PRE-COMPLETION UNDERTAKINGS. Conduct of business before Completion 2.1 Subject to Clause 2.2, FIHL shall use its reasonable best efforts to procure, to the extent such matter is within its power and control (whether by exercising its right as a holder of shares in any MGA Group Company or pursuant to any agreement, arrangement or understanding to which it is a party) that, between the date of this Agreement and Completion, no MGA Group Company will without the prior written approval of the Investors’ Representative (such approval not to be unreasonably withheld, conditioned or delayed) undertake any of the acts or matters listed in Schedule 3. 2.2 Clause 2.1 shall not operate so as to restrict or prevent: 2.2.1 entering into the Binder Agreements, including any matter permitted under the terms of the Binder Agreements; 2.2.2 subject always to Clause 2.5, the implementation of any transaction or the taking of any action permitted or provided for or contemplated by the Structure Steps Plan or any Final Structure Steps Document, including any negotiation of the purchase of the non-controlling interests in Pine Walk Capital Limited as contemplated at Structure Steps 4 and 20; 2.2.3 any matters that do not involve the negotiation, entering into, termination and/or other material variation or amendment of a Material Contract and that are in the ordinary course of business for Pine Walk Capital Limited and its cells and/or its subsidiaries and are conducted in a manner consistent with the running of the business of such entities in the prior twelve (12) months (to the extent that parts of the MGA Group’s business existed during such period, acknowledging that the MGA Group is to be established pursuant to the implementation of the Structure Steps Plan), including: (a) the acquisition of shares or any other interest in any person by Pine Walk Capital Limited where the business of such person is underwriting (re)insurance as a managing general agent on behalf of the Balance Sheet Business, pursuant to delegated authority granted by one or more FIHL subsidiaries; (b) the creation, allotment, issue or transfer by any shareholder (other than an MGA Group Company) to another shareholder of, or the grant of any option over or other right to subscribe for or purchase, or redeem, buy back, sub-divide, consolidate, re-denominate, convert, reduce, cancel, restrict or alter the rights attaching to, any share or loan capital or securities or securities convertible into any of the foregoing of Pine Walk Capital Limited, or its cells or subsidiaries pursuant to any employee share scheme in place in connection therewith or otherwise; (c) the declaration, authorisation, making or the paying of any dividends (in cash or in specie) or other distribution of a similar nature or taxed in the same way as a dividend by Pine Walk Capital Limited or any of the cells and/or the subsidiaries of Pine Walk Capital Limited; and (d) the commencement of any litigation or arbitration proceedings or the compromise, cessation or settlement of any litigation or arbitration proceedings or any action, demand or dispute or waiver of a right in relation to any litigation or arbitration proceedings in connection with the handling of (re)insurance claims by Pine Walk Capital Limited or the cells and/or the subsidiaries of Pine Walk Capital Limited; 2.2.4 Pine Walk Europe establishing a permanent UK branch and acquiring a permanent Regulatory Authorisation; 2.2.5 the implementation of any transaction or the taking of any action required, contemplated, permitted or provided for by any Transaction Document; 2.2.6 any matter required in order to comply with any law, court order or regulation (including: (i) the requirements of any Regulatory Authority or Regulatory Authorisation; and (ii) any action of any director of an MGA Group Company that such director believes is reasonably required in order to comply with his statutory or fiduciary directors’ duties) or published policy of the MGA Group being undertaken by any MGA Group Company; 2.2.7 any matter reasonably undertaken by any MGA Group Company immediately following an emergency or disaster or other serious incident or circumstance with the intention of minimising any adverse effect on the MGA Group (and of which the Investors’ Representative will be promptly notified); 2.2.8 the completion or performance of any obligation undertaken pursuant to any contract or arrangement entered into by any MGA Group Company prior to the date of this Agreement; 2.2.9 any increase in emoluments of any category of employees of any MGA Group Company where such increase is made in accordance with the normal practice of the relevant employing MGA Group Company; 2.2.10 any payment being made by any MGA Group Company for or in respect of any Tax in the ordinary and usual course of business in a manner consistent with past practice; 2.2.11 any matter being undertaken by any MGA Group Company at the written request, or with the prior written consent, of the Investors’ Representative (such consent not to be unduly withheld, conditioned or delayed); 2.2.12 any investment in A Ordinary Shares of Topco on substantially the same terms as the Subscription Agreements up to an aggregate subscription amount of $[******] by any person reasonably satisfactory to the Investors’ Representative and the Management Seller Representative; and 2.2.13 any incurrence of any liability by an MGA Group Company in connection with the facilities referred to in the Debt Commitment Letter (including any liability to FIHL if FIHL makes any payments on behalf of any MGA Group Company in connection with such facilities). 2.3 If FIHL requests the approval of the Investors’ Representative pursuant to Clause 2.1 or otherwise under this Agreement, the Investors’ Representative shall respond to such request as soon as reasonably practicable and in any event within five Business Days after such request is made. Failure of the Investors’ Representative to respond within that period shall be deemed to be an approval to proceed with the relevant act, matter or course of conduct which is the subject of the request. In no circumstances is this Clause 2 intended to allow any Investor the ability to control the Group or the MGA Group. 2.4 At or prior to Completion, each of the Parties shall implement, or procure the implementation of, in each case to the extent within their power, each of the Structure Steps in accordance with the terms and conditions of the Final Structure Steps Documents and each such Structure Step shall be implemented in the order set out in the Structure Steps Plan (the “Reorganisation”). 2.5 FIHL shall use its reasonable best efforts to procure that the Final Structure Step Documents are drafted (including, without limitation, by proposing such customary provisions that are consistent with generally accepted market practice) by no later than Completion, provided that no Final Structure Step Document may be entered into if it would or would reasonably be expected to, in comparison to the position agreed in the Structure Steps Plan, negatively impact in any material way, directly or indirectly, any Investor or the MGA Group (an “Adverse Change”), without the prior written consent of the Investors’ Representative (such consent not to be unreasonably withheld, conditioned or delayed); provided that, (i) if no reply is given within two Business Days of the relevant Final Structure Step Document being provided to each Investor (or each Investor’s counsel), the Investors’ Representative shall be deemed to have approved such Final Structure Step Document; (ii) if a reply is given by the Investors’ Representative (or the Investors’ counsel) describing a change to the position agreed in the Structure Steps Plan which the Investors’ Representative believes in good faith could be an Adverse Change, then FIHL, the relevant Parties and the Investors shall cooperate in good faith using reasonable best efforts on a prompt basis to revise such Final Structure Step Documents such that it does not constitute an Adverse Change and allowing their implementation before the Long Stop Date; (iii) the impact of any change in tax law arising on or after the date of this Agreement shall be excluded in any such determination of any Adverse Change; and (iv) if an Adverse Change could disproportionately negatively impact any Investor in any material way, relative to the other Investors, such Investor shall also have the same rights as the Investors’ Representative set forth in this Clause 2.5 mutatis mutandis. 2.6 Each of the Parties shall, and shall procure that their respective Related Persons and their Related Persons’ respective representatives shall, in each case to the extent within their power: 2.6.1 exercise all rights and privileges and perform all duties and obligations, whether as a security holder or otherwise, including by attending or voting at meetings of any security holders, executing consents to short notice in respect of any such meetings, and receiving, approving or executing any written resolution circulated to any security holder, in each case necessary or desirable to approve the Reorganisation; and 2.6.2 not enter into any agreement or arrangement which may impede or frustrate the Reorganisation. 2.7 Subject to Clause 4.7, at or prior to Completion, FIHL shall, and shall procure that the relevant members of the Group to, enter into, adopt or otherwise implement the Binder Agreements.
Appears in 2 contracts
Sources: Cooperation Agreement (Fidelis Insurance Holdings LTD), Cooperation Agreement (Fidelis Insurance Holdings LTD)
PRE-COMPLETION UNDERTAKINGS. Conduct of business before Completion
2.1 Subject to Clause 2.2, FIHL shall use its reasonable best efforts to procure, 6.1 The Seller undertakes to the extent such matter is within its power and control (whether by exercising its right as a holder of shares in any MGA Group Company or pursuant to any agreement, arrangement or understanding to which it is a party) Buyer that, between from the date of this Agreement and to Completion, no MGA Group Company it will use its good faith efforts to procure, so far as it is able in its capacity as a shareholder, that the UKTV Business is carried on in the ordinary course and in particular the Seller shall not vote, in its capacity as a shareholder, and shall so far as it is able procure that the directors of the Target Companies and UK Progco appointed by it by virtue of its holding of Target Shares in the respective Target Companies shall not vote in favour of any matter (not being a matter within the ordinary course of business of the UKTV Business) which requires a Unanimous Shareholders’ Decision or Special Majority Consent (as each of those terms is defined in the relevant UKTV Shareholders’ Agreement) under the UKTV Shareholders’ Agreements, without the prior written approval of the Investors’ Representative (such approval Buyer, which shall not to be unreasonably withheldrefused or unduly delayed (and which shall be deemed to have been given by the Buyer if not specifically refused in writing by notice given to the Seller within seven (7) days of a request in writing by the Seller), conditioned provided that nothing in this Clause 6 shall:
(a) operate to prevent, limit or delayed) undertake restrict the Seller or any member of the acts or matters listed in Schedule 3.
2.2 Clause 2.1 shall not operate so as to restrict or preventVirgin Media Group:
2.2.1 entering into (i) from approving the Binder Agreements, including any matter permitted under the terms of the Binder Agreements;
2.2.2 subject always to Clause 2.5, the implementation declaration of any transaction dividend or the taking making of any action permitted distribution or provided for payment of interest or contemplated by the Structure Steps Plan principal pursuant to any Shareholder Financing Agreement or any Final Structure Steps Document, including any negotiation of the purchase of the non-controlling interests in Pine Walk Capital Limited as contemplated at Structure Steps 4 and 20;
2.2.3 any matters that do not involve the negotiation, entering into, termination and/or other material variation or amendment of a Material Contract and that are payment in the ordinary course of business for Pine Walk Capital Limited and its cells and/or its subsidiaries and are conducted in a manner consistent with the running from any of the business Target Companies including any dividend declared on or after the date hereof by reference to any period ending on or before the Completion Date (including the declaration of the UKTV Dividend and/or the BBCW Dividend; or
(ii) from receiving payment of any such entities principal or interest or other such payment by any Target Company or from receiving a dividend or distribution as specified in Clause 6.1(a)(i) above (including the prior twelve UKTV Dividend); or
(12iii) months operate to prevent, limit or restrict the making by any Target Company of any such payment as referred to in Clause 6.1(a)(i) above; and
(b) to the extent that parts the provisions of this Clause 6.1 would operate to prevent, limit or restrict any decision or action which the Target Companies, UK Progco and/or any other Target Group Company wishes to take, the same may nevertheless be taken if and to the extent it is permitted or required by any provision of this Agreement, any other Transaction Document, the Consent and Waiver Letter, the SHA/Guarantee Deed of Release or the Management and Marketing Termination Agreement, or reasonably required to give effect to this Agreement, any other Transaction Document, the Consent and Waiver Letter, the SHA/Guarantee Deed of Release or the Management and Marketing Termination Agreement.
