Switching to a Takeover Offer. 5.1 The parties currently intend that the Acquisition will be implemented by way of the Scheme. However, to the extent permitted pursuant to applicable Law, Bidder shall be entitled, with the consent of the Panel, to implement the Acquisition by way of a Takeover Offer rather than the Scheme (such election being a Switch) if: 5.1.1 Target provides its prior written consent (such consent not to be unreasonably withheld or delayed) (Agreed Switch); 5.1.2 a Target Board Adverse Recommendation Change occurs; 5.1.3 any of the circumstances set out in Note 2 on Section 8 of Appendix 7 of the Code apply with respect to the Acquisition; or 5.1.4 a Competing Proposal is announced: 5.1.4.1 under Rule 2.7 of the Code; or 5.1.4.2 under Rule 2.4 of the Code, except where the announcement under Rule 2.4 is made by a Third Party and Target had no knowledge of a possible offer for the Target by that Third Party or any person acting in concert with that Third Party; or 5.1.5 Target announces that it or any member of its Group has entered into one or more legally binding agreements (whether or not subject to conditions) to effect a Competing Proposal. 5.2 In the event of an Agreed Switch, unless otherwise agreed with Target or required by the Panel: 5.2.1 Bidder shall: 5.2.1.1 discuss any announcements relating to the Agreed Switch and its implementation and any proposed changes to the timetable in relation to the implementation of the Agreed Switch with Target in a timely manner; 5.2.1.2 prepare, as soon as reasonably practicable, the Offer Document and related form of election and form of acceptance; 5.2.1.3 consult with Target as to the timing of the publication of the Offer Document, the form of election and the form of acceptance; and 5.2.1.4 consult with Target as to the form and content of the Offer Document, the form of election and the form of acceptance allowing Target a reasonable opportunity to consider the draft Offer Document for review and comment; 5.2.2 Bidder agrees to seek Target's approval of the information for which the Target Directors are taking responsibility, contained in the Offer Document before it is published, and to afford Target a reasonable opportunity to consider such document in order to give its approval of such information (such approval not to be unreasonably withheld or delayed); 5.2.3 the Acceptance Condition shall be set at 90% of the Target Shares to which the Takeover Offer relates (or such lesser percentage as may be determined by the Bidder, after, to the extent necessary, consultation with the Panel, being in any case more than 50% of the Target Shares to which the Takeover Offer relates); 5.2.4 Bidder shall ensure that the Takeover Offer is made on substantially the same terms, so far as applicable, as those set out in the Announcement, subject to appropriate amendments, and shall ensure that the only conditions to the Takeover Offer shall be the Conditions and those required by applicable Law, subject to replacing the Scheme Conditions with the Acceptance Condition and any other modifications or amendments to the Conditions as may be required by the Panel, agreed in writing between the parties or required by applicable Law; 5.2.5 Bidder shall keep Target informed as soon as reasonably practicable following a written request from Target of the number of Target Shareholders that have validly returned their acceptance or withdrawal forms or incorrectly completed their acceptance or withdrawal forms, the identity of such shareholders and the number of Target Shares to which such forms relate; 5.2.6 Bidder shall not take any action (including publishing, or being treated by the Panel as having published, an acceptance condition invocation notice (as defined in Rule 31.6 of the Code)) which would cause the Takeover Offer not to proceed, to lapse or to be withdrawn, in each case for non-fulfilment of the Acceptance Condition, prior to midnight on Day 60 (as defined in the Code), and Bidder shall ensure that the Takeover Offer remains open for acceptances until such time; and 5.2.7 all provisions of this agreement relating to the Scheme and its implementation shall apply to the Takeover Offer or its implementation mutatis mutandis (save that, to the extent there is any conflict between any provision of this clause 5 and any other provision of this Agreement, the relevant provision of this clause 5 shall prevail).
Appears in 1 contract
Sources: Co Operation Agreement
Switching to a Takeover Offer. 5.1 6.1 The parties currently intend that the Acquisition will be implemented by way of the Scheme. However, to the extent permitted pursuant to applicable Law, Bidder Bidco shall be entitled, with the consent of the Panel, to implement the Acquisition by way of a Takeover Offer rather than the Scheme (such election being a "Switch") only if:
5.1.1 Target 6.1.1 IMImobile provides its prior written consent (such consent not to be unreasonably withheld or delayed) ("Agreed Switch");; or
5.1.2 a Target Board 6.1.2 an IMImobile Independent Director Adverse Recommendation Change occurs;
5.1.3 any of the circumstances set out in Note 2 on Section 8 of Appendix 7 of the Code apply with respect to the Acquisition; or
5.1.4 a Competing Proposal is announced:
5.1.4.1 under Rule 2.7 of the Code; or
5.1.4.2 under Rule 2.4 of the Code, except where the announcement under Rule 2.4 is made by a Third Party and Target had no knowledge of a possible offer for the Target by that Third Party or any person acting in concert with that Third Party; or
5.1.5 Target announces that it or any member of its Group has entered into one or more legally binding agreements (whether or not subject to conditions) to effect a Competing Proposal.
