PRE-COMPLETION. 7.1 Pending Completion, the Seller shall procure that, subject to Applicable Law and this clause 7.1: (a) each Target Group Company shall carry on business in the ordinary course (which shall include applying for the renewal, in the ordinary course, of any registrations, permits, licences, and/or domain name registrations of any member of the Target Group which are due to expire on or before Completion) and in compliance in all material respects with Applicable Law; and (b) no Target Group Company shall: (i) incur capital expenditures exceeding USD1,000,000 in aggregate, with the exception of expenditure that is expressly contemplated by the Budget or that is incurred within the ordinary and usual course of its business; or (ii) incur any expenditure exceeding USD250,000 in any given calendar month in relation to sales, marketing, recruitment and/or business development (including capital expenditure in respect of the same); or (iii) dispose of or grant any Encumbrance in respect of any material part of its assets or any Intellectual Property Rights owned by a Target Group Company; or (iv) accelerate any receivable or delay any payable, other than: (a) in the ordinary and usual course of business and consistent with past practice; or (b) pursuant to the University of Texas’ request to accelerate the contractually agreed prepayment invoicing for September 2025 and September 2026 in the following manner – to invoice in January 2025 (for September 2025) amounts of [***] for [***] and [***] for NeuraCeq and, following settlement of that invoice, to invoice in April 2025 (for September 2026) amounts of [***] for [***] and [***] for NeuraCeq; or (v) waive, forgive, discount or release any liability owing to the Target Group by any member of the Seller’s Group (except as expressly required pursuant to the terms of this agreement); (vi) acquire or dispose of any share, shares or other interest in any company or partnership; or (vii) amend the terms of its borrowing or indebtedness in the nature of borrowing or any guarantee or performance bond given for its benefit or borrow any money or give any guarantee or performance bond; or (viii) declare, make or pay any dividend or other distribution (whether in cash, stock or in kind) or makes any reduction of its paid-up share capital except to another Target Group Company; or (ix) save as required by Applicable Law: (A) terminate the engagement (other than any termination in circumstances constituting summary dismissal or otherwise for cause) or materially vary terms of engagement of any Senior Employee, which shall mean any variation relating to remuneration, term of service, restrictive covenants and ownership of Intellectual Property Rights; (B) amend the terms of employment (including any transfer of employing/engaging entity or change the title, position or duties) of any director, or of any Employee and/or any consultants and self-employed contractors of any Target Group Company, in each case whose gross annual basic salary or fee exceeds USD105,000; (C) engage, employ or terminate the employment or engagement (other than any termination in circumstances constituting summary dismissal) of any Employee and/or any consultants and self-employed contractors of any Target Group Company, in each case, whose gross annual basic salary or fee exceeds USD105,000, other than with respect to the engagement or employment of up to the 27 full time employees that the Target Group Companies intend to hire during the calendar year 2025; or (x) create, issue, purchase or redeem any shares or create any subsidiary; or (xi) make any change to its constitutional documents; or (xii) enter into any joint venture, partnership or agreement or arrangement for the sharing of profits or assets; or (xiii) other than in the ordinary course of the Target Group’s business, capitalise any reserves, or reduce any amount standing to the credit of the share premium account or capital redemption or other reserve, with respect to such Target Group Company other than where such transaction is between Target Group Companies; or (xiv) borrow any money, accept any financial facility (except borrowings from its bankers not exceeding USD50,000 in the aggregate or grant or obtain credit (other than given in the ordinary course of business and advances made to Employees against expenses incurred by them on behalf of any Target Group Company) exceeding USD50,000; or (xv) incur any Trade Debts other than consistent with past practice in nature and amount in the previous 12 months prior to the date of this agreement; or (xvi) make a loan or advance (other than a deposit of money with an authorised institution under the Banking Act 1987 (or equivalent), any loans between Target Group Companies, any cash pooling arrangements within the Target Group or the granting of normal trade credit or prepayments in the ordinary course of business) or give a guarantee or indemnity to secure another person’s (but excluding a Target Group Company’s) obligations to a person, in each case exceeding USD50,000 in aggregate; or (xvii) enter into any foreign exchange contracts, interest rate swaps or other derivative instruments; or (xviii) grant, renew or modify the terms of any material loans or other financial facilities or any guarantees, comfort letters or indemnities for the benefit of any person (other than a Target Group Company); or (xix) take any step to initiate, consent, approve or acquiesce to a voluntary winding up, dissolution, administration or such other analogous procedure of such Target Group Company; or (xx) instigate, settle, or take any action, make any demand or waive any right in relation to any litigation or arbitration or mediation proceedings (except relating to debt collection in the ordinary and normal course of the relevant Target Group Company’s business or applications for an interim injunction or other urgent application where it is not reasonably practicable to obtain the requisite consent) where the amount claimed exceeds USD150,000; or (xxi) change in any material respect its accounting procedures, principles or practices or change its accounting reference date or change its auditors; or (xxii) make, change or revoke any material Tax election, or file any Tax return in a manner which is inconsistent with past practice in any material respect; or (xxiii) settle or compromise any material Tax claim made by a Tax Authority; or (xxiv) enter into any Tax consolidation (including for the avoidance of doubt a VAT group), Tax allocation agreement, Tax sharing agreement, or Tax indemnity agreement, in each case with any entity other than another Target Group Company; or (xxv) change its residence for Tax purposes or knowingly create a new permanent establishment in any jurisdiction; or (xxvi) surrender, dispose of, or transfer any asset at less than market value; or (xxvii) amend or terminate any contract meeting the description of paragraphs (a), (c), (d) or (i) of the definition of “Material Contract” in Part 2 of Schedule 4 or enter into any contract or agreement which would meet the foregoing description if executed by a Target Group Company; (xxviii) enter into or amend any agreement or arrangement with any member of the Seller’s Group, other than to formalise the Licence and Commercial Agreement(s) (but only to the extent that the formal agreement(s) is on terms substantially consistent with those set out in the Licence and Commercial Agreement(s) – Term Sheet); or (xxix) (A) adopt, enter into, terminate or materially amend any collective bargaining agreement or U.S. Benefit Plan or any arrangement that would be a U.S. Benefit Plan if it were in existence on the date of this agreement, (B) grant or pay any change of control, severance, retention or termination compensation or benefits to, or increase in any manner the change of control, severance or termination compensation or benefits of, any employee or consultant, (C) grant or remove restrictions from any awards under any U.S. Benefit Plan, (D) take any action to fund or in any other way secure the payment of compensation or benefits under any employee plan, agreement, contract or arrangement or U.S. Benefit Plan, except as required under any employee plan, agreement, contract or arrangement or U.S. Benefit Plan, in each case, as in effect on the date of this agreement or (E) take any action to accelerate the vesting or payment of any compensation or benefit under any U.S. Benefit Plan; or (xxx) agree, conditionally or otherwise, to do any of the foregoing. 