6.2 The Seller further undertakes to the Buyer that, to the extent it has not already done so, promptly following the signature of this Agreement it will send the Ofcom Notification to Ofcom.
6.3 Without prejudice to the generality of Clause 3 and to the Seller’s obligations under the ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇ and the Jersey Competition Law and the obligations of the MGA GroupTarget Companies thereunder, the Buyer shall submit a merger notification for the merger control clearances contemplated by Clause 3 not later than fifteen (15) Business Days from the date of this Agreement and shall take the lead, subject to the obligation to cooperate with the Seller (and the Seller’s business existed during obligation to cooperate with the Buyer) in relation to such periodfilings, acknowledging in dealings with the Irish Competition Authority and/or the JCRA. The Seller and the Buyer shall co-operate with one another in respect of the preparation of such applications and in subsequent dealings with the Irish Competition Authority and/or the JCRA and the Buyer agrees to have reasonable regard to any comments which the Seller makes to the Buyer in respect of any proposed communication.
6.4 To the extent that the MGA Group Seller is required to be established pursuant co-operate in the making and pursuit of the application to the implementation of Irish Competition Authority and/or the Structure Steps Plan), includingJCRA under Clause 6.3 it shall:
(a) deal with all requests and enquiries from the acquisition of shares or any other interest Irish Competition Authority and/or the JCRA promptly in consultation with the Buyer and in any person by Pine Walk Capital Limited where the business of such person is underwriting (re)insurance as a managing general agent on behalf of the Balance Sheet Business, pursuant to delegated authority granted by one or more FIHL subsidiariesevent in accordance with any relevant time limit;
(b) promptly provide all information and assistance reasonably required by the creation, allotment, issue Irish Competition Authority and/or the JCRA (or transfer by for the purpose of making any shareholder (other than an MGA Group Company) to another shareholder of, or the grant of any option over or other right to subscribe for or purchase, or redeem, buy back, sub-divide, consolidate, re-denominate, convert, reduce, cancel, restrict or alter the rights attaching to, any share or loan capital or securities or securities convertible into any of the foregoing of Pine Walk Capital Limited, or its cells or subsidiaries pursuant submission to any employee share scheme in place in connection therewith relevant Authority) upon being requested to do so by the relevant Authority or otherwiseby the Buyer;
(c) where reasonably practicable and lawfully permitted, provide to the declaration, authorisation, making or the paying Buyer copies of any dividends (in cash or in specie) or other distribution of a similar nature or taxed in proposed, submitted and received communication with the same way as a dividend by Pine Walk Capital Limited or any of the cells Irish Competition Authority and/or the subsidiaries JCRA (other than those of Pine Walk Capital Limitedan administrative nature) to which the Seller is party, together with any supporting documentation or information reasonably requested by the Buyer, provided that the Seller shall not be required to disclose any Confidential Information or business secrets which have not previously been disclosed to the Buyer.
6.5 As the Buyer is responsible under Clause 6.3 for applying for any approval, consent or clearance from the Irish Competition Authority and/or the JCRA, it shall:
(a) (without prejudice to Clause 6.3) make the applications and any associated notifications, requests or submissions validly and promptly to the Irish Competition Authority and/or the JCRA (as applicable) and shall pay all relevant filing fees;
(b) deal with all requests and enquiries from the Irish Competition Authority and/or the JCRA (as applicable) promptly in consultation with the Seller and in any event in accordance with any relevant time limit;
(c) promptly provide all information and assistance reasonably required by the Irish Competition Authority and/or the JCRA (or for the purpose of making any submission to any relevant Authority) upon being requested to do so by the Irish Competition Authority, the JCRA or by the Seller; and
(d) where permitted, provide to the commencement Seller copies of any litigation or arbitration proceedings or the compromiseproposed, cessation or settlement of any litigation or arbitration proceedings or any action, demand or dispute or waiver of a right in relation to any litigation or arbitration proceedings in connection submitted and received communication with the handling of (re)insurance claims by Pine Walk Capital Limited or the cells Irish Competition Authority and/or the subsidiaries JCRA (other than those of Pine Walk Capital Limited;
2.2.4 Pine Walk Europe establishing a permanent UK branch and acquiring a permanent Regulatory Authorisation;
2.2.5 an administrative nature) to which the implementation of any transaction or the taking of any action requiredBuyer is party, contemplated, permitted or provided for by any Transaction Document;
2.2.6 any matter required in order to comply together with any law, court order supporting documentation or regulation (including: (i) information reasonably requested by the requirements of any Regulatory Authority or Regulatory Authorisation; and (ii) any action of any director of an MGA Group Company that such director believes is reasonably required in order to comply with his statutory or fiduciary directors’ duties) or published policy of the MGA Group being undertaken by any MGA Group Company;
2.2.7 any matter reasonably undertaken by any MGA Group Company immediately following an emergency or disaster or other serious incident or circumstance with the intention of minimising any adverse effect on the MGA Group (and of which the Investors’ Representative will be promptly notified);
2.2.8 the completion or performance of any obligation undertaken pursuant to any contract or arrangement entered into by any MGA Group Company prior to the date of this Agreement;
2.2.9 any increase in emoluments of any category of employees of any MGA Group Company where such increase is made in accordance with the normal practice of the relevant employing MGA Group Company;
2.2.10 any payment being made by any MGA Group Company for or in respect of any Tax in the ordinary and usual course of business in a manner consistent with past practice;
2.2.11 any matter being undertaken by any MGA Group Company at the written request, or with the prior written consent, of the Investors’ Representative (such consent not to be unduly withheld, conditioned or delayed);
2.2.12 any investment in A Ordinary Shares of Topco on substantially the same terms as the Subscription Agreements up to an aggregate subscription amount of $[******] by any person reasonably satisfactory to the Investors’ Representative and the Management Seller Representative; and
2.2.13 any incurrence of any liability by an MGA Group Company in connection with the facilities referred to in the Debt Commitment Letter (including any liability to FIHL if FIHL makes any payments on behalf of any MGA Group Company in connection with such facilities).
2.3 If FIHL requests the approval of the Investors’ Representative pursuant to Clause 2.1 or otherwise under this Agreement, the Investors’ Representative shall respond to such request as soon as reasonably practicable and in any event within five Business Days after such request is made. Failure of the Investors’ Representative to respond within that period shall be deemed to be an approval to proceed with the relevant act, matter or course of conduct which is the subject of the request. In no circumstances is this Clause 2 intended to allow any Investor the ability to control the Group or the MGA Group.
2.4 At or prior to Completion, each of the Parties shall implement, or procure the implementation of, in each case to the extent within their power, each of the Structure Steps in accordance with the terms and conditions of the Final Structure Steps Documents and each such Structure Step shall be implemented in the order set out in the Structure Steps Plan (the “Reorganisation”).
2.5 FIHL shall use its reasonable best efforts to procure that the Final Structure Step Documents are drafted (including, without limitation, by proposing such customary provisions that are consistent with generally accepted market practice) by no later than CompletionSeller, provided that no Final Structure Step Document may the Buyer shall not be entered into if it would required to disclose any Confidential Information or would reasonably be expected to, in comparison business secrets which have not previously been disclosed to the position agreed in the Structure Steps Plan, negatively impact in any material way, directly or indirectly, any Investor or the MGA Group (an “Adverse Change”), without the prior written consent of the Investors’ Representative (such consent not to be unreasonably withheld, conditioned or delayed); provided that, (i) if no reply is given within two Business Days of the relevant Final Structure Step Document being provided to each Investor (or each Investor’s counsel), the Investors’ Representative shall be deemed to have approved such Final Structure Step Document; (ii) if a reply is given by the Investors’ Representative (or the Investors’ counsel) describing a change to the position agreed in the Structure Steps Plan which the Investors’ Representative believes in good faith could be an Adverse Change, then FIHL, the relevant Parties and the Investors shall cooperate in good faith using reasonable best efforts on a prompt basis to revise such Final Structure Step Documents such that it does not constitute an Adverse Change and allowing their implementation before the Long Stop Date; (iii) the impact of any change in tax law arising on or after the date of this Agreement shall be excluded in any such determination of any Adverse Change; and (iv) if an Adverse Change could disproportionately negatively impact any Investor in any material way, relative to the other Investors, such Investor shall also have the same rights as the Investors’ Representative set forth in this Clause 2.5 mutatis mutandisSeller.
2.6 Each of the Parties shall, and shall procure that their respective Related Persons and their Related Persons’ respective representatives shall, in each case to the extent within their power:
2.6.1 exercise all rights and privileges and perform all duties and obligations, whether as a security holder or otherwise, including by attending or voting at meetings of any security holders, executing consents to short notice in respect of any such meetings, and receiving, approving or executing any written resolution circulated to any security holder, in each case necessary or desirable to approve the Reorganisation; and
2.6.2 not enter into any agreement or arrangement which may impede or frustrate the Reorganisation.
2.7 Subject to Clause 4.7, at or prior to Completion, FIHL shall, and shall procure that the relevant members of the Group to, enter into, adopt or otherwise implement the Binder Agreements.
Appears in 2 contracts
Sources: Share Purchase Agreement (Scripps Networks Interactive, Inc.), Share Purchase Agreement (Virgin Media Investments LTD)
PRE-COMPLETION UNDERTAKINGS. Conduct 6.1 Subject to the terms and conditions of business before Completionthis Agreement, the Seller and the Purchaser shall use all reasonable endeavours to procure that Completion occurs and, without prejudice to the generality of the foregoing, shall use all reasonable endeavours to cooperate with each other on and after the date of this Agreement to consummate the transactions contemplated by this Agreement.
