SWITCHING TO AN OFFER. 6.1 The parties intend that the Transaction will be implemented by way of the Scheme. Nationwide shall be entitled, with the consent of the Panel, to implement the Transaction by way of the Offer rather than the Scheme (a "Switch"), whether before or after the posting of the Scheme Document, but only if: 6.1.1 Virgin Money provides its prior written consent (an "Agreed Switch"), in which case Clause 6.2 shall apply; or 6.1.2 a Competing Proposal occurs, unless, within three Business Days of the announcement of such Competing Proposal, the Virgin Money Board publicly reiterates that it unanimously and unconditionally recommends Nationwide's offer; 6.1.3 an Adverse Recommendation Change occurs; or 6.1.4 any person (other than Nationwide or any person acting in concert with Nationwide) acquires an interest in securities which represents the higher of: (i) more than 15% of the voting rights (as defined in the Code) in Virgin Money; and (ii) more than 5% of the voting rights (as defined in the Code) in Virgin Money in excess of the percentage of such voting rights attaching to those securities in which the relevant person held interests as at the date of this Agreement. 6.2 In the event of an Agreed Switch, unless otherwise agreed with Virgin Money or required by the Panel, the parties agree that: 6.2.1 Nationwide shall: (a) consult with Virgin Money in advance with respect to any announcements relating to the Agreed Switch, its implementation and any proposed changes to the timetable in relation to the implementation of the Agreed Switch; (b) prepare, as soon as reasonably practicable, the Offer Document and related form of acceptance; (c) consult with Virgin Money as to the timing of the publication of the Offer Document and the related form of acceptance; and (d) where reasonably practicable, consult with Virgin Money as to the form and content of the Offer Document and the related form of acceptance; 6.2.2 the Acceptance Condition shall be set at 90 per cent. of the Virgin Money Shares to which the Offer relates (or such other percentage as may be agreed between the parties in writing) after (to the extent necessary) consultation with the Panel, being in any case more than 50 per cent. of the Virgin Money Shares and shall not be capable of being waived below that level; 6.2.3 Nationwide 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 be reasonably likely to cause the Offer not to proceed, to lapse or to be withdrawn, in each case for non- fulfilment of the Acceptance Condition, prior to Day 60 (as defined in the Code) and Nationwide shall ensure that the Offer remains open for acceptances until such time; 6.2.4 Nationwide shall ensure that the Offer is made on the same terms as those set out in the 2.7 Announcement and the only conditions of the Offer shall be the Conditions (subject to such modifications as are necessary as a result of the Switch, including replacing the Scheme Conditions with the Acceptance Condition referred to in Clause 6.2.2) (unless the parties agree otherwise in writing or with any modification or amendments to such terms and Conditions as may be required by the Panel); 6.2.5 if: (a) at any time during the period between the publication of the Offer Document and 5.00 p.m. on the second day prior to Day 39 (as defined in the Code), it becomes reasonably expected that any outstanding Clearance is not likely to be obtained (or waived, if applicable) prior to Day 60 (as defined in the Code); or (b) by 5.00 p.m. on the ninth day prior to Day 39, any such outstanding Clearance has not been obtained (or waived, if applicable), in each case, Nationwide shall promptly consult with Virgin Money as to whether a suspension to the offer timetable should be sought pursuant to Rule 31.4(a) of the Code and, if agreed between Virgin Money and Nationwide, seek, jointly with Virgin Money, the consent of the Panel to suspend the offer timetable no later than the date falling on the second day prior to Day 39; and 6.2.6 Nationwide shall keep Virgin Money informed, on a regular and confidential basis, and in any event as soon as reasonably practicable following receipt of a written request from Virgin Money, of the number of holders of Virgin Money Shares that have validly accepted the Offer or withdrawn their acceptance of the Offer, or incorrectly submitted their acceptance or withdrawal, the identity of such shareholders and the number of Virgin Money Shares held by such shareholders. 6.3 In the event of any Agreed Switch, the parties agree that the provisions of this Agreement shall continue to apply and all provisions of this Agreement relating to the Scheme and the Scheme Document and its implementation shall apply to the Offer, the Offer Document and its implementation mutatis mutandis, save as expressly set out in this Clause 6.