7.2 The Seller may do any of the matters in clause 7.1 with the prior consent of the Purchaser (such consent not to be unreasonably withheld, conditioned or delayed), including a deemed consent pursuant to clause 7.3, or without such consent: (a) if reasonably undertaken in an emergency or disaster situation with the intention of minimising any adverse effect of such situation; or (b) to comply with any applicable legal or regulatory requirements; or (c) if required to give effect to, or permitted by, the terms of any of the Transaction Documents, including for the avoidance of doubt the transactions described in clause 7.8 below; or (d) if required to be done or not done to comply with any contract Disclosed in the Disclosed Information; or (e) if explicitly requested by the Purchaser in writing. 7.3 A request for the Purchaser’s consent under clause 7.1 (as referred to in clause 7.2) shall be sent in accordance with clause 21. The Purchaser shall, within ten Business Days of receiving a request for written consent under clause 7.1 (and in accordance with clause 21): (i) give such consent; or (ii) inform the Seller that its request has been refused (giving reasonable details of the grounds for refusal). If the Purchaser’s consent or refusal is not received by the Seller within such ten Business Day period, the Purchaser shall be deemed to have consented to the taking of the relevant action. 7.4 The Purchaser may terminate this agreement by written notice to the Seller if, at any time before Completion, the Seller has not complied in all material respects with clause 7.1, and such non-compliance either: (a) is not capable of being cured by the Long Stop Date; or (b) has not been cured by the Seller within 20 Business Days after the Purchaser gives written notice to the Seller specifying the nature and extent of the non-compliance or by the Long Stop Date (whichever is later) provided that the Purchaser may not terminate this agreement pursuant to this clause 7.4 if it, or the Purchaser’s Guarantor, is in material breach of the agreement. 7.5 From the date of this agreement, the Seller, the Target Group Companies and the Purchaser (as applicable) undertake to use their respective reasonable endeavours and negotiate in good faith (and, to the extent not agreed before Completion, from Completion, the Purchaser undertakes to procure that the relevant Target Group Company uses its reasonable endeavours and negotiates in good faith) to agree the terms of one or more commercial agreements between Life Healthcare Group Holdings (or one or more of its Affiliates) and a Target Group Company and such agreement(s) shall be consistent with the Licence and Commercial Agreement(s) – Term Sheet and shall become effective at, or as soon as reasonably practicable after, Completion. 7.6 If the Seller and the Purchaser (on behalf of the Target Group Companies) (together the Contracting Parties) cannot agree upon the terms of the Licence and Commercial Agreement(s) by the date that is 60 Business Days after the Completion Date: (a) either the Seller or the Purchaser shall have the right to submit such dispute to arbitration for resolution (the Referring Party) in accordance with the process described in this clause 7.6; (b) the Referring Party shall notify the other party (the Respondent) of its decision to initiate the arbitration proceeding pursuant to this clause 7.6 by delivering written notice to the Respondent within two Business Days of making such referral; (c) within ten Business Days following receipt of such notice, the Contracting Parties shall use reasonable endeavours to agree on an independent Third Party expert with at least ten years of experience in the licensing of pharmaceutical compounds or products. If the Contracting Parties cannot agree on such expert within such time period, each Contracting Party shall nominate one independent expert satisfying such criteria within such ten Business Day period, and the two independent experts so selected shall nominate the final independent expert within five Business Days of their nomination. If the two experts so selected cannot agree on the final independent expert, either of the Parties shall request the ICC International Centre for ADR to appoint an expert (the Expert). For the avoidance of doubt, it is understood and agreed that such final independent expert should have at least ten years of experience in the licensing of pharmaceutical compounds or products and should be appointed as soon as practicable. All costs of, and associated with, the request for the appointment of an expert by the ICC International Centre for ADR shall be borne equally between the Parties; (d) within five Business Days of its appointment, the Expert shall set a date for the arbitration, which date shall be no more than 40 Business Days after the date the arbitration is demanded under subclause 7.6(a) above; (e) the arbitration shall be “baseball-style” arbitration; accordingly, at least ten Business Days prior to the arbitration, each Contracting Party shall provide the Expert with a form of the definitive written agreement of the Licence and Commercial Agreement(s) proposed by it which in each case, must be consistent with the principles outlined in the Licence and Commercial Agreement(s) – Term Sheet and must not contain any provisions that contradict or undermine those principles (each, a Proposed Agreement). Each such Proposed Agreement may be no more than 55 single-sided, single-spaced pages, and must clearly provide and identify the Contracting Party’s position with respect to the disputed matter(s); (f) after receiving both Contracting Parties’ Proposed Agreements, the Expert will promptly distribute each Party’s Proposed Agreement(s) to the other Party. No later than five Business Days in advance of the arbitration or, if earlier, seven Business Days following receipt of such Proposed Agreement(s), the Contracting Parties shall submit to the Expert and exchange response briefs of no more than ten single-sided, single-spaced pages. The Contracting Parties’ briefs may include or attach relevant exhibits in the form of documentary evidence, any other material voluntarily disclosed to the Referring Party in advance, or publicly available information. The Contracting Parties’ briefs may also include or attach demonstratives. Neither Party may have any other communications (either written or oral) with the Expert other than for the sole purpose of engaging the expert or as expressly permitted in this clause 7.6; (g) no later than seven Business Days following the arbitration (or, if the Expert does not require an arbitration hearing, the deadline for receipt of each Contracting Party’s response briefs), the Expert shall issue his or her written decision. The Expert shall select one Contracting Party’s Proposed Agreement(s) (in full and without modification) as his or her decision, and shall not have the authority to render any substantive decision other than to select the Proposed Agreement(s) submitted by either Contracting Party. For the avoidance of doubt, the Expert may only be permitted to select a Proposed Agreement if such agreement contains terms which are consistent with the principles outlined in the Licence and Commercial Agreement(s) – Term Sheet and does contain any provisions that contradict or undermine those principles. The Expert shall have no discretion or authority with respect to modifying the positions of the Contracting Parties; (h) the Expert’s decision shall be final and binding on the Contracting Parties and the written agreement selected by the Expert shall constitute a binding agreement between the Contracting Parties (which, for the avoidance of doubt, in the case of the Purchaser shall be binding on the re
Appears in 1 contract
Sources: Sale and Purchase Agreement (Lantheus Holdings, Inc.)
