Conditions to Completion. Completion is subject to and conditional on fulfilment of the following conditions: 4.1.1 either: (i) the Purchaser receiving in terms satisfactory to it confirmation from the European Commission that the transactions or any part of the transactions contemplated in this Agreement (such transactions being the “Concentration”) do not constitute a concentration having a Community dimension within the meaning of Council Regulation (EC) No. 139/2004 (the “Regulation”); or (ii) the Purchaser receiving in terms satisfactory to it confirmation that (being a concentration having a Community dimension within the meaning of the Regulation) the European Commission has decided to declare the Concentration compatible with the Common Market pursuant to Article 6(1)(b) of the Regulation, either unconditionally or subject to such conditions, obligations or commitments as shall be satisfactory to the Purchaser or a deemed declaration in respect of the Concentration occurs under Article 10(6) of the Regulation; or (iii) where the Concentration or any part of it has been referred to a competent authority of any EU Member State under Article 4(4) or Article 9 of the Regulation, the Purchaser receiving from the competent authority of that Member State, confirmation in terms reasonably satisfactory to it that the Concentration has been approved in accordance with the relevant legislation of that EU Member State, and where the European Commission has only referred part of the Concentration, the Purchaser receiving in terms satisfactory to it confirmation that the European Commission has decided not to oppose it and has declared it compatible with the Common Market pursuant to Article 6(1)(b) of the Regulation either unconditionally or subject to such conditions, obligations or commitments as shall be satisfactory to the Purchaser, or a deemed declaration in respect of the Concentration occurs under Article 10(6) of the Regulation; or (iv) following a decision under Article 6(1)(c) of the Regulation to initiate proceedings, the Purchaser receiving in terms satisfactory to it a decision from the European Commission pursuant to Article 6(1)(b) of the Regulation declaring the Concentration compatible with the Common Market, either unconditionally or subject to such conditions, obligations or commitments as shall be satisfactory to the Purchaser; and no indication having been made that a European Union or EFTA state may take appropriate measures to protect legitimate interests pursuant to Article 21(4) of the Regulation in relation to the Concentration or any aspect of the Concentration; 4.1.2 (i) the Purchaser having received an approval notice from the FSA in accordance with the FSMA confirming that there is no objection to the Purchaser becoming a controller of NB and Northern Bank Executor and Trustee Company Limited and (2) the Company and NB (and, where appropriate, their respective holding companies, including from Completion the Purchaser) having received from the FSA an approval notice with respect to them becoming controllers of NBIS for the purposes of the FSMA pursuant to this Agreement; or
Appears in 1 contract
Conditions to Completion. Completion 3.1 The obligations of the Vendor and the Purchaser to complete the sale and transfer and purchase and acquisition of the Shares and the Business Assets shall be conditional upon the following conditions having been fulfilled:
(a) completion by the Vendor of the Hive-Down and Transfer in accordance with the provisions of Part C of Schedule 13 (Excluded Assets/Excluded Contracts/ Excluded Businesses), and for the purposes of this Condition (a) completion of the Hive-Down and Transfer shall mean compliance and performance by the Vendor in full with the provisions, terms and conditions of Schedule 13 (Excluded Assets/Excluded Contracts/Excluded Businesses) and, in addition, in respect of those Excluded Assets, Excluded Contracts, Excluded Liabilities, Excluded Claims and/or Excluded Businesses marked with an asterix in Part A or Part B of Schedule 13 (Excluded Assets/Excluded Contracts/Excluded Businesses) that novation of such assets, contracts, liabilities, claims and businesses to a relevant Hive Down Company has been implemented and completed in full in accordance with the provisions of Part C of Schedule 13 (Excluded Assets/Excluded Contracts/Excluded Liabilities);