2.1 6.2 Subject to Clause 2.2, FIHL shall use its reasonable best efforts to procure, to the extent such matter is within its power and control (whether by exercising its right as a holder of shares in any MGA Group Company or pursuant to any agreement, arrangement or understanding to which it is a party) that6.4, between the date of this Agreement and CompletionCompletion (both dates inclusive) (the “Pre-Completion Period”), no MGA Group Company the Seller shall exercise all rights available to it:
(A) to procure that the Business will without be carried on in the prior written approval ordinary course in the same manner as it was operated during the six (6) months preceding the date of this Agreement and shall use all reasonable endeavours to maintain its trade and trade connections; and
(B) in particular to procure that each applicable member of the Investors’ Representative GSK Group:
(such approval not i) uses all commercially reasonable endeavours:
(a) to maintain and keep any Regulatory Permits and ensure that all filings and notifications required to be unreasonably withheldmade in respect of the same are made in accordance with past practice during the six (6) months preceding the date of this Agreement; and
(b) to progress, conditioned in accordance with past practice during the six (6) months preceding the date of this Agreement, any applications, submissions, filings or delayedother correspondence initiated by such member of the GSK Group prior to the date of this Agreement relating to the grant of new NDAs, approvals, licences, permits, certificates, registrations, exemptions and/or authorisations in respect of the Business, unless (in either case) requested by the Purchaser or required by any applicable Governmental Entity to amend, cancel or surrender any such Regulatory Permits, applications, submissions or filings;
(ii) continues to Commercialise the Products in accordance with past practice during the six (6) months preceding the date of this Agreement and, in particular, shall not materially accelerate or increase the quantity of Products distributed to the relevant distributors, except where such acceleration or increase results from an actual increase in the orders of the relevant Products by the relevant distributor without an unusual or increased level of solicitation by a member of the Seller's Group intended to result in seasonably adjusted inventory levels of Products materially in excess of normal levels;
(iii) maintains the level of Business Inventory held for use in the Business in accordance with past practice during the six (6) months preceding the date of this Agreement;
(iv) complies with the Quality Management System to ensure that the Products sold by the Business comply with the applicable requirements of GMP;
(v) notifies the Purchaser in writing of any actual safety issue in respect of any Product (as soon as reasonably practicable after becoming aware of the same) which issue the relevant member of the GSK Group, acting reasonably and in good faith, considers material in the context of the Manufacture or Commercialisation of such Product;
(vi) continues to support trade marketing, advertising and promotion in relation to the Business in accordance with the relevant Brand Activation Grid;
(vii) pays all renewal and other official registry fees in relation to the Trade Marks included within the Business Intellectual Property and ensures that all filings and notifications required to be made in respect of the same are made in accordance with past practice during the twelve (12) months preceding the date of this Agreement, and progresses in accordance with past practice during the twelve (12) months preceding the date of this Agreement any applications or filings initiated by such member of the GSK Group prior to the date of this Agreement relating to the grant of new Trade Marks or the defence or the maintenance of Trade Marks included within the Business Intellectual Property; and
(viii) notifies the Purchaser in writing as soon as reasonably practicable after becoming aware of any third party infringement of its Business Intellectual Property which has a material impact on the relevant Brand.
6.3 Subject to Clauses 6.2 and 6.4, during the Pre-Completion Period, the Seller shall exercise all rights available to it to procure that no member of the GSK Group will undertake any of the acts or matters listed in Schedule 3.
2.2 Clause 2.1 shall not operate so as to restrict or prevent:
2.2.1 entering into the Binder Agreements, including any matter permitted under the terms of the Binder Agreements;
2.2.2 subject always to Clause 2.5, the implementation of any transaction or the taking of any action permitted or provided for or contemplated by the Structure Steps Plan or any Final Structure Steps Document, including any negotiation of the purchase of the non-controlling interests in Pine Walk Capital Limited as contemplated at Structure Steps 4 and 20;
2.2.3 any matters that do not involve the negotiation, entering into, termination and/or other material variation or amendment of a Material Contract and that are in the ordinary course of business for Pine Walk Capital Limited and its cells and/or its subsidiaries and are conducted in a manner consistent with the running of the business of such entities in the prior twelve (12) months (to the extent that parts of the MGA Group’s business existed during such period, acknowledging that the MGA Group is to be established pursuant to the implementation of the Structure Steps Plan), including:
(a) the acquisition of shares or any other interest in any person by Pine Walk Capital Limited where the business of such person is underwriting (re)insurance as a managing general agent on behalf of the Balance Sheet Business, pursuant to delegated authority granted by one or more FIHL subsidiaries;
(b) the creation, allotment, issue or transfer by any shareholder (other than an MGA Group Company) to another shareholder of, or the grant of any option over or other right to subscribe for or purchase, or redeem, buy back, sub-divide, consolidate, re-denominate, convert, reduce, cancel, restrict or alter the rights attaching to, any share or loan capital or securities or securities convertible into any of the foregoing of Pine Walk Capital Limited, or its cells or subsidiaries pursuant to any employee share scheme in place in connection therewith or otherwise;
(c) the declaration, authorisation, making or the paying of any dividends (in cash or in specie) or other distribution of a similar nature or taxed in the same way as a dividend by Pine Walk Capital Limited or any of the cells and/or the subsidiaries of Pine Walk Capital Limited; and
(d) the commencement of any litigation or arbitration proceedings or the compromise, cessation or settlement of any litigation or arbitration proceedings or any action, demand or dispute or waiver of a right 3 in relation to any litigation or arbitration proceedings in connection with the handling of (re)insurance claims by Pine Walk Capital Limited or the cells and/or the subsidiaries of Pine Walk Capital Limited;
2.2.4 Pine Walk Europe establishing a permanent UK branch and acquiring a permanent Regulatory Authorisation;
2.2.5 the implementation of any transaction or the taking of any action required, contemplated, permitted or provided for by any Transaction Document;
2.2.6 any matter required in order to comply with any law, court order or regulation (including: (i) the requirements of any Regulatory Authority or Regulatory Authorisation; and (ii) any action of any director of an MGA Group Company that such director believes is reasonably required in order to comply with his statutory or fiduciary directors’ duties) or published policy of the MGA Group being undertaken by any MGA Group Company;
2.2.7 any matter reasonably undertaken by any MGA Group Company immediately following an emergency or disaster or other serious incident or circumstance with the intention of minimising any adverse effect on the MGA Group (and of which the Investors’ Representative will be promptly notified);
2.2.8 the completion or performance of any obligation undertaken pursuant to any contract or arrangement entered into by any MGA Group Company prior to the date of this Agreement;
2.2.9 any increase in emoluments of any category of employees of any MGA Group Company where such increase is made in accordance with the normal practice of the relevant employing MGA Group Company;
2.2.10 any payment being made by any MGA Group Company for or in respect of any Tax in the ordinary and usual course of business in a manner consistent with past practice;
2.2.11 any matter being undertaken by any MGA Group Company at the written request, or with the prior written consent, of the Investors’ Representative (such consent not to be unduly withheld, conditioned or delayed);
2.2.12 any investment in A Ordinary Shares of Topco on substantially the same terms as the Subscription Agreements up to an aggregate subscription amount of $[******] by any person reasonably satisfactory to the Investors’ Representative and the Management Seller Representative; and
2.2.13 any incurrence of any liability by an MGA Group Company in connection with the facilities referred to in the Debt Commitment Letter (including any liability to FIHL if FIHL makes any payments on behalf of any MGA Group Company in connection with such facilities).
2.3 If FIHL requests the approval of the Investors’ Representative pursuant to Clause 2.1 or otherwise under this Agreement, the Investors’ Representative shall respond to such request as soon as reasonably practicable and in any event within five Business Days after such request is made. Failure of the Investors’ Representative to respond within that period shall be deemed to be an approval to proceed with the relevant act, matter or course of conduct which is the subject of the request. In no circumstances is this Clause 2 intended to allow any Investor the ability to control the Group or the MGA Group.
2.4 At or prior to Completion, each of the Parties shall implement, or procure the implementation of, in each case to the extent within their power, each of the Structure Steps in accordance with the terms and conditions of the Final Structure Steps Documents and each such Structure Step shall be implemented in the order set out in the Structure Steps Plan (the “Reorganisation”).
2.5 FIHL shall use its reasonable best efforts to procure that the Final Structure Step Documents are drafted (including, without limitation, by proposing such customary provisions that are consistent with generally accepted market practice) by no later than Completion, provided that no Final Structure Step Document may be entered into if it would or would reasonably be expected to, in comparison to the position agreed in the Structure Steps Plan, negatively impact in any material way, directly or indirectly, any Investor or the MGA Group (an “Adverse Change”), without the prior written consent of the Investors’ Representative Purchaser (such consent not to be unreasonably withheld, conditioned withheld or delayed); provided that, (i) if no reply is given within two Business Days of the relevant Final Structure Step Document being provided to each Investor (or each Investor’s counsel), the Investors’ Representative shall be deemed to have approved such Final Structure Step Document; (ii) if a reply is given by the Investors’ Representative (or the Investors’ counsel) describing a change to the position agreed in the Structure Steps Plan which the Investors’ Representative believes in good faith could be an Adverse Change, then FIHL, the relevant Parties and the Investors shall cooperate in good faith using reasonable best efforts on a prompt basis to revise such Final Structure Step Documents such that it does not constitute an Adverse Change and allowing their implementation before the Long Stop Date; (iii) the impact of any change in tax law arising on or after the date of this Agreement shall be excluded in any such determination of any Adverse Change; and (iv) if an Adverse Change could disproportionately negatively impact any Investor in any material way, relative to the other Investors, such Investor shall also have the same rights as the Investors’ Representative set forth in this Clause 2.5 mutatis mutandis.
2.6 Each of the Parties shall, and shall procure that their respective Related Persons and their Related Persons’ respective representatives shall, in each case to the extent within their power:
2.6.1 exercise all rights and privileges and perform all duties and obligations, whether as a security holder or otherwise, including by attending or voting at meetings of any security holders, executing consents to short notice in respect of any such meetings, and receiving, approving or executing any written resolution circulated to any security holder, in each case necessary or desirable to approve the Reorganisation; and
2.6.2 not enter into any agreement or arrangement which may impede or frustrate the Reorganisation.