PRE-COMPLETION. 7.1
8.1 Pending Completion, the Seller shall procure that, subject to Applicable Law and this clause 7.1:8.2:
(a) each Target Group Company shall carry on business in the ordinary course (which shall include applying for the renewal, in the ordinary course, of any registrations, permits, licences, and/or domain name registrations of any member of the Target Group which are due to expire on or before Completion) and in compliance in all material respects with Applicable Law;
(b) without prejudice to the generality of subclause 8.1(a), between the date of this agreement and Completion, each Target Group Company shall manage its working capital in the ordinary course of business consistent with the Target Group’s standard practices in the 12-month period prior to the date of this agreement; and
(bc) no Target Group Company shall, or in the case of subclause 8.1(c)(xx)(2) below, no Target Group Company or member of the Seller’s Group (including, for the avoidance of doubt, the Seller) shall:
(i) incur any capital expenditures expenditure exceeding USD1,000,000 GBP250,000 in aggregate, with the exception of (1) expenditure that is expressly contemplated by the Budget or that is incurred within in the ordinary and usual course of its businessbusiness or (2) expenditure within its applicable business plan of the then current financial year that may be in excess of this amount; or
(ii) incur any expenditure exceeding USD250,000 in any given calendar month in relation to sales, marketing, recruitment and/or business development (including capital expenditure in respect of the same); or
(iii) dispose of or grant any Encumbrance in respect of any material part of its assets or any Intellectual Property Rights owned by a Target Group CompanyCompany (other than under the TM Assignment), except in the ordinary course of its business; or
(iv) accelerate any receivable or delay any payable, other than: (a) in the ordinary and usual course of business and consistent with past practice; or (b) pursuant to the University of Texas’ request to accelerate the contractually agreed prepayment invoicing for September 2025 and September 2026 in the following manner – to invoice in January 2025 (for September 2025) amounts of [***] for [***] and [***] for NeuraCeq and, following settlement of that invoice, to invoice in April 2025 (for September 2026) amounts of [***] for [***] and [***] for NeuraCeq; or
(v) waive, forgive, discount or release any liability owing to the Target Group by any member of the Seller’s Group (except as expressly required pursuant to the terms of this agreement);
(viiii) acquire or dispose of any share, shares or other interest in any company or partnershippartnership or assume or incur any liability, obligation or expense, other than in the ordinary and usual course of its business; oror
(viiiv) amend the terms of its borrowing or indebtedness in the nature of borrowing or any guarantee or performance bond given for its benefit or borrow any money or give any guarantee or performance bond; or
(viiiv) make any loans exceeding, in aggregate, GBP25,000, except loans to another wholly- owned Target Group Company; or
(vi) declare, make or pay any dividend or other distribution distribution; or
(whether vii) make any material change in cashthe terms and conditions of employment of any Senior Employee or dismiss any Senior Employee other than for cause; or
(viii) grant any awards or options under a Share Plan to current or former or prospective employees, stock directors, officers or in kind) or makes any reduction consultants of its paid-up share capital except to another the Target Group Company(or otherwise permit any awards or options to be granted under any Share Plan to current or former or prospective employees, directors, officers or consultants of the Target Group); or
(ix) save as required by Applicable Law:
(A) terminate the engagement (other than permit any termination in circumstances constituting summary dismissal or otherwise for cause) or materially vary terms of engagement of any Senior Employee, which shall mean any variation relating to remuneration, term of service, restrictive covenants and ownership of Intellectual Property Rights;
(B) amend the terms of employment (including any transfer of employing/engaging entity or change the title, position or duties) of any director, or of any Employee and/or any consultants and self-employed contractors of any Target Group Company, in each case whose gross annual basic salary or fee exceeds USD105,000;
(C) engage, employ or terminate the employment or engagement (other than any termination in circumstances constituting summary dismissal) of any Employee and/or any consultants and self-employed contractors of any Target Group Company, in each case, whose gross annual basic salary or fee exceeds USD105,000, other than with respect amendments to the engagement Share Plans (insofar as they relate to any of the current or employment former or prospective employees, directors, officers or consultants of up to the 27 full time employees that the Target Group Companies intend to hire during the calendar year 2025Group); or
(x) create, issue, purchase or redeem any shares or create any subsidiary; or
(xi) make any change to its constitutional documents; or
(xii) enter into any joint venture, partnership or agreement or arrangement for the sharing of profits or assets; or
(xiii) other than in the ordinary course of the Target Group’s business, capitalise any reserves, or reduce any amount standing to the credit of the share premium account or capital redemption or other reserve, with respect to such Target Group Company other than where such transaction is between Target Group Companies; or
(xiv) borrow any money, accept any financial facility (except borrowings from its bankers not exceeding USD50,000 in the aggregate or grant or obtain credit (other than given in the ordinary course of business and advances made to Employees against expenses incurred by them on behalf of any Target Group Company) exceeding USD50,000; or
(xv) incur any Trade Debts other than consistent with past practice in nature and amount in the previous 12 months prior to the date of this agreement; or
(xvi) make a loan or advance (other than a deposit of money with an authorised institution under the Banking Act 1987 (or equivalent), any loans between Target Group Companies, any cash pooling arrangements within the Target Group or the granting of normal trade credit or prepayments in the ordinary course of business) or give a guarantee or indemnity to secure another person’s (but excluding a Target Group Company’s) obligations to a person, in each case exceeding USD50,000 in aggregate; or