Appears in 2 contracts
Sources: Cooperation Agreement, Cooperation Agreement
SWITCHING TO AN OFFER. 6.1 7.1 The parties intend that as at the Transaction will be implemented date of this Agreement to implement the Acquisition by way means of the Scheme. Nationwide However, Bidco shall be entitledhave the right, with subject to the consent of the PanelPanel (if and to the extent required), to elect at any time to implement the Transaction Acquisition by way of the an Offer rather than the Scheme (a "Switch"), whether before or after the posting of not the Scheme Document, but only Document has been published) (such election being a “Switch”) if:
6.1.1 Virgin Money 7.1.1 Alphawave provides its prior written consent to such Switch (an "“Agreed Switch"”), in which case Clause 6.2 7.2 shall apply (unless the circumstances set out in Clauses
7.1.2 or 7.1.3 apply);
7.1.2 a Competing Proposal is announced by any Third Party or by any member of the Alphawave Group (or an announcement in respect of a Competing Proposal is made by the Panel); or
6.1.2 a Competing Proposal occurs, unless, within three Business Days of the announcement of such Competing Proposal, the Virgin Money 7.1.3 (without prejudice to Qualcomm’s and Bidco’s right to terminate this Agreement pursuant to Clause 12.1) an Alphawave Board publicly reiterates that it unanimously and unconditionally recommends Nationwide's offer;
6.1.3 an Adverse Recommendation Change occurs; or
6.1.4 any person (other than Nationwide or any person acting in concert with Nationwide) acquires an interest in securities which represents the higher of: (i) more than 15% of the voting rights (as defined in the Code) in Virgin Money; and (ii) more than 5% of the voting rights (as defined in the Code) in Virgin Money in excess of the percentage of such voting rights attaching to those securities in which the relevant person held interests as at the date of this Agreement.
6.2 7.2 In the event of an Agreed Switch, unless otherwise agreed with Virgin Money Alphawave or required by the Panel:
7.2.1 the Acceptance Condition shall be set at not more than 75 per cent. of the Alphawave Shares to which the Offer relates or such lesser percentage, being in any case more than 50 per cent. of the Alphawave Shares to which the Offer relates, as may be determined by Bidco with, if and to the extent necessary, the parties agree thatconsent of the Panel;
7.2.2 Qualcomm and Bidco shall prepare the Offer Document and related form of acceptance and, if and to the extent reasonably practicable, Qualcomm and Bidco (as applicable) shall:
6.2.1 Nationwide shall(i) consult Alphawave in a timely manner as to:
(a) consult with Virgin Money in advance with respect to the form and content and timing of the publication of any joint announcements relating to the Agreed Switch, Switch and its implementation and any proposed changes to the timetable in relation to the implementation of the Agreed Switch;; and
(b) preparethe form and contents, as soon as reasonably practicable, the Offer Document and related form of acceptance;
(c) consult with Virgin Money as to the timing of the publication of of, the Offer Document and the related form of acceptance; and
(dii) where reasonably practicableinform ▇▇▇▇▇▇▇▇▇ (or procure that Alphawave is informed), consult with Virgin Money as to on a confidential basis, within two (2) Business Days following receipt of a written request from Alphawave, of the form and content number of Alphawave Shareholders that have:
(a) validly accepted or withdrawn their acceptance of the Offer; or
(b) incorrectly submitted their acceptance or withdrawal.
7.2.3 Bidco shall seek Alphawave’s approval of the contents of the information on Alphawave, or for which Alphawave or the Alphawave Directors are taking responsibility, contained in the Offer Document before it is published, and the related form shall afford Alphawave a reasonable opportunity to consider such document in order to give its approval of acceptancesuch information (such approval not to be unreasonably withheld, conditioned or delayed);
6.2.2 the Acceptance Condition 7.2.4 Neither Qualcomm nor Bidco shall be set at 90 per cent. of the Virgin Money Shares to which the Offer relates (or such other percentage as may be agreed between the parties in writing) after (to the extent necessary) consultation with the Panel, being in any case more than 50 per cent. of the Virgin Money Shares and shall not be capable of being waived below that level;
6.2.3 Nationwide shall not take any action (including publishing, or being treated by the Panel as having published, publishing an acceptance condition invocation notice (as defined in Rule 31.6 of the Code)ACIN) which would be reasonably likely to cause the Offer not to proceed, to lapse or to be withdrawn, in each case for non- non-fulfilment of the Acceptance Condition, prior to Day 60 the 60th day after publication of the Offer Document (or such later date as defined may be set in accordance with Rule 31.3 of the Code) and Nationwide Qualcomm and Bidco shall ensure that the Offer remains open for acceptances acceptance until such time;
6.2.4 Nationwide 7.2.5 Neither Bidco nor Qualcomm shall, without the prior written consent of Alphawave, make any Acceleration Statement unless:
(i) all of the Conditions (other than the Acceptance Condition) have been satisfied or waived (if capable of waiver);
(ii) the Acceleration Statement contains no right for Bidco or Qualcomm (as applicable) to set the statement aside (except with Alphawave’s consent); and
(iii) Qualcomm or Bidco (as applicable) undertakes to Alphawave not to take any action or step otherwise to set the Acceleration Statement aside;