(b) the European Commission having issued a decision that the proposed acquisition and any matters arising therefrom (the MERGER) fall within either Article 6.1(a) or Article 6.1(b) of Council Regulation (EEC) No.4064/89, as amended, (the MERGER REGULATION) or following the initiation of proceedings in relation to the Merger under Article 6(1)(c) of the Merger Regulation, the European Commission having issued a decision in relation to the Merger pursuant to Article 8(2) of the Merger Regulation or the Merger being deemed compatible with the common market in accordance with Article 10(6) of the Merger Regulation, provided that in the event of a decision (or decisions) being taken by the European Commission pursuant to Article 9(3) of the Merger Regulation (or having been deemed to have been taken pursuant to Article 9(5) of the Merger Regulation) or Article 6(1) of Protocol 24 to the EEA Agreement to refer the whole or part of the Merger to the competent authority or authorities of one or more European Union or relevant EFTA states, all such competent authorities having approved the Merger (or those parts of the Merger referred to them) or, having indicated that it is subject not their intention to investigate the Merger (or the relevant parts thereof);
(c) all waiting periods (including any extensions thereof) under the ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ Antitrust Improvements Act of 1976 of the United States, as amended and conditional on the rules and regulations thereunder, (the HSR ACT) required in connection with the Proposed Transaction having expired or been terminated without either the Federal Trade Commission or the Department of Justice having imposed any conditions;
(d) in the event that a filing or filings are required in Brazil, the relevant notification(s) having been filed with the relevant competition authority in Brazil;
(e) in the event that the Purchaser concludes that such filings are reasonable and notifies the Vendor of such within ten (10) days of the date of this Agreement, any relevant competition filings in Australia having been made and all applicable waiting and other time periods (including extensions thereof) having elapsed under applicable legislation or regulation and any relevant consents, approvals or clearances having been obtained, unless the Vendor elects to treat the relevant asset to which the filing relates as an Excluded Asset;
(f) all other competition filings that are necessary or, in the Vendor's and the Purchaser's joint judgement, reasonable having been made, and all applicable waiting and other time periods (including any extensions thereof) having elapsed under the relevant applicable legislation or regulation and the necessary consents, approvals or clearances thereunder having been obtained;
(g) the fulfilment of any obligation to provide information to, or consult with, any appropriate employee representative bodies in Norway and/or The Netherlands;
(h) satisfaction of each legal or regulatory requirement, including any relevant permit, consent, approval or waiver from the following conditions:
4.1.1 either:National Association of Securities Dealers Inc. or the Swedish Financial Supervisory Authority, non-satisfaction of which would (i) have the effect of making the Proposed Transaction illegal or otherwise prohibiting its consummation; or (ii) invalidate, cancel or to a material extent negatively affect any previously granted permit, licence, consent or approval by any regulatory body with jurisdiction that is necessary to carry on the SF Business in the relevant jurisdiction in the manner it has been carried out prior to the date of this Agreement; or (iii) restrict, delay or otherwise materially adversely affect the continuation of all and any part of the SF Business (as conducted prior to the date of this Agreement);
(i) no Material Adverse Change having occurred which has not been remedied in full in accordance with clause 15.4;
(j) the receipt by the Purchaser receiving immediately before Completion of written confirmation from the Vendor that it has complied with its obligations under clause 4 and Schedule 14 (Conduct of the SF Business) or has remedied in terms satisfactory full any breach of such obligations in accordance with clause 15.4; and
(k) all other regulatory or administrative licences, authorisations, consents and other approvals for the transfer of the Shares and/or the Business Assets and/or the continuation or conduct of any part of the SF Business after Completion in the ordinary course as conducted prior to the date of this Agreement that are necessary or, in the Vendor's and the Purchaser's joint judgement, reasonable having been obtained. CONFORMED COPY
3.2 The Vendor and the Purchaser hereby undertake, each to the other, to use their respective reasonable endeavours to procure that the Conditions are fulfilled as soon as reasonably practicable after the date hereof and in any event by the Longstop Date. The Vendor's obligation to use reasonable endeavours in accordance with this clause 3.2 shall include, without limitation, the provision to the Purchaser of such information regarding the ABB Group and the SF Group as will enable the Purchaser to reach an informed determination as to whether to make filings in any relevant jurisdiction and to make any such filings in accordance with clauses 3.1, 3.3 and 3.5 and the applicable legislation and regulation of the relevant jurisdiction. For the avoidance of doubt, this clause 3.2 shall be without prejudice to the Vendor's obligations under clause 4.1 and Schedule 14 (Conduct of the SF Business).