(xvii) enter into any foreign exchange contracts, interest rate swaps or other derivative instruments; or
(xviii) grant, renew or modify the terms of any material loans or other financial facilities or any guarantees, comfort letters or indemnities for the benefit of any person (other than a Target Group Company); or
(xix) take any step to initiate, consent, approve or acquiesce to a voluntary winding up, dissolution, administration or such other analogous procedure of such Target Group Company; or
(xx) instigate, settle, or take any action, make any demand or waive any right in relation to any litigation or arbitration or mediation proceedings (except relating to debt collection in the ordinary and normal course of the relevant Target Group Company’s business or applications for an interim injunction or other urgent application where it is not reasonably practicable to obtain the requisite consent) where the amount claimed exceeds USD150,000GBP100,000; or
(xxixiii) change in any material respect its accounting procedures, principles or practices or change its accounting reference date or change its auditors; or
(xxii) make, change or revoke any material Tax election, or file any Tax return in a manner which is inconsistent with past practice in any material respect; or
(xxiii) settle or compromise any material Tax claim made by a Tax Authority; or
(xxiv) enter into any Tax consolidation (including for the avoidance of doubt a VAT group), Tax allocation agreement, Tax sharing agreement, or Tax indemnity agreement, in each case with any entity other than another Target Group Company; or
(xxvxiv) change its residence for Tax purposes or knowingly create a new permanent establishment in any jurisdiction; or
(xxvixv) surrender, dispose ofamend any Tax return previously filed with a Taxation Authority or amend or revoke any Tax election previously made, or transfer settle any asset at less than market valueTax dispute with any Taxation Authority in an amount in excess of GBP100,000; or
(xxviixvi) amend or terminate any contract meeting a material agreement, arrangement or obligation to which it is a party where such material agreement, arrangement or obligation was entered other than in the description ordinary and usual course of paragraphs (a), (c), (d) or (i) of the definition of “Material Contract” in Part 2 of Schedule 4 or enter into any contract or agreement which would meet the foregoing description if executed by a Target Group Company;its business; or
(xxviiixvii) save for any Encumbrance arising in the ordinary and usual course of its business, create or amend any Encumbrance over any of its real estate assets, Intellectual Property Rights assets or other material assets; or
(xviii) abandon or surrender or allow to expire or lapse any registered Intellectual Property Rights comprised within, or fail to pay any registration or renewal fees that fall due in respect of or otherwise fail to renew, or fail to prosecute in the ordinary course of business any applications comprised within, the Registered IP; or
(xix) enter into or amend any agreement or arrangement with any member of the Seller’s Group, Group other than to enter into the TM Assignment or formalise any of the Licence Continuing Arrangements which are in the form of a letter of intent (and Commercial Agreement(s) (but only to the extent that the formal agreement(sagreement is substantially in accordance with the associated letter of intent); or
(1) settle any Intra-Group Payables (whether principal or interest thereon) or (2) transfer the creditor position or debtor position in respect of any Intra-Group Payables to an entity that is on terms substantially consistent with those set out not resident in the Licence and Commercial Agreement(sUnited Kingdom; or
(xxi) – Term Sheetincrease the amount of Intra-Group Payables (save where the increase is pursuant to interest accruing in accordance with the terms of any such Intra-Group Payables); or
(xxixxxii) (A) adopt, enter intovary, terminate or materially amend waive any collective bargaining agreement of the Intra-Group Payables or U.S. Benefit Plan or any arrangement that would be a U.S. Benefit Plan if it were in existence on the date of this agreement, (B) grant or pay any change of control, severance, retention or termination compensation or benefits to, or increase in any manner the change of control, severance or termination compensation or benefits of, any employee or consultant, (C) grant or remove restrictions from any awards under any U.S. Benefit Plan, (D) take any action to fund or in any other way secure the payment of compensation or benefits under any employee plan, agreement, contract or arrangement or U.S. Benefit Plan, except as required under any employee plan, agreement, contract or arrangement or U.S. Benefit Plan, in each case, as in effect on the date of this agreement or (E) take any action to accelerate the vesting or payment of any compensation or benefit under any U.S. Benefit PlanIntra-Group Receivables; or
(xxxxxiii) agree, conditionally or otherwise, to do any of the foregoing.foregoing.
7.2 8.2 The Seller may do any of the matters in clause 7.1 8.1 with the prior consent of the Purchaser (such consent not to be unreasonably withheld, conditioned or delayed), including a deemed consent pursuant to clause 7.38.3, or without such consent:consent (other than in the case of subclause 8.1(c)(xx)):
(a) if reasonably undertaken in an emergency or disaster situation with the intention of minimising any adverse effect of such situationsituation in relation to the Target Group and then only to the extent reasonably required; or
(b) to the extent such action is Permitted Leakage; or
(c) to comply with any applicable legal or regulatory requirements; or
(cd) if required to give effect to, or expressly permitted by, the terms of any of the Transaction Documents, including for the avoidance of doubt the transactions described in clause 7.8 belowDocuments or any Continuing Arrangement; oror
(de) if required to be done or not done to comply with any contract Disclosed in the Disclosed InformationMaterial Contract; or
(ef) if explicitly requested by the Purchaser in writing, provided, in the case of paragraphs (a), (c) and (e), that the Seller shall (subject to Applicable Law (including Competition Law)): (i) notify the Purchaser as soon as reasonably practicable of any action taken or proposed to be taken as described in this clause 8.2; (ii) provide to the Purchaser all such information as the Purchaser may reasonably request; and (iii) where reasonably practicable to do so, use reasonable endeavours to consult with the Purchaser in respect of any such action.