7.2.6 if at any time following publication of the Offer Document it is reasonably expected (in the reasonable opinion of Qualcomm and Bidco) that any outstanding Regulatory Condition is not likely to be satisfied or waived (if capable of waiver) prior to the last date permitted under Rule 31.1 of the Code, Qualcomm and Bidco shall, before the 30th day after publication of the Offer Document (or such later date as Alphawave may agree), consult with Alphawave and the Panel as to whether the offer timetable should be suspended in accordance with Rule 31.4 of the Code (or, if applicable, further suspended) to a date agreed between Qualcomm, Bidco, Alphawave and the Panel, provided always that such extended date (as, if applicable, it may be further extended) shall be no later than the Long Stop Date; and
7.2.7 Qualcomm and Bidco shall ensure that that, other than the Offer is made on the same terms as those set out in the 2.7 Announcement and Acceptance Condition, the only conditions of to the Offer shall be the Conditions (subject excluding the Scheme Conditions) provided that Qualcomm and Bidco shall be entitled, with the prior consent of the Panel (if required), to make such modifications as are necessary as a result of to the Switch, including replacing the Scheme Conditions with the Acceptance Condition referred to in Clause 6.2.2and/or introduce any additional condition(s) (unless the parties agree otherwise in writing or with any modification or amendments to such terms and Conditions as may be required by the Panel);
6.2.5 if:
(a) at any time during the period between the publication of the Offer Document and 5.00 p.m. on the second day prior to Day 39 (as defined in the Code), it becomes reasonably expected that any outstanding Clearance is not likely to be obtained (or waived, if applicable) prior to Day 60 (as defined in the Code); or
(b) by 5.00 p.m. on the ninth day prior to Day 39, any such outstanding Clearance has not been obtained (or waived, if applicable)that, in each case, Nationwide shall promptly consult are required in connection with Virgin Money as the registration of such New Qualcomm Shares under the U.S. Securities Act or any other requirements relating to whether a suspension to such Offer imposed by the offer timetable should be sought pursuant to Rule 31.4(a) of the Code and, if agreed between Virgin Money and Nationwide, seek, jointly with Virgin MoneyU.S. Securities Act, the consent of the Panel to suspend the offer timetable no later than the date falling on the second day prior to Day 39; and
6.2.6 Nationwide shall keep Virgin Money informed, on a regular and confidential basis, and in any event as soon as reasonably practicable following receipt of a written request from Virgin Money, of the number of holders of Virgin Money Shares that have validly accepted the Offer or withdrawn their acceptance of the Offer, or incorrectly submitted their acceptance or withdrawalU.S. Exchange Act, the identity SEC, NASDAQ or any securities regulatory authority of such shareholders and any state or other applicable Law or regulation in the number of Virgin Money Shares held by such shareholdersUnited States).
6.3 In 7.3 The parties agree that in the event case of any Agreed Switch, save as set out in this Clause 7 (Switching to an Offer), all the parties agree that the provisions of this Agreement shall continue to apply and all provisions of this Agreement relating to the Scheme and the Scheme Document and its implementation shall apply to the Offer, the Offer Document and its implementation mutatis mutandis.
7.4 Qualcomm and Bidco each hereby represents that it is not, save at the date of this Agreement, and undertakes that (until such time as expressly set out this Agreement terminates) it shall not become, following the date of this Agreement, required to make a mandatory offer for Alphawave pursuant to Rule 9 of the Code.
7.5 For the avoidance of doubt, Qualcomm and Bidco shall be free to implement the Acquisition by way of an Offer in the event that this Clause 6.Agreement terminates. 8 Revisions to the Acquisition
Appears in 1 contract
Sources: Co Operation Agreement
SWITCHING TO AN OFFER. 6.1 The parties intend that the Transaction will be implemented by way of the Scheme. Nationwide Bidco shall be entitled, with the consent of the PanelPanel (if required), to elect at any time to implement the Transaction by way of the Offer Offer, rather than the Scheme (a "Switch"), whether before or after the posting of the Scheme Document, but only if:
6.1.1 Virgin Money GCP provides its prior written consent consent;
6.1.2 a third party announces a firm intention to make an offer (an "Agreed Switch"), in which case Clause 6.2 shall applywhether or not subject to the satisfaction or waiver of any pre-conditions) for all or part of the issued and to be issued share capital of GCP; or
6.1.2 6.1.3 a Competing Proposal occurs, unless, within three Business Days of the announcement of such Competing Proposal, the Virgin Money GCP Board publicly reiterates that it unanimously and unconditionally recommends Nationwide's offer;
6.1.3 an Adverse Recommendation Change occurs; or
6.1.4 any person (other than Nationwide or any person acting in concert with Nationwide) acquires an interest in securities which represents the higher of: (i) more than 15% of the voting rights (as defined in the Code) in Virgin Money; and (ii) more than 5% of the voting rights (as defined in the Code) in Virgin Money in excess of the percentage of such voting rights attaching to those securities in which the relevant person held interests as at the date of this Agreement.
