PRE-COMPLETION. 8.1 Pending Completion, the Seller shall procure that, subject to Applicable Law and clause 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 (c) 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 expenditure exceeding GBP250,000 in aggregate, with the exception of (1) expenditure in the ordinary and usual course of its business or (2) expenditure within its applicable business plan of the then current financial year that may be in excess of this amount; or (ii) 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 (other than under the TM Assignment), except in the ordinary course of its business; or (iii) acquire or dispose of any share, shares or other interest in any company or partnership or assume or incur any liability, obligation or expense, other than in the ordinary and usual course of its business; or (iv) 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 (v) 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; or (vii) make any material change in the 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, directors, officers or consultants of the Target Group (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) permit any amendments to the Share Plans (insofar as they relate to any of the current or former or prospective employees, directors, officers or consultants of the Target Group); or (x) create, issue, purchase or redeem any shares or create any subsidiary; or (xi) make any change to its constitutional documents; or (xii) 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 GBP100,000; or (xiii) change in any material respect its accounting procedures, principles or practices or change its accounting reference date or change its auditors; or (xiv) change its residence for Tax purposes or knowingly create a new permanent establishment in any jurisdiction; or (xv) amend any Tax return previously filed with a Taxation Authority or amend or revoke any Tax election previously made, or settle any Tax dispute with any Taxation Authority in an amount in excess of GBP100,000; or (xvi) amend or terminate 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 ordinary and usual course of its business; or (xvii) 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 any agreement or arrangement with any member of the Seller’s Group other than to enter into the TM Assignment or formalise any of the Continuing Arrangements which are in the form of a letter of intent (and only to the extent the formal agreement 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 not resident in the United Kingdom; or (xxi) increase 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 (xxii) vary, terminate or waive any of the Intra-Group Payables or the Intra-Group Receivables; or (xxiii) agree, conditionally or otherwise, to do any of the foregoing. 8.2 The Seller may do any of the matters in clause 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 8.3, or without such 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 situation 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 (d) if required to give effect to, or expressly permitted by, the terms of any of the Transaction Documents or any Continuing Arrangement; or (e) if required to be done or not done to comply with any Material Contract; or (f) if 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. 8.3 A request for the Purchaser’s consent under clause 8.1 (as referred to in clause 8.2) shall be sent in accordance with clause 22. The Purchaser shall, within ten Business Days of receiving a request for written consent under clause 8.1 (and in accordance with clause 22): (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. 8.4 Subject to Applicable Law (including Competition Law), prior to Completion, the Seller shall, and shall procure that 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 (c) at the Purchaser’s own cost, all assistance (and make available to the Purchaser such information regarding the Target Group Companies) as the Purchaser may reasonably require for the purpose of the financings to be entered into post-Completion in respect of the Target Group (the Refinancing) (including providing reasonable access to directors and employees 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) 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 each Target Group Company shall): (a) use reasonable endeavours to obtain all necessary Change of Control Consents as soon as possible (and the Seller shall deliver evidence to the Purchaser, on Completion, of any Change of Control Consent that has been obtained prior to Completion). For the avoidance of doubt, the obtaining of Change of Control Consents is 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 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 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 five Business Days prior to Completion) a member of the Target Group and, to the extent required under each Auction NDA, give notice to the other 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 any event no later than 30 days after the date of this Agreement, the Seller shall procure that the TM Assignment is duly executed by Alliance Medical Limited and Life UK Healthcare Limited.
Appears in 1 contract
Sources: Sale and Purchase Agreement
PRE-COMPLETION.
8.1 7.1 Pending Completion, the Seller shall procure that, subject to Applicable Law and this clause 8.2:7.1:
(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;
(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
(cb) 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 expenditure expenditures exceeding GBP250,000 USD1,000,000 in aggregate, with the exception of (1) expenditure in that is expressly contemplated by the Budget or that is incurred within the ordinary and usual course of its business or (2) expenditure within its applicable business plan of the then current financial year that may be in excess of this amountbusiness; 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 (other than under the TM Assignment), except in the ordinary course of its businessCompany; or
(iiiiv) 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 assume or incur any liability, obligation or expense, other than in the ordinary and usual course of its businesspartnership; oror
(ivvii) 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
(v) make any loans exceeding, in aggregate, GBP25,000, except loans to another wholly- owned Target Group Company; or
(viviii) declare, make or pay any dividend or other distribution; or
distribution (viiwhether in cash, stock or in kind) make or makes any material change in the terms and conditions reduction 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 its paid-up share capital except to current or former or prospective employees, directors, officers or consultants of the another Target Group (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)Company; or
(ix) permit save as required by Applicable Law:
(A) terminate the engagement (other than any amendments 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 Share Plans (insofar as they relate engagement or employment of up to any of the current or former or prospective employees, directors, officers or consultants of 27 full time employees that the Target Group)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 GBP100,000USD150,000; or
(xiiixxi) change in any material respect its accounting procedures, principles or practices or change its accounting reference date or change its auditors; or
(xivxxii) 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
(xvxxvi) amend any Tax return previously filed with a Taxation Authority or amend or revoke any Tax election previously madesurrender, dispose of, or settle transfer any Tax dispute with any Taxation Authority in an amount in excess of GBP100,000asset at less than market value; or
(xvixxvii) 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 material agreement, arrangement or obligation to which it is a party where such material agreement, arrangement or obligation was entered other than in the ordinary and usual course of its business; orTarget Group Company;
(xvii) 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
(xixxxviii) enter into or amend any agreement or arrangement with any member of the Seller’s Group Group, other than to enter into formalise the TM Assignment or formalise any of the Continuing Arrangements which are in the form of a letter of intent Licence and Commercial Agreement(s) (and but only to the extent that the formal agreement agreement(s) is on terms substantially in accordance consistent 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 not resident those set out in the United Kingdom; or
(xxiLicence and Commercial Agreement(s) increase 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– Term Sheet); or
(xxiixxix) vary(A) adopt, enter into, terminate or waive 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 Intra-Group Payables 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 Intra-Group Receivablespayment 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
(xxiiixxx) agree, conditionally or otherwise, to do any of the foregoing.foregoing.
