Common use of SWITCHING TO AN OFFER Clause in Contracts

SWITCHING TO AN OFFER. 6.1 The parties intend that the Transaction will be implemented by way of the Scheme. Bidco shall be entitled, with the consent of the Panel (if required), to elect at any time to implement the Transaction by way of the Offer, rather than the Scheme Switch only if: 6.1.1 Aggreko provides its prior written consent; 6.1.2 a third party announces a firm intention to make an offer (whether or not subject to the satisfaction or waiver of any pre-conditions) under Rule 2.7 of the Code for all or part of the issued, and to be issued share capital of Aggreko; or 6.1.3 an Aggreko Board Adverse Recommendation Change occurs. 6.2 In the event of an Agreed Switch, unless otherwise agreed with Aggreko or required by the Panel, the parties agree: 6.2.1 the Acceptance Condition shall be set at 75 per cent. of the Aggreko Shares (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 voting rights attaching to Aggreko Shares); 6.2.2 Bidco will 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 Aggreko in a timely manner; 6.2.3 Bidco shall not take any action which would cause the Offer not to proceed, to lapse or to be withdrawn, in each case for non-fulfilment of the Acceptance Condition, prior to midnight on the 60th day after publication of the Offer Document (or such later date as may be the last date for the Offer to be declared unconditional as to acceptances under Day 60 for acceptances until such time; 6.2.4 Bidco shall not, without the prior consent of Aggreko, declare the Offer unconditional as to acceptances prior to Day 60, unless all of the remaining Conditions either: (i) have been satisfied or waived (if capable of waiver); or (ii) are reasonably expected to be satisfied or waived (if capable of waiver) prior to the last date permitted under Rule 31.7 of the Code; 6.2.5 if at any time following the publication of the Offer Document it is reasonably expected that any outstanding Regulatory Conditions are not likely to be satisfied or waived (if capable of waiver) prior to the last date permitted under Rule 31.7 of the Code, Bidco shall, before the 30th day after the publication of the Offer Document (or such later day as Aggreko may agree), consult with Aggreko and the Panel as to whether an extension to Day 60 should be sought, rather than an extension under Rule 31.7 and, if so, seek the consent of the Panel to extend Day 60 to a date agreed with Aggreko and the Panel, provided always that such date shall not be later than the Long Stop Date; 6.2.6 Bidco shall ensure that the Offer is made on the same terms as those set out in the Press Announcement and the only conditions of the Offer shall be the Conditions (subject to replacing the Conditions in paragraph 1 of Part A of Schedule 1 to the Press Announcement with the Acceptance Condition referred to in Clause 6.2.1), 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; and 6.2.7 Bidco shall keep Aggreko informed, on a regular and confidential basis, of the number of holders of Aggreko Shares that have validly accepted the Offer or withdrawn their acceptance of the Offer, or incorrectly submitted their acceptance or w ithdrawal, the identity of such shareholders and the number of Aggreko Shares held by such shareholders. 6.3 In the event of any Agreed Switch, the parties agree that 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 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 Aggreko under Rule 9 of the Code, unless Clause 6.1.2 applies and an Aggreko Board Adverse Recommendation Change occurs.

SWITCHING TO AN OFFER. 6.1 The parties Parties intend as at the date of this Agreement that the Transaction will be implemented by way of the Scheme. Bidco However, the Bidder shall be entitled, with the consent of the Panel (if required)Panel, to elect at any time to implement the Transaction by way of the Offer, rather than the Scheme Switch (a “Switch”) but only if: 6.1.1 Aggreko (a) the Target provides its prior written consentconsent in respect of the Switch (an “Agreed Switch”); 6.1.2 (b) a third party announces a firm intention to make an offer (whether or not subject to the satisfaction or waiver of any pre-conditions) under Rule 2.7 of the Code for all or part of the entire issued, and to be issued issued, share capital of Aggreko; orthe Target, which would result in any person other than the Bidder and/or persons acting in concert with the Bidder acquiring control (as defined in the Code) of the Target; 6.1.3 an Aggreko (c) a Target Board Adverse Recommendation Change occurs; or (d) the Target adjourns one or more of the General Meeting, Court Meeting or the Sanction Hearing, in each case without the prior written consent of the Bidder and other than if such adjournment is caused by logistical or practical reasons beyond the Target’s reasonable control. 