5.2 6.2 In the event of an any Agreed Switch, unless otherwise agreed with Target in writing between Bidco and IMImobile or required by the Panel:
5.2.1 Bidder shall:
5.2.1.1 discuss any announcements relating to the Agreed Switch and its implementation and any proposed changes to the timetable in relation to the implementation of the Agreed Switch with Target in a timely manner;
5.2.1.2 prepare, as soon as reasonably practicable, the Offer Document and related form of election and form of acceptance;
5.2.1.3 consult with Target as to the timing of the publication of the Offer Document, the form of election and the form of acceptance; and
5.2.1.4 consult with Target as to the form and content of the Offer Document, the form of election and the form of acceptance allowing Target a reasonable opportunity to consider the draft Offer Document for review and comment;
5.2.2 Bidder agrees to seek Target's approval of the information for which the Target Directors are taking responsibility, contained in the Offer Document before it is published, and to afford Target a reasonable opportunity to consider such document in order to give its approval of such information (such approval not to be unreasonably withheld or delayed);
5.2.3 6.2.1 the Acceptance Condition shall be set at 90% not more than seventy-five (75) per cent. of the Target IMImobile Shares to which the Takeover Offer relates (or such lesser percentage as may be determined by agreed between the Bidder, parties in writing after, to the extent necessary, consultation with the Panel, being in any case more than 50% of the Target Shares to which the Takeover Offer relates);
5.2.4 Bidder 6.2.2 Bidco shall not take any action which would cause the Offer not to proceed, to lapse or to be withdrawn in each case for non-fulfilment of the Acceptance Condition prior to the 60th day after publication of the Offer Document as such term is construed by the Code ("Day 60") and Bidco shall ensure that the Takeover Offer is made on substantially the same terms, so far as applicable, as those set out in the Announcement, subject to appropriate amendments, and remains open for acceptances until such time;
6.2.3 Bidco shall ensure that the only conditions to of the Takeover Offer shall be the Conditions and those required by applicable Law, (subject to replacing the Scheme Conditions with the Acceptance Condition referred to in clause 6.2.1 and any other modifications or amendments to the Conditions such terms and conditions as may be required by the Panel, agreed in writing between Panel or which are necessary as a result of the parties or required by applicable LawAgreed Switch);
5.2.5 Bidder 6.2.4 Bidco shall keep Target informed as soon as reasonably practicable IMImobile informed, on a confidential basis and on the next Business Day following receipt of a written request from Target IMImobile, of the number of Target Shareholders holders of IMImobile Shares that have validly returned their acceptance or withdrawal forms or incorrectly completed their withdrawal or acceptance or withdrawal forms, forms and the identity of such shareholders and the number of Target IMImobile Shares to which such forms relate;
5.2.6 Bidder shall not take any action (including publishing, or being treated by the Panel as having published, an acceptance condition invocation notice (as defined in Rule 31.6 of the Code)) which would cause the Takeover Offer not to proceed, to lapse or to be withdrawn, in each case for non-fulfilment of the Acceptance Condition, prior to midnight on Day 60 (as defined in the Code), and Bidder shall ensure that the Takeover Offer remains open for acceptances until such time; and
5.2.7 6.2.5 the parties agree:
(a) that all provisions of this agreement other than the provisions of clause 4 shall continue to apply save as set out in this clause 6.2; and
(b) all provisions of this agreement relating to the Scheme and its implementation shall apply to the Takeover Offer or its implementation mutatis mutandis (save thatmutandis.
6.3 In the event of an Agreed Switch, Bidco shall:
6.3.1 submit, or procure the submission of, drafts and revised drafts of the Offer Document to IMImobile for review and comment and shall take into account any reasonable comments from IMImobile for the extent there purposes of preparing revised drafts; and
6.3.2 obtain IMImobile's approval for the contents of the information on IMImobile contained in the Offer Document before it is any conflict between any provision of this clause 5 posted or published and any other provision of this Agreement, the relevant provision of this clause 5 shall prevail)afford IMImobile sufficient time to consider such documents in order to give its approval.
Appears in 1 contract
Sources: Cooperation Agreement