6.2 In the event of an Agreed Switch, unless otherwise agreed with Virgin Money GCP or required by the Panel, the parties agree thatagree:
6.2.1 Nationwide shall:
(a) consult with Virgin Money in advance with respect to any announcements relating to the Agreed Switch, its implementation and any proposed changes to the timetable in relation to the implementation of the Agreed Switch;
(b) prepare, as soon as reasonably practicable, the Offer Document and related form of acceptance;
(c) consult with Virgin Money as to the timing of the publication of the Offer Document and the related form of acceptance; and
(d) where reasonably practicable, consult with Virgin Money as to the form and content of the Offer Document and the related form of acceptance;
6.2.2 the Acceptance Condition shall be set at 90 75 per cent. cent of the Virgin Money GCP Shares to which the Offer relates (or such other percentage as may be agreed between the parties in writing) writing after (to the extent necessary) consultation with the Panel, being in any case more than 50 per cent. cent of the Virgin Money GCP Shares to which the Offer relates);
6.2.2 Bidco will discuss any announcements relating to the Agreed Switch and shall not be capable its implementation and any proposed changes to the timetable in relation to the implementation of being waived below that levelthe Agreed Switch with GCP in a timely manner;
6.2.3 Nationwide Bidco shall not take any action prior to midnight on the 60th day after publication of the Offer Document (including publishing, or being treated by the Panel as having published, “Day 60”) serve an acceptance condition invocation notice (as defined in under Rule 31.6 of the Code)) which would be ;
6.2.4 if at any time following the publication of the Offer Document the Specified Regulatory Condition is outstanding and it is reasonably expected that the Specified Regulatory Condition is not likely to cause be satisfied or waived (if capable of waiver) by the second day prior to the 39th day after publication of the Offer not to proceedDocument (such date being. “Day 37”), to lapse Bidco shall on or to be withdrawn, in each case for non- fulfilment of before Day 37 seek an extension from the Acceptance Condition, prior Panel to Day 60 (as defined in under Rule 31.4 of the Code) and Nationwide , provided always that such date shall not be later than the Long Stop Date;
6.2.5 Bidco shall ensure that that, subject to the Offer remains open for acceptances until such time;
6.2.4 Nationwide shall ensure that terms of this Agreement, the Offer is made on the same terms as as, or improved terms relative to, those set out in the 2.7 Press Announcement and the only conditions of the Offer shall be the Conditions (subject to such modifications as are necessary as a result of the Switch, including replacing the Scheme Conditions with the Acceptance Condition referred to in Clause 6.2.2) (Error! Reference source not found.), unless the parties agree otherwise in writing or with any modification or amendments to such terms and Conditions as may be required by the Panel);
6.2.5 if:
(a) at any time during the period between the publication of the Offer Document and 5.00 p.m. on the second day prior to Day 39 (as defined in the Code), it becomes reasonably expected that any outstanding Clearance is not likely to be obtained (or waived, if applicable) prior to Day 60 (as defined in the Code); or
(b) by 5.00 p.m. on the ninth day prior to Day 39, any such outstanding Clearance has not been obtained (or waived, if applicable), in each case, Nationwide shall promptly consult with Virgin Money as to whether a suspension to the offer timetable should be sought pursuant to Rule 31.4(a) of the Code and, if agreed between Virgin Money and Nationwide, seek, jointly with Virgin Money, the consent of the Panel to suspend the offer timetable no later than the date falling on the second day prior to Day 39; and
6.2.6 Nationwide Bidco shall keep Virgin Money GCP informed, on a regular and confidential basis, and in any event as soon as reasonably practicable following receipt of a written request from Virgin Money, basis of the number of holders of Virgin Money GCP Shares that have validly accepted the Offer or withdrawn their acceptance of the Offer, or incorrectly submitted their acceptance or withdrawal, the identity of such shareholders and the number of Virgin Money GCP Shares held by such shareholders.
6.3 In the event of any Agreed Switch, the parties agree that the provisions of this Agreement shall continue to apply and all provisions of this Agreement relating to the Scheme and the Scheme Document and its implementation shall apply to the Offer, the Offer Document and its implementation mutatis mutandis, save as expressly set out in this Clause 6.
6.4 Bidco hereby represents that it is not, at the date of this Agreement, and undertakes that (for so long as the Agreement is in force) it shall not become, following the date of this Agreement, required to make a mandatory offer for GCP under Rule 9 of the Code, unless Clause 6.1.2 applies.
Appears in 1 contract
Sources: Cooperation Agreement