cause the applicable Company or Transferred Subsidiary to, at least five Business Days prior to effecting such Investment Asset Transaction, (i) afford the Acquiror with a reasonable opportunity to review the principal terms and relevant financial data relating to such proposed transaction (or series of related Investment Asset Transactions) and (ii) consider in good faith the views and comments of the Acquiror in connection with the proposed transaction (or series of related transactions). Notwithstanding anything to the contrary in this Agreement, including Section 5.01, but subject to the immediately following sentence, the Parent shall cause the Companies Buyer and the Transferred Subsidiaries not to purchase or otherwise acquire any of the Investment Assets listed on Section 5.16(b)(i) of the Seller Disclosure Letter or enter into any derivative transactions, swaps, caps, floors, options or other risk management arrangements with any of the counterparties listed on Section 5.16(b)(ii) of the Seller Disclosure Letter. For Investment Asset Transactions prohibited by the immediately preceding sentence, to the extent Parent or the applicable Company or Transferred Subsidiary provides written notice (by email with receipt confirmed) to the Representative of the Acquiror designated as an observer pursuant to Section 5.16(c), including the principal terms and relevant financial data relating to a proposed transaction (or series of related Investment Asset Transactions), Acquiror shall provide a written response within the time periods specified in Section 5.16(b)(ii) of the Seller Disclosure Letter following receipt of such written notice, either providing consent or withholding consent for such Investment Asset Transaction (or series of related Investment Asset Transactions), and failure by the Acquiror to respond in writing to such request within such applicable time period shall be deemed consent to the Investment Asset Transaction (or series of related Investment Asset Transactions) for purposes of the immediately preceding sentenceParties.
(c) Prior to the Closing, the Acquiror shall have the right to designate a Representative as an observer. The observer shall have the right to (i) listen via telephone to, but not speak during, any substantive meetings of the investment committee of any of the Companies or any of the Transferred Subsidiaries or any other similar body responsible for the investment policies of any of the Companies or any of the Transferred Subsidiaries, (ii) have reasonable access, during normal business hours, to the chief investment officer (or other similar executive officer in charge of the investment activities of any of the Companies or any of the Transferred Subsidiaries) and to other employees of the Companies reporting to such chief investment or other similar officer, provided that any access to such employees shall be subject to the prior approval (not to be unreasonably withheld or delayed) and supervision of such chief investment or other similar officer, (iii) listen via telephone to, but not speak during, any substantive meetings at which division heads discuss material decisions affecting the Companies and the Transferred Subsidiaries regarding Investment Assets with the president, chief executive officer, or other similar executive officer of any of the Companies or any of the Transferred Subsidiaries (other than meetings of the board of directors of the Companies and the Transferred Subsidiaries), and (iv) in addition to the reports provided under Section 5.16(a), receive reasonable access to lists of Investment Assets, Investment Asset Transactions, information concerning executed realized gains and losses and cash flows and other investment activity reports (including performance and risk analysis reports) generated by the Companies in the Ordinary Course of Business; provided that the applicable Company or Transferred Subsidiary may withhold any information and exclude such observer from any meeting or portion thereof if access to such information or attendance at such meeting could adversely affect the attorney-client privilege between any of the Companies or any of the Transferred Subsidiaries and its counsel, result in disclosure of Trade Secrets, or result in a violation of applicable Law. For the avoidance of doubt, the Companies and the Transferred Subsidiaries shall have sole discretion with respect to all Investment Asset Transactions, subject to the limitations set forth on Section 5.16(b) of the Seller Disclosure Letter. For purposes of clarification and without prejudice to the Acquiror’s rights under Section 5.16(b), the observer’s rights under this Section 5.16(c) are limited to the right to listen, take notes and, except with respect to the observer’s rights in clauses (i) and (iii) above, ask questions. Except as set forth in Section 5.16(b), the Acquiror’s rights under this Section 5.16 shall not require the Companies or the Transferred Subsidiaries to wait for or to solicit any opinions of the observer or the Acquiror on any matter, action, non-action or decision whatsoever.
Appears in 1 contract
Samples: Stock Purchase and Sale Agreement (Universal American Corp.)