2.7 Subject to Clause 4.7, at or prior to Completion, FIHL shall, and shall procure that the relevant members of the Group to, enter into, adopt or otherwise implement the Binder Agreements.
Appears in 1 contract
Sources: Business Sale and Purchase Agreement (Prestige Brands Holdings, Inc.)
PRE-COMPLETION UNDERTAKINGS. Conduct of business before Completion
2.1 Subject to Clause 2.2, FIHL shall use its reasonable best efforts to procure, to the extent such matter is within its power and control (whether by exercising its right as a holder of shares in any MGA Group Company or pursuant to any agreement, arrangement or understanding to which it is a party) that, between the date of this Agreement and 4.1 Pending Completion, no MGA Group Company will without the prior written approval each of the Investors’ Representative (such approval not to be unreasonably withheld, conditioned or delayed) undertake any of Vendor and the acts or matters listed in Schedule 3.
2.2 Clause 2.1 Warrantor shall not operate so as to restrict or prevent:
2.2.1 entering into the Binder Agreements, including any matter permitted under the terms of the Binder Agreements;
2.2.2 subject always to Clause 2.5, the implementation of any transaction or the taking of any action permitted or provided for or contemplated by the Structure Steps Plan or any Final Structure Steps Document, including any negotiation of the purchase of the non-controlling interests in Pine Walk Capital Limited as contemplated at Structure Steps 4 and 20;
2.2.3 any matters that do not involve the negotiation, entering into, termination and/or other material variation or amendment of a Material Contract and that are in the ordinary course of business for Pine Walk Capital Limited and its cells and/or its subsidiaries and are conducted in a manner consistent with the running of the business of such entities in the prior twelve (12) months (to the extent that parts of the MGA Group’s business existed during such period, acknowledging that the MGA Group is to be established pursuant to the implementation of the Structure Steps Plan), includingensure that:
(a) the acquisition of shares or any other interest in any person by Pine Walk Capital Limited where the business of such person is underwriting (re)insurance as a managing general agent on behalf each member of the Balance Sheet Business, pursuant Target Companies Group shall carry on its business in the ordinary and usual course and shall not make (or agree to delegated authority granted by one or more FIHL subsidiariesmake) any payment other than routine payments in the ordinary and usual course of trading;
(b) the creation, allotment, issue or transfer by any shareholder (other than an MGA Group Company) to another shareholder of, or the grant of any option over or other right to subscribe for or purchase, or redeem, buy back, sub-divide, consolidate, re-denominate, convert, reduce, cancel, restrict or alter the rights attaching to, any share or loan capital or securities or securities convertible into any each member of the foregoing of Pine Walk Capital Limited, or Target Companies Group shall take all reasonable steps to preserve and protect its cells or subsidiaries pursuant to any employee share scheme in place in connection therewith or otherwiseassets;
(c) the declarationPurchaser’s representatives shall be allowed, authorisationupon reasonable notice and during normal business hours, making access to the books and records of each member of the Target Companies Group (including, without limitation, all statutory books, minute books, leases, contracts, supplier lists and customer lists) together with the right to take copies;
(d) no member of the Target Companies Group shall do, allow or procure any act or omission which would constitute or give rise to a breach of any Warranty if the Warranties were to be repeated on or at any time before Completion by reference to the facts and circumstances then existing;
(e) prompt disclosure is made to the Purchaser of all relevant information which comes to the notice of the Vendor or the paying Warrantor in relation to any fact or matter (whether existing on or before the date of this Agreement or arising afterwards) which may constitute a breach of any dividends Warranty if the Warranties were to be repeated on or at any time before Completion by reference to the facts and circumstances then existing;
(in cash or in specief) no dividend or other distribution shall be declared, paid or made by any member of a similar nature the Target Companies Group;
(g) no share capital shall be allotted or taxed issued or agreed to be allotted or issued by any member of the Target Companies Group;
(h) all transactions between each member of the Target Companies Group and each Vendor Group Company shall be on arm’s length commercial terms and in their respective ordinary and usual course of business;
(i) otherwise than in the same way as a dividend ordinary course of business, the amount of any Indebtedness owed by Pine Walk Capital Limited or any each member of the cells and/or Target Companies Group or existing as at the subsidiaries date of Pine Walk Capital Limitedthis Agreement shall not be increased or extended and no new Indebtedness shall be entered into or assumed by any such company; and
(dj) no action is taken by any member of the commencement Target Companies Group or any Vendor Group Company which is inconsistent with the provisions of any litigation or arbitration proceedings this Agreement or the compromiseconsummation of the transactions contemplated by this Agreement.
4.2 Pending Completion, cessation or settlement each of any litigation or arbitration proceedings or any action, demand or dispute or waiver of a right the Vendor and the Warrantor shall ensure that the Target Companies Group consults fully with the Purchaser in relation to any litigation or arbitration proceedings in connection with matters which may have a material effect upon the handling of (re)insurance claims by Pine Walk Capital Limited or Target Companies Group. Without the cells and/or the subsidiaries of Pine Walk Capital Limited;
2.2.4 Pine Walk Europe establishing a permanent UK branch and acquiring a permanent Regulatory Authorisation;
2.2.5 the implementation of any transaction or the taking of any action required, contemplated, permitted or provided for by any Transaction Document;
2.2.6 any matter required in order to comply with any law, court order or regulation (including: (i) the requirements of any Regulatory Authority or Regulatory Authorisation; and (ii) any action of any director of an MGA Group Company that such director believes is reasonably required in order to comply with his statutory or fiduciary directors’ duties) or published policy prior written consent of the MGA Purchaser, the Target Companies Group being undertaken by any MGA shall not, and each of the Vendor and the Warrantor shall ensure that the Target Companies Group Company;does not:
2.2.7 any matter reasonably undertaken by any MGA Group Company immediately following an emergency or disaster or other serious incident or circumstance with the intention of minimising any adverse effect on the MGA Group (and of which the Investors’ Representative will be promptly notified);
2.2.8 the completion or performance of any obligation undertaken pursuant to a) enter into any contract or arrangement entered into by commitment (or make a bid or offer which may lead to a contract or commitment) having a material value or involving material expenditure or which is of a long term or unusual nature or which could involve an obligation of a material nature or which may result in any MGA Group Company prior to material change in the date nature or scope of this Agreementthe operations of such member of the Target Companies Group;
2.2.9 (b) agree to any increase in emoluments variation or termination of any category of employees of any MGA Group Company where such increase is made in accordance with the normal practice existing contract to which that member of the relevant employing MGA Target Companies Group Companyis a party and which may have a material effect upon the nature or scope of the operations of such member of the Target Companies Group;
2.2.10 any payment being made by any MGA Group Company for or in respect of any Tax (c) (whether in the ordinary and usual course of business in a manner consistent with past practice;
2.2.11 any matter being undertaken by any MGA Group Company at the written requestor otherwise) acquire or dispose of, or with the prior written consent, of the Investors’ Representative (such consent not agree to be unduly withheld, conditioned acquire or delayed);
2.2.12 any investment in A Ordinary Shares of Topco on substantially the same terms as the Subscription Agreements up to an aggregate subscription amount of $[******] by any person reasonably satisfactory to the Investors’ Representative and the Management Seller Representative; and
2.2.13 any incurrence of any liability by an MGA Group Company in connection with the facilities referred to in the Debt Commitment Letter (including any liability to FIHL if FIHL makes any payments on behalf of any MGA Group Company in connection with such facilities).
2.3 If FIHL requests the approval of the Investors’ Representative pursuant to Clause 2.1 or otherwise under this Agreement, the Investors’ Representative shall respond to such request as soon as reasonably practicable and in any event within five Business Days after such request is made. Failure of the Investors’ Representative to respond within that period shall be deemed to be an approval to proceed with the relevant act, matter or course of conduct which is the subject of the request. In no circumstances is this Clause 2 intended to allow any Investor the ability to control the Group or the MGA Group.
2.4 At or prior to Completion, each of the Parties shall implement, or procure the implementation dispose of, in each case to the extent within their power, each of the Structure Steps in accordance with the terms and conditions of the Final Structure Steps Documents and each such Structure Step shall be implemented in the order set out in the Structure Steps Plan (the “Reorganisation”).
2.5 FIHL shall use its reasonable best efforts to procure that the Final Structure Step Documents are drafted (including, without limitation, by proposing such customary provisions that are consistent with generally accepted market practice) by no later than Completion, provided that no Final Structure Step Document may be entered into if it would or would reasonably be expected to, in comparison to the position agreed in the Structure Steps Plan, negatively impact in any material way, directly business or indirectly, any Investor or the MGA Group (an “Adverse Change”), without the prior written consent of the Investors’ Representative (such consent not to be unreasonably withheld, conditioned or delayed); provided that, (i) if no reply is given within two Business Days of the relevant Final Structure Step Document being provided to each Investor (or each Investor’s counsel), the Investors’ Representative shall be deemed to have approved such Final Structure Step Document; (ii) if a reply is given by the Investors’ Representative (or the Investors’ counsel) describing a change to the position agreed in the Structure Steps Plan which the Investors’ Representative believes in good faith could be an Adverse Change, then FIHL, the relevant Parties and the Investors shall cooperate in good faith using reasonable best efforts on a prompt basis to revise such Final Structure Step Documents such that it does not constitute an Adverse Change and allowing their implementation before the Long Stop Date; (iii) the impact of any change in tax law arising on or after the date of this Agreement shall be excluded in any such determination of any Adverse Change; and (iv) if an Adverse Change could disproportionately negatively impact any Investor in any material way, relative to the other Investors, such Investor shall also have the same rights as the Investors’ Representative set forth in this Clause 2.5 mutatis mutandis.asset; or
2.6 Each of the Parties shall, and shall procure that their respective Related Persons and their Related Persons’ respective representatives shall, in each case to the extent within their power:
2.6.1 exercise all rights and privileges and perform all duties and obligations, whether as a security holder or otherwise, including by attending or voting at meetings of any security holders, executing consents to short notice in respect of any such meetings, and receiving, approving or executing any written resolution circulated to any security holder, in each case necessary or desirable to approve the Reorganisation; and
2.6.2 not (d) enter into any agreement agreement, contract, arrangement or arrangement which may impede transaction (whether or frustrate not legally binding) other than in the Reorganisationordinary and usual course of business.