3.3 Without prejudice to clause 3.2 above, the Vendor shall (in relation to (a), (b) and (e) below) and the Purchaser shall (in relation to (a) to (e) below), as promptly as practicable take all reasonable steps within their reasonable control (including making filings and notifications) to obtain all permits, consents, approvals, waivers or actions of any governmental or regulatory body or any other person which are required in order to complete the Proposed Transaction and/or in order to conduct the SF Business after Completion in the manner conducted prior to the date of this Agreement, including without limitation:
(a) responding to requests for information from any such governmental or regulatory body or other person in an appropriate manner (including, for the avoidance of doubt and without limitation, the European Commission and each governmental or regulatory body or any other person referred to in clauses 3.1(c), (d), (e), (f), (g), (h) and (k), as appropriate);
(b) reasonably co-operating with and assisting the other party and any SF Group Company to obtain any permits, consents, approvals, waivers or actions of any governmental or regulatory body or other person which are required for Completion and/or in order to conduct the SF Business after Completion in the manner conducted prior to the date of this Agreement;
(c) notifying the Vendor, and providing copies (from which confidential information which the Purchaser or any other member of the Purchaser's Group reasonably considers to be commercially sensitive to it confirmation or any other member of the Purchaser's Group and any third party information in relation to which the Purchaser or any other member of the Purchaser's Group is under a duty of confidentiality has been removed) of any written communications from any such governmental or regulatory body or other person in relation to obtaining any such permit, consent, approval, waiver or action to the extent that any such written communications are relevant to the Vendor or any SF Group Company which, for the avoidance of doubt, shall include formal decisions of any such body or person;
(d) where reasonably requested by the Vendor: (i) providing the Vendor (or its nominated advisers) with draft copies (from which confidential information which the Purchaser or any other member of the Purchaser's Group reasonably considers to be commercially sensitive to it or any other member of the CONFORMED COPY Purchaser's Group and any third party information in relation to which the Purchaser or any other member of the Purchaser's Group is under a duty of confidentiality has been removed) of all written submissions and communications to governmental or regulatory bodies or other persons, where reasonably practicable, at such time as will allow the Vendor a reasonable opportunity to provide comments on such submissions and communications before they are submitted or sent, and (ii) amending all such submissions or communications with regard to erroneous statements of fact relating to the Vendor and its Affiliates in accordance with the reasonable requirements of the Vendor, unless to do so would cause an unreasonable delay to the process, and (iii) providing the Vendor (or its nominated advisers) with copies of all such written submissions and communications in the form submitted or sent (subject to the prior removal of commercially sensitive or confidential information as above); and
(e) each party shall keep the other reasonably informed as to the scope and content of, and shall take into account any reasonable representations made by the other party in respect of, information to be communicated in meetings with or oral representations to any governmental or regulatory bodies or other persons for the purposes of this clause and where one party is to meet with such governmental or regulatory bodies or other persons, it shall be in that party's sole discretion as to whether it is practical and appropriate for the other party also to attend.
3.4 Without prejudice to clause 3.2 above, each of the Vendor and the Purchaser shall, so far as is reasonably necessary and within its respective control and as promptly as practicable, provide each other with such reasonable assistance as the Purchaser or the Vendor (as the case may be) may request for the purpose of fulfilling its respective obligations under clause 3.3 above, including, without limitation, preparing and filing any filings required to be filed by the Purchaser, Vendor or any SF Group Company, taking, or causing to be taken, and doing, or causing to be done, all things necessary, proper or advisable to consummate and make effective the Proposed Transaction under the Securities Exchange Act of 1934, as amended, the Securities Act of 1933, as amended, or any other laws relating to the Proposed Transaction (including, without limitation the laws relating to the regulation of broker-dealers and banks, the rules and requirements of any self-regulatory organisation, the New York Stock Exchange, the National Association of Securities Dealers, Inc. or the Municipal Securities Rulemaking Board). Subject to the provisions of clause 3.3, the Vendor and the Purchaser shall promptly supply each other with any information that may be required in order to effectuate any filings pursuant to clause 3.3 above and this clause 3.4.