7.3 8.3 A request for the Purchaser’s consent under clause 7.1 8.1 (as referred to in clause 7.28.2) shall be sent in accordance with clause 2122. The Purchaser shall, within ten Business Days of receiving a request for written consent under clause 7.1 8.1 (and in accordance with clause 2122): (i) give such consent; or (ii) inform the Seller that its request has been refused (giving reasonable details of the grounds for refusal). If the Purchaser’s consent or refusal is not received by the Seller within such ten Business Day period, the Purchaser shall be deemed to have consented to the taking of the relevant action.
7.4 The Purchaser may terminate this agreement by written notice 8.4 Subject to the Seller ifApplicable Law (including Competition Law), at any time before prior to Completion, the Seller has not complied in all material respects with clause 7.1shall, and such non-compliance either: (a) is not capable of being cured by the Long Stop Date; or (b) has not been cured by the Seller within 20 Business Days after the Purchaser gives written notice to the Seller specifying the nature and extent of the non-compliance or by the Long Stop Date (whichever is later) provided shall procure that the Purchaser may not terminate this agreement pursuant to this clause 7.4 if it, or the Purchaser’s Guarantor, is in material breach of the agreement.
7.5 From the date of this agreement, the Seller, the Target Group Companies (including any relevant Senior Employee) shall, allow or provide to the Purchaser, during normal business hours on any Business Day and on reasonable notice to the Seller:
(a) reasonable access to, and to take copies of (at the Purchaser’s own cost), the books, records and documents of or relating in whole or in part to the Target Group;
(b) reasonable access to the directors and employees of the Target Group (who shall be instructed to give all such information, assistance and explanations as the Purchaser or its agents may reasonably request); and
(as applicablec) undertake to use their respective reasonable endeavours at the Purchaser’s own cost, all assistance (and negotiate in good faith (and, make available to the extent not agreed before Completion, from Completion, the Purchaser undertakes to procure that the relevant Target Group Company uses its reasonable endeavours and negotiates in good faith) to agree the terms of one or more commercial agreements between Life Healthcare Group Holdings (or one or more of its Affiliates) and a Target Group Company and such agreement(s) shall be consistent with the Licence and Commercial Agreement(s) – Term Sheet and shall become effective at, or as soon as reasonably practicable after, Completion.
7.6 If the Seller and the Purchaser (on behalf of information regarding the Target Group Companies) (together as the Contracting Parties) cannot agree upon Purchaser may reasonably require for the terms purpose of the Licence financings to be entered into post-Completion in respect of the Target Group (the Refinancing) (including providing reasonable access to directors and Commercial Agreement(semployees of the Target Group Companies during working hours to discuss the Refinancing and provide reasonable assistance in respect of the Refinancing), provided that the above shall not:
(i) by give the Purchaser or its agents any right to give instructions or otherwise interfere with the management and conduct of any Target Group Company; or
(ii) require the disclosure to the Purchaser (or its agents) of any document or information or the taking of any action which would constitute a breach of Competition Law, provided that, in order for the Seller to refuse providing information on this basis, the Seller shall promptly provide to the Purchaser’s Lawyers (on a counsel to counsel only basis) the legal advice that the Seller has obtained to conclude that the provision of such information or the taking of such action would be in breach of Competition Law.
8.5 Between the date of this agreement and Completion, the Seller shall (and shall procure that is 60 Business Days after the Completion Date:each Target Group Company shall):
(a) either the Seller or the Purchaser shall have the right to submit such dispute to arbitration for resolution (the Referring Party) in accordance with the process described in this clause 7.6;
(b) the Referring Party shall notify the other party (the Respondent) of its decision to initiate the arbitration proceeding pursuant to this clause 7.6 by delivering written notice to the Respondent within two Business Days of making such referral;
(c) within ten Business Days following receipt of such notice, the Contracting Parties shall use reasonable endeavours to agree on an independent Third Party expert with at least ten years obtain all necessary Change of experience in the licensing of pharmaceutical compounds or products. If the Contracting Parties cannot agree on such expert within such time period, each Contracting Party shall nominate one independent expert satisfying such criteria within such ten Business Day period, Control Consents as soon as possible (and the two independent experts so selected Seller shall nominate deliver evidence to the final independent expert within five Business Days Purchaser, on Completion, of their nomination. If the two experts so selected cannot agree on the final independent expert, either any Change of the Parties shall request the ICC International Centre for ADR Control Consent that has been obtained prior to appoint an expert (the ExpertCompletion). For the avoidance of doubt, it the obtaining of Change of Control Consents is understood not a condition precedent to Completion; and
(b) subject to Applicable Law (including Competition Laws) consult with the Purchaser as to the strategy in obtaining the Change of Control Consents and agreed any commitments or undertakings proposed to be given to, or proposed amendments to the arrangements with, any counterparties (and take into account any reasonable comments or views of the Purchaser regarding the same) and provided further that, without the prior written consent of the Purchaser, neither the Seller nor any member of the Target Group shall communicate to any third party any details regarding the Purchaser’s Group (other than those details disclosed in the Draft LHG Shareholder Circular or, once dispatched, the Approved LHG Shareholder Circular) or the Purchaser’s intentions regarding the Target Group following Completion.
8.6 Subject to Applicable Law (including Competition Law), prior to Completion, the Seller shall keep the Purchaser reasonably informed as to the progress of the relevant Target Group Company in obtaining the Change of Control Consents.