2.7 Subject to Clause 4.7, at or prior to Completion, FIHL shall, and shall procure that the relevant members of the Group to, enter into, adopt or otherwise implement the Binder Agreements.
Appears in 1 contract
Sources: Conditional Sale and Purchase Agreement (China Mobile Hong Kong LTD /Adr/)
PRE-COMPLETION UNDERTAKINGS. Conduct of business before Completion
2.1 Subject to Clause 2.26.1 The Vendors represents, FIHL shall use its reasonable best efforts to procure, warrants and undertakes to the extent such matter is within its power and control Purchaser that:
(whether by exercising its right a) as a holder of shares in any MGA Group Company or pursuant to any agreementat the Completion Date, arrangement or understanding to which it is a party) that, between no Material Adverse Change will have occurred since the date of this Agreement and Completion, no MGA Group Company will without the prior written approval of the Investors’ Representative (such approval not to be unreasonably withheld, conditioned or delayed) undertake any of the acts or matters listed in Schedule 3.
2.2 Clause 2.1 shall not operate so as to restrict or prevent:
2.2.1 entering into the Binder Agreements, including any matter permitted under the terms of the Binder Agreements;
2.2.2 subject always to Clause 2.5, the implementation of any transaction or the taking of any action permitted or provided for or contemplated by the Structure Steps Plan or any Final Structure Steps Document, including any negotiation of the purchase of the non-controlling interests in Pine Walk Capital Limited as contemplated at Structure Steps 4 and 20;
2.2.3 any matters that do not involve the negotiation, entering into, termination and/or other material variation or amendment of a Material Contract and that are in the ordinary course of business for Pine Walk Capital Limited and its cells and/or its subsidiaries and are conducted in a manner consistent with the running of the business of such entities in the prior twelve (12) months (up to the extent that parts date of the MGA Group’s business existed during such period, acknowledging that the MGA Group is to be established pursuant to the implementation of the Structure Steps Plan), including:
(a) the acquisition of shares or any other interest in any person by Pine Walk Capital Limited where the business of such person is underwriting (re)insurance as a managing general agent on behalf of the Balance Sheet Business, pursuant to delegated authority granted by one or more FIHL subsidiariesCompletion;
(b) the creation, allotment, issue or transfer by any shareholder (other than an MGA Group Company) Vendors shall use its reasonable endeavours to another shareholder of, or procure that the grant Company shall carry on its business in the normal and ordinary course and consistent with past practice after the date of any option over or other right this Agreement up to subscribe for or purchase, or redeem, buy back, sub-divide, consolidate, re-denominate, convert, reduce, cancel, restrict or alter the rights attaching to, any share or loan capital or securities or securities convertible into any date of Completion and with a view to maintaining the validity of each Licence; and the continued operation of the foregoing of Pine Walk Capital Limited, or its cells or subsidiaries pursuant to any employee share scheme in place in connection therewith or otherwiseCompany’ business under each Licence;
(c) the declarationVendors shall be responsible for all the liabilities, authorisationobligations, making or the paying Indebtedness, Encumbrances of any dividends kind (in cash whether liquidated or in specieunliquidated, actual or contingent, foreseeable or unforeseeable, or otherwise) or other distribution of a similar nature or taxed in the same way as a dividend by Pine Walk Capital Limited or any of the cells and/or Company before, up to and including the subsidiaries of Pine Walk Capital Limited; andCompletion Date;
(d) the commencement Vendors shall use its reasonable endeavours to provide all such information known, on reasonable enquiry, ought to be known to the Vendors and relating to the Vendors, the Company, Sale Shares as may reasonably be required by the Purchaser, its officers, employee, agents, representatives and advisers, for the purposes of complying with any requirements of law and enabling the Purchaser to obtain any approvals which they consider necessary from any governmental authorities in Hong Kong in connection with the sale and purchase of the Sale Shares;
(e) the Vendors shall from time to time and at any time, whether before or after Completion, forthwith disclose in writing to the Purchaser and/or its nominee(s) any event, fact or circumstance which may be or become known to them before or after the date hereof and which is inconsistent with any of the Warranties or which may entitle the Purchaser and/or its nominee(s) to make any claim under this Agreement;
(f) the Vendors shall notify the Purchaser of any litigation matters relating to or arbitration proceedings affecting the properties or assets of the Company or any part thereof of a material nature as soon as is reasonably practicable after the Vendors becomes aware thereof;
(g) the Vendors shall be liable for any claim or demand under this Agreement which would not have arisen but for an act omission, act or transaction by the Vendors or the Company occurring or committed before Completion;
(h) the Vendors shall not take any action which is inconsistent with the provisions of this Agreement or the consummation of the transactions contemplated by this Agreement;
(i) the Vendors shall procure the Company not to commence, compromise, cessation settle, release, discharge or settlement of compound any litigation civil, criminal, arbitration or arbitration other proceedings or any liability, claim, action, demand or dispute or waiver of a waive any right in relation to any litigation or arbitration proceedings in connection with the handling of (re)insurance claims by Pine Walk Capital Limited or the cells and/or the subsidiaries of Pine Walk Capital Limited;
2.2.4 Pine Walk Europe establishing a permanent UK branch and acquiring a permanent Regulatory Authorisation;
2.2.5 the implementation of any transaction or the taking of any action required, contemplated, permitted or provided for by any Transaction Document;
2.2.6 any matter required in order to comply with any law, court order or regulation (including: (i) the requirements of any Regulatory Authority or Regulatory Authorisation; and (ii) any action of any director of an MGA Group Company that such director believes is reasonably required in order to comply with his statutory or fiduciary directors’ duties) or published policy of the MGA Group being undertaken by any MGA Group Company;
2.2.7 any matter reasonably undertaken by any MGA Group Company immediately following an emergency or disaster or other serious incident or circumstance with the intention of minimising any adverse effect on the MGA Group (and of which the Investors’ Representative will be promptly notified);
2.2.8 the completion or performance of any obligation undertaken pursuant to any contract or arrangement entered into by any MGA Group Company prior to the date of this Agreement;
2.2.9 any increase in emoluments of any category of employees of any MGA Group Company where such increase is made in accordance with the normal practice of the relevant employing MGA Group Company;
2.2.10 any payment being made by any MGA Group Company for or in respect of any Tax in the ordinary and usual course of business in a manner consistent with past practice;
2.2.11 any matter being undertaken by any MGA Group Company at the written request, or with the prior written consent, of the Investors’ Representative (such consent not to be unduly withheld, conditioned or delayed);
2.2.12 any investment in A Ordinary Shares of Topco on substantially the same terms as the Subscription Agreements up to an aggregate subscription amount of $[******] by any person reasonably satisfactory to the Investors’ Representative and the Management Seller Representativeforegoing; and
2.2.13 any incurrence of any liability by an MGA Group Company in connection with (j) the facilities referred to in the Debt Commitment Letter (including any liability to FIHL if FIHL makes any payments on behalf of any MGA Group Company in connection with such facilities).
2.3 If FIHL requests the approval of the Investors’ Representative pursuant to Clause 2.1 or otherwise under this Agreement, the Investors’ Representative shall respond to such request as soon as reasonably practicable and in any event within five Business Days after such request is made. Failure of the Investors’ Representative to respond within that period shall be deemed to be an approval to proceed with the relevant act, matter or course of conduct which is the subject of the request. In no circumstances is this Clause 2 intended to allow any Investor the ability to control the Group or the MGA Group.
2.4 At or prior to Completion, each of the Parties shall implement, or procure the implementation of, in each case to the extent within their power, each of the Structure Steps in accordance with the terms and conditions of the Final Structure Steps Documents and each such Structure Step shall be implemented in the order set out in the Structure Steps Plan (the “Reorganisation”).
2.5 FIHL Vendors shall use its reasonable best efforts endeavours to procure that the Final Structure Step Documents are drafted (including, without limitation, by proposing such customary provisions that are consistent with generally accepted market practice) by no later than Completion, provided that no Final Structure Step Document may be entered into if it would or would reasonably be expected to, in comparison provide to the position agreed Purchaser all such information and assistance as the Purchaser may reasonably request in relation to the Structure Steps Plan, negatively impact in any material way, directly or indirectly, any Investor or the MGA Group (an “Adverse Change”), without the prior written consent satisfaction of the Investors’ Representative (such consent not to be unreasonably withheld, conditioned or delayed); provided that, (i) if no reply is given within two Business Days of the relevant Final Structure Step Document being provided to each Investor (or each Investor’s counsel), the Investors’ Representative shall be deemed to have approved such Final Structure Step Document; (ii) if a reply is given by the Investors’ Representative (or the Investors’ counsel) describing a change to the position agreed in the Structure Steps Plan which the Investors’ Representative believes in good faith could be an Adverse Change, then FIHL, the relevant Parties and the Investors shall cooperate in good faith using reasonable best efforts on a prompt basis to revise such Final Structure Step Documents such that it does not constitute an Adverse Change and allowing their implementation before the Long Stop Date; (iii) the impact of any change in tax law arising on or after the date of this Agreement shall be excluded in any such determination of any Adverse Change; and (iv) if an Adverse Change could disproportionately negatively impact any Investor in any material way, relative to the other Investors, such Investor shall also have the same rights as the Investors’ Representative set forth in this Clause 2.5 mutatis mutandisConditions.
2.6 Each of the Parties shall, and shall procure that their respective Related Persons and their Related Persons’ respective representatives shall, in each case to the extent within their power:
2.6.1 exercise all rights and privileges and perform all duties and obligations, whether as a security holder or otherwise, including by attending or voting at meetings of any security holders, executing consents to short notice in respect of any such meetings, and receiving, approving or executing any written resolution circulated to any security holder, in each case necessary or desirable to approve the Reorganisation; and
2.6.2 not enter into any agreement or arrangement which may impede or frustrate the Reorganisation.
2.7 Subject to Clause 4.7, at or prior to Completion, FIHL shall, and shall procure that the relevant members of the Group to, enter into, adopt or otherwise implement the Binder Agreements.