6.2 In the event of an Agreed Switch, unless otherwise agreed with Aggreko between the Parties or required by the Panel, Panel and provided none of the parties agreecircumstances referred to in Clauses 6.1(b) to 6.1(d) have arisen: 6.2.1 (a) the Acceptance Condition shall be set at 75 per cent. of the Aggreko Target Shares to which the Offer relates (or such other percentage as may be required by the Panel or as may be agreed between the parties Parties in writing writing) after (to the extent necessary) consultation with the Panel, being in any case more than 50 per cent. of the voting rights attaching to Aggreko Target Shares); 6.2.2 Bidco will discuss any (b) the Bidder shall: (i) consult with Target in a timely manner the form and content and timing of publication of joint 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 Aggreko in a timely mannerSwitch; 6.2.3 Bidco (ii) prepare, as soon as reasonably practicable the Offer Document and related form of acceptance; and (iii) allow the Target reasonable opportunity to provide comments on the content and timing of publication of, the Offer Document and the related form of acceptance, and shall consider in good faith comments proposed by the Target and received by the Bidder within a reasonable period prior to publication; (c) the Bidder agrees to seek the Target’s approval of the contents of the information on the Target or otherwise 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, conditioned or delayed); (d) the Bidder shall not take any action (including publishing an ACIN or specifying in the Offer Document an unconditional date which is earlier than Day 60 (as defined in the Code)) which would cause the Offer not to proceed, to lapse or to be withdrawn, in each case for non-fulfilment of the any Acceptance Condition, prior to midnight on the 60th day after publication of the Offer Document Day 60 (or such later date as may be the last date for the Offer to be declared unconditional as to acceptances under Day 60 for acceptances until such time; 6.2.4 Bidco shall not, without the prior consent of Aggreko, declare the Offer unconditional as to acceptances prior to Day 60, unless all of the remaining Conditions either: (i) have been satisfied or waived (if capable of waiver); or (ii) are reasonably expected to be satisfied or waived (if capable of waiver) prior to the last date permitted under it set in accordance with Rule 31.7 31.3 of the Code; 6.2.5 if at any time following the publication of the Offer Document it is reasonably expected that any outstanding Regulatory Conditions are not likely to be satisfied or waived (if capable of waiver) prior to the last date permitted under Rule 31.7 of the Code, Bidco shall, before the 30th day after the publication of the Offer Document (or such later day as Aggreko may agree), consult with Aggreko and the Panel as to whether an extension to Day 60 should be sought, rather than an extension under Rule 31.7 and, if so, seek the consent of the Panel to extend Day 60 to a date agreed with Aggreko and the Panel, provided always that such date shall not be later than the Long Stop Date; 6.2.6 Bidco Bidder shall ensure that the Offer is made on the same terms as those set out in the Press Announcement and the only conditions of the Offer shall be the Conditions (subject to replacing the Conditions in paragraph 1 of Part A of Schedule 1 to the Press Announcement with the Acceptance Condition referred to in Clause 6.2.1), unless the parties agree otherwise in writing or with any modification or amendments to remains open for acceptance until such terms and Conditions as may be required by the Panel; and 6.2.7 Bidco shall keep Aggreko informed, on a regular and confidential basis, of the number of holders of Aggreko Shares that have validly accepted the Offer or withdrawn their acceptance of the Offer, or incorrectly submitted their acceptance or w ithdrawal, the identity of such shareholders and the number of Aggreko Shares held by such shareholders. 6.3 In the event of any Agreed Switch, the parties agree that 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 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 Aggreko under Rule 9 of the Code, unless Clause 6.1.2 applies and an Aggreko Board Adverse Recommendation Change occurs.time;

SWITCHING TO AN OFFER. 6.1 The parties intend that the Transaction will be implemented by way of the Scheme. Bidco Bidder shall be entitled, with have the right (a “Right to Switch”) (subject always to the consent of the Panel (Panel, if required), whether before or after the posting of the Scheme Document, to elect at any time to implement the Transaction by way of the Offer, an Offer rather than the Scheme Switch only if: 6.1.1 Aggreko (A) Target provides its prior written consent; 6.1.2 (B) a third party announces a firm intention to make an offer pursuant to Rule 2.7 of the Code (whether or not subject to the satisfaction or waiver of any pre-conditions) under Rule 2.7 in respect of the Code for all or part of the issued, issued and to be issued share capital of Aggrekothe Target; or 6.1.3 an Aggreko (C) a Target Board Adverse Recommendation Change occurs. 