8.7 At Completion, the Seller shall (or shall procure that such final independent expert should have the relevant member of the Seller’s Group shall), with effect from Completion, assign the benefit (with effect from Completion) of each of the Auction NDAs to the Purchaser or (as the Purchaser directs at least ten years of experience in the licensing of pharmaceutical compounds or products and should be appointed as soon as practicable. All costs of, and associated with, the request for the appointment of an expert by the ICC International Centre for ADR shall be borne equally between the Parties;
(d) within five Business Days of its appointment, the Expert shall set a date for the arbitration, which date shall be no more than 40 Business Days after the date the arbitration is demanded under subclause 7.6(a) above;
(e) the arbitration shall be “baseball-style” arbitration; accordingly, at least ten Business Days prior to the arbitration, each Contracting Party shall provide the Expert with Completion) a form member of the definitive written agreement of the Licence and Commercial Agreement(s) proposed by it which in each caseTarget Group and, must be consistent with the principles outlined in the Licence and Commercial Agreement(s) – Term Sheet and must not contain any provisions that contradict or undermine those principles (each, a Proposed Agreement). Each such Proposed Agreement may be no more than 55 single-sided, single-spaced pages, and must clearly provide and identify the Contracting Party’s position with respect to the disputed matter(s);
(f) after receiving both Contracting Parties’ Proposed Agreementsextent required under each Auction NDA, the Expert will promptly distribute each Party’s Proposed Agreement(s) give notice to the other Party. No later than five Business Days parties to such Auction NDA to give effect to such assignment.
8.8 As soon as reasonably practicable following the date of this agreement, and in advance of the arbitration or, if earlier, seven Business Days following receipt of such Proposed Agreement(s), the Contracting Parties shall submit to the Expert and exchange response briefs of no more than ten single-sided, single-spaced pages. The Contracting Parties’ briefs may include or attach relevant exhibits in the form of documentary evidence, any other material voluntarily disclosed to the Referring Party in advance, or publicly available information. The Contracting Parties’ briefs may also include or attach demonstratives. Neither Party may have any other communications (either written or oral) with the Expert other than for the sole purpose of engaging the expert or as expressly permitted in this clause 7.6;
(g) event no later than seven Business Days following 30 days after the arbitration (or, if the Expert does not require an arbitration hearingdate of this Agreement, the deadline for receipt of each Contracting Party’s response briefs), Seller shall procure that the Expert shall issue his or her written decision. The Expert shall select one Contracting Party’s Proposed Agreement(s) (in full TM Assignment is duly executed by Alliance Medical Limited and without modification) as his or her decision, and shall not have the authority to render any substantive decision other than to select the Proposed Agreement(s) submitted by either Contracting Party. For the avoidance of doubt, the Expert may only be permitted to select a Proposed Agreement if such agreement contains terms which are consistent with the principles outlined in the Licence and Commercial Agreement(s) – Term Sheet and does contain any provisions that contradict or undermine those principles. The Expert shall have no discretion or authority with respect to modifying the positions of the Contracting Parties;
(h) the Expert’s decision shall be final and binding on the Contracting Parties and the written agreement selected by the Expert shall constitute a binding agreement between the Contracting Parties (which, for the avoidance of doubt, in the case of the Purchaser shall be binding on the reLife UK Healthcare Limited.
Appears in 1 contract
Sources: Sale and Purchase Agreement
PRE-COMPLETION. 7.1 6.1 Pending Completion, the Seller Purchaser shall ensure and procure thatthat they and their subsidiaries and the Vendors shall ensure and procure that Alpha and its subsidiaries will comply with the following, subject to Applicable Law and this clause 7.1except with the prior written consent of each other:
(a) each Target Group Company shall not do, allow or procure any act or omission which would constitute a breach of any of the Warranties if they were given on or at any time before Completion by reference to the facts and circumstances then existing;
(b) no action is taken which is inconsistent with the provisions of this Agreement or the consummation of the transactions contemplated by this Agreement;
(c) carry on business in the ordinary course (which shall include applying for the renewal, in the ordinary normal course, of any registrations, permits, licences, and/or domain name registrations of any member of the Target Group which are due to expire on or before Completion) and in compliance in all material respects with Applicable Law; and
(b) no Target Group Company shall:
(i) incur capital expenditures exceeding USD1,000,000 in aggregate, with the exception of expenditure that is expressly contemplated by the Budget or that is incurred within the ordinary and usual course of its business; or
(ii) incur any expenditure exceeding USD250,000 in any given calendar month in relation to sales, marketing, recruitment and/or business development (including capital expenditure in respect of the same); or
(iii) dispose of or grant any Encumbrance in respect of any material part of its assets or any Intellectual Property Rights owned by a Target Group Company; or
(iv) accelerate any receivable or delay any payable, other than: (a) in the ordinary and usual course of business and consistent with past practice; or (b) pursuant to the University of Texas’ request to accelerate the contractually agreed prepayment invoicing for September 2025 and September 2026 in the following manner – to invoice in January 2025 (for September 2025) amounts of [***] for [***] and [***] for NeuraCeq and, following settlement of that invoice, to invoice in April 2025 (for September 2026) amounts of [***] for [***] and [***] for NeuraCeq; or
(v) waive, forgive, discount or release any liability owing to the Target Group by any member of the Seller’s Group (except as expressly required pursuant to the terms of this agreement);
(vid) acquire or dispose not do anything that is not in their ordinary course of any share, shares or other interest business;
(e) not reduce their share capital in any company way or partnership; orreclassify or alter the terms their issued securities;
(viif) amend the terms not buy back any of its borrowing or indebtedness in the nature of borrowing or any guarantee or performance bond given for its benefit or borrow any money or give any guarantee or performance bond; ortheir shares;
(viiig) declarenot announce, make declare or pay any dividend or other distribution (whether in cashto their shareholders, stock or in kind) or makes any reduction of its paid-up share capital except to another Target Group Company; or
(ix) save as required by Applicable Law:
(A) terminate the engagement (other than any termination in circumstances constituting summary dismissal or otherwise for cause) or materially vary terms pay dividends declared prior to the date of engagement of any Senior Employee, which shall mean any variation relating to remuneration, term of service, restrictive covenants and ownership of Intellectual Property Rightsthis agreement;
(Bh) amend not issue any shares except pursuant to the terms of employment (including any transfer of employing/engaging entity or change the title, position or duties) conversion of any director, issued securities or exercise of any Employee and/or any consultants and self-employed contractors of any Target Group Company, in each case whose gross annual basic salary or fee exceeds USD105,000options under an employee share option scheme;
(Ci) engage, employ or terminate the employment or engagement (other than not grant any termination in circumstances constituting summary dismissal) of any Employee and/or any consultants and self-employed contractors of any Target Group Company, in each case, whose gross annual basic salary or fee exceeds USD105,000, other than with respect to the engagement or employment of up to the 27 full time employees that the Target Group Companies intend to hire during the calendar year 2025; oroptions over their shares;
(xj) create, issue, purchase or redeem any shares or create any subsidiary; ornot alter the provisions of their Charter Documents;
(xik) make not sell, transfer or dispose or otherwise jeopardize of the whole or any change to its constitutional documents; or
(xii) enter into any joint venturepart of business, partnership undertakings or agreement or arrangement for the sharing of profits or assets; or
(xiii) other assets otherwise than in the ordinary course of their business;
(l) not, otherwise than in the Target Group’s ordinary course of their business and consistent with their past practice –
(i) increase the remuneration of, or otherwise vary the terms of employment of any of their directors or employees;
(ii) accelerate the rights of any directors or employees to compensation or benefits, except where such acceleration occurs automatically the terms of an existing agreement or scheme;
(iii) pay any of their directors or employees a termination payment.