3.5 Without prejudice to the generality of its obligations under clauses 3.2 to 3.4, the Purchaser shall (in relation to (a) to (d) below) and the Vendor shall (in relation to (d) below):
(a) make verbal or written contact with the European Commission as soon as advisable following signing of this Agreement in the reasonable judgement of the Purchaser's nominated advisers, having consulted with and taking account CONFORMED COPY of the reasonable opinion of the Vendor's nominated advisers in the matter, and (subject to compliance with the applicable regulations and market practice) shall inform the European Commission of the signing of this Agreement in such manner as the Purchaser's nominated advisers consider appropriate;
(b) consult with the Vendor with a view to finalising the draft Form CO as soon as practicably possible following the date of this Agreement and submit such draft Form CO to the European Commission as promptly as reasonable following finalisation;
(c) file the final Form CO as soon as advisable following signing of this Agreement in the reasonable judgment of the Purchaser's nominated advisers, after having consulted with the Vendor's nominated advisers and taking account of their reasonable opinion in the matter, following indication from the European Commission that the transactions draft Form CO is in a form acceptable to it and in a time frame which is calculated to result in the approval from the European Commission to be obtained as soon as is reasonably practicable; and
(d) endeavour to be ready to file as soon as is reasonably practicable after the date of this Agreement, with the Federal Trade Commission or the Anti-Trust Division of The United States Department of Justice the notification and report form required for the Proposed Transaction pursuant to the HSR Act and shall, once ready to file, coordinate with each other so as to effect such filings on the same day, being the date on which the Purchaser (or its nominated advisors) shall in its (or their) reasonable judgement, having consulted with and taking account of the reasonable opinion of the Vendor's nominated advisers in the matter, consider to be the earliest date on which it is advisable to file.
3.6 Notwithstanding its undertaking in clause 3.2 to make reasonable efforts to procure that the Conditions are fulfilled, neither the Purchaser nor any other member of its Group shall be under any obligation to make any Proposals which would entail it divesting, or holding separate, or placing any limitations or restrictions whatsoever on its freedom to act with respect to or retaining:
(a) any property, assets, or business in which it or any member of the Purchaser's Group has any interest whatsoever, whether directly or indirectly; or
(b) all or any of the Shares or Business Assets or all or any part of any property, assets or business of the transactions contemplated SF Business or in this Agreement which any SF Group Company has any interest, whether directly or indirectly, if any such Proposals would, together, if accepted, have a material adverse effect (such transactions being as defined in clause 3.7) on the “Concentration”SF Business.
3.7 For the purposes of clauses 3.6 and 3.8 only, the phrase MATERIAL ADVERSE EFFECT on the SF Business shall mean any effect that would:
(a) do not constitute a concentration having a Community dimension within reduce the meaning amount of Council Regulation (EC) No. 139/2004 (Finance Receivables attributable to the “Regulation”)SF Business by more than US$100 million; or
(iib) reduce by more than 10 per cent. the Purchaser receiving number of Employees carrying out any particular specialist role within any Operating Platform (in terms satisfactory to it confirmation that (being a concentration having a Community dimension within particular staff specialising in any of portfolio management, syndication of debt, collections, IT or operations) or entail the meaning transfer of the Regulation) the European Commission has decided to declare the Concentration compatible with the Common Market pursuant to Article 6(1)(b) of the Regulationfollowing key personnel: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, either unconditionally or subject to such conditions▇▇▇▇▇▇ Lidefelt, obligations or commitments as shall be satisfactory to the Purchaser or a deemed declaration in respect of the Concentration occurs under Article 10(6) of the Regulation▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇ and Fabio Cosimetti; or
(iiic) where reduce by more than 10 per cent. the Concentration or number of Employees specialising in the origination of new business for any part of it has been referred to a competent authority of any EU Member State under Article 4(4) or Article 9 of the Regulation, the Purchaser receiving from the competent authority of that Member State, confirmation in terms reasonably satisfactory to it that the Concentration has been approved in accordance with the relevant legislation of that EU Member State, and where the European Commission has only referred part of the Concentration, the Purchaser receiving in terms satisfactory to it confirmation that the European Commission has decided not to oppose it and has declared it compatible with the Common Market pursuant to Article 6(1)(b) of the Regulation either unconditionally or subject to such conditions, obligations or commitments as shall be satisfactory to the Purchaser, or a deemed declaration in respect of the Concentration occurs under Article 10(6) of the Regulationindividual Operating Platform; or