Appears in 1 contract
Sources: Agreement for Sale and Purchase of Shares (Powell Max LTD)
PRE-COMPLETION UNDERTAKINGS. Conduct 6.1 Subject to the terms and conditions of business before Completionthis Agreement, the Seller and the Purchaser shall use all reasonable endeavours to procure that Completion occurs and, without prejudice to the generality of the foregoing, shall use all reasonable endeavours to cooperate with each other on and after the date of this Agreement to consummate the transactions contemplated by this Agreement.
2.1 6.2 Subject to Clause 2.2, FIHL shall use its reasonable best efforts to procure, to the extent such matter is within its power and control (whether by exercising its right as a holder of shares in any MGA Group Company or pursuant to any agreement, arrangement or understanding to which it is a party) that6.4, between the date of this Agreement and CompletionCompletion (the “Pre-Completion Period”), no MGA Group Company the Seller shall exercise all rights available to it:
(A) to procure that the Business will without be carried on in the prior written approval ordinary course in the same manner as it was operated during the six (6) months preceding the date of this Agreement and shall use all reasonable endeavours to maintain its trade and trade connections; and
(B) in particular to procure that each applicable member of the Investors’ Representative GSK Group:
(such approval not i) uses all commercially reasonable endeavours:
(a) to maintain and keep any Regulatory Permits and ensure that all filings and notifications required to be unreasonably withheldmade in respect of the same are made in accordance with past practice during the six (6) months preceding the date of this Agreement; and
(b) to progress, conditioned in accordance with past practice during the six (6) months preceding the date of this Agreement, any applications, submissions, filings or delayedother correspondence initiated by such member of the GSK Group prior to the date of this Agreement relating to the grant of new NDAs, approvals, licences, permits, certificates, registrations, exemptions and/or authorisations in respect of the Business, unless (in either case) requested by the Purchaser or required by any applicable Governmental Entity to amend, cancel or surrender any such Regulatory Permits, applications, submissions or filings;
(ii) continues to Commercialise the Products in accordance with past practice during the six (6) months preceding the date of this Agreement and, in particular, shall not materially accelerate or increase the quantity of Products distributed to the relevant distributors, except where such acceleration or increase results from an actual increase in the orders of the relevant Products by the relevant distributor without an unusual or increased level of solicitation by a member of the Seller's Group intended to result in seasonably adjusted inventory levels of Products materially in excess of normal levels;
(iii) maintains the level of Business Inventory held for use in the Business in accordance with past practice during the six (6) months preceding the date of this Agreement;
(iv) complies with the Quality Management System to ensure that the Products sold by the Business comply with the applicable requirements of GMP;
(v) notifies the Purchaser in writing of any actual safety issue in respect of any Product (as soon as reasonably practicable after becoming aware of the same) which issue the relevant member of the GSK Group, acting reasonably and in good faith, considers material in the context of the Manufacture or Commercialisation of such Product;
(vi) continues to support trade marketing, advertising and promotion in relation to the Business in accordance with the relevant Brand Activation Grid;
(vii) notifies the Purchaser in writing as soon as reasonably practicable after becoming aware of any third party infringement of its Business Intellectual Property which has a material impact on the relevant Brand; and
(a) materially complies with the terms of the 1998 Licence, solely to the extent such terms relate to the Business and (b) if the licensor does not materially comply with the terms of the 1998 Licence (to the extent such terms relate to the Business), uses all commercially reasonable efforts to enforce the terms of the 1998 Licence in respect of such non-compliance.
6.3 Subject to Clauses 6.2 and 6.4, during the Pre-Completion Period, the Seller shall exercise all rights available to it to procure that no member of the GSK Group will undertake any of the acts or matters listed in Schedule 3.
2.2 Clause 2.1 shall not operate so as to restrict or prevent:
2.2.1 entering into the Binder Agreements, including any matter permitted under the terms of the Binder Agreements;
2.2.2 subject always to Clause 2.5, the implementation of any transaction or the taking of any action permitted or provided for or contemplated by the Structure Steps Plan or any Final Structure Steps Document, including any negotiation of the purchase of the non-controlling interests in Pine Walk Capital Limited as contemplated at Structure Steps 4 and 20;
2.2.3 any matters that do not involve the negotiation, entering into, termination and/or other material variation or amendment of a Material Contract and that are in the ordinary course of business for Pine Walk Capital Limited and its cells and/or its subsidiaries and are conducted in a manner consistent with the running of the business of such entities in the prior twelve (12) months (to the extent that parts of the MGA Group’s business existed during such period, acknowledging that the MGA Group is to be established pursuant to the implementation of the Structure Steps Plan), including:
(a) the acquisition of shares or any other interest in any person by Pine Walk Capital Limited where the business of such person is underwriting (re)insurance as a managing general agent on behalf of the Balance Sheet Business, pursuant to delegated authority granted by one or more FIHL subsidiaries;
(b) the creation, allotment, issue or transfer by any shareholder (other than an MGA Group Company) to another shareholder of, or the grant of any option over or other right to subscribe for or purchase, or redeem, buy back, sub-divide, consolidate, re-denominate, convert, reduce, cancel, restrict or alter the rights attaching to, any share or loan capital or securities or securities convertible into any of the foregoing of Pine Walk Capital Limited, or its cells or subsidiaries pursuant to any employee share scheme in place in connection therewith or otherwise;
(c) the declaration, authorisation, making or the paying of any dividends (in cash or in specie) or other distribution of a similar nature or taxed in the same way as a dividend by Pine Walk Capital Limited or any of the cells and/or the subsidiaries of Pine Walk Capital Limited; and
(d) the commencement of any litigation or arbitration proceedings or the compromise, cessation or settlement of any litigation or arbitration proceedings or any action, demand or dispute or waiver of a right 1 in relation to any litigation or arbitration proceedings in connection with the handling of (re)insurance claims by Pine Walk Capital Limited or the cells and/or the subsidiaries of Pine Walk Capital Limited;
2.2.4 Pine Walk Europe establishing a permanent UK branch and acquiring a permanent Regulatory Authorisation;
2.2.5 the implementation of any transaction or the taking of any action required, contemplated, permitted or provided for by any Transaction Document;
2.2.6 any matter required in order to comply with any law, court order or regulation (including: (i) the requirements of any Regulatory Authority or Regulatory Authorisation; and (ii) any action of any director of an MGA Group Company that such director believes is reasonably required in order to comply with his statutory or fiduciary directors’ duties) or published policy of the MGA Group being undertaken by any MGA Group Company;
2.2.7 any matter reasonably undertaken by any MGA Group Company immediately following an emergency or disaster or other serious incident or circumstance with the intention of minimising any adverse effect on the MGA Group (and of which the Investors’ Representative will be promptly notified);
2.2.8 the completion or performance of any obligation undertaken pursuant to any contract or arrangement entered into by any MGA Group Company prior to the date of this Agreement;
2.2.9 any increase in emoluments of any category of employees of any MGA Group Company where such increase is made in accordance with the normal practice of the relevant employing MGA Group Company;
2.2.10 any payment being made by any MGA Group Company for or in respect of any Tax in the ordinary and usual course of business in a manner consistent with past practice;
2.2.11 any matter being undertaken by any MGA Group Company at the written request, or with the prior written consent, of the Investors’ Representative (such consent not to be unduly withheld, conditioned or delayed);
2.2.12 any investment in A Ordinary Shares of Topco on substantially the same terms as the Subscription Agreements up to an aggregate subscription amount of $[******] by any person reasonably satisfactory to the Investors’ Representative and the Management Seller Representative; and
2.2.13 any incurrence of any liability by an MGA Group Company in connection with the facilities referred to in the Debt Commitment Letter (including any liability to FIHL if FIHL makes any payments on behalf of any MGA Group Company in connection with such facilities).
2.3 If FIHL requests the approval of the Investors’ Representative pursuant to Clause 2.1 or otherwise under this Agreement, the Investors’ Representative shall respond to such request as soon as reasonably practicable and in any event within five Business Days after such request is made. Failure of the Investors’ Representative to respond within that period shall be deemed to be an approval to proceed with the relevant act, matter or course of conduct which is the subject of the request. In no circumstances is this Clause 2 intended to allow any Investor the ability to control the Group or the MGA Group.
2.4 At or prior to Completion, each of the Parties shall implement, or procure the implementation of, in each case to the extent within their power, each of the Structure Steps in accordance with the terms and conditions of the Final Structure Steps Documents and each such Structure Step shall be implemented in the order set out in the Structure Steps Plan (the “Reorganisation”).
2.5 FIHL shall use its reasonable best efforts to procure that the Final Structure Step Documents are drafted (including, without limitation, by proposing such customary provisions that are consistent with generally accepted market practice) by no later than Completion, provided that no Final Structure Step Document may be entered into if it would or would reasonably be expected to, in comparison to the position agreed in the Structure Steps Plan, negatively impact in any material way, directly or indirectly, any Investor or the MGA Group (an “Adverse Change”), without the prior written consent of the Investors’ Representative Purchaser (such consent not to be unreasonably withheld, conditioned withheld or delayed); provided that, (i) if no reply is given within two Business Days of the relevant Final Structure Step Document being provided to each Investor (or each Investor’s counsel), the Investors’ Representative shall be deemed to have approved such Final Structure Step Document; (ii) if a reply is given by the Investors’ Representative (or the Investors’ counsel) describing a change to the position agreed in the Structure Steps Plan which the Investors’ Representative believes in good faith could be an Adverse Change, then FIHL, the relevant Parties and the Investors shall cooperate in good faith using reasonable best efforts on a prompt basis to revise such Final Structure Step Documents such that it does not constitute an Adverse Change and allowing their implementation before the Long Stop Date; (iii) the impact of any change in tax law arising on or after the date of this Agreement shall be excluded in any such determination of any Adverse Change; and (iv) if an Adverse Change could disproportionately negatively impact any Investor in any material way, relative to the other Investors, such Investor shall also have the same rights as the Investors’ Representative set forth in this Clause 2.5 mutatis mutandis.
2.6 Each of the Parties shall, and shall procure that their respective Related Persons and their Related Persons’ respective representatives shall, in each case to the extent within their power:
2.6.1 exercise all rights and privileges and perform all duties and obligations, whether as a security holder or otherwise, including by attending or voting at meetings of any security holders, executing consents to short notice in respect of any such meetings, and receiving, approving or executing any written resolution circulated to any security holder, in each case necessary or desirable to approve the Reorganisation; and
2.6.2 not enter into any agreement or arrangement which may impede or frustrate the Reorganisation.