(m) not lend any money outside the normal course of business, capitalise any reserves, or reduce any amount standing which will not include advances to the credit of the share premium account or capital redemption or other reserve, with respect to such Target Group Company other than where such transaction is between Target Group Companies; ortheir joint venture companies for on-going developments and investments;
(xivn) borrow any moneymoney or give any debenture, accept mortgage, charge or other Encumbrance over any financial facility (except borrowings from of its bankers not exceeding USD50,000 in the aggregate assets or grant or obtain credit (other than given undertaking unless it is in the ordinary course of business and advances made to Employees against expenses incurred by them on behalf does not exceed the aggregate sum of any Target Group Company) exceeding USD50,000; orUSD1,000,000 (or its equivalent in Ringgit Malaysia);
(xvo) incur any Trade Debts other than consistent with past practice in nature and amount in the previous 12 months prior to the date of this agreement; or
(xvi) make a loan not enter into capital expenditure commitments, hire purchase, leasing, rental or advance (other than a deposit of money with an authorised institution under the Banking Act 1987 (conditional sale agreements or equivalent), any loans between Target Group Companies, any cash pooling arrangements within the Target Group or the granting of normal trade credit or prepayments unless it is in the ordinary course of business) or give a guarantee or indemnity to secure another person’s (but excluding a Target Group Company’s) obligations to a person, in each case exceeding USD50,000 in aggregate; or
(xvii) enter into any foreign exchange contracts, interest rate swaps or other derivative instruments; or
(xviii) grant, renew or modify the terms of any material loans or other financial facilities or any guarantees, comfort letters or indemnities for the benefit of any person (other than a Target Group Company); or
(xix) take any step to initiate, consent, approve or acquiesce to a voluntary winding up, dissolution, administration or such other analogous procedure of such Target Group Company; or
(xx) instigate, settle, or take any action, make any demand or waive any right in relation to any litigation or arbitration or mediation proceedings (except relating to debt collection in the ordinary and normal course of the relevant Target Group Company’s business or applications for an interim injunction or other urgent application where it is not reasonably practicable to obtain the requisite consent) where the amount claimed exceeds USD150,000; or
(xxi) change in any material respect its accounting procedures, principles or practices or change its accounting reference date or change its auditors; or
(xxii) make, change or revoke any material Tax election, or file any Tax return in a manner which is inconsistent with past practice in any material respect; or
(xxiii) settle or compromise any material Tax claim made by a Tax Authority; or
(xxiv) enter into any Tax consolidation (including for the avoidance of doubt a VAT group), Tax allocation agreement, Tax sharing agreement, or Tax indemnity agreement, in each case with any entity other than another Target Group Company; or
(xxv) change its residence for Tax purposes or knowingly create a new permanent establishment in any jurisdiction; or
(xxvi) surrender, dispose of, or transfer any asset at less than market value; or
(xxvii) amend or terminate any contract meeting the description of paragraphs (a), (c), (d) or (i) of the definition of “Material Contract” in Part 2 of Schedule 4 or enter into any contract or agreement which would meet the foregoing description if executed by a Target Group Company;
(xxviiip) not enter into capital expenditure commitments, hire purchase, leasing, rental or amend any agreement conditional sale agreements or arrangement with any member arrangements outside the ordinary course of business that exceed the Seller’s Group, other than to formalise the Licence and Commercial Agreement(s) (but only to the extent that the formal agreement(s) is on terms substantially consistent with those set out in the Licence and Commercial Agreement(s) – Term Sheet); or
(xxix) (A) adopt, enter into, terminate or materially amend any collective bargaining agreement or U.S. Benefit Plan or any arrangement that would be a U.S. Benefit Plan if it were in existence on the date aggregate sum of this agreement, (B) grant or pay any change of control, severance, retention or termination compensation or benefits to, or increase in any manner the change of control, severance or termination compensation or benefits of, any employee or consultant, (C) grant or remove restrictions from any awards under any U.S. Benefit Plan, (D) take any action to fund or in any other way secure the payment of compensation or benefits under any employee plan, agreement, contract or arrangement or U.S. Benefit Plan, except as required under any employee plan, agreement, contract or arrangement or U.S. Benefit Plan, in each case, as in effect on the date of this agreement or (E) take any action to accelerate the vesting or payment of any compensation or benefit under any U.S. Benefit Plan; or
(xxx) agree, conditionally or otherwise, to do any of the foregoing.
7.2 The Seller may do any of the matters in clause 7.1 with the prior consent of the Purchaser (such consent not to be unreasonably withheld, conditioned or delayed), including a deemed consent pursuant to clause 7.3, or without such consent:
(a) if reasonably undertaken in an emergency or disaster situation with the intention of minimising any adverse effect of such situation; or
(b) to comply with any applicable legal or regulatory requirements; or
(c) if required to give effect to, or permitted by, the terms of any of the Transaction Documents, including for the avoidance of doubt the transactions described in clause 7.8 below; or
(d) if required to be done or not done to comply with any contract Disclosed in the Disclosed Information; or
(e) if explicitly requested by the Purchaser in writing.