(ivd) following a decision under Article 6(1)(c) entail any transfer, amendment or limitation of vendor/dealer contracts together representing more than 10 per cent. of new business originated during the course of the Regulation last calendar year for any Operating Platform; or
(e) entail any Finance Receivables, assets, contracts or personnel belonging to initiate proceedings, the Purchaser receiving in terms satisfactory to it a decision from the European Commission pursuant to Article 6(1)(b) any Operating Platform where more than 10 per cent. of the Regulation declaring the Concentration compatible with the Common Market, either unconditionally or subject to such conditions, obligations or commitments as shall be satisfactory to the Purchaser; and no indication having been made that a European Union or EFTA state may take appropriate measures to protect legitimate interests pursuant to Article 21(4) of the Regulation in relation to the Concentration or any aspect of the Concentration;
4.1.2 (i) the Purchaser having received an approval notice from the FSA in accordance with the FSMA confirming that there is no objection to the Purchaser becoming a controller of NB and Northern Bank Executor and Trustee Company Limited and (2) the Company and NB (and, where appropriate, their respective holding companies, including from Completion the Purchaser) having received from the FSA an approval notice with respect to them becoming controllers of NBIS for the purposes of the FSMA pursuant to this Agreement; orOperating Platform's business
Appears in 1 contract
Conditions to Completion. 5.1 Completion is subject of this Agreement shall be conditional on:
(a) the FCA having given notice in writing in accordance with section 189(4) or 189(7) of FSMA (read with the FSMA (Controllers) (Exemptions) Order 2009) to the effect that it has approved the Purchaser acquiring and conditional on fulfilment any other person who would be by virtue of the following conditions:Transaction acquire control of a FCA Regulated Entity within the meaning of section 181 of FSMA as controllers of a FCA Regulated Entity, or, in the absence of such notice from the FCA, the FCA being treated in accordance with section 189(6) of FSMA (read with the FSMA (Controllers) (Exemptions) Order 2009) as having approved the Purchaser and any other persons acquiring control of a FCA Regulated Entity as such controllers (the “FCA Condition”);
4.1.1 either(b) the SRA having given notice in writing:
(i) in accordance with Rule 9.1 of the SRA Authorisation Rules 2019 to the effect that it has approved the Purchaser receiving in terms satisfactory to it confirmation from the European Commission that the transactions or and any part other person who would be by virtue of the transactions contemplated in this Agreement (such transactions being Transaction acquire control of the “Concentration”) do not constitute a concentration having a Community dimension SRA Regulated Entity within the meaning of Council Regulation (EC) No. 139/2004 (section Rule 9.1 of the “Regulation”)SRA Authorisation Rules 2019 as owners of the SRA Regulated Entity; orand
(ii) approving such persons who would by virtue of the Transaction become beneficial owners of the SRA Regulated Entity under the Money Laundering Terrorist Financing and Transfer of Funds (Information on the Payer) Regulations 2017, (the “SRA Condition”); and
(c) receipt from the JCRA of its approval in writing to Completion for the purposes of Article 22 of the Competition (Jersey) Law 2005 (the “JCRA Condition”).
5.2 The Purchaser Conditions cannot be waived in whole or in part by any party.
5.3 The Purchaser shall not withdraw the FCA Application or the SRA Application and shall not:
(a) withdraw any other documentation submitted in connection with the Purchaser receiving in terms satisfactory Conditions; and
(b) knowingly take or fail to it confirmation take any action that (being a concentration having a Community dimension within the meaning could reasonably be expected to prevent satisfaction of the RegulationPurchaser Conditions.
5.4 The Purchaser may at its sole discretion unilaterally waive in whole or in part the JCRA Condition.
5.5 Each Vendor shall not (and shall procure that the Company shall not) withdraw the JCRA Application and no Vendor shall (and each Vendors shall procure that the Company shall not):
(a) withdraw any other documentation submitted in connection with the JCRA Condition; and
(b) knowingly take or fail to take any action that could reasonably be expected to prevent satisfaction of the JCRA Condition, in each case without the prior written consent or direction of the Purchaser.