2.7 Subject to Clause 4.7, at or prior to Completion, FIHL shall, and shall procure that the relevant members of the Group to, enter into, adopt or otherwise implement the Binder Agreements.
Appears in 1 contract
Sources: Business Sale and Purchase Agreement (Prestige Brands Holdings, Inc.)
PRE-COMPLETION UNDERTAKINGS. Conduct of business before Completion
2.1 Subject to Clause 2.2, FIHL shall use its reasonable best efforts to procure, to the extent such matter is within its power and control (whether by exercising its right as a holder of shares in any MGA Group Company or pursuant to any agreement, arrangement or understanding to which it is a party) that, between the date of this Agreement and 4.1 Pending Completion, no MGA Group Company will without the prior written approval each of the Investors’ Representative (such approval not to be unreasonably withheld, conditioned or delayed) undertake any of Vendor and the acts or matters listed in Schedule 3.
2.2 Clause 2.1 Warrantor shall not operate so as to restrict or prevent:
2.2.1 entering into the Binder Agreements, including any matter permitted under the terms of the Binder Agreements;
2.2.2 subject always to Clause 2.5, the implementation of any transaction or the taking of any action permitted or provided for or contemplated by the Structure Steps Plan or any Final Structure Steps Document, including any negotiation of the purchase of the non-controlling interests in Pine Walk Capital Limited as contemplated at Structure Steps 4 and 20;
2.2.3 any matters that do not involve the negotiation, entering into, termination and/or other material variation or amendment of a Material Contract and that are in the ordinary course of business for Pine Walk Capital Limited and its cells and/or its subsidiaries and are conducted in a manner consistent with the running of the business of such entities in the prior twelve (12) months (to the extent that parts of the MGA Group’s business existed during such period, acknowledging that the MGA Group is to be established pursuant to the implementation of the Structure Steps Plan), includingensure that:
(a) the acquisition of shares or any other interest in any person by Pine Walk Capital Limited where the business of such person is underwriting (re)insurance as a managing general agent on behalf each member of the Balance Sheet Business, pursuant Target Companies Group shall carry on its business in the ordinary and usual course and shall not make (or agree to delegated authority granted by one or more FIHL subsidiariesmake) any payment other than routine payments in the ordinary and usual course of trading;
(b) the creation, allotment, issue or transfer by any shareholder (other than an MGA Group Company) to another shareholder of, or the grant of any option over or other right to subscribe for or purchase, or redeem, buy back, sub-divide, consolidate, re-denominate, convert, reduce, cancel, restrict or alter the rights attaching to, any share or loan capital or securities or securities convertible into any each member of the foregoing of Pine Walk Capital Limited, or Target Companies Group shall take all reasonable steps to preserve and protect its cells or subsidiaries pursuant to any employee share scheme in place in connection therewith or otherwiseassets;
(c) the declarationPurchaser's representatives shall be allowed, authorisationupon reasonable notice and during normal business hours, making access to the books and records of each member of the Target Companies Group (including, without limitation, all statutory books, minute books, leases, contracts, supplier lists and customer lists) together with the right to take copies;
(d) no member of the Target Companies Group shall do, allow or procure any act or omission which would constitute or give rise to a breach of any Warranty if the Warranties were to be repeated on or at any time before Completion by reference to the facts and circumstances then existing;
(e) prompt disclosure is made to the Purchaser of all relevant information which comes to the notice of the Vendor or the paying Warrantor in relation to any fact or matter (whether existing on or before the date of this Agreement or arising afterwards) which may constitute a breach of any dividends Warranty if the Warranties were to be repeated on or at any time before Completion by reference to the facts and circumstances then existing;
(in cash or in specief) no dividend or other distribution shall be declared, paid or made by any member of a similar nature the Target Companies Group;
(g) no share capital shall be allotted or taxed issued or agreed to be allotted or issued by any member of the Target Companies Group;
(h) all transactions between each member of the Target Companies Group and each Vendor Group Company shall be on arm's length commercial terms and in their respective ordinary and usual course of business;
(i) otherwise than in the same way as a dividend ordinary course of business, the amount of any Indebtedness owed by Pine Walk Capital Limited or any each member of the cells and/or Target Companies Group or existing as at the subsidiaries date of Pine Walk Capital Limitedthis Agreement shall not be increased or extended and no new Indebtedness shall be entered into or assumed by any such company; and
(dj) no action is taken by any member of the commencement Target Companies Group or any Vendor Group Company which is inconsistent with the provisions of any litigation or arbitration proceedings this Agreement or the compromiseconsummation of the transactions contemplated by this Agreement.
4.2 Pending Completion, cessation or settlement each of any litigation or arbitration proceedings or any action, demand or dispute or waiver of a right the Vendor and the Warrantor shall ensure that the Target Companies Group consults fully with the Purchaser in relation to any litigation or arbitration proceedings in connection with matters which may have a material effect upon the handling of (re)insurance claims by Pine Walk Capital Limited or Target Companies Group. Without the cells and/or the subsidiaries of Pine Walk Capital Limited;
2.2.4 Pine Walk Europe establishing a permanent UK branch and acquiring a permanent Regulatory Authorisation;
2.2.5 the implementation of any transaction or the taking of any action required, contemplated, permitted or provided for by any Transaction Document;
2.2.6 any matter required in order to comply with any law, court order or regulation (including: (i) the requirements of any Regulatory Authority or Regulatory Authorisation; and (ii) any action of any director of an MGA Group Company that such director believes is reasonably required in order to comply with his statutory or fiduciary directors’ duties) or published policy prior written consent of the MGA Purchaser, the Target Companies Group being undertaken by any MGA shall not, and each of the Vendor and the Warrantor shall ensure that the Target Companies Group Company;does not:
2.2.7 any matter reasonably undertaken by any MGA Group Company immediately following an emergency or disaster or other serious incident or circumstance with the intention of minimising any adverse effect on the MGA Group (and of which the Investors’ Representative will be promptly notified);
2.2.8 the completion or performance of any obligation undertaken pursuant to a) enter into any contract or arrangement entered into by commitment (or make a bid or offer which may lead to a contract or commitment) having a material value or involving material expenditure or which is of a long term or unusual nature or which could involve an obligation of a material nature or which may result in any MGA Group Company prior to material change in the date nature or scope of this Agreementthe operations of such member of the Target Companies Group;
2.2.9 (b) agree to any increase in emoluments variation or termination of any category of employees of any MGA Group Company where such increase is made in accordance with the normal practice existing contract to which that member of the relevant employing MGA Target Companies Group Companyis a party and which may have a material effect upon the nature or scope of the operations of such member of the Target Companies Group;
2.2.10 any payment being made by any MGA Group Company for or in respect of any Tax (c) (whether in the ordinary and usual course of business in a manner consistent with past practice;
2.2.11 any matter being undertaken by any MGA Group Company at the written requestor otherwise) acquire or dispose of, or with the prior written consent, of the Investors’ Representative (such consent not agree to be unduly withheld, conditioned acquire or delayed);
2.2.12 any investment in A Ordinary Shares of Topco on substantially the same terms as the Subscription Agreements up to an aggregate subscription amount of $[******] by any person reasonably satisfactory to the Investors’ Representative and the Management Seller Representative; and
2.2.13 any incurrence of any liability by an MGA Group Company in connection with the facilities referred to in the Debt Commitment Letter (including any liability to FIHL if FIHL makes any payments on behalf of any MGA Group Company in connection with such facilities).
2.3 If FIHL requests the approval of the Investors’ Representative pursuant to Clause 2.1 or otherwise under this Agreement, the Investors’ Representative shall respond to such request as soon as reasonably practicable and in any event within five Business Days after such request is made. Failure of the Investors’ Representative to respond within that period shall be deemed to be an approval to proceed with the relevant act, matter or course of conduct which is the subject of the request. In no circumstances is this Clause 2 intended to allow any Investor the ability to control the Group or the MGA Group.
2.4 At or prior to Completion, each of the Parties shall implement, or procure the implementation dispose of, in each case to the extent within their power, each of the Structure Steps in accordance with the terms and conditions of the Final Structure Steps Documents and each such Structure Step shall be implemented in the order set out in the Structure Steps Plan (the “Reorganisation”).
2.5 FIHL shall use its reasonable best efforts to procure that the Final Structure Step Documents are drafted (including, without limitation, by proposing such customary provisions that are consistent with generally accepted market practice) by no later than Completion, provided that no Final Structure Step Document may be entered into if it would or would reasonably be expected to, in comparison to the position agreed in the Structure Steps Plan, negatively impact in any material way, directly business or indirectly, any Investor or the MGA Group (an “Adverse Change”), without the prior written consent of the Investors’ Representative (such consent not to be unreasonably withheld, conditioned or delayed); provided that, (i) if no reply is given within two Business Days of the relevant Final Structure Step Document being provided to each Investor (or each Investor’s counsel), the Investors’ Representative shall be deemed to have approved such Final Structure Step Document; (ii) if a reply is given by the Investors’ Representative (or the Investors’ counsel) describing a change to the position agreed in the Structure Steps Plan which the Investors’ Representative believes in good faith could be an Adverse Change, then FIHL, the relevant Parties and the Investors shall cooperate in good faith using reasonable best efforts on a prompt basis to revise such Final Structure Step Documents such that it does not constitute an Adverse Change and allowing their implementation before the Long Stop Date; (iii) the impact of any change in tax law arising on or after the date of this Agreement shall be excluded in any such determination of any Adverse Change; and (iv) if an Adverse Change could disproportionately negatively impact any Investor in any material way, relative to the other Investors, such Investor shall also have the same rights as the Investors’ Representative set forth in this Clause 2.5 mutatis mutandis.asset; or
2.6 Each of the Parties shall, and shall procure that their respective Related Persons and their Related Persons’ respective representatives shall, in each case to the extent within their power:
2.6.1 exercise all rights and privileges and perform all duties and obligations, whether as a security holder or otherwise, including by attending or voting at meetings of any security holders, executing consents to short notice in respect of any such meetings, and receiving, approving or executing any written resolution circulated to any security holder, in each case necessary or desirable to approve the Reorganisation; and
2.6.2 not (d) enter into any agreement agreement, contract, arrangement or arrangement which may impede transaction (whether or frustrate not legally binding) other than in the Reorganisationordinary and usual course of business.