7.3 A request for the Purchaser’s consent under clause 7.1 (as referred to in clause 7.2) shall be sent in accordance with clause 21. The Purchaser shall, within ten Business Days of receiving a request for written consent under clause 7.1 (and in accordance with clause 21): (i) give such consent; or (ii) inform the Seller that its request has been refused (giving reasonable details of the grounds for refusal). If the Purchaser’s consent or refusal is not received by the Seller within such ten Business Day period, the Purchaser shall be deemed to have consented to the taking of the relevant action.
7.4 The Purchaser may terminate this agreement by written notice to the Seller if, at any time before Completion, the Seller has not complied in all material respects with clause 7.1, and such non-compliance either: (a) is not capable of being cured by the Long Stop Date; or (b) has not been cured by the Seller within 20 Business Days after the Purchaser gives written notice to the Seller specifying the nature and extent of the non-compliance or by the Long Stop Date (whichever is later) provided that the Purchaser may not terminate this agreement pursuant to this clause 7.4 if it, or the Purchaser’s Guarantor, is in material breach of the agreement.
7.5 From the date of this agreement, the Seller, the Target Group Companies and the Purchaser (as applicable) undertake to use their respective reasonable endeavours and negotiate in good faith (and, to the extent not agreed before Completion, from Completion, the Purchaser undertakes to procure that the relevant Target Group Company uses its reasonable endeavours and negotiates in good faith) to agree the terms of one or more commercial agreements between Life Healthcare Group Holdings USD1,000,000 (or one or more of its Affiliates) and a Target Group Company and such agreement(s) shall be consistent with the Licence and Commercial Agreement(s) – Term Sheet and shall become effective at, or as soon as reasonably practicable after, Completion.
7.6 If the Seller and the Purchaser (on behalf of the Target Group Companies) (together the Contracting Parties) cannot agree upon the terms of the Licence and Commercial Agreement(s) by the date that is 60 Business Days after the Completion Date:
(a) either the Seller or the Purchaser shall have the right to submit such dispute to arbitration for resolution (the Referring Party) equivalent in accordance with the process described in this clause 7.6;
(b) the Referring Party shall notify the other party (the Respondent) of its decision to initiate the arbitration proceeding pursuant to this clause 7.6 by delivering written notice to the Respondent within two Business Days of making such referral;
(c) within ten Business Days following receipt of such notice, the Contracting Parties shall use reasonable endeavours to agree on an independent Third Party expert with at least ten years of experience in the licensing of pharmaceutical compounds or products. If the Contracting Parties cannot agree on such expert within such time period, each Contracting Party shall nominate one independent expert satisfying such criteria within such ten Business Day period, and the two independent experts so selected shall nominate the final independent expert within five Business Days of their nomination. If the two experts so selected cannot agree on the final independent expert, either of the Parties shall request the ICC International Centre for ADR to appoint an expert (the Expert). For the avoidance of doubt, it is understood and agreed that such final independent expert should have at least ten years of experience in the licensing of pharmaceutical compounds or products and should be appointed as soon as practicable. All costs of, and associated with, the request for the appointment of an expert by the ICC International Centre for ADR shall be borne equally between the Parties;
(d) within five Business Days of its appointment, the Expert shall set a date for the arbitration, which date shall be no more than 40 Business Days after the date the arbitration is demanded under subclause 7.6(a) above;
(e) the arbitration shall be “baseball-style” arbitration; accordingly, at least ten Business Days prior to the arbitration, each Contracting Party shall provide the Expert with a form of the definitive written agreement of the Licence and Commercial Agreement(s) proposed by it which in each case, must be consistent with the principles outlined in the Licence and Commercial Agreement(s) – Term Sheet and must not contain any provisions that contradict or undermine those principles (each, a Proposed Agreement). Each such Proposed Agreement may be no more than 55 single-sided, single-spaced pages, and must clearly provide and identify the Contracting Party’s position with respect to the disputed matter(sRinggit Malaysia);
(fq) after receiving both Contracting Parties’ Proposed Agreements, not enter into any agreement which is outside the Expert will promptly distribute each Party’s Proposed Agreement(s) to the other Party. No later than five Business Days in advance ordinary course of the arbitration or, if earlier, seven Business Days following receipt its business or which is of such Proposed Agreement(s), the Contracting Parties shall submit to the Expert and exchange response briefs of no more than ten single-sided, single-spaced pages. The Contracting Parties’ briefs may include or attach relevant exhibits in the form of documentary evidence, any other material voluntarily disclosed to the Referring Party in advance, or publicly available information. The Contracting Parties’ briefs may also include or attach demonstratives. Neither Party may have any other communications (either written or oral) with the Expert other than for the sole purpose of engaging the expert or as expressly permitted in this clause 7.6an onerous nature;
(gr) no later than seven Business Days following the arbitration (ornot give any financial or other guarantees, if the Expert does not require an arbitration hearing, the deadline securities or indemnities for receipt of each Contracting Party’s response briefs), the Expert shall issue his or her written decision. The Expert shall select one Contracting Party’s Proposed Agreement(s) (in full and without modification) as his or her decision, and shall not have the authority to render any substantive decision purpose other than to select the Proposed Agreement(s) submitted by either Contracting Party. For the avoidance of doubt, the Expert may only be permitted to select a Proposed Agreement if such agreement contains terms which are consistent with the principles outlined its subsidiaries in the Licence and Commercial Agreement(s) – Term Sheet and does contain any provisions that contradict or undermine those principles. The Expert shall have no discretion or authority with respect to modifying the positions ordinary course of the Contracting Partiesbusiness;
(hs) not commence any litigation or compromise or settle any claim, dispute or other matter in which it is involved where the Expert’s decision shall be final and binding on the Contracting Parties and the written agreement selected value involved exceeds USD1,000,000 (or its equivalent in Ringgit Malaysia), but does not include any legal action taken to defend against suits or legal actions taken brought by the Expert shall constitute a binding agreement between the Contracting Parties (which, for the avoidance of doubt, in the case of the Purchaser shall be binding on the rethird parties.
Appears in 1 contract
Sources: Share Sale Agreement (Viropro Inc)