5.6 Each of:
(a) the European Commission has decided to declare the Concentration compatible with the Common Market pursuant to Article 6(1)(b) of the Regulation, either unconditionally or subject to such conditions, obligations or commitments as shall be satisfactory to the Purchaser or a deemed declaration (in respect of the Concentration occurs under Article 10(6Purchaser Conditions); and
(b) the Purchaser and each of the RegulationVendors (in respect of the JCRA Condition), shall use all reasonable endeavours to ensure that the Conditions are fulfilled promptly after the date of this Agreement and in any event prior to the Long Stop Date, including taking all steps and actions reasonably necessary to satisfy the Conditions (including making all notifications and filings and not to withdraw the same). Without prejudice to the generality of this Clause:
(c) the Purchaser shall in any event:
(i) have:
(A) in respect of the Purchaser Conditions, primary responsibility for (and shall bear all costs and expenses in connection with); orand
(B) in respect of the JCRA Condition, joint responsibility with the Vendors for (and shall bear its own costs and expenses in connection with) obtaining all consents, approvals or actions of any Governmental Entity which are required to satisfy the Conditions;
(ii) take all steps necessary for that purpose (including making appropriate and full submissions, notifications and filings with all applicable Governmental Entities (including the Applications):
(A) in respect of the FCA Condition, in consultation with the Searchlight and the Management Vendors’ Representative, within ten (10) Business Days after the date of this Agreement;
(B) in respect of the SRA Condition, in consultation with the Searchlight and the Management Vendors’ Representative, within twenty (20) Business Days after the date of this Agreement; and
(C) including in respect of the JCRA Condition, jointly with the Vendors:
(1) seeking guidance from the JCRA in respect of the JCRA's jurisdiction to review the Transaction, as promptly as possible after the JCRA Date and in any event within five (5) Business Days after the JCRA Date; and
(2) subject to Clause 5.4, submitting a draft application to the JCRA within fifteen (15) Business Days after the JCRA Date or such later date as may be agreed between the Purchaser and the Vendors;
(iii) where co-operate with and to the Concentration extent practicable provide promptly all information which is requested or reasonably required by any part of it has been referred Governmental Entity in relation to a competent authority of any EU Member State under Article 4(4) or Article 9 the fulfilment of the Regulation, the Purchaser receiving from the competent authority of that Member State, confirmation Conditions and in terms reasonably satisfactory to it that the Concentration has been approved any event in accordance with any applicable time limits, whether under this Agreement or otherwise;
(iv) make and proactively pursue and progress all such notifications and filings with the relevant legislation of that EU Member StateGovernmental Entities with all reasonable due diligence and in accordance with any and all applicable time limits, and where the European Commission has only referred part of the Concentrationwhether under this Agreement or otherwise;
(v) keep Searchlight, the Purchaser receiving in terms satisfactory to it confirmation that Vendors’ Solicitors and the European Commission has decided not to oppose it and has declared it compatible with Management Vendors’ Representative reasonably informed of progress towards satisfying the Common Market pursuant to Article 6(1)(bConditions; and
(vi) of the Regulation either unconditionally or subject to such conditions, obligations or commitments as shall be satisfactory to the Purchaserextent reasonably practicable, or provide the Vendors’ Solicitors with a deemed declaration draft of all material submissions, notifications, filings and other communications to be submitted to any Governmental Entity in respect of the Concentration occurs under Article 10(6Purchaser Conditions, including material supporting documentation or information reasonably requested by Searchlight, the Vendors’ Solicitors or the Management Vendors’ Representative prior to submission to allow for Searchlight, the Vendors’ Solicitors and the Management Vendors’ Representative to provide comments and for the Purchaser to consider (to the extent reasonable) any reasonable comments of Searchlight, the Vendors’ Solicitors and the Management Vendors’ Representative on such drafts prior to their submission (to the extent received in a timely manner) provided that such submissions may be redacted as necessary to address legal privilege or confidentiality concerns or to comply with Law and that portions of such submissions that are competitively sensitive may be designated as “outside counsel only”; and
(d) each Vendor (to the extent within their power and control to do so) shall in any event, subject to Clauses 5.4 and 5.6(c)(ii)(C):
(i) have joint responsibility with the Purchaser for (and the Company shall bear all costs and expenses (other than those of the Regulation; orPurchaser) in connection with) obtaining all consents, approvals or actions of any Governmental Entity which are required to satisfy the JCRA Condition;
(ii) take (and procure that the Company takes) all steps necessary for that purpose (including making appropriate and full submissions, notifications and filings with all applicable Governmental Entities (including the JCRA Application), jointly with the Purchaser;
(iii) co-operate with and to the extent practicable provide promptly all information which is requested or reasonably required by any Governmental Entity in relation to the fulfilment of the JCRA Condition and in any event in accordance with any applicable time limits, whether under this Agreement or otherwise;
(iv) following a decision make and proactively pursue and progress the JCRA Application with all reasonable due diligence and in accordance with any and all applicable time limits, whether under Article 6(1)(cthis Agreement or otherwise; and
(v) keep the Purchaser and the Purchaser’s Solicitors reasonably informed of progress towards satisfying the Regulation JCRA Condition.