6.2 In the event of an Agreed Switch, unless otherwise agreed with Aggreko Target or required by the Panel, the parties agreeagree that: 6.2.1 (A) the acceptance condition to the Offer (the “Acceptance Condition Condition”) shall be set at 75 per cent. of the Aggreko Shares (or such other lesser percentage as Bidder and Target may be agreed between the parties in writing after (agree after, to the extent necessary) , consultation with the Panel, being in any case more than 50 per cent. .) of the voting rights attaching to Aggreko the Target Shares); 6.2.2 Bidco will (B) to the extent reasonably practicable, Bidder shall 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 Aggreko the Target in a timely manner; 6.2.3 Bidco (C) Bidder shall not take any action (including publishing an acceptance condition invocation notice (as defined in Rule 31.6 of the Code)) which would cause the Offer not to proceed, to lapse or to be withdrawn, withdrawn in each case for non-fulfilment of the Acceptance Condition, any Condition prior to midnight on the 60th sixtieth (60th) day after following the publication of the Offer Document (or such later date as may be is set in accordance with Rule 31.3 of the last date for Code and Notes on that Rule) (“Day 60”) and Bidder shall ensure that the Offer to be declared unconditional as to acceptances under Day 60 remains open for acceptances until such time; 6.2.4 Bidco (D) Bidder shall not, without the prior written consent of AggrekoTarget, declare the Offer unconditional as to acceptances prior to Day 60, unless make any acceleration statement unless: (i) all of the remaining Conditions either: (iother than the Acceptance Condition) have been satisfied or waived (if capable of waiver); or (ii) are reasonably expected the acceleration statement contains no right for Bidder to be satisfied set the statement aside (except with Target consent); and (iii) Bidder undertakes to Target not to take any action or waived (if capable of waiver) prior step otherwise to set the last date permitted under Rule 31.7 of the Codeacceleration statement aside; 6.2.5 if (E) If: (i) at any time following during the period between the publication of the Offer Document and 5.00 p.m. on the date falling on the second day prior to Day 39 (as defined in the Code), it is becomes reasonably expected that any outstanding Regulatory Conditions are Condition is not likely to be satisfied or waived (if capable of waiver) prior to the last date permitted under Rule 31.7 of the Code, Bidco shall, before the 30th sixtieth (60th) day after following the publication of the Offer Document Document; or (or such later ii) by 5.00 p.m. on the date falling on the ninth day prior to Day 39 (as Aggreko may agreedefined in the Code), any outstanding Regulatory Condition has not been satisfied, in each case, Bidder shall promptly consult with Aggreko and the Panel Target as to whether an extension a suspension to Day 60 the offer timetable should be sought, rather than an extension under sought pursuant to Rule 31.7 31.4(a) of the Code and, if so, seek seek, jointly with Target, the consent of the Panel to extend suspend the offer timetable no later than the date falling on the second day prior to Day 60 39 (as defined in the Code); (F) the Conditions, as set out in Appendix 1 to a date the Press Announcement, shall be incorporated into the announcement of such Offer and into the Offer Document and unless the parties agree otherwise in writing, the only conditions to the Offer shall be the Conditions set out in Appendix 1 to the Press Announcement, subject to replacing the Scheme Condition with the Acceptance Condition together with such modifications as are agreed with Aggreko and in writing by the parties or, where required by the Code, by the Panel, provided always that such date shall not be later than or which are necessary as a result of the Long Stop Dateswitch from the Scheme to the Offer; 6.2.6 Bidco (G) Bidder shall ensure that the Offer is otherwise made on the same terms as those set out in the Press Announcement and the only conditions of the Offer shall be the Conditions (or improved terms, subject to replacing the Conditions such modifications as are agreed in paragraph 1 of Part A of Schedule 1 to the Press Announcement with the Acceptance Condition referred to in Clause 6.2.1), unless writing by the parties agree otherwise in writing or with any modification or amendments to such terms and Conditions as may be or, where required by the Code, by the Panel, or which are necessary as a result of the switch from the Scheme to the Offer; and 6.2.7 Bidco (H) Bidder shall keep Aggreko Target informed, on a regular and confidential basisbasis and in any event within two Business Days following a written request from Target, of the number of holders of Aggreko Shares Target Shareholders that have have: (i) validly accepted the Offer or withdrawn returned their acceptance of the Offer, or forms; (ii) returned but incorrectly submitted completed their acceptance or w ithdrawalforms; (iii) validly returned their withdrawal forms; and (iv) returned but incorrectly completed their withdrawal forms, and in each case the identity of such shareholders and the number of Aggreko Target Shares held by to which such shareholdersforms relate. 6.3 In the event of any Agreed Switch, the parties agree that 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 or its implementation mutatis mutandis, save as set out in this Clause 6. 6.4 Bidco Bidder hereby represents that it is not, at the date of this Agreement, and undertakes that (for so long as the Agreement is in forceforce and save where Target provides its prior written consent) it shall not become, following the date of this Agreement, required to make a mandatory offer for Aggreko Target under Rule 9 of the Code, Code unless Clause 6.1.2 6.1(B) applies and an Aggreko a Target Board Adverse Recommendation Change occurs.