2.7 Subject to Clause 4.7, at or prior to Completion, FIHL shall, and shall procure that the relevant members of the Group to, enter into, adopt or otherwise implement the Binder Agreements.
Appears in 1 contract
Sources: Conditional Sale and Purchase Agreement (China Mobile Hong Kong LTD /Adr/)
PRE-COMPLETION UNDERTAKINGS. Conduct (a) Pending Closing, the Exchanging Shareholders shall ensure that:
(i) Shuttle and its subsidiaries shall carry on their business in the ordinary and usual course and shall not make (or agree to make) any payment other than routine payments in the ordinary and usual course of business before Completiontrading;
2.1 Subject (ii) Shuttle and its subsidiaries shall take all reasonable steps to Clause 2.2, FIHL shall use its reasonable best efforts preserve and protect their assets;
(iii) prompt disclosure is made to procure, SCM of all relevant information which comes to the extent such notice of the Exchanging Shareholders in relation to any fact or matter (whether existing on or before the date of this Agreement or arising afterwards) which may constitute a breach of any of the representations or warranties which would have a Material Adverse Effect on Shuttle and its subsidiaries if the representations or warranties were to be repeated on or at any time before Closing by reference to the facts and circumstances then existing;
(iv) no dividend or other distribution (within the meaning of section 209 of the Taxes Act) shall be declared, paid or made by any Shuttle or any of its subsidiaries;
(v) no share or loan capital shall be allotted or issued or agreed to be allotted or issued by Shuttle or any of its subsidiaries;
(vi) no action is taken by Shuttle or any of its subsidiaries which is inconsistent with the provisions of this Agreement or the consummation of the transactions contemplated by this Agreement.
(b) Pending Closing, the Exchanging Shareholders shall ensure that Shuttle consults fully with SCM in relation to any matters which may have a material effect upon Shuttle or any of its subsidiaries and that, without the prior consent of SCM (which shall be deemed to have been given where the matter is within separately disclosed in the Shuttle Disclosure Letter and proceeds on the terms and conditions referred to in the Shuttle Disclosure Letter), neither Shuttle or any of its power and control subsidiaries shall:
(whether by exercising its right as i) enter into any contract or commitment (or make a holder bid or offer which may lead to a contract or commitment) having a value or involving expenditure in excess of shares $50,000 or which is of a long term or unusual nature or which could involve an obligation of a material nature or which may result in any MGA Group Company material change in the nature or pursuant scope of the operations of Shuttle or any of its subsidiaries;
(ii) agree to any agreement, arrangement or understanding variation of any existing contract to which it is a party) that, between party and which may have a material effect upon the date of this Agreement and Completion, no MGA Group Company will without the prior written approval nature or scope of the Investors’ Representative (such approval not to be unreasonably withheld, conditioned operations of Shuttle or delayed) undertake any of the acts or matters listed in Schedule 3.
2.2 Clause 2.1 shall not operate so as to restrict or prevent:
2.2.1 entering into the Binder Agreements, including any matter permitted under the terms of the Binder Agreements;
2.2.2 subject always to Clause 2.5, the implementation of any transaction or the taking of any action permitted or provided for or contemplated by the Structure Steps Plan or any Final Structure Steps Document, including any negotiation of the purchase of the non-controlling interests in Pine Walk Capital Limited as contemplated at Structure Steps 4 and 20;
2.2.3 any matters that do not involve the negotiation, entering into, termination and/or other material variation or amendment of a Material Contract and that are in the ordinary course of business for Pine Walk Capital Limited and its cells and/or its subsidiaries and are conducted in a manner consistent with the running of the business of such entities in the prior twelve (12) months (to the extent that parts of the MGA Group’s business existed during such period, acknowledging that the MGA Group is to be established pursuant to the implementation of the Structure Steps Plan), including:
(a) the acquisition of shares or any other interest in any person by Pine Walk Capital Limited where the business of such person is underwriting (re)insurance as a managing general agent on behalf of the Balance Sheet Business, pursuant to delegated authority granted by one or more FIHL subsidiaries;
(biii) the creation, allotment, issue or transfer by any shareholder (other than an MGA Group Company) to another shareholder of, or the grant of any option over or other right to subscribe for or purchase, or redeem, buy back, sub-divide, consolidate, re-denominate, convert, reduce, cancel, restrict or alter the rights attaching to, any share or loan capital or securities or securities convertible into any of the foregoing of Pine Walk Capital Limited, or its cells or subsidiaries pursuant to any employee share scheme in place in connection therewith or otherwise;
(c) the declaration, authorisation, making or the paying of any dividends (in cash or in specie) or other distribution of a similar nature or taxed in the same way as a dividend by Pine Walk Capital Limited or any of the cells and/or the subsidiaries of Pine Walk Capital Limited; and
(d) the commencement of any litigation or arbitration proceedings or the compromise, cessation or settlement of any litigation or arbitration proceedings or any action, demand or dispute or waiver of a right in relation to any litigation or arbitration proceedings in connection with the handling of (re)insurance claims by Pine Walk Capital Limited or the cells and/or the subsidiaries of Pine Walk Capital Limited;
2.2.4 Pine Walk Europe establishing a permanent UK branch and acquiring a permanent Regulatory Authorisation;
2.2.5 the implementation of any transaction or the taking of any action required, contemplated, permitted or provided for by any Transaction Document;
2.2.6 any matter required in order to comply with any law, court order or regulation (including: (i) the requirements of any Regulatory Authority or Regulatory Authorisation; and (ii) any action of any director of an MGA Group Company that such director believes is reasonably required in order to comply with his statutory or fiduciary directors’ duties) or published policy of the MGA Group being undertaken by any MGA Group Company;
2.2.7 any matter reasonably undertaken by any MGA Group Company immediately following an emergency or disaster or other serious incident or circumstance with the intention of minimising any adverse effect on the MGA Group (and of which the Investors’ Representative will be promptly notified);
2.2.8 the completion or performance of any obligation undertaken pursuant to any contract or arrangement entered into by any MGA Group Company prior to the date of this Agreement;
2.2.9 any increase in emoluments of any category of employees of any MGA Group Company where such increase is made in accordance with the normal practice of the relevant employing MGA Group Company;
2.2.10 any payment being made by any MGA Group Company for or in respect of any Tax whether in the ordinary and usual course of business in a manner consistent with past practice;
2.2.11 any matter being undertaken by any MGA Group Company at the written requestor otherwise) acquire or dispose of, or with the prior written consentagree to acquire or dispose of, of the Investors’ Representative (such consent not to be unduly withheld, conditioned any business or delayed);
2.2.12 any investment asset having a value in A Ordinary Shares of Topco on substantially the same terms as the Subscription Agreements up to an aggregate subscription amount excess of $[******] by any person reasonably satisfactory to the Investors’ Representative and the Management Seller Representative50,000; andor
2.2.13 any incurrence of any liability by an MGA Group Company in connection with the facilities referred to in the Debt Commitment Letter (including any liability to FIHL if FIHL makes any payments on behalf of any MGA Group Company in connection with such facilities).
2.3 If FIHL requests the approval of the Investors’ Representative pursuant to Clause 2.1 or otherwise under this Agreement, the Investors’ Representative shall respond to such request as soon as reasonably practicable and in any event within five Business Days after such request is made. Failure of the Investors’ Representative to respond within that period shall be deemed to be an approval to proceed with the relevant act, matter or course of conduct which is the subject of the request. In no circumstances is this Clause 2 intended to allow any Investor the ability to control the Group or the MGA Group.
2.4 At or prior to Completion, each of the Parties shall implement, or procure the implementation of, in each case to the extent within their power, each of the Structure Steps in accordance with the terms and conditions of the Final Structure Steps Documents and each such Structure Step shall be implemented in the order set out in the Structure Steps Plan (the “Reorganisation”).
2.5 FIHL shall use its reasonable best efforts to procure that the Final Structure Step Documents are drafted (including, without limitation, by proposing such customary provisions that are consistent with generally accepted market practice) by no later than Completion, provided that no Final Structure Step Document may be entered into if it would or would reasonably be expected to, in comparison to the position agreed in the Structure Steps Plan, negatively impact in any material way, directly or indirectly, any Investor or the MGA Group (an “Adverse Change”), without the prior written consent of the Investors’ Representative (such consent not to be unreasonably withheld, conditioned or delayed); provided that, (i) if no reply is given within two Business Days of the relevant Final Structure Step Document being provided to each Investor (or each Investor’s counsel), the Investors’ Representative shall be deemed to have approved such Final Structure Step Document; (ii) if a reply is given by the Investors’ Representative (or the Investors’ counsel) describing a change to the position agreed in the Structure Steps Plan which the Investors’ Representative believes in good faith could be an Adverse Change, then FIHL, the relevant Parties and the Investors shall cooperate in good faith using reasonable best efforts on a prompt basis to revise such Final Structure Step Documents such that it does not constitute an Adverse Change and allowing their implementation before the Long Stop Date; (iii) the impact of any change in tax law arising on or after the date of this Agreement shall be excluded in any such determination of any Adverse Change; and (iv) if an Adverse Change could disproportionately negatively impact any Investor in any material way, relative to the other Investors, such Investor shall also have the same rights as the Investors’ Representative set forth in this Clause 2.5 mutatis mutandis.
2.6 Each of the Parties shall, and shall procure that their respective Related Persons and their Related Persons’ respective representatives shall, in each case to the extent within their power:
2.6.1 exercise all rights and privileges and perform all duties and obligations, whether as a security holder or otherwise, including by attending or voting at meetings of any security holders, executing consents to short notice in respect of any such meetings, and receiving, approving or executing any written resolution circulated to any security holder, in each case necessary or desirable to approve the Reorganisation; and
2.6.2 not enter into any agreement agreement, contract, arrangement or arrangement which may impede transaction (whether or frustrate not legally binding) other than in the Reorganisationordinary and usual course of business.
2.7 Subject to Clause 4.7, at or prior to Completion, FIHL shall, and shall procure that the relevant members of the Group to, enter into, adopt or otherwise implement the Binder Agreements.
Appears in 1 contract