8.2 7.2 The Seller may do any of the matters in clause 8.1 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 8.37.3, or without such consent (other than in the case of subclause 8.1(c)(xx)):consent:
(a) if reasonably undertaken in an emergency or disaster situation with the intention of minimising any adverse effect of such situation in relation to the Target Group and then only to the extent reasonably requiredsituation; or
(b) to the extent such action is Permitted Leakage; or
(c) to comply with any applicable legal or regulatory requirements; or
(dc) if required to give effect to, or expressly permitted by, the terms of any of the Transaction Documents or any Continuing ArrangementDocuments, including for the avoidance of doubt the transactions described in clause 7.8 below; oror
(ed) if required to be done or not done to comply with any Material Contractcontract Disclosed in the Disclosed Information; or
(fe) 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.
8.3 7.3 A request for the Purchaser’s consent under clause 8.1 7.1 (as referred to in clause 8.27.2) shall be sent in accordance with clause 2221. The Purchaser shall, within ten Business Days of receiving a request for written consent under clause 8.1 7.1 (and in accordance with clause 2221): (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.
8.4 Subject 7.4 The Purchaser may terminate this agreement by written notice to Applicable Law (including Competition Law)the Seller if, prior to at any time before Completion, the Seller shallhas not complied in all material respects with clause 7.1, and shall procure 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 (including any relevant Senior Employeeas applicable) shallundertake to use their respective reasonable endeavours and negotiate in good faith (and, allow or provide to the Purchaserextent not agreed before Completion, during normal business hours 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 any 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 Day and on reasonable notice to Days after the Seller:Completion Date:
(a) reasonable access to, and either the Seller or the Purchaser shall have the right to take copies of submit such dispute to arbitration for resolution (at the Purchaser’s own cost), Referring Party) in accordance with the books, records and documents of or relating process described in whole or in part to the Target Groupthis clause 7.6;
(b) reasonable access 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 directors and employees Respondent within two Business Days of the Target Group (who shall be instructed to give all making such information, assistance and explanations as the Purchaser or its agents may reasonably request); andreferral;
(c) at the Purchaser’s own cost, all assistance (and make available to the Purchaser within ten Business Days following receipt of such information regarding the Target Group Companies) as the Purchaser may reasonably require for the purpose of the financings to be entered into post-Completion in respect of the Target Group (the Refinancing) (including providing reasonable access to directors and employees 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) 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 basisnotice, the Seller Contracting Parties 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 each Target Group Company shall):
(a) use reasonable endeavours to obtain all necessary Change agree on an independent Third Party expert with at least ten years of Control Consents as soon as possible (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 Seller two independent experts so selected shall deliver evidence 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 Purchaser, on Completion, of any Change of Control Consent that has been obtained prior to CompletionExpert). 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 obtaining licensing of Change pharmaceutical compounds or products and should be appointed as soon as practicable. All costs of, and associated with, the request for the appointment of Control Consents is not a condition precedent to Completion; andan expert by the ICC International Centre for ADR shall be borne equally between the Parties;
(bd) subject to Applicable Law (including Competition Laws) consult with the Purchaser as to the strategy in obtaining the Change within five Business Days of Control Consents and 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 dispatchedits appointment, the Approved LHG Shareholder CircularExpert 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) or above;
(e) the Purchaser’s intentions regarding the Target Group following Completion.
8.6 Subject to Applicable Law (including Competition Law)arbitration shall be “baseball-style” arbitration; accordingly, 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 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 five ten Business Days prior to Completion) the arbitration, each Contracting Party shall provide the Expert with a member form of the Target Group anddefinitive 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 extent required under disputed matter(s);
(f) after receiving both Contracting Parties’ Proposed Agreements, the Expert will promptly distribute each Auction NDA, give notice Party’s Proposed Agreement(s) to the other parties 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 such Auction NDA 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 give effect to such assignment.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;
8.8 As soon as reasonably practicable following the date of this agreement, and in any event (g) no later than 30 days after seven Business Days following the date of this Agreementarbitration (or, if the Expert does not require an arbitration hearing, the Seller deadline for receipt of each Contracting Party’s response briefs), the Expert shall procure 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 TM Assignment is duly executed 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 Alliance Medical Limited and Life UK Healthcare Limited.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.)