5.7 Subject to initiate proceedingsLaw, each Vendor (to the extent within his/her/its power and control to do so) shall procure that the Group provides any Governmental Entity, the Purchaser receiving and (in terms satisfactory respect of the JCRA Condition only) the Management Vendors:
(a) with any information and documents (to the extent available) reasonably required by the Purchaser and (in respect of the JCRA Condition only) the Management Vendors;
(b) reasonable cooperation to assist the Purchaser and (in respect of the JCRA Condition only) the Management Vendors; and
(c) provide such other assistance to the Purchaser and (in respect of the JCRA Condition only) the Management Vendors as may reasonably be required by the Purchaser and/or the Management Vendors, in fulfilling the Conditions.
5.8 From the date of this Agreement until the date on which notice of satisfaction of the Conditions is served in accordance with Clause 5.9, the Purchaser undertakes that it will not, and shall procure that no member of the Purchaser Group shall, either alone or acting in concert with others, enter into arrangements to acquire (or cause another person to acquire) that, if carried into effect, would result in the acquisition of, a decision from Competing Business to the European Commission Group’s business or any other business, the acquisition of which is reasonably likely to prejudice or delay the satisfaction of the Conditions.
5.9 Searchlight and the Management Vendors’ Representative and the Purchaser shall each notify the other in writing promptly upon, and in any event within two Business Days of, becoming aware that the Conditions have been fulfilled.
5.10 If the Conditions have not been satisfied on or before the Long Stop Date (or such later date as the Purchaser, Searchlight and the Management Vendors’ Representative may agree in writing), this Agreement shall automatically terminate (other than the Surviving Provisions).
5.11 In the event that this Agreement terminates pursuant to Article 6(1)(bClause 5.10, no party (nor any of their respective Connected Persons) shall have any claim under this Agreement of any nature whatsoever against any other party (or any of their respective Connected Persons) except in respect of any rights and liabilities which have accrued before termination or under any of the Regulation declaring Surviving Provisions.
5.12 Each of the Concentration compatible Management Vendors shall:
(a) provide in respect of any Pre-Signing Acquisition; and
(b) use all reasonable endeavours to procure that any company whose acquisition by a member of the Group is a Permitted Acquisition (other than a Pre-Signing Acquisition) provides, in each case, as soon as reasonably practicable, the Purchaser with the Common Market, either unconditionally or subject to such conditions, obligations or commitments as shall be satisfactory information (to the Purchaser; extent available), co-operation and no indication having been assistance (to the extent it is reasonably able to do so) as is requested by the Purchaser and as is reasonably necessary for the Purchaser to update any application made that a European Union or EFTA state may take appropriate measures to protect legitimate interests pursuant to Article 21(4) Clause 5.6(c)(i).
5.13 Each of the Regulation Management Vendors shall, in respect of any Pre-Signing Acquisition, when obtaining all consents, approvals or actions of any Governmental Entity which are required in relation to the Concentration or any aspect of the Concentration;
4.1.2 (i) the Purchaser having received an approval notice from the FSA in accordance with the FSMA confirming that there is no objection Pre-Signing Acquisition, make such references to the Purchaser becoming a controller and the Transaction as are required in respect of NB and Northern Bank Executor and Trustee Company Limited and (2) the Company and NB (andthose consents, where appropriate, their respective holding companiesapprovals or action filings, including from Completion the Purchaser) having received from the FSA an approval notice with respect to them becoming controllers of NBIS for the purposes avoidance of doubt, any change in control filing that is to be made with the FSMA pursuant to this Agreement; orFCA in respect of that Pre-Signing Acquisition.
Appears in 1 contract
Sources: Majority Share Purchase Agreement (Brown & Brown, Inc.)
Conditions to Completion. 3.1 The Completion is shall be subject to and conditional on fulfilment the fulfillment or waiver of the following conditions:
4.1.1 either:(1) There being no Material Adverse Change in the operation of the Target Businesses;
(i2) The Business Transaction having been approved by shareholders of Unicom Listco pursuant to applicable laws, regulations and the Listing Rules, and the CDMA Termination Agreement having been approved by the independent shareholders of Unicom Listco;
(3) The Business Transaction having been approved by the Purchaser receiving pursuant to applicable laws and regulations;
(4) The Business Transaction having been approved by shareholders of Unicom A Share Company pursuant to applicable laws, regulations and the Listing Rules, and the CDMA Termination Agreement having been approved by the non-connected shareholders of Unicom A Share Company;
(5) The amendments to articles of association and changes to business scope having been approved by the shareholders of the Purchaser at the general meeting pursuant to applicable laws, regulations and the Listing Rules, and the Telecom CDMA Lease Agreement having been approved by the independent shareholders of the Purchaser;
(6) all approvals, permits, filings and registrations in terms satisfactory to it confirmation connection with the Business Transaction and the Asset Transfer Agreement having been obtained from the European Commission that relevant governmental and regulatory authorities in the transactions or PRC and any part other relevant jurisdictions, which shall include but not limit to, the approval of the transactions contemplated Ministry of Industry and Information for Telecom Group to authorize the Purchaser to operate mobile telecommunications business and to use the relevant telecommunications resources such as CDMA bandwidth and network numbers, and such approvals remain in this Agreement (such transactions being the “Concentration”) do not constitute a concentration having a Community dimension within the meaning of Council Regulation (EC) No. 139/2004 (the “Regulation”); orfull force and effect without modification;
(ii7) the Purchaser receiving All necessary procedures required by applicable laws and binding agreements or documents in terms satisfactory to it confirmation that (being a concentration having a Community dimension within the meaning of the Regulation) the European Commission has decided to declare the Concentration compatible connection with the Common Market pursuant to Article 6(1)(b) of Business Transaction having been performed by the Regulation, either unconditionally or subject to such conditions, obligations or commitments as shall be satisfactory to the Purchaser or a deemed declaration in respect of the Concentration occurs under Article 10(6) of the Regulation; or
(iii) where the Concentration or any part of it has been referred to a competent authority of any EU Member State under Article 4(4) or Article 9 of the Regulation, the Purchaser receiving from the competent authority of that Member State, confirmation in terms reasonably satisfactory to it that the Concentration has been approved Seller in accordance with the relevant legislation of that EU Member StateCompletion Plan, including but not limited to those regarding creditors’ announcement/notification procedures or obtaining such consent from such creditors;
(8) The Detailed Agreements in connection with the Business Transaction and where the European Commission has only referred part of agreement regarding the Concentrationarrangements in the Transition Period having been entered into by the Seller, the Purchaser receiving and Unicom Listco; and
(9) The Asset Transfer between Unicom New Horizon, Unicom Group and Telecom Group having been commenced at the same time.
3.2 Each party shall use its respective reasonable endeavors to procure the satisfaction of all conditions set out in terms satisfactory to it confirmation that Article 3.1 as soon as practicable before 30 September 2008.
3.3 If the European Commission has decided above conditions are not to oppose it and has declared it compatible with satisfied on or before 31 December 2008 (or such other date as the Common Market pursuant to Article 6(1)(bparties may agree), this Agreement will automatically terminate (except for Surviving Provisions). Under such circumstance, no party (or its Affiliate) of the Regulation either unconditionally or subject to such conditions, obligations or commitments as shall be satisfactory entitled to the Purchaser, make a claim of any nature against any other party (or a deemed declaration in respect of the Concentration occurs under Article 10(6its Affiliate) of the Regulation; or
(iv) following a decision under Article 6(1)(c) of the Regulation to initiate proceedings, the Purchaser receiving in terms satisfactory to it a decision from the European Commission pursuant to Article 6(1)(b) of the Regulation declaring the Concentration compatible with the Common Market, either unconditionally or subject to such conditions, obligations or commitments as shall be satisfactory to the Purchaser; and no indication having been made that a European Union or EFTA state may take appropriate measures to protect legitimate interests pursuant to Article 21(4) of the Regulation in relation to the Concentration or any aspect of the Concentration;
4.1.2 (i) the Purchaser having received an approval notice from the FSA in accordance with the FSMA confirming that there is no objection to the Purchaser becoming a controller of NB and Northern Bank Executor and Trustee Company Limited and (2) the Company and NB (and, where appropriate, their respective holding companies, including from Completion the Purchaser) having received from the FSA an approval notice with respect to them becoming controllers of NBIS for the purposes of the FSMA pursuant to this Agreement; or, except for claims related to rights or obligations accrued before the termination or under Surviving Provisions.
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Sources: Business Transfer Framework Agreement (China